Kinney Kinmon Lau, a Minor by and Through Mrs. Kam Wai Lau, His Guardian Ad Litem v. Alan H. Nichols, President

Before TRASK, CHAMBERS and Cir cuit Judges, HILL,** Judge. District TRASK, Judge: Circuit appeal This from the district disposition court’s adverse aof civil rights by appellants class action filed compel the San Francisco Unified School non-English- District speaking attending Chinese students bilingual District compen- schools with satory education in the lan- guage. defendants-appellees superintendent and members Board of Education of the Dis- trict, and members of the Board of Supervisors City County San Francisco. non-English-speaking Two classes of pupils represented Chinese in this class, composed action. first 1,790 2,856 Chinese-speaking stu- dents admittedly District who special need English, help ceive no such at all. The second 1,066 Chinese-speaking class of students compensatory education, receive 633 on ** Irving Hill, Judge California, Honorable States District for the United Central District of sitting designation. basis, (one per day) part-time hour and English non-English-speaking for all (six per day) on a full-time hours students. more Little than one-third basis. jurisdiction The district court had providing this teachers involved in (federal pursuant to 28 U.S.C. §§ fluent in both instruction are rights). (civil question), This and 1343 Chinese, both jurisdiction court’s under 28 U.S. arises Language English-as-a-Second and 1291, as the court’s order C. district § Sep- As of (ESL) methods are used. finding appellees for on the merits was approximately there were tember a final order.3 attending 100,000 District students stated, As hereinbefore the dis 16,574 schools, Chinese.1 of which were relief, appellants court trict denied appellees complaint Appellants’ seven and found for on the merits. states action, alleging expressed sympa violations of well-founded causes Constitution, repre plight thy the Cali- of the students States for the United Constitution,2 action, that 601 of in concluded this but fornia Section sented rights equal Rights to Act of 42 U.S.C. to an education and their § Civil 2000d, provisions opportunities satis the California had been and educational Essentially, appellants ed fied, “the same in that received Education Code. abridged appellees the same on that ucation made available contend rights to other tens to an education and bilin- and conditions to the their gual terms disregarded Fran education, in the San and of students thousands opportunity .” -rights . . equal District . to educational School Unified cisco Appellees rectify appel English- among duty themselves no to and with had long deficiencies, speaking They pray special de- students. lants’ they provided claratory judgment preliminary access and these students system injunctive permanent mandat- made relief educational the same to compensatory in to all other students.4 education available stipulated: 16,091 parties September, 1. The Chinese students — present 2,856 “1. There are —at — Chinese-speaking 16,574 September, in the San students Chinese students — 1969.” Francisco Unified District School who provided by These statistics special were English. need in instruction parties in district court the first half of 1970. We have been no Chinese-speaking 2,856 a. Of longer to think reason that ade- special help English, who need students quately reflect the relative dimensions of 1,066 help receive some .... problem faces the School District provide quality attempting education 1,066 Chinese-speaking b. Of for all its students. receiving help, receive such students help part-time and 433 on basis right claimed 2. The . (Due Process), full-time basis. Ninth the Fifth under there were “2. In November of (Reserved Powers), Fourteenth 2,455 Chinese-speaking in the San Clause) students (Equal Amendments Protection who States; District Francisco Unified School of the United the Constitution special IX, needed 5 of the Article under Section 2,455 Chinese-speaking .... Of these California State of Constitution needing special help, schools.) received system students (Provision common help .... p. 3. . C.T. at 420. Order reports According annual “3. challenge employment Appellees Relations San the Human Division District, Although the fol- School this case. Francisco Unified class action represents explicitly lowing this number of Chinese did not rule on district court appellees’ issue, Unified Francisco denial of motion students its years dismiss, im- merits 1966-1969: and decision on the District October, plicitly 15,642 the class action determined that Chinese students — October, agree. 15,559 proper. We Fed.R.Civ.P. students — duty him affirmative appealing In case, appellants disabilities, to overcome his argue5 assistance that the district court miscon- origin disabilities of those whatever meaning strued the the mandate may be. Education, Brown v. Board of 483, 493, 98 L.Ed. 873 education, the state “where reading Appellants’ of Brown provide it, right has undertaken to is a extreme, cannot ac one which we which must be made available all on There, legally cept. the Court held Brown, appellants terms.” In con- sys dual school constituted enforced tinue, “equal seg- terms” meant without as a tems were unconstitutional denial regation imposed law, because even equal protection; state-main though equality,” there was “surface equal” “separate tained but inferiority “caused ... sense Fergu facilities, by Plessy sanctioned minority affected son, L. ability and motivation to learn and longer (1886), Ed. al 256 were their educational to retard tended Brown concerned affirmative lowed. Appellants growth.” Brief for against per mental discriminating state action at 21. v. sons because of their race. Swann case, applied of 5, to the facts 1, Education, 91 S. Board of reason, appellants mandates con- Brown It 1267, 554 Ct. 28 L.Ed.2d responses to student’s of the sideration of denial admission of struck down by teaching provided school his by attended to schools black children determining afford- he has been whether requiring laws children under white opportunity. Even equal according ed segregation permitting though the same is Education, the student 347 Brown v. Board race. as other school 686, course of 488, L.Ed. 873. 98 74 S.Ct. U.S. at children, he is denied Fourteenth of the It followed the dictate he cannot “equal them if terms” with Amendment, shall State “[n]o of instruction any person deny understand great therefore, as is, to take protection unable laws.” U.S. advantage other stu- (emphasis sup classes as XIV, of his 1 Const. Amend. § appellants, According Brown, Brown Therefore, cases dents. plied). under “equal” op- facto, requires de jure, schools as with of de contrasted all, equality is to be portunities the constitutional violate discrimination only by the school what followed measured cases have Other command.6 by potential Chase, rationale, Gomperts child, but v. offers the same brings If school. 1192, (N.D.Cal.1971), F.Supp. the child which 1195 329 disadvantaged filing injunction pending application student for denied, spect classmates, has an the school to his petition of certiorari for writ by 5. The amicus curiae briefs filed person shall, “No in the United States United States and the Center Law and ground race, color, on the or national Education, University (Center) Harvard origin, participation be excluded from support appellants, which been in, of, be denied the or be benefits sub- great assistance to this court reach- jected pro- to discrimination under basically decision, its raise same activity receiving gram or Federal arguments appellants. financial assistance.” beneficiary party Relying requires the third noted It that Section 601 Board, person of Lemon v. 240 rationale School affirmative action F.Supp. 709, (W.D.La.1965), aff’d, participation, 713 “excluded” “denied” (5th Cir.), denied, “subjected” benefits, cert. E.2d 847 388 370 to dis- 2116, 911, L.Ed.2d 1350 18 U.S. crimination. ap appellants charge also merits of Our determination pellees appellants 601 of the have violated Section other claims of will likewise dis- Rights 1964, pose Act of 42 U.S.C. § Civil made claims under Civil Rights 2000d: Act.

795 235, aff’d, F.Supp. mented 30 330 447 F. 16, L.Ed.2d 1237, 30 Education, (5th 1971), application 2d 441 Cir. Board v. (1971); Swann see stay Edgar denied sub nom. United 18, 91 S.Ct. v. pra, 15— su States, 100, 1206, 105 404 Guinn, 8, 92 F.2d 30 Kelly 456 U.S. S.Ct. L.Ed. v. (1971) denied, 1016, Dis 2d Keyes 10 cert. 404 1972); U.S. v. School (9th Cir. 675, (1972); (10th Cir. 999 663 F.2d 445 trict No. Spangler 92 v. Educa granted, 404 U.S. Pasadena Board of 1971), cert. (1972); tion, F.Supp. (C.D.Cal.1970). Davis 311 728 501 L.Ed.2d 30 S.Ct. 573, 575 District, F.2d 443 jure parameters segregation de 913, 92 denied, 404 U.S. Cir.), (6th cert. being explored by are still the courts.8 (1971); Deal 186 L.Ed.2d 30 neighborhood system If the is ma- Education, F.2d Board nipulated by the school board in such a denied, 402 1969), cert. (6th Cir. way encourage create, toas foster ra- 962, 91 S.Ct. imbalance, cial courts have determined (6th Cir. and 369 , constitutional violation has oc- 847, 88 S. denied, 389 U.S. 1966), cert. Gomperts supra. g., Chase, curred. E. (1967); Johnson L.Ed.2d 114 Ct. jure segrega- The courts have found de (N. F.Supp. District, v. School tion where the school district has re- pend stay D.Cal.1971), application existing drawn boundaries schools so Heung Guey nom. sub ing appeal denied imbalance, increase racial de- Johnson, Lee taching homogeneous compact, racially (1971); Spencer v. neighborhoods from attendance zones Kugler, 1239, F.Supp. 1235, 326 1241- populated predominantly by for schools (D.N.J.1971), mem., another, 1242 aff’d See, g., of e. members race. 707, 1027, 92 30 L.Ed.2d' 723 S.Ct. Keyes supra 1, v. School District No. at District, (1972) ; School Cisneros v. 324 1000-1001; 445 F.2d Davis School v. 599, (S.D.Tex.1970), F.Supp. 616-20 District, supra 574; at 443 F.2d John- by F.Supp. 1377, ap supplemented 330 District, supra son v. School 339 F. at plication stay of reinstatement 1336-1337; Supp. 1318, United States v. 1211, granted, 9, 404 92 30 L. U.S. Texas, supra F.Supp. 1049-1050; at 321 (1971), part, Ed.2d aff'd in modified 15 District, supra Cisneros v. at 324 School (5th remanded, part in 467 F.2d 142 ;9 F.Supp. Spangler 617-618 Board v. Texas, 1972); United 321 Cir. States v. Education, supra F.Supp. at 311 (E.D.Tex.1970), supple- F.Supp. 1043 507-510. argument appeals opinion 7. has Oral Court affirmed without from the judgment judgment case, district court’s in of the United States District this 71-1877-78, 71-2105, Jersey 71-2163, Nos. Court the District of New 71- holdr 2189, panel drawing was heard a before school of this district January 14, racially Subsequently, boundaries which results identi 1972. Judge Madden, demographic pat fiable who was a schools member panel died, Judge per Browning terns within the district is not se by replace By Spencer drawn lot to Kugler, him. unconstitutional. order v. 326 1, 1972, panel F.Supp. (D.N.J.1971), March mem., vacated sub 1235 aff’d case, reargu 1027, 707, mission of the set for 404 30 L.Ed. Supreme disposi (1972). after ment Court’s 2d 15 Keyes v. School District No. District, F.Supp. 9. Cisneros v. School 324 (10th 1971), 445 F.2d 990 Cir. cert. (S.D.Tex.1970), supplemented 604-08 granted, 30 by 1377, application F.Supp. 330 for re- L.Ed.2d 728 stay granted, instatement 1211, term, Supreme Next will hear (1971), L.Ed 30 .2d 15 Keyes v. School part, District No. F.2d part 445 aff’d modified and re- (10th 1971), granted, Cir. cert. manded, (5th 1972), 467 F.2d 142 in- Cir. against L.Ed.2d 728 volves discrimination Mexican- readily which i£ Americans, raises the issue and when identifiable ethnic- imposition neighborhood minority group the courts found were system upon racially segregated protected by residential Protection Clause. patterns violates the Constitution. supra Guinn, F.2d 106- segrega Kelly at v. jure de indicium Another supra District, 107; v. School Johnson sites of construction the selection tion is 1318; v. F.Supp. School Cisneros at 339 of attendance establishment 619-620; F.Supp. District, supra at 324 If schools. of new boundaries supra Education, Spangler v. Board ra way to increase in such done marking F.Supp. by schools, at cial imbalance residen racial operates coincide grouping, zones when Intra-class con detected by patterns, courts and without separate tial race students Kelly g., See, v. e. ability, violation. considered stitutional has been reference 105-107; F.2d supra at 456 Guinn, See, g., Span- constitutionally infirm. e. 1, supra at District No. Keyes supra Education, School v. at 311 gler Board of Dis 1000; v. School Davis F.2d F.Supp. 519-520.10 575; Johnson supra F.2d trict, at 443 agency’s to consol failure And a F.Supp. supra District, at solely because districts School idate small school District, predominantly one 1337; populated v. School each is Cisneros thought Spangler to con 617-619; race was and a different F.Supp. supra at 324 travene the F. constitutional mandate. See Education, supra v. Board supra Texas, United States v. F. Supp. 517-518. Supp. 1047-1048. Similarly, and addi- if mobile units over- used to accommodate tions are alleged Appellants have neither crowding racially schools identifiable discriminatory nor shown ac reassignment of students when evidence, appellees. tions populated predominantly schools uniformly used and has been fea- race would be scholastics another as the dis of instruction segregation per- sible, jure has been de schools, requi trict does evince the Keyes See, g., Dis- e. v. School ceived. site discrimination maintenance supra trict No. at 443 proper policy.11 of this otherwise supra District, at 339 Johnson School appellants Neither can invoke 1318-1319; F.Supp. Cisneros v. teachings County of cases like Gaston 618-619; supra F.Supp. District, at 324 States, 285, United Education, supra Spangler v. Board 1720, ; v. Griffin F.Supp. at 311 518-519. 218, Board, School 377 U.S. If district allows students the school (1964); v. 12 256 Lane solely mi- to move from to transfers use Wilson, 59 83 S.Ct. majority schools, nority courts have to (1939); L.Ed. 1281 v. United Guinn discerned a violation of Constitution. States, 238 L. 59 Texas, supra See, g., v. States e. United (1915); v. Ed. 1340 United States 1049; F.Supp. Cisneros School at v. 1965); 321 Logue, (5th 344 F.2d 290 Cir. supra F.Supp. District, at 324 Fair, (5th Meredith v. 298 F.2d 696 Cir. supra Education, at Spangler Board of v. 1962); Parker, and Franklin F. 223 v. F.Supp. 311 520-521. Supp. (M.D.Ala.1963), 724 modi aff’d as (5th part, fied other F.2d 331 841 Cir. been have likewise School boards 1964). cases, facially In charged segrega- neutral practicing jure de policies assign not faculty were held unconstitutional they if hire and simply they creating race, thereby the burdens created ra- basis heavily Blacks, g., upon See, fell most but be- cially e. schools. identifiable compel power the state to Separate 11. “The lingually 10. instruction de to make school and at some attendance pupils ficient can violate the Pro schools, regulations in- for all reasonable Sheely, Clause. See Gonzales tection v. give cluding requirement shall that F.Supp. (D.Ariz.1951) ; 96 1004 Mendez questioned.” English, not instructions F.Supp. (S.D. District, v. School 64 544 390, 402, Meyer Nebraska, Cal.1946), grounds, aff’d on other (1923). L.Ed. 1042 (9th 1947). Cir. perpetuated the actions cause states’ to uni- and create a L.Ed.2d 716 jure segregation. past ill system effects of de tary ‘with [Mexican] just schools but schools and no white Although in brief its amicus curiae ” supra Texas, United schools.’ States Education, Har- the Center for Law (E.D.Tex.1971); F.Supp. ac- at 342 University, appellants portrays vard cord, F.Supp. have we at mi- racial “members of an identifiable discussed, supra, such rationale nority historically dis- which has been bilingual compensatory quiring instruc- against by criminated action in applicable facts not under the tion is .,” . Brief at area of . education of this case. 28,12 alleged appellants no such segregation. impor- past jure de More , In that case the heavily court relied showing appel- tantly, that is no there upon study by Dr. Cardenas conclud- lingual all re- lants’ deficiencies are inability that of the Mexican- past any such discrimination. lated American students to benefit from the argu- therefore, rejects court, This system from, educational resulted charac- appellees ment that duty have an affirmative teristics called incompatibili- “cultural language English language ties” and deficiencies. appellants’ handicaps, compensate for ethnically-linked These traits —“albeit carry-overs from because state-imposed pov- combined with other factors such as segregation. Swann See erty, malnutrition and the effects Education, Board past deprivation” combine L.Ed.2d 728 identify group and have “elicited remnants, ap- there If many school boards” the different language primary pellants’ discriminatory often treatment. one them. has been shown comprehensive The court’s edu- remedial reasoning in mind It is with this plan programs cation included mandated consider, distinguish, United we develop secondary in a skills (E.D. Texas, F.Supp. 24 States Tex.1971), language “(English many Mexi- brought which was a case students, Spanish can-Ameriean An- Brief our attention Center glo students)” so that “neither heavily 35-37, relied Spanish presented nor as a more val- argument. during To be appellants oral language.” Texas, ued United States v. sure, mandated order supra F.Supp. at 342 for Mexican-Ameri Anglo-American Every brings can and students student starting Inde Felipe-Del line Rio of his educational career Consolidated However, disadvantages advantages pendent District. different social, part by court’s order the caused economic and for that was basis prior determination, F.Supp. background, 1043 321 cultural created contin F.Supp. by completely (1970), apart supplemented from contribu 330 ued ap Cir.), system. aff’d, (5th by 235, of 441 the school That some 447 may stay impediments nom. plication be which can be denied sub 1206, States, to “denial” Edgar does amount a opportuni 404 U.S. overcome not v. United (1971), cert. 8, the Board of L.Ed.2d 10 educational 92 30 S.Ct. 675, meaning 1016, denied, of Four the the 92 ties within U.S. S.Ct. 404 fail the Board had teenth Amendment should there L.Ed.2d 30 663 attention, give special even segregation. purpose to them this jure de been “ though par they of a was, therefore, ‘elimi are characteristic to of the order branch,’ group. Before the Board ticular ethnic root and nate discrimination Education, deny may unconstitutionally County be found to v. Kent Board New Green 1689, to defi- 430, attention 20 remedial 88 U.S. S.Ct. 1 39 14, (1971). Johnson, 1215, Heung Guey 92 L.Ed.2d 19 404 S.Ct. 30 v. U.S. Lee See 798 deficiency

ciencies must first a con- non-English-speaking there be found of these duty provide stitutional them. Chinese students. socially de- distinguisha- commendable and However These criminal cases are might Dis- ble, however, ability it sirable be the School because provide special pay educa- imposed trict remedial convict to or a fine a fee disadvantaged programs state, tional stu- pay lawyer, or no re- has areas, lationship or to better purposes dents clothing to the for which the enable, judicial system or to more food to them criminal exists. Wealth adjust easily educa- themselves to their irrelevant -determina- factual environment, guilt, tional we find no constitu- tion of and is extraneous to reso- statutory upon we legal or basis which

tional lution of disputes. related See things done. Mayer supra Chicago, that these can mandate v. 404 U.S. at 193, 196, 372; 410, 92 30 L.Ed.2d S.Ct. rely Appellants which cases also Illinois, supra 17- v. 351 for a State Griffin have held unconstitutional 21-22, sys 18, Tate v. See also 76 S.Ct. to the criminal to condition access 399, g. Short, supra money. 401 U.S. 91 S.Ct. E. payment of tem Mayer case, on the 189, 668, In our Chicago, 28 L.Ed.2d 130. 404 U.S. hand, (1971); use v. other 410, State’s Williams 30 L.Ed.2d 372 language 458, in its schools of instruction City, 395 U.S. Oklahoma intimately properly related 1818, (1969); Draper v. 23 L.Ed.2d 440 socializing purposes for educational and 774, 487, Washington, 372 U.S. S.Ct. public were established.14 which schools Douglas (1963); Cali 9 L.Ed.2d 899 English-speaking nation. This is an fornia, 814, 353, 9 L. S.Ct. Knowledge required to be- Bennett, (1963); E.2d 811 Smith v. citizen, come a naturalized United States 365 U.S. S.Ct. likewise, 1423(1); California U.S.C. § (1961); Ohio, Burns 360 U.S. language knowledge requires (1959); S.Ct. 198(2), service, jury Civ.P. Cal.Code § Illinois, Griffin v. Eng- appreciation (3). Similarly, an also 100 L.Ed. 891 See understanding of lish is essential to Short, Tate v. legislative judicial proceedings, and (1971). Appellants rea Cal.Const, State, art. of the laws of the son that both criminal and IV, Cal.Code Civ.P. govern § § systems products of State English in the the nation. Use appropriate persons must ment to which foundation, firm while schools has this just And, submit themselves.13 money requirement payments indigent proper ad convict cannot take system the criminal does not. vantage system legal available lawyer, him if or a he not have does enough trial, sufficient of his record find we the lan Because money process or guage deficiency by appellants activate review suffered pay fine, Chinese-speaking his indirectly so the directly not caused agree of any lost action, this case the benefits State we system can judgment dis the district court tinguish understand Board case Brown taught. Furthermore, par Education, continues, argued, (1954), progeny allel in the fact it is L.Ed. 873 and its poverty jure as this that a convict’s is no more the de case, facts cases. Under responsibility appel- appellees’ cribable the State than the persons ages Yoder, 13. All sin between the and v. six compelled public (1972). sixteen are attend equivalent schools or receive education. supra. 14. See note 11 Cal.Educ.Code 12101. But § see Wiscon- Equal Clause lants under the Protection invidious not the result of laws enact- by no further them ed presently extends than the State historically, but textbooks, the facilities, by result deficiencies the same created with appellants the failing themselves provided and teachers curriculum as is English language. learn the For this district.15 the other the Constitution affords no relief duty has is no evidence that this There reason of pro- of the Constitutional discharged. been appellants visions under which complain sought Appellants further shelter. protec- appellees have denied them Furthermore, the determination by providing instruc such remedial tion special what difficulties unequal on as made available faced some students within a State or ap of the first class of basis. Members School District will be afforded extraor- Eng help special pellants receive no dinary curative action, intensity and the lish, class while members of the second complex taken, of the measures to is a (cid:127) instruction, compensatory are calling significant decision, for amounts part-time full- on a and some a some legislative expertise of executive through bilingual basis, and some time judgments.17 non-judicial value As teachers some with ESL (to welfare, these with which claims method.16 closely akin), of the citizens needs jure Both the de eases and must be reconciled with finite re- Priest, (e. g., de facto cases Serrano needs. sources available to meet Cal.Rptr. 601, P.2d Dandridge Cal.3d Williams, See (1971), constitutional claim predicated upon form some of State long as there is no discrimi governmental action, present or histori- nation origin, race or national . as has cal, which has created a classification alleged neither been by appel nor shown viola to be invidious and thus asserted respect lants with issue, to this Amendment. tive of the Fourteenth States should be free to set their educa (The creating sep has enacted laws State policies, tional including special pro race, upon schools Brown arate based grams needs, meet Education, supra, limit has Board of the State judicial ed among intervention to financing decide passed favor laws for school competing upon demands resources wealthy districts, students in tax-base commands, subject their only to supra; Priest, for free laws Serrano requirement against classifications be text books discriminate which rationally purposes related to the indigent, New York State Johnson v. are created. Department, Education 449 F.2d 871 (2nd 1971). Cir. Here the has es Dandridge, supra, State also tells us that schools, tablished Equal available to all “the Protection Clause does not require without cost. The classification claimed that a State must choose be- Regents Higher 15. McLaurin v. Educa- student same treatment as other tion, 94 L. Appellees students in such matters. requires Ed. no more. case before us have done no less. There, candidate, a Black Ph.D. whom the supra,, accompanying 16. Note 1 text. segregated university had admitted pursuant Appellants would have the court direct order, assigned to court was type particular to be afforded seat in the classroom in a though purposes designated them for remedial even row students, for Black to a dispute experts among there is reading Black table in the main room of library, specific better to whether teachers to a table purpose cafeteria. those who teach than held that practices Language. Separate violated Protection Clause, as it called to make courts not be defined before should Brown. pedagogic judgments. It ordered the school to accord the Black attacking every aspect prob- tween of a provided part pilot attacking problem lem or not the at all.” program.18 such, emphasis would 1153, 1162, 486-487, 397 U.S. at reasonably experimentation. quite be on 25 L.Ed.2d lan- This echoes the Therefore, some were guage of McDonald v. Board of Election within the their academic instruction 809, Commissioners, 802, program, U.S. 89 S. taken and some were out of 1409, (1969), regular Ct. only part- L.Ed.2d 739 the structure that, taught by time; pupils some were bilin- gual teachers, and some received their legislature traditionally “a has been step instruction intensive more ESL allowed to take reform at ‘one of limited finances addressing method.19 Because time, phase itself to the exploratory and the nature ef- problem which seems most acute lingually forts, not all legislative deficient Chinese mind,’ to the Williamson v. part.20 children took Optical Inc., Oklahoma, Lee 348 U. S. 489 [75 S.Ct. 99 L. regard due the nature of With (1955); legislature Ed. 563] nothing efforts, School District’s before losing need not run the risk an pro- would this court indicate simply entire remedial scheme gram managed has been so as to invidi- failed, through inadvertence or oth ously against appellants. discriminate erwise, every might cover evil that appellees find that We have not violated conceivably have been attacked.” rights appellants’ protection equal Accord, Kuebel, Schlib compensa- the administration tory non-English-speaking program for rehearing denied, the District. Chinese students within (1972); judgment is affirmed. Department, 449 Johnson Education Briggs (2d 1971); F.2d Cir. Judge (dis- HILL, District IRVING (1st Kerrigan, 968-969 senting) : 1970). Cir. I dissent. Judged by standard, adminis- majority’s compensatory view, construc- my education tration of In program non-English-speaking Clause Protection assign They suffi- Chinese children Francisco fail too narrow. rights passes importance District Unified School constitu- value and cient A child’s plaintiffs tional muster. Prior to the institution in this case. assert litigation, opportuni- right equal of this remedial educational stipulated 18. In addition to the 1,066 facts record discloses portion Chinese-speaking numbers Chinese and the students who receive help, help (supra, the total who need 1) remedial footnote consist of 487 Elementary found: (Grades School students 1-6 [Appellees] recognize “Defendants Kindergarten), High 342. Junior importance of an education High School' students and 237 Senior opportunities, Elementary School students. The 487 plaintiffs make education available School students include a total of 45 who [appellants] Kindergarten on the (C.T. same and con- 239). terms are of level. groups ditions as it is available to other Bilingual 20. The Chinese Education Bud- within the School District.” get of the San Francisco Unified recognizes “This Court that defend- period District for the 1966-1971 reflects ants have made efforts remedial toward following program: allocations for the programs Chinese-speak- 1966- 67 —0 ing students, although such ef- whether $88,016 1967- 68— forts are effective or in need of substan- $280,469 1968- 69— improvement tial is a conclusion $432,969 1969- 70 — the Court does not make.” at 419. C.T. $1,092,009 1970- 71— (C.T. 375). greatest ty importance is of the questions, speak ask answer abridged persua- should not be without with his classmates and teachers. When justification. justification sive No such he cannot understand the em- presented to the trial court ployed school, in the he cannot be said to held, that threshold, at the opportunity that any have an educational presented by plaintiffs facts against failed English-speaking sense. As his to make out a claim classmates, which relief opportunity his educational granted could be manifestly under the though Pro- unequal even there tection ceding apparently Clause. While equality con- is an illusion of since the facili- plaintiffs ties, books, have suffered a and teachers made available disadvantage gaining an education as to him are the same as those made avail- against English-speaking pupils, able to the rest of the students. It trial disadvantage court held that pupil knowing seems clear me did not scope come only foreign language within of the cannot be said Equal Protection majority Clause. The opportunity educational agree holding. with that basic to his fellow students unless and until he acquires facility some minimal in the judgment I would reverse the and re- English language. mand the to the case trial court for the taking of further evidence on defend- Interestingly enough, defendants them- justification, ants’ if any, for their fail- appear recognize selves the serious- ure teaching problem. particular- ness of the Two plaintiffs which already seek. The facts ly quotations pub- forceful from official opinion, show, my that the adduced lications of the San Francisco Unified System withholds Francisco School San School District are set forth below. segment readily identifiable from a “(W)hen [Chinese-speaking] these. English minority minimum an ethnic language youngsters placed grade are levels necessary according age expect- to their and are participate segment in the compete English ed to with their I of success. processes with chance speaking peers, they are frustrated being prima deprivation as such a view inability regu- to understand the Equal Pro- of the the ambit within facie lar . work. . . For chil- [these] tection Clause. dren, poor the lack of means performance secondary in school. The rep- they plaintiffs, and the class inevitably is almost student doomed to resent, grade children of dropout be a and become another un- recently parents im- who have Chinese employable ghetto.” Fran- migrated country. The law District, cisco Unified School Pilot school; quires these children to attend Program: Bilingual, (May 5, Chinese they they so, But enter the San come. 1969), pp. 3a; 6a, Appellant’s cited in speak System Francisco unable to Opening Brief, p. 11. English language. understand the immigrant family, in-settling “The All the instruction receive people, op- its own as are and all of has books limited portunities for visual materials which are used. As assimilation into the brief, language. American culture and (cid:127)the amicus from the Harvard Uni- Of- ten, immigrant versity only and Education student’s Center Law con- English language puts it, tact with the be- is dur- physical presence class, during class time. as audi- After comes “mere strange immigrant play recesses, do lunch and ence to correctly among child tends to seek friends understand.” These amici oth- er new stress the fact that the essence educa- arrivals. ... In so doing, develops there tion is a small child can a further communication: bond reinforcing language. profit only when he from his education instruction, opportunities New is able understand afforded Eng- speak taught anything except in Chinese for the student . . . English. speak in China- home he is back how to lish once Jenkins, Su- E. Robert Dr. town.” stated, As I opinion am of the that Schools, Francis- perintendent (which the facts stipulated to) are all District, Chinese co Unified reflect, prima impermissible facie, an in- Preliminary Bilingual A Education: fringement plaintiffs’ rights under p. Transcript, Report Clerk’s Equal Protection Clause. Plaintiffs 244. (1) they have shown that do not have opportunity the same (2) as others and na- majority misapprehended The group deprived that so an is indenti- sought case. this relief in of the ture segment minority. fiable of an ethnic seeking plaintiffs They characterize as legal IAs understand the relevant “bilingual have education.” Plaintiffs prima equal principles, a denial of facie carefully abjured repeatedly and protection occurs whenever the method clearly objective. complaint such respect of classification with to the en 24) (Clerk’s pp. Transcript, states govern joyment non-enjoyment or of a plaintiffs’ in the trial and as briefs right, obligation opportunity mental or (Clerk’s 162) Transcript, p. in and “suspect.” suspect A is is classification re-emphasize, plaintiffs seek this Court only government “defendants . . . that is whenever action linked English disadvantage comparative instruction that in and to mem with taught by type group. be ... of a certain bers That Reply Appellant’s religious, group may be, alia, a teachers.” inter empha- political majority group group or or a Brief, p. ethnic When the 12. “English-speaking identifiable terms of the members’ is size that poverty.1 “lan- sex or relative classifi is 2**Such that nation” and public suspect (and prima guage in all cations are in instruction” facie e., valid) factors, schools, up man which i. they reli set straw a race, etc., gion, are, except they truisms. clothed irrelevant in extraordi have taught nary instances, and rare do to be irrelevant not seek Plaintiffs They improper determining Chinese, part. seek whole or in criteria English. They government claim, scope application only or to learn rights, benefits, opportunities cannot apparent justification, and obli gations. They English effectively suspect because, it is unless learn authority puts it, rarely a taught by persons have who one to them only language they “proper governmental objec under- facility in the case e., stand, require i. seems abundant- . . . Chinese. It tives their plaintiffs carving out, ly clear that as soon as achievement rela enough proficiency disadvantageous treatment, tively achieved teachers understand defined or ethnic class racial [their participate Michelman, composition].” somewhat and classmates Su instruction, preme will in the course Term —Forward: Court 1968 On Protecting expect Through uttered to be no further Chinese the Four the Poor in- They not seek Amendment, in their classes. do teenth 83 Har.L.Rev. (1969).2 or to struction potential high or for for abuse a which has Virginia, g., Loving See, e. minority can a as a tool ; use (1966) systematically deprived access Thompson, Shapiro , society right offers. benefits ; the Furthermore, S.Ct. 1322 potential has a criterion Examiners, Bd. of Chance stigmatize group implying hurt or a 1972). (2nd Cir. recognition group’s inferior- official arbitrary being apparently In. addition Michelman, ity undeservingness. See irrational, char- Michelman Professor supra, at 20. suspect one classification a acterizes strength justification government of the need- particularly When action prima ed to overcome affects violation of or burdens class or facie Equal group, vary Protection Clause will it is often called “discrimination.” depending right important the nature It in- remember right volved. When the involved is a required intent discriminate in or- one, only compelling fundamental der invoke the Protection justify abridgment, interest will its apparent- Clause. can One deal with an necessary ly discrimination must be non-discriminatory neutral stat- overriding gov- achievement ute or applied scheme which is or en- See, g., Shapiro ernmental interest. e. any forced without intent to discrimi- Thompson, (or v. 394 U.S. 89 knowledge even S.Ct. nate without that (1968); 22 L.Ed.2d 600 Dunn one) the effect v. discriminatory is a Blumstein, 92 still S.Ct. 31 Equal run afoul of the Protection (1972). Dillenburg L.Ed.2d illegal 274 v. Clause if discrimination in fact Cf. Kramer, (9th 1972). F.2d 469 1222 Cir. particularly results.3 When such action right When the involved is less funda- affects or burdens one of the classes or mental, compelling may a less reason groups above, presump- mentioned it is justify abridgment, suffice to its illegal tively However, discrimination. may permitted the discrimination be illegal. not all discrimination is Discri- rationally related to the achievement of apparently illegal may mination which is overriding governmental See, aim. e. showing be excused that the dis- g., Dandridge Williams, v. justified or crimination classification is 90 491 by overriding governmental objectives and necessities. rights Turning to the involved now Judge Feinberg, case, v. in Chance it be doubted that cannot this (2nd Examiners, opportunity right F.2d 1167 of 458 to Board 1972), racial of harsh fundamental states: of most vital and “[A] Cir. one unintended, impact, rights enjoyed even if Americans. of the ethnic] [or Court, classi- Supreme in Brown v. Board to an invidious de amounts The facto ignored “per- Education, or an- it as cannot be fication that characterized very least, shrug. important function haps with a At the most swered governments” requires and ob- that state ac- the Constitution and local state “(i)n days, spawning is doubt- a classification ‘be it that served reasonably legitimate may justified by state considera- be ex- child ful that ” if is denied pected life he tions.’ 458 F.2d at 1175. succeed in to 3. states, As the banc, 1972) pp. 1172, Fifth (5th Circuit en Cir. F.2d 1171 461 disposing despite Rehearing Furthermore, of a Petition for that the fact the case of Shaw, past Hawkins v. Town of where Hawkins in a situation arose Miss., (5th 1971) F.2d 437 1280 Cir. could be inferred : discrimination historical prevail present “In order to intent a case of this some evidence and where type court, necessary prove intent, not to was before to discriminate purpose Wisdom, motive Judge in his concurrence discriminate on the part city Rehearing, officials. We feel that the Petition on Hawkins ‘ point clear, “equal law on protection “not be should the ease that makes clear imply in this of the laws” decision means more than that our read merely part proof governmental the absence on action even based case was designed ; motive, purpose, F.2d at discriminate intent.” “we firmly recognize Kenendy arbitrary now Park Homes also See quality thoughtlessness Lackawanna, City 436 F.2d can be as dis- Ass’n private 1970), rights (2nd den. astrous unfair cert. Cir. public perversity interest as the ; willful rel. Seals scheme”.’ Norwalk ex CORE Nor- States United ; 1962) Redevelopment (5th Agency; Wiman, walk Cir. Cir. F.2d Examiners, 395 F.2d 931.” Hawkins v. Town Bd. of Chance Shaw, Miss., 1972). Rehearing, (2nd Petition for Cir. opportunity 347 equal of an education.” of the class treatment opinions hold at 691. involved. But of the none disadvantage that historical attributable given the Thus, when defendants qua state is a sine non for obtain- justifica- present their opportunity to ing relief. necessarily showing tion, would ex- persuasive in the required group to be is clear In of cases it another certainly present granted record

treme. relief is under justification. best, it At no such shows historical Protection Clause where no defendant placed indicates the state. can be blame remedy obligation effort has made some board deal with the These cases deficiency of some services the state to partial Chinese-speaking That students. are unable to criminal defendants who justification. It not a full effort is goes themselves. pay for services Some merely dimensions opinions to reduce the Supreme of these problem. subject footnote.4 are collected proposition for the These cases stand allowed to could be defendants poverty may person’s be the that a trial, limits of show, the the resumed in denying the facilities basis for him same conflicting demands resources, the their charges combatting in criminal and aids against resources, their upon those made enjoyed who as are him ap- priorities judgment to be as to the pay for and aids can such facilities with demands. plied those resources ac- their own Affirmative state funds. decide wheth- then And the court would required inequali- tion is to redress the justified in their are er defendants duty ty, im- and the state’s to redress is provide bilingual refusal to instruction posed or without reference to whether teaching English for the to all of the in can that the state some not way be said it Chinese-speaking pupils require who it. inequality in the first caused place. duty majority apparently The take foreclose state’s affirma- The Equal tive action does not arise because it can plaintiffs from relief under primarily language be said that the state is Protection Clause because their deficiency directly sponsible making poor poor. man a was not “caused duty Rather, by any indirectly oth- arises because the state In state action.” every put justice words, majority within reach see the must er provide only if chooses to when man the state available Protection Clause as justice system of criminal at all. inequality results Simi- or discrimination larly, present the state chooses discriminate when intent to from some govern- past makes attendance education and or historical or from some duty grant compulsory, discriminatory has a for which school conduct mental oppor- majority educational to each child an tunity The the state can blamed. be illegal duty to avoid dis- previous and a so limits decision which cite duty does not arise crimination. That scope Equal Protection of either a most, all, of the existence true if not Clause. It is past present discriminate requiring intent remedial decided eases Rather, deprivation discrimination. historical action to redress once the state choos- history duty arises because of un- arose there was a where Illinois, “(o)ur Griffin v. 76 S.Ct. stated decisions for more (1956) ; Douglas 100 L.Ed. 891 than a decade now have made clear that California, differences in access to the instruments (1963) ; legal 9 L.Ed. rights, Anders v. Califor- needed to vindicate when nia, 18 L.Ed. based the financial situation of the , ; LaVallee, defendant, repugnant 2d 493 Roberts v. are to the Constitu- tion.” 88 S.Ct. at Roberts, Supreme In HUFSTEDLER, Judge, put Circuit es itself of educat- business Judge dissenting Ely concurs, ing children, whom give it must each child the hearing from the denial of en banc: priori- best education its resources and ties allow. rejection I dissent from the of en banc presents plaintiffs consideration. The case The in this unusu- last word. One ally important small, Chinese-speaking sensitive chil- constitution- case are majority opinion al The issues. behalf and on sue on own states dren who principles statutory similarly The and constitutional others situated. behalf of plight law that cannot majority be reconciled with con- describe trolling authority. being prin- of deficien- children “the result Unless these ciples now, appellants protections themselves corrected cies created Rights English failing seriously lan- the Civil to learn the Acts will be impaired guage.” some fault this Circuit. To ascribe “fail-, grade his child because of school correctly majority opinion identi- English language” ing to learn the groups of children who fies the two inaccurate. If callous and seems both (1) 1,790 brought this action: Chinese anyone can blamed speak no who children, it is their of these deficiencies taught none, (2) 1,066 and are parents the children themselves. and not speak no children who (and parents can be faulted Even if the of remedial receive some kind and who cannot, many since cases English. majority’s newly arrived themselves sought as characterization of the relief struggle strange land in their “bilingual misleading. The education” is may neither have had time survival do not their classes children seek English), study any opportunity to nor taught English both Chinese. keystones of our culture is one of the it they ask is receive instruc- All the fathers the sins of law that and our English language. the upon the children. to be visited are not ' by offered Access to completely foreclosed public is schools BANC EN OF ON REJECTION comprehend who cannot children these CONSIDERATION functionally They deaf it. are ORDER plight is not a matter mute. Their concern, according to constitutional request On member of majority opinion, state because no panel, pro- who not a member is discrimination or invidious ceedings action February were commenced says majority opinion present. The 1973 to obtain a vote the court the state is absent because state action consider case en banc. directly indirectly cause did not All of the court in active members “language deficiency”, children’s request service have considered the invidious be- not that discrimination is majority en banc consideration. A offers the same instruc- state cause the rejected request. court has premises are Both tion to all childen. wrong. Judge Hufstedler, Judge whom with dissenting opinion Ely concurs, files an The state does not cause children to rejection considera- bane of en from the speaking only start school Chinese. Nei- tion. ther does a state cause children to have Judge Judge Trask, whom black skin rather than nor white cause Wright concurs, charged con-* person files with a crime to be in- digent curring opinion. rather than rich. State action 45; Shelley L.Ed.2d responses to differ- 81 S.Ct. depends state (1948) v. Kraemer created. ences otherwise 1161; Nixon v. Condon 92 L.Ed. sepa- children are These Chinese not (1932) L. English-speaking class- rated from their 984). Ed. mates state-erected walls of brick and majority opinion concedes (Cf. The Board of Education mortar Brown v. English speak re- (1954) the children who barrier, language are 873), no education and who ceive L.Ed. but English given help maintain, cannot helps some insu- Eng- education as their ceive the same lates from their classmates the children short, speaking dis- effectively any physical lish classmates. In as bulwarks. Indeed, is Discrimina- crimination admitted. are more isolated children constitutionally tory opportunity not than treatment from impermissible, they say, physically segregated all chil- were those blacks Brown; dren are offered the same educational these children cannot com- fare, e., equal unequals with their treatment municate at all classmates i. equal protec- satisfies demands of teachers. Equal Protection is not tion. The Clause response the non- The state’s discrimination so feeble. Invidious speaking Chinese away not washed because the able bodied compels the chil- passive. The state paraplegic the same (Cal.Educ.Code school dren to attend state command to walk. English as the basic 12101), mandates § (Cal.Educ.Code holdings contrary to majority authority. Supreme mastery a cascade imposes 71),1 and § Although majority opinion acknowl- graduation prerequisite edges many of these the existence of (Cal.Educ.Code high public § cases, attempts them to circumvent 8573).2 pervasive involvement reducing concepts levels state action language problem very the state with years unacceptable for a hundred majority’s challenged find- forbids prior drawing to confine the distinctions (E. g., Bullock of no state action. jurisprudential cases to an uncharted Carter territory Wilming- remote from San Francisco Burton great protection equal cas- schools. The Parking Authority (1961) ton 2. § 71: § Cal.Educ.Code Oal.Educ.Code 8573: language of “English pupil diploma basic the be shall receive a of shall “No grade graduation in all schools. 12 who has not instruction any study governing completed dis- school of the board the course of and met “The may by any private proficiency prescribed deter- school and standards of trict pro- governing what circumstances under board. Standards of and may mine when bilingually. ficiency in basic skills shall be such as will be instruction ability policy to insure the state and enable individual achievement “It pupils by Require- mastery English in all to be ascertained and evaluated. graduation schools; provided in- shall include : ments for (a) English. may situa- those in be offered struction history. (b) educational- American instruction tions when Bilingual pupils. government. (c) advantageous ly American (d) to the extent Mathematics. is authorized instruction systematic, (e) Science. interfere it does Physical education, (f) regular all sequential, unless exempted language. pursuant English pupil pupils to the has been in the E'nglish provisions proficient “Pupils in code. who may completion by (g) ad- who, other courses Such successful language foreign prescribed.” in a vanced courses means, fluent have become other language'may in classes be instructed language.” foreign in that conducted size English— es cannot be shrivelled denial instruction to learn prescribed. majority opinion has anything rationally and hence to learn — any legitimate related to state end ? The scrutiny test were Even if the strict rationale, state offers no and I am un- inapplicable, children made the Chinese any. able to discern prima claim of in- out facie case. A a against who those vidious discrimination A second (1) classification is: all only speak write came could Chinese Chinese school speak children who do not years English Supreme taught Court almost 50 (2) and are none versus (1926) ago Cong Eng (a) in Yu v. Trinidad identically children situated who re- L.Ed. 1059. per day ceive six hours special in- Philippines struction, enacted a statute represented The had by group a of 433 requiring books to be plaintiffs, (2) (b) business account children also iden- any kept solely English, Spanish, tically situated who receive one hour per day petitioner, special The a Chinese local dialect. instruction, represent- speak neither nor ed group merchant who could plaintiffs. a of 633 Al- though any except chal- write lenged Chinese some provid- education is ed, process on due the statute is not made available to all on an grounds. Philip- equal equal protection (See basis. Brown v. Board of statute, pine (1954) like California Education statutes involved, facially here neutral. Mr. 98 L.Ed. Griffin v. Illinois Taft, (1956) speaking for a Chief Justice unani- L. 891.) court, Nothing Ed. a appears mous struck down the statute on the face equal protection.3 explain denial of record to why children are placed in one class rather than another. relevant, The classifications that are impossible It is thus to determine wheth- protection problem to our in this er the basis of distinction has ra- ways. case can be defined in a number of tional any legitimate connection to unnecessary It is to describe more than aim.4 three them to structure constitu- (1) A third classification is: all inquiry. tional narrowest classifica- non-English speaking Chinese tion created state action is this: tutelage who receive some remedial (1) all school children in the dis- English (2) versus all of their class- speak trict who can versus speak English. mates who It is conceded Chinese school children district that children in taught the first class speak much have who cannot and are narrower 1,- access to by group English, represented than chil- dren in the second. plaintiffs. Is there Children the first class rational declining education; bridge basis for full access to educa- gap tional Again between differ- none. The sole two classes? the second have linguistic. required the state has not been ence them is Is between ease, Gong segregated Eng, In our dren to attend unlike Yu there is ultimately no The indication that Chinatown. order was California intended pressure injure litigation, withdrawn under statutes of Chinese. Congress, abundantly good of and of But it is now the President that clear Prejudice McWilliams, p. impact faith United States. is irrelevant if in fact (1944). 26 discriminatory. g., of state is action E. Wilmington Parking Authority, Burton v. 4. This Dandridge is not a case like v. Wil- supra, 715, 725, 856; (1970) 471, 365 U.S. 81 S.Ct. liams 1153, 397 U.S. 90 S.Ct. (1962) 186, 491, Baker v. Carr 369 25 U.S. L.Ed.2d where there of. was a clear 691, distinguishing 82 7 L.Ed.2d 663. basis for California’s S.Ct. between welfare against recipients regulation record of deliberate discrimination stated in the is- Japanese requirements Dandridge is sue. nevertheless The —“It lengthy. chapters enough One sadder in that the State’s action be ra- melancholy history tionally that based was order of and free from invidious dis- (Id. 487, the San Francisco hoard in crimination.” Oc- 90 S.Ct. at tober, 1906, compelling 1162) all Oriental chil- not been met in this ease. —have 808 rejection con- curring of en banc one, showing supply in and there is no sideration : children, record that those fac- misapprehension them, portion in A the first class are basic color, per- if not meaningful opportunity seems tual situation afforded a re- vade, the court’s Here, from public in the dissent education. minimum grant- consideration. 134, (1972) en banc fusal Bullock v. Carter that the statement 92; appears 849, 92 This 31 L.Ed.2d S.Ct. Reed majority opinion 71, 251, concedes (1971) “the Reed 404 92 U.S. S.Ct. English no speak receive 225; (1971) no who 30 L.Ed.2d Tate v. Short stipulation 395, 668, . .” . education. U.S. S.Ct. 130; was submitted the case (1970) Williams v. Illinois opin- majority 235, 586; 2018, 1 of decision [footnote 26 L.Ed.2d Chinese-speaking 2,856 Douglas (1963) v. California refers ion] need 353, 814, 811; district “who in the school students 9 L.Ed.2d S.Ct. Grif English.” It con- special (1956) in fin v. Illinois S. U.S. dividing into 891; students Ct. 100 L.Ed. Brown v. Board tinues designated group (1954) receive who Education one U.S. English special help 873; in 98 L.Ed. Yick amounts Wo not, Hopkins (1886) who do not. Those those who do U.S. no however, receive not assumed “to par 30 L.Ed. the state has Although not re- ticipated against some do discriminating in education.”

clearly special help, no indication there is ceive identifiable class its failure exposed they remedy to whatever discriminatory practice English ma- justified courses are afforded. has not been at all. equate need jority opinion does not The state did not meet even its mini- English help” “special obligation mal burden. But its ceiving “no education.” meet stringent the far more test of may be for the Little comfort dissent scrutiny. strict The Chinese children Independent found Antonio prima rigorous have'met facie even the Rodriguez, School District standards Independent San Antonio Rodriguez School District (1973) 411 Although an iden- the Chinese here were help group needed tifiable “who (1) They are precise- members of a class English” 1], [Stipulation, footnote ly identifiable, (2) partici- the state has portion approxi- a small were pated discriminating against them, 15,500 mately It Chinese students. speak the children who not difficult to assume that were taught and are absolutely none are de- larger part group students an even prived of education and it has not been English.” special help in “who need shown taught those who are some recognized Rodriguez meaningful have a access to an not, where Protection Clause does adequate education. San Antonio Inde- involved, “require wealth is absolute pendent Rodriguez School District v. advantages.” equality precisely equal pronouncement the most leng- recent in a Continuing, thy protection equal chain of cases. But “Nor, indeed, infinite view of the alone, even if it stood San Antonio In- affecting dependent variables compel District would process, any system can assure reversal. quality except in the most TRASK, Judge, Circuit relative sense.” whom Judge specially WRIGHT concurs, S.Ct. at 1291. con-

Case Details

Case Name: Kinney Kinmon Lau, a Minor by and Through Mrs. Kam Wai Lau, His Guardian Ad Litem v. Alan H. Nichols, President

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 18, 1973

Citation: 483 F.2d 791

Docket Number: 26155

Court Abbreviation: 9th Cir.