Court Delays Ruling On BUSD Desegration Plan

Tuesday February 24, 2004

An Alameda County Superior Court Judge is expected to rule next week on a lawsuit seeking to invalidate a Berkeley school desegregation plan. The plan assigns elementary students to schools based partly on race. After a 30 minute hearing last Friday, Alameda County Superior Court Judge James Richman declined to decide immediately on a motion filed by the Berkeley Unified School District to dismiss the suit. 

The lawsuit was brought by the conservative Pacific Legal Foundation (PLF) on behalf of Berkeley resident Lorenzo Avila. PLF and Avila argue that the desegregation plan violates Proposition 209. That measure, passed by voters in 1996, precludes racial preferences or discrimination in public education, employment or contracting. 

Since voters passed Proposition 209, the PLF has sought to chip away at school desegregation policies predicated on race. In 2002 the PLF won a similar case in the a state appeals court against the Huntington Beach Union School District.  

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. 

The Berkeley desegregation plan originally required each school’s racial mix to come within five percent of the district-wide percentage. The plan was amended earlier this month to include socioeconomic factors and drop a requirement that students declare their race on a form used in the assignment process. However, PLF attorney John Findley said he would proceed with the case against the former plan to “show that it’s unconstitutional.” 

During the proceedings Judge Richman acknowledged he was “bound” by the Huntington Beach case if applicable, but questioned if the Huntington school plan, which involved “race-based movement” of students, was similar to the Berkeley assignment plan. 

After the hearing John Streeter, representing Berkeley Unified, said he “took heart” from Judge Richman’s sometimes-intense questioning. PLF’s Findley said that if Judge Richman sustained Berkeley Unified’s dismissal motion, PLF would appeal.›