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Berkeley Unified School District earned another legal victory Tuesday, March 17, for its student placement plan.  

The California Court of Appeal upheld an earlier Alameda County Superior Court ruling that the plan is fair and legal.  

In October 2006, the Pacific Legal Foundation, a conservative Sacramento-based public interest litigation firm, sued Berkeley Unified on behalf of the American Civil Rights Foun-dation for violating California’s Proposition 209 by racially discriminating among students in placing them at elementary schools and in programs at Berkeley High School.  

After the Alameda County Superior Court ruled in favor of the plan in April 2007, the foundation appealed on behalf of the ACRF.  

In March 2008, the foundation asked the California Court of Appeal to review the 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.”  

On Tuesday, the Court of Appeal ruled that because the district assigned children to schools based on neighborhood demographics, and not specifically because of any individual student’s race, the school district was not in violation of Prop. 209’s prohibition on the use of race in public education.  

“The challenged policy does not use racial classifications; in fact, it does not consider an individual student’s race at all when assigning the student to a school,” Justice Patricia Sepulveda said in the 3-0 ruling. “Instead, the assignment policy looks at the student’s residential neighborhood, and considers the average household income in the neighborhood, the average education level of adults residing in the neighborhood, and the racial composition of the neighborhood as a whole. Every student within a given neighborhood receives the same treatment, regardless of his or her individual race.” 

The ruling further stated that the appellate court had found that educators who included a “general recognition of the demographics of neighborhoods in student assignments, without classifying a student by his or her race, do not ‘discriminate against, nor grant preferential treatment to, any individual or group on the basis of race.’” 

Berkeley Unified Superintendent Bill Huyett said that he was delighted with the news. 

“We are very proud of the system—it has been a long-standing part of Berkeley Unified,” he said. “It’s a fair and equal system for the kids and it serves them well.” 

A statement sent out by Alan Foutz, Pacific Legal Foundation’s lead attorney for the case, said that the “district uses race as a factor in classifying the level of ‘diversity’ in neighborhoods, and uses that classification as a key factor to determine where kids go to school.”  

“The court has carved a big hole in Proposition 209 by permitting school districts to use race as one of the factors that determine where kids will go to school,” Foutz said in his statement. “Prop. 209 is comprehensive and categorical in banning the use of race in student assignment. The court has undermined that mandate for colorblind educational policy, by allowing districts to continue using race in its student assignment decisions.”  

Huyett defended Berkeley Unified’s Elementary School Assignment Plan, explaining that race was one of several factors used by the district to assign students to schools. 

Jory Steele, managing attorney for the American Civil Liberties Union, one of the legal advocacy groups that represented parents in support of the district's efforts to ensure integrated schools and classrooms, said that the court’s decision had statewide implication for school districts that wanted to maintain diversity in their schools. 

“We are thrilled by the ruling,” Steele said. “The decision will allow Berkeley Unified to act as a model for other districts in the state who want to maintain voluntary desegregation without violating Prop. 209.” 

Francisco Martinez, the district’s director of human resources who was present at the hearing last week along with the district’s pro-bono attorneys from Keker & Van Nest, said that Berkeley’s commitment to diversity and integration dated back to 1968, when the district had voluntarily desegregated its schools. 

According to historical information recorded by Bruce Wicinas, who helped craft the assignment plan, the passage of Prop. 209 in 1996 prompted then-superintendent Jack McLaughlin to initiate a community process to expand Berkeley Unified’s student assignment plan to protect it from lawsuits. 

However, it wasn’t until Jan. 2004 that the district submitted the final draft of the new student assignment plan to the Berkeley Board of Education. 

“When we crafted this plan, we looked at students who lived in our three geographic attendance zones—whether they have siblings in our schools or have special needs, among other things,” Martinez, who lead the process to revive the student assignment plan, said. “The three main factors used to place students is parent education level, parent income level and student demographics which includes race. This helps to create a diversity category. At no time are individual characteristics taken into account.” 

The Pacific Legal 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 Pacific Legal Foundation has tried on three occasions to attack our student assignment plan, but the courts have found the district to be within the protection of the constitution,” Martinez said. 

Fountz said that the Pacific Legal Foundation expected to appeal the ruling, adding that a petition for review to the California Supreme Court will have to be filed by April 27.