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Two days after the Pacific Legal Foundation (PLF) sued Berkeley Unified School District, charging it with violating California’s Proposition 209 by racially discriminating among students during placements at elementary schools and at programs at Berkeley High, school district officials said they will not change their policies. 

“BUSD stands firmly by its elementary student assignment plan for Berkeley elementary schools,” said Berkeley Superintendent Michele Lawrence. “Pacific Legal wanted to make a public splash on the 10th Anniversary of Proposition 209 and they used Berkeley schools to do that. Their misguided intent is needless to say a distraction at the beginning of a new school year.” 

Board Director Shirley Issel echoed Lawrence’s words.  

“A high profile lawsuit like this at this time is a big distraction,” she said. “It is very unfortunate timing, especially at a time when we are busy teaching our children and working hard to pass Measure A.” 

The lawsuit, American Civil Rights Foundation vs. Berkeley Unified School, filed at the Alameda County Superior Court Wednesday, alleges that BUSD “uses race as a factor to determine where students are assigned to public schools and to determine whether they gain access to special educational programs.” 

Attorney Paul J. Beard, representing the Sacramento-based non-profit PLF, said in a statement that concerns were: the elementary student assignment plan for Berkeley Elementary Schools, the admissions policy for Berkeley High School’s small schools and academic programs; and the admissions policy for Berkeley High School’s AP Pathways Project.  

“These plans and policies use students’ skin color to help determine how individual students will be treated,” said Beard. “That’s unfair and transmits a harmful message to our kids that skin color matters—and, under Proposition 209, it also happens to be illegal.” 

A provision of the California Constitution, Proposition 209 was enacted by California voters in 1996 and “prohibits discrimination or preferences based on race or sex in public education, employment, and contracting.” 

In 2003, the PLF sued the Berkeley schools on behalf of a parent who charged the district with race-based assignment of students in a different and earlier Berkeley program, but the case was dismissed by Judge James Richman who said that voluntary desegregation plans or ‘race-conscious’ school assignment systems were not specifically prohibited by Prop. 209. 

This time, Beard said, “We are suing BUSD on behalf of a California non-profit public benefit corporation called American Civil Rights Foundation, whose members include individuals who are residents and taxpayers in Berkeley. They are dedicated to monitor and enforce civil rights laws, including Proposition 209.” 

Berkeley’s student assignment plan divides the city into three sections, with each running from the bay to the hills. 

“The zip code plays the most important role in this plan,” said BUSD spokesperson Mark Coplan. “Students are assigned to schools within their section based on a system that takes into account race, parent income and parent education level. They can select up to three schools within their area and about 85 percent of families get their first choice. We aim to bring children from various educational, racial and socio-economic backgrounds together and have so far been successful.” 

“Telling students they can’t attend a particular school because of their race and the race of their neighbors is immoral and illegal,” said Beard. 

Karen Hemphill, 2006 School Board candidate, said that if schools did not look at ethnicity and socio-economic diversity then Berkeley would end up with segregation.  

“I am very concerned that PLF is choosing to revisit this issue,” Hemphill said. “There are certain individuals in the baby boomer generation who did not grow up with different cultures around them and are therefore closed to new ideas and diversity. They are the ones who have a problem with the school assignment plan.” 

The Coalition to Defend Affirmative Action, Integration, and Immigrant Rights And Fight for Equality By Any Means Necessary (BAMN) expressed their support for the school district at the school board meeting on Wednesday. 

“The PLF lawsuit that was filed today gives Berkeley a chance once again to stand up and fight for integration and quality education,” said Mark Airgood, a BAMN representative. “This is an important opportunity to show that Berkeley is leading the nation on integration. Two years ago when the city went on to win the case against PLF, it was the parents, the students and this very board which came together to support the school district’s integration plan. I am confident it will be the same this time too.”