White v. Engler

188 F.Supp.2d 730

Anita WHITE, Eugene Seals, Bianca Kelly, James Smith, Michelle Miller, Maria Salinas, and all those similarly situated, and the National Association for the Advancement of Colored People, Michigan State Conference, Plaintiffs, v. John ENGLER, Governor, State of Michigan, in his official capacity; Michigan Merit Award Board; Mark A. Murray, State Treasurer, in his official capacity; Michigan Department of Treasury; Dorothy Beardmore, President of State Board of Education, in her official capacity; State Board of Education; Arthur E. Ellis, Superintendent of Public Instruction; State Department of Education, Defendants.

No. 00-CV-72882-DT.

United States District Court, E.D. Michigan, Southern Division.

November 19, 2001.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Michael S. Maurer, Daniel Kohrman, Kristan S. Mayer, U.S. Dept. of Justice, Civil Rights Div., Educational Opportunities Section, Washington DC, for U.S.

LaPointe & Assoc., Jeffrey J. Bulter, Okemos MI, for Amicus Michigan Ass'n of Secondary School Principals.

Kary L. Moss, Michael J. Steinberg, American Civil Liberties Union Fund of MI, Detroit, MI, Patricia Mendoza, Marta Delgado, Mexican American Legal Defense Fund, Chicago, IL, Michael Pitt, Peggy Goldberg Pitt, ACLU of MI Cooperating Attys, Royal Oak, MI, Adele P. Kimmel, Trial Lawyers for Public Justice, Washington DC, Judy Martin, ACLU of MI Cooperating Atty., Okemos, MI, for plaintiff.

Elaine F. Fischhoff, Edith C. Harsh, Jane O. Wilensk, Mark S. Meadows, Deborah Garcia-Luna, Educ. Div., Lansing MI, for defendant.

OPINION

DUGGAN, District Judge.

This is a proposed class action civil rights suit in which Plaintiffs allege that the State of Michigan's Merit Award Scholarship Program perpetuates racial and ethnic bias and discriminates against African Americans, Hispanics, Native Americans, and educationally disadvantaged high school students in direct contravention of Title VI of the Civil Rights Act of 1964 and its implementing regulations, 42 U.S.C. § 2000d and 34 C.F.R. §§ 100.1 et seq., the Equal Protection Clause of the Fourteenth Amendment, and 42 U.S.C. § 1983. This matter is currently before the Court on Defendants' motion to dismiss. For the reasons stated below, Defendants' motion to dismiss shall be denied.

Background

The Michigan Merit Award Scholarship Program ("the Merit Award Program") was established in 1999. See MICH. COMP. LAWS §§ 390.1451-.1459. Under the Merit Award Program, students are eligible for "merit awards" in amounts ranging from $1,000 for approved out-of-state post-secondary educational institutions to $2,500 for approved in-state post-secondary educational institutions. The Merit Award Program is financed exclusively through a trust fund established with the revenues of a multi-state settlement agreement with tobacco manufacturers and private donations to the trust fund. Id. § 390.1453.

The Merit Award Program is administered by a seven-member Merit Award Board ("the Board") within the Department of Treasury, comprised of the State Treasurer, the Superintendent of Public Instruction, the Director of the Department of Career Development, and four members appointed by the Governor. Id. § 390.1454. The Board is responsible for developing eligibility criteria and procedures, as well as maintaining a list of approved post-secondary educational institutions.

In general, all students who (1) have graduated from high school or passed a state-approved graduate equivalency examination such as the general educational development ("GED") test, (2) are enrolled in an approved post-secondary educational institution or vocational or technical education program at an approved post-secondary educational institution, and (3) have not been convicted of a felony involving an assault, physical injury, or death, are eligible for a merit award. Id. § 390.1457. There are three ways in which to qualify for a merit award, all of which require a Level 1 (Exceeded Michigan Standards) or Level 2 (Met Michigan Standards) score in at least two of the subject matter areas of reading, writing, mathematics, and science on the Michigan Education Assessment Program High School Test ("MEAP Test"):¹

(1) receive a Level 1 or Level 2 score in each of the subject areas of reading, writing, mathematics, and science on the MEAP Test;

(2) receive a Level 1 or Level 2 score in at least two of the subject areas of reading, writing, mathematics, and science on the MEAP Test and receive an overall score in the top 25% of a nationally recognized college admission examination such as the SAT or ACT test; or

(3) receive a Level 1 or Level 2 score in at least two of the subject areas of reading, writing, mathematics, and science on the MEAP Test and receive a qualifying score or scores as determined by the Merit Board on a nationally recognized job skills assessment test designated by the Board.

See id. § 390.1457. Although MEAP Test scores are not the sole criteria in each category, eligible students must, at a minimum, receive a Level 1 or Level 2 score in at least two subject areas on the MEAP Test to qualify for a merit award. Therefore, MEAP Test scores are an integral part of the Merit Award Program.

The MEAP Test, developed and administered by the Research, Evaluation, and Assessment Services of the Michigan Department of Education, was created in 1969 by the State Board of Education to provide the Board of Education, the Legislature, local educators, and parents with an assessment of the quality and effectiveness of a school's educational curriculum by measuring overall student performance. See MICH. COMP. LAWS § 388.1081; (2d Am. Compl. ¶¶ 41-45 & Ex. F (Bureau of Res., Evaluation, & Assessment, Mich. Dep't of Educ., No. 7, Dec. 1970)). MEAP Tests in math and reading are given in the fourth, seventh, and eleventh grades, and MEAP tests in science, social studies, and writing are given in the fifth, eighth, and eleventh grades.²

The first merit awards were based on MEAP Test scores from Spring 1999 (administered before the Merit Award Program was enacted). The results were announced in September of 1999 and the first merit awards were awarded to students beginning their post-secondary education in the Fall of 2000.

Of the total number of 66,419 students taking all four subject areas of the MEAP Test in 1999, 56% were white (37,458), 9.6% were African American (6,388), 1.77% were Hispanic (1,175), and 0.8% were Native American (537). (2d Am. Compl., Ex. 1 (Heller Rep. at 2)).³ Of the 20,138 students who qualified for a merit award,⁴ 63% were white (12,170), 2.2% were African American (448), 1.19% were Hispanic (239), and 0.5% were Native American (104).⁵ Id. This means that 33.9% of eligible whites, 7.0 % of eligible African Americans, 20.3 % of eligible Hispanics, and 19.4% of eligible Native Americans qualified for merit awards. Id. In addition, 10.1% of the students taking all four subject area tests were from unaccredited public high schools (6,743), of which 4.9% qualified for a merit award (330). In other words, only 1.6% of the 20,138 students who qualified for a merit award were from unaccredited schools. (2d Am. Compl., Ex. 2 (Silver Aff., Table 2)).

Relying on these numbers, Plaintiffs assert that the Merit Award Program "has had a substantial discriminatory impact on African American, Hispanic, and Native American students," as well as "educationally disadvantaged students, defined as those who attend public high schools deficient in meeting the State accreditation criteria." (2d Am.Compl.¶¶ 35-36). Plaintiffs assert that from the time the Merit Award Program was first proposed in 1999, "the Michigan Legislature, Governor Engler, and the other Defendants had full knowledge of substantial disparities and inequities in the educational curricula among the States 555 school districts, as reflected in MEAP test results and other MEAP data since the program's inception" and that the Merit Board's criteria "were adopted by the Governor and the Michigan Legislature with full knowledge that the criteria would deny scholarships to minority and educationally disadvantaged students who, despite their disadvantage, gained admission to post secondary institutions." (2d Am.Compl.¶¶ 48-49).

On June 27, 2000, Plaintiffs filed a class action complaint against: 1) Governor John Engler, who signed the bill establishing the Merit Award Program; 2) the Merit Award Board; 3) the State Treasurer; 4) the Michigan Department of Treasury, which was entrusted with implementing the Merit Award Program; 5) the President of the State Board of Education; 6) the State Board of Education, which created the MEAP Test; 7) the Superintendent of Public Instruction; and 8) the Department of Education, which administers the MEAP Test.⁶ Plaintiffs' original complaint challenged the Merit Award Program under Title VI of the Civil Rights Act and its implementing regulations on grounds of disparate treatment and disparate impact (First Claim) and the Equal Protection Clause of the Fourteenth Amendment (Second Claim). On September 13, 2000, Plaintiffs filed a first amended complaint adding the National Association for the Advancement of Colored People ("NAACP") as a plaintiff and adding a third claim under 42 U.S.C. § 1983 (Third Claim).

However, on April 24, 2001, the Supreme Court decided Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). As explained in Sandoval, § 601 of Title VI prohibits intentional discrimination, and provides that no person shall "on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity" covered by Title VI. Id. at 1515. Section 602 "authorizes federal agencies `to effectuate the provisions of [§ 601] ... by issuing rules, regulations, or orders of general applicability.'" Id. 34 C.F.R. § 100.3(...