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72 School Segregation “More than twenty years have elapsed with no break in this continuing failure. This, in my opinion, is sufficient to support an inference of ‘segregative intent.’”245 Yet, in an interesting twist of legal indeterminacy, the Ninth Circuit, after a hearing en banc, found that the SJUSD had, in fact, acted with segregative intent in maintaining schools that were imbalanced .246 The appellate court came to the conclusion by finding cumulative evidence that the district maintained and perpetuated segregated schools via a number of actions, for example, site selections of new school construction, faculty and staff assignments, and ignoring state guidelines in desegregation efforts.247 In 1985, Judge Peckham faced the task of addressing which desegregation plan to adopt—the district’s or the plaintiffs’.248 In July 1985, the SJUSD asked the district court to approve its desegregation plan. The plaintiffs argued that the plan did not go far enough in addressing the Ninth Circuit’s mandate to desegregate the district. On August 27, 1985, Judge Peckham rejected the district’s plan and ordered it to submit a comprehensive one. On September 30, 1985, the district did so, and on November 15, 1985, the plaintiffs responded with their own plan. The district filed a brief defending its plan and criticizing the plaintiffs’ proposal.249 Finally, on December 15, 1985, the district court commenced a ten-day hearing to decide an appropriate remedy.250 The school district’s and plaintiffs’ proposed desegregation plans differed significantly. In a capsule description,251 the district’s plan (a) employed a largely voluntary approach, (b) established four district-wide “dedicated” magnet schools and sixteen magnet “programs,” (c) utilized majority-to-minority transfers, and (d) proposed some school closures. The plan’s goal was to have 75% of the district’s students attending desegregated schools in four to five years (by the 1990–1991 school year). By contrast, the plaintiffs’ plan can be briefly described252 as (a) emphasizing voluntary reassignments but also involving a mandatory element, (b) dividing the district into three vertical attendance zones, and (c) using “controlled choice” for regular school and magnet school/program assignments . The plaintiffs’ plan would lead to 100% of the district’s students being in desegregated schools in the first year of implementation of the plan. Judge Peckham adopted, with modifications, the district’s desegregation plan. Defendant’s expert witness Dr. Christine Rossell’s testimony that the plaintiffs’ plan included a greater number of mandatory student assignments helped to influence the court’s decision. Such assignments, School Segregation 73 she asserted, would create bitterness and divisiveness in the community and likely prompt White flight.253 Judge Peckham ruled that the district’s plan was a more moderate, thus appropriate, proposal, but he believed the district did not need four years to enroll only 75% of its students in desegregated schools. He ordered the district to enroll 90% of its students in such schools by December 31, 1989.254 On appeal, the Ninth Circuit affirmed the district court’s ruling.255 What is the contemporary status of imbalanced/balanced schools in the SJUSD? To address this, a racial balance/imbalance analysis (conducted by the author) was undertaken, using district data for the 2004–2005 school year (California Department of Education, 2005). Excluding alternative and continuation schools and very small programs (e.g., San Jose Community Middle School, n=15 students) from the analysis, the district had forty-three elementary, middle, and high schools in 2004–2005; the total district enrollment consisted of 28.7% White students (compared to 57.0% in 1984–1985) and 71.3% minority students (70.9% being Mexican American /other Latino; combined minorities were 43.0% in 1984–1985). Using the ±15% formula, of the total forty-three schools, twenty-two (51.2%) were imbalanced (nine predominantly White and thirteen predominantly minority); twenty-one schools (48.8%) were balanced. In sum, although the White and minority enrollments significantly shifted since 1984–1985, the SJUSD continued to demonstrate substantial racial isolation, as similarly seen when the desegregation order was ruled on twenty years ago. Contemporary Status of Mexican American Desegregation Litigation and School Segregation Mexican American desegregation lawsuits have, as is the situation with African American desegregation litigation, for the most part, come to an end. The demise of school segregation litigation and subsequent remedies have come about through a long process of antidesegregation efforts by presidential administrations since 1968 (i.e., Nixon, Reagan, and George H.W. Bush), including the appointments of...

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