(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 readily identifiable segment of an ethnic minority the minimum English language instruction necessary for that segment to participate in the educational processes with any chance of success. I view such a deprivation as being prima facie within the ambit of the Equal Protection Clause.

The plaintiffs, and the class they represent, are grade school children of Chinese parents who have recently immigrated to this country. The law requires these children to attend school; so, they come. But they enter the San Francisco School System unable to speak or understand the English language. All the instruction they receive is in English as are all of the books and all of the visual materials which are used. As •the amicus brief, from the Harvard University Center for Law and Education puts it, education for these children becomes “mere physical presence as audience to a strange play which they do not understand.” These amici correctly stress the fact that the essence of education is communication: a small child can profit from his education only when he is able to understand the instruction, ask and answer questions, and speak with his classmates and teachers. When he cannot understand the language employed in the school, he cannot be said to have an educational opportunity in any sense. As against his English-speaking classmates, his educational opportunity is manifestly unequal even though there is an illusion of equality since the facilities, books, and teachers made available to him are the same as those made available to the rest of the students. It seems clear to me that a pupil knowing only a foreign language cannot be said to have an educational opportunity equal to his fellow students unless and until he acquires some minimal facility in the English language.

Interestingly enough, defendants themselves appear to recognize the seriousness of the problem. Two particularly forceful quotations from official publications of the San Francisco Unified School District are set forth below.

The majority misapprehended the nature of the relief sought in this case. They characterize plaintiffs as seeking “bilingual education.” Plaintiffs have carefully and repeatedly abjured any such objective. As the complaint clearly states (Clerk’s Transcript, pp. 23, 24) and as plaintiffs’ briefs in the trial court (Clerk’s Transcript, p. 162) and in this Court re-emphasize, plaintiffs seek only that “defendants . . . provide special instruction in English and that such instruction ... be taught by bilingual teachers.” Appellant’s Reply Brief, p. 12. When the majority emphasize that this is an “English-speaking nation” and that English is the “language of instruction” in all public schools, they set up a straw man which they have clothed in irrelevant truisms. Plaintiffs do not seek to be taught in Chinese, in whole or in part. They seek only to learn English. They claim, with apparent justification, that they cannot learn English effectively unless it is taught to them by persons who have a facility in the only language they understand, i. e., Chinese. It seems abundantly clear that as soon as the plaintiffs have achieved enough proficiency in English to understand their teachers and classmates and participate somewhat in the course of instruction, they will expect no further Chinese to be uttered in their classes. They do not seek instruction in the Chinese language or to be taught anything in Chinese except how to speak English.

As stated, I am of the opinion that the facts (which are all stipulated to) reflect, prima facie, an impermissible infringement of plaintiffs’ rights under the Equal Protection Clause. Plaintiffs have shown (1) that they do not have the same opportunity as others and (2) that the group so deprived is an indenti-fiable segment of an ethnic minority.

As I understand the relevant legal principles, a prima facie denial of equal protection occurs whenever the method of classification with respect to the enjoyment or non-enjoyment of a governmental right, opportunity or obligation is “suspect.” A classification is suspect whenever government action is linked with comparative disadvantage to members of a certain type of group. That group may be, inter alia, a religious, ethnic or political group or a group identifiable in terms of the members’ sex or relative poverty. 1 2**Such classifications are suspect (and prima facie invalid) because these factors, i. e., religion, race, etc., are, except in extraordinary and rare instances, irrelevant and improper criteria in determining the scope or application of government rights, benefits, opportunities and obligations. They are suspect because, as one authority puts it, it is rarely the case that “proper governmental objectives . . . require for their achievement the carving out, for relatively disadvantageous treatment, of a class defined by [their racial or ethnic composition].” Michelman, The Supreme Court 1968 Term — Forward: On Protecting the Poor Through the Fourteenth Amendment, 83 Har.L.Rev. 7, 21 (1969). 2

*803 When government action particularly affects or burdens a given class or group, it is often called “discrimination.” It is important to remember that no intent to discriminate is required in order to invoke the Equal Protection Clause. One can deal with an apparently neutral and non-discriminatory statute or scheme which is applied or enforced without any intent to discriminate (or even without knowledge that the effect is a discriminatory one) and still run afoul of the Equal Protection Clause if illegal discrimination in fact results. 3 When such action particularly affects or burdens one of the classes or groups mentioned above, it is presumptively illegal discrimination. However, not all discrimination is illegal. Discrimination which is apparently illegal may be excused by a showing that the discrimination or classification is justified by overriding governmental objectives and necessities.

As Judge Feinberg, in Chance v. Board of Examiners, 458 F.2d 1167 (2nd Cir. 1972), states: “[A] harsh racial [or ethnic] impact, even if unintended, amounts to an invidious de facto classification that cannot be ignored or answered with a shrug. At the very least, the Constitution requires that state action spawning such a classification ‘be justified by legitimate state considerations.’ ” 458 F.2d at 1175.

The strength of the justification needed to overcome a prima facie violation of the Equal Protection Clause will vary depending on the nature of the right involved. When the right involved is a fundamental one, only a compelling state interest will justify its abridgment, and the discrimination must be necessary to the achievement of the overriding governmental interest. See, e. g., Shapiro v. Thompson, 394 U.S. 618 , 89 S.Ct. 1322 , 22 L.Ed.2d 600 (1968); Dunn v. Blumstein, 405 U.S. 330 , 92 S.Ct. 995 , 31 L.Ed.2d 274 (1972). Cf. Dillenburg v. Kramer, 469 F.2d 1222 (9th Cir. 1972). When the right involved is less fundamental, a less compelling reason may suffice to justify its abridgment, and the discrimination may be permitted as rationally related to the achievement of an overriding governmental aim. See, e. g., Dandridge v. Williams, 397 U.S. 471 , 90 S.Ct. 1153 , 25 L.Ed.2d 491 (1970).

Turning now to the rights involved in this case, it cannot be doubted that the right to equal educational opportunity is one of the most vital and fundamental of all of the rights enjoyed by Americans. The Supreme Court, in Brown v. Board of Education, characterized it as “perhaps the most important function of state and local governments” and observed that “(i)n these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied *804 the opportunity of an education.” 347 U.S. at 493, 74 S.Ct. at 691.

Thus, when defendants are given the opportunity to present their justification, their showing would necessarily be required to be persuasive in the extreme. The present record certainly shows no such justification. At best, it indicates that the defendant school board has made some effort to remedy the language deficiency of some of the Chinese-speaking students. That partial effort is not a full justification. It merely goes to reduce the dimensions of the problem.

The defendants could be allowed to show, in the resumed trial, the limits of their resources, the conflicting demands made upon those resources, and their judgment as to the priorities to be applied to those resources and demands. And the court would then decide whether the defendants are justified in their refusal to provide bilingual instruction for the teaching of English to all of the Chinese-speaking pupils who require it.

The majority apparently foreclose plaintiffs from relief under the Equal Protection Clause because their language deficiency was not “caused directly or indirectly by any state action.” In other words, the majority see the Equal Protection Clause as available only when the inequality or discrimination results from some present intent to discriminate or from some past or historical governmental discriminatory conduct for which the state can be blamed. The majority cite no previous decision which so limits the scope of the Equal Protection Clause. It is true that most, if not all, of the decided eases requiring remedial action to redress educational deprivation arose where there was a history of unequal treatment by the state of the class involved. But none of the opinions hold that historical disadvantage attributable to the state is a sine qua non for obtaining relief.

In another group of cases it is clear that relief is granted under the Equal Protection Clause where no historical blame can be placed upon the state. These cases deal with the obligation of the state to provide special services to criminal defendants who are unable to pay for those services themselves. Some of these Supreme Court opinions on the subject are collected in the footnote. 4 These cases stand for the proposition that a person’s poverty may not be the basis for denying him the same facilities and aids in combatting criminal charges against him as are enjoyed by those who can pay for such facilities and aids with their own funds. Affirmative state action is required to redress the inequality, and the state’s duty to redress is imposed without reference to whether or not it can be said that the state in some way caused the inequality in the first place. The state’s duty to take affirmative action does not arise because it can be said that the state is primarily responsible for making a poor man poor. Rather, the duty arises because the state must put justice within reach of every man if the state chooses to provide a system of criminal justice at all. Similarly, when the state chooses to provide education and makes attendance at school compulsory, it has a duty to grant to each child an equal educational opportunity and a duty to avoid illegal discrimination. That duty does not arise because of the existence of either a present intent to discriminate or past historical discrimination. Rather, the duty arises because once the state choos *805 es to put itself in the business of educating children, it must give each child the best education its resources and priorities allow.

One last word. The plaintiffs in this case are small, Chinese-speaking children who sue on their own behalf and on behalf of others similarly situated. The majority describe the plight of these children as being “the result of deficiencies created by the appellants themselves in failing to learn the English language.” To ascribe some fault to a grade school child because of his “fail-, ing to learn the English language” seems both callous and inaccurate. If anyone can be blamed for the language deficiencies of these children, it is their parents and not the children themselves. Even if the parents can be faulted (and in many cases they cannot, since they themselves are newly arrived in a strange land and in their struggle for survival may have had neither the time nor opportunity to study any English), it is one of the keystones of our culture and our law that the sins of the fathers are not to be visited upon the children.

ON REJECTION OF EN BANC CONSIDERATION ORDER

On request of a member of the court who was not a member of the panel, proceedings were commenced in February 1973 to obtain a vote of the court to consider the case en banc.

All members of the court in active service have considered the request for en banc consideration. A majority of the court has rejected the request.

Judge Hufstedler, with whom Judge Ely concurs, files an opinion dissenting from the rejection of en bane consideration.

Judge Trask, with whom Judge Wright concurs, files a special con-* curring opinion.

HUFSTEDLER, Circuit Judge, with whom Judge Ely concurs, dissenting from the denial of hearing en banc:

I dissent from the rejection of en banc consideration. The case presents unusually sensitive and important constitutional issues. The majority opinion states principles of statutory and constitutional law that cannot be reconciled with controlling authority. Unless these principles are corrected now, the protections of the Civil Rights Acts will be seriously impaired in this Circuit.

The majority opinion correctly identifies the two groups of children who brought this action: (1) 1,790 Chinese school children who speak no English and are taught none, and (2) 1,066 Chinese children who speak no English and who receive some kind of remedial instruction in English. The majority’s characterization of the relief sought as “bilingual education” is misleading. The children do not seek to have their classes taught in both English and Chinese. All they ask is that they receive instruction in the English language.

Access to education offered by the ' public schools is completely foreclosed to these children who cannot comprehend any of it. They are functionally deaf and mute. Their plight is not a matter of constitutional concern, according to the majority opinion, because no state action or invidious discrimination is present. The majority opinion says that state action is absent because the state did not directly or indirectly cause the children’s “language deficiency”, and that discrimination is not invidious because the state offers the same instruction to all childen. Both premises are wrong.

The state does not cause children to start school speaking only Chinese. Neither does a state cause children to have black skin rather than white nor cause a person charged with a crime to be indigent rather than rich. State action *806 depends upon state responses to differences otherwise created.

These Chinese children are not separated from their English-speaking classmates by state-erected walls of brick and mortar (Cf. Brown v. Board of Education (1954) 347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 ), but the language barrier, which the state helps to maintain, insulates the children from their classmates as effectively as any physical bulwarks. Indeed, these children are more isolated from equal educational opportunity than were those physically segregated blacks in Brown ; these children cannot communicate at all with their classmates or their teachers.

The state’s response to the non-English speaking Chinese children is not passive. The state compels the children to attend school (Cal.Educ.Code § 12101), mandates English as the basic language of instruction (Cal.Educ.Code § 71), 1 and imposes mastery of English as a prerequisite to graduation from public high school (Cal.Educ.Code § 8573). 2 The pervasive involvement of the state with the very language problem challenged forbids the majority’s finding of no state action. (E. g., Bullock v. Carter (1972) 405 U.S. 134 , 92 S.Ct. 849 , 31 L.Ed.2d 92 ; Burton v. Wilmington Parking Authority (1961) 365 U.S. 715 , 81 S.Ct. 856 , 6 L.Ed.2d 45 ; Shelley v. Kraemer (1948) 334 U.S. 1 , 68 S.Ct. 836 , 92 L.Ed. 1161 ; Nixon v. Condon (1932) 286 U.S. 73 , 52 S.Ct. 484 , 76 L. Ed. 984 ).

The majority opinion concedes that the children who speak no English receive no education and those who are given some help in English cannot receive the same education as their English speaking classmates. In short, discrimination is admitted. Discriminatory treatment is not constitutionally impermissible, they say, because all children are offered the same educational fare, i. e., equal treatment of unequals satisfies the demands of equal protection. The Equal Protection Clause is not so feeble. Invidious discrimination is not washed away because the able bodied and the paraplegic are given the same state command to walk.

The majority holdings are contrary to a cascade of Supreme Court authority. Although the majority opinion acknowledges the existence of many of these cases, it attempts to circumvent them by reducing state action concepts to levels unacceptable for a hundred years and by drawing distinctions to confine the prior cases to an uncharted jurisprudential territory remote from the San Francisco schools. The great equal protection cas *807 es cannot be shrivelled to the size the majority opinion has prescribed.

Even if the strict scrutiny test were inapplicable, the Chinese children made out a prima facie case. A claim of invidious discrimination against those who could speak and write only Chinese came to the Supreme Court almost 50 years ago in Yu Cong Eng v. Trinidad (1926) 271 U.S. 500 , 49 S.Ct. 619 , 70 L.Ed. 1059 . The Philippines had enacted a statute requiring business account books to be kept solely in English, Spanish, or any local dialect. The petitioner, a Chinese merchant who could neither speak nor write any language except Chinese challenged the statute on due process and equal protection grounds. The Philippine statute, like the California statutes here involved, was facially neutral. Mr. Chief Justice Taft, speaking for a unanimous court, struck down the statute as a denial of equal protection. 3

The classifications that are relevant, to our equal protection problem in this case can be defined in a number of ways. It is unnecessary to describe more than three of them to structure the constitutional inquiry. The narrowest classification created by state action is this: (1) all Chinese school children in the district who can speak English versus (2) all Chinese school children in the district who cannot speak English and are taught no English, represented by a group of 1,-790 plaintiffs. Children in the first class have full access to education; those in the second have none. The sole difference between them is linguistic. Is the denial of instruction to learn English— and hence to learn anything — rationally related to any legitimate state end ? The state offers no rationale, and I am unable to discern any.

A second classification is: (1) all Chinese school children who do not speak English and are taught none versus (2) (a) children identically situated who receive six hours per day of special instruction, represented by a group of 433 plaintiffs, and (2) (b) children also identically situated who receive one hour per day of special instruction, represented by a group of 633 plaintiffs. Although some special education is provided, it is not made available to all on an equal basis. (See Brown v. Board of Education (1954) 347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 ; Griffin v. Illinois (1956) 351 U.S. 12 , 76 S.Ct. 585 , 100 L. Ed. 891 .) Nothing appears on the face of the record to explain why children are placed in one class rather than another. It is thus impossible to determine whether the basis of distinction has any rational connection to any legitimate state aim. 4

A third classification is: (1) all Chinese non-English speaking children who receive some remedial tutelage in English versus (2) all of their classmates who speak English. It is conceded that children in the first class have much narrower access to education than children in the second. Is there a rational basis for declining to bridge the educational gap between the two classes? Again the state has not been required to *808 supply one, and there is no showing in the record that those children, or any portion of them, in the first class are afforded a meaningful opportunity to a minimum public education. Here, as in Bullock v. Carter (1972) 405 U.S. 134 , 92 S.Ct. 849 , 31 L.Ed.2d 92 ; Reed v. Reed (1971) 404 U.S. 71 , 92 S.Ct. 251 , 30 L.Ed.2d 225 ; Tate v. Short (1971) 401 U.S. 395 , 91 S.Ct. 668 , 28 L.Ed.2d 130 ; Williams v. Illinois (1970) 399 U.S. 235 , 90 S.Ct. 2018 , 26 L.Ed.2d 586 ; Douglas v. California (1963) 372 U.S. 353 , 83 S.Ct. 814 , 9 L.Ed.2d 811 ; Griffin v. Illinois (1956) 351 U.S. 12 , 76 S.Ct. 585 , 100 L.Ed. 891 ; Brown v. Board of Education (1954) 347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 ; Yick Wo v. Hopkins (1886) 118 U.S. 356 , 6 S.Ct. 1064 , 30 L.Ed. 220 , the state has participated in discriminating against a clearly identifiable class and its failure to remedy the discriminatory practice has not been justified at all.

The state did not meet even its minimal burden. But its obligation was to meet the far more stringent test of strict scrutiny. The Chinese children have'met prima facie even the rigorous standards of San Antonio Independent School District v. Rodriguez (1973) 411 U.S. 1 , 93 S.Ct. 1278 , 36 L.Ed.2d 16 ; (1) They are members of a class precisely identifiable, (2) the state has participated in discriminating against them, (3) the children who speak no English and are taught none are absolutely deprived of education and it has not been shown that those who are taught some English have a meaningful access to an adequate education. San Antonio Independent School District v. Rodriguez is the most recent pronouncement in a lengthy chain of equal protection cases. But even if it stood alone, San Antonio Independent School District would compel reversal.

TRASK, Circuit Judge, with whom Judge WRIGHT concurs, specially concurring in the rejection of en banc consideration :

A basic misapprehension of the factual situation seems to color, if not pervade, the dissent from the court’s refusal to grant- en banc consideration. This appears from the statement that “the majority opinion concedes that the children who speak no English receive no education. . . .” The stipulation upon which the case was submitted for decision [footnote 1 of majority opinion] refers to 2,856 Chinese-speaking students in the school district “who need special instruction in English.” It continues by dividing those students into one group who receive designated amounts of special help in English and those who do not. Those who do not, however, are not assumed “to receive no education.” Although some do not receive special help, there is no indication that they are not exposed to whatever English courses are afforded. The majority opinion does not equate the need for “special help” in English with receiving “no education.”

Little comfort for the dissent may be found in San Antonio Independent School District v. Rodriguez, 411 U.S. 1 , 93 S.Ct. 1278 , 36 L.Ed.2d 16 (1973). Although the Chinese here were an identifiable group “who needed special help in English” [Stipulation, footnote 1], they were a small portion of approximately 15,500 Chinese students. It is not difficult to assume that they were part of an even larger group of students “who need special help in English.” As the Court recognized in Rodriguez the Equal Protection Clause does not, where wealth is involved, “require absolute equality or precisely equal advantages.” Continuing,

. See, e. g., Loving v. Virginia, 388 U.S. 1 , 87 S.Ct. 1817 , 18 L.Ed.2d 1010 (1966) ; Shapiro v. Thompson, 394 U.S. 618 , 89 S.Ct. 1322 , 22 L.Ed.2d 600 (1969) ; Chance v. Bd. of Examiners, 458 F.2d 1167 (2nd Cir. 1972).

. In. addition to being apparently arbitrary or irrational, Professor Michelman characterizes a suspect classification as one which has a high potential for abuse or for use as a tool by which a minority can be systematically deprived of equal access to the right and benefits the society offers. Furthermore, the criterion has a potential to hurt or stigmatize a group by implying official recognition of the group’s inferiority or undeservingness. See Michelman, supra, at 20.

. As the Fifth Circuit states, en banc, in disposing of a Petition for Rehearing in the case of Hawkins v. Town of Shaw, Miss., 437 F.2d 1280 (5th Cir. 1971) :

; Griffin v. Illinois, 351 U.S. 12 , 76 S.Ct. 585 , 100 L.Ed. 891 (1956) ; Douglas v. California, 372 U.S. 353 , 83 S.Ct. 814 , 9 L.Ed. 811 (1963) ; Anders v. California, 386 U.S. 738 , 87 S.Ct. 1396 , 18 L.Ed. 2d 493 (1966) ; Roberts v. LaVallee, 389 , U.S. 40, 88 S.Ct. 194 , 19 L.Ed.2d 41 (1967). In Roberts , the Supreme Court stated that “(o)ur decisions for more than a decade now have made clear that differences in access to the instruments needed to vindicate legal rights, when based upon the financial situation of the defendant, are repugnant to the Constitution.” 389 U.S. at 42 , 88 S.Ct. at 196 .

. Cal.Educ.Code § 71:

. Oal.Educ.Code § 8573:

. In our ease, unlike Yu Gong Eng, there is no indication that California intended the language statutes to injure Chinese. But it is now abundantly clear that good faith is irrelevant if in fact the impact of state action is discriminatory. E. g., Burton v. Wilmington Parking Authority, supra, 365 U.S. 715, 725 , 81 S.Ct. 856 ; of. Baker v. Carr (1962) 369 U.S. 186 , 82 S.Ct. 691 , 7 L.Ed.2d 663 . California’s record of deliberate discrimination against Chinese and Japanese is nevertheless lengthy. One of the sadder chapters in that melancholy history was an order of the San Francisco school hoard in October, 1906, compelling all Oriental children to attend a segregated school in Chinatown. The order was ultimately withdrawn under pressure of litigation, of Congress, and of the President of the United States. McWilliams, Prejudice p. 26 (1944).

. This is not a case like Dandridge v. Williams (1970) 397 U.S. 471 , 90 S.Ct. 1153 , 25 L.Ed.2d 491 , where there was a clear basis for distinguishing between welfare recipients stated in the regulation at issue. The requirements of Dandridge — “It is enough that the State’s action be rationally based and free from invidious discrimination.” (Id. at 487, 90 S.Ct. at 1162) — have not been met in this ease.