By Kimberly A. Smith
Edited by Barbara Kate Repa
Redistributing California's Schoolchildren
When Califorians were asked to vote in November 1996 on Proposition 209's proposal to eliminate affirmative action, passions ran high. The proposition passed with 54 percent of the vote, resulting in the following amendment to the California Constitution: "The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." (Cal. Const., Art. I, § 31.)
Some believed that existing school-admission programs designed to correct perceived racial inequities in the student population were suddenly invalidated and that the trend in California law toward alleviating racial segregation in schools, regardless of its cause, could be threatened.
In its last term, the U.S. Supreme Court decided two companion cases in which the Sixth and Ninth Circuit courts had upheld school-district policies requiring minimum nonwhite attendance in elementary and secondary schools. Of particular interest to California was the Ninth Circuit case involving a school district in Seattle, as the Washington statute is virtually identical to Prop. 209. Although the Ninth Circuit had previously ruled that Prop. 209 does not violate the federal Constitution, a U.S. Supreme Court ruling in favor of school-district diversity policies might have created some new flexibility in the application of the California law. Instead, however, the Court ultimately ruled against the school districts and their voluntary programs.
RACIAL POLICIES PRIOR TO PROP. 209
Even before the landmark case of Brown v. Board of Education (347 U.S. 483 (1954)), California was at the forefront of promoting racial desegregation in education. In Piper v. Big Pine School District of Inyo County (193 Cal. 664 (1924)), a 15-year-old Native American student attempted to enroll in the public school in her district. The school denied admittance, advising the student that she must attend the federally run Indian school in the area. The California Supreme Court held that denying the student admittance to the public school system solely because of color or racial difference without ensuring that she would receive an equal education violated the 14th Amendment. Although the school's policy was consistent with the "separate but equal" education doctrine that was the norm in the early 20th century, the court nonetheless emphasized the existence of a right to a K—12 education, stating that public schools are "doorways opening into chambers of science, art, and the learned professions, as well as into fields of industrial and commercial activities. ... These are rights and privileges that cannot be denied." (193 Cal. at 673.)
With Brown v. Board of Education, de jure discrimination policies of "separate but equal" were deemed to violate the Equal Protection Clause and held no longer permissible—and, as in much of the country, California courts decided cases with an eye to desegregating public schools. In Jackson v. Pasadena City School District (59 Cal. 2d 876 (1963)), for example, a 13-year-old African American student was denied transfer from a racially segregated and inferior school to another junior high school in the district. The lawsuit was challenged at the pleading stages, resulting in the holding that the student had stated a valid claim for violations of equal protection and due process rights.
The California Supreme Court noted the general challenge schools would find in implementing Brown in neighborhoods that were already segregated. However, it concluded that the schools were required to find solutions, holding that: "The harmful consequences of segregation require that the school boards take steps, insofar as reasonably feasible, to alleviate racial imbalance in school regardless of its cause." (59 Cal. 2d at 882.)
The issue of curing "naturally" occurring racial imbalance came before the California Supreme Court 13 years later in Crawford v. Board of Education (17 Cal. 3d 280 (1976)). There, the court considered whether the board of education was obligated to take affirmative steps to remedy severe segregation. Referring to Jackson as a starting point, the court concluded that there was a constitutional obligation to undertake reasonably feasible steps to alleviate racial segregation, considered a "constitutional evil" regardless of its cause. It noted, however, that while some deference would be given to school boards attempting to implement meaningful programs, the programs could not be based solely on percentages. Rather, a program would be considered meaningful when it tried to eliminate segregation that was so disproportionate as to realistically isolate minority students from other students, depriving them of an integrated educational experience.
In November 1979, while the Crawford case was back in the trial court for evaluation of the desegregation plan, California voters passed Proposition I. This proposition, which modified the state constitution, attempted to remove the affirmative obligation of a school board to remedy past discrimination. Specifically, a court could not order a school board to implement a desegregation plan unless a particular school policy affirmatively violated the Equal Protection Clause. The U.S. Supreme Court then reversed Crawford and upheld the proposition in 1982, reasoning that Californians could reverse the prior court decisions as long as the minimum requirements of the 14th Amendment were preserved. (Crawford v. Board of Educ., 458 U.S. 527.) In other words, California courts could no longer require that schools adopt and implement desegregation plans, although individual schools were free to continue to do so.
PROP. 209 AND ITS AFTERMATH
Fourteen years later, with the passage of Prop. 209, California voters attempted to take the Crawford reversal a step further. Many believed not only that a court could not require a school to implement a desegregation plan, but also that schools could no longer voluntarily implement such a plan. Many have argued that under Prop. 209 the very mention of race in a school policy, even for the purpose of correcting racial inequities, was now discriminatory and impermissible.
One of the first cases to consider the impact of Prop. 209 was Crawford v. Huntington Beach Union High School (98 Cal. App. 4th 1275 (2002)). There, the school district used a racial-balancing component in its transfer policy. In defending the policy, the district relied on California Education Code section 35160.5, which states that "school districts shall retain the authority to maintain appropriate racial and ethnic balances among their respective schools at the school districts' discretion or as specified in applicable court-ordered or voluntary desegregation plans." The court of appeal held that, under Prop. 209, this statutory provision was unconstitutional and the school district would have to abandon its policy. More specifically, the court disagreed with the argument that Prop. 209 was never meant to eliminate school-integration programs. Ultimately, it held that because there was no federal constitutional mandate necessitating a proactive program of integration, all such programs must be eradicated.
More recently, however, California courts have dismissed efforts to eliminate school-diversity programs using Prop. 209. The Pacific Legal Foundation (PLF), a self-described "public interest legal organization dedicated to limited government, property rights, and individual liberty," sued the Berkeley Unified School District in 2003, challenging several voluntary racial-desegregation policies. (See Avila v. Berkeley Unified Sch. Dist., 2004 WL 79325 (April 6, 2004).) The school district demurred to the lawsuit, arguing that PLF's interpretation and application of Prop. 209 conflicted with the Equal Protection Clause of both the U.S. and California constitutions. (Cal. Const., Art. 1, § 7.) The Alameda Superior Court sustained the demurrer, holding that the voluntary plan passed muster, reasoning that: "It is not a quota. It does not provide for special notice. And it does not show favoritism. It provides for race or ethnicity as one of many criteria for the placement of children in elementary schools, to 'strive' to have each school's demographics within plus or minus 5% of the district-wide demographics."
Other California courts have also been unwilling to find that voluntary desegregation policies are unconstitutional on their faces. (See Neighborhood Schools for Our Kids v. Capistrano Unified Sch. Dist., No. 05-07288; Orange County Superior Court; August 25, 2006, order denying plaintiff's motion for summary judgment.)
EVALUATING DESEGREGATION POLICIES
In 2003 the U.S. Supreme Court considered two lawsuits regarding admissions policies at the University of Michigan: one at the undergraduate campus and another at the law school. In both cases, the applicants' race was considered for the stated purpose of promoting racial diversity in the student body. However, differences in the policies resulted in the Court's approving one of them and rejecting the other.
In Gratz v. Bollinger (539 U.S. 244), the Court considered whether the university's undergraduate admissions procedure, which automatically allotted underrepresented minorities 20 points on a 150-point index, violated the Equal Protection Clause of the 14th Amendment. The Court held that it did, because the policy was not narrowly tailored to achieve the university's compelling interest in achieving racial diversity. Specifically, the policy did not take into account characteristics of the applicant so as to evaluate the individual's ability to contribute to the unique setting of higher education. Significantly, while the Court did not approve the particular policy, it unequivocally held that racial diversity was a compelling interest in higher education.
In a companion case, Grutter v. Bollinger (539 U.S. 306), the Court upheld the University of Michigan's law school admissions policy that considered race as one of several variables on an application. In that case, the law school looked at the applications as a whole and then tried to ensure that a "critical mass" of underrepresented minority students was accepted into the entering class. In explaining why this program was constitutional, the Court referred to five features of a narrowly tailored plan originally set out by the Ninth Circuit: individual consideration of applicants; the absence of quotas; serious, good-faith consideration of race-neutral alternatives to the program; no undue harm to any member of any racial group; and an end point or sunset provision on the plan.
RECENT SUPREME COURT HOLDINGS
The question remained whether the Gratz and Grutter holdings would be limited to university settings or could be applied to public elementary and secondary schools. That question was answered recently when the U.S. Supreme Court decided Parents Involved in Community Schools v. Seattle School District No. 1 together with Meredith v. Jefferson County Board of Education (127 S. Ct. 2738 (2007)).
In these cases, the Court reviewed the constitutionality of two school districts' voluntary student-assignment plans intended to prevent racial segregation in the student population. In the Seattle district, the school used race as one of several tiebreakers in a school-selection process, with the goal of having at least 45 percent nonwhite students at any one campus. The district had never operated legally segregated schools, nor had it ever been ordered by a court to implement desegregation measures.
In the school district in Jefferson County, racial classifications were used in making assignments to ensure at least 15 percent nonwhite students at each school. Though the district had been the subject of a desegregation decree, the order had been dissolved when the district court determined that all vestiges of prior discrimination had been eliminated.
The circuit courts deciding both cases found that the policies did not violate the Equal Protection Clause and were narrowly tailored to serve the compelling interest of maintaining racially diverse schools. Thus, these courts applied the "strict scrutiny" test long established as the analytical framework for government action based on individual racial classifications.
Using that same analytical model, the Supreme Court reversed. The Court reasoned that both systems resulted in discrimination against individual students on the basis of race. Applying the strict-scrutiny test, it held that the school districts had failed to demonstrate that the classifications were narrowly tailored to achieve a compelling government interest. Though the Court was willing to find that remedying past segregation was a compelling government interest, it refused to find that ensuring racial diversity in an effort to avoid trending toward segregation was also compelling. Because both the Seattle and Kentucky districts had no existing segregation problems to remedy, the Court found the policies unconstitutional under the Equal Protection Clause.
The Court noted that it would not apply its previous holdings that diversity in a postsecondary setting was a compelling interest. Unlike those cases, the Court reasoned that the school districts were not considering race "as part of a broader effort to achieve 'exposure to widely diverse people, cultures, ideas, and viewpoints.' " (127 S. Ct. at 2753, quoting Grutter, 539 U.S. at 330.) The Court noted that the programs spoke in "limited notions of diversity" by using the terms of "white/nonwhite" in Seattle and "black/other" in Kentucky. Without taking into account the true complexity of all racial classifications in the community, the Court opined, the policies did not genuinely seek to provide students with the educational and social benefits purported to flow from racial diversity.
The Court concluded that a system that takes race into consideration is just as discriminatory and illegal as the historical systems that required segregated schools. Specifically, it held: "Allowing racial balancing as a compelling end in itself would 'effectively assure that race will always be relevant in American life, and that the 'ultimate goal' of 'eliminating entirely from governmental decisionmaking such irrelevant factors as a human being's race' will never be achieved.' " (127 S. Ct. at 2758, quoting City of Richmond v. J.A. Cronson Co., 488 U.S. 469 at 495 (1989). The Court further stated that, "Government action dividing us by race is inherently suspect because such classifications promote 'notions of racial inferiority and lead to a politics of racial hostility.' " (127 S. Ct. at 2767, quoting Cronson, 488 U.S. at 493.)
Justice Clarence Thomas, in his concurring opinion, opined that racial balance was an illegitimate objective in a society operating under a color-blind Constitution. Thus, he concluded that, just as in Brown v. Board of Education, a classification and separation based on race denoted inferiority and cannot be permitted.
The question now remains whether the U.S. Supreme Court decision in Parents will compel a different result in California under its specific Equal Protection analysis. Ultimately, each school district program will need to be reviewed on its facts to determine if a sufficient compelling government interest has been asserted and whether the program is narrowly tailored to support that interest.
Kimberly A. Smith (firstname.lastname@example.org) is a partner with the education law firm of Fagen, Friedman & Fulfrost in Los Angeles. She thanks law clerk Maggy Athanasious for her research and contributions to this article.
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