Public School Assignment Methods After Grutter and Gratz: The View From San Francisco

31 Pages Posted: 6 Dec 2019

Date Written: 2003


A few years ago, I chronicled my experiences and reflections as co-counsel in Ho v. San Francisco Unified School District. This suit, filed in 1994, challenged the constitutionality of a 1983 consent decree, which had been the basis for settling a race discrimination case the San Francisco Branch of the NAACP had brought in 1978 against the San Francisco Unified School District. The consent decree that the district court approved in 1983 mandated racial or ethnic quotas on the assignment of children to all public schools in San Francisco. The Ho suit generated attention due to the novelty of having a group of Asian Americans challenging a court-ordered school desegregation plan.

The Ho suit settled in early 1999, on the morning the trial was to begin. The key provisions of the settlement agreement were that the school district would immediately drop the use of quotas in assigning children to schools and that the district would develop a new student assignment plan which would not "assign or admit any student to a particular school, class or program on the basis of race or ethnicity of that student." The Ho plaintiffs, and later, the court, rejected the school district's first proposed plan because it did not live up to the written agreement. In 2001, the school district ultimately gained the approval of all the parties and the court for a new race-neutral assignment plan. The new assignment plan has been used twice to assign students - for classes starting in the fall of 2002 and 2003 - and will be used again for fall 2004 assignments.

This Article turns in Part II to a discussion of the potential impact of Grutter and Gratz on student assignment plans in public elementary and secondary schools. The cases draw a blurry line between permissible and impermissible admission plans in the higher education context. The resulting uncertainty may well lead public elementary and secondary school districts to conclude that it is prudent to use clearly race-neutral assignment plans rather than face the risk of having to defend a race-conscious plan through financially expensive and politically divisive litigation. If so, the experience in San Francisco may be instructive for other school districts as they attempt to formulate assignment plans that will both withstand constitutional scrutiny under Grutter and Gratz and will be politically palatable in their respective locales. Accordingly, Part III of the Article will detail the new assignment plan in San Francisco's public schools and report on its mixed results. On the basis of two years' experience, both the efficacy of the new assignment plan and its political viability are in question.

Suggested Citation

Levine, David I., Public School Assignment Methods After Grutter and Gratz: The View From San Francisco (2003). Hastings Constitutional Law Quarterly, Vol. 30, 2003, UC Hastings Research Paper No. 375, Available at SSRN:

David I. Levine (Contact Author)

UC Hastings Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States
415-565-4677 (Phone)

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