Students' rights to equal access to educational opportunities have been debated in the U.S. since the country's origins. Yet, it was not until 1954 that this debate came to the forefront of the American consciousness. After years of contesting the right of states to establish separate school systems for White and minority students,1 Thurgood Marshall and the NAACP came before the Supreme Court to challenge the doctrine of 'separate but equal' head on. In Brown v. Board of Education of Topeka (Brown I),2 the Supreme Court held that "in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal."3 Brown was the first case to focus the nation's attention on students' access to equal educational opportunities.4 The unanimous Brown Court placed a strong emphasis on the importance of access to equal educational opportunities:
Moreover, the case sparked an entirely new way of conceptualizing, from a legal perspective, what constitutes access to equal educational opportunities. Brown set the stage for other court challenges to increase access for students who had been excluded from educational opportunities. These challenges have included equity in education finance,6 the availability of primary language instruction,7 reasonable accommodations for students with disabilities,8 and challenging segregation in the classroom through tracking.9
In addition to the primarily reactive efforts such litigation has evoked, in recent years some states have sought more proactive measures as well. These measures include programs, implemented by states and districts, which are, at least in part, intended to increase access to equal educational opportunities for historically excluded students. In California, the Charter School Act was created with the legislative intent that it would promote greater access to educational opportunities for poor and minority students by placing a special emphasis on academically low achieving students.10 In Los Angeles, the District adopted LEARN with the expectation that it would improve all schools in the District and create greater access to equal educational opportunities for all students.
This paper provides an outline of the origins and present workings of California desegregation, bilingual education and proactive programs and policies that impact or have the potential to impact students' access to equal educational opportunities in the Los Angeles Unified School District (LAUSD).11 The primary purpose of the paper is to suggest the implications and issues related to equal educational opportunities that are likely to come into play should the LAUSD be reorganized under currently debated initiatives to "break up" the District into two or more smaller school districts. The authors do not pursue a position on the issue of possible district reorganization, but rather offer an analysis of issues relevant to present debates concerning break-up policies.
There are no specific precedents for taking a district as massive as Los Angeles with its 700 plus schools and nearly 700,000 students and re-structuring its operations into smaller districts. On the other hand, California does have a system of laws and regulations regarding the reorganization of school districts that bear on magnet schools and the Permits with Transportation program, bilingual education, charter schools, LEARN schools12 and Senate Bill 699 (SB 699 or the Hayden Bill).
SB 699 identifies conditions under which a school district reorganization may take place. The legislation added a new California Education Code Section, 35730.1, which provides in pertinent part that "any reorganization of a school district with more than 500,000 pupils in average daily attendance shall require that each new district created meet...[among other things]...the following conditions:
(e) Preservation of the policies used by magnet schools, charter schools, site-based management initiatives, and the LEARN program as those policies already exist in practice or pursuant to law.
(h) The formation of the new school districts does not result in the diminution of minority protections.
(I) The maintenance of the conditions of all collective bargaining agreements until their expirations."
The proponents of break-up legislation would like to see changes in rules and regulations that would facilitate the achievement of the dramatic reorganizations they are interested in and these proposals have implications for all of the above mentioned areas. And if re-organized, the new school districts would be expected to exist within the basic structure of these programs that have evolved over the years, in addition to changes in policies resulting from future legislation, initiatives, or court decisions.
To understand how these provisions might play out in the event of a break-up or break-off, the recent development of relevant education law at both the federal and state levels must be examined.
II. Desegregation
LAUSD has a history of segregating students on the basis of race. In response to litigation, the District implemented measures to voluntarily desegregate its schools. LAUSD has made a commitment to continued desegregation efforts. This commitment, however, is based on District policy, rather than federal or state law, as is the case in other districts. A prospective LAUSD break-up or break-off will inevitably impact the District's students who are attending magnet schools or receive permits with transportation as part of the District's voluntary desegregation programs. What follows is a presentation of the history of desegregation litigation and the evolution of the magnet and permits with transpiration programs in the District. After this section is a discussion of the existing magnet programs and the issues and questions that must be considered in the context of a break-up or break-off.
Federal Efforts
Brown I opened the doors for an end to segregation in public schools.13 The initial impact of the Brown I decision on public education was to shatter the idea of racial classification in schools. One year after the Supreme Court decided Brown I, the parties were back before the Court. In its second decision, Brown II,14 the Court emphasized dismantling local school systems built on invidious classifications and inequitable programs.15 As a direct result of the Court's ruling the federal government, through legislation and judicial actions, worked to secure equal educational opportunities for African Americans on a nationwide basis.16 Among the actions taken were 1) the defeat of proposals for federal aid to education that would have strengthened the dual school system; and 2) the insertion of nondiscrimination clauses by the Department of Health, Education, and Welfare (HEW) in contracts with colleges participating in National Defense Education Act programs. In addition to federal action, Black organizations and White liberals began to organize and work together in ways that forced confrontations with southern political leadership. Ultimately these challenges to the status quo led to the 1964 Civil Rights Act.17
In 1965 the primary purpose of federal financial assistance shifted from helping schools in general to implementing a remedy for failure to provide equal educational opportunity to African American children.18 This shift resulted in the passage of the Elementary and Secondary Education Act of 1965 and the issuance of enforcement guidelines for Title VI of the Civil Rights Act of 1964. Moreover, the Civil Rights Act empowered HEW to withhold federal funds from school districts that discriminated against African Americans.19 HEW also implemented earlier reform proposals granting the Attorney General the authority to file desegregation suits against local school boards that engaged in segregation.20
By the end of the 1960s, however, the doors of federal support for desegregation began to close. Resistance by state and local officials and discomfort on the part of a Republican-controlled Congress mounted as HEW heightened its demands for desegregation. By the third year of the Civil Rights Act's enforcement, the guidelines were frozen.21 Moreover, congressional efforts to limit HEW's enforcement of Title VI finally resulted in language that significantly decreased HEW's authority.22
State Efforts
On the state level, litigation by private citizens against their school districts continued in the South and spread to the North and West. Keyes v. School District No. 1, Denver, Colorado was the first lawsuit to be heard by the Supreme Court regarding northern segregated schools.23 Unlike the southern states, which specifically segregated schools through their laws, northern states did not have laws which required schools to segregate students based on race. So, while a plaintiff could not point to the laws of a northern state and demonstrate intentional segregation, the Keyes decision required plaintiffs to demonstrate that a school district had taken specific intentional actions designed to create or maintain racially segregated schools. Moreover, the Court required that plaintiffs demonstrate that the existence of currently segregated schools was a direct consequence of the intentional acts of district personnel. Thus, Keyes set the standard which plaintiffs would have to meet when bringing challenges in northern states against school districts for segregation in violation of the U.S. Constitution. While the Keyes case was the first case to reach the Court, lawsuits had been filed in courts across the North. In California, parents began their fight to demonstrate that schools in LAUSD were intentionally segregated in 1963.
Crawford v. Board of Education for the City of Los Angeles
As early as 1938 seven elementary and two secondary schools had been officially identified as segregated within LAUSD.24 The school District enacted policies and procedures which actively promoted segregated school sites until 1963. On August 1, 1963, the American Civil Liberties Union (ACLU), on behalf of a group of African American and Hispanic parents and their children, filed a complaint in Los Angeles Superior Court.25 These plaintiffs sought a declaratory judgment and injunction to compel Los Angeles City Board of Education to desegregate the schools in LAUSD.
Initially the plaintiffs hoped the School Board would act voluntarily to prepare and implement a master plan for the integration of the District. Therefore, between 1963 and 1968 outside of the filing of a few minor pleadings, no other judicial action was taken.
As it became clear that the Board was going to remain recalcitrant, the plaintiffs proceeded to trial on October 28, 1968. On February 11, 1970, the trial judge ruled in favor of the plaintiffs, finding that the Los Angeles city schools were de jure segregated.26
The court ordered the School Board submit a master plan for desegregation by June 1970 which was to go into effect by September 1970 with the requirement that every school in the District be no more than 50% and no less than 10% minority students.
The School Board appealed the trial court's judgment to California Court of Appeals which reversed the trial court's decision on March 10, 1975. Plaintiffs petitioned the Appellate Court for a rehearing. When the plaintiffs' petition for rehearing was denied, they appealed the Appellate Court's decision to the California State Supreme Court.
On June 28, 1976, the California State Supreme Court reversed Appellate Court's decision and affirmed the trial court's order, with the exception of the requirement that the School Board achieve specific racial and ethnic percentages within the District's schools.27
In its opinion, the Supreme Court recognized the importance of education in the lives of minority children and reiterated that in California, education has been explicitly recognized as a constitutionally defined fundamental interest because of the crucial role that education plays in "preserving an individual's opportunity to compete successfully in the economic market place, despite a disadvantaged background."28 Additionally, the Court held that the School Board had an affirmative duty under article 1, section 7, subdivision (a) of the California Constitution to attempt to alleviate segregated education and its harmful consequences, even if such segregation results from the application of a facially neutral state policy.29 Furthermore, the Court identified the School Board's refusal to utilize its authority to draw boundary zones for neighborhood schools to alleviate, insofar as possible, segregation in such schools.30
The Supreme Court did not base its decision on a finding of de jure or de facto segregation. Instead the Court held that the fact that the trial court had found segregation existed was sufficient and relied on the Jackson decision which held that a finding of de jure segregation was unnecessary.31 The Court stated:
In accordance with State Supreme Court's ruling, the School Board appointed a citizens' advisory committee, the Citizens' Advisory Committee on Student Integration (CACSI), to formulate a desegregation plan.
The District submitted its first desegregation plan to the court in March 1977. After this plan was rejected by the court, the District submitted "Plan II" in October 1977. The plan, titled "Integrated Educational Excellence Through Choice," involved large-scale mandatory reassignment of students on the basis of race. The trial court ordered the plan to be partially implemented beginning in the fall of 1978.33
Plan II went into effect in September 1978. The plan called for the mandatory reassignment of approximately 40,000 students attending grades 4 through 8 of every school with a White enrollment over 70%. The plan also provided for voluntary desegregation through magnet schools and permit with transportation programs.
In the fall of 1979, the trial court commenced renewed hearings to reexamine Plan II and consider alternative plans. For the first time, the District's Board indicated to the court that mandatory busing had failed to achieve its objective of desegregating the city schools and that it desired to return to an all-voluntary plan.34
On November 6, 1979 the voters of California approved Proposition I, an initiative measure which amended article I, section 7, subdivision (a), of the California Constitution. The effect of the amendment was to prohibit state courts, in desegregation cases, from ordering school boards to mandatorily reassign and transport pupils on the basis of race, except to remedy a violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution under circumstances which would authorize a federal court under federal decisional law to issue such an order. 35
In May 1980 the trial court issued a new order requiring substantial reassignment and transportation of students in the District (Plan III). While the parties were awaiting the outcome of the appeal filed with regard to Plan III, the California Supreme Court found Proposition 1 to be constitutional and vacated the trial court's orders establishing Plan III and remanded the matter to the trial court for further proceedings consistent with the Court's opinion.36
The District, upon remand, submitted a new desegregation plan (Plan IV) which relied entirely on the voluntary reassignment of students. Finally, in September 1981 the trial court gave its final approval to Plan IV and terminated all jurisdiction over the case except for the determination of pending applications by plaintiffs and intervenors for recovery of attorneys' fees from the District.37
Magnet Schools In LAUSD
Magnet schools were one of two voluntary desegregation programs instituted as the District's response to court-ordered desegregation under Crawford.38 The first magnet school opened in 1979. Although the District has not been under a court order since Plan IV was submitted and accepted by the court, the District has taken the position that it has a legal responsibility to keeping the District desegregated through these programs. Moreover, LAUSD has communicated this commitment to the Department of Education in Sacramento and for purposes of desegregation funding the Department of Education has recognized the District's ongoing commitment.
The popularity of the magnet programs has been so overwhelming that by 1995 the District had a total of 132 magnet schools serving approximately 42,000 students with a waiting list of approximately 30,000 students.39 Although magnet schools are extremely popular and most have long waiting lists, only approximately 5% of the student population in the District actually attend magnet schools.40 Magnet programs receive both federal and state desegregation monies. State desegregation funds reimburse the District for 80% of the cost of transporting students from anywhere in the District to their magnet school and provide an additional $45/year per pupil. State funding also pays for the magnet school coordinator and clerk, and, in the case of whole-school magnet, the principal.41
The first magnet schools in LAUSD were created in 1979 and were located in the more affluent areas of the city. This changed in the mid 1980s when the School Board passed a resolution calling for the creation of magnet schools in East and South Central Los Angeles.42 Since that time, distribution of magnets has become more equally spread across the District, even though the number remains skewed in favor of the more affluent communities.43 More than 15,000 of the Districts' magnet slots are either on the westside of town or in the San Fernando Valley.
Although few magnet schools maintain admissions criteria and LAUSD has adopted random lottery systems to place students in magnet schools,44 the waiting lists for many of these programs are extremely long.45 Of the 132 magnet school programs, 29 are considered "Gifted and High Ability Centers" or "Highly Gifted Centers," and are allowed to screen students based on identified "giftedness" by a school psychologist, high standardized test scores, or a high IQ. The remaining 103 magnet schools have no admissions criteria and virtually no control over which students they enroll. Students are assigned to these "non-gifted" magnet schools by the District's Office of Student Integration. The Office of Student Integration processes applications through a randomized lottery system in an attempt to maintain a 30% White to 70% non-White "racial balance" at each magnet school.46
The prospective impact of Section (d) of the Hayden Bill on LAUSD magnet programs in the event of a break-up or break-off is unclear. Section (d) requires that "any reorganization of a school with more than 500,000 pupils in average daily attendance shall require that each new district created meets the following conditions . . . (d) Compliance with Crawford v. Board of Education, 17 Cal. 3d 280 . . ."47 Therefore, it appears that the legislature intended to prevent any reorganization of the District that would lead to further segregation of the student population. Moreover, the argument could be made that the Legislature intended for the voluntary desegregation programs implemented as a result of Crawford to be continued regardless of any new organization of the District.
Yet, the Hayden Bill later ambiguously states that: "policies used by magnet schools, charter schools, site-based management initiatives, and the LEARN program as those policies already exist in practice or pursuant to law" must be preserved.48 While policies must be preserved, the legislation does not require that the actual schools that have been established in accordance with those policies must be preserved. Therefore, the question arises as to whether or not a new district created out of a break-up or break-off would be required to continue the voluntary desegregation programs located in the new district.
It has been recently argued by the attorneys for United Teachers Los Angeles (UTLA) that, pursuant to the Crawford cases, any attempt to reorganize a school district must include reasonably feasible steps to alleviate segregation in schools.49 Thus, any reorganization must not result in new districts that are more segregated than LAUSD as it presently exists, or undermine the desegregation programs that are currently in place in the District. Should the state or local school authorities act in a way that would lead to the creation of more segregated districts or the removal of existing desegregation programs, those officials could be held to have acted unconstitutionally.50 UTLA's assertion is supported by case law. In Crawford II, the Court stated that "a school board in this state is not constitutionally free to adopt any facially neutral policy it chooses, oblivious to such policy's actual differential impact on the minority children in its schools."51 Moreover, "officials in some circumstances bear an affirmative obligation to design programs or frame policies so as to avoid discriminatory results.52 Consequently, any attempt to reorganize LAUSD must carefully consider the effects such a reorganization will have on the minority populations of both the new and old districts.53
The attorneys for UTLA further assert that it is also likely that any reorganization of LAUSD would be subject to federal case law.54 In several cases the United States Supreme Court forbade the creation of new school districts which would adversely affect the effectiveness of earlier desegregation decrees. In these cases the Court held that:
While these cases would likely be applicable to a situation involving court ordered desegregation, the fact that LAUSD's desegregation programs are voluntary, that it is arguable that the district is still in the "process of dismantling a dual system," that the District is not subject to an on-going court order, and in light of the Supreme Court's most recent decision in Freeman v. Pitts,56 it is less likely that a federal court would evaluate a reorganization of LAUSD under federal case law.57
In addition to questions about the maintenance of already existing programs, questions regarding transportation and funding for these programs also must be addressed. Any reorganization plan that maintains the existing desegregation programs will have to consider whether or not students attending magnet schools prior to the reorganization would be entitled to continue attending these schools after the reorganization. It is arguable that SB 699's requirement that Crawford be complied with requires that students from the pre-reorganized District be allowed to continue to attend these magnet schools regardless of their location. If students from outside the new district attend schools within the new district (and vice versa), transportation will be necessary.
Although the legislation does not address this issue, the new districts may be required to continue desegregation programs that require the provision of transportation to students attending their schools. The burden would most likely be placed on the receiving district because that district would also be receiving the ADA58 for those students. Nor does the legislation address which district, if any, will get desegregation funds. On this point, though, it may be arguable that any district continuing to engage in voluntary desegregation programs pursuant to Crawford and Educ. Code ¤ 35730.1(d) would be entitled to state desegregation funds.
On the other hand, should students not be allowed to attend the magnet schools across district boundaries after the reorganization, each district will have to determine whether the magnet schools will have student populations large enough to remain viable. Moreover, reorganized and newly created districts will have to determine whether these new districts create further segregation in violation of Crawford.
Permits with Transportation Program
Although presently a much smaller program than the magnet program, the Permits with Transportation (PWT) program will also be affected by any reorganization of the District. The purpose of the PWT program is to "provide all students with an integrated experience, placing Hispanic, Black, Asian and Other Non-Anglo students in integrated schools, while providing opportunities for White students to attend Hispanic, Black, Asian and Other Non-Anglo schools."59 The PWT program serves a portion of the students in the District, allowing them to attend schools other than the school closest to their home in order to increase desegregation.
The primary question which will need to be addressed is whether students presently receiving permits will be entitled to receive them after a reorganization takes place. The PWT program is not enumerated in the Hayden Bill. In addition, the application states that students must be residents of LAUSD and living within a PWT sending school area in order to participate in the program.60 Consequently, on the surface, it appears that PWTs would not extend into any new district, nor would a new district be required to accept students already receiving a permit from LAUSD. But this analysis does not address the impact on students already receiving PWTs to attend schools which are no longer part of LAUSD. The Hayden Bill does require continued compliance with Crawford. As the magnet and PWT programs are the only major efforts underway to enforce Crawford, the argument can be made that one or both programs are minimally necessary to comply with the Hayden Bill requirement.
As with magnet schools, if a new district were to agree to accept students receiving permits, the question of which district is required to provide transportation and cover the cost is unanswered by the Hayden Bill. As mentioned above, if a district is not receiving desegregation funding then it would arguably be up to LAUSD -- assuming it is still receiving adequate desegregation funds to support the program -- to provide transportation. Again, as mentioned with regard to magnet schools, it is likely that a district could argue it is entitled to receive desegregation funds if it is attempting to comply with Crawford should the district be inclined to do so.
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