CRAWFORD v. BOARD OF EDUCATION OF CITY OF LOS ANGELES

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Court of Appeal, Second District, Division 3, California.

Mary Ellen CRAWFORD, etc., et al., Plaintiff and Respondents, v. BOARD OF EDUCATION OF the CITY OF LOS ANGELES, Defendant and Appellant.

Civ. 37750.

Decided: March 10, 1975

John H. Larson, County Counsel, Alfred Charles De Flon, Deputy County Counsel, and Jerry F. Halverson, Los Angeles, for appellant. Bayard F. Berman, William T. Rintala, Peter C. Smoot and Michael Bergman, Beverly Hills, for respondents. Howard I. Friedman, Sidney J. Machtinger, Herbert A. Bernhard, Maxwell E. Greenberg, Los Angeles, Stanley W. Levy, Bertram K. Massing, Beverly Hills, Robert L. Weil, David Ziskind, Jack Levine, Allan J. Greenberg, and Nathan L. Schoichet, Los Angeles, as amici curiae for respondents.

The Board of Education of the City of Los Angeles (the Board) has appealed from a judgment in a proceeding in mandamus brought by Negro students and Mexican—American students to compel the Board to act to eliminate racial segregation within schools of the Los Angeles Unified School District.

The area served by the Board is approximately 711 square miles in extent. In 1968 approximately 648,000 pupils attended the schools of the district. At that time there were 435 elementary schools, 73 junior high schools and 47 senior high schools. The trial court found that there was substantial racial and ethnic imbalance within the school system.

This is a case of a school district which has never been operated under a constitutional or statutory provision that mandated or permitted racial segregation in public education. In Keyes v. School District No. 1, Denver, Colo. (1973) 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548, the United States Supreme Court held that to obtain relief under the equal protection clause of the Fourteenth Amendment of the United States Constitution in a case of this nature the plaintiffs must prove not only that segregated schooling exists but that it has been intentionally brought about or maintained by state action. The Court stated (413 U.S. at p. 208, 93 S.Ct. at p. 2697): ‘We emphasize that the differentiating factor between de jure segregation and so-called de facto segregation to which we referred in Swann [Swann v. Charlotte-Mecklenburg Board of Education (1971) 402 U.S. 1, 17–18, 91 S.Ct. 1267, 28 L.Ed.2d 554] is purpose or intent to segregate.’

The matter of the application of the Keyes criterion with respect to a California school district was presented in Soria v. Oxnard School District Board of Trustees (9th Cir. 1973) 488 F.2d 579. Therein the school board relied on the reasoning of Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554. Its position was that it was required to integrate the district schools only if it caused the racial imbalance and that since there was no finding that the school board deliberately maintained two sets of schools in its system order to carry out a policy of separating students on the basis of race, no constitutional violation had been established. The plaintiffs maintained that the school board's accountability for its segregated schools, resulting as a natural, foreseeable consequence of its acts and omissions, remained open for consideration, regardless of any discriminatory motives behind such acts and omissions.

With respect to the theory espoused by the plaintiffs in Soria, the Court of Appeals stated (488 F.2d at p. 585): ‘The district court judge apparently accepted this legal theory since it ruled that the Board's contention that it had never intentionally or purposefully segregated its school system did not raise a disputed question of material fact for purposes of summary judgment. By so holding, the district court applied an improper legal standard for determining whether the Board had committed unconstitutional segregation. [¶] In Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973) the Supreme Court for the first time gave full consideration to a so-called ‘northern de facto segregation’ case where public schools had been operated under no constitutional or statutory provisions which either mandated or permitted racial or ethnic segregation of students. The district court in Keyes held that through various acts such as school construction policies, gerrymandering attendance zones, use of so-called ‘optional zones,’ and excessive use of portable classrooms, the Denver School Board had engaged in an unconstitutional policy of deliberate racial segregation in the Park Hill section of the city's school system. Affirming this finding of unconsitutional segregation, the Court held prerequisite the determination that the school authorities had intentionally discriminated against minority students by practicing a deliberate policy of racial segregation. The Court emphasized that the differentiating factor between so-called de facto segregation and the de jure segregation held constitutionally impermissible in Brown v. Board of Education (1), 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) was that in the latter case there was present a purpose or intent to segregate. Keyes, supra, 413 U.S. at 208, 93 S.Ct. 2686. Once a finding of intentional segregation is made, the school authorities must assume the affirmative obligation of converting their school system into a unitary one where ‘racial discrimination would be eliminated root and branch.’ Green v. County School Board, 391 U.S. 430, 438, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968).'

In Johnson v. San Francisco Unified School District (9th Cir. 1974) 500 F.2d 349, the litigation was initiated by parents of black children attending public elementary schools, seeking desegregation of those schools. The court stated (500 F.2d at p. 351): ‘In Keyes [Keyes v. School District No. 1, Denver, Colo. (1973) 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548], as here, the contention was that the ‘School Board alone, by use of various techniques such as the manipulation of student attendance zones, school site selection and a neighborhood school policy, created or maintained racially or ethnically (or both racially and ethnically) segregated schools throughout the school district, entitling petitioners to a decree directing desegregation of the entire school district.’ 413 U.S. at 191, 93 S.Ct. at 2689. In discussing the standards for determining whether de jure acts of segregation had been committed by a school board, the Court states:

‘We emphasize that the differentiating factor between de jure and so-called de facto segregation to which we referred in Swann [v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 17–18, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971)] is purpose or intent to segregate.’

413 U.S. at 208, 93 S.Ct. at 2697 (emphasis in original). [¶] This court in Soria v. Oxnard School District Board of Trstees, 488 F.2d 579 (9th Cir. 1973), has construed Keyes as requiring for any finding of unconstitutional segregation a ‘determination that the school authorities had intentionally discriminated against minority students by practicing a deliberate policy of racial segregation.’ 488 F.2d at 585. [Fn. omitted.]'

In Johnson v. San Francisco Unified School District, supra, the court further stated (500 F.2d at pp. 351–352): ‘Keyes and Soria were filed after the decision by the district court in this case. Quite understandably, therefore, the district court made no finding as to whether the School Board possessed the requisite segregatory intent. On the contrary, the district court treated proof of such intent as unnecessary. ‘In the context of segregation,’ it held, ‘[the term de jure] * * * means no more nor less than that the school authorities have exercised powers given them by law in a manner which creates or continues or increases substantial racial imbalance in the schools. It is that governmental action, regardless of the motivation for it, which violates the Fourteenth Amendment.’ 339 F.Supp. [1315] at 1319 [N.D. Cal.]. As Keyes and Soria have now made clear, the district court thereby applied an erroneous legal standard in determining that a constitutional violation had occurred. [¶] Although the record contains evidence relevant to the question of the School Board's intent, it is not at all clear that evidence is sufficient to permit a fair resolution of this issue. Because the litigants, like the district court, did not focus upon the issue of intent, we cannot be confident that all of the relevant and reasonably available evidence is not before us. The case must be remanded to afford an opportunity to re-examine the record on the issue of intent. Upon remand the district court will permit the parties to offer such additional evidence as they may desire pertaining to that issue.'

As will be explained, the findings of fact (redundant in some instances) in the case presently before this court do not show that the Board intentionally discriminated against minority students by practicing a deliberate policy of racial segregation. At most, the findings disclose that the Board failed to give significant consideration to the matter of the effect of its acts or omissions upon the prevailing condition of racial and ethnic imbalance in schools of the district. As far as the findings disclose, segregation was ignored rather than intentionally fostered.

One of the findings of fact was: ‘That the schools which were segregated, minority and white, in 1966, have remained and will continue to remain segregated. They were caused to be segregated and will continue to be caused to remain segregated by Board by, among other acts, mandating neighborhood school systems, site selection, mandating school attendance areas and boundaries of such schools, transportation policies, restrictive, impracticable and non-effective, for integration, transfer policies.’

Another finding was: ‘That, subsequent to 1963, none of the school sites selected by Staff and purchased by Board were situated or purchased for, and none of the schools constructed thereon by Board were constructed for, and none of the schools thereon opened by Board were opened for or designed to, in location or school attendance boundaries, effectuate desegregation or integration in education.’

Those findings of fact fall short of being findings that the Board acted with a purpose or intent to segregate. The specified acts or omissions of the Board could have had a reasonable basis untainted by any purpose or intent to deprive any student or group of students of a constitutional right. (See Soria v. Oxnard School District Board of Trustees, supra, (9th Cir. 1973) 488 F.2d 579, 588.) In the absence of a finding of the proscribed purpose or intent, under the reasoning of Keyes there was no Fourteenth Amendment violation.

The trial court further found that the Board has, ‘since at least May of 1963, knowingly, affirmatively and in bad faith . . . segregated, de jure, its students' in that it has adopted and continues to adhere to ‘a policy of selecting and purchasing sites and building neighborhood schools without regard to desegregation or integration’; has done and ‘is doing so within racially imbalanced, segregated ghetto areas,’ knowing and intending that the students of the area ‘were and would be by it required to attend thereat’; has established ‘and is establishing mandatory attendance areas and boundaries around its neighborhood schools so as to create or perpetuate segregated schools';1 and has set ‘and is still setting its school attendance areas and boundaries without regard to its duty not to create or perpetuate racially imbalanced and segregated school,’ the attendance boundaries being set, ‘knowing or having reasonable cause to know, that the school affected thereby was or would be or become or be perpetuated as a minority segregated school or a white segregated school or a racially imbalanced school.’

Further findings of the trial court were as to acts or omissions on the part of the Board which were specified as follows: failure to adopt, or instruct its staff with respect to, ‘any definition of equal educational opportunity or educational integration or segregation or desegregation or racial balance or racial imbalance’; failure to establish ‘Feeder School Policies that would create or facilitate integration or desegregation or racial balance,’ the Board knowing, ‘or in the exercise of reasonable care should have known, that the policies established by it created or perpetuated racial imbalance and segregation’; the establishment of student transportation policies which created or perpetuated segregation,2 the Board knowing ‘that many if not substantially all of its socio-economic disadvantaged students could not and cannot afford private transportation to schools outside of the area of nontransportation, and therefore that its transportation policy would cause substantially all, if not all, there of to be compelled to and attend a segregated neighborhood school’; and the failure to provide free transportation ‘or its equivalent to any pupil who was or is granted a permit to transfer pursuant to its transfer policies and practices.’

It is manifest that the trial court made no finding of intentionally segregative actions on the part of the Board. At most, as is evidenced by findings about to be related, the court found that the Board declined to take any action with respect to the matter of desegregation, choosing to do nothing about the matter as contrasted with undertaking action with the purpose or intent to create or maintain segregation in schools of the district. Thus the court found that the Board takes ‘the legal position’ that it ‘will only expend sums to create racial balance . . . and will only affirmatively attempt to create . . . integration from surplus funds, surplus to all of its programs which it . . . deems necessary or desirable, in its sole and arbitrary discretion, for the accomplishment of educational ‘output,’ which surplus funds it defines as that given to it by outside grants, either federal or state.'

The court further found: ‘Board has not at any time evolved, nor will it, unless and until commanded by the Court to do so, evolve any plan or plans or the methods, means, manner, tools, designs and techniques for the integration or approximate integration of its schools, or for the desegregation of its minority segregated schools or for the creation of racial or ethnic or approximate racial or ethnic balance in its schools. [¶] Board has not even commenced an in-depth study so as to enable it to evolve any such plan or plans or the designs, tools, manner, means, methods and techniques for the effectuating of any such plan or plans.’

However, apart from the federal constitutional question determined in Keyes, since the findings were in substance that the Board has not made any substantial effort to solve the problem presented by the existence of substantial racial and ethnic imbalance in the school system, we turn to the question of whether the Board has failed and continues to fail to perform a duty which the law of this state has placed upon it.

There are few, if any, functions of state and local governments which can be said to be more important than that of education. That importance was expressed by the Supreme Court of this state in Serrano v. Priest, 5 Cal.3d 584, at pages 608–610, 96 Cal.Rptr. 601, at page 618, 487 P.2d 1241, at page 1258 (footnotes being omitted herein): ‘We are convinced that the distinctive and priceless function of education in our society warrants, indeed compels, our treating it as a ‘fundamental interest.’ [¶] First, education is essential in maintaining what several commentators have termed ‘free enterprise democracy’—that is, preserving an individual's opportunity to compete successfully in the economic marketplace, despite a disadvantaged background. Accordingly, the public schools of this state are the bright hope for entry of the poor and oppressed into the mainstream of American society. [¶] Second, education is universally relevant. ‘Not every person finds it necessary to call upon the fire department or even the police in an entire lifetime. Relatively few are on welfare. Every person, however, benefits from education . . .’ (Fn. omitted.) (Coons, Clune & Sugarman, supra, 57 Cal.L.Rev. at p. 388.) [¶] Third, public education continues over a lengthy period of life—between 10 and 13 years. Few other government services have such sustained, intensive contract with the recipient. [¶] Fourth, education is unmatched in the extent to which it molds the personality of the youth of society. While police and fire protection, garbage collection and street lights are essentially neutral in their effect on the individual psyche, public education actively attempts to shape a child's personal development in a manner chosen not by the child or his parents but by the state. (Coons, Clune & Sugarman, supra, 57 Cal.L.Rev. at p. 389.) ‘[T]he influence of the school is not confined to how well it can teach the disadvantaged child; it also has a significant role to play in shaping the student's emotional and psychological make-up.’ (Hobson v. Hansen, supra, D.C.D.C., 269 F.Supp. 401, 483.)

¶] Finally, education is so important that the state has made it compulsory—not only in the requirement of attendance but also by assignment to a particular district and school. Although a child of wealthy parents has the opportunity to attend a private school, this freedom is seldom available to the indigent. In this context, it has been suggested that ‘a child of the poor assigned willy-nilly to an inferior state school takes on the complexion of a prisoner, complete with a minimum sentence of 12 years.’ (Coons, Clune & Sugarman, supra, 57 Cal.L.Rev. at p. 388.)'

While the question presented for resolution in Serrano was not that which is presently before this court, the importance of the function of education and the concomitant great obligation placed upon state and local governments remain constant. With respect to the implementation of that obligation California has not assumed an inert position. In 1963, in the course of determining the sufficiency of a complaint in a mandamus proceeding, the Supreme Court of this state said in Jackson v. Pasadena City School Dist., 59 Cal.2d 876, at page 881, 31 Cal.Rptr. 606, at page 609, 382 P.2d 878, at page 881: ‘Although it is alleged that the board was guilty of intentional discriminatory action, it should be pointed out that even in the absence of gerrymandering or other affirmative discriminatory conduct by a school board, a student under some circumstances would be entitled to relief where, by reason of residential segregation, substantial racial imbalance exists in his school. So long as large numbers of Negroes live in segregated areas, school authorities will be confronted with difficult problems in providing Negro children with the kind of education they are entitled to have. Residential segregation is in itself an evil which tends to frustrate the youth in the area and to cause antisocial attitudes and behavior. Where such segregation exists it is not enough for a school board to refrain from affirmative discriminatory conduct. The harmful influence on the children will be reflected and intensified in the classroom if school attendance is determined on a geographic basis without corrective measures. The right to an equal opportunity for education and the harmful consequences of segregation require that school boards take steps, insofar as reasonably feasible, to alleviate racial imbalance in schools regardless of its cause.’ (Emphasis added.)

While the reasoning of Jackson was dictum since in the pleading before the court it was alleged that the action of the school board was undertaken for the purpose of segregation, its underlying logic deserves recognition. In San Francisco Unified School Dist. v. Johnson, 3 Cal.3d 937, 92 Cal.Rptr. 309, 479 P.2d 669, the court stated at page 949, 92 Cal.Rptr. at page 316, 479 P.2d at page 676: ‘. . . it is the presence of racial isolation, not its legal underpinnings [i. e., whether the segregation is of de facto or de jure character], that creates unequal education.’ Where unequal education is the evil to be eradicated, a state is warranted in seeking to do so even if the evil has not been created or maintained by a school board acting with a purpose or intent to segregate.

However, in determining the extent to which the quoted reasoning of Jackson is presently applicable in the case at bench, guidance must be sought in the opinion of the Supreme Court in the recent case of Santa Barbara Sch. Dist. v. Superior Court, 13 Cal.3d 315, 118 Cal.Rptr. 637, 530 P.2d 605, a case involving the validity of a desegregation plan for elementary schools. The court noted (p. 322) that at the general election held on November 7, 1972, the electorate of this state adopted the initiative measure denominated Proposition 21. Part of the effect thereof was the repeal of section 5002 and 5003 of the Education Code,3 which had declared the state policy of eliminating racial imbalance in California schools and had set forth the various factors to be considered in implementing that policy. Proposition 21 also repealed the administrative guidelines for achieving racial balance in the schools adopted by the State Board of Education. (§§ 14020–14021 of tit. 5 of the Cal.Admin.Code.) The court pointed out (p. 329): ‘Proposition 21 by repealing the involvement of the state government in discharging the state's duty not to segregate, neither abrogated the school district's constitutional duty not to segregate nor removed the state from involvement through local school districts in the field of education.’ (Emphasis added.)

A further portion of the Santa Barbara School District opinion relating to the effect of Proposition 21 is as follows (13 Cal.3d at pp. 331–332, 118 Cal.Rptr. at p. 650, 530 P.2d at p. 618): ‘The repealing provisions (the valid part) would eliminate a commitment to achieving racial balance in the schools, leaving local school districts with sole responsibility and without direction other than constitutional mandate; the enactment of section 1009.6 (the invalid part)4 went further and forced upon the local school districts the neighborhood school concept without forced busing as the only acceptable policy. Even though this restriction of local school district discretion is unconstitutional and therefore the full purpose of Proposition 21 cannot be realized, it seems eminently reasonable to suppose that those who favor the proposition would be happy to achieve at least some substantial portion of their purpose, namely to eliminate a state commitment to racial balance in the schools regardless of other considerations, and thereby to allow local control subject only to constitutional restriction.’

As has been explained, the findings of fact in the case presently before this court are not sufficient to sustain the judgment under the criterion of Keyes v. School District No. 1, Denver, Colo., supra, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548. Moreover, the findings do not afford a basis for upholding the judgment under state law, aside from federal constitutional law. Consequently, the judgment must be reversed and the case remanded for further proceedings consistent with Keyes v. School District No. 1, Denver, Colo., supra, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548, and Santa Barbara Sch. Dist. v. Superior Court, supra, 13 Cal.3d 315, 118 Cal.Rptr. 637, 530 P.2d 605.

No purpose would be served by a discussion of other contentions presented on this appeal. Since the case must be remanded for further fact-finding, we do not undertake to determine the propriety of the award of attorney's fees for services rendered on behalf of the plaintiffs.

The judgment is reversed and the case is remanded to the superior court for further proceedings in light of Keyes v. School District No. 1, Denver, Colo., 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548, and Santa Barbara Sch. Dist. v. Superior Court, 13 Cal.3d 315, 118 Cal.Rptr. 637, 530 P.2d 605, and in accordance with the views expressed in the opinion herein. Upon such remand the superior court shall permit the parties to offer additional pertinent evidence. The parties shall bear their own costs on this appeal.

I concur.

The opinion written by Mr. Presiding Justice Ford ably presents, considers and applies the law governing a decision in the case; analyzes pertinent findings of the trial court; and correctly concludes the judgment is not sustained by the findings because it is not shown the imbalance of which plaintiffs complain was caused or maintained by racially motivated action of the Board, i. e., action the intent or purpose of which was to racially segregate. Additionally, in my opinion the so-called ‘Findings of Fact and Conclusions of Law,’ considered as a whole, furnish supportive background for the conclusions stated in the opinion. The ‘Findings' and ‘Conclusions of Law’ consist of statements of ultimate and evidentiary facts, in some instances uncertain, conflicting and ambiguous, quotations from judicial decisions, the trial court's interpretation of these and other decisions and idealistic, sociological and philosophical concepts and theories. These statements demonstrate the decision of the court was controlled by a misconception of the decision in Brown I (Brown v. Board of Education (1954) 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873), which it believed constitutionally proscribed all racial segregation in schools, whether caused by racially motivated state action or by other factors, contrary to the principles stated in our opinion premised on the decisions in Swann (Swann v. Charlotte-Mecklenburg Board of Education (1971) 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554) and Keyes (Keyes v. School District No. 1, Denver, Colo. (1973) 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548). An example is a statement by the trial court that the issue in the case is ‘whether in education separate but allegedly equal is equal.’ This is the issue in Brown I which involves state action imposing and maintaining a racially segregated dual school system. It is not the issue in a case involving segregation resulting from factors other than racially motivated state action. My views respecting the decision in Brown I, the scope of its mandate, and its consideration of the ‘separate but equal’ doctrine as the principal issue in the case, because there was no issue respecting the fact that the segregation involved resulted from racially motivated state action, are set forth in People ex rel. Lynch (Lynch) v. San Diego Unified School Dist., 19 Cal.App.3d 252, 259–261, 263, 96 Cal.Rptr. 658. In another instance, the trial court stated, in substance, the Board was maintaining a dual school system, which was the situation in Brown I, and court action was required to compel it to adopt a ‘unitary system.’ There is no basis for any claim in the case at bench minority students were required to attend certain schools and white students were required to attend other schools.

In Lynch I also expressed my views respecting statements in Jackson (Jackson v. Pasadena City School Dist., 59 Cal.2d 876, 31 Cal.Rptr. 606, 382 P.2d 878) and San Francisco Unified School District (San Francisco Unified School Dist. v. Johnson, 3 Cal.3d 937, 92 Cal.Rptr. 309, 479 P.2d 669) supporting the position, under some circumstances, minority students of a de facto segregated school system attending imbalanced schools are denied equal protection of the law where it is shown their attendance at such schools actually has denied them equal educational opportunities, and it also is shown the school authorities have not taken available and reasonably feasible steps to alleviate the imbalance.

Some findings of the trial court, at first blush, seem to be directed to the Jackson-San Francisco Unified School District position as stated in Lynch. However, considered as a whole, their deficiency to support this position is evident, as is the trial court's dominant reliance upon the concept that there is no difference between de jure and de facto segregation. Prerequisite to support the conclusion that attendance at racially imbalanced schools denies equal protection of the law are findings, as stated in Lynch (19 Cal.App.3d 252, 265–266, 96 Cal.Rptr. 658, 666), that ‘the imbalance is of such a degree it affects the educational opportunities of the minority group; . . . under the circumstances, the minority group, in fact, is denied equal educational opportunities; and . . . available steps to alleviate the imbalance are reasonably feasible in light of the degree of the imbalance and the practical necessities of governmental operation.’ The findings at bench do not include determinations respecting all of the facts essential to compliance with the foregoing requirements. There are no findings respecting what steps are available to alleviate the imbalance, and the feasibility of those steps. As to the latter element, the findings are not consonant with the reasoning in Lynch (19 Cal.App.3d 252, 267, 96 Cal.Rptr. 658, 667) that ‘Whether available steps to alleviate an existing imbalance are reasonably feasible requires a consideration not only of such matters as the cost involved, the availability and selection of sites, the size of the schools, the effectiveness of zone changes and the safety of students [citation], but also of the relation between these matters, the degree of the existing imbalance, and the effect of the imbalance on educational opportunities under the circumstances. Compliance with constitutional standards does not require the use of school funds to confer educational opportunities upon a minority group attending de facto racially imbalanced schools, which they do not receive because of the imbalance, at the expense of other essential and equally important educational opportunities conferred equally upon both the minority and the majority groups.’ The record at bench dictates the conclusion of the court did not believe these considerations were essential under the overriding principles it mistakenly concluded were dictated by the decision in Brown I. In addition, the record also shows the court did not adhere to the criterion expressed in Lynch (19 Cal.App.3d 252, 266–267, 96 Cal.Rptr. 658, 667) that ‘In ruling upon constitutional issues, courts should be hesitant to premise a decision upon facts the existence of which is based on judicial knowledge rather than upon facts the existence of which is proven in a judicial proceeding,, lest, in their zeal to protect constitutional rights, they exceed the scope of judicial inquiry and invade the domain of administrative determination. [Citations.] In Swann v. Charlotte-Mecklenburg Board of Education, . . . the court cautioned, ‘it is important to remember that judicial powers may be exercised only on the basis of a constitutional violation. Remedial judicial authority does not put judges automatically in the shoes of school authorities whose powers are plenary. Judicial authority enters only when local authority defaults.’ [¶] The issue of feasibility, likewise, involves considerations which in many instances are matters of administrative determination rather than judicial decision. . . .'

A court should not usurp the functions of a school board. The findings and judgment in the case at bench require the conclusion the trial court did so under the mistaken belief racial imbalance in schools per se demonstrates denial of equal protection of the law.

FOOTNOTES

1.  Viewed in context, we construe the words ‘so as to create or perpetuate segregated schools' to have reference to the result of the Board's action rather than to a purpose or intent to segregate on the part of the Board.

2.  The classification of students as to whom transportation was not furnished was found by the trial court to be follows: ‘Students living within 2 1/4 miles from an elementary living within 2 1/4 miles from an elementary school, 2 3/4 miles from a junior high school and 3 1/4 miles from a senior high school.’

3.  Sections 5002 and 5003 of the Education Code were enacted by the Legislature shortly after the decision of the Supreme Court in San Francisco Unified School Dist. v. Johnson, supra, (1971) 3 Cal.3d 937, 92 Cal.Rptr. 309, 470 P.2d 669.Section 5002 provided: ‘It is the declared policy of the Legislature that persons or agencies responsible for the establishment of school attendance centers or the assignment of pupil thereto shall prevent and eliminate racial and ethnic imbalance in pupil enrollment. The prevention and elimination of such imbalance shall be given high priority in all decisions relating to school sites, school attendance areas, and school attendance practices.’Section 5003 provided: ‘(a) In carrying out the policy of Section 5002, consideration shall be given to the following factors:‘(1) A comparison of the numbers and percentages of pupils of each racial and ethnic group in the district with their numbers and percentages in each school and each grade.‘(2) A comparison of the numbers and percentages of pupils of each racial and ethnic group in certain schools with those in other schools in adjacent areas of the district.‘(3) Trends and rates of population change among racial and ethnic groups within the total district, in each, and in each grade.‘(4) The effects on the racial and ethnic composition of each school and each grade of alternate plans for selecting or enlarging school sites, or for establishing or altering school attendance areas and school attendance practices.‘(b) The governing board of each school district shall periodically, at such time and in such form as the Department of Education shall prescribe, submit statistics sufficient to enable a determination to be made of the numbers and percentages of the various racial and ethnic groups in every public school under the jurisdiction of each such governing board.‘(c) For purposes of Section 5002 and this section, a racial or ethnic imbalance is indicated in a school if the percentage of pupils of one or more racial or ethnic groups differs significantly from the district wide percentage.‘(d) A district shall study and consider plans which would result in alternative pupil distributions which would remedy such an imbalance upon a finding the Department of Education that the percentage of pupils of one or more racial or ethnic groups in a school differs significantly from the districtwide percentage. A district undertaking such a study may consider among feasibility factors the following:‘(1) Traditional factors used in site selection, boundary determination, and school organization by grade level.‘(2) The factors mentioned in subdivision (a) of this section.‘(3) The high priority established in Section 5002.‘(4) The effect of such alternative plans on the educational programs in that district.‘In considering such alternative plans the district shall analyze the total educational impact of such plans on the pupils of the district. Reports of such a district study and resulting plans of action, with schedules for implementation, shall be submitted to the Department of Education, for its acceptance or rejection, at such time and in such form as the department shall prescribe. The department shall determine the adequacy of alternative district plans and implementation schedules and shall report its findings as to the adequacy of alternative district plans and implementation schedules to the State Board of Education. A summary report of the findings of the department pursuant to this section shall be submitted to the Legislature each year.‘(e) The State Board of Education shall adopt rules and regulations to carry out the intent of Section 5002 and this section.’

4.  Section 1009.6 provided: ‘No public school student shall, because of his race, creed, or color, be assigned to or be required to attend a particular school.’

FORD, Presiding Justice.

COUGHLIN and SCHWEITZER, JJ.*, concur.