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A conservative legal group has sued the Berkeley Unified School District, claiming that it has violated California’s ban on affirmative action by seeking racial balance in its elementary schools. 

The well-heeled Pacific Legal Foundation (PLF) filed suit in Alameda County Superior Court last week charging that the district’s student assignment policy—which requires each school’s racial mix to fall within five percent of the district-wide tally—violates Proposition 209. 

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

“Berkeley Unified’s policy is discriminatory at the very core,” said Cynthia Cook, an attorney with the Sacramento-based PLF. “Whether a child is able to enter an elementary school in Berkeley depends largely on the color of his skin. That is a flagrant violation of Proposition 209.” 

The suit, threatened for years, sparked an angry reaction from school officials, who are mired in a deep financial crisis. 

“These right-wing Nazis are finally after us,” said Board of Education President Joaquin Rivera. “I’m disappointed that they’re doing this at a time that we’re trying to deal with so many other things. . .The timing is very suspicious.” 

District officials said they haven’t had a chance to review the suit and have not decided whether to challenge it. But at least one Board of Education director is eyeing a possible legal battle. 

“I am concerned about resegregation of the schools,” said Director John Selawsky. “I would prefer to fight this.” 

Pacific Legal Foundation won a similar case, Crawford v. Huntington Beach Unified School District, in California’s Fourth District Court of Appeal last year, and in August 2002, the state Supreme Court declined to hear an appeal—leaving the Fourth District ruling as the law of the land.  

UC Berkeley law professor Jesse Choper said the Huntington Beach precedent leaves Berkeley Unified with little chance of victory in court. 

“The Supreme Court has declined review—bye-bye, that’s the end of the case,” he said. 

PLF’s suit challenges the student assignment policy on behalf of Berkeley resident Lorenzo Avila, who has two sons, ages seven and nine, in the school system. 

Avila, an equal opportunity specialist with the federal government’s Housing and Urban Development office in San Francisco, said he sued because he believes the student assignment plan is clearly illegal and sends a message that students are only welcome at a given school if they fit the right racial category. 

“I don’t think we would want to convey to families that their children are less valuable because of their race or ethnicity,” he said. 

Avila is asking for a change in policy, attorneys’ fees and unspecified monetary damages. But the plaintiff said he will drop the damages request if the district dumps its student assignment plan. 

In 1968 the Berkeley Unified School District became the first district in the nation to voluntarily desegregate, and has been seeking racial balance in its schools ever since. The Board of Education drafted the current five percent policy, known as “controlled choice,” in 1995. 

Under the plan, parents fill out a form indicating their child’s race and listing their top three choices of elementary schools. But the district retains ultimate control, assigning students based, in part, on race. 

District officials have acknowledged that their student assignment policy is on shaky legal ground for at least three years. In 2000, former Superintendent Jack McLaughlin created a Student Assignment Advisory Committee composed of parents, school staff and community members, to weigh alternatives to a race-conscious plan.  

The committee initially recommended that the district stick with its current policy and risk a lawsuit. But a series of court decisions reinforcing Proposition 209 spurred a shift in thinking.  

Last fall, the committee recommended that the district drop race from its school assignment policy and consider four other factors: household income, parental education level, English proficiency and single-parent family status. Pointing to simulations of the proposed plan, committee members said it would maintain racial diversity in the schools.  

The Board of Education never cast a formal vote on the proposal, but three of the five directors—Rivera, Selawsky and Terry Doran—expressed strong reservations about a policy that did not make explicit mention of race. 

Rivera said last week that he is still concerned about an alternative plan. Weighing factors like household income and parent education level might yield racially-mixed schools today, he said, but that could change with time. 

“Any system that doesn’t use race doesn’t guarantee diversity in the future,” he said. 

Rivera pointed to a study, released last week, predicting that 40 of San Francisco’s 114 public schools will be “severely resegregated” this year under a 1999 court order ending race-based enrollment. Racial separation will occur, according to the report, despite a two year-old admissions policy that weighs socioeconomic status, academic achievement, language status and other factors. 

David Levine, one of the attorneys who represented a group of Chinese-American students who sued the San Francisco schools and forced the court order, took issue with the study, arguing that race is not the only valid measure of diversity. Economically and linguistically mixed schools are also diverse, he said. 

Levine also predicted that if Berkeley adopted a similar policy, it would not see such a stark racial resegregation. Berkeley is much smaller than San Francisco, he said, and parents would be less hesitant to send their children across town to a school that includes students of other races. 

PLF’s Cook said any new Berkeley policy that weighs factors like language and household income should pass legal muster, but she warned against any blatant attempts to use those criteria as substitutes for race. 

“Skirting around the edges of Proposition 209 or not complying with the intent of California constitutional law is not acceptable,” she said. 

But Michael Harris, assistant director of the Lawyers Committee for Civil Rights of the San Francisco Bay Area, said it would be difficult to demonstrate in court that the district was using other factors as mere “proxies” for race. 

“It would be very difficult to prove unless there was some documentation to [show] what they are doing,” he said. 

Selawsky held out hope that a June 23 U.S. Supreme Court ruling that allows the use of race in college admissions could set the stage for a challenge to Proposition 209 and, eventually, a vindication of Berkeley Unified’s current assignment policy. 

But legal experts note that the ruling allows for the consideration of race, but does not require it, and California voters have decided to forbid affirmative action with Proposition 209. The Supreme Court ruling, said UC Berkeley emeritus law professor John Coons, provides no basis for a challenge to the voters’ will.