The opinion of the court was delivered by: William Alsup United States District Judge
ORDER DENYING PROPOSED EXTENSION OF CONSENT DECREE
A half-century ago, in the landmark decision Brown v. Board of Education, 347 U.S. 483 (1954), the Supreme Court called for an end to de jure school segregation. Commenced in 1978, this class action accused the San Francisco Unified School District of de jure segregation. Although this charge was never proven, a settlement in 1983 resulted in a consent decree.
For twenty-two years, the consent decree has regulated all public school assignments for San Francisco's children. At first, the decree resulted in better racial integration. Later, as a result of a different lawsuit challenging the decree, the parties agreed on a different method for student assignment, one that incorporated a system called the "diversity index." This proved to be a misnomer, for it has not achieved diversity in any meaningful sense. To the contrary, the student-assignment system imposed by the negotiated revision has allowed, if not fostered, resegregation in San Francisco schools.
Since the case was reassigned to the undersigned judge on January 11, 2002, the Court has repeatedly urged the parties to fix the so-called diversity index and substitute a system that will better achieve racial integration. While the parties have discussed alternatives, they have not come close to even proposing a solution. By its own terms (and by prior stipulation of all parties), the consent decree is scheduled to end on December 31, 2005, having previously been extended from December 31, 2002. Earlier this year, plaintiffs' counsel threatened to seek another extension (despite the stipulated termination date). The deadline for filing any such motion was set for August 25, 2005. In lieu of filing a motion, however, the parties submitted a compromise proposal to extend the decree by another eighteen months through June 30, 2007, a proposal that would, among other things, bar any revision to the student-assignment method for another year.
This proposal was the subject of a public hearing at which many San Francisco parents attended and were heard. It is clear that the present system imposes a burden on families. Their sacrifice has been in vain, for the diversity index has not and will not produce the benefit of diversity or racial integration. For this reason and other reasons now set forth, including the failure to prove up the legal prerequisites for prolonging the consent decree, this order DENIES the proposed eighteen-month extension. The consent decree will end, as earlier agreed, on December 31, 2005.
In 1978, the San Francisco branch of the National Association for the Advancement of Colored People ("SFNAACP") and a group of black parents filed this class-action lawsuit. They charged the San Francisco Unified School District, its board members and its superintendent, the California State Board of Education and its members, the State Superintendent of Public Instruction and the State Department of Education with engaging in racially discriminatory practices and maintaining a segregated school system in San Francisco, in violation of the constitutions and laws of the United States and California. Plaintiffs sought a declaratory judgment and injunctions guaranteeing them equal educational opportunity and fully desegregated schools under a court-ordered desegregation plan.*fn1 The action was assigned to the Honorable William H. Orrick, Jr., who presided over the case for almost all of its nearly thirty-year history.*fn2
During a national era of widespread de facto segregation, if not de jure segregation, San Francisco faced a situation similar to that of many other large urban school districts: Its schools were sharply divided along racial lines. In 1970, 63 of 96 elementary schools were segregated. At those schools, one racial group comprised over fifty percent of the school population at a time when the largest racial group - white students - comprised only 34 percent of the total elementary-school population. There were 29 white schools, 23 black schools, four Hispanic schools and seven Chinese schools (Order Denying Plaintiffs' Motion for Partial Summary Judgment, June 30, 1981, at 11, 42--43).
Schools were also segregated according to faculty and administrators. The racial and ethnic makeup of the district's teachers was consistently disproportionate to that of its students. In 1970, although white students comprised only 35 percent of the district's total student population, white teachers comprised 79 percent of the district's teachers (id. at 58--60). In 1965, more than 73 percent of the district's regular schools had no black teachers (id. at 60). Most black teachers were assigned to predominantly black schools, where teachers tended to be less experienced and paid lower salaries (id. at 60--61). A similar pattern of segregation applied to school administrators. In 1965, there were only two nonwhite administrators in the entire district. The only black principal was assigned to Bret Harte, a school 77 percent black. The only Chinese principal was assigned to Spring Valley, a school 91 percent Chinese (id. at 64).
1. LITIGATION LEADING TO THE 1983CONSENT DECREE
In the five years following the filing of the complaint, the parties litigated various issues. On September 18, 1979, the state defendants' motion for dismissal or abstention was denied. Judge Orrick rejected defendants' arguments that: (1) the Court should not decide the "unsettled" issue of state law concerning the apportionment of policy-making powers between state and local authorities, and (2) primary responsibility for implementing education policy should rest with the state legislature and local school districts, not with defendant state agencies.
Because proof of segregative intent was a predicate for demonstrating a violation of equal protection, this issue was also litigated. See, e.g., Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 279 (1979). To establish segregative intent, plaintiffs needed to demonstrate evidence of past purposeful discrimination that would then give rise to liability for subsequent acts which had the effect of maintaining a segregated school system. Absent such a showing, plaintiffs needed to demonstrate ongoing intentional segregation, a higher burden.
On September 24, 1981, the Court denied the school district's motion for a separate trial on the issue of whether, at the time of filing of the original complaint, it was operating a segregated school system. While that motion was still pending, on June 30, 1981, the Court denied plaintiffs' motion for partial summary judgment on the issue of whether, as of 1954 and 1970, the district was intentionally racially segregated.
These two motions sharpened the issues for trial and highlighted the factual strengths and weaknesses of plaintiffs' case. For example, plaintiffs had stronger evidence on racial disparities in faculty and administrative hiring but lacked evidence concerning discrimination against minority groups other than blacks. As a result, the parties entered into settlement negotiations, drawing on the expertise of a Court-appointed settlement team co-chaired by Professor Harold Howe II and Professor Gary Orfield, two of the most well-reputed educators in the country; both had extensive experience in desegregation cases. The parties submitted a consent decree on December 30, 1982. After a fairness hearing held on February 14, 1983, the Court approved the consent decree by written decision on May 20, 1983. San Francisco NAACP v. San Francisco Unified Sch. Dist., 576 F. Supp. 34 (N.D. Cal. 1983).
The goal of the decree was "to eliminate racial/ethnic segregation or identifiability in any District school program or class and to achieve throughout the system the broadest practicable distribution of students from nine racial and ethnic groups." Id. at 37; Consent Decree ("CD") ¶ 12. Guidelines were adopted to prevent any racial/ethnic group from exceeding 45 percent of the student body at any regular school or 40 percent at any "alternative" school (CD ¶ 13). All schools and all grades (K--12) were covered. The decree further designated nineteen historically segregated schools for special desegregation treatment and identified certain schools in Bayview-Hunter's Point for reconstitution and conversion into magnet schools (CD ¶¶ 14, 17).*fn3
Many of the policies and practices alleged to have contributed to a racially segregated school system were also addressed. For example, the decree provided that each school's staff should reflect the district-wide racial/ethnic composition of students and that staff would be equitably assigned throughout the district (CD ¶¶ 34--35). The parties were also required to report to the Court on the fairness and consistency of disciplinary actions (CD ¶ 38).
Finally, the decree stated that "the overall goal of this Consent Decree will require continued and accelerated efforts to achieve academic excellence" and required monitoring of student academic progress in an annual report (CD ¶¶ 39--40). Other highlights of the decree included a requirement that both the school district and an independent reviewer (subsequently known as the "consent-decree monitor") submit an annual report regarding the district's compliance with the consent decree and a provision that the state would pay the costs of complying with the decree (CD ¶¶ 44--45).
2. RESULTS OF THE 1983CONSENT DECREE
Implementation of the consent decree proceeded successfully, with the exception of a dispute over exactly how much the state was required to reimburse the district for the costs of implementation. See San Francisco NAACP v. San Francisco Unified Sch. Dist., 695 F. Supp. 1033 (N.D. Cal. 1988), rev'd, 896 F.2d 412 (9th Cir. 1990). After eight years of implementation, the Court commissioned a comprehensive report on the results of the consent decree, appointing Professor Orfield to lead the investigation team. This committee of experts filed its report in June 1992, finding that the district had "largely achieved the Decree's desegregation goals," while also noting the continuing achievement gap for black and Hispanic students. Desegregation and Educational Change in San Francisco, Findings and Recommendations on Consent Decree Implementation 1 (1992).
Based on recommendations made in the report, the Court approved a modified consent decree on November 5, 1993 (hereinafter "CD II"). The modified decree left the basic structure of racial/ethnic distribution the same but incorporated changes in individual school treatment (CD II at ¶¶ 15--16). The district was also required to provide an additional annual report showing the longitudinal impact of the consent decree (CD II ¶ 40).*fn4 At the fairness hearing, motions to intervene were heard from Multicultural Education, Training, and Advocacy, Inc., representing the interests of both Latino and Chinese students, and the local teachers union. On July 22, 1993, the Court denied the motions to intervene while permitting two coalitions, representing the interests of Latino and Chinese students respectively, to act as amici curiae.
The goal of the consent decree was to promote desegregation. In doing so, it intended to improve the quality of education all students received by equalizing access, furthering diversity and giving effect to every child's right to equal educational opportunity under Brown v. Board of Education. For a period of time, this goal was realized. The consent decree succeeded in promoting integration and academic excellence throughout the district. Between 1983 and 1997, fifteen schools were reconstituted, five new schools were established and one school was closed (Stuart Biegel, Report 17 of the Consent Decree Monitoring Team 9 (1999--2000) [hereinafter "Biegel Report No. 17"]). At the apex of integration, during the 1997--98 academic year, only thirty regular district schools and six alternative schools (out of 122 schools total) were out of compliance with the 45/40 percent requirement, and only one school enrolled more than fifty percent of a single race/ethnicity. In addition, standardized test scores increased seven years in a row between 1992 and 1999. Reading scores increased for students of every race and ethnicity, with the exception of a slight drop for Korean students; math scores also increased for students of every race and ethnicity, with the exception of a slight drop for Native American students (Biegel Report No. 16 (1998--99) at 45, 116).
Notwithstanding this success, some members of the San Francisco community were not pleased with the results of the 1983 consent decree, particularly the requirement that student assignment to schools adhere to a certain racial/ethnic distribution. After 1983, the demographics of the district changed significantly. Enrollment of black and white students declined as Chinese-American and Latino enrollment grew. While Chinese-American students represented 19.5 percent of the district in 1983, by 1992 they had grown to 24 percent, the largest ethnic subgroup in the district.*fn5 The practical implication of this demographic trend was that Chinese-American students were bumping up against the 45/40 percent enrollment ceilings set by the 1983 consent decree, especially at the city's most desirable public schools. At Lowell, the district's renowned academically-selective, alternative high school, for example, Chinese-American students needed a significantly higher admission index score to gain admission than did white, black or Latino students.
On July 11, 1994, several schoolchildren of Chinese descent filed suit against the district and state defendants. The plaintiffs in Ho v. San Francisco Unified School District, a Lowell applicant as well as two elementary school children who had been "capped out" of their neighborhood schools, alleged that the student-assignment plan described in Paragraph 13 of the consent decree - the 45/40 percent ethnic distribution requirement - constituted race discrimination in violation of the Equal Protection Clause. In January 1995, the Ho plaintiffs filed a first amended complaint adding the SFNAACP as a defendant. In March 1996, the Court certified a class comprised of San Francisco schoolchildren of Chinese descent.
The Ho plaintiffs then filed a motion for summary judgment, arguing that the ethnic-distribution requirement of Paragraph 13 was unconstitutional in 1983 and remained so. In the alternative, they argued that because the district had already complied for fourteen years, the decree was no longer necessary and should be dissolved. In May 1997, the motion for summary judgment was denied. The Court held that the decree was not unconstitutional when entered and that, in any event, res judicata barred the plaintiffs - as members of the original class - from raising the issue. Ho v. San Francisco Unified Sch. Dist., 965 F. Supp. 1316, 1320 (N.D. Cal. 1997). The Court also held that there were issues of fact precluding summary judgment, at least as to: (1) the existence of past discrimination justifying the consent decree; (2) the necessity of Paragraph 13 as a sufficiently narrowly-tailored remedy; and (3) whether continued judicial supervision was necessary to achieve full compliance with the decree. Id. at 1324--25, 1327.
The Ho plaintiffs appealed the summary-judgment ruling. They also sought a writ of mandamus directing the Court not to proceed with trial. In an opinion by Judge John Noonan filed on June 4, 1998, the Ninth Circuit dismissed the appeal for lack of jurisdiction. It noted that "proper resolution of any desegregation case turns on a careful assessment of its facts," which had not yet been presented. Ho v. San Francisco Unified Sch. Dist., 147 F.3d 854, 860 (9th Cir. 1998) (emphasis in original). The court also denied the petition for a writ of mandamus, while nevertheless pointing out weaknesses in the evidence justifying the continued implementation of Paragraph 13. After a lengthy discussion of the history of racial discrimination against the Chinese in San Francisco, Judge Noonan identified the two issues that remained for trial: "Do vestiges remain of the racism that justified Paragraph 13 of the consent decree in 1983? Is Paragraph 13 necessary to remove the vestiges if they do remain?" Id. at 865. The Ninth Circuit stressed that defendants' evidence must tie the current vestiges of segregation to the discriminating practices and policies that justified the adoption of the consent decree in 1983. It also held that it was defendants' burden "to demonstrate that Paragraph 13 is still a remedy fitted to a wrong - to show that the racial classifications and quotas employed by Paragraph 13 are tailored to the problems caused by vestiges of the earlier segregation." Ibid.
On December 10, 1998, the Court denied the Ho plaintiffs' motion for a preliminary injunction. That motion sought to enjoin defendants from further implementation of the student-assignment plan described in Paragraph 13. The Court found that plaintiffs had not shown irreparable harm. If they succeeded at trial, there would be ample time to assign students to schools in a race-neutral manner for the following school year.
On February 16, 1999, the first day of trial, the parties submitted a settlement agreement, which was later approved in an order filed July 2, 1999. Therein, Judge Orrick expressly noted that the Ho "[p]laintiffs were likely to succeed on their claim that the race-based student-assignment plan is no longer constitutional" because defendants were unlikely to be able to meet the burden of "proving that vestiges still exist of the discriminatory policies and practices that justified the Consent Decree in 1983, and that the race-based student-assignment plan in the Consent Decree is necessary to address the problems caused by the vestiges of the earlier segregation." San Francisco NAACP v. San Francisco Unified Sch. Dist., 59 F. Supp. 2d 1021, 1029 (N.D. Cal. 1999).
The central feature of the Ho settlement was a modification of Paragraph 13 to allow the creation of a new student-assignment plan that eliminated race as a factor in determining student placement. The Court further required the parties to respond to reports submitted pursuant to Paragraph 44 of the original 1983 consent decree, which mandated an annual independent review of the district's progress. Id. at 1039. Specifically, the parties were required to address issues raised in those reports by members of the consent-decree advisory committee (represented at hearings by Hoover Liddell) and consent-decree monitor Stuart Biegel.*fn6
The Ho settlement agreement also set a termination date for the consent decree of December 31, 2002, subject to Court approval (¶ A); provided for the modification of Paragraph 12a, so that the district could request, but not require, parents and/or students to identify themselves by race at the time of enrollment (¶ D); and stipulated that the parties must meet to discuss additional modifications to Paragraph 13 if the new student-assignment plan resulted in an identifiable racial/ethnic concentration at any particular school (¶ G). On August 11, 1999, the consent decree was amended to include the terms of the Ho settlement (hereinafter "CD III").
During 1999--2001, the reports submitted by the advisory committee and Mr. Biegel reflected continuing problems within the school district and failure to comply with certain terms of the decree, including the development of a race-neutral student-assignment plan (see CD III ¶ 13). The district was ordered to file a comprehensive plan to address these problems, which it did on April 11, 2001. The plan was titled "Excellence for All: A Five-Year Comprehensive Plan to Achieve Educational Equity in the San Francisco Unified School District for School Years 2001--02 through 2005--06." At the parties' request, Thomas J. Klitgaard was appointed as special master to assist the parties in resolving any disputes.
On July 11, 2001, the parties submitted an amended stipulated settlement agreement, which was incorporated into the current version of the decree (hereinafter "CD IV"). These changes included further amendments and extended the life of the decree to December 31, 2005, with state funding to continue until June 30, 2006, in order to "facilitate an orderly transition" (CD IV ¶ 48-1). This extension was allegedly necessary due to "unexpected turmoil" in the district. This included the sudden resignation of Superintendent Waldemar Rojas (after which the school district was left without a leader for over a year) and widely-publicized financial mismanagement. The amended settlement expressly stated that by December 31, 2005, the district "shall have taken all practicable steps" to eliminate any vestiges of de jure discrimination, thereby specifically incorporating the legal standard for terminating desegregation consent decrees. See Bd. of Educ. of Oklahoma City Pub. Schs. v. Dowell, 498 U.S. 237 (1991); Freeman v. Pitts, 503 U.S. 467 (1992).
As part of the 2001 settlement, the district agreed to adopt and comply with a system of monitoring and review of consent decree budgets and programs. More importantly, the settlement resulted in a new student-assignment provision laid out in Paragraph 13 of the decree to fulfill the mandate of the 1999 settlement. As agreed, race/ethnicity could no longer be used as a factor in student assignment (CD IV ¶ 13(j)).*fn7 Instead, the district would assign students to schools based on: (1) where siblings have been assigned; (2) whether any specialized learning needs must be accommodated; and (3) a "diversity index" taking into account socioeconomic status, academic achievement, English-language learner status, mother's educational background, academic performance at the student's prior school, home language and geographic areas (CD IV ¶ 13(k), incorporating Attachment B).*fn8 A separate plan that was consistent with Paragraph 13(j) would be developed for Lowell High School and School of the Arts. Paragraph 13(m) was amended to set forth a procedure for addressing any identifiable racial or ethnic concentration at a particular school that the parties believed adversely affected the district's goals, although no party could propose a change to the student-assignment procedure until the 2004--05 school year.
4. RESULTS OF THE 1999/2001SETTLEMENTS
With the adoption of the student-assignment method which arose from the 1999 and 2001 settlements, the district has become increasingly resegregated. A dramatic achievement gap has persisted for many black and Latino students. During the 2001--02 school year, thirty schools were severely resegregated at one or more grade levels.*fn9 By the 2004--05 school year, this number ...