Court Hears Suit on School District's Race Policy

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The California Court of Appeal heard oral arguments yesterday regarding whether the Berkeley Unified School District's use of race in elementary school enrollment placement is discriminatory.

The Pacific Legal Foundation, representing the American Civil Rights Foundation, is attempting to appeal the Alameda County Superior Court's decision favoring the district's Elementary School Assignment Plan.

The court ruled in April that the plan was not in violation of Proposition 209, the 1996 amendment prohibiting educational decisions based on race, ethnicity or gender.

The Pacific Legal Foundation filed for the appeal on March 17.

"As to why the court sided with the district in this case, I think it took an overly narrow view of the prohibition that is contained within Prop. 209," said Alan Foutz, the Pacific Legal Foundation attorney handling the case.

The plan is an attempt to increase diversity in elementary schools in the city, according to Mark Coplan, the district's public information officer.

The district created a diversity map that divides Berkeley into 445 "planning areas." The plan considers three factors relating to students' geographic location-parent education level, parent income level and race and ethnicity, Coplan said.

"If my kids were put in for a school, they would look at the geographic location we live in and what the typical breakdown of students in that area is," he said. "Our plan doesn't conflict with anybody's ideas of discrimination."

Betsy Sako, a second grade teacher at Berkeley Arts Magnet at Whittier, said city residents expect their schools to be diverse.

"(The plan is) just good for society at large," Sako said. "You can't teach tolerance until you grow up with it."

This will be the third time in four years that the case has been in court. In the previous two cases, the courts ruled in favor of the district, Foutz said.

The district's attorney Jon Streeter claims that the American Civil Rights Foundation is calling for "race blindness" by arguing their case from a very literal interpretation of the proposition.

"They have tried to mount their Prop. 209 attack in the abstract, without an actual pupil who didn't get into their choice of school," Streeter said. "I think its going to be very difficult to persuade the court to come out with an opinion based upon some interpretation."

But Foutz said that if race is one of the factors used when making educational decisions-regardless of the role of other factors-a violation of the proposition has occurred.

"The difference between us and the district is that it believes it's okay to use race, as long as the race of particular individuals is not the only final determining factor," Foutz said.

Both Streeter and Foutz agreed that the judges seemed undecided after the three hours of arguments.

"There was not a lot of questioning from the panels, but they did give the briefing a lot of attention," Foutz said. "They were pretty well aware of the cases, and both sides did a good job of arguing their positions."

The judges have 90 days to make a decision. According to Foutz, if the American Civil Rights Foundation loses the appeal, the case will be taken to the California Supreme Court.

Streeter said he anticipated Foutz to continue moving the case higher in the court system, but expects the results to remain the same.

"I don't think that it matters which judges have the final word on this case, I don't think there is a different audience there," Streeter said.


Contact Genevieve Head-Gordon at [email protected]

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