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Case Name Ho v. San Francisco Unified School District SD-CA-0001
Docket / Court 94-2418 ( N.D. Cal. )
State/Territory California
Case Type(s) Education
School Desegregation
Case Summary
By their parents and next friends, and represented by private counsel, three named children of Chinese ancestry brought an action on 07/11/1994 against the San Francisco Unified School District (the School District) and other local and state defendants. Seeking class action status for their 42 U.S ... read more >
By their parents and next friends, and represented by private counsel, three named children of Chinese ancestry brought an action on 07/11/1994 against the San Francisco Unified School District (the School District) and other local and state defendants. Seeking class action status for their 42 U.S.C. § 1983-based case, the plaintiffs sought declaratory relief and an injunction forbidding the defendants from operating the public schools of San Francisco under a system of racial classification and quotas. The plaintiffs alleged that the defendants were violating the Fourteenth Amendment by adhering to a particular paragraph of a consent decree approved by the district court in May 1983. Depending on the type of school involved, the paragraph put a 40 or 45% cap on any one racial/ethnic group in a school's student body. Once filed, the case largely proceeded by answers to interrogatories and by affidavits, including several from school officials denying engaging in classification by race.

In January 1995, District Judge William H. Orrick added as a defendant the San Francisco NAACP, which had brought the suit that led to the consent decree. On March 8, 1996 the court certified the plaintiffs as representatives of a class consisting of "all children of Chinese descent of school age who are current residents of San Francisco and who are eligible to attend the public schools of the San Francisco Unified School District."

On May 5, 1997, Judge Orrick denied the plaintiffs' motion for summary judgment. He held that: (1) the earlier decree was not unconstitutional under precedent existing at time it was entered in 1983; (2) in any event, the doctrine of res judicata barred plaintiffs from raising the issue of whether decree was unconstitutional when entered; (3) plaintiffs were subject to race-based classification by a state actor, despite the state's contention that students engaged in self-identification; (4) absence of a judicial finding of past discrimination by the school district prior to the entry of decree did not preclude a finding of justification for the racial classification; (5) there were issues of fact as to relevant factors, precluding summary judgment for plaintiffs even under strict scrutiny analysis; and (6) there were issues of fact, precluding summary judgment, as to whether termination of the decree, after the passage of 14 years, was justified. The plaintiffs appealed the denial of their motion to the U.S. Court of Appeals for the Ninth Circuit, and also sought that the appellate court issue a writ of mandamus to halt the scheduled trial, in that a trial was unnecessary (in the plaintiffs' view) because of the defendants' admitted usage of racial classification.

A panel of the Ninth Circuit affirmed the lower court. First, the panel opinion took a procedural route, saying that the appellate court lacked jurisdiction to review plaintiffs' appeal, at this stage, because the factual record had not been fully developed. Next, in assessing the mandamus application, the court reviewed the scientific and practical difficulties of classification by race, together with an overview of the history of such classification in the United States. It concluded that race classification may be permissibly used by government in a very limited way to compensate individuals themselves injured by the malevolent use of race (not as a surrogate for groups harmed in the past). According to the court, two issues remained for trial: (i) whether vestiges remained of the racism that justified the quota paragraph of the consent decree in 1983, and (ii) if they do remain, was the quota paragraph necessary to remove the vestiges? The school district would have the burden, at trial, of justifying its' use of racial classifications as a remedy. The appellate court then denied the writ of mandamus, saying the trial would allow for a remedy of constitutional injury as rapidly as practicable, given the timing of when the new school year would begin. Ho by Ho v. San Francisco Unified School District, 147 F.3d 854 (9th Cir. 1998) (Circuit Judge John T. Noonan, Jr.).

On remand, the plaintiffs renewed their motion for summary judgment, supporting it with an additional declaration, but Judge Orrick denied the motion in an unpublished order on October 20, 1998. Both before and for several moths after that date, the parties had been negotiating in an effort to reach a settlement. Finally, on the day set for trial to begin, in February 1999, the parties submitted a settlement agreement to the district court. Judge Orrick preliminarily approved the agreement's terms and set a fairness hearing for April 20, 1999, regarding the matter as resolving two related proceedings--the one filed in 1978 which resulted in the 1983 decree and the one filed by the plaintiffs. After the fairness hearing, and overruling a number of objections filed to the proposed settlement, the court approved it in July 1999, noting that the plaintiffs appeared likely to have prevailed at trial upon their claim that the race-based student assignment plan was no longer constitutional. The new plan provided in the settlement obligated the school district to achieve or maintain school diversity without use of racial classifications. The plan, however, expressly provided for the possibility that students may still need to be assigned by race or ethnicity because of "the language needs of the student[.]" While some objected that, overall, the plan would result in re-segregation, particularly after the new consent decree ended (by its' terms) in 2002, Judge Orrick noted that the termination provision only provided for termination subject to the approval of the court. Thus, he could delay termination or require remedial measures if re-segregation then appeared a proven outcome of the settlement. The judge also overruled intervention efforts based upon arguments that Latino and other groups had been insufficiently represented in the preparation of the settlement. The judge felt that the proposed intervenors had not shown that their inability to participate as a party to the litigation harmed whatever interests their constituents had in maintaining a race-based student assignment plan. He invited any persons or groups who felt they could prove that then-current problems in the School District had been caused by the prior discrimination that justified the 1983 decree to intervene and spend their time and money to prove "this difficult causation issue." The judge did adopt a recommendation that it increase its oversight of the consent decree by directing all parties to respond to recommendations in recent reports by the pre-existing consent decree advisory committee (chaired by Dr. Gary Orfield) and the state consent decree monitor, Stuart Biegel. The parties were also directed to submit a proposed preliminary injunction and a stipulated school assignment plan. San Francisco NAACP v. San Francisco Unified School District, 59 F. Supp.2d 1021 (N.D. Cal. 1999).

In an unpublished ruling, the court awarded the plaintiffs their attorneys' fees and costs on October 28, 1999, but in a separate ruling on September 1, 2000, denied the NAACP's motion seeking an award of attorneys' fees and costs incurred in defending against the plaintiffs' action, chiefly because the organization (which had sought to defend the student-assignment-by-race plan of the 1983 decree) could not be said to have been a prevailing party in the plaintiffs' action.

Difficulties in responding to the advisory committee's and monitor's recommendations, compounded by administrative vacancies and financial difficulties in the School District, led to reports filed with the court which promised development of comprehensive plans to address the schools' problems. Eventually, a five-year "final comprehensive plan" was filed with the court on April 11, 2001. Differences between the parties remained regarding this plan, however, and a special master (Thomas Klitgaard) was appointed at the parties' joint request, to assist the parties' negotiations toward resolving their differences. On July 1, 2001, a settlement agreement was submitted to the court for approval. Uncontested aspects of the plan were being implemented, while the settlement addressed the contested aspects of the plan. It called for extension of the decree until December 31, 2005, for continued funding by the state through the end of the school year ending in 2006, and for the School District to take all practicable actions to eliminate any vestiges of past de jure racial or ethnic discrimination, to the extent practicable, by that time. Other components of the plan called for the District to monitor and review compliance with the decree and for modifications to the student assignment plan, excluding race or ethnicity as factors for use in a diversity index to be used in assignments. The comprehensive plan allowed for a procedure by which adjustments on the basis of race, if narrowly tailored to further a compelling government interest, could be addressed. In an unpublished opinion of October 24, 2001, recognizing the comprehensive plan as a work in progress, Judge Orrick approved it and overruled several objections to it.

In 2002, Judge Orrick retired and the case was reassigned to Judge William H. Alsup on January 11, 2002. The planned 2005 termination of the consent decree approached as the parties remained unable to fix, or substitute a better system than, the diversity index to achieve racial integration in the District's schools, despite Judge Alsup's urging that they do so. The parties proposed an eighteen month extension of the decree. On November 8, 2005, Judge Alsup rejected the proposal, citing recent Supreme Court precedent calling for returning school control to local authorities at the earliest practicable date. In his view, the diversity index had not and would not produce the benefit of diversity or racial integration. The judge's opinion reviewed the history of the cases leading to the 1983 and 1999 consent decrees, the 2001 settlement, and what the monitor had described as recent re-segregation of certain schools. The judge viewed the re-segregation resulting from the decree's student assignment plan as among the factors precluding extension of the decree, together with the parties' failure to show that the vestiges of past racial discrimination had not already been eliminated. An existing District initiative to remedy academic achievement disparities would continue whether or not the decree was extended, noted the court. Judge Alsup opined that the parties used the supremacy of the decree to override opposition from parents, teachers, and other interests not represented in the case and, although doing so with admirable motives, the decree short-circuited the traditional checks and balances of the traditional governmental and political processes. San Francisco NAACP v. San Francisco Unified School District, 413 F. Supp.2d 1051 (N.D. Cal. 2005).

The court's docket sheets for the case reflect that, after Judge Alsup's order refusing to extend the decree, the San Francisco NAACP again sought an award of attorneys' fees, the plaintiffs' attorneys were allowed attorneys' fees, and the monitor filed a final supplemental report. We currently have no information about resolution of the NAACP's fee motion or indicating any other activity in the case following the December 28, 2005, filing of the monitor's supplemental report.

Mike Fagan - 06/30/2008

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Issues and Causes of Action
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Constitutional Clause
Equal Protection
Content of Injunction
Preliminary relief granted
Plaintiff Type
Private Plaintiff
Causes of Action 42 U.S.C. § 1983
Defendant(s) Board of Education of the State of California
California Department of Education
California State Superintendent of Public Instruction
San Francisco Board of Education
San Francisco National Association for the Advancement of Colored People
San Francisco Unified School District
Plaintiff Description Students of Chinese descent who had been denied enrollment in the public schools of their choice because of ethnically-based enrollment limitations in consent desegregation decree brought § 1983 action challenging constitutionality of decree.
Class action status sought Yes
Class action status outcome Granted
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Preliminary injunction / Temp. restraining order
Injunction / Injunctive-like Settlement
Source of Relief Settlement
Form of Settlement Court Approved Settlement or Consent Decree
Order Duration 1983 - 2005
Filed 07/11/1994
Case Closing Year 2005
Case Ongoing No
Case Listing SD-CA-0002 : San Francisco NAACP v. San Francisco Unified School District (N.D. Cal.)
Additional Resources
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  See this case at (May provide additional documents and, for active cases, real-time alerts)
  The Ho v. SFUSD Case – The Battle to End Racial Discrimination in San Francisco Schools
Asian American Legal Foundation
By: Asian American Legal Foundation
[ Detail ] [ External Link ]

Court Docket(s)
U.S. Court of Appeals
SD-CA-0001-9001.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
N.D. Cal.
SD-CA-0001-9000.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
N.D. Cal.
Opinion [re: motion for summary judgment] [ECF# 116] (965 F.Supp. 1316)
SD-CA-0001-0001.pdf | WESTLAW| LEXIS | Detail
Source: Google Scholar
U.S. Court of Appeals
[Opinion] (147 F.3d 854)
SD-CA-0001-0004.pdf | WESTLAW| LEXIS | Detail
Source: Google Scholar
N.D. Cal.
Opinion (1998 U.S.Dist.LEXIS 21406)
SD-CA-0001-0007.pdf | LEXIS | Detail
Source: LexisNexis
N.D. Cal.
Opinion and Order [ECF# 442] (59 F.Supp.2d 1021)
SD-CA-0001-0002.pdf | WESTLAW| LEXIS | Detail
Source: Google Scholar
N.D. Cal.
Memorandum Decision and Order [ECF# 523] (2000 WL 1268234)
SD-CA-0001-0005.pdf | WESTLAW | Detail
N.D. Cal.
Memorandum Decision and Order [ECF# 574] (2001 WL 1922333 / 2001 U.S.Dist.LEXIS 25904)
SD-CA-0001-0006.pdf | WESTLAW| LEXIS | Detail
N.D. Cal.
Order Denying Proposed Extension of Consent Decree [ECF# 702] (413 F.Supp.2d 1051)
SD-CA-0001-0003.pdf | WESTLAW| LEXIS | Detail
Source: Google Scholar
show all people docs
Judges Alsup, William Haskell (N.D. Cal.) show/hide docs
SD-CA-0001-0003 | SD-CA-0001-9000
Noonan, John T. Jr. (Ninth Circuit) show/hide docs
Orrick, William Horsley Jr. (N.D. Cal.) show/hide docs
SD-CA-0001-0001 | SD-CA-0001-0002 | SD-CA-0001-0004 | SD-CA-0001-0005 | SD-CA-0001-0006 | SD-CA-0001-0007
Trott, Stephen S. (Ninth Circuit) show/hide docs
Wallach, Evan Jonathan (, Fed. Circuit) show/hide docs
Monitors/Masters Klitgaard, Thomas J. (California) show/hide docs
Plaintiff's Lawyers Callaghan, Lawrence A. (California) show/hide docs
Crowe, Robert (California) show/hide docs
SD-CA-0001-0002 | SD-CA-0001-0007
Fauth, Gordon M. (California) show/hide docs
SD-CA-0001-0002 | SD-CA-0001-0007
Girard, Daniel C. (California) show/hide docs
SD-CA-0001-0001 | SD-CA-0001-0002 | SD-CA-0001-0004 | SD-CA-0001-0007 | SD-CA-0001-9000
Lee, Anthony Kenhong (California) show/hide docs
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Levine, David Stefan (California) show/hide docs
SD-CA-0001-0002 | SD-CA-0001-0007 | SD-CA-0001-9000
Rosman, Michael E. (District of Columbia) show/hide docs
Defendant's Lawyers Atkins, Thomas I. (New York) show/hide docs
SD-CA-0001-0001 | SD-CA-0001-0002 | SD-CA-0001-0003 | SD-CA-0001-0007 | SD-CA-0001-9000 | SD-CA-0001-9001
Borkowski, John W. (Louisiana) show/hide docs
SD-CA-0001-0003 | SD-CA-0001-9000
Campos, David F. (California) show/hide docs
Chun, Brian H. (California) show/hide docs
Cohn, Peter Graham (California) show/hide docs
SD-CA-0001-0001 | SD-CA-0001-0002 | SD-CA-0001-0003 | SD-CA-0001-0007 | SD-CA-0001-9000 | SD-CA-0001-9001
Falk, Jerome B. (California) show/hide docs
SD-CA-0001-0003 | SD-CA-0001-9000
Gilliam, Haywood Stirling Jr. (California) show/hide docs
SD-CA-0001-0002 | SD-CA-0001-0004
Harris, Michael (California) show/hide docs
Herrera, Dennis J. (California) show/hide docs
SD-CA-0001-0003 | SD-CA-0001-9000
Hunt, James L. (California) show/hide docs
SD-CA-0001-0001 | SD-CA-0001-0002 | SD-CA-0001-0003 | SD-CA-0001-0007 | SD-CA-0001-9001
Johansen, Robin B. (California) show/hide docs
SD-CA-0001-0002 | SD-CA-0001-0003 | SD-CA-0001-0007 | SD-CA-0001-9000
Manshardt, Patrick J. (California) show/hide docs
SD-CA-0001-0002 | SD-CA-0001-0007 | SD-CA-0001-9000
Martin, Jessica T. (California) show/hide docs
Mayer, Steven Matthew (California) show/hide docs
McCutcheon, Aubrey (Michigan) show/hide docs
SD-CA-0001-0001 | SD-CA-0001-0002 | SD-CA-0001-0003 | SD-CA-0001-0004 | SD-CA-0001-0007 | SD-CA-0001-9000
McLetchie, Margaret A. (California) show/hide docs
Paterson, Eva Jefferson (California) show/hide docs
SD-CA-0001-0001 | SD-CA-0001-0002 | SD-CA-0001-0003 | SD-CA-0001-0007 | SD-CA-0001-9000
Remcho, Joseph (California) show/hide docs
SD-CA-0001-0002 | SD-CA-0001-0004 | SD-CA-0001-9001
Rubin, Robert J. (California) show/hide docs
Santa Romana, Mark V. (California) show/hide docs
Sneed, Maree F. (District of Columbia) show/hide docs
SD-CA-0001-0003 | SD-CA-0001-9000
Stewart, Kelsie (California) show/hide docs
Stewart, Therese M. (California) show/hide docs
SD-CA-0001-0003 | SD-CA-0001-9000
Tate, Diana C. (California) show/hide docs
Willis, Thomas A. (California) show/hide docs
SD-CA-0001-0003 | SD-CA-0001-9000
Yoo, John C. (California) show/hide docs
Zolotar, Barry A. (California) show/hide docs
SD-CA-0001-0001 | SD-CA-0001-0007 | SD-CA-0001-9000

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