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THE ASSN. OF MEXICAN-AMERICAN EDUCATORS

August 25, 1993

The ASSOCIATION OF MEXICAN-AMERICAN EDUCATORS ("AMAE"); the CALIFORNIA ASSOCIATION FOR ASIAN-PACIFIC BILINGUAL EDUCATION ("CAFABE"); the OAKLAND ALLIANCE OF BLACK EDUCATORS ("OABE") on behalf of themselves, their members, and all others similarly situated; SARA MACNEIL BOYD; FLORENCE FLORES; SAM GENIS; VIRY KEM; TOUA YANG; ROBERT WILLIAMS; FRANK RIVERA; RICARDO PEINADO; MARTA LECLAIRE; ANTOINETTE WILLIAMS; DIANA KWAN; JAIME LANA; JOYCE SANTIAGO; MARIBEL DIAZ and AGNES HAYNES, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
The STATE OF CALIFORNIA and The CALIFORNIA COMMISSION ON TEACHER CREDENTIALING, Defendants.



The opinion of the court was delivered by: WILLIAM H. ORRICK

 Plaintiffs, three associations and fifteen individuals, brought this class action lawsuit, *fn1" challenging defendants' use of the California Basic Educational Skills Test ("CBEST") as a requirement for certification to teach in the California public schools. Cal. Educ. Code §§ 44252(b), 44830(b) (West Supp. 1993). Defendants are the State of California ("State") and the California Commission on Teacher Credentialing ("CTC"). Plaintiffs contend that the CBEST requirement violates Title VI of the Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 252 (codified as amended at 42 U.S.C. §§ 2000d -2000d-7 (West Supp. 1993)), and Title VII of the same Act, 78 Stat. 253 (codified as amended at 42 U.S.C. §§ 2000e-2000e-17). *fn2"

 Both sides have filed cross-motions for partial summary judgment with respect to the applicability of these two statutes to this case. For the reasons hereinafter stated, the Court grants plaintiffs' motion and denies defendants' motion.

 I.

 The relevant facts are not in dispute. A brief overview of the way that California's public schools receive their funds, the history of teacher credentialing in the State, and the development and implementation of the CBEST is in order.

 A. Public School Financing in California.

 The United States has long provided the State, through its Board of Education ("Board"), financial assistance for use in education; it is undisputed that the Board has received this federal financial assistance continuously since 1983. During that same time period, the California Department of Education ("DOE") has distributed most of that federal money to local school boards, which also have received financial assistance directly from the federal government. The federal assistance has been substantial: from 1983 through 1991, the federal government contributed more than $ 10 billion toward public education in California. The Board has passed on to the local school districts the bulk of the money received.

 From the 1983-84 fiscal year through the 1990-91 fiscal year, State aid to K-12 public education accounted for approximately sixty-six percent of the total amount spent on K-12 public education in California. During the same time period, the average annual total of State aid to K-12 public education was approximately $ 12.9 billion; the total annual amount spent on K-12 public education (including money received from local governments) averaged about $ 19.5 billion. Approximately sixty-five of the State's 1,056 school districts receive more money from local government than they receive from the State.

 Employee salaries and benefits account for the lion's share of the average school district's expenditures. More than eighty percent of the average district's expenditures go toward all employees' salaries and benefits; about fifty percent of the average district's expenditures go toward the payment of salaries for certificated personnel. *fn3"

 On January 1, 1964, the California Legislature created the Teachers Professional Standards Commission ("TPSC"), which was made up of thirteen members that the Board appointed, and whose chair was the California Superintendent of Public Instruction ("Superintendent"). The TPSC served in an advisory capacity to the Board, making recommendations on standards and policies for developing and maintaining a system of licensing certificated personnel for services in the State's public schools. Also on January 1, 1964, the State Legislature established a Committee of Credentials ("COC") within the DOE. The COC was made up of the Superintendent and his four appointees, and was responsible for granting, issuing, suspending, and revoking credentials and life diplomas. An applicant denied a credential could take an appeal to the Board, which had the authority to issue the credential or to deny the application.

 The statutory authority for the TPSC and the COC was repealed effective January 1, 1971. In its place, the Legislature created the Commission for Teacher Preparation and Licensing ("CTPL"). The CTPL's members included fifteen voting members, appointed by the Governor, and five ex officio, non-voting members, one of whom was the Superintendent (or his designee). The COC continued to exist, but was placed under the direct authority of the CTPL, which appointed the COC's members. The CTPL was authorized to develop the standards and procedures for certifying educational personnel. The ultimate authority for certifying personnel, however, remained in the Board, which had review and approval power over all the CTPL's rules, regulations, and determinations. The costs of the CTPL's activities were offset entirely by the fees levied for the issuance of credentials.

 On January 1, 1983, the CTPL's name was changed to the CTC. Effective January 1, 1989, the Legislature repealed the requirement that the Board review and approve the CTC's licensing rules, regulations, and determinations. In place of that mandate, the Legislature required the CTC, the Board, and the Superintendent to notify one another regarding any proposed policies and regulations. The notification requirement exists to ensure consistency in State policies concerning teacher preparation, curriculum, and instruction in California's public schools. Pursuant to the most recent legislative changes, the CTC's membership must include the Superintendent (or her or his designee) as a voting member. Cal. Educ. Code § 44210(a).

 Since January 1, 1980, the CTC (and its predecessor, the CTPL) have received no financial assistance from the federal government; indeed, during the entire history of the credentialing authority (whether the CTPL or CTC), that entity has received federal financial assistance for only one project: a teaching effectiveness research project, referred to as The Beginning Teacher Evaluation Study ("BTES"). The federal government stopped providing aid for the BTES in 1979. *fn4"

 C. The CBEST.

 Effective February 1, 1983, the State Legislature amended the Education Code to bar the CTPL from issuing any credential, permit, or certificate to any applicant unable to demonstrate basic reading, writing and mathematics skills in the English language, as measured by a basic skills proficiency test. Id. § 44252(b). A local school district may not "initially hire on a permanent, temporary, or substitute basis a certificated person seeking employment" unless that person has passed the basic skills proficiency test. Id. § 44830 (b). *fn5"

 The CTPL and the Office of Program Evaluation and Research ("OPER"), a division of the DOE, each released a request for proposals, inviting outside contractors to assist in the test's development. OPER selected and contracted with Educational Testing Services ("ETS") to assist with developing the test, conduct field tests, and perform a validity study. ETS began developing the CBEST in July 1982. The first CBEST was administered on December 18, 1982.

 In May 1993, after three test administrations, the CTC assumed full responsibility for revising and administering the CBEST. To date, the CTC has not changed the passing scores from those established at the time of the first CBEST administration.

 The CTC does not obtain certificated employees for local school districts or obtain jobs for certificated employees. Employees who wish to transfer from one school district to another must do so on their own. The CTC does not require its own staff members to pass the CBEST or to hold a credential.

 II.

 Cross-motions for partial summary judgment are before the Court with respect to two issues, namely, (1) whether Title VI applies in this case, and (2) whether Title VII applies in this case. After reviewing the standards that govern summary judgment motions, the Court considers the applicability of each statute in turn.

 A.

 Rule 56 of the Federal Rules of Civil Procedure provides that a court may grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

 The Supreme Court's 1986 "trilogy" of Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), requires that a party seeking summary judgment identify evidence that shows the absence of a genuine issue of material fact. Once the moving party has made this showing, the nonmoving party must "'designate specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (citations omitted).

 B.

 Plaintiffs' second cause of action charges violations of Title VI. They contend that the CBEST, as used and administered by defendants, has a disparate impact on racial minorities, thereby excluding them from participation in the market for certificated positions in public education. Plaintiffs also contend that the CBEST is not justified by any educational necessity, and that less discriminatory measures exist by which defendants can measure plaintiffs' skills in reading, writing, and mathematics.

 1.

 Title VI contains a broad prohibition on the use of federal dollars to subsidize racial discrimination:

 
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

 42 U.S.C. § 2000d (emphasis added). Congress passed Title VI "to accomplish two related, but nevertheless somewhat different, objectives. First, Congress wanted to avoid the use of federal resources to support discriminatory practices; second, it wanted to provide individual citizens effective protection against those practices." Cannon v. University of Chicago, 441 U.S. 677, 704, 60 L. Ed. 2d 560, 99 S. Ct. 1946 (1979) (discussing Title IX of the Education Amendments of 1972, Pub. L. No. 92-318, § 901(a), 86 Stat. 373 (codified as amended at 20 U.S.C. § 1681(a)), which, as the Court noted, 441 U.S. at 694) "was patterned after Title VI").

 In 1984, the Supreme Court, in a case involving Title IX, construed "program or activity" to mean only those entities that actually received federal funds. Grove City College v. Bell, 465 U.S. 555, 570-74, 79 L. Ed. 2d 516, 104 S. Ct. 1211 (1984). Three years later, Congress overturned Grove City by passing the Civil Rights Restoration Act of 1987 ("Restoration Act"), Pub. S. No. 100-259, 102 Stat. 28. The Restoration Act amended Title VI by adding an expansive definition of the term "program or activity." 42 U.S.C. § 2000d-4a. Defendants argue that the broad language of the Restoration Act notwithstanding, neither of them is covered by Title VI. Defendants contend that the State is exempt from liability under Title VI because the statute covers only the State's "programs or activities," not the State itself. With respect to the CTC, defendants argue that Title VI does not apply because the CTC receives no "federal financial assistance." The arguments with respect to each defendant are considered in turn.

 (a) The State.

 Defendants argue that the State is neither a "program" nor an "activity," because those terms plainly refer to subdivisions of state government. Plaintiffs concede that the State is not a "program or activity," as that term is defined in § 2000d-4a, but contend that it nevertheless is covered by Title VI because the State implements the discrimination caused by one of its "programs or activities," specifically the CTC. Plaintiffs point out that the Supreme Court has said liability under Title VI is coextensive with liability under the Equal Protection Clause of the Fourteenth Amendment. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 287, 57 L. Ed. 2d 750, 98 S. Ct. 2733 (1978) (opinion of Powell, J.); id. at 328 (opinion of Brennan, White, Marshall, and Blackmun, JJ.). States clearly are liable for Equal Protection violations, and plaintiffs claim it would be "anomalous" for states not to be liable under Title VI as well.

 Defendants correctly argue that plaintiffs' reliance on Bakke is misplaced, for that case says only that the type of discrimination outlawed by the Equal Protection Clause (discriminatory animus) is the same type of discrimination outlawed by Title VI. The issue here is not the type of discrimination Title VI prohibits (that issue is considered in Section 2, infra), but rather which entities may be liable for Title VI violations. The Equal Protection Clause and Title VI have some rather pronounced differences in terms of the entities that may be liable for violations of each. The Equal Protection Clause generally bars racial discrimination only by state actors; Title VI, in contrast, applies to private, as well as to public, entities. 42 U.S.C. § 2000d-4a(3). Bakke, therefore, is not on point.

 More compelling is plaintiffs' argument that language in Title VI itself permits their suit against the State. As part of the Rehabilitation Act Amendments of 1986, Pub. L No. 99-506, 100 Stat. 1845, Congress added the following provision to Title VI: "A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of . . . title VI of the Civil Rights Act of ...


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