Diaz v. San Jose Unified School District

r,- •, T .i CHOY, Circuit Judge,

, TTT. T with whom WALT AO_, , ., T LACE and SNEED, Circuit Judges, iom, J dissentmg;

The majority depicts the Board of Trustees of the San Jose Unified School District (the “Board”) as an insensitive body eager to seize upon opportunities to maintain or exacerbate racial segregation in the school district for the past twenty years. One reading the majority opinion gets the impression that the Board’s conduct was unexplainable and inexcusable, and that the district judge’s ruling in the Board’s favor has no redeeming feature whatever. The majority, however, ignores many facts critjCal to the district court’s ruling; then the majority makes its own findings of fact to SUpp0rt its result,

Even with the facts that have been ignored by the majority, I may not have come to the same conclusions as did Judge Peck-ham if I had been the trial judge. But _ „ ,. . , . , Judge Peckham has been with this complex case since November of 1971. He has personally observed the witnesses and has had the opportunity to test their believability. He thus was in a far better position than are we determine where the truth lies. See Columbus Board of Education v. Penick, 443 U.S. 449, 470-71, 99 S.Ct. 2941, 2983-84, 61 L.Ed.2d 666 (1979) (Stewart, J., concurring). I simply cannot say that he was so wrong as to justify this court’s finding the facts anew. Accordingly, I dissent.

*676I. The Legal Standard Applied by the District Court

For the most part, the majority does not take issue with the legal standard applied by the district court. In Part III of the opinion, however, the majority states that “the district court erred in failing to give weight to the cumulative impact of the evidence.” Maj. op. at 674. To the extent that the majority suggests that the district court applied an improper legal standard, the majority is clearly wrong. Although the district court reached a different conclusion from the majority, it certainly reached its result considering the evidence as a whole. See, e.g., 518 F.Supp. at 629 (“the court will ... attempt to explain ... why the court does not feel that the evidence, on balance, supports a finding of segregative intent____”); id. at 638 (“The refusal to date to consider bussing ... is not sufficient, in the context of the rest of the evidence in this case, to support a finding of liability.”). The majority is only taking issue with the district court’s factual findings. To these I now turn.

II. The District's Duty Under State Law

A theme recurring throughout the majority opinion is that failure of the Board to take steps allegedly required by state laws and state Board of Education guidelines convincingly proves that the Board segregated intentionally. To show a violation of the Fourteenth Amendment a plaintiff must prove more than that a school district took actions that created or maintained ethnic imbalance. Doing so with intent to discriminate must be proved. See Columbus Board of Education v. Penick, 443 U.S. 449, 464, 99 S.Ct. 2941, 2949, 61 L.Ed.2d 666 (1979); Keyes v. School District No. 1, 413 U.S. 189, 208, 93 S.Ct. 2686, 2697, 37 L.Ed.2d 548 (1973).

Under the California Constitution, the school districts do have an affirmative obligation “to take reasonably feasible steps” to alleviate school segregation. Crawford v. Board of Education, 458 U.S. 527, 535-36, 102 S.Ct. 3211, 3216-17, 73 L.Ed.2d 948 (1982); McKinny v. Oxnard Union High School District Board of Trustees, 31 Cal.3d 79, 92, 642 P.2d 460, 467, 181 Cal.Rptr. 549, 556 (1982). Assuming arguendo that plaintiffs have shown facts constituting a violation of state law, the majority’s attempt to transform a breach of a state-imposed duty into a Fourteenth Amendment violation cannot stand. Discriminatory intent means that the actor selected his course of conduct “because of” rather than “in spite of” its adverse effects upon an identifiable group. Personnel Administrator v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 (1979). The addition of an affirmative duty under state law to alleviate racial imbalance does not transform inaction into intentional discrimination. Inaction in the face of an affirmative duty to desegregate may suggest a higher probability of discriminatory intent than does inaction when no such duty exists. But the emphasis the majority places upon what it believes are state law violations leads me to fear that it wishes to bludgeon the San Jose Unified School District in federal court for a violation of state law. See Sullivan v. Murphy, 478 F.2d 938, 972 (D.C.Cir.), cert. denied, 414 U.S. 880, 94 S.Ct. 162, 38 L.Ed.2d 125 (1973) (when constitutional rights are infringed, federal rather than state law defines those rights); see also Pennhurst State School & Hospital v. Halderman, — U.S. -, 104 S.Ct. 900, 911, 79 L.Ed.2d 67 (1984); Watson v. Tarpley, 59 U.S. (18 How.) 517, 520, 15 L.Ed. 509 (1855) (“Whilst it will not be denied, that the laws of the several States are of binding authority upon ... persons and property within their appropriate jurisdiction, it is perfectly clear that those laws cannot ... destroy or control the rights of parties litigant to whom the right of resort to [federal] courts has been secured by the laws and constitution [of the United States].”).

III. The Proposals to Ameliorate Segregation

The majority observes that various organizations presented proposals to the Board that “could have ameliorated” the segregation, some of which allegedly presented no threat to the neighborhood *677school policy. See maj. op. at 665. The majority concludes that the Board’s failure to adopt one or more of these proposals conclusively demonstrates segregative intent. I disagree.

Although adherence to a neighborhood school policy in an area of de facto segregation probably will perpetuate the segregation in the schools, most federal courts view the neighborhood school system as deeply rooted in American culture and soundly backed by nondiscriminatory reasons, see Keyes v. School District No. 1, 413 U.S. 189, 245-48, 93 S.Ct. 2686, 2715-17, 37 L.Ed.2d 548 (Powell, J., concurring in part and dissenting in part); United States v. Jefferson County Board of Education, 372 F.2d 836, 879 (5th Cir.1966), aff'd en banc, 380 F.2d 385, cert. denied, 389 U.S. 840, 88 S.Ct. 67, 19 L.Ed.2d 103 (1967); Deal v. Cincinnati Board of Education, 369 F.2d 55, 60 (6th Cir.1966); see also Crawford v. Board of Education, 458 U.S. 527, 537 n. 15, 102 S.Ct. 3211, 3218 n. 15, 73 L.Ed.2d 948 (1982); United States v. Texas Education Agency (Austin Independent School District), 564 F.2d 162, 168 (5th Cir.1977), cert. denied, 443 U.S. 915, 99 S.Ct. 3106, 61 L.Ed.2d 879 (1979). Adherence to a neighborhood school system could easily be explained on nondiscriminatory grounds, and such adherence, without more, is thus no indication of discriminatory intent.

The majority finds discriminatory intent partly because the Board allegedly “deliberately ignored state guidelines in making decisions and consistently refused to implement suggestions for desegregation---The Board sited new schools, rebuilt the Field Act schools, used portables and closed schools in a manner that maintained and, in some instances, intensified ethnic imbalance.” Maj. op. at 674. The majority, however, chooses to ignore the district court’s finding that

[w]hile the district failed to consider the state guidelines on evaluating attendance areas, the fact is that, absent a major reformation of the attendance patterns in the entire district and a complete abandonment of the concept of neighborhood schools, the formal consideration of the state guidelines would have had no effect on the selection of sites and the construction of these schools.

518 F.Supp. at 630 (emphasis added). The majority also fails to consider this part of the Westinghouse Learning Corporation’s report:

The consultants considered a number of possibilities wherein buildings might be located so as to enhance integration without bussing. There is no such possibility. In fact, the current community or neighborhood school pattern provides the least amount of bussing for all students when compared to the educational park proposals.

(Emphasis added.) As the district court pointed out, the Westinghouse Learning Corporation, the Building Master Plan Task Group, and Dr. Knight, the school district superintendent, all concluded that the only realistic solution to segregation in the school district was some form of two-way bussing. 518 F.Supp. at 631, 637; 412 F.Supp. at 324.

In view of these authoritative conclusions, the Board could have concluded that any real progress toward desegregation could be achieved only by abandoning the neighborhood school concept. Certainly, several proposals presented to the Board assertedly would work within the neighborhood school concept. Considering the shape of the school district and the extent of de facto segregation within it, however, the Board may very well have decided, and decided reasonably, that implementation of any, or even of all, of the proposals to enhance integration without bussing would have produced at most token progress toward desegregation. The district court could not fault the Board for rejecting these proposals, and I cannot say that the court was clearly wrong in its finding.

The majority also argues that the school district’s rejection of bussing as a means to desegregate is unreasonable because it already busses one-third of its students on a daily basis. Maj. op. at 669.

*678Except for students with special needs such as the physically handicapped, all students who are bussed are transported only within their attendance areas. See 412 F.Supp. at 314-15. Equating that type of bussing with cross-town bussing for integration is somewhat simplistic. In November of 1979 the voters of the State of California amended the state constitution to curtail the power of state courts to remedy de facto segregation by ordering bussing or school reassignment. Their purposes, as stated in the measure itself, were:

making the most effective use of the limited financial resources now and prospectively available to support public education, maximizing the educational opportunities and protecting the health and safety of all public school pupils, enhancing the ability of parents to participate in the educational process, preserving harmony and tranquility in this state and its public schools, preventing the waste of scarce fuel, resources, and protecting the environment.

Crawford v. Board of Education, 458 U.S. 527, 543 n. 29, 102 S.Ct. 3211, 3221 n. 29, 73 L.Ed.2d 948 (1982). The Supreme Court stated that these purposes “are legitimate, nondiscriminatory objectives.” Id. at 545, 102 S.Ct. at 3222. The school district, therefore, had legitimate reasons for rejecting the bussing proposals. The district court so found. As we are reviewing the district court’s findings for clear error, I find no basis on which to disagree with the district court.

IV. Catering to a Pro-Segregation Public

The majority also castigates the Board for “cater[ing] to a pro-segregation public,” maj. op. at 673, and “transforming the QUEST committee from a group of concerned citizens to one dominated by those opposed to desegregation.” Id. at 675.

It is difficult to ignore the public’s powerful and strident general opposition to bussing. A typical community reaction is shown in the story of Wilson Junior High School:

[T]he district considered transferring all Wilson Junior High School students to adjacent Markham Junior High School, with only 7.2% Spanish-surnamed students. Because Markham was conducting double sessions, the proposed transfer was contemplated as a temporary measure pending location of a site in the southernmost portion of the northern downtown core for a magnet school with a large “integrated student body.” However, community opposition developed, and a parents’ meeting held at Markham Junior High School indicated mass hostility to bussing students from Wilson to Markham.

412 F.Supp. at 322.

Community opposition also abounded when the Board formed QUEST. The district court found that the Board agreed to open the membership of QUEST to more people under pressure from members of the community who feared the outcome of QUEST’S work. Furthermore, 1500 people, mostly opposed to the work of QUEST, attended the meeting at which QUEST’S membership was opened. Maj. op. at 672 n. 16; 518 F.Supp. at 639; see also 412 F.Supp. at 325.

Certainly, strong community opposition was not a force to be taken lightly by the Board. As the QUEST report stated:

Even if the present school board were to adopt a plan of forced integration, it could not be carried out in the face of an opposition constituting 55% of the community — let alone 82%. Plans adopted and laws passed can soon be repealed, and subsequent elections would install men in office intending just that. In addition, any plan would require bond issues to be passed by voters who oppose the plan.

QUEST, Report to the Board of Education 93 (1970).

Subsequent events demonstrated the correctness of the writer’s observation. During the time of this litigation, the Board needed voter authorization for bond issues to finance the construction of new schools. Voters rejected bond issues for this pur*679pose in 1969, 1971, 1972, and 1973. 412 F.Supp. at 324-25. Moreover, in a 1972 initiative measure, known as Proposition 21, voters of California repealed the state guidelines defining racial imbalance that were heavily relied on by the majority. See 412 F.Supp. at 327-28; Santa Barbara School District v. Superior Court, 13 Cal.3d 315, 530 P.2d 605, 118 Cal.Rptr. 637 (1975) (upholding the validity of the repeal-er). Finally, in 1979 the California voters amended the Equal Protection Clause of the California Constitution to curtail court-ordered bussing and pupil reassignment, See Crawford v. Board of Education, 458 U.S. 527, 531-32, 102 S.Ct. 3211, 3214-15, 73 L.Ed.2d 948 (1982).

In the face of this powerful opposition to forced bussing, the district court found that the Board was doing the best it could in its dealings with QUEST.

[P]rior to the “opening up” of the QUEST membership, there is no evidence that the Board attempted to direct the findings of QUEST or to otherwise interfere with its operations. To the contrary, the evidence indicates that school officials did their utmost to ensure, when QUEST was organized and began its work, that articulate, concerned representatives of all segments of the community were involved, and to ensure that those involved in QUEST desired to develop proposals to integrate the school system, not to sabotage the effort----

[When QUEST’S membership was opened up,] the Board made subsequent efforts to recruit more people from other, more supportive segments of the community to join in the effort and to presumably counter-balance the influx of people hostile to QUESTs mission----

... [T]he Board’s initial organization of QUEST, and the efforts both then and at the later point of reconstitution [were made] to ensure that the community was well represented and that persons sympathetic to the work of QUEST were in the positions of leadership in both the original and reconstituted organization ____

Indeed, the Board’s persistence in seeing the work of QUEST go forward, in attempting to protect it from being overwhelmed by those hostile to its work, and in continuing, despite pressure, to encourage QUEST to formulate proposals for the integration of the district — even if for the long term — [supports] a finding that the Board was trying its best, in a difficult situation----

518 F.Supp. at 639-40. I therefore cannot agree with the majority’s assertion that the only picture of the Board emerging from the evidence shows it as only paying lip service to QUEST while it was actually and intentionally inimical to it and its work.

y. phe Bond Issue Elections

The majority regards the Board-s state. mentg in the b(md igsue electiong ag condu_ give on the issue of intent s&¡ maj- op at 672-673. As the district court pointed out, however, it is reasonable to view these statements differently:

The statements concerning the spread of double sessions and the need to transport students to the other end of the district if the var¡ous issues did not pass seem, in context, to be simply realistic factual statements of the results which would flow from the failure of the bond issues to pass. _ _ There is n0 particular emphasis given to them, nor, in context, is there any suggestion that the school board meant to do anything but point to the many burdens which would be placed on the students and the district in general by such a failure of the bond issue to pass,

518 F.Supp. at 638-39.

Some pro-bond voters may have been motivated by a fear or dislike of Spanishsurnamed students in southern facilities; however, they may also have been motivated by a fear of congestion or a multitude of other considerations,

412 F.Supp. at 332.

VI. Conclusion

Whether actions that separate students racially amount to intentional segregation “is an issue that can present very difficult *680and subtle factual questions.” Columbus Board of Education v. Penick, 443 U.S. 449, 470-71, 99 S.Ct. 2941, 2983, 61 L.Ed.2d 666 (1979) (Stewart, J., concurring); see United States v. Yellow Cab Co., 338 U.S. 338, 340, 70 S.Ct. 177, 178, 94 L.Ed. 150 (1943). To us, Judge Peckham’s exhaustive and thoughtful opinion “appears to represent the considered judgment of an able trial judge, after patient hearing ____” Yellow Cab, 338 U.S. at 341, 70 S.Ct. at 179. The majority’s voluminous review of the evidence unfavorable to the judgment demonstrates only that the trial court would have been justified if it had reached a contrary conclusion. Under “not clearly erroneous” review, then, I would affirm.