The Assoc. of Mexican-Amer. Educ. et al v. State of Calif.

• Citation: 195 F.3d 465
• Decision Date: 05 November 1997
• Docket Number: MEXICAN-AMERICAN,Nos. 96-17131,ASIAN-PACIFIC,97-15422,s. 96-17131
• Parties: (9th Cir. 1999) THE ASSOCIATION OFEDUCATORS; CALIFORNIA ASSOCIATION FORBILINGUAL EDUCATION, on behalf of themselves, their members, and all others similarly situated; OAKLAND ALLIANCE OF BLACK EDUCATORS, on behalf of themselves, their members, and all others similarly situated; SARA MACNEIL BOYD; SAM GENIS; TOUA YANG; BOB WILLIAMS; MARTA LECLAIRE; ANTOINETTE WILLIAMS; DIANA KWAN and AGNES HAYNES, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants-Cross-Appellees, v. STATE OF CALIFORNIA; THE CALIFORNIA COMMISSION ON TEACHER CREDENTIALING, Defendants-Appellees-Cross-Appellants
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 465

195 F.3d 465 (9th Cir. 1999)

THE ASSOCIATION OF MEXICAN-AMERICAN EDUCATORS; CALIFORNIA ASSOCIATION FOR ASIAN-PACIFIC BILINGUAL EDUCATION, on behalf of themselves, their members, and all others similarly situated; OAKLAND ALLIANCE OF BLACK EDUCATORS, on behalf of themselves, their members, and all others similarly situated; SARA MACNEIL BOYD; SAM GENIS; TOUA YANG; BOB WILLIAMS; MARTA LECLAIRE; ANTOINETTE WILLIAMS; DIANA KWAN and AGNES HAYNES, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants-Cross-Appellees, v. STATE OF CALIFORNIA; THE CALIFORNIA COMMISSION ON TEACHER CREDENTIALING, Defendants-Appellees-Cross-Appellants.

Nos. 96-17131, 97-15422

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted November 5, 1997--San Francisco, California

Decided July 12, 1999

Amended October 28, 1999

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[Copyrighted Material Omitted] John T. Affeldt, Public Advocates, Inc., San Francisco, California, for plaintiffs-appellants-cross-appellees The Association of Mexican-American Educators, et al.

Stephanie Wald (briefed), Deputy Attorney General, San Francisco, California, for defendants-appellees-crossappellants The State of California and The California Commission On Teacher Credentialing.

R. Lawrence Ashe, Jr., Paul Hastings, Janofsky & Walker, Atlanta, Georgia, for defendants-appellees-cross-appellants The State of California and The California Commission On Teacher Credentialing.

Peter Roos (briefed), META, Inc., San Francisco, California, for amicus California Association for Bilingual Education, Educational coalition of Hispanics in Oakland and Chicano Federation of San Diego County, Inc.

Paul J. Dostart (briefed), Dostart, Clapp, Sterrett & Coveney, San Diego, California, for amicus California Federation of Teachers.

Stewart Weinberg (briefed), Van Bourg, Weinberg, Roger & Rosenfeld, Oakland, California, for amicus California Federation of Teachers.

Martin Bienstock (briefed), United States Attorney General's Office, New York, New York, for amicus The New York State Education Department, The Alabama State Department, and The States of Oregon and Nevada.

John L. Bukey (briefed), West Sacramento, California, for amicus Education Legal Alliance.

Appeals from the United States District Court for the Northern District of California; William H. Orrick, District Judge, Presiding. D.C. No. CV 92-03874-WHO

Before: Robert Boochever and Andrew J. Kleinfeld, Circuit Judges, and Stephen V. Wilson, District Judge.^*

Opinion by Judge Wilson; Dissent by Judge Boochever

WILSON, District Judge:

Plaintiff class of minority educators appeals the District Court's finding that the Defendant California Commission on Teacher Credentialing's CBEST exam did not violate Title VI or Title VII of the 1964 Civil Rights Act ("Plaintiffs' Appeal"). Defendants cross-appeal the District Court's earlier finding on summary judgment that Title VI and Title VII apply to California's credentialing of public school teachers, and appeal the District Court's denial of their costs ("Defendants' Appeal").

I. Facts and Procedural History¹

Effective February 1, 1983, the California State Legislature amended the California Education Code to bar the California Commission for Teacher Preparation and Licensing ("CTPL") from issuing any credential, permit, or certificate to any applicant unable to demonstrate basic reading, writing and mathematics skills in the English language as measured by a basic skills proficiency test. Association of Mexican American Educators v. State of California, 836 F. Supp. 1534, 1538 (N.D. Cal. 1993) ("AMAE I"). In May 1983, after three test administrations, the CTPL assumed full responsibility for revising and administering the CBEST.²AMAE I, 836 F. Supp. at 1539.

The United States has long provided California, through its Board of Education ("Board"), with financial assistance for educational purposes; it is undisputed that the Board has received such federal financial assistance continuously since 1983. AMAE I, 836 F. Supp. at 1537. During that same time period, the California Department of Education ("DOE") has distributed most of that federal money to local school boards. Id.

At the same time, however, neither the CPTL nor its successor the CTC have received any federal funds. AMAE I, 836 F. Supp. at 1538. Indeed, the District Court found that in the entire history of California's credentialing authorities, the federal government has provided financial assistance only to one project and that aid for that project ceased in 1979. Id.

Proportionately more of the minorities taking the CBEST have failed it, compared to Caucasians. This pattern appeared in the first administration of the test and has persisted. The Plaintiff class of minority educators brought suit to enjoin the use of the CBEST, alleging that it has a disproportionate adverse impact on racial minorities, that the Defendants failed to properly validate the test, and that the Defendants failed to adopt equally effective screening procedures with a lesser adverse impact.

In 1993, the District Court ruled on summary judgment that both Title VI and Title VII applied to the Commission's use of the CBEST as an employment screening device. Association of Mexican-American Educators v. State of California, 836 F. Supp. 1543 (N.D. Cal. 1993) ("AMAE I"). Following a bench trial, in 1996 the District Court held 1) that Plaintiffs had established a prima facie case by showing that the CBEST has a disparate impact on minorities; 2) that all three studies of the CBEST submitted to the court proved it to be a valid measure of job-related skills; 3) that the passing score reflected professionally reasonably judgments about minimum skill levels of basic knowledge, skills and abilities for teaching jobs; and 4) that Plaintiffs had failed to show the existence of an equally effective alternate screening device. Association of Mexican-American Educators v. State of California, 937 F. Supp. 1397 (N.D. Cal. 1996) ("AMAE II"). The District Court subsequently denied the Defendants' costs in an Order filed on February 12, 1997 ("Order").

On appeal, Plaintiffs contend that the District Court erred in holding that the CBEST was properly validated, and that the court violated Federal Rule of Evidence 706 by relying upon the advice of an expert witness who was not subject to cross-examination and did not prepare an expert's report. The Defendants contend that the District Court erred in holding that Title VI and Title VII apply to its administration of the CBEST, and that it abused its discretion when it denied their costs of $216,443.67.

We review de novo the district court's summary judgment ruling that Title VI and Title VII apply to the Commission's testing activities and review the District Court's factual findings for clear error. Under those standards, we conclude that Title VI and Title VII do not apply to the Commission's administration of the CBEST and we therefore grant Defendants' Appeal. As an alternative ground for upholding the District Court's judgment, we find that the District Court's factual findings were not clearly in error and we therefore deny Plaintiffs' Appeal. However, because we conclude that a court may only deny a prevailing party all costs when the party has engaged in misconduct, we remand the case to the District Court to reconsider Defendants' application for costs.

II. Legal Analysis

A. Standard of Review

We review de novo the District Court's conclusion of law that Title VI and Title VII apply to the Commission's testing activities, Bagdai v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996), and review the District Court's factual findings for clear error. Clady v. County of Los Angeles, 770 F.2d 1421, 1427 (9th Cir. 1985).

B. Application of Title VI to the CBEST

1. General Applicability of Title VI

Title VI was originally passed as part of the 1964 Civil Rights Act, and it contains a prohibition on the use of federal dollars to subsidize racial discrimination:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, or be denied the benefits of, or be subject to discrimination in any program or activity receiving Federal financial assistance.

42 U.S.C.A. S 2000d.

The purpose of Title VI is clear: Congress wanted to avoid the use of federal resources to support discriminatory practices and it wanted to provide effective protection against those practices. Cannon v. University of Chicago , 441 U.S. 677, 704 n.36 (1979).

In the Civil Rights Restoration Act of 1987, Congress amended Title VI to include a definition of "program or activity." As amended, Title VI provides that:

For the purposes of this subchapter, the terms "program or activity" and the term "program " mean all of the operations of --

(1)(A) a department, agency, special purpose district, or other instrumentality of a State or of a local government; or

(B) the entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government; or

(2)(A) a college, university, or other postsecondary institution, or a public system of higher education; or

(B) a local educational agency (as defined in section 8801 of Title 20), system of vocational education, or other school sys tem; or

(3)(A) . . .

(4) any other entity which is established by two or more of the entities described in paragraph (1), (2), or (3);

any part of which is extended Federal financial assistance.

42 U.S.C.A. S 2000d-4a.

In other words, the definition of "program or activity" provided by Congress means that if any part of a listed entity receives federal funds, the entire entity is...