The Ninth Circuit Does Its Homework and Leaves the Supreme Court with an Assignment: Settle the Question Whether Title VII's Antidiscrimination Provisions Apply To

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I. INTRODUCTION

It took eleven judges of a circuit court sitting at one time, but when the Ninth Circuit issued its en banc opinion in Association of MexicanAmerican Educators v. California,1 it marked the first time that a United States Court of Appeals held that Title VII's antidiscrimination provisions2 apply to a state that requires teachers to pass a certification examination in order to teach in public schools. Though the Association of Mexican-- American Educators (AMAE) court also held that California's Basic Education Skills Test ("CBEST") was a properly administered examination, thereby denying relief to the plaintiffs--a class of minority educators who had sued California because minorities have disproportionately failed the exam since 1983, when California began conditioning teacher certification upon passing the CBEST3--the decision by the court to require California to defend its examination represented a major victory toward providing Title VII with the reach Congress intended it to have. In doing so, however, the Ninth Circuit "created a circuit split on a national issue of great importance."4

While Judge Kleinfeld, who concurred in part and dissented in part from the majority's opinion, argued that the Ninth Circuit should not have created "cert bait"5 where it could have avoided the issue this Comment applauds the AMAE court for taking the first step toward giving victims of discrimination the protection Congress intended when it enacted Title VII. While other circuits have expressed sympathy for plaintiffs unable to identify a party to sue when state licensing procedures dictated that a local school district not employ individuals who failed to pass the state-imposed exam,7 the Ninth Circuit correctly perceived that Congress intended the party creating discrimination to be held accountable unless they provide an acceptable justification.

Title VII of the Civil Rights Act of 1964 was designed to prohibit discrimination in the workplace. In 1972, Congress subjected state and local governments, and their agencies and subdivisions, to the same liability as any other employer,9 and the Supreme Court subsequently upheld this abrogation as valid under Section Five of the Fourteenth Amendment.10

At a time when the United States finds itself debating how it wants to structure our educational systems and what it will demand from the teachers in those systems, many are calling for greater use of teacher certification examinations.11 Thus, it is only a matter of time before the Supreme Court will be called upon to resolve the circuit split concerning the applicability of Title VII's antidiscrimination provisions to a state administering a teacher certification exam. When that day comes, one hopes the Court will have learned a lesson from its experience in the late 1980s, when it sought to narrow the application of Title VII and was unequivocally rebuffed by Congress.12

This Comment contends there should be a strong presumption that a state is an employer of public school teachers for purposes of Title VII and that the state should be held liable if it fails to hire or fires or discriminatorily interferes with an individual's employment opportunities because of the person's race, color, religion, sex, or national origin. It supplements the argument made by the Ninth Circuit in AMAE by providing a more extensive analysis of the text of Title VII and its legislative history and case history. When a state requires public school teachers to pass proficiency exams, either to be eligible initially for employment or as a means of maintaining their eligible employment status, and when plaintiffs demonstrate that the exam has a disparate impact,13 the state should be required to prove that there is a genuine business necessity for the exam and that the exam has been properly validated. 14

Part II of this Comment explores the legislative history of Title VII and the development of disparate impact theory in Griggs v. …