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American Civil Rights Foundation v. Berkeley Unified School District

March 17, 2009

AMERICAN CIVIL RIGHTS FOUNDATION, PLAINTIFF AND APPELLANT,
v.
BERKELEY UNIFIED SCHOOL DISTRICT ET AL., DEFENDANTS AND RESPONDENTS; JUDY APPEL ET AL., INTERVENERS AND RESPONDENTS.



(Alameda County Super. Ct. No. RG 06292139). Trial Judge: Honorable Cecilia P. Castellanos.

The opinion of the court was delivered by: Sepulveda, J.

CERTIFIED FOR PUBLICATION

Racial integration of America's public schools began with Brown v. Board of Education (1954) 347 U.S. 483, when the United States Supreme Court ruled that state-imposed segregation in education that intentionally discriminated against African Americans on the basis of their race was unconstitutional. Half a century after Brown, some educators have gone beyond removing state-imposed segregation, and have implemented affirmative policies fostering social diversity in their schools. The question confronting courts today is whether these new policies go too far and themselves improperly discriminate on the basis of race.

We conclude that the particular policy challenged here-which aims to achieve social diversity by using neighborhood demographics when assigning students to schools-is not discriminatory. 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. 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. We find that educators who include 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." (Cal. Const., art. 1, § 31, subd. (a).)

I. FACTS*fn1

In 1996, California voters adopted Proposition 209, which amended the state Constitution to provide that state and local government entities (including school districts) "shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." (Cal. Const., art. 1, § 31, subds. (a), (f) (section 31).)

Plaintiff American Civil Rights Foundation (ACRF) is a nonprofit corporation "dedicated to monitoring and enforcing the civil rights laws," with at least one member living in Berkeley, California. In October 2006, ACRF sued the Berkeley Unified School District, its superintendent, and the Berkeley Board of Education (collectively School District) for alleged constitutional violations in assigning students among the School District's 11 elementary schools, and in assigning students to academic programs within the School District's only high school.*fn2 ACRF alleged that the School District used race to discriminate against, and to grant preferences to, students when making student assignments, in violation of section 31.*fn3

A. The Elementary Student Assignment Plan

The School District has a long history of trying to eliminate school segregation "created by the de-facto residential segregation within the City" of Berkeley. From September 2000 forward, "[a]s a result of the changing legislation in California," the School District explored assertedly "race neutral factors to create school diversity." In 2004, the School District adopted the "Elementary Student Assignment Plan" (Plan) at issue here. The Plan determines which of the School District's 11 elementary schools (kindergarten through fifth grade) a child will attend.

The avowed purpose of the plan is to "promote the values of socioeconomic and racial diversity," and is founded upon a belief "that diversity in our student population enriches the education experiences of students; advances educational and occupational aspirations; enhances critical thinking skills; facilitates the equitable distribution of resources; reduces, prevents or eliminates the effects of racial and social isolation; encourages positive relationships across racial and economic lines by breaking the cycle of racial hostility to foster a community of tolerance and appreciation of students from varied and diverse backgrounds; and promotes participation in a pluralistic society." When supporting adoption of the plan, the School District superintendent stated that a multifactor approach would enrich the educational experience of all students by expanding diversity beyond racial and ethnic considerations to include socioeconomic factors.

Student assignments under the Plan proceed through several layers: parental choice; priority categories; and diversity categories (the last of which is at issue on appeal). Parents complete a parent preference form is which parents rank (in order of preference) three of the 11 elementary schools they wish their child to attend. The School District attempts to assign students based on their parents' preferences but assignment is made within the constraints of six priority categories. The priority rankings are: (1) students currently attending the school who live within that school's geographic "attendance zone";*fn4 (2) students currently attending the school who live outside the zone; (3) siblings of students currently attending the school; (4) School District residents not attending the school who live within the zone; (5) School District residents not attending the school who live outside the zone; and (6) nonresidents wanting an interdistrict transfer.

Within a given priority category, the School District uses diversity categories to make assignments with the goal that the student body at each elementary school reflects the racial and socioeconomic diversity of the total elementary school population in the attendance zone.*fn5 The School District calculates a student's diversity category by dividing the district into 445 " 'planning areas,' " which are geographic divisions typically between four and eight city blocks. Each planning area receives a diversity category of one, two, or three that measures that area's composite diversity, which is based on three factors: (1) the average household income of those living in the planning area; (2) the average education level attained by adults living in the planning area; and (3) the percentage of " 'students of color' " living in the planning area.*fn6 Information on household income and education level is obtained from census data, and the percentage of students of color is derived from a multi-year pool of student data collected by the School District. Planning areas containing a relatively high concentration of students of color from low-income, lower educated households are generally category one planning areas. Planning areas containing a relatively high concentration of White students from high-income, higher educated households are generally category three planning areas. Planning areas whose demographics are less concentrated in terms of race, household income, and education level are generally category two planning areas. Every student within a given planning area receives the same diversity score, regardless of his or her individual race. The Plan states: "[T]he actual personal attributes of students" is not relied upon "in determining student assignments." Instead, "diversity characteristics derived from the planning area in which the student lives" are used to calculate a diversity category, and students from each category are assigned proportionately to individual schools to approximate the racial and socioeconomic diversity of the geographic attendance zone as a whole.

As an example of how the Plan operates, we use the scenario proposed by plaintiff ACRF in its briefing on appeal. Assume an elementary school has a concentration of fourth graders living in category one planning areas that is substantially higher than the concentration of category one students within the entire district. That school then receives applications to enroll from two fourth graders who have just moved into the school's attendance zone. One of the students lives in a category one planning area and the other student lives in a category three planning area. The School District will give the student living in a category three planning area a higher priority for enrollment over the student living in a category one planning area. That student will receive priority regardless of whether his or her own personal attributes (household income and education levels, and race) match the general attributes of the planning area in which the student lives.

B. The High School Student Assignment Plan

The School District has one high school comprising grades 9 to 12: Berkeley High School. Students have the option of choosing from six academic programs with differing curricula. The academic programs include four "small schools": the Arts and Humanities Academy; Community Partnership Academy; Communication Arts and Sciences; and School of Social Justice and the Environment. The programs also include two "smaller learning communities within the Comprehensive High School": Academic Choice and Berkeley International High School. The system used to ...


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