Kinney Kinmon Lau, a Minor by and Through Mrs. Kam Wai Lau, His Guardian Ad Litem v. Alan H. Nichols, President

483 F.2d 791 Kinney Kinmon LAU, a Minor by and through Mrs. Kam Wai Lau, his Guardian ad Litem et al., Plaintiffs-Appellants. v. Alan H. NICHOLS, President et al., Defendants-Appellees. * No. 26155. United States Court of Appeals, Ninth Circuit. Jan. 8, 1973. Rehearing En Banc Denied June 18, 1973. Edward H. Steinman (argued), of Youth Law Center, San Francisco, Cal., for plaintiffs-appellants. Marian Wright Edelman, Director, Roger L. Rice, Staff Atty., Center for Law and Education, Harvard University, Cambridge, Mass., amicus curiae for plaintiffs-appellants. Thomas M. O'Conner, City Atty. (argued), Raymond D. Williamson, Deputy City Atty., San Francisco, Cal., for defendants-appellees. John D. Leshy, Atty. (argued), James L. Browning, U. S. Atty., San Francisco, Cal., David D. Gregory, Joseph B. Scott, Brian K. Landsberg, Attys., David L. Norman, Deputy Asst. Atty. Gen., Dept. of Justice, Washington, D. C., Jerris Leonard, Asst. Atty. Gen., Washington, D. C., amicus curiae for appellee. Marian Wright Edelman, Director, Roger L. Rice, Staff Atty., Cambridge, Mass., amicus curiae for the appellant. Before CHAMBERS and TRASK, Circuit Judges, and HILL, ** District Judge. TRASK,…

This appeal is from the district court’s adverse disposition of a civil rights class action filed by appellants to compel the San Francisco Unified School District to provide all non-English-speaking Chinese students attending District schools with bilingual compensatory education in the English language. The defendants-appellees are the superintendent and members of the Board of Education of the School District, and members of the Board of Supervisors of the City and County of San Francisco.

Two classes of non-English-speaking Chinese pupils are represented in this action. The first class, composed of 1,790 of the 2,856 Chinese-speaking students in the District who admittedly need special instruction in English, receive no such help at all. The second class of 1,066 Chinese-speaking students receive compensatory education, 633 on a *793 part-time (one hour per day) basis, and 433 on a full-time (six hours per day) basis. Little more than one-third of the 59 teachers involved in providing this special instruction are fluent in both English and Chinese, and both bilingual and English-as-a-Second Language (ESL) methods are used. As of September 1969, there were approximately…

(dissenting) :

I dissent.

In my view, the majority’s construction of the Equal Protection Clause is too narrow. They fail to assign sufficient value and importance to the rights plaintiffs assert in this case. A child’s right to an equal educational opportuni *801 ty is of the greatest importance and should not be abridged without persuasive justification. No such justification was presented to the trial court because that court held, at the threshold, that the facts presented by plaintiffs failed to make out a claim upon which relief could be granted under the Equal Protection Clause. While apparently conceding that plaintiffs have suffered a disadvantage in gaining an education as against English-speaking pupils, the trial court held that the disadvantage did not come within the scope of the Equal Protection Clause. The majority agree with that basic holding.

I would reverse the judgment and remand the case to the trial court for the taking of further evidence on defendants’ justification, if any, for their failure to provide the bilingual teaching which plaintiffs seek. The facts already adduced show, in my opinion, that the San Francisco School System withholds from a…