Ho by Ho v. San Francisco Unified School Dist.

• Decision Date: 04 June 1998
• Docket Number: Nos. 97-15926,97-70378,s. 97-15926
• Citation: 147 F.3d 854
• Parties: 127 Ed. Law Rep. 614, 98 Cal. Daily Op. Serv. 4277, 98 Daily Journal D.A.R. 6066 Brian HO, by his parent and next friend, Carl HO; Patrick Wong, by his parent and next friend, Charlene Wong; Hilary Chen, by her parent and next friend, Jane Chen, Plaintiffs-Appellants, v. SAN FRANCISCO UNIFIED SCHOOL DISTRICT; San Francisco Board of Education; Waldemar Rojas, Superintendent of the San Francisco Unified School District; Board of Education of the State of California; California Department of Education; William D. Dawson; San Francisco National Association for the Advancement of Colored People, Defendants-Appellees. Brian HO, by his parent and next friend, Carl HO, Petitioner, v. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, Respondent, San Francisco Unified School District, Real Party In Interest.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 854

147 F.3d 854

127 Ed. Law Rep. 614, 98 Cal. Daily Op. Serv. 4277,

98 Daily Journal D.A.R. 6066

Brian HO, by his parent and next friend, Carl HO; Patrick

Wong, by his parent and next friend, Charlene

Wong; Hilary Chen, by her parent and next friend, Jane Chen, Plaintiffs-Appellants, v. SAN FRANCISCO UNIFIED SCHOOL DISTRICT; San Francisco Board

of Education; Waldemar Rojas, Superintendent of the San

Francisco Unified School District; Board of Education of

the State of California; California Department of

Education; William D. Dawson; San Francisco National

Association for the Advancement of Colored People,

Defendants-Appellees.

Brian HO, by his parent and next friend, Carl HO, Petitioner, v. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF

CALIFORNIA, Respondent,

San Francisco Unified School District, Real Party In Interest.

Nos. 97-15926, 97-70378.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 15, 1998.

Decided June 4, 1998.

Daniel C. Girard, Girard & Greene, San Francisco, California, for appellants.

Aubrey V. McCutcheon, Jr., Ypsilanti, Michigan, for appellee San Francisco Unified School District.

John C. Yoo, Berkeley, California, for appellee Board of Education of the State of California.

Joseph Remcho, Remcho, Johansen & Purcell, San Francisco, California, for appellee Superintendent of the Board of Education.

Haywood S. Gilliam, Jr., McCutchen, Doyle, Brown & Enerson, San Francisco, California, for appellee San Francisco Chapter of the NAACP.

Appeals from the United States District Court For the Northern District of California; William H. Orrick, Jr., District Judge, Presiding. D.C. No. CV-94-02418-WHO.

Before: NOONAN and TROTT, Circuit Judges, and WALLACH, ^* Judge.

NOONAN, Circuit Judge:

By their parents and next friends, Brian Ho, aged 5, Patrick Wong, aged 14, and Hilary Chen, aged 8 (collectively Ho), brought this action in 1994 against the San Francisco Unified School District (the School District) and the other local and state defendants. The suit sought declaratory relief and an injunction forbidding the defendants from operating the public schools of San Francisco under a system of racial classification and quotas. Ho alleged that the defendants were violating the Fourteenth Amendment by adhering to paragraph 13 of a consent decree of fifty-five paragraphs approved by the district court in May 1983.

Paragraph 13, as modified by the court, reads in relevant part as follows:

"No school shall have fewer than four racial/ethnic groups represented in its student body. (b) No racial/ethnic group shall constitute more than 45% of the student enrollment at any regular school, nor more than 40% at any alternative school. In the event the percentage of any racial/ethnic group at any alternative school exceeds 40% after September 1983, the S.F.U.S.D. shall apply the provisions of subparagraph (c) to the entering class at such school. (c) Beginning with the 1983-84 school year, the S.F.U.S.D. shall monitor the entering classes of all regular schools in which a single racial/ethnic group comprises more than 45% of the student enrollment, to assure that students in that racial/ethnic group will not comprise more than 40% of the entering class at any such school." (emphasis in original).

The defendants moved to dismiss on the grounds of res judicata and collateral estoppel: all the issues, they maintained, had been decided in 1983. Observing that the suit relied on events that had occurred after 1983, the district court denied this motion.

On January 19, 1995, the court added as a defendant the San Francisco National Association for the Advancement of Colored People (SFNAACP), which had brought the suit that had led to the consent decree.

On March 8, 1996 the court certified the plaintiffs as representatives of a class consisting of "all children of Chinese descent of school age who are current residents of San Francisco and who are eligible to attend the public schools of the San Francisco Unified School District."

The case proceeded by answers to interrogatories and affidavits. Waldemar Rojas, general superintendent of the School District, filed an affidavit in which he swore as follows: "I have not assigned or authorized the assignment of students to schools in San Francisco based on their race or ethnicity. However, race or ethnicity is considered as a factor in determining whether the student population of a SFUSD school is within the guidelines set forth in Paragraph 13 of the Consent Decree and sometimes a student is not permitted to enroll if the school is overcrowded or outside the guideline. I have not been a part of any 'scheme of racial classification' I have not classified any student or parent of a SFUSD student as being of a particular race or ethnicity and I have not authorized any SFUSD staff member to classify a student as to the student's race or ethnicity. Parents or students may classify themselves for identification purposes."

Superintendent Rojas went on to declare: "All vestiges of past discriminatory or segregatory actions in the SFUSD have not been eliminated but I am committed to working toward such elimination in good faith.... Many vestiges of prior alleged segregatory acts remain in the SFUSD, but I believe our focused effort to implement our philosophical tenets and our specifically designed educational program as a part of the desegregation remedy will result in the district qualifying for a declaration of unitary status within a few years.... The level of confidence in public education by African-American, Latino, and persons of poverty remains minimal." (emphasis in original).

Superintendent Rojas's declaration then continued for a dozen pages principally devoted to the on-going program for the "reconstitution" of schools, that is, "a comprehensive ecological re-creation of a school community which places the students and parents of every race and ethnicity as institutional stakeholders of an educational facility and the reculturing of the institution through a new hiring process of all adult employees, including the custodians, teachers, paraprofessionals, offices aides, and the principal." (R. Doc. 102 at p 14).

Margaret G. Wells, Program Director at the Educational Placement Center of the School District, also provided a declaration under oath. She declared: "At some point, because of Paragraph 13 of the Consent Decree, it may become necessary to determine whether the race of the student is the same race as the student group which is the highest percentage in the entire school. We do not treat Paragraph 13 as a quota system. Race becomes a consideration only when placement of the student in the school will exceed 45% in the regular school or 40% in the alternative school.... If it is determined that the race of the student in a particular school is 45% or more, the parent/guardian is told about the desegregation court order and another school is sought."

The Pre-Registration/Optional Enrollment Request information sheet provided to parents by the School District was attached to the Wells affidavit. The information sheet explains that Pre-Registration and Optional Enrollment Request forms must be submitted for all children who are new to the School District and for all children wishing to transfer out of their assigned school. The information sheet contains a section bearing the heading "RACIAL/ETHNIC DESIGNATION" followed by this statement: "The SFUSD accepts federal and private funds to provide better educational opportunities for students and to comply with the court-ordered Consent Decree. This requires that parent/guardians identify the racial/ethnic composition of students. Once the identification is made, the racial/ethnic designation will become a permanent entry on the student's school records. Parents/guardian may change the ethnicity only once and must include rationale and documentation to support the change.... The SFUSD reserves the right to deny such a change if the request cannot be substantiated." Another section is entitled "FALSIFICATION OF INFORMATION." It provides: "Under both federal and state law, any falsification of information provided to the District will constitute perjury, and will result in possible further legal action and cancellation of any transaction that involved the enrollment of a child."

The information sheet also reveals that even where attendance is not limited by a racial cap mandated by the consent decree, "Hispanic" and "African American" students are given priority over other, similarly situated, students in granting optional enrollment requests. The record indicates that the School District processes thousands of Pre-Registration and Optional Enrollment requests annually.

The accompanying form, Pre-Registration and Optional Enrollment Request, contains a section entitled "Racial/Ethnic Identification: CHECK ONLY ONE." The thirteen boxes of which only one may be checked are as follows: "African American; American Indian; Chinese; Filipino; Hispanic/Latino; Japanese; Korean; White; Arabic; Samoan; Southeast Asia (Cambodia, Laos, Thailand, Vietnam, etc.); Middle Easterner (Turkey, Iran, etc.); Other Non-White."

A third affidavit furnished by the defendants came from Steve Phillips, president of the School District's Board of Education. Phillips stated: "I am aware that all vestiges of the segregatory acts alleged by the San Francisco NAACP have not yet been eliminated 'root and branch' or 'to the greatest extent possible.' ... I know that there are presently many schools in which the goals set forth in paragraph 13 and paragraph 39-41 of the Consent Decree have not yet been achieved.... We have not yet reached the level of achievement that would permit us to validly claim that the victims of prior segregatory acts are convinced that we have fully complied with the terms of the Consent Decree and that all vestiges of segregation have been removed.... There is a...