Full opinion text
PECKHAM, Chief Judge. TABLE OF CONTENTS SUMMARY 932 OPINION 933 I. The Parties 933 II. Procedural Background 933 III. History of the I.Q. Test and of Special Education in California 935 A. The Early History 935 B. State Funded Programs for the Educable Mentally Retarded:' Statutory History 937 C. Special Classes for the Educable Mentally Retarded 941 D. The Racial Composition of E.M.R. Classes . 942 E. The Use of I.Q. Tests in E.M.R. Placement 945 1. The State Requirement of an I.Q. Test 945 2. The I.Q. Score and the Other Psychological Data for E.M.R. Placement' 948 3. The Moratorium on I.Q. Testing 951 IV. Intelligence Tests 952 A. Introduction: The Impossibility of Measuring Intelligence 952 B. Scores of Black and White Children on I.Q. Tests 954 C. Reasons for the Disparity in I.Q. Scores 954 1. The Genetic Argument 955 2. The Socio-Economic Argument 956 3. The Cultural Bias of Standardized I.Q. Tests 956 D. The Relevance of Cultural Bias and the Disparity in I.Q. Scores 959 V. Legal Analysis 960 A. Introduction 960 B. Federal Statutory Claims 961 1. Private Right of Action and Exhaustion of Administrative Remedies 961 . 2. Title VI of the Civil Rights Act of 1964: One Application of an “Effects Test” 964 3. The Rehabilitation Act of 1973 and the Education for All Handicapped Children Act of 1975 — Another “Effects Test” 966 4. The Question of Validation D,espite Discriminatory Effects 968 5. Alternatives to I.Q. Testing for E.M.R. Placement 973 C. The Equal Protection Clause of the Fourteenth Amendment 974 1. Intentional Discrimination 975 a. Determining the Standard 975 b. Applying the Law 979 2. An “Intermediate” Standard of Review 985 D. State Claims E. Adequacy of Representation F. Legal Conclusions VI. Remedy A. Introduction B. Permanent Injunctive Relief 1. Intelligence Tests 2. Disproportionate Placement 3. Reevaluation and Other Class Relief C. The Necessity of Limiting the Scope of the Remedy VII. Conclusion 986 987 988 989 989 989 989 990 990 990 991 Plaintiffs, representing the class of black children in California who have been or in the future will be wrongly placed and maintained in special classes for the “educable mentally retarded” (“E.M.R.”) challenge the placement process for those classes and particularly certain uses of standardized individual intelligence (“I.Q.”) tests in California. They contend that the I.Q. tests in their present form are biased and that defendants have discriminated against black children by using those tests. The tests allegedly result in the misplacement of black children in special classes that doom them to stigma, inadequate education, and failure to develop the skills necessary to productive success in our society. Black children represent only 10 percent of the present general student population in California, but provide some 25 percent of the population enrolled in E.M.R. classes. These testing and placement problems arise in a setting of educational failure. California’s schools have been unable to meet the educational needs of disadvantaged minorities such as the black children who brought this case. As a result, poor minority children tend not only to start out behind their white, middle-class counterparts, but also tend to fall increasingly farther behind after exposure to the public school system. Defendant Wilson Riles stated in 1969, before he became Superintendent of Public Instruction, that disadvantaged black children, on the average, learn only about .7 as much as middle-class white children in any given year. More recent data confirmed that analysis. Black children fall increasingly behind to the point that it is not unusual for high school students to be reading at the third grade level and performing at only the fourth grade level in mathematics.® The disproportionate placement of black children into E.M.R. classes is but one aspect of this troublesome situation. Courts cannot solve our educational problems, but they played a part in the incremental effort to improve those aspects of our educational systems that effectively deny minorities an equal opportunity to succeed. In particular, the phenomenon of special education such as that for the “mentally retarded” has not yet been subjected to much judicial scrutiny. We have been forced in this case to enter that complicated area, and it raises special problems for court intervention. A principal focus of this litigation is on testing — on the use of individual I.Q. tests — to classify black children and assign them to E.M.R. classes. Much of the more then 10,000-page transcript of the trial represents detailed expert testimony about these tests. The court has necessarily been drawn into the emotionally charged debate about the nature of “intelligence” and its basis in “genes” or the “environment.” This debate, which finds reknowned experts disagreeing sharply, obviously cannot be resolved by judicial decree. Despite ‘these problems, however, court intervention has been necessary. The history of this litigation has demonstrated the failure of legislators and administrative agencies to confront problems that clearly had to be faced, and it has revealed an all too typical willingness either to do nothing or to pass on issues to the courts. Fortunately, the “scientific controversy” surrounding the I.Q. tests has not materialized to the extent that might have been expected. The experts have tended to agree about what I.Q. tests can and cannot do, even if they disagree about the utility of I.Q. testing for E.M.R. placement. Our decision, therefore, rests more on a consensus than on the testimony of any one line of experts. Given that consensus, coupled with the other factors present in this case, there is no choice but to invalidate California’s present system of classification of black children for E.M.R. classes. The bases for this ruling, both statutory and constitutional, will be explained in detail below, but it may be helpful to summarize them briefly at the outset before proceeding to the main body of the opinion. SUMMARY This court finds in favor of plaintiffs, the class of black children who have been or in the future will be wrongly placed or main-tamed in special classes for the educable mentally retarded, on plaintiffs’ statutory and state and federal constitutional claims. In violation of Title VI of the Civil Rights Act of 1964, the Rehabilitation Act of 1973, and the Education for All Handicapped Children Act of 1975, defendants have utilized standardized intelligence tests that are racially and culturally biased, have a discriminatory impact against black children, and have not been validated for the purpose of essentially permanent placements of black children into educationally dead-end, isolated, and stigmatizing classes for the so-called educable mentally retarded. Further, these federal laws have been violated by defendants’ general use of placement mechanisms that, taken together, have not been validated and result in a large over-representation of black children in the special E.M.R. classes. Defendants’ conduct additionally has violated both state and federal constitutional guarantees of the equal protection of the laws. The unjustified toleration of disproportionate enrollments of black children in E.M.R. classes, and the use of placement mechanisms, particularly the I.Q. tests, that perpetuate those disproportions, provide a sufficient basis for relief under the California Constitution. And under the federal Constitution, especially as interpreted by the Ninth Circuit Court of Appeals, it appears that the same result is dictated. Moreover, there is another basis for the federal constitutional ruling. Defendants’ conduct, in connection with the history of I.Q. testing and special education in California, reveals an unlawful segregative intent. This intent was not necessarily to hurt black children, but it was an intent to assign a grossly disproportionate number of black children to the special E.M.R. classes, and it was manifested, inter alia, in the use of unvalidated and racially and culturally biased placement criteria. This intent, consistent only with an impermissible and unsupportable assumption of a higher incidence of mental retardation among blacks, cannot be allowed in the face of the constitutional prohibition of racial discrimination. The precise reasons for these findings, expressed here in simplified form, and the type of remedy that will be necessary, including a continuation of the present injunction against I.Q. testing for the placement of black children into E.M.R. classes, are discussed in the body of this opinion. OPINION I. THE PARTIES The named plaintiffs, including Larry P., are black children who attended elementary schools in the San Francisco Unified School District and were placed in special classes for the educable mentally retarded. Their scores on individual standardized I.Q. tests contributed to the placement decisions, which plaintiffs contend were erroneous. Defendant Wilson Riles has been the Superintendent of Public Instruction for the State of California since the inception of this lawsuit. He has overall responsibility for administering California’s public educational system, including classes for the mentally retarded. Defendants Marian W. Drinker, Michael W. Kirst, James W. Dent, Jonn R. Ford, Louis Honig, Jr., Patricia D. Ingoglia, Virla R. Krotz, Lorenza C. Schmidt, and Tony N. Sierra are members of the California State Board of Education. The Board is empowered to set the policies that the Superintendent executes. Defendant Robert Alioto is the Superintendent of Schools for the San Francisco Unified School District, and defendant members of the Board of Education are Zuretti Goosby, Ben Tom, Peter Mezey, William Maher, Lucille Abrahamson, Eugene S. Hopp, and Rosario Anaya. The United States is participating in this lawsuit as amicus curiae pursuant to a motion granted in August 1977. As amicus curiae the United States was given the right to present expert witnesses, file briefs, and make oral arguments to the court. II. PROCEDURAL BACKGROUND The initial complaint for declaratory and injunctive relief was filed against the San Francisco and state defendants on November 23,1971, challenging as unconstitutional the use of standardized intelligence tests for black E.M.R. placement in San Francisco. By memorandum and order filed on June 20, 1972, this court determined that the action could proceed as a class action on behalf “of all black San Francisco school children who have been classified as mentally retarded on the bases of I.Q. test results.” Larry P. v. Riles, 343 F.Supp. 1306, 1315 (N.D.Cal.1972). The order also granted a preliminary injunction in favor of plaintiffs. Defendants were restrained from placing black students in classes for the educable mentally retarded on the basis of criteria which place primary emphasis on the results of I.Q. tests as they are currently administered, if the consequences of use of such criteria is racial imbalance in the composition of such classes. 343 F.Supp. at 1315. Defendants appealed the preliminary injunction to the Court of Appeals for the Ninth Circuit. On August 16, 1974, by a per curiam decision, the circuit affirmed the 1972 decision. Larry P. v. Riles, 502 F.2d 963 (9th Cir. 1974). After the rendering of the Ninth Circuit’s decision, plaintiffs moved to modify the class and the terms of the preliminary injunction. The court agreed and filed, an order on December 13, 1974, expanding the class to include “all Black California school children who have been or may in the future be classified as mentally retarded on the basis of I.Q. tests.” Order of December 13, 1974, at 1. The terms of the preliminary injunction were correspondingly expanded. The order, at page 2, provided as follows: 2. The defendants Superintendent of Public Instruction for the State of California, the members of the State Board of Education, and the San Francisco defendants, Superintendent of Schools and the members of the San Francisco Unified District Board of Education, are restrained from: (a) performing psychological evaluation of plaintiffs and other black California school children by the use of standardized individual ability or intelligence tests which do not properly account for the cultural background and experiences of these children; (b) listing as approved for purposes of section 6902.07 of the California Education Code any individual intelligence test which does not properly account for the cultural background and experiences of black children; (c) placing black children in California into classes for the educable mentally retarded on the basis of the results of any test which does not properly account for the cultural background of these children. The statewide preliminary injunction, affecting only black children, has been in effect since the date of that order. In January of 1975, defendants voluntarily imposed a moratorium on I.Q. testing for E.M.R. placement of all children, regardless of race, in California. For a period of time it was thought that the Master Plan for special education in California, enacted in experimental form in 1974, would address and perhaps remedy the problems raised by this case, but that hope never materialized. The case had to be brought to trial on the merits. This case has developed from a 1971 private San Francisco class action alleging only federal constitutional claims to a statewide action supported by the Department of Justice and involving numerous federal and state laws. The essence of the challenge is still the same, but with the recent proliferation of legislation and regulations touching on once neglected problems, plaintiffs have bolstered substantially their attack. On January 18, 1977, pursuant to the court’s order of December 6,1976, plaintiffs filed their first amended complaint. Reflecting recent legislative reforms, the amended complaint alleged several statutory bases for the claims, including Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and the Emergency School Aid Act of 1972 and 1974, 20 U.S.C. § 3191 et seq. The amended complaint also alleged violations of the Constitution of the State of California, as well as of several sections of the California Education Code. On August 8, 1977, the United States Department of Justice moved to participate as amicus curiae. The motion was granted on August 19, 1977. The position of the United States is that the use of I.Q. test scores to effect the placement of black children in special education classes violates federal law, including the provisions mentioned before, as well as the Education for All Handicapped Children Act, 20 U.S.C. § 1401 et seq., and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, if the tests have a disproportionate impact on black children or were not validated for the purpose of diagnosing mental retardation. Plaintiffs later were granted leave to file a second amended complaint, alleging in particular the violations of the Education for All Handicapped Act. The court denied various motions to dismiss and for summary judgment, thus necessitating the trial that began on October II, 1977. III. HISTORY OF THE I.Q. TEST AND OF SPECIAL EDUCATION IN CALIFORNIA A. The Early History We must recognize at the outset that the history of the I.Q. test, and of special education classes built on I.Q. testing, is not the history of neutral scientific discoveries translated into educational reform. It is, at least in the early years, a history of racial prejudice, of Social Darwinism, and of the use of the scientific “mystique” to legitimate such prejudices. The first usable I.Q. tests were developed in France in 1905 by Alfred Binet, who sought to distinguish between “backward” and normal children in Paris. He had no illusions that his test could measure innate traits. He sought to develop diagnostic tools to help those who needed to improve their intellectual skills. Binet insisted that “it was necessary to react against and protest the brutal pessimism of those who regarded the test as measuring some fixed and unchanging quantity.” Kamin 849. This admonition, however, was not heeded when Binet’s test was transplanted in American soil. The early leaders of the I.Q. testing movement in the United States were quick to assume that the Binet tests measured an innate capacity fixed in the genes. Typical and of particular interest for the California story were the views of Professor Lewis Terman of Stanford, the well-known developer of the Stanford-Binet I.Q. test in 1916. According to Terman, his test could be employed as an objective tool to learn the identity of the “feeble-minded” and “borderline feeble-minded” and hopefully to discourage them from breeding. He predicted great accomplishments for the testing movement: [I]n the near future intelligence tests will bring tens of thousands of these high-grade defective [I.Q.’s in the range of 70 to 80] under the surveillance and protection of society. This will ultimately result in curtailing the reproduction of feeble-mindedness and in the elimination of an enormous amount of crime, pauperism, and industrial inefficiency. He concluded further that, since the tests measured a fixed, innate ability, it would be useless to keep the feebleminded and borderline feebleminded in class with other, normal children. Hardly any one would think of them as institutional cases. Among laboring men and servant girls there are thousands like them. They are the world’s “hewers of wood and drawers of water.” And yet, as far as intelligence is concerned, the tests have told the truth. These boys are uneducable beyond the merest rudiments of training. No amount of school instruction will ever make them intelligent voters or capable citizens in the true sense of the word. Judged psychologically they cannot be considered normal. Children of this group should be segregated in special classes and be given instruction which is concrete and practical. They cannot master abstractions, but they can often be made efficient workers, able to look out for themselves. Finally, it was Terman’s opinion, as well as that of others in the testing movement, that different racial and ethnic groups had different proportions of intellectually subnormal individuals. He declared in 1916 that the borderline feebleminded “represent the level of intelligence which is very, very common among Spanish-Indian and Mexican families of the Southwest and also among negroes. Their dullness seems to be racial or at least inherent in the family stocks from which they come.” These opinions were widely accepted and influential in the programs for the “feeble-minded” set up during and after World War I. Indeed, in 1921, the year that the California state legislature first provided a legal basis for classes for the mentally retarded, 1921 Cal.Stats. ch. 685, the State Superintendent of Public Instruction made the following statement: The problem of providing for mental defectives is a far greater one than that of providing for education of the deaf and the blind. Feeblemindedness has been defined as “a condition of mental defect existing from birth or from early childhood resulting in an incompleteness of mental development which renders it impossible for the subject to compete with his fellows or to manage himself and his affairs with ordinary prudence.” A survey of a county in California made a few years ago under the direction of Professor Lewis Terman of Stanford University revealed the fact in rural schools of that county 4.9 percent of all children enrolled in the public schools were feeble-minded. It also showed 3.5 percent of the children enrolled in the city schools of that county were feeble-minded. Undoubtedly, this high percentage was due, in part, to the predominance of a foreign-born population. However, it is a conservative estimate that 2 percent of the children enrolled in the public schools of California are definitely feeble-minded. The total number of feeble-minded children would, therefore, be approximately 9,000. The first step in solving the problem of educating defective children is to discover which children are mentally defective. Oakland, Los Angeles, Santa Ana and Pasadena and Berkeley have recently established departments of psychological research with experts in charge competent to give tests to determine the mental abilities of pupils. It is an extravagance to keep feeble-minded children in classes with other children. The feeble-minded child learns nothing in such classes, but he takes up a considerable share of the time of the teacher which might better be given to pupils who can profit by regular classroom instruction. Moreover, society would be far better off if these children were discovered in their early youth. Children who are hopeless, so far as ordinary education is concerned, could then be sent to a proper institution, thus relieving society from any menace from them. Special education and the I.Q testing that justified its existence thus found an enduring place in California in the 1920’s, and the assumptions brought to the special classes survived long past the presumed “scientific basis” for them. By 1927, according to a state survey, there were some 10,000 school children with I.Q. scores below 80, and 5,322 were in special schools or classes. The growth of these special classes and schools stagnated during the depression years, and efforts to obtain state- funding were unsuccessful. The situation changed dramatically after the Second World War. The California State Bureau of Special Education was created, and, in the words of Dr. Simmons of the State Department of Education, the principal historian of these developments, “After many previous efforts, a state program for the educable mentally retarded was finally achieved for the first time in 1947.” B. State Funded Programs for the Educable Mentally Retarded: Statutory History The 1947 legislation substantially increased the state’s role in special education classes, which earlier had been state-sanctioned but not closely regulated. The new law defined “mentally retarded minors” as: all minors of compulsory school age who because of retarded intellectual development as determined by individual psychological examination are incapable of being educated profitably and efficiently through ordinary class room instruction but who may be expected to benefit from special educational facilities designed to make them economically useful and socially adjusted. 1947 Cal.Stats. ch. 1475. The “special training schools or classes” mandated by this law ratified the earlier assumptions behind these classes and set the pattern for education of the educable mentally retarded in California. State funding was equal to the excess cost of educating mentally retarded minors multiplied by the number of such persons who were in average daily attendance. Reference to the special classes was only to be made after a “careful individual examination by a competent psychologist”; an intelligence test was not specifically required by statute, but it is undisputed that such tests were given as a matter of course. In order to understand the distinctive qualities of the E.M.R. program, it is first necessary to distinguish it from other state categorical programs. The “trainable mentally retarded” (T.M.R.) category was created in 1951 for school-age children considered one step below the category of educable mentally retarded. These T.M.R. classes no longer have the same title, but they continue to exist to enable severely retarded children to become socially adjusted and useful “in their homes and within sheltered environments.” Initially, such classes were at the option of each district. Classes for these children were finally mandated in 1963. 1963 Cal.Stats. ch. 2105. See Cal.Educ.Code § 56515. In 1963, in addition, the legislature created programs for “culturally disadvantaged minors,” 1963 Cal.Stats. ch. 98, and for “educationally handicapped minors.” 1963 Cal. Stats, ch. 2165. See Cal.Educ.Code § 56600. The former category is particularly significant since it specifically addresses the problems that underlie the challenge to I.Q. testing in this case. “Culturally disadvantaged minors” were defined as children “potentially capable of successfully completing a regular educational program” but who probably would be unable to do so because of “cultural, economic, and like disadvantages.” The 1963 legislation set up a program for “supplementary education” in deprived areas to help this group. See Cal. Educ.Code § 56600. “Educationally handicapped minors” (E.H.) also were thought capable of returning to a regular school program. They are assigned to special classes because they “cannot benefit from the regular educational program” due to “marked learning or behavioral disorders, or both.” Cal.Educ. Code § 56600. Special E.H. classes were to emphasize returning the children — principally those considered “neurologically handicapped” or “emotionally disturbed” — back to the classroom. In the mid-1960’s, therefore, California had programs for the “culturally deprived,” the “educationally handicapped,” the “educable mentally retarded,” and the “trainable mentally retarded.” The funding criteria described above encouraged placement in these classes, and the E.M.R. enrollment peaked at 58,000 in 1968-69. About 27 percent of the E.M.R. children were black, even though black children represented only 9 percent of the California school population. The swelling enrollments, particularly of minorities, led to criticisms of the program and several statutory changes. The first was the revision of the mechanism of funding to reduce the incentive to fill the classes. 1969 Cal.Stats. ch. 784. In 1969 the legislature clarified the definitions of the categories of special classes and specified that admission to a special educational program for the mentally retarded “shall be made only on the basis of an individual evaluation according to standards established by the State Board of Education and upon individual recommendation of a local admission committee which shall include a teacher, a school nurse or social worker, a school psychologist or other pupil personnel worker authorized to serve as a school psychologist who has individually examined the minor, a principal or supervisor, and a licensed physician.” 1969 Cal. Stats, ch. 784. The law also required annual reviews of E.M.R. placements and consultations with parents prior to enrollment. Around this time, the legislature began to address tentatively the complaints that had been surfacing since 1967 about misplacement of minorities, especially Spanish-speaking children, in the E.M.R. classes. Indeed, as early as 1968, the State Division of Special Education held a two-day workshop on the problems of minorities. House Resolution 444, passed in 1969, then became the first example of legislative concern in this area. House Resolution 444 stated that the category of educable mentally retarded was under “mounting criticism from representatives of certain minority groups, most particularly culturally bilingual groups, to the effect that a disproportionate number of children from such groups are assigned to classes for the mentally retarded.” This resolution then tossed the problem to the State Board of Education and through the latter to the State Department of Education. The legislature simply directed the Board to give attention to this problem and make suggestions for legislation. Precisely what the Board and Department of Education were doing at this time will be examined more closely below, but it is important to note here that they prepared a report to comply with the legislative request The report’s recognition of the problem resulted in another House Resolution, numbered 262. This resolution proclaimed that “There does exist a disproportionate enrollment of Spanish surname and Negro pupils in classes for the educable mentally retarded.” Again, however, the legislature merely called for a further report on efforts to correct this over-enrollment. Following a 1969 regulation adopted by the State Board of Education, the legislature in 1970 for the first time required by explicit statutory provision that an I.Q. test selected from a list approved by the State Board of Education be given for E.M.R. placement. The law, Education Code § 6902.06 (now § 56505), provided for the testing of children in their primary home language, and it prohibited placement into an E.M.R. class if a child scores better than two standard deviations below the norm on the test. Cal.Educ.Code § 56506. Written parental consent, obtained after an explanation of the E.M.R. program, was required before placement, Cal.Educ.Code § 56506, and the Department of Education was required to prepare an annual report for the state legislature on placements into E.M.R. classes. Cal.Educ.Code §56509. Another new enactment of 1970 required that all children presently in E.M.R. classes be retested according to the new statutory cutoff. Further, annual reports were mandated by all school superintendents in districts where there was a significant disproportion in the enrollment of minorities in the E.M.R. program. Cal.Educ.Code § 56508. Some provisions were made also for remedial attention to those found through retesting to have been qualified for regular school instruction. 1970 Cal.Stats. ch. 1543. Significant new legislation also came in 1971, when the I.Q. test was singled out specifically for attention. 1971 Cal.Stats. ch. 78. The legislature made the following clarion declaration: The legislature hereby finds and declares that there should not be disproportionate enrollment of any socioeconomic, minority, or ethnic group pupils in classes for the mentally retarded and that the verbal portion of the intelligence tests which are utilized by some schools for such placement tends to underestimate the academic ability of such pupils. Cal.Educ.Code § 56504. No teeth were given to this declaration, however, and no mention was made of which of the state-mandated I.Q. tests might be discriminatory. Rather, the legislature added the requirement that “retarded intellectual development indicated by the individual test scores” be substantiated by “a complete psychological examination by a credentialed school psychologist investigating such factors as developmental history, cultural background, and school achievement.” Cal. Educ.Code § 56506. Studies of “adaptive behavior” — the ability to engage in social activities and perform everyday tasks— were also called for as well as home visits, with the consent of the parent or guardian. Cal.Educ.Code § 56506. Finally, the legislature sought to strengthen the requirement of parental consent by requiring that the E.M.R. program be explained to parents. Cal.Educ.Code § 56506. The statutory picture created by the 1970 and 1971 legislation has remained essentially the same since that date, although there have been some signs of change. The legislature in 1974 established a pilot program, entitled the Master Plan for Special Education, designed to cover the education of all “individuals with exceptional needs.” Both the . original 1974 legislation and amendments made in 1977 would provide further protections to students in the same position as those termed E.M.R. by the Education Code sections now in effect. At the present time, while the legislature has indicated its intention to phase in the Master Plan for the entire state, it is still unclear whether the funds will be made available and, if they are, whether there would be any practical effect on the existence of special classes made up of those now called E.M.R. The Master Plan thus indicates some movement by the state in the direction sought by plaintiffs in this case; nevertheless, that movement has been slow and ambiguous, and this court must address itself to the situation as it is rather than what it might become. C. Special Classes for the Educable Mentally Retarded In contrast to the classes for the culturally deprived or the educationally handicapped, E.M.R. classes are designed to separate out children who are incapable of learning in the regular classes. According to a 1974 state handbook entitled “Programs for the Educable Mentally Retarded in California Public Schools” and “written in an attempt to provide information to those who are planning, managing, or evaluating programs for the educable mentally retarded,” Special classes have been developed to provide opportunities for pupils whose mental capabilities make it impossible for them to profit from the regular educational program. There was testimony at the trial indicating that at times these classes have been utilized to give special remedial attention to some students, e. g., Meyers 8711-13, but the administrators in the Department of Education indicated clearly that this use of the classes was discouraged. See, e. g., Simmons 3328-30; Brinegar 4620-26. In the words of Fred Hanson, a special consultant and one of the key state administrators, “slow learning must be caused by limited intellectual capacity.” Hanson 3565. These classes are not meant for remedial instruction. Further, the curriculum was not and is not designed to help students learn the skills necessary to return to the regular instructional program. To quote again from the state handbook, The primary instructional goals for the mentally retarded are set forth in Education Code Section 6902 as “social adjustment” and “economic usefulness.” These primary goals should' include physical health and development, personal hygiene and grooming, language and communication skills, social and emotional adjustment, basic home and community living skills, occupational and vocational information and skills, and citizenship. Every classroom activity should contribute in some meaningful way to achieving these goals. Some individuals have difficulty in separating the goal from the objective or the method of reaching the goal. If these individuals are unable to separate such important factors, their program may develop into one that is completely different from their original goal. For example, one of the major goals of the educational program for the mentally retarded is to prepare each pupil to become a productive citizen. To do this, the pupil should be able to do some reading. Reading, however, must not become the goal itself, but only an objective or method of reaching the goal. The educational goals for the educable mentally retarded are not reading, writing, and arithmetic per se; if these skills are accepted as the primary goals, then EMR pupils should remain in regular classes where academic skills are emphasized. Academic skills can be objectives when they are taught within the context of the broader goal and when they are appropriate skills for the cognitive level of the pupil. [Emphasis added.] Finally, consistent with the first two aspects of E.M.R. classes, the classes are conceived of as “dead-end classes.” Children are placed there, generally at about eight to ten years of age, because they are thought to be incapable of learning the skills inculcated by the regular curriculum. They are provided with instruction that deemphasizes academic skills in favor of adjustment, and naturally they will tend to fall farther and farther behind the children in the regular classes. As stated by Mr. Hanson, “as they get older, the gap tends to widen between the two programs [regular and E.M.R.]. E.M.R. classes therefore tend to have a very low turnover rate. As Mr. Dean, Assistant Superintendent of Special Education Services in San Francisco, informed members of the San Francisco School Board in 1970, and reaffirmed on the witness stand, “the object is for the children to remain in the program from time of placement until graduation from senior high school.” Dean 4311-12. Independent empirical studies substantiate this observation. . Professor Mercer’s investigation of schools in Riverside, for example, found that less than 20 percent of those placed in E.M.R. classes ever returned to the regular classroom. Mercer 1433-34. A second survey, the State’s Uslan Report, found that the average student in an E.M.R. class had been there for four years and five months. These classes were designed and operate only to teach certain minimal skills and habits to those found mentally incapable of mastering the skills necessary to follow a regular classroom curriculum. Since California has carved out a special “track” for children unable to progress beyond a minimal education, it is clear that the decision to place children in these classes is a crucial one. Children wrongly placed in these classes are unlikely to escape as they inevitably lag farther and farther behind the children-in regular classes. Consequently, as stated by Dr. Riles, it would “absolutely not” be appropriate to put a non-mentally retarded child in a class for the educable mentally retarded. Riles 2705. D. The Racial Composition of E.M.R. Classes There is abundant evidence that black children are substantially overrepresented in E.M.R. classes. The following table gives the aggregate data for the relevant periods of time. TABLE I STATE DATA School Year Total E.M.R. Enrollment Black % in Student Population Black % in E.M.R. Classes 1968- 69 57,148 not reported 25.50% 1969- 70 54,078 not reported 27.06% 1970- 71 47,864 not reported 25.73% 1971- 72 38,208 not reported 26.70% 1972- 73 33,091 9.3% 25.00% 1973- 74 29,609 9.3% 24.56% 1974- 75 28,136 not reported 22.61% 1976-77 19,289 10% 25.43% Sources: SDE * Reports, in Exhibits P-40, P — 41, P-42(b), P-131 U. S. DATA 1973- 74 32,500 12% 26% 1974- 75 26,494 12% 27% 1976-77 26,224 10% 17% Sources: U. S. Exhibits 5a, 5b, 5c, 7, 8 This table provides two sets,of data which clearly indicate that, while the total enrollment in E.M.R. classes has declined drastically since the academic year 1969-70, the overrepresentation of black children in those classes has remained essentially constant. In the academic year 1974-75, for example, the lowest percentage differential according to state data was reached. Black children provided approximately 10 percent of the student population but 22.6 percent of the E.M.R. population. As illustrated by Table 2, the practical effect of these overall disproportions is even more dramatic. TABLE 2 1976-1977 ENROLLMENT DATA ON TWENTY SCHOOL DISTRICTS WHICH ACCOUNT FOR 80% OF CALIFORNIA’S BLACK POPULATION * District EMR Enrollmt. Black EMR Total District Enrollmt. Total Black Enrollmt. Black District % Black EMR % Non-Black EMR Enrollmt. Rate Black EMREnrollmt. Rate L.A.U.S.D. 3155 1786 592,931 142,778 24.1% 56.6% .30% 1.25% •Oakland 751 663 52,275 35,086 67.1% 88.3% .51% 1.89% Compton 461 442 31,054 26,356 84.9% 95.9% .40% 1.68% S.F.U.S.D. 446 240 69,982 21,730 31.1% 53.8% .43% 1.10% San Diego 592 202 121,233 17,637 14.6% 34.1% .38% 1.14% Richmond 109 67 34,880 12,278 35.2% 61.5% .19% .54% Pasadena 38 29 25,409 10,872 42.8% 76.3% .06% .27% Inglewood 62 51 13,068 10,428 79.8% 82.3% .42% .49% Sacramento City _ No Data----------No Data • Long Beach 458 75 60,187 9,058 15.1% 16.4% .75% .83% Pomona 139 77 20,863 6,195 29.7% 55.4% .42% 1.24% Fresno City 399 110 53,643 5,550 10.4% 27.6% .60% 1.98% Berkeley 25 22 12,142 5,221 43.0% .04% .42% San Bernardino City 265 79 30,970 4,712 15.2% 29.8% .02% 1.68% Lynwood 94 56 9,450 4,560 48.3% 59.6% .78% 1.23% Stockton City 260 84 26,868 4,293 16.0% 32.3% .78% 1.96% Vallejo 81 39 14,357 4,030 28.1% 48.2% .41% .97% Ravenswood 10 9 3,443 2,913 84.6% 90.0% .19% .31% Bakersfield 185 73 18,346 2,893 15.8 39.5% .72% 2.52% Monterey Peninsula 90 36 14,003 2,627 18.8 40.0% .47% 1.37% In the 20 districts accounting for 80 percent of the enrollment of black children, black students comprised about-27.5 percent of the student population and 62 percent of the E.M.R. population. Statistical analyses of the statewide and distriet-by-district figures indicate the obvious. These apparent overenrollments could not be the result of chance. For example, there is less than a one in a million chance that the overenrollment of black children and the underenrollment of non-black children in the E.M.R. classes in 1976-77 would have resulted under a color-blind system of placement. Hillabrandt 2523. The data collected for 1976-77 on the 20 districts in California that enroll more than 80 percent of the population of black children are again particularly revealing. According to the State Department of Education data, black children were overrepresented in all districts, and in all but three — Inglewood, Long Beach, and Ravenswood — the overenrollment was statistically significant at the .05 level. Berk 9749-50. Comparable data obtained independently by the U.S. Department of Health, Education, and Welfare, confirmed the state’s data, showing a statistically significant overenrollment in 17 of the 20 districts (with data for one not available). Hillabrandt 0992-94. Data for the earlier years are completely consistent. For 1973, for example, the federally-compiled information revealed statistically significant overenrollments in 15 out of the 18 school districts accounting for 80 percent of the population of black school children. Hillabrandt 2534-36. However, the data are compiled and analyzed, and whether we compare aggregate figures or rates of enrollment, there is no question that a “color-related” factor contributed to the overenrollment. Without belaboring this conclusion, we must consider the reasons for the overenrollment. This opinion will undertake such an examination in a subsequent section, but it is important to emphasize that any explanation must account for the magnitude of the problem, and the defendants’ suggestion that there is a higher incidence of mild retardation among the black population fails to do this. Even if it is assumed that black children have a 15 percent higher incidence of mild mental retardation than white children, there is still less than a one in a million chance that a color-blind system would have produced this disproportionate enrollment. If it is assumed that black children have a 50 percent greater incidence of this type of mental retardation, there is still less than a one in 100,000 chance that the enrollment could be so skewed towards black children. Hillabrandt 2536-38. Perhaps the most telling weakness in defendants’ assertion is that the disproportionate E.M.R. enrollment of black children is not duplicated in the classes for the so-called “trainable mentally retarded” children. See, e. g., Hillabrandt 2561; Watkins 4063-65. There is something distinctive about the placement mechanism for E.M.R. classes that has drawn in great numbers of black children since at least the late 1960’s. E. The Use of I.Q. Tests in E.M.R. Placement There is no factual dispute about the matters just discussed. E.M.R. classes are “dead-end” classes for children thought to be incapable of learning the material taught in regular classes, and black children can be found in the classes in numbers grossly out of proportion to their representation in the student population. We turn now to the process by which the children are assigned to the E.M.R. classes, and particularly to the role of the I.Q. tests in that process. 1. The state requirement of an I.Q. test. Prior to 1969, California’s education code required that an “individualized psychological examination” be given prior to E.M.R. placement, and the Administrative Code mandated that a “verbal or non-verbal intelligence test” be given. No list of tests was set out, however, and there was at least a possibility that particular school districts could avoid relying on tests that had a discriminatory impact on minorities. This changed in 1969, and for the first time the state adopted a mandatory list. The circumstances surrounding this change reveal much about defendants’ attitude toward minorities in E.M.R. classes. The year 1969 was an eventful one in the history of I.Q. testing. Concern had been mounting about the tests and the placement of minorities in E.M.R. classes, and that concern had already been expressed in a State Department of Education conference in 1968. In early 1969, the state legislature enacted House Resolution 444, calling for study of the problem of overenrollment of minorities in E.M.R. classes, and later that year there were more hearings around the state. Furthermore, the Diana litigation commenced in 1969 and raised many of these issues on behalf of children from Spanish-speaking backgrounds. And it was also in 1969 that Professor Arthur Jensen added considerable fuel to the I.Q. controversy with his long and detailed brief for the hereditability of “intelligence” as measured by I.Q. scores. Key officials in the State Department of Education — the central actors in this story — were well aware of these developments; they knew that the E.M.R. classes contained a disproportionate enrollment of minority children, and they were equally well aware of the charge that a cultural bias in the I.Q. tests caused or contributed to that disproportion. E. g., Hanson 3746-52. Wilson Riles, then serving as head of California compensatory education programs, even stated in mid-1969 to the President’s Commission on Mental Retardation that, because of the disproportionate number of minorities in the E.M.R. programs, In California, educators are taking a second look at their classification criteria to see if language difficulties, deprivation of experiences, and deviation from the majority’s culture and value system may be entering into the determination of who is mentally retarded. Riles 2914. Yet just prior to Riles’ statement about a reassessment of the placement process, the State Board of Education chose for the first time to mandate the use of specific standardized individual intelligence tests for E.M.R. placement. Indeed, as it turned out, the state decision revealed a studied effort to avoid the “second look” suggested by Dr. Riles. Unfortunately, no state officials called to testify by either plaintiffs or defendants could provide a cogent explanation for the original impetus toward mandatory I.Q. testing. Fred Hanson, the consultant within the department who prepared the list of suitable tests, testified as follows: Q. Is it, in fact, true that the requirement that an I.Q. test be given before placement and that the list be approved by the Board was one that the Department made to the Board in 1969? A. It seems to follow, and I can’t find any reason, as far as legal reason, as to why that sequence of events — it escapes me really. Hanson 3783. See also, e. g., Simmons 3349-50. What is certain is that the impetus for change came from within the State Department of Education in the middle of 1969. In July 1969, the Department proposed, and the State Board of Education adopted, an addition to the California Administrative Code requiring that approved I.Q. tests be used as part of the E.M.R. placement process. 5 Cal.Ad.Code § 3401. The I.Q. tests were to be selected from a list prescribed by the Board. The Department then moved very quickly to compile that list. On July 22, 1969, the Acting Chief of Special Education, Charles Watson, sent a letter to approximately, 100 school psychologists and county offices of education. The letter stated the Board’s intention to develop the list of appropriate tests before the beginning of the next school year in September. The letter “urgently requested” suggestions for appropriate group and individual I.Q. tests. Mr. Hanson had drafted that letter and personally undertook the investigation of I.Q. tests. In addition to examining the some 28 responses to the letter, Mr. Hanson talked to the publishers of the Stanford-Binet, the WISC, and other major standardized tests, and he consulted a standard source book to learn about other supplementary tests. It is admitted by defendants that Mr. Hanson was not himself an expert in I.Q. testing. In August, Mr. Hanson compiled a general list of tests and used the responses to the letter to tabulate the frequency with which tests were then being utilized by the reporting districts and county superintendent’s offices. It appears from Mr. Hanson’s testimony that the primary criterion for selection of tests for the final list, prepared at the end of the month, was the frequency of use in the field. Hanson 3719-23. As a result, the final list required-that either one of the Wechsler tests, the Stanford-Binet, or the Leiter test be given, with certain other tests permitted on a supplementary basis. The list was not given to the Board for approval until February 1970, but the decision was essentially made in July-August 1969. The extremely quick and unsystematic method of selecting these tests raises serious questions about the intentions of officials in the SDE. The method resulted in a failure to consider many of the critical issues stemming from I.Q. testing. Mr. Hanson and others in the State Department of Education, for example, chose to ignore letters from field personnel, including a powerful one from Mr. Hocker, co-chairman of the Testing Committee of the California Association of School Psychologists and Psychometrists, that questioned the propriety of adopting a list of tests with such haste. The Department also failed to consult any outside experts about the preparation of the list except persons employed by the publishers of the standardized I.Q. tests. And despite their awareness of the controversy surrounding the disproportionate enrollment of minorities and the cultural bias of I.Q. tests, the Department personnel did not expressly consider or investigate these problems in making their determination. Hanson 3719-24, 3737; Simmons 3350-52. Indeed, by relying on the most commonly used tests, they opted to perpetuate any discriminatory effects of those tests. Evidently, despite the legislative policy suggested by H.R. 444, minority overenrollment was not considered a problem worthy of serious attention. Mr. Hanson’s testimony is instructive: The Court: You really think that there were, back before the drop, that many mildly mentally retarded people among the Spanish surnamed people? The witness: Absolutely. The Court: You do? And you think that there were that many among the blacks? The witness: Absolutely. Hanson 3798-99. Not surprisingly, the Department presented the list of tests to the Board with no indication of any problems in the process of selection or in the tests themselves. According to the undisputed testimony of a member of the Board, it was assumed that the I.Q. test selection was done by experts and took into account the question of cultural bias. Kratz 2917-29. See also Sierra 3435-36. Neither assumption was correct, and the Board — which had no staff of its own to rely on — ratified the Department’s list. Later in 1970, building on the Board’s prior determination of the need for I.Q. testing for E.M.R. placement, the state legislature began to address some of the problems associated with that decision. The general legislative changes have already been discussed, but the most important one affecting I.Q. testing should be highlighted. The legislature in 1970 required that no child be placed in an E.M.R. class unless he or she scored two standard deviations or more below the norm for the test. Cal. Educ.Code § 56506. This enactment lowered the maximum I.Q. score from a range of about' 75-85, depending on the school district, to about 70. When coupled with the provision that all students in E.M.R. classes be retested, this change contributed greatly to the decrease in enrollments that took place after 1969. Of course, as noted before, the reductions in enrollment of black children did not change substantially the percentage of black children in the E.M.R. classes. The State Department of Education’s policy underlying the adoption of the tests continued well into the 1970’s. It was a policy characterized by a serious neglect of the admitted problems of standardized I.Q. tests and the E.M.R. placement process in general. Subsequent manifestations of this policy, and how this policy should be treated as a matter of law, will be dealt with in the context of the analysis of plaintiffs’ case under the Equal Protection clause of the Fourteenth Amendment. 2. The I.Q. score and the other psychological data for E.M.R. placement. The role of the I.Q. test in the placement process must be determined next. Orders of this court have stopped the administration of the I.Q. tests for placement of black children since late 1974, but the relevant statutes still contain the testing requirement, and defendants wish to resume I.Q. testing for E.M.R. placement. Riles 2786-89. ' The statutory requirement is that an approved “verbal or non-verbal individual intelligence test” be administered (§ 56505), and placement normally is not permitted if the pupil “scores higher than two standard deviations below the norm, considering the standard error of measurement.” Cal.Educ. Code § 56506. In addition to the I.Q. scores, state law provides as follows: No pupil may be placed in a special education program for the mentally retarded unless a complete phychological [sic] examination by a credentialed school psychologist investigating such factors as developmental history, cultural background, and school achievement substantiates the retarded intellectual development indicated by the individual test scores. This examination shall include estimates of adaptive behavior. Until adaptive behavior scales are .normed and approved by the State Board of Education, such adaptability testing shall include, but is not limited to, a visit, with the consent of the parent or guardian, to the pupil’s home by the school psychologist or a person designated by the chief administrator of the district, upon the recommendation of the school psychologist, and interviews of members of the pupil’s family at their home. If the language spoken in the home is other than English, such interviews shall be conducted in the language of the home. Cal.Educ.Code § 56506. Another provision requires parental permission for placement into the E.M.R. program, Cal.Educ.Code § 56506, and there also are a number of “due process” guarantees set out in the statute. Cal.Educ.Code § 56507. Placement thus in theory can be permitted only if certain procedures are followed and a low score on the I.Q. tests is “substantiated” by other evidence. Defendants argue that, despite the critical importance of the I.Q. tests, in practice the test scores are not unduly relied upon for placement into the special classes. According to Mrs. Alice Bryant, Specialist, Psychological Services, of the Los Angeles Unified School District, Los Angeles Unified has never relied solely or primarily upon an I.Q. test score. On average, the school psychologist spends eight to ten hours gathering data, sifting data, collecting adaptive behavior information, and making a detailed study of the information collected. Bryant 8875-K. Similarly, Mr. Jack Schuetz, Director of Special Education for Kern Union High School District, testified as follows: In my personal experience the I.Q. test has never been a major criterion of exclusion, although of course, a disqualifying score can be a primary basis for exclusion. D-93, at 4. Mr. Hanson for the State Department of Education testified further that the I.Q. test was certainly one of the prime determinants, and he could think of none more important, but he did not believe it was the prime determinant. Hanson 3548-49. It is thus not disputed that the I.Q. scores played at least a substantial role in E.M.R. placement. Other testimony, however, suggests strongly that this assessment underestimates the real significance of the tests in many if not most instances. Robert White-neck, the Director of Special Education of the Sonoma County Office of Education and the Director of Special Education from 1965 to 1975 of the Berkeley schools, testified as follows: Q. Despite requirements in the Education Code that factors such as developmental history, adaptive behavior and medical history be assigned, is it your opinion that I.Q. tests were the primary determinant in E.M.R. placement? A. I feel definitely they were the prime determinant. Q. Can you explain why? A. There is a magic, I think, involved with the I.Q. test that has been trained into us in our schools of education, whether we be regular educators or special educators, and I think we seem to see that as some sort of a final, solid piece of data that we can use to make judgments. Q. Has it been your judgment that teachers and educators tend to look at the I.Q. scores as an objective criteria? A. They do, indeed, and they seem to quote scores and feel .that the number has some sort of very definite magic-determining effect on their decisions. Whiteneck 4241-42. Professor Alice Watkins, a professor at California State University in Los Angeles with considerable expertise with E.M.R. classes, also testified that prior to the moratorium the I.Q. test score was the chief determinant for placement. Watkins 4076-77. The only systematic empirical research into the placement process further documents the heavy emphasis in practice on I.Q. scores. In 1969, Professor Jane Mercer of the University of California at Riverside investigated the disproportionate enrollments of minorities in Riverside. She found that the overenrollment of minorities was directly attributable to the disparities in I.Q. scores between white and minority children. Mercer 1431-32 More recently, the State Department of Education’s only investigation of the E.M.R. placement process, undertaken from July 1975 through June 1976, made important findings with respect to how the children in E.M.R. classes had been placed there. The study, reported as “Systematic Program Development for Mentally Retarded Pupils: A State-Initiated Project 1975-76,” examined 26 school districts that had more than 15 . percent black overenrollment in E.M.R. programs. The moratorium on I.Q. testing was already in effect, but the information on I.Q. scores was available in the files of many children, most of whom had been placed when the I.Q. tests were permissible. The report stated that, even using a “liberal . . . interpretation of what constituted an estimate of adaptive behavior,” about one-third of the pupil records contained no estimates of pupil adaptive behavior. Furthermore, 16 of 25 districts admitted that they made little or no use of adaptive behavior information in the placement process. The report also revealed that more than one-quarter of the files surveyed revealed no “developmental history.” In San Francisco, for example, the study team found that a request for adaptive behavior information was found in 23 of the 47 files sampled, developmental histories were located in 35 of the 47, and records indicated the I.Q. scores in 46 of the 47. rpjjg record 0f the I.Q. score was clearly the most scrupulously kept record, and it appears to have been the most important one. The lure of the single, seemingly precise and objective measure, is no doubt strong. The available data suggest very strongly that, even if in some districts the I.Q. scores were not always determinative, they were pervasive in the placement process. This is hardly surprising. As pointed out by Judge Wright in his detailed discussion' of this problem, “Although test publishers and school administrators may exhort against taking test scores at face value, the magic of numbers is strong.” Hobson v. Hanson, 269 F.Supp. 401, 489 (D.D.C. 1907). Moreover, the entire placement process revolves around the I.Q. determination. Retardation is defined in terms of t