De La Cruz v. Tormey

• Decision Date: 13 September 1978
• Docket Number: Nos. 76-2791,76-3355,s. 76-2791
• Citation: 582 F.2d 45
• Parties: Sue DE LA CRUZ et al., Plaintiffs-Appellants, v. James TORMEY et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 45

582 F.2d 45

Sue DE LA CRUZ et al., Plaintiffs-Appellants, v. James TORMEY et al., Defendants-Appellees.

Nos. 76-2791, 76-3355.

United States Court of Appeals,

Ninth Circuit.

Sept. 13, 1978.

Carol R. Golubock, Daly City, Cal., for plaintiffs-appellants.

Thomas F. Casey, III, Deputy Dist. Atty., Redwood City, Cal., for defendants-appellees.

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

Before KILKENNY and WALLACE, Circuit Judges, and PALMIERI, ^* District Judge.

PALMIERI, District Judge:

In this appeal we are called upon to determine whether a statutory and constitutional challenge to facially neutral but allegedly discriminatory official action may be resolved on the pleadings. The issues presented for review are narrow but significant, involving troublesome questions of legal interpretation and of the proper role of the federal judiciary in overseeing the decisions of local administrative bodies in the field of public education.

The plaintiffs are young women with low incomes burdened with the problems of child rearing, whose essential complaint is that the lack of campus child care facilities in the San Mateo Community College District (the District) has deprived them of an equal educational opportunity. They have brought this action on their own behalf and on behalf of others similarly situated under the Civil Rights Act of 1871, 42 U.S.C. § 1983. Jurisdiction exists under 28 U.S.C. § 1343(3) and (4).

The thrust of plaintiffs' action is that defendants the Board of Trustees and Chancellor of the District and the Presidents of the District's three colleges have followed a policy of opposing all efforts of students and community groups to establish child care facilities in the District, thereby denying and burdening plaintiffs' equal access to the District's educational opportunities. Plaintiffs allege that the impact of this policy falls overwhelmingly on women, and that the resultant absence of child care facilities effectively bars them from obtaining the benefits of higher education. In particular, it is asserted that defendants arbitrarily maintain a "policy and practice" of refusing to allow child care facilities on campuses, refusing to apply for or accept funds for the establishment or maintenance of child care centers, and refusing to allow District funds to be used for these purposes.

The complaint pleads four claims for relief. In their first claim plaintiffs state that the defendants have violated their federal right to be free from sex discrimination in educational programs receiving federal monies under Title IX of the Education Act Amendments of 1972, 20 U.S.C. § 1681, which provides, in part, as follows:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance.

Plaintiffs' second claim states that defendants' actions are violative of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution because they constitute intentional, invidious, gender-based discrimination and because they are arbitrary and unrelated to the legitimate goal of providing education.

In their prayer for relief, plaintiffs request, Inter alia, a declaratory judgment to the effect that defendants have acted illegally and unconstitutionally, and temporary and permanent injunctions restraining defendants from maintaining their allegedly discriminatory "anti-child-care" policy and requiring them to take affirmative steps with a view to the development of child care in the District, including the allowance of private centers on campuses, the acceptance of federal, state, and county funds for this purpose, and the use of its own funds to this end.

In response to a motion by defendants pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, the District Court dismissed the entire complaint on the ground that it failed to state any claim upon which relief could be granted. Plaintiffs appeal only from so much of the District Court's order as dismissed their first two claims for relief. Their third and fourth claims, involving matters of California law, stand finally dismissed and are not before us.

I.

The standard to be applied in ruling on a motion to dismiss claims for legal insufficiency a motion viewed with disfavor in the federal courts, Rennie & Laughlin, Inc. v. Chrysler Corporation, 242 F.2d 208, 213 (9th Cir. 1957) is well established. In the words of the test most often applied:

In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957) (footnote omitted).

The issue is not whether a plaintiff's success on the merits is likely but rather whether the claimant is entitled to proceed beyond the threshold in attempting to establish his claims. Moreover, in passing on a motion to dismiss, the allegations of the complaint should be construed favorably to the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). See 5 Wright & Miller, Federal Practice and Procedure: Civil § 1355.

Our task, then, is clearly defined. We must determine whether or not it appears to a certainty under existing law that no relief can be granted under any set of facts that might be proved in support of plaintiffs' claims.

II. The Nature of the Alleged Discrimination

The satisfactory characterization of the allegedly unlawful governmental action sought to be remedied by the present suit poses a legal problem of some novelty and no little magnitude, one whose solution requires a closer scrutiny of the precise claims made. We begin, then, with a more thorough review of the specific conduct challenged by the plaintiffs.

After chronicling the apparently severe shortage of child care facilities for low-income families in San Mateo County, the complaint states, and we quote at some length:

In order to document the great need for child care for presentation to the Board of Trustees, in the Fall of 1973, the Associated Students of the College of San Mateo, (ASCSM) conducted a survey of over 3500 students as to their needs for child care. The ASCSM also began a co-operative effort with members of the District Planning Staff to conduct a feasibility study for child care on campus. Pursuant to these efforts, defendants were persuaded to hire a child care consultant, Sue Brock, to do a study for a District-wide approach to solving the child care problem.

In August, 1974, the ASCSM presented to defendants, Board of Trustees, the results of their survey showing an overwhelming need for child care, and the report of the child care consultant which further documented the overwhelming need and recommended a five-step program to deal with the child care problem including application for state and federal funding. With support from representatives of various community groups . . . ASCSM recommended that space be designated immediately on campus for the use of students who had organized to care co-operatively for their youngsters while a comprehensive program of child care was being developed.

The defendant Board of Trustees refused to take any action.

In September, 1973, the District Advisory Committee for Early Childhood Education, a committee composed of faculty and students of the Early Childhood Education Department and of representatives of the community and community public service agencies, issued a report recommending the development of a child care facility to provide care for children of students and to provide additional laboratory (Sic ) for Early Childhood Education students. Defendants refused to act on this recommendation and have repeatedly refused to do so each year since 1973.

In February, 1975, a faculty member at Canada College, with support from women students, applied for a grant from San Mateo County under Title I of the Comprehensive Employment and Training Act ((29) U.S.C. §§ 801 et seq.) to pay staff to manage a child care center. The application had been encouraged by the staff of a local Manpower agency as the County Manpower Planning Council had allocated $78,000.00 for child care in the area where Canada College was located. The application received preliminary approval from the Manpower staff for the full $78,000.00. However, approval by defendants was necessary before final approval. Defendants refused to accept these monies.

In the Summer of 1975, a group of mothers who were students at Canada College and had organized a child (care) co-operative were given permission to use space in a church on a temporary basis, rent free. The group appealed to defendants for any support the District could possibly give. They were denied support of any form.

In September, 1975, defendants refused a group of women students at the College of San Mateo who had formed a child care co-op permission to use a vacant room or any other space at the College. In October, 1975, a group of women students at Skyline College approached the local elementary school district and were offered space for a child care center if the District would co-operate in the establishment of such a center. The District did not respond to the offer.

In December, 1975, the two groups of women students who had formed child care co-operatives applied to the State Board of Education for funds appropriated under the Campus Child Development Act (Stats.1975, Ch. 1012, p. 2654 (2391)) to fund child care centers in off-campus locations. These applications were approved by the State subject to acceptance by the District. On January 14, 1976, the Board voted to refuse the funds,...