Berkeley Scofflaws

California’s Proposition 209, which passed in 1996 and bars racial discrimination in in public education, employment, and contracting, has been interpreted by the courts to preclude taking race into account in assigning students to schools.

The Berkeley Unified School district begged to differ and refused to abandon its racial assignment policy. As a result it was sued in 2000 by the Pacific Legal Foundation because its policy “requires each school’s racial mix to come within five percent of the district-wide tally.”

In response, the

Berkeley Unified School District unveiled a new plan Wednesday for assigning students to elementary schools that supporters hailed for expanding diversity beyond race and critics blasted as a sitting duck for a legal challenge already mounted against the district.

If adopted by the school board, two new factors — parental income and education level — will be added to race in determining how students are placed in elementary schools.

The proposal, four years in the making, follows the lead of districts nationwide in using socioeconomic factors to achieve school diversity, but draws the line at race at a time when California courts have interpreted state law to forbid any consideration of race in public education.

“They’re fooling themselves if they think this thing is going to fly,” said Hastings Law Professor David Levine, who in 1999 won a federal court case that struck down a San Francisco school assignment plan that included racial quotas. “They’re just wasting everyone’s time and money.”

Maybe the mayor will stand in a schoolhouse door and, echoing another scofflaw, proclaim “Assignment by race now! Assignment by race tomorrow! Assignment by race forever!”