P. v. Riles

• Decision Date: 20 June 1972
• Docket Number: No. C-71 2270.,C-71 2270.
• Citation: 343 F. Supp. 1306
• Parties: Larry P. et al., Plaintiffs, v. Wilson RILES et al., Defendants.
• Court: U.S. District Court — Northern District of California

343 F. Supp. 1306

Larry P. et al., Plaintiffs, v. Wilson RILES et al., Defendants.

No. C-71 2270.

United States District Court, N. D. California.

June 20, 1972.

Oscar Williams, San Francisco, Cal., for plaintiff NAACP.

Michael S. Sorgen and Armando M. Menocal, III, San Francisco Neighborhood Legal Assistance Foundation, San Francisco, Cal., for other plaintiffs.

Evelle Younger, State Atty. Gen., and Richard Myers, Deputy Atty. Gen., San Francisco, Cal., for defendant State of California.

Ray Williamson and Thos. M. O'Connor, San Francisco City Attys., San Francisco, Cal., for local defendants.

ORDER and MEMORANDUM

PECKHAM, District Judge.

Plaintiffs in this case have asked the Court to issue a preliminary injunction restraining the San Francisco Unified School District from administering I.Q. tests for purposes of determining whether to place black students in classes for the educable mentally retarded. Named plaintiffs, who remain anonymous for their own protection, are black San Francisco elementary school children who have been placed in EMR (Educable Mentally Retarded) classes because, inter alia, they scored below 75 on the defendant School District's I.Q. tests. They claim that they are not mentally retarded, and that they have been placed in EMR classes on the basis of tests which are biased against the culture and experience of black children as a class, in violation of their fourteenth amendment rights. In fact, plaintiffs have presented evidence, in the form of affidavits from certain black psychologists, that when they were given the same I.Q. tests but with special attempts by the psychologists to establish rapport with the test-takers, to overcome plaintiffs' defeatism and easy distraction, to reword items in terms more consistent with plaintiffs' cultural background, and to give credit for non-standard answers which nevertheless showed an intelligent approach to problems in the context of that background, plaintiffs scored significantly above the cutting-off point of 75.

Irreparable injury is alleged to flow from plaintiffs' placement in EMR classes because the curriculum is so minimal academically, teacher expectations are so low, and because other students subject EMR students to ridicule on account of their status. Furthermore, EMR students allegedly acquire severe feelings of inferiority. See affidavit of Harold E. Dent, Thomas O. Hilliard, William D. Pierce, and Gerald I. West, Ph. D.'s. To add to this alleged irreparable harm, the fact of placement in EMR classes is noted on a student's permanent school record, for colleges, prospective employers, and the armed forces to see. Plaintiffs charge that the harm is especially great because under state law placement in EMR classes is reevaluated only once every three years; this law was recently changed, however, to require reevaluation yearly. Calif.Educ. Code § 6902.4.

Defendants justify the EMR program by noting that the curriculum, pace, and increased attention available in its classes are designed to be beneficial to retarded students, and that in San Francisco the classes are labelled "ungraded" or "adjustment" in order to minimize any stigma. See affidavit of Martin Dean, Assistant Superintendent for Special Educational Services for the San Francisco Unified School District. However, defendants do not seem to controvert plaintiffs' assertion that a student who does not belong in an EMR class is harmed by being placed there. Rather, defendants claim that since students are permitted to achieve their way out of EMR classes on the basis of yearly evaluations, plaintiffs can be suffering only negligible harm as a result of their placement in such classes, even if it is true that they are not mentally retarded. The Court finds this contention to be specious. For even if a student remains in an EMR class for only one month, that placement is noted on his permanent record, his education is retarded to some degree, and he is subjected to whatever humiliation students are exposed to for being separated into classes for the educable mentally retarded.

This Court is thus of the view that for those students who are wrongfully placed in EMR classes, irreparable harm ensues. The more troublesome question, however, is whether some students, including named plaintiffs, are in fact being wrongfully placed in such classes, in violation of their constitutional rights.

NATURE OF PLAINTIFFS' CLAIM

Plaintiffs contend that they are being deprived of equal protection of the laws. In order to establish a prima facie case that such a constitutional violation has occurred, plaintiffs claim that they need only demonstrate that the method of classification being used by defendants (the I.Q. test), although not one based explicitly on race, nevertheless leads to a racial imbalance in the EMR classes. Thus, they reject the traditional equal protection test, which states that the burden is on the plaintiff to prove that no rational relationship exists between the method of classification used and the outcome of the classification. See, e. g., Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). Instead, they assert that once their prima facie case has been made, the burden of proof shifts to defendants to demonstrate the rationality of the mode of classification.

The conceptual scheme which plaintiffs have proposed is one borrowed from cases involving employment discrimination under Title VII of the Civil Rights Act of 1964, jury selection, and school desegregation. For example, if a job qualification test is given which results in a greatly disproportionate number of blacks failing in relation to the percentage of blacks in the job-seeking community, then the burden shifts to the employer to explain how the test is valid for purposes of selecting employees. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); Western Addition Community Organization v. Alioto, 340 F.Supp. 1351 (N.D. Calif. 1972). Similarly, when qualification tests for jury service lead to a disproportionately low number of blacks on grand and petit juries, the burden shifts to the state to explain why passing such a test is a necessary prerequisite to being an effective juror. Carmical v. Craven, 457 F.2d 582 (9th Cir. 1971) (Hufstedler, J.). And finally, when a school district's methods for delineating school boundaries result in student bodies being predominantly of one race or another, the burden shifts to the school district to demonstrate that its methods serve valid and educationally relevant purposes. See, e. g., United States v. School District 151 of Cook County, 286 F.Supp. 786 (N.D.Ill.1968), aff'd., 404 F.2d 1125 (7th Cir. 1968).

The Court believes that this same approach should be utilized in analyzing plaintiffs' contention that the use of I.Q. tests to determine placement in EMR classes violates their right to equal protection of the laws. There are several reasons why the burden is shifted in employment discrimination, jury selection, and school desegregation cases; and all of them dictate that the same process be followed in the instant case.

First, shifting of the burden is a reflection of the strong judicial and constitutional policy against racial discrimination. Of all the evils the equal protection clause was designed to eliminate, racial discrimination is the one we are most certain the drafters contemplated. Indeed, race has been declared by the Supreme Court to be a "suspect classification"; and there is little doubt that if the San Francisco Unified School District were to classify students explicitly on the basis of race for purposes of EMR placement, it would have a near impossible burden to sustain in attempting to justify it. See, e. g., Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). In the de facto race classification cases where the burden has been shifted, courts have manifested this same distrust of laws which harm blacks as an identifiable class. But since the classifications in these cases are not explicitly on the basis of race, these courts have lightened the burden placed on defendants, and have required defendants merely to come forward with evidence that a rational relationship exists between the seemingly neutral method of classification used and the valid purpose of the classification; they have not, as in the explicit racial classification cases, demanded that defendants provide a compelling justification for the classification.

Insofar as the cases which have shifted the burden of proof rely for their support on this general distrust of classifications which harm blacks as an identifiable group, then this Court feels compelled to shift the burden in the instant case if plaintiffs can demonstrate that the I.Q. tests are in fact the primary basis for placing students in EMR classes and that in fact there is a disproportionately high number of black students in the EMR classes. Judge J. Skelly Wright used just this justification for shifting the burden of proof in Hobson v. Hansen, 269 F.Supp. 401 (1967), a case which attacked the system of "tracking" in the Washington, D. C. school system. In Washington there were three or four tracks, depending on the level of schooling; but in every school there was at least one track, labelled "Basic," which corresponded to the EMR classes in the instant case (e. g., assignment to the "Basic" track was based primarily on the fact of scoring lower than 75 on an I.Q. test). Black students were disproportionately represented in that track. In deciding the constitutional claim that use of the I.Q. tests violated black students' rights to equal protection of the laws, Judge Wright stated,

The law has a special concern for minority groups for whom the judicial branch of government is often the only hope for redressing their legitimate grievances; and a court will not treat lightly a showing that educational opportunities are being

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