Bench Memos

NRO’s home for judicial news and analysis.

Bad Ruling in California


A state appeals court in California has ruled that Berkeley school district’s policy of assigning students based in part on the racial makeup of their neighborhoods is not racial discrimination. As I once heard Sharon Browne of Pacific Legal Foundation (which brought the lawsuit) pithily put it, it seems hard to believe that, if it’s illegal to discriminate against someone because of his race, it can still be legal to discriminate against that person because of his neighbor’s race. That’s what’s going on here.

As a matter of federal (constitutional) law, the government is clearly using a racial “classification,” and that is enough to trigger strict scrutiny.  It is also clear that what the school district is doing is racially motivated — it’s simply found a clever proxy for the race of the students themselves — which also triggers strict scrutiny. And, as a matter of state law, it is hard to believe that Proposition 209 ought to be interpreted as narrower than the Constitution, when the former was passed to supplement the latter. Prop 209 reads: “The state 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.” Students and groups of students are being treated differently “on the basis of race” here.


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