Crawford v. Board of Education

• Decision Date: 19 December 1980
• Parties: Mary Ellen CRAWFORD, etc., et al., Plaintiffs and Respondents, v. BOARD OF EDUCATION OF the CITY OF LOS ANGELES, Defendant and Appellant. Bustop, a Corporation; Better Education for Students Today, an Unincorporated Association; Robert Loveland and Mary Keipp; Charles Dreebin, etc., et al.; and United Teachers/Los Angeles, an Unincorporated Association, Intervenors. Civ. 60000.
• Court: California Court of Appeals Court of Appeals

Page 495

170 Cal.Rptr. 495

113 Cal.App.3d 633

Mary Ellen CRAWFORD, etc., et al., Plaintiffs and Respondents, v. BOARD OF EDUCATION OF the CITY OF LOS ANGELES, Defendant and Appellant.

Bustop, a Corporation; Better Education for Students Today, an Unincorporated Association; Robert Loveland and Mary Keipp; Charles Dreebin, etc., et al.; and United Teachers/Los Angeles, an Unincorporated Association, Intervenors.

Civ. 60000.

Court of Appeal, Second District, Division 2, California.

Dec. 19, 1980.

Rehearing Denied Jan. 14, 1981.

As Modified Jan. 15, 1981.

Hearing Denied March 11, 1981.

McCutchen, Black, Verleger & Shea, G. William Shea, Peter W. James, David T. Peterson, Michael M. Johnson, and Jerry F. Halverson, Los Angeles, for defendant and appellant.

Fred Okrand, Mark D. Rosenbaum, Mary Ellen Gale, Antonio Rodriguez, Halvor T. Miller, Manning & Reynolds, Shockley, Duff & Hart-Nibbrig, Los Angeles, and Paul Hoffman, Los Angeles, of counsel, for plaintiffs and respondents.

Cliff Fridkis, Los Angeles, for intervenor Bustop.

THE COURT: ^*

The issues are whether the amendment to article I, section 7(a), of the California Constitution, adopted November 6, 1979, on pupil school assignment and pupil transportation (Proposition 1) violates the United States Constitution, and, if it does not, whether the remedial order entered by the superior court on July 7, 1980, in the Los Angeles School District desegregation cause entitled Crawford v. Board of Education contravenes article I, section 7(a) of the California Constitution.

The school board (Board) of the Los Angeles Unified School District (District) has appealed to this court from orders of the Los Angeles Superior Court entered May 19, 1980, and July 7, 1980. The May 19 order declined to rule on the constitutionality of Proposition 1, and held that in any event the amendment had no application to this cause. The July 7 order was one of a series of remedial orders entered pursuant to a judgment granting a writ of mandate, a judgment originally issued in 1970 by the Los Angeles Superior Court. In 1976 the California Supreme Court modified and affirmed the judgment granting the writ (Crawford v. Board of Education, 17 Cal.3d 280, 130 Cal.Rptr. 724, 551 P.2d 28), and remanded the cause to the trial court to require the Board to prepare a "reasonably feasible plan" to alleviate the harmful consequences of racial segregation in the schools within the District. On remand, the Board in response to the writ submitted to the superior court a plan which focused on pairing and clustering of selected schools, creation of magnet schools, and a plan of voluntary "busing" for students with parental consent. The major thrust of the Board's plan was to encourage voluntary desegregation.

The trial judge (not the judge who originally tried the cause) made it clear early in the proceedings that nothing short of a plan involving large-scale mandatory reassignment of pupils on a racial and ethnic basis would be satisfactory. At the commencement of the school year in the fall of 1978 he brought about the implementation of such a plan. After a year's experience with the plan all parties were dissatisfied with the plan, and were agreed that it had failed to achieve its objective.

On November 6, 1979, the voters of the state approved Proposition 1, an initiative measure which amended article I, section 7(a), of the California Constitution. ¹ The effect of the amendment was to prohibit state courts, in desegregation cases, from ordering school boards to mandatorily reassign and transport pupils on the basis of race, except to remedy a violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution under circumstances which would authorize a federal court under federal decisional law to issue such an order. The amendment further provided that any previously issued court order which contained a mandatory reassignment provision could be modified by proper application to a court having jurisdiction over the matter, unless modification was precluded by the United States Constitution.

The Board applied to the superior court to modify the plan then in effect by eliminating all mandatory reassignment and "busing" of pupils. On May 19, 1980, the court denied the application on the ground that the original trial court had found the Board guilty of de jure segregation in violation of the Fourteenth Amendment to the United States Constitution. On July 7, 1980, the superior court issued a new order, which, though somewhat different from its 1978 order, required substantial mandatory reassignment and transportation of pupils in the District. We have expedited the appeals from these two orders in accordance with the recommendation of the California Supreme Court.

We consider first the appeal from the May 19 order, for the reason that if the newly enacted amendment to article I, section 7(a) of the California Constitution precluded the trial court from ordering mandatory reassignment of pupils, the appeal on the merits of the July 7, order would become moot. Plaintiffs contend that the original findings of the trial court in this cause found the Board guilty of de jure segregation in violation of the Fourteenth Amendment to the United States Constitution, thereby making inapplicable to this cause the limitation imposed by the amendment to the California Constitution, and that in any event the amendment to the California Constitution brought about by Proposition 1 is itself unconstitutional and violative of the United States Constitution.

I

Both California and federal law pertaining to segregation in the public schools have a common origin in the United States Supreme Court decision of Brown v. Board of Education (1954) 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873. But thereafter California and federal law followed parallel but somewhat different courses. As we will develop, infra, the clear impact of Proposition 1 is to bring one aspect of California law into conformity with federal law.

The United States Supreme Court decisions, starting with Brown v. Board of Education, supra, have examined the problem of segregation in the public schools of the various states in the light of the equal protection clause of the United States Constitution. The essential holding of Brown was that state constitutional and statutory provisions requiring segregation of white and black children in public schools on the basis of race deny black children the equal protection of the laws guaranteed by the Fourteenth Amendment and are therefore void. In rejecting the long-standing separate-but-equal rule of Plessy v. Ferguson (1896) 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256, the court in Brown held that separate educational facilities are inherently unequal for the reason that the mere fact of legalized segregation generates a feeling of inferiority in the black students. (347 U.S. p. 494, 74 S.Ct. p. 691.) In essence, psychological trauma was at the heart of the Brown decision. Thurgood Marshall, the then counsel of the National Association for the Advancement of Colored People, in arguing before the Supreme Court in Brown urged only "that the state-imposed racial segregation be taken off If school officials were enjoined from enforcing segregation, then I think whatever district lines are drawn on a natural basis, without regard to race or color, then I think that nobody would have any complaint." (Argument: The Oral Argument Before the Supreme Court in Brown v. Board of Education of Topeka, 1951-1955, pp. 47-49 (L. Friedman ed. 1969).)

The objective of the Brown decision, and of the cases later implementing it, was to dismantle officially-imposed dual school systems. Once a dual system has been dismantled and a unitary system established, a school board is under no affirmative federal duty to adjust attendance to comport with shifting and changing neighborhood racial patterns, so long as the changes are attributable to private conduct. (Pasadena City Bd. of Education v. Spangler (1976) 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599.) The scope of federal constitutional law in this field was clarified over the ensuing years in a series of decisions rendered by the United States Supreme Court at a time subsequent to the findings and conclusions of the original trial judge herein in 1970.

Clarification began with Swann v. Charlotte-Mecklenburg Bd. of Educ. (1971) 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554, a southern school desegregation case concerning remedies available to a federal court to desegregate a legally segregated school system. Two of its points are relevant here. No particular degree of racial balance or mix is required to desegregate a school. (p. 24, 91 S.Ct. p. 1280.) Absent a constitutional violation a federal court has no authority to assign students to schools on the basis of race. (p. 28, 91 S.Ct. p. 1282.)

The next development came in Keyes v. School District No. 1 (1973) 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548, a case of deliberate, intentional racial segregation in a western city. The court declared that to establish unlawful segregation in violation of the Fourteenth Amendment "plaintiffs must prove not only that segregated schooling exists but also that it was brought about or maintained by intentional state action (consisting of) an unconstitutional policy of deliberate racial segregation " (p. 198, 93 S.Ct. p. 2692.) De jure segregation, said the court, comprehends purpose or intent to segregate. (p. 208, 93 S.Ct. p. 2697; italics in original.)

Thereafter followed the decision in Washington v. Davis (1976) 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597, a case involving claimed racial discrimination in police officer tests. In discussing the Fourteenth Amendment's prohibition against official discrimination on the basis of race, the court declared that the discrimination must be purposeful. In respect to school desegregation it said:

"The...