Spangler v. Pasadena City Board of Education, Civ. A. No. 68-1438-R.

• Decision Date: 03 May 1974
• Docket Number: Civ. A. No. 68-1438-R.
• Court: U.S. District Court — Central District of California
• Parties: Nancy Anne SPANGLER et al., Plaintiffs, United States of America et al., Plaintiff-Intervenor, v. PASADENA CITY BOARD OF EDUCATION et al., Defendants.

375 F. Supp. 1304

Nancy Anne SPANGLER et al., Plaintiffs, United States of America et al., Plaintiff-Intervenor, v. PASADENA CITY BOARD OF EDUCATION et al., Defendants.

Civ. A. No. 68-1438-R.

United States District Court, C. D. California.

May 3, 1974.

A. L. Wirin, Fred Okrand, John D. O'Loughlin, Jill Jakes, ACLU Foundation of Southern Cal., Los Angeles, Cal., for plaintiff.

William D. Keller, U. S. Atty., Frederick M. Brosio, Jr., Asst. U. S. Atty., James Stotter II, Chief, Civil Division, Brian K. Landsberg, Samuel J. Flanagan, Los Angeles, Cal., for plaintiff-intervenor.

Paul, Hastings, Janofsky & Walker, Lee G. Paul, Robert G. Lane, Peter D. Collisson, Los Angeles, Cal., for defendants.

REAL, District Judge.

Defendant, Pasadena City Board of Education (hereafter Board)¹ now moves the court for:

1. Relief from this Court's order of January 23, 1970, for the desegregation of Pasadena schools and the Court's order of March 10, 1970, approving the plan of desegregation submitted by defendants (hereafter Pasadena Plan);

2. Dissolution of the injunction that there be no school with a majority of any minority, under which the Board is presently operating;

3. Termination of the Court's continuing jurisdiction;

4. Alternatively, for modification of the Pasadena Plan approved March 10, 1970.

I. MODIFICATION OF THE PASADENA PLAN AND RELIEF FROM THE ORDER OF JANUARY 23, 1970.

In January, 1970, this Court found racial imbalance or segregation of student bodies and faculties in the Pasadena Unified School District resulting from the Board's actions and inactions in execution of an announced dedication to the neighborhood school concept of education and its opposition to forced cross-town busing. 311 F.Supp. 501 (C.D.Cal.1970).

While no appeal was taken from that ruling, it was, to say the very least, not received with unanimous approbation. Indeed, according to the Board's position in the proceeding at bar, this Court's ruling in 1970 is the sole and proximate cause of "white flight" from Pasadena schools and is, in addition, a barrier to achieving the excellence of educational opportunity which the Board now proposes to accomplish by means of its requested substituted plan, known as The Integrated Zone/Educational Alternatives Plan: A Proposed Modification to the "Pasadena Plan" (hereafter Alternative Plan).²

The posture of the Board in 1970 notwithstanding, opposition to the Pasadena Plan came early. The plan had not yet been approved when on March 2, 1970, a Motion for Leave to Intervene to oppose and appeal the judgment of this Court was filed, led by Mr. Bradford C. Houser. This motion was heard and denied by this Court on March 4, 1970. Appeal was taken of this ruling to the Court of Appeals for the Ninth Circuit, which affirmed the ruling of this Court. Spangler v. Pasadena City Board of Education, 9 Cir., 427 F.2d 1352, cert. denied 402 U.S. 943, 91 S.Ct. 1607, 29 L.Ed.2d 111.

Only temporarily rebuffed, those who were determined that the Pasadena Plan would not succeed carried on their crusade. In April of 1970³ a recall campaign against the three members of the Board who had voted against appeal of this Court's judgment⁴ was commenced. With the pledge to "STOP FORCED BUSING", Frank C. Crowhurst, Richard W. Millar, Jr., and Henry Marcheschi⁵ unsuccessfully attempted to unseat Mrs. La Motte, Mr. Lowe and Dr. Engholm in the recall election of October 13, 1970.

Implementation of the Pasadena Plan was accomplished with the commencement of the 1970-1971 academic year in September of 1970. However, compliance was literal for only the first academic year; for, starting with the 1971-72 academic year, black student enrollment at the Loma Alta School exceeded 50 per cent of the school's total enrollment. By October of the 1972-73 academic year, four schools (Edison, Franklin, Loma Alta and Sierra Mesa) had black student enrollments of more than 50 per cent of the total student body. In the 1973-74 academic year, Eliot Junior High was added to the list of nonconformance; so, at the time of hearing of this matter in March of 1974, five Pasadena schools were and remain in violation of the no majority of any minority injunction of this Court's January, 1970, ruling.

The Board through the testimony of Dr. Robert Dillworth informs the Court that white enrollment relative to total enrollment in Pasadena schools has been precipitously in decline since 1970 due entirely to this Court's desegregation order. The Court rejects this conclusion relative to causation since Dr. Dillworth, admittedly, made no inquiry of anyone as to the reasons for: (1) white or black students moving from Pasadena or (2) white or black student withdrawal from the Pasadena Unified School District. He makes a statistical "guess" as to the cause of "white flight" on the basis that, statistically, it is unnecessary to ask the motivations behind the actions of people. When faced with a direct question, however, he finally admitted to the Court that he could not say "why" students, white or black, left the Pasadena Unified School District. It is of further significance that Pasadena's experience is not unique; for the trends evidenced in Pasadena closely approximate the state-wide trends in California schools, both segregated and desegregated, since 1966.

Achievement of the desegregation proposed by the Pasadena Plan provided for division of the traditional elementary school⁶ into primary (K-3) and upper grade (4-6) schools for two reasons:

1. ". . . Students will walk to a nearby school for part of their elementary schooling and be transported with students in their neighborhoods to another school to provide ethnic balance.⁷

2. ". . . reorganization of elementary schools into primary schools (K-3) and upper schools (4-6) will provide specialization which is important to guarantee improvement in basic skills."⁸

The Alternative Plan would return to the K-6 organization of elementary education in order to "provide a sufficient number of school sites within each zone from which parents can choose the type of education most appropriate for each of their children." Howsoever denominated, the Alternative Plan is a "freedom of choice" plan that must overcome, if implemented, a large number⁹ of predictably racially imbalanced schools.

The freedom of choice offered by the Alternative Plan is not new either to the law or to Pasadena. The Supreme Court in Green v. County School Board of New Kent County, Virginia (1968) 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 warns us:

". . . in desegregating a dual system a plan utilizing `freedom of choice' is not an end in itself. As Judge Sobeloff has put it,

`"Freedom of choice" is not a sacred talisman; it is only a means to a constitutionally required end—the abolition of the system of segregation and its effects. If the means prove effective, it is acceptable, but if it fails to undo segregation, other means must be used to achieve this end. The school officials have a continuing duty to take whatever action may be necessary to create a "unitary, nonracial system."'" Id. at 440.

The facts of Green, supra, may not exactly parallel what this Court found in Pasadena in 1970 or what evidently exists in Pasadena in 1974; but the message of Green, supra, is clear. Before any Court can stamp its imprimatur to a proposed "freedom of choice" plan of desegregation—or of continuing desegregation—it must be satisfied that freedom of choice is a viable alternative to a plan which can guarantee that no school in a once-segregated¹⁰ school district shall be permitted to have an enrollment with a majority of any minority.¹¹

Pasadena has previously failed to desegregate its schools by freedom of choice plans (Spangler, supra, 311 F. Supp. at 510); and efforts by other California school districts¹² laboring under freedom of choice plans have been less than spectacularly successful in achieving any meaningful desegregation of their respective schools.

What the Alternative Plan and its advocates —four of the present five Board members ¹³—offer is the hope that "establishment of unique educational alternatives at each K-6 school site" and "salesmanship" will convince enough "white parents" whose children have left the Pasadena Unified School District to return and choose the same "educational alternatives" that black parents do in order to accomplish an integrated school system. Hope may spring eternal, but realism exposes the folly of the belief that one who left a school district because his children were forced to attend schools with Negro children would now voluntarily choose that alternative.¹⁴

There is yet another flaw in the Alternative Plan with its "mini-school" sales pitch. Mini-schools and the "unique educational alternatives" which they offer can be implemented under the Pasadena Plan. This Court does not intend to intimate that the quest for the best possible education to be made available to all the school children of Pasadena is not a laudable motive. It is the mandate of Brown I, supra, and Brown II, supra, and all the cases decided by the various courts of this land. But, the mandate is equally clear that school boards must do all they can to constitutionally accommodate the rights of minorities wherever they are found to conflict with the desires of the majority to do otherwise. Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969); Davis v. Board of School Commissioners, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971); Wright v. City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1971); Monroe v. Board of Commissioners, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 33 (1968). The evidence has not shown that the educational opportunities presented by the Alternative Plan are equal to, or superior to, those presently available under the Pasadena Plan. If those educators—many within the Pasadena Unified School District itself— who advocate that a multiracial...