BUSD Asks for Lawsuit Dismissal

Friday January 16, 2004

Attorneys for the Berkeley Unified School District last week asked a judge to toss out a lawsuit that threatens to end racial balance in its elementary schools. 

The preliminary motion to dismiss is a long shot, acknowledged Jon Streeter, the attorney defending the district free of charge against a suit brought by the Pacific Legal Foundation. 

The well-heeled conservative group has charged the district’s student assignment policy, which tries to balance elementary schools by race, violates Proposition 209—a 1996 voter initiative precluding racial preferences in public education. 

In 2002 they won a similar case forcing Huntington Beach to scrap a student transfer program based on race, which they argue should hold for Berkeley as well.  

Judge James Richmond could rule on the motion as early as a hearing scheduled for Feb. 20. If he opts to deny, both sides will present written expert testimony before possibly heading to trial. 

In his brief, Streeter argues the California Fourth District Court of Appeals Judge erred in the Huntington Beach decision when he held that Proposition 209 overruled an earlier amendment to the state constitution that gave districts express permission to integrate schools. 

A court is bound to harmonize conflicting constitutional provisions instead of choosing a line of authority, he said. 

In a more novel argument, Streeter wrote that a law signed by former Gov. Gray Davis just before he was removed from office safeguards BUSD policy. He contends that the statute binds Proposition 209 to the definition of “discrimination by race” contained in a 1994 treaty signed by the U.S. The International Convention on the Elimination of All Forms of Racial Discrimination upholds laws protectng minority groups which otherwise could lose fundamental rights.  

The PLF would likely argue that the legislature has no power to override a state constitutional amendment, Streeter said, but he maintains that since the state constitution has conflicting views on school desegregation, an international treaty, like a supreme court ruling, would be the trump card. 

“This issue has been lurking under the radar screen,” Streeter said. “If the judge rules the argument is correct it will blow a bigger hole in 209.” 

Berkeley school officials are scheduled to unveil a new school assignment policy at Wednesday’s board meeting. Streeter would only say he consulted on the new policy which is expected to add socio-economic factors to race in determining elementary school placements.