Full opinion text
I. BACKGROUND...................................................................1351 A. CASE HISTORY PRIOR TO 1970 ............................................. 1351 B. THE 1970 DESEGREGATION ORDER........................................1352 C. CASE HISTORY SINCE THE 1970 ORDER...................................1353 D. INTERVENTION BY THE UNITED STATES.................................1355 II. MOTION TO DISMISS BY STATE DEFENDANTS................................1356 A. GENERALLY.......................■.■........................................1356 B. STANDING.................................................. 1356 1. GENERALLY............................................................1356 2. DISTRICT’S STANDING TO SUE ON ITS OWN BEHALF................1356 3. DISTRICT’S STANDING TO SUE ON BEHALF OF CHILDREN IN DISTRICT ............................................................1358 4. DISTRICT’S STANDING TO SUE UNDER FEDERAL STATUTES AND CONSTITUTIONAL PROVISIONS......................................1359 C. ELEVENTH AMENDMENT IMMUNITY ISSUES.............................1360 1. GENERALLY............................................................1360 2. EX PARTE YOUNG EXCEPTION........................................1360 3. CONGRESSIONAL ABROGATION EXCEPTION..........................1363 a. Generally.............................................................1363 b. Title VI..............................................................1364 e. EEOA...............................................................1365 D. RES JUDICATA, COLLATERAL ESTOPPEL, LAW OF THE CASE AND JUDICIAL ESTOPPEL.....................................................1367 1. GENERALLY............................................................1367 III. PROPOSED CONSENT ORDER AND TRIAL......................................1368 A. GENERALLY................................................................1368 IV. ISSUES FOR TRIAL.............................................................1369 A. GENERALLY................................................................1369 V. EVIDENTIARY ISSUES DURING TRIAL.........................................1370 A. GENERALLY................................................................1370 VI. APPROVAL OF THE CONSENT ORDER AND ISSUANCE OF INTERIM JUNE 23, 1994, ORDER................................................................1370 A. GENERALLY................................................................1370 B. PROCEDURES AND CONSIDERATIONS GOVERNING CONSENT ORDER... .1370 C. REASONABLENESS OF THE CONSENT ORDER............................1371 D. NOTICE TO CLASS MEMBERS AND FAIRNESS HEARING .................1372 E. MOTION FOR NEW TRIAL/ALTER OR AMEND THE JUDGMENT...........1373 F. INTERIM JUNE 23, 1994, ORDER ...........................................1374 VII. MAYO HIGH SCHOOL AS A MAGNET...........................................1375 A. GENERALLY................................................................1375 B. RETENTION OF RACIAL IDENTIFIABILITY................................1375 1. GENERALLY............................................................1375 C. DISTRICT’S FAILURE TO ENFORCE SCHOOL ATTENDANCE ZONE LINES .................................................................-...1376 1. 1988-1991................................................................1376 2. 1991-1994 ................................................................1377 D. SCHOOL RESOURCES AND FACILITIES....................................1377 1. GENERALLY............................................................1377 2. FACILITIES ............................................................1377 3. RESOURCES............................................................1379 4. CURRICULUM..........................................................1379 5. INSTRUCTIONAL QUALITY.............................................1381 E. ASSIGNMENT OF PERSONNEL.............................................1381 1. PRINCIPALS............................................................1381 2. FACULTY...............................................................1381 3. CLASSIFIED STAFF....................................................1382 F. CLOSING OF MAYO.........................................................1382 1. GENERALLY............................................................1382 2. BURDEN ON BLACK COMMUNITY.....................................1382 3. FAILURE OF DISTRICT TO SEEK PRIOR APPROVAL FOR PREVIOUS CLOSINGS................................................1383 4. CLOSING OF BUTLER HIGH SCHOOL..................................1383 5. APPROPRIATENESS OF MAYO MAGNET...............................1384 G. CONCLUSIONS OF LAW....................................................1386 1. GENERALLY............................................................1386 2. LEGAL AUTHORITY FOR ORDERING OF MAGNET AND APPROPRIATENESS OF DEDICATED MAGNET AT MAYO............1387 VIII. PROCEDURES FOR IMPLEMENTING A DEDICATED MAGNET AT MAYO......1389 A. GENERALLY................................................................1389 IX. LIABILITY OF STATE DEFENDANTS...........................................1390 A. DISCRIMINATORY ACTIONS OF STATE.....................................1390 1. GENERALLY............................................................1390 2. STATE-MANDATED SCHOOL SEGREGATION PRIOR TO 1954...........1390 3. RESISTANCE FROM 1954-1970 ..........................................1392 a. Generally.............................................................1392 b. Legislative Action and Political Activity.................................1392 c. The Activities of the Gressette Committee..............................1397 d. The State School Building Program....................................1398 4. POST-1970 ERA AND DISCHARGE OF AFFIRMATIVE DUTY...........1400 a. Generally.............................................................1400 b. Education Finance Act................................................1401 c. Education Improvement Act...........................................1401 d. State Board of Education and State Department of Education............1401 B. MITIGATING FACTORS AFFECTING STATE LIABILITY....................1402 1. ACTIVE SEGREGATIVE PRACTICES OF DISTRICT PRIOR TO 1970.... 1402 2. DISTRICT’S ABILITY TO DESEGREGATE...............................1403 3. PRIMARY CAUSAL RESPONSIBILITY OF DISTRICT FOR “VESTIGES” ..........................................................1403 4. POST-1970 DISCRIMINATION BY DISTRICT............................1404 5. DISTRICT’S DISCRIMINATION IN STUDENT ASSIGNMENTS...........1404 6. DISTRICT’S DISCRIMINATION IN PRINCIPAL ASSIGNMENTS.........1405 7. DISTRICT’S FAILURE TO COMPLY WITH 1970 ORDER.................1405 8. DISTRICT’S DISCRIMINATION IN CURRICULUM ......................1406 9. DISTRICT’S DISCRIMINATION IN FACILITIES.........................1406 10. DISTRICT’S PRIMARY RESPONSIBILITY FOR STIGMATIZING EFFECT..............................................................1407 11. DISTRICT’S HISTORICAL RESISTANCE TO EFFORTS TO DESEGREGATE.......................................................1408 C. CONCLUSIONS OF LAW ON STATE LIABILITY.............................1408 D. CONCLUSIONS OF LAW ON MITIGATING CIRCUMSTANCES...............1414 X. APPORTIONMENT OF COSTS BETWEEN SCHOOL DISTRICT AND STATE.... 1415 A. GENERALLY................................................................1415 1. TRANSPORTATION COSTS..............................................1417 2. CAPITAL COSTS AND OPERATING EXPENSES.........................1418 XI. CONCLUSION .............................'......................................1419 CURRIE, District Judge. I. BACKGROUND A. CASE HISTORY PRIOR TO 1970 On May 29, 1962, black students in the Darlington County School District (hereinafter the “District”) sued the District for “operating the public school system ... on a racially segregated basis,” and for “refus[ing] to present a plan for desegregating the public schools.” Complaint at 2, 5 (5/29/62). On July 13, 1964, the court found that the District was violating the Constitution by its operation of a dual system of education. See Order at 6-7 (7/13/64). Accordingly, the court enjoined the District from discriminating on the basis of race, and ordered the District to desegregate its school system. The first plan proposed by the District was a “Free Transfer” plan, which was approved by the court on July 13, 1964. Order (7/13/64). Two years later, however, on August 25, 1966, the court vacated the order implementing the plan because it found that the plan failed to effectively desegregate the school system. The court ordered the District to submit another plan. The District submitted plans on January 27, 1967, and March 10, 1967, each of which was found by the court to be constitutionally defective. See Order at 2 (3/10/67). Finally, on March 10, 1967, the court ordered the District to implement a “Freedom of Choice” plan. One year later, however, the court found that the “Freedom of Choice” plan, though once considered constitutionally valid, did not in practice achieve the desegregation requirements articulated by the Supreme Court in Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). Order at 1-2 (9/13/68). The District responded by resubmitting its old “Freedom of Choice” plan. On March 31, 1969, the court again declined to find that plan constitutional. Order at 9-10 (3/31/69). The court then ordered the District to work with the Department of Health, Education and Welfare (HEW) to come up with a new plan. Id. If the District and HEW could not agree on a plan, the court directed that HEW submit a plan for the District. Id. In fact, the District refused to accept HEW’s recommendations, and HEW submitted its report on June 2, 1969. At a hearing on July 14, 1969, the District rejected the HEW report and submitted yet another “Freedom of Choice” Plan. The court, per Judge Martin, approved the District’s plan and stated that “the School District is operating in good faith to fulfill its primary responsibility for abolishing the system of segregated schools as required by Brown.” Order at 4 (7/28/69). On appeal, the Fourth Circuit vacated Judge Martin’s order, and on January 19, 1970, the Court of Appeals ordered the District to implement a desegregation plan based upon HEW Plan B, or any other plan that would create a unitary school system. See Stanley v. Darlington County Sch. Dist., et al., 424 F.2d 195, 196— 97 (4th Cir.), reh’g denied, 424 F.2d 198 (per curiam), cert. denied, 398 U.S. 909, 90 S.Ct. 1690, 26 L.Ed.2d 67 (1970). B. THE 1970 DESEGREGATION ORDER In response to the Fourth Circuit’s order, Judge Martin held a hearing on February 3, 1970. At the hearing, Judge Martin considered three plans submitted by the parties: (1) a freedom of choice plan favored -by the District; (2) “Plan A” favored by Plaintiffs, and (3) a plan based on HEW’s “Proposal B,” the District’s alternate submission to its freedom of choice plan. The original, unmodified HEW Plan B was contained in pages 48a through 49j of the HEW report. Plan B contained zone maps delineating new attendance zones which HEW believed might desegregate the schools. Plan B also projected the number of black and white students that would attend each school as a result of the new zoning. At the hearing on February 3, 1970, Judge Martin rejected the District’s plea for another “Freedom of Choice” plan, and indicated his preference for the original HEW Plan B. Hearing Tr. at 43, 61. Accordingly, Judge Martin asked the District why it had changed HEW Plan B. Id. at 61. In response, the District asserted that it had “not changed the HEW plan B”; rather, the District claimed that the maps submitted to the court by the District simply superimposed Plan B’s general lines upon specific streets. See Id. at 62-64. Moreover, the District claimed that the “corrected” projections were simply a more accurate head count of the students within each attendance zone. Id. at 62. Plaintiffs, on the other hand, pointed out changes to the original Plan B zone lines, and indicated that the effect of these changes on desegregation could not be assessed because the District had not provided spot maps to indicate the race of the children in various school zones. Id. at 32-34. At the conclusion of the hearing, Judge Martin, relying upon representations of the District’s attorneys, ordered implementation of “Proposal B submitted by HEW with the specifications and details as provided by the Darlington School Board and such plans and specifications are hereby incorporated into, attached to and made a part of this order.” See Id. at 64-69. Judge Martin emphasized, however, that the zone lines submitted by the District were only provisionally approved depending on what kind of results the lines produced: “I just don’t want to give the impression that this is the finality regardless of what might arise, because it’s a continuing situation.” Id. at 70. Examination of the District’s maps, attached to the 1970 order, reveals that the revisions submitted by the District were in fact quite different from the HEW Plan B zone lines. In addition to containing provisions regarding student assignment, the 1970 desegregation order also contained provisions relating to faculty assignment, transportation, curriculum, student activities, services, and vocational programs. Order at 2-3 (2/5/70). In regard to faculty assignment, the order required that the faculty race ratio at each school be “approximately the same as the ratio .throughout the system.” Id. at 3. The court-ordered plan was promptly implemented. When the District reported back to the court on April 30, 1970, with the results of the “modified” Plan B, the District’s data revealed the following: 1. Every historically black elementary school remained between 80% and 100% black in its student enrollment. 2. Every historically black secondary school remained between 92% and 99% black in its student enrollment. 3. Nine of the seventeen historically white schools remained racially identifiable in student assignment (i.e., departing from the district-wide average by more than 20%). 4. Fifteen of the District’s twenty-eight schools were out of compliance with the order’s requirement that their faculty race ratios be approximately the same as the district-wide average (i.e., departing from the district-wide average by 10% or more). C. CASE HISTORY SINCE THE 1970 ORDER One year after the court issued its 1970 desegregation order for Darlington County, the Supreme Court decided Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). In Swann, the Supreme Court addressed “the problem of defining with more particularity the responsibilities of school authorities in desegregating a state-enforced dual school system.” Id. at 18, 91 S.Ct. at 1277. The Court recognized that, up to that time, district courts “had to improvise and experiment [with desegregation remedies] without detailed or specific guidelines.” Id. at 6, 91 S.Ct. at 1271. After the Supreme Court articulated the new standard for what constituted a constitutionally effective plan in Swann and Davis v. Board of Sch. Comm’rs., 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971), the Fourth Circuit ordered all school districts awaiting approval of desegregation plans to rewrite their plans in accordance with the two decisions. Specifically, the Court of Appeals sought to insure implementation of the following principles: 1. “ ‘The district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation.’” Adams, 444 F.2d at 100 (quoting Davis, 402 U.S. at 37, 91 S.Ct. at 1292). 2. “The school authorities and the district court should consider the use of all techniques for desegregation, including pairing or grouping schools, noncontiguous attendance zones, restructuring of grade levels, and the transportation of pupils.” Id. at 101. 3. “If the district court approves a plan achieving less actual desegregation than would be achieved under an alternate proposed plan, it should find facts that are thought to make impracticable the achievement of a greater degree of integration, especially if there remain any schools all or predominantly of one race.” Id. Shortly after Swann and Davis were decided, Plaintiffs filed a motion for further relief on July 31, 1971, contending that the 1970 order needed to be examined against the standards of effectiveness set forth by the Supreme Court in those two cases. By order of April 23, 1973, Judge Simons, to whom the case had been reassigned, stated that, subject to the addition of a Majority-To-Minority Transfer provision, “the Order of this court of February 5, 1970, .... ordering the implementation of HEW Plan B as directed by the Fourth Circuit Court of Appeals, is not constitutionally defective on its face.” Order at 3. The 1970 Order however, had not ordered “implementation of HEW Plan B as directed by the Fourth Circuit”; rather, it ordered implementation of HEW Plan B as modified by the District. It does not appear that Judge Simons was aware of the discrepancy between HEW Plan B lines and the modified plan approved by Judge Martin. The court also denied Plaintiffs’ motion for partial summary judgment. Judge Simons indicated that “many of the basic facts ... are not in dispute. However, the inferences to be drawn from them are disputed. The plaintiffs will be given an evidentiary hearing to prove, if they can, any failure to comply with the 1970 Order of this court.” Order at 3 (4/23/73). Plaintiffs’ application to the Fourth Circuit for an interlocutory appeal on the denial of the motion for summary judgment was denied. In denying permission for an interlocutory appeal, the Court of Appeals expressed no opinion regarding the constitutional effectiveness of the 1970 Order. Order (7/1/73). When the matter came before him again on February 22, 1974, Judge Simons found HEW Plan B, with the addition of the Majority-to-Minority Transfer provision, constitutionally adequate. He then ordered full discovery, to be completed within 30 days, on the principal issue remaining for trial, the District’s compliance with the Plan. Order (2/22/74). On October 2, 1974, the parties again appeared before Judge Simons who considered another request by Plaintiffs' for a new plan. After reviewing the case history, Judge Simons reiterated his prior findings: So the Court still stands by its position. I don’t know on what basis you went to the trouble and the expense to have experts prepare a new desegregation plan which you proposed to be implemented by the Court, because the Court has already found unequivocally, definitely and positively that the previous plan as amended is constitutionally sound. Hearing Tr. at 5. He then informed Plaintiffs: I have issued the final order rejecting your motion to implement the new plan. You can go to the appellate court on that, or your alternative request asked for this court for the opportunity of presenting evidence to see if you can establish that the previous plan is not being properly implemented. That’s the two alternatives that are open to you now. You’ll have to make a decision. I would give you, if you would like, thirty days to consider it. Id., at 7-8. When Plaintiffs neither appealed the finding of constitutionality nor pursued the issue of non-compliance, Judge Simons ordered the case placed on the inactive docket in 1976 with both parties having the option of moving to reopen the case. Minute Order (4/29/76). The ease remained inactive until 1983, when Plaintiffs filed another motion challenging the validity of the plan and alleging that the District had failed to comply with the court-ordered plan. In a hearing on February 7, 1984, Judge Houck, the third judge to preside over the case, stated that Judge Simons had found the plan constitutional and given Plaintiffs 30 days to contest its implementation, but that Plaintiffs had not done so. Thus, Judge Houck held that the decision that the plan was constitutional was final, and had become the law of the case. Hearing Tr. at 10-12 (2/7/84). With respect to the compliance issues, Judge Houck gave Plaintiffs another opportunity to prove their allegations of non-compliance. On or about April 5, 1984, Plaintiffs submitted an Offer of Proof regarding their noneomplianee claim, which specifically alleged non-compliance with the 1970 court-ordered desegregation plan in the following areas: 1) Construction and closing of school facilities, including specifically the construction of St. John’s High School, the construction of the career center in Darlington, the construction of several elementary schools in the Hartsville area, and the closing of Butler High School; 2) Inconsistencies in attendance zone lines between HEW Plan B and the attendance zones used by the District including the attendance zone boundaries between the Carolina and Washington Street Elementary Schools; 3) The assignment of residents in the Country Club Estates area to the school zone containing St. John’s High School, Brunson-Dargan Junior High School and Spring Elementary School; 4) The boundary lines between St. John’s Elementary School, St. John’s High School and Brunson-Dargan Junior High School, and Brockington Elementary School, Pine Middle School and Mayo High School; 5) The system-wide assignment of principals; 6) The system-wide assignment of teachers; and 7) The locations of the program for the gifted and talented in the elementary grades. (Plaintiffs Offer of Proof, April 5, 1984). After discovery, Judge Houck held a hearing on February 17, 1985, in which Plaintiffs abandoned their claims of non-compliance and moved to withdraw their Motion for Relief. After further exchanges between the court and counsel, the court entered an order dated September 27, 1985, which stated that Plaintiffs advised “the court that Defendants had produced for inspection the various records sought and that counsel had spent numerous hours reviewing these records.” Based on the “entire record in the case,” the court held: [T]his Court is firmly convinced that Plaintiffs should be permitted to withdraw the Motion for further relief since it appears that the Defendants are not out of compliance of the existing Orders of this Court up to the present date. This matter is, therefore, dismissed as to any claim of non-compliance up to the date of this Order. Order at 3 (9/17/85). Plaintiffs did not challenge or appeal Judge Houck’s order. D. INTERVENTION BY THE UNITED STATES In 1990 the United States moved for leave to intervene. In its Complaint-In-Intervention, the United States requested, among other things, that the court order Defendants “to adopt and implement a plan that will eliminate the aforementioned discriminatory practices and fully desegregate the public schools of Darlington County.” Complaint-In-Intervention at 7 (8/15/91). At a hearing on August 15,. 1992, the court granted the United States’ Motion for Leave to Intervene. See Hearing Tr. at 46-47 (8/15/91). At this same hearing, Judge Houck made clear that he never conducted an evidentiary hearing to determine the District’s compliance with the Order or the Order’s constitutional effectiveness. Hearing Tr. at 43 (8/11/92). Referring to the 1985 order, the court stated: “I did not have an evidentiary hearing at that time, and made my ruling primarily, if not all together, upon the basis that the plaintiffs stated in open court that they could not prove that non-compliance of Judge Martin’s 1970 order existed.” Id. at 16, 43. By order of May 14, 1993, the court also granted the District’s motion to join the State of South Carolina as a defendant, pursuant to Rule 19, Fed.R.Civ.P., Order (5/14/93). At a hearing on September 24, 1993, the court denied various motions and scheduled the ease for trial. In so doing, the court addressed the District’s assertions that the court had previously found the District in compliance with the February 5,1970, desegregation plan: .... Let’s seize on that statement so there won’t be any misunderstanding. Nobody has ever found that this plan has been complied with. Nobody. I haven’t. Judge Simons hasn’t. Judge Martin hasn’t. Nobody has. Nobody has ever asked to do that. The plaintiffs have raised that issue on several occasions, and defaulted, withdrawn the issue, whatever, but no court that I’ve been able to find has ever factually determined that the plan has been complied with, and I don’t think you can show me where they have.... There’s never been any finding of fact made, period, since the order was signed. Hearing Tr. at 34-35 (9/24/93). In March 1994 the case was reassigned to the undersigned. Pretrial-trial hearings were held on April 12 and April 29, 1994. At the latter hearing, this court, inter alia: (1) ordered that the liability and remedial issues be consolidated into a single trial; (2) granted the United States’ motion to preclude the District from introducing evidence and testimony, including results of a public opinion survey commissioned by the District, purporting to show that further desegregation measures at racially identifiable schools would be impractical or infeasible because of resulting “white flight” from the District; and (3) ruled that the prior rulings of the court did not preclude a full evidentiary hearing on the District’s activities from 1970 through the present. II. MOTION TO DISMISS BY STATE DEFENDANTS A. GENERALLY The State Defendants (hereinafter “The State”) contend that (1) the District lacks standing to sue in its own right or on behalf of its residents; (2) the State is immune from suit under the Eleventh Amendment; and (3) the doctrines of law of the case, res judicata, collateral estoppel, and judicial estoppel bar the claims of the District. The State filed a Motion to Dismiss that the court denied except as to State Budget and Control Board and its members. B. STANDING 1. GENERALLY The State contends that the District lacks standing to assert the cross-claims. However, the court concludes that the District has standing to sue on its own behalf and on behalf of children in its District. See, e.g., School Bd. v. Baliles, 829 F.2d 1308, 1310-11 (4th Cir.1987); Akron Bd. of Educ. v. State Bd. of Educ., 490 F.2d 1285, 1289-91 (6th Cir.), cert. denied, 417 U.S. 932, 94 S.Ct. 2644, 41 L.Ed.2d 236 (1974); Brewer v. Hoxie Sch. Dist. No. 46, 238 F.2d 91, 104-5 (8th Cir.1956); Board of Sch. Directors v. Wisconsin, 649 F.Supp. 82, 94-97 (E.D.Wis.1985); Bradley v. School Bd., 338 F.Supp. 67, 229 (E.D.Va.), rev’d on other grounds, 462 F.2d 1058 (4th Cir.1972), aff'd by an equally divided court, 412 U.S. 92, 93 S.Ct. 1952, 36 L.Ed.2d 771 (1973). See also Board of Educ. v. Allen, 392 U.S. 236, 241 n. 5, 88 S.Ct. 1923, 1925 n. 5, 20 L.Ed.2d 1060 (1968) (local school board assumed to have standing to challenge constitutional validity of state statute). 2. DISTRICT’S STANDING TO SUE ON ITS OWN BEHALF In School Board of the City of Richmond v. Baliles, 829 F.2d 1308 (4th Cir.1987), the Richmond school board asserted claims against the Governor of Virginia, the state board of education and others alleging (1) that the state defendants’ failure to discharge their affirmative obligation to eliminate the vestiges of state-imposed segregation had impeded the local school board’s ability to carry out its own constitutional duty to redress the effects of segregation; and (2) that the state defendants’ unconstitutional conduct had caused direct economic injury to the local school board, requiring large expenditures for compensatory education and other educational services. 829 F.2d at 1311. The Fourth Circuit found standing for the school board on several grounds. One basis for standing was the school board’s allegation that state defendants’ actions had impeded its ability to carry out its own constitutional duty. Thus, the school board had standing to sue based on the direct violation of its own rights. Id. Similarly, in this case, the District alleged and proved state actions that impeded its ability to desegregate. Therefore, under Baliles the District has standing to sue the State in its own right. The Fourth Circuit’s analysis in Baliles is consistent with Supreme Court standing cases. In order to determine whether a party has the requisite standing to sue, the Supreme Court uses a three-pronged test to ensure the existence of a case or controversy under Article III of the Constitution. The test requires that the local school district have “[1] suffered some actual or threatened injury ... [2] [that] fairly can be traced to the challenged action and [3] [that] is likely to be redressed by a favorable decision.” Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982), quoted in Los Angeles Branch NAACP v. Los Angeles Unified Sch. Dist., 714 F.2d 946, 948 (9th Cir.1983), cert. denied, 467 U.S. 1209, 104 S.Ct. 2398, 81 L.Ed.2d 354 (1984). Here, the District has satisfied all three elements of this test. First, the School District has allegedly suffered a “distinct and palpable” injury. Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324-25, 82 L.Ed.2d 556 (1984). In this case, the State’s actions have made it more difficult and expensive to desegregate the Darlington County schools. These are precisely the types of injuries that furnished standing under Baliles. Other courts have also found that local school districts have standing to sue state defendants in furtherance of their affirmative duty to eliminate segregation. See, e.g., Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist., 584 F.Supp. 328, 352 (E.D.Ark.), rev’d, remanded, 738 F.2d 82 (8th Cir.1984); Board of Sch. Directors v. Wisconsin, 649 F.Supp. 82 (E.D.Wis.1985). Second, the alleged injury for which the District seeks redress was caused by the intentional conduct of the State in creating the dual school system initially, in actively resisting and thwarting prior attempts to desegregate the public schools, in failing to discharge its affirmative duty to erase all vestiges of state-imposed segregation, and in implementing discriminatory statutes, regulations and policies. Thus, the District’s injury is traceable to the challenged action. See, e.g., Los Angeles Branch NAACP, 714 F.2d at 948. Third, the District’s injuries are redressable, as required. The State does not specifically challenge the court’s power to fashion an appropriate remedy for the injuries allegedly suffered by the District.. Innumerable cases have demonstrated a court’s equitable and legal powers to remedy precisely the type of injury alleged here. Given the role of each of the state defendants in the governance of South Carolina, their presence in this ease is essential to enable the court to fashion an effective remedy. A second ground for standing articulated in Baliles was the school board’s incurring of additional expenses arising from the state defendants’ conduct. Baliles, 829 F.2d at 1311. Thus, although the rights violated in Baliles were those of the school children, the school board also sustained injury from the state defendants’ unconstitutional conduct, which gave the school board standing to sue. Id. Here, the court finds that the State has violated the constitutional rights of children residing in the District, and that the District has standing to sue for additional sums it will be required to expend because of, the State’s violations. The court thus finds that the District has standing to sue under this theory as well. 3. DISTRICT’S STANDING TO SUE ON BEHALF OF CHILDREN IN DISTRICT When a party seeks to advance the constitutional rights of others, sometimes called the jus terbii doctrine, two inquiries must be made: (1) whether the party has suffered some injury in fact so the claim meets the constitutional case-or-controversy requirement; and (2) whether prudential considerations permit the litigant to advance the claim. Caplin & Drysdale v. United States, 491 U.S. 617, 623 n. 3, 109 S.Ct. 2646, 2651 n. 3, 105 L.Ed.2d 528 (1989); Singleton v. Wulff, 428 U.S. 106, 112, 96 S.Ct. 2868, 2873, 49 L.Ed.2d 826 (1976). Here, the District has suffered injury in fact because of the State’s actions and omissions, thus meeting the constitutional requirement. With respect to the second inquiry, the Supreme Court has identified three prudential factors that must be considered: (1) the relationship of the litigant to the person whose rights are being asserted; (2) the ability of the person to advance his own rights; and (3) the impact of the litigation on third-party interests. Caplin & Drysdale, 491 U.S. at 623-24, n. 3, 109 S.Ct. at 2651, n. 3; Singleton, 428 U.S. at 113-18, 96 S.Ct. at 2873-76. These factors are discussed below. The key aspects of the relationship factor are “a common link to the right asserted, consistency of the parties’ interests, and effective advocacy — not the intimacy of the relationship per se.” Amato v. Wilentz, 952 F.2d 742, 752 (3d Cir.1991). Here, the duties of the District are interwoven with the rights of the school children and their parents. All have an interest in providing the school children an excellent education in desegregated schools. Further, they have an interest in ensuring that the costs of desegregation are equitably distributed between the District and the State. Because of this identity of interests, the District has ample incentive to forcefully advocate the rights of the parents and students. The relationship between the District and the parents and students therefore supports jus tertii standing. The second factor, the ability of the parents and children to advance their own rights, also weighs in favor of permitting third-party standing. Courts applying this factor have held that the obstacle to suit by the third party need not be insurmountable; a practical disincentive to sue may suffice. See Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). Here, the obstacles to suit are substantial, and the children and parents could well decline to litigate because the amount at stake for any one household would not justify the time and expense involved in joining this litigation. See Akron Bd. of Educ. v. State Bd. of Educ., 490 F.2d 1285, 1289 (6th Cir.) (parents’ concern unlikely to be aroused because of the small size of area to be transferred from district and minimal present impact), cert. denied, 417 U.S. 932, 94 S.Ct. 2644, 41 L.Ed.2d 236 (1974); Bradley v. School Bd., 338 F.Supp. 67, 230 (E.D.Va.) (“were school boards not to be accorded standing, serious deprivations to constitutional rights might occur, especially in situations wherein individual plaintiffs might well lack the resources to bring and maintain the type of mammoth law suit involved”), rev’d on other grounds, 462 F.2d 1058 (4th Cir.1972), aff'd by an equally divided Court, 412 U.S. 92, 93 S.Ct. 1952, 36 L.Ed.2d 771 (1973). Indeed, neither the NAACP Legal Defense Fund nor the Justice Department, which otherwise represent the children’s interests in this litigation, have shown any willingness to represent the children in their claims against the State. In fact, they have expressly declined to do so. Therefore, as a practical matter, unless the District is allowed to pursue the claims against the State, it is likely that no one will. The third factor, the impact of the litigation on third-party interests, is closely linked to the relationship factor. Amato, 952 F.2d at 749, n. 7. Because the District is in a position to be an effective advocate for the parents and children, and because the parents and children are unlikely to assert their rights for themselves, the court concludes they will benefit from the District’s assertion of third-party standing. All three of the prudential factors identified by the Supreme Court support third-party standing in this case. The court therefore concludes that the District has standing to sue for the injuries sustained by the children residing in the district. In Baliles, the Fourth Circuit also held that a school board may sue on behalf of its students. The court noted that it had implicitly ruled in Bradley v. School Bd., 462 F.2d 1058 (4th Cir.1972), aff'd, 412 U.S. 92, 93 S.Ct. 1952, 36 L.Ed.2d 771 (1973), that the school board had standing to bring claims against the state on behalf of Richmond’s white and black students. School Bd. v. Baliles, 829 F.2d 1308, 1310 (4th Cir.1987). In Bradley, the Fourth Circuit left undisturbed the district court’s holding that the defendant school board had standing to file a cross-claim against the state and county defendants. See Bradley v. School Bd., 338 F.Supp. 67, 229-30 (E.D.Va.), rev’d on other grounds, 462 F.2d 1058 (4th Cir.1972), aff'd by an equally divided Court, 412 U.S. 92, 93 S.Ct. 1952, 36 L.Ed.2d 171 (1973). In Bradley, the district court noted that the school board’s cross-claim was “brought in the capacity of the Board as guardian, as it were, for the pupils in the Richmond city schools, and as such its action is brought on behalf of the white and' the black students.” Id. at 230. The Fourth Circuit in Baliles affirmed this reasoning. 829 F.2d at 1311. Therefore, under the authority of Baliles, the court concludes that the District can assert claims on behalf of the children residing in the district. The State contends that because the District is a political subdivision, it may not make claims as parens patriae on behalf of its residents. This argument has been rejected by Baliles and Bradley, which permitted the school board to represent students’ interests. To the extent the parens patriae decisions cited by the State purport to state a rule of third-party standing, it is a rule of practice only and may be outweighed by the need to protect fundamental rights. See Barrows v. Jackson, 346 U.S. 249, 257, 73 S.Ct. 1031, 1035, 97 L.Ed. 1586 (1953). 4. DISTRICT’S STANDING TO SUE UNDER FEDERAL STATUTES AND CONSTITUTIONAL PROVISIONS The District’s claims for relief are based upon the Fourteenth Amendment (U.S. Const.Amend. XIV), Title VI (42 U.S.C. § 2000d), and the Equal Education Opportunity Act (EEOA, 20 U.S.C. 1703). Federal courts have inherent authority to compel compliance with constitutional provisions. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 392, 91 S.Ct. 1999, 2002-2003, 29 L.Ed.2d 619 (1971); Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979); Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). The District, as shown above, is clearly entitled to assert claims for injunctive relief to remedy the State’s alleged violations of the Fourteenth Amendment. The District, as an entity, has standing to sue on its own behalf under Title VI for the reasons stated in Hudson Valley Freedom Theater, Inc. v. Heimbach, 671 F.2d 702 (2d Cir.), cert. denied, 459 U.S. 857, 103 S.Ct. 127, 74 L.Ed.2d 110 (1982). In Hudson Valley a not-for-profit theater company that sought to reach and involve the black and Hispanic communities had standing to sue under Title VI based on alleged racially-motivated discrimination in the provision of government funding for the company. The court reasoned that Title VI does not say that “[n]o person in the United States shall, on the ground of his race, color, or national origin” be subjected to discrimination under a program receiving federal financial assistance. Id. at 705. Thus, an entity may sue under Title VI when it sustains injury as the result of racial discrimination in program funding. The District therefore may sue under Title VI based on the injuries it has sustained here. C. ELEVENTH AMENDMENT IMMUNITY ISSUES 1. GENERALLY The State also contends that the District’s claims are barred by the Eleventh Amendment. The impetus for Eleventh Amendment was the prevention of federal court judgments that must be paid out of a state’s treasury. Hess v. Port Authority Trans-Hudson Corp., — U.S. -, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994). However, the Eleventh Amendment does not bar all actions against a state or its agencies and officials in federal court. Two well-established exceptions apply in this case. The Ex parte Young exception authorizes this suit to proceed against the individual state officials named in the cross-claim (ie., the Governor, the State Board of Education members, and the State Department of Education Superintendent (the “Superintendent”). Moreover, the congressional abrogation exception authorizes this suit to proceed against the state entities (ie., the State of South Carolina, the State Board of Education (the “State Board”), the State Budget and Control Board, and the State Department of Education (the “Department of Education”). 2. EX PARTE YOUNG EXCEPTION When a state official is sued in his official capacity in a suit that seeks the recovery of money from the state, the state will be deemed to be the real and substantial party in interest and may invoke its Eleventh Amendment immunity as a defense even though individual officials are the named defendants. Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350-51, 89 L.Ed. 389 (1945). However, that principle provides no immunity for officials here because the District is seeking primarily prospective injunctive relief against the State to end an alleged continuing violation of constitutional and federal law. Prospective compliance suits of this sort are specifically authorized under a long line of cases extending back to the Supreme Court’s landmark decision in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). There, the Supreme Court carved out an important exception to Eleventh Amendment immunity by holding that a suit to enjoin the unconstitutional acts of a state official is not a suit against the state and is, therefore, not barred by the Eleventh Amendment. 209 U.S. at 159-60, 28 S.Ct. at 453-54. This holding rested on the theory that an unconstitutional statute is void and, therefore, does not “impart to [the official] any immunity from responsibility to the supreme authority of the United States.” 209 U.S. at 160, 28 S.Ct. at 454. In repeatedly reaffirming Young’s prospective compliance exception, the Supreme Court has established that the Eleventh Amendment does not prevent federal courts from entertaining suits that seek prospective injunctive relief against state officials who are sued in their official capacity to prevent a continuing violation of federal law. E.g., Papasan v. Allain, 478 U.S. 265, 282, 106 S.Ct. 2932, 2942-43, 92 L.Ed.2d 209 (1986); Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 425-26, 88 L.Ed.2d 371 (1985); see also Wu v. Thomas, 863 F.2d 1543, 1550 (11th Cir.1989). Indeed, the Supreme Court has recognized that “[Remedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law.” 474 U.S. at 68, 106 S.Ct. at 426 (citation omitted). The State contends that the District’s claims are in essence claims for money damages, and that the Ex parte Young exception does not apply. However, “relief that serves directly to bring an end to a present violation of federal law is not barred by the Eleventh Amendment even though accompanied by a substantial ancillary effect on the state treasury." Papasan, 478 U.S. at 278, 106 S.Ct. at 2940 (emphasis added). Thus, in Edelman v. Jordan, 415 U.S. 651, 664, 94 S.Ct. 1347, 1356, 39 L.Ed.2d 662 (1974), the court recognized that injunctive relief may have serious fiscal impact on a state because it prevents the collection of substantial monetary penalties that otherwise would have enriched the state treasury. 415 U.S. at 667, 94 S.Ct. at 1357-58. Edelman found, however, such impact permissible: But the fiscal consequences to state treasuries in these cases were the necessary result of compliance with decrees which by their terms were prospective in nature. State officials, in order to shape their official conduct to the mandate of the Court’s decrees, would more likely have to spend money from the state treasury than if they had been left free to pursue their previous course of conduct. Such an ancillary effect on the state treasury is a permissible and often an inevitable consequence of the principle announced in Ex parte Young. 415 U.S. at 667-68, 94 S.Ct. at 1357-58 (emphasis added). The Supreme Court has expressly held that relief identical to that sought in this case fits within the Ex parte Young exception to the Eleventh Amendment. In Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (*hereinafter “Milliken II ”), the Supreme Court held that the state defendants (including the governor of Michigan, the attorney general, the state board of education, and the state superintendent) could be required to pay half the cost of the various educational components that were part of a local school desegregation plan imposed by the district court. Even though the state would be required to expend substantial sums of money, the Supreme Court found that the Eleventh Amendment was not violated because: The decree to share the future costs of educational components in this ease fits squarely within the prospective-compliance exception reaffirmed by Edelman. That exception, which had its genesis in Ex parte Young, permits federal courts to enjoin state officials to conform their conduct to requirements of federal law, notwithstanding a direct and substantial impact on the state treasury. The order challenged here does no more than that. The decree requires state officials, held responsible for unconstitutional conduct, in findings which are not challenged, to eliminate a de jure segregated school system. More precisely, the burden on state officials is that set forth in Swann—to take necessary steps to “eliminate from the public schools all vestiges of state-imposed segregation.” Milliken II, 433 U.S. at 289-90, 97 S.Ct. at 2761-62 (citations omitted). Likewise, in Papasan v. Attain, 478 U.S. 265, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986), a case addressing a disparity in the distribution of educational funds in Mississippi arising out of actions that occurred a century earlier, the Court underscored the continuing strength of Milliken II and Ex parte Young. In Papasan, the Supreme Court held that the alleged constitutional violation — the state’s unequal distribution of benefits — was precisely the type of continuing violation for which a remedy could be fashioned under Ex parte Young. The Court stated: [T]he essence of the equal protection allegation is the present disparity in the distribution of the benefits of state-held assets and not the past actions of the State. A remedy to eliminate this current disparity, even a remedy that might require the expenditure of state funds, would ensure “ ‘compliance in the future with a substantive federal-question determination’ ” rather than bestow an award for accrued monetary liability. This claim is, in fact, in all essential respects the same as the equal protection claim for which relief was approved in Milliken. Papasan, 478 U.S. at 282, 106 S.Ct. at 2942 (citation omitted; emphasis altered). The State also argues that the Ex parte Young exception does not apply because the state officials either lack personal involvement as to the matters alleged in the cross-claim or lack authority over these matters. It asserts that the Governor has “no personal or individual involvement, or any powers as to matters alleged in the Cross-Claim.” (State Memorandum in Support of Motion to Dismiss, at 12-13.) As to the Superintendent and State Board members, the State does not allege lack of personal involvement on their behalf, but instead asserts that they “have no enforcement authority as to future matters such as pupil assignments and school consolidations to make them subject to an injunction for future conduct.” (Id., at 13.) The State’s argument that the Governor lacks personal involvement in the constitutional wrongs alleged misconceives the scope of the Ex parte Young exception. Ex parte Young does not require that a state official have personal involvement in the alleged constitutional violation to fall within the exception to immunity under the Eleventh Amendment. Ex parte Young requires only that the state official who is sued must “by virtue of his office ha[ve] some connection” with the unconstitutional act or conduct complained of. Ex parte Young, 209 U.S. 123, 157, 28 S.Ct. 441, 453, 52 L.Ed. 714 (1908). As explained in Luckey v. Harris, 860 F.2d 1012, 1015-16 (11th Cir.1988), reh. denied, 896 F.2d 479 (11th Cir.1989), cert. denied, 495 U.S. 957, 110 S.Ct. 2562, 109 L.Ed.2d 744 (1990), “All that is required is that the official be responsible for the challenged action.” In Luckey, indigent plaintiffs sued the governor and other state officials to compel them to provide adequate legal representation. The Eleventh Circuit held that the Ex parte Young “connection” requirement was satisfied as to the governor because he is responsible for law enforcement, is charged with executing the laws faithfully, has residual power to commence criminal prosecutions, and has final authority to direct the attorney general to prosecute on behalf of the state. Luckey, 860 F.2d at 1016. See also Board of Pub. Educ. v. Georgia, No. CV 490-101, slip op. at 11-12, 1990 WL 608208 (S.D.Ga. Sept. 24, 1990) (connection requirement met with respect to governor, comptroller and fiscal division director, in part because of their fiscal responsibilities concerning education); Dekalb County Sch. Dist. v. Rogers, No. 1:90-cv-1769-WCO, slip op. at 15-17 (N.D.Ga. March 27, 1991) (same). In the present action, most of the state officials named as defendants have an adequate connection to the unlawful acts alleged in the Cross-Claim to establish the “connection” required by Ex parte Young. The Constitution and statutes of the State of South Carolina place substantial responsibilities upon the Governor in the area of education. The South Carolina Constitution provides that the Governor is the chief magistrate of the State of South Carolina with the duty to faithfully execute the laws of the State. S.C. Const. Art. IV, §§ 1,15. The State Board has the power to approve, alter, or deny annual education budgets. The State Board also oversees all federal and state aid to local school districts and reviews the annual per-weighted-pupil budget estimates as submitted by the State Board. S.C.Code Ann. § 1-11-25 (Law.Co-op.1976); Cross-Claim, § 7. The Superintendent and State Board members also are closely tied to the constitutional violations alleged by the District. The Superintendent is charged with the responsibility of administering, through the Department of Education, all policies and procedures adopted by the State Board. S.C.Code Ann. § 59-8-80 (Law.Co-op.1976). The Superintendent also is directed to supervise and manage all public school funds provided by the state and federal governments. Id. The State Board has the broad power to adopt policies, rules and regulations for the state’s public schools. S.C.Code Ann. § 59-5-60 (Law.Co-op.1976). The State Board approves the Department of Education’s budget before its submission to the Budget and Control Board and the General Assembly. Id. The State Board also is charged with responsibility for making plans for construction of public school buildings and seeking more efficient operation of the pupil transportation system. S.C.Code Ann. § 59-5-100 (Law.Co-op.1976). Its responsibilities with respect to transportation are quite broad. South Carolina law provides that “[t]he control and management of all school bus transportation in the State shall be vested in the State Board of Education.” S.C.Code Ann. § 59-67-410 (Law Coop.1976). However, with respect to the State Budget and Control Board for the State of South Carolina and its members, the court concludes the Ex Parte Young exception does not apply and therefore, the claims against the Board and its members must be dismissed. The State Budget and Control Board and its members have no authority over education matters, nor do they have any authority to appropriate money. Under Act No. 132, 1993 S.C. Acts 246, authority of the State Budget and Control Board over budgetary matters was given to the Governor. Accordingly, because the court finds no close connection between the matters at issue in this case and the responsibilities of the State Budget and Control Board and its members, all cross-claims against those parties are dismissed. 3. CONGRESSIONAL ABROGATION EXCEPTION a. Generally Just as the Ex parte Young exception removes any Eleventh Amendment immunity of the state officials, the court concludes that the congressional abrogation exception overcomes the Eleventh Amendment defenses asserted by the state defendant entities. The abrogation doctrine recognizes that a state’s Eleventh Amendment immunity may be nullified when Congress acts pursuant to its enforcement power under § 5 of the Fourteenth Amendment. As the Supreme Court stated in Fitzpatrick v. Bitzer: [W]e think that the Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment. In that section Congress is expressly granted authority to enforce “by appropriate legislation” the substantive provisions of the Fourteenth Amendment, which themselves embody significant limitations on state authority____ We think that Congress may, in determining what is “appropriate legislation” for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts. 427 U.S. 445, 456, 96 S.Ct. 2666, 2671, 49 L.Ed.2d 614 (1976) (citations omitted). In the present action, the two federal statutes upon which the District relies, Title VI and the Equal Educational Opportunity Act (EEOA), represent instances in which Congress has exercised its authority under § 5 of the Fourteenth Amendment to abrogate the Eleventh Amendment. These statutes thus permit the District’s assertion of cross-claims against the State of South Carolina, the State Board and the Department of Education as defendants, notwithstanding the immunity ordinarily-afforded to states and state entities under the Eleventh Amendment. The State contends that Title Vi’s abrogation of Eleventh Amendment immunity does not apply to those defendants because they allegedly are not currently engaged in unconstitutional conduct and because the cross-claim does not allege discrimination “under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. As to the District’s EEOA cross-claim, the State contends that the EEOA fails to meet the test for implied abrogation of the Eleventh Amendment and that the District’s allegations fail to state a claim against the Superintendent and State Board under the EEOA. For the following reasons, the court rejects each of these arguments. b. Title VI Title VI contains a broad prohibition against race discrimination under any program or activity receiving federal financial assistance. 42 U.S.C. § 2000d. Because state and local governments receive federal funding for education, Title VI is frequently invoked by plaintiffs in school desegregation cases. See, e.g., Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974); Reed v. Rhodes, 500 F.Supp. 404, 416 (N.D.Ohio 1980), aff'd, 662 F.2d 1219 (1981), cert. denied, 455 U.S. 1018, 102 S.Ct. 1713, 72 L.Ed.2d 135 (1982). Eleventh Amendment immunity is not a defense to a Title VI action because Congress expressly abrogated Eleventh Amendment immunity for suits brought under Title VI as to any violations that occur in whole or in part after October 21, 1986. See Civil Rights Remedies Equalization Act, 42 U.S.C. § 2000d-7. Because the State of South Carolina and its educational agencies are recipients of federal funds for educational purposes, they are subject to suit under Title VI. Furthermore, their continuing failure to take affirmative actions to dismantle the former dual school system constitutes an ongoing violation of Title VI occurring in whole or in part after October 21, 1986. See Parents for Quality Educ. with Integration, Inc. v. Fort Wayne Community Schs. Corp., 662 F.Supp. 1475 (N.D.Ind.1987), dismissed, 728 F.Supp. 1373 (N.D.Ind.1990). Because Congress expressly abrogated Eleventh Amendment immunity for such violations, this action can be brought directly against the State of South Carolina and its educational agencies, the State Board, and the Department of Education. The State argues that Title VI does not apply to them because the District’s allegations of discrimination do not relate to a program or activity receiving federal financial assistance. This argument ignores the Civil Rights Restoration Act of 1987, 42 U.S.C. § 2000d-4a, which overturned Grove City College v. Bell, 465 U.S. 555, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984), and significantly broadened the scope of Title VI. In Grove City, the Supreme Court narrowly construed the phrase “program or activity,” giving it a “program-specific” interpretation that differed from the broader interpretation adopted by most lower courts. The Civil Rights Restoration Act reinstates the broader concept of “program or activity” by adding to Title VI an explicit definition for that phrase. The new definition specifies that entire entities receiving federal funds— whether governmental entities, school systems, or universities — must comply with Title VI, rather than just the particular program or activity that actually receives the funds. See Radcliff v. Landau, 883 F.2d 1481 (9th Cir.1989); United States v. Louisiana, 811 F.Supp. 1151 (E.D.La.1992), vacated on other grounds 9 F.3d 1159 (5th Cir.1993). Because the State and its educational agencies are proper Title VI defendants, they are subject to liability under the statute and its implementing regulations. In addition to prohibiting specific discriminatory actions, the regulations also impose an affirmative duty upon recipients who have a history of previous discrimination. This duty is expressed as follows: In administering a program regarding which the recipient has previously discriminated against persons on the ground of race, color, or national origin, the recipient must take affirmative action to overcome the effects of prior discrimination. 34 C.F.R. § 100.3(b)(6) (emphasis added). In summary, the State, the State Board, and the Department of Education are clearly subject to suit under Title VI. See Board of Pub. Educ. v. Georgia, No. CV 490-101, slip op. at 13-16 (S.D.Ga. Sept. 24, 1990); Dekalb County Sch. Dist. v. Rogers, No. 1:90-cv1769-WCO, slip op. at 8-11 (N.D.Ga. March 27, 1991). c. EEOA The EEOA, like Title VI, was enacted by Congress pursuant to its enforcement authority under § 5 of the Fourteenth Amendment. 20 U.S.C. § 1702(b); Castaneda v. Pickard, 648 F.2d 989, 1008 n. 9 (5th Cir.1981); Los Angeles Branch NAACP v. Los Angeles Unified Sch.Dist. 714 F.2d 946, 951 (9th Cir.1983), cert. denied, 467 U.S. 1209, 104 S.Ct. 2398, 81 L.Ed.2d 354 (1984). The EEOA expressly permits individuals who have been denied an “equal educational opportunity,” as defined in the EEOA, to sue state and local educational agencies in federal court. Like the employment discrimination statute interpreted by the Supreme Court in Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (19