Neighborhood Schools For Our Kids v. Capistrano Unified School District, No. 05-07288 (Cal. Super. Ct. Aug. 25, 2006)

A California state court has denied both sides’ motions for summary judgment in a challenge to a school board’s attempts to maintain racial and ethnic balance in its schools. A policy of Capistrano Unified School District (CUSD) requires its school board to take race and ethnicity into account when regularly reviewing school attendance boundaries, and its school attendance boundaries plan contains the "guiding principle" that the minority student population at any school should not exceed 35%. The suit, filed by the Pacific Legal Foundation (PLF) on behalf of the parent group Neighborhood Schools for Our Kids, alleges that the policy and the plan both violate a California constitutional amendment, known as Proposition 209, that bans discrimination or preferential treatment on "the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting."

Addressing the policy first, the court concluded that although it is "clearly race conscious," it does not necessarily violate Proposition 209 in all circumstances, which must be shown for a facial challenge to succeed. Unlike the Huntington Beach school system’s policy that a California appellate court found violated Proposition 209, CUSD’s policy does not give the school board "discretion to discriminate against students based solely on race." It does not, on its face, "require [the board] to make decisions about what school any particular child or even neighborhood group of children will attend based solely on race," but merely instructs the board to consider the racial and ethnic balance when drawing school attendance boundaries. As a result, the court found that CUSD’s policy lacks the racial/ethnic balancing component that the appellate court found objectionable in the Huntington Beach case. The attendance boundary plan, on the other hand, is constitutionally flawed on its face because its "general guiding principle" that no school have a minority population in excess of 35% limits the number of positions available at each high school for members of different racial or ethnic groups. This amounts to discrimination on the basis of race, the court determined.

New York Times
By Staff
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