Association of Mexican-American Educators v. California

Opinion by Judge GRABER; Partial Concurrence and Partial Dissent by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge FERNANDEZ; Partial Concurrence and Partial Dissent by Judge KLEINFELD; Partial Concurrence and Partial Dissent by Judge GOULD; Dissent by Judge TASHIMA.

Plaintiffs are a class of Mexican-American, Asian-American, and African-American educators and would-be educators in California. They appeal from an adverse judgment in their action against the State of California and its agency, challenging (1) the district court’s holding that the California Basic Education Skills Test (“CBEST”), which is a prerequisite to employment in a variety of positions in the California public schools, violates neither Title VI nor Title VII of the Civil Rights Act of 1964, and (2) the district court’s use of a technical advisor at trial. Defendants cross-appeal from the district court’s rulings, on summary judgment, that Title VI and Title VII apply in this case. Defendants also appeal from the district court’s order denying their request for costs. For the reasons that follow, we hold that Title VII applies to the CBEST; that the CBEST was validated properly; that the…

The result we reach is most unfortunate. Not only is it wrong as a matter of law, but it may lead some to conclude that we are insensitive to the needs and problems of minority educators and minority students. While that may not be so, one thing is certain. The loser in the case before us is clearly the already beleaguered public education system of the state of California.

Although I concur in Section IA and Parts II, III, and TV of the majority opinion, I cannot agree with the majority’s *594 holding that the CBEST was properly validated under Title VII. As a result of this ruling, qualified minority educators— teachers, administrators, librarians, and other officials — will be denied the opportunity to work in California’s severely understaffed public schools, simply because they failed to pass a test that concededly has a disparate impact on minority group members. Despite Title VII’s clear requirement that a test that has a disparate impact on minorities must be validated by reference to a particular job, the majority accepts validation studies that fail to differentiate among different school jobs, ranging from bilingual education teachers to mathematics teachers to…

dissenting:

Among the issues raised by plaintiffs on appeal are the procedural errors (“procedural ] taint[ ]”) which “resulted in] the unreported influence of Dr. Klein.” Plaintiffs explain their contention as follows:

Appellants’ Opening Brief at 51. Because I cannot agree with the majority’s cursory and mistaken treatment of the technical advisor issue in Part III, I respectfully dissent.

I.

Courts and jurists have long recognized that the “law should in some way effectively use expert knowledge wherever it will aid in settling disputes.” Learned Hand, Historical and Practical Considerations Regarding Expert Testimony, 15 Harv. L'.Rev. 40 (1901). “The only question is as to how it can do so best.” Id. I agree with the majority that the district court retains the inherent authority to appoint a technical advisor in especially complex cases. Maj. op. at 591. As Justice Brandéis, speaking for the Court, noted more than 80 years ago:

Ex Parte Peterson, 253 U.S. 300 , 40 S.Ct. 543 , 64 L.Ed. 919 (1920) (approving appointment of an auditor and report to be made by him). In exercising that power, however, the district court must observe certain, minimal, procedural safeguards in…

I join in parts 1(B), II, and III of Judge Graber’s opinion, but not parts 1(A) or IV; in part II of Judge Gould’s opinion but not part I; that part of Judge Fernandez’s opinion dissenting on costs but not his concurrence in part 1(A) of Judge Graber’s opinion. That is to say, I agree with Judge Graber that the test was adequately validated and did not violate the Civil Rights Act. And I agree that the judgment does not need to be vacated because of the district court’s use of an in-chambers expert (though Judge Tashima’s concerns strike me as valid, and I might join in his view were I not confident that the result has to- be the same regardless of the ex parte advice from the judge-selected expert). I agree with Judge Gould’s dissent on whether Title VII applies. And I agree with Judge Fernandez that we should reverse the denial of costs.

I write separately for two related reasons. First, without at least a paragraph like the one above (and a scorecard to keep track of such paragraphs), readers of the opinion cannot figure out who stands where, and what the count is. So I have to write something. Second, our decision on whether Title VII applies, which generates most of our…

concurring in part and dissenting 1 in part:

I

I concur in Parts II, III, and IV of the majority’s opinion, and in the judgment. I write separately, however, to dissent from Part I and to express my view to the contrary that Title VII does not apply to the CBEST. The majority extends the reach of Title VII far beyond what Congress intended and in so doing creates potential mischief for all of our states.

II

Section 703(a)(1) of Title VII provides, in relevant part:

42 U.S.C. § 2000e-2(a)(l).

A natural reading of this section suggests that the “individual” it references is a potential, current, or past employee of the employer. That is the typical Title VII case. See, e.g., Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 , 118 S.Ct. 998 , 140 L.Ed.2d 201 (1998); Harris v. Forklift Sys., Inc., 510 U.S. 17 , 114 S.Ct. 367 , 126 L.Ed.2d 295 (1993); Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60 , 107 S.Ct. 367 , 93 L.Ed.2d 305 (1986); Albemarle Paper Co. v. Moody, 422 U.S. 405 , 95 S.Ct. 2362 , 45 L.Ed.2d 280 (1975); Griggs v. Duke Power Co., 401 U.S. 424 , 91 S.Ct. 849 , 28 L.Ed.2d 158 (1971).

However, in a line of cases beginning with Sibley Memorial Hospital v.…

I concur in the majority opinion with the exception of part IV, where the majority determines that a district court can refuse to award costs to the prevailing party simply because the court decides that the losing parties do not have much money, and are worthy because they have presented an important issue which is close and has some merit. As to that, I dissent.

To my mind, reasoning along that line bespeaks an improper bias in favor of plaintiffs. If the issue is important, both sides have a hand in seeing to it that the true public interest is vindicated, and, as it turns out, a defendant may well be the party correctly representing that public interest. Here we deal with the public’s interest in having competent people running its schools and teaching its children, and Defendants showed that it is Plaintiffs who erred when they incorrectly thought that a competency test was overly burdensome and improper. That is to say, Plaintiffs’ claim that they and those they represent should not have to meet the minimal competency requirements of the CBEST was wrong. The public interest has been vindicated, but not by them. Rather, Defendants properly represented the public’s desires…