Otero v. Mesa County Valley School Dist. No. 51

• Citation: 568 F.2d 1312
• Decision Date: 28 February 1978
• Docket Number: No. 76-1174,76-1174
• Parties: 15 Fair Empl.Prac.Cas. 1804, 15 Empl. Prac. Dec. P 7901 Stephanie OTERO et al., Plaintiffs-Appellants, v. MESA COUNTY VALLEY SCHOOL DISTRICT NO. 51 et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1312

568 F.2d 1312

15 Fair Empl.Prac.Cas. 1804, 15 Empl. Prac.

Dec. P 7901

Stephanie OTERO et al., Plaintiffs-Appellants, v. MESA COUNTY VALLEY SCHOOL DISTRICT NO. 51 et al Defendants-Appellees.

No. 76-1174.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted March 17, 1977.

Decided Oct. 31, 1977.

Rehearing Denied Feb. 28, 1978.

Morris J. Baller, San Francisco, Cal. (Vilma S. Martinez, Mary R. Mendoza, San Francisco, Cal., and R. Pete Reyes, Denver, Colo., of Mexican American Legal Defense and Educational Fund, Federico Pena of Chicano Education Project and Arthur S. Lucero of Colorado Rural Legal Services, on the brief), for plaintiffs-appellants.

John W. Groves, Grand Junction, Colo. (and Jon E. Getz of Nelson, Hoskin, Groves & Prinster, P. C., Grand Junction, Colo., on the brief), for defendants-appellees.

Before McWILLIAMS, BREITENSTEIN and DOYLE, Circuit Judges.

McWILLIAMS, Circuit Judge.

The plaintiffs-appellants are nine Mexican-American school children who attend, or at one time did attend, public schools located in the Mesa County Valley School District No. 51. The defendants-appellees are District No. 51, the members of its Board of Education, and numerous school officials in both their individual and official capacities.

The plaintiffs charged the defendants with a variety of discriminatory practices in the conduct of the educational program of District 51, all of which allegedly has an adverse effect on the Mexican-American student. More specifically, in their amended complaint the plaintiffs alleged that the defendants had discriminated against Mexican-American students on the basis of race and national origin in connection with both the curriculum offered the students and in connection with the employment practices of the school district in the hiring of teachers and supporting personnel, in violation of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d and the Equal Educational Opportunities Act of 1974. 20 U.S.C. § 1703. A motion for certification of the case as a class action under Fed.R.Civ.P. 23(b)(2) was heard and granted.

The defendants by answer generally denied discrimination, alleged a number of affirmative defenses, one of which was that "(p)laintiffs, as school children, lack standing to assert a claim based upon discrimination in personnel hiring and practices."

The trial of this matter was to the court, and lasted some two weeks. Following trial the parties filed lengthy briefs, and some time later the trial judge entered his Memorandum Opinion in which he denied all relief to the plaintiffs. Judgment was thereafter duly entered in favor of the defendants.

The Memorandum Opinion of the trial court appears as Otero v. Mesa County Valley School District No. 51, 408 F.Supp. 162 (D.Colo.1975). Reference should be made to the trial court's Memorandum Opinion for background facts, which will not be repeated here. The trial court found that in fact there was no significant number of Mexican-American children with substantial English language problems which to any real degree inhibited their educational achievement. The trial court further held that in any event the plaintiffs had no right under the Fourteenth Amendment to a bilingual-bicultural educational program. In so holding the trial court was fortified by our opinion in Keyes v. School District No. 1, 521 F.2d 465 (10th Cir. 1975), cert. denied, 423 U.S. 1066, 96 S.Ct. 806, 46 L.Ed.2d 657 (1976), which was filed while the instant case was under advisement in the trial court.

Additionally, the trial court held that because of a lack of numbers, the plaintiffs had not brought themselves under the so-called Lau-Serna doctrine. See Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1973) and Serna v. Portales Municipal Schools, 499 F.2d 1147 (10th Cir. 1974). The plaintiffs do not appeal that part of the trial court's order and judgment which refused to require the defendants to institute a bilingual-bicultural educational program.

As indicated, one of plaintiffs' claims related to allegedly discriminatory hiring practices on the part of the defendants, which resulted in a staff of teachers and supporting personnel containing a disproportionately low percentage of Mexican-Americans. The trial court rejected this particular claim of the plaintiffs on several alternative grounds: (1) The plaintiffs, as school children, have no standing to challenge the defendants' hiring practices; (2) if the plaintiffs have standing, they did not establish, prima facie, any instances of discrimination by the defendants; (3) if the plaintiffs do have standing, and if they did make a prima facie showing of discrimination, the defendants by their evidence "completely rebutted any suggestion of discrimination," and (4) even if the plaintiffs have standing and prevailed on the discrimination question, the defendants have already adopted an affirmative action program to increase their employment of Mexican-Americans, and hence there is no present need for an injunction. Plaintiffs now appeal that part of the trial court's order and judgment which denied them relief on their claim of discriminatory hiring practices.

The trial court, as its first ground for rejecting plaintiffs' claim of discriminatory hiring practices, held that the plaintiffs lacked standing to maintain the proceeding. More specifically, after all the evidence was in, the trial court held, in effect, that even assuming discriminatory hiring practices by the School District, the plaintiffs had no standing to challenge them. We do not agree. Though a would-be teacher in School District No. 51 who had been discriminated against because of his race might be the most logical person to challenge the district's hiring practices, still such a person is not the only one who has a sufficient interest to institute such an action. Here the plaintiffs alleged that because of the school district's discriminatory employment practices, there is a disproportionately low number of Mexican-American teachers and other supporting personnel in the school system, and that this has an adverse effect upon the educational opportunity afforded the Mexican-American pupil. Counsel for the school district lend credence to this educational theory by stating that in 1973 the school district "adopted" such theory, and "acted" thereon by the adoption and implementation of a minority recruitment program. In any event, we believe that the plaintiffs sufficiently alleged, and showed upon trial, "injury in fact" and have a sufficient "personal stake in the outcome of the controversy" to give them standing. Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). Certainly the plaintiffs' allegations, and the evidence offered in support thereof, constitute at the least an identifiable trifle, and in our view much "more than an ingenious academic exercise in the conceivable." United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). We believe our holding that the plaintiffs do have standing is in accord with Serna v. Portales Municipal School, 499 F.2d 1147 (10th Cir. 1974), and squares with the rationale of Chicano Police Officers Ass'n v. Stover, 526 F.2d 431 (10th Cir. 1975), vacated on other grounds, 426 U.S. 944, 96 S.Ct. 3161, 49 L.Ed.2d 1181 (1976).

In its Memorandum Opinion the trial court reasoned that because the plaintiffs did not even argue that there was segregation, and because they had lost on their claim that they were entitled to a bilingual-bicultural curriculum, they somehow lost standing to challenge the hiring practices of the school district. With such reasoning we are not in accord. In sum, we believe our holding that these plaintiffs have standing is well within the guidelines laid down by the numerous expressions from the Supreme Court on the subject of standing, including Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 ...