The Assoc. of Mexican Am. Educators v. State, MEXICAN-AMERICAN

• Decision Date: 30 October 2000
• Docket Number: Nos. 96-17131,ASIAN-PACIFIC,97-15422,MEXICAN-AMERICAN,s. 96-17131
• Citation: 231 F.3d 572
• Parties: (9th Cir. 2000) THE ASSOCIATION OFEDUCATORS ("AMAE"); CALIFORNIA ASSOCIATION FORBILINGUAL EDUCATION ("CAFABE"), on behalf of themselves, their members, and all others similarly situated; OAKLAND ALLIANCE OF BLACK EDUCATORS ("OABE"), on behalf of themselves, their members, and all others similarly situated; SARA MACNEIL BOYD;SAM GENIS; TOUA YANG; BOB WILLIAMS; MARTA LECLAIRE; ANTOINETTE WILLIAMS; DIANA KWAN; and AGNES HAYNES, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants/ Cross-Appellees, v. STATE OF CALIFORNIA; THE CALIFORNIA COMMISSION ON TEACHER CREDENTIALING, Defendants-Appellees/ Cross-Appellants
• Court: U.S. Court of Appeals — Ninth Circuit

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231 F.3d 572 (9th Cir. 2000) THE ASSOCIATION OF MEXICAN-AMERICAN EDUCATORS ("AMAE"); CALIFORNIA ASSOCIATION FOR ASIAN-PACIFIC BILINGUAL EDUCATION ("CAFABE"), on behalf of themselves, their members, and all others similarly situated; OAKLAND ALLIANCE OF BLACK EDUCATORS ("OABE"), on behalf of themselves, their members, and all others similarly situated; SARA MACNEIL BOYD;SAM GENIS; TOUA YANG; BOB WILLIAMS; MARTA LECLAIRE; ANTOINETTE WILLIAMS; DIANA KWAN; and AGNES HAYNES, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants/ Cross-Appellees,
v.
STATE OF CALIFORNIA; THE CALIFORNIA COMMISSION ON TEACHER CREDENTIALING, Defendants-Appellees/ Cross-Appellants. Nos. 96-17131, 97-15422 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted June 20, 2000
Filed October 30, 2000

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John T. Affeldt, Public Advocates, Inc., San Francisco, California, for the plaintiffs-appellants/appellees.

R. Lawrence Ashe, Jr., and Eric J. Taylor, Paul, Hastings, Janofsky & Walker, LLP, Atlanta, Georgia; and William Lockyer, Attorney General, and Stephanie Wald, Deputy Attorney General, San Francisco, California, for the defendants-appellees/appellants.

Stewart Weinberg, Van Bourg, Weinberg, Roger & Rosenfeld, Oakland, California; Paul J. Dostart, Dostart Clapp Sterrett & Coveney, LLP, San Diego, California; Martin Bienstock, Assistant Attorney General, New York, New York; Peter Roos, San Francisco, California; and Gregory B. Friel and Jennifer Levin, United States Department of Justice, Washington, D.C., for the amici.

Appeals from the United States District Court for the Northern District of California William H. Orrick, Jr., District Judge, Presiding. D.C. No.CV-92-03874-WHO

Before: Procter Hug, Jr., Chief Judge, and Mary M. Schroeder, Stephen Reinhardt, Diarmuid F. O'Scannlain, Ferdinand F. Fernandez, Pamela Ann Rymer, Andrew J. Kleinfeld, A. Wallace Tashima, Sidney R. Thomas, Susan P. Graber, and Ronald M. Gould, Circuit Judges.

Opinion by Judge Graber; Partial Concurrence and Partial Dissent by Judge Reinhardt; Partial Concurrence and Partial Dissent by Judge Fernandez; Partial Concurrence and Partial Dissent by Judge Kleinfeld; Partial Concurrence and Partial Dissent by Judge Gould; Dissent by Judge Tashima

GRABER, Circuit Judge:

Plaintiffs are a class of Mexican-American, Asian American, and African-American educators and would-be educators in California. They appeal from an adverse judgment in their action against the State of California and its agency, challenging (1) the district court's holding that the California Basic Education Skills Test ("CBEST"), which is a prerequisite to employment in a variety of positions in the California public schools, violates neither Title VI nor Title VII of the Civil Rights Act of 1964, and (2) the district court's use of a technical advisor at trial. Defendants cross-appeal from the district court's rulings, on summary judgment, that Title VI and Title VII apply in this case. Defendants also appeal from the district court's order denying their request for costs. For the reasons that follow, we hold that Title VII applies to the CBEST; that the CBEST was validated properly; that the district court permissibly used a technical advisor; and that the district court did not abuse its discretion by refusing to award costs to Defendants. Accordingly, we affirm both the judgment in Defendants' favor and the order denying them costs.

FACTUAL AND PROCEDURAL BACKGROUND

Effective February 1, 1983, the California legislature amended the California Education Code to prohibit the California Commission on Teacher Credentialing ("CCTC") from issuing "any credential, permit, certificate, or renewal of an emergency credential to any person to serve in the public schools unless the person has demonstrated proficiency in basic reading, writing, and mathematics skills." Cal. Educ. Code S 44252(b). At the same time, the legislature authorized the state's Superintendent of Public Instruction to "adopt an appropriate state test to measure

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proficiency in these basic skills." Cal. Educ. Code S 44252(c). The Superintendent adopted the CBEST and, in May 1983, CCTC assumed responsibility for administering and revising the test.

The CBEST is a pass-fail examination consisting of three sections: reading, writing, and mathematics.¹ The reading and mathematics sections each contain 50 multiple-choice questions, 40 of which are scored. The writing section consists of two essays. The CBEST was revised in 1995. At that time, questions that tested "higher order" mathematical skills, such as geometry, were eliminated from the mathematics section of the test.

To pass the CBEST, a candidate must receive a "scaled" score of 123. Accordingly, a candidate passes by averaging 41 points on each of the three sections (out of a score range of 20 to 80). A scaled score of 41 on the reading section translates into a raw score of 28 out of 40 questions correct; on the mathematics section, a scaled score of 41 equates to a raw score of 26 out of 40 correct. Each of the two essays is graded by two readers, who give raw scores of between one and four points per essay. Thus, the range of possible scores for the writing section is between four and 16 points. A raw score of 12 points translates into a scaled score of 41 points. The CBEST employs a "compensatory scoring" model, under which a candidate passes the test with a scaled score lower than 41 on a particular section, so long as his or her total scaled score is at least 123.

A passing score on the CBEST is required for all public elementary and secondary school teachers in California. See Cal. Educ. Code SS 44256, 44257, 44259. A passing score also is required for many non teaching employees of the California public schools, including administrators, see id. S 44270, school counselors, see id.S 44266, and school librarians, see id. S 44269.

Since the CBEST's inception, minority candidates have disproportionately received failing scores. The named Plaintiffs are three nonprofit organizations that represent the interests of minority educators, and eight individual minority candidates. They brought this action against the State of California and the CCTC to challenge the validity of the test under Title VI and Title VII, on behalf of themselves and all others similarly situated. The district court certified the following class:

All Latinos, African-Americans and Asians who have sought or are seeking California public school credentials and certificated positions who have been, are being, or will be adversely affected in their abil ity to obtain credentials and certificated positions by [CBEST] results.

In their complaint, Plaintiffs sought to enjoin the use of the CBEST, alleging that the test has a disproportionate, adverse impact on minority candidates and that Defendants have failed to adopt screening procedures with a less adverse impact.

The parties filed cross-motions for summary judgment, addressing the applicability of Titles VI and VII. In August 1993, the district court granted partial summary judgment to Plaintiffs, concluding that both Titles VI and VII apply to the CBEST. See Association of Mexican-American Educators v. California, 836 F. Supp. 1534 (N.D. Cal. 1993) ("AMAE I"). Following a bench trial, the district court held that: (1) Plaintiffs had demonstrated that the CBEST has a disparate impact on minorities; (2) the studies that were submitted at trial demonstrated that the test was a valid measure of job-related skills; (3) the level at which the passing scores were set reflected reasonable professional judgments about minimum levels of basic knowledge; and (4) Plaintiffs had failed to demonstrate that other, equally effective

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screening devices existed. The court entered a judgment in Defendants' favor. See Association of Mexican-American Educators v. California, 937 F. Supp. 1397 (N.D. Cal. 1996) (" AMAE II").

Defendants then presented the district court with a bill for taxable costs pursuant to Federal Rule of Civil Procedure 54(d)(1). That cost bill totaled $216,443.67. In an order dated February 12, 1997, the district court denied the cost bill in its entirety.

On appeal, Plaintiffs argue (1) that the district court erred in concluding, after trial, that the CBEST was validated properly and (2) that the court violated Federal Rule of Evidence 706 by relying on the advice of an expert who was not subject to cross-examination and did not prepare a report. Defendants cross-appeal with respect to the district court's conclusions, on summary judgment, that Titles VI and VII apply. Defendants also appeal from the district court's order denying costs.²

DISCUSSION

I. Title VII

A. Title VII Applies to the CBEST.³

Defendants appeal from the district court's summary judgment in favor of Plaintiffs on the issue of the applicability of Titles VI and VII. We review de novo the district court's grant of summary judgment. See Robi v. Reed, 173 F.3d 736, 739 (9th Cir.), cert. denied, 120 S. Ct. 375 (1999).

As a threshold matter, we note that, because we ultimately hold that the CBEST was validated properly (see Part I.B., below), we could decline to decide whether Titles VI and VII apply. Were we to do so, we simply would assume for the sake of argument that the statutes apply and move immediately to the question of validation. Although that might appear to be an expedient approach, we decline to follow it for three reasons. First, as a matter of logic, the applicability of Title VI or Title VII is a predicate to any discussion of validation. Validation would not be required, and indeed would not even be relevant, if neither Title VI nor Title VII applies. Second, as a matter of fairness, these parties deserve an answer not only to...