Opposition Brief — Mitchell v. Board of Trustees

| FILED ©

ee |

3) | wa? 8

No. 88-1622 “ ]-

' | JOSEPH F. SPANIOL, JR,

TA. ERK

IN THE

Supreme Court of the United States

OctToser TERM. 1988

RICHARD L. MITCHELL, JR.,

Petitioner,

vs.

THE BOARD OF TRUSTEES OF THE LOS ANGELES

COMMUNITY COLLEGE DISTRICT, et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

WARREN S. KINSLER, General Counsei*

LOS ANGELES COMMUNITY COLLEGE DISTRICT

617 West Seventh Street

Los Angeles, California 90017

(213) 891-2188

Attorney for Respondents

*Counsel of Record

Lawyers Brief Service / Legal Printers / (213) 383-4457 / (714) 720-1510 a (2

4

2 O¢

No. 88-1622

IN THE

Supreme Court of the United States

OcTOBER TERM. 1988

RICHARD L. MITCHELL, JR.,

Petitioner,

VS.

THE BOARD OF TRUSTEES OF THE LOS ANGELES

COMMUNITY COLLEGE DISTRICT, et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

WARREN S. KINSLER, General Counsel*

LOS ANGELES COMMUNITY COLLEGE DISTRICT

617 West Seventh Street

Los Angeles, California 90017

(213) 891-2188

Attorney for Respondents

*Counsel of Record

8 eR 9 SS po ARE oo? | a a 1

A. reir Oe Fhe COee wt ts 1

me meen OF FOCES ......-20- 2

eee Ree, og bg eee 6 8 ee 7

A. | ni mmun

| har h

State’s Immunity From

| i a a eS gw g

B. f ni

Ww. mmun i |

i Ar A nc i ._ at

tee As a Matter of Fact,

California Community

Districts Are State

eb dn a 5 ake ed es oe 25

D. Plaintiff is Not Entitled

In jun iv O°! re ao

e. ndivid | ndent

Are Immune As Well ..:....... 35

ee .. 36

=i =

473 U.S. 234, 241, 243,

105 S.Ct. 3142, 3147-3149

Ie. be ee ee ee wo 9,11

Board of Regents v. Tomanio

446 U.S. 478, 483-484 100

o.Gt. 780, 788 ©3960) ...8%. 13

745 F.2d 533 (8th Cir., 1984). 15

Iman _v a Nn

435 U.3. G61, 94 $.Cct. .1347

eS fs eee er ea ere ee 10

ir a

197 Cal.App.3d 627, 243

ee eee Go ee re te

Foreman v. G.M.

473 F. Supp. 166 (E.D. Mich.

RE, Gi ala iek® cake eee aaah ee 11

Goss v. San Jacinto Junior

College

556 F.2d 96 (5th Cir., 1979) . 16

Great Northern Life Insurance

Co, v. Reed

Jaa U.S. 47, 64 $.6t. 873

5 WS a 0 a “ae le oe a a ek bd a ce 10

mt hie

Green vy. Mansour

474 U.S. 64, 73, 106 $.Ct.

423, 428 (1965) ....cc ee ecenee 11

Hander_yv,. San Jacinto Junior

College District

819 F.2d 273 (Sth Cir., 1975). 16

Halli v. City of Taft

QF Gel . 26-192 €0 eee) 6 eee es ees 18, 19, ze

a ee

Hal! vy, Medical College of Ohio

742 F.20 299 (8th Cir., 1984) .15

134 U.S. 1, 10 &.Ct. 604

OTD 6 6 eh eens ae eee ees 10

Hooghuli v. Ariyoshi

741 F.2d 1169 (Sth Cir.,

fo jeer wee eer eT See eee ee 16

of Michigan State University

595 F.Supp. 862 (W.D. Mich.,

Se a a oak 8 eo ee ae ak ee ee 15,16

682 F.2d 1344, 1350 (9th Cir.,

SS eee a ee ere ee eee ee 17

wJagnandan vy, Giles

538 F.2d 1166, 1174 (5th Cir.,

boa § Serrano a rer se gran sr we a eee 16

Lerner v. Los Angeles City Board

of Education

89 Cai.2¢ 362, 29 Cai.Rotr. 657

CRM Ok oi nca caked eae a nee ea cea 23

-iii-

Maestas v. Board of Education

749 F.2d 591 (10th Cir.,

a sind MEE ee eee or 15

748 F.2d 1393 (10th Cir.,

OED” ae ke a ee ok ee eee eee ee ee 14,25

Mitchell v. Los Angeles Community

| i rj

861 F.2d 198, 199-200 (Sth

ec) CRE | sada ee We besa Sle ees 3

Bichard L.. Mitchell vaio

Angeles County Superintendent

of Schools

805 F.2d 844 (Sth Cir., 1986) .2

M r j

of Social Services,

436 U.S. 658, 690, n.55,

98 $.Ct. 2018, 2035, n.55

Sc. } ee eee a eee er ere ere oe 36

h h |

vy. Doyle

429 U.S. 274, 97 S.Ct. 568

CORTE) swe cress esneteviaacan das tg tate

15,18

Pennhurst State School and

Hospital v. Halderman

465 U.S. 89, 100-101, 104

S.Ct. 900, 906, (1964) ...1.. 33,34

Peters v. Lieualien

693 F.2d 966, 970 (9th Cir.,

(o * 2 are a ora ae eer ere ea er 11

wt ye

Pugh v,. Alabama

438 U.S. 781, 98 S.Ct. 3057

CUP aie ew is ws 06s meee 33

Pyne v. Meese

172 Cal.App.3d 392, 403 (1985).12

Quern vy, Jordan

440 U.S. 332, 343-345, 99 S.Ct.

1139, 1146-1147 (1979)........ 10,25

Roberts vy. College of the Desert

861 F.2d 1163, 1170-1171,

(SEM Cir., ISB) 2. cc sccesvceeue 9

Rutledge v. Arizona Board of

Regents

660 F.2d 1345 (9th Cir.,

PRED oe vacwie sehen teas ae eee 16

3 Cal.3d 937, 951-952,

Sa GHt. Retr, Bare CSF IP seats 22,45

schiessinger v, Reseryist

Committee to Stop the War

418 U.S. 208, 222, 94 S.Ct.

Bene, Sees CURES) 4246 e ee aw es 34

f M ; r i

S6Gi fF. 26 786 (Sth Cir.,

Re a ae So ee ee ee oe eee 16

A muni

College District

572 F.Supp. 1072 (C.D. Cal.

1983), affirmed 796 F.2d 270

(9th Cir., WBS) .. ccc seascs 8,9

Vaughn v, Regents of the

University of California s

504 F.Supp. 1349 (E.D. Calif.

Pao Se aa ee nk a Oe

“is

UNITED STATES CONSTITUTION

Eleventh Amendment .......

RA TATUT

26 U.3.¢C. Section 2201

28 U.S.C. Section 2202

42 U.S.C. Section 1981

42 U.S.C. Section 1983

42 U.S.C. Section 1985

42 U.S.C. Section 19886 ....

42 U.S.C. Section 2000(d)..

Code of Federa! Regulations

34 CFR Part 100.7(@) .....:.

Civil Rights Act of 1964....

Comprehensive Employment and

bat Boe oe err a ewe eee ae

Job Training Partnership Act

Federal Rules of Evidence

PRN FaNU ONY oo a ea ok a ee

TAT T

Education Code

BOGC UGH Fae ee 6-68 ee i ee ee

Sections 74200 et seq. .....

Sections 84500 et seq. .....

Sections 84900 et sed. .....

-vii-

7,838,939, 170,

a1, tes tO

14,137,224,

25,34,36

26

Sections 8880 et seg. .....

22 California Administrative

COGOe SOCtion BSS41O sac acvceves

Article IV, Section 25, subd.

zef, trepeaied 6/3/80) «2...

ATTiclie t¥.,. S@Grion 16 .«.<-+

Article |x

AT TIiCi@ IA, S@etron 7 .-.4%5

Article t%,; S@etion 6 ....<«.

ATUTIiCi@ tz, -SOCtion © ..««

Article IX, Section 14 ....

Artrere Ki, BSction + «+. 6«s

mee he tee ee 8 Ee) 6 eon woos rk ee es

AE StGte ATO xk ec ek eee 8

Article XVI, Section 8 ....

Statutes of 1981, Chapters

i, Sg oe eo Sate Marine ON a PA pee ne, en oi

Statutes of 1984, Chapter 1

-Vlili-

STATEMENT OF THE CASE

A. Nature of the Case

Petitioner, DOr. Richard L.

Mitchell, contends that he was the victim

of race and age discrimination resulting

from Respondents’ fallure to appoint him

to several administrative positions in

the Los Angeles Community College

Cistr ice. Dr. Mitchell also claims that

he was denied due process by the

Respondents in their handling of his

internal discrimination complaint.

Petitioner alleges that the District and

its employees violated federal and state

law by discriminating against him on the

basis of race and age and by denying him

due process of law.

Dr. Mitchell’s inabllity to

obtain a job with the Los Angeles

Community College District results from

his lack of competitive qualifications

and his failure to renew his job

application when instructed to do so.

This lawsuit constitutes at least

the third attempt by the Petitioner to

label educational institutions in Los

Angeles County as racist. As with his

prior claims pursued in the trial court

and the Ninth Circuit Court of Appeals,

this one is made of whole cloth.

Dr. Mitchell’s claims are the result of a

paranoid obsession with racism anda

grandiose perception of his own

qualifications. For example, see Richard

L. Mitchell v. Los Angeles County

Superintendent of Schools, 805 F.2d 844

(oth Cir., 986).

B. men f

In conjunction with the issuance

of its judgment in this action, the trial

court developed an excellent synthesis of

the case, and the trial court’s Findings

2f Fact are set forth in Appendix B

accompanying the Petition. (Hereinafter

“App. 8B.) The court of appeals

accurately summarized the facts in its

opinion. Mitchell v, Los Angeles

Community College District, 861 F.2d 198,

199-200 (9th Cir. 1988). Simply stated,

the facts are these:

ie Dr. Mitchell claims

discrimination In the District’s failure

to invite him for more job interviews.

This cannot be so because the paper-

screening which occurs prior to

interviews is “color-blind."

* Dr. Mitchell claims he would

have been appointed to the position of

Senior Director, Occupational and

Technical Education, but for the

District’s blatant race and age

discrimination. Dr. Mitchell proved

himself unqualified at his Interview.

The Job description requires familiarity

with the Job Training Partnership Act

(JTPA). Plaintiff did not even know that

JTPA had replaced the Comprehensive

Employment and Training Act. (App. B,

fe» ae

. Dr. Mitchell claimed the

District retaliated against him for

having filed claims of discrimination

when he was rejected for the position of

Assistant Dean, Academic Affairs at Los

Angeles Southwest College on June 11,

1984. The undisputed fact of the matter

is that the decision-maker, Dr. Mcintosh,

did not know and had no reason to know

about Petitioner’s earlier claims of

discrimination. (App. B, pp. 15-16.)

There simply was no causal nexus between

the protected activity and the adverse

decision.

4. Dr. Mitchell claims that he

was retaliated against for his earlier

claims when he was denied the position of

Assistant Dean, Occupational Education.

Petitioner simply failed to comply with

the District's reasonabie requirement

that an up-to-date application be kept on

file in the Personal Operations Branch of

the District. There was no adverse

decision; Plaintiff's name was not in the

assistant dean pool because of his

failure to timely renew his application.

(Ape. @. 6. 6.3

5. Petitioner claims that he was

denied due process after the District

failed to timely respond to his internal

discrimination complaint. Petitioner

chooses to ignore the fact that at the

same time his internal complaint was

pending, the very same allegations were

being investigated by the U.S. Department

Of Education's Office for Civil Rights

and that the District’s Office of

Affirmative Action Programs and Services

was deeply involved in resolving that

complaint. (App. B, pp. 17-20.)

Petitioner may not impose an unnecessary

duplication of effort on the District.

California law recognizes that. 22

California Administrative Code section

98410.

Dr. Mitchell knew prior to filing

this action that his claims were

meritless, yet he pursued them anyway.

This sort of conduct should be made the

subject of sanctions, particularly where

the plaintiff knows from past experience

that his conduct results in a huge waste

of time and effort by the courts and his

intended victims.

a eT ee

ARGUMENT

THE NINTH CIRCUIT COURT OF

APPEALS CORRECTLY CONCLUDED THAT

THE DISTRICT, ITS BOARD OF

TRUSTEES AND !TS EMPLOYEES SHARE

IN THE STATE’'S ELEVENTH

AMENDMENT IMMUNITY AND ARE THUS

NOT SUBJECT TO LIABILITY

PURSUANT TO 28 U.S.C. SECTIONS

2201-2202 OR 42 U.S.C. SECTIONS

1981, 1983, 19885 OR 2000(qd).

Dr. Mitchell bases this action in

large part on 28 U.S.C. sections 2201-

2202, 42 U.S.C. sections 1981, 1983,

1985 and "Code of Federal Regulations

section 100.7(e)" (sic). (Appellees

assumed Dr. Mitchell was referring to 34

cen. wees 6 TOD. 7 Ce). ) These

regulations were promulgated in order to

implement Title VI of the Civil Rights

Act of 1964, 42 U.S.C. section 2000(d).)

The Eleventh Amendment of the United

States Constitution bars any finding of

liability on the part of the District,

its Board of Trustees or its employees,

acting in their official capacity.

California’s community college districts

are agencies of the state for the loca!

administration of public higher

education and have been recognized as

such by California law since at least

1956. As a result, California community

college districts share in the state's

immunity under the Eleventh Amendment.

See, for example, n Vv. n |

mmun i | | ri , S72 F.Supp.

1072 (C.D. Cal., 1983), affirmed on

8

other grounds, 796 F.2d 270 (9th Cir.,

1986). '

A. California Community Colleges

Share in the State’s Immunity

From | |

Under the Eleventh Amendment of

the United States Constitution,

California's community college districts

are not subject to suit in federal court

by private parties where, as here, there

has been no waiver by the state of its

sovereign immunity and no abrogation of

that immunity by Congress. Atascadero

State Hospital v. Scanion, 473 U.S. 234,

241-243, 105 $.Ct. 3142, 3147-3149

(1985). This principle Is firmly woven

' Contrary to Petitioner‘’s assertion, the Ninth

Circuit in Roberts v. College of the Desert, 861

F.2d 1163 (9th Cir., 1988), decided, prior to

publication of this case, that Roberts should be

remanded to the trial court for further factual

findings on the issue of Eleventh Amendment

Immunity. Roberts. supra, 861 F.2d at 1170-

hes ie

into the fabric of American

Jurisprudence. Hans vy. Louisiana, 134

U.S. 1, 10 S.Ct. 504 (1890); Great

Northern Life Insurance Co. y. Reed, 322

U.S. 47, 64 $.Ct. 873 (1944)

‘ In Quern v. Jordan, 440 U.S.

332, 343-345, 99 $.Ct. 1139, 1146-1147,

(1979), the Supreme Court held that

states and their agencies are not

persons amenable to suit under 42 U.S.C.

section 1983 because of the immunity

conferred upon them by the Eleventh

Amendment. The state's eee under

the Eleventh Amendment from suits in

federal court based on 42 U.S.C. section

1983 is well established. Edelman vy.

Jordan, 415 U.S. 651, 94 S$.Ct. 1347

(1974). Liability pursuant to 42 U.S.C.

section 1985 requires an underlying

Violation of section 1983, and where, as

here, the defendants are not l|lable

10

under section 1983, they are !|ikewise

not |iable under section 1985. Damage

sults against state agencies premised

upon 42 U.S.C. section 1981 are |ikewlse

barred by the Eleventh Amendment.

r llen, 693 F.2d 966, 9370

(oth Cir., M282). Liability pursuant to

42 U.S.C. section 2000(d) is likewise

precluded by the Eleventh Amendment.

Cf. Atascadero State Hospital v.

Scanlon, supra, 473 U.S. as 241-243, 105

$.ct. at 3147-3149 (1985). Similarly,

28 U.S.C. sections 2201-2202 do not

authorize suits against states and

therefore cannot be used to circumvent

the Eleventh Amendment. Green v. a

Mansour, 474 U.S. 64, 73, 106 $.Ct. 423,

428 (1985); Foreman v. G.M., 473 F.Supp.

166 (E.D. Mich., 1979). Under

California taw, agencies of the state

are not persons for purposes of 42

11

U.S.C. section 1983. Pyne vy. Meese, 172

Cal.App.3d 392, 403 (1985). Even a

state court would have to dismiss these

claims as a matter of law. *

The issue, of course, is what

constitutes a state agency? The Supreme

Court grappled with the problem in its

decision in Mt, Healthy City Schoo!

| rj le. 429 U.S. 274, 97

s.Ct. 568 (1977).

"The issue here thus turns on

whether the Mt. Heaithy Board of

Education is to be treated as an arm

of the state partaking of the

state’s Eleventh Amendment immunity,

or is Instead to be treated as a

municipal corporation or other

political subdivision to which the

Eleventh Amendment does not extend.

The answer depends at least In part

upon the nature of the entity ~

created by state law." 429 U.S. at

2680, @7 &.Ct:. at SZ.

é Plaintiff's reliance on Eirst Interstate Bank

Y. State of California, 197 Cal.App.3d 627, 243

Cal. Rptr. 8 (1987) is misplaced. For purposes

of Eleventh Amendment analysis, First Interstate

is not inconsistent with the District's position

in this litigation.

12

The Court reviewed Ohio law, and

concluded that the Mt. Healthy City

School District was more like a city or

county than Jlike an agency of the state.

But the salient feature of the Court's

analysis is the principle that to

determine whether an entity participates

in a state’s Eleventh Amendment

immunity, a federal court must look to

state law. This is consistent with

principles of federal jurisdiction.

See, e.g., r f n T nio,

446 U.S. 478, 483-84, 100 S.Ct. 1790,

1795 (1980) (noting that 42 U.S.C.

section 1988 instructs federal courts to

refer to state law to determine the

extent of federal jurisdiction under

section 1983 as a matter of federal

law). Hence, as a matter of federal law

under the Eleventh Amendment, Ohio law

may require a finding that the Mt.

13

Healthy City School District is not an

arm of the state, but California law may

require a finding that schoo! and

community college districts are part of

a state system of public education.

A number of circuits have been

called upon to perform this application

Of state law, and the results have

varied depending upon the provisions of

the laws they were called upon to apply.

For example, the Tenth Circuit

Court of Appeals concluded that New

Mexico law compelled the conclusion that

a local school board and its members

were Immune, under the Eleventh

Amendment, from a suit over alleged

Infringement of First Amendment rights,

because local boards were arms of a

state system of education. Martinez v.

Board of Education of Taos Municipa!

schoo! District, 748 F.2d 1393 (10th

14

Cir... veee?. See also Maestas vy. Board

of Eagucation, 7/49 F.2d 691 (iIGth Cir.,

1984). In Deita Special School District

No. 5 v. State Board of Education for

the State of Arkansas, 745 F.2d 533 (8th

Cir., 1984), the Eighth Circult

reaffirmed that school districts in

Arkansas are political subdivisions of

the state, emphasizing that the benefit

of that status carries with It burdens

as well. The Sixth Circuit concluded

that the Medical College of Ohio is not

an agency of the State of Ohio, 2m Ss

| lo, 742 F.2d 299

(8th Cir., 1984), although Its analysis,

derived from Mt, Healthy City Schoo!

‘4 | », compeiled the

conclusion that Michigan State

University is an arm of the State of

Michigan. Hutchins v. Board of Trustees

of Michigan State University, 595

15

F.Supp. 862 (W.D. Mich., 1984). When

the Fifth Circult examined community

college districts In Texas and conc!uded

that they were not agencies of the

state, Hander vy. San Jacinto Junior

College, 519 F.2d 273 (5th Cir., 1975);

Goss v. San Jacinto Junior College, 558

F.2d 96 (5th Cir., 1979), it recognized

that its conclusion was a function of

"“neculiar Texas statutory and decisional

law." n n | , 638 F.2¢

1166, 1174 (6th Cir., 1976).

The Ninth Circuit has been

called upon to apply these principles on

a number of different occasions, and has

examined the laws of Arizona (Rutledge

a n r , S60 F.2a

1345 [9th Cir., 1981] Montana (State of

Montana vy. Pe; ettil, 661 F.2d 756 [9th

Cir., 1981]), Hawall (Heehull v.

Arivoshi, 741 F.2d 1169 [9th Cilr.,

16

<2?

1984)) and California (Jackson vy.

Hayakawa, 682 F.2d 1344 (9th Cir.,

1982)) to conclude that institutions of

public higher education are arms of the

state and share in Eleventh Amendment

immunity. The principles developed in

those cases serve as a firm foundation

for an examination of California law

relating to community college districts,

and compel the conclusion that a

California community coliege district

shares the state’s immunity under the

Eleventh Amendment.

B. As a Matter of California Law,

Community College Districts Are

State Agencies.

California courts have long held

that as a matter of state law,

California’s school and community

college districts are agencies of the

state for the loca! operation of the

17

state school system. They are

distinctly not municipalities. They are

not Independent local school! districts

as was the Mt. Healthy City School

vretrict. They are subject to the

plenary authority of the state

legislature, and not to any local

regulatory effort.

The watershed statement of the

nature of California’s school and

community college districts was Hall v,

City of Taft, 47 Cal.2d 177 (1956). In

Hall, the California Supreme Court

synthesized a number of its previous

statements about California’s public

institutions of education with the

constitutional status of education in

California.

The facts of Hall were simple.

The Taft Union High Schoo! and Junior

College District (i.e., community

18

college district) wished to construct a

school building. Its plans and

specifications had been approved, as

required (and still required) by the

State Department of Education and the

State Division of Architecture.

However, the City of Taft attempted to

impose its building and zoning

requirements on the construction. The

California Supreme Court held that it

could not do so.

"The public schools of this

state are a matter of statewide

rather than loca! or municipal

concern; their establishment,

regulation and operation are

covered by the Constitution ana

the state legislature is given

comprehensive powers in relation

thereto " Mais wv. © ity of Tarts .

47 Cat.26@ @t %79. fe

The Court was persuaded that the

provisions of the California

Constitution absolutely precluded any

other conclusion. The Constitution

provided, at Article IV, Section 25,

19

subd. 27, that the legislature could not

pass local or speciai laws providing for

the management of common schools; it

still provides, at Article IV, Section

16, that a local or special statute is

invalid In any case if a general statute

can be made applicable. In nearly every

Instance of schoo! or community college

reguiation, a general statute is

applicable.

Article IX, Section 1, still

provides that "[a] general diffusion of

knowledge and intelligence being

essential to the preservation of the

rights and I|iberties of the people the

legislature shall encourage by al

suitable means the promotion of

Intellectual, scientiflc, moral, and

agricultural improvement. " Article |x,

Section 5 still provides that the

legislature shall provide for a system

20

of common schools. Article IX, Section

6, provides in extensive detail for the

staffing, salary, organization, finance,

and appropriations of the state’s schoo!

system. No school or college may be

transferred from the public school

system or placed under the jurisdiction

of any authority other than one included

within the public school system.

Articie IX, Section 14, declares again

that the legislature shall have the

power, by general Jaw, to provide for

the Incorporation and organization of

schoo! and community college districts.

The detailed requirements of

Article IX contrast sharply with the

brief, general provisions of Article Xl

of the California Constitution relating

to local government. Significantly,

Article XI, Section 1, specifies that

counties are "legal subdivisions" of the

21

state; no parallel provision appears in

Article IX relating to schoo! or

community college districts. The

California Constitution consigns true

municipalities to their electorates but

assures that school! and community

college districts wil! be subject to

close legislative scrutiny.

It is true that school and

community college districts are locally

organized. They are so organized

pursuant to state law. As noted in Hal!

vy, City Taft. supra.

Schoo! districts are agencies of

the state for the local

operation of the state schoo!

system. (Citations omitted).

The beneficial ownership of

property of the public schools

is In the state (citations

omitted) ... [t]he beneficial!

owner of the fee [of public

school property] is the state

itself, and ... its agencies and

mandatories -—- the various public

and municipal corporations in

whom the title rests - gre

essentially nothing but trustees

of the state, holding the

22

property and devoting it to the

uses which the state itself

directs." Hall v. City of Taft,

47 Cal.2d at 181-182. (Emphasis

added. )

Since the supreme court's

decision in Hall y. City of Tash. 3tS

holdings that schoo! and community

college districts are state agencies,

and that the legislature has plenary

authority over education in California,

have been recurring themes in the

decisions of California courts. The

decision has controlled many issues, and

has never been seriously questioned.

The California Supreme Court has

shown no sign of doubting its own

analysis. In Lerner y. Los Angeles City

Board of Education, 59 Ca!.2d 382, 29

Cal.Rptr. 657 (1963), the court noted

that the board of education served as an

agency of the state. in San Francisco

Unified Schoo! District vy. Johnson, 3

23

Cal.3d 937, 951-952, 92 Cal.Rptr. 309

(1971), the Court stated that:

"Education, Including the

assignment of pupils to schools,

Is plainly a state function

(citation omitted). ‘The

education of the children of the

state is an obligation which the

State took over to itself by the

adoption of the constitution’

(citation omitted). To carry

out this responsibility the

state has created loca! school

agents of the state."

The foregoing analysis compels

the conclusion that California’s

community college districts are agencies

of the state for the local!

administration of public higher

education, and thus share in the state’s

immunity from suits In federal court

under the Eleventh Amendment. However,

there is ample factual basis for this

COnNcIUSION as well.

24

Cc. As A Matter Of Fact. California

Community College Districts Are

State Agencies,

From the analysis above, it /s

clear that federal courts look to a

number of factors to conciude that a

public entity is entitled to claim the

shield of the Eleventh Amendment.

Martinez v. Board of Educationof Taos

Municipal Schoo! District, 748 F.2d 1393

(Sth Cir., 1984), Vaughn v. Regents of

the University of California, 504

F.Supp. 1349 [(E.D. Calif., (1981)].

Perhaps the single most compelling

factor is the determination that any

judgment obtained will be satisfied by

state or state-controlled funds. Quern

vy. Jordan, 440 U.S. 332, 99 S.Ct. 1139

(1979). Courts have also looked to the

extent to which the state retains a

measure of control over the governing

25

body of the public entity, and the

importance of the function Involved.

Yaughn vy, Regents of the University of

California supra, at 1351-1354 (1981).

An examination of the role of

Californias community colleges in the

scheme of higher education in

California, all by reference to

Information of which the federal! courts

may take proper judicial notice pursuant

to Federal Rules of Evidence, Rule 201,

demonstrates that the colleges are state

agencies. The court of appeals so

found, and this Court should hesitate

long before disturbing these factual

findings. (App. B, pp. 24-26. )

First, the state has retained

significant control over the governing

bodies of California community college

districts, and the functions they

perform. As noted, all district

26

property is considered to be held In

trust for the benefit of the state.

Hail v. City of Taft. supra. The

meinbers of the governing boards are

aptly denominated "trustees," California

Education Code section 72230. No

governing board comes into existence

without state approval, see Education

Code sections 74200 et seq..

Second, community college

districts, like the University of

California, are engaged in the

performance of "the essential

governmental function" of providing

higher education to the citizens of the

State of California. The state has a

particular interest in the education of

its population and has made it an

essential function of state government.

The California Constitution, Article |x,

provides for a system of public

27

education, including community college

Gaistricts. Higher education !s a

function In which the state has taken a

tender interest.

Third, and most important, any

Judgment awarded in this case against

the district would be satisfied

ultimately out of state funds. The

California Constitution recognizes that

California's school! and community

college districts are dependent

ultimately on the state treasury for

their funds. Support of the public

schools and public institutions of

higher education is made the first

charge on the state’s revenues, Article

XVI, Section 8 of the California

Constitution. In November of 1988

voters in the State of California

adopted "Proposition 98" which amended

Articles XIIIB and XVI of the California

28

ee

Constitution to assure specific levels

of state funding for schools and

community college districts and to

transfer to such districts state

revenues in excess of the state’s

appropriation Iimit.

The function of the state

lottery, also enacted by the voters by

initiative measure at Government Code

sections 8880 et seg. is the support of

education, see Government Code section

8880.1.

The state’s control over

revenues has always been an integral

element of community college finance.

Although local property taxes were used

to supply the funds to support community

colleges, the state retained authority

over the amount of tax to be co! lected.

The enactment of Articie XIIIA Into the

Constitution through approval by the

29

voters of Proposition 13 in 1978

reinforced this high degree of state

involvement In the funding of California

community colleges. Pursuant to Articie

XIIIA, property taxes are limited to 1%

Of full cash value, and only the

legislature has the authority to

increase taxes. The local taxing

authority was virtually eliminated.

Since the enactment of Article

XI IIA, the state legislature has adopted

a series of finance measures designed to

fulfill its obligation under Article

XVI, Section 8. The first was the

Community College Emergency Finance Act

Of 1978 (Education Code sections 84900

et seq.), which simply supplanted the

substantial loss of local revenues in

fiscal year 1978-79 with funds from the

state general fund. The Emergency

Finance Act has been amended each budget

30

year to refine and clarify the

mechanisms whereby the legislature

appropriates funds to community college

districts.

The funding formulas created by

the state budget in 1981, and by

Chapters 103 and 1178, Statutes of 1981,

require that all ltocally raised revenue

be appropriated by the state into the

total budget available for allocation to

any community college district. The

state determines what each community

college district should be allocated

based on formulas which derive from

average daily attendance in each

Gisetrict. (Education Code sections

84500 et seg.) Each college district is

entitled to receive its allocation of

local and state revenue In accordance

with the formula. The formulas are

calculated to effect a legislative

31

policy of equalization of funding on a

statewide basis.

Pursuant to Chapter 1, Statutes

Of 1984, all community college districts

are now required to levy an enrol iment

fee on their students. This enrol iment

fee is appropriated by the state into

the allocation formula described above,

and does not accrue to the benefit of

the local district, but to the benefit

of the state. The state determines the

amount of the fee, and there Is no loca!

discretion over it.

Clearly, if the.Respondent

District were required to pay a judgment

to Petitioner, it would do ‘<n with funds

which it has pursuant to the state's

authorization. Any judgment in this

matter would be satisfied with state

controlled funds, and would impact state

revenues.

32

The trial court and court of

appea!s correctly found that as a matter

of fact California community college

districts are agencies of the state, and

that Petitioner presented absolutely no

evidence to rebut those facts.

om Plaintiff is Not Entitled To

Iniunctive Relief.

In this case the court of

appeals also concluded that if claims

for monetary relief are barred, then as

to the state and its agencies, i.e., the

District, Injunctive relief is

unavailabie as well. Pugh v. Alabama,

438 U.S. 781, 98 $.Ct. 3057 (1978). See

also Pennhurst State Schoo! and Hospital

v. Halderman, 465 U.S. 89, 100-101, 104

$.ct. 900, 908 (1984). (Jurisdictional

bar applies regardless of the nature of

the relief sought. )

33

This action seeks to compel

Respondent to employ Petitioner as a

permanent certificated administrator.

This is precisely the intrusion on state

sovereignty which the Eleventh Amendment

was designed to avoid. Pennhurst state

h | nd_H | Vv. Hal rman @ @

465 U.S. at 106, 106 3.Ct. @t 2.

(1984). Injunctive rellef compelling

Petitlioner’s employment conflicts

directly with the principles of

federalism that underlie the Eleventh

Amendment. This Court must reject

Petitioner’s invitation to engage in

"government by Injunction."

hl | rY¥.e va mm | t

Stop the War, 418 U.S. 208, 222, 94

$.Ct. 2925, 2933 (1974).

34

E. [he Individual Respondents Are

Immune As Well.

Although the caption of the

Second Amended Complaint In this action

appears to name Dr. Koltal, DOr.

Mulrooney, Or. Washington, DOr. Mcintosh,

Mr. Spaeter, Ms. Palmer and Mr.

Patterson In their individual, as wel!

as official capacities, the Complaint

implicitly makes the judicial admission

that all of the acts alleged were made

by the Defendants within the scope of

their employment. The trial court found

that no acts were alleged either in the

Second Amended Complaint or in

Dr. Mitchell‘s Declaration, other than

those occurring as a resuit of the

Defendants acting in their official

capacity. (Apo. 6. o.:- 26.)

it is well settled that if the

claims for monetary relief against the

35

state agency are barred by the Eleventh

Amendment, then those same claims

against the Individual representatives

of the agency, acting in their official

capacity, are |ikewise barred. Monel |

vy. New York City Dept. of Social

Services, 436 U.S. 658, 690, n.55, 98

S.Ct. 2018, 2035, n.55 (1976). tis ts

because actions against the officer are

in essence actions against the

governmental entity of which the officer

is but an agent. Any monetary award

would be paid with state money. To the

extent the Court believes that the

Defendants have committed any acts in

their individual capacity, they are

entitled to qualified good faith

immunity from liabillty.

CONCLUS ION

Dr. Mitchel!l’s claims are barred as

a matter of law by the Eleventh

36

Amendment. The Ninth Circuit Court of

Appeals properly interpreted California

law. Certiorari must be denied or,

alternatively, the Ninth Circuit's

opinion should be summarily affirmed.

Dr. Mitchell‘s conduct In this Court

and in the courts below must be made the

subject of sanctions in the form of an

award of attorney's fees to the

Respondents.

Dated: 4/28/89 Respectfully submitted,

Ps

VAMCEL IE Dik

WARREN S. KINSLER

General Counsel

Attorney for Respondent

LOS ANGELES COMMUN! TY

COLLEGE DISTRICT