Lau v. Nichols – Oral Argument – December 10, 1973

Media for Lau v. Nichols

Audio Transcription for Opinion Announcement – January 21, 1974 in Lau v. Nichols

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Warren E. Burger:

We’ll hear arguments next in number 72-6520, Lau and others against Nichols.

Mr. Steinman, I think you may proceed whenever you’re ready.

Edward H. Steinman:

Thank you.

Mr. Chief Justice and may it please the Court.

I wish to devote the 20 minutes of my opening argument to the constitutional issues raised in this case.

I would then be followed by Mr. J. Stanley Pottinger, the Assistant Attorney General of United States who will address himself to the statutory violation to the Civil Rights Act of 1964.

The issue in this case concerns a discrimination suffered by nearly 1,800 non-English-speaking Chinese students in San Francisco in the provision of educational benefits and opportunities.

Both the Federal District Court and the Ninth Circuit Court of Appeals below were satisfied that so long as the San Francisco school system provides the same instruction, the same materials, the same teachers to all students, then Equal Protection Clause is satisfied, regardless of the fact that these students since they do not understand English and since they are sitting in classes where English is the instruction which is the language of instruction, regardless the fact that these students cannot learn.

Potter Stewart:

But, if I may interrupt you.

Factually, are these 1,800 more or less students you — they are referred to in your brief, and I think in the record is Chinese students, they are — they are not Chinese-Americans, they are Chinese?

Edward H. Steinman:

They are both Chinese-Americans, they are both native-born and they are also foreign-born, Your Honor.

The school system (Inaudible) interrogatories said that it does not keep records on the origin of birth or on citizenship of the students, but of the seven named petitioners before this Court; five of them are Native-born American citizens.

Potter Stewart:

Oh, they are?

Edward H. Steinman:

Yes, five of them, David Leung, David San, Judy San, Karen Lee, Karen Yee and John Yee (ph).

Potter Stewart:

There’s been a good deal of recent immigration in the United States and particularly into the City of San Francisco, has there not from Taiwan?

Edward H. Steinman:

Oh definitely!

I think it’s clear that many members of the 1,800 students that we represent are recent immigrants.

I think though that one thing must be pointed out which was pointed out in the reply brief of petitioners that the immigration laws were relaxed in the mid 60’s and the new laws went into effect on July 1, 1968.

Yet the defendants in their own survey conducted in November of 1967, seven months before the new immigration laws even went into effect, admitted that they were close to 2,000 non-English speaking Chinese students who as the petitioners are before you effectively excluded from education.

Potter Stewart:

Has — and this 1,800 is out of how many Chinese or Chinese-American students in the school population of San Francisco?

Edward H. Steinman:

In the school population of San Francisco, in the record of the case, there are approximately, one figure as 13,000 from the City Attorney, one figure as 15,000 from the School District.

There are also 3,000 Chinese-speaking students in San Francisco of which the petitioners represent approximately 63% of those.

The petitioners represent those Chinese-speaking students, Your Honor, who received nothing except the regular instruction in English.

In the lower court below, there was another class, a group of petitioners who were non-English speaking Chinese students who did receive some special help.

Those petitioners are not before this Court.

Potter Stewart:

But what was that 13,000 or 15,000 figure?

Edward H. Steinman:

The total number of Chinese students within the San Francisco school system.

Potter Stewart:

So that these — this group of 1,800 is something more than 10%?

Edward H. Steinman:

Probably between 10% and 15%, depending on which figure it is.

Potter Stewart:

And the — I was just curious whether or not Native-born American, that is American citizens in San Francisco grow up not knowing English, or whether this group does embrace primarily recent immigrants from Taiwan and elsewhere.

Edward H. Steinman:

I don’t think that it can — based on the facts in the case Your Honor although the school system does not break it down.

As I said, seven months before the immigration laws even went into affect, the school system admitted that there were nearly 2,000 non-English-speaking Chinese students who received nothing.

The November 1967 survey admitted there were approximately 2,400 non-English-speaking Chinese students within the entire school district.

And of those 2,400 merely 2,000 were in the same type of dilemma according to petitioners.

They don’t speak English, they don’t understand English and yet their entire instructional program is in regular classes where English is the language of the instruction.

Potter Stewart:

Yes, I know the argument but my query as to why, it was as to why they don’t speak English and I think that may have something to do with this case.

Edward H. Steinman:

I think why they don’t speak English, of course, is not in the record, but I think that these Court can take cognizant of the fact that the Chinese community in San Francisco is what we refer to as a ghetto.

It’s quite insular and when the students who are born in this country, come to the schools, they do not have the facilities in English and unfortunately the actions of the school system perpetuate that inability to speak English.

Potter Stewart:

Well in the Chinatown part of San Francisco, is it true that most people there don’t speak English?

Edward H. Steinman:

I don’t know the facts —

Potter Stewart:

Only a ghetto doesn’t answer that question one way or the other?

Edward H. Steinman:

I don’t know, I don’t think we can speak in terms of those, but I think we can speak in terms of the 1,800 students, a vast percentage or Native-born Americans who have lived their entire lives in San Francisco, and have come into the school system speaking no English.

Potter Stewart:

You say a vast majority now, these 1,800, are they native-born?

Edward H. Steinman:

Well again, I cannot address that because it is not in the record.

All I can rely on the fact that in 1967, the school system admitted even before the immigration laws were changed that there would 2,000 students in the school system right then who were Chinese-speaking who do not speak English and this was before the immigration laws were even changed.

So that is all I can surmise for the record, Your Honor.

William O. Douglas:

What is your ultimate complaint?

That English should be taught in these schools or that the instructions should be in Chinese?

Edward H. Steinman:

Oh no!

Our goal is the same announced goal that the school system in the State of California has made.

Our goal is that we want these students to be taught English and to understand English, so they can have the type of mastered English which our society requires.

The problem now is that they are being taught in a language they do not understand.

And we would like the school system to do is to take whatever steps are reasonable and this of course is within their province since they are the experts in this area, to take whatever steps that are reasonable to guarantee that these students are able to benefit with the instruction they are given.

Byron R. White:

So you would have the same objection if they taught them in Chinese?

Edward H. Steinman:

If the school system decided that teaching them in Chinese was the most effective method that would be a bilingual method, Your Honor.

The school system decided that teaching them in Chinese —

Byron R. White:

You wouldn’t complain if they taught them in Chinese?

Edward H. Steinman:

So long as they would be able to understand the language of the instruction which they’re getting throughout the school system.

Byron R. White:

I thought you said you wanted them to learn English so that they could survive in our society.

Edward H. Steinman:

Well, under the state — under the law of State of California, the school system must primarily teach them in English.

Edward H. Steinman:

So if the school system will not teach them totally in Chinese, the school system might wish to employ Chinese-speaking teachers in a bilingual setting, that is their choice.

Our complaint is not with methodology.

We’re not asking this Court to get involved in petty illogical questions.

Our complaint is that right now, the school system is utilizing no methods based on their own admissions if I can refer the Court to the appendix.

Byron R. White:

Do you know how many other students from the so-called ghetto besides these 1,800 are in the schools?

How many total ghetto school children are there?

Edward H. Steinman:

Again the school system has not broken down the place from which the Chinese students come.

In response to Mr. Justice Stewart’s question I can just cite to the fact that there are San Francisco schools at the time that this case was brought, either 13,000 or 15,000 Chinese students —

Byron R. White:

And all that you like — and you, you complain only about 1,800 of them who aren’t passable in English?

Edward H. Steinman:

Well, we’re complaining of the 1,800 who were non-English speaking Chinese students.

I guess the Court — there are different classes the Court can look at.

In our brief, what we have done is we have said that in San Francisco there are approximately 90,000 students who are given instructions from which they can receive educational benefits and opportunities whereas there are 1,800 students who are foreclosed from receiving any opportunity.

In essence it’s effect of exclusion.

Byron R. White:

Excuse me.

I never did get your answer to Mr. Justice Stewart on why — you say the record is just silent on this as to why.

Here, there may be five or 10,000 other ghetto Chinese students who although they come from the ghetto are perfectly competent to learn English, to understand English.

Now what’s the reason about these 1,800?

Did you ever answer him?

Edward H. Steinman:

Well, I cannot tell you why these 1,800 came to school and not knowing English and other Chinese students do.

Byron R. White:

Well do you think, it carried your burden of proof if that isn’t in the record?

Edward H. Steinman:

Oh, I think we have because I think we have shown that the school system has admitted that these 1,800 students receive today no educational opportunities.

If I my quote the record at page 56 of the appendix, the school system says these students “must learn English to function in a regular classroom.”

Byron R. White:

So for whatever reason or whatever reason a person comes to the school not knowingly English, your position is that he must — that the school has an obligation to take some special steps to make him passable in English?

Edward H. Steinman:

Well the school district, Your Honor, is not possible in this regard. The school district compels these students to come to school.

The school district enforces the state requirements that they —

Byron R. White:

Well, I understand that.

I understand that but now, whatever your position, for whatever your reason that the child comes to school without knowing English, the school system must take some special steps for teaching English?

Edward H. Steinman:

If two things are satisfied.

As in this case, the school system admits that these students are effectively excluded from any educational opportunities and we argue that our case may also be different from the one Your Honor’s thinking because the individuals here are members of an identifiable national origin ethnic group, a group which this Court has judicially given suspect class.

Byron R. White:

But the majority of which children from that group know English?

Edward H. Steinman:

That maybe so on the facts, but I don’t — my understanding of the case is that not every member of a suspect class, if I can use that terminology, must be discriminated again before this Court will give a special protection.

Harry A. Blackmun:

Of course this takes us to the next obvious question.

Suppose there were five Portuguese children who couldn’t speak anything, but Portuguese.

Then in your analysis, is the school system obliged to teach them, give them special instruction in English also?

Edward H. Steinman:

If Your Honor assumes that the situation comparing the Portuguese children the same as in this case, where the school system admits that they can receive no possible educational benefits, use it for exclusion, then I think, the school district would have an obligation to do something.

The issue which we are concerned with naturally in Court is, what should be the relief be?

What maybe reasonable in San Francisco to do with 1,800 children may not be reasonable in a given community with five Portuguese.

One of the problems was that —

Warren E. Burger:

But why not?

Aren’t the interest of five people just as important as 1,800?

Edward H. Steinman:

No, I am speaking to relief that teaching the five Portuguese that it might be the type of relief that they might just be able to use cassettes, that they might just be able to use some flexible —

Warren E. Burger:

Well, that has nothing to do with the constitutional right.

Edward H. Steinman:

Oh, no, I am saying that if they are effectively excluded, these Portuguese students would have — I would assume they are members of a national origin.

You know, if you are assuming that they are members of the national origin-minority group as petitioners are that they would have a right to have the school system do something for them, if the school system was admitting that currently, they are effectively excluded.

What the school system does of course is something within their own expertise.

Warren E. Burger:

Well, but something can only be one thing and that is to teach them English, isn’t it?

Edward H. Steinman:

But how that is done?

There are myriad of methods which can be employed.

One of the problems that has been raised in the Court is that when you speak of five Portuguese children, it seems to raise spectrum, they have to have someone the community speak Portuguese and as the record in this case shows, there are mostly different methods to employ.

What I am saying that what may be reasonable — what methods maybe reasonable for dealing with five Portuguese children may not be the same thing that San Francisco might do with its 1,800.

Warren E. Burger:

But you say, the constitutional right is the same right?

Edward H. Steinman:

I mean that there was the effective exclusion which of course to the factual question which has to be dealt within the case.

Warren E. Burger:

But if they cannot speak English, there is a constitutional obligation on the Government to teach them English.

That’s your point, isn’t it?

Edward H. Steinman:

If the Government is going to have —

Warren E. Burger:

Well, just — that’s a yes or a no?

I don’t mean to press you unduly, but that’s a yes or a no, isn’t it?

Edward H. Steinman:

The answer is yes, that we have a system of education.

Warren E. Burger:

And then obviously that that applies, to pursue Mr. Justice Blackmun’s point to Russians, Israelis, Norwegians, Danes etcetera.

There are no — there is no stopping point, is there?

Edward H. Steinman:

Well, but again we are assuming that the one Russian student in a given community.

His knowledge of English is so little that he receives no educational benefits, I contend Your Honor that that is a fact situation that may not be true.

In this case, we have the school system admitting that these students are “inevitably doomed to be dropouts and become another unemployable in the ghetto,” that appears in the school district publication at pages 103 to 104 of the appendix.

Harry A. Blackmun:

Is your position the same as to deaf children too?

Edward H. Steinman:

We are contending that our students unlike the deaf child are not primarily handicap.

Our students do not have a handicap, but they have the capacity and the ability like other students to receive education opportunities, what they need is a very short-term effort.

Harry A. Blackmun:

You are not concerned then with the deaf children?

Edward H. Steinman:

I am very much concerned.

I don’t think that this is its case and that’s why our students come from a suspect class whereas I don’t believe that children who are deaf are apparently members of the suspect class in the way this Court has framed it, race and as to origin etcetera.

If the deaf child is effectively excluded, then of course you would have the issue of then whether or not that effective exclusion would guarantee him to constitutional rights.

I think that our case is different because we do not have children who is, if you want to use the word handicap as permanent.

They, like other children have the innate ability and capacity to learn.

William H. Rehnquist:

What if the state were to relieve your plaintiffs of their compulsory obligation to attend school, would that undermine or overcome your constitutional argument?

Edward H. Steinman:

That sort of a question which I think this Court would have to answer after Rodriguez.

Whether the Court in Rodriguez framed it as a minimum basic education, adequate education and whether that is one compared to others or would that would exist of the school system ended tomorrow.

I am hoping that this Court would never have to reach an issue like that.

The problem here is one of the equal treatments.

These are the students who are getting educational benefits in a compulsory setting.

Harry A. Blackmun:

Mr. Steinman, I take it that the Title VI argument was never — couldn’t have been raised in the District Court?

Edward H. Steinman:

It was raised in the District Court Your Honor.

I believe that the sixth cause — the fifth or sixth cause of action addresses itself to that.

The memorandum or the guidelines were issued at the press release inserted guidelines, came down a day before the lower court made a decision, but naturally all the [Voice Overlap] regulations before that time on which the guidelines were based.

Regulations go into national ordnance who — discrimination under the Civil Rights Act of 1964 have been in existence.

The Court was made aware of the HEW guidelines on May 25 and issued a decision the next day.

So I have it with the record Your Honor.

Harry A. Blackmun:

If Congress had intended to have Title VI apply to this kind of a situation, do you think they would have been more precise in their statutory language?

Edward H. Steinman:

Well, I hope I could address the question as Mr. Will Pottinger address himself to.

I think that the language is precise in the sense that Congress is concerned that programs receiving federal funds, there would be no basis, there’ll be no discrimination on the basis of national origin.

One of the inherent components of national origin would be language discrimination and the regulations which came down even before this lawsuit was brought were issued pursuant to that mandate and the guidelines which came down the day before the lower court order was issued extend further than that.

I would hope that Mr. Pottinger would answer more fully questions in his address later, unless Your Honors wish to pursue it now.

Edward H. Steinman:

As we have indicated, the overall result in this case is in effective exclusion of petitioners from educational benefits, opportunity to receive educational benefits.

Contrast this with the situation confronting this Court in Rodriguez.

In Rodriguez this Court said, this is at 93 Supreme Court pages 1291, 1299, “Texas’ financing system provides at least an adequate program of education for every child in every school district.

No charge fairly could be made that the financing system failed to provide each child with an opportunity to acquire basic minimal skills.”

That is the very charge that we are making here and as the record shows, the respondents have admitted this.

This Court has always been concerned with looking beyond, if you will, “surface equality.”

The Ninth Circuit was satisfied as was the lower court that “surface equality” satisfied the Equal Protection Clause giving everybody the same thing even though some cannot benefit from it.

This Court has always shown, cases even decided before Brown versus Board of Education and the education, in Sweatt versus Painter, McLaurin versus Oklahoma Board of Regents, that there is something to education that education is the essence, if you will, is communication, the interplay of ideas and ability to discuss.

Mr. Justice Frankfurter 20 years ago, made I feel a very cute observation in the Dennis versus United States in the dissenting opinion, when he said “there is no greater inequality than the equal treatment of unequals.”

And I think the Ninth Circuit is ignoring the truth of this observation by failing to recognize that education is not solely a matter of physical presence in a classroom.

That although the 1,800 petitioners and all other students in San Francisco do receive the same materials, the pages are blank for these petitioners, the print conveys nothing, and I think this is what the Court was contrasted if you will in Rodriguez.

When at least in Rodriguez the students were provided a minimum amount of education that every student was given — acquired, an opportunity to acquire basic minimal skills.

Once we have this discrimination, the next question I believe this Court must face is how to evaluate it.

And since 1886, when the Supreme Court decided the case of Yick Wo versus Hopkins.

This Court has historically given close scrutiny and special protection to Chinese individuals like petitioners.

In fact, last term in Rodriguez this Court, through Mr. Justice Powell’s decision, stated the three indicia of what constitutes a suspect class, it is at 93 Supreme Court page 1294.

Now I would like to just repeat them to show you how clearly the petitioners in this case fall within those indicia.

“Saddled with historical disabilities, relegated to a position of political powerlessness, subjected to a history of purpose on equal treatment, this Court has always recognized this concerning Chinese individuals.

In fact in a case 40 years after, Yick Wo, Yu Cung Eng versus Trinidad in 1926 Supreme Court case.

The Supreme Court in that case recognized discrimination to Chinese-speaking individuals, not just Chinese people.

Moreover, Your Honor even if this Court could use the more differential rational relationship test, the respondents have offered no reasons to even satisfy that test.

Unfortunately, they have offered no reasons to satisfy any test and we submit that the discrimination and the absence of any type of justification for it must leave this Court define for the petitioners and order the respondents to develop plans within their own expertise which would overcome the deprivations this petitioners suffer and provide them opportunities to learn.

My 20 minutes are up Your Honor.

Mr. Pottinger will now speak.

Warren E. Burger:

Mr. Pottinger.

J. Stanley Pottinger:

Mr. Chief Justice and may it please the Court.

The State of California like most states of the union has sought — has seen fit to compel its students to attend school to set as one of the educational goals, the mastery of the English language indeed to require a demonstration in this language as a condition for graduation from high school.

Ascribing this critical role to the English language has not, however, in our opinion, the issue in contention.

The issue is whether in so doing the state in this case, the San Francisco School Board assumes a correlative obligation to insure that national origin minority children are not effectively excluded from participation in the educational process by virtue of that choice.

We believe that such an obligation does exist.

J. Stanley Pottinger:

Now, as mentioned to you, there are two areas of the law under which this obligation maybe shown to exist.

The Equal Protection Clause to which Mr. Steinman has addressed himself, and Title VI of the Civil Rights Act of 1964 to which we wish, the United States wishes to address itself at this time.

It can be shown in this case that the conditions for application of Title VI exist.

The language itself of Title Vi, the three basic protections of Title VI go beyond the Fourteenth Amendment in a coverage.

That Title provides that no person shall on grounds of color, race or national origin first to be excluded from participation in a program, second be denied the benefits of a program, or third in more equal protection type language be subjected to discrimination under a program or any activity receiving federal financial assistance.

In other words, Title VI is not coterminous with Fourteenth Amendment because it was enacted not only pursuant to that amendment, but pursuant to the welfare clause and hence as it is by the necessary in proper clause.

And thereby finding that the power of federal government is the basis for this enactment to condition the expenditure of its funds upon reasonable restrictions related to the purpose or purposes for which those grants were made.

This is clear in the legislative history to the act —

William J. Brennan, Jr.:

Of course, Mr. Pottinger, this applies only to the school districts that participate in the grant program?

J. Stanley Pottinger:

That is correct.

William J. Brennan, Jr.:

And would that — is that rather comprehensive throughout the country or —

J. Stanley Pottinger:

It is Mr. Justice.

William J. Brennan, Jr.:

That is virtually every school district in one form or another?

J. Stanley Pottinger:

It would reach virtually all pubic school systems.

Byron R. White:

Well, does it reach all the districts involved in this case?

J. Stanley Pottinger:

It does.

There is only one.

The legislative history to Title VI makes clear that even the opponents of the Act conceded, indeed discussed in some colloquy the broader basis for the Act, that is broader than the Equal Protection Clause.

Now San Francisco in this particular case has bound itself to compliance with Title Vi and its regulations and all requirements of the Department of Health, Education and Welfare imposed pursuant to those regulations.

Specifically, it has said in a so-called 441 assurance of compliance that it hereby agrees that it will comply with Title VI of the Civil Rights Act and all requirements imposed by or pursuant to the regulation of the Department of HEW to the end that no person shall be denied the benefits of that Act.

Potter Stewart:

Doesn’t HEW itself has a — have a sanction that defines non-compliance with Title VI i.e. cutting off the fund?

J. Stanley Pottinger:

Yes, Mr. Justice it does.

In this particular case it was not invoked because in fact this case is in Court and HEW under its own regulations has the administrative discretion to allow the case to go forward toward enforcement through the federal courts rather than by a duplicate of administrative process.

Nevertheless, the provisions of Title VI under the regulations would apply equally whether the form is the federal District Court or HEW.

Warren E. Burger:

Didn’t this Court suggest that that was the remedy I think in Rosado against Wyman or one of the New York cases that when states are not complying with conditions of grants that the remedy was to cut off the grant and that the District Court had an alternative remedy or duty indeed to stop the expenditure of federal money?

J. Stanley Pottinger:

Yes, Mr. Chief Justice, that is correct.

That could have been done in this case, had the District Court so found its duty to be such under Title VI.

Of course it did not do so, because it did not in fact we believe to give reasonable consideration to Title VI.

The regulations of Title VI make even more specific, the obligation of school boards not to provide any service or other benefit in such a way that is different from that provided to other groups of children to restrict an individual in a way that would restrict his enjoinment of an advantage or privilege or to deny an individual an opportunity to participate.

And of course as this Court has recognized in such cases as the Public Utilities Commission of California against the United States, regulations so are issued have the force of law.

J. Stanley Pottinger:

Now in addition to that, however, in interpreting both the basic protections of Title VI and the regulations, HEW has indeed gone further.

It has construed the meaning of Title VI in a national origin discrimination memorandum relevant to this case by stating that where inability to speak and understand the English language excludes national origin minority group children from the effective participation in the educational program offered by the school district, the school district must take affirmative steps to rectify the language deficiency.

Again, as this Court has held in such cases as Trafficante against Metropolitan Life Insurance or Griggs against Duke Power or Udall against Tallman where a consistent administrative construction of the Act by HEW like the former regulations of the Act are shown that consistent construction is entitled to great weight.

In fact, HEW for a number of years now has sought to implement Title VI by this consistent known official policy.

In 71 school districts which have been notified of violations of Title VI or reviewed for violations, 34 of which have been notified of non-compliance, 80 of which had been reviewed pursuant to another statute which refers to the National Origin Minority Memorandum and the like.

There is in other words consistent practice and known contours of what this policy and practice would lead to.

And may I say at this moment that we in the United States also appreciate the specter of a chaotic policy that might flow from a ruling which would require a massive effort on behalf of virtually every child who could show in any sense an ethnic heritage.

We are not contending as Mr. Steinman has pointed out, (a) that the law would require such chaos or (b) that in this particular case, it would be necessary to go beyond the class of students who are effectively excluded.

Warren E. Burger:

Well, would you relate that concretely for me to the colloquy we had with your associate on Russians, Portuguese, Danes, Israelis etcetera?

J. Stanley Pottinger:

Yes, Mr. Chief Justice Burger I would be pleased to.

I think that there are three points that are crucial to understanding that specter.

The first is that any child on account of national origin who may suffer discrimination is indeed protected under Title VI as well we believe as under the Equal Protection Clause.

The actual remedy of course would be something that would determine whether a specter truly exists or not or whether chaos would exist but the right is protected.

Second, we believe, it’s clear from longstanding administrative practice at the Department of Health Education and Welfare that effective implementation of Title VI in this area does not lead to a difficult or burdensome effort on the part of school districts to meet specific needs of virtually every ethnic minority.

And the reasons for that are simple, we believe, historically the 19th Century system of assimilation of ethnic minorities, particularly Caucasian minorities in this country has been one of a melting pot.

But historically as this Honorable Court knows, non-Caucasian minorities in this country have not been able to assimilate in quite the same fashion.

There has been insularity historically in this country and in this particular case that insularity is even greater where the language difficulties or incompatibilities exist.

Indeed, this case does go beyond the Chinese-speaking community.

It affects the hundreds of thousands of Spanish-speaking children in our society who although their ancestors predate my own and many Caucasians in this country still do not speak the English language, still are the objects of societal forms of discrimination and still in the context of this case are effectively excluded from any participation in the educational process.

William H. Rehnquist:

Are you suggesting that Spanish-speaking people are not Caucasian?

J. Stanley Pottinger:

No, I would like to correct myself in that regard.

I would say Western European Caucasian or Western European whites as the regulations define them.

William H. Rehnquist:

Would you think the Spanish aren’t Western European?

J. Stanley Pottinger:

The —

Harry A. Blackmun:

Or the Portuguese?

J. Stanley Pottinger:

The Portuguese and Spanish clearly are Western European, if my understanding of geography is still correct, Mr. Justice, but I would hasten to add that the — without going too much into the history of the Mexican-American population in this country that it took significant degree, that particular segment of our population has not been treated as Western European Caucasians.

The point I’m trying to make is a simple one and that is that the specter of a morass of different rules and regulations for virtually all ethnic groups simply has not been the experience that HEW has had in this field.

Indeed it has focused on minorities such as the Spanish-speaking and Chinese minorities of this country and Indian-American minorities who suffered historically and continue to suffer from this kind of exclusion in ways that other minorities typically do not.

They may and have shown of course their rights are protected, but typically we are not faced with that jungle and welter of regulations.

Mr. Justice White.

Byron R. White:

Do you thought — do you think our recent opinion in the Karl case bears on this one at all, in terms of the significance of your guidelines and their validity?

J. Stanley Pottinger:

Mr. Justice White, I don’t believe it is controlling.

I believe that we are not looking to the question of alienage versus citizenship in this case.

Byron R. White:

But you’re claiming this is an act of words in discriminating?

J. Stanley Pottinger:

That is correct.

Byron R. White:

And although nothing reads on national origin in school district policies because they teach — they certainly had met Chinese, they treat all Chinese the same as whites.

J. Stanley Pottinger:

Mr. Justice White with all deference —

Byron R. White:

Except for those that they give special instruction to?

J. Stanley Pottinger:

Well I believe that it isn’t — is not the case that they do treat all Chinese —

Byron R. White:

That’s your point, I take it?

J. Stanley Pottinger:

That is correct, that is the point and to underline Mr. Steinman’s point in this regard, the class of petitioners here is excluded entirely.

It is not a question of balancing careful educational considerations in this case.

There is total — effectively total — virtually total exclusion in this particular case as in the case of so many other school districts which we believe the importance of this decision will affect.

Finally, if I may, I would like to respond to the question Mr. Justice Blackmun raised with regard to congressional intent.

We believe that the Congress has considered in its language the question which is presented to the Court today.

It presented this not only in terms of mandating regulations which deal with the issue and specifically the National Origin Memorandum which flows lawfully from that Act.

But it dealt with it in Section 602 of the Act in which the United States Congress provided that each federal department, in this case HEW, which is empowered to extend federal financial assistance, is authorized indeed the languages directed to effectuate the provisions of Section 601, the basic three protections consistent with the achievement of the statute which authorizes the expenditure of money.

In other words, Section 601 protections are to be defined in part by the objectives to be served by the funding program.

In this particular case, there are two critically important funding programs which give meaning and content to 601 and that is the bilingual programs under Title VII of the Elementary and Secondary Education Act and Title I of ESEA which focuses federal money on disadvantaged children.

In both cases, the Congress recognized that HEW would be attempting to serve the children who are petitioners in this case with those programs and thereby said specifically that Section 602 would incorporate the meaning of those programs into 601, the basic protections of the Act.

William J. Brennan, Jr.:

Mr. Pottinger, I note in your brief, you support Mr. Steinman’s constitutional argument.

J. Stanley Pottinger:

That is correct.

William J. Brennan, Jr.:

But I gather, what you told us about the scope of the 601, if we agree with this, we don’t have to reach the constitutional argument, do we?

J. Stanley Pottinger:

That is possible that that is the case.

We do believe that the Equal Protection Clause does support the same relief.

It is possible that there are petitioners or classes of petitioners who will not be affected by federal funds and thereby be treated separately.

William J. Brennan, Jr.:

Well — but that is not so here and I — ordinarily, I think our practice has been – our policy rather, not to reach constitutional questions with statutory determination favorable to the petitioners can be made?

J. Stanley Pottinger:

Well, I believe that distinctions that do exist here may be addressed by Mr. Steinman, that is adequate.

Byron R. White:

But if you are right, we agree with you on the statutory basis, it will be quite inappropriate to reach the constitutional issue at al, wouldn’t it?

J. Stanley Pottinger:

But we believe that with regard to the effect of this decision we have on other cases similarly situated that would not be correct.

J. Stanley Pottinger:

In this particular —

Warren E. Burger:

Other Chinese, other Chinese?

Byron R. White:

How would you relate other cases?

J. Stanley Pottinger:

Well that is distinctly possible.

I would say that the effect of this decision in the court below where a Fourteenth Amendment decision has been made adverse to our position is adversely effecting the department of HEW and perhaps other school districts in their ability to deal with the problems that are presented in this case to that extent —

Byron R. White:

Well, I thought all courts were obliged to deal with statutory issues or constitutional issues in the Ninth Circuit?

J. Stanley Pottinger:

Well, I believe that is the case.

Regrettably the Ninth Circuit chose not to deal with Title VI in any reasonable way.

Warren E. Burger:

But is it clear that the Title VI remedy is broad enough to reach all the people who are now before the Court?

J. Stanley Pottinger:

Yes, it is correct that that would happen.

By the same token, I would like to emphasize that a decision based on the Fourteenth Amendment now stands in the Ninth Circuit and we would hope that this Court would deal with that because it is so fundamentally in error in our position and because of that error it’s likely to affect additional cases such as —

William J. Brennan, Jr.:

Well, may I suggest the technique is simply to decide the statutory issue, and say therefore, it’s not necessary for us and the other Court to have reached the constitutional question?

William H. Rehnquist:

But of course under the Ninth Circuit had no choice, did it?

It reached the statutory issue and decided it against the plaintiffs, and then the plaintiffs say “well, even if you decide the statutory issue against us, we got a constitutional issue.”

The Ninth Circuit had no choice in doing what it did in giving its line of reasoning?

J. Stanley Pottinger:

That is correct Mr. Justice Rehnquist.

However, by attempting to dispose of the Title VI argument in a virtually a single sentence on the basis of the Fourteenth Amendment argument was clear error.

Warren E. Burger:

Conceivably a state, perhaps remote, but it’s conceivable that the state might say, if those are the burdens on Title VI grants, we’ll reject all these grants and then our school system without federal aid and then that case would present pure constitutional question, would it not?

J. Stanley Pottinger:

That is correct Mr. Chief Justice.

Thank you.

Warren E. Burger:

Very well Mr. Pottinger.

Mr. O’Conner.

Thomas M. O’conner:

Mr. Chief Justice and may it please the Court.

I am here representing the San Francisco School District and it is our position of course that we don’t depreciate or challenge any particular educational aids which a school district provides including the one to provide special instruction in English for non-speaking English students.

And in fact, contrary to statements that have been made, the San Francisco School District which operates all the elementary, junior high schools and high schools in San Francisco has for several years been committed to a policy of providing this special language instruction not only to Chinese students, but to Spanish children as well and have now started a Japanese non-speaking English program in San Francisco.

And in the years 1967 — 1966, 1967 the program for the Chinese school children was started.

Commencing in 1967, 1968, the special instruction in English program was started for Spanish-speaking children.

And commencing a 1971, 1972, a separate special instruction in English program was commenced for Filipino children which program had been part of the Spanish-speaking program up to this point and as I mentioned a special program for Japanese-speaking children was started this year.

The expenditures on this program arose to $2.37 million in 1972, 1973.

For the Chinese program, $1,196,550.00 was spent during that fiscal year, for the Spanish program, $956,000.00 and for the Filipino Program $222,000.00.

Potter Stewart:

If all of this is true, what’s this case about then?

Thomas M. O’conner:

This case I think is a case which says that the school board in San Francisco must supply special instruction in English to all students who may require it.

Potter Stewart:

Now you told us that you provided for a Japanese, Filipinos, Chicanos, and Chinese and the Chinese who are involved here, what is it, just your program for the Chinese is not big enough?

Is that the — is that what the case is about?

Thomas M. O’conner:

These are my preliminary statements to show the disposition of San Francisco as far as an attitude toward instructing its children in — who do not speak the language.

Potter Stewart:

Right, and you have told us that your — the practice and policy is to teach English to these people and that prompted my inquiry as to if that is true, what’s this case for controversy?

Thomas M. O’conner:

Our contention is that contrary to what the plaintiffs in this case stated, say they are the group who has not been reached as far as programs are concerned and that San Francisco under the Equal Protection Clause must cover every child with a non-English speaking problem.

It is our contention of course that under the equal protection clause this is not so that the school district has not the constitutional duty to provide such instruction.

Potter Stewart:

But if you are doing this, as I thought — I’d understood you are telling us that you are, then the — nobody needs to decide whether or not it is your constitutional duty?

Thomas M. O’conner:

I didn’t mean to say that we are covering the program entirely.

I was saying that the attitude and the direction and the practice of San Francisco is to import as much of this type of program as it can.

Warren E. Burger:

Well, let’s come down to the 1,800, are they all covered or not?

Thomas M. O’conner:

Well, in 1971 when this case was decided, there were — under stipulation of facts and it was not a stipulation that the children as stated where doomed, that they did not get education.

The stipulation was that 1,800 needed special instruction in the English language, Chinese children.

Byron R. White:

And weren’t getting it?

Thomas M. O’conner:

And there where 2,856 students in the school district with who are non-English speaking Chinese children and of that the number 1,800 received no special instruction.

The remaining 1,066 did receive special instruction in Chinese in three programs.

One was the Chinese center program, one was the bilingual program which was funded by the federal government and the third was the ESL programming, which is the Second Language Program, which the rest of the children that did get.

And the California bilingual Education Act of 1972 called upon the districts in California to specify the children in their district which had limited English speaking ability and also to make the list of those children who had no English speaking ability and pursuant to that census which was taken by the classroom teachers in San Francisco in April of this year, the extent of the problem and the numbers of children who do not speak English or have a limited speaking English ability at the present time or in April of this year are as follows.

There are 9,000 children who have either limited English speaking or no English speaking ability; non-English speaking, 1,180; limited English-speaking 7,904, and while we deal only with the Chinese children in this case, I think the Court will be interested in the statistics as far as the other groups are concerned.

The Spanish total both of non-speaking and limited speaking, 2,980.

The Filipino total, including both 1,395.

The Japanese total, 202.

The Samoan total, 179 —

And Chinese, what was the number?

Thomas M. O’conner:

And I haven’t got to the Chinese yet.

Others not including with Chinese, 747.

The Chinese census report gives a total of 3,457.

Non-English speaking, 436 and they broke it down into schools of the 436, there were 232 in the elementary school, 138 in the junior high and 66 in the senior high, non-English speaking; limited English speaking ability, 1,768.

Warren E. Burger:

Now, where do we find this in the appendix?

Thomas M. O’conner:

This is not in the appendix Mr. Chief Justice.

Warren E. Burger:

Now, where will the Court find it if they want it to go about it?

Thomas M. O’conner:

This is [Voice Overlap] compiled in the statistics of the school board.

I would be very happy if I may to supply the copy of the statistics as part of the record.

Warren E. Burger:

Well, if you consider it an important if you want us to think about it then we should have it and of course, you can give to your friend.

He indicated that there was an inability to give us these figures.

Thomas M. O’conner:

Well, I have supplied I believe both Mr. Pottinger and Mr. Steinman with this report and the Chinese program today shows 2,012 enrolled.

Now I presented these statistics —

Thurgood Marshall:

As of this day, how many Chinese are there in San Francisco who do not speak the English language and/or in public school age group?

Thomas M. O’conner:

There are 13,037 Chinese children in the school.

There are — the difference between 3,457 and 2,012 that do not speak the language and do not have special instruction in English.

Thurgood Marshall:

Is that — isn’t that what this case is all about, that group?

Thomas M. O’conner:

Yes.

Thurgood Marshall:

But why are they not getting it?

Thomas M. O’conner:

I think primarily there is — the main answer is that San Francisco would attempt to cover all if it had be resources with which to do it, that is the inclination of the board of education.

However, they have not moved up on the complete coverage of all theses children because of the other requirements of the budget. I think that’s the answer in simple form.

Thurgood Marshall:

Any other answer, other than like a money?

Thomas M. O’conner:

Of course if required under the constitution to do so, they would, but there is —

Thurgood Marshall:

You don’t think the constitution requires it?

Thomas M. O’conner:

That’s my point, I do not.

I think that this is one of the great purposes of the country education.

What as stated in the decision of this Court in the Rodriguez case, it is not a fundamental right, it is not a fundamental constitutional right so that the great aim and problem and work of school districts and states in the educational field while one of the most important is not one that unless every facet of the problem is covered is one where a person can come into Court and state I am not covered.

Warren E. Burger:

Do you think that you may possibly be running into there are some equal protection problems if you give some Chinese, non-English speaking Chinese training in English and do not give it to others when they are — except for that difference, exactly the same, they are part of a category and identifiable group.

If they can’t speak English they are of Chinese origin perhaps you can address yourself to that right after lunch.

Mr. O’Conner you may resume.

Thomas M. O’conner:

Mr. Chief Justice and may it please the Court.

I believe your question Mr. Chief Justice was, what is the classification between the Chinese students who do receive special English education and those who do not?

The classification in this case if the Court please is something that the original petitioners have made.

It is our position that as a constitutional matter under the Equal Protection Clause, there is no constitutional duty to supply any of the non-English Chinese students, the special courses in the English language.

Warren E. Burger:

But my question was, if you give it to some then does that raise equal protection problems for giving it to all.

Warren E. Burger:

Suppose for example that you gave automobile licenses to one group, but denied it to the others and they are — except for that alike?

Thomas M. O’conner:

These are — as far as education is concerned, these are educational policy questions when they don’t rise —

Warren E. Burger:

Well is there a policy with reference?

Is there a policy that explains why several hundred of them get it and several hundred don’t get it or is it just the accident of the shortage of funds and budget?

Thomas M. O’conner:

Well, it’s the combination of things.

That is one of the factors.

I will advert to what has been talked about.

The immigration problem in San Francisco, it is the increasing number of non-English Chinese speaking students that are coming in.

Warren E. Burger:

How do they pick the ones who are going to get it as distinguished from those who are not going to get it?

Thomas M. O’conner:

There is a certain limit to the number and I have been advised that they are taken into the Chinese Center to determine their ability, but because there aren’t enough teachers and enough classes, it’s really by waiting list.

Warren E. Burger:

Well, is there anything in this record to show how many teachers in the San Francisco system teach, speak both English and Chinese?

Thomas M. O’conner:

I believe not Mr. Chief Justice.

Warren E. Burger:

Well, are you suggesting a shortage of teachers?

I get some intimations of that, the shortage of qualified people to teach?

Thomas M. O’conner:

Well, that is part of the problem of course, especially with the Chinese language to get qualified to teachers.

But of course again with the unlimited resources, that’s a problem that could be surmounted.

I say, it is partly a question of resources of the school district and in California and in San Francisco in particular, the school district is operating to the limit of its budget, so it would mean an reallocation of items to fully staff this program, and of course, I might add that this is one of the competing special educational features which children with other handicaps require attention of the school board as well.

This — it’s been mentioned that the Chinese are suspect classification and there has been a long history of discrimination against the Chinese.

In this connection, I would like to briefly revert or speak about the decision in Guey Heung Lee versus David Johnson in which Mr. Justice Douglas denied the application for a stay after a denial by the District Court and the Circuit Court — the Court of Appeals in this case.

I want to state that this is not — was not a petition by the school district of San Francisco.

It was a petition by some Chinese parents who did not wish to have their children move from the schools in Chinatown to the schools that were provided for them under the integration order in the case that the city and county school district was involved in, that is Johnson against the San Francisco Board of Education.

William O. Douglas:

As I recall, the San Francisco did have a history of de juris segregated school system?

Thomas M. O’conner:

That’s correct Mr. Justice Douglas and that’s what I wanted to talk about.

You mentioned in your decision and correctly, properly and rightly so that under the Education Code of California, there was a provision not repealed until 1947 that that could be provided for Chinese, Japanese and children of Mongolian origin, separate schools and if separate schools were provided, these children could not attend other schools.

Now, I can speak from the experience now of 50 years and research, confirms it that in San Francisco, there has not been a separate school under this statute as far as any children of San Francisco are concerned, including Chinese children.

And it is a fact that the Chinese like the Irish and Italians who first settled around the Chinatown area when they fanned out over the city to the various neighborhoods and went to the neighborhood schools, the Chinese children did so as well.

And I ran across which I think the Court might be interested in, a recent book called “Longtime California: A documentary study of an American Chinatown” by Victor and Barry Nee, and on account of interview with Lee-Lun Chin who is now age 73 and is one of the staff of the Young China Daily, stated that he left San Francisco after the fire and earthquake and went up to a small town under Sacramento River and when his father found that he couldn’t attend a school there, he returned to San Francisco and went to lower high school.

He says, “Well in 1910, my parents sent me back to San Francisco because Orientals weren’t allowed in the schools down there.

I was going to a Lowell High School and there I met some young Chinese students.”

At Lowell High School, we’ve mentioned on our brief was then and is now the Academic High School in San Francisco where as we mentioned in our brief, the Chinese have a greater percentage in that school than their citywide percentages for high school students as the Academic School of San Francisco and in 1910, Mr. Chin went there.

Thomas M. O’conner:

That documents of course what I know to be the fact that the Chinese as with others moved out into the schools of San Francisco.

And to —

Thurgood Marshall:

What about these petitioners in this case?

Thomas M. O’conner:

They are children who attend the schools in Chinatown and the surrounding area as well as other districts of the city —

Thurgood Marshall:

And who aren’t taught anything?

Thomas M. O’conner:

Pardon?

Thurgood Marshall:

And who aren’t taught anything, is that right?

Thomas M. O’conner:

Well, they aren’t taught by special instruction in English.

Thurgood Marshall:

Were they only given English books?

Well, are they, do you say they’ve been taught?

Thomas M. O’conner:

Yes, Mr. Justice.

Thurgood Marshall:

How is a non-speaking English Chinese taught by non-Chinese teaching English person?

How can you teach that word?

Thomas M. O’conner:

I revert and I think to the statement in the — in Meyer versus Nebraska, which of course is the leading case on the question of English in the schools.

And where Mr. Justice Holmes dissented from the opinion, would stated that the best thing for young children and I think he mentioned Poles and Russians who have no English in their homes was to come to the school and not be taught in German as primarily.

Thurgood Marshall:

Well are you teaching these children Chinese?

Thomas M. O’conner:

So that —

Thurgood Marshall:

Are you teaching these children Chinese?

Thomas M. O’conner:

Well, they are being taught those that aren’t covered —

Thurgood Marshall:

Well, Meyer was teaching German.

Well is he teaching Chinese?

If he doesn’t, Meyer doesn’t have anything to do with it.

Thomas M. O’conner:

Well, he stated and I want to follow that up but the best thing for a child who can’t speak a language to do without any special instruction is to come to an English-speaking school.

And I think common experience as well some of the authorities, although, bilingual or special courses are better.

[Voice Overlap] You nevertheless by the immersion process, a child learns to speak and especially a child because it is easier, the authority say for child to learn language by total immersion than other individuals.

Thurgood Marshall:

Do these children get any training in the English language that can be taught to a Chinese-speaking person, the answer is no, isn’t it?

Thomas M. O’conner:

No formal training but I can’t concur in that entirely I think any child who comes to a school and I want to mention that.

Thurgood Marshall:

Do you take if I went to a Chinese school in Peking I’ll learn something?

Thomas M. O’conner:

I think you would.

Thurgood Marshall:

You do?

Thomas M. O’conner:

Yes.

Thurgood Marshall:

Learn what?

Thomas M. O’conner:

I think — it is rather non-fact question, I think you would learn anywhere, but I think that being immersed in that atmosphere where nothing is spoken, but the language around you, from a child’s viewpoint the authorities tell us.

Thurgood Marshall:

Well, why do you waste money on the other schools?

Thomas M. O’conner:

You mean to teach?

Thurgood Marshall:

Yes.

Thomas M. O’conner:

I don’t come here and say that this is the best way.

I think it is the least effective way and that would be better if San Francisco could cover all of its children.

Thurgood Marshall:

But you say it is a little bit effective?

Thomas M. O’conner:

That’s I say it is yes.

Little effective, not to the extent that —

Thurgood Marshall:

And why are these children singled out for that little bit of effective treatment?

Thomas M. O’conner:

Because the program as yet hasn’t covered them, but —

Thurgood Marshall:

Well if — when it reaches the point that it will cover, they will be out of school, won’t they?

Thomas M. O’conner:

They find that children on the waiting list, I have been told is, go back to the school where there is no special language education.

And by the time they get back to number one on the waiting list, they no longer have a need for the special education.

Thurgood Marshall:

Are you violating the guidelines put out by the federal government?

Thomas M. O’conner:

I believe not.

Thurgood Marshall:

Why not?

Thomas M. O’conner:

Title VI of the Civil Rights Act speaks of discrimination on the basis of a race, minority, national origin.

No Chinese-speaking child is discriminated against in any of these courses is — has the same education as others.

He may not be able to benefit by it as much, but it is not up to the HEW to determine what effect this has.

I think if it is not —

Thurgood Marshall:

Oh, you don’t think HEW has that authority?

Thomas M. O’conner:

I think it has the authority, but until it is declared by this Court to be a deprivation of constitutional rights.

Thurgood Marshall:

I didn’t say constitutional rights Mr. O’Conner, I said the guidelines put out by HEW, do you violate those or not?

Thomas M. O’conner:

I believe not, they are — the guidelines adopted in 1970 talks for effective programs for non-English-speaking children.

And in the grants which San Francisco has for instance under Title VII of the Education Act for bilingual program, this is not only a program which HEW gives the funds for to teach this particular — or to help solve this particular problem, but requires that on the basis of Title VI that there be no discrimination and in that program, children of other national origins are included.

The other program as mentioned in the —

Thurgood Marshall:

Well you don’t agree with the Assistant Attorney General at all then, do you?

Thomas M. O’conner:

I do not.

The program under —

Thurgood Marshall:

Well, if he is right, then can we decide this case on that point without reaching the constitutional point?

Thomas M. O’conner:

Yes.

Except that I think this record shows that —

Thurgood Marshall:

Could we?

Thomas M. O’conner:

Yes.

Yes, Mr. Justice.

Byron R. White:

Do you think if the statute itself or the regulations — let’s assume the statute itself expressly said that in order to qualify for grants, the states must undertake training in English language for those who need it such as the Chinese in San Francisco, let’s assume that it said that expressly.

Would you have any doubt about the congressional power to enact that statute?

Thomas M. O’conner:

No, I would not.

Byron R. White:

And —

Thomas M. O’conner:

That would be part of the statute, a direct statement and —

Byron R. White:

Would you think that is — what constitutional power would you consider that to be an exercise of, the spending power to condition of a grant of money on rational conditions?

Thomas M. O’conner:

Yes, under the —

Byron R. White:

But not, I mean it doesn’t have to be valid under Fourteenth Amendment I take it?

Thomas M. O’conner:

No, I would say not.

Byron R. White:

Well, if Congress did say, they have said that and you would think that it constitutionally could, would San Francisco be bound by it in the sense — is San Francisco participating in this grant program so that you would be bound with the statute?

Thomas M. O’conner:

If there was a statute specifically directing this, yes, I would say so.

Byron R. White:

And if we construed the statute or construed the ranks or the guidelines to the same effect, then I suppose we would be — necessarily we would decide against you?

Thomas M. O’conner:

Yes.

Except I think there is a further point whether San Francisco in connection with any grant of moneys in education has not included Chinese children.

And even under Title VI grant for compensatory education for children, the appendix shows that the Commodore Stockton School in Chinatown was included with the special program where the children in that school as part of a poverty area covered by that program.

So yes, except under the circumstances I don’t think even under that construction, San Francisco has violated any guideline.

William J. Brennan, Jr.:

No.

But Mr. O’Conner I gather if Title VI does reach this kind of prop, the funding would be adequate, would it not, to include these plaintiffs as well as those presently being taught in those programs?

Thomas M. O’conner:

No, it would not.

William J. Brennan, Jr.:

It would not?

Thomas M. O’conner:

In fact that San Francisco itself under its own funds in the last fiscal years supplies over 50% of the funds needed before these programs.

William J. Brennan, Jr.:

But if the condition were that all of these plaintiffs as well as the other Chinese children had to be given the benefit of this kind of teaching under Title VI, San Francisco would have to match whatever the federal grant was, would it not?

William J. Brennan, Jr.:

If it didn’t, the federal grant I gather could be withdrawn in its entirety, is that right?

Thomas M. O’conner:

I believe that’s correct.

Warren E. Burger:

Mr. O’Conner let me put this hypothetical question to you and it may shed some light for me.

Let’s start with the assumption that there is no constitutional obligation on the part of the state to furnish any public schools at all.

Assume that for a moment, but then the state and the local government does undertake to furnished schools, but they have enough money to take care only 18,000 children in the primary schools and there are 20,000 and you just put the other 2,000 on the waiting list and say we will work you in when we get enough money in the budget.

Do you think that would give you any equal protection problems?

Thomas M. O’conner:

Yes, I do Mr. Chief Justice.

I think under Brown versus Board of Education that where free public education is supplied, it must be done on an equal basis.

Warren E. Burger:

Well then how do you distinguish that between giving this English language training to a thousand or 1,400 of the Chinese-speaking students and not giving it to 4 or 5 or 800 who are on the waiting list?

Thomas M. O’conner:

I think that this is not part of what may be called minimum basic education.

Warren E. Burger:

To teach the English language?

Thomas M. O’conner:

I think it is. Now I am not admitting Mr. Chief Justice that the English language is not spoken without the special courses, but supposing that is the case, it is extremely important, one of the most important functions of the department to teach these pupils, but there are also other competing and some may say equally important matters that the school department must cover beyond this minimum education, the deaf was mentioned, the mentally retarded, the disabled, I think those are questions that must be left to the discretion of the administrative authorities on the local level.

The state guidance if it be by state statute and that the Court will not decide between priorities and I contend that teaching of English by the special courses is one of these educational priorities.

And I think the point that say a thousand are left out, shows that and in San Francisco the school board has demonstrated that it considers this a highly important matter, but that with a thousand left out as of now, they cannot be covered because they in the estimation of the school board there are equally important special problems to be covered.

Harry A. Blackmun:

Mr. O’Conner if you lose this case, what will happen? Is the city likely to withdraw all special instruction to all Chinese?

Thomas M. O’conner:

I cannot answer that Mr. Justice Blackmun, except to state that as of now the city is covering over 50% of the $2.7 million that is now spent on this program.

William J. Brennan, Jr.:

Well, Mr. O’Conner I noticed in the Mr. Pottinger’s brief at footnote 4, at page 12, this I think has a connection with Mr. Justice Blackmun’s question.

It stated that you’re already obligated by contract.You comply with both the regulations and guidelines.

You contractually agreed to comply with Title VI and all requirements imposed by HEW and immediately to take any measures necessary to effectuate this agreement and Mr. Hahn recites at a case some to county school district for this proposition that that contract is a binding and specifically enforcible, is that so?

Thomas M. O’conner:

Yes, no question about it.

William J. Brennan, Jr.:

Well, if that is so I don’t [Attempt to Laughter] — I suppose so long is that contract is effective, San Francisco is not at liberty to pull out of the program, is it?

Thomas M. O’conner:

No, it wasn’t applied by all valid regulations.

William J. Brennan, Jr.:

Can you terminate the program at any time, your participation in this?

Thomas M. O’conner:

Not under a —

William J. Brennan, Jr.:

You have a contract.

Thomas M. O’conner:

— contract of this sort.

Byron R. White:

Well, you could withdraw it, you could withdraw it?

Thomas M. O’conner:

If it’s withdrawn —

Warren E. Burger:

At the end of the year, at the end of the period?

Thomas M. O’conner:

Depending upon the terms of the contract?

William J. Brennan, Jr.:

Well, do you know what those terms are under those contracts?

Warren E. Burger:

I haven’t specific information, but it is a grant terms, I presume.

William J. Brennan, Jr.:

Which should be annual or something?

Thomas M. O’conner:

They are annual and I understand that the funding by the federal government under Title VII expired as of the end of this fiscal year.

So that there are no more federal funds available under the Title VII bilingual program participation.

The question has been of discrimination and past history of discrimination and my adverting to the opinion was to admit of course that there is — was education 3007, but San Francisco has not followed that for 50 years.

And also I have to point out that as mentioned earlier, it is our view that it has not anything to do with discrimination in any respect that all of the Chinese children are not covered.

It is directly the — involved with the recent immigration of Chinese from — into the United States.

Our briefs document not only the change of Immigration Act of 1968, would point out also that under President Kennedy’s program earlier, the refugees from Hong Kong came into San Francisco and just to illustrate in the interrogatories which were answered by the school district in 1970, it said immigrants who arrived in this country between September 1968 and September 1969, got the children to the schools, those were the interrogatories, answer 691 covering only three schools in the Chinatown area.

Immigrants who arrived in this country between September 1969 and — since September 1969 answer at page 57 538.

So there has been a tremendous influx of immigrants and their children into the United States in the last year which has been the cause of this problem and it has nothing absolutely to do with the historical discrimination against —

Harry A. Blackmun:

Then you disagree with the Professor’s suggestion that there were as many unprivileged back in 1967 as there are now?

Thomas M. O’conner:

As many unprivileged?

Harry A. Blackmun:

Yes, who are not receiving English instruction?

His point, I thought made three times was this is not attributable to the relaxation of the immigration requirements, you disagree with that?

Thomas M. O’conner:

Yes, I do.

Potter Stewart:

Mr. O’Conner, have there been any demands upon the San Francisco school system to conduct any classes in the Chinese language?

Thomas M. O’conner:

Demands on the school department?

Potter Stewart:

Yes, by these people or similarly situated people?

Thomas M. O’conner:

Back to the Him case, the main reason — one of the main reasons why the parents in Chinatown didn’t wish their children to move from their neighborhood schools and incidentally the order of the Court has gone into effect and the schools — the three neighborhood schools with the predominantly Chinese students are now in 13 schools in a much larger area.

Their main reason was that they would not be — one of the reasons alleged was they would not be close to the Chinese schools which were operated not by the school department, but by the Chinese community.

As far as I know there are never been any demands upon the department itself to teach Chinese.

Potter Stewart:

I mean to teach classes, teach arithmetic or whatever in the Chinese language, that’s what I’m asking about, not to teach the Chinese language, but to teach the school in the Chinese language —

Thomas M. O’conner:

The bilingual —

Potter Stewart:

— or geography or social studies or whatever?

Thomas M. O’conner:

The limited bilingual program in San Francisco is designed to teach in Chinese until the child reaches a level where he can progress into the English language.

So in that sense, certain subjects are taught by bilingual teachers to Chinese-speaking children in Chinese.

Potter Stewart:

In those — in the schools located in the Chinatown area of San Francisco have, in the past any classes been taught in Chinese?

Now I’d again, I don’t mean teaching the Chinese language, I mean teaching arithmetic in Chinese?

Thomas M. O’conner:

Traditionally, the Commodore Stockton and other two children — the other two schools in Chinatown have been predominantly Chinese schools with Chinese students, that’s 80%, 90%.

Potter Stewart:

And by Chinese I expect you mean, as been understood here, actually Americans of Chinese descent?

Thomas M. O’conner:

Right.

Potter Stewart:

That is, most have been?

Thomas M. O’conner:

Yes.

And once again I don’t have statistics, but I have knowledge of this where there was such a mingling of the Chinese in that school by teachers who not only spoke Chinese, but students who not only spoke English and Chinese that there was in effect a bilingual atmosphere whereby English was learned by those who could not speak it.

Potter Stewart:

And is that now disappearing because of the school desegregation orders?

Thomas M. O’conner:

I cannot say that myself as of fact, but the 80% and 90% concentration in the neighborhood schools in Chinatown has — is not there anymore.

It is a — more like a percentage of the 50% whereas in the schools in surrounding areas — surrounding area, in a zone are from 15% to 20% Chinese.

So the problem say of getting the course in one place rather than having it spread out has been — is made more difficult.

Lewis F. Powell, Jr.:

Mr. O’Conner, may I ask you one question?

What is your position with respect to the memorandum of HEW of July 10, 1970?

That’s a memorandum that is addressed specifically to this problem?

It’s at the top of the page, on page 12 of SG’s brief, it has been alluded to in this argument?

Thomas M. O’conner:

My position is that this regulation states that it is under Title VI of the Civil Rights Act of 1964.

I believe it is beyond the scope of the authority given in that statute and that Title VI does not purport to go into programs for teaching those who have language disability.

And that school authorities are in no position to know what this regulation means at the time that they obtain the grant.

And it’s indefinite and beyond the scope, that the regulation is indefinite, but it is an indefinite application of the limits of authority which are covered by Title VI.

Warren E. Burger:

I think your time has expired Mr. O’Conner.

Thank you.

Mr. Steinman, one practical problem that may or may not to be lurking in this case.

I gather that there are at least three and perhaps more major Chinese dialects spoken in such form that the person from one area of China can barely communicate with another.

What is the obligation of the state? Must they have classes in the Cantonese dialect and then some other dialect?

Edward H. Steinman:

I think that what has been happening, Your Honor, is that the Court is focusing only one possible method, that would be a bilingual method where the teacher speaks Chinese as well as English.

In San Francisco —

Warren E. Burger:

Which Chinese?

Edward H. Steinman:

— method most commonly employed —

Warren E. Burger:

Which Chinese dialect?

Edward H. Steinman:

Well, it’s a problem which the City has never alluded to.

I don’t really know about particular dialect.

In San Francisco, most of the Chinese-speaking students who are receiving help not included within the 1,800 petitioners are receiving the help in a method called English as the Second Language in which the teacher does not speak Chinese.

Edward H. Steinman:

In which the teacher employs special methods, it is almost like a lips type of approach, the teacher employs special methods.

The point that we are raising is that what method to utilize a decision for the school system.

The problem that the 1,800 students face is that today they are receiving nothing, just regular instruction.

In response to Mr. Justice Blackmun’s comment about whether or not there is any record concerning this is a problem of recent origin, let me just cite that, at page 45 of the appendix, the respondents admitted in November of 1967, seven months before the immigration relaxation came about, and again there is no dispute that the numbers have been increased because of immigration relaxation, but seven months before the Immigration Code has even came in to effect, the respondents submitted 19 — pardon me, 1,982 non-English-Chinese speaking students were in San Francisco public schools needing special instruction, not understanding the language of instruction and getting nothing.

And what — my point is that the school system has long known, the record shows that it is as far back as 1949, the school system made statements on this, again it’s in the appendix, the school system knows if these students don’t know English.

The school system admits and knows that they cannot learn English sitting and languishing in their regular classrooms.

The school system concedes the harsh —

Byron R. White:

Sooner or later they will learn to communicate, but not very well —

Edward H. Steinman:

That is something which is debatable, Your Honor.

The school system has never even said that the students will learn to use Mr. O’Conner’s words, by immersion.

There is no contention by the school system that if they sit in this classes they will learn.

William J. Brennan, Jr.:

Well, do we know that those now getting the instruction, do they learn English?

Edward H. Steinman:

Those getting the special help, yes.

We are not disputing what the method that could be used.

William J. Brennan, Jr.:

Do those programs succeed?

Edward H. Steinman:

I am not an educator.

My understanding is that they do succeed.

Our point is that we want the school system to use some method because right now Mr. Justice White, the school system admits that if no method is employed these students are “inevitably be going to be dropouts.”

Now we contend that —

Byron R. White:

Well, hasn’t been what your colleague there said a little while ago, he said it was effective?

Edward H. Steinman:

Well I am citing the appending pages 103 to 104, Mr. O’Conner as I believe are making statements that are not reflected by the record.

The school system has admitted even before this lawsuit was brought that these students cannot learn, that they are inevitably doomed, that they are frustrated by their inability to understand the regular word, that is a quote that appears at the appendix page 101.

Our contention is that this system is just totally irrational.

That a school system which states that its purpose is to provide education opportunities, which states that its purpose is they have student develop a mastery of English, provides 1,800 students, a program which guarantees that they will not learn this.

Mr. O’Conner says today the situation as such that 1,445 students are affected.

I am not going to get into that type of issue.

If the Court wants further data in the current situation I will be glad to provide it.

My understanding is even more, but even today, the Court concedes there are — the respondents concede that there are close to 1,450 students, who languish in classes and do not even get the type of education which the respondents and their publications of course state is their goal.

William J. Brennan, Jr.:

Mr. Steinman, may I just change the subject a second. I notice at 4 (a) and 5 (a) of your brief, is this contract, Title VI contract, which apparently dates back to 1965.

How does the school district get out from under that one?

Edward H. Steinman:

My understanding is that — I just checked with Mr. Pottinger that this — the school system at the end of a given contract year can refuse to, you know, can say we don’t wish to participate anymore.

The problem that we face and clearly in this Court, we are claiming it as a statutory violation.

The problem that we are facing is that they are obviously federal funds can be pulled out that Mr. O’Conner alluded to.

Obviously, San Francisco can choose not to go into a federal program and then what happens to these students.

As we’ve said, we think that the respondents own stated —

William J. Brennan, Jr.:

Well, I gather at least [Attempt to Laughter] the breadth of this contract would indicate that you can’t get out of a particular program, but you got to get out of all programs.

All Title VI programs are covered by this contract.

Edward H. Steinman:

Mr. Pottinger agrees with the interpretation.

William J. Brennan, Jr.:

And San Francisco couldn’t just drop this one, it would have to drop all funded programs, wouldn’t it?

Edward H. Steinman:

That’s right and as Mr. O’Conner said he does not know what they would do.

William J. Brennan, Jr.:

Well, practically how much of a Title VI programs are there.

Just how much practically is, is that a problem?

Well, what you’re getting at is you want us to decide the constitutional question.

What I am putting to you, why should we, if we can decide this on the statute?

Edward H. Steinman:

Your Honor, I’m just saying that the possible problems in the future which the Court if it does not wish to address now, need not.

William J. Brennan, Jr.:

Well, [Attempt to Laughter] why can’t we wait till they arise if the statute protects it, covers this?

Edward H. Steinman:

If that is the Court’s wishes naturally.

Well, we are asserting that —

William J. Brennan, Jr.:

Don’t we usually?

Edward H. Steinman:

My understanding that in some cases, especially cases where you have national origin type of problems, race problems, some of this segregation cases that this Court when faced with a combined statutory, constitution argument has chose not to. Naturally this is something for the Court to decide.

We are dealing with the national origin group.

Byron R. White:

Do you remember one of those?

Edward H. Steinman:

My understanding that some of the segregation case was raised in the late 60’s involved both complaints under Civil Rights Act as well as constitutional.

Byron R. White:

Can you give me an example?

Edward H. Steinman:

I cannot give you one.

Warren E. Burger:

I gather an intimation from what you said that as a practical matter, the State of California or any particular school district could not afford to withdraw totally from federal programs.

That is their losses would be far more than their gains even if the result was that they did not need to run any special schools.

Edward H. Steinman:

I would guess that would be true.

I think there is one other point that when you —

Warren E. Burger:

Do you know off-hand what in millions of dollars how much California is getting under these programs?

Edward H. Steinman:

No, I don’t know off-hand.

I know that San Francisco —

Warren E. Burger:

It must be a very large sum of money?

Edward H. Steinman:

Yes.

And San Francisco is receiving large sums of money for the programs that it is now operating.

Warren E. Burger:

Lastly, more I should assume than the $2 million they are now spending for the second language program.

Edward H. Steinman:

Well, the $2 million is for all non-English-speaking students in San Francisco.

The Chinese it is — for the petitioner, the Chinese speaking people it’s much less.

One thing which I think that the Court should be aware of is that right now or currently, based on the facts in the record from 1970, the school system in San Francisco is spending an average of $1,300.00 per child.

The figure is now close to $2,000.00 per child and for 1,800 students right now, this money is being wasted.

San Francisco is spending money on these petitioners.

We are not denying that.

They are spending money to put them in regular classrooms.

They have a teacher to be paid, etcetera and right now, the school system is wasting millions of dollars and this is one of the responses that we have in that it’s not a medical school system,suddenly going to have to come up with all this money, but they are now spending moneys from which students are receiving no types of benefits.

Mr. Pottinger has given me a figure, Your Honor that currently I guess this is all title — all moneys under HEW for San Francisco schools is $11 million in San Francisco.

Potter Stewart:

Mr. Steinman, would your constitutional grievance be met if the classes were conducted for these 1,800 children in Chinese,if they went to school where they could learn manual training and arithmetic and domestic science and —

Edward H. Steinman:

If the school system feels, Mr. Justice Stewart, that the most effective way for these children to gain a master of English is to teach them only in Chinese then I would have — I would abide by the decision.

The fact of the matter is that there is no program further that I know of which immerses the child only in his own language to learn another language.

The bilingual program uses both languages, the teacher has the facility in both languages.

Potter Stewart:

I am just asking about your constitutional grievance?

Edward H. Steinman:

So long as the children would not be effectively excluded from having understanding the instructions given in other courses, my constitutional grievance I think might be settled.

Now if their entire program, it was going to be in Chinese for 12 years, that is something else because California says that it could not be under California laws.

Potter Stewart:

Well but let’s — we are talking about your constitutional grievance, not about the California law?

Edward H. Steinman:

If they were just taught Chinese —

Potter Stewart:

Just taught in Chinese.

Edward H. Steinman:

I would think that they would then probably have a constitutional grievance if they wished to be taught what other students in California are being taught, that is in the language — English language —

Potter Stewart:

(Inaudible) Theory, educational theory around and sometimes at least by people taking extreme position sometimes caused in — cause the terms or because of the Constitution that it’s wrong to homogenize everybody.

It’s wrong to destroy the culture and the traditions of various groups, be they American-Indians or Chinese or American-Negroes or whoever that it’s incumbent upon the schools for example to conduct classes in the vernacular of the so-called ghettos where American-Negroes live rather than in the kind of English that you and I are speaking to each other hopefully.

Edward H. Steinman:

I believe what you are alluding to sir is bilingual programs where the —

Potter Stewart:

No, I’m not, I’m not.

Edward H. Steinman:

Pardon me then, I’m sorry.

Potter Stewart:

And I wondered if there might not be alternative answers therefore to your constitutional grievance.

Edward H. Steinman:

The alternative answers would be within the methods and programs devised by the school system.

All we want the school system to do is provide programs which would meet the, right now, effective exclusion.

If the school system chooses that type of program and it turns out to be effective, then we will not complain.

We are not asking this Court to choose one method over another.

Potter Stewart:

It might be a little hard to teach Shakespeare or Charles Dickens in Chinese, might it not?

Edward H. Steinman:

I think it would be and I think that is where the bilingual program, the English aspect is utilized.

Thank you very much.

Warren E. Burger:

Very well, thank you gentlemen.

The case is submitted.