Metropolitan News-Enterprise


Thursday, August 29, 2002


Page 1


S.C. Won’t Review Ruling on Race-Based School Transfer Policy


By KENNETH OFGANG, Staff Writer/Appellate Courts


The state Supreme Court yesterday declined to review a Court of Appeal ruling striking down a school district’s restrictive transfer policy as a violation of Proposition 209.

No justice voted to review the May 31 ruling of the Fourth District’s Div. Three in Crawford v. Huntington Beach Union High School Dist., 98 Cal.App.4th 1275.

The panel held that the policy, which restricted a student’s ability to transfer into a school where his or her racial group was already over-represented, or out of a school where he or she was in a racial minority, violates the 1996 initiative outlawing racial preferences in public education, employment, or contracting.

The district put the policy on hold after the Court of Appeal ruling, its attorney, David C. Larsen of Rutan & Tucker, told the MetNews. Students who wish to transfer into or out of Westminster High School, the only school affected by the policy, may currently do so regardless of race, he said.

Larsen declined to comment on whether the district would ask the U.S. Supreme Court to hear the case, based on the district’s argument that the policy is necessary to implement Fourteenth Amendment equal protection rights.

The Huntington Beach Union High School District adopted its policy 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.”

‘Racially Isolated’

The Huntington Beach district applied a restrictive policy to 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-living outside the Westminster attendance zone could not transfer in unless an equal number of Asians or Hispanics transferred out.

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

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

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.

Policy Unlawful

But the appellate panel, in an opinion by Presiding Justice David K. Sills, said the policy was unlawful. Because some students would be allowed to attend the school of their choice, while others would not, and because the distinction between the two groups is racial, the policy violates Proposition 209, Sills reasoned.

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.

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.

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.

In other actions taken at yesterday’s conference, the court:

Agreed to revisit the question of what showing a custodial parent must make in order to justify moving to a place distant from the other parent’s residence. A First District Court of Appeal panel, in an unpublished opinion, reversed an order requiring a custodial parent to give up primary physical custody if she went ahead with a planned move out of the state. The case is In re Marriage of Lamusga, A096012.

Elected to review a decision by Div. One of this district’s Court of Appeal in an insurance coverage case. The court held in Rosen v. State Farm General Ins. Co., 98 Cal.App.4th 1322, that a homeowner’s policy that expressly defines the term “collapse” as “actually fallen down or fallen into pieces” provides coverage for imminent collapse.

Agreed to review an unpublished Third District Court of Appeal decision dealing with the adequacy of a claim under the Governmental Tort Claims Act. The court in Stockett v. Association of California Water Agencies, C035330, threw out a $4.5 million wrongful termination judgment on the ground that the plaintiff’s tort claim failed to place the employer on notice as to what public policies it allegedly violated by ending the plaintiff’s employment.

Granted review in People v. Celis, 98 Cal.App.4th 621, in which the Fourth District’s Div. One held that police acted reasonably in detaining a suspect outside his home based on observations that lead them to suspect that criminal activity was ongoing.

Granted review in People v. Garcia, 99 Cal.App.4th 38, in which the Third District held that a defendant convicted of a misdemeanor offense of stealing a drug, which he immediately consumed, was eligible for a treatment program under Proposition 36.


Copyright 2002, Metropolitan News Company