Bauza v. Morales Carrion, No. 77-1310

• Decision Date: 20 June 1978
• Docket Number: No. 77-1310
• Citation: 578 F.2d 447
• Parties: Claudio BAUZA, etc., et al., Plaintiffs, Appellees, v. Arturo MORALES CARRION, etc., et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 447

578 F.2d 447

Claudio BAUZA, etc., et al., Plaintiffs, Appellees, v. Arturo MORALES CARRION, etc., et al., Defendants, Appellants.

No. 77-1310.

United States Court of Appeals First Circuit.

Submitted Dec. 8, 1977.

Decided June 20, 1978.

Jose A. Andreu-Garcia and Geigel, Silva, Soler Favale & Arroyo, Old San Juan, P.R., on brief, for defendants, appellants.

Pedro J. Varela, Hato Rey, P.R., on brief, for plaintiffs, appellees.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

This class action under 42 U.S.C. § 1983 was brought in the district court by the parents of Istra de los Angeles Bauza Hernandez after she failed of admission to the kindergarten of the Elementary School of the University of Puerto Rico, Rio Piedras Campus, for the academic year 1976-77. The four defendants are the President of the University of Puerto Rico; the Chancellor of the Rio Piedras Campus; the Dean of the School of Education at Rio Piedras; and the Director of the Elementary School. These officials make up the chain of command over the Elementary School which is operated as a "laboratory school" by the Rio Piedras Campus of the University of Puerto Rico through its Faculty of Education. ¹

Plaintiffs alleged, and the district court found, that the defendants had improperly filled certain vacancies by preferring some children (especially ones from the University community) rather than by selecting by lot from among all qualified applicants. The court agreed with plaintiffs that what was done violated the fourteenth amendment of the federal Constitution. The court ordered defendants to abandon admissions practices favoring students "from a particular group such as the University community," and imposed costs and attorneys' fees of $1,000 upon defendants.

The questions on appeal are whether the admissions practices as found by the court below amounted to a violation either of the equal protection or due process clauses of the fourteenth amendment of the United States Constitution. ² The school is publicly-funded, and it is not questioned that the challenged actions constituted "state" action for purposes of the fourteenth amendment and § 1983.

Plaintiff's daughter was one of 102 applicants in March, 1976, for positions in the kindergarten. While a class of 25 was contemplated, five of the children then enrolled in the kindergarten were potential holdovers as they had not fulfilled the standards of progress to the next level. Thus only 20 new students were then being sought. Of the 102, 77 including Istra survived the initial testing and interview procedure. Of these, 20 were selected by lot in May, 1976, Istra not being among the fortunate ones. Plaintiffs were promptly notified of Istra's bad luck but were not told that other openings might develop for which there would be a waiting list.

Almost immediately after the lottery, the School proceeded to devise a waiting list procedure for filling additional vacancies that were anticipated. Names of the children who had failed the lottery were separated mainly on the basis of their interviews into three categories, excellent, good and average, and were ranked by I.Q. within each category. "Excellent" students were to be given priority. Plaintiffs' daughter was not placed on the "excellent" list.

By mid-August eight more spaces had opened up. These vacancies were attributable to promotion of the five potential holdovers and to a decision to allow three of the 20 picked in May to skip kindergarten. The director thereupon selected seven additional entrants from the thirteen names on the "excellent" list. Selection from this list was not in order of I.Q. The director testified that she chose those students whose parents had reexpressed interest after their initial rejection. An eighth student was selected from the "good" list solely on the basis of being the child of a new teacher at the Elementary School (a preference specified in the School regulation, see infra, and approved by the district court). It appears that all except the last child were offspring of professors at the University of Puerto Rico. The net size of the entering class was twenty-five, as planned.

Plaintiffs strongly object to the method used to fill the later vacancies. In particular, they contend that the method did not conform to the School regulation ³ handed Mrs. Hernandez early in 1976 when she picked up admissions forms for her daughter. Entitled "Norms and Procedures for the Admission at level 1 of the Elementary School of the University of Puerto Rico Year 1976-77", the regulation provides for selection "through aleatory numbers" from a final selection list of qualified applicants, the results of the selection to be conveyed to parents in June. No procedure for filling last-minute vacancies is described. From this, plaintiffs contend that all entrants including any selected for last minute vacancies must be selected by lot, and that there can be no justification for the procedure that was followed. ⁴ Plaintiffs point to the fact that the only express exception in the 1976-77 regulation to selection by "aleatory numbers", is for children of teachers at the Elementary School. Unlike a 1972-73 regulation placed in evidence, the 1976-77 regulation did not expressly allow "(t)he management . . . to admit candidates who qualify after consulting the university authorities." The plaintiffs point to the elimination of this sentence as indicative of a policy against any preference for University children. The School Director testified, surprisingly, that the sentence was eliminated by mistake and that no change in the regulation had been intended.

On the foregoing facts, the district court ruled that "defendants, in adopting and implementing a discriminatory system of admission to the school, violated plaintiffs' rights to the equal protection of the laws," citing Brown v. Board of Education, 347 U.S. 483, 494, 74 S.Ct. 686, 98 L.Ed. 873 (1954) and Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). The court found that plaintiffs' child, having met all eligibility requirements, was "entitled to be considered in the lottery for entrance along with many other qualified applicants." It found a pattern of selection at the School resulting in acceptance of a vast majority of students "from families within the University and only a minority . . . from families outside the University." While plaintiffs had also contended that selection from the waiting list was influenced by political influence, the district court made no finding that this was so, and the record is not such as to warrant our reaching that conclusion on our own.

While there is good reason to criticize the procedures defendants chose to adopt, it is another matter to find a violation of the United States Constitution. ⁵ The district court acknowledged that under San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973), the educational right at stake here was not a "fundamental" right for equal protection purposes. But it felt that since Puerto Rico "extends the right of free public school education," thus creating an "entitlement to education" protected by the due process clause, Goss v. Lopez, supra, it had to make the right available on completely equal terms. Whatever the abstract merits of this approach, it does not follow the patterns of analysis currently endorsed by the Supreme Court; among other errors, it mixes due process with equal protection standards. In the following discussion, we consider plaintiffs' claim first under the equal protection clause and then under the due process clause.

1. Equal Protection

We begin by agreeing with the district court that, once offered, public education must be dispensed within constitutional limits. Under the equal protection clause, however, absent a classification interfering with the exercise of a fundamental right or operating to the peculiar disadvantage of a suspect class, see Mass. Board of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976), a state's conduct need only bear a reasonable relationship to some proper object. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 64 L.Ed. 989 (1925). Clearly the "right" here affected to attend this superior public school rather than some other is not a "fundamental" right such as would warrant stricter judicial scrutiny of the classificatory criteria. San Antonio Independent School District v. Rodriguez, supra. As the Supreme Court there said, notwithstanding its "abiding respect for the vital role of education in a free society,"

"the importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause." 411 U.S. at 30, 93 S.Ct. at 1295.

Nor is there any claim or evidence that the challenged admissions procedures worked to the disadvantage of a class of persons to which courts have given special protection, such as a racial group, Brown v. Board of Education, supra ; aliens, Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); women, Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), or the like. The court below thus erred insofar as it may have relied on Brown as setting a stricter than ordinary standard for equal protection review here.

In the absence of interference with a fundamental right, or impact upon a suspect class, the district court owed a considerable deference to the views and policies of Commonwealth officials. School admissions policies vary widely from institution to institution. No one formulation can be said to be " the only one". If schools are to possess a desirable diversity, officials must retain wide discretion with respect to the manner of selecting students. See, e. g., Grove v. Ohio St. Univ. College of Veterinary Medicine...