Berkelman v. San Francisco Unified School Dist.

• Decision Date: 01 July 1974
• Docket Number: No. 73-1686,73-1686
• Citation: 501 F.2d 1264
• Parties: Wendy BERKELMAN, Through Pearl Berkelman, her next friend and natural guardian, et al., Appellants, v. SAN FRANCISCO UNIFIED SCHOOL DISTRICT et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1264

501 F.2d 1264

Wendy BERKELMAN, Through Pearl Berkelman, her next friend and natural guardian, et al., Appellants, v. SAN FRANCISCO UNIFIED SCHOOL DISTRICT et al., Appellees.

No. 73-1686.

United States Court of Appeals, Ninth Circuit.

July 1, 1974.

Susanne Martinez (argued) of Youth Law Center, San Francisco, Cal., for appellants.

Burk Delventhal, Deputy City Atty. (argued), San Francisco, Cal., for appellees.

David M. Heilborn (argued) of McCutchen, Doyle, Brown & Enersen, San Francisco, Cal., for intervener.

Before BROWNING, DUNIWAY and GOODWIN, Circuit Judges.

ALFRED T. GOODWIN, Circuit Judge:

The district court denied injunctive and other relief in this civil rights action challenging the San Francisco Unified School District's standards for admitting students to Lowell High School. Appellants, claiming to represent a class of students denied admission, have appealed.

Lowell High School is an academic, or college-preparatory, public high school which accepts each year those applicants for admission whose prior academic achievement places them within approximately the top 15 per cent of the junior-high-school graduates in the district.

The issues on appeal, phrased broadly, are: (1) whether a school district may admit students to a preferred high school on the basis of past academic achievement if the percentage of black, Spanish-American, and low-income students who qualify for admission is substantially disproportionate to the percentage of black, Spanish-American, and low-income students in the school district at large; ¹ (2) whether a school district, in order to maintain equal numbers of boys and girls in the school, may apply higher admission requirements to girls than to boys. ²

I

The district operates eleven high schools. Seven are 'comprehensive' high schools, to which students are assigned substantially on the basis of residence. The other four high schools have special educational objectives and accept qualified students from anywhere in the district. Lowell, one of these special schools, offers advanced, college-preparatory courses. Others serve students who need special help because of language or other problems, who work part-time, or who desire vocational training.

Except for students admitted under a pilot minority-admissions program (see n.1), or under the balancing-of-the-sexes policy at issue in this case, admission to Lowell is based solely upon a student's junior-high-school grade-point average in four college-preparatory subjects. All applicants in the district are ranked numerically by their junior-high-school grade-point averages, and students are admitted in their numerical order until their class is filled. Grade averages are not weighted according to schools in which they were earned. All junior-high grades are accepted at face value, regardless of neighborhood or demographic factors that might produce non-uniformity of grading among junior-high schools.

The statistical data stipulated into this record indicate a lower proportion of low-income students at Lowell than in the high school population city-wide. The data also show that 7.5% Of Lowell's students are black, while 25.9% Of the district's high school students are black; 5.2% Of Lowell's students are Spanish-American, and 1o% Of the district's high-school students are Spanish-American. The minority percentages in Lowell's student body would be even lower than they are but for the minority-admissions program instituted in 1970.

However, the district-court record reveals that Lowell has not become an exclusive province of the affluent and white. Chinese students contribute 29.8% Of Lowell's student body, while they make up only 17.9% Of the district's high-school population. Further, 3.2% Of Lowell's students are Japanese, and 3.8% Are Filipino, while the respective city-wide percentages are 1.9% And 4.5%.

There was no evidence that the Board's actions in connection with its administration of Lowell were racially motivated. ³ The admission standard is neither an intentionally discriminatory standard, cf. Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), nor a neutral standard applied in an intentionally discriminatory manner, see Yick Wo v. Hopkins, 118 U.S 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). Nor do the Board's actions in moving the school building to the far southwest corner (described as a predominantly white area) of the city and in modifying the admission policy indicate intent to insure and increase the underrepresentation of black and Spanish-American students at Lowell. These actions, of themselves, give no evidence of discrimination, and appellants have not offered any additional evidence of racially discriminatory motivation. We note that the admission-policy changes of which appellants complain (e.g., abandoning a form of neighborhood, admission quotas in favor of city-wide admission standards) were accompanied by the development of a pilot minority admissions program. In the absence of proof, appellants' conclusory allegations were insufficient to make the Board's intent a triable question that would frustrate an otherwise appropriate summary judgment.

However, if an admission standard operates in fact to exclude a disproportionate number of black and Spanish-American students from Lowell, the court has a duty to test the constitutionality of that standard. ⁴ Where a nonsuspect classification (past academic achievement) is alleged to operate to the detriment of a disadvantaged class or classes (black and Spanish-American students), neither 'strict' nor 'minimal' scrutiny provides useful guidance as a standard of review. The task is to examine the school district's assertion that the standard of past academic achievement substantially furthers the purpose of providing the best education possible for the public-school students in the district. ⁵ If the past-achievement standard does substantially further that purpose, then the district has not unconstitutionally discriminated in its Lowell admission policy.

The advantages of an 'academic' high school offering advanced courses to students who have excelled in a traditional curriculum are obvious. Lowell provides in one school a program which cannot be duplicated in ten other schools any more than special courses for students with specific educational needs can be economically taken from the other special high schools in the city and spread among all eleven schools. The student whose past performance has demonstrated ability to move at an advanced rate in an advanced program will receive a 'better' education than he or she would receive if required to work in subject matter and at a pace which does not provide as great an educational challenge. Likewise, a student with an interest in vocational training receives a 'better' education if permitted to take vocational courses than if required to continue against his wishes with the 'traditional' high-school program. The school district has determined that it is educationally 'better' to consolidate special offerings for the benefit of those who can meet the performance standards than to dispense with the effort entirely because budget considerations make it impossible to offer every program at every school.

Conditioning admission to Lowell upon the level of past academic achievement substantially furthers the district's purpose of operating an academic high school. Those students who have best mastered their junior-high-school courses are well prepared for more advanced courses at the high-school level. Of course, it does not necessarily follow that all applicants who fall below the cutoff line are educationally disqualified for Lowell's program. The cutoff is the result of space and budget limitations, not the result of a perfect determination of who can and who cannot benefit from the program.

Those students not admitted to Lowell are neither denied a quality education nor relegated to an inadequate school. Rather, they attend one of San Francisco's seven 'comprehensive' high schools. Unlike a 'tracking' system in which the challenged classifications are 'predictive' and isolate students of 'less promising' ability, the classification here is based upon past achievement impartially measured. There is slight potential for phychic injury to a student from attending a comprehensive high school with the majority of the city's high-school students. Cf. Hobson v Hansen, 269 F.Supp. 401 (D.D.C.1967), aff'd en banc sub nom. Smuck v. Hobson, 132 U.S.App.D.C. 372, 408 F.2d 175 (1969). ⁶ We conclude that the district's legitimate interest in establishing an academic high school, admission to which is based upon past achievement, outweighs any harm imagined or suffered by students whose achievement had not qualified them for admission to that school.

Our decision does not mean that we are not troubled by the underrepresentation of some racial and ethnic groups at Lowell. Uncertainty on this score, however, does not mean that the maintenance of Lowell High is itself unconstitutional or that conditioning admission on the basis of past academic achievement is unconstitutional.

Nor does the alleged underrepresentation at Lowell of students of low-income families render the admission policy unconstitutional. Low-income persons have no greater status under the equal-protection clause of the Fourteenth Amendment than members of racial minorities. See, e.g., San Antonio School District v. Rodriquez, 411 U.S. 1, 18-29, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); James v. Valtierra, 402 U.S. 137, 91 S.Ct. 1331, 28 L.Ed.2d 678 (1971...