Crawford v. Board of Education

Opinion

The issues are whether the amendment to article I, section 7, subdivision (a), of the California Constitution, adopted November 6, 1979, on pupil school assignment and pupil transportation (Prop. 1) violates the United States Constitution, and, if it does not, whether the remedial order entered by the superior court on July 7, 1980, in the Los Angeles School District desegregation cause entitled Crawford v. Board of Education contravenes article I, section 7, subdivision (a) of the California Constitution.

The Board applied to the superior court to modify the plan then in effect by eliminating all mandatory reassignment and “busing” of pupils. On May 19, 1980, the court denied the application on the ground that the original trial court had found the Board guilty of de jure segregation in violation of the Fourteenth Amendment to the United States Constitution. On July 7, 1980, the superior court issued a new order, which, though somewhat different from its 1978 order, required substantial mandatory reassignment and transportation of pupils in the District. We have expedited the appeals from these two orders in accordance with the recommendation of the California Supreme Court.

Both California and federal law pertaining to segregation in the public schools have a common origin in the United States Supreme Court decision of Brown v. Board of Education (1954) 347 U.S. 483 [ 98 L.Ed. 873 , 74 S.Ct. 686 , 38 A.L.R.2d 1180 ]. But thereafter California and federal law followed parallel but somewhat different courses. As we will develop, infra, the clear impact of Proposition 1 is to bring one aspect of California law into conformity with federal law.

The United States Supreme Court decisions, starting with Brown v. Board of Education, supra, have examined the problem of segregation in the public schools of the various states in the light of the equal protection clause of the United States Constitution. The essential holding of Brown was that state constitutional and statutory provisions requiring segregation of white and black children in public schools on the basis of race deny black children the equal protection of the laws guaranteed by the Fourteenth Amendment and are therefore void. In rejecting the long-standing separate-but-equal rule of Plessy v. Ferguson (1896) 163 U.S. 537 [ 41 L.Ed. 256 , 16 S.Ct. 1138 ], the court in Brown held that separate educational facilities are inherently unequal for the reason that the mere fact of legalized segregation generates a feeling of inferiority in the black students. (P. 494 [98 L.Ed. at p. 880].) In essence, psychological trauma was at the heart of the Brown decision. Thurgood Marshall, the then counsel of the National Association for the Advancement of Colored People, in arguiñg before the Supreme Court in Brown urged only “that the state-imposed racial segregation be taken off.... If school officials were enjoined from enforcing segregation, then I think whatever district lines... are drawn on

The objective of the Brown decision, and of the cases later implementing it, was to dismantle officially imposed dual school systems. Once a dual system has been dismantled and a unitary system established, a school board is under no affirmative federal duty to adjust attendance to comport with shifting and changing neighborhood racial patterns, so long as the changes are attributable to private conduct. (Pasadena City Bd. of Education v. Spangler (1976) 427 U.S. 424 [ 49 L.Ed.2d 599 , 96 S.Ct. 2697 ].) The scope of federal constitutional law in this field was clarified over the ensuing years in a series of decisions rendered by the United States Supreme Court at a time subsequent to the findings and conclusions of the original trial judge herein in 1970.

Clarification began with Swann v. Board of Education (1971) 402 U.S. 1 [ 28 L.Ed.2d 554 , 91 S.Ct. 1264 ], a southern school desegregation case concerning remedies available to a federal court to desegregate a legally segregated school system. Two of its points are relevant here. No particular degree of racial balance or mix is required to desegregate a school. (P. 24 [28 L.Ed.2d at p. 571].) Absent a constitutional violation a federal court has no authority to assign students to schools on the basis of race. (P. 28 [28 L.Ed.2d at pp. 573-574].)

The next development came in Keyes v. School District No. 1, Denver, Colo. (1973) 413 U.S. 189 [ 37 L.Ed.2d 548 , 93 S.Ct. 2686 ], a case of deliberate, intentional racial segregation in a western city. The court declared that to establish unlawful segregation in violation of the Fourteenth Amendment “plaintiffs must prove not only that segregated schooling exists but also that it was brought about or maintained by intentional state action... [consisting of] an unconstitutional policy of deliberate racial segregation (P. 198 [37 L.Ed.2d at p. 557].) De jure segregation, said the court, comprehends purpose or intent to segregate. (P. 208 [37 L.Ed.2d at p. 563]; italics in original.)

Thereafter followed the decision in Washington v. Davis (1976) 426 U.S. 229 [ 48 L.Ed.2d 597 , 96 S.Ct. 2040 ], a case involving claimed racial discrimination in police officer tests. In discussing the Fourteenth Amendment’s prohibition against official discrimination on the basis of

Next came Pasadena City Bd. of Education v. Spangler (1976) 427 U.S. 424 [ 49 L.Ed.2d 599 , 96 S.Ct. 2697 ], a case involving termination of an existing desegregation plan. The original plan had established a racially neutral school system, said the court, and from that point on the power of the district court to order assignment of pupils to schools on the basis of race came to an end, even though subsequent population shifts had brought about a degree of resegregation. Absent a constitutional violation there is no basis for judicial assignment of pupils on a racial basis. (P. 434 [49 L.Ed.2d at p. 607].)

In Arlington Heights v. Metropolitan Housing Corp. (1977) 429 U.S. 252 [ 50 L.Ed.2d 450 , 97 S.Ct. 555 ], where racially discriminatory zoning was charged, the court again noted that proof of racially discriminatory intent or purpose was required to show a violation of the equal protection clause of the Fourteenth Amendment. (P. 265 [50 L.Ed.2d at p. 464].)

Thereafter, in Dayton Board of Education v. Brinkman (1977) 433 U.S. 406 [ 53 L.Ed.2d 851 , 97 S.Ct. 2766 ] (Dayton I), a school desegregation case, the court once more noted that racial isolation by itself “is not a violation of the Fourteenth Amendment in the absence of a showing that this condition resulted from intentionally segregative actions.” (P. 413.) District courts may exercise power over school districts only on the basis of a constitutional violation which results from action by a school board which is intended to, and does in fact, discriminate against minorities. (P. 420 [53 L.Ed.2d at p 859].) The same theme appears in Milliken v. Bradley (1977) 433 U.S. 267 [ 53 L.Ed.2d 745 , 97 S.Ct. 2749 ] (Milliken II), another northern school desegregation case, where

Most recently, in Columbus Board of Education v. Penick (1979) 443 U.S. 449 [ 61 L.Ed.2d 666 , 99 S.Ct. 2941 , 2982], the court again observed that the conduct prohibited to school boards is intentional segregation. Plaintiffs must prove that school officials intended to segregate, said the court. “[Disparate impact and foreseeable consequences, without more, do not establish a constitutional violation.” (P. 464 [61 L.Ed.2d at p. 681].) And in the companion case of Dayton Board of Education v. Brinkman (1979) 443 U.S. 526 (Dayton II), at page 536, footnote 9 [ 61 L.Ed.2d 720 , 732, 99 S.Ct. 2971 ], the court said: “We have never held that as a general proposition the foreseeability of segregative consequences makes out a prima facie case of purposeful racial discrimination ...(Italics added.)

The foregoing decisions of the United States Supreme Court clearly identify constitutional violations of the Fourteenth Amendment as instances which involve intentional segregative state action taken with discriminatory purpose. In more familiar terms we can describe this intent as specific intent to discriminate. Only such a violation authorizes a federal court to give orders to a local school board on the conduct of school business. A correlative of this rule is that racial isolation which has resulted from causes other than intentional discrimination does not constitute a violation of the Fourteenth Amendment. In sum, the federal Constitution does not require integration, it only prohibits state-compelled segregation. (Swann v. Board of Education (1971) supra, 402 U.S. 1 .) This subsequently developed frame of reference for addressing claims of the denial of equal protection of the laws by reason of racial imbalance in public schools is a natural extension of the rationale of Brown v. Board of Education, supra, in that it is intentional or purposeful segregation which produces feelings of inferiority in minority students and the consequent damaging psychological effects.

With the scope of federal law in mind, we analyze the situation as it existed in the District in 1970 at the time the trial court entered its original findings of fact and conclusions of law, a time prior to the clarification we have just discussed of the scope of the Fourteenth

Subsequent to 1963, said the court, none of the school sites or school attendance boundaries selected by the Board was designed to effectuate desegregation or integration.

The court also found, without any specifics, that plant, teachers, physical facilities, and curriculum at the Board’s minority schools were in fact of poorer quality than plant, teachers, physical facilities, and curriculum at its predominantly white schools, that minority schools were more crowded than white schools.

The court then concluded that the Board had segregated, de jure, its students through the following policies, practices, and omissions:

Adoption of policies of site selection and neighborhood schools without regard to desegregation or integration.

Establishment of attendance areas and boundaries without regard to its duty to create racially balanced schools and to eliminate segregation. Board practices included assignment of pupils by geographic area and adoption of feeder policies without regard to existing racial imbalance.

Establishment of transfer and transportation policies of which socioeconomic disadvantaged students could not take advantage and which failed to provide free transportation for pupils given permits to transfer. As a consequence the socio-economic disadvantaged student was forced to attend a segregated neighborhood school. Open enrollment, said the court, was not a policy to correct racial imbalance but merely a tool of which disadvantaged pupils could not avail themselves.

Restriction to surplus funds of expenditures to create racial balance and provide compensatory educational programs for minorities.

The court asserted that in terms of educational discrimination there is no difference between de jure and de facto segregated schools. It is not true, said the court, “that the Federal Constitution only requires integrated education. . .if the segregation... is of a de jure nature.” (Finding V.6.) It is virtually impossible, said the court, for neighborhood schools which are in fact segregated to have only de facto segregation. (Conclusion VII.)

Patently, the trial court in 1970 took the view that the federal Constitution required elimination of school segregation, regardless of its cause and irrespective of the existence of state action intended with discriminatory purpose to bring about segregation. On this basic premise the trial court deduced the existence of de jure segregation from such neutral acts as maintenance of a neighborhood school system, siting of schools in the geographic center of their need, assignment of pupils to neighborhood schools, and failure to provide free transportation for open transfers. Having found a federal constitutional violation, the trial court then declared that a pupil has no right to choose which public school he will attend (V.19(v)), and that the Board has an affirmative duty to provide equal educational opportunity by compelling its pupils to attend schools on the basis of their race or color. (V.19(iii).)

As noted earlier, the trial court made these deductions and inferences in 1970 at a time it did not have the benefit of the more recent decisions of the United States Supreme Court. In the intervening period that court has made it clear that the federal Constitution only authorizes court assignment and transportation of pupils on the basis of race when there has been state action which intentionally segregates with discriminatory purpose. If no such state action has occurred, elimination or alleviation of racial segregation which has resulted from economic causes and from neighborhood residential patterns is a matter left to local school authorities. In the early development of the law implementing Brown v. Board of Education (1954) supra, 347 U.S. 483 , the phrases de jure and de facto were used as a kind of shorthand to distinguish between segregation mandated by statute and segregation which had resulted from the operation of demographic, economic,, and other voluntary factors. The concept of unlawful segregation, however, rapidly outgrew segregation by statute and came to encompass all state activity designed to bring about racial segregation, whether facially neutral or not. (Cf. Yick Wo v. Hopkins (1886) 118 U.S. 356 [ 30 L.Ed. 220 , 6 S.Ct. 1064 ].) Unlawful segregation in violation of the Fourteenth Amendment was not limited to segregation by statute, regulation, or ordinance, but extended to acts and practices of a school board consciously adopted with discriminatory purpose to create or perpetrate

When the 1970 findings of the trial court are reviewed in the light of the correct applicable federal law, it is apparent that no specific segregative intent with discriminatory purpose was found. The thrust of the findings of the trial court was that passive maintenance by the Board of a neighborhood school system in the face of widespread residential racial imbalance amounted to de jure segregation in violation of the Fourteenth Amendment.

The essence of the trial court’s findings is synthesized in the following paragraph: “Board had, and knew that it had, the power and the duty specially imposed by law upon it, though denied by it: To adopt school assignment policies that would incorporate other than geographical criteria, i.e., policies that would rectify the existing racial imbalances and that would create or tend to create racial balance and

But a school board has no duty under the Fourteenth Amendment to meet and overcome the effect of population movements. “That there are both predominantly black and predominantly white schools in a community is not alone violative of the Equal Protection Clause.” (Washington v. Davis (1976) 426 U.S. 229 , at p. 240 [ 48 L.Ed.2d 597 , 608, 96 S.Ct. 2040 ].) And, as the court said in Dayton Board of Education v. Brinkman (1977) 433 U.S. 406 , 413 [ 53 L.Ed.2d 851 , 859, 97 S.Ct. 2766 ], (Dayton I), “The finding that the pupil population in the various Dayton schools is not homogeneous, standing by itself, is not a violation of the Fourteenth Amendment .. .. ” When the trial court at bench concluded in 1970 that such a duty was required by federal law, the trial court clearly erred as a matter of law. Since the trial court’s characterization of the Board’s action as de jure segregation was a conclusion of law rather than a finding of fact, we are not bound by it. (Morrison v. State Board of Education (1969) 1 Cal.3d 214 , 238 [ 82 Cal.Rptr. 175 , 461 P.2d 375 ]; Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956 , 963 [ 88 Cal.Rptr. 188 , 471 P.2d 988 ].)

In sum, no federal violation of law was established by the 1970 findings, and the trial court’s identification of the then existing racial segregation within the Los Angeles school system as de jure segregation was true only in a Pickwickian sense, and was not true at all in the sense of federal law. Because there was no evidence of acts done with specific segregative intent and discriminatory purpose, there was no federal constitutional violation—regardless of the terminology used by the court.

One further element which bears tangentially on the question of intentional segregation with discriminatory purpose is the trial court’s finding that the plant, teachers, physical facilities, and curriculum of minority schools were of poorer quality than those of predominantly white schools and that overcrowding in minority schools was greater than in white schools. This finding, however, did not assert that the lower quality of minority schools resulted from intentional segregation with

When on appeal this cause reached the California Supreme Court, Crawford v. Board of Education (1976) 17 Cal.3d 280 [ 130 Cal.Rptr. 724 , 551 P.2d 28 ], that court squarely based its substantial affirmance of the trial court on the state constitutional ground of equal protection of the laws, determining that under state law the Board had a constitutional duty to alleviate segregation in the schools regardless of cause. The existence of segregated schools in the District, coupled with the Board’s failure to take reasonably feasible steps to desegregate its schools, said the court, constituted a sufficient basis to sustain the trial court’s order.

The California Supreme Court noted and agreed with the trial court’s characterization of the segregation as de jure in nature, but it also noted that whether school districts have an obligation under the federal Constitution to eliminate segregation regardless of cause was an open question and, therefore, it rested its decision on state constitutional grounds. The court then declared that because segregation existed in the schools of the District and the Board had failed to undertake rea-.

The remaining question is the federal constitutionality of a state constitutional amendment conforming state court use of mandatory assignment and transportation of pupils on the basis of race to that authorized for the federal courts under the Fourteenth Amendment.

California law on the subject of school desegregation has evolved from the opinion of the California Supreme Court in Jackson v. Pasadena City School Dist. (1963) 59 Cal.2d 876 [ 31 Cal.Rptr. 606 , 382 P.2d 878 ]. That case involved a demurrer to a complaint which alleged that the Pasadena City School District had gerrymandered its school attendance boundaries to perpetuate racial segregation in certain schools. The court, relying on Brown v. Board of Education (1954) supra, 347 U.S. 483 , reasserted the proposition that intentional segregation by race in the public schools denies minority students the equal protection of the laws. The issue in Jackson was the use by the Pasadena school board of school boundaries designed to perpetuate racial segregation, an allegation which, if true, amounted to intentional segregation with discriminatory purpose in violation of the Fourteenth Amendment. The court, observing that racial imbalance in California schools is usually caused by economic factors and housing patterns rather than by intentional segregation imposed by school authoritites, concluded that even in the absence of officially caused or officially perpetuated segregation, a school board has a duty to affirmatively address the problem of racial imbalance. The court, however, was careful to point out that in performing that duty "... consideration must be given to the various factors in each case, including the practical necessities of governmental operation... the degree of racial imbalance in the particular school... the difficulty and effectiveness of revising school boundaries. . . and the availability of other facilities to which students can be transferred.” (Jackson v. Pasadena City School Dist., supra, at p. 882.)

Jackson was followed by San Francisco Unified School Dist. v. Johnson (1971) 3 Cal.3d 937 [ 92 Cal.Rptr. 309 , 479 P.2d 669 ], which interpreted Jackson, supra, as imposing on California school boards an

When the cause at bench, Crawford v. Board of Education (1976) 17 Cal.3d 280 [ 130 Cal.Rptr. 724 , 551 P.2d 28 ], came before the California Supreme Court, state law on this subject was formally severed from federal law, and school boards were placed under an affirmative duty to undertake reasonably feasible steps to alleviate racial segregation in public schools regardless of the cause of the segregation. The existence of the duty was derived both from state decisional law (Jackson, supra, and Johnson, supra) and from the equal protection clause in article I, section 7, subdivision (a), of the California Constitution. (Crawford, pp. 297, 302.) The cause was then remanded to the trial court with instructions to supervise the preparation and implementation of a reasonably feasible desegregation plan. The trial court was ordered to proceed on the basis of state law, and to utilize such of the “literally scores” (pp. 286, 305) of desegregation techniques as might provide reasonably feasible means for desegregation. The California Supreme Court identified “busing” as merely one of the "-potential tools that might be utilized.

Subsequent to remand but before the trial court made its definitive order of July 7, 1980, article I, section 7, subdivision (a), of the California Constitution was amended to remove “busing” (pupil school assignment and pupil transportation) from the arsenal of techniques available to a state court to alleviate racial school segregation caused by economic, geographic, and demographic, factors and not by intentional segregation with discriminatory purpose. The posture of the cause and the position of those connected with it then became as follows:

The Board remains subject to its constitutional duty under, state law to undertake reasonably feasible steps to alleviate school segregation regardless of cause.

In carrying out its duty the Board may utilize any or all desegregation techniques, including pupil assignment and pupil transportation.

The Board is not subject to any federal obligation for violation of the Fourteenth Amendment.

The trial court is under a duty to supervise the preparation and implementation of a reasonably feasible desegregation plan. In the absence

Plaintiffs also rely on Hunter v. Erickson (1969) 393 U.S. 385 [ 21 L.Ed.2d 616 , 89 S.Ct. 557 ], as authority for the invalidity of Proposition 1. There, an Akron, Ohio, charter amendment required that city ordinances dealing with discrimination on the basis of race, color, religion, national origin, or ancestry in the area of housing must be approved by a majority of voters at a general or regular election. Other ordinances, including ordinances dealing with other forms of discrimination, would become effective 30 days after passage by the city counsel. The United States Supreme Court noted that the Akron charter amendment “was an explicitly racial classification treating racial housing matters differently from other racial and housing matters.” (P. 389 [21 L.Ed.2d at p. 621].) This discrimination on the basis of race, religion, or ancestry violated the Fourteenth Amendment “because the core of the Fourteenth Amendment is the prevention of meaningful and unjustified official distinctions based on race, ...” (P. 391 [21 L.Ed.2d at p. 622].)

At bench, however, and unlike the Akron charter amendment, Proposition 1 embraces the protection of the Fourteenth Amendment and does not seek to violate it.

If a state is not under a federal duty to adopt a particular act in the first place (such as rectification of racial imbalance in its schools which has resulted from population shifts, cf. Pasadena Board of Education v. Spangler (1976) 427 U.S. 424 [ 49 L.Ed.2d 599 , 96, S.Ct. 2627]) recission of the act cannot be unconstitutional. See Dayton Board of Education v. Brinkman (1977) 433 U.S. 406 , 413-414 [ 53 L.Ed.2d 851 , 859-860, 97 S.Ct. 2766 ] (Dayton I), and Dayton Board of Education v. Brinkman (1979) 443 U.S. 526 [ 61 L.Ed.2d 720 , 729-730, 99 S.Ct. 2971 ] (Dayton II), where at page 531, footnote 5, the court

At oral argument plaintiffs’ counsel candidly took the position that if, for example, California should recede from its present restrictive laws on the scope of permissible search and seizure to make them conform to the less stringent restrictions on search and seizure required under the federal Constitution, such California action would violate the Fourteenth Amendment. In effect, California’s presently restrictive laws on search and seizure could never be relaxed, either by state or federal action. On this point we note our basic disagreement with counsel, and we conclude that as a matter of federal constitutional law California can conform its constitutional protection of rights in this and other areas to those given under the United States Constitution, even though the specific protection under the California Constitution might have previously exceeded that under the federal Constitution.

In short, we do not believe a state constitutional amendment can be said to violate the Fourteenth Amendment by specifically embracing it.

2. Improper discriminatory purpose. The argument here is that Proposition 1 was passed with segregative intent and discriminatory purpose. A sufficient answer may be found in the constitutional amendment itself, which declares the amendment is necessary to make most effective use of the limited resources available for public education, to maximize educational opportunities, to protect the health and safety of pupils, to enhance the ability of parents to participate in the educational

3. Deprivation of vested rights. Plaintiffs’ final argument against the application of Proposition 1 to this cause is that it wrongfully deprives minority children of their vested right to a desegregated education. We do not believe any pupil has a vested right to require other pupils to be assigned to public schools on the basis of race. The sole vested right involved, if that is the proper phrase, is the right of a pupil to receive an education which is not intentionally segregated and to attend a school where the school board has performed its duty to take all reasonable steps to alleviate segregation, regardless of cause. This right, recognized in Crawford, supra, has not been removed by Proposition 1, which does not purport to change the duty imposed on a school board by California law to take all reasonably feasible steps to alleviate racial segregation in its schools regardless of cause. All the amendment does is remove from the courts the remedy of pupil school assignment and pupil transportation as one among scores of remedies available for use by

In sum, article I, section 7, subdivision (a), does not intentionally authorize or perpetuate segregation with discriminatory purpose. Nor does it remove the duty of a school board under state law to affirmatively address the problem of racial imbalance in the schools. It divests no vested rights. In requiring that remedial aspects of the duty to desegregate conform to the requirements of the Fourteenth Amendment as interpreted by the decisions of the United States Supreme Court, it merely provides a more precise contour to the duty established by California law and court decisions to desegregate public schools regardless of cause. (Cf. Brown v. Califano (D.C.Cir. 1980) 627 F.2d 1221 .) We conclude that Proposition 1 does not violate the federal Constitution and that its application to this cause is constitutional under the Fourteenth Amendment.

The orders of May 19, 1980, and July 7, 1980, are vacated, and the matter is remanded to the trial court for further proceedings consistent with this opinion. It is not our intent to disrupt the operation of the schools during the present semester. Since our decision will not become final for 30 days, the parties have ample time to take whatever legal action they think desirable prior to the commencement of the next school

A petition for a rehearing was denied January 14, 1981, and the petition of plaintiffs and respondents for a hearing by the Supreme Court was denied March 11, 1981. Bird, C. J., was of the opinion that the petition should be granted.