through her parent and next friend,

and

J.W.P., through her parent and

through his parent and next friend;

through his parent and next friend;

CALIFORNIA LATINO CIVIL RIGHTS

þ

LEADERSHIP CONFERENCE OF

v.

her official capacity as the State

Superintendent of Public

þ

Appeal from the United States District Court

for the Northern District of California

Charles A. Legge, District Judge, Presiding

Argued and Submitted

March 14, 2002—San Francisco, California

Filed October 7, 2002

Circuit Judges, and John W. Sedwick, District Judge.*

Opinion by Judge Tashima

*Honorable John W. Sedwick, United States District Judge for the Dis-trict

of Alaska, sitting by designation.

Thomas A. Saenz, Mexican American Legal Defense and

Educational Fund, Los Angeles, California, for the plaintiffs-appellants.

Donald P. Cole, Deputy Attorney General, Sacramento, Cali-fornia,

for the defendants-appellees.

Sharon L. Brown, Pacific Legal Foundation, Sacramento, Cal-ifornia,

for intervenor-appellee Sarina Frias.

TASHIMA, Circuit Judge:

On behalf of a class of California public school students

and their parents, Angel V. appeals from the district court’s

judgment, entered after a bench trial, dismissing plaintiffs’

claim that California’s Proposition 227, which replaces bilin-gual

education programs with a curricular program designed

to teach students in English, facially violates the Equal Pro-tection

Clause of the United States Constitution. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

On June 2, 1998, California voters approved Proposition

227 by a margin of 61 to 39 percent. Declaring that "[t]he

government and the public schools of California have a moral

obligation and a constitutional duty to provide all of Califor-nia’s

children . . . with the skills necessary to become produc-tive

members of our society, and of these skills, literacy in the

English language is among the most important," Proposition

227 dismantled California’s public school bilingual education

programs, which taught limited English proficient ("LEP")

students in their native language.

of "structured English immersion," in which children are

"taught English by being taught in English."

The initiative

provides that LEP students of similar English proficiency be

taught together and that "[c]hildren who are English learners

shall be educated through sheltered English immersion during

a temporary transition period not normally intended to exceed

one year." Once LEP students become proficient in English,

they are transferred into mainstream English language class-rooms.

Proposition 227 allows LEP students to receive waivers

from English immersion in three circumstances: (i) when the

student already knows English; (ii) when the student is 10

years old or older and the school agrees that an alternative

curriculum would better serve the student’s English educa-tion;

or (iii) when the student has tried the immersion program

for at least 30 days, the school agrees "that the child has spe-cial

physical, emotional, psychological, or educational needs,"

and an alternative curriculum would better serve the student’s

educational development. Students who qualify for waiver

"may be transferred to classes where they are taught English

and other subjects through bilingual education techniques or

other generally recognized educational methodologies permit-ted

by law."

Under no circumstances, however, can a student

receive a waiver without parental consent.

acquisition process for young children in which nearly all classroom

instruction is in English but with the curriculum and presentation designed

for children who are learning the language." The initiative, however, does

not prescribe a specific curricular program to be used during this year of

"immersion."

school, that school is required to offer a class in which the students are

taught English and other subjects through bilingual or other alternative

educational techniques.

which it can be amended: "The provisions of this act may be

amended by a statute that becomes effective upon approval by

the electorate or by a statute to further the act’s purpose

passed by a two-thirds vote of each house of the Legislature

and signed by the Governor."

The day after Proposition 227 passed, plaintiffs filed this

action.

Plaintiffs moved for a preliminary injunction to enjoin

1007 (N.D. Cal. 1998). After trial, the district court entered

judgment in favor of defendants. Plaintiffs timely appeal.

Inc. v. City & County of San Francisco, 253 F.3d 461, 466

1997). A district court’s determinations of questions of law

and mixed questions of law and fact that implicate constitu-tional

Hotel Co. v. Wei-Chuan Inv., 189 F.3d 1017, 1024 (9th Cir.

1999).

We must decide whether the elimination of bilingual educa-tion

in California’s public schools by Proposition 227, which

also mandates that any future change in how English is taught

to LEP students requires state-wide action, violates the Equal

Protection Clause.

Act of 1974, Title VI of the Civil Rights Act of 1964, the Suprem-acy

Clause, and the Equal Protection Clause of the Fourteenth

Amendment. Subsequently, however, plaintiffs filed their Second

Amended Complaint, which retained only the equal protection claim.

the government has classified individuals on the basis of

impermissible criteria. While most laws classify individuals in

one way or another, legislative classifications typically sur-vive

judicial scrutiny so long as they are rationally related to

Living Ctr., 473 U.S. 432, 440 (1985). However, gov-ernmental

Constructors, Inc. v. Pena, 515 U.S. 200, 230 (1995), or that

are facially neutral but motivated by discriminatory racial pur-pose,

Washington v. Davis, 426 U.S. 229 (1974), are subject

to strict judicial scrutiny.

[1] Under this conventional approach, Proposition 227 eas-ily

avoids the application of strict scrutiny. Nowhere does the

text of Proposition 227 explicitly mention racial minorities

generally, or any racial minority in particular. Rather, the ini-tiative

merely provides that "children in California public

schools" shall be taught in English. Furthermore, the record

is devoid of any evidence that Proposition 227 was crafted

from racial animus.

Plaintiffs, however, assert a constitutional violation

grounded in "political structure" equal protection analysis.

Sch. Dist., 458 U.S. 457 (1982), plaintiffs contend that Propo-sition

227 unconstitutionally restructures the political process

by placing decision-making over bilingual education, and

only bilingual education, at the state-wide level.

over the formulation of educational policy:

[T]here is a need to establish a common state curriculum for the

public schools, but that, because of economic, geographic, physi-cal,

political and social diversity, there is a need for the develop-ment

of educational programs at the local level . . . . [I]t is the

intent of the Legislature to set broad minimum standards and

amendment requiring that housing ordinances, which regu-lated

real estate transactions "on the basis of race, color, reli-gion,

national origin, or ancestry," be approved by a majority

of city voters (rather than simply by the city council). 393

U.S. at 387. This law disadvantaged those who would benefit

from laws barring racial discrimination in the real estate mar-ket

as opposed to those who would benefit from other regula-tions

differential treatment, the Court concluded that the Akron

charter amendment embodied "an explicitly racial classifica-tion

treating racial housing matters differently from other

Absent a compelling

state interest, the Court held that the state "may no more dis-advantage

any particular group by making it more difficult to

enact legislation in its behalf than it may dilute any person’s

vote or give any group a smaller representation than another

examined the constitutionality of Washington’s Initiative 350,

guidelines for educational programs, and to encourage local dis-tricts

to develop programs that will best fit the needs and interests

of the pupils . . . .

express racial classification in the traditional sense. Rather, a racial classi-fication

was discerned from the charter amendment’s surrounding context.

its very nature, it gave rise to suspicion that an impermissible motive was

at work"). This ambiguity in what constitutes a racial classification, how-ever,

is irrelevant to the case at hand, because there is neither a traditional

racial classification in the text of Proposition 227 nor evidence that the

"racial nature" of bilingual education played a role in the initiative’s popu-lar

approval.

students beyond their neighborhood schools. While facially

neutral, Initiative 350 contained several broad exceptions that

essentially operated to preclude only desegregative busing.

Seattle, 458 U.S. at 462-63. In concluding that Initiative 350

Court considered the text of the initiative, the representations

of its proponents, the initiative’s practical effect, and its popu-lar

"between the treatment of problems involving racial

at 480 (citation and internal quotation marks omitted), and

that this differentiation burdened minorities "by lodging deci-sionmaking

authority over the question at a new and remote

"Initiative 350 must fall because it does not attemp[t] to allo-cate

governmental power on the basis of any general princi-ple.

Instead, it uses the racial nature of an issue to define the

governmental decisionmaking structure, and thus imposes

470 (citations and internal quotations marks omitted).

[2] Under this "political structure" analysis, reallocation of

political decision making violates equal protection only when

there is evidence of purposeful racial discrimination. Be it an

overt racial classification or a context of discernible racial

animus, constitutional "political structure" analysis resembles

"conventional" equal protection analysis in that demonstrable

458 U.S. at 484-85 ("[P]urposeful discrimination is the

condition that offends the Constitution . . . . Thus, when

facially neutral legislation is subjected to equal protection

attack, an inquiry into intent is necessary to determine

whether the legislation in some sense was designed to accord

disparate treatment on the basis of racial considerations."

(citations and internal quotation marks omitted)).

of this purposeful discrimination requirement, for they both

seeking to remedy identified patterns of racial discrimina-tion.

prevent the city council from enacting ordinances to address

placed special burdens on the ability of minority

Coalition for Econ. Equity v. Wilson, 122 F.3d 692, 704 (9th

Cir. 1997) ("The ‘political structure’ equal protection cases,

political obstructions that majorities had placed in the way of

minorities to achieving protection against unequal treat-ment.").

[3] Proposition 227, however, does not obstruct minorities

from seeking protection against unequal treatment. Unlike

ordinances enacted to address pervasive racial discrimination

in housing, or efforts taken by local school boards to desegre-gate

racially stratified school districts, California’s system of

bilingual education did not operate to remedy identified pat-terns

of racial discrimination. Bilingual education did not tar-get

racial animus, but rather endeavored to improve (what

proponents viewed to be) a pedagogically flawed educational

system. As the district court found:

This court cannot discern from the face of Proposi-tion

227 any hidden agenda of racial or national ori-gin

discrimination against any group. . . . [T]he

debate is a neutral one, about which system will pro-vide

LEP children with the best education to enable

them to function as American citizens and enjoy the

opportunities and privileges of life in the United

States.

Valeria G., 12 F. Supp. 2d at 1014-15.

[4] Given that the purpose and function of California’s

bilingual education program was and is to improve education,

contains no evidence that Proposition 227 was motivated by

racial animus, we cannot conclude that this initiative reallo-cated

a racial problem — from the existing decisionmaking body,

U.S. at 474 (emphasis added). While Proposition 227 surely

reallocated political authority, placing control over bilingual

education at the state (rather than local) level, the reallocation

of political authority at issue in Proposition 227 operated

There is, of course, an undeniable racial dimension to Prop-osition

227. In the 1996-97 academic year, Hispanic/Latino

students accounted for more than 82 percent of the LEP stu-dent

population, despite making up less than 41 percent of the

overall student body in California’s public schools.

Further-more,

during Proposition 227’s popular campaign, the link

between bilingual education and the Hispanic/Latino commu-nity

was discernible. While much of the campaign was framed

in expressly non-racial terms,

Hispanics and Latinos were

is Asian/Pacific Islanders, who make up more than 14 percent of the LEP

population. Thus, as plaintiffs note, "nearly every LEP student in Califor-nia

public schools is either Latino/Hispanic or Asian/Pacific Islander."

227 supporters, reveal that much of the initiative’s campaign focused

on the relative effectiveness of bilingual education as a curricular strategy,

rather than on the racial composition of California’s LEP student popula-tion.

a year before Proposition 227 appeared on the ballot, Ron Unz [co-author

of the initiative] began making public appearances to insist that the initia-tive

was ‘neither ‘anti-immigrant’ nor ‘anti-Latino.’ . . . ‘[i]nstead of

warning about the menace of ‘bilingualism,’ [the campaign] stress[ed] the

importance of ‘English for Children.’ ").

releases, and published opinion pieces.

The mere fact, however, that California’s LEP student pop-ulation

is predominantly Hispanic/Latino, and that proponents

of Proposition 227 specifically identified this racial group

during the initiative’s campaign, does not itself suffice to

create a colorable equal protection political structure claim.

The Supreme Court has distinguished "between state action

that discriminates on the basis of race and state action that

v. Bd. of Educ., 458 U.S. 527, 538 (1982). The former violates

equal protection, but the latter does not. Furthermore, the

Hunter doctrine "does not mean . . . that every attempt to

address a racial issue gives rise to an impermissible racial

power offends equal protection only when the racial

implications of the underlying issue determine the newly-formed

majority may generally restructure the political process to

place obstacles in the path of everyone seeking to secure the

benefits of governmental action. But a different analysis is

required when the State allocates governmental power non-neutrally,

determine the decisionmaking process."). While bilingual

education has obvious racial implications, the record estab-lishes

neither that racial discrimination was the impetus of

bilingual education, nor that racial animus motivated the pas-sage

of Proposition 227. The racial makeup of California’s

SPANISH-ONLY education" system, isolated "Latino immigrant

children" as the "principal victims of bilingual education," and suggested

that "[m]ost Latino parents" support the initiative because "[t]hey know

that Spanish-only bilingual education is preventing their children from

learning English." Similarly, press releases and published opinion pieces

released by Proposition 227 supporters highlighted the prevalence of

Spanish speaking Latino schoolchildren. No other racial groups were spe-cifically

identified in the Proposition 227 campaign materials.

of political authority over bilingual education.

[5] Plaintiffs cite no substantial evidence to establish that

Proposition 227 was enacted for a racially discriminatory pur-pose.

Instead, they argue that political restructuring violates

equal protection anytime it affects a program that inures pri-marily

to the benefit of racial minorities. Plaintiffs ask this

court to invalidate Proposition 227’s political restructuring

absent a showing of racial animus because bilingual education

in California has a uniquely "racial focus." No case is cited

in support of this novel interpretation of the Supreme Court’s

"political structure" jurisprudence, and we reject plaintiffs’

stand for the simple proposition that strict scrutiny applies if

an initiative creates an outright racial classification, or if a

facially neutral initiative was driven by the racial nature of its

facial neutrality there is little doubt that the initiative was

effectively drawn for racial purposes"). Given Proposition

227’s facial neutrality, and the lack of evidence that it was

motivated by racial considerations, we hold that Proposition

227’s reallocation of political authority over bilingual educa-tion

does not offend the Equal Protection Clause.

[6] The judgment of the district court, holding that Proposi-tion

227’s political restructuring is not inconsistent with the

Equal Protection Clause, is