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May 5, 1997

BRIAN HO, by his parent and next friend, CARL HO; PATRICK WONG, by his parent and next friend, CHARLENE WONG; and HILARY CHEN, by her parent and next friend, JANE CHEN, Plaintiffs,

The opinion of the court was delivered by: ORRICK

 The Consent Decree entered on April 30, 1983, in San Francisco NAACP v. San Francisco Unified School District, 576 F. Supp. 34, No. C-78-1445 WHO, to end segregation in the San Francisco Unified School District ("SFUSD") provides, in paragraph 13, that of the nine racial or ethnic groups of which the student population was composed in 1983, *fn1" no fewer than four are to be represented in any school's student body, with no racial/ethnic group permitted to constitute more than 45 percent (40 percent at any "alternative school") of the school's total enrollment.

 Named plaintiffs Brian Ho, Patrick Wong, and Hilary Chen, each of whom applied to and was rejected for admission to schools "capped out" (at the maximum level of enrollment) for students of their race/ethnicity, bring this class action under 42 U.S.C. § 1983 to dissolve the Consent Decree, which they allege was and is unconstitutional, and to restore the status quo. The case is currently before the Court on plaintiffs' motion for summary judgment. For the reasons hereinafter set forth, the Court denies plaintiffs' motion.


 Plaintiff Brian Ho was five years old in 1994. He was rejected from the 1994-95 entering kindergarten class of Lawton and Jefferson elementary schools, one of which was his neighborhood school, because these schools were "capped out" for students of Chinese descent. Plaintiff Patrick Wong, who was fourteen years old in 1994, was not admitted to Lowell High School because his entry index score of 58 was lower than the minimum score of 62 required for Chinese applicants, although it was equal to the minimum score of 58 required for applicants of other racial/ethnic groups. *fn2" Wong also was rejected for admission to two other high schools because those schools were "capped out" for students of Chinese descent. Plaintiff Hilary Chen was eight years old in December 1993. She was rejected for transfer admission to Lawton, Stevenson, and Jefferson elementary schools because each school was "capped out" for students of Chinese descent.

 The named plaintiffs represent a class consisting of "all children of Chinese descent of school age who are current residents of San Francisco and who are eligible to attend the public schools of the SFUSD." (Mem. Decision and Order filed Mar. 8, 1996, at 3.) The Court granted plaintiffs' motion for class certification by Memorandum Decision and Order filed March 8, 1996. Plaintiffs allege that the Consent Decree, entered into between the San Francisco National Association of Colored People ("SFNAACP") and defendants SFUSD, its board members, and its Superintendent (collectively "Local Defendants") and the California State Board of Education, its members, the State Superintendent of Public Instruction, and the State Department of Education (collectively "State Defendants"), violates their rights to equal protection under the Fourteenth Amendment because of an invalid classification and assignment of students to schools by race. The SFNAACP was joined as a defendant in this action pursuant to an Order issued by the Court on January 19, 1995.



 Rule 56(c) of the Federal Rules of Civil Procedure provides that a court may grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The Supreme Court's 1986 "trilogy" of Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), requires that a party seeking summary judgment show the absence of a genuine issue of material fact. Once the moving party has made this showing, the nonmoving party must "designate 'specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(c)). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (citations omitted).


 To state a cause of action under § 1983, the plaintiff must show that (1) a person acting under color of state law (2) committed an act that deprived the plaintiff of some right, privilege or immunity protected by the Constitution or laws of the United States. Leer v. Murphy, 844 F.2d 628, 632-33 (9th Cir. 1988). Plaintiffs here allege that defendants, acting under color of state law, have invalidly classified and assigned students based on race, thereby depriving plaintiffs of their right to equal protection under the Fourteenth Amendment to the United States Constitution. Because the issue whether defendants have acted under color of state law is no longer in dispute, plaintiffs will prevail on their motion for summary judgment if they can demonstrate the absence of a dispute of material fact and that they are entitled to judgment as a matter of law on their Fourteenth Amendment claim.



 Plaintiffs' first challenge to the Consent Decree is to its constitutionality when entered. In a Memorandum Decision and Order denying defendants' motion to dismiss, filed September 28, 1995, this Court acknowledged that

the Court never actually determined that paragraph 13, a race-based remedy, was constitutional under strict scrutiny review. (See Consent Decree Order at 23:9 (no constitutional violations on the part of defendants were proved).) Rather, the Court evaluated the Consent Decree based on whether it was "fundamentally fair, adequate and reasonable." Id. at 17:21. The Court focused on how the Consent Decree addressed constitutional violations alleged, rather than constitutional violations found.

 (Mem. Decision and Order at 10:23-11:2 (first emphasis added).) The Court's not having applied strict scrutiny to the Consent Decree in 1983 does not mean, however, that in assessing whether the Consent Decree was "fundamentally fair, adequate and reasonable" the Court did not also consider its constitutionality under then-existing Supreme Court precedent applicable to factually similar cases. See United States v. City of Miami, 664 F.2d 435, 441 (5th Cir. 1981) ("Because the consent decree does not merely validate a compromise but, by virtue of its injunctive provisions, reaches into the future and has continuing effect, its terms require more careful scrutiny. Even when it affects only the parties, the court should, therefore, examine it carefully to ascertain not only that it is a fair settlement but also that it does not put the court's sanction on and power behind a decree that violates Constitution, statute, or jurisprudence."); United States v. Oregon, 913 F.2d 576, 580-81 (9th Cir. 1990), cert. denied, 501 U.S. 1250 (1991) ("because it is a form of judgment, a consent decree must conform to applicable laws") (citing Miami, 664 F.2d at 439); Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 921 F.2d 1371, 1383 (8th Cir. 1990) ("A court has a strong interest in not involving itself, along with the prestige of the law, in an ongoing equitable decree which is either manifestly unworkable or plainly unconstitutional").

 Nor does it appear that the Consent Decree was unconstitutional, under then-applicable standards, when entered. Similar consent decrees across the country successfully withstood constitutional scrutiny during approximately the same period. See, e.g., United States v. Board of Educ. of Chicago, 554 F. Supp. 912, 919 (N.D. Ill. 1983) (plan similar to the Consent Decree, similarly unlitigated, was approved by the court as falling "within the broad range of constitutionality established by law"); Geier v. Alexander, 801 F.2d 799 (6th Cir. 1986) (use of racial quotas to help eliminate residual effects of de jure segregation in Tennessee's higher education system did not violate equal protection guarantees).

 Even if the Consent Decree had been unconstitutional when entered, however, plaintiffs, as a subclass of the original class of plaintiffs that entered into the Consent Decree, would be barred from raising the issue now. *fn3" As a judgment, a consent decree has the force of res judicata. SEC v. Randolph, 736 F.2d 525, 528 (9th Cir. 1984). Although in its Memorandum Decision and Order filed September 28, 1995, this Court found that plaintiffs' entire suit was not barred by the doctrine of res judicata, principally because of the extent to which plaintiffs' claims of unconstitutionality were based on the operation of the Consent Decree in the years after 1983, assessment of the res judicata effect of the Consent Decree on the issue of the Consent Decree's constitutionality when entered requires a different analysis.

 Res judicata, or claim preclusion, prevents the relitigation of claims previously tried and decided. Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 84 L. Ed. 2d 274, 105 S. Ct. 1327 (1985). Under applicable principles of federal law, in order for the res judicata bar to apply, an adjudication must "(1) involve the same 'claim' as the later suit, (2) have reached a final judgment on the merits, and (3) involve the same parties or their privies." Nordhorn v. Ladish Co., 9 F.3d 1402, 1404 (9th Cir. 1993) (citations omitted). A class action judgment "binds all class members on every matter which was or could have been offered to sustain or defeat the claims sued upon." W. Schwarzer, A. Tashima, and J. Wagstaffe, California Practice Guide: Federal Civil Procedure Before Trial § 10:598 (The Rutter Group 1996) ...

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