Schools Adjust After Berkeley diversity Ruling

By Stephanie O'Neill

A court of appeal ruling concerning the Berkeley Unified School District?which the California Supreme Court let stand last month?is giving schools new options for diversifying their classrooms without running afoul of Proposition 209's stringent limits on race-based preferences.

In March the First District Court of Appeal ruled constitutional a policy that uses neighborhood characteristics?including race?in assigning students to schools (Amer. Civ. Rts. Found. v. Berkeley USD, 172 Cal. App. 4th 207 (2009)). Under the policy, neighborhoods are rated by average household income, average educational level of adults, and the percentage of "students of color." All students in a given neighborhood then are given the same "diversity score" for use in school assignments; they are not categorized by race?or any other criteria?on an individual basis. And the make-up of campuses better reflects the citywide population.

"What Berkeley was able to accomplish in this case was to have a plan that's sensitive to diversity broadly defined, but in a way that does not line up strictly with race," says Jon B. Streeter, a partner at Keker & Van Nest in San Francisco, which represented the district.

According to Catherine Lhamon, assistant legal director of the American Civil Liberties Union of Southern California (which represented Berkeley parents in defense of the assignment policy), the ruling is likely to provide legal cover for schools that change their assignment policies to include race in some form.

Indeed, some districts are already reacting. The San Francisco Unified School District , for example, has been struggling in the past year to alleviate racial isolation and achievement gaps caused by its parent-choice school-enrollment program. The Berkeley ruling will make it easier for the district "to continue with our plan to reach educational diversity," says Maribel Medina, the district's general counsel. "It was a little challenging [before] not having clarity on how courts would interpret a diversity plan."

But despite the supreme court's refusal to review, clarity could still be elusive if another appeals court rules against a Berkeley-style plan.

Meanwhile, the plaintiff in the Berkeley case, the Sacramento-based American Civil Rights Foundation (ACRF), remains adamant that the plan in fact used race improperly. "The California Constitution prohibits discrimination and preferences based on race?not just when race is the final determinant or even the dominant determinant," says Alan Foutz, attorney for the Pacific Legal Foundation, who argued the case for the ACRF.

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