San Francisco Unified School Dist. v. Johnson

Decision Date26 January 1971
Docket NumberS.F. 22771
CourtCalifornia Supreme Court
Parties, 479 P.2d 669 SAN FRANCISCO UNIFIED SCHOOL DISTRICT et al., Petitioners, v. Donald JOHNSON, as Complex Planning Officer, etc., Respondent.

Irving G. Breyer, Jerome B. Falk, Jr., and William F. McCabe, San Francisco, for petitioners.

Newman, Robinson & Dunn, Alfred W. Newman, Vallejo, Kronick, Moskowitz, Teidemann & Girard, Adolph Moskowitz, Sacramento, Paul N. Halvonik, Charles C. Marson and Johnson & Stanton, San Francisco, as amici curae on behalf of petitioners.

Richard Harrington, San Francisco, for respondent.

Quentin L. Kopp, San Francisco, Vivian Hannawalt, San Rafael, Willis D. Hannawalt and Ngai Ho Hong, San Francisco, as amici curiae on behalf of respondent.

TOBRINER, Justice.

In this action for mandamus we are called upon to determine the interpretation and constitutionality of Education Code section 1009.5, which provides that 'no governing board of a school district shall require any student or pupil to be transported for any purpose or for any reason without the written permission of the parent or guardian.' We hold that section 1009.5 does no more than prohibit a school district from compelling students, without parental consent, to use means of transportation furnished by the district; so construed, section 1009.5 violates no constitutional mandate. We do not believe the section should be interpreted to prohibit the board from assigning a student to a particular school without parental consent, even if such assignment would involve busing.

We reach these conclusions by application of the principle that a statute which is reasonably susceptible of two constructions should be interpreted so as to render it constitutional. We shall point out that if section 1009.5 were read to limit the school board's authority over pupil assignment it would impinge upon constitutional principles.

More specifically, as we shall later explain in detail, a construction of section 1009.5, prohibiting nonconsensual pupil assignment, first, would involve the parents of school children in that assignment process, a state function, and would fail to foreclose conduct of parents designed to foster racial segregation. This interpretation would render the statute unconstitutional on its face in that, so interpreted, section 1009.5 would create a parental right to discriminate, interposing such a debilitory power upon the board in its effort to achieve integration. Second, the United States Supreme Court has held that school districts which maintain 'de jure' segregated systems must eliminate such imbalance and establish unitary systems; yet the realization of that objective may very well require the reassignment of students without parental consent. Third, school boards, administering 'de facto' segregated systems may bear an equivalent constitutional duty; in any event, to the extent that the statute involves the state in the preservation of such segregation, the legislation protects the very condition which the Constitution as interpreted by the United States Supreme Court, has condemned.

Nothing we say here should be considered to require the use of district transportation or busing for purposes of integration or for any other purpose. We are concerned only with the interpretation of a statute. If read in one way, that statute could be construed to Prohibit nonconsensual busing in order to achieve racial integration; we point out that the section not only does not compel such a construction but also that any such interpretation would encounter constitutional difficulties.

In rejecting the construction that the statute strips a school board of the right to assign pupils to schools not within walking distance of their homes without parental consent, we do not assert that such assignment is in all instances constitutionally compelled. In some situations, however, it is the only practical and efficient method of achieving school integration. An enactment which by flat legislative fiat, prohibits any and all such assignments, exorcising a method that in many circumstances is the sole and exclusive means of eliminating racial segregation in the schools, necessarily legislates the preservation of racial imbalance. It therefore violates constitutional imperatives.

As of September 1969, San Francisco's elementary schools displayed serious racial imbalance. 1 In 1969, 28.7 percent of the children attending elementary school in San Francisco were black. Over 80 percent of the black children in grades one through six attended 27 of the 94 elementary schools. Over 70 percent attended schools in which the black children comprised more than half of the pupils. Ten schools were over 90 percent black; 27.6 percent of the black children attended those 10 schools. Projected population studies indicated that, without remedial action, racial imbalance would increase. 2

In 1966 the San Francisco School District commissioned the Stanford Research Institute to recommend methods of desegregating city schools. 3 Based on the report of the Institute, the board in 1969 resolved to establish two elementary school 'complexes,' the Richmond complex and the Park South complex. 4 Each complex consists of a grouping of elementary schools, with some schools assigned to house kindergarten and grades one through three, and others to house grades four through six. A student living within the attendance zone for the complex is assigned to one of the schools in the complex, but in some instances this is not the school which the student previously attended, and not within reasonable walking distance of his residence. The district provides bus transportation, on a voluntary basis, for students living beyond reasonable walking distance of their school. The Richmond complex commenced operation in September of 1970; the Park South complex was tentatively scheduled for January 1971.

Education Code section 1009.5 received the Governor's assent on September 14, 1970 and became effective as of November 23. The proposed Park South complex will not compel any student to ride on a school bus, but it does involve assignment of students to schools under circumstances such that the school bus is the most practical means of transportation. The plan, moreover, does not provide for solicitation of parental consent to pupil assignments; to require such solicitation, and to reassign pupils whose parents withheld such consent, would greatly increase the expense of administration and delay commencement of the complex. If a substantial number of parents of either the white or black races withheld consent, pupil reassignment to conform to parental wishes would defeat the educational objectives of the complex. The legality of the Park South complex thus turns on whether section 1009.5 applies to limit pupil assignments without parental consent and, if so interpreted, is constitutional.

In connection with the Park South complex the board found it necessary to obtain a computer study of the present and proposed school assignments for pupils in the complex. Respondent Donald Johnson, the Complex Planning Officer, was requested to execute a requisition for this study; he refused to do so on the ground that the Park South complex did not contemplate parental consent to pupil assignments and thus was of doubtful legality under section 1009.5. The board thereupon filed the present action in mandamus to compel respondent to execute the requisition for the computer study.

1. This court has issued an alternative writ of mandamus to review the validity and interpretation of section 1009.5.

This court entertains original jurisdiction in mandamus under California Constitution article VI, section 10, and Rules of Court, rule 56(a). We exercise such jurisdiction, however, only in cases in which 'the issues presented are of great public importance and must be resolved promptly.' (County of Sacramento v. Hickman (1967) 66 Cal.2d 841, 845, 59 Cal.Rptr. 609, 611, 428 P.2d 593, 595.) Exemplars of such instances are: Perry v. Jordan (1949) 34 Cal.2d 87, 90--91, 207 P.2d 47 (qualification of initiative for ballot); Farley v. Healey (1967) 67 Cal.2d 325, 326--327, 62 Cal.Rptr. 26, 431 P.2d 650 (same); County of Sacramento v. Hickman, Supra (validity of assessment procedures); State Board of Equalization v. Watson (1968) 68 Cal.2d 307, 310--311, 66 Cal.Rptr. 377, 437 P.2d 761 (same); and Westbrook v. Mihaly (1970) 2 Cal.3d 765, 87 Cal.Rptr. 839, 471 P.2d 487 (constitutionality of requiring two-thirds majority in bond elections).

Under these precedents, the present case plainly called for the exercise of the original jurisdiction of the court. The issues here presented respecting the interpretation and constitutionality of section 1009.5 are of great public concern and importance; their prompt resolution is essential to orderly planning and pupil assignment not only in San Francisco but throughout the state. The United States Supreme Court has directed that segregation in public schools must terminate 'at once.' (Alexander v. Holmes Board of Education (1969) 396 U.S. 19, 20, 90 S.Ct. 29, 24 L.Ed.2d 19.) Since section 1009.5, under one interpretation, may delay desegregation, prompt judicial action is essential to comply with this direction. We therefore decided to issue the alternative writ of mandamus requested by petitioners; by so doing 'we have necessarily determined that there is no adequate remedy in the ordinary course of law and that (this) case is a proper one for the exercise of our original jurisdiction.' (Westbrook v. Mihaly (1970) 2 Cal.3d 765, 773, 87 Cal.Rptr. 839, 844, 471 P.2d 487, 492.)

2. Section 1009.5 is reasonably susceptible of two interpretations.

The ambiguity of section 1009.5 inheres in the phrase 'require any student or pupil to be transported.' 5 (Emphasis added.) One may 'require' a student to be transported by punishing a refusal or by...

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