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Harold Johnson- Columnist

Harold Johnson is an attorney with Pacific Legal Foundation. A Sacramento-based public-interest law firm, PLF has a long history of litigating for tax restraint, including in support of Proposition 13 following its enactment in 1978.

Harold Johnson represents one of the Sea Scouts challenging Berkeley's anti-Scout policy before the California Supreme Court. Mark S. Pulliam, a Pacific Legal Foundation trustee, is an attorney in San Diego with sons in the Boy Scouts.

Defending The Spirit Of Brown In Berkeley
Categorizing by color...
[Harold Johnson] 5/19/04

What does Berkeley in 2004 have in common with Topeka, Kansas, in 1954? A fixation with the skin color of public school students.

There's a big difference, of course. Topeka's obsession with race was mean-spirited, while Berkeley's is well-meaning. Topeka's policy -- struck down by Brown v. Board of Education, the antisegregation ruling that marks its 50th anniversary on May 17 -- kept the races apart. Black students were restricted to certain schools, while white students went to other schools. Things were separate -- and unequal.

In contrast, when the Berkeley Unified School District uses skin color to match students with schools, it does so to get a mixture of black, Latino, and white kids in classrooms.

Even when guided by good intentions, however, categorizing kids by color is dangerous. It accents skin-deep differences. It reinforces stereotypes that say ethnicity is destiny. It provides precedent, available for use by those with less laudable goals, for using color to distinguish -- and to discriminate.

One more thing: In California, it happens to be illegal. Eight years ago, voters added Proposition 209 to the California Constitution, outlawing race- and sex-based bias in public education, contracting, and hiring. Sponsors rightly billed it as a follow-up to Brown and other milestone civil rights decisions, because it says no one should be treated less equally than another because of skin color or sex.

Lorenzo Avila, a Berkeley parent, objects to the way Berkeley has been shutting its eyes to Prop. 209's requirement to be colorblind. Last year, represented by Pacific Legal Foundation, he brought a lawsuit against the district's student-assignment policy. The case will be one for the history books.

District officials have already retreated a bit and downgraded the role of race in planning for the next school year. But they seem poised to return to a color-based calculus. In fighting the Avila/PLF lawsuit, they're stubbornly arguing that race can be used to say where kids can go to school -- and they're defending their original scheme with no apologies.

"Controlled choice" was the scheme's Orwellian title. The aim was to balance each school's racial makeup to within 5% of the overall district population. So, while parents could suggest where they'd like their child to be enrolled, their "choice" would go out the window if the student's color didn't fit the desired racial mix for that school.

Berkeley's schools suffer from chronic budget woes. Yet officials see no extravagance in devoting thousands of clerical hours to counting students by color and calibrating racial targets for each school. By forcing some students to attend schools outside of their neighborhoods, the district's race-balance fixation has made kids "hostages to bus schedules" and robbed time from after-school activities, as a former Berkeley PTA council president recently complained to school officials.

Last month, an Alameda County Superior Court sided with the district against Avila. Because race isn't the only factor in "controlled choice" -- space availability and the child's socioeconomic background also count -- the scheme doesn't flout Prop. 209, Judge James Richman ruled.

That reasoning doesn't bear inspection. When assignment can be conditioned on skin color, the fact that other considerations might play a part doesn't sanitize things.

Just as dubiously, the judge seized on a new statute, authored by Assemblyman Mervyn Dymally (D-Carson), and signed last year by Gov. Gray Davis, that plays games with Prop. 209's wording. Prop. 209 says government "shall not discriminate.'' The meaning is clear. As the state Supreme Court has said, to "discriminate" is "to show partiality (in favor of) or prejudice (against)" -- just what Berkeley does when it turns students away from the school of their choice for racial reasons.

But the Dymally law gives the word a new spin -- taking a cue from a United Nations treaty on discrimination. According to this new, "improved" definition, it's not necessarily discrimination to treat people differently by color, when the objective is "advancement of certain racial or ethnic groups."

Besides the fact it would let government play favorites by race, the Dymally law has a problem: A statute can't amend the state constitution, or change the meaning of its words. Hence, Dymally's definitional distortion is the target of a lawsuit by Prop. 209 sponsor Ward Connerly (who is represented by PLF).

The bottom line for Avila's case: His setback in Superior Court will probably be short-lived. Judge Richman gave Avila's attorneys "something easy to shoot at" on appeal, Professor David Levine of UC San Francisco's law school told an interviewer. The judge's decision "strained" not "to follow [the] precedent" of other cases that have applied Prop. 209, said Levine. "I don't think it's very convincing."

Lorenzo Avila believes it's wrong to teach students that color, not character, is their defining attribute. He wants Berkeley schools to focus on academics, not social engineering that treats kids like chips on a checkerboard.

In other words, his lawsuit is animated by classic civil-rights concerns, by the letter of Prop. 209 -- and by the spirit of Brown. CRO

copyright 2004 Pacific Legal Foundation



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