ORDER CERTIFYING QUESTIONS TO THE CALIFORNIA SUPREME COURT
Wе certify to the California Supreme Court two questions set forth in Part II of this order. All further proceedings in this case are stayed pending final action by the California Supreme Court, and this case is withdrawn from submission until further order of this court. If the California Supreme Court accepts the certified questions for answer, the parties shall file a joint report six months after the date of acceptance and every six months thereafter advising us of the status of the proceedings.
Pursuant to Rule 29.5 of the California Rules of Court, a panel of the United States Court of Appeals for the Ninth Circuit, before which this appeal is pending, certifies to the California Supreme Court questions of law concerning the effect of Article I, Section 31 of the California Constitutiоn on the permissible use of race-conscious criteria in assigning faculty to public schools. The decisions of the California appellate courts provide no controlling precedent regarding the certified questions, the answers to which may be
I
James M. Friery is deemed the petitioner in this request because he appeals from the district court’s adverse ruling on these issues. The caption of the case is:
JAMES M. FRIERY,
Plaintiff — Petitioner,
v.
LOS ANGELES UNIFIED SCHOOL DISTRICT; RUSS THOMPSON; GENETHIA HUDLEY HAYES; VALERIE FIELDS; VICTORIA M. CASTRO; CAPRICE YOUNG; DAVID TOKOFSKY; JULIE KO-RENSTEIN; MIKE LANSING; RUBEN ZACARIAS, in their individual and official capacities;
UNITED TEACHERS OP LOS ANGELES,
Defendants — Respondents,
and
OFFICE OF CIVIL RIGHTS; DOES 1 through 10, inclusive,
Defendants.
Counsel for the parties are as follows:
For James M. Friery: Richard D. Ack-erman, Gary G. Kreep, United States Justice Foundation, 2901 E. Valley Parkway, Suite 1 — C, Escondido, California 92027. Telephone: (760) 741-8086.
For Los Angeles Unified School District, Russ Thompson, Genethia Hudley Hayes, Valerie Fields, Victoria M. Castro, Caprice Young, David Tokofsky, Julie Korenstein, Mike Lansing, and Ruben Zacarías: Peter W. James, Baker & Hostetler LLP, 333 S. Grand Ave., Suite 1800, Los Angeles, California 90071. Telephone: (213) 975-1600.
For United Teachers of Los Angeles: Jesus E. Quinonez, Taylor, Roth, Bush, Geffner & Furley, 3500 W. Olive Ave., Suite 1100, Burbank, California 91505. Telephone: (818) 955-6400. (United Teachers of Los Angeles joined in the brief filed by the other appellees and did not participate in oral argument.)
II
The questions of law to be answered are:
1. Does a school district “discriminate ... or grant preferential treatment ... on the basis of race,” within the meaning of Article I, Section 31(a) of the California Constitution, when it implements a policy that forbids teachers from transferring between schools where such a transfer would push the ratio of white to nonwhite faculty at the destination school beyond a prescribed balance?
(a) If the answer to Question 1 is “yes,” is such a policy nonetheless permissible under Article I, Section 31(a) if the school district adopts it in furtherance of its affirmative duty under the California Constitution to remedy de facto segregation? (b) If the answer to Question 1 is “yes,” is such a policy nonetheless permissible under Article I, Section 31(a) if it gives a school district administrator discretion to depart from the racial balancing requirement for certain race-neutral reasons?
2. Does a policy promulgated as part of a school district’s constitutionally mandated desegregation program fall within the “court order” exception of Article I, Section 31(d) of the California Constitution if the pertinent court order (a) approves, with modifications, the overall desegregation program as compliant with the dis
Ill
The statement of facts is as follows:
James M. Friery was at all relevant times a physical education teacher at Van Nuys High School, an organ of the Los Angeles Unified School District (LAUSD). Friery sought to transfer to a vacant position, identical in pay to his current job, at Van Nuys Math/Science Magnet School, located on the same campus. Russ Thompson, who was then the principal of Van Nuys High, told Friery that he could not successfully transfer to the magnet school because he was “of the wrong ethnic origin.” Friery is white.
Thompson’s statement was based on LAUSD’s Transfer Policy (“the Policy”), which bars intradistrict faculty transfers that would move the destination school’s ratio of white faculty to nonwhite faculty too far from LAUSD’s overall ratio. Versions of the Policy have been in place for about 20 years, but the current incarnation was adopted in 1997; it does not apply to hiring or firing, but only to “assignments, displacements and transfers of teachers.” Under the Policy, both ordinary secondary schools (like Van Nuys High) and magnet schools (like Van Nuys Magnet) may deviate up to 15 percentage points below or 25 percentage points above the ovеrall percentage of minority faculty. Thus, because in 1999, 51% of LAUSD’s K-12 and magnet school teachers were minorities, the faculty of Van Nuys Magnet could permissibly be as high as 76% minority or as low as 36% minority. The Policy also provides that “the goals may be modified as a result of the qualifications of available applicants or to meet the instructional needs of students, the school’s instruсtional program or other specific and demonstrable requirements of the school.”
Based on Thompson’s statement, Friery did not formally apply for the transfer he desired. Instead, he filed suit in the U.S. District Court for the Central District of California. He named as defendants Thompson; LAUSD, its superintendent, and the members of its governing board; the union representing the district’s teachers, with whom the district had negotiated the Transfer Policy; and a federal agency that was later dismissed from the action. Friery alleged, inter aha, that the Policy violated Article I, Section 31 of the California Constitution.
The district court granted summary judgment to the defendants, concluding (in pertinent part) that the Transfer Policy did not violate Section 31. First, the court held that the Policy did not discriminate or givе preferential treatment on the basis of race, as it “did not discriminate against any racial group” or “establish a preference for one race of teachers over another.” It also pointed to LAUSD’s duty under the state Constitution to take affirmative steps to alleviate de facto segregation. Finally, the court relied on subsection (d) of Section 31, whiсh provides that Section 31 leaves unaffected any preexisting court order or consent decree. The court concluded that LAUSD had adopted the original Policy in response to a court order directing LAUSD to “implement a reasonably feasible desegregation plan,” and that the record did not indicate that the state desegregation order had terminated in 1993, when the Office of Civil Rights of the U.S. Department of Edu
Friery filed a timely appeal to this court.
IV
We respectfully request that the California Supreme Court provide authoritative answers to the certified quеstions for the following reasons:
A
Article I, Section 31 of the California Constitution provides that instrumentalities of the State of California, including any school district, “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of ... public education.” The California Supremе Court has construed this provision only once, and has never had the opportunity to pass on Section 31’s applicability to a program like LAUSD’s Transfer Policy, under which a race-based restriction on the availability of a position, opportunity, or benefit applies only at the margins of a set range and, at least on its face, may benefit either whites or nonwhites.
Indeed, the California appellate courts have rendered only a few decisions construing Section 31, and none has established at what level a reviewing court is to examine whether a government program discriminates or gives preferential treatment: overall, or from the perspective of an individual applicant? Both the California Supreme Court аnd, more recently, the Third District Court of Appeal have examined Section 31’s impact on programs intended to benefit women and minorities exclusively, i.e., programs that established minimum levels for outreach to or participation by members of those groups. See Hi-Voltage Wire Works, Inc. v. City of San Jose,
One recent Court of Appeal decision has examined a program whose effort to maintain racial balance in a school district impacted both minorities and nonminorities. In Crawjord v. Huntington Beach Union High School District,
An additional aspect of LAUSD’s Policy has never been addressed by the California appellate courts and thus militates in favor of certification. No published California decision appears to discuss whether the existence of discretion to depart from admittedly race-based standards prevents the discrimination that a program works or the preferential treatment that it grants from being done “on the basis of race” within the meaning of Section 31. Con-nerly held that if a statute is facially discriminatory, the exercise of discretion in enforcing that statute cannot save it, see Connerly,
B
LAUSD points to the existence of a duty under the state Constitution to take affirmative steps to remedy de facto segregation. See Crawford v. Bd. of Educ.,
The Court of Appeal’s recent decision in Crawford v. Huntington Beach may run contrary to that view. That opinion indicates that with the addition of Article I, Section 31 to the Califоrnia Constitution, even if a school district remains under a duty to preserve racial balance in its schools, it may not do so by means that amount to race-based “discrimination” or “preferential treatment.” See Crawford v. Huntington Beach,
Although the Crawford v. Huntington Beach may be instructive, we believe that the safer course is to seek an authoritative resolution of this question from the California Supreme Court. We are, after all, bound by the decisions of the California intermediate appellate courts only to the extent that the California Supreme Court would likely reach the same conclusions. See, e.g., FDIC v. McSweeney,
C
The same considerations apply with even greater force to the issue of the “court order” exception of Section 31(d). The parties have not pointed us to a single decision by a Cаlifornia appellate court
Nor is the answer to the question we face altogether certain from the text of the state constitutional provision or from the facts of our case. The court order on which LAUSD relies in seeking to invoke subsection (d)’s exception is the order that terminated the Crawford v. Board of Education litigation. The Superior Court issued that order in furtherance of a 1980 ruling by the Cоurt of Appeal, Crawford v. Bd. of Educ.,
The Court of Appeal held that although there was no de jure segregation — and hence no violation of the federal Constitution — in LAUSD’s assignment of pupils to schools, id. at 504, 506, the district remained under a state constitutional obligation “to undertake reasonably feasible steps to alleviate school segregation regardless of cause,” id. at 506-07. The Cоurt of Appeal directed the trial court to “supervise the preparation and implementation of a reasonably feasible desegregation plan” by the school board, or in the absence of such a plan, to implement one itself. Id. (It instructed the trial court to refrain from the use of mandatory busing, which was not required by the federal Constitution and which could not bе imposed by state courts under a recent amendment to the state constitution. Id. at 507.)
On remand, the district did submit a desegregation plan, obviating the need for the district to order one. See Crawford v. Bd. of Educ.,
The Superior Court approved the district’s plan. Crawford v. Bd. of Educ., No. 822-854, at 7 (Cal.Super.Ct. Sept. 10, 1981) (Order Re Final Approval of School Board Desegregation Plan and Discharge of Writ of Mandate). It made seven modifications, dealing with school construction, terminology, publicizing transfer options, and the compilation of data. Id. at 4-7. The only modification pеrtaining to faculty was a requirement that “[t]he pupil-teacher ratio in predominantly Hispanic, Black, or Asian and Other schools operated under this plan ... be maintained at 27:1 or less.” Id. at 6.
With those modifications, the court found that “[t]he time ha[d] come to end these proceedings,” because LAUSD had “satisfied the mandate of the Court ... interpreted in light of the [California apрellate courts’ subsequent Crawford opinions].” Id at 7, 8. The court accordingly ordered the writ of mandate discharged, and it vacated all of its own outstanding orders, except those pertaining to court monitors. Id. at 8. The court “retain[ed] jurisdiction for the sole purpose of determining the matter of attorney’s fees.” Id; see Crawford,
It therefore appears that LAUSD promulgated the original version of the Policy at issue in this case as part of the plan that satisfied its obligation under the Court of Appeal’s decision in Crawford v. Board of Education, but not at the express instruction of that court or the Superior Court. Although the Superior Court issued an
We therefore cannot say with any certainty whether the court order terminating the Crawford litigation is one that would qualify the original LAUSD transfer policy for exemption under Section 31(d). Moreover, the Transfer Policy was ratified or re-ratified in 1997, after the effective date of Section 31, see Cal. Const. art. II, § 10. And there is no indication that the modificatiоns were required, requested, or approved by any court. Thus, even were we certain that the original policy could shelter within the exemption of Section 31(d), we would remain unsure as to whether this post-Proposition 209 successor policy would receive derivative protection by “relating back.” Accordingly, we respectfully request resolution of this question by the Califоrnia Supreme Court as well.
D
We add, as a final note, that our precedent requires us to resolve Friery’s state constitutional challenge before turning to his claim that the Transfer Policy violates the federal Constitution. See, e.g., Clark v. City of Lakewood,
E
Beсause neither the decisions of the California Supreme Court nor those of the California Courts of Appeal answer these important questions, we respectfully request an authoritative resolution from the California Supreme Court. Where, as here, a school district’s desegregation plan was originally prompted by state constitutional requirements, we believe that the continuing viability of such a plan following amendments to the state constitution poses a sensitive question of state law that is more appropriately decided by the courts of California than by a federal court of appeals.
V
The Clerk of Court is hereby directed to transmit forthwith to the California Supreme Court, under official seal of the Ninth Circuit, a copy of this order and request for certification and all relevant briefs and excerpts of record (including the parties’ lodging received June 24, 2002) pursuant to California Rule of Court 29.5(c).
IT IS SO ORDERED.