Lau v. Nichols

• Decision Date: 18 June 1973
• Docket Number: No. 26155.,26155.
• Citation: 483 F.2d 791
• Parties: Kinney Kinmon LAU, a Minor by and through Mrs. Kam Wai Lau, his Guardian ad Litem et al., Plaintiffs-Appellants. v. Alan H. NICHOLS, President et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

483 F.2d 791 (1973)

Kinney Kinmon LAU, a Minor by and through Mrs. Kam Wai Lau, his Guardian ad Litem et al., Plaintiffs-Appellants. v. Alan H. NICHOLS, President et al., Defendants-Appellees.^*

No. 26155.

United States Court of Appeals, Ninth Circuit.

January 8, 1973.

Rehearing Denied June 18, 1973.

Edward H. Steinman (argued), of Youth Law Center, San Francisco, Cal., for plaintiffs-appellants.

Marian Wright Edelman, Director, Roger L. Rice, Staff Atty., Center for Law and Education, Harvard University, Cambridge, Mass., amicus curiae for plaintiffs-appellants.

Thomas M. O'Conner, City Atty. (argued), Raymond D. Williamson, Deputy City Atty., San Francisco, Cal., for defendants-appellees.

John D. Leshy, Atty. (argued), James L. Browning, U. S. Atty., San Francisco, Cal., David D. Gregory, Joseph B. Scott, Brian K. Landsberg, Attys., David L. Norman, Deputy Asst. Atty. Gen., Dept. of Justice, Washington, D. C., Jerris Leonard, Asst. Atty. Gen., Washington, D. C., amicus curiae for appellee.

Marian Wright Edelman, Director, Roger L. Rice, Staff Atty., Cambridge, Mass., amicus curiae for the appellant.

Before CHAMBERS and TRASK, Circuit Judges, and HILL,^** District Judge.

Rehearing En Banc Denied June 18, 1973.

TRASK, Circuit Judge:

This appeal is from the district court's adverse disposition of a civil rights class action filed by appellants to compel the San Francisco Unified School District to provide all non-English-speaking Chinese students attending District schools with bilingual compensatory education in the English language. The defendants-appellees are the superintendent and members of the Board of Education of the School District, and members of the Board of Supervisors of the City and County of San Francisco.

Two classes of non-English-speaking Chinese pupils are represented in this action. The first class, composed of 1,790 of the 2,856 Chinese-speaking students in the District who admittedly need special instruction in English, receive no such help at all. The second class of 1,066 Chinese-speaking students receive compensatory education, 633 on a part-time (one hour per day) basis, and 433 on a full-time (six hours per day) basis. Little more than one-third of the 59 teachers involved in providing this special instruction are fluent in both English and Chinese, and both bilingual and English-as-a-Second Language (ESL) methods are used. As of September 1969, there were approximately 100,000 students attending District schools, of which 16,574 were Chinese.¹

Appellants' complaint states seven causes of action, alleging violations of the United States Constitution, the California Constitution,² Section 601 of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and provisions of the California Education Code. Essentially, appellants contend that appellees have abridged their rights to an education and to bilingual education, and disregarded their rights to equal educational opportunity among themselves and with English-speaking students. They pray for declaratory judgment and for preliminary and permanent injunctive relief mandating bilingual compensatory education in English for all non-English-speaking Chinese students.

The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 (federal question), and 1343 (civil rights). This court's jurisdiction arises under 28 U.S. C. § 1291, as the district court's order finding for appellees on the merits was a final order.³

As hereinbefore stated, the district court denied appellants all relief, and found for appellees on the merits. The court expressed well-founded sympathy for the plight of the students represented in this action, but concluded that their rights to an education and to equal educational opportunities had been satisfied, in that they received "the same education made available on the same terms and conditions to the other tens of thousands of students in the San Francisco Unified School District . . . ." Appellees had no duty to rectify appellants' special deficiencies, as long as they provided these students with access to the same educational system made available to all other students.⁴

In appealing this case, appellants argue⁵ that the district court misconstrued the meaning of the mandate of Brown v. Board of Education, 347 U.S. 483, 493, 74 S.Ct. 686, 98 L.Ed. 873 (1954), that education, "where the state has undertaken to provide it, is a right which must be made available to all on equal terms." In Brown, appellants continue, "equal terms" meant without segregation imposed by law, because even though there was "surface equality," it "caused . . . a sense of inferiority in minority children which affected their ability and motivation to learn and tended to retard their educational and mental growth." Brief for Appellants at 21.

As applied to the facts of this case, appellants reason, Brown mandates consideration of the student's responses to the teaching provided by his school in determining whether he has been afforded equal educational opportunity. Even though the student is given the same course of instruction as all other school children, he is denied education on "equal terms" with them if he cannot understand the language of instruction and is, therefore, unable to take as great an advantage of his classes as other students. According to appellants, Brown requires schools to provide "equal" opportunities to all, and equality is to be measured not only by what the school offers the child, but by the potential which the child brings to the school. If the student is disadvantaged with respect to his classmates, the school has an affirmative duty to provide him special assistance to overcome his disabilities, whatever the origin of those disabilities may be.

Appellants' reading of Brown is extreme, and one which we cannot accept. There, the Court held that legally constituted and enforced dual school systems were unconstitutional as a denial of equal protection; that state-maintained "separate but equal" educational facilities, sanctioned by Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L. Ed. 256 (1886), were no longer to be allowed. Brown concerned affirmative state action discriminating against persons because of their race. Swann v. Board of Education, 402 U.S. 1, 5, 91 S. Ct. 1267, 28 L.Ed.2d 554 (1971). It struck down the denial of admission of black children to schools attended by white children under laws requiring or permitting segregation according to race. Brown v. Board of Education, 347 U.S. at 488, 74 S.Ct. 686, 98 L.Ed. 873. It followed the dictate of the Fourteenth Amendment, that "no State shall . . . deny to any person . . . the equal protection of the laws." U.S. Const. Amend. XIV, § 1 (emphasis supplied). Therefore, under Brown, cases of de jure, as contrasted with de facto, discrimination violate the constitutional command.⁶ Other cases have followed the same rationale, Gomperts v. Chase, 329 F.Supp. 1192, 1195 (N.D.Cal.1971), application for injunction pending filing of petition for writ of certiorari denied, 404 U.S. 1237, 92 S.Ct. 16, 30 L.Ed.2d 30 (1971); see Swann v. Board of Education, supra, 402 U.S. at 15-18, 91 S.Ct. 1267; Kelly v. Guinn, 456 F.2d 100, 105 (9th Cir. 1972); Keyes v. School District No. 1, 445 F.2d 990, 999 (10th Cir. 1971), cert. granted, 404 U.S. 1036, 92 S.Ct. 707, 30 L.Ed.2d 728 (1972); Davis v. School District, 443 F.2d 573, 575 (6th Cir.), cert. denied, 404 U.S. 913, 92 S.Ct. 233, 30 L.Ed.2d 186 (1971); Deal v. Board of Education, 419 F.2d 1387, 1388 (6th Cir. 1969), cert. denied, 402 U.S. 962, 91 S.Ct. 1630, 29 L.Ed.2d 128 (1971), and 369 F.2d 55, 62 (6th Cir. 1966), cert. denied, 389 U.S. 847, 88 S. Ct. 39, 19 L.Ed.2d 114 (1967); Johnson v. School District, 339 F.Supp. 1315 (N. D.Cal.1971), application for stay pending appeal denied sub nom. Guey Heung Lee v. Johnson, 404 U.S. 1215, 92 S.Ct. 14, 30 L.Ed.2d 19 (1971);⁷ Spencer v. Kugler, 326 F.Supp. 1235, 1239, 1241-1242 (D.N.J.1971), aff'd mem., 404 U.S. 1027, 92 S.Ct. 707, 30 L.Ed.2d 723 (1972); Cisneros v. School District, 324 F.Supp. 599, 616-20 (S.D.Tex.1970), supplemented by 330 F.Supp. 1377, application for reinstatement of stay granted, 404 U.S. 1211, 92 S.Ct. 9, 30 L. Ed.2d 15 (1971), aff'd in part, modified in part and remanded, 467 F.2d 142 (5th Cir. 1972); United States v. Texas, 321 F.Supp. 1043 (E.D.Tex.1970), supplemented by 330 F.Supp. 235, aff'd, 447 F. 2d 441 (5th Cir. 1971), application for stay denied sub nom. Edgar v. United States, 404 U.S. 1206, 92 S.Ct. 8, 30 L.Ed. 2d 10 (1971) cert. denied, 404 U.S. 1016, 92 S.Ct. 675, 30 L.Ed.2d 663 (1972); Spangler v. Pasadena Board of Education, 311 F.Supp. 501 (C.D.Cal.1970).

The parameters of de jure segregation are still being explored by the courts.⁸ If the neighborhood school system is manipulated by the school board in such a way as to create, encourage or foster racial imbalance, courts have determined that a constitutional violation has occurred. E. g., Gomperts v. Chase, supra. The courts have found de jure segregation where the school district has redrawn boundaries of existing schools so as to increase racial imbalance, by detaching compact, racially homogeneous neighborhoods from attendance zones for schools populated predominantly by members of another race. See, e. g., Keyes v. School District No. 1, supra at 445 F.2d 1000-1001; Davis v. School District, supra at 443 F.2d 574; Johnson v. School District, supra at 339 F. Supp. 1318, 1336-1337; United States v. Texas, supra at 321 F.Supp. 1049-1050; Cisneros v. School District, supra at 324 F.Supp. 617-618;⁹ Spangler v. Board of Education, supra at 311 F.Supp. 507-510.

Another indicium of de jure segregation is the selection of construction sites for and establishment of attendance boundaries of new schools. If this is done in such a way as to increase the racial imbalance in schools, as by marking zones which coincide with racial residential patterns, courts have detected a...