A Morally Repugnant Act

In December 1953, Thurgood Marshall represented the NAACP in Brown vs. Board of Education before the U.S. Supreme Court. His purpose was to expand the educational choices of black families by opening school doors that the government had locked.

Marshall said, “Distinctions by race are so evil, so arbitrary and invidious that a state bound to defend the equal protection of the laws must not involve them in any public sphere.” Five years earlier in Sipuel vs. Board of Regents of the University of Oklahoma, he argued, “Classification and distinction based on race or color have no moral or legal validity in our society. They are contrary to our Constitution and laws.”

Marshall’s drive to open school doors to blacks was important to a free society for two reasons. One, the essence of liberty is the ability to exercise one’s free will to make one’s own choices. When government expands our choices, it enhances our liberty. Two, a just government is one that treats its citizens impartially. Therefore a colorblind government moves us closer to a just government.

In 1996, the citizens of California voted to adopt a constitutional initiative, Proposition 209, to make our government more just by prohibiting it from making decisions based on race, sex, color, ethnicity or national origin. It passed with 54% of the vote.

In 1997, Proposition 209 formally became part of the California Constitution. With that, it superseded all prior state constitutional and statutory laws, regulations and codes to the contrary, including the state’s education code.

This, however, was irrelevant to the trustees and senior administrators of the Huntington Beach Union High School District. Despite the clear language of Proposition 209, which was patterned after the Civil Rights Act of 1964, it implemented in 1999 a race-based transfer policy, which meant you could not transfer from one school to another unless the school you were in was considered to be properly balanced in racial makeup.

The state education code rewards districts for having an open transfer policy but refers to racial and ethnic balancing elsewhere. The code therefore suggests that there should be no racial criteria in moving from one school to another. Balancing has two problems. One, Proposition 209 abolished the practice. Two, balancing is to be done based on districtwide, not local school area, demographics.

Two district schools, Ocean View and Westminster, have demographics that differ from the district as a whole. These two schools have a much higher proportion of minority residents, primarily Asians and Latinos. Overall, the district has more whites.

Students attending four high schools could transfer freely among those schools that were considered “balanced,” when their student populations are more reflective of districtwide demographics. But the doors were locked at “unbalanced” Ocean View and Westminster.

The entrance doors at those two schools were locked to minorities; the exit doors were locked to whites. In other words, the district’s policy turned Brown on its head. While Brown opened doors, expanded choices, and advanced us toward a colorblind society under a more just government, the district’s transfer policy locked doors, eliminated choices, established race as a criterion and made government more arbitrary and unjust.

The condition that the district abhors is not the segregation Marshall fought. When the school system of Topeka, Kan., locked its doors to Linda Brown in 1951, it was committing an act of segregation.

In the demographics of the two Huntington Beach school populations, there is no intentional act. The conditions are not the result of action by any party to separate specific groups from the body of society. The demographics are the natural aggregation of people having freely exercised their 1st Amendment right of association and their economic right to buy or rent where they can best afford.

The district was not happy with the “unbalanced” natural results of people having been free to choose. It used a tortured interpretation of doctrine of equal protection to impose its race-based transfer policy as a social remedy.

The district was wrong in both law and principle. It ignored the state Constitution, as amended by Proposition 209, to arrogantly “protect” the people from the consequences of their own decisions. In principle, this race-based transfer policy was morally repugnant, just as Marshall argued in Sipuel.

So I sued the district in 1999, with representation by the Pacific Legal Foundation. On May 31, the 4th District Court of Appeal unanimously voided a lower court’s decision. The appellate court decision read, ‘We agree with [Crawford’s] contention on appeal--that the policy violates Proposition 209. Accordingly, we reverse the judgment.”

The policy now is voided as it should have been.

The court’s ruling, by upholding Proposition 209, not only reaffirmed the founding principles of rule of law and consent of the governed but also enhanced our liberty, advanced us toward a more colorblind society, and moved us closer to a more just, impartial government.