If it's true that law follows society, then this is a sure sign of the end of the conservative era and the start of a period of fairness.
Judge allows race as factor in enrollment
Decision is first since Prop. 209 to let school district integrate
Bob Egelko, SF Chronicle Staff Writer
Wednesday, April 11, 2007
Berkeley's public schools, the first in the nation to desegregate voluntarily, can consider the racial composition of a student's neighborhood in an enrollment system designed to keep each campus racially diverse, an Alameda County judge has ruled.
The decision by Superior Court Judge Winifred Smith could lead to the first California appellate ruling on a school district's ability to maintain a voluntary integration program under Proposition 209, the 1996 initiative that banned race and sex preferences in public education, employment and contracting.
The case may also be affected by a pending U.S. Supreme Court decision on the constitutionality of school integration plans. A ruling is due by the end of June on lawsuits by white parents challenging programs in Seattle and Louisville, Ky., that take students' race into account in school assignments.
Even if the nation's high court allows some form of race-based integration, however, Prop. 209 could still ban it in California. In several cases not dealing with schools, state courts have interpreted the initiative as an absolute ban on racial classifications.
"Prop. 209 prohibits the use of race in any part of public education in California,'' attorney Sharon Browne of the Pacific Legal Foundation said Tuesday. She said she will appeal the ruling, which the judge issued Friday, on behalf of an anti-affirmative action group created by Prop. 209 founder Ward Connerly called the American Civil Rights Foundation.
But attorney Diana Tate of the Lawyers' Committee for Civil Rights, representing parents who sided with the district, said the ruling shows that Prop. 209 can be reconciled with school officials' duty under California law to "prevent segregation regardless of its cause.''
The Pacific Legal Foundation has also sued the Los Angeles school district for its alleged use of racial criteria in determining who may attend specialized "magnet'' schools, and has threatened to sue San Francisco if the city Board of Eduation reinstates the use of race as a factor in school assignments. San Francisco took students' race into account under a court-supervised desegregation program from 1983 until 2001, when a judge ordered elimination of racial criteria in response to a suit by Chinese American parents.
The 9,000-student Berkeley Unified School District has taken measures since 1968 to promote racial balance between schools in the largely minority flatlands and the mostly white hillside and UC Berkeley neighborhoods.
Its current plan, adopted in 2004, gives each neighborhood of four to eight blocks a diversity rating, based on parents' income and educational levels and the students' racial composition. The district uses that rating to promote balance at the city's 11 elementary schools and in special academic programs at Berkeley High School.
In her ruling, Smith said the enrollment system does not violate Prop. 209's ban on racial preferences because the district considers race only indirectly, as a factor in a neighborhood's diversity rating, and does not determine individual student placements.
"The district simply takes racial diversity into account, along with other diversity indicators, as a means of achieving its goals of integration of its schools,'' the judge said.
She refused, however, to dismiss one part of the lawsuit, challenging a Berkeley High tutorial program called the Academic Pathways Project. The lawsuit claimed that the program is reserved for minorities as well as low-income students, an arrangement that may violate Prop. 209, Smith said.
E-mail Bob Egelko at email@example.com.
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