Mayor & City Council of Baltimore v. Mathews

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 of enforcement of Title VI of the 1964 Civil Rights Act, §§ 601 et seq. of the Act, 42 U.S.C. §§ 2000d et seq. At the time that Maryland sued, HEW was about to initiate administrative enforcement of Title VI, i. e., administrative proceedings which might result in the termination of outstanding grants of federal funds and the denial of new grants, with respect to Maryland’s system of higher education. When Baltimore sued, HEW’s administrative proceedings which might result in the termination of federal funds with respect to Baltimore’s elementary and secondary schools had been initiated and hearings were scheduled to begin approximately one month after the date that suit was filed.

The district court granted injunctive relief, holding that HEW had acted in contravention of Title VI in seeking compliance therewith by (1) failing “arbitrarily and whimsically” to attempt to secure compliance with Title VI by voluntary means, and (2) “vindictively” refusing to assume a programmatic approach in the negotiation process. HEW was enjoined (1) from proceeding with the pending administrative enforcement proceedings against Baltimore and Maryland, (2) from deferring consideration of applications for future funding, and (3) from reinstituting administrative enforcement proceedings until HEW had, inter alia, (a) adopted and promulgated administrative regulations, effective uniformly throughout the United States, setting forth specific standards for compliance with Title VI in the administration of programs of federal financial assistance to institutions of higher education, (b) made a separate and specific analysis of each statutory aid program to determine the existence of noncompliance in the administration of such program, and (c) specified the actions which, in HEW’s view, are necessary to remedy the alleged noncompliance and specified standards by which the existence of noncompliance will be determined. Mandel v. U. S. Dept. of Health, Education and Welfare, 411 F.Supp. 542 (D.Md.1976).

We agree that Maryland is entitled to injunctive relief, but not in the form granted by the district court. We disagree that Baltimore is entitled to any relief. We think that the district court should have concluded that, on the record before it, it would have been improper to grant relief in Baltimore’s case. We reach these conclusions for the reasons that follow.

I.

Title VI of the 1964 Civil Rights Act, §§ 601 et seq. of the Act, 42 U.S.C. §§ 2000d et seq., directs that:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

42 U.S.C. § 2000d. In order to implement the legislative mandate, federal agencies empowered to extend financial assistance are required to issue “rules, regulations, or orders of general applicability” to carry out the objectives of § 2000d. 42 U.S.C. § 2000d-l. If recipients of federal aid fail to abide by or to comply with these rules and regulations, the relevant federal agency may terminate outstanding grants, refuse to renew them, or halt consideration of applications for additional funding. Id. However, any such action must be preceded by: (1) notice of alleged noncompliance to the offending recipient; (2) a determination that compliance cannot be secured by voluntary means; (3) an express finding on the record, after an opportunity for hearing, that the recipient is not, in fact, complying with the law; and (4) a full written report to committees of the House and Senate having jurisdiction over the program or activity receiving federal aid, within which discrimination is alleged to have occurred. Id. Even after these conditions are met, § 602, 42 U.S.C. § 2000d-l, provides that “[n]o such action [terminating or otherwise restricting federal financial assistance] shall become effective until thirty days have elapsed after the filing of such report.” Section 603 of the Act, 42 U.S.C. § 2000d-2, provides further that any person aggrieved by such action (including any state or political subdivision thereof) may obtain judicial review under the Administrative Procedure Act, and that no such action shall be deemed “committed to unreviewable agency discretion.” The Administrative Procedure Act, in turn, allows the federal agency or federal courts to postpone or stay agency action pending judicial review. It also allows the federal courts to set aside such action in certain specified instances. 5 U.S.C. §§ 705, 706(2).

Given this comprehensive scheme of administrative adjudication, congressional oversight, and judicial review, it is clear that the City of Baltimore and the State of Maryland, before bringing the instant lawsuit, were not faced with an immediate threat of losing federal financial assistance.¹ It is also clear that the district court invoked the extraordinary remedy of prior restraint against administrative proceedings which were far from complete, and were subject to review (as a matter of right) before taking effect.

By issuing an interlocutory injunction, the district court ignored a “long set-tied” rule of judicial administration and its first corollary: (1) a litigant “is [not] entitled to judicial relief for any supposed or threatened injury until the prescribed administrative remedy has been exhausted”;² and (2) “judicial intervention in uncompleted administrative proceedings, as distinguished from judicial checking by statutorily-established methods of review,” is strongly disfavored as a matter of general practice.³ The district court justified its action by invoking a recognized exception to the foregoing rules: when an agency acts in “brazen” defiance of its statutory authorization, the courts will not wait for the underlying proceedings to run their course.⁴ Rather, the federal courts will intervene to preserve the status quo, prevent the infringement of substantial rights that might otherwise be sacrificed, and protect against the subversion of congressional policy.⁵ Two decisions exemplify this doctrine with particular clarity: Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958) and our unanimous in banc decision in Taylor v. Cohen, 405 F.2d 277 (4 Cir. 1968).

In Leedom, the Supreme Court upheld the propriety of a prior restraint against a certification proceeding brought by the National Labor Relations Board. Contrary to express language contained in § 9(b)(1) of the National Labor Relations Act, 29 U.S.C. § 159(b)(1), the Board attempted to certify a mixed professional/nonprofessional bargaining unit. The certification was attacked in federal court, and the NLRB countered by arguing that its determination was not a “final order” otherwise subject to judicial review. The Court, however, disagreed:

This suit is not one to “review,” in the sense of that term as used in the Act, .. Rather, it is one to strike down an order of the Board made in excess of its delegated powers and contrary to a specific prohibition in the Act. 358 U.S. at 188, 79 S.Ct. at 184 (emphasis added).

In Taylor, like the instant case, plaintiffs sought to restrain the termination of federal financial assistance under Title VI. HEW had determined that a school district’s refusal to adopt a complete modification of its “freedom of choice” desegregation plan constituted a continuing violation of the statute. HEW therefore initiated administrative proceedings, after the appropriate notices and determinations, with the objective of terminating federal funding. Plaintiffs, the parents of affected school children, sought and received an injunction from the district court. We reversed, however, holding judicial intervention to be unwarranted and inappropriate, given the fact that “there has been no showing that HEW disregarded provisions of the Civil Rights Act of 1964.” 405 F.2d at 281 (emphasis added).

We believe (along with the district court) that, consistent with Leedom and Taylor, the principal question to be decided is whether, on this record, the City and the State have demonstrated that HEW has acted ultra vires in its efforts to effect Title VI compliance by the City and State. If HEW acted erroneously, but within the boundaries of the enabling statute, its mistakes can be corrected only through ordinary congressional and judicial review. On the other hand, if the agency has exceeded its statutory authority, the district court was fully authorized to impose a prior restraint.

II.

We conclude that, vis á vis the State of Maryland, HEW acted ultra vires. Accordingly, HEW’s acts and omissions firmly established federal jurisdiction and justify the award of injunctive relief, although not in the form granted by the district court. We conclude that, vis á vis the City of Baltimore, while HEW may have committed other errors — a question that we may not presently properly decide — it has not acted in excess of the statute. Accordingly, federal jurisdiction was lacking and no relief should have been awarded.

A. Generally.

As we have already indicated, HEW, or any other agency subject to Title VI, must follow a progression before federal aid may be terminated, spelled out, in part, in the text of § 602 and fixed, in part, by the agency’s regulations which § 602 authorizes and directs the agency to promulgate. Section 602 states that termination must be preceded by administrative hearings which, in turn, must be preceded by efforts at achieving voluntary compliance through negotiation and consultation. 42 U.S.C. § 2000d — 1.

Faithful to the mandate of § 602, HEW has promulgated a detailed regulation codified in 45 C.F.R. Part 80. The regulation applies to “any program for which federal financial assistance is authorized to be extended to a recipient under a law administered by [HEW],” including all of the financial assistance for various educational programs outlined in an appendix to Part 80. 45 C.F.R. § 80.2. The regulation also enumerates proscribed acts of discrimination, requires assurances of equal treatment before any grant is awarded, and gives illustrative examples of how certain deficient programs can be corrected and brought into compliance with the statute. 45 C.F.R. §§ 80.3, 80.4, 80.5.

Most important (for purposes of this appeal), the regulation requires HEW officials to seek the cooperation and aid of recipients in bringing about compliance and “to help [recipients] comply voluntarily” with Title VI and HEW specifications. 45 C.F.R. § 80.6(a). If investigation by HEW indicates noncompliance, HEW must resolve the matter “by informal means whenever possible.” 45 C.F.R. § 80.7(d)(1). Administrative hearings are initiated only when efforts at voluntary compliance break down, in accord with the statute itself. 45 C.F.R. §§ 80.8-80.11.

A significant aspect of the effort to facilitate voluntary compliance is the requirement that HEW officials instruct recipients how to comply:

(b) Forms and instructions. The responsible Department officials shall issue and promptly make available to interested persons forms and detailed instructions and procedures for effectuating this part [i. e., 45 C.F.R. Part 80]. 45 C.F.R. § 80.12(b).

Pursuant to this self-imposed obligation, HEW has published an elaborate set of guidelines governing Title VI compliance by elementary and secondary schools. 45 C.F.R. §§ 80.4(c) and 181; Alabama State Teachers Ass’n v. Alabama Public School & College Authority, 289 F.Supp. 784, 787 n.3 (M.D.Ala.1968), summarily aff’d, 393 U.S. 400, 89 S.Ct. 681, 21 L.Ed.2d 631 (1969). It has failed, however, to take comparable action with respect to higher education.

B. The State of Maryland.

HEW’s compliance efforts with respect to Maryland are directed solely to Maryland’s system of higher education; specifically, the various branches of Maryland’s college and university system. HEW’s failure to adopt guidelines applicable to higher education in Maryland has two vital effects. First, in a practical sense, HEW’s omission completely undermines the effectiveness of any effort towards Title VI compliance, either through negotiation or through administrative hearings. Neither party, nor the administrative law judge, has any working knowledge of what constitutes “compliance,” thereby reducing the entire process to a meaningless exchange of theory rather than a determination of fact. Second, in a legal sense, HEW’s failure renders its action to terminate financial assistance, taken to enforce Title VI vis á vis the State, ultra vires and without the force of law.

Our conclusion that HEW’s failure renders its beginning administrative termination proceedings ultra vires stems from the following reasons. The statute requires negotiations looking to voluntary compliance as a first step. It also requires that the appropriate federal agency (here HEW) promulgate regulations to that effect. HEW has complied by adopting 45 C.F.R. Part 80, and binding itself (by virtue of § 80.12(b)) to assist in voluntary compliance and to facilitate negotiations through the issuance of “compliance guidelines” or instructions. With regard to higher education, it has failed to do so, and thus it has violated its own regulation.⁶ Since the regulation, in turn, was adopted pursuant to a statutory mandate, we think that the regulation is elevated to the status of the statute and violation of the regulation becomes a violation of the statute itself. Since HEW has forced the State through negotiations and into the administrative hearings without the guidelines which the statute thus requires, HEW’s conduct is clearly ultra vires and subject to prior restraint. We discuss, at a later point what form the prior restraint should take.

C. The City of Baltimore.

The City of Baltimore stands on a different footing from the State. Baltimore’s compliance with Title VI is sought with respect to primary and secondary schools, the subject of detailed treatment by existing HEW guidelines and directives.⁷ Nonetheless, the district court concluded that, with respect to Baltimore City, relief was warranted because of the quality and quantity of HEW’s negotiating efforts. In addition, the district court criticized HEW’s systematic approach to school desegregation and its failure to negotiate on a school-by-school or program-by-program basis. Thus, the district court concluded that HEW had acted ultra vires, that it had jurisdiction, and that it was proper to decree a prior restraint against further proceedings.

The quantity or quality of negotiations by HEW requires little comment. The record reveals that there were extensive negotiations extending over a two year period.⁸ The record suggests that if any party was responsible for the various delays and the ultimate breakdown of communication, it was more likely the City. Nonetheless, we note that nothing in the language of Title VI or HEW’s own regulation specifies the quantity or quality of attempts to negotiate voluntary compliance. Therefore, we decide only that the quantity and quality of the negotiations are not reviewable now; we do not pass on the question of whether the negotiations are reviewable at another time and, if so, whether the instant negotiations were substandard. The district court’s judgment, based upon a lengthy review of the facts and its own assessment of blame for the impasse which has been reached, should not have been made. The doctrine exemplified by Leedom and Taylor, creating an exception to the general rule against prior restraint of reviewable administrative action, is a narrow one confined to conduct that is clearly ultra vires. Boire v. Greyhound Corp., 376 U.S. 473, 481-82, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964).⁹ Factual judgments of the type reached by the district court should be made first, if at all, by the administrative tribunal (subject, of course, to ordinary channels of judicial review).

There remains for consideration the contention that HEW violated Title VI, and acted ultra vires, by failing to negotiate with the City on a school-by-school or a program-by-program basis. This same contention was raised in Maryland’s case, but in view of our basis of decision we found it unnecessary to discuss it there. This contention is grounded upon § 602 of the Act, which provides, inter alia, that any termination or refusal of federal financial assistance

be limited to the particular political entity, or part thereof, or other recipient as to whom ... a finding [of noncompliance] has been made and, shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found . 42 U.S.C. § 2000d-l (emphasis added).

We do not view § 602 as requiring negotiations on a programmatic basis. Its language is directed solely to the issue of remedy, once negotiations have failed and a finding of noncompliance has been made (after administrative proceedings with full opportunity to be heard). Title VI is a remedial rather than a punitive statute. It was designed to eliminate the financial participation of the federal government in illegal discrimination.¹⁰ At the same time, because federal aid has taken on increased significance in the funding of public education, it provides an economic incentive to end discrimination without resort to the judicial process.¹¹ Section 602, as we view it, provides limitations on the cutoff of federal funds designed to implement the statute’s remedial nature. Once a finding of noncompliance has been made, funds are terminated only to the extent that they are used in, or support programs which practice discrimination. Other programs or activities free from the taint of unequal treatment, may not be condemned along with the blameworthy. Federal funds flowing to these programs and to their innocent beneficiaries, must not be terminated.

Board of Public Instruction of Taylor County, Fla. v. Finch, 414 F.2d 1068 (5 Cir. 1969), relied upon the district court, does not mandate programmatic negotiation. Indeed, it supports the view of § 602 which we now take. In that case, HEW found, after appropriate hearings, that a local school district maintained racially identifiable schools and a segregated faculty. The agency proceeded to terminate all federal funds flowing from it to the district in question. HEW made no determination whether its order should have been restricted to one or more programs receiving federal funds (rather than blindly extending termination to all classes of activity benefiting from federal financial assistance).

The court held that under a proper reading of § 602, the burden of limiting the effects of termination of federal funds rested on HEW, and that HEW was required to tailor its sanction only to those programs found to be infected by discrimination.

As we read Taylor County, its rationale depends upon the premise, with which we agree, that the “programmatic limitation” of § 602 applies solely to the findings which HEW may make as to the need for sanctions and the termination which HEW may order, but it has no application to the method by which HEW shall seek to negotiate voluntary compliance. Indeed, Taylor County almost decides the instant case, because, in dealing with HEW’s argument that § 602 imposed no duty on it to make findings of fact for each program but rather created an affirmative defense to the recipient to show that some programs were untainted, the court stated:

The argument that the statute speaks not to the administrative agency terminating funds, but to the political entity whose funds are threatened, runs afoul of the language of the statute itself. The statute speaks to the “effect” of an order, not to its prerequisites. It states that termination “shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found.” 414 F.2d at 1076. (Emphasis supplied in part.)

Later in its opinion, it made two additional statements which are relevant here:

Limitations on the termination power are not primarily for the benefit of the political agency whose funds are withheld, but for the potential recipients of federal aid. 414 F.2d at 1077.

* * * * * *

[T]he administrative agency seeking to cut off federal funds must make findings of fact indicating either that a particular program is itself administered in a discriminatory manner, or is so affected by discriminatory practices elsewhere in the school system that it thereby becomes discriminatory. Only in this way can a reviewing court know that the effects of the order entered by the agency have been limited to programs not in compliance with the Civil Rights Act. 414 F.2d at 1079. (Emphasis supplied.)

Thus, we are persuaded that HEW had no obligation to negotiate voluntary compliance on a programmatic basis as a condition precedent to the initiation of administrative termination hearings. It therefore did not act ultra vires in failing so to negotiate.

While we do not question that Baltimore City (and the State of Maryland) would prefer to negotiate on a programmatic basis, the law does not require it. The prior restraint should not have been granted and the administrative hearings should have been allowed to proceed. By the same token, we think that it would be inappropriate for us to express any view on HEW’s alternative contention that Taylor County places an unjustifiably restrictive view on the meaning of a terminable “program” under § 602. Note, Board of Public Instruction v. Finch: Unwarranted Compromise of Title VI’s Termination Sanction, 118 U. of Pa.L.Rev. 1113 (1970).

D. Relief in Maryland’s Case.

Although purporting to be a preliminary injunction, the decree entered by the district court effectively terminates the litigation. We do not fault the district court on that score, but we think that the decree it entered must be revised to accomplish two purposes: first, to make it conform to the specific duty imposed on HEW that we conclude has not been carried out, and, second, to fix a timetable in which HEW should and must bring itself into compliance with its own regulation and proceed with the enforcement of Title VI. With regard to the latter, the district court, while enjoining HEW from proceeding with the administrative hearings until HEW had taken certain affirmative steps, fixed no time schedule in which HEW should proceed with the enforcement of Title VI against Maryland if HEW persists in the conclusion, which it has already reached, that Maryland is not in compliance with the statute. With regard to a timetable, we take our cue from the order entered April 1, 1977 by the United States District Court for the District of Columbia in Adams v. Califano, 430 F.Supp. 118 (D.D.C.1977).¹²

Thus, we think that the revised decree to be entered by the district court should order:

1. HEW to cease and desist from initiating or taking any steps towards the initiation of any and all administrative proceedings with respect to alleged noncompliance by the State of Maryland with Title VI, or HEW regulations promulgated thereunder, until the following conditions set forth in paragraphs 2 through 4 have been fulfilled.

2. HEW, within 90 days from the date of the district court’s order, to transmit to the State of Maryland, and to serve upon the district court, final guidelines or criteria specifying the ingredients of an acceptable higher education desegregation plan for Maryland.

3. HEW to require Maryland to submit, within 60 days of receipt by Maryland of the final guidelines or criteria, a revised desegregation plan.

4. HEW to accept or reject such submission by Maryland within 120 days thereafter.

The order should further provide that, during the periods of time subsequent to HEW's fulfillment of paragraph 2 hereof and until compliance by Maryland with Title VI has been achieved, nothing contained therein shall be construed to relieve the parties of their obligation, under Title VI and HEW regulations, to negotiate to effect voluntary compliance by Maryland. The order should further provide that if Maryland shall have failed to submit a revised desegregation plan by the date specified in paragraph 3 of the order, the preliminary injunction therein granted shall automatically be vacated.

No. 76-1493 REVERSED.

No. 76-1494 VACATED AND REMANDED.

1 . The City’s complaint was filed on January 8, 1976.

Between April 17, 1973 and May 5, 1975, the City negotiated with HEW concerning the desegregation of its elementary and secondary schools. On May 5, 1975, HEW, dissatisfied with the progress of the negotiations, filed a formal request for an administrative hearing (together with a recommendation that all federal financial assistance to the City school system be terminated.) II App. 163-73 (No. 76-1493).

Administrative hearings were scheduled to begin on February 3, 1976, but were, of course, foreclosed by the district court’s injunction. It is important to note that at the time of the City’s complaint it was still at least three full steps away from an actual termination of federal aid: (1) an express finding by the administrative law judge that Title VI had been violated; (2) a written report to appropriate congressional committees; and (3) in all likelihood, judicial review (as a matter of right) of any determination adverse to the City’s interests.

The State’s complaint was filed on January 5, 1976.

Between March 12, 1969 and December 15, 1975, the State negotiated with HEW concerning the desegregation of its university system. On December 15, 1975, Martin H. Gerry, Acting Director of HEW’s Office for Civil Rights, made the following comments in a letter addressed to Governor Marvin Mandel: (1) HEW was dissatisfied with the progress of negotiations to date; (2) the State was continuing to violate Title VI; and (3) pursuant to his authority, he would recommend that administrative hearings be commenced. I App. 150-53 (No. 76-1494). The district court’s injunction prevented any formal request from being issued.

It is clear that the State, at the time of its complaint, was still at least four full steps away from the termination of any federal aid: (1) a formal request for administrative hearings (together with HEW’s request for sanctions); and steps (1) through (3), supra, noted in relation to the City’s case.

2 . McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969); Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 82 L.Ed. 638 (1938); 3 K. Davis, Administrative Law Treatise § 20.01 at 56 (1958 ed.). See Johnson v. United States, 126 F.2d 242, 247 (8 Cir. 1942).

The doctrine of exhaustion has long been part of federal jurisprudence, and is grounded upon a variety of reasons: respect for “administrative autonomy”; a desire that administrative “expertise and discretion” should first be brought to bear upon specialized problems; and conservation of judicial energies and resources. Nader v. Volpe, 151 U.S.App.D.C. 90, 466 F.2d 261, 266-68 & nn.32-42 (1972).

3 . Nader v. Volpe, 151 U.S.App.D.C. 90, 466 F.2d 261, 268 (D.C. Cir. 1971). See Whitney National Bank v. Bank of New Orleans, 379 U.S. 411, 422, 85 S.Ct. 551, 558, 13 L.Ed.2d 386 (1965):

[Where Congress] has created a specific statutory scheme for obtaining review, . the doctrine of exhaustion comes into play and requires that the statutory mode of review be adhered to notwithstanding the absence of an express statutory command of exclusiveness. Id.

4 . See, e. g., Leedom v. Kyne, 358 U.S. 184, 188, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958) (district court had jurisdiction to award interim decree setting aside NLRB certification; NLRB found to violate express statutory command in the certification of bargaining units); Skinner & Eddy Corp. v. United States, 249 U.S. 557, 562-63, 39 S.Ct. 375, 63 L.Ed. 772 (1919) (district court had jurisdiction to award interim decree enjoining enforcement of ICC order; ICC found to have permitted new rate filings without hearings required by statute); American General Insurance Co. v. FTC, 496 F.2d 197, 200-01 (5 Cir. 1974) (district court lacked jurisdiction to enjoin FTC antitrust proceeding; FTC did not clearly violate a jurisdictional statute); Coca Cola Co. v. FTC, 475 F.2d 299, 303-04 (5 Cir.), cert. denied, 414 U.S. 877, 94 S.Ct. 121, 38 L.Ed.2d 122 (1973) (district court lacked jurisdiction to order joinder of parties in FTC proceedings; FTC did not violate any statutory command by refusing to join the parties); Taylor v. Cohen, 405 F.2d 277, 280-81 (4 Cir. 1968) (district court lacked jurisdiction to enjoin HEW enforcement proceedings; HEW fully complied with civil rights statute in ordering said proceedings); Elmo Division of Drive-X Co. v. Dixon, 121 U.S.App.D.C. 113, 348 F.2d 342, 344-45 (1965) (district court had jurisdiction to award interim decree enjoining continuation of FTC inquiry into objectionable advertising; FTC was required by statute to proceed by reopening an earlier case).

5 . Put another way, “[t]he deeply established tradition is that courts are available to protect private parties against administrators who are acting in excess of their authority.”

K. Davis, Administrative Law Treatise § 21.00 at 677 (1970 Supp.).

6 . This, in and of itself, contradicts a legal principle to which this circuit has long adhered. Federal agencies will be held to strict compliance with their own regulations and rules of procedure, when a failure to observe them results in prejudice to a party they were designed to protect. EEOC v. General Electric Co., 532 F.2d 359, 371 and n.37 (4 Cir. 1976); McCourt v. Hampton, 514 F.2d 1365, 1370 (4 Cir. 1975); United States v. Heffner, 420 F.2d 809, 811-12 (4 Cir. 1970).

7 . Even without the guidelines, the City’s obligations are far clearer than those of the State. With respect to elementary and secondary schools, desegregation efforts are governed by Brown v. Bd. of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) and its progeny. These cases, in and of themselves, establish “guidelines” that are unambiguous and direct. The legal responsibility of Baltimore City, under the Fourteenth Amendment, is “to come forward with a [desegregation] plan that promises realistically to work, and promises realistically to work now.” Green v. School Board of New Kent County, 391 U.S. 430, 439, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968). (Emphasis in the original.) This is because “the obligation of every school district is to terminate dual school systems at once and to operate now and hereinafter only unitary schools.” Alexander v. Holmes County Board of Education, 396 U.S. 19, 20, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969).

The situation with respect to Maryland is far more complex. In particular, we note the problems associated with institutions such as Morgan State University, which is predominantly black due to the voluntary self-selection of its student body. Black colleges serve a distinct social and cultural role, as suggested by the testimony given before the district court. It is apparent, therefore, that guidelines are needed most in the field of higher education, a field HEW has unjustifiably chosen to ignore.

8 . See note 1, supra.

9 . See Wolf Corporation v. SEC, 115 U.S.App.D.C. 75, 317 F.2d 139, 143 (1963):

[E]xcept in very unusual and limited circumstances Congress did not contemplate a grant of jurisdiction to the courts to prevent abuse or misuse of power by prior restraint of the exercise of the powers [of administrators] . . [S]uch relief is to be very sparingly applied and is limited to cases where on its face the contemplated hearing or other administrative process, if consummated, would be set aside on review on procedural grounds. Id. (Emphasis added.)

10 . In discussing the thrust of Title VI, Senator Pastore noted that:

In the House, a concerted attack was made on title VI as “punitive” or “vindicative.” These charges are undeserved. These characterizations appear to result from a belief that title VI is intended to deny the South the benefit of social welfare programs — that it would punish entire States for any act of discrimination committed within them. This argument merely befogs the issues. It ignores both the purpose of title VI and all of the limitations that have carefully been written into its language.

As is clear, the purpose of title VI is to make sure that funds of the United States are not used to support racial discrimination.

110 Cong.Rec. 7062 (1964), as quoted in Bd. of Public Instruction of Taylor County, Fla. v. Finch, 414 F.2d 1068, 1075 n.11 (5 Cir. 1969).

11 . Indeed, the entire Civil Rights Act of 1964 was adopted in response to the weakness of civil rights enforcement via piecemeal litigation in the federal courts.

[I]n the last decade it has become increasingly clear that progress has been too slow and that national legislation is required to meet a national need which becomes ever more obvious. That need is evidenced, on the one hand, by a growing impatience by the victims of discrimination with its continuance and, on the other hand, by a growing recognition on the part of all our people of the incompatibility of such discrimination with our ideals and the principles to which this country is dedicated. . . . H.R. 7152 [ultimately, the Civil Rights Act of 1964], as amended, . . . is designed as a step toward eradicating significant areas of discrimination on a nationwide basis.

H.R.Rep.No.914, to accompany H.R. 7152, [1964] U.S.Code Cong. & Admin.News pp. 2391, 2393.

Title VI, in particular, was necessary to rescue school desegregation from the bog in which it had been trapped for ten years. The Civil Rights Commission, doubtless better able than any other authority to understand the significance of the Civil Rights Act of 1964, had this to say about Title VI: This statute heralded a new era in school desegregation . . . . Most significantly . . Federal power was to be brought to bear in a manner which promised speedier and more substantial desegregation than had been achieved through the voluntary efforts of school boards and district-by-district litigation. . . . With [federal] funds of such [great] magnitude at stake, most school systems would be placed at a serious disadvantage by termination of Federal assistance.

United States v. Jefferson County Bd. of Education, 372 F.2d 836, 856 (5 Cir. 1966), aff’d in banc as modified, 380 F.2d 385, cert. denied sub nom., Caddo Parish School Bd. v. United States, 389 U.S. 840, 88 S.Ct. 67, 19 L.Ed.2d 103, rehearing denied sub nom., East Baton Rouge Parish School Bd. v. Davis, 389 U.S. 965, 88 S.Ct. 324, 19 L.Ed.2d 382 (1967), quoting from the Report of the U.S. Commission on Civil Rights, Survey of School Desegregation in the Southern and Border States — 1965-66, p. 2.

12 . Adams v. Califano, Civ.Action No. 3095-70 (D.D.C. April 1, 1977) is the latest chapter in a related proceeding brought in our sister circuit. Adams v. Richardson, 351 F.Supp. 636 (D.D.C. 1972); Adams v. Richardson, 356 F.Supp. 92 (D.D.C.), aff’d as modified, 156 U.S.App.D.C. 267, 480 F.2d 1159 (1973); Adams v. Weinberger, 391 F.Supp. 269 (D.D.C. 1975).

In Adams, suit was brought for declaratory and injunctive relief against the Secretary of HEW. The complaint alleged that HEW had done little or nothing to enforce Title VI since its adoption. The district court agreed, and, subject to some modification on appeal, HEW was ordered to undertake specific steps, vis á vis specific states and school districts, in order to effectuate Title VI compliance. The latest order issued in the Adams case, that of April 1, 1977, recognizes that any attempt to enforce Title VI in the area of higher education depends on a fundamental definition of compliance with the statute. Accordingly, the order requires HEW to draft higher education guidelines before any enforcement activity ensues (i. e., either negotiation or administrative hearings).