# Association of Mexican-American Educators v. California > Court of Appeals for the Ninth Circuit · October 30, 2000 · 231 F.3d 572 URL: https://www.frixlaw.com/law-library/cases/6989018 ## Case - **Full name:** The ASSOCIATION OF MEXICAN-AMERICAN EDUCATORS ("AMAE") California Association for Asian-Pacific Bilingual Education ("CAFABE"), on behalf of themselves, their members, and all others similarly situated Oakland Alliance of Black Educators ("OABE"), on behalf of themselves, their members, and all others similarly situated Sara MacNeil Boyd Sam Genis Toua Yang Bob Williams Marta LeClaire Antoinette Williams Diana Kwan and Agnes Haynes, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants/Cross-Appellees v. STATE OF CALIFORNIA The California Commission on Teacher Credentialing, Defendants-Appellees/Cross-Appellants - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** October 30, 2000 - **Citations:** 231 F.3d 572; 2000 Daily Journal DAR 11533; 79 Empl. Prac. Dec. (CCH) 40,298; 84 Fair Empl. Prac. Cas. (BNA) 474; 2000 Cal. Daily Op. Serv. 8675; 2000 U.S. App. LEXIS 27040 - **Precedential status:** Published - **Opinion:** Concurring in part by Kleinfeld - **Judges:** Fernandez, Gould, Graber, Hug, Kleinfeld, Reinhardt, Rymer, Scannlain, Schroeder, Tashima, Thomas, Whom - **Cited by:** 27 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6989018 ## How later opinions describe it (automated extraction) - declining to address the plaintiffs’ Title VI claim because it was unnecessary given the resolution of the identical claim under Title VII and therefore, anything written about the Title VI claim would constitute “an advisory opinion” - noting approval of cases “refusing to award costs to a prevailing party” on the basis of “the losing party’s limited financial resources” ## Opinion text KLEINFELD, Circuit Judge, with whom Circuit Judge O’SCANNLAIN joins, concurring in part and dissenting in part. 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 division (and the need for so incomprehensible a sentence as the one with which I begin this separate opinion), is entirely unnecessary and could better be avoided. We are not bound to avoid deciding, as we would be with a constitutional question, 1 but it would be preferable for us to avoid deciding. 2 *601 The way to avoid deciding the issue of whether Title VII applies is the obvious and traditional formula: “Assuming without deciding whether Title VII applies, we conclude that it was not violated, because this test does not discriminate in violation of that law.” I would have preferred that we had used that formula. The reason why I advocate such avoidance is not the difficulty of the question. Judge Gould’s analysis is compelling and clearly correct. Congress prohibited discrimination by employers with respect to employees. The defendants do not employ the plaintiffs or those whom the plaintiffs represent. So the Title VII prohibition does not speak to the situation. Congress adopted the Civil Rights Act of 1964 after one of the great legislative battles of our time. It did not choose to impose the expense of justifying tests and other actions that affect employability on third parties other than employers. The country suffered from massive direct and intentional race discrimination at that time. Considering the political challenge that the Civil Rights Act of 1964 posed for its advocates, and the skill and consumption of political capital it required of such great men as President Lyndon Johnson, Senator Hubert Humphrey, and Senator Everett Dirksen, we cannot assume that Congress would have gone any further than it did. Reading statutes as if they said what they do not say, in order to go further than the legislature did, vitiates careful legislative compromises. If we do not respect the compromises legislators make, how shall they be induced to make them? “If we were to ‘fully effectuate’ what we take to be the underlying policy of the legislation, without careful attention to the qualifying words in the statute, then we would be overturning the nuanced compromise in the legislation, and substituting our own cruder, less responsive mandate for the law that was actually passed.” 3 Those who only got half a loaf from Congress frequently come to the federal courts for the other half, but their mail ought to be forwarded to Capitol Hill. There are several reasons why it would be better for us to avoid deciding whether Title VII applies. One is that deciding the issue reduces the collegiality of our decision. By “collegiality” I do not mean civility or good feeling among colleagues, meanings sometimes inferred from the word. I mean the dictionary definition, “shared authority among colleagues,” 4 so that we- meld our individual voices into the voice of the court. An appellate court ought to speak collectively as nearly as possible, particularly when it speaks with the force of an en banc decision. In my experience, the way votes are accumulated for a collegial decision is mainly by deletion of matters not essential to the result, and on which there is disagreement. In this case, the decision on whether Title VII applies is not essential to the result. Of the eleven judges on this en banc panel, nine agree that, whether Title VII applies or not, the test was adequately validated and would not violate Title VII. We could simply stop there. If the test is appropriate even if administered by an “employer,” as the district court found and nine of us would affirm, then we need not decide whether a non-employer state board should be treated as if it were an employer for purposes of Title VII. There are quite a few reasons why such collegiality is desirable. One is that the law is hard to figure out when a reader needs a scorecard to count votes on an issue by issue basis. It is much easier to know what the law is from Chief Justice Marshall’s unanimous opinions, than from the old English Reports with individual judges’ opinions reported seriatim. Care *602 ful jurists can fall into disagreement on how to keep score. 5 When we do decide on an issue, despite the decision being inessential to the result, there is necessarily a question of whether our decision is mere dictum. The traditional definition of obiter dictum is a “remark by the way” or as “[statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand ... and lack the force of an adjudication.” 6 Our resolution of inessential issues invites more litigation. In this case, our reaching out to hold that Title VII applies to non-employers opens the door to more litigation, instead of shutting it. We have now created a circuit split on a national issue of great importance. As Judge Gould points out, all the other circuits to have ruled on whether Title VII (or the analogously construed ADEA provision) applies to non-employers such as state licensing boards have gone the other way. In a schools case in the Seventh Circuit, 7 a veterinary board case out of the Third, 8 and most closely analogous, a school teacher state certification examination case out of the Fifth, 9 our sister circuits have gone the other way. (So have we, for that matter, in a dental board case. 10 ) Though the majority opinion struggles to distinguish these cases, it is indeed a struggle, and the distinction is not solid enough for any state licensing board to rest on. A decision like today’s, where we set up an inter-circuit conflict on a matter of great national importance, is colloquially known among those of us who do appellate law for a living as “cert bait.” That is to say, we have furnished the Supreme Court with a reason to grant a petition for certiorari. As soon as we file our opinion, the highly capable lawyers involved will start calling around to arrange meetings relating to the certiorari petition and amicus briefs. The majority opinion today says that we ought to decide the Title VII applicability issue because it is logical, but there is nothing illogical about assuming without deciding. In the study of logic, assuming without deciding is termed “conditional,” “if p then q.” 11 Just as it is perfectly logical to say “if today is Thursday then tomorrow is Friday,” without saying whether today is Thursday, it is perfectly logical to say that “if Title VII applies, it is satisfied,” without saying whether Title VII applies. The majority also says we should decide the Title VII issue even though we do not have to reach it, because the parties probably want to know the answer, particularly the State of California. Somehow I doubt that the State of California really wants to know that now it may have to spend hundreds of thousands, maybe millions, of dollars, and years of litigation, validating examinations and possibly all the other screening it does of all licensed professions. More likely, both sides just wanted to win this case and establish either that the CBEST examination was or was not permissible. These are school people. They probably care about schools, and want a final answer about the CBEST examination. We have undercut the finality of the answer by reaching out for “cert bait.” *603 There is another, and to my mind, especially important reason why we ought to avoid deciding this question on which we disagree. We may be wrong. On anything, we can be wrong. I am fairly confident that Judge Gould is right about Title VII, but I could be wrong. The scope and applicability of Title VII is an exceedingly important, and always controversial, question. Because we are not elected and always in every circumstance run a substantial risk of being wrong, the less we govern the better. That is not to say we should dodge the controversial. If the law is established and the facts show a violation, we are obligated to apply the law without regard to whether it is controversial. But we should restrain ourselves from deciding important public policy issues, when they are unnecessary to decision in the matter before us, we lack a consensus, all the other circuits to have decided them have gone the other way, and the law we establish is not clearly compelled. The people can govern themselves. All that said, I am not going to make the score even harder to keep by withholding my judgment. We have reached the Title VII issue whether I like it or not. I cannot prevent us from reaching it. So I join Judge Gould in concluding that it does not apply because the lawsuit is not against the relevant employer. . See, e.g., Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 , 56 S.Ct. 466 , 80 L.Ed. 688 (1936) (Brandeis, J. concurring) (explaining the well-established principle of judicial restraint that courts should avoid de-daring a statute unconstitutionally void when possible). . See Anderson v. U.S., 417 U.S. 211, 218 , 94 S.Ct. 2253 , 41 L.Ed.2d 20 (1974) ("We think it inadvisable, however, to reach out ... to *601 pass on important questions of statutory construction when, simpler, and more settled, grounds are available for deciding the case at hand.”). . Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1113 (9th Cir.2000). . The American Heritage Dictionary 291 (2d college ed.1985). . For example, in Ahumada-Agutlar, we were unable to agree on what the Supreme Court had established as law after the Court had decided a factually analogous case, but with four opinions and no majority opinion. U.S. v. Ahumada-Aguilar, 189 F.3d 1121 (9th Cir.1999). . Black’s Law Dictionary 455 (6th ed.1990). . Equal Employment Opportunity Commission v. Illinois, 69 F.3d 167 (7th Cir.1995). . George v. New Jersey Bd. of Veterinary Med. Exam’ers, 794 F.2d 113 (3d Cir.1986). . Fields v. Hallsville Indep. Sch. Dist., 906 F.2d 1017 (5th Cir.1990). . Haddock v. Board of Dental Examiners, 777 F.2d 462 (9th Cir.1985). . Wesley C. Salmon, Logic 21 (1963). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6989018. Public record. Not legal advice.