Metropolitan News-Enterprise


Wednesday, March 18, 2009


Page 1


Court of Appeal Upholds Berkeley Public School Assignment Plan

Panel Says Use of Neighborhood Demographics Does Not Violate Proposition 209




A public school assignment plan designed to ensure that students within a given school come from geographic areas with diverse socio-economic characteristics does not violate Proposition 209’s ban on assigning students by race, the First District Court of Appeal ruled yesterday.

Div. Four, affirming Alameda Superior Court Judge Cecilia Castellanos’ ruling in favor of the Berkeley Unified School District, ruled that “educators who include a general recognition of the demographics of neighborhoods in student assignments, without classifying a student by his or her race, do not” violate the 1996 initiative.

Proposition 209 says the government shall not “discriminate against, nor grant preferential treatment to, any individual or group on the basis of race.” 

Discrimination Claimed

The American Civil Rights Foundation, led by Proposition 209 author and former UC Regent Ward Connerly, sued the district in October 2006. The claimed that the plans used since 2004 to assign students to the district’s 11 elementary schools, and to allocate places in certain programs at Berkeley High School, discriminated on the basis of race.

ACRF was represented in the case by the Pacific Legal Foundation, the district by the San Francisco firm of Keker & Van Nest, and a group of parents who intervened in support of the plan by the ACLU and the Lawyers’ Committee for Civil Rights.

Under the elementary school plan, parents complete a form in which they list three schools, in ranked order, that they would prefer their children attend. Where a school cannot accommodate all whose parents wish to send them there, students are assigned to one of six priority categories—students who currently attend the particular school and live in its attendance area, current students who live outside the area, siblings of current students, other district residents who live in the area, other district residents living outside the area, and students whose parents are seeking transfers from other districts.

‘Diversity Score’

Under the feature of the plan attacked by the ACRF, however, students within a priority category are assigned a “diversity score,” depending on which of the city’s 445 planning areas—a planning area usually consists of four to eight city blocks—the family lives in.

The effect of this feature is that—depending on the school’s existing demographics—a student may have a greater chance of being assigned to the school that his or her parents prefer if the planning area in which the student lives has lower average household income, lower average educational level, and/or a higher percentage of racial minorities than the planning areas in which other students in the same priority category live.

Berkeley High School, the only high school in the district, offers six different academic programs with differing curricula. Like the elementary school plan, the plan for assigning students to these programs gives priority to students from areas with low average incomes, low average levels of education, and high concentrations of minorities, without regard to an individual student’s characteristics.

Judicial Restraint

Justice Patricia Sepulveda, writing for the Court of Appeal, said the case was governed by three principles of judicial restraint—that the authority of school boards to adopt policies that fit their communities is broad, that a plaintiff challenging a policy on its face has a heavy burden of proof, and that an initiative must be interpreted in such a way as to effectuate the voters’ intent.

The plain meaning of Proposition 209, the justice said, is that school districts may consider neighborhood demographics, as opposed to an individual student’s race, in assigning students to schools or programs.

ACRF’s contention that the initiative prohibits the district from “using race” in any fashion, and thus from considering race in categorizing a neighborhood, is inconsistent with Proposition 209’s language, Sepulveda said. “The constitutional provision prohibits unequal treatment of particular persons and groups of persons; it does not prohibit the collection and consideration of community-wide demographic factors,” the jurist wrote.

The justice also rejected the argument that neighborhood diversity scores were being used as a proxy for race.

“The claim is unsupported by the record on appeal,” Sepulveda wrote. ACRF, she said, did not show that white students necessarily came from upper-income areas with few minorities or that blacks lived exclusively in overwhelmingly black, low-income, undereducated neighborhoods.

She also cited the ballot argument in favor of Proposition 209, which argued: “Proposition 209 bans discrimination and preferential treatment—period.  Affirmative action programs that don’t discriminate or grant preferential treatment will be UNCHANGED.”

That language, and previous cases interpreting the provision, reinforces the conclusion that the district’s assignment plans are not prohibited, Sepulveda wrote. 

“The cases have interpreted [Proposition 209] to preclude the state and its subdivisions from classifying individuals by race and distributing benefits or burdens based on those racial classifications,” she wrote. “The policy challenged here does not consider an individual student’s race when assigning the student to a school, and thus presents a far different situation from those found unlawful”

The opinion was joined by Presiding Justice Ignacio Ruvolo and Justice Timothy Reardon.

The case is American Civil Rights Foundation v. Berkeley Unified School District, 09 S.O.S. 1626.


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