In 1978, the San Francisco branch of the National Association for the Advancement of Colored People ("SFNAACP") and a group of black parents filed a class-action lawsuit in the U.S. District Court for the Northern District of California. They charged the San Francisco Unified School District, its board members and its superintendent, the California State Board of Education and its members, the State Superintendent of Public Instruction, and the State Department of Education with engaging in racially discriminatory practices and maintaining a segregated school system in San Francisco, in violation of the constitutions and laws of the United States and California. Plaintiffs sought a declaratory judgment and injunctions guaranteeing them equal educational opportunity and fully desegregated schools under a court-ordered desegregation plan, as well as an award of attorneys' fees and costs. The action was assigned to District Judge William H. Orrick, Jr., who presided over the case for almost all of its nearly thirty-year history.
On September 18, 1979, the state defendants' motion for dismissal or abstention was denied. San Francisco NAACP v. San Francisco Unified Sch. Dist., 484 F. Supp. 657 (N.D. Cal. 1979). Judge Orrick rejected defendants' arguments that: (1) the Court should not decide the "unsettled" issue of state law concerning the apportionment of policy-making powers between state and local authorities, and (2) primary responsibility for implementing education policy should rest with the state legislature and local school districts, not with defendant state agencies. Because proof of segregative intent was a predicate for demonstrating a violation of equal protection, this issue was to be litigated. To establish segregative intent, plaintiffs needed to demonstrate evidence of past purposeful discrimination that would then give rise to liability for subsequent acts which had the effect of maintaining a segregated school system. Absent such a showing, plaintiffs needed to demonstrate ongoing intentional segregation, a higher burden. On September 24, 1981, the court denied the school district's motion for a separate trial on the issue of whether, at the time of filing of the original complaint, it was operating a segregated school system. While that motion was still pending, on June 30, 1981, the Court denied plaintiffs' motion for partial summary judgment on the issue of whether, as of 1954 and 1970, the district was intentionally racially segregated.
The parties entered into settlement negotiations, drawing on the expertise of a court-appointed settlement team co-chaired by Professor Harold Howe II and Professor Gary Orfield; both had extensive experience in desegregation cases. The parties submitted a consent decree on December 30, 1982. After a fairness hearing held on February 14, 1983, Judge Orrick approved the consent decree by written decision on May 20, 1983. San Francisco NAACP v. San Francisco Unified Sch. Dist., 576 F. Supp. 34 (N.D. Cal. 1983). In the consent decree, guidelines were adopted to prevent any racial/ethnic group from exceeding 45 percent of the student body at any regular school or 40 percent at any "alternative" school. The decree provided that each school's staff should reflect the district-wide racial/ethnic composition of students and that staff would be equitably assigned throughout the district. The parties were also required to report to the court on the fairness and consistency of disciplinary actions and on student academic progress. Other highlights of the decree included a requirement that both the school district and an independent reviewer (subsequently known as the "consent-decree monitor") submit an annual report regarding the district's compliance with the consent decree and a provision that the state would pay the costs of complying with the decree.
Implementation of the consent decree proceeded successfully, with the exception of a dispute over exactly how much the state was required to reimburse the district for the costs of implementation. See San Francisco NAACP v. San Francisco Unified Sch. Dist., 695 F. Supp. 1033 (N.D. Cal. 1988), rev'd, 896 F.2d 412 (9th Cir. 1990). After eight years of implementation, the court commissioned a comprehensive report on the results of the consent decree, appointing Professor Orfield to lead the investigation team. This committee of experts filed its report in June 1992, finding that the district had "largely achieved the decree's desegregation goals," while also noting the continuing achievement gap for black and Hispanic students. Based on recommendations made in the report, the Court approved a modified consent decree on November 5, 1993. The modified decree left the basic structure of racial/ethnic distribution the same but incorporated changes in individual school treatment. The district was also required to provide an additional annual report showing the longitudinal impact of the consent decree. At the fairness hearing, motions to intervene were heard from Multicultural Education, Training, and Advocacy, Inc., representing the interests of both Latino and Chinese students, and the local teachers union. In an unpublished order on July 22, 1993, Judge Orrick denied the motions to intervene while permitting two coalitions, representing the interests of Latino and Chinese students respectively, to act as amici curiae. For several years afterward, the court received positive reports of academic improvement in the schools.
After 1983, the demographics of the district changed significantly. Enrollment of black and white students declined as Chinese-American and Latino enrollment grew. While Chinese-American students represented 19.5 percent of the district in 1983, by 1992 they had grown to 24 percent, the largest ethnic subgroup in the district. The percentage caps imposed by the 1983 decree had practical impact: for example, at an academically-selective, alternative high school, Chinese-American students needed a significantly higher admission index score to gain admission than did white, black or Latino students. On July 11, 1994, several schoolchildren of Chinese descent filed suit against the district and state defendants. The plaintiffs in the new case, Ho v. San Francisco Unified School District, were school children who had been "capped out" of their neighborhood schools. Their complaint alleged that the student-assignment plan described in the consent decree -- the 45/40 percent ethnic distribution requirement -- constituted race discrimination in violation of the Equal Protection Clause. In January 1995, the Ho plaintiffs filed a first amended complaint adding the SFNAACP as a defendant. In March 1996, the Court certified a class comprised of San Francisco schoolchildren of Chinese descent. The Ho plaintiffs then filed a motion for summary judgment, arguing that the ethnic-distribution requirement of the decree was unconstitutional. Their motion was denied in 1997. Judge Orrick held that the decree was not unconstitutional when entered and that, in any event, res judicata barred the plaintiffs -- as members of the original class -- from raising the issue. Ho v. San Francisco Unified Sch. Dist., 965 F. Supp. 1316, 1320 (N.D. Cal. 1997). The Court also held that there were issues of fact precluding summary judgment, at least as to: (1) the existence of past discrimination justifying the consent decree; (2) the necessity of the decree's caps as a sufficiently narrowly-tailored remedy; and (3) whether continued judicial supervision was necessary to achieve full compliance with the decree. (Material from and a summary of the Ho case exists in this database as case SD-CA-0001.)
The Ho plaintiffs appealed the summary-judgment ruling. They also sought a writ of mandamus directing the court not to proceed with trial. In an opinion by Circuit Judge John Noonan filed on June 4, 1998, the Ninth Circuit dismissed the appeal for lack of jurisdiction. It noted that "proper resolution of any desegregation case turns on a careful assessment of its facts," which had not yet been presented. Ho v. San Francisco Unified Sch. Dist., 147 F.3d 854, 860 (9th Cir. 1998). The court also denied the petition for a writ of mandamus, while nevertheless pointing out weaknesses in the evidence justifying the continued implementation of the decree. After a lengthy discussion of the history of racial discrimination against the Chinese in San Francisco, Judge Noonan identified the two issues that remained for trial: "Do vestiges remain of the racism that justified...the consent decree in 1983? [Are the percentage caps] necessary to remove the vestiges if they do remain?" The Ninth Circuit stressed that defendants' evidence must tie the current vestiges of segregation to the discriminating practices and policies that justified the adoption of the consent decree in 1983. It also held that it was defendants' burden to show that the racial classifications and quotas employed by the decree were tailored to the problems caused by vestiges of the earlier segregation. On December 10, 1998, the court denied the Ho plaintiffs' motion for a preliminary injunction. That motion sought to enjoin defendants from further implementation of the student-assignment plan described in the decree. The court found that plaintiffs had not shown irreparable harm. If they succeeded at trial, there would be ample time to assign students to schools in a race-neutral manner for the following school year.
On February 16, 1999, the first day of trial, the parties submitted a settlement agreement, which was later approved in an order filed July 2, 1999. San Francisco NAACP v. San Francisco Unified Sch. Dist., 59 F. Supp. 2d 1021, 1029 (N.D. Cal. 1999). The settlement created of a new student-assignment plan that eliminated race as a factor in determining student placement. The court further required the parties to respond to reports submitted by members of the consent-decree advisory committee (represented at hearings by Hoover Liddell) and consent-decree monitor Stuart Biegel. The Ho settlement agreement also set a termination date for the consent decree of December 31, 2002, subject to court approval. During 1999-2001, the reports submitted by the advisory committee and Mr. Biegel reflected continuing problems within the school district and failure to comply with certain terms of the decree, including the development of a race-neutral student-assignment plan. The district was ordered to file a comprehensive plan to address these problems, which it did on April 11, 2001. At the parties' request, Thomas J. Klitgaard was appointed as special master to assist the parties in resolving any disputes in implementing, or unresolved by, the 2001 plan. On July 11, 2001, the parties submitted an amended stipulated settlement agreement, which was incorporated into the final version of the decree. These changes included further amendments and extended the life of the decree to December 31, 2005. This extension was allegedly necessary due to "unexpected turmoil" in the district, due to administrative personnel and financial problems. The new changes in the decree called for student assignment based upon District use of a "diversity index" which did not rely upon racial/ethnic factors. Afterward, the monitor and the court found that the district became increasingly re-segregated and schools displayed achievement gaps among racial and ethnic groups. The parties proposed extending the consent decree for a period of eighteen months, rather that allowing it to expire, as scheduled, at the end of 2005.
On November 8, 2005, District Judge Willaim H. Alsup (who took over the case in 2002 when Judge Orrick retired) rejected the proposal, citing recent Supreme Court precedent calling for returning school control to local authorities at the earliest practicable date. In his view, the diversity index had not and would not produce the benefit of diversity or racial integration. The judge's opinion reviewed the history of the cases leading to the 1983 and 1999 consent decrees, the 2001 settlement, and what the monitor had described as recent re-segregation of certain schools. The judge viewed the re-segregation resulting from the decree's student assignment plan as among the factors precluding extension of the decree, together with the parties' failure to show that the vestiges of past racial discrimination had not already been eliminated. An existing District initiative to remedy academic achievement disparities would continue whether or not the decree was extended, noted the court. Judge Alsup opined that the parties used the supremacy of the decree to override opposition from parents, teachers, and other interests not represented in the case and, although doing so with admirable motives, the decree short-circuited the traditional checks and balances of the traditional governmental and political processes. San Francisco NAACP v. San Francisco Unified School District, 413 F. Supp.2d 1051 (N.D. Cal. 2005). The same day, the judge ordered the clerk to close the case.
The court's docket sheets for the case reflect that, after Judge Alsup's order refusing to extend the decree, the San Francisco NAACP again sought an award of attorneys' fees, the plaintiffs' attorneys were allowed attorneys' fees, and the monitor filed a final supplemental report. We currently have no information about resolution of the NAACP's fee motion or indicating any other activity in the case following the December 28, 2005, filing of the monitor's supplemental report.Mike Fagan - 06/30/2008