Applicants are Americans of Chinese ancestry who seek a stay of a Federal District Court's order reassigning pupils of Chinese ancestry to elementary public schools in San Francisco. The order was made in a school desegregation case, the San Francisco Unified School District having submitted a comprehensive plan for desegregation which the District Court approved.
There are many minorities in the elementary schools of San Francisco; and while the opinion of the District Court mentions mostly the Blacks, there are in addition to whites, Chinese, Japanese, Filipinos, and Americans both of African and Spanish ancestry. The schools attended by the class here represented are filled predominantly with children of Chinese ancestry--in one 456 out of 482, in another 230 out of 289, and in a third, 1,074 out of 1,111.
Historically, California statutorily provided for the establishment of separate schools for children of Chinese ancestry.* That was the clasic case of de jure segrega-
* Until 1947, the California Education Code provided:
These provisions were eventually repealed. 1947 Cal.Stats., c. 737, 1. [404 U.S. 1215 , 1216] tion involved in Brown v. Board of Education, 347 U.S. 483 , relief ordered, 349 U.S. 294 . Schools once segregated by state action must be desegregated by state action, at least until the force of the earlier segregation policy has been dissipated. 'The objective today remains to eliminate from the public schools all vestiges of state-imposed segregation.' Swan v. Charlotte- Mecklenburg Board of Education, 402 U.S. 1, 15 , 1275, 28 L. Ed.2d 554. The District Court in the present case made findings that plainly indicate the force of the old policy has persisted: '(T)he school board ... has drawn school attendance lines, year after year, knowing that the lines maintain or heighten racial imbalance ....' And further, that no evidence has been tendered to show that since Brown I 'the San Francisco school authorities had ever changed any school attendance line for the purpose of reducing or eliminating racial imbalance.' Johnson v. San Francisco Unified School District, 339 F.Supp. 1315, 1319 (N.D.Cal. 1971).
Brown v. Board of Education was not written for Blacks alone. It rests on the Equal Protection Clause of the Fourteenth Amendment, one of the first beneficiaries of which were the Chinese people of San Francisco. See Yick Wo v. Hopkins, 118 U.S. 356 . The theme of our school desegregation cases extends to all [404 U.S. 1215 , 1217] racial minorities treated invidiously by a State or any of its agencies.
It is not for me to approve or disapprove the plan; that is a matter that goes to the merits and the appeal has not been heard. The plan, however, has earmarks of a thoughtful plan, at least measured by some of the thoughtful concerns of the Chinese community. The District Court ruled:
And the District Court concluded:
I see no reason to take contrary action. So far as the overriding questions of law are concerned the decision of the District Court seems well within bounds. See Keyes v. Denver School District, 396 U.S. 1215 (Mr. Justice Brennan). It would take some intervening event or some novel question of law to induce me as Circuit Justice to overrule the considered action of my Brethren of the Ninth Circuit.
Petition for stay denied.