Flores v. Arizona, Civ. 92-596 TUC ACM.

• Decision Date: 14 April 1999
• Docket Number: No. Civ. 92-596 TUC ACM.,Civ. 92-596 TUC ACM.
• Citation: 48 F.Supp.2d 937
• Parties: Miriam FLORES, individually and as a parent of Miriam Flores, a minor child, et. al., Plaintiffs, v. State of ARIZONA, et. al., Defendants.
• Court: U.S. District Court — District of Arizona

48 F.Supp.2d 937

Miriam FLORES, individually and as a parent of Miriam Flores, a minor child, et. al., Plaintiffs, v. State of ARIZONA, et. al., Defendants.

No. Civ. 92-596 TUC ACM.

United States District Court, D. Arizona.

April 14, 1999.

COPYRIGHT MATERIAL OMITTED

Tim Hogan, Arizona Center For Law In the Public Interest, Phoenix, Arizona, for Miriam Flores, plaintiff.

Roger W. Hall, Assistant Attorney General, Phoenix, Arizona, for State of Arizona, defendant.

ORDER

MARQUEZ, Senior District Judge.

Background

August 20, 1992, Plaintiffs filed this action seeking declaratory relief against the Defendants for failing to provide limited English proficient (LEP) children with a program of instruction calculated to make them proficient in speaking, understanding, reading, and writing English, while enabling them to master the standard academic curriculum as required of all students. See Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974) (failure to provide English instruction to students of Chinese decent who do not speak English denies them a meaningful opportunity to participate in public education and violates Title VI, 42 U.S.C. § 2000d). Plaintiffs further challenge the Defendants' funding, administration and oversight of the public school system in districts enrolling predominantly low-income minority children because Defendants allow these schools to provide less educational benefits and opportunities than those available to students who attend predominantly anglo-schools.

Plaintiffs allege that the Defendants violate the Equal Education Act of 1974 (EEOA), (Title 20 U.S.C. § 1703(f)),¹ and the implementing regulations, (34 C.F.R. Part 100), for Title VI of the Civil Rights Act of 1964 (Title VI), (42 U.S.C. § 2000d).² Plaintiffs seek relief against all the Defendants, except the State of Arizona, under 42 U.S.C. § 1983 which provides "every person who, under color of any statute, ordinance, regulation, custom, or usage, of any state or territory, subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ..."

The Eleventh Amendment of the Constitution shields the State with immunity from § 1983 actions. A suit against a state official, in his official capacity, is tantamount to a suit against the state itself and is likewise barred except as recognized in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), where the Supreme Court held that a state official who acts unconstitutionally can be sued in his official capacity for prospective injunctive relief. Such a suit does not affect the State in its sovereign or governmental capacity because the official who commits an unconstitutional act is deemed "stripped of his official or representative character. ..." Id. at 159-60, 28 S.Ct. 441.

Alternatively, Plaintiffs may proceed against all Defendants under the EEOA and Title VI. There is no 11th Amendment immunity for the State from Title VI and EEOA actions. See: Los Angeles NAACP v. Los Angeles Unified School District, et. al., 714 F.2d 946, 950 (9th Cir.1983) (by enacting the EEOA, 20 U.S.C. § 1703, Congress, acting pursuant to its enforcement powers under § 5 of the 14th Amendment, abrogated 11th Amendment immunity of state educational agencies (State Department of Education and State Board of Education)), cert. denied, 467 U.S. 1209, 104 S.Ct. 2398, 81 L.Ed.2d 354 (1984); Gomez v. Illinois State Board of Education, 811 F.2d 1030, 1035-1038 (7th Cir.1987) (pursuant to § 5 of 14th Amendment, Congress abrogated 11th Amendment immunity for EEOA cases by enacting 20 U.S.C. § 1706, providing a private right of action); Clark v. California, 123 F.3d 1267, 1270 (9th Cir.1997) (42 U.S.C. § 2000d-7(a)(1)) explicitly states, "a State shall not be immune under the 11th Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973, 2000d-7(a)(1) applies equally to Title VI; 42 U.S.C. § 2000d-7(a)(1) expresses clear intent of Congress to condition grant of federal funds on State's consent to waive its constitutional immunity"), cert. denied, Wilson v. Armstrong, ___ U.S. ___, 118 S.Ct. 2340, 141 L.Ed.2d 711 (1998); Ass'n of Mexican-American Educators v. California, 836 F.Supp. 1534, 1540-1543 (N.D.Cal.1993) (State may be sued for Title VI violation, 42 U.S.C. § 2000d-7(a)(1)) abrogates 11th Amendment immunity); Board of Public Education for City of Savannah and County of Chatham v. Georgia, 1990 WL 608208 (S.D.Ga.1990) (citing Gomez, 811 F.2d 1030 holding that 42 U.S.C. § 2000d-7, Congress specifically abrogated states' immunity from Title VI suits).

There is an express private right of action under the EEOA. 20 U.S.C. § 1706. Los Angeles NAACP v. Los Angeles Unified School District, et. al., 714 F.2d 946, 950 (9th Cir.1983), cert. denied, California v. NAACP, 467 U.S. 1209, 104 S.Ct. 2398, 81 L.Ed.2d 354 (1984); Gomez, 811 F.2d at 1035-1038. For purposes of § 1703(f), an educational agency is defined as a "a local educational agency or a `State educational agency,'" NAACP, 714 F.2d at 950 (citing 20 U.S.C. § 1720), "... the term `State educational agency' means the State board of education or other agency or officer primarily responsible for the State supervision of public elementary and secondary schools," id. (citing 20 U.S.C. § 3381(k)). Section 1706 permits an "individual denied an equal educational opportunity, as defined by this subchapter, [to] institute a civil action in an appropriate district court of the United States against such parties, and for such relief as may be appropriate." Id.

There is an implied private right of action to enforce Title VI, 42 U.S.C. § 2000d. Cannon v. University of Chicago, 441 U.S. 677, 696-703, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) (Congress intended to create Title IX remedies comparable to those available under Title VI and it understood that Title VI authorizes an implied private cause of action for victims of prohibited discrimination); see also Clark, 123 F.3d at 1270 (42 U.S.C. § 2000d-7(a)(1) expresses clear intent of Congress to condition grant of federal funds on State's consent to waive its constitutional immunity). To prevail solely under Title VI, however, Plaintiffs must prove discriminatory intent. See Regents of the Univ. of California v. Bakke, 438 U.S. 265, 287, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (discriminatory animus essential element of a claim based on Title VI alone; overturning Lau's contrary holding); see also Guardians Ass'n. v. Civil Service Comm'n., 463 U.S. 582, 610-612, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983) (Lau's contrary holding did not survive Bakke) (Powell, J., concurring in the judgment), id., at 612, 103 S.Ct. 3221 (O'Connor. J. Concurring in the judgment), id., 639-42, 103 S.Ct. 3221 (Stevens dissenting).

Here, Plaintiffs do not allege discriminatory intent. Instead they proceed under Title VI regulatory provisions, 34 C.F.R. Part 100. Plaintiffs seek this path because the regulations, unlike the statute, reach disparate impact claims. See Ass'n of Mexican-American Educators, 836 F.Supp. at 1540-1543 (Title VI regulations prohibit the use of federal funds for programs that are discriminatory in effect, though not in purpose). The Supreme Court has concluded that Title VI regulations are valid, and that a disparate impact claim may be brought for declaratory and limited injunctive relief. See Alexander v. Choate, 469 U.S. 287, 293, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985) (majority of the Court in Guardians, 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983), concluded that actions having an unjustifiable disparate impact on minorities could be redressed through agency regulations designed to implement purposes of Title VI). The Court has not, however, specifically ruled that there is a private right of action to enforce the regulations.

"The Ninth Circuit applies a two-part test to determine whether agency regulations give rise to a private right of action: `(1) whether Congress delegated authority to establish rules implying a private right of action; and (2) whether the rule in question was drafted such that [a] private right of action may legitimately be implied.'" Ass'n of Mexican-American Educators, 836 F.Supp. at 1547 (citing Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir.1984)). In the case of Title VI, the authority for the implementing regulations appears on the face of the statute: "Each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity ... is authorized and directed to effectuate the provisions of [Title VI] by issuing rules, regulations, or orders of general applicability...." Id. (citing 42 U.S.C. § 2000d-1).

The second-prong of the test requires this Court to make the following sequential findings:

[I]f the rule in question is valid and [if it] furthers the substantive purposes of the enabling statute, and [if] the statute provides a private right of action as a matter of congressional intent, [the court] will imply the private right of action into the rule as well, regardless of agency intent.

Id. (citing Robertson, 749 F.2d at 536, accord Polaroid Corp. v. Disney, 862 F.2d 987, 994 (3rd Cir.1988)). As the court in Ass'n of Mexican-American Educators concluded, "all three of these requirements are satisfied:" the Supreme Court has held that the Title VI regulations are valid and that they further the congressional purpose of withholding federal funds from discriminatory practices, id. (citing Guardians, 463 U.S. at 591-93, 103 S.Ct. 3221 (opinion of White, J.)), and the majority of the Court has concluded that there is a private right of action under Title VI, id. (citing Guardians, 463 U.S. at...