That’s the gist we got out of the First District’s ruling today, in a constitutional challenge to Berkeley’s way-complicated system for assigning students to different elementary schools, and to different programs in high school. The upshot: The appeals court unanimously said Berkeley’s system is A-OK, despite Prop 209, because it doesn’t consider a student’s own race at all. Instead, all students in a neighborhood are treated the same — and the way the neighborhood is treated is based on a bunch of things, like average income level, average education level, and the neighborhood’s overall racial composition. The court's opinion calls things like this "affirmative policies" fostering social diversity. That term doesn't sound familiar at all.
Our choice for the money quote that will, we bet, stir up other litigation, after the jump …
From the opinion (.pdf) by Justice Patricia Sepulveda (joined by Justices Ignazio Ruvolo and Timothy Reardon):
Plaintiff [American Civil Rights Foundation] argues that section 31 [Prop 209] prohibits the School District from “using race” in any fashion, even when classifying neighborhoods and not individuals. The argument is contrary to the plain language of section 31, which provides that the state “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race.” (Italics added.) Section 31 does not say that the state shall not consider race for any and all purposes. The constitutional provision prohibits unequal treatment of particular persons and groups of persons; it does not prohibit the collection and consideration of community-wide demographic factors.
Incidentally, the First District was agreeing with the trial court judge, Alameda County’s Cecilia Castellanos. The plaintiff was represented by the Pacific Legal Foundation’s Alan Foutz and Paul Beard II, while the Berkeley school district was represented by Keker & Van Nest’s Jon Streeter and Benjamin Au. (And -- incidentally again -- over on CalLaw.com we’re just reporting today that Jon Streeter is among the names being tossed about for a Ninth Circuit seat.)
— Pam Smith