Monday, December 22, 2008
C.A. Turns Back Challenge to LAUSD Integration Programs
By KENNETH OFGANG, Staff Writer
The Los Angeles Unified School District’s Magnet School program and a separate voluntary desegregation program are exempt from Proposition 209’s ban on racial preferences in education, the Court of Appeal for this district ruled Friday.
Div. Five upheld Los Angeles Superior Court Judge Paul Gutman’s conclusion that the programs grow out of a 1981 Superior Court desegregation order and are thus explicitly exempt from Proposition 209.
In the Magnet School Program, parents wishing to send their children to those schools, which offer specialized programs not routinely available at other schools, must complete applications providing certain information, including the children’s ethnicity.
The program requires that a balance of 60 percent to 40 percent, or at some schools 70 percent to 30 percent, be maintained between students coming in from predominantly minority—black, Hispanic, Asian or “other non-Anglo”—schools to those coming from schools where most students are non-Hispanic whites.
Permit With Transportation
The other program attacked in the lawsuit is the Permit With Transportation, or PWT, program. PWT provides an opportunity for students whose local school is predominantly minority to attend predominantly white schools and to obtain free transportation.
The American Civil Rights Foundation, an anti-affirmative action legal group, sued for declaratory and injunctive relief under Proposition 209, which was enacted in 1996. LAUSD, and a number of parents and groups who intervened, responded that the programs were exempt from the initiative because they were required by court orders entered before the measure was enacted.
In concluding that the district and the intervenors were correct, Gutman cited Crawford v. Board of Education (1976) 17 Cal.3d 280. The court in that case affirmed, with modifications, the 1970 order of Los Angeles Superior Court Judge Alfred Gitelson—who was subsequently defeated for re-election and is now deceased—requiring LAUSD to alleviate the harms caused by what the judge found to be a segregated school system under the state Constitution.
In 1977, the district submitted an integration plan, including widespread reassignments based on race. Judge Paul Egly, who had taken over the case after Gitelson’s defeat and is now retired, issued orders based on the plan.
In 1979, California voters amended the Constitution by passing Proposition 1, which prohibits mandatory reassignment of pupils based on race, other than as required by the U.S. Constitution. Egly then modified his previous orders, but the modified orders were struck down by the California Supreme Court as violating Proposition 1.
The next Superior Court judge to handle the case was Robert B. Lopez, now deceased. In 1981, he approved, with modifications, an integration plan that included the Magnet and PWT programs.
Noting that the litigation was by then 18 years old, Lopez ruled that ongoing judicial supervision of the district’s desegregation efforts was no longer necessary, and vacated “[a]ll outstanding Orders of the Superior Court in this manner, save the Minute Orders re Court Monitors....”
Gutman rejected the ACRF’s contention that Lopez’s order meant that at the time Proposition 209 was enacted, the district was not subject to judicial desegregation orders, and the appellate panel said the trial judge was correct.
Justice Sandy Kriegler, writing for Div. Five, agreed with the ACRF that Proposition 209 would apply to the LAUSD plan if it were voluntary. But ACRF was misinterpreting Lopez’s order, the justice said.
“The 1981 order has never been reversed, overruled, vacated, revoked, modified, or withdrawn, and ACRF does not contend otherwise,” Kriegler wrote. “Contrary to ACRF’s claim, the superior court found it clear and beyond dispute that the District was ordered to employ race and ethnicity to ensure that the Magnet schools would in fact be integrated.”
The jurist distinguished U.S. Supreme Court cases holding that a school district will no longer be subject to mandatory desegregation orders once a court finds that the district has eliminated segregation.
No such finding has been made with respect to LAUSD, Kriegler said, also noting that the district has, subsequent to the passage of Proposition 209, received hundreds of millions of dollars from the state under statutes reimbursing costs of court-ordered desegregation only.
The ACRF was represented by Sharon L. Browne, Harold E. Johnson, Paul J. Beard II and Elizabeth A. Yi of the Pacific Legal Foundation. Peter W. James of Baker & Hostetler represented LAUSD, as he has in desegregation matters since 1979.
The case is American Civil Rights Foundation v. Los Angeles Unified School District, 08 S.O.S. 6821.
Copyright 2008, Metropolitan News Company