Metropolitan News-Enterprise


Friday, August 23, 2002


Page 1


Ninth Circuit Asks State Supreme Court to Look at LAUSD Rule on Transfers for Teachers


By a MetNews Staff Writer


A Los Angeles Unified School District policy that limits the ability of teachers to transfer from one school to another, based on the effect of the transfer on the racial makeup of the faculty, should be reviewed by the California Supreme Court, a Ninth U.S. Circuit Court of Appeals panel said yesterday.

The federal tribunal certified to the state Supreme Court the questions of whether the policy constitutes a racial preference, within the meaning of Proposition 209, and if so, whether it falls within any of the exceptions to the initiative’s ban on such preferences.

The policy is being challenged by LAUSD physical education teacher James M. Friery, who is being represented by the conservative United States Justice Foundation. Friery brought suit after his 1999 request to transfer from Van Nuys High School to the math and science magnet school on the same campus was denied.

The denial was based on a district policy prohibiting teachers from transferring if the result is that the number of minority faculty at a school would be less than 15 percentage points below or more than 25 percentage points above the figure for the district as a whole.

Since 51 percent of LAUSD K-12 and magnet school teachers were minorities in 1999, whites normally could not transfer to a school that was 36 percent or less minority or out of a school that was 76 percent or more minority, while minorities could not transfer out of a school that was 36 percent or less minority or into a school that was 76 percent or more minority.

The policy does, however, permit exceptions to be made “as a result of the qualifications of available applicants or to meet the instructional needs of students, the school’s instructional program or other specific and demonstrable requirements of the school.”

Friery contended in his suit, filed in the U.S. District Court for the Central District of California, that the policy violated not only his federal constitutional rights but also Proposition 209, the 1996 measure by which California voters banned most “preferential treatment” on the basis of race or gender in employment, contracting, or education.

Exceptions permit such preferences if needed to comply with federal law or prior court orders.

U.S. District Judge Nora Manella granted the school district’s motion for summary judgment, reasoning that the policy does not grant a racial preference. She also held that the policy was consistent with the district’s duty, under the state Constitution, to eliminate de facto segregation and that it falls under the court-orders exception.

 Manella said the district remains subject to a longstanding desegregation order, even though Department of Education oversight ended in 1993. There was no showing that the order was ever terminated, she said.  

Judge Diarmuid F. O’Scannlain, writing for the Ninth Circuit, said the effect of Proposition 209 should be considered by the state high court because it has never dealt with the issue of whether a policy which “applies only at the margins of a set range and, at least on its face, may benefit either whites or nonwhites” violates the initiative.

Judges Pamela Ann Rymer and Sidney R. Thomas are also on the panel.

O’Scannlain also sat on a panel that considered a similar numerical plan for maintaining racial balance in the student body of Seattle high schools. That panel originally ruled that the plan violated a Washington initiative similar to Proposition 209, but later vacated that ruling and used the same certification procedure invoked yesterday, asking the Washington Supreme Court to interpret the voters’ intent.

The California Supreme Court must now decide whether to hear the case of Friery v. Los Angeles Unified School District, 01-56016.


Copyright 2002, Metropolitan News Company