Tinsley v. Palo Alto Unified School District

Opinion

Petitioners, the parents of elementary school children in various elementary school districts within the territory embraced within the boundaries of Sequoia Union High School District and in Palo Alto Unified School District, seek a writ of mandate to compel the respondent elementary districts and others to submit to the court a reasonably feasible plan to eliminate or alleviate alleged racially segregated schools existing within those districts. They have appealed from a judgment entered following an order sustaining, without leave to amend, the demurrers to their second amended petition as amended by a third amendment. It appears from the pleadings that the alleged segregation of which complaint is made is interdistrict in nature, and allegedly can only be eliminated or alleviated by an interdistrict plan. The trial court ruled that the petition, as thrice amended, failed to state a cause of action because it fails to allege any intentionally segregative acts or omissions requiring interdistrict relief, and, alternatively, because it fails to allege any acts or omissions, whether intentionally segregative or not, which require interdistrict relief.

The issue as so framed has been resolved in accordance with the position of respondents under the equal protection clause of the Fourteenth Amendment of the United States Constitution as construed in Milliken v. Bradley (1974) 418 U.S. 717 [ 41 L.Ed.2d 1069 , 94 S.Ct. 3112 ]). It was left unresolved under our California Constitution in Crawford v. Board of Education (1976) 17 Cal.3d 280 (see p. 303, fn. 14) [ 130 Cal.Rptr.

Nevertheless those respondents assert that the one final judgment rule must be applied to defeat the appeal in this case because the interests of the state, a remaining defendant, and the local respondents in this case are identical both in terms of the legal issues raised and in the relief sought by the petitioners, and, therefore, the judgment in this case cannot be a complete determination of the matter. On its face this argument is inherently inconsistent with the position successfully advocated by those respondents in the lower court when they secured the order sustaining their demurrers without leave to amend and the ensuing judgment. If, as now stated, the local districts are mere agencies of the state so that any relief directed against the state will by necessity affect them, the trial court may have erred in sustaining the demurrers. On that theory the appeal should not be dismissed, but the judgment should be reversed. The premise that there are identical interests does not bear scrutiny. The local districts, as agents, may have limited powers in

Furthermore the precedents upon which those respondents rely do not support their position. In Hohorst v. Hamburg-American Packet Co. (1893) 148 U.S. 262 [ 37 L.Ed. 443 , 13 S.Ct. 590 ], the court did rule that a decree dismissing one defendant who allegedly was jointly responsible for a patent infringement was not an appealable final decree. The court applied the prevailing federal rule, apparently predicated upon the English common law and applied in federal legal, equitable and admiralty matters. The federal common law rule cannot control the statutes of this state.

In Call v. Alcan Pacific Co. (1967) 251 Cal.App.2d 442 [ 59 Cal.Rptr. 763 ], the court did entertain what appeared to be an untimely appeal from a judgment in favor of a surety which had been entered more than three months prior to the judgment in favor of the principal from which a timely appeal was perfected. The court relied upon Nolan v. Smith (1902) 137 Cal. 360 [ 70 P. 166 ], and noted: “When a lawsuit involves a single claim against principal and surety, an appellate court should not be subjected to their separate appeals.” (251 Cal.App.2d at p. 449, fn. 11.) The court noted that there was no finding of any circumstance which would permit separation of the liability of the surety and principal, and adopted the position the judgment in the surety’s favor was premature rather than void and only became final, and appealable, upon entry of the judgment in the principal’s favor. The alleged relationship of principal and agent between the state and local district does not necessarily create a relationship of principal and surety. In Nolan v. Smith, supra, upon which the A lean court relied, the court did dismiss the appeal by the claimant from a judgment dismissing the sureties, on the alleged tortfeasor’s official bond. The general ruling of that case has been strictly qualified, if not overruled. In Rocca v. Steinmetz, supra, 189 Cal. 426 , the court stated: “That the judgment must be final against the defendant in whose favor it is given is essential to the right of appeal. But such a judgment is final within the meaning of that term, as given, in section 963. No other judgment can be entered against him, as he will go free if the case goes no further against him. Nolan v. Smith, supra, must be overruled on this point, unless it is

We note, however, that, without objection, parents have themselves alone sought and obtained relief. (Dayton Board of Education v. Brinkman, supra, 433 U.S. at p. 408, fn. 1 [53 L.Ed.2d at p. 856, 97 S.Ct. at p. 2769]; and Keyes v. School District No. 1, Denver, Colo. (1973) 413 U.S. 189 , 191 [ 37 L.Ed.2d 548 , 553, 93 S.Ct. 2686 ].) In Keyes, Mr. Justice Powell, in dissenting in part, noted, with respect to the rights and duties parents have with respect to their children, “The law has long recognized the parental duty to nurture, support, and provide for the welfare of children, including their education.” (413 U.S. at pp. 246-247 [37 L.Ed.2d at p. 585].) Petitioners contend that a violation of parents’ fundamental right to educate their children as they choose, gives them a right to sue. (See Keyes v. School District No. 1, Denver, Colo., supra, Powell, J., dissenting, at p. 247 [37 L.Ed.2d at p. 585]; Griswold v. Connecticut (1965) 381 U.S. 479 , 482 [ 14 L.Ed.2d 510 , 513, 85 S.Ct. 1678 ]; Pierce v. Society of Sisters (1925) 268 U.S. 510 , 534-535 [ 69 L.Ed. 1070 , 1077-1078, 45 S.Ct. 571 , 39 A.L.R. 468 ]; Meyer v. Nebraska (1923) 262 U.S. 390 , 399-400 [ 67 L.Ed. 1042 , 1045, 43 S.Ct. 625 , 29 A.L.R. 1446 ]; Johnson v. San Francisco Unified School District (9th Cir. 1974) 500 F.2d 349 , 352-353; Smuck v. Hobson (D.C.Cir. 1969) 408 F.2d 175 , 179, fn. 11; and In re Roger S. (1977) 19 Cal.3d 921 , 928 [ 141 Cal.Rptr. 298 , 569 P.2d 1286 ].) Although the violations alleged may have a tangential effect on the choices available to the parents, it is not directly alleged that such parental freedom of choice has been violated. (See International Union of United Auto. etc. Workers v. Department of Human Resources Dev., supra, 58 Cal.App.3d 924 , 935.)

In Pasadena City Bd. of Education v. Spangler (1976) 427 U.S. 424 [ 49 L.Ed.2d 599 , 96 S.Ct. 2697 ], the court recognized the derivative nature of any parent’s right in holding that the action was moot as to the individual respondents, the original student plaintiffs and their parents, because the

In Serrano v. Priest (1971) 5 Cal.3d 584 [ 96 Cal.Rptr. 601 , 487 P.2d 1241 ] (cert. den., 432 U.S. 907 [ 53 L.Ed.2d 1079 , 97 S.Ct. 2951 ]), the action was brought by the school children and their parents jointly. {Id., at p. 589.) The right of the children to sue was phrased as follows: “[W]e are satisfied that plaintiff- children have alleged facts showing that the public school financing system denies them equal protection of the laws because it produces substantial disparities among school districts in the amount of revenue available for education.” {Id., at p. 618.) The right of the parents to sue was predicated upon their standing as taxpayers to seek an injunction “to prevent public officers of a county from acting under an allegedly void law.” (Id., at p. 618.) No such relief is sought by the parents in this case. We also note that in Bustop v. Superior Court (1977) 69 Cal.App.3d 66 [ 137 Cal.Rptr. 793 ], the court ordered the trial court to permit an organization of 65,000 parents to intervene in the Crawford case (Crawford v. Board of Education, supra, 17 Cal.3d 280 ), to participate in the fashioning of any decree which might result in the mandatory reassignment and busing of students. (69 Cal.App.3d at p. 73. See also Johnson v. San Francisco Unified School District, supra, 500 F.2d 349 , 352-354; and Smuck v. Hobson, supra, 408 F.2d 175 , 177-182. Cf. Hatton v. County Board of Education of Maury Co., Tenn. (6th Cir. 1970) 422 F.2d 457 , 460-461.) These decisions indicate that the parents may have an interest in the remedy to be granted, but they do not destroy the principle that a violation of the child’s right must be shown before any remedy may be invoked.

The allegation “Petitioners bring this action on their own behalf and on behalf of all persons similarly situated” adds naught to their case. It is established that in order to sustain a class suit the complainant must be a person who is entitled to the right asserted. (Parker v. Bowron, supra, 40 Cal.2d 344 .) In Parker the court stated, “Parker cannot give himself standing to sue by purporting to represent a class of which he is not a member.” (40 Cal.2d at p. 353. See also, Pasadena City Bd. of Education v. Spangler, supra, 427 U.S. 424 , 430 [ 49 L.Ed.2d 599 , 605].)

Appellants also assert that the parents’ right to sue may be predicated on the principle that the failure of a minor to proceed through a guardian ad litem does not affect the jurisdiction of the court and may be waived (see Pacific Coast etc. Bank v. Clausen (1937) 8 Cal.2d 364 , 366 [ 65 P.2d 352 ]; Dunn v. Dunn (1896) 114 Cal. 210 , 212 [ 46 P. 5 ]: Cikuth v.

At oral argument and by supplemental briefs petitioners for the first time contended that they had standing under the general principle adopted and endorsed in Bd. of Soc. Welfare v. County of L. A. (1945) 27 Cal.2d 98 [ 162 P.2d 627 ], reading as follows; “ ‘[B]y the preponderance of authority . . . where the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the relator need not show that he has any legal or special interest in the result, since it is sufficient that he is interested as a citizen in having the laws executed and the duty in question enforced. . . .’ ” (27 Cal.2d at pp. 100-101, quoting 35 Am.Jur., § 320, p. 73 [state board seeking local government compliance with its orders]. Accord, Hollman v. Warren (1948) 32 Cal.2d 351 , 357 [ 196 P.2d 562 ] [applicant seeking to force Governor to exercise discretion, denied by alleged unconstitutional law, to appoint notaries]; McDonald v. Stockton Met. Transit Dist., supra, 36 Cal.App.3d 436 , 440 [rule not applied]; Residents of Beverly Glen, Inc. v. City of Los Angeles, supra, 34 Cal.App.3d 117 , 127 [residents’ organization attacking use permit granted pursuant to an alleged unconstitutional ordinance]; American Friends Service Committee v. Procunier, supra, 33 Cal.App.3d 252 , 256 [attack on rules and regulations, of Adult Authority by corporations interested in prisoner welfare]; Diaz v. Quitoriano (1969) 268 Cal.App.2d 807 , 811 [ 74 Cal.Rptr. 358 ] [class action to force Department of Social Welfare to advise petitioner and others of their rights]; and Fuller v. San Bernardino Valley Mun. Water Dist., supra, 242 Cal.App.2d 52 , 58 [right of petitioners for formation of nonmunicipal water district to secure order terminating attempted subsequent annexation of some territory by neighboring district]. See also, Ballard v. Anderson (1971) 4 Cal.3d 873 , 876 [ 95 Cal.Rptr. 1 , 484 P.2d 1345 , 42 A.L.R.3d 1392 ] [public interest precluding dismissal as moot]. Note, Code Civ. Proc., § 526a; Serrano v. Priest, supra, 5 Cal.3d 584 , 618; and Blair v. Pitchess (1971) 5 Cal.3d 258 , 267-270 [ 96 Cal.Rptr. 42 , 486 P.2d 1242 , 45 A.L.R.3d 1206 ].) The parents here are not suing as an organization to enforce the rights of their own members. Their interest as parents and members of the public,

For the purposes of this case it is unnecessary to consider whether the failure to join the minor students as plaintiffs requires dismissal of the action, or whether it is a defect which may be waived. We merely need conclude that in the face of objection, such as interposed by the Palo Alto district in this case, the minors should be joined as plaintiffs. The error of the trial court in ruling on that phase of the Palo Alto district’s demurrer does not require an affirmance of the judgment. It is analogous to an erroneous ruling on a special demurrer, which does not warrant a reversal but a remand for amendment. Here in view of the trial court’s favorable rulings, the petitioners never had cause to seek to amend by bringing in their children as parties. In Klopstock v. Superior Court, supra, 17 Cal.2d 13 , the court upheld an amendment which permitted further prosecution of an action by a proper party, despite a prior ruling that the original plaintiff had no standing to sue. The court stated: “The defendants have been fully apprised since the filing of the original complaint of the facts which are relied upon to state a right to relief against them in behalf of the corporation. Under the facts of this case, therefore, we hold that the amendment complained of did not constitute the statement of a wholly different cause of action which would prevent amendment of the complaint, but, on the contrary, was well within the liberal discretion which is granted to the courts by Code of Civil Procedure, section 473.” (17 Cal.2d at p. 21. See also, La Sala v. American Sav. & Loan Assn., supra, 5 Cal.3d 864 , 872, 873-874 & 875-876.)

Jackson v. Pasadena City School Dist., supra, 59 Cal.2d 876 , mandates that the averments with respect to racial segregation should be treated on general demurrer as allegations of ultimate facts and not mere conclusions of law. (59 Cal.2d at p. 879.) We conclude that in the light of the later decision we should find the meaning of “segregated schools” as used in this complaint in the light of the whole record. It then appears from the other allegations of the complaint, from the relief sought, and from the arguments advanced by appellants below and in this court, that the students in Ravenswood are isolated from majority students in other districts, and the students in other districts are isolated from minority students because of the respective racial composition of the school population of each of the districts. Interdistrict relief is sought from this imbalance. There is no contention that any of the respondent districts has an invalid imbalance among its own schools which can be alleviated by intradistrict action.

It is further alleged that the racial composition of faculty and staff of the Ravenswood district schools is disproportionately minority when compared with that of the schools in the surrounding districts. Attached statistics indicate that 47 percent of the certified staff is of minority ethnic origin in Ravenswood, as distinguished from a range of 3 percent to 10 percent in the other elementary districts.

The petitioners focus on the mid-Peninsula community, that is, the community residing within the boundaries of the Palo Alto Unified School District and the Sequoia Union High School District. They allege

The allegations of a further controversial paragraph are reviewed below.

Both sides agree that the complaint frames the issue, left unresolved in Crawford (17 Cal.3d at p. 303, fn. 14), as to the extent and manner a court may intervene to order the correction of racial imbalance in public schools which is manifest in a geographical area embracing two or more independent school districts.

As we have set forth, petitioners rely on their children’s rights under the Constitution of the State of California. The California decisions “authoritatively establish that in this state school boards do bear a constitutional obligation to take reasonable steps to alleviate segregation in the public schools, whether the segregation be de facto or de jure in origin.” (Crawford v. Board of Education, supra, 17 Cal.3d 280 , 290; see pp. 290-302. See also National Assn, for Advancement of Colored People v. San Bernardino City Unified Sch. Dist. (1976) 17 Cal.3d 311 , 325 [ 130 Cal.Rptr. 744 , 551 P.2d 48 ]; Santa Barbara Sch. Dist. v. Superior Court (1975) 13 Cal.3d 315 , 325-328 [ 118 Cal.Rptr. 637 , 530 P.2d 605 ]; Serrano v. Priest, supra, 5 Cal.3d 584 , 603-604; San Francisco Unified School Dist. v. Johnson (1971) 3 Cal.3d 937 , 957-958 [ 92 Cal.Rptr. 309 , 479 P.2d 669 ] [cert. den., 401 U.S. 1012 ( 28 L.Ed.2d 549 , 91 S.Ct. 1266 )]; Jackson v. Pasadena City School Dist., supra, 59 Cal.2d 876 , 881; and People ex rel. Lynch v. San Diego Unified School Dist., supra, 19 Cal.App.3d 252 , 264-265.) In San Francisco Unified School Dist. v. Johnson, supra, the court observed: “[I]t is the presence of racial isolation, not its legal underpinnings, that creates unequal education. [Citation.]” (3 Cal.3d at p. 949.)

It isxlear that this state, regardless of the interpretations given to equal protection under the Fourteenth Amendment by the highest court of the nation, may determine its own standards for evaluating equal protection under the California Constitution. (Serrano v. Priest, supra, 18 Cal.3d 728 , 762-768. Cf. Serrano v. Priest, supra, 5 Cal.3d 584 , 596, fn. 11

Reference to exhibit E reflects that it alleges that in 1974 and 1976 there were realignments of school district boundaries between Ravens-wood and Menlo Park districts which increased racial imbalance; that a pending reorganization involving Belmont Elementary District and Sequoia Union High School will have a similar effect; that the San Mateo County Committee on School District Organization has approved all of

The San Mateo respondents demurred on the ground, among others, that the allegations of the petition, as amended by the third amendment, which included the language in paragraph X quoted above, are vague and contain conclusions of law rather than ultimate facts. A separate demurrer interposed by the Ravenswood district raised the same point. In its order sustaining and overruling demurrers without leave to amend the court listed, among other grounds: “The allegations of the Third Amended Petition, specifically paragraph X and Exhibit E, are vague and contain conclusions of law rather than ultimate facts.”

On appeal petitioners contend that the trial court erred because “vagueness” is not a proper ground for demurrer, and because exhibit E only contains allegations of fact showing factual events evidencing respondents’ knowledge of segregated schools. The San Mateo respondents insist that paragraph X and the incorporated exhibit contain vague and conclusionary allegations rather than ultimate facts. They contend that petitioners have failed to allege a causal connection between the acts or omissions set forth in the exhibit, and the segregation that they seek to have eliminated or alleviated. We do not reach these issues. We accept at

B

Each side suggests that an uncritical adherence to existing precedent furnishes grounds for its position. Appellants, in reliance upon the California mandate to eliminate or alleviate segregation whenever it occurs within a district, insist that the same principle must be applied between districts without reference to whether a district by act or omission caused or contributed to the imbalance within each district. Respondents, despite the disparity between California and federal constitutional law, insist that principles enunciated in Milliken should control.

In this state the Supreme Court has consistently recognized that racial imbalance in education is itself a violation of the state Constitution regardless of cause. The evil to be corrected was phrased as follows in San Francisco Unified School Dist. v. Johnson, supra: “Our analysis begins with the classic ruling in Brown v. Board of Education (1954) 347 U.S. 483 , 495 [ 98 L.Ed. 873 , 881, 74 S.Ct. 686 , 38 A.L.R.2d 1180 ], that ‘separate educational facilities are inherently unequal.’ Evidence accumulated since 1954 has amply confirmed former Chief Justice Warren’s declaration. The 1967 report of the United States Commission on Civil Rights, ‘Racial Isolation, in the Public Schools,’ found that, all other factors being equalized, Negroes in segregated schools have lower educational achievement than Negroes in integrated schools. (Finding 8, p. 204.) The transfer of Negroes to integrated institutions, the commission noted, substantially betters their educational performance without harming the performance of white students. (See pp. 100-109.) [¶] The commission offered the following explanation: ‘The environment of schools with a substantial majority of Negro students . . . offers serious obstacles to learning. The schools are stigmatized as inferior in the community. The students often doubt their own worth, and their teachers frequently corroborate these doubts. The academic performance of their classmates is usually characterized by continuing difficulty. The children often have doubts about their chances of succeeding in a predominately white society and they typically are in school with other students who have similar doubts. They are in schools which, by virtue of both their racial and social class composition, are isolated from models of success in school.’ (P. 106.) [¶] The commission went on to note that ‘racial isolation

Turning to Milliken, we find that the majority rest their decision, like a tripod, on three legs. The principal precept was lifted from Swann v. Charlotte-Mecklenburg Bd. of Ed. (1971) 402 U.S. 1 [ 28 L.Ed.2d 554 , 91 S.Ct. 1267 ], where it had been used to approve the trial court’s prodding of a recalcitrant and defaulting school board. There a unanimous court had stated: “As with any equity case, the nature of the violation determines the scope of the remedy.” (402 U.S. at p. 16 [28 L.Ed.2d at p. 567].) In Milliken, the majority considered themselves bound by the rule that only de jure segregation could give rise to a constitutional violation; and they found that such a violation only existed within the city district itself. (See 418 U.S. at pp. 738, 745 & 754 [41 L.Ed.2d at pp. 1087, 1091 & 1096].) From the foregoing premise it was logical to conclude that the rule from Swann precluded involvement in the remedy of another district in which no constitutional violation had occurred. (Id., pp. 738, 744, 746, 754-757 [41 L.Ed.2d, pp. 1087, 1090, 1092, 1096-1098].)

It was acknowledged that any Detroit only segregation plan would lead directly to a single segregated Detroit school district overwhelmingly black in all of its schools, surrounded by a ring of suburbs and suburban school districts overwhelmingly white in composition in a state in which the racial composition was 87 percent white and 13 percent black. (418 U.S. at p. 739 [41 L.Ed.2d at p. 1088].) In an attempt to evade the effect of this factor, the majority again resorted to Swann. (See 402 U.S. at pp. 22-26 [28 L.Ed.2d at pp. 570-572].) There the court stated: “The constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole.” (402 U.S. at p. 24 [28 L.Ed.2d at p. 571]. See also Crawford v. Board of Education, supra, 17 Cal.3d 280 , 303-304; and Santa Barbara Sch. Dist. v. Superior Court, supra, 13 Cal.3d 315 , 330.) So, here, the majority sought to apply that rule to destroy the concept that racial imbalance itself was an evil. (418 U.S. at pp. 740-741 [41 L.Ed.2d at pp. 1088-1089].) The opinion of Marshall, J. points out, however, that the attempt to include the surrounding districts in the desegregation was not an attempt to disregard the caveat of Swann concerning quotas throughout all the schools. (See 418 U.S. at p. 788, fn. 1 & p. 803 [41 L.Ed.2d at pp. 1115-1116, 1124].)

The third prop of the court’s opinion is its conclusion that although there may have been some state action in creating the school districts, it could not furnish the basis for interdistrict relief, unless at the time of the

The four dissenting justices in three opinions reject the parochial approach of the majority and point out that the culprit in the case was the State of Michigan itself, and that there is nothing untoward in requiring the school districts, as creatures of the state, to eliminate or alleviate the segregation existing in one general metropolitan area. (418 U.S. at pp. 757-762 [41 L.Ed.2d at pp. 1098-1101], Douglas, J.; id., pp. 762-780 [41 L.Ed.2d, pp. 1101-1111], White, J. with Douglas, Brennan & Marshall; id., pp. 781-815 [41 L.Ed.2d, pp. 1112-1131], Marshall, J., with Douglas, Brennan & White.) The Michigan educational system is unitary, maintained and supported by the Legislature, and under the general supervision of the State Board of Education. (See 418 U.S. at pp. 758, 768-772 and 785-786 & 790-797 [41 L.Ed.2d at pp. 1099, 1104-1107 and 1114-1115 & 1117-1121].) Both Justices White and Marshall urge that the administrative difficulties can be met at the local scene by state action and are not insuperable as suggested by the majority. (418 U.S. at pp. 767-770 and 808-812 [41 L.Ed.2d at pp. 1103-1105 and 1127-1129].) As Justice White points out, parental and local concerns, when not in conflict with the Constitution, can be considered in any plan. (418 U.S. at pp. 778-779 [41 L.Ed.2d at pp. 1110-1111].) Both opinions stress that the state’s control over school district boundaries and any local establishment of such boundaries is subject to alteration to redress constitutional boundaries in the same manner as voting districts were ordered revised in the reapportionment cases. (418 U.S. at pp. 777-778 and 807-808 [41 L.Ed.2d at pp. 1109-1110 and 1126-1127], adverting to Reynolds v. Sims (1964) 377 U.S. 533 , 575 [ 12 L.Ed.2d 506 , 535, 84 S.Ct. 1362 ]. See also Silver v. Brown (1965) 63 Cal.2d 270 [ 46 Cal.Rptr. 308 , 405 P.2d 132 ].)

When these opinions are juxtaposed and compared with existing California constitutional law, we must reject respondents’ contention that

In Serrano II (Serrano v. Priest, supra, 18 Cal.3d 728 ) our Supreme Court rejected the overtures of Rodriguez and adhered to its conclusion that education was a fundamental interest, and that there was a failure to show a compelling interest for the retention of the existing school financing system, thereby rendering it discriminatory under the provisions of the state Constitution. (Id., at pp. 762-763.) The court concluded: “Article IX, section 14 of the state Constitution clearly establishes that it is the Legislature which bears the ultimate responsibility for establishing school districts and their boundaries. By its exercise of this power, and by the concurrent exercise of its powers under article XIII, section 21 to provide for a school financing mechanism based upon county levies of school district taxes, it has created a system whereby disparities in assessed valuation per ADA among the various school districts result in disparities in the educational opportunity available to the students within such districts. Thus, as we said in Serrano I, ‘[governmental action drew the school district boundaiy lines, thus determining how much local wealth each district would contain [citations].’ (5 Cal.3d at p. 603.) It is that action, which we reiterate is the product of legislative determinations, that we today hold to be in violation of our state provisions guaranteeing equal protection of the laws.” (Id., at pp. 772-773, fn. omitted.)

So here governmental action has drawn the school district lines. It is these lines which have determined the imbalance questioned in these proceedings. If, as alleged, those lines serve to create or maintain an imbalance which deprives minority groups of a right to equal educational opportunities, free from isolation and segregation, there has been a violation of our state provisions guaranteeing equal protection of the law.

In reliance on Kramer v. Union School District (1969) 395 U.S. 621 [ 23 L.Ed.2d 583 , 89 S.Ct. 1886 ], the opinion in Milliken v. Bradley, supra, noted as follows: “Since the Court has held that a resident of a school district has a fundamental right protected by the Federal Constitution to vote in a district election, it would seem incongruous to disparage the importance of the school district in a different context. [Citation.] While the district there involved was located in New York none of the facts in our possession suggest [sic] that the relation of school districts to the State is significantly different in New York from that in Michigan.” ( 418 U.S. 717 , 746, fn. 21 [ 41 L.Ed.2d 1069 , 1092].) The San Mateo respondents and Ravenswood district suggest on the basis of the foregoing that judicial intervention should be withheld, at least in the absence of any show of wrongdoing by any of the districts involved. They rely on a precedent which interprets the federal de jure rule of interdistrict segregation. In Evans v. Buchanan, supra, 582 F.2d 750 , the court, in reviewing the basic legal precepts to be applied, stated: “A court is not at liberty to issue orders merely because it believes they will produce a result which the court finds desirable. . . . The remedy for a constitutional violation may not be designed to eliminate arguably undesirable states of affairs caused by purely private conduct (de facto segregation) or by state conduct which has in it no element of racial discrimination.” (Id., pp. 757-758.)

In fact, Evans and other cases addressing the question of interdistrict de jure segregation make it clear that political boundaries and franchise rights must yield to the power of the courts to correct constitutional violations. (See Milliken v. Bradley, supra, 418 U.S. 717 , 744 [ 41 L.Ed.2d 1069 , 1090-1091]; Evans v. Buchanan, supra, 582 F.2d

On full consideration of the renewed arguments of respondents we adhere to the view that when there is a violation of the state constitutional right to be free of de facto segregation, the state courts have the same powers they have to correct constitutional violations arising from discrimination in voting rights (Silver v. Brown, supra, 63 Cal.2d 270 ), and discrimination in school financing (Serrano I and Serrano II, supra). The federal precedents support the view that where there is a recognizable violation, the existence of political subdivisions should not preclude relief.

V

In concluding, we stress that this decision arises upon the pleadings now before the court. The posture of the case is such that the sole ground for denying relief to the petitioners is the respondents’ claim to rest on established school district boundaries, as barriers to the alleviation of alleged segregation in the schools of adjacent districts. Under the enlightened decisions of the Supreme Court of this state construing the California Constitution it is the existence of segregation, not its cause, which gives rise to a constitutional right to relief. The pupil who is discriminated against today because of the maintenance under state law of preexisting school district lines is as entitled to relief as the pupil who finds himself in the same position because of intradistrict assignment policies or because of the discriminatory reorganization of district lines.

We caution, however, that if there is cause to take remedial action, such action must focus on providing equal educational opportunity for the minority race. It would be idle to furnish absolute vindication of equal opportunity through the elimination of all racial and ethnic imbalance, only to create an environment which lessened the educational opportunities for those whose constitutional rights we protect. Experience in other communities had raised questions concerning the techniques to be used to remedy segregation (see fn. 16 above.) Although rancor and prejudice cannot be given official sanction through the ballot box, the effect of a hostile environment on the education of those exposed to it is a consideration which should not be overlooked.

The judgment of the lower court must be reversed, with leave to petitioners to amend as suggested above (parts II and IV) to the end that after answers are filed the court can determine the issues last set forth above.

In considering whether there is interdistrict segregation, and, as well, if it finds it does exist, in approving a remedy, the trial court must be guided by established principles. The provisions of former section 1009.5 of the Education Code have been continued in sections 35350 and 72209. The provisions, “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,” have been

Section 35351 provides: “No public school student shall, because of his race, creed, or color, be assigned to or be required to attend a particular school.” (See also § 72210.) This echoes former section 1009.6. Those provisions, as contained in an initiative measure, were held to be unconstitutional in Santa Barbara Sch. Dist. v. Superior Court, supra, 13 Cal.3d 315 (see pp. 322-328). At the same time, however, the court upheld so much of the initiative measure as repealed sections of the Education Code (former §§ 5002 & 5003) which directed school districts to “eliminate racial and ethnic imbalance in pupil enrollment,” and specified certain factors to be considered in developing plans to achieve racial balance, and, as well, repealed administrative guidelines which had been adopted to implement those sections. In so ruling the court stated: “[S]ince racial balance determined according to a precise statutory formula is not a constitutional prerequisite but a matter of state policy, the people of California through the initiative process, have the power to declare state policy. The repealing provisions of Proposition 21 can conceivably be interpreted as an expression by the people of this state of their preference for a ‘neighborhood school policy.’ (See Keyes v. School Dist. No. 1, Denver, Colo., supra, 413 U.S. at p. 206 [37 L.Ed.2d at p. 562].) We deem it unnecessary to the resolution of the issues now before us to determine precisely what was the intention of the electorate in this respect and accordingly intimate no views on the subject. We merely conclude that since a policy in favor of neighborhood schools is a reasonably conceivable one and since siich an expression of policy can in no way limit or affect the constitutional obligations of school districts, the repealing provisions found in sections 2, 3 and 4 cannot be struck down as constitutionally impermissible.” (13 Cal.3d at p. 330.)

The foregoing concept echoes Jackson v. Pasadena City School Dist., supra, where the court observed: “School authorities, of course, are not required to attain an exact apportionment of Negroes among the schools, and consideration must be given to the various factors in each case, including the practical necessities of governmental operation. For example, consideration should be given, on the one hand, to the degree of racial imbalance in the particular school and the extent to which it affects the opportunity for education and, on the other hand, to such matters as the difficulty and effectiveness of revising school boundaries so as to