Court of Appeal Upholds Berkeley School Assignment Policy

The Court of Appeal has upheld Berkeley's school assignment policy against a challenge based on Prop. 209. Here is a link to the decision in American Civil Rights Foundation v. Berkeley Unified School District. Here's the takeaway quote: "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.”

The plaintiffs argued that the Berkeley policy violated Prop. 209 because it considered the racial makeup of the student's neighborhood, and therefore discriminated against a group on the basis of race. But the court held that Prop. 209 is violated only when an individual or group is disadvantaged because of their race. Since the student's own race was never considered, there was no violation.

The plaintiffs also argued that using the racial of the students' neighborhoods was an impermissible proxy for the race of the student. But the court held that such a claim could not succeed in a facial challenge, where the plaintiffs had to prove that the Berkeley policy could never be constitutionally applied: "ACRF next argues that the School District uses the diversity rating as a veiled substitute for a student’s race that does not show the precise race of a student but shows the “likely” race of a student. ACRF claims that a student from a neighborhood planning area with a diversity category of one is more likely to be a student of color than a student coming from a category three planning area. The claim is unsupported by the record on appeal. The elementary school student assignment plan, incorporated into the complaint, shows that a diversity category rating is derived by averaging three demographic factors, of which race is one. There is no indication that, in every case, a student from a category one planning area is more likely to be a student of color than is a student from a category three planning area. It appears mathematically possible that a category one planning area may have more White students than students of color depending on the area’s household income and adult education.

While it is conceivable, as the School District concedes, that some neighborhoods are so racially segregated that using demographic data could potentially serve as a proxy for a student’s race, that hypothetical possibility cannot sustain ACRF’s facial challenge to the constitutional validity of the district’s student assignment policy. On a facial challenge, we do not consider the policy’s application to the particular circumstances of an individual. “[O]ur task is to determine whether the [challenged policy] can constitutionally be applied.” ‘To support a determination of facial unconstitutionality, voiding the statute [or policy] as a whole, petitioners cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute . . . . Rather, petitioners must demonstrate that the act’s provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions.’ ” ACRF has not shown that the policy provisions challenged here inevitably pose a total and fatal conflict with section 31. (citations omitted).

This is an obviously important case, since it provides a blueprint for school districts that want to increase diversity without falling afoul of Prop. 209. Nevertheless, I doubt that the California Supreme Court will grant review, since the decision below is a plausible (and, I think, desirable) interpretation of Prop. 209.