*1 al., DE CRUZ et LA Sue
Plaintiffs-Appellants, al., et
James TORMEY
Defendants-Appellees.
Nos. 76-3355. Appeals,
United States Court of
Ninth Circuit.
Sept.
Chаncellor the District and the Presi- dents of the colleges District’s three —have a policy followed all efforts opposing and community groups students to establish District, child care thereby facilities denying burdening equal plaintiffs’ ac- *3 cess the opportuni- to District’s educational allege impact ties. the Plaintiffs that of women, this policy overwhelmingly falls on Golubock, Broadwell, Ann Thom- Carol R. and care resultant absence of child Adams, Legal Society Aid of as R. effectively facilities them from obtain- bars Cal., County, Daly City, and Mateo San ing higher the benefits of education. In Cal., Wildman, Berkeley, Stephanie M. particular, is asserted defendants plaintiffs-appellants. for arbitrarily practice” a “policy maintain and Atty., III, Dist. Casey, Deputy F. Thomas refusing of allow care to child facilities on Cal., defendants-appel- City, for Redwood campuses, refusing apply accept for or lees. for the funds establishment or maintenance centers, of care refusing child and to allow purposes. District funds be used for these complaint pleads The four claims for re- WALLACE, and KILKENNY Before plaintiffs lief. In their first claim state PALMIERI,* District Judges, and Circuit that the defendants have violated their fed- Judge. eral right to be free from sex discrimination PALMIERI, Judge: District programs receiving educational federal monies under IX the Education to de- Title of Act appeal upon In we are called this Amendments of U.S.C. § statutory constitu- termine whether and provides, part, which as follows: facially neutral but al- challenge tional shall, official action legedly person No in the United on States sex, pleadings. partici- be on the The issues of resolved the basis be excluded from of, signifi- in, presented pation for review are narrow but be denied the benefits cant, questions subjected any of le- involving troublesome to discrimination under ed- gal proper program receiving and role ucational interpretation activity of of judiciary overseeing the deci- Federal financial federal assistance. of local administrative bodies sions second, Plaintiffs’ claim states that de- public field of education. Equal fendants’ actions are violative of the Protection Clause of Fourteenth with low young women are Amendment to the United problems States Constitu- of burdened with incomes intentional, tion they because constitute in- complaint is rearing, essential whose child vidious, gender-based and facilities discrimination campus child care lack of College arbitrary because and unrelated to Community Dis- in the Mateo San legitimate goal providing education. them an District) deprived (the trict They have opportunity. equal educational relief, plaintiffs In their prayer re- and own behalf this action brought quest, alia, declaratory judgment inter similarly situated of others on behalf the effect defendants acted ille- 1871, 42 U.S.C. Act of Rights the Civil gally and unconstitutionally, temporary and under 28 U.S.C. exists 1983. Jurisdiction § and permanent injunctions restraining de- 1343(3) maintaining fendants from their allegedly policy “anti-child-care” action is that plaintiffs’ The thrust of requiring them to take affirmative steps Trustees and Board of defendants —the Senior United States District Judge for the Southern g Palmieri, o L. si na i n. *The Honorable Edmund t York, sitting by District New de development might a view to the proved support plain- child District, including tiffs’ claims. care the allowance campuses, private accept- centers on II. federal, state, county ance of funds for purpose, and the use of own funds The Nature the Alleged Discrimination to this end. satisfactory characterization response to a motion defendants governmental action allegedly unlawful pursuant 12(b) to Rule of the Federal Rules sought present be remedied suit Procedure, of Civil District dis- legal novelty of some poses problem ground missed the entire complaint on the magnitude, one whose solution re- little that it failed state claim precise quires scrutiny a closer claims granted. relief could appeal Plaintiffs then, begin, We with a thor- made. more much so of the District Court’s chal- ough specific review of conduct as dismissed order their first two claims for lenged plaintiffs. *4 claims, relief. Their third and fourth in- chronicling apparently After severe law, volving matters of California stand shortage of child care facilities for low-in- finally dismissed and are not before us. County, come families in San Mateo states, complaint quote and we at some I. length: applied The standard in ruling to great In order to document the need for on a to motion dismiss claims for legal presentation care child for to Board insufficiency motion viewed with disfa —a Trustees, Fall of the Asso- courts, vor the federal Laugh Rennie & College ciated Students of the of San lin, Chrysler Corporation, Inc. v. 242 F.2d Mateo, (ASCSM) survey conducted a (9th 1957) Cir. well established. — is their over students as to needs for applied: In the words of the most test often began care. a child also ASCSM appraising sufficiency In of the com- co-operative effort with members follow, plaint accepted we Planning to conduct a fea- District Staff complaint rule that a not be should dis- sibility study campus. for care on child missed for failure state to a claim unless efforts, Pursuant to these defendants appears beyond it plaintiff doubt that the persuaded were to a con- hire child care prove can no set support of facts in of his sultant, Brock, to do a for study Sue a claim which would him to entitle relief. approach solving to District-wide Conley Gibson, 41, 45-46, 355 U.S. problem. care child 99, 102, (footnote (1957) L.Ed.2d 80 August, In presented to ASCSM omitted). defendants, Trustees, Board of the results plaintiff’s issue not whether a of their survey showing overwhelming success on the likely merits is but rather care, for need the report child of the whether proceed the claimant to is entitled care child consultant which further docu- beyond the attempting threshold in to es overwhelming mented the need rec- Moreover, tablish his passing claims. on ommended a five-step program to deal dismiss, motion allegations to with the problem including child care ap- complaint favorably should be construed plication for state funding. and federal pleader. Rhodes, Scheuer v. support representatives With L.Ed.2d community groups various Wright Miller, See 5 & Federal Practice and space ASCSM recommended that des- Procedure: Civil ignated immediately campus for the task, then, Our clearly We defined. organized use of students who had care must appears determine whether for co-operatively youngsters while to a certainty existing under law that no comprehensive program child care relief can granted any under set facts being developed. any space
The defendant Board of Trustees refused room or other at the College. October, 1975, take In group action. of women stu- dents at Skyline College approached the September, In the District Advisory local elementary school district and were Early Committee for Childhood Educa- space offered for a child care center if tion, composed a committee of faculty the District co-operate would in the es- Early and students of the Childhood Edu- tablishment of such a center. The Dis- Department representatives cation and of trict did not respond to the offer. of the community community publiс agencies, December, 1975, In report service issued a recom- the two groups of mending the development of child care women students who had formed child facility provide care for co-operatives children of care applied to the State students and to additional labora- Board of appropriat- Education for funds tory Early Childhood Education ed the Campus Development Child [sic] (Stats.1975, Act p. students. Defendants refused to act on Ch. 2654 [2391]) repeatedly recommendation and have to fund child care centers in off-campus year applications refused to do so each since locations. These ap- were *5 prehensive Employment Mateo Act staff to application staff of a local en Canada students, applied February, [******] ([29] County manage College, U.S.C. had been under Title I of the Com- Manpower agency a child care center. The §§ a faculty member at for a 801 et support encouraged by grant and’ seq.) from wom- from San Training as the pay funds, nor to ties as tions for the centers. ed the centers. The District would not have been thwarting attempts to establish child care by the proved by Board voted to refuse the required required private District. On January donate State sources could have matching funds and loca- spend any subject any of its own facili- funds, 14,1976, of its own acceptance provid- again Manpower Planning County Council had Initially, it is difficult to conceive how $78,000.00 allocated for child care in the events, this course of which would seem to College area where Canada was located. reflect little more than a series political application preliminary ap- received defeats in an area traditionally reserved to proval from Manpower staff for the the sound policy-making discretion of ad- $78,000.00. However, approval by full ministrative legislative bodies, can necessary defendants was ap- before final form predicate legal for a challenge. proval. accept Defendants refused to However, upon inspection closer appears these monies. plaintiffs amply stated a ers who were students at In the and had [******] Summer of organized a child [care] Canada group co-opera- of moth- College ties makes clear that this is so. claim of discrimination entitling them to an opportunity tions. A review of to make good governing on their allega- authori- given tive were permission space to use There are two fundamentally differ basis, a church temporary on a rent free. ways ent governmental action can group appealed defendants run afoul of Equal Protection Clause of any support the District possibly could the Fourteenth Amendment or pro statutes give. They support were denied hibiting invidious discrimination. The first form. occurs when the Government explicitly clas September, 1975, defendants refused a sifies or distinguishes among persons by group of women students the College reference to race, sex, criteria —such as reli gion, San Mateo who had formed a child or ancestry have been deter —which co-op permission care to use a improper vacant mined bases for differentiation. action is often governmental require explanation termed Such in terms of non-invidi- “facially” discriminatory.1 purposes. Not all such ous dis criminations, unlawful, are but Here there can be no claim of discrimina only those which cannot sufficiently tion of the first sort. The decisions and necessary accounted accomplishment actions of the District which seek legitimate objectives. subject scrutiny are not re
stricted in their application to the members
other;
of one sex or the
on-campus child
variety of
subtle
care
A
and more
facilities
are equally
second
unavailable
focuses,
the form of
both
women,
not on
men
discrimination
and to those both
first,
action,
with
governmental
as does
and without child-rearing responsibil
As with facial
ities.
upon
rather
its results.
No
employ
classification
sex or
which,
discriminations,
or actions
ment
gender-related
decisions
appears.2
criteria
nondiscriminatory,
produce
This
while in form
fact has
consequence
of rendering
adversely
dispro
weigh
largely
inapplicable
effects which
the growing body of
partic
of a
upon
dealing
the members
cases
portionately
explicit
gender-based
individuals, may
discrimination,3
protected group
ular
compelling
us to navi-
very
elaborately
by gender
more
1. For a
recent case of discrimination of
that classification
sort,
Regents
University
impermissible
important governmen-
this first
see
unless
-
Bakke,
-,
objectives
substantially
tal
California v.
furthered there-
Goldfarb,
(1978).
by.
n.8,
ble it clear that at allegation, the level of There can be little doubt that a discrimi child care centers in addition to least some natory effect, as that properly term is un have been already those in existence would derstood and has been used not acted— established had the defendants Court, has been adequately alleged. The they alleged or refused to act —as did. The concrete consequences human flowing from consequence upon plain effect of this facilities, lack of sufficient child care represent tiffs and the class claim to very practical impediments to benefiсial following excerpts stated in the from the participation in the District’s educational complaint: are programs, asserted to fall overwhelm plaintiffs in this action include moth- ingly upon women students and would-be ers who community would attend a col- students. The abstract character of this lege County Mateo San but who cannot effect legally indistinguishable from that community college solely attend a be- disproportionate characterized as impact or cause the lack of child care facilities. discriminatory effect in Lau Arlington plaintiffs in this action Other are able to Heights. Additionally, it cannot be said community college only attend from the pleadings plaintiffs will be through use makeshift tempo- unable to degree establish the of statistical rary arrangements. child care All of the imbalance trigger which sufficed to further plaintiffs being in this case are denied an inquiry Davis, in such Griggs, cases as opportunity for education or are threat- Dothard. If an unsurmounted obstacle to oppor- ened with denial of educational the successful statement of a claim of dis tunity solely on account of the lack identified, crimination is to be it must be Mateo child' care facilities San found elsewhere. Community College District. Since It remains to consider a number of plaintiffs employment cannot find with- preliminary other objections may education, out more the denial of child actionability advanced to the alleged care facilities forces the into Initially, questioned facts. how paying jobs low or onto welfare. the defendants’ inaction or refusal to act ****** Plaintiffs and the class thus basis of sex cess facilities is a burden which falls almost the District. the benefits of educational exclusively practices, As a result of defendants’ en from [******] to educational being deprived participating educational on women and the lack of child care opportunities of their in and denies they represent opportunities prevents programs right policy on the of ac- wom- them are Heights or Lau. “acted.” The fact that this action assumed to suits criminatory tion. discrimination has been answer to this can form the basis for a claim of discrimina negative challenged child It may even be said that no “act” of present proceeding upon care character can no more be a bar effect. suit than it was in Arlington area defendants havе objection conduct is of little relevance By is that the form of their decisions in theory at all. The of dis surely not made available are made available persuasive In a more refinement of unequal however, basis to substantial num- objection, on an dissenting our brother challenged policy, than to the char- rather number of distinctions 5. The dissent notes a discriminatory vel acterization of its effects as present and the which we between Lau non, importance of those distinctions can do minimize. The facts in that case stage litiga- appraised at a later of this justification presented compelling for more authority They tion. do not constitute alleged. intervention than those here premature go proffered termination. to the back- But as the distinctions circumstances, legitimacy ground, and hence *9 54 at p. 69. v. Thompson, From Palmer Geduldig of v. Aiel- 403 strength
argues, on the
217,
1940,
2485,
91
29
S.Ct.
L.Ed.2d
484,
438
lo,
417 U.S.
(1971), he
Gilbert,
would draw a
prin
correlative
Co.
(1974),
256
Electric
General
viz.,
401,
ciple,
impact
the effect or
125,
upon
97
S.Ct.
Satty,
would-be beneficiaries
of a partic
Gas Co.
(1976), and Nashville
347,
ular
social
136,
program
L.Ed.2d 356
or economic
which
S.Ct.
a government
body
be shown
not
discriminatory effect
decides
to initiate or
that no
support
“declines to extend an
excluded from the
simply
definition
where one
of
disproportionate
discriminatory
value
effect.
Post
p.
of
at
additional benefit
70-71.
group
For
particular
forth
reasons set
in the margin,
to certain members”
existing benefits are we
long
Geduldig,
as
conclude
people,
Gilbert,
of
so
hand,
Satty,6
neutral
fashion. Post
Palmer,7
available in a
on the one
made
litigants
mind that the
sex-based
as such
It must be
discrimination
not the
[is]
6.
borne
135,
proceed upon
analysis,”
Geduldig
did not
a
end of the
id. at
S.Ct. at 407
Gilbert
discriminatory
(emphasis
by
theory
added),
necessity
per-
effect.
Court
it
of
inquiring
showing
ceived of
stated:
further whether a
Gilbert
discriminatory
of
had been
effect
made—an
respondents
Geduldig,
have not at-
As in
inquiry
unnecessary
have been
demonstrating
would
if
tempted
of
to meet the burden
discriminatory
the Court had
the view
gender-based
been of
that the chal-
effect result-
a
ing
lenged plan
categorically
pregnancy-related
was
immune from a
from
exclusion
finding
discriminatory
coverage.
effect. As the Court
disabilities from
said, again
(footnote
construing Geduldig,
at 409
omit-
429 U.S. at
ted).
gender-based
explanations
Since
for this choice of
discrimination had
Probable
not
strategy
apparently
been
received
shown to exist either
the terms of
are that women
plan
effect,
aggregate
its
there
chal-
was no need to
more in
benefits
men,
question
lenged plans
Geduldig,
reach the
of what sort of
see
standard
than did
prior
govern
would
review had
U.S. at 497 n.
and that
our
there been such
showing.
interpreta-
the uniform
Gilbert it had been
(emphasis added).
Appeals
Id.
See also id. at
that had
137 n.
tion of all of the Courts
showing
gender-
question
S.Ct. 409.
that the treatment of
[“Absent
considered the
pregnancies
discrimination,
differently
based
as
that term is
from other disabilities
defined
Geduldig,
showing
gender-based effect,
discriminatory
per
VII
was
text,
in the Title
con-
se
703(a)(1).” (Em-
there can be no
phasis added.)]
unnecessary
violation
making
to establish a
thus
disproportionate impact.
See cases cited
A
consideration of
manner in
which the
Gilbert,
(Bren-
55
further illustrated
its remand of the case in
Satty
respondent
for a determination whether
that,
say
the
of
went on to
in
absence
Court
adequately preserved
right
proceed
had
the
to
proof,
any
impossible
gender-
find
such
“it is
to
pre-
further in the district court on the “mere
discriminatory
simply because
based
effect
theory.
353,
text”
Id. at
98 S.Ct. at
Such
352.
pregnancy
a
not
women disabled as
result of
do
proceedings would,
course,
further
of
be mean-
benefits,”
“simply
em-
or
because an
receive
ployer’s disability
ingless if that
could be resolved
the
on
issue
plan is
than
benefits
less
pleadings.
at
97
409
all-inclusive.”
Id.
S.Ct. at
question presented
7. The central
to and
(emphasis added).
proof
decided
to
con-
Absent
the
Supreme
the
Court
then,
in Palmer was
employer’s
compen-
whether
trary,
to
an
failure
illicit motivation alone could render
pregnan-
otherwise
women
risk of
sate
cy-related
for the additional
constitutionally
valid official action
invalid.
destroy
not
the
disabilities -“does
Appeals
The Court of
rejected
Fifth
for the
Circuit had
presumed parity
.
of
.
.
the benefits
pools
the contention that “since
facially
the
in-
evenhanded
which results from the
part
had been
139,
closed either in whole or in
to
of
Id. at
97 S.Ct. at
clusion
(emphasis
risks.”
.
desegregation
city
avoid
import
council’s
original).
this
action
in
of
The clear
equal protection
was a denial of
discriminatory
finding
laws.”
language
a
is that
of
Supreme
U.S. at
Lastly, may point one fact brought challenged “policy” disadvantaged, the effects of the could not be women, concept of dis- upon not fall as did within the confines of the exclusively do criminatory question Geduldig, but affect as effect? To state those Gilbert or it, child-rearing responsibilities. almost to answer and to answer it well men with This, however, negative. nature of the For if actions of this nature were very is in the proceed subject ground, to dismissal on this plaintiffs which theory given range a wide upon disparate Government would be Challenges rely ed. pursue accomplish in which and consequences involve of areas impact inevitably will insuring policy “the mas- state point California in Lau is discussion of this 8. The Court’s tery English pupils in the schools” all instructive: education, bilingual and the authorization “[e]very Appeals reasoned The Court of these state-im- Under continued:] Court starting brings edu- line of his student equality posed treat- standards there is no advantages and dis- career different cational merely by providing with the students ment social, part advantages econom- caused in textbooks, teachers, facilities, and cur- same background, created and con- ic and cultural riculum; students who do not understand for any completely aрart contribu- tinued effectively English foreclosed from are [791], system,” F.2d tion the school meaningful education. may not be so the case 797. Yet in our view 565-66, 94 at 788. 414 U.S. at expressed noting easily decided. [After ends, for students illegal child care services unconstitutional patently attempts re- to establish any possibility opposing all unimpeded by so, been Were this there would have services. view. such ty would have been governmental tory effect. ing of acter and effects there of the no reason clusion ton Heights narrowly proof Arlington Heights compels the con- that, had the for the to have'articulated of invidious On drawn action futile contrary, any requisite concept being equally intent; gesture, of discrimina- discriminato- the necessi- challenged such fair the char- outside Arling- proof read- of their have acted trary goal of substantial equal Defendants’ actions [*] educational providing actions is j}: [*] knowing that the direct effect numbers of women. completely . [*] [*] education. opportunities exclude or burden ij« [*] unrelated denying Defendants j{< [*] are arbi- women [*] shown, challenged deci- ry intent been defendants policy, their child care By This is have been sion would invalidated. access to edu- denying equal women so, believe, we in this case. likewise invidiously discriminating and are cation they rep- the class III. in violation of resent on basis of sex
Equal Protection rights equal protection noted, in Wash already the decisions As law. *13 Davis, supra, ington noted that “an The Court has Heights Arlington and discriminatory purpose may often invidious Housing Development Metropolitan the totality be inferred from of the relevant 252, 97 Corp., supra, 429 U.S. S.Ct. Davis, supra, facts.” 426 U.S. that official ac make clear L.Ed.2d primacy at 2048. The or exclusiveness face, not be held tion, on its will neutral purpose proved. not be of an invidious need Equal Clause Protection violative opinion Arlington Justice Powell’s racially dis it results in a simply because case makes Heights this clear: fortiori, the alle impact. A proportionate require plaintiff Davis does a impact sexually disproportionate of a gation prove that the challenged action rested alone, to state here, standing insufficient solely racially on discriminatory purposes. plain Had the Constitution. a violation of Rarely can it be legislature said that a allegation themselves to an restricted tiffs administrative body operating under a therefore, impact, the dismissal disparate broad mandate made a decision motivat- would have equal protection claim of their concern, solely by single ed a or even that proper. been particular purpose a was the “dominant” however, fairly be complaint, cannot “primary” fact, one. In it is because assert- so limited. addition to viewed as legislators and proper- administrators are ac- ing unequal effect of defendants’ ly balancing concerned with numerous tions, have a course of plaintiffs competing re- considerations that courts in- susceptible of an conduct defendants frain from reviewing the merits of their of intentional discrimination: ference decisions, absent showing a of arbitrari- resulted Knowing that their actions or irrationality. ness But racial discrimi- education, being women denied access just competing nation is not another con- poli- intentionally continued a defendants sideration. When proof there is a attempts all thwarting cy practice and has been moti- purpose and the plaintiffs provide child care to decision, vating factor in they represent. class justified. deference is no longer
[*]
[*]
[*]
[*]
[*]
[*]
429 U.S.
265-66,
at 563.
practice
Determining
policy
Defendants have
whether invidious discrimi-
refusing
recognize
natory purpose
motivating
the need for
was a
factor de-
.inquiry
mands a “sensitive
into such cir-
spects,
promoted
defendants’ actions
no le-
cumstantial and direct evidence of intent as
gitimate state
completely
interest and were
266, 97
may be available.” Id. at
S.Ct. at without rational basis. While these allega-
Arlington Heights sug-
564. The
may prove
entirely
tions
to be
conclusory,
evidentiary
rel-
gested a number of
sources
plaintiffs are entitled to an opportunity to
determination,
including the
evant
to this
present specific
support.
facts in their
See
pattern”
existence of a “clear
unexplainable
56(e).
Fed.R.Civ.P.
discrimination,
grounds
other than
In the event that
are suc
decision,
background
historical
cessful on
making
remand in
a threshold
leading up to
“specific sequence of events”
showing of discriminatory purpose, it will
action,
challenged
“departures”
necessary
inju
to determine whether the
sequences and
procedural
from the normal
ries they
may
claim
fairly be attributed to
policies.
substantive
Id. at
its improper consideration. We refer to the
Indeed,
impact
of the official ac-
“causation,”
test of
enunciated
tion, while not the “sole touchstone” of an Supreme Court in
Healthy City
Mt.
Board
discrimination,
not irrelevant to
invidious
Doyle,
Education v.
intent,
question
may provide
L.Ed.2d 471
appli
important
starting point.
Id. at
test,
cation of this
well
S.Ct. 555.
key
to an ultimate solution of this liti
gation,
is explained in the Arlington
It is
easy
not an
matter
to state
Heights
decided the
day:
same
just what would constitute an “invidious
Proof that
Village
decision
purpose” in the context of this case. The
was motivated in
part by
racially dis-
sex-discriminatory
search for
motivation
criminatory purpose would not necessari-
cannot halt
upon a demonstrated
ly
required
invalidation of the chal-
misogyny.
absence of manifest
On the oth
lenged
would,
decision.
proof
Such
how-
hand,
inappropriate
er
it would be
and un
ever, have
Village
shifted to the
the bur-
attempt
probe
wise for the
courts
den of establishing that the same decision
thought processes
every
decision-maker
*14
would have resulted even had
imper-
legislative
responsi
with
administrative
missible purpose not been
.
considered.
If
Precisely
bilities for traces of sexual bias.
established,
this were
the complaining
where, between these two untenable ex
party in a case of this
longer
kind no
tremes,
judicial
proper
level of
sensitivi
fairly could
injury
attribute
com-
rest,
ty is reached is a matter which must
plained of to improper consideration of a
instance,
the first
upon
analysis
discriminatory purpose.
In such circum-
discernment
Judge
which
District
stances,
there
justification
would be no
brings to
bear
the controverted facts.9
interference with the chal-
early
litiga
It is too
in the course of this
lenged decision.
tion,
then,
whether
the de
determine
n.21,
at 270
566 n.21.
fendants’ conduct was free from discrimina
inquiry” man
tory purpose. The “sensitive
IV.
Supreme
Arlington
dated
Title IX
satisfactorily
undertaken
Heights cannot
on
While it is not clear
poses
a motion to dismiss.
Plaintiffs’ Title IX claim
sev
on the
“scrutiny”
applicable
questions.
what level of
eral
We are met
difficult
at the
case,10
novel facts of this
we cannot disre
question
outset with the
of whether Title
that,
in some re-
gard plaintiffs’ assertion
supplies plaintiffs
rights
IX
any
with
3, supra,
9. The cases cited in note
shed some
nonsuspect
alleged-
anee
where
classification
light
ly operates
on factors
to a
disadvantaged
relevant
determination
to the detriment of a
impermissible sex-discriminatory
purpose.
group. Berkelman v. San Francisco Unified
Dist.,
(9th
School
501 F.2d
Cir.
that neither
This Court has noted
“strict”
10.
1974).
scrutiny provides
guid-
useful
nor “minimal”
question of
Amendments of 1972. The
for the
Appeals
The Court
may enforce.
lay di
of action
implied right
whether an
recently concluded
Circuit
Seventh
of Title VI was
rectly
provisions
under the
action was intended
right of
private
Supreme
decided
presented
to or
of Title IX
its enactment
Congress in
Court,
was
because state action
presumably
may
judicially
right
that no such
pleaded.
was
A num
involved
§
University
Chicago,
Cannon
inferred.
have also entertained
ber of lower courts
However,
impor-
one
559 F.2d
Title VI in the context
private claims under
renders
the case at bar
tant difference
actions.14
§
authority
significance.
of limited
Cannon an
relationship
Given the close
between Title
upon a section
is based
present
action
VI
IX
and Title
and the
Court’s
1871, Rights Act of
U.S.C.
of the Civil
Lau,
decision in
we conclude that
it would
plaintiff in Cannon also
While the
§
deny plaintiffs
be anomalous to
here the
statute,
Circuit
Seventh
invoked
right to raise asserted violations of Title IX
ingredi
action
requisite
state
held that
of their
1983 action. Ac-
context
§
absent,
against a
being
her suit
ent
cordingly,
proceed
question
we
contrast,
university.
private
whether
their allegations
respect
clearly consti
of defendants here
conduct
those asserted violations are
sufficient
consequent availa
action. The
tutes state
law to withstand a motion to dismiss.
1983, indepen
under
bility of an action
§
right of action
any implied private
dent of
The District Court based its dismissal of
IX,
question
with a
confronts us
under Title
ground
the Title IX claim on the
namely,
court:
by the Cannon
not reached
specific program
where no
or service is
IX to be read as establish
whether Title
offered to either men or women no dis-
by way
be vindicated
right
ing
occurred,
crimination under Title IX has
Although
we
under
of an action
§
program
even if the lack of such a
authority
find
unable to
have been
service
disproportionate
has a
impact
the answer
directly
point,
we believe
upon women. Congress never intended
in the affirmative.11
must be
operate
require
Title IX
the af-
in Cannon distin
Circuit
The Seventh
development
firmative
previously
non-
Nichols, supra, 414 U.S.
guished Lau v.
existent educational services.
If we were
ground
on the
accept plaintiffs’ premise,
the inevita-
the au
brought under
Lau had been
ble
judicially-imposed
result would be
F.2d at
1983.12 559
thority of 42 U.S.C.
every
child care services in
community
seen,
Lau, we have
(on rehearing).
college
already providing
district not
сlaim of discrimination
Congress
involved a
them. Had
intended such a re-
sult,
Rights
Act of
undoubtedly
Title VI of
Civil
we would
have a specif-
*15
supplied the
seq.,13
effect,
et
which
ic
probably
2000d
mandate to that
U.S.C.
cou-
§
Act
pled
provisions
Title IX of the Education
with
funding.
model for
for Federal
Bakke,
Supreme
supra
However,
County.
women in San
The
Court
note
Mateo
Lau,
question
citing
purpose
of
class
assumed
of that
certification was not reached
by
respondent
private right
District
case
had a
of
Court.
Rights
action under Title VI of the Civil
Act of
VI,
2000d, reads,
13. Title
§
U.S.C.
rele-
at-,
42 U.S.C.
2000d.
-U.S.
§
part:
vant
S.Ct. 2733.
shall,
person in
No
the United States
on the
distinguished
also
Lau
12. The Seventh Circuit
race, color,
ground
origin,
of
or national
ground that
in-
and other cases on the
in,
participation
excluded from
be denied the
“attempts
deprive large groups
volved
of
of,
subjected
benefits
or be
to discrimination
right
equal
educational
minorities of
any program
activity receiving
under
or
Fed-
opportunities,” 559 F.2d at
whereas Can-
eral financial assistance.
alleging
by
single person
an
non was a suit
cases,
14. For some of these
see footnote 5 to
on sex.
individual act of discrimination based
Cannon,
opinion
rehearing
on
F.2d
ostensibly apply to
The same distinction would
present
brought
as a class
which
allegedly
large
action
numbers of
behalf of
Congress
logically
What
more
intended
very
process
recent
now in full
vintage and
when it enacted Title IX was that all
noted,
development.
of
As we have
programs and services offered be made
a standard
employed
Court
equally available to members of both sex-
stringent
less
than intentional discrimina
tion,
es.
purpose
determining
at least for the
of
however,
reasoning,
prima
whether a
facie case has been estab
line of
general
This
lished,
de
the considerations
under statutes
similar to Title IX.16
seems foreclosed
ante.
II,
The abstract
expect
guid
It
is reasonable to
additional
veloped in section
successfully
the claims
ance from
during
between
that Court
the further
similarities
those
in Lau and other
cases and
development
litigation
of
urged
of this nature.
striking to allow the
too
We limit
present purposes
here are
ourselves for
We are
that,
to stand.
concluding
just
of these claims
dismissal
as intentional discrimi
findings of
reluctant,
any
in the absence
nation under
the Equal Protection Clause
respect
fact,
out,
with
to formulate conclusions
cannоt be ruled
it cannot be said as a
conduct or
any particular
matter
legality
to the
of law that
would be enti
applied
upon proof
a standard to
tled to no relief under Title IX
promulgate
statute,
legislative
of their allegations.
IX cases. The
Title
published
history,
regulations
and the
V.
Health,
Education
Department
Standing to Sue
not,
to its mandate
pursuant
Welfare
matter.15
unfortunately,
conclusive
The defendants
have challenged
is of
general
in this
area
jurisprudence
plaintiffs’
standing to sue. There are
relevant,
1681(b),
arguably
suggest,
Depart-
15. 20
while
U.S.C.
invitation extended to the
Health,
dispositive:
par-
is not
ment of
Education and Welfare to
ticipate
perhaps prove
(a)
as amicus curiae could
Nothing
in subsection
contained
useful to the
require any
resolution of the case.
interpreted
section shall be
grant preferential
educational
institution to
16. The Court indicated that this
sowas
disparate
members of one
or
treatment to the
Rights
Title VII of the Civil
Act of 1964 in
may
sex on account of an imbalance
Griggs, supra,
respect
total number or
exist with
percentage
to the
854,
four
alleged a
in-
“particularized
have
plaintiffs
action,
of
one
At
this
of
the commencement
denial
access to
namely, the
of their
jury,”
them,
Cruz,
prospective high
La
education;
De
injury
this
asserted to
higher
any
in
not then enrolled
graduate
demonstrably
school
re-
“concretely
have
District,
go
wishing
but
to
to
college
action[s]”;
of
from defendants’
sulted]
other
some
time.17 The
college at
future
injury
by
alleged would be “redressed
in
presently
are
students
plaintiffs
three
1349.
remedy
Id. at
sought.”
Consequently,
of the District.
colleges
any
have not become
grievances
plaintiffs’
causal
suggest that
there is no
defendants
to them because
palpable or distinct
less
any
of
relationship
policy
between
action or
expect
go
to col-
college
attend
to
they
lack
plaintiffs’ alleged
and the
District
have
nor does the fact
that several
lege,
opportunities.
appropriate
educational
arrangements
of
the care
temporary
for
made
runs,
plaintiffs,
argument
Since the
the case
eliminate from
of their children
college
have not been denied a
education
they
alleged burdens and uncertainties
any
of
college
access
education because
challenged
to suffer as
result of the
claim
failure of
District
child-care
Consequently, we conclude that
policy.
facilities, they
suffering
deprivation
are
standing to
deprived
are not
of
sue.
they
rights
cognizable injury.
nor
legally
standing
The motion
dismiss
lack of
VI.
Cоurt,
passed upon by
was not
the District
We are not unmindful of the de
jurisdiction
our
since
the case
decide
apprehension
fendants’
usurpa
is implicated we
constrained to consider
are
tion
the District’s
suggest
functions. We
it.
this
premature.
alarm
It is
governing
standard is clear:
easy to
practical
overstate the
effects of an
ruling on a motion
purposes
For
ultimate
decision
favor
plaintiffs
standing,
for want of
both
dismiss
action;
effects,
this
nor would such
stand
accept as
must
reviewing
trial and
courts
alone,
ing
necessarily warrant
the denial of
allegations
com-
material
true all
sure,
To
relief.
federal courts must
complaint
and must
plaint,
construe
great
show
deference to local democratic
of the complaining party.
favor
processes and refrain in most
instances
Seldin,
490, 501,
Warth
422
v.
U.S.
interfering
decisions
school
(1975).
343
L.Ed.2d
authorities.
Epperson Arkansas,
See
v.
97, 104,
266,
U.S.
18. These recent lecture ciary: reluctant to ities of the tion” respect [T]he attest intended for render not to the affairs branches with a constitutional Such controversy” diciary of the French ville: criticize intrusion Bill of er. arrogation the both Thus, cation of openness the issues therefore, outcome show acts and decisions of the coordinate of circumstances deference to ceived notion or Yet, Thus, will. obliged judge a case. The political tion connected and denial of [T]he government part Constitution, The authors of inappropriate self-imposedrestraints as proper federal courts have doctrine, ****** [*] he cannot refuse these doctrines interdict, Rights that he is called impotent to restrain points for these He American the federal courts for fail to of mind and a of the case. While a refusal to doctrinal improper, constitutional issues solely arena judges justice. governmental institutions. judiciary’s intervene [*] other with the government these or deference legislative judiciary’s doctrine, and its occasional involved, power have been a member historian, and the the exercise recognize venerable on the independently unconstitutional at whichever Judge [*] branches of philosophy intrusion and judicial and unworkable. legislative approach power the Constitution in the affairs a blind interests of the any mandate. law serve role as defender but from to and to decide it and executive willingness not with particular [*] abstention is recognition result not from of the federal Alexis de that, other doctrines traditionally been well stated principles. brought into the only “political ques- this the federal and executive respect political the “cаse regarding [*] because to resolve in the words government. intrusion requires an any precon interpreting extreme, is Those who compliance occasional unyielding and activ- without a action facts to decide branches his own restrain, doctrine Tocque- parties, [*] Adjudi of and for the of the action never ques- pow- judi- in a he is and ju- is, 19. [T]he Hon. Frank M. Judiciary 468-69 Johnson, supra (footnotes is condemned. tremely tection the True to its constitutional ent has looked more eral law. The new awareness of fected and has, courts and protections courts employment opportunities; sion, treatment; eral unwaveringly, adjudicating safe and decent environment. committed sons protection, and environmental in such areas as judiciary. justice, freedoms of the there have been in our awareness for all Americans. Congress gress shift in and this concern are reflected Speaking through responsibility goal Government, During judicial upon rights part legislative persons in the finest tradition of judiciary judiciary in the area of constitutional (1977) (footnotes omitted). and women to has made clear # repeatedly property rights past by government for the to extend and to With active emphasis in constitutional accomplished omitted). of the states government programs has enacted social general of, abdication and mentally of and concern and incarcerated several decades equality [*] in our afforded Respect among note Johnson, Jr., The Role of the past guarantee and branches. unconstitutional education, voting, consumer individual. citizenry, called and more to the federal Ga.L.Rev. -f: responded dynamic seeing rights several decades society these ill minimum care many become its desire that to equal 11 Ga.L.Rev. and federal executive controls lies with the expand many instances the [*] imperative, upon society enactments, the Constitution. for the others, the freedoms individual is rights or for ones demonstrating educational Other welfare statutes increasingly This awareness have been ex- and offenders cautiously equally organized [*] reality and to all involuntarily and legal profes- conduct on for the fed- protection. black rights and upholding Branches at 462-63 litigation services, freedom, growing depend- salutary the fed- [*] . federal groups federal to and steady rights. to be Con- to a pro- per- and and Bar af- *18 dollars, doubt that numerous with a prospect There can be little of costs that could importance eventually lie under problems twenty of national reach billion dollars ann litigation and that ually.21 the surface of this a first move in an
plaintiffs made have adopt defendants to compel effort to While we must assume that the defend- implications for the policy having pervasive ants adopt have failed to policy advo- The briefs submitted community large. cated plaintiffs and have declined to may While it amici curiae attest to this. undertake particular services plaintiffs are disadvan- be true that plaintiffs desire, we have no way to rearing of child taged the burdens discern the true factual posi- basis for their education, college pursuit their this tion. We note that the plaintiffs, in addi- comparable to a hardship appears wide tion to requesting relief, affirmative also afflicting many oth- spectrum of conditions seek prohibitory relief practices population, er members of the student such such as the refusal accept funds or to impediments sight, hearing, as acute allow space vacant to be private used for margin a narrow of economic mobility and centers, child care which would not neces- to be self-sufficiency requiring students sarily require expenditures District or the wage attending college. earners while commitment of District time. There are very to the problems go These are which many plaintiffs’ facets to the allegations organization core of our societal and which a thorough examination of the economic, social, profound affect and cul- facts can properly illuminate the issues. Surely preroga- tural it is values. tive of the judiciary to undertake reso- We of course intimate no views whatever problems, lution of these nor to review the on the merits of the claims asserted or on legislative wisdom of ef- and administrative propriety of any particular form of re- forts in that direction. lief if those prove claims meritorious. Nor do we opinion intend our to be read as magazine recently report A national foreclosing any grounds for the termination objec ed that a focal while it has become prior this ease beyond trial those ex- among tive most feminist leaders to tailor plicitly considered herein. Conceivably, the goals working to the needs of both devеlopment and refinement of the issues homemakers, they women and have so far prior to trial justify well the District failed widespread support to obtain Court in concluding, by way of summary facility help many child care —a that would judgment, Fed.R.Civ.P. that a trial of problem juggling women with the moth one or more plaintiffs’ claims would work, mother presumably, erhood and be futile and therefore unnecessary. What major college hood and credits.20 One say we do unreservedly, however, is that public funding source of resistance this case cannot be resolved a con- magnitude child care centers has been struction of pleadings. of a 1971 of the costs involved. In his veto bill, Sess., Cong., S. 92nd 1st
would child care provided judgment have extensive of the District Court President reversed and the case is government expense, facilities at remanded for fur- ther proceedings consonant proposed legislation opin- Nixon with this noted ion. contemplated two billion expenditure Newsweek, 28, 1977, year spending roughly now Nov. 1.5 billion dollars a at 63. jump on child care and that cost could 46,057 Cong.Rec. (daily 21. ed. Dec. annually about 25 billion dollars if all the 1971). nationally publica- Another distributed granted. wishes of child care activists were reported tion government Time, the Federal Dec. at 25. I
WALLACE, Judge, dissenting:1 Circuit failed to state claim appellants the other De Cruz and La allege any *19 have act they because failed the to as (hereinafter referred this case the meaning within the of “discrimination” officers of the certain plaintiffs) claim that to that word. Un- Supreme attaches Court Community College District Mateo San alleged to have en- til the defendants defendants) discriminated have (hereinafter has gaged in conduct refusing by the basis of sex against them on effects, either the cause of action under no approve or the establishment to initiate § or 20 U.S.C. Fourteenth Amendment fe- which would benefit day facilities care them, (Title IX) been stated has re- child-rearing college students with male alleged that the this is so even if it have the district They asked sponsibilities. by motivated sexu- conduct was defendants’ to vote or defendants court to order the I can find discriminatory intent. ally Since in contrary what have done decide allegation of discrimi- complaint the no in the issue so that desired past the on this properly un- natory as the term is effects in promptly will set day facilities care derstood, judgment of I conclude that the operation. be affirmed. the district court should acknowledges that serious majority The The district that judge concluded since judi for role of the federal implications the the have defendants offered child-care to mandate ciary when we undertake arise whatsoever, program impossible it for by the portrayed the ills solutions to social respect them have discriminated with feels majority nevertheless plaintiffs. rejects program. majority such a this plaintiffs to allow the constrained Nonetheless, an conclusion. examination of action, apparently anchoring cause of bearing the decisions of the Court there the courts will not hopes that federal concept “discrimination” con- the for regrettably enmeshed the become that, vinces Court understands me as the policy on its mulation of local educational term, nothing sex approaching the discrimi- victory plain for the belief that ultimate alleged nation been here. has tiffs the merits never be realized on that, is, granted may relief some if I can appropriately
how be
circumscribed.
II
join
is in
majority,
for I believe it
Clause and
Equal Protection
Since the
less
of the cause of action no
allowance
merely
statutes
contemporary
rights
civil
relief
than in the administration
concept of “dis-
upon the
employ
rely
sought
judici
of the federal
power
that
it, see
crimination,”
not define
Gen-
but do
governing
invoked and
ary
wrongfully
Gilbert,
429 U.S.
Elec.
eral
Co.
respectfully
I therefore
law misconstrued.
(1976),
our most
cluded
such un-
der
program
this insurance
becomes clear
As there is no proof
package
that
The
upon
cursory analysis.
pro-
the most
in fact worth
more men than to wom-
gram
into
potential recipients
divides
two
en,
impossible
it is
any gender-
find
nonpreg-
groups pregnant women and
—
based discriminatory effect in this scheme
persons.
group
nant
While the first
simply because women disabled as a re-
female,
exclusively
the second includes
sult of pregnancy
benefits;
not
do
receive
members of both sexes.
say,
that
is to
gender-based discrimina-
Id.,
20,
at 497 n.
at
S.Ct.
tion does not
simply
result
because an
employer’s disability
plan
benefits
is less
The
explicated
Geduldig
Court
holding
than all-inclusive.
subsequent
case General Elec. Co.
Gilbert,
125,
401,
supra, 429 U.S.
138-39,
Id. at
(footnote
equal protection [Geduldig] claim the existence effect pregnancy cov- is to exclusion determined the relative value to Rights “discriminatory iden- Act of effect” idea is often exist under Title VII of Civil 2000e, Co., even if shown to Griggs 42 U.S.C. not tified Power v. Duke (1971), purposeful. where held can it was discrimination actionable Manhart, Id. included benefits. sexes of the the two exists, there set of value L.Ed.2d 657 Court long equality
As “simple discrimination. forth what it termed a test” for the no sex been of sex discrimination: “whether existence Satty, 434 Nashville Gas Co. person evidence shows ‘treatment of a (1977), further L.Ed.2d 356 person’s in a manner which but for the sex to the respect With analysis. develops ” (footnote would be different.’ Id. at 1377 from an benefits pregnancy exclusion omitted). not cast in While that test in that plan employer’s insurance or the terms of the exclusion of benefits in Ged its conclusion merely restated burdens, imposition closеly it seems akin gender- not a that this “is uldig and Gilbert inquiries effect 144, 98 at all.” Id. at based discrimination Geduldig, Satty; made in Gilbert and However, did find the Court at 352. discrimination, testing for it is what is actu- female occur when does that discrimination counts, person to a ally done leave maternity returning from employees been done. might what accumulat previously of their deprived discrimination, finding seniority. ed extent have been To the considered distinc turns on the explained, the Court far, important teach two thus these cases and a burden: a benefit tion between The first is under either the lessons. has not petitioner (as Geduldig) Here . . . Fourteenth Amendment *21 to women rights (as to extend in merely refused the civil statutes Gilbert re- and do not Satty) finding that men cannot “it is a of sex-based discrim benefit sub- ceive, on women a trigger but has ination that must . . . imposed finding employment prac men need not suffer. unlawful burden that of an stantial Gilbert, and bur- supra, benefits tice.” General Elec. Co. v. The distinction between We one of semantics. 429 U.S. at at 408. Such dens is more than 703(a)(1) did not that discrimination consist of “either facial held in Gilbert benefits be greater discriminatory that economic discrimination or effect.” require of the other “because paid City Angeles, Dep’t. to one sex or of Los of Water & Manhart, in the scheme of supra, different roles Power v. at 1379 not holding Gilbert). does (interpreting But that n.29 existence.” permit an 703(a)(2) to allow us to read § second, purposes present and for employees female employer to burden contribution of these cases significant, more employ- them of deprive as to way such a concept of the of is a functional definition dif- of their because opportunities ment Discriminatory ef- “discriminatory effect.” role. ferent opportuni- shown if the benefits fect is (citation at 142, 98 S.Ct. Id. are less valuable offered to women ties omitted). footnote in terms offered to men. Stated than those a discrimina- analysis, of the benefit-burden City Los of case in the recent Finally, existing benefits and is shown if tory effect v. and Power Water Dep’t. of Angeles, and Title VII does directly, the Fourteenth Amendment refers quotation from Gilbert 4. This equally not also do so under Title IX. VII; applies it but that to Title indeed, and, VII, Griggs interpreted in Equal Clause Under Title as Protection to the statutes, Co., supra, 401 anti-discrimination Duke Power 849, IX and other Title only in which discriminatory manner apparent from the effect not is closely patterned alone, intent, after analysis may support without reference the Gilbert Geduldig, reasoning finding illegality. but also if Even rule also the virtually tautological only IX, reach, conduct governs point idea I not it is Title need since, can be help discrimination” as shown to be “sex-based of no to the here found sexually forbidding IV, unfair alleged. part text have been no such effects violative Gilbert, reason no There See 429 U.S. at treatment. discriminatory effects what constitutes or withheld in are restricted opportunities apparently applied has approach them less available way as to make such a actions local officials. one sex. But members of many all or Palmer Thompson, by a is not shown discriminatory effect enforced additional benefits to extend refusal mere racial segregation municipal swimming equally available and ones are existing if Jackson, pools in Mississippi pro- had been women; in that to men and valuable hibited by a federal court. Rather than differently being treated not women are desegregate, city pools. closed the men, and vice they were would be so if than Supreme Court held that this closure was versa. beyond the reach Equal of the Protection approach suggest I do not Clause on the same basis that the absence from these taken effect of sex discrimination was in Geduldig found ways necessarily exclusive other cases is and Gilbert: concept should be con can or which the Here the record indicates that Jack- range circum broad Within the sidered. son once ran segregated swimming pools claims of discrimination in which stances public and that pools are now main- arise, test unlikely Moreover, tained by city. there is no sometimes re effects will evidence in this record to show that that dis than quire a different formulation city is now covertly aiding mainte- Geduldig, analyses here. But cussed operation nance and pools which are Gilbert, Satty, Manhart are entirely private It shows no state only. in name case,5 present adequate dispose affecting action blacks differently from Indeed, explain part IV. even I whites. discrimination, where realm of race . issue here is whether [T]he unfair treatment protection Jackson black citizens in being denied Supreme Court height,
long been
*22
accept
majority’s
5. I
complaint
cannot
contention in
tion in the
the value of the
6,
54,
holdings of
currently
provided
footnote
antе at
benefits
the defendants
Geduldig
apply only
facially
actually
nor
greater
Gilbert
to
dis-
is
for men
it
than
is for wom-
criminatory
agree
Geduldig
en,
acts.
I
required by
that neither
as
Gilbert. To measure the
proof
discriminatory
and Gilbert
existing,
foreclosed
value of
assessing
included benefits
Nonetheless, Geduldig contemplated
effect.
impact
the adverse
of excluded benefits would
proof
discrepancy
aggregate
aof
in the
risk
meaningless
render
the Gilbert distinction.
protection
program
derived from the insurance
purposes
analysis,
For
of burden
unlike the
496,
417
at issue.
U.S. at
This it, to recommend natory has much effect treatment one the actual
for it
focuses
Ill
an
discrimi-
hands of
receives at the
it
important
for what
equally
nator.
It is
There
thorny question
remains the
of discrimina-
the definition
excludes from
role of
intent
defining
the decision of a
Although
tory effect.
precise
discrimination.
I believe the
issue
support
initiate
not to
government body
whether,
presented
this case is
program can
or economic
particular
social
absence
facial discrimination or conduct
impact
effect or
to have an
certainly
said
effects,
having discriminatory
in-
improper
beneficiaries,
would be
upon those who
gender-neutral
tent can turn otherwise
be-
impact
effect
say
that such
havior into actionable “discrimination” un-
because a certain
merely
“discriminatory”
der Title IX or the Fourteenth Amendment.
it more
from
benefited
group would have
Gilbert,
Satty
While
Geduldig,
contain
jump
quantum
is a
than others
bearing
problem,
statements
on this
understanding of discrimination.
traditional
language
interpreted by
can best be
a brief
in Gilbert when
recognized
The Court
review of the Court’s earlier treatment of
*23
find discrimination
to
purporting
said that
subject.
this
disability
pregnancy
to add
refusal
nondiscriminatory
As commentators7
at least
benefits to an otherwise
one Su
endanger
observed,
com-
preme
justice8
the
plan “would
Court
the
insurance
unified,
employer
who has
developed
that
a
monsense notion
consist
ently applied
all does
program
respecting
at
doctrine
the
disability
benefits
role of
243,
55,
criminatory
7,
majority
effect.
legislative
O’Brien,
367, 383,
of state and federal
the acts
tutionality of
United States v.
391 U.S.
hand,
it cannot be
1673,
other
88
(1968);
On the
S.Ct.
71 extending relatively narrow identical treatment to us is both The issue before interpret Negroes.” to or whites one,10 unnecessary it Id. making Court in which the all the cases reconcile harmonized, easily Palmer are Davis and motive. legislative the issue of has discussed establish together they clearly and taken the plaintiffs with what We confronted governs From the rule that this case. dis straightforward as portray a rather discriminatory learn that if no Palmer we far the role question, and as as crimination shown, discriminatory effects been in have concerned, I do not legislative of motive is tent cannot affect the constitutional validi principle in distinguishable believe Davis, officials. ty of the decisions of local question thus becomes from Palmer.11 The turn, discriminatory that once teaches Supreme Court de any subsequent whether very intent becomes present,13 effects are holding in Palm cision has undermined course, of important. synthesis, discriminatory is irrelevant er intent discriminatory effects are only it is after nondiscrimina validity to the otherwise intent relevant shown that becomes tory action local officials. validity legislative or administrative act. v. Washington In its recent decision 2040, policies undergird Several fundamental 229, 48
Davis,
96
426
S.Ct.
U.S.
an
Court’s consistent refusal
Supreme Court
invalidate
(1976), the
L.Ed.2d 597
whether
decisions
federal or local
affirmatively
question
officials
swered
solely
proven
must be
because
the motives that
motive
prompted
action under
them. One
the inherent diffi-
to invalidate state
order
culty
determining
evaluating
held
Equal Protection Clause.12
purposes.
futility
discrimination
officials’
Another is the
constitutionally-based
of invalidating
of dis
act
vice
showing
only
not
whose
lies
require a
claims
actors,
effects,
the bad motives of the
since the
also of discrimina
criminatory
repeated
act could
suggesting
cov-
Dicta in Palmer
tory intent.
er
“sanitized” record
motivation.
disap
were
is never relevant
intent
proved.
73
judici-
authority
no
anything
be
whether
in those decisions has al
if there
that
power
exercise of
principle.
lawful
tered
to restrain
this
ary
govern-
the
department
another
The
assert
that
these cases say
purpose
wrong motive or
ment, where a
that a discriminatory motive is sufficient
to
power,
impelled to the exertion
has
make the
“facially
defendants’
neutral”18
may be
power
conferred
abuses of
that
illegal.
argument
conduct
This
stems from
for
remedy
effectual.
The
temporarily
Geduldig,
footnoted comment
in
which
lies,
abuse
the
however,
not in the
this,
in both Gilbert and Satty, in
repeated
functions,
in
authority
its
judicial
suggested
it
the
that
insurance
all,
whom, after
under
people,
in
might
illegal
exclusions
those cases
if
institutions,
placed
must be
reliance
our
that distinctions in
showing
there
“a
were
in
abuses committed
the correction of
volving pregnancy
pretexts
are mere
de
,
power.
a lawful
the exercise of
signed to effect an invidious discrimination
55,
at
24
at 776.16
195
S.Ct.
U.S.
against
the members of one sex or the
20,
other.” 417 U.S. at
n.
496-97
94 S.Ct. at
that,
as
at least
me
clear to
seems
thus
It
accord,
(emphasis added);
2492
Nashville
quasi-
or
administrative,
legislative,
far as
Satty,
Co.
supra,
Gas
v.
434 U.S. at
are
officials
state
and
federal
legislative
347;
Gilbert,
General Elec. Co. v.
98
S.Ct.
to
continues
Court
concerned,
supra,
135,
136,
clusion
benefits
that case
was,
itself,
by
indistinguishable from the
It
apply
principles
remains to
devel-
But,
plans
Geduldig
upheld in
and Gilbert.
oped
present
above to the
case.
In order to
observed,
he
perhaps
plaintiffs could
action,
plaintiffs
state a cause of
must
prove that
the ultimate effect of the em-
allege
at least
conduct
defendants
ployer’s policies, including the pregnancy
which either discriminates
women
exclusion,
compensa-
was to make the total
on its face or has sexually discriminatory
paid to
tion
women less valuable than that
done,
effects.
If
not
additional alle-
paid
so,
to men.
If
would
there
dis- gations
discriminatory
intent have no
criminatory burden,
above,
as discussed
significance.
plaintiffs
able to avoid
would be
complaint
Geduldig
result in
makes no
Although
any
and Gilbert.
reference to
discrimination,
majority
adopt
facial
but merely
did not
Justice Powell’s
lists nine
Satty
rejects
opinion,
nothing
separate
I find
factual events in addition to the
allegations
idea
only
nondiscriminatory
present
that it is
intent.22 For
pur-
Gilbert,
put
As
the Court
it in
“a distinction
bert “not
had .
.
.
failed to establish
prima
plan
might
proving
which on its face is not sex related
none-
facie case
that the
face,
discriminatory
they
Equal
if
theless violate the
Protection Clause
had also
prove
subterfuge
accomplish
any discriminatory
were in fact a
for-
failed to
Id.
effect.”
(footnote omitted).
bidden discrimination.”
429 U.S. at
at 1379
Nowhere does
added).
suggest
prima
might
(emphasis
S.Ct. at 408
Manhart
that a
facie case
discriminatory
have been made out had
also
*20. The mere fact
that conduct discriminates
purpose
proved.
alone been
course,
not,
per
does
make it
se unlawful.
There
valid defenses to
discrimina-
allegations
intent
22. The
tion.
majority’s opinion.
It is not
forth in the
set
alleged
Angeles, Dep’t
City
of Water and
clear to me whether
Los
should
Manhart,
desired that women
supra,
offers
that the defendants
Power
facilities,
Manhart,
day
lack
or
implicit
reading.
from the
care
support
suffer
to this
merely
I
points
plaintiffs in
result.
Gil-
were aware of that
the Court
out that
allegations
trict;
of sex discrimination
I assume all
inference
poses, of
purely of a
in this case. There-
consists
be found
Each event
true.
to be
ap-
in-
fore,
allegations
to initiate
defendants
by the
refusal
arrangements
irrelevant.
day care
tent are
any new
prove
There
approval.
district
require
must
My
defendants
conclusion
to interfere
the defendants
no move
a fortiori from
decisions
prevail follows
existing day care
to restrict
Geduldig, Gilbert,
Satty.
In those
any allegation
is there
Nor
opportunities.
deeply
cases,
had become
the defendants
*28
which,
considered
when
conduct
of other
and
disability
insurance area
involved
decisions, would
care
day
the
together with
benefits
pregnancy
had
from
excluded
access
impairing women’s
have the effect
nearly-comprehensive insurance
otherwise
inher-
making them
college
programs
di-
The
exclusion related
plan.
pregnancy
to wom-
less available
less valuable or
ently
inherently and
a
that
rectly to
condition
that,
they
had
suggestion
no
en. There is
this
exclusively
to women.
pertains
In
men,
have been
plaintiffs would
the
been
contrast,
case,
their
the defendants and
differently.
treated
historically
no in-
have
had
college district
with the
care
day
volvement whatsoever
Gilbert,
Geduldig
in
the
was true
As
child-rearing responsibilities
problem, and
underinclusiveness,
problem solely one
is
pregnan-
than is
are far less gender-specific
analysis of discrimi-
reason the
for that
as
men as well
cy,
some
women.
affecting
in those cases
developed
natory effects
Geduldig,
in
Gil-
pregnancy
If the
exclusion
totally exter-
of a
Because
here.
applicable
discrimination, the
bert,
Satty was not
condition,
independent social
nal and
here
of the
alleged conduct
defendants
that would
personal obstacles
plaintiffs face
certainly
most
not.
to extend a
were
defendants
be eased
presently of-
to those
in addition
benefit
in-
similarly
with Palmer
The contrast
does
But,
explains, this
as Gilbert
fered.
previous-
Palmer,
city had
structive.
In
discriminatоry
“even
a
effect
constitute
not
but on a racial-
swimming pools,
ly operated
im-
though
‘underinclusion’
benefits]
[of
Supreme Court
basis. The
ly segregatéd
responsi-
[child-rearing
as a result of
pacts,
facili-
that
the withdrawal
those
found
gender than
bilities],
heavily
one
more
treatment,
unequal
public
ties
use no
139-40,
97
upon the other.”
U.S.
discrimination,
Here,
resulted.
no
and thus
at 410.
with-
contrast,
have
the defendants
benefits, but
offered
previously
drawn
lengths to cast
go
great
plaintiffs
The
to remain uninvolved
chosen
have
as an affirmative
conduct
the defendants’
had
which
have never
a service with
or even
matter how distasteful
policy. No
however,
connection.
be,
may
reprehensible
“policy”
a
motiva-
than bare
more
nothing
amounts to
Nichols, supra,
also
that Lau v.
It is
clear
discriminatory ef-
act with
until some
tion
does
39 L.Ed.2d
U.S.
alleged.
act is
No such
fects
committed.
Lau,
In
San
result.
require
not
different
integrat-
had been
public schools
suggests
Francisco
complaint
Thus, nothing in the
result,
As a
court decree.
ed
ad-
federal
gender-neutral
than
anything other
who
ancestry
of Chinese
college dis-
2800 students
community
of the
ministration
knowledge
quali-
obvious.
If mere
discriminato-
mental
former
state
believe
satisfy
ry
intent
mean-
were sufficient
effect
within
intent
as
fies
thereby
premium
requirement,
Davis,
would
supra,
U.S. at
Washington
ing
very
Organi-
placed
ignorance
conditions
United Jewish
See
correcting.
complaint’s
Despite
ambi-
Carey,
need
zations
however,
J.,
prepared
guity
respect,
am
I
(1977) (Stewart,
concur-
Carolina,
assume,
opinion,
purposes
for
of this
v. South
ring);
States
United
(three-judge
requisite
al-
(D.S.C.1977)
intent
been
F.Supp.
leged.
court).
this should
reason
The
district
found themselves
English
speak
not
and is not
critical
could
for success in life as is
Supplemental
schools.
English-speaking
grade
high
Securing
school education.
only 1000
were offered
language courses
college
education
more difficult
held
Supreme Court
The
of these students.
when
responsibil-
combined with child-care
failure to
district’s
ities,
the school
but the
defendants
not declared
handicap
overcoming this
that,
means
some
graduate,
order
female students
VI of the Civil
601 of Title
section
violated
with children must eliminate
circum-
2000d
1964, 42 U.S.C.
Rights
Act of
short,
plain-
stance from their
lives.
IX).
Title
model for
was the
(which
tiffs
Lau had a discriminatory burden
them;
imposed upon
plaintiffs
in this
in Lau
factors
which
relevant to
assuming
complaint
even
to be
issue
public
at hand were that
schoоls
true, have not.
were involved and attendance for children
ages
between the
of six and sixteen was
problems
air
of significance
786;
mandatory, 414
about
society
genuinely
should be
Chinese-speaking
students were re-
[and,
concerned.
“But
I
Constitution
quired to attend
English-speaking
believe,
IX,
provide judicial
Title
do]
*29
decree;
schools
federal court
California
remedies
every
for
social and economic ill.”
provided
law
“English shall
the Lindsey Normet,
56, 74,
schools,”
language
basic
instruction in all
(1972).23
am
L.Ed.2d 86
I
un
policy
was
“the
state”
to willing that,
in its
see
eagerness to
English
“mastery
pupils
insure the
all
plaintiffs’
eased,
difficulties
court
788;
schools,”
id. at
S.Ct. at
ignore
should
the historic and constitutional
also stated that candidates for
school
high
protect
boundaries that
the auton
graduation
required
would be
stan-
meet
omy of the states and coordinate branches
proficiency
English.
dards
Id. at
government,
federal
but ultimately
secondary the state was not free very omit which instruction system inherently
success in the depended the minority suddenly students thrust
into it.
Lau is a present far from the
where college
is not mandatory
attendance
vated,
why
possible
I
under
fail to see
If all it
to state a
of action
a host
other
takes
cause
(1)
allegations
proposals might
welfare or
economic
not be
Fourteenth Amendment
subject
acting
judge
if a
color of
au-
creation
federal
someone
state
thority
convinced
defendant
refused
take
action
biased
“judicial
catego-
especially helpful
women.
would
to a
Such
certain
activism” in the name
women,
“equal protection”
ry
persons,
concept
most of whom are
distort
would
beyond
(2)
discriminatorily
recognition..
moti-
refusal
notes
equal protection guarantees,
without
is also
Ballard,
Schlesinger
498, 507,
In
v.
419 U.S.
this case are controlled
merit. The facts of
572, 577,
(1975),
95 S.Ct.
Notes
notes infra. substantial in its made revisions opinion including re- elimination certain respect 2. With to the other issues Nichols, treated Lau liance on 786, majority, agree I do not De La that (1974) (discussed Cruz part IV standing action, to assert this cause of dissent), part and the II of this addition I since believe that at least of the addition, some other opinion. majority With the latter standing, agree do I joins concluding majority now me in entire case should not be dismissed intent to discriminate is insufficient un- alone persuaded private basis. I also am that a ac- der Title IX or the Fourteenth Amendment. proper tion based on Title IX is under 42 U.S.C. Having gone way, majority persists half plead- finding “discrimination” ings position, from I must of this case and guide meaning appropriate erage disability-bene- under California’s of the Supreme the case law Court word is fits was not in itself discrimination plan with the Constitution these dealing sex. based on laws. Aiello, 484, 94 Geduldig v. Appeals The Court of was therefore concluding wrong reasoning pregnancy held the exclusion of Geduldig applicable was not to an ac- disability-benefits plan state-administered a finding tion under Title VII. Since it is not covered work- private employees of sex-based discrimination that must compensation does not men’s “amount[] this, trigger, finding in a case such as