Page One

Legal Champion Enrolls In School Board Lawsuit

By Matthew Artz
Friday December 19, 2003

The Berkeley Unified School District has found the legal champion they hope can beat back a lawsuit that threatens to end racial balance in its elementary schools. 

Jon Streeter, a 1981 Boalt Hall graduate and a partner at San Francisco law firm Keker & Van Nest, won’t charge the district to defend it against the suit filed in August by the Pacific Legal Foundation (PLF). The conservative advocacy law group has charged that the district’s student assignment policy—requiring each school’s racial mix to come within five percent of the district-wide tally—violates Proposition 209. 

That measure, passed by voters in 1996, precludes racial preferences or discrimination in public education, employment and contracting. 

Despite continued silence from district officials, Streeter confirmed his appointment to represent the district, which in 1968 became the first in the nation to voluntarily desegregate. 

“Berkeley has an extraordinary legacy that deserves to be honored, and I’m pleased to be an advocate for it,” he said. 

PLF had been threatening to sue Berkeley for several years, but decided to proceed after winning a similar case, Crawford v. Huntington Beach Union High School District, in California’s Fourth District Court of Appeals last year. 

In that case, the judge ruled that Huntington Beach’s transfer policy—which in one instance prohibited a white student from transferring out of a white-minority high school unless another white student could be found to take his place—violated Proposition 209. 

PLF lead attorney Cynthia Jamison said the Huntington precedent would weigh heavily on the Berkeley case.  

“The court found that children have the right to attend school without being labeled based on their race,” she said. “That is the heart of 209.” 

Under Berkeley’s plan, parents fill out a form indicating their child’s race as African American, White or Other along with their top three choices of elementary schools. The district retains final authority to place students, in part, based on race. 

PLF filed the suit on behalf of Berkeley resident Lorenzo Avila, who has two sons in district elementary schools. 

Streeter, who has argued pro bono civil rights cases in the past but never a school desegregation case, refused to divulge his line of argument. He is scheduled to file a brief Jan. 9 in Alameda County Superior Court. 

In the aftermath of the Huntington Beach case, a host of attorneys and legal foundations offered to defend the district from what they perceive as the PLF’s drive to expand Proposition 209 deeper into public schools than voters intended. 

“This is an extremely important case because there are so many unanswered questions about 209,” said American Civil Liberties Union of Northern California Legal Director Alan Schlosser, adding that the ACLU might join the defense. 

For years the district has debated changes to its school assignment policy, last amended in 1995. 

Last year the board declined to vote on a recommendation from its School Assignment Advisory Committee that would have replaced race as an enrollment criterion in favor of four other factors: Household income, parental education level, English proficiency and single-parent status. 

Advocates of the plan said it would yield a nearly identical racial makeup for elementary schools while placing the district on firm legal footing. But a majority of the board feared that, over time, those factors might not guarantee racial diversity. 

Gary Orfield, co-director of the Civil Rights Project at Harvard University, said his research has shown that other factors substituted for race have in most cases failed to achieve racially diverse schools. 

“Nothing works as well as race,” he said, pointing to increased resegregation in San Francisco schools after a 1999 court case forced the city to eliminate race as a factor in school assignments. 

Orfield said he thought the Supreme Court’s decision this year upholding race as one among several valid criteria in determining enrollment for universities could aid the district’s case. 

The district is working on a revised school assignment plan that would add socio-economic factors along with race in determining placement. 

Berkeley Unified is not the only district in California that still uses race as a factor in school assignment, but Jamison said Berkeley caught her attention because of its refusal to consider a compromise. 

“What struck me was how insistent they were about using race,” she said, noting Boardmember Joaquin Rivera’s declaration that he was determined to continue the board’s policy unless a higher court told him he couldn’t. 

“That simply said litigation was the only route,” Jamison added. 

Should Berkeley lose the case, it would likely be allowed to consider other factors for assigning students to elementary schools so long as the district could prove they weren’t merely proxies for race. 

Huntington Beach dropped their race-based transfer program entirely, opting for a purely random system, according to Carolyn Shirley, a school district employee. She said that the high school in question, Westminster, had not seen an exodus of white students this year despite the change in policy. 

Berkeley’s school assignment plan is hardly an exact science. Several schools have racial demographics that exceed the five percent limit. 

Although African Americans comprise 31 percent of district enrollment and whites 29 percent, Washington Elementary is 37 percent African American and 19 percent white, while Cragmont, which is in the same student assignment zone, is 23 percent African American and 31 percent white, according to the California Basic Educational Data System. 

Also since Latinos and Asians are grouped together as “Others,” their representation in schools is unbalanced. Latinos comprise 16 percent of the district’s population but make up 37 percent of students at Thousand Oaks and 35 percent of students at Rosa Parks. The next highest concentration of Latinos is at Cragmont where they comprise 22 percent of students.