Petition — Congress of Hispanic Educators v. No. 1 (Nos. 75-702, 75-701)

Supreme Court brief1975

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In the Supreme Court of the NOV is 1975

United States |

OctToser TERM 1975

No. 5-702

Coneoress oF Hispanic Epucators, et al.,

Petitioners,

vs.

Scnoo. District No. 1, Denver, CoLorapo, et al.,

Respondents.

Petition for Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit of the

Congress of Hispanic Educators, et al.

Vita S. MarTINEZ

SanForp Jay Rosen

JOAQUIN AVILA

Mary R. Menpoza

Mexican American Legal Defense

and Educational Fund

145 Ninth Street

San Francisco, California 94103

R. Pete Reyes

Mexican American Legal Defense

and Educational Fund

209 Sixteenth Street

Suite 200

Denver, Colorado 80202

Paut Baca

1123 Delaware Street

Denver, Colorado 80204

Attorneys for Petitioners

Congress of Hispanic Educators, et al.

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INDEX

Page

TEES GE AGOTLSESD. « occccccccccss Vv

SS CPs S ccc dec ceéenhesoeses l

I 4 dass cna eacbhe eee eas 4

Questions Presented................ 4

Constitutional Provisions,

Statutes and Regulations

Ss 5 5 3464 one 0886 es 008 8

United States Constitutional

EE Se eee ee 8

United States Statutces.......... 8

Federal Regulations............. 8

CE: ok cheek tee ee ee ees 9

Statement of the Case.............. 10

Findings and Conclusions at

fa | eee 12

Court of Appeals' Review of

the Original Trial............ 17

Supreme Court Review of the

ee 18

Retrial of the De Jure Segrega-

tion Issue on Remand.......... 21

Petitioners’ Intervention After

the District Court's Finding

of System-Wide De Jure Ethnic

DUTOE EGR. c cmc cccccccesecces 22

Page

The Remedy Trial............+.--- 25

The District Court's Decision

Om The BOMOEP. occ ccccccccsses 38

The Cross Appeals From the

District Court's Actions on

PS 6 o0-6nu esses eh bekeseeces 42

Court of Appeals Review of the

District Court's Final Orders

i ee ee ee 44

Reasons for Granting the Writ...... 50

I. . This Case Presents Important

Questions Concerning Judicial

Remedy of Unequal Educational

Opportunities And National

Origin Discrimination Suffered

By Chicano School Children... 50

II. The Decision of the Court

Of Appeals Limiting The Equi-

table Powers of the District

Court To Eliminate De Jure

Racial Discrimination “Root

And Branch" Within Denver's

Public Schools is Inconsistent

With Prior Controlling Deci-

sions of This Court And With

Decisions of Other Circuit

REDS Bi i GS StS d Serra 62

A. The Decision of the Court

of Appeals Conflicts With

Controlling Decisions of

This Court Recognizing

SAS «

iii

Page

Vast Discretion in

the Equitable Powers of

the Trial Courts to Fashion

Such Remedies as are Neces-

sary to Eliminate "Root

and Branch" System-Wide

De Jure Racial Discrimina-

tion in a Single School

ee eee 62

. The Decision of the Court

of Appeals Conflicts With

Decisions of Other Circuits,

Especially With Those of

the United States Court of

Appeals for the Fifth Cir-

cuit, Mandating Detailed

and Comprehensive Tri-

Ethnic School Desegregation

Plans, Including Pians Which

Provide for Bilingual-

Bicultural and Other Com-

pensatory Programs........

The Decision of the Court of

Appeals is Inconsistent With

This Court's Decisions and

Conflicts With the Decisions

of Other Circuit in That The

Court of Appeals Failed to

Give Appropriate Deference

to Guidelines of The Depart-

ment of Health, Education

and Welfare for Implementing

a Desegregation Remedy........

Page

IV. This Case Raises Important

Questions of Whether The

Defendants' Systematic

Failure to Respond to The

Educational Needs of Chicano

Public School Students Denied

Them Equal Educational Oppor-

tunity Under the Fourteenth

Amendment and Title VI of

The Civil Rights Act of 1964,

Which Have Not Been, But

Ought to Be, Resolved By This

Comb. occcovccccececneewebuns 92

Camelwetem. . oc cic sheteeeeseteeee 101

Appendix....... Yoint Separate Appendix

TABLE OF AUTHORITIES

Cases: Page

Arvizu v. Waco Independent

School District, 373 F.

Supp. 1264 (W.D. Tex. 1973),

aff'd in part, rev'd as to

other issues, 4

(th Cir. 1974).........:2-5- 74,79

Brewer v. School Board of the

City of Norfolk, Virginia

397 F.2d 37 (4th Cir. 1968).. 72

Brown v. Board of Education

of Topeka, 347 U.S. 483

EEE OPT POT TTT e 51,63

Brown v. Board of Education of 51,63

Topeka, 349 U.S. 294 (1955)... 64,65

Davis v. Board of School Commis-

sioners of Mobile County, 402

ee 68

Davis v. School District of

Pontiac, Inc., 474 F.2d 46

(6th Cir. 1973), cert. denied,

Sees ED UNE... wc ccc ee 73

Green v. School Board of New 60 ,64

Kent County, 391 U.S. 430 65,66

EE OE 72,82,84

Griffin v. School Board of

Prince Edward County, 377 U.S.

eg . ceece 65

Cases--Continued

Johnson v. San Francisco

Unified School District,

339 F. Supp. 1315 (N.D. Ca.)

petition for stay denied, sub

nom, Guey Hueng v. Johnson,

Z04 U.S. 1215 (1971), remanded,

500 F.2d 349 (9th Cir. I974)... 85

Katzenbach v. Morgan, 384 U.S.

GAR CEGGS). cdccccccescsoenvecece 97,99

Keyes v. School District No. l,

303 F. Supp. 279 (D. Colo.

1969), on remand, 303 F. Supp.

289 (D. Colo. 1969), 313 F.

Supp. 61 (D. Colo. 1970), 313

F. Supp. 90 (D. Colo. 1970),

aff'd in part, rev'd in part,

remanded, 413 U.S. )

on remand, 368 F. Supp. 207,

(D. Colo. 1973), F.2d

(10th Cir. Sept. I6, 1975)

Appendix at pp. 2a-9la........ passim

Lau v. Nichols, 414 U.S. 563 54,30, 84,85,

CUD e oc kvbdedscaevecceeneues 86,92 ,95,96,99

Louisiana v. United States,

. Ree’ 8: .) ears 65

McLaurin v. Oklahoma State

Board of Regents, 339

U.8. GSF CHOSE < vcccececsocesss 100

Milliken v. Bradley, 418 U.S.

FEE CROP RD cc ccccasvesecouceeee 68 ,69,70

Morales v. Shannon, 516 F.2d

SAk CSG GES. BP ebs ccsévenese 74,80,90

vii

Page

Cases--continued:

Morales v. Shannon, 366 F. Supp.

813 (W.D. Tex. 1973), rev'd

in part, aff'd in part, and

remanded with directions, 516

Fea Se Ws 5 cc actacuesex 31,80

Morgan v. Hennigan, 379 F. Supp.

410 (1974) aff d sub nom,

Morgan v. Kerrigan, 509 F. 2d

580 (lst Cir. 1975) hiebe OheRS 72

Morgan v. Kerrigan, F. Supp.

(D. Mass. June 5, 1975) (Civ. Act.

No. 72-911-6), on appeal (1st

Cir. Nos. 75-1184, 75-1194,

75-1197, 75-1212) (argued

Sept. 12, ee ere 79

Plessy v. ‘Ferguson, 163 U.S.

Dee QE 646 diwecueduddeac 18

Serna v. Portales Municipal

Schools, 499 F.2d 1147 (10th 54,81,

ln sds bbs obec cewcan 86,92

Singleton v. Jackson Municipal

Separate School District,

348 F.2d 729 (5th Cir.

EE ey rere 84,85

Swann v. Charlotte-Mecklenburg

Board of Education, 402 U.S.

1 (1971), rehearing denied, 66,67

SS A eee p pe eee 68,84

Tasby v. Estes, 517 F.2d 92

Soe Ge. Meee pcccccccencnces 74

viii

Page

Cases--continued:

United States v. Jefferson

County Board of Education,

380 F. 2d 385 (5th Cir. 1967)

(en banc), cert. denied, 389

U.S. 840 (1967), reh, denied,

389 U.S. 965 (1967)........... 74,75,85

United States v. Jefferson

County Board of Education,

372 F.2d 386 (5th Cir. 1966).. 85

United States v. Midland Inde-

pendent School District, F.2d

(Sth Cir. Aug. 28, 1975)

i PEMereiccuusdeduceneens 74

United States v. Montgomery

County Board of Education,

: FS Se 8 ee 64 ,65,66

United States v. Texas, 447 F.2d

441 (5th Cir. 1971), cert.

denied, 404 U.S. 1016 (1972).. 76,85

United States v. Texas, 342 F.

Supp. 24 (E.D. Tex. 1971),

aff'd, 466 F.2d 518 (5th Cir.

T1972)

United States v. Texas Education

Agency (Austin Independent

School District), 467 F.2d 848

Ses c Ueetbss ethane sceaseeue 50,52,85

Cases--continued

United States v. Texas (Austin

Independent School District),

Civ. No. A-70-CA-80 (W.D. Tex.

August 1, 1973), pending on

appeal, (5th Cir. No. 7E-3301). 79

Williams v. Rhodes, 393 U.S. 23

Dice cebeeadeaeeeuwee uc ké~e cu 99

Wright v. Council of the City

of Emporia, 407 U.S. 451

a er er rr ee 65

Zamora v. New Braunfels Independent

School District, F.2d __

(5th Cir. Sept. 5, 1975)

i | a i 74

Constitution and Statutes Involved:

United States Constitution: 8,10,22,47,52

Amendment XIV............... 69 ,74,75,82,96,

97 ,98 ,99,100

1975 Colorado Bilingual

Bicultural Education Act....9,25,59,95,96

Statutes:

20 U.S.C. §§ 1701, et seq.,

Equal Educational Opportuni- 6,8,23,58,

ties Act of 1974, 88 Stat. 514...81,87,98,99

Be DicG.. § BROERP s cc cccccsecns 4

SP S.B.G. B SPORE cc cccccvevces 10

Page

Statutes--continued:

42 U.S.C. § 1983.....- eee econ 10,22

42 U.S.C. § 1985.....- eee eeeee 10

42 U.S.C. § 198B.... ce eeeeeee 22

42 U.S.C. § 2000d et seq....... 6,8,23,24,47,

48 ,56,75,82,83,86,92

Federal Regulations:

33 Fed. Reg. 4955 (March 23,

rere ser Tree ee 9

35 Fed. Reg. 11595, July 18,

1970. The May 25, 1970

ct aeeeeeneeeeee 9,87,93

45 C.F.R. Part 80--Nondiscrimina-

tion under programs receiving

federal assistance through

the Department of Health,

Education, and Welfare Effectua-

tion of Title VI of the Civil

Rights Act of 1964 § 80.3(b).. 8

Department of Health, Education,

and Welfare--Memorandum for Chief

State School Officers--Subject:

Evaluation of voluntary compli-

ance plans designed to eliminate

educational practices which deny

non-English language dominant

students equal educational

CU + 6 6.0 465.5000 680008% 9

Fed.

regulations--continued:

Department of Health, Education

and Welfare--Task Force Findings

Specifying Remedies Available

for Eliminating Past Educational

Practices Ruled Unlawful Under 9 ,24,30

Lau v. Nichols, Summer 1975.... 56,87,96

Miscellaneous:

U.S. Commission on Civil Rights,

A Better Chance to Learn:

Bilingual-Bicultural Education

(Clearinghouse Publication

Ts Dag GH SOUP cccccesccccecs 56

.S. Commission on Civil Rights,

Mexican American Education

Study--Report I: Ethnic

Isolation of Mexican Americans

in the Public Schools of the

4.) g ) a ere 55

.S. Commission on Civil Rights,

Mexican American Education

Study--Report II: The Unfi-

nished Education (1971)........ 55

.S§. Commission on Civil Rights

Mexican American Education Study--

Report III: Educational Practices

Affecting Mexican Americans in the

Southwest (1972)............... 55

xii

Page

Miscellaneous--continued:

U.S. Commission on Civil Rights,

Mexican American Education

Study--Report IV: Mexican

American Education in Texas:

A Function of Wealth (1972)... 55

U.S. Commission on Civil Rights,

Mexican American Education

Study--Report V: Differences

in Teacher Interaction With

Mexican American and Anglo

Students (1973)....-++eeweeees 55

U.S. Commission on Civil Rights,

Mexican American Study--

Report VI: Toward Quality

Education for Mexican Americans

(See 55,89

eS. ----

The petitioners pray that a writ of

certiorari issue to review the judgment

of the United States Court of Appeals for

the Tenth Circuit entered in this case on

August 11, 1975, but stayed until September

16, 1975, when the Court of Appeals denied

timely cross petitions for rehearing.

OPINIONS BELOW

The August 11, 1975 opinion of the

United States Court of Appeals for the

Tenth Circuit, affirming in part and re-

vising or modifying in part, the final

judgment of the United States District

Court for the District of Colorado, is

unreported. It is set forth in the

Appendix at p. 2at/ The Court of Appeals'

September 16, 1975 Order denying timely

cross petitions for rehearing is set

forth in the Appendix at p. la. The

opinions of the District Court, on

1. A Joint Separate Appendix to this Petition

and to the Separate Petition of the defendants,

School District No. 1, et al., has been filed

with this Court. References to the Joint Separate

Appendix are given as Appendix at p._.

remand from this Court, the first find-

ing the respondents (defendants below)

to have operated an illegal de jure tri-

ethnic segregated school system, and the

second imposing a comprehensive tri-

ethnic desegregation plan, are reported

at 368 F. Supp. 207 and 3380 F. Supp.

673. They are also found in the Appen-

dix at p. 270a and p. 122a respective -

ly. The April 1/7, 1974, Final Judgment

and Decree of the District Court is un-

reported. It is found in the Appendix

at p. 92a.

Earlier decisions of the lower

court, culminating in this Court's

review and decision at 413 U.S. 189

(1973) are not included in the appendix.

However, they are relevant to the

questions submitted for review. The

District Court's 1969 decisions granting

a preliminary injunction against the

defendants are reported at 303 F. Supp.

279 and 303 F. Supp. 289. The District

Court's 1970 opinion and findings after

a trial on the merits, that the defend-

ants had unlawfully denied equal educa-

tional opportunity to black and Chicano

children in de facto segregated schools,

is reported at 313 F. Supp. 61. The

District Court's 1970 decision adopting

a school desegregation and comprehen-

sive education plan for Denver School

District No. One is reported at 313 F.

Supp. 90. The Court of Appeals' 1971

decision in part reversing the District

Court on the ground that unconstitution-

al de jure segregation had not been

proved, as to core city schools, is

reported at 445 F.2d 990. The 1973

decision of this Court, reversing the

decision of the Court of Appeals and

ordering the case remanded to the

District Court for a redetermination,

according to legal standards announced

by this Court in its opinion, of whether

the defendants operated an unconsitu-

tional de jure tri-ethnic segregated

school system, is reported at 413 U.S.

189 (1973) .2/

2. Additional orders and opinions are

described in a footnote to this Court's

opinion. 413 U.S. at 194 n.5.

JURISDICTION

The judgment of the Court of Appeals

was entered on August 11, 1975, in accor-

dance with the Opinion issue on that

date. That judgment was automatically

stayed by the filing of timely cross

petitions for rehearing which were den-

ied by an Order of the Court of Appeals

on September 16, 1975. The jurisdiction

of this Court is invoked pursuant to

28 U.S.C. § 1254(1)

QUESTIONS PRESENTED

1. Where the District Court correct

ly found Denver's public school author-

ities guilty of system-wide de jure

segregation of their Chicano and black

public school students, and further cor-

rectly found that Denver's public school

authorities have otherwise discriminated

against Denver's Chicano and black chil-

dren by providing them with inferior

programs, facilities and faculties, and

generally with unequal educational op-

portunities which, especially as to the

Chicano public school students, results

in large part from the Denver public

school authorities’ systematic failure

to overcome language and cultural barri-

ers, may the District Court require the

Denver public school authorities to im-

plement compensatory education programs,

including bilingual-bicultural education

programs, initially proposed and formu-

lated by the Denver school authorities,

within a court-ordered comprehensive de-

segregation plan which is designed to

convert the unlawfully segregated tri-

ethnic school system "to a unitary system

in which racial discrimination would be

eliminated root and branch"?

2. May the Court of Appeals, in re-

viewing the District Court's comprehen-

sive public school desegregation plan,

overrule the District Court's decision to

require compensatory education, including

bilingual-bicultural education, where the

District Court's order is fully justified

by the record and is fully consistent

with the requirements, including substan-

tial bilingual-bicultural programs, that

the Department of Health, Education and

Welfare would impose on the public school

authorities in desegregation compliance

proceedings under Title VI of the Civil

Rights Act of 1964?

3. Where the District Court's find-

ings of fact, based upon the record made

in numerous proceedings, compel the con-

clusion that the Denver public school

system has failed to take appropriate

action to overcome the language and cul-

tural barriers that impede equal parti-

cipatim, particularly by its Chicano

students in its instructional programs,

should the District Court's order, which

requires the Denver public school system

to provide bilingual-bicultural education

to its Chicano students, be sustained on

the basis of the 1974 Equal Educational

Opportunities Act, 20 U.S.C. § 1703(£)

and Title VI of the Civil Rights Act of

1964, as interpreted in controlling reg-

ulations by the Department of Health,

Education, and Welfare, both of which

make it unlawful for a school district to

fail to take whatever steps are necessary

to overcome such barriers?

4. Where the District Court, based

upon findings and a record made in nun-

erous proceedings, has concluded that

Denver's public school authorities afford

unequal educational opportunities to its

minority group students under the Four-

teenth Amendment, and that Chicano pub-

lic school students suffer educational

disabilities within the Denver public

school system that are both similar to

and different from those suffered by

black public school students, may the

District Court hold that this tri-ethnic

discrimination violates the Fourteenth

Amendment and tailor a compensatory

education remedy that responds not only

to the similarities but also to the

differences in the harm suffered by the

Chicano and black public school children

of Denver?

CONSTITUTIONAL PROVISIONS,

STATUTES AND

REGULATIONS INVOLVED

These materials are so voluminous

that they are included in the Separate

Appendix to this Petition:

UNITED STATES CONSTITUTIONAL PROVISIONS

Fourteenth Amendment, Appendix at

p. 283a.

UNITED STATES STATUTES

20 U.S.C. §§ 1701, 1703, 1706, 1798,

1712 (1974 Equal Educational

Opportunities Act), Appendix at

p. 284a.

42 U.S.C. § 2000d et seq. (Title VI

of the Civil Rights Act of 1964),

Appendix at p. 292a.

FEDERAL REGULATIONS

45 C.F.R. § 80.3(b)(1), Appendix

at p. 30la.

FEDERAL REGULATIONS (cont. )

33 Fed. Reg. 4955, Appendix at

p. 305a.

HEW May 25, 1970 Memorandum

(35 Fed. Reg. 11595), Appendix

at p. 319a.

HEW Summer 1975 Memorandum:

"Evaluation of Voluntary Compli-

ance Plans Designed to Eliminate

Educational Practices Which Deny

Non-English Language Dominant

Students Equal Educational

Opportunity." Appendix at p. 324a.

HEW - "Task Force Findings Specifying

Remedies Available for Eliminating

Past Educational Practices Ruled

Unlawful Under Lau v. Nichols,

Summer 1975."" Appendix at p. 330a

STATE STATUTES:

The Colorado "Bilingual and Bicultural

Education Act" of 1975, Appendix at

Pp. 362a.

STATEMENT OF THE CASE

This is a tri-ethnic public school

desegregation and equal educational

opportunity lawsuit against the Denver,

Colorado School District, the Board of

Education and its Superintendent. The

case concerns the remedy to be imposed

when members of a linguistic and cultu-

ral minority group are found to be the

victims of proven system-wide discrimi-

nation.

The original plaintiffs are children,

including some Chicanos, attending Denver

public schools, who sued through their

parents. Initially, they sued under 42

U.S.C. §§ 1983, 1985, 28 U.S.C. § 1343(3),

(4), and the Fourteenth Amendment of the

United States Constitution to enjoin the

defendants from segregating minority

children and faculty on the basis of

race, and further from unequally alloca-

ting resources, services, facilities and

plant on the basis of race.

The petitioners in this Court are

the Congress of Hispanic Educators (CHE),

Chicano public school students and Chi-

cano parents of children attending Denver

public schools, representing classes of

Chicano teachers, students and parents.

They successfully intervened as plain-

tiffs in the lawsuit after the District

Court, on remand from this Court, found

that system-wide the defendants are op-

erating an unconsitutionally segregated

and discriminatory tri-ethnic school

system. 2/ They intervened to assure

that the remedy plan to be adopted by

the Court adequately rectified the harm

caused to Chicanos by the defendants'

unlawful acts; for the harm suffered

by the Chicanos is similar but not iden-

tical to the harm suffered by blacks.

3. The District Court judge in the original pro-

ceedings in this case, William E. Doyle, has

continued to preside over the case, after remand,

even though he has since been elevated to the

United States Court of Appeals for the Tenth

Circuit.

In this statement of the case, peti-

t’oners will recite only the facts and

proceedings directly bearing upon the

substantive questions for which they

seek a writ of certiorari. The opinion

of this Court, when the case was last

before it, outlines more generally the

fact findings and numerous proceedings

to that date. 413 U.S. at 191-95.

Findings and Conclusions at the

Original Trial

The original trial on the merits of

this case was conducted in February 1970.

See 313 F. Supp. 61. The District Court's

finding that the defendants had unlawfully

segregated the schools in Denver's Park

Hiil section was sustained by this Court

as well as by the Court of Appeals. See

445 F.2d 990; 413 U.S. 189. Issue was

joined in the appellate courts only over

the District Court's characterization

and treatment of the tri-ethnic segrega-

tion that the District Court found to

pervade the public schools in other geo-

graphic areas of Denver, especially in

the core city areas. As this Court

noted, in these earlier proceedings the

District Court incorrectly held that

the plaintiffs "had to make a fresh

showing of de jure segregation in each

area of the city for which they sought

relief." 413 U.S. at 193. Employing

this incorrect legal standard, the

District Court found that, except in the

Park Hill area, the defendants operate a

de facto rather than a de jure segregated

school system.

The District Court concluded that,

by itself, de facto segregation would

give rise to no constitutional violation.

However, as this Court observed, the

District Court found that the racially

segregated core city schools, with pre-

dominantly minority group pupil popula-

tions,

were educationally inferior to the

predominantly "white" or "Anglo"

schools in other parts of the dis-

trict--that is, "separate facili-

ties. . . unequal in the quality of

education provided."

413 U.S. at 193, quoting 313 F. Supp. at

83. On the basis of this finding, the

District Court held that the defendants

. constitutionally "must at

a minimum. . . offer an equal

educational opportunity," 313 F.

Supp., at 83, and, therefore,

although all-out desegregation

"could not be decreed, . . . the

only feasible and constitutionally

acceptable -- the only program

which furnishes anything approach-

ing substantial equality -- is a

system of desegregation and inte-

gration which provides compensa-

tory education in an integrated

environment." 313 F. Supp. 90,96

(1970).

413 U.S. at 193-94. As this Court noted,

"The District Court then formulated a

varied remedial plan to that end which

was incorvorated in the Final Decree."

413 U.S. at 194.

At the original trial to determine

whether the defendants had violated the

plaintiffs' rights, the District Court

received and evaluated considerable

evidence concerning the relative quality

of the educational resources and results

EE oe ee

available at the plaintiffs' target

schools, which were twenty-seven predom-

inantly minority core city and Park

Hill schools. On this evidence, the

District Court found a clear "relation-

ship between racial concentration and

inferiority in achievement and low stan-

dards and consequently low morale."

313 F. Supp. at 77. Focusing more spe-

cifically on schools with "a concentra-

tion of either Negro or Hispano students

in the general area of 70 to 75 percent",

313 F. Supp. at 77, the Court found

that each of these fifteen schools was

characterized by disproportionately

(1) low average scholastic achievement;

(2) less experienced teachers; (3) higher

rates of teacher turnover; (4) higher

dropout rates; and (5) older buildings

and smaller sites."' 313 F. Supp. at 77.

(For the District Court's specific

findings on each of these factors, see

313 F. Supp. at 78-82. Accord: 445

F.2d at 1003.)

Indeed, after further proceedings

to fashion the remedy, the District

Court recited that it

. . . found, in accordance with

the overwhelming weight of the

evidence, that the racial isola-

tion of Negro and Hispano children

which exists in the fifteen schools

designated in this Court's opinion

of March 21, 1970, together with

Elyria and Smedley Elementary

Schools, is the primary factor

producing inequality of educa-

tional opportunity at those

schools and that this inequality

can be remedied only through a

combined program of desegregation,

together with a massive program

of compensatory education.

313 F. Supp. at 97. Based on the exten-

sive record, the District Court also con-

cluded that the only workable remedy for

the defendants’ constitutional violations

had to mandate pupil assignment and com-

pensatory education programs in a single

interrelated and comprehensive plan,

for:

Desegregation in and of itself

cannot achieve the objective of

improving the quality of the edu-

cation in schools. It must be

eae ee oe

carried out in an atmosphere

of comprehensive education and

preparation of teachers, pupils,

parents and the community. It

also must be coupled with an

intense and massive compensatory

education program for the students

if it is to be successful.

313 F. Supp. at 97.

In its plan to provide equal educa-

tional opportunities, the District Court

desegregated the Park Hill and core city

schools. For non-pupil placement com-

ponents of the plan, the Court relied

heavily on the defendants' own propo-

sals, which included compensatory edu-

cation and bilingual-bicultural educa-

tion components. 313 F. Supp. at 99.

Court of Appeals' Review of the

Original Ttal

The Court of Appeals affirmed the

District Court's Final Judgment and

Decree

in all respects except that

part pertaining to the core area

or court designated schools, and

particularly the legal determi-

nation by the court that such

schools were maintained in viola-

tion of the Fourteenth Amendment

because of the unequal educational

opportunity afforded.

445 F.2d at 1007.

The Court of Appeals neither over-

turned nor contested the District Court's

findings that educational opportunity

in the court-designated schools was in

fact unequal relative to the educational

opportunity in Anglo schools in other

parts of the district. See 445 F.2d at

1003-04. The Court of Appeals; however,

rejected the District Court's legal

conclusion that this Court's decision

in Plessy v. Ferguson, 163 U.S. 537

(1896), renders unconstitutional proven

unequal educational opportunity afforded

in a racially segregated school, regard-

less of whether the segregation is de

facto or de jure. 445 F.2d at 1004-05.

Supreme Court Review of the

Original Trial

This Court, in reviewing these

eh et et et ee i lk

earlier proceedings (413 U.S. 189),

decided two points of law pertinent to

the questions presented by this petition.

First, the Court ruled "that the District

Court erred in separating Negroes and

Hispanos for purposes of defining a

‘segregated’ school." 413 U.S. at 197.

Thus, ". . . schools with a combined

predominance of Negroes and Hispanos

[should be] included in the category of

'segregated' schools." 413 U.S. at 198.

Second, the Court concluded that

neither the Court of Appeals nor the

District Court applied the correct legal

_ Standard in determining whether the de-

fendants had "engaged in an unconstitu-

tional policy of deliberate segregation

in the core city schools."" 413 U.S. at

198. This Court, in parts II and III of

its opinion, formulated the controlling

standards for proving unconstitutional

de jure segregation. 413 U.S. at 198-214.

Under the standard set forth in part III,

the District Court's earlier finding,

sustained by the appellate courts, of

intentionally segregative School Board

action in a reaningful portion of the

Denver schoo. system created "a prima

facie case of unlawful segregative

design on the part of school authorities,

and shifts to these authorities the bur-

den of proving that other segregated

schools within the system are not also

the result of intentionally segregative

action." 413 U.S. at 208.

To enable the District Court, on

remand, to reconsider the contested

issues according to the correct legal

standards, this Court modified the

judgment of the Court of Appeals '"'to

vacate instead of reverse the parts of

the Final Decree that concern the core

city schools. ..." 413 U.S. at 214.

Significantly, this Court expressly

reserved its decision on the question of

whether the District Court could order

desegregation and compensatory education

in the absence of a finding of de jure

segregation. 413 U.S. at 214 n. 18.

Retrial of the De Jure Segregation

Issue on Remand

On remand, the District Court con-

ducted an additional evidentiary trial

to determine whether the defendants were

guilty of unconstitutional system-wide

segregation. After a full hearing,

augmenting and not displacing the earlier

record in the case, the District Court

concluded, in a Memorandum Opinion and

Order dated December 11, 1973, that the

Denver system is a tri-ethnic school

system which is unlawfully segregated.

368 F. Supp. 207, Appendix at p. 270a.—+/

4. Thus the trial court determined, under

part II of this Court's opinion, 413 U.S. at

198-205, that the Park Hill area and schools

were not separate, independent or unrelated

to the rest of the school district. The District

Court, after considering the School District's

evidence that its ‘Park Hill" actions had no

effect elsewhere, rejected the evidence as

“conclusory and . . . lacking in substance," and

held that "Plaintiff's evidence established that

racial segregation in Park Hill has substantial

Petitioners’ Intervention After the

District Court’ rts Finding oy System-

Wide De Jure Tri-Ethnic gregation

On January 11, 1974, the District

Court granted a Motion to Intervene as

Parties Plaintiffs, which had been filed

on January 4, 1974, by the Congress of

Hispanic Educators (CHE) and a group of

Chicano parents and children suing on

behalf of classes including Chicano

teachers, parents and students who would

be affected by the desegregation of the

school district.

The Complaint in Intervention al-

leged deprivation of rights secured by

the "Fourteenth Amendment to the Consti-

tution and 42 U.S.C. §§ 1983, 1988,

(footnote cont.)

effects on the schools outside the area."' 368

F. Supp. at 210. The District Court stated:

"The conclusion is therefore inescapable that

the Denver system is a dual system within the

Supreme Court's definitions.’ Ibid.

2000c-8 and 2000d"—2/ (Comp. 41.), includ-

ing discrimination by the defendants in

the hiring, promotion, recruitment, as-

signment and selection of Hispano teach-

ers, staff members and administrators

(Id. at 4423, 25, and 26). Additionally,

the Intervenors incorporated the allega-

tions of unequal educational opportunity

set forth in the plaintiffs' Complaint.

They also specifically alleged that

Chicanos constitute a separate identifi-

able class within the Denver school sys-

tem. (Id. at 413.)

a. During the pendency of this appeal, Congress

enacted 88 Stat. 514, 20 U.S.C. §§ 1701 et seq.

(Supp.), the 1974 Equal Educational Opportunities

Act. See Appendix at pp. 284a - 9la. These

provisions were brought to the attention of the

Court of Appeals.

As the court's decision was being rendered,

the United States Department of Health, Education,

and Welfare issued new regulations implementing

Title VI of the Civil Rights Act of 1964 as it

bears upon educational discrimination against

minorities suffering from English language

The Intervenors' prayer for relief

sought, inter alia, to restrain defend-

ants from

(a) utilizing teaching methods,

curricula, and other policies

that discriminate against

intervenors and their class;

(b) operating the defendant dis-

trict in a fashion which vio-

lates Title VI of the Civil

Rights Act of 1964, 42 U.S.C.

§ 2000d, and HEW Guidelines

promulgated pursuant to 42

U.S.C. § 2000d-1;

(footnote cont.)

disabilities. These regulations, which are

about to be published in the Federal Register,

and have been transmitted to each state's Chief

State School Officer (Appendix 324a-29a), are

entitled: "Task Force Findings Specifying Reme-

dies Available for Eliminating Past Educational

Practices Ruled Unlawful Under Lau v. Nichols."

These regulations are reproduced in the Appendix

at pp. 330a-6la.

During the pendency of the appeal, the

Colorado Legislature also took action relevant to

the issues in this case. They enacted a compre-

hensive law, apparently consistent with the new

* * *

(e) denying equal educational

opportunity in any other

manner to Chicano students

on the basis of language,

culture, race, color or

ethnic origin;

Id. at 729 (a), (b), (e).

The Remedy Trial

The District Court conducted a rem-

edy trial from February 19, 1974, to

March 4, 1974. At this trial the par-

ties' proposed plans were introduced and

evaluated, and additional evidence was

received by the Court. The Intervenors

participated in the remedy trial, and

filed their plan, which included the

Cardenas Plan, as well as more detailed

specifics provided by CHE in consultation

with Dr. Jose Cardenas, the plan's draf-

ter, from its more intimate knowledge

(footnote cont.)

HEW regulations, entitled the "Bilingual and

Bicultural Education Act" of 1975. This statute

is reproduced in the Appendix at pp. 362a - 4l6a.

of particular problems within the Denver

school system.

As directed by the District Court,

the defendants filed a plan, entitled,

tellingly enough: "A Plan for Expanding

Educational Opportunity in the Denver

Public Schools." (Defendants' X-YA.)

This plan was not a comprehensive deseg-

regation plan, for it did not provide for

much pupil assignment; it was more of a

comprehensive equal educational oppor-

tunity plan, featuring extensive com-

pensatory education components designed

to redress the proven unequal educational

opportunities received by minority stu-

dents. Notably, the portion of the plan

proposing "Integration of the Student

Body Through New Programs", included a

"Multi-Cultural Education Program"

designed "to develop in students greater

self-esteem, pride in cultural heritage,

and positive feelings and respect for

other cultures .. ." (Defendants' X-YA,

§ III, pp. 18, 19.)

One section of the plan was devoted

exclusively to "Integration Through

Curriculum, Programs, Activities, and

Related Improvements." The proposals

included one entitled: :

Bilingual-Bicultural Education

Through these programs,

school personnel address the

needs of bilingual-bicultural

students to help them understand

and appreciate different racial

and cultural heritages. Programs

are geared to help minority stu-

dents find their cultural identi-

ty. The objectives of these

programs are to:

provide language stimula-

tion and experience designed

to facilitate maximum growth

in the use of the English

language;

foster a feeling of adequa-

cy in each student, to help

him cope with an English-

speaking society;

help each student develop

self-direction, the ability to

make appropriate practical

decisions, and the ability to

communicate effectively with

others;

maintain a pride in one's

native language and culture,

and share one’s cultural heri-

tage with others.

Skills and competencies of teach-

ers working with bilingual-

bicultural students are developed

through in-service programs.

Minority History and Culture

Additional new programs in

minority history and culture are

planned for students whose cultural

heritage is different from the

school culture. The objective of

these programs is to bridge cultur-

al barriers and meet language

needs to make regular school

offerings more productive for

each student.

(Defendants' X-YA, § IV, p. 20) (Emphasis

in original).

The Intervenors and the original

plaintiffs cooperated in the formulation

and presentation of their plans. The

plaintiffs concentrated on preparation

of the pupil placement components of the

comprehensive desegregation plan. (E.g.,

Plaintiffs' X-900, 900(a) - 900(i).)

The Intervenors prepared the other equal

educational opportunities components of

the comprehensive desegregation plan,

stressing multi-cultural, bilingual and

other compensatory education approaches.

(MALDEF X-1.)

The Intervenors' plan was developed

by Dr. Jose Cardenas, an experienced

educator familiar with the problems of

Chicano and other minority children

attempting to cope with an educational

system directed toward middle class

Anglo children. (MALDEF X-1; Tr. 979-

81, )2/

6. Dr. Cardenas has developed his analysis of

programs to provide equal educational opportuni-

ties for minority group children in part through

his past work with HEW's Office of Education.

He has been used extensively in several school

districts as an educational consultant for HEW

in its compliance reviews. For HEW's use he has

developed plans quite similar to the plan adopted

by the District Court. Such plans have been suc-

cessfully implemented in numerous school districts,

Dr. Cardenas found that through its

system-wide tri-ethnic discrimination,

the Denver school system consistently de-

nied equal educational opportunities to

minority group children. He specifically

testified that these deprivations were

amply reflected in statistics that show,

relative to white or Anglo students:

(a) a higher number and percentage of

(footnote cont.)

including, for example, the Beeville Independent

School District, Texas and the El Paso Indepen-

dent School District, Texas (Tr. 1063). He was

also a member of the HEW Task Force that form-

lated HEW's recent regulations under Title VI,

entitled: ‘Task Force Findings Specifying Reme-

dies Available for Eliminating Past Educational

Practices Ruled Unlawful Under Lau v. Nichols."

Appendix at pp. 330a - 6la.

Federal district judges, in addition to

Judge Doyle, have used his expertise in fash-

ioning comprehensive desegregation plans. For

example, in United States v. Texas, 342 F. Supp.

24, 28 (E.D. Tex. 1971), aff'd, 466 F.2d 518

(Sth Cir. 1972), the District Court relied exten-

sively on Dr. Cardenas in formulating a compre-

Denver's minority children assigned to

special education, (b) a higher level of

retention rates (failure to pass) for

minority children, (c) higher drop-out

rates for minority children, and (d)

higher rates of under-achieving by mino-

rity children, especially in predominant-

ly minority schools. (Tr. 984-87; 1141-

43; MALDEF X-9.) Dr. Cardenas was also

familiar with the District Court's prior

fact findings as to the inferiority of

the minority schools, viewed from the

(footnote cont.)

hensive plan very similar to the one adopted by

Judge Doyle in the instant case. Additionally,

Dr. Cardenas testified as an expert in both HEW

compliance proceedings and court proceedings con-

cerning denial, by the Uvalde (Texas) Independent

School District, of equal educational opportunity

to Chicano students. (Tr. 1024.) See, Morales v.

Shannon, 366 F. Supp. 813 (W.D. Tex. 1973), rev'd

in part, aff'd in part, 516 F.2d 411 (5th Cir.

1975); Matter of Board of Education of Uvalde

Independent School. District, Administrative pro-

ceedings, Department of Health, Education and

Welfare (Docket No. S-47, July 24, 1974). (Final

Decision of Reviewing Authority. )

perspective of objective data showing, by

comparison with Anglo schools, substan-

tially lower levels of academic achieve-

ment, inexperienced faculty, higher fac-

ulty turnover, and lower academic stand-

ards. (313 F. Supp. 61 (D. Colo. 1970).)

He relied upon these findings as further

evidence of the defendants’ systematic

denial of equal educational opportunity

to minority group children.

The school district had discovered

several hundred Hispano children who were

unable to speak or understand English,

i.e., they were monolingual in Spanish;

and the school district had established

special programs for these children.

These programs were directed toward teach-

ing English as a second language; and

as soon as this was accomplished, Spanish

was dropped and the child was put into

regular classes. (Defendants' X-YA, App.

F; Tr. 565-73.)

Dr. Cardenas found such programs

deficient for several reasons. They did

not reach the many Chicano children,

estimated by CHE to number some 4,000

(MALDEF X-2), who, although perhaps able

to speak English, could understand Span-

ish better than English. There were no

bilingual programs for such children.

Secondly, Chicano children enrolled in

the special "English as a second lan-

guage" program received no instruction in

academic subjects other than in English;

thus, their learning of arithmetic, social

studies, science, and other academic sub-

jects was precluded until they learned

English. (Tr. 1007.) By that time the

children were behind in these subjects.

By contrast, Dr. Cardenas proposed a bi-

lingual program in which the monolingual

Spanish and Spanish-dominant child was

also taught these other academic subjects

in Spanish. (Tr. 1001-10.)

Thirdly, even for Chicano children

who could speak and understand English

as well as, or even better than, Spanish,

as the statistical and other evidence

demonstrated, the school system directly

impaired their ability to secure an edu-

cation on an equal basis with Anglos.

(Tr. 1006.) Dr. Cardenas maintained that

the Denver school system's refusal to

recognize the Chicano child's heritage

and culture by offering the option of

bilingual-bicultural programs to such

children was extremely harmful to them.

This failure of the school system deni-

grated the Chicano child's culture and

treated it as less worthy, resulting in

a lower self-image for the child which

severely limited his or her educational

opportunities.

Dr. Cardenas' conclusions resulted

from a thorough study of the various ways

in which the Denver school system's edu-

cational approach to the minority child

was incompatible with minority children,

and therefore denied them equal educa-

tional opportunities. Thus the system

failed to recognize five attributes of

minority children: culture, language,

poverty, mobility and perceptions. (Tr.

991-1019.) Dr. Cardenas also discerned

ten different general types of activities

wherein the system failed to take these

attributes into account: educational

philosophy, policies, the scope and se-

quence of courses, curriculum, staffing,

co-curricular activities, student person-

nel services, non-instructional needs,

community involvement and evaluation.

(Tr. 1020-23.)

Dr. Cardenas stressed that it is

most important to appreciate the fact

that all of the racially discriminatory

deficiencies of the Denver school system

are interdependent and interrelated.

Elimination of racial discrimination with-

in that school system requires a comp re-

hensive, overall approach to the tri-

ethnic problems. They cannot be treated

separately, if the goal of legal treat-

ment is establishment of a unitary school

system in which equal educational oppor-

tunity is available to all races and

groups. (Tr. 1015; 1022.)—2/ Notably,

7. The Addendum to the Cardenas Plan was dev-

eloped by the members of CHE as a suggested appli-

cation of Dr. Cardenas' principles to the parti-

cular needs in the Denver public schools. (MALDEF

X-2; Tr. 1030-41.) The Addendum contains over

Dr. Cardenas also testified that such a

comprehensive remedy could and should be

implemented in a fully integrated set-

ting. (Tr. 1135-39.)

Dr. Cardenas’ evaluation of the

needs and deficiencies resulting from the

Denver school system's racial discrimina-

tion, as well as his proposals for a

workable solution, were largely uncontes-

ted by the defendant's evidence. As

noted by the District Court,

Most of the opposition to the

Cardenas plan generated during

the evidentiary hearings went to

the practicality of the plan and

to problems of its implementation

rather than to the educational

principles espoused.

380 F. Supp. at 696, Appendix at p. 206a.

(footnote cont.)

200 detailed suggestions regarding implementa-

tion, in all of the ten general areas of activi-

ty identified by Dr. Cardenas.

6 a ee

The Cardenas Plan was extensively

discussed by witnesses for the defendants

as well as those testifying on behalf of

the Congress of Hispanic Educators. Each

witness supported in principle the objec-

tives of the Cardenas Plan and the Adden-

dum. For example, although the Superin-

tendent of Schools, Dr. Louis Kishkunas,

did express some reservations, he |

testified that:

I found as I read the plan

that most of the conclusions that

Dr. Cardenas came to replicated

or duplicated the conclusions that

I came to a long time ago. .. I

am sure that many of the conclu-

sions he came to, many of the

facts that he states are applica-

ble to the Denver situation.

(Tr. 197.) Dr. David Roscoe Davidson,

Assistant Superintendant of the Educa-

tional Division, also supported the

Cardenas Plan and the Addendum in his

testimony. (Tr. 2273-74.)

The testimony in support of the

Cardenas Plan demonstrated without contra-

diction that similar compensatory educa-

tion and bilingual-bicultural programs

have operated with marked success in re-

dressing unequal educational opportuni-

ties, especially in a desegregation con-

text, in other varied school districts

throughout the country. (Tr. 1023-29;

1035-36; 1060-64; 1077-78; 1163-1217.)

Moreover, the bilingual-bicultural conm-

ponents of the Cardenas Plan were, for

the most part, consistent with a program

already operated by the defendants at

the Del Pueblo Elementary School.

(Tr. 1150-62.)

The District Court's Decision on

The Remedy

After the remedy trial, the District

Court prepared an extensive Memorandum

Opinion and Order evaluating the various

plans before it and articulating the

plan it adopted. 380 F. Supp. 673-726,

Appendix at pp. 122a-269a (April 8, 1974).

The court clearly stated that the plan

it intended to fashion was designed to

remedy the violations it had found on all

of the evidence in the case and at each

proceeding:

The educational opportunity

in the minority schools has been

proven in our present trial as

well as in previous trials to

be inferior to that in the major-

ity schools.

380 F. Supp. at 682, Appendix at p. 156a.

Finding the original parties’ plans

to be inadequate, 380 F. Supp. at 682-83,

Appendix at pp. 155a-58a, the court for-

mulated its own comprehensive plan. For

the pupil placement elements, it relied

on proposals prepared by Dr. John A.

Finger, a court appointed expert, 380 F.

Supp. at 628-94, Appendix at pp. 178a-

98a, and for bilingual-bicultural and

other compensatory education components,

it relied on the Intervenors' plan, 380

F. Supp. at 680-81, 692, 694-96, 697;

Appendix at pp. 153a-55a, 189a-9la, 199a-

207a, 210a.

In adopting the Cardenas Plan, the

District Court observed that it was

. mindful that meaningful de-

segregation must be accompanied

by some appropriate alterations

of existing educational programs

in order to adequately deal with

new problems which will arise in

the operation of desegregated

rather than segregated schools.

The type of educational pro-

gram proposed by Dr. Cardenas

is particularly appropriate for

the Denver school system because

of the city's and region's long

tradition of Mexican and Chicano

influences. Additionally, Colo-

rado law specifically encourages

the use of bilingual and multi-

cultural programs such as those

proposed by the Cardenas plan to

effect an enriching and non-

disruptive transition of minority

children from their dominant lan-

guage to the effective use of

English.

380 F. Supp. at 695-96; Appendix at pp.

203a-05a.

Finding that the Del Pueblo Elemen-

tary School was already operating a bi-

lingual-bicuitural program on a model or

pilot basis that was very consistent

with the Cardenas Plan, 380 F. Supp. at

692, 696, Appendix, at pp. 190a, 206a-07a,

the court adopted that program as a model

(380 F. Supp. at 692, Appendix at p. 190a)

and directed "that a prompt start should

be made in a pilot program for implemen-

tation and utilization of the Cardenas

plan, or something similar to it, in

Denver" 380 F. Supp. at 696, Appendix

at p. 206a. The court proposed to main-

tain the existing program at Del Pueblo,

and to extend it on a pilot basis to one

senior high school, one junior high school

and two additional elementary schools.

(380 F. Supp. at 692, 696, Appendix at

pp. 190a, 206a. )8/ In further stating

the reasons for adopting this approach,

it found:

: . that most of our Spanish

surnamed or Mexican-American chil-

dren are able to speak English

and thus teaching in the Spanish

language would not be necessary.

Nevertheless, the Spanish langu-

age is a more natural one for a

great many Spanish surnamed or

8. Under the District Court's Final Judgment

and Decree, the program was initially ordered

extended to a third elementary school as well.

Appendix at p. 107a.

Mexican-American students.

Thus extensive curriculum offer-

ings in the Spanish language and

in Spanish culture would be appro- .

priate in the mentioned schools.

380 F. Supp. at 692, Appendix at p. 19la.

The District Court's Final Judgment

and Decree, Appendix at pp. 92a-122a,

ordered, inter alia, that:

The defendants shali further

develop a bilingual-bicultural

educational program in accordance

with the model presented by Dr.

Jose Cardenas or a plan substan-

tially and materially similar

thereto and incorporating to the

extent feasible the proposals

set forth in the Addendum to the

Cardenas Plan.

Appendix at p. 106a (emphasis added).

The Cross Appeals From the District

Court's Actions on Remand

Cross appeals were taken from var-

ious components of the Final Judgment

and Decree by the plaintiffs and the de-

fendants. Basically, the plaintiffs con-

tended that the District Court's plan

provided for insufficient integration

in that it substituted, to an undue ex-

tent, part time integration for full

time integration, and needlessly left

five minority schools segregated; it

needlessly placed a disproportionate bur-

den of changed school assignments on mi-

nority children; and it was less effec-

tive than the plaintiffs’ plans. The

defendants challenged the District Court's

findings that they were guilty of system-

wide de jure segregation. They also

challenged the court's plan basically

on the grounds that the court unlawfully

directed that specific degrees of racial

balance be attained; that imposition of

the Cardenas bilingual-bicultural plan

was an unwarranted intrusion into matters

of educational policy and curriculum; and

that the court unlawfully ordered the

defendants to adopt an affirmative action

employment plan. Both the original plain-

tiffs and the Intervenors, CHE, opposed

the defendants’ assault on the District

Court's plan as appellees.

Court of Appeals Review of the

District Court's Final Orders

on Remand

The Court of Appeals affirmed in

part and reversed in part, and remanded

the case for further proceedings. (App-

endix at p. 2a.) The Court of Appeals

affirmed the District Court's findings

and conclusion that the defendants opera-

ted a system-wide de jure tri-ethnic seg-

regated school system. (Appendix at pp.

18a-19a.) The Court of Appeals also

sustained the District Court's use of

Anglo-minority enrollment percentages as

guidelines in shaping its remedy (Appen-

dix at pp. 32a-33a), and its general re-

liance on Dr. Finger's pupil reassignment

proposals (Appendix at pp. 43a to 45a).

The Court of Appeals further ruled that

the District Court's pupil reassignment

plan did not impermissibly burden minor-

ity students (Appendix at pp. 44a-45a)

and upheld its faculty and staff deseg-

regation plan (Appendix at pp. 62a-65a).

The District Court was reversed in

three areas. First the Court of Appeals

held the part-time elementary school

pairing components of the District Court's

plan were constitutional! inadequate.

(Appendix at pp. 37a-43a.) Second, the

Court of Appeals ruled that the District

Court improperly left five predominantly

Chicano schools segregated under its

guidelines. (Appendix at pp. 45a-48a.)2/

Third, the Court of Appeals reversed the

District Court's imposition of the

9. The Court of Appeals concluded that ‘The

[district] court justified the cotinued segre-

gation of students in four of these schools--on

grounds of the schools’ inaccessibility and the

institution or confirmation of bilingual-bicul-

tural programs.'' (Appendix at p. 46a.) The

Court of Appeals ruled that "bilingual education

. . . is not a substitute for desegregation. Al-

though bilingual instruction may be required to

prevent the isolation of minority students in a

predominantly Anglo school system [citations

omitted], such instruction must be subordinate

to a plan of school desegregation."' (Appendix

at p. 47a.) That portion of the case was remanded

Cardenas Plan. (Appendix 48a-60a. )+2/

The Court of Appeals ruled that im-

position of the Cardenas Plan could not

be justified on the grounds (1) that it

"is necessary to effectuate meaningful

(de]segregation in the [defendants' ]

schools" (Appendix at p. 5la); (2) that

it corrects the defendants’ proven fail-

(footnote cont.)

for a determination of whether the contimued se-

gregation of students at the contested schools

could be justified on acceptable grounds.

The Intervenors have never taken the posi-

tion that bilingual-bicultural education is a

substitute for desegregation. Much to the om-

trary, they have always taken the position that

the Cardenas Plan can and should be implemented

within a fully integrated setting. (See, e.g.,

Tr. 1135-39.) Indeed, it has always been the

Intervenors' position that both pupil placement

and compensatory education components are neces-

sary to achieve constitutionally sufficient cm-

version of a de jure segregated school system

into a lawful unitary system.

10. Om grounds similar to its rejection of the

—— -

ure to provide an equal educational op-

portunity, which "constitutes a separate

violation of the Fourteenth Amendment

."" (Appendix at p. 52a); or (3) that

it corrects the defendants’ separate vio-

lation of Title VI of the Civil Rights

Act of 1964, 42 U.S.C. §2000d, and the

regulations promulgated pursuant to it,

"in failing to provide language instruc-

tion to substantial numbers of non-English

speaking children enrolled in public

schools" (Appendix at p. 58a).

Apparently limiting the factual

predicates for the District Court's Final

Decree to the record and findings subse-

quent to this Court's remand, and there-

fore precluding reliance on the earlier

evidence and findings, the Court of

Appeals held that the District Court's

remedy "goes too far" (Appendix at p. 54a),

in that it went beyond "the proven con-

(footnote cont.)

Cardenas Plan, the Court of Appeals also reversed

the District Court's order consolidating East and

Manual High Schools. (Appendix at pp. 60a-62a.)

stitutional violation" of de jure segre-

gation (Appendix at p. 53a), and unduly

invaded local control which "permits cit-

izen participation in the formulation of

school policy and encourages innovation

to meet particular local needs" (Appen-

dix at p. 55a). Further, the Court of

Appeals ruled plaintiffs and Intervenors

had proved no denial of equal educational

opportunity, amounting to a somewhat in-

dependent violation of the Fourteenth

Amendment. (Appendix at p. 56a.)

Finally, the Court of Appeals concluded

that there is no "support [in the record]

for a violation of section 601" of the

Civil Rights Act of 1964 because in the

1973-74 school year, "school authorities

identified 344 students in the system

with language difficulties arising from

their Spanish-speaking backgrounds",

"determined that 251 of these students

needed special help in acquiring language

skills necessary to function satisfacto-

rily in school," and operated "a number

of programs . . . directed to the needs

of these students." (Appendix at p. 58a

n. 22,)il/

Despite, and somewhat in contradic-

tion to these conclusions, the Court of

Appeals remanded "for a determination of

the relief, if any, necessary to insure

that Hispano and other minority children

will have the opportunity to acquire pro-

ficiency in the English language."

(Appendix at p. 59a.) Im a separate con-

curring opinion, Judge Seth indicated

that he would have remanded "for a com-

plete reconsideration of the remedy."

(Appendix at p. 83a.)

11. The Court of Appeals completely ignored

Intervenors' evidence, in the Record, that these

programs do not reach the many Chicano children,

estimated by CHE to number some 4,000 (MALDEF

X-2), who could understand Spanish better than

English, even though they might be able to speak

English. Nor did the Court of Appeals consider

the Intervenors' evidence that the existing pro-

grams were otherwise deficient. (E.g. Tr. 1001-10.)

REASONS FOR GRANTING THE WRIT

I. THIS CASE PRESENTS IMPORTANT

QUESTIONS CONCERNING JUDICIAL

REMEDY OF UNEQUAL EDUCATIONAL

OPPORTUNITIES AND NATIONAL

ORIGIN DISCRIMINATION SUFFERED

BY CHICANO SCHOOL CHILDREN.

this lawsuit comes before the

Court freighted with a significant

history. In its previous opinion

in this case, the Court relied upon

findings of the United States

Commission on Civil Rights and the

District Court to conclude that

Chicanos in the Southwest ‘suffer

from the same educational inequities

as Negroes and American Indians."

413 U.S. at 197. See, e.g., United

States v. Texas Education Agency

(Austin Independent School District),

467 F.2d 848, 852 (5th Cir. 1972). Further-

more, in that opinion the Court estab-

lished the preliminary rules for

determining when educational inequal-

ities are unconstitutional with

respect to Chicano students. Thus,

in its constitutional impact and its

precedential significance, the Keyes

decision was as important for Chicano

students as this Court's decision in

Brown v. Board of Education of Topeka,

347 U.S. 483 (1954) (Brown I) was for black

Students. For Chicano people, and

many other linguistic and national

origin minority groups, the instant

proceedings are analogous to Brown

11 in that this Petition places

before the Court important questions

concerning the remedy to be imposed

once a trial court finds that a school

system unconstitutionally segregates

and discriminates against Chicanos.

This case presents the question of

whether, in fashioning remedies for

proven constitutional violations of the

rights of Chicanos and other language

minorities, school authorities and

trial courts should take account of

the differences, as well as the simi-

12. Brown v. Board of Education of Topeka,

349 U.S. 294 (1955).

larities in the educational inequal-

ities that Chicanos, as opposed to

blacks, suffer.

As the Fifth Circuit recently

recognized, Chicanos constitute a con-

stitutionally identifiable and separ-

ate national origin minority, and

"[t]hey are as much entitled to the

benefits of the Equal Protection

Clause of the Fourteenth Amendment as

blacks or whites." Hence, courts should

“give effect to the legal consequences

of the.. . . recognition of Mexican-

Americans as a separate minority

group." United States v. Texas Educa-

tion Agency (Austin Independent School

District), 467 F.2d 848, 852 (5th Cir.

1972).

The case for differential treat-

ment is compelling in the instant

lawsuit. For, as the District Court

found, Chicanos and not blacks consti-

tute the largest constitutionally iden-

tifiable minority in the Denver school

system.

The scope and magnitude

of the problem is evidenced

by the numbers and ethnic

origins of students as of

September 28, 1973. In the

elementary schools there were

46,060 students, including

17.6% black, 27% Spanish-sur-

named and 54.1% Anglo. The

total enrollment in the junior

high schools on the same date

was 21,018, including 18.5%

black, 24% Spanish-surnamed,

and 56.6% white. The senior

high schools totaled 20,542.

The percentage of black

students was 17.3%, that of

Spanish-surnamed students was

17.8% and that of Anglo stu-

dents was 63.8%.

380 F. Supp. at 674. If anything,

the deprivations suffered by Chicanos

within the Denver school system are

even greater than those suffered by

blacks.

This Court has begun to recognize

the differences in the unequal educa-

tional opportunities suffered by lang-

uage and national origin minorities as

opposed to blacks. The Court has held,

albeit in a statutory rather than a

constitutional context, that "there is no

equality of treatment [of members of lang-

uage minority groups] merely by providing

students with the same facilities, text-

books, teachers, and curriculum; for stu-

dents who do not understand English are

effectively foreclosed from any meaningful

education." Lau v. Nichols, 414 U.S. 563,

566 (1974). Accord: Serna v. Portales

Municipal Schools, 499 F.2d 1147, 1153

(10th Cir. 1974).

Other governmental agencies have

begun to recognize the critical relevance

of these differences between unequal edu-

cational opportunity suffered by Chicanos

(and other language and national origin-

minorities) and unequal educational oppor-

tunity suffered by blacks. For example,

in earlier proceedings, this Court relied

upon reports of the United States Civil

Rights Commission to find that Chicanos

"suffer from the same educational inequal-

ities as Negroes and American Indians."

*413 U.S. at 197.

The two reports relied upon have now been

augmented by four others, each showing that

Chicanos also have unique problems of edu-

cational inequality that require different

remedies /3/

An even more recent study has now

been published by the Civil Rights Commis-

sion compellingly arguing that:

Many language minority children

are handicapped by poverty and

discrimination before they even

enter school, and although lang-

uage is only one obstacle which

they face in attempting to conm-

plete an education, it is a

major one. Bilingual-bicultural

education can remove much of the

13. U.S. Commission on Civil Rights, Mexican-

American Education Study--Report I: Ethnic Isola-

tion of Mexican Americans in the Public Schools

of the Southwest (1971); Report II: The Unfinished

Education (1971); Report III: Educational Practi-

ces Affecting Mexican Americans in the Southwest

(1972) ; Report IV: Mexican American Education In

Texas: A Function of Wealth (1972); Report V:

Differences in Teacher Interaction With Mexican

American and Anglo Students (1973); Report VI:

Toward Quality Education for Mexican Americans

(1974)

burden for those children and

thus put completion of an edu-

cation within their grasp.

. Bilingual-bicultural

education . .. can provide

one of the best means for

diminishing such [ethnic]

separation. Without full

economic and social opportun-

ity, language minority groups

will almost certainly remain

isolated, outside the Ameri-

can mainstream.

U.S. Commission on Civil Rights, A Better

Chance to Learn: Bilingual-Bicultural Edu-

cation (Clearinghouse Publication No. 5l,

May 1975), p. 141.

The Department of Health, Education

and Welfare Office of Civil Rights recently

published new guidelines on bilingual-bi-

cultural education entitled:"Task Force

Fundings Specifying Remedies Available for

Eliminating Past Educational Practices

Ruled Unlawful Under Lau v. Nichols."

Appendix at pp. 330a-6la. These guide-

lines constitute a definitive interpretation

of Title VI of the Civil Rights Act of 1964. In the

guidelines, HEW has recognized the need for

development of comprehensive plans which

require extensive investigation and reme-

dies by school boards. For example, the

guidelines provide for language identifica-

tion, diagnosis, program selection and elec-

tion, teacher requirements, racial/ethnic

identification of schools and classes, noti-

fication to parents and students, and

evaluation.

The panel of the Tenth Circuit in the

instant case appears to have understood

that a school district's obligation under

Title VI is limited to provision of pro-

grams that meet the English language train-

ing needs of linguistic minority group stu-

dents who cannot function even minimally

in English. By contrast, the new HEW regu-

lations mandate development of a variety

of bilingual-bicultural programs for a

continuum of language and national origin-

minority group students to be placed in one

of the following categories by language:

A. Monolingual speaker of a lang-

uage other than English;

B. Predominantly speaks a language

other than English;

C. Bilingual (speaks both English

and another language) ;

D. Predominantly speaks English;

E. Monolingual speaker of English.

Appendix at pp.333a-34a.

Furthermore, Congress has now specif-

ically declared that "the failure by an

educational agency to take appropriate

action to overcome language barriers that

impede equal participation by its students

in its instructional programs" (20 U.S.C.

§ 1703(f)(Supp.), Appendix at p.290a), con-

stitutes a litigable denial of equal edu-

cational opportunity. See 20 U.S.C. § 1706

(Supp.).

The State of Colorado, too, has now

recognized that its language and national

origin minorities require special attention

to assure them equal educational opportunity.In June of

1975, Colorado enacted a Bilingual

and Bicultural Education Act, which

mandates comprehensive Bilingual and

Bicultural education programs for

every school having 50 or more stu-

dents, or at least having 10% of

the student body, in grades kinder-

garten through third grade with

linguistically different skills.

Appendix at p. 383a.

The Tenth Circuit rejected the

compensatory education components of

the District Court's plan due to its

misreading of this Court's directions.

It believed that this Court directed

that Chicanos and blacks be treated

precisely alike, and that neither

should be entitled to compensatory

education, in the course of converting

a segregated school system into a

unitary one. The fundamental error of

the Tenth Circuit is revealed in the

separate concurring opinion of Judge

Seth, who observed:

If there is segregation

there imposed by the Board,

as the Supreme Court indi-

cates there is, it must

receive the same treatment

as in the black schools

The Supreme Court in its

opinion ordering remand has

directed that these students

and the black students be

considered together, and for

this reason it must be done.

Appendix at p. 82a.

This Court, however, never stated

that Chicanos and blacks should be

treated as though they were the same for

purposes of converting a de jure tri-

ethnic segregated school system "to a

unitary system in which racial discrim-

ination would be eliminated root and

branch." Green v. School Board of New

Kent County, 391 U.S. 430, 437 (1968).

The Court ruled only "that the District

Court erred in separating Negroes and

Hispanos for purposes of defining a

‘segregated’ school." Keyes, supra,

413 U.S. at 197. Further, in its prev-

ious opinion in the instant case, this

Court specifically reserved decision

upon:

. . the merits of the holding

of the District Court, premised

upon its erroneous finding that

the situation "is more like

de facto segregation", 313

F. Supp. at 73, that never-

theless, although all-out

desegregation "could not be

decreed . .. the only feas-

ible and constitutionally

acceptable program. . . is

a system of desegregation and

integration which provides

compensatory education in an

integrated environment." Id.

at 96.

413 U.S. at 214 n. 18. This Petition

brings before the Court the questions

it reserved in the earlier proceedings,

as well as other important questions.

Certainly in the interest of clarifying

the law on this subject, the Petition

for Writ of Certiorari should begranted.

II. THE DECISION OF THE COURT OF

APPEALS LIMITING THE EQUITABLE

POWER OF THE DISTRICT COURT TO

ELIMINATE DE JURE RACIAL DIS-

CRIMINATION "ROOT AND BRANCH"

WITHIN DENVER'S PUBLIC SCHOOLS

IS INCONSISTENT WITH PRIOR CON-

TROLLING DECISIONS OF THIS COURT

AND WITH DECISIONS OF OTHER

CIRCUIT COURTS.

A. The Decision of the Court of

Appeals Conflicts With Con-

trolling Decisions of This

Court Recognizing Vast Dis-

cretion in the Equitable

Powers of the Trial Courts to

Fashion Such Remedies as are

Necessary to Eliminate “Root

and Branch” System-Wide De

Jure Racial Discrimination in

a Single School System.

This Court has frequently passed

upon the validity of various methods

to desegregate unconstitutional dual

racial school systems, and to convert

them into constitutionally valid

unitary school systems, by eliminating,

"root and branch", de jure racial dis-

crimination. It has established as

constitutional policy a heavy reliance

on trial courts, recognizing that

they must be given great latitude

in formulating remedies commensurate

with local circumstances.

In Brown v. Board of Education

of Topeka, 347 U.S. 483 (1954)

(Brown I), the Court declared the

fundamental principle that racial

discrimination in public education

is unconstitutional. In the second

round of that litigation, Brown v.

Board of Education of Topeka, 349 U.S.

294 (1955) (Brown II), the Court

addressed the question of remedying

proven racial segregation and discrim-

ination:

Full implementation of

the constitutional princi-

ples may require solution

of varied local school prob-

lems .. . Because of their

proximity to local conditions

and the possible need for

further hearings, the courts

which originally heard these

cases can best perform this

judicial appraisal.

349 U.S. at 299. Clearly it was

understood that trial courts, guided

by equitable principles, would have

to deal with various considerations

to assure compliance with constitu-

tional requirements. "To that end,

the [trial] courts may consider prob-

lems related to administration

and revision of local laws and regula-

tions which may be necessary in solving

the foregoing problems." 349 U.S. at

300.

The Court cautioned that school

authorities have the primary respon-

sibility of dealing with desegregation

problems. Brown II, supra, 349 U.S.

at 299. Accord: Green v. School

Board of New Kent County, 391 U.S.

430, 439 (1968); United States v.

Montgomery County Board of

Education, 395 U.S. 225, 267 (1969).

Thus school boards have repeatedly

been charged with the affirmative duty

to take whatever steps might be

necessary "to convert to a unitary sys-

tem in which racial discrimination [not

merely physical racial segregation]

would be eliminated root and branch."

Green, supra, 391 U.S. at 437-38.

However, the trial courts are charged

to "consider whether the action of

school authorities constitutes good

faith implementation of the governing

constitutional principles." Brown II,

supra, 349 U.S. at 299. Accord:

United States v. Montgomery County

Board of Education, supra, 395 U.S.

at 227; Louisiana v. United States,

380 U.S. 145, 154 (1965).

The trial court's equitable

powers are so extensive that it "may,

if necessary to prevent further

raciai discrimination, require the

Supervisors to exercise the power

that is theirs to raise funds adequate

to reopen, operate and maintain with-

out racial discrimination, a public

school system." Griffin v. County

School Board of Prince Edward County,

377 U.S. 218, 233 (1964). Also, in

Wright v. Council of the City of

Emporia, 407 U.S. 451 (1972), the

district court was allowed, under its

equitable remedial power, to prevent

the establishment of a new school

district, where it appeared that the

primary purpose for its creation was

to retain separation of the races.

Clearly, then, this Court

generally prefers to defer to the

district court's discretion in formu-

lating a remedy, once unlawful dis-

crimination has been established,

unless the plan a trial court adopts

"fails to provide meaningful assur-

ance of prompt and effective disestab-

lishment of a dual system." Green,

supra, 391 U.S. at 438. Furthermore,

the Courts of Appeals have been in-

structed not to interfere with such

district court actions. See, e.g.,

United States v. Montgomery County

Board of Education, supra, 395 U.S.

225.

Definitive standards for the

exercise of the district court's dis-

cretion were articulated in Swann v.

Charlotte-Mecklenburg Board of Educa-

tion, 402 U.S. 1 (1971):

Once a right and a violation

have been shown, the scope of

the district court's equitable

powers to remedy past wrongs

is broad, for breadth and flex-

ibility are inherent in equit-

able remedies.

402 U.S. at 15.

Since the school board in Swann

totally failed to come forward with an

acceptable plan of its own, the district

court properly turned to other qualified

sources. This Court approved, stating

that "the District Court proceeded to

frame a decree that was within its dis-

cretionary powers, as an equitable remedy

for the particular circumstances." Swann,

supra, 402 U.S. at 25. Thus, the Court

sanctioned the trial court's use of out-

side experts to fashion a plan of its own,

and to make extensive use of various tools

to implement its plan.

The only apparent limitation on the

trial court in providing equitable relief

through the use of remedial techniques con-

cerns questions of whether implementation was

"within the capacity of the school authority,

Swann, supra, 402 U.S. at 26, or

could feasibly be implemented, since

"[n]o per se rule can adequately

embrace all the difficulties of recon-

ciling the competing interest involved."

Swann, supra, 402 U.S. at 26. The

decree did not preclude more extensive

remedies which may be reasonable, feas-

ible, workable, effective, and real-

istic. Swann, supra, 402 U.S. at 3l.

Accord: Davis v. School Commissioners

of Mobile County, 402 U.S. 33, 37

(1971).

This Court has expressly limited

a trial court's equitable power to

implement a comprehensive desegregation

plan in only one case, and then by a

vote of five to four. Milliken v.

Bradley, 418 U.S. 717 (1974). In ruling

that the District Court had overreached

its power in Milliken, the Court built

upon its decision in Swann, supra, where

it had observed that "In seeking to

define even in broad and general terms

how far this remedial power extends it

is important to remember that judicial

powers may be exercised only on the

basis of a constitutional violation."

402 U.S. at 16. Hence, in a school

desegregation case, just "as with

any equity case, the nature of the

violation determines the scope of the

remedy." 402 U.S. at 16.

In Milliken, only the City of

Detroit's school system was found to

have violated the Fourteenth Amendment.

Yet the trial court had ordered an

inter-district pupil placement remedy,

which would have imposed part of the

burden of remedying Detroit's consti-

tutional violation on separate and gov-

ernmentally unrelated suburban school

districts which had not been shown to

have violated the Constitution. The

Court ruled that, "without an inter-

district violation and interdistrict

effect, there is no constitutional

wrong calling for an interdistrict

remedy.'' Milliken, supra, 418 U.S. at 745.

Notably, distinguishing the situ-

ation in Detroit from that of Denver in

the instant case, the Court stated that

Keyes v. School District No. 1, Denver,

413 U.S. 189 (1973) ". . . involved a

remedial order within a single autonomous

school district."" Milliken, supra, 418

U.S. at 741 n. 19.

Indeed, the question addressed by

the Court was limited, in Milliken, to

determining "the circumstances in which a

federal court may order desegregation

relief that embraces more than a single

school district." 418 U.S. at 741. Thus

the decision does not limit the equitable

power of a district court to fashion a

comprehensive remedial plan to eliminate

"root and branch" racial segregation and

discrimination within a single school sys-

tem proven guilty of system-wide discrim-

ination.

Further, it was apparent in Milliken

that this Court concluded that the trial

court's interdistrict remedy unjustifiably

restructured and consolidated "54 independent

school districts [i.e., local governmental units]

historically administered as separate

units into a vast new super school

district." 418 U.S. at 743. Yet the

trial court had not even addressed

the serious governmental questions

that would be presented by this con-

solidation. 418 U.S. at 743. None of

these considerations is present in

the instant case.

Thus, in all desegregation cases,

the Court has emphasized the fact that

circumstances support use of vast

equitable discretion by the trial

court. However, the Court has not

yet determined the validity of any

plan designed to dismantle a tri-ethnic

segregation and discrimination situa-

tion. Review of the instant case will

provide the Court with an important

opportunity to clarify the extent to

which a district court, having found

System-wide and de jure tri-ethnic

discrimination and segregation, may

act to assure the "root and branch"

elimination of the discrimination and

conversion of the school system into a

unitary one in which equal educa-

tional opportunity is provided to

all students. Green, supra, 391 U.S.

at 437-38.

B. The Decision of the Court

of Appeals Conflicts With

Decisions of Other Circuits,

Especially With Those of

the United States Court of

Appeals for the Fifth Cir-

out Mandating Detailed and

omprehensive Tri-Ethnic

School Desegregation Plans,

Includin Pans Which Pro-

vide for ingual-Bicultur-

al and Other Compensatory

Programs.

Unlike the Tenth Circuit, other

Circuit Courts generally have mandated

experimentation and implementation of

comprehensive and detailed desegrega-

tion plans in bi-racial and tri-ethnic

public school discrimination contexts.

See, e.g., Morgan v. Hennigan, 379

F. Supp. 410, 482 (D. Mass. 1974),

aff'd sub nom. Morgan v. Kerrigan,

509 F.2d 580 (lst Cir. 1975); Brewer

v. School Board of City of Norfolk,

Virginia, 397 F.2d 37, 41 (4th Cir.

1968); Davis v. School District of

Pontiac, Inc., 474 F.2d 46, 47 (6th

Cir. 1973); United States v. Board

of School Commissioners of Indianapo-

Olis, Inc., 474 F.2d 81, 85 (7th

Cir.), cert. denied, 413 U.S. 920

(1973).

In particular, the Tenth Circuit

decision in the instant case conflicts

with numerous decisions of the Fifth

Circuit. This conflict is especially

significant in that the Fifth Circuit

has dealt with desegregation matters

to a greater extent than have the other

circuit courts. Probably because

Chicanos constitute the largest con-

stitutionally identifiable ethnic

minority in the State of Texas, the

Fifth Circuit has also led the other

circuit courts in treating discrimina-

tion against Chicanos and tri-ethnic

public school segregation and discrim-

ination. E.g., see Keyes v. School

District No. 1, Denver, 413 U.S. 189,

197 (1973), where this Court relied

on several cases from Texas for its ruling

"that Hispanos constitute an identifiable

class for the purposes of the Fourteenth

Amendment ."44/

The Fifth Circuit has generously des-

cribed the spectrum of remedies to be con-

sidered by trial courts in desegregation

cases. In United States v. Jefferson County

Board of Education, 380 F.2d 385, 389 (5th

Cir. 1967) (en banc), cert. denied, 389

U.S. 840 (1967), the court held that:

If Negroes are ever to enter

the mainstream of American

life, as school children they

must have equal educational

opportunities with white child-

ren.

14. The most recent Fifth Circuit decisions

treating public school discrimination ageinst

Chicanos include: Zamora v. New Braunfels Inde-

pendent School District, F.2d. (Sth Cir. Sep-

tember 5, 1975) (No. 73-2999); United States v.

Midland Independent School District, F.2d _

(5th Cir. August 28, 1975) (No. 71-3271); Morales

v. Shannon, 516 F.2d 411 (5th Cir. 1975); Tasby v.

Estes, 517 F.2d 92 (5th Cir. 1975); Arvizu v.

Waco Independent School District, 373 F. Supp.

1264 (W.D. Tex. 1973), aff'd in part, rev'd as to

other issues, 495 F.2d 499 (5th Cir. 1974).

: . The necessity of over-

coming the effects of the

fual school system in this

circuit requires integration

of faculties, facilities and

activities, as well as stu-

dents.

Jefferson County, supra, 380 F.2d at

390. In the Jefferson County case, the

Fifth Circuit formulated extensive in-

structions to its district courts, for

use in adopting future desegregation

plans. The instructions dealt with

many facets of school administration

and education, including, for example,

provision for equalization of facil-

ities and programs and implementation

of remedial education programs.

In another notable case the Fifth

Circuit sustained a district court

decision requiring the Texas Education

Agency and the State Commissioner of

Education to fulfill “their affirmative

obligations under Title VI of the Civil

Rights Act of 1964 and the Fourteenth

Amendment to the Constitution", “rela-

ting to the desegregation of public

elementary and secondary education

within the State of Texas..."

United States v. Texas, 447 F.2d 441,

442-43 (5th Cir. 1971), cert. denied,

404 U.S. 1016 (1972). The District

Court has concluded that the state's

duty was two-fold: "First, to act at

once to eliminate by positive means

all vestiges of the dual school struc-

ture throughout the state, and second,

to compensate for the abiding scars

of past discrimination." 447 F.2d at

443. The District Court's plan imposed

substantial remedial obligations on

the state officials, including many

dealing with "curriculum and compen-

satory education." 447 F.2d at 448.

With modifications not relevant to the

issues in the instant case, the Fifth

Circuit upheld the District Court's

findings and plan. 447 F.2d at 441-42.

In subsequent proceedings in

United States v. Texas, the relation-

ship between a Chicano-Anglo pupil

placement order and a bilingual-bicul-

tural order was most extensively expli-

cated by the District Court and af-

firmed by the Fifth Circuit. United

States v. Texas, 342 F. Supp. 24

(E.D. Tex. 1971), aff'd, 466 F.2d

518 (5th Cir. 1972). Although deseg-

regation suits involving black and

white students may provide guidelines

in a similar case involving Chicano

students, the District Court noted

that the special circumstances of the

Chicano students must be considered

in providing remedies to their par-

ticular problem. the Court stated:

Little could be more clear

to the Court than the need

for special educational con-

sideration to be given to

Mexican Americans in assis-

ting them in adjusting to

those parts of their new

school environment which

present a cultural and

linguistic shock.

342 F. Supp. at 28.

Finding that the San Felipe del

Rio Consolidated Independent School

District constituted an illegally seg-

regated school system, the District

Court ordered the implementation of a

comprehensive education plan which

included not only a pupil placement

component but also an extensive bilingual-

bicultural instructional program and

other compensatory education compon-

ents. 342 F. Supp. at 28-38. The

plan imposed by the District Court

was strikingly similar to the plan

imposed by the trial court in the

instant case. This similarity is

not remarkable, for the San Felipe

del Rio Plan, like the Intervenors'

Plan in the instant case, was form-

ulated by Dr. Jose Cardenas. See

342 F. Supp. at 28. The Fifth Cir-

cuit, however, unlike the Tenth Cir-

cuit, affirmed the District Court's

implementation of the Cardenas Plan.

466F.2d 518 (5th Cir. 1972).

Numerous other panels and Dis-

trict Courts in the Fifth Circuit

have ordered the implementation of

bilingual-bicultural education and

other remedial or compensatory pro-

grams as a part and parcel of a

desegregation case involving Chicano

students .22/In United States v. Texas

(Austin Independent School District) ,Civ.

No. A-70-CA-80 (W.D. Tex. Aug. 1, 1973),

pending on appeal (5th Cir. No. 73-3301),

the trial court included in its plan a

directive that Mexican American students

be provided "a curriculum and special

educational programs such as bilingual-

bicultural education."

Similarly, in Arvizu v. Waco Indepen-

dent School District, 373 F. Supp. 1264

(W.D. Tex. 1973), aff'd in part, rev'd as

to other issues, 495 F.2d 499 (5th Cir.

1974), the court ordered the implementation

of a plan that provided for a "sophisti-

cated" bilingual-bicultural education pro-

gram, 373 F. Supp. at 1280, designed to

15. In its recent ‘Memorandum of Decision and

Remedial Orders"’, in the Boston School Case, the

United States District Court for the District of

Massachusetts also stressed bilingual and compen-

satory education, especially ‘for Hispanic stu-

dents and for others in need of this service."

Morgan v. Kerrigan, _F. Supp. _ (D. Mass. Jume 5,

1975) (Civ. No. 72-911-G), Slip Opinion at pp. 40-

43, 65-67, 81-87, on appeal (lst Cir. Nos. 75-1184,

75-1195, 75-1197, 95-1212) (argued Sept. 12, 1975).

provide a scholastic environment recep-

tive to Chicano students.

In Morales v. Shannon, 516 F.2d 411,

414-15 (5th Cir. 1975), rev'ing in part

aff'ming in part, 366 F. Supp. 813 (W.D.

Tex. 1973), a panel of the Fifth Circuit

reversed a district court determination

that there was no de jure segregation of

Chicanos in the Uvalde, Texas school sys-

tem. The panel also observed that since

the lawsuit was filed, the State of Texas

had by statute mandated bilingual-bicul-

tural programs and the defendants had

instituted such a program. The panel also

concluded that, "It is now an unlawful

educational practice to fail to take appro-

priate action to overcome language bar-

riers." 516 F.2d at 415. Despite the

panel's belief that the “entire question

goes to a matter reserved to educators"

(516 F.2d at 415), the case was also re-

manded for trial court examination of the

program to determine whether it comported

16/

with legal requirements.

16. Not only has this Court (Lau v. Nichols,

(footnote continued on next page)

This Court should grant the Writ

of Certiorari to resolve the direct con-

flict between the Tenth and Fifth Cir-

cuits regarding the inclusion of bilin-

gual-bicultural and compensatory educa-

tion components in court-ordered deseg-

16. (continued from preceeding page) 414.U.S.

563 (1974)) and the Fifth Circuit recognized

that "it is an unlawful educational practice to

fail to take appropriate action to overcome

language barriers", but so has a panel of the

Tenth Circuit. Serna v. Portales Municipal

Schools, 499 F.2d 1147 (10th Cir. 1974).

Relying on evidence of unequal educational oppor-

tunity similar to that which has been adduced on

the record of the instant case, the court sus-

tained a District Court decision that the plain-

tiffs had proved that they were the victims of

unlawful educational practices. Specifically, the

defendants were found to have "failed to institute

a program which will rectify language deficiencies

so that these [Spanish-surnamed children] will

receive a meaningful education." 499 F.2d at 1154.

In Serna, the district court had found the school

system guilty of unlawful national origin discrim-

ination but not classical segregation, both under

(continued next page)

regation plans, as well as the general

conflict between the Tenth Circuit and

the other Circuits regarding the district

courts' equitable discretion to formulate

comprehensive and workable plans to con-

vert unlawfully segregated systems into

"unitary system[s] in which racial dis-

crimination would be eliminated root and

branch", Green v. School Board of New

Kent County, 391 U.S. 430, 437 (1968).

16. (continued from preceeding page) the

Fourteenth Amendment as well as Title VI of the

Civil Rights Act of 1964. 499 F.2d at 1153.

The Court of Appeals sustained the District

Court only under Title VI and did not reach

the Fourteenth Amendment question. In upholding

the district court's bilingual-bicultural

education plan, however, the Court of Appeals

specifically employed standards for review of

district court equitable powers formulated in

desegregation cases. 499 F.2d at 1154.

III. DECISION OF THE COURT OF

APPEALS IS INCONSISTENT WITH

THIS COURT'S DECISIONS AND

CONFLICTS WITH THE DECISIONS

OF OTHER CIRCUIT COURTS IN THAT

THE COURT OF APPEALS FAILED TO

GIVE APPROPRIATE DEFERENCE TO

GUIDELINES OF THE DEPARTMENT

OF HEALTH, EDUCATION AND

WELFARE FOR IMPLEMENTING A

DESEGREGATION REMEDY.

Numerous decisions of this Court

have recognized that the guidelines im-

posed by the Department of Health, Edu-

cation and Welfare for compliance with

Title VI of the Civil Rights Act of

1964 ,22/ are the bare minimum stan-

dards to be imposed by courts when they

17. Title VI prohibits exclusion from partici-

pation in, denial of benefits of, and discrimi-

nation under federally assisted programs on

grounds of race, color, or national origin.

§ 2000d. It also authorizes HEW to effectuate

these provisions. § 2000d-1. The Commissioner

of Education is under a duty to withold fumding

from any educational agency for non-compliance

with the act. § 2000d-5.

order public school desegregation

under the Fourteenth Amendment. See,

Swann v. Charlotte-Mecklenburg Board

of Education, 402 U.S. 1, 16 (1971);

Green v. County School Board, 391

U.S. 430, 433 (1968). See also, Lau

v. Nichols, 414 U.S. 563 (1974).

Similarly, the Fifth Circuit has

placed great emphasis on HEW stand-

ards. For example, in Singleton v.

Jackson, 348 F.2d 729, 731 (5th Cir.

1965), that court stated:

There should be close

correlation .. . between

the judiciary's standards

in enforcing the national

policy requiring desegre-

gation of schools and the

executive department's

standards in administering

the policy.

For several reasons, the Fifth Circuit

correctly believes that HEW guidelines

should be used as the minimum stan-

dards to be imposed by courts in deseg-

regation cases: (1) to promote uniform

policy of desegregation; (2) to prevent

school boards from circumventing HEW

requirements and; (3) to avoid the

possibility that courts will handle

cases on an ad hoc basis. Singleton,

supra, 348 F.2d at 731. See also,

e.g., United States v. Texas Education

Agency, 467 F.2d 848, 860 (5th Cir.

1972); United States v. Texas, 447

F.2d 441, 446 (5th Cir. 1971), cert.

denied, 404 U.S. 1016 (1972); United

States v. Jefferson County Board of

Education, 380 F.2d 385, 390 (Sth Cir. 1967)

(en banc), cert. denied, 389 U.S. 840

(1967); United States v. Jefferson

County Board of Education, 372 F.2d

836, 886 (5th Cir. 1966).

Lau v. Nichols, 414 U.S. 563 (1974)

involved the San Francisco School Dis-

trict, which had been found guilty, in

earlier proceedings, of racial discrim-

ination and had had a system-wide deseg-

regation plan imposed on it 8/1n Lau

18. Johmson.vs. San Francisco, 339 F. Supp.

1315 (N.D.Ca) petition for stay denied sub nom.

Guey Hueng v. Johnson, 404 U.S. 1215 (1971),

remanded, 500 F.2d 349 (9th Cir. 1974).

the Court addressed the plight of the large

number of San Francisco students of Chinese

ancestry who are non-English speaking and

were receiving no instruction designed to

rectify their inability to function in

English. This Court concluded that the

defendants were under an affirmative legal

requirement to provide programs addressed

to these students' language disabilities?”

The Lau decision was based upon Title

VI of the Civil Rights Act of 1964, rather

than on constitutional grounds; however,

the Lau case serves to emphasize the fact

that trial courts should consider the needs

of linguistic and national origin-minori-

ties in implementing a desegregation reme-

dy. Moreover, in Lau, this Court express-

ly relied upon ard validated the 19/70 HEW

regulations, which were promulgated

19. In Serna v. Portales Municipal Schools, 499

F.2d 1147 (10th Cir. 1974), a panel of the Tenth

Circuit, following this Court's lead, sustained

under Title VI a court-ordered bilingual-bicul-

tural education plan designed to redress the un-

equal educational opportunities suffered by

Mexican-American children.

under Title VI. 414 U.S. at 566-69;

id., 414 U.S. at 571 (Steward, J.,

Burger, C.J., and Blackmun, J., con-

curring). These regulations were

designed to impose an affirmative ob-

ligation on school districts receiving

federal funds to operate programs to

rectify language deficiencies of ling-

uistic minority group members. 35 Fed. Reg.

11595, Appendix at pp. 319a-23a. See

also, § 204(f) of the Equal Educational

Opportunity Act of 1974, 20 U.S.C. §

1703(£)(Supp.), Appendix at pp. 288a-

90a, which now makes it an unlawful

educational practice to fail "to take

appropriate action to overcome language

barriers that impede equal participa-

tion by its students in its instruc-

tional programs."

During the past summer, HEW prom-

ulgated extensive new regulations,

entitled "Task Force Findings Specifying

Remedies Available for Eliminating Past

Educational Practices Ruled Unlawful

Under Lau v. Nichols" (Appendix at

pp. 330a-6la), and transmitted these

regulations to the chief school offi-

cer of each of the States (Appendix

at pp. 324a-30a). These regulations,

which are quite consistent with the

plan ordered by the District Court in

the instant case, 20/ -equire the offering

of bilingual-bicultural education to

linguistic and national origin minority

group students through a variety of

comprehensive programs designed to meet

the needs of students of varying English

language ability.

The District Court's plan in the

instant case is not only fully consis-

tent with the controlling HEW regula-

tions, the plan is also consistent with

HEW's actions in conducting Title VI

school desegregation compliance reviews.

HEW compliance reviews are not limited

to pupil placement and allied matters:

they deal with a broad spectrum of res-

ponsibilities imposed on school officials

20. Dr. Jose A. Cardenas, upon whose plan the

District Court relied in the instant case to for-

mulate its plan, was a member of the HEW Task

Force which produces the new regulations.

to eliminate discrimination based on

language and cultural differences.

These obligations range from requiring

the School District to meet the language

needs of its students, to providing

notice of meetings to parents in a

language they can understand. Fur-

ther, the HEW compliance plans now

require affirmative action hiring, in-

service training of teachers, counsel-

ors and administrators, curriculum

modifications and employment of bi-

lingual personnel. See generally,

U.S. Commission on Civil Rights,

Report VI: Toward Quality Education for

Mexican Americans at 135 (1974) .21/

21. For an account of the HEW compliance plan

for the Socorro School District in Texas, see

Report VI, supra, at pp.166-67. For accounts

of the comprehensive plans imposed by HEW in

places such as El Paso and Beeville, Texas,

after employing Dr. Cardenas as an expert,

see Tr. 1063.

In the Matter of Board of Educa-

tion of Uvalde Independent School Dis-

trict, Administrative Proceeding,

Department of Health, Education and

Welfare (Docket No. S-47, July 24,

1974) (Final Decision of Reviewing

Authority), the Office for Civil Rights

held an extensive administrative hearing

concerning segregation of Chicano stu-

dents and a school district's failure

to provide an equal educational oppor-

tunity program. The respondents there,

as the defendants in the instant case,

argued that they had no duty to provide

bilingual education because there was

no evidence that the absence of biling-

ual education was the result of de jure

segregation. The reviewing authority

of the Office for Civil Rights held

that the absence of bilingual-bicultural

education constitutes unlawful discrim-

ination against Mexican American stu-

dents. See, Morales v. Shannon, 516

F.2d 411, 415 n.1 (5th Cir. 1975). In

parallel judicial proceedings, the

Fifth Circuit has remanded the case to

the trial court to determine if, pre-

sumab ly in the light of HEW standards,

the “defendants are engaging in dis-

criminatory practices in the [bilin-

gual-bicultural] program as it

currently exists." 516 F.2d at 415. 22/

This Court should grant the

writ of certiorari in the instant

case to further clarify the deference

courts are to accord to HEW guidelines

when courts desegregate public school

systems which include substantial

language and national origin minority

group students.

22. Dr. Cardenas was called as an expert

witness in the Uvalde, Texas case, both in

the HEW proceedings and in the court

proceedings. (See Tr. 1024.)

IV. THIS CASE RAISES IMPORTANT

QUESTIONS OF WHETHER THE DE -

FENDANTS' SYSTEMATIC FAILURE

TO RESPOND TO THE EDUCATIONAL

NEEDS OF CHICANO PUBLIC SCHOOL

STUDENTS DENIED THEM EQUAL EDU-

CATIONAL OPPORTUNITY UNDER THE

FOURTEENTH AMENDMENT AND TITLE

VI OF THE CIVIL RIGHTS ACT OF

1964, WHICH HAVE NOT BEEN, BUT

OUGHT TO BE, RESOLVED BY THIS

COURT.

At least, when a state, like Colo-

rado (See, e.g., CRS 123-21-3, quoted

in 380 F. Supp. at 696 n. 3, Appendix at

p. 205a n. 3) makes it the central mis-

sion of its public schools to insure

that all students achieve a master of

English, under Title VI of the Civil

Rights Act of 1964, school authorities

have the affirmative duty to rectify any

English language deficiency "[w]here

inability to speak and understand the

English language excludes national ori-

gin-minority group children from effec-

tive participation in the educational

program offered by a school district."

35 Fed. Reg. 11595 (1970). See Lau v.

Nichols, 414 U.S. 563 (1974); Serna v.

Portales Municipal Schools, 499 F.2d

1147 (10th Cir. 1974). As this Court

has recognized:

Under these state-imposed

standards there is no equality

of treatment merely by providing

students with the same facili-

ties, textbooks, teachers, and

curriculum; for students who do

not understand English are effec-

tively foreclosed from any mean-

ingful education.

414 U.S. at 566. Further, HEW's latest

regulations implementing Title VI,

in this context, clearly impose obliga-

tions to treat affirmatively English

language disabilities, even when the

national origin-minority group children

involved are able to speak and under-

Stand the English language, although not

as well as their Anglo school mates.

(Appendix at pp. 319a-23a.)

In 1962 an official Denver Special

Study Committee on Equality of Education

Opportunity found there was inequality

in the educational opportunity offered

to racial minorities in the Denver

schools. 303 F. Supp. at 283. Although

the School Board then adopted various

policy resolutions designed to implement

changes recommended by the Special Study

Committee, the resolutions were ultimate-

ly rescinded. See 303 F. Supp. at 284,

285. Thereafter, no substantial affir-

mative action was taken by the defendants

to alleviate the problems of national

origin minorities in the Denver area.

303 F. Supp. at 284-286. On the basis

of these actions and the rest of the

record in this ease. =’ but without spe-

cifically holding that the school board

had violated Title VI, the trial court

twice found all the elements of a Title

VI violation, and concluded that the

minority students were unlawfully denied

the opportunity to participate equally

with Anglo students in the Denver school

system's educational programs. As the

District Court found: "The educational

23. The evidence bearing upon these issues is

summarized in the Statement of the Case, supra,

at pp.13-17, 20, 25-42.

opportunity in the minority schools has

been proven in our present trial as

well as in previous trials to be infe-

rior to that in the majority schools."

380 F. Suop. 673, 682 (1974). Compare

the language employed by this Court in

finding the Title VI violation in Lau

v. Nichols, supra, 414 U.S. at 566, 568.

Evidently, not even the Colorado

legislature belfeves that existing pro-

grams are satisfactory to provide equal

educational opportunities for language

and national origin-minority students.

During the pendency of the appeal in the

instant case, the Colorado legislature

enacted the comprehensive 1975 "Bilingual

and Bicultural Education Act" to provide

for the sort of education which would

assure to these children an equal edu-

cational opportunity. Appendix at pp.

362a - 4lha.

Thus, under the state-imposed

standards for education within Colorado,

and this Court's decision in Lau, there

was an ample basis in the record of the

instant case for finding a violation of

Title VI. Furthermore, in view of the

new Colorado "Bilingual and Bicultural

Education Act" and the new comprehensive

HEW guidelines implementing Title VI in

the instant kind of a case (Appendix at

pp. 330a-6la), the District Court's

decree does not overstep the scope of a

proper remedy.

There is also a sufficient basis on

the record for the District Court's

findings that the defendants’ failure to

provide programs designed to afford the

minority group children in Denver an

equal educational opportunity constitutes

a violation of the Fourteenth Amendment,

somewhat independent of the proven de

jure segregation. See, e.g., 313 F.

Supp. 61, 73 (1970), issue reserved, 413

U.S. 189, 214 (1974).

Since this Court did not consider

the relationship between Title VI and

the Fourteenth Amendment in Lau, the

Court should now clarify the relation-

ship, particularly in light of this

Court's decision in Katzenbach v. Morgan,

384 U.S. 641 (1966). In that case, the

Court stated, "We emphasize that Con-

gress' power under §5 [of the Fourteenth

Amendment] is limited to adopting meas-

ures to enforce the guarantees of the

Amendment; §5 grants Congress no power

to restrict, abrogate or dilute these

guarantees." 384 U.S. at 651 n. 10.

It is clear under this rationale that

while Congress may expand constitutional

guarantees under the Fourteenth Amend-

ment, it may not contract them. It fol-

lows that in adopting Title VI, and in

authorizing HEW to promulgate guidelines

to effectuate it, Congress was properly ex-

pressly onthe constitutional guarantees

of the Fourteenth Amendment. This being

the case, HEW guidelines should be con-

sidered the minimum constitutional stan-

dards to be applied in Fourteenth Amend-

ment cases, and particularly in the

instant case.

Further, in recently enacting the

Equal Educational Opportunity Act of 1974,

88 Stat. 514, 20 U.S.C. §§1701 et seq.

(Supp.) (See Appendix, at pp. 284a-9la),

Congress specifically expressed its pol-

icy to further enforce Fourteenth Amend-

ment equal protection guarantees. The

Act in part states,

§ 1702(a). The Congress finds that

(1) the maintenance of dual

school systems in which stu-

dents are assigned to schools

solely on the basis of race,

color, sex, or national origin

denies to those students the

equal protection of the laws

guaranteed by the fourteenth

amendment.

§ 1703. No State shall deny

equal educational opportunity

to an individual on account of

his race, color, sex, or national

origin by .

(f) the failure of an educa-

tional agency to take appro-

priate action to overcome

language barriers that impede

equal participation by its

students in instructional

programs.

Given this Court's holding in

Katzenbach v. Morgan and the clear con-

gressional intent to enforce constitu-

tional guarantees through enactment of

Title VI and the Equal Educational

Opportunity Act of 1974, the Court of

Appeals' decision raises serious cons-

titutional questions.

Under the Fourteenth Amendment, the

Denver school system must provide educa-

tional programs responsive to the needs

not only of Anglos or blacks but also

of Chicano children. Identical treat-

ment of patently different groups may

well not produce the "equality" mandated

by our Constitution. See, e.g., Williams

v. Rhodes, 393 U.S. 23 (1969). In Lau,

supra, 414 U.S. at 568, this Court

recognized that providing equal programs

and facilities does not provide equality

“where inability to speak and understand

the English language excludes national

Origin-minority group children from ef-

fective participation in the educational

program. The Court should now

100

consider whether the instant case may

well present a situation in which equal

treatment of two different constitution-

ally identifiable minority groups may

deprive one group of equal protection

under the Fourteenth Amendment. Pre-

viously, this Court has rejected the

argument that provision of similar

curricula and facilities was sufficient

to satisfy the Equal Protection Clause,

since the Court did not consider these

the sole measures of equal educational

opportunity. McLaurin v. Oklahoma State

Regents 339 U.S. 637 (1950).

Certainly, the District Court's

decision is in keeping with the policy

established by this Court. The District

Court based its decision on substantial

evidence of the racial and national-

origin composition of the student popu-

lation of Denver, and various ethnic

factors in the areas such as curriculun,

instruction and guidance, administration

and organization, md school-community

relations. The District Court also

101

repeatedly found that the administration

was aware of these conditions, but that

they failed to take steps to rectify

them. E.g., 303 F. Supp. 279, 284

(1969); 303 F. Supp. 289, 295 (1969);

313 F. Supp. 61, 65 (1970). On the

Record of this case the Court should

consider the Fourteenth Amendment and

Title VI issues presented, and the Court

should consider the interrelationship

between the Fourteenth Amendment and

Title VI.

CONCLUSION

For the foregoing reasons, the

writ of certiorari should be granted.

Respectfully submitted,

VILMA S. MARTINEZ

SANFORD JAY ROSEN

JOAQUIN AVILA

MARY R. MENDOZA

Mexican American Legal

Defense and Educa-

tional Fund

145 Ninth Street

San Francisco, Calif.

94103

102

R. PETE REYES

Mexican American Legal

Defense and Educational

Fund

209 Sixteenth Street

Suite 200

Denver, Colorado 80202

PAUL BACA

1123 Delaware Street

Denver, Colorado 80204

Attorneys for Petitioners

Congress of Hispanic

Educators, et al.

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