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Berkeley Unified School District unveiled a new plan Wednesday for assigning students to elementary schools that supporters hailed for expanding diversity beyond race and critics blasted as a sitting duck for a legal challenge already mounted against the district. 

If adopted by the school board, two new factors—parental income and education level—will be added to race in determining how students are placed in elementary schools.  

The proposal, four years in the making, follows the lead of districts nationwide in using socioeconomic factors to achieve school diversity, but draws the line at race at a time when California courts have interpreted state law to forbid any consideration of race in public education. 

“They’re fooling themselves if they think this thing is going to fly,” said Hastings Law Professor David Levine, who in 1999 won a federal court case that struck down a San Francisco school assignment plan that included racial quotas. “They’re just wasting everyone’s time and money.” 

School board members praised the plan at Wednesday’s meeting, but opted to delay final approval until the following meeting Feb. 4 to gauge public support. 

Last year the conservative Pacific Legal Foundation sued Berkeley Unified over its current assignment plan—which requires each school’s racial mix to come within five percent of the district-wide tally—charging that it violated Proposition 209. 

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

Lead PLF attorney Cynthia Jameson said she would pursue the case as long as Berkeley Unified insisted on using race as a factor. 

The PLF suit was not the driving factor behind the new plan,” Superintendent Michele Lawrence said. “I was concerned we had only considered race. I wanted to make sure we recognized other elements that make up diversity.” 

The proposal retains several features of the old plan. Elementary schools will still be divided into the same three zones, and students will still pick their three preferred schools and have priority to attend a school that a sibling already attends or that has a language program needed by the child. 

But instead of placing children into elementary schools based, in part, on self-declared race, the new system will rely on assumed diversity characteristics of a planning area where the student lives. 

Each planning area, about four to eight city blocks, will be given a value for parental income and education based on 2000 census information and racial breakdown, between white and non-white, based on multi-year K-5 enrollment.  

The planning areas will be assigned a value from 1-3 ranging from neighborhoods that tend to be more white with wealthier and highly educated parents to neighborhoods that have more minorities with poorer and less educated parents.  

Forms asking for student’s racial information will still be collected, in part, to monitor how well the system maintains racial balance at the district’s 11 elementary schools. 

Models calculated by District Admissions and Attendance Manager Francisco Martinez show the new system maintaining nearly identical levels of racial diversity while improving socioeconomic diversity. For example, Rosa Parks and Thousand Oaks Elementary Schools have similar student populations, with about 40 percent Latino students, but under the current system, Thousand Oaks, which is located in the Berkeley Hills, has about twice as many students whose parents fit into the most advantaged category and about one-half as many students who fall into the least advantaged category. 

That is significant, said PTA Council President Roia Ferrazares, because schools serving wealthier families tend to have a greater base of parents to volunteer time and fund-raise for the school. 

Other diversity factors were considered, Martinez said, including single parent status, test scores, and second language skills, but they were more didn’t provide reliable data.  

Choice would be slightly sacrificed under the new plan; Martinez estimates 67 percent of students would have received their first choice of schools this year, compared to 75 percent under the current system. 

Berkeley Unified and the PLF have been shadowboxing on school assignment since 2000. Faced with threats of a lawsuit, then-Superintendent Jack McLaughlin formed a subcommittee to devise a new school assignment plan that could pass muster with Proposition 209. The committee saw both its proposals rejected, the first by McLaughlin for recommending to keep the old system in the face of unfriendly legal decisions from the California courts, and the second by the board for excluding race entirely as a diversity factor. 

“If you look at San Francisco or Oakland or any large school district in California there has be a reversal of large scale desegregation which is not to the benefit of any student,” said Board President John Selawsky. 

Proponents of school desegregation hope the current proposal, devised in consultation with BUSD attorney Jon Streeter, can use its indirect and imperfect consideration of race to wiggle its way under Proposition 209, but Levine said legal precedent is not on their side. 

The California Supreme Court has taken a strict interpretation of 209, he said, forbidding any consideration of race. And in a similar case last year the PLF won a suit against Huntington Beach Union District for a race-conscious student transfer policy. “That slams the door on this,” Levine said. “They say no how, no way can you use race as a formula.”