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IN·THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Nos. 96-1713L,
97-15422
THE ASSOCIATION OF MEXICAN-AMERICAN EDUCATORS, et. al.,
Plaintiffs-Appellants':"
Cross-Appellees
.
v.
THE STATE OF CALIFORNIA AND
THE CALIFORNIA COMMISSION ON TEACHER ·CREDENTIALING,
'"!'
Defendants-Appellees
Cross-Appellants
"
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
INTEREST OF THE UNITED STATES
The federal government supports fully the use of
standardized testing as one factor in assessing teacher quality.
Indeed, the Department of Education has made substantial grants
to numerous states and local school districts I
California , to improve their
system~of·teacher
including
testing.
Of
course, such testing must be propei:"l,Y validated a.s required by
federal civil rights laws, and we believe that compliance with
such laws is fully consistent with the federal government's
commitment to ,teacher quality.
The only question we address here
is whether California's system of testing is subject to judicial
review under Titles VI and VII of the Civil Rights Act of 1964.
We
~ubmit
that it is.
Pursuant to 42 U.S.C. 2000d-1, numerous federal agencies
have promulgated regulations to implement Title VI, which
prohibits a recipient of federal financial assistance fI·om
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discriminating on the basis of race, color, .or national origin in
its programs or activities.
42 U.S.C. 2000d.
Those regulations
prohibit, among other forms of discrimination, the use of
criteria that have unjustified discriminatory effects.
~,
34 C.F.R; 100.3(b) (2)
195.4{b) (2)
See,
(Department of Education) i 32 C.F.R.
(Department of Defense).
A federal agency may
initiate administrative action if it finds a recipient is not in
compli~nce with Title VI or its implementing regJlations.
~,
34 C. F. R. 100 .. 6-100.10.
See,
In addition, the Department of
Jus.tice coordinates federal agencies
I
enforcement of Title VI,
. Exec. Order No. 12 ,250 (45 Fed. Reg. 72,995 (1980.)), and has
authority to enforce Title VI in federal court..
42 U.S.C. 2000d
1.
Under·Title VII of the Civil Rights Act of 1964, 42 U.S.C.
2000e-5(f), the·Department of Justice has authority to initiate
,
suits against public employers, and the Equal Employment
Opportunity Commission (EEOC) has authority to initiate suits
against private employers.
Title VII prohibits, ~among other
things, employment practices that have an unjustified disparate
impact.
See 42 U.S.C.2000e-2(k).
The U.S. Department of Education's statutory mission is to
assist State and local educational agencies and other educational
institutions in improving the quality of, and promoting equal
access to, education.
20 U.S.C. 3402.
To carry out this
mission, the Department administers over 100 grant programs that
award over $35 billion a year, and supports and directly conducts
�06/01/00
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educational research, evaluations, and data collection.
It also
provides technical assistance and information to educational
agencies and schools.
A central priority of the Department is to·
. assist states in developing higher content and performance
standards for elementary and secondary
scho~l
students and in
aligning their curriculum, testing, and teacher standards and
preparation with these higher standards for students.
20 U.S.C.
5801, 5881-5889, 6311.
Teacher preparation and the
enhan~ement
of teacher quality
are central purposes o{ many statutes administered by the
Department: of Education, including, for example, the Teacher
Quality Enhancement Grant Program, which makes grants.to States
to support systemic efforts to improve teac~'ling quality. 1
U.S.C. 1021
seg.
See 20
This program includes a competitive priority
for States that strengthen their teacher certification
requirements to ensure that new teachers have strong content
knowledge and teaching skills.
See 20 U.S.C. 1025(b) (2).
The
statute also includes accountability provisions that require
annual State reports to the Secretary of Education on the quality
of teacher preparation in the State, including the performance of
teacher candidates on State certification examinations and annual
reports to the public by teacher preparation institutions on the
l'
In September 1999, the U.S. Department of Education funded
a three-year, $10.4 million grant to the State of California for
reforming State teacher certification requirements and for the
development of a new statewide assessment to evaluate teacher.
candidates for subject matter and pedagogical competence prior to
initial certification.
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pass rates of their graduates on teacher certification
assessments of the State in which the institution is located.
20
U.S.C. 1027.
The district court correctly observed that "the State has an
obligation Ito the public to maintain the highest 'standards of
fitness and competence for the weighty task of educating young'
impressionable students.
III
Association of Mexican-American
Educators v. California, 937 F. Supp. 1397,1402-1403 (N.D. Cal.
1996)
(citation omitted).
Moreover, this qbligation has become
As the National Commission on Teaching &
increasingly urgent.
America'£? Future explained:
Good teaching is more important than ever before in our
nation's history. Due to sweeping economic changes, tooay I s
world has little room for workers who cannot read, write,
and compute proficientlYi find and use resourceSi frame and
solve problems with other people; and continually learn new
technologies and occupations.' Blue-collar jobs that most
people once held wili comprise only 10% of total employment
'by the year 2000, arid the "knowledge work" jobs that are
replacing them require levels of knowledge and skill
previously taught to only a very few students.
"What Matters Most:
,Teaching for Al1'\erica' s
.
.!.
Futur~,
~.
.
II
Report of
the National commission on Teaching & America's Future, Summary
Report at 7-8 (September 1996) .
Teacher quality is the single most important in-school
factor influencing student achievement.
What teachers 'know and
do is the most important influence on what .students learn.
n
[S]tudies show that teacher expertise is the most important
factor in student achievement."
1 10 ne
Id.
(Full report) at 6. 2
study found that differences in teacher qualifications
(continued ... )
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-5
Properly validated basic skills tests are an effective means
to ensuring teacher quality.
The very nature of every teaching
position is to impart knowledge and skills to children and to
provide an educational role 'model for students.
The recently
released interim report of the National Academy of Sciences'
National Research Council on testing and teacher quality
concludes that:
A single test or set of tests can only measure some of
the characteristics associated with competent teaching.
Nevertheless, this difficulty do~ not negate the value
of assessing basic skills, subject-matter knowledge,
and pedagogical knowledge.
Tests and Teaching Quality: Interim Report, Committee on
,Assessment and Teacher Quality, Board on Testing and Assessment,
National Research Council at 23-24 (2000) [hereinafter IIInterim
Report"] .
Although there has been limited research on the extent to
which State tests are effective in distinguishing between
candidates who are competent to teach and those who are not, id.,
--...
.
evidence from studies that have addressed the re~ationships
~I ( ••• continued)
accounted for more ,than 90 percent of the variation in reading
and mathematics achievement among students in high-achieving and
low-achieving elementary schools. See ida at 7 {citing Eleanor
Armor-Thomas
al., An Outlier Study of Elementary and Middle
Schools in New York City: Final Report (New York City Board of
Education, 1989}). A review of 60 studies found that teachers'
ability, 'experience, and education are clearly associated with
increases in student achievement, and that devoting additional
resources to teacher education is the most productive investment
schools can make to raise student achievement. R. Greenwalls,
L. V. Hedges, and R. P. Laine, II The Effect of Scho.ol Resources on
Student Achievement," Review of Educational Research, Vol. 66,
pp. 361-396, Fall 1996.
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6
between students' and teachers' scores suggests that teachers'
test scores do help in predicting their students' achievement.)
There' is broad educational consensus that teacher employment or
certification tests are needed to help ensure teacher competence.
Forty-one States require prospective teachers to pass one or more
tests, either of basic skills, subject matter knowledge,
pedagogical knowledge and skills, or a combination of these
measur~s
.. See Interim Report at 10.
MoSt of
th~§e
states
require a test of basic reading and mat;ti.see iQ.. at 11.
Although Congress has .riot endorsed any particular state teacher
exam, it has implicitly endorsed state practices to .administer
these exams by holding States and institutions of.higher
education accountable for, among other things, the pass rate for
initial state teacher certification.
20 U.S.C. 1021-1030.
Of
course, such tests must comply with civil rights laws.
The United. States agrees that states should insist on high
levels of skills from their teachers.
The National Research
Council Report cited above makes clear that testJn.g basic skills
is not alone sufficient to' determine whether a te'acher candidate
will be, successful.
Therefore, the Department of Education
liSee, e.g., Ronald F. Ferguson with Jordana Brown,
"Certification Test Scores, Teacher Quality, and Student
Achievement U (Malcolm Wiener Center for Social Policy, John F~
Kennedy School of GovernmeQt, Harvard University), at 133-157
(April 1998}iLinda Darling-Hammond, "Teacher Quality and Student
Achievement: A Review of State Policy Evidence,!! Education
Policy Analysis Archives at 1,.9 January 2000i Robert P. Straus
& Elizabeth A.Sawyer, "Some New Evidence on Teacher and Student
Competencies,1I Economics of Education Review, Vol. 5, at 41-48
(1986) .
�·06/01/00
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-7
provides millions of dollars in federal aid to assist in
recruiting, preparing, and supporting high quality teachers who
have not only basic skills, but also subject matter expertise and
excellent teaching skills.
While fully supporting the use of tests to ensure teacher
quality, the United States maintains that teaching positions are
not exempt from Title VI and Title VII standards.
These
standards require job criteria that have a disparate impact to be
justified as job related for the positions in question and
consistent with business necessity.
Teacher testing, like
testing of other employees, must be conducted within the
requirements of federal law.
Indeed, we believe that compliance
with federal civil rights laws is fully consistent with a
co~mitment
to teacher quality.
The civil rights protections are
designed to ensure that standards accurately measure and identify
the best candidates for the job.
It·is the position· of the
United States that a properly validated test that measures .basic
skills is an·appropriate requirement for elementary and secondary
school teachers.
Federal nondiscrimination laws are consistent
with the establishment of high standards for all students and
teachers.
STATEMENT OF THE ISSUES
The United States as amicus curiae will address two
jurisdictional issues:
1.
Whether California's Commission on Teacher
Credentialing's (CTC's) administration of the California Basic
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-8
. Educational Skills Test (CBEST) is subject to scrutiny under
Title VI.
2 .. Whether the panel erred in ruling that the CTC IS
administration of the CBEST is not subject to Title VII.
STATEMENT OF THE CASE
1.
Plaintiffs, black, Hispanic, and Asian pro~pective
teachers and administrators in California's public schools,
""
challenge the'State's and California's Commission on Teacher
Credentialing's (CTC's) administration of the California Basic
Educational Skills Test (CBEST), a basic reading, writing, and
mathematics test.
This test is given only to those persons who
seek teaching or administrative positions in California's publ];c
schools; private school teachers and administrators are not
required to take the CBEST.
Plaintiffs assert that the test
violate'S Titles VI and VII of the Civil, Rights Act of 1964
because it has a disparate impact on blacks, Hispanics, and
Asians I
and is not job-related Or consistent with business
necessity.
California's Board of Education has received substantial
federal· financial assistance continuously since 1983.
The
majority of these funds are distributed by the State's Department
of Education to local school districts.
See Association of
Mexican-American Educa:tors v. California (AMAE I)
1534, 1537 (N.D. Cal. 1993).
I
836- F.· Supp.
However, the parties agreed I
in the
district court, that the CTC itself did not receive any federal
funds.
�06/01100
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.
!gIOll
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-9
The district court denied cross-motions for summary
judgment, holding that the test was subject to judicial scrutiny
under Titles VI and VII.
See AMAE 1,83.6 F. Supp. at 1541-1543.
The district court held that since the State of California
created the CTC .and required passing the CBEST as a condition for
certificated employment in the State's public
schools~
it was
responsible for ensuring that the CBEST satisfies the
antidis~crimination
standards of· Title VI.
See id. at 1541, 1543.
In addition, the district court concl~ded that the C~C is part of
a public "sbhool system" that receives federal financial
assistance, and thus is subject to Title VI.
1545; 42 U.S.C. 2000d-4a(2) (B).
See id. at 1544
While the CTC does not itself
participate in a school district's hiring decisions, the court
noted that the districts may not hire anyone who has not passed
the CBEST.
See AMAE I, 836 F. Supp. at 1544.
The district· court rejected the.State's ass~rtion that the
CBEST is akin to a licensing exam and, for that reason, not
subject to Title VII.
See AMAE 1,836 F. Supp. at 1549.
Moreover, following the analysis of Sibley Memll Hosp. v. Wilson,
.488 F.2d 1338 (D.C. Cir. 1973), the district court held that. if
the test does not satisfy the anti-discrimination requirements of
Title VII, then defendants can be liable under Title VII for
interference with the plaintiffs' employment relationship with a
third party.
At trial, the parties debated the sufficiency and adequacy
of three content validity studies submitted.by the State.
The.
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:
I
district court ultimately rejected the merits of plaintiffs'
claims.
While the CBEST had a disparate impact on minorities,
the court concluded it was lawful because it was job-related and
justified by business necessity.
See Association of Mexican-
American Educators v. California (AMAEII), 937 F. SUppa 1397,
1403 (N.D. Cal. 1996).
2.
Both parties appealed and a divided panel issued an
".
opinioI} on July 12, 1999.
See Association of Mexican-American
Educators v. California, 183 F.3d lOSS, ,-amended and superseded,
195 F.3d 465 (9th Cir.1999).
a~d
the district court ruling
The panel reversed a portion ~f
held that the test was not subject
to the requirements of either Title VI or Title VII.
195 F. 3d at 474,-484.
(:BEST.
See AMAE,
The panel also affirmed the validity of the
See ida at 485-492.
3.
The plaintiffs filed a Petition for Rehearing and
Rehearing En Banc.
Approximately two weeks later, the defendants'
notified the court that the CTC, in fact, had received federal
funds from the Department of Defense since
,the federal Troops to Teachers Program.
seq.
March~,
1996, under
See 20 U.S.C. 9301 et
Under this program, CTC serves as an information
clearinghouse 'for Cali fornia programs thi:tt help former members of
the Armed Forces and defense contractor employees to begin a
second career in teaching.
purposes of this appeal,
covered by Title VI."
The defendants conceded that IIfor
* * *
since March 7, 1996, the CTC is
Notice To The Court Of A Change In
Circumstances at 2 (August 17, 1999).
�06/01/00
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-11
On October 28, '1999, the panel amended its opinion by adding
a footnote.
See AMAH, 195 F.3d at 475 n.3.
After noting the
defendants' Notice and CTC's receipt of federal funds beginning
in 1996, the court stated:
[A]s Plaintiffs have argued that Defendants are liable
for actions before 1995, our findings as to the non-'
applicability of Title VI before 1995 are still
relevant.
To the extent that Plaintiffs have sought
recovery under Title VI after 1995, we rely upon the
alternative holding that Title VI was satisfied.
I.l:2iQ.. (emphasis added) .
",
J!
The plaintiffs again petitioned for rehearing and rehearing
en banco
In response, the defendants retracted their concession
of Title VI jurisdiction since March 1996, based on the Third
Circuit' sopinion in Cureton v. NCAA, 198 F. 3d lOT (1999).
On
March 27, 200.0, this Circuit ordered rehearing en banc and
vacated the panel opinion except to the extent it is reinstated
by the en banc Court.
4.
In July 1999, approximately one month before defendants
filed their Notice Of Change In Circumstances stating that CTC
was, in fact, a recipient of federal funds
sinc~,early
1996, the
U.S. Department of Education awarded California's Title II
Teacher Quality Enhancement State Grant. 4
Pursuant to this
three-year grant, beginning September I, 1999, the CTC has
received federal funds to lead the State's effort to develop a
,
,
r
California's Office of the Go~ernor submitted ~he
application although the CTC is the recipient, fiscal agent, and
payee of funds from the Department of Education. A copy of the
Application for Federal Financial Assistance, California's'
Revisions to the Year One Budget Proposal and award documents
from the Department of Education are included in 'the Addendum at
pages 1
if
�06/01100
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-12
standards-based Teaching Performance Assessment (TPA) and reform
the State1s teacher licensure and certification requirements. s
Funding for the first year totals $3,257,866.
SUMMARY OF ARGUMENT
Plaintiffs assert a fldisparate impact" challenge to CBEST
under both Titles VI and VII of the Civil Rights Act of 1964.
is generally recognized
-~
It
and the parties do not dispute -- that
an employment test that has a disparate impact up~n minoritie~ is
lawful under Titles VI and VII only if the defendant can
demonstrate that the test is IIjob-related for the position in
question and consistent with business necessity,
II
and there is no
equally effective alternative with less. adverse impact.
U.S.C. 2000e-2(k} isee In re:
42
Employment Discrimination Litig.
Against The State Of Alabama, 198 F.3d 1305, 1311-1314 (11th ·cir.
1999)i Lanning v.
Southeastern Pa. Transp. Auth., i81 F.3d.478,
487 (3d Cir. 1999), cert. denied, 120 S. ct. 970 (2000)
i
Larry P. v. Riles, 793 F.2d 969, 982 n.9 (9th Cir. 1984)
see also
(Title
VII disparate impact standards apply to disparate'impact ,claims
brought pursuant to Title VI regulations) .
Defendants contend, however, that theCBEST is beyond the
.
.
,
,
I
I
I
reach of both Title VI and Title VII, because CTC neither
receives. federal funds in connection with this test, nOr employs
plaintiffs.
,
I
.
In our view, both statutes apply to CTC, and thus
2.1
Under the grant, . CTC, with other state education agencies
and universities, also will take steps to increase teacher
quality, develop strategies to better prepare undergraduates for
the teaching profession, and reduce the mathematics teacher
shortage in targeted locations.
�06/01100
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the test is subject to judicial· scrutiny under both statutes.
First, as a recipient of federal funds, the CTCis subject to the
requirements of Title VI.
See Department of Transp. v. Paralyzed·
Veterans of Am., 477 U.S. 597, 605 (1986).
In addition, given
the civil Rights Restoration Act of 1987, a claim asserting a
I
. I
disparate impact violation of ·Title VI need not be "program
specific"; that is, the alleged discrimination need not be in a
program or activity that receives federal assistance.
See 42
U.S.C. 2000d-4aj S. Rep. No. 64, 100th .Cong., 1st Sess. 7-10
(1987) .
i.
Second, the State and eTC need not be the plaintiffs' direct
employer to be subject to Title VII.
defendants'
'~equirement
A claim alleging' that the
of the CBEST for public school employment
unlawfully interferes with a failing applicant's ability to seek
such employment is cognizable under Title VII.
See Gomez v.
Alexian Bros. Hosp., 698 F.2d 1019, 1021-1022 (9th Cir. 1983);
Sibley Mem'l HOsp. v. Wilson, 488 F.2d 1338, 1341 (D.C. Cir.
1973).
Moreover, the CBEST constitutes a conditfon of employment
subject to Title VII -- as opposed to a licensing examination
exempt from Title VII -- because the examination is limited to
individuals seeking public school employment, and applica'nts
cannot obtain such employment without passing the CBEST.
U.S.C. 2000e-2(k)
j
Cal~
Educ. Code 44252(b) .•
ARGUMENT
I
DEFENDANTS' ADMINISTRATION OF. THE CBEST IS
SUBJECT TO CHALLENGE UNDER TITLE VI
See 42
�06/01/00
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i·
-14
1.
Title VI of the Civil Rights Act of 1964, 42 U.S.C.
2000d et seq., prohibits a recipient of federal financial
assi~tance from discriminating in its programs or activities on
/
the basis of race, color, and national origin.
See Department of
Transp. v. Paralyzed Veterans of Am., 477 U.S. 597,605 (1986)
(recipient of federal funds agrees, in nature of contract, to
comply with nondiscrimination obligations).
Since March 1996,
the Cal'"ifornia Commission on Teacher Credentialing has received
federal funds from the Department of Defense as part of the
. Troops to Teachers program, 20 U.S.C. 9301 et seq.
More
recently, theCTC also has received funds from the U.S.
Department of Education.
If a recipient is a public entity, all of its programs and
activities or operations are subject to Title VI, without regard
to the specific purpose of federal assistance.
2000d-4a(1)-(2)
(1987).
I
!
I'
I
i
See 42 U.S.C.
S. Rep. No. 64, lOOth Cong., 1st Sess. 4, 16
For example, all of the operations of a state agency or
instrumentality are subject to Title VI even
thou~h_federal
funding may be limited to one specific program.
2000d-4ai S. Rep. No. 64, supra, at 16. 6
See 42 U.S.C.
Moreover, if one agency
receives federal funds, and transfers funds to a second agency,
all of the operations of both. entities are subject to Title VI.
§j
"For the purposes of this subchapter, the term 'program or
act,ivity' and the term 'program' mean all of the operations of
* * *a department, agency, special purpose district, or other
instrumentality of a State or of a local government * * * any
part of which is extended Federal financial assistance." 42
U.S.C. 2000d-4a(1) (emphasis added).
�06/01/00
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-15
The CTC was created by the California legislature and,
therefore, constitutes an instrumentality of the State.
I
1
U.S.C. 2000d-4a(1) (A).
See 42
Because CTC receives federal funds, all
of its operations, including the administration of the CBEST, are
subject to Title VI.
See 42 U.S.C. 2000d-4a(1)
Landau, 883 F. 2d 1481, 1483 (9th Cir. 1989)
(II
i
cf. Radcliff v.
[r] eceipt of
federal financial assistance by any student or p6rti~n of a
school thus subjects the entire school .to Title VI coverage ll )
•
Thus, the panel correctly concluded that Title VI applies to the
CTC after 1995 by virtue of its receipt of federal funds under
.the Troops to Teachers program.
See Association of Mexican
American Edu·cators v. California, 195 F.3d465, 475 n.3
1999)
I.
1
(9th Cir.
(liTo the extent that Plaintiffs have sought recovery under
Title VI after 1995, we rely upon the alternative holding that
Title VI was satisfied.
2.
II)
.7
In their Response To The Petition For Rehearing,
defendants asserted that this Circdit should fol~ow the Third
i
Circuit's analysis in Cureton v. NCAA, 198 F.3d 107 (1999), and
dismiss plaintiffs'Title VI disparate impact claim.
Defendants
now assert that since plaintiffs' disparate impact claim derives
from the Title VI regulations, that claim must fail because the
regulations require a "program specific" connection between the
1/
Given the unequivocal Title VI coverage since March 1996,
the United States will not address in this brief whether the CTC
was subject to Title VI prior to 1996, particularly as this
analysis turns, in part, on issues of state law.
�06/01100
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141018
16
-j.
funding'andthe alleged violation.
I
The Third Circuit in Cureton was wrong, and this Court
!
I
should not adopt its analysis.
The Cureton holding directly
conflicts with the Civil Rights Restoration Act of 1987, Pub. L.
No; 100-:-259, 102 Stat. 28 (1988)
I
(Restoration Act), which
Congress enacted to overturn the Supreme Court's holding in Grove
City.
'See S. Rep. No. 64, 100th Cong., 1st Sessa 2, 4 (1987).
In tha"t case, the Supreme Court interpreted the phrase
or act'ivityll in Title IX of the
U.S.C. 1681 et seq.
, I
I
Educat~on
II
program
Amendments of 1972,· 20
(a statute patterned after Title VI) to limit·
the coverage of Title IX to only those portions of an entity that
receives federal funds.
In response, the Restoration Act amended
Title 'VI, Title IX, and analogous' statutes' to define "program or
activityn to include "all of the operations of" an entity, "any.
part of which is extended Federal financial assistance.
II
Pub. L.
No. 100-259{ §6, 102 Stat. 31, codified at 42 U.S.C. 2000d-4a.
The language and legislative history of the ,Restoration Act
make clear that the statute I. s broad definitions-of "program" and
"program or activity"applyto all Title VI regulations {
di~c'riminatoryeffects
including the
regulations.
The
Restoration,Act states that its purpose is lito restore the prior
consistent and long-:standing executive branch interpretation and
broad, institution-wide application of those laws as previously
administered.
II
Pub. L. No. 100':'259,
(emphasis added).
§
2(2), 102 Stat. 28
This reference to "executive branch·
interpretation ll indicates that Congress intended its overruling
�06/01100
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17
of Grove City to apply not only to Title VI itself, but ,also to
the administrative regulations interpreting the statute.
The legislative history confirms this interpretation.
A
'Senate committee report found "overwhelming" evidence that for
nearly two decades prior to Grove City, both Republican and
Democratic administrations had interpreted Title VI, Title IX,
and their implementing regulations as having lithe institution
wide coverage that Congress intended.
10; accord id. at 3, 7-9.
S. Rep. No. 64, supra, at
1I
For example", the Report emphasized
"
,
that a former cabinet secretary had testified that coverage of
Title IX "was exceedingly broad and that this broad coverage was
reflected in the Title IX regulations promulgated during his'
tenure."
Id. at 9.
The Report confirmed that the purpose of the
Restoration Act was lito .reaffirm" these "pre-Grove 'City College
*
*
*
executive branch interpretations."
rd. at 2.
Similarly,
the House Judiciary ,Committee recognized that n[f]rom the
outset," the "Title VI enforcement regulations" provided "broad
coverage" and were "intended to apply to the entity which has
received federal funds, not just to previously identified
particular programs for which funds are earmarked.
II
H.R. Rep.
No. 829, Pt. '1, 98th Cong., 2d Sess. 23-24 (1984).
When Congress enacted the Restoration Act it was well aware
of the Title VI effects regulations, which the Supreme Court had
already held valid in Guardians Ass'n v. Civil Servo Comm'n, 463
.
U.S. 582 (1983).
See,~,
24 (discussing Guardians).
'
.
. ,
H.R. Rep. No. 829, Pt. 1, supra, at
Senator Kennedy, a primary sponsor of '
�06/01/00.
16: 07
141020
-18
the legislation, explained that "title VI regulations use an
effect standard to determine violations and that the Federal
courts have upheld the use of an effect standard."
Rec. 229 (1988)
Kennedy)
i
134 Congo
see also 130 Congo Rec. 27,935 (1984)
(Sen.
(judicial decisions approving discriminatory effects
regulations "will remain in effect after enactment of this
billll).
A case involving the discriminatory effects of certain
educational practices was included among the Senate Report 1 s
examples of pending administrative cases that were not being
,'I
.
addressed on the merits because of Grove City, but for which the
Act would restore coverage.
See S. Rep. No. 64, supra, at 13. 8
Consistent with that congressional ·intent, federal agencies
have interpreted the coverage of the Title VI regulations,
including the discriminatory effects regulations, to reach those.·
programs that fall within the broad statutory definj,.tion of
l1program."
See 42 U.S.C. 2000d-4a.' The Department of Justice,.
which coordinates executive branch enforcement of Title VI, has
emphasized that the Restoration Act. was designed.:: to restore tithe
broad interpretation of coverage" reflected in the "original
regulations implementing Title VIII; thus, federal agencies
IIshould consistently apply the Act's definition to all of the
activities of a recipient," and "should review their own
compliance programs to ensure that decisions regarding
.!!/
Individual members of Congress also expressed their
understanding that prior administrations had interpreted the
regulations as having institutionwide coverage.
See, e.g., 134
Congo Rec. 247 (1988) (Senator P~ckwood) i 130 Congo Rec.
18,837(1984) (Representative Panetta).
�06/01100
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-19- .
jurisdiction currently reflect the Restoration Act's definition
of program or activity,"
(Spring 1995)
9 Civil Rights Forum No,
(Excerpts in Addendum, pp,
I, at 3
119~120),
The
Department has taken the same position in policy guidance to
agencies in enforcing Title VI,
See,~,
Memorandum from
Acting Assistant Attorney General, Civil Rights Division,
"Enforcement of Title VI of the Civil Rights Act of 1964 and
Relate~
Statutes in Block Grant-Type Programs" 5 :{Jan. 28, 1999)
(See'Addendum, pp, 113-118).
.'
Moreover, on May 5, 2000, the Department of Education issued
a Notice of Proposed Rulemaking (NPRM) that modifies. its Title VI
implementing regulations. to incorporate the statutory definition
of "program."
See 65 Fed. Reg. 26464 (May 5, 2000) . A s set
forth in the Preamble, this modificatioh'does !l.Q.!;. reflect any
change in the Department of Education's institutibnwide
interpretation of its regulations.
.
.
See. 65 Fed. Reg, 26464 -26465,
This NPRM is m~rely cautionary action to avoid any further
judicial rulings that adopt the
Cu~eton analysis~and
improperly
limit the agency's enforcement authority.9
In addition, CTC has received federal funds since September
1999 for the. Title II Teacher Quality Enhancement State Grant.
See infra, p,_; Addendum,' pp. _ '
A primary purpose of this
,21
This modification does not have any effect. on the
assessment of plaintiffs' claims prior to its issuance as a final
rule, The preamble, however, illustrates the Department of
Education's prior interpretation of the institutionwide coverage
of its regulations, including the discriminatory effects
prohibi tion, .
�06/01/00
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~022
-20
grant is to modify the State's teacher certification and
licensing program.
The CBEST is a central element of the
defendants' existing certificat;ion program.
See Cal. Educ. Code
44252(b) , 44830(b). Thus, plaintiffs' challenge to the·
administration of the CBEST encompasses the very "program ll now
funded.
Accordingiy, even if this Circuit adopted the Third
Circuit's "program specific" requirement as set forth in Cureton,
Title VI indisputably applies to the CTC's admin.l:stration of the
CBEST since September 1999.
II
THE CBEST IS SUBJECT TO CHALLENGE
UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964
The panel erred in its conclusion that CTC's administration
of the CBEST
~s
nqt subject to challenge under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.
First, the
panel erred in concluding that Title VII did not apply on the
ground that the CTC and state are not the plaintiffs' employers.
See AMAE, 195 F.3d at 482-483.
Second, the panel erred in
characterizing the CBEST as a 1 ic.ens ing examination rather than a
qualification for public employment.
1.
See id. at 483-484.
The panel concluded that the plaintiffs, if hired,
would be employed by the local districts and not by either
defendant.
Given the absence of an employer-employee
,
relationship between the parties, the panel held that there was
no Title VII jurisdiction.
See AMAE, 195 F.3d at 482-483.
In
reaching this conclusion,. the panel failed to follow settled
Title VII law, including Ninth Circuit precedent.
'See"Gomez v.
�~023
06/01/00
16:09
-21
Alexian Bros. Hosp., 698 F.2d 1019, 1021-1022 (9th Cir. 1983);
Sibley Mem'l Hosp. v. Wilson, 488 F.2d 1338, 1341 (D.C. Cir.
1973) .
Title VII prohibits action by an employer directed not only
at its own employees and applicants, but also activity that
interferes with another's employer-employee relationship on
grounds prohibited by Title VII.
42 U.p.C. 2000e-2{a) (1).
See Sibley, 46,8 F.2d at 1341i
Title VII prohibits discriminatory acts
"
against \lany individual," rather than-acts directed' at an
employee.
1341. 10
42 U.S.C. 2000e-2(a) (l)i see Sibley, 488 F.2d at
In Sibley, a male private duty nurse hired by .patients
in. defendant's hospital alleged that the hospital. ipterfered w.i th
his employment relationship with patients at the hospital because
of his sex.
See Sibley, 488 F.2d at 1339-1340.
As the D.C.
Circuit explainep:
To permit a· covered employer to exploit. circumstances
peculiarly affording it the capability of
discriminatorily interfering with an indivi4ual's
employment opportunities with another employer, while
it could not do so with respect to employment in its
own service, would be to condone continued use of the
very criteria for employment that Congress has
prohibited.
.
101
Cf. Robinson v. Shell 'Oil Co.
519 U. S. 337, 345, 346
(1997) ("employee," as used in Section 2000e-:,3 (a), Title VII I S
prohibition on retaliation, encompasses former employees; II [t]o
be sure, 'individual'. [as used in Section 2000e-2, general
prohibitions] is a broader term than 'employee and would facially
seem to cover a· former employee * * * as well as other persons
who have never had an employment relationship with the employer
at issue").· In addition; Titl.e VII's remedies provision, 42
U.S.C. 2000e-5(g), encompasses relief that may be afforded an
individual other than an employee; ~, injunctiverel'ief·and..
backpay.
.
I
.
�06/01/00
@024
16:09
-22
. at 1341.
Many circuits, including this Circuit, have
followed Sibley and concluded that Title VII extends beyond the
direct employer-employee relationship to prohibit unlawful
interference with a plaintiff's employment opportunities or
relationship with another employer.
See Bender v. Suburban
,Hosp., 159 F.3d 186, 188 (4th Cir. 1998)
(without itself
deciding, notes all circuits to consider question have followed
SibleYL· l l
In Gomez, plaintiff, a contracting:' company president,
alleged that a hospital refused to contract for his company's
services based on race.
This Circuit cited Sibley, 488 F.2d at
1431, and held that plaintiff stated a valid claim since the
hospital's alleged discriminatory actions interfered with the
plaintiff's employment relationship with his employer, albeit his
own company.
See Gomez, 698 F.2d at 1021. 12
A plaintiff's
opportunities for future employment in a given field need not be
foreclosed completely in order to state a claim of interference
.under Title VII; the plaintiff needt'only show thai:: conditions or
opportunities for employment are different than they would be
absent discrimination.
See ,ibid.; see also Lutcher v. Musicians
I.V
See,~, Zaklama v. Mt. Sinai Med. Ctr., 842 F.2d 291,
293 (11th Cir. '1988); Spirt v. Teachers Insur. and Annuity
Assoc., 691 F.2d.1054, 1063 (2d Cir. 1982), vacated on other
grounds, 463 U.8.1232 (1983).
,
ll/Subsequently, this Circuit clarified that Gomez concerned
the consequences to several employees of t.he plaintiff's company,
and not just the consequences of interference to a sole
shareholder and sole employee. See Mitchell v. Frank R. Howard
Memll Hosp., 853 F.2d 762,767 (1988), c,ert. denied, 489 U.S.
1013 (1989).
�06/01/00
@J025
16: 10
-23
Union Local 47, 633 F.2d 883 n.3 (9th Cir. 1980)
(re~o~nizes
Title VII applies to instances where defendant interferes with an
individual's "employment opportunities with another employer,
II
but not business opportunities for an independent contractor);
cf.Eldredge v. Carpenters 46 N. Cal. Counties Joint,
Apprenticeship and Training Comm., 833 F.2d 1334 (9th Cir. 1987),
cert. denied, 487 U.S. 1210 (1988)
(defendant cannot avoid Title
VII liability by delegating administration of neutral practice
with disparate impact to third party) '.p
2.
It is well established that the use of selection
criteria, including an examination, to assess whether an
applicant satisfies,the minimum qualifications for a position is
subject to Title,VII.
See 42 U.S.C. 2000e-2{a),
(k);
see also
Allen v. Alabama State Bd. of Educ., 164 F.3d 1347 {11th Cir.
1~99)
(Title VII prohibits selection proces~es th~t "result in an"
unjustifiable discriminatory impact U on minorities); Griggs v.
Duke Power Co., 401 U.S. 424, 432-436 (1971).
dispa~ate impact,
If the test has a
it 'may only be ut~ilized if it-is shown that it
g/
Notwithstanding the panel's statement that a parent
corporation is IInot usua:J..ly u considered the employer of a
subsidiary's employees under Title VII, see AMAE, 195 F.2d at
482, citing Watson v. Gulf and Western Indus., 650 F.2d 990,(9th
Cir. 1981), a parent corporation may be liable when it actively
participates in or directs the subsidiary's operations.
See
United States v. Bestfoods, 524 U.S. 51, 71~72 (1998); Watson,
650 F.2d at 993 (livery different case ll of potential liability if
parent corporation "participated in or influenced the
[subsidiary's] employment policies U ) . Here, the statutory
requirement that local 'districts hire only teachers and
administrators who pass CBEST is comparable to a parent
corporation participating in a subsidiary's employment policies
and practices, and therefore defendants can be held liable'for
any discrimination that results, from such statutory requi:cern~nts.
�06/01100
@026
16:10
-24
is «consistent with business necessity" .and is "job related," and
no less discriminatory alternative exists.
see In re:
42 U.S.C. 2000e-2(k)
i
Employment Discrimination Litig. Against The State Of
Alabama, 198 F.3d 1305, 1311-1314 (11th Cir. 1999); Lanning v.
Southeastern Pa. Transp. Auth., 181 F.3d 478, 487
(3d Cir. 1999),
"cert. denied, 120 S. Ct. 970 (2000).
In California, the CBEST is
CTC.
administ~red
primarily by the
~ignificantly, the governing board of a school district may
also administer the CBEST.
See Cal. Educ. Code 44830{b) (1).
The
panel relied heavily on its determination that the CTC and State
are not the plaintiffs' employers to conclude that the CBEST
cannot be an "employment" examination, and therefore must be a
licensing examination;
See Association of Mexican-American
Educators v.
195 F.3d 465, .482-483 (9th Cir. 1999) ;
see also Fields v. Hallsville Indep.
1019-1020 (5th Cir. 1990)
Sch~
Dist., 906 F.. 2d 1017,
(State examination for prospective
teachers considered a licensing exam because the defendant
administering the exam is not the p"laintiff ';s employer), cert.
denied, 498 U.S. 1026 (1991).
The reasoning of the panel and the Fifth Circuit in Fields,
906 F.2d at 1019-1020, is fundamentally flawed.
Under this
analysis, the panel's conclusion would differ, despite the same
.examination (CBEST) with the same consequence (inability to apply
for public school employment), based on whether the examination
was administered by the CTC or a school district.
The CBEST
should not be considered a IIlicensing" exam when administered by
�06/01/00
16:11
I4J 027
-25
theCTC, but an employment selection device· subject to Title VII
when administered by a school district.
Who administers the
CBEST should have nO,bearing; the significant fact is that
applicants who fail the CBEST may not be considered for public
school employment.
The panel's and the Fifth Circuit's approach
begs the central question of what is the nature and manner of
utilization of the examination in question, i.e., is passage of
this e?Cam a condition of public employment?
Cf.~'AMAE,
195 F.3'd
at 482-483; Fields, 906 F.2d at 1019-1Q20.
Cases holding that entities that- issue licenses or
administer licensing exams, such as boards of dentistry, are not
subject to Title VII are inapposite.
Cf. George v. New Jersey
Bd. of Veterinary Med.· Exam/rs, 794 F.2d 113, 114 (3d Cir. 1986).
(agency performing police fUnctions of State not subject to Title
VIIi agency is not ari·uemployerl! with respect to the plaintiff
applicant); Haddock v. Board of Dental Exam/rs, 777 F.2d 462, 464
(9th Cir. 1985)
(board is not an "employer" with respect to the
plaintiff and fellow examinees); Woodard v. Virginia Bd. of Bar
Exam/rs, 598 F.2d 1345, 1346 (4th Cir. 1979)
not an tlemployer").
(per curiam)
(board
This Circuit and other courts have concluded
that the licensing entity is exempt from Title VII either because
the state is creating the entity or imposing conditions pursuant
to its police powers, or the 'entity does not meet Title VII's
definition of "employer" vis-a-vis the applicant.
See George,
794 F.2d at 114; Haddock, 777 F.2d at 464.
These licensing entities have been described as performing
�06/01100
16:12
I4J 028
-26
an "'in-or-out' screening function for the public
~
it has the
power to decide, on behalf of and.for the good of the public, who
is and who is not qualified to participate in a given
profession.
II
Morrison v. American Bd. of Psychiatry and
Neurology, Inc., 908 F. Supp. 582, 586 (N.D. Ill. 1996)
(a board
that. assesses a psychiatrist's qualifications for certification,
yet is not determinative of the psychiatrist's practicing in the
field,~is not a licensing entity exempt from Titre VII).
Thus, a
licensing authority imposes standards qn an entire profession and
are given primarily to regulate private conduct.
It: is
ordinarily unnecessary, however, for a public entity to issue a
license to regulate the conduct of its own employees.
A critical distinction between the CTC's administration of .
the CBEST and dentistry or attorney licensing examinations that
was recognized by
the~istrict
court, see AMAE I, 836 F. Supp. at
1549-1550, yet was discounted by the panel, is that the CBEST is
given only to prospective teachers and administrators in the
public schools.
See AMAE, 195 F.3d at 483.
Teachers and
.
administrators in California's private schools are not required
to take the CBEST.
Thus, the CBEST affects an individual's
ability to pursue public employment, but does. not bar all
prospects of working in a given profession as a licensing exam
would.
Cf.Morrison, 908 F. Supp. at 586 (Title VII claim
against psychiatry certification board survives motion to. dismiss
for failure to state a claim).
Accordingly, the panel erred in
concluding that the defendants' administration of the CBESTis
�06/01100
16:12
IgJ029
-27
not subj ect to Title VII. 14
CONCLUSION
Defendants' administration of the CBEST is governed by the
antidiscrimination requirements of both Titles VI and VII of the
Civi~
Rights Act of 1964.
Respectfully submitted,
ANITA S. HODGKISS
Deputy Assistant
Gen~ral
:'
~ttorney
.'
DENNIS J. DIMSEY
. JENNI FER LEVIN
Attorneys
Department of Justice
P.O. Box 66078
Washington,· D,. C.
20035-6078
(202)
305-0025
lil
Because we do not have the complete record and had limited
time to prepare and file this brief, the federal government takes
no position on the question whether CBEST has been properly
validated, but argues only that it is not/exempt from the-laws
requiring such validation.
�06/01/00
16: 13
Id.J 030
CERTIFICATE OF COMPLIANCE
I
hereby certify that the foregoing Brief For The United
States As Amicus Curiae contains
words.
Jennifer Levin
Attorney
�06/0l/00
16:13
~031
CBRTIFICATB OF SBRVICB
I,Jennifer Levin, hereby certify that 'on this __th day of
May
,2000, I served by Federal Bxpress, next business day
delivery, ,two copies of the Brief For The United States As Amicus
Curiae on the following counsel of record:
Public Advocates, Inc.
John T. Affeldt
Mark Savage
1535 Mission Street·
San Francisco, CA94103
The Impact Fund
Brad Seligman
Mari Mayeda
1604 Solano Avenue
Berkeley, CA 94707
.'
Barry L. Goldstein
Saperstein, Goldstein, Demchak
& Baller
1300 Clay Street, 11th Floor
Oakland, CA 94612
Stephanie wald
Supervising Deputy Attorney General
State of California
455 Golden Gate Avenue
Suite 1100
San Francisco, CA 94102-3664
R. Lawrence Ashe
Nancy Rafuse
....
Paul, Hastings" Janofsky & Walker
600 Peachtree Street, NE
Suite 2400
Atlanta, GA 30308
"~
JBNNIFER LEVIN
Attorney
�
Dublin Core
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Andrew Rotherham - Education Series
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Domestic Policy Council
Andrew Rotherham
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1999-2000
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<a href="http://clinton.presidentiallibraries.us/items/show/36329">Collection Finding Aid</a>
<a href="http://catalog.archives.gov/id/612954">National Archives Catalog Description</a>
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2011-0103-S
Description
An account of the resource
The Education Series highlights topics relating to class size reduction, test preparation, the Elementary and Secondary Education Act, charter schools, the digital divide, distance learning, youth violence in schools, teacher salaries, social promotion, Hispanic education, standardized testing, and after-school programs. The records include reports, draft legislation, memoranda, correspondence to and from organizations and community leaders that focus on education issues, articles, publications, email, and fact sheets relating to the Administration’s progress on education.
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Clinton Presidential Records: White House Staff and Office Files
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Andrew Rotherham
Education Series
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Box 1
<a href="http://www.clintonlibrary.gov/assets/Documents/Finding-Aids/Systematic/2011-0103-S-edu.pdf">Collection Finding Aid</a>
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Clinton Presidential Records: White House Staff and Office Files
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