Full opinion text
OPINION DAVID S. PORTER, District Judge: This action is brought by the Board of Education of the City School District of the City of Cincinnati, Ohio, and by Robert L. Braddock, Virginia K. Griffin, Henry C. Kasson, Charles D. Lindberg, Mary T. Schloss, individually and as members of the Board of Education of the City of Cincinnati. Accordingly, these parties are hereinafter referred to collectively as the “plaintiffs” and sometimes simply as “Cincinnati.” The Cincinnati Board of Education will occasionally be referred to only as the “Board” or “CBE,” and these designations should be read as including, where appropriate, the named members thereof. The City School District also will be sometimes referred to simply as the “School District” or “CSD.” These parties appear as defendants in another case pending before this court sub nom. Bronson v. Board of Education of the City School District of the City of Cincinnati, C-1-74-205, a case which in some respects is a companion action to the suit presently at issue, and which in other respects is a sequel to a prior desegregation litigation in this Court sub nom. Deal v. Cincinnati Board of Education, 244 F.Supp. 572 (S.D.Ohio, 1965), aff’d, 369 F.2d 55 (6 Cir., 1966), cert, denied, 389 U.S. 847, 88 S.Ct. 39, 19 L.Ed.2d 114 (1967), and aff’d on other issues, 419 F.2d 1387 (6 Cir., 1969), cert, denied, 402 U.S. 962, 91 S.Ct. 1630, 29 L.Ed.2d 128 (1971). The procedural posture of the Bronson case is set out in our opinion in that case of January 30, 1973 (doc. 57), (appeal pending before the Sixth Circuit). The defendants in the case at bar are the Department of Health, Education and Welfare (Region 5) (hereinafter, the “Department” or “HEW”); Caspar Weinberger, Secretary, Department of Health, Education and Welfare (herein, the “Secretary”); Virginia Trotter, Assistant Secretary, Office of Education (the “Assistant Secretary”); Terrell Bell, Commissioner of Education (the “Commissioner”); and Mary Jane Calais, Regional Commissioner, Office of Education (the “Regional Commissioner” or “Ms. Calais”). These parties are designated collectively as the “Defendants” or “HEW”. The Office of Education is sometimes designated as “OE”, and the Office of Civil Rights as “OCR”. As will be more fully developed herein, the Cincinnati City School District applied in December, 1973, to the Department for an award of funds under the Emergency School Aid Act (ESAA), 20 U.S.C. § 1601 et seq. (1972), re-enacted and amended by P.L. 93-380, §§ 641-646 (August 21, 1974). On April 25, 1974, the School District was determined by the Assistant Secretary to be ineligible for such funding (four grounds of ineligibility were given), whereupon this action was initiated to secure review of that determination, declaratory and injunctive relief, and an award of funds. The funds sought have been held in escrow pursuant to an agreed order approved by this Court issued June 21, 1974 (doc. 5), and amended June 27, 1975 (doc. 6). The case is submitted on cross-motions for summary judgment pursuant to Rule 56, Fed.R.C.P. The parties have submitted lengthy memoranda with affidavits and documents in support of their motions and reply memoranda, in addition to the materials submitted in connection with the request of plaintiffs for a preliminary injunction. The Court has carefully considered the submissions of the parties and has engaged in extensive research of its own. The parties have concentrated their fire on certain issues. The Court has endeavored to consider all the issues raised by the pleadings and the evidence. Additionally, the Court has addressed issues proper for it to consider sua, sponte, e. g., jurisdiction. Specifically, we considered the applicability of the Administrative Procedure Act as well as the Declaratory Judgment Act as a form of remedy, infra at p. 210. If any argument made by the parties is not discussed herein it is because it was found without merit or not resolvable in view of the resolution of other issues herein upon which they are dependent. I. PRELIMINARY MATTERS A. JURISDICTION — FEDERAL QUESTION The Court has jurisdiction over this suit, which challenges HEW’s determination that plaintiff is ineligible for ESAA funds, under its federal question jurisdiction. 28 U.S.C. § 1331(a). Adams v. Richardson, 351 F.Supp. 636, 640 (D.D.C., 1972), injunction entered, 356 F.Supp. 92 (D.D.C., 1973), aff’d en banc, 156 U.S.App.D.C. 267, 480 F.2d 1159 (1973); cf. Kelley v. Metropolitan Co. Bd. of Ed., Tenn., 372 F.Supp. 528, 537-538 (M.D.Tenn., Feb. 23, 1973), injunction entered, 372 F.Supp. 540 (M. D.Tenn., Dec. 19, 1973). Important questions arising under the Constitution and laws of the United States are involved, and substantially more than $10,000 exclusive of interest and costs is claimed. In view of our determination that jurisdiction exists under § 1331(a), it is unnecessary to decide whether 28 U.S.C. § 1343(4) would provide an alternative, independent basis for jurisdiction in this action. But compare Kelley, supra, at 372 F.Supp. 528, 537, with Adams v. Richardson, supra, 351 F.Supp. 636, 640 (conclusion of law Para. 2). Nor is it necessary to consider the appropriateness of assuming jurisdiction over this action under 28 U.S.C. § 1361, a basis not suggested by the parties. But see Kelley, supra, at 538-539, 540, 543; and Adams v. Richardson, supra, at 640. Plaintiffs seek relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202. For reasons that will appear, we also treat this case as one brought under the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. Of couse, the Court recognizes that neither the Declaratory Judgment Act nor the Administrative Procedure Act afford any additional basis for jurisdiction. Getty Oil Co. (Eastern Operations), Inc. v. Ruckelshaus, 467 F.2d 349 (3 Cir. 1972), cert, den., 409 U.S. 1125, 93 S.Ct. 937, 35 L.Ed.2d 256 (1973). Rather, the purpose of the Administrative Procedure Act is to define procedures and the manner of judicial review of agency action but not to confer jurisdiction. Bramblett v. Desobry, 490 F.2d 405 (6 Cir., 1974); Bruton v. Schnipke, 370 F.Supp. 1157, 1159 (E.D.Mich.1974); The Declaratory Judgment Act likewise is remedial only and not jurisdictional. See, e. g., Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-672, 70 S.Ct. 876, 879, 94 L.Ed. 1194 (1950), holding that the Declaratory Judgment Act “enlarged the range of remedies available in the federal courts but did not extend their jurisdiction.” We hold that the provisions of these Acts are applicable, and we have formed our analysis of the issues herein accordingly. Cf. Kelley, supra; Adams v. Richardson, supra. See infra, Part IV. Our analysis is also shaped by the procedural posture of the case, namely, its submission on cross-motions for summary judgment. Rule 56, Fed.R.Civ.P. B. ADMINISTRATIVE PROCEDURE ACT In holding that the Administrative Procedure Act (APA) is applicable, we take the view that the grant process under the ESAA is not “agency action . committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). Also see: Northeast Community Organization, Inc. v. Weinberger, 378 F.Supp. 1287, 1294 (D.Md.1974); Kelley, supra; Kelsey v. Weinberger, 363 F.Supp. 521 (D.D.C., 1973), rev’d on other grounds, 162 U.S.App.D.C. 159, 498 F.2d 701 (1974). The discretion vested in HEW under the ESAA is narrowly circumscribed, not only by the specific provisions of that Act, but also by the provisions of Title VI of the Civil Rights Act of 1964 (P.L. 88-352), 42 U.S.C. §§ 2000d et seq. Adams v. Richardson, supra. Also see, Kelsey v. Weinberger, supra. Indeed, we feel that a final determination of ineligibility under the ESAA program is fully analogous ' to similar action taken under the 1964 Act wherein judicial review under the APA is specifically provided for. 42 U.S.C. § 2000d-2. Accordingly, this Court’s scope of review is defined by 5 U.S.C. § 706. Cf. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L. Ed.2d 136 (1971). In our judgment, this case is one in which neither review for substantial evidence nor trial de novo is appropriate. Overton Park, at 414, 91 S.Ct. 814. Rather, in this case the requisite review is that mandated by the Court in Overton Park, supra, except that in this instance the appropriate officials are the Assistant Secretary of HEW, the Commissioner of Education, and the Regional Commissioner of the Office of Education (OE), Region 5. Specifically, under the dictates of § 706 and Overton Park: “The court is first required to decide whether the Secretary acted within the scope of his authority. Schilling v. Rogers, 363 U.S. 666, 676-677 [80 S.Ct. 1288, 1295-1296, 4 L.Ed.2d 1478] (1960). This determination naturally begins with a delineation of the scope of the Secretary’s authority and discretion. L. Jaffe, Judicial Control of Administrative Action 359 (1965). As has been shown, Congress has specified only a small range of choices that the Secretary can make. Also involved in this initial inquiry is a determination of whether on the facts the Secretary’s decision can reasonably be said to be within that range. * * * * * * “Scrutiny of the facts does not end, however, with the determination that the Secretary has acted within the scope of his statutory authority. Section 706(2) (A) requires a finding that the actual choice made was not ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ 5 U.S.C. § 706(2) (A) (1964 ed., Supp. V). To make this finding the court must consider whether the decision was based on a consideration of the relevant .factors and whether there has been a clear error of judgment. * * * * * * Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” “The final inquiry is whether the Secretary’s action followed the necessary procedural requirements.” These three basic inquiries are taken up below, although not in the precise order as listed above, in connection with the actions of the Assistant Secretary (OE). For the present, we note that § 706 requires that “(i)n making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party . . .” The relevant record in this case is that compiled in the department through April 25, 1974, or at the latest, through June 27, 1974. Findings by OCR or the OE subsequent to the April 25 determinations of ineligibility and information gathered by these offices after that date are not therefore part of the “record” subject to examination in our review of those determinations. For this reason, in making its review the Court has disregarded the affidavit of Ortha O. Barr, Jr., and the “Factual Summary” incorporated therein, which were filed pursuant to an order of this Court on December 19, 1974 (Doc. 16), the Court at that time reserving judgment on the relevancy of these submissions. The danger which we wish to avoid is the possibility that this affidavit and its attachments present “merely ‘post hoc’ rationalizations, Burlington Truck Lines v. United States, 371 U.S. 156, 168-169 [83 S.Ct. 239, 9 L.Ed.2d 207] (1962), which have traditionally been found to be an inadequate basis for review. Burlington Truck Lines v. United States, supra-, SEC v. Chenery Corp., 318 U.S. 80, 87 [63 S.Ct. 454, 459, 87 L.Ed. 626] (1943).” Overton Park, at 419, 91 S.Ct. at 825. However, these submissions have been considered in connection with our exploration of the scope of the controversy which may persist between the parties in view of our resolution of the issues herein. See infra, Part VI. C. OTHER PROCEDURAL ISSUES Defendants raise certain other preliminary or procedural matters which they feel should operate to preclude this Court from reaching the merits of this case. Thus, defendants have argued that plaintiffs, by not availing themselves of the Act’s waiver of ineligibility provisions, see infra, Part III(c), have failed to exhaust available avenues of administrative recourse. Defendants also argue that the funds held in escrow by order of this Court pending the outcome of this litigation have been provisionally allocated to another Local Educational Agency (LEA), and that this suit is therefore “moot.” This latter argument seems to assume that even if Cincinnati is successful in this litigation, the funds sought by plaintiffs would be awarded to that other LEA. The short answer to defendants’ mootness argument is that if Cincinnati were to prevail on the merits of the case, the matter would be remanded for a determination of the relative merits of the CSD and any other appropriate LEA plan. See Kelley v. Metropolitan Co. Bd. of Ed., Tenn., 372 F.Supp. 540, 560-561 (M.D.Tenn.1973). We are likewise of the view that “exhaustion” is not an appropriate analysis: The proper concern in this case is with the compliance or non-compliance of the parties with the procedural and substantive requirements of the Act— whether viewed as raising questions of “mootness,” “exhaustion,” “notice,” or “failure to establish eligibility.” Each of these matters is dealt with below in greater detail. But the bottom line is this: If Cincinnati failed to comply with any applicable provision of the Act or any valid administrative regulation, its case must fail. HEW also will be held to this standard. II. REQUIREMENT THAT LOCAL EDUCATIONAL AGENCY ESTABLISH ITS ELIGIBILITY AND ENTITLEMENT FOR ESAA GRANT: A. Burden on Local Educational Agency To Establish Its Eligibility The grant process established by the Emergency School Aid Act is an executive function, within the jurisdiction of the Dept. HEW. Within HEW, the program is administered by the Assistant Secretary for Education, a defendant herein. Applications for ESAA funds are processed by the staff of the Office of Education, and decisions pertinent to such applications are within the discretion of the Assistant Secretary and her staff, subject to the statutory provisions of the Act itself and the administrative guidelines adopted by the Office of Education pursuant to the Act. 45 CFR 185.01 et seq., 38 FR 3452 (Feb. 6, 1973). Essentially two general decisions are made by the Assistant Secretary and her staff in regards to each application: First a determination of eligibility or ineligibility is required. In this regard, only applications which demonstrate compliance with the Act, particularly with 20 U.S.C. § 1605(a), (c), (d) and (1), and with the regulations which implement the Act, 45 CFR 185.01 et seq., and specifically with § 185.03 and §§ 185.41-45, are eligible for funding. The burden is on the applicant to make an appropriate application and to demonstrate its compliance by supplying “such information as the Assistant Secretary shall require by regulation.” § 1609(a). The Act provides for “basic grants” as well as for a variety of special project grants, e. g. bilingual projects. The Cincinnati School District applied only for the basic grant, thus it was required to demonstrate eligibility only with respect to the general requirements of § 1605 {supra) along with those of § 1609(a) and (b) as implemented by the “basic grant” administrative regulations set out at 45 CFR §§ 185.11-14. The second general area of decision-making committed to the Office of Education is the difficult process of funding. The Act appropriated one billion dollars for the fiscal year ending June 30, 1974, but reserved 5% of this amount for special metropolitan area projects (under § 1608) and an additional 13% for various other special projects (§ 1603). The funds not subject to reservation are required by the Act to be apportioned among the states in such a manner that each state receives $75,000.-00 plus an additional amount depending on the ratio of the number of its minority students to the number of minority students as a whole in the country (subject to the limitation that each state will be apportioned at least $100,000.00). Amounts apportioned to particular states but not awarded are subject to reapportionment during the last 60 days of the fiscal year. § 1604(b) Thus, clearly the Assistant Secretary had authority under the ESAA to make these determinations of ineligibility and to deny funds to those LEA’s which were determined to be ineligible. The Assistant Secretary therefore acted within the scope of her authority although it remains to be seen whether the Assistant Secretary’s actual determinations were arbitrary and whether they were made in accordance with the procedural requirements of the Act. B. Weighted Guidelines: Funds may be used only for activities authorized by the Act. § 1606. Programs competing for funds are ranked according to criteria detailed in § 1609(c) and (d)(1), as supplemented by the weighted guidelines set out at § 185.14 for basic grants. The Assistant Secretary is required to award funds to applicants “in the order of their ranking on the basis of the criteria set out in (§ 185.14(a), (b)).” § 185.14(c)(1). However, the Assistant Secretary is not required: “. . . to approve any application which does not meet the requirements of the Act or this part, or which sets forth a program, project, or activity of such insufficient promise for achieving the purposes of the Act that its approval is not warranted.” § 185.14(c)(2) (Emphasis added) As in the case of the initial decision regarding eligibility, determinations as to funding must be made in the first instance by the Assistant Secretary and the Office of Education. Kelley v. Metropolitan Co. Bd. of Ed., Tenn., 372 F. Supp. 540, 560-561 (M.D.Tenn. Dec. 19, 1973). III. COMPLIANCE WITH THE PROCEDURAL REQUIREMENTS OF THE ACT A. Notice Requirements of 20 U.S.C. 1609(d)(2): The Act provides that the local educational agency must be notified of the grounds of ineligibility sufficiently in advance of any final determination of ineligibility to allow it an “appropriate opportunity” to supplement or modify its application. 20 U.S.C. § 1609(d)(2). The tacit assumption is that the local agency will avail itself of this opportunity in the event that it feels a final determination of ineligibility would be unjustified. An informal conference is also possible. § 185.43 (k). Informal or staff negotiations of this type are the rule, the alternative avenue of recourse being an application for waiver of ineligibility made directly to the Secretary. The waiver process authorized the Secretary to permit funding of otherwise ineligible projects provided the local agency corrects the practice which led to the ineligibility determination and offers assurances that the practice will not reoccur. § 1605(d). The waiver concept originated with the Senate version of the ESAA, and the notice requirement first appeared in the House version. Both were included in the conference bill, the two being complementary. As enacted the ESAA mandates: “(2) The Assistant Secretary shall not finally disapprove in whole or in part any application for funds submitted by a local educational agency without first notifying the local educational agency of the specific reasons for his disapproval and without affording the agency an appropriate opportunity to modify its application.” 20 U.S.C. Sec. 1609(d)(2) This provision is easily understood and requires little explication. The Conference Report notes: “The House amendment, but not the Senate amendment, required that the Assistant Secretary must notify each local educational agency whose application has been rejected of the reason for his disapproval and to afford the agency a reasonable time to modify its application. The conference substitute contains the House provision and requires the Assistant Secretary to provide an appropriate opportunity to the applicant to modify its application.” Conference Report No. 798, 1972 U.S. Code Cong. & Admn.News, pp. 2608 at 2667-2668 In the only reported decision on the subject it was held that the adoption by the Assistant Secretary of an incorrect interpretation of the legal provisions regarding eligibility, resulting in an incorrect and unlawful determination of ineligibility, had the effect of violating this provision as the local agency had not been given an “appropriate opportunity” to substantiate its position. Kelley v. Metropolitan County Bd. of Educ., Tenn., 372 F.Supp. 540, 560 (M.D.Tenn. Dec. 19,1973) In the case at hand it is abundantly clear that the Cincinnati School District was notified in advance of the final determination of ineligibility and of the grounds therefor and was given “appropriate opportunity” to substantiate or modify its application. (For purposes of the present discussion we here assume that the pertinent policies and interpretations applied in this instance by the OE were consistent with the Act and the regulations implementing it.) Indeed, Cincinnati was notified of the deficiencies in its application well in advance of the final determination of ineligibility, giving it more than a mere “reasonable time” to submit the required documentation. The undisputed facts, in so far as they appear from a close examination of the affidavits and exhibits submitted by the parties, reveal the following: Cincinnati initially began to actively consider applying for ESAA funds after an August 2, 1973 meeting in Chicago of Cincinnati and HEW officials, including Dr. Donald R. Waldrip, the Superintendent of the Cincinnati School District (CSD) and Mr. John H. Grate, Coordinator of Planning and Development of the Cincinnati Board of Education (CBE), on behalf of Cincinnati, and Ms. Mary Jane Calais, Regional Commissioner, ESAA Program, for HEW. In general, the Cincinnati officials were encouraged to believe that their program could qualify under the Act. (Doc. 11) (Plaintiff’s Motion: Affidavit of John H. Grate, para. 1(a); Affidavit of Donald R. Waldrip (Waldrip), p. 1.) Dr. Waldrip reiterated the main points expressed at the Chicago meeting in a letter to Ms. Calais dated August 6, 1973. Dr. Waldrip understood that the plans adopted by the CBE “constituted the beginning of eligibility,” and that with respect to the required component of a plan to reduce racial isolation, that the CBE had “a plan that will, with refinements, qualify us for eligibility under ESAA guidelines.” Doc. 11 (Plaintiff’s motion): Ex. 1, p. 1. Cincinnati officials continued their liason with HEW officials during the preparation of their application, which after several months of preparation was filed on December 26, 1973. Doc. 11: Grate: Para. 2-2d, pp. 1-2. (The Application appears as an attachment to Doc. 4.) As submitted, the Cincinnati application requested funding for a three-pronged approach toward achieving integration in Cincinnati public schools. The application outlined plans for (1) staff (faculty) reassignments, (2) new school construction and (3) voluntary student transfers involving “alternative and exemplary programs” as incentives. Application, Sec. II, p. 1, ff. The new construction plan is sometimes referred to as the Magnet School concept. See, e. g., Doc. 11: Ex. 2 (Grate-Coleman letter of February 14, 1974). The total funding request was $3,230,508.00. An initial “turnaround” or tentative approval was given to the application within the usual 48 hours after receipt. Doc. 13, p. 2. In this connection it is worth noting that the integration plan before the HEW contained, apparently as an integral part, the December 10, 1973, Board resolution, which is discussed at length infra at pages 225-226 et seq. Application, II — 16, 17. Also see Doc. 13, p. 2 and notes 1, 2. Subsequently, of course, the Board adopted its January 14, 1974, non-implementation resolution. Doc. 11: Ex. 21, 22. In any event, Cincinnati was notified on January 18, 1974, of the deficiencies in its application and was advised that eligibility was contingent on supplying the documentation requested. Ten areas in which deficiencies were noted were discussed in detail, and the necessary information was sought in one case “as soon as possible,” and in the other instances “no later than Tuesday, February 18, 1974.” Doc. 7, Attachment 1 (A-l), Letter of Ms. Ruth Hart Stromberg, Chief, Elementary and Secondary Education Branch, HEW, to Dr. Wald-rip, p. 6. Subsequently, on February 7, Mr. Grate and Mr. James Jacobs, Assistant Superintendent of Research and Development of the Cincinnati Public Schools, met with Ms. Beverly Coleman, Program Coordinator for Ohio (OE, Region V), and discussed the application in detail. Ms. Coleman requested additional data, particularly with reference to the anticipated effect of the Magnet Schools Component (the plan which was most directly related to reducing racial isolation in the schools). At this point only data on the effectiveness of the open enrollment plan during the summer of 1973 had been submitted. Grate, p. 7, Para. 4 The following day, February 8, Ms. Stromberg again wrote requesting Cincinnati to come forward with the information and assurances requested in her January 18 letter. This letter reiterates that without the information, “. in my opinion there is a serious question whether your District has satisfied the eligibility for assistance requirements as set forth in Section 185.11 of the Regulations.” Doc. 7: A-2. On February 14, Cincinnati followed up on the February 7 conference with Ms. Coleman by supplying some additional information (as requested by Ms. Coleman). Doc. 11, Ex. 2. About a week later, on February 22, Mr. O. O. Barr, an Equal Opportunity Specialist, attempted on behalf of the Office of Civil Rights (OCR) to obtain the needed information, explaining why that already sent was insufficient. The exact respects in which the materials on file needed supplementation were spelled out. Particular emphasis was placed on minority group isolation and the failure of the Cincinnati plan to effectively reduce this problem. Doc. 7. A-3. This item was regarded as especially important by the HEW officials in their internal analysis of the CBE application. See e. g., Doc. 7: A-7, letter of March 13, by Ms. Stromberg to Kenneth A. Mines, Director, Office for Civil Rights (OCR), Region V. In early March an “on-site” review of the Cincinnati plan was conducted by HEW. Also, about this time, specifically, March 7, 1974, Mr. Grate met with Mr. Barr (OCR) and discussed the Open Enrollment Plan. Grate Para. 7, p. 4. While the upshot of these meetings is not entirely clear, Dr. Mines, the OCR Regional Director, notified Dr. Waldrip again on March 20 that the information requested on January 18 was still not forthcoming. The letter relates that certain information (pertaining to Board actions) had been promised to the review team by March 15, but that now the promised materials were not expected until March 25 at the earliest. The letter notes that some funding decisions would be announced on March 25 and that the CBE would be well advised to supply the data requested in time for April funding. Doc. 7: A-4. Parenthetically, on March 8, Ms. Coleman had called Mr. Grate and told him that a line-by-line examination of the application along with additional data supplied on February 14 led her to believe that certain expenditures in the plan could not be funded by ESSA monies. Ms. Coleman explained each item which was not being approved. Elimination of all of these items left a balance of approximately $911,000.00 in the grant application. Doc. 11, Grate p. 3 ff. Cincinnati efforts seem to have shifted at this point from establishing eligibility to restoring the amounts cut as inappropriate. Doc. 11: Grate pp. 5, 6 and Ex. 3, 4, 5, and 6. These efforts included political pressure along with the more usual forms of persuasion. See: Doc. 11: Grate p. 5 and Ex. 3,4. On April 5, another letter was sent to Dr. Waldrip from Regional Director Mines, again detailing exactly what was needed in the way of documentation and assurances if Cincinnati was to establish its eligibility. Doc. 7: A-5. In this crucial letter, four areas in particular were spelled out — Faculty Assignment, Student Classroom Assignment, Property Transfers to Non Public Schools, and Discrimination Against Children. The faculty assignment program had been a pivotal feature of the original application and had survived the January “non-implementation” resolution, but on March 18, CBE imposed a 20% limitation on faculty transfers with the result that Cincinnati no longer was eligible for funding under HEW regulations. See: 45 CFR 185.43(b)(2). Director Mines noted that the deficiency was easily remedied, but that nonetheless, “it is necessary to take corrective action in order to establish eligibility for assistance under the Emergency School Aid Act.” A-5, p. 2. Significantly, information on each of the four matters discussed in the April 5 communication had been requested in the January 18 letter (A-l). Ultimately, Ms. Calais notified Dr. Waldrip on April 25 that the Cincinnati School District “has failed to establish its compliance with the eligibility requirements of the Emergency School Aid Act and its implementing regulations.” Doc. 11: A-6, p. 2 (Emphasis in original.) Information and assurances requested in each of the four areas outlined on April 5 had not been received. Dr. Waldrip was informed of the possibility of obtaining a waiver directly from the Secretary, and the door was also left open for resolution of these differences at the staff level. (A-6). In the interest of completeness, it should be noted that the April 25 ineligibility determination followed not only the exhaustive April 5 warning of Mr. Mines (A-5), but also another pointed warning by Ms. Coleman in her April 9 letter to Mr. Grate. Doc. 11, Ex. 6. In part, Ms. Coleman notes: “Our office is aware of additional information requested from Cincinnati Public Schools by the Office for Civil Rights to determine compliance with the District’s desegregation plan. However, this letter only refers to programmatic aspects of Cincinnati’s proposal not to eligibility/compliance aspects.” P. 3. Finally, Board President, Charles D. Lindberg, responded on May 2 to the April 25 determination of ineligibility. Doc. 11: Ex. 7. Mr. Lindberg’s letter, addressed to Ms. Calais, challenges OCR’s conclusion that the Board’s January non-implementation resolution was itself a segregative act, suggesting that OCR had not considered all the information which might be available on this issue. The letter also asserts generally Mr. Lindberg’s disagreement “with many of the matters raised in the (April 5 and April 25) letters.” (p. 1) The letter also states that the matter had been turned over to the Board’s attorneys, (p. 2) This suit was then filed on May 14. Not until June 26 or 27, 1974, were any of the documents and written assurances which led to the ineligibility determination supplied to HEW. On that date, two working days before the end of the fiscal year, and nearly six weeks after this suit had been filed, Dr. Waldrip forwarded to Mr. Barr (OCR) the requisite assurances regarding student classroom assignments and nonpublic schools along with the necessary documentation in the latter case. This letter, argues HEW, “did not request a waiver of ineligibility, but merely constituted an admission by the school district that for over sixty days they had failed to respond to the April 25 letter of ineligibility or to continue the administrative process for correcting their ineligibility.” Doc. 7: p. 15. As our discussion below indicates, we find this conclusion inescapable. But apart from the question of the Cincinnati School District’s response, it is clear that defendants complied with the procedural requirements of the Act regarding notice of ineligibility. B. Cincinnati School District’s Response We turn now to the question whether the Court can on the basis of all the undisputed facts determine whether or not the Cincinnati School District in fact furnished the data, documentation and assurances required of it under the Act and regulations as applied by HEW. We do not at this point consider whether the interpretation and practices or policies adopted by HEW in its application of the Act and regulations were as a matter of law valid and supportable. This latter question will be considered elsewhere. See infra, Part IV. The department argues that the Cincinnati School District did not supply the requisite documentation and assurances. The significance of this is that, if correct, Cincinnati has in effect waived its eligibility for 1974 funds— that is, assuming the validity of all pertinent HEW practices and policies. Plainly, the Court must conclude that in each of the four areas noted by the letter of ineligibility, Cincinnati was deficient and had not availed itself of the opportunities afforded it by the OCR staff to come forward with the needed materials. Each area will be discussed in order. 1. Plan to reduce racial isolation of minority students. It is undisputed that the CSD did not —and in fact refuses to — give assurances to HEW that a plan as effective as the December Resolution in eliminating minority group isolation would be undertaken. Without further discussion of this point it is apparent then that CSD’s claim of eligibility depends upon the correctness of its contention that the non-implementation resolution was not an unconstitutional act and is not a proper substantive basis for ineligibility under the Act. 2. Faculty assignments. With respect to the faculty assignments problem, it is plain that Cincinnati did not provide the assurances and documentation sought by HEW, but here again the problem is not merely one of technical deficiencies. As in the case of Cincinnati’s refusal to implement a desegregation plan as effective in reducing racial isolation as the December Plan, the problem here was Cincinnati’s refusal to comply with HEW’s substantive demands. Again, the problem will be stated at this point with reference only to Cincinnati's failure to comply with HEW’s requests although provided an “appropriate opportunity” to do so, and without reference to the validity of the pertinent regulations and HEW policies and practices thereunder. Following events chronologically, initially the problem of reassigning faculty members to reduce the racial identifiability of minority group schools presented no serious problem. Indeed, reassignment along these lines constituted one of the three main elements of the plan outlined in the Cincinnati application. However, the application itself apparently did not contain the requisite information for an HEW determination that the plan comported with ESAA regulations, Ms. Stromberg included in her January 18 letter to Dr. Waldrip the following request for information: “V. FACULTY ASSIGNMENTS “Please furnish a schedule containing the following information for each school: “A. Faculty “1. Total number “2. Number and percentage of minority “B. Percentage of minority students” (doc. 7: A-l, p. 4). The information sought by Ms. Stromberg, it seems went to the question of Cincinnati’s eligibility under § 1605(d)(1)(B) and the regulations thereunder. § 1605(d)(1)(B) provides: “(d)(1) No educational agency shall be eligible for assistance under this chapter if it has, after June 23, 1972— (B) had in effect any practice,, policy, or procedure which results in the disproportionate demotion or dismissal of instructional or other personnel from minority groups in conjunction with desegregation or the implementation of any plan or the conduct of any activity described in this section, or otherwise engaged in discrimination based upon race, color, or national origin in the hiring, promotion, or assignment of employees of the agency (or other personnel for whom the agency has any administrative responsibility).” [Emphasis added.] This statutory mandate is supplemented by Regulation 185.43(b)(2) which is set out below. The information and assurances sought by Ms. Stromberg in her January letter are required by § 185.13(1)(2). It is important to bear in mind that the specific ground of ineligibility charged against the Cincinnati School District is the assignment of full-time teachers in a manner which causes certain schools “to be identified as intended for students of a particular race.” (A-6, p. 3) (Emphasis in original.) Essentially, this charge reduces itself to the assignment of a disproportionate number of minority race teachers to “minority group isolated schools,” i. e., schools in which more than 50% of the students are members of minority groups. As is made clear by the memorandum contra submitted in behalf of HEW (doc. 13), this problem would have resolved itself under the December plan by eliminating “minority group isolated schools.” The problem also could have been resolved to the satisfaction of HEW by the January 14 faculty reassignment program as adopted. However, the CBE subsequently modified the January program by imposing a 20% limitation on the number of teachers which could transfer from any one school under the plan (March 18, 1974). See Affidavit of Charles D. Lindberg, p. 9-10 and Ex. 25 (1974 Amended Staff Balance Plan). It is asserted that one reason the March 18 limitation was adopted was that certain civil rights groups were opposed to aspects of the original plan. Lindberg, pp. 9-10 and Ex. 26. To reiterate, the effect of the 20% limitation was to limit transfers of staff to no more than 20% of the full-time staff at any one school during each year of the program until the desired staff balance was achieved. Director Mines’ letter of April 5 reveals that some modification had been aired during the March 7 on-site review. Mr. Mines writes: “. . . The review team discussed this matter with you on March 7, 1974, and indicated that the Office for Civil Rights would remain satisfied if additional flexibility were built into the plan so long as the proportion of minority group full-time classroom teachers at each school would be between 75 per centum and 125 per centum of the proportion of such minority group teachers which exists on the faculty as a whole” (A-6, p. 1). Within these parameters, the 20% limitation— “. . . creates a problem because it will cause three elementary and two secondary schools to remain with teaching faculties which will have proportions of minority group teachers beyond the allowable range of 75-125 percent. Thus, five of the ten predominantly minority group schools, which currently have faculty assigned in a manner which increases or confirms their racial identifiability, will continue to have such faculty” (A-6, p. 2). The letter sets out the five schools (i. e., Ach, Sawyer, Hays, Rockdale, S. Avon-dale), and states the number of teachers to be moved and the number outside of the 75-125% range. Finally, Mr. Mines warned that in each of the five schools “it is necessary to take corrective action in order to establish eligibility for assistance under the Emergency School Aid Act.” (A-5, p. 2) From the letter of ineligibility (of April 25), it appears that Dr. Waldrip spoke by telephone with a member of the HEW review team on April 17 and predicted that as a result of staff reduction only two schools would remain with a disproportionate minority faculty as of September, 1974, and that this would be eliminated by the following year. Nevertheless, HEW concluded that: “This constitutes a failure to establish compliance with the eligibility requirements of the Act and Regulations” (A-6, p. 4). (Emphasis in original.) Significantly, the 75-125% parameter is not a specific requirement of the Act or the regulations then in effect. (See note 8) However, assuming the validity of this requirement, it is undisputed that Cincinnati did not take advantage of the opportunity afforded it to bring its program into line with HEW policies and thereby establish eligibility. Thus, it appears that this issue in and of itself would have precluded an HEW determination of eligibility and therefore would also have precluded favorable action on Cincinnati’s application for ESAA funds. 3. Classroom assignments The third ground of ineligibility asserted by HEW on April 25 was a violation of § 185.43(d)(5) by virtue of the fact that in Cincinnati schools ‘‘several hundreds of students are assigned to racially isolated or racially identifiable classes for which no educational justification has been furnished.” (A-6, p. 5) (Emphasis in original.) The problem was one which had been the subject of considerable discussion among the Cincinnati and HEW officials. After the April 5 letter warning that this problem could result in ineligibility, Dr. Waldrip spoke with someone in HEW and offered his verbal assurance that the procedure used to assign students would be adjusted to eliminate this problem and that a written confirmation of this assurance would be forwarded to the Office for Civil Rights. “Therefore,” Ms. Calais’ letter of April 25 stated, “assuming that such written confirmation is received, this area will not raise any question regarding eligibility.” (A-6, p. 5) (Emphasis in original.) However, it is not disputed that this assurance was not, in fact, sent until June 26 or 27 (Doc. 11, Ex. 8). While Dr. Waldrip was still contending at that late date that there were no racially isolated or identifiable classes for which there was no educational justification, the fact is that the relevant regulation presumes that racially identifiable tracks or classes are the result of assignments on the basis of race unless educational justification is demonstrated, something which Cincinnati had not done. Thus, through at least June 26 or 27, Cincinnati had failed to establish its eligibility in this regard as well, despite ample opportunity to do so. 4. Transfers of property or services The fourth ground of ineligibility also consists of a technical deficiency in the Cincinnati application, in this ease in regard to Regulation 185.43(a) which makes ineligible any school district that has transferred property or made available services after June 23, 1970, to a nonpublic school “without a prior determination that such nonpublic school or school system is not operated on a radaily segregated basis as an alternative for children seeking to avoid attendance in desegregated or integrated public schools.” (Emphasis added.) The problem which developed- was simply the failure of the Cincinnati officials to supply the prerequisite documentation in regard to certain nonpublic schools. The problem was raised in the January 18 letter (A-l, items II, III and IV, pp. 3-4). The February 22. letter of Ms. Stromberg also dealt at length on this point, warning “there are no exceptions to the requirement established by the Regulations that any LEA including the Cincinnati Public School System, must make a nondiscrimination determination prior to transferring any property or providing any services to a nonpublic school.” (A-3, p. 2) Indeed, Ms. Stromberg reiterated this warning, stating : “In other words, there is no exception to this requirement set forth in Section 185.43(a) of the ESAA Regulations.” (Id.) Again, on March 20, Cincinnati was notified that the information and documents requested in the January 18 letter (which would include this material) had not yet been received. And, of course, Director Mines also dealt with these deficiencies in his April 5 letter at some length (A-5, pp. 3-4). This letter in fact advises Dr. Waldrip how best to secure this documentation. Dr. Waldrip responded by letter on April 9 and spoke directly with a member of the OCR team on April 17 and followed that conversation with another letter dated April 18. However, the April 25 letter of ineligibility states that determinations with respect to at least four schools still had not been received and that information regarding several others had not yet been obtained by Cincinnati (and, therefore, of course, had not been received by OCR). Finally, it is undisputed that not until the June 26/27 letter did Dr. Waldrip come forward with any of the additional determinations requested in the April 25 letter. Moreover, there is some real question whether this submission, late as it was, fully complied. Memorandum In Opposition To Plaintiffs’ Cross-motion (doc. 13, p. 17). Thus the conclusion urged by the defendant seems unavoidable: “The fact of the matter is that the Cincinnati District realized very late that it had not pursued the negotiation or administrative waiver procedure as it should have done following receipt of the April 25 notification of ineligibility and attempted hastily to rectify that failure when the fiscal year was within hours of closing.” Id. Thus, despite appropriate opportunities to do so and sufficient proper notification regarding each ground of ineligibility, the CSD failed to take advantage of these opportunities to modify or substantiate its position even though it could have done so in this case simply by supplying the required documentation and assurances. C. Exhaustion As has already been mentioned, HEW argues that the Cincinnati School District had available an additional avenue of administrative recourse in that the ESAA authorized the Secretary of HEW to waive the ineligibility of a Local Educational Agency upon application directly to the Secretary. 20 U.S.C. § 1605(d). However, this procedure — plainly—is available only if the local educational agency is willing to accept HEW’s determination of ineligibility and is willing to eliminate the particular ground (or grounds) of ineligibility and to give assurances that the offending practice (or practices) will not reoccur. § 1605(d)(2). Kelsey v. Weinberger, 162 U.S.App.D.C. 159, 498 F.2d 701 (No. 73-1960, 1974). Just as plainly an LEA is not required to exhaust the waiver procedure insofar as it seeks to challenge an HEW determination of ineligibility based on an erroneous interpretation of law and does not seek to circumvent the administrative procedures for the correction and waiver of uncontroverted ineligibilities. Perusal of the relevant provisions of the Act reinforces this view. Section 1605(d)(1) provides that “[n]o educational agency shall be eligible for assistance under [the ESAA] if it has, after June 23, 1972 — [engaged in any of four specified practices]; except that, in the ease of any local educational agency which is ineligible for assistance by reason [of having engaged in any of the four specified practices] [such LEA] may make application for a waiver ineligibility . . .” The LEA’s application for waiver must: “specify the reason for its ineligibility, contain such information and assurances as the Secretary shall require by regulation in order to insure that any practice, policy, or procedure, or other activity resulting in the ineligibility has ceased to exist or occur and include such provisions as are necessary to insure that such activities do not reoccur after the submission of the application.” § 1605(d)(1) (Emphasis added.) A waiver may be approved only by the Secretary, whose duties in this matter are nondelegable. § 1605(d)(2). Moreover, the Secretary may only approve a waiver application if he has determined that the offending practice or policy has in fact “ceased to exist.” In this respect, § 1605(d) (3) mandates that: “(3) Applications for waiver shall be granted by the Secretary upon determination that any practice, policy, procedure or other activity resulting in eligibility has ceased to exist, and that the applicant has given satisfactory assurance that the activities prohibited in this subsection will not reoccur.” This mandate however is just a specific application of the general requirement that: “(4) No application for assistance under this chapter shall be approved prior to a determination by the Secretary that the applicant is not ineligible by reason of this subjection.” § 1605(d)(4). The subsection also specifies that: “(5) All determinations pursuant to this subsection shall be carried out in accordance with criteria and investigative procedures established by regulations of the Secretary for the purpose of compliance with this subsection. (6) All determinations and waivers pursuant to this subsection shall be in writing. The Committee on Labor and Public Welfare of the Senate and the Committee on Education and Labor of the House of Representatives shall each be given notice of an intention to grant any waiver under this subsection, . . .” The cumulative effect of this language is unmistakably clear: The waiver process offers school districts ineligible for ESAA funds by virtue of specified post-June 23, 1972 practices an opportunity to establish eligibility by ceasing the practice and by providing assurances that the practice will not reappear. It provides no opportunity for an LEA to contest an allegedly erroneous determination of ineligibility., The question therefore is: To what extent does the CBE actually challenge the validity of HEW determinations of ineligibility made pursuant to § 1605(d)(1) as being erroneous? Ineligibility under this subsection follows upon a determination that an educational agency has, after June 23,1972: “(A) transferred (directly or indirectly by gift, lease, loan, sale, or other means) real or personal property to, or made any services available to, any transferee which it knew or reasonably should have known to be a nonpublic school or school system (or any organization controlling, or intending to establish, such a school or school system) without prior determination that such nonpublic school or school system (i) is not operated on a racially segregated basis as an alternative for children seeking to avoid attendance in desegregated public schools, and (ii) does not otherwise practice, or permit to be practiced, discrimination on the basis of race, color, or national origin in the operation of any school activity; (B) had in effect any practice, policy, or procedure which results in the disproportionate demotion or dismissal of instructional or other personnel from minority groups in conjunction with desegregation or the implementation of any plan or the conduct of any activity described in this section, or otherwise engaged in discrimination based upon race, color, or national origin in the hiring, promotion, or assignment of employees of the agency (or other personnel for whom the agency has any administrative responsibility) ; (C) in conjunction with desegregation or the conduct of an activity described in this section, had in effect any procedure for the assignment of children to or within classes which results in the separation of minority group from nonminority group children for a substantial portion of the school day, except that this clause does not prohibit the use of bona fide ability grouping by a local educational agency as a standard pedagogical practice; or (D) had in effect any other practice, policy, or procedure, such as limiting curricular or extracurricular activities (or participation therein by children) in order to avoid the participation of minority group children in such activities, which discriminates among children on the basis of race, color, or national origin;” § 1601(d) (1). (Emphasis added.) The Cincinnati School District was found to be ineligible on the grounds that it had engaged in each of the four proscribed practices (§§ (a) through (d)). See Doc. 7:A-6 (letter of April 25, 1974). These alleged practices will be referred to (as they are by the April 25 letter) as “transfers of property or services (relating to § (A)); “teacher assignment” (relating to § (B)); “student assignment” (relating to § (C)); and “discrimination against children” or “nonimplementation” (relating to § (D)). Most clearly, the plaintiffs challenge as invalid HEW’s determination that the Cincinnati School District had engaged in any practice or policy resulting in “discrimination against children” on the basis of race as a result of its January 14 “nonimplementation” resolution. Plaintiffs characterize this determination as based on an unsupportable legal theory that rescission of a voluntary plan of desegregation by a unitary, albeit de facto segregated, school system is in and of itself an unconstitutionally segregative act. See, e. g., Doe. 11 (pp. 9-10). Plaintiffs find support for their legal argument in Brinkman v. Gilligan, 503 F.2d 684 (6 Cir., Nos. 73-1974-75, 1974). Plaintiffs also contend that this position is contrary to § 1618 of the ESAA as well as in violation of 20 U.S.C. § 1651 (1972). See, e. g., doc. 11, p. 23. Defendants dispute this characterization of their position. See, especially, Doc. 13, pp. 7ff. Thus defendants state: “Several cases suggest that the rescission without anything more would constitute a violation of the Fourteenth Amendment, but that is not HEW’s position in this case.” Id., at p. 9, note 15. In either event, however, the waiver process did not offer a meaningful administrative mechanism for resolution of the contested validity of this determination, and therefore the Cincinnati School District cannot be said to have failed to have exhausted its administrative remedies in this respect. Likewise, plaintiffs seriously challenge the legal validity of the HEW determination of ineligibility on the ground of “teacher assignment” (§ 1605(d)(1)(B)). See, e. g., doc. 11, pp. 25-27. Inter alia, plaintiffs there contend that HEW’s position involves a “strained and unreasonably harsh construction” of the relevant regulation and that HEW's position is in violation of 20 U.S.C. § 1651. These are not contentions resolvable by the waiver process. But as to the two remaining asserted grounds of ineligibility it is unclear whether plaintiffs actually challenge the validity of any pertinent practice or policy adopted by HEW or its interpretation of any particular statute or regulation. However, they do assert that proof that the CSD was not ineligible by reason of “property transfers” or “student assignments” appears in the June 27, 1974 letter of Dr. Waldrip, doc. 11, p. 28. See also Ex. 8. But plaintiffs do not contend that this letter asked for a waiver of ineligibility nor do they suggest how long, i. e., how late into the fiscal year, HEW reasonably was required to wait for Dr. Waldrip to forward the assurances and documentation accompanying his June 27 letter. Nevertheless, we accept the allegations of the Amended Complaint as sufficiently putting in issue the validity of these two determinations, although we note that the briefs of plaintiffs do not elaborate any cogent theory as to why these determinations are invalid. Amended Complaint, paragraphs 10 and (g) (doc. 2); see infra IV C (pp. 66, 72). Accordingly, we hold that plaintiffs have sufficiently complied with the requirements of the exhaustion doctrine, so far as that doctrine is applicable to this case. IV. VALIDITY OF DETERMINATIONS OF INELIGIBILITY As indicated, on April 25, 1974, the Office of Education sent notification to the Cincinnati School District, in accordanee with 20 U.S.C. § 1609(d)(2), that the District was found to be ineligible for ESAA funds. According to HEW, the notification letter of April 25, 1974 (doc. 7:A-6) explained “each and every ground of ineligibility” and further “emphasized that a waiver of ineligibility as to each ground was available as an administrative relief for the finding.” Doc. 7, p. 3. Briefly, the four alleged grounds of ineligibility in the order in which they appear in the. letter were as follows: 1) Discrimination against children in contravention of 20 U.S.C. § 1605(d)(1)(D) and 45 CFR 185.43(d); 2) Teacher assignments in contravention of § 1605(d)(1)(B) and 45 CFR 185.43(b)(2); 3) Student assignments in contravention of § 1605(d)(1)(C) 45 CFR 185.-43(c) and 185.43(d)(5) ; and 4) Transfers of property or services in contravention of § 1605(d)(1)(A) and 45 CFR 185.43(a). We proceed now to review each of these asserted grounds of ineligibility in turn. As previously indicated, however, our scope of review is a narrow one — particularly when, as here, our inquiry is bounded by the procedural confines of cross-motions for summary judgment. We must ascertain whether, on the basis of the undisputed facts, the Secretary’s determinations of ineligibility were arbitrary, or capricious, or an abuse of discretion. See 5 U.S.C. § 706; Overton Park, supra. While we propose to examine each of the asserted grounds of ineligibility, it is apparent that if any one of the Secretary’s determinations withstands this test, the defendant is entitled to summary judgment as a matter of law in accordance with Rule 56, Fed. R.Civ.P. A. Discrimination Against Children Or Nonimplementation Before evaluating the way or ways in which the Cincinnati School District allegedly discriminated against children, we must examine the applicable statutory and regulatory provisions. Title 20 U.S.C. § 1605(d)(1)(D) provides in pertinent part: “(d)(1) No educational agency shall be eligible for assistance under this chapter if it has, after June 23, 1972— (D) had in effect any other practice, policy, or procedure . which discriminates among children on the basis of race, color, or national origin . . .” And Section 185.43(d) of the Departmental Regulations provides in part as follows: “(d) Discrimination against children. No educational agency shall be eligible for assistance under the Act, if, after June 23, 1972, it has had or maintained in effect any practice, policy, or procedure which results or has resulted in discrimination against children on the basis of race, color, or national origin . . .”45 CFR 185.-43(d). The word “discrimination” is not specifcally defined in the ESAA, nor in the regulations thereunder, nor in Title IV of the Civil Rights Act of 1964, 42 U.S.C. § 2000c. Basically, however, discrimination refers to a denial of equal protection. It is recognized that school authorities have a constitutional obligation not to engage in discrimination in this sense. For example, in Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1 at 13, 91 S.Ct. 1267 at 1275, 28 L.Ed.2d 554 (1971), the Supreme Court speaks of “the basic constitutional requirement that the State not discriminate between public school children on the basis of their race.” Discriminatory acts, then, are those which violate the Constitution, and discrimination is another way of referring to de jure segregation. Thus, § 185.43(d) provides a very broad and general limitation on eligibility which complements the more specific limitations enunciated in subsections (a), (b), and (c) of § 185.43, for in effect, subsection (d) merely provides that any education agency which is engaging (or has engaged since June 23, 1972) in unconstitutional acts of discrimination or de jure segregation is ineligible to receive funds under ESAA. We turn now to the facts. On December 10, 1973, the outgoing “lameduek” majority of the Cincinnati Board of Education voluntarily adopted a “Resolution Ordering the Racial and Economic Integration of Pupils in the Cincinnati Public Schools.” (doc. 11, p. 19) The resolution contained a number of recitals, with references to various committee and task force reports, purporting to list specific past acts of racial discrimination in the Cincinnati public schools stemming from various actions and inactions of the Board. The resolution also contained an acknowledgment by the Board of a legal obligation to desegregate the entire school system, and a policy statement that “each school shall enroll pupils in a manner which substantially reflects the racial and economic characteristics of the district as a whole.” Further, the resolution directed that plans be developed to implement that policy, and in aid thereof, set forth certain guidelines including the rescis