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Contested Racial-Balance Plan in San Jose Is Found Acceptable by 9th Circuit Court

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The San Jose (Calif.) Unified School District may continue to operate its current desegregation plan without any midyear modifications, a federal appeals panel has ruled.

The U.S. Court of Appeals for the Ninth Circuit said this month that plaintiffs in the case had failed to provide sufficient proof of their allegations that the plan places a disproportionate burden on minorities.

The implementation of the plan has been hotly contested despite the fact that the district has consistently exceeded the racial-balance targets contained in a 1985 court order.

The appeal of U.S. District Judge Robert F. Peckham's approval of this year's student-assignment plan pitted the school district against the developers of the "controlled choice" model on which the plan is based.

San Jose's plan is a modified version of "controlled choice," a popular desegregation method first implemented in Cambridge, Mass., earlier this decade. It requires all students to select their schools, subject to racial and ethnic caps that reflect the composition of the district's population.

In the San Jose appeal, the concept's developers challenged the district's modifications of the plan, arguing that they had led to inequitable treatment of students despite the attainment of racial-balance goals.

The method's authors--Michael J. Alves, former desegregation director for the Massachusetts Department of Education, and Charles V. Willie, professor of education at Harvard4University--said the district had failed to make the extra effort needed to inform minority and low-income parents about their options under the plan. As a result, they said, a disproportionate number of those parents registered after many sought-after schools had been filled.

They also charged that the use of enrollment caps during the second round of school selections greatly increased the likelihood that new residents and other late registrants--most of them members of minority groups--would not receive their preferred school assignments.

The appellate panel rejected the arguments, saying that the plaintiffs' "claim of disproportionate burden cannot stand solely on the assertion that a majority of students registering during Phase II are minorities."

Lawyers in the case disagreed last week on whether the ruling foreclosed similar challenges next year.

"Absent a change in circumstances," the schools "should be able to use the same approach and the same criteria next year that they are using in the current year," said Peter D. Collisson, the district's lawyer.

But Thomas Villarreal, a lawyer for the minority plaintiffs, maintained that "the unequal burdens that the parties face is an open question subject to challenge," possibly as early as next spring.

Mr. Alves said the ruling illustrated a "dilemma" of such cases. "As long as school districts are meeting racial-balance requirements, other important equity issues don't seem to get much attention," he said.

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