2. Section 1983
In its earlier opinion, the court explained the rule of law that determines whether plaintiffs state a claim under § 1983. Mem. Op. at 17-20. To state a claim for discrimination that is actionable as a constitutional violation, plaintiffs must assert that "the decision maker. . . selected or reaffirmed a particular course of action at least in part because of not merely in spite of its adverse effects upon an identifiable group." Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279, 60 L. Ed. 2d 870, 99 S. Ct. 2282 (1979) (emphasis added).
Plaintiffs make three arguments in support of their allegation that discriminatory purpose was a motivating factor in defendants' actions.
First, plaintiffs argue that defendants' "failure and refusal to quickly and fully embrace a curriculum inclusive of Africans and African Americans is a failure and refusal based on race, and that such failure and refusal is conscious, and therefore, intentional." Id. Second, plaintiffs imply that purposeful discrimination can be inferred from the fact that the New York City Board of Education implemented a Holocaust Curriculum and an Italian Heritage Curriculum, but did not adopt a special curriculum to focus on issues of particular importance to African Americans. Id. at 7. Third, plaintiffs argue that the lack of progress in changing the curriculum since this action was commenced three years ago supports an inference of racially discriminatory intent. Id. at 3.
In response to the first two arguments, to the extent that plaintiffs argue that constitutionally impermissible intentional discrimination may be inferred from (1) the conscious failure to adopt a curriculum that includes more material regarding Africans and African Americans, or (2) defendants' responsiveness to other groups' special needs, their allegations are inadequate to sustain this inference. Plaintiffs have failed to come forward with the specific allegations of fact necessary to sustain the claim that a discriminatory purpose was a motivating factor in any actions taken by defendants -- that is, that the curriculum was adopted because of, not merely in spite of, its allegedly detrimental effects on African American students. In alleging a claim under § 1983 based on a constitutional violation, the "discriminatory purpose" with which a defendant must have acted "implies more than intent as volition or intent as awareness of the consequences." Feeney, 442 U.S. at 279. Although I recognize the thinness of this distinction and the difficulty one could expect to encounter in proving that a school intended such detrimental effects (as opposed to intending to adopt a curriculum, the by-products of which are allegedly detrimental effects), there is no doubt that appellate decisions require plaintiffs to demonstrate that the curriculum was adopted because of its allegedly detrimental effects on African-American students, and not merely with awareness of such effects. See Soberal-Perez v. Heckler, 717 F.2d 36, 42 (2d Cir. 1983) (dismissing constitutional challenge to defendant's failure to provide Spanish language services where plaintiffs alleged that such failure had detrimental effect on Hispanics, but plaintiffs could not "allege in good faith, much less prove, any other evidence of discriminatory intent" other than a legitimate preference for English over all other languages); Lora v. Bd. of Educ., 623 F.2d 248, 250 (2d Cir. 1980) (standing alone, evidence of a foreseeable, detrimental result from an action is not sufficient to establish the requisite discriminatory intent on the part of the school board); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265-66, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977) (absent a clear pattern of state action unexplainable on grounds other than an intent to discriminate on the basis of race, disproportionate impact alone does not establish invidious racial discrimination).
Plaintiffs' third argument is that defendants' alleged inaction since the commencement of this lawsuit establishes discrimination. Notice of a lawsuit may bring the alleged detrimental effects to defendants' attention; however the court may not infer an intent to discriminate from awareness of allegedly detrimental effects alone, for the reasons stated above.
The court must, therefore, again dismiss plaintiffs' claims under § 1983 for failure to adequately allege intentional discrimination.
3. Regulations Implementing Title VI
As noted above, plaintiffs' original complaint alleged a causal relationship between the present New York City public school curriculum and harm to the members of the putative plaintiff class, but did not allege the intent required to state a cause of action pursuant to the Constitution or Title VI.
The court granted plaintiffs leave to plead a claim under the regulations implementing Title VI (the "Regulations") because the Regulations do not require an allegation of discriminatory intent. Mem. Op. at 21. Plaintiffs amended their complaint to allege just such a violation, but, for the following reasons, their claim is not actionable under the Regulations.
As this court explained in its earlier opinion, the Supreme Court acknowledged the existence of a cause of action under the Regulations for claims based on disparate impact, as well as disparate treatment. See Alexander v. Choate, 469 U.S. 287, 293 nn. 8,9, 83 L. Ed. 2d 661, 105 S. Ct. 712 (1985). A recipient of federal financial assistance, such as the New York City Board of Education, may not "provide any service, financial aid, or other benefit to an individual which is different, or is provided in a different manner, from that provided to others under the program" on the basis of race, color, or national origin. 34 C.F.R. § 100.3(b)(1)(ii) (1992).
The complementary, disparate impact provision states that:
A recipient, in determining the types of services,
financial aid or other benefits . . . which will be provided under any such program . . . may not . . . utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin.
Id. at § 100.3(b)(2) (emphasis added). The term "program" is defined to include "any program, project or activity for the provision of services . . . or other benefits to individuals (including education or training. . .) . . . ." Id. at § 100.13(g).
Defendants argue that the factual scenario painted by plaintiffs, even if proven, does not violate § 100.3(b)(2).
Defendants claim that that regulation does not reach the conduct complained of by plaintiffs, because the prohibition against "criteria or methods of administration" that have a racially discriminatory effect does not extend to the regulation of the content of a school's curriculum. State Defs. Mem Opp. at 5-6. Defendants read § 100.3(b)(2) as applying to administrative decisions regarding the allocation of resources and access to programs, but not to the content of curriculum. Id. at 7.
Plaintiffs respond by asserting that "curriculum is a 'method of administration' and its design, implementation and application, when resulting in a discriminatory impact is clearly prohibited" under § 100.3(b)(2). Pl. Mem. Opp. at 11. Plaintiffs alternatively argue that under a regime of compulsory school attendance,
while Plaintiffs are taught that they are inferior, that they and their people have accomplished little to nothing, they are being subjected to . . . treatment [that] is separate and unequal from the treatment Caucasian students are accorded in the same course of instruction.
Id. at 12.
The court's analysis begins with the language of the Regulations and the decisions interpreting that language. A violation of the Regulations is stated when the "criteria or methods of administration" used in determining the types of benefits or services to provide have the effect of discriminating on the basis of race. The Regulations are not violated by proof that the educational services provided by a school system are disproportionately less beneficial to members of one race than another unless the reason for that disparate impact is that the school system selected discernable administrative policies that, although facially neutral, are the functional equivalent of purposeful racial discrimination. See Watson v. Ft. Worth Bank & Trust, 487 U.S. 977, 987, 101 L. Ed. 2d 827, 108 S. Ct. 2777 (1988) (premise of disparate impact approach is that a practice may in operation be "functionally equivalent to intentional discrimination") (plurality opinion).
The court must determine whether, as plaintiffs allege, the selection of an emphasis on European history, for example, constitutes "criteria or methods of administration" actionable under the Regulations. This issue may be resolved by looking at the decisional law interpreting § 100.3(b)(2), the legislative and administrative history of Title VI and comparable statutes, and the present interpretive position of the Office for Civil Rights of the United States Department of Education, the agency responsible for enforcing the provisions of Title VI.
A. Decisional Law
The reported decisions interpreting § 100.3(b)(2) do not address whether the Regulations extend to cover curricular content; rather, these decisions address the propriety of tests and policies to determine admission and placement into school programs. For example, the use of I.Q. tests to identify students to be placed in "dead-end" classes for the educable, mentally retarded violated the Regulations implementing Title VI, because the use of the test resulted in a disproportionately high number of minority students being placed in these classes. See Larry P. v. Riles, 793 F.2d 969, 980, 983 (9th Cir. 1984). Similarly, the practice of achievement grouping of students can be attacked as violating the Regulations under Title VI because the composition of classrooms did not reflect a random population distribution. See Georgia State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985). Also, the practice of permitting each school district to establish its own criteria for determining English proficiency can be attacked as violating Title VI Regulations, because this practice allegedly resulted in a failure to properly identify those in need of language assistance. See Gomez v. Illinois State Board of Education, 811 F.2d 1030, 1044-45 (7th Cir. 1987). More recently, Alabama's practice of requiring a minimum score on the American College Testing Program's ("ACT") examination for admission to undergraduate teacher training programs was found to violate § 100.3(b)(2); there was an insufficient justification for relying on the ACT cut-off score as a "valid measure of the minimal ability necessary to become a competent teacher," and reliance on the score had a disparate impact on African Americans. Groves v. Alabama State Board of Education, 776 F. Supp. 1518, 1530 (M.D.Ala. 1991). In sum, these decisions pertain to admissions and testing policies designed to identify which students are to benefit from school programs; these decisions do not speak directly to the applicability of the Regulations to curriculum choices.
B. Administrative History of Title VI Regulations
Because of the lack of case law on the issues presented here, I asked the parties to submit additional briefs concerning four issues the court deems relevant in ruling on the scope of the Title VI Regulations, including whether any administrative or legislative history offers any further guidance as to what was meant by the phrase "criteria or methods of administration." May 10, 1993 Order.
The scant administrative history of the Regulations, when originally adopted and as amended, does not address the issue of curricular content. See 29 Fed. Reg. 16298-16316 (1964) (original Regulations); 33 Fed. Reg. 4955-56 (1968); 35 Fed. Reg. 11595-96 (1970). The administrative history of the Regulations supports the generally agreed upon proposition that the Regulations require schools to provide students with "the opportunity to obtain the education generally obtained by other students in the system." 33 Fed. Reg. 4956. There is, however, no support in the administrative history of the Regulations implementing Title VI for the proposition that the Regulations extend to overseeing the content of school curricula.
C. Relevance of Regulations Implementing Title IX
Given the dearth of guidance from the administrative history of Title VI, I also asked the parties to address the relevance of the regulations implementing Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq.10 In 1975, when the Department of Education (the "Department")
adopted the final version of regulations implementing Title IX, the Department stated that Title IX "is similar" to Title VI of the Civil Rights Act of 1964 in proscribing discrimination in federally funded schools, "except that Title IX applies to discrimination based on sex," 40 Fed. Reg. 24128 (1975), while Title VI is restricted to race, color and national origin discrimination. Courts have often noted the similarity in purpose and construction of Title VI and Title IX, and have found the Title VI Regulations instructive in interpreting Title IX and its accompanying regulations. See, e.g., Cannon v. University of Chicago, 441 U.S. 677, 694-98, 60 L. Ed. 2d 560, 99 S. Ct. 1946 (1979); Mabry v. State Board of Community Colleges and Occupational Educ., 813 F.2d 311, 317 (10th Cir.), cert. denied, 484 U.S. 849, 98 L. Ed. 2d 104, 108 S. Ct. 148 (1987); Sharif, 709 F. Supp. at 360-61. Likewise, courts have consistently found language of Title IX decisions applicable to Title VI cases. See Chowdhury v. Reading Hospital & Medical Center, 677 F.2d 317, 319 n.2 (3rd Cir. 1982), cert. denied, 463 U.S. 1229, 77 L. Ed. 2d 1411, 103 S. Ct. 3569 (1983); Neighborhood Action Coalition v. City of Canton, 882 F.2d 1012, 1015 (6th Cir. 1989).
The Title IX regulations include the following provision:
Nothing in this Regulation shall be interpreted as requiring or prohibiting or abridging in any way the use of particular textbooks or curricular materials.
34 C.F.R. § 106.42 (1992). This provision did not appear in the original version of the regulations proposed on June 20, 1974. The Department explained in the Federal Register that it made changes to the original proposed regulations in response to comments that it received during 1974. See 40 Fed. Reg. 24128 (1975). Discussing this change, the Department stated:
The last substantive change in Subpart D is the addition of specific exemption of textbooks and curricular materials from the scope of the regulation. The new section explicitly states the Department's position that title IX does not reach the use of textbooks and curricular materials on the basis of their portrayals of individuals in a stereotypic manner or on the basis that they otherwise project discrimination against persons on account of their sex. As stated in the preamble to the proposed regulation, the Department recognizes that sex stereotyping in textbooks and curricular materials is a serious matter. However, the imposition of restrictions in this area would inevitably limit communication and would thrust the Department into the role of Federal censor. There is no evidence in the legislative history that the proscription in title IX against sex discrimination should be interpreted as requiring, prohibiting, or limiting the use of any such material. Normal rules of statutory construction require the Department, wherever possible, to interpret statutory language in such a way as to avoid potential conflicts with the Constitution. Accordingly the Department has construed title IX as not reaching textbooks and curricular materials on the ground that to follow another interpretation might place the Department in a position of limiting free expression in violation of the First Amendment.
Id., at 24135 (emphasis added). The Department took this position after receiving comments both in favor of and against the inclusion of textbooks and curricular materials within the scope of the Title IX regulations. See id. The Department has thus chosen to interpret Title IX as not extending to such claims when gender discrimination is alleged. The First Amendment concerns cited by the Department for its position would appear equally applicable to Title VI claims where racial discrimination is alleged.
I also invited the Department of Education to submit an amicus brief articulating its position on the applicability of the Title VI Regulations to plaintiffs' claims.
May 18, 1993 Request for the Filing of a Brief, as Amicus Curiae. The Department responded by a letter to the court dated July 23, 1993 from Ms. Paula Kuebler, Regional Civil Rights Director, Region II, Office for Civil Rights, United States Department of Education ("Department Letter") (attached as Appendix A to this Opinion and Order). In its letter, the Department stated its position that in enforcing Title VI, it has
on occasion, intervened in what may be fairly described as curriculum matters. In all such cases, however, the formal concern of the Department has been in ensuring equality of access to what was being taught, rather than with the intrinsic content or purpose of the instruction.