Golden Gate University Law Review


Professor William M. Carter, Jr.’s trailblazing work, Affirmative Action As Government Speech, first examined the relationship between government speech and race-conscious measures. According to Professor Carter, the United States Supreme Court “has come to view race-conscious government action as a form of prohibited government speech.” This Article takes a different approach from that of Professor Carter; specifically, the Article reviews the majority, dissenting, and concurring opinions in the Parents Involved case for language indicating the Justices’ parameters for viewing voluntary race-conscious measures as government speech. This is important, given that Parents Involved is the landmark Supreme Court decision on race-conscious measures at the K-12 school level.

Part I of this Article describes the government-speech doctrine. Part II describes the Equal Protection Clause jurisprudence (the traditional weapon of choice for those challenging race-conscious measures, due to the potency of the strict-scrutiny test). Part III presents the facts of the Parents Involved case. Part IV examines the opinions of the United States Supreme Court Justices in Parents Involved in light of the government-speech doctrine. The Article concludes that the government-speech doctrine would provide schools needed leeway to pursue race-conscious measures.