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An Alameda County Superior Court judge Tuesday dismissed a challenge filed by the conservative Pacific Legal Foundation that threatened to undo Berkeley’s plan for integrating its schools. 

Judge James Richman ruled that a Berkeley Unified School District policy that uses race as a factor for assigning children to elementary schools did not, on its face, violate Proposition 209. 

That measure, enacted by California voters in 1996, forbids racial preferences in public education, employment and contracting. 

John Findley, an attorney from the Pacific Legal Foundation (PLF), which filed the lawsuit on behalf of Berkeley resident Lorenzo Avila and his two school-age sons, said he plans to appeal the case. 

Judge Richman’s decision means that Berkeley Unified—which in 1968 became the first school district in the country to voluntarily desegregate—can, for the time being, continue to use race as a factor to produce diversity in schools. 

Although the ruling only holds for Berkeley, civil rights advocates hope that, if upheld in the court of appeals, the decision would halt what they see as the Pacific Legal Foundation’s campaign to overturn race-based desegregation plans throughout California. 

“This is a whole new ballgame. The tide is starting to turn in public education,” said Michael Harris, assistant director of the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area.  

At the same time Judge Richman ruled on the plan, the judge also granted the lawyer’s committee, the American Civil Liberties Union, the NAACP, the Coalition to Defend Affirmative Action By Any Means Necessary and more than 300 Berkeley residents legal standing to join the opposition to the lawsuit should the decision be appealed. 

The rush by civil rights proponents to defend Berkeley Unified underscored the importance of the case, Harris said. “This could set a new precedent for all school districts in the state.” He added that since the passage of Prop. 209, several districts had pulled back from using race in school assignments under threats of possible legal action from PLF. 

Berkeley School Board Director Terry Doran said the decision vindicated the district for “having the courage of their convictions to fight the case.” 

Though PLF won a similar case against a school district in Huntington Beach two years ago, the group had a tougher challenge against Berkeley Unified, said Goodwin Liu a Boalt Hall Professor with a specialty in education law and policy, because the Avila children never claimed to have suffered adversely from the district’s policy. 

Since the Berkeley plan considered several factors other than race, Judge Richman concluded the possibility existed that the plan could be implemented without ever taking race into account. “If the implementation of the plan might not result in a single pupil’s school assignment being changed based on the pupil’s race, the plan cannot be unconstitutional on its face,” he wrote.  

Richman also distinguished the Berkeley case from the ruling in Huntington Beach, which Findley argued that the judge was bound to follow. Richman wrote that the Huntington Beach transfer policy in question was a “one-for-one same race exchange policy” that essentially created a “non-white opening” and prevented white students from transferring from a minority white school unless another white student took his place. Since the Berkeley plan contained “no such differential criteria for school assignment,” it didn’t apply, Richman wrote. 

Liu said he believed Richman’s ruling was correct, but that if PLF returned with a plaintiff who could make a claim of being denied his first choice of schools based on race, “it might be a different story.” 

Other professors, however questioned the underpinnings of the decision. “The ruling doesn’t grapple with 209 very successfully,” said Vikram Amar, a UC Hastings law professor with a specialty in constitutional law and civil procedure. Amar said the Berkeley plan might be defensible on other grounds, but “just because race is used as one factor among many, doesn’t take it outside of 209.” UC affirmative action plans also took race into account among many factors, he said, and Prop. 209 “was clearly intended to overthrow that.” 

David Levine, another UC Hastings law professor, predicted the appeals court would overturn Richman’s ruling. Levine was one of the attorneys who represented a group of Chinese American students who, in 1999, won a federal court order ending race-based enrollment in San Francisco. 

“The judge has given PLF something easy to shoot at,” Levine said. “He strained to distinguish the Berkeley case so he didn’t have to follow precedent. I don’t think it’s very convincing.” 

The Berkeley school assignment plan in question requires the racial mix for each grade to fall within five percent of the district-wide tally. To achieve that goal, parents must fill out a form indicating their child’s race and list their top three choices of schools, with the district retaining ultimate control to produce a racial balance. 

Earlier this year, while it was preparing its defense against PLF, Berkeley amended its school assignment policy to alter how it accounted for ensuring racial diversity. Beginning this fall, instead of individually assigning a race to each student the new plan will assume a racial and socioeconomic profile for students based on the U.S. census data of the roughly four-block neighborhood in which each student lives.  

The school board approved the new plan after debating alternatives for four years, during which PLF repeatedly threatened litigation. One school assignment plan proposed by a community committee appointed by the superintendent would have done away with race as a factor altogether. Pacific Legal Foundation had said that would have staved off a lawsuit, but a majority of the school board refused to consider the proposal. 

Amar said the new plan would stand a much better shot at passing muster on appeal under Proposition 209. He questioned why PLF would bother to proceed against the old plan, especially considering they weren’t trying to reverse a school assignment for a student harmed under the previous rules.  

“This is not the way litigation works,” he said. “Just because [Pacific Legal Foundation] wants to send a message to other districts doesn’t mean there’s a case here.” 

By granting the district’s motion to demur, Judge Richman essentially threw out the case before it went to trial. Though such rulings are rare in most types of cases, Levine said they are fairly common when, as in the Berkeley case, the issue at hand is the purely legal question of whether or not Berkeley’s plan violates Proposition 209. 

PLF’s Findley—who voluntarily dismissed the Avila’s claim for damages after the judge’s ruling—said he never expected the case to go to trial even if Judge Richman had ruled otherwise, and that he was satisfied to expedite the case to the court of appeals. He added that PLF had no intention to seek a new plaintiff who might make a stronger claim against the district. Avila’s children attend magnet schools, which are not bound to the rules of the assignment plan.  

Although Findley said his client could renew his claim for damages if the appeals court ruled in his favor, Jon Streeter, the attorney representing Berkeley Unified School District free of charge, insisted the district faced no threat of a damage claim. “Those kids were not affected by the school assignment,” he said. “Anyone who argues that there is damage exposure in this case simply doesn’t understand what’s going on here.” 

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