Ever since Proposition 209, the anti-race-preference initiative, was passed by California voters in 1996, various state and local government agencies have sought a means to save race-based government programs. In a recent ruling, an Oakland judge purports to have found such a means in the form of a U.N. treaty that supposedly trumps Prop. 209.
The case in question involved a challenge to the Berkeley Unified School District’s student placement plan. Under the plan, parents were asked to list the top three schools they would prefer their children to attend. The district then assigned a child based on space availability, his residence or socio-economic status, and race/ethnicity. The district used the race factor to achieve racial balance, based on district-wide demographics, at each grad level. But using race to dole out coveted spots in Berkeley’s better schools is at odds with Prop. 209.
Under the voter-approved measure, government “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” Despite this clear language, however, Superior Court judge James Richman managed to perform some shocking legal contortions in order to find that the Berkeley plan didn’t violate 209.
First, he observed that since race was just one factor used by the Berkeley school district, it was theoretically possible that no child was placed in a school because of race, and that all children were placed due to the other non-race factors. Using this possibility, he found that Berkeley’s plan “does not on its face discriminate” based on race. This finding, however, is absurd since the Berkeley touted its plan as a voluntary racial-desegregation program specifically designed to achieve racial balance.
Judge Richman also claimed that since Prop. 209 doesn’t mention voluntary desegregation plans, race-conscious school-assignment plans are permissible. He tried unconvincingly to distinguish a 2002 state appellate court decision that held that Prop. 209’s ballot materials clearly targeted exactly these types of race-conscious desegregation programs. Perhaps sensing the weakness of his position, Richman fell back on the 1965 United Nations International Convention on the Elimination of All Forms of Racial Discrimination, which California incorporates into section 8315 of its government code.
The U.N. treaty, ratified by the U.S. Senate in 1994, says that “special measures taken for the sole purpose of adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination….” In other words, race-preference programs are okay as long as they advance some nebulous U.N. notion of human rights.
Then-Governor Gray Davis and the liberal state lawmakers who enacted section 8315, which gave force of law to the U.N. treaty, tried to undercut Prop. 209 through the section’s wording that treaty-sanctioned “Special measures shall not be interpreted as preferential treatment.” Judge Richman described the Berkeley program as a race-conscious school assignment plan hat provided all students with the “same benefit of desegregated schools.” He therefore ruled that applying Prop. 209 to the Berkeley case would be “inconsistent” with the language of the U.N. treaty.
Based partly on the U.N.-treaty language, Richman concluded that the Berkeley plan “does not discriminate against, or provide preferential treatment to, any student based on race.” Never mind that some schools are better than others, which is why parents choose some schools over others. Under the Berkeley plan, children could be denied entry into a better school because that school had enough students in their racial or ethnic group, which is racial discrimination. Further, being placed in a good school because of race is a racial preference. Both are illegal under Prop. 209.
Will Richman’s position be the legal wave of the future? David Levine, a professor at University of California Hastings law school who has litigated race-preference cases, believes that Richman’s opinion isn’t convincing and will likely be overturned on appeal. Also, University of California regent Ward Connerly is challenging section 8315 in court. Regardless, more local governments are discovering the U.N. treaty and its potential to legitimize currently illegal race preferences. Look for the pro-race-preference crowd to be sporting blue berets in their continuing battle against 209.
–Lance T. Izumi is director of education studies at the Pacific Research Institute. Sharon L. Browne is principal attorney with the Pacific Legal Foundation, which brought the lawsuit against Berkeley Unified School District on behalf of a Berkeley parent.