Los Angeles Branch Naacp v. Los Angeles Unified School District

POOLE, Circuit Judge,

concurring in part, dissenting in part.

I agree with the majority that the plaintiff “class” members cannot be barred by the doctrines of res judicata or issue preclusion from litigating the de jure issues of this case for the period following May 2, 1969. It is beyond dispute that both sides formally stipulated at the beginning of trial that they were going to try issues covering the period 1963 to 1968.

I disagree with the conclusion that in the aftermath of Crawford v. Board of Education, 113 Cal.App.3d 633, 643 , 170 Cal.Rptr. 495 (1980), (Crawford II), the plaintiffs ever had that “full and fair opportunity” to relitigate their pre-1969 de jure claims as the majority charges. The time constraints and the unique circumstances of the last years of this case made quite illusory the possibility of any reopening in view of Crawford II’s mandate pursuant to its heavy-handed treatment of the facts and principles believed long since established about the unacceptability of racial school segregation in California and about the State’s consequent duty to bring it to an end.

Nor can I share the buoyant confidence expressed by some of my colleagues that today’s decision promises any certainty of success in moving the bureaucracy of Los Angeles’ school systems to repair the damage after years of neglect and indifference to the rights of all children to equal education. Still less do. I anticipate that the mentality which put Proposition I on the *750 lawbooks of this state has any real interest in making the accommodations needed to bring about the goal of quality education for all.

Therefore, with appreciation of the majority’s conscientious efforts, I am moved toward this separate writing, for I do not see this as just another “school case.” Rather, we may be at a watershed in public and political perception of the constitutional principles of equal protection, and what happens to this case may furnish indicators of how fragile is the ground on which such principles rest.

Historical Observations

Some review of things past seems relevant to give appropriate context. In the century after the founding of California, and until the courts, federal and state, imposed constitutional restraints, there existed in this state attitudes, policies and practices of denying equal protection to certain citizens, of limiting freedom of mobility within the social community, of curtailing their legal and property rights, and of imposing differential treatment on account of race, color, and origin.

Before the turn of the century, when the railroads brought in large numbers of Chinese as laborers, they were traditionally and for many years restricted to living in the ghetto areas which became the China-towns of the west. When Japanese people began to arrive in large numbers at century’s end, agitation developed throughout the western states to withhold agricultural lands from them because of the “competition” feared from their labor and industry. See McGovney, The Anti-Japanese Land Laws of California and Ten Other States, 35 Cal.L.Rev. 7, 14 (1945). In 1913, by legislation, and more strictly in 1920, by the Initiative Process, California adopted the Alien Land Law (Alien Property Initiative Act of 1920, Stats.1921, p. lxxxiii, as amended; 1 Deering’s Gen.Laws, Act 261), which forbade aliens, most particularly Asians, from owning real property, or from leasing it for more than three years. The courts of California upheld this law and enforced it by injunctions and forfeiture proceedings until the Supreme Court held that the legislation violated the Equal Protection Clause of the United States Constitution. Oyama v. California, 332 U.S. 633 , 68 S.Ct. 269 , 92 L.Ed. 249 (1948).

The good people of California brought to state-of-art usage the device of racially restrictive covenants, which forbade altogether the ownership, and even its occupancy (except for servants), of residential property by “any person not of the Caucasian race.” California courts, at all levels, had a long history of upholding and vigorously enforcing these agreements by injunctions and suits for damages. The real estate industry exploited the exclusivity of existing covenants to boost sales and encouraged the filing of new restrictions. In practical and wide effect desirable residential areas became virtually unavailable, with some exceptions, to nonwhites, because of the breadth of coverage of the covenants which generally provided that

neither said premises, nor any part thereof, shall be used in any manner whatever or occupied by any Negro, Chinese, Japanese, Hindu, Armenian, Asiatic, or native of the Turkish empire, or descendant of the above named persons, provided, however, that such a person may be employed by a resident upon said property as a servant for such resident.

McGovney, Racial Residential Segregation by State Court Enforcement of Restrictive Agreements, Covenants or Conditions in Deeds is Unconstitutional, 33 Cal.L.Rev. 5, 15 (1945).

Not only were nonwhite persons barred from desirable areas by the existence of covenants, but even where no restrictions actually ran with the land, local boards of realtors, by custom and practice, and by so-called “codes of ethics,” bound themselves not to show or sell properties in “white” neighborhoods to nonwhites. Thus were created barriers restricting where people could live, enjoy their lives, and raise their families. In large measure, this is how racial minorities came to be where they were when this case was filed.

*751 In the same year the Supreme Court decided the Oyama case, it also decided in Shelley v. Kraemer, 334 U.S. 1 , 68 S.Ct. 836 , 92 L.Ed. 1161 (1948), that when the California courts enforced racial restrictive covenants by way of injunction, that amounted to “state action” by California, and that such enforcement violated the equal protection clause of the Fourteenth Amendment. Next, in Barrows v. Jackson, 346 U.S. 249 , 73 S.Ct. 1031 , 97 L.Ed. 1586 (1953), the Court for the same reason held that state courts could not allow covenantors to sue for damages for breaches of those agreements. However, by then, many residential patterns had already been fixed and the exclusion of nonwhites from residential areas was widespread and very effective.

In the intervening years, in Los Angeles and elsewhere generations of children had been assigned to schools in neighborhoods whose locations and constituent populations were shaped and maintained by discriminatory residential housing practices. Nor was this merely the accident of place and preference, for many forces combined to create segregation: state and city authorities, school boards, legislatures, businesses and public and private institutions all had some hand in the perpetuation of housing patterns. Consequently, this also affected school patterns, and the complexion of the public schools. Decisions about where schools would be built or maintained, the direction and sources of feeder patterns, the configuration of district boundaries, the planning of public transportation, and, above all, the public attitude about the role of schools in the neighborhoods, set in motion currents which ebbed and flowed, became eventually the focus of public debate, and then the subject of litigation.

Pre-Crawford Litigation

Progenitor to all modern school segregation cases is Brown v. Board of Education of Topeka, Shawnee County, Kansas, et al., 347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 (1954) (“Brown I”). There Chief Justice Earl Warren and the Court discarded the “separate but equal” rationale of Plessy v. Ferguson, 163 U.S. 537 , 16 S.Ct. 1138 , 41 L.Ed. 256 (1896), a doctrine which had for generations furnished justification for racial segregation in public facilities. The Court made a very simple statement. It said:

We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.

Brown I, 347 U.S. at 495 , 74 S.Ct. at 692 .

The Court invited submissions from the parties as to the form of relief to implement “the fundamental principle that racial discrimination in public education is unconstitutional.” Id. at 495-496 , 74 S.Ct. at 692-693 . A year later, May 31, 1955, having considered the complex judicial administration concerns implicit in its decision, the Court issued a final order:

the cases are remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases. (Emphasis supplied.)

Brown v. Board of Education of Topeka, Kansas, 349 U.S. 294, 301 , 75 S.Ct. 753, 757 , 99 L.Ed. 1083 (1955) (“Brown II”) (emphasis supplied).

The performance did not match the mandate. Litigation did not bring solution. Litigation continued.

Jackson v. Pasadena City School District, 59 Cal.2d 876 , 31 Cal.Rptr. 606 , 382 P.2d 878 (1963)

Prior to 1961, the City of Pasadena in Los Angeles County contained several junior high school zones, Washington, McKinley, and Eliot, into which various elementary school districts served as feeders. Lin *752 da Vista elementary school district had formerly fed into a fourth junior high school zone which withdrew from the Pasadena district. It then became necessary to determine where the Linda Vista pupils, all of them white, would be sent. Some parents feared their children might be required to attend Washington, whose enrollment was predominantly of Negroes and members of other minority groups. The parents threatened to seek withdrawal from the Pasadena district were this done. Although Washington was geographically nearer, the school board adopted new boundaries putting Linda Vista in the McKinley zone. The boundary changes permitted most white pupils to avoid attending schools with a high proportion of Negroes, while relegating Negro pupils to a single school.

Jackson, a black student, requestéd leave to transfer to the Eliot zone which was more convenient to his home than Washington. When his request was denied, he sued. The board’s demurrer was sustained. The California Supreme Court reversed. Chief Justice Gibson said for his unanimous court:

The boundaries of school zones are normally fixed on a neighborhood basis, and where racial imbalance exists in California schools it is usually caused by the fact that the Negro population tends to concentrate in certain areas due to economic factors and discrimination in housing. * * * A racial imbalance may be created or intensified in a particular school not only by requiring Negroes to attend but also by providing different schools for white students, who, because of proximity or convenience, would be required to attend it if boundaries were fixed on a nonracial basis.

Jackson, 59 Cal.2d at 881 , 31 Cal.Rptr. at 609 , 382 P.2d at 881 . The court laid down a guiding principle concerning the duty and obligation of boards of education in California.

So long as large numbers of Negroes live in segregated areas, school authorities will be confronted with difficult problems in providing Negro children with the kind of education they are entitled to have. Residential segregation is in itself an evil which tends to frustrate the youth in the area and to cause antisocial attitudes and behavior. Where such segregation exists it is not enough for a school board to refrain from affirmative discriminatory conduct. The harmful influence on the children will be reflected and intensified in the classroom if school attendance is determined on a geographic basis without corrective measures. The right to an equal opportunity for education and the harmful con sequences of segregation require that school boards take steps, insofar as reasonably feasible, to alleviate racial imbalance in schools regardless of its cause.

Id., 59 Cal.2d at 881 , 31 Cal.Rptr. at 609-610 , 382 P.2d at 881-882 . This principle stood as the law until 1979 when the voters opted, by Proposition I, to make it hard to undo the effects of decades of institutionalized discrimination.

The Crawford Litigation

It is of historical fact that the Supreme Court’s charge in the two Brown cases, that there be “all deliberate speed” in the elimination of segregated schools, has always encountered strong resistance. So also did Chief Justice Gibson’s ringing declaration in Jackson meet with stubborn opposition in California. In 1963, shortly after Jackson was decided, the Crawford suit was filed in Superior Court against the Los Angeles Unified School District to compel its board to prepare and implement a master plan for the eventual desegregation of the district. The course of that effort has been well chronicled in Judge Canby’s majority opinion and I shall not repeat it here. It is enough for this purpose that valiant efforts were made to persuade the District to do voluntarily what the United States Supreme Court and the California Supreme Court had held was its bounden duty.

When persuasion failed, even though the litigation was several times recessed to pursue settlement, trial commenced in October 1968. After some 65 court days, it *753 concluded in May 1969 in a judgment in favor of the plaintiffs. The court issued a writ of mandate to compel the District to submit and to implement a “meaningful desegregation plan” which would “realistically work within a reasonable period of time, having for its aim, purpose and object a racially nondiscriminatory unitary school system * * *.” The District appealed. The California Court of Appeal, Second District, reversed, rejecting Judge Gitelson’s findings of the existence of systemic and systematic policies of racial segregation. Crawford v. Board of Education of the City of Los Angeles, 120 Cal.Rptr. 334 , vacated, 17 Cal.3d 280 , 130 Cal.Rptr. 724 , 551 P.2d 28 (1976). The California Supreme Court granted hearing.

In Crawford v. Board of Education of the City of Los Angeles, 17 Cal.3d 280 , 130 Cal.Rptr. 724 , 551 P.2d 28 (1976), the Supreme Court vacated the intermediate appellate court’s judgment of reversal. It affirmed the trial court’s judgment issuing the writ of mandate. The opinion reviewed the Superior Court’s detailed findings, including the finding that the board

“has * * * since at least May of 1963, knowingly, affirmatively and in bad faith * * * by and through its affirmative policies * * * and practices, * * * segregated, de jure, its students. * * * ”

Justice Tobriner then further held:

The [trial] court based this finding on a number of affirmative actions which the board had taken over the relevant period with the knowledge that such acts would create and perpetuate segregated education within their district.

Id., 17 Cal.3d at 288 , 130 Cal.Rptr. at 728 , 551 P.2d at 32 . In my judgment this is an important decision upholding the trial judge’s finding of fact. Its significance appears later.

In sustaining the finding that segregation of the Los Angeles School District was de jure in nature, the court found it unnecessary to place its specific imprimatur on a resolution of the de jure/de facto terminology. It had already held 13 years previously in Jackson that affixing such a label was unnecessary, since under any appellation, the evil was the same and had to be exorcised. But, because four years later in Crawford II (1980) the same intermediate appellate court whose reversal of Judge Gitelson’s decision was itself reversed and vacated, rewrote history and denied that the de jure finding was valid, I set forth here Justice Tobriner’s exact language in Crawford I:

The defendant school board appeals from the trial court judgment, contending primarily that the segregated condition of its district’s schools should properly be characterized as “de facto” rather than “de jure” and that it owes no constitutional duty to alleviate such de facto school segregation. The findings in this case adequately support the trial court’s conclusion that the segregation in the defendant school district is de jure in nature. We shall explain, however, that we do not rest our decision on this characterization because we continue to adhere to our conclusion in Jackson that school boards in California bear a constitutional obligation to take reasonably feasible steps to alleviate school segregation “regardless of its cause.” ( 59 Cal.2d at p. 881 , 31 Cal.Rptr. 606 , 382 P.2d 878 ). Consequently, the trial court’s finding that the schools in the Los Angeles Unified School District are segregated, together with its conclusion that the defendant school board has failed to undertake reasonably feasible steps to desegregate its schools, are sufficient to sustain the trial court’s order compelling the school board to prepare and implement a plan which attempts to alleviate the segregation and the traditional harmful effects of segregation in its district’s schools.

17 Cal.3d at 285 , 130 Cal.Rptr. at 726 , 551 P.2d at 30 (emphasis added). Later the opinion detailed references to the bases on which the trial court had reached that conclusion.

Crawford II

As the majority opinipn sets forth, following the affirmance by the California *754 Supreme Court, in Crawford I, the case was remanded to the Superior Court for further proceedings.

The following is a chronology of subsequent proceedings:

October 3, 1977, the Board submitted its Plan II. The Plan involved pairing and clustering of some minority and white schools in grades four to eight, only, including mandatory re-assignment of some students.

September 12, 1978, Plan II went into effect for the school years 1978-79. Trial to determine the sufficiency of the Plan was set for June 4, 1979, and then continued to October, 1979.

October 17, 1979, Board asked leave to withdraw all mandatory aspects of Plan II, and to substitute an all-voluntary plan.

October 22, 1979, trial began on sufficiency of Plan II and of the proposed all-voluntary plan.

November 6, 1979, Proposition I was approved, amending California Constitution’s Due Process and Equal Protection provisions, and providing that

[N]othing * * * [in the California Constitution] imposes upon [the State, any official public entity, or board], any obligations or responsibilities which exceed those imposed by the Equal Protection Clause of the Fourteenth Amendment * * * with respect to the use of pupil school assignment or pupil transportation. * * * [N]o court of this state may [require] pupil school assignment or pupil transportation, (1) except to remedy a specific violation that would also [violate the Fourteenth Amendment], and (2) unless a federal court * * * would be permitted * * * to [require such remedy under the Fourteenth Amendment].

November 15, 1979, the Board applied for modification of the court’s orders of May 7, 1978, and May 30, 1979, which had required mandatory reassignment. The Board argued that there had been no de jure violations under federal law, that Judge Gitelson’s findings to that effect did not support such a conclusion, and that they were not res judicata or law of the case. There is no transcript of the argument. Both sides submitted briefs. In their Memorandum of Law, plaintiffs argued that there had indeed been findings of de jure segregation, which findings were final; that res judicata applied; and that the Board had not established that Proposition I was constitutional.

January 21, 1980, the Board filed a memorandum about the constitutionality of Proposition I. It argued that the trial court’s finding of de jure segregation was dictum, hence not necessary to the judgment, and not res judicata.

April 23, 1980, plaintiffs filed replies. They argued that the de jure issues had been pleaded, argued, and decided in their favor.

May 19, 1980, Judge Egly denied the application for modification. He held that Judge Gitelson’s 1970 finding was that the segregation was de jure. Hence he found it unnecessary to consider Proposition I because “the mandate here requires the same result as would be required under Federal decisional law.”

July 7,1980, Judge Egly filed findings of fact and conclusions of law. He ordered the Board to adopt a plan devised by the court providing for mandatory pairing and clustering of 144 elementary and 9 junior high schools, for magnet schools, for mandatory transportation and reassignment.

July 10, 1980, the Board appealed the orders of May 19 and July 7, 1980.

December 19, 1980, the California Court of Appeal filed its decision vacating Judge Egly’s orders of May 19, 1980 and July 7, 1980. Crawford v. Board of Education of the City of Los Angeles, 113 Cal.App.3d 633 , 170 Cal.Rptr. 495 (1980) (Crawford II).

Full and Fair Opportunity for Relitigating the Issues of De Jure Segregation

I am convinced that when Crawford II is read closely along with its mandate and with the subsequent history of this case there was no full and fair opportunity real *755 istically open to the plaintiffs to reinstate litigation of the de jure issues.

The California Court of Appeal went about the appeal before it with the obvious determination to get rid of the busing program ordered by the Superior Court and to uphold Proposition I. That court had tried to reverse Judge Gitelson’s orders when the case was first before it in 1975. Indeed, it had in fact rendered an opinion reversing the judgment ( 120 Cal.Rptr. 334 ), which the California Supreme Court unanimously vacated. In 1980 the Court of Appeal got a second chance. The Crawford II opinion rejected or found insignificant the factual findings made by the trial court. It disputed the materiality of the trial evidence that the Board had manipulated neighborhood schools, attendance areas, and boundaries, so as not only to impact existing segregation of schools, but to increase and worsen that impact; that it had adopted transfer and transportation policies which it knew could not cope with the immensity of the problems and the distances involved in the administration of the Los Angeles School District; that in respect of the allocation or withholding of funds, the selection of plant sites, assignment of teachers, and in dealing with such things as curriculum imbalances, the Board had, in the trial court’s opinion of the facts, pursued conduct which a qualified educator must surely have known would discriminatorily impact against racial minorities. See Crawford II, 113 Cal.App.3d 642 -643, 170 Cal.Rptr. at 501-502 .

The trial court found that the patterns of the Board’s conduct were not random or neutral, but were executed with a design to keep things as they were. The appellate court seized upon the absence of a discrete finding that there existed “a policy or program which denied admission to any school or required attendance at any school on the basis of race,” or an articulated “gerrymandering of attendance zones to create or preserve segregated schools.” Id. at 644 , 170 Cal.Rptr. at 502 . It concluded that de jure segregation existed “only in a Pickwickian sense, and was not true at all in the sense of federal law.” Id. at 646 , 170 Cal.Rptr. at 504 .

Nowhere did the appellate court consider the Supreme Court’s language in Crawford I that the findings “adequately support the trial court’s conclusion that the segregation in the defendant school district is de jure in nature,” as quoted above. But the point of this review is not a critique of that court’s dexterity with history nor its reading of its own Supreme Court’s decisions. The point is that Crawford II undid the factual findings of the trial court and then, by its mandate interposed a time straitjacket which made it not feasible to ask the trial court on remand to reopen the de jure questions which had supposedly become final in 1976.

The mandate remanded the case to the trial court for further proceedings but only those consistent with the Crawford II opinion. It reads:

The orders of May 19, 1980, and July 7, 1980, are vacated, and the matter is remanded to the trial court for further proceedings consistent with this opinion. It is not our intent to disrupt the operation of the schools during the present semester. Since our decision will not become final for thirty days, the parties have ample time to take whatever legal action they think desirable prior to the commencement of the next school semester. Our previous orders dated August 6, 1980, staying certain features of the trial court’s plan, are continued in force until further order of the court.

Id. at 656-657 , 170 Cal.Rptr. at 510 .

The legal action referred to could not be construed as meaning that counsel was free to persuade the trial court that the Crawford II court was wrong in holding that de jure segregation had not been proved. The mandate spoke to what the parties might do before the mandate came down — thirty days, unless, within that time the Supreme Court of California or the United States Supreme Court should issue a stay or grant hearing. The only steps the parties might take in the interim would be to apply for relief to a higher court prior *756 to the commencement of the next school semester.

The plaintiffs did indeed seek hearing by the California Supreme Court but hearing was denied them on March 11, 1981, without opinion. The very next day, on March 12, 1981, the remittitur of the California Court of Appeal issued.

In the subsequent hearings, after jurisdiction had been revested in the trial court, there was no feasible way for the plaintiffs or the trial court, had it been so minded, to reopen the trial record. It had all been litigated, and the Court of Appeal had foreclosed any return to that phase.

Herewith is the closing history:

March 16, 1981, Board adopts resolution dropping all mandatory aspects of the October, 1980 Plan III.

March 26, 1981, plaintiffs moved to enjoin “dismantling” of Plan III.

April 8, 1981, hearing on motion by Judge David Eagledon, Judge Egly having now disqualified himself. Plaintiffs’ motion is denied.

April 10, 1981, plaintiffs appeal denial of preliminary injunction.

April 14, 1981, California Court of Appeal denies application for temporary stay.

April 17, 1981, Judge Robert Lopez assigned to the case.

April 23, 1981, pre-trial conference held; continued to May 13, 1981.

May 4, 1981, Board files Statement Present of Status of the Case. Board contends that further litigation of de jure issues is precluded by the decision in Crawford II because it has held that there was no de jure segregation.

June 15, 1981, plaintiffs applied for TRO and preliminary injunction against continuing year-round schedules in the minority segregated schools, or placing any additional minority segregated schools on year-round schedule.

June 17, 1981, TRO denied.

June 19, 1981, Board submits desegregation plan for 1981-1982 school year.

June 24, 1981, preliminary injunction denied. Court rules that trial on Board’s desegregation plan shall be by written testimony only, and shall be submitted by August 12, 1981.

August 14, 1981, all pending matters ordered submitted on August 12, 1981.

September 10, 1981, court enters final approval of school board plan and orders discharge of writ of mandate; terminates jurisdiction except for determination of attorneys’ fees.

October 21, 1981, plaintiffs appeal order of September 10.

November 25, 1981, court enters final order terminating jurisdiction after awarding attorneys’ fees.

May 24, 1983, plaintiffs dismiss appeal from the September, 1981 order.

Final Conclusions

The Crawford litigation has had few parallels. The Supreme Court of the United States held that segregated public educational schools violate the Fourteenth Amendment.

Los Angeles maintained a public school system which was — and today is — racially segregated.

The plaintiffs sued to require Los Angeles Unified School District to adopt and implement a realistic plan for bringing about a unitary school system.

The plaintiffs won. The trial court found that Los Angeles had been maintaining a dual school system which discriminated against Black children and the children of other racial minorities.

The trial court ordered the school board to prepare for, make a plan for, and begin to bring about a desegregated school system.

The Supreme Court of California upheld the judgment and finding that Los Angeles’ segregated system was de jure in nature, not merely ill from natural causes.

The trial court determined that segregation in Los Angeles schools was so perva *757 sive and ingrained that only by the use of all measures, including pupil assignment and transportation could substantial relief be accomplished. It ordered a mandatory pupil assignment and transportation (“busing”) plan into effect.

Resentment against busing and pupil assignment plans culminated in the passage of Proposition I, after one of the ugliest political campaigns in California history. That new law in effect forbade such school plans unless a district were found so deeply segregated as a command of state law, that is de jure, that the Fourteenth Amendment would require assignment and busing.

The trial judge held that the plaintiffs had pleaded and proved de jure segregation; the court had found de jure segregation and the Supreme Court had sustained that finding.

An intermediate appellate court ruled that there had never been de jure segregation, and that the trial court could have found its existence only in a “Pickwickian” sense. It set aside the finding, and ordered the case restructured “consistent with” the new light. The finding was not “Pickwickian;” the suggestion is Rabelaisian.

The plaintiffs lost.

Indeed, this is a unique case, a case in which judges awarded victory to the lawful winners. And then the rule-makers changed the rules, and the other judges annulled the victory.

Some of our brothers emphasize the importance of respect for established rules of finality — of res judicata, of issue preclusion. It is ironic that the rules themselves were altered here to set aside that very principle of finality.

The plaintiffs lost their case, but the struggle they fought was neither vain and is not finished. To the extent the present majority decision may make possible another try, in part, I concur. From so much of this court’s opinion as gives respect to what I believe to be disgraceful conduct by a great state, I respectfully dissent.