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District Court of Appeal, Second District, Division 2, California.

Jay R. JACKSON, Jr., a Minor, etc., Plaintiff and Appellant, v. PASADENA CITY SCHOOL DISTRICT et al., Defendants and Respondents.

Civ. 26180.

Decided: December 10, 1962

Samuel C. Sheats, Loren Miller, A. L. Wirin, Los Angeles, for appellant. Harold W. Kennedy, County Counsel, James W. Briggs, Deputy County Counsel, for respondents. Robert E. Burke, Los Angeles, Curtis J. Berger, amici curiae in support of appellant. Norman G. Rudman, Hollywood, Ben Margolis, Los Angeles, Irving Rosenfeld, Van Nuys, Charles B. Stewart, Jr., Los Angeles, Harriett Buhai, Edward Mosk, Hollywood, amici curiae on behalf of the National Lawyers Guild (Los Angeles-Hollywood-Beverly Hills Chapters) in support of appellant.

This is a school racial segregation case. Plaintiff in this mandate proceeding seeks to compel the Pasadena School Board to permit him to transfer from Washington Junior High School to Elliott Junior High School.

The background leading up to the instant case is substantially as follows: Prior to July 1961, the students of junior high school age in the Linda Vista section of Pasadena had attended La Canada Junior High School, which apparently was a part of the Pasadena School District, at least in so far as that junior high school was concerned. But as a result of unification proceedings by the La Canada School District the junior high school ceased to be a part of the Pasadena system and it therefore became necessary for the Pasadena School Board to assign the junior high school students living in the Linda Vista elementary school area to a junior high school in Pasadena. It is alleged that only white children live in the Linda Vista section. The school board placed the Linda Vista junior high students in the McKinley Junior High School attendance zone. It is alleged that this was the result of a gerrymandering technique; that the Linda Vista area more naturally belonged in the Washington Junior High attendance zone where plaintiff, a Negro boy of junior high school age, lives. It is stated that Linda Vista elementary school zone is contiguous to the Washington Junior High zone and closer to Washington Junior High School than it is to any other junior high in the district. Reference to maps (Exhs. A and B) attached to the petition discloses that the entire southern boundary of Linda Vista elementary school attendance zone is contiguous to the McKinley Junior High attendance zone as is also the southernmost approximate half mile (based on the scale used in Exh. B) of the easterly boundary of the Linda Vista elementary attendance zone. It is alleged that Washington Junior High has an enrollment predominantly of Negroes and other racial minorities and that it has a higher ratio of minority group pupils than McKinley Junior High. It is then asserted that this action was taken by the Board for the purpose of and had the effect of establishing Washington Junior High as ‘a racially segregated school which is inherently inferior to other junior high schools in defendant SCHOOL DISTRICT; that requiring plaintiff to attend such segregated school results in inequality of opportunity for public school education for him, in violation of the Fourteenth Amendment * * * and of the laws and policy of this state.’ Plaintiff has requested the issuance of a permit to transfer from Washington Junior High to Elliott Junior High, which is also in the Pasadena district, but such requested transfer has been denied by the school authorities.

Disregarding the conclusionary allegations of wilful, deliberate, unreasonable, arbitrary, etc. and stripping the petition down to its bare facts, it reveals that the school board on July 18, 1961, altered the boundaries of the attendance zone of McKinley Junior High School by adding thereto the all-white area that comprised the Linda Vista elementary school zone and the students of junior high school age who resided there; that Washington Junior High School is nearer Linda Vista than is McKinley Junior High; that the Linda Vista area is contiguous to both McKinley and Washington attendance zones; that Washington is predominantly non-Caucasian; and that there is a higher ratio of minority group pupils attending Washington Junior High than McKinley Junior High. There is no allegation of fact showing that Washington Junior High, prior to July 18, 1961, was a racially segregated school; there is no allegation of fact showing that the action on July 18, 19618 in any way changed the on July 18, 1961, in any way changed the Junior High. In fact, the allegations referred to above clearly show that Washington Junior High was not actually segregated for it is alleged that Washington Junior High has ‘an enrollment predominantly of Negroes and other racial, nationality and ethnic minorities.’ Implicit in this allegation is the fact that a substantial proportion of the students at Washington are Caucasian. Notwithstanding the allegations in the earlier part of the petition, it is finally charged that the action of the board resulted in the adoption and maintenance of the Washington Junior High School as a ‘racially segregated school.’

The board filed a general demurrer which was sustained without leave to amend. Plaintiff has appealed from the ensuing judgment.

We come now to the definitive question on this appeal: Does the petition allege facts showing that plaintiff is entitled to any relief?

Initially it is important to bear in mind that procedurally the questions here involved are raised by the demurrer of defendants which was sustained without leave to amend. Hence all of the facts that are alleged are admitted but conclusionary allegations are not. Apposite on this latter point is the statement of the court in Oppenheimer v. Ashburn, 173 Cal.App.2d 624, 343 P.2d 931, upholding the sustaining of a general demurrer. At page 628, 343 P.2d at page 933 the court stated: ‘Obviously the conclusionary averments of the instant complaint are not admitted by demurrer (Howard v. City of Los Angeles, 1956, 143 Cal.App.2d 195, 197, 299 P.2d 294); they tender no issues of fact (Branham v. Mayor and Common Council of City of San Jose, 1864, 24 Cal. 585); 'add nothing to the substantive averments of the complaint’ (Vallindras v. Massachusetts Bonding & Ins. Co., 1954, 42 Cal.2d 149, 151, 265 P.2d 907, 909); and are valueless in the disposition of the true issues of a controversy.'

Also, it should be noted that a school board has discretion in determining the area that a particular school shall serve and in requiring the students in that area to attend such school, and in the matter of granting or refusing transfers in particular cases to other schools. Section 984 of the Education Code provides that the governing board of any school district shall: ‘(a) Prescribe and enforce rules not inconsistent with law or with the rules prescribed by the State Board of Education, for its own government, and for the government of the schools under its jurisdiction.’

In 1931, the Attorney General advised that this rule-making power of school boards included the general power to establish intradistrict school attendance zones. In 1957 the Attorney General re-affirmed this advice (29 Ops.Cal.Atty.Gen. 63). This is in harmony with the law generally. On the matter of transfers, Boson v. Rippy, 5 Cir., 285 F.2d 43, p. 48, points out that ‘the Board has a wide discretion in transferring pupils from school to school.’ It follows that the action of the board in the matters here involved may not be interfered with unless the action was unreasonable or arbitrary—of such a character as to constitute an abuse of its discretion.

We now examine the factual picture presented by the petition in the light of these principles. The petition does not allege that prior to the board's determination of the attendance zone to which the junior high students from Linda Vista would be assigned that Washington Junior High (in which are plaintiff resides) was a segregated school. In fact, quite the contrary appears for it is stated that Washington Junior High ‘has an enrollment predominantly of Negroes and other racial, nationality and ethnic minorities' and that McKinley Junior High ‘contains a considerably smaller proportion of Negroes and other minorities' than does Washington Junior High. Implicit in these allegations is the fact that a substantial proportion of the students attending Washington Junior High are white. These allegations demonstrate that Washington Junior High was not in fact a segregated school. It is then alleged that the assignment of Linda Vista students to McKinley Junior High was, inter alia, ‘for the purpose of instituting * * * racial segregation at Washington Junior High School’ and that this result was ‘in fact achieved’ by the board's action. It is further alleged that the action of the board ‘makes, constitutes and establishes Washington Junior High School a racially segregated school * * *.’ The charge that the board's action in assigning the Linda Vista junior high students to McKinley rather than to Washington made the latter ‘a racially segregated school’ is purely fictitious—without any factual foundation for such action did not in any degree change the racial makeup of Washington. The allegation that the board ‘should have’ placed the Linda Vista students in the Washington Junior High attendance zone is purely a conclusion and adds nothing to plaintiff's substantive allegations. (Oppenheimer v. Ashburn, supra; Vallindras v. Massachusetts, etc., Ins. Co., 42 Cal.2d 149, 155, 265 P.2d 907.) Of like character is the charge that the board ‘illegally manipulated’ etc. the McKinley attendance zone so as to include the Linda Vista students. It is unnecessary to enumerate other averments that are purely conclusionary and therefore of no assistance.

Likewise of no significance is plaintiff's charge that he board assigned the Linda Vista students to McKinley for the purpose of making Washington ‘a racially segregated school.’ In the context of this type of case the crucial fact is not the purpose which motivated the board in assigning the Linda Vista students to McKinley but rather did such action result in making Washington a segregated school? If in fact the challenged action had produced such result, it would have to be struck down whether brought about ‘ingeniously or ingenuously’ (Cooper v. Aaron, 358 U.S. 1, 16, 78 S.Ct. 1401, 3 L.Ed.2d 5), whether deliberately or innocently. Since, however, the board had the legal right to take the action it did take and since such action did not constitute Washington ‘a racially segregated school’, the purpose or motive of the board in taking the action is without significance and therefore immaterial (Board of Education v. Swan, 41 Cal.2d 546, 555, 261 P.2d 261) and did not serve to give plaintiff any legal rights he did not otherwise have. In the case last cited the court stated (p. 555, 261 P.2d p. 267): ‘The plaintiff board had the unquestioned legal right to institute proceedings looking toward defendant's dismissal; and it is well settled that where there is a legal right to do a particular act, the motive which prompted the act is immaterial. [Citations.] Therefore an inquiry into extraneous facts to determine possible improper motives on the part of plaintiff would not be justified.’

When the geographical relation of Linda Vista to both McKinley and Washington attendance zones, and the racial makeup of the student body of Washington are put in realistic focus, and it is realized that the action of the board in assigning the Linda Vista Junior High students to McKinley did not in the slightest change the racial makeup of the Washington student body, it becomes apparent that there is no factual foundation for the charge that by its action the board made Washington Junior High ‘a racially segregated school.’ It therefore follows that in taking such action the Board did not abuse its discretion. Since the asserted foundation on which plaintiff bases his request for a transfer from Washington to Elliott Junior High has vanished, he has no valid right to compel the board to grant him the requested transfer. Consequently the board did not abuse its discretion in denying his request.

Plaintiff relies heavily on Taylor v. Board of Ed. etc. of New Rochelle, 2 Cir., 294 F.2d 36. That case is readily distinguishable on its facts from the one at bench. Only a few of the differences need be mentioned by way of illustration, e. g. (1) in 1930, the school board instituted a policy of gerrymandering school attendance zones which led to confining Negroes within the Lincoln School attendance zone by redrawing the attendance zone boundaries to coincide with Negro-population movements (D.C., 191 F.Supp. 181, 184); (2) the board adopted a policy of permitting white children remaining in the Lincoln attendance zone to transfer to other elementary schools (Id. p. 185); (3) the result of this combination of events was that ‘Lincoln School in 1949 was 100 per cent Negro’ (Id. 294 F.2d 36, 38); and (4) that at the time of the trial court's decision in 1961 Lincoln had ‘94 per cent Negro enrollment.’ (Id. p. 39.)

Burks v. Poppy Construction Co., 57 Cal.2d 463, 20 Cal.Rptr. 609, 370 P.2d 313, relied on by plaintiff, is based on specific legislative enactments—the Unruh Civil Rights Act [Civ.Code, §§ 51, 52] which deals with discrimination in ‘business establishments' and the Hawkins Act [Health & Safety Code, §§ 35700–35741] which relates to discrimination in ‘publicly assisted housing accommodations'. Plaintiff also relies on Abstract Inv. Co. v. Hutchinson, 204 A.C.A. 271, 22 Cal.Rptr. 309. This case deals with the right of a defendant in an unlawful detainer action to present evidence in support of his affirmative defense that the real reason for his eviction was the fact that he was a Negro. Obviously neither of these cases deals with the problem at bench.

One of the briefs of amici curiae seeks to inject the theory of ‘affirmative integration'1 into this case. The complaint is obviously not drawn on that theory and it is not mentioned in plaintiff's opening brief. In oral argument, Mr. Wirin, in response to an inquiry from the bench as to whether he was advocating the doctrine of affirmative integration, replied ‘No.’ He later stated ‘* * * I am not making, and I do not understand Mr. Miller [who had preceded Mr. Wirin] to be making that argument in this case * * *.’ In this state of the record that question is not here an issue.

Finally, did the court abuse its discretion in sustaining the demurrer without leave to amend? At no time has plaintiff indicated his ability to plead a better case. In such circumstances our recent quotation in Starbird v. Lane, 203 A.C.A. 259, 274, 21 Cal.Rptr. 280 from Schultz v. Steinberg, 182 Cal.App.2d 134, at p. 140, 5 Cal.Rptr. 890 at p. 895, provides a complete answer to this point: ‘While abuse of discretion in sustaining a demurrer without leave to amend is reviewable on appeal even in the absence of a request for leave to amend [citations] nevertheless, the burden of showing such abuse rests upon the appellant and a reviewing court should reverse only where there is manifest an abuse of discretion in refusing leave to amend. [Citations.] Abuse of discretion is not shown where it is not indicated as to the manner in which it is proposed to amend nor the nature of the proposed amendment. [Citations.] Neither before the trial court nor before this court has plaintiff indicated the nature of a proposed amendment or the manner in which he would amend his complaint. Plaintiff has therefore failed to establish reversible error in the dismissal of the action * * *.’

The judgment is affirmed.


1.  For an explanation of ‘affirmative integration’ see Branche v. Board of Education etc., D.C., 204 F.Supp. 150. But c. f. Evans v. Buchanan, D.C., 207 F.Supp. 820.

FOX, Presiding Justice.

ASHBURN and HERNDON, JJ., concur.