The Wall Street Journal

Tuesday, May 26, 1998

When Desegregation Turns Into Discrimination

By John C. Yoo and Eric M. George

"We do not classify any student by race," the lawyer representing the San Francisco school district told the Ninth Circuit Court of Appeals last month. "Students classify themselves and then we assign them to their schools."

So began the legal defense of a racial quota system that for 15 years has been imposed on every public-school student in San Francisco. More than 40 years after Brown v. Board of Education, the self-proclaimed inheritors of the civil rights movement of the 1950s and 1960s have been reduced to such doublespeak -- all in defense of an unconstitutional school admissions system that discriminates against children because of the color of their skin.

The legal odyssey that produced this result was born of a 1983 settlement between city and state school authorities and the National Association for the Advancement of Colored People. Federal Judge William Orrick transformed the agreement into a consent decree that classifies each of the 63,000 public- school students into one of nine ethnic and racial categories: American Indian, Black, Chinese, Filipino, Japanese, Korean, Spanish-surnamed, Other White and Other Nonwhite. It then requires reassignment of students if their enrollment would drive their racial group's proportion of the student body above a 45% quota. Specialized schools, such as top-ranked Lowell High School -- the alma mater of the late Gov. Edmund Brown, Supreme Court Justice Stephen Breyer and several Nobel laureates -- are limited to no more than 40% of any racial group.

Judge Orrick justified the racial quotas with a single sentence in the consent decree. In it, the school authorities and the NAACP stipulated that evidence of segregation within San Francisco's schools could be produced -- even though no court, including Judge Orrick's, has ever found San Francisco's schools to be segregated. The U.S. Supreme Court has ruled that government may use racial quotas only in the rarest of circumstances, such as when state authorities are deliberately resisting federal orders requiring desegregation. This is not the case in San Francisco, as the district judge found both before and after the imposition of the racial quotas.

The one sentence in the consent decree has prevented children of Chinese heritage from attending schools that are "capped out" of their race. In 1994, several schoolchildren filed a class-action lawsuit against the state, the school district and the NAACP challenging the consent decree as a denial of their rights under the Equal Protection Clause of the 14th Amendment. Among the plaintiffs was Patrick Wong, then 14, who was denied admission to Lowell even though his test scores and grade point average were higher than those attained by members of other races who were admitted. Brian Ho and Hillary Chin, five and eight respectively in 1994, were kept out of their neighborhood elementary schools because they were of the "wrong" race.

None of the plaintiffs were even alive at the time of the consent decree's entry, not to mention that none of them participated in the "segregation" that supposedly pervaded the San Francisco schools back then. In 1996, the plaintiffs asked the judge to throw out the quotas without a trial, on the ground that the quotas were not appropriately tailored to remedy any previous state discrimination, as the Supreme Court requires. Rejecting their claim, Judge Orrick instead found last summer that a trial was necessary to determine whether the consent decree had eliminated all remnants of segregation in the school district -- despite the absence of any judicial finding that segregation had ever existed. The plaintiffs then took the unusual step of immediately appealing Judge Orrick's ruling to the Ninth Circuit Court of Appeals, which is expected to issue its ruling by this fall.

Like the quota advocates who settled a Piscataway, N.J., case in which a white teacher was laid off before the Supreme Court could issue its opinion, the last thing the defense wants is for the Ninth Circuit to issue a decision on the merits of racial quotas and preferences. Instead, in oral arguments the defense attorneys urged that the case be sent back to the district court, apparently hoping that an expensive and lengthy trial would prolong the quotas. The three judges on the panel seemed skeptical and demanded that the NAACP and the school district point to any evidence of past or present segregation that could justify the quotas.

The defense's problem is that at the time the quotas were imposed, no compelling evidence of segregation could be found, eliminating any constitutional, political or moral justification for them. This point is hammered home by the fact that one of the defendants -- the state Board of Education -- has done an about-face and now supports the plaintiffs. The 11- member board, which is responsible for setting California's educational policy, reversed its position last summer at the behest of Gov. Pete Wilson.

Not all of California's educational establishment sees things in the same light. The state superintendent of public instruction, Delaine Eastin, who is responsible for administering California's educational policy, claims that San Francisco's racial quotas are justified. Caught between these two sides is the third component of the state's educational triumvirate, the state Department of Education. That bureaucracy has been forced into temporary neutrality in this litigation, pending resolution of a subsidiary court battle that will decide which authority -- the governor-appointed board or the elected superintendent -- has the authority to determine its litigation position.

The efforts of the superintendent, the school district and the NAACP to avoid a Ninth Circuit ruling on the merits underscore the weakness of their case. Such stalling tactics might work in draining the limited resources of the Chinese-American schoolchildren, but it is unlikely to hold back the will of the people of California to end racial discrimination, as expressed in Proposition 209. Eventually the courts must decide whether, after nearly 45 years, Brown v. Board of Education justifies a desegregation plan that imposes the very discrimination it sought to eliminate.

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Mr. Yoo, an acting professor of law at the Boalt Hall School of Law, University of California at Berkeley, argued the case of the California State Board of Education before the Ninth Circuit. Mr. George is a deputy legal affairs secretary to Gov. Wilson.