Tinsley v. Palo Alto Unified School District (91 Cal. App. 3d 871, 1979)

Opinion

SIMS, J.

Petitioners, the parents of elementary school children in various elementary school districts within the territory embraced within the boundaries of Sequoia Union High School District and in Palo Alto Unified School District, seek a writ of mandate to compel the respondent elementary districts and others to submit to the court a reasonably feasible plan to eliminate or alleviate alleged racially segregated schools existing within those districts. They have appealed from a judgment entered following an order sustaining, without leave to amend, the demurrers to their second amended petition as amended by a third amendment. It appears from the pleadings that the alleged segregation of which complaint is made is interdistrict in nature, and allegedly can only be eliminated or alleviated by an interdistrict plan. The trial court ruled that the petition, as thrice amended, failed to state a cause of action because it fails to allege any intentionally segregative acts or omissions requiring interdistrict relief, and, alternatively, because it fails to allege any acts or omissions, whether intentionally segregative or not, which require interdistrict relief.

The issue as so framed has been resolved in accordance with the position of respondents under the equal protection clause of the Fourteenth Amendment of the United States Constitution as construed in Milliken v. Bradley (1974) 418 U.S. 717 [41 L.Ed.2d 1069, 94 S.Ct. 3112]). It was left unresolved under our California Constitution in Crawford v. Board of Education (1976) 17 Cal.3d 280 (see p. 303, fn. 14) [130 Cal.Rptr. 724, 551 P.2d 28]. Preliminarily we determine that there is no merit to the contention of certain respondents that the judgment against them is not final and not appealable. We sustain the contention of another respondent that the children themselves are proper parties plaintiff, but find that defect is curable and not dispositive of the action. Finally we recognize that the rulings under the federal Constitution are neither controlling nor persuasive in the light of principles developed under the California Constitution. The judgment must be reversed and the case must be remanded for a determination, after appropriate amendment and answer, of whether there is segregation in a recognizable geographic area entitling the pupils to relief because the minority enrollment in one district within that area is so disproportionate as realistically to isolate them from other students in other districts in that area; and, if so, whether there are reasonably feasible steps to eliminate or alleviate the racial imbalance that gives rise to such state constitutionally proscribed segregation.

I

Four of the eight elementary school districts involved and the San Mateo County Committee on School District Organization jointly interposed a motion to dismiss the appeal on the ground that there is no final judgment from which an appeal may be taken. That motion was denied, but it is renewed in the brief jointly filed for those respondents and two other elementary school districts, all collectively referred to as “the San Mateo County respondents.” The case remains pending against the State of California, and the California State Board of Education because of their joint return by way of answer to the second amended petition for writ of mandate. The record also reflects that there is an outstanding stipulation that the Sequoia Union High School District and the San Mateo County Superintendent of Schools, originally named among the respondents in that petition, need not respond “until 30 days after the Superioi Court has decided the issue of whether a desegregation remedy will be ordered or upon 30 days notice by petitioners.”

Subdivision (a) of section 904.1 of the Code of Civil Procedure provides that an appeal may be taken from a judgment, excluding, with exceptions not relevant here, any appeal from an interlocutory judgment. It is generally recognized that the rule which only permits an appeal from one final judgment is designed to prevent oppressive and costly piecemeal disposition and multiple appeals in a single action, and so requires that review of intermediate rulings should await the final disposition of the case. (See Knodel v. Knodel (1975) 14 Cal.3d 752, 760 [122 Cal.Rptr. 521, 537 P.2d 353], quoting from 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 36, p. 4050; and Gosney v. State of California (1970) 10 Cal.App.3d 921, 928-929 [89 Cal.Rptr. 390].) The San Mateo respondents acknowledge that section 579 of the Code of Civil Procedure provides as follows: “In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment is proper.” Under this section when there is a several judgment resolving all issues between a plaintiff and one defendant, either party may appeal from an adverse judgment, although the action remains pending between the plaintiff and other defendants. (See Justus v. Atchison (1977) 19 Cal.3d 564, 568 [139 Cal.Rptr. 97, 565 P.2d 122]; Aetna Cas. etc. Co. v. Pacific Gas & Elec. Co. (1953) 41 Cal.2d 785, 788-790 [264 P.2d 5, 41 A.L.R.2d 1037]; Howe v. Key System Transit Co. (1926) 198 Cal. 525, 528-530 [246 P. 39]; Rocca v. Steinmetz (1922) 189 Cal. 426, 428-429 [208 P. 964]; Baxter v. Boege (1916) 173 Cal. 589, 591-594 [160 P. 1072]; National Electric Supply Co. v. Mount Diablo Unified School Dist. (1960) 187 Cal.App.2d 418, 421-422 [9 Cal.Rptr. 864]; South v. Wishard (1956) 146 Cal.App.2d 276, 281-282 [303 P.2d 805]; Stafford v. Yerge (1956) 139 Cal.App.2d 851, 853-854 [294 P.2d 721]; Huntoon v. Southern T. & C. Bank (1930) 107 Cal.App. 121, 130-131 [290 P. 86]; and Witkin, op. cit. supra, § 42, p. 4057.)

Nevertheless those respondents assert that the one final judgment rule must be applied to defeat the appeal in this case because the interests of the state, a remaining defendant, and the local respondents in this case are identical both in terms of the legal issues raised and in the relief sought by the petitioners, and, therefore, the judgment in this case cannot be a complete determination of the matter. On its face this argument is inherently inconsistent with the position successfully advocated by those respondents in the lower court when they secured the order sustaining their demurrers without leave to amend and the ensuing judgment. If, as now stated, the local districts are mere agencies of the state so that any relief directed against the state will by necessity affect them, the trial court may have erred in sustaining the demurrers. On that theory the appeal should not be dismissed, but the judgment should be reversed. The premise that there are identical interests does not bear scrutiny. The local districts, as agents, may have limited powers in interdistrict affairs, whereas the state, as set forth below, has plenary powers in all school district affairs. (Cf. part IV, below.) The legal issues are not necessarily the same. In any event, if they are, it should be so determined on this appeal and the existing judgments should be set aside if a cause of action has been stated against the local districts as agencies of the state.

Furthermore the precedents upon which those respondents rely do not support their position. In Hohorst v. Hamburg-American Packet Co. (1893) 148 U.S. 262 [37 L.Ed. 443, 13 S.Ct. 590], the court did rule that a decree dismissing one defendant who allegedly was jointly responsible for a patent infringement was not an appealable final decree. The court applied the prevailing federal rule, apparently predicated upon the English common law and applied in federal legal, equitable and admiralty matters. The federal common law rule cannot control the statutes of this state.

In Call v. Alcan Pacific Co. (1967) 251 Cal.App.2d 442 [59 Cal.Rptr. 763], the court did entertain what appeared to be an untimely appeal from a judgment in favor of a surety which had been entered more than three months prior to the judgment in favor of the principal from which a timely appeal was perfected. The court relied upon Nolan v. Smith (1902) 137 Cal. 360 [70 P. 166], and noted: “When a lawsuit involves a single claim against principal and surety, an appellate court should not be subjected to their separate appeals.” (251 Cal.App.2d at p. 449, fn. 11.) The court noted that there was no finding of any circumstance which would permit separation of the liability of the surety and principal, and adopted the position the judgment in the surety’s favor was premature rather than void and only became final, and appealable, upon entry of the judgment in the principal’s favor. The alleged relationship of principal and agent between the state and local district does not necessarily create a relationship of principal and surety. In Nolan v. Smith, supra, upon which the A lean court relied, the court did dismiss the appeal by the claimant from a judgment dismissing the sureties, on the alleged tortfeasor’s official bond. The general ruling of that case has been strictly qualified, if not overruled. In Rocca v. Steinmetz, supra, 189 Cal. 426, the court stated: “That the judgment must be final against the defendant in whose favor it is given is essential to the right of appeal. But such a judgment is final within the meaning of that term, as given, in section 963. No other judgment can be entered against him, as he will go free if the case goes no further against him. Nolan v. Smith, supra, must be overruled on this point, unless it is considered as creating a special class of cases consisting of suits on bonds of justices of the peace, which would make such cases a class by themselves. We express no opinion as to whether this is allowable or not. It is sufficient to hold that the case is not in point here.” (189 Cal. at p. 428.) We agree that neither A lean nor Nolan can govern the case here. We must determine at this point whether or not appellants have stated a cause of action against the local districts.

II

In their second amended petition, as amended by the third amendment, 18 petitioners set forth their names and allege, “They are parents of minority, elementary school age children who do, or are eligible to, attend elementary schools operated by the Ravenswood School District.” There follow the names and ages of 21 children. The 16 remaining petitioners, likewise named, allegedly are residents of San Mateo County or Santa Clara County. It is stated “They are parents of non-minority elementary school age children.” There follow the names of sixteen children, eight in the Menlo Park district, two in Las Lomitas district, four in the Portola Valley district and two in the Palo Alto district. It is further alleged: “Petitioners bring this action on their own behalf and on behalf of all persons similarly situated.”

Throughout the proceedings respondent Palo Alto Unified School District has insisted as one ground of demurrer that petitioners have failed to allege facts showing a right to sue for the relief they seek. In its order sustaining and overruling respondents’ demurrers to the petition, as revised by the third amendment, without leave to amend, the court upheld other grounds discussed below. It expressly provided “The other grounds of Demurrer by the Respondents are overruled.” (See in. 3.) Respondent Palo Alto Unified School District has cross-appealed from that portion of the ensuing judgment which impliedly provides that petitioners have standing to sue in this matter.

With exceptions not pertinent here, section 367 of the Code of Civil Procedure provides: “Every action must be prosecuted in the name of the real party in interest, . . .” In Parker v. Bowron (1953) 40 Cal.2d 344 [254 P.2d 6], the court distinguished between capacity to sue and standing to sue, as follows: “Insofar as the question of capacity to sue is concerned, not having been raised by demurrer or answer, it must be deemed to have been waived and cannot now be urged upon appeal. [Citations.] However, the question of standing to sue is different from that of capacity. Incapacity is merely a, legal disability, such as infancy or insanity, which deprives a party of the right to come into court. The right to relief, on the other hand, goes to the existence of a cause of action. It is not a plea in abatement, as is lack of capacity to sue. Where the complaint states a cause of action in someone, but not in the plaintiff, a general demurrer for failure to state a cause of action will be sustained. [Citation.] This objection is not waived by failure to raise it by demurrer or answer, and may be raised at any point in the proceedings. [Citation.]” (40 Cal.2d at p. 351. See also, Klopstock v. Superior Court (1941) 17 Cal.2d 13, 17-19 [108 P.2d 906, 135 A.L.R. 318]; Friendly Village Community Assn., Inc. v. Silva & Hill Constr. Co., supra, 31 Cal.App.3d 220, 223-224 [cf. Code Civ. Proc., § 374 as added by Stats. 1976, ch. 595, § 2]; Oakland Municipal Improvement League v. City of Oakland (1972) 23 Cal.App.3d 165, 170-171 [100 Cal.Rptr. 29]; Hart v. County of Los Angeles (1968) 260 Cal.App.2d 512, 516 [67 Cal.Rptr. 242]; McCabe v. Atchison, T. & S. F. R. Co. (1914) 235 U.S. 151, 164 [59 L.Ed. 169, 175, 35 S.Ct. 69]; Brown v. Board of Trustees of La Grange Ind. Sch. Dist. (5th Cir. 1951) 187 F.2d 20, 25; and Tyree v. Smith (E.D.Tenn. 1968) 289 F.Supp. 174, 175. Cf. Smith v. Wickline (W.D.Okla. 1975) 396 F.Supp. 555, 557.)

Support for the Palo Alto district’s position is found in McCabe v. Atchison T. & S. F. R. Co., supra, 235 U.S. 151. There the complainants sought to enforce their civil rights to equal accommodations on railroad trains. The court pointed out that the complainants failed to allege that they had ever requested or been refused such accommodations. It concluded, “The desire to obtain a sweeping injunction cannot be accepted as a substitute for compliance with the general rule that the complainant must present facts sufficient to show that his individual need requires the remedy for which he asks.” (235 U.S. at p. 164 [59 L.Ed. at p. 175].) In the Brown case, supra, 187 F.2d 20, the Fifth Circuit applied this rule to dismiss a suit by a parent who sought relief from discrimination against his daughter by a school district. The court ruled, “. . . plaintiff has wholly failed to plead or prove any deprivation of his civil rights and it is elementary that he has no standing to sue for the deprivation of the civil rights of others.'1'1 (187 F.2d at p. 25, italics the court’s. See also Shaw v. Garrison (5th Cir. 1977) 545 F.2d 980, 983, fn. 4 [revd. on other grounds sub nom. Robertson v. Wegmann, 436 U.S. 584 (56 L.Ed.2d 554, 98 S.Ct. 1991)]; O'Malley v. Brierley (3d Cir. 1973) 477 F.2d 785, 789; and Armstrong v. Board of Education of City of Birmingham, Ala. (N.D.Ala. 1963) 220 F.Supp. 217, 218 [revd. on other issues, Armstrong v. Board of Education of City of Birmingham (5th Cir. 1964) 333 F.2d 47.)

In this case the gravamen of the petitioners’ complaint is that “petitioner’ [sic] minority and non-minority children are being deprived of equal opportunities for education and are being denied equal protection and due process of law.” The state and federal decisions recognize that it is the child’s right to equal educational opportunities that is protected by the Constitution. “[I]t is the constitutional right to equal treatment for all races that is being protected.” (Dayton Board of Education v. Brinkman (1977) 433 U.S. 406 at p. 424 [53 L.Ed.2d 851 at p. 866, 97 S.Ct. 2766 at p. 2777] Brennan, J., conc. See also Brown v. Board of Education, supra, 347 U.S. 483, 495 [98 L.Ed. 873, 881]; Crawford v. Board of Education, supra, 17 Cal.3d 280, 307; and Jackson v. Pasadena City School Dist. (1963) 59 Cal.2d 876, 880 [31 Cal.Rptr. 606, 382 P.2d 878].) It would appear that the children, whose constitutional rights are allegedly violated, are the real parties in interest.

We note, however, that, without objection, parents have themselves alone sought and obtained relief. (Dayton Board of Education v. Brinkman, supra, 433 U.S. at p. 408, fn. 1 [53 L.Ed.2d at p. 856, 97 S.Ct. at p. 2769]; and Keyes v. School District No. 1, Denver, Colo. (1973) 413 U.S. 189, 191 [37 L.Ed.2d 548, 553, 93 S.Ct. 2686].) In Keyes, Mr. Justice Powell, in dissenting in part, noted, with respect to the rights and duties parents have with respect to their children, “The law has long recognized the parental duty to nurture, support, and provide for the welfare of children, including their education.” (413 U.S. at pp. 246-247 [37 L.Ed.2d at p. 585].) Petitioners contend that a violation of parents’ fundamental right to educate their children as they choose, gives them a right to sue. (See Keyes v. School District No. 1, Denver, Colo., supra, Powell, J., dissenting, at p. 247 [37 L.Ed.2d at p. 585]; Griswold v. Connecticut (1965) 381 U.S. 479, 482 [14 L.Ed.2d 510, 513, 85 S.Ct. 1678]; Pierce v. Society of Sisters (1925) 268 U.S. 510, 534-535 [69 L.Ed. 1070, 1077-1078, 45 S.Ct. 571, 39 A.L.R. 468]; Meyer v. Nebraska (1923) 262 U.S. 390, 399-400 [67 L.Ed. 1042, 1045, 43 S.Ct. 625, 29 A.L.R. 1446]; Johnson v. San Francisco Unified School District (9th Cir. 1974) 500 F.2d 349, 352-353; Smuck v. Hobson (D.C.Cir. 1969) 408 F.2d 175, 179, fn. 11; and In re Roger S. (1977) 19 Cal.3d 921, 928 [141 Cal.Rptr. 298, 569 P.2d 1286].) Although the violations alleged may have a tangential effect on the choices available to the parents, it is not directly alleged that such parental freedom of choice has been violated. (See International Union of United Auto. etc. Workers v. Department of Human Resources Dev., supra, 58 Cal.App.3d 924, 935.)

In Pasadena City Bd. of Education v. Spangler (1976) 427 U.S. 424 [49 L.Ed.2d 599, 96 S.Ct. 2697], the court recognized the derivative nature of any parent’s right in holding that the action was moot as to the individual respondents, the original student plaintiffs and their parents, because the students had all graduated from the school system under attack. (427 U.S. at pp. 429-430 [49 L.Ed.2d at p. 605].)

In Serrano v. Priest (1971) 5 Cal.3d 584 [96 Cal.Rptr. 601, 487 P.2d 1241] (cert. den., 432 U.S. 907 [53 L.Ed.2d 1079, 97 S.Ct. 2951]), the action was brought by the school children and their parents jointly. {Id., at p. 589.) The right of the children to sue was phrased as follows: “[W]e are satisfied that plaintiff- children have alleged facts showing that the public school financing system denies them equal protection of the laws because it produces substantial disparities among school districts in the amount of revenue available for education.” {Id., at p. 618.) The right of the parents to sue was predicated upon their standing as taxpayers to seek an injunction “to prevent public officers of a county from acting under an allegedly void law.” (Id., at p. 618.) No such relief is sought by the parents in this case. We also note that in Bustop v. Superior Court (1977) 69 Cal.App.3d 66 [137 Cal.Rptr. 793], the court ordered the trial court to permit an organization of 65,000 parents to intervene in the Crawford case (Crawford v. Board of Education, supra, 17 Cal.3d 280), to participate in the fashioning of any decree which might result in the mandatory reassignment and busing of students. (69 Cal.App.3d at p. 73. See also Johnson v. San Francisco Unified School District, supra, 500 F.2d 349, 352-354; and Smuck v. Hobson, supra, 408 F.2d 175, 177-182. Cf. Hatton v. County Board of Education of Maury Co., Tenn. (6th Cir. 1970) 422 F.2d 457, 460-461.) These decisions indicate that the parents may have an interest in the remedy to be granted, but they do not destroy the principle that a violation of the child’s right must be shown before any remedy may be invoked.

The allegation “Petitioners bring this action on their own behalf and on behalf of all persons similarly situated” adds naught to their case. It is established that in order to sustain a class suit the complainant must be a person who is entitled to the right asserted. (Parker v. Bowron, supra, 40 Cal.2d 344.) In Parker the court stated, “Parker cannot give himself standing to sue by purporting to represent a class of which he is not a member.” (40 Cal.2d at p. 353. See also, Pasadena City Bd. of Education v. Spangler, supra, 427 U.S. 424, 430 [49 L.Ed.2d 599, 605].)

Appellants also assert that the parents’ right to sue may be predicated on the principle that the failure of a minor to proceed through a guardian ad litem does not affect the jurisdiction of the court and may be waived (see Pacific Coast etc. Bank v. Clausen (1937) 8 Cal.2d 364, 366 [65 P.2d 352]; Dunn v. Dunn (1896) 114 Cal. 210, 212 [46 P. 5]: Cikuth v. Loero (1936) 14 Cal.App.2d 32, 33 [57 P.2d 1009]; Hughes v. Quackenbush (1934) 1 Cal.App.2d 349, 362-363 [37 P.2d 99]; and King v. Wilson (1931) 116 Cal.App. 191, 193-195 [2 P.2d 833]. See also Johnston v. Southern Pacific Co. (1907) 150 Cal. 535, 539 [89 P. 348]; and In re Cahill (1887) 74 Cal. 52, 57 [15 P. 364]), or an amendment appointing such a guardian may be permitted. .(In re Cahill, supra, at pp. 54-59. Note, also, Jolicoeur v. Mihaly (1971) 5 Cal.3d 565, 582, fn. 12 [96 Cal.Rptr. 697, 488 P.2d 1]; and Doyle v. Loyd (1941) 45 Cal.App.2d 493, 496-497 [114 P.2d 398].) That argument misses the mark. Here the shoe is on the other foot; it is the parent, not the minor, who is originally before the court.

At oral argument and by supplemental briefs petitioners for the first time contended that they had standing under the general principle adopted and endorsed in Bd. of Soc. Welfare v. County of L. A. (1945) 27 Cal.2d 98 [162 P.2d 627], reading as follows; “ ‘[B]y the preponderance of authority . . . where the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the relator need not show that he has any legal or special interest in the result, since it is sufficient that he is interested as a citizen in having the laws executed and the duty in question enforced. . . .’ ” (27 Cal.2d at pp. 100-101, quoting 35 Am.Jur., § 320, p. 73 [state board seeking local government compliance with its orders]. Accord, Hollman v. Warren (1948) 32 Cal.2d 351, 357 [196 P.2d 562] [applicant seeking to force Governor to exercise discretion, denied by alleged unconstitutional law, to appoint notaries]; McDonald v. Stockton Met. Transit Dist., supra, 36 Cal.App.3d 436, 440 [rule not applied]; Residents of Beverly Glen, Inc. v. City of Los Angeles, supra, 34 Cal.App.3d 117, 127 [residents’ organization attacking use permit granted pursuant to an alleged unconstitutional ordinance]; American Friends Service Committee v. Procunier, supra, 33 Cal.App.3d 252, 256 [attack on rules and regulations, of Adult Authority by corporations interested in prisoner welfare]; Diaz v. Quitoriano (1969) 268 Cal.App.2d 807, 811 [74 Cal.Rptr. 358] [class action to force Department of Social Welfare to advise petitioner and others of their rights]; and Fuller v. San Bernardino Valley Mun. Water Dist., supra, 242 Cal.App.2d 52, 58 [right of petitioners for formation of nonmunicipal water district to secure order terminating attempted subsequent annexation of some territory by neighboring district]. See also, Ballard v. Anderson (1971) 4 Cal.3d 873, 876 [95 Cal.Rptr. 1, 484 P.2d 1345, 42 A.L.R.3d 1392] [public interest precluding dismissal as moot]. Note, Code Civ. Proc., § 526a; Serrano v. Priest, supra, 5 Cal.3d 584, 618; and Blair v. Pitchess (1971) 5 Cal.3d 258, 267-270 [96 Cal.Rptr. 42, 486 P.2d 1242, 45 A.L.R.3d 1206].) The parents here are not suing as an organization to enforce the rights of their own members. Their interest as parents and members of the public, as we have seen, may make them proper parties, and justify their intervention in the action. Nevertheless in the face of proper objection the children should be joined too. As we construe the record and the order of the lower court, the trial court never did reach the point of exercising its discretion to permit the parents to sue solely in their own name on behalf of their children, nor did it determine that there was no need for the appointment of a. guardian ad litem. There is some merit to Palo Alto district’s contention that a showing of violation of personal rights, asserted by those allegedly injured, rather than mere public interest, should be a requisite in cases of this nature so that the rights of the children themselves may be properly protected. (See Sierra Club v. Morton (1972) 405 U.S. 727 [31 L.Ed.2d 636, 92 S.Ct. 1361].) There the court stated: “The requirement that a party seeking review must allege facts showing that he is himself adversely affected does not insulate executive action from judicial review, nor does it prevent any public interests from being protected through the judicial process. It does serve at least as a rough attempt to put the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome.” (405 U.S. at p. 740 [31 L.Ed.2d at p. 646].)

For the purposes of this case it is unnecessary to consider whether the failure to join the minor students as plaintiffs requires dismissal of the action, or whether it is a defect which may be waived. We merely need conclude that in the face of objection, such as interposed by the Palo Alto district in this case, the minors should be joined as plaintiffs. The error of the trial court in ruling on that phase of the Palo Alto district’s demurrer does not require an affirmance of the judgment. It is analogous to an erroneous ruling on a special demurrer, which does not warrant a reversal but a remand for amendment. Here in view of the trial court’s favorable rulings, the petitioners never had cause to seek to amend by bringing in their children as parties. In Klopstock v. Superior Court, supra, 17 Cal.2d 13, the court upheld an amendment which permitted further prosecution of an action by a proper party, despite a prior ruling that the original plaintiff had no standing to sue. The court stated: “The defendants have been fully apprised since the filing of the original complaint of the facts which are relied upon to state a right to relief against them in behalf of the corporation. Under the facts of this case, therefore, we hold that the amendment complained of did not constitute the statement of a wholly different cause of action which would prevent amendment of the complaint, but, on the contrary, was well within the liberal discretion which is granted to the courts by Code of Civil Procedure, section 473.” (17 Cal.2d at p. 21. See also, La Sala v. American Sav. & Loan Assn., supra, 5 Cal.3d 864, 872, 873-874 & 875-876.)

So here, insofar as the petitioners may have stated a cause of action on behalf of their children they should be permitted to amend to make the children themselves parties. We therefore must analyze the merits of the complaint from the standpoint of the children’s constitutional rights.

Ill

In our examination of the charging facts alleged by the petitioning parents we treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. (Serrano v. Priest, supra, 5 Cal.3d 584, 591; Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713 [63 Cal.Rptr. 724, 433 P.2d 732]; People ex rel. Lynch v. San Diego Unified School Dist. (1971) 19 Cal.App.3d 252, 257 [96 Cal.Rptr. 658] [cert. den., 405 U.S. 1016 (31 L.Ed.2d 478, 92 S.Ct. 1288)].)

After setting forth the status of petitioners (see part II above), it is alleged that the respondents named, with the exception of the San Mateo County Superintendent of Schools, are political entities organized and existing under the laws of the State of California. It is further stated that all of the respondents involved in this appeal and the respondents state and state board of education (see part I above), but not Sequoia Union High School District, are joined on the grounds stated in Code of Civil Procedure section 379, subdivision (a)(1) and section 379, subdivision (c); and that all respondents are likewise joined on the grounds set forth in section 389, subdivision (a) of that code. It is expressly alleged that the Sequoia Union High School District (not a party to this appeal, see part I) is a fully desegregated district which is included only because the relief requested may affect it.

Petitioners set forth their conclusions concerning the respective obligations of the state and the rights of children in this state with regard to a public school education under the provisions of article I, section 7 and article IX of the state Constitution; and their understanding of the relationship between respondents and the state under article IX. The legal principles governing those conclusions are reviewed below.

The petition alleges: “For at least five years past and continuing to the present, racially segregated schools exist in the respondent school districts. Out of a total of approximately thirteen thousand students attending elementary schools within the boundaries of the Sequoia Union High School District, approximately ten thousand non-minority students attend schools which are predominantly non-minority and approximately three thousand minority students attend schools which are predominantly minority. [¶] A comparable situation exists in the Palo Alto Unified School District. Thus both non-minority and minority students are racially isolated and deprived of an integrated educational experience.”

In support of these allegations the petitioners have attached and incorporated a computation setting forth in percentages the ethnic composition of the student population of each elementary school district in the respondent school districts. Reference to the original petition reveals that the computation was for the school year 1975-1976. It reflects that of five elementary schools in the Ravenswood City School District, four each had 98 percent minority students, and a fifth, 73 percent. In the other schools of elementary school districts within the Sequoia Union High School District the percentage of minority students ranged from 1 percent to 64 percent. It is specifically alleged that the four schools in the Ravenswood City School District are minority segregated schools, and generally alleged that the minority enrollments in said schools are so disproportionate as realistically to isolate minority students from other students and thus to deprive minority students of a racially integrated educational experience.

Insofar as the complaint purports to allege that racially segregated schools exist in each of the respondent school districts we must analyze the use of the term “segregated.” In Crawford v. Board of Education, supra, 17 Cal.3d 280, the court stated: “Our decisions . . . require only that school districts take reasonable and feasible steps to eliminate segregated schools, i.e., schools in which the minority student enrollment is so disproportionate as realistically to isolate minority students from other students and thus deprive minority students of an integrated educational experience.” (17 Cal.3d at p. 303.) That language, however, was qualified by a footnote reading: “In neither this case, nor the companion San Bernardino case {post at p. 311 . . .) has any party suggested the propriety or necessity of implementing a ‘metropolitan plan’ remedy that would involve the assignment of pupils outside of the particular school district in which they reside. (Cf. Milliken v. Bradley, supra, 418 U.S. 717.) Accordingly, we have not considered that issue and address only the question of an individual school board’s duty with respect to the students within its own district.” (Id., fn. 14.) That this definition referred to intradistrict segregation is also evidenced from the following page, where the opinion states: “In sum, from a constitutional standpoint, we see nothing inherently invalid in the fact that percentages of various racial or ethnic groups may vary, even significantly, in different schools throughout a school district, or even that a particular minority group may be completely unrepresented in a particular school. On the other hand, if the minority enrollment in a school is so disproportionate as realistically to isolate minority students from other students in the district, a finding of unconstitutional segregation will generally be proper.” (Id., at p. 304, italics added, fn. omitted.) Significantly the footnote states: “Although, as we have emphasized, for constitutional purposes a school may be desegregated without being racially balanced, this does not mean that reference should not be made to the racial composition of the district as a whole in determining whether a given school is segregated or not. Thus, for example, in a school district in which ‘minority’ students significantly outnumber ‘majority’ students, a school whose racial composition might in some other district make it a ‘segregated school’ may not warrant that legal characterization. Unquestionably in many situations the determination of whether a given school is ‘segregated’ or not, under the above guidelines, will be a difficult decision, but we believe the variety of factual settings existing throughout our state foreclose a more rigid or concrete definition. . . .” (Id., fn. 16.)

Jackson v. Pasadena City School Dist., supra, 59 Cal.2d 876, mandates that the averments with respect to racial segregation should be treated on general demurrer as allegations of ultimate facts and not mere conclusions of law. (59 Cal.2d at p. 879.) We conclude that in the light of the later decision we should find the meaning of “segregated schools” as used in this complaint in the light of the whole record. It then appears from the other allegations of the complaint, from the relief sought, and from the arguments advanced by appellants below and in this court, that the students in Ravenswood are isolated from majority students in other districts, and the students in other districts are isolated from minority students because of the respective racial composition of the school population of each of the districts. Interdistrict relief is sought from this imbalance. There is no contention that any of the respondent districts has an invalid imbalance among its own schools which can be alleviated by intradistrict action.

It is further alleged that the racial composition of faculty and staff of the Ravenswood district schools is disproportionately minority when compared with that of the schools in the surrounding districts. Attached statistics indicate that 47 percent of the certified staff is of minority ethnic origin in Ravenswood, as distinguished from a range of 3 percent to 10 percent in the other elementary districts.

The petitioners focus on the mid-Peninsula community, that is, the community residing within the boundaries of the Palo Alto Unified School District and the Sequoia Union High School District. They allege that this community and the school administrators and teachers of the encompassed school districts regard the Ravenswood schools as black schools, and as inferior schools. Test scores for the school years 1974-1975 and 1975-1976, attached to the complaint allegedly demonstrate the inferior performance of Ravenswood pupils as compared with the pupils in respondent districts.

Petitioners aver that because of the great preponderance of minority students within the boundaries of the Ravenswood City School District, and the preponderance of nonminority students in the other schools, that the only reasonable feasible steps available to eliminate or to alleviate racially segregated schools involve both the school districts surrounding Ravenswood and the Ravenswood district itself, and that therefore an interdistrict remedy arrived at in concert provides the only reasonably feasible solution.

They allege that since at least 1971 each respondent has had actual knowledge of the existence of the aforementioned “racially segregated schools”; that as agents of the State of California respondents have the constitutional duty, and acting jointly and in cooperation with one another, the power to eliminate “racially segregated schools” in the respondent school districts; that they have failed to take available reasonably feasible steps to eliminate or to alleviate “the segregated schools” although at all times relevant they have been able to do so; and that by reason of that failure the petitioners’ minority and nonminority children are being deprived of equal opportunities for education and are being denied equal protection and due process of law.

The allegations of a further controversial paragraph are reviewed below.

Both sides agree that the complaint frames the issue, left unresolved in Crawford (17 Cal.3d at p. 303, fn. 14), as to the extent and manner a court may intervene to order the correction of racial imbalance in public schools which is manifest in a geographical area embracing two or more independent school districts.

IV

As we have set forth, petitioners rely on their children’s rights under the Constitution of the State of California. The California decisions “authoritatively establish that in this state school boards do bear a constitutional obligation to take reasonable steps to alleviate segregation in the public schools, whether the segregation be de facto or de jure in origin.” (Crawford v. Board of Education, supra, 17 Cal.3d 280, 290; see pp. 290-302. See also National Assn, for Advancement of Colored People v. San Bernardino City Unified Sch. Dist. (1976) 17 Cal.3d 311, 325 [130 Cal.Rptr. 744, 551 P.2d 48]; Santa Barbara Sch. Dist. v. Superior Court (1975) 13 Cal.3d 315, 325-328 [118 Cal.Rptr. 637, 530 P.2d 605]; Serrano v. Priest, supra, 5 Cal.3d 584, 603-604; San Francisco Unified School Dist. v. Johnson (1971) 3 Cal.3d 937, 957-958 [92 Cal.Rptr. 309, 479 P.2d 669] [cert. den., 401 U.S. 1012 (28 L.Ed.2d 549, 91 S.Ct. 1266)]; Jackson v. Pasadena City School Dist., supra, 59 Cal.2d 876, 881; and People ex rel. Lynch v. San Diego Unified School Dist., supra, 19 Cal.App.3d 252, 264-265.) In San Francisco Unified School Dist. v. Johnson, supra, the court observed: “[I]t is the presence of racial isolation, not its legal underpinnings, that creates unequal education. [Citation.]” (3 Cal.3d at p. 949.)

It isxlear that this state, regardless of the interpretations given to equal protection under the Fourteenth Amendment by the highest court of the nation, may determine its own standards for evaluating equal protection under the California Constitution. (Serrano v. Priest, supra, 18 Cal.3d 728, 762-768. Cf. Serrano v. Priest, supra, 5 Cal.3d 584, 596, fn. 11 & pp. 617-618, with San Antonio School District v. Rodriguez (1973) 411 U.S. 1, 54-55 [36 L.Ed.2d 16, 55, 93 S.Ct. 1278].) Nevertheless there are several factors that impel us to examine the decision on interdistrict segregation in Milliken v. Bradley, supra, 418 U.S. 717. In the first place the decisions referred to above all deal with instances of alleged intradistrict segregation, as was treated in Crawford and has been reviewed above (part III). Secondly, some of the respondents rely upon the principles enunciated in Milliken in support of the lower court’s decision. Finally, we feel that the facts in this case should be weighed against certain factors which the Supreme Court recognized as possible grounds for relief, despite denial of relief under the facts presented.

A

In Milliken a majority of the court reversed a circuit court decision which had approved an order of the district court establishing a desegregation area, consisting of the City of Detroit with 276,000 students and 53 adjacent school districts with 503,000 students, after finding that it was otherwise impossible to accomplish desegregation in the city. The Supreme Court determined that a federal court may not impose a multi-district, areawide remedy to a single district de jure segregation problem absent any finding [1] that the other included school districts had failed to operate a unitary school system within their districts; [2] absent any claim or finding that the boundary lines of any affected school district were established with the purpose of fostering racial segregation in public schools; [3] absent any finding that the included districts committed acts which effected segregation within the other districts; and [4] absent a meaningful opportunity for the included neighboring school districts to present evidence or be heard on the propriety of a multi-district remedy or on the question of constitutional violation by those neighboring districts. (418 U.S. at pp. 721-722 [41 L.Ed.2d at p. 1078].)

A search for factors which may implicate any of the respondent districts under the foregoing formula leads to paragraph X of the petition. There the petitioners allege: “Petitioners expressly do not allege any ‘de jure’, ‘de facto’ or any acts of any of the respondents which may have contributed, significantly or insignificantly, to the present situation of racially segregated schools in the respondent school districts. However, in support only of the allegation that at all relevant times the respondents had knowledge of segregated schools within each of the respondent school districts, petitioners attach hereto and incorporate herein Exhibit E.”

Reference to exhibit E reflects that it alleges that in 1974 and 1976 there were realignments of school district boundaries between Ravens-wood and Menlo Park districts which increased racial imbalance; that a pending reorganization involving Belmont Elementary District and Sequoia Union High School will have a similar effect; that the San Mateo County Committee on School District Organization has approved all of the foregoing; that in 1966 (see San Carlos Sch. Dist. v. State Bd. of Education (1968) 258 Cal.App.2d 317 [65 Cal.Rptr. 711]) and 1972 proposals for unification of respondent elementary districts (exclusive of the Palo Alto Unified School District), were defeated by the voters; that after a history of opposition by some of respondent school districts, the two respondent county committees on school district organization undertook a study of several different plans for the merger of Ravenswood, Las Lomitas, Menlo Park and Portola Valley elementary districts and a portion of Sequoia Union High School District with the Palo Alto Unified School District; and in 1976 the joint committees formally voted against such merger; that an integrated center school for pupils of Ravenswood and three other elementary districts which existed from 1973 to 1975 was closed by inaction of the districts; that the State Board of Education has failed to adopt regulations requiring local districts to act to eliminate “segregated schools”; that Ravenswood district has refused application for interdistrict transfer and adopted a policy against interdistrict transfer; that Menlo Park and Palo Alto districts have restricted interdistrict attendance by restrictive residency requirements. It is alleged that all of these acts and omissions occurred with knowledge that they would substantially increase “segregated schools” in the respective districts.

The San Mateo respondents demurred on the ground, among others, that the allegations of the petition, as amended by the third amendment, which included the language in paragraph X quoted above, are vague and contain conclusions of law rather than ultimate facts. A separate demurrer interposed by the Ravenswood district raised the same point. In its order sustaining and overruling demurrers without leave to amend the court listed, among other grounds: “The allegations of the Third Amended Petition, specifically paragraph X and Exhibit E, are vague and contain conclusions of law rather than ultimate facts.”

On appeal petitioners contend that the trial court erred because “vagueness” is not a proper ground for demurrer, and because exhibit E only contains allegations of fact showing factual events evidencing respondents’ knowledge of segregated schools. The San Mateo respondents insist that paragraph X and the incorporated exhibit contain vague and conclusionary allegations rather than ultimate facts. They contend that petitioners have failed to allege a causal connection between the acts or omissions set forth in the exhibit, and the segregation that they seek to have eliminated or alleviated. We do not reach these issues. We accept at face value the statements in the body of paragraph X that the matter in exhibit E is not to be considered to establish “any acts of any of the respondents,' which may have contributed, significantly or insignificantly to the present situation of racially segregated schools in the respondent school districts,” but “in support only of the allegation that at all relevant times the respondents had knowledge of segregated schools within each of the respondent school districts.” As such the allegation in exhibit E cannot render the express allegations of paragraph X uncertain, ambiguous or unitelligible (Code Civ. Proc., § 430.10, subd. (f)); nor is the combined effect such as to reduce the disclaimer of any “de jure” or “de facto” segregation to a mere conclusion of law. As mere evidential matter, the exhibit was probably subject to motion to strike and we disregard it, except as it may throw light on the history of the controversy giving rise to this action.

We do so because it is evident that petitioners have elected to frame their case on a theory of liability without fault. In their second amended complaint the facts alleged in exhibit E were referred to in support of several allegations including the allegation “that respondents have failed and refused to adopt any plan or plans to eliminate segregation . . . .” That allegation was expressly deleted in the third amendment. At the hearing on the demurrer to the third amended complaint counsel explained that the amendment was framed as it was to preclude any inference that petitioners were alleging an intentional or unintentional act causing segregation on the part of any respondent. Again, in their closing brief appellant-petitioners assert “Respondents’ argument assumes that to state a cause of action, the petition must allege acts by one district having a segregative effect in another district. It is appellants’ position that a cause of action based on a violation of the California Constitution is stated without such an allegation.” We conclude that in their zeal to establish the latter position, petitioners have expressly elected to refrain from pleading or seeking relief on any of the exceptions noted in Milliken. The trial court erred in sustaining the special demurrer after petitioners made that election, but it also erred in not striking exhibit E when that course was suggested by the San Mateo respondents.

B

Each side suggests that an uncritical adherence to existing precedent furnishes grounds for its position. Appellants, in reliance upon the California mandate to eliminate or alleviate segregation whenever it occurs within a district, insist that the same principle must be applied between districts without reference to whether a district by act or omission caused or contributed to the imbalance within each district. Respondents, despite the disparity between California and federal constitutional law, insist that principles enunciated in Milliken should control.

In this state the Supreme Court has consistently recognized that racial imbalance in education is itself a violation of the state Constitution regardless of cause. The evil to be corrected was phrased as follows in San Francisco Unified School Dist. v. Johnson, supra: “Our analysis begins with the classic ruling in Brown v. Board of Education (1954) 347 U.S. 483, 495 [98 L.Ed. 873, 881, 74 S.Ct. 686, 38 A.L.R.2d 1180], that ‘separate educational facilities are inherently unequal.’ Evidence accumulated since 1954 has amply confirmed former Chief Justice Warren’s declaration. The 1967 report of the United States Commission on Civil Rights, ‘Racial Isolation, in the Public Schools,’ found that, all other factors being equalized, Negroes in segregated schools have lower educational achievement than Negroes in integrated schools. (Finding 8, p. 204.) The transfer of Negroes to integrated institutions, the commission noted, substantially betters their educational performance without harming the performance of white students. (See pp. 100-109.) [¶] The commission offered the following explanation: ‘The environment of schools with a substantial majority of Negro students . . . offers serious obstacles to learning. The schools are stigmatized as inferior in the community. The students often doubt their own worth, and their teachers frequently corroborate these doubts. The academic performance of their classmates is usually characterized by continuing difficulty. The children often have doubts about their chances of succeeding in a predominately white society and they typically are in school with other students who have similar doubts. They are in schools which, by virtue of both their racial and social class composition, are isolated from models of success in school.’ (P. 106.) [¶] The commission went on to note that ‘racial isolation in the schools . . . fosters attitudes and behavior that perpetuate isolation in other important áreas of American life. Negro adults who attend racially isolated schools are more likely to have developed attitudes that alienate them from whites. White adults with similarly isolated backgrounds tend to resist desegregation in many areas — housing, jobs, and schools.’ (P. 110.)” (3 Cal.3d at p. 949. See also Crawford v. Board of Education, supra, 17 Cal.3d 280, 295-296; Serrano v. Priest, supra, 5 Cal.3d 584, 605-610; Manjares v. Newton (1966) 64 Cal.2d 365, 375-376 [49 Cal.Rptr. 805, 411 P.2d 901]; and People ex rel. Lynch v. San Diego Unified School Dist., supra, 19 Cal.App.3d 252, 263-266.)

The language used to justify intradistrict relief from such imbalance appears broad enough to transcend district lines. In Jackson, the court stated: “The harmful influence on the children will be reflected and intensified in the classroom if school attendance is determined on a geographic basis without corrective measures. The right to an equal opportunity for education and the harmful consequences of segregation require that school boards take steps, insofar as reasonably feasible, to alleviate racial imbalance in schools regardless of its cause.” (59 Cal.2d at p. 881. See also Crawford v. Board of Education, supra, 17 Cal.3d at pp. 301-302; Mulkey v. Reitman (1966) 64 Cal.2d 529,537 [50 Cal.Rptr. 881, 413 P.2d 825]; and San Francisco Unified School Dist. v. Johnson, supra, 3 Cal.3d at p. 949.) Unless there are supervening factors impelling a contrary conclusion, we are led to conclude, as urged by petitioners, that the California Constitution, as interpreted by our Supreme Court, mandates the correction of racial imbalance between districts where feasible.

Turning to Milliken, we find that the majority rest their decision, like a tripod, on three legs. The principal precept was lifted from Swann v. Charlotte-Mecklenburg Bd. of Ed. (1971) 402 U.S. 1 [28 L.Ed.2d 554, 91 S.Ct. 1267], where it had been used to approve the trial court’s prodding of a recalcitrant and defaulting school board. There a unanimous court had stated: “As with any equity case, the nature of the violation determines the scope of the remedy.” (402 U.S. at p. 16 [28 L.Ed.2d at p. 567].) In Milliken, the majority considered themselves bound by the rule that only de jure segregation could give rise to a constitutional violation; and they found that such a violation only existed within the city district itself. (See 418 U.S. at pp. 738, 745 & 754 [41 L.Ed.2d at pp. 1087, 1091 & 1096].) From the foregoing premise it was logical to conclude that the rule from Swann precluded involvement in the remedy of another district in which no constitutional violation had occurred. (Id., pp. 738, 744, 746, 754-757 [41 L.Ed.2d, pp. 1087, 1090, 1092, 1096-1098].)

It was acknowledged that any Detroit only segregation plan would lead directly to a single segregated Detroit school district overwhelmingly black in all of its schools, surrounded by a ring of suburbs and suburban school districts overwhelmingly white in composition in a state in which the racial composition was 87 percent white and 13 percent black. (418 U.S. at p. 739 [41 L.Ed.2d at p. 1088].) In an attempt to evade the effect of this factor, the majority again resorted to Swann. (See 402 U.S. at pp. 22-26 [28 L.Ed.2d at pp. 570-572].) There the court stated: “The constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole.” (402 U.S. at p. 24 [28 L.Ed.2d at p. 571]. See also Crawford v. Board of Education, supra, 17 Cal.3d 280, 303-304; and Santa Barbara Sch. Dist. v. Superior Court, supra, 13 Cal.3d 315, 330.) So, here, the majority sought to apply that rule to destroy the concept that racial imbalance itself was an evil. (418 U.S. at pp. 740-741 [41 L.Ed.2d at pp. 1088-1089].) The opinion of Marshall, J. points out, however, that the attempt to include the surrounding districts in the desegregation was not an attempt to disregard the caveat of Swann concerning quotas throughout all the schools. (See 418 U.S. at p. 788, fn. 1 & p. 803 [41 L.Ed.2d at pp. 1115-1116, 1124].)

The third prop of the court’s opinion is its conclusion that although there may have been some state action in creating the school districts, it could not furnish the basis for interdistrict relief, unless at the time of the establishment of the districts there was an intent or purpose to create, maintain or perpetuate segregation of races. (418 U.S. at pp. 748-752 [41 L.Ed.2d at pp. 1093-1095].) The opinion emphasizes local control of the schools. It states; “The Michigan educational structure involved in this case, in common with most States, provides for a large measure of local control, and a review of the scope and character of these local powers indicates the extent to which the interdistrict remedy approved by the two courts could disrupt and alter the structure of public education in Michigan. The metropolitan remedy would require, in effect, consolidation of 54 independent school districts historically administered as separate units into a vast new super school district.” (418 U.S. at pp. 742-743, fn. omitted [41 L.Ed.2d at pp. 1089-1090].) A series of rhetorical questions poses the administrative details involved.

The four dissenting justices in three opinions reject the parochial approach of the majority and point out that the culprit in the case was the State of Michigan itself, and that there is nothing untoward in requiring the school districts, as creatures of the state, to eliminate or alleviate the segregation existing in one general metropolitan area. (418 U.S. at pp. 757-762 [41 L.Ed.2d at pp. 1098-1101], Douglas, J.; id., pp. 762-780 [41 L.Ed.2d, pp. 1101-1111], White, J. with Douglas, Brennan & Marshall; id., pp. 781-815 [41 L.Ed.2d, pp. 1112-1131], Marshall, J., with Douglas, Brennan & White.) The Michigan educational system is unitary, maintained and supported by the Legislature, and under the general supervision of the State Board of Education. (See 418 U.S. at pp. 758, 768-772 and 785-786 & 790-797 [41 L.Ed.2d at pp. 1099, 1104-1107 and 1114-1115 & 1117-1121].) Both Justices White and Marshall urge that the administrative difficulties can be met at the local scene by state action and are not insuperable as suggested by the majority. (418 U.S. at pp. 767-770 and 808-812 [41 L.Ed.2d at pp. 1103-1105 and 1127-1129].) As Justice White points out, parental and local concerns, when not in conflict with the Constitution, can be considered in any plan. (418 U.S. at pp. 778-779 [41 L.Ed.2d at pp. 1110-1111].) Both opinions stress that the state’s control over school district boundaries and any local establishment of such boundaries is subject to alteration to redress constitutional boundaries in the same manner as voting districts were ordered revised in the reapportionment cases. (418 U.S. at pp. 777-778 and 807-808 [41 L.Ed.2d at pp. 1109-1110 and 1126-1127], adverting to Reynolds v. Sims (1964) 377 U.S. 533, 575 [12 L.Ed.2d 506, 535, 84 S.Ct. 1362]. See also Silver v. Brown (1965) 63 Cal.2d 270 [46 Cal.Rptr. 308, 405 P.2d 132].)

When these opinions are juxtaposed and compared with existing California constitutional law, we must reject respondents’ contention that the majority opinion in Milliken should furnish a guideline and precedent for the educational rights conferred on pupils of a minority race by the California Constitution. In the first place, in this state there is a constitutional right of minority students to be free from the isolating and debilitating effects of segregation regardless of its source. (See Crawford v. Board of Education, supra, 17 Cal.3d at p. 301.) We therefore bypass Chief Justice Burger’s search for and emphasis upon a single entity responsible for some de jure segregation. Furthermore it is clear that in California, as in Michigan, the responsibility for furnishing constitutionally equal educational opportunities to the youth of the state is with the state, not solely in the local entities it has created.

In Mulkey v. Reitman, supra, 64 Cal.2d 529, the court struck down, as offensive to the Fourteenth Amendment, a state constitutional amendment which purported to confer absolute discretion in the sale, leasing or renting of real property. In considering the question of state action the court, citing Jackson v. Pasadena City School Dist., supra, 59 Cal.2d 876, observed that “the state, because it had undertaken through school districts to provide educational facilities to the youth of the state, was required to do so in a manner which avoided segregation and unreasonable racial imbalance in its schools.” (64 Cal.2d at p. 537. See also Crawford v. Board of Education, supra, 17 Cal.3d 280, 291; Santa Barbara Sch. Dist. v. Superior Court, supra, 13 Cal.3d 315, 328-329; and San Francisco Unified School Dist. v. Johnson, supra, 3 Cal.3d 937, 951.) In Hall v. City of Taft (1956) 47 Cal.2d 177 [302 P.2d 574], the court reviewed state constitutional provisions similar to those now extant, and concluded: “In harmony with those provisions it has been held that the power of the state Legislature over the public schools is plenary, subject only to any constitutional restrictions.” (47 Cal.2d at pp. 180-181. See also Serrano v. Priest, supra, 18 Cal.3d 728, 772; Santa Barbara Sch. Dist. v. Superior Court, supra, 13 Cal.3d 315, 339-347; Worthington S. Dist. v. Eureka S. Dist. (1916) 173 Cal. 154, 156 [159 P. 437]; Pass School Dist. v. Hollywood Dist. (1909) 156 Cal. 416, 418 [105 P. 122]; Bay View School Dist. v. Linscott (1893) 99 Cal. 25, 27 [33 P. 781]; Hughes v. Ewing (1892) 93 Cal. 414, 417 [28 P. 1067]; Chico Unified Sch. Dist. v. Board of Supervisors (1970) 3 Cal.App.3d 852, 855 [84 Cal.Rptr. 198]; San Carlos Sch. Dist. v. State Bd. of Education, supra, 258 Cal.App.2d 317, 324; Mountain View Sch. Dist. v. City Council (1959) 168 Cal.App.2d 89, 97 [335 P.2d 957]; and 29 Ops.Cal.Atty.Gen. 82, 83-84 (1957).)

The authorities last cited demonstrate that the state has the power, although it may delegate it locally, to form, dissolve, and transfer territory among school districts without the necessity of local elections. That the state has a duty to intervene to prevent unconstitutional discrimination is established by the Serrano cases. In S