Opinion
Opinions on pages 694-735 omitted. [*]
For Opinion on Hearing, see 130 Cal.Rptr. 744, 551 P.2d 48.
[119 Cal.Rptr. 786]Long & Levit, Los Angeles, for defendants and appellants.
Nathaniel S. Colley and Nancy B. Rearden, Sacramento, for plaintiffs and respondents.
OPINION
Assigned by Chairman of the Judicial Council.
This is a school desegregation case. On April 14, 1972, petitioners, National Association For the Advancement of Colored People, often referred to as the NAACP, and certain Black American students of schools in the San Bernardino City Unified School District, filed a petition for writ of mandate seeking an order that respondents 'refrain from doing any act or thing which will have the effect of continuing the racial segregation and racial imbalance' in the said district and ordering said district to formulate and adopt a plan immediately 'for the elimination or alleviation of racial segregation and racial imbalance in said schools.'
The principal charging paragraphs recite 'that student, faculty and administrative imbalance exists in at least forty-two of the public schools of said district as such imbalance is defined in Title 5, California Administrative Code' and such schools 'are in fact segregated by race in so far as student population, teacher and staff assignments are concerned' (paragraph V); that such racial imbalance and racial segregation 'results in a denial of equal protection of the laws and a denial of equal educational opportunities in the public schools, all in violation of the 14th Amendment to the United States Constitution and the laws of the State of California' (paragraph IX); and that the respondent school authorities 'have an affirmative mandatory duty to take such steps as may be necessary and feasible to forthwith prevent, eliminate, or alleviate said racial imbalance in its schools, regardless of the cause of such imbalance' (paragraph X).
This cause came on for trial in the superior court on June 7, 1972. The trial lasted until June 13, 1972, and on June 27, 1972 the court entered its interim order requiring respondent 'to prepare and submit to the State Board of Education a plan or plans for the elimination of such racial imbalance as may exist in the schools of respondent district, with a proposed time table for the elimination of such plan or plans.' This reference of the plan to the State Board of Education was in accordance with Education Code sections 5002 and 5003.
A desegregation plan was adopted by respondent board on October 26, 1972, and submitted to the State Board of Education October 27, 1972. This plan ultimately became known in these proceedings as Plan B. Petitioners filed a motion for judgment and to strike said plan which came on for hearing on January 9, 1973.
[119 Cal.Rptr. 787]In the interim between the filing of said plan and the hearing of said motion, and on November 7, 1972, the voters of California adopted Proposition 21 commonly referred to as the Wakefield Amendment. This amendment will be discussed later in this opinion.
At the hearing on January 9, 1973, the court on its own motion acting under Evidence Code sections 730-733 appointed four expert witnesses 'to study the facts of the case and to be the Court's witnesses as to their opinions.' A further hearing was held on May 7, 1973, at which time pursuant to stipulation said reports were admitted into evidence to be considered 'the same as if testified to.' On May 7 and 8 each of said expert witnesses was further examined and the cause was then submitted. On May 18, 1973, the trial judge gave notice of his intended decision. The notice of intended decision contained a lengthy recital of the facts which the court intended to find. The judge provided that if findings of fact were requested by the 10th day of July 1973, hearing on said findings should be held on that date.
On said date objections to the intended decision as set forth by the trial judge on May 18, 1973, and the findings of fact and conclusions of law were argued. At this hearing additional testimony was taken on the adoption and meaning of the Wakefield Amendment. Subsequent to this hearing the court filed an amended notice of intended decision which contained basically the same recital of facts which the judge intended to find with a few elaborations.
On September 20, 1973, the court adopted findings of fact, a copy of which is attached to this opinion as Appendix A, and entered judgment for the petitioners, a copy of which is attached to this opinion as Appendix B.
From this judgment the San Bernardino City Unified School District and the San Bernardino Board of Education appealed.
Oral argument in this matter was heard by this court on January 7, 1975. On January 15, 1975, the Supreme Court of California handed down its opinion in Santa Barbara Sch. Dist. v. Superior Court, 13 Cal.3d 315, 118 Cal.Rptr. 637, 530 P.2d 605. We solicited and received letter comments on that case from both sides.
That case determined that Proposition 21 (the Wakefield Amendment) was unconstitutional insofar as it adopted Education Code section 1009.6, but was valid insofar as it repealed Education Code sections 5002 and 5003 and Administrative Code sections 14020 and 14021. The result of these holdings is that desegregation of schools becomes a question solely for local school districts guided only by constitutional restrictions.
Which section reads: 'No public school student shall, because of his race, creed, or color, be assigned to or be required to attend a particular school.'
We must now turn to the question, what are those constitutional requirements.
From the allegations of paragraph X above quoted and from the points and authorities on file it is clear that petitioners predicated their action upon the theory that the respondents' duties under the Constitution are the same whether any existing segregation was de jure or de facto. Certain language in Jackson v. Pasadena City School Dist. (1963) 59 Cal.2d 876, 31 Cal.Rptr. 606, 382 P.2d 878 and San Francisco Unified School Dist v. Johnson (1971) 3 Cal.3d 937, 92 Cal.Rptr. 309, 479 P.2d 669 at first blush appears to lend support for this position. However, Jackson involved [119 Cal.Rptr. 788] a finding of de jure segregation and the language used must be viewed in that light, while, in spite of some broad language, Johnson in fact recognizes the distinction.
It is unfortunate that the term de facto segregation was ever allowed to creep into the cases and literature in this field. The word segregate suggests an active force setting some person or thing apart from others. The term segregation thus would be more properly limited solely to the situation now described as de jure segregation. What is described as de facto segregation could then be referred to as racial imbalance. However, the use of the terms de jure and de facto segregation is too firmly established to ignore. Our attempt to now eliminate their use at this time would only result in serious confusion.
In Serrano the court based its analysis of the issues raised under both the state and federal Constitution. In footnote 11, page 596, 96 Cal.Rptr. page 609, 487 P.2d page 1249, the court stated: 'The complaint also alleges that the financing system violates article I, sections 11 and 21, of the California Constitution. Section 11 provides: 'All laws of a general nature shall have a uniform operation.' Section 21 states: 'No special privileges or immunities shall ever be granted which may not be altered, revoked, or repealed by the Legislature; nor shall any citizen, or class of citizens, be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens.' We have construed these provisions as 'substantially the equivalent' of the equal protection clause of the Fourteenth Amendment to the federal Constitution. (Dept. of Mental Hygiene v. Kirchner (1965) 62 Cal.2d 586, 588, 43 Cal.Rptr. 329, 400 P.2d 321.) Consequently, our analysis of plaintiffs' federal equal protection contention is also applicable to their claim under these state constitutional provisions.'
The Santa Barbara cases while holding that section 1009.6 as applied to school districts manifesting either de jure or de facto segregation is unconstitutional makes no attempt to otherwise abolish the distinction.
Late cases make it clear that there is a pronounced difference between the two affecting the question of constitutional rights. (People ex rel Lynch v. San Diego School Dist. (1971) 19 Cal.App.3d 252, 96 Cal.Rptr. 658; Keyes v. School District No. 1 (Denver, Colo.) (1973) 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548; Johnson v. San Francisco Unified School District (1974) 9 Cir., 500 F.2d 349.) The latest expression on the subject by the Supreme Court of the United States is found in Milliken v. Bradley (1974) 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 wherein it is stated that the suggestion that schools which have a majority of Negro students are not desegregated whatever the racial make-up of the school district's population and however neutrally the district lines have been drawn and administered finds no support in the Supreme Court's prior cases. (See fn. 22, 418 U.S. 747, 94 S.Ct. 3128, 41 L.Ed.2d 1093.)
In the same case Justice White writing for the minority consisting of himself and Justices Brennan, Douglas and Marshall states, 'The Court has made it clear that the achievement of any particular degree of racial balance in the school system is not required by the Constitution; nor may it be the primary focus of a court in devising an acceptable remedy for de jure segregation.' (418 U.S. 763, 94 S.Ct. 31, 36, 41 L.Ed.2d 1102.)
The chief distinguishing factor between de facto and de jure segregation is intent. (Keyes v. School District No. 1 (Denver, Colo.), supra 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548; Davis v. School District of City of Pontiac, Inc. (6 Cir. 1971) 443 F.2d 573; Johnson v. San Francisco Unified School District, supra, 500 F.2d 349.) As stated in Johnson, a finding of unconstitutional (or de jure) segregation requires a determination that the school authorities have intentionally discriminated against minority students by practicing a deliberate policy of segregation.
In the Santa Barbara cases the California Supreme Court quotes the definition of de jure segregation from Keyes v. School District No. 1, supra, 413 U.S. 189 at page 205, 93 S.Ct. 2686 at page 2696, 37 L.Ed.2d 548 as a 'current condition of segregation resulting from intentional state action.' As it is now held that in California the local school authorities are the guardians of state action in this regard we can paraphrase the Keyes definition to read de jure segregation is a current condition of segregation resulting from intentional local school board action. It is, however, to be kept in mind that if the actions of local school authorities in the past were to any degree motivated by segregative intent and the segregation resulting from those actions continues to exist the fact of remoteness in time does not make the local authorities' actions any less 'intentional.'
Where there has been a state maintained dual school system or where de jure segregation has resulted from a deliberate plan and intent of state or school authorities the constitutional mandate is clear. Under such conditions school boards are charged with taking all necessary and feasible steps to create a unitary school system from which racial discrimination is eliminated root and branch; and to come up with a plan or plans to that end which promise realistically to work and to work now. (Green v. School Board of New Kent County (1968) 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716; Swann v. Charlotte-Mecklenberg Board of Education (1971) 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554.) To carry out this mandate local boards may assign students to schools beyond a reasonable walking distance from [119 Cal.Rptr. 789] their homes. Any law prohibiting this method of curing de jure segregation is invalid. (San Francisco Unified School Dist. v. Johnson, supra, 3 Cal.3d 937, 948-949, 92 Cal.Rptr. 309, 479 P.2d 669; Santa Barbara School District v. Superior Court of Santa Barbara County (Mullin), supra.) Where racially mandated de jure segregation has existed mandatory remedies may be required to cure the evil. (Swann v. Charlotte-Mecklenberg Board of Education, supra, 402 U.S. 1, 18-19, 91 S.Ct. 1267, 28 L.Ed.2d 554.) However, even in such cases constitutional desegregation does not mean that every school in the system must reflect the racial composition of that school system as a whole. Even the existence of a small number of one race or virtually one race schools is not of itself the mark of a system which still practices segregation by law. (Swann v. Charlotte-Mecklenberg Board of Education, supra, 402 U.S. 1, 26, 91 S.Ct. 1267, 28 L.Ed.2d 554; People ex rel Lynch v. San Diego School Dist., supra, 19 Cal.App.3d 252, 266, 96 Cal.Rptr. 658.)
As our Supreme Court in the Santa Barbara cases indicates racial balance determined according to a precise mathematical formula is not a constitutional prerequisite.
Where the racial imbalance is not motivated by state action undertaken for the purpose of effecting segregation on the basis of race, i. e., where any racial imbalance not caused by de jure segregation exists, the constitutional requirements on a school board are materially less. Affirmative action is required only upon a positive showing that the racial imbalance actually denies the minority group equal educational opportunities. (People ex rel. Lynch v. San Diego School Dist., supra, 19 Cal.App.3d 252, 263-265, 96 Cal.Rptr. 658.) Racial imbalance of itself does not necessarily indicate a denial of equal opportunity and places no burden upon the board to undertake affirmative action. In these cases voluntary plans and methods may well be adequate.
Based on the foregoing principles the findings herein are insufficient to support the issuance of a writ of mandate based upon a violation of constitutional requirements. There is no finding that the racial imbalance in the San Bernardino City School system was or is the result of intentional action practiced against the minority students for the purpose of imposing upon them racial segregation. That is to say that there is no holding of de jure segregation, since the finding of intent requisite to such a determination was not made. Lacking such a finding there is no constitutionally imposed duty on the school board to take affirmative steps to eliminate racial imbalance unless such racial imbalance is in fact depriving said minority students of an equal educational opportunity. The trial court did not hold that such was the fact.
At the trial considerable emphasis was placed upon the resolution of the respondent school board adopted March 2, 1972, instructing the superintendent to exclude from his integration plans any proposal for mandatory busing. Such a restriction does not necessarily indicate an intent to discriminate. While it is true that assignment of students to schools not within walking distance of their homes is a proper method to be used by local school boards in attacking segregation and such boards cannot be deprived of the use of this method by legislative enactment, mandatory busing once felt to be the panacea for segregation, no longer has such universal support. As pointed out by Justice White in his dissent in Milliken v. Bradley, supra, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 at page 1102, plans requiring more and more time on buses and more and more dollars diverted to transportation systems are becoming more and more suspect. California Education Code section 1009.5 which provides '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,' was held constitutional in San Francisco Unified School Dist. v. Johnson, supra, 3 Cal.3d 937, 92 [119 Cal.Rptr. 790] Cal.Rptr. 309, 479 P.2d 669, so long as not interpreted as prohibiting assignment of pupils to schools not within walking distance. There is no indication or finding that the resolution of the board of San Bernardino Unified School District passed on March 2, 1972, was a subterfuge to accomplish this end. The San Bernardino school board has the right to first explore other means of solving the segregation problems before resorting to mandatory busing.
Most of the provisions of the peremptory writ of mandate ordered herein called for action in the school year 1973-1974 or at least by September 1974. Such dates have now passed. However, anything done under the prodding of these requirements need not be undone. (Johnson v. San Francisco Unified School District, supra, 500 F.2d 349.) In fact, any reversal of a program looking to the elimination of racial imbalance would be suspect. The respondent school board would be required to support such a change by appropriate educational, or compelling financial reasons completely divorced from racial considerations or risk a finding that what had previously been merely racial imbalance had now by such action become de jure segregation.
The judgment is reversed in all particulars except insofar as it orders payment of fees to the court's witnesses which order for payment is affirmed. The cause is remanded for further proceedings as hereinafter set forth.
The trial court is instructed to make findings on the following issues:
(1) Was the racial imbalance in the schools of the San Bernardino Unified School District the result of a deliberate intent on the part of the governing board to practice a policy of racial segregation?
(2) Does such racial imbalance as may now exist in the San Bernardino schools in fact deprive the minority students of an equal educational opportunity?
In order to enable it to do so the trial court may take such additional evidence as it deems necessary or desirable.
If either of said findings is in the affirmative the trial court may reinstate its prior judgment with appropriate modifications as to the dates of required actions and eliminating all references to Education Code sections 5002 and 5003, now repealed, and also eliminating any requirement that a specific mathematic formula of racial balance must be reached by a certain date as a test of legal desegregation.
If both of said findings are in the negative the trial court shall deny the application for peremptory writ of mandate with out prejudice to the right of petitioners to again seek such a peremptory writ should any future action of local school authorities reverse any steps now being taken to improve racial balance in the San Bernardino city schools or convert de facto segregation into de jure.
GARDNER, P. J., concurs.
APPENDIX 'A'
FINDINGS OF FACT
1. Each of the persons designated in the caption to the Petition for Writ of Mandate as a minor, is a minor, and the persons designated as their guardians ad litem are in fact such guardians ad litem for all purposes in this action.
2. Petitioner National Association for the Advancement of Colored People is a membership corporation, organized and existing under and by virtue of the laws of the State of New York. Said petitioner is a national civil rights organization with a membership of approximately 500,000 members and affiliates in each of the 50 states. Said petitioner maintains its Western Regional Office in San Francisco, California, and has a branch or chapter in San Bernardino, California. The primary purpose of said petitioner is to strive through all lawful means to improve the educational, civil and economical status of Negroes in American life. Said petitioner is authorized to do business in the State of California within the limits of its purposes.
3. Respondents San Bernardino City Unified School District and San Bernardino [119 Cal.Rptr. 791] Board of Education are and were at all times mentioned herein bodies politic, duly organized and existing under the laws of this State and under Article XI of the San Bernardino City Charter.
4. Respondents School District and Board of Education are responsible for the governing, operation and maintenance of all of the public, elementary, junior high and senior high schools within said district.
5. Each of the minor petitioners is a black American citizen and is a member of a class or ethnic group of persons commonly known and referred to as Negroes. The number of persons constituting such class or group is so large that it is not possible to bring each of them before the Court as an individually named petitioner. The interests of each member with respect to the facts and law herein are common to the class, and the named petitioners herein can and will adequately represent the entire class of petitioners.
6. Respondent School District is a public unified school district having six senior high schools, ten junior high schools and thirty-seven elementary schools.
7. The total student population within the District as of 9 November 1972 was 34,228. This figure remains essentially the same as of the date of these Findings.
8. The total student population composition by racial and ethnic background is as follows:
Spanish Surname Black Oriental American Indian Caucasian --------------- ----- -------- --------------- --------- 20.8% 15.5% .6% .2% 62.9%9. The total minority student population is 37.1% of the total student census, and the majority Caucasian student percentage is 62.9%.
10. There is no racial or ethnic imbalance in the six high schools.
11. The racial and ethnic balance of the students in the elementary schools is set forth in Table I, attached.
12. The racial and ethnic balance of the student population in 1966 of the elementary schools then operating was as set forth in Table II, attached.
13. In 1972 the racial and ethnic balance of the student population of the junior high schools was:
Junior High Minority Majority ------------- -------- -------- Arrowview 46% 59% Curtis 31% 69% Del Vallejo 27% 73% Franklin 98% 2% Fremont 53% 47% Golden Valley 24% 76% Highland 20% 80% Richardson 78% 22% Serrano 19% 81% Shandin Hills 35% 65% Anderson TMR 57% 43% Opp. School 43% 57%14. In 1966 the racial and ethnic balance of the student population of the junior high schools was:
Junior High Minority Majority ---------------------- --------------------- --------------------- Arrowview 16% 84% Del Vallejo 3% 96% Golden Valley 2.5% 97.5% Highland 5% 95% Fremont 40% 60% Richardson 72% 27% *Sturges 58% 42% (Sturges has subsequently been closed and merged with Arrowview) Franklin 97.6% 2.4%15. The residential pattern classified into racial and ethnic characteristics was well defined within the District. The heaviest concentration of minority families resided in two areas: (1) west of the Barstow Freeway, and (2) both east and west of the Barstow Freeway and in the southwest portion of the District. Further, the area north of the Santa Fe tracks and east of the Barstow Freeway contains mostly black family residences. These two boundaries form physical barriers not easily transversed. Most of the Spanish-American families reside in the south and west portion of the District. The areas in the far east and northeast of the District contain residences of Caucasian families.
16. The existence of segregated schools has been well known to respondent Board since 1966. Such knowledge was imparted to it in numerous reports from that date, originating both in governmental and in private reports. Respondent Board has authorized numerous studies for plans of desegregation and pursuant thereto has taken the following steps to alleviate or change [119 Cal.Rptr. 792] the racial characteristic of the elementary and junior high schools:
(a) In 1966, the Board allowed voluntary transfer of minority students to other schools on a space-permitting policy. In effect, if the space is available to the transferee, the student then is allowed to transfer. As a result of such a policy in 1966, the student participation program was as follows:
Year $c2 mNumber of Students ------- ----------------------- 1966"67 219 1967"68 400 1968"69 1490 1969"70 2026 1970"71 1776 1971"72 1554 1972"73 1416A partial explanation for the decline in the controlled open-enrollment program participation was the mandatory assignment of students from Allessandro and Mt. Vernon Schools to other less segregated schools while those were under reconstruction. It is the Court's understanding of the present plan that the District intends to reassign those students back to these schools upon the completion of reconstruction. The participation of the students in the controlled open-enrollment program consisted at the most of little more than one-fourth of the students in segregated minority schools.
(b) A resolution was adopted by respondent Board on 2 March 1972 as follows:
'Upon motion of Mr. Morris, seconded by Mr. Anton and approved by the affirmative vote of Simpson, Anton, Lippitt, Miller, Morris, and Woods (Noes: None) (Abstained: Jordan) the following was adopted:
BE IT RESOLVED that the Board of Education reaffirm its commitment to the principles and the ideals of integration;
BE IT FURTHER RESOLVED that, because of financial limitations it is impossible to support a large scale transportation program necessary to racially balance schools at this time, the Superintendent be instructed to limit his integration plan to those steps which may be taken at this time excluding any proposal for mandatory busing;
BE IT FURTHER RESOLVED that the existing school boundaries and programs designed to achieve integration be maintained, that programs of human relations, integration not requiring involuntary busing, community involvement, inservice training, equal educational opportunity to improve the instructional programs, and other ideas not requiring mandatory busing be provided for the Board's consideration in the March 16 report.'
(c) A plan was proposed to the Board on 16 March 1972, based upon a planning-unit concept which encouraged voluntary cultural and racial interchanges between students, teachers, staff and parents.
(d) A plan embodying these concepts on a voluntary basis and taken from the March 1972 proposals was adopted by the Board on 26 October 1972 and submitted to the Court 2 November 1972, as the plan which the Board had submitted to the State Board of Education in compliance with §§ 5002 and 5003 of the Education Code and in further compliance with the minute order of this Court. Said plan is referred to herein as Plan B.
(e) In the fall of 1972, the School Board District modified the controlled open-enrollment program so as to allow voluntary transfers between the schools within the planning-unit group.
17. The planning-unit concept utilizes the grouping of elementary schools within a planning unit so that those elementary schools will feed to one junior high school, and the total student population within that planning unit comprising both the elementary schools and the junior high school, when arranged, will achieve a racial and ethnic balance pursuant to one of the definitions of segregation as set forth in Finding 22 below. It is evident, however, that while the racial balance in the planning unit will achieve an integrated balance, the schools themselves may remain racially imbalanced. The plan envisions voluntary [119 Cal.Rptr. 793] exchanges between students during a limited portion of classroom hours and encourages voluntary participation in extra-curricular activities, and attempts to engage voluntary participation between parents, staff, and students, both in planning these activities and setting forth plans for voluntary integration within the planning-unit group. It envisions that each planning-unit council, composed of parents, teachers, and staff, will set reasonable goals for voluntary integration within a period of one year.
18. The respondent's efforts at desegregation have always been, and under the plans submitted have been, on the basis of voluntary participation. Mandatory assignment and mandatory busing is prohibited for the purpose of achieving racial balance.
19. The District has made, on a funds available basis, concentrated efforts in some of the more heavily concentrated minority schools to increase the educational offerings in order to improve basic skills within the minority student groups with the ultimate goal of having these students in these schools achieve acceptable learning levels.
20. The School District has severe financial restrictions for innovative programs placed upon it by reason of its low tax base, and has reached its legal financial limits of expenditures.
21. The respondents have placed a low financial priority at any efforts to achieve integration.
22. There were three definitions of segregation used throughout the course of the trial: The first one is the definition as set forth in Title V, Article 3, Section 1421, of the Administration Code, which states as follows:
'For the purpose of these regulations, a racial and ethnic imbalance is indicated in a school if the percentage of pupils of one or more ethnic group composition differs by 15 percentage points from that in all schools of the District.'
The second definition uses the same terminology but substitutes the figure 20% for the figure 15%. The third definition was that definition proposed in the unpublished guidelines suggested for adoption by the State Board under Sections 5002 and 5003 of the Education Code and is as follows:
'For the purpose of these regulations, a racial or ethnic imbalance is indicated in a school if the percentage of pupils of one or more racial or ethnic group differs significantly from the district-wide percentage. A significant difference exists when the school percentage of any racial or ethnic group, including the racial group in the district, is less than one-half or more than double the district-wide percentage of the same group.' Using all three of these definitions, certain schools are either 'imbalanced minority or 'imbalanced majority', as shown on Table III attached hereto.
23. Under the planning-unit concept the distance from the elementary schools to the junior high school within each planning unit is within acceptable, reasonable, and feasible limits, in all cases being approximately six miles or less, except in the planning unit containing Serrano Junior High School wherein the maximum distance is 8.9 miles.
24. Voluntary desegregation, either under the controlled open-enrollment plan allowing transfers throughout the district, or as modified, allowing transfers to remain within the planning unit, cannot and will not achieve ultimate desegregation under any of the definitions of segregation.
25. Three plans have been proposed to the Board. These plans have been referred to throughout the hearing as Plans A, B and C; they are described in that report of filing on file herein, and are further described in Exhibits 10, 11, 12 and 13. During the hearing of this matter an additional plan was proposed by the Court's witness Patricia Anderson, (Exhibit 15), which would in essence redraw the attendance boundaries of both the elementary and junior high schools in such a manner as to achieve racial balance within definition No. 1.
[119 Cal.Rptr. 794]26. Either alternative in Plan C is entirely unacceptable to achieve desegregation, because it would mandate reassignment of children in six schools and would leave all other segregated schools unaffected; or in the other alternative plan given in Plan C, it would envision the reassignment of all elementary children in planning units 1, 2, 4 and 5 to balance educational settings, thus adding four more schools in the racially-balanced school list but leaving still unbalanced five schools.
27. Alternate Plan B, while having great value in enlisting community support in achieving the ultimate goal of desegregation, is fatally defective in not having realistic Board support; in failing to provide such coordinating effort on the part of the staff to achieve the goals set forth in the plan; and is subject to the greater objection that the entire plan is voluntary and is incapable of desegregation without some mandatory provisions.
28. Plan A, in requiring the planning units to devise their own plans of desegregation, has the same advantage of involving the community, but it does not set sufficient time goals to achieve full desegregation and has little mandatory provisions for financial support of the planning units. It does not specifically set forth a plan for the ultimate response of the Board in the event that voluntary efforts failed, except for the provisions that the Board would 'accept that responsibility' in the spring of 1974 if the voluntary efforts failed.
29. The plan as advanced by the Court's expert witness, Patricia Anderson, indicates, upon the information available, that the redrawing of the District attendance boundaries of both elementary and junior high schools is feasible and is reasonable. It is defective in that not all of the expectations might be practical until and unless there is sufficient information developed by the District as to the exact residence address of each pupil within the school district. However, this is not an unreasonable method, given the composition of the District, the location of the schools, and the demands upon transportation; and it is a viable solution which would not be too disruptive in its student relocation.
30. There are legal restrictions placed upon any plans of desegregation, which restrictions limit such plans and remedies to reasonableness, feasibility, practicality and effectiveness in their application. These restrictions are set forth in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554, and Jackson v. Pasadena City School District, 59 Cal.2d 876, 31 Cal.Rptr. 606, 382 P.2d 878. Plans A and B as described in the testimony and exhibits in this case are acceptable as a vehicle only toward the ultimate goal of desegregation if such plans are relieved of their voluntary features. Such plans must contain mandatory requirements that all students in each planning unit be assigned as part of their curriculum of study a specified block of time within the school-attendance period of being physically present at any of the other schools within the planning unit so as to achieve racial and ethnic balance during such block of time that the student is in such schools. With such mandatory requirements these plans would meet the dictates of the legal restrictions set forth above. This block of time must be a significant portion of their attendance at their assigned home school. These plans will remain effective if the community remains involved in planning for the ultimate desegregation of the district. These plans have the advantage of the previous work done by the Board and staff in conceiving the planning unit and these plans would be able to utilize the prior community involvement which has been generated since the implementation of Plan B. This plan should be limited and used only as a transitional desegregation tool for the School Year 1973-74 and in anticipation for the ultimate plan to be adopted for the Fall Session of 1974.
31. The Court makes no finding that desegregation would not be achieved by the use of the planning-unit concept as boundaries within which pupils may be assigned to achieve desegregation, it being assumed [119 Cal.Rptr. 795] that the testimony is correct that the racial balance determined by the respondent staff in drawing the planning-unit boundaries envisions a racial balance within an acceptable limit either as defined by Title V or any other reasonable definition used in these Findings.
32. The Court makes no finding that any plan which would abandon the planning-unit concept boundaries as geographical limitations for unit desegregation, but which would redraw present school boundaries as suggested by the Court's expert witness, is unacceptable if feasible and if reasonable.
33. The Court intends only to require that any desegregation plans be reasonable, effective and feasible, and does not intend to mandate the District as to how desegregation is to be achieved, except as set forth below.
TABLE I
PERCENTAGES OF CHILDREN OF MINORITY AND MAJORITY ETHNIC BACKGROUNDS ELEMENTARY
SCHOOLS--1972"73 (Minority % Compared with 1966) Elementary School Minority % Majority % 1966 1972"73 (1972"73) -------------------------------- ------------------------------ ------------- Alessandro 99.1 97 3 Arrowhead 2.2 30 70 Barton 1.6 28 72 Belvedere .4 29 71 Bradley 12.6 36 64 Burbank 74.1 79 21 California 96.3 97 3 Cole 8.3 26 74 Cypress 10.6 24 76 Davidson 9.8 21 79 Del Rosa 6.3 16 84 Eliot 9.2 Emmerton 16 84 Fairfax 3.8 20 79 Highland Pacific 22 78 Hillside .9 12 88 Hunt 3.2 22 78 Kendall 1.5 24 76 Kimbark 43 57 Lankershim 34 66 Lincoln 14.0 46 54 Lytle Creek 38.5 68 32 Marshall .4 18 82 Mitchell 1.2 14 86 Monterey 17.0 35 65 Mill 96.7 Mt. Vernon 99.2 99 1 Muscott 95.5 92 8 Muscoy 38.7 58 42 Newmark 1.5 16 84 North Park 63 32 Oehl 9 91 Parkside 1.3 12 88 Ramona 98.3 Riley 45.6 73 27 Rio Vista 97.8 99 1 Roosevelt 95.5 96 4 Sterling 2.8 18 82 Thompson 26 74 Urbita 70.3 76 24 Vermont 10.4 27 73 Warm Springs 5.3 23 77 Wilson 5.5 19 81 *Anderson TMR 57 43 *Carmack OH 41 59 * Special schools for trainable mentally retarded and orthopedically Note handicapped students.TABLE II
PERCENTAGES OF CHILDREN OF MINORITY AND MAJORITY ETHNIC BACKGROUNDS IN ELEMENTARY SCHOOLS--JANUARY, 1966
Anglo Schools Minority % Majority % ----------------------------------- ------------------- --------------------- Arrowhead 2.2 97.3 Barton 1.6 98.2 Belvedere .4 99.0 Bradley 12.6 85.7 Cajon 4.7 91.7 Cole 8.3 90.0 Cypress 10.6 88.1 Davidson 9.8 88.6 Del Rosa 6.3 92.2 Eliot 9.2 90.3 Fairfax 3.8 93.2 Hillside .9 98.0 Hunt 3.2 96.4 Kendall 1.5 98.5 Lincoln 14.0 85.8 Marshall .4 99.1 Mitchell 1.2 98.6 Newmark 1.5 97.0 Pacific 5.4 92.9 Parkside 1.3 98.5 Sterling 2.8 96.9 Vermont 10.4 89.5 Warm Springs 5.3 93.7 Wilson 5.5 92.5 Mixed Schools ----------------------------------- Burbank 74.1 24.1 Lyman 58.3 41.5 Lytle Creek 38.5 60.7 Jefferson 45.5 49.9 Metcalf (Special) 57.7 42.3 Monterey 17.0 81.4 Muscoy 38.7 62.3 Riley 45.6 49.8 Urbita 70.3 28.5 Minority Schools ----------------------------------- Alessandro 99.1 .9 California 96.3 3.7 Harding 89.7 11.0 Mill 96.7 3.3 Mt. Vernon 99.2 .7 Muscott 95.5 4.5 Ramona 98.3 1.0 Rio Vista 97.8 2.2 Roosevelt 95.5 3.7TABLE III
CLASSIFICATION OF SCHOOLS ACCORDING TO THREE DEFINITIONS OF ETHNIC BALANCE--1972"73 ETHNIC DATA
Definition Definition Definition Approx. # #1 (k15% #2 (k20% #3 (.5 or Child. Dist.) Dist.) more than In (22"52% (18"57% double Imbal Min.) Min.) Dist. %) School Elementary % Min. % % Maj. % Alessandro 97 3 Seg. Min. Seg. Min. Seg. Min. 100 Min. Arrowhead 30 70 Balanced Balanced Balanced Barton 28 72 Balanced Balanced Balanced Belvedere 29 71 Balanced Balanced Balanced Bradley 36 64 Balanced Balanced Balanced Burbank 79 21 Seg. Min. Seg. Min. Seg. Min. 250 Min. California 97 .3 Seg. Min. Seg. Min. Seg. Min. 250 Min. Cole 26 74 Balanced Balanced Balanced Cypress 24 76 Balanced Balanced Balanced Davidson 21 79 Seg. Maj. Balanced Balanced Del Rosa 16 84 Seg. Maj. Seg. Maj. Seg. Maj. 670 Maj. Emmerton 16 84 Seg. Maj. Seg. Maj. Seg. Maj. 470 Maj. Fairfax 20 79 Seg. Maj. Balanced Balanced Highland 22 78 Balanced Balanced Balanced Pacific Hillside 12 88 Seg. Maj. Seg. Maj. Seg. Maj. 460 Maj. Hunt 22 78 Balanced Balanced Balanced Kendall 24 76 Balanced Balanced Balanced Kimbank 43 57 Balanced Balanced Balanced Lankershim 34 66 Balanced Balanced Balanced Lincoln 46 54 Balanced Balanced Balanced Lytle Creek 68 32 Seg. Min. Seg. Min. Seg. Min. 260 Min. Marshall 18 82 Seg. Maj. Balanced Seg. Maj. 280 Maj. Mitchell 14 86 Seg. Maj. Seg. Maj. Seg. Maj. 430 Maj. Monterey 35 65 Balanced Balanced Balanced Mt. Vernon 99 1 Seg. Min. Seg. Min. Seg. Min. 300 Min. Muscott 92 8 Seg. Min. Seg. Min. Seg. Min. 270 Min. Muscoy 58 42 Seg. Min. Seg. Min. Seg. Min. 300 Min. Newmark 16 84 Seg. Maj. Seg. Maj. Seg. Maj. 370 Maj. North Park 63 32 Seg. Min. Seg. Min. Seg. Min. 380 Min. Oehl 9 91 Seg. Maj. Seg. Maj. Seg. Maj. 360 Maj. Parkside 12 88 Seg. Maj. Seg. Maj. Seg. Maj. 400 Maj. Riley 73 27 Seg. Min. Seg. Min. Seg. Min. 470 Min. Rio Vista 99 1 Seg. Min. Seg. Min. Seg. Min. 350 Min. Roosevelt 96 4 Seg. Min. Seg. Min. Seg. Min. 600 Min. Sterling 18 82 Seg. Maj. Balanced Seg. Maj. 270 Maj. Thompson 26 74 Balanced Balanced Balanced Urbita 76 24 Seg. Min. Seg. Min. Seg. Min. 160 Min. Vermont 27 73 Balanced Balanced Balanced Warm Springs 23 77 Balanced Balanced Balanced Wilson 19 81 Seg. Maj. Balanced Balanced Anderson TMR 57 43 Seg. Min. Balanced Balanced Carmack OH 41 59 Balanced Balanced Balanced --------- 3690 Min. 3710 Maj. Junior High Arrowview 46 59 Balanced Balanced Balanced Curtis 31 69 Balanced Balanced Balanced Del Vallejo 27 73 Balanced Balanced Balanced Franklin 98 2 Seg. Min. Seg. Min. Seg. Min. 360 Min. Fremont 53 47 Seg. Min. Balanced Seg. Min. 525 Min. Golden 24 76 Balanced Balanced Balanced Valley Highland 20 8 Seg. Maj. Balanced Balanced Richardson 78 22 Seg. Min. Seg. Min. Seg. Min. 330 Min. Serrano 19 81 Seg. Maj. Balanced Balanced Shandin 35 65 Balanced Balanced Balanced Hills Anderson TMR 57 43 Seg. Min. Balanced Seg. Min. 40 Min. Opp. School 43 57 Balanced Balanced Balanced --------- 1275 Min.[119 Cal.Rptr. 797]APPENDIX 'B'
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN BERNARDINO
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, a corporation, et al., Petitioners,
vs.
SAN BERNARDINO CITY UNIFIED SCHOOL DISTRICT, et al., Respondents.
The Petition for Writ of Mandate came on regularly for hearing on or about 9 June 1972 before this Court, sitting without a jury, petitioners appearing by Nathaniel S. Colley, Esq. and Nancy B. Reardan Esq. and all respondents (except Project Concern and 'all others similarly situated') appearing by Long & Levit and Bert W. Levit, Esq. The Court sustained respondents' demurrer as to the impropriety of joining as parties individual Board members and school personnel and dismissed the action as to all named individual Board members and as to the individually named Superintendent of Schools of said District. The Court overruled respondents general demurrer; and the demurrer on the special ground of failure to exhaust administrative remedies was taken under submission.
The Court heard oral testimony and examined the documentary evidence produced by the parties. On 2 May 1972 the Court heard and denied the application of petitioners for an injunction against the activities of respondent Project Concern, and no further proceedings have been had against said respondent. On 27 June 1972 the Court made and filed an interim Minute Order herein.
On 19 January 1973, upon its own motion and pursuant to §§ 730-737 of the California Evidence Code, the Court appointed four persons as expert witnesses to study the facts and report to the Court and the parties on certain aspects of the case. On 7 and 8 May 1973 further evidence was received from the Court's expert witnesses, and both petitioners and respondents rested their cases.
The cause having been submitted for decision, and the Court being fully advised in the premises and having made and caused to be filed its written Findings of Fact and Conclusions of Law, and having directed that judgment and peremptory Writ of Mandate should issue in the premises;
IT IS ORDERED, ADJUDGED AND DECREED:
1. Respondent District shall continue the operation of Plan B for the School Year 1973-74 with the following additional provisions:
a. There shall be required of each student in each school within each planning unit, as a portion of the attendance at his own school that he spend a sufficient period of time in the other schools within the planning-unit group to provide during that period of time contact with other students of other races and ethnic backgrounds. The time necessary shall be sufficient to effectively pave the way for ultimate desegregation in 1974 without the psychological problems arising from an immediate desegregation order.
b. There shall be sufficient funds allocated by the District to make this plan effective,, [119 Cal.Rptr. 798] and sufficient staff support shall be given to coordinate the planning-unit council's efforts so that the set goals in Plan B can be realistically achieved.
c. The District shall encourage the members of the community to act as members of the planning-unit councils in order to ensure the involvement of the community in achieving these goals.
d. Plan B shall terminate at the end of the Spring Semester of 1974. Any attendance scheme adopted for the assignment of pupils starting from the commencement of the 1974 Fall Semester shall be as free as possible from any segregation by reason of racial or ethnic imbalance as defined by any of those definitions of segregation contained in Finding 22 or as later defined by any state law, state legislation or court decision adopted or announced hereafter.
2. a. Respondents shall proceed forthwith to eliminate or alleviate segregation within respondent School District and to place into operation a plan reasonably calculated to do so by September of 1974.
b. If it is finally judicially determined that § 5002 and § 5003 of the California Education Code are in effect and that § 1009.6 was ineffective in repealing said sections, subsequent supervision of desegregation in respondent District shall be handled by the State Board of Education; and if prior to June of 1974 the State Board of Education has published State guidelines dealing with the validity or effectiveness of any plan for desegregation submitted to them, then this Court reserves jurisdiction only to ensure that said plans are found effective and are placed into effect by September of 1974.
c. If it is finally judicially determined that said § 5002 and § 5003 have been repealed, or if the State Board of Education has not published its guidelines by June of 1974 under the provisions of those sections, then this Court reserves jurisdiction to continue active supervision of the efforts of respondent District to desegregate pursuant to the order of this Court.
3. Respondent District shall place a high priority on alleviating the racial imbalance among certified staff. In the event that the State publishes guidelines for the purpose of determining the validity of any plans or efforts to alleviate staff imbalance, these guidelines are to be used and followed; but if prior to June of 1974 the State Board has not set such guidelines or if respondent District has not achieved a racial balance within the certified staff, or if it has unexcused ability which it has not exercised, then this Court retains jurisdiction to issue such orders as may be necessary in aid of its mandate.
4. a. Respondent District shall pay the following fees to the Court's witnesses:
Dr. Jane Mercer $ 601.00 Patricia Anderson 1,475.00 Dr. Robert E. Jenkins 1,823.85 Ernest Z. Robles 1,240.80b. Petitioners shall recover their costs herein.
5. Respondents' demurrer on the special ground of failure to exhaust administrative remedies is overruled.
6. A peremptory Writ of Mandate shall issue commanding respondents to perform the matters and things in this Judgment set forth.
7. Petitioner's prayer for attorney's fees is taken under submission.
s/ Egly JUDGE OF THE SUPERIOR COURT DATED: Sept. 13, 1973.
TAMURA, Associate Justice (dissenting).
I respectfully dissent.
In the first place, I firmly believe that the Equal Protection Clause of the Fourteenth Amendment to the federal Constitution and the substantially equivalent provisions of the California Constitution impose an affirmative duty on California school districts to alleviate racial segregation in [119 Cal.Rptr. 799] their schools whether it be of the de jure or the de facto variety. 1 Secondly, assuming for the sake of argument that an affirmative duty extends only to the eradication of de jure segregation, in my opinion the facts found by the trial court amply warranted judicial intervention. I shall briefly explain why I have reached the foregoing conclusions.
I
The majority holds that a school district has no constitutional obligation to remedy de facto racial segregation in its schools except upon a positive showing that the segregation results in a denial of equal educational opportunities. That proposition is totally unacceptable to me. The majority rests its decision upon recent United States Supreme Court decisions and a decision by Division One of this court in People ex rel. Lynch v. San Diego Unified School Dist., 19 Cal.App.3d 252, 96 Cal.Rptr. 658 [cert. den., 405 U.S. 1016, 92 S.Ct. 1288, 31 L.Ed.2d 478]. In my judgment, those cases are not dispositive of the issue before us.
To date the United States Supreme Court has not, as I read its decisions, held that the Fourteenth Amendment condones de facto racial segregation in public schools. Keyes v. School District No. 1, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548, expressly reserved decision on the issue, stating: 'We have no occasion to consider in this case whether a 'neighborhood policy' of itself will justify racial or ethnic concentrations in the absence of a finding that school authorities have committed acts constituting de jure segregation.' (413 U.S. 189, 212, 93 S.Ct. 2686, 2699, 37 L.Ed.2d 548.)
Nor does Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069, the latest expression of the High Court on school desegregation, resolve the question left unanswered in Keyes. Milliken involved the validity of a federal court decree ordering a multidistrict remedy to correct de jure segregation in one district. The Supreme Court held that an interdistrict remedy was beyond the equity powers of a federal court absent proof that school district lines were drawn to foster racial segregation or that discriminatory actions by the state or one or more of the districts have been a substantial cause of interdistrict racial imbalance. My colleagues direct our attention to footnote 22 of Milliken where Chief Justice Burger states: 'The suggestion . . . that schools which have a majority of Negro students are not 'desegregated,' whatever the racial makeup of the school district's population and however neutrally the district lines have been drawn and administered, finds no support in our prior cases. . . .' (Emphasis supplied.) All that Chief Justice Burger seems to be saying in footnote 22 is that the Supreme Court has thus far never held that an interdistrict remedy is constitutionally mandated where, because of the racial composition of a district's population, its schools have a student population predominantly of a minority racial group. As one commentator has noted, the Milliken opinion does not even 'explicitly decide whether de facto racial imbalance between urban and suburban districts is constitutionally prohibited, . . .' (The Supreme Court, 1973, Term, 88 Harv.L.Rev. 13, 70; fn. omitted.)
Although the United States Supreme Court has to date avoided coming to grips with the constitutionality of de facto racial segregation in schools, our Supreme Court has repeatedly and consistently taken a forthright position on the issue.
[119 Cal.Rptr. 800]In Jackson v. Pasadena City School Dist. (1963) 59 Cal.2d 876, at page 881, 31 Cal.Rptr. 606, at page 609, 382 P.2d 878, at page 881, the court declared: 'Residential segregation is in itself an evil which tends to frustrate the youth in the area and to cause antisocial attitudes and behavior. Where such segregation exists it is not enough for a school board to refrain from affirmative discriminatory conduct. The harmful influence on the children will be reflected and intensified in the classroom if school attendance is determined on a geographic basis without corrective measures. The right to an equal opportunity for education and the harmful consequences of segregation require that school boards take steps, insofar as reasonably feasible, to alleviate racial imbalance in schools regardless of its cause. . . .' (Emphasis supplied.)
In Mulkey v. Reitman (1966) 64 Cal.2d 529, 50 Cal.Rptr. 881, 413 P.2d 825 [aff'd. 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830] at page 537, 50 Cal.Rptr. at page 887, 413 P.2d at page 831, the court recalled that in Jackson 'the state, because it had undertaken through school districts to provide educational facilities to the youth of the state, was required to do so in a manner which avoided segregation and unreasonable racial imbalance in its schools.'
In San Francisco Unified School Dist. v. Johnson (1971) 3 Cal.3d 937, 92 Cal.Rptr. 309, 479 P.2d 669 [cert. den., 401 U.S. 1012, 91 S.Ct. 1266, 28 L.Ed.2d 549] at pages 957-958, 92 Cal.Rptr. at page 322, 479 P.2d at page 682, the court unequivocally reaffirmed the principle enunciated in Jackson, stating: 'We recognize that the courts of other jurisdictions have reached differing decisions as to whether school boards bear an affirmative duty to eliminate de facto segregation. This court, in Jackson v. Pasadena City School Dist. (1963) 59 Cal.2d 876, 31 Cal.Rptr. 606, 382 P.2d 878, however, took a position squarely in favor of enforcing an affirmative duty to eradicate school segregation regardless of its cause. . . .'
Again, in the landmark Serrano decision (Serrano v. Priest (1971) 5 Cal.3d 584, 96 Cal.Rptr. 601, 487 P.2d 1241), the court reemphasized its adherence to the Jackson principle, stating: 'Although the United States Supreme Court has not yet ruled on the constitutionality of de facto racial segregation, this court eight years age held such segregation invalid, and declared that school boards should take affirmative steps to alleviate racial imbalance, however created. (Jackson v. Pasadena City School Dist. (1963) 59 Cal.2d 876, 881, 31 Cal.Rptr. 606, 382 P.2d 878; San Francisco Unified School Dist. v. Johnson, supra, 3 Cal.3d 937, 92 Cal.Rptr. 309, 479 P.2d 669.) Consequently, any discrimination based on wealth can hardly be vindicated by reference to de facto racial segregation, which we have already condemned. . . .' (5 Cal.3d 584, 604, 96 Cal.Rptr. 601, 615, 487 P.2d 1241, 1255; emphasis supplied.)
The repeated affirmation by our High Court of the proposition that school boards must take affirmative steps to eradicate racial segregation in our schools irrespective of its brand cannot be brushed aside as dicta or gratuitous statements. Repeated declarations of the Jackson principle by our court of last resort, even though the pronouncements may not have been essential to its decisions, give that principle compelling force as the law of this state. (See Rosenthal v. City of Los Angeles, 193 Cal.App.2d 29, 32, 13 Cal.Rptr. 824; Roth v. Marston, 110 Cal.App.2d 249, 255, 242 P.2d 375; 6 Witkin, Cal. Procedure (2d ed.) Appeal, pp. 4591-4592.) In any event, since our High Court has persistently and emphatically declared its will on a matter of such grave import, this court, if it chooses not to follow those pronouncements, should at least articulate some compelling legal reasons for declining to do so. In my judgment, the majority has not revealed any substantial legal basis for reaching a contrary result.
The majority relies upon People ex rel. Lynch v. San Diego Unified School Dist., supra, 19 Cal.App.3d 252, 96 Cal.Rptr. 658, [119 Cal.Rptr. 801] as its principal authority for the proposition that where school segregation is of the de facto variety affirmative action is required only upon a positive showing that the racial imbalance actually denies the minority group equal educational opportunities. While I have the greatest respect for Division One of this court and particularly for the distinguished author of the Lynch opinion, I cannot subscribe to the statement in the opinion that '[t]he action of school authorities in maintaining de facto racially imbalanced public schools is not a denial of equal protection of the law unless the imbalance denies the minority group equal educational opportunities. . . .' (19 Cal.App.3d 252, 265, 96 Cal.Rptr. 658, 666.)
In the first place, the quoted statement in Lynch was dictum. The People by and through the Attorney General had filed a petition for writ of mandate to compel the respondent school district to alleviate racial imbalance in its schools. The trial court sustained a general demurrer to the petition with leave to amend but the People declined to amend. On the People's appeal the reviewing court concluded that the petition stated a cause of action in mandamus. The court determined that the facts alleged in the petition showed that the school distract's policy of maintaining neighborhood attendance zones, optional attendance zones and other devices, perpetuated and extended racial imbalance in its schools and that the district's refusal to take available reasonably feasible steps to alleviate the imbalance transformed what might have been de facto imbalance into de jure; further, accepting the truth of the allegations of the petition, the racially imbalanced schools denied students of the minority group equal educational opportunities, caused them social and psychological injury and thwarted their ability to learn. In other words, the reviewing court determined that the petition alleged facts from which it could be concluded that the minority students were in fact denied equal protection of the law. Thus, although the Lynch opinion opted for the so-called majority view that a school board is under no constitutional obligation under the Fourteenth Amendment to take affirmative action to remedy de facto school segregation absent proof that the imbalance denies students of the minority group equal educational opportunities, that choice was not necessary to its decision. Unlike the declaration of principle in Jackson, the Lynch court's pronouncement concerning the constitutionality of de facto segregation did not support its conclusion and so cannot be deemed an alternative ground of decision.
Secondly, whatever doubt may exist concerning a school board's obligations under the Fourteenth Amendment to the federal Constitution to end de facto racial segregation in schools, a school district's obligation under the California Constitution is, in my judgment, clear. Although the United States Supreme Court has declined to hold that a right to an education is a fundamental right under the federal Constitution (San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16), it has been held to be a fundamental right under our state Constitution. (Serrano v. Priest, supra, 5 Cal.3d 584, 96 Cal.Rptr. 601, 487 P.2d 1241. 2 ) Where a fundamental [119 Cal.Rptr. 802] right is at stake, the state has an affirmative duty to remedy the discriminatory effects of an otherwise neutral state policy. (Serrano v. Priest, supra, 5 Cal.3d 584, 602-603, 96 Cal.Rptr. 601, 615, 487 P.2d 1241, 1255.) By its emphatic and forthright reaffirmation of the proposition that 'school boards should take affirmative steps to alleviate racial imbalance, however created,' the Serrano case, by clear implication, indicates that the maintenance of separate but equal de facto racially segregated schools is incompatible with article I, sections 11 and 21 of the state Constitution. The proposition that maintenance of separate but equal de facto segregated schools is constitutionally permissible is a lamentable retreat to the pernicious doctrine of Plessy v. Ferguson (1896) 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256. It has no place in the law of this state. Where the state undertakes to provide an education, it must, at least under our state Constitution, do so in a way that does not disadvantage the minority. Separate but equal racially segregated schools, whether labeled de facto or de jure, clearly have an adverse effect on minority students.
Our Supreme Court has properly taken judicial notice of the fact that schools have a significant role to play in shaping a student's emotional and psychological makeup. (Serrano v. Priest, supra, 5 Cal.3d 584, 610, 96 Cal.Rptr. 601, 487 P.2d 1241; Jackson v. Pasadena City School Dist., supra, 59 Cal.2d 876, 881, 31 Cal.Rptr. 606, 382 P.2d 878.) It is common knowledge that racially segregated schools, whether de facto or de jure, perpetuate racial prejudices, breed racial fears and myths, instill in minority students a feeling of inferiority, and breed suspicion, whether well- or ill-founded, that minority students are being deprived of educational advantages provided to others. Psychological harm to minority students caused by segregated schools cannot be cured by providing 'equal educational opportunities' which I take to mean equal physical facilities and equal teaching competence and techniques. Nor can the degree of emotional and psychological harm to young minds be measured by achievement test scores. As long as racial prejudice festers in our society, racially segregated schools, whatever their origin, will work to the disadvantage of the minority students.
Thirdly, to say that a school board may sit back and do nothing to alleviate do facto racial school segregation is to invite delay and obstruction even in the context of de jure segregation. This has been a consistent theme of recent decisions of our Supreme Court.
In San Francisco Unified School Dist. v. Johnson, supra, 3 Cal.3d 937, at page 957, 92 Cal.Rptr. 309, at page 321, 479 P.2d 669, at page 681, the court observed that '[t]he weighing of the motive and effect of board decisions stretching back for many years to arrive at a net determination of the de facto or de jure character of the present structure presents a highly difficult and possibly insoluble task' and that 'under the current pattern of court decisions, neither school districts nor lower courts can determine with any confidence whether a pattern of school segregation should be classed as de facto or de jure. . . .' (Emphasis supplied.) In its decision just handed down in Santa Barbara Sch. Dist. v. Superior Court, 13 Cal.3d 315, 118 Cal.Rptr. 637, 530 P.2d 605, the court observed that recent decisions of the United States Supreme Court have substantially confirmed the fears expressed in Johnson. The court noted that the Keyes decision defined de jure segregation as a 'current condition of segregation resulting from intentional state action,' held that 'policies and practices with respect to school site location, school size, school renovations and additions, student-attendance zones, student assignment, . . . etc.' were potentially probative on the issue of intent to segregate, and emphasized that the inquiry into the school board's intent is not to be limited to actions in the immediate present. Our Supreme court concluded that Keyes means that a school board can only ascertain whether segregation within its schools is de jure or de facto 'by examining the [119 Cal.Rptr. 803] full history of acts by the school authorities and determining if, at any time in that course of action, some acts were undertaken with segregatory intent. . . .' (13 Cal.3d 315, 326-327, 118 Cal.Rptr. 637, 647, 530 P.2d 605, 615.) As a result, we are presented with the unsavory prospect of tedious and wasteful litigation, school district by school district, on the murky issue of a local board's intent to segregate at some prior time, perhaps thirty, forty or fifty years in the past, without any confidence that the true facts can ever be unraveled so long after the events.
Thus, the principle espoused by the majority herein that de facto segregation is constitutionally inoffensive except upon proof that racial imbalance in fact denies minority students 'equal educational opportunities' can only serve to obstruct and delay alleviation of de jure segregation. As such, the doctrine is unacceptable. It gives credence to the cynics' charge that the de facto concept is nothing more than legal sophistry invented by the courts to perpetuate racial segregation in schools. As Professor Black so cogently stated in a different but related context: 'Inaction, rather obviously, is the classic and often the most efficient way of 'denying protection;' the 'denial of justice,' in international law, includes the failure to act. When a racial minority is struggling to escape drowning in the isolation and squalor of slum-ghetto residence, everywhere across the county, I do not see why the refusal to throw a life-preserver does not amount to a denial of protection.' (The Supreme Court, 1966 Term, 81 Harv.L.Rev. 69, 73; fn. omitted.) Whatever uncertainties may persist concerning the constitutionality of de facto school segregation under the Fourteenth Amendment, I would hold that the California Constitution does not tolerate school district inaction whether the racial imbalance be termed de facto or de jure. As our Supreme Court has just reminded us, 'the California Constitution is, and always has been a document of independent force.' (People v. Brisendine, Cal., 119 Cal.Rptr. 315, 531 P.2d 1099 [1975].)
'The public school has been termed 'the most powerful agency for promoting cohesion among a heterogeneous democratic people . . . at once the symbol of our democracy and the most pervasive means for promoting our common destiny.'' (Serrano v. Priest, supra, 5 Cal.3d 584, 608, 96 Cal.Rptr. 601, 618, 487 P.2d 1241, 1258, quoting from McCollum v. Board of Education (1948) 333 U.S. 203, 216, 231, 68 S.Ct. 461, 467, 475, 92 L.Ed. 649, 661, 669.) A racially segregated school, whatever its roots, cannot serve as an instrument of cohesion or as a symbol of democracy. Only by eliminating racial segregation, however labeled, can public schools fulfill what I consider to be their highest role in our democratic society, to teach and cultivate respect for the individual without regard to racial, ethnic or cultural background.
II
Even conceding, arguendo, that the premise on which the majority bases its decision is correct, in my opinion the findings in the instant case were sufficient to support the desegregation order decreed by the court below. They reflect, inter alia, the following:
The existence of virtually totally segregated schools in the district and the resulting harmful effects on minority students were known to the school board as early as 1966. Knowledge was imparted through numerous reports from governmental and private groups authorized by the board to study the problem. In 1966 the board received from its citizen's advisory committee a report prepared after extended and careful study of the problems presented by segregated schools in the district. The committee found that the segregated schools in the district perpetuated racial prejudice and myths; fomented interracial violence; were the major contributing cause of low academic achievement, low morale, high truancy and rebellious attitudes among minority students; led to undesirable forms of competition between schools along ethnic lines; and were the basic cause of the failure of minority students [119 Cal.Rptr. 804] to identify with the mainstream of society. In light of this and other reports, the board undertook a program of voluntary desegregation. In the fall of 1966, as a result of student interracial violence, the board requested the state Board of Education to undertake a study and to make recommendations. The Bureau of Intergroup Relations of the State Board recommended that drastic action be taken by the district to end 'de facto' segregation in its schools. However, the board never went further than to adopt and implement various voluntary programs. The voluntary plans failed and will fail to achieve racial balance under any acceptable standard. The board nevertheless adopted a policy forbidding mandatory pupil assignment and mandatory busing for the purpose of achieving racial balance and placed a low financial priority on any efforts to achieve full integration.
Refusal by a school board to take 'available reasonably feasible steps to alleviate [racial] imbalance' in its schools is strong evidence of intent to segregate. (See People ex rel. Lynch v. San Diego Unified School Dist., supra, 19 Cal.App.3d 252, 268, 96 Cal.Rptr. 658.) The total picture presented by the findings, and the reasonable inferences to be drawn therefrom, is that the school board, despite its knowledge of the unreasonable racial imbalance in its schools and its harmful effects on minority students, hampered and delayed effective desegregation in its schools thereby transforming what might have been de facto segregation into de jure segregation. '[T]he state cannot constitutionally countenance obstructionism, for once the state undertakes to preserve de facto school segregation, or to hamper its removal, such state involvement transforms the setting into one of de jure segregation.' (San Francisco Unified School Dist. v. Johnson, supra, 3 Cal.3d 937, 958, 92 Cal.Rptr. 309, 322, 479 P.2d 669, 682; fn. omitted.)
CONCLUSION
I believe the respondent board has a constitutional obligation under both the federal and state Constitutions to take affirmative steps to remedy unreasonable racial imbalance in its schools whether the imbalance be termed de facto or de jure. Furthermore, it is my conclusion that the findings, including reasonable inferences which may be drawn therefrom, were sufficient to support the trial court's desegregation decree. The record shows that the able trial judge conducted a thorough and dispassionate trial. He took extensive testimony from witnesses for both sides, appointed experts to study and report upon various segregation proposals, and painstakingly framed extensive findings and a reasonable, feasible and effective desegregation order, reserving continuing jurisdiction to supervise the district's efforts to comply with the decree. The judge made it clear that, except as specifically provided in his decree, he did not intend to mandate how desegregation was to be achieved, intending only to require that any desegregation plan be reasonable, feasible and effective. The trial judge acted responsibly, reasonably, and correctly. I find no basis in law or in fact for reversing the judgment.
I would affirm.
[*] Opinion that appeared on pages 694-702 deleted on direction of Supreme Court by order dated May 28, 1975. Hearing granted in opinion that appeared on pages 703 to 735.
'All laws of a general nature shall have a uniform operation.'
Article I, section 21 of the California Constitution provides:
'No special privileges or immunities shall ever be granted which may not be altered, revoked, or repealed by the Legislature; nor shall any citizen, or class of citizens, be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens.'