Ho ex rel. Ho v. San Francisco Unified School District

By their parents and next friends, Brian Ho, aged 5, Patrick Wong, aged 14, and Hilary Chen, aged 8 (collectively Ho), brought this action in 1994 against the San Francisco Unified School District (the School District) and the other local and state defendants. The suit sought declaratory relief and an injunction forbidding the defendants from operating the public schools of San Francisco under a system of racial classification and quotas. Ho alleged that the defendants were violating the Fourteenth Amendment by adhering to paragraph 13 of a consent decree of fifty-five paragraphs approved by the district court in May 1983.

Paragraph 13, as modified by the court, reads in relevant part as follows:

The defendants moved to dismiss on the grounds of res judicata and collateral estop-pel: all the issues, they maintained, had been decided in 1983. Observing that the suit relied on events that had occurred after 1983, the district court denied this motion.

On January 19, 1995, the court added as a defendant the San Francisco National Association for the Advancement of Colored People (SFNAACP), which had brought the suit that had led to the consent decree.

On March 8, 1996 the court…

dissenting:

While I concur in most of this excellently reasoned opinion, I must, respectfully, dissent regarding the majority’s finding that we lack jurisdiction to hear an appeal from denial of a Fed.R.Civ.P. 56 motion for summary judgment because of the fact intensive nature of desegregation cases. The majority states:

Rule 56(c), however, entitles a moving party to a summary judgment, whenever “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

Rule 56(e) requires that an affidavit opposing a motion for summary judgment “... shall set forth such facts as would be admissible in evidence.” Those facts must be admissible under the rules governing admission of evidence. Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir.1989).

To survive summary judgment, the non-moving party must produce evidence of sufficient caliber or quantity to allow a rational trier of fact to produce a verdict in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 ,…