Association of Mexican-American Educators v. California

Related Cases

GOULD, Circuit Judge,

concurring in part and dissenting1 in part:

I

I concur in Parts II, III, and IV of the majority’s opinion, and in the judgment. I write separately, however, to dissent from Part I and to express my view to the contrary that Title VII does not apply to the CBEST. The majority extends the reach of Title VII far beyond what Congress intended and in so doing creates potential mischief for all of our states.2

II

Section 703(a)(1) of Title VII provides, in relevant part:

(a) It shall be an unlawful employment practice for an employer-
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment....

42 U.S.C. § 2000e-2(a)(l).

A natural reading of this section suggests that the “individual” it references is a potential, current, or past employee of the employer. That is the typical Title VII case. See, e.g., Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998); Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993); Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 107 S.Ct. 367, 93 L.Ed.2d 305 (1986); Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).

However, in a line of cases beginning with Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C.Cir.1973), many courts — including this one — have extended Title VII liability to employers who dis-eriminatorily interfere with an individual’s employment relationship with a third party. See id. at 1341; see also Gomez v. Alexian Bros. Hosp., 698 F.2d 1019, 1021 (9th Cir.1983). To extend Title VII’s reach in this way requires not only an unnatural reading of the statute, but also a dubious inference about Congress’ intent in enacting it. If Congress had intended to create liability for interference with third-party employment relationships, *604there is no discernable reason why it would have limited that liability to “employers,” as defined in Title VII. See, e.g., Ehret v. Louisiana, 862 F.Supp. 1546, 1550 (E.D.La.1992) (voluntary association of river pilots that interfered with third party employment relationship not subject to Sibley liability because it was not an “employer”). As the Seventh Circuit has noted:

It might be a good idea to impose liability on those who aid or abet violations of [anti-discrimination laws such as Title VII], but what sense would it make to confine that liability to persons or firms that happen to be employers? Since it would make very little sense that we can see, ... we find it implausible to impute to Congress an intention to create, by language not at all suggestive of any such intention, aider and abettor liability of one employer to the employees of another employer.

EEOC v. Illinois, 69 F.3d 167, 169 (7th Cir.1995).3

This interpretation of the statute under Sibley and Gomez when applied to private employers at least advances the purpose of Title VII to eradicate discrimination in the workplace, and is consistent with the general directive that courts construe the statute broadly to effectuate that purpose. See Duffield v. Robertson Stephens & Co., 144 F.3d 1182, 1192 (9th Cir.1998).

Ill

The same cannot be said, however, of the majority’s further extension of Title VII to impose indirect liability on the State of California.4 The Supreme Court repeatedly has admonished that, absent a clear expression of congressional intent, courts must not interpret federal statutes as creating “in-roads by implication on state authority” to exercise what have historically been state police powers. Palmer v. Massachusetts, 308 U.S. 79, 84, 60 S.Ct. 34, 84 L.Ed. 93 (1939); see also Will v. Michigan Dep’t of State Police, 491 U.S. 58, 65, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Numerous courts have recognized that Sibley’s liberal reading of the statute cannot extend Title VII liability to states that, in the course of exercising their police powers in good faith, may indirectly affect employment prospects. In Haddock v. Board of Dental Examiners, 777 F.2d 462 (9th Cir.1985), for example, this court correctly observed that there is no evidence that when Congress amended Title VII to apply to state governments, it “intended to benefit anyone other than those actually employed by state governments or their subdivisions.” Id. at 464 (emphasis added). We thus held that Title VII did not apply to the licensing activities of the California State Board of Dental Examiners. See id. Virtually all other courts to have considered Title VII’s possible application to state licensing activities and to other exercises of traditional police powers have reached the same conclusion. See, e.g., Fields v. Hallsville Indep. Sch. Dist., 906 F.2d 1017, 1020 (5th Cir.1990); George v. New Jersey Bd. of Veterinary Med. Exam’rs, 794 F.2d 113, 114 (3d Cir.1986); United States v. New York State *605Dep’t of Motor Vehicles, 82 F.Supp.2d 42, 51 (E.D.N.Y.2000); National Org. of Women v. Waterfront Comm’n of New York Harbor, 468 F.Supp. 317, 320 (S.D.N.Y.1979); see also EEOC v. Illinois, 69 F.3d at 171 (because state regulation of teaching, even though pervasive, is exercise of police powers, Sibley liability does not apply).

The majority’s holding in Part I.A strays from these cases and is inconsistent with the Supreme Court’s controlling law and mandate on which they rest. It also creates a striking conflict among the circuits on an issue of importance to our states, is discordant with basic principles of federalism, and is unworkable in practice.

A

The Supreme Court has consistently held that the establishment and regulation of a public school system lies at the core of a state’s historic police powers; it is quintessentially a governmental, not a proprietary function. See Wisconsin v. Yoder, 406 U.S. 205, 213, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (“Providing public schools ranks at the very apex of the function of a State.”); Hadley v. Junior College Dist., 397 U.S. 50, 56, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970) (“Education has traditionally been a vital governmental function.”); Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968) (“[Pjublic education in our Nation is committed to the control of state and local authorities.”).

Because California regulates teaching pursuant to its police power, we should read Title VII as imposing liability on such regulation only if congressional intent to do so is clear. See United States v. Lopez, 514 U.S. 549, 580-81, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (“[Ejducation is a traditional concern of the States.... In these circumstances, we have a particular duty to ensure that the federal-state balance is not destroyed. We start with the assumption that the historic police powers of the States are not displaced by a federal statute unless that was the clear and manifest purpose of Congress.”) (Kennedy, J., concurring; citations and quotations omitted). As noted above, evidence of such an intent is far from clear. In fact, as this court recognized in Haddock, it is entirely absent. Courts have no business imputing to Congress an intent that Title VIPs specific terms reach the sort of regulatory activities at issue in this case.

The majority turns away from this necessary conclusion by taking two routes to error. First, it argues that “[tjhere is no overarching ‘licensing’ exception to Title VII,” and “the state’s high level of involvement in all areas of local public schools distinguishes this case” from the licencing cases cited above. This argument misper-ceives the issue and misapprehends applicable law. The rationale underlying the licensing eases has little to do with the extent of the state’s involvement in the regulated activity, as the majority asserts, and everything to do with the principle that courts should not lightly infer a congressional intent to regulate in areas of peculiarly state concern. See, e.g., New York State Dep’t of Motor Vehicles, 82 F.Supp.2d. at 51.

Both the United States Supreme Court and the California Supreme Court recognize that the establishment and control of public schools is a peculiarly governmental function. See Lopez, 514 U.S. at 580-81, 115 S.Ct. 1624; Butt v. State, 4 Cal.4th 668, 685, 689, 15 Cal.Rptr.2d 480, 842 P.2d 1240, 1248, 1250 (1992). That California’s regulation of public schools is pervasive does not convert that activity from a governmental exercise of police power into a proprietary activity. Rather, California’s pervasive regulation of public schools is the result of the state constitution’s requirement that the state ensure equality of educational opportunity. See generally Butt, supra. The degree of regulation that California exerts over public schools shows that it is properly performing a governmental function in light of the state *606constitutional mandate that underlies that function.5

Second, on another erroneous path, the majority asserts that, because the CBEST applies only to public school employees, in imposing the test requirement California is acting in a proprietary capacity. This assertion fails to see the full picture of California’s educational system. California’s regulation of teacher qualifications is not confined to the public school system, but extends to all teachers. Private tutors and parents intent on home schooling must possess valid teaching credentials. Cal. Educ.Code § 48222. Similarly, private school teachers must be “capable of teaching,” and to permit the state to monitor that requirement private schools are required to file annually with the Superintendent of Public Instruction a statement listing each of their faculty members and their qualifications. Cal. Educ.Code §§ 48222, 33190. Students who attend private schools that do not meet these standards are not excused from the state’s compulsory education laws that require public school attendance. See id.; see also Cal. Educ.Code § 48200.

That the state has chosen to impose different qualification requirements on teachers in different settings does not mean that the CBEST is an exercise of proprietary, rather than governmental, powers. Instead, it reflects the differing circumstances and differing state interests that are implicated. For example, the California Constitution requires the state to “ensure basic educational equality” in its public schools. Butt, 4 Cal.4th at 681, 15 Cal.Rptr.2d 480, 842 P.2d at 1249. At the same time, under the United States Constitution, California may not require all children to attend those public schools, because “[t]he fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only.” In re Shinn, 195 Cal.App.2d 683, 693, 16 Cal.Rptr. 165, 172 (1961) (quoting Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925)). While the state may have a strong interest in ensuring uniformity of basic skills among public school teachers, it does not have the same interest in ensuring uniformity among private school .teachers or private tutors. For this and perhaps other reasons, in exercising its police powers California might rationally impose different qualification requirements on teachers in these vastly different settings. See, e.g., People v. Turner, 121 Cal.App.2d Supp. 861, 866-67, 263 P.2d *607685, 688 (Dep’t Super.Ct.1953) (describing basis for distinction in qualification requirements for private tutors, home school teachers, and teachers in private schools). Further, even if a lack of basic skills were perceived to be a problem in all educational settings, it is well-established in precedents assessing equal protection that a state may address such problems in a piecemeal fashion. See, e.g., City of New Orleans v. Dukes, 427 U.S. 297, 303-04, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976).

B

Not only does the majority’s holding miss the clear mark set by Supreme Court precedent, it also squarely conflicts with the decisions of the only two other circuits to have considered a similar issue. In Fields v. Hallsville Independent School District, 906 F.2d 1017 (5th Cir.1990), the Fifth Circuit held that a Texas teacher skills test, much like the CBEST and applicable only to public schools,6 was merely a licensing exam and not subject to Title VII. Id. at 1020. The majority attempts to distinguish Fields by urging that in that case there was little evidence of the “control” over schools that is present here. The evidence that the Fields court was looking for, but did not find, was evidence of, for example, whether the state “played any role in the general hiring and firing of teachers” or was involved in their “daily supervision.” Id. No such evidence existed there, and none exists here either. Hiring and firing of California’s school teachers is performed by local school boards, as the majority concedes. And those boards are charged by statute with controlling the daily activities that teachers perform, and with evaluating their performance. See, e.g., Cal. Educ.Code §§ 35020, 44660.

Similarly, in EEOC v. Illinois, the Seventh Circuit rejected the theory that Sibley liability applied to render the State of Illinois liable for discrimination in school districts’ hiring and firing of teachers, despite the pervasive control that the state exerted over various aspects of the districts and their teachers, not unlike the control exerted by California upon which the majority’s theory relies:

The State of Illinois exerts more control over public school teachers than over any private employees in the state and probably over any other persons formally employed by local governments in the state. The state fixes not only a minimum salary for all teachers — which is after all not much different from fixing a minimum wage for private as well as public employees, and no one supposes that the federal government is the indirect employer of all the workers covered by the federal minimum-wage law — but also the number of days a teacher must work, what holidays he gets off, the amount of sick leave he is entitled to, his eligibility for and length of sabbatical leave, the minimum lunch period, the terms of teachers’ tenure, the rights of recalled teachers, and much else besides. 105 ILCS 5/24-1 et seq. But we do not think this makes the state the “real” employer of these teachers. So far as discrimination in hiring and firing on the basis of age or other forbidden characteristics is concerned, the key powers are, naturally, those of hiring and firing. Those powers are in the hands of the local school district, though constrained of course by the tenure provision of the state’s school code. 105 ILCS 5/24-12. Fields v. Hallsville Independent School District, 906 F.2d 1017, 1020 (5th Cir.1990) (per curiam), holds that a state’s role in licensing public school teachers does not make them the state’s employees. To similar effect, see Haddock v. Board of Dental Examiners, 777 F.2d 462, 464 (9th Cir.1985). We think the present case is closer to Fields and *608Haddock than to the cases that classify the defendant as an indirect employer.

69 F.3d at 171.

C

The majority’s theory that a state that extensively regulates an activity is subject to Sibley liability also is unworkable. Where and how are we to draw a line, other than arbitrarily? States regulate a wide range of activities in ways that potentially interfere with individuals’ employment opportunities with third parties. For example, California extensively regulates farm labor contractors, requiring them to have a state license, and regulating their relations both with farm laborers and the farms with whom they contract. See Cal. Labor Code § 1682 et seq. It heavily regulates the pharmacy industry, including licensing pharmacists, and regulating their authority, duties, and work hours. See Cal. Bus. & Prof.Code § 4051 et seq.; Cal. Labor Code § 850. It regulates school busing, including driver certification, whom buses may carry, and the features that buses must have. See Cal. Educ.Code § 39830 et seq. It regulates nursing and nursing education, requiring licenses for all nurses, and special licenses for public health nurses, including those employed by local, in addition to state, agencies. See Cal. Bus. & Prof.Code §§ 675-79, 2700 et seq. It regulates harbors and navigation, including navigation, Cal. Harb. & Nav.Code § 240 et seq., vessels, id. § 399 et seq., masters and crews, id. § 790 et seq., and requires special licenses for pilots in the San Francisco Bay Area, id. § 1105 et seq.

Under the majority’s theory, depending on the extent of the regulation in each of these areas, the State of California potentially could be liable under Title VII for the good faith exercise of its police powers to protect migrant farm workers, the public health, the safety of school children, and the environment and safety in San Francisco, San Pablo, and Suisin Bays. This result would impair federalism and is not a choice made by Congress.

The majority’s opinion also calls into question this court’s own decision in Haddock. The majority contends that Haddock is not inconsistent with its holding in Part I.A, arguing that in that case “licensing was the entire connection between the plaintiffs and the defendants.” The State of California, however, is heavily involved in regulating the dental profession, including such diverse areas as setting licensing requirements, employment and compensation for acupuncturists in dental offices, the use of general anesthesia, and the facilities and equipment that dentists may use. See Cal. Bus. & Prof.Code § 1600 et seq. On the majority’s theory, this regulation seems sufficient to render the State of California, if not the Board of Dental Examiners, liable under Title VII for any discriminatory impact in the dental licensing exam. Was Mr. Haddock’s only problem that he sued the Board of Dental Examiners rather than the state?

These are only examples but illustrate that the majority’s reliance on a “pervasive involvement” trigger for state Title VII liability either will extend Title VII into every aspect of a state’s exercise of its police power, or will permit arbitrary application of Title VII depending on each court’s interpretation and assessment of the scope of state regulatory control in varied fields. Neither result could be what Congress had in mind when it made it unlawful for “employers” “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment. ...” 42 U.S.C. § 2000e-2(a)(l).

CONCLUSION

The majority’s holding in Part I.A ignores the mandate of the Supreme Court that, absent clear evidence of a congressional intent, courts must refrain from construing federal statutes as regulating in areas where states traditionally have been *609sovereign in exercising their police powers. In addition, it conflicts with the only two other circuits to have considered the issue whether a state can be held liable for its school district’s hiring and firing actions. The holding in Part I.A also impairs respected values of federalism because the majority applies Title VII to states’ good faith exercise of their police powers. For these reasons, I respectfully dissent from that part of the majority opinion.

. Judges O'Scannlain and Kleinfeld join in part II, agreeing that Title VII does not apply to the CBEST.

. If Title VI or Title VII were assumed to be applicable to the CBEST, I would also agree with the majority that the CBEST was properly validated.

. This case arose under the Age Discrimination in Employment Act ("ADEA”), 29 U.S.C. § 623(a)(1). However, the Supreme Court has noted that because the anti-discrimination provisions of the ADEA and Title VII are identical, interpretation of one act applies with equal force to the other. See Trans World Airlines v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985); see also McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 358, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995) ("The ADEA and Title VII share common substantive features and also a common purpose.”).

. The State of California is not an employer of public school teachers. See Fry v. Board of Educ., 17 Cal.2d 753, 759-61, 112 P.2d 229, 234 (1941) (local school board and teacher have employer-employee relationship). Rather, individual school districts employ teachers. See Gonzales v. California, 29 Cal.App.3d 585, 589-91, 105 Cal.Rptr. 804, 807 (1972). Thus, if Title VII applies to the state, it must apply to the state indirectly, under a Sibley-like theory.

. That school districts are agents of the state for Eleventh Amendment purposes does not transform the state into an employer of all public school teachers, nor does it convert the state’s regulation of education from a governmental to a proprietary function. First, the majority’s assertion that school districts’ Eleventh Amendment immunity arises from the fact that the state is "so entangled with the operation of California's local school districts,” overstates the case. In Belanger v. Madera Unified School District, 963 F.2d 248 (9th Cir.1992), we held that California's local school districts have Eleventh Amendment immunity not because of some putative overarching state entanglement, but because the districts satisfied the five-factor test summarized in Mitchell v. Los Angeles Community College District, 861 F.2d 198, 201 (9th Cir.1988):(1) a money judgment against a district would be satisfied out of state funds; (2) the school districts perform a central governmen-lal function; (3) the school districts can sue and be sued in their own name; (4) the districts can take property in their own name; and (5) the districts have the corporate status of agents for school administration.

The fact remains, however, that the districts are distinct from the state in several respects that are relevant to the analysis here. For example, although the districts may be agents of the state for Eleventh Amendment purposes, the state is not vicariously liable for the torts of the districts or their teachers. See Butt, 4 Cal.4th at 680-81, 15 Cal.Rptr.2d 480, 842 P.2d at 1248. Similarly, the state is not vicariously liable for a district's breach of contract. See id. Finally, and most importantly, the state is not the employer of teachers, and districts have no authority to hire teachers on behalf of the state so as to make them state employees. See Gonzales, 29 Cal.App.3d at 589-91, 105 Cal.Rptr. at 807.

. See State v. Project Principle, Inc., 724 S.W.2d 387, 391 (Tex.1987); Tex. Educ.Code § 13.047 (1987).