UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ANITA WHITE; EUGENE SEALS; BIANCA KELLY; JAMES SMITH; MICHELLE MILLER; MARIA SALINAS; and NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, MICHIGAN STATE CONFERENCE, individually and on behalf of all those similarly situated, Plaintiffs, v. JOHN ENGLER, Governor, State of Michigan, in his official capacity; MICHIGAN MERIT AWARD BOARD; DEPARTMENT OF TREASURY; MARK A. MURRAY, State Treasurer, in his official capacity; MICHIGAN DEPARTMENT OF TREASURY; DOROTHY BEARDMORE, President of the State Board of Education, in her official capacity; STATE BOARD OF EDUCATION; ARTHUR E. ELLIS, Superintendent of Public Instruction, in his official capacity; STATE DEPARTMENT OF EDUCATION, Defendants.

Case No. 00-CV-72882 Hon. Patrick J. Duggan

___________________________________________________/

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’

MOTION TO DISMISS

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES............................................................................................................ iii

PLAINTIFFS’ CONCISE STATEMENT OF QUESTIONS PRESENTED.................................... x

CONTROLLING AUTHORITIES.................................................................................................. xi

INTRODUCTION........................................................................................................................... 1

STATEMENT OF FACTS............................................................................................................... 3

STANDARD OF REVIEW.............................................................................................................. 3

ARGUMENT................................................................................................................................... 6

I. PLAINTIFFS’ CLAIMS ARE NOT BARRED BY THE ELEVENTH

AMENDMENT BECAUSE PLAINTIFFS SEEK ONLY INJUNCTIVE

AND DECLARATORY RELIEF FROM STATE OFFICIALS ACTING

IN THEIR OFFICIAL CAPACITY, CONGRESS VALIDLY ABROGATED

STATES’ SOVEREIGN IMMUNITY FOR THE CLAIMS, AND DEFENDANTS

HAVE WAIVED THEIR SOVEREIGN IMMUNITY BY ACCEPTING

FEDERAL FUNDS.............................................................................................................. 6

A. Plaintiffs May Sue State Officials in their Official Capacity for

Prospective Relief Under the Doctrine of Ex parte Young.......................................... 7

B. Congress Validly Abrogated States’ Eleventh Amendment Immunity

for Claims under Title VI and its Implementing Regulations........................................ 12

C. By Accepting Federal Funds, Defendants Have Consented to the

Requirements of Title VI and its Implementing Regulations........................................ 16

II. PLAINTIFFS’ § 1983 CLAIM TO ENFORCE TITLE VI’S DISPARATE

IMPACT REGULATIONS STATES A CLAIM UPON WHICH RELIEF CAN

BE GRANTED................................................................................................................... 19

A. The Defendant State Officials Are “Persons” Under § 1983...................................... 22

B. The Defendant State Officials Deprived Plaintiffs of Rights

Secured by the Constitution or Laws of the United States......................................... 22

1. Federal Regulations are “Laws” of the United States Within the

Meaning of § 1983...................................................................................... 22

2. The Disparate Impact Regulations of Title VI Create

“Enforceable Rights” Within the Meaning of § 1983...................................... 23

(a) The Test for Determining Whether a Claim Exists Under

§ 1983 is Different from the Test for Determining Whether

a Private Right of Action Exists........................................................ 23

(b) Plaintiffs’ Claim for Relief Under § 1983 to Enforce

Title VI’s Disparate Impact Regulations Meets the

Enforceable Rights Test................................................................... 26

(c) Defendants Have Failed to Rebut the Presumption

of Enforceable Rights....................................................................... 28

III. THE DEFENDANTS ARE SUBJECT TO TITLE VI AND ITS

IMPLEMENTING REGULATIONS BECAUSE THEY FIT WITHIN

THE DEFINITION OF A “PROGRAM OR ACTIVITY” RECEIVING

FEDERAL FINANCIAL ASSISTANCE........................................................................... 30

A. Pursuant to the Civil Rights Restoration Act of 1987, Title VI Applies

Entity-wide if any Part of the Entity Receives Federal Funds..................................... 31

B. Title VI’s Broad Definition of a Covered “Program or Activity” Also

Applies to its Implementing Regulations.................................................................... 36

IV. THE PLAINTIFFS HAVE STANDING TO ASSERT THEIR DISCRIMINATION

CLAIMS UNDER THE CONSTITUTION’S “CASE OR CONTROVERSY”

REQUIREMENT................................................................................................................ 41

A. The Individual Plaintiffs Can Establish that They Have Suffered an

“Injury in Fact” Caused by the Defendants’ Actions.................................................. 42

B. The Organizational Plaintiff Can Establish that its Members Would

Have Standing to Sue in Their Own Right, the Interests it Seeks to

Protect Are Germane to its Purpose, and Neither the Claim Asserted

Nor the Relief Requested Requires the Participation of its Individual

Members in the Lawsuit........................................................................................... 48

CONCLUSION............................................................................................................................. 50

TABLE OF AUTHORITIES

Cases:

Akella v. Michigan Dep’t of State Police, 67 F. Supp. 2d 716 (E.D. Mich. 1999)....................... 8, 9

Alexander v. Choate, 469 U.S. 287 (1985)................................................................................... 37

Alexander v. Sandoval, 121 S. Ct. 1511 (2001)............................................................ 2, 10, 18, 19

Allen v. Wright, 468 U.S. 737 (1984)............................................................................................ 43

ANR Pipeline Co. v. Lafaver, 150 F.3d 1178 (10^th Cir. 1998)......................................................... 9

Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150 (1970)......................... 42

Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985)............................................................. 17

Beasley v. Alabama State Univ., 3 F. Supp. 2d 1304 (M.D. Ala. 1998)........................................ 10

Blessing v. Freestone, 520 U.S. 329 (1997)................................................................. 25, 27, 28, 29

Boatowners and Tenants Ass’n, Inc., v. Port of Seattle, 716 F.2d 669 (9^th Cir. 1983)............ 23, 25

Boudreau v. Ryan, 2001 WL 840583 (N.D. Ill. May 2, 2001)........................................................ 24

Brown v. United States, 151 F.3d 800 (8^th Cir. 1998)..................................................................... 3

Buchanan v. City of Bolivar, 99 F.3d 1352 (6^th Cir. 1996)............................................................ 35

Buckley v. City of Redding, 66 F.3d 188 (9^th Cir. 1995)................................................................ 23

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)............................................................................... 6

Chan v. City of New York, 1 F.3d 96 (2d Cir. 1993)..................................................................... 26

Chauhdry v. Mobil Oil Corp., 186 F.3d 502 (4^th Cir. 1999)............................................................ 4

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)............................. 39

Clark v. California, 123 F.3d 1267 (9^th Cir. 1997), cert. denied,

524 U.S. 937 (1998)..................................................................................................... 16, 18

Cohen v. Brown Univ., 809 F. Supp. 978, 982-83 (D.R.I. 1992), aff’d,

991 F.2d 888 (1^st Cir. 1993)......................................................................................... 33, 40

Conley v. Gibson, 355 U.S. 41 (1957)............................................................................................. 5

Cort v. Ash, 422 U.S. 66 (1975).................................................................................................... 25

Crawford v. Davis, 109 F.3d 1281 (8^th Cir. 1997)................................................................... 15, 16

Cureton v. National Collegiate Athletic Ass’n, 198 F.3d 107 (3d Cir. 1999).......................... 38, 39

Dajour B.v. City of New York, 2001 WL 830674 (S.D.N.Y. July 23, 2001)............................ 24, 28

Davis v. Halpern, 768 F. Supp. 968 (S.D.N.Y. 1991)................................................................... 10

Day v. Wayne County Bd. of Auditors, 749 F.2d 1199 (6^th Cir. 1984).......................................... 21

Doe v. Board of Trustees of Univ. of Ill., 138 F.3d 653 (7^th Cir. 1998), vacated,

526 U.S. 1142 (1999), reinstated in pertinent part, 200 F.3d 499 (7^th Cir. 1999)............. 15

Doe v. Wigginton, 21 F.3d 733 (6^th Cir.1994)............................................................................ 8, 12

Edelman v. Jordan, 415 U.S. 651 (1974).......................................................................... 6, 8, 9, 17

EEOC v. Wyoming, 460 U.S. 226 (1983)...................................................................................... 15

Egerdahl v. Hibbing Community College, 72 F.3d 615 (8^th Cir. 1999)......................................... 10

Ex parte Young, 209 U.S. 123 (1908).......................................................................................... 7, 8

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)......................................................................... 12, 13, 14

Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945)................................................. 8

Franks v. Kentucky Sch. for the Deaf, 142 F.3d 360 (6^th Cir. 1998)....................................... 11, 15

Futernick v. Sumpter Township, 78 F.3d 1051, 1055 (6^th Cir.), cert. denied,

519 U.S. 928 (1996)....................................................................................................... 8, 12

Gladstone Realtors v. Village of Bellwood, 441 U.S. 91 (1949).................................................... 42

Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103 (1989)..................................... 29

Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030 (7^th Cir. 1987).............................................. 10

Grove City College v. Bell, 465 U.S. 555 (1984).......................................................................... 31

Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582 (1983)..................................................... 37

Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993).............................................................. 5

Helms v. McDaniel, 657 F.2d 800 (5^th Cir. 1981), cert. denied, 455 U.S. 946 (1982)................... 10

Horner v. Kentucky High Sch. Athletic Ass’n, 43 F.3d 265 (6^th Cir. 1994)............................. 33, 40

Horner v. Kentucky High Sch. Athletic Ass’n, 206 F.3d 685 (6^th Cir. 2000)................................. 40

Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333 (1977)...................................... 49

Huntington Branch N.A.A.C.P. v. Town of Huntington, 689 F.2d 391 (2d Cir. 1982)................. 44

Village of Arlington Heights v. Metropolitan Housing Development Corp.,

429 U.S. 252 (1977)........................................................................................................... 44

Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261 (1997)................................................... 7, 11

Jim C. v. United States, 235 F.3d 1079 (8^th Cir. 2000) (en banc), cert. denied,

121 S. Ct. 2591 (2001)....................................................................................................... 18

Keaukaha-Panaewa Comm. Ass’n v. Hawaiian Homes Comm’n, 739 F.2d 1467

(9^th Cir. 1984)..................................................................................................................... 26

King v. Town of Hempstead, 161 F.3d 112 (2d Cir. 1998)............................................................ 23

Kovacevich v. Kent State Univ., 224 F.3d 806 (6^th Cir. 2000)........................................................ 7

Lesage v. Texas, 158 F.3d 213 (5^th Cir. 1998), rev’d on other grounds,

528 U.S. 18 (1999)....................................................................................................... 14, 15

Litman v. George Mason Univ., 186 F.3d 544 (4^th Cir. 1999)................................................ 18, 19

Livadas v. Bradshaw, 512 U.S. 107 (1994)................................................................................... 25

Loschiavo v. City of Dearborn, 33 F.3d 548 (6^th Cir. 1994), cert. denied,

513 U.S. 1150 (1995)............................................................................................. 22, 25, 27

Lussier v. Dugger, 904 F.2d 661 (11^th Cir. 1990).......................................................................... 10

MacDonald v. Village of Northport, Michigan, 164 F.3d 964 (6^th Cir. 1999)................................. 9

Maine v. Thiboutot, 448 U.S. 1 (1980).............................................................................. 12, 22, 26

Mallett v. Wisconsin Div. of Vocational Rehab., 130 F.3d 1245 (7^th Cir. 1997)............................ 26

Martin v. Voinovich, 840 F. Supp. 1175 (S.D. Ohio 1993)............................................................ 27

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)....................................... 6

McKay v. Thompson, 226 F.3d 752 (6^th Cir. 2000), cert. denied,

121 S. Ct. 1230 (2001)....................................................................................................... 12

Middlesex County Sewage Authority v.

National Sea Clammers Ass’n, 453 U.S. 1 (1981)................................................. 24, 25, 29

Milliken v. Bradley, 433 U.S. 267 (1977)...................................................................................... 11

Musson Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244 (6^th Cir 1996),

amended on denial of reh’g on other grounds,

1998 WL 1179860 (6^th Cir. Jan. 15, 1998)....................................................................... 4, 5

National Rifle Ass’n of America v. Magaw, 132 F.3d 272 (6^th Cir. 1997)....................................... 3

Neighborhood Action Coalition v. City of Canton, Ohio, 882 F.2d 1012 (6^th Cir. 1989)............. 29

Nelson v. Miller, 170 F.3d 641 (6^th Cir. 1999)....................................................................... 8, 9, 10

Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320 (6^th Cir. 1990)...................................... 4, 5

Oklahoma Nursing Home Ass’n v. Demps, 792 F. Supp. 721 (W.D. Okla. 1992)......................... 24

Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981)............................................ 16, 17

Powell v. Ridge, 189 F.3d 387 (3d Cir.), cert. denied, 528 U.S. 1046 (1999)............................... 22

Radcliff v. Landau, 883 F.2d 1481 (9^th Cir. 1989)......................................................................... 33

Reetz v. United States, 224 F.3d 794 (6^th Cir. 2000)....................................................................... 3

RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125 (6^th Cir. 1996)............................... 4

Rosado v. Wyman, 397 U.S. 397 (1970)........................................................................................ 12

Samuels v. District of Columbia, 770 F.2d 184 (D.C. Cir. 1985).................................................. 25

Sandoval v. Hagan, 197 F.3d 484 (11^th Cir. 1999), rev’d on other grounds sub nom.,

Alexander v. Sandoval, 121 S. Ct. 1511 (2001).................................................... 10, 18, 19

Scheuer v. Rhodes, 416 U.S. 232 (1974)................................................................................... 5, 34

Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996)........................................................ 7, 13

Sharif v. New York State Educ. Dep’t, 709 F. Supp. 345 (S.D.N.Y 1989).................. 10, 43, 44, 48

Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976) 42

Smith v. Robinson, 468 U.S. 992 (1984).................................................................................. 28, 29

South Camden Citizens in Action v. New Jersey Dep’t of Env. Protection,

145 F. Supp. 2d 505 (D.N.J. 2001) ............................................................................ passim

Stanley v. Litscher, 213 F.3d 340 (7^th Cir. 2000) .................................................................... 18, 19

Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998)............................................... 3

Thomlison v. City of Omaha, 63 F.3d 786 (8^th Cir. 1995)............................................................. 33

Timmer v. Michigan Dep’t of Commerce, 104 F.3d 833 (6^th Cir. 1997)................................. 13, 15

Trimble v. Asarco, Inc., 232 F.3d 946 (8^th Cir. 2000)...................................................................... 3

University of California Regents v. Bakke, 438 U.S. 265 (1978)............................................ 42, 43

Usery v. Charleston County Sch. Dist., 558 F.2d 1169 (4^th Cir. 1977)......................................... 15

Vermett v. Hough, 606 F. Supp. 732 (W.D. Mich. 1984).............................................................. 12

Warth v. Seldin, 422 U.S. 490 (1975)...................................................................................... 49, 50

West Zion Highlands v. City of Zion, 549 F. Supp. 673 (N.D. Ill. 1982)....................................... 35

Westside Mothers v. Haveman, 133 F. Supp. 2d 549 (E.D. Mich. 2001)................................. 12, 24

White v. Lee, 227 F.3d 1214 (9^th Cir. 2000)..................................................................................... 3

Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498 (1990).................................................. 12, 23, 25, 29

Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989)...................................................... 8, 22

Wood v. Tompkins, 33 F.3d 600 (6^th Cir. 1994)........................................................... 24, 25, 27, 29

Woods v. Cloyd W. Miller Co., 333 U.S. 138 (1948)..................................................................... 15

Wright v. City of Roanoke Redev. & Hous. Auth., 479 U.S. 418 (1987)........................... 12, 22, 29

Statutes, Rules, and Regulations:

20 U.S.C. § 1681....................................................................................................................... 6, 31

20 U.S.C. §§ 7101 et seq............................................................................................................... 34

20 U.S.C. § 7114........................................................................................................................... 34

29 U.S.C. § 794............................................................................................................................. 31

34 C.F.R. § 100.3........................................................................................................................... 27

34 C.F.R. §§ 100 et seq................................................................................................................. 38

42 U.S.C. § 1983.................................................................................................................... passim

42 U.S.C. § 6102........................................................................................................................... 31

42 U.S.C. § 2000d-7............................................................................................................... passim

42 U.S.C. § 2000d-4a........................................................................................................ 32, 35, 38

65 Fed. Reg. 68050........................................................................................................................ 38

134 Cong. Rec. 229 (1988)............................................................................................................ 38

Civil Rights Act of 1984: Hearings on S. 2568 Before the

Subcomm. on the Const. of the Senate Comm. on the Judiciary,

98^th Cong., 2d Sess. 527 (1984)......................................................................................... 38

Fed. R. Civ. P. 12(b)................................................................................................................. 3, 4, 5

Fed. R. Civ. P. 56......................................................................................................................... 4, 5

H.R. Rep. No. 829, Pt. 1, 98^th Cong., 2d Sess., 23-24 (1984)........................................................ 37

Mich. Comp. Laws Ann. § 390....................................................................................................... 34

Pub. L. No. 100-259, 102 Stat. 28 (1988)................................................................................ 31, 36

Restoration Act Clarifies Meaning of “Program or Activity,”

9 Civil Rights Forum No.1, at 3 (Spring 1995)..................................................................... 39

S. Rep. No. 100-64 (1988), reprinted in 1988 U.S.C.C.A.N................................................... 31, 37

Testimony of William J. Bennett, Secretary of DOE, Civil Rights Restoration Act of 1987:

Hearings on S. 557 Before the Senate Comm. on Labor & Human Resources,

100^th Cong., 1^st Sess. 329-30 (1987) Equal Protection Clause of the Fourteenth.................. 37

U.S. Const. Amendment XI............................................................................................................... 6

Miscellaneous:

L. Tribe, American Constitutional Law §§ 3-27, p. 190, n.3 (2d ed. 1988)......................................... 8

Moore’s Federal Practice § 123.22[1][a] (3d ed. 1977).................................................................. 11

PLAINTIFFS’ CONCISE STATEMENT OF QUESTIONS PRESENTED

I.

Are Plaintiffs’ discrimination claims barred by the Eleventh Amendment where Plaintiffs seek only injunctive and declaratory relief from state officials acting in their official capacity, Congress validly abrogated states’ sovereign immunity for the claims, and Defendants have waived their sovereign immunity by accepting federal funds?

II.

Does Plaintiffs’ § 1983 claim to enforce Title VI’s disparate impact regulations state a claim upon which relief can be granted, where Defendant state officials have been sued in their official capacity for only injunctive and declaratory relief, and Defendant state officials have deprived the Plaintiffs of rights secured by the Constitution or laws of the United States?

III.

Are Defendants subject to Title VI and its implementing regulations as “programs or activities” receiving federal financial assistance where, pursuant to the Civil Rights Restoration Act of 1987, an entire entity is covered if any part receives federal funds?

IV.

Do Plaintiffs have standing to assert their discrimination claims under the Constitution’s “case or controversy” requirement where (a) the individual Plaintiffs can establish that they have suffered an “injury in fact” that is traceable to the Defendants’ actions and (b) the organizational Plaintiff can establish that its members would have standing to sue in their own right, the interests it seeks to protect are germane to its purpose, and neither the claim asserted nor the relief requested requires the participation of its individual members in the lawsuit?

CONTROLLING AUTHORITIES

On the issue of whether the Plaintiffs’ claims are barred by the Eleventh Amendment, the Plaintiffs rely principally on Ex parte Young, 209 U.S. 123, 158-59 (1908); Jim C. v. United States, 235 F.3d 1079 (8^th Cir. 2000) (en banc), cert. denied, 121 S. Ct. 2591 (2001); Litman v. George Mason Univ., 186 F.3d 544 (4^th Cir. 1999), cert. denied, 120 S. Ct. 1220 (2000); and Franks v. Kentucky Sch. for the Deaf, 142 F.3d 360 (6^th Cir. 1998).

On the issue of whether the Plaintiffs can assert a § 1983 claim to enforce Title VI’s disparate impact regulations, the Plaintiffs rely principally on Loschiavo v. City of Dearborn, 33 F.3d 548 (6^th Cir. 1994), cert. denied, 513 U.S. 1150 (1995); Wood v. Tompkins, 33 F.3d 600 (6^th Cir. 1994); Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989); Wright v. City of Roanoke Redev. & Hous. Auth., 479 U.S. 418 (1987); Middlesex County Sewage Authority v. National Sea Clammers Ass’n, 453 U.S. 1 (1981); and South Camden Citizens in Action v. New Jersey Dep’t of Env. Protection, 145 F. Supp. 2d 505 (D.N.J. 2001).

On the issue of whether Defendant state agencies are “programs or activities” subject to Title VI and its implementing regulations in regard to the Michigan Merit Scholarship Award Program, the Plaintiffs rely principally on the Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, 102 Stat. 28 (1988); Horner v. Kentucky High Sch. Athletic Ass’n, 43 F.3d 265 (6^th Cir. 1994); Radcliff v. Landau, 883 F.2d 1481, clarified, 892 F.2d 51 (9^th Cir. 1989); and Cohen v. Brown Univ., 809 F. Supp. 978 (D.R.I. 1992), aff’d, 991 F.2d 888 (1^st Cir. 1993).

On the issue of whether the Plaintiffs have standing to bring this action, the Plaintiffs rely principally on Sharif v. New York State Educ. Dep’t, 709 F. Supp 345 (S.D.N.Y. 1989); and Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333 (1977).

INTRODUCTION

Plaintiffs assert in their Second Amended Complaint and Motion for Preliminary Injunction that Defendants are discriminating against them by using the Michigan Educational Assessment Program High School Test (“MEAP-HST”) – a test that has never been validated as a measure of high school achievement or as a basis for awarding college scholarships – as the sole criterion for awarding college scholarships. Plaintiffs contend that the imposition of the MEAP-HST as the basis for awarding state-funded college scholarships violates their rights under Title VI of the Civil Rights Act of 1964 (“Title VI”) and its implementing regulations, the Equal Protection Clause of the Fourteenth Amendment, and 42 U.S.C. § 1983. Plaintiffs seek declaratory and injunctive relief requiring that the scholarships be awarded on a non-discriminatory basis and that a more appropriate, alternative means be used as a basis for making scholarship awards.

Defendants’ Motion to Dismiss challenges Plaintiffs’ discrimination claims on several grounds. Specifically, Defendants assert that: (1) the Eleventh Amendment bars Plaintiffs’ discrimination claims; (2) Plaintiffs cannot state a claim for relief under 42 U.S.C. § 1983; (3) Plaintiffs cannot state a claim for relief under Title VI and its implementing regulations because Defendants do not use federal funds in the scholarship program at issue; and (4) Plaintiffs lack standing to assert their discrimination claims.

Defendants’ most recent Motion to Dismiss is supposed to address the allegations in Plaintiffs’ Second Amended Complaint, but the Motion is largely identical to the one that Defendants filed in response to Plaintiffs’ original Complaint, and fails to address the principal change made in the Second Amended Complaint – namely, the voluntary withdrawal of Plaintiffs’ claim for disparate impact discrimination asserted directly under Title VI’s implementing regulations, and Plaintiffs’ assertion of a claim to enforce those regulations under 42 U.S.C. § 1983 instead. Although Plaintiffs asserted a § 1983 claim in their First Amended Complaint, that was not the sole basis for their disparate impact claim. Now it is, given the Supreme Court’s decision in Alexander v. Sandoval, 121 S. Ct. 1511, 1523 (2001), which held that there is no private right of action to enforce Title VI’s disparate impact regulations directly.^[1]

Although Defendants’ Motion to Dismiss challenges the jurisdictional basis for Plaintiffs’ intentional discrimination claims under the Equal Protection Clause of the Fourteenth Amendment and Title VI, it does not challenge the substantive basis for those claims.^[2] As a result, Plaintiffs have limited their Opposition on these issues to the jurisdictional challenge.

As explained below, each of Defendants’ grounds for challenging Plaintiffs’ discrimination claims is without merit. As a result, this Court should deny Defendants’ Motion to Dismiss in its entirety.

STATEMENT OF FACTS

Plaintiffs have filed a comprehensive statement of facts as part of their Brief in Support of their Motion for Preliminary Injunction. Plaintiffs incorporate by reference that portion of their Preliminary Injunction Motion into this Brief. To assist the Court, that statement of facts is attached to this Brief as Exhibit 1.

STANDARD OF REVIEW

Defendants frame their challenge to Plaintiffs’ discrimination claims as a motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). See Defendants’ Motion to Dismiss at 2; see also Defs.’ Br. at 4, 14. Insofar as Defendants raise issues of sovereign immunity and standing, a 12(b)(1) motion is appropriate. See, e.g., Reetz v. United States, 224 F.3d 794, 795 (6^th Cir. 2000) (sovereign immunity raises jurisdictional issue); Brown v. United States, 151 F.3d 800, 803-04 (8^th Cir. 1998) (sovereign immunity is jurisdictional doctrine properly addressed under Rule 12(b)(1)); White v. Lee, 227 F.3d 1214, 1242 (9^th Cir. 2000) (standing pertains to subject matter jurisdiction under Rule 12(b)(1)); National Rifle Ass’n of America v. Magaw, 132 F.3d 272, 279 (6^th Cir. 1997) (standing pertains to court’s subject matter jurisdiction).

However, to the extent that Defendants’ Motion to Dismiss raises issues of whether (a) they are subject to Title VI and its implementing regulations as programs or activities that receive federal funds, and (b) Plaintiffs may assert claims under 42 U.S.C. § 1983, Rule 12(b)(1) is inapplicable. This is because such issues are appropriately considered under Fed. R. Civ. P. 12(b)(6), which addresses dismissals for failure to state a claim upon which relief can be granted. See, e.g., Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 (1998) (noting that it is firmly established that the absence of a valid cause of action does not implicate subject matter jurisdiction); Trimble v. Asarco, Inc., 232 F.3d 946, 952-53 (8^th Cir. 2000) (district court should have analyzed motion to dismiss under Rule 12(b)(6), not Rule 12(b)(1), because claim did not appear to be immaterial and made solely for purpose of obtaining jurisdiction, nor was it wholly insubstantial and frivolous); Chauhdry v. Mobil Oil Corp., 186 F.3d 502, 504-05 (4^th Cir. 1999) (if court concludes that federal statute provides no relief, then it properly dismisses for failure to state a claim under Rule 12(b)(6), not for lack of subject matter jurisdiction under 12(b)(1)).

In addition, because Defendants rely on evidence outside the pleadings when addressing the federal funding issue under Title VI, their Motion to Dismiss should be treated as a motion for summary judgment under Fed. R. Civ. P. 56(c). As set forth in Fed. R. Civ. P. 12(b):

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56 . . .

The appropriate standard to employ when reviewing a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction turns on the nature of the motion. If the 12(b)(1) motion attacks the plaintiff’s complaint on its face (i.e., the legal sufficiency of the complaint), the court is required to consider the allegations of the complaint as true. E.g., RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6^th Cir. 1996); Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6^th Cir. 1990). When responding to a facial attack on subject matter jurisdiction (such as Defendants’ attack on the issue of sovereign immunity), the plaintiff’s burden is not onerous; the plaintiff can survive the motion by showing any arguable basis in law for the claim made. Musson Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244, 1248 (6^th Cir 1996), amended on denial of reh’g on other grounds, 1998 WL 1179860 (6^th Cir. Jan. 15, 1998). On the other hand, when a court reviews a motion to dismiss that challenges the factual basis of subject matter jurisdiction (such as Defendants’ challenge to Plaintiffs’ standing), the court must weigh the conflicting evidence to determine whether subject matter jurisdiction exists, and no presumptive truthfulness attaches to the plaintiff’s allegations. Ohio Nat’l Life Ins. Co., 922 F.2d at 325; Musson Theatrical, 89 F.3d at 1248.

The standard for dismissal under Rule 12(b)(6) is a stringent one. “[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Hartford Fire Ins. Co. v. California, 509 U.S. 764, 811 (1993) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). For purpose of Rule 12(b)(6), the complaint must be construed in the light most favorable to the nonmoving party and its allegations taken as true. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). This is the standard under which the Court should consider Defendants’ Motion to Dismiss on the issue of the viability of Plaintiffs’ § 1983 claims.

As stated above, although Defendants’ characterize their challenge to Plaintiffs’ Title VI claim as a motion to dismiss (based on their interpretation of Title VI’s federal funding requirement), it is really a motion for summary judgment under Rule 56(c) because Defendants rely on evidence outside the pleadings to support their position that they are not covered by Title VI. Under Fed. R. Civ. P. 56(c), summary judgment should not be entered unless “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” The court must view the motion in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

ARGUMENT

I. PLAINTIFFS’ CLAIMS ARE NOT BARRED BY THE ELEVENTH AMENDMENT BECAUSE PLAINTIFFS SEEK ONLY INJUNCTIVE AND DECLARATORY RELIEF FROM STATE OFFICIALS ACTING IN THEIR OFFICIAL CAPACITY, CONGRESS VALIDLY ABROGATED STATES’ SOVEREIGN IMMUNITY FOR THE CLAIMS, AND DEFENDANTS HAVE WAIVED THEIR SOVEREIGN IMMUNITY BY ACCEPTING FEDERAL FUNDS.

Defendants’ contention that Plaintiffs’ claims are barred by Eleventh Amendment immunity must be rejected for three separate reasons. First, the Eleventh Amendment does not preclude private citizens from suing state officials in their official capacity for prospective relief, whether under Title VI, the Equal Protection Clause of the Fourteenth Amendment, or 42 U.S.C. § 1983. Second, Congress validly abrogated states’ Eleventh Amendment immunity for claims under Title VI and its implementing regulations. Third, by accepting federal funds, Defendants have waived any claim of immunity from suit under Title VI.

The Supreme Court has interpreted the Eleventh Amendment^[3] to mean that, as a general rule, “an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.” Edelman v. Jordan, 415 U.S. 651, 663 (1974). However, there are three well-established separate exceptions to a state’s sovereign immunity under the Eleventh Amendment. Kovacevich v. Kent State Univ., 224 F.3d 806, 817 (6^th Cir. 2000).

The first exception to government immunity is that individuals may sue a state when the state consents to or waives its sovereign immunity. Id. Second, the Eleventh Amendment does not bar a suit against a state official seeking prospective injunctive relief to end a continuing violation of federal law. Id. Third, individuals may sue a state when Congress, pursuant to a valid exercise of power, clearly abrogates a state’s immunity. Id.

In their Brief, Defendants, relying on Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), focus solely on the third exception to Eleventh Amendment immunity: Congress’ ability to unilaterally abrogate a state’s immunity through the valid exercise of power. However, in doing so, they conveniently avoid the first and second exceptions to Eleventh Amendment immunity – both of which apply to this case. Moreover, the third exception also applies to this case because, contrary to Defendants’ contention, Congress properly abrogated states’ Eleventh Amendment immunity from Title VI claims.

A. Plaintiffs May Sue State Officials in their Official Capacity for Prospective Relief Under the Doctrine of Ex parte Young.

The Supreme Court clearly established in Ex parte Young, 209 U.S. 123, 158-59 (1908), that the Eleventh Amendment does not bar suits for injunctive or prospective relief against state officials sued in their official capacity. The Court recently reaffirmed the doctrine of Ex parte Young in Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 281 (1997), stating that “[a]n allegation of an on-going violation of federal law where the requested relief is prospective is ordinarily sufficient to invoke the Young fiction.” Nonetheless, Defendants try to evade the application of the Ex parte Young doctrine by arguing that “[n]otwithstanding” the fact that Plaintiffs sued state officials, “plaintiffs’ complaint is brought against the State of Michigan.” Defs.’ Br. at 14.^[4] This same argument was recently raised and properly rejected by this Court in Akella v. Michigan Dep’t of State Police, 67 F. Supp. 2d 716, 722 (E.D. Mich. 1999) (Duggan, J.):

Plaintiffs have elected to bring suit against defendant Robinson in his official capacity as state police colonel seeking declaratory and injunctive relief. Thus, the question presented is whether defendant Robinson can be cloaked with the State of Michigan’s Eleventh Amendment sovereign immunity in this instance. While it is clear that it is the constitutionality of Mich. Comp. Laws § 28.721 et. seq., and not defendant Robinson’s enforcement of that statute, that is at the heart of the litigation, and thus it is the State of Michigan, and not defendant Robinson, who is the real party in interest, the Court concludes that Ex parte Young, supra, permits plaintiffs’ challenge.

A suit against a state official is barred when the action in essence seeks to recover money from the state because “ ‘the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity.’ ” Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (quoting Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945)). “ ‘Whether a suit against State officials in their official capacity is deemed to be against the State depends on whether the plaintiff seeks “retroactive” or “prospective relief.” ’ ” Nelson v. Miller, 170 F.3d 641, 646 (6^th Cir. 1999) (quoting Doe v. Wigginton, 21 F.3d 733, 736 (6^th Cir.1994)). The Amendment bars suits that “impose a liability which must be paid from public funds in the state treasury.” Edelman, 415 U.S. at 663, 94 S.Ct. at 1356. However, “under the doctrine announced in the landmark case of Ex parte Young, a state official sued in his official capacity for prospective equitable relief ‘is generally not regarded as “the state” for purposes of the Eleventh Amendment and the case may proceed in federal court.’ ” MacDonald v. Village of Northport, Michigan, 164 F.3d 964, 970 (6^th Cir. 1999) (quoting ANR Pipeline Co. v. Lafaver, 150 F.3d 1178, 1188 (10^th Cir. 1998)). Plaintiffs’ complaint seeks declaratory and injunctive relief against defendant Robinson in his official capacity. Thus, plaintiffs’ prosecution of the suit is sanctioned under the doctrine espoused by the Supreme Court in Ex parte Young, supra.

Moreover, the Sixth Circuit recently rejected a similar challenge to the application of the Ex parte Young doctrine in a case challenging a Michigan voting law. As here, the suit’s focus was on the validity of the law itself, “not [on] the [official’s] enforcement of that statute”; yet the court agreed that Ex parte Young justified consideration of the plaintiffs’ claims for prospective injunctive relief, even though the state was the real party in interest. Nelson v. Miller, 170 F.3d 641, 646 (6^th Cir. 1999).

In the present case, as in Nelson and Akella, Plaintiffs have brought suit for injunctive and declaratory relief, not money damages, against state government officials in their official capacities: Governor John Engler, State Treasurer Mark A. Murray, Board of Education President Dorothy Beardmore, and Superintendent of Public Instruction Arthur E. Ellis.^[5] See Plaintiff’s Second Amended Complaint (“SAC”) at ¶¶ 12-13, 15, 17. As in Nelson and Akella, these officials are not shielded with Eleventh Amendment immunity under the doctrine of Ex parte Young. See Nelson, 170 F.3d at 646; Akella, 67 F. Supp. 2d at 722.

Based on Ex parte Young, the Eleventh Amendment does not preclude Plaintiffs’ claims under Title VI, the Fourteenth Amendment, or 42 U.S.C. § 1983. It is well-established that private citizens may assert claims challenging discrimination in state programs under Title VI, the Fourteenth Amendment, and § 1983, notwithstanding the Eleventh Amendment, as long as they seek prospective injunctive relief and sue state officials responsible for the challenged conduct in their official capacity. This is exactly what Plaintiffs have done here with respect to each of their three claims for relief.

Several federal appellate courts, including the Sixth Circuit, have permitted suits for injunctive relief to proceed against state officials pursuant to Ex parte Young under Title VI or analogous civil rights statutes (such as § 504 of the Rehabilitation Act and Title IX of the Higher Education Amendments) that incorporate Title VI remedies. See Sandoval v. Hagan, 197 F.3d 484, 500-01 (11^th Cir. 1999), rev’d on other grounds sub nom., Alexander v. Sandoval, 121 S. Ct. 1511 (2001); accord Davis v. Halpern, 768 F. Supp. 968, 984 (S.D.N.Y. 1991) (applying Ex parte Young doctrine in suit including Title VI claims against, inter alia, state university officials); see also Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1039 (7^th Cir. 1987) (suggesting Ex parte Young doctrine applies to Title VI claim for injunctive and declaratory relief against state superintendent of education); Nelson, 170 F.3d at 646-47 (§ 504 claim); Lussier v. Dugger, 904 F.2d 661, 670 n.10 (11^th Cir. 1990) (same); Helms v. McDaniel, 657 F.2d 800, 806 n.10 (5^th Cir. 1981), cert. denied, 455 U.S. 946 (1982) (same); see Beasley v. Alabama State Univ., 3 F. Supp. 2d 1304, 1307 (M.D. Ala. 1998) (Title IX claim); Sharif v. New York State Educ. Dep’t, 709 F. Supp. 345, 358 (S.D.N.Y 1989) (same); accord Egerdahl v. Hibbing Community College, 72 F.3d 615, 619 n.4 (8^th Cir. 1999) (citing Sharif with approval in Title IX case).

Similarly, it is well-established that, under Ex parte Young, private citizens may assert discrimination claims under the Fourteenth Amendment that seek prospective injunctive relief against state officials sued in their official capacity.^[6] See, e.g., Idaho v. Coeur d’Arlene Tribe of Idaho, 521 U.S. at 279 (Kennedy, J. & Rehnquist, C.J.); id. at 288, 293-94 (O’Connor, Scalia & Thomas, JJ.); id. at 304, n.6 (Souter, Stevens, Ginsburg & Breyer, JJ.) (application of Ex parte Young in school desegregation litigation against State of Michigan in Milliken v. Bradley, 433 U.S. 267 (1977)); Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985). Fourteenth Amendment claims may be maintained against state officials pursuant to 42 U.S.C. § 1983 and Ex parte Young, as the Supreme Court has held that Congress did not intend to abrogate the states’ immunity in § 1983, and because state entities are typically not deemed to have waived their immunity under that statute. See Kentucky v. Graham, 473 U.S. at 169 n.17. Hence, Equal Protection claims against state officials, such as those asserted by Plaintiffs, are properly treated as implicating state action for purposes of the Fourteenth Amendment, but not for purposes of the Eleventh Amendment. See Franks v. Kentucky Sch. for the Deaf, 142 F.3d at 363 n.3 (“Because [the Fourteenth Amendment] was adopted subsequent to the Eleventh Amendment, and its substantive provisions expressly regulate the state action, the Fourteenth Amendment supercedes or limits the Eleventh Amendment to the extent they are inconsistent”) (citing Moore’s Federal Practice § 123.22[1][a] (3d ed. 1977) (footnote omitted)).

Likewise, Plaintiffs’ § 1983 claims fit within the Ex parte Young exception to Eleventh Amendment immunity because they seek only prospective injunctive relief against state officials named in their official capacity. See, e.g., McKay v. Thompson, 226 F.3d 752, 757 (6^th Cir. 2000) (holding that Eleventh Amendment does not bar suit for prospective injunctive relief under § 1983 against state officials acting in official capacity), cert. denied, 121 S. Ct. 1230 (2001); Futernick, 78 F.3d at 1055 (permitting suit for injunctive and declaratory relief against state officials under § 1983); Doe v. Wigginton, 121 F.3d at 737 (same). Accord Vermett v. Hough, 606 F. Supp. 732, 742-43 (W.D. Mich. 1984) (denying motion to dismiss § 1983 claims for injunctive relief against officers of Michigan Department of Police).^[7]

Because each of Plaintiffs’ claims seeks prospective injunctive relief against state officials sued in their official capacities, the Defendant state officials are covered by the Ex parte Young doctrine and cannot cloak themselves in Eleventh Amendment immunity.

B. Congress Validly Abrogated States’ Eleventh Amendment Immunity for Claims under Title VI and its Implementing Regulations.

Section 5 of the Fourteenth Amendment empowers Congress to enact “appropriate legislation” to “enforce” the Equal Protection Clause. Seminole Tribe reaffirmed the holding of Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), that abrogating Eleventh Amendment immunity is within Congress’ Section 5 authority. See Seminole Tribe, 517 U.S. at 59, 71 n.15. Thus, there is no immunity bar to Plaintiffs’ proposed application of 42 U.S.C. § 2000d-7 to permit private suits against states for discriminating on the basis of race and national origin (under Title VI and its regulations), as long as this application is a valid exercise of Section 5.

Defendants err in focusing on Title VI and its implementing regulations, rather than on the abrogation provision itself, § 2000d-7. Their contention that Title VI was enacted solely pursuant to the Spending Clause, U.S. Const., art. 1, § 8, cl. 1, is irrelevant, as well as incorrect. See Defs.’ Br. at 16.

The appropriate question is whether Congress could have enacted § 2000d-7 pursuant to Section 5, not whether the underlying statute was so enacted. Thus, even assuming arguendo that Title VI was enacted solely as Spending Clause legislation, that would not be dispositive as to the constitutional basis of § 2000d-7. In Fitzpatrick, for example, the Supreme Court found that the abrogation of states’ Eleventh Amendment immunity from Title VII suits was a valid exercise of Congress’ Section 5 authority, see 427 U.S. at 456, even though Title VII itself was originally enacted pursuant to the Commerce Clause. Similarly, in Timmer v. Michigan Dep’t of Commerce, 104 F.3d 833, 838 n.7 (6^th Cir. 1997), the Sixth Circuit upheld the abrogation of states’ Eleventh Amendment immunity from Equal Pay Act suits as a valid exercise of Congress’ Section 5 authority, even though the Equal Pay Act was originally enacted pursuant to the Commerce Clause. Thus, the abrogation of states’ Eleventh Amendment immunity from Title VI suits may be upheld as a valid exercise of Congress’ Section 5 authority, even if Title VI itself was originally enacted solely pursuant to the Spending Clause.^[8]

Defendants barely address whether Congress had a valid basis for abrogating states’ Title VI immunity in § 2000d-7. Plaintiffs’ Title VI and Fourteenth Amendment claims are barred by the Eleventh Amendment, Defendants assert, because “Congress had no authority under the Spending Clause to enact 42 U.S.C. 2000d-7” so as to permit such claims. Defs.’ Br. at 16. Defendants’ position clashes with settled legal principles and ample evidence supporting § 2000d-7 as a valid exercise of Congress’ authority to enforce Section 5.

The legislative history of § 2000d-7 makes clear that Congress intended to act pursuant to Section 5. See Lesage v. Texas, 158 F.3d 213, 218-219 (5^th Cir. 1998), rev’d on other grounds, 528 U.S. 18 (1999) (concluding that “Congress unquestionably enacted 42 U.S.C. Section 2000d-7 with the ‘intent’ to invoke the Fourteenth Amendment’s enforcement power,” and setting out in detail legislative materials supporting this finding); accord Fitzpatrick v. Bitzer, 427 U.S. at 453 n.9 (relying on legislative history in determining whether “Congress exercised its power under § 5 of the Fourteenth Amendment”).

Congress need not expressly state its intent to rely upon its Section 5 authority. As the Sixth Circuit has held, § 2000d-7 was a valid abrogation of states’ Eleventh Amendment immunity under Section 5 because Congress “had the authority to adopt the legislation pursuant to that provision.” Franks v. Kentucky Sch. for the Deaf, 142 F.3d at 363. In reaching this conclusion, the Court conducted

an objective inquiry, namely, whether Congress could have enacted the legislation at issue pursuant to a constitutional provision granting it the power to abrogate. As long as Congress had such authority as an objective matter, whether it also had the specific intent to legislate pursuant to that authority is irrelevant.

Id. (quoting Crawford v. Davis, 109 F.3d 1281, 1283 (8^th Cir. 1997)). Instead, it is sufficient that there is a “legislative purpose or factual predicate that supports the exercise” of Congress’ Section 5 power to render Title VI applicable to the states through § 2000d-7. EEOC v. Wyoming, 460 U.S. 226, 243 n.18 (1983). That is, “[t]he constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise.” EEOC v. Wyoming, 460 U.S. at 243-44 (quoting Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144 (1948)); accord Timmer, 142 F.3d at 839 (“Our duty in passing on the constitutionality of legislation is to determine whether Congress had the authority to adopt legislation, not whether it correctly guessed the source of that power”) (quoting Usery v. Charleston County Sch. Dist., 558 F.2d 1169, 1171 (4^th Cir. 1977)).

Congress’ enactment of § 2000d-7 was a valid exercise of Section 5. The purpose of § 2000d-7 – securing effective enforcement against the states of legislative guarantees of non-discrimination – logically “invokes the prohibition of the Equal Protection Clause.” Lesage v. Texas, 158 F.3d at 217.

Not surprisingly, every federal court of appeals considering the constitutional basis of § 2000d-7 since Seminole Tribe has held that it was an appropriate exercise of Congress’ Section 5 authority. See Lesage v. Texas, 158 F.3d at 217-19, rev’d on other grounds, 528 U.S. 18 (1999); Franks v. Kentucky Sch. for the Deaf, 142 F.3d at 363; Doe v. Board of Trustees of Univ. of Ill., 138 F.3d 653, 660 (7^th Cir. 1998), vacated, 526 U.S. 1142 (1999), reinstated in pertinent part, 200 F.3d 499 (7^th Cir. 1999); Crawford v. Davis, 109 F.3d 1281, 1283 (8^th Cir. 1997); Clark v. California, 123 F.3d 1267, 1270 (9^th Cir. 1997), cert. denied, 524 U.S. 937 (1998). This Court should likewise hold that § 2000d-7 is a valid exercise of Congress’ Section 5 authority.

C. By Accepting Federal Funds, Defendants Have Consented to the Requirements of Title VI and its Implementing Regulations.

A third and independent reason that the Eleventh Amendment does not bar this suit is that Defendants consented to be sued in federal court for violations of Title VI and its regulations by accepting federal funds.

Although Defendants do not acknowledge the origins of Title VI as legislation enacted pursuant to Section 5 of the Fourteenth Amendment, they recognize that the “structure” of Title VI reflects its origins as an exercise of the Spending Clause power of Article I, § 8, Cl. 1. See Defs.’ Br. at 16. Yet Defendants ignore the weight of judicial authority confirming Congress’ power under the Spending Clause to prescribe conditions for states that voluntarily accept federal financial assistance. Under laws passed pursuant to Congress’ Spending Clause authority, states are free to accept or reject the terms and conditions of federal funds much like any contractual party. As stated in Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981):

Turning to Congress’ power to legislate pursuant to the spending power, our cases have long recognized that Congress may fix the terms on which it shall disburse federal money to the States. Unlike legislation enacted under § 5, however, legislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions.

Id. at 17 (citations omitted).

The federal government may condition the waiver of state sovereign immunity upon the receipt of federal money. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 n. 1 (1985) (“a State may effectuate a waiver of its constitutional immunity . . . by otherwise waiving its immunity in the context of a particular program”); see also Edelman v. Jordan, 415 U.S. 651, 673 (1974) (noting that a state may effectively consent to abrogation “by its participation in [a] program authorized by Congress” and which Congress intended to abrogate). In order for Congress to impose such a condition, however, it must do so unambiguously. Pennhurst, 451 U.S. at 17.

There is no question that Congress, in enacting Title VI, intended to make waiver of immunity a condition of receiving federal funds. Section 2000d-7 of Title VI explicitly provides that “a State shall not be immune under the Eleventh Amendment . . . from suit in Federal Court for a violation . . . of title VI . . . or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.” 42 U.S.C. § 2000d-7. As they concede in their Brief, “Defendants do not deny that 42 U.S.C. 2000d(7) [sic] constitutes an unequivocal expression of the congressional intent to abrogate the State of Michigan’s sovereign immunity in relation to 42 U.S.C. 2000d’s prohibition of discrimination in the administration of programs receiving federal aid.” Defs.’ Br. at 15.

By accepting federal funds, both the Defendant state agencies and the Defendant state officials in this case accepted the non-discrimination requirements contained in Title VI and its implementing regulations. Eleventh Amendment immunity therefore does not apply to Plaintiffs’ claims under Title VI and its regulations. See Pennhurst, 451 U.S. at 17; Edelman, 415 U.S. at 672.

This precise issue was comprehensively addressed in Sandoval v. Hagan, 197 F.3d 484, 492-500 (11^th Cir. 1999), rev’d on other grounds sub nom., Alexander v. Sandoval, 121 S. Ct. 1511 (2001),^[9] where the Eleventh Circuit held that the State of Alabama waived its sovereign immunity in a lawsuit under Title VI and its implementing regulations by accepting federal funds. Additionally, other circuits have held that states, by accepting federal funds, have waived their Eleventh Amendment immunity in actions brought under other statutes passed pursuant to Congress’ Spending Power. See, e.g., Jim C. v. United States, 235 F.3d 1079, 1081 (8^th Cir. 2000) (en banc), cert. denied, 121 S. Ct. 2591 (2001) (abrogation of states’ Eleventh Amendment immunity from suit under Rehabilitation Act section prohibiting recipient of federal funds from discriminating on basis of disability was proper exercise of Congress’ Spending Power); Stanley v. Litscher, 213 F.3d 340, 344 (7^th Cir. 2000) (no sovereign immunity for Rehabilitation Act claim because Congress passed Rehabilitation Act under Spending Power); Litman v. George Mason Univ., 186 F.3d 544, 553 (4^th Cir. 1999) (Congress permissibly conditioned the state university’s receipt of Title IX funds on unambiguous waiver of university’s Eleventh Amendment immunity); Clark v. California, 123 F.3d 1267, 1271 (7^th Cir. 1997) (Rehabilitation Act includes an express waiver of Eleventh Amendment immunity which California accepted when it accepted Rehabilitation Act funds.)

In short, the Defendants in this case waived their sovereign immunity and consented to a lawsuit under Title VI and its implementing regulations by accepting federal funds.^[10] Accordingly, Defendants are bound to comply with the statute and its regulations and cannot hide behind the shield of the Eleventh Amendment. See Sandoval, 197 F.3d at 492-500; Stanley, 213 F.3d at 344; Litman, 186 F.3d at 553.

II. PLAINTIFFS’ § 1983 CLAIM TO ENFORCE TITLE VI’S DISPARATE IMPACT REGULATIONS STATES A CLAIM UPON WHICH RELIEF CAN BE GRANTED.

The Supreme Court’s recent decision in Alexander v. Sandoval established that there is no private right of action under Title VI’s disparate impact regulations. 121 S. Ct. at 1523. In light of that decision, Plaintiffs voluntarily withdrew their claim under Title VI’s disparate impact regulations. Instead, Plaintiffs’ Second Amended Complaint asserts a claim for disparate impact discrimination pursuant to 42 U.S.C. § 1983;^[11] specifically, Plaintiffs seek to enforce the disparate impact regulations of Title VI through § 1983, rather than directly under the regulations themselves. See SAC at ¶¶ 59-62.^[12] Justice Stevens’ dissent in Sandoval specifically recognized the continued viability of § 1983 claims to enforce the Title VI regulations against state actors, despite the majority’s ruling:

Litigants who in the future wish to enforce the Title VI regulations against state actors in all likelihood must only reference § 1983 to obtain relief; indeed, the plaintiffs in this case (or other similarly situated individuals) presumably retain the option of re-challenging Alabama’s English-only policy in a complaint that invokes § 1983 even after today’s decision.

Sandoval, 121 S. Ct. at 1527 (Stevens, J., dissenting). Accord South Camden Citizens in Action v. New Jersey Dep’t of Env. Protection, 145 F. Supp. 2d 505, 518 (D.N.J. 2001) (holding that Sandoval does not preclude a § 1983 claim for disparate impact discrimination in violation of Title VI’s implementing regulations).^[13]

In their Motion to Dismiss, Defendants fail to articulate the specific nature of their challenge to Plaintiffs’ § 1983 claims or make any arguments in support thereof. Instead, they simply assert that § 1983 is not a source of substantive rights, implying that Plaintiffs’ § 1983 claims are only viable to the same extent as Plaintiffs’ claims that were filed directly under the underlying law – which includes Title VI, its implementing regulations, and the Fourteenth Amendment. See Defs.’ Br. at ii, iii, 13-14.^[14] This argument ignores the distinction between a claim under § 1983 and a claim directly under Title VI’s disparate impact regulations. This distinction is critical to understanding why Plaintiffs may assert a claim to enforce the Title VI regulations under § 1983. Section 1983 provides a cause of action against any person who, acting under color of state law, violates “rights, privileges, or immunities secured by the Constitution and laws” of the United States.^[15] Thus, the two elements of a § 1983 action are that (1) the conduct was committed by a “person” acting under color of state law, and (2) the conduct deprived the complainants of “rights secured by the Constitution or laws of the United States.” Day v. Wayne County Bd. of Auditors, 749 F.2d 1199, 1202 (6^th Cir. 1984).

In their Motion to Dismiss, Defendants fail to offer any analysis of whether Plaintiffs satisfy the two elements of a § 1983 claim and do not even address whether Title VI’s disparate impact regulations are enforceable under § 1983. See Defs.’ Br. at 13-14. As set forth below, Plaintiffs’ attempt to enforce Title VI’s disparate impact regulations under § 1983 satisfies both elements of a § 1983 claim.

1. The Defendant State Officials Are “Persons” Under § 1983.

State officials sued only for injunctive relief are considered “persons” within the meaning of § 1983. See Will v. Michigan Dep’t of State Police, 491 U.S. at 71 n.10 (citing Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985)) (“[A] state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because ‘official-capacity actions for prospective relief are not treated as actions against the state.’”). Plaintiffs’ § 1983 claim clearly satisfies this definition, because it seeks declaratory and injunctive relief against state officials in their official capacity.

2. The Defendant State Officials Deprived Plaintiffs of Rights Secured by the Constitution or Laws of the United States.

Plaintiffs’ § 1983 claim to enforce Title VI’s disparate impact regulations also satisfies the second element of a § 1983 claim because Plaintiffs allege that Defendant state officials’ conduct deprived them of rights secured by laws of the United States. As explained below, the Title VI regulations are “laws” within the meaning of § 1983. In addition, the regulations create “enforceable rights” under § 1983.

1. Federal Regulations are “Laws” of the United States Within the Meaning of § 1983.

Under Sixth Circuit case law, federal regulations are “laws” within the meaning of § 1983, independent of the statute under which they are promulgated.^[16] Loschiavo v. City of Dearborn, 33 F.3d 548, 551 (6^th Cir. 1994) (citing Wright v. City of Roanoke Redev. & Hous. Auth., 479 U.S. at 431), cert. denied, 513 U.S. 1150 (1995); accord Powell v. Ridge, 189 F.3d 387, 399-403 (3d Cir.) (upholding § 1983 claim to enforce Title VI’s disparate impact regulations), cert. denied, 528 U.S. 1046 (1999); see also Buckley v. City of Redding, 66 F.3d 188 (9^th Cir. 1995) (framing issue as whether underlying statute conferred right enforceable under § 1983, but applying analysis to regulations, and finding regulations imposed enforceable, binding obligation on defendant); King v. Town of Hempstead, 161 F.3d 112 (2d Cir. 1998) (assuming regulations can provide independent basis for a § 1983 suit, but without deciding issue). Thus, the disparate impact regulations of Title VI are “laws” under § 1983 and can be enforced under that statute.

2. The Disparate Impact Regulations of Title VI Create “Enforceable Rights” Within the Meaning of § 1983.

(a) The Test for Determining Whether a Claim Exists Under § 1983 is Different from the Test for Determining Whether a Private Right of Action Exists.

Sandoval’s rejection of a private cause of action under Title VI’s disparate impact regulations has no effect on the validity of a § 1983 claim for violations of those regulations. The test for determining whether a claim exists under § 1983 is entirely different from the test for determining whether an implied private right of action exists. See Wilder, 496 U.S. at 508 n.9; Boatowners and Tenants Ass’n, Inc., v. Port of Seattle, 716 F.2d 669, 674 (9^th Cir. 1983) (“[Defendant] argues that a plaintiff who was unable to demonstrate a private right of action under the statute would necessarily be barred from seeking a section 1983 remedy. This analysis ignores the distinctions between the two causes of action.”); Citizens in Action, 145 F. Supp. 2d at 516-18, 520-24 (distinguishing Sandoval’s private right of action analysis of Title VI regulations from the § 1983 analysis before it).

The test to determine whether a right of action exists under § 1983 focuses on whether the law at issue creates “enforceable rights.”^[17] See Middlesex County Sewage Authority v. National Sea Clammers Ass’n, 453 U.S. 1, 19 (1981); Wright, 479 U.S. at 423. The Sixth Circuit applies a three-part test to make the “enforceable rights” determination:

1) The provision must be intended to benefit the plaintiff;

2) The provision must create a binding obligation on the government defendant; and

3) Plaintiff’s asserted interest must be sufficiently specific as to be within the competence of the judiciary to enforce.  

Loschiavo, 33 F.3d at 551 (citing Wilder, 496 U.S. at 504); Wood v. Tompkins, 33 F.3d at 604 (citing same). Once the three-part test is met, a rebuttable presumption arises that the regulations create an enforceable right under § 1983. See Blessing v. Freestone, 520 U.S. 329, 341 (1997).^[18]

This three-part test is distinct from the test for determining whether an implied right of action exists. The latter question, which was at issue in Sandoval, involves four factors, see Cort v. Ash, 422 U.S. 66 (1975), and focuses on whether Congress intended to create an enforceable right under the statute in question. Samuels v. District of Columbia, 770 F.2d 184, 194 (D.C. Cir. 1985); Boatowners, 716 F.2d at 674; Citizens in Action, 145 F. Supp. 2d at 521. By contrast, because Congress clearly intended § 1983 to provide a remedy for violations of federal law, regardless of whether there is a separate right of action to enforce those laws, § 1983 is presumptively available for that purpose. Livadas v. Bradshaw, 512 U.S. 107, 132 (1994). Thus, Plaintiffs need not demonstrate congressional intent to provide access to a remedy under § 1983. See National Sea Clammers Ass’n, 453 U.S. at 20 n.31.

Because the tests for the two causes of action are different, Sandoval does not affect Plaintiffs’ claim under § 1983 to enforce Title VI’s disparate impact regulations. Citizens in Action, 145 F. Supp. 2d at 518. In fact, courts routinely find causes of action under § 1983 where no implied right of action exists to enforce the underlying law. Id. at 520-24 (“The difference between these two lines of judicial inquiry explains why courts may find that a statute which does not contain an implied private right of action nonetheless creates rights which are enforceable through § 1983.”); see Maine v. Thibotout, 448 U.S. 1, 5-6 (1980) (noting that § 1983 can be the exclusive cause of action where a statute “affords no private right of action against a state”); e.g., Mallett v. Wisconsin Div. of Vocational Rehab., 130 F.3d 1245, 1248-57 (7^th Cir. 1997) (holding § 1983 remedy available under Rehabilitation Act, but holding no private right of action under same); Chan v. City of New York, 1 F.3d 96 (2d Cir. 1993) (holding § 1983 remedy available under Housing and Community Development Act, but rejecting private right of action under same statute); Keaukaha-Panaewa Comm. Ass’n v. Hawaiian Homes Comm’n, 739 F.2d 1467, 1470-71 (9^th Cir. 1984) (holding § 1983 action available under statute, but no private right of action under same). Here, Plaintiffs can enforce Title VI’s disparate impact regulations under § 1983 because the regulations meet the required elements of finding a cause of action under § 1983.

(b) Plaintiffs’ Claim for Relief Under § 1983 to Enforce Title VI’s Disparate Impact Regulations Meets the Enforceable Rights Test.

Title VI’s disparate impact regulations meet the three-part test for finding enforceable rights under § 1983. First, the regulations’ provisions benefit Plaintiffs. Plaintiffs are African-American, Hispanic, and Native American individuals who have been adversely affected by the discriminatory action of Defendant state officials. Title VI and its implementing regulations were enacted to protect individuals from discriminatory practices by recipients of federal funds. See Citizens in Action, 145 F. Supp. 2d at 530, 538-39 (holding that disparate impact regulations implementing Title VI meet first prong and stating that “[i]t is axiomatic that Congress’ purpose in enacting the Civil Rights Act of 1964 was to prohibit discrimination against individuals on the basis of race, color, or national origin.”) (citing legislative history). The statute’s anti-discriminatory purpose was clearly intended to benefit Plaintiffs.

Further, Title VI’s disparate impact regulations meet the second prong of the § 1983 test. To show that a provision creates a binding obligation on government defendants, the provision giving rise to the asserted right must be couched in mandatory, rather than precatory terms. See Blessing v. Freestone, 520 U.S. at 341. Title VI’s disparate impact regulations satisfy this requirement. They provide: “No person . . . shall, on the ground of race, color, or national origin . . . be . . . subjected to discrimination . . . .” 34 C.F.R. § 100.3(a) (emphasis added). The regulations further specify that recipients of federal funds “may not” engage in the enumerated discriminatory conduct. 34 C.F.R. § 100.3(b)(1)-(3). This mandatory language creates a binding obligation on recipients of federal funds. Citizens in Action, 145 F. Supp. 2d at 536-37, 541-42 (holding mandatory language of disparate impact regulations implementing Title VI, which use term “shall,” meet second prong); see Loschiavo, 33 F.3d at 552 (holding that mandatory language of regulations at issue meets second prong of § 1983 test); Tompkins, 33 F.3d at 608 (finding statute mandatory for purposes of enforceable rights test, where statute requires that states “must” comply with mandatory duties); Martin v. Voinovich, 840 F. Supp. 1175, 1196, 1200 (S.D. Ohio 1993) (holding regulations implementing Social Security Act binding, due to regulations’ use of word “must”).

Finally, the disparate impact regulations meet the third prong of the enforceable rights test. In analyzing whether a plaintiff’s asserted interest is sufficiently specific to be judicially enforceable, the Sixth Circuit has considered whether regulations are “readily susceptible of judicial evaluation.” Loschiavo, 33 F.3d at 552-53. The anti-discrimination language in Title VI’s disparate impact regulations meets this standard because well-developed precedent already exists interpreting Title VI and similar civil rights statutes. “The Court need not speculate about judicial competence to enforce [Title VI’s disparate impact regulations] . . . , because a substantial body of case law exists which demonstrates the capacity of the federal judiciary to perform exactly this analysis.” Citizens in Action, 145 F. Supp. 2d at 533-35, 540-41 (listing cases demonstrating disparate impact analysis and standards, and holding that disparate impact regulations meet this prong of enforceable rights test). These cases demonstrate that the regulations are readily susceptible of judicial evaluation, and provide interpretive assistance to the Court in enforcing them. See id.; see also Dajour B. v. City of New York, 2001 WL 830674, at *10 (S.D.N.Y. July 23, 2001) (stating that “well-reasoned decisions of numerous other courts” that allowed § 1983 suits to enforce a statute proved sufficient specificity of the statute’s provisions).

Thus, Title VI’s disparate impact regulations meet all three prongs of the enforceable rights test. The Court should therefore permit Plaintiffs to proceed with their § 1983 claim to enforce the Title VI regulations.

(c) Defendants Have Failed to Rebut the Presumption of Enforceable Rights.

Defendants have the burden of rebutting the presumption that the Title VI regulations establish enforceable rights by proving that Congress intended to foreclose a remedy under § 1983. Tompkins, 33 F.3d at 604. Defendants have not met this burden. In fact, they have failed to present any argument whatsoever regarding foreclosure. Regardless, Defendants could not carry this burden because Congress did not intend to foreclose a § 1983 remedy for violations of the Title VI regulations.

Congress may foreclose a remedy under § 1983 expressly or impliedly, by creating a comprehensive enforcement scheme that is incompatible with § 1983 claims. See Blessing, 520 U.S. at 341 (citing Smith v. Robinson, 468 U.S. 992, 1005 n.9 (1984)). The standard for such a finding is high: “We do not lightly conclude that Congress intended to preclude reliance on § 1983 as a remedy for the deprivation of a federally secured right.” Tompkins, 33 F.3d at 605 (citing Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 106 (1989)). In fact, the Supreme Court has found a remedial scheme sufficiently comprehensive to supplant § 1983 only twice. Blessing, 520 U.S. at 347 (citing National Sea Clammers, 453 U.S. 1; Smith, 468 U.S. 992).

In analyzing this issue, the Supreme Court has established that an agency’s authority to audit or cut off federal funding is insufficient to find an intent to foreclose § 1983 remedies. Blessing, 520 U.S. at 347-48; Wilder, 496 U.S. 498, 521 (1990); Wright, 479 U.S. at 428. Thus, Title VI’s provision allowing agencies to terminate federal funding is insufficient to establish Congress’ intent to foreclose actions under § 1983. Citizens in Action, 145 F. Supp. 2d at 542-46 (holding enforcement scheme of Title VI and implementing regulations insufficiently elaborate to prove intent to foreclose § 1983 action). Further, although the regulations provide for an administrative complaint process, see 34 C.F.R. §§ 100.7 - 100.11, remedies under § 1983 are not foreclosed merely because administrative mechanisms are available. See Citizens in Action, 145 F. Supp. 2d at 545 (holding establishment of administrative mechanism for review of complaints does not contain provisions demonstrating intent to foreclose § 1983 actions).

Moreover, the Sixth Circuit has established that “Title VI does not provide a mechanism by which the class protected by the statute can actively participate in the administrative process. . . . [A]n administrative finding of a Title VI violation may not include relief for the claimant.” Neighborhood Action Coalition v. City of Canton, Ohio, 882 F.2d 1012 (6^th Cir. 1989). Thus, the Title VI regulations do not establish the kind of enforcement mechanisms that the Supreme Court has, in rare circumstances, found sufficient to foreclose a remedy under § 1983. See Citizens in Action, 145 F. Supp. 2d at 545 (holding that disparate impact regulations do not establish elaborate enforcement mechanism to defeat § 1983 claim). Because Defendants have failed to articulate any argument regarding this issue, they have failed to rebut the presumption that the Title VI regulations establish enforceable rights.

In sum, this Court should allow Plaintiffs to proceed with their § 1983 claim to enforce Title VI’s disparate impact regulations because their claim satisfies the requisite elements. First, Defendant state officials are “persons” within the meaning of § 1983. Second, the regulations, which are independently enforceable under Sixth Circuit law, meet all three elements of the enforceable rights test. Defendants have produced nothing to rebut this conclusion. Thus, the Court should deny Defendants’ Motion to Dismiss Plaintiffs’ § 1983 claim.

III. THE DEFENDANTS ARE SUBJECT TO TITLE VI AND ITS IMPLEMENTING REGULATIONS BECAUSE THEY FIT WITHIN THE DEFINITION OF A “PROGRAM OR ACTIVITY” RECEIVING FEDERAL FINANCIAL ASSISTANCE.

In contesting this Court’s subject matter jurisdiction, Defendants argue that Title VI and its implementing regulations do not reach discrimination in the Michigan Merit Award Scholarship Program (“Scholarship Program” or “Progam”) because the entity that administers the Program does not receive federal funds and the Program itself does not use federal funds. Defs.’ Br. at 18-19. This argument is without merit and is based on an overly narrow reading of Title VI that ignores the statute’s language and legislative history, as well as the relevant case law.

Title VI and its implementing regulations cover all operations of an entity receiving federal financial assistance, not merely the specific program receiving federal funds. Plaintiffs do not dispute that the Scholarship Program is funded solely by revenues from the multi-state settlement agreement with tobacco manufacturers. SAC at ¶ 25. Nor do Plaintiffs contend that the entity administering the Scholarship Program, the Michigan Merit Award Board (“MMAB”), receives federal funds. But these facts do not insulate the Defendants from the reach of Title VI. This is because, among other things, the MMAB is an operation of a program that receives federal financial assistance. SAC at ¶¶ 11, 14, 54. Put another way, the state agencies and officials named as Defendants in this suit are subject to Title VI and its implementing regulations because they administer the Scholarship Program and either receive federal funds or are operations of programs that receive federal funds.

A. Pursuant to the Civil Rights Restoration Act of 1987, Title VI Applies Entity-wide if any Part of the Entity Receives Federal Funds.

Defendants’ argument that Title VI applies only to the specific program receiving federal funds, Defs.’ Br. at 7, is directly refuted by the Civil Rights Restoration Act of 1987 (the “CRRA”), which reaffirmed the broad application of Title VI (and analogous civil rights statutes) to “all of the operations of” an entity, “any part of which is extended Federal financial assistance.” Pub. L. No. 100-259, §§ 3-6, 102 Stat. 28, 28-31 (1988).^[19] Congress enacted the CRRA to overturn the Supreme Court’s decision in Grove City College v. Bell, 465 U.S. 555 (1984).^[20] In Grove City, the Court held that Title IX’s prohibition on sex discrimination applied only to the specific education program receiving federal funds – in that case, the college’s financial aid program – and not to the college as a whole. 465 U.S. at 573-74. The CRRA effectively overruled this narrow interpretation of which programs are covered under the civil rights statutes, such as Title VI, that prohibit discrimination in federally funded programs.

The CRRA expansively defines a covered “program or activity” under Title VI as follows:

For the purposes of this title, the term “program or activity” and the term “program” mean all of the operations of –

(1)(A) a department, agency, special purpose district, or other instrumentality of a State or of a local government; or

(B) the entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;

* * *

any part of which is extended Federal financial assistance.

42 U.S.C. § 2000d-4a(1) (emphasis added). The plain language of the CRRA shows that Defendants’ “program specific” interpretation of Title VI is without merit.^[21]

Based on the conclusion that the CRRA eliminated the “program specific” approach to coverage articulated in Grove City, several federal appeals courts, including the Sixth Circuit, have applied Title VI and analogous civil rights statutes to operations of a “program or activity” receiving federal funds, even though the particular operation received no federal funds. See, e.g., Thomlison v. City of Omaha, 63 F.3d 786, 788-89 (8^th Cir. 1995) (upholding claim under §504 of Rehabilitation Act against municipal government based on allegations of bias by city fire department which did not receive federal funds but was subdivision of department that did); Horner v. Kentucky High Sch. Athletic Ass’n, 43 F.3d 265, 271-72 (6^th Cir. 1994) (Title IX claim against State Board of Education where court stated that, under the CRRA, “discrimination is prohibited throughout entire agencies or institutions if any part receives Federal financial assistance”); Radcliff v. Landau, 883 F.2d 1481, 1483 (9^th Cir. 1989) (noting that “[r]eceipt of federal financial assistance by any student or portion of a school thus subjects the entire school to Title VI coverage”); see also Cohen v. Brown Univ., 809 F. Supp. 978, 982-83 (D.R.I. 1992), aff’d, 991 F.2d 888 (1^st Cir. 1993) (based on Brown University’s receipt of federal funds, court found that university as a whole, including its athletic department which Brown did not admit or deny received funds, was subject to plaintiffs’ claim of sex discrimination in intercollegiate athletics under Title IX and its implementing regulations).

The Defendants in this case, which are the state agencies and officials responsible for administering the Scholarship Program (SAC at ¶ 2),^[22] are clearly covered by Title VI, as amended by the CRRA. Plaintiffs have sued four state agencies: (1) the MMAB; (2) the Michigan Department of Treasury (“Treasury Department”); (3) the State Board of Education; and (4) the State Department of Education.^[23] Under the CRRA’s definition of a “program or activity,” Title VI applies to “all of the operations of” the Treasury Department, the State Board of Education, and the State Department of Education,^[24] which Plaintiffs allege, and Defendants apparently do not dispute,^[25] receive federal funds. See SAC at ¶¶ 11, 14-16.^[26] These operations include the Scholarship Program; as Plaintiffs have alleged, the Treasury Department “has been entrusted with implementation of the [Scholarship Program].” SAC at ¶ 14; see also Mich. Comp. Laws Ann. § 390.1454. The MMAB is also subject to Title VI as an “operation” of a federally funded “program or activity” because it is an entity established within the Treasury Department to administer the Scholarship Program. SAC at ¶11; see also Mich. Comp. Laws Ann. § 390.1454. In addition, the MEAP-HST, which forms the basis for awarding college scholarships under the Scholarship Program, was developed and is administered by the State Department of Education. SAC ¶¶ 28-31, 34, 38. Moreover, the State Board of Education is “charged with carrying out state education policy,” which includes the MEAP-HST that forms the basis of the Scholarship Program. See SAC at ¶ 18.^[27]

Defendants claim that they are not subject to Title VI because the MMAB neither receives federal funds nor uses such funds to operate the Scholarship Program. Defs.’ Br. at 18-19. This argument simply does not comport with the plain language of the CRRA’s amendment to Title VI. Defendants’ confusion apparently stems from its misplaced reliance on Grove City. Citing Grove City, Defendants claim that Title VI is “program specific” and applies only to the particular program that receives federal funds. Defs.’ Br. at 9.^[28] This conclusion, however, is foreclosed by the CRRA, which legislatively overturned Grove City to restore the broad, entity-wide coverage of Title VI and its sister statutes. As a result, this Court should hold that each of the Defendants is subject to Plaintiffs’ Title VI claim.

B. Title VI’s Broad Definition of a Covered “Program or Activity” Also Applies to its Implementing Regulations.

Defendants’ incorrect reading of Title VI taints its interpretation of Title VI’s implementing regulations. Defendants argue that the regulations are program specific based on the faulty premise that the statute is program specific. Defs.’ Br. at 9. Plaintiffs do, however, agree with Defendants’ premise that the regulations must be read consistently with the objectives of the statute. See id. Based on the CRRA, this means that the regulations, like the statute they implement, apply to all of the operations of federally funded entities regardless of whether a particular operation uses federal funds. The plain language of the CRRA and its legislative history confirm this interpretation of the regulations.

The language of the CRRA makes clear that the statute’s broad definition of a covered “program or activity” applies to Title VI’s implementing regulations, including the disparate impact regulations. The CRRA’s stated purpose is “to restore the prior consistent and long-standing executive branch interpretation and broad institution-wide application of those laws as previously administered.” Pub. L. No. 100-259, § 2(2), 102 Stat. at 28 (emphasis added). As the reference to “executive branch interpretation” demonstrates, Congress intended its overturning of Grove City to apply not only to Title VI itself but to the administrative regulations interpreting the statute.

The Senate Report accompanying the CRRA legislation confirms this point. The report explains that Grove City had “reversed years of administrative interpretation and enforcement practice by Republican and Democratic administrations,” dating back to Title VI’s enactment: “Beginning in 1964 with the enactment of Title VI and until the Grove City decision in 1984, the Federal officials charged with enforcing these civil rights statutes interpreted them to be institution-wide in their coverage.” S. Rep. No. 100-64, at 3, 7 (1988), reprinted in 1988 U.S.C.C.A.N. at 5, 9. For example, numerous officials from the federal agencies testified during the hearings on the CRRA that they had applied their Title VI regulations on an institution-wide basis before Grove City. See S. Rep. No. 100-64, at 7-10 (summarizing testimony of agencies and concluding that “the evidence is overwhelming that the institution wide coverage that Congress intended was understood and implemented by previous administrations”). See also Testimony of William J. Bennett, Secretary of DOE, Civil Rights Restoration Act of 1987: Hearings on S. 557 Before the Senate Comm. on Labor & Human Resources, 100^th Cong., 1^st Sess. 329-30 (1987) (DOE “investigated all of the educational programs of an institution if any part of the institution received Federal aid,” and had to close 674 complaints in whole or in part for lack of jurisdiction because of Grove City). Similarly, the House Judiciary Committee recognized that “[f]rom the outset,” the “Title VI enforcement regulations” provided “broad coverage” and were “intended to apply to the entity which has received federal funds, not just to previously identified particular programs for which funds are earmarked.” H.R. Rep. No. 829, Pt. 1, 98^th Cong., 2d Sess., 23-24 (1984).

When Congress enacted the CRRA, it was eminently aware of the disparate impact standard embodied in the Title VI regulations,^[29] and was equally aware that these regulations had been applied institution-wide before Grove City. Senator Kennedy, a primary sponsor of the legislation, explained that “title VI regulations use an effect standard to determine violations and that the Federal courts have upheld use of an effect standard.” 134 Cong. Rec. 229 (1988); see also id. at 247 (where Senator Packwood, another key sponsor of the legislation, explained that “[p]rior to the Grove City case, everyone. . . thought that the Title IX regulations meant institution wide coverage”). A memorandum from the Office of Management and Budget submitted during the hearings made clear that, under the proposed legislation, “every licensed attorney would be empowered to file suit to enforce the ‘effects test’ regulations of agencies, challenging practices in every aspect of every institution that receives any Federal assistance.” Civil Rights Act of 1984: Hearings on S. 2568 Before the Subcomm. on the Const. of the Senate Comm. on the Judiciary, 98^th Cong., 2d Sess. 527 (1984) (emphasis in original).

Since the CRRA’s enactment, federal agencies have interpreted the Title VI regulations, including the disparate impact regulations, to cover those programs that fit within the broad statutory definition of a “program or activity” under 42 U.S.C. § 2000d-4a. On November 13, 2000, the U.S. Department of Education issued final regulations amending its Title VI regulations to explicitly incorporate the statutory definition of “program or activity.” See Conforming Amendments to the Regulations Governing Nondiscrimination on the Basis of Race, Color, National Origin, Disability, Sex, and Age Under the Civil Rights Restoration Act of 1987, 65 Fed. Reg. 68050 (Nov. 13, 2000) (codified at 34 C.F.R. §§ 100 et seq.) (Title VI regulations). In explaining the reasons for the amendment, the Department of Education states that the amendment does not alter its interpretation of its regulations as having institution-wide coverage. See 65 Fed. Reg. 68050-51. Rather, the Department of Education issued the amendment to correct an improper interpretation of the regulations by one federal appeals court, Cureton v. National Collegiate Athletic Ass’n, 198 F.3d 107 (3d Cir. 1999), and to avoid further judicial rulings that adopt the Cureton analysis. See 65 Fed. Reg. 68050-51. In Cureton, the Third Circuit held that Title VI’s disparate impact regulations, unlike the statute itself, are “program specific.” 198 F.3d at 115. In its amended Title VI regulations, the Department of Education “disagrees with the Cureton decision” because “[t]hat decision would thwart clearly expressed congressional intent” and conflicts with longstanding administrative interpretation of the regulations as having broad, institution-wide application. See 65 Fed. Reg. 68050-51.^[30]

Similarly, the U.S. Department of Justice, which coordinates the executive branch’s enforcement of Title VI, has stated that “[t]he original regulations implementing Title VI and the other statutes reflect the broad interpretation of coverage that was reversed by the Supreme Court in Grove City and restored by the [Civil Rights] Restoration Act. Therefore, they should consistently apply the Act’s definition to all of the activities of a recipient.” Restoration Act Clarifies Meaning of “Program or Activity,” 9 Civil Rights Forum No.1, at 3 (Spring 1995) (excerpts attached as Exhibit 3). This Court should likewise interpret the Title VI regulations consistently with the statute (and defer to the agencies’ interpretation of their own regulations). See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-44 (1984).

In this Circuit and one other, judicial decisions concerning regulations promulgated under Title IX strongly support the view that the Title VI regulations should be enforced consistent with the institution-wide definition of “program or activity” established by the CRRA following – and displacing – the Grove City decision. In Horner v. Kentucky High Sch. Athletic Ass’n, a case involving Title IX claims that the court characterized as “challeng[ing] the disparate impact of [a] concededly neutral . . . rule” on the grounds that “the rule disproportionately and adversely affects young women”, the Sixth Circuit recognized that the CRRA established an institution-wide definition of “program or activity.” Id. at 271-72, 275. The court also discussed the Defendants’ compliance with Title IX “regulations implementing the statute’s nondiscrimination requirements.” Id. at 273. Although the court did not specifically address whether, or hold that, the CRRA’s institution-wide definition of “program or activity” applies to Title IX’s disparate impact regulations, it effectively did so.^[31] In Cohen v. Brown Univ., 809 F. Supp. at 982-83, the court held that a university’s receipt of federal funds made the school as a whole, including its athletic department (which the school did not admit or deny received such funds), subject to the plaintiffs’ sex discrimination claims under Title IX and its implementing regulations. Given that Title VI was Congress’ model for enacting Title IX, these ruling further support rejection of the result in Cureton.

For the reasons set forth above, this Court should reject Defendants’ unduly restrictive view of Title VI and its implementing regulations. Defendants’ view is directly contrary to the scope of coverage embodied in the CRRA and applied by the federal agencies. Indeed, under Defendants’ theory, federally funded entities would have an incentive to wall off as many of their operations as possible from using federal dollars, rather than eliminate discrimination. This is exactly the situation that Title VI, as amended by the CRRA, is designed to avoid. Based on the CRRA, it is clear that Defendants fit within the definition of a covered “program or activity” under Title VI and its implementing regulations.

IV. THE PLAINTIFFS HAVE STANDING TO ASSERT THEIR DISCRIMINATION CLAIMS UNDER THE CONSTITUTION’S “CASE OR CONTROVERSY” REQUIREMENT.

In their Motion to Dismiss, Defendants attempt to elevate the requirements of standing to unprecedented heights. Longstanding case law recognizes the liberal manner in which a court is to determine questions of standing. Instead of accepting this basic approach, Defendants erroneously argue that, at this stage of the proceedings, if Plaintiffs cannot prove their case, the case must be dismissed for lack of standing. Defs. Br. at 19-26. As discussed below, this position is just plain wrong.

The Plaintiffs in this lawsuit are African-American, Hispanic, and Native American high school students who are pursuing post-secondary education, but who have been or will be denied scholarships under the Scholarship Program. The National Association for the Advancement of Colored People, Michigan State Conference (“NAACP”), is an institutional plaintiff with 25,000 members statewide, including 34 branches and college-youth divisions. Some of the members of the NAACP are high school students who have been, or will be, denied awards under the Scholarship Program. SAC at ¶10.

In their Motion to Dismiss, Defendants do not challenge the standing of the NAACP, stating that they “await receipt of plaintiffs’ further particularized allegations of fact supportive of the NAACP’s standing . . . .” Defs.’ Br. at 26. Plaintiffs will nevertheless address the question of the NAACP’s standing in anticipation of Defendants’ disputing the organization’s standing in their reply Brief or any supplemental Brief they may file on the issue of organizational standing.

A. The Individual Plaintiffs Can Establish that They Have Suffered an “Injury in Fact” Caused by the Defendants’ Actions.

In order to establish standing for the purposes of the constitutional “case or controversy” requirement, a plaintiff must show that he or she “personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the Defendant.” Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1949). In addition, a plaintiff must establish that the injury is “likely to be redressed by a favorable decision.” Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38 (1976). Standing does not, however, depend on whether plaintiffs will actually prevail. McCleskey v. Kemp, 481 U.S. 279, 292 n.8 (1987).

In Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970), the Supreme Court stated that, for plaintiffs to establish standing, they must show an “injury in fact,” “causation in fact,” and that the “interest sought to be protected is within the zone of interest protected or regulated by the statute or constitutional guarantee in question.” Defendants do not challenge the fact that the interest sought to be protected by Plaintiffs is within the zone of interest protected or regulated by the statutes or constitutional guarantees at issue. See Defs.’ Br. at 19-26. Rather, Defendants argue that the individual Plaintiffs lack standing because they cannot establish an “injury in fact” or a causal relationship between the injury and the challenged conduct, and that there is no likelihood that the injury would be redressed by a favorable decision. Id.

With respect to the “injury in fact” component of the standing requirement, this Court should follow the Supreme Court’s decision in University of California Regents v. Bakke, 438 U.S. 265 (1978). In that case, the Court rejected the university’s argument that the plaintiff lacked standing to challenge the school’s allegedly discriminatory admissions policy because he could not prove that he would have been admitted were it not for the challenged policy. The Supreme Court stated that the plaintiff had suffered an “injury in fact” because his chances for admission were reduced by the policy. Id. at 280-81, n.14 (Powell, J., concurring).

The Bakke Court’s “impairment of opportunity” approach to the “injury in fact” requirement was followed in Sharif v. New York State Educ. Dep’t, 709 F. Supp. 345 (S.D.N.Y. 1989). In Sharif, the State of New York denied female students an equal opportunity to achieve state merit scholarships by relying solely on the Scholastic Aptitude Test (SAT) to determine eligibility. Ten female high school students, individually and on behalf of all others similarly situated, and two organizational Plaintiffs sought declaratory and injunctive relief from the state, alleging that its exclusive reliance on the SAT to award scholarships discriminated against female students in violation of the Equal Protection Clause of the Fourteenth Amendment and Title IX, 20 U.S.C. §§1681, et seq.

In rejecting the State of New York’s argument that the Plaintiffs lacked standing, the court stated:

Plaintiffs here alleged that their chances for winning a state merit scholarship are reduced by the [State’s] practice of basing such awards solely on SAT scores and that, therefore, they are less likely to receive benefits such as substantial public recognition, an enhanced ability to attract additional scholarships, and an increased opportunity to attend the college or university of their choice. These allegations alone are sufficient to establish “injury in fact.”

Sharif, 709 F. Supp. at 356 (emphasis in original).

For a Plaintiff to satisfy the “causation in fact” requirement, he/she must show that the injury is both “fairly traceable” to the Defendant and “redressable.” Allen v. Wright, 468 U.S. 737, 753, n.19 (1984). As with injury in fact, causation in fact does not require a showing of complete certainty. As one federal appeals court explained:

All that is required is a showing that such relief be reasonably designed to improve the opportunities of a Plaintiff not otherwise disabled to avoid the specific injury alleged. To ask the Plaintiffs to show more than they would ‘benefit in a tangible way from the court’s intervention,’ would be to close our eyes to the uncertainties which shroud human affairs.

Huntington Branch N.A.A.C.P. v. Town of Huntington, 689 F.2d 391, 394 (2d Cir. 1982) (emphasis in original).

The individual Plaintiffs in this case allege that Michigan’s sole reliance on the MEAP-HST to award merit scholarships is the direct cause of their injuries. Such injuries would be redressed if this Court were to reject the state’s sole use of the MEAP-HST to award the scholarships and, instead, require the state to develop an equally effective alternative procedure that would reduce the disparate impact on African-American, Hispanic, and Native-American students.

Like the Defendants in Sharif, Defendants here argue that there is no causal relationship between the alleged injuries and the challenged conduct. See Defs.’ Br. at 23-25. In response to this argument, the Sharif court stated:

The fact that some of the named Plaintiffs may not receive scholarships if the injunction is granted presents no barrier to the suit. The claim rests on the alleged discriminatory nature of the system as a whole. In analogous circumstances, the Supreme Court held that a black would-be resident had standing to challenge discriminatory zoning practices, because he intended to apply for housing, although he might not actually obtain it. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264 . . . (1977). Here, as in Arlington, if the requested relief is granted, the Plaintiffs would no longer suffer the injury complained of.

Sharif, 709 F. Supp. at 357 (citations omitted).

Plaintiff Anita White, an African-American female, graduated from Belleville High School in the City of Belleville in May of 2000. Out of a total class of 351, she ranked 32nd. She had a cumulative grade point average of 3.4, was in the National Honor Society, and was nominated for the National Youth Leadership Forum for Medicine. She had taken advanced placement classes in history and chemistry. During the school year, she worked 15 hours a week. White Aff., ¶1-3, PI. Exhibit 6.^[32]

Plaintiff White is currently enrolled at Central Michigan University where she is receiving substantial financial aid. Because of her interest in medicine, Michigan State University was her first choice. However, because Michigan State University could not match the financial aid package offered by Central Michigan University, Plaintiff White was forced to accept her second choice. According to her affidavit, “a merit scholarship would have reduced the high cost and might have enabled [her] to afford greater educational opportunities of Michigan State, helping [her] get into medical school and pursue a medical career in obstetrics.” White Aff., ¶4, PI. Exhibit 6. Moreover, Plaintiff White was “disappointed not to get a merit scholarship because [her] hard work was denied in the process.” White Aff., 4, PI. Exhibit 6.

Plaintiff Eugene Seals, an African-American male, is a May 2000 graduate of Saginaw High School in the City of Saginaw. Out of class of 207, he ranked 28th, with a cumulative grade point average of 3.48. He was in the National Honor Society and was a varsity athlete in four sports. Plaintiff Seals also participated in extracurricular activities, including youth and drama programs. Seals’ Aff., ¶1-2, PI. Exhibit 7.

Plaintiff Seals is currently enrolled in the University of Miami of Ohio and is dependent upon the receipt of scholarship funds in order to complete his college training. Seals’ Aff., ¶3, PI. Exhibit 7. He wanted to “win a Michigan Merit Scholarship to show his parents that [his] hard work had been recognized.” Seals’ Aff., ¶4, PI. Exhibit 7.

Plaintiff Bianca Kelly, an African-American female, is a May 2000 graduate of Beecher High School in the City of Mt. Morris. Out of class of 85, she ranked 6^th, with a cumulative grade point average of 3.4. She was a member of the National Honor Society and was honored by the Flint Journal as an outstanding black scholar because of her ability to maintain a 3.0 GPA or above throughout her high school career. She engaged in extracurricular activity as a varsity cheerleader and studied international programs. Kelly Aff., ¶1-2, PI. Exhibit 8.

Plaintiff Kelly is currently attending Howard University in Washington, D.C. She is receiving one local scholarship and does not have the ability or a current plan to finance her college education at Howard University. She is and will be dependent on scholarships for the continuation of her college career at Howard. Kelly Aff., ¶3, PI. Exhibit 8. Of equal importance is the loss of recognition she experienced when rejected for a state scholarship. She said “a scholarship would have meant my serious efforts were recognized.” Kelly Aff., ¶4, PI. Exhibit 8.

Plaintiff James Smith, an African-American male, graduated from Ypsilanti High School in May of 2000. He ranked in the top quarter of his class of 208. His cumulative grade point average was 3.1. He was an honor roll student in high school and a varsity football player. He worked part-time for 25 hours a week throughout his senior school year. Smith, Aff., ¶1-2, PI. Exhibit 9. His first school choice was Pittsburgh Art Institute, which specializes in computer animation, his field of interest. In his affidavit, Plaintiff Smith stated, “I need financial assistance in order to go to college. I am worried about not being able to pay for both tuition and room and board. A merit scholarship would have been a big help in securing money for college.” Smith, Aff., ¶4, PI. Exhibit 9. He further noted that a state scholarship also would have had the effect of motivating him to try to obtain a private scholarship. Smith, Aff. ¶5, PI. Exhibit 9.

Plaintiff Michelle Miller, an African-American female, graduated from Beecher High School in the City of Mt. Morris in May of 2000. She ranked 22nd in her class of 85. Her cumulative grade point average was 2.7. She was involved in an extracurricular activity known as” nature helpers,” a peer counseling group, and served as a student council member and class secretary. She also worked with a local community group helping serve meals to the needy. Miller Aff., ¶1-2, PI. Exhibit 10.

Plaintiff Miller is currently enrolled in Western Michigan University. Her plans are to become an elementary school teacher. She is unable to secure enough financial aid to cover her tuition. Because did not qualify for a college scholarship under the Scholarship Program, Plaintiff Miller had to secure “large loans to cover this deficit [plus] her living expenses.” She states in her affidavit that she is “worried about being able to pay back these loans after four years of college on a teacher’s salary.” Miller Aff. ¶3, Exhibit 10.

Defendants argue that Plaintiffs have not established an “injury in fact” because they “do not identify any activity they took . . . to qualify by retaking the MEAP test, or portions thereof.” Defs.’ Br. at. 22. Defendants also make light of the fact that some of the Plaintiffs have been unable to afford the college of their choice and that this circumstance is “hardly the stuff of injury.” Id. Defendants further assert that “Plaintiffs’ action is premature” because the state data regarding scholarship qualification for those scoring in the upper 25% of the ACT or SAT tests “will not be available until the month of October, 2000.” Id.^[33]

In answer to these arguments, Plaintiffs direct the Court’s attention to Sharif, where the district court ruled that the loss of “substantial public recognition,” the inability to attract additional scholarships, and the loss of opportunity to attend a college or university of one’s choice are sufficient to establish “injury in fact.” 709 F. Supp. at 356.

B. The Organizational Plaintiff Can Establish that its Members Would Have Standing to Sue in Their Own Right, the Interests it Seeks to Protect Are Germane to its Purpose, and Neither the Claim Asserted Nor the Relief Requested Requires the Participation of its Individual Members in the Lawsuit.

The Michigan State Conference of the NAACP is a not-for-profit organization with membership in excess of 25,000 people statewide, including 34 branches and college and youth divisions. The organization was founded to address mob-lynching and racial discrimination prevalent in the early 1900s. Throughout its history, the NAACP has been at the forefront of confronting and eliminating racism and injustice for people of color. Some of its members are high school students who have been, or will be, denied awards under the Scholarship Program. SAC at ¶10. The notion that organizations have standing to assert their members’ injuries is grounded in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 459 (1958), where the Court noted that for the purposes of determining the scope of the NAACP’s rights as a litigant, the association “and its members are in every practical sense identical.” In that case, the Court permitted the NAACP to rely on a violation of its members’ First Amendment associational rights when suing to bar the State of Alabama from compelling disclosure of the association’s membership lists.

The modern doctrine of associational standing was enunciated by the Supreme Court in Warth v. Seldin, 422 U.S. 490 (1975):

The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit . . . . [S]o long as the nature of the claim and of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause, the association may be an appropriate representative of its members, entitled to invoke the court’s jurisdiction.

Id. at 511.

The Supreme Court further elaborated on the issue of organizational standing in Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333 (1977). In that decision, the Court established a three-pronged test for associational standing:

[W]e have recognized that an association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

432 U.S. at 343.

Applying Hunt’s three-pronged test to the facts of this case, many of the NAACP’s African-American members who were denied a state scholarship solely on the basis of the MEAP-HST results would certainly have standing to sue in their own right. Moreover, the interests that the NAACP seeks to protect are germane to the organization’s central purpose of confronting and eliminating race discrimination. Finally, neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

Regarding the third prong of the associational standing test, the Supreme Court stated that, “if in a proper case the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured. Indeed, in all cases in which we have expressly recognized standing in associations who represent their members, the relief sought has been of this kind.” Warth, 422 U.S. at 515.

Based on the facts and law set forth above, Plaintiffs have established individual and associational standing to proceed with their discrimination claims.^[34] Accordingly, Defendants’ Motion to Dismiss for lack of standing should be denied.

CONCLUSION

For the reasons set forth above, Defendants’ Motion to Dismiss should be denied in its entirety.

By:_________________________________

Kary L. Moss (P49759) Michael J. Steinberg (P43085)

American Civil Liberties Union

of Michigan

60 West Hancock Street

Detroit, MI 48201 (313) 578-6800

By: ________________________________

Patricia Mendoza

Mexican-American Legal Defense

& Education Fund

188 West Randolph

Suite 1405

Chicago, IL 60601 (312) 782-1422

By:_____________________________

Judy Martin (P34320)

ACLU of Michigan Cooperating Attorney

4709 Woodcraft

Okemos, MI 48864

(517) 349-4531

By: ____________________________

Michael L. Pitt (P24429)

Peggy Goldberg Pitt (P31407)

ACLU of Michigan Cooperating

Attorneys

Pitt, Dowty, McGehee & Mirer, P.C.

306 South Washington

6^th Floor

Royal Oak, MI 48067

(248) 398-9800

By:_____________________________ Adele P. Kimmel

Rebecca E. Epstein

Trial Lawyers for Public Justice, P.C.

1717 Massachusetts Ave., N.W.

Suite 800

Washington, D.C. 20036

(202) 797-8600

By:_____________________________

Leonard Mungo

National Association for the

Advancement of Colored People,

Michigan State Conference

Mungo & Associates, P.C.

155 N. Congress

Suite 404

Detroit, MI 48226

(313) 963-0407

Attorneys for Plaintiffs

Dated: August 17, 2001

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ANITA WHITE; EUGENE SEALS; BIANCA KELLY; JAMES SMITH; MICHELLE MILLER; MARIA SALINAS; and NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, MICHIGAN STATE CONFERENCE, individually and on behalf of all those similarly situated, Plaintiffs, v. JOHN ENGLER, Governor, State of Michigan, in his official capacity; MICHIGAN MERIT AWARD BOARD; DEPARTMENT OF TREASURY; MARK A. MURRAY, State Treasurer, in his official capacity; MICHIGAN DEPARTMENT OF TREASURY; DOROTHY BEARDMORE, President of the State Board of Education, in her official capacity; STATE BOARD OF EDUCATION; ARTHUR E. ELLIS, Superintendent of Public Instruction, in his official capacity; STATE DEPARTMENT OF EDUCATION, Defendants.

Case No. 00-CV-72882 Hon. Patrick J. Duggan

___________________________________________________/

PROOF OF SERVICE

STATE OF MICHIGAN )

) SS

COUNTY OF OAKLAND )

A true copy of PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS was served upon the attorneys of record by mailing same in a sealed envelope addressed as shown above, with postage prepaid, on August 17, 2001.

PATRICIA A. GIROUX, Notary Public

My Commission expires: 6/30/2002

---

^[1] Based on Plaintiffs’ withdrawal of their claim under Title VI’s disparate impact regulations, Defendants no longer appear to argue (as they did in their original Motion to Dismiss) that Plaintiffs were required to exhaust the administrative remedies available under Title VI and its implementing regulations before filing suit. To the extent that Defendants may still press this position, Plaintiffs incorporate by reference their original Response to Defendants’ Motion to Dismiss (filed on October 2, 2000), which argued that there is no exhaustion requirement.

^[2] Oddly enough, on one level, Defendants appear unwilling to accept that Plaintiffs have asserted claims for intentional discrimination, repeatedly stating in their Motion to Dismiss that Plaintiffs only assert a claim for disparate impact discrimination. See Defendants’ Brief in Support of Motion to Dismiss (“Defs.’ Br.”) at 1-3, 8. Defendants ignore the fact that Plaintiffs’ Second Amended Complaint clearly includes claims for intentional discrimination under Title VI, the Equal Protection Clause, and § 1983. See Second Amended Complaint at ¶¶ 52-62. Apparently, Defendants also ignore the arguments made in Plaintiffs’ Brief in Support of Motion for Preliminary Injunction (“Pls.’ PI. Br.”) concerning the intentional discrimination claims. Among other things, Plaintiffs argue that (1) Defendants’ use of the MEAP-HST fails the rational basis test under the Equal Protection Clause of the Fourteenth Amendment, and (2) Defendants’ scholarship program fails the deliberate indifference standard for proving intentional discrimination. See Pls.’ PI. Br. at 23-28.

^[3] The Amendment provides:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. Const. Amend. XI.

^[4] Without setting forth one word of argument to support this leap in logic, Defendants merely refer to Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989), for the proposition that “a suit against a state official in his or her official capacity . . . is a suit . . . against the state.” Defs.’ Br. at 6. Defendants’ reliance on Will is misplaced. Defendants fail to cite the full text of the paragraph quoted, omitting a significant footnote that completely contradicts defendants’ conclusory argument:

“[O]fficial-capacity actions for prospective relief are not treated as actions against the State.” Kentucky v. Graham, 473 U.S., at 167, n.14; Ex parte Young, 209 U.S. 123, 159-160 (1908). This distinction is “commonplace in sovereign immunity doctrine,” L. Tribe, American Constitutional Law §§ 3-27, p. 190, n.3 (2d ed. 1988) . . . .

Will, 491 U.S. at 71 n.10 (emphasis added). Moreover, the Sixth Circuit clarified this issue beyond all doubt, stating that Will “reaffirmed that state officers who are violating a federal law may always be sued for purely injunctive relief – ‘capacity’ and ‘party in interest’ are irrelevant.” Futernick v. Sumpter Township, 78 F.3d 1051, 1055 (6^th Cir.), cert. denied, 519 U.S. 928 (1996) (citing Will, 491 U.S. at 71 n.10) (emphasis in original).

^[5] As noted in Defendants’ Brief, individual Defendants Murray, Beardmore, and Ellis have been succeeded by Douglas Roberts, Kathleen Strauss, and Thomas Watkins, respectively. Defs.’ Br. at 1.

^[6] Defendants argue that the Eleventh Amendment bars Plaintiffs’ Equal Protection claim under the Fourteenth Amendment because 42 U.S.C. § 2000d-7 of Title VI affords no express waiver of the states’ immunity from such claims. Defs.’ Br. at 17. Defendants offer no authority for this assertion, nor can they. The contention is simply baseless and is fully answered by the doctrine of Ex parte Young.

^[7] But see Westside Mothers v. Haveman, 133 F. Supp. 2d 549, 562 (E.D. Mich. 2001) (Cleland, J.) (ruling that Ex parte Young cannot apply to state officials enforcing Spending Clause legislation). As explained in more detail in Section II., infra, this Court should not follow Westside Mothers because, even assuming arguendo that Title VI is purely Spending Clause legislation (which Plaintiffs dispute), Westside Mothers is an aberrational case that disregards well-established precedent on § 1983 claims to enforce Spending Clause legislation. For example, Westside Mothers contradicts seminal Supreme Court cases involving § 1983, which were based on state officials’ enforcement of Spending Clause legislation. See Rosado v. Wyman, 397 U.S. 397 (1970); Maine v. Thiboutot, 448 U.S. 1 (1980); Wright v. City of Roanoke Redev. and Hous. Auth., 479 U.S. 418 (1987); Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498 (1990). Judge Cleland acknowledged that these and other Supreme Court cases seem to contradict his unique holding. Westside Mothers, 133 F. Supp. at 561, 582. Notwithstanding this acknowledgment, he disregarded the four Supreme Court cases cited above, which allowed § 1983 suits against state officials enforcing Spending Clause legislation, as having “no binding precedential value.” Id. at 583.

^[8]As set forth in the Memorandum of the United States As Proposed Intervenor (“U.S. Interv. Mem.”), although the legislative history of Title VI’s original enactment includes evidence of congressional intent to exercise authority under the Spending Clause, the legislative history also shows that Congress intended to exercise power under Section 5. See U.S. Interv. Mem. at 4 n.3.

^[9] Without citing to any particular portion of the Supreme Court’s decision in Sandoval, Defendants erroneously assert that the Sandoval Court held that 42 U.S.C. § 2000d-7 was not a valid exercise of congressional power. See Defs.’ Br. at 11, 15. Defendants’ characterization of Sandoval’s holding is just plain wrong. The Court did not rule on the Eleventh Amendment immunity issue; its holding was limited to the issue of whether there was a private right of action to enforce Title VI’s disparate impact regulations. Sandoval, 121 S. Ct. at 1515.

^[10] Based on the Supreme Court’s decision in Sandoval, Plaintiffs recognize that Defendants cannot be sued directly under the Title VI regulations prohibiting disparate impact. That decision, however, recognizes the right of private citizens to sue for intentional discrimination under Title VI itself and the Title VI regulations prohibiting intentional discrimination. Sandoval, 121 S. Ct. at 1516, 1518. When Plaintiffs claim that they are entitled to assert claims under the Title VI regulations, they are either referring to the regulations that prohibit intentional discrimination or to the enforcement of the disparate impact regulations under 42 U.S.C. § 1983 (rather than directly under the disparate impact regulations themselves).

^[11] This section of the Brief focuses on Plaintiffs’ § 1983 claim to enforce Title VI’s disparate impact regulations. However, Plaintiffs also seek to enforce the Equal Protection Clause of the Fourteenth Amendment and Title VI under § 1983. See SAC at ¶¶ 59-62. As explained below, infra at 21 & n.15, 22 & n.4, the plain language of § 1983 and well-established judicial precedent demonstrate that the provisions of the Constitution (such as the Equal Protection Clause) and federal statutes (such as Title VI) are enforceable under § 1983. See also Section I. A., supra at 11, citing cases where Fourteenth Amendment claims were enforced under § 1983.

^[12] Even though Plaintiffs’ Second Amended Complaint does not assert a claim directly under Title VI’s disparate impact regulations, Defendants continue to argue that there is no private right of action to enforce those regulations. See Defs.’ Br. at 17-18. Defendants’ arguments are irrelevant in light of Plaintiffs’ withdrawal of their claim under the regulations.

^[13] In an unreported decision issued on June 15, 2001, the Third Circuit stayed the district court’s issuance of an injunction in this case, pending the appeal. (According to our research, the Third Circuit’s decision is unavailable on electronic databases.) The Third Circuit has not yet ruled on the merits of the appeal.

^[14] In their Brief, Defendants raise the question of whether Plaintiffs’ § 1983 claim survives the dismissal of their Title VI and Fourteenth Amendment claims (see Defs.’ Br. at ii, iii), but they never analyze or answer this question. In addition, Defendants neither raise nor analyze the issue of whether Title VI’s implementing regulations are enforceable under § 1983.

^[15] Section 1983 provides, in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law. . . .

42 U.S.C. § 1983.

^[16] The Supreme Court has held that the term “laws” includes federal statutes. Maine v. Thiboutot, 448 U.S. 1, 6-8 (1980).

^[17] In Westside Mothers v. Haveman, the district court emphasized whether the rights at issue were “secured” by federal law for purposes of § 1983, holding that Spending Clause legislation does not meet this requirement. 133 F. Supp. 2d at 581-82. In that case, plaintiffs filed suit under § 1983, alleging that Michigan failed to provide certain services required by the federal Medicaid statute. The judge reasoned that, because states have the power to elect or decline to participate in the Medicaid program, which is purely Spending Clause legislation, the rights created by the Medicaid statute are effectively “secured” by state law. Id. at 581-82, 559 n.9. Thus, he held that § 1983 cannot be used to enforce the Medicaid statute. Id. at 581-82.

The opinion cites virtually no supporting precedent for this proposition and acknowledges its apparent contradiction of Sixth Circuit and United States Supreme Court precedent. Id. at 562, 582-83 (citing Supreme Court cases holding that Spending Power programs fall within Supremacy Clause, and noting Supreme Court and Sixth Circuit precedent upholding § 1983 suits against state officers for violations of Spending Clause programs). The Sixth Circuit has previously enforced Spending Clause statutes and regulations under § 1983, without even questioning whether these rights are “secured” under federal law. E.g., Wood v. Tompkins, 33 F.3d 600, 607-11 (6^th Cir. 1994) (analyzing three-part test and holding certain sections of Medicaid statute and regulations enforceable under § 1983). Moreover, the only subsequent published opinion that has cited to Westside Mothers explicitly rejected its reasoning and holdings. Boudreau v. Ryan, 2001 WL 840583, at *5 (N.D. Ill. May 2, 2001). Opinions in other jurisdictions also contradict Westside Mothers. E.g., Dajour B.v. City of New York, 2001 WL 830674, at *8-*12 (S.D.N.Y. July 23, 2001) (allowing § 1983 claim against state officials for violating Medicaid statute and regulations, citing cases holding same); Oklahoma Nursing Home Ass’n v. Demps, 792 F. Supp. 721 (W.D. Okla. 1992) (same).

In any event, Westside Mothers does not apply to this case. Unlike the Medicaid statute, Title VI was not enacted solely under the Spending Clause. See Section I. B., supra, at 14 n.8. Moreover, Title VI’s abrogation provision, 42 U.S.C. § 2000d-7, could have been enacted pursuant to Congress’ powers under Section 5 of the Fourteenth Amendment. See Section I. B., supra, at 12-16.

^[18] Although the enforceable rights test was created in the context of determining whether federal statutes create enforceable “laws” under § 1983, the Sixth Circuit applies the same three-part test to federal regulations. E.g., Loschiavo, 33 F.3d at 551 (citing Wright, 479 U.S. at 431), cert. denied, 513 U.S. 1150 (1995).

^[19] Title VI is one of several statutes prohibiting discrimination in federally funded programs or activities. See 20 U.S.C. § 1681 (Title IX), 29 U.S.C. § 794 (Section 504 of the Rehabilitation Act of 1973), and 42 U.S.C. § 6102 (the Age Discrimination Act of 1975), all of which were modeled on Title VI and contain identical language regarding federally funded programs or activities.

^[20] The Senate Report accompanying the legislation announces outright that the purpose of the CRRA was “to overturn the Supreme Court’s 1984 decision in Grove City College v. Bell” and to “restore Title IX, Section 504, the Age Discrimination Act and Title VI to the broad, institution-wide application which characterized coverage and enforcement from the time of initial passage until the Grove City decision.” S. Rep. No. 100-64, at 2, 4 (1988), reprinted in 1988 U.S.C.C.A.N. at 3, 6.

^[21] Defendants neglect to mention the CRRA in their Motion to Dismiss. Though they cite to the definition of a “program or activity” established by the CRRA’s amendment to Title VI (see Defs.’ Br. at 9), they fail to quote a critical portion of that definition – namely, that it applies to all of the operations of an entity “any part of which is extended Federal financial assistance.” 42 U.S.C. § 2000d-4a (emphasis added). This omission is misleading, at best.

^[22] Two of these Defendants, the State’s Board of Education and Department of Education, are also responsible for creating, developing and/or administering the Michigan Educational Assessment Program High School Tests (“MEAP-HST”), on which the Scholarship Program is based. See SAC at ¶¶ 37-38.

^[23] Plaintiffs have also sued four individuals in their official capacities, including Governor John Engler and individuals who are affiliated with the named state agencies. See SAC at ¶¶ 12-13, 15, 17.

^[24] See Report from Michigan State Department of Education (attached as Exhibit 2), stating that for fiscal year 2001(October 1, 2000), “over $863.8 million dollars of the department’s [budget] is composed of state and federal education grants to local districts.” Exhibit 2 at 2.

^[25] Given the procedural posture of this case, the Court must construe the allegations of the Second Amended Complaint in the light most favorable to Plaintiffs. See Scheuer v. Rhodes, 416 U.S. at 236.

^[26] Plaintiffs also allege, and Defendants apparently do not dispute, that each of the four individual Defendants (the Governor, State Treasurer, President of the State Board of Education, and Superintendent of Public Instruction), direct and/or are members of, one or more of the three state agency Defendants that directly receive federal funds. See SAC at ¶¶ 12-13, 15, 17. In addition, Governor Engler, in his official capacity, is subject to Title VI because his office receives federal education funds through the Safe and Drug-Free School and Communities Act, 20 U.S.C. §§ 7101 et seq.; see 20 U.S.C. § 7114 (Governor’s programs).

^[27] Defendants apparently misunderstand Plaintiffs’ allegations because they repeatedly claim that Plaintiffs have sued the State and then argue that the State’s receipt of federal funds does not subject them to Title VI. Defs.’ Br. at 14, 18-19. This misses the point completely. Plaintiffs have not alleged that Defendants are subject to Title VI on the ground that the State of Michigan receives federal funds. Rather, all of the Defendant state agencies are subject to Title VI because they are either the direct recipients of federal funds or they are operations of federally funded entities. As a result, Defendants’ arguments regarding the inapplicability of Title VI to the State are simply inapposite.

^[28] Defendants also cite Buchanan v. City of Bolivar, 99 F.3d 1352 (6^th Cir. 1996), to support this position, Defs.’ Br. at 18, but their reliance on that case is misplaced. In Buchanan, the Sixth Circuit dismissed a Title VI claim, stating in dicta that the plaintiff had failed to “prove the threshold requirement that the program from which [her] son was excluded receives federal financial assistance.” 99 F.3d at 1356. The court’s limited discussion of the “program or activity” requirement ignored the fact that, since the CRRA was passed, an “operation” of a federal fund recipient – not itself receiving funds – is subject to suit under Title VI. See 42 U.S.C. § 2000d-4a(1). The court also erroneously relied on a pre-Grove City decision, West Zion Highlands v. City of Zion, 549 F. Supp. 673, 675 (N.D. Ill. 1982), which applied the pre-CRRA, “program specific” interpretation of Title VI’s coverage. 99 F.3d at 1356. In any event, the Buchanan court never analyzed the issue raised here concerning whether Title VI’s coverage is entity-wide or program specific; if it had, presumably the court would have surveyed the ample post-Grove City authorities (many of which are cited above) and would have reached a different conclusion.

^[29] The Supreme Court upheld the validity of the implementing regulations prohibiting disparate impact discrimination in Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 584 n.2, 607 n.27 (White, J.), 617-23 (Marshall, J.), 642-45 (Stevens, Brennan & Blackmun, JJ.) (1983). See also Alexander v. Choate, 469 U.S. 287, 293 (1985).

^[30] Based on Cureton, Defendants argue that the Title VI regulations apply only to the particular program receiving federal funds, rather than to all the operations of an entity that receives federal funds. Defs.’ Br. at 9. Given the Department of Education’s rejection of the Cureton analysis, this Court should likewise reject Defendants’ position as untenable.

^[31] The court had no occasion to clarify this matter in its subsequent review of claims by the plaintiffs because, in the interim, the state legislature rendered moot the plaintiffs’ claims for injunctive and declaratory relief, leaving only their damages claims requiring proof of discriminatory intent. Horner v. Kentucky High Sch. Athletic Ass’n, 206 F.3d 685, 688-89 (6^th Cir. 2000).

^[32] The designation “PI. Exhibit” refers to the exhibits attached to Plaintiffs’ Brief in support of their Motion for Preliminary Injunction, which was filed with this Court on June 27, 2000.

^[33] Data referred to in Defendants' Brief as unavailable was supplied in October, 2000. the data indicates that there is a statistically significant disparate impact for students who retook the MEAP and for students who qualified via the MEAP/SAT-ACT combination.

^[34] If the Court has any question about the factual basis for Plaintiffs’ assertion of standing, it has the power to allow or require Plaintiffs to supply, by amendment to the complaint or affidavits, further particularized allegations of fact deemed supportive of their standing. Warth, 422 U.S. at 501-02. Plaintiffs request that the Court give them this opportunity, if necessary.