Tinsley v. Superior Court

Decision Date23 December 1983
Citation197 Cal.Rptr. 643,150 Cal.App.3d 90
CourtCalifornia Court of Appeals Court of Appeals
Parties, 14 Ed. Law Rep. 1036 Margaret TINSLEY et al., Petitioners, v. SUPERIOR COURT OF SAN MATEO, Respondent, MENLO PARK ELEMENTARY SCHOOL DIST., et al., Real Parties in Interest. Margaret TINSLEY et al., Plaintiffs and Appellants, v. PALO ALTO UNIFIED SCHOOL DIST., et al., Defendants and Respondents. Civ. 50497, Civ. 50997. AO14019, AO14055.

Gerald Z. Marer, Alan G. Marer, Keogh, Marer & Flicker, Palo Alto, Sidney L. Berlin, Berlin & Goodman, Redwood City, Joseph Cotchett, Cotchett, Dyer & Illston, San Mateo, for petitioners and appellants.

G. Kip Edwards, Michael D. Torpey, Orrick, Herrington & Sutcliffe, Margaret E. O'Donnell, Breon, Galgani & Godino, San Francisco, for respondent Palo Alto Unified Sch. Dist.

Sanford Jay Rosen and Barbara Y. Phillips, San Francisco, for respondent Ravenswood City Elementary School Dist.

Keith V. Breon, Portola Valley, for Portola Valley Sch. Dist.

Jack Robertson, Menlo Park, for amicus curiae League of Women Voters.

Fred Okrand, Mark D. Rosenbaum, Mary Ellen Gale, Joseph Duff, Antonio Rodriguez, Margaret Crosby, Allan Schlosser, Amitai Schwartz, Los Angeles, for amicus curiae American Civil Liberties Union of Northern California.

NEWSOM, Associate Justice.

We consider in this appeal the constitutionality and effect of Article I, section 7 of the California Constitution, amended by passage of Proposition 1 by the electorate on November 6, 1979. 1

Appellants are guardian ad litem parents and their children, the latter of whom either attend or are eligible to attend schools operated by the respondent school districts. They filed a petition for writ of mandate (Code Civ.Proc., § 1085) on October 5, 1978, alleging interdistrict segregation of respondents' schools and seeking an order compelling respondents to submit a reasonably feasible plan to alleviate racial segregation in schools within the named school districts.

After a third amendment to the petition, respondents' demurrer to the petition was sustained without leave to amend and an appeal from that order taken to this court. On April 13, 1979, we decided, in Tinsley v. Palo Alto Unified School Dist. (1979) 91 Cal.App.3d 871, 154 Cal.Rptr. 591, that appellants' third amended petition did state a cause of action under the equal protection clause of the California Constitution (art. I, § 7) for inter-district relief from de facto school segregation, and the case was remanded.

Thereafter, on July 13, 1979, a fourth amended petition was filed, which in pertinent part alleges the following:

The student population of respondent Ravenswood City School District elementary schools is predominantly minority, while the student populations in the elementary schools of the other respondent school districts are predominantly white. Because of the inter-district racial imbalance in student enrollment, minority students are realistically isolated, and so a segregated school system exists.

In the "mid-peninsula community"--which includes the area contained within the borders of the named respondent school districts--the schools in the Ravenswood City School District, known as the "black schools," are considered as inferior schools. The State Department of Education test scores for students in the Ravenswood City School District are "markedly lower than those of other schools in the mid-peninsula area...." 2 Although respondents "have had actual knowledge of the existence of ... racially segregated schools" and poor test scores within the "black schools," they have failed and refused to take "reasonably feasible steps" to alleviate or eliminate segregation in the schools.

The petition specifically excludes any allegations of "de jure" or "de facto" or any acts of any respondents which may have contributed, significantly or insignificantly, to the present situation of racially segregated schools in the respondent school districts.

Following the passage of the initiative, respondents either demurred to the petition on the ground that Proposition 1 barred any judicial remedy in the nature of pupil assignment or pupil transportation for the unintentional, "de facto" segregation alleged in the pleading, or answered and asserted Proposition 1 as an affirmative defense. Appellants thereafter moved to strike the demurrers and the Proposition 1 affirmative defense from all answers, and for partial summary judgment on the pleadings concerning Proposition 1, and for a declaration that Proposition 1 was unconstitutional as violative of the 14th Amendment.

Proposition 1 significantly altered California equal protection law as it applied to school desegregation; that law had formerly, under authority of the state equal protection clause, widely differed from federal constitutional law. (Crawford v. Board of Education (1980) 113 Cal.App.3d 633, 638, 170 Cal.Rptr. 495 (Crawford II ), aff'd. 458 U.S. 527, 102 S.Ct. 3211, 73 L.Ed.2d 948.)

Federal law requires a showing of de jure segregation in all equal protection cases; that is, a "racially discriminatory" purpose (Washington v. Davis (1976) 426 U.S. 229, 240, 96 S.Ct. 2040, 2048, 48 L.Ed.2d 597) or a "current condition of segregation resulting from intentional state action." (Keyes v. School Dist. No. 1 (1973) 413 U.S. 189, 205, 93 S.Ct. 2686, 2696, 37 L.Ed.2d 548; N.A.A.C.P. v. Lansing Bd. of Ed. (6th Cir.1977) 559 F.2d 1042, 1044.) A party seeking to establish an equal protection violation in the federal courts must show that the state or school authorities "intended to, and did in fact, discriminate against minority pupils, teachers or staff." (Dayton Board of Education v. Brinkman (1977) 433 U.S. 406, 420, 97 S.Ct. 2766, 2775, 53 L.Ed.2d 851 (Dayton I ); see also Pasadena City Bd. of Education v. Spangler (1976) 427 U.S. 424, 434, 96 S.Ct. 2697, 2703, 49 L.Ed.2d 599.)

California equal protection law, on the other hand, did not, before Proposition 1, require as great a showing of denial on the part of plaintiffs seeking court-ordered busing or pupil reassignment as do the federal courts under the United States Constitution (Bustop, Inc. v. Los Angeles Board of Education (1978) 439 U.S. 1380, 1381, 99 S.Ct. 40, 41, 58 L.Ed.2d 88), so that rulings under the federal standard were neither controlling nor persuasive. (Tinsley v. Palo Alto Unified School District, supra, 91 Cal.App.3d 871, 879, 154 Cal.Rptr. 591.) State decisional law, as derived from the equal protection clause of the California Constitution, recognized that de facto school segregation was actionable prior to the passage of Proposition 1. (Crawford v. Board of Education (1976) 17 Cal.3d 280, 295, 130 Cal.Rptr. 724, 551 P.2d 28 (Crawford I ); Jackson v. Pasadena City School Dist. (1963) 59 Cal.2d 876, 882, 31 Cal.Rptr. 606, 382 P.2d 878.) In Crawford I, supra, the court noted that " 'it is the presence of racial isolation, not its legal underpinnings, that creates unequal education.' " (Id., 17 Cal.3d at p 295, 130 Cal.Rptr. 724, 551 P.2d 28, emphasis in original.) 3

The differentiating factor between de jure and de facto segregation is the "purpose or intent to segregate." (Keyes v. School Dist. No. 1, supra, 413 U.S. 189, 208, 93 S.Ct. 2686, 2697, 37 L.Ed.2d 548; N.A.A.C.P. v. Lansing Bd. of Ed., supra, 559 F.2d 1042, 1045.) And one effect of Proposition 1 is to eliminate this distinction in cases where either court-ordered busing or pupil reassignment are sought as remedial devices. Now, a showing of de jure segregation is required before California courts may order those desegregation remedies. However, all other desegregation techniques may still be utilized by the courts to alleviate de facto segregation. As the court said in Crawford II, supra, 113 Cal.App.3d 633, 652, 170 Cal.Rptr. 495, "... the effect of the constitutional amendment is to withdraw one desegregative technique from the state court's arsenal of remedies available to alleviate unintended nonpurposeful segregation, but to leave all other available techniques intact."

Proposition 1 has an additional impact upon California school desegregation law. Federal constitutional law, as expressed in Milliken v. Bradley (1974) 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 limits the scope of an interdistrict remedy to cases in which an "interdistrict violation" is shown. (Id., at p. 752, 94 S.Ct. at p. 3127.) In contrast, California equal protection law provides for imposition of a multi-district desegregation plan, where geographically feasible, even if de facto segregation is found in only one district. (Tinsley v. Palo Alto Unified School Dist., supra, 91 Cal.App.3d 871, 930-935, 154 Cal.Rptr. 591.) Therefore, by equating the California equal protection clause with the 14th Amendment of the federal Constitution, Proposition 1 also alters state equal protection law by requiring those seeking interdistrict busing or pupil assignment, such as appellants herein, to show de jure segregation and meet the Milliken standards.

The trial court found Proposition 1 constitutionally valid, sustained respondents' demurrers, and subsequently entered an order dismissing appellants' fourth amended petition. An appeal was thereafter taken to this court and has been consolidated with a separate petition originally filed by appellants in the California Supreme Court.

After briefing in this case, the United States Supreme Court granted a hearing in Crawford II, supra. Because of the identity of issues presented, we have awaited the decision in Crawford v. Board of Education (1982) 458 U.S. 527, 102 S.Ct. 3211, 73 L.Ed.2d 948), and now find that decision dispositive of the equal protection issues raised in the case at bench. Other issues, as will be seen, remain to be decided.

In Crawford, the court found Proposition 1 to be consistent with federal equal protection...

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