does not relieve plaintiffs of their burden, as moving parties on summary judgment, of demonstrating the absence of disputes of material fact on key issues. See Celotex, 477 U.S. at 325 (where nonmoving party bears the burden of proof at trial, "the burden on the moving party may be discharged by 'showing' -- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case").
Given the use of racial classifications, the threshold issue for resolution is the appropriate level of constitutional scrutiny. The Supreme Court recently has held that "all racial classifications, imposed by whatever federal, state or local government actor, must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests." Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S. Ct. 2097, 2113, 132 L. Ed. 2d 158 (1995); see also Shaw v. Hunt, 135 L. Ed. 2d 207, 116 S. Ct. 1894, 1900 (1996) (redistricting plan violated Equal Protection Clause where not narrowly tailored to serve compelling state interest). Defendants argue that because Adarand, did not arise in the school desegregation context, its mandate does not apply.
As a recent, post-Adarand, district court opinion has noted, "until the Supreme Court elects to furnish guidance as to the appropriate level of scrutiny to 'race conscious' student enrollment provisions designed to remedy obstinate historical racial discrimination, lower courts will be left to grapple on their own with this thorny problem." Stanley v. Darlington, 915 F. Supp. 764, 775 (D.S.C. 1996).
For purposes of this Opinion, the Court assumes, without deciding, the appropriateness of strict scrutiny review. Consequently, the Court evaluates the Consent Decree for equal protection purposes in the same manner it would a voluntary affirmative action program. See Howard v. McLucas, 871 F.2d 1000, 1006 (11th Cir.), cert. denied, 493 U.S. 1002, 107 L. Ed. 2d 555, 110 S. Ct. 560 (1989).
Because defendants have the burden of justifying their classification scheme, to prevail on summary judgment plaintiffs need only show the absence of a dispute of a material fact, and that they are entitled to judgment as a matter of law, with respect to a single element of the analysis.
The first issue raised pursuant to strict scrutiny analysis is whether there exists a compelling state interest that would justify the use of racial classifications. It is clear that a state's interest in remedying the effect of past racial discrimination "may rise to the level of a compelling state interest" justifying the use of racial distinctions. Shaw, 116 S. Ct. at 1902; see also Wygant v. Jackson Board of Educ., 476 U.S. 267, 286, 90 L. Ed. 2d 260, 106 S. Ct. 1842 (1986) (O'Connor, J., concurring in part) ("remedying past or present racial discrimination by a state actor is a sufficiently weighty state interest to warrant the remedial use of a carefully constructed affirmative action program"). To pass constitutional muster, however, the past discrimination must be specifically identified, and "the institution that makes the racial distinction must have had a 'strong basis in evidence' to conclude that remedial action was necessary 'before it embarks on an affirmative-action program.'" Shaw, 116 S. Ct. at 1902 (quoting Wygant, 476 U.S. at 277).
Plaintiffs advance the argument that, in the absence of a judicial finding of past discrimination by the SFUSD prior to the entry of the Consent Decree in 1983, there can be no possible justification for the racial classification imposed on plaintiffs. The Supreme Court's cases do not so hold. See, e.g., Wygant, 476 U.S. at 289 (O'Connor, J., concurring in part) ("a contemporaneous or antecedent finding of past discrimination by a court or other competent body is not a constitutional prerequisite to a public employer's voluntary agreement to an affirmative action plan," as a constitutional violation "does not arise with the making of a finding; it arises when the wrong is committed"); Ensley Branch, NAACP v. Seibels, 31 F.3d 1548, 1565 (11th Cir. 1994) ("although Croson [ City of Richmond v. Croson, 488 U.S. 469, 109 S. Ct. 706, 102 L. Ed. 2d 854 (1989)] requires that a public employer show strong evidence of discrimination when defending an affirmative action plan, the Supreme Court has never required that, before implementing affirmative action, the employer must have already proved that it has discriminated") (emphasis added); Crumpton v. Bridgeport Educ. Ass'n, 993 F.2d 1023 (2d Cir. 1993).
Crumpton involved a constitutional challenge to the provisions of a consent decree, entered in an earlier school desegregation case, relating to preferences given to minority teachers in making reductions in force. As the Second Circuit noted, "in the instant case there was never a judicial finding that a constitutional violation had occurred precisely because a consent decree resolved the parties' dispute. A carefully worded consent decree can not substitute for a judicial determination." Id. at 1029. Because no such judicial determination had been made, the Second Circuit applied strict scrutiny analysis to hold that the consent decree's layoff plan was not sufficiently "narrowly tailored" to withstand constitutional challenge. Prior to reaching this conclusion, however, the court acknowledged that "rectifying past discrimination is unquestionably a compelling governmental interest," and suggested that, in other circumstances, the district court could have made a finding on remand that such discrimination had occurred. Id. at 1030; see also Wygant, 476 U.S. at 278 (plurality opinion).
All that the trial court is required to do when assessing constitutionality under strict scrutiny is "make a factual determination that the [state actor] had a strong basis in evidence for its conclusion that remedial action was necessary." Wygant, 476 U.S. at 277 (plurality opinion). It is true that, in approving the Consent Decree, this Court did not reach any conclusion on the issues of fact and law underlying the merits of the dispute. SFNAACP, 576 F. Supp. at 44. This does not mean, as a matter of law, that there was. insufficient evidence to support a finding of past discrimination.
To so hold would be to disregard the principle that "voluntary conciliation and settlement are the preferred means of dispute resolution, particularly in complex class action litigation." San Francisco NAACP, 576 F. Supp. at 44. Nor does the absence of a prior judicial determination that the SFUSD had a "strong basis in evidence for its conclusion that remedial action was necessary," Wygant, 476 U.S. at 277, mean that the SFUSD had no such basis in evidence.
To the contrary, this is a question of fact that can be determined now.
Perhaps because of their position that the Court's failure to make findings of past discrimination in 1983 means that for purposes of strict scrutiny analysis no such discrimination existed, plaintiffs have not met their burden of showing the absence of a dispute of material fact on the issue of past discrimination. This is not surprising, as the degree to which the SFUSD engaged in intentional segregation prior to the institution of the Consent Decree is a factual issue no less contested now than it was then.
The second matter for determination under strict scrutiny analysis is whether the challenged use of racial classifications is "narrowly tailored" to achieve the compelling state interest it is intended to serve. See Shaw, 116 S. Ct. at 1902. In determining whether remedies based on race are narrowly tailored, "several factors must be considered: necessity for the relief; efficacy of alternative remedies; flexibility and duration of the relief; waiver provisions; relationship of any numerical goals to the relevant [population]; and impact of relief on third parties." Davis v. City & County of San Francisco, 890 F.2d 1438, 1447 (9th Cir. 1989) (citing United States v. Paradise, 480 U.S. 149, 171, 94 L. Ed. 2d 203, 107 S. Ct. 1053 (1987)) (consent decree designed to end racial and sexual discrimination and harassment in city fire department did not violate equal protection), cert. denied, 498 U.S. 897 (1990).
Determining whether a consent decree is sufficiently "narrowly tailored" to achieve its goals and survive strict scrutiny, see Davis, 890 F.2d at 1447, rests on factual issues. Rather than pointing to the absence of factual evidence supporting defendants' case, Celotex, 477 U.S. at 325, on the issue whether the Consent Decree is narrowly tailored, however, plaintiffs advance a number of legal arguments to support their position that as a matter of law it is not.
Plaintiffs contend, first, that paragraph 13 of the Consent Decree constitutes a racial balancing scheme unconstitutional under Croson. 488 U.S. at 506. Croson, however, holds only that, on the facts of that case, a 30 percent quota could not be considered "narrowly tailored." Id. at 507. Next, plaintiffs maintain that certain provisions of the Consent Decree address matters unrelated to school segregation, such as the achievement of academic excellence, "activism for housing development," and influencing the transfer of students between the SFUSD and other school districts.
(Pls.' Mot. at 18-19.) All these provisions, however, relate to activities that the Consent Decree identifies as designed to promote desegregation within the SFUSD. Although matters such as housing development may fall outside the SFUSD's general purview, it cannot be said as a matter of law that the SFUSD's obligations under the Consent Decree go beyond remedying past discrimination. Nor have plaintiffs offered evidence to show that the Consent Decree's stated goal of eliminating racial discrimination in the SFUSD is a pretext, that the Consent Decree is actually being used "'to achieve broader purposes lying beyond the jurisdiction of school authorities.'" Missouri v. Jenkins, 515 U.S. 70, 115 S. Ct. 2038, 2048, 132 L. Ed. 2d 63 (1995) (quoting Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 22-23, 28 L. Ed. 2d 554, 91 S. Ct. 1267 (1971)).
Most important, plaintiffs fail to show the absence of a dispute of fact relating to the "necessity for the relief; efficacy of alternative remedies; flexibility and duration of the relief; waiver provisions; relationship of any numerical goals to the relevant [population]; and impact of relief on third parties." Davis, 890 F.2d at 1447. Defendants, by contrast, have provided evidence of the existence of serious disputes of fact on these issues that preclude the granting of summary judgment for plaintiffs on the Consent Decree's constitutionality.
Plaintiffs argue in the alternative that even if the Consent Decree were otherwise constitutional, the SFUSD's having complied with its mandates for fourteen years necessitates immediate termination.
Several recent Supreme Court cases have dealt with the propriety of the termination of decrees in the school desegregation context. Although in Green v. County Sch. Bd. of New Kent County, 391 U.S. 430, 439, 20 L. Ed. 2d 716, 88 S. Ct. 1689 (1968), the Supreme Court held that "the court should retain jurisdiction until it is clear that state-imposed segregation has been completely removed," recent opinions have clarified that "from the very first, federal supervision of local school systems was intended as a temporary measure to remedy past discrimination." Board of Educ. of Oklahoma City Pub. Schs. v. Dowell, 498 U.S. 237, 247, 112 L. Ed. 2d 715, 111 S. Ct. 630 (1991) (finding that the district "was being operated in compliance with the commands of the Equal Protection Clause of the Fourteenth Amendment, and that it was unlikely that the Board would return to its former ways, would be a finding that the purposes of the desegregation litigation had been fully achieved").
As the Supreme Court held in Dowell :
Dissolving a desegregation decree after the local authorities have operated in compliance with it for a reasonable period of time properly recognizes that necessary concern for the important values of local control of public school systems dictates that a federal court's regulatory control of such systems not extend beyond the time required to remedy the effects of past intentional discrimination.