Sue De La Cruz v. James Tormey

Carol R. Golubock, Daly City, Cal., for plaintiffs-appellants.

Thomas F. Casey, III, Deputy Dist. Atty., Redwood City, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before KILKENNY and WALLACE, Circuit Judges, and PALMIERI,* District Judge.

In this appeal we are called upon to determine whether a statutory and constitutional challenge to facially neutral but allegedly discriminatory official action may be resolved on the pleadings. The issues presented for review are narrow but significant, involving troublesome questions of legal interpretation and of the proper role of the federal judiciary in overseeing the decisions of local administrative bodies in the field of public education.

The plaintiffs are young women with low incomes burdened with the problems of child rearing, whose essential complaint is that the lack of campus child care facilities in the San Mateo Community College District (the District) has deprived them of an equal educational opportunity. They have brought this action on their own behalf and on behalf of others similarly situated under the Civil Rights Act of 1871, 42 U.S.C. § 1983. Jurisdiction exists under 28 U.S.C. § 1343(3) and (4).

The thrust of plaintiffs' action is that defendants the Board of Trustees and Chancellor of the District and the Presidents of the District's three colleges have followed a policy of opposing all efforts of students and community groups to establish child care facilities in the District, thereby denying and burdening plaintiffs' equal access to the District's educational opportunities. Plaintiffs allege that the impact of this policy falls overwhelmingly on women, and that the resultant absence of child care facilities effectively bars them from obtaining the benefits of higher education. In particular, it is asserted that defendants arbitrarily maintain a "policy and practice" of refusing to allow child care facilities on campuses, refusing to apply for or accept funds for the establishment or maintenance of child care centers, and refusing to allow District funds to be used for these purposes.

The complaint pleads four claims for relief. In their first claim plaintiffs state that the defendants have violated their federal right to be free from sex discrimination in educational programs receiving federal monies under Title IX of the Education Act Amendments of 1972, 20 U.S.C. § 1681, which provides, in part, as follows:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance.

Plaintiffs' second claim states that defendants' actions are violative of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution because they constitute intentional, invidious, gender-based discrimination and because they are arbitrary and unrelated to the legitimate goal of providing education.

In their prayer for relief, plaintiffs request, Inter alia, a declaratory judgment to the effect that defendants have acted illegally and unconstitutionally, and temporary and permanent injunctions restraining defendants from maintaining their allegedly discriminatory "anti-child-care" policy and requiring them to take affirmative steps with a view to the development of child care in the District, including the allowance of private centers on campuses, the acceptance of federal, state, and county funds for this purpose, and the use of its own funds to this end.

In response to a motion by defendants pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, the District Court dismissed the entire complaint on the ground that it failed to state any claim upon which relief could be granted. Plaintiffs appeal only from so much of the District Court's order as dismissed their first two claims for relief. Their third and fourth claims, involving matters of California law, stand finally dismissed and are not before us.

The standard to be applied in ruling on a motion to dismiss claims for legal insufficiency a motion viewed with disfavor in the federal courts, Rennie & Laughlin, Inc. v. Chrysler Corporation, 242 F.2d 208, 213 (9th Cir. 1957) is well established. In the words of the test most often applied:

In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957) (footnote omitted).

The issue is not whether a plaintiff's success on the merits is likely but rather whether the claimant is entitled to proceed beyond the threshold in attempting to establish his claims. Moreover, in passing on a motion to dismiss, the allegations of the complaint should be construed favorably to the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). See 5 Wright & Miller, Federal Practice and Procedure: Civil § 1355.

Our task, then, is clearly defined. We must determine whether or not it appears to a certainty under existing law that no relief can be granted under any set of facts that might be proved in support of plaintiffs' claims.

The satisfactory characterization of the allegedly unlawful governmental action sought to be remedied by the present suit poses a legal problem of some novelty and no little magnitude, one whose solution requires a closer scrutiny of the precise claims made. We begin, then, with a more thorough review of the specific conduct challenged by the plaintiffs.

After chronicling the apparently severe shortage of child care facilities for low-income families in San Mateo County, the complaint states, and we quote at some length:

In order to document the great need for child care for presentation to the Board of Trustees, in the Fall of 1973, the Associated Students of the College of San Mateo, (ASCSM) conducted a survey of over 3500 students as to their needs for child care. The ASCSM also began a co-operative effort with members of the District Planning Staff to conduct a feasibility study for child care on campus. Pursuant to these efforts, defendants were persuaded to hire a child care consultant, Sue Brock, to do a study for a District-wide approach to solving the child care problem.

In August, 1974, the ASCSM presented to defendants, Board of Trustees, the results of their survey showing an overwhelming need for child care, and the report of the child care consultant which further documented the overwhelming need and recommended a five-step program to deal with the child care problem including application for state and federal funding. With support from representatives of various community groups . . . ASCSM recommended that space be designated immediately on campus for the use of students who had organized to care co-operatively for their youngsters while a comprehensive program of child care was being developed.The defendant Board of Trustees refused to take any action.

In September, 1973, the District Advisory Committee for Early Childhood Education, a committee composed of faculty and students of the Early Childhood Education Department and of representatives of the community and community public service agencies, issued a report recommending the development of a child care facility to provide care for children of students and to provide additional laboratory (Sic ) for Early Childhood Education students. Defendants refused to act on this recommendation and have repeatedly refused to do so each year since 1973.

In February, 1975, a faculty member at Canada College, with support from women students, applied for a grant from San Mateo County under Title I of the Comprehensive Employment and Training Act ((29) U.S.C. §§ 801 et seq.) to pay staff to manage a child care center. The application had been encouraged by the staff of a local Manpower agency as the County Manpower Planning Council had allocated $78,000.00 for child care in the area where Canada College was located. The application received preliminary approval from the Manpower staff for the full $78,000.00. However, approval by defendants was necessary before final approval. Defendants refused to accept these monies.

In the Summer of 1975, a group of mothers who were students at Canada College and had organized a child (care) co-operative were given permission to use space in a church on a temporary basis, rent free. The group appealed to defendants for any support the District could possibly give. They were denied support of any form.

In September, 1975, defendants refused a group of women students at the College of San Mateo who had formed a child care co-op permission to use a vacant room or any other space at the College. In October, 1975, a group of women students at Skyline College approached the local elementary school district and were offered space for a child care center if the District would co-operate in the establishment of such a center. The District did not respond to the offer.

In December, 1975, the two groups of women students who had formed child care co-operatives applied to the State Board of Education for funds appropriated under the Campus Child Development Act (Stats.1975, Ch. 1012, p. 2654 (2391)) to fund child care centers in off-campus locations. These applications were approved by the State subject to acceptance by the District. On January 14, 1976, the Board voted to refuse the funds, again thwarting attempts to establish child care centers. The District would not have been required to spend any of its own funds, nor to donate any of its own facilities as private sources could have provided the required matching funds and locations for the centers.

Initially, it is difficult to conceive how this course of events, which would seem to reflect little more than a series of political defeats in an area traditionally reserved to the sound policy-making discretion of administrative and legislative bodies, can form the predicate for a legal challenge. However, upon closer inspection it appears that the plaintiffs have amply stated a claim of discrimination entitling them to an opportunity to make good on their allegations. A review of the governing authorities makes clear that this is so.

There are two fundamentally different ways in which governmental action can run afoul of the Equal Protection Clause of the Fourteenth Amendment or statutes prohibiting invidious discrimination. The first occurs when the Government explicitly classifies or distinguishes among persons by reference to criteria such as race, sex, religion, or ancestry which have been determined improper bases for differentiation. Such governmental action is often termed "facially" discriminatory.1 Not all such discriminations, of course, are unlawful, but only those which cannot sufficiently be accounted necessary to the accomplishment of legitimate objectives.

A second and more subtle variety of discrimination focuses, not on the form of the governmental action, as does the first, but rather upon its results. As with facial discriminations, decisions or actions which, while in form nondiscriminatory, produce effects which weigh adversely and disproportionately upon the members of a particular protected group of individuals, may require explanation in terms of non-invidious purposes.

Here there can be no claim of discrimination of the first sort. The decisions and actions of the District which plaintiffs seek to subject to judicial scrutiny are not restricted in their application to the members of one sex or the other; on-campus child care facilities are equally unavailable to both men and women, and to those both with and without child-rearing responsibilities. No classification by sex or employment of gender-related criteria appears.2 This fact has the consequence of rendering largely inapplicable the growing body of cases dealing with explicit gender-based discrimination,3 and compelling us to navigate somewhat at the margin of existing equal protection doctrine.

The decisions of the United States Supreme Court in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), and Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), establish that litigants proceeding on the second theory of discrimination outlined above are required to prove two essential elements before they can be entitled to relief under the Fourteenth Amendment: discriminatory effect and invidious discriminatory intent or purpose.4 While proof of the latter element may not be necessary in the context of certain statutes prohibiting discrimination, see note 16 Infra, a sufficient demonstration of the former, discriminatory effect, is equally required there. Leaving the nature and necessity of proof of intent or purpose to the following sections, we devote the remainder of our present discussion to an explication of the concept of discriminatory effect and our conclusion that one has been pleaded by the plaintiffs here. To do so will require a review of a number of recent decisions in which that concept has been employed and from which, accordingly, we will need to draw in the further course of our discussion.

In Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), a unanimous Court construed Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, to proscribe "not only overt discrimination but also practices that are fair in form, but discriminatory in operation." Id. at 431, 91 S.Ct. at 853. In language which has since become famous, Congress was held to have required "the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers Operate invidiously to discriminate on the basis of racial or other impermissible classification." Id. (emphasis added). The result serving to establish a claim of discrimination in that case was the disqualification of a markedly disproportionate number of blacks from employment or job transfer flowing from the respondent's requirements of a high school diploma and passage of standardized intelligence tests. Because these requirements were not shown to have been related to successful job performance or otherwise to have fulfilled a legitimate business need, Id. at 431-32, 91 S.Ct. at 854, their use was held to be violative of the Act.

Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974), involved a claim of discrimination under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. Non-English-speaking students of Chinese ancestry argued that the failure of San Francisco's public schools to provide them with supplemental courses in the English language or some other means of overcoming their linguistic deficiency denied them an equal educational opportunity. A majority of the Justices of the Supreme Court agreed, holding that discrimination which had the effect of depriving the petitioners of an equal educational opportunity was barred, "even though no purposeful design is present." Id. at 568, 94 S.Ct. at 789.

Washington v. Davis, supra, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597, and Arlington Heights v. Metropolitan Housing Development Corp., supra, 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450, both represent instances in which a "discriminatory effect" challenge under the Fourteenth Amendment was unsuccessful because of the failure of the challengers to establish the existence of a discriminatory purpose. They are of interest in the present context, however, because of the additional light they shed on the nature of the other element necessary to be proved in a legal attack upon facially neutral official action discriminatory effect itself.

The effect challenged in Davis was the highly disproportionate exclusion of black applicants from employment with the District of Columbia police department caused by that department's use of a qualifying test. In Arlington Heights it was the denial of housing and allegedly resulting employment opportunities to a large group of poor and minority persons through a municipality's refusal to re-zone certain land sought to be used for low- and moderate-income housing. While holding that a racially disproportionate impact is not the "sole touchstone" of an invidious discrimination and alone is insufficient to establish a violation of the Constitution, 426 U.S. at 242, 96 S.Ct. 2040; 429 U.S. at 264-65, 97 S.Ct. 555, the Court in both cases clearly intimated that such an impact, when coupled with proof of invidious intent, would establish such a violation. It is instructive to note that the Court in Davis used the terms "discriminatory impact" and "disproportionate impact" interchangeably, 426 U.S. at 242, 96 S.Ct. 2040, and that throughout both opinions the preferred term for the "effect" element seems to be the latter.

In Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977), this "discriminatory effect" analysis was employed in the context of a claim of gender-based discrimination. There, the Court affirmed a finding of the district court that a prima facie case of unlawful sex discrimination was established by a showing that certain facially neutral height and weight employment standards had a disproportionate impact upon women applicants. Citing Griggs, supra, and Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), the Court observed:

Those cases make clear that to establish a prima facie case of discrimination, a plaintiff need only show that the facially neutral standards in question select applicants for hire in a significantly discriminatory pattern.

433 U.S. at 329, 97 S.Ct. at 2726.

These cases, and many more which could be cited, demonstrate that the term "discriminatory effect" and its paraphrases simply serve to capture the sort of differential, disparate, or disproportionate consequences which facially nondiscriminatory laws, decisions, or other actions may have upon the members of a particular protected minority. As such, they operate only to signal the Beginning of analysis an analysis which must ultimately answer the question whether the effected discrimination is invidious and thus unlawful. Nowhere has the Court intimated that these terms are to be assigned any special or technical meaning, or that they play any substantially independent role in the analysis. While the procedural and substantive significance of an allegation or finding of discriminatory effect will, of course, depend upon the legal and factual environment in which it is made, the concept itself is relatively elementary, straightforward, and capable of application in a wide variety of factual contexts.

The application of these principles to the present suit does not pose any insuperable problem. Remaining, as we must, on the level of allegation, it is clear that at least some child care centers in addition to those already in existence would have been established had the defendants not acted or refused to act as they did. The alleged effect of this consequence upon the plaintiffs and the class they claim to represent is stated in the following excerpts from the complaint:

The plaintiffs in this action include mothers who would attend a community college in San Mateo County but who cannot attend a community college solely because of the lack of child care facilities. Other plaintiffs in this action are able to attend community college but only through the use of makeshift and temporary child care arrangements. All of the plaintiffs in this case are being denied an opportunity for education or are threatened with a denial of educational opportunity solely on account of the lack of child care facilities in the San Mateo Community College District. Since the plaintiffs cannot find employment without more education, the denial of child care facilities forces the plaintiffs into low paying jobs or onto welfare.

Plaintiffs and the class they represent are thus being deprived of their right of access to educational opportunities on the basis of sex in that the lack of child care facilities is a burden which falls almost exclusively on women and prevents women from participating in and denies them the benefits of educational programs in the District.

As a result of defendants' policy and practices, educational opportunities are not made available or are made available on an unequal basis to substantial numbers of women. . . . (T)he direct effect of their actions is to exclude or burden substantial numbers of women.

There can be little doubt that a discriminatory effect, as that term is properly understood and has been used by the Supreme Court, has been adequately alleged. The concrete human consequences flowing from the lack of sufficient child care facilities, very practical impediments to beneficial participation in the District's educational programs, are asserted to fall overwhelmingly upon women students and would-be students. The abstract character of this effect is legally indistinguishable from that characterized as disproportionate impact or discriminatory effect in Lau5 and Arlington Heights. Additionally, it cannot be said from the pleadings that plaintiffs will be unable to establish the degree of statistical imbalance which sufficed to trigger further inquiry in such cases as Griggs, Davis, and Dothard. If an unsurmounted obstacle to the successful statement of a claim of discrimination is to be identified, it must be found elsewhere.

It remains to consider a number of other preliminary objections which may be advanced to the actionability of the alleged facts. Initially, it may be questioned how the defendants' inaction or refusal to act can form the basis for a claim of discrimination. It may even be said that no "act" of discrimination has been alleged at all. The answer to this objection is that the form of the challenged conduct is of little relevance to suits proceeding upon a theory of discriminatory effect. By their decisions in the child care area defendants have surely "acted." The fact that this action assumed a negative character can no more be a bar to the present suit than it was in Arlington Heights or Lau.

In a more persuasive refinement of this objection, however, our dissenting brother argues, on the strength of Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974), General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 30 L.Ed.2d 34 (1976), and Nashville Gas Co. v. Satty, 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356 (1977), that no discriminatory effect may be shown where one simply "declines to extend an additional benefit of disproportionate value to certain members" of a particular group of people, so long as existing benefits are made available in a neutral fashion. Post at p. 69. From Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971), he would draw a correlative principle, Viz., that the effect or impact upon the would-be beneficiaries of a particular social or economic program which a government body decides not to initiate or support is excluded from the definition of discriminatory effect. Post at p. 70-71. For the reasons set forth in the margin, we conclude that Geduldig, Gilbert, and Satty,6 on the one hand, and Palmer,7 on the other, when fairly read, do not countenance such firm conclusions and that the reliance of the dissent upon these decisions is misplaced. One reason is that each of these cases was decided on a relatively full evidentiary record and not, as here, upon a construction of the pleadings. An eagerness to find in these decisions the seeds of a solution to the present case should be dampened, however, by one more fundamental observation.

The benefits not granted or programs not offered in each of the above cases were not alleged to have been essential or even related to the enjoyment of benefits already conferred or programs already in existence. That no public swimming pools were maintained by the city in Palmer did not prevent blacks and other citizens from taking full advantage of other, integrated public facilities. Similarly, the decision of employers in Geduldig, Gilbert and Satty to exclude disabilities resulting from pregnancy from the risks covered by their insurance plans did not impair the value of the included coverages. Here, by contrast, the essence of plaintiffs' grievance is that the absence of child care facilities renders the Included benefits less valuable and less available to women; in other words, that the effect of the District's child care policy is to render the entire "package" of its educational programs of lesser worth to women than to men. Thus, there is some doubt that the situation which they challenge may be fitted nicely into the rubric of "underinclusiveness." Were the object of their challenge simply a refusal to initiate or support a program or course of particular interest and value to women women's studies, for instance the case might be a much easier one. Where, however, a refusal to confer additional benefits is alleged, on account of the peculiar nature of those benefits, to impair the value of Existing programs to members of a particular group, the principles sought to be derived from Gilbert et al. do not support the conclusion that this allegation may be deemed meritless prior to any consideration of its evidentiary basis.

A second and related objection would attribute the complained-of effects to a "totally external and independent social condition," one which in no way can be the responsibility of defendants to remedy. This, of course, has a large element of truth, but it mistakes the nature of the claim being made. Plaintiffs do not charge the District with an affirmative obligation to remedy conditions not of their making. Rather, they demand that its decisions, particularly those weighing adversely upon large numbers of women, be made in furtherance of constitutionally permissible objectives and purposes. While both Arlington Heights and Lau involved situations not fairly attributable to the alleged discriminators, this circumstance did not serve to undermine the actionability of the complaints in those cases.8

Lastly, one may point to the fact that the effects of the challenged " policy" do not fall exclusively upon women, as did those in Gilbert or Geduldig, but affect as well men with child-rearing responsibilities. This, however, is in the very nature of the theory upon which plaintiffs have proceeded. Challenges which rely upon disparate impact inevitably will involve consequences which are not restricted in their operation to one group or another. The essence of this sort of legal attack is imbalance and disproportionality. The lack of pure gender-specificity is no bar here, as it was no bar to a finding of discriminatory effect in Dothard, supra.

A final test will confirm the soundness of the reasoning to this point. Let us assume, for the moment, that the plaintiffs are able to prove, pursuant to the principles reviewed in the following section, that the proximate motivation for the District's refusal to initiate or support the development of child care facilities has been an invidious, sex-discriminatory purpose; for example, to pick an extreme case, a desire to disadvantage women students so as to prevent their increase in the student population, arising, perhaps, from a conviction that higher education for women is superfluous and unimportant. Let us assume further that were it not for such a purpose, child care facilities would long ago have been developed in the District, either pursuant to outside funding or through cooperation with community organizations. Upon this assumption extravagant, perhaps, but one which cannot be ruled out without this Court allowing itself to be cast Sub silentio into the role of a finder of fact would the plaintiffs' case fail simply because the effects of the District's decision, albeit falling disproportionately upon the persons intended to be disadvantaged, could not be brought within the confines of the concept of discriminatory effect? To state the question is almost to answer it, and to answer it in the negative. For if actions of this nature were subject to dismissal on this ground, the Government would be given a wide range of areas in which to pursue and accomplish patently unconstitutional and illegal ends, unimpeded by any possibility of judicial review. Were this so, there would have been no reason for the Supreme Court in Arlington Heights to have articulated the necessity for proof of invidious intent; such proof would have been a futile gesture, the character and effects there of the challenged governmental action being equally outside of a narrowly drawn concept of discriminatory effect. On the contrary, any fair reading of Arlington Heights compels the conclusion that, had the requisite discriminatory intent been shown, the challenged decision would have been invalidated. This is likewise so, we believe, in this case.

As already noted, the decisions in Washington v. Davis, supra, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597, and Arlington Heights v. Metropolitan Housing Development Corp., supra, 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450, make it clear that official action, neutral on its face, will not be held violative of the Equal Protection Clause simply because it results in a racially disproportionate impact. A fortiori, the allegation of a sexually disproportionate impact here, standing alone, is insufficient to state a violation of the Constitution. Had plaintiffs restricted themselves to an allegation of disparate impact, therefore, the dismissal of their equal protection claim would have been proper.

The complaint, however, cannot fairly be viewed as so limited. In addition to asserting the unequal effect of defendants' actions, plaintiffs have alleged a course of conduct by defendants susceptible of an inference of intentional discrimination:

Knowing that their actions resulted in women being denied access to education, defendants intentionally continued a policy and practice of thwarting all attempts to provide child care to plaintiffs and the class they represent.

Defendants have a policy and practice of refusing to recognize the need for and provide child care services for students and of opposing all attempts to establish such services.

Defendants' actions in denying women equal educational opportunities are arbitrary and completely unrelated to the goal of providing education. Defendants have acted knowing that the direct effect of their actions is to exclude or burden substantial numbers of women.

By their child care policy, defendants are denying women equal access to education and are invidiously discriminating against plaintiffs and the class they represent on the basis of sex in violation of their rights to equal protection of the law.

The Supreme Court has noted that "an invidious discriminatory purpose may often be inferred from the totality of the relevant facts." Davis, supra, 426 U.S. at 242, 96 S.Ct. at 2048. The primacy or exclusiveness of an invidious purpose need not be proved