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Despite possible legal challenges, the Berkeley Unified School District Board of Directors voted Wednesday to continue using the school’s current desegregation system — which assigns students to schools based upon a combined choice and lottery system. 

The board assigns students to schools to maintain the racial distribution in each school so that it’s within five percent of the racial makeup for the entire Berkeley school system. 

While the assignment method has generally met with support from the community, the district’s legal counsel – Celai Ruiz of Ruiz & Sparrow – have cautioned the board that it could be vulnerable to legal challenge because it uses race as a deciding factor in determining which school a student will attend. 

Berkeley, which initiated its school diversity program in 1968, was the first district of its size in the country to voluntarily use school busing for desegregation. The current desegregation method, called “Zoned Choice,” allows students to list their first, second and third choice schools and then assigns them by lottery, distributing them along ethnic lines. Preference is given to students who have siblings at the schools or live in close proximity. The goal of the program, according to the Student Assignment Advisory Committee charged with reviewing it, is to ensure equal access to educational resources by placing all students in an integrated environment. 

But the school district has become concerned that Proposition 209 and other recent legal challenges to race-based student assignment programs may pose questions of the system’s legality.  

Those questions prompted the school district to ask for the committee’s investigation and recommendation. 

At Wednesday’s board meeting, the committee reported that — after careful review — it had voted not to recommend an alternative assignment plan.  

“We concluded that our assignment plan is currently the most effective way to ensure equal access to a strong core curriculum, enriched learning experiences and individual, community, social and educational resources,” reported committee chair Ferdinand Martinez. 

Most teachers and boardmembers present enthusiastically endorsed the system.  

“I heartily encourage the board to keep using race as a major criteria in assigning students to schools,” said Judy Ann Alberti, of the Berkeley Citizens Action Steering Committee and newly elected Rent Stabilization Board member.  

“Berkeley continues to lead the nation in the push toward a society where we can all live in equality and diversity, and this program shows our leadership.”  

“Our system is still legal and until I’m told by a higher authority not to, I’m going to continue to use race as a criteria,” asserted boardmember Joaquin Rivera. 

Boardmember Shirley Issel cast the lone dissenting vote, saying she was concerned that the program could cost the district significant funds if challenged in court.  

“I’m committed to conserving the educational resources of this district, and poor policy could result in expensive litigation that will deprive us of those resources,” she said.  

Concerns were also raised over a few schools that had below-target racial distribution, particularly magnet schools which are not part of the Zoned Choice program.  

One of those schools is Franklin Elementary, with a student body that is 75 percent African-American, four percent Caucasian and 21 percent other ethnicities. According to district spokesperson Karen Sarlo, that disparity is caused by the school’s age — it is only two years old and has not yet had time to recruit a diverse student body. Many of the students have come to the school because they live nearby or because they followed Principal Barbara Penny James from LeConte, where she was a longtime principal. 

Advisory committee chair Martinez suggested that Franklin consider adding dual-immersion classes, which have drawn large numbers of applicants. The classes, which are made up of an equal amount of native Spanish speakers non-Spanish speakers, feature instruction in both languages.  

School boardmembers also asked the advisory committee to investigate ways to add other factors influencing diversity — such as socioeconomic status and native language — as factors in assignment.