Johnson v. San Francisco Unified School District, C-70 1331.

Citation339 F. Supp. 1315
Decision Date09 July 1971
Docket NumberNo. C-70 1331.,C-70 1331.
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
PartiesDavid JOHNSON et al., Plaintiffs, v. SAN FRANCISCO UNIFIED SCHOOL DISTRICT et al., Defendants.

COPYRIGHT MATERIAL OMITTED

Arthur Brunwasser, James Herndon, Garry, Dreyfus, McTernan & Brotsky, San Francisco, Cal., for plaintiffs.

Thomas M. O'Connor, City Atty., George E. Krueger, Deputy City Atty., Irving G. Breyer, Legal Advisor, San Francisco Unified School Dist., San Francisco, Cal., for defendants.

Willis Hannawalt, Vivian Hannawalt, San Francisco, Cal., for intervenors.

MEMORANDUM OF DECISION, JUDGMENT AND DECREE

WEIGEL, District Judge.

Governing Legal Principles

More than seventeen years ago, a unanimous decision of the United States Supreme Court made it clear that racial discrimination in public education violates the Constitution of the United States. Today it is established beyond all question that any law, ordinance or regulation of any governmental agency (whether federal, state, county or city) requiring or furthering such discrimination violates the Constitution of the United States. The cases so holding are legion. They have been handed down, not only by the Supreme Court of the United States, but, as well, by other courts located throughout the nation. A representative handful is set out in the margin.1

Therefore, those citizens or groups — the record indicates that there are some — who would promote or require racial discrimination in public education cannot have their way through court action. They must either bring about an amendment to the Constitution of the United States or undertake to violate it.

The law is settled that school authorities violate the constitutional rights of children by establishing school attendance boundary lines knowing that the result is to continue or increase substantial racial imbalance.2 The law is settled that school authorities violate the Constitution by providing for the construction of new schools or enlargement of existing ones in a manner which continues or increases substantial racial imbalance.3 The law is settled that school authorities violate the Constitution by assigning black teachers and teachers of limited experience to "black" schools while assigning few, if any, such teachers to "white" schools.4

The evidence in this case makes it unquestionably clear that, as to the San Francisco elementary schools, the San Francisco school authorities have done all of these things persistently and over a period of years.5

It has been urged that the decisions forbid such practices only in those states (nearly all in the South) which, at an earlier time, had dual school systems. These contentions may possibly have some peripheral historical and geographical validity; they have no validity whatever in law or equity. It is shocking, indeed, it is nonsensical, to assume that such practices are forbidden to school authorities in Florida or North Carolina, for example, but are permitted to school authorities in California. Neither the United States Supreme Court nor any other court has drawn a Mason-Dixon Line for constitutional enforcement. None has set up any such double standard of legality in constitutional interpretation.

Misconceptions of this kind may underlie contentions that the action of the San Francisco school authorities has not been de jure in character. It is now well settled law that any rule or regulation by school authorities which creates or continues or heightens racial segregation of school children is de jure. In legal terms, "de facto" is often used as an opposite of de jure. It is not difficult to illustrate the difference between the two. If a school board has drawn attendance lines so that there is a reasonable racial balance among the children attending a given school and if, thereafter, solely due to movement of the neighborhood population, the school attendance becomes racially imbalanced, the segregation thus arising is then de facto. On the other hand, if the school board, as in this case, has drawn school attendance lines, year after year, knowing that the lines maintain or heighten racial imbalance, the resulting segregation is de jure.6

No evidence whatever has been brought before the Court to show that, throughout the years since 1954 (when the United States Supreme Court held that racial segregation of children was an unconstitutional denial of equal educational opportunity), the San Francisco school authorities had ever changed any school attendance line for the purpose of reducing or eliminating racial imbalance.7

There is perhaps one more thing to be said regarding the term de jure. It need not be one stigmatizing school authorities. It does not imply criminal or evil intent. In the context of segregation, it 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.8

Some Practical Considerations

It has been urged upon the Court that desegregation of the San Francisco elementary schools should be delayed to a time later than the commencement, on September 8, 1971, of the next full term of the San Francisco elementary schools. Even if delay were legally permissible, it would be undesirable. And it is not legally permissible. Where, as here, the constitutional rights of children to equality of educational opportunity are being denied, the law requires the promptest possible correction, overriding considerations of expediency such as cost and inconvenience. Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed. 2d 19 (1969); Carter v. West Feliciana Parish School Board, 396 U.S. 226, 90 S.Ct. 467, 24 L.Ed.2d 382 (1969); Keyes v. School District No. 1, 396 U.S. 1215, 90 S.Ct. 12, 24 L.Ed.2d 37 (Brennan, J.) (vacating stay). At the open-court hearings held concerning the respective plans submitted by plaintiffs and defendants, relevant testimony was given by experts employed by defendants. They declared, without qualification or contradiction by anyone, that it is feasible to put either plan into operation at the start of the school term this fall. Over-all, the delay in integrating the San Francisco elementary schools has gone on far too long. It has gone on throughout the seventeen years following the Supreme Court's proscription of segregated schools, notwithstanding the fact that the San Francisco school authorities had for many years known of the segregation, such knowledge having come, not only from citizen groups, but from one or more studies ordered and paid for by the San Francisco Unified School District itself.9

It has been repeatedly urged upon the Court that, since the racial population of San Francisco (and of its elementary school children) is more diverse than in other communities, racial segregation in the elementary schools ought to be permitted. The law allows no such latitude. And the facts make it ill-advised.

While plaintiffs complain only of segregation of black students, the plan they have filed, as well as that filed by defendants, provides for a balancing of all races. The fact that the Court did not require more than desegregation of black students does not make the plans invalid. And there are solid reasons supporting the parties in their plans for desegregation of all races.

The multiplicity of racial backgrounds makes effective desegregation more, not less, important. All who testified on the subject were unanimous in pointing out that the evils of racism and ethnic intolerance are not limited to blacks and whites. Those who oppose desegregation, however well intentioned, would deprive children of the most meaningful opportunities to know members of different races. Opposition to desegregation fosters false concepts of racial superiority and of racial inferiority. And opposition to desegregation in the elementary schools is particularly ill-advised. It works to prevent the kind of exchange in formative years which can best inoculate against racial hatred. Racial hatred is an adult rather than a childhood disease.

The law and the facts, then, in this case are at one in calling for desegregation of the San Francisco elementary schools.

The evidence demonstrates that there simply cannot be desegregation without some busing of some students because there are districts in the city in which there are great preponderances of members of one particular race. The evidence also dispels false rumors and other fallacies regarding busing. For example, the National Safety Council statistics, put in evidence, demonstrate that busing is by far the safest means of getting children to and from school. And whatever the real or asserted concerns of parents, the evidence is without dispute in showing that children enjoy busing.

The evidence further shows that the problem of getting parent and child together in emergency situations is not aggravated by busing. One reason is that many school authorities provide for one or more vehicles serving each school zone to be equipped with radios and to operate on a standby or cruising basis for such emergencies. The San Francisco school authorities, as stated in testimony on their behalf, will make such arrangements.

It should be noted, too, that the Supreme Court itself, speaking through Chief Justice Burger, recently pointed out (in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 29, 91 S.Ct. 1267, 1282, 28 L.Ed.2d 554 (1971)):

"* * * Bus transportation has been an integral part of the public education system for years, and was perhaps the single most important factor in the transition from the one-room schoolhouse to the consolidated school. Eighteen million of the nation's public school children, approximately 39% were transported to their schools by bus in 1969-1970 in all parts
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