Judge James Richman, an Alameda County Superior Court Judge, has dismissed the Pacific Legal Foundation’s challenge to policy of the Berkeley Unified School District that allows race to be considered as “one of many factors” in school assignment. (I discussed this case earlier here and here.)
Judge Richman concluded that since race was only “one of many factors” that the school board could consider, the policy could, conceivably, be implemented without ever taking race into account. Thus, he decided, the policy that allows the consideration of race does not on its face violate Proposition 209, which barred the consideration of race.
“The ruling doesn’t grapple with 209 very successfully,” said Vikram Amar, a UC Hastings law professor with a specialty in constitutional law and civil procedure. Amar said the Berkeley plan might be defensible on other grounds, but “just because race is used as one factor among many, doesn’t take it outside of 209.” UC affirmative action plans also took race into account among many factors, he said, and Prop. 209 “was clearly intended to overthrow that.”
David Levine, another UC Hastings law professor, predicted the appeals court would overturn Richman’s ruling. Levine was one of the attorneys who represented a group of Chinese American students who, in 1999, won a federal court order ending race-based enrollment in San Francisco.
The Pacific Legal Foundation plans to appeal.
I wonder if the Court spent more than 1 second analyzing its own reasoning. What if this kind of load of crap were to be upheld? Racial/etnic profiling? It was only one of the factors in deciding who to pull over or search. Political patronage? It was only one of the factors in deciding who to hire? Any other kind of discrimination? Well, as long as one considers some other factor(s), one can do whatever one wants.
“Judge Richman concluded that since race was only ‘one of many factors’ that the school board could consider, the policy could, conceivably, be implemented without ever taking race into account.” Pardon me while I laugh out loud.
Allowing race to be considered as