Metropolitan News-Enterprise


Thursday, September 5, 2002


Page 1


Court Overturns Order Blocking Pasadena School Assignment Plan


By KENNETH OFGANG, Staff Writer/Appellate Courts


A district judge’s order striking down the way the Pasadena Unified School District assigns students to three of its elementary schools was reversed yesterday by a Ninth U.S. Circuit Court of Appeals panel, which said the plaintiffs lacked standing to bring the case.

PUSD had argued that its lottery plan for assigning students to Don Benito Elementary School, Marshall Fundamental Secondary School and Norma Coombs Alternative School is race-and-gender neutral.

But the appeals judges never reached the question, saying that even if the plan was flawed, the courts had no jurisdiction to hear the suit because the parents who brought it presented no evidence that race and gender had been considered in the assignments of their own children during the school year in which they sued.

Open Enrollment

PUSD allows parents living anywhere in the district to enroll their children in the three schools. Because the number of potential enrollees sometimes exceeds available space, however, not all parents who wish to send their children to a particular school can do so.

The district’s policy provides that priority be given to siblings of current students. After that, each potential student is given an equal chance in a lottery, except that if the applicant pool is so skewed as to risk the creation of a student body that is not substantially diverse as to race, gender, and other characteristics, the lottery may be weighted.

U.S. District Judge Dickran M. Tevrizian ruled that the policy is unconstitutional because it allows the use of race, ethnicity and gender as factors.

But Senior Judge Betty B. Fletcher, writing for the Court of Appeals, agreed with the district that the the plaintiffs offered no showing of “actual or imminent” injury because none of the objected-to factors were used in the 1999-2000 lottery that they challenged. Absent such injury, she said, the constitutional requirement of a case or controversy is lacking.

“The requirement of Article III standing is a core component of the separation of powers,” she wrote. “...The standing doctrine aids the federal judiciary to avoid intruding impermissibly upon the powers vested in the executive and legislative branches, by preventing courts from issuing advisory opinions not founded upon the facts of a controversy between truly adverse parties.”

The plaintiffs, represented by an attorney from the conservative United States Justice Foundation, argued for a decision on the merits, based on a concession by the district that it may use a race- or gender-weighted lottery in the future.

‘Too Speculative’

But Fletcher said that possibility was “far too speculative” to constitute a constitutionally recognizable injury. Nor was the fact that the policy required the district to monitor the race and gender of applicants in order to determine whether to use a weighted lottery sufficient to confer standing, she said.

“The district court’s ruling purports to determine that the plaintiffs had standing because they alleged that they faced a barrier in admissions; the court’s ruling in fact permits the plaintiffs to bring suit without alleging that such a barrier was erected against them, but merely by alleging that it could be (at some unspecified time in the future, under some unspecified condition),” the judge wrote. “The breadth of the district court’s ruling provides an example of why careful adherence to the Article III case or controversy requirement is essential to the exercise of our judicial function.”

Senior Judge Dorothy W. Nelson and Judge M. Margaret McKeown joined in the opinion.

The case is Scott v. Pasadena Unified School District, 00-55532.


Copyright 2002, Metropolitan News Company