Johnson v. San Francisco Unified School Dist.

• Decision Date: 21 June 1974
• Docket Number: 71-2163,Nos. 71-1877,71-2105,71-2189 and 72-2980,71-1878,s. 71-1877
• Citation: 500 F.2d 349
• Parties: David JOHNSON et al., Plaintiffs-Appellees, v. SAN FRANCISCO UNIFIED SCHOOL DISTRICT et al., Defendants-Appellants (two cases). David JOHNSON et al., Plaintiffs-Appellees, v. SAN FRANCISCO UNIFIED SCHOOL DISTRICT et al., Defendants, Robert G. Nelson et al., Intervenors-Appellants (two cases). David JOHNSON et al., Plaintiffs-Appellees, v. SAN FRANCISCO UNIFIED SCHOOL DISTRICT et al., and National Association for the Advancement of Colored People, Defendants-Appellees, Guey Heung Lee et al., Plaintiffs in Intervention-Appellants. David JOHNSON et al., Plaintiffs-Appellees, v. SAN FRANCISCO UNIFIED SCHOOL DISTRICT et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 349

500 F.2d 349

David JOHNSON et al., Plaintiffs-Appellees, v. SAN FRANCISCO UNIFIED SCHOOL DISTRICT et al.,

Defendants-Appellants (two cases).

David JOHNSON et al., Plaintiffs-Appellees, v. SAN FRANCISCO UNIFIED SCHOOL DISTRICT et al., Defendants, Robert G. Nelson et al., Intervenors-Appellants

(two cases).

David JOHNSON et al., Plaintiffs-Appellees, v. SAN FRANCISCO UNIFIED SCHOOL DISTRICT et al., and National

Association for the Advancement of Colored People,

Defendants-Appellees, Guey Heung Lee et

al., Plaintiffs in

Intervention-Appellants.

David JOHNSON et al., Plaintiffs-Appellees, v. SAN FRANCISCO UNIFIED SCHOOL DISTRICT et al., Defendants-Appellants.

Nos. 71-1877, 71-1878, 71-2105, 71-2163, 71-2189 and 72-2980.

United States Court of Appeals, Ninth Circuit.

June 21, 1974.

Thomas M. O'Connor, City Atty. (argued), George K. Krueger, Deputy City Atty. (argued), Vivian Hannawalt (argued), Quentin L. Kopp (argued), San Francisco, Cal., for defendants-appellants.

Arthur Brunwasser (argued), San Francisco, Cal., for plaintiffs-Appellees.

J. Anthony Kline (argued), San Francisco, Cal., for amicus curiae.

Before MERRILL, KOELSCH and BROWNING, Circuit Judges.

OPINION

PER CURIAM:

This litigation was initiated by parents of black children attending public elementary schools in the San Francisco Unified School District. They seek desegregation of those schools. The schools of the District have never been subject to a statutorily imposed 'dual school system' separating blacks from whites. The plaintiffs contend that acts of de jure segregation have been committed by the school Board with the result that the responsibility fell upon the Board to desegregate the school system. The district court ruled in favor of the plaintiffs upon this issue and called upon the parties to submit plans for accomplishing desegregation. Two plans were submitted, one by the plaintiffs and one by the defendants. Both plans provided for the balancing not only of blacks and whites but of Chinese-Americans and other ethnic groups as well.

Before court hearings on the plans were scheduled to commence, parents of children of Chinese ancestry attending public elementary schools in the district sought leave to intervene. They additionally sought an order shortening time for service of the moving papers so that their application might be ruled upon in time for them to participate in those hearings. The district court refused to shorten time, and the hearings were held without their participation. Thereafter, the district court denied their application to intervene.

The court approved both plans and directed defendants forthwith to carry out desegregation of the elementary schools in the manner provided by one or the other of the two plans. Its findings and judgment are set forth in 339 F.Supp. 1315 (N.D.Cal.1971). Defendants elected to follow the plan which they themselves had submitted. They have been operating under that plan ever since.

I. De Jure Segregation

(Nos. 71-1877, 71-1878, 71-2163, and 71-2189)

District-wide integration has been the goal of the School Board for some time, and the plan under which it is now operating had been designed by it, prior to commencement of the instant suit, as a long-range plan to be accomplished gradually over a period of years. The question before us is not the desirability of district-wide integration, but whether the constitutional rights of the litigants necessitate immediate, court-ordered desegregation.

More particularly, this appeal presents the question whether the district court applied correct standards in determining that acts of de jure segregation were committed by the defendants. Since this case does not involve a statutorily created dual school system, we delayed taking submission of the case until the filing of the opinion of the Supreme Court in Keyes v. School District No. 1, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973). In Keyes, as here, the contention was that the 'School Board alone, by use of various techniques such as the manipulation of student attendance zones, school site selection and a neighborhood school policy, created or maintained racially or ethnically (or both racially and ethnically) segregated schools throughout the school district, entitling petitioners to a decree directing desegregation of the entire school district.' 413 U.S. at 191, 93 S.Ct. at 2689. In discussing the standards for determining whether de jure acts of segregation had been committed by a school board, the Court states:

'We emphasize that the differentiating factor between de jure and socalled de facto segregation to which we referred in Swann (v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 17-18, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971)) is purpose or intent to segregate.'

413 U.S. at 208, 93 S.Ct. at 2697.

This court, in Soria v. Oxnard School District Board of Trustees, 488 F.2d 579 (9th Cir. 1973), has construed Keyes as requiring for any finding of unconstitutional segregation a 'determination that the school authorities had intentionally discriminated against minority students by practicing a deliberate policy of racial segregation.' 488 F.2d at 585. ¹

Keyes and Soria were filed after the decision by the district court in this case. Quite understandably, therefore, the district court made no finding as to whether the School Board possessed the requisite segregatory intent. On the contrary, the district court treated proof of such intent as unnecessary. 'In the context of segregation,' it held, '(the term de jure) * * * means no more nor less than that the school authorities have exercised powers given them by law in a manner which creates or continues or increases substantial racial imbalance in the schools. It is this governmental action, regardless of the motivation for it, which violates the Fourteenth Amendment.' 339 F.Supp. at 1319. As Keyes and Soria have now made clear, the district court thereby applied an erroneous legal standard in determining that a constitutional violation had occurred.

Although the record contains evidence relevant to the question of the School Board's intent, it is not at all clear that the evidence is sufficient to permit a fair resolution of this issue. Because the litigants, like the district court, did not focus upon the issue of intent, we cannot be confident that all of the relevant and reasonably available evidence is now before us. The case must be remanded to afford an opportunity to reexamine the record on the issue of intent. Upon remand the district court will permit the parties to offer such additional evidence as they may desire pertaining to that issue.

The school district has been operating under the court-ordered desegregation plan since September, 1971. As in Soria, 'we shall not at this time undo that result.' 488 F.2d at 588. Therefore, the injunction shall remain in effect until the final resolution of the litigation, unless the district court in its discretion modifies it.

Nos. 71-1877, 71-1878, 71-2163, and 71-2189 are vacated and remanded for further consideration in light of Keyes v. School District No. 1, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973), and Soria v. Oxnard School District Board of Trustees, 488 F.2d 579 (9th Cir. 1973), and in accordance with the views here expressed. ²

II. Intervention

(No. 71-2105)

Parents of elementary school children of Chinese ancestry claim entitlement to intervene as a matter of right under Rule 24(a)(2), F.R.Civ.P. They oppose the compulsory reassignment of such students to schools outside the area in which they reside. Alleging, inter alia, that such reassignment will make it impossible for such children to attend community schools offering education in Chinese language, art, culture and history, they contend, on constitutional and equitable grounds, that they are not properly bound by the court's decree, or that, if they are so bound, they are entitled to participate in the fashioning of that decree.

Rule 24(a)(2) permits timely intervention when the applicant shows: (1) an interest relating to the property or transaction which is the subject of the action; (2) that the disposition of the action may as a practical matter impair or impede his ability to protect that interest; and (3) that the interest is not adequately represented by existing parties. ³

Appellants claim a sufficient interest in the outcome of the action to satisfy the first requirement of the rule. In Smuck v. Hobson, 132 U.S.App.D.C. 372 408 F.2d 175, 180 (1969), the District of Columbia Court of Appeals, sitting in banc, concluded that the 'concern (of parents seeking intervention in a desegregation suit) for their children's welfare' was sufficient under the circumstances to satisfy that requirement. ⁴ We adopted the general rationale of Smuck in Spangler v. Pasadena City Board of Education, 427 F.2d 1352, 1353 (9th Cir. 1970), but there we reached a different result because the third requirement of the rule was not satisfied. Moreover, other courts have recognized that, for purposes of Rule 24(a)(2), all students and parents, whatever their race, have an interest in a sound educational system and in the operation of that system in accordance with the law. ⁵ That interest is surely no less significant where, as here, it is entangled with the constitutional claims of a racially defined class.

The second requirement of the rule, that the applicant be 'so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest,' is similarly satisfied. It is true that here the denial of intervention may leave appellants the practical alternative of asserting in a subsequent lawsuit that the new policies adopted by the school district are unconstitutional. However, appellants additionally seek to influence the manner in which the school district exercises its admitted discretion in formulating and implementing such...