United States District Court, Northern District of Illinois, E.D
July 24, 1985
JORGE AND MARISA GOMEZ, ET AL., PLAINTIFFS,
ILLINOIS STATE BOARD OF EDUCATION, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Bua, District Judge.
Before the Court is the defendants' motion to dismiss the
complaint of the purported plaintiff class, pursuant to
Fed.R.Civ.P. 12(b)(6), in an equal education opportunity case.
For the reasons stated below, the defendants' motion is granted
and the plaintiffs' complaint is dismissed. The plaintiffs are
directed to file an amended complaint naming the correct parties
This is a class action brought by the named plaintiffs on
behalf of Spanish-speaking children of limited English
proficiency who are enrolled in various local school districts in
Illinois. The named plaintiffs are students enrolled in either
Iroquois West School District # 10 or Peoria School District #
150. Plaintiffs claim that their school districts have not tested
them for English language proficiency nor have they received
bilingual instruction or compensatory instruction. In support of
this claim, plaintiffs assert that the Illinois State Board of
Education and Ted Sanders, the Illinois State Superintendent of
Education, have violated Chapter 122, Section 14C-3 of the
Illinois Revised Statutes by failing to perform their duties
That state statute governs transitional bilingual education in
the Illinois state school system. The statute requires school
districts to identify students of limited English-speaking
ability and classify them according to language, grade, age or
achievement level. Any school district with 20 or more students
of limited English speaking proficiency must establish a
transitional bilingual education program. The Illinois State
Board of Education's responsibility under this statute is to
develop certain regulations which must be adhered to by the
Finally, plaintiffs argue that these alleged violations of
state law constitute violations of their federal rights under the
Equal Educational Opportunities Act of 1974 (EEOA), 20 U.S.C. § 1703(f),
Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d,
and regulations promulgated thereunder, 34 C.F.R. § 100.3
et seq., § 42 U.S.C. § 1983, and the Fourteenth Amendment to the
United States Constitution. Plaintiffs seek a declaratory
judgment that defendants have violated § 1703(f) and seek
injunctive relief to remedy the violation. Specifically, they
seek a mandatory injunction requiring defendants to provide local
school districts with uniform standards for the identification
and instruction of limited English-proficient students. They also
seek programs for limited English-proficient students in school
districts where there are less than 20 such students as well as
a means by which parents may contest placement of students in a
linguistic remedial program.
A. The Eleventh Amendment Defense
In support of their motion to dismiss, the defendants argue
that, at its heart, plaintiffs' complaint alleges violations of
state law in themselves and as violations of federal law.
Further, defendants contend that, since state law violations are
at the core of plaintiffs' action, the relief granted to the
plaintiffs would necessarily involve an order requiring the
defendants to comply with state law. Therefore, defendants
conclude that plaintiffs' case is barred by the Eleventh
Amendment because the relief most likely to be awarded is barred
by Pennhurst State School and Hospital v. Halderman, 465 U.S. 89,
104 S.Ct. 900, 79 L.Ed.2d 67 (1984).
In Pennhurst, the class of plaintiffs contended that the
conditions of confinement at a state institution for care of the
mentally retarded violated their federal constitutional
and statutory rights as well as the Pennsylvania Mental Health
and Mental Retardation Act. The only issue considered by the
United States Supreme Court was whether ". . . the Eleventh
Amendment prohibited the District Court from ordering state
officials to conform their conduct to state law . . ." Id. at
906. The Supreme Court first noted that suits against a state or
its agencies are barred by the Eleventh Amendment, as is a suit
against state officials, when the state is the real party in
interest. Id. at 908-909. An exception to this rule is that a
suit challenging the constitutionality of a state official's
action or a state statute is not one against the State. Ex parte
Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).
In Pennhurst, the Supreme Court concluded that ". . . a federal
suit against state officials on the basis of state law
contravenes the Eleventh Amendment when — as here — the relief
sought and ordered has an impact directly on the state itself."
Id. 104 S.Ct. at 917. In its reasoning, the Court found that a
federal court's instructions to state officials on how to conform
their conduct to state law constitute too great an intrusion on
state sovereignty and therefore conflict "directly with the
principles of federalism that underlie the Eleventh Amendment."
Id. at 911. Finally, the Court held that its above holding
applies "as well to state-law claims brought into federal court
under pendent jurisdiction." Id. at 919.
Plaintiffs counter that Pennhurst does not apply because, in
this case, defendants' failure to supervise local districts in
their identification and placement of limited English-proficient
students is itself a violation of federal law. Specifically,
plaintiffs complain that the defendants' failure to make uniform
guidelines for identification of limited English-proficient
students constitutes a "failure by an educational agency to take
appropriate action to overcome language barriers that impede
equal participation by its students in its instructional
programs." 20 U.S.C. § 1703(f). Therefore, since defendants'
alleged failure to write guidelines under state law also violates
federal law, plaintiffs conclude that an order compelling
defendants to comply with state law is really meant to cure their
violation of federal law and therefore Pennhurst should not apply
to bar such relief.
Plaintiffs' attempt to distinguish Pennhurst from this case is
unpersuasive. While it is correct that the Supreme Court in
Pennhurst was not faced with this argument which links a
violation of state law to a violation of federal law, the Court
did expressly consider the effect of the Eleventh Amendment on
the doctrine of pendent jurisdiction over state law claims. Id.
at 917. As noted above, the Court held that the Eleventh
Amendment "principle applies as well to state-law claims brought
into federal court under pendent jurisdiction." Id. at 919. This
holding persuades this Court that the Supreme Court in Pennhurst
meant for state and federal law claims to be dealt with
separately in an Eleventh Amendment analysis. Therefore, the
Court will treat the plaintiffs' claims for relief as twofold:
one relief for violation of state law and another relief for
violation of federal law.
B. Relief Under State Law
As set forth in Pennhurst, the Eleventh Amendment bars an
action for relief against state officials based solely on state
law where the relief would impact directly on the state.
Pennhurst, supra, 104 S.Ct. at 917. In the present case, the
plaintiffs seek a mandatory injunction requiring the Illinois
State Board of Education and the Illinois State Superintendent of
Education to provide local school districts with uniform
standards for the identification and instruction of limited
English-proficient students. Insofar as this requested relief
requires the defendants to comply with the Illinois statute
establishing transitional bilingual education programs,
Ill.Rev.Stat. Ch. 122, § 14C-3, the Court finds that the relief
is barred by Pennhurst and the Eleventh Amendment because the
injunction will impact directly on the state and is based solely
on state law. Therefore, the
plaintiffs' complaint is dismissed as to those portions based on
§ 14C-3 and requesting compliance thereunder.
C. Relief Under Federal Law
1. 20 U.S.C. § 1703(f)
Plaintiffs assert that defendants have abdicated their
responsibility under 20 U.S.C. § 1703(f) by failing to make
guidelines under state law. This assertion is untenable in light
of the federal and state statutes. Section 1703(f), as cited
above, sets forth a general duty on the part of a state not to
discriminate in the area of educational opportunity. Neither §
1703(f) nor any other section of the EEOA specify the type of
program which a state should enact in promoting transitional
bilingual education. The prohibition in § 1703(f) is against
inaction by a state or local school district in remedying
Since no specific remedy is set forth in the EEOA for
implementing transitional bilingual education, the state is free
to set up its own program and delegate to local school districts
the primary burden of implementing it. Once a state has passed a
statute setting up a transitional bilingual education program and
once the state board of education has drawn up and enacted
guidelines for the program's implementation, the burden of
implementing the program guidelines shifts to the local school
district. This conclusion is especially true for the transitional
bilingual education program set up under Illinois law.
Ill.Rev.Stat. ch. 122 § 14C-3.
Under Illinois law, the only role specified for the State Board
of Education is drafting regulations. Id. The State Board has
fulfilled this duty in Title 23 of the Illinois Administrative
Code, Subtitle A, Chapter I, Subchapter f, Part 228, entitled
Transitional Bilingual Education (1984). These regulations define
children of limited English-speaking ability as those children
falling within language levels I-IV. § 228.10(e) & (f). §
228.10(1) defines six Levels of Language Fluency.
The administration of a census to determine how many children
are of limited English-speaking ability is delegated to the
superintendent of each school district. § 228.60(b)(1). The
census must be conducted by persons who can speak and understand
the necessary languages of the various groups of limited
English-speaking children. § 228.60(b)(2). In addition, the local
school district shall seek cooperation from local agencies,
organizations or community groups if assistance is needed in
determining the students' levels of language fluency. §
Finally, parents or legal guardians of children who have not
been counted in the census as possessing limited English-speaking
ability may request placement into a transitional bilingual
education program. The school district's determination upon such
request is mandatory and appealable to the Superintendent of the
Educational Service Region. See also § 228.80(c) (covering
parental protests to placement, transfer, and withdrawal of
students in transitional bilingual education programs).
In light of these detailed regulations, it is clear to the
Court that the plaintiffs either have never read these
regulations promulgated by the State Board of Education or really
mean to assert a cause of action against the local school
districts in which the named plaintiffs are enrolled. In either
event, the appropriate cause of action in this case is against
the local school districts and not a statewide remedy, which has
doubtful merit, for failure to make appropriate guidelines. The
Court finds support for its conclusion that this § 1703(f) action
should be brought against the local school districts in United
States v. State of Texas, 680 F.2d 356 (5th Cir. 1982).
In State of Texas, the Fifth Circuit Court of Appeals
interpreted § 1703(f) as giving state and local authorities
substantial latitude to select programs and techniques of
language remediation suitable to meet their individual problems.
The Fifth Circuit then noted that the Texas Act, like the
Illinois Act here, gave even greater latitude to the local school
districts by setting up
certain minimums in the area of transitional bilingual education
programs. See Ill.Rev.Stat. ch. 122, § 14C-3. In light of these
observations regarding the federal and state statutes, the Fifth
Circuit concluded that a statewide remedy was inappropriate.
In support of its conclusion, the Fifth Circuit reasoned:
It follows, then, that whether the effect of a local
language program, state-man-dated or not, constitutes
appropriate action to deal with language barriers
faced by the students of a given school district will
of necessity be an essentially local question. Either
the actual, local program as it operates on actual,
local students is an appropriate response to their
language problems or it is not. If it is, then
section 1703(f) has been complied with as to these
students; if not, it has not been. And since the type
and level of program to be instituted is in great
part left to the individual district, it necessarily
follows that one district may be in compliance, while
another next door to it may not. We fail to see how
such questions as these can be properly resolved in
the absence of the school district concerned or how
they can be effectively dealt with on a statewide
Id. at 374. Accord. Coates v. Illinois State Bd. of Ed.,
419 F. Supp. 25 (N.D.Ill. 1976); see contra Idaho Migrant Council v.
Board of Education, 647 F.2d 69 (9th Cir. 1981).
Since it finds persuasive the result in State of Texas and its
interpretation of § 1703(f), the Court finds that the state
defendants are not the proper parties in this action brought
under § 1703(f). In addition, the Fifth Circuit in State of Texas
directed the district court, "in the event that individual school
districts are made parties hereafter, to give serious
consideration to such motions for change of venue as may result
— to the end that, in the absence of some overriding reason to
the contrary, local school districts may litigate in their local
federal courts." State of Texas, supra, 680 F.2d at 374.
Following the Fifth Circuit's lead, the Court dismisses the
plaintiffs' complaint and directs the plaintiffs to file a new
complaint under § 1703(f) against the local school officials in
the federal district court where the school districts are
2. The Fourteenth Amendment, 42 U.S.C. § 1983, and Title
VI, 42 U.S.C. § 2000d.
After the Supreme Court case of University of California
Regents v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750
(1978), it now appears that Title VI, like the Equal Protection
Clause of the Fourteenth Amendment, is violated only by conduct
animated by an intent to discriminate and not by conduct which,
although benignly motivated, has a differential impact on persons
of different races. Castaneda v. Pickard, supra, 648 F.2d at
1007. Thus, while Bakke did not expressly overrule Lau v.
Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974), it
renders that decision obsolete, insofar as it found a violation
of Title VI merely on proof of discriminatory impact without any
showing of discriminatory intent, as required by Washington v.
Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) and
subsequent cases. United States v. State of Texas, 506 F. Supp. 405,
431 (E.D.Tex. 1981), rev'd on other grounds, 680 F.2d 356
(5th Cir. 1982). If Title VI is coextensive with the Equal
Protection Clause, Bakke, supra, 438 U.S. at 287, 98 S.Ct. at
2746, purposeful discrimination must be shown to make out a
statutory violation. State of Texas, supra, 506 F. Supp. at 431.
This rule applies to § 1983 claims where the underlying cause of
action is for racial discrimination as violative of the Equal
Protection Clause. 6 Fed.Proc.L.Ed. § 11:179, p. 196.
In the present case, the plaintiffs allege neither purposeful
discrimination nor past de jure discrimination in the defendants'
attempts to enact transitional bilingual education programs.
Therefore, the plaintiffs' complaint, based on Title VI, the
Equal Protection Clause and § 1983, is dismissed because it does
not allege purposeful discrimination.
For the reasons stated above, defendants' motion to dismiss is
granted as to plaintiffs' state law claims and federal law
claims, based on the Fourteenth Amendment, Title VI, 42 U.S.C. § 2000d
and 42 U.S.C. § 1983. Plaintiffs' complaint based on
20 U.S.C. § 1703(f) is dismissed as to the state defendants and
plaintiffs are directed to file a new complaint naming local
school officials as defendants in the federal district court
where the school districts are located.*fn1
IT IS SO ORDERED.