Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 85 C 3744--Nicholas J. Bua, Judge.
Before COFFEY and FLAUM, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
ESCHBACH, Senior Circuit Judge.
The primary question presented in this appeal is whether the district court erred in dismissing the plaintiffs' complaint on the ground that it failed to state a claim under § 204(f) of the Equal Educational Opportunities Act of 1974 (codified at 20 U.S.C. § 1703(f)), the Fourteenth Amendment, and Title VI of the Civil Rights Act of 1964. For the reasons stated below, we find that the lower court's dismissal of the complaint under Fed. R. Civ. P. 12(b)(6) was improper and will remand the action for further proceedings consistent with this opinion.
On April 16, 1985, the plaintiffs filed in federal district court an action under 42 U.S.C. § 1983 and Fed. R. Civ. P. 23(b)(2) in which they sought injunctive and declaratory relief on behalf of all Spanish-speaking children of limited English proficiency "who have been, are, or will be enrolled in Illinois public schools, and who have been, should have been, or should be assessed as limited Engligh-proficient." Complaint P 6. (In this opinion, children of limited English proficiency will be referred to as "LEP children.") The six named plaintiffs--students enrolled in either the Iroquois West School District No. 10 or the Perioa School District No. 150--are Spanish speaking. Five are LEP children. The sixth has not yet had her English proficiency tested by her local school system. The complaint named as defendants the Illinois State Board of Education ("Board") and the State Superintendent of Education, Ted Sanders ("Superintendent").
In passing on the propriety of the district court's ruling under Fed. R. Civ. P. 12(b)(6), we must accept the well-pleaded factual allegations of the complaint as true. Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1104 (7th Cir. 1984), cert. denied, 470 U.S. 1054, 105 S. Ct. 1758, 84 L. Ed. 2d 821 (1985). We are, of course, not bound by the plaintiffs' legal characterization of the facts. Prudential Life Insurance Co. v. Sipula, 776 F.2d 157, 159 (7th Cir. 1985). Thus, the following fact recitation is drawn from the complaint. In that pleading, the plaintiffs allege the following:
In general terms, the plaintiffs were injured because the Board and the Superintendent violated both federal and state law by failing to promulgate uniform and consistent guidelines for the identification, placement, and training of LEP children. As a direct result of the defendants' acts or omissions, the plaintiffs have been deprived of an equal education and have suffered economic hardship, undue delays in their educational progress, and in many cases exclusions from any educational opportunities.
Under Ill. Rev. Stat., ch. 122, P 1A-4(C), the Board is responsible for the educational policies and guidelines for public and private schools from pre-school through grade 12. Under id. P 14C-3, that state agency must prescribe regulations for local school districts to follow in ascertaining the number of LEP children within a given school district and for classifying these children according to the language in which they possess primary speaking ability and according to their grade level, age, or achievement level. The Board must also prescribe an annual examination for determining the level of the LEP children's oral comprehension, speaking, reading, and writing of English. The Board has received and continues to receive federal funding for the implementation of educational programs designed to benefit LEP children.
The Superintendent is the chief executive officer of the Board. Under Illinois law, the Board has delegated to the Superintendent the authority to act on its behalf. The Superintendent has also been delegated the authority to develop rules necessary to "carry into efficient and uniform effect all laws for establishing and maintaining" public schools in the state including, inter alia, "teaching and instruction, curriculum, library, operation, administration and supervision." State Board of Education, The Illinois Program for Evaluation, Supervision, and Recognition of Schools (Document No. 1) at i (1977). The Superintendent is specifically charged with establishing rules for the approval and reimbursement of local school districts that provide transitional bilingual educational programs. Ill. Rev. Stat. ch. 122, P 14C-12.
The Board has promulgated regulations requiring every local school district in Illinois to identify LEP children. Id. P 14C-1. The identification process is referred to as a "census." When a census at a particular school building identifies as LEP children 20 or more students who speak the same primary language, the local district is required to provide a transitional bilingual education program. Id. P 14C-3. When the census discloses less than 20 such students, the Board does not conduct any review or supervision of the existence or adequacy of whatever services a district might provide to LEP children.
The plaintiffs allege that the Board and the Superintendent have failed to provide local districts with adequate, objective, and uniform guidelines for identifying LEP children. As a result, local districts perceive that they have unlimited discretion in selecting methods of identifying such children and as a result have been able to avoid transitional bilingual education requirements by identifying less than 20 LEP children of the same primary language in a particular building. In addition, because of the absence of proper guidelines, local districts have been found to use as many as 23 different language proficiency tests, 11 standardized English tests, 7 standardized reading tests, and many formal and informal teacher-developed tests. Some of these tests do not accurately measure language proficiency, so that LEP children are not properly identified. This array of tests has also, to the detriment of the plaintiffs, resulted in inconsistent results.
As a result of the defendants' failure to prescribe the proper guidelines, LEP children throughout the state have been denied the appropriate educational services they are entitled to under federal and state law. Until the proper guidelines are promulgated, the local districts will continue to deny the plaintiffs such services. The Board and the Superintendent have failed, and continue to fail, to support and enforce the statutory and regulatory requirements against those local districts that are not complying with the existing requirements. In addition, the defendants have also failed to withhold federal and state funds from the non-complying districts. They have, in violation of federal law, failed to provide equal educational opportunities to those students in attendance centers with less than 20 LEP children with the same primary language. The Board and the Superintendent have identified, as of March of 1984, 38,364 Spanish-speaking LEP children. Only 23,179 are in transitional bilingual educational programs. Thus, 5,185 students identified as LEP children are being denied adequate educational programs and equal educational opportunities.
According to the complaint, the defendants' actions of failing to provide local districts with proper guidelines for the identification and placement of LEP children and of failing to monitor and enforce the local districts' compliance with the law, violate the plaintiffs' rights under (1) § 204(f) of the Equal Educational Opportunities Act of 1974 ("EEOA"), codified at 20 U.S.C. § 1703(f); (2) the Equal Protection Clause of the Fourteenth Amendment; and (3) Title VI of the Civil Rights Act of 1964 (codified as amended at 42 U.S.C. § 2000d) and its regulations, 34 C.F.R. § 100.3 et seq.
The plaintiffs, after alleging that they had no adequate remedy at law, sought declaratory and injunctive relief, as well as costs and attorney's fees under 42 U.S.C. § 1988. They requested that the class be certified, but the record before us does not indicate that the district court ever ruled on certification.*fn1 The defendants did not answer the complaint, but filed a motion, pursuant to Fed. R. Civ. P. 12(b)(6), to dismiss for failure to state a claim upon which relief can be granted.
The case is not over in the district court. The court has not identified the parties to be bound by the judgment, one of the elementary requirements of finality. The opinion granting summary judgment explicitly contemplates further proceedings to ascertain who shall be bound . . . . We are confronted with the possibility of two appeals: one on the merits, followed by a second appeal if either party should be dissatisfied with any aspect of the certification of the class (or the refusal to certify a class). A final decision is one wrapping up the case and leaving nothing but execution, . . . this "judgment" does not meet that test.
In the present case, the district court did not retain anything for later decision. While the court's failure to decide the certification question would have presented problems if we had affirmed and the defendants later sought to plead the judgment as res judicata to a subsequent suit brought by other members of the putative class (and for this reason we caution the district courts against disposing of putative class actions without deciding whether a class should be certified), resolution of those problems would have to await a subsequent suit, rather than additional proceedings in the present one. The district court dismissed the suit in its entirety, clearly leaving itself with nothing else to decide. While the failure to decide the certification question may have been error, it was not such as to deprive this court of jurisdiction over this appeal.
The district court granted the defendants' motion on July 12, 1985. 614 F. Supp. 342. Citing Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984), the lower court held that the Eleventh Amendment barred any relief the plaintiffs sought for violations of Illinois law. It did not pass on the Eleventh Amendment questions regarding violations of federal law, however, but concluded that the defendants had discharged any obligations imposed on them by the EEOA. Specifically, the district court ruled that no particular remedy is set forth in the EEOA for implementing bilingual education, so that a state is free to establish its own program and to delegate to local school districts the primary burden of implementing it. According to the lower court, once a state has passed a statute setting up a transitional bilingual educational program and once the state's board of education has drawn up and promulgated guidelines for the program's implementation, the burden of execution shifts to the local districts, and the state agencies have no further obligations.
The court concluded that the Board and the Superintendent had issued "detailed" regulations, so that the defendants had no further duty under Illinois or federal law. Accordingly, any remedy available to the plaintiffs must come from the local districts. The court went on, however, to conclude that the state defendants "are not the proper parties . . . under § 1703(f)." 614 F. Supp. at 347. The court, therefore, dismissed the plaintiffs' complaint and directed them to file a new complaint under § 1703(f) against the local school officials in the federal district court in which the districts are located.
The court then turned to a consideration of the remaining claims under both the Equal Protection Clause and Title VI. It concluded that, because "the plaintiffs allege neither purposeful discrimination nor past de jure discrimination in the defendants' attempts to enact transitional bilingual education programs," the allegations of violations of the Equal Protection Clause, § 1983, and Title VI did not state a claim. 614 F. Supp. at 347. The complaint was dismissed in its entirety, and the plaintiffs' motion for reconsideration was denied. This appeal followed.
Before discussing the merits of the district court's dismissal of the complaint, we must consider two preliminary matters: the effect of the Eleventh Amendment on the plaintiffs' claims ...