Kinney Kinmon LAU, a Minor by and through Mrs. Kam Wai Lau, his Guardian ad Litem et al., Plaintiffs-Appellants. v.

Alan H. NICHOLS, President et al., Defendants-Appellees. ^{Footnote *} No. 26155.

United States Court of Appeals, Ninth Circuit.

Jan. 8, 1973.

Rehearing Eh Bane Denied June 18, 1973.

791

Edward H. Steinman (argued), of Youth Law Center, San Francisco, Cal., for plaintiffs-appellants.

Marian Wright Edelman, Director, Roger L. Rice, Staff Atty., Center for Law and Education, Harvard University, Cambridge, Mass., amicus curiae for plaintiffs-appellants.

Thomas M. O'Conner, City Atty. (argued), Raymond D. Williamson, Deputy City Atty., San Francisco, Cal., for defendants-appellees.

John D. Leshy, Atty. (argued), James L. Browning, U. S. Atty., San Francisco, Cal., David D. Gregory, Joseph B. Scott, Brian K. Landsberg, Attys., David L. Norman, Deputy Asst. Atty. Gen., Dept. of Justice, Washington, D. C, Jerris Leonard, Asst. Atty. Gen., Washington, D. C, amicus curiae for appellee.

Marian Wright Edelman, Director, Roger L. Rice, Staff Atty., Cambridge, Mass., amicus curiae for the appellant.

Before CHAMBERS and TRASK, Circuit Judges, and HILL,** District Judge.

TRASK, Circuit Judge: This appeal is from the district court's adverse disposition of a civil rights class action filed by appellants to compel the San Francisco Unified School District to provide all non-Englishspeaking Chinese students attending District schools with bilingual compensatory education in the English language. The defendants-appellees are the superintendent and members of the Board of Education of the School District, and members of the Board of Supervisors of the City and County of San Francisco. Two classes of non-English-speaking Chinese pupils are represented in this action. The first class, composed of 1,790 of the 2,856 Chinese-speaking students in the District who admittedly need special instruction in English, receive no such help at all. The second class of 1,066 Chinese-speaking students receive compensatory education, 633 on a

part-time (one hour per day) basis, and 433 on a full-time (six hours per day) basis. Little more than one-third of the 59 teachers involved in providing this special instruction are fluent in both English and Chinese, and both bilingual and English-as-a-Seeond Language (ESL) methods are used. As of September 1969, there were approximately 100,000 students attending District schools, of which 16,574 were Chinese.^{Footnote 1}

Appellants' complaint states seven causes of action, alleging violations of the United States Constitution, the California Constitution,^{Footnote 3} Section 601 of the

Civil Rights Act of 1964, 42 U.S.C. § 2000d, and provisions of the California Education Code. Essentially, appellants contend that appellees have abridged their rights to an education and to bilingual education, and disregarded their rights to equal educational opportunity among themselves and with Englishspeaking students. They pray for declaratory judgment and for preliminary and permanent injunctive relief mandating bilingual compensatory education in English for all non-English-speaking Chinese students.

The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 (federal question), and 1343 (civil rights). This court's jurisdiction arises under 28 U.S. C. § 1291, as the district court's order finding for appellees on the merits was a final order.³

As hereinbefore stated, the district court denied appellants all relief, and found for appellees on the merits. The court expressed well-founded sympathy for the plight of the students represented in this action, but concluded that their rights to an education and to equal educational opportunities had been satisfied, in that they received "the same education made available on the same terms and conditions to the other tens of thousands of students in the San Francisco Unified School District . . . ." Appellees had no duty to rectify appellants' special deficiencies, as long as they provided these students with access to the same educational system made available to all other students.*

In appealing this case, appellants argue ^{Footnote 5} that the district court misconstrued the meaning of the mandate of Brown v. Board of Education,  347 U.S. 483, 493, 74 S.Ct. 686, 98 L.Ed. 873 (1954), that education, "where the state has undertaken to provide it, is a right which must be made available to all on equal terms." In Brown, appellants continue, "equal terms" meant without segregation imposed by law, because even though there was "surface equality," it "caused ... a sense of inferiority in minority children which affected their ability and motivation to learn and tended to retard their educational and mental growth." Brief for Appellants at 21.

As applied to the facts of this case, appellants reason, Brown mandates consideration of the student's responses to the teaching provided by his school in determining whether he has been afforded equal educational opportunity. Even though the student is given the same course of instruction as all other school children, he is denied education on "equal terms" with them if he cannot understand the language of instruction and is, therefore, unable to take as great an advantage of his classes as other students. According to appellants, Brown requires schools to provide "equal" opportunities to all, and equality is to be measured not only by what the school offers the child, but by the potential which the child brings to the school. If the student is disadvantaged with respect to his classmates, the school has an affirmative duty to provide him special assistance to overcome his disabilities, whatever the origin of those disabilities may be.

Appellants' reading of Brown is extreme, and one which we cannot accept. There, the Court held that legally constituted and enforced dual school systems were unconstitutional as a denial of equal protection; that state-maintained "separate but equal" educational facilities, sanctioned by Plessy v. Ferguson,  163 U.S. 537, 16 S.Ct. 1138, 41 L. Ed. 256 (1886), were no longer to be allowed. Brown concerned affirmative state action discriminating against persons because of their race. Swann v. Board of Education,  402 U.S. 1, 5, 91 S. Ct. 1267, 28 L.Ed.2d 554 (1971). It struck down the denial of admission of black children to schools attended by white children under laws requiring or permitting segregation according to race. Brown v. Board of Education, 347 U.S. at 488, 74 S.Ct. 686, 98 L.Ed. 873. It followed the dictate of the Fourteenth Amendment, that "[n]o State shall . deny to any person . the equal protection of the laws." U.S. Const. Amend. XIV, § 1 (emphasis supplied). Therefore, under Brown, cases of de jure, as contrasted with de facto, discrimination violate the constitutional command. ^{Footnote 6}

Other cases have followed the same rationale, Gomperts v. Chase, 329 F.Supp. 1192, 1195 (N.D.Cal.1971), application for injunction pending filing of petition for writ of certiorari denied,

 404 U.S. 1237, 92 S.Ct. 16, 30 L.Ed.2d 30 (1971); see Swann v. Board of Education, supra, 402 U.S. at 15-18, 91 S.Ct. 1267; Kelly v. Guinn, 456 F.2d 100, 105 (9th Cir. 1972); Keyes v. School District No. 1,  445 F.2d 990, 999 (10th Cir. 1971), cert, granted, 404 U.S. 1036, 92 S.Ct. 707, 30 L.Ed.2d 728 (1972); Davis v. School District,  443 F.2d 573, 575 (6th Cir.), cert, denied, 404 U.S. 913, 92 S.Ct. 233, 30 L.Ed.2d 186 (1971); Deal v. Board of Education,  419 F.2d 1387, 1388 (6th Cir. 1969), cert, denied,  402 U.S. 962, 91 S.Ct. 1630, 29 L.Ed.2d 128 (1971), and  369 F.2d 55, 62 (6th Cir. 1966), cert, denied, 389 U.S. 847, 88 S. Ct. 39, 19 L.Ed.2d 114 (1967); Johnson v. School District, 339 F.Supp. 1315 (N. D.Cal.1971), application for stay pending appeal denied sub nom. Guey Heung Lee v. Johnson,  404 U.S. 1215, 92 S.Ct. 14, 30 L.Ed.2d 19 (1971); ^{Footnote 7}

Spencer v. Kugler, 326 F.Supp. 1235, 1239, 12411242 (D.N.J.1971), aff'd mem.,  404 U.S. 1027, 92 S.Ct. 707, 30 L.Ed.2d 723 (1972); Cisneros v. School District, 324 F.Supp. 599, 616-20 (S.D.Tex.1970), supplemented by 330 F.Supp. 1377, application for reinstatement of stay granted,  404 U.S. 1211, 92 S.Ct. 9, 30 L. Ed.2d 15 (1971), aff'd in part, modified in part and remanded,  467 F.2d 142 (5th Cir. 1972); United States v. Texas, 321 F.Supp. 1043 (E.D.Tex.1970), supplemented by 330 F.Supp. 235, aff'd,  447 F.2d 441 (5th Cir. 1971), application for stay denied sub nom. Edgar v. United States,  404 U.S. 1206, 92 S.Ct. 8, 30 L.Ed. 2d 10 (1971) cert, denied, 404 U.S. 1016, 92 S.Ct. 675, 30 L.Ed.2d 663 (1972); Spangler v. Pasadena Board of Education, 311 F.Supp. 501 (C.D.Cal.1970).

The parameters of de jure segregation are still being explored by the courts. ^{Footnote 8}

If the neighborhood school system is manipulated by the school board in such a way as to create, encourage or foster racial imbalance, courts have determined that a constitutional violation has occurred. E. g., Gomperts v. Chase, supra. The courts have found de jure segregation where the school district has redrawn boundaries of existing schools so as to increase racial imbalance, by detaching compact, racially homogeneous neighborhoods from attendance zones for schools populated predominantly by members of another race. See, e. g., Keyes v. School District No. 1, supra at 445 F.2d 1000-1001; Davis v. School District, supra at 443 F.2d 574; Johnson v. School District, supra at 339 F. Supp. 1318, 1336-1337; United States v. Texas, supra at 321 F.Supp. 1049-1050; Cisneros v. School District, supra at 324 F.Supp. 617-618;» Spangler v. Board of Education, supra at 311 F.Supp. 507-510.

Another indicium of de jure segregation is the selection of construction sites for and establishment of attendance boundaries of new schools. If this is done in such a way as to increase the racial imbalance in schools, as by marking zones which coincide with racial residential patterns, courts have detected a constitutional violation. See, e. g., Kelly v. Guinn, supra at 456 F.2d 105-107; Keyes v. School District No. 1, supra at 445 F.2d 1000; Davis v. School District, supra at 443 F.2d 575; Johnson v. School District, supra at 339 F.Supp. 1318, 1337; Cisneros v. School District, supra at 324 F.Supp. 617-619; Spangler v. Board of Education, supra at 311 F. Supp. 517-518.

Similarly, if mobile units and additions are used to accommodate overcrowding in racially identifiable schools when the reassignment of students to schools populated predominantly by scholastics of another race would be feasible, de jure segregation has been perceived. See, e. g., Keyes v. School District No. 1, supra at 443 F.2d 1000; Johnson v. School District, supra at 339 F.Supp. 1318-1319; Cisneros v. School District, supra at 324 F.Supp. 618-619; Spangler v. Board of Education, supra at 311 F.Supp. 518-519.

If the school district allows students to use transfers solely to move from minority to majority schools, courts have discerned a violation of the Constitution. See, e. g., United States v. Texas, supra at 321 F.Supp. 1049; Cisneros v. School District, supra at 324 F.Supp. 619; Spangler v. Board of Education, supra at 311 F.Supp. 520-521.

School boards have likewise been charged with practicing de jure segregation if they hire and assign faculty on the basis of race, thereby creating racially identifiable schools. See, e. g., Kelly v. Guinn, supra at 456 F.2d 106107; Johnson v. School District, supra at 339 F.Supp. 1318; Cisneros v. School District, supra at 324 F.Supp. 619-620; Spangler v. Board of Education, supra at 311 F.Supp. 513, 515.

Intra-class grouping, when it operates to separate students by race and without reference to ability, has been considered constitutionally infirm. See, e. g., Spangler v. Board of Education, supra at 311 F.Supp. 519-520. ^{Footnote 10}

And a state agency's failure to consolidate small school districts solely because each is populated by predominantly one and a different race was thought to contravene the constitutional mandate. See United States v. Texas, supra at 321 F. Supp. 1047-1048.

Appellants have neither alleged nor shown any such discriminatory actions by appellees. The evidence, that English is and has been uniformly used , as the language of instruction in all district schools, does not evince the requisite discrimination in the maintenance of this otherwise proper policy.

11

Neither can appellants invoke the teachings of cases like Gaston County v. United States,  395 U.S. 285, 89 S.Ct. 1720, 23 L.Ed.2d 309 (1969); Griffin v. School Board,  377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964); Lane v. Wilson,  307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281 (1939) ; Guinn v. United States,  238 U.S. 347, 35 S.Ct. 926, 59 L. Ed. 1340 (1915); United States v. Logue,  344 F.2d 290 (5th Cir. 1965); Meredith v. Fair,  298 F.2d 696 (5th Cir. 1962); and Franklin v. Parker, 223 F. Supp. 724 (M.D.Ala.1963), aff'd as modified in other part,  331 F.2d 841 (5th Cir. 1964). In those cases, facially neutral policies were held unconstitutional not simply because the burdens they created fell most heavily upon Blacks, but be-

cause the states' actions perpetuated the ill effects of past de jure segregation.

Although in its amicus curiae brief the Center for Law and Education, Harvard University, portrays appellants as "members of an identifiable racial minority which has historically been discriminated against by state action in the area of education . . .," Brief at 28, 13 appellants have alleged no such past de jure segregation. More importantly, there is no showing that appellants' lingual deficiencies are at all related to any such past discrimination. This court, therefore, rejects the argument that appellees have an affirmative duty to provide language instruction to compensate for appellants' handicaps, because they are carry-overs from state-imposed segregation. See Swann v. Board of Education,  402 U.S. 1, 15, 91

S.Ct. 1267, 30 L.Ed.2d 728 (1971). If there are any such remnants, that appellants' primary language is Chinese has not been shown to be one of them.

It is with this reasoning in mind that we consider, and distinguish, United States v. Texas, 342 F.Supp. 24 (E.D. Tex.1971), a case which was brought to our attention by the Center Brief at 35-37, and heavily relied upon by appellants during oral argument. To be sure, in that order the court mandated bilingual education for Mexican-American and Anglo-American students in the San Felipe-Del Rio Consolidated Independent School District. However, the basis for that order was the court's prior determination, 321 F.Supp. 1043 (1970), supplemented by 330 F.Supp. 235, aff'd,  447 F.2d 441 (5th Cir.), application for stay denied sub nom. Edgar v. United States,  404 U.S. 1206, 92

S.Ct. 8, 30 L.Ed.2d 10 (1971), cert, denied, 404 U.S. 1016, 92 S.Ct. 675, 30 L.Ed.2d 663 (1972), that there had been de jure segregation. The purpose of the order was, therefore, to " 'eliminate discrimination root and branch,' Green v. New Kent County Board of Education, 392- U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), and to create a unitary school system 'with no [Mexican] schools and no white schools but just schools.' " United States v. Texas, supra at 342 F.Supp. 27 (E.D.Tex.1971); accord, 321 F.Supp. at 1052. As we have discussed, supra, such a rationale for requiring compensatory bilingual instruction is not applicable under the facts of this case.

In that case the court relied heavily upon a study by Dr. Cardenas concluding that the inability of the MexicanAmerican students to benefit from the educational system resulted from characteristics called "cultural incompatibilities" and English language deficiencies. These ethnically-linked traits'"albeit combined with other factors such as poverty, malnutrition and the effects of past educational deprivation" combine to identify this group and have "elicited from many school boards" the different and often discriminatory treatment. The court's comprehensive remedial education plan included mandated programs to develop language skills in a secondary language "(English for many Mexican-American students, Spanish for Anglo students)" so that "neither English nor Spanish is presented as a more valued language." United States v. Texas, supra at 342 F.Supp. 26, 30.

Every student brings to the starting line of his educational career different advantages and disadvantages caused in part by social, economic and cultural background, created and continued completely apart from any contribution by the school system. That some of these may be impediments which can be overcome does not amount to a "denial" by the Board of educational opportunities within the meaning of the Fourteenth Amendment should the Board fail to give them special attention, this even though they are characteristic of a particular ethnic group. Before the Board may be found to unconstitutionally deny special remedial attention to such defi-

ciencies there must first be found a constitutional duty to provide them.

However commendable and socially desirable it might be for the School District to provide special remedial educational programs to disadvantaged students in those areas, or to provide better clothing or food to enable them to more easily adjust themselves to their educational environment, we find no constitutional or statutory basis upon which we can mandate that these things be done.

Appellants also rely on cases which have held it unconstitutional for a State to condition access to the criminal system upon the payment of money. E. g. Mayer v. Chicago,  404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971); Williams v. Oklahoma City,  395 U.S. 458, 89 S.Ct. 1818, 23 L.Ed.2d 440 (1969) ; Draper v. Washington,  372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963); Douglas v. California,  372 U.S. 353, 83 S.Ct. 814, 9 L. E.2d 811 (1963); Smith v. Bennett,  365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961); Burns v. Ohio,  360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209 (1959); Griffin v. Illinois,  351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). See also Tate v. Short,  401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971). Appellants reason that both criminal and education systems are products of State government to which appropriate persons must submit themselves. ^{Footnote 13}

And, just as the indigent convict cannot take proper advantage of the legal system available to him if he does not have a lawyer, or a sufficient record of his trial, or enough money to activate the review process or pay his fine, so the Chinese-speaking children in this case lost the benefits of the educational system because they cannot understand the language in which they are taught. Furthermore, the parallel continues, it is argued, in the fact that a convict's poverty is no more ascribable to the State than the language deficiency of these non-English-speaking Chinese students.

These criminal cases are distinguishable, however, because the ability of a convict to pay a fine or a fee imposed by the state, or to pay a lawyer, has no relationship to the purposes for which the criminal judicial system exists. Wealth is irrelevant to the factual determination of guilt, and is extraneous to resolution of related legal disputes. See Mayer v. Chicago, supra at 404 U.S. 193, 196, 92 S.Ct. 410, 30 L.Ed.2d 872; Griffin v. Illinois, supra at 351 U.S. 1718, 21-22, 76 S.Ct. 585. See also Tate v. Short, supra at 401 U.S. 399, 91 S.Ct. 668, 28 L.Ed.2d 130. In our case, on the other hand, the State's use of English as the language of instruction in its schools is intimately and properly related to the educational and socializing purposes for which public schools were established. ^{Footnote 14}

This is an English-speaking nation. Knowledge of English is required to become a naturalized United States citizen, 8 U.S.C. § 1423(1); likewise, California requires knowledge of the language for jury service, Cal.Code Civ.P. § 198(2), (3). Similarly, an appreciation of English is essential to an understanding of legislative and judicial proceedings, and of the laws of the State, Cal.Const. art. IV, § 24; Cal.Code Civ.P. § 185, and of the nation. Use of English in the schools has this firm foundation, while the requirement of money payments in the criminal system does not.

Because we find that the language deficiency suffered by appellants was not caused directly or indirectly by any State action, we agree with the judgment of the district court and distinguish this case from Brown v. Board of Education,  347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), and its progeny of de jure cases. Under the facts of this ease, appellees' responsibility to appel-