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Instead, the six Juneau School Board members present Wednesday approved a lottery that gives preference for low-income and low-achieving students as a way of achieving diversity.

The school district's attorney had advised that racial preferences aren't legally permissible.

"We haven't let down our recruitment efforts for diversity of all kinds, but we can't legally include (race) in the lottery," Superintendent Peggy Cowan said.

The district uses lotteries to fill openings in charter schools and Tlingit-oriented classrooms when there are more applicants than openings.

But two years ago, a white parent complained to the U.S. Department of Education's Office for Civil Rights, and the agency said the policy was discriminatory.

Now, "in order to achieve diversity, we do a lot of outreach and that's it," said Margo Bellamy, the equal employment opportunity director for the Anchorage School District.

The number of minorities in the optional programs wasn't affected last school year, she said.

"In the end, those ethnic families who would have chosen to go to an optional program still made that choice, even if race was not a preference," Bellamy said.

Ernie Mueller, a member of the governing committee of the Juneau Community Charter School, regretted that racial preferences aren't legal.

"I really think the charter school profited by having a preference for Alaska Native students. I feel bad we can't do that anymore," he said.

The school's Native enrollment has grown from about 6 percent in its early years, the late 1990s, to 15 percent today.

School districts can require charter schools to actively recruit students from a variety of places, to get a pool with a good mix, said Preston Green, who teaches educational law at Pennsylvania State University.

Nationally, charter schools have been diverse by having a curriculum that attracts the community, said Nina Rees, assistant deputy secretary for innovation and improvement at the U.S. Department of Education.

"The more stakeholders from the community you involve in the initial planning of a school, the better off you are in reaching the racial and income diversity you're trying to get," Rees said.

Juneau's new lottery is just one prong of an effort to increase the racial and income diversity in optional programs, and to make them more accessible to all students.

The district hopes to publicize the programs better, recruiting especially among underrepresented groups. It will take time, officials are learning.

No one from the public showed up at recent informational meetings at subsidized housing complexes and for the Filipino community, Cowan said.

William Judy, a parent who applied to both charter schools, didn't disagree with recruitment efforts, but he said all applicants "should be thrown into one hat with the rest of us."

Parents at the Juneau Community Charter School and Montessori Borealis on Wednesday worried that the new lottery used criteria for being in preferential categories that weren't well-defined.

"I and many of my fellow parents want diversity," said Catherine Reardon, a charter school parent. "We want preferences that bring diversity into our school. ... I'm concerned that these particular preferences won't get you what you want, what we all want."

The district originally suggested that low-income children would not include children who have attended pre-school. After hearing parents' complaints, the School Board removed the preschool provision.

Parents also were afraid that the new lottery could leave them with openings they couldn't fill if not enough children from preferential categories applied.

Unfilled openings would cost charter schools state funds.

"Unless we have the numbers, we can't exist," Mueller said.

Scheduled lotteries would be held in April, May or June, and again August if needed. It's possible that some spots wouldn't be filled until just before the school year began. That bothered School Board member Bill Peters.

Some parents also objected to a provision that caps at 50 percent the portion of students in each class that can come from the neighborhood.

The idea is to prevent an optional program from taking too many students from the nearest regular school.

When schools lose students, they lose funding. Even a drop of a few students can trigger the reduction of a teacher, School Board member Bob Van Slyke said.

Angie Lunda, principal at Gastineau Elementary, said the loss of students to optional programs changes the culture of the regular school. The loss of funding affects what the school can offer all its students, she added.

• Eric Fry can be reached at eric.fry@juneauempire.com.