Keeley Tatsuyo Hunter, a Minor, by Gina F. Brandt, Her Mother and Next Friend v. The Regents of the University of California, and Theodore R. Mitchell , 190 F.3d 1061 ( 1999 )

Opinion by Judge PREGERSON; Dissent by Judge BEEZER.

PREGERSON, Circuit Judge:

I.

This case is about an elementary school operated as a research laboratory by UCLA’s Graduate School of Education and Information Studies. The Corinne A. Seeds University Elementary School (“UES”), and its research and training mission is to help the State of California meet the needs of a dramatically changing public school population. To this end, UES identifies issues relevant to the education and social development of children in multicultural, urban communities, conducts research on these issues, and develops innovations in teaching based on this research. UES shares its research results with public school teachers throughout the State of California through seminars, workshops, teacher training programs, and published articles.

Each year, UES’s Admissions Committee, under the direction of the Dean of the Graduate School of Education and Information Studies and the Director of UES, determines what characteristics are needed in UES’s 460-student population to fulfill its research and training mission. UES considers gender, race/ethnicity, and family income in its admissions process to obtain the desired student population. In selecting students, UES also considers other factors that might affect a child’s suitability as a research subject, e.g., dominant language, permanence of residence, and parents’ willingness to comply with UES’s mandatory involvement requirement. Parents of students applying to UES are informed of UES’s consideration of race/ethnicity, gender, and family income in admissions.

Richard Hunter and Gina Brandt’s older daughter Cia was admitted into UES through its admissions process. Apparently pleased with Cia’s experience at UES, in 1995, the year after Cia graduated, they sought to enroll their younger daughter, Keeley. Keeley was not selected for admission.¹ When notified that their daughter had not been admitted, Keeley’s parents sued the Regents of the University of California (“Regents”) under Title VI of the Civil Rights Act of 1964, 42 U.S.C. section 2000d, and Dr. Theodore Mitchell, Dean of the Graduate School of Education and Information Studies, under 42 U.S.C. section 1983.² The suit challenges the constitutionality of UES’s admissions process.

The district court conducted extensive hearings on the school’s purpose, its research, and its admission process, and ultimately ruled in its favor. The district court found that (1) California had a compelling state interest in operating a research-oriented elementary school dedicated to improving the quality of education in urban public schools, and (2) UES’s consideration of race/ethnicity in its admissions process was narrowly tailored to further that interest. We affirm.

II.

The Equal Protection Clause of the Fourteenth Amendment prohibits a state from “denying] to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. The Supreme Court has said that “any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny.” Adarand Constructors, Inc., v. Pena, 515 U.S. 200, 224, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). To meet the strict scrutiny test, the Regents must demonstrate that UES’s consideration of race/ethnicity is narrowly tailored to serve a compelling governmental interest. See id. at 227, 115 S.Ct. 2097.

The district court’s conclusion that UES’s admissions procedures meet the strict scrutiny test is based on extensive findings of fact which we review for clear error. See National Ass’n of Radiation Survivors v. Derwinski, 994 F.2d 583, 587 (9th Cir.1993). After reviewing the entire record, we conclude that Judge Kenyon’s findings of fact were not clearly erroneous.

The district court’s conclusions regarding the sufficiency of those facts in meeting strict scrutiny is a mixed question of law and fact which we review de novo. See id. We conclude, as did the district court, that the facts demonstrate that the defendants have met the strict scrutiny test.

III.

In applying the strict scrutiny test to UES’s use of race/ethnicity as a factor in its admissions process, we first consider whether California’s interest in the operation of a research-oriented elementary school dedicated to improving the quality of education in urban public schools is a compelling state interest,³

“[Ejducation is perhaps the most important function of state and local governments.” Brown v. Board of Education, 347 U.S. 483, 493, 74 S.Ct. 686, 98 L.Ed. 873 (1954). The Supreme Court has recognized “ ‘the public schools as a most vital civic institution for the preservation of a democratic system of government.’ ” Plyler v. Doe, 457 U.S. 202, 221, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) (quoting School Dist. of Abington Township v. Schempp, 374 U.S. 203, 230, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (Brennan, J., concurring)); see also Wisconsin v. Yoder, 406 U.S. 205, 213, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (“Providing public schools ranks at the very apex of the function of a State”).

The district court heard extensive expert testimony on current problems in public urban education. The challenges posed by California’s increasingly diverse population intensify the state’s interest in improving urban public schools. Cultural and economic differences in the classroom pose special problems for public school teachers. In his decision, Judge Kenyon noted that defendants presented “an unex-haustive list of such issues and challenges [that] includes limited language proficiency, different learning styles, involvement of parents from diverse cultures with different expectations and values, and racial and ethnic conflict among families and children.” Dr. Mitchell,⁴ who testified as an expert witness, stated that “[t]here is no more pressing problem facing California, or indeed the nation, than urban education; for it is in the urban school system that the majority of California’s future citizens will be educated (either well or poorly), creating the basic fabric for the society of the future.”

UES is dedicated to providing more useful and more accurate information to educators facing these challenges. Dr. Deborah Stipek,⁵ director of UES, testified, “[t]he current mission of UES is to do research relevant to ... urban education and to disseminate that research to promote more effective education for children in urban schools.” As part of its research mission, UES exchanges information with the State Department of Education as well as other California educational policy groups; trains teachers; develops and tests innovative teaching strategies; and disseminates study results nationwide.

Dr. Mitchell also testified that “[t]he dynamic interplay of ... research, dissemination, professional development, and the training of an ever-expanding cadre of researchers dedicated to finding] the answers to the perplexing problems facing urban schools ... makes UES a unique and powerful instrument in meeting the State’s fundamental obligations to the children of its cities.”

Given this record, the district court concluded, and we agree, that “the defendants’ interest in operating a research-oriented elementary school is compelling.” ⁶

The dissent expresses some concern that, as a result of our decision, “every stratum of a state’s public education system (whether formally designated a ‘laboratory school’ or not) may now in the name of ‘research on effective educational strategies’ implement a racially classified admission system.” Infra at 1075. We do not share this concern.

It is not UES’s designation as a laboratory school that justifies its admission process. UES’s status as a laboratory school with a research mission is not a designation without substance. UES’s research is funded in part through federal and private grants and its students are protected by all federal, state, and university guidelines, rules, and policies pertaining to research involving human subjects. Research results are shared through “a variety of publications, the television and film industries, computer technologies, and other media,” as well as through “seminars, workshops, observation opportunities, and conferences” offered to teachers, administrators, researchers, and educational policy makers. Its research mission and its dissemination of information makes UES “a center for the education and training of teachers and educational leaders.” Through UES, “nationally recognized scholars work together with educators and administrators to foster a better schooling system for California children.”

Nor does UES’s stated mission of “educational research” justify its admissions process. A mere statement from a governmental entity that it is committed to research, without more, would not be sufficient to establish a compelling interest. But research is fundamental to the UES’s charter. The research mission affects the day-to day experience of its students and requires more resources than those available to most, if not all, other elementary schools. In 1995, UES’s elementary school, with its population of 460 students, had a faculty of twenty-seven professors with doctorates in fields including psychology, education, and medicine. In addition, twenty-one graduate, doctoral, and postdoctoral students, three medical students, thirty-two nursing students, and seventy-five undergraduate student teachers were involved with the elementary school, observing, working with students, and conducting research.

All of these characteristics make UES an exceptional school and a valuable resource to California’s public education system. Consequently, we do not share the dissent’s concerns that this decision will lead to racial classification in “every stratum of a state’s public education system.” Infra at 1075.

IV.

To complete our strict scrutiny analysis, we next address the question whether the district court correctly concluded that “[t]he defendants have successfully proven that the use of racial and ethnic identity criteria in UES’s admission policy is narrowly tailored to serve the purpose of a compelling state interest.” (Emphasis added.) In support of this conclusion, the district court pointed to “a parade of experts [who testified] about the necessity of a race-conscious admission policy at UES. Each expert’s testimony was underscored by the belief that the State must ‘continue to conduct research on issues involving how children learn and how we can do a better job of teaching them.’” (quoting Dr. Harry Handler’s⁷ testimony).

Dr. Carollee Howes⁸ testified that “[t]here is a simple rule about being a researcher_ If you’re trying to find a sample that has some [particular] distribution of race, you use race as the variable to make that. You don’t use an approximation or some variable of it.” Dr. Stipek further testified that “even if the applicant pool in the aggregate [was] sufficiently diverse, an entirely random selection would not yield a population that balances ethnicity with other factors, such as age, gender and family income.” Dr. Handler also testified that “[b]ecause of the small sample size, it is highly unlikely that such a small group, if selected without some explicit consideration of race/ethnicity, would be representative of Los Angeles’ or the State’s urban school population.”⁹

The district court commented on the testimony presented:

The Court simply cannot hope to recount each of the particular innovative educational techniques developed at UES, or each of the specific studies conducted at UES, which rely on the diversity of the laboratory school’s student population. Having examined the testimony of the defendants’ witnesses, the Court is convinced that without a racially and ethnically diverse student population, the benefits to be gained by these innovations and studies would be lost.

Accordingly, the district court concluded that “it would not be possible, nor would it be reasonable, to require the defendants to attempt to obtain an ethnically diverse representative sample of students without the use of specific racial targets and classifications.”

The dissent suggests a number of alternatives to UES’s current admissions process. These alternatives range from locating laboratory schools elsewhere to mandating laboratory conditions in public schools throughout California. See infra at 1077. But both Dr. Stipek and Dr. Handler testified that it was necessary to explicitly consider race/ethnicity in UES’s admissions process to achieve the precise student population required for UES’s research.¹⁰ Therefore, even if California were to establish one or more other lab schools elsewhere, this would not address UES’s need to maintain the representative sample of students UES needs to fulfill its research mission.

Finally, in evaluating whether UES’s use of race/ethnicity in its admissions process is narrowly tailored, we recognize, as did the district court, that courts should defer to researchers’ decisions about what they need for their research.¹¹ The Supreme Court. has stated: “Courts have stressed the importance of avoiding second-guessing of legitimate academic judgments. This Court itself has cautioned that ‘judges ... asked to review the substance of a genuinely academic decision ... should show great respect for the faculty’s professional judgment.’ ” University of Penn. v. EEOC, 493 U.S. 182, 199, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990) (internal quotation marks and citation omitted).

Based on the evidence in the record, we agree with the district court’s determination that UES’s use of race/ethnicity in its admissions process is narrowly tailored to achieve the necessary laboratory environment.

V.

In short, UES is a research-oriented institution dedicated to developing effective techniques for use in urban public schools-a project that benefits public school children throughout the state. California has a compelling interest in providing effective education to its diverse, multi-ethnic, public school population. UES’s use of race/ethnicity in its admissions process is narrowly tailored to achieve the necessary laboratory environment to produce research results which can be used to improve the education of California’s ethnically diverse urban public school population.

AFFIRMED.

1 . There is no suggestion that any different admission procedures were employed in the process resulting in Keeley’s rejection than in Cia’s earlier acceptance.

2 . Keeley was four years old when the suit was initiated. Gina Brandt brought the suit as Keeley’s “mother and next friend,” and Kee-ley is represented by her father, Richard Hunter, attorney at law.

3 .The parties agree that UES's admission’s process is not part of a remedial program.

4 . The district court accepted each of the defendants' witnesses as an expert in their field. Dr. Mitchell received a Ph.D. from Stanford University in 1983. He served as chair to Dartmouth's Department of Education, and Deputy to the President of Stanford University before becoming Dean of UCLA’s Graduate School of Education in 1992. He has published numerous scholarly articles on education and school reform.

5 . Dr. Stipek also testified as an expert witness. She received a Ph.D. in developmental psychology from Yale University. She has published numerous articles oh early childhood and elementary education. She has been with the Graduate School of Education and Information Studies since 1977.

6 . The appellant argues that only an interest in remedying past discrimination can justify UES use of race/ethniciiy as one of a number of factors in its admissions process. We disagree. The Supreme Court has never held that only a state’s interest in remedial action can meet strict scrutiny. In fact, in Miller v. Johnson, 515 U.S. 900, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995), the Court expressly left open the question whether "compliance with the [Voting Rights] Act, standing alone, can provide a compelling interest independent of any interest in remedying past discrimination.” Id. at 921, 115 S.Ct. 2475 (emphasis added). The Court in Shaw v. Hunt followed Miller and left this question open: "In Miller, we expressly left open the question whether under the proper circumstances compliance with the Voting Rights Act, on its own, could be a compelling interest. Here once again we do not reach that question...." Shaw v. Hunt, 517 U.S. 899, 911, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996) (internal citation and parenthetical omitted).

In addition, contrary to the dissent’s assertion, this court has not "held that ‘[r]ace based classifications must be reserved strictly for remedial settings.’ ” Infra at 1071 (quoting Coral Construction v. King County, 941 F.2d 910, 920 (1991)). Rather, this court held that where the asserted state interest is remedying past discrimination, this remedial interest must be supported by concrete evidence of discrimination. See id; see also Monterey Mechanical v. Wilson, 125 F.3d 702, 714 (9th Cir.1997) (same). In Coral and Monterey, this court simply followed the Supreme Court's decision in City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989), which required a "strong basis in evidence" for race-based remedial action. These holdings have no bearing on the question whether a non-remedial interest, such as the operation of a research-oriented elementary school dedicated to improving the quality of education in urban public schools, can serve as a compelling interest sufficient to survive strict scrutiny.

7 . Dr. Harry Handler has a Ph.D. in Educational Psychology from the University of Southern California, and, at the time of his testimony, was Adjunct Professor and Special Assistant to the Graduate School of Education and Information Studies. Dr. Handler was Superintendent of the Los Angeles Unified School District for seven years.

8 . Dr. Howes has a master’s degree in child study from Tufts University, a Ph.D. in developmental psychology from Boston University, and post-doctoral training in social psychiatry at Harvard University. Dr. Howes has published books, treatises and studies in her field including a series on child care policy studies.

9 . In 1995, there were 46 students admitted to the Early Childhood Program. Consequently, each child made up 2.2% of the class.

10 . "We cannot have a subject sample that does not have meaningful distribution of ethnicity and still meets the scientific standards that we are held to.... Otherwise, you can’t do research there.” Dr. Stipek's Trial Testimony for April 9, 1997.

11 .No one would challenge a decision of UCLA medical school to explicitly consider ethnicity in selecting study participants for research on Gauchers disease or Tay-Sachs-diseases that occur predominantly in the Jewish population. Nor would anyone have a problem with a study on the effects of nutrition in the prevention -of sickle-cell anemia that limited study participants to Black children. Nor would anyone object to a similar study of pernicious anemia that limited participants to older persons of Northern European descent. The National Institute for Health is currently calling for grant applications for research investigating why prostate cancer occurs with greater frequency in white and black men than in Hispanic and Asian men.