Slavery and involuntary servitude

Stacey L. Smith, “California’s Last Slave Case,” New York Times, March 5, 2014

 

Joseph R. Grodin, “The California Supreme Court and State Constitutional Rights: The Early Years”

Joseph R. Grodin, “The California Supreme Court and State Constitutional Rights: The Early Years,” 31 Hastings Const. L. Q. 141 (2004)

I. Slavery and the Court

The delegates to the 1849 constitutional convention unanimously approved a proposal by one of the delegates, William Shannon, to prohibit slavery-a proposal which became article I, section 18 of the new constitution. The motivation behind that proposal was as much pragmatic as idealistic. Shannon deplored slavery, but his constituency, mainly miners in a mining district along the Yuba River, deplored slave owners, not necessarily because they kept slaves, but because they located claims in the names of their slaves. Moreover, many delegates opposed slavery because they believed it would create ruinous competition for free white laborers. Clearly the delegates were not free from racism: a proposal to prohibit ‘free persons of color from immigrating to and settling in the State ‘ was approved by the committee on article I, though it was defeated in the Committee of the Whole, perhaps due to fear that the provision would complicate California’s admission as a state.

Despite the constitutional prohibition, the issue of slavery, and the broader issue of North versus South, continued to divide Californians. Indeed, from the time of California’s admission as a state in 1850 to the time of the Civil War the state was deeply divided between pro-slavery and anti-slavery factions within the dominant Democratic party, and during the early years the pro-slavery (or ‘Chivalry‘) faction–except for the very quick emergence and decline of the Know-Nothing party in 1855-was in control. Charles W. McCurdy observes that every California congressman elected in the mid-1850’s grew up in a slave state, and of the seven justices who served on the California Supreme Court between 1852 and 1857, all but two came from the South, and one of these two — Alexander Wells of New York City-had been a supporter of John C. Calhoun in his 1844 bid for the presidency. The anti-slavery faction did not achieve ascendance until just before the Civil War. [fn. 20: . In re Carter Perkins and Robert Perkins, 2 Cal. 424 (1852).

Six years later, however, in 1858, the court confronted another fugitive slave case, and this time the court’s response was a bit different. Charles Stovall, who resided in Mississippi, came to California in 1857 — ‘for his health‘ he asserted, intending to return within eighteen months-and brought with him Archy, a ‘family negro servant‘ (otherwise described in the opinion as a slave) who was nineteen years of age. Arriving in Sacramento, he hired Archy out for ‘upwards of a month‘ while Stovall taught a private school. After two months, Stovall placed Archy on a river steamer bound for San Francisco, with the intention of sending him, in charge of an ‘agent,‘ back to Mississippi, but Archy escaped from the boat. Stovall applied to a justice of the peace for an arrest warrant, which was issued. Archy was apprehended and held in the city prison of Sacramento, but the local police chief declined to turn him over to Stovall, so Stovall sought a writ of habeas corpus pursuant to the state Fugitive Slave Law. Two justices of the supreme court considered the case: David Terry (who had become chief justice) and Peter Burnett. Stephen Field, appointed to the supreme court the previous year, was on leave from the court, and out of the state at the time Archy’s case was decided. As frequently occurred during this period, the decision was a two-justice opinion.

As described by Justice Burnett, the ‘case has excited much interest and feeling, and gives rise to many questions of great delicacy [not so much because of] the rights of the parties immediately concerned in this particular case, as the bearing of the decision upon our future relations with our sister States‘– meaning, of course, the states in the South. After considerable and not altogether consistent wandering through the thickets of precedent concerning the right of slave-owning citizens to bring their slaves with them when traveling to a state in which slavery is not permitted, Justice Burnett arrived at the following principle: a ‘mere visitor [who] comes only for pleasure or health, and who engages in no business while here, and remains only for a reasonable time‘ is permitted to bring his personal attendant, even if that be a slave, but ‘[i]f the party engages in any business himself, or employ his slave in any business, except as mere personal attendant upon himself, or family, then the character of visitor is lost, and the slave is entitled to freedom.‘ And, said Justice Burnett, the prohibition of slavery contained in article I, section 18 is self-executing, and requires no legislation for its implementation, Justice Anderson’s statement to the contrary in Perkins notwithstanding.

By this reasoning, Stovall should have lost his case–and would have, said Justice Burnett, but for the circumstances and the consideration that he presumably had some reason to believe, from the opinions in Perkins, that the constitutional provision would have no immediate operation. Declaring its intent to apply the rules strictly in the future, Justice Burnett decided that the rule announced in Archy’s case should not apply to Archy, and that he should be returned to his master. Chief Justice Terry concurred.

In anti-slavery circles, the court’s opinion was not well received. San Francisco’s Daily Alta California (which was owned at the time by David Broderick) criticized Justice Burnett’s opinion for ‘setting forth a rule and then not follow it,‘ and characterized it as a ‘crowning absurdity and the greatest mass of legal contradictions that has ever come under our notice. ‘Both justices, the newspaper proclaimed, ‘have not only disgraced themselves but have brought odium on the state by this decision, and rendered the Supreme Bench of California a laughing stock in the eyes of the world. ‘Joseph G. Baldwin, who succeeded Burnett on the court, sarcastically summarized the case as holding that the constitution does not apply to young men traveling for their health; that it does not apply for the first time, and that the decisions of the supreme court are not to be taken as precedents. Even Justice Field, who did not participate in the decision, made known his disagreement with the court’s ruling.

There was a surprising and gratifying (if somewhat confusing) sequel to the case. Following the supreme court’s decision, Archy, after again escaping and being recaptured, was put on a boat to San Francisco for transport back to Mississippi, but in San Francisco a friend of Archy by the name of James Riker sought a second writ of habeas corpus, this time for the release of Archy on the ground he was a slave. That case came to be heard before a state judge in San Francisco, but while it was pending Stovall invoked the jurisdiction of a United States Commissioner (George Pen Johnson) on the ground (inconsistent with Stovall’s previous declarations) that Archy had escaped from Mississippi, and at the request of Stovall’s lawyers, Archy was turned over to the custody of Commissioner Johnson. On April 14, 1858, Johnson decided that Archy was not a fugitive slave after all, and discharged him from custody.

[cite: In re Archy, 9 Cal. 147 (1858)].

 

Stacey L. Smith, “Freedom for California’s Indians”

 

Miscegenation

Perez v. Sharp (1948), 32 Cal.2d 711

Traynor, J.:

In this proceeding in mandamus, petitioners seek to compel the County Clerk of Los Angeles County to issue them a certificate of registry and a license to marry. In the application for a license, petitioner Andrea Perez states that she is a white person and petitioner Sylvester Davis that he is a Negro. Respondent refuses to issue the certificate and license, invoking Civil Code, section 69, which provides: “. . . no license may be issued authorizing the marriage of a white person with a Negro, mulatto, Mongolian or member of the Malay race.”

The regulation of marriage is considered a proper function of the state. It is well settled that a legislature may declare monogamy to be the “law of social life under its dominion,” even though such a law might inhibit the free exercise of certain religious practices. If the miscegenation law under attack in the present proceeding is directed at a social evil and employs a reasonable means to prevent that evil, it is valid regardless of its incidental effect upon the conduct of particular religious groups. If, on the other hand, the law is discriminatory and irrational,   it unconstitutionally restricts not only religious liberty but the liberty to marry as well.

Marriage is thus something more than a civil contract subject to regulation by the state; it is a fundamental right of free men. There can be no prohibition of marriage except for an important social objective and by reasonable means.  No law within the broad areas of state interest may be unreasonably discriminatory or arbitrary. The right to marry is as fundamental as the right to send one’s child to a particular school or the right to have offspring. Indeed, “We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race.” Skinner v. Oklahoma (1941). Legislation infringing such rights must be based upon more than prejudice and must be free from oppressive discrimination to comply with the constitutional requirements of due process and equal protection of the laws.

Since the right to marry is the right to join in marriage with the person of one’s choice, a statute that prohibits an individual from marrying a member of a race other than his own restricts the scope of his choice and thereby restricts his right to marry. It must therefore be determined whether the state can restrict that right on the basis of race alone without violating the equal protection of the laws clause of the United States Constitution. Whether or not a state could base similar measures on the peril caused by a national emergency in the face of the equal protection of the laws clause of the United States Constitution, which does not apply to the federal government, it clearly could not make such a distinction based on ancestry in the absence of an emergency. A state law prohibiting members of one race from marrying members of another race is not designed to meet a clear and present peril arising out of an emergency. In the absence of an emergency the state clearly cannot base a law impairing fundamental rights of individuals on general assumptions as to traits of racial groups.

It has been said that a statute such as section 60 does not discriminate against any racial group, since it applies alike to all persons whether Caucasian, Negro, or members of any other race. The decisive question, however, is not whether different races, each considered as a group, are equally treated. The right to marry is the right of individuals, not of racial groups. The equal protection clause of the United States Constitution does not refer to rights of the Negro race, the Caucasian race, or any other race, but to the rights of individuals.

In determining whether the public interest requires the prohibition of a marriage between two persons, the state may take into consideration matters of legitimate concern to the state. Thus, disease that might become a peril to the prospective spouse or to the offspring of the marriage could be made a disqualification for marriage. Such legislation, however, must be based on tests of the individual, not on arbitrary classifications of groups or races, and must be administered without discrimination on the grounds of race.

The parties, however, have argued at length the question whether the statute is arbitrary and unreasonable. They have assumed that under the equal protection clause the state may classify individuals according to their race in legislation regulating their fundamental rights. If it be assumed that such a classification can validly be made under the equal protection clause in circumstances besides those arising from an emergency, the question would remain whether the statute’s classification of racial groups is based on differences between those groups bearing a substantial relation to a legitimate legislative objective.

Respondent has sought to justify the statute by contending that the prohibition of intermarriage between Caucasians and members of the specified races prevents the Caucasian race from being contaminated by races whose members are by nature physically and mentally inferior to Caucasians. Respondent submits statistics relating to the physical inferiority of certain races. Most, if not all, of the ailments to which he refers are attributable largely to environmental factors. Moreover, one must take note of the statistics showing that there is a higher percentage of certain diseases among Caucasians than among non-Caucasians. The categorical statement that non-Caucasians are inherently physically inferior is without scientific proof. In recent years scientists have attached great weight to the fact that their segregation in a generally inferior environment greatly increases their liability to physical ailments. In any event, generalizations based on race are untrustworthy in view of the great variations among members of the same race.

The rationalization, therefore, that marriage between Caucasians and non-Caucasians is socially undesirable because of the physical disabilities of the latter, fails to take account of the physical disabilities of Caucasians and fails also to take account of variations among non-Caucasians. The Legislature is free to prohibit marriages that are socially dangerous because of the physical disabilities of the parties concerned. The miscegenation statute, however, condemns certain races as unfit to marry with Caucasians on the premise of a hypothetical racial disability, regardless of the physical qualifications of the individuals concerned. If this premise were carried to its logical conclusion, non-Caucasians who are now precluded from marrying Caucasians on physical grounds would also be precluded from marrying among themselves on the same grounds. The concern to prevent marriages in the first category and the indifference about marriages in the second reveal the spuriousness of the contention that intermarriage between Caucasians and non-Caucasians is socially dangerous on physical grounds.

Respondent also contends that Negroes, and impliedly the other races specified in section 60, are inferior mentally to Caucasians. It is true that in the United States catalogues of distinguished people list more Caucasians than members of other races. It cannot be disregarded, however, that Caucasians are in the great majority and have generally had a more advantageous environment, and that the capacity of the members of any race to contribute to a nation’s culture depends in large measure on how freely they may participate in that culture. There is no scientific proof that one race is superior to another in native ability. The date on which Caucasian superiority is based have undergone considerable reevaluation by social and physical scientists in the past two decades. Although scientists do not discount the influence of heredity on the ability to score highly on mental tests, there is no certain correlation between race and intelligence. There have been outstanding individuals in all races, and there has also been wide variation in the individuals of all races. In any event the Legislature has not made an intelligence test a prerequisite to marriage. If respondent’s blanket condemnation of the mental ability of the proscribed races were accepted, there would be no limit to discriminations based upon the purported inferiority of certain races. It would then be logical to forbid Negroes to marry Negroes, or Mongolians to marry Mongolians, on the ground of mental inferiority, or by sterilization to decrease their numbers.

Respondent contends that even if the races specified in the statute are not by nature inferior to the Caucasian race, the statute can be justified as a means of diminishing race tension and preventing the birth of children who might become social problems. The effect of race prejudice upon any community is unquestionably detrimental both to the minority that is singled out for discrimination and to the dominant group that would perpetuate the prejudice. It is no answer to say that race tension can be eradicated through the perpetuation by law of the prejudices that give rise to the tension. Nor can any reliance be placed on the decisions of the United States Supreme Court upholding laws requiring segregation of races in facilities supplied by local common carriers and schools, for that court has made it clear that in those instances the state must secure equal facilities for all persons regardless of race in order that no substantive right be impaired. In the present case, however, there is no redress for the serious restriction of the right of Negroes, mulattoes, Mongolians, and Malays to marry; certainly there is none in the corresponding restriction of the right of Caucasians to marry. A member of any of these races may find himself barred by law from marrying the person of his choice and that person to him may be irreplaceable. Human beings are bereft of worth and dignity by a doctrine that would make them as interchangeable as trains.

The rationalization that race discrimination diminishes the contacts and therefore the tensions between races would perpetuate the deprivation of rights of racial minorities. It would justify an abridgment of their privilege of holding office, of jury service, of entering the professions. The courts have made it clear that these privileges are not the prerogatives of any race.

Respondent maintains that Negroes are socially inferior and have so been judicially recognized, and that the progeny of a marriage between a Negro and a Caucasian suffer not only the stigma of such inferiority but the fear of rejection by members of both races. If they do, the fault lies not with their parents, but with the prejudices in the community and the laws that perpetuate those prejudices by giving legal force to the belief that certain races are inferior. If miscegenous marriages can be prohibited because of tensions suffered by the progeny, mixed religious unions could be prohibited on the same ground.

For many years progress was slow in the dissipation of the insecurity that haunts racial minorities, for there are many who believe that their own security depends on its maintenance. Out of earnest belief, or out of irrational fears, they reason in a circle that such minorities are inferior in health, intelligence, and culture, and that this inferiority proves the need of the barriers of race prejudice. Careful examination of the arguments in support of the legislation in question reveals that “there is absent the compelling justification which would be needed to sustain discrimination of that nature.” Certainly the fact alone that the discrimination has been sanctioned by the state for many years does not supply such justification.

A statute regulating fundamental rights is clearly unconstitutional if it cannot be reasonably applied to accomplish its purpose. This court therefore cannot determine the constitutionality of the statute in question on the assumption that its provisions might, with sufficient definiteness, be applied to persons not of mixed ancestry. The only reference made in the statute to persons of mixed ancestry is the prohibition of marriages between a “white person” and a “mulatto.” Even the term “mulatto” is not defined. The lack of a definition of that term leads to a special problem of how the statute is to be applied to a  person, some but not all of whose ancestors are Negroes. Even more uncertainty surrounds the meaning of the terms “white persons,” “Mongolians,” and “members of the Malay race.”

If the statute is to be applied generally to persons of mixed ancestry the question arises whether it is to be applied on the basis of the physical appearance of the individual or on the basis of a genealogical research as to his ancestry. If the physical appearance of the individual is to be the test, the statute would have to be applied on the basis of subjective impressions of various persons. Persons having the same parents and consequently the same hereditary background could be classified differently. On the other hand, if the application of the statute to persons of mixed ancestry is to be based on genealogical research, the question immediately arises what proportions of Caucasian, Mongolian, or Malayan ancestors govern the applicability of the statute. Is it any trace of Mongolian or Malayan ancestry, or is it some unspecified proportion of such ancestry that makes a person a Mongolian or Malayan within the meaning of section 60?

In summary, we hold that sections 60 and 69 are not only too vague and uncertain to be enforceable regulations of a fundamental right, but that they violate the equal protection of the laws clause of the United States Constitution by impairing the right of individuals to marry on the basis of race alone and by arbitrarily and unreasonably discriminating against certain racial groups.

Let the peremptory writ issue as prayed.

CARTER, J., concurring.

It is, of course, conceded that the state in the exercise of the police power may legislate for the protection of the health and welfare of the people and in so doing may infringe to some extent on the rights of individuals. But it is not conceded that a state may legislate to the detriment of a class — a minority who are unable to protect themselves, when such legislation has no valid purpose behind it. Nor may the police power be used as a guise to cloak prejudice and intolerance. Prejudice and intolerance are the cancers of civilization.

SHENK, J. I dissent.

It will be shown that such laws have been in effect in this country since before our national independence and in this state since our first legislative session. They have never been declared unconstitutional by any court in the land although frequently they have been under attack. It is difficult to see why such laws, valid when enacted and constitutionally enforceable in this state for nearly 100 years and elsewhere for a much longer period of time, are now unconstitutional under the same Constitution and with no change in the factual situation. It will also be shown that they have a valid legislative purpose even though they may not conform to the sociogenetic views of some people. When that legislative purpose appears it is entirely beyond judicial power, properly exercised, to nullify them.

 

Daniel HoSang, “Introduction,” to HoSang, Racial Propositions: Ballot Initiatives and the Making of Postwar California

 

Public housing and referenda

Cal. Constitution Art. XXXIV

CALIFORNIA CONSTITUTION

ARTICLE 34 PUBLIC HOUSING PROJECT LAW

Section 1. No low rent housing project shall hereafter be developed, constructed, or acquired in any manner by any state public body until, a majority of the qualified electors of the city, town or county, as the case may be, in which it is proposed to develop, construct, or acquire the same, voting upon such issue, approve such project by voting in favor thereof at an election to be held for that purpose, or at any general or special election. For the purposes of this Article the term “low rent housing project” shall mean any development composed of urban or rural dwellings, apartments or other living accommodations for persons of low income, financed in whole or in part by the Federal Government or a state public body or to which the Federal Government or a state public body extends assistance by supplying all or part of the labor, by guaranteeing the payment of liens, or otherwise. For the purposes of this Article only there shall be excluded from the term “low rent housing project” any such project where there shall be in existence on the effective date hereof, a contract for financial assistance between any state public body and the Federal Government in respect to such project. For the purposes of this Article only “persons of low income” shall mean persons or families who lack the amount of income which is necessary (as determined by the state public body developing, constructing, or acquiring the housing project) to enable them, without financial assistance, to live in decent, safe and sanitary dwellings, without overcrowding. For the purposes of this Article the term “state public body” shall mean this State, or any city, city and county, county, district, authority, agency, or any other subdivision or public body of this State. For the purposes of this Article the term “Federal Government” shall mean the United States of America, or any agency or instrumentality, corporate or otherwise, of the United States of America.

Section 2. The provisions of this Article shall be self-executing but legislation not in conflict herewith may be enacted to facilitate its operation.

Section 3. If any portion, section or clause of this article, or the application thereof to any person or circumstance, shall for any reason be declared unconstitutional or held invalid, the remainder of this Article, or the application of such portion, section or clause to other persons or circumstances, shall not be affected thereby.

Section 4. The provisions of this Article shall supersede all provisions of this Constitution and laws enacted thereunder in conflict therewith.

 

William M. Wiecek, “Residential segregation” (unpublished ms.)

William M. Wiecek, fragment of unpublished manuscript on structural racism in housing

In historical retrospect, it is not surprising that the Court’s first housing discrimination case in the Civil Rights Era should have come out of California. The Golden State was the birthplace of racial covenants. It forbade landownership by Asians in its Alien Land Laws (1913 and 1920). (The United States Supreme Court struck part of them down in 1948⁹ and the California Supreme Court completed the demolition in 1952.¹⁰) Many white Californians supported Japanese exclusion during the Second World War.

Demographic and political trends after the war provided a background for widespread white resistance to fair housing legislation.¹¹ Suburban growth, post-war prosperity, and a broad-based shift toward the politics and values of the Republican Party accounted for the transformation of the white middle class from Democratic to GOP leanings by 1960, more than two decades before a comparable political switch took place in the South.¹² The new conservative white suburban electorate was receptive to ideological appeals to anti-communism, states’ rights, resistance to federal power, limited government, individualism, and the sanctity of private property. This justified more practical goals: the preservation of white entitlement and its implicit benefits (security, stability, a sense of shared community, and a monopoly share of the benefits of Sunbelt growth). Racial integration threatened whites’ material wealth (captured in the rising values of their homes), their sense of racial solidarity, and the low levels of crime and juvenile delinquency that the ‘burbs offered.¹³ Freedom to associate with whom you pleased, and the power to control access to your property, were the values that the Los Angeles Times defended in 1964 when it insisted that it was an error to “correct a social evil” (racial discrimination) at the cost of “destroying . . . a basic right in a free society.”¹⁴ Ronald Reagan seconded that theme two years later: it was wrong “to give one segment of our population a right at the expense of the basic rights of all our citizens.”¹⁵ Few California whites were explicitly racist in the traditional sense, at least as far as African-Americans were concerned, but they, more than other Americans, underwent a sudden shift in perspective in 1965 as the images on their television screens switched from Bull Connor’s police dogs and fire hoses assaulting peaceful black demonstrators in Birmingham to images of looting rioters in Watts two years later.

In this inauspicious environment, California progressives attacked what contemporaries considered “the most serious domestic problem of the time,”¹⁶ racial discrimination, in the Hawkins Act of 1959, which forbade discrimination by persons selling or renting publicly assisted housing¹⁷; and by the Unruh Civil Rights Act of 1959, a state public accommodations act that banned all aspects of racial discrimination “by all business establishments of every kind whatsoever.”¹⁸ Though the California Supreme Court read this to cover all aspects of the housing market, including real estate brokerage, the legislature later banned housing discrimination specifically by the Rumford Fair Housing Act of 1963.¹⁹

At that point, a powerful coalition of real estate brokers and landlords, the California Real Estate Association (CREA), backed by an emergent California conservative movement, including the California Republican Assembly and the John Birch Society, denounced it as the “Forced Housing Act” and promoted a referendum measure known as Proposition 14. This popularly enacted amendment to the state Constitution prohibited the state and all its subdivisions (municipalities, counties) from restricting “the right of any person . . . to decline to sell, lease or rent” to anyone “as he, in his absolute discretion, chooses.” In 1964, California voters approved Prop 14 by a two-million vote margin.²⁰ The sovereign people of the Golden State thereby declared that the power to discriminate on the basis of race was a fundamental constitutional right, equal in dignity to freedom of speech or freedom from cruel punishment. This was an idea that was widely and openly popular among whites at the time. ”The essence of freedom is the right to discriminate,” claimed the CREA president. Gubernatorial candidate Ronald Reagan agreed: “if an individual wants to discriminate against Negroes or others in selling or renting his house he has a right to do so.”²¹ (The United States Supreme Court denounced that idea explicitly in 1973: “invidious private discrimination . . . has never been accorded affirmative constitutional protections.”²²)

The state’s Supreme Court quickly declared Prop 14 unconstitutional, holding that it encouraged or authorized racial discrimination in violation of the Fourteenth Amendment’s equal protection clause.²³ Such encouragement constituted state action, the court reasoned, because the state was significantly involved in private discriminatory acts. Yet just how the state became “involved” remained unclear and unexplained, a vagueness that invited sharp criticism.²⁴

Aggrieved landlords appealed to the United States Supreme Court, which in Reitman v. Mulkey (1967) affirmed the state court’s decision without much further clarifying just how the state became “involved”.²⁵ In a brief and thinly reasoned opinion, Justice Byron White for the majority invoked earlier and inapposite precedents²⁶ for the proposition that the state can become significantly enough involved in private discrimination to constitute state action²⁷ if its “permissive statute” can be construed as an “authorization” to discriminate. Otherwise, he simply held that Prop 14 “significantly encouraged & involved the State” in the actions of private discriminators. This was a conclusory statement: White relied on the state court’s knowledge of local circumstances, but made no independent factual review.

Justice William O. Douglas, concurring, offered a more persuasive argument for the presence of state action.²⁸ Drawing on sociological analyses done by the U.S. Civil Rights Commission, he reconstructed the chain in which real property changes hands, by sale or rental, from the individual owner, through the realtor, to the mortgage lender, to developers, to demonstrate that the state “harnesses” private actors to do what the state itself is forbidden to do. Then he returned to a point originally made by the first Justice Harlan in the Civil Rights Cases (1883)²⁹: state action is implicated where the state licenses the business of the discriminators, in this case, realtors. Licensing takes place “in an environment where the whole weight of the system is on the side of discrimination.” Regrettably, Douglas’s realistic analysis attracted the support of no other Justices.

Justice John M. Harlan, unpersuaded by his grandfather’s arguments eighty-four years earlier, wrote for the four dissenters³⁰ in the most tightly reasoned opinion of the lot. He pointed out that the state’s involvement, such as it was, was merely passive, akin simply to doing nothing in the face of private discrimination, constituting only inaction rather than state action. Encouragement, he warned was a “slippery criterion” that had no apparent limits. But his finely-crafted argument was vitiated by his disingenuous claim that the state court had failed to show any invidious purpose or effect behind Prop 14.

Though White’s opinion for the majority was a superficial disappointment,³¹ the majority did at least intuit a result that accorded with reality. Prop 14 was a coup overriding legislative judgment successively arrived at three times.³² The referendum was heavily financed by the California Real Estate Association, the state Chamber of Commerce, and other special interest groups (as California referenda and initiatives often are) and was explicitly premised on a racist objective: preservation of the ability to discriminate, achieved by disabling state and local legislative power.

The Court reaffirmed its Reitman conclusions in Hunter v. Erickson two years later, striking down under the equal protection clause an amendment to the Akron, Ohio city charter that required any ordinance regulating the sale or lease of housing “on the basis of race, color, . . . or ancestry” must be approved by a majority of the city’s voters at a referendum. It also suspended the existing fair housing ordinance until approved by popular referendum. Justice White in an 8-1 decision readily disposed of the amendment, condemning it as an explicitly racial classification that made it more difficult to seek the protection of law against racial discrimination. “The reality is that the law’s impact falls on the minority”, placing a “special burden on racial minorities,” he wrote.³³ He thereby anticipated the reasoning of Romer v. Evans³⁴ twenty-seven years later. Yet his reliance on an effects test contrasts sharply with his rejection of such a test five years later in Washington v. Davis (1976).³⁵

Like other popular-democracy measures enacted to confine legislative judicial power for the purpose of oppressing some minority,³⁶ the fair housing referenda represented just the kind of majoritarian action that that Carolene Products’ footnote 4 had directed judicial power to police: legislation based on “prejudice against discrete and insular majorities” and legislation that “restricts those political processes” that clear the channels of democracy.³⁷ Originally adopted in the hope of enhancing democracy, modern initiative and referendum legislation often has the opposite effect. In place of a nuanced, debated, fact-based discussion of issues by a legislative body, which takes into account all points of view and interests, laws initiated or adopted by popular vote reduce issues to a stark binary, yes-or-no option. Making matters worse, the proposed legislation is often drafted in confusing or misleading language.

The outcome in Reitman did not douse the ardor of fair housing’s enemies. Before 1968, nine popular democracy measures (initiatives or referenda) prohibiting or repealing fair housing legislation succeeded elsewhere.³⁸ This development was squelched only by enactment of the 1968 federal Fair Housing Act. The racial potential of these direct-democracy measures made them, in the opinion of one critic, the “most effective facilitator of that bias, discrimination, and prejudice which has marred American democracy from its earliest day.”³⁹ Though the Supreme Court is willing to permit scrutiny of legislators’ motives in enacting laws that have a racially-differential impact (a topic discussed below), it has declined to look into the motives of the people when they enact legislation directly.⁴⁰ Thus, in what seems a paradox of democracy, it is easier to enact racist laws by initiative or referenda, where the sovereign people themselves are the source of the laws or the authority for their enactment, than to do so through the filter of republican legislative bodies. This result stands in remarkable contrast to direct-democracy measures that diminish the rights of gays and lesbians, where the Court has exercised an alert and stern vigilance.⁴¹

In the half-century after the First World War, the United States Supreme Court intervened sporadically in the problem of housing discrimination, first striking down segregation ordinances in 1917 (Buchanan v. Warley), then withdrawing judicial authority to enforce private racial covenants in1948 (Shelley v. Kraemer) and in the same year voiding racially-based restrictions on land ownership (Oyama v. California), and finally in 1967 nullifying a state constitutional amendment that would have guaranteed a right to discriminate (Reitman v. Mulkey).⁴² This trajectory reached its apogee in Jones v. Alfred Mayer Co. (1968). Jones marked the culmination of the Court’s willingness to approach issues of residential segregation and housing discrimination in ways that at least implicitly took into account societal realities and attempted to identify doctrines that would help resolve those problems. Its realism, plus its determination to forge a solution rather than pose an obstacle to it, would all too soon become a thing of the past. The Jones case resuscitated both the Thirteenth Amendment and the 1866 Civil Rights Act, summoning them forth from the mausoleum in which the late nineteenth century Court had entombed them. It creatively identified a way out of the state-action cul-de-sac created by the Civil Rights Cases of 1883. The Court reaffirmed Congress’s role in both identifying rights and in fashioning remedies. A majority of the Justices, for almost the last time, enlisted in the struggle to dispel segregation’s lingering miasma. After 1970, a different majority of the Justices have been content to regard segregation with torpid indifference.

 

Housing Authority of the City of Eureka v. Superior Court (1950), 35 Cal.2d 550

Housing Authority of the City of Eureka v. Superior Court (1950), 35 Cal.2d 550, 219 P.2d 457

EDMONDS, J.

By writ of prohibition, the petitioner is seeking to restrain the superior court from taking any further action in connection with two cases pending before it. The litigation under attack stems from the Authority’s application to the federal government for a loan of money to be used in the construction of low-rent public housing, and the principal question here presented for decision is whether the city council of Eureka, in approving the transaction, was acting in an administrative or in a legislative capacity.

The United States Housing Act of 1937 established a federal housing agency authorized to make loans to state agencies for the purpose of slum clearance and low-rent housing projects. The California Legislature made the benefits of the federal act available to the cities and counties of this state by enacting the Housing Authorities Law. This statute expressly recognizes the existence of slum and substandard living areas within the state, and enunciates the government’s intention to eliminate them.

The federal Housing Act of 1937 requires, among other things, that the governing body of any municipality in which a housing authority has been established must approve its application for a loan. The Housing Authority of Eureka was approved by Resolution No. 3720 of the city council, which recognized the need for such agency. Shortly after this resolution was adopted, the city of Eureka and the Authority entered into a cooperation agreement in accordance with the requirements of the applicable statutes. A referendum petition bearing 1,822 signatures was presented to the clerk of the city of Eureka, praying for the submission to the electorate of the question of acceptance or rejection of the resolution of the city council approving the Authority’s application for a loan. The city clerk refused to receive or file the petition. Certain electors of the city, acting on their own behalf and also for others similarly interested, then commenced an action in mandate for the purpose of requiring the city clerk to accept and file the referendum petition.

The power of referendum applies only to acts that are legislative in character; executive or administrative acts are not within the scope of that remedy. It is clear from the wording of the city charter of Eureka that the electors of that city and the legislators in approving the charter did not intend to extend the referendum to administrative acts. A charter giving a small group of electors the right to demand a vote of the people upon every administrative act of the city council would place municipal government in a strait-jacket and make it impossible for the city’s officers to carry on the public business.

But assuming that the charter of Eureka goes that far, its provisions have been superseded by the more recent state legislation which extends the benefits of the federal housing act to the cities and counties of this state. The actions of local governing bodies under the statewide housing laws “… are administrative only for the purpose of giving statewide effect to the declared legislative policy. …”

For these reasons, the resolution of the city council is not subject to the referendum provisions of the municipal charter and the members of the council may not be enjoined from approving the actions of the authority in carrying out a housing program for the city of Eureka. A peremptory writ of prohibition will issue accordingly.

 

Mulkey v. Reitman (1966), 64 Cal.2d 529

Mulkey v. Reitman (1966), 64 Cal.2d 529, 50 Cal.Rptr. 881

Peek, J.

Plaintiffs’ complaint sets forth that they are husband and wife, citizens of the United States and residents of the County of Orange, that they are Negroes; that defendants are the owners and managers of a certain apartment building in Orange County; that in May 1963 at least one apartment therein was unoccupied and was being offered by defendants for rent to the general public; that plaintiffs offered to rent any one of available apartments and were willing and able to do so; that defendants refused to rent any of the available apartments to plaintiffs solely on the ground that plaintiffs were Negroes; that because of such refusal plaintiffs were unable to rent a suitable place to live; that they suffered humiliation and disappointment and endured mental pain and suffering; that defendants will continue to refuse to rent to plaintiffs and other members of their race solely on the ground of such race unless restrained by order of the court; that plaintiffs have no adequate remedy at law because the discrimination practiced by defendants is also practiced by other real estate brokers, and home and apartment landlords and owners in Orange County.

The motion for judgment was made and granted solely on the ground, as stated by the trial court, “that the passage of Proposition 14 had rendered Civil Code Sections 51 and 52 upon which this action is based null and void.” The reference is to the initiative measure which appeared as Proposition 14 upon the statewide ballot in the general election of 1964. Following its approval by the voters it was incorporated into the California Constitution as article I, section 26.

Plaintiffs unsuccessfully opposed the motion on the ground that article I, section 26, is void for constitutional reasons under both the state and federal Constitutions. This contention presents the sole question on appeal.

Proposition 14, as now incorporated into the California Constitution, provides in full as follows:

“Neither the State nor any subdivision or agency thereof shall deny, limit or abridge, directly or indirectly, the right of any person, who is willing or desires to sell, lease or rent any part or all of his real property, to decline to sell, lease or rent such property to such person or persons as he, in his absolute discretion, chooses.”

For reasons which hereafter appear we do not find it necessary to discuss claims of the unconstitutionality of article I, section 26, based on California constitutional provisions and law. Our resolution of the question of constitutionality is confined solely to federal constitutional considerations.

A state enactment cannot be construed for purposes of constitutional analysis without concern for its immediate objective and for its ultimate effect. To determine the validity of the enactment in this respect it must be viewed in light of its historical context and the conditions existing prior to its enactment.

In 1959, the State Legislature took the first major steps toward eliminating racial discrimination in housing. The Unruh Civil Rights Act prohibited discrimination on grounds of “race, color, religion, ancestry, or natural origin” by “business establishments of every kind.” On its face, this measure encompassed the activities of real estate brokers and all businesses selling or leasing residential housing. At the same session the Legislature passed the Hawkins Act that prohibited racial discrimination in publicly assisted housing accommodations. In 1961 the Legislature broadened its attempt to discourage segregated housing by enacting proscriptions against discriminatory restrictive covenants affecting real property interests and racially restrictive conditions in deeds of real property. Finally in 1963 the State Legislature superseded the Hawkins Act by passing the Rumford Fair Housing Act. The Rumford Act provided that “The practice of discrimination because of race, color, religion, natural origin, or ancestry is declared to be against public policy” and prohibited such discrimination in the sale or rental of any private dwelling containing more than four units

Proposition 14 was enacted against the foregoing historical background with the clear intent to overturn state laws that bore on the right of private sellers and lessors to discriminate, and to forestall future state action that might circumscribe this right. In short, Proposition 14 generally nullifies both the Rumford and Unruh Acts as they apply to the housing market.

It is now beyond dispute that “… among the civil rights intended to be protected from discriminatory state action by the Fourteenth Amendment are the rights to acquire, enjoy, own and dispose of property. Equality in the enjoyment of property rights was regarded by the framers of that Amendment as an essential pre-condition to the realization of other basic civil rights and liberties which the Amendment was intended to guarantee.”

The question of the fact of discrimination, by whatever hand, should give us little pause. The very nature of the instant action and the specific contentions urged by the defendants must be deemed to constitute concessions on their part that article I, section 26, provides for nothing more than a purported constitutional right to privately discriminate on grounds which admittedly would be unavailable under the Fourteenth Amendment should state action be involved. Thus, as a complete and only answer to plaintiffs’ allegations which irrefutably establish a discriminatory act, defendants urge that section 26 accords them the right as private citizens to so discriminate.

The only real question thus remaining is whether the discrimination results solely from the claimed private action or instead results at least in part from state action which is sufficiently involved to bring the matter within the proscription of the Fourteenth Amendment. For the reasons stated below we have concluded that state action is sufficiently involved to fall within the reach of the constitutional prohibition.

The parties generally concede that in an organized and regulated society the state or its subdivisions play some part in most, if not all, so-called private transactions, and it must be acknowledged, without specifically enumerating them, that many of the rights and duties arising out of the transfer of an interest in real property are related to or dependent upon the state or local governments. But it is not the mere fact that in some manner the state is involved, however remotely, with which we are concerned.

To conclude that there is state action in the instant circumstances we are not limited to action by one who, cloaked with the authority of the state, acts as its designated representative. In the broad sense, state action has been consistently found where the state, in any meaningful way, has lent its processes to the achievement of discrimination even though that goal was not within the state’s purpose.

The instant case presents an undeniably analogous situation wherein the state, recognizing that it could not perform a direct act of discrimination, nevertheless has taken affirmative action of a legislative nature designed to make possible private discriminatory practices which previously were legally restricted

We cannot realistically conclude that, because the final act of discrimination is undertaken by a private party motivated only by personal economic or social considerations, we must close our eyes and ears to the events which purport to make the final act legally possible. Here the state has affirmatively acted to change its existing laws from a situation wherein the discrimination practiced was legally restricted to one wherein it is encouraged, within the meaning of the cited decisions. Certainly the act of which complaint is made is as much, if not more, the legislative action which authorized private discrimination as it is the final, private act of discrimination itself. Where the state can be said to act, as it does of course, through the laws approved by legislators elected by the popular vote, it must also be held to act through a law adopted directly by the popular vote. When the electorate assumes to exercise the law-making function, then the electorate is as much a state agency as any of its elected officials. It is thus apparent that, while state action may take many forms, the test is not the novelty of the form but rather the ultimate result which is achieved through the aid of state processes. And if discrimination is thus accomplished, the nature of proscribed state action must not be limited by the ingenuity of those who would seek to conceal it by subtleties and claims of neutrality.

From the foregoing it is apparent that the state is at least a partner in the instant act of discrimination and that its conduct is not beyond the reach of the Fourteenth Amendment. Article I, section 26, of the California Constitution thus denied to plaintiffs and all those similarly situated the equal protection of the laws as guaranteed by the Fourteenth Amendment to the federal Constitution, and is void in its general application.

The judgment is reversed.

Traynor, C. J., Peters, J., Tobriner, J., and Burke, J., concurred.

 

Reitman v. Mulkey, 387 U.S. 369 (1967)

Mr. Justice WHITE delivered the opinion of the Court.

The question here is whether Art. I, sec. 26, of the California Constitution denies ‘to any person * * * the equal protection of the laws’ within the meaning of the Fourteenth Amendment of the Constitution of the United States.

We affirm the judgments of the California Supreme Court. We first turn to the opinion of that court in Reitman, which quite properly undertook to examine the constitutionality of sec. 26 in terms of its ‘immediate objective,’ its ‘ultimate effect’ and its ‘historical context and the conditions existing prior to its enactment.’ But here the California Supreme Court has addressed itself to these matters and we should give careful consideration to its views because they concern the purpose, scope, and operative effect of a provision of the California Constitution.

The judgment of the California court was that sec. 26 unconstitutionally involves the State in racial discriminations and is therefore invalid under the Fourteenth Amendment. There is no sound reason for rejecting this judgment.

As we understand the California court, it did not posit a constitutional violation on the mere repeal of the Unruh and Rumford Acts. It did not read either our cases or the Fourteenth Amendment as establishing an automatic constitutional barrier to the repeal of an existing law prohibiting racial discriminations in housing; nor did the court rule that a State may never put in statutory form an existing policy of neutrality with respect to private discriminations. What the court below did was first to reject the notion that the State was required to have a statute prohibiting racial discriminations in housing. Second, it held the intent of sec. 26 was to authorize private racial discriminations in the housing market, to repeal the Unruh and Rumford Acts and to create a constitutional right to discriminate on racial grounds in the sale and leasing of real property. Hence, the court dealt with sec. 26 as though it expressly authorized and constitutionalized the private right to discriminate. Third, the court assessed the ultimate impact of sec. 26 in the California environment and concluded that the section would encourage and significantly involve the State in private racial discrimination contrary to the Fourteenth Amendment.

The California court could very reasonably conclude that sec. 26 would and did have wider impact than a mere repeal of existing statutes. Section 26 mentioned neither the Unruh nor Rumford Act in so many words. Instead, it announced the constitutional right of any person to decline to sell or lease his real property to anyone to whom he did not desire to sell or lease. Unruh and Rumford were thereby pro tanto repealed. But the section struck more deeply and more widely. Private discriminations in housing were now not only free from Rumford and Unruh but they also enjoyed a far different status than was true before the passage of those statutes. The right to discriminate, including the right to discriminate on racial grounds, was now embodied in the State’s basic charter, immune from legislative, executive, or judicial regulation at any level of the state government. Those practicing racial discriminations need no longer rely solely on their personal choice. They could now invoke express constitutional authority, free from censure or interference of any kind from official sources.

This Court has never attempted the ‘impossible task’ of formulating an infallible test for determining whether the State ‘in any of its manifestations’ has become significantly involved in private discriminations. ‘Only by sifting facts and weighing circumstances’ on a case-by-case basis can a ‘nonobvious involvement of the State in private conduct be attributed its true significance.’ Here the California court, armed as it was with the knowledge of the facts and circumstances concerning the passage and potential impact of sec. 26, and familiar with the milieu in which that provision would operate, has determined that the provision would involve the State in private racial discriminations to an unconstitutional degree. We accept this holding of the California court.

Here we are dealing with a provision which does not just repeal an existing law forbidding private racial discriminations. Section 26 was intended to authorize, and does authorize, racial discrimination in the housing market. The right to discriminate is now one of the basic policies of the State. The California Supreme Court believes that the section will significantly encourage and involve the State in private discriminations. We have been presented with no persuasive considerations indicating that these judgments should be overturned.

Affirmed.

Mr. Justice DOUGLAS, concurring.

While I join the opinion of the Court, I add a word to indicate the dimensions of our problem. This is not a case as simple as the one where a man with a bicycle or a car or a stock certificate or even a log cabin asserts the right to sell it to whomsoever he pleases, excluding all others whether they be Negro, Chinese, Japanese, Russians, Catholics, Baptists, or those with blue eyes. We deal here with a problem in the realm of zoning, similar to the one we had in Shelley v. Kraemer (1948), where we struck down restrictive covenants.

Those covenants are one device whereby a neighborhood is kept ‘white’ or ‘Caucasian’ as the dominant interests desire. Proposition 14 in the setting of our modern housing problem is only another device of the same character

Real estate brokers and mortgage lenders are largely dedicated to the maintenance of segregated communities. Realtors commonly believe it is unethical to sell or rent to a Negro in a predominantly white or all-white neighborhood, and mortgage lenders throw their weight alongside segregated communities, rejecting applications by members of a minority group who try to break the white phalanx save and unless the neighborhood is in process of conversion into a mixed or a Negro community.

Proposition 14 is a form of sophisticated discrimination whereby the people of California harness the energies of private groups to do indirectly what they cannot under our decisions7 allow their government to do. The right to own or lease property is already denied to many solely because of the pigment of their skin; they are, indeed, under the control of a few who determine where and how the colored people shall live and what the nature of our cities will be. Second, the agencies that are zoning the cities along racial lines are state licensees.

Zoning is a state and municipal function When the State leaves that function to private agencies or institutions which are licensees and which practice racial discrimination and zone our cities into white and black belts or white and black ghettoes, it suffers a governmental function to be performed under private auspices in a way the State itself may not act.

Under California law no person may ‘engage in the business, act in the capacity of, advertise or assume to act as a real estate broker or a real estate salesman within this State without first obtaining a real estate license.’ These licensees are designated to serve the public. Their licenses are not restricted, and could not be restricted, to effectuate a policy of segregation. That would be state action that is barred by the Fourteenth Amendment. There is no difference, as I see it, between a State authorizing a licensee to practice racial discrimination and a State, without any express authorization of that kind nevertheless launching and countenancing the operation of a licensing system in an environment where the whole weight of the system is on the side of discrimination. In the latter situation the State is impliedly sanctioning what it may not do specifically.

Since the real estate brokerage business is one that can be and is state-regulated and since it is state-licensed, it must be dedicated, like the telephone companies and the carriers and the hotels and motels to the requirements of service to all without discrimination — a standard that in its modern setting is conditioned by the demands of the Equal Protection Clause of the Fourteenth Amendment. And to those who say that Proposition 14 represents the will of the people of California, one can only reply: “‘Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents. This is a truth of great importance, but not yet sufficiently attended to.” [quoting James Madison]

 

Hunter v. Erickson, 393 U.S. 369 (1967)

Mr. Justice WHITE delivered the opinion of the Court.

The question in this case is whether the City of Akron, Ohio, has denied a Negro citizen, Nellie Hunter, the equal protection of its laws by amending the city charter to prevent the city council from implementing any ordinance dealing with racial, religious, or ancestral discrimination in housing without the approval of the majority of the voters of Akron.

The Akron City Council in 1964 enacted a fair housing ordinance premised on a recognition of the social and economic losses to society which flow from substandard, ghetto housing and its tendency to breed discrimination and segregation contrary to the policy of the city to ‘assure equal opportunity to all persons to live in decent housing facilities regardless of race, color, religion, ancestry or national origin.’ Nellie Hunter addressed a complaint to the Commission asserting that a real estate agent had come to show her a list of houses for sale, but that on meeting Mrs. Hunter the agent ‘stated that she could not show me any of the houses on the list she had prepared for me because all of the owners had specified they did not wish their houses shown to negroes.’ Mrs. Hunter’s affidavit met with the reply that the fair housing ordinance was unavailable to her because the city charter had been amended to provide: “‘Any ordinance enacted by the Council of The City of Akron which regulates the use, sale, advertisement, transfer, listing assignment, lease, sublease or financing of real property of any kind or of any interest therein on the basis of race, color, religion, national origin or ancestry must first be approved by a majority of the electors voting on the question at a regular or general election before said ordinance shall be effective. Any such ordinance in effect at the time of the adoption of this section shall cease to be effective until approved by the electors as provided herein.’

Akron argues that this case is unlike Reitman v. Mulkey (1967) in that here the city charter declares no right to discriminate in housing, authorizes and encourages no housing discrimination, and places no ban on the enactment of fair housing ordinances. But we need not rest on Reitman to decide this case. Here, unlike Reitman, there was an explicitly racial classification treating racial housing matters differently from other racial and housing matters.

[But] section 137 drew a distinction between those groups who sought the law’s protection against racial, religious, or ancestral discriminations in the sale and rental of real estate and those who sought to regulate real property transactions in the pursuit of other ends. Those who sought, or would benefit from, most ordinances regulating the real property market remained subject to the general rule: the ordinance would become effective 30 days after passage by the City Council, or immediately if passed as an emergency measure, and would be subject to referendum only if 10% of the electors so requested by filing a proper and timely petition. Passage by the Council sufficed unless the electors themselves invoked the general referendum provisions of the city charter. But for those who sought protection against racial bias, the approval of the City Council was not enough. A referendum was required by charter at a general or regular election, without any provision for use of the expedited special election ordinarily available. The Akron charter obviously made it substantially more difficult to secure enactment of ordinances subject to sec. 137.

Moreover, although the law on its face treats Negro and white, Jew and gentile in an identical manner, the reality is that the law’s impact falls on the minority. The majority needs no protection against discrimination and if it did, a referendum might be bothersome but no more than that.

Because the core of the Fourteenth Amendment is the prevention of meaningful and unjustified official distinctions based on race, racial classifications are ‘constitutionally suspect,’ and subject to the ‘most rigid scrutiny.’ Insisting that a State may distribute legislative power as it desires and that the people may retain for themselves the power over certain subjects may generally be true, but these principles furnish no justification for a legislative structure which otherwise would violate the Fourteenth Amendment. Nor does the implementation of this change through popular referendum immunize it. The sovereignty of the people is itself subject to those constitutional limitations which have been duly adopted and remain unrepealed. Even though Akron might have proceeded by majority vote at town meeting on all its municipal legislation, it has instead chosen a more complex system. Having done so, the State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person’s vote or give any group a smaller representation than another of comparable size.

We hold that sec. 137 discriminates against minorities, and constitutes a real, substantial, and invidious denial of the equal protection of the laws.

 

James v. Valtierra, 402 U.S. 137 (1971)

Mr. Justice BLACK delivered the opinion of the Court.

These cases raise but a single issue. It grows out of the United States Housing Act of 1937, which established a federal housing agency authorized to make loans and grants to state agencies for slum clearance and low rent housing projects. In response, the California Legislature created in each county and city a public housing authority to take advantage of the financing made available by the federal Housing Act. At the time the federal legislation was passed the California Constitution had for many years reserved to the State’s people the power to initiate legislation and to reject or approve by referendum any Act passed by the state legislature. The same section reserved to the electors of counties and cities the power of initiative and referendum over acts of local government bodies. In 1950, however, the State Supreme Court held that local authorities’ decisions on seeking federal aid for public housing projects were ‘executive’ and ‘administrative,’ not ‘legislative,’ and therefore the state constitution’s referendum provisions did not apply to these actions. [Housing Authority of City of Eureka v. Superior Court.] Within six months of that decision the California voters adopted Article XXXIV of the state constitution to bring public housing decisions under the State’s referendum policy. The Article provided that no low-rent housing project should be developed, constructed, or acquired in any manner by a state public body until the project was approved by a majority of those voting at a community election.

The present suits were brought by citizens of San Jose, California, and San Mateo County, localities where housing authorities could not apply for federal funds because low-cost housing proposals had been defeated in referendums. The plaintiffs, who are eligible for low-cost public housing, sought a declaration that Article XXXIV was unconstitutional because its referendum requirement violated: (1) the Supremacy Clause of the United States Constitution; (2) the Privileges and Immunities Clause; and (3) the Equal Protection Clause. A three-judge court held that Article XXXIV denied the plaintiffs equal protection of the laws and it enjoined its enforcement

Unlike the Akron referendum provision [in Hunter v. Erickson], it cannot be said that California’s Article XXXIV rests on ‘distinctions based on race.’ The Article requires referendum approval for any low-rent public housing project, not only for projects which will be occupied by a racial minority. And the record here would not support any claim that a law seemingly neutral on its face is in fact aimed at a racial minority. The present case could be affirmed only by extending Hunter, and this we decline to do.

California’s entire history demonstrates the repeated use of referendums to give citizens a voice on questions of public policy. A referendum provision was included in the first state constitution, and referendums have been a commonplace occurrence in the State’s active political life.3 Provisions for referendums demonstrate devotion to democracy, not to bias, discrimination, or prejudice.

Nonetheless, appellees contend that Article XXXIV denies them equal protection because it demands a mandatory referendum while many other referendums only take place upon citizen initiative. They suggest that the mandatory nature of the Article XXXIV referendum constitutes unconstitutional discrimination because it hampers persons desiring public housing from achieving their objective when no such roadblock faces other groups seeking to influence other public decisions to their advantage.

But of course a lawmaking procedure that ‘disadvantages’ a particular group does not always deny equal protection. Under any such holding, presumably a State would not be able to require referendums on any subject unless referendums were required on all, because they would always disadvantage some group. And this Court would be required to analyze governmental structures to determine whether a gubernatorial veto provision or a filibuster rule is likely to ‘disadvantage’ any of the diverse and shifting groups that make up the American people

The people of California have also decided by their own vote to require referendum approval of low-rent public housing projects. This procedure ensures that all the people of a community will have a voice in a decision which may lead to large expenditures of local governmental funds for increased public services and to lower tax revenues.4 It gives them a voice in decisions that will affect the future development of their own community. This procedure for democratic decisionmaking does not violate the constitutional command that no State shall deny to any person ‘the equal protection of the laws.’

The judgment of the three-judge court is reversed and the cases are remanded for dismissal of the complaint.

Mr. Justice MARSHALL, whom Mr. Justice BRENNAN and Mr. Justice BLACKMUN join, dissenting.

The article explicitly singles out low-income persons to bear its burden. The Court, however, chooses to subject the article to no scrutiny whatsoever and treats the provision as if it contained a totally benign, technical economic classification. Both the appellees and the Solicitor General of the United States as amicus curiae have strenuously argued, and the court below found, that Art. XXXIV, by imposing a substantial burden solely on the poor, violates the Fourteenth Amendment. Yet after observing that the article does not discriminate on the basis of race, the Court’s only response to the real question in these cases is the unresponsive assertion that ‘referendums demonstrate devotion to democracy, not to bias, discrimination, or prejudice.’ It is far too late in the day to contend that the Fourteenth Amendment prohibits only racial discrimination; and to me, singling out the poor to bear a burden not placed on any other class of citizens tramples the values that the Fourteenth Amendment was designed to protect.

I respectfully dissent.

 

Charles L. Black, “Foreword: State Action, Equal Protection, and California’s Proposition 14”

Charles L. Black, “Foreword: State Action, Equal protection, and California’s Proposition 14,” 81 Harv. L. Rev. 69 (1967)

The decision in Reitman v. Mulkey is apt to be widely misunderstood, because both those who like it, and those who do not, are powerfully impelled to see it as holding more than it did — the former because a broad reading could open the way to attack on many more difficult situations in the field of housing and elsewhere, and the latter because a broad holding is easier, in the present state of professional thought, to assail and discredit. The broader holding would have rested on the ground that the repeal of the fair housing law was itself a state action which denied equal protection. Further, since the distinction between states which up to now have, and those which up to now have not, enacted fair housing laws would seem to be unacceptable as a criterion of state obligation, it ought to follow that all states have a duty to enact fair housing laws, and that if they do not the discrimination thus made possible is to be seen as sanctioned by their omission, and hence as infected with a forbidden state complicity that calls down the ban of the fourteenth amendment. State “neutrality,” the holders of this view would insist, is not possible — or, if possible, is not a sufficient fulfillment of the “equal protection” obligation.

I mean at this point only to name a position, and not to defend it or even to state it with a defensive exactness. Evaluation of the very judgment in Reitman v. Mulkey does not depend on acceptance or rejection of this advanced view. Neither the California court nor the Supreme Court made it the ground of decision. It is interesting to ask, then, whether the very thing done by Proposition 14 was a forbidden state action in aid of racial discrimination, or hostile to minority races, even on the assumption that the mere repeal of the fair housing law or the failure to enact a fair housing law would constitute a state “neutrality” not contravening the fourteenth amendment.

There is no question that Mr. Justice White has correctly paraphrased what this text says, and that Mr. Justice Harlan has rendered it too narrowly. This point is vital, for the Reitman decision, to be understood, must be looked at as a holding on the very thing done by article 1, section 26. That section in its own chosen terms neither declares a right, nor repeals a statute, nor states a position of constitutional neutrality, though it may be thought to do some or all of these things, in some fashion, by implication. What it does, without implication, is to lay a sweeping prohibition on all agencies and subdivisions of government within the state, and not merely on the state legislature, saying that none of them may do anything to place any limitation on the absolute discretion of owners to decline to deal with chosen objects of discrimination among would-be buyers and tenants of residential property.

So far as statewide legislation and policy is concerned, then, article 1, section 26, in contrast to “mere” repeal of the Rumford Act, makes far more difficult, though not quite impossible, a return to fair housing as a legal right. On the levels of local government, the edict is even sterner. The sweep of the section’s prohibition would make it radically impossible for any unit of local government to take any steps whatever to favor fair housing. Five years from now, seventy-five percent of the people in San Francisco might think a fair housing ordinance wise and just, imperatively called for in the interest of public health and safety. Yet, under article 1, section 26, such an ordinance would not only have been held unconstitutional if passed, but might even have been ruled off a referendum ballot.

Aticle 1, section 26, however, entirely generalizes the landlord’s discretion to decline. Does this make a difference? Reduced to these terms, the question is seen to be the same old question: Has the state, by generality of language, succeeded in validly doing to Negroes what it could not do to Negroes eo nomine? Has, at last, the hand been quicker than the judicial eye? For, if the imaginary section is not “neutral” as between Negroes and those who would discriminate against them, the real section 26 is not “neutral” as between arbitrary discriminators and their chosen discriminees, including Negroes. Section 26 must have found validity, if at all, only in its generalizing of the protection afforded to discriminators.

The rule which I would propose, then, as a basis for the Reitman decision, is that where a racial group is in a political duel with those who would explicitly discriminate against it as a racial group, and where the regulatory action the racial group wants is of full and undoubted federal constitutionality, the state may not place in the way of the racial minority’s attaining its political goal any barriers which, within the state’s political system taken as a whole, are especially difficult of surmounting, by comparison with those barriers that normally stand in the way of those who wish to use political processes to get what they want.

Even on the assumption, then, that California “need not strive” to rescue the Negroes from that housing misery and de facto racial zoning which is now the thing chiefly blocking them from equality in the enjoyment of citizenship, even if “neutrality” will do, the Reitman decision, for the reasons I have given, seems to me correct. California has not “merely” failed to throw the life-preserver: California has put the life-preserver out of convenient reach, so as not to be tempted to throw it, and has passed the word down the line to those she commands, that the life-preserver is not to be thrown. To revive an ancient saying, there is no question whom such actions are neutral against.

 

Health and Safety Code sec. 37000

Public Housing Election Implementation Law (1976)

Health & Safety Code § 37000

 

The Legislature finds and declares that Article XXXIV of the State Constitution was approved by the voters for the purpose of providing a mechanism for expressing community concern regarding the development, acquisition, or construction of federally subsidized conventional public housing projects. Such developments typically were different from and inconsistent with housing developments provided by the private sector. Such differences included architecture, design, and locational standards as well as the level of amenities provided. Such developments were occupied entirely by persons of low income, and usually were not subject to ad valorem property taxes.

The Legislature finds and declares that new forms of housing assistance can provide housing for persons of low income in a manner consistent with and supportive of optimum community improvement. Such forms of housing assistance may allow for mixed income occupancy in developments representative of and competitive with similar market rate developments provided by the private sector. Such mixed income developments are frequently comparable to market rate projects in terms of architecture, design, and locational standards as well as the level of amenities provided, and may be subject to ad valorem property taxes

Recognizing that new forms of housing assistance provide new approaches for housing persons of low income, it is the intent of the Legislature in enacting Sections 37001, 37001.3, and 37001.5 to clarify ambiguities relating to the scope of the applicability of Article XXXIV which now exist. Therefore, and pursuant to Section 2 of Article XXXIV, this part is enacted in order to facilitate the operation of Article XXXIV and is consistent with the provisions of that article.

§ 37001. Low rent housing project; criteria

The term “low-rent housing project,” as defined in Section 1 of Article XXXIV of the California Constitution, does not apply to any development composed of urban or rural dwellings, apartments, or other living accommodations, which meets any one of the following criteria:

(a) (1) The development is privately owned housing, receiving no ad valorem property tax exemption, other than exemptions granted pursuant to subdivision (f) or (g) of Section 214 of the Revenue and Taxation Code, not fully reimbursed to all taxing entities; and (2) not more than 49 percent of the dwellings, apartments, or other living accommodations of the development may be occupied by persons of low income.

(b) The development is privately owned housing, is not exempt from ad valorem taxation by reason of any public ownership, and is not financed with direct long-term financing from a public body.

(c) The development is intended for owner-occupancy, which may include a limited equity housing cooperative as defined in Section 50076.5, or cooperative or condominium ownership, rather than for rental-occupancy.

(d) The development consists of newly constructed, privately owned, one-to-four family dwellings not located on adjoining sites.

(e) The development consists of existing dwelling units leased by the state public body from the private owner of these dwelling units.

(f) The development consists of the rehabilitation, reconstruction, improvement or addition to, or replacement of, dwelling units of a previously existing low-rent housing project, or a project previously or currently occupied by lower income households, as defined in Section 50079.5.

(g) The development consists of the acquisition, rehabilitation, reconstruction, improvement, or any combination thereof, of a rental housing development which, prior to the date of the transaction to acquire, rehabilitate, reconstruct, improve, or any combination thereof, was subject to a contract for federal or state public body assistance for the purpose of providing affordable housing for low-income households and maintains, or enters into, a contract for federal or state public body assistance for the purpose of providing affordable housing for low-income households.

 

California Housing Finance Agency v. Patitucci (1978), 22 Cal.3d 171

California Housing Finance Agency v. Patitucci (1978), 22 Cal.3d 171, 148 Cal.Rptr. 875

RICHARDSON, J.

The California Housing Finance Agency (Agency) seeks a writ of mandate compelling respondent, its chairperson and president, to print and issue revenue bonds in accordance with an Agency resolution adopted under the provisions of the Zenovich-Moscone-Chacon Housing and Home Finance Act (the Act). Respondent refuses to issue the bonds on the ground that the resolution violates article XXXIV of the California Constitution, which requires local voter approval before any ‘low rent housing project‘ may be ‘developed, constructed or acquired in any manner by any state public body.‘ We conclude that article XXXIV is not applicable to the resolution at issue herein and that the bonds authorized may be printed and offered for sale pursuant to the Agency’s direction, and without a local election.

Our decision in [California Housing Finance Agency v. Elliott (1976) 17 Cal.3d 575 [131 Cal.Rptr. 361] established several principles. First, we recognized that article XXXIV is not unambiguous in all of its applications; ample room remains under the constitutional language for honest disagreement as to whether a particular mixed income development constitutes a ‘low rent housing project.‘ Second, we adopted a realistic and functional approach in considering the application of article XXXIV, recognizing that the potential economic impact on the affected community is the primary test to be applied. Third, we stressed that our Elliott holding was limited to its particular facts, and did not preclude a different result in other cases in which other or lesser proportions of housing units were reserved for low income tenants.

By its adoption of Health and Safety Code sections 37000–37002, the Legislature has sought to implement an important and comprehensive program to meet California’s housing needs by resolving questions left unanswered in Elliott. The certainty the Legislature seeks to impose in this area, assuming of course that its actions are valid, is beneficial to the efficient administration of this program in promoting the marketability of the revenue bonds upon which much of the program’s success depends. We, of course, are very mindful that article XXXIV is a direct expression of the People who, alone, have the power to adopt or change the Constitution (Cal. Const., art. XVIII, §§ 1–4), and that the judiciary, rather than the Legislature, is principally charged with its construction. Nonetheless, we affirm the Legislature’s interpretive efforts unless they are disclosed to be unreasonable or clearly inconsistent with the express language or clear import of the Constitution.

Where, as here, a constitutional amendment is subject to varying interpretations, evidence of its purpose may be drawn from many sources, including the historical context of the amendment, and the ballot arguments favoring the measure. In section 37000, the Legislature has made extensive findings about the motivating objects of article XXXIV as adopted by initiative in 1950, declaring that the article was primarily intended to provide ‘a mechanism for expressing community concern regarding the development, acquisition, or construction of federally subsidized conventional housing projects‘ (italics added). The section further emphasizes that these differ fundamentally from the privately owned, state-assisted, mixed-income developments promoted by the Act in terms of ‘architecture, design, and locational standards as well as the level of amenities provided.‘ Moreover, section 37000 recites, ‘such [conventional] developments were occupied entirely by persons of low income, and usually were not subject to ad valorem property taxes.‘

There is substantial evidence that the proponents of article XXXIV were moved by two primary concerns, the direct drain on a community’s finances and the effect on its aesthetic environment, represented by the tax exempt publicly owned low income housing of that day. In this connection, the 1950 ballot argument for Proposition 10 (enacted as art. XXXIV) is revealing, stating in pertinent part: ‘Time after time in the past year, California communities have had public housing projects forced upon them without regard either to the wishes of the citizens or community needs. This is a particularly critical matter in view of the fact that the long-term multimillion-dollar public housing contracts call for tax waivers and other forms of local assistance, which the Federal Government says will amount to half the cost of the federal subsidy on the project as long as it exists. For government to coerce such additional hidden expenses on the voters at a time when taxation and the cost of living have reached an extreme high is a ‘gift’ of debatable value. It should be accepted or rejected by ballot.‘ (Italics added.) Newspaper and campaign literature concerning Proposition 10 emphasized that the issues were the effect of public housing on a community’s property tax rolls and aesthetic values.

In 1974 the Legislature placed referendum Proposition 15 on the ballot, seeking to repeal article XXXIV. The ballot argument advanced by the opponents of Proposition 15 (that is, those who wished to retain art. XXXIV) stated, inter alia: ‘It is important to remember that the constitutional provision which Proposition 15 seeks to repeal applies only to conventional public housing which is publicly owned and tax exempt. It does not apply to other low income housing programs for which the housing remains on the tax rolls and, therefore, contributes its fair share to the financial obligations of the community.‘

In view of the foregoing, and considering our analysis in Elliott, we conclude that the Legislature could reasonably have determined that a privately owned, nontax-exempt development in which less than half the units are intended for persons of low income is not a ‘low rent housing project‘ within the meaning of article XXXIV.

We have long noted the critical importance of governmental efforts to meet the housing needs of low and moderate income citizens. In a comprehensive and innovative program, the Legislature has sought to fulfill these worthy goals while promoting economic and social integration and by enhancing, rather than endangering, the financial and environmental health of our communities. Its efforts in these positive directions are laudable and should not be thwarted by unduly restrictive interpretations of constitutional language adopted to meet different conditions.

 

Davis v. City of Berkeley (1990), 51 Cal.3d 227

Davis v. City of Berkeley (1990), 51 Cal.3d 227, 794 P.2d 897

KENNARD, J.

The California Constitution requires voter approval of any low-rent housing project before its development, construction, or acquisition by a state or local public agency. The issue here is whether this constitutional requirement is satisfied by voter approval of a ballot measure that specifies the maximum number of low-rent housing units to be developed, acquired, or constructed but provides no other information about the proposed project.

During the nearly 40 years since the enactment of article XXXIV, local public agencies have followed a practice of seeking the constitutionally required voter approval by means of ballot measures that state the maximum number of dwelling units to be developed, constructed, or acquired but do not describe the units’ location or design, the source of the project’s funding, or the dates of any of the steps required to complete the project. As we will explain, voter approval of a ballot measure in this commonly used form is sufficient to provide article XXXIV authorization for the subsequent construction of low-rent housing units up to the maximum number of units stated in the measure.

When construing a constitutional provision enacted by initiative, the intent of the voters is the paramount consideration. To determine that intent, we look first to the provision’s language, giving the words their ordinary meaning. If the language is clear and its meaning in relation to the problem at hand is manifest, ordinarily there is no need to search further for the provision’s proper interpretation.

Because the meaning of article XXXIV in relation to the problem at hand cannot be conclusively determined solely by reference to the plain meaning of its terms, we must resort to extrinsic construction aids. One of the aids used to determine the probable meaning of uncertain language in a constitutional amendment is the historical context in which the provision was enacted. As this court has recognized, “the proponents of article XXXIV were moved by two primary concerns, the direct drain on a community’s finances and the effect on its aesthetic environment, represented by the tax exempt publicly owned low income housing of that day.” The purpose of the measure was to afford voters an opportunity to weigh these costs against the obvious and pressing need for affordable housing that has continued to this day.

By its actions, the Legislature has demonstrated that it shares the Attorney General’s view regarding the use of nonspecific ballot measures to satisfy article XXXIV‘s voter approval requirement. In 1976, the Legislature added sections 36000–36005 to the Health and Safety Code to provide a means for determining whether local actions are in compliance with article XXXIV. Both section 36003, which authorizes the bringing of a “validation action,” and section 36005, which prescribes the time limit for prosecuting such an action, make clear the Legislature’s view that the voter approval of low-rent housing required by article XXXIV may and should be obtained before the local entity’s preliminary approval of the submission of the non-specific “application” by which the procedure for obtaining federal funding is initiated.8 In other words, the Legislature anticipated that a local entity would proceed as the city did in this case: seeking and obtaining general voter approval for the development of a designated number of low-rent housing units before going forward to the application stage. The Legislature’s interpretation of uncertain constitutional terms, as reflected in subsequently enacted legislation, is entitled to great deference by the courts.

Our decision does not in any manner diminish the voters’ ability to control housing project decisions. Rather, it places this political issue squarely in the political arena. As we here construe it, article XXXIV does not prescribe a single form of ballot measure; if local voters are unwilling to approve a nonspecific authorization for a stated number of low-rent housing units, they can vote against such a general measure and insist that a more specific and limited proposal be submitted.

We conclude that the Court of Appeal and the trial court correctly held that the ballot measures approved by the city’s voters in 1977 and 1981 complied with the requirements of article XXXIV, and that the city was not compelled by article XXXIV to secure further voter authorization before proceeding with the 75-unit low-income housing proposal challenged in this case.

The judgment of the Court of Appeal is affirmed.

 

Derrick Bell, “The Referendum: Democracy’s Barrier to Racial Equality”

Derrick Bell, “The Referendum: Democracy’s Barrier to Racial Equality,” 54 Wash. L. Rev. 1 (1978)

To criticize the trend toward direct democracy appears reactionary, if not un-American. Yet the growing reliance on the referendum and initiative poses a threat to individual rights in general and in particular creates a crisis for the rights of radical and other discrete minorities. This article seeks to explain why this is so and how courts might use existing constitutional principles to recognize legitimate interests in direct legislation, yet protect minority rights against majoritarian abuse.

I.THE REFERENDUM THREAT DEFINED

When Justice Black hailed referendum provisions as reflecting a devotion to democracy, and not proof of “bias, discrimination, or prejudice,” his was not simply a rhetorical flourish. The statement embodied a central principle of his 1971 majority opinion in James v. Valtierra. In that case, black and Mexican-American indigents had challenged Article 34 of the California constitution, which required prior approval in a local referendum before a state public body could develop a federally financed low-rent housing project. They argued that Article 34 unreasonably discriminated, explicitly against the poor and implicitly against minority groups, because it mandated special voter approval for low-income housing. A three-judge federal court held that the provision imposed a special procedural burden on the legislative capacity to assist minorities, an action previously barred by the Supreme Court in Hunter v. Erickson. Consequently, the lower court ruled that Article 34 denied the plaintiffs equal protection. On direct appeal, Professor Archibald Cox, the Jurisprudential Lecturer of 1976, argued to the Supreme Court that the lower court’s decision was correct.

The Supreme Court, however, reversed. Justice Black, writing for a 5-3 majority, distinguished Hunter as involving a referendum that specifically burdened racial minorities. He perceived little evidence that the housing referendum required by Article 34 relied on “distinctions based on race.” Noting that mandatory referenda were required by California law for other actions, albeit not connected with housing, Justice Black viewed the referendum as a legitimate vehicle for ensuring “that all the people of a community will have a voice in a decision which may lead to large expenditures of local governmental funds for increased public services and to lower tax revenues.” It is obvious, however, that low-income housing is not the only change in existing land uses which may adversely affect property owners and residents or lead to large expenditures of public funds. Real estate developers need not submit their plans to the populace once they obtain approval under local zoning procedures, and even governmental construction projects, including mental hospitals and prisons, are not subject to popular veto.

The burden which Article 34 imposed on the poor who rely on public housing seems clear. Yet the Valtierra majority ignored the de jure wealth classification created by the referendum requirement, despite the chiding of the dissenters, who, speaking through Justice Thurgood Marshall, thought it “far too late in the day to contend that the Fourteenth Amendment prohibits only racial discrimination.” In Justice Marshall’s view, the amendment was equally violated by laws singling out the poor to bear burdens not placed on other classes of citizens.

The Valtierra majority not only refused to subject Article 34 to “exacting judicial scrutiny” because wealth was not a suspect state classification but also failed to subject Article 34 to even a token review for a rational relationship between the means employed and the state purposes purportedly served by the measure. As one commentator noted, “That referenda demonstrate a laudable devotion to principles of popular sovereignty is no justification for mandatory referenda in some instances but not in others.”

Judicial obsequiousness in housing referendum cases where the result does not overtly and invidiously burden racial minorities is not justified even when viewed in the light of the erosion of protection of the poor in more recent Supreme Court decisions. The poor may be permitted a measure of biter confusion over constitutional interpretations that guarantee them entry into the state of California, even though their presence will impose “staggering” fiscal and other burdens, yet condone their exclusion from decent housing within the state if communities, by referendum, refuse to ratify government approved and subsidized housing the poor can afford. Perhaps they may take comfort in the fact that even if frustrated in their efforts to find low-income housing in suburban areas, where more and more job opportunities are located, they have available the impressive list of protections for indigent criminal defendants. In civil actions the poor are protected by the Constitution from overreaching by creditors using wage garnishments or summary repossession statutes. Access to the ballot is protected against the barrier of poll taxes, and access to the courthouse for a divorce may not be barred because of filing fees. But access to affordable housing is not secure. The poor may be excused if they do not understand an equal protection doctrine that is consistent only in its ability to divide the Supreme Court and confuse the Court’s commentators.

The Valtierra decision was thus not only wrong; it was, in the context of other equal protection decisions affecting the poor and minority groups, also capricious because it eschewed even the most casual equal protection scrutiny. The decision can be explained only by a deep-seated faith in the sanctity of referenda results, even when the action taken seriously disadvantages minorities and the poor. As long as the disadvantage to minorities is not intentionally racial and arguably furthers a reasonable interest, judicial intervention is not forthcoming.

Justice Black’s assertion that referenda demonstrate devotion to democracy was not completely unexpected. His commitment to the reference had been amply demonstrated in earlier decisions and he has since bequeathed his faith to a solid majority of the Court, whose devotion to the referendum presents a serious danger to the civil rights of minority groups.

Chief Justice Burger relied heavily on Justice Black’s Valtierra opinion in City of Eastlake v. Forest City Enterprises, Inc. That decision upheld a charter provision of the suburban town of Eastlake, Ohio, which required approval of all zoning changes by a fifty-five percent referendum vote. The Ohio Supreme Court had found that the requirement frustrated a multifamily, high rise apartment project, in violation of the owner-developer’s due process rights. Calling the referendum process “a basic instrument of democratic government,” Chief Justice Burger adopted Justice Black’s view that “[t]his procedure ensures that all the people of a community will have a voice in a decision which may lead to large expenditures of local governmental funds for increased public services.

Thus, in both Valtierra and City of Eastlake, the seemingly neutral, proper encouragement of direct community control implemented through a popular referendum established direct democracy as a constitutionally sanctioned vehicle for excluding the poor and, therefore, minorities. The impressive protection provided a few short years before in Reitman v. Mulkey and Hunter v. Erickson has been circumvented.

Justice Black, in a lone dissent to Hunter, had expressed regret that in a government “of the people, by the people, and for the people” a city could not constitutionally condition the enactment of a law on popular approval. The language was excessive, but Justice Black had a point. Both Reitman and Hunter, to an extent not acknowledged fully by the majority opinions of Justice White, involved the difficult task of balancing the statutory rights of minorities against the majority’s desire to implement its will.

Justice Harlan, concurring in Hunter, indicated that local communities could exercise what he considered to be their democratic right to repeal antidiscrimination laws by passing a referendum which was “grounded in neutral principles,” even though it “might occasionally operate to disadvantage Negro political interests.” To underscore this lesion, the Court shortly thereafter denied review of a Toledo, Ohio, city charter provision which had been used to repeal a recently enacted fair housing ordinance. That charter provision enabled voters by referendum to legislate for themselves or to pass on legislation enacted by any governmental body and provided that the action taken would not be subject to amendment or repeal without a general vote of the people. The effect of the referendum was to remove the question of fair housing practices from the city council’s jurisdiction and to place it in the hands of the electorate. The Ohio Supreme Court affirmed the procedure, finding no substantial constitutional question.

Thus, Justice Harlan’s advice has been heeded. Referendum provisions simply repealing fair housing ordinance or laws and upsetting city council or zoning commission approval to build low-income housing have become a standard means of barring minorities from suburban, residential communities. The Supreme Court’s approval of the referendum technique in Valtierra and City of Eastlake illustrates that in the post-civil rights era overt discrimination is rendered unnecessary the adoption of standards facially neutral as to race and arguably legitimate in purpose, but which even the most unsophisticated voters recognize as effective in excluding poor and nonwhite groups.

Despite the broad reading given Title VII of the Civil Rights Act of 1964 and the impressive efforts of legal scholars, the Supreme Court, in reviewing equal protection challenges, has refused to disfavor laws and policies that are not overtly discriminatory even though those laws and policies disproportionately disadvantage the members of racial minorities. The question then is whether, in the practice of popular sovereignty, there are unacknowledged aspects of racial discrimination or some other basis, such as a serious danger to our legislative form of government, which entitle minority groups to special protection when their interests are disadvantaged by repeal of protective legislation through the use of initiative or referendum.

 

School desegregation and busing

Mendez v. Westminster School Dist., 64 F.Supp. 544 (S.D. Cal. 1946)

McCORMICK, District Judge

In the Westminister, Garden Grove and El Modeno school districts the respective boards of trustees had taken official action, declaring that there be no segregation of pupils on a racial basis but that non-English-speaking children (which group, excepting as to a small number of pupils, was made up entirely of children of Mexican ancestry or descent), be required to attend schools designated by the boards separate and apart from English-speaking pupils; that such group should attend such schools until they had acquired some proficiency in the English language.

[The Court first held that such actions by local school boards constituted state action for purposes of the Fourteenth Amendment.]

We therefore turn to consider whether under the record before us the school boards and administrative authorities in the respective defendant districts have by their segregation policies and practices transgressed applicable law and Constitutional safeguards and limitations and thus have invaded the personal right which every public school pupil has to the equal protection provision of the Fourteenth Amendment to obtain the means of education.

We think the pattern of public education promulgated in the Constitution of California and effectuated by provisions of the Education Code of the State prohibits segregation of the pupils of Mexican ancestry in the elementary schools from the rest of the school children. Section 1 of Article IX of the Constitution of California directs the legislature to ‘encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement‘ of the people. Pursuant to this basic directive by the people of the State many laws stem authorizing special instruction in the public schools for handicapped children. Such legislation, however, is general in its aspects. It includes all those who fall within the described classification requiring the special consideration provided by the statutes regardless of their ancestry or extraction. The common segregation attitudes and practices of the school authorities in the defendant school districts in Orange County pertain solely to children of Mexican ancestry and parentage. They are singled out as a class for segregation. Not only is such method of public school administration contrary to the general requirements of the school laws of the State, but we think it indicates an official school policy that is antagonistic in principle to Sections 16004 and 16005 of the Education Code of the State.

Obviously, the children referred to in these laws are those of Mexican ancestry. And it is noteworthy that the educational advantages of their commingling with other pupils is regarded as being so important to the school system of the State that it is provided for even regardless of the citizenship of the parents. We perceive in the laws relating to the public educational system in the State of California a clear purpose to avoid and forbid distinctions among pupils based upon race or ancestry4 except in specific situations5 not pertinent to this action. Distinctions of that kind have recently been declared by the highest judicial authority of the United States ‘by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.‘ They are said to be ‘utterly inconsistent with American traditions and ideals.‘

Our conclusions in this action, however, do not rest solely upon what we conceive to be the utter irreconcilability of the segregation practices in the defendant school districts with the public educational system authorized and sanctioned by the laws of the State of California. We think such practices clearly and unmistakably disregard rights secured by the supreme law of the land.

‘The equal protection of the laws‘ pertaining to the public school system in California is not provided by furnishing in separate schools the same technical facilities, text books and courses of instruction to children of Mexican ancestry that are available to the other public school children regardless of their ancestry. A paramount requisite in the American system of public education is social equality. It must be open to all children by unified school association regardless of lineage.

The natural operation and effect of the Board’s official action manifests a clear purpose to arbitrarily discriminate against the pupils of Mexican ancestry and to deny to them the equal protection of the laws. We conclude by holding that the allegations of the complaint have been established sufficiently to justify injunctive relief against all defendants, restraining further discriminatory practices against the pupils of Mexican descent in the public schools of defendant school districts.

 

Cal. Constitution Art. I sec. 7

California Constitution

ARTICLE 1 DECLARATION OF RIGHTS

SEC. 7. (a) A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws; provided, that nothing contained herein or elsewhere in this Constitution imposes upon the State of California or any public entity, board, or official any obligations or responsibilities which exceed those imposed by the Equal Protection Clause of the 14th Amendment to the United States Constitution with respect to the use of pupil school assignment or pupil transportation. In enforcing this subdivision or any other provision of this Constitution, no court of this State may impose upon the State of California or any public entity, board, or official any obligation or responsibility with respect to the use of pupil school assignment or pupil transportation, (1) except to remedy a specific violation by such party that would also constitute a violation of the Equal Protection Clause of the 14th Amendment to the United States Constitution, and (2) unless a federal court would be permitted under federal decisional law to impose that obligation or responsibility upon such party to remedy the specific violation of the Equal Protection Clause of the 14th Amendment of the United States Constitution.

Except as may be precluded by the Constitution of the United States, every existing judgment, decree, writ, or other order of a court of this State, whenever rendered, which includes provisions regarding pupil school assignment or pupil transportation, or which requires a plan including any such provisions shall, upon application to a court having jurisdiction by any interested person, be modified to conform to the provisions of this subdivision as amended, as applied to the facts which exist at the time of such modification.

In all actions or proceedings arising under or seeking application of the amendments to this subdivision proposed by the Legislature at its 1979-80 Regular Session, all courts, wherein such actions or proceedings are or may hereafter be pending, shall give such actions or proceedings first precedence over all other civil actions therein.

Nothing herein shall prohibit the governing board of a school district from voluntarily continuing or commencing a school integration plan after the effective date of this subdivision as amended.

In amending this subdivision, the Legislature and people of the State of California find and declare that this amendment is necessary to serve compelling public interests, including those of 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.

(b) A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens. Privileges or immunities granted by the Legislature may be altered or revoked.

 

Jackson v. Pasadena City School Dist. (1963), 59 Cal.2d 876

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

[Opinion by] Gibson, C.J.]

Jay Jackson, a 13-year-old Negro boy, brought this mandamus proceeding to compel defendants to permit him to transfer from the Washington Junior High School to the Eliot Junior High School. In July 1961 the board adopted zone boundaries for junior high schools, and, instead of placing the Linda Vista area in the Washington zone, the board arbitrarily gerrymandered the McKinley zone to include that area. This was done for the purpose of instituting, maintaining, and intensifying racial segregation at Washington, relegating to a single junior high school a substantial proportion of all Negro pupils, and permitting most white pupils to avoid attendance at schools where substantial numbers of Negroes are enrolled. As so established, Washington is a racially segregated school which is inherently inferior to other junior high schools in the district. Plaintiff, who resides in the Washington zone, is required by the board to attend the Washington school, with the result that he is denied equal opportunity for public school education. Plaintiff’s request for a transfer to Eliot, which is convenient for him to attend, was denied by the board.

A local board of education has power, in the exercise of reasonable discretion, to establish school attendance zones within the district, to determine the area that a particular school shall serve, and to require the students in that area to attend that school. It is obvious, however, that the general powers of the board with respect to attendance zones are subject to the constitutional guaranties of equal protection and due process.

The segregation of school children into separate schools because of their race, even though the physical facilities and the methods and quality of instruction in the several schools may be equal, deprives the children of the minority group of equal opportunities for education and denies them equal protection and due process of the law.

The constitutional rights of children not to be discriminated against in school admission on the grounds of race or color cannot be nullified by state action either openly and directly or indirectly by evasive schemes for segregation, and the Fourteenth Amendment is violated where zoning is merely a subterfuge for producing or perpetuating racial segregation in a school. Although in general the federal cases have been concerned with instances of complete or almost complete segregation, it is not decisive that absolute segregation is not present. Improper discrimination may exist notwithstanding attendance by some white children at a predominantly Negro school or attendance by some Negro children at a predominantly white school.

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. Thus, some schools may have a disproportionately high percentage of Negro students even though there is no intent by school authorities to discriminate against them. Here, however, it is alleged that the existing imbalance has been intensified by purposeful and unreasonable action on the part of the board. The fact that the gerrymandering of the McKinley zone is not alleged to have changed the physical boundaries of Washington or its racial composition does not mean that the gerrymandering did not constitute discrimination against plaintiff and the other Negro pupils at Washington. A racial imbalance may be created or intensified in a particular school not only by requiring Negroes to attend it 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.

Although it is alleged that the board was guilty of intentional discriminatory action, it should be pointed out that even in the absence of gerrymandering or other affirmative discriminatory conduct by a school board, a student under some circumstances would be entitled to relief where, by reason of residential segregation, substantial racial imbalance exists in his school. 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 consequences of segregation require that school boards take steps, insofar as reasonably feasible, to alleviate racial imbalance in schools regardless of its cause.

School authorities, of course, are not required to attain an exact apportionment of Negroes among the schools, and consideration must be given to the various factors in each case, including the practical necessities of governmental operation. For example, consideration should be given, on the one hand, to the degree of racial imbalance in the particular school and the extent to which it affects the opportunity for education and, on the other hand, to such matters as the difficulty and effectiveness of revising school boundaries so as to eliminate segregation and the availability of other facilities to which students can be transferred.

 

Santa Barbara School Dist. v. Superior Court (1975), 13 Cal.3d 315

Santa Barbara School District v. Superior Court (1975). 13 Cal.3d 315, 530 P.2d 605

SULLIVAN, J.

In this class action brought against two school districts and their common governing board of education, we are called upon to determine the validity of a desegregation plan for elementary schools. Our task also requires us to examine and pass upon the constitutionality of a recent initiative measure [Prop 21] enacting certain anti-busing legislation and repealing existing statutes dealing with the prevention and elimination of racial and ethnic imbalance in pupil enrollment. We first turn our attention to the desegregation plan.

[During local administrative proceedings to desegregate the Santa Barbara School District,] an additional factor was injected into the resolution of the proceeding with the adoption by the electorate at the general election held on November 7, 1972, of the initiative measure denominated Proposition 21. Section 1 of that proposition added to the Education Code section 1009.6 providing: “No public school student shall, because of his race, creed, or color, be assigned to or be required to attend a particular school.” Sections 2 and 3 of Proposition 21 repealed sections 5002 and 50033 respectively of the Education Code, which had declared the state policy of eliminating racial imbalance in California schools and had delineated the various factors to be considered in implementing this policy.

In 1970 the Legislature had added to the Education Code,4 section 1009.5 which provided: “No governing board of a school district shall require any student or pupil to be transported for any purpose or for any reason without the written permission of the parent or guardian.” This court in San Francisco Unified School Dist. v. Johnson (1971) 3 Cal.3d 937 [92 Cal.Rptr. 309, 479 P.2d 669] observed that this section was reasonably susceptible of two interpretations: “The ambiguity of section 1009.5 inheres in the phrase ‘required any student or pupil to be transported.’ One may ‘require’ a student to be transported by punishing a refusal or by physically forcing him onto a school bus; in a second sense, one may ‘require’ a student to be transported by assigning him to a school beyond walking distance of his home.”

Shortly after our decision in Johnson, the Legislature passed the Bagley Act adding sections 5002 and 5003 which directed school districts to “eliminate racial and ethnic imbalance in pupil enrollment” and specified certain factors to be considered in developing plans to achieve racial balance. The proponents of Proposition 21 in their published argument in support of the proposition characterized the Bagley Act as a “forced integration measure … which could only be accomplished through forced busing … without regard to neighborhood schools or parental consent.” They asserted opposition to “mandatory busing for the sole purpose of achieving forced integration” and to “reassigning pupils from their neighborhood schools to achieve racial and ethnic balance.” Proposition 21 purported to eliminate this evil by repealing the Bagley Act as well as the complementary administrative regulations, and by adding section 1009.6 which would prohibit forced integration and mandatory busing by denying the school district’s power to assign pupils to schools on the basis of race.

Defendants and various amici curiae urge that Proposition 21 is unconstitutional in its entirety, both insofar as it added section 1009.6 and as it repealed sections 5002 and 5003 along with the administrative guidelines.

We declared in Johnson that section 1009.5, if construed to bar assignment of pupils to a school beyond reasonable walking distance “would be unconstitutional if applied to districts manifesting racial segregation, whether de jure or de facto in character.” Section 1009.6 which bars the assignment of pupils on the basis of race is unconstitutional in the same manner and for the same reasons set forth by us in Johnson. We deem it unnecessary to repeat here at length our rationale in that case; our opinion speaks for itself. We merely outline here its essentials, and underscore our conclusions with reference to subsequent United States Supreme Court cases.

First: We emphasized in Johnson that “Often the most effective program, and at times the only program, which will eliminate segregated schools requires pupil reassignment and busing. … Since the U.S. Supreme Court has held that under the Constitution school boards in de jure segregated districts are ‘clearly charged with the affirmative duty to take whatever steps might be necessary’ to eliminate segregation ‘root and branch,’ a statute which would proscribe a principal, and in some cases essential and exclusive step to achieve that end, must obviously violate constitutional requirements.”

The [United States] Supreme Court has continuously reiterated its commitment to eliminating de jure racial segregation and its unwillingness to accept any limitation upon procedures necessary to the resolute and thorough accomplishment of that task. To allow school authorities to rest content in the assumption that the pattern of segregation in their district is de facto and therefore to claim that section 1009.6 prohibits them from eliminating that segregation by pupil assignment on the basis of race implemented through busing, would impermissibly impede the constitutionally mandated task of rooting out de jure segregation. “If a state-imposed limitation on a school authority’s discretion operates to inhibit or obstruct the operation of a unitary school system or impede the disestablishing of a dual school system, it must fall; state policy must give way when it operates to hinder vindication of federal constitutional guarantees.”

Consistently with our earlier holding in Johnson and indeed under the compulsion of the decisions of the United States Supreme Court in Swann and Keyes which confirm our views in Johnson, we hold, as indeed we must, that section 1009.6 as applied to school districts manifesting either de jure or de facto segregation is unconstitutional.

 

Crawford v. Board of Education (Crawford I) (1976), 17 Cal.3d 280

Crawford v. Board of Education (1976), 17 Cal. 3d 280, 551 P.2d 28, 130 Cal. Rptr. 724

Opinion by Tobriner, J., expressing the unanimous view of the court.

Thirteen years ago, in Jackson v. Pasadena City School Dist. (1963) 59 Cal.2d 876 [31 Cal.Rptr. 606, 382 P.2d 878] (hereinafter Jackson) this court, in a unanimous decision authored by then Chief Justice Gibson, explicitly declared that “the segregation of school children into separate schools because of their race, even though the physical facilities and the methods and quality of instruction in the several schools may be equal, deprives the children of the minority group of equal opportunities for education and denies them equal protection and due process of the law.”  We held that as a consequence school boards in this state bear a constitutional obligation to undertake reasonably feasible steps to alleviate such racial segregation in the public schools, regardless of the cause of such segregation.

In the instant case, the trial court found that although the schools of the Los Angeles Unified School District were severely segregated and were becoming increasingly segregated, the defendant school board had failed to take any steps to attempt to alleviate the segregated condition, and indeed, had taken affirmative acts which contributed to and perpetuated the racial and ethnic segregation in its school system. On the basis of these findings, the court ordered the defendant school board to prepare and implement a reasonably feasible plan for the desegregation of its schools.

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.”

While we affirm the trial court’s order requiring the defendant board to prepare and implement a reasonably feasible desegregation plan, we shall point out that one portion of the judgment, defining “segregated” schools in terms of specific racial and ethnic percentages, is in error and must be modified on remand. Moreover, although no specific desegregation plan is presently before this court, we have concluded that in light of the crucial importance of the remedial aspects of the school desegregation problem and the considerable confusion that prevails as to the nature of a school district’s constitutional obligations, we should attempt to clarify the scope of the school board’s constitutional duty in this area. As we explain, the Constitution does not require a school board to achieve a particular or identical “racial mix” or “racial balance” in each school; rather, the constitutional evil inheres in the existence of segregated schools. It is the elimination of such segregation and the harms inflicted by such segregation that is the ultimate constitutional objective.

In light of the realities of the remedial problem, we believe that once a court finds that a school board has implemented a program which promises to achieve meaningful progress toward eliminating the segregation in the district, the court should defer to the school board’s program and should decline to intervene in the school desegregation process so long as such meaningful progress does in fact follow. A court should thus stay its hand even if it believes that alternative techniques might lead to more rapid desegregation of the schools. We have learned that the fastest path to desegregation does not always achieve the consummation of the constitutional objective; it may instead result in resegregation.

As noted above, the defendant school board generally concedes that its district’s schools are, in fact, substantially segregated, and that it has not prepared or implemented any general plan to attempt to alleviate such segregation. The board contends, however, that the segregation in its schools is de facto in origin, and therefore, that it bears no constitutional obligation to take any steps to attempt to alleviate the concededly racially and ethnically segregated status of its schools. [However,] as declared in Jackson v. Pasadena City School Dist., California school boards bear a constitutional obligation to take reasonably feasible steps to alleviate school segregation, whether such segregation is de jure or de facto in nature.

As we read recent federal cases, the issue as to whether school districts have an obligation under the federal Constitution to avoid the perpetuation of purely de facto school segregation remains an open question. In focusing primarily on these federal decisions, however, defendant ignores a significant line of California decisions, decisions which authoritatively establish that in this state school boards do bear a constitutional obligation to take reasonable steps to alleviate segregation in the public schools, whether the segregation be de facto or de jure in origin.

Jackson v. Pasadena City School Dist. is, of course, the seminal decision in this line of cases. Our decision in Jackson declared: “Although it is alleged that the board was guilty of intentional discriminatory action, it should be pointed out that even in the absence of gerrymandering or other affirmative discriminatory conduct by a school board, a student under some circumstances would be entitled to relief where, by reason of residential segregation, substantial racial imbalance exists in his school. 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 consequences of segregation require that school boards take steps, insofar as reasonably feasible, to alleviate racial imbalance in schools regardless of its cause.”

To begin with, wherever the origins or causes of school segregation may lie, we do not doubt that, under traditional constitutional doctrine, local school boards are so “significantly involved” in the control, maintenance and ongoing supervision of their school systems as to render any existing school segregation “state action” under our state constitutional equal protection clause. In California, school boards possess plenary authority to determine school assignment policies; to establish and reestablish geographic attendance zones; to determine where new schools will be built, what their size will be and what “neighborhood” they will serve; to create or eliminate transfer options between schools; and to establish specialized programs that may attract articular students to particular schools.  Given the school board’s pervasive control over and continuing responsibility for both the daily decisions and the long range plans which in fact determine the racial and ethnic attendance pattern of its district’s schools, past authorities demonstrate that the state cannot escape constitutional responsibility for the segregated condition of the public schools.

In light of the detrimental consequences that segregated schools have traditionally imposed on minority children, and a school board’s plenary authority over the governance of its schools, a school board in this state is not constitutionally free to adopt any facially neutral policy it chooses, oblivious to such policy’s actual differential impact on the minority children in its schools. As recent California decisions concerning the constitutional obligations of state officials have held, public  officials in some circumstances bear an affirmative obligation to design programs or frame policies so as to avoid discriminatory results.

Finally, the importance of adopting and implementing policies which avoid “racially specific” harm to minority groups takes on special constitutional significance with respect to the field of education, because, at least in this state, education has been explicitly recognized for equal protection purposes as a “fundamental interest.”

Thus, as we have seen, for more than a decade this court has adhered to the position that school boards in this state bear a constitutional obligation to attempt to alleviate school segregation, regardless of its cause. Although defendant urges our court, at this late date, to abandon this constitutional interpretation, we remain convinced of the soundness of our prior decisions, both as to the principle itself and as to the practical consequences that would follow if our court were now to embrace defendant’s suggested de facto-de jure distinction.

Moreover, although a school board’s establishment of and adherence to a “neighborhood school policy” may on its face represent the implementation of a “neutral,” constitutionally permissible classification scheme, the effect of such state action has invariably been to inflict a “racially specific” harm on minority students when such a policy actually results in segregated education.

Jackson’s conclusion that school boards in this state must take steps to alleviate school segregation, however caused, is not only  required by application of state equal protection principles, but, in addition, by consideration of the deleterious practical consequences that would inevitably flow from our adoption of the de jure-de facto distinction. Finally, and most fundamentally, even if courts could satisfactorily distinguish de facto from de jure segregation and even if the effect of such judicial effort would not provide a haven for intractable school boards, the judiciary must still face the ultimate reality that in California in the 1970’s the de facto-de jure distinction retains little, if any, significance for the children whose constitutional rights are at issue here. Although the educational experts may disagree on many aspects of the desegregation controversy, there is virtually no dispute that the practical effect of segregated schooling on minority children does not depend upon whether a court finds the segregation de jure or de facto in nature; the isolating and debilitating effects do not vary with the source of the segregation.

In California, all public school districts bear an obligation under the state Constitution to undertake reasonably feasible steps to alleviate school segregation, regardless of the cause of such segregation. In determining whether a particular school is “segregated” for constitutional purposes, we do not believe set racial or ethnic percentages can be established, either in absolute terms or in terms of the racial composition of a particular district’s student population. Under the California Constitution, as under the federal Constitution, “what is or is not a segregated school will necessarily depend on the facts of each particular case. In addition to the racial and ethnic composition of a school’s student body, other factors, such as the racial and ethnic composition of faculty and [staff, and the community and administration attitudes toward the school, must be taken into consideration.”

So long as a local school board initiates and implements reasonably feasible steps to alleviate school segregation in its district, and so long as such steps produce meaningful progress in the alleviation of such segregation, and its harmful consequences, we do not believe the judiciary should intervene in the desegregation process. Under such circumstances, a court thus should not step in even if it believes that alternative desegregation techniques may produce more rapid desegregation in the school district.

If, however, a court finds that a local school board has not implemented such a course of action, the court is left with no alternative but to intervene to protect the constitutional rights of minority children. Faced with a recalcitrant or intractable school board, a trial court may exercise broad equitable powers in formulating and supervising a plan which the court finds will insure meaningful progress to alleviate the harmful consequences of school segregation in the district. When a local school board defaults in its constitutional task, a court may no longer be justified in relying upon the board to implement programs which hold a reasonable promise for securing the rights of minority children.

Although we have not specifically addressed the volatile issue of “busing” in our discussion above, we believe that the general principles we have outlined are equally applicable to that matter. While critics have sometimes attempted to obscure the issue, court decisions time and time again have emphasized that “busing” is not a constitutional end in itself but is simply one potential tool which may be utilized to satisfy a school district’s constitutional obligation in this field. As with the numerous desegregation techniques adverted to above, in some circumstances busing will be an appropriate and useful element in a desegregation plan, while in other instances its “costs,” both in financial and educational terms, will render its use inadvisable.  Although a court cannot properly issue a “busing” order so long as a school district continues to meet its constitutional obligations, once a school board defaults in its constitutional task, the court, in devising a remedial order, is not precluded from requiring the busing of children as part of a reasonably feasible desegregation plan.

 

Crawford v. Board of Education (Crawford II) (1980), 113 Cal.App.3d 633

Crawford v. Board of Education of the City of Los Angeles (1980), 113 Cal.App.3d 633, 170 Cal.Rptr. 495

THE COURT:

The issues are whether the amendment to article I, section 7(a), of the California Constitution, adopted November 6, 1979, on pupil school assignment and pupil transportation (Proposition 1) violates the United States Constitution, and, if it does not, whether the remedial order entered by the superior court on July 7, 1980, in the Los Angeles School District desegregation cause entitled Crawford v. Board of Education contravenes article I, section 7(a) of the California Constitution.

On November 6, 1979, the voters of the state approved Proposition 1, an initiative measure which amended article I, section 7(a), of the California Constitution.1 The effect of the amendment was to prohibit state courts, in desegregation cases, from ordering school boards to mandatorily reassign and transport pupils on the basis of race, except to remedy a violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution under circumstances which would authorize a federal court under federal decisional law to issue such an order. Plaintiffs contend . . . that in any event the amendment to the California Constitution brought about by Proposition 1 is itself unconstitutional and violative of the United States Constitution.

Both California and federal law pertaining to segregation in the public schools have a common origin in the United States Supreme Court decision of Brown v. Board of Education (1954). But thereafter California and federal law followed parallel but somewhat different courses. As we will develop, the clear impact of Proposition 1 is to bring one aspect of California law into conformity with federal law.

The objective of the Brown decision, and of the cases later implementing it, was to dismantle officially-imposed dual school systems. Once a dual system has been dismantled and a unitary system established, a school board is under no affirmative federal duty to adjust attendance to comport with shifting and changing neighborhood racial patterns, so long as the changes are attributable to private conduct. (Pasadena City Bd. of Education v. Spangler (1976) 427 U.S. 424). The scope of federal constitutional law in this field was clarified over the ensuing years in a series of decisions rendered by the United States Supreme Court at a time subsequent to the findings and conclusions of the original trial judge herein in 1970.

Clarification began with Swann v. Charlotte-Mecklenburg Bd. of Educ. (1971) 402 U.S. 1, a southern school desegregation case concerning remedies available to a federal court to desegregate a legally segregated school system. Two of its points are relevant here. No particular degree of racial balance or mix is required to desegregate a school. Absent a constitutional violation a federal court has no authority to assign students to schools on the basis of race. The next development came in Keyes v. School District No. 1 (1973) 413 U.S. 189, a case of deliberate, intentional racial segregation in a western city. The court declared that to establish unlawful segregation in violation of the Fourteenth Amendment “plaintiffs must prove not only that segregated schooling exists but also that it was brought about or maintained by intentional state action (consisting of) an unconstitutional policy of deliberate racial segregation ” De jure segregation, said the court, comprehends purpose or intent to segregate. Thereafter followed the decision in Washington v. Davis (1976) 426 U.S. 229, a case involving claimed racial discrimination in police officer tests. In discussing the Fourteenth Amendment’s prohibition against official discrimination on the basis of race, the court declared that the discrimination must be purposeful. In respect to school desegregation it said: “The school desegregation cases have also adhered to the basic equal protection principle that the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose. That there are both predominantly black and predominantly white schools in a community is not alone violative of the Equal Protection Clause. The essential element of de jure segregation is ‘a current condition of segregation resulting from intentional state action.

Next came Pasadena City Bd. of Education v. Spangler (1976) 427 U.S. 424, a case involving termination of an existing desegregation plan. The original plan had established a racially neutral school system, said the court, and from that point on the power of the district court to order assignment of pupils to schools on the basis of race came to an end, even though subsequent population shifts had brought about a degree of resegregation. Absent a constitutional violation there is no basis for judicial assignment of pupils on a racial basis.

Most recently, in Columbus Board of Education v. Penick (1979) 443 U.S. 449, the court again observed that the conduct prohibited to school boards is intentional segregation. Plaintiffs must prove that school officials intended to segregate, said the court. “Disparate impact and foreseeable consequences, without more, do not establish a constitutional violation.” And in the companion case of Dayton Board of Education v. Brinkman (1979) 443 U.S. 526 (Dayton II ), the court said: “We have never held that as a general proposition the foreseeability of segregative consequences makes out a prima facie case of purposeful racial discrimination.”

The foregoing decisions of the United States Supreme Court clearly identify constitutional violations of the Fourteenth Amendment as instances which involve intentional segregative state action taken with discriminatory purpose. In more familiar terms we can describe this intent as specific intent to discriminate. Only such a violation authorizes a federal court to give orders to a local school board on the conduct of school business. A correlative of this rule is that racial isolation which has resulted from causes other than intentional discrimination does not constitute a violation of the Fourteenth Amendment. In sum, the federal Constitution does not require integration, it only prohibits state-compelled segregation. This subsequently-developed frame of reference for addressing claims of the denial of equal protection of the laws by reason of racial imbalance in public schools is a natural extension of the rationale of Brown v. Board of Education, in that it is intentional or purposeful segregation which produces feelings of inferiority in minority students and the consequent damaging psychological effects.

With the scope of federal law in mind, we analyze the situation as it existed in the District in 1970 at the time the trial court entered its original findings of fact and conclusions of law, a time prior to the clarification we have just discussed of the scope of the Fourteenth Amendment in school desegregation cases.

Patently, the trial court in 1970 took the view that the federal Constitution required elimination of school segregation, regardless of its cause and irrespective of the existence of state action intended with discriminatory purpose to bring about segregation. On this basic premise the trial court deduced the existence of de jure segregation from such neutral acts as maintenance of a neighborhood school system, siting of schools in the geographic center of their need, assignment of pupils to neighborhood schools, and failure to provide free transportation for open transfers. Having found a federal constitutional violation, the trial court then declared that a pupil has no right to choose which public school he will attend, and that the Board has an affirmative duty to provide equal educational opportunity by compelling its pupils to attend schools on the basis of their race or color.

The trial court made these deductions and inferences in 1970 at a time it did not have the benefit of the more recent decisions of the United States Supreme Court. In the intervening period that court has made it clear that the federal Constitution only authorizes court assignment and transportation of pupils on the basis of race when there has been state action which intentionally segregates with discriminatory purpose. If no such state action has occurred, elimination or alleviation of racial segregation which has resulted from economic causes and from neighborhood residential patterns is a matter left to local school authorities.

In recent school desegregation cases the labels de facto and de jure have fallen into desuetude and no longer appear to be in general use in United States Supreme Court opinions. With the advent of the recent, more precise identification of unconstitutional segregation, the terms de jure and de facto segregation appear to have outlived their usefulness, and a federal constitutional violation of the Fourteenth Amendment in a school desegregation cause is now accurately identified as state action taken with specific segregative intent and discriminatory purpose. When the 1970 findings of the trial court are reviewed in the light of the correct applicable federal law, it is apparent that no specific segregative intent with discriminatory purpose was found.

In sum, no federal violation of law was established by the 1970 findings, and the trial court’s identification of the then existing racial segregation within the Los Angeles school system as de jure segregation was true only in a Pickwickian [i.e., idiosyncratic or unusual] sense, and was not true at all in the sense of federal law. Because there was no evidence of acts done with specific segregative intent and discriminatory purpose, there was no federal constitutional violation-regardless of the terminology used by the court.

Absent some specific intent on the part of the Board to maintain inferior minority schools in order to perpetrate racial segregation, its delinquency in this respect raises separate issues which are curable by separate remedies. If older schools in central districts are run-down and overcrowded and have not received the extra maintenance owed to them by reason of their age, and if senior teachers prefer to teach in suburban schools rather than in central schools, the Board must take positive action to equalize school facilities and equalize the quality of teaching throughout its several schools. Such has been the law in California for many years, most conspicuously set out in Serrano v. Priest (1971). The court there observed that in instances of unequal expenditures for schools the discrimination is one based on wealth and not on race. So here. The problem of unequal facilities is not directly connected with the problem of racial segregation. The problem of differential quality among schools is not solved by assignment of pupils to particular schools on the basis of race, but is solved by allocation of extra money and assignment of senior teachers to the poorer schools. The two problems frequently parallel one another but they are distinct and different problems. Only the problem of racial and ethnic segregation is directly involved in the cause at bench.

From the foregoing recital of the cause and of the United States Supreme Court desegregation decisions we conclude that the racial imbalance and segregation which existed in many schools in the District and the Board’s actions in relation thereto did not constitute a violation of the equal protection clause of the Fourteenth Amendment as interpreted by the United States Supreme Court, in that racial imbalance and segregation did not result from Board acts performed with segregative intent and discriminatory purpose. It follows that federal courts would not be authorized under federal decisional law to require pupil school assignment or transportation by race to remedy the imbalance. Thus article 1, section 7(a), of the California Constitution, as it now reads, operates to prohibit the trial court from ordering assignment and transportation of pupils on the basis of race unless this section of the California Constitution itself violates the Fourteenth Amendment to the United States Constitution.

The remaining question is the federal constitutionality of a state constitutional amendment conforming state court use of mandatory assignment and transportation of pupils on the basis of race to that authorized for the federal courts under the Fourteenth Amendment.

When the cause at bench, Crawford v. Board of Education (1976), came before the California Supreme Court, state law on this subject was formally severed from federal law, and school boards were placed under an affirmative duty to undertake reasonably feasible steps to alleviate racial segregation in public schools regardless of the cause of the segregation. The existence of the duty was derived both from state decisional law and from the equal protection clause in article I, section 7(a), of the California Constitution. The cause was then remanded to the trial court with instructions to supervise the preparation and implementation of a reasonably feasible desegregation plan.

Subsequent to remand but before the trial court made its definitive order of July 7, 1980, article I, section 7(a), of the California Constitution was amended to remove “busing” (pupil school assignment and pupil transportation) from the arsenal of techniques available to a state court to alleviate racial school segregation caused by economic, geographic, and demographic factors and not by intentional segregation with discriminatory purpose.

Plaintiffs assert [that] Proposition 1 is either unconstitutional in its entirety or unconstitutional as applied to this cause. To support their assertion that Proposition 1 is contrary to the Fourteenth Amendment plaintiffs advance three arguments: (1) Proposition 1 removes a previously given state right, (2) it reflects intent to segregate with discriminatory purpose, and (3) it retroactively divests plaintiffs of adjudicated rights.5

1. Removal of a previously given state right.

If a state is not under a federal duty to adopt a particular act in the first place (such as rectification of racial imbalance in its schools which has resulted from population shifts), rescission of the act cannot be unconstitutional. We conclude that as a matter of federal constitutional law California can conform its constitutional protection of rights in this and other areas to those given under the United States Constitution, even though the specific protection under the California Constitution might have previously exceeded that under the federal Constitution. In short, we do not believe a state constitutional amendment can be said to violate the Fourteenth Amendment by specifically embracing it.

2. Improper discriminatory purpose.

The argument here is that Proposition 1 was passed with segregative intent and discriminatory purpose. A sufficient answer may be found in the constitutional amendment itself, which declares the amendment is necessary to make most effective use of the limited resources available for public education, to maximize educational opportunities, to protect the health and safety of pupils, to enhance the ability of parents to participate in the educational process, and to prevent the waste of scarce fuel resources. We think it pure speculation to suppose that voters who supported Proposition 1’s restrictions on mandatory school assignment by race of children outside their home areas were motivated by specific intent to effect racial segregation and by discriminatory purpose.

3. Deprivation of vested rights.

Plaintiffs’ final argument against the application of Proposition 1 to this cause is that it wrongfully deprives minority children of their vested right to a desegregated education. We do not believe any pupil has a vested right to require other pupils to be assigned to public schools on the basis of race. The sole vested right involved, if that is the proper phrase, is the right of a pupil to receive an education which is not intentionally segregated and to attend a school where the school board has performed its duty to take all reasonable steps to alleviate segregation, regardless of cause.

In sum, article I, section 7(a), does not intentionally authorize or perpetuate segregation with discriminatory purpose. In requiring that remedial aspects of the duty to desegregate conform to the requirements of the Fourteenth Amendment as interpreted by the decisions of the United States Supreme Court, it merely provides a more precise contour to the duty established by California law and court decisions to desegregate public schools regardless of cause. We conclude that Proposition 1 does not violate the federal Constitution and that its application to this cause is constitutional under the Fourteenth Amendment.

 

BUSTOP Inc. v. Board of Education, 439 U.S. 1380 1978)

Mr. Justice REHNQUIST, Circuit Justice.

Applicant BUSTOP, Inc., supported by the Attorney General of California, requests that I stay, pending the filing of a petition for certiorari or an appeal, the order of the Supreme Court of California. That order vacated a supersedeas or stay issued by the California Court of Appeal, which had in turn stayed the enforcement of a school desegregation order issued by the Superior Court of Los Angeles County.

The desegregation plan challenged by applicant apparently requires the reassignment of over 60,000 students. In terms of numbers it is one of the most extensive desegregation plans in the United States. The essential logic of the plan is to pair elementary and junior high schools having a 70% or greater Anglo majority with schools having more than a 70% minority enrollment. Paired schools are often miles apart, and the result is extensive transportation of students

Were the decision of the Supreme Court of California premised on the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, I would be inclined to agree with the conclusion of the California Court of Appeal that the remedial order entered by the Superior Court in response to earlier decisions of the Supreme Court of California was inconsistent with our decisions cited above. But the earlier opinions of the Supreme Court of California in this case, Crawford v. Board of Education (1976) , and Jackson v. Pasadena City School District (1963), construe the California State Constitution to require less of a showing on the part of plaintiffs who seek court-ordered busing than this Court has required of plaintiffs who seek similar relief under the United States Constitution. Although the California Court of Appeal is of the view that this Court’s cases would require a different result from that reached by the Supreme Court of California in Crawford, and although the order of the Supreme Court of California issued Wednesday was not accompanied by a written opinion, in the short time available to me to decide this matter I think the fairest construction is that the Supreme Court of California continues to be of the view which it announced in Jackson and adhered to in Crawford.

The only authority that a federal court has to order desegregation or busing in a local school district arises from the United States Constitution. But the same is not true of state courts. So far as this Court is concerned, they are free to interpret the Constitution of the State to impose more stringent restrictions on the operation of a local school board.

Applicant phrases its contention in this language: “Unlike desegregation cases coming to this Court through the lower federal courts, of which there must be hundreds, if not thousands, here the issue is novel. The issue: May California in an attempt to racially balance schools use its doctrine of independent state grounds to ignore the federal rights of its citizens to be free from racial quotas and to be free from extensive pupil transportation that destroys fundamental rights of liberty and privacy.”

But this is not the traditional argument of a local school board contending that it has been required by court order to implement a pupil assignment plan which was not justified by the Fourteenth Amendment to the United States Constitution. The argument is indeed novel, and suggests that each citizen of a State who is either a parent or a schoolchild has a “federal right” to be “free from racial quotas and to be free from extensive pupil transportation that destroys fundamental rights of liberty and privacy.” While I have the gravest doubts that the Supreme Court of California was required by the United States Constitution to take the action that it has taken in this case, I have very little doubt that it was permitted by that Constitution to take such action.

 Crawford v. Board of Education (Crawford III), 458 U.S.527 (1982)

Justice POWELL delivered the opinion of the Court.

An amendment to the California Constitution provides that state courts shall not order mandatory pupil assignment or transportation unless a federal court would do so to remedy a violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. The question for our decision is whether this provision is itself in violation of the Fourteenth Amendment.

This litigation began almost 20 years ago in 1963, when minority students attending school in the Los Angeles Unified School District (District) filed a class action in state court seeking desegregation of the District’s schools.1 The case went to trial some five years later, and in 1970 the trial court issued an opinion finding that the District was substantially segregated in violation of the State and Federal Constitutions. The court ordered the District to prepare a desegregation plan for immediate use. On the District’s appeal, the California Supreme Court affirmed, but on a different basis [Crawford I]. While the trial court had found de jure segregation in violation of the Fourteenth Amendment of the United States Constitution, the California Supreme Court based its affirmance solely upon the Equal Protection Clause of the State Constitution.2 The court explained that under the California Constitution “state school boards … bear a constitutional obligation to take reasonable steps to alleviate segregation in the public schools, whether the segregation be de facto or de jure in origin.” The court remanded to the trial court for preparation of a “reasonably feasible” plan for school desegregation.

In November 1979 the voters of the State of California ratified Proposition I, an amendment to the Due Process and Equal Protection Clauses of the State Constitution.5 Proposition I conforms the power of state courts to order busing to that exercised by the federal courts under the Fourteenth Amendment.

We agree with the California Court of Appeal in rejecting the contention that once a State chooses to do “more” than the Fourteenth Amendment requires, it may never recede.11 We reject an interpretation of the Fourteenth Amendment so destructive of a State’s democratic processes and of its ability to experiment. This interpretation has no support in the decisions of this Court.

Proposition I does not inhibit enforcement of any federal law or constitutional requirement. Quite the contrary, by its plain language the Proposition seeks only to embrace the requirements of the Federal Constitution with respect to mandatory school assignments and transportation. It would be paradoxical to conclude that by adopting the Equal Protection Clause of the Fourteenth Amendment, the voters of the State thereby had violated it. Moreover, even after Proposition I, the California Constitution still imposes a greater duty of desegregation than does the Federal Constitution. The state courts of California continue to have an obligation under state law to order segregated school districts to use voluntary desegregation techniques, whether or not there has been a finding of intentional segregation.

We would agree that if Proposition I employed a racial classification it would be unconstitutional unless necessary to further a compelling state interest. But Proposition I does not embody a racial classification. It neither says nor implies that persons are to be treated differently on account of their race. It simply forbids state courts to order pupil school assignment or transportation in the absence of a Fourteenth Amendment violation.

Similarly, the Court has recognized that a distinction may exist between state action that discriminates on the basis of race and state action that addresses, in neutral fashion, race-related matters. This distinction is implicit in the Court’s repeated statement that the Equal Protection Clause is not violated by the mere repeal of race-related legislation or policies that were not required by the Federal Constitution in the first place.

Were we to hold that the mere repeal of race-related legislation is unconstitutional, we would limit seriously the authority of States to deal with the problems of our heterogeneous population. States would be committed irrevocably to legislation that has proved unsuccessful or even harmful in practice. And certainly the purposes of the Fourteenth Amendment would not be advanced by an interpretation that discouraged the States from providing greater protection to racial minorities. Nor would the purposes of the Amendment be furthered by requiring the States to maintain legislation designed to ameliorate race relations or to protect racial minorities but which has produced just the opposite effects. Yet these would be the results of requiring a State to maintain legislation that has proved unworkable or harmful when the State was under no obligation to adopt the legislation in the first place. Moreover, and relevant to this case, we would not interpret the Fourteenth Amendment to require the people of a State to adhere to a judicial construction of their State Constitution when that Constitution itself vests final authority in the people.

In short, having gone beyond the requirements of the Federal Constitution, the State was free to return in part to the standard prevailing generally throughout the United States. It could have conformed its law to the Federal Constitution in every respect. That it chose to pull back only in part, and by preserving a greater right to desegregation than exists under the Federal Constitution, most assuredly does not render the Proposition unconstitutional on its face.

Under decisions of this Court, a law neutral on its face still may be unconstitutional if motivated by a discriminatory purpose. In determining whether such a purpose was the motivating factor, the racially disproportionate effect of official action provides “an ‘important starting point.’ Proposition I in no way purports to limit the power of state courts to remedy the effects of intentional segregation with its accompanying stigma. The benefits of neighborhood schooling are racially neutral. This manifestly is true in Los Angeles where over 75% of the public school body is composed of groups viewed as racial minorities. Moreover, the Proposition simply removes one means of achieving the state-created right to desegregated education. School districts retain the obligation to alleviate segregation regardless of cause. And the state courts still may order desegregation measures other than pupil school assignment or pupil transportation.

Even if we could assume that Proposition I had a disproportionate adverse effect on racial minorities, we see no reason to challenge the Court of Appeal’s conclusion that the voters of the State were not motivated by a discriminatory purpose. In this case the Proposition was approved by an overwhelming majority of the electorate. It received support from members of all races. The purposes of the Proposition are stated in its text and are legitimate, nondiscriminatory objectives. In these circumstances, we will not dispute the judgment of the Court of Appeal or impugn the motives of the State’s electorate.

Accordingly the judgment of the California Court of Appeal is

Affirmed.

Justice MARSHALL, dissenting.

In their generosity, California voters have allowed those seeking racial balance to petition the very school officials who have steadfastly maintained the color line at the schoolhouse door to comply voluntarily with their continuing state constitutional duty to desegregate. At the same time, the voters have deprived minorities of the only method of redress that has proved effective-the full remedial powers of the state judiciary. In the name of the State’s “ability to experiment,” the Court today allows this placement of yet another burden in the path of those seeking to counter the effects of nearly three centuries of racial prejudice. Because this decision is neither justified by our prior decisions nor consistent with our duty to guarantee all citizens the equal protection of the laws, I must dissent.

 

McKinny v. Board of Trustees (1982), 31 Cal.3d 79

McKinny v. Board of Trustees of the Oxnard Union High School District (1982), 31 Cal.3d 79, 642 P.2d 460

MOSK, J.

In 1963, we recognized for the first time the constitutional duty of local school authorities to make an effort to eliminate racial segregation in this state’s schools. The present case concerns the procedures local school boards must follow when seeking to comply with the mandate of Crawford. We also review the trial court’s refusal to enjoin implementation of a desegregation plan adopted by the Oxnard Union High School District in light of the subsequent passage of the “anti-busing” amendment, a 1979 initiative measure amending California Constitution, article I, section 7, subdivision (a).

After entry of judgment in this action, the voters amended California’s equal protection clause by adopting a measure known as Proposition 1, which provides in part: “In enforcing [the state equal protection clause] or any other provision of this Constitution, no court of this state may impose upon the State of California or any public entity, board, or official any obligation or responsibility with respect to the use of pupil school assignment or pupil transportation, (1) except to remedy a specific violation by such party that would also constitute a violation of the Equal Protection Clause of the 14th Amendment of the United States Constitution, and (2) unless a federal court would be permitted under federal decisional law to impose that obligation or responsibility upon such party to remedy the specific violation of the Equal Protection *92 Clause of the 14th Amendment of the United States Constitution.” (Cal. Const., art. I, § 7, subd. (a).)

As a preliminary matter, we consider to what extent this amendment affected our decision in Crawford, which reaffirmed the judicially enforceable obligation of local school boards to attempt to remedy segregation in schools, whether or not caused by actions of the board. Federal decisions, in contrast, require a showing of intentionally discriminatory acts contributing to a present pattern of segregation before a school board can be required to take steps to desegregate its schools.

Proposition 1 conforms a school board’s obligations with respect to “pupil school assignment” and “pupil transportation” to those duties imposed by the federal equal protection clause; it prohibits California courts from ordering changes in “pupil school assignment” or “pupil transportation” unless there has been a federal constitutional violation and federal case law would permit such a remedy. However, the amendment neither releases school districts from their state constitutional obligation to take reasonably feasible steps to alleviate segregation regardless of its cause, nor divests California courts of authority to order desegregation measures other than pupil school assignment or pupil transportation. When a school district fails to fulfill its state constitutional obligations, we retain our power to compel, for example, school closure, school site selection, creation of special “magnet schools,” curriculum changes, or other steps to overcome the adverse effects of school segregation. Proposition 1 expressly refrained from interfering with the power of school boards to voluntarily implement any desegregation measures they might choose.

Although racial imbalance of students may be the primary indicator of segregation, it is not the only element to be considered; local boards are obligated to weigh a number of factors in determining the existence of segregation. To the extent that the Regulations suggest that it is appropriate for school boards to formulate per se, mathematical rules for defining segregation – relying solely on racial composition data – they are inconsistent with Crawford and are hereby disapproved.

San Francisco Unified School Dist. v. Johnson (1971), 3 Cal.3d 937

San Francisco Unified School District v. Johnson (1971), 3 Cal.3d 937, 479 P.2d 669, 92 Cal.Rptr. 309

TOBRINER, J.

In this action for mandamus we are called upon to determine the interpretation and constitutionality of Education Code section 1009.5, which provides that “no governing board of a school district shall require any student or pupil to be transported for any purpose or for any reason without the written permission of the parent or guardian.” We hold that section 1009.5 does no more than prohibit a school district from compelling students, without parental consent, to use means of transportation furnished by the district; so construed, section 1009.5 violates no constitutional mandate.

We do not believe the section should be interpreted to prohibit the board from assigning a student to a particular school without parental consent, even if such assignment would involve busing. We reach these conclusions by application of the principle that a statute which is reasonably susceptible of two constructions should be interpreted so as to render it constitutional. We shall point out that if section 1009.5 were read to limit the school board’s authority over pupil assignment it would impinge upon constitutional principles.

More specifically, as we shall later explain in detail, a construction of section 1009.5, prohibiting nonconsensual pupil assignment, first, would involve the parents of school children in that assignment process, a state function, and would fail to foreclose conduct of parents designed to foster racial segregation. This interpretation would render the statute unconstitutional on its face in that, so interpreted, section 1009.5 would create a parental right to discriminate, interposing such a debilitory power upon the board in its effort to achieve integration. Second, the United States Supreme Court has held that school districts which maintain “de jure” segregated systems must eliminate such imbalance and establish unitary systems; yet the realization of that objective may very well require the reassignment of students without parental consent. Third, school boards, administering “de facto” segregated systems may bear an equivalent constitutional duty; in any event, to the extent that the statute involves the state in the preservation of such segregation, the legislation protects the very condition which the Constitution as interpreted by the United States Supreme Court, has condemned.

Nothing we say here should be considered to require the use of district transportation or busing for purposes of integration or for any other purpose. We are concerned only with the interpretation of a statute. If read in one way, that statute could be construed to prohibit nonconsensual busing in order to achieve racial integration; we point out that the section not only does not compel such a construction but also that any such interpretation would encounter constitutional difficulties.

In rejecting the construction that the statute strips a school board of the right to assign pupils to schools not within walking distance of their homes without parental consent, we do not assert that such assignment is in all instances constitutionally compelled. In some situations, however, it is the only practical and efficient method of achieving school integration. An enactment which by flat legislative fiat, prohibits any and all such assignments, exorcising a method that in many circumstances is the sole and exclusive means of eliminating racial segregation in the schools, necessarily legislates the preservation of racial imbalance. It therefore violates constitutional imperatives.

We turn first to the arguments advanced by respondent in favor of a construction which would apply section 1009.5 to pupil assignments. Respondent contends that the Legislature enacted section 1009.5 for the purpose of granting parents an absolute right to prevent their children from being transported by school bus; the effective protection of this right, he contends, requires a construction of the statute which prevents school boards from assigning students to distant schools since, as a practical matter, the students may be compelled to ride school buses to get to those schools.

We agree with respondent that section 1009.5 confers upon the parent the right to reject compulsory busing and, instead, choose to transport his child by some other means more convenient to the parent and child. Respondent, however, assumes a further legislative intent to permit the parent to reject all modes of travel to a school except the walking of a “reasonable walking distance” from the child’s home, thus permitting the parent effectively to reject an assignment of his child to a school beyond such distance and, in the absence of a school within such distance, to reject access to the educational system altogether. The meagre legislative history of section 1009.5 does not offer sufficient evidence to support respondent’s assumption.

Many of the statutes dealing with the “busing” controversy expressly and carefully distinguish between “busing” and pupil assignment. We observe, thus, that section 1009.5 was enacted not only in a context of national concern over busing of pupils to integrate schools, but also in a context of both local and national measures which, in dealing with this matter, distinguish between assignment and transportation of pupils. The wording of section 1009.5 is limited to transportation. From this restriction we could infer that the Legislature did not intend to deal with the entire subject of busing and integration, but only with the less controversial subtopic of involuntary busing.

3. Section 1009.5, if construed to require parental consent to the assignment of a pupil to a school beyond a reasonable walking distance from his home, would be unconstitutional.

The purpose of pupil assignment, obviously, in many cases is to achieve, or at least promote, racial integration in the school district. We shall explain how section 1009.5, if construed to permit parental veto of such pupil assignments, would violate constitutional mandate: first, in that it would impart a private parental decision into the state educational structure and transform that private decision, which could emanate from racial prejudice, into state action; second, in that it would prevent a school board from utilizing an effective principal means of remedying de jure segregation in the schools.

a. The assignment of a pupil to a school beyond reasonable walking distance from his home for the purpose of improving racial balance within the school district does not deny him the equal protection of the laws.

Unequal education leads to unequal job opportunities, disparate income, and handicapped ability to participate in the social, cultural, and political activity of our society. Integration of the public schools, presenting prospects of raising the level of educational achievement of blacks without harming that of whites, may serve to overcome this inequality of educational opportunity, and to make possible that acquaintance and companionship necessary to break down racial stereotypes and prevent racial prejudice. It would be ironic, indeed, if the Fourteenth Amendment, adopted to secure equality of citizenship for the Negro, prevented school boards from providing equality of education for the Negro.

We recognize that racial classifications are constitutionally suspect; in a society free of the perdition of past discrimination, the courts might well reject all attempts at racial classification. We seek, however, to provide for practical remedies for present discrimination, and to eradicate the effects of prior segregation; “at this point, and perhaps for a long time, true nondiscrimination may be attained, paradoxically, only by taking color into consideration.” We conclude that the racial classification involved in the effective integration of public schools, does not deny, but secures, the equal protection of the laws.

b. Section 1009.5, if construed to require parental consent to the assignment of a pupil to a school beyond reasonable walking distance from his home, would be unconstitutional on its face in that it endows parents with a veto power over pupil assignments so that parents can inject racial discrimination into the California educational system.

Section 1009.5, if applied to pupil assignments, would in effect authorize parents, acting as state functionaries, to violate the Fourteenth Amendment. It would empower these private persons to inject the venom of racial discrimination into the veins of government. Such a statute would be unconstitutional on its face.

c. If construed to require parental consent to the assignment of a student to a school beyond reasonable walking distance from his home, section 1009.5 would be unconstitutional if applied to districts manifesting racial segregation, whether de jure or de facto in character.

Since the U.S. Supreme Court has held that under the Constitution school boards in de jure segregated districts are “clearly charged with the affirmative duty to take whatever steps might be necessary” to eliminate segregation “root and branch,” a statute which would proscribe. While such residential patterns were developing, moreover, the school board was collaterally engaged in reaching decisions respecting pupil assignments, attendance zones, transportation, and the location of new facilities, which decisions in turn necessarily influenced the racial composition of the residential areas.23 Often a board decision, although based upon neutral principles, foreseeably will and does lead to increased school segregation. The weighing of the motive and effect of board decisions stretching back for many years to arrive at a net determination of the de facto or de jure character of the present structure presents a highly difficult and possibly insoluble task.

We need not, however, for the purposes of this case, rely on the affirmative duty to desegregate set forth in Jackson. The unconstitutionality of section 1009.5, if applied to pupil assignments in districts of de facto segregation, is deeper, more flagrant. Section 1009.5 does not assume a neutral stance respecting de facto segregation of schools; it moulds a medium of obstruction to the elimination of that evil. It prohibits the use of a method that may be essential to desegregation: pupil assignment without the requirement of parental consent. Yet the state cannot constitutionally countenance obstructionism, for once the state undertakes to preserve de facto school segregation, or to hamper its removal, such state involvement transforms the setting into one of de jure segregation.

Pupil assignment to schools sufficiently distant to require bus transportation will often be the only effective device to eliminate de facto segregation.28 The statute promulgates an absolute and irreversible prohibition of such assignments in the absence of parental approval. The statute erects this barrier without regard to the inequalities of the segregated schools, the educational advantages of integration, the ineffectiveness of alternative remedies, the cost of the program, or the desires of the majority of the students, parents, or the community. Hence, the state can hardly assert that its position is one of neutrality. By means of the statute, the state itself lends its awesome power to preserve the very segregation which the Constitution, as interpreted by the United States Supreme Court, has condemned.

 

Patrick O. Gudridge, “Random Heterogeneous Materials?”

Patrick O. Gudridge, “Random Heterogeneous Materials? The Robert Williams Book, News from Florida, the Stuff of State Constitutional Law Reconceived,” 41 Rutgers L.J. 931 (2010)

Consider the California constitutional amendment at issue in Crawford v. Board of Education: “Nothing contained herein or elsewhere in this Constitution imposes upon the State of California or any public entity, board, or official any obligations or responsibilities which exceed those imposed by the Equal Protection Clause of the [Fourteenth] Amendment to the United States Constitution with respect to the use of public school assignment or pupil transportation. In enforcing this subdivision or any other provision of this Constitution, no court of this state may impose upon the State of California or any public entity, board, or official any obligation or responsibility with respect to the use of public school assignment or pupil transportation, (1) except to remedy a specific violation by such party that would also constitute a violation of the Equal Protection Clause of the [Fourteenth] Amendment to the United States Constitution, and (2) unless a federal court would be permitted under federal decisional law to impose that obligation or responsibility upon such party to remedy the specific violation of the Equal Protection Clause of the [Fourteenth] Amendment of the United States Constitution. “

The United States Supreme Court, addressing a federal challenge to the amendment, treated the case as confounding: “It would be paradoxical to conclude that by adopting the Equal Protection Clause of the Fourteenth Amendment, the voters of the State thereby had violated it.”

Viewed as state constitutional law, however, as a lockstep mechanism of the sort that Robert Williams catalogues, the California provision becomes not only analyzable, but importantly more provocative than the federal Supreme Court apparently understood it to be. The amendment is not simply a cross-reference or citation to the Fourteenth Amendment. It is also designedly a response to and revision of prior California constitutional law. In this instance, the constitutional change is not only (maybe not even primarily) substantive: it is also institutional or structural. The keys are the instructions directly addressed to “court[s] of this state,” even more so the repeated references to “any public entity, board, or official,” and to “any obligation or responsibility.”In 1976 in the course of the Crawford litigation itself, the California Supreme Court, expanding on its Jackson decision over a decade earlier, declared that “school boards in this state bear a constitutional obligation to attempt to alleviate school segregation, regardless of its cause.” The Crawford opinion characterized this duty broadly, reflecting its skepticism regarding the usefulness of the distinction between de jure and de facto school segregation prominent in federal law. But the California Crawford decision departed from federal practice in a second important way. Responsibility was primarily administrative—state courts were to defer to school boards: “[S]o long as a local school board initiates and implements reasonably feasible steps to alleviate school segregation in its district, and so long as such steps produce meaningful progress we do not believe the judiciary should intervene….”

The constitutional amendment drafted in response to the state Crawford opinion, substituting “federal court” understanding of Fourteenth Amendment equal protection requirements, not only transplanted substantive federal law— notably, the de jure/de facto distinction called into question by the California Supreme Court—it also executed an institutional transformation, shifting primary jurisdiction from school boards to courts. To be sure, the amendment directly addresses state courts, instructing them to mimic federal courts. But because the California Supreme Court had previously put in place a version of administrative law, a regime acknowledging substantial discretion on the part of school boards, the new constitutional command requiring conformity to federal judicial practice, a regime of close judicial supervision itself closely regulated, was institutionally transformative. School boards were no longer to act as though independent, as possessed of respected discretion. They were instead to take cues from courts with regard to both impetus (“specific violation”) and remedy, a mimicry all the more artificial and thus confining because the model courts would ultimately be federal rather than state.

The inclusion of explicitly federal law inside state law worked to limit debate as a matter of California politics, leaving officials and constituents alike in the role of passive spectators, watching and waiting for the outcomes of federal judicial contests. The federal transplant’s initial invocation of the Fourteenth Amendment Equal Protection Clause might be taken to be a Reconstruction-like pledge of allegiance. The subsequent passages—plainly drafted to be functionally central—nonetheless mark institutional arrangements as primary, decisively rearranging the relationship of California judicial and administrative regimes by training the California courts to federal judicial practice. It is not at all easy, as a result, to read the wholesale incorporation of federal judicial assessment of the equal protection implications of “school assignment and pupil transportation”—remedial procedures included—as addressing in any clear way Chief Justice Chase’s concern that popular sovereignty might be at the same time fundamental constitutionally and fundamentally divisive.

The institutional politics that the language of the Crawford amendment reveals—read against the background of the California Supreme Court’s work— suggests, rather, that treating the amendment as an expression of equal protection fealty is too simple. The question of why federal law should be put to work within state law in this unusual way in this particular setting may be readily regarded as more troubling than the United States Supreme Court treated it in 1982. Crawford, indeed, precisely raises Justice Bradley’s worry about the conjunction of the legally “unusual” and constitutionally suspect “hostility – or, to put the point in more up to date terms, Crawford may look to us as a lot like Romer before Romer.

 

School finance

Cal. Constitution Art. I sec. 7 Art. IV sec. 16; Art IX secs. 1, 5, 6

CALIFORNIA CONSTITUTION

ARTICLE 1 DECLARATION OF RIGHTS

SEC. 7. (a) A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws; [Remainder of section, which deals with busing, omitted. Ed.

ARTICLE 4 LEGISLATIVE

SEC. 16. (a) All laws of a general nature have uniform operation. (b) A local or special statute is invalid in any case if a general statute can be made applicable.

ARTICLE 9 EDUCATION

SECTION 1. A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement.

ARTICLE 9 EDUCATION

SEC. 5. The Legislature shall provide for a system of common schools by which a free school shall be kept up and supported in each district at least six months in every year, after the first year in which a school has been established.

ARTICLE 9 EDUCATION

SEC. 6. Each person, other than a substitute employee, employed by a school district as a teacher or in any other position requiring certification qualifications shall be paid a salary which shall be at the rate of an annual salary of not less than twenty-four hundred dollars ($2,400) for a person serving full time, as defined by law.

The Public School System shall include all kindergarten schools, elementary schools, secondary schools, technical schools, and state colleges, established in accordance with law and, in addition, the school districts and the other agencies authorized to maintain them

No school or college or any other part of the Public School System shall be, directly or indirectly, transferred from the Public School System or placed under the jurisdiction of any authority other than one included within the Public School System.

The Legislature shall add to the State School Fund such other means from the revenues of the State as shall provide in said fund for apportionment in each fiscal year, an amount not less than one hundred eighty dollars ($180) per pupil in average daily attendance in the kindergarten schools, elementary schools, secondary schools, and technical schools in the Public School System during the next preceding fiscal year.

The entire State School Fund shall be apportioned in each fiscal year in such manner as the Legislature may provide, through the school districts and other agencies maintaining such schools, for the support of, and aid to, kindergarten schools, elementary schools, secondary schools, and technical schools except that there shall be apportioned to each school district in each fiscal year not less than one hundred twenty dollars ($120) per pupil in average daily attendance in the district during the next preceding fiscal year and except that the amount apportioned to each school district in each fiscal year shall be not less than twenty-four hundred dollars ($2,400).

Solely with respect to any retirement system provided for in the charter of any county or city and county pursuant to the provisions of which the contributions of, and benefits to, certificated employees of a school district who are members of such system are based upon the proportion of the salaries of such certificated employees contributed by said county or city and county, all amounts apportioned to said county or city and county, or to school districts therein, pursuant to the provisions of this section shall be considered as though derived from county or city and county school taxes for the support of county and city and county government and not money provided by the State within the meaning of this section.

 

Scott Bauries, “State Constitutional Design and Educational Reform”

 

John Dayton & Anne Dupre, “School Funding Litigation: Who’s Winning the War?”

John Dayton and Anne Dupre, “School Funding Litigation: Who’s Winning The War?” 57 Vand. L. Rev. 2351 (2004)

I. Introduction

Much is being made this year in education law circles and elsewhere about the fiftieth anniversary of Brown v. Board of Education.1 The Brown decision has certainly left an indelible mark on schools and other institutions in the United States. But last year the thirtieth anniversary of another major Supreme Court opinion passed largely without comment, despite the fact that it may be the most significant decision regarding public schools since Brown. In 1973, the U.S. Supreme Court, in San Antonio Independent School District v. Rodriguez, concluded that education was not a fundamental right and that disparities in school funding among school districts do not violate the federal constitution.2 The Court’s decision in Rodriguez effectively closed the door on plaintiffs who wished to use the federal Constitution and the federal courts as a vehicle for achieving greater equity in school funding. Yet Justice Marshall, in his dissenting opinion in Rodriguez, noted that “nothing in the Court’s decision today should inhibit further review of state educational funding schemes under state constitutional provisions.”3

Battles over school funding have been waged on many fronts nationwide including efforts to influence public opinion4 and attempts to pass federal5 and state6 legislation. When these efforts fail to provide adequate remedies, funding equity advocates turn to litigation. Following Justice Marshall’s cue, plaintiffs looked to state courts and state constitutions for school funding remedies.

The litigation that followed the Supreme Court of California’s landmark school funding equity decision in Serrano v. Priest7 has touched every state to some degree, with most states experiencing full scale legal challenges to their systems of funding public schools. To date, the highest courts in thirty-six states have issued opinions on the merits of funding litigation suits, with nineteen courts upholding state funding systems and seventeen declaring the systems unconstitutional.8 Some states have experienced protracted serial litigation that has extended for decades.9 Litigation has been filed and is still pending in many more states.10

At first blush it would appear that the attorneys seeking social change through greater equity in school funding are litigating similar issues in each state. Yet judges have approached these matters from different directions with results that vary significantly from state to state and from case to case. Plaintiffs have unveiled a number of legal theories based on a state constitution’s equal protection clause or education clause. As the litigation has evolved over time, issues of equity in funding have given way to increased attention to funding adequacy and, more recently, accountability.

State constitutions in all fifty states recognize a state-level responsibility for funding public schools.13 Nevertheless, local taxpayers, especially in wealthier school districts, grew accustomed to exercising proprietary control over their locally generated public school funds. Although state constitutions assigned the responsibility for funding public schools to the state, most states’ legislation delegated a large portion of this responsibility to local governments, who then used property and sales taxes to supplement any funding they received from the state. This delegation is at the root of the disparity, as local resources for school funding vary widely from district to district. Property-wealthy districts can raise large amounts of money, while property-poor districts may fail to generate adequate funding for their schools even when levying the maximum legal tax rate.14 This disparity in taxable wealth can create a dual inequity in which relatively wealthy school districts enjoy both generous funding for their schools and lower tax rates, while poorer school districts lack adequate funding despite their relatively high property tax rates.

The use of local sales taxes to supplement local school funding only aggravates these inequities. The most active areas of commerce tend to be in the more property-wealthy suburban school districts. Not only does this leave many poorer rural and inner-city urban residents without adequate funding for their schools, but also because there are fewer places to shop for needed goods in their home districts, such residents are forced to supplement the funding of wealthier neighboring school districts through sales taxes because there are few places to shop for needed goods in their home districts.15

There is little doubt that the modern revolution in school funding equity was sparked by Brown. “The language of the Brown case sounded broad enough to apply to unequal expenditures on children’s education even when racial discrimination was not involved, [and] [t]he constitutional theory that evolved in the Supreme Court civil rights decisions that followed Brown also seemed to apply to the school finance situation.” As a result, civil rights advocates began to press for judicial mandates for school funding equity, focusing on the critical issue left unaddressed in Brown: inequities in public school funding.

 

C. Equal Protection Clause Litigation: The Beginning of the Modern Era in Funding Litigation

In 1971, the Supreme Court of California issued its decision in the landmark case Serrano v. Priest.24 Serrano was the first successful challenge to a state system of public school finance. In addition, Serrano was the first case to establish a judicially manageable standard for courts to use when addressing inequities in school funding.25 The “Serrano principle”26 required that the quality of a child’s education must not be a function of the wealth of the local community. Instead, public school funding must be a function of the wealth of the state as a whole.27 Serrano framed the issues that would become prominent in subsequent school funding cases based on equal protection claims: (1) whether education is a fundamental right; (2) whether the court would apply strict scrutiny; and (3) whether the state’s goal of promoting local control constituted a sufficient justification for the challenged funding system under the court’s standard of review.

Noting the importance of education, as recognized in Brown, the Serrano court held that education was a fundamental right in California.32 The court applied strict scrutiny to the California system of public school funding and determined that California’s funding system discriminated against the poor in violation of the federal Constitution’s equal protection clause. Weighing the importance of education in comparison with both the right to vote and the rights of defendants in criminal cases (two fundamental interests that the U.S. Supreme Court had already protected against discrimination based upon wealth),33 the court concluded that “the distinctive and priceless function of education . . . compelled, . . . treating it as a ‘fundamental interest.”’34

D. School Funding Equity Litigation Reaches the U.S. Supreme Court

After Serrano, several other state high courts struck down school finance laws on similar grounds.38 Considerable attention was focused on these cases, and many commentators predicted “an unprecedented upheaval in public education”39 similar to the events following Brown.40

In 1973, the U.S. Supreme Court was presented with the opportunity to establish a national mandate for school funding equity when it decided San Antonio Independent School District v. Rodriguez.41 Instead of using the Rodriguez case to promote school funding equity, the Court, in a 5-4 decision, delivered a significant defeat to advocates of school funding reform. The Court held that education was not a fundamental right protected under the U.S. Constitution42 and that the Texas system of school finance did not disadvantage any suspect class.43

Justice Powell’s majority opinion refused to hold that education was a fundamental right, observing that “it is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws.”56 The Court criticized the Serrano court’s method for determining whether education is a fundamental right (weighing the importance of education in comparison to other fundamental rights recognized by the Court), noting that instead “the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution.”57 Finding no explicit or implicit guarantee regarding education, the Court merely needed to determine if the Texas system had some rational relationship to any legitimate state interest. The Court determined that the interest in promoting local control of public schools was sufficient to meet this lower standard of review.58 In conclusion, the majority recited a litany of concerns that virtually every opinion upholding an existing school funding system has echoed: (1) criticism of the plaintiffs’ statistical data and conclusions;59 (2) fear of engaging in judicial activism;60 (3) fear of opening the floodgates of litigation in other areas of social services;61 (4) concerns related to judicial competence in an area where courts generally have limited expertise;62 (5) the importance of judicial deference to the legislature in this area;63 and (6) the need for the plaintiffs to address their grievances to the legislature instead of the courts.64

III. State Court Siege: Landmark Cases

Once the U.S. Supreme Court determined that the federal Constitution would not aid the equity plaintiffs, the battle shifted to the state courts and the state constitutions. The litigation since Serrano and Rodriguez has resulted in the reallocation of billions of tax dollars to poorer school districts and has transformed the public schools in some states to a degree second only to the transformation that followed Brown. Although the case law in this area is extensive, the decisions discussed below signify important themes that developed as school finance litigation evolved.

A. Attack on a New Front

In 1972, shortly after the Supreme Court of California’s decision in Serrano, a New Jersey trial court, in Robinson v. Cahill, held that the state’s system of school funding violated equal protection guarantees of both the U.S. Constitution and the New Jersey Constitution, as well as the New Jersey Constitution’s education article.69 The state appealed to the Supreme Court of New Jersey. The Supreme Court of New Jersey waited to release its decision until after the U.S. Supreme Court issued its opinion in Rodriguez, and in a unanimous opinion, the New Jersey court set off in a new direction.70 The court agreed that the New Jersey system of school funding was unconstitutional, but its holding was based on the mandate of the state’s education article, rather than either state or federal equal protection provisions.71

D. Lowered Scrutiny and Lowered Hopes

Shortly after the Court’s decision in Plyler [v. Doe, 457 U.S. 202 (1982)], New York’s highest court rejected a trial court’s ruling that the state’s public school funding system was unconstitutional.89 In Board of Education v. Nyquist, the court held that New York’s system of funding “does not violate the equal protection clause of either the Federal or State Constitution nor is it unconstitutional under the education article of our State Constitution. Although agreeing with the plaintiffs’ arguments concerning funding disparities, the court ruled that the lower court had improperly applied the Plyler intermediate scrutiny standard to the plaintiff’s equal protection claim.94 Instead, the court applied the rational basis standard and determined that the state’s interest in promoting local control was an interest sufficient to satisfy that test.95

E. Closing the Crack in the Federal Door

The climate in federal courts also became increasingly inhospitable to funding equity plaintiffs. In Kadrmas v. Dickinson Public Schools,100 the U.S. Supreme Court ruled that denying school bus transportation to an indigent student for failure to pay school bus fees did not violate the child’s equal protection rights.101 Affirming once again that education is not a fundamental right subject to strict scrutiny,102 the court ruled that the North Dakota statute authorizing school bus user fees for unreorganized school districts satisfied the rational basis test.103

G. Funding for Urban Schools

School funding cases commonly include claims by both rural and urban area plaintiffs contesting the availability of superior educational resources in the more affluent suburban areas. The plaintiffs in Abbott v. Burke tried a different tactic by focusing only on poorer urban school districts.129 The tactic succeeded, as the Supreme Court of New Jersey declared the state’s system of public school funding unconstitutional as applied to poorer urban districts.130 The court held that the New Jersey school funding system must be amended to assure funding of education in poorer urban districts at substantially the same level as that of property rich districts. Echoing Serrano, the court determined that funding cannot depend on local wealth and stated that the level of funding must be adequate to provide for the special needs of urban districts so as to address their special disadvantages.131 “The inadequacy of poorer urban students’ present education measured against their needs is glaring. Whatever the cause, these school districts are failing abysmally, dramatically, and tragically.”132 The court found that poorer urban students with the greatest needs “are getting the least education . . . . The implications of that fact on their future and on the state’s future is the central theme of plaintiffs’ case.”133

IV. The Struggle Continues

Funding disputes have arisen in all fifty states, ranging from grassroots reform efforts to intense litigation. The highest courts of most states have issued opinions on at least one school funding challenge, and many states have experienced decades of serial litigation in protracted efforts to obtain satisfactory remedies for funding inequities. Because the constitutional provisions, statutes, regulations, legal precedents, and even the relevant facts vary significantly from state to state, school funding litigation has been both extensive and diverse. Despite these contextual differences, some common elements have emerged.

Constitutional guarantees of public education are guarantees of educational opportunity and not guarantees of equal dollar amounts per pupil;155 therefore, plaintiffs must link expenditures to educational opportunity.156 Since Serrano v. Priest,157 no plaintiff has ultimately prevailed without convincing the court of the existence of a positive correlation between expenditures and educational opportunity.158 The obvious explanation for this is that if expenditures do not affect the quality of educational opportunity, any increase in funding sought by plaintiffs would not rationally promote the constitutional interest in educational opportunity that the court is charged with protecting. Because of its crucial importance to the case and the unsettled academic debate regarding this issue, considerable judicial attention has been devoted to examining the alleged correlation between expenditures and educational opportunity

2. Adequacy Standards

Law and finance scholars have documented a trend in school funding cases that has moved from a focus on equity to an increased focus on adequacy in funding litigation.229 Although the U.S. Supreme Court’s decisions in school funding have generally disappointed plaintiffs, a seed that was planted in the opinions has produced some fruit. In 1986, in Papasan v. Allain,230 school officials and children in twenty-three Mississippi school districts claimed that they were being denied the economic benefit of public school land grants and that this violated the federal Constitution’s equal protection clause.231 The trial court granted the defendants’ motion to dismiss based on Rodriguez, and the Fifth Circuit affirmed.232 The Supreme Court vacated the dismissal and remanded the case.233

The Court noted that although the Rodriguez Court had decided that education was not a fundamental right, it had not foreclosed “the possibility that some identifiable quantum of education is a constitutionally protected prerequisite to the meaningful exercise of either [the right to speak or the right to vote].”234 The Court also cited Plyler, stating that while “the Court did not . . . measurably change the approach articulated in Rodriguez . . . it [nevertheless] concluded that the justifications for the discrimination offered by the State were wholly insubstantial in light of the costs involved to these children, the State, and the Nation.”235 Moreover, “Rodriguez did not . . . purport to validate all funding variations that might result from a State’s public school funding decisions. It merely held that the variations that resulted from allowing local control over local property tax funding of the public schools were constitutionally permissible in that case.”236

The Court also pointed out that it had “not yet definitively settled the questions whether a minimally adequate education is a fundamental right and whether a statute alleged to discriminatorily infringe that right should be accorded heightened equal protection review.”237

Although the Papasan plaintiffs did not prevail on their claim, the Papasan Court signaled that obtaining a minimally adequate education mattered for the purposes of the federal Constitution, and subsequently, adequacy litigation in state courts has taken on a life of its own. Indeed, the increased focus on adequacy in providing public education is one of the more significant developments in funding litigation in recent years.239 Unlike Serrano-model equity plaintiffs, who focus on equity in expenditures, adequacy plaintiffs focus more on meeting state standards and whether the state provides an “adequate education.”240

Over three decades after Serrano, inequities in educational opportunity persist, raising concerns about the efficacy of this litigation. As we celebrate the anniversary of Brown this year, the efficacy of that decision, too, is being questioned. Despite the massive changes sparked by the decision, few would argue that the egalitarian dreams of racial desegregation associated with Brown were ever fully realized. Recent studies show that even the gains achieved through Brown and the cases that came after it are rapidly eroding. The Harvard Civil Rights Project has documented an unmistakable demographic trend toward resegregation304 that has gained ground since the U.S. Supreme Court’s 1991 decision in Board of Education v. Dowell.305

The Brown desegregation legacy and the Rodriguez funding legacy are, of course, inextricably linked. In addition to concerns about public school resegregation, commentators continue to note that individuals with low family incomes, African-Americans, and Hispanics are underrepresented both in university enrollment and among graduates of institutions of higher education.306 It appears, not surprisingly, that poorer racial minority children often find themselves in inadequately funded schools, where academic preparation and achievement are neither supported nor vigorously encouraged

VI. Conclusion: The Future Of School Funding Litigation

Despite the many problems associated with school funding litigation, there are many instances in which litigation has been and will likely continue to be a useful tool in the struggle for greater funding equity. Depending on the circumstances, judicial action may be helpful or even necessary to produce greater equity, but it is not sufficient. If the goal is long-term improvement in funding for public schools, and not just victory in litigation, building a political coalition for funding reform is essential to achieving meaningful and lasting reform. Judicial decisions may call attention to school funding problems, but the electorate must be persuaded to accept public school funding changes. Through their votes, the people of the state can promote, prevent, or reverse policy changes.

State courts may be less likely than federal courts to contravene popular opinion in protecting constitutional rights because of the enhanced vulnerability of state judges and constitutions to majoritarian politics, but state courts opinions on funding issues often can play a role in educating the people about the importance of supporting public education that is adequately funded for all students. A judicial decision calling for equity reform may also encourage legislators to initiate funding reforms previously stalled because of lack of interest or political courage.

 Serrano v. Priest (Serrano I) (1971), 5 Cal.3d 584

Serrano v. Priest (Serrano I) (1971), 5 Cal.3d 584, 96 Cal.Rptr. 601

SULLIVAN, J.

We are called upon to determine whether the California public school financing system, with its substantial dependence on local property taxes and resultant wide disparities in school revenue, violates the equal protection clause of the Fourteenth Amendment. We have determined that this funding scheme invidiously discriminates against the poor because it makes the quality of a child’s education a function of the wealth of his parents and neighbors. Recognizing as we must that the right to an education in our public schools is a fundamental interest which cannot be conditioned on wealth, we can discern no compelling state purpose necessitating the present method of financing. We have concluded, therefore, that such a system cannot withstand constitutional challenge and must fall before the equal protection clause.

We begin our task by examining the California public school financing system which is the focal point of the complaint’s allegations. At the threshold we find a fundamental statistic — over 90 percent of our public school funds derive from two basic sources: (a) local district taxes on real property and (b) aid from the State School Fund. By far the major source of school revenue is the local real property tax. Thus the locally raised funds which constitute the largest portion of school revenue are primarily a function of the value of the realty within a particular school district, coupled with the willingness of the district’s residents to tax themselves for education.

We have never interpreted the constitutional provision [Art. IX, §5] to require equal school spending; we have ruled only that the educational system must be uniform in terms of the prescribed course of study and educational progression from grade to grade.

Having disposed of these preliminary matters, we take up the chief contention underlying plaintiffs’ complaint, namely that the California public school financing scheme violates the equal protection clause of the Fourteenth Amendment to the United States Constitution.⁴³

As recent decisions of this court have pointed out, the United States Supreme Court has employed a two-level test for measuring legislative classifications against the equal protection clause. “In the area of economic regulation, the high court has exercised restraint, investing legislation with a presumption of constitutionality and requiring merely that distinctions drawn by a challenged statute bear some rational relationship to a conceivable legitimate state purpose. ”On the other hand, in cases involving “suspect classifications” or touching on “fundamental interests,” the court has adopted an attitude of active and critical analysis, subjecting the classification to strict scrutiny. Under the strict standard applied in such cases, the state bears the burden of establishing not only that it has a compelling interest which justifies the law but that the distinctions drawn by the law are necessary to further its purpose.“

A. Wealth as a Suspect Classification

In recent years, the United States Supreme Court has demonstrated a marked antipathy toward legislative classifications which discriminate on the basis of certain ”suspect“ personal characteristics. One factor which has repeatedly come under the close scrutiny of the high court is wealth. Plaintiffs contend that the school financing system classifies on the basis of wealth. We find this proposition irrefutable.

Defendants, assuming for the sake of argument that the financing system does classify by wealth, nevertheless claim that no constitutional infirmity is involved because the complaint contains no allegation of purposeful or intentional discrimination. Thus, defendants contend, any unequal treatment is only de facto, not de jure. Since the United States Supreme Court has not held de facto school segregation on the basis of race to be unconstitutional, so the argument goes, de facto classifications on the basis of wealth are presumptively valid.

We think that the whole structure of this argument must fall for want of a solid foundation in law and logic. None of the wealth classifications previously invalidated by the United States Supreme Court or this court has been the product of purposeful discrimination. Instead, these prior decisions have involved “unintentional” classifications whose impact simply fell more heavily on the poor.

We turn now to defendants’ related contention that the instant case involves at most de facto discrimination. We disagree. Indeed, we find the case unusual in the extent to which governmental action is the cause of the wealth classifications. The school funding scheme is mandated in every detail by the California Constitution and statutes. Although private residential and commercial patterns may be partly responsible for the distribution of assessed valuation throughout the state, such patterns are shaped and hardened by zoning ordinances and other governmental land-use controls which promote economic exclusivity. Finally, even assuming arguendo that defendants are correct in their contention that the instant discrimination based on wealth is merely de facto, and not de jure,20 such discrimination cannot be justified by analogy to de facto racial segregation. Although the United States Supreme Court has not yet ruled on the constitutionality of de facto racial segregation, this court eight years ago held such segregation invalid, and declared that school boards should take affirmative steps to alleviate racial imbalance, however created [citing Jackson v. Pasadena City School Dist. (1963)]. Consequently, any discrimination based on wealth can hardly be vindicated by reference to de facto racial segregation, which we have already condemned. In sum, we are of the view that the school financing system discriminates on the basis of the wealth of a district and its residents.

B. Education as a Fundamental Interest

But plaintiffs’ equal protection attack on the fiscal system has an additional dimension. They assert that the system not only draws lines on the basis of wealth but that it “touches upon,” indeed has a direct and significant impact upon, a “fundamental interest,” namely education. It is urged that these two grounds, particularly in combination, establish a demonstrable denial of equal protection of the laws. To this phase of the argument we now turn our attention.

Until the present time wealth classifications have been invalidated only in conjunction with a limited number of fundamental interests — rights of defendants in criminal cases and voting rights. Plaintiffs’ contention — that education is a fundamental interest which may not be conditioned on wealth — is not supported by any direct authority. We therefore begin by examining the indispensable role which education plays in the modern industrial state. This role, we believe, has two significant aspects: first, education is a major determinant of an individual’s chances for economic and social success in our competitive society. The fundamental importance of education has been recognized in other contexts by the United States Supreme Court and by this court. These decisions — while not legally controlling on the exact issue before us — are persuasive in their accurate factual description of the significance of learning.

The analogy between education and voting is much more direct: both are crucial to participation in, and the functioning of, a democracy. Voting has been regarded as a fundamental right because it is “preservative of other basic civil and political rights…. The drafters of the California Constitution used this same rationale — indeed, almost identical language — in expressing the importance of education. Article IX, section 1 provides: ”A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement.“ At a minimum, education makes more meaningful the casting of a ballot. More significantly, it is likely to provide the understanding of, and the interest in, public issues which are the spur to involvement in other civic and political activities. We are convinced that the distinctive and priceless function of education in our society warrants, indeed compels, our treating it as a ”fundamental interest.“

C. The Financing System Is Not Necessary to Accomplish a Compelling State Interest

We now reach the final step in the application of the “strict scrutiny” equal protection standard — the determination of whether the California school financing system, as presently structured, is necessary to achieve a compelling state interest.

In summary, so long as the assessed valuation within a district’s boundaries is a major determinant of how much it can spend for its schools, only a district with a large tax base will be truly able to decide how much it really cares about education. The poor district cannot freely choose to tax itself into an excellence which its tax rolls cannot provide. Far from being necessary to promote local fiscal choice, the present financing system actually deprives the less wealthy districts of that option.

We, therefore, arrive at these conclusions. The California public school financing system, as presented to us by plaintiffs’ complaint supplemented by matters judicially noticed, since it deals intimately with education, obviously touches upon a fundamental interest. For the reasons we have explained in detail, this system conditions the full entitlement to such interest on wealth, classifies its recipients on the basis of their collective affluence and makes the quality of a child’s education depend upon the resources of his school district and ultimately upon the pocketbook of his parents. We find that such financing system as presently constituted is not necessary to the attainment of any compelling state interest.

Since it does not withstand the requisite “strict scrutiny,” it denies to the plaintiffs and others similarly situated the equal protection of the laws.32 If the allegations of the complaint are sustained, the financial system must fall and the statutes comprising it must be found unconstitutional.

In sum, we find the allegations of plaintiffs’ complaint legally sufficient and we return the cause to the trial court for further proceedings. We emphasize that our decision is not a final judgment on the merits.

By our holding today we further the cherished idea of American education that in a democratic society free public schools shall make available to all children equally the abundant gifts of learning. This was the credo of Horace Mann, which has been the heritage and the inspiration of this country. “I believe,” he wrote, “in the existence of a great, immortal immutable principle of natural law, or natural ethics, — a principle antecedent to all human institutions, and incapable of being abrogated by any ordinance of man … which proves the absolute right to an education of every human being that comes into the world, and which, of course, proves the correlative duty of every government to see that the means of that education are provided for all….”

 

San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1 (1973)

Mr. Justice POWELL delivered the opinion of the Court.

This suit attacking the Texas system of financing public education was initiated by Mexican-American parents whose children attend the elementary and secondary schools in the Edgewood Independent School District, an urban school district in San Antonio, Texas.1 They brought a class action on behalf of schoolchildren throughout the State who are members of minority groups or who are poor and reside in school districts having a low property tax base. In December 19714 the panel rendered its judgment in a per curiam opinion holding the Texas school finance system unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.5 For the reasons stated in this opinion, we reverse the decision of the District Court.

We must decide, first, whether the Texas system of financing public education operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution, thereby requiring strict judicial scrutiny. If so, the judgment of the District Court should be affirmed. If not, the Texas scheme must still be examined to determine whether it rationally furthers some legitimate, articulated state purpose and therefore does not constitute an invidious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment.

We are unable to agree that this case, which in significant aspects is sui generis, may be so neatly fitted into the conventional mosaic of constitutional analysis under the Equal Protection Clause. Indeed, for the several reasons that follow, we find neither the suspect-classification nor the fundamental-interest analysis persuasive. The wealth discrimination discovered by the District Court in this case, and by several other courts that have recently struck down school-financing laws in other States,48 is quite unlike any of the forms of wealth discrimination heretofore reviewed by this Court. The individuals, or groups of individuals, who constituted the class discriminated against in our prior cases shared two distinguishing characteristics: because of their impecunity they were completely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit. Even a cursory examination, however, demonstrates that neither of the two distinguishing characteristics of wealth classifications can be found here.

First, in support of their charge that the system discriminates against the ‘poor,’ appellees have made no effort to demonstrate that it operates to the peculiar disadvantage of any class fairly definable as indigent, or as composed of persons whose incomes are beneath any designated poverty level. Indeed, there is reason to believe that the poorest families are not necessarily clustered in the poorest property districts. Second, . . . unlike each of the foregoing cases, lack of personal resources has not occasioned an absolute deprivation of the desired benefit. The argument here is not that the children in districts having relatively low assessable property values are receiving no public education; rather, it is that they are receiving a poorer quality education than that available to children in districts having more assessable wealth. Apart from the unsettled and disputed question whether the quality of education may be determined by the amount of money expended for it,56 a sufficient answer to appellees’ argument is that, at least where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages.57

A recent and exhaustive study of school districts in Connecticut concluded that ‘it is clearly incorrect . . . to contend that the ‘poor’ live in ‘poor’ districts . . .. Thus, the major factual assumption of Serrano — that the educational financing system discriminates against the ‘poor —-is simply false in Connecticut.’53 Defining ‘poor’ families as those below the Bureau of the Census ‘poverty level,’54 the Connecticut study found, not surprisingly, that the poor were clustered around commercial and industrial areas — those same areas that provide the most attractive sources of property tax income for school districts. Nor indeed, in view of the infinite variables affecting the educational process, can any system assure equal quality of education except in the most relative sense.

For these two reasons — the absence of any evidence that the financing system discriminates against any definable category of ‘poor’ people or that it results in the absolute deprivation of education — the disadvantaged class is not susceptible of identification in traditional terms.

This brings us, then, to the third way in which the classification scheme might be defined-district wealth discrimination. Since the only correlation indicated by the evidence is between district property wealth and expenditures, it may be argued that discrimination might be found without regard to the individual income characteristics of district residents. However described, it is clear that appellees’ suit asks this Court to extend its most exacting scrutiny to review a system that allegedly discriminates against a large, diverse, and amorphous class, unified only by the common factor of residence in districts that happen to have less taxable wealth than other districts.66 The system of alleged discrimination and the class it defines have none of the traditional indicia of suspectness: the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.

We thus conclude that the Texas system does not operate to the peculiar disadvantage of any suspect class. But in recognition of the fact that this Court has never heretofore held that wealth discrimination alone provides an adequate basis for invoking strict scrutiny, appellees have not relied solely on this contention.67 They also assert that the State’s system impermissibly interferes with the exercise of a ‘fundamental’ right and that accordingly the prior decisions of this Court require the application of the strict standard of judicial review. It is this question — whether education is a fundamental right, in the sense that it is among the rights and liberties protected by the Constitution — which has so consumed the attention of courts and commentators in recent years.

In Brown v. Board of Education (1954), a unanimous Court recognized that ‘education is perhaps the most important function of state and local governments.’ What was said there in the context of racial discrimination has lost none of its vitality with the passage of time. Nothing this Court holds today in any way detracts from our historic dedication to public education. We are in complete agreement with the conclusion of the three-judge panel below that ‘the grave significance of education both to the individual and to our society’ cannot be doubted.69 But the importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause. It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws. Thus, the key to discovering whether education is ‘fundamental’ is not to be found in comparisons of the relative societal significance of education as opposed to subsistence or housing. Nor is it to be found by weighing whether education is as important as the right to travel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution.

Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected. Even if it were conceded that some identifiable quantum of education is a constitutionally protected prerequisite to the meaningful exercise of either right, we have no indication that the present levels of educational expenditures in Texas provide an education that falls short. Whatever merit appellees’ argument might have if a State’s financing system occasioned an absolute denial of educational opportunities to any of its children, that argument provides no basis for finding an interference with fundamental rights where only relative differences in spending levels are involved and where — as is true in the present case — no charge fairly could be made that the system fails to provide each child with an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.

Furthermore, the logical limitations on appellees’ nexus theory are difficult to perceive. How, for instance, is education to be distinguished from the significant personal interests in the basics of decent food and shelter?

We have carefully considered each of the arguments supportive of the District Court’s finding that education is a fundamental right or liberty and have found those arguments unpersuasive. Every step leading to the establishment of the system Texas utilizes today — including the decisions permitting localities to tax and expend locally, and creating and continuously expanding the state aid — was implemented in an effort to extend public education and to improve its quality.82 Of course, every reform that benefits some more than others may be criticized for what it fails to accomplish. But we think it plain that, in substance, the thrust of the Texas system is affirmative and reformatory and, therefore, should be scrutinized under judicial principles sensitive to the nature of the State’s efforts and to the rights reserved to the States under the Constitution.83

It should be clear, for the reasons stated above and in accord with the prior decisions of this Court, that this is not a case in which the challenged state action must be subjected to the searching judicial scrutiny reserved for laws that create suspect classifications or impinge upon constitutionally protected rights.

We need not rest our decision, however, solely on the inappropriateness of the strict-scrutiny test. A century of Supreme Court adjudication under the Equal Protection Clause affirmatively supports the application of the traditional standard of review, which requires only that the State’s system be shown to bear some rational relationship to legitimate state purposes. This case represents far more than a challenge to the manner in which Texas provides for the education of its children. We have here nothing less than a direct attack on the way in which Texas has chosen to raise and disburse state and local tax revenues. We are asked to condemn the State’s judgment in conferring on political subdivisions the power to tax local property to supply revenues for local interests. In so doing, appellees would have the Court intrude in an area in which it has traditionally deferred to state legislatures.84 This Court has often admonished against such interferences with the State’s fiscal policies under the Equal Protection Clause. Thus, we stand on familiar grounds when we continue to acknowledge that the Justices of this Court lack both the expertise and the familiarity with local problems so necessary to the making of wise decisions with respect to the raising and disposition of public revenues.

It must be remembered, also, that every claim arising under the Equal Protection Clause has implications for the relationship between national and state power under our federal system. Questions of federalism are always inherent in the process of determining whether a State’s laws are to be accorded the traditional presumption of constitutionality, or are to be subjected instead to rigorous judicial scrutiny. While ‘the maintenance of the principles of federalism is a foremost consideration in interpreting any of the pertinent constitutional provisions under which this Court examines state action,’88 it would be difficult to imagine a case having a greater potential impact on our federal system than the one now before us, in which we are urged to abrogate systems of financing public education presently in existence in virtually every State.

The foregoing considerations buttress our conclusion that Texas’ system of public school finance is an inappropriate candidate for strict judicial scrutiny. These same considerations are relevant to the determination whether that system, with its conceded imperfections, nevertheless bears some rational relationship to a legitimate state purpose. It is to this question that we next turn our attention.

In light of the considerable attention that has focused on the District Court opinion in this case and on its California predecessor, Serrano v. Priest (1971), a cautionary postscript seems appropriate. It cannot be questioned that the constitutional judgment reached by the District Court and approved by our dissenting Brothers today would occasion in Texas and elsewhere an unprecedented upheaval in public education.

The complexity of these problems is demonstrated by the lack of consensus with respect to whether it may be said with any assurance that the poor, the racial minorities, or the children in over-burdened core-city school districts would be benefited by abrogation of traditional modes of financing education. Unless there is to be a substantial increase in state expenditures on education across the board — an event the likelihood of which is open to considerable question111 — these groups stand to realize gains in terms of increased per-pupil expenditures only if they reside in districts that presently spend at relatively low levels, i.e., in those districts that would benefit from the redistribution of existing resources. Yet, recent studies have indicated that the poorest families are not invariably clustered in the most impecunious school districts.112 Nor does it now appear that there is any more than a random chance that racial minorities are concentrated in property-poor districts.113 Additionally, several research projects have concluded that any financing alternative designed to achieve a greater equality of expenditures is likely to lead to higher taxation and lower educational expenditures in the major urban centers,114 a result that would exacerbate rather than ameliorate existing conditions in those areas.

These practical considerations, of course, play no role in the adjudication of the constitutional issues presented here. But they serve to highlight the wisdom of the traditional limitations on this Court’s function. The consideration and initiation of fundamental reforms with respect to state taxation and education are matters reserved for the legislative processes of the various States, and we do no violence to the values of federalism and separation of powers by staying our hand. We hardly need add that this Court’s action today is not to be viewed as placing its judicial imprimatur on the status quo. The need is apparent for reform in tax systems which may well have relied too long and too heavily on the local property tax. And certainly innovative thinking as to public education, its methods, and its funding is necessary to assure both a higher level of quality and greater uniformity of opportunity. These matters merit the continued attention of the scholars who already have contributed much by their challenges. But the ultimate solutions must come from the lawmakers and from the democratic pressures of those who elect them.

Reversed.

[White, Douglas, Brennan, and Marshall, JJ. dissented.]

 

Crawford v. Board of Education (Crawford I) (1976), 17 Cal.3d 280

Crawford v. Board of Education (1976), 17 Cal. 3d 280, 551 P.2d 28, 130 Cal. Rptr. 724

Opinion by Tobriner, J., expressing the unanimous view of the court.

Thirteen years ago, in Jackson v. Pasadena City School Dist. (1963) 59 Cal.2d 876 [31 Cal.Rptr. 606, 382 P.2d 878] (hereinafter Jackson) this court, in a unanimous decision authored by then Chief Justice Gibson, explicitly declared that “the segregation of school children into separate schools because of their race, even though the physical facilities and the methods and quality of instruction in the several schools may be equal, deprives the children of the minority group of equal opportunities for education and denies them equal protection and due process of the law.”  We held that as a consequence school boards in this state bear a constitutional obligation to undertake reasonably feasible steps to alleviate such racial segregation in the public schools, regardless of the cause of such segregation.

In the instant case, the trial court found that although the schools of the Los Angeles Unified School District were severely segregated and were becoming increasingly segregated, the defendant school board had failed to take any steps to attempt to alleviate the segregated condition, and indeed, had taken affirmative acts which contributed to and perpetuated the racial and ethnic segregation in its school system. On the basis of these findings, the court ordered the defendant school board to prepare and implement a reasonably feasible plan for the desegregation of its schools.

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.”

While we affirm the trial court’s order requiring the defendant board to prepare and implement a reasonably feasible desegregation plan, we shall point out that one portion of the judgment, defining “segregated” schools in terms of specific racial and ethnic percentages, is in error and must be modified on remand. Moreover, although no specific desegregation plan is presently before this court, we have concluded that in light of the crucial importance of the remedial aspects of the school desegregation problem and the considerable confusion that prevails as to the nature of a school district’s constitutional obligations, we should attempt to clarify the scope of the school board’s constitutional duty in this area. As we explain, the Constitution does not require a school board to achieve a particular or identical “racial mix” or “racial balance” in each school; rather, the constitutional evil inheres in the existence of segregated schools. It is the elimination of such segregation and the harms inflicted by such segregation that is the ultimate constitutional objective.

In light of the realities of the remedial problem, we believe that once a court finds that a school board has implemented a program which promises to achieve meaningful progress toward eliminating the segregation in the district, the court should defer to the school board’s program and should decline to intervene in the school desegregation process so long as such meaningful progress does in fact follow. A court should thus stay its hand even if it believes that alternative techniques might lead to more rapid desegregation of the schools. We have learned that the fastest path to desegregation does not always achieve the consummation of the constitutional objective; it may instead result in resegregation.

As noted above, the defendant school board generally concedes that its district’s schools are, in fact, substantially segregated, and that it has not prepared or implemented any general plan to attempt to alleviate such segregation. The board contends, however, that the segregation in its schools is de facto in origin, and therefore, that it bears no constitutional obligation to take any steps to attempt to alleviate the concededly racially and ethnically segregated status of its schools. [However,] as declared in Jackson v. Pasadena City School Dist., California school boards bear a constitutional obligation to take reasonably feasible steps to alleviate school segregation, whether such segregation is de jure or de facto in nature.

As we read recent federal cases, the issue as to whether school districts have an obligation under the federal Constitution to avoid the perpetuation of purely de facto school segregation remains an open question. In focusing primarily on these federal decisions, however, defendant ignores a significant line of California decisions, decisions which authoritatively establish that in this state school boards do bear a constitutional obligation to take reasonable steps to alleviate segregation in the public schools, whether the segregation be de facto or de jure in origin.

Jackson v. Pasadena City School Dist. is, of course, the seminal decision in this line of cases. Our decision in Jackson declared: “Although it is alleged that the board was guilty of intentional discriminatory action, it should be pointed out that even in the absence of gerrymandering or other affirmative discriminatory conduct by a school board, a student under some circumstances would be entitled to relief where, by reason of residential segregation, substantial racial imbalance exists in his school. 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 consequences of segregation require that school boards take steps, insofar as reasonably feasible, to alleviate racial imbalance in schools regardless of its cause.”

To begin with, wherever the origins or causes of school segregation may lie, we do not doubt that, under traditional constitutional doctrine, local school boards are so “significantly involved” in the control, maintenance and ongoing supervision of their school systems as to render any existing school segregation “state action” under our state constitutional equal protection clause. In California, school boards possess plenary authority to determine school assignment policies; to establish and reestablish geographic attendance zones; to determine where new schools will be built, what their size will be and what “neighborhood” they will serve; to create or eliminate transfer options between schools; and to establish specialized programs that may attract articular students to particular schools.  Given the school board’s pervasive control over and continuing responsibility for both the daily decisions and the long range plans which in fact determine the racial and ethnic attendance pattern of its district’s schools, past authorities demonstrate that the state cannot escape constitutional responsibility for the segregated condition of the public schools.

In light of the detrimental consequences that segregated schools have traditionally imposed on minority children, and a school board’s plenary authority over the governance of its schools, a school board in this state is not constitutionally free to adopt any facially neutral policy it chooses, oblivious to such policy’s actual differential impact on the minority children in its schools. As recent California decisions concerning the constitutional obligations of state officials have held, public  officials in some circumstances bear an affirmative obligation to design programs or frame policies so as to avoid discriminatory results.

Finally, the importance of adopting and implementing policies which avoid “racially specific” harm to minority groups takes on special constitutional significance with respect to the field of education, because, at least in this state, education has been explicitly recognized for equal protection purposes as a “fundamental interest.”

Thus, as we have seen, for more than a decade this court has adhered to the position that school boards in this state bear a constitutional obligation to attempt to alleviate school segregation, regardless of its cause. Although defendant urges our court, at this late date, to abandon this constitutional interpretation, we remain convinced of the soundness of our prior decisions, both as to the principle itself and as to the practical consequences that would follow if our court were now to embrace defendant’s suggested de facto-de jure distinction

Moreover, although a school board’s establishment of and adherence to a “neighborhood school policy” may on its face represent the implementation of a “neutral,” constitutionally permissible classification scheme, the effect of such state action has invariably been to inflict a “racially specific” harm on minority students when such a policy actually results in segregated education.

Jackson’s conclusion that school boards in this state must take steps to alleviate school segregation, however caused, is not only  required by application of state equal protection principles, but, in addition, by consideration of the deleterious practical consequences that would inevitably flow from our adoption of the de jure-de facto distinction. Finally, and most fundamentally, even if courts could satisfactorily distinguish de facto from de jure segregation and even if the effect of such judicial effort would not provide a haven for intractable school boards, the judiciary must still face the ultimate reality that in California in the 1970’s the de facto-de jure distinction retains little, if any, significance for the children whose constitutional rights are at issue here. Although the educational experts may disagree on many aspects of the desegregation controversy, there is virtually no dispute that the practical effect of segregated schooling on minority children does not depend upon whether a court finds the segregation de jure or de facto in nature; the isolating and debilitating effects do not vary with the source of the segregation.

In California, all public school districts bear an obligation under the state Constitution to undertake reasonably feasible steps to alleviate school segregation, regardless of the cause of such segregation. In determining whether a particular school is “segregated” for constitutional purposes, we do not believe set racial or ethnic percentages can be established, either in absolute terms or in terms of the racial composition of a particular district’s student population. Under the California Constitution, as under the federal Constitution, “what is or is not a segregated school will necessarily depend on the facts of each particular case. In addition to the racial and ethnic composition of a school’s student body, other factors, such as the racial and ethnic composition of faculty and [staff, and the community and administration attitudes toward the school, must be taken into consideration.”

So long as a local school board initiates and implements reasonably feasible steps to alleviate school segregation in its district, and so long as such steps produce meaningful progress in the alleviation of such segregation, and its harmful consequences, we do not believe the judiciary should intervene in the desegregation process. Under such circumstances, a court thus should not step in even if it believes that alternative desegregation techniques may produce more rapid desegregation in the school district.

If, however, a court finds that a local school board has not implemented such a course of action, the court is left with no alternative but to intervene to protect the constitutional rights of minority children. Faced with a recalcitrant or intractable school board, a trial court may exercise broad equitable powers in formulating and supervising a plan which the court finds will insure meaningful progress to alleviate the harmful consequences of school segregation in the district. When a local school board defaults in its constitutional task, a court may no longer be justified in relying upon the board to implement programs which hold a reasonable promise for securing the rights of minority children.

Although we have not specifically addressed the volatile issue of “busing” in our discussion above, we believe that the general principles we have outlined are equally applicable to that matter. While critics have sometimes attempted to obscure the issue, court decisions time and time again have emphasized that “busing” is not a constitutional end in itself but is simply one potential tool which may be utilized to satisfy a school district’s constitutional obligation in this field. As with the numerous desegregation techniques adverted to above, in some circumstances busing will be an appropriate and useful element in a desegregation plan, while in other instances its “costs,” both in financial and educational terms, will render its use inadvisable.  Although a court cannot properly issue a “busing” order so long as a school district continues to meet its constitutional obligations, once a school board defaults in its constitutional task, the court, in devising a remedial order, is not precluded from requiring the busing of children as part of a reasonably feasible desegregation plan.

 

Serrano v. Priest (Serrano II) (1976), 18 Cal.3d 728

Serrano v. Priest (1976), 18 Cal. 3d 728, 557 P.2d 929, 135 Cal. Rptr. 345

Opinion by Sullivan, J.:

The trial court held that the California public school financing system for elementary and secondary schools as it stood following the adoption of [corrective legislation subsequent to Serrano I], while not in violation of the equal protection clause of the Fourteenth Amendment to the federal Constitution, was invalid as in violation of former article I, sections 11 and 21, of the California Constitution (now art. IV, § 16 and art. I, § 7 respectively), our state equal  protection provisions. Indicating the respects in which the system before it was violative of our state constitutional standard, the court set a period of six years from the date of entry of judgment as a reasonable time for bringing the system into constitutional compliance; it further held and ordered that the existing system should continue to operate until such compliance had been achieved. The judgment specifically  provided that it was not to be construed to require the adoption of any particular system of school finance, but only to require that the plan adopted comport with the requirements of state equal protection provisions.

During the progress of trial proceedings below, the United States Supreme Court rendered its decision in San Antonio School District v. Rodriguez. There, addressing itself to equal protection attack on the Texas public school financing system — which like the system here in question is based on the “foundation approach” — the high court held that that system (1) did not result in a suspect classification based upon wealth, and (2) did not affect any fundamental interest, education being less than fundamental for these purposes because it was not explicitly or implicitly guaranteed or protected by the terms of the federal Constitution. Accordingly, the court held, the so-called “strict scrutiny test” for equal protection review of state laws under the Fourteenth Amendment to the United States Constitution was inappropriate. Reinforced in this conclusion by the fact that the case before it involved peculiarly local questions of taxation, fiscal planning, and educational policy — and thus raised serious considerations of federalism and deference to local decision — the high court proceeded to examine the Texas system under the less stringent “rational relationship” test, concluding that such a relationship to the state purpose of local control was shown.

We — along with the trial court and the parties — think it is clear that Rodriguez undercuts our decision in Serrano I to the extent that we held the California public school financing system (if proved to be as alleged) to be invalid as in violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution. However, as we made clear in footnote 11, our decision in Serrano I was based not only on the provisions of the federal Constitution but on the provisions of our own state Constitution as well. Consequently, our analysis of plaintiffs’ federal equal protection contention is also applicable to their claim under these state constitutional provisions.” The first question here facing us is that of the proper interpretation of the foregoing two sentences in light of Rodriguez.

As Serrano I makes clear through its reference to our second Kirchner opinion (and as all parties hereto are agreed), our state equal protection provisions, while “substantially the equivalent of” the guarantees contained in the Fourteenth Amendment to the United States Constitution, are possessed of an independent vitality which, in a given case, may demand an analysis different from that which would obtain if only the federal standard were applicable. We have recently stated in a related context: “ “In the area of fundamental civil liberties — which includes . . . all protections of the California Declaration of Rights — we sit as a court of last resort, subject only to the qualification that our interpretations may not restrict the guarantees accorded the national citizenry under the federal charter. In such constitutional adjudication, our first referent is California law and the full panoply of rights Californians have come to expect as their due. Accordingly, decisions of the United States Supreme Court defining fundamental rights are persuasive authority to be afforded respectful consideration, but are to be followed by California courts only when they provide no less individual protection than is guaranteed by California law.”

Thus, the fact that a majority of the United States Supreme Court have now chosen to contract the area of active and critical analysis under the strict scrutiny test for federal constitutional purposes can have no effect upon the existing construction and application afforded our own constitutional provisions. Nor can the additional fact — if it be a fact — that certain of the high court’s former decisions (which may have been relied upon by us in Serrano I) may not be expected to thrive in the shadow of Rodriguez cause us to withdraw from the principles we there announced on state as well as federal grounds.

For these reasons then, we now adhere to our determinations, made in Serrano I, that for the reasons there stated and for purposes of assessing our state public school financing system in light of our state constitutional provisions guaranteeing equal protection of the laws (1) discrimination  in educational opportunity on the basis of district wealth involves a suspect classification, and (2) education is a fundamental interest. Because the school financing system here in question has been shown by substantial and convincing evidence produced at trial to involve a suspect classification (insofar as this system, like the former one, draws distinctions on the basis of district wealth), and because that classification affects the fundamental interest of the students of this state in education, we have no difficulty in concluding today, as we concluded in Serrano I, that the school financing system before us must be examined under our state constitutional provisions with that strict and searching scrutiny appropriate to such a case.

We are fortified in reaching this conclusion by language appearing in the Rodriguez decision itself. The high court, in passing upon the validity of the Texas system under the federal equal protection clause, repeatedly emphasized its lack of “expertise” and familiarity with local problems of school financing and educational policy, which lack “[counseled] against premature interference with informed judgments made at the state and local levels.” These considerations, in conjunction with abiding concerns from the standpoint of federalism, in the high court’s view “[buttressed] [its] conclusion that Texas’ system of public school finance is an inappropriate candidate for strict judicial scrutiny.”

This court, on the other hand, in addressing the instant case occupies a position quite different from that of the high court in Rodriguez. The constraints of federalism, so necessary to the proper functioning of our unique system of national government, are not applicable to this court in its determination of whether our own state’s public school financing system runs afoul of state constitutional provisions. Moreover, while we cannot claim that we have achieved the perspective of “expertise” on the subjects of school financing and educational policy, our deliberations in this matter have had the benefit of a thoughtfully developed trial record (comprising almost 4,000 pages of testimonial transcript, replete with the opinions of experts of various accomplishments and persuasions, and a clerk’s transcript of almost equal size), comprehensive if not exhaustive findings on the part of an able trial judge, and voluminous briefing by the parties and no less than nine amici curiae, among which are included the state Superintendent of Public Instruction. We believe that this background amply equips us to undertake the searching judicial scrutiny of our state’s public school financing system which is required of us under our state constitutional provisions guaranteeing equal protection of the laws.

We point out in closing, however, that our application of the strict scrutiny test in this case should in no way be interpreted to imply an acceptance of the theory, adopted by the trial court and advanced as an alternative rationale by plaintiffs and some of their supporting amici, by which the Rodriguez approach to assessing “fundamentalness” in affected rights is applied by analogy in the state sphere. Suffice it to say that we are constrained no more by inclination than by authority to gauge the importance of rights and interests affected by legislative classifications wholly through determining the extent to which they are “explicitly or implicitly guaranteed” by the terms of our compendious, comprehensive, and distinctly mutable state Constitution.

We have concluded that the state public school financing system here under review, because it establishes and perpetuates a classification based upon district wealth which affects the fundamental interest of education, must be subjected to strict judicial scrutiny in determining whether it complies with our state equal protection provisions. Under this standard the presumption of constitutionality normally attaching to state legislative classifications falls away, and the state must shoulder the burden of establishing that the classification in question is necessary to achieve a compelling state interest.

Our reasons for this conclusion are essentially those stated by us on this point in Serrano I. The system in question has been found by the trial court, on the basis of substantial and convincing evidence, to suffer from the same basic shortcomings as that system which was alleged to exist in the original complaint — to wit, it allows the availability of educational opportunity to vary as a function of the assessed valuation per ADA of taxable property within a given district. The state interest advanced in justification of this discrimination continues to be that of local control of fiscal and educational matters. However, the trial court has found that asserted interest to be chimerical from the standpoint of those districts which are less favored in terms of taxable wealth per pupil, and we ourselves, after a thorough examination of the record, are in wholehearted agreement with this assessment.

To recapitulate, we conclude that the trial court properly ordered and decreed that the California public school financing system for public elementary and secondary schools, including those provisions of the S.B. 90 and A.B. 1267 legislation pertaining to this system, while not in violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution, is invalid as being in violation of former article I, sections 11 and 21 (now art. IV, § 16 and art. I, § 7, respectively) of the California Constitution, commonly known as the equal protection of the laws provisions of our state Constitution. This determination and the other related provisions of the judgment we find to be fully supported by the findings and the evidence; indeed, no attack has been made on the findings as lacking evidentiary support. We conclude that the holding of the trial court is grounded solidly and soundly on our earlier decision in Serrano I wherein we determined among other things that the California public school financing system, failing to withstand “strict scrutiny,” denied plaintiffs the equal protection of the laws under the relevant provisions of our state Constitution. We therefore confirm that our decision in Serrano I was based not only on the equal protection provisions of the federal Constitution but also on such provisions of our state Constitution, and we emphasize that insofar as the latter provisions are applicable here, Serrano I constitutes the law of the case. The judgment is affirmed.

CLARK, J. I dissent.

Our schools serve nearly 5 million students, spending over $ 5 billion. The educational system works amazingly well, considering its huge size, the complexity of its support, and the great diversity of geography, population and commerce within our state. The system provides a high and relatively uniform level of educational opportunity.

Our present system of school financing has three abilities or goals: (a) to provide a high level of equality in access to resources; 3 (b) to maintain  a high level of local control over the nature and amount of expenditure; and (c) to require a substantial level of fiscal responsibility. Our legislative and executive branches, no doubt based on their experience with numerous federal-state financing programs, have established a system in which the level of equal opportunity cannot be significantly increased without major sacrifice of local fiscal or administrative control.

[Most of Justice Clark’s opinion is omitted. Ed.]

Conclusion

I conclude that we cannot have absolute equality of opportunity in school funding — and perhaps not in any other sector of governmental activity. The absolute equality demanded by today’s majority opinion is particularly unobtainable if fiscal responsibility and local control — both compelling interests — shall be preserved. While California’s present system for school financing may be less than perfect and although it departs from total equality, the minor departure is justified and the system should be upheld. Furthermore, invalidation takes from the poor and gives to those more fortunate — hardly the goal of equal protection.

I would reverse the judgment.

 

Plyler v. Doe, 457 U.S. 202 (1982)

Justice BRENNAN delivered the opinion of the Court.

The question presented by these cases is whether, consistent with the Equal Protection Clause of the Fourteenth Amendment, Texas may deny to undocumented school-age children the free public education that it provides to children who are citizens of the United States or legally admitted aliens. The Fourteenth Amendment provides that “[n]o State shall … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Whatever his status under the immigration laws, an alien is surely a “person” in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as “persons” guaranteed due process of law by the Fifth and Fourteenth Amendments.

Each aspect of the Fourteenth Amendment reflects an elementary limitation on state power. To permit a State to employ the phrase “within its jurisdiction” in order to identify subclasses of persons whom it would define as beyond its jurisdiction, thereby relieving itself of the obligation to assure that its laws are designed and applied equally to those persons, would undermine the principal purpose for which the Equal Protection Clause was incorporated in the Fourteenth Amendment. The Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation. That objective is fundamentally at odds with the power the State asserts here to classify persons subject to its laws as nonetheless excepted from its protection. Use of the phrase “within its jurisdiction” thus does not detract from, but rather confirms, the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State’s territory.

We turn to a consideration of the standard appropriate for the evaluation of [the Texas statute]. Sheer incapability or lax enforcement of the laws barring entry into this country, coupled with the failure to establish an effective bar to the employment of undocumented aliens, has resulted in the creation of a substantial “shadow population” of illegal migrants — numbering in the millions — within our borders.17 This situation raises the specter of a permanent caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor, but nevertheless denied the benefits that our society makes available to citizens and lawful residents.18 The existence of such an underclass presents most difficult problems for a Nation that prides itself on adherence to principles of equality under law.19 The children who are plaintiffs in these cases are special members of this underclass. Persuasive arguments support the view that a State may withhold its beneficence from those whose very presence within the United States is the product of their own unlawful conduct. These arguments do not apply with the same force to classifications imposing disabilities on the minor children of such illegal entrants. At the least, those who elect to enter our territory by stealth and in violation of our law should be prepared to bear the consequences, including, but not limited to, deportation. But the children of those illegal entrants are not comparably situated. [The Texas statute] is directed against children, and imposes its discriminatory burden on the basis of a legal characteristic over which children can have little control. It is thus difficult to conceive of a rational justification for penalizing these children for their presence within the United States.

Public education is not a “right” granted to individuals by the Constitution. But neither is it merely some governmental “benefit” indistinguishable from other forms of social welfare legislation. Both the importance of education in maintaining our basic institutions, and the lasting impact of its deprivation on the life of the child, mark the distinction. In addition, education provides the basic tools by which individuals might lead economically productive lives to the benefit of us all. In sum, education has a fundamental role in maintaining the fabric of our society. We cannot ignore the significant social costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests.

In addition to the pivotal role of education in sustaining our political and cultural heritage, denial of education to some isolated group of children poses an affront to one of the goals of the Equal Protection Clause: the abolition of governmental barriers presenting unreasonable obstacles to advancement on the basis of individual merit.

But more is involved in these cases than the abstract question whether [the Texas statute] discriminates against a suspect class, or whether education is a fundamental right. [It] imposes a lifetime hardship on a discrete class of children not accountable for their disabling status. The stigma of illiteracy will mark them for the rest of their lives. By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation. In determining the rationality of [the Texas statue], we may appropriately take into account its costs to the Nation and to the innocent children who are its victims. In light of these countervailing costs, the discrimination contained in [it] can hardly be considered rational unless it furthers some substantial goal of the State.

If the State is to deny a discrete group of innocent children the free public education that it offers to other children residing within its borders, that denial must be justified by a showing that it furthers some substantial state interest. No such showing was made here. Accordingly, the judgment of the Court of Appeals in each of these cases is

Affirmed.

 

Affirmative action

Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978)

Mr. Justice POWELL announced the judgment of the Court.

[The Medical School of the University of California Davis reserved 16 seats in its entering classes of 100 students for members of racial minority groups. A white applicant who was denied admission challenged this program, alleging that he was excluded because of his race from the opportunity of being considered for one of those 16 seats.

By that time [1940], it was no longer possible to peg the guarantees of the Fourteenth Amendment to the struggle for equality of one racial minority. During the dormancy of the Equal Protection Clause, the United States had become a Nation of minorities.30 Each had to struggle31—and to some extent struggles still32—to overcome the prejudices not of a monolithic majority, but of a “majority” composed of various minority groups of whom it was said—perhaps unfairly in many cases—that a shared characteristic was a willingness to disadvantage other groups.33 As the Nation filled with the stock of many lands, the reach of the Clause was gradually extended to all ethnic groups seeking protection from official discrimination. Although many of the Framers of the Fourteenth Amendment conceived of its primary function as bridging the vast distance between members of the Negro race and the white “majority,” the Amendment itself was framed in universal terms, without reference to color, ethnic origin, or condition of prior servitude.

Over the past 30 years, this Court has embarked upon the crucial mission of interpreting the Equal Protection Clause with the view of assuring to all persons “the protection of equal laws in a Nation confronting a legacy of slavery and racial discrimination. Because the landmark decisions in this area arose in response to the continued exclusion of Negroes from the mainstream of American society, they could be characterized as involving discrimination by the “majority” white race against the Negro minority. But they need not be read as depending upon that characterization for their results. It suffices to say that “over the years, this Court has consistently repudiated ‘distinctions between citizens solely because of their ancestry’ as being ‘odious to a free people whose institutions are founded upon the doctrine of equality.

Petitioner urges us to adopt for the first time a more restrictive view of the Equal Protection Clause and hold that discrimination against members of the white “majority” cannot be suspect if its purpose can be characterized as “benign.”34 The clock of our liberties, however, cannot be turned back to 1868. It is far too late to argue that the guarantee of equal protection *to all persons permits the recognition of special wards entitled to a degree of protection greater than that accorded others.35 “The Fourteenth Amendment is not directed solely against discrimination due to a ‘two-class theory’—that is, based upon differences between ‘white’ and Negro.”

Once the artificial line of a “two-class theory” of the Fourteenth Amendment is put aside, the difficulties entailed in varying the level of judicial review according to a perceived “preferred” status of a particular racial or ethnic minority are intractable. The concepts of “majority” and “minority” necessarily reflect temporary arrangements and political judgments. As observed above, the white “majority” itself is composed of various minority groups, most of which can lay claim to a history of prior discrimination at the hands of the State and private individuals. Not all of these groups can receive preferential treatment and corresponding judicial tolerance of distinctions drawn in terms of race and nationality, for then the only “majority” left would be a new minority of white Anglo-Saxon Protestants. There is no principled basis for deciding which groups would merit “heightened judicial solicitude” and which would not.36 Courts would be asked to evaluate the extent of the prejudice and consequent harm suffered by various minority groups. Those whose societal injury is thought to exceed some arbitrary level of tolerability then would be entitled to preferential classifications at the expense of individuals belonging to other groups. Those classifications would be free from exacting judicial scrutiny. As these preferences began to have their desired effect, and the consequences of past discrimination were undone, new judicial rankings would be necessary. The kind of variable sociological and political analysis necessary to produce such rankings simply does not lie within the judicial competence—even if they otherwise were politically feasible and socially desirable.37

Moreover, there are serious problems of justice connected with the idea of preference itself. First, it may not always be clear that a so-called preference is in fact benign. Courts may be asked to validate burdens imposed upon individual members of a particular group in order to advance the group’s general interest. Nothing in the Constitution supports the notion that individuals may be asked to suffer otherwise impermissible burdens in order to enhance the societal standing of their ethnic groups. Second, preferential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor having no relationship to individual worth. Third, there is a measure of inequity in forcing innocent persons in respondent’s position to bear the burdens of redressing grievances not of their making.

If it is the individual who is entitled to judicial protection against classifications based upon his racial or ethnic background because such distinctions impinge upon personal rights, rather than the individual only because of his membership in a particular group, then constitutional standards may be applied consistently. Political judgments regarding the necessity for the particular classification may be weighed in the constitutional balance, but the standard of justification will remain constant. This is as it should be, since those political judgments are the product of rough compromise struck by contending groups within the democratic process.38 When they touch upon an individual’s race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest.

If petitioner’s purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected not as insubstantial but as facially invalid. Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids. We have never approved a classification that aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations.

Hence, the purpose of helping certain groups whom the faculty of the Davis Medical School perceived as victims of “societal discrimination” does not justify a classification that imposes disadvantages upon persons like respondent, who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered.

The fourth goal asserted by petitioner is the attainment of a diverse student body. This clearly is a constitutionally permissible goal for an institution of higher education. Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment. The freedom of a university to make its own judgments as to education includes the selection of its student body.

Ethnic diversity, however, is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body. Although a university must have wide discretion in making the sensitive judgments as to who should be admitted, constitutional limitations protecting individual rights may not be disregarded. Respondent urges—and the courts below have held—that petitioner’s dual admissions program is a racial classification that impermissibly infringes his rights under the Fourteenth Amendment. As the interest of diversity is compelling in the context of a university’s admissions program, the question remains whether the program’s racial classification is necessary to promote this interest

The experience of other university admissions programs, which take race into account in achieving the educational diversity valued by the First Amendment, demonstrates that the assignment of a fixed number of places to a minority group is not a necessary means toward that end. An illuminating example is found in the Harvard College program: “In recent years Harvard College has expanded the concept of diversity to include students from disadvantaged economic, racial and ethnic groups. Harvard College now recruits not only Californians or Louisianans but also blacks and Chicanos and other minority students. . . .”

In such an admissions program,51 race or ethnic background may be deemed a “plus” in a particular applicant’s file, yet it does not insulate the individual from comparison with all other candidates for the available seats. Such qualities could include exceptional personal talents, unique work or service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage, ability to communicate with the poor, or other qualifications deemed important. In short, an admissions program operated in this way is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight. Indeed, the weight attributed to a particular quality may vary from year to year depending upon the “mix” both of the student body and the applicants for the incoming class. This kind of program treats each applicant as an individual in the admissions process.

In enjoining petitioner from ever considering the race of any applicant, however, the courts below failed to recognize that the State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin. For this reason, so much of the California court’s judgment as enjoins petitioner from any consideration of the race of any applicant must be reversed.

For the reasons stated in the [preceding] opinion, I believe that so much of the judgment of the California court as holds petitioner’s special admissions program unlawful and directs that respondent be admitted to the Medical School must be affirmed. For the reasons expressed in a separate opinion, my Brothers THE CHIEF JUSTICE, Mr. Justice STEWART, Mr. Justice REHNQUIST and Mr. Justice STEVENS concur in this judgment.

I also conclude for the reasons stated in the [preceding] opinion that the portion of the court’s judgment enjoining petitioner from according any consideration to race in its admissions process must be reversed. For reasons expressed in separate opinions, my Brothers Mr. Justice BRENNAN, Mr. Justice WHITE, Mr. Justice MARSHALL, and Mr. Justice BLACKMUN concur in this judgment.

Affirmed in part and reversed in part.

Mr. Justice MARSHALL [concurring and dissenting].

I agree with the judgment of the Court only insofar as it permits a university to consider the race of an applicant in making admissions decisions. I do not agree that petitioner’s admissions program violates the Constitution. For it must be remembered that, during most of the past 200 years, the Constitution as interpreted by this Court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a State acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier. The position of the Negro today in America is the tragic but inevitable consequence of centuries of unequal treatment. Measured by any benchmark of comfort or achievement, meaningful equality remains a distant dream for the Negro.

While I applaud the judgment of the Court that a university may consider race in its admissions process, it is more than a little ironic that, after several hundred years of class-based discrimination against Negroes, the Court is unwilling to hold that a class-based remedy for that discrimination is permissible. In declining to so hold, today’s judgment ignores the fact that for several hundred years Negroes have been discriminated against, not as individuals, but rather solely because of the color of their skins. It is unnecessary in 20th-century America to have individual Negroes demonstrate that they have been victims of racial discrimination; the racism of our society has been so pervasive that none, regardless of wealth or position, has managed to escape its impact. The experience of Negroes in America has been different in kind, not just in degree, from that of other ethnic groups. It is not merely the history of slavery alone but also that a whole people were marked as inferior by the law. And that mark has endured. The dream of America as the great melting pot has not been realized for the Negro; because of his skin color he never even made it into the pot

It is because of a legacy of unequal treatment that we now must permit the institutions of this society to give consideration to race in making decisions about who will hold the positions of influence, affluence, and prestige in America. For far too long, the doors to those positions have been shut to Negroes. If we are ever to become a fully integrated society, one in which the color of a person’s skin will not determine the opportunities available to him or her, we must be willing to take steps to open those doors. I do not believe that anyone can truly look into America’s past and still find that a remedy for the effects of that past is impermissible.

I fear that we have come full circle. After the Civil War our Government started several “affirmative action” programs. This Court in the Civil Rights Cases and Plessy v. Ferguson destroyed the movement toward complete equality. For almost a century no action was taken, and this nonaction was with the tacit approval of the courts. Then we had Brown v. Board of Education and the Civil Rights Acts of Congress, followed by numerous affirmative-action programs. Now, we have this Court again stepping in, this time to stop affirmative-action programs of the type used by the University of California.

Mr. Justice BLACKMUN [concurring and dissenting].

I suspect that it would be impossible to arrange an affirmative-action program in a racially neutral way and have it successful. To ask that this be so is to demand the impossible. In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently. We cannot—we dare not—let the Equal Protection Clause perpetuate racial supremacy.

 

Cal. Constitution Art. I sec. 31

CALIFORNIA CONSTITUTION

ARTICLE 1 DECLARATION OF RIGHTS

Sec. 31. (a) The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

(b) This section shall apply only to action taken after the section’s effective date.

(c) Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting.

(d) Nothing in this section shall be interpreted as invalidating any court order or consent decree which is in force as of the effective date of this section.

(e) Nothing in this section shall be interpreted as prohibiting action which must be taken to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the State.

(f) For the purposes of this section, “State” shall include, but not necessarily be limited to, the State itself, any city, county, city and county, public university system, including the University of California, community college district, school district, special district, or any other political subdivision or governmental instrumentality of or within the State.

(g) The remedies available for violations of this section shall be the same, regardless of the injured party’s race, sex, color, ethnicity, or national origin, as are otherwise available for violations of then-existing California antidiscrimination law.

(h) This section shall be self-executing. If any part or parts of this section are found to be in conflict with federal law or the United States Constitution, the section shall be implemented to the maximum extent that federal law and the United States Constitution permit. Any provision held invalid shall be severable from the remaining portions of this section.

 

Hi-Voltage Wire Works Inc. v. City of San Jose (2000), 24 Cal.4th 537

Hi-Voltage Wire Works, Inc., v. City of San Jose (2000), 24 Cal.4th 537, 12 P.3d 1068

BROWN, J.

In November 1996, the California voters . . . approved Proposition 209, which amended our Constitution to prohibit the state and its political subdivisions from “discriminating against, or grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” Subsequent to the approval of Proposition 209, the City of San Jose adopted a program that requires contractors bidding on city projects to utilize a specified percentage of minority and women subcontractors or to document efforts to include minority and women subcontractors in their bids.

The question before the court is whether this program contravenes article I, section 31 of the California Constitution. Although the precise issue is a narrow one, the electorate did not approve Proposition 209 in a vacuum. Quite the contrary. Thus, we can discern and thereby effectuate the voters’ intention only by interpreting this language in its historical context. Viewing the provisions of article I, section 31 from this perspective, it is clear the voters intended to adopt the original construction of the Civil Rights Act and prohibit the kind of preferential treatment accorded by this program.

[Justice Brown first reviewed landmarks of United States Supreme Court litigation involving race, such as Dred Scott, Plessy, and Brown. She then recapitulated major US Supreme Court precedents construing Title VII of the 1964 Civil Rights Act. On the basis of this historical survey, she then engaged with the issues presented by Prop 209:]

Our own decisional law has mirrored this change in focus from protection of equal opportunity for all individuals to entitlement based on group representation. During the period the United States Supreme Court was issuing its great decisions, California was not without its own “judicial harbingers of a prejudice-free society”, opinions in which “this court had consistently maintained that race or similar characteristics are not a qualification or disqualification for the benefits of society.” In Perez v. Sharp (1948), we struck down the state’s antimiscegenation statute as inimical to civilized society. In James v. Marinship Corp. (1944), the court affirmed an order that a union admit African-Americans so they could continue to work for an employer with which the union had a closed shop agreement.

Hughes v. Superior Court (1948) 32 Cal.2d 850 [198 P.2d 885] (the decision reviewed in Hughes v. Superior Court, 339 U.S. 460 [1950]) upheld a judgment of contempt against picketers who had the “unlawful objective” “not to induce [an employer] not to discriminate against, but, rather, expressly to compel [it] to discriminate arbitrarily in favor of, one race as against all others in the hiring of a portion of its clerks ….” In words that presaged the Civil Rights Act debates, the court condemned the picketers’ objective, which “would, to the extent of the fixed proportion, make the right to work for [the employer] dependent not on fitness for the work nor on an equal right of all, regardless of race, to compete in an open market, but, rather, on membership in a particular race. If petitioners were upheld in their demand then other races, white, yellow, brown and red, would have equal rights to demand discriminatory hiring on a racial basis.”

[Justice Brown then cited Mulkey v. Reitman and Bakke v. Regents to contend that the California Supreme Court had adopted an anti-classification reading of Brown.] However, this court in Price v. Civil Service Com. (1980) 26 Cal.3d 257 declined to reaffirm its categorical hostility toward racial classifications and approved a race-conscious hiring program that required the appointment of minority applicants on a preferential basis until the appointing agency attained a certain percentage of minority employees. Because the program was remedial and intended “to overcome the continuing effects of past discrimination” as well as “bring about the full participation of minority individuals in our society”, a majority found it did not violate Title VII or California’s Fair Employment Practices Act (FEPA).)

One year later in DeRonde [v. Regents], 28 Cal.3d 875 (1981), the court rejected an equal protection challenge to racial preferences accorded in a law school admissions program. “Having held in Price, wherein an express quota was applied, that the state Constitution places no greater restrictions on affirmative action programs encouraging increased minority representation than are imposed by the federal Constitution, a fortiori, under principles of stare decisis, we impose no state constitutional bar where the program involves no fixed quota but only consideration of race as one among several other qualifying factors.” As with decisions of the United States Supreme Court, we thus find a fundamental shift from a staunch antidiscrimination jurisprudence to approval, sometimes endorsement, of remedial race and sex-conscious governmental decisionmaking.

[Construing Prop 209 itself, Justice Brown wrote:] “A constitutional amendment should be construed in accordance with the natural and ordinary meaning of its words. Nothing in the ballot arguments or in the Legislative Analyst’s analysis suggests that a different rule should apply with respect to “discriminate” and “preferential treatment” as used in section 31, or that the voters intended them to have any specialized meaning. “Discriminate” means “to make distinctions in treatment; show partiality (in favor of) or prejudice (against)”; “preferential” means giving “preference,” which is “a giving of priority or advantage to one person … over others.” Interpreting section 31 accordingly, we conclude, as did the Court of Appeal, that the City’s Program is unconstitutional because the outreach option affords preferential treatment to MBE/WBE [Minority Business Enterprise/Women Business Enterprise] subcontractors on the basis of race14 or sex, and the participation option discriminates on the same bases against non-MBE/WBE subcontractors as well as general contractors that fail to fulfill either of the options when submitting their bids.

The argument in favor of Proposition 209 [contained in the Ballot Pamphlet that accompanied the initiative measure] stated in part, “A generation ago, we did it right. We passed civil rights laws to prohibit discrimination. But special interests hijacked the civil rights movement. Instead of equality, governments imposed quotas, preferences, and set-asides. Proposition 209 is called the California Civil Rights Initiative because it restates the historic Civil Rights Act …. Real ‘affirmative action’ originally meant no discrimination and sought to provide opportunity.” “Anyone opposed to Proposition 209 is opposed to the 1964 Civil Rights Act.” The initiative’s proponents further argued: “ ‘Reverse Discrimination’ Based on Race or Gender Is Plain Wrong!] And two wrongs don’t make a right! …Government should not discriminate. It must not give a job, a university admission, or a contract based on race or sex. Government must judge all people equally, without discrimination! Government cannot work against discrimination if government itself discriminates…. We are individuals! Not every white person is advantaged. And not every ‘minority’ is disadvantaged. Real ‘affirmative action’ originally meant no discrimination and sought to provide opportunity…. The only honest and effective way to address inequality of opportunity is by making sure that all California children are provided with the tools to compete in our society. And then let them succeed on a fair, color-blind, race-blind, gender-blind basis. Let’s not perpetuate the myth that ‘minorities’ and women cannot compete without special preference. Let’s instead move forward by returning to the fundamentals of our democracy: individual achievement, equal opportunity and zero tolerance for discrimination against-or for-any individual.”

The outreach component requires contractors to treat MBE/WBE subcontractors more advantageously by providing them notice of bidding opportunities, soliciting their participation, and negotiating for their services, none of which they must do for non-MBE’s/WBE’s. The fact prime contractors are not precluded from contacting non-MBE’s/WBE’s is irrelevant. The relevant constitutional consideration is that they are compelled to contact MBE’s/WBE’s, which are thus accorded preferential treatment within the meaning of section 31. The participation component authorizes or encourages what amounts to discriminatory quotas or set-asides, or at least race- and sex-conscious numerical goals. A participation goal differs from a quota or set-aside only in degree; by whatever label, it remains “a line drawn on the basis of race and ethnic status” as well as sex.

The judgment of the Court of Appeal is affirmed.

GEORGE, C. J., Concurring and Dissenting.

[Chief Justice George concurred in the result.] I cannot join the majority opinion, however, because in my view the major portion of that opinion’s discussion is not only unnecessary to the resolution of the issue before us, but is likely to be viewed as less than evenhanded. Particularly in a case involving an initiative measure that is as sensitive and potentially divisive as Proposition 209, I believe it is essential that this court speak through an opinion whose language and analysis clearly demonstrate to the parties and to the public that the court appreciates that its task is simply to interpret and apply the initiative’s language so as to effectuate the electorate’s intent. Viewing the majority opinion as a whole, I believe it falls short of this standard.

The overall tenor of the majority opinion’s discussion of these decisions — including its repeated and favorable quotation from dissenting opinions in these cases and from academic commentators critical of these decisions — leaves little doubt that the majority opinion embraces the view that the types of affirmative action programs at issue in these past decisions always have violated the provisions of the federal and state equal protection clauses and Title VII, and that the numerous decisions of the United States Supreme Court and this court that reached a contrary conclusion were wrongly decided.

The issue before us in this case, however, is not the validity of past decisions interpreting or applying other constitutional or statutory provisions — such as the federal or state equal protection clauses or Title VII — but rather the proper interpretation and application of article I, section 31, the provision added to the California Constitution by Proposition 209. By using misleading and unflattering slogans to characterize past judicial decisions upholding race-conscious and gender-conscious affirmative action programs-describing such decisions as “replacing individual right of equal opportunity with proportional group representation” and as endorsing a change “from protection of equal opportunity for all individuals to entitlement based on group representation”, the majority opinion, in my view, will be widely and correctly viewed as presenting an unfair and inaccurate caricature of the objective or justification of the overwhelming majority of race or gender-conscious affirmative action programs. The terminology employed by the majority opinion ignores the circumstance that, in many instances, race or gender has been utilized as a “plus” factor in the affirmative action setting-not because of any belief in group entitlement or proportional representation, but rather to obtain the benefits that are anticipated to flow from the inclusion of one or more persons from groups that are not currently represented in a given entity or organization.

Finally, in my view, the general theme that runs throughout the majority opinion’s historical discussion — that there is no meaningful distinction between discriminatory racial policies that were imposed for the clear purpose of establishing and preserving racial segregation, on the one hand, and race-conscious affirmative action programs whose aim is to break down or eliminate the continuing effects of such segregation and discrimination, on the other — represents a serious distortion of history and does a grave disservice to the sincerely held views of a significant segment of our populace.

Although this court has concluded that the two components of the city’s public contracting program that are challenged in this case violate article I, section 31, this determination should not obscure the important point that this constitutional provision does not prohibit all affirmative action programs or preclude governmental entities in this state from initiating a great variety of proactive steps in an effort to address the continuing effects of past discrimination or exclusion, and to extend opportunities in public employment, public education, and public contracting to all members of the community.

 

Crawford v. Huntington Beach Union High School Dist. (2002), 98 Cal.App.4th 1275

Crawford v. Huntington Beach Union High School District (2002), 98 Cal.App.4th 1275, 121 Cal.Rptr.2d 96

SILLS, P. J.

Donald Bruce Crawford sued the Huntington Beach Union High School District and the California Department of Education, contending the racial and ethnic balancing component of the District’s open-transfer policy violates Proposition 209 (Cal. Const., art. I, § 31). He appeals the judgment entered after the trial court denied his motion for summary judgment and granted the District’s. We agree with his contention on appeal — that the policy violates Proposition 209. Accordingly, we reverse the judgment.

The District has an open transfer policy for all its high schools. The open-transfer policy has a “racial and ethnic balance” component as required by section 35160.5 of the state Education Code. This statute dictates that “school districts shall retain the authority to maintain appropriate racial and ethnic balances among their respective schools at the school districts’ discretion or as specified in applicable court-ordered or voluntary desegregation plans.”

To prevent an “inappropriate” racial and ethnic balance, the District restricts transfers to and from Westminster High School. If you are White and you live inside the high school’s attendance area, you cannot transfer out unless another White student is willing to transfer in and take your place. If you are non-White and you live outside the high school’s attendance area, you cannot transfer in unless another non-White student is willing to transfer out and you take that student’s place.

The imposition of these restrictions is inconsistent with the freedom of choice that voluntary programs provide. And more importantly, the policy creates different transfer criteria for students solely on the basis of their race. A White student may not transfer from Westminster High School to a different school until a White student chooses to transfer in and fills the void. A non-White student must wait to transfer into Westminster High School until a non-White student transfers out thereby creating essentially a “non-White opening.”

The District asserts Proposition 209 was never intended to eliminate school integration programs. Yet, by its terms, article I, section 31 of the state Constitution, applies to public education. Subdivision (a) of section 31 plainly says that “The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of … public education ….” The ballot materials concerning Proposition 209 were quite clear that even race-conscious “desegregation” programs could be affected by Proposition 209.

The District proposes that the transfer policy is required under the equal protection clause of the Constitution of the United States. While there can be no question the United States Constitution prohibits a school district from acting to segregate schools, there is no federal constitutional mandate necessitating the implementation of a proactive program of integration. The United States Supreme Court has made it clear that such a plan is not required by the federal equal protection clause.

“Racial isolation” or “imbalance” that is not the result of segregative intent does not require a racially discriminatory “desegregation” plan.

With respect to the equal protection provisions of the California Constitution, the District relies, in part, on statements from Crawford v. Board of * Education (1976), San Francisco Unified School Dist. v. Johnson (1971), and Jackson v. Pasadena City School Dist. (1963), and other pre-Proposition 209 California cases. But Proposition 209 has undeniably changed the state law. It is a firmly established rule of constitutional jurisprudence that where two constitutional provisions conflict, the one that was enacted later in time controls.

It is not our intention to suggest that there cannot be any “integration plans” under Proposition 209. We stress that an “integration plan” developed by a school board need not offend Proposition 209 if it does not discriminate or grant preferences on the basis of race or ethnicity. We do not dispute the evils of segregated schools and we recognize the potential benefits of attending a racially and ethnically diverse school, but the people have spoken. California Constitution, article I, section 31 is clear in its prohibition against discrimination or preferential treatment based on race, sex, color, ethnicity or national origin. Thus, the racial balancing component of the District’s open transfer policy is invalid under our state Constitution.

The judgment is reversed. The trial court is directed to enter a new order denying the District’s motion for summary judgment and granting Crawford’s motion for summary judgment and to enter a new judgment accordingly.

 

Equal protection and fundamental interests

Cal. Constitution Art. I sec. 7

CALIFORNIA CONSTITUTION

ARTICLE 1 DECLARATION OF RIGHTS

SEC. 7. (a) A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws; provided, that nothing contained herein or elsewhere in this Constitution imposes upon the State of California or any public entity, board, or official any obligations or responsibilities which exceed those imposed by the Equal Protection Clause of the 14th Amendment to the United States Constitution with respect to the use of pupil school assignment or pupil transportation. In enforcing this subdivision or any other provision of this Constitution, no court of this State may impose upon the State of California or any public entity, board, or official any obligation or responsibility with respect to the use of pupil school assignment or pupil transportation, (1) except to remedy a specific violation by such party that would also constitute a violation of the Equal Protection Clause of the 14th Amendment to the United States Constitution, and (2) unless a federal court would be permitted under federal decisional law to impose that obligation or responsibility upon such party to remedy the specific violation of the Equal Protection Clause of the 14th Amendment of the United States Constitution.

Except as may be precluded by the Constitution of the United States, every existing judgment, decree, writ, or other order of a court of this State, whenever rendered, which includes provisions regarding pupil school assignment or pupil transportation, or which requires a plan including any such provisions shall, upon application to a court having jurisdiction by any interested person, be modified to conform to the provisions of this subdivision as amended, as applied to the facts which exist at the time of such modification.

In all actions or proceedings arising under or seeking application of the amendments to this subdivision proposed by the Legislature at its 1979-80 Regular Session, all courts, wherein such actions or proceedings are or may hereafter be pending, shall give such actions or proceedings first precedence over all other civil actions therein.

Nothing herein shall prohibit the governing board of a school district from voluntarily continuing or commencing a school integration plan after the effective date of this subdivision as amended.

In amending this subdivision, the Legislature and people of the State of California find and declare that this amendment is necessary to serve compelling public interests, including those of 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.

(b) A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens. Privileges or immunities granted by the Legislature may be altered or revoked.

 

2. David B. Cruz, “Equality’s Centrality: Proposition 8 and the California Constitution”

David B. Cruz, “Equality’s Centrality: Proposition 8 and the California Constitution,” 19 S. Cal. Rev. L. & Soc. Just. 45 (2010)

 

II. EQUALITY IN THE TEXT OF CALIFORNIA’S CONSTITUTION

The California Constitution is replete with provisions demonstrating the California constitutional order’s continued commitment to equality. The very first Article of California’s Constitution (following the Preamble) is the Declaration of Rights, and its very first guarantee provides: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”67

The right of privacy, one of the sources of the fundamental right to marry protected by the California Supreme Court in the Marriage Cases, is one of the inalienable rights declared at the beginning of the state’s constitution.68 It is a right enjoyed by Californians precisely because they are free and independent by nature. These clauses do not expressly state that these inalienable rights are enjoyed equally, but that is certainly implicit in their extension to “all people . . . by nature.”69 Without necessarily having to embrace the Attorney General’s precise doctrinal theory of “inalienable rights,”70 the fact that these rights are implied by human nature and deemed inalienable should have caused the Justices to pause before interpreting the California Constitution to allow a simple majoritarian amendment of the state constitution to strip such rights from groups defined by suspect classifications. [Prof Cruz was referring to the California Supreme Court’s decision in Strauss v. Horton (2009) upholding Prop 8. Ed.] If a naked majority can eliminate these rights, not just generally, but from a specific subset of the population, such a radical power to impose inequality is necessarily in tension with the notion that these rights, enjoyed by “all people,” are inalienable.

Moreover, the California Constitution does not require its interest in equality to be gleaned by inference, however strong, from its first provisions. Rather, the Declaration of Rights includes distinct equality clauses. Article IV, section 16 contains a pair of guarantees tracing back to the 1849 Constitution.71 Section 16(a) requires that “all laws of a general nature [shall] have uniform operation;”72 Section 16(b) dictates that “a local or special statute is invalid in any case if a general statute can be made applicable.”73 By ensuring uniformity, these provisions ensure equal treatment. In addition, and most generally, article I, section 7(a) provides in part that “a person may not be . . . denied equal protection of the laws.”74 This clause, linguistically parallel to the federal Equal Protection Clause,75 was added to the state constitution by voter approval of a constitutional revision in 1974.76

Even before this specific Equal Protection Clause was added, the state constitution included a Class Legislation Clause: Article I, section 7(b) of the California Constitution provides that “a citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens. Privileges or immunities granted by the Legislature may be altered or revoked.”77 There is more historically recent California case law that treats this clause, more commonly termed the Privileges or Immunities Clause, as merely part of an undifferentiated equal protection guarantee.78 This is a mistake. The state’s privileges or immunities clause is a related but distinct guarantee of equality,79 with longstanding roots in the state constitution.

The original Privileges or Immunities Clause of the California Constitution read: “No special privileges or immunities shall ever be granted which may not be altered, revoked, or repealed by the legislature, nor shall any citizen, or class of citizens, be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens.”80 It was promulgated with almost no debate in the 1878-1879 Constitutional Convention.81 In introducing the measure to the Convention, Mr. Van Dyke issued a report from the Committee on Preamble and Bill of Rights, stating: “We have inserted a new section declaring against special privileges and immunities. Several propositions were referred to us bearing upon this subject, and many of the Constitutions of other States contain similar provisions.”82 In arguing against a motion to strike a predecessor provision mandating that “all laws of a general nature shall have a uniform operation”83 — ultimately retained by the 1878-1879 Convention — Mr. McFarland defended its inclusion in broad equality terms by stating “it is a fundamental principle in our government that no law shall be passed which affects one person and not the balance of the community. That is the principle, as I understand it, that saves all our personal rights.”84

 

When a substantial revision to the state Constitution was proposed in 1970, this clause was redrafted into its present form, but the drafters did not intend to change its meaning.85 The Report of the Revision Commission explained: “Existing section 21 [of the California Constitution] prohibits the Legislature granting [sic] special privileges or immunities to one class of citizen which are not granted to all citizens. The Commission recommends retention of this provision and the addition of a clause granting equal protection and due process of law to all persons. Although the Fourteenth Amendment to the federal Constitution assures due process and equal protection, the Commission believes that our fundamental legal document should also provide these guarantees.86”

If California’s Privileges or Immunities Clause really was substantially identical to the Fourteenth Amendment’s Equal Protection Clause (or Due Process Clause),87 the Revision Commission presumably would not have thought that California’s Constitution did not “provide these guarantees.” Hence, the California Class Legislation Clause (or the Privileges or Immunities Clause) is best understood as yet one more separate guarantee of equality.

The California Constitution also contains equality guarantees with regard to political rights. Article I, section 22 provides, “the right to vote or hold office may not be conditioned by a property qualification,”88 thus protecting the political rights of all, including poorer persons. Article 21, section 1(b) protects equality of representation: “The population of all congressional districts shall be reasonably equal.”89

Property rights are the subject of certain equality guarantees. Article I, section 20 contains an equality guarantee concerning property rights, crafted in the original 1849 Constitutional Convention, namely: “Noncitizens have the same property rights as citizens.”90 Additionally, article I, section 21 protects married women from having their property made subject to the control of their husbands.91

Other provisions in the California Constitution also provide specific equality guarantees in certain domains. For example, article I, section 8 proscribes various forms of occupational discrimination in government licensing or regulation: “A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin.”92 Similarly, but more broadly, article I, section 31 specifies that “the state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”93 Although this provision limits affirmative action, which many people believe necessary for genuine substantive equality, it does so in the service of its own conception of equality and nondiscrimination.

Repeatedly, and from its inception, the California Constitution has contained a multitude of provisions guaranteeing equality. The sheer numerosity of these provisions, even if insufficient to establish with the California Supreme Court that Prop 8’s equality override amounted to a “quantitative” revision of the state constitution, should have weighed heavily in the court’s consideration of whether Prop 8 effectuated a “qualitative” revision.94 These provisions all help establish that equality has always been, and indeed remains, not simply “a long-standing and fundamental constitutional principle,”95 but indeed a core, foundational principle of the California Constitution.

Dept. of Mental Hygiene v. Kirchner (1965), 62 Cal.2d 586

THE COURT:

Memorandum Opinion In re Jurisdictional Clarification of Ground of Ruling Pursuant to Mandate by United States Supreme Court on Petition for Writ of Certiorari.

The Supreme Court of the United States on March 8, 1965, issued the following “judgment and mandate”: “The judgment of the Supreme Court of California is vacated and the cause remanded to that court for such further proceedings as may be appropriate under state law.”

Preceding and explanatory of the quoted order are the statements hereinafter excerpted: “The California Supreme Court did not state whether its holding was based on the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States or the equivalent provision of the California Constitution, or both. … “An examination of the opinion of the California Supreme Court … does not indicate whether that court relied on the State Constitution alone, the Federal Constitution alone, or both; and we would have jurisdiction to review only if the federal ground had been the sole basis for the decision, or the State Constitution was interpreted under what the state court deemed the compulsion of the Federal Constitution. … “[W]e cannot say with the requisite certainty that the California judgment rested solely on the Fourteenth Amendment, or, amounting to the same thing, that in striking the statute down under the State Constitution the court below acted under what it conceived to be the compulsion of the Federal Constitution [citation]; one or the other determination would be necessary to our exercising jurisdiction. … Because of California law, we cannot hold the case on our calendar until the parties submit a clarifying certificate from the California Supreme Court, but we can obviate undue delay by vacating the judgment of the California Supreme Court, directing that our mandate issue forthwith, and giving leave to the parties to file a new petition for certiorari … if on further proceedings the California Supreme Court holds that its judgment does not rest on an adequate independent nonfederal ground.”

Pursuant to the mandate hereinabove quoted we have reexamined our opinion in the subject case and certify as follows:

(1) It has been and is our understanding that the Fourteenth Amendment to the federal Constitution, and sections 11 and 21 of article I of the California Constitution, provide generally equivalent but independent protections in their respective jurisdictions.

California Constitution, article I, section 11, requires that “All laws of a general nature shall have a uniform operation” and section 21 of the same article specifies that “No special privileges or immunities shall ever be granted which may not be altered, revoked or repealed by the Legislature; nor shall any citizen, or class of citizens, be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens.” These provisions of our state Constitution have been generally thought in California to be substantially the equivalent of the equal protection clause of the Fourteenth Amendment to the United States Constitution.

While it is our view that we should reach the same conclusion under the Fourteenth Amendment we were (and we are) in any event independently constrained to the result we reached by sections 11 and 21, article I, of the California Constitution. We so conclude by our construction and application of California law, regardless of whether there is or is not compulsion to the same end by the federal Constitution.

Inasmuch as we did not act solely by compulsion of the Fourteenth Amendment, either directly or in construing or in applying state law, we reiterate our former decision as filed January 30, 1964.

Let the remittitur issue forthwith.

 

Johnson v. California, 543 U.S. 499 (2005

Justice O’CONNOR delivered the opinion of the Court.

The California Department of Corrections (CDC) has an unwritten policy of racially segregating prisoners in double cells in reception centers for up to 60 days each time they enter a new correctional facility. We consider whether strict scrutiny is the proper standard of review for an equal protection challenge to that policy.

CDC institutions house all new male inmates and all male inmates transferred from other state facilities in reception centers for up to 60 days upon their arrival. During that time, prison officials evaluate the inmates to determine their ultimate placement. Double-cell assignments in the reception centers are based on a number of factors, predominantly race. The CDC further subdivides prisoners within each racial group. Thus, Japanese-Americans are housed separately from Chinese-Americans, and northern California Hispanics are separated from southern California Hispanics.

The CDC’s asserted rationale for this practice is that it is necessary to prevent violence caused by racial gangs. It cites numerous incidents of racial violence in CDC facilities and identifies five major prison gangs in the State: Mexican Mafia, Nuestra Familia, Black Guerilla Family, Aryan Brotherhood, and Nazi Low Riders. The CDC also notes that prison-gang culture is violent and murderous. An associate warden testified that if race were not considered in making initial housing assignments, she is certain there would be racial conflict in the cells and in the yard. Other prison officials also expressed their belief that violence and conflict would result if prisoners were not segregated.. The CDC claims that it must therefore segregate all inmates while it determines whether they pose a danger to others. With the exception of the double cells in reception areas, the rest of the state prison facilities-dining areas, yards, and cells-are fully integrated. After the initial 60-day period, prisoners are allowed to choose their own cellmates. The CDC usually grants inmate requests to be housed together, unless there are security reasons for denying them.

We have held that “all racial classifications [imposed by government] … must be analyzed by a reviewing court under strict scrutiny.” Under strict scrutiny, the government has the burden of proving that racial classifications “are narrowly tailored measures that further compelling governmental interests.” We have insisted on strict scrutiny in every context, even for so-called “benign” racial classifications, such as race-conscious university admissions policies, race-based preferences in government contracts, and race-based districting intended to improve minority representation. The CDC claims that its policy should be exempt from our categorical rule because it is “neutral” — that is, it “neither benefits nor burdens one group or individual more than any other group or individual.” In other words, strict scrutiny should not apply because all prisoners are “equally” segregated. The CDC’s argument ignores our repeated command that “racial classifications receive close scrutiny even when they may be said to burden or benefit the races equally.

The need for strict scrutiny is no less important here, where prison officials cite racial violence as the reason for their policy. As we have recognized in the past, racial classifications “threaten to stigmatize individuals by reason of their membership in a racial group and to incite racial hostility.” Indeed, by insisting that inmates be housed only with other inmates of the same race, it is possible that prison officials will breed further hostility among prisoners and reinforce racial and ethnic divisions. By perpetuating the notion that race matters most, racial segregation of inmates “may exacerbate the very patterns of [violence that it is] said to counteract.”

The CDC invites us to make an exception to the rule that strict scrutiny applies to all racial classifications, and instead to apply the deferential standard of review articulated in Turner v. Safley (1987), because its segregation policy applies only in the prison context. We decline the invitation. In Turner, we considered a claim by Missouri prisoners that regulations restricting inmate marriages and inmate-to-inmate correspondence were unconstitutional. We rejected the prisoners’ argument that the regulations should be subject to strict scrutiny, asking instead whether the regulation that burdened the prisoners’ fundamental rights was “reasonably related” to “legitimate penological interests.”

We have never applied Turner to racial classifications. The right not to be discriminated against based on one’s race is not susceptible to the logic of Turner. It is not a right that need necessarily be compromised for the sake of proper prison administration. On the contrary, compliance with the Fourteenth Amendment’s ban on racial discrimination is not only consistent with proper prison administration, but also bolsters the legitimacy of the entire criminal justice system. Race discrimination is “especially pernicious in the administration of justice. And public respect for our system of justice is undermined when the system discriminates based on race.

In the prison context, when the government’s power is at its apex, we think that searching judicial review of racial classifications is necessary to guard against invidious discrimination. Granting the CDC an exemption from the rule that strict scrutiny applies to all racial classifications would undermine our “unceasing efforts to eradicate racial prejudice from our criminal justice system.”

We do not decide whether the CDC’s policy violates the Equal Protection Clause. We hold only that strict scrutiny is the proper standard of review and remand the case to allow the Court of Appeals for the Ninth Circuit, or the District Court, to apply it in the first instance. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice THOMAS, with whom Justice SCALIA joins, dissenting.

The questions presented in this case require us to resolve two conflicting lines of precedent. On the one hand, as the Court stresses, this Court has said that “ ‘all racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized.’ ” On the other, this Court has no less categorically said that “the [relaxed] standard of review we adopted in Turner [v. Safley (1987),] applies to all circumstances in which the needs of prison administration implicate constitutional rights.

Emphasizing the former line of cases, the majority resolves the conflict in favor of strict scrutiny. I disagree. The Constitution has always demanded less within the prison walls. Time and again, even when faced with constitutional rights no less “fundamental” than the right to be free from state-sponsored racial discrimination, we have deferred to the reasonable judgments of officials experienced in running this Nation’s prisons. There is good reason for such deference in this case. California oversees roughly 160,000 inmates in prisons that have been a breeding ground for some of the most violent prison gangs in America-all of them organized along racial lines. In that atmosphere, California racially segregates a portion of its inmates, in a part of its prisons, for brief periods of up to 60 days, until the State can arrange permanent housing. The majority is concerned with sparing inmates the indignity and stigma of racial discrimination. California is concerned with their safety and saving their lives. I respectfully dissent.

 

Non-citizens

Cal. Constitution Art. I sec. 20

CALIFORNIA CONSTITUTION

ARTICLE 1 DECLARATION OF RIGHTS

SEC. 20. Noncitizens have the same property rights as citizens.

[From Joseph R. Grodin et al., The California State Constitution (2011), p. 65:

[On the historical evolution of the current version of Article I, section 20:]

The 1849 Constitution provided that foreigners who become residents of the state “shall enjoy the same rights in respect to the possession, enjoyment, and inheritance of property, as native born citizens.” The 1879 Constitution continued that language but with two important qualifications: to receive equal treatment with citizens, foreigners had to be “of the white race or of African descent” (thereby ruling out Asians), and they had to be “eligible to become citizens of the United States under the naturalization laws thereof.” In 1894, the right to equal treatment itself was restricted to “property, other than real estate” (with the proviso that aliens owning real estate at the time of the amendment could remain owners), and the legislature was authorized to provide for the disposition of real estate there after acquired “by descent or devise” (i.e., by reason of the death of the owner).

It was not until 1954 that the language referring to “the white race or of African descent” was deleted; the remainder of the section remained until 1974, when it was amended to its present, unqualified guarantee of equal treatment for noncitizens.]]

 

People v. Oyama (1946), 29 Cal.2d 164

People v. Oyama (1946), 29 Cal.2d 164, 173 P.2d 794

EDMONDS, Justice.

The defendants contend that the Alien Land Law is unconstitutional because enacted for the purpose of and administered in a manner to discriminate against persons solely because of race. It is urged that as to both Kajiro Oyama, [Fred’s father] an alien, and Fred Oyama, [Kajiro’s son] a citizen, the statute denies due process of law as guaranteed by article I, section 13, of the California Constitution, and violates article I, section 1, of the same Constitution which guarantees to all men the right to enjoy life, liberty and property. The point is also urged that the Alien Land Law constitutes an unlawful delegation of legislative power to the federal government, and that the phrase, ‘ineligible to citizenship’ is vague, indefinite and constitutes a denial of due process.

The state has the right to regulate the tenure and disposition of real property within its boundaries. It also has the power, in the absence of a treaty to the contrary, to forbid the taking or holding of property within its limits by aliens and our Constitution leaves to the Legislature this power with regard to all aliens ineligible to citizenship.

The [California Supreme] court said, quoting from Webb v. O’Brien, 263 U.S. 313 (1923) ‘Conceivably, by the use of such [agricultural lease] contract, the population living on and cultivating the farm lands might come to be made up largely of ineligible aliens. The allegiance of the farmers to the state directly affects its strength and safety. We think it within the power of the state to deny to ineligible aliens the privilege so to use agricultural lands within its borders.’ Porterfield v. Webb, 195 Cal. 71, 231 P. 554, 558 [1924].

The Webb v. O’Brien decision, it was pointed out in this case, ‘rests largely upon broad principles of national safety and public welfare. Unquestionably the farming of lands by ineligible aliens would give them a use, occupancy, and benefit of agricultural lands which in effect would amount to a deprivation of its use, enjoyment, and occupancy by the citizen. Any other theory would be incompatible with the occupation of husbandry. * * * Racial distinctions may furnish legitimate ground for classifications under some conditions of social or governmental necessities.”

The status of aliens in connection with the ownership of real property was also considered by the United States Supreme Court in Terrace v. Thompson [1923]. The court there pointed out that ‘two classes of aliens inevitably result from the naturalization laws — those who may and those who may not become citizens. The rule established by Congress on this subject, in and of itself, furnishes a reasonable basis for classification in a state law withholding from aliens the privilege of land ownership as defined in the act.’

Considering the contention that an alien land law similar to our own enacted by the State of Washington was repugnant to the due process clause and the equal protection clause of the Fourteenth Amendment, the [United States Supreme] court declared: ‘State legislation applying alike and equally to all aliens, withholding from them the right to own land, cannot be said to be capricious or to amount to an arbitrary deprivation of liberty or property, or to transgress the due process clause.’ Upon the subject of equal protection the court held that the classification was reasonable, saying that the rule established by Congress on the subject of naturalization ‘in and of itself, furnishes a reasonable basis for classification in a state law withholding from aliens the privilege of land ownership as defined in the act.’ The broad basis of the decision is that ‘one who is not a citizen and cannot become one lacks an interest in, and the power to effectually work for the welfare of, the state, and, so lacking, the state may rightfully deny him the right to own and lease real estate within its boundaries.’ In another case, the California statute was upheld upon these grounds, with the comment that both acts were within the police power of the respective states

The property in question passed to the State of California by reason of deficiencies existing in the ineligible alien [Kajiro], and not in the citizen [Fred] Oyama. The citizen is not denied any constitutional guarantees because an ineligible alien, for the purpose of evading the Alien Land Law, attempted to pass title to him. It is the deficiency of the alien father and not of the citizen son which is the controlling factor; therefore any constitutional guarantees to which the citizen Oyama is entitled may not properly be considered, for the deficiency in a person other than himself is the cause for the escheat. Property which the citizen never had he could not lose, and as the land escheated to the state instanter, he acquired nothing by the conveyance and the Alien Land Law took nothing from him.

The judgment is affirmed.

TRAYNOR, Justice.

I concur in the judgment on the ground that the decisions of the United States Supreme Court cited in the main opinion are controlling until such time as they are reexamined and modified by that court.

 

Oyama v. California, 332 U.S. 633 (1948)

Oyama v. California, 332 U.S. 633 (1948)

Chief Justice VINSON delivered the opinion of the Court.

Petitioners challenge the constitutionality of California’s Alien Land Law as it has been applied in this case to effect an escheat of two small parcels of agricultural land.  One of the petitioners is Fred Oyama, a minor American citizen in whose name title was taken. The other is his father and guardian, Kajiro Oyama, a Japanese citizen not eligible for naturalization, who paid the purchase price.

Petitioners press three attacks on the Alien Land Law as it has been applied in this case: first, that it deprives Fred Oyama of the equal protection of the laws and of his privileges as an American citizen; secondly, that it denies Kajiro Oyama equal protection of the laws; and, thirdly, that it contravenes the due process clause by sanctioning a taking of property after expiration of the applicable limitations period. In approaching cases, such as this one, in which federal constitutional rights are asserted, it is incumbent on us to inquire not merely whether those rights have been denied in express terms, but also whether they have been denied in substance and effect.

We agree with petitioners’ first contention, that the Alien Land Law, as applied in this case, deprives Fred Oyama of the equal protection of California’s laws and of his privileges as an American citizen. In our view of the case, the State has discriminated against Fred Oyama; the discrimination is based solely on his parents’ country of origin; and there is absent the compelling justification which would be needed to sustain discrimination of that nature

By federal statute [the Civil Rights Act of 1866, currently in relevant part 42 U.S.C. § 1982], enacted before the Fourteenth Amendment but vindicated by it, the states must accord to all citizens the right to take and hold real property. The only basis for this discrimination against an American citizen, moreover, was the fact that his father was Japanese and not American, Russian, Chinese, or English. But for that fact alone, Fred Oyama, now a little over a year from majority, would be the undisputed owner of the eight acres in question.

There remains the question of whether discrimination between citizens on the basis of their racial descent, as revealed in this case, is justifiable. Here we start with the proposition that only the most exceptional circumstances can excuse discrimination on that basis in the face of the equal protection clause and a federal statute giving all citizens the right to own land. In Hirabayashi v. United States [1943] this Court sustained a war measure which involved restrictions against citizens of Japanese descent. But the Court recognized that, as a general rule, ‘Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.’

The only justification urged upon us by the State is that the discrimination is necessary to prevent evasion of the Alien Land Law’s prohibition against the ownership of agricultural land by ineligible aliens. This reasoning presupposes the validity of that prohibition, a premise which we deem it unnecessary and therefore inappropriate to reexamine in this case. But assuming, for purposes of argument only, that the basic prohibition is constitutional, it does not follow that there is no constitutional limit to the means which may be used to enforce it. In the light most favorable to the State, this case presents a conflict between the State’s right to formulate a policy of landholding within its bounds and the right of American citizens to own land anywhere in the United States. When these two rights clash, the rights of a citizen may not be subordinated merely because of his father’s country of origin.

Since the view we take of petitioners’ first contention requires reversal of the decision below, we do not reach their other contentions: that the Alien Land Law denies ineligible aliens the equal protection of the laws, and that failure to apply any limitations period to escheat actions under that law takes property without due process of law.

Reversed.

Mr. Justice BLACK, with whom Mr. Justice DOUGLAS agrees, concurring.

I concur in the Court’s judgment and its opinion. But I should prefer to reverse the judgment on the broader grounds that the basic provisions of the California Alien Land Law violate the equal protection clause of the Fourteenth Amendment and conflict with federal laws and treaties governing the immigration of aliens and their rights after arrival in this country. The California law in actual effect singles out aliens of Japanese ancestry, requires the escheat of any real estate they own, and its language is broad enough to make it a criminal offense, punishable by imprisonment up to ten years, for them to acquire, enjoy, use, possess, cultivate, occupy, or transfer real property. It would therefore appear to be a crime for an alien of Japanese ancestry to own a home in California, at least if the land around it is suitable for cultivation. This is true although the statute does not name the Japanese as such, and although its terms also apply to a comparatively small number of aliens from other countries. That the effect and purpose of the law is to discriminate against Japanese because they are Japanese is too plain to call for more than a statement of that well-known fact

Mr. Justice MURPHY, with whom Mr. Justice RUTLEDGE joins, concurring.

To me the controlling issue in this case is whether the California Alien Land Law on its face is consistent with the Constitution of the United States. Can a state prohibit all aliens ineligible for American citizenship from acquiring, owning, occupying, enjoying, leasing or transferring agricultural land? Does such a prohibition square with the language of the Fourteenth Amendment that no state shall ‘deny to any person within its jurisdiction the equal protection of the laws’?

The negative answer to those queries is dictated by the uncompromising opposition of the Constitution to racism, whatever cloak or disguise it may assume. The California statute in question, as I view it, is nothing more than an outright racial discrimination. As such, it deserves constitutional condemnation. And since the very core of the statute is so defective, I consider it necessary to give voice to that fact even though I join in the opinion of the Court

The California Alien Land Law was spawned of the great anti-Oriental virus which, at an early date, infected many persons in that state. The history of this anti-Oriental agitation is not one that does credit to a nation that prides itself, at least historically, on being the friendly haven of the tired and the oppressed of other lands. Beginning in 1850, with the arrival of substantial numbers of Chinese immigrants, racial prejudices and discriminations began to mount. Much of the opposition to these Chinese came from trade unionists, who feared economic competition, and from politicians, who sought union support. Other groups also shared in this opposition. Various laws and ordinances were enacted for the purpose of discouraging the immigrants and dramatizing the native dissatisfaction. Individual Chinese were subjected to many acts of violence. Eventually, Congress responded to this popular agitation and adopted Chinese exclusion laws.

It was not until 1900 that Japanese began to arrive in California in large numbers. By that time the repressive measures directed at the Chinese had achieved much of their desired effect; the Chinese population had materially decreased and the antipathy of the Americans was on the decline. But the arrival of the Japanese fanned anew the flames of anti-Oriental prejudice. History then began to repeat itself. White workers resented the new influx, a resentment which readily lent itself to political exploitation.

The more basic purpose of the statute was to irritate the Japanese, to make economic life in California as uncomfortable and unprofitable for them as legally possible. It was thus but a step in the long campaign to discourage the Japanese from entering California and to drive out those who were already there. The Supreme Court of California admitted as much in its statement that the Alien Land Law was framed so as ‘to discharge the coming of Japanese into this state.’ Estate of Tetsubumi Yano, 188 Cal. 645, 658, 206 P. 995, 1001 [1922]. Even more candid was the declaration in 1913 by Ulysses S. Webb, one of the authors of the law and an Attorney General of California. He stated: ‘The fundamental basis of all legislation upon this subject, State and Federal, has been, and is, race undesirability.”

The Alien Land Law, in short, was designed to effectuate a purely racial discrimination, to prohibit a Japanese alien from owning or using agricultural land solely because he is a Japanese alien. It is rooted deeply in racial, economic and social antagonisms. The question confronting us is whether such a statute, viewed against the background of racism, can mount the hurdle of the equal protection clause of the Fourteenth Amendment. Can a state disregard in this manner the historic ideal that those within the borders of this nation are not to be denied rights and privileges because they are of a particular race? I say that it cannot.

Such is the nature of the group to whom California would deny the right to own and occupy agricultural land. These elderly individuals, who have resided in this country for at least twenty-three years and who are constantly shrinking in number, are said to constitute a menace, a ‘yellow peril,’ to the welfare of California. They are said to be encroaching on the agricultural interests of American citizens. They are said to threaten to take over all the rich farm land of California. They are said to be so efficient that Americans cannot compete with them. They are said to be so disloyal and so undesirous of working for the welfare of the state that they must be denied the right to earn a living by farming. The mere statement of these contentions in the context of the actual situation is enough to demonstrate their shallowness and unreality. The existence of a few thousand aging residents, possessing no racial characteristic dangerous to the legitimate interests of California, can hardly justify a racial discrimination of the type here involved.

The success thus achieved through diligence and efficiency [at truck farming], however, does not justify prohibiting the Japanese from owning or using farm lands. Free competition and the survival of the fittest are supposedly vital elements in the American economic structure. And those who are injured by the fair operation of such elements can make no legitimate objection. It would indeed be strange if efficiency in agricultural production were to be considered a rational basis for denying one the right to engage in that production. Certainly from a constitutional standpoint, superiority in efficiency and productivity has never been thought to justify discrimination.

Hence the basic vice, the constitutional infirmity, of the Alien Land Law is that its discrimination rests upon an unreal racial foundation. It assumes that there is some racial characteristic, common to all Japanese aliens that makes them unfit to own or use agricultural land in California. There is no such characteristic. None has even been suggested. The arguments in support of the statute make no attempt whatever to discover any true racial factor. They merely represent social and economic antagonisms which have been translated into false racial terms. As such, they cannot form the rationalization necessary to conform the statute to the requirements of the equal protection clause of the Fourteenth Amendment. Accordingly, I believe that the prior decisions of this Court giving sanction to this attempt to legalize racism should be overruled.

 

Takahashi v. Fish and Game Commn., 334 U.S. 410 (1948)

Mr. Justice BLACK delivered the opinion of the Court.

The respondent, Torao Takahashi, born in Japan, came to this country and became a resident of California in 1907. Federal laws, based on distinctions of ‘color and race,’ have permitted Japanese and certain other nonwhite racial groups to enter and reside in the country, but have made them ineligible for United States citizenship.1 The question presented is whether California can, consistently with the Federal Constitution and laws passed pursuant to it, use this federally created racial ineligibility for citizenship as a basis for barring Takahashi from earning his living as a commercial fisherman in the ocean waters off the coast of California.

California now urges, and the State Supreme Court held, that the California fishing provision here challenged falls within the rationale of the ‘special public interest’ cases distinguished in the Truax opinion [Truax v. Raich (U.S. 1915)], and thus that the state’s ban upon commercial fishing by aliens ineligible to citizenship is valid. The contention is this: California owns the fish within three miles of its coast as a trustee for all California citizens as distinguished from its noncitizen inhabitants; as such trustee-owner, it has complete power to bar any or all aliens from fishing in the three-mile belt as a means of conserving the supply of fish; since migratory fish caught while swimming in the three-mile belt are indistinguishable from those caught while swimming in the adjacent high seas, the State, in order to enforce its three-mile control, can also regulate the catching and delivery to its coast of fish caught beyond the three mile belt.

It does not follow, as California seems to argue, that because the United States regulates immigration and naturalization in part on the basis of race and color classifications, a state can adopt one or more of the same classifications to prevent lawfully admitted aliens within its borders from earning a living in the same way that other state inhabitants earn their living. The Federal Government has broad constitutional powers in determining what aliens shall be admitted to the United States, the period they may remain, regulation of their conduct before naturalization, and the terms and conditions of their naturalization. Under the Constitution the states are granted no such powers; they can neither add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states. State laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States conflict with this constitutionally derived federal power to regulate immigration, and have accordingly been held invalid.6

Moreover, Congress, in the enactment of a comprehensive legislative plan for the nation-wide control and regulation of immigration and naturalization, has broadly provided: ‘All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.’

The protection of this section has been held to extend to aliens as well as to citizens.7 Consequently the section and the Fourteenth Amendment on which it rests in part protect ‘all persons’ against state legislation bearing unequally upon them either because of alienage or color. The Fourteenth Amendment and the laws adopted under its authority thus embody a general policy that all persons lawfully in this country shall abide ‘in any state’ on an equality of legal privileges with all citizens under non-discriminatory laws.

All of the foregoing emphasizes the tenuousness of the state’s claim that it has power to single out and ban its lawful alien inhabitants, and particularly certain racial and color groups within this class of inhabitants, from following a vocation simply because Congress has put some such groups in special classifications in exercise of its broad and wholly distinguishable powers over immigration and naturalization. The state’s law here cannot be supported in the employment of this legislative authority because of policies adopted by Congress in the exercise of its power to treat separately and differently with aliens from countries composed of peoples of many diverse cultures, races, and colors. For these reasons the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits.

This leaves for consideration the argument that this law should be upheld on authority of those cases which have sustained state laws barring aliens ineligible to citizenship from land ownership 8 Assuming the continued validity of those cases [citing Oyama v. Cal. (U.S. 1948)],9 we think they could not in any event be controlling here. They rested solely upon the power of states to control the devolution and ownership of land within their borders, a power long exercised and supported on reasons peculiar to real property. They cannot be extended to cover this case.

The judgment is reversed and remanded for proceedings not inconsistent with this opinion.

Reversed.

Mr. Justice MURPHY, with whom Mr. Justice RUTLEDGE agrees, concurring.

The opinion of the Court, in which I join, adequately expresses my views as to all but one important aspect of this case. That aspect relates to the fact that sec. 990 of the California Fish and Game Code, barring those ineligible to citizenship from securing commercial fishing licenses, is the direct outgrowth of antagonism toward persons of Japanese ancestry. We should not blink at the fact that sec. 990, as now written, is a discriminatory piece of legislation having no relation whatever to any constitutionally cognizable interest of California. It was drawn against a background of racial and economic tension. It is directed in spirit and in effect solely against aliens of Japanese birth. It denies them commercial fishing rights not because they threaten the success of any conservation program, not because their fishing activities constitute a clear and present danger to the welfare of California or of the nation, but only because they are of Japanese stock, a stock which has had the misfortune to arouse antagonism among certain powerful interests. We need but unbutton he seemingly innocent words of sec. 990 to discover beneath them the very negation of all the ideals of the equal protection clause. No more is necessary to warrant a reversal of the judgment below.

 

Fujii v. State (1952), 38 Cal.2d 718

Fujii v. State (1952), 38 Cal.2d 718, 242 P.2d 617

GIBSON, Chief Justice.

Plaintiff, an alien Japanese who is ineligible to citizenship under our naturalization laws, appeals from a judgment declaring that certain land purchased by him in 1948 had escheated to the state. There is no treaty between this county and Japan which confers upon plaintiff the right to own land, and the sole question presented on this appeal is the validity of the California alien land law.

Fourteenth Amendment of the Federal Constitution

The next question is whether the alien land law violates the due process and equal protection clauses of the Fourteenth Amendment. Plaintiff asserts, first, that the statutory classification of aliens on the basis of eligibility to citizenship is arbitrary for the reason that discrimination against an ineligible alien bears no reasonable relationship to promotion of the safety and welfare of the state. He points out that the land law distinguishes not between citizens and aliens, but between classes of aliens, and that persons eligible to citizenship are given all the rights of citizens regardless of whether they desire or intend to become naturalized. Secondly, he contends that the effect of the statute, as well as its purpose, is to discriminate against aliens solely on the basis of race and that such discrimination is arbitrary and unreasonable

The issue of the constitutionality of the alien land law is thus again presented to this court,] and we are met at the outset with the contention that a reexamination of the question is foreclosed by decisions of the United States Supreme Court rendered in 1923 upholding the statute, Porterfield v. Webb. This objection is a serious one, and we have rejected it only after the most careful deliberation.

There can be no question that the rights to acquire, enjoy, own and dispose of property are ‘among the civil rights intended to be protected from discriminatory state action by the Fourteenth Amendment,’ and that the power of a state to regulate the use and ownership of land must be exercised subject to the controls and limitations of that amendment.

The California act, in the absence of treaty, withholds all interests in real property from aliens who are ineligible to citizenship under federal naturalization laws, and the Nationality Code limits the right of naturalization to certain designated races or nationalities, excluding Japanese and a few racial groups comparatively small in numbers. Congress, however, at least prior to 1924,[ saw fit to permit aliens who are ineligible for citizenship to enter and reside in the United States despite the fact that they could not become naturalized, and such aliens are entitled to the same protection as citizens from arbitrary discrimination. Accordingly, the statute cannot be sustained unless it can be shown that the public interest requires limitation of their rights to acquire and enjoy interests in real property.

By its terms the land law classifies persons on the basis of eligibility to citizenship, but in fact it classifies on the basis of race or nationality. This is a necessary consequence of the use of the express racial qualifications found in the federal code. Although Japanese are not singled out by name for discriminatory treatment in the land law, the reference therein to federal standards for naturalization which exclude Japanese operates automatically to bring about that result. As a general rule a legislative classification will be sustained if it is reasonable and has a substantial relation to a legitimate object, and the existence of any reasonably conceivable state of facts sufficient to uphold the legislation will be presumed. Where, however, as here, the classification is on the basis of race, it is ‘immediately suspect’ and will be subjected ‘to the most rigid scrutiny.’

The clear import of the statements quoted above from the Korematsu, Oyama and Perez cases is that the presumption of validity is greatly narrowed in scope, if not entirely dispelled, whenever it is shown, as here, that legislation actually discriminates against certain persons because of their race or nationality. This view, now established by the latest declarations of the United States Supreme Court, is irreconcilable with the approach previously taken by that court in the Porterfield case in determining whether there was a reasonable relation between the purposes sought to be accomplished, and the classification adopted, in the California alien land law.

The opinion of Justice Butler in the Porterfield case overlooked the fact that the classification resulted in racial discrimination, and it did not consider the validity of the California law in the light of the present rule that restrictive measures which curtail the rights of a racial group must be carefully scrutinized. In the foregoing discussion, we have assumed, as asserted by the attorney general, that the purpose of the alien land law is to limit the use and ownership of land to those who are loyal to this country and have an interest in the welfare of this state. It is generally recognized, however, that the real purpose of the legislation was the elimination of competition by alien Japanese in farming California land.

It is well established that all aliens lawfully in this country have a right ‘to work for a living in the common occupations of the community’. Much emphasis has been placed in argument on an asserted distinction between the right to engage in common callings and the right to own or use real property, but an examination of the authorities shows that the distinction has its roots and justification solely in the ancient common law system of feudal tenure, and it has no rational basis today. The truth is that the right to earn a living in many occupations is inseparably connected with the use and enjoyment of land.

In the light of the foregoing discussion, we have concluded that the constitutional theories upon which the Porterfield case was based are today without support and must be abandoned. The California alien land law is obviously designed and administered as an instrument for effectuating racial discrimination, and the most searching examination discloses no circumstances justifying classification on that basis. There is nothing to indicate that those alien residents who are racially ineligible for citizenship possess characteristics which are dangerous to the legitimate interests of the state, or that they, as a class, might use the land for purposes injurious to public morals, safety or welfare. Accordingly, we hold that the alien land law is invalid as in violation of the Fourteenth Amendment.

The judgment is reversed.

 

Rose Cuison Villazor, “Rediscovering Oyama v. California: At the Intersection of Property, Race, and Citizenship”

Rose Cuison Villazor, “Rediscovering Oyama v. California:

At the Intersection of Property, Race, and Citizenship,” 87 Wash. U. L. Rev. 979 (2010)

Oyama was a landmark case in the history of equal protection and property rights in the United States.21 Decided four years after Korematsu v. United States,22 which upheld the constitutionality of E.O. 9066,23 Oyama helped to turn the tide against ongoing public discrimination directed at the recently interned Japanese families. Specifically, although California enacted the Alien Land Law in the early 1900s, it did not significantly enforce it until well into the internment of Japanese and after their release from concentration camps.24 This more vigorous enforcement of the law demonstrated the state’s ongoing quest to expel Japanese from California through the use of a state property law. Thus, Oyama’s protection of a Japanese American’s right to own property returned some measure of security against California’s relentless efforts to exclude the Japanese community. Regrettably, Oyama did not address the question of whether the Alien Land Law violated the equal rights of noncitizen Japanese. In so doing, it left open the authority of state and local governments to continue to use their police powers to regulate noncitizens’ access to property.25 Nevertheless, Oyama stalled the state’s continued discrimination against Japanese landholding.26 Importantly, it provided support for the striking down of California’s Alien Land Law a few years later.27

Property law has long been understood to regulate relations among persons.35 When viewed from the lens of U.S. racial history, this conception of property law would be incomplete without recognizing its critical role in the political, economic, and social ordering of people of color’s prescribed place in society. For many who have been “raced,”36 property law long constituted an important tool in their historical subordination,37 especially for those African Americans who were themselves considered property.38 Cases such as Buchanan v. Warley39 and Shelley v. Kraemer40 illustrate starkly the ways in which the promise of equality in property rights have long been denied and the ways in which the Supreme Court has sought to remove unconstitutional barriers to the realization of equal rights to own, enjoy, use, and transfer property.41

Similar to many immigrants who have been cast as racially inferior,43 Japanese encountered discrimination in various aspects of their life. On the federal level, numerous pieces of legislation plus executive actions made it difficult for Japanese to gain entry into this country.44 In California, state laws hindered them from educating their children45 and, as this Article examines, acquiring property.46 Indeed, many Californians saw restrictions in property rights as a crucial method of deterring Japanese from coming to the state. In proposing the bill that ultimately became California’s Alien Land Law of 1913,47 the state attorney general stated: ‘It is unimportant and foreign to the question, whether a particular race is inferior. The simple and single question is, is the race desirable. . . . It [the law] seeks to limit their presence by curtailing their privileges which they may enjoy here; for they will not come in large numbers and long abide with us if they may not acquire land.’

Critically, white farmers specifically wanted to prevent the “Issei” or first-generation Japanese immigrants from owning land.49 The law prohibited “aliens ineligible for American citizenship” from acquiring, owning, occupying, or leasing lands for more than three years or transferring agricultural land.50 Since Japanese were not able to naturalize under the law, the phrase “aliens ineligible to citizenship” thus constituted a euphemism employed to cover up the law’s underlying discriminatory intent.51

The Alien Land Law provided that land acquired by persons who were ineligible for citizenship would escheat, or transfer to the state, after the government proved that the land was in fact bought to evade the law.52 Notably, all escheat actions undertaken by the state, albeit not a substantial number, were against Japanese, evidencing the Alien Land Law’s intent to drive Japanese away from California.53

Despite the restriction on real property ownership, Japanese landholding increased.54 Legal loopholes in the law facilitated circumvention of its proscriptions and state authorities were disinclined to prosecute.55 In 1920, however, a ballot initiative intended to strengthen the law overwhelmingly passed in California.56 The 1920 voter initiative exemplifies the ways in which the initiative process can have a particularly subordinating effect on noncitizens because of their inability to participate in the election process.57 The law proscribed “aliens ineligible to citizenship” from being placed under guardianships or trusteeships,58 prevented all agricultural lands from being leased,59 and prohibited corporations owned by a majority of persons who were ineligible to be naturalized from owning real property,60 all of which had previously enabled Japanese noncitizens to acquire property.61 The enhanced Alien Land Law led to the decrease of Japanese ownership of lands.62

In California, as well as other states, the formal restriction on Japanese landholding did not necessarily halt all land transactions that involved Japanese buyers. Private sale of land continued78 and the state minimally enforced the law. In fact, between 1913 and 1942, the state undertook only fourteen escheat actions,79 illuminating that both private and public actors openly ignored the law. This is not to say, of course, that the Alien Land Law did not impact the nature of one’s ownership. To the contrary, the law had the practical effect of putting a cloud on the title of property owned by Japanese Americans. In particular, the Alien Land Law turned property that would normally be held in fee simple into one that became subject to an escheat action by the state.80 Moreover, Japanese Americans had the burden of disproving the presumption that the purchase of the property was not done in violation of the law.81

After the bombing of Pearl Harbor and the evacuation of Japanese from California and other states, California sought to more forcefully enforce the Alien Land Law. As a result of legislative initiative to fund escheat suits, the Attorney General filed more escheat actions than before 1942. Specifically, five years after 1942, it undertook fifty-nine escheat actions.82 Importantly, all these actions — similar to the ones prior to 1942 — involved lands owned by Japanese.83 Many of these escheat actions were filed at the behest of white farmers who argued for more vigorous enforcement of the law.84 This is a crucial point because it demonstrates a methodical public and private approach to rid the state of Japanese that the internment ultimately failed to do. Specifically, as the facts of the case illustrate, the state utilized property law to ensure the exclusion of Japanese from its borders.

In 1934, Kajiro Oyama purchased six acres of agricultural land and placed the title of the land in his son Fred’s name.85 At the time, Fred was only six years-old.86 Similar to other ineligible alien parents who bought property for their children, Kajiro petitioned a local court to become Fred’s guardian in order for him to have legal authority to manage the property. The court granted his guardianship application.87 When Fred was nine-years-old, his father purchased another two acres of land in his name.88

Buying agricultural property for young children may seem odd to many, but for Japanese families like the Oyamas, it was the only way that they could own land. Notably, such purchases were far from clandestine. Kajiro’s purchases displayed the public manner with which some land transactions were made in the 1930s. Both land transactions were not only known but approved by the court. Kajiro’s petition for guardianship after acquiring six acres in 1934 demonstrated that the local court understood that Fred’s “ownership” was a legal fiction. Kajiro was the de facto owner, even if the law did not recognize him as the legal owner. It also shows that the court acquiesced to the purchase by approving the guardianship petition.89 Moreover, as noted previously, the Alien Land Law did not prevent all Japanese from acquiring property. Kajiro Oyama, for example, purchased both properties well past the enactment of the 1920 law. The subsequent purchase occurred in 1937 and was similarly placed under Fred’s name. Like the earlier transaction, this one was noted in public newspapers and hearings.90 Thus, despite the apparent violations of the Alien Land Law, local government officials were not only aware, but condoned, the private transactions.91

Eventually, the Oyama property became subject to escheat proceedings. In August of 1944, the state petitioned to acquire the properties on the ground that the purchases were done with intent to violate and evade the Alien Land Law.92 By this time, E.O. 9066 had gone into effect and the Oyamas had been residing in Utah for about two years.93 Although Fred had title to the land, both he and Kajiro were named defendants to the escheat action.94

Through their counsel, both defendants argued against the constitutionality of the law. First, they argued that the Alien Land Law deprived Fred Oyama of his right as an American citizen to equal protection of the law.95 Second, they contended that the law also denied Kajiro, despite being a noncitizen, of the equal protection of the law.96 Finally, they asserted violation of the Due Process Clause on the grounds that the state had brought an action to take property after the expiration of the statute of limitations.97

The California Superior Court, however, agreed with the state and eventually upheld the validity of the relevant provisions of Alien Land Law.98 Specifically, it found that Kajiro had the beneficial use of the land, and that the conveyances were “subterfuges effected with intent to prevent, evade or avoid escheat.”99

The California Supreme Court subsequently affirmed the lower court.108 It held, among other things, that the state could “constitutionally exclude ineligible aliens from any interest in agricultural land.”109 As to Fred’s property rights, the court did not find any constitutional violation, contending that the property never vested in him and had passed directly to the state.110

The Oyamas and their organizational supporters, particularly the Japanese American Citizens League, then decided to launch another challenge to California’s Alien Land Law by petitioning for certification by the U.S. Supreme Court.111 Although the Supreme Court had previously upheld the constitutionality of the Washington and California alien land laws decades before, they hoped to extend the new reasoning that the Supreme Court had developed in recent cases involving Japanese Americans to the area of property ownership. Ironically, both Korematsu and Hirabayashi v. United States,112 which upheld the validity of the military’s exclusion and curfew orders against Japanese,113 led to a more restrictive analysis of classifications that are based on race.114 Because of the correlation between ancestry and property restrictions, the Alien Land Law’s constitutionality ultimately went before the Supreme Court again.

[Discussion of Oyama opinions omitted.]

In sum, the Supreme Court held that the State of California’s attempted taking of Fred Oyama’s property by enforcing the Alien Land Law against him because of his father’s ancestry constituted a form of race discrimination. In so doing, it immediately led to the end of the enforcement of the Alien Land Law143 and became part of a historical shift in the treatment of Japanese in California. Specifically, several months after the Supreme Court decided Oyama, voters rejected a proposed initiative that would have amended the Alien Land Law.144 Oyama also led to the invalidation of the alien land law in Oregon the following year.145 Eventually, the California Supreme Court declared the Alien Land Law unconstitutional in Sei Fujii v. California.146

Beyond the Oyama opinion’s invalidation of property barriers that denied Japanese Americans their right to equal access to property, Oyama also more broadly contributed to nullifying discriminatory property laws that similarly precluded other people of color, particularly African Americans, from owning property. Specifically, four months after the Supreme Court decided Oyama, the Court handed down its decision in Shelley v. Kraemer.147 In Shelley, the Supreme Court relied on Oyama to invalidate private racial covenants that prohibited the occupancy of property by “any person not of the Caucasian race.”148 The Court explained that it had recently held in Oyama that state laws that “denied equal enjoyment of property rights to a designated class of citizens of specified race and ancestry” constituted a violation of the Equal Protection Clause.149 Oyama thus played a central role in ensuring that private discrimination would not find legal manifestation through judicial enforcement of these racial covenants.150

In short, Oyama affirmed the constitutional and statutory guarantees of equal access to property regardless of race. California’s Alien Land Law demonstrated the potent way that race, property law, immigration, and citizenship operated to subordinate persons on account of their ancestral and racial background. Oyama thus generally served to restore the constitutional mandate of equality in property law and specifically halted the enduring discrimination faced by Japanese families even after they were released from their internment. More broadly, it provided important precedent in civil rights law.151

The Oyama Court’s protection of the property rights of U.S. citizens of Japanese ancestry thus constituted the affirmation of formal and substantive right of equal citizenship that had been denied to Japanese Americans by California. As the Supreme Court aptly explained, where there is a “conflict between the State’s right to formulate a policy of landholding within its bounds and the right of American citizens to own land anywhere in the United States. . . . The rights of a citizen may not be subordinated merely because of his father’s country of origin.”168 By invalidating the Alien Land Law as applied to them, Oyama removed the mask that covered Japanese Americans’ citizenship and marked them as “foreign” U.S. citizens. Indeed, as at least one scholar noted, the Oyama opinion was arguably the Supreme Court’s way of atoning for its mistake in Korematsu.

Currently, an estimated eleven million undocumented immigrants live in the United States.277 Despite calls for legislation that will not only determine the status of undocumented immigrants but also discourage the migration of new unauthorized noncitizens through stricter border protection, Congress has failed to pass comprehensive immigration reform.278 Frustrated by Congress’s legislative inaction, several cities enacted laws that sought to limit the influx of undocumented immigrants to their municipalities. In 2006 alone, states and local governments adopted more than 550 state laws and eighty local ordinances in an ad hoc attempt to limit illegal immigration.279 Initiated by San Bernardino, California and popularized by Hazleton, Pennsylvania,280 some of these ordinances have been entitled “Illegal Immigrant Relief Acts” (IIRAs). Expressly promulgated to discourage undocumented immigrants from residing in the towns that enacted them, at least some IIRAs also sought to prevent the ability of undocumented immigrants to gain employment within the towns.281 At large, these IIRAs and other local housing restrictions are part of a larger trend today of government actors limiting individual property rights in order to enforce immigration law. More narrowly, these laws demonstrate the contemporary intersection of property and immigration law.

Notably, closer examination of these local housing ordinances illustrates their striking similarities to the anti-Japanese alien land laws. First, local towns, and increasingly, state governments, are using a “neutral” immigration language as the basis for denying property rights.282 Second, legislative history and surrounding circumstances demonstrate that the IIRAs target a racial group, in this case, mainly Latino immigrants.283

In the end, Oyama prescribes two possible doctrinal moves to correct the inequities that result from the IIRAs. The first is the use of 42 U.S.C. Section 1982 to challenge the IIRAs in much the same way as Fred Oyama successfully did sixty years ago.379 In particular, U.S. citizen children of undocumented immigrants could arguably use Section 1982 to contend that they have been deprived of their equal access to property as white citizens. The fact that the property interest at stake here — lease of a resident — and not ownership in fee simple absolute of land should not diminish in any way the citizen’s right to equal treatment in property law.380 Today, as scholars and policy makers have explained, one’s choice of residence directly relates to decisions about where to send her children to school.381 Thus, the ability of a U.S. citizen’s parent to rent an apartment or a house in turn confers the child with the necessary residency requirement to attend public school. Indeed, many families strive to live in neighborhoods that are zoned in good school districts.382 Oyama’s protection of the property rights of citizens might thus be applied in the particular context of ensuring that a U.S. citizen Latino child is given equal access to a home and an education in the same way that other citizens are.383

Even more, courts could also look to Oyama, specifically the concurring opinion of Justice Murphy, to do something that the Supreme Court failed to do. Specifically, courts could consider ways of extending equal protection to noncitizens seeking access to property.384 Indeed, Justice Murphy’s view of the general applicability of the Equal Protection Clause to persons and not citizens would further support providing protection to noncitizens who are undocumented immigrants and seek equal access to property. It could even be considered the logical extension of Plyler v. Doe, which held that the right to an education may not be denied to a child because of her immigration status.385 If the restriction on rental leases based on undocumented status precludes an immigrant child from obtaining an education, the restriction could be interpreted to run afoul of Plyler.386 In fact, in both Oyama and Plyler, the Supreme Court expressed the view of the unfairness of punishing children for the mistakes that their parents had made.

 

PROP 187 (1994)

SECTION 1. Findings and Declaration.

The People of California find and declare as follows:

That they have suffered and are suffering economic hardship caused by the presence of illegal aliens in this state.

That they have suffered and are suffering personal injury and damage by the criminal conduct of illegal aliens in this state.

That they have a right to the protection of their government from any person or persons entering this country unlawfully.

Therefore, the People of California declare their intention to provide for cooperation between their agencies of state and local government with the federal government, and to establish a system of required notification by and between such agencies to prevent illegal aliens in the United States from receiving benefits or public services in the State of California.

[Sections dealing with forgery of documents omitted.]

SECTION 4. Law Enforcement Cooperation with INS.

Section 834b is added to the Penal Code, to read:

Section 834b. (a) Every law enforcement agency in California shall fully cooperate with the United States Immigration and Naturalization Service regarding any person who is arrested if he or she is suspected of being present in the United States in violation of federal immigration laws.

(b) With respect to any such person who is arrested, and suspected of being present in the United States in violation of federal immigration laws, every law enforcement agency shall do the following:

(1). Attempt to verify the legal status of such person as a citizen of the United States, an alien lawfully admitted as a permanent resident, an alien lawfully admitted for a temporary period of time or as an alien who is present in the United States in violation of immigration laws. The verification process may include, but shall not be limited to, questioning the person regarding his or her date and place of birth and entry into the United States, and demanding documentation to indicate his or her legal status.

(2). Notify the person of his or her apparent status as an alien who is present in the United States in violation of federal immigration laws and inform him or her that, apart from any criminal justice precedings [sic], he or she must either obtain legal status or leave the United States.

(3). Notify the Attorney General of California and the United States Immigration and Naturalization Service of the apparent illegal status and provide any additional information that may be requested by any other public entity.

(c) Any legislative, administrative, or other action by a city, county, or other legally authorized local governmental entity with jurisdictional boundaries, or by a law enforcement agency, to prevent or limit the cooperation required by subdivision (a) is expressly prohibited.

SECTION 5. Exclusion of Illegal Aliens from Public Social Services.

Section 10001.5. is added to the Welfare and Institutions Code, to read:

Section 10001.5. (a) In order to carry out the intention of the People of California that only citizens of the United States and aliens lawfully admitted to the United States may receive the benefits of public social services and to ensure that all persons employed in the providing of those services shall diligently protect public funds from misuse, the provisions of this section are adopted.

(b) A person shall not receive any public social services to which he or she may be otherwise entitled until the legal status of that person has been verified as one of the following:

(1). A citizen of the United States.

(2). An alien lawfully admitted as a permanent resident.

(3). An alien lawfully admitted for a temporary period of time.

(c) If any public entity in this state to whom a person has applied for public social services determines or reasonably suspects, based upon the information provided to it, that the person is an alien in the United States in violation of federal law, the following procedures shall be followed by the public entity:

(1). The entity shall not provide the person with benefits or services.

(2). The entity shall, in writing, notify the person of his or her apparent illegal immigration status, and that the person must either obtain legal status or leave the United States.

(3). The entity shall also notify the State Director of Social Services, the Attorney General of California and the United States Immigration and Naturalization Service of the apparent illegal status, and shall provide any additional information that may be requested by any other public entity.

SECTION 6. Exclusion of Illegal Aliens from Publicly Funded Health Care.

Chapter 1.3 (commencing with Section 130) is added to Part 1 of Division 1 of the Health and Safety Code, to read:

CHAPTER 1.3. PUBLICLY–FUNDED HEALTH CARE SERVICES

Section 130. (a) In order to carry out the intention of the People of California that, excepting emergency medical care as required by federal law, only citizens of the United States and aliens lawfully admitted to the United States may receive the benefits of publicly-funded health care, and to ensure that all persons employed in the providing of those services shall diligently protect public funds from misuse, the provisions of this section are adopted.

(b) A person shall not receive any health care services from a publicly-funded health care facility, to which he or she is otherwise entitled until the legal status of that person has been verified as one of the following:

(1). A citizen of the United States.

(2). An alien lawfully admitted as a permanent resident.

(3). An alien lawfully admitted for a temporary period of time.

(c) If any publicly-funded health care facility in this state from whom a person seeks health care services, other than emergency medical care as required by federal law, determines or reasonably suspects, based upon the information provided to it, that the person is an alien in the United States in violation of federal law, the following procedures shall be followed by the facility:

(1). The facility shall not provide the person with services.

(2). The facility shall, in writing, notify the person of his or her apparent illegal immigration status, and that the person must either obtain legal status or leave the United States.

(3). The facility shall also notify the State Director of Social Services, the Attorney General of California and the United States Immigration and Naturalization Service of the apparent illegal status, and shall provide any additional information that may be requested by any other public entity.

(d) For purposes of this section “publicly-funded health care facility” shall be defined as specified in Section 1200 and 1250 of the Health and Safety Code as of January 1, 1993.

SECTION 7. Exclusion of Illegal Aliens From Public Elementary and Secondary Schools.

Section 48215. is added to the Education Code to read:

Section 48215. (a) No public elementary or secondary school shall admit, or permit the attendance of, any child who is not a citizen of the United States, an alien lawfully admitted as a permanent resident, or a person who is otherwise authorized under federal law to be present in the United States.

(b) Commencing January 1, 1995, each school district shall verify the legal status of each child enrolling in the school district for the first time in order to ensure the enrollment or attendance only of citizens, aliens lawfully admitted as permanent residents, or persons who are otherwise authorized to be present in the United States.

(c) By January 1, 1996, each school district shall have verified the legal status of each child already enrolled and in attendance in the school district in order to ensure the enrollment or attendance only of citizens, aliens lawfully admitted as permanent residents, or persons who are otherwise authorized under federal law to be present in the United States.

(d) By January 1, 1996, each school district shall also have verified the legal status of each parent or guardian of each child referred to in subdivision (b) and (c) above, to determine whether such parent or guardian is one of the following:

(1). A citizen of the United States.

(2). An alien lawfully admitted as a permanent resident.

(3). An alien admitted lawfully for a temporary period of time.

(e) Each school district shall provide information to the State Superintendent of Public Instruction, the Attorney General of California and the United States Immigration and Naturalization Service regarding any enrollee or pupil, or parent or guardian, attending a public elementary or secondary school in the school district determined or reasonably suspected to be in violation of federal immigration laws within forty five days after becoming aware of an apparent violation. The notice shall also be provided to the parent or legal guardian of the enrollee or pupil, and shall state that an existing pupil may not continue to attend the school after ninety calendar days from the date of the notice, unless legal status is established.

(f) For each child who cannot establish legal status in the United States, each school district shall continue to provide education for a period of ninety days from the date of the notice. Such ninety day period shall be utilized to accomplish an orderly transition to a school in the child’s country of origin. Each school district shall fully cooperate in this transition effort to ensure that the educational needs of the child are best served for that period of time.

SECTION 8. Exclusion of Illegal Aliens from Public Postsecondary Educational Institutions.

Section 66010.8. is added to the Education Code, to read:

Section 66010.8. (a) No public institution of postsecondary education shall admit, enroll, or permit the attendance of any person who is not a citizen of the United States, an alien lawfully admitted as a permanent resident, in the United States, or a person who is otherwise authorized under federal law to be present in the United States.

(b) Commencing with the first term or semester that begins after January 1, 1995, and at the commencement of each term or semester thereafter, each public postsecondary educational institution shall verify the status of each person enrolled or in attendance at that institution in order to ensure the enrollment or attendance only of United States citizens, aliens lawfully admitted as permanent residents in the United States, and persons who are otherwise authorized under federal law to be present in the United States.

(c) No later than 45 days after the admissions officer of a public postsecondary educational institution becomes aware of the application, enrollment, or attendance of a person determined to be, or who is under reasonable suspicion of being, in the United States in violation of federal immigration laws, that officer shall provide that information to the State Superintendent of Public Instruction, the Attorney General of California and the United States Immigration and Naturalization Service. The information shall also be provided to the applicant, enrollee, or person admitted.

SECTION 10. Amendment and Severability.

The statutory provisions contained in this measure may not be amended by the Legislature except to further its purposes by statute passed in each house by roll call vote entered in the journal, two-thirds of the membership concurring, or by a statute that becomes effective only when approved by the voters.

In the event that any portion of this act or the application thereof to any person or circumstance is held invalid, that invalidity shall not affect any other provision or application of the act, which can be given effect without the invalid provision or application, and to that end the provisions of this act are severable.

 

League of United Latin American Citizens v. Wilson (LULAC I), 908 F.Supp. 755 (C.D. Cal. 1995)

PFAELZER, District Judge.

Proposition 187 is an initiative measure which was submitted to the voters of the State of California in the November 8, 1994 general election. It was passed by a vote of 59% to 41% and became effective the following day. The stated purpose of Proposition 187 is to “provide for cooperation between [the] agencies of state and local government with the federal government, and to establish a system of required notification by and between such agencies to prevent illegal aliens in the United States from receiving benefits or public services in the State of California.” The initiative’s provisions require law enforcement, social services, health care and public education personnel to (i) verify the immigration status of persons with whom they come in contact; (ii) notify certain defined persons of their immigration status; (iii) report those persons to state and federal officials; and (iv) deny those persons social services, health care, and education.

After the initiative was passed, several actions challenging the constitutionality of Proposition 187 were commenced in state and federal courts in California. Ultimately, five actions filed in the United States District Court were consolidated in this Court for purposes of motions, hearings, petitions and trial.

III. Whether Proposition 187 is Preempted under Federal Law

The question of whether provisions of Proposition 187 are preempted by federal law is governed by the [United States] Supreme Court’s decision in De Canas v. Bica, 424 U.S. 351 (1976) (California statute prohibiting an employer from knowingly employing an alien who is not entitled to lawful residence in the United States held not preempted under federal law). In De Canas, the Supreme Court set forth three tests to be used in determining whether a state statute related to immigration is preempted. Pursuant to De Canas, if a statute fails any one of the three tests, it is preempted by federal law.

1) Under the first test, the Court must determine whether a state statute is a “regulation of immigration.” Since the “power to regulate immigration is unquestionably exclusively a federal power,” any state statute which regulates immigration is “constitutionally proscribed.”

2) Under the second test, even if the state law is not an impermissible regulation of immigration, it may still be preempted if there is a showing that it was the “clear and manifest purpose of Congress” to effect a “complete ouster of state power—including state power to promulgate laws not in conflict with federal laws” with respect to the subject matter which the statute attempts to regulate. In other words, under the second test, a statute is preempted where Congress intended to “occupy the field” which the statute attempts to regulate.

3) Under the third test, a state law is preempted if it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Stated differently, a statute is preempted under the third test if it conflicts with federal law making compliance with both state and federal law impossible.

I. Purpose and Effect of Proposition 187

The initiative has a dual purpose and effect. The classification, notification and cooperation/reporting provisions taken together constitute a regulatory scheme designed to deter illegal aliens from entering or remaining in the United States by (1) detecting those persons present in the United States in violation of either state-created criteria for lawful immigration status or federal immigration laws; (2) notifying those persons of their purported unlawful status and ordering them to obtain legal status or leave the country; and (3) maintaining a system of reporting and cooperation between state and federal agencies to effect the removal of those persons. These provisions cannot be read except as a regulatory scheme; and indeed, defendants have not seriously urged any other reading. While the benefits denial provisions also have the purpose of deterring illegal aliens from entering or remaining in the United States, and arguably may be viewed as part of the same regulatory scheme, they have the additional purpose of forbidding the use of public funds to provide social services, health care and education to persons deemed to be present in the United States illegally.

II. Severability of the Initiative

1) In determining the validity of Proposition 187, the Court is mindful of its obligation to uphold the initiative to the fullest extent possible. California law holds that “all presumptions favor the validity of initiative measures and mere doubts as to validity are insufficient.” Legislature v. Eu, 54 Cal.3d 492, 501, 816 P.2d 1309, 1313 (1991). Initiatives “must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears.” A finding that a section, subsection or subpart of Proposition 187 is preempted by federal law does not end the Court’s inquiry with respect to the validity of the initiative. Rather, a finding that any provision is preempted requires the Court to determine whether that provision is severable from the balance of the initiative so that the remainder may take effect. [Judge Pfaelzer concluded that the provisions of the initiative are severable.] Thus, the provisions of Proposition 187 which are preempted must be severed from the initiative.

IV. Conclusion

The California voters’ overwhelming approval of Proposition 187 reflects their justifiable frustration with the federal government’s inability to enforce the immigration laws effectively. No matter how serious the problem may be, however, the authority to regulate immigration belongs exclusively to the federal government and state agencies are not permitted to assume that authority. The State is powerless to enact its own scheme to regulate immigration or to devise immigration regulations which run parallel to or purport to supplement the federal immigration laws.

The classification, notification and cooperation/reporting provisions in sections 4 through 9 of the initiative, taken together, constitute a regulatory scheme (1) to detect persons present in California in violation of state-created categories of lawful immigration status; (2) to notify state and federal officials of their purportedly unlawful status; and (3) to effect their removal from the United States. These provisions create an impermissible state scheme to regulate immigration and are preempted under the first and second De Canas tests. Plaintiffs’ motions for summary judgment are granted with respect to these provisions.

The benefits denial provisions of the initiative — if implemented by state regulations which would require verification of immigration status by reference to federal determinations of status — have only an incidental impact on immigration and thus do not violate the first De Canas test. Nor do those provisions violate the second De Canas test. Plaintiffs have failed to direct the Court to any authority for the proposition that Congress intended to completely oust state authority to legislate in the area of benefits denial. Consequently, the Court must conclude that those provisions are preempted only if their operation conflicts with or impedes the objectives of federal laws.

Section 7’s denial of primary and secondary education conflicts with federal law as announced by the Supreme Court in Plyler v. Doe [457 U.S. 202 (1982) ] and is therefore preempted. Section 8’s denial of postsecondary education does not appear to conflict with any federal law and thus is not preempted. With respect to the benefits denial provisions in sections 5 and 6, to the extent that they deny federally-funded benefits and services, those provisions conflict with federal laws authorizing such benefits and services without reference to immigration status. It is unclear from the showing made whether the existence of such conflicts render sections 5 and 6 wholly preempted or preempted only to the extent that they conflict with federal law. Moreover, the Court may not need to reach that issue, for while it appears that the state could permissibly deny wholly state-funded benefits and services without impeding the objectives of federal law, it is unclear from the record whether any such purely state-funded programs or health care facilities in fact exist. The showing made on these motions is inadequate to permit the Court to resolve the issue of whether the provisions are wholly preempted or whether they are preempted only to a limited extent. For these reasons, plaintiffs’ motions with respect to the denial of benefits provisions in sections 5 and 6 are denied.

 

League of United Latin American Citizens v. Wilson (LULAC II), 997 F.Supp. 1244 (C.D. Cal. 1995)

MEMORANDUM OF LAW RE: REMAINING ISSUES IN CONSOLIDATED CASES

I. BACKGROUND

[Judge Pfaelzer summarized the procedural history of the litigation through 1996, including the results of LULAC I. She noted that despite repeated promises to do so, the state failed to draft regulations implementing the portions of Prop 187 that had not been held invalid in LULAC I.]

On August 22, 1996, the President [Clinton] signed the PRA [Personal Responsibility and Work Opportunity Reconciliation Act of 1994]. The PRA creates a comprehensive statutory scheme for determining aliens’ eligibility for federal, state and local benefits and services. It categorizes all aliens as “qualified” or not “qualified” and then denies public benefits based on that categorization. In the PRA, Congress expressly stated a national policy of restricting the availability of public benefits to aliens.

2. The Application of the Tests in Light of the PRA

a. The PRA does not affect the Court’s prior analysis of the first test.

As the Court determined in its November 20, 1995 Opinion, if the benefits denial provisions are severed from the verification, notification and reporting provisions of Proposition 187, they do not impermissibly regulate immigration because they do not amount to a determination of “who is and who is not ‘lawfully admitted’ in this country” [quoting LULAC I]. The federal government’s exclusive control over immigration is derived from the Constitution and is unaffected by the PRA. The Court’s analysis of the first test is likewise unaffected by the PRA.

b. The benefits denial provisions are preempted because the PRA occupies the field. The intention of Congress to occupy the field of regulation of government benefits to aliens is declared throughout Title IV of the PRA. Whatever the level of government extending the benefits and whatever the source of the funding for the benefits — federal, state or local — they are all included within the expansive reach of the PRA. The new law includes: statements of national policy regarding the denial of public benefits to illegal immigrants (8 U.S.C. § 1601); rules regarding immigrant eligibility for federal, state and local benefits, including definitions of the benefits covered (8 U.S.C. §§ 1611, 1621); a description of state legislative options in the area of immigrant eligibility for state or local benefits (8 U.S.C. § 1621(d)); and a system for verifying immigration status to determine eligibility for benefits and services (8 U.S.C. § 1642). Together, these provisions both demarcate a field of comprehensive federal regulation within which states may not legislate, and define federal objectives with which states may not interfere.

c. The PRA expressly defers to Plyler v. Doe. Section 7 of Proposition 187 denies public elementary and secondary education to any child not “a citizen of the United States, an alien lawfully admitted as a permanent resident, or a person who is otherwise authorized under federal law to be present in the United States.” The Court found section 7 invalid on the ground that in Plyler v. Doe (1982), the Supreme Court held that a state cannot deny basic public education to children based on their immigration status. The PRA provides strong support for this finding. As stated, the PRA is a comprehensive statutory scheme regulating alien eligibility for government benefits. It does not deny public elementary and secondary education to aliens, but it does specifically deal with the subject of basic public education. Section 1643 provides, “Nothing in this chapter may be construed as addressing alien eligibility for a basic public education as determined by the Supreme Court of the United States under Plyler v. Doe. Thus, although basic public education clearly must be classified as a government benefit, just as health care is, the PRA does not purport to deny it to non-qualified aliens. Proposition 187 cannot do that either under the present state of the law.

III. CONCLUSION

After the Court’s November 20, 1995 Opinion [LULAC I], Congress enacted the PRA, a comprehensive statutory scheme regulating alien eligibility for public benefits. The PRA states that it is the immigration policy of the United States to restrict alien access to substantially all public benefits. Further, the PRA ousts state power to legislate in the area of public benefits for aliens. When President Clinton signed the PRA, he effectively ended any further debate about what the states could do in this field. As the Court pointed out in its prior Opinion, California is powerless to enact its own legislative scheme to regulate immigration. It is likewise powerless to enact its own legislative scheme to regulate alien access to public benefits. It can do what the PRA permits, and nothing more. Federal power in these areas was always exclusive and the PRA only serves to reinforce the Court’s prior conclusion that substantially all of the provisions of Proposition 187 are preempted under De Canas v. Bica. Only sections 2, 3 and 10 [dealing with forgery of documents and severability] are enforceable.

 

Daniel HoSang, Racial Propositions

 

the failed Racial Privacy Initiative

Prop 54 (2003)

TEXT OF PROPOSED LAW

This initiative measure is submitted to the people in accordance with the provisions of Section 8 of Article II of the California Constitution.

This initiative measure expressly amends the California Constitution by adding a section thereto; therefore, new provisions proposed to be added are printed in italic type to indicate that they are new.

PROPOSED AMENDMENT OF ARTICLE I

Prohibition Against Classifying by Race by State and Other Public Entities

SECTION 1. Section 32 is added to Article I of the California Constitution, to read:
      SEC. 32. (a) The State shall not classify any individual by race, ethnicity, color, or national origin in the operation of public education, public contracting, or public employment.
      (b) The State shall not classify any individual by race, ethnicity, color, or national origin in the operation of any other state operations, unless the Legislature specifically determines that said classification serves a compelling state interest and approves said classification by a two-thirds majority in both houses of the Legislature, and said classification is subsequently approved by the Governor.
      (c) For purposes of this section, “classifying” by race, ethnicity, color, or national origin shall be defined as the act of separating, sorting, or organizing by race, ethnicity, color, or national origin including, but not limited to, inquiring, profiling, or collecting such data on government forms.
      (d) For purposes of subdivision (a), “individual” refers to current or prospective students, contractors, or employees. For purposes of subdivision (b), “individual” refers to persons subject to the state operations referred to in subdivision (b).
      (e) The Department of Fair Employment and Housing (DFEH) shall be exempt from this section with respect to DFEH-conducted classifications in place as of March 5, 2002.
      (1) Unless specifically extended by the Legislature, this exemption shall expire 10 years after the effective date of this measure.
      (2) Notwithstanding DFEH’s exemption from this section, DFEH shall not impute a race, color, ethnicity, or national origin to any individual.
      (f) Otherwise lawful classification of medical research subjects and patients shall be exempt from this section.
      (g) Nothing in this section shall prevent law enforcement officers, while carrying out their law enforcement duties, from describing particular persons in otherwise lawful ways. Neither the Governor, the Legislature, nor any statewide agency shall require law enforcement officers to maintain records that track individuals on the basis of said classifications, nor shall the Governor, the Legislature, or any statewide agency withhold funding to law enforcement agencies on the basis of the failure to maintain such records.
      (h) Otherwise lawful assignment of prisoners and undercover law enforcement officers shall be exempt from this section.
      (i) Nothing in this section shall be interpreted as prohibiting action which must be taken to comply with federal law, or establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the State.
      (j) Nothing in this section shall be interpreted as invalidating any valid consent decree or court order which is in force as of the effective date of this section.
      (k) For the purposes of this section, “State” shall include, but not necessarily be limited to, the State itself, any city, county, city and county, public university system, including the University of California, California State University, community college district, school district, special district, or any other political subdivision or governmental instrumentality of or within the State.
      (l) This section shall become effective January 1, 2005.
      (m) This section shall be self-executing. If any part or parts of this section are found to be in conflict with federal law or the United States Constitution, the section shall be implemented to the maximum extent that federal law and the United States Constitution permit. Any provision held invalid shall be severable from the remaining portions of this section.

Erwin Chemerinsky, “Why California’s Racial Privacy Initiative is Unconstitutional”

Erwin Chemerinsky, “Why California’s racial privacy initiative is unconstitutional,” Findlaw, Aug. 22, 2003

On October 7, California citizens are scheduled to vote on an initiative that would prevent government entities in the state from gathering, compiling, or publishing data concerning race and ethnicity.

While the initiative includes a laundry list of exceptions, it nevertheless is an extraordinarily broad prohibition on collection of an important type of information. The proposed initiative is based on the assumption that ignorance is better than knowledge.

The so-called Racial Privacy Initiative is a disaster from a policy standpoint — interfering with the government’s ability to track race and ethnicity-based hate crimes, and to gather data about the numerous medical conditions that disproportionately effect particular racial or ethnic groups. (The Initiative has an exemption for “medical research subjects and patients,” but not for epidemiological studies.)

If the Initiative were to pass, data on race discrimination by private entities could not longer be collected. Nor could the educational achievement of students of a given race or ethnicity be studied to see if it was improving or regressing.

These, and other, policy problems with the Initiative have been well explained elsewhere. In this column, I will consider a few of the less often remarked aspects of the so-called Racial Privacy Initiative: The way that it intersects with the democratic process, and with the law.

I will argue that the Initiative is designed in part to prevent studies showing the damaging effects of eliminating affirmative action — and thus to keep voters from reinstituting affirmative action in California. That is undemocratic: Voters have the right to cast informed votes.

In addition, I will also contend that the Initiative risks significantly increasing California government entities’ liability for discrimination. In a state already on the fiscal brink, it hardly seems wise to increase the risk of multimillion judgments that will only further unbalance the budget.

Finally, I will argue that the Initiative violates the First Amendment as applied to professors and researchers at state schools. Their free speech rights, as well as their academic freedom, require that they be able to conduct the very kind of studies the Initiative would put off-limits.

 

Protecting the anti-affirmative action Proposition 209 from public scrutiny

The Initiative was proposed by Ward Connerly, who was also the architect of California’s Proposition 209. As many readers may be aware, Proposition 209 abolished affirmative action in government contracting, education, and employment in California.

As Andrew Hacker explained in an August 14 article in The New York Review of Books, statistics demonstrate that Proposition 209 has had a devastating effect on diversity at public universities. During the period from 1998 to 2002, African-Americans comprised only 2.9 percent of the students at UCLA Law School, and 3.4 percent of the students at the University of California, Berkeley, Boalt Hall School of Law — both public institutions affected by Proposition 209. By comparison, African-Americans during this time period were 11.5 percent of the student body at the University of Southern California Law School and 8.0 percent of the students at Stanford Law School — two private institutions.

Statistics like these might persuade many voters to at least think twice about whether to reverse Proposition 209, and once again allow public institutions to adopt affirmative action programs. The Initiative’s solution is simple: Stop keeping statistics about race and education.

After all, without such statistics, the woeful underrepresentation of African-Americans and Latinos at many California public institutions can more easily be ignored. And without such statistics, it will become harder to make the argument that Proposition 209 cannot be retained.

How the initiative will increase legal liability for governments in California

Many federal laws create liability if there is proof of a racially disparate impact. Put another way, under these laws, discriminatory impact is sufficient to create liability, even without proof of discriminatory intent.

As early as 1971, in Griggs v. Duke Power Co., the Court made clear this was true with respect to Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination based on — among other criteria — race. The Court has also clearly held — for instance, in Thornburgh v. Gingles — that Section 2 of the Voting Rights Act prohibits a voting practice or system that has a disparate impact on racial minorities. In addition, the Court has acknowledged — for instance, in Alexander v. Sandoval — that the regulations under Title VI of the 1964 Civil Rights Act prohibit recipients of federal funds from engaging in practices that have a racially disparate impact.

With so much liability contingent on disparate impact, California state and local governments would be foolish if they failed to gather data as to the racial composition of their work forces; to examine the racial make-up of voting districts; and to assess the racial impact of their policies and practices. Unfortunately, however, that is exactly what the Initiative, if passed, would stop the government from doing.

Plaintiffs and plaintiffs’ attorneys, of course, could still gather such data — and file disparate impact suits. But under the Initiative, the government could not gather the very data that could help ensure that it is in compliance with the law.

When disparate impact violations can create multimillion-dollar liability, it is simply suicidal for a States’ voters to prevent their government from even knowing if it has broken the law. In the midst of a fiscal crisis, this kind of exposure is the last thing California needs.

Why the initiative violates the First Amendment of the U.S. Constitution

The initiative would, if passed, apply to every government employee. That includes educators — who are, strikingly, not exempted from the Initiative’s reach.

Thus, academics at state universities could no longer gather information and do research about race. A medical school professor, for example, could not research whether African-American and Latino children are more likely than white children to suffer lead poisoning, or whether AIDS continues to disproportionately ravage minority communities, or whether teenage smoking is a greater problem among certain ethnic groups. A law professor at a state school could not gather data about housing discrimination based on race. A political science professor could not research voting patterns of particular racial groups.

Prohibiting government employees from researching, and thus from writing, what they choose surely violates the First Amendment. This year, in Grutter v. Bollinger, the Supreme Court recently explained that “academic freedom … long has been viewed as a special concern of the First Amendment.” (Citation omitted) The Racial Privacy Initiative would be a content-based restriction on research and writing by professors in California. There is no way that it could withstand a constitutional challenge

The initiative should fail for both policy and legal reasons

Long ago, James Madison wrote: “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.”

Ignorance is just what the proposed Racial Privacy Initiative seeks to ensure. And this type of ignorance will be costly for California and its citizens — both literally and figuratively.

 

Mass incarceration

Michelle Alexander, The New Jim Crow