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.