American Civil Rights Found. v. Berkeley Unified Sch. Dist., No. 06292139 (Cal. Super. Ct. Apr. 6, 2007)
A California state court has ruled that two out of three programs in Berkeley Unified School District (BUSD) that take student race into account do not violate California’s Proposition 209 prohibition “on discrimination or preference on account of race.” The plaintiffs in the case alleged that three BUSD programs violate Prop 209: (1) the elementary student assignment plan; (2) the admissions policy for BHS’s small schools and academic programs; and (3) the admissions policy for the Academic Pathways Project.
The elementary student assignment plan attempts to make the student body at each elementary school reflect the racial and socioeconomic diversity of the total elementary school population, by assigning a “diversity category” to geographic “planning areas” of about 4-8 city blocks, based on the percentage of students of color, the level of parent income, and the level of parent education. The diversity category of the planning area in which the child resides is among the factors considered when parents submit their preferences for the child’s elementary school. The admissions policy for the small schools and academic programs considers the same diversity category numbers used in the elementary school assignments, as well as English-language learners and special education status. Each class in each of these programs must reflect the diversity of BHS, and students are selected randomly based on the proportion of openings for their diversity category in the student’s highest ranked program choice. The Academic Pathways Project allegedly is limited to African-American, Latino, and low-income household students.
The court held that the elementary student assignment plan did not violate Prop 209 because the “assignment criteria take into account multiple factors related to the geographic area in which a student lives, only one of which is race-conscious” and “[t]he racial makeup of the entire student population in a given planning area is a factor in assignment decisions, not an individual’s race.” Moreover, race is just one of three equally weighted factors used to determine a diversity score and is never allowed to be a determinative factor. The small school assignment plan relies on this same multi-factor diversity score system, the court found, and thus also complies with Prop 209. However, because the plaintiffs alleged that admission to the Academic Pathways Project is restricted based on race, the court allowed that claim to go forward.
American Civil Rights Found. v. Berkeley Unified Sch. Dist., No. 06292139 (Cal. Super. Ct. Apr. 6, 2007
[Full opinion]
[Editor’s Note: A more detailed summary of the decision is posted at the first link below. For background on this suit, which is the second to challenge BUSD’s student assignment practices, see the second link. Reactions to the decision are reported by the Berkeley Daily Planet, excerpted at the third link.
During oral arguments before the U.S. Supreme Court in the challenges to Seattle’s and Louisville’s student assignment plans, Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education, Justice Anthony Kennedy, widely seen as the swing vote in the cases, repeatedly distinguished between assignment decisions based on an individual student’s race and broader measures to take race and diversity into account, such as “school siting” decisions. Background on those cases, including transcripts and recordings of the arguments, is available at the fourth link. For more speculation about the Berkeley approach and the Supreme Court, see the analysis at the last link by Vikram David Amar, a professor at the University of California, Hastings College of Law.]
[NSBA detailed summary of decision]
[NSBA School Law pages on filing of lawsuit]
[NSBA School Law pages on Seattle and Louisville cases]
[NSBA summary of Berkeley Daily Planet coverage]
FindLaw
By Vikram David Amar
[Full story]