Education Law: Equality,Fairness, and Reform

Appendix of Supplemental Cases and Materials

Derek Black

Appendix of Supplemental Cases and Materials

Table of Contents

Chapter 2 Race

Doe v. Lower Merion School District …………………………………………………..2

Pryor v. NCAA…………………………………………………………………………..10

Chapter 4 Ethnicity, Language, and Immigration Status

Gomez v. Illinois State Bd. of Education………………………………………………..20

Valeria v. Davis…………………………………………………………………………..27

U.S. Department of Education, Policy Update on Schools' Obligations Toward National Origin Minority Students With Limited-English Proficiency (Sept. 27, 1991)………….33

Chapter 5 Gender

Mercer v. Duke………………………………………………………………………...…39

Online Chapter on Homelessness (entire chapter) ………………………………………………42

Chapter 7 Discipline

Board of Education v. Earls…………………………………………………………...…65

Chapter 9 Religion

Chapter subsection D. 1, Everson: One Case, Two Principles ………………………….69

Chapter subsection D. 2, The Rise of the Lemon Test, 1971 to 1985: No-Aid Separationism and the Prohibition on Entanglement……………………………………78

Chapter 2 Race

DOE v. LOWER MERION SCHOOL DISTRICT, 665 F.3d 524 (3d Cir. 2011)GREENAWAY, JR., CIRCUIT JUDGE.

This case involves school redistricting in Lower Merion, Pennsylvania and allegations that the implemented redistricting plan violates the Equal Protection Clause. Here, the Lower Merion School District (“the District”) used pristine, non-discriminatory goals as the focal points of its redistricting plan. The District Court concluded that the District’s assignment plan required strict scrutiny because race was a factor in the formation of the plan, but concluded that the plan is constitutional because it does not use race impermissibly. Upon review, we disagree with the District Court’s determination that strict scrutiny is the appropriate level of review, but we affirm the conclusion that the District’s school assignment plan is consonant with the Constitution.

The Supreme Court and this Court have yet to set forth any standard requiring the application of strict scrutiny when decisionmakers have discussed race, but the school assignment plan neither classifies on the basis of race nor has a discriminatory purpose. We hold that the plan here passes constitutional muster because it does not select students based on racial classifications, it does not use race to assign benefits or burdens in the school assignment process, it does not apply the plan in a discriminatory manner, and it does not have a racially discriminatory purpose. Strict scrutiny does not apply. The appropriate test is rational basis.

I. BACKGROUNDIn May 2004, a forty-five member Community Advisory Committee (CAC) of school

officials and community members investigated a plan to modernize the two high schools. [The CAC voted to build two high schools with equal student enrollment, which “would give students at both high schools the most equitable access to programs and facilities” and “alleviate traffic and parking problems near” Lower Merion High School (“LMHS”).] The Board accepted the CAC’s recommendation to equalize the student populations at the two high schools. Equalizing student enrollment between the two schools would require redistricting because, under the prior plan, LMHS had 700 more students than Harriton.

Students Doe 1 through 9 (“Students”) are African-American students who live in an area referred to as South Ardmore or the Affected Area, which is within the District. Ardmore, which is comprised of North Ardmore and South Ardmore, is a neighborhood in Lower Merion. [T]he Affected Area and North Ardmore have the highest concentration of African-American families.A. Redistricting

The redistricting process began in the summer of 2008 and ended on January 12, 2009, when the Board adopted Proposed Plan 3R. Initially, the Board authorized the Administration to develop proposed redistricting plans and to choose plans for the Board’s consideration. The Board also developed a list of Non-Negotiables to guide the redistricting process. On April 21, 2008, the Board adopted the following Non-Negotiables: 1.The enrollment of the two high schools and two middle schools will be equalized; 2.Elementary students will be assigned so that the schools are at or under the school capacity; 3. The plan may not increase the number of buses required; 4.The class of 2010 will have the choice to either follow the redistricting plan or stay at the high school of their previous year; and 5. Redistricting decisions will be based upon current and expected future needs and not based on past practices.

In May 2008, the District hired two outside consultants to compile a list of Lower Merion

residents’ values for the purpose of informing the redistricting process. [Those values included: maintaining social networks, academic and extracurricular excellence, comfortable social and physical environments; minimizing travel time; and cultivating various forms of diversity.]

In June 2008, the Board hired Dr. Ross Haber to create redistricting plans called “Scenarios.” Dr. Haber prepared eight sets of Scenarios. Most Scenarios would yield a percentage of African–American students between 7 and 10 percent. [The Administration eliminated two scenarios. One was eliminated because it resulted in “inequitable racial balancing,” did not equalize the high school populations, and resulted in longer bus rides. The other was eliminated because it “redistricted both the Affected Area and North Ardmore to Harriton” and it “[d]oes not support the community value of diversity as does other scenarios.”]B. Proposed Plans

[The Administration presented three proposed plans to the school board and the public. When Plan 1 was presented, it made reference to achieving racial, socio-economic, and special needs balance among the schools and included the projected racial demographics of the schools. This information was removed from subsequent postings of the plan. Proposed Plans 1 and 2 would have districted the students from the Affected Area to LMHS and those from North Ardmore to Harriton. Plan 1 would have resulted in a 9.9 percent African American at Harriton and Plan 2 7.8 percent. The Board rejected Plan 1 “because it resulted in excessive travel times for students.” The Board rejected Plan 1 because its feeder system would have separated some students who attended middle school together as they entered high school. The Board thought the failure to keep students together going into high school was at odds with community concerns.

“Proposed Plan 3 was projected to result in African–American students accounting for 9.6 percent of Harriton's student population. Under this plan, students remained with the same group of students from kindergarten through grade twelve.” The Board members were made aware of and discussed these racial impacts.

Due to community concerns about the walk zones in this Plan, the Board revised the plan, which became Plan 3R. “The main difference between Proposed Plan 3R and Proposed Plan 3 is that Plan 3R expanded Plan 3's abbreviated LMHS walk zone to the LMHS walk zone's historical boundaries. The historic LMHS walk zone did not include the Affected Area and it did not have a high concentration of African–American students. Under Proposed Plan 3R, all students assigned to LMHS and all students in the historic walk zone can choose to attend either high school.”

All of the plans would have created total enrollments of roughly the same size at both high schools and included a grandfather clause to permit current high school students to finish high school where they were currently enrolled.]

On December 15, 2008, Proposed Plan 3R was presented at a public Board meeting. Dr. McGinley testified that it was impossible to know the diversity data for Plan 3R because the grandfathering provision allowed so many students to choose to attend either high school. The presentation for Plan 3R did not include any diversity data. Hours before the Board's vote on Plan 3R, Dr. McGinley emailed to the Board projected Plan 3R enrollment data for race and ethnicity, socioeconomic status, and disability. Dr. McGinley testified that he sent these projections in response to a flyer that alleged the plan was “artificially designed to create token diversity at Harriton.” [He also responded]that, of the 214 students who would be redistricted to Harriton, the 45 African–American students made up 21 percent of those students who would be redistricted under Plan 3R.

On January 12, 2009, the Board voted to adopt Plan 3R. All of the Board members testified that they did not cast their vote or give their support based on race. Four of the Board members who supported the plan stated they did so primarily because they believed that the educational continuity of the 3–1–1 Feeder Pattern provided substantial benefits. Six of the Board members who supported the plan indicated they did so due to the plan's educational benefits and the Administration's support for the plan.

III. ANALYSISA. Equal Protection Clausei. Level of Scrutiny

The Equal Protection Clause of the Fourteenth Amendment provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=USCOAMENDXIVS2&FindType=L The central purpose of the Clause “is to prevent the States from purposely discriminating between individuals on the basis of race.” Shaw v. Reno, 509 U.S. 630, 642 (1993). A government action does not necessarily purposely discriminate merely because it is race-related.   Crawford v. Bd. of Educ., 458 U.S. 527, 538 (1982) (“a distinction may exist between state action that discriminates on the basis of race and state action that addresses, in neutral fashion, race-related matters .... the Equal Protection Clause is not violated by the mere repeal of race-related legislation or policies that were not required by the Federal Constitution”). Thus, “[p]roof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.”

Precedent in this Court and the Supreme Court has established that “[i]ntentional discrimination can be shown when: (1) a law or policy explicitly classifies citizens on the basis of race; (2) a facially neutral law or policy is applied differently on the basis of race; or (3) a facially neutral law or policy that is applied evenhandedly is motivated by discriminatory intent and has a racially discriminatory impact.” [When racially discriminatory purpose is established, w]e apply strict scrutiny. However, “absent a racially discriminatory purpose, explicit or inferable, on the part of the [decisionmaker], the statutory distinction is subject only to rational basis review.” United States v. Frazier, 981 F.2d 92, 95 (3d Cir. 1992).

1. Scrutiny Inquirya. Intentional Discrimination Shown by Racial Classification

“The term racial classification ‘normally refers to a governmental standard, preferentially favorable to one race or another, for the distribution of benefits.’” “A statute or policy utilizes a ‘racial classification’ when, on its face, it explicitly distinguishes between people on the basis of some protected category.”

Plan 3R is facially race neutral, assigning students to schools based only on the geographical areas in which they live. The Plan, on its face, neither uses racial classification as a factor in student assignment nor distributes any burdens or benefits on the basis of racial classification. The lack of racial classification in Plan 3R distinguishes Plan 3R from the policies in every Supreme Court equal protection education case upon which Appellants rely in their brief. [I]n this manner, Plan 3R starkly differs from the policies at issue in Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007), Gratz v. Bollinger, 539 U.S. 244 (2003), Grutter v. Bollinger, 539 U.S. 306 (2003), Regents of the Univ. of California v. Bakke, 438 U.S. 265 (1978), Brown v. Bd. of Educ., 347 U.S. 483 (1954), , McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950), and Sweatt v. Painter, 339 U.S. 629 (1950). In each of those cases, the school district or university policy at issue used racial classifications as the sole factor, or as one factor among

many, to make determinations regarding student school assignments or admission to a higher education institution. In Bakke, the Court even noted that the policy “involves a purposeful, acknowledged use of racial criteria. This is not a situation in which the classification on its face is racially neutral, but has a disproportionate racial impact. In that situation, plaintiff must establish an intent to discriminate.” 438 U.S. at 289 n. 27.

Appellants repeatedly frame the central question in this case as whether “race was a factor,” or whether race was considered. Although Appellants argue that, if race is a factor in a decision, we must apply strict scrutiny, counsel for Appellants admitted at oral argument that being aware of or considering race when making some decisions can be proper within certain circumstances, including doing so to achieve a better racial composition within a school. In any event, these arguments are irrelevant to our inquiry. Appellants and the District Court conflate the consideration or awareness of race with (1) racial classifications and (2) racially discriminatory purpose. Equal protection law does not make the same conflation. As a result, both the District Court and Appellants improvidently believed that the appropriate level of scrutiny to apply was strict scrutiny.

The District Court conflated discriminatory purpose with the consideration or awareness of race and in doing so stated an incorrect standard for determining the appropriate level of scrutiny. The District Court cited the Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 562 (3d Cir. 2002) holding that an action adopted because of “a discriminatory purpose based on race” requires strict scrutiny analysis. In restating that holding, however, the District Court substituted “race” for “discriminatory purpose,” and incorrectly characterized Pryor to hold that, “once race has been shown to be a motivating factor in decision making, all racial classifications must survive strict scrutiny.”

A racial classification occurs only when an action “distributes burdens or benefits on the basis of” race. In United States v. Hays, 515 U.S. 737 (1995), the Court noted that the record contained “evidence tending to show that the legislature was aware of the racial composition of [the districts in which the plaintiffs lived],” but the Court also noted that “the legislature always is aware of race when it draws district lines.” Id. at 744. “That sort of race consciousness does not lead inevitably to impermissible race discrimination” and proof of that race consciousness “in the redistricting process is inadequate to establish injury in fact.” Id. at 745-46. Moreover, the Court noted that the justices had “never held that the racial composition of a particular voting district, without more, can violate the Constitution.” Id. at 746.

In Arlington Heights, the Supreme Court noted that, “[w]hen there is a proof that a discriminatory purpose has been a motivating factor in the decision, ... judicial deference is no longer justified.” Arlington Heights v. Metro. Hous. Dev., 429 U.S. 252, 265-66 (1977). Neither Pryor nor Arlington Heights stands for the proposition that strict scrutiny must be applied when race, but not a discriminatory purpose, was a motivating factor. Racially discriminatory purpose means that the decisionmaker adopted the challenged action at least partially because the action would benefit or burden an identifiable group. Pers. Adm’r of Massachusetts v. Feeney 442 U.S. 256, 279 (1979) (“discriminatory purpose” “implies that the decisionmaker ... selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ “the action's beneficial or adverse effects “upon an identifiable group”). Thus, the mere awareness or consideration of race should not be mistaken for racially discriminatory intent or for proof of an equal protection violation.

Appellants also conflate a school assignment policy that explicitly classifies based on race with the consideration or awareness of neighborhood racial demographics during the

development and selection of a policy. The former is a facially racial policy, such as the policies in Seattle, Gratz, Grutter, Bakke, Brown, McLaurin, and Sweatt. The consideration or awareness of race while developing or selecting a policy, however, is not in and of itself a racial classification. Thus, a decision maker's awareness or consideration of race is not racial classification. Designing a policy “with racial factors in mind” does not constitute a racial classification if the policy is facially neutral and is administered in a race-neutral fashion.  

When the Supreme Court, in Seattle, Grutter, and Bakke, has referenced applying strict scrutiny to a “plan that uses race as one of many factors,” it has meant just that—strict scrutiny should be applied to a school admissions or student assignment policy or plan that uses race as a factor to determine whether a student is admitted or assigned to a school. The Court has never held that strict scrutiny should be applied to a school plan in which race is not a factor merely because the decision makers were aware of or considered race when adopting the policy. When there is no racial classification in the plan, strict scrutiny is only applied if plaintiffs show discriminatory intent.

The first alternative by which intentional discrimination can be shown—racial classification—is inapposite to Plan 3R and the facts of this case. Strict scrutiny analysis is not appropriate on this basis.

b. Intentional Discrimination Shown by Discriminatory Application of a Facially Neutral PolicyThe second alternative to show intentional discrimination—that a facially neutral policy is

applied differently on the basis of race—is also inapplicable to Plan 3R. There is no record evidence that the District has applied Plan 3R in a discriminatory manner. [T]o demonstrate that Plan 3R is applied differently on a discriminatory basis, Appellants would have needed to show below that the District enforces Plan 3R within some areas or regarding some students, on the basis of race, while not enforcing Plan 3R within other areas or regarding other students. Appellants have not alleged that Plan 3R is enforced in a disproportionate manner.

c. Intentional Discrimination Shown by Discriminatory Purpose for a Facially Neutral PolicyTo establish government action within the third alternative, a plaintiff is “required to prove

that the actions of ... officials (1) had a discriminatory effect and (2) were motivated by a discriminatory purpose.”

Although disproportionate impact, alone, is not dispositive, a plaintiff must show discriminatory impact in order to prove an equal protection violation under this third alternative. “[N]o case in [the Supreme] Court has held that a legislative act may violate equal protection solely because of the motivations of the men who voted for it.” Palmer v. Thompson, 403 U.S. 217, 224 (1971). Moreover, discriminatory impact must be shown to establish an equal protection violation because “plaintiffs must show that they have been injured as a result” of the governmental action to ensure that courts “can impose a meaningful remedy.”  

Appellants have not provided any evidence that Plan 3R treats similarly situated individuals of a different race in a different manner. Two-thirds of the students redistricted to Harriton were students who were not African–Americans and who lived in the Affected Area or other areas redistricted to Harriton under plan 3R. Plan 3R does not treat black students in the Affected Area and North Ardmore similarly, nor does it treat white students in either area similarly to other white students or differently from the black students in the same area.

Even if we were to conclude that Appellants have shown discriminatory impact, “the Fourteenth Amendment guarantees equal laws, not equal results.” Feeney, 442 U.S. at 273. The

Supreme Court held in Washington v. Davis that “[p]roof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” Arlington Heights, 429 U.S. at 266. The term “discriminatory purpose” “implies that the decisionmaker ... selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,” the action's beneficial or adverse effects “upon an identifiable group.” Feeney, 442 U.S. at 279. Racially discriminatory purpose means that the decisionmaker adopted the challenged action at least partially because the action would benefit or burden an identifiable group. “Even conscious awareness on the part of the [decisionmaker] that the [policy] will have a racially disparate impact does not invalidate an otherwise valid law, so long as that awareness played no causal role” in the adoption of the policy. Frazier, 981 F.2d at 95 (citing Feeney, 442 U.S. at 279).

In Arlington Heights, the Supreme Court outlined how courts should determine whether a discriminatory purpose was a motivating factor. The determination requires a “sensitive inquiry” into the available “circumstantial and direct evidence of intent,” including: (1) whether the official action has a racially disproportionate impact; (2) the historical background of the decision; and (3) the legislative or administrative history of the decision.  

If discriminatory impact cannot be “plausibly explained on a neutral ground, impact itself would signal that the real classification made by the law was in fact not neutral.” Id. at 275. However, “[j]ust as there are cases in which impact alone can unmask an invidious classification, there are others, in which—notwithstanding impact—the legitimate noninvidious purposes of a law cannot be missed.” Id. As stated above, Plan 3R does not have a discriminatory impact. Even if we were to find that Plan 3R has a discriminatory impact, the District has plausibly explained any such impact on a neutral ground. The Board's goals in redistricting included the Non–Negotiables of equalizing the enrollments of Harriton and LMHS and not increasing the number of buses required. The Community Values during redistricting included allowing students who walked to school to continue walking to school, minimizing travel-time for bused students, and to ensure that children were in comfortable learning environments.

In addition to these neutral bases for the selection of Plan 3R, the District Court noted other race-neutral explanations for the adoption of Plan 3R, including helping students attain educational excellence, [instituting a feeder pattern that would keep students together as they progressed to high school], and closing the achievement gap between students. Moreover, there is no evidence establishing that the District Court clearly erred when it found credible the Board members' testimony that race was not the basis of their votes for Plan 3R.

In Feeney, the Supreme Court held that the neutral purposes of a statute, aimed to benefit veterans “provide[d] the surest explanation for its impact” benefitting more men than women. The Court continued, stating that the law could not rationally be explained as a pretext for preferring men over women because significant numbers of those placed at a disadvantage by the law were men. Comparably, Plan 3R redistricts to Harriton a significant number of students who are not African–American. Even while grandfathering was still in effect, forty-four students were redistricted to Harriton for the 2009–2010 school year and thirty of those students, nearly two-thirds, are not African–American.

To ascertain whether there was discriminatory intent in the development and selection of Plan 3R, Appellants and the District Court appear focused on the administrative history, especially on statements made by Board members and the information included in reports and presentations. Appellants pay particular attention to when racial demographics only or racial demographics in addition to other socioeconomic demographics were or were not included in report estimates, slide presentations, personal notes, and on the District's website. Awareness of such data or

omitting such data, however, does not constitute discriminatory intent. “[C]onscious awareness” of a racially disparate impact of a facially neutral policy is irrelevant to equal protection analysis. Additionally, the mere awareness of data regarding racial demographics under various Scenarios and Proposed Plans is not necessarily awareness of racially disparate impact. The racial data showed, under some Scenarios and Proposed Plans, that there would not be a racially disparate impact. For a facially neutral policy, awareness of a racially discriminatory impact is only relevant if the policy is adopted at least in part because of a racially discriminatory impact.

While the statements upon which Appellants rely may indicate awareness or consciousness of race, the statements do not constitute discriminatory intent, i.e., that Plan 3R was developed or selected because it would assign benefits or burdens on the basis of race. Instead of being adopted for the purpose of discrimination, the statements indicate, if anything, that Board members and Administrators adopted Plan 3R in an attempt not to discriminate on the basis of race. Testimony that Scenario 1 was eliminated “due to inequitable racial balancing” could indicate that the Administration did not want to propose a plan that seemed to treat students differently on the basis of race, by having a disproportionate percentage of students of a certain race redistricted. Notably, the Administration decided not to formulate any proposed plans [that] would redistrict both areas with higher African–American populations, the Affected Area and North Ardmore, to [a single high school]. Thus, the only Scenarios selected to develop into proposed plans were those that did not treat the two areas with the highest African–American populations in the same manner. Because all of the Scenarios assigned students geographically, no Scenario or Proposed Plan treated similarly situated African–American students differently from other students. Moreover, the District eliminated the Scenarios that arguably treated differently situated African–American students similarly, by assigning both areas with higher African–American populations to the same school.

Given these circumstances, it is nearly inconceivable that the District intended to discriminate on the basis of race. [Board Member] DiBonaventuro's September 2008 email reaffirms the anti-discriminatory goals of the redistricting process. In her email, she stated that the Board should emphasize that it is not trying to increase Harriton's diversity, but that it, instead, is trying to ensure numerically equal total student enrollments at both high schools.

Board and Administrator references to “diversity” do not imply a discriminatory purpose. On the contrary, references to diversity in the context of this facially neutral policy implied that decisionmakers did not want the selected plan to have a racially disproportionate impact. Avoiding discriminatory impact seemed to be one of the District's goals in developing and adopting a plan. Because the African–American students were “more concentrated” geographically, assigning students based on geography could easily lend itself to disproportionate impact unless the Board members were aware of the demographics of the areas during the redistricting process.

Plan 3R has been applied consistently, regardless of race, and the majority of Board members' discussions regarding Lower Merion redistricting focused on neutral factors: (a) equalizing the populations at the two high schools, (b) minimizing travel time and transportation costs, (c) fostering educational continuity, and (d) fostering walkability.

Thus, none of the three alternatives necessary to show intentional discrimination and to trigger strict scrutiny is applicable to Plan 3R.

2. Racially Discriminatory Intent in Electoral RedistrictingThe District Court held that strict scrutiny was appropriate because it opined that the Affected

Area was “targeted” for redistricting to Harriton, in part, because it has a high concentration of African–American students. Similarly, our colleague, in her concurrence, concludes that we are required to apply strict scrutiny because, as she notes, the racial composition of neighborhoods was considered in determining school assignments. There is no precedent in this Court or the Supreme Court holding that we apply strict scrutiny in equal protection challenges alleging racial discrimination in education admissions or assignments because decisionmakers were cognizant of the racial demographics of neighborhoods when they selected the assignment plan.

At oral argument, counsel for Appellants compared Plan 3R to electoral redistricting, an area for which the Supreme Court has set out tests for determining whether strict scrutiny should be applied to redistricting that involves the consideration of racial demographics. It is not clear that the electoral redistricting precedent controls in the educational context, but, even if we were to apply that precedent, we would still hold that Plan 3R was not developed or adopted for a discriminatory purpose and, thus, should not be subjected to strict scrutiny.

In equal protection challenges to electoral redistricting, the Supreme Court has held that strict scrutiny does not apply to facially race neutral legislation merely because (a) “redistricting is performed with consciousness of race” or (b) because there was an “intentional creation of majority-minority districts.” Bush v. Vera, 517 U.S. 952, 958 (1996). The Court has held, instead, that, for strict scrutiny to apply to facially race neutral electoral redistricting legislation, the plaintiff must prove that (1) the statutes, “although race neutral, are, on their face, ‘unexplainable on grounds other than race,’” Shaw I, 509 U.S. at 643 or that (2) “legitimate districting principles were ‘subordinated’ to race” such that “race must be ‘the predominant factor motivating the legislature's [redistricting] decision,’” Vera, 517 U.S. at 958–59, or the statute.

For strict scrutiny to apply to Plan 3R, the plan would have to be “unexplainable on grounds other than race” or it must be shown that other legitimate redistricting principles were subordinated to race such that race was the predominant factor motivating the District's redistricting decision.   Shaw I, 509 U.S. at 643. Appellants have not cast doubt on the proposition that equalizing the student enrollments at the two high schools was the primary factor motivating redistricting and the adoption of Plan 3R. The other primary factors motivating the decision included: minimizing travel time and transportation costs, increasing educational continuity such that students who attended the same elementary school would stay together through middle school and high school, and fostering walkability.

If race had been the predominant factor, the District likely would have adopted a plan that: moved white students to LMHS, while moving African–American students to Harriton without increasing the student population at Harriton or decreasing the student population at LMHS; or draw new district lines that were not quadrilateral, following major streets and natural boundaries. Additionally, race does not explain why the District would adopt Plan 3R [over the others plans that were under consideration.] Thus, strict scrutiny would not be applied to Plan 3R under the Supreme Court's electoral redistricting precedent.

ii. Constitutional AnalysisUnder rational basis review, the challenged classification must be upheld if it is “rationally

related to a legitimate state interest.” Applying this deferential standard of review, we conclude that Plan 3R is rationally related to legitimate government interests. As noted by the District Court, the District presented evidence that Plan 3R is aimed at addressing the following goals: (a) equalizing the populations at the two high schools, (b) minimizing travel time and transportation costs, (c) fostering educational continuity, and (d) fostering walkability. Plan 3R is

reasonably related to these four goals. Equalizing the populations at Harriton and LMHS was the impetus for redistricting[, and was] required because, under the prior plan, LMHS had 700 more students than Harriton. Under Plan 3R, student enrollment at the two high schools is projected, under some estimates, to equalize to a difference of only a handful of students.

Plan 3R's goal of fostering walkability by restoring the historic LMHS walk zone, which is larger than the limited walk zone proposed prior to Plan 3R's adoption, is rationally related to a legitimate state interest because it saves the District money that would otherwise be needed to cover the cost of buses. The District has a legitimate interest in not increasing its number of buses because doing so would increase costs. Plan 3R is rationally related to this goal because Plan 3R does not increase the number of buses required and it also takes into account minimizing travel times. Additionally, the Affected Area is one of the areas closer to Harriton in travel time. Accordingly, the District Court's selection of Plan 3R has a rational basis and does not violate the Equal Protection Clause.

ROTH, CIRCUIT JUDGE, Concurring:I concur with the result reached by the majority. I would, however, arrive there by a more

arduous route. I believe that strict scrutiny is the test to be applied here. My concern is that the consideration of the racial composition of individual neighborhoods to determine school assignments may be just as problematic as the consideration of the race of individual students. Plan 3R does involve race: not the race of individuals but the racial balance of neighborhoods. An awareness of the racial make-up of the neighborhoods is a factor in the assignment plan. This consideration of the racial composition of neighborhoods is, in my opinion, a parallel to the consideration of the race of the individual. It in effect brings consideration of race back into the formula.

PRYOR v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION288 F.3d 548 (3d Cir. 2002)

MICHEL, CIRCUIT JUDGE.In this close and complex appeal, we must decide whether Plaintiffs have stated a claim for

purposeful, racial discrimination, by alleging (among other things) that the National Collegiate Athletic Association adopted certain educational standards because of their adverse impact on black student athletes seeking college scholarships. We hold that they have sufficiently alleged a claim for relief.

IIn 1992, the Division I schools voluntarily adopted the NCAA's Proposition 16, the provision

at issue in this case. Proposition 16 modifies Proposition 48 by increasing the number of core high school courses in which a student athlete must have a minimum GPA, and it determines athletic eligibility based on a formula that combines a student-athlete's GPA and standardized test score. Proposition 16 essentially increases the minimum scores that a high school student athlete must attain to qualify for athletic scholarship aid and eligibility for practicing and competing as a college freshman. For example, if a student athlete had a 2.0 GPA in the core high school courses, he or she must score a 1010 on the SAT. The district court found in a similar case that Proposition 16 puts a greater emphasis on standardized test scores than did its predecessor (Proposition 48).

In 1997, counsel for Plaintiffs in this case sued the NCAA on behalf of different minority student athletes who claimed that Proposition 16 violated the regulations to Title VI of the 1964 Civil Rights Act. Cureton v. Nat'l Collegiate Athletic Assoc., 198 F.3d 107, 111 (1999) (“Cureton I”). Specifically, the Cureton plaintiffs alleged a Title VI violation based on the theory that Proposition 16 creates a disparate impact on racial minorities. Following discovery, the district court concluded that Proposition 16's disparate impact on African-American athletes violated the regulations to Title VI; and so, the court permanently enjoined the continued enforcement of Proposition 16. In so doing, the court accepted the NCAA's proffered goal of implementing Proposition 16 as a way to raise all student-athletes' graduation rates, but it rejected Proposition 16 as a legitimate means for accomplishing that goal. Further, the court held that although Proposition 16 may benefit black athletes by improving their overall graduation rate, it still adversely impacted minority athletes at the “front end” of the process, i.e., the eligibility of freshmen minority athletes.

This court reversed and remanded with instructions for the entry of judgment for the NCAA [because, even if it were a federal fund recipient,] Title VI regulations did not apply to the NCAA because the NCAA did not exercise “controlling authority” over its member institutions' “ultimate decision” about a student-athlete's eligibility to participate in collegiate athletics.” Roughly one year after this decision, the Supreme Court held that Title VI creates no claim for disparate impact, contrary to the theory alleged by the plaintiffs in Cureton I: “Title VI itself directly reach[es] only instances of intentional discrimination.” Alexander v. Sandoval, 532 U.S. 275, 281 (2001).

On remand to the district court, the Cureton plaintiffs moved to either amend their complaint or to have the judgment altered so as to add a claim of intentional discrimination based on the NCAA's “adoption and/or enforcement of Proposition 16.” Citing undue prejudice, delay and futility (i.e., some of the factors used to assess a motion to amend a complaint or judgment), the district court denied the motion [in Cureton v. Nat’l Collegiate Athletic Assoc., 252 F.3d 267 (3d

Cir. 2001) (Cureton II) and t]his court affirmed.

Pryor and Spivey Sue the NCAAIn February 2000, Pryor and Spivey sued the NCAA and sought to certify a class against it.

[The plaintiffs] alleged that, by adopting Proposition 16, the NCAA intentionally discriminated against them on account of their race, in violation of Title VI of the Civil Rights Act. As support for their race-discrimination claims, Plaintiffs' complaint cites often to NCAA memoranda and other evidence obtained during the Cureton litigation. In particular, the complaint notes that the NCAA responded to an interrogatory about its reasons for adopting Proposition 16 by identifying (as one of its “top ten reasons”) the goal that Proposition 16 would promote a higher graduation rate for black athletes and would thereby narrow the “Black/White Gap” between black student-athlete graduation rates and white student-athlete graduation rates. Citing statements from the district court's now-vacated decision in Cureton I, the complaint asserts that Proposition 16's “explicit race-based goal stands in stark contrast to the characterization of Proposition 16 as a facially neutral rule.” Further, it professes a reliance, in part, on the “serious questions” the Cureton court itself had about whether Proposition 16 “function[ed] simply as a proxy for a racial quota.”

In addition, the complaint identifies a memorandum from the NCAA dated July 1998 asserting that Proposition 48 and Proposition 16 have led to steady increases in the graduation rates for minorities and that no other proposed models would achieve that goal as well as Proposition 16 has. An affidavit from Graham Spanier, a former member of various NCAA committees, similarly avers that Proposition 48-the precursor to Proposition 16-had significantly improved graduation rates of student athletes, with the greatest increase coming among black student athletes. And another memorandum from an NCAA statistician calculates the projected graduation rates for black and white athletes under the Proposition 16 model as well as three alternative models. The memorandum indicates that Proposition 16 projected the highest graduation rate for black and white athletes.

Liberally construed, the complaint maintains that Proposition 16 achieves the NCAA's stated goal of improving graduation rates for black athletes relative to white athletes by simply “screen[ing] out” greater numbers of black athletes from ever becoming eligible in the first place, i.e., from ever receiving athletic eligibility and scholarship aid. Further, it maintains that although the NCAA knew that Proposition 16 would have a more adverse impact on black student athletes than on white student athletes, the NCAA went ahead and adopted Proposition 16 anyway, based on its “misguided view toward affecting African-American student-athletes' graduation rates by denying [scholarship] eligibility to greater numbers of” black student athletes. As support for this assertion, the complaint points to various studies, research and reports by the NCAA showing that Proposition 16 and its precursor (Proposition 48) would disproportionately and negatively impact black student athletes.

Citing these allegations, the complaint also lays out two theories of relief under Title VI. First, it asserts that because the NCAA adopted Proposition 16 knowing that it would adversely affect black student athletes, the NCAA thereby acted with “deliberate indifference” to Proposition 16's impact on African-American student athletes. And that indifference, the theory goes, amounts to the purposeful discrimination proscribed by Title VI. Alternatively, the complaint indicates that the evidence of the NCAA's knowledge about Proposition 16's impact as well as other “circumstantial evidence” establishes that the NCAA adopted this policy to intentionally deny athletic eligibility and scholarship aid to a greater number of black athletes.

“Any suggestion” that considerations of race did not at least partially motivate the NCAA's adoption of Proposition 16 is “pretextual.” In response, the NCAA moved to dismiss Plaintiffs' complaint under Fed. R. Civ. P. 12(b)(6) or, alternatively, for summary judgment.

The district court grants the NCAA's Motion to DismissIn July 2001, the [district] court dismissed the two theories that Pryor and Spivey advanced

to show purposeful discrimination. First, in the district court's analysis, Plaintiffs' theory about the NCAA's “deliberate indifference” could not stand because, under Alexander v. Sandoval, the Supreme Court has held that even if a federally funded entity knowingly adopts a rule that creates a disparate impact, Title VI still affords no remedy. Second, Plaintiffs alleged that a discriminatory purpose played a motivating factor in the NCAA's development and adoption of Proposition 16. But Proposition 16 is a facially neutral policy, the court stated; and policies that incidentally create a racially disparate impact (as opposed to policies that intentionally create a disparate impact) do not abridge Title VI. Further, the court determined that the NCAA's monitoring of the effects that its policies have upon minority athletes does not suggest that the NCAA improperly considered race in either the promulgation or continued enforcement of Proposition 16. Last, the court reasoned that Proposition 16 was motivated by the desire to improve graduation rates for all student athletes, leading the court to “find” that the NCAA's design and implementation of Proposition 16 occurred “in spite of” its alleged disparate impact, not “because of” that impact.

IV[T]he complaint and exhibits have stated a claim for relief for purposeful discrimination. As

more fully explained below, the complaint and exhibits show that the NCAA expressly considered race and how Proposition 16 would affect African-American athletes when it adopted this policy. Further, though the NCAA may have intended this race-based consideration for the “laudable” goal of increasing graduation rates for black student athletes, the complaint indicates that the policy was actually adopted to harm black athletes by preventing them from ever receiving college athletic scholarships and eligibility in the first place. Moreover, contrary to the assertions made in the NCAA's brief, none of the case law it cited, much less Supreme Court case law, absolves a decision maker from liability simply because it considered race for the “benevolent” purpose of helping a particular racial group. Indeed, the Supreme Court has made clear that considerations of race, well intentioned or not, can still subject a decision maker to liability for purposeful discrimination.

As stated, Plaintiffs' complaint and attached exhibits sufficiently allege a claim for purposeful discrimination in the adoption of an otherwise facially neutral policy. In effect, the complaint states that the NCAA purposefully discriminated against black student athletes by adopting a policy with the intent to reduce the number of black athletes who could qualify for athletic scholarship aid. We address this theory first and Plaintiffs' “deliberate indifference” theory thereafter.

1To recover under Title VI, Plaintiffs cannot simply assert that Proposition 16 has a

disproportionate effect on certain minorities. As the parties agree, Title VI provide[s] a private cause of action for intentional discrimination only. Alexander v. Sandoval, 532 U.S. at 281 (Title VI). To prove intentional discrimination by a facially neutral policy, a plaintiff must show that the relevant decisionmaker (e.g., a state legislature) adopted the policy at issue “‘because of,’ not

merely ‘in spite of,’ its adverse effects upon an identifiable group.” Personnel Adm’r of Massachusetts v. Feeney, 442 U.S. 256, 279, (1979); accord Gen. Bldg. Contractors Assoc. v. Pennsylvania,485 U.S. 375, 391 (1982). A mere awareness of the consequences of an otherwise neutral policy will not suffice. Feeney, 442 U.S. at 277-78, (holding that state legislature did not intentionally discriminate against women by enacting laws that gave hiring preferences to veterans even though the legislature was undoubtedly aware that most veterans were men; the legislative history underlying these preferences showed that the legislature always intended to offer the veterans' preference for “any person”).

“Determining whether invidious discriminatory purpose was a motivating factor [in the adoption of a facially neutral policy] demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Although considering evidence of impact would seem to contradict the principle that no claim for disparate impact lies under Title VI, the Supreme Court has more directly stated that the “important starting point” for assessing discriminatory purpose is the “impact of the official action” and “whether it bears more heavily on one race than another.” Arlington Heights v. Metro. Hous. Dev., 429 U.S. 252 (1977). As the Court has explained, the “impact of an official action is often probative of why the action was taken in the first place since people usually intend the natural consequences of their actions.” Id. at 266.

Other considerations relevant to the purpose inquiry include the “historical background of the ... decision; [t]he specific sequence of events leading up to the challenged decision; [d]epartures from the normal procedural sequence; and [t]he legislative or administrative history, especially ... [any] contemporary statements by members of the decisionmaking body.” Id. at 267-268. Owing perhaps to the principle that questions of intent and state of mind are ordinarily not amenable to summary adjudication, courts have only reluctantly upheld the Rule 12(b)(6) dismissal of a claim alleging unlawful discrimination in the adoption of an otherwise facially neutral policy.

2In this case, Plaintiffs have stated a claim for purposeful discrimination. As we are reviewing

this case at the Rule 12(b)(6) stage, we may affirm the judgment only if “it appears beyond doubt that no set of facts would entitle” Plaintiffs to relief. In addition, as the Supreme Court has recently confirmed, a complaint requires only a “short and plain statement” to show a right to relief, not a detailed recitation of the proof that will in the end establish such a right. “Malice, intent, knowledge, and other condition of mind of a person may be averred generally.” Fed. R. Civ. P. 9(b) (emphasis added).

Here, it does not appear beyond doubt that Plaintiffs have failed to sufficiently allege facts showing purposeful discrimination by the NCAA. The complaint and attached exhibits make clear that the NCAA considered race as one of its reasons for adopting Proposition 16, with the NCAA stating explicitly that it believed the adoption of this policy would increase the graduation rates of black athletes relative to white athletes. Further, the complaint alleges that the NCAA purposefully discriminated against black student athletes (like Plaintiffs) when it adopted Proposition 16 because the NCAA knew-via various studies and reports-that the heightened academic requirements of Proposition 16 would effectively “screen out” or reduce the percentage of black athletes who could qualify for athletic scholarships. In short, the complaint alleges that the NCAA adopted Proposition 16 because it knew that policy would prevent more black athletes from ever receiving athletic scholarship aid in the first place.

Citing Feeney, 442 U.S. at 279, the district court rejected this theory, holding that the NCAA

adopted Proposition 16 “in spite of” its impact on black athletes, not “because of” that impact. But as shown by the complaint, this is not a case where the NCAA simply realized or otherwise could have guessed that Proposition 16 would have had a disparate impact on black athletes. In Feeney, after all, the Supreme Court upheld a policy that favored veterans only after the compilation of a record showed that, yes, the state legislature almost certainly was aware that most military veterans were men; and that, as a result, a law expressly benefiting veterans would work to the detriment of women. Rather, this is a case where, based on the face of the complaint and all reasonable inferences thereto, the NCAA at least partially intended to reduce the number of black athletes who could attend college on an athletic scholarship by adopting the heightened academic requirements of Proposition 16. And as the exhibits and complaint allege, the NCAA knew of this impact because of the pre-Proposition 16 studies informing them about this outcome.

Moreover, unlike Feeney and nearly all the other precedents cited by the district court and the parties, the district court drew this distinction between the NCAA's “awareness” and its “purpose” at the pleading stage, even though issues involving state of mind (e.g., intent) are often unsuitable for a Rule 12(b)(6) motion to dismiss. Indeed, of all the precedents cited, few have upheld the dismissal of a purposeful discrimination claim for failure to state a claim for relief. In Stehney v. Perry, for example, unlike here, we affirmed the dismissal of a claim for purposeful discrimination, reasoning that the complaint had simply failed to allege that the facially neutral classification at issue “was adopted with the intent to discriminate against” a protected trait (gender). 101 F.3d 925, 937-38 (2002). But again, liberally construing the allegations, the complaint here conveys that the NCAA adopted Proposition 16 because it allegedly wanted to reduce the number of black athletes who could ever become eligible for athletic scholarships. The complaint further suggests that the NCAA's “stated goal” of wanting to improve graduation rates via Proposition 16 served as a mere “pretext” for its actual goal.

In Brown v. Philip Morris Inc., meanwhile, we upheld the dismissal of a § 1981 claim by a class of black smokers alleging that tobacco companies had purposefully discriminated against them in the sale and advertising of tobacco products. 250 F.3d 789, 797 (3d Cir. 2001). There, the complaint did not allege that the tobacco companies had deprived these smokers of the right to contract for, purchase or use their cigarettes; indeed, the plaintiffs conceded that the companies sold the same cigarettes on the same terms to black customers as they did to white customers. Id. In short, the plaintiffs pointed to no disparities in the companies' sales of cigarettes “apart from the generalized allegation that African-Americans are more likely than others to buy ... tobacco products as a result of targeted advertising.” Id. at 799.

Here, by contrast, the complaint alleges that the NCAA purposefully adopted a policy because that policy would reduce the number of black athletes who could receive athletic scholarships and compete in intercollegiate athletics as freshmen. Further, the complaint indicates that the NCAA knew this policy, Proposition 16, would and has adversely affected black student athletes, not white student athletes, because of the pre-Proposition 16 studies that informed them of this outcome. In other words, unlike the complaint in Brown, the complaint in this case does sufficiently state facts showing intentional, disparate treatment on account of race.

3The NCAA asserts that both the complaint and the exhibits thereto show only that the NCAA

intended to help black athletes by adopting Proposition 16, not harm them. In like vein, it claims that precedent from the Supreme Court, as well as from rulings by other circuit courts, consistently absolve decisionmakers from purposeful-discrimination liability so long as their

intent was “benign” or (in the words of Plaintiffs' counsel in Cureton) “laudable.” For two reasons, however, this argument is unconvincing.

First, as explained above, the complaint adequately alleges that the NCAA sought to achieve its stated goal of improving graduation rates by using a system that would exclude more African-American freshmen who, in the past, might have qualified for scholarships. Further, as the complaint and other exhibits suggest, the NCAA knew that using this approach would also screen out more black student athletes than white student athletes. So again, one could infer that, because the NCAA knew this, it was actually pursuing its stated goal and adopted means as a way to accomplish this sinister purpose while still seeming “laudable” and well intentioned. True, at first glance, some might well consider this theory far fetched. But we are reviewing this case at the pleading stage, not the summary judgment stage. Further, two allegations and the exhibits supporting them support the theory of the complaint: the NCAA openly considered race in formulating Proposition 16; and it had reason to know that the adoption of Proposition 16 would lead to the greater exclusion of black athletes from receiving college athletic scholarships.

Again, one may doubt that the NCAA harbored such ill motives. After all, many NCAA schools have long engaged in fierce recruiting contests to obtain the best high school athletes in the country, many of whom are black. And in today's world of collegiate athletics, better athletes can translate into more revenues and exposure for the schools that sign them. On the other hand, racial discrimination is nearly always irrational and thus, in the words of the Supreme Court, “odious” to our nation's principles of equality. Further, neither our court nor the district court can render “findings” in this case-at least not yet. And findings of fact, of course, turn on evidence, not on one's speculations about the issue. Nothing in our decision today precludes either summary judgment or trial findings that conclude the NCAA did not intend to discriminate on the basis of race.

Second, even assuming the NCAA's assertion that it had only “laudable” goals in adopting Proposition 16 and that it actually wanted only to improve graduation rates among black student athletes, the NCAA has cited no authority holding that a claim for purposeful discrimination may lie only if the accused decisionmaker had “bad intentions” or “animus.” Quite the contrary. The Court has squarely held that, well-intentioned or not, express or neutral on its face, a law or policy that purposefully discriminates on account of race is presumptively invalid and can survive only if it withstands strict scrutiny review.

Admittedly, this case is not subject to easy categorization. It differs from many Supreme Court precedents in that one could read the complaint and attached exhibits as showing that the NCAA adopted Proposition 16 to benefit the parties now suing for intentional discrimination. See, e.g. Arlington Heights. And it differs from Adarand Constructors Inc.v. Pena, 515 U.S. 200 (1995), City of Richmond v. Croson, 488 U.S. 469 (1989), Shaw v. Reno, 509 U.S. 630 (1993), Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978) and other reverse-discrimination cases in that Plaintiffs here are not, say, white student athletes claiming the NCAA adopted a race-based policy at their expense. Again, putting aside the more sinister theory about the NCAA purposefully using Proposition 16 as a means to discriminate against black athletes, Plaintiffs' complaint can also be read as alleging that (1) the NCAA considered race when it adopted Proposition 16; (2) it did so for the “benign” or “laudable” goal of improving graduation rates among black student athletes; but (3) the policy for achieving that goal-Proposition 16-backfired and has instead worked to the detriment of black athletes.

We need not address whether this theory fits within the analytical framework established by the Supreme Court. As stated earlier, liberally reading the complaint (as we must), Plaintiffs also

sufficiently allege that the NCAA adopted Proposition 16 for the malevolent purpose of excluding black student athletes from receiving scholarship aid and athletic eligibility. In this regard, we merely reiterate the Supreme Court's established view that a claim for purposeful discrimination may lie even if the decisionmaker adopted the allegedly discriminatory policy or rule at issue for a “beneficial” or “laudable” purpose.

V[W]e reverse the Rule 12(b)(6) dismissal of Plaintiffs' Title VI claims insofar as they rest on

allegations of purposeful discrimination, not deliberate indifference. We remand for additional proceedings consistent with this opinion.

NOTES AND QUESTIONS

1. Pryor involved a unique set of facts in that the NCAA’s was purporting to adopt a policy that might be beneficial for African Americans in the long run. Its asserted purpose was to help not to harm African Americans. For this reason, the NCAA made no attempt to hide its consideration of race. Only after the Court’s holding in Sandoval that Title VI does not provide a cause of action for disparate impact did the theory of the litigation shift to intentional discrimination. In the more typical case, a school district’s motivations, at least in regard to race, would not be obvious. The only obvious or clear evidence that a plaintiff might have is in regard to racially disparate impact.

2. Is the intent or motivation of the NCAA different than the defendant in Massachusetts v. Feeney? How? Is the intent or motivation of the NCAA distinct from that of the school district in Doe v. Lower Merion? Both Lower Merion and Pryor involve racial neutral policies designed to achieve a racially related goal? Why was desegregation assumed to be permissible and the NCAA’s goal’s impermissible?

3. What type of evidence might be relevant to or establish intent in racial disparities in discipline? In special education? In ability grouping? In student achievement? Because relevant evidence is so hard to unearth or because intentional discrimination simply is no longer prevalent, very few cases of intentional discrimination in education are filed and reach a judicial decision now. Which do you think is most likely? Regardless, many of the aggrieved parties continue to file complaints with the Office for Civil Rights because, as noted earlier, it can still enforce disparate impact claims administratively. For instance, the Office received over 1,000 complaints of race discrimination in fiscal year 2005. OFFICE FOR CIVIL RIGHTS, ANNUAL REPORT TO CONGRESS FY 2005 at appendix B.

4. Is there any reason why evidence of intent should be irrelevant to educational inequity claims or, at least, not decisive on its own?

5. Title VI actually enumerates three prohibitions in its text. No person shall on the grounds of race be “excluded from participation in, be denied the benefits of, or be subjected to discrimination.” 42 U.S.C. § 2000d. Are those three prohibitions redundant or distinct? Does the language “on the ground of race” mean something different in regard to each of

the three prohibitions? In Davis v. Monroe Conty. Bd. of Educ., 526 U.S. 629 (1999), the Court addressed this issue in the context of Title IX, which is modeled exactly after Title VI. The only difference in its first section is that prohibit gender rather than race discrimination. In Davis, the Court wrote: “The statute's other prohibitions, moreover, help give content to the term ‘discrimination’ in this context. Students are not only protected from discrimination, but also specifically shielded from being ‘excluded from participation in’ or ‘denied the benefits of’ any ‘education program or activity receiving Federal financial assistance.’ 20 U.S.C. § 1681(a). The statute makes clear that, whatever else it prohibits, students must not be denied access to educational benefits and opportunities on the basis of gender. We thus conclude that funding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” Id. at 650.

6. The Court’s use of the language “denied access to educational benefits” in Davis sounds potentially broader than discrimination based on race or gender. Suppose a school district maintained a special program at a school that was predominantly white, and that the other school in the district is predominantly minority. If the district maintained a policy prohibiting students from participating in programs that are not offered at their own school, would this amount to a denial of access or exclusion from a program or would their need to be evidence that district’s intent was racially discriminatory? In Neal v. Bd. of Trs. of the Cal. State Univ., 198 F.3d 763, 772 n. 8 (9th Cir. 1999), the Ninth Circuit wrote: “[A]thletic teams are gender segregated, and universities must decide beforehand how many athletic opportunities they will allocate to each sex. As a result, determining whether discrimination exists in athletic programs requires gender-conscious, group-wide comparisons. Because men are not ‘qualified’ for women's teams (and vice versa), athletics require a gender conscious allocation of opportunities in the first instance.” Relying on this rationale, some courts have found that it is enough that the school acted with intent, even if that intent was not to discriminate based on gender, because the result of their action was sufficient obvious. Pederson v. Louisiana State Univ., 213 F.3d 858, 880-81 (5th Cir. 2000); Barrett v. West Chester Univ. of Pennsylvania of State System of Higher Educ., 636 F. Supp. 2d 439 (E.D. Pa. 2003). Is gender different than race or might the same rational extend?

7. The Court later held that retaliation against individuals who complain about discrimination toward other person also amounts to intentional discrimination itself. Jackson v. Birmingham, 544 U.S. 167, 171, 175 (2005).

8. The plaintiffs in Pryor attempted to rely on the potentially broader concept of discrimination in Title IX and claimed that the defendant was deliberately indifferent to the racially disparate impact. In a portion of the opinion that is redacted above, the court dismissed this argument, reasoning that to recognize such a claim would “turn Alexander on its head, along with its prohibition against imposing liability for anything short of

purposeful discrimination.” Id. at 568. Deliberate indifference in regard to sexual harassment involves deliberate indifference to intentional discrimination, but deliberate indifference to disparate impact does not. Id. Other courts have reached a different conclusion. The district court in Maislin v. Tennessee State Univ., 665 F. Supp. 2d 922, 930 (M.D. Tenn. 2009), wrote: “[t]his attempt to distinguish intentional discrimination from deliberate indifference is unpersuasive in light of the Supreme Court's own post-Sandoval statement that its holding in Gebser involved ‘intentional sex discrimination in the form of a [defendant's] deliberate indifference’ to harassment.” The Tenth Circuit rejected Pryor 's reasoning on similar grounds. Bryant v. Ind. Sch. Dist., 334 F.3d 928, 933 (10th Cir. 2003) (holding that defendants who “make the intentional choice to sit by and do nothing” can be held liable)).

9. The law of intentional discrimination and disparate impact is explored further in subsequent chapters whose subjects intersect with race. For instance, the chapters on discipline, special education, poverty, and free speech will all address issues of race as a subtopic of concern.

Chapter 4Ethnicity, Language and Immigration Status

GOMEZ v. ILLINOIS STATE BOARD OF EDUCATION

811 F.2d 1030 (7th Cir. 1987)

ESCHBACH, SENIOR CIRCUIT JUDGE.

The primary question presented in this appeal is whether the district court erred in dismissing the plaintiffs' complaint on the ground that it failed to state a claim under § 204(f) of the Equal Educational Opportunities Act of 1974 (codified at 20 U.S.C. § 1703(f)), the Fourteenth Amendment, and Title VI of the Civil Rights Act of 1964. For the reasons stated below, we find that the lower court's dismissal of the complaint under Fed. R. Civ. P. 12(b)(6) was improper and will remand the action for further proceedings consistent with this opinion.

I

On April 16, 1985, the plaintiffs filed in federal district court an action under 42 U.S.C. § 1983 and Fed. R. Civ. P. 23(b)(2) in which they sought injunctive and declaratory relief on behalf of all Spanish-speaking children of limited English proficiency “who have been, are, or will be enrolled in Illinois public schools, and who have been, should have been, or should be assessed as limited English-proficient.” (In this opinion, children of limited English proficiency will be referred to as “LEP children.”) The six named plaintiffs-students enrolled in either the Iroquois West School District No. 10 or the Peoria School District No. 150-are Spanish speaking. Five are LEP children. The sixth has not yet had her English proficiency tested by her local school system. The complaint named as defendants the Illinois State Board of Education (“Board”) and the State Superintendent of Education, Ted Sanders (“Superintendent”).

[T]he plaintiffs alleged the following [in their complaint, which we accept as true, in an appeal of a dismissal under 12(b)(6)]: In general terms, the plaintiffs were injured because the Board and the Superintendent violated both federal and state law by failing to promulgate uniform and consistent guidelines for the identification, placement, and training of LEP children. As a direct result of the defendants' acts or omissions, the plaintiffs have been deprived of an equal education and have suffered economic hardship, undue delays in their educational progress, and in many cases exclusion from any educational opportunities.

Under Ill. Rev. Stat., ch. 122, ¶ 1A-4(C), the Board is responsible for the educational policies and guidelines for public and private schools from pre-school through grade 12. Under id. ¶ 14C-3, that state agency must prescribe regulations for local school districts to follow in ascertaining the number of LEP children within a given school district and for classifying these children according to the language in which they possess primary speaking ability and according to their grade level, age, or achievement level. The Board must also prescribe an annual examination for

determining the level of the LEP children's oral comprehension, speaking, reading, and writing of English. The Board has received and continues to receive federal funding for the implementation of educational programs designed to benefit LEP children.

The Superintendent is the chief executive officer of the Board. Under Illinois law, the Board has delegated to the Superintendent the authority to act on its behalf. The Superintendent has also been delegated the authority to develop rules necessary to “carry into efficient and uniform effect all laws for establishing and maintaining” public schools in the state including, inter alia, “teaching and instruction, curriculum, library, operation, administration and supervision.” The Superintendent is specifically charged with establishing rules for the approval and reimbursement of local school districts that provide transitional bilingual educational programs. Ill. Rev. Stat., ch. 122, ¶ 14C-12.

The Board has promulgated regulations requiring every local school district in Illinois to identify LEP children. Id. ¶ 14C-1. The identification process is referred to as a “census.” When a census at a particular school building identifies as LEP children 20 or more students who speak the same primary language, the local district is required to provide a transitional bilingual education program. Id. ¶ 14C-3. When the census discloses less than 20 such students, the Board does not conduct any review or supervision of the existence or adequacy of whatever services a district might provide to LEP children.

The plaintiffs allege that the Board and the Superintendent have failed to provide local districts with adequate, objective, and uniform guidelines for identifying LEP children. As a result, local districts perceive that they have unlimited discretion in selecting methods of identifying such children and as a result have been able to avoid transitional bilingual education requirements by identifying less than 20 LEP children of the same primary language in a particular building. In addition, because of the absence of proper guidelines, local districts have been found to use as many as 23 different language proficiency tests, 11 standardized English tests, 7 standardized reading tests, and many formal and informal teacher-developed tests. Some of these tests do not accurately measure language proficiency, so that LEP children are not properly identified. This array of tests has also, to the detriment of the plaintiffs, resulted in inconsistent results.

As a result of the defendants' failure to prescribe the proper guidelines, LEP children throughout the state have been denied the appropriate educational services they are entitled to under federal and state law. Until the proper guidelines are promulgated, the local districts will continue to deny the plaintiffs such services. The Board and the Superintendent have failed, and continue to fail, to support and enforce the statutory and regulatory requirements against those local districts that are not complying with the existing requirements. In addition, the defendants have also failed to withhold federal and state funds from the non-complying districts. They have, in violation of federal law, failed to provide equal educational opportunities to those students in attendance centers with less than 20 LEP children with the same primary language. The Board

and the Superintendent have identified, as of March of 1984, 38,364 Spanish-speaking LEP children. Only 33,179 are in transitional bilingual educational programs. Thus, 5,185 students identified as LEP children are being denied adequate educational programs and equal educational opportunities.

According to the complaint, the defendants' actions of failing to provide local districts with proper guidelines for the identification and placement of LEP children and of failing to monitor and enforce the local districts' compliance with the law, violate the plaintiffs' rights under (1) § 204(f) of the Equal Educational Opportunities Act of 1974 (“EEOA”), codified at 20 U.S.C. § 1703(f).

[T]he district court ruled that no particular remedy is set forth in the EEOA for implementing bilingual education, so that a state is free to establish its own program and to delegate to local school districts the primary burden of implementing it. According to the lower court, once a state has passed a statute setting up a transitional bilingual education program and once the state's board of education has drawn up and promulgated guidelines for the program's implementation, the burden of execution shifts to the local districts, and the state agencies have no further obligations.

The court concluded that the Board and the Superintendent had issued “detailed” regulations, so that the defendants had no further duty under Illinois or federal law. Accordingly, any remedy available to the plaintiffs must come from the local districts. The court went on, however, to conclude that the state defendants “are not the proper parties ... under § 1703(f).” 614 F.Supp. at 347. The court, therefore, dismissed the plaintiffs' complaint and directed them to file a new complaint under § 1703(f) against the local school officials in the federal district court in which the districts are located.

B. Review of Dismissal of Complaint

1. Equal Educational Opportunities Act of 1974

The relevant provisions of the EEOA are set forth in § II(A)(2)(a) of this opinion and will not be repeated herein. The EEOA was a floor amendment to the 1974 legislation amending the Elementary and Secondary Education Act of 1965. There is virtually no legislative history on the provision, and we agree with the observation of the Fifth Circuit in Castaneda v. Pickard, 648 F.2d 989, 1001 (5th Cir. 1981), that in interpreting floor amendments unaccompanied by illuminating debate a court must adhere closely to the ordinary meaning of the amendment's language.

Congress has provided us with little guidance for the interpretation of § 1703(f). The term “appropriate action” used in that provision indicates that the federal legislature did not mandate a specific program for language instruction, but rather conferred substantial latitude on state and local educational authorities in choosing their programs to meet the obligations imposed by

federal law. But, as noted in Castaneda, “Congress also must have intended to insure that schools made a genuine and good faith effort, consistent with local circumstances and resources, to remedy the language deficiencies of their students and deliberately placed on federal courts the difficult responsibility of determining whether that obligation had been met.” In addition, it is clear that § 1703(f) places the obligation on both state and local educational agencies to provide equal educational opportunities to their students.

We are, of course, not unmindful of an important institutional limitation that is present even in the absence of the broad language of § 1703(f). Because of the nature of the judicial process, federal courts are poorly equipped to set substantive standards for institutions whose control is properly reserved to other branches and levels of government better able to assess and apply the knowledge of professionals in a given field (here elementary and secondary education). In such a situation, we must formulate legal rules that protect the plaintiffs' interests in obtaining equal educational opportunities (through the elimination of language barriers) and that give guidance to educational agencies in establishing programs to promote those interests. At the same time, we must be careful not to substitute our suppositions for the expert knowledge of educators or our judgment for the educational and political decisions reserved to the state and local agencies. See Castaneda, 648 F.2d at 1009.

It is for these reasons that we believe we should review a state's implementation of § 1703(f) in a manner similar to that which we employ in reviewing an administrative agency's interpretation and implementation of its legislative mandate. Although Congress has provided in § 1703(f) that the spectrum of permissible choice for educational agencies would be broad, that does not mean that the spectrum is without discernible boundaries. This is not a case in which there are no substantive rules to apply, so that there is “neither legal right nor legal wrong.” The term “appropriate action” is not simply precatory, but must be given content with a mind to the EEOA's allocation of responsibilities between the courts and the schools. The duty remains upon us to interpret and enforce congressional enactments, and we cannot accord such sweeping deference to state and local agencies that judicial review becomes in practice judicial abdication.

We find that, as a general matter, the framework set out in Castaneda, 648 F.2d at 1009, provides the proper accommodation of the competing concerns identified above. Of course, we do not mean to say that we are adopting without qualification the jurisprudence developed in the Fifth Circuit regarding the interpretation of the EEOA. However, the Castaneda decision provides a fruitful starting point for our analysis.

First, we must examine carefully the evidence of record regarding the soundness of the educational theory or principles upon which the challenged program is based. So long as the chosen theory is sound, we must defer to the judgment of the educational agencies in adopting that theory, even though other theories may also seem appropriate. Second, we must determine whether the programs actually used by a school system are reasonably calculated to implement effectively the educational theory adopted by the system. After providing substantial leeway for

the school system to choose initially its program, we would not be assuring that “appropriate action” was being taken if we found that the school system, after adopting an acceptable theory of instruction, failed to provide the procedures, resources, and personnel necessary to apply that theory in the classroom. Finally, we must decide whether a school's program, although ostensibly premised on a legitimate educational theory and adequately implemented initially, fails, after a period of time sufficient to give the plan a legitimate trial, to obtain results that would indicate that the language barriers confronting the students are actually being overcome. In other words, the program can pass the first two thresholds of Castaneda, yet may after a time no longer constitute appropriate action for the school system in question, either because the theory upon which it was based did not ultimately provide the desired results or because the authorities failed to adapt the program to the demands that arose in its application. Judicial deference to the school system is unwarranted if over a certain period the system has failed to make substantial progress in correcting the language deficiencies of its students.

The defendants maintain that the Castaneda decision applies only to local school districts. We disagree. There is certainly no language in that case to suggest that it is so limited. Indeed, the Fifth Circuit in a subsequent decision applied the Castaneda guidelines to an entire state school system. See United States v. State of Texas, 680 F.2d 356, 371-72 (5th Cir. 1982). There will be, of course, differences in the application of the Castaneda analysis depending on whether a state or a local program is at issue. The question is primarily one of the intensity of judicial review. For example, the state school board and its superintendent are obviously not directly involved in the classroom education process. Thus, state educational agencies can only set general guidelines in establishing and assuring the implementation of the state's programs. That does not mean, however, that they have no obligations under the EEOA, for even those general measures must constitute “appropriate action.” If a local district is involved, however, then a consideration of what actually occurs in the classroom might be appropriate.

In this case, the first step of the Castaneda analysis, i.e., whether the program at issue is based on sound educational theory, is not implicated, because the plaintiffs have no quarrel with the basic “transitional bilingual” education program the state of Illinois has chosen for LEP children. The plaintiffs do maintain, however, that the defendants have failed to meet the second step of Castaneda, which relates to implementation. Obviously, then, if the defendants have failed to satisfy step two, we need not consider step three, because this final step assumes that there has been an adequate initial implementation of the program.

That brings us to the central issue of this dispute: What obligation does § 1703(f) impose on state (as opposed to local) educational agencies for the implementation of programs designed to provide LEP children with an equal educational opportunity? Accepting (as we must) the plaintiffs' allegations as true, the district court's decision means that the defendants need only issue regulations that fail to provide local districts with adequate and uniform guidelines for identifying and placing LEP children in a transitional bilingual education program and that the defendants need not monitor and enforce the implementation of the program chosen by the state's

legislature.

We cannot accept such an interpretation of the EEOA. Section 1703(f) could hardly be called detailed, but it does make clear, through the definition of the term “educational agency,” that the obligation to take “appropriate action” falls on both state and local educational agencies. We concur in the conclusion of the Ninth Circuit in Idaho Migrant Council v. Bd. of Educ., 647 F.2d 69 (9th Cir. 1981), that § 1703(f) requires that state, as well as local, educational agencies ensure that the needs of LEP children are met. The plaintiffs in essence alleged that the defendants have only gone through the motions of solving the problem of language barriers. Although the meaning of “appropriate action” may not be immediately apparent without reference to the facts of the individual case, it must mean something more than “no action.” State agencies cannot, in the guise of deferring to local conditions, completely delegate in practice their obligations under the EEOA; otherwise, the term “educational agency” no longer includes those at the state level. Exactly what state educational agencies must do beyond establishing the minimums for the implementation of language remediation programs and enforcing those minimums is not at issue in the instant appeal, because the plaintiffs have done no more than allege that the defendants failed even to establish the minimums needed for identifying and placing LEP children. These allegations, nonetheless, are enough to withstand a 12(b)(6) challenge. Whether the plaintiffs can prove their case is a matter that must be determined on remand, not on appeal. We can only decide at this early stage of the litigation that the plaintiffs have stated a claim and, therefore, that the dismissal of the complaint was improper.

The defendants concede that they are required under Illinois law to issue regulations for the identification and placement of LEP children, but argue that they are not empowered to supervise and enforce the local school districts' compliance with those regulations. It is clear, however, that the Board and the Superintendent are vested with the authority under state law to supervise the local districts and to enforce state regulations. At oral argument, counsel for the defendants conceded that the Board and the Superintendent had the power to mandate that local districts provide the proper education for LEP children. We, of course, would be confronted with a very different set of questions if a state did not grant its educational agencies the power to implement state programs even though § 1703(f) required that those agencies take appropriate action to provide equal educational opportunities to their students. That is not, however, the case before us.

When this suit was filed, Ill. Rev. Stat., ch. 122, ¶ 14C-3 provided that “[a] school district may establish a program in transitional bilingual education with respect to any classification with less than 20 children therein” (emphasis added). The Illinois legislature added the following language on August 1, 1985 (to become effective on that date): “but should a school district decide not to establish such a program, the school district shall provide a locally determined transitional program of instruction which, based upon an individual student language assessment, provides content area instruction in a language other than English to the extent necessary to ensure that each student can benefit from educational instruction and achieve an early and

effective transition into the regular school curriculum.” (emphasis added). We reject the defendants' contention that this new legislation moots the plaintiffs' claim relating to those attendance centers with less than 20 LEP children. If anything, this new provision places an additional obligation (along with the general ones imposed by Ill. Rev. Stat., ch. 122, ¶ 2) on the defendants to ensure that students in these attendance centers are receiving a proper education. Indeed, the defendants in their brief to this court have informed us that they will be developing regulations for the implementation of these local programs mandated by the 1985 amendment. We cannot, of course, determine on the record before us the effect this new legislation will have on the actions of the defendants, but we can say that the plaintiffs' claims are not now moot.

NOTES AND QUESTIONS

1. What is the state’s, as opposed to a local district’s, responsibility under the EEOA? 2. This court does not take up the first prong of Castenda, as the plaintiffs concede it was

met, but the court implies that the state need not actually adopt any pedagogy, leaving pedagogy to local districts. If, however, the state adopted a pedagogy, would it be subject to the same inquiry as a district?

3. Procedural posture of this case is very important to the outcome, as well as the fact that it was against the state. This case involved the litigation of the principles of implementation rather than an evaluation of the state’s actual implementation. Would the result in this case have been different if the state had established some standard, regardless of how minimal, for local districts to comply with?

4. This court does not take up the issue of results. Does that mean that an ELL plan could be struck down on either of the first two prongs, even if it is the case that the program is producing results or is still in the period of time before results are to be demanded? Or is it just that the state has done so little at this point in Illinois that it is precluded from claiming it has done anything that will produce results?

VALERIA v. DAVIS

307 F.3d 1036 (9th Cir. 2002)

TASHIMA, CIRCUIT JUDGE.

I. BACKGROUND

On June 2, 1998, California voters approved Proposition 227 by a margin of 61 to 39 percent. Declaring that “[t]he government and the public schools of California have a moral obligation and a constitutional duty to provide all of California's children ... with the skills necessary to become productive members of our society, and of these skills, literacy in the English language is among the most important,” Proposition 227 dismantled California's public school bilingual education programs, which taught limited English proficient (“LEP”) students in their native language.

Proposition 227 replaces bilingual education with a system of “structured English immersion,” in which children are “taught English by being taught in English.” The initiative provides that LEP students of similar English proficiency be taught together and that “[c]hildren who are English learners shall be educated through sheltered English immersion during a temporary transition period not normally intended to exceed one year.” Once LEP students become proficient in English, they are transferred into mainstream English language classrooms.

Proposition 227 allows LEP students to receive waivers from English immersion in three circumstances: (i) when the student already knows English; (ii) when the student is 10 years old or older and the school agrees that an alternative curriculum would better serve the student's English education; or (iii) when the student has tried the immersion program for at least 30 days, the school agrees “that the child has special physical, emotional, psychological, or educational needs,” and an alternative curriculum would better serve the student's educational development. Students who qualify for waiver “may be transferred to classes where they are taught English and other subjects through bilingual education techniques or other generally recognized educational methodologies permitted by law.” Under no circumstances, however, can a student receive a waiver without parental consent.

Finally, Proposition 227 restricts the circumstances in which it can be amended: “The provisions of this act may be amended by a statute that becomes effective upon approval by the electorate or by a statute to further the act's purpose passed by a two-thirds vote of each house of the Legislature and signed by the Governor.”

The day after Proposition 227 passed, plaintiffs filed this action. Plaintiffs moved for a preliminary injunction to enjoin implementation of Proposition 227 pendente lite, which the district court denied. After trial, the district court entered judgment in favor of defendants. Plaintiffs timely appeal.

III. DISCUSSION

We must decide whether the elimination of bilingual education in California's public schools by Proposition 227, which also mandates that any future change in how English is taught to LEP students requires state-wide action, violates the Equal Protection Clause.

Conventional equal protection analysis focuses on whether the government has classified individuals on the basis of impermissible criteria. While most laws classify individuals in one way or another, legislative classifications typically survive judicial scrutiny so long as they are rationally related to a legitimate governmental interest. However, governmental actions that classify persons by race, Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 230 (1995), or that are facially neutral but motivated by discriminatory racial purpose, Washington v. Davis, 426 U.S. 229 (1976), are subject to strict judicial scrutiny.

Under this conventional approach, Proposition 227 easily avoids the application of strict scrutiny. Nowhere does the text of Proposition 227 explicitly mention racial minorities generally, or any racial minority in particular. Rather, the initiative merely provides that “children in California public schools” shall be taught in English. Furthermore, the record is devoid of any evidence that Proposition 227 was crafted from racial animus.

Plaintiffs, however, assert a constitutional violation grounded in “political structure” equal protection analysis. Relying on the Supreme Court's pronouncements in Hunter v. Erickson, 393 U.S. 385 (1969), and Washington v. Seattle Sch. Dist., 458 U.S. 457 (1982), plaintiffs contend that Proposition 227 unconstitutionally restructures the political process by placing decision-making over bilingual education, and only bilingual education, at the state-wide level.

In Hunter, the Court reviewed an Akron, Ohio, city charter amendment requiring that housing ordinances, which regulated real estate transactions “on the basis of race, color, religion, national origin, or ancestry,” be approved by a majority of city voters (rather than simply by the city council). This law disadvantaged those who would benefit from laws barring racial discrimination in the real estate market as opposed to those who would benefit from other regulations of the real estate market. In light of this differential treatment, the Court concluded that the Akron charter amendment embodied “an explicitly racial classification treating racial housing matters differently from other racial and housing matters.”1 Absent a compelling state

1 As commentators have observed, however, Hunter did not involve an express racial classification in the traditional sense. Rather, a racial classification was discerned from the charter amendment's surrounding context. Cass R. Sunstein, Public Values, Private Interests, and the Equal Protection Clause, 1982 SUP. CT. REV. 127, 149 (arguing that “[t]he classification in Hunter was not quite a racial classification on its face; but, by its very nature, it gave rise to suspicion that an impermissible motive was at work”). This ambiguity in what constitutes a racial classification, however, is irrelevant to the case at hand, because there is neither a

interest, the Court held that the state “may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person's vote or give any group a smaller representation than another of comparable size.”

The Court applied Hunter's “political structure” equal protection analysis a decade later in Seattle. There, the Court examined the constitutionality of Washington's Initiative 350, a statewide initiative that barred school boards from assigning students beyond their neighborhood schools. While facially neutral, Initiative 350 contained several broad exceptions that essentially operated to preclude only desegregative busing. In concluding that Initiative 350 “was effectively drawn for racial purposes,” the Court considered the text of the initiative, the representations of its proponents, the initiative's practical effect, and its popular perception. The Court held that Initiative 350 differentiated “between the treatment of problems involving racial matters and that afforded other problems in the same area,” and that this differentiation burdened minorities “by lodging decisionmaking authority over the question at a new and remote level of government.” The Court concluded that “Initiative 350 must fall because it does not attemp[t] to allocate governmental power on the basis of any general principle. Instead, it uses the racial nature of an issue to define the governmental decisionmaking structure, and thus imposes substantial and unique burdens on racial minorities.” Under this “political structure” analysis, reallocation of political decision making violates equal protection only when there is evidence of purposeful racial discrimination. Be it an overt racial classification or a context of discernible racial animus, constitutional “political structure” analysis resembles “conventional” equal protection analysis in that demonstrable evidence of purposeful racial discrimination is required. Seattle, 458 U.S. at 484-85

The factual postures of Hunter and Seattle are illustrative of this purposeful discrimination requirement, for they both dealt with political obstructions placed in the way of minorities seeking to remedy identified patterns of racial discrimination. In Hunter the challenged charter amendment operated to prevent the city council from enacting ordinances to address racial discrimination in housing; in Seattle the challenged initiative placed special burdens on the ability of minority groups to combat racially segregated school districts. See Coalition for Econ. Equity v. Wilson, 122 F.3d 692, 704 (9th Cir. 1997) (“The ‘political structure’ equal protection cases, namely Hunter and Seattle, addressed the constitutionality of political obstructions that majorities had placed in the way of minorities to achieving protection against unequal treatment.”).

Proposition 227, however, does not obstruct minorities from seeking protection against unequal treatment. Unlike ordinances enacted to address pervasive racial discrimination in housing, or efforts taken by local school boards to desegregate racially stratified school districts, California's system of bilingual education did not operate to remedy identified patterns of racial

traditional racial classification in the text of Proposition 227 nor evidence that the “racial nature” of bilingual education played a role in the initiative's popular approval.

discrimination. Bilingual education did not target racial animus, but rather endeavored to improve (what proponents viewed to be) a pedagogically flawed educational system. As the district court found: “This court cannot discern from the face of Proposition 227 any hidden agenda of racial or national origin discrimination against any group.... [T]he debate is a neutral one, about which system will provide LEP children with the best education to enable them to function as American citizens and enjoy the opportunities and privileges of life in the United States.” Valeria G. v. Wilson, 12 F. Supp. 2d 1007, 1014-15 (N.D. Cal.1998).

Given that the purpose and function of California's bilingual education program was and is to improve education, and not to remedy racial discrimination, and that the record contains no evidence that Proposition 227 was motivated by racial animus, we cannot conclude that this initiative reallocated “the authority to address a racial problem-and only a racial problem-from the existing decisionmaking body, in such a way as to burden minority interests.” Seattle, 458 U.S. at 474. While Proposition 227 surely reallocated political authority, placing control over bilingual education at the state (rather than local) level, the reallocation of political authority at issue in Proposition 227 operated solely to address an educational issue, not a racial one.

There is, of course, an undeniable racial dimension to Proposition 227. In the 1996-97 academic year, Hispanic/Latino students accounted for more than 82 percent of the LEP student population, despite making up less than 41 percent of the overall student body in California's public schools. Furthermore, during Proposition 227's popular campaign, the link between bilingual education and the Hispanic/Latino community was discernible. While much of the campaign was framed in expressly non-racial terms, Hispanics and Latinos were singled out by Proposition 227's ballot materials, press releases, and published opinion pieces.2

The mere fact, however, that California's LEP student population is predominantly Hispanic/Latino, and that proponents of Proposition 227 specifically identified this racial group during the initiative's campaign, does not itself suffice to create a colorable equal protection political structure claim. The Supreme Court has distinguished “between state action that discriminates on the basis of race and state action that addresses, in neutral fashion, race-related matters.” Crawford v. Bd. of Educ., 458 U.S. 527, 538 (1982). The former violates equal protection, but the latter does not. Furthermore, the Hunter doctrine “does not mean ... that every attempt to address a racial issue gives rise to an impermissible racial classification.” Seattle, 458 U.S. at 485. Reallocation of political power offends equal protection only when the racial implications of the underlying issue determine the newlyformed decision-making process. Id. at

2 The initiative's official ballot pamphlet argument decried the “monolingual, SPANISH-ONLY education” system, isolated “Latino immigrant children” as the “principal victims of bilingual education,” and suggested that “[m]ost Latino parents” support the initiative because “[t]hey know that Spanish-only bilingual education is preventing their children from learning English.” Similarly, press releases and published opinion pieces released by Proposition 227 supporters highlighted the prevalence of Spanish speaking Latino schoolchildren. No other racial groups were specifically identified in the Proposition 227 campaign materials.

470. (“[T]he political majority may generally restructure the political process to place obstacles in the path of everyone seeking to secure the benefits of governmental action. But a different analysis is required when the State allocates governmental power nonneutrally, by explicitly using the racial nature of a decision to determine the decisionmaking process.”). While bilingual education has obvious racial implications, the record establishes neither that racial discrimination was the impetus of bilingual education, nor that racial animus motivated the passage of Proposition 227. The racial makeup of California's LEP student population did not shape Proposition 227's reallocation of political authority over bilingual education.

Plaintiffs cite no substantial evidence to establish that Proposition 227 was enacted for a racially discriminatory purpose. Instead, they argue that political restructuring violates equal protection anytime it affects a program that inures primarily to the benefit of racial minorities. Plaintiffs ask this court to invalidate Proposition 227's political restructuring absent a showing of racial animus because bilingual education in California has a uniquely “racial focus.” No case is cited in support of this novel interpretation of the Supreme Court's “political structure” jurisprudence, and we reject plaintiffs' invitation to so extend Hunter and Seattle. Hunter and Seattle stand for the simple proposition that strict scrutiny applies if an initiative creates an outright racial classification, or if a facially neutral initiative was driven by the racial nature of its subject matter. See, e.g., Seattle, 458 U.S. at 471 (“despite its facial neutrality there is little doubt that the initiative was effectively drawn for racial purposes”). Given Proposition 227's facial neutrality, and the lack of evidence that it was motivated by racial considerations, we hold that Proposition 227's reallocation of political authority over bilingual education does not offend the Equal Protection Clause.

NOTES AND QUESTIONS

1. What is Plaintiff’s theory of why Proposition 227 is unconstitutional? 2. Proposition 227 allows for ELL students to receive an alternative curriculum in three

circumstances, but what would that alternative curriculum be, given that bilingual is not available and most all students are in structural immersion?

3. The court concludes there is no evidence of discrimination in this case. What is the court’s rationale for treating this case differently than Hunter and Seattle? What is the best argument for how this case is analogous to Hunter and Seattle?

4. Does the fact that the efficacy of bilingual versus non-bilingual programs was under dispute have any bearing on the alleged discriminatory motive? The court suggests that since there is no constitutional right to bilingual education (lower court makes a lot of this), the plaintiffs are asking for special treatment. But if bilingual education was necessary for an equal educational opportunity for some students, would adopting a policy prohibiting access to it amount to discrimination rather than a denial of special treatment? Proposition 227 does include exceptions that would permit bilingual instruction under some circumstances. Are those exceptions sufficient to moot the problem of equal educational opportunity for those students for whom non-bilingual education will be ineffective?

5. Is there a difference between barring desegregation and barring bilingual education?

6. The Court indicates the state has a legitimate interest in promoting English instruction, but what is it legitimate motive for banning bilingual instruction? Are those reasons unrelated to race and ethnicity? Is there any basis for entirely prohibiting a form of instruction rather than leaving it open to local educators like most other educational choices?

U.S. Department of Education, Policy Update on Schools' Obligations Toward National Origin Minority Students With Limited-English Proficiency (Sept. 27, 1991)

This policy update is primarily designed for use in conducting Lau compliance reviews -- that is, compliance reviews designed to determine whether schools are complying with their obligation under the regulation implementing Title VI of the Civil Rights Act of 1964 to provide any alternative language programs necessary to ensure that national origin minority students with limited-English proficiency (LEP students) have meaningful access to the schools' programs. The policy update adheres to OCR's past determination that Title VI does not mandate any particular program of instruction for LEP students. In determining whether the recipient is operating a program for LEP students that meets Title VI requirements, OCR will consider whether: (1) the program the recipient chooses is recognized as sound by some experts in the field or is considered a legitimate experimental strategy; (2) the programs and practices used by the school system are reasonably calculated to implement effectively the educational theory adopted by the school; and (3) the program succeeds, after a legitimate trial, in producing results indicating that students' language barriers are actually being overcome. The policy update also discusses some difficult issues that frequently arise in Lau investigations.

Part I of the policy update provides additional guidance for applying the May 1970 and December 1985 memoranda that describe OCR's Title VI Lau policy. In Part I, more specific standards are enunciated for staffing requirements, exit criteria and program evaluation. Policy issues related to special education programs, gifted/talented programs, and other special programs are also discussed. Part II of the policy update describes OCR's policy with regard to segregation of LEP students.

With the possible exception of Castaneda, which provides a common sense analytical framework for analyzing a district's program for LEP students that has been adopted by OCR, and Keyes v. School Dist. No. 1, which applied the Castaneda principles to the Denver Public Schools, most court decisions in this area stop short of providing OCR and recipient institutions with specific guidance. The policy standards enunciated in this document attempt to combine the most definitive court guidance with OCR's practical legal and policy experience in the field. In that regard, the issues discussed herein, and the policy decisions reached, reflect a careful and thorough examination of Lau case investigations carried out by OCR's regional offices over the past few years, comments from the regional offices on a draft version of the policy, and lengthy discussions on the issues with some of OCR's most experienced investigators. Specific recommendations from participants at the Investigative Strategies Workshop have also been considered and incorporated where appropriate. I. Additional guidance for applying the May 1970 and December 1985 memoranda.

The December 1985 memorandum listed two areas to be examined in determining whether a recipient was in compliance with Title VI: (1) the need for an alternative language program for LEP students; and (2) the adequacy of the program chosen by the recipient.A. Adequacy of Program

This section of the memorandum provides additional guidance for applying the three-pronged Castaneda approach for determining the adequacy of a recipient's [LEP program]. 1. Soundness of educational approach

Castaneda requires districts to use educational theories that are recognized as sound by some experts in the field, or at least theories that are recognized as legitimate educational strategies. Some approaches that fall under this category include transitional bilingual education, bilingual/bicultural education, structured immersion, developmental bilingual education, and English as a Second Language (ESL). A district that is using any of these approaches has complied with the first requirement of Castaneda. If a district is using a different approach, it is in compliance with Castaneda if it can show that the approach is considered sound by some experts in the field or that it is considered a legitimate experimental strategy. 2. Proper Implementation Castaneda requires that "the programs and practices actually used by a school system [be] reasonably calculated to implement effectively the educational theory adopted by the school." 648 F. 2d at 1010. Some problematic implementation issues have included staffing requirements for programs, exit criteria, and access to programs such as gifted/talented programs. Staffing requirements

Districts have an obligation to provide the staff necessary to implement their chosen program properly within a reasonable period of time. Many states and school districts have established formal qualifications for teachers working in a program for limited-English-proficient students. When formal qualifications have been established, and when a district generally requires its teachers in other subjects to meet formal requirements, a recipient must either hire formally qualified teachers for LEP students or require that teachers already on staff work toward attaining those formal qualifications. A recipient may not in effect relegate LEP students to second-class status by indefinitely allowing teachers without formal qualifications to teach them while requiring teachers of non-LEP students to meet formal qualifications.

Whether the district's teachers have met any applicable qualifications established by the state or district does not conclusively show that they are qualified to teach in an alternative language program. Some states have no requirements beyond requiring that a teacher generally be certified, and some states have established requirements that are not rigorous enough to ensure that their teachers have the skills necessary to carry out the district's chosen educational program. Discussed below are some minimum qualifications for teachers in alternative language programs.

If a recipient selects a bilingual program for its LEP students, at a minimum, teachers of bilingual classes should be able to speak, read, and write both languages, and should have received adequate instruction in the methods of bilingual education. In addition, the recipient should be able to show that it has determined that its bilingual teachers have these skills. In addition, bilingual teachers should be fully qualified to teach their subject.

If a recipient uses a method other than bilingual education, the recipient should have ascertained that teachers who use those methods have been adequately trained in them. This

training can take the form of in-service training, formal college coursework, or a combination of the two. In addition, as with bilingual teachers, a recipient should be able to show that it has determined that its teachers have mastered the skills necessary to teach effectively in a program for LEP students. In making this determination, the recipient should use validated evaluative instruments -- that is, tests that have been shown to accurately measure the skills in question. The recipient should also have the teacher's classroom performance evaluated by someone familiar with the method being used.

ESL teachers need not be bilingual if the evidence shows that they can teach effectively without bilingual skills.

To the extent that the recipient's chosen educational theory requires native language support, and if the program relies on bilingual aides to provide such support, the recipient should be able to demonstrate that it has determined that its aides have the appropriate level of skill in speaking, reading, and writing both languages. In addition, the bilingual aides should be working under the direct supervision of certificated classroom teachers. Students should not be getting instruction from aides rather than teachers.

Recipients frequently assert that their teachers are unqualified because qualified teachers are not available. If a recipient has shown that it has unsuccessfully tried to hire qualified teachers, it must provide adequate training to teachers already on staff to comply with the Title VI regulation. Such training must take place as soon as possible. For example, recipients sometimes require teachers to work toward obtaining a credential as a condition of employment in a program for limited-English-proficient students. To ensure that LEP students have access to the recipient's programs while teachers are completing their formal training, the recipient must ensure that those teachers receive sufficient interim training to enable them to function adequately in the classroom, as well as any assistance from bilingual aides that may be necessary to carry out the recipient's interim program.

Exit Criteria for Language Minority LEP Students Once students have been placed in an alternative language program, they must be

provided with services until they are proficient enough in English to participate meaningfully in the regular educational program. Some factors to examine in determining whether formerly LEP students are able to participate meaningfully in the regular educational program include: (1) whether they are able to keep up with their non-LEP peers in the regular educational program; (2) whether they are able to participate successfully in essentially all aspects of the school's curriculum without the use of simplified English materials; and (3) whether their retention in-grade and dropout rates are similar to those of their non-LEP peers.

Generally, a recipient will have wide latitude in determining criteria for exiting students from an alternative language program, but there are a few basic standards that should be met. First, exit criteria should be based on objective standards, such as standardized test scores, and the district should be able to explain why it has decided that students meeting those standards will be able to participate meaningfully in the regular classroom. Second, students should not be exited from the LEP program unless they can read, write, and comprehend English well enough

to participate meaningfully in the recipient's program. Exit criteria that simply test a student's oral language skills are inadequate. Finally, alternative programs cannot be "dead end" tracks to segregate national origin minority students.

Many districts design their LEP programs to temporarily emphasize English over other subjects. While schools with such programs may discontinue special instruction in English once LEP students become English-proficient, schools retain an obligation to provide assistance necessary to remedy academic deficits that may have occurred in other subjects while the student was focusing on learning English.

Special Education Programs OCR's overall policy on this issue, as initially announced in the May 1970 memorandum,

is that school systems may not assign students to special education programs on the basis of criteria that essentially measure and evaluate English language skills.

Pending completion of [a] policy update, Lau compliance reviews should continue to include an inquiry into the placement of limited-English- proficient students into special education programs where there are indications that LEP students may be inappropriately placed in such programs, or where special education programs provided for LEP students do not address their inability to speak or understand English. In addition, compliance reviews should find out whether recipients have policies of "no double services": that is, refusing to provide both alternative language services and Special education to students who need them.

Gifted/Talented Programs and Other Specialized Programs The exclusion of LEP students from specialized programs such as gifted/talented

programs may have the effect of excluding students from a recipient's programs on the basis of national origin, unless the exclusion is educationally justified by the needs of the particular student or by the nature of the specialized program. LEP students cannot be categorically excluded from gifted/talented or other specialized programs. If a recipient has a process for locating and identifying gifted/talented students, it must also locate and identify gifted/talented LEP students who could benefit from the program.

In determining whether a recipient has improperly excluded LEP students from its gifted/talented or other specialized programs, OCR will carefully examine the recipient's explanation for the lack of participation by LEP students. OCR will also consider whether the recipient has conveyed these reasons to students and parents.

Educational justifications for excluding a particular LEP student from a specialized program should be comparable to those used in excluding a non-LEP peer and include: (1) that time for the program would unduly hinder his/her participation in an alternative language program; and (2) that the specialized program itself requires proficiency in English language skills for meaningful participation.

Unless the particular gifted/talented program or program component requires proficiency in English language skills for meaningful participation, the recipient must ensure that evaluation and testing procedures do not screen out LEP students because of their limited-English

proficiency. To the extent feasible, tests used to place students in specialized programs should not be of a type that the student's limited proficiency in English will prevent him/her from qualifying for a program for which they would otherwise be qualified.

3. Program EvaluationIn return for allowing schools flexibility in choosing and implementing an alternative

language program, Castaneda requires recipients to modify their programs if they prove to be unsuccessful after a legitimate trial. As a practical matter, recipients cannot comply with this requirement without periodically evaluating their programs. If a recipient does not periodically evaluate or modify its programs, as appropriate, it is in violation of the Title VI regulation unless its program is successful.

Generally, "success" is measured in terms of whether the program is achieving the particular goals the recipient has established for the program. If the recipient has established no particular goals, the program is successful if its participants are over-coming their language barriers sufficiently well and sufficiently promptly to participate meaningfully in the recipient's programs.

II. Segregation of LEP studentsProviding special services to LEP students will usually have the effect of segregating

students by national origin during at least part of the school day. Castaneda states that this segregation is permissible because "the benefits which would accrue to [LEP] students by remedying the language barriers which impede their ability to realize their academic potential in an English language educational institution may outweigh the adverse effects of such segregation."

OCR's inquiry in this area should focus on whether the district has carried out its chosen program in the least segregative manner consistent with achieving its stated goals. In other words, OCR will not examine whether ESL, transitional bilingual education, developmental bilingual education, bilingual/bicultural education, structured immersion, or any other theory adopted by the district is the least segregative program for providing alternative language services to LEP students. Instead, OCR will examine whether the degree of segregation in the program is necessary to achieve the program's educational goals.

The following practices could violate the anti-segregation provisions of the Title VI regulation: (1) segregating LEP students for both academic and nonacademic subjects, such as recess, physical education, art and music; [8] and (2) maintaining students in an alternative language program longer than necessary to achieve the district's goals for the program.

NOTES AND QUESTIONS

1. Does this guidance provide sufficient clarity for school districts? Are there any areas in which it is either too rigid or too flexible?

2. Acting in accordance with its policy guidance, OCR has forced major school districts to

significantly alter their ELL programs. For instance, in 2010, OCR investigated Los Angeles Unified School District’s (LAUSD), focusing on whether ELL students were receiving adequate instruction. LAUSD is the nation’s second-largest school system and has the most ELL students in the country, but only three percent of its ELL students were proficient in math and English at the high school level. Howard Blume, U.S. Department of Education’s Office for Civil Rights Targets L.A. Unified for Investigation, L.A. TIMES (March 9, 2010), www.latimesblogs.latimes.com/lanow/2010/03/us-education-department-investigates-la-unified-.html. As a result of the OCR investigation, LAUSD agreed to comprehensive revisions in the way it teaches its ELL students. Under the agreement, the district is required to “focus on the academic progress of students judged to have adequately learned English…, [and to] concentrate efforts on students who have reached high school without mastering the English skills necessary to enroll in a college-preparatory curriculum and who may be at risk of dropping out.” Howard Blume, LAUSD Agrees to Revise How English Learners, Blacks are Taught, L.A. TIMES (Oct. 11, 2011), www.articles.latimes.com/2011/oct/11/local/la-me-1012-lausd-feds-20111011/2.

3. Congress, in similar fashion, has more recently sought to influence ELL policy indirectly through its overall agenda to improve student achievement through standardized testing. The No Child Left Behind Act of 2002 sought to ensure that school children have a “fair, equal, and significant opportunity to obtain a high-quality education” by requiring that all students reach proficiency in state educational standards as measured by standardized achievement tests. 20 U.S.C. § 6301 (2006). In terms of ELL students, the Act took two significant steps. First, it required states to adopt or develop English language proficiency tests to determine which students should be classified as English language learners and to provide a reliable and consistent basis for tracking those students’ achievement. 20 U.S.C. § 6311(7) (2006). Second, the Act’s primary stated goal was to close the achievement gap between various student subgroups and it included ELL students as one of the subgroups whose achievement with other students should be closed. 20 U.S.C. § 6301(3).

Chapter 5

Gender

MERCER V. DUKE UNIVERSITY,190 F.3d 643 (4th Cir. 1999)

LUTTIG, Circuit Judge:Appellant Heather Sue Mercer challenges the federal district court's holding that Title IX

provides a blanket exemption for contact sports and the court's consequent dismissal of her claim that Duke University discriminated against her during her participation in Duke's intercollegiate football program. For the reasons that follow, we hold that where a university has allowed a member of the opposite sex to try out for a single-sex team in a contact sport, the university is, contrary to the holding of the district court, subject to Title IX and therefore prohibited from discriminating against that individual on the basis of his or her sex.I.[Heather Sue Mercer was an all-state high school kicker and tried out for the Duke football team in 1994. She did not make the team, but served as a manager, attending practices and participating in drills. In 1995, Mercer was selected to participate in an annual scrimmage, where she kicked the winning goal and was featured on TV. Mercer was told by the kicking coach that she made the team. In 1995, Mercer was listed as a team-member on the official roster and regularly attended practices, although she did not play in any games.]

During this latter period, Mercer alleges that she was the subject of discriminatory treatment by Duke. Specifically, she claims that Goldsmith did not permit her to attend summer camp, refused to allow her to dress for games or sit on the sidelines during games, and gave her fewer opportunities to participate in practices than other walk-on kickers. In addition, Mercer claims that Goldsmith made a number of offensive comments to her, including asking her why she was interested in football, wondering why she did not prefer to participate in beauty pageants rather than football, and suggesting that she sit in the stands with her boyfriend rather than on the sidelines.

At the beginning of the 1996 season, Goldsmith informed Mercer that he was dropping her from the team. Mercer alleges that Goldsmith's decision to exclude her from the team was on the basis of her sex because Goldsmith allowed other, less qualified walk-on kickers to remain on the team. Mercer attempted to participate in conditioning drills the following spring, but Goldsmith asked her to leave because the drills were only for members of the team. Goldsmith told Mercer, however, that she could try out for the team again in the fall.

[R]ather than try out for the team again, Mercer filed suit against Duke and Goldsmith, alleging sex discrimination in violation of Title IX of the Education Amendments of 1972. Duke and Goldsmith filed a motion to dismiss for failure to state a claim under Title IX. On November 9, 1998, the district court granted the motion to dismiss .II.

Title IX prohibits discrimination on the basis of sex by educational institutions receiving federal funding. See 20 U.S.C. § 1681(a).[the Department of Health, Education, and Welfare (HEW)] duly promulgated 34 C.F.R. § 106.41, which reads in relevant part as follows:

Athletics.(a) General. No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis.(b) Separate teams. Notwithstanding the requirements of paragraph (a) of this section, a recipient may operate or sponsor separate teams for members of each sex where selection

for such teams is based upon competitive skill or the activity involved is a contact sport. However, where a recipient operates or sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try out for the team offered unless the sport involved is a contact sport. For the purposes of this part, contact sports include boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily contact.

34 C.F.R. § 106.41(a)-(b). The district court held, and appellees contend on appeal, that, under this regulation, "contact sports, such as football, are specifically excluded from Title IX coverage." We disagree.

We construe the second sentence of subsection (b) as providing that in non-contact sports, but not in contact sports, covered institutions must allow members of an excluded sex to try out for single-sex teams. Once an institution has allowed a member of one sex to try out for a team operated by the institution for the other sex in a contact sport, subsection (b) is simply no longer applicable, and the institution is subject to the general anti-discrimination provision of subsection (a). To the extent that the Third Circuit intended to hold otherwise in Williams v. School Dist. of Bethlehem, Pa., 998 F.2d 168, 174 (3d Cir.1993), with its lone unexplained statement that, "[i]f it is determined that [a particular sport] is a contact sport, no other inquiry is necessary because that will be dispositive of the title IX claim," we reject such a conclusion as inconsistent with the language of the regulation.

Accordingly, because appellant has alleged that Duke allowed her to try out for its football team (and actually made her a member of the team), then discriminated against her and ultimately excluded her from participation in the sport on the basis of her sex, we conclude that she has stated a claim under the applicable regulation, and therefore under Title IX. We take to heart appellees' cautionary observation that, in so holding, we thereby become "the first Court in United States history to recognize such a cause of action." Where, as here, however, the university invites women into what appellees characterize as the "traditionally all-male bastion of collegiate football," id. at 20 n. 10, we are convinced that this reading of the regulation is the only one permissible under law.

The district court's order granting appellees' motion to dismiss for failure to state a claim is hereby reversed, and the case remanded for further proceedings.REVERSED AND REMANDED

Notes and Questions1. How is Mercer different than Force? Is the application of Title IX in the higher education

context the same as in the high school context?2. What is a “contact sport”? The Title IX regulations define “contact sports [to] include

boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily contact.” 34 C.F.R. § 106.41(a)-(b). What sports should be included or excluded? What sports may fall into the category of a sport where “the purpose or major activity of which involves bodily contact”? How would the Mercer and Force courts examine: baseball? Leffel v. Wisconsin Interschol. Athletic Ass'n, 444 F. Supp. 1117 (E.D. Wis. 1978); Carnes v. Tennessee Secondary Sch. Athletic Ass'n, 415 F. Supp. 569 (E.D. Tenn. 1976). Ice hockey? Cook v. Colgate, 802 F. Supp. 737 (N.D.N.Y. 1992). Field Hockey? B.C. v. Board of Educ. Cumberland Reg'l Sch. Dist., 531 A.2d

1059 (N.J. Super. Ct. App. Div. 1987); Kleczek v. Rhode Island Interschol. League, Inc., 768 F. Supp. 951 (D.R.I. 1991); see also Williams v. School Dist. of Bethlehem, 998 F.2d 168, 169-70 (3d Cir. 1993) (holding that the determination of whether field hockey is a contact sport is a triable issue of fact). Some have argued that the Title IX exemption of basketball and football is because the NCAA vigorously lobbied to protect these revenue-producing sports. Crista D. Leahy, The Title Bout: A Critical Review of the Regulation and Enforcement of Title IX in Intercollegiate Athletics, 24 J.C. & U.L. 489, 493-96 (1998). As one commentator argues:

These [Title IX athletics regulations] define the term "contact sports" so broadly and arbitrarily that the exception swallows the rule and undermines Title IX's raison d'etre in the athletic arena. Indeed, their practical impact is that Title IX often functions as an additional impediment to female athletes. As the Third Circuit so aptly described it, "the contact sports exception is . . . the broadest exception recognized to the overarching goal of equal athletic opportunity." Williams v. School Dist. of Bethlehem, 998 F.2d 168, 172 (3d Cir. 1993).

The rationale for female exclusion from contact sports is two-fold. First, powerful lobbies have sought to protect the status-quo ante--the all-male bastions of college basketball and football. Second, powerful and longstanding paternalistic stereotypes focus on the relative fragility of the female body. Such stereotypes posit that no females should play contact sports with males because females are inherently weaker, slower, and less coordinated than males, and thus are prone to debilitating injuries when they play rough sports with males. Such physical stereotypes mix with cultural stereotypes. Our "instincts" may tell us, for example, that there is something unseemly, something dangerous and wrong, about scantily clad females taking scantily clad males to the mat to struggle and strain and sweat in a tumble of flesh, snot, saliva and even blood. Such a scenario is not properly part of a wholesome and egalitarian American education. The historic exclusion of females from athletics generally, and particularly from contact sports, combined with cultural taboos for women against developing "male" qualities of physical stamina and strength, muscle mass, and overt aggressive competitiveness, have surely been central components of female dependence and vulnerability to violence. Moreover, benefits touted to justify large expenditures on male athletic opportunities--the emphasis on character building, leadership development, learning team work, learning to excel in highly competitive environments--would equally advantage female citizens in this competitive market economy. Unfettered participation in athletics for women, not as the sexy, silly decorative cheerleaders for male athletes, but as full status athletes entitled to the respect and political and economic opportunities showered upon male athletes would have wide cultural repercussions.

Suzanne Sangree, Title IX and the Contact Sports Exemption: Gender Stereotypes in a Civil Rights Statute, 32 CONN. L. REV. 381, 382-83 (2000) (arguing that the expansive definition of contact sports, and the Title IX exemption, contravenes Title IX’s purpose of gender equality and suggesting that the exemption is a product of discriminatory ideas of women being more fragile and inferior athletes.). Do the regulatory contact sports

exemption contradict the purpose of Title IX’s athletics provisions? Is Title IX and/or its regulations inconsistent with the Constitution?

3. Some state courts have found that their state constitutional gender discrimination provision prohibits discrimination against women in contact sports. See NOW v. Little League Baseball, Inc., 318 A.2d 33 (N.J. Super. 1974); Commonwealth v. Pa. Interschol. Athletic Ass'n, 334 A.2d 839 (Pa. Commw. 1975); Darrin v. Gould, 540 P.2d 882 (Wa. 1975) (football); see also Attorney Gen. v. Mass. Interschol. Athletic Ass'n, 393 N.E.2d 284 (Mass. 1979) (holding that boys cannot be excluded from girls' teams).

4. There is a growing recognition of the barriers to athletic participation faced by transgender and gender non-conforming students. In the context of the historical organization of sports based on sex and gender, a notion embraced by Title IX’s allowance of gender-segregation in sports, transgender students are often forced to choose between participating in sex-segregated teams inconsistent with their gender identity or not participating at all. The exclusion of transgender students from teams in accord with their gender identities is justified by arguments that such inclusion would create an “unfair disadvantage,” focusing on the concerns over transgender women (born male, but identified as female) playing on girls teams. Civil rights advocates counter, arguing that such assertions are premised on transphobic notions that transgender women are not “real” women and that being born a male gives an unfair advantage compared to those born female. These assertions seemingly rely on stereotypes and disregard the wide variation in size, strength, and athleticism present within genders. Studies have largely discredited the notion that transgendered women would have an unfair advantage and that permitting transgendered women to participate in female sports would encourage boys to pretend to be transgendered. See generally DR. PAT GRIFFEN & HELEN J. CARROLL, ON THE TEAM: EQUAL OPPORTUNITY FOR TRANSGENDER STUDENT ATHLETES (2010), available at http://www.nclrights.org/site/DocServer/TransgenderStudentAthleteReport.pdf?docID=7901.

Homelessness (Online Chapter)

A. The Educational Effects and Challenges of Homelessness

The number of homeless children and the problems they confront have steadily increased over the past quarter of a century. Scholars note two critical factors that precipitated this increase: the deinstitutionalization of adults with mental disabilities starting in the 1950s with insufficient supports thereafter, and the decline in the real value of wages starting in the 1980s that has

continued ever since. When these two forces intersect with inadequate or unaffordable housing, homelessness is a natural byproduct.

By the mid-1980s, the number of homeless children who were also experiencing an educational crisis was no longer insignificant. Their numbers only continued to grow in subsequent years. In 1989, a quarter of a million children were experiencing homelessness. John Wong et al., The McKinney-Vento Homeless Assistance Act — Education for Homeless Children and Youths Program: Turning Good Law into Effective Education, 11 GEO. J. ON POVERTY L. & POL’Y 283, 284 n.3 (2004). A decade later that number had grown to almost one million and, by 2008, 1.35 million children were homeless. Id. The problem has become even more acute during the recent economic downturn. Unemployment has risen drastically while home values have fallen, resulting in an increasing spate of home foreclosures, some of which leave families homeless. In 2008 and 2009 alone, a study estimated that 1.9 million children would lose their home due to foreclosure. PHILLIP LOVELL & JULIA ISAACS, FIRST FOCUS, THE IMPACT OF THE MORTGAGE CRISIS ON CHILDREN 1 (2008).

Homelessness among children has any number of direct impacts on other aspects of children’s lives, including obtaining food and basic health care. The seriousness of those challenges may make education appear to be an ancillary concern at times, but given education’s capacity to help children potentially break a cycle of homelessness, it is equally important in the long run. Unfortunately, homelessness has a serious negative impact on students’ education.

At present in the United States, homeless children are not doing well academically. Homeless children are twice as likely to repeat a grade, be suspended from school, and be diagnosed with learning and emotional disabilities. They are also four times more likely to show “delayed development.” . . . [I]n particular, homeless children experience difficulty with language abilities such as vocabulary, word analysis, language mechanics, and language expression.

Clifton S. Tanabe & Ian Hippensteele Mobley, Forgotten Students: The Implications of Federal Homeless Education Policy for Children in Hawaii, 2011 B.Y.U. EDUC. & L.J. 51, 52 (2011). Some studies reveal even higher educational disparities for homeless students.

Homelessness also intersects with various indicators of inequality examined in previous chapters. Obviously, poverty is connected to homelessness, but even putting poverty aside, homelessness disproportionately affects students based on race and geography. Homeless students are predominantly concentrated in urban centers. They are also disproportionately minority. Forty-five percent of homeless students are African American, and 8 percent are Native American. Eric S. Tars, Separate & Unequal in the Same Classroom: Homeless Students in America’s Public Schools, 14 PUB. INT. L. REP. 267, 268 (2009). Thus, not only are these students at serious academic risk based on homelessness, but they likely confront other barriers related to race and the available funding in their schools.

The focus of this chapter, however, is on the law’s attempt to address those barriers to education that are specific to homeless students. Many of those barriers are due to circumstances largely outside of schools’ control. For instance, instability in a student’s housing leads to frequent absences from school; low levels of school enrollment; higher rates of depression, anxiety, and withdraw; poorer nutrition and overall health; higher rates of illness; and an inability to participate in various school activities and programs. Homeless students may often suffer from

various forms of stigmatization among their peers, and society in general, which only leads to feelings of further isolation within school. To make matters worse, separation from and the divorce of their parents often hangs over homeless students’ heads. Homeless students worry not only about their own situation but that of their parents, who more frequently than other parents are experiencing unemployment, domestic violence, illness, and drug or alcohol abuse.

The key policy question in regard to these various barriers is whether the educational or social system is responsible for responding and addressing these problems. What is clear, however, is that homeless students are unable to obtain quality and consistent educational opportunities unless someone responds. And in so far as a school has a state constitutional obligation to deliver quality educational opportunities to all students, the need for an educational response almost arises out of necessity, even if the primary causal factors in the students’ challenges are external to school. A school might respond with sensitivity, accommodation, or affirmative assistance. In regard to issues such as in-school stigmatization, affirmative responses seem most appropriate. If either other students or school staff are making homeless students feel unwelcome in some way, a school would be hard pressed to argue the problem is external to the school and not its responsibility to affirmatively address. Whereas, when a student’s transient residency and housing circumstances are causing absenteeism, the most appropriate response might be for a school to accommodate the student in terms of meeting any number of school requirements (although one could make the case for the school to take affirmative steps to see the student is receiving education). In fact, the refusal of a school to accommodate homeless students, rather than any external social, emotional, health, or familial challenge, easily can be the primary factor in cutting off basic access to education.

Schools’ transportation policies, residency requirements, and enrollment procedures can all operate to effectively exclude homeless students from school. When homelessness forces students to move farther away from their current school or shifts their residency, students often lack the capacity to reach and attend school. They may have previously been able to walk to school, ride a normal bus route, or secure a car ride from friends or family, but they now find themselves living in a location that, due to distance or other reasons, precludes them from exercising their normal private or public options for getting to school. In terms of transportation, it may be the case that the simplest solution would be for students to attend schools in their new location, but attending new schools can create other problems, such as interrupting educational continuity and quality. For instance, because homeless students often live in several different locations during the period of their homelessness, always attending the closest school will cause many students to attend multiple schools with varying curriculum over a short period of time. Each relocation subjects students to a steep learning curve as they adjust to new environments, teachers, peers, and curricula. Picking up where they left off at a previous school is not realistic. Unfortunately, this is a dominant reality for most homeless students. In any given year, almost half of the nation’s homeless students attend more than one school over the course of the academic calendar, and almost a third of homeless students attend three or more schools.

The bureaucracy of enrolling and remaining in school often does little to minimize homeless students’ revolving door experience between schools or to speed enrollment in a new school when necessary. First, residency requirements for school enrollment will often exclude homeless students, unless schools apply an exception. Students who lose their homes and are forced to move farther away may no longer be actual residents of their original school districts. And due to

durational or proof of residency requirements, they may not have met the criteria for immediately establishing residency in a new school attendance zone. As Clifton Tanabe and Ian Mobley write:

Homeless children face other obstacles to regular school attendance due to legal or bureaucratic requirements attached to enrollment. For example, some school districts use legal residency requirements to keep “undesirable” homeless children out of a school by labeling homeless families as nonresidents. Often when homeless children are finally allowed to attend school, local ordinances that limit how long families may stay in emergency shelters force parents to remove their children from school because the law requires them to find different housing arrangements.

Legal guardianship requirements can be another barrier to school enrollment. Homeless parents often have their children stay with family members or friends who are able to provide more adequate housing. A study conducted by the National Center on Family Homelessness found that within one year, 22% of homeless children are separated from their families. Because these arrangements are expected to be temporary, the children’s parents never transfer guardianship rights to these relatives or friends. As a result, these children are often unable to register for schools that require children to be enrolled by their parents or legal guardians. . . .

One consistent bureaucratic obstacle experienced by homeless parents navigating the school system is the requirement that children be fully immunized before being allowed to attend school. The policy of full immunization is not unreasonable, but for homeless children who neither have the stability nor the resources to acquire such immunizations, this hurdle is nearly insurmountable. Even for those homeless children who have received the proper immunizations, maintaining and then producing these records can be daunting. While non-homeless families may have the luxury of filing such records in a safe place in their home, homeless families must carry them on their backs from shelter to shelter and struggle to keep track of them.”

Tanabe & Hippensteele, supra, at 54-55.

B. Statutory Structure: McKinney Vento Homeless Assistance Act

Recognizing various challenges homelessness presents to educational opportunities, Congress passed the Stewart B. McKinney Homeless Assistance Act in 1987. Title VII of the Act included the Education of Homeless Children and Youth Program, which the U.S. Department of Education was to administer. The Act mandated that homeless children receive equal access to schools and school services. In addition, states were required to maintain a homeless education coordinator to identify and address the needs of homeless children in their individual states. In 1994, the Education of Homeless Children and Youth Program was reauthorized as part of the Elementary and Secondary Education Act. The reauthorized version of the program expanded the funding and services provided through the Act, while also granting school districts more flexibility in their use of the funds.

In 2002, the program was reauthorized again as part of the No Child Left Behind Act and titled the McKinney-Vento Education for Homeless Children and Youths Act. In addition to increased funding, the major improvements in the program included requiring all school districts to appoint a homeless liaison (regardless of whether the district receives funds under the program),

requiring schools to expedite the enrollment of homeless students, allowing parents of homeless students to choose their school in their new district or remain enrolled in their original school (subject to some limitations), and mandating the provision of transportation to the student’s school. The overall stated goal was to ensure that “that homeless children and youth . . . have access to the education and other services they need . . . to meet the same challenging State student academic achievement standards to which all students are held.” 42 U.S.C. § 11431(4) (2006).

Below are the key statutory sections and subsections from the Act. As noted at the beginning of the book, the excerpts are significantly redacted, and for ease of reading, ellipses were not used to indicate omissions.

The McKinney-Vento Homeless Assistance Act

42 U.S.C. § 11431 et seq.

42 U.S.C. § 11431. Statement of Policy

The following is the policy of the Congress:

(1) Each State educational agency shall ensure that each child of a homeless individual and each homeless youth has equal access to the same free, appropriate public education, including a public preschool education, as provided to other children and youths.

(2) In any State that has a compulsory residency requirement as a component of the State’s compulsory school attendance laws or other laws, regulations, practices, or policies that may act as a barrier to the enrollment, attendance, or success in school of homeless children and youths, the State will review and undertake steps to revise such laws, regulations, practices, or policies to ensure that homeless children and youths are afforded the same free, appropriate public education as provided to other children and youths.

(3) Homelessness alone is not sufficient reason to separate students from the mainstream school environment.

(4) Homeless children and youths should have access to the education and other services that such children and youths need to ensure that such children and youths have an opportunity to meet the same challenging State student academic achievement standards to which all students are held.

42 U.S.C. § 11432. Grants for State and Local Activities for the Education of Homeless Children and Youths

(a) General authority

The Secretary is authorized to make grants to States in accordance with the provisions of this section to enable such States to carry out the activities described in subsections (d) through (g) of this section.

(d) Activities

Grants under this section shall be used for the following:

(1) To carry out the policies set forth in section 11431 of this title in the State.

(2) To provide activities for, and services to, homeless children, including preschool-aged homeless children, and youths that enable such children and youths to enroll in, attend, and succeed in school, or, if appropriate, in preschool programs.

(3) To establish or designate an Office of Coordinator for Education of Homeless Children and Youths in the State educational agency in accordance with subsection (f) of this section.

(4) To prepare and carry out the State plan described in subsection (g) of this section.

(5) To develop and implement professional development programs for school personnel to heighten their awareness of, and capacity to respond to, specific problems in the education of homeless children and youths.

(e) State and local subgrants

(3) Prohibition on segregating homeless students

(A) In general

Except as provided in subparagraph (B) and section 11433(a)(2)(B)(ii) of this title, in providing a free public education to a homeless child or youth, no State receiving funds under this part shall segregate such child or youth in a separate school, or in a separate program within a school, based on such child’s or youth’s status as homeless.

(B) Exception

Notwithstanding subparagraph (A), paragraphs (1)(J)(i) and (3) of subsection (g) of this section, section 11433(a)(2) of this title, and any other provision of this part relating to the placement of homeless children or youths in schools, a State that has a separate school for homeless children or youths that was operated in fiscal year 2000 in a covered county shall be eligible to receive funds under this part for programs carried out in such school if . . . the school [provides parents with written notice twice a year that explains the student’s rights and specifically states: (1) “the choice of schools homeless children and youths are eligible to attend”; (2) “that no homeless child or youth is required to attend a separate school for homeless children or youths”; (3) “that homeless children and youths shall be provided comparable services” as described in this act, which include “transportation services, educational services, and meals through school meals programs”; (4) “that homeless children and youths should not be stigmatized by school personnel”; and (5) “provides contact information for the local liaison for homeless children and youths and the State Coordinator for Education of Homeless Children and Youths.” The school must also provide assistance to children or youth in exercising their right to attend a school of their choice, and “coordinate with the local educational agency

with jurisdiction for the school selected by the parent or guardian (or youth), to provide transportation and other necessary services.”]

[In addition, the local educational agency within which the school resides must (1) “implement a coordinated system for ensuring that homeless children and youths” are advised of their choice in schools, “are immediately enrolled” in the school they select, and “are promptly provided necessary services . . . , including transportation, to allow homeless children and youths to exercise their choices of schools”; (2) prohibit schools from referring or assigning homeless students to separate schools for homeless students; (3) “identify and remove any barriers that exist in schools within the agency’s jurisdiction that may have contributed to the creation or existence of separate schools”; and (4) “not use funds received under this” Act to establish “new or additional separate schools for homeless children or youths.”]

(f) Functions of the office of coordinator

The Coordinator for Education of Homeless Children and Youths established in each State shall —

(1) gather reliable, valid, and comprehensive information on the nature and extent of the problems homeless children and youths have in gaining access to public preschool programs and to public elementary schools and secondary schools, the difficulties in identifying the special needs of such children and youths, any progress made by the State educational agency and local educational agencies in the State in addressing such problems and difficulties, and the success of the programs under this part in allowing homeless children and youths to enroll in, attend, and succeed in, school;

(2) develop and carry out the State plan described in subsection (g) of this section;

(3) collect and transmit to the Secretary, at such time and in such manner as the Secretary may require, a report containing such information as the Secretary determines is necessary to assess the educational needs of homeless children and youths within the State;

(4) facilitate coordination between the State educational agency, the State social services agency, and other agencies (including agencies providing mental health services) to provide services to homeless children, including preschool-aged homeless children, and youths, and to families of such children and youths;

(5) in order to improve the provision of comprehensive education and related services to homeless children and youths and their families, coordinate and collaborate with [educators (including preschool personnel), homeless and runaway service providers, local education agency liaisons, and community organizations representing the homeless]; and

(6) provide technical assistance to local educational agencies in coordination with local educational agency liaisons designated under subsection (g)(1)(J)(ii) of this section, to ensure that local educational agencies comply with the requirements of section 11432(e)(3) of this title and paragraphs (3) through (7) of subsection (g) of this section.

(g) State plan

(1) In general

Each State shall submit to the Secretary a plan to provide for the education of homeless

children and youths within the State. Such plan shall include —

[A] [procedures to identify homeless students and assess their special needs; resolve] disputes regarding the educational placement of [homeless students; and ensure that homeless students have equal access preschool programs, appropriate secondary education and support services, and before- and after-school care programs];

[B] programs for school personnel [that heighten their awareness] of the specific needs of runaway and homeless youths;

[C] [strategies to address] problems resulting from enrollment delays that are caused by immunization and medical records requirements; residency requirements; lack of birth certificates, school records, or other documentation; guardianship issues; or uniform or dress code requirements.

[D] [Assurances that] (i) the State educational agency and local educational agencies in the State will adopt policies and practices to ensure that homeless children and youths are not stigmatized or segregated on the basis of their status as homeless; (ii) local educational agencies will designate an appropriate staff person as a local educational agency liaison for homeless children and youths, to carry out the duties described [herein; and] (iii) the State and its local educational agencies will adopt policies and practices to ensure that transportation is provided, at the request of the parent or guardian, to and from the school of origin, in accordance with the following, as applicable:

(I) If the homeless child or youth continues to live in the area served by the local educational agency in which the school of origin is located, the child’s or youth’s transportation to and from the school of origin shall be provided or arranged by the local educational agency in which the school of origin is located.

(II) If the homeless child’s or youth’s living arrangements in the area served by the local educational agency of origin terminate and the child or youth, though continuing his or her education in the school of origin, begins living in an area served by another local educational agency, the local educational agency of origin and the local educational agency in which the homeless child or youth is living shall agree upon a method to apportion the responsibility and costs for providing the child with transportation to and from the school of origin. If the local educational agencies are unable to agree upon such method, the responsibility and costs for transportation shall be shared equally.

(3) Local educational agency requirements

(A) In general

The local educational agency serving each child or youth to be assisted under this part shall, according to the child’s or youth’s best interest —

(i) continue the child’s or youth’s education in the school of origin for the duration of homelessness —

(I) in any case in which a family becomes homeless between academic years or during an academic year; or

(II) for the remainder of the academic year, if the child or youth becomes

permanently housed during an academic year; or

(ii) enroll the child or youth in any public school that nonhomeless students who live in the attendance area in which the child or youth is actually living are eligible to attend.

(B) Best interest

In determining the best interest of the child or youth under subparagraph (A), the local educational agency shall[:]

(i) to the extent feasible, keep a homeless child or youth in the school of origin, except when doing so is contrary to the wishes of the child’s or youth’s parent or guardian;

(ii) provide a written explanation, including a statement regarding the right to appeal under subparagraph (E), to the homeless child’s or youth’s parent or guardian, if the local educational agency sends such child or youth to a school other than the school of origin or a school requested by the parent or guardian; and

(iii) in the case of an unaccompanied youth, ensure that the homeless liaison . . . assists in placement or enrollment decisions under this subparagraph, considers the views of such unaccompanied youth, and provides notice to such youth of the right to appeal under subparagraph (E).

(C) Enrollment

(i) The school selected in accordance with this paragraph shall immediately enroll the homeless child or youth, even if the child or youth is unable to produce records normally required for enrollment, such as previous academic records, medical records, proof of residency, or other documentation.

(ii) The enrolling school shall immediately contact the school last attended by the child or youth to obtain relevant academic and other records.

(iii) If the child or youth needs to obtain immunizations, or immunization or medical records, the enrolling school shall immediately refer the parent or guardian of the child or youth to the local educational agency liaison . . . , who shall assist in obtaining necessary immunizations, or immunization or medical records, in accordance with subparagraph (D).

(D) Records

Any record ordinarily kept by the school, including immunization or medical records, academic records, birth certificates, guardianship records, and evaluations for special services or programs, regarding each homeless child or youth shall be maintained[:] so that the records are available, in a timely fashion, when a child or youth enters a new school or school district.

(E) Enrollment disputes

If a dispute arises over school selection or enrollment in a school[:]

(i) the child or youth shall be immediately admitted to the school in which enrollment is sought, pending resolution of the dispute;

(ii) the parent or guardian of the child or youth shall be provided with a written explanation of the school’s decision regarding school selection or enrollment, including the rights of the parent, guardian, or youth to appeal the decision;

(iii) the child, youth, parent, or guardian shall be referred to the local educational agency liaison . . . , who shall carry out the dispute resolution process as described in paragraph (1)(C) as expeditiously as possible after receiving notice of the dispute; and

(iv) in the case of an unaccompanied youth, the homeless liaison shall ensure that the youth is immediately enrolled in school pending resolution of the dispute.

(F) Placement choice

The choice regarding placement shall be made regardless of whether the child or youth lives with the homeless parents or has been temporarily placed elsewhere.

(G) School of origin defined

In this paragraph, the term “school of origin” means the school that the child or youth attended when permanently housed or the school in which the child or youth was last enrolled.

(H) Contact information

Nothing in this part shall prohibit a local educational agency from requiring a parent or guardian of a homeless child to submit contact information.

(4) Comparable services

Each homeless child or youth to be assisted under this part shall be provided services comparable to services offered to other students in the school selected under paragraph (3), including the following:

(A) Transportation services.

(B) Educational services for which the child or youth meets the eligibility criteria, such as services provided under title I of the Elementary and Secondary Education Act of 1965 or similar State or local programs, educational programs for children with disabilities, and educational programs for students with limited English proficiency.

(C) Programs in vocational and technical education.

(D) Programs for gifted and talented students.

(E) School nutrition programs.

(5) Coordination

(A) In general

Each local educational agency serving homeless children and youths that receives assistance under this part shall coordinate[:]

(i) the provision of services under this part with local social services agencies and other agencies or programs providing services to homeless children and youths and their families, including services and programs funded under the Runaway and Homeless Youth Act (42 U.S.C. 5701 et seq.); and

(ii) with other local educational agencies on interdistrict issues, such as transportation or transfer of school records.

(B) Housing assistance

If applicable, each State educational agency and local educational agency that receives assistance under this part shall coordinate with State and local housing agencies responsible for developing the comprehensive housing affordability strategy described in section 12705 of this title to minimize educational disruption for children and youths who become homeless.

42 U.S.C. § 11433. Local Educational Agency Subgrants for the Education of Homeless Children and Youths

(a) General authority

(1) In general

The State educational agency shall, in accordance with section 11432(e) of this title, and from amounts made available to such agency under section 11435 of this title, make subgrants to local educational agencies for the purpose of facilitating the enrollment, attendance, and success in school of homeless children and youths.

(2) Services

(A) In general

Services under paragraph (1) —

(i) may be provided through programs on school grounds or at other facilities;

(ii) shall, to the maximum extent practicable, be provided through existing programs and mechanisms that integrate homeless children and youths with nonhomeless children and youths; and

(iii) shall be designed to expand or improve services provided as part of a school’s regular academic program, but not to replace such services provided under such program.

(B) Services on school grounds

If services under paragraph (1) are provided on school grounds, schools —

i) may use funds under this subtitle to provide the same services to other children and youths who are determined by the local educational agency to be at risk of failing in, or dropping out of, school, subject to the requirements of clause (ii); and

(ii) except as otherwise provided in section 11432(e)(3)(B) of this title, shall not provide services in settings within a school that segregate homeless children and youths from other children and youths, except as necessary for short periods of time for health and safety emergencies; or to provide temporary, special, and supplementary services to meet the unique needs of homeless children and youths.

(3) Requirement

Services provided under this section shall not replace the regular academic program and shall be designed to expand upon or improve services provided as part of the school’s regular academic program.

(b) Application

A local educational agency that desires to receive a subgrant under this section shall submit an application to the State educational agency at such time, in such manner, and containing or accompanied by such information as the State educational agency may reasonably require.

(c) Awards

The State educational agency shall, in accordance with the requirements of this part and from amounts made available to it under section 11435 of this title, make competitive subgrants to local educational agencies that submit applications under subsection (b) of this section. Such subgrants shall be awarded on the basis of the need of such agencies for assistance under this part and the quality of the applications submitted.

(d) Authorized activities

A local educational agency may use funds awarded under this section for activities that carry out the purpose of this part, including the following:

(1) The provision of tutoring, supplemental instruction, and enriched educational services that are linked to the achievement of the same challenging State academic content standards and challenging State student academic achievement standards the State establishes for other children and youths.

(2) The provision of expedited evaluations of the strengths and needs of homeless children and youths, including needs and eligibility for programs and services (such as educational programs for gifted and talented students, children with disabilities, and students with limited English proficiency, services provided under title I of the Elementary and Secondary Education Act of 1965 or similar State or local programs, programs in vocational and technical education, and school nutrition programs).

(3) Professional development and other activities for educators and pupil services personnel that are designed to heighten the understanding and sensitivity of such personnel to the needs of homeless children and youths, the rights of such children and youths under this subtitle, and the specific educational needs of runaway and homeless youths.

(4) The provision of referral services to homeless children and youths for medical, dental, mental, and other health services.

(5) The provision of assistance to defray the excess cost of transportation for students under section 11432(g)(4)(A) of this title, not otherwise provided through Federal, State, or local funding, where necessary to enable students to attend the school selected under section 11432(g)(3) of this title.

(6) The provision of developmentally appropriate early childhood education programs, not otherwise provided through Federal, State, or local funding, for preschool-aged homeless children.

(7) The provision of services and assistance to attract, engage, and retain homeless children and youths, and unaccompanied youths, in public school programs and services provided to nonhomeless children and youths.

(8) The provision for homeless children and youths of before- and after-school, mentoring, and summer programs in which a teacher or other qualified individual provides tutoring, homework assistance, and supervision of educational activities.

(9) If necessary, the payment of fees and other costs associated with tracking, obtaining, and transferring records necessary to enroll homeless children and youths in school, including birth certificates, immunization or medical records, academic records, guardianship records, and evaluations for special programs or services.

(10) The provision of education and training to the parents of homeless children and youths about the rights of, and resources available to, such children and youths.

(11) The development of coordination between schools and agencies providing services to homeless children and youths, as described in section 11432(g)(5) of this title.

(12) The provision of pupil services (including violence prevention counseling) and referrals for such services.

(13) Activities to address the particular needs of homeless children and youths that may arise from domestic violence.

(14) The adaptation of space and purchase of supplies for any nonschool facilities made available under subsection (a)(2) of this section to provide services under this subsection.

(15) The provision of school supplies, including those supplies to be distributed at shelters or temporary housing facilities, or other appropriate locations.

(16) The provision of other extraordinary or emergency assistance needed to enable homeless children and youths to attend school.

NOTES AND QUESTIONS

1. The McKinney Act defines the term “homeless children and youths” as “individuals who lack a fixed, regular, and adequate nighttime residence,” which includes “(i) children and youths who are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason; are living in motels, hotels, trailer parks, or camping grounds due to the lack of alternative adequate accommodations; are living in emergency or transitional shelters; are abandoned in hospitals; or are awaiting foster care placement; (ii) children and youths who have a primary nighttime residence that is a public or private place not designed for or ordinarily used as a regular sleeping accommodation for human beings . . . ; (iii) children and youths who are living in cars, parks, public spaces, abandoned buildings, substandard housing, bus or train stations, or similar settings; and migratory children . . . who qualify as homeless for the purposes of this part because the children are living in circumstances described in clauses (i) through (iii).” 42 U.S.C. § 11434a. Students falling in any of these categories are eligible to receive benefits under the Act.

Cary M. Martin, a graduate of Northwestern Law School and formerly homeless herself, writes:

The McKinney Act definition of homelessness is extremely significant because it does not require that youth live on the streets in order to be considered homeless. Most parents who have lost their housing are not visible to the public eye because they will often seek other locations such as motels, and temporarily staying with others in order to protect their children from the streets and keep their families together. Other federal laws limit the definition of homelessness to individuals who live in the streets or in a shelter, which prevents many homeless families from receiving assistance under those laws.

When my family experienced chronic poverty, we never actually lived on the streets or in a shelter, but we were still considered homeless under the Act. When my mother first lost her Section 8 subsidy, we were temporarily doubled up with other families. These families consisted of my mother’s friends, her former foster parents and even one of my teachers. Once the temporary living situations failed, we lived in a partially vacant office building without access to a bathroom or kitchen. After we lived in the office building for about a year, we lived in a hotel for approximately two years where there was a bathroom, but again no kitchen. As a ward of the state, I was also considered homeless under the McKinney Act while awaiting foster care placement. Because I met the above definition of homelessness, I was able to access many resources mandated under the Act.

Cary M. Martin, Homeless Education: Unveiling the Truth Behind Beating the Odds, 14 PUB. INT. L. REP. 294, 298 (2009).

2. Prior to this legislation, what incentives might a district have had for denying enrollment or equal opportunity to homeless students? Does this legislation appropriately respond to those incentives and deter activities that impede the education of homeless youth?

3. This most recent version of the Act included several new provisions. Scholars emphasized three important changes:

First, under previous acts, only school districts that receive McKinney-Vento grants from the state were required to appoint homeless liaisons. The . . . Act [now] requires that all school districts in states that receive McKinney-Vento grants appoint a homeless liaison, regardless of whether or not a school district receives a McKinney-Vento sub-grant. . . .

Second, the [Act now] requires schools to expedite enrollment of homeless children. Schools are required to immediately enroll a homeless child or a youth “even if the child or youth lacks records normally required for enrollment, such as previous academic records, medical records, proof of residency, or other documentation.” . . .

Third, the [Act now] allows parents the right to choose the school in the new district or the “school of origin.” . . . [Although i]n cases where the school and parents disagree on school placement, they may resolve the situation via a dispute resolution process set up by the state.

John Wong et al., The McKinney-Vento Homeless Assistance Act — Education for Homeless Children and Youths Program: Turning Good Law into Effective Education, 11 GEO. J. ON POVERTY L. & POL’Y 283, 294-295 (2004).

4. Given what you know about homelessness, what provisions of this Act are most important in preserving educational opportunity for homeless students? Which provisions do you foresee being the most difficult to implement and enforce?

C. Funding and Enforcement of the Act

The statutory language in the Act is aggressive, imposing various important obligations on school districts. The funding for the Act, however, has been disappointing at best. As John Wong and his coauthors write:

Even as family homelessness grew significantly during the 1990s and the economy was booming, federal funding remained minimal. The U.S. Department of Education Planning and Evaluation Services reports that, operating at a $28.8 million level in FY2000, EHCY is “a relatively small program, and the number of sub-grantees receiving McKinney funds is small; approximately four percent of school districts nationwide receive sub-grants.”

<TXT>Wong, supra, at 296. Four years later, funding for the Act had grown to $55 million, but that number still amounted to only $20 to $30 per homeless child (depending on whether one assumes the low or high estimates of the number of homeless children). Id. Wong and his colleagues argue that, based on Congress’s own estimates, funding in the order of $300 million, rather than $55 million, would have been necessary to carry out the Act’s objectives. As another commentator points out, transportation is the major barrier to attending school for most homeless children, but the yearly per-pupil funding levels for the Act are insufficient to cover just a single day of transportation for students in many school districts, much less transportation for the entire duration of their homelessness. Jennifer A. Na, For Better or For Worse? A Closer Look at the Federal Government’s Proposal to Provide Adequate Educational Opportunities for Homeless Children, 51 HOW. L.J. 863, 884 (2008).Transportation costs, however, are just one of various unfunded services contemplated by the Act. According to a nonprofit organization that served homeless children in 2008, “it costs $75 for each homeless child to have a backpack fully loaded with school supplies in a given year. In addition, it costs $250 to train a volunteer tutor for a homeless child; $500 to provide one week of tutoring at a homeless shelter; and at least $1,000 to connect one volunteer tutor with a homeless child for one year of free tutoring.” Id. at 884. Providing transportation and services such as these to the nation’s homeless children would cost approximately $1.5 billion, of which the federal government was supplying less than 5 percent at the time. Id. at 885.

Funding shortfalls of this magnitude have had disastrous impacts at all levels. Neither state nor the federal governments have effectively monitored or enforced the Act, and school districts have been unable or unwilling to provide the services required by the Act. See generally id. at 885-888. In fact, the incentives are so low that one might query whether a district, if taken to task, would refuse federal funds rather than actually carry out the Act’s requirements. In the face of the District of Columbia Public School District’s refusal to carry out basic aspects of the legislation, parents sued. The following case addresses whether the Act provides parents such a claim, which is crucial for homeless students in uniformly underfunded programs across the country, given that no other state or federal entity appeared to be seriously monitoring or enforcing the Act.

Lampkin v. District of Columbia

27 F.3d 605 (D.C. Cir. 1994)

Parents of homeless children residing in the District of Columbia seek to invoke 42 U.S.C. § 1983 to enforce provisions of the Stewart B. McKinney Homeless Assistance Act. Concluding that the McKinney Act does not confer enforceable educational rights on homeless children, the district court granted the District of Columbia’s motion to dismiss. [W]e reverse and remand for further proceedings.

I. INTRODUCTION

The McKinney Act was passed in 1987 in response to “the critically urgent needs of the homeless,” including the proper education of their children. The Act is a mix of large visions and gritty detail, combining specific sections dealing with the provision of education to homeless children and youths with a broad congressional policy that “each State educational agency . . . assure that each child of a homeless individual and each homeless youth have access to a free, appropriate public education . . . [and that] homelessness alone . . . not be sufficient reason to separate students from the mainstream school environment.”

To achieve this goal, the Secretary of Education is empowered to grant funds to States participating in the programs authorized by the McKinney Act. Grants may be used, among other purposes, to “establish or designate an Office of Coordinator of Education of Homeless Children and Youth” and to “prepare and carry out the State plan described in subsection (e) of this section.” Subsection (d) defines the functions of the Coordinator, which include the duty to “develop and carry out the State plan” and to “facilitate coordination” between state agencies and others providing assistance to homeless children and their families.

Appellants here are homeless children living in the District of Columbia, which is deemed a State for purposes of the McKinney Act. They filed this action in the district court pursuant to 42 U.S.C. § 1983 (1988), which provides a cause of action against persons who infringe upon federal constitutional or statutory rights while acting “under color” of state law. Appellants allege that the District has violated section 11432(e)(3), (5), (7), (8) and (9), as well as sections 11431(1), (2) and 11432(c)(2), (4). They seek an order requiring, among other things, that the District consider parents’ requests and make “best interests” determinations when placing homeless children in schools; that it assure homeless children the transportation necessary to attend those schools; and that it ensure them access to various educational and school meal programs, and other services.

The district court found that the McKinney Act did not create an enforceable right of action under section 1983 and dismissed the complaint for failure to state a claim upon which relief may be granted. Thus the sole question before us on appeal is whether the homeless children can enforce the relevant provisions of the McKinney Act pursuant to section 1983, a question we answer in the affirmative.

II. DISCUSSION

Since 1980, the Supreme Court has recognized that section 1983 may be invoked to challenge violations of federal statutes. This rule has its exceptions: A statute will not be deemed enforceable under section 1983 if Congress did not intend to create any enforceable rights in it (which may be evidenced by the provision of a comprehensive remedial scheme in the statute itself) and where the statute “did not create enforceable rights, privileges, or immunities within the meaning of § 1983.” Wright v. Roanoke Redev. and Hous. Auth., 479 U.S. 418, 423 (1987).

[The Court has previously established a test “to determine whether a statutory provision creates a federal right enforceable under section 1983. First, the provision must have been intended to benefit the putative plaintiff.” Important here is the extent to which that statute imposes a binding mandate on the governmental unit. Second, the statutory scheme should not include “a remedial scheme that is ‘sufficiently comprehensive . . . to demonstrate congressional intent to preclude the remedy of suits under § 1983.’” Finally, the right to be enforced should not be vague or amorphous.]

In applying this jurisprudence to the McKinney Act, the first question to ask is whether the statute was intended to benefit persons such as appellants’ children. This point is not in dispute here: The parties all agree that the McKinney Act was enacted to benefit homeless children. That said, we must hold that the Act “creates an enforceable right unless it reflects merely a congressional preference for a certain kind of conduct rather than a binding obligation on the governmental unit.” Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 509 (1990). Mindful of the need “to analyze the statutory provisions in detail, in light of the entire legislative enactment, to determine whether the language in question create[s] enforceable rights, privileges, or immunities within the meaning of § 1983,” we must determine whether the Act creates rights that are substantively enforceable under section 1983.

Section 11432(f) of the McKinney Act provides: “No State may receive a grant under this section unless the state educational agency submits an application to the Secretary at such time, in such manner, and containing or accompanied by such information as the Secretary may reasonably require.” 42 U.S.C. § 11432(f) (1988). The regulations issued by the Secretary stipulate that a State may not begin to obligate funds received pursuant to a federal grant until the later of the two following dates: “[t]he date that the State plan is mailed or hand delivered to the Secretary in substantially approvable form” and “[t]he date that the funds are first available for obligation by the Secretary.” 34 C.F.R. § 76.703(a)(1) & (2). The regulations further stipulate that a State “shall comply with the State plan and applicable statutes, regulations, and approved applications, and shall use Federal funds in accordance with those statutes, regulations, plan, and applications.” Id. § 76.700. Here, of course, the “applicable statute[ ]” is the McKinney Act, and the obligations it imposes on participating States are clear. The Act requires that grants provided by the Secretary be used “to prepare and carry out the State plan,” 42 U.S.C. § 11432(c)(4), and that “[e]ach plan . . . assure . . . that local educational agencies within the State will comply with the requirements of paragraphs (3) through (9),” id. § 11432(e)(2). Paragraphs (3) through (9) in turn provide highly specific instructions for meeting a variety of needs of homeless children and youths. This structure markedly contrasts with that of the Child Welfare Act, with which the Suter Court was concerned [and rejected a cause of action]. Although both Acts describe in detail the contents of the plan a participating State must adopt, only the McKinney Act provides specific directions for the plan’s execution. It is this distinction that is ignored by our dissenting

colleague, who concludes that “the genuine statutory duty of a recipient state under the McKinney Act is to prepare and carry out a plan, designed to achieve nine designated goals.” While we agree that the McKinney Act requires the State to submit such a plan, it also differs significantly from the Adoption Act in that paragraphs (3) through (9) of subsection 11432(e) of the McKinney Act not only inform the State in great detail on how its plan is to be implemented, they impose obligations that are independent of the plan. These are set forth in specific, mandatory terms; and it is these that appellants seek to enforce. Thus, paragraph (3) requires that “[t]he local educational agency of each homeless child and each homeless youth shall [assign the child or youth to a school which] is in the child’s best interest or the youth’s best interest. . . . In determining the best interests of the child or youth . . . consideration shall be given to a request made by a parent regarding school selection.” Id. § 11432(e)(3) (emphasis added). Succeeding paragraphs stipulate that “[e]ach homeless child shall be provided services comparable to services offered to other students in the school . . . ,” id. § 11432(e)(5) (emphasis added), and that records ordinarily kept by the school “shall be maintained” so as to be available when the child enters a new school district. Id. § 11432(e)(6) (emphasis added). Furthermore, they provide that “[e]ach local educational agency serving homeless children or youth that receives assistance under this subchapter shall coordinate with local social services agencies, and other agencies or programs providing services to such children or youth and their families[,] id. § 11432(e)(7) (emphasis added), and “shall designate a homelessness liaison.” Id. § 11432(e)(8) (emphasis added). We read this language as “mandatory rather than hortatory.” This interpretation is supported by paragraph (2), which describes paragraphs (3) through (9) as “requirements” rather than options. Id. § 11432(e)(2).

In addition to the mandatory obligations listed in those seven paragraphs, the McKinney Act also provides that “[t]he Coordinator of Education of Homeless Children and Youth established in each State shall . . . once every 2 years, gather data on the number and location of homeless children and youth in the State . . . develop and carry out the State plan . . . [and] facilitate coordination between the State education agency, the State social services agency, and other agencies providing services to homeless children and youth and their families.” Id. § 11432(d). The language of these provisions is sufficiently clear to put the States on notice of the obligations they assume when they choose to accept grants made under the Act.

Moreover, as we noted earlier, the Secretary has promulgated regulations stipulating that for state-administered programs like the McKinney Act, “[a] State . . . shall comply with the State plan and applicable statutes, regulations, and approved applications, and shall use Federal funds in accordance with those statutes, regulations, plan, and applications.” 34 C.F.R. § 76.700. Contrast Suter v. Artist M., 503 U.S. 347 (1992) (noting that the regulations accompanying the Child Welfare Act “do not evidence a view that [the statute] places any requirement for state receipt of federal funds other than the requirement that the State submit a plan to be approved by the Secretary” (footnote omitted)). Here, the regulations merely reinforce our conclusion that States undertake well-defined obligations when they elect to accept funds under the McKinney Act.

Finally, the McKinney Act contains no statutory mechanisms for the administrative enforcement of the beneficiaries’ rights, suggesting that Congress did not intend to foreclose a private cause of action that is enforceable under section 1983. See Suter (citing alternative enforcement mechanisms provided by sections 671(b) and 672(a)(1) of the Child Welfare Act as showing that

“the absence of a remedy to private plaintiffs under § 1983 does not make the reasonable efforts clause a dead letter” (footnote omitted)). Thus there is nothing in the structure of the McKinney Act to suggest that its beneficiaries may not invoke section 1983 to enforce their rights under the Act.

One hurdle remains before we can declare that the rights conferred on homeless children by the Act are enforceable in federal court. Even if a statute confers rights on a beneficiary, their judicial enforcement requires that they not be overly “vague and amorphous.” Wilder, 496 U.S. at 519. The District argues that the statutory requirement that a school be selected in accordance with the “best interests” of a homeless child is at least as vague as the “reasonable efforts” clause that the Court found too amorphous in Suter.

This argument asserts, in essence, that the judiciary is incapable of determining the “best interests” of children, just as the plaintiffs in Wilder argued that the judiciary was incapable of determining what constitutes “reasonable and adequate” hospital rates. In response, the Court observed: “That the [Boren] [A]mendment gives the States substantial discretion in choosing among reasonable methods of calculating rates may affect the standard under which a court reviews whether the rates comply with the amendment, but it does not render the amendment unenforceable by a court. While there may be a range of reasonable rates, there certainly are some rates outside that range that no State could ever find to be reasonable and adequate under the Act. Although some knowledge of the hospital industry might be required to evaluate a State’s findings with respect to the reasonableness of its rates, such an inquiry is well within the competence of the Judiciary.”

The obligations imposed by the McKinney Act involve, for the most part, the exercise of judgment by a local educational agency. A court, however, may discern whether the criteria or procedures adopted by the agency are reasonably designed to aid it in making the school placement decision. Moreover, we have little doubt that the court would also have the competence to determine whether the District had complied with its obligation to assign a particular homeless child to a school that was in his best interests.

In recent years, the courts of this circuit have frequently been called upon to determine whether the District of Columbia public school system had met a comparable obligation under the Education for the Handicapped Act, 20 U.S.C. §§ 1400 et seq. (1988), which requires participating States to assure handicapped children of an “appropriate education.” See, e.g., Kerkam v. Superintendent, D.C. Public Schools, 931 F.2d 84 (D.C. Cir. 1991); Knight by Knight v. District of Columbia, 877 F.2d 1025 (D.C. Cir. 1989). Although the criteria and procedures set forth in the Education for the Handicapped Act are more detailed than those in the McKinney Act, the ultimate determination made under that Act — that the handicapped child’s education is “appropriate” to his needs — is no less vague or amorphous than the one at issue here. As in Kerkam and Knight, should a dispute arise between the educational agency and the parents of the homeless child as to whether the school to which the child has been assigned is in his best interest, a court is clearly competent to consider the testimony of opposing witnesses and to decide whether the agency’s determination of the child’s best interest was reasonable.

We conclude, from the foregoing, that section 11432(e)(3) of the McKinney Act confers enforceable rights on its beneficiaries and that appellants may invoke section 1983 to enforce those rights.

For the foregoing reasons, we reverse the district court’s order granting the District’s motion to dismiss and remand the case for further proceedings in accordance with this opinion.

NOTES AND QUESTIONS

1. The District of Columbia petitioned for certiorari to the Supreme Court, but the Court denied it. District of Columbia v. Lampkin, 513 U.S. 1016 (1994).

2. Do you agree that Congress intended to create enforceable rights in the McKinney Act? Why would Congress intend a cause of action but not supply the funds necessary for district’s to comply with the Act? Would any district reasonably accept the meager funds available under the Act if they knew they must either shoulder almost the entire cost themselves or be subject to liability? Do all the provisions in the Act create enforceable rights, or are some of them too vague and unrelated to individual rights to be enforceable?

——————

After the court of appeals issued its decision against the District of Columbia schools, the district exercised the option to opt out of the program. In effect, if it was going to be subject to suit, it did not wish to participate in the federal homelessness program. The following case details what, if any, obligations the district might still have under those circumstances.

Lampkin v. District of Columbia

886 F. Supp. 56 (D.D.C. 1995)

[On remand from the court of appeals, the district court] determined that defendants had violated the McKinney Act by failing to address educational needs of homeless children in a timely fashion [and] by failing to provide homeless children with access to adequate transportation to and from school. [The court ordered the defendants] (a) to identify homeless children at the time they first arrive at an intake center, and refer these children within 72 hours for requisite educational services, including transportation; (b) to offer bus tokens to all homeless children who travel more than 1.5 miles to attend primary or secondary school; (c) to offer tokens to a homeless parent or other designated adult escort who accompanies a homeless child to or from school; and (d) to eliminate any delays occasioned by once-a-week distribution of tokens at homeless shelters. [The defendants then moved to vacate the order based on the fact that it] has withdrawn from the McKinney Act Education Program effective March 20, 1995. Accordingly, say defendants, there is no longer a continuing obligation by the District to provide education services to homeless families under the provisions of the McKinney Act relied upon by plaintiffs in this lawsuit.

[Plaintiffs contend “that the D.C. Code prohibits the District from withdrawing from the McKinney Act Education Program.” While this argument may have formerly contained some substance under old D.C. Code that indicated the Mayor “shall” participate in federal homelessness programs “to the maximum extent allowable,” current D.C. code states only that the Mayor “may” participate in such programs.]

[Regardless,] plaintiffs suggest that withdrawal from the McKinney Act Education Program would not relieve the District of responsibility to comply with the Act. This argument defies logic and common sense. The Act authorizes the Secretary of Education “to make grants to States to carry out the activities” enumerated. The District of Columbia is included as a “State” pursuant to 42 U.S.C. § 11421(d). Quite clearly, the Act is meant to apply only to those states that receive grants. Section 11432(e)(1) declares that “[e]ach State shall adopt a plan to provide for the education of each homeless child. . . .” It is simply inconceivable that Congress intended to coerce every state to adopt a plan that would serve as a blueprint for the expenditure of grant funds that the state would not receive.

Plaintiffs point to subsections 11432(e)(7) and (8), where coverage is specifically limited to each local educational agency “that receives assistance under this subchapter.” Thus, Congress knew how to restrict coverage when it wanted to. But for purposes of the McKinney Act, the District is a “State” not a “local educational agency.” Under the Act, states that receive grants may or may not allocate portions of their grant to local agencies. Congress may therefore have found it necessary or desirable to distinguish the obligations of local educational agencies that receive assistance from those agencies that do not. Both could coexist within the McKinney Act framework. By contrast, states that do not receive McKinney Act assistance are states to which the Act has no application.

The D.C. Circuit Court of Appeals concurs. In reviewing various sub-sections of section 11432(e), the court agreed that the language did not specifically exclude any state. Nonetheless, the court concluded: “The language of these provisions is sufficiently clear to put the States on notice of the obligations they assume when they choose to accept grants made under the Act.” Id. (emphasis added).

Plaintiffs and defendants disagree about the extent of compliance with the court’s [prior] order. They disagree whether plaintiffs have obtained all of the relief originally sought. And they disagree whether any of the plaintiffs have standing to request injunctive relief as a remedy for past wrongs by the District. Because the court is unwilling to invoke its equitable powers to provide further injunctive relief, it is unnecessary to reach these disputed issues.

Here, having withdrawn from the McKinney Act Education Program, the District will no longer be committing a wrong. Nor is there a cognizable danger of recurrence, absent re-application for McKinney Act assistance. Nor are constitutional rights at stake. A preventive or structural injunction would be manifestly inappropriate. Arguably, a reparative injunction might cleanse the effects of the District’s past transgressions. The basis for issuing such an injunction is a balancing of benefits versus costs. In this case, the balance weighs heavily against injunctive relief.

On the benefit side, a reparative injunction would provide the plaintiffs the very thing to which they were formerly entitled under the McKinney Act. But two facts militate against this potential benefit. First, plaintiffs’ ephemeral entitlement disappeared when the District withdrew from the Education Program. Second, section 3-206.9 of the D.C. Code is unambiguous: “[N]othing in this subchapter shall be construed to create an entitlement in any homeless person or family to emergency shelter or support services.”

On the cost side, a reparative injunction would be a draconian cure for several reasons. First, without a continuing wrongful act to correct, an injunction would unduly intrude upon the operation of the District of Columbia government. Second, relief would be coerced by the court in respect of parties that were not before the court. Third, there is nothing in the record that particularizes the harm suffered by each plaintiff. Consequently, it would be most difficult for the court to structure injunctive relief that even roughly corresponds to the past wrongs suffered. In short, the costs of a reparative injunctive far exceed its benefit.

Notwithstanding protestations of concern for the plight of the less fortunate, the District of Columbia government has mounted a vigorous and successful legal challenge to continued application of this court’s injunction. Whatever commitment the District has to ameliorate the educational obstacles faced by homeless children, that commitment has not survived its head-on collision with budget realities. Defendants have assigned some dollar figure to the cost of compliance with the McKinney Act — apparently more than the Mayor and City Council are willing to spend on the educational services mandated by [this court’s prior order.]

The court must interpret and apply existing law. Given the District’s withdrawal from the Program, there is now no law to apply. Defendants have succeeded in circumventing the requirements of the McKinney Act, thereby denying District citizens the federal assistance that would otherwise have been available. If there is to be a remedy, it lies with the District’s voters, not with this court. The injunction contained in the court’s order of March 7, 1995 is hereby dissolved.

NOTES AND QUESTIONS

1. To the District of Columbia’s credit, notwithstanding its formal withdraw from the McKinney-Vento Act, the district continued to serve homeless students and meet various aspects of the Act. Deborah M. Thompson, Breaking the Cycle of Poverty: Models of Legal Advocacy to Implement the Educational Promise of the McKinney Act for Homeless Children and Youth, 31 CREIGHTON L. REV. 1209, 1242 (1998). In fact, the district appears to have done a better job serving its homeless students than most other districts in the nation. Id.

2. Due to the practical realities revealed by the remand in Lampkin, very little subsequent litigation has been filed under the Act. The only litigation of note brought since Lampkin was in New York and Hawaii. See Nat’l L. Ctr. on Homelessness & Poverty v. New York State, Civil Action No. 04-0705 (E.D.N.Y. Feb. 20, 2004); Nat’l L. Ctr. on Homelessness & Poverty v. New York State (E.D.N.Y. Dec. 22, 2008); Kaleuati v. Hawaii, Civil No. 07-00504 HG LEK, Order Granting Preliminary Injunction (D. Haw. 2008).

3. What other strategies might advocates pursue? What action, if any, should Congress take?

PROBLEM

Sam attends Fort Walton High School in Texas. His father lost his job two months ago, and the family is facing eviction. Sam’s grandparents live in Maine, but his family lacks the funds to make the long trip to Maine, and his father doubts he can find work there in any event. Sam’s family is looking into the possibility of moving to a homeless shelter in the neighboring county. His parents, however, realize the importance of his education and want to understand Sam’s

options before they do anything. You work in the local legal aid office and are tasked with advising them. Texas receives McKinney-Vento funds. What rights does Sam have? Is there any risk that if students like Sam begin pressing their rights, Texas will stop participating in the Act?

Chapter 7Discipline

BOARD OF EDUCATION v. EARLS536 U.S. 822 (2002)

Justice THOMAS delivered the opinion of the Court.The Student Activities Drug Testing Policy implemented by the Board of Education of

Independent School District No. 92 of Pottawatomie County (School District) requires all students who participate in competitive extracurricular activities[, such as “Academic Team, Future Farmers of America, Future Homemakers of America, band, choir, pom-pom, cheerleading, and athletics,” to submit to drug testing before participating in the activity and random testing thereafter.] Because this Policy reasonably serves the School District's important interest in detecting and preventing drug use among its students, we hold that it is constitutional.

In Vernonia, this Court held that the suspicionless drug testing of athletes was constitutional. The Court, however, did not simply authorize all school drug testing, but rather conducted a fact-specific balancing of the intrusion on the children's Fourth Amendment rights against the promotion of legitimate governmental interests. Applying the principles of Vernonia to the somewhat different facts of this case, we conclude that Tecumseh's Policy is also constitutional.

A[As in Veronia, the Court reiterates the ways in which students’ expectations of privacy are

limited in school and, given the nature of sports, athletes have an even lower expectation of privacy.] [S]tudents who participate in competitive extracurricular activities voluntarily subject themselves to many of the same intrusions on their privacy as do athletes. Some of these clubs and activities require occasional off-campus travel and communal undress. All of them have their own rules and requirements for participating students that do not apply to the student body as a whole. This regulation of extracurricular activities further diminishes the expectation of privacy among schoolchildren. Cf. Vernonia, 515 U.S. 646, 657 (1995) (“Somewhat like adults who choose to participate in a closely regulated industry, students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy”). We therefore conclude that the students affected by this Policy have a limited expectation of privacy.

BNext, we consider the character of the intrusion imposed by the Policy. Urination is “an

excretory function traditionally shielded by great privacy.” But the “degree of intrusion” on one's privacy caused by collecting a urine sample “depends upon the manner in which production of the urine sample is monitored.” [Here, the collection and testing of the urine is nearly identical the circumstances we approved in Veronia.] Moreover, the test results are not turned over to any law enforcement authority. Nor do the test results here lead to the imposition of discipline or have any academic consequences. Rather, the only consequence of a failed drug test is to limit the student's privilege of participating in extracurricular activities. Given the minimally intrusive nature of the sample collection and the limited uses to which the test results are put, we conclude that the invasion of students' privacy is not significant.

CFinally, this Court must consider the nature and immediacy of the government's concerns and

the efficacy of the Policy in meeting them. This Court has already articulated in detail the importance of the governmental concern in preventing drug use by schoolchildren. The drug abuse problem among our Nation's youth has hardly abated since Vernonia was decided in 1995.

In fact, evidence suggests that it has only grown worse. Additionally, the School District in this case has presented specific evidence of drug use at

Tecumseh schools. Teachers testified that they had seen students who appeared to be under the influence of drugs and that they had heard students speaking openly about using drugs. A drug dog found marijuana cigarettes near the school parking lot. Police officers once found drugs or drug paraphernalia in a car driven by a Future Farmers of America member. And the school board president reported that people in the community were calling the board to discuss the “drug situation.”

Respondents consider the proffered evidence insufficient and argue that there is no “real and immediate interest” to justify a policy of drug testing nonathletes. We have recognized, however, that “[a] demonstrated problem of drug abuse ... [is] not in all cases necessary to the validity of a testing regime,” but that some showing does “shore up an assertion of special need for a suspicionless general search program.” The School District has provided sufficient evidence to shore up the need for its drug testing program.

Furthermore, this Court has not required a particularized or pervasive drug problem before allowing the government to conduct suspicionless drug testing. [T]he need to prevent and deter the substantial harm of childhood drug use provides the necessary immediacy for a school testing policy. Indeed, it would make little sense to require a school district to wait for a substantial portion of its students to begin using drugs before it was allowed to institute a drug testing program designed to deter drug use.

Given the nationwide epidemic of drug use, and the evidence of increased drug use in Tecumseh schools, it was entirely reasonable for the School District to enact this particular drug testing policy. We reject the Court of Appeals' novel test that “any district seeking to impose a random suspicionless drug testing policy as a condition to participation in a school activity must demonstrate that there is some identifiable drug abuse problem among a sufficient number of those subject to the testing, such that testing that group of students will actually redress its drug problem.”

Respondents also argue that the testing of nonathletes does not implicate any safety concerns, and that safety is a “crucial factor” in applying the special needs framework. Respondents are correct that safety factors into the special needs analysis, but the safety interest furthered by drug testing is undoubtedly substantial for all children, athletes and nonathletes alike. We know all too well that drug use carries a variety of health risks for children, including death from overdose.

Finally, we find that testing students who participate in extracurricular activities is a reasonably effective means of addressing the School District's legitimate concerns in preventing, deterring, and detecting drug use. While in Vernonia there might have been a closer fit between the testing of athletes and the trial court's finding that the drug problem was “fueled by the ‘role model’ effect of athletes' drug use,” such a finding was not essential to the holding. Vernonia did not require the school to test the group of students most likely to use drugs, but rather considered the constitutionality of the program in the context of the public school's custodial responsibilities. Evaluating the Policy in this context, we conclude that the drug testing of Tecumseh students who participate in extracurricular activities effectively serves the School District's interest in protecting the safety and health of its students.

Justice GINSBURG, with whom Justice STEVENS, JUSTICE O'CONNOR, and Justice SOUTER join, dissenting.

Seven years ago, in Vernonia School Dist. 47J v. Acton, this Court determined that a school

district's policy of randomly testing the urine of its student athletes for illicit drugs did not violate the Fourth Amendment. In so ruling, the Court emphasized that drug use “increase[d] the risk of sports-related injury” and that Vernonia's athletes were the “leaders” of an aggressive local “drug culture” that had reached “ ‘epidemic proportions.’ ” Today, the Court relies upon Vernonia to permit a school district with a drug problem its superintendent repeatedly described as “not ... major,” to test the urine of an academic team member solely by reason of her participation in a nonathletic, competitive extracurricular activity-participation associated with neither special dangers from, nor particular predilections for, drug use.

Although “‘special needs' inhere in the public school context,” those needs are not so expansive or malleable as to render reasonable any program of student drug testing a school district elects to install. The particular testing program upheld today is not reasonable; it is capricious, even perverse: Petitioners' policy targets for testing a student population least likely to be at risk from illicit drugs and their damaging effects. I therefore dissent.

QUESTIONS AND NOTES

1. Does the Court’s opinion in Earls represent a broad expansion of Veronia? What factors justified the drug testing in Earls? Are those factors, or other relevant factors, present here?

2. Justice Thomas indicates that schools’ authority to drug test students grows out of their custodial relationship with students and discounts the extent to which Veronia was predicated on the specific drug culture among athletes and its threat to them. Is his reading of Veronia accurate? If a school’s right to search was based on custodial authority granted by parents, why did Veronia assess students’ interests in privacy or the governmental interest in invading it?

3. The Court also reasons that the outcome in Veronia did not turn on the danger of drug use in sports and the level of drug use suspected in the student body. Do you agree? Is the schools interest in searching here any greater or lesser than what existed in Veronia or T.L.O? Would the Court in Veronia have authorized drug testing program for clubs such as the chess team, drama club, math club, and French club (motivated by school’s premise that drugs would impair their performance)? Would Veronia have authorized a blanket testing policy for all activities if the only suspected drug users in the school were in the French Club? After the decision in Earls, what limits, if any, are there to schools’ authority to drug test students?

4. Where the school activity itself does not pose any special danger to students, such as sports, who is the more appropriate party to address a student’s drug use, the school or the parents? While a majority of the parents in numerous communities seem willing to cede that authority to schools, should their willingness be a basis for granting constitutional authority to schools given that some families object?

5. In Veronia, the Court focused on the communal undress, showering and other aspects of sports participation that lower student athlete’s expectations of privacy. Do the students in Earls have a greater expectation of privacy? If so, is it sufficiently high enough that it ought to alter the results of the balancing test?

6. State law may provide a greater degree of protection that federal law. The Supreme Court of Washington found no special needs exception for a school’s random drug testing of athletes and that in the absence of individualized suspicion the drug testing was a violation of students’ right to privacy. York v. Wahkiakum Sch. Dist. No. 200, 163

Wash. 2d 297 (2008). But see Hageman v. Goshen Cnty. Sch. Dist. No. 1, 256 P.3d 487 (Wy. 2011) (treating participation in extracurricular activities as consent to search).

Chapter 9

Religion in the Schools

D. ESTABLISHMENT CLAUSE LIMITS ON THE FUNDING OF PRIVATE RELIGIOUS EDUCATION

As the previous sections demonstrate, the Establishment Clause prohibits the public schools from leading religious exercises, engaging in religious instruction, or otherwise promoting religion. These are limits on the government’s vast powers of communication and persuasion, powers made more formidable by the power to compel school attendance. This section deals with a different government power: the power of the purse. A key feature of classical religious establishments was taxation in support of the church, and this issue was at the heart of debates about church-state relations in the founding era. Much of modern Establishment Clause doctrine has also been shaped by questions about using tax dollars to support religion, and the bulk of the case law has been about government efforts to subsidize private religious schools. A few basic points provide the context.

While the Establishment Clause works to limit the government’s religious communication, those limits do not apply to private schools.3 Private schools can promote religion in whatever ways they see fit, and most private schooling from colonial times to the present has been religious. Further, parents have a constitutional right to choose private religious (or secular) schools over public schools. Pierce v. Society of Sisters, 268 U.S. 510 (1925). Exercising the Pierce right, however, has a cost. Parents who pay for private religious education are not exempt from paying taxes that support the free system of public education, and thus some of them argue that they are unfairly “paying twice” for their children’s educations. (One response to this argument is that public schools are a public good that generates positive externalities for the entire community. Taxpayers with no children also support the public schools that they “do not use,” and they have no choice in the matter.) Whatever the merits of the “paying twice” charge, it creates a natural constituency supporting state funding of private education, and thus generates recurring questions about how far the state may go to accommodate that constituency. As you will see, the Court’s answers to those questions have changed dramatically over the last four decades.

The materials in this section deal with two questions. The historically more important question has been:

May the state choose to fund private religious schools without violating the Establishment Clause?

The section traces the history of the Supreme Court’s responses to this question, and its movement from a strong presumption against state aid to private religious education toward wide acceptance today. Today, acceptance is sufficiently complete that one must also ask a second question:

3<FN> Private schools are subject to state regulation and may receive significant state funding. These facts have been held insufficient to convert private schools into state actors. Rendell-Baker v. Kohn, 457 U.S. 830 (1982).

If the state chooses to fund private secular education, does it have to fund private religious education as well?

1. Everson: One Case, Two Principles

Everson v. Board of Education

330 U.S. 1 (1947)

MR. JUSTICE BLACK delivered the opinion of the Court.

A New Jersey statute authorizes its local school districts to make rules and contracts for the transportation of children to and from schools. The appellee, a township board of education, acting pursuant to this statute authorized reimbursement to parents of money expended by them for the bus transportation of their children on regular busses operated by the public transportation system. Part of this money was for the payment of transportation of some children in the community to Catholic parochial schools. These church schools give their students, in addition to secular education, regular religious instruction conforming to the religious tenets and modes of worship of the Catholic Faith. The superintendent of these schools is a Catholic priest.

Whether this New Jersey law is one respecting the “establishment of religion” requires an understanding of the meaning of that language, particularly with respect to the imposition of taxes. A large proportion of the early settlers of this country came here from Europe to escape the bondage of laws which compelled them to support and attend government favored churches. The centuries immediately before and contemporaneous with the colonization of America had been filled with turmoil, civil strife, and persecutions, generated in large part by established sects determined to maintain their absolute political and religious supremacy. With the power of government supporting them, at various times and places, Catholics had persecuted Protestants, Protestants had persecuted Catholics, Protestant sects had persecuted other Protestant sects, Catholics of one shade of belief had persecuted Catholics of another shade of belief, and all of these had from time to time persecuted Jews. In efforts to force loyalty to whatever religious group happened to be on top and in league with the government of a particular time and place, men and women had been fined, cast in jail, cruelly tortured, and killed. Among the offenses for which these punishments had been inflicted were such things as speaking disrespectfully of the views of ministers of government-established churches, nonattendance at those churches, expressions of non-belief in their doctrines, and failure to pay taxes and tithes to support them.

These practices of the old world were transplanted to and began to thrive in the soil of the

new America. The very charters granted by the English Crown to the individuals and companies designated to make the laws which would control the destinies of the colonials authorized these individuals and companies to erect religious establishments which all, whether believers or non-believers, would be required to support and attend. An exercise of this authority was accompanied by a repetition of many of the old world practices and persecutions.

These practices became so commonplace as to shock the freedom-loving colonials into a feeling of abhorrence. The imposition of taxes to pay ministers’ salaries and to build and maintain churches and church property aroused their indignation. It was these feelings which found expression in the First Amendment. No one locality and no one group throughout the Colonies can rightly be given entire credit for having aroused the sentiment that culminated in adoption of the Bill of Rights’ provisions embracing religious liberty. But Virginia, where the established church had achieved a dominant influence in political affairs and where many excesses attracted wide public attention, provided a great stimulus and able leadership for the movement. The people there, as elsewhere, reached the conviction that individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions, or to interfere with the beliefs of any religious individual or group.

The movement toward this end reached its dramatic climax in Virginia in 1785-86 when the Virginia legislative body was about to renew Virginia’s tax levy for the support of the established church. Thomas Jefferson and James Madison led the fight against this tax. Madison wrote his great Memorial and Remonstrance against the law.4 In it, he eloquently argued that a true religion did not need the support of law; that no person, either believer or non-believer, should be taxed to support a religious institution of any kind; that the best interest of a society required that the minds of men always be wholly free; and that cruel persecutions were the inevitable result of government-established religions. Madison’s Remonstrance received strong support throughout Virginia, and the Assembly postponed consideration of the proposed tax measure until its next session. When the proposal came up for consideration at that session, it not only died in committee, but the Assembly enacted the famous “Virginia Bill for Religious Liberty” originally written by Thomas Jefferson. The preamble to that Bill stated among other things that

Almighty God hath created the mind free; that all attempts to influence it by temporal punishments, or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion who being Lord both of body and mind, yet chose not to propagate it by coercions on either . . . ; that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of

4<FN> The entire text of Madison’s Memorial and Remonstrance is reprinted as an appendix to the Everson opinion, 330 U.S. at 63. — ED.

his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor, whose morals he would make his pattern.

The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between Church and State.”

We must consider the New Jersey statute in accordance with the foregoing limitations imposed by the First Amendment. New Jersey cannot consistently with the “establishment of religion” clause of the First Amendment contribute tax-raised funds to the support of an institution which teaches the tenets and faith of any church. On the other hand, other language of the amendment commands that New Jersey cannot hamper its citizens in the free exercise of their own religion. Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation. While we do not mean to intimate that a state could not provide transportation only to children attending public schools, we must be careful, in protecting the citizens of New Jersey against state-established churches, to be sure that we do not inadvertently prohibit New Jersey from extending its general State law benefits to all its citizens without regard to their religious belief.

Measured by these standards, we cannot say that the First Amendment prohibits New Jersey from spending tax-raised funds to pay the bus fares of parochial school pupils as a part of a general program under which it pays the fares of pupils attending public and other schools. It is undoubtedly true that children are helped to get to church schools. There is even a possibility that some of the children might not be sent to the church schools if the parents were compelled to pay their children’s bus fares out of their own pockets when transportation to a public school would have been paid for by the State. [The same could be said if the state refused to deploy police at street crossings near parochial schools. Some] parents might refuse to risk their children to the serious danger of traffic accidents going to and from parochial schools, the approaches to which were not protected by policemen. Similarly, parents might be reluctant to permit their children to attend schools which the state had cut off from such general government services as ordinary

police and fire protection, connections for sewage disposal, public highways and sidewalks. Of course, cutting off church schools from these services, so separate and so indisputably marked off from the religious function, would make it far more difficult for the schools to operate. But such is obviously not the purpose of the First Amendment. That Amendment requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions, than it is to favor them.

The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here.

MR. JUSTICE JACKSON, dissenting.

The Court’s opinion marshals every argument in favor of state aid and puts the case in its most favorable light, but much of its reasoning confirms my conclusions that there are no good grounds upon which to support the present legislation. In fact, the undertones of the opinion, advocating complete and uncompromising separation of Church from State, seem utterly discordant with its conclusion yielding support to their commingling in educational matters. The case which irresistibly comes to mind as the most fitting precedent is that of Julia who, according to Byron’s reports, “whispering ‘I will ne’er consent,’-consented.”

II

Whether the taxpayer constitutionally can be made to contribute aid to parents of students because of their attendance at parochial schools depends upon the nature of those schools and their relation to the Church. It is no exaggeration to say that the whole historic conflict in temporal policy between the Catholic Church and non-Catholics comes to a focus in their respective school policies. The Roman Catholic Church, counseled by experience in many ages and many lands and with all sorts and conditions of men, takes what, from the viewpoint of its own progress and the success of its mission, is a wise estimate of the importance of education to religion. It does not leave the individual to pick up religion by chance. It relies on early and indelible indoctrination in the faith and order of the Church by the word and example of persons consecrated to the task.

I should be surprised if any Catholic would deny that the parochial school is a vital, if not the most vital, part of the Roman Catholic Church. If put to the choice, that venerable institution, I should expect, would forego its whole service for mature persons before it would give up education of the young, and it would be a wise choice. Its growth and cohesion, discipline and loyalty, spring from its schools. Catholic education is the rock on which the whole structure rests, and to render tax aid to its Church school is indistinguishable to me from rendering the same aid to the Church itself.

MR. JUSTICE RUTLEDGE, with whom MR. JUSTICE FRANKFURTER, MR. JUSTICE JACKSON, and MR. JUSTICE BURTON agree, dissenting.

Believers of all faiths, and others who do not express their feeling toward ultimate issues of existence in any creedal form, pay the New Jersey tax. When the money so raised is used to pay for transportation to religious schools, the Catholic taxpayer to the extent of his proportionate share pays for the transportation of Lutheran, Jewish and otherwise religiously affiliated children to receive their non-Catholic religious instruction. Their parents likewise pay proportionately for the transportation of Catholic children to receive Catholic instruction. Each thus contributes to “the propagation of opinions which he disbelieves” in so far as their religious differ, as do others who accept no creed without regard to those differences. Each thus pays taxes also to support the teaching of his own religion, an exaction equally forbidden since it denies “the comfortable liberty” of giving one’s contribution to the particular agency of instruction he approves.

New Jersey’s action therefore exactly fits the type of exaction and the kind of evil at which Madison and Jefferson struck. Under the test they framed it cannot be said that the cost of transportation is no part of the cost of education or of the religious instruction given.

For me, therefore, the feat is impossible to select so indispensable an item from the composite of total costs, and characterize it as not aiding, contributing to, promoting or sustaining the propagation of beliefs which it is the very end of all to bring about. Payment of transportation is no more, nor is it any the less essential to education, whether religious or secular, than payment for tuitions, for teachers’ salaries, for buildings, equipment and necessary materials. Nor is it any the less directly related, in a school giving religious instruction, to the primary religious objective all those essential items of cost are intended to achieve. No rational line can be drawn between payment for such larger, but not more necessary, items and payment for transportation. The only line that can be so drawn is one between more dollars and less. Certainly in this realm such a line can be no valid constitutional measure.

Notes and Questions

1. The majority and the dissent differ on whether the use of tax money in Everson is relevantly like the Virginia assessment bill that Madison opposed. How are these two uses of tax dollars alike? How are they different? Do you find the similarities or the differences more relevant?

In comparing the two programs, you might consider the following questions, all of which became relevant in the post-Everson case law: Did the aid have a secular purpose or a purpose of supporting religion? Was it distributed on the basis of neutral (i.e., nonreligious) criteria? Did the aid go to support religious instruction? Did the aid go directly to religious institutions or individuals?

2. According to the Everson opinions, what are the harms that might result from government aid to private religious schools? The answers to this question illuminate the Court’s view of the point and purpose of the Establishment Clause.

3. Baselines. Is the question of whether bus fare reimbursements “aid religion” a question of baselines? If we compare the situations of private school parents before and after the reimbursements were offered, the reimbursements appear to be “aid” because they make it (marginally) easier for parents to send their children to private schools. If we compare the private school parents to public school parents whose transportation costs are already subsidized, the reimbursements appear not to aid the private school parents, but to put them on the same footing as everyone else.

***

The modern Establishment Clause begins with Everson, and the case contains the seeds of all the moves that would define the Court’s funding jurisprudence for the next 60 years. As Professor Laycock explains, that jurisprudence has been a battle for supremacy between a no-aid principle and a nondiscrimination principle. Douglas Laycock, Why the Supreme Court Changed Its Mind About Government Aid to Religious Institutions: It’s a Lot More Than Just Republican Appointments, 2008 B.Y.U. L. REV. 275. All nine Justices in Everson agreed with Justice Black’s vision of a wall of separation that would prevent any government aid from flowing to religious institutions: “No tax in any amount, large or small, can be levied to support any religious activities or institutions.” Everson, 330 U.S. at 16. This no-aid principle dominated the opinions rhetorically, and the four dissenting Justices thought it obvious that using tax dollars to pay for transportation to religious schools violated that principle. Nevertheless, the majority upheld the transportation reimbursements for parochial school parents by appealing to the nondiscrimination principle: “[the state] cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.” Id. Transportation to school was a public welfare benefit that could be made available to all (like police and fire protection). The Court has spent the years since Everson working out whether the no-aid and nondiscrimination principles can peacefully (and coherently) coexist.

In addition to setting the stage for future doctrinal development, Everson has also proven influential in looking to the past to find the meaning of the Establishment Clause. Before moving forward from Everson, a brief look back at the history it recounts (and some of the history it omits) is instructive.

a. Looking Back from Everson

i. The Virginia Assessment Controversy

As Justice Black’s majority opinion emphasizes, taxation in support of religious institutions was a key feature of classical religious establishments like the colonial-era Church of England. When the American Revolution began, 9 of the original 13 states had religious establishments of varying natures. The process of disestablishment took place state by state and was completed by 1833 when Massachusetts abandoned its establishment of the Congregational Church. Everson takes Virginia’s experience as uniquely authoritative evidence of the meaning of the Establishment Clause, a move that some have questioned. See, e.g., John C. Jeffries, Jr. & James E. Ryan, A Political History of the Establishment Clause, 100 MICH. L. REV. 279, 286 (2001) (“Both majority and dissent treated the history of the United States as if it were the history of Virginia.”); see also Carl H. Esbeck, Uses and Abuses of Textualism and Originalism in Establishment Clause Interpretation, 2011 UTAH L. REV. 489, 490-492.

To the (debatable) extent that Madison’s views and the Virginia experience generally are representative of the thinking behind the Establishment Clause, the case for the dominance of the no-aid principle appears strong. But consider these remarks of Professor Laycock:

The no-aid principle derived from eighteenth-century debates over earmarked taxes levied exclusively for the funding of churches. In an era with few public welfare benefits, these taxes funded purely religious programs and funded those programs preferentially. As applied to that dispute, the two principles did not conflict, and the no-aid principle served religious liberty. No-aid protected citizens from being forced to contribute to churches; it protected the churches from financial dependence on the government; it prevented discrimination in favor of religion; and it did not discriminate against religion.

The modern cases are very different. From Everson forward, the cases have involved equal government funding of religious and secular alternatives. And in all these modern cases, government money funded secular services in a religious environment, not purely religious programs. In that context, the Court had to choose between its two principles: either government money would flow to religious institutions, or students in religious schools and patients in religious hospitals would forfeit instruction or services that the state would have funded if the individuals had chosen a secular school or hospital instead.

Laycock, supra, at 276.

ii. “Common Schools” and Parochial Schools in the Nineteenth Century

In emphasizing the no-aid principle (in theory, if not result), the Everson Court constitutionalized skepticism about financing private religious education that traces its roots to the rise of the common school during the nineteenth century. That history is recounted above in Section A.1 of this chapter. To recap the earlier account in a nutshell, Catholics created their own

system of parochial schools as an alternative to the de facto Protestantism of the public schools and then argued that if the “public” schools were to remain Protestant, the state had an obligation to fund private Catholic schools as well. Backlash against such requests made “no public money for nonpublic schools” a popular political position in the mid-nineteenth century without any help from the federal Establishment Clause.

After the Civil War, opposition to private school funding became a key component of national Republican politics. In 1875, Representative James G. Blaine proposed a constitutional amendment that read:

No State shall make any law respecting an establishment of religion or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect, nor shall any money so raised or lands so devoted be divided between religious sects or denominations.

The Senate added language to Blaine’s proposal to clarify that the amendment “shall not be construed to prohibit the reading of the Bible in any school or institution.” As Professor McConnell notes, the Blaine amendment would have constitutionalized the common school vision of “nonsectarian Protestantism” in the public schools coupled with a ban on public funding of parochial schools. Michael W. McConnell, Education Disestablishment: Why Democratic Values Are Ill-Served by Democratic Control of Schooling, in MORAL AND POLITICAL EDUCATION 112 (Stephen Macedo & Yael Tamir eds., 2002). The Blaine amendment passed the House but failed to achieve the necessary two-thirds vote in the Senate. In the wake of the Blaine amendment’s failure, however, more than half the states adopted “Baby Blaine” amendments to their state constitutions, which ban public support of private religious schools.

The story could be extended into the early twentieth century and told in much greater detail, but enough has been said to cast some light on the pre-Everson history of opposition to the funding of religious schools. Professors Jeffries and Ryan sum up the story this way:

<EXT> [T]he ban against aid to religious schools was supported by the great bulk of the Protestant faithful. With few exceptions, Protestant denominations, churches, and believers vigorously opposed aid to religious schools. For many Protestant denominations, this position followed naturally from the circumstances of their founding. It was strongly reinforced, however, by hostility to Roman Catholics and the challenge they posed to the Protestant hegemony, which prevailed throughout the nineteenth and early twentieth centuries. In its political origins and constituencies, the ban against aid to religious schools aimed not only to prevent an establishment of religion but also to maintain one.

Jeffries & Ryan, supra, at 282.

b. Looking Forward from Everson

With some handle on the history that informed Everson, we are now in a position to look at the story of Everson going forward. The Court has decided far too many cases on aid to private religious schools to summarize or even cite them all. Schematically, the story can be divided into three periods. From 1947 to 1971, the Court decided only two cases involving aid to private religious schools, Everson and Board of Education v. Allen, 392 U.S. 236 (1968). Both cases used the language of separation but approved the aid in question: bus rides in Everson, loans of secular textbooks in Allen. From 1971 to 1985, the Court gave precedence to the no-aid principle (with limited exceptions). From 1986 to the present, the Court has reversed course, increasingly favoring the nondiscrimination principle and arranging its doctrine around a distinction between direct and indirect aid (a.k.a. aid distributed through mechanisms of private choice).

2. The Rise of the Lemon Test, 1971 to 1985: No-Aid Separationism and the Prohibition on Entanglement

By the early 1970s, the politics of aid to religious schools had changed in an important respect. Catholic schools were experiencing a financial crisis. States with large parochial school enrollments would have faced financial crises of their own if the parochial schools had closed their doors and the state had to suddenly absorb all these students into the public schools. Accordingly, state governments proposed a variety of programs designed to help private religious schools survive. (State aid programs were facially directed at all nonpublic schools, but since most nonpublic schools at the time were religious and Catholic, the label “Parochaid” was sometimes used.) These programs produced a steady docket of aid-to-religious-schools cases for the Court.

The earliest cases established the dominance of the no-aid principle, at least in the context of primary and secondary education. Lemon v. Kurtzman, 403 U.S. 602 (1971), struck down Pennsylvania and Rhode Island plans to supplement the salaries of private school teachers of secular subjects. Committee for Public Education v. Nyquist, 413 U.S. 756 (1973), invalidated a New York program that included grants for facilities maintenance and repair to nonpublic schools as well as tuition grants and tax credits for private school families. Lemon announced the (in)famous three-prong test that bears its name: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.’” 403 U.S. at 612-613. The wording of the test leaves a good deal open, but the early cases made some of the key features of its application clear. From Lemon to the present day, the secular purpose prong has had little relevance in funding or aid cases. Courts have readily concluded that the state had a valid secular purpose of promoting education. The real questions

have been about the meanings of the primary effect and entanglement prongs.

a. Primary Effects

The language of “primary effect” could have been read very permissively. As the states recognized private school attendance as satisfying their compulsory education laws, the Court could in theory have assumed that the primary effect of aid to private schools was to further the secular educational goals of the state. None of the programs considered bore more than a small share of the total cost of private religious education. At the other extreme, the Court could have followed the logic of Justice Rutledge’s Everson dissent by holding that any aid to religious schools furthered religious instruction by freeing up resources. Instead, the Court tried to steer a course between these extremes. In practice, the primary effect test became an inquiry into whether any amount of state aid flowed to support religious activities or instruction. In Nyquist, for example, the Court reasoned that the maintenance grants were invalid because “[n]othing in the statute . . . bars a qualifying school from paying out of state funds the salaries of employees who maintain the school chapel, or the cost of renovating classrooms in which religion is taught . . . or the cost of heating and lighting those same facilities.” 413 U.S. at 774.

b. The Entanglement Prong and Catch-22

In the no-aid funding cases, the Court mainly used the entanglement prong to address excessive government supervision of religious activities. Consider the Pennsylvania and Rhode Island programs at issue in Lemon. Paying the salaries of teachers engaged in religious instruction would clearly violate the Establishment Clause. Accordingly, the salary supplements considered in Lemon were limited to teachers of secular subjects who used the same teaching materials used in the public schools. It might seem that such restrictions would save the program, but the Court made three additional assumptions that precluded this result. First, the Court reasoned that in the atmosphere of parochial schools — an atmosphere where “[r]eligious authority necessarily pervades” — even teachers of secular subjects who took constitutional restrictions seriously would find it difficult to avoid mixing religious with secular instruction. Second, this meant it would be difficult for the state to know subsidized teachers were not engaging in religious instruction: “The State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion.” Third, the necessary certainty could only be achieved through a “comprehensive, discriminating, and continuing state surveillance.” This comprehensive state surveillance of the teaching in private religious schools would itself foster an excessive government entanglement with religion. The Court later described Lemon’s interpretations of the primary effect and entanglement prongs as creating a Catch-22 situation. Bowen v. Kendrick, 487 U.S. 589, 615 (1988). Within religious schools, trusting teachers to refrain from religious instruction violates the primary effects prong; monitoring them to ensure compliance violates the entanglement prong.

c. Religious Universities versus “Pervasively Sectarian” Parochial Schools

Lemon’s Catch-22 reasoning suggests that for most kinds of aid, it would be very difficult to identify safeguards strong enough to satisfy the primary effects prong yet not so strong as to require comprehensive monitoring that would violate the entanglement prong. The analysis unfolds differently, however, in cases involving religious colleges and universities. In Tilton v. Richardson, 403 U.S. 672 (1971), decided the same day as Lemon, the Court largely upheld5 the inclusion of religious colleges and universities within a general federal program of higher education construction grants. Buildings funded under the grants were restricted to secular uses, but the question arose as to why this restriction would not entail comprehensive (and thus “entangling”) monitoring efforts of the sort condemned in Lemon. A four-vote plurality opinion reviewed evidence that the four Catholic universities at issue in the case operated very much like nonreligious universities and then explained that “[s]ince religious indoctrination is not a substantial purpose or activity of these church-related colleges and universities, there is less likelihood than in primary and secondary schools that religion will permeate the area of secular education. . . . Correspondingly, the necessity for intensive government surveillance is diminished and the resulting entanglements between government and religion lessened.” Id. at 687 (plurality opinion). The reasoning of the Tilton plurality appeared in a majority opinion two years later in Hunt v. McNair, 413 U.S. 734 (1973), a case decided on the same day as Nyquist that involved a bond program designed to aid university building construction.

Cases like Tilton and Hunt signaled that programs of “secular aid” to religious colleges and universities were far more likely to be upheld than comparable programs in religious primary and secondary schools. The simplest explanation for this difference was that originally given by the Tilton plurality: religion normally “permeates the area of secular education” in primary and secondary religious schools; they are “pervasively sectarian.” In contrast, religion can be and generally is separated from religious instruction in religious universities; they are probably not “pervasively sectarian,” though the Court left open the possibility that some colleges and universities might warrant the pervasively sectarian label. Whether an institution is labeled as pervasively sectarian, then, becomes a key factor — perhaps the key factor — in whether targeted secular aid to that institution is permissible. Is it appropriate for courts to judge how pervasively religious particular institutions might be?

d. Counting Angels on the Head of a Pin

The interpretations of Lemon described above placed the no-aid principle in ascendancy (especially with regard to primary and secondary religious schools). It has been suggested that the Court’s commitment to no-aid separationism can partly be explained as the product of political forces. In the early 1970s, aid to private schools was seen as a Catholic issue and was still opposed by most Protestants and secular elites. Further, there were worries that aid to religious schools might work to facilitate white flight from the public schools during a period 5<FN> The Court unanimously invalidated an aspect of the program that would have allowed restrictions on the religious use of buildings constructed with government grants to lapse after a 20-year period.

when the Court was finally getting serious about desegregation. See generally Jeffries & Ryan, supra; Laycock, supra. Interestingly, the Court’s commitment to the no-aid principle was never complete even in the 1970s and early 1980s. Instead of invalidating aid to primary and secondary religious schools across the board, shifting majorities of the Court occasionally upheld aid by drawing fine distinctions based on the character of the aid and its potential for diversion to religious uses. This case law satisfied no one, and law review articles mocking the Court became a cottage industry. A representative article from 1992 described the Court’s school aid jurisprudence this way:

With doctrine in such chaos, the Warren and Burger Courts were free to reach almost any result in almost any case. It is constitutional for the government to provide religious school pupils with books,6 but not with maps;7 with bus rides to religious schools,8 but not from school to a museum on a field trip;9 with cash to pay for state-mandated standardized tests,10 but not to pay for safety-related maintenance.11 It is a mess.

Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. CHI. L. REV. 115, 120 (1992).

6 Board of Education v. Allen, 392 U.S. 236, 238 (1968).7 Wolman v. Walter, 433 U.S. 229, 249-51 (1977).8 Everson v. Board of Education, 330 U.S. 1, 17 (1947).9 Committee for Pub. Educ. and Religious Liberty v. Regan, 444 U.S. 646, 653-54 (1980).10 Nyquist, 413 U.S. at 774-80.11 School District of Grand Rapids v. Ball, 473 U.S. 373, 382 (1985).