Serna v. Portales Municipal Schools, 73-1737.

• Citation: 499 F.2d 1147
• Decision Date: 17 July 1974
• Docket Number: No. 73-1737.,73-1737.
• Parties: Judy SERNA, a minor Through her parent and general guardian, Romana Serna, et al., Plaintiffs-Appellees, v. PORTALES MUNICIPAL SCHOOLS et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

499 F.2d 1147 (1974)

Judy SERNA, a minor Through her parent and general guardian, Romana Serna, et al., Plaintiffs-Appellees, v. PORTALES MUNICIPAL SCHOOLS et al., Defendants-Appellants.

No. 73-1737.

United States Court of Appeals, Tenth Circuit.

Argued March 20, 1974.

Decided July 17, 1974.

Charles A. Pharris, Albuquerque, N. M., for defendants-appellants.

Vilma S. Martinez, San Francisco, Cal. (Sanford Jay Rosen, Alan B. Exelrod, and Michael A. Mendelson, San Francisco, Cal., David W. Bonem, Clovis, N. M., Dan Sosa, Jr., Las Cruces, N. M., on the brief), for plaintiffs-appellees.

C. Emery Cuddy, Jr., Santa Fe, N. M., for amicus curiae State Bd. of Ed.

Before HILL and McWILLIAMS, Circuit Judges, and DURFEE,^* Judge.

HILL, Circuit Judge.

Appellees in this class action are Spanish surnamed Americans seeking declaratory and injunctive relief against Portales Municipal School District for alleged constitutional and statutory violations committed under color of state law. In particular, appellees contend that appellant-school district has deprived them of their right to equal protection of the laws as guaranteed by the Fourteenth Amendment to the United States Constitution and of their statutory rights under Title VI of the 1964 Civil Rights Act, specifically § 601, 42 U.S.C. § 2000d. Jurisdiction is invoked under 28 U.S.C. § 1343.

Pertinent facts include the following. The City of Portales, New Mexico, has a substantial number of Spanish surnamed residents. Accordingly, a sizable minority of students attending the Portales schools are Spanish surnamed. Evidence indicates that many of these students know very little English when they enter the school system. They speak Spanish at home and grow up in a Spanish culture totally alien to the environment thrust upon them in the Portales school system. The result is a lower achievement level than their Anglo-American counterparts, and a higher percentage of school dropouts.

For the 1971-72 school year approximately 34 percent of the children attending Portales' four elementary schools, Lindsey, James, Steiner and Brown, were Spanish surnamed.¹ The junior high school and senior high school enrollments of Spanish surnamed students were 29 percent and 17 percent, respectively. Unquestionably as Spanish surnamed children advanced to the higher grades a disproportionate number of them quit school.

Appellees in their complaint charge appellant with discriminating against Spanish surnamed students in numerous respects. Allegedly there is discrimination in appellants' failure to provide bilingual instruction which takes into account the special educational needs of the Mexican-American student; failure to hire any teachers of Mexican-American descent; failure to structure a curriculum that takes into account the particular education needs of Mexican-American children; failure to structure a curriculum that reflects the historical contributions of people of Mexican and Spanish descent to the State of New Mexico and the United States; and failure to hire and employ any administrators including superintendents, assistant superintendents, principals, vice-principals, and truant officers of Mexican-American descent. This failure to provide equal educational opportunities allegedly deprived appellees and all other similarly situated of their right to equal protection of the laws under the Fourteenth Amendment.

At trial appellees presented the following evidence to support their allegations. Until 1970 none of the teachers in the Portales schools was Spanish surnamed, including those teaching the Spanish language in junior and senior high school; there had never been a Spanish surnamed principal or vice-principal and there were no secretaries who spoke Spanish in the elementary grades.

Evidence was offered showing that in 1969 the report by Portales Municipal Schools to United States Commission on Civil Rights indicated that at Lindsey, the 86 percent Spanish surnamed school, only four students with Spanish surnames in the first grade spoke English as well as the average Anglo first grader. During an evaluation of the Portales Municipal Schools by the New Mexico Department of Education in 1969, the evaluation team concluded that the language arts program at Lindsey School "was below average and not meeting the needs of those children." Notwithstanding this knowledge of the plight of Spanish surnamed students in Portales, appellants neither applied for funds under the federal Bilingual Education Act, 20 U.S.C. § 880b, nor accepted funds for a similar purpose when they were offered by the State of New Mexico.

Undisputed evidence shows that Spanish surnamed students do not reach the achievement levels attained by their Anglo counterparts. For example, achievement tests, which are given totally in the English language, disclose that students at Lindsey are almost a full grade behind children attending other schools in reading, language mechanics and language expression. Intelligence quotient tests show that Lindsey students fall further behind as they move from the first to the fifth grade. As the disparity in achievement levels increases between Spanish surnamed and Anglo students, so does the disparity in attendance and school dropout rates.

Expert witnesses explained what effect the Portales school system had on Spanish surnamed students. Dr. Zintz testified that when Spanish surnamed children come to school and find that their language and culture are totally rejected and that only English is acceptable, feelings of inadequacy and lowered self esteem develop. Henry Pascual, Director of the Communicative Arts Division of the New Mexico Department of Education, stated that a child who goes to a school where he finds no evidence of his language and culture and ethnic group represented becomes withdrawn and nonparticipating. The child often lacks a positive mental attitude. Maria Gutierrez Spencer, a longtime teacher in New Mexico, testified that until a child developed a good self image not even teaching English as a second language would be successful. If a child can be made to feel worthwhile in school then he will learn even with a poor English program. Dr. Estevan Moreno, a psychologist, further elaborated on the psychological effects of thrusting Spanish surnamed students into an alien school environment. Dr. Moreno explained that children who are not achieving often demonstrate both academic and emotional disorders. They are frustrated and they express their frustration in lack of attendance, lack of school involvement and lack of community involvement. Their frustrations are reflected in hostile behavior, discipline problems and eventually dropping out of school.

Appellants' case centered around the testimony of L. C. Cozzens, Portales' superintendent of schools. Cozzens testified that for the 1971-72 school year out of approximately 80 applications for elementary school teaching positions only one application was from a Spanish surnamed person. Nevertheless, through aggressive recruiting Portales hired six Spanish surnamed teachers. At Lindsey a program was established to teach first graders English as a second language; and with the aid of federal funds a program was also established to serve the needs of pre-school Spanish surnamed children. At the high school level an ethnic studies program was initiated which would be directed primarily at the minority groups and their problems.

The faculty was encouraged to attend workshops on cultural awareness. Altogether over a third of the entire faculty attended one or more of these workshops.

After hearing all evidence, the trial court found that in the Portales schools Spanish surnamed children do not have equal educational opportunity and thus a violation of their constitutional right to equal protection exists. The Portales School District was ordered to:

reassess and enlarge its program directed to the specialized needs of its Spanish surnamed students at Lindsey and also to establish and operate in adequate manner programs at the other elementary schools where no bilingual-bicultural program now exists.

. . . . . .

Defendant school district is directed to investigate and utilize whenever possible the sources of available funds to provide equality of educational opportunity for its Spanish-surnamed students.

. . . . . .

It is incumbent upon the school district to increase its recruiting efforts and, if those recruiting efforts are unsuccessful, to obtain sufficient certification of Spanish-speaking teachers to allow them to teach in the district.

Appellants, in compliance with the court's order to submit a plan for remedial action within 90 days, thereafter filed a proposed plan. In essence the plan provided bilingual education for approximately 150 Lindsey students in grades one through four. Each group would be given instruction in Spanish for approximately 30 minutes daily. A Title VII bilingual program would be instituted for approximately 40 pre-school children. Practically all personnel employed for this program would be Spanish surnamed. At the junior high one Spanish surnamed teacher aide would be employed to help Spanish surnamed children experiencing difficulty in the language arts. At the high school a course in ethnic studies would be offered emphasizing minority cultures and their contribution to society. In connection with this program appellants applied to the State Department of Education for state bilingual funds. These funds would provide one bilingual-bicultural instructor for the school district's other three elementary schools, and one bilingual-bicultural teacher or teacher aide at the junior high school. Seeking other sources of funding was also promised as long as the control and supervision of the programs remained with the local board of education.

Although complying with most of the court's order, appellants noted that because enrollment is declining in the Portales schools there...