Larry P. v. Riles, No. C-71-2270 RFP.

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
• Writing for the Court: Joanne M. Condas, Deputy Atty. Gen., San Francisco, Cal., for state defendant Wilson Riles
• Citation: 495 F. Supp. 926
• Parties: LARRY P., by his Guardian ad Litem, Lucille P., et al., Plaintiffs, v. Wilson RILES, Superintendent of Public Instruction for the State of California, et al., Defendants.
• Docket Number: No. C-71-2270 RFP.
• Decision Date: 16 October 1979

495 F. Supp. 926

LARRY P., by his Guardian ad Litem, Lucille P., et al., Plaintiffs,
v.
Wilson RILES, Superintendent of Public Instruction for the State of California, et al., Defendants.

No. C-71-2270 RFP.

United States District Court, N. D. California.

October 16, 1979.

495 F. Supp. 927

COPYRIGHT MATERIAL OMITTED

495 F. Supp. 928

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495 F. Supp. 929

COPYRIGHT MATERIAL OMITTED

495 F. Supp. 930

Armando Menocal, III, Erica Black Grubb, William G. Harris, Public Advocates, Inc., San Francisco, Cal., Stephen S. Dunham, Palmer Brown Madden, Samuel R. Miller, Morrison & Foerster, San Francisco, Cal., Lowell D. Johnston, NAACP Legal Defense & Education Fund, Inc., San Francisco, Cal., Louis M. Thrasher, Director, Lucy L. Thomson, Arthur Peabody, Jr., Civ. Rights Div., Dept. of Justice, Washington, D.C., for plaintiffs Larry P. et al

Joanne M. Condas, Deputy Atty. Gen., San Francisco, Cal., for state defendant Wilson Riles.

Daniel E. Collins, III, Thomas Griffin, Deputy City Attys., San Francisco, Cal., for city defendants.

PECKHAM, Chief Judge.

 TABLE OF CONTENTS
                SUMMARY 932
                OPINION 933
                 I. The Parties 933
                 II. Procedural Background 933
                 III. History of the I.Q. Test and of Special Education in California 935
                 A. The Early History 935
                 B. State Funded Programs for the Educable Mentally Retarded
                 Statutory History 937
                 C. Special Classes for the Educable Mentally Retarded 941
                 D. The Racial Composition of E.M.R. Classes 942
                 E. The Use of I.Q. Tests in E.M.R. Placement 945
                 1. The State Requirement of an I.Q. Test 945
                 2. The I.Q. Score and the Other Psychological Data for E.M.R
                 Placement 948
                 3. The Moratorium on I.Q. Testing 951
                 IV. Intelligence Tests 952
                 A. Introduction: The Impossibility of Measuring Intelligence 952
                 B. Scores of Black and White Children on I.Q. Tests 954
                 C. Reasons for the Disparity in I.Q. Scores 954
                 1. The Genetic Argument 955
                 2. The Socio-Economic Argument 956
                 3. The Cultural Bias of Standardized I.Q. Tests 956
                 D. The Relevance of Cultural Bias and the Disparity in I.Q. Scores 959
                 V. Legal Analysis 960
                 A. Introduction 960
                 B. Federal Statutory Claims 961
                 1. Private Right of Action and Exhaustion of Administrative
                 Remedies 961
                 2. Title VI of the Civil Rights Act of 1964: One Application of
                 an "Effects Test" 964
                 3. The Rehabilitation Act of 1973 and the Education for All
                 Handicapped Children Act of 1975—Another "Effects Test" 966
                 4. The Question of Validation Despite Discriminatory Effects 968
                 5. Alternatives to I.Q. Testing for E.M.R. Placement 973
                 C. The Equal Protection Clause of the Fourteenth Amendment 974
                 1. Intentional Discrimination 975
                 a. Determining the Standard 975
                 b. Applying the Law 979
                 2. An "Intermediate" Standard of Review 985
                

495 F. Supp. 931
                 D. State Claims 986
                 E. Adequacy of Representation 987
                 F. Legal Conclusions 988
                 VI. Remedy 989
                 A. Introduction 989
                 B. Permanent Injunctive Relief 989
                 1. Intelligence Tests 989
                 2. Disproportionate Placement 990
                 3. Reevaluation and Other Class Relief 990
                 C. The Necessity of Limiting the Scope of the Remedy 990
                 VII. Conclusion 991
                

Plaintiffs, representing the class of black children in California who have been or in the future will be wrongly placed and maintained in special classes for the "educable mentally retarded" ("E.M.R.")¹ challenge the placement process for those classes and particularly certain uses of standardized individual² intelligence ("I.Q.") tests in California.³ They contend that the I.Q. tests in their present form are biased and that defendants have discriminated against black children by using those tests. The tests allegedly result in the misplacement of black children in special classes that doom them to stigma, inadequate education, and failure to develop the skills necessary to productive success in our society.⁴ Black children represent only 10 percent of the present general student population in California, but provide some 25 percent of the population enrolled in E.M.R. classes.

These testing and placement problems arise in a setting of educational failure. California's schools have been unable to meet the educational needs of disadvantaged minorities such as the black children who brought this case.⁵ As a result, poor

495 F. Supp. 932

minority children tend not only to start out behind their white, middle-class counterparts, but also tend to fall increasingly farther behind after exposure to the public school system. Defendant Wilson Riles stated in 1969, before he became Superintendent of Public Instruction, that disadvantaged black children, on the average, learn only about .7 as much as middle-class white children in any given year.⁶ More recent data confirmed that analysis. Black children fall increasingly behind to the point that it is not unusual for high school students to be reading at the third grade level and performing at only the fourth grade level in mathematics.^6a The disproportionate placement of black children into E.M.R. classes is but one aspect of this troublesome situation.

Courts cannot solve our educational problems, but they played a part in the incremental effort to improve those aspects of our educational systems that effectively deny minorities an equal opportunity to succeed. In particular, the phenomenon of special education such as that for the "mentally retarded" has not yet been subjected to much judicial scrutiny.⁷ We have been forced in this case to enter that complicated area, and it raises special problems for court intervention.

A principal focus of this litigation is on testing—on the use of individual I.Q. tests—to classify black children and assign them to E.M.R. classes. Much of the more then 10,000-page transcript of the trial represents detailed expert testimony about these tests. The court has necessarily been drawn into the emotionally charged debate about the nature of "intelligence" and its basis in "genes" or the "environment." This debate, which finds reknowned experts disagreeing sharply, obviously cannot be resolved by judicial decree. Despite these problems, however, court intervention has been necessary. The history of this litigation has demonstrated the failure of legislators and administrative agencies to confront problems that clearly had to be faced, and it has revealed an all too typical willingness either to do nothing or to pass on issues to the courts.

Fortunately, the "scientific controversy" surrounding the I.Q. tests has not materialized to the extent that might have been expected. The experts have tended to agree about what I.Q. tests can and cannot do, even if they disagree about the utility of I.Q. testing for E.M.R. placement. Our decision, therefore, rests more on a consensus than on the testimony of any one line of experts. Given that consensus, coupled with the other factors present in this case, there is no choice but to invalidate California's present system of classification of black children for E.M.R. classes. The bases for this ruling, both statutory and constitutional, will be explained in detail below, but it may be helpful to summarize them briefly at the outset before proceeding to the main body of the opinion.

SUMMARY

This court finds in favor of plaintiffs, the class of black children who have been or in the future will be wrongly placed or maintained

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in special classes for the educable mentally retarded, on plaintiffs' statutory and state and federal constitutional claims. In violation of Title VI of the Civil Rights Act of 1964, the Rehabilitation Act of 1973, and the Education for All Handicapped Children Act of 1975, defendants have utilized standardized intelligence tests that are racially and culturally biased, have a discriminatory impact against black children, and have not been validated for the purpose of essentially permanent placements of black children into educationally dead-end, isolated, and stigmatizing classes for the so-called educable mentally retarded. Further, these federal laws have been violated by defendants' general use of placement mechanisms that, taken together, have not been validated and result in a large over-representation of black children in the special E.M.R. classes.

Defendants' conduct additionally has violated both state and federal constitutional guarantees of the equal protection of the laws. The unjustified toleration of disproportionate enrollments of black children in E.M.R. classes, and the use of placement mechanisms, particularly the I.Q. tests, that perpetuate those disproportions, provide a sufficient basis for relief under the California Constitution. And under the federal Constitution, especially as interpreted by the Ninth Circuit Court of Appeals, it appears that the same result is dictated.

Moreover, there is another basis for the federal constitutional ruling. Defendants' conduct, in connection with the history of I.Q. testing and special education in California, reveals an unlawful segregative intent. This intent was not necessarily to hurt black children, but it was an intent to assign a grossly disproportionate number of black children to the special E.M.R. classes, and it was manifested, inter alia, in the use of unvalidated and racially and culturally biased placement criteria. This intent, consistent only with an impermissible and unsupportable assumption of a higher incidence of mental retardation among blacks, cannot be allowed in the face of the constitutional prohibition of racial discrimination.

The precise reasons for these findings, expressed here in simplified form, and the type of remedy that will be necessary, including a continuation of the present injunction against I.Q. testing for the placement of black children into E.M.R. classes, are discussed in the body of this opinion.

OPINION

I. THE PARTIES

The named plaintiffs, including Larry P., are black children who attended elementary schools in the San Francisco Unified School District and were placed in...