893 F.2d 732: Jake Ayers, Sr., et al., Plaintiffs, Jake Ayers, Jr., Bennieg. Thompson, Leola Blackmon, Lillie Blackmon,louis Armstrong, Darryl C. Thomas Andleon Johnson, Plaintiffs-appellants,andunited States of America, Intervenor-appellant, v. William Allain, Governor, State of Mississippi, et al.,defendants-appellees
United States Court of Appeals, Fifth Circuit. - 893 F.2d 732
Feb. 6, 1990
Robert Pressman, Center for Law & Educ., Cambridge, Mass., Alvin O. Chambliss, Jr., Oxford, Miss., for Ayers, et al.
Linda F. Thome, Jessica Dunsay Silver, Nathaniel Douglas, John R. Moore, Levern M. Younger, Franz R. Marshall, and Zita Johnson-Betts, U.S. Dept. of Justice, Civ. Rights Div., Educ., Opportunities Litigation, Sec., Washington, D.C., for the U.S.
Mike Moore, Atty. Gen., Paul Stephenson, William F. Goodman, Jr., Ed Davis Noble, Jr., Jackson, Miss., for defendants-appellees.
Appeals from the United States District Court for the Northern District of Mississippi.
Before GOLDBERG, JOHNSON and DUHE, Circuit Judges.
GOLDBERG, Circuit Judge:
" 'The time has come,' the Walrus said, 'To talk of many things:
Of shoes--and ships--and sealing wax--Of Cabbages--and kings--
And why the sea is boiling hot--and whether pigs have wings.' "1
We'll sit and chat of times gone by, and visit with the queens
Brown, and, Sweatt and Meredith not to mention the fertile Green
And then we'll see why Ayers should fly and how equality is king!
Today we write an opinion concerning a class action lawsuit involving the public universities of Mississippi. The question is whether the racial identity of these institutions results from the free choice of the students or from state policies and practices.
A group of plaintiffs filed this lawsuit against the Governor of Mississippi, the Board of Trustees of State Institutions of Higher Learning of the State of Mississippi, the Commissioner of Higher Education, and other state officials in January, 1975. These private plaintiffs consists of a class certified by the district court as:
all black citizens residing in Mississippi, whether students, former students, parents, employees or taxpayers, who have been, are, or will be discriminated against on account of race in receiving equal educational opportunity and/or equal employment opportunity in the universities operated by said Board of Trustees.2
They have alleged that the defendants were maintaining and perpetuating a racially dual system of public higher education in violation of the equal protection clause of the fourteenth amendment and Title VI of the Civil Rights Act of 1964.
The United States intervened as a plaintiff shortly thereafter making identical allegations. The private plaintiffs and the United States, collectively referred to as "the plaintiffs," seek an injunction directing the defendants to eliminate all vestiges of the racially segregated system of higher education in Mississippi.
The defendants answered the plaintiffs' allegations arguing that the existence of predominantly one race universities does not violate the equal protection clause because Mississippi has implemented, in good faith, a nondiscriminatory admissions and operations policy. The defendants believe that the identifiability of the universities by the racial composition of the student population results from the free and unfettered choice of the students themselves.
In the spring of 1987, a five week trial was conducted in Oxford, Mississippi following twelve years of pretrial preparation. The record consists of 4,400 pages of trial testimony and approximately 2000 exhibits. At the end of 1987, the district court ruled for the defendants on the issue of liability and dismissed the plaintiffs' case.3 The plaintiffs appeal.
The Mississippi university system consists of eight institutions and several entities under the plenary power of a Board of Trustees (the "Board").4 These universities were segregated by race through the spring of 1962, contrary to the Supreme Court's 1954 mandate in Brown v. Board of Education,5 when our court forced the University of Mississippi to admit its first black student, James Meredith.6 Prior to the admission of Meredith, no black students attended any of the historically white universities and no white students attended any of the historically black universities. The historically white universities were: (1) the University of Mississippi; (2) Mississippi State University; (3) the University of Southern Mississippi; (4) Mississippi University for Women; and, (5) Delta State University. The historically black universities were what are now known as: (1) Jackson State University; (2) Alcorn State University; and, (3) Mississippi Valley State University.
At the time of the Meredith decision, the Board had implemented segregative policies encompassing: (1) student enrollment; (2) the maintenance of branch centers by the historically white universities in close proximity to the historically black universities; (3) the employment of faculty and staff; (4) facility provision and condition; (5) the allocation of financial resources; (6) academic program offerings; and, (7) the racial composition of the Board and its staff.7 The Board did not permit black students to enroll at any of the historically white universities under its auspices.8 The years each of the historically white universities first enrolled a black student are as follows:
Similarly, white students did not attend a historically black university until the late 1960's:
Alcorn State University ................ 1966 Jackson State University ............... 1969 Mississippi Valley State University .... 1970
The racial identification of Mississippi's public universities continues to the present day. Undergraduate programs included the following percentages of black enrollment between the years 1973-74 and 1985-86:
197374 198081 198586
Historically White Institutions
9. * The figure for Mississippi State University for 197374 is an average
derived from 197273 and 197475 data because data for 197374 are not
Note availablle. Delta State University 14.3 17.1 17.59 Mississippi State University 5.6 * 11.2 11.0 Mississippi University for Women 9.9 19.3 18.0 University of Mississippi 3.5 7.0 5.9 University of Southern Mississippi 4.5 11.3 14.24 Historically Black Institutions Alcorn State University 99.7 96.9 95.6 Jackson State University 99.6 95.2 91.9 Mississippi Valley State University 99.7 99.8 99.3
The racial composition of the graduate programs reflects a similar pattern.
197374 198081 198586
Historically White Institutions
10. ** In 198586, Jackson State University enrolled 59% black, 13.3% white,
and 27.7% other-race pupils. For 197374, Mississippi State University and
the University of Southern Mississippi are averages of 197273 and 197475
Note data because 197374 data are not available. Delta State University 41.6 38.3 26.2 Mississippi State University 12.8 ** 9.6 8.0 Mississippi University for Women 14.5 18.0 13.0 University of Mississippi 7.6 8.4 7.5 University of Southern 9.2 ** 8.7 8.1 Mississippi Historically Black Institutions Alcorn State University 0 99.4 96.0 Jackson State University 91.8 85.3 59.0** Mississippi Valley State 0 94.7 96.7 University
Ayers v. Allain, 674 F.Supp. 1523, 1526 (N.D.Miss.1987)
The Board, created in 1932, is the governing body of all of the state universities in Mississippi. The Board consists of 13 members. From 1932 to 1972, the members of the Board were all white. At the time of trial in 1987, three of the thirteen members were black
The governor of Mississippi, with the consent of the Mississippi Senate, appoints twelve members of the Board. Ten must reside in the geographical district that they represent. The other two are chosen at-large from the state. Members serve staggered twelve year terms so that every four years four seats are open for selection.
In addition, a special seat belonging to the University of Mississippi alone, designated the LaBauve Fund seat, has a four year tenure so that the seat is available at the same time one-third of the Board turns over. The month before the district court issued its opinion, the people of Mississippi abolished by popular vote the LaBauve Fund seat. The governor appointed and the senate confirmed four white trustees and one black trustee for the end-of-term vacancies which occurred in 1972, 1976, 1980, and 1984. For intra-term vacancies, the appointments have always been white trustees.
347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954)
In 1962, Judge Wisdom, writing for our Court, ordered the University of Mississippi to admit a black transfer student named James Meredith. Meredith v. Fair, 305 F.2d 341 (5th Cir.1962). Meredith was a student at Jackson State College when he applied for admission to the University of Mississippi in January, 1961. He sought transfer because he found Jackson State College to be substandard. The University of Mississippi denied his admission application and in response Meredith filed suit in federal district court. Judge Wisdom wrote: "[t]he efforts of the Board of Trustees [of the State Institutions of Higher Learning] and the officials of the University of Mississippi together with various state officials, including the Governor and the Lieutenant Governor of the state of Mississippi, and the Mississippi Legislature to impede and deter efforts to integrate the student body at the University of Mississippi during the 1961-62 school year are well documented."
Ayers, 674 F.Supp. at 1551
Id. at 1529
University of Mississippi ............. 1962 Mississippi State University .......... 1965 Mississippi University for Women ...... 1966 University of Southern Mississippi .... 1967 Delta State University ................ 1966
Ayers, 674 F.Supp. at 1555
The record suggests that the availability of the high risk exceptions at the historically white schools were not well publicized in their recruiting materials. The president of the University of Southern Mississippi testified that he was reluctant to advertise the existence of the exceptions, and that the University of Southern Mississippi did not encourage applicants with less than 15 on the ACT to apply. Students with scores below 15 were automatically rejected. Their record was then reviewed at a later time in the spring or summer to determine if a department had requested a particular student's admission
The other historically white schools do not appear to admit large numbers of students with ACT scores below 15. In 1986, applicants with less than a 15 composite score on the ACT accounted for approximately nine percent of the entering class at Delta State University; approximately five percent at Mississippi State University; approximately four percent at the University of Mississippi, and zero percent at Mississippi University for Women. In contrast, over 50% of the freshmen admitted to each of the historically black institutions that year scored less than 15 on the ACT.
In 1985-86, roughly 7 of 10 white high school graduates and 3 of 10 black high school graduates scored 15 or higher on the ACT
Board exhibit 186 at 6-7 (emphasis added)
Plaintiff exhibit 350
Only 60 of the 2,563 faculty employed by the historically white institutions during the 1985-86 school year were black. Yet Dr. Lucious Williams, Assistant Vice Chancellor for Academic Affairs, maintained that the University of Mississippi, from about 1983-86, kept a minority faculty vita bank with about 200 vita on file on an annual basis
There also appears to be a disparity between the extent of the faculty's education at the historically white institutions and the historically black institutions:
Historically White Institutions*
Total % Full Professors % Instructors % with Doctorate UM 673 25.9% 24.4% 59.0% MSU 895 42.8 6.5 70.0 USM 675 26.4 12.9 64.4 DSU 203 32.0 20.7 52.7 MUW 129 35.7 14.0 52.7
Historically Black Institutions**
Total % Full Professors % Instructors % with Doctorate JSU 359 22.6% 16.7% 64.9% ASU 174 10.9 43.1 46.6 MVSU 138 18.8 21.7 42.0 *
The acronyms for the historically white institutions are: (1) UM for the
University of Mississippi; (2) MSU for Mississippi State University;
(3) USM for the University of Southern Mississippi; (4) DSU for Delta
State University; and (5) MUW for Mississippi University for Women
United States exhibit 694(q)
Historically White Institutions:
197980 198687 University of Mississippi $20,794 $30,757 Mississippi State University 21,153 31,957 University of Southern Mississippi 19,817 31,964 Mississippi University for Women 17,836 26,507 Delta State University 17,265 26,213
Historically Black Institutions:
197980 198687 Jackson State University $18,047 $26,669 Alcorn State University 16,019 21,291 Mississippi Valley State University 15,546 22,746
Ayers, 674 F.Supp. at 1563
Id. at 1537
Id. at 1538
United States Exhibit 1 at page 12
One objective of the Plan was to increase the employment of black administrators. At the historically white institutions, six of the 393 administrators (1.5%) were black at the time of the Plan. In 1983, nine years after the Plan was enacted, the percentage of black administrators for each institution was as follows:
Historically White Institutions:
University of Mississippi 2.9% Mississippi State University 0.7% University of Southern Mississippi 2.0% Mississippi University for Women 0.0% Delta State University 0.0% Historically Black Institutions: Jackson State University 94.1% Alcorn State University 96.7% Mississippi Valley State University 92.5%
Moreover, in 1986, at the highest administrative levels, the historically white institutions reported 22 officers, who were all white, despite a turnover of 15 positions since 1981. The historically black institutions had nine black officers and one white officer.
Disparities in program offerings between the historically black institutions and the historically white institutions continued to exist in 1985 and 1986 despite the promise of the Plan to give the historically black institutions priority for new programs. From 1975-86, the historically black institutions ranked lowest in the number of new programs approved by the Board:
Mississippi State University 22 Mississippi University for Women 17 University of Southern Mississippi 16 Jackson State University 15 Delta State University 15 University of Mississippi 14 Mississippi Valley State University 6 Alcorn State University 2
Although an institution's refusal or failure to request new programs could affect these rankings, they suggest that the Board did not make an affirmative effort to place new programs at the historically black universities.
In 1986, the institutions ranked as follows among other criteria:
Historically White Institutions Historically Black
Institutions
Historically White Historically Black
Institutions Institutions
Criteria UM MSU USM DSU MUW JSU ASU MVSU
------------- ----------------------------------- ---------------------------
Number of 3 1 2 4 7 5 6 8
Bachelor
Programs
Number of 1 2 2 5 7 4 6 7
Graduate
Programs
Total 2 1 3 5 7 4 6 8
Programs
Fields- 2 2 1 4 6 5 6 8
Bachelors
Fields- 2 3 1 5 7 4 5 7
Masters
Fields- 1 3 2 4 -- 4 -- --
Doctorate
Library 3 2 1 6 5 4 7 8
Volumes
Percentage of 2 1 4 3 7 5 5 8
Faculty with
Doctorate
Percentage of 1 2 4 5 8 3 6 6
Faculty with
Degree from
Research
University
Average 1 2 5 4 2 7 5 8
ACT Score
See supra note 16 for the meaning of the acronyms.
In contrast, necessary duplication refers to the idea that every campus needs to teach basic courses fundamental to a proper education. Core subjects such as English, Mathematics, and History are thus not counted in determining "unnecessary" program duplication
Ayers, 674 F.Supp. at 1541
Id
Id
Id
Id. at 1551
Id. at 1542
Id
Id
Id
Meredith took judicial notice of this practice in 1962. Id. at 1551
Dr. Larry Leslie, the U.S. expert on funding, testified that the predominantly white institutions receive and spend more money on a per student basis. Dr. Leslie's analysis included revenues generated by more recent Board policies and practices which the district court found more favorable to the historically black institutions
Ayers, 674 F.Supp. at 1551
Id. at 1547
Id. at 1561-62
Id. at 1548-50. The district court focused on square footage per student. Id. This measure, however, does not account for the quality, usefulness, efficiency, or, perhaps most importantly, the aesthetics of a structure. A large warehouse with concrete floors and tin walls may have the same square footage as the British Museum but that does not give the two facilities the same potential to pleasurably exhibit art
Id. at 1549
391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968)
Id. at 438, 88 S.Ct. at 1694
Ayers, 674 F.Supp. at 1554
In a footnote in his dissent, Justice Douglas stated that the district court's rationale that the duty to desegregate a university system should be more narrow than the duty to desegregate an elementary school system "is on its face an amazing statement as the forerunners of Brown v. Board of Education....were cases involving higher education. See Missouri ex rel. Gaines v. Canada, ... Sweatt v. Painter, ...[and] McLaurin v. Oklahoma State Regents for Higher Education."
ASTA 289 F.Supp. at 788
Id
478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986)
Id. at 407-09, 106 S.Ct. at 3012-13
Id
Id. at 408, 106 S.Ct. at 3013
Ayers, 674 F.Supp. at 1553
801 F.2d 799 (6th Cir.1986)
Id. at 804
163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896)
Id. at 804
Id. at 805; See Green 391 U.S. at 430, 88 S.Ct. at 1689 and Geier v. University of Tenn., 597 F.2d 1056 (6th Cir.1979)
Bazemore, 478 U.S. at 407, 106 S.Ct. at 3012
Geier, 801 F.2d at 805
Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208 (1938); McLaurin v. Oklahoma State Regents for Higher Educ., 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149 (1950); Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114 (1950); Brown, 347 U.S. at 483, 74 S.Ct. at 686. Similarly, we disagree with the three judge district court in United States v. Louisiana, 692 F.Supp. 642, 656 (E.D.La.1988) to the extent, and only to the extent, it borrowed this portion of the Geier analysis to distinguish Bazemore
Plessy, 163 U.S. at 537, 16 S.Ct. at 1138; Missouri ex rel. Gaines, 305 U.S. at 337, 59 S.Ct. at 233; Sweatt 339 U.S. at 629, 70 S.Ct. 848; McLaurin, 339 U.S. at 637, 70 S.Ct. at 851
Plessy, 163 U.S. at 550, 16 S.Ct. at 1143
Id. at 551, 16 S.Ct. at 1143 (emphasis added)
E. Foner, Reconstruction--America's Unfinished Revolution 1864-1877 xxv-xxvii (1988) (emphasis added)
305 U.S. 337, 59 S.Ct. 232
Missouri ex rel. Gaines, 305 U.S. at 349, 59 S.Ct. at 232
Sweatt, 339 U.S. at 629, 70 S.Ct. at 848
McLaurin, 339 U.S. at 637, 70 S.Ct. at 851
Sweatt, 339 U.S. at 631, 70 S.Ct. at 849
Id
Id. at 631-32, 70 S.Ct. at 849
Id. at 632, 70 S.Ct. at 849
Id. at 633, 70 S.Ct. at 850
Id. at 632, 70 S.Ct. at 849
Id. at 634-35, 70 S.Ct. at 850-51
McLaurin, 339 U.S. at 638, 70 S.Ct. at 852
Id
Id
Id
Id. at 640, 70 S.Ct. at 853. The University altered the conditions under which Mr. McLaurin attended school in the interval between the decision of the district court and the oral argument in the Supreme Court. The "section of the classroom in which appellant sat was surrounded by a rail on which there was a sign stating, 'Reserved for Colored,' but these have been removed. [At the time of oral argument, McLaurin was] assigned to a seat in the classroom in a row specified for colored students; he [was] assigned to a table in the library on the main floor; and he [was] permitted to eat at the same time in the cafeteria as other students, although here again he [was] assigned to a special table." Id
Id
Id
Sweatt, 339 U.S. at 634, 70 S.Ct at 850
McLaurin, 339 U.S. at 641, 70 S.Ct. at 853
Id. at 641-42, 70 S.Ct. at 853-54
Charles Sumner made a similar argument in 1850 that failed to carry the day. In Brown, Chief Justice Warren attributed the phrase "separate but equal" in Plessy to a Massachusetts case that involved segregated schools in Boston, Massachusetts. Roberts v. City of Boston, 59 Mass. 198, 5 Cush. 198 (1850). In Roberts, Charles Sumner advocated the cause of five year old Sara Roberts before the Massachusetts Supreme Court, over ten years before the Civil War, arguing that Boston's segregation of black children branded them with a stigma of inferiority. Roberts, 59 Mass. at 203-04. In addition, Sumner argued that segregation injured white school children because their "hearts, while yet tender with childhood, are necessarily hardened by this conduct, and their subsequent lives, perhaps, bear enduring testimony to this legalized uncharitableness." See R. Kluger, Simple Justice 75-77 (1977)
Brown v. Board of Educ., 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (Brown II )
Id. at 300, 75 S.Ct. at 756. "To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a non-racial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems." Id. at 300-01, 75 S.Ct. at 756-57
Green, 391 U.S. at 430, 88 S.Ct. at 1690
Id. at 437-38, 88 S.Ct. at 1693-94
Id. at 435-36, 88 S.Ct. at 1692-93. See also Dayton Board of Educ. v. Brinkman, 443 U.S. 526, 537, 99 S.Ct. 2971, 2979, 61 L.Ed.2d 720 (1979) ("Given intentionally segregated schools in 1954, however, the Court of Appeals was quite right in holding that the Board was thereafter under a continuing duty to eradicate the effects of that system...."); Columbus Board of Educ. v. Penick, 443 U.S. 449, 460, 99 S.Ct. 2941, 2948, 61 L.Ed.2d 666 (1979) ("The Board's continuing affirmative duty to disestablish the dual system is therefore beyond question."); Milliken v. Bradley, 433 U.S. 267, 289-90, 97 S.Ct. 2749, 2761-62, 53 L.Ed.2d 745 (1977) ("More precisely, the burden of state officials is that set forth in Swann [v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) ]--to take the necessary steps to 'eliminate from the public schools all vestiges of state-imposed segregation.' "); Keyes v. School Dist. No. I, Denver, Colo., 413 U.S. 189, 200, 93 S.Ct. 2686, 2693, 37 L.Ed.2d 548 (1973) ("Rather, we have held that where plaintiffs prove that a current condition of segregated schools exists within a school district where a dual system was compelled or authorized by statute at the time of our decision in Brown ... the State automatically assumes an affirmative duty to 'effectuate a transition to a racially nondiscriminatory school system....' ") (citing Brown I, 347 U.S. at 483, 74 S.Ct. at 686); Alexander v. Holmes County Board of Educ., 396 U.S. 19, 20, 90 S.Ct. 29, 29, 24 L.Ed.2d 19 (1969) (per curiam ) ("Under explicit holdings of this Court the obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools.")
Ayers, 674 F.Supp. at 1551-54
Id
Id. at 1552-53
Green, 391 U.S. at 439, 88 S.Ct. at 1694
Plessy, 163 U.S. at 551, 16 S.Ct. at 1143 (emphasis added)
Ayers, 674 F.Supp. at 1555
Mississippi's ACT policy could discourage potential black students from applying to the historically white universities. Cf. Dothard v. Rawlinson, 433 U.S. 321, 330, 97 S.Ct. 2720, 2727, 53 L.Ed.2d 786 (1977) ("The application process might itself not adequately reflect the actual potential applicant pool, since otherwise qualified people might be discouraged from applying because of a self-recognized inability to meet the very standards challenged as being discriminatory.")
See supra note 12
See supra note 25
Ayers, 674 F.Supp. at 1551
Id
Id
The United States intervened under 42 U.S.C. section 2000h-2 (1989) three months after the private plaintiffs filed their complaint against the state of Mississippi. This provision entitles the United States to the relief that it would have obtained if it had initiated the action
42 U.S.C. section 2000d et seq. (amended Oct. 21, 1986, Pub.L. 99-506, Title X, section 1003, 100 Stat. 1845; Mar. 22, 1988, Pub.L. 100-259, Title VI, section 606, 102 Stat. 31)
34 C.F.R. sections 100.1-100.13 (1988)
42 U.S.C. section 2000d (1981)
Ayers, 674 F.Supp. at 1551 n. 7
42 U.S.C. section 2000d-4a (1989) (entitled " 'Program or activity' defined"). We do not have to decide whether the plaintiff's must prove discriminatory intent instead of discriminatory impact. Alexander v. Choate, 469 U.S. 287, 293, 105 S.Ct. 712, 716, 83 L.Ed.2d 661 (1985) (Title VI itself reaches only instances of intentional discrimination although the implementing regulations could allow a disparate impact analysis.). Cf. Guardians Ass'n v. Civil Service Comm'n of the City of N.Y., 463 U.S. 582, 607, n. 27, 103 S.Ct. 3221, 3235, n. 27, 77 L.Ed.2d 866 (1983) (Proof of intentional discrimination is necessary for the recovery of compensatory damages although only proof of discriminatory impact is necessary in a suit to enforce the regulations adopted under Title VI.). Our case involves past intentional discrimination continuing to the present through a breach of the affirmative duty placed on the state by Green
465 U.S. 555, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984)
Id. at 570-76, 104 S.Ct. at 1219-23
Id. at 563-70, 104 S.Ct. at 1216-19
Pub.L. 100-259, 102 Stat. 28, 42 U.S.C. section 2000d-4a (1988)
42 U.S.C. section 2000d-4a(2)(A) (1988)
Id
See Bonner v. Arizona Dept. of Corrections, 714 F.Supp. 420, 422 (D.Ariz.1989) (Civil Rights Restoration Act of 1987 applies retroactively); United States v. Berg, 710 F.Supp. 438, 442 (E.D.N.Y.1989) ("[W]here Congress clearly indicates its intention to reject a recent Supreme Court interpretation and restore the law to its former state, retroactive application of a newly enacted statute is appropriate."); Leake v. Long Island Jewish Medical Center, 695 F.Supp. 1414, 1417-18 (E.D.N.Y.1988) (Terms "program or activity" in the Civil Rights Restoration Act of 1987 apply retroactively) aff'd, 869 F.2d 130 (2nd Cir.1989); Mrs. W. v. Tirozzi, 832 F.2d 748, 755 (2nd Cir.1987) ("The 1986 amendment in the present case [the Handicapped Children's Protection Act of 1986] simply codifies a congressional purpose long in place which Congress believed the Supreme Court had misinterpreted" so the plaintiffs could bring suit under the Act even though the Act was passed one year after the suit was brought.)
Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 380-81, n. 6, 89 S.Ct. 1794, 1801-02, n. 6, 23 L.Ed.2d 371, n. 6 (1969); Glidden v. Zdanok, 370 U.S. 530, 541, 82 S.Ct. 1459, 1468, 8 L.Ed.2d 671 (1962) (opinion of Mr. Justice Harlan, joined by Mr. Justice Brennan and Mr. Justice Stewart); Federal Housing Admin. v. Darlington Inc., 358 U.S. 84, 90, 79 S.Ct. 141, 145, 3 L.Ed.2d 132 (1958)
There was no house report
S.Rep. No. 100-64, 100th Cong., 2d Sess. 2-5, reprinted in 1988 U.S. Code Cong. & Admin.News 3-7 (bill introduced "to overturn the Supreme Court's 1984 decision in Grove City College v. Bell ... and to restore the effectiveness and vitality of the four major civil rights statutes that prohibit discrimination in federally assisted programs.")
N.L.R.B. Hendricks County, 454 U.S. 170, 177, 102 S.Ct. 216, 222, 70 L.Ed.2d 323 (1981); N.L.R.B. v. Bell Aerospace, 416 U.S. 267, 274-75, 94 S.Ct. 1757, 1761-62, 40 L.Ed.2d 134 (1974); Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965)
In addition, Public Law 100-259 does not have an effective date, this is unusual
