APPEAL from a judgment of the Superior Court of Los Angeles County, Paul Gutman, Judge. Affirmed. (Los Angeles County Super. Ct. No. BC341363).
The opinion of the court was delivered by: Kriegler, J.
CERTIFIED FOR PUBLICATION
The issue presented in this appeal is whether the Magnet and Permit with Transportation (PWT) programs of defendant Los Angeles Unified School District (the District) violate Proposition 209 (Cal. Const., art. I, § 31, eff. Nov. 6, 1996) because the programs take into account a student's race or ethnicity in determining admission. Proposition 209 prohibits favorable or discriminatory consideration of race or ethnicity in public education, but expressly exempts from its reach court-ordered integration plans in existence prior to its effective date. We hold the trial court correctly ruled the District's Magnet and PWT programs are exempt from the prohibition in Proposition 209 because they were part of an existing court-ordered integration plan approved and implemented in 1981.
BACKGROUND AND PROCEDURAL HISTORY
Following nearly two decades of litigation, the superior court entered a final order on September 10, 1981, approving with modification an integration plan in Crawford v. Board of Education of the City of Los Angeles, case No. 822854.*fn1 The plan of the District included provisions for Magnet schools and PWT programs, both of which took into account the race or ethnicity of the student in the application and admission process. In its final order, the superior court terminated its supervision over the case, except for the issue of attorney fees.
In 1996, the voters of California approved Proposition 209,*fn2 which in part prohibits discrimination against or preferential treatment in favor of any individual or group on the basis of race, ethnicity, or national origin in the operation of public education. Proposition 209 included the following exception, found in article I, section 31, subdivision (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."
The Magnet program is a voluntary integration program providing unique educational opportunities to students from kindergarten to 12th grade. The Magnet schools are part of the District's voluntary desegregation program. As of 2007-2008, the District operated 162 Magnet programs. Some Magnets are located on regular campuses, while others occupy entire school sites. Only gifted/high ability and highly gifted Magnets have specific eligibility requirements.
Admission to a Magnet school is based on a priority point system. Twelve priority points are earned for students who have completed one level in a Magnet school and apply to continue in the Magnet program at the next level. Between 4 and 12 points are awarded to applicants who have been on a Magnet waiting list, with the number of points determined by the length of time on the list. Students whose schools are designated as Predominately Hispanic, Black, Asian, and Other Non-Anglo (PHBAO Schools) receive four points. Four points are also awarded to students whose schools are deemed overcrowded. A student whose sibling attends the same Magnet to which application is made is given three points.
Maintaining ethnic balance is a factor in determining available space or openings in a Magnet program. Admission is determined using a formula of 60 percent PHBAO and 40 percent Other White, although some Magnets use a 70/30 percent ratio. If a student of the required ethnicity is on the waiting list, the first available opening must go to that student in order maintain racial or ethnic balance in the Magnet school. Ethnicity may affect the timing of admission to a Magnet and whether a student gets into a first choice school.
The PWT program is a voluntary integration plan available to students who live within a PWT sending school area. The PWT provides integrated educational experiences by placing PHBAO students in integrated settings, while providing opportunities for Other White students to attend PHBAO schools. PWT sending schools are PHBAO; PWT receiving schools are predominately White. Free transportation is provided only to students from sending schools. Assignments are made in order to improve the racial balance at the receiving school.
When applying for the Magnet or PWT programs, students must mark on the application one of seven federally identified racial or ethnic categories: American Indian; Asian; Black/African American, not of Hispanic origin; Hispanic; White; Filipino; and Asian Islander. According to the application, "Your application WILL NOT be processed unless an ethnicity (1-7) is indicated." There is a provision for indicating the applicant is "Multi-racial/Multi-ethnic," but unless one of the seven federally recognized ethnic or racial categories is marked, the application will not be processed.
Allegations of the Complaint
On October 12, 2005, plaintiff and appellant American Civil Rights Foundation (ACRF) filed a verified complaint against the District for declaratory and injunctive relief, alleging the racial considerations in the Magnet School and PWT programs violate Proposition 209 to the extent the District's programs use race or ethnicity to select students. The complaint alleged Proposition 209, passed in November 1996, specifically prohibits racial or ethnic preferences in public education, and there was no existing court order prior to November 1996 mandating the District to use race or ethnicity in selecting students for the Magnet or PWT programs. The order terminating jurisdiction in Crawford v. Board of Education of the City of Los Angeles entered September 10, 1981, neither mandated nor authorized the District to use race or ethnicity in the selection of students to the programs.
The complaint alleged the details of the application and admission process for the Magnet and PWT programs, essentially as described above. ACRF sought a declaration that the programs impermissibly use race or ethnicity as a basis for discrimination against or preferential treatment to individuals or groups in public education. ACRF sought injunctive relief barring the District from enforcing the programs insofar as they require the use of race or ethnicity in the selection of students for the programs.
The District's Answer and the Intervenors
The District answered that it was required to engage in each act complained of by Crawford v. Board of Education (1976) 17 Cal.3d 280. Proposition 209, by its terms, is not applicable to the District's court-ordered desegregation plan, as the Magnet and PWT programs were created pursuant to a state court order that was acknowledged and approved by the United States Supreme Court (Crawford v. Board of Education (1982) 458 U.S. 527), and was in place on the effective date of the constitutional amendment.
Two complaints in intervention were filed by multiple parties, denominated the Alvarez intervenors consisting of parents with students in the District's Magnet schools, and the Almaraz intervenors consisting of parents of five students in the District and two organizations. Both intervenors opposed ACRF's action.
The Summary Judgment Motions
All parties filed motions for summary judgment. The motion of ACRF was denied, but the District's motion for summary judgment was granted. Upon granting the District's motion, the motions for summary judgment filed by the Alvarez and Almaraz intervenors were deemed moot. Only the District's successful summary judgment motion is at issue in this appeal.*fn3
The District's Summary Judgment Motion and ACRF'S Opposition
The District moved for summary judgment on the basis that the Magnet and PWT programs were part of court orders or decrees in force as of the effective date of Proposition 209 on November 6, 1996. The District argued it was required by court order to implement the programs on November 6, 1996. The District remained under court order after the trial court terminated supervision over the desegregation plan, even though that termination occurred many years earlier. The District relied upon Board of Education v. Superior Court (1998) 61 Cal.App.4th 411 (Carlin) for the proposition that desegregation orders do not terminate merely because a court ended supervision of plan implementation. The District received reimbursement from the state for the cost of the programs from 1981-2000, indicating the programs are considered to be a component of the court-ordered desegregation plan. The state's continued audits and reimbursement of the District's desegregation costs are evidence that the Crawford order remained in effect past November 6, 1996. The legislative analyst recognized that Proposition 209 would not impact court-ordered desegregation plans, and the voters approved Proposition 209 with that understanding.
In its opposition to the District's motion for summary judgment, ACRF disputed the District's characterization of the 1981 final order. ACRF disputed that the order mandated the Magnet and PWT programs or required the District to use race as a selection criterion. Moreover, Judge Robert Lopez ordered the writ discharged and vacated all outstanding orders.
ACRF did not dispute that Judge Lopez's 1981 Crawford order has never been reversed, overruled, vacated, revoked, modified, or withdrawn by any court. It did contend "the Crawford order itself discharged the writ and terminated the Court's jurisdiction over the Defendant's integration efforts." ACRF disputed that costs of the Magnet and PWT programs were reimbursed by the state for court-ordered ...