The Recorder

San Francisco

November 10, 2004, Wednesday

SECTION: NEWS; Pg. 1

Old problem returning to old case

By Jeff Chorney

When U.S. District Judge William Alsup inherited NAACP v. San Francisco Unified School District, he took over a case that helped define the civil rights legacy of the legendary Judge William Orrick.

The suit, filed in 1978 by the San Francisco chapter of the National Association for the Advancement of Colored People, was intended to cure segregation in city schools. Eventually, in a settlement approved by Orrick, schools agreed to operate under a federal consent decree.

Orrick kept the case for more than 20 years, and OK'd a series of controversial adjustments during his final days on the bench that forbade the use of race as a factor in school admissions. Orrick died last year.

Now the matter, one of the longest running Northern District cases, could turn into a legendary headache for Alsup.

The decree is set to expire in a little more than a year, and Alsup is being asked to extend it - over the objections of at least one of the parties in the case.

According to a court-appointed monitor, schools have actually become more segregated since the decree was modified in 2001. More alarmingly, the monitor says minority student performance is suffering under the current conditions of the decree.

"In light of our findings over the past eight-year period, we have concluded that the current student assignment plan should be modified immediately, and that the relevant parties should seriously consider replacing it - in its entirety - as soon as possible," wrote monitor Stuart Biegel, a UCLA professor. "We continue to find that while the plan was a good faith effort ... it has clearly not furthered either the racial and ethnic desegregation goals or the academic achievement goals of the decree."

In documents filed with the court, Biegel says the consent decree needs to be extended. Biegel told the court that one year is not enough time to improve a situation that only seems to be getting worse.

Biegel also wants to see race used as a factor to help determine which kids go to which schools.

But there's a problem.

The school district has been prohibited from using race in making assignments since 2001. That's because of a lawsuit filed in the 1990s by a group representing Chinese students.

The "Ho plaintiffs," as they are known, argued that the consent decree was unfairly shutting Chinese students out of some schools because of the racial quotas that were put in place as a result of the original settlement between the NAACP and schools.

To settle their suit, the Ho plaintiffs were brought into the consent decree, and schools began using non-racial factors to determine which kids should go where. The race-neutral criteria include whether families receive federal assistance, whether English is spoken at the home, whether the child's mother has a high school education and other socioeconomic indicators. In addition, the Ho suit for the first time defined an ending to the consent decree.

"We feel the case has to come to an end," said David Levine, one of the lawyers for the Ho plaintiffs. "Our view is the Supreme Court has made it unmistakably clear that federal courts have to terminate jurisdiction."

During the negotiations that resulted in the 2001 settlement, the Ho plaintiffs buttressed their strategy with a visit to the Ninth Circuit U.S. Court of Appeals, which criticized the use of racial quotas.

If no party could make the requisite showing allowing the use of race in the assignment system in 1999, "I suggest to you that they cannot do it in 2004-05," Levine said.

Levine, who is a professor at Hastings College of the Law, said the consent decree should end because "there's no proof that anything going on now is a vestige" of the pre-1978 segregation.

If Alsup, who did civil rights work in the South after graduating from law school, agrees, the decree will expire automatically. But if Alsup decides to go with Biegel's advice, he will have to issue a court order to extend the decree.

The judge won't just be listening to the Ho plaintiffs. He'll also have to contend with the NAACP, the local school district and state administrators, who have been working on the issue since Biegel raised the alarm earlier this year.

The NAACP would also like to see the consent decree extended, said solo practitioner Peter Cohn of Petaluma, who works on the case with the Lawyers' Committee for Civil Rights, New York solo Thomas Atkins and lawyers from Bingham McCutchen.

Cohn said the NAACP agrees with Biegel that the school assignment program needs to be improved. And the original desegregation guidelines, which used race, could be "the easiest way," Cohn said.

He said all the parties have been talking with each other and Biegel to negotiate a solution. "This has been a continuing challenge," Cohn said.

The school district's position is more complicated.

When it settled with the Ho plaintiffs in 2001, the school district agreed to take a position against extending the consent decree. Yet Dan Kelly, the president of the San Francisco school board, said recently he personally would like to see the decree extended.

"It's not like we need it, but, on the other hand, the consent decree provides a forum in which to work," Kelly said.

The schools have also received extra state funding over the years because of the decree. Kelly said he expects that money to continue even if the decree expires on schedule.

Kelly also recently introduced a school board resolution that would adopt Biegel's suggestion to bring race back in as a factor in figuring out where children should attend school.

The resolution has been referred to a committee and likely will not be voted on until early next year. Although the Ho plaintiffs are opposed to using race, as well as extending the decree, Kelly hopes to find a way to improve the schools.

"There is room in the original consent decree. Brown v. Board of Education set off a lot of controversy," said Kelly, referring to the historic Supreme Court decision that came out 50 years ago. "It's the 'how to do it' that's hard to figure out."

The cases are SF NAACP v. SF Unified School District, 78-1445, and Brian Ho v. SF Unified School District, 94-2418. A status conference before Alsup is scheduled for today.