[Footnote 8]. The dissents proposed testwhether sufficient social science evidence supports a government units conclusion that the interest it asserts is compellingcalls to mind the rational-basis standard of review the dissent purports not to apply, post, at 36-37. 1*, How are the Equal Protection rights of public high school students affected by the jurisprudence of. This Court recognized as much in its opinion, which stated that the school board had an affirmative duty to disestablish the dual school system. McDaniel, supra, at 41. Therefore, even supposing interracial contact leads directly to improvements in racial attitudes and race relations, a program that assigns students of different races to the same schools might not capture those benefits. The dissent rests on the assumptions that these sweeping race-based classifications of persons are permitted by existing precedents; that its confident endorsement of race categories for each child in a large segment of the community presents no danger to individual freedom in other, prospective realms of governmental regulation; and that the racial classifications used here cause no hurt or anger of the type the Constitution prevents. At the time of Brown, v. Board of Education, 347 U. S. 483 (1954), Georgias Constitution required that [s]eparate schools shall be provided for the white and colored races. Ga. See, e.g., Columbus Bd. The Court rejected the interests asserted to justify the layoff program as insufficiently compelling. Fifty-three of the 125 studied districts used transfers as a component of their plans. at 309a; School Board Report, School Choices and Assignments 20052006 School Year (Apr. Accord, post, at 22 ([T]he Court set forth in Swann a basic principle of constitutional lawa principle of law that has found wide acceptance in the legal culture (citations and internal quotation marks omitted)); post, at 25 (Lower state and federal courts had considered the matter settled and uncontroversial even before this Court decided Swann); post, at 26 (Numerous state and federal courts explicitly relied upon Swanns guidance for decades to follow); post, at 27 (stating how lower courts understood and followed Swanns enunciation of the relevant legal principle); post, at 30 (The constitutional principle enunciated in Swann, reiterated in subsequent cases, and relied upon over many years, provides, and has widely been thought to provide, authoritative legal guidance); post, at 61 ([T]odays opinion will require setting aside the laws of several States and many local communities); post, at 66 (And what has happened to Swann? Pp. The record suggests, however, that the child in question was not assigned to the school he preferred because he missed the kindergarten application deadline. of Ed. Students may also apply to a magnet school or program, or, at the high school level, take advantage of an open enrollment plan that allows ninth-grade students to apply for admission to any nonmagnet high school. This is confirmed by the fact that Seattle has been able to achieve a desirable degree of diversity without the greater emphasis on race that drawing fine lines among minority groups would require. Some of the concurrence consists of social science citations and statistics showing that black students can succeed in majority black schools such as HBCUs. 1 operates 10 regular public high schools. This argument that different rules should govern racial classifications designed to include rather than exclude is not new; it has been repeatedly pressed in the past, see, e.g., Gratz, 539 U. S., at 282 (Breyer, J., concurring in judgment); id., at 301 (Ginsburg, J., dissenting); Adarand, supra, at 243 (Stevens, J., dissenting); Wygant, 476 U. S., at 316317 (Stevens, J., dissenting), and has been repeatedly rejected. The plans under reviewwhich are less burdensome, more egalitarian, and more effective than prior planscontinue in that tradition. The question was originally brought up by the Ninth Circuit independently of the parties (377 F.3d 949 at 958) and the School District has now adopted that argument as its own before the Court. The distinction between government and private action, furthermore, can be amorphous both as a historical matter and as a matter of present-day finding of fact. The District Court granted summary judgment to the school district, finding that state law did not bar the districts use of the racial tiebreaker and that the plan survived strict scrutiny on the federal constitutional claim because it was narrowly tailored to serve a compelling government interest. v. Detiege, 358 U. S. 54 (1958) (per curiam) (public parks); Gayle v. Browder, 352 U. S. 903 (1956) (per curiam) (buses); Holmes v. Atlanta, 350 U. S. 879 (1955) (per curiam) (golf courses); Mayor of Baltimore v. Dawson, 350 U. S. 877 (1955) (per curiam) (beaches). See Part IB, supra. The rights established are personal rights). 3 Seattle School Dist. At the time, however, Young Elementary was 46.8 percent black. The Seattle district, which has never operated legally segregated schools or been subject to court-ordered desegregation, classified children as white or nonwhite, and used the racial classifications as a tiebreaker to allocate slots in particular high schools. To use race in this way is not to set a forbidden quota. See id., at 335 (Properly understood, a quota is a program in which a certain fixed number or proportion of opportunities are reserved exclusively for certain minority groups (quoting Croson, 488 U. S., at 496)). So long as the plan is narrowly tailored, meaning that it uses the least restrictive means to obtain the benefits that flow from diversity and implements a plan that does not result in an impermissible quota, school districts can have some say in the racial make-up of their student body. See supra, at 45. in No. Parents Involved in Community Schools v. Seattle School District No. When the government classifies an individual by race, it must first define what it means to be of a race. It is not surprising to find a large number of different desegregation strategies in a sample with this much variation. Welch 23 (footnotes omitted). The first consists of the District Court determination in the Louisville case when it dissolved its desegregation order that there was overwhelming evidence of the Boards good faith compliance with the desegregation Decree and its underlying purposes, indeed that the Board had treated the ideal of an integrated system as much more than a legal obligationthey consider it a positive, desirable policy and an essential element of any well-rounded public school education. Hampton II, 102 F.Supp. These plans are unnecessarily crude solutions to the problem of school segregation, which can be achieved through more indirect means. Opposition to Writ of Certiorari at 20; Brief for Respondent at 16. McFarland I, 330 F.Supp. [28] He contrasted this circumstance to Grutter, where "the consideration of race was viewed as indispensable" in more than tripling minority representation at the law schoolfrom 4 to 14.5 percent. See post, at 6972. The district did not attempt to defend the proposition that anything outside its range posed the specter of exceptionality. Nor did it demonstrate in any way how the educational and social benefits of racial diversity or avoidance of racial isolation are more likely to be achieved at a school that is 50 percent white and 50 percent Asian-American, which would qualify as diverse under Seattles plan, than at a school that is 30 percent Asian-American, 25 percent African-American, 25 percent Latino, and 20 percent white, which under Seattles definition would be racially concentrated. The plans in both Louisville and Seattle grow out of these earlier remedial efforts. Are they to draw numbers out of thin air? How do the educational and civic interests differ in kind from those that underlie and justify the racial diversity that the law school sought in Grutter, where this Court found a compelling interest? Justice Thomas goes on to call out the dissent for adopting segregationist reasoning advanced in Brown, particularly its insistence that the Court should defer to local school board knowledge, expertise, and judgment. The same principles guide todays decision. The Chief Justice finally concludes his opinion by answering some of the issues raised by Justice Stephen Breyer in his dissent. of Jefferson Cty., 489 F.2d 925 (CA6 1973), vacated and remanded, 418 U. S. 918 (1974), reinstated with modifications, 510 F.2d 1358 (CA6 1974) (per curiam); Judgment and Findings of Fact and Conclusions of Law in Newburg Area Council, Inc. v. Board of Ed., of Jefferson Cty., Nos. A non-profit group, Parents Involved in Community Schools (Parents), sued the District, arguing that the racial tiebreaker violated the Equal Protection Clause of the Fourteenth Amendment as well as the Civil Rights Act of 1964 and Washington state law. 2d, at 360. Other amici dispute these findings. Parents Involved in Community Schools v. Seattle (2007) In 2003, the Supreme Court ruled in Gratz v. Bollinger and Grutter v. Bollinger that race-based classifications, as used in affirmative-action policies, must be "narrowly tailored" to a "compelling government interest," like diversity. 1, 149 Wash. 2d 660, 689690, 663, 72 P.3d 151, 166, 153 (2003) (en banc) (Parents Involved V). Both districts rethought their methods over time and explored a wide range of other means, including non-race-conscious policies. The plurality, or at least those who follow Justice Thomas color-blind approach, see ante, at 2627 (Thomas, J., concurring); Grutter, 539 U. S., at 353354 (Thomas, J., concurring in part and dissenting in part), may feel confident that, to end invidious discrimination, one must end all governmental use of race-conscious criteria including those with inclusive objectives. . Once those vestiges were eliminated, Jefferson County was on the same footing as any other school district, and its use of race must be justified on other grounds. See supra, at 4648. By way of contrast, I do not claim to know how best to stop harmful discrimination; how best to create a society that includes all Americans; how best to overcome our serious problems of increasing de facto segregation, troubled inner city schooling, and poverty correlated with race. Others have been more circumspect. 3:02CV00620JGH; Doc. schools in the last year the racial balancing program operated to the results in the 2004-to-2005 school year (in which student assignments But that distinction concerns what the Constitution requires school boards to do, not what it permits them to do. 205, 961 F.2d 1335, 1338 (CA7 1992) (Easterbrook, J.) Moreover, the effect of applying race-conscious criteria here affects potentially disadvantaged students less severely, not more severely, than the criteria at issue in Grutter. App. 2d 358, 359, 363, 370, 377 (WD Ky. 2000) (Hampton II). Preliminary Challenges, 1956 to 1969, Section 3. Respondent school districts voluntarily adopted student assignment plans that rely on race to determine which schools certain children may attend. 05915, at 97. See also ante, at 2223 (Thomas, J., concurring). After all, a number of school districts in the South that the Government or private plaintiffs challenged as segregated by law voluntarily desegregated their schools without a court orderjust as Seattle did. of Ed. 2002), but then withdrew its opinion, finding that the appeal turned on an unsettled question of state law which the state courts would best be able to answer in the first instance. It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with todays decision. Code 2.60.020 (2006), certified the state-law question to the Washington Supreme Court, 294 F.3d 1085, 1087 (2002) (Parents Involved IV). And during the same time, hundreds of local school districts have adopted student assignment plans that use race-conscious criteria. See, e.g., Swann, supra, at 2627; Montgomery Co. Bd. 1617. Id., at 464. 1. in . If there were doubts before Swann was decided, they did not survive this Courts decision. PICS argues, however, that the Seattle School District is doing just thatemploying racial balancing for the sole purpose of achieving racial diversity in its individual schools. See 377 F.3d 949, 10051006 (CA9 2004) (Parents Involved VI) (Graber, J., dissenting). 32 (2004); A Great Decision, Hindustan Times (New Dehli, May 20, 1954), p.5; USA Takes Positive Step, West African Pilot (Lagos, May 22, 1954), p. 2 (stating that Brown is an acknowledgment that the United States should set an example for all other nations by taking the lead in removing from its national life all signs and traces of racial intolerance, arrogance or discrimination). Sociological Rev., No. The Court reasoned that the Fourteenth Amendment's equal protection clause prohibited schools from voluntarily using racial classifications to achieve integration. As counsel who appeared before this Court for the plaintiffs in Brown put it: We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens. Tr. First, the race-conscious criteria at issue only help set the outer bounds of broad ranges. However, the question as to whether the constitution requires a local school board, or a State, to act to undo de facto school segregation is simply not here concerned. Although no such distinction is apparent in the Fourteenth Amendment, the dissent would constitutionalize todays faddish social theories that embrace that distinction. Justia Annotations is a forum for attorneys to summarize, comment on, and analyze case law published on our site. The Amendment sought to bring into American society as full members those whom the Nation had previously held in slavery. Id. Justice Breyers dissent takes a different approach to these cases, one that fails to ground the result it would reach in law. See, e.g., Brief for Appellees on Reargument in Davis v. County School Board, O.T. 1953, No. In design and operation, the plans are directed only to racial balance, an objective this Court has repeatedly condemned as illegitimate. The Current Plan: Project Renaissance Modified, 1996 to 2003. Contrary to what the dissent would have predicted, see post, at 3839, the children in Seattles African American Academy have shown gains when placed in a highly segregated environment. in No. . Each plan embodies the results of local experience and community consultation. Although the Supreme Court must find jurisdiction in order to give an opinion on the equal protection claims, it is uncertain whether the Court will address this question in much detail. Bd. See Regents of Univ. In 1973 a federal court found that Jefferson County had maintained a segregated school system, Newburg Area Council, Inc. v. Board of Ed. Although the matter was the subject of disagreement on the Court, see id., at 346347 (Scalia, J., concurring in part and dissenting in part); id., at 382383 (Rehnquist, C.J., dissenting); id., at 388392 (Kennedy, J., dissenting), the majority concluded that the law school did not count back from its applicant pool to arrive at the meaningful number it regarded as necessary to diversify its student body. Id., at 494. Although remedying the effects of past intentional discrimination is a compelling interest under the strict scrutiny test, see Freeman v. Pitts, 503 U. S. 467, 494, that interest is not involved here because the Seattle schools were never segregated by law nor subject to court-ordered desegregation, and the desegregation decree to which the Jefferson County schools were previously subject has been dissolved. The lesson of history, see ante, at 39 (plurality opinion), is not that efforts to continue racial segregation are constitutionally indistinguishable from efforts to achieve racial integration. Jefferson County also argues that it would be incongruous to hold that what was constitutionally required of it one dayrace-based assignments pursuant to the desegregation decreecan be constitutionally prohibited the next. See generally Washington v. Seattle School Dist. See Brief for Respondent at 13. 10266aa(b)(2) (2007). Cf. While the school districts use various verbal formulations to describe the interest they seek to promoteracial diversity, avoidance of racial isolation, racial integrationthey offer no definition suggesting that their interest differs from racial balancing. In other words, it is not desegregation per se that improves achievement, but rather the learning advantages some desegregated schools provide. Id., at 744. Reg. Second, since this Courts decision in Brown, the law has consistently and unequivocally approved of both voluntary and compulsory race-conscious measures to combat segregated schools. Not every decision influenced by race is equally objectionable, and strict scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the reasons advanced by the governmental decisionmaker for the use of race in that particular context. 539 U. S., at 326327. [4], The Parents Involved decision was a "split decision." In the administration of public schools by the state and local authorities it is permissible to consider the racial makeup of schools and to adopt general policies to encourage a diverse student body, one aspect of which is its racial composition. Middle and high school students are designated a single resides school and assigned to that school unless it is at the extremes of the racial guidelines. Compare, e.g., Green, 391 U.S., at 437438 (School boards operating state-compelled dual systems have an affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch), with, e.g., Milliken, 418 U.S., at 745 (the Constitution does not impose a duty to desegregate upon districts that have not been shown to have committed any constitutional violation). Today, however, the Court restricts (and some Members would eliminate) that leeway. . At the state level, 46 States and Puerto Rico have adopted policies that encourage or require local school districts to enact interdistrict or intradistrict open choice plans. in Briggs v. Elliott, O.T. 1952, No. How does one tell when a racial classification is invidious? as a matter of educational policy school authorities may well conclude that some kind of racial balance in the schools is desirable quite apart from any constitutional requirements. Then-Justice Rehnquist echoed this view in Bustop, Inc. v. Los Angeles Bd. The Court explained that [c]ontext matters in applying strict scrutiny, and repeatedly noted that it was addressing the use of race in the context of higher education. Grutter, supra, at 327, 328, 334. 05908, pp. See also Hanawalt 31; Pub. (a)Because racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification, Fullilove v. Klutznick, 448 U. S. 448, 537 (Stevens, J., dissenting), governmental distributions of burdens or benefits based on individual racial classifications are reviewed under strict scrutiny, e.g., Johnson v. California, 543 U. S. 499, 505506. 2002). 05915, Meredith, Custodial Parent and Next Friend of McDonald v. Jefferson County Bd. PICS counters that, far from accomplishing these lofty goals, the Districts plan is simply making trivial changes in pigmentation diversity in just a few of the schools that are actually imbalanced. of Oral Arg. One approach, reflected in the . More broadly, however, allowing racial diversity or balance as a compelling state interest, even if confined to secondary education, calls into question the Equal. The dissents persistent refusal to accept this distinctionits insistence on viewing the racial classifications here as if they were just like the ones in McDaniel, devised to overcome a history of segregated public schools, post, at 47explains its inability to understand why the remedial justification for racial classifications cannot decide these cases. Public Schools, 330 F.Supp. 05-915 v. JEFFERSON COUNTY BOARD OF EDUCATION et al. Pp. There must be at least 15 percent nonwhite students under Jefferson Countys plan; in Seattle, more than three times that figure. Kennedy argued that the government had an interest in ensuring racial equality: "The plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race.". As well, the District points out that it is no longer using the admission system that serves as the basis of this suit, and has not for several years, further demonstrating that any future injury is far from imminent. Rather, the Constitution creates a democratic political system through which the people themselves must together find answers. . Research J., No. In the pages following the ones the dissent cites, the author of that article remarks that the main reason white and minority students perform better academically in majority white schools is likely that these schools provide greater opportunities to learn. Even if the district maintains the current plan and reinstitutes the racial tiebreaker, Seattle argues, Parents Involved members will only be affected if their children seek to enroll in a Seattle public high school and choose an oversubscribed school that is integration positivetoo speculative a harm to maintain standing. 2002); Brief for Armor etal. See Gratz, supra, at 301 (Ginsburg, J., joined by Souter, J., dissenting); Adarand, supra, at 242249 (Stevens, J., joined by Ginsburg, J., dissenting); 426 F.3d, at 11931194 (Kozinski, J., concurring). While the Court does not suggest that greater use of race would be preferable, the minimal impact of the districts racial classifications on school enrollment casts doubt on the necessity of using such classifications. In Jefferson County, by contrast, the district seeks black enrollment of no less than 15 or more than 50 percent, a range designed to be equally above and below Black student enrollment systemwide, McFarlandI, 330 F.Supp. In 1963, the transfer programs first year, 239 black students and 8 white students transferred. That is particularly true given that, when Swann was decided, this Court had not yet confirmed that strict scrutiny applies to racial classifications like those before us. The only counter argument in the record is the Ninth Circuits resolution of the question. v. Seattle Sch. At the same time, it is urged that these laws are valid as a matter of constitutionally permissible social experimentation by the States. Perhaps the best example is provided by our approval of the decision of the Supreme Judicial Court of Massachusetts in 1967 upholding a state statute mandating racial integration in that States school system. 1, p.5 (The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race and color alone);[Footnote 20] see also In Memoriam: Honorable Thurgood Marshall, Proceedings of the Bar and Officers of the Supreme Court of the United States, X (1993) (remarks of Judge Motley) (Marshall had a Bible to which he turned during his most depressed moments. "[13], Roberts noted that prior Supreme Court cases had recognized two compelling interests for the use of race. 05915, at 7 (quoting McFarland I, supra, at 842). 1 1991 Memorandum 14, 711 (Stipulated Exh. Id. Franklin was integration positive because its nonwhite enrollment the previous school year was greater than 69 percent; 89 more white students were assigned to Franklin by operation of the racial tiebreaker in the 20002001 school year than otherwise would have been. . Although the Court has certified three separate questions in this case, all three questions essentially involve the same inquiry: in light of the Courts rulings in Grutter and Gratz, does the Seattle School Districts use of race in high school admissions violate the Equal Protection Clause? This plan labeled racially imbalanced any school at which the percentage of black students exceeded by more than 20% the minority population of the school district as a whole. The histories that follow set forth these basic facts. For example, at Franklin High School in Seattle, the racial tiebreaker was applied because nonwhite enrollment exceeded 69 percent, and resulted in an incoming ninth-grade class in 20002001 that was 30.3 percent Asian-American, 21.9 percent African-American, 6.8 percent Latino, 0.5 percent Native-American, and 40.5 percent Caucasian. But that cost does not approach, in degree or in kind, the terrible harms of slavery, the resulting caste system, and 80 years of legal racial segregation. 05908, at 162a. PICS did not respond to this argument in either of its reply briefs. 05908, at 299a301a; Affidavit of Kathleen Brose Pursuant to this Courts Rule 32.3 (Lodging of Petitioner Parents Involved), and the complaint sought declaratory and injunctive relief on behalf of Parents Involved members whose elementary and middle school children may be denied admission to the high schools of their choice when they apply for those schools in the future, App. Moreover, Parents Involved also asserted an interest in not being forced to compete for seats at certain high schools in a system that uses race as a deciding factor in many of its admissions decisions. Ibid. In most cases, there either will or will not have been a state constitutional amendment, state statute, local ordinance, or local administrative policy explicitly requiring separation of the races. The districts offer no evidence that the level of racial diversity necessary to achieve the asserted educational benefits happens to coincide with the racial demographics of the respective districts, or rather the districts white/nonwhite or black/other balance, since that is the only diversity addressed by the plans. For example, where does the dissents principle stop? See T. Sowell, Education: Assumptions Versus History 738 (1986). In Brown, this Court declared that segregation was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. The two children were denied their first, second, and third choice schools, and consequently assigned to Ingraham High School. United States v. Fordice, 505 U. S. 717, 749 (1992) (Thomas, J., concurring). v. Penick, 443 U. S. 449, 455, n.3 (1979); Davis v. Board of School Commrs of Mobile Cty., 402 U. S. 33, 3738 (1971); Green v. School Bd. students in Primary 1); see also Stipulation of Facts in No. And the design of particular plans has been dictated by both the law and the specific needs of the district. Ibid. 7045 and 7291, (WD Ky., June 16, 1978), pp. 149 through 154 (Dec. 8, 2003). Parents Involved VI, 377 F.3d 949 (2004). See supra, at 27. The Supreme Court's 5-4 vote on the matter of desegregation and equal access to educational opportunity signals that a divide exists in the United States with respect to the underlying educational values of excellence and .

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