Diaz v. San Jose Unified School Dist.

• Decision Date: 17 May 1984
• Docket Number: No. 81-4434,81-4434
• Citation: 733 F.2d 660
• Parties: 17 Ed. Law Rep. 479 Arnulfo M. DIAZ and Socorro Diaz, as the parents and next friends of Fernando Diaz, Miguel A. Diaz and Juan F. Diaz; Jose Vasquez, as the parent and next friend of David Vasquez, individually and on behalf of all other persons similarly situated, Plaintiffs-Appellants, v. SAN JOSE UNIFIED SCHOOL DISTRICT, Charles Knight, individually and as District Superintendent of the San Jose Unified School District; Neil H. Geier, Jr., Elizabeth J. Allen, Edwin P. Jones, Jr., Mary K. McCreath, and Donald L. Raimondi, individually and as members of the Board of Education of the San Jose Unified School District, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 660

733 F.2d 660

17 Ed. Law Rep. 479

Arnulfo M. DIAZ and Socorro Diaz, as the parents and next friends of Fernando Diaz, Miguel A. Diaz and Juan F. Diaz Jose Vasquez, as the parent and next friend of David Vasquez, individually and on behalf of all other persons similarly situated, Plaintiffs-Appellants, v. SAN JOSE UNIFIED SCHOOL DISTRICT, Charles Knight individually and as District Superintendent of the San Jose Unified School District; Neil H. Geier, Jr., Elizabeth J Allen, Edwin P. Jones, Jr., Mary K. McCreath, and Donald L Raimondi, individually and as members of the Board of Education of the San Jose Unified School District, Defendants-Appellees.

No. 81-4434.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 12, 1983.

Decided May 17, 1984.

Stephen Kociol, Community Legal Services, San Jose, Cal., for plaintiffs-appellants.

George Smith, Sunnyvale, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before BROWNING, Chief Judge, and CHOY, WALLACE, SNEED, TANG, SCHROEDER, FLETCHER, ALARCON, FERGUSON, NELSON and BOOCHEVER, Circuit Judges.

FLETCHER, Circuit Judge:

Plaintiffs, parents of all Spanish-surnamed children attending school in the San Jose Unified School District (the District), appeal the district court's ruling that the District did not act with segregative intent in maintaining ethnically imbalanced schools. After a careful review of the record, we conclude that the district court's finding that the defendants acted without segregative intent was clearly erroneous. Accordingly, we reverse.

I. BACKGROUND.

The Board of Education of the San Jose Unified School District (the Board) has been aware since at least 1962 that its schools are segregated. The district is long and narrow: about sixteen miles long and from one and one-half to four miles wide. Hispanics are concentrated in the northern downtown area while the southern, suburban neighborhoods are largely Anglo. In 1973, Spanish-surnamed students made up 24.6 percent of the population of the district. In the southern schools, only .07 percent of the students were Spanish-surnamed, while in the northern schools 78.8 percent were Spanish-surnamed. State law requires the Board to take affirmative steps to desegregate its schools. The Board made repeated announcements endorsing the concept of desegregation. Nonetheless, between 1962 and 1973, the school board did nothing to alleviate the imbalance. Indeed, the Board took many steps that maintained segregation and rejected available, less segregative courses of action.

In 1971, the plaintiffs filed a class action on behalf of all Spanish-surnamed students enrolled in the District and their parents. The complaint charged that defendants were operating a segregated public school system in violation of the Fourteenth Amendment and sought desegregation of the school district. After trial to the court, the district court found that the school district was racially imbalanced and that defendants had maintained the imbalance. The court, however, denied remedial relief because it decided that defendants had acted without segregative intent. Diaz v. San Jose Unified School District, 412 F.Supp. 310 (N.D.Cal.1976) (Diaz I ).

On appeal, this court vacated and remanded for reconsideration. Diaz v. San Jose Unified School District, 612 F.2d 411, 416 (9th Cir.1979) (Diaz II ). We found that "[a]n inference of segregative intent arose from the appellants' proof," Id. at 415. The district court had, however, impermissibly concluded that the school district's racially neutral neighborhood school policy "constituted either a complete defense to a charge of segregative intent, or, completely dispelled the inferences of segregative intent that flowed from the appellants' proof." Id. We held that "[s]trict adherence to a neighborhood policy is no more than circumstantial evidence that bears upon the existence or non-existence of segregative intent. The existence of such a policy is not enough to prove the absence of segregative intent." Id. at 416.

On remand, the district court required rebriefing and argument but took no new evidence. Once again, the court found the evidence insufficient to support a finding of segregative intent, holding that "the adherence to a neighborhood school policy by the school officials in the [San Jose Unified School District] was not a device for maintenance of segregated schools, although that effect was clearly foreseeable and was clearly foreseen by the school officials." Diaz v. San Jose Unified School District, 518 F.Supp. 622, 644 (N.D.Cal.1981) (Diaz III ). Plaintiffs appeal.

II. DISCUSSION.

A. The Need to Prove Segregative Intent.

The Board admits that it has maintained ethnically imbalanced schools and has omitted courses of action that would have reduced that imbalance. Plaintiffs presented overwhelming evidence that the Board's actions "knowingly perpetuated ethnic imbalance in the schools." Diaz III, 518 F.Supp. at 642. Nonetheless, de facto segregation in the schools does not, without more, prove a violation of the Fourteenth Amendment. The plaintiffs must prove not only that the defendants' actions created or maintained racial or ethnic imbalance in the schools, but also that those actions were motivated by segregative intent. See Keyes v. School District No. 1, 413 U.S. 189, 208, 93 S.Ct. 2686, 2697, 37 L.Ed.2d 548 (1973); Diaz I, 412 F.Supp. at 328-29.

Ordinarily, only circumstantial evidence is available to establish segregative intent. Evidence of the discriminatory impact of decisions is one sort of circumstantial evidence supporting an inference of segregative intent.

The impact of the official action--whether it "bears more heavily on one race than another" ...--may provide an important starting point. Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face.

Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 564, 50 L.Ed.2d 450 (1977). Proof that the segregative effects of a decision were foreseeable is not to be taken, as a general proposition, to make out a prima facie case of segregative intent, nor does it routinely shift the burden of persuasion to the defendants. See Dayton Board of Education v. Brinkman, 443 U.S. 526, 536 n. 9, 99 S.Ct. 2971, 2978 n. 9, 61 L.Ed.2d 720 (1979) (Dayton ). Nonetheless, "proof of foreseeable consequences is one type of quite relevant evidence of racially discriminatory purpose...." Id. See also Columbus Board of Education v. Penick, 443 U.S. 449, 464-65, 99 S.Ct. 2941, 2949-50, 61 L.Ed.2d 666 (1979) (Columbus ). ¹ Other circumstantial evidence relevant to the proof of segregative intent includes the historical background and specific sequence of events leading up to the Board's actions maintaining or exacerbating ethnic imbalance in district schools. See Arlington Heights, 429 U.S. at 267-68, 97 S.Ct. at 564-65. We will focus our review on these latter aspects of the proof, for the defendants concede that they knowingly perpetuated segregation.

B. Standard of Review.

We examine the district court's findings of fact and its ultimate conclusion as to the Board's intent under the clearly erroneous standard:

discriminatory intent is a finding of fact to be made by the trial court.... [It] means actual motive; it is not a legal presumption to be drawn from a factual showing of something less than actual motive. Thus, a court of appeals may only reverse a district court's finding on discriminatory intent if it concludes that the finding is clearly erroneous under Rule 52(a).

Pullman-Standard v. Swint, 456 U.S. 273, 289-90, 102 S.Ct. 1781, 1790-91, 72 L.Ed.2d 66 (1982). Accord Dayton, 443 U.S. at 534, 99 S.Ct. at 2977; Columbus, 443 U.S. at 468, 99 S.Ct. at 2952 (1979) (Burger, C.J., concurring).

Under this standard the district court's factual finding of lack of segregative intent may be set aside only if, "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum, 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948); Anti-Monopoly, Inc. v. General Mills Fun Group, Inc., 684 F.2d 1316, 1318 (9th Cir.1982).

In this case our careful review of the record leaves us with such a firm conviction. The district court has made comprehensive and accurate findings covering the significant historical facts, but we are firmly convinced that it erred when it reached the ultimate conclusion that these facts do not compel a finding of segregative intent.

C. The Neighborhood School Policy.

The significance of the Board's adherence to a "neighborhood school policy" was central to the district court's analysis. This policy requires students to attend the schools nearest their homes. The Board has, with few exceptions, adhered to this policy rigidly and refused to allow voluntary transfers for any purpose, including voluntary desegregation. ² Although a neighborhood school policy has been used by school districts to justify segregation, see Dayton, 443 U.S. at 533 n. 7, 99 S.Ct. at 2976 n. 7; Columbus, 443 U.S. at 461-62 & n. 8, 99 S.Ct. at 2948-49 & n. 8; Keyes, 413 U.S. at 206, 93 S.Ct. at 2696, adherence to such a policy is not by itself dispositive of segregative intent. We recognized in our previous opinion that the neighborhood school policy "is merely relevant evidence to be taken into account in deciding whether the forbidden intent did or did not exist." Diaz II, 612 F.2d at 415. It "does not have constitutional implications one way or the other without a penetrating examination of the complete context in which the neighborhood policy was initially applied and subsequently enforced." Id.

We must distinguish,...