Full opinion text
MEMORANDUM OPINION AND ORDER HOOD, District Judge. I. FACTS Plaintiffs filed the cause of action in the Eastern District of Michigan on July 26, 2001. Plaintiffs allege Defendants Detroit Public Schools (“DPS”), Detroit Board of Education and Dr. Kenneth Burnley chose to build the new Beard Elementary School on a site that is contaminated. (See Complaint ¶ 25). The Defendants announced in September of 2000, that Beard Elementary School located in Southwest Detroit at 840 Waterman would close in 2001 and a new Beard School would be built on Beard, Green and Chatfield Streets in the City of Detroit (“the Site”). (See Complaint ¶ 29). McMillan Elementary School was also designated to close in the spring of 2001 with a plan to reassign the McMillan students to the new Beard location. (See Complaint ¶ 30). The parties agree that the old Beard School lacks the proper facilities required such as an auditorium, cafeteria, gymnasium and playground. The McMillan School has experienced a significant decline in enrollment falling below 300 students. Based upon the lack of proper facilities and the decline in enrollment at McMillan, Defendants began to develop a new state of the art neighborhood school. The new Beard Elementary School sits on 6.45 acres in southwest Detroit. The school is scheduled to open on Tuesday, September 4, 2001. It is alleged that the current Beard student body is comprised of 61% Hispanic and 13% African American. (See Plaintiffs Exhibits B & C). The McMillan student body is made up of 58% African American and 21% Hispanic. (Id.) Plaintiffs contend that African American students and Hispanic students are groups which are protected by Title VI of the Civil Rights Act of 1964 based upon the percentage of African American and Hispanic populations in the Detroit Metropolitan area. (See Plaintiffs Exhibit E) Defendants have not disputed the demographics asserted by the Plaintiffs. The Site was used for industrial manufacturing, storage and maintenance operations from 1918 through 1964. The new Beard site was acquired by the Detroit Public Schools in 1965. The Site was used by DPS for educational training, vehicle maintenance and limited manufacturing operations until 1978. The DPS thereafter used the Site as a vocational training school known as the McNamara Skills Center until 1986. (See Plaintiffs Exhibit F, Phase I Environmental Site Assessment Report) Plaintiffs state that an underground storage tank (“UST”) was housed on the property which has been vacant since the 1986 closing of the Skills Center. Defendants state that in the late 1990s the Site became the focus of redevelopment. In order to aid in that development, a Task Force was created which included members from the Michigan Department of Environmental Quality (“ MDEQ”), Wayne County, City of Detroit, and Southwest Detroit Environmental Vision (“SDEV”), a local environmental organization. The Task Force recommended that the Site be put to productive use. Plaintiffs claim that Defendants engaged in negotiations with the SDEV and the Task Force to gain custody of the property through a swap or a direct sale of other properties. Plaintiffs contend that Defendants did not seriously consider an alternative site for a new school. Plaintiffs state that all negotiations ended between the SDEV and DPSwhen the Reform School Board was appointed. It is alleged that a DPS staff person stated at a community meeting that the size of the lot and ownership by DPS was conducive to the quick construction of the school. The Site was zoned M4 which is an Intensive Industrial District. Although the Site was zoned M4, Joseph Graf stated that it was chosen as the Site for the new school because: To the best of my knowledge there is no other site in that neighborhood of that size that would accommodate a school of 83,000 square feet.... Secondly, the Detroit Public Schools already owns that property and so there was no need to go out and acquire differently given that facts.... Thirdly, when we study the environmental concerns that were indicated in the Brownsville Study [sic], we knew that there were concerns that could be addressed and that site could be made safe for the school site. See Defendant’s Exhibit B, ¶ 8. Plaintiffs allege that the Detroit Board of Zoning Appeals (“BZA”) was told that Beard was being built on the Site because the site was large enough to accommodate the school and the site was owned by the Detroit Public Schools. Defendants contend that the BZA found that a new school on the Site would be a “more compatible use to the surrounding development” and would enhance the social, physical and economic well being of the surrounding residential neighborhood. A study on the prior uses of the Site was conducted by the University of Michigan’s School of Natural Resources and Environment in response to concerns from members of the local community and the SDEV. The study revealed a long history of industrial uses and indications that the underground storage tanks might still be present. (See Plaintiffs’ Exhibit A) The report generated as a result of the study was allegedly presented to the Detroit Public Schools staff in the spring of 1999 but the staff refused to accept the report as proof of site contamination. SDEV thereafter asked the MDEQ and the Wayne County Brownfield Redevelopment Authority (“WCBRA”) to evaluate the level of contamination on the Site and to clean up the Site. In the summer of 1999, WCBRA arranged for a site assessment and historical analysis of the past uses of the Site by AKT Consultants, Ltd. (“AKT”) and a determination regarding whether there continued to be contamination. AKT conducted an environmental site assessment and determined that there were recognized environmental concerns and additional environmental investigations were conducted on the Site. The following historical industrial uses were found by AKT: • manufacturing and assembly of steel, brass, aluminum and other metal products; • radios and televisions; • refrigerators; • paper products; • textiles and automotive components; • storage or manufacture of paints, adhesives, lead batteries; • pharmaceutical goods; • electrical supplies; and • military tank components. Based upon the previous alleged uses of the Site, volatile organic chemicals (VOCs), semi-volatile organic chemicals, petroleum-related materials, polychlorinated biphe-nyls (PCBs), chlorinated solvents, various heavy metals and radioactive paints were the recognized and potential environmental concerns. In August of 1999, a radiation survey was conducted. A subsurface investigation was conducted and 56 soil samples were submitted to the EPA for analysis. AKT also performed a partial geophysical survey, a radiation study and soil sampling. (See Plaintiffs’ Exhibit J) The samples were tested for VOCs, base neutral acid semi-volatile organic compounds (BNA SVOCs), PCB, pesticides and analyte metals. Several contaminants were found as a result of the sampling: arsenic, lead, PCB, carbon tetrachloride, benzopyrene, benzo(a)pyrene and trichlo-rethene. The subsurface investigation revealed saturated soils at depths seven (7) to twelve (12) feet below the ground surface, but the test wells yielded insufficient ground water samples. It is alleged that the levels of benzo(a)pyrene, PCB and arsenic were ten to fifty times higher than applicable residential criteria. Plaintiffs contend upon information and belief that the WCBRA reports were provided to Defendants. It was determined in March, 2000 through an AKT Phase II environmental site assessment that environmental cleanup was needed. Contaminants, which exceeded the generic Residential Cleanup Criteria, were carbon tetrachloride, poly-nuclear aromatic hydricarbibs (PNAs), PCBs, arsenic and lead, but the contaminants only exceeded the criteria for groundwater. Two anomalies were found near the eastern boundary of the property and a third near the western portion of the Sitewhen a geophysical survey of the Site was conducted in July and August of 1999 to locate underground storage tank locations. When the June 16, 2000 test pit investigation was conducted, two USTs were discovered. The USTs contained some liquids which were low level contaminants but were below the Residential Cleanup Criteria. The liquid was found to be tapped surface water. Most of Defendants’ cleanup activities occurred after the AKT assessment. AKT, the Detroit Public School Program Manager Team, L.L.C. (“PMT”), and MDEQ, worked together to develop a cleanup and remediation program for the Site. MDEQ was involved to ensure that any remediation would protect human health, safety and welfare, as well as the environment. Plaintiffs also contend that the investigations conducted by AKT and Defendants were not broad enough. AKT allegedly took soil samples only in areas which had “recognized environmental concerns” and did no sampling or soil gas testing and no investigation of an adjacent railroad bed. Defendants only tested for specific contaminants. Defendants did some additional testing at the request of MDEQ. Twelve (12) soil samples were taken from the footprint (perimeter) of the school building itself. Sixty (60) additional soil samples were taken from the potentially contaminated soil but no in-depth sampling was taken. Plaintiffs state that the uncertainties of the contamination are evidenced by the February 2001 discovery of two 10,000 gallon USTs, and seven additional locations of elevated PCB levels. Two of the locations had contamination levels almost ten times higher than residential direct contact criteria such that additional soil removal was required. (See Plaintiffs’ Exhibit P) During the final soil testing, it is alleged that the residential direct contact criteria was exceeded in nine (9) areas for PCBs, four locations for arsenic, five locations for benzoz(a)pyrene and one location for benzene. NTH Consultants, an organization which provides infrastructure engineering and environmental services, was selected in July of 2000 to excavate and remove contaminated soils and USTs. Because odors were detected during the removal of the soil surrounding USTs, an additional 120 cubic yards of soil were removed. In response, seven confirmatory samples were collected. Ten separate excavations were undertaken initially in an effort to remove pockets of contamination. NTH excavated a 30 foot by 30 foot square area in each excavation. The depth of eight of the excavations was approximately four feet and two of the excavations were approximately ten feet in depth. The initial soil excavations began on July 10, 2000 and were completed on July 25, 2000. However, analytical data revealed that there continued to be contaminants present. After the completion of soil removal on July 25, 2000, Patricia Thornton, an MDEQ representative and John Russell met with PMT and NTH representatives to discuss the soil removal. Based upon the continued presence of contaminants, John Russell suggested that an engineered cap be installed to prevent human exposure to any remaining contaminants. Engineered caps are composed of pavement, a minimum of six (6) inches of topsoil, or the use of six (6) inches of other landscaping materials. Defendants argue that the use of the engineered cap is a common and accepted practice in Michigan. Defendants argue that MDEQ experts and the Michigan Department of Community and Mental Health (“MDCMH”) agree that the engineered cap will protect the health, safety and welfare of proposed students at the new Beard School by reducing potential contact with contaminated soil. The NTH plan for an engineered cap was approved by MDEQ on October 25 and 26, 2000. NTH oversaw the collection of 28 additional soil samples which were analyzed for 56 different VOCs. The samples were taken from near surface soils (0 to 12 feet) and from deep soils (8 to 10 feet) or from areas where field screening methods had indicated the possible presence of contamination. The screening methods included a photo-ionization detector, visual and olfactory observations. Only one of the 28 samples contained tet-rachloroethene and another trichloroeth-ene. Defendants contend that neither was above the Residential Cleanup Criteria. Another geophysical survey was performed on the entire Site April 4 through 6, 2001. Defendants admit that anomalies remained; however, no metal objects of any significant size remained on the Site. MDCMH conducted a health assessment of the Site following the April, 2001 geophysical survey and concluded: The property poses an indeterminate public health hazard ... MDCMH recommends additional sampling to determine if surface soil contains levels of these contaminants that could pose a public health risk. The Detroit Public Schools have proposed that surface soil on the property that will not be covered by buildings and pavement be removed to a depth of one foot. One foot of clean material will then be added to these areas to serve as an exposure barrier to underlying contaminated soil. The proposal provides an adequate remedy, and the MDCMH support it and recommends that it be fully implemented with all appropriate speed. One to two feet of soil was excavated from the Site from May 15, and July 1, 2001. Following the excavation, testing was conducted of the top three (3) inches of the surface soils as MDCMH recommended in its report. Smits Affidavit, ¶ 12. A gridding process was used to determine the number and location of additional soil samples to be tested. Smits Affidavit, ¶ 12. A total of 76 samples were taken. Only a few contained levels of contamination which exceeded Part 201 direct contact Residential Cleanup Criteria. However, none of the samples exceeded the volatilization to ambient air (inhalation) standard. Defendants assert that the vo-latilization standard protects children and adults following the installation of the engineered cap. Smits Affidavit, ¶ 12; Ven-man Affidavit, ¶ 17. Defendants contend that engineered caps have been used in Michigan in residential and recreational settings extensively such as Harbor Town Marina in Detroit, Rouge Park Sledding Hill in Detroit, University of Michigan North River Front Campus in Flint, Bay Harbor Golf Club in Petosky, playground and sports complex at the former Lyon Township Landfill in South Lyon and the Lansing Soccer Complex. The new Beard Elementary School engineered cap consists of the following: • the green space areas are covered with permeable plastic fabric and 4 inches of compacted gravel (crushed concrete), covered by 8 inches of clean topsoil. • the baseball and soccer fields are covered by 8 inches of compacted gravel and 8 inches of topsoil. • the pre-school and kindergarten playground are covered with 6 inches of compacted sand, a solid 4 inch concrete slab, 4 inches of pea gravel and a cushioning layer of 12 inches of wood mulch. • the parking lot and sidewalks are covered by 8 inches of compacted gravel covered by 3 inches of asphalt in the parking lot, and 4 inches of compacted sand covered by 4 inches of concrete pavement in the sidewalk areas. • the building area cap consists of 4 inches of compacted sand, covered by the solid 4 inch concrete slab of the building floor. See Defendant’s Exhibit 2, pp 28-31 and Smits Affidavit, ¶ 16. It is Defendants’ position that MDCMH could not as a matter of fact determine that the Site was a health risk. Defendants allege that the areas where PCBs were identified in excess of direct contact criteria were excavated. Smits Affidavit, ¶ 12. Over 275 different soil samples have been tested for various chemicals. Ven-man Affidavit, ¶ 6. Over 37,000 tons of contaminant soil have been removed from the Site. Defendants contend that the new Beard school is not a safety risk as long as the cap is constructed and properly maintained. Defendants claim that in an effort to make certain that there are no exposures to potentially impacted soil, routine inspections of the cap will be performed on a monthly basis. Inspections will be completed by the DPS school maintenance supervisor or other staff members appointed by the building principal. A log of monthly inspections will be maintained in the principal’s office. The public will be allowed to inspect the log. Defendants propose that where an inspection reveals that crushed concrete is exposed, the topsoil will be restored immediately to a thickness of eight inches. If the demarcation layer becomes visible, the crushed concrete or stone will be replaced to a thickness of four to eight inches and then topsoil. If a complete breach is discovered, activities in the area will be suspended and the areas will be sectioned off until repairs are made. An independent environmental expert will be retained to conduct an evaluation to ensure the inspections are conducted correctly. Any deficiencies will be noted in the inspection log and conveyed to the School Principal and the DPS Department of Environmental Health and Safety. Each year, an independent environmental consultant will conduct an in-house training seminar for school staff on how to know when the cap is damaged and to report any problems with the engineered cap. All construction activities which will potentially affect the engineered cap will require approval by the DPS Department of Environmental Health and Safety. If evidence of obvious contamination is encountered, the DPS’ Department of Environmental Health and Safety will be notified. DPS will provide written notification of the contamination of the Site to easement holders of record, utility franchise holders of record, on site workers, construction workers, utility workers and the owners or operators of all public utilities that serve the Site. In addition to the installation of an engineered cap, the Plan, as designed by NTH, includes additional soil testing and the development of a Part 201 Due Care Plan. Plaintiffs contend that the Due Care Plan developed by DPS to prevent the Beard Elementary School students from being exposed to contaminants is insufficient. The Due Care Plan provides for twelve (12) to eighteen (18) inches of crushed concrete and soil barriers to be placed over the contaminated soils. Monthly visual inspection of the soil and crushed concrete to ascertain whether the crushed concrete becomes visible would be conducted. However, the Due Care Plan provides no plans for periodic soil sampling to ensure that the contaminants are not moving into the building. Impermeable poured concrete has been placed in the kindergarten and pre-school play areas. In other areas, a semi-permeable geotex-tile liner has been placed under the crushed concrete. There was testimony that several construction workers became ill while working on the Site requiring reports to DPS and personal physicians. The construction workers reported severe symptoms of bloody noses, respiratory difficulties, fatigue, diarrhea and liver pain. (See Plaintiffs’ Exhibit Q) The illnesses were contributed to the strong smell of petroleum which was reported on the Site. It is also alleged that one of the wives of the construction workers had an unexplained rash. Additional testing of the Site was conducted by the Michigan Occupation Safety and Health Administration (“MIO-SHA”) and the Defendants. However, the origin of the illnesses are unknown. Plaintiffs allege that laborers, especially Spanish speaking laborers, were not adequately informed of hazardous materials at the Site. There have been significant reported problems with the remediation and control of the contamination of the Site. It is alleged that in November of 2000, Defendants’ contractors or subcontractors brought in arsenic contaminated soil to construct a berm. It is also believed that contractors mixed contaminated soil with clean soil to fill excavations. There have been problems with dust control and the spillage of contaminated soil from trucks leaving the site. It is Plaintiffs’ contention that if Defendants are having problems policing employees and contractors during the evaluation, remediation and construction phase, there will be problems implementing the operation and maintenance of the Plan. Plaintiffs’ experts opine that children are more susceptible to environmental toxins based upon their developmental stage, absorption, metabolic, consumption and detoxification rates and periods of prolonged exposure than adults. Arsenic found at the scene is ubiquitous. Arsenic is a human carcinogen and there are no known safe exposure levels. PCBs, also found on the Site, are potential carcinogens, endocrine disrupters and cause potential cognitive disorders and memory loss. (See Plaintiffs’ Exhibit W) Lead was also found at the Site. Lead is a neurotoxin, which allegedly impairs cognitive development and learning ability. Plaintiffs contend that there are serious health risks to children particularly in light of the fact that there are allegedly relatively high levels of environmental toxins from industrial uses in the community in conjunction with the lead paint exposures in the City of Detroit. Plaintiffs further assert that Defendants have deliberately precluded community participation and involvement in the decision making process regarding the Site. The first community meeting was not held until September of 2000 although the decision to build on the Site was made in May 2000. Defendants had already developed and submitted the Due Care Plan and commenced construction. The public meetings were held during the day when parents could not attend and school officials refused to answer questions from citizens. Although a Citizen Review Board was organized with the verbal approval of Defendants, it is alleged that the Review Board has not been allowed to effectively participate in the meetings. Defendants contend that they have been open, receptive and responsive to the comments and concerns of parents. Defendants claim that the meeting in May 2000 was open to the public and attended by members of the community. Another meeting was held in June 2000 to discuss the construction of the new school. Defendants contend that notice of the September 14, 2000 meeting was given in both English and Spanish, although no documentation of this was provided. MDEQ representatives, Pat Thornton and Lynn Buhl, attended the meeting. The first formal Project Advisory Community Meeting was held on October 2, 2000 to discuss the new school project. Other informal community information meetings were held to inform the community. On October 24, 2000, Detroit Public School Program Manager Team, L.L.L. (“PMT”) representatives met with State Representative Belda Garza to present the new Beard School project. Sehleyer Affidavit, ¶ 24. In February 2001, another formal Project Advisory Community Meeting was held to inform the community of the status of the school construction and installation of the engineered cap. Other informal meetings occurred on April 11, May 2, May 9, 2001 at the old Beard School and on April 26 and May 3, 2001 at the McMillan School. Richard Schleyer, a PMT representative, was periodically available at the old Beard and McMillan Schools to answer questions posed by parents in April and May of 2001. Defendants contend that they received a letter from Plaintiffs expressing their concerns. Plaintiffs admit that they had received and reviewed documents and discussed the project with DPS staff. Defendants have spent over $1.8 million dollars in addressing environmental and safety concerns at the new Site. Voluntary cleanup of the site was undertaken with the knowledge and concurrence of MDEQ. Defendants contend that they have been provided with $350,000 to be used in construction of a barrier at the Site. Over 275 different soil samples have been taken and over 37,000 tons of contaminated soil have been removed from the Site. Over 2.6 feet in depth of soil have been removed. DPS claims that it supported Plaintiffs’ formation of the Citizen Review Board and agreed to other conditions posed by Plaintiffs. Defendants state that they attempted to resolve any concerns raised by Plaintiffs as outlined in a July 25, 2001 letter to Plaintiffs’ counsel. Defendants agreed to: 1. The selection of an independent environmental consultant to advise on the need for additional testing and/or evaluations, if any; 2. Conduct an increased level of contaminant monitoring through established periodic inspections and thorough testing protocols; 3. Determine if groundwater exposure or migration is an issue beneath the site; 4. Record regular monitoring and maintenance activities and make all such records and reports publicly available at the school in both English and Spanish; 5. An independent consultant’s evaluation of precautions undertaken with respect to the adjacent railroad tracks, effects of flooding on the cap and potential damages from tree roots; 6. The creation of a Citizen Advisory Committee; and 7. Delay the opening of the school until September 4, 2001. Plaintiffs did not respond to the July 25, 2001 letter from CEO Burnley but instead on July 26, 2001, Plaintiffs filed a Complaint against the Detroit Public Schools, the Board of Education of the City of Detroit and Dr. Kenneth Burnley. On August 6, 2001, Plaintiffs filed this Motion for Preliminary Injunction. On August 13, 16 and 17, 2000, the Court heard oral arguments and the testimony of witnesses on behalf of Plaintiffs and Defendants. Supplemental affidavits and exhibits were filed on August 15, 16 and 20, 2001. II.STANDARD OF REVIEW A district court must consider the following factors when deciding whether to grant a preliminary injunction: I. The likelihood that the party seeking the preliminary injunction will succeed on the merits of the claim; II. Whether the party seeking the injunction will suffer irreparable harm without the grant of the extraordinary relief; III. The probability that granting the injunction will cause substantial harm to others; and IV. Whether the public interest is advanced by the issuance of the injunction. Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir.1994). A district court is required to make specific findings concerning each of the four factors, unless fewer factors are dispositive of the issues. In re DeLorean Motor Co., 755 F.2d 1223, 1228 (6th Cir.1985). A finding that the movant has not established a strong probability of success on the merits will not preclude a court from exercising its discretion to issue a preliminary injunction, where the movant has at minimum shown serious harm which decidedly outweighs any potential harm to the defendant if the injunction is issued. Gaston Drugs, Inc., v. Metropolitan Life Ins., Co., 823 F.2d 984, 988 n. 2 (6th Cir.1987). The four considerations applicable to preliminary injunction decisions are factors to be balanced, not prerequisites that must be met. Washington, 35 F.3d at 1099. No single factor will be determinative as to the appropriateness of equitable relief. In re DeLorean, 755 F.2d at 1229. The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held. University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). To obtain a preliminary injunction, the plaintiff not only has to demonstrate specific harm, but also carry the burden of persuasion, showing a likelihood of success on the merits. Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir.2000). The demonstration of a mere ‘possibility’ of success on the merits is not sufficient, and renders the test meaningless. Ohio ex rel. Celebrezze v. Nuclear Regulatory Comm’n, 812 F.2d 288, 290 (6th Cir.1987). The movant must, at a minimum, show “serious questions going to the merits and irreparable harm which decidedly outweighs any potential harm to the defendants if an injunction is issued.” In re DeLorean, 755 F.2d at 1228. III. ANALYSIS A. Probability of Success on the Merits Plaintiffs’ legal theories in this cause of action are, first, that Defendants’ actions have created a disparate impact based upon race or ethnicity in violation of 34 C.F.R. 100.3(2)-(3). The United States Department of Education has the right pursuant to 42 U.S.C. § 602 to implement Title VI of the Civil Rights Act of 1964. South Camden Citizens in Action v. New Jersey Dept. of Environmental Protection, 145 F.Supp.2d 505 (2001). Such rights are enforceable under 42 U.S.C. § 1983. Secondly, Plaintiffs contend that Defendants’ actions have violated Plaintiffs’ Fifth and Fourteenth Amendment rights to be free from unreasonable interference with their liberty interest in bodily integrity. Doe v. Claiborne County, 103 F.3d 495, 506 (6th Cir.1996); Wilson v. Webb, 869 F.Supp. 496, 497 (W.D.Ky.1994). Defendants contend that Plaintiffs are unable to satisfy the prerequisites of a preliminary injunction. Defendants contend that Plaintiffs cannot succeed on the merits for three reasons: (1) federal funding was not utilized in the site preparation or construction of the new Beard School; (2) Section 1983 does not create a right of enforcement for Title VI; and (3) Plaintiff cannot identify the favor and disfavored groups essential to a claim of discriminatory treatment. 1. 42 U.S.C. § 1983 In order to sustain a Section 1983 claim, a plaintiff must meet two basic requirements: (1) the conduct complained of must have been committed by a person acting under color of state law; and (2) the conduct must have deprived the plaintiff of a right, privilege or immunity secured by the Constitution or the laws of the United States. Wilder v. Virginia Hospital Assoc., 496 U.S. 498, 501-08, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990). a. Persons Acting Under Color of State Law Plaintiffs contend that Defendants are state-created entities or employees of a state-created entity. Plaintiffs state that the basis of the Complaint is the official actions of employees who made decisions on behalf of the Detroit Public Schools. Municipalities and local officials sued in their official capacities are considered “persons” for § 1983 purposes. Monell v. Dep’t of Social Servs. of the City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). However, a municipality cannot be held liable under a respondeat superior theory. A municipality can only be held responsible under Section 1983 when execution of a municipality’s policy or custom inflicts the alleged injury. Id. at 690-95, 98 S.Ct. 2018. Plaintiffs named the Detroit Public Schools, the Board of Education of the City of Detroit and Dr. Kenneth Burnley, both in his official and individual capacities, as Defendants. A school district that has a pupil membership of at least 100,000 is a first class school district. M.C.L. 380.402. There is no dispute that the School District of the City of Detroit has a membership of at least 100,000. All powers and duties of the school board of a first class school district and of its officers are subject to Part 5a. M.C.L. 380.449. Part 5A, P.A.1999, No. 10, became effective on March 26, 1999. Prior to the enactment of the School Reform Board statute in 1999, the Board of Education of the School District of the City of Detroit could be sued. M.C.L. 380.401(3). M.C.L. 380.373(1) suspended the powers and duties of the elected school board until such time a new school board is elected, if a new school board is elected under M.C.L. 380.375. Once a chief executive officer has been appointed, all provisions applicable to the old elected school board apply to the chief executive officer. M.C.L. 380.373(4). “[T]he chief executive officer accedes to all the rights, duties, and obligations of the elected school board.” M.C.L. 380.373(4). The chief executive officer has the right to prosecute and defend litigation. M.C.L. 380.373(4)(c). The school reform board is subject to the provisions of the Act only “until the appointment of a chief executive officer.” M.C.L. 380.373(3). There is no dispute that a new school reform board has been appointed or that Dr. Kenneth Burnley has been appointed as the Chief Executive Officer of the School District of the City of Detroit. Based on M.C.L. 380.373, the Chief Executive Officer is the suable entity in this action. The entities “Detroit Public Schools” and the “Board of Education of the City of Detroit” are not legal entities against which a suit can be directed. See Pierzynowski v. Police Dep’t of the City of Detroit, 941 F.Supp. 633, 637 n. 4 (E.D.Mich.1996); Haverstick Enterprises v. Financial Fed. Credit, 803 F.Supp. 1251, 1256 (E.D.Mich.1992); Alexander v. Beale Street Blues Co., Inc., 108 F.Supp.2d 934, 947 (W.D.Tenn.1999); and Fed.R.Civ.P. 17(a)(every action must be prosecuted against the real party in interest). Plaintiffs have not cited any provisions that designate either the Detroit Public Schools or the Board of Education of the City of Detroit as a legal body corporate capable of being sued. Defendants contend that Defendant Burnley cannot be liable under 42 U.S.C. § 1983. Defendants assert that there have been no allegations of direct involvement by Dr. Burnley in the events that establish Plaintiffs’ claim. There have been no allegations that Dr. Burnley authorized any custom or policy, or violated any environmental law or regulation. Plaintiffs reply that a single decision by a municipal officer can constitute a policy when that official has the final authority to establish municipal policy with respect to the action ordered, and the official has made a deliberate choice to follow a course of action from among various alternatives. O'Brien v. City of Grand Rapids, 23 F.3d 990, 1000 (6th Cir.1994). Plaintiffs state that Dr. Burnley’s decision to build an elementary school on a known contaminated site while providing minimal remediation subjects him to liability. Dr. Burnley, in his official capacity, when sued for injunctive relief would be a person under Section 1983 because official capacity actions for prospective relief are not treated as actions against the state. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 n. 10, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). As noted above, M.C.L.A. § 380.373(4) provides that Dr. Kenneth Burnley is the decision maker and suable entity on behalf of the school district. b. Violation of a Federal Right i. Right of Action Under Title VI In order to enforce Title VI pursuant to Section 1983, Plaintiffs must satisfy a three prong test: (1) whether the provision that is sought to be enforced was intended to benefit the plaintiffs; (2) whether the right asserted is not so “vague and amorphous” that its enforcement would strain judicial competence; and (3) whether the provision at issue unambiguously imposes a binding obligation to the State. Blessing v. Freestone, 520 U.S. 329, 340-41, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997). Plaintiffs contend that South Camden is dispositive in this case. The South Camden plaintiffs sought a preliminary injunction to prohibit the issuance of an air emission permit to locate a cement manufacturing facility in South Camden. The district court issued a preliminary injunction stating that the facility would likely cause a significant adverse impact on the minority community in violation of Title VI. Although the facility met the National Ambient Air Quality Standards, the court barred the issuance of the permit until a full cumulative impact analysis was conducted. Plaintiffs assert that the United States Supreme Court in Alexander v. Sandoval, 531 U.S. 1049, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) held that Section 1983 was available to enforce violations of Title VI regulations. Plaintiffs state that the Sixth Circuit has held that regulations have the force of law which may create rights enforceable under Section 1983. Loschiavo v. City of Dearborn, 33 F.3d 548, 552 (6th Cir.1994); Wood v. Tompkins, 33 F.3d 600 (6th Cir.1994); Levin v. Childers, 101 F.3d 44, 47 (6th Cir.1996). Defendants contend that 42 U.S.C. § 1983 does not create substantive federal rights. Defendants contend that Plaintiffs must assert a violation of a federal right. Blessing, 520 U.S. at 340, 117 S.Ct. 1353. Defendants rely on Alexander for the proposition that “[njeither as originally enacted nor as later amended does Title VI display an intent to create a freestanding private right of action to enforce regulations promulgated under § 601.” Defendants distinguish South Camden upon which Plaintiffs rely. Defendants state that the court in South Camden concludes that the Section 602 regulations are enforceable under Section 1983 because the court assumed a federal right and ignored the dispositive distinction between Sections 601 and 602. Defendants note that the Sandoval Court stated: We therefore begin (and find that we can end) our search for Congress’s intent with the text and structure of Title VI. Section 602 authorizes federal agencies “to effectuate the provisions of [§ 601] ... by issuing rules, regulations, or orders of general applicability.” 42 U.S.C. § 2000d-1. It is immediately clear that the “rights-creating” language so critical to the Court’s analysis in Cannon of § 601, see 441 U.S. at 690 n. 13, 99 S.Ct. 1946, is completely absent from § 602. Whereas § 601 decrees that “no person ... shall ... be subjected to discrimination,” 42 U.S.C. § 2000d, the text of § 602 provides that “each Federal department and agency ... is authorized and directed to effectuate the provisions of [§ 601],” 42 U.S.C. § 2000d-1. Far from displaying congressional intent to create new rights § 602 limits agencies to “effectuating” rights already created by § 601. And the focus of § 602 is twice removed from the individuals who will ultimately benefit from Title Vi’s protection. Statutes that focus on the person regulated rather than the individuals protected create “no implication of an intent to confer rights on a particular class of persons.” California v. Sierra Club, 451 U.S. 287, 294, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981). Section 602 is yet a step further removed: it focuses neither on the individuals protected nor even on the funding recipients being regulated, but on the agencies that will do the regulating. Defendants contend that whether there is an implied cause of action under the statute is a different inquiry from whether the statute is enforceable under Section 1983. Defendants contend that the implied right of action is a four element inquiry, while enforceability under Section 1983 is a two stage analysis with a four-element first stage described in Blessing, 520 U.S. at 340, 117 S.Ct. 1353. Defendants contend that the absence of rights creating language in Section 602 precludes establishing the first element of Blessing. Plaintiffs contend the Title VI regulations were intended to benefit Plaintiffs in light of the fact that the regulations were enacted to protect and benefit members of racial, ethnic and national origin minorities. In support of their contention, Plaintiffs cite 34 C.F.R. § 100.1: [n]o person in the United States shall; on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving Federal financial assistance from the Department of Education. Plaintiffs, secondly, contend that the regulations are sufficiently defined to allow for judicial review citing 34 C.F.R. § 100.3(b)(2)-(3): (2) A recipient, in determining the types of services, financial aid, or other benefits, or facilities which will be provided under any such program ... may not ... utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin (3) In determining the site or location of a facility, an application or recipient may not make selections with the effect of excluding individuals from, denying them the benefits of, or subjecting them to discrimination under any programs to which this regulation applies, on the ground of race, color, or national origin ... Plaintiffs contend 34 C.F.R. § 100.3(b)(2)-(3) prohibits programs which receive federal funds from operating in a manner which have a disparate impact on racial, ethnic or national origin minorities. Elston v. Talladega County Bd. of Ed., 997 F.2d 1394, 1407, n. 14 (11th Cir.1993); United States v. LULAC, 793 F.2d 636, 648 n. 35 (5th Cir.1986); City of Chicago v. Lindley, 66 F.3d 819, 828-29 n. 12 (7th Cir.1995); Larry P v. Riles, 793 F.2d 969, 982 n. 9 (9th Cir.1984). Based upon the long history of the prohibitions against disparate impact, Plaintiffs contend that the above regulations cannot be considered so “vague and amorphous” as to strain judicial competence. Plaintiffs claim that Defendants misconstrue and misinterpret the substantive law governing Plaintiffs’ claims. Plaintiffs state that the regulations to Section 602 of Title VI create federal rights which are enforceable under 42 U.S.C. § 1983. Defendants are correct in their contention that there is no private right of action to enforce disparate impact regulations promulgated under Title VI pursuant to Section 602. Alexander, 121 S.Ct. at 1515-23. 42 U.S.C. § 2000d, Public Act 88-352, Title VI, § 601 states: No person in the United States shall, on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal Financial Assistance. 42 U.S.C. § 2000d, Title VI, § 602 provides that: Each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity, by way of grant, loan or contract other than a contract of insurance or guaranty, is authorized and directed to effectuate the provisions of section 2000d of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken. Section 601 bans intentional discrimination and provides persons with a private right of action to enforce that statute. Alexander, 121 S.Ct. at 1523. In contrast, Section 602 does not include a private right of action to enforce disparate-impact regulations promulgated under Title VI. Id. The Supreme Court stated that “[statutes that focus on the person regulated rather than the individuals protected create ‘no implication of an intent to confer rights on a particular class of person”’ explaining that Section 602 neither focuses on the individuals to be protected nor on the funding recipients being regulated, but on the agencies that will do the regulating. Id. at 1521 citing California v. Sierra Club, 451 U.S. 287, 294, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981). While the United States Supreme Court proscribed a private right of action under Section 601, it did not do so under 42 U.S.C. § 1983. When determining whether a federal statute creates an individual right of action under Section 1983, a court must utilize the three part analysis articulated in Blessing, 520 U.S. at 340—41, 117 S.Ct. 1353 (1997) which states: (a) Congress must have intended that the provision in question benefit the plaintiff; (b) the plaintiff must demonstrate that the right assertedly protected by the statute is not so “vague and amorphous” that its enforcement would strain judicial competence; and (c) the statute must unambiguously impose a binding obligation on the States. Plaintiffs claim that Section 602 was intended to protect and benefit members of racial, ethnic and national origin minorities citing Cannon v. University of Chicago, 441 U.S. 677, 693-94, 704, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). That is, Congress must have intended by Section 602 to create a federal right in favor of plaintiff. Section 602 requires all federal agencies administering any grant-in-aid program to see to it that there is no racial discrimination by any school or other recipient of federal financial aid. United States v. Jefferson County Board of Education, 372 F.2d 836 (5th Cir.1966). Plaintiffs contend that there is a binding obligation on states to ensure that federally funded programs do not create an adverse disparate impact on the basis of race. Plaintiffs contend that the Department of Education statutes are phrased in mandatory terms such as “shall” and “may not”. There is a question, however, with respect to whether agency regulations such as Section 602 creates rights within the meaning of Section 1983. There is a split among the circuits regarding whether agency regulations alone create a federal right. The United States Supreme Court, however, stated in Wright v. City of Roanoke, 479 U.S. 418, 432, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987), that the Department of Housing and Urban Development (“HUD”) regulations created rights enforceable under Section 1983 because they conferred benefits on tenants, which were sufficiently specific to qualify as enforceable rights. The Sixth Circuit citing Wright stated that “federal regulations have the force of law, [and] ... likewise may create enforceable rights.” Loschiavo v. City of Dearborn, 33 F.3d 548, 554 (6th Cir.1994). In Chrysler Corp. v. Brown, 441 U.S. 281, 301-303, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979), the Supreme Court stated that agency regulations have the force and effect of law if they: (1) are substantive, meaning they function as a “legislative type rule” which affects individual rights and obligations; (2) Congress granted the agency which issues the regulations the authority to promulgate such regulations; and (3) the regulations were promulgated in accordance with any procedural requirements imposed by Congress. Section 602 regulations have the full force and effect of law in that they were issued under a congressional directive to regulate by way of grant, loan or contract, other than a contract of insurance or guaranty, the use of federal funds. Congress gave the agencies the authority to issue rules and regulations consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken. Pursuant to the Chrysler inquiry, Section 602 has the full force and effect of law. As stated by the Supreme Court in Wilder, there can be little doubt that Title VI of the Civil Rights Act, and implementing regulations promulgated pursuant to Section 602 of the Act, were intended to benefit persons of color such as Plaintiffs who are Hispanic and African American. In Cannon, the Supreme Court stated that Congress’ objectives were to avoid the use of federal resources to support discriminatory practices and to provide individual citizens effective protection against discriminatory practices. The Title VI provisions are not vague and amorphous but clearly state that discrimination based upon race, color or national origin should not be the basis for exclusion or the denial of benefits of any program or activity receiving Federal Financial Assistance. The statute must unambiguously impose a binding obligation on the states which means the provision must be phrased in mandatory versus precatory terms, Title VI states “ [n]o person in the United States shall, on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal Financial Assistance.” There is no doubt that Title VI creates a federal right of action pursuant to 42 U.S.C. § 1983 where Plaintiffs, who are African American and Hispanic, were the intended beneficiaries. The right not to be subjected to discrimination based upon race, color or national origin is not vague and Congress has imposed a binding obligation on the states of mandatory compliance. ii. Federal Funding Plaintiffs contend that the school district is liable “for action taken or directed by the [school district] or its authorized decision maker itself [that] violates federal law....” Board of County Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). Plaintiffs state that the allegations in their Complaint are sufficient to show that Defendants acted with deliberate indifference. Plaintiffs contend that Defendants’ decision to open the new Beard Elementary School despite the uncertainties regarding whether there are risks of harm to minor Plaintiffs, the decision to act despite limited information, the refusal to involve parents in the decision making process in a meaningful way and the failure to provide information in Spanish to Spanish speaking parents exhibits a deliberate indifference to the rights of minor Plaintiffs. Plaintiffs contend that they will likely be able to show that the decisions of Defendants violate Title VI of the Civil Rights Act of 1964. Plaintiffs contend that they can show that Defendants receive federal funding and that the decision to build the new Beard Elementary School on a contaminated site, given the demographics, has a disparate impact based upon race. Defendants contend that in order to maintain a private right of action under Title VI, Plaintiffs must show that they were victimized by a “program or activity” that received federal funds. Buchanan v. City of Bolivar Tennessee, 99 F.3d 1352, 1356 (6th Cir.1996). Defendants claim that although they receive federal funds, no federal funds were used in the site preparation and construction of the new Beard School. Defendants state that the school construction was financed by a Detroit Public School Bond issue. The site preparation and environmental remediation was funded by the same bond issue and by grants from the State of Michigan and Wayne County. Robert A. Francis, Executive Director of Capital Improvements for Detroit Public Schools, attests that the funds for the new Beard school came from a $1.5 billion bond fund approved by the citizens of Detroit in 1994. See Affidavit of Robert Francis, ¶ 4. An additional $350,000 was provided by the State of Michigan for the construction of the engineered cap. Id. Plaintiffs reply that Defendants have erroneously concluded, as stated in Farm Labor Organizing Committee v. Ohio State Highway Patrol, 95 F.Supp.2d 723 (N.D.Ohio 2000), that “program” should be defined narrowly. Plaintiffs assert that pursuant to the 1988 amendment of Title VI, the definition of “program” is construed more broadly. The Court in Farm Labor stated that a plaintiff must prove that he was victimized by a “program or activity” that received federal funds. Farm Labor, 95 F.Supp.2d at 742 citing Buchanan, 99 F.3d at 1356. The terms “program or activity” and “program” mean all of the operations of a local educational agency of the Elementary and Secondary Education Act of 1965, a system of vocational education, or other school system any part of which is extended Federal financial assistance. 42 U.S.C. § 2000d-4(2)(B). Under this definition, an entity falls under Title VI if it is an “operation of’ or “part” of an entity described in § 2000d-4a and any part of that entity receives federal assistance. Graham v. Tennessee Secondary School Athletic Assoc., No. 1:95-cv-044, 1995 WL 115890 (E.D.Tenn. Feb. 20, 1995) (unpublished opinion) (citing Hodges by Hodges v. Public Bldg. Comm’n of Chicago, 864 F.Supp. 1493, 1507 (N.D.Ill.1994)). The Sixth Circuit in Horner v. Kentucky H.S. Athletic Assoc., 43 F.3d 265 (1994) found in reference to a school’s receipt of federal funds that “Congress has made its intent to extend the scope of Title IX’s equal opportunity obligations to the furthest reaches of an institution’s programs.” The Horner Court refused to “defeat that purpose by recognizing artificial distinctions in the structure or operation of an institution.” “Program or activity” and “program” is defined in precisely the same manner in Title IX as in Title VI. Defendant DPS, therefore, is an entity which receives federal funds and is subject to the reach of Title VI. iii. Disparate Impact based on Race, Color and National Origin Plaintiffs contend that their attendance at the new Beard Elementary School would have a disproportionately adverse impact on African American and Hispanic children. The reassignment of the old Beard Elementary and the McMillan students to the new Beard would disproportionately and adversely impact students based on race, color and national origin. African American children make up thirteen (18) percent of the old Beard and fifty-eight (58) percent at McMillan. Hispanic children make up sixty-one (61) percent of the old Beard population and twenty-one (21) percent at McMillan. Plaintiffs contend Title VI was passed with the goal of limiting and/or eliminating harms such as the exposure of the potential new Beard Elementary students to toxins such as those present on the Site. Plaintiffs state that in order to establish a prima facie case of adverse impact they are required to show “a causal connection between a facially neutral policy and a disproportionate and adverse impact on minorities.” New York City Environmental Justice Alliance v. Giuliani, 214 F.3d 65 (2d Cir.2000). Plaintiffs assert that the facially neutral act is the construction of the new Beard Elementary School and the adverse impact is the risk of exposure to the African American and Hispanic students who will be enrolled. Plaintiffs state that the attendance at the new Beard Elementary School places an unreasonably high risk of exposure to contaminants on minority students in violation of the Department of Education regulation pursuant to Title VI. Plaintiffs state that if a comparison is to be made between the students at the new Beard Elementary school and other groups, the comparison should be made to the state-wide school population. It is Plaintiffs’ position that because the Detroit Public Schools became controlled by the Governor of the State of Michigan in the 1999 School Reform, it is appropriate to compare the demographics of the new Beard students with other students in the state of Michigan. A comparison with the students of the Detroit Public Schools would be inappropriate because the group is overwhelmingly minority. Therefore, Plaintiffs contend that the comparison should be made with state-wide students or at the very least with students in the tri-county area. In the tri-county areas (Wayne, Macomb and Oakland), African Americans make up twenty-four (24) percent of the population and Hispanic comprise two (2) percent. Even with the tricounty comparison, Plaintiffs contend that the impact of attending school on a contaminated site falls disproportionately on minority students. Plaintiffs also compare the new Beard Elementary students to the population in the Detroit Public School district and find that even with such a comparison the proposed students of the new Beard school would be adversely impacted. It is alleged that both Beard and McMillan Elementary Schools have a higher population of Hispanics than other Detroit Public Schools. It is Plaintiffs’ contention that given the Defendants’ failure to fully characterize the Site, the potential inadequacies of Defendants’ remediation, the potential inadequacies of the remediation plan, the failure to monitor soil and air on a continuous basis and the inability to police contractors and employees, creates an unreasonably high risk of significant danger to the students attending the new Beard Elementary School. Defendants contend that Plaintiffs cannot make a showing of disparate impact in this case. Defendants state that there are not identifiable favored and disfavored groups in that Plaintiffs are both minority and non-minority children. The children are comprised of nine (9) Hispanics, one (1) Afincan America and ten (10) Caucasians. In order to have a disparate impact claim, Defendants state that there must be a decision that differentiates or discriminates between two groups or persons. Defendants contend that the decision regarding the location of the new Beard Elementary School would have impacted the same two groups or persons regardless of the site selected. Defendants further state that Plaintiffs must establish a causal connection between a facially neutral policy and a disproportionate impact on minorities. New York City Environmental Justice Alliance, 214 F.3d at 69. Defendants state that “when the disparate impact model is removed from the cases involving clearly delineated policies of employers, it becomes so vague as to be inapplicable.” Spaulding v. University of Washington, 740 F.2d 686, 708 (9th Cir.1984). In the case at bar, Defendants contend that where there is no allegation by Plaintiffs that there is a policy of discrimination by the Defendants with regards to the new Beard Elementary School, the disparate impact model is removed. Defendants state that this is particularly true where Defendants have allegedly complied with all applicable state and federal requirements. Defendants contend that they have exercised no judgment that can be viewed as a pretext for discrimination. Defendants claim that they made a business decision to build a new, state-of-the-art neighborhood school on the best available site not in an effort to discriminate. Defendants state that there is no causal connection between the decision of the Defendants regarding the location of the new school and any alleged discriminatory impact. It is Defendants’ position that much of Plaintiffs’ proofs consist of broad conclusory statements rather than actual evidence. Defendants state that Plaintiffs’ assertions that because the Beard population consists of minority students, Defendants must have engaged in discrimination in deciding on the Site is not evidence of discrimination. Defendants contend that Plaintiffs’ attempt to compare students outside of the Detroit Public Schools is inappropriate because Defendants have no control over decisions in other school districts. Defendants also state that they did not have an option to locate the school in another area in Detroit or outside of Detroit. Defendants argue, that because the new Beard was built to accommodate the students in Southwest Detroit Beard area, the school could not have been built in any other neighborhood or community in the District or Southeastern Michigan. It is Defendants’ position that the location of an elementary school is “not of the sort that Judges are well equipped to resolve intelligently or that we should lightly assume has been given to us to resolve by Title VII or the Constitution.” American Fed’n of State, County and Mun. Employees v. Washington, 770 F.2d 1401, 1402 (9th Cir.1985). Defendants claim that the fact that the Detroit Public Schools already owned the land on which the school is located is a legitimate nondiscriminatory reason for Defendants’ actions. Defendants state that clean up was already underway when the decision was made to build the new school. Defendants contend that the Site is in the middle of one of the fastest growing neighborhoods in Detroit and they chose the best site available for the new school. Defendants point out that there have been no alternative sites proposed by Plaintiffs. Plaintiffs reply that Defendants’ analysis relies on disparate treatment instead of disparate impact. Plaintiffs contend that intent is not the issue in a disparate impact case but the focus is whether neutral policies or decisions adversely impact one group where there is no business necessity. Plaintiffs contend that Defendants’ decision to build Beard on a contaminated site will adversely and disproportionately impact African American and Hispanic children by exposing them to an unreasonable risk of exposure to tox