Opposition Brief — School District No. 1 v. Keyes

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7 A SEY

osha ae |

Supreme Court, U. Sa

MiIiGKAKY FiLED

SUPREME Courr, “ue | DEC 15 1975

ICHREL ROAR TIE TTERK

IN THE

Supreme Court of the United States

October Term, 1975

No. 75-702

CONGRESS OF HISPANIC EDUCATORS, et al.,

Petitioners,

Vs.

SCHOOL DistTricT No. 1, DENVER, COLORADO, et al.,

Respondents.

BRIEF IN OPPOSITION TO CERTIORARI

William K. Ris Thomas E. Creighton

900 Denver Club Building Michael H. Jackson

Denver, Colorado 80202 1415 Security Life Building

Denver, Colorado 80202

Attorneys for Respondents

Bn 14 BRADFORD PRINTING, DENVER

WPRAIO

MR Rs Re NE ON

Pe

ees Sen

a ¥

Pee eT TET Te eee T TCT

Reasons for Denying the Writ ................05-

l.

The petition raises no new questions of sub-

stantial significance or importance ..........

A.

The Question of Whether the Fourteenth

Amendment Requires that Public Schools

Provide, for Linguistic Minorities, More

than Programs Designed to Correct De-

ficiencies in Basic English Skills is Con-

trolled by Previous Decisions of This

oo eT ue ee ee ee Cee OPE T ERE

The Renewed Claim that the Vacated

Remedy Plan was Justified by a Violation

of $601 of the Civil Rights Act of 1964

Raises No Question Requiring the Atten-

tion of This Court at This Time ........

The holding of the court of appeals that the Car-

denas Plan went beyond the nature of the con-

stitutional violation is fully in accord with this

Court’s decisions and does not conflict with the

decisions of any other court of appeals ......

A.

B.

The Court of Appeals Faithfully Followed

this Court's Gundelines .........0555.

There is No Conflict Among the Circuit

Courts, and in Particular There is No Con-

flict Between the Tenth Circuit and Fifth

RES ee ree ere oe

The Court of Appeals Correctly Deter-

mined the Applicability of Federal Statu-

tory Standards and Regulations in Guide-

lines Promulgated Thereunder; Its Deci-

sion in No Way Conflicts with any Deci-

sion of this Court or any other Court of Ap-

10

Poe Rey SO Ame * ~ a 7

ii

PAGE

peals Regarding the Applicability of Such

Standards Pertaining to Language De-

ficiencies of Public School Pupils ....... 13

errr ree reer ey ree CELA eee Eee 14

CASES TABLE OF AUTHORITIES

Arvizu v. Waco Independent School District,

BOS Fe Soe CSUR UM, TPIS) vc cence ccc gece. l1n

Brown v. Board of Education of Topeka, 347 U.S.

RAED 6 Ce Nn yk yes c RES ARNAGA KONE Sa eee 5

Cisneros v. Corpus Christi Independent School District,

BOT Ae 88k CONGR. UBS) vaccines ce ieeas Ai, ¥2

Davis y. School District of City of Pontiac, Inc.,

ig ec | es) En a 10

Katzenbach v. Morgan, 384 U.S. 641 (1966) ......... 7

Keyes v. School District No. 1, 413 U.S.

SD iA ee Oe sR A AWA eae Cee sa 7,9, 12

Lau v. Nichols, 414 U.S. 563 (1974) ...... 3, 5,6, 6n, 14

Milliken v. Bradley, 418 U.S. 717 (1974) .......... 8

Morales v. Shannon, 516 F.2d 411 (Sth Cir. 1975)... 11

San Antonio Independent School District v. Rodriguez,

EE Sean Ee is Sh eh no 4 8 ee eeu 4,5

Swann v. Charlotte-Mecklenburg Board of Education,

8. GG. os ¢ ep earraen re meee reareeaa 8,9, 10,12

United States v. Texas (San Felipe-Del Rio), 466 F.2d

Pe RE SOE has NAN \ dake coed arene 10, 12

United States v. Texas Education Agency (Austin),

ee ee ee a EPR V5 cca k 5 AN Caw Oe 12

Zamora v. New Braunfels Independent School District,

iy wl ER Lh Oe | >) 12

CONSTITUTION

United States Constitution, Amendment XIV .. 4, 6, 7, 13

STATUTES

Se rs POE Bu ks esse Oks wes ewes 3, 4, 6, 7, 13, 14

“s AMO RR PRN St TRAE TE an HT LAR LE OOO RUE SE

IN THE

Supreme Court of the Anited States

October Term, 1975

No. 75-702

CONGRESS OF HISPANIC EDUCATORS, et al.,

Petitioners,

VS.

SCHOOL DistricT No. 1, DENVER, COLORADO, et ai.,

Respondents.

BRIEF IN OPPOSITION TO CERTIORARI

Statement of the Case

The petition seeks review of the order of the court of

appeals vacating a portion of the district court’s decree pre-

scribing the remedy for the “dual system” found to exist in

Denver. The portion vacated was a pilot bilingual-bicultural

program “particularly directed toward the educational prob-

lems of Mexican-American children” (380 F. Supp. at 94;

App., p. 199a), at four elementary schools which were to re-

main sustantially (77%-88% ) minority (Hispano) and at

two secondary schools. As described by the court of appeals,

the program ordered would:

. .. extend to matters of educational philosophy,

governance, instructional scope and sequence, cur-

riculum, student evaluation, staffing, non-instruc-

tional service and community involvement . .

[include] a mechanism for comprehensive moni-

toring of the program’s status . . . [c]ontinuing

evaluation by ten “Equal Educational Opportuni-

ties Committees,” each composed in part of per-

sons from outside the school system .. . [and] touch

virtually every aspect of curriculum planning,

APRA Ae me Ar RBCS BONY ARTA TY

2

methodology and philosophy presently the respon-

sibility of local school authorities . . . [The plan

proposed] the inclusion of specific courses in the

curriculum, adoption and publication of specific

educational principles, provision of early child-

hood education (beginning at age three) and adult

education for minorities, and provision of adequate

clothing for poor minority schoo! children. 521

F.2d at 480; App. p. 49a, 50a.

Petitioners seek the reinstatement of this “adjunct” to

the desegregation decree and further seek its implementation

throughout the school system, i.e., in a fully integrated

setting. (Pet. p. 46, n. 9)

Following remand from this Court, Keyes v. School Dis-

trict No. 1,413 U.S. 189 (1973), ane after a hearing, the dis-

trict court found that ethnic imbalance throughout the school

district was the product of certain segregative acts in the Park

Hill area in the early 1960s (368 F. Supp. at 210; App. p.

281a). The constitutional violation was limited to racial

segregation of pupils.

After determining that “the Denver system is a dual sys-

tem within the Supreme Court’s definitions” (368 F. Supp.

at 210; App., p. 282a), and after a hearing on the question

of the remedy to be required, the district court made certain

findings regarding the bilingual-bicultural program, known

as the Cardenas Plan and addendum thereto, and ordered its

implementation. 380 F. Supp. at 180, 681; App. pp. 148a,

149a; ibid. at 692, 694-696; App. pp. 189a-191a, 199a-207a;

App. pp. 106a, 107a.

The district court recognized

... that most of our Spanish surnamed or Mexican-

American children are able to speak English and

thus teaching in the Spanish language would not

be necessary. 380 F. Supp. at 692; App. p. 191a.

That finding was supported, in the record, by defendant’s

EP RTS a i aR te

yore et

Exhibit YA, which showed the resuts of a survey made dur-

ing the year of the trial which identified 136 pupils having

Spanish as their home language as “needing intensive help.”

Another 115 needed “extra help.” The total number of His-

pano pupils in the schools that year was 20,074, in a total en-

roliment of 85,438 (see 521 F.2d at 483, n. 22; App. pp.

58a, 59a). The district court also found that “many” Hispano

pupils were expected “to acquire normal basic learning skills

which are taught through the medium of [an] unfamiliar

language.” 380 F. Supp. at 695; App. p. 203a.

The district court then concluded that

Some provisions for effecting a transition of Span-

ish-speaking children to the English language will

clearly be a necessary adjunct to this Court’s de-

segregation plan. Id.; App. p. 203a.

and took note of this Court’s decision in Lau v. Nichols, 414

U.S. 563, (1974) holding that non-English-speaking Chinese

pupils were entitled to special instruction in English under

$601 of the Civil Rights Act of 1964, 42 U.S.C. §2000d.'

1The district court also adverted to its earlier findings, following the first trial on

the merits in 1970, (see 315 F. Supp. at 77-85, and 313 F. Supp. at 91, 96, 97)

that schools with predominately minority pupil concentrations provide inferior

educational opportunity. 380 F. Supp. at 682; App. p. 156a. But in these earlier

findings of the district court, the inferior nature of such schools was held to

be caused by ethnic concentration or isolation. 313 F. Supp. at 81, 82. (See 521

F.2d at 481 n. 17; App. Sla, 52a) The primary remedy was, accordingly, ethnic

balance or desegregation. The trial judge (the same judge who heard the recent

proceedings; see Pet., p. 11, n. 3) observed,

Thus, the only hope of raising the level of these students and

for providing them the equal education which the Constitution

guarantees is to bring them into contact with classroom asso-

ciates who can contribute to the learning process; 313 F. Supp.

at 96, 97.

Compensatory education was also required in the 1970 remedy order. (The order

was not implemented because the holding of violation was reversed on appeal.)

But the Compensatory education ordered was directed at what the trial court had

found to result from ethnic concentration, namely, low test scores and high

teacher turnover. Thus, the plan called for more teacher training and support

and more schooling opportunities through longer school years and early child-

hood programs. Classes in minority culture and language were included, but no

bilingual-bicultural program was required. 313 F. Supp. at 99.

my memcrancenrre sce gl

1A RINE TELL EIT SN RAL REN YT OS NES SIRE UN PARE OTE EAE RETR NARS NI TE oe |

4

Upon these findings the district court ordered what the

court of appeals called “an overhaul of the system’s entire

approach to education of minorities” by the implementation

of the bilingual-bicultural program described above.

On appeal to the court of appeals, petitioners urged three

justifications for requiring the Cardenas Plan as a part of a

remedy for ethnic segregation. First, it was urged that His-

pano pupils, in a desegregated setting, would be isolated in

a new way — by culturally different surroundings — and that

this isolation is as unconstitutional as ethnic segregation. But

the court of appeals, after observing that “the equitable power

to order relief... is limited... by... the extent of the proven

constitutional violation,” (521 F. Supp. at 481; App. p. 53a)

noted that there were no findings that the educational pro-

gram in the schools constituted illegal segregation. Ibid, at

482; App. p. 54a. The court of appeals further observed that

existing programs appeared to meet the need to remove lin-

guis‘ic obstacles to effective desegregation. Id; App. pp. 55a,

56a. (And see Id., n. 21; App. pp. 56a)

Second, petitioners urged that the Fourteenth Amendment

required an educational program adapted to the unique cul-

tural needs of Hispano pupils. This claim was rejected by the

court of appeals on the basis of this Court’s decision in San

Antonio Independent School District v. Rodriquez. 411 U.S.

1 (1973).

Finally, it was urged that $601 of the 1964 Civil Rights

Act, 42 U.S.C. §2000d, required such a program. The court

of appeals, on the basis of the facts in this case, found no viola-

tion of §601 in “failing to provide language instruction to

substantial numbers of non-English-speaking children.” 521

F.2d at 483, n. 22; App. p. 58a, 59a. And the court noted

that even if such a violation existed, the Cardenas remedy

would go beyond the scope of such a violation. Id., n. 22;

App. pp. 58a, 59a.

oe ee ere ener. eet a

The court of appeals did not quarrel with the district

court’s determination that “[s]ome provisions for effecting a

transition of Spanish-speaking children to the English lan-

guage” (380 F. Supp. at 695; App. p. 203a) are necessary.

521 F. 2d at 482; App. p. 54a. But the Cardenas remedy

went “well beyond helping Hispano school children to reach

proficiency in English necessary to learn other basic subjects”

(521 F. 2d at 482; App. p. 54a) and therefore “overstep[ed]

the limits of the [district court’s] remedial powers.” Ibid, at

981; App. p. 53a. The court of appeals accordingly re-

manded for the purpose of determining “the relief, if any,

necessary to insure that Hispano and other minority children

will have the opportunity to acquire proficiency in the English

language.” Ibid., at 483; App. pp. 59a, 60a.

REASONS FOR DENYING THE WRIT

1.

The Petition raises no new questions of substantial signif-

icance or importance.

A. The Question Of Whether The Fourteenth Amend-

ment Requires That Public Schools Provide, For

Linguistic Minorities, More Than Programs De-

signed To Correct Deficencies In Basic English

Skills Is Controlled By Previous Decisions Of This

Court.

In San Antonio Independent School District v. Rodriguez,

supra (1973), this Court held that education is not a

fundamental right guaranteed by the Constitution, at least

where basic minimal skills necessary for the exercise of basic

rights such as speech and voting are provided. But where the

state undertakes to offer education, it must be made avail-

able on equal terms and without segregation on the basis of

race or ethnicity. Brown v. Board of Education of Topeka,

347 U.S. 483 (1954) (Brown I). In Lau v. Nichols, supra,

96 LEO SLY AIRS BF Oy RVI

|

AE RITE RITA EL TO Ie TT MME NT OTE RE ATHENA I EIN SLITS LL INE EY

6

(1974), the school district was providing education on

equal, nondiscriminatory terms. But some 1,800 of its pupils

of Chinese ancestry were unable to speak or write or under-

stand English, the basic language of instruction in the schools,

and the school district was not helping them learn English.

This Court held that this constitured a breach of the school

system’s agreement with its funding source not to discriminate

on the ground of national origin contrary to $601 of the

Civil Rights Act of 1964, 20 U.S.C. §2000d.

It was urged on this Court in Lau that failure to provide

a program to meet the special needs of pupils with such

severe linguistic handicaps violated the Equal Protection

Clause. 414 U.S. at 566. But this Court chose, instead, to de-

cide the case on the basis of contractual terms incorporating

a requirement that affirmative steps be taken to rectify such

language deficiencies.

So here, this Court should decline to review and decide the

case on the basis of the Fourteenth Amendment. As in Lau,

it had been urged in the court below that $601 of the Civil

Rights Act of 1964 requires the implementation of a program

to remedy educational handicaps which burden members of

a linguistic minority.” The court of appeals, with the benefit

of this Court’s decision in Lau, found that the small number

of non-English-speaking pupils in the Denver schools were

receiving appropriate help in several programs directed to

their needs. (521 F. 2d 482, n. 21, 483, n. 22; App. pp. 56a-

59a), and that there was no violation of §601. Id., n. 22; App.

pp. 58a, 59a.

2No specific remedy was urged in Lau; the specific and comprehensive remedy

urged in this case was held, by the court of appeals, to “overstep the scope of a

remedy properly directed to [a $601] violation.” 521 F. 2d at 438; App. p. 59a.

ODO RUE CII Ge J Larne

ITT RIE LTR LTE TI IT PS EIEN LESS MEME LEIS SPLOT LN LS CLIO LEE LOLS PEPE LITE LIE LAR IEEE SPORT AE

LY ARIAS NE TORI PROT LISTE Ne TANT TT Me AL RTO IER SE A! TOON te SERA EL TCL Oe wh I as WTS OO bP a KS Bas

B. The Renewed Claim That The Vacated Remedy

Plan Was Justified By a Violation Of §601 Of The

Civil Rights Act of 1964 Raises No Question Re-

quiring The Attention Of This Court At This Time.

Petitioners suggest (Pet. p. 96) that the court of appeals

erred when it held that respondent had not violated $601 (42

USC. §2000d) by failing to rectify language deficiencies

(521 F. 2d at 483, n. 22; App. pp. 58a, 59a) and that “even

if such a violation were supported by the record . . . the Car-

denas Plan would . . . overstep the scope of a remedy properly

directed to the violation.” Id; App. p. 59a.

Petitioners do not claim that English language deficiencies

were not being rectified, as required by the 1970 guidelines,

(App. p. 320a) under $601. Rather, petitioners argue that a

1975 outline of “appropriate ‘affirmative steps’” (App. p.

326a) to rectify such deficiencies, promulgated by the De-

partment of Health, Education and Welfare in 1975, raises

the statutory standard to include pupils who speak and can

understand English. They then urge that such an outline or

guideline, promulgated pursuant to an Act of Congress, be-

comes the “minimum constitutional standard” under $5 of

the Fourteenth Amendment and Katzenbach v. Morgan, 384

U.S. 641 (1966) at 936, n. 10, and that these claimed new

standards of violation and remedy justify the Cardenas Plan.

(Pet. pp. 93-101)

A major problem with this issue is that it is not fully and

clearly presented. When the court of appeals determined that

$601 had not been violated, it did not have before it the 1975

guidelines and did not, therefore, decide whether they were

validly issued and, if so, whether they go further, as claimed,

than requiring steps to rectify language deficiencies of pupils

unable to speak and understand English, as previously re-

quired. Moreover, even if more is required under the 1975

guidelines, the Cardenas Plan would still appear to go far

oe |

Le AON, TELE ERNE DEA A TIES CAA NIEIS "SARS LN AA ENE SG RANT iio

beyond the program required by the new guidelines, and the

court of appeals has not decided that issue, either.

This case is not in a posture to permit clarification of “the

deference courts are to accord to HEW guidelines,” even if

the question is of general importance.

Il

The holding of the Court of Appeals that the Cardenas

Plan went beyond the nature of the constitutional violation

is fully in accord with this Court’s decisions and does not

conflict with the decisions of any other court of appeals.

A. The Court of Appeals Faithfully Followed this

Court's Guidelines.

In the nature of the matter, this Court, in trying to lay

down guidelines for the assistance of lower courts in elimi-

nating from the public schools all vestiges of state-imposed

segregation, could only “suggest the nature of limitations”

on the Court’s equitable remedial powers. Swann v. Charlotte-

Mecklenburg Board of Education, 402 U.S. 1 (1971), at 14,

31. This Court plainly stated, however,

“[n]Jo fixed or even substantially fixed guidelines

can be established as to how far a court can go,

but it must be recognized that there are limits.”

Ibid, at 28 (emphasis added )

The clearest limitation is the requirement that there be a

violation. “[A]bsent a finding of a constitutional violation,

[an educational policy within the discretionary power of a

school board] would not be within the authority of a federal

court.” Ibid, at 16

But even where there is a finding of violation, “the scope

of the remedy is determined by the nature and extent of the

violation,” Milliken v. Bradley, 418 U.S. 717 (1974), at 744.

These rules of limitation stand, of course, in tension over

against other rules emphasizing the “breadth and flexibility

REMY VNTR RE NIE RN ANS TONY NTT PLT DM 6

9

... inherent in equitable powers.” Swann, supra, at 15. But

the breadth of such powers is always subject to limits which

relate back to the constitutional violation found.

In this case, the violation found was the maintenance of a

dual system based entirely on official acts of pupil segrega-

tion. The basic and corresponding remedy, therefore, was de-

segregation of the pupils. In furtherance of pupil desegrega-

tion, teachers and staff were reassigned so as to eliminate

any “earmarking effect” of a racially identifiable faculty as-

signment pattern, Keyes, supra, at 202,

There was, however, no finding by the district court that

the School District’s curriculum and educational methods

operated to segregate pupils or stood in the way of the de-

segregation process, Nor was there any finding that the edu-

cational program was a product or vestige of the pupil

segregation. Thus, in the absence of a constitutional viola-

tion, the court of appeals had no basis upon which to ap-

prove that part of the district court’s order directing the

“overhaul of the system’s entire approach to education of

minorities.” 521 F. 2d at 480; App. p. 49a.

Even if failure to provide for the transition to English by

Hispano pupils unable to speak or unfamiliar with English

(380 F. Supp. at 695; App. p. 203a) constituted a separate

constitutional violation, apart from pupil segregation, the

court of appeals held that the Cardenas Plan was too broad

in scope when measured against that possible violation. 521

F.2d at 482; App. p. 54a. (See the appellate court’s descrip-

tion of the Cardenas Plan, 521 F. 2d at 480, 481; App. pp.

49a, 50a.)

For these reasons, the court of appeals vacated the order

requiring the Cardenas Plan and remanded with directions

to determine whether any relief was required for pupils

lacking proficiency in English, Ibid, at 483; App. pp. 59a,

60a.

3 ome mee hy

10

We submit that the ruling of the court of appeals in this

regard is wholly in accord with this Court’s guidelines in

Swann.

B. There is No Conflict Among the Circuit Courts,

and in Particular There is No Conflict Between the

Tenth Circuit and Fifth Circuit.

Outside the Fifth Circuit the only circuit court opinion

cited by petitioners (Pet. pp. 72, 73) dealing with the remedy

question is Davis v. School District of City of Pontiac, Inc.

474 F, 2d 46 (6th Cir, 1973). That case deals with whether

the power of a district court, where de jure segregation exists,

is broad enough to cover the creation of a particular adminis-

trative post. The Court of Appeals observed that such an or-

der is within the trial court’s discretion provided it was made

for the purpose of desegregating the school system. No bilin-

gual-bicultural plan was involved in this opinion or in any

other court of appeals opinions outside the Fifth Circuit cited

by petitioners.

In only one case did the Court of Appeals of the Fifth

Circuit approve a program for the schools similar to the

Cardenas Plan as a remedy for de jure ethnic segregation.

That was the San Felipe-Del Rio case. United States v. Texas,

466 F. 2d 518 (Sth Cir. 1972). In that case a compre-

hensive plan earlier prepared by Dr. Cardenas for the Depart-

ment of Health, Education and Welfare was proposed by the

newly consolidated school district. Del Rio appealed, but the

case was remanded to the District Court in contemplation of

an agreed modification of the plan. But differences among

the parties again arose and the District Court ordered the

implementation of the original comprehensive plan. On a

second appeal there was agreement between the parties that

the bilingual-bicultural plan would not be contested and the

School District’s motion for change of venue to another dis-

trict would not be opposed. The Court of Appeals granted the

motion for the change of venue and affirmed the judgment as

PYRE IR LIE TH —

—

Adi GE Gh a eas ear

11

to the remedy plan without comment. Thus, the Cardenas-

type plan was not tested in the Court of Appeals in an ad-

versary proceeding.

In no other case has the Court of Appeals for the Fifth

Circuit approved a desegregation remedy similar to the Car-

denas Plan.’ To the contrary, one of the latest opinions of the

Court of Appeals of the Fifth Circuit arising in Uvalde,

states that the entire question of whether a bilingual-bicultural

education program is necessary to permit Mexican-American

students to continue and develop intellectual capacity in

Spanish while gradually becoming proficient in English goes

to “a matter reserved to educators,” Morales v, Shannon, 516

F, 2d 411 (Sth Cir. 1975), at 414, 415.

The Uvalde case, which was decided July 23, 1975, was

remanded to the District Court with directions to implement,

as a remedy for de jure ethnic segregation, the remedy out-

lined in Cisneros Vv. Corpus Christi Independent School Dis-

trict. 467 F. 2d 142 (Sth Cir. 1972). The Court of Appeals

referred specifically to pages 152-154 of the Corpus Christi

opinion, which required, as the remedy for de jure segrega-

tion of Mexican-Americans, nothing more than the reassign-

ment of pupils and ethnic balancing of the schools. The Court

of Appeals, in the Uvalde case, refused to order the imple-

mentation of the bilingual-bicultural plan and remanded for

further consideration on a fresh record in the event the plain-

tiffs wished to try to show discriminatory practices in the

school district’s conduct of the Texas statutory elementary

school bilingual-bicultural program.

Even more recently, the Court of Appeals for the Fifth

‘In Arvizu Vv. Waco Independent School District, 495 F, 2d 499 (Sth Cir, 1974), a

bilingual and bicultural program was to be improved and expanded, but there is no

indication in the District Court’s order that the plan in Waco was as compre-

hensive and pervasive as the Cardenas Plan, Ibid. at pp. 1279, 1280, But more to

the point, the propriety of the plan was not appealed to the Court of Appeals and

was not commented upon there,

12

Circuit, in remanding a case for reconsideration after holding

that de jure segregation of Mexican-Americans existed in

New Braunfels, Zamora v. New Braunfels Independent

School District, 519 F. 2d 1084 (Sth Cir. 1975), added that

the remedy appropriate for such a violation should be con-

sidered in the light of Keyes, supra, United States v. Texas

Education Agency (Austin) 467 F. 2. 848 (Sth Cir. 1972),

and Corpus Christi supra. In the Austin case, the Court of

Appeals had required “the greatest possible degree of actual

desegregation” in accordance with Swann; bilingual instruc-

tion was mentioned only as an impermissible substitute for

adequate desegregation.

Thus, it is difficult to find the “direct conflict between the

Tenth and Fifth Circuits regarding the inclusion of bilingual-

bicultural and compensatory education components in court-

ordered desegregation plans” as asserted by petitioners (Pet.

pp. 81, 82). Whatever the circumstances of the San Felipe-

Del Rio situation, the consistent position of the Court of Ap-

peals of the Fifth Circuit in its most recent cases is to direct

a remedy which goes no further than desegregation or ethnic

balance.* In no other circuit has a plan similar to the Cadenas

Plan been approved. There is no real conflict among the cir-

cuit courts on this matter.

4A difference of nomenclature exists, however, between the Fifth and Tenth

Circuits. “ ‘Chicano’ is the diminutive of ‘Mejicano,’ and is, therefore, quite re-

strictive, and can be used only when referring to Mexicans or Mexican-Ameri-

cans.” (Dr. Daniel Valdez in La Luz, June, 1972, p. 61) In Denver most Spanish

origin persons come from rural New Mexico and Southern Colorado ( Plaintiffs’

Exhibit 20, p. 4) rather than from Mexico. Accordingly, “Hispano” is used in

Denver, while Mexican-American seems to be the term most commonly used

in Texas.

13

C. The Court of Appeals Correctly Determined the

Applicability of Federal Statutory Standards and

Regulations and Guidelines Promulgated There-

under; Its Decision in No Way Conflicts with any

Decision of this Court or any other Court of Ap-

peals Regarding the Applicability of such Stan-

dards Pertaining to Language Deficiencies of

Public School Pupils.

The petition (Pet. pp. 83-85) cites no decisions of this

Court or any court of appeals using the regulations and

guidelines of the Department of Health, Education and Wel-

fare as a standard for formulating relief for a Fourteenth

Amendment violation, where the relief in question is a bi-

lingual-bicultural plan such as the Cardenas Plan in this case.

Accordingly, the court of appeals decision here cannot be in

conflict with applicable decisions of this Court as with de-

cisions of other courts of appeal.

As for the contention that the HEW regulations and guide-

lines, without reference to other decisions on the point, were

not given the required weight by the court of appeals, we

submit that the court expressly considered all such matters

in its opinion. This contention of petitioners, like the one

discussed in Part I-B, supra, p. 7, asserts that HEW guide-

lines set the standard which the courts must follow. The dif-

ference is that the other contention claims that the guidelines

set both a standard for determining what the Fourteenth

Amendment requires for Equal Protection and a measure of

the scope of the remedy; the contention here is that the guide-

lines set a standard for the courts to follow in fashioning

remedies.

In this case the court of appeals expressly found that the

Cardenas Plan overstepped the scope of a remedy directed

to a violation of $601 of the 1964 Civil Rights Act, 42 U.S.C.

“Lau, supra, was expressly not decided on the basis of the Fourteenth Amendment.

14

§$2000d. At the time of the decision (August 11, 1975) the

court did not have before it the guidelines promulgated that

summer (App. p. 324a-359a). The prior guidelines and

regulations deal with pupils like those in Lau, supra, who are

unable to speak and understand English. App. p. 320a. The

court of appeals correctly held that the Cardenas Plan went

far beyond rectifying such a language deficiency. 521 F. 2d

at 483, n. 22; App. pp. 58a, 59a.

Petitioners claim that the new 1975 guidelines enlarge

the scope of the remedy for violation of $601. Whether or not

this is true, the court of appeals found that there was no viola-

tion of $601. Id; App. p. 58a, 59a. The issue raised here by

petitioners is thus not reached in this case unless a new viola-

tion is established upon remand. This is not the kind of im-

portant question contemplated by Rule 19 of the Rules of

this Court.

CONCLUSION

Respondents School District No. 1, Denver, Colorado,

et al, respectfully urge that the petition for certiorari should

be denied for the reasons stated above.

Respectfully submitted,

William K. Ris Thomas E. Creighton

900 Denver Club Building Michael H. Jackson

Denver, Colorado 80202 1415 Security Life Building

Denver, Colorado 80202

Attorneys for Respondents

Si te neal ———~