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School districts that attempt to use race a factor in assigning students to schools face legal challenges that go back to 1956 Brown v. Board decision. In California, Prop 209 further complicates the picture. Proposition 209 was a 1996 California ballot proposition which amended the state Constitution to prohibit public institutions from discriminating on the basis of race, sex, or ethnicity. The Pacific Legal Foundation sues school districts using Proposition 209 as their basis to challenge district plans. Some districts eventually settle like Capistrano Unified School District.

In Berkeley, the school board has been sued for the second time in three years and even won at the local level and that win is being appealed. In 2009, Berkeley won that appeal. In San Francisco, the school board met in multiple closed sessions to craft policy that would reintroduce race into school selection process. Then they intoduce the resolution at the same meeting where they eliminated the JROTC program. In 2008, a group supporting JROTC started a petition drive to place the matter on the ballot. After the advisory measure won the November, 2008 ballot, legislation was introduced was to restore the program. The San Francisco Board voted to restore JROTC in June 2009.

In 2006, The Supreme Court began reviewing the role of race for two cities: Seattle and Louisville in late 2006. San Francisco USD closely watched the developments from this Supreme Court case. In June, 2007, th Supreme Court stuck down both plans in Louisville and Seattle which drew reaction from the San Francisco and Berkeley school districts. In July, the New York Times examines San Francisco plan for dviversity using ecomonic indicators. In September, 2007, Los Angeles Unified faced a suit challenging the use of race for the magnet school admissions. But is "race" becoming obsolete in California? Gregory Rodriguez explores that question.

In Florida, a school district is sued for not providing unique set of programs to help black students. In this case, it is "opportunity" versus "outcome" that is being questioned.

In 2009, a California superintendent indicated that superintendent who are trying to closing the achievement gap are deluding themselves.

School district sued over racial policy

By Jill Tucker, San Francisco Chronicle, October 5, 2006

For the second time in three years, Berkeley school officials face a legal assault against the district's use of race in assigning students to schools.

The Pacific Legal Foundation filed a suit Wednesday to coincide with the 10th anniversary of Proposition 209, the voter-approved measure banning racial preferences in public university admissions and in state hiring.

The district won the first time, with an Alameda County Superior Court judge ruling the measure approved by voters in November 1996 didn't apply to Berkeley's policy.

The new case, also filed in Alameda County Superior Court, pits the nonprofit American Civil Rights Foundation against the district, school board and Superintendent Michele Lawrence. The foundation asserts that the district's policy violates the law despite its best intentions to integrate schools.

"Color-coding amounts to racial discrimination," said Paul Beard, a Pacific Legal Foundation attorney. "Telling students that race is what defines them is a harmful lesson for schools to teach and an illegal practice for them to follow."

Beard said the previous lawsuit was not appealed because the plaintiff -- a parent -- moved out of the district.

The lawsuit filed Wednesday is not a do-over of the previous case, Beard added. Since then, Berkeley has modified its school assignment system to include other factors besides race. That means this is a new suit with a new plaintiff against a new system, Beard added, albeit one still about race.

Berkeley's current system divides the city into three sections, each running from the Bay to the hills. Students are assigned to schools within their section based on a complicated formula that includes race, parent income and parent education level. Families can select up to three top school choices within their area. About 85 percent of families get their first choice, Lawrence said.

The goal is to make each school's student population reflect the overall racial makeup of the city, she said, adding that goal has been met. Within the district, 29 percent of students are white, 31 percent African American, 17 percent Hispanic, 7 percent Asian American and 15 percent a combination of others. "What we have found is our program is not only bringing kids of various races together, it also brings socio-economic levels together and children from various educational backgrounds together," Lawrence said, adding that it "creates a very healthy learning environment."

In the 2003 lawsuit, Judge James Richman sided with the district, saying Prop. 209 does not specifically prohibit voluntary desegregation plans or "race-conscious" school assignment systems.

"We've been monitoring Berkeley for some time now," Beard said. "It so happened we had the 10th anniversary in order to highlight there's still some work to be done," Beard said of the timing of the suit.

Berkeley is not alone, said Pacific Legal Foundation principal attorney Sharon Browne.

"We're still finding a lot of public officials who fail to follow Prop. 209 unless they're called to the carpet," she said, adding there are ongoing lawsuits against Los Angeles and Capistrano school districts. "Those are only the tips of the iceberg, we're sure," she said.

Within the next couple of months, San Francisco public schools could be among those using race to decide where students attend.

The school board is considering adding race into San Francisco's current assignment system, which takes family income and other factors into consideration.

The current system, which ceased using race in 1999, has dramatically increased segregation in city schools -- a situation the majority of school board members say must be addressed. Most of the seven current board members have said they don't see any other way to do that without including race in the assignment formula.

In the meantime, the U.S. Supreme Court is considering two cases out of Seattle and Louisville, Ky., addressing the use of race in assigning students. Districts across California and the nation are watching those cases, which revolve around discrimination and the constitutional issue of equal protection.

Oral arguments in those cases will be heard Dec. 4 with a decision sometime in the spring.

Berkeley schools enrollment policy, court says Race OK as Factor

Bob Egelko, San Francisco Chronicle, March 18, 2009

A state appeals court breathed new life Tuesday into campus integration efforts, ruling that Berkeley does not violate California's ban on racial preferences when it considers the makeup of students' neighborhoods in deciding where they will go to school.

Berkeley's policy "does not show partiality, prejudice or preference to any student on the basis of that student's race," said the First District Court of Appeal in San Francisco. "All students in a given residential area are treated equally."

The ruling is the first by an appellate court on a school district's voluntary integration plan since California voters passed Proposition 209 in 1996, prohibiting preferences by race or sex in state and local education, employment and contracting.

The case could be heading for the state Supreme Court for a decision on whether Prop. 209 forbids any consideration of race in government programs. The court interpreted the initiative broadly in a 2000 contracting case, its only ruling on Prop. 209, but did not say whether it prohibited all government programs aimed at promoting racial diversity.

Alan Foutz, a Pacific Legal Foundation attorney representing a nonprofit organization that challenged the Berkeley program, said his client would probably appeal to the state Supreme Court, though no final decision has been made. He said the ruling "undermined (Prop. 209's) mandate for colorblind educational policy by allowing districts to continue using race in (their) student assignment decisions."

Benjamin Au, a lawyer for the school district, said he hopes the ruling "will help give a clear path for schools that want to achieve diversity and fulfill their constitutional obligations for integrated schools." The Berkeley program could be a model for the nation, he said.

The 9,000-student Berkeley Unified School District has taken measures since 1968 to promote racial balance between schools in the largely minority flatlands and the mostly white hillside and UC Berkeley neighborhoods.

Under a plan the district enacted in 2004, each area of four to eight blocks is given a diversity rating based on racial breakdown and parents' income and educational levels. The district uses that rating in enrollment decisions at the city's 11 elementary schools and in special academic programs at Berkeley High School.

For example, when considering enrollment at a school that has a high ratio of white, well-educated and wealthy families, the district gives preference to students from other types of neighborhoods. The district does not consider specific students' race or their parents' income or educational levels.

That means no student is given preference, or suffers discrimination, because of his or her race, the appeals court said in upholding a judge's April 2007 decision in favor of the district.

"Using neighborhood demographics when assigning students to schools is not discriminatory," Justice Patricia Sepulveda said in the 3-0 ruling. "The challenged policy does not use racial classifications; in fact, it does not consider an individual student's race at all."

School board seeking an assigning policy that factors in race

Plan developed in closed sessions draws criticism

By Jill Tucker, San Francisco Chronicle, November 12, 2006

The San Francisco school board will introduce a resolution Tuesday that makes race a factor in deciding what school a child will attend, a proposed policy the seven-member board crafted -- perhaps illegally -- behind closed doors.

The resolution asks that district staff include race and ethnicity in the student assignment process "in a narrowly tailored manner" starting with the 2008-09 school year.

Proponents see this as a way to diversify San Francisco's increasingly segregated schools.

Opponents say such a move would violate Proposition 209, the state's ban on racial preference in state and local government. In addition, some legal experts say that the board's closed sessions may have been illegal.

No decision will be made on Tuesday. The item is up for a first review with a special meeting to include public comment on Nov. 28. A final vote could come later that evening or in the coming weeks.

School board member Mark Sanchez said the phrase "narrowly tailored" means race would not be a primary consideration in the process, but perhaps a tie-breaker in assigning students to schools.

From 1982 to 1999, a federal court order mandated the use of race in assigning students to the city's public schools. In 1994, Chinese families sued the district to eliminate the race factor, which they said kept their children out of preferred schools.

Following a settlement, the San Francisco Unified School District implemented a complicated formula using family income and other factors to determine which students would be placed in the most popular schools. That process has led to increased segregation especially in low-income areas.

Board President Norman Yee said it's not clear whether a new policy using race would be limited to schools with too many applicants or apply to all schools with significant percentages of a particular ethnic group.

Ultimately, Yee said, the question is this: "How do we bring equity into our system so all kids get a quality education?"

Opponents say using race is not the answer.

Any such system would violate California's Prop. 209, according to David Levine, the attorney who helped sue the district in the 1990s to stop the use of race in student assignments.

Since April, the board has met several times in closed-door sessions to discuss ways to revamp the system. The most recent meeting was Wednesday. One day later, the resolution appeared on the next meeting's agenda.

The district's chief legal counsel, David Campos, said closed-door sessions are permitted under state law and allow the board to discuss legal strategy and issues related to any new policy. The district and board would almost certainly face lawsuits if race is added back into to the mix.

Others say the closed meetings violated the Brown Act, the state law governing access to public meetings.

State law allows elected officials to exclude the public when seeking legal advice about potential litigation, but the board went way beyond that, said Peter Scheer, executive director of the California First Amendment Coalition.

Board members acknowledged discussing and developing the ideas included in the resolution during the closed sessions.

Scheer sees that as a "fairly significant abuse of the authority that the Brown Act gives them to have closed sessions."

"It seems to me that they are using what was intended as a very narrow exception (to open meetings) as a pretext for making policy." In addition, he said, the board was "doing all the hard legislative work -- that they're supposed to do in public -- behind closed doors."

Yet Campos said that during closed session there is nothing inappropriate about the board discussing how one policy approach might be a better legal option than another and then telling staff to draft the one the board chose.

However, "I can understand that people can disagree on this," he said.

In addition to adding race to the assignment formula, the resolution requires district staff to look at ways to increase diversity at Lowell High School and the School of the Arts. A "working group" would then provide recommendations for guidelines that would go into effect for the freshman class of 2008-09. Both high schools now have competitive entrance requirements.

In the past, various proposals to increase diversity -- in particular, admitting more African American and Latino students -- at Lowell and School of the Arts -- have been met with strong and vocal opposition. These opponents acknowledge that diversity is a noble goal, but they don't want to see admission standards changed.

"People are going to scream," board member Sanchez acknowledged Friday.

By Saturday, they were.

"Every decade or so someone comes along and thinks they need to fix Lowell," said Lowell parent Dana Woldow, her voice full of anger.

Woldow said 15 other high schools in the city offer a range of academic opportunities.

"We don't need another Washington or another Lincoln or another Balboa," she added.

The resolution also states that the board values parent choice in the assignment process and asks staff to work on increasing the number of magnet programs to help diversify schools.

Sanchez said the resolution, if passed, could be nullified depending on a U.S. Supreme Court decision expected this spring on the use of race in deciding student assignment in schools in Louisville, Ky., and Seattle.

He said the board was aware of all possibilities.

If the court ultimately prohibits the use of race, "We're not going to do it," he said.

And if the court permits the use of race?

"We most likely will be sued under (Prop.) 209," Sanchez said.

School board votes to dump JROTC program

By Jill Tucker, San Francisco Chronicle, November 15, 2006

After 90 years in San Francisco high schools, the Junior Reserve Officers' Training Corps must go, the San Francisco school board decided Tuesday night.

The Board of Education voted 4-2 to eliminate the popular program, phasing it out over two years.

Dozens of JROTC cadets at the board meeting burst into tears or covered their faces after the votes were cast.

"We're really shocked,'' said fourth-year Cadet Eric Chu, a senior at Lowell High School, his eyes filling with tears. "It provided me with a place to go."

The proposal approved by the board also creates a task force to develop alternatives to the program that will be tried out next year at various high schools.

The board's decision was loudly applauded by opponents of the program.

Their position was summed up by a former teacher, Nancy Mancias, who said, "We need to teach a curriculum of peace."

The board's move to dismantle the popular program was led by board members Dan Kelly and Mark Sanchez with support from Sarah Lipson and Eric Mar. Casting votes against it were Jill Wynns and Norman Yee. Board member Eddie Chin was absent.

"I think people should not despair too much," Sanchez said. "I think now the work begins -- to work within the community to develop new programs that will fulfill the needs of our students."

About 1,600 San Francisco students participate in JROTC at seven high schools across the district.

Opponents said the armed forces should have no place in public schools, and the military's discriminatory stance on gays makes the presence of JROTC unacceptable.

"We don't want the military ruining our civilian institutions," said Sandra Schwartz of the American Friends Service Committee, an organization actively opposing JROTC nationwide. "In a healthy democracy ... you contain the military. You must contain the military."

Students, parents and school staff from each of the seven high schools converged outside the school board meeting carrying signs and waving at cars, some of which honked in support.

At least 100 cadets edged into Franklin Street waving their signs before being pushed back to the sidewalk by their ROTC instructors.

Yet, in the end, the effort -- one of several rallies in the last several weeks -- fell on deaf ears.

"This is where the kids feel safe, the one place they feel safe," Robert Powell, a JROTC instructor at Lincoln High School and a retired Army lieutenant colonel, said earlier in the evening. "You're going to take that away from them?"

Opponents acknowledged the program is popular and even helps some students stay in school and out of trouble.

Yet they also said the program exists to lure students to sign up for the armed forces.

"It's basically a branding program, or a recruiting program for the military," Kelly said before the meeting.

The school district and the military share the $1.6 million annual cost of the program, with the military paying $586,000, or half the salaries of 15 instructors -- all of whom are retired military personnel. The district pays the other half of salaries and $394,000 in benefits.

Earlier, Mayor Gavin Newsom weighed in on the debate, chastising the board for the effort to eliminate JROTC.

"The move sends the wrong message," he said. "It's important for the city not to be identified with disrespecting the sacrifice of men and women in uniform."

Students in the program receive physical education or elective credits required for graduation.

A budget analysis found that the district could hire nine teachers with the money the district now spends on JROTC -- enough to cover the gym and elective courses for the 1,600 students should the program be eliminated.

But there wouldn't be money to create an alternative program serving that many students, Wynns said.

"I think the people who want to get rid of it have a responsibility to look at how we're going to pay for that and what we're going to do to replace it," she added.

Newsom also said he believed the vote would push more city residents away from the public schools.

"You think this is going to help keep families in San Francisco?" the mayor added. "No. It's going to hurt."

On other matters, the board introduced a resolution that makes race a factor in deciding what school a child will attend starting with the 2008-09 school year. No action was taken.

Group begins signature drive to retain JROTC

By Jill Tucker, San Francisco Chronicle, June 7, 2008

A group fighting to keep the Junior Reserve Officers' Training Corps in San Francisco high schools is beginning a campaign to take the battle to city voters in November.

Friends of JROTC, a volunteer group led by parents, will launch a petition drive Saturday that aims to qualify a ballot measure asking voters to express support for the military-sponsored program.

The school board voted in 2006 to phase out the seven JROTC programs in city high schools by this month. A separate vote in December allowed the program to continue until June 2009 while the district identified and piloted a replacement program.

The proposed ballot measure would be advisory only, meaning it couldn't save the district's JROTC program, but it would show school board members how the majority of San Franciscans feel about the program, said Mike Bernick, the campaign's co-chair.

Bernick, an attorney and former director of California's labor department, said the effort "reflects really the outpouring of support we've found among San Franciscans across the political spectrum."

The group will kick off the petition drive at 9 a.m. Saturday at the Taraval Police Station community room. To qualify for the ballot, the group must submit about 7,200 signatures by July 7, Bernick said. The group has collected about 1,000 signatures already.

Four school board seats are up for election in November, including the seats of Eric Mar and Mark Sanchez, who oppose the JROTC program and are running for the county Board of Supervisors.

Jill Wynns and Norman Yee, who voted against eliminating the program two years ago, are expected to run for re-election.

About 1,200 students are enrolled in the JROTC program this year, down from about 1,600 in 2006, said Robert Powell, a JROTC instructor at Lincoln High School.

"It's not that kids are losing interest," Powell said. "It's because they don't know whether it's going to be around or not."

Sanchez, who led the effort to eliminate JROTC, has said he opposes the program because of its ties to the military, which discriminates against gays. Other opponents have argued that the program has no place in public schools because they say it's a recruitment tool for the military.

Sanchez said he doesn't think the proposed ballot measure would pass because it's not a "salient issue for voters."

JROTC has a 90-year history in San Francisco schools and has been popular among students looking for a leadership program and, in some cases, as an alternative to required physical education classes. The program currently gives PE credit.

The school board Curriculum Committee is scheduled Monday to consider alternative programs that could replace JROTC. The committee is expected to discuss altering current courses, including ethnic studies, to include more leadership training.

Fiona Ma plans end-around bill on JROTC issue

By Jill Tucker, San Francisco Chronicle, February 5, 2009

Assemblywoman Fiona Ma, D-San Francisco, is expected to announce her bill at a press conference at Lowell High School today.

On split vote in November 2006, the school board decided to ax the program, arguing it is operated by the U.S. military, which not only seeks new recruits, but bars gays and lesbians from openly serving. The issue has been among the most controversial and divisive education issues in the last few years.

The program is scheduled to end in June.

Ma said she was motivated to introduce the bill by voter passage in November of Proposition V, an advisory measure urging retention of the JROTC program. In addition, Ma said, she has seen benefits from the course - leadership training to minorities and women, opportunities for teamwork, and a support network to students.

"I've been to many of the programs over the years," she said. "I've seen the benefits of the programs ... I've met the kids."

She also noted that five of San Francisco's seven high schools with JROTC are in her district.

JROTC is a federally sponsored program, paying half the salaries of the instructors, who are retired from the military.

It is also a voluntary program for districts - but Ma's legislation would require San Francisco - and only San Francisco - to keep it.

"The voters have spoken," said Ma, a former San Francisco supervisor.

But then, so had San Francisco's elected school board officials. Ma's move is being questioned, even by some who want to see JROTC stay.

"For me this sets a precedent," said school board member Hydra Mendoza. "Do the state people now tell the district, which has made a local decision, right wrong or indifferent ... that they have to change a policy?"

Legislators often given deference to each other's district-only bills, but Ma's measure - expected to be introduced as an urgent bill - would require two-thirds support.

Former school board member Eric Mar, now a city supervisor and longtime opponent of JROTC, said he questioned the legality of circumventing local control.

"That doesn't sound right to me," he said.

School board member Sandra Fewer, who also opposes JROTC, said she wished Ma had consulted with her and the board before taking the issue to Sacramento.

"The school district is our jurisdiction," Fewer said.

Several supporters of the program said they initially thought Ma's legislation would only restore the physical education credit to the program - making it more palatable to the school board.

Without receiving PE credit, many students don't have time in their schedule to take the elective JROTC courses. After the school board eliminated gym credit for the military classes, enrollment dropped this year to about 500 students, down from about 1,500 the previous year.

Ma is requesting that the bill - which also restores the PE credit - be put on the legislative fast track, given the impending demise of the program.

Local JROTC instructors have said that if the district loses the program, it will be difficult to bring it back because there is a backlog of high schools across the country waiting to get federal funding for the program.

S.F. school board restores JROTC program

By Jill Tucker, San Francisco Chronicle, June 9, 2009

The board voted 4-3 to allow the JROTC program to satisfy physical education requirements - something needed to maintain enrollment numbers that financially justify the program at seven district high schools.

The measure gives JROTC students the option to earn P.E. credit through independent study.

The vote is the latest in a nearly three-year battle over the fate of the military leadership training program, starting with the 2006 vote to phase it out and another in 2008 to stop giving participating students P.E. credit.

For years, students took JROTC in lieu of gym class, exempting them from a requirement to take two years of P.E. The board stopped that practice a year ago, saying it was unclear whether the courses met state physical education requirements, making the district vulnerable to a lawsuit.

JROTC enrollment dropped to 500 this year, down from about 1,600 students the year before. Students said they didn't have enough time in their schedules to take both P.E. and JROTC.

A dozen JROTC students spoke during the meeting, urging the board to adopt the resolution.

"Without (JROTC), I wouldn't be as physically fit as I am," said Lowell High School sophomore Richard Kuan. "I think this program is working."

California education officials have said it's up to local districts to decide whether to allow other courses like JROTC or marching band to fulfill P.E. requirements.

Board member Sandra Fewer, who has opposed JROTC, said she didn't want to see the quality of physical education suffer.

"I just hear that maybe P.E. isn't that important," she said. "We don't exempt other subjects like that."

The independent study option will require students and their JROTC teacher to document time spent on physical activity and instruction.

"I am going to hold JROTC to the fire to make sure the standards are the same as the P.E. standards," said board member Hydra Mendoza.

A majority of school districts in California offering JROTC allow the military course to fulfill the required two years of physical education.

State law requires those enrolled in P.E. to have 400 minutes of class time every 10 days, but no specific code or standard addresses how many minutes must or should be spent on instruction or physical activity.

The school board voted to restore the military program in early May, weeks before it was to expire. Yet, without the P.E. credit, it's unclear whether enough students would have taken it for the district and federal government to justify the split $1.5 million program cost.

"This (resolution) gives them the ability to get a P.E. credit and take an elective at the same time," said Balboa High School JROTC instructor Gerry Paratore. "I think the enrollment will come up."

Cases retread Brown vs. Board of Education steps

The Supreme Court takes up two school integration disputes that could have far-reaching effects

By David G. Savage, Los Angeles Times, December 4, 2006

WASHINGTON  For the first time in a decade, the Supreme Court will revisit the legacy of a landmark: the Brown vs. Board of Education decision of 1954 that declared unconstitutional the racial segregation of public schools.

Separate schools for black and white children are "inherently unequal," Chief Justice Earl Warren said in an opinion that helped launch the civil rights movement.

State-enforced segregation laws are long gone, but for school officials today, a key question remains: Did the historic decision commit them to a policy of seeking integrated schools, or did it tell them not to assign students to a school based on their race?

Today, lawyers in a pair of integration cases will debate whether school boards may use racial guidelines to assign students. And both sides will rely on the Brown decision to make their case.

The outcome could affect hundreds of school systems across the nation, including the Los Angeles Unified School District.

With the arrival of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., civil rights lawyers believe there may be a five-member majority determined to strike down race-based integration programs.

In Seattle, the school board adopted a policy  now suspended  that gave "nonwhite" students an edge if they sought to enroll in a popular, mostly white high school. In Jefferson County, Ky., which includes Louisville, the school district said the black student body at each elementary school should range from 15% to 50%.

In both cities, several white parents sued to have the plans declared unconstitutional after their children were barred from enrolling in the school of their choice because of their race. Though they lost in the lower courts, the Supreme Court voted in June to hear their appeals, leading many to predict the justices are poised to outlaw "racial balancing" in the public schools.

"At its core, the issue here is the promise made 52 years ago in Brown vs. Board of Education," said Theodore Shaw, president of the NAACP Legal Defense Fund, which won the ruling that struck down racial segregation in the South. "Mandatory desegregation is now a thing of the past. All that's left is voluntary desegregation, and now that is being challenged."

Shaw said school officials should be lauded for their efforts to achieve integration. He said he was particularly troubled by "the ideology that equates any race consciousness with racial discrimination."

Domino effect

Bush administration lawyers, who joined the case on the side of the parents, say the Brown decision sought to move the nation toward a color-blind policy. They say school officials may not open or close the door to particular students solely because of their race. In short, race-based decisions are racial discrimination, even if the officials are pursing a laudable goal, they say.

"The promise of this court's landmark decision in Brown  was to achieve a system of determining admission to the public schools on a nonracial basis," U.S. Solicitor General Paul D. Clement wrote in his brief to the court. "Race-based school assignment does not advance that objective."

A ruling in favor of the parents could have broad effect. Hundreds of school districts across the nation are said to use racial guidelines in at least some of their schools.

About 54,000 students in Los Angeles Unified are enrolled in magnet schools, where spaces are allocated based on racial guidelines. An additional 3,500 students choose to be bused to another school under a second program that encourages integration. Both programs were adopted in 1981 after court-ordered busing came to an end.

Last year, these programs came under challenge in a lawsuit filed in the state courts. Pacific Legal Foundation sued, alleging the programs violated Proposition 209, the 1996 voter initiative that forbids state and local governments from giving "preferential treatment" to any person because of race.

A U.S. Supreme Court ruling striking down the integration policies in Seattle and Louisville could knock down those in Los Angeles as well.

"Our program is at risk. It is expressly race-based," said Kevin S. Reed, general counsel for Los Angeles Unified. "The program is working very well."

The district filed its own brief with the Supreme Court, urging the justices to uphold voluntary integration programs. Loss of the magnet program would be "devastating," its lawyers said. "Nearly 54,000 magnet students would be returned to their home schools. For the majority of those students, that would mean leaving a desegregated school and returning to a school segregated by the residential patterns" within the city of Los Angeles, they said.

But such a dire outcome is not certain, even if the court does rule for the parents in Seattle and Louisville. They are objecting because their children were turned away from a nearby school because of their race. A voluntary busing program that moved children from the city to a suburb, or from a low-income neighborhood to a more affluent one, would not be affected by a ruling striking "race-based assignment" policies.

Nonetheless, the lawyers who are challenging the school integration policies are confident the Supreme Court will agree with them.

Since 1990, the justices have insisted the government may not use "racial classifications" when awarding jobs, contracts or college scholarships. They also have voided congressional districts that shifted black voters with the aim of electing a black candidate. Last year, the court overturned a California prison policy that separated new inmates based on their race.

O'Connor out, Alito in

There was one exception to this trend. In 2003, the court upheld an admissions policy at the University of Michigan Law School that gave an edge to black applicants. Speaking for a 5-4 majority, Justice Sandra Day O'Connor said race-based, affirmative-action rules for colleges could be justified as the only way to obtain diversity in higher education.

But O'Connor has since retired from the court.

And last month, Michigan voters essentially overturned the university's policy and outlawed "preferential treatment" based on race.

Now that Alito has taken O'Connor's seat, most conservatives are predicting a majority will vote to strike down school assignment policies based on race.

"I think the court will reject these programs and say this kind of racial counting and sorting doesn't make sense in 2006," said lawyer Roger Clegg, president of the Center for Equal Opportunity, a Virginia group that promotes "colorblind public policies."

Harry Korrell, the lawyer for the Seattle parents, also argues that the traditional black-and-white view of race is outdated in a racially diverse West Coast city. The race-based integration policy for Seattle's high schools resulted at most in "trivial changes in pigmentation diversity at a few already diverse schools," he said.

But the minimal impact of these policies could cut the other way.

In a widely quoted concurring opinion, Judge Alex Kozinski of the U.S. 9th Circuit Court of Appeals said Seattle's voluntary integration policy could be upheld because it did not involve a "racial stigma" or a preference for one race over the over. It "gives the American melting pot a stir without benefiting or burdening any particular group," Kozinski wrote.

Kozinski, an appointee of President Reagan, is also a former clerk to Justice Anthony M. Kennedy, the centrist who may well hold the deciding vote.

A decision is unlikely before the spring.

S.F. board watches Supreme Court carefully

INTEGRATION: Decision could prohibit use of race as school enrollment factor

By Jill Tucker, San Francisco Chronicle, December 4, 2006

For years, San Francisco schools have been on a roller-coaster ride of lawsuits, court orders and desegregation efforts -- a history lesson that local educators say the U.S. Supreme Court should consider as it determines whether race should be used in assigning students to public schools.

A legal brief filed by San Francisco urges the high court to allow the use of race when it rules on integration cases out of Seattle and Louisville, Ky., which will be argued today.

The brief notes that San Francisco had integrated schools when it operated under a 1983 court order that imposed racial quotas. When race was pulled from the equation as part of a legal settlement in 1999, enrollment figures show that schools rapidly resegregated.

"It has just not worked," said the district's general counsel, David Campos. "We are sort of the perfect example of why race is needed."

San Francisco school board members are poised to bring race back to the school assignment process.

Yet, if the Supreme Court rules against the use of race, it appears that effort would be squashed.

"If the Supreme Court comes out with a very clear decision and follows the arguments that we are making -- that race can never be a compelling state interest -- that puts the nail in the coffin," said Sharon Browne, a principal attorney with the Sacramento-based Pacific Legal Foundation and a co-counsel in the case against Seattle.

San Francisco school board member Dan Kelly, however, said it's possible a ruling denying race as a consideration would be limited in scope and would apply only to Seattle and Louisville, leaving the door open for other districts to use race depending on specific circumstances.

And if, in a third scenario, the court allows the use of race in assigning students to schools, it is likely San Francisco board members will follow suit -- no doubt encountering an uphill battle legally and politically.

Many parents across the district want choice and access to neighborhood schools. They don't want their children, on the basis of ethnicity, to ride buses across town to attend a school not on their preferred list.

Opponents of race-based assignment say that not only is such a system inconvenient, it's also against state law.

California's Proposition 209, passed by voters in 1996, bans racial preference in state and local government.

Yet local school board members say they believe there's room in the state law to address the increased segregation in the city's schools, adding that they feel compelled to do so, despite a practically inevitable lawsuit.

Teacher Bo DeAvila remembers the students who attended San Francisco's Horace Mann Middle School a decade ago. The children were as diverse as the city itself.

"It was so rich and so exciting," the math and science teacher said.

Almost overnight, that changed.

In 1998, the last year students were assigned to schools under the 1983 court order, 38 percent of Horace Mann's students were Latino. The next year, that number rose to 47 percent and then 58 percent the next. Today, Latino students make up nearly 80 percent of the school's enrollment. (Districtwide, data show, Latino student enrollment was about 22 percent in the 2005-06 school year.)

Three doors down from DeAvila's math and science classroom in the Mission District school, social studies teacher Donna Amador said she wants to see students assigned by race again, a practice that was in place when her children were in school more than a decade ago.

"Each classroom needs to have lots of different voices," she said. "We don't need just one voice."

In 1983, as today, San Francisco's schools were effectively segregated. The 1983 federal court order for the city mandated the use of race in assigning students to address the lack of diversity, saying no more than 45 percent of one race could make up the enrollment of any public school.

But in 1994, Chinese American families sued the district to eliminate the race factor, which they said kept their children out of preferred schools solely because of their race.

That case was settled in 1999, and the district created a complicated formula using family income and other factors to determine which students would be placed in the most popular schools. That system is still in place.

Last year, in 49 of the district's 104 schools, a single ethnic group exceeded 45 percent of overall enrollment; in 22 schools, more than 60 percent of students were of one race.

By comparison, in 1997, 27 schools exceeded the 45 percent cap, with only one school exceeding 50 percent enrollment by a single racial group.

District officials believe race has to be part of the equation again.

"I think that it's a devastating thing to public schools to be trying to educate kids in isolation from each other," board member Kelly said.

Regardless of the outcome of the Supreme Court cases, Browne of the Pacific Legal Foundation said she is prepared to sue San Francisco if the district decides to bring back race. The foundation sent the district a Nov. 13 letter urging board members to retain a race-neutral system.

"Prop. 209 prohibits the state, including school districts, from discriminating against or granting preferential treatment to any individual or group on the basis of race or ethnicity," the letter said.

Campos, the district's lawyer, said a Supreme Court decision could bolster the district's arguments of a compelling need to address segregation and the disparity of educational opportunity that often follows.

"This," he said, "is a seminal case for all school districts that care about diversity and equal opportunity for all students."

San Francisco Board Member Eric Mar Blog Post on Pending Supreme Court Review San Francisco Board Member Eric Mar Blog Post on San Francisco Schools Desegregation Order Ends - Racial and Socio-Economic Inequality Continues

Capistrano Unified School District Settles

Pacfici Legal Foundation Website, Press Release, December 2006

San Juan Capistrano, CA; November 27, 2006: The Capistrano Unified School District will stop using students race to determine where they will go to school, under a comprehensive settlement approved by the Board of Trustees Monday night.

The settlement comes in response to a lawsuit brought by Pacific Legal Foundation, which challenged the Districts policy of utilizing race as a factor when drawing attendance boundaries, along with the current attendance boundaries plan created pursuant to that policy. PLF filed the legal action on behalf of Neighborhood Schools For Our Kids, a coalition of parents and taxpayers in the District.

Unfinished Business

Looking at the Legacy of Brown V. Board of Education

By Doug Herndon, CSBA Wesbite, November, 2006

Long before the celebrations began commemorating the 50th anniversary of the Brown v. Board decision, researchers at The Harvard Civil Rights Project documented an alarming pattern of resegregation in Americas public schools. In Californias public schools, radical demographic shifts have redefined the term minority. Still, research from the University of California at Los Angeles indicates that more than 60 percent of white students attend majority-white schools and the average Latino or African American student goes to a school where about 80 percent of the student population is not white. The Harvard study was not the firstnor the lastbut to date, virtually all of the research leads to one conclusion: While tremendous social and educational strides have been made since the 1954 Supreme Court decision, the legacy of Brown is hazy at best.

The Brown v. Board of Education of Topeka decision has become so integral to the discussion of race relations in the United States that its success is impossible to gauge based on the status of educational equity alone. Leading up to the case, an undercurrent of culturally intolerant legal precedent clashed with the epiphany of indignation expressed by many African-American and Latino World War II veterans who came home ready to inhabit the rights they had risked their lives to defend. On the surface, the nation had grown complacent, lulled by a booming postwar economy and the comfort of a rigid social order. But when Chief Justice Earl Warren handed down a unanimous Supreme Court decision declaring separate educational facilities unequal and unacceptable, that calm cracked wide open and let loose one of the most turbulent social storms the nation has yet endured. Americans reacted with unbridled relief and joyas well as with shocking violence and unrepentant defiance. It was at once the nations brightest moment and its darkest.

The so-called Brown II decision that followed a year later is often maligned for its regressive effect on the implementation of the original decision. In calling for communities to integrate with all deliberate speedit actually required no specific timeline for carrying out that order and allowed those who didnt support the decision to relocate and reorganize their communities so that integration was geographically inconvenient. The colossal failure of busing as a remedy only exacerbated all the attendant problems, creating more friction and animosity in communities all across the country. At the end of the day, African-Americans and other minorities still lived very segregated lives, and attended inferior schools with inferior facilities, teachers and instructional materials.

A question of equity

Starting as they did with such an enormous cultural handicap, the academic achievement of African-American students has obviously skyrocketed since the early 20th century. But minority students only gained so much ground on their white peers before those gains sputtered to a disappointing and somewhat mysterious halt. That illusive gap in achievement between the races is now known as the Achievement Gapa new name for an old problem and the latest incarnation of the struggle for educational equity.

EdSource, a non-profit, non-partisan education think tank based in the San Francisco Bay Area, reports that 82 percent of white students and 76 percent of Asian students passed the English/language arts portion of Californias High School Exit Exam in 2002, while only 50 percent of African-Americans, 48 percent of Latinos and 63 percent of Native Americans passed. In mathematics, the news was worse: Only 24 percent of African-Americans, 25 percent of Latinos and 42 percent of Native Americans passed, compared to 64 percent of whites and 70 percent of Asian American students.

School boards all across the country are taking note of the gap and beginning to focus on possible solutions.

In the past we were content to look at averagesaverages always improved, says Dan Walden a past president of the California School Boards Association and a school Board member in the Bay Areas Walnut Creek. So we thought we were doing a good job educating children. But now we have a greater ability to disaggregate the data we look at and to isolate the achievement of those subgroups. Were increasingly coming to grips with the understanding that we are not providing the same high-quality education to all children. Where we need to go now as board members and communities is to learn more about how, within our roles, we can make the changes necessary to raise the achievement of the lower performing groups faster.

What may be most vexing of all to educators like Walden is the fact that many of the reasons often cited for the continuing gap in standardized test scores are the same as those offered by educational equity advocates since well before the Brown case: poor facilities, inadequate instructional materials, underqualified teachers, and high staff turnover.

John Rogers is on the School of Education faculty at the University of California at Los Angeles. As a member of its Institute for Democracy, Education and Access, Rogers has done extensive research on the achievement gap and the resegregation taking place in California schools. Hes developed an index of critical opportunity problems that offers some distressing insights into the issues faced by schools and communities where the Achievement Gap is most visible. The problems of under-qualified teachers, high staff turnover and inadequate instructional materials and facilities are certainly not new to the discussion, but the relationship between the number of those problems a school has and the degree of segregation it manifests is enlightening.

What we found is that the schools that have at least three of those four problems are disproportionately schools that serve 90-100 percent non-white students, says Rogers. Only 7 percent of majority-white schools have at least three of those problems. Further, Rogers found that no majority-white school suffers from all four opportunity problems. So students attending schools where 90 percent or more of their schoolmates are non-white are 6 times as likely to experience serious opportunity problems than students in schools with majority-white populations.

Is celebration really in order?

Its important to remember that racial integration was never the goal of the parent-plaintiffs represented in the five lawsuits the Supreme Court combined to become Brown v. Board of Education of Topeka (see Speak Up, page 9). Neither was it the goal of the young Thurgood Marshall who led the legal effort for the National Association for the Advancement of Colored People. The goal was educational equity among the racesa right Marshall believed was absolutely guaranteed by the 14th Amendments promise of equal protection under the law for all Americans. The Brown plaintiffs stood up to demand the same education for their children that the white children in their community were offered. Marshall and the NAACP stood up to demand the same thing for African-American children all across the country.

A separate but equal California

In California, there is a tendency to remove ourselves somewhat from the discussion of segregation. Whether thats due to a misinformed notion that California was never legally segregated or because the states intense diversity leads us to think that weve transcended the issue, its important to note that the judicial history of California is as fraught with racist overtones as any stateincluding those in the deep South that tend to shoulder most of the cultural blame for segregation. In its defense, California did manage to settle the issue of segregation in its schools eight years before the Brown decision was handed down. In fact, the case that struck down segregation in California, Mendez v. Westminster School District, was arguably one of the most significant influences in the outcome of the Brown case itself.

By 1870just 21 years after California entered the union as a free state for former slaves  its Education Code stipulated that the education of children of African descent, and Indian children, shall be provided for in separate schools.

Four years later, when 11-year-old Mary Flood was denied access to the San Francisco public school nearest her home because of her African-American heritage, her parents sued the principal of the school. The California Supreme Court sided with the principal, setting the precedent that, so long as they are educated upon equal terms students of color may indeed be kept separated from the white community in California public schools. With that, California was on the books with its own separate but equal clause22 years before the U.S. Supreme Court handed down its notorious Plessy v. Ferguson opinion establishing the same precedent on a national level.

It was the Plessy decision that repeatedly blocked Marshall and the NAACP from success in the courts. In case after case, year after year, the decisions of judgeseven those claiming sympathy for Marshalls causecited an obligation to Plessy.

Ironically, Plessy had nothing to do with educationneither, in fact, did it establish the practice of separate but equal. Homer Plessy might best be characterized as the Rosa Parks of his timehe sued the state of Louisiana after being arrested for refusing to sit in the colored car of a train. The court decision that bears his name simply upheld the Louisiana statute that provided for separate railway carriages for the white and colored races. In delivering that opinion, the court cited Californias Ward v. Flood along with similarly resolved cases in many other states. Even a cursory look at early 20th century case law makes it clear that once Plessy was established, attacks on segregation via the 14th Amendments guarantee of equal protection had virtually no chance of success. But just as Marshalls failure to overcome Plessy defined the early part of his effort, it would also be the case that most clearly defined the legacy of his success in Brown v. Board.

As Marshall searched for the cases and plaintiffs with the greatest chance of success in enforcing educational equity, he served as counsel or consultant to many of the relevant cases of the day. In the Brown case, Marshall argued on behalf of several African-American families whose children were denied access to nearby public schools and forced to ride a bus for as many as two hours each day. But his journey started long before he met the Brown plaintiffs. In fact, perhaps one of the more fateful stops along the way was his involvement with a similar case in the Westminster School District in Orange County, California.

The California connection

According to UCLAs Rogers, many California schools were well integrated in the late 40s, but Westminsterhome to a sizable Mexican communitywas not. When Gonzalo Mendez tried to enroll his daughter Sylvia at the public school nearest their home, the school at first agreed to enroll all three of the Mendez children. But when Mendez found out the same offer would not be extended to the rest of the Latino community, he refused and filed a class action suit with four other families from four other Orange County districtsdeclaring that the suit represented 5,000 members of the Mexican American community. Marshall filed a friend of the court brief in the case, using arguments he would later use in Brown. Initially, a lower court sided with the districts, but upon appeal Mendez emerged victorious with a decision that read, in part:

The equal protection of the laws pertaining to the public school system in California is not provided by furnishing in separate schools the same technical facilities, text books and courses of instruction to children of Mexican ancestry that are available to the other public school children regardless of their ancestry. A paramount requisite in the American system of public education is social equality. It must be open to all children by unified school association regardless of lineage.

Not only did the Mendez case provide a testing ground for Marshalls arguments in Brown, it inspired Californias then-Gov. Earl Warren to sign an executive order making segregation in California public schools illegalthats the same Earl Warren who was soon thereafter appointed Chief Justice of the U.S. Supreme Court and who later wrote the historic opinion in the Brown case.

A test of time

Was Brown v. Board a success? Did it accomplish all it set out to accomplish? It seems those are two very different questions. In terms of the American civil rights movement, there can be no denying that Brown was a monumental successa watershed victory for all Americans who have an interest in preserving their own civil rights. Just as Plessy v. Ferguson wielded such influence in the American judicial system during the first half of the century, Brown dominated the latter half. And as there is no clear end to this struggle in sight, it will undoubtedly continue to hold sway in the courts of the 21st century.

Today, California educators wrestle with cases like Williams v. State of California or Ho v. San Francisco Unified School District. Plaintiffs in the Williams case, represented by the American Civil Liberties Union, claim that Californias education system does not ensure all students equal access to basic educational opportunities. Theyve alleged a familiar list of complaintsthat students, particularly those of color and from low-income families, face intolerable conditions resulting from overcrowding, lack of textbooks, the absence of fully qualified teachers and decaying school facilities, and have asked the court to create a statewide system of standards and enforcement. The plaintiffs argument is decades old, and one that few in the education community would take issue with, but CSBAs Education Legal Alliance has intervened in the suit, fearing that the suggested solution to the problem would really only exacerbate the problems the suit seeks to resolve.

The importance of this case cant be overstatedit has the potential to profoundly affect public education as we know it, says CSBAs General Counsel John Bukey. But not necessarily in the most positive way. We intervened to represent the interests of school districts because, among other things, we believe its important for the court to understand that establishing state standards without providing districts with the resources to implement those standards is at best meaninglessand likely to be far worse, since such standards might subject districts to enforcement action through courts or state agencies.

In the Ho case, a group of Chinese Americans students sued the San Francisco Unified School District, essentially claiming its practice of using race as a factor in making student assignmentspart of the districts voluntary desegregation programwas unconstitutional. The case was settled in 1999, resulting in a new student assignment program that has generated much less controversy. Its a post-modern twist on the tale of civil rights in California to be sure, and one that SFUSD Board member Jill Wynns says illustrates the danger in thinking the job was done when the Brown case was resolved.

Thats the lesson of Brownwe thought that if only we could get the kids sitting next to each other it would be done, says the 12-year member of the San Francisco board. Today, we are sophisticated enough to know that the answer is not simple on any level. The job will never be done. And people who are responsible for schools need to remember that this is not a job we will complete. These are situations that have to be managedand they always will.

While the job may never truly be done, the institutional racism and oppression that the Plessy case set in motion was not only halted, but reversed by Brown. Once our schools were integrated, the rest of our social institutions followed: public transportation, restaurants, restrooms, the workplace, the theatrealmost anywhere people come together, their right to do so is well protected. Kimberly West-Faulcon who carries on the Marshall legacy as director of the Western Regional Office of the NAACPs Legal Defense Fund may have said it best when she recently declared before Californias Select Committee on Urban Youth that Brown is the case that ended American Apartheid. Even the life of Thurgood Marshall himselfwho went on to become Americas first African-American Supreme Court Justiceserves as a testament to the decision, and the years he struggled to win that decision. But Marshall himself did not believe that he had achieved what he set out to do in arguing the Brown case, according to his biographer, Juan Williams, Emmy-award winning writer of the civil rights documentary, Eyes on the Prize, and the 1998 biography, Thurgood Marshall: American Revolutionary.

Speaking to school board members from all across the country at a meeting of the National School Boards Association in April of this year, Williams wasnt sure either. But he had this message to offer to school Board members about their role in the continuing struggle for educational equity:

I can think of no other group that I could be speaking to with greater relevance in terms of taking on the challenge of  what Brown meant 50 years ago. When we think about making Brown real in this day and age and offering future generations some representation of the possibility of equal education opportunity, this moment exists in a way that I think history will pay extraordinarily close attention to in terms of the actions that you take in your communities with regard to delivering on that promise of equal opportunity for all children regardless of income, regardless of race.  The fact is that dream remains in the hearts of many Americans to this moment, the fact is that that dream now is in each and every one of your hands as people who offer vision about the future of education in America in your communities, as school board members. That dream and Thurgood Marshalls legacy truly plays out in each and every one of your offices.

Judge allows race as factor in enrollment

Decision is first since Prop. 209 to let school district integrate

By Bob Egelko, San Francisco Chronicle, April 11, 2007

Berkeley's public schools, the first in the nation to desegregate voluntarily, can consider the racial composition of a student's neighborhood in an enrollment system designed to keep each campus racially diverse, an Alameda County judge has ruled.

The decision by Superior Court Judge Winifred Smith could lead to the first California appellate ruling on a school district's ability to maintain a voluntary integration program under Proposition 209, the 1996 initiative that banned race and sex preferences in public education, employment and contracting.

The case may also be affected by a pending U.S. Supreme Court decision on the constitutionality of school integration plans. A ruling is due by the end of June on lawsuits by white parents challenging programs in Seattle and Louisville, Ky., that take students' race into account in school assignments.

Even if the nation's high court allows some form of race-based integration, however, Prop. 209 could still ban it in California. In several cases not dealing with schools, state courts have interpreted the initiative as an absolute ban on racial classifications.

"Prop. 209 prohibits the use of race in any part of public education in California,'' attorney Sharon Browne of the Pacific Legal Foundation said Tuesday. She said she will appeal the ruling, which the judge issued Friday, on behalf of an anti-affirmative action group created by Prop. 209 founder Ward Connerly called the American Civil Rights Foundation.

But attorney Diana Tate of the Lawyers' Committee for Civil Rights, representing parents who sided with the district, said the ruling shows that Prop. 209 can be reconciled with school officials' duty under California law to "prevent segregation regardless of its cause.''

The Pacific Legal Foundation has also sued the Los Angeles school district for its alleged use of racial criteria in determining who may attend specialized "magnet'' schools, and has threatened to sue San Francisco if the city Board of Eduation reinstates the use of race as a factor in school assignments. San Francisco took students' race into account under a court-supervised desegregation program from 1983 until 2001, when a judge ordered elimination of racial criteria in response to a suit by Chinese American parents.

The 9,000-student Berkeley Unified School District has taken measures since 1968 to promote racial balance between schools in the largely minority flatlands and the mostly white hillside and UC Berkeley neighborhoods.

Its current plan, adopted in 2004, gives each neighborhood of four to eight blocks a diversity rating, based on parents' income and educational levels and the students' racial composition. The district uses that rating to promote balance at the city's 11 elementary schools and in special academic programs at Berkeley High School.

In her ruling, Smith said the enrollment system does not violate Prop. 209's ban on racial preferences because the district considers race only indirectly, as a factor in a neighborhood's diversity rating, and does not determine individual student placements.

"The district simply takes racial diversity into account, along with other diversity indicators, as a means of achieving its goals of integration of its schools,'' the judge said.

She refused, however, to dismiss one part of the lawsuit, challenging a Berkeley High tutorial program called the Academic Pathways Project. The lawsuit claimed that the program is reserved for minorities as well as low-income students, an arrangement that may violate Prop. 209, Smith said.

Special school programs for blacks: racist or essential?

The Pinellas board's depositions for an upcoming trial turn on the question of access vs. outcome

By Thomas Tobin, St Petersburg Times, March 25, 2007

For decades, school districts have organized around a simple idea: Whatever you give to white students, give it to black students, too.

Put both groups of students in the same schools. Expose them to the same teaching. If they struggle, give them the same help.

In the Tampa Bay area and across the nation, this was how educators atoned for the long-ago sin of relegating black children to inferior schools.

Now, in a class-action lawsuit that has Pinellas County's top educators on the defensive, the plaintiffs say the policy of equal access has failed the school district's 20,000 black students.

Black kids, they contend, will need uniquely tailored programs if the district ever hopes to erase an education gap that has them lagging behind every other ethnic group in school performance.

The case of William Crowley vs. the Pinellas County School Board - seven years old and finally headed for trial - may be the only one of its kind in the nation.

"What's unique about it is the unadorned claim that if you have an achievement gap, you are violating the law," said Michael Kirk, a Washington, D.C., lawyer hired to help defend the district. If that were true, he argued, then every district with a significant number of minority students would be liable.

The call for a unique set of programs to help black students has been a central theme in recent days as lawyers prepare for a two-week jury trial starting July 9. The plaintiffs' attorney, Guy Burns of Tampa, has summoned the entire Pinellas School Board for depositions, as well as superintendent Clayton Wilcox and his top deputies.

In the four depositions to date, Wilcox and three board members have stayed on message: The district provides equal opportunity for all students to learn, they said. What students make of that opportunity is up to them.

If the district does any tailoring, they said, it's with an eye toward individual student needs, not race. They said the causes of the gap are too varied and complex to be solved by a single program or set of programs for black students.

At one point as he appeared to choke back emotion, Wilcox argued that giving black students something special would imply they are, by nature, less able than their peers.

"I know a lot of people want to ascribe things to us, but I will tell you I think we go out of our way to look at kids as kids in this district," he said. "I know we do at the highest levels. I know we do."

He added: "We don't just go into a school and say, 'You know what? We got a bunch of black kids here so we've got to teach (a different way).' I think that would be racist behavior. I absolutely won't do that. You can't make me do that."

The lawsuit was filed in August 2000 by William Crowley on behalf of his son, Akwete Osoka, then a 7-year-old student at Sawgrass Elementary School in St. Petersburg.

The boy, who is black, had faced academic problems that were "typical of those difficulties commonly faced by students of African descent," the lawsuit said. It alleged Pinellas failed to provide an adequate education to black students, in violation of Florida law and the state Constitution.

The case has since become a class action, meaning the plaintiffs include all black children who attend or will later attend Pinellas public schools.

Initially supported by the International People's Democratic Uhuru Movement, an activist group in St. Petersburg, the challenge has come to be embraced by a broader segment of the black population, Burns said.

It is a case grounded in numbers, none of them flattering.

Last year, 67 percent of black public school students in Pinellas scored below their grade level on the reading portion of the Florida Comprehensive Assessment Test - nearly twice the percentage of low-scoring whites.

The graduation rate for black students was a dismal 46 percent in 2005, and black students perennially are more than twice as likely as nonblacks to be suspended.

In a three-hour deposition this month, Burns asked School Board member Nancy Bostock if the district had addressed the gap with any programs designed for black students.

"Our programs are designed to address a student's academic needs, not their skin color," she answered.

Did she think the numbers warranted special programs?

"No, I don't."

Did she think Pinellas black students received a high-quality education?

"I believe many black students in Pinellas County do receive a high-quality education."

What did she think of a system that failed to graduate more than half its black students?

"I think it would depend on what those students availed themselves of while they were in the system," said Bostock, whose black son is officially considered a plaintiff in the lawsuit.

In other questions, Burns suggested that the district's current methods weren't working with the 19 percent of its students who are black. He also played off the district's contention that it is legally obligated to provide every student an opportunity for a good education, not a good outcome.

He asked board member Linda Lerner whether there was some flaw in the way the opportunity was being presented to black kids.

"No," she answered.

Everyone agrees the gap is large and troublesome, Burns said in an interview. They differ on who is responsible for it and how far a school district should go in trying to fix it.

"There's a big philosophical rift," Burns said.

Part of the difference is in how the two sides interpret the numbers.

While Burns has pointed to aggregate numbers that show the gap in stark relief, Wilcox points to subsets of numbers that show smaller groups of black kids making modest gains.

While Burns points to the graduation rate, Wilcox says the statistic "is not a fair measure of all that goes on in a system."

Another example: Last year, 13,105 black students took the reading FCAT. Burns focuses on the 8,780 who scored below grade level and sees a huge problem. District officials see the problem, too, but point to the 4,325 black students who did well in reading.

How can that be, they ask, if the district is systematically discriminating against black students?

For district officials, the debate is nothing new. They've had many of the same arguments among themselves.

At a retreat with the School Board in January, Wilcox found himself in the minority when he argued that the district should be making a special effort to improve the performance of black students. He wanted it stated prominently as a goal in the district's strategic plan.

Several board members said they did not see why black students should be highlighted over other kids.

"That is the one group right now that we really have to be publicly focused on," Wilcox responded. "It's 20 percent. That's one out of every five kids in this district."

But the superintendent found himself making the opposite case in the deposition with Burns.

"I don't look at kids based on their race; I look at individual kids based on their needs," he said. "Eighty percent of my kids are some other race."

Kirk, the district's lawyer, explained that the district and Wilcox find themselves caught between two positions.

Legally, they are "only responsible for putting a good education out there," he said. But as educators they want to do more.

He said of Wilcox: "He feels like they need to do everything in their power to get good results."

Justices Reject Diversity Plans in Two Districts

By Linda Greenhouse, New York Times, June 28, 2007

WASHINGTON, June 28  With competing blocs of justices claiming the mantle of Brown v. Board of Education, a bitterly divided Supreme Court declared today that public school systems cannot seek to achieve or maintain integration through measures that take explicit account of a students race.

Voting 5 to 4, the court, in an opinion by Chief Justice John G. Roberts Jr., invalidated programs in Seattle and metropolitan Louisville, Ky., that sought to maintain school-by-school diversity by limiting transfers on the basis of race or using race as a tiebreaker for admission to particular schools.

Both programs had been upheld by lower federal courts and were similar to plans in place in hundreds of school districts around the country. Chief Justice Roberts said such programs were directed only to racial balance, pure and simple, a goal he said was forbidden by the Constitutions guarantee of equal protection.

The way to stop discrimination on the basis of race is to stop discriminating on the basis of race, he said. His side of the debate, the chief justice said, was more faithful to the heritage of Brown, the landmark 1954 decision that declared school segregation unconstitutional. When it comes to using race to assign children to schools, history will be heard, he said.

The decision came on the final day of the courts 2006-7 term, which showed an energized conservative majority in control across many areas of the courts jurisprudence.

Chief Justice Robertss control was not quite complete, however. While Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. joined his opinion on the schools case in full, the fifth member of the majority, Justice Anthony M. Kennedy, did not. Justice Kennedy agreed that the two programs were unconstitutional. But he was highly critical of what he described as the chief justices all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account.

In a separate opinion that could shape the practical implications of the decision and provide school districts with guidelines for how to create systems that can pass muster with the court, Justice Kennedy said achieving racial diversity, avoiding racial isolation and addressing the problem of de facto resegregation in schooling were compelling interests that a school district could constitutionally pursue as long as it did so through programs that were sufficiently narrowly tailored.

The four justices were too dismissive of the validity of these goals, Justice Kennedy said, adding that it was profoundly mistaken to read the Constitution as requiring that state and local school authorities must accept the status quo of racial isolation in schools.

As a matter of constitutional doctrine and practical impact, Justice Kennedys opinion thus placed a significant limitation on the full reach of the other four justices embrace of a colorblind Constitution under which all racially conscious government action, no matter how benign or invidious its goal, is equally suspect.

How important a limitation Justice Kennedys opinion proves to be may become clear only with time, as school districts devise and defend plans that appear to meet his test.

Among the measures that Justice Kennedy said would be acceptable were the drawing of school attendance zones, strategic site selection of new schools, and directing resources to special programs. These would be permissible even if adopted with a consciousness of racial demographics, Justice Kennedy said, because in avoiding the labeling and sorting of individual children by race they would satisfy the narrow tailoring required to meet the equal protection demands of the 14th Amendment.

Justice Stephen G. Breyer, who wrote the principal dissenting opinion, was dismissive of Justice Kennedys proposed alternatives and asserted that the court was taking a sharp and seriously mistaken turn.

Speaking from the bench for more than 20 minutes, Justice Breyer made his points to a courtroom audience that had never seen the coolly analytical justice express himself with such emotion. His most pointed words, in fact, appeared nowhere in his 77-page opinion.

It is not often in the law that so few have so quickly changed so much, Justice Breyer said.

In his written opinion, Justice Breyer said the decision was a radical step away from settled law and would strip local communities of the tools they need, and have used for many years, to prevent resegregation of their public schools. Predicting that the ruling would substitute for present calm a disruptive round of race-related litigation, he said, This is a decision that the court and the nation will come to regret.

He said the chief justices invocation of Brown v. Board of Education was a cruel irony when the opinion in fact rewrites the history of one of this courts most important decisions by ignoring the context in which it was issued and the Supreme Courts subsequent understanding of it to permit voluntary programs of the sort that were now invalidated.

It is my firm conviction that no member of the court that I joined in 1975 would have agreed with todays decision, Justice Stevens said. He did not mention, nor did he need to, that one of the justices then was William H. Rehnquist, later the chief justice, for whom Chief Justice Roberts once worked as a law clerk.

Justice Clarence Thomas was equally pointed and equally personal in an opinion concurring with the majority.

If our history has taught us anything, Justice Thomas said, it has taught us to beware of elites bearing racial theories. Then he added in a footnote, Justice Breyers good intentions, which I do not doubt, have the shelf life of Justice Breyers tenure.

The justices had been wrestling for over a year with the two cases. It was in January 2006 that parents who objected to the Louisville and Seattle programs filed their Supreme Court appeals from the lower court decisions that had upheld the programs.

The Louisville case was Meredith v. Jefferson County Board of Education, No. 05-915, filed by the mother of a student who was denied a transfer to his chosen kindergarten class because the school he wanted to leave needed to keep its white students to stay within the programs racial guidelines.

The Seattle case, Parents Involved in Community Schools v. Seattle School District No. 1, No. 05-908, was filed by a group of parents who had formed a nonprofit corporation to fight the citys high school assignment plan.

Because a single Supreme Court opinion resolved both cases, the decision carries only the name of the Seattle case, which had the lower docket number.

The appeals provoked a long internal struggle over how the court should respond. Months earlier, when Justice Sandra Day OConnor was still on the court, the justices had denied review in an appeal challenging a similar program in Massachusetts. With no disagreement among the federal appellate circuits on the validity of such programs, the new appeals did not meet the criterion the court ordinarily uses to decide which cases to hear. It was June of last year before the court, reconfigured by the additions of Chief Justice Roberts and Justice Alito, announced, over the unrecorded but vigorous objection of the liberal justices, that it would hear both appeals.

By the time the court ruled on Thursday, there was little suspense over what the outcome would be. Not only the act of accepting the appeals, but also the tenor of the argument on Dec. 4, gave clear indications that the justices were on course to strike down both plans.

The cases were by far the oldest on the docket by the time they were decided; the other decisions the court announced on Thursday were in cases that were argued in March and April. What consumed the court during the seven months the cases were under consideration, it appears likely, was an effort by each side to edge Justice Kennedy closer to its point of view.

While it is hardly uncommon to find Justice Kennedy in the middle of the court, his position there this time carried a special resonance. He holds the seat once occupied by Justice Lewis F. Powell Jr. who, 29 years ago to the day, announced his separate opinion in the Bakke case. That solitary opinion, rejecting quotas but accepting diversity as a rationale for affirmative action in university admissions, defined the law for the next 25 years, until the decision was refined and to some degree strengthened in the University of Michigan Law School decision.

Justice Kennedy was a dissenter from that 2003 decision. But, surprisingly, he cited it on Thursday, invoking it to rebut the argument that the Constitution must be always be, regardless of context or circumstance, colorblind.

How high court ruling will affect schools in S.F.

By Jill Tucker, San Francisco Chronicle, June 29, 2007

The president of San Francisco's school board, once a leading advocate for using a student's race to make school assignments, said he is likely to abandon that stand in the wake of Thursday's decision by the U.S. Supreme Court that all but banned race as a factor.

The change of heart by board President Mark Sanchez suggests a once well-established board majority supporting the use of race to integrate schools could crumble.

"I don't think that we're going to be able to use race in a way that would have a major impact in how we place students," Sanchez said Thursday afternoon. "It's getting to the point where you have to thread the needle, and if we're not going to be able to guarantee diversity in the classroom, I'm just saying, why go down that road?"

In a 5-4 decision, the court severely restricted the use of race to integrate schools. Yet Justice Anthony Kennedy, who cast the swing vote in siding with the majority in a separate opinion, indicated he was open to "race conscious measures" to address segregation, though in very limited ways.

In Berkeley, the only other local district whose school assignment system might be touched by Thursday's decision, officials said they believe they are within the legal confines of the decision despite their use of race as a factor.

In San Francisco, the board appeared somewhat split on what to do in response to the ruling. Some members said San Francisco could be the next Constitutional test case. Others appeared to agree with Sanchez and said using race to integrate schools and classrooms likely would fail to address segregation while draining district coffers to cover legal fees.

Board Vice President Norman Yee said the decision had him leaning against using race.

"Why am I doing this battle, for what?" Yee said. "I would rather see our energy put into other things."

School district general counsel David Campos said it will take time for the legal community to interpret the decision, particularly Kennedy's pivotal opinion.

Kennedy noted that both Seattle and Louisville, Ky., the districts involved in the Supreme Court decision, hadn't tried other options to integrate schools before using race to assign students.

San Francisco has, Campos said, but the other options haven't worked, and many schools have resegregated.

In 1982, San Francisco fell under a federal consent decree to racially integrate schools that imposed specific limits on ethnic ratios at each school.

In 1994, Chinese American families sued the school district to eliminate the race factor, which they said kept their children out of preferred schools when the Asian ratio reached the limit.

After a settlement in that case, the district abandoned the use of race in 2002 in favor of a system that used family income, the mother's education level and other factors to assign students to the most sought-after schools. The process has led to increased segregation, especially in poor neighborhoods.

When the consent decree ended in 2005, school board members initiated community discussions to bring back the race factor.

In November, what appeared to be a majority of the board was poised to introduce a resolution that would have used race as a tie-breaker in student assignment, but the measure was pulled at the last minute.

The board decided to hold off until the high court ruled.

Board member Eric Mar, a college instructor who holds a law degree, said Thursday's decision was disappointing but that San Francisco should consider ways to pursue the use of race within the scope of Kennedy's opinion.

"I would want to be very careful in how we proceed," he said. "It means our lawyers have to get to work, and our civil rights partners, to be really careful that it's a constitutional plan we put forward."

Yet any use of race in student assignment is sure to draw legal challenges.

Attorney David Levine opined that the Supreme Court decision doesn't matter in California because Proposition 209 already banned the use of racial preference.

"For the school district to say that somehow this ruling gives them an opening is to completely ignore California law," said Levine, a Hastings Law School professor and former counsel for the Chinese American families who sued the district.

Sanchez said he didn't believe adding race to the equation would make a difference, the legal decision notwithstanding.

The district's current system was supposed to lead to integration without using race.

Yet, San Francisco families choose the schools they want their children to attend based on a variety of factors, and diversity is not at the top of their priority list, Sanchez said. School safety, programs, transportation, location and other factors all come first.

"The public has spoken in San Francisco over and over again," he said. "Everything trumps diversity. I'm discouraged by that, but that's the reality."

Sanchez briefly outlined what he believes is a good plan to assign students while also helping to integrate schools.

He said he supports allocating half the seats at each school to neighborhood families who want to attend with the other half determined by an open lottery.

For the families who generally do not specify a choice -- predominantly African American and Hispanic families under the current system -- the district would scatter the students across the district, Sanchez said.

At the same time, the district would have to pour resources into the under-enrolled and struggling schools to make them more competitive, he said.

"At the end of the day, if we're going to have real diversity, that's how it's going to happen," he said.

In Berkeley, however, district officials said they've already achieved that and think Thursday's ruling will have no effect on their current system. Berkeley families can select preferred schools, but are given priority depending on the socio-economics -- including race -- within their neighborhood.

An individual child's race is never considered. Most Berkeley schools generally reflect the overall demographics of the city.

The Berkeley system is under legal attack by the Pacific Legal Foundation and the case is pending in Alameda County Superior Court. Opponents say the system violates Proposition 209. The judge in the case has dismissed all but one of the causes of action.

Berkeley School Superintendent Michelle Lawrence said she believes her system could be a model for integration after Thursday's decision.

"As an educator, I believe that there is a strong interest in public education to create diverse schools," Lawrence said. "I really do believe that part of why our kids do so well -- in the arts, music and academics -- is this understanding of cultures, races, religions and handicapping conditions, all of which are embraced in our schools and are an important ingredient in educating a citizen."

School Diversity Based on Income Segregates Some

By Jonathan Glater and Alam Finder, New York Times, July 15, 2007

SAN FRANCISCO  When San Francisco started trying to promote socioeconomic diversity in its public schools, officials hoped racial diversity would result as well.

Tareyton D. Russ, principal at Willie Brown, with a student, John Corleto. Mr. Russ says students from other areas do not seek to go there. It has not worked out that way.

Abraham Lincoln High School, for example, with its stellar reputation and Advanced Placement courses, has drawn a mix of rich and poor students. More than 50 percent of those students are of Chinese descent.

If you look at diversity based on race, the school hasnt been as integrated, Lincolns principal, Ronald J. K. Pang, said. If you dont look at race, the school has become much more diverse.

San Francisco began considering factors like family income, instead of race, in school assignments when it modified a court-ordered desegregation plan in response to a lawsuit. But school officials have found that the 55,000-student city school district, with Chinese the dominant ethnic group followed by Hispanics, blacks and whites, is resegregrating.

The number of schools where students of a single racial or ethnic group make up 60 percent or more of the population in at least one grade is increasing sharply. In 2005-06, about 50 schools were segregated using that standard as measured by a court-appointed monitor. That was up from 30 schools in the 2001-02 school year, the year before the change, according to court filings.

The San Francisco experience is telling because after the recent United States Supreme Court decision restricting the use of race-based school assignment plans, many districts are expected to switch to economic integration plans like San Franciscos as a legal way to seek diversity. As many as 40 districts around the country are already experimenting with such plans, according to an analysis by Richard D. Kahlenberg of the Century Foundation, a nonpartisan public policy research group.

Many of these experiments are modest, involve small districts or have been in place only a few years. But the experiences of these districts show how difficult it can be to balance socioeconomic diversity, racial integration and academic success.

Only a few plans appear to have achieved all three goals. Others promote income diversity but not racial integration while still other plans are limited and their results inconclusive. Those who have studied them say a key to that outcome is how aggressively a plan shifts students around and whether there are many schools that can lure middle-class students from their neighborhoods into poor ones.

Systemwide programs are more effective than piecemeal programs, said Mr. Kahlenberg, who has studied plans like these.

The purpose of such programs is twofold. Since income levels often correlate with race they can be an alternate and legal way to produce racial integration. They also promote achievement gains by putting poorer students in schools that are more likely to have experienced teachers and students with high aspirations, as well as a parent body that can afford to be more involved.

There is a large body of evidence going back several years, Mr. Kahlenberg said, that probably the most important thing you can do to raise the achievement of low-income students is to provide them with middle-class schools.

Economic integration initiatives differ from each other, and from many traditional integration efforts that relied on mandatory transfer of students among schools. Some of the new initiatives involve busing but some do not; some rely on student choice, while some also use a lottery. And so it is difficult to measure how far students travel or how many students switch schools.

he most ambitious effort and the example most often cited as a success is in the city of Raleigh, N.C., and its suburbs.

For seven years the district has sought to cap the proportion of low-income students in each of the countys 143 schools at 40 percent.

To achieve a balance of low- and middle-income children, the district encourages and sometimes requires students to attend schools far from home. Suburban students are attracted to magnet schools in the city; children from the inner city are sometimes bused to middle-class schools at the outer edges of Raleigh and in the suburbs.

The achievement gains have been sharp, and school officials said economic integration was largely responsible. Only 40 percent of black students in grades three through eight in Wake County, where Raleigh is located, scored at grade level on state reading tests in 1995. By the spring of 2006, 82 percent did.

The plan works well, said John H. Gilbert, a professor emeritus at North Carolina State University in Raleigh who served for 16 years on the county school board and voted for the plan. Its based on sound assumptions about the environment in which children learn.

The Charlotte-Mecklenburg school district, North Carolinas largest, has also tried an economic integration plan, but with less success.

Students were once assigned to schools in Charlotte and its suburbs based in part on achieving racial balance, but that system was struck down in federal appeals court in 2001.

The school board then created an assignment plan based on income and choice; a low-income student could transfer to a middle-class school if he came from a high-poverty, low-performing school. But such transfers could occur only if there was room, and there seldom was. There are not a whole lot of seats available and so there is not a lot of choice available, said Scott McCully, the districts executive director of planning and student placement.

Within several years, said Roslyn Arlin Mickelson, professor of sociology at the University of North Carolina at Charlotte, the schools became markedly more segregated.

In the smaller school system in Cambridge, Mass., children apply to the citys 12 elementary schools and socioeconomic status is an important factor in ultimate assignments. The system has been phased in gradually since the fall of 2002.

Last year, 75.8 percent of Cambridges low-income third graders were judged to be progressing toward reading proficiency. That was higher than the statewide average for low-income students, 71.3 percent, and better than the rate in more than a dozen other cities in the state.

Other districts have not seen such results. One district in San Jose, Calif., switched to using family and neighborhood income instead of race for assignments two years ago, giving a preference to students in low-income areas who try to transfer to schools in higher income areas, and vice versa.

But in the first year, the number of students switching schools declined significantly and has only begun to recover in the last year.

San Francisco had been under a court order to desegregate for more than 20 years, with no school allowed to have a majority of students from one racial or ethnic group. But after Chinese-American parents whose children were kept out of certain elite schools sued, the district switched in 2002-03 to a plan that sought socioeconomic diversity.

Students apply to the schools they want to attend, and the district uses a diversity index for assignments when a school is oversubscribed. The index considers the language spoken at home, whether a child qualifies for free lunch or is in public housing, a childs academic performance and the quality of a childs prior schools. But it has not resulted in racial integration.

We were hopeful that the diversity index would work, said Stuart Biegel, a law professor at the University of California, Los Angeles, who was the districts court-appointed monitor. No one was rooting against it. But it didnt work.

Officials say one problem is that many students apply to neighborhood schools, which do not recruit enough students from outside their area. Another problem is demographics. Mr. Biegel said public school students in San Francisco were relatively low income over all, whatever their race or ethnicity, so the diversity index produced less mixing than hoped.

The wide ethnic diversity in San Franciscos schools, which are about one-third Chinese, also introduces calculations among parents that make it easier to get income diversity without racial or ethnic diversity.

At Willie L. Brown Jr. College Preparatory Academy, a fourth- through sixth-grade school in the predominantly black neighborhood of Bayview, 75 percent of the students are black. Most are poor.

Tareyton D. Russ, the principal, said students from other neighborhoods did not seek to go there so the diversity index did not even apply. Poor Chinese kids dont want to go to school with poor black kids, Mr. Russ said flatly.

Conversely, one white parent interviewed as she dropped her child off at summer school said some white parents avoided schools with a heavy Chinese concentration, like Lincoln, believing they would be too high-pressure for their children. She declined to be quoted by name.

David Campos, the general counsel to the school district, said the resegregation was so disappointing that the school board might try to test whether Justice Anthony M. Kennedys opinion in the recent Supreme Court case left open the possibility of using race if other methods of integration fail.

We stopped using race at some point, Mr. Campos said. And then for a number of years we have tried to use a number of race-neutral factors to achieve racial diversity, which methods havent worked. Should the board decide to use race, and they may or may not, we are a very good test case.

Case spotlights race as magnet school criteria

Foes say voters banned ethnicity as a factor in 1996 with Prop. 209, but L.A. Unified contends admissions under desegregation orders like one imposed on the district in 1981 are exempt

By Carla Rivera, Los Angeles Times, September 26, 2007

In a case that could determine the future of the Los Angeles Unified School District's popular magnet schools, attorneys met in court Tuesday to argue whether race and ethnicity are valid criteria for determining whether students are selected for the prized spots.

Attorneys for a group that opposes affirmative action contend that California voters rejected race as a factor in admitting students when they passed Proposition 209, the 1996 initiative that bans preferential treatment in public programs on the basis of race or ethnicity. Appearing before Los Angeles County Superior Court Judge Paul Gutman, the lawyers argued that the school district should find a racially neutral way to administer magnet schools and achieve diversity.

"We're not seeking to end these programs, but we are seeking to end the illegal means by which kids get access to these programs," said Paul J. Beard II, an attorney for the Sacramento-based Pacific Legal Foundation, which brought the case. "Even if you assume that the district has an obligation to integrate, whatever obligations that might have existed in the 1960s, 1970s or 1980s has to yield to the voters intent" in passing Proposition 209.

But L.A. Unified and its supporters maintain that the district is still under a 1981 federal court order to desegregate schools and that the voluntary magnet system, in which about 54,000 of the district's 708,000 students are enrolled, has achieved a modicum of success in providing black, white, Asian and Latino students access to quality education.

Moreover, they argue that Proposition 209 specifically exempted court desegregation orders in force at the time the initiative became law.

"It's disingenuous to argue that court order is not in force today," said Catherine E. Lhamon, an attorney for the American Civil Liberties Union of Southern California, which has intervened in the case in support of the school district. "The magnet program is more oversubscribed and more popular than ever."

All of the parties are seeking summary judgment -- a ruling in their favor without going to trial. Gutman took the arguments under submission and said he would issue a ruling in late October. Any outcome is likely to be appealed, though, meaning a trial is probable at some point, attorneys said.

In late June, the U.S. Supreme Court struck down magnet school programs in Seattle and Louisville, Ky., that used racial guidelines to determine enrollment. L.A. Unified attorneys have said the ruling is unlikely to have any effect because the district remains under court order to remedy past racial discrimination, although Beard contended that the 1981 court order did not mandate that the district use race or ethnicity in selecting students for magnet schools.

The case began in October 2005, when the American Civil Rights Foundation, an anti-affirmative action group associated with Proposition 209 author Ward Connerly, filed a lawsuit that challenged the constitutionality of the district's magnet program and a voluntary busing program called Permits With Transportation.

The lawsuit was sparked when the family of a white student complained that the magnet school he wanted to attend put him on a waiting list for years because there were too many white students already enrolled, Beard said. The family is not a party to the lawsuit, he said, but are members of the American Civil Rights Foundation. In an interview after the hearing, Beard conceded that the magnet program is popular but argued that minority students are just as negatively affected when they are unable to obtain a desired space because of their color.

"This is billed as a case to gut magnet programs, but there are other criteria that could be used, like economic factors or a lottery," Beard said. "Let's just make it race neutral."

But opposing attorneys said that given Los Angeles' pattern of racially segregated neighborhoods, using the race or ethnicity of students is unavoidable. Attempts in other cities to discount race have mostly failed and led to resegregation, said Shanta Driver, an attorney for a group of students who have intervened in the case to support the L.A. Unified magnet program.

Magally Miranda, 16, a senior at Bravo Medical Magnet High School attending Tuesday's hearing, said the racial diversity at magnet schools is a major reason for their success.

"L.A. is supposed to be so diverse, but in reality you have like Latinos on the Eastside, Armenians in the north and African Americans in South L.A.," said Miranda, who would have attended Roosevelt High School had she not enrolled in Bravo. "At Bravo, I get a better feel for other cultures. Aside from the educational benefits, I can grow as a person."

The magnet schools, which offer specialized programs, have a ratio of about 30% to 40% white students. They typically have an active parent body and offer bus transportation. The schools were initially intended to draw students from mostly white neighborhoods to minority campuses after the divisive forced-busing battles in the late 1970s.

Mestizaje: Making our racial categories obsolete

By Peter Schrag, Sacramento Bee, November 28, 2007

As Ward Connerly prepares initiatives to abolish race-based affirmative action in five more states, New America Foundation fellow Gregory Rodriguez, no fan of Connerly's movement, has published an eye-opening book that nonetheless reinforces deep questions about the nation's racial assumptions and categories.

Connerly is the Sacramento businessman and ex-regent of the University of California who drove the successful campaigns overturning race-based preference policies in public education, employment and contracting in California, Washington and Michigan. He's now planning similar campaigns in Arizona, Colorado, Missouri, Nebraska and Oklahoma.

Connerly's most notable failure was the overwhelming defeat of California's Proposition 54 in 2003, which would have prohibited the use of official racial categories in all instances where they were not required by federal law and not essential to public safety. Those categories, Connerly said, legitimized racial divisions that were long obsolete.

Rodriguez's book, "Mongrels, Bastards, Orphans and Vagabonds: Mexican Immigration and the Future of Race in America" raises similar questions but folds them into a compelling, extensively documented history, going back to the conquistadors, of the consequences of the Mexican racial and cultural synthesis called mestizaje  the mixing of Spaniard and Indian.

Because of it, he writes, "Mexican Americans are forcing the United States to reinterpret the concept of the melting pot to include racial as well as ethnic mixing."

It also undercuts the historic American racial dualism of "white" and "nonwhite."

The use of the word "mongrels" is calculated  an ironic echo of the warnings of American nativists of a century ago that the great influx of immigrants from southern and eastern Europe  Poles, Hungarians, Greeks, Italians, Jews  would mongrelize and weaken the American racial stock.

Essayist Richard Rodriguez, no relation of Gregory, has eloquently made the same point. But Gregory Rodriguez, traces it through four centuries in Mexico and the United States.

He describes not only our own uncertainty about how to classify Mexicans in the conventional American racial structure but the corresponding ambivalence among Mexican Americans and their advocates about whether to list themselves as white (as Mexican elites did in the 1930s) or, after the start of affirmative action  Rodriguez calls it "a race-based spoils system"  as a minority. By the 1980s, he writes, "a program that had been designed to remedy past discrimination was increasingly benefiting recently arrived immigrants and their children."

In the 1950s, established Latino organizations called for an expansion of the Border Patrol and the deportation of illegal immigrants whom they regarded as "a direct danger to our own citizens."

All that changed with affirmative action in the 1960s after which some advocacy groups, ignoring the "burgeoning Mexican American middle class" and misusing poverty data, "often found themselves vying with African Americans for the dubious title of being the most downtrodden minority in America."

As both Rodriguezes have noted, the conventional categories are now further confounded by the extraordinarily high rates of intermarriage between Mexicans  neither Rodriguez much likes the noun Latino or Hispanic  and members of other ethnic groups. (The same is true of Asians and, to a small but increasing degree, of African Americans.)

Children born in California, Richard Rodriguez sometimes says, don't look like their grandparents.

Contrary to latter-day exclusionists such as Victor Davis Hanson, the ex-Fresno State professor who wrote "Mexifornia," and Samuel Huntington, the retired Harvard political scientist, who maintain that Mexican immigrants will be an indigestible lump in U.S. society, Gregory Rodriguez celebrates a "new assimilation" that, with exceptions like its impact on racial assumptions, may not be so different from that of the past.

Despite the large number of Spanish-language media, pitched largely to immigrants, he says, Mexican Americans haven't created separate colleges or other institutions; 71 percent of their grandchildren speak only English at home.

Nor is it any secret in the Southwest that millions of Latinos have moved into the middle class  as professionals, as business owners and homeowners  and into the ranks of voters. In the process, Rodriguez says, they're "also calling into question the validity of the nation's racial category system."

Rodriguez seems to feel that Connerly's campaign to abolish affirmative action inflames racial issues unnecessarily. But he leaves no doubt that with the nation's rapidly evolving racial demography  and particularly the acceptance, even the celebration, of racial mixing among Mexicans  maybe "the best thing the government can do is to acknowledge changes in the meaning of race in America and then get out of the way."

Of course there are questions: Does the Latino stress on extended family loyalty conflict with the abstract Anglo-American principles of blind justice? Will the Latino tradition of bringing religion into the public space weaken the separation of church and state?

Nobody has persuasive answers to such questions. Merely to raise them is to wade into hot dispute. But there's no doubt that, on this, the 300th anniversary of the founding of Jamestown, the nation's racial demographics are radically undermining the way we count and see one another.

Group appeals court ruling on schools

Judge: Berkeley can include race among factors determining student placement

By Kristin Bender, Alameda Times Star, March 18, 2008

A public interest legal organization has appealed an Alameda County judge's ruling that says that the Berkeley school district does not violate state law when it considers race as one of many factors in assigning students to schools.

The Sacramento-based Pacific Legal Foundation, on behalf of the American Civil Rights Foundation, is appealing an April 2007 ruling by Alameda County Superior Court Judge Winifred Y. Smith that says the school district is within the lawwhen it considers race in student assignments and when admitting them to special educational programs.

"Berkeley seems to think that you are not using race in public education if you use race along with several other factors," said Alan Foutz, an attorney with Pacific Legal Foundation.

"That's like saying you are not using flour in your cake recipe because you also have baking powder, sugar, water and oil. Berkeley still has race in their mix of factors for student assignments and that violates Proposition 209."

The appeal was filed Monday in the California Courts of Appeal First District in San Francisco.

The foundation claims that the district's Elementary Student Assignment Plan violates Proposition 209 because it uses race in determining the assignment of individual students to schools.

Proposition 209 is a 1996 California law prohibiting racial preferences in public education, contracting and employment.

The school district defended its assignment plan Monday.

Berkeley Unified School District has been successful in defending our Student Assignment Plan in court on two occasions and we are confident that we will be successful in this appeal as well," district Superintendent Bill Huyett said.

The Pacific Legal Foundation in October 2006 sued the district. In April 2007, Smith ruled in favor of the district, saying race is only one of the criteria used for assigning schools.

Berkeley uses race, parent preference, family income, a student's address and other criteria when making campus assignments.

Berkeley allows students to pick their desired schools, but if a school is over-subscribed, students are then assigned schools using a computerized lottery weighted by each student's diversity score.

District officials said the diversity score is designed to help make sure the diversity of each school within the district is proportionate to the diversity of the overall district.

At no point is the race of the individual child used as a criterion for school assignment, district officials said.

In her ruling last year, Judge Smith said that the court needs further evidence before determining the legality of a school district program called the Academic Pathways Program.

That program at Berkeley High School is a college preparatory and tutoring program geared toward low-income African-American and Latino students. It is, however, open to students of all races. That part of the suit is still tied up in the courts, foundation officials said Monday.

L.A. can use race as factor in magnet schools

Judge: Berkeley can include race among factors determining student placement

By Bob Egelko, San Francisco Chronicle, December 22, 2008

(12-21) 17:43 PST -- Los Angeles can continue to seek racial balance in assigning tens of thousands of students to specialized magnet schools despite California's voter-approved ban on race preferences in government programs, a state appeals court has ruled.

Friday's decision by the Second District Court of Appeal in Los Angeles preserves the long-standing desegregation program in the state's largest school district in the face of a challenge by backers of Proposition 209, the 1996 ballot measure. Lawyers in the case disagreed on whether the ruling could also affect a lawsuit against the use of race in Berkeley school enrollments.

The court said a judge's order in 1981 that required the district to consider the race of students applying to magnet schools in Los Angeles - the culmination of a discrimination case that began in 1963 - remains in effect and allows the program to continue under an express exemption in Prop. 209.

Sharon Browne, a Pacific Legal Foundation attorney for an organization affiliated with Prop. 209 sponsor Ward Connerly, denounced the ruling, saying the court "has told the students of Los Angeles that your race means more in defining who you are than your individual merit."

Browne said she would consult with her clients on whether to appeal to the state Supreme Court, which is already reviewing a case over whether San Francisco's bidding preferences for minority and female contractors violate Prop. 209.

She said the ruling should have little impact on other programs, which can't claim authorization based on pre-Prop. 209 court orders. But a lawyer for parents who joined the Los Angeles district's defense of the magnet schools said the decision is a hopeful sign for Berkeley's school integration program, the target of a suit now before an appellate court in San Francisco.

The ruling "sends an important message to school districts around the state that the districts can continue with their desegregation efforts," said Catherine Lhamon, an American Civil Liberties Union attorney who, like Browne's group, is involved in the Berkeley case. She said the court made it clear that Prop. 209 "means only what its text says," including its exemption for programs required by pre-existing judicial orders.

Berkeley's program, in effect since 2004, seeks to promote racial balance at the city's 11 elementary schools and in special academic programs at Berkeley High School. Enrollments at each school are based on the diversity of the students' four-to-eight-block neighborhoods, including race and the parents' income and educational levels.

A Superior Court judge upheld the program in April 2007, saying Berkeley was not granting preferences based on individual students' race.

Prop. 209 prohibited preferences based on race and sex in employment, contracting and education. Only a handful of subsequent court rulings have addressed its application to school.

About 56,000 of Los Angeles' 700,000 students attend magnet schools or a smaller desegregation program, Permit With Transportation, also affected by the ruling. The 162 magnet schools, at all grade levels, concentrate on specific fields, like math and science or the arts, and often have long waiting lists.

Admission to highly sought schools is based on several factors, including a student's attendance at a predominantly minority school. The district's overall white enrollment is only 9 percent, but magnet schools maintain white enrollments of 30 to 40 percent, and give preference to students on the waiting list who allow them to keep that ratio.

The program is the remnant of a desegregation plan that took effect, after extended court proceedings, in 1978. A year later, California voters outlawed mandatory race-based school assignments except in cases of intentional segregation, an initiative that was upheld by the U.S. Supreme Court and largely dismantled the Los Angeles plan.

In 1981, a judge ordered the city to implement a scaled-back integration program based on voluntary enrollment in racially diverse magnet schools. That order ended the original desegregation case, but the court said Friday that the judge's decree remains in effect and is exempt from Prop. 209.

"A school district is entitled to rely on the ongoing validity of a desegregation order" until it is revoked, Justice Sandy Kriegler said in the 3-0 ruling. Because Prop. 209 allowed existing court-ordered racial enrollment plans to continue, Kriegler said, the magnet schools can maintain their current practices.

The ruling can be read at www.courtinfo.ca.gov/opinions/documents/B205943.PDF.

Ethnic achievement gap in education can't be closed, Palo Alto superintendent says

By Sharon Noguchi, San Jose Mercury, February 2, 2009

When it comes to closing the achievement gap, Palo Alto schools Superintendent Kevin Skelly says educators are deluding themselves. And he dares to say what's become almost unspeakable publicly:

"It's just not possible for the average kid who comes to this country in seventh or eighth grade, or even third grade, without a word of English and parents with little formal education, to match the achievement levels of kids whose mom has a Ph.D. in English from Stanford and can afford to stay home and spend time supplementing the education of her kids.''

Closing the gap that is separating higher-scoring white and Asian students on one hand and lower-scoring black and Latinos on the other has become a key mission of California educators. Today, state schools Superintendent Jack O'Connell, who's made eliminating the achievement gap the centerpiece of his administration, is expected to pledge to continue those efforts, even as school budgets are axed.

"We know all students can learn to a high level,'' said O'Connell, who hasn't wavered in his mission. "We have a moral, social and economic imperative.''

Yet totally eliminating the gap would be "the triumph of hope over experience,'' said Skelly, who came from San Diego 19 months ago to take the helm of Palo Alto's 17 schools. When educators set that lofty goal, "We're not being honest, and it's to our detriment.''

Here in the shadow of Stanford University, those socioeconomic and educational differences are arguably magnified. While many professors, high-tech workers and other professionals have paid a premium to live in the city to send their children to highly regarded schools, other parents come from working-class backgrounds, some busing their children from East Palo Alto and eastern Menlo Park.

Make no mistake, Skelly said, his schools should  and do  try to bring up the achievement of Latino and African-American students. But idealistic rhetoric creates high public expectations for schools, while letting families, politicians and society in general off the hook, Skelly believes. By themselves, schools can't overcome the influence of parents, friends and communities, he said.

He believes preschool deserves more funding to better prepare more students to learn, and schools should ensure all students are prepared for college  so they don't end up taking remedial classes at community colleges.

In California, white students outscore blacks by 157 points and Latinos by 133 points on the state's academic achievement index. It's a gap that yawns in both math and language and at all grade levels, across income levels and school districts. And studies have shown a strong link between mothers' educational levels and their children's achievement.

In Palo Alto, where students as a whole outscore the state by a considerable margin, the gap is even wider: : On the state's academic performance index for 2008, the district's Asians scored 972, whites scored 934, Latinos 746 and African Americans 700. That's a 234-point gap between white and black students, up one-third from 2003 and nearly 50 percent higher than statewide figures.

The white-Latino gap also is greater in Palo Alto  188 points  than it is statewide. But the school district has narrowed that gap by 7 percent over five years.

Skelly said he doesn't know why African-American achievement has fallen in the district. But he insists that schools are educating kids better than they did before. Bill Garrison, the district's testing guru, notes that a higher proportion of blacks and Latinos in Palo Alto suffer from poverty, learning disabilities and English deficiencies, all factors that pull down scores, than do whites and Asians.

Members of the Parent Network for Students of Color say even children who excel in elementary school falter so badly in middle and high school many barely graduate. "There's a huge problem here,'' said Melissa Kirven-Brooks, mother of a senior and twin freshmen in the district and a member of the group.

Kirven-Brooks wants Palo Alto to emulate successful staff training and parental involvement programs that have helped narrow the achievement gap elsewhere.

Skelly said the district is working hard on several fronts to bring up lagging students. At Barron Park Elementary School, some fifth graders have longer school days three days a week and start school two weeks early in the summer. Districtwide, struggling students attend an academic summer school.

While Skelly's colleagues may agree with his realpolitik talk that California must give schools the means to educate the immigrant and poor students, they take issue with his words. "Teaching is more powerful than what kids bring to school with them as background,'' said Charles Weis, superintendent of Santa Clara County schools. "We can close the achievement gap; we just need to create the environment where it can happen.''

Don Iglesias, superintendent of the San Jose Unified School District, is unequivocal: "I absolutely do believe that it is possible for kids from poverty and with high mobility to succeed.''

Skelly doesn't disagree with any of that, and he believes that his staff every day works to educate all kids: "If you stop believing you can make a difference in a kid's life, you ought to get out of education,'' he said. He just has an issue with setting unrealistic goals  similar to the state board of education mandating that all eighth graders, regardless of readiness, take algebra. He calls that "a nutty idea.''

Schools already know what does help students: longer school days, a longer school year and especially, an excellent classroom teacher for each child.

Yet those seem elusive this year, with massive budget cuts on the horizon. Even in that dark cloud, Skelly finds a possible silver lining. In a bad economy, he believes, "People will take education more seriously.''


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Last modified: June, 2007

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