Metropolitan News-Enterprise


Tuesday, June 4, 2002


Page 1


Court of Appeal Strikes Down Race-Based School Transfer Policy


By KENNETH OFGANG, Staff Writer/Appellate Courts


A school district policy restricting a student’s ability to transfer into a school  where his or her racial group is already over-represented, or out of a school where he or she is in a racial minority, violates Proposition 209, the Fourth District Court of Appeal has ruled.

Div. Three Friday overturned a lower court ruling and struck down the Huntington Beach Union High School District’s rule limiting transfers into and out of Westminster High School under Education Code Sec. 35160.5.

That statute provides that students have the right to “open enrollment” at the schools of their choice within the district in which they live, subject to certain exceptions. One exception is that districts “retain the authority to maintain appropriate racial and ethnic balances among their respective schools at the school districts’ discretion or as specified in applicable court-ordered or voluntary desegregation plans.”

The Huntington Beach district adopted the restrictive policy at Westminster because it is the only “racially isolated” school among the six in the district. Under the rule, Asians—about 45 percent of the student body—and Hispanics—about 30 percent—who live outside the Westminster attendance zone cannot transfer in unless an equal number of Asians or Hispanics transfer out.

Similarly, “Whites”—less than one-sixth of the student population—must attend Westminster if they live in its zone, unless an equal number of whites transfer in.

Taxpayer Suit

The policy was transferred in September 1999 by Donald Bruce Crawford, who brought a taxpayer suit in 1999 with representation by the Pacific Legal Foundation.

The complaint alleged that the policy violated Proposition 209, the 1996 initiative that amended the state Constitution to prohibit discrimination or “preferential treatment… on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

Orange Superior Court Commissioner Sheila B. Fell ruled that the policy was acceptable because it “promotes a non-segregated public education.” The state Supreme Court ruling in HiVoltage Wire Works, Inc. v. City of San Jose (2000) 24 Cal.4th 537, striking down a minority outreach program for city contractors as inconsistent with the initiative, was found by the commissioner to be inapplicable.

The commissioner was wrong, Presiding Justice David K. Sills wrote Friday for the appellate panel. Because some students will be allowed to attend the school of their choice, while others will not, and because the distinction between the two groups is racial, the policy violates the initiative, Sills reasoned.

Legitimate Goal

While the goal of the policy, desegregation, is a legitimate one, Sills explained, the voters clearly intended that such programs be subject to scrutiny under Proposition 209.

“The District emphasizes the special nature of K-12 public education and we do not underestimate the significance of quality K-12 public education,” the presiding justice wrote. “But while we appreciate the unique value and importance of education… it is clear the intention of the voters was that Proposition 209 apply to education.”

Sills rejected the contention that the policy implements the Equal Protection Clause of the Fourteenth Amendment and thus takes precedence over Proposition 209.

“While there can be no question the United States constitution prohibits a school district from acting to segregate schools, there is no federal constitutional mandate necessitating the implementation of a proactive program of integration,” he wrote. “The United States Supreme Court has made it clear that such a plan is not required by the federal equal protection clause.”

Sills added that the court was not suggesting that schools are powerless to implement “integration plans.” A school district may, he advised, encourage integrated student bodies through such devices as magnet schools—which offer special programs in order to entice enrollees from a wide geographic area—or an unweighted random lottery for students wishing to attend schools outside their attendance zones.

Pacific Legal Foundation attorney Sharon Browne, who represented Crawford, said she was” happy with the opinion because it’s so straightforward.” Other districts, she said, need “to sit up and take notice if they have any policy in which race is a factor” and to “repeal any policy that relies on the student’s race” in determining where a student attends.

It is too early to tell how other districts will be affected by the ruling, Browne told the MetNews.

PLF has one similar lawsuit pending, a challenge to how the Gilroy Unified School District in Northern California assigns students to elementary schools, she said. PLF is currently surveying other districts around the state to determine what their policies are, she said, and “will not hesitate” to sue if the organization feels the policies violate Proposition 209.

David Larsen of Rutan & Tucker, the attorney for the Huntington Beach district, did not return a phone call. Nor did Deputy General Counsel Joanne Lowe of the California Department of Education, which was also a defendant in the suit.

The case is Crawford v. Huntington Beach Union High School District, 02 S.O.S. 2754.


Copyright 2002, Metropolitan News Company