# Opposition Brief — School District No. 1 v. Keyes

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1976
- **Citation:** 423 U.S. 1066

## Text

—————-——

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 ———~

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1736%3A4. Public record. Not legal advice.