Villanueva v. Carere
| Decision Date | 04 June 1996 |
| Docket Number | Nos. 94-1454,No. 60,D,94-1479,60,s. 94-1454 |
| Citation | 85 F.3d 481 |
| Parties | , 110 Ed. Law Rep. 38 Lorraine VILLANUEVA, on behalf of herself and her minor children, Delores Villanueva, Kayla Villanueva, and Esteban Villanueva; Jennie M. Vasco and Claude L. Vasco, on their own behalf and on behalf of their minor child, Marie Vasco; Bernadette Villalon, on behalf of herself and her minor children, Jason Villalon and Ian Villalon; and collectively on behalf of all others similarly situated, Plaintiffs/Counter-Defendants-Appellants/Cross-Appellees, v. Warren D. CARERE, President and Member, Board of Education for Pueblo School Districtennis Flores, Mary Lou Jackson, Abel J. Tapia, Judy Weaver, Members, Board of Education for Pueblo School District; Board of Education for Pueblo School District, Defendants-Appellees/Cross-Appellants, and The State of Colorado ex rel. Gale A. Norton and the Colorado State Board of Education, Defendants-Intervenors-Counter Claimants-Appellees. Colorado League of Charter Schools, Amicus Curiae. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Margaret L. Herdeck, Pueblo, Colorado (J.E. Losavio, Jr. and Peter S. Blood, Pueblo, Colorado, and William S. Barber of Pueblo County Legal Services, Inc., Pueblo, Colorado, with her on the briefs), for Plaintiffs-Counter Defendants-Appellants/Cross-Appellees.
Franklin A. Nachman (Martin Semple with him on the brief), of Semple & Jackson, P.C., Denver, Colorado, for Defendants-Appellees/Cross-Appellants Warren Carere, et al.
William E. Thro, Assistant Attorney General, Denver, Colorado (Gale A. Norton, Attorney General of Colorado, with him on the brief), for Defendants-Intervenors-Counter Claimants/Appellees the State of Colorado ex rel. Gale A. Norton and the Colorado State Board of Education.
James W. Griffin, Lakewood, Colorado, on the brief for Amicus Curiae the Colorado League of Charter Schools.
Before PORFILIO, HENRY, and BRISCOE, Circuit Judges.
Plaintiffs-appellants, a class of Hispanic parents and their children (the Parents), brought this action to enjoin the closing of two Pueblo, Colorado public schools and the opening of a charter school pursuant to the Colorado Charter Schools Act, Colo.Rev.Stat. §§ 22-30.5-101 to -114 (the Act). The Parents alleged that the decisions of defendant-appellee the Board of Education for Pueblo School District No. 60 (the Board) to close the schools at which their children were enrolled and, three months before, to approve the opening of a charter school had deprived them of their Fourteenth Amendment right to equal protection of the laws and of those rights guaranteed by Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-4a. In addition to raising various other claims, which they have not pursued on appeal, the Parents also challenged the constitutionality of the Charter Schools Act under the Equal Protection Clause. The State of Colorado and the Colorado State Board of Education intervened to defend the Act.
Following a five-day hearing, the district court denied the Parents' motion for a permanent injunction, finding that they had failed to demonstrate: (1) that the Board had intentionally discriminated against them; (2) that the Parents would suffer a discriminatory impact as a result of the Board's actions; or (3) that the Charter Schools Act violated the Constitution. We affirm.
The issues for review are (1) whether the Parents met their burden of proving either discriminatory intent, as required for a violation of the Equal Protection Clause, or discriminatory impact, as required for a claim under the implementing regulations of Title VI, with respect to either the school closings or the Board's approval and operation of a new charter school under the Charter Schools Act, and (2) whether the Act is on its face discriminatory in violation of the Equal Protection Clause.
Pueblo School District 60 (the District), comprised of some thirty-three elementary, middle, and high schools, an alternative school, and a day care facility, enrolls approximately 18,000 students of whom almost exactly 50% are Hispanic and about 64% are minorities. In recent years, the District has experimented with innovative approaches to education, forging an educational and administrative alliance with the University of Southern Colorado to improve educational quality and allocate resources more efficiently. As required by Colorado law, District 60 operates under a "schools of choice" system, in which parents may send their children to any school in the District, see Colo.Rev.Stat. §§ 22-36-101 to -106, although free transportation generally is not provided to those who choose to attend schools outside their neighborhood.
The Colorado Charter Schools Act authorizes local school boards to contract with interested parties to establish charter schools--public schools that are managed by their sponsors and financed primarily with the local school district's funds. See Colo.Rev.Stat. §§ 22-30.5-101 to -112. In late 1993, the University of Southern Colorado submitted to the Board an application to establish in District 60 a charter school known as Pueblo School for Arts and Sciences (PSAS), which proposed to use nontraditional pedagogic methods to address especially the needs of "at-risk" and minority students. 1 See Aplts' App. at 45. The proposal asserted the sponsors' commitment to admit a student body reflecting the make-up of "the educational community of Pueblo in terms of gender, ethnicity, and economic status," to use "targeted recruitment" "only to maintain a balanced and diverse student body," and to admit students on a first-come, first-served basis, without regard to test scores. Id. at 46. The sponsors emphasized the importance of a strong "community/school partnership," id. at 44, by requiring parents annually to perform eighteen hours of service to the school, id. at 48. In December 1993, the Board voted pursuant to its authority under the Act to approve the application of PSAS.
The administrators of PSAS sought to ensure geographic and ethnic diversity by dividing District 60 into eight regions for purposes of soliciting enrollment applications; students were admitted on a first-come, first-served basis within each region. Application forms notified parents of the community service requirement, a mandatory pre-admission parental interview, and the requirement that parents provide transportation for their children, and informed parents that admission was to be based upon commitment to the school and not upon previous student performance. The forms also requested information about parents' place of employment. See id. at 78-79.
In practice, no parental interviews were held until after admission. Community groups publicized the charter school among the Hispanic community in Pueblo. In its first year, 1994-95, the projected enrollment at PSAS included 52% Hispanic students and 62% minority students. Aplees' App. at 78.
In February 1994, three months after the vote to approve PSAS, the Board voted to close Hyde Park Elementary School and Spann Elementary School. Approximately 75% of students in each school were Hispanic. The issue of school closures had been before the Board for three years.
Both schools hosted programs for "at-risk" students, including federally funded breakfast and lunch programs and school-wide Chapter I programs 2 that contributed to maintaining pupil-teacher ratios below the District average. In addition, Hyde Park was one of eighteen schools chosen nationwide to host a Parent Resource and Involvement Strength Education (P.R.A.I.S.E.) program, which successfully encouraged broad parental involvement at the school.
In deciding which schools to close, the Board considered primarily four factors: (1) the present and projected enrollment at the schools to be closed and (2) at nearby schools; (3) the percentage of space utilized; and (4) the total cost per student. The Board did not directly consider the impact of school closures on the surrounding communities or the quality of educational programs at the schools chosen for closure.
Of the students formerly attending Hyde Park and Spann, most were to be transferred to other schools consisting predominantly (over 70%) of minority students. In turn, to make room for the incoming students, one of the "receiving schools" was to transfer about forty-four students to another predominantly minority school. While many of the former Hyde Park and Spann students were to be bussed, some would be able to walk to school; some of the latter would now, unlike in the past, have to cross busy intersections. In deciding where to transfer these students, the District considered factors including the proximity and capacity of receiving schools and the desire to have former Hyde Park and Spann teachers follow the students. The District planned to transfer the P.R.A.I.S.E. program to one of these receiving schools and also to have Chapter I funding follow qualifying Hyde Park and Spann students to the receiving schools.
Following a five-day hearing, at which thirty witnesses testified and over 200 exhibits were offered, the district court issued a twenty-page Memorandum Opinion and Order concluding that the Board did not intentionally discriminate against Hispanics, either in the decision to close Hyde Park and Spann or in its approval and oversight of PSAS, and that the Parents failed to establish that the school closures would have a discriminatory impact on Hispanic students. See Aplts' App. at 261-62. The court also upheld the constitutionality of the Charter Schools Act against the Parents' Equal Protection and Due Process attacks. See id. at 280, 285.
Proof of racially discriminatory intent or purpose is required to demonstrate a race-based violation of the Equal Protection Clause. Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct....
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