The case highlights a predicament faced across the country 51 years after the U.S. Supreme Court ruled that school children cannot be segregated by race: How to create integrated schools without violating anti-discrimination laws.
At issue in the Capistrano case is Proposition 209, a measure California voters approved in 1996 that bars discrimination or preferential treatment based on race or ethnicity.
Peter Ditto, a father of three teenage girls who supports the school district's changes, said he understands why people are upset, but he believes bringing up race is the wrong approach.
"Our kids have to live in a diverse world," Ditto said. "I think recognizing that people are different, dealing with different cultural issues, are important lessons."
The new attendance boundaries would send the Winstens' oldest daughter, now a seventh-grader, to San Juan Hills High School, a $100 million school being built near what Michael Winsten calls one of the busiest highways in Orange County.
School district attorney David Larsen said race was used only at the end of the boundary-drawing process to ensure that none of the schools would be segregated.
Larsen said parents, administrators and community members spent months working on attendance options. District memos show officials wanted to create high schools with about 2,500 students each and a racial composition as close as possible to 65 percent white and 35 percent minority to resemble the district's ethnic makeup.
Federal appeals courts have allowed the Seattle school district to use race as a tie-breaking factor in high-school admissions and upheld a similar plan used by the school district of Lynn, Mass. And in a pair of 2003 rulings, the U.S. Supreme Court agreed the University of Michigan could use race in its admissions criteria.
But in August 2002, the California 4th District Court of Appeals struck down Huntington Beach Unified's policy of using race in approving high school transfers, saying it violated the U.S. Constitution.
The courts have never said children have a right to go to a particular school, only that they have a right to an equal education, said Jack Boger, deputy director of the University of North Carolina's Legal Center for Civil Rights.
"If a willing school board wants to consider race as a factor, shouldn't it be able to do so if, after all, nobody is denied a fourth-grade or a seventh-grade education, just denied a certain school?" Boger said. "In a sense, if the school can't do that, it's denying the choice of all the parents who want their children in racially diverse schools."
That's what the NAACP, the American Civil Liberties Union and other civil rights groups tried to argue in seeking intervener status in the lawsuit against the school district. An Orange County judge denied their motion last month.
Parent Tareef Nashashibi also lent his name to the lawsuit. He said his son and daughter benefited from the diversity at their Capistrano school. His son, 19, graduated last year familiar with five languages, he said.
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