The Supreme Court vacated and remanded this case1 for further consideration in light of its recent decision in Harlow & Butterfield v. Fitzgerald.2 The remand requires that we address the following question:3 Did appellees have "clearly established" statutory or constitutional duties to terminate federal funds to local law enforcement agencies allegedly known to be discriminating unlawfully on the basis of race and sex? The liability standard announced in Harlow entitles appellees to qualified immunity on summary judgment unless such clear duties existed.

Appellants allege that "termination" duties existed under Title VI of the Civil Rights Act of 1964, the Crime Control Act of 1973, and the due process clause of the fifth amendment. We find that such a duty was not clear under Title VI, but that clear duties to terminate funding existed under both the Crime Control Act and the fifth amendment. Accordingly, appellees are entitled to summary judgment with respect to appellants' claims for damages under Title VI, but not for the damage claims under either the Crime Control Act or the fifth amendment.

Appellants, six blacks and six women, filed this lawsuit on September 4, 1975. They alleged that federal agencies and officials had violated appellants' constitutional and statutory rights by continuing to provide financial assistance to local law enforcement agencies that discriminate on the basis of race and sex. They claimed that this continued funding violated, inter alia, Title VI of the Civil Rights Act of 1964 (Title VI),4 sections 518(c) and 509 of the Crime Control Act of 1973 (the Crime Control Act),5 and the due process clause of the fifth amendment (fifth amendment). Appellants sought declaratory and injunctive relief against the Law Enforcement Assistance Administration (LEAA),6 the Department of Justice, and four officials in those agencies. They also sought compensatory and punitive damages against the individual officials for alleged willful and knowing violations of their constitutional and statutory rights.7

On December 8, 1976, the district court granted appellees' motion for dismissal.8 The court held that plaintiffs' claims for declaratory and injunctive relief had "been rendered moot by virtue of the enactment of the Crime Control Act of 1976,"9 which altered the statutory duties in question.10 The court also held that appellants' damage claims against the individual officials were "barred by the doctrine of official immunity."11

The Supreme Court's subsequent decision in Butz v. Economou12 limited the scope of official immunity available to government officials. The Court held that as a general rule, federal officials are entitled only to a qualified immunity in suits alleging constitutional violations. To escape liability, a defendant official must establish a good faith basis and reasonable grounds for his conduct.13 The Court identified a limited exception to this general rule for administrative officials performing judicial and prosecutorial functions, reasoning that absolute immunity was necessary to protect discretionary prosecutorial decisions from the potentially distorting effect of threats of civil liability.14

On appeal of the district court's dismissal of the instant case, appellees argued that their discretion in administering the LEAA funds brought them within the narrowed realm of absolute immunity identified in Butz. Based on the mandatory language of the statute and appellees' constitutional duty not to use federal funds in a discriminatory manner, the court found the funding termination provisions to be mandatory, "outside the realm of discretion"15 and that absolute immunity was therefore inappropriate.16 Accordingly, the case was remanded for appellants to prove their claims and for appellees to demonstrate the factual basis for a qualified immunity.

Appellees petitioned for review to the Supreme Court and the Court granted certiorari. While the case was pending, the Court decided Harlow & Butterfield v. Fitzgerald,17 which significantly altered the law of official immunity. Shortly thereafter, the Court vacated our judgment in the instant case and remanded "for further consideration in light of Harlow & Butterfield v. Fitzgerald."18 We requested the parties to file supplemental briefs on the matter.

Harlow substantially altered the standards governing motions for summary judgment in cases involving claims of qualified immunity. However defined, qualified immunity strikes an uneasy balance between two competing concerns: (1) the need to protect individual rights from official abuse, and (2) the need to shield well-meaning officials "from potentially disabling threats of liability."19 The Court in Harlow reiterated that the latter concern requires quick resolution of insubstantial claims against government officials,20 and noted that the existing qualified immunity standard had not adequately accomplished this objective.

Prior to Harlow, summary judgment on questions of qualified immunity generally required both subjective and objective determinations. Summary judgment was denied if there was a factual dispute about whether an official "knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury ...."21 By alleging that an official acted with malicious intent or with a belief that a clear standard prohibited such conduct, plaintiffs could create a factual dispute that frequently required a subjective determination necessitating a trial. The need for such determinations thus frustrated the goal of terminating insubstantial lawsuits on summary judgment.22

Harlow adjusted the summary judgment standard to make it rely on objective factors. Under the new standard, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."23 On summary judgment, a court must first determine whether the rights allegedly violated were clearly established in the law.24 That determination is purely legal. If the court finds that the rights were clearly established, and that there is a genuine dispute over material facts, summary judgment must be denied. In subsequent proceedings, a defendant can still obtain qualified immunity by showing that because of "extraordinary circumstances" he neither knew nor should have known that his conduct was unlawful.25

Applying this standard to the instant case,26 we must determine whether appellees' failure to terminate funding to local law enforcement agencies violated statutory or constitutional duties clearly established at the time the failure occurred. We find that appellants' allegations, judged in their most favorable light, allege violations of statutory and constitutional rights which were clearly established at the time they allegedly occurred. Summary judgment is therefore denied.27

Appellants contend that appellees' failure to terminate funding to discriminatory agencies violated clear duties imposed on them by three independent sources of law.28 We consider each of these sources in turn.

Section 601 of Title VI prohibits recipients of federal financial assistance from engaging in racial discrimination:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.29

The Act also prescribes measures to be taken by federal funding agencies against recipients who disregard this prohibition.30 Of particular relevance is 42 U.S.C. § 2000d-1:

Compliance with any requirement adopted pursuant to this section may be effected (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement, ... or (2) by any other means authorized by law.

(emphasis added). Appellants contend that this provision imposed on appellees a clear duty to terminate funds to agencies that unlawfully discriminate.

On its face, however, the statutory language is not mandatory. Section 2000d-1 allows the funding agency to effect compliance through funding termination or "any other means authorized by law." Although fund termination was envisioned as the primary means of enforcement under Title VI,31 and although it has proven very effective as a deterrent to discrimination,32 Title VI clearly tolerates other enforcement schemes. Prominent among these other means of enforcement is referral of cases to the Attorney General, who may bring an action against the recipient.33 The choice of enforcement methods was intended to allow funding agencies flexibility in responding to instances of discrimination.34 Faced with this statutory discretion, we cannot say that appellees' failure to terminate funding violated a clearly established statutory duty under Title VI.

Adams v. Richardson,35 on which appellants rely heavily, does not establish clear law to the contrary. In that case, officials of the Department of Health, Education, and Welfare (HEW) insisted that enforcement of Title VI was entirely committed to agency discretion and that an agency's decision to rely on voluntary compliance was therefore unreviewable in the courts. The court rejected that contention, but did not suggest that termination was the only available means for securing compliance. The court noted that "[t]he Act sets forth two alternative causes of action by which enforcement may be effected,"36 and that a failed request for voluntary compliance "does not relieve the agency of the responsibility to enforce Title VI by one of the two alternative means contemplated by the statute."37 Thus, while Adams makes it clear that federal funding agencies must do something to effect compliance, it did not clearly establish that funding termination was required.38

In holding that appellees' failure to terminate funding did not violate clearly established duties under Title VI, we do not imply that appellees have complied with that statute. Appellants' allegations concerning appellees' efforts to enforce their civil rights mandate paint a less than exemplary picture.39 Compliance with Title VI might well have required appellees to pursue compliance more vigorously than they did, and injunctive relief may have been appropriate. But Title VI has been criticized as ineffective in securing civil rights, and such ineffectiveness has been attributed to the discretion in the statute precisely where appellants claim that there is none.40 Because of that discretion, it was not clear that Title VI duties would be violated by a failure to terminate funds. Appellees are therefore entitled to qualified immunity for any suit based on Title VI arising out of their failure to terminate funds.

The broad discretion over enforcement methods provided by Title VI is in sharp contrast to the mandatory language of the Crime Control Act. Section 518(c)(2) of the Act stated:

Whenever the Administration [LEAA] determines that a State government or any unit of general local government has failed to comply with [the nondiscrimination requirements], it shall notify the chief executive of the State of the noncompliance and shall request the chief executive to secure compliance. If within a reasonable time after such notification the chief executive fails or refuses to secure compliance, the Administration shall exercise [its funding termination powers],41 and is authorized concurrently with such exercise--

(A) to institute an appropriate civil action;

(B) to exercise the powers and functions pursuant to title VI of the Civil Rights Act of 1964 (section 2000d of this title); or

(C) to take such other action as may be provided by law.42

Congress enacted this statutory command in 1973, when it reviewed LEAA's initial grant of funds. In reviewing LEAA's civil rights enforcement efforts, Congress was struck by the agency's failure to follow the spirit of Title VI.43 The number of the agency's staff assigned to civil rights was criticized as entirely inadequate.44 Although LEAA had received numerous complaints of discrimination by recipients, it had never applied any sanctions and had never held a compliance hearing.45 Indeed, LEAA had never even promulgated procedures for such a hearing.46 Justice Department regulations governing LEAA expressed a preference for enforcement through judicial proceedings rather than fund termination,47 yet LEAA had apparently never referred a case to the Attorney General, and only rarely had intervened in private suits.48

Against this background, Congress created a set of more stringent enforcement requirements addressed specifically to LEAA's civil rights obligation.49 Congress explicitly rejected President Nixon's version of the bill, which merely stated that Title VI applies to LEAA.50 Instead, Congress adopted sections 509 and 518(c)(2), which outlined a mandatory enforcement scheme that relies on funding termination. By doing so, Congress explicitly prevented LEAA from relying on the Title VI option of "any other means authorized by law."

Representative Jordan, originator of the mandatory provision,51 described her amendment to the Act as follows:

The effect of my amendment ... is to require LEAA to first use the same enforcement procedure which applies to any other violation of LEAA regulations or statutes. That procedure of notification hearings and negotiations is spelled out in section 509, which provides the ultimate sanction of funding cutoff if compliance is not obtained.

This amendment was necessary to reverse LEAA's traditional reliance on court proceedings to correct discrimination, rather than undertaking administrative enforcement of civil rights requirements.52

Despite this statutory language and legislative history, appellees argue that the Crime Control Act provided them "broad enforcement discretion." Although their position is clearly exaggerated, some limited discretion under the statute does exist. Thus, LEAA must "determine" whether a recipient of LEAA funding has failed to comply with the statute's nondiscrimination provision and LEAA regulations. After notifying the recipient state's governor of the noncompliance, LEAA has to determine whether the governor has secured compliance "within a reasonable time." The administrator must then determine whether failure to comply is substantial, at which point some form of fund termination is mandatory.

These limited areas of discretion do not, however, render appellees' statutory obligation so unclear as to entitle them to qualified immunity as a matter of law. Appellants have alleged, with some support, that rampant discrimination existed among recipients of LEAA funds. Many recipient agencies were involved in lawsuits alleging unlawful discrimination.53 Other recipients reportedly pursued policies that constituted prima facie evidence of discrimination.54 The few compliance investigations conducted by LEAA allegedly turned up widespread noncompliance.55 If such allegations are true, LEAA's obligations were clear under the 1973 amendments to the Act. Notification of the state's governor was required, and funding termination proceedings were to be instituted in cases where voluntary compliance failed. Appellants have alleged that very few (perhaps only one) notices to governors were sent, and that funding termination proceedings were never brought prior to commencement of the instant suit. In the words of the House Committee on the Judiciary, "LEAA has never terminated payment of funds to any recipient because of a civil rights violation. Despite positive findings of discrimination by courts and administrative agencies, LEAA has continued to fund violators of the Act."56

Significantly, appellants' allegations of bad faith do not principally involve appellees' exercise of judgment in those areas where appellees contend the Act is ambiguous. Appellants' claims are not based on either appellees' application of the "reasonable time" allowance for effecting voluntary compliance, or the "substantial failure" determination that ultimately makes termination mandatory. Rather, the allegations involve principally the failure of LEAA officials to notify the governors of states where recipients were discriminating, and to institute administrative funding termination proceedings where they had determined that voluntary efforts would not succeed. The purpose of qualified immunity is to protect officials from liability where ambiguity in the law prevents them from knowing how properly to carry out their duties. We do not see how such ambiguity affected the appellees in this case.

It is true, of course, that the enforcement procedures of 518(c)(2) only begin "[w]henever the Administration [LEAA] determines" that a failure to comply exists. This language does not mean, however, that LEAA could avoid its enforcement obligations by refusing to "determine" that noncompliance existed. It is one thing for an agency to proceed cautiously because of the possible consequences of terminating funds. It is something quite different to abdicate the civil rights enforcement role that Congress clearly intended LEAA to play. Appellants have alleged and provided some support showing that unlawful discrimination among funded agencies was rampant and that LEAA officials were aware of that fact. A wholesale refusal to make the determinations clearly contemplated by the Act might well defeat a claim of good faith.

In addition to any statutory duties appellees may have had, appellants assert that appellees had a constitutional duty not to fund local law enforcement agencies known to be discriminating. Appellants derive this duty from the due process clause of the fifth amendment, which makes applicable to the federal government the equal protection limitations that the fourteenth amendment places on the actions of states. Although appellants will have the burden of establishing several difficult issues of fact,57 it is a clearly established principle of constitutional law that the federal government may not fund local agencies known to be unconstitutionally discriminating.

Equal protection principles bar federal officials, like state officials, from engaging in racial discrimination.58 This constitutional obligation applies not just to direct involvement, but also to government "support" of discrimination "through any arrangement, management, funds or property."59 Activities that the federal government could not constitutionally participate in directly cannot be supported indirectly through the provision of support for other persons engaged in such activity.60 This prohibition encompasses various forms of support that are much less direct than the funding involved in this case.61

Appellants contend that because their purpose in funding law enforcement agencies is the constitutionally permissible goal of promoting law enforcement, the fact that recipients of their funds discriminate does not make the funding itself unconstitutional. It is clear, however, that a government entity may not fund a discriminating entity simply because the government's purpose is benevolent. In Norwood v. Harrison,62 a case examining the constitutionality of a state providing free textbooks to private schools that practice racial discrimination, the Court emphatically stated, "good intentions as to one valid objective do not serve to negate the State's involvement in violation of a constitutional duty."63

Appellants suggest that these firm constitutional principles, reiterated in Norwood, were tacitly changed by the Supreme Court opinions in Personnel Administrator of Massachusetts v. Feeney,64 and Washington v. Davis.65 These cases held that government action that has only a discriminatory effect does not constitute a violation of equal protection guarantees. To establish such a violation, it must also be shown that the government action had an invidiously discriminatory purpose. Appellees contend that the holdings in these cases make it constitutionally permissible for the federal government to fund discriminating agencies so long as the federal government's purpose is not the furtherance of discrimination.66

Feeney and Davis addressed completely different issues from the one addressed in Norwood, and we do not accept the contention that they implicitly overruled the longstanding principles on which Norwood is based. Feeney and Davis both involved facially neutral government practices that allegedly had a disparate impact on Blacks (Davis) and women (Feeney).67 The issues presented were whether disparate impact alone could render unconstitutional a government practice that is neutral on its face. The Court found that such practices were not unconstitutional.

In contrast, Norwood is just a recent example of a long line of cases concerning the constitutionality of government involvement in practices which the fifth and fourteenth amendments prohibit the government from engaging in directly.68 The proper inquiry is whether the relationship between the government and the activity in question is of such nature that the activity will be treated as an action of the government. If so, the issue is whether the government could directly engage in the activity consistent with the Constitution. If not, the government involvement is unconstitutional, regardless of its purpose.69 We do not suppose that the Supreme Court implicitly changed these firm principles sub silentio in Feeney and Davis.70

The distinction between Feeney and Davis and Norwood can be illustrated with reference to the instant case. Appellants allege that agencies receiving LEAA funds practiced unconstitutional discrimination. Feeney and Davis make clear that for such to be true, the discrimination must be purposeful. If such discrimination does exist, however, the issue then becomes whether funding is a form of involvement that requires us to impute the actions and motives of the local agencies to the federal government. Although some forms of government involvement are sufficiently indirect and complex that they require a careful balancing of factors,71 the constitutional prohibition on intentional discrimination clearly prohibits the government from funding other agencies engaged in such practices.72

A constitutional violation, moreover, does not arise only when it can be shown that discrimination would not have occurred in the absence of federal funds. As the Court in Norwood stated about aid to racially segregated schools, "the Constitution does not permit the state to aid discrimination even when there is no precise causal relationship between state financial aid to a private school and the continued well-being of that school."73 Thus, in order to establish that a violation has occurred, appellants need not show that a particular instance of discrimination would not have occurred in the absence of federal funding.74 Such a showing may be relevant in calculating damages, if any, but not to the initial question of whether a violation has occurred.

In stating these principles, two important clarifications are in order. First, the equal protection principles embodied in the fifth amendment only prohibit federal funding of unconstitutional discrimination. Statutory and regulatory schemes may prohibit various forms of discrimination that are not constitutionally prohibited.75 To the extent that appellees' duty to terminate funds is based on constitutional equal protection guarantees, that duty only extends to the funding of local agencies engaged in unconstitutional discrimination.

Second, appellees' clearly established duty to terminate funds only existed with respect to recipients that appellees knew or should have known76 were engaged in ongoing unconstitutional discrimination.77 Such a knowledge requirement is consistent with the purpose of qualified immunity, which is to protect government officials whose limited knowledge prevents them from conducting their duties without committing occasional honest mistakes. The appropriate inquiry involves both a subjective and objective examination of the extent of appellees' knowledge. Such a subjective inquiry is not inconsistent with Harlow, which only precludes a subjective inquiry prior to finding that the state of the law allegedly violated was clear. Appellants can use whatever evidence is available through discovery to establish that appellees knew a particular recipient of funds was unconstitutionally discriminating.

Under the Harlow standard, appellees are entitled to summary judgment regarding appellants' claims for damages under Title VI. With respect to the damage claims under the Crime Control Act and the fifth amendment, however, appellants have alleged violations of "clearly established statutory and constitutional rights." For that reason, we adhere to our rejection of appellees' claim of qualified immunity at this stage of the proceeding. The case is remanded to the district court for further proceedings.

So ordered.

For the reasons stated in my prior dissenting opinion in this case, 631 F.2d at 791-94, I would hold that the individual defendants are protected by absolute immunity. Accordingly, I respectfully dissent from the majority opinion. Because the Harlow standard for qualified immunity does not affect my position on the defendant's absolute immunity, I need not discuss Harlow.