Los Angeles Branch NAACP v. Los Angeles Unified School Dist., 81-5936

Citation714 F.2d 946
Decision Date01 September 1983
Docket NumberNo. 81-5936,81-5936
Parties13 Ed. Law Rep. 45 LOS ANGELES BRANCH NAACP, Beverly Hills-Hollywood NAACP, San Pedro-Wilmington NAACP, Watts NAACP, San Fernando Valley NAACP and Carson NAACP, Plaintiffs-Appellants, v. LOS ANGELES UNIFIED SCHOOL DISTRICT, et al., Defendants, and California State Department of Education, Bill Honig, Superintendent of Public Instruction, in his official capacity, * and George Deukmejian, Governor, in his official capacity, * Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Peter Graham Cohn, NAACP, Eva Jefferson Paterson, San Francisco, Cal., Nancy B. Reardan, Sacramento, Cal., William Robinson, Norman Chachkin, Washington, D.C., Thomas I. Atkins, Brooklyn, N.Y., Teresa Demchak, Margrett Ford, New York City, Joseph H. Duff, Los Angeles, Cal., for plaintiffs-appellants.

G.R. Overton and Scott Rasmussen, Deputy Attys. Gen., Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before ELY, GOODWIN and SNEED, Circuit Judges.

SNEED, Circuit Judge:

The NAACP brought this class action against the California State Department of Education, the California State Board of Education, the California Superintendent of Public Instruction, and the Governor of California. The NAACP alleged that these state entities and officials, along with a The state defendants moved to dismiss the action under Fed.R.Civ.P. 12(b) for lack of jurisdiction and for failure to state a claim on which relief can be granted. The district court granted the motion of the State Department of Education and the State Board of Education, holding that, as state agencies, these defendants were immune from suit in the federal courts under the Eleventh Amendment to the United States Constitution. The district court also dismissed the claims against the Superintendent of Public Instruction and the Governor, but gave the NAACP leave to amend its complaint to allege a case or controversy against these parties sufficient to meet the requirements of Article III. 518 F.Supp. 1053. The district court then dismissed the amended complaints against the Superintendent and the Governor, concluding that the NAACP had failed to establish the existence of a justiciable case or controversy between itself and the Superintendent or Governor. We reverse the dismissal of all claims except for that against the Governor, and hold that suit against the Governor is barred by the Eleventh Amendment.

group of local defendants, 1 had created and maintained an unconstitutionally segregated school system in the Los Angeles Unified School District.

I. CASE OR CONTROVERSY

In concluding that no justiciable case or controversy between the NAACP and the Superintendent and Governor was alleged, the district court pointed out that the NAACP had failed to assert in its original and amended complaints any intentional act on the part of the Governor and the Superintendent of Public Instruction which proximately contributed to school segregation, or to suggest specific remedies which could be ordered against them. The State Board of Education and the Department of Education also argue that the claims against them should have been dismissed on the same grounds. We disagree and hold that the NAACP has alleged a justiciable case or controversy against each of the state defendants.

Under the case or controversy requirement of Article III, the parties seeking to invoke the court's jurisdiction must show that they personally have "suffered some actual or threatened injury as the result of the putatively legal conduct of the defendant ..., and that the injury fairly can be traced to the challenged action and is likely to be redressed by a favorable decision." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (citations omitted).

Our reading of the NAACP's first amended complaint reveals that the NAACP alleged an actual injury traceable to the actions of the state defendants. According to the NAACP, each of the state defendants engaged in intentional acts which resulted in the de jure segregation of the Los Angeles Unified School District, and failed to take positive steps "to eliminate from the public schools all vestiges of [that] state-imposed segregation." Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1275, 28 L.Ed.2d 554 (1971). 2 Since this suit is a The state defendants argue, however, that even if they engaged in de jure segregation in the past, they are now without power to remedy any segregation still existing in the Los Angeles schools, because the responsibility for school desegregation in California rests with the local school boards. The issue is a difficult one but we believe the NAACP has the better of the argument.

                class action brought on behalf of black children eligible to attend the Los Angeles schools, who would be directly affected by the state defendants' actions if this allegation is later supported by facts, the complaint is sufficient to meet the "causation" element of the case or controversy requirement.   See, e.g., Davis v. Board of Education of North Little Rock, 674 F.2d 684, 689 (8th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 178, 74 L.Ed.2d 146 (1982) (a victim of past de jure school segregation alleges a justiciable case or controversy as long as a unitary system of education has not yet been achieved);   Ybarra v. City of San Jose, 503 F.2d 1041, 1044 (9th Cir.1974)
                

First, while it appears that the local school boards retain the primary responsibility for desegregation of the public schools, California law does allocate a role to each of the state defendants in achieving and maintaining desegregated schools. See San Francisco NAACP v. San Francisco Unified School District, 484 F.Supp. 657, 662-68 (N.D.Cal.1979) (detailing sources in California law for the responsibility of the State Board of Education, State Department of Education, and Superintendent of Public Instruction in achieving school desegregation); Tinsley v. Palo Alto Unified School District, 91 Cal.App.3d 871, 154 Cal.Rptr. 591 (1979) (desegregation is the responsibility of state officials in California). 3 There exists, we believe, a "substantial likelihood" that, should unlawful segregation be found here, the district court could formulate a remedy in which the state defendants could participate. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 79, 98 S.Ct. 2620, 2633, 57 L.Ed.2d 595 (1978).

As already indicated, the state defendants err in their assumption that a justiciable case or controversy can only be raised in this case against the local educational authorities that have heretofore been accorded primary responsibility for desegregation. The crux of the NAACP's complaint is not that the state defendants should supersede the role of the local educational authorities in school desegregation, but that, under the facts of this case, the state defendants should share with the local authorities the duty of taking affirmative steps to remedy continuing unlawful segregation. Whether this claim has merit is for the district court to decide on remand. What is clear is that

                such a claim, raised by a class of plaintiffs who allege an injury directly traceable to the defendants' actions, gives rise to a case or controversy sufficient to meet the requirements of Article III.   See O'Shea v. Littleton, 414 U.S. 488, 495-98, 94 S.Ct. 669, 675-77, 38 L.Ed.2d 674 (1974)
                
II. ELEVENTH AMENDMENT
A. State Department of Education and State Board of Education

Identical treatment of each of the state defendants, however, is not possible under the Eleventh Amendment. That Amendment bars a suit against a state and its agencies and instrumentalities unless the state has consented to the filing of the suit. Quern v. Jordan, 440 U.S. 332, 339-40, 99 S.Ct. 1139, 1144-45, 59 L.Ed.2d 358 (1979); Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 3058, 57 L.Ed.2d 1114 (1978); Jackson v. Hayakawa, 682 F.2d 1344, 1349-50 (9th Cir.1982); see generally 1979 Duke L.J. 1042. Focusing on the State Department of Education and the State Board of Education initially, we agree with the district court's characterization of them as state agencies. The district court also held that the Eleventh Amendment barred this suit against them, relying on Alabama v. Pugh, supra. The NAACP argues, however, that the Eleventh Amendment does not apply here because Congress has abrogated the Eleventh Amendment immunity of state educational agencies in desegregation cases. 4 We agree with the NAACP and on this part company with the district court.

Eleventh Amendment immunity can be waived by the state, or by Congress acting pursuant to its enforcement powers under section 5 of the Fourteenth Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 2671, 49 L.Ed.2d 614 (1976). All admit that California has not waived its immunity in the present case, but the NAACP argues that Congress abrogated California's immunity from suit in desegregation cases by enacting 20 U.S.C. §§ 1701-1758, 28 U.S.C. §§ 1331 and 1343, and 42 U.S.C. § 1983. The NAACP's argument regarding the latter three statutes is without merit, but with respect to 20 U.S.C. §§ 1701-1758 the situation is different.

State immunity under the Eleventh Amendment "will be considered abrogated ... only when the statute or its legislative history clearly indicates a Congressional intention to abrogate that immunity." V.O. Motors, Inc. v. California State Board of Equalization, 691 F.2d 871, 872 (9th Cir.1982). Neither 28 U.S.C. § 1331, nor § 1343, nor 42 U.S.C. § 1983 contains an expression of Congressional intent to abrogate California's immunity. Therefore none operates to lift the Eleventh Amendment bar. See, e.g.,...

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