The State 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 employment, public education, or public contracting.

— Art. I, Sec. 31,

California Constitution

 
The San Francisco Ho Case

Ho v. San Francisco Unified School District, a class action filed in 1994, forced the San Francisco school district to stop its practice of classifying students by race for assignment to the city's K-12 schools.  San Francisco's unconstitutional practice prevented many Chinese American children from attending their own neighborhood schools.  The case was ultimately a success, bringing a halt to the school district's use of race.

Under the challenged admissions program, nine ethnic groups were arbitrarily defined, including “Chinese.” Members of at least four of the groups were required to be present at each school; and no one group could represent more than 45 percent of the student body at any regular school or 40 percent at any alternative school. The promotion of racial diversity, and not the remediation of past racial discrimination, was the only real purpose. By the time of the Ho challenge, the school district had enlarged the original nine arbitrary racial categories to thirteen equally arbitrary categories to take into account the growing prominence of additional racial groups in the district.

The burden of San Francisco's racial balancing program fell heaviest on students identified as “Chinese.” With a long history in San Francisco, over the years, Chinese Americans had come to constitute the city’s largest identifiable ethnic group. Accordingly, in the San Francisco school district’s student assignment process, a child identified as Chinese was most likely to be “capped out”—that is, barred because the child’s racial quota was exceeded—at desired schools and forced to attend a non-chosen school, often far from his or her neighborhood.

The named plaintiffs’ situations amply illustrate the discrimination meted out to Chinese American schoolchildren by school officials:

• Brian Ho was five years old at the time the suit started. In 1994, he was turned away from his two neighborhood kindergartens because the schools had accepted the maximum allowed percentage of “Chinese” schoolchildren. He was assigned to a school in another neighborhood.

• Patrick Wong, then fourteen years old, applied for admission to Lowell High School in 1994. He was rejected because his index score was below the minimum required for Chinese American applicants. However, his score was high enough that he would have been admitted to Lowell had he been a member of any other racial or ethnic group recognized in the consent decree. He was rejected at two other high schools because such schools had also accepted the maximum number of schoolchildren of Chinese descent. When he tried to apply to a fourth high school, a newly established academic high school, his mother was told that all spaces for Chinese Americans were “filled” even though spaces for applicants of other racial or ethnic groups were still available.

• The family of Hillary Chen, then eight years old, moved from north of Golden Gate Park to a neighbor-hood south of the park in December 1993. Hilary was not allowed to transfer into any of three elementary schools near her new home because all three schools had accepted the maximum number of Chinese Ameri-can schoolchildren.

Filed in 1994 in the United States District Court for the Northern District of California, the case was bitterly fought through the courts for five years, including an interlocutory appeal to the Ninth Circuit Court of Appeals which established that the school district's racial assignment plan would have to be examined under strict scrutiny—a test both the district court and the Ninth Circuit indicated it would almost certainly fail.  See Ho v. San Francisco Unified Sch. Dist., 147 F.3d 854 (9th Cir. 1998).  Finally, the defendants capitulated and agreed to a settlement by which they stopped their use of race.  See Ho v. San Francisco Unified Sch. Dist., 59 F. Supp. 2d 1021 (N.D. Cal. 1999).

Since that time, members of the Asian American Legal Foundation have carefully monitored the student assignment plans used by the San Francisco Unified School District, to ensure that students are never again classified by race for admission to the city's schools.

 

 
 
       . . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. . . .

 

—  Fourteenth Amendment, United States Constitution