Larry P. By Lucille P. v. Riles

Decision Date25 June 1986
Docket NumberNo. 80-4027,80-4027
Citation793 F.2d 969
PartiesLARRY P., by his Guardian ad litem, LUCILLE P.; M.S., by his Guardian ad litem, Joyce S.; M.J., by his Guardian ad litem, Mary H.; Sylvia M., by her Guardian at litem, Sylvia W.; J.L., by his Guardian ad litem, Selena F., Plaintiffs-Appellees, v. Wilson RILES, Superintendent of Public Instruction for the State of California, Defendant-Appellant, Henry P. Gunderson, et al., Defendants.
CourtU.S. Court of Appeals — Ninth Circuit

George Deukmejian, Atty. Gen., San Francisco, Cal., for defendant-appellant.

Armando Menocal, III, Sam Miller, San Francisco, Cal., for plaintiffs-appellees.

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

Before SKOPIL and POOLE, Circuit Judges, and ENRIGHT, * District Judge.

POOLE, Circuit Judge:

The State Superintendent of Public Instruction appeals a decision holding that IQ tests used by the California school system to place children into special classes for the educable mentally retarded (E.M.R.) violated federal statutes and the equal protection clauses of the United States and California Constitutions. The district court enjoined the use of non-validated IQ tests, and ordered the state to develop plans to eliminate the disproportionate enrollment of black children in E.M.R. classes. We affirm on the statutory grounds and reverse on the federal and state constitutional issues.


The initial complaint for declaratory and injunctive relief was filed in 1971, with six black elementary schoolchildren in the San Francisco Unified School District as named plaintiffs. Appellees challenged as unconstitutional the use of standardized intelligence tests for placement of black children in E.M.R. classes in San Francisco. The defendants were the city and state superintendents, the members of the State Board of Public Instruction and the members of the City Board of Education. The district court certified the plaintiff class as consisting "of all black San Francisco schoolchildren who have been classified as mentally retarded on the bases of IQ test results" and granted appellees' motion for a preliminary injunction. Larry P. v. Riles, 343 F.Supp. 1306 (N.D.Cal.1972). Defendants appealed from this judgment, which this court affirmed. Larry P. v. Riles, 502 F.2d 963 (9th Cir.1974).

In August 1973 the State defendants asked for a three-judge court, pursuant to 28 U.S.C. Sec. 2281. The district court rejected this request. In December 1974 the district court expanded the class to include "all Black California school children who have been or may in the future be classified as mentally retarded on the basis of I.Q. tests." The terms of the preliminary injunction were correspondingly expanded. In January 1975 defendants voluntarily placed a moratorium on all IQ testing for E.M.R. placement. In January and July of 1977 appellees filed amended complaints alleging violations of Title VI of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000d et seq.; the Emergency School Aid Act of 1972 and 1974, 20 U.S.C. Secs. 3191-3207 (repealed 1982); the Education For All Handicapped Children Act, 20 U.S.C. Secs. 1401-1461; section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794; the equal protection clauses of the United States and California Constitutions; and several sections of the California Education Code. Jurisdiction was predicated on 28 U.S.C. Secs. 1331, 1337 and 1343 and 42 U.S.C. Sec. 1983. In August 1977 the United States was granted permission to participate as amicus curiae.

Trial began on October 11, 1977 and concluded on March 15, 1978. On October 16, 1979 the district court entered judgment for the appellees. The district court held that the plaintiffs were adequate representatives of the class of black children who had been or in the future would be wrongly placed and maintained in special classes for the educable mentally retarded. Larry P. v. Riles, 495 F.Supp. 926, 987 (N.D.Cal.1979). The court held that the use of IQ tests for placement of black children in E.M.R. classes violated Title VI of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000d et seq., the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794, and the Education For All Handicapped Children Act of 1975, 20 U.S.C. Secs. 1401-1461, and the equal protection clauses of the federal and state constitutions. Larry P., 495 F.Supp. at 933. The district court found no violations of California statutory law. Id. at 986 n. 110.

The district court permanently enjoined the defendants from utilizing any standardized IQ test for the identification of black E.M.R. children or their placement into E.M.R. classes, without securing prior approval of the court. Id. at 989. The court ordered the defendants to direct each school district to re-evaluate every black child currently identified as an E.M.R. pupil Further, the defendants were "ordered to monitor and eliminate disproportionate placement of black children in California's E.M.R. classes." Id. at 990. The district court specifically ordered the defendants to obtain an annual report from each school district on the racial proportions of E.M.R. classes, to prepare a statewide report, and to direct each school district with a black E.M.R. pupil enrollment one standard deviation above the district rate of white E.M.R. pupil enrollment to prepare a plan to correct the imbalance. The defendants were ordered to bring to the attention of the court any district imbalance if the disparity in excess of one standard deviation existed after three years.

without using standardized intelligence tests.

Wilson Riles, California Superintendent of Public Instruction, filed a timely notice of appeal. The other defendants did not appeal.


A detailed discussion of the development of IQ tests and of special education in California can be found in the thorough and well-reasoned district court opinion. 1 Id. at 935-52. For the purposes of this opinion, we will summarize the district court's findings of fact relevant to this appeal.

In the mid-60's California created programs for several categories of students with educational problems. The "educable mentally retarded" (E.M.R.) program was for schoolchildren of retarded intellectual development who are considered incapable of being educated through the regular educational program, but who could benefit from special educational facilities to make them economically useful and socially adjusted. The "trainable mentally retarded" (T.M.R.) category was for children with more severe retardation than educable mentally retarded. CAL.EDUC.CODE Sec. 56515 (West 1978) (repealed 1980). In addition, there were two categories for students who, with help, could be returned to a regular school program. These were the programs for "culturally disadvantaged minors," children with cultural or economic disadvantages, but with potential for successfully completing a regular educational program, CAL.EDUC.CODE Sec. 56600 (West 1978) (repealed 1980); and for "educationally handicapped minors" (E.H.), students with marked learning or behavioral disorders, capable of returning to a regular school program but who cannot presently benefit from the regular program. CAL.EDUC.CODE Sec. 56600 (West 1978) (repealed 1980). Larry P., 495 F.Supp. at 937-38.

The E.M.R. classes are for children who are considered "incapable of learning in the regular classes," and the E.M.R. curriculum "is not designed to help students learn the skills necessary to return to the regular instructional program." Id. at 941 (emphasis in original). The E.M.R. classes are designed only to teach social adjustment and economic usefulness. Id.

"The [E.M.R.] classes are conceived of as 'dead-end classes,' " and a misplacement in E.M.R. causes a stigma and irreparable injury to the student. Id. at 941-42.

From 1968 until trial in 1977, black children have been significantly overrepresented in E.M.R. classes. For example, in 1968-69, black children were about 9% of the state school population, yet accounted for 27% of the E.M.R. population. Id. at 938.

"These apparent overenrollments could not be the result of chance. For example, there is less than a one in a million chance that the overenrollment of black children and the underenrollment of non-black children in the E.M.R. classes in 1976-77 would have resulted under a color-blind system." Id. at 944. To explain this overenrollment, the defendants proffered a theory that there is a higher incidence of mental retardation among the black population. The district court found that this theory Since 1967 complaints and concern had been mounting about the use of IQ tests and the placement of minorities in E.M.R. classes. Id. at 939. In 1969 the state legislature enacted a resolution calling for a study by the State Board of Education of the overenrollment of minorities in E.M.R. classes. House Resolution 444. Litigation began in 1969 that raised many of these same issues on the behalf of children from Spanish-speaking backgrounds. Diana v. Board of Education, No. C-70-37 RFP (N.D.Cal.) 2 .

                fails to account for the problem, because even "if it is assumed that black children have a 50 percent greater incidence of this type of mental retardation, there is still less than a one in 100,000 chance that the enrollment could be so skewed towards black children....  [Further,] the disproportionate E.M.R. enrollment of black children is not duplicated in the classes for the so-called 'trainable mentally retarded' children."    Id

Prior to 1969, although the state required IQ tests and an individualized psychological examination prior to E.M.R. placement, there was no mandatory list of required IQ tests. In 1969 "the [State] Department [of Education (SDE) ] proposed and the State Board of Education adopted, an addition to the ...

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