Pacific Legal Foundation Appeals BUSD Diversity Ruling

By Riya Bhattacharjee
Tuesday March 18, 2008

The Berkeley Unified School District’s student assignment system was once again challenged by Pacific Legal Foundation (PLF) Monday when the Sacramento-based right-wing public interest litigation firm appealed an April 2007 court decision which had ruled in favor of the district. 

The foundation sued Berkeley Unified for violating California’s Prop. 209 by racially discriminating among students with placements at elementary schools and at programs at Berkeley High in October 2006. 

An Alameda County Superior Court judge ruled that the district’s student assignment system and integration system was fair and legal. 

On behalf of the American Civil Rights Foundation, the foundation asked the California Court of Appeal (Second District) to review the judge’s decision affirming Berkeley’s “use of race as a factor to determine where students are assigned to public schools and to determine whether they gain access to special educational programs.” 

“Berkeley seems to think that you are not using race in public education if you use race along with several other factors,” PLF attorney Alan Foutz said in a press release Monday. “That’s like saying you are not using flour in your cake recipe because you also have baking powder, sugar, water, and oil. Berkeley still has race in their mix of factors for student assignments. And that violates Proposition 209 ... These plans and policies use students’ skin color to help determine how individual students will be treated. That’s unfair and transmits a harmful message to our kids that skin color matters.” 

Foutz could not be reached by press time Monday. 

District superintendent Bill Huyett defended the district’s assignment system. 

“We have been successful in defending our Student Assignment Plan in court on two occasions, and we are confident that we will be successful in this appeal as well,” he told the Planet in a statement. 

The foundation sued Berkeley Unified in 2003 on behalf of a parent who charged the district with race-based assignment of students in a different and earlier Berkeley program. 

The case was dismissed by Judge James Richman who ruled that voluntary desegregation plans or ‘race-conscious’ school assignment systems were not specifically prohibited by Prop. 209.  

The attack on Berkeley public schools by PLF last year came on the 10th anniversary of Prop. 209.  

Speaking to the Planet in an interview in October, then-superintendent Michelle Lawrence said that PLF had used the Berkeley schools to make a “public splash” during the anniversary.  

The lawsuit alleged 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.”  

In the press release, Foutz said PLF was concerned about the following: 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.  

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

The assignment system in BUSD lets parents put in their first, second and third school choices, and then a computer runs a lottery—which takes into account factors such as race, ethnicity, student background and parental income and education—to give the final placement.