Otero v. Mesa Cty. Valley Sch. Dist. No. 51

Citation470 F. Supp. 326
Decision Date22 January 1979
Docket NumberCiv. A. No. 74-W-279.
PartiesStephanie OTERO, Brenda Otero (minors) suing by and through their father and next friend, Ray H. Otero, Wilford Trujillo, Jr., Sara Jane Trujillo (minors) suing by and through their father and next friend, Wilford Trujillo, Sr., Rebecca Trujillo, Rhoda Romero, Jeanette Romero (minors) suing by and through their mother and next friend, Dora Romero, William D. Gallegos (a minor) suing by and through his mother and next friend, Lena Martinez, Plaintiffs, v. MESA COUNTY VALLEY SCHOOL DISTRICT NO. 51, Bruce Currier, Nadine Lippath, Miles Kara, W. G. Downer, Jack Wistcott, as members of the Mesa County Valley District No. 51 Board of Education, Donald Oglesby, as Superintendent of School District No. 51, Tedd S. Brumbaugh, as Director of Federal Programs of School District No. 51, Joseph P. O'Hara, as Director of Personnel of School District No. 51, Alvis D. D. Fetter, Arnold Hayes, Louis A. Grasso, Jr., Larry E. Turgoose, Sam Samuelson, John L. Johnson, Joseph A. Roscoe, William N. Baird, F. Ace Ballard, Charles L. Everett, Linden E. Moberly, E. J. Brown, Robert D. Vangundy, Robin D. Peckham, A. Deanhurt, Jerry W. Jordan, Jim Davis, Marguerite Beard, Frederick E. Dickensheets, John A. Crosby, John C. Fulham, Rosemary Faith, Ida M. Lauer, Ralph W. Wobick, Frank J. Folk, Kenneth M. Porter, Gilbert S. Roberts, Dolores J. Williams, Hazel B. Hurd, as Principals within School District No. 51, all sued in both their individual and official capacities, Defendants.
CourtUnited States District Courts. 10th Circuit. United States District Court of Colorado

Vilma S. Martinez, Morris J. Baller and Joel G. Contreras, Mexican American Legal Defense Fund, San Francisco, Cal., Remigio Pete Reyes, Mexican American Legal Defense Fund, Federico Pena, Denver, Colo., Edward Martinez, Colorado Rural Legal Services, Grand Junction, Colo., Leroy Cordova, Colorado Rural Legal Services, Denver, Colo., for plaintiffs.

John W. Groves and Jon E. Getz of Nelson, Hoskin, Groves & Prinster, Grand Junction, Colo., for defendants.

MEMORANDUM OPINION

WINNER, Chief Judge.

This case was tried a long time ago. It was tried on a principal claim of lack of bilingual/bicultural education for the pupils in the school district, with overtones of employment discrimination. I didn't make many findings of fact on the statistics concerning alleged employment discrimination because this is a Title VI case and because I was convinced that parents of gradeschool children have no standing to challenge employment practices in a school district in employing secretaries, bus drivers, janitors and others. I was wrong in this belief, and the Court of Appeals has ordered that I make more detailed findings on the discrimination issue and it has directed that I consider Hazelwood School District v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768, a case decided after my first opinion in this case.

A lot of water has passed over the dam since the opinion of the Court of Appeals Otero v. Mesa County Valley School District No. 51, 568 F.2d 1312. It was eleven months ago that rehearing was denied, but in the interim, conferences among the court and counsel have been held, and for quite a while it looked as if all of the remaining controversies would be settled. Unfortunately, they weren't, and the case is overripe for decision once more. With the exhibits received in evidence, the record in this case is of horrendous length, and, for that reason, plus the reason that my memory of the trial has dimmed, contrary to my usual practice, I asked counsel for each side to submit proposed findings and conclusions to help me meet the mandate of the Court of Appeals. Now I know why so much criticism has been aimed at the practice of having counsel prepare findings and conclusion. See, United States v. El Paso Natural Gas (1964) 376 U.S. 651, 84 S.Ct. 1044, 12 L.Ed.2d 12, Roberts v. Ross (1965) 3 Cir., 344 F.2d 757, and 9 Wright and Miller, Federal Practice and Procedure, § 2578. The Tenth Circuit has permitted, but it has criticized the practice. Featherstone v. Barash (1965) 345 F.2d 246, 10 Cir., and M. B. Skinner v. Continental Industries, Inc. (1965) 346 F.2d 170, 10 Cir., and most recently that court held adoption of findings prepared by counsel could be error. G. M. Leasing v. United States (1975) 514 F.2d 935, 10 Cir. (reversed in part on other grounds) and Kelson v. United States (1974) 503 F.2d 1291, 10 Cir. Competent counsel are, and they should be advocates, and counsel in this case are most competent which means that they are very good advocates. They just can't switch positions and it is unfair to ask them to do so. Their proposed findings are just more briefs, and I understand why they are. The proposed findings are helpful to me in making my findings, but they are helpful in a sense of being another brief rather than in the sense of being a statement of findings of fact which I can adopt. Both sides go farther in the proposals than I can go, and a good advocate should do just that. In a few instances which I shall note with particularity I crib from the proposed findings in haec verbae.

With this introduction, then, I shall make my findings in narrative form in accordance with the provision of Rule 52 which says that "If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein." As I have said, the only questions remaining in this case have to do with alleged employment discrimination. Although the pretrial procedures were long, involved and bitterly contested, I confess that the assertions of employment discrimination at time of trial caught me a little bit by surprise, but I allowed plaintiffs to proceed full speed ahead on that which I thought was collateral to their real complaint. I was surprised because of the language of the class certification order which itself stemmed from vigorous argument between the parties but which, for the most part, was in accordance with plaintiffs' desires as to definition of the class and the claims. The class certified was:

"All persons attending or entitled to attend Mesa County Valley School District No. 51 having a Spanish surname, and all other persons attending or entitled to attend such schools who consider themselves or are considered by the school or the community to be of Mexican-American origin or ancestry, who are being denied an equal educational opportunity because of their race or national origin in that the District's curriculum, personnel, and other programs provide an inadequate or unequal educational service which does not take into account their linguistic or cultural differences."

I guess that slipping in the word "personnel" opened up the case for review of employment practices, but that this was the thrust of the lawsuit didn't really come through to me when I signed the class certification order. I really don't see how these parents can be a proper class to make this challenge, but with the order entered, the discrimination claims grew like Topsy. The Court of Appeals explains that the case is brought under 42 U.S.C. § 2000d which is Title VI and which is not Title VII of the Civil Rights Act of 1964, the Fourteenth Amendment and 20 U.S.C. § 1703. As I shall discuss presently, I think that the fact that this is not a Title VII case is quite important, and I think that the fact that this is not a Title VII case requires the application of different standards as to the essential elements of the wrong charged. However, having been directed by the Court of Appeals to make findings in accordance with the mandate of Hazelwood School District v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768 a Title VII case, I think that I am compelled to make findings necessary in a pattern and practice case which is what the Supreme Court said Hazelwood was. The Supreme Court said, "in 1973 the Attorney General brought this lawsuit against Hazelwood and various of its officials, alleging that they were engaged in a `pattern or practice' of employment discrimination in violation of Title VII of the Civil Rights Act of 1964." Therefore, what I attempt to do in this memorandum opinion is to decide the case under the two statutes and constitutional provision pleaded as well as under Title VII which was not pleaded but which was the foundation for the Attorney General's lawsuit in Hazelwood. Undeniably, this same confusion as to statutory basis was present throughout the trial, and undeniably the trial was a hodge podge of legal theories seemingly keyed to claimed "cumulative effect" of assorted alleged wrongs. With equal certainty, although not pleaded, from time to time plaintiffs attempted to try the case as if it were a "pattern and practice" case brought by the Attorney General which, of course, it wasn't. Although not articulated by me in my original opinion, this added to my conviction that plaintiffs were without standing, but, as I have said, I now know that plaintiffs had standing.

Title VI 42 U.S.C. § 2000d is completely different from Title VII. Title VI only applies "to discrimination under any program or activity receiving federal financing assistance." 42 U.S.C. § 2000d. It does not cover "any employment practice of any employer . . . except where a primary objective of the federal financial assistance is to provide employment." Title VI is not a sweeping substitute for Title VII, and Title VI applies only when there is proof a primary objective of federal financial assistance to provide employment. There was not a scintilla of proof of any such program under which District 51 received financial assistance.1 More importantly, I read Title VI to say that intent is a required element, and there is absolutely no evidence that anyone connected with District 51 intentionally discriminated in any of its employment practices, be they employees, teachers, counselors, teachers' aides, janitors, bus drivers,...

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