Westminster School Dist. of Orange County v. Mendez

• Decision Date: 01 August 1947
• Docket Number: No. 11310.,11310.
• Citation: 161 F.2d 774
• Parties: WESTMINSTER SCHOOL DIST. OF ORANGE COUNTY et al. v. MENDEZ et al.
• Court: U.S. Court of Appeals — Ninth Circuit

161 F.2d 774 (1947)

WESTMINSTER SCHOOL DIST. OF ORANGE COUNTY et al. v. MENDEZ et al.

No. 11310.

Circuit Court of Appeals, Ninth Circuit.

April 14, 1947.

As Corrected August 1, 1947.

Joel E. Ogle, County Counsel, George F. Holden and Royal E. Hubbard, Deputies County Counsel, all of Santa Ana, Cal., for appellant.

David C. Marcus, Los Angeles, Cal. (William Strong, of Los Angeles, Cal., of counsel), for appellees.

Thurgood Marshall, and Robert L. Carter, both of New York City, and Loren Miller, of Los Angeles, Cal., for Nat. Ass'n Advancement of Colored People, amicus curiæ.

Will Maslow and Pauli Murray, both of New York City, Anne H. Pollock, of Los Angeles, Cal. (Alexander H. Pekelis, of New York City, Spe. Advisor), for American Jewish Congress, amicus curiæ.

Julien Cornell, Arthur Garfield Hays and Osmond K. Fraenkel, all of New York City, A. L. Wirin and Fred Okrand, both of Los Angeles, Cal., for American Civil Liberties Union, amicus curiæ.

Charles F. Christopher, of Los Angeles, Cal., for Nat. Lawyers Guild, Los Angeles Chapter, amicus curiæ.

A. L. Wirin and Saburo Kido, both of Los Angeles, Cal., for Japanese-American Citizens League.

Robert W. Kenney, Atty. Gen., of Cal., and T. A. Westphal, Jr., Deputy Atty. Gen., for Atty. Gen. of Cal., amicus curiæ.

Before GARRECHT, DENMAN, MATHEWS, STEPHENS, HEALY, BONE, and ORR, Circuit Judges.

STEPHENS, Circuit Judge.

The petition herein which prays for present and future relief and costs is filed under authority of section 24, subdivision 14, of the Judicial Code, 28 U.S.C.A. § 41 (14),¹ and section 43 of 8 U.S.C.A.,² and is based upon alleged violations of petitioners' civil rights as guaranteed by the 5th and 14th amendments to the Constitution of the United States. No argument as to the application of the 5th amendment is made in this appeal and it need not be considered.

The petition contains allegations to the following effect. A number of minors (at least one each from each school division herein mentioned) for themselves and for some 5000 others as to whom the allegations of the complaint apply,³ citizens of the United States of Mexican descent, who attend the public schools of the State of California in Orange County, filed a petition by their fathers, as next friends, for relief against trustees and superintendents of several school districts and against the superintendent and secretary and members of a city board of education. Unless we shall indicate otherwise, our use of the terms "school districts", "districts" or "schools" will be understood as inclusive of both district and city school territories or schools. The term "school officials" includes all respondents.

All petitioners are taxpayers of good moral habits, not suffering from disability, infectious disease, and are qualified to be admitted to the use of the schools and facilities within their respective districts and systems.

A common plan of the school officials has been adopted and practiced, and common rules and regulations have been adopted and put into effect, whereby (using the words of the petition) "petitioners and all others of Mexican and Latin descent" are "barred, precluded and denied", "attending and using and receiving the benefits and education furnished to other children", and are segregated in schools "attended solely by children of Mexican and Latin descent". To such treatment, petitioners and others in the same situation have objected, and they have demanded and have been refused admission to schools within their respective districts which they would attend but for the practice of segregation. "That by this suit and proceedings, petitioners seek to redress the deprivation by respondents herein school officials under color of regulation, custom and usage of petitioners' civil rights, privileges and/or immunities secured to them by the Laws of the United States, and guaranteed to each of them by the Laws and Constitution of the United States of America."

To the petition, the school officials respond by a motion to dismiss for lack of federal court jurisdiction, because (to use the words of the motion) "this is not a suit at law or in equity authorized by law to be brought by any person to redress the deprivation, under color of any law, statutes, ordinances, regulation, custom, or usage, of any state, of any right, privilege, or immunity, secured by any law of the United States providing for equal rights of citizens of the United States or of all persons within the jurisdiction of the United States," and because the "petition fails to state a claim upon which relief can be granted." The motion was denied without prejudice to the assertion of any available legal defenses by way of answers to the petition. Respondents in their answer reassert their position as to the law in the motion to dismiss, and put in issue all of the allegations relating to the subject of segregation.⁴

After submission of the case for decision, the court filed its written opinion under the title "Conclusions of the Court".^4a Thereafter, Findings of Fact and Conclusions of Law were filed, generally supporting petitioners' complaint. Respondents objected to the Findings of Fact on the ground that the evidence showed without conflict school children of Mexican descent had been and are being furnished with facilities fully equal to other school children, and that no finding had been made thereon. The court overruled the objection, and declined to make the requested finding upon the ground that it is immaterial to the issue of the case.

Thereafter, a judgment was entered to the effect that all segregation found to have been practiced was and is arbitrary and discriminating and in violation of rights guaranteed to plaintiffs by the Constitution of the United States. All respondents were enjoined against continuance of the segregation, and costs were entered against the several school districts.

Respondents appeal from the judgment upon eight points which may be stated simply as contentions that the District Court was and is without jurisdiction over the subject matter because no substantial federal question is put in issue, and that suit is not authorized by law to redress the alleged deprivation of constitutional rights and that the findings do not support the conclusions.

Summed up in a few words it is the burden of the petition that the State of California has denied, and is denying, the school children of Mexican descent, residing in the school districts described, the equal protection of the laws of the State of California and thereby have deprived, and are depriving, them of their liberty and property without due process of law, as guaranteed by the Fourteenth Amendment of the Constitution of the United States.⁵

Respondents are officers of the State of California in the Department of Education of that state, and as it will hereinafter be shown their action under the intendment of the Fourteenth Amendment is the action of the state in all cases where such action is taken under color of state law. We must, therefore, consider the questions: Are the alleged acts done under color of state law, and do they deprive petitioners of any constitutional right? The jurisdictional question is implicit in these two questions.

It is said in Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, that "* * * the court must assume jurisdiction to decide whether the allegations state a cause of action on which the court can grant relief as well as to determine issues of fact arising in the controversy." Therefore, the District Court was right in taking jurisdiction.

Were the acts complained of performed under color of state law, or since there is no dispute that the law of California does not authorize the segregation practiced, are the acts merely personal to the actors and in no sense state acts? That the acts complained of have been and are being performed under color of state law has been conclusively and affirmatively answered in principle in Home Telephone & Telegraph Co. v. Los Angeles, 227 U.S. 278, 33 S.Ct. 312, 57 L.Ed. 510, wherein it was claimed that the officer complained of was a state agent and the state could not be held responsible for acts of the agency not within the terms of the agency. We quote from page 287 of 227 U.S., at page 315 of 33 S.Ct., 57 L.Ed. 510 of the opinion: "In other words, the proposition is that the Amendment Fourteenth Amendment of the Constitution deals only with the acts of state officers within the strict scope of the public powers possessed by them, and does not include an abuse of power by an officer as the result of a wrong done in excess of the power delegated. Here again the settled construction of the Amendment is that it presupposes the possibility of an abuse by a state officer or representative of the powers possessed, and deals with such a contingency. It provides, therefore, for a case where one who is in possession of state power uses that power to the doing of the wrongs which the Amendment forbids, even although the consummation of the wrong may not be within the powers possessed, if the commission of the wrong itself is rendered possible or is efficiently aided by the state authority lodged in the wrongdoer. That is to say, the theory of the Amendment is that where an officer or other representative of a state, in the exercise of the authority with which he is clothed, misuses the power possessed to do a wrong forbidden by the Amendment, inquiry concerning whether the state has authorized the wrong is irrelevant as to the point under discussion, and the Federal judicial power is competent to afford redress for the wrong by dealing with the officer and the result of his exertion of power." See Barney v. City of New York, 193 U.S. 430, 24 S.Ct. 502, 48 L.Ed. 737; Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497; Cochran v. Kansas, 316 U.S. 255, 62 S.Ct. 1068, 86 L.Ed. 1453.

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