In other words, taking race into account when assigning students does not violate a law that prohibits taking race into account. "The constitutional provision prohibits unequal treatment of particular persons and groups of persons; it does not prohibit the collection and consideration of community-wide demographic factors."

That's plain old double-talk. The spirit of the law is that the government is prohibited from making decisions based on the race of individuals or groups or neighborhoods. Berkeley collects and considers community-wide demographic factors with the intent to assign students based on the color of their neighbors' skin.

Proposition 209, challenged since its inception, will continue to be challenged. According to the National Law Journal, the same day this decision was handed down, the California Supreme Court asked the state attorney general whether Proposition 209 violates the Equal Protection clause. Although Californians voted to put the government out of the skin color business, groups continue to challenge and state entities continue to defy the peoples' will.

Attorney Alan Foutz of the Pacific Legal Foundation said the American Civil Rights Foundation, which filed the lawsuit against Berkeley, likely will appeal the decision to the state supreme court. "The court has carved a big hole in Proposition 209 by permitting school districts to use race as one of the factors that determine where kids will go to school," Foutz told the Oakland Tribune. "Prop. 209 is comprehensive and categorical in banning the use of race in student assignment. The court has undermined that mandate for color blind educational policy by allowing districts to continue using race in its student assignment decisions."

As the Center for Equal Opportunity's Roger Clegg notes, California's use of a racial classification is enough to trigger strict scrutiny, no matter how cleverly it tries to get around the law. Why does the government continue discriminating by race, when the whole point of civil rights-era laws was to prohibit the government from discriminating by race? Diversity, no matter how wonderful it may be, does not and will never justify this practice.