Hunter ex rel. Brandt v. The Regents of the University of California
In a 2-1 decision, the Ninth Circuit ruled that the racial consideration used in a laboratory school’s admission policy was constitutional under the Equal Protection Clause of the Fourteenth Amendment. The Corinne A. Seeds University Elementary School (UES) was a “laboratory school;” that is, a school set up by a graduate university (here, UCLA’s Graduate School of Education) in order to conduct research and experimentation into urban education. UES considered a number of factors in its admission, including race, gender, and economic status, so as to make the school’s population mirror that of actual urban areas, thereby producing accurate results. Subjecting this policy to the “strict scrutiny test,” Judge Harry Pregerson wrote for the majority that the consideration of race/ethnicity is narrowly tailored to serve a compelling government interest, and is therefore constitutional.
The majority in this case employs all kinds of activism here. Most egregious is the way the panel errs by Contorting the Text of the Equal Protection clause. As the dissent correctly points out, the clause is designed to prevent discrimination between individuals based on race. Yet the majority twists this prohibition on race-based discrimination so as to justify another form of racial discrimination, based on the belief that such policies will be socially beneficial. This reasoning demonstrates another type of judicial activism in play here: that of Playing Legislator. Judge Pregerson weighs policy considerations above the Constitution, and deeming UES to be good for social policy research—and that the racial consideration is necessary to make it so—rules in favor of the school. Finally, on the occasions when the majority does rely on law, they are Abusing Precedent. The majority claims that past racial discrimination is not the only justification for giving present racial preference. Yet as Judge Beezer points out in his dissent, this is in fact the only area in which there is no conflict or dispute in case law.
A correct application of the Equal Protection Clause would recognize the original intent of providing constitutional justification for the 1866 Civil Rights Act, thereby requiring states to provide the same treatment to people of all races. The framers of the amendment were thus primarily concerned with ensuring the principles of equality put forth in the Declaration of Independence. Such an understanding would not permit racial preferences in school admissions. Furthermore, to be consistent with the original meaning, the strict scrutiny test must be applied on an individual rather than the class level the Court uses (that is, judging someone as a person, rather than as a member of a class). As the dissent correctly points out, Equal Protection is violated when the government treats people differently because of their race.
Court & Reporter NumberNinth Circuit, 190 F.3d 1061
Type(s) of Activism
- Contorting Text
- Playing Legislator
- Abusing Precedent
Area(s) of law
- Civil Rights and Racial Preferences
- Equal Protection
- Michael Daly Hawkins
- Harry Pregerson