SFUSD Overseer Sends Mixed Signals on Race
By Jason Ma and Joyce Nishioka

While voicing criticism of a school assignment plan that considers race along with other demographic factors, U.S. District Judge William Orrick, whose ruling this year in a Chinese American lawsuit scuttled 16 years of quotas, on Monday denied a request from a key plaintiff who asked the court to prevent the San Francisco school district from distributing transfer request forms that ask for the student’s race and ethnicity.

Charlene Ho and her family, among Chinese Americans who sued in 1994 after their children were not admitted into desired schools, in February reached a settlement that said, among other things, that the district cannot use race as a primary factor in a new school-assignment plan.

“What happened today is an incredible disappointment,” said Amy Chang, vice president of the Asian American Legal Foundation which backs the Ho family and other plaintiffs. “The irreparable damage is the right of any child in the district not to be classified by race.”

According to Henry Louie, a Democratic Central Committee member who has long backed the plaintiffs, Ho had asserted that the forms did not specify that providing information on race and ethnicity is optional and will not result in “adverse consequences,” as is required by the settlement.

But on Monday, Orrick ruled that no “irreparable harm” would result from circulating the so-called optional enrollment request forms, noting that they will allow the district to continue tracking trends in ethnicity. That, too, is a condition of the Ho vs. SFUSD consent decree.

Only a week earlier, Orrick filed documents criticizing the assignment plan that the district had just submitted to him as “not a model of clarity.” He requested what he called a “plain English explanation.”

What was clear, he said, was that the plan “uses the race or ethnicity of students as one factor in classifying students for assignment.” He said he wouldn’t approve the plan unless the district presents a legal basis for using race.

There was wide disagreement as to whether the settlement allows the district to consider race in enrollment decisions.

“Judge Orrick is really questioning whether the proposed plan is legal, and he’s giving the district a second bite at the apple,” said David Levine, an attorney representing the families in their class-action suit against the district, the state and the NAACP.

“The judge is saying to the district, the other plan allegedly violated the Constitution by using race, so why wouldn’t this plan that also uses race violate the Constitution?”

NAACP attorney Michael Harris argued that the plan contains race as only one of four factors in enrollment, “so it’s no longer a question of someone being admitted to a school based on race.”

The policy would rely on four criteria -- family income level, reading and math scores, language proficiency and race.

School board member Eddie Chin said his own understanding of the settlement was that “race may not be used as the primary factor” in the assignment plan, but he added that he will wait to comment further until counsel argues over the legality of the assignment plan.

He did add, however, that Orrick “had the power” to file the order and that the judge was reasonable in asking that the plan be explained “in plain English. Parents need to know. It’s a complex issue. Like a tax manual that the average taxpayer can’t understand, it’s the same situation. The plan needs to be said in simple terms,” Chin said.

For the past few months, the school board has debated including language in the plan that would have limited Lowell applicants to the top performers at each middle school. But in his response, Orrick complained that the plan does not explain how admissions will be handled at schools with entrance requirements, such as Lowell High and School of the Arts.

Louie’s top objection, echoed by other parents, is that the current plan would “destroy parental involvement by moving kids all over the place,” even though the plan stipulates that families who live near a certain school will be given priority if requested.

“That plan is the death knell of the neighborhood school,” Louie said. “It puts diversity as an end in itself and that is problematic.” The board, he said has “missed the mark in believing that by simply moving kids around they will magically perform better than they have been.”

Supporters of racial diversity shared the judge’s misgivings about the clarity of the SFUSD’s proposed assignment plan, saying they could not support the 70-page plan as long as it remained unclear.

“I’m not surprised by either action,” said Diane Chin, executive director of Chinese for Affirmative Action. “The plan clearly was not in plain English.”

She also emphasized that Orrick did not condemn the district for using race as a factor, but merely asked for more clarification on how it would be used to ensure that the criterion met with February’s settlement.

Orrick’s order called for the district to do the following by Nov. 12:

• File a memo explaining how the plan avoids “alleged constitutional infirmities” of the previous assignment plan and explain how it will “survive review under strict scrutiny.”

• Submit one or more declarations, explaining “in plain English,” precisely how race or ethnicity would be used to assign students and how the plan would apply to Lowell and School of the Arts.

District staff putting together the assignment plan made a presentation to the board two days after Orrick’s complaint. The board took no action, said school board member Frank Chong.

School board President Juanita Owens, who requested the Nov. 4 meeting, blamed district staff for what she admitted were few delineated answers on thorny enrollment dilemmas.

“The enrollment plan is very ambiguous,” Owens said. “Board members have wanted dialogue on this, but the district hasn’t responded. And apparently, by the wording of the order, Judge Orrick isn’t satisfied with the plan.”

The Associated Press contributed to this report.