Berkeley schools’ complex diversity scheme

A violation of Proposition 209, legal group claims

By Michael Klein
From the May 2007 Print Edition

            On April 6, an Alameda County Superior Court judge ruled in favor of the Berkeley Unified School District in a recent suit brought by the American Civil Rights Foundation against the current BUSD Student Assignment Plan, which the district implemented in 2002.

            Judge Winifred Y. Smith ruled that the BUSD’s Student Assignment Plan is indeed within the legal boundaries of Proposition 209 as it does not single out individual students by solely race in its diversity classification system, but rather considers a composite diversity index of three diversity factors to assign students to Berkeley schools.

The current plan incorporates two other aspects of a redefined notion of diversity: parents’ income and education. Together with race, these two aspects constitute a diversity formula, which attempts to avoid the snare of Proposition 209.

            The plan divides the BUSD into 445 “planning areas” which are equivalent to 4-8 city blocks. Each planning area is then assigned to either of three overall diversity categories based upon an overall diversity number. In assigning these diversity categories, each diversity factor (race, parental income, and parental education) determines exactly one-third of the overall diversity number. Depending on the overall number, the planning area is assigned to one of the three categories.

This system avoids consideration of individual attributes for student assignment, but rather seems to rely upon the overall diversity “characteristics” of each planning area to proportionately assign students based upon which category their area falls under. The BUSD attempts to maintain proportional amounts of the three categories in each school. This assignment plan concerns all K-5 grades, Berkeley High School, and a continuation school.

            Paul Beard, an attorney for the Pacific Legal Foundation, which represented the American Civil Rights Foundation in the case decided April 6, explains that they represented a group of citizens and taxpayers in this suit.  The suit was against the new Student Assignment Plan, against the Berkeley High School small schools’ admissions practices, and against the Academic Pathways Program admissions practices.

Judge Smith upheld the Student Assignment Plan and the small schools’ admissions practices, but allowed the case to continue regarding the Academic Pathways Program admissions process.

            Mark Coplan, the public relations officer for the BUSD, says that despite this recent challenge to the BUSD assignment program, the Berkeley community is pleased with the goals and outcomes of the plan. “[The plan] has been hugely successful in the schools and the courts. It has stood up against two courts: the recent decision and one of 2005,” Coplan said. He clarified that the goal of the current assignment program, though it has evolved from a racially based 1968 plan, is not purely racial integration. Rather, Coplan said, “You can’t break down students’ diversity to only race. It must include other factors as well, such as socioeconomic factors.”

Coplan characterized the PLF’s recent challenge essentially as a reopening of its 2005 challenge, specifically to the student assignment program, which resulted in the upholding of the program because the court found that “race and/or ethnicity is but one of several factors,” that the BUSD uses to assign students. Indeed, Copeland alleged that the PLF’s recent efforts here are really about a broad national agenda to “shut down” diversity plans similar to that of Berkeley’s.

            Beard sees the issue in a different light. He concludes that just because race is now one of three diversity factors considered does not produce a legal outcome under Proposition 209. Further, he claims that the District is “living in a cloud” if it believes the program is successful; rather, parents call the PLF quite often to voice their discontent.

Though the plan stipulates parents have choice in school preferences, Beard holds that many preferences are denied to parents for the sake of maintaining school diversity. In fact, says Beard, the plan resembles those prevalent in the 1950s in the South, where similar plans were used to fulfill the contrary goal of segregation.

Besides its illegal nature, Beard says, the complex diversity formula is not effective and has cost taxpayers more than it has supposedly offered. Beard and the PLF will continue pending litigation against the Academic Pathways Program admissions process before issuing any further challenges to the BUSD Student Assignment Plan. The BUSD has adapted its plan over the years to comply with changing legal requirements and avoid such confrontations.

Due to reasons the BUSD explains as “demographic changes” and budget constraints leading to school closure, racial imbalances perpetuated over time under the district’s first student integration plan of 1968. Thus in 1995, after six years of evaluation and community deliberation, the precursor to the current plan was imposed; it was described as the “controlled choice” plan.

According to this student assignment plan, schools were first reorganized into grades K-5 (elementary) and 6-8 (middle). The BUSD divided the city of Berkeley into three zones and then gave parents a choice of sending their child to a school in one of the three zones. However, the “controlled” aspect referred to the overriding principle that the BUSD had the ultimate authority to determine the destination for a child’s school attendance.  The schools were required to meet certain zone-wide racial proportions of three racial categories: black, white, and other ethnicities, at a ratio of plus-or-minus 5 percent.

Thus if School A, located in Zone 1, happened to have an excessive black population enrolled, then parents of black students preferring School A would likely have their students’ enrollment denied due to racial imbalance. These students would instead be sent to another Zone 1 school with fewer black students.

            Due to the ratification of Proposition 209 in 1996, BUSD Superintendent Jack McLaughlin assembled a Student Assignment Advisory Committee in 2000 to develop alternative policies to the 1995 Student Assignment Plan so as to comply with Proposition 209.

Thus, in 2002, the current Student Assignment Plan was implemented and retained many of the features of the 1995 plan. However, the most significant departure from the plan of 1995 rested essentially upon the evolving notion of the term “diversity.” In 1995, the BUSD ostensibly associated purely racially motivated policy responses with the term, and focused primarily on racial integration and racial diversity. Now, diversity includes not only race but also these other factors of parents’ income and parents’ education.

            The current plan and the 1995 plan both evolved out of one devised in the late 1960s: Beginning in 1968, the BUSD voluntarily initiated a process of integrating all district schools with the primary purpose of achieving racial integration. Using a “paired schools” method combined with “two-way busing,” the District transported students from mostly non-white West Berkeley to predominantly white East Berkeley for kindergarten through third grades.

            For grades four through six, the District simply did the reverse by transporting students from East Berkeley to West Berkeley to achieve a racial balance. The District additionally created two junior high schools for the purpose of integration. This constituted the original BUSD plan to eliminate de-facto school segregation. Likely to be ruled unlawful under Proposition 209 in today’s legal framework, according to the April 6 ruling, this original student assignment plan of 1968 appears to have evolved to such an extent so as to maintain its legality.

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