Bob Egelko, San Francisco Chronicle, June 11, 2009
In a victory for advocates of school integration, the state Supreme Court rejected a challenge Wednesday to Berkeley’s policy of considering the racial composition of students’ neighborhoods in deciding where they will enroll.
Without a dissenting vote, the court denied review of an appeal by backers of Proposition 209, the 1996 initiative that outlawed racial preferences in public education, employment and contracting. An appellate ruling upholding the Berkeley system is now binding on courts statewide and allows any district to adopt a similar plan.
In the March 17 ruling, the First District Court of Appeal in San Francisco said the Berkeley Unified School District was not violating Prop. 209 because it based enrollment decisions on the diversity of a student’s neighborhood, not the individual student’s race. It was the first ruling by a California appeals court on a district’s voluntary integration program since voters approved the constitutional amendment.
“I think Berkeley has found the right approach to complying with both its obligations and its desire to have an integrated school system, and its obligations under Prop. 209,” said Jon Streeter, lawyer for the 9,000-student district, on Wednesday. “Up to now, many people had thought that doing both is not possible.”
Sharon Browne, a Pacific Legal Foundation attorney representing a nonprofit organization that sued the Berkeley schools, said the court’s action was disappointing but wasn’t necessarily the last word. Under California legal rules, she noted, a different appeals court could still rule that a Berkeley-style plan in another district violated Prop. 209, creating a conflict that the state’s high court would have to resolve.
“Another lawsuit can be brought and should be, to make sure students are treated as individuals and not as part of a racial group,” Browne said. She said districts should be cautious in following the Berkeley model because “it will invite more litigation, and litigation is very expensive.”
Prop. 209 is stricter than the federal standard and forbids any differential treatment based on race.
The Berkeley district has taken measures since 1968 to promote racial balance between schools in the largely minority flatlands and the mostly white hillside and UC Berkeley neighborhoods.
Under the plan the district adopted in 2004, each area of four to eight square blocks is given a diversity rating based on racial composition and parents’ income and education levels. The district uses that rating in enrollment decisions at the city’s 11 elementary schools and in special academic programs at Berkeley High School.
“Using neighborhood demographics when assigning students is not discriminatory,” the appeals court said in its March ruling. “All students in a given residential area are treated equally.”
The case is American Civil Rights Foundation vs. Berkeley Unified School District, S172258.