Parents Involved in Community Schools v. Seattle School District No. 1

SCHOOLS IN COMMUNITY PARENTS INVOLVED 1 ET AL. NO. DISTRICT SEATTLE SCHOOL 2007* No. June 05-908. December 2006 Decided Argued Meredith, Next Parent and * Together 05-915, with No. Custodial al., et Education Board County Friend McDonald v. Jefferson Circuit. for the Sixth Appeals the United certiorari States Court Roberts, J., judgment C. of the Court and delivered announced III-A, opinion respect I, II, C, and in which with Court Parts III— Scaua, Thomas, Kennedy, Auto, JJ., joined, opinion and and an with Auto, IV, Scaua, Thomas, to Parts III-B JJ., respect in and and which Kennedy, joined. Thomas, J., concurring p. 748. opinion, post, filed a J., concurring post, an in the opinion concurring part judgment, filed in and Breyer, J., Stevens, dissenting p. 798. p. J., opinion, post, filed Souter, Ginsburg, JJ., Stevens, dissenting which and opinion, filed joined, post, p. 803.

Harry J. F. Korrell for petitioner the cause argued Daniel B. Ritter No. 05-908. With him on briefs were Teddy B. B. and Eric Gordon argued Martin. the cause and for in No. filed briefs 05-915. petitioner Clement argued for the Solicitor General the cause amicus curiae urging in both reversal United States as Attorney Assistant With cases. him on briefs were Deputy Kim, Garre, B. David General Solicitor General Angela Flynn, Salmons, Miller, and Kent D. M. David K. Talbert.

Michael Madden argued for respondents the cause Janes, Carol Sue 05-908. were No. him on the brief With Audrey Anderson, J. Sneed, Borkowski, Maree F. John W Schnapper. Gary Eric L. Ikeda, McMinimee, Shannon and Mellen, Jr., J. Francis for respondents the cause argued With Leet No. 05-915. him on the brief were Byron E. and Miller.† Rosemary announced the judgment

Chief Justice Roberts Court, and delivered the opinion the Court with respect II, I, Parts III-A, C, and an with opinion respect III—

† Briefs amici curiae urging reversal both cases were filed for the by Sharon L. Browne J. Legal Foundation al. Paul Beard Pacific et II; Rein; Bert W. Project Representation by for Fair et al. for Lynn, Massachusetts, by Various School Children from Michael Williams Darling; Driscoll; and Chester N. Robert David J. Armor et al. Woodring, J. for Governor Raquel al. Daniel by John Ellis “Jeb” Bush et Rodriguez, and Nathan A Adams IV. A

Briefs of amici curiae urging reversal No. 05-908 filed were for the Center for E. Rights by Individual Michael Rosman and Erik S. Jaffe; Bader; Competitive for the Hans Enterprise by Institute for the Mountain Perry Pendley; Foundation William Legal by States and for Dr. John Murphy et John R. Munich. by al. of amici curiae

Briefs urging affirmance both cases were for filed Reilly, Attorney of Thomas F. by Commonwealth Massachusetts General Massachusetts, Hitt, of and Richard W.Cole and John R. Assistant Attor- General; neys Spitzer, for the of Eliot by State New et Attorney York al. J. Halligan, York, General, Caitlin General of Michelle Aro- New Solicitor nowitz, Deputy Laura General, R. Johnson H. Solicitor and Diana R. and Winters, Ramos, General, Assistant Roberto J. Sanchez by Solicitors Sec- retary Rico, of of by Attorneys Justice Puerto and General for their jurisdictions respective as follows: Richard Blumenthal of Connecticut, J. Spagnoletti Robert Columbia, Madigan Lisa Illinois, of the District of of Iowa, Greg Thomas Miller of Stumbo G. Rowe Kentucky, of Steven of Curran, Jr., J. Joseph Maine, (Jay) Maryland, of Jeremiah IV Nixon Missouri, Stuart Rabner of New Patricia A Madrid of New Mex- Jersey, ico, Roy Cooper Carolina, Hardy Myers of North of Oregon, Patrick Lynch Island, Utah, of Rhode Mark L. William H. Sorrell Shurtleff Vermont, Peggy Rob McKenna and A Lautenschlager Washington, Wisconsin; for the et al. by Dennis D. American Civil Liberties Union Parker, Reginald Hansen, Shuford, T. Christopher R. Sha- A and Steven piro; for Boudett, by the American Michael P. et al. Council Education Richlin, Toone; Dean and Robert E. American Educational Re- for Ancheta; search Association Angelo N. by Psychological for the American Payton, Ogden, W. F. P. by John David Gil- Association et Nathalie al. foyle, Lindsay and Childress-Beatty; for League by Anti-Defamation in which Justice IV, to Parts III-B and Scalia, Justice and Justice join. Alito Thomas, stu- cases voluntarily adopted in these

The school districts to determine race dent rely upon plans assignment Lawrence, Jona- M. Chemerinsky, Frederick Karlinsky, Martin E. Erwin Goldstein, C. Baum, Freeman, Steven Howard W. than K. M. and Steven Mark A Pack- Sheinberg; for by et Center al. the Asian American Justice man, Cohen, Narasaki, Eng; M. Vincent for the Jonathan Karen and Wolin- al. Marc by Legal Asian American Defense and Education Fund et sky Kimerling; City the Bar of the Kenneth for the Association of Rush; Jonathan I. Blackman and David York for the Black by New E. Sharon Inc., Lawyers’ by Women Chicago, Association of Greater Jones; S. Parker Warrington by Center al. for the Brennan for Justice et III, Harth; Goldberg, Deborah J. Structural and David for the Caucus for Shulman; Daniel R. Uni- Equity by Rights the Civil Clinic at Howard for Bellegarde Francois; School of Law Aderson versity by for the Coalition Action, Integration, to Defend Immigrant Rights Fight Affirmative & (BAMN) George B. Wash- By for Equality Any Necessary Means by et al. ington; Terrence J by for the et al. Collaborative of Catholic Leaders Fleming; Wright Julie by for the Council of the Schools et al. City Great Harris; Greenberg; Halbert and Pamela Jack by for Historians for Histo- Wells, Jr., and David W. Theodore V Rights by rians of the Civil Era Brown; Leeuw; B. for Housing Michael de by Scholars et al. for Interested Davis; Rights Human Cynthia J. Larsen F. Clinics et al. and Martha Sen; by John D. Diana S. Organizations Latino Trasvina for the Lawyers’ by Rights Bay Committee for Civil of the San Francisco Area Rubin; Steven A. Hirsch and Robert Leadership for the Conference Osolinik, Pincus, Carolyn J. and William et al. Andrew P. Rights Civil by L. Taylor; for the Massachusetts Association of School Superintendents Hayes Courtland et Joseph Leghorn; Dennis by al. the NAACP by for Bansal; and Preeta D. Fund, Legal for NAACP Defense & Educational Shaw, Inc., Berrien, Chachkin, Theodore M. Jacqueline A. Norman J. by Bolden, Q. Le, Victor A Chinh T. Goldberg; David and for the National Keane; by Margaret Collegiate Athletic Association et al. A the Na- for Chanin, H. Robert Jonathan P. tional Education Association by et al. Hiatt, Strom, Becker, Craig Mincberg, Harold David Elliot Alice O’Brien, and Larry Weinberg; for Teacher Associa- the National Parent Adams; Rachel D. Godsil and by Michelle tion for the School National Goldstein, Boards Negron, Thomas Francisco M. by Association et al. C. Small; and Michael C. by for the National Women’s Center et al. Law Dellinger, Davies, Walter Mark S. D. Saharsky, Nicole A Marcia Green- attend. Seat- which schools certain children may public nonwhite; as white or school district classifies children tle or as black “other.” In the Jefferson school district County Seattle, to allocate this racial used slots classification oversubscribed Jefferson it is used County, schools. In high to make and rule certain school assignments elementary school case, on transfer district relies each requests. an that student individual race upon assigning student’s to a that the racial balance at the school, so particular falls within a based on the com- predetermined range of the school district position as whole. Parents of stu- dents denied schools under assignment particular these berger, Samuels, Lassow, Jocelyn Lichtman; R. L. Dina Judith and for Russell, Jr.; I Religious Organizations William by et al. for the Swann Earls, Chambers, Anita S. L. Fellowship by Julius etal. Daye, Charles E. Boger; and John Charles for Former United States Secretaries of Educa- III, Days Brinkmann, tion et al. Drew S. Beth S. by Galanter; M. Seth Roe; for the Urban Rebecca League Metropolitan al. by J. Seattle et for Alexander, Jr., the Honorable Clifford L. Franklin; et Jonathan S. by al. Liu, for Kennedy Senator Edward M. et al. Andy David L. Haga, Lau- by Malson, rel Pyke Nolan; and Beth for Representative Jim McDermott Weissman; William R. by al. et Amy for al. Kenneth Stuart et by Wells Heath; D. for 19 Former Chancellors of University by California Liu; for Goodwin Garces; Liliana M. by 553 Social Scientists and for Walt by Sherlin Martha Melinda Lawrence. Briefs of amici curiae urging affirmance in No. 05-908 were filed for Burman, by et David J. Alliance for al. Hoge, Michael W. Education Mullin; and J. Shan Angeles for the Los Peter Unified by School District James; W. Lawyers and for the National Gespass David by Guild Zachary Wolfe. amici curiae Briefs urging affirmance in No. 05-915 filed were Rights Human Weissbrodt; Advocacy Groups et al. David by for the Louis- (d/b/a ville Commerce, Area Chamber of Inc. Inc.), Greater Louisville Bush; John K. by et al. and for the Prichard Committee for Aca- demic Snyder, G. Sheryl Amy D. Cubbage, by Excellence Phillip J. Shepherd.

Briefs of amici curiae were filed in both cases for the Asian American Fauth, Jr.; Legal Gordon M. by Foundation for Media & Telecommunica- Taylor; G. tion Cos. by Elizabeth Robert Joseph and for E. Brann al. et N. Weiner and Richard Jerome. suit, of their race brought contending because plans solely to different schools on public children allocating Amendment basis of race violated the Fourteenth guarantee below upheld The Courts Appeals equal protection. now certiorari, reverse. We plans. granted I Both cases the same legal question— present underlying whether a had not school that public legally segre- operated schools or found to be choose gated unitary has been may students race that classification classify rely upon school we examine the making assignments. Although under the same plans framework, legal specifics two and the circumstances their plans, surrounding adoption, are in some different. respects quite

A Seattle School District No. operates regular public high 1998, schools. issue adopted plan case for students these assigning schools. App. 90a-92a,1 No. 05-908, pp. ninth allows plan incoming to choose graders from of the district’s among any high schools, however schools ranking wish in many order they of preference.

Some schools more are than others. If popular too many students list the same school as their first choice, the district series “tiebreakers” to determine will fill employs who slots at the open oversubscribed school. The first tie- breaker selects for admission students who have a sibling 1The plan 1999-2002, was in effect from for three years. school This litigation 2000, was commenced in July and the record in the District Court was closed before for the assignments year 2001-2002 were school 05-908, made. See Brief for Respondents p. rely, No. n.' 9. We courts, the lower largely did from on data the 2000-2001 year (CA9 2005) (en banc) evaluating the plan. 426 P. 3d 1169-1171 (Parents VII). Involved 712

currently in the school. The next chosen tiebreaker enrolled composition particular depends upon the racial the school pub- student. In the and the of the individual district’s race percent approximately 41 lic schools enrolled students are remaining percent, comprising 59 all other white; racial groups, assignment purposes are classified Seattle for Id., 38a, If nonwhite. 103a.2 an is oversubscribed school percentage points of 10 district’s not within overall balance, it is what the white/nonwhite racial district calls “integration positive,” employs and the district a tiebreaker assignment that selects for students race “will whose serve bring Id., school into balance.” at 38a. See Parents (CA9 2005) (en VII, Involved 1162, F. 3d 1169-1170 banc).3 necessary If still to select students for the using after school tiebreaker, racial the next tiebreaker geographic proximity is the of the school to the student’s App. residence. 05-908, No. at 38a. operated segregated Seattle has legally never schools—

separate schools for students of different races—nor has it subject ever desegregation. been to court-ordered It none- employs attempt theless racial tiebreaker in an ad- racially housing dress patterns the effects of identifiable assignments. school Most white students live in the north- part ern of Seattle, most students of other back- grounds part. in the southern supra, VII, Parents Involved at 1166. high Four of Seattle’s schools are located in the Ballard, Ingraham, Hale, Nathan and Roosevelt— north — and five in Beach, the south—Rainier Cleveland, West Seat- 2The racial breakdown group approximately nonwhite 23.8 percent Asian-American, percent African-American, 23.1 percent 10.3 La tino, percent and 2.8 Native-American. F. 3d 1005-1006 (CA9 2004) (Parents VI) (Graber, J., Involved dissenting). 3For the 2001-2002 year, permitted the deviation from de sired racial composition percent. was'increased from 10 App. 05-908, No. p. 38a. The bulk of the data in the using record was collected supra. percent band, the 10 see n. school—Garfield—is One tie, Sealth, and Franklin. Chief 05-908, in No. of Seattle. center App. more or less 38a-39a, 45a. were schools five of these For the 2000-2001 school year, Garfield, Roosevelt, Hale, Ballard, Nathan oversubscribed — ninth incoming Franklin —so much so percent Id., as their first choice. ranked one these schools graders schools were “integra- Three of the oversubscribed 38a. the white enrollment pre- tion because the school’s positive” Na- vious school was than 51 percent Ballard, greater year — Thus, more students Hale, than and Roosevelt. nonwhite three of these who selected one (107,27, and respectively) than school schools as a choice received at the top placement considered, not the race been would have been case had Id., at 39a-40a. been the next tiebreaker. proximity en- because its nonwhite Franklin was “integration positive” than 69 rollment the school was per- previous year greater cent; white Franklin 89 more students were assigned by of the tiebreaker in the school operation racial 2000-2001 Ibid. was than otherwise have been. Garfield year would the during the oversubscribed school whose only composition al- 1999-2000 within the school was racial guidelines, year had been enrollment though previous years pre- Garfield’s nonwhite, racial and the tiebreaker had been dominantly Id., at used to to white students. 39a. give preference (Par- Petitioner Parents Involved Schools Community Involved) ents par- corporation comprising nonprofit be denied assignment ents of children who have been or may of their chosen the district because their school in high Involved illustrated race. concerns of are Parents Jill who Kurfirst, son, her to enroll sought Andy ninth-grade Meeks, in Ballard Ca- Biotechnology School’s High special reer from attention deficit Andy hyper- suffered Academy. disorder and but had made good progress activity dyslexia, school middle instruction, hands-on and his mother and with teachers that the smaller biotechnology program thought

held most his continued success. was promise Andy ra- but, into this selective because of the accepted program tiebreaker, cial was denied Ballard High assignment Id., Parents Involved 143a-146a, School. 152a-160a. suit commenced this in the District Western Washington, use Seattle’s of race violated alleging assignments Protection Clause Amendment,4 of the Fourteenth Equal Civil 1964,5 Title VI Act of and the Washington Rights Id., Civil Act.6 28a-35a. Rights The District Court to the granted summary judgment district, state law did bar the finding district’s use of the tiebreaker and that the survived strict plan on the federal scrutiny constitutional claim because it was tailored to narrowly serve a government interest. compelling (WD (Parents 2001) F. 2d Supp. Wash. In- I). volved The Ninth Circuit reversed based its initially interpretation Act, Civil 285 F. 3d Rights Washington (.Parents (2002) 1236, 1253 II), Involved enjoined district’s use id., tiebreaker, integration Upon would not realizing litigation be resolved time for for assignment decisions the 2002-2003 school year, the Ninth (2002) Circuit withdrew its 294 F. opinion, 3d 1084 {Parents Involved the III), and, vacated injunction, pursuant to Wash. §2.60.020 Rev. (2006), Code certified the state-law question Court, 294 Washington Supreme 1085, F. 3d (2002) IV). 1087 Involved {Parents 4“No any State deny person jurisdiction shall... within its equal protection § Const., 14, the laws.” U. S. Arndt. 5“No person shall, in the ground United on the States be race ... of, denied the or subjected benefits be to discrimination any pro under gram or activity receiving 252, financial assistance.” Federal 78 Stat. 42 §2000d. U. S. C. 6“The state against, shall not or grant preferential discriminate treat to, any race, ment sex, color, or group ethnicity, individual on the basis of or national in the origin operation employment, education, of public public §49.60.400(1) or public (2006). contracting.” Wash. Rev. Code

715 determined The Court Supreme Washington treatment Act bars pro State Civil only preferential Rights to select “where race or is used government grams gender less over a more applicant,” qualified qualified applicant neutral, such not are racially which “[programs in Commu Parents Involved choice plan.” [district’s] open Dist., No. 660, 1, 149 Wash. 2d Schools v. Seattle School nity banc) (Parents (2003) (en 689-690, 663, 151, 166, 153 72 P. 3d V). Involved case to the Ninth state returned the court Id., 3d, at 167. 690, P. Circuit further proceedings. Dis- A then reversed the Circuit Ninth panel again on the federal constitutional Court, trict this time ruling (2004). The VI, 377 F. Parents Involved 3d question. that while racial achieving determined panel diversity inter- isolation are avoiding compelling government ests, id., of the racial tiebreaker was 964, Seattle’s use id., at 980. The interests, tailored to achieve these narrowly en 395 F. banc, Ninth Circuit 3d rehearing granted (2005), and the Dis- decision, overruled affirming panel was trict Court’s determination Seattle’s narrowly plan interest, Parents tailored to serve a compelling government VII, certio- Involved We 3d, 426 F. at 1192-1193. granted (2006). rari. 547 U. S. 1177

B school Jefferson Public operates public Schools County In 1973 a fed- Louisville, Kentucky. system metropolitan eral court maintained a seg- found had County Jefferson Council, Inc. v. Board Area system, Newburg regated Ed. vacated (CA6), 2d 925, Cty., 489 F. Jefferson modifications, remanded, with 418 U. reinstated S. (CA6 2d the District 1974), 510 F. and in 1975 Hampton entered a decree. See Court desegregation Jef- (WD Ky. Ed., Bd. 2d 762-764 Cty. 753, 72 F. Supp. of ferson 1999). decree until this Jefferson under County operated after decree the 2000, when the District dissolved Court 716 that the status elimi- -unitary district had achieved by

finding the of extent greatest nating vestiges “[t]o practicable” of v. its policy Cty. prior Hampton segregation. Jefferson (2000). Ed., Bd. F. See Board 358, 102 2d 360 Supp. of of Dowell, 498 S. Ed. Oklahoma Public Schools U. City 237, Bd. New (1991); 249-250 Green v. School Kent Cty., (1968). 430, U. S. 435-436 after had been dissolved, decree Jefferson student adopted voluntary at County assignment plan 05-915, issue in case. in No. 77. p. App. Approxi- 97,000 the district’s students are black; mately percent most are white. remaining percent McFarland v. Schools, Public Cty. 2d F. Supp. 839-840, Jefferson and (WD 2004) (McFarland I). 6n. Ky. The plan requires all schools to maintain a minimum nonmagnet black enroll- ment of 15 and a percent, maximum black enrollment 05-915, percent. App. 81; I, No. McFarland supra, at 842.

At the school level, based on his or her elementary ad- dress, each student a designated “resides” school to which students within a are specific area ele- geographic assigned; resides schools are mentary into “grouped clusters order to facilitate integration.” No. App. 05-915, 82. The district students assigns nonmagnet schools one of two Parents ways: first kindergartners, graders, students new to the district submit an may application indicating first and second choice the schools within their among clus- ter; students who do not submit such an are application within assigned the cluster district. “Decisions students each assign schools within cluster are based available within space the schools and the racial guidelines in the District’s current student assignment Id., at plan.” If a school has reached “extremes of the racial guidelines,” student whose race would contribute school’s racial will imbalance not be assigned Id., there. 38-39, 82. After students at all assignment, levels grade between nonmagnet transfer are permitted apply for be may requested any Transfers in the schools district. because of lack of be denied and reasons, may number Id., of the racial guidelines. available or on the basis space at 43.7 moved the school into

When Meredith Crystal petitioner son, her Joshua she enroll district in sought August school year. for the 2002-2003 McDonald, in kindergarten but it home, from his new a mile His resides school was only in made May, had no had been available space assignments — Joshua to Jefferson assigned the class was full. County cluster, his Elementary. another school in Young elementary home, sought This was miles and Meredith school from cluster, Bloom different to transfer Joshua to a school a mile school —was which —like his resides only Elementary, I, 1-54 from home. See Tr. McFarland 1-49 through pp. (Dec. 2003). Bloom, was and interclus- available Space nonethe- was allowed, ter are but Joshua’s transfer transfers “[t]he of Jefferson because, County, less denied in the words com- an effect transfer would have adverse on desegregation at 97.8 05-915, in No. App. pliance” Young. of Ken- District suit Western

Meredith brought Protection Clause violations Equal tucky, alleging found that The Court District Fourteenth Amendment. interest main- Jefferson had asserted compelling County single designated a resides school high Middle and are school students guide the extremes the racial to that is at assigned school unless it or, program, at the magnet school or may apply lines. to a Students also plan that allows level, open of an enrollment high advantage take high school. any nonmagnet ninth-grade apply students admission 39-41, 05-915, 82-83. pp. No. App. applied to Joshua’s It is were even why guidelines not clear the racial kinder apply at the application guidelines supposedly transfer do —the Id., however, Joshua’s disputes, party level. at 43. Neither garten and Meredith’s guidelines, denied application was under transfer that race but rather misapplied were guidelines is not that objection all. was used that the diverse

taining schools, racially assignment plan (in was all tailored to relevant serve that narrowly respects) I, 837.9 supra, interest. McFarland compelling curiam opinion upon Sixth Circuit affirmed in a relying per Court, that a concluding written of the District reasoning v. no useful McFarland “would serve purpose.” opinion Jef (2005) (McFar 513, 514 Schools, 416 F. 3d Public Cty. ferson II). (2006). land We certiorari. 547 U. 1178 S. granted

II matter, As threshold we must assure ourselves of our that Parents jurisdiction. Seattle Involved argues lacks because none of its current can standing members claim an imminent if Even the district injury. maintains the current and reinstitutes the racial plan tiebreaker, Seattle argues, Parents Involved members will be affected if only their chil- dren in seek to enroll a Seattle school public and choose high an oversubscribed school that is integration positive —too a harm to maintain speculative Brief for Re- standing. in 05-908, spondents No. 16-17. pp.

This argument unavailing. members group’s have children in the district’s middle, elementary, and high schools, in No. 05-908, at App. 299a-301a; Affidavit of Kath- Brose leen Pursuant this Court’s Rule 32.3 (Lodging Petitioner Involved), Parents and the de- complaint sought relief claratory injunctive on behalf of Parents Involved members whose elementary and middle school children may be “denied admission to the schools of high their choice when for they those schools in the apply future,” in App. No. 05-908, 30a. The fact that it is that possible children will group members not be denied admission ato 9 joined Meredith a pending lawsuit filed plaintiffs. several other id., plaintiffs at 7-11. The other all challenged assignments to certain specialized schools, and the District Court found these assignments, which case, are no longer at I, issue this unconstitutional. McFarland (WD 2004). 834, 837, F. Supp. Ky. 2d choose an undersub they race —because based their which their school in oversubscribed or an scribed school claimed. not eliminate injury an race is advantage —does an interest also asserted Moreover, Involved Parents schools at certain seats high for compete “forced being its factor many a deciding uses race as system held, one form As we have Ibid. admissions decisions.” forced Clause is being under the Protection injury Equal that may in a prejudice plain race-based compete system Peña, Inc. v. 200, 211 Constructors, Adarand U. S. tiff, Contrac Fla. Associated Gen. Northeastern (1995); Chapter, an Jacksonville, (1993), tors America 508 U. S. can validly of Parents Involved members injury claim on of their behalf children. it has also

16-17. But the district defends vigorously of its tionality race-based nowhere suggests program, that if is in favor it will not resume its litigation resolved race to not cessation does students. using assign Voluntary moot a or events case unless “subsequent ma[ke] controversy it that could clear behavior wrongful absolutely allegedly Earth, Friends Inc. recur,” be to reasonably expected Inc., (TOC), Laidlaw Services v. 528 Environmental S. U. (2000) v. Concentrated Phos (quoting United States 167, 189 Assn., phate Export Inc., 393 U. S. 199, (1968); 203 internal marks burden has quotation omitted), a that Seattle heavy not met. clearly our Tr. of County jurisdiction,

Jefferson does not challenge we 48, Oral No. but are nonetheless Arg. 05-915, obliged p. Y H & to ensure exists, that 546 Corp., v. U. S. Arbaugh (2006). 500, 514 now Joshua has been Although apparently a transfer school to which Bloom, the transfer granted under the Tr. of Oral was denied racial Arg. guidelines, at all 05-915, 45, No. racial apply grade guidelines 720 Joshua’s

levels. enrollment Upon school, middle he may be again subject based his assignment race. In addi tion, Meredith damages her which sought complaint, is our sufficient to consider the preserve ability question. Angeles Lyons, Los (1983). v. 461 95, 109 U. S.

Ill A It is well established that when the distrib government utes burdens or benefits on the basis of individual clas racial sifications, is aetion reviewed under strict scrutiny. Johnson California, Grutter v. 499,505-506 (2005); U. S. Bollinger, supra, v. Adarand, 539 U. (2003); S. 224. As the Court reaffirmed, recently “‘racial classifica tions are too simply pernicious but the most permit any exact connection between and classification.’” justification Bollinger, Gratz (2003) Fulli v. U. S. (quoting Klutznick, love (1980) U. 448, 537 J., S. dis (Stevens, omitted). brackets senting); order to this search satisfy standard of the school must ing review, districts demonstrate use individual classifications the as signment here under review plans tailored” “narrowly Adarand, to achieve a interest. “compelling” government supra, at 227.

Without in these cases set forth all the in- attempting terests school assert, district it suffices to might note that our eases, in use prior of racial evaluating classifications in the context, have two interests recognized The first qualify interest compelling. compelling the effects of intentional remedying past discrimination. Pitts, See Freeman v. (1992). 467, 503 S. 494 Yet U. the Se- attle schools have not shown that public were ever they seg- law, regated and were by not court-ordered subject deseg- regation decrees. County The Jefferson schools were public previously and were a by law segregated subject desegre- in gation 2000, decree entered 1975. the District Court that entered that decree dissolved that Jefferson it, finding

721 for- with the associated the “eliminated vestiges had County effects,” and its pernicious mer of policy segregation Hampton, F. 102 Supp. status. achieved “unitary” thus had does not rely upon 2d, accordingly County at 360. Jefferson dis- of intentional in the effects past an interest remedying use of race in its assigning crimination in present defending 05-915, students. See Oral No. Arg. Tr. of the Nor it. harm being could We have emphasized is harm the desegregation remedied by plans mаndatory not “the is traceable to Constitution segregation, schools, without more.” violated by imbalance Bradley, (1977). Milliken v. n. 14 267, 280, U. S. See 433 supra, Freeman, Dowell, 248; 498 S., at 495-496; also U. Bradley, (1974). Milliken v. 717, 418 U. S. 746 Once Jef- had status, ferson achieved remedied unitary County constitutional that allowed race-based assignments. wrong must on some other continued use of race be Any justified basis.10

10 point prior sug The districts in a in which Court opinion to dicta that, mandated, gested constitutionally while it would be constitution ally schools as permissible racially district balanced a school seek Charlotte-Mecklenburg Bd. Swann matter of v. policy.” “educational Ed., (1971). 1, quote approval U. also an 402 S. with 16 districts then-justice opinion Rehnquist suggestion made a in-chambers in which Ed., Angeles Inc. v. Bd. U. S. Bustop, Los to the same effect. See (1978). 1380, 1383 significance do not the districts carry The citations Swann, engaged would ascribe to a school district evaluating them. consider a dis court-ordered had no whether desegregation, occasion of a in the voluntary assignments trict’s of race-based absence adoption jure de constitutionally an permissible, finding prior segregation was School Washington Seattle again expressly that was reserved issue (1982). addressing in Bustop, U. Dist. No. 457, 472, S. n. busing plan imposed emergency application

context of an injunction unavailing. Superior Angeles County, similarly Court of Los relief, Rehnquist, “equi stressed that denying Then-Justice emergency S.,U. relief. 439 against preliminary table counseled consideration^]” merits are propriety preliminary 1383. The relief and resolution v. Camen University Texas “significantly of course different” issues. isch, (1981). S.U. 722

The second we government interest have as recognized for of strict is the compelling purposes interest in scrutiny Grutter, in education in 539 diversity higher S., at upheld U. Grutter was The interest found specific compelling student “in the context of education.” body diversity higher Ibid. not on diversity interest was focused alone race but “all contribute encompassed factors that to student may Id., body diversity.” at 337. We described the various of that the types diversity law school sought: law “[The makes clear there are school’s] policy many admissions, bases ex- possible provides diversity of admittees who have or amples lived traveled widely abroad, are fluent in several have overcome languages, personál adversity have hardship, family excep- tional of records service, extensive and have community Id., had successful careers in other fields.” at (brackets omitted). and internal marks quotation The Court the articulation of quoted from Justice diversity Regents Bakke, Univ. Cal. Powell’s opinion of U. (1978), S. 265 “it is not an noting interest simple ethnic a which diversity, the stu specified percentage dent is in effect be body to members of guaranteed selected Grutter, ethnic that can the use of groups, race.” justify supra, supra, Bakke, 324-325 (citing quoting at 314- Powell, J.); brackets and (opinion internal quotation omitted). Grutter was marks Instead, what was upheld consideration far array “a broader qualifications and characteristics of which or ethnic origin racial is but a single S., 539 U. though important element.” at 325 (quoting supra, Bakke, of Powell, J.); internal (opinion quota omitted). tion marks in Grutter was that

The entire gist analysis admissions issue there focused each program applicant as an individual, and as a member simply particular The classification of race group. applicants upheld in Grutter was holis- individualized, of “highly part only theAs Court “[t]he at 337. review,” S., explained, tic 539 U. in the context consideration individualized importance of a paramount.” race-conscious admissions program Ibid. in which tailoring analysis The of the narrow point Grutter Court engaged to ensure that the use was of a assessment racial broader classifications was indeed part bal- an effort achieve simply not diversity, uncon- ance, be which the would “patently explained Court Id., stitutional.” at 330. is not as contrast, race considered cases, by present di- widely of a broader effort achieve “exposure

part ibid.; race, for cultures, verse ideas, and viewpoints,” people, The dis- students, some is determinative alone. standing as student factors, tricts that other such preferences, argue each their but under affect decisions under plans, assignment It is it is itself. by when race comes into decisive plan play, a deci- not one factor with others reaching weighed simply Grutter; sion, University it is factor. Like the as Gratz, 539 struck down Michigan undergraduate plan S., here for a meaningful U. “do provide plans on racial but instead individualized review applicants” rely id., “nonindividualized, way, mechanical” classifications a (O’Connor, J., concurring). a race, only Even when it comes to here plans employ in white/ limited notion of race diversity, exclusively viewing in Jeffer terms black/“other” terms nonwhite in Seattle and Broadcasting, FCC, Inc. Metro son But see County.11 (“We (1990) Na (O’Connor, J., are 547, 610 U. dissenting) S. with di- alone, tion white but one teeming not of black and enrolling Upon its bears this out. way Seattle classifies students child district, identify their required their parents child with the are more than particular of a If a identifies parent a member racial group. and, if neces form, accepted race on the will application one not be “[t]he indicate one sary, will person taking the enrollment the application service 05-908, at App. box.” in No. 303a. communities knitted various traditions

vergent by together individuals”). forth, all, carried above The Seattle “Board Statement Diversity Rationale” Reaffirming speaks of the “inherent educational value” in students “[providing with to attend schools diverse opportunity student enrollment,” 05-908, 128a, in No. 129a. But App. under the Seattle plan, school with Asian-American percent students and 50 students but white no percent African- American, Native-American, or Latino students would qual- as balanced, ify while a school with 30 Asian- percent American, 25 African-American, 25 Latino, percent percent and 20 white students would It is percent not. hard to un- derstand how a that could allow these results plan can be viewed as “ with concerned enrollment being achieving ” supra, diverse,’ Grutter, at ‘broadly Grutter,

Prior the courts of as uncon appeals rejected stitutional race-based attempts implement assignment as the plans issue at here —in sec plans and primary —such g., Eisenberg Montgomery Cty. e. ondary See, schools. v. Public Schools, (CA4 1999); Tuttle v. Ar 197 123, 133 3dF. lington Cty. Bd., (per School (CA4 698, 1999) 195 F. 3d 701 curiam); Gittens, Wessmann v. (CA1 1998). 160 F. 3d 790, 809 v. Ho San Dist., Francisco School See also 147 F. 3d Unified Grutter, (CA9 1998). 854, 865 After however, the two Courts of in cases, these and one Appeals other, that found race-based were assignments permissible at the elementary and in level, secondary reliance on largely that case. Parents VII, II, Involved 3d, McFarland F. at 1166; 426 Lynn Comm., School 3d, F. at 514; 3d 1, F. Comfort (CA1 2005) (en banc). in Grutter, In the admissions upholding plan though, Court relied considerations to institutions of upon unique that in of higher education, “the noting light free- expansive of doms and associated with speech thought the university environment, universities a niche con- occupy special in our Bakke, stitutional 539 U. at S., tradition.” 329. See also J.). ex- Powell, The Court U. S., 313 (opinion scrutiny, in striet matters" plained applying “[e]ontext race and use of addressing was noted that repeatedly supra, Grutter, “in the context education.” higher Grutter key 328, 334. in articulated expressly The Court limitations a broad- type holding defining specific its — edu- context higher based noting unique diversity disregarded by cation —but were largely these limitations Grutter in race-based lower courts uphold extending in schools. secondary assignments elementary Grutter. are cases not present governed B that reliance on Grutter sus- cannot Perhaps recognizing inter- tain districts assert additional their both school plans, Grutter, from the ests, justify distinct interest upheld be- their argument race-based briefing assignments. race Court, helps fore this Seattle its use contends and to ensure reduce racial concentration schools non- do prevent concentrated racially housing patterns students to the most desirable white from access having 05-908, schools. Brief for at 19. Jef- No. Respondents in- its has goal, phrasing ferson articulated similar County “in inte- a racially its students terest terms educating 05-915, 22.12 Each environment.” No. grated App. and broader socializa- district that educational argues environ- learning tion diverse racially benefits flow from the seek ment, diversity and each that they contends because 12 that incongruous to hold County argues it would be Jefferson also that assignments day one required of it constitutionally was what —race-based constitutionally prohibited be desegregation to decree —can pursuant the to prior required of the district constitutionally But what the next. was racial prior segregation vestiges of 2000 was elimination —not Pitts, See Freeman right. 503 U. S. proportionality in its own County eliminated, (1992). Jefferson vestiges were 494-496 Once those district, use of race its any footing on the same other was justified grounds. on must be other

726 racial broader diversity at diversity issue —not makes sense to

Grutter —it promote interest by directly on race alone. relying and their amici

The whether parties dispute racial diver- sity schools fact has marked test impact scores and objective other or achieves yardsticks intangible socializa- tion benefits. The debate is not one we need to resolve, however, because is clear the racial classifications em- ployed districts are not to narrowly tailored the goal of achieving educational social benefits asserted to flow from In racial diversity. design and operation, balance, are directed to racial plans only pure and sim- an has ple, objective Court condemned as repeatedly illegitimate. plans are tied each district’s racial demo- specific than

graphics, rather the level any pedagogic concept needed obtain the asserted educational diversity bene- fits. In Seattle, the district seeks white enrollment of be- (within 31 tween and 51 percent 10 of “the district percent white of 41 average” percent), and nonwhite enrollment (within between 49 percent “the district percent minority in No. average” percent). 05-908, at App. 103a. In contrast, County, by Jefferson district seeks black enrollment of no than or less 15 more than 50 percent, range be above and below Black student designed “equally enrollment systemwide,” I, McFarland at 2d, F. Süpp. 842, based on the objective of . . at “all schools . achieving an African-American enrollment to the average equivalent district-wide African-American enrollment” of percent, in No. App. 05-915, Seattle, then, benefits diversity enrollment of least 31 require percent white students; Jefferson least 50 County, percent. There be at must least 15 nonwhite students under percent Jefferson Seattle, times County’s more than three plan; This comparison clear that the racial de- figure. makes in each be— mographics district —whatever they happen

727 plans are “diversity” The here required numbers. drive the diversity necessary to achieving degree of to not tailored plans benefits; instead the educational realize the asserted Manager Enrollment of tailored, are in the words of Seattle’s goal Demographics, “the Planning, Support, to Technical attaining by of di- level the school board established versity approximates the district’s within the schools that App. demographics.” 05-908, 42a. overall No. di- level of racial

The evidence that the districts offer no versity necessary bene- educational achieve asserted demographics of happens fits with the coincide racial respective or school districts —or rather white/nonwhite only districts, of the that is black/“other” balance since diversity plans. in its brief Seat- Indeed, addressed simply benefits track the tle assumes that the educational Respondents Brief for breakdown district. See (“For clearly 05-908, Seattle, in No. at 36 ‘racial balance’ not but of the extent to an end itself rather a measure designed goals plan foster which the educational was achieved”). per- likely range are to be asked for “a When centage expert however, diverse,” that would be Seattle’s important as numbers so said was to have “sufficient any specter exceptionality.” feeling avoid students kind attempt did App. district 05-908, No. 276a. range posed proposition anything its defend the outside “specter exceptionality.” Nor did it demonstrate any way di- and social benefits of racial how the educational likely versity more to be of racial isolation are or avoidance percent percent and 50 white achieved at a school is 50 qualify diverse under Seat- Asian-American, which would percent plan, Asian-American, tle’s than at a school that is percent percent Latino, African-American, percent white, would be which Seattle’s definition under racially concentrated. impor- expert

Similarly, County’s referred to the Jefferson minority group repre- having percent” tance “at least 20 sentation for the “to a group be visible make dif- enough ference,” and noted that “small isolated in minority a groups school are not on likely have effect strong the overall 05-915, school.” No. App. at 147. The Jefferson County however, is plan, based on a at goal replicating each school “an African-American enrollment equivalent the average district-wide African-American enrollment.” Id., at 81. Joshua requested McDonald’s transfer was de- nied because his race was listed as “other” black, rather than the transfer would have had allowing an adverse effect on the racial guideline the compliance Young Elementary, .Id., time, school he to leave. at the sought however, 21. At Id., 46.8 was Young Elementary black. 73. The percent transfer had an might have effect the adverse on effort racial approach districtwide but it proportionality Young, had to do with nothing the either black or “other” preventing from or group “small” becoming “isolated” at Young. fact, In in each case the extreme measure of relying race in assignments unnecessary to achieve the stated as goals, even defined by the districts. For example, Franklin Seattle, School in High racial tiebreaker was applied because nonwhite enrollment exceeded 69 percent, and resulted in an class in incoming ninth-grade 2000-2001 Asian-American, that was 30.3 21.9 African- percent percent American, Latino, 6.8 0.5 percent Native-American, percent and 40.5 Caucasian. Without the racial percent tiebreaker, the class would have been 39.6 Asian-American, percent 30.2 percent African-American, Latino, 8.3 1.1 percent percent Native-American, 20.8 Caucasian. percent App. 05-908, No. at 308a. the actual racial breakdown When considered, without to their regard students race enrolling under yields body diverse student defini- substantially any tion of diversity.13 years Data for litigation the Seattle schools in the several since this

was commenced further the minimal role that racial tie demonstrate Ballard, played. breaker fact At in 2005-2006 —when no class at the the school Grutter, students of minority number nec- number” “meaningful to admit undefined was an sought student diverse body. to achieve a essary genuinely matter was the subject S., at 316,335-336. U. Although id., at 346-347 Court, on the see (Scalia, disagreement id., at 382-383 J., part); concurring dissenting part id., at 388-392 J., C. J., dissenting); (Rehnquist, (Kennedy, did the law concluded dissenting), majority arrive at back the “mean- not count from its applicant pool its to diversify number” it necessary ingful regarded Id., balance student at 335-336. Here body. districts seek a defined reference solely by set range is school districts. demographics respective This of ra- backward achieve working particular type demon- balance, cial forward from some rather than working stration of the level of diversity purported provides benefits, is a flaw under We fatal our existing precedent. have reaffirmed acial balance is not times over many “[r] subject 14.2 body school was to the racial student was tiebreaker —the African-American, Latino, Asian-American, percent percent percent 9 11.7 Caucasian, Brief percent percent Reply 62.3 and 2.8 Native-American. 05-908, 2000-2001, In when the racial tie p. for Petitioner in 7. No. Asian- used, percent enrollment was 17.5 breaker was last Ballard’s total Latino, American, African-American, per 10.8 56.4 percent percent 10.7 05-908, Caucasian, in No. at App. cent Native-American. percent and 4.6 Asian-American, per percent 283a. was 48.9 33.5 Franklin 2005-2006 Caucasian, African-American, Latino, cent and 0.8 percent percent 6.6 10.2 05-908, in No. percent Reply Native-American. Brief for Petitioner 2000-2001, was percent racial enrollment 36.8 With the tiebreaker total Latino, African-American, 25.1 Asian-American, percent 5.2 percent 32.2 05-908, Caucasian, App. No. and 0.7 Native-American. percent percent percent Asian- at 284a Nathan enrollment was 17.3 Hale’s 2005-2006 American, Latino, percent African-American, percent 10.7 percent 8 61.5 Caucasian, percent and 2.5 Reply Brief for Petitioner Native-American. 05-908, 2000-2001, tiebreaker, in No. at 7. with racial it was 17.9 African-American, 7 La Asian-American, percent percent 13.3 percent Caucasian, App. tino, Native-American. percent percent 58.4 and 3.4 05-908, at No. 286a.

730 Freeman,

to be S., achieved for 503 U. its own sake.” Co., 494. See also 488 Richmond A. Croson U. S. v. J J.) (“If (1989); (opinion Bakke, S., Powell, U. body petitioner’s purpose its within student assure merely specified particular group percentage some of a be- preferential origin, purpose cause of its race or ethnic such invalid”). rejected... facially must be Grutter itself reit- “outright “patently balancing” erated that racial unconsti- S., tutional.” 539 U. at 330.

Accepting balancing compelling racial as a state interest justify imposition proportionality would of racial throughout contrary society, repeated American to our rec- ognition “[a]t guarantee the heart of the Constitution’s equal protection simple lies the command that the Govern- simply compo- ment must treat citizens as individuals, not as religious, racial, of a nents sexual or national class.” Miller (1995) Johnson, (quoting 515 U. S. Metro Broad- casting, (O’Connor, S., dissenting); U. at 602 J., internal omitted).14 quotation Allowing marks balancing as a compelling “effectively assur[e] end itself would that race always will be relevant in life, American and that the ‘ulti- goal’ ‘eliminating entirely governmental mate from deci- sionmaking being’s such irrelevant as a factors human race’ supra, will never (plurality Croson, be achieved.” at 495 J.) opinion (quoting Wygant O’Connor, of v. Jackson Bd. of (1986) Ed., 476 U. dissenting), 267, S. 320 J., (Stevens, quoting in turn Fullilove, 448 S., J., U. at 547 (Stevens, 14 contrast, In Web formerly Seattle’s site described “emphasizing indi vidualism opposed a to more collective as a ideology” form of “cultural racism,” currently and that states the district has no intention “‘to hold ” onto unsuccessful concepts Harrell, such as mentality.’ [a]... colorblind School Web Examples Site Removed: of Sparked Controversy, Racism Se Bl, 2,2006, attle Post-Intelligencer, pp. June Compare Plessy Fer B5. v. (1896) (“Our guson, 163 U. S. 537, (Harlan, J., 559 dissenting) Constitution color-blind, and neither knows nor tolerates classes among citizens. law”). of respect civil all rights, equal are before citizens omitted). An interest citation brackets dissenting); of representation than “linked to other proportional nothing classi- of racial indefinite use various races would support ... mixture appropriate to obtain the fications, first employed continues that racial ensure [program] views and then to Broadcasting, supra, at 614 Metro to reflect that mixture.” J., (O’Connor, dissenting). has “no racial that balancing

The concern validity our Wy- supra, Croson, at 498 (quoting logical stopping point,” gant, supra, at internal quotation opinion); (plurality supra, Grutter, omitted); see at is demon- marks also tie their strated here to which the districts by degree districts’ racial As their guidelines demographics. diver- shift, definition racial too will their so demographics in 05-908, 103a sity. application No. App. (describing on “current white racial tiebreaker based percentage” “current of 59 percent minority percent percentage” added)). (emphasis

The in the Ninth Circuit it “share[d] below stated Grutter in 25 hope” expressed years prefer- ences would no be further interest longer necessary VII, Parents Involved 3d, identified in that F. case. 1192. But Seattle the are defended as plans necessary to address the identifiable racially housing consequences patterns. mandate claimed district sweep to our societal dis- contrary remedying past rulings ac- crimination does not race-conscious government justify g., Hunt, e. (1996) Shaw U. S. 909-910 See, tion. (“[A]n effort to of societal discrimination alleviate effects Wy- supra, interest”); Croson, 498-499; is not compelling gant, (“Societal S., 476 U. at 276 discrimi- (plurality opinion) nation, without is too a basis for more, amorphous imposing id., J., con- (O’Connor, classified at 288 racially remedy”); (“[A] curring part concurring judgment) govern- discrimina- mental interest ‘societal’ agency’s remedying own tion, is, to its actions, discrimination not traceable be cannot deemed constitu- pass sufficiently compelling muster”). tional is not is one permitted racial principle balancing substance, not Racial is not trans- semantics. balancing unconstitutional” a

formed from “patently compelling it state “racial interest by relabeling diversity.” simply While the use various verbal school districts formulations to describe the interest seek to they promote diversity, —racial isolation, avoidance of racial racial offer no integration they— definition of the interest differs from racial suggests See, 05-908, balance. e. No. g., 257a App. What’s (“Q. your when a school suffers from racial understanding isola- tion?” I “A. don’t id., have definition for that”); at 228a- (“I 229a don’t think we’ve ever sat down and said, ‘Define concentrated school racially exactly point quantitative I terms.’ don’t think we’ve ever had that conversation”); (Dec. 2003) Tr. in I, McFarland at 1-90 8, “How does (“Q.” the Jefferson School Board County define . . . ?” diversity “A. we Well, want to have the schools that make up per- students centage population”).

Jefferson its interest as County phrases “racial integra- tion,” but does integration certainly not the sort of require reflected in proportionality its Even in the plan. con- text of mandatory we desegregation, have stressed that ra- cial Milliken, proportionality S., see required, 433 U. (“[A n. order the sub- desegregation] contemplating stantive constitutional right [to a] of racial degree particular or (internal balance is ... infirm as a mixing matter of law” omitted)); marks quotation Swann Charlotte-Mecklenburg (“The Ed., (1971) Bd. U. S. constitutional com- mand to schools desegregate does not mean that school every in every must reflect the community always racial composi- tion of the school system whole”), and here Jefferson has County been found to already have eliminated the ves- of its tiges prior segregated system.

733 a racially that “when declared en Circuit The Ninth banc or (or racial concentration school is goal diverse system means more effective is no is there isolation the problem), Par- the solution.” than a to achieve race consideration supra, VII, rea- ents Involved For the foregoing the plans. cannot sustain sons, this conclusory argument be assignments may However race-based related closely be the goal, racial that itself cannot balance, achieving To the else. anything whether labeled “racial or diversity” that students so diversity extent sufficient objective as mem- solely see as rather than fellow students individuals solely students bers means that of a racial treat using group, cross- fundamentally as of a racial members group with that end. purposes

C in which assert, must, that way The districts they is neces- classifications have individual racial they employed these minimal effect to achieve their stated ends. sary however, sug- have student classifications assignments, racial other be Seattle’s means would effective. gests results, end, a small number tiebreaker only shifting 307 of students schools. student between Approximately tiebreaker in 2000- were affected the racial assignments by 2001; the district was to track the enrollment status able 05-908, in No. at 162a. Of 293 of these students. App. of their school that was one these, were assigned the same choices, 87 of whom were school assigned have tie- which would been without the racial they assigned breaker. students were to schools assigned Eighty-four choice, did not list but of those students as a they without have to their school would been assigned respective to attend tiebreaker, the racial and were able one oversubscribed due to adjust- schools waitlist capacity Id., ments. one-third of the assign- 162a-163a. over then, use of race tiebreaker, ments affected by difference, identify in the end made no and the district could adversely who affected were ultimately students only to a assignment tiebreaker it resulted the racial as a and to which had not listed they preference they would otherwise have been assigned. Involved VI Parents

As the panel majority concluded: tiebreaker’s annual effect is thus to shuf- “[T]he merely fle a few handfuls different students between minority a few schools —about dozen additional Latinos into Ballard, a dozen black students into Nathan Hale, per- two dozen Asians haps Roosevelt, into and so on. The District has not met its burden of these mar- proving . ginal .. the cost of changes outweigh hun- subjecting dreds of students treatment based disparate solely the color of their upon 3d, skin.” 377 at F. 984-985. Jefferson use Similarly, of racial County’s classifications has a minimal effect on the only of assignment students. El school ementary students are to their first- or assigned second-choice school 95 of time, percent and transfers, which account for of roughly percent are assignments, only denied 35 percent time —and an even presumably smaller are denied on percentage the basis of the racial guidelines, that other given factors lead a may denial. McFarland I, 330 2d, F. at 844-845, 16, nn. Supp. 18. Jefferson estimates that County racial guidelines account only percent assignments. Brief Opposition 05-915, Nо. 4;n. Tr. of Oral in No. p. 05-915, at Arg. As Jefferson County “the explains, racial guidelines have minimal in this impact process, because in they ‘mostly fluence student in subtle assignment and indirect ways.’” Brief for in No. 05-915, Respondents 8-9. pp. greater

While we do not use race would be suggest minimal preferable, of the districts’ racial impact classi- fications enrollment on casts doubt necessity In Grutter, classifications. using the consideration of race viewed was mi- in more than indispensable tripling 4 to 14.5 per- school—from the law at nority representation the most Jefferson Here S., at 320. cent. 539 U. provide guidelines itself claims that “because County of racially Board’s goal integrated firm definition with the authority schools, administrators they ‘provide and staff with principals collaborate and facilitate, negotiate ” Brief Op- the 15-50% range.’ schools within to maintain supra, I, McFarland at 05-915, in No. position (quoting 842). according schoolchildren assigning Classifying an extreme light of race is approach binary conception race in and our Nation’s history using of our precedents more an schools, amorphous than such public requires end it. justify considered they

The districts have also failed to show to achieve racial classifications methods other than explicit “serious, good their stated Narrow tailoring requires goals. alternatives,” faith workable race-neutral consideration supra, Grutter, in Seattle several alternative yet not have used ex- of which would assignment plans many— or no with little racial classifications —were press rejected g., e. 05-908, 224a-225a, See, consideration. No. App. any has failed to present 307a. Jefferson 253a-259a, County dis- alternatives, even evidence that it considered though achieved trict its are primarily claims already goals Brief the racial classifications. means other than through Croson, 8-9. Cf. 05-915, for in at No. Respondents and S., J., concurring at part concurring (Kennedy, U. (racial “as a last only classifications permitted judgment) resort”).

IV Breyer’s different dissent takes a approach Justice would reach it cases, one that fails the result these ground prece- Instead, in law. it relies on inapplicable selectively al- contrary holdings, even dent and dicta while dismissing framework and our well-established legal ters misapplies classi- express equal protection challenges assessing fications, and to- consequences of greatly exaggerates decision. day’s Breyer

To with, seeks begin justify the plans Justice issue at under our in- precedents recognizing compelling terest intentional discrimination. See remedying past at 819-825. post, Not even the school districts far, go and for reason. The distinction between good segregation state action and racial by imbalance caused factors by other has been central to our in this area for jurisprudence genera- Milliken, e. 14; Freeman, See, 280, tions. atS., g., 433 U. n. (“Where S., 503 U. at 495-496 is a not resegregation product of state action choices, but does have not consti- private tutional The dissent elides this implications”). distinction de between jure intimates segregation, casually defacto that Seattle’s school attendance reflect patterns illegal segre- post, 806, 819-820, 824,15 and gation, fails to credit judicial determination —under the most standard— rigorous that Jefferson had County eliminated the vestiges prior The dissent thus alters in segregation. fundamental ways the facts but only here the established law. presented Breyer’s Barresi, McDaniel reliance on Justice U. (1971), 824-825, S. 39 post, how far re- highlights moved the discussion in the dissent is from the actu- question these cases. McDaniel ally presented a concerned Geor- school gia that had been system segregated law There by was no doubt had a “dual county operated Breyer Justice makes much of fact that 1978 Seattle “settled” an NAACP complaint with alleging illegal segregation the federal Office (OCR). 810, 819, for Civil Rights- post, 824. The memoran course, OCR, dum of agreement between Seattle and no contains admis sion segregation Seattle that such ever existed or was ongoing at time of the agreement, reflects “desire avoid the simply incoven ience expense investigation,” [sic] formal OCR which OCR was obligated under upon filing complaint. law to initiate of such a Memo randum of Agreement Seattle School No. l King between District County, Washington, OCR, Health, Education, Dept. U. S. (June 80.7(c) (2006). 9,1978); § Welfare 2 see 45 also CFR that the obli- one no S., 41, questions at 402 U. system,” can law by system segregated a school to disestablish gation had not a court or remedies —whether include race-conscious at 720-721. supra, effect. issued an order to that however, because Seattle us, cases are before present law, and Jeffer- never segregated school district was to be having unitary, been found son has district County justifi- status. The its dual eliminated the vestiges prior is therefore McDaniel remedies in for cation race-conscious to ac- refusal here. The dissent’s persistent applicable on insistence viewing this distinction —its cept in Mc- like the ones if were classifications here as they just Daniel, of segregated public “devised to overcome history to understand schools,” at its inability explains post, 848— cannot for racial classifications the remedial why justification decide these cases. dicta Breyer’s relies dissent next heavily

Justice S.,U. Ed., Bd. from Swann v. Charlotte-Mecklenburg themselves. than the school districts at 16 — far more heavily with Brief for 804-805, 823-829, at Respond Compare post, 05-908, 19-20; at Brief ents No. Respondents the two- 31. The dissent 05-915, No. at acknowledges dicta, 823, in Swann was post, sentence discussion pure a “basic it demonstrates princi asserts that but nonetheless “authoritative legal constitutional law” provides ple ex as the Court 823, guidance,” Initially, post, our dicta “we are not bound to follow Term, last plained just was not now at issue fully case which the prior point Katz, Community College debated.” Central Va. that, (2006). true That 356, given particularly

U. S. had not confirmed decided, Court yet when Swann was like those to racial classifications that strict scrutiny applies “technical” us. 16, before See n. There nothing infra. such our “theoretical,” or about approach post, 399-400 See, e. Cohens v. Wheat. dicta. g., Virginia, J.) (1821) not binding). dicta is (Marshall, (explaining why C. 738 only put extraordinary such Breyer would

Justice weight relies on for dicta, admitted but statement something say. remotely only it does not Swann addresses permissible possible objective; nothing says state it a school district means —race or otherwise —that conscious might employ objective. reason for achievе any enough, case did omission clear since the not involve voluntary adopted by a means school district. The dissent’s recognizing Equal characterization of as Swann “the permits Protection school Clause local boards to use race- positive goals” criteria conscious race-related achieve is— at Post, best—a dubious inference. at 823. Even if the weight dicta from Swann were entitled to the the dissent give only would it, and no is, dicta it not did not address question presented Swann, it also does not address the question presented in these cases—whether the school dis- tricts’ use of racial classifications to achieve their stated goals permissible.

Further, for all the lower court cases Justice Breyer “prevailing legal assumption,” cites evidence post, very 827, pertinent. embodied Swann, few are Most example, are not. For the dissent features Tometz v. Board Waukegan Ed., City Dist. 61, School No. 593, 39 2d Ill. (1968), 597-598, 237 N. 498, E. 2d as evidence that “state and federal courts had considered the matter settled un Post, controversial.” at 825. But Tometz addressed a chal lenge to requiring drawing statute race-consciousness beyond attendance boundaries—an issue well scope question presented of Importantly, in these cases. only considered that issue under rational-basis review, (“The Ill. 2d, E. any 2d, 237 N. leg test essentially reasonableness”), islative classification is one of grudgingly recognizes which even improper the dissent is an express evaluating for standard racial classifications. Other similarly inapplicable. cases are g., cited See, e. Citizens for Independent Better Ed. v. Goose Creek Consol. Dist., School 1986) rezon- (Tex. (upholding App. 352-353 719 S. W. 2d review).16 under rational-basis ing plan ato authority Breyer’s looks next dissent

Justice 1, 458 No. Dist. School v. Seattle footnote Washington Breyer’s evidence of cites as dissent fact, all the cases Justice 825-828, be were decided at post, “prevailing legal assumption,” the see . . . classifications “all racial that definitively fore this Court determined scrutiny.” Adarand strict court under analyzed by reviewing must be a (1995). 200, Many Constructors, Peña, proceeded 227 515 U. S. Inc. v. a disad seeking to benefit that classifications now-rejected the view under See, of review. to a lesser standard group racial should be held vantaged (CA1 261, Barksdale, 2d 266 F. v. 348 g., Springfield e. School Comm. 1965). distinction, Stevens would which Justice if purported Even this already been 799-800, had not opinion), n. adopt, post, (dissenting 3 at cases, in to these Court, has no relevance rejected by this the distinction they wish to from the schools which of all races are excluded students See, e.g., App. solely attend on the racial classifications. based 05-908, assign were denied (noting No. at 202a that 89 nonwhite students tiebreaker). to a racial particular by operation ment school of Seattle’s Board Comm. Boston v. Justice Stevens’s reliance on School of of (1967), Ed., 693, dism’d, U. S. 572 appeal 227 N. 389 Mass. E. 2d 729 (1968) curiam), 800-803, reason post, inapposite at is for the same (per Breyer the case many by inapposite; that of the cases cited Justice are districts to avoid required law that school involved a Massachusetts achieve goal how to specify imbalance schools but did not —and certainly racial classifications as the means to do require express did not review, The law with the upheld so. was under rational-basis state court explicitly plainly is now the law—that rejecting suggestion the —which justification.” burden of “racial bear a far heavier group classifications omitted). (internal Mass., 2d, 700, quotation marks at 227 N. E. at 734 point; quoted all the quotes proves our passage Justice Stevens a plan “shall to elimi prepare language says that the school committee Id., 2d, 731; 801, 695, at post, E. at see n. 5. nate imbalance.” at 227 N. Nothing opinion the as the approves use of racial classifications means today to address the that our decision suggestion imbalance. The is some by appeal with our is belied the fact disposition how inconsistent of that districts, any of courts, the the nor respondent that neither lower 51 amici saw to cite case. We raise this fact not their fit even any different stare decisis that the dismissal should be afforded argue the reasons noted effect, perhaps but rather simply suggest —for Stevens believes what Justice dismissal does not mean above —the does. (1982), 857,

U. n. 15 at but there this 457, 472, S. Court post, on of noted that it was not expressly passing propriety the absence of a find race-conscious student assignments the citation de Craw jure Similarly, ing segregation. 527 (1982), Board Ed. Los S. U. Angeles, post, ford at 825, a state referendum which race-based prohibiting was assignment plan challenged, inapposite —in Crawford Court reserved again expressly question presented S., these cases. 458 n. 11. by U. Such reservations did course not decide the preliminary analyses merits of this evidenced question disagreement among —as lower courts this issue. Compare Eisenberg, 3d, 3d, F. with 418 F. Comfort, at 13. Breyer’s dissent also asserts these cases

Justice Grutter, are controlled by claiming existence interest in these cases “follows a compelling from fortiori’ Grutter, 842,864-866, post, us of over- accusing tacitly case, that see at ruling post, 864-866. The over- dissent reads Grutter, however, that suggesting renders pure racial a interest; balancing constitutionally Grut- compelling ter itself recognized race to achieve using racial simply balance would be unconstitutional,” “patently 539 U. S., at 330. The Court was careful exceedingly describing interest furthered in Grutter as “not an interest simple ethnic but a “far rather broader diversity” array qualifica- tions and characteristics” in which race was but a ele- single (internal ment. at Id., omitted). 324-325 marks quotation takeWe the Grutter its Court at word. We do not simply understand how Justice Breyer can maintain classify- ing every schoolchild as black or white, and that classi- using fication as determinative factor in children to assigning achieve racial pure balance, can be as “less burden- regarded some, and hence more tailored” narrowly than consider- ation of in Grutter, race at when the post, Court Grut- ter stated that . “[t]he . . individualized importance consideration” in was program and consid- “paramount,” individualized, in a eration was one factor “highly of race constitu- if the S., Certainly holistic 539 U. review,” as estab- these were cases use of race tionality the stark been have it, lished there would have would the dissent in Grutter. no need undertaken for the extensive analysis Breyer’s to stare of the light appeal foregoing, Justice decisis at 866. hollow. Sеe post, rings particularly

At the desegregation time it relies on inapplicable same cases, dicta, noncontrol- and other misstatements admitted Breyer’s dissent ling pronouncements, candidly Justice dismisses the of this Court’s holdings significance repeated that all under must be strict classifications reviewed that a differ- 831-834,836-837, see scrutiny, post, arguing ent standard of review should be because the dis- applied tricts use race for beneficent rather than malicious purposes, see at 832-837. post,

This has reiterated, however, Court ‘“all recently racial classifications . . . must [imposed government] by be under analyzed by court strict scrutiny.’” reviewing Johnson, S., Adarand, U. at 505 S.,U. (quoting 227; Court). emphasis Grutter, added Johnson See also (“[Governmental at 326 supra, action based race —a classification group as in most circumstances long recognized irrelevant and therefore be prohibited subjected —should (internal detailed judicial inquiry” marks and em- quotation Breyer omitted)). phasis nonetheless relies on Justice intentions and good districts, motives stat- that he has found ing “no that... case repudiated consti- tutional asymmetry between that which seeks to exclude and that which seeks to include members races.” minority Post, at 830 in We have (emphasis found original). many. Our cases clearly reject that motives affect the argument strict Johnson, (“We scrutiny analysis. See supra, at 505 have insisted on strict context, scrutiny even every for so-called racial classifications”); ‘benign’ Adarand, at supra, “ ” idea racial (rejecting classifications ‘benign’ may Croson, S., 488 U. at 500 standards”);

be held to “different (“Racial that means that classifications are sim- suspect, suffice”). assurances intention cannot legislative good ple This that different rules should govern argument classifications to include rather than exclude not designed been see, e. new; it has g., repeatedly pressed past, Gratz, 539 U. at 282 J., concurring judgment); S., (Breyer, id., Adarand, J., at 301 supra, at 243 dissenting); (Ginsburg, J., Wygant, dissenting); 476 U. at 316-317 (Stevens, S., J., and has been dissenting), repeatedly rejected. (Stevens, Bakke, J.) See also 438 U. of Powell, 289-291 (opinion S., that strict be argument should (rejecting scrutiny applied to classifications only minorities, stat- disadvantage “[rjacial ing and ethnic distinctions of sort are inher- any and thus call for ently the most suspect judicial exacting examination”). for reasons a motives test for racial rejecting classifi

cations are clear “The Court’s on enough. emphasis ‘benign racial classifications’ suggests confidence its to dis ability tinguish from harmful good uses of racial governmental cri teria. should teach History . . . greater humility. ‘[Bjenign’ carries with it no but independent reflects ac meaning, only ceptance of the current generation’s conclusion politi cally burden, acceptable on imposed particular citizens race, basis of is reasonable.” Metro Broadcasting, S.,U. (O’Connor, 609-610 See also Ada J., dissenting). rand, (“ at 226 supra, ‘[I]t be clear may always that a so-called Bakke, preference fact benign’” (quoting J.))). supra, Powell, (opinion Accepting Justice Breyer’s would no approach “do more than move us from ” ‘separate but Metro equal’ but Broad ‘unequal benign.’ casting, at 638 supra, J., dissenting). (Kennedy, Breyer “the races” speaks bringing together

Justice aside (putting black-and-white nature of purely as the plans) justification individuals on the excluding basis of their race. at 829-830. post, Again, ap-

743 at odds with is fundamentally classifications proach racial Protection our makes clear that Equal which precedent, Adarand, S., 515 U. not groups,” Clause “protects] persons, (“[A]ll ibid. governmental at 227 in original). (emphasis classification long recognized action based on race —a group prohib and therefore as ‘in most irrelevant circumstances 100 States, 320 U. S. United Hirabayashi ited,’ [v. (1943)] inquiry to detailed subjected judicial be — should the laws to equal protection ensure that the personal right Metro Broad has not been (emphasis original)); infringed” (“[0]ur Con J., at dissenting) 636 casting, supra, (Kennedy, as a mem individual, not stitution each citizen as an protects J.) Powell, Bakke, ber of a at supra, (opinion group”); (The Amendment creates “‘guaranteed Fourteenth rights are personal established to the individual. rights con ”). back, in this goes This fundamental rights’ principle Education, Brown v. Board to Brown itself. See text, (1955) (Brown II) (“At the per stake is U. S. schools sonal public interest of the admission plaintiffs added)). For (emphasis on a basis” non-discriminatory ... scrutiny’ simply “‘individualized dissent, contrast, Post, at 855. beside the point.” familiar to a Breyer’s comes down position

Justice that “there He admits The end the means. justifies claim: ” label,’ post, is a ‘a state-mandated racial cost applying Our is worth paying. cost 867, but he is confident that classifications, how- for racial strict test scrutiny established ends as to examination, both “detailed ever, insists on added). Adarand, (emphasis supra, as to means.” a worthy goal seek the school districts may because Simply basis on the discriminate not mean are free to they does should classifications or that it, to achieve their race scrutiny. to less be subject exacting be evaluated should that these cases his

Despite argument in the tradi- is not ‘strict’ of review a “standard under Breyer still purports word,” tional sense of that Justice strict apply scrutiny post, these cases. See It Breyer’s is evident, however, brand of narrow Justice in our tailoring quite unlike found precedents. anything Without of any detailed discussion the of the operation plans, the who students affected, are or the districts’ failure to con- sider race-neutral the dissent alternatives, concludes that the districts have that shown these racial classifications are to achieve necessary the districts’ stated goals. This conclu- sion divorced from evaluation of the actual any of impact issue plans at than to these cases —other note that the Post, “often have no effect.” at plans Instead, 846.17 dissent that some combination of the suggests development of time, these over plans endeavor, difficulty faith of the good districts suffices demonstrate that these stark and racial classifications are constitu- controlling tional. The Constitution and our precedents more. require with his view that strict not keeping should scrutiny Breyer apply, deference local repeatedly urges Justice 848-849, school boards on See, these issues. e. at g., post, Such deference “is at with our fundamentally odds 866. equal protection We the burden on state jurisprudence. put actors to demonstrate their race-based are policies Johnson, justifiеd.” 543 U. S., Croson, n. See (“The supra, at 501 of racial history classifications country that blind suggests judicial deference to legislative or executive of pronouncements has no necessity place Breyer Justice downplay also the impact tries of the racial as signments by stating voluntarily Seattle “students decide can (without preferred any transfer to a high district school consideration Post, criteria).” race-conscious presumably at 846. This to the refers year cease, assignments, apply district’s decision to school 2001-2002 ing seeking the racial tiebreaker to students to transfer to a different 05-908, grade. App. school after ninth No. There 137a-139a. transfer after are obvious disincentives for students to to a different school quarter high experience passed, a full of their record has and the light sheds no are high how transfers to the oversubscribed schools handled. Bar Ed. v. Bd. Virginia West protection analysis”);

equal (1943) (“The Fourteenth Amendment nette, 624, 637 319 U. S. itself and all its the State ... against the citizen protects excepted”). creatures —Boards Education note of ends on an unjustified Breyer’s dissent Justice “threaten[s]” It decision alarm. predicts today’s “[hjundreds and federal statutes reg- of state validity But Post, 861; at 828-829. ulations.” ‍​​​​‌​​​‌‌‌‌​​​​​​‌‌​​​‌‌‌‌‌‌‌​​‌​‌‌​​​‌‌​‌‌‌​‌​‍see also post, mentions —for example, provision dissent examples 2001 that States the No Child Left Behind Act of requires of stu- to set measurable to track the achievement objectives from ethnic 20 U. S. C. dents major groups, IV) 6311(b)(2)(C)(v) (2000 § do ed., nothing Supp. —have with the in these issues cases. pertinent Breyer that other means for also suggests

Justice racial are achieving greater schools diversity necessarily unconstitutional if the racial classifications at in these issue Post, cases cannot survive strict at 858-862. scrutiny. schools, These other means —e. where to construct new g., how to allocate resources and which academic schools, among to to attract to certain provide students schools— offerings different implicate considerations than the racial explicit cases, classifications issue in these and we no express opin- ion their on Rather, even in dicta. we validity employ —not the familiar and of strict well-established analytic approach the evaluate at issue an scrutiny plans approach today, that in no the warrants dissent’s concerns. way cataclysmic that Under the school districts have not carried approach, their burden of that the ends seek the showing they justify extreme means in- particular have they classifying chosen — dividual students on the basis of their race and discriminat- them basis. ing among

[*] ^{[*] [*]} If the need for the racial the classifications embraced by unclear, school districts is terms, even on own the districts’ are costs undeniable. between citizens “[Distinctions 746 because of their

solely very are their ancestry nature odi by ous to a free whose are founded people institutions upon (internal Adarand, doctrine S.,U. at 214 equality.” 515 omitted). quotation marks Government action us dividing race by is inherently because such suspect classifications pro mote “notions lead of racial inferiority politics Croson, 488 U. 493 hostility,” S., (plurality opinion), “reinforce belief, by held too too much our many should history, individuals be by color judged Shaw Reno, skin,” their v. 509 657 (1993), U. S. “en dorse race-based and the of a reasoning conception Nation divided into blocs, raeial thus an escalation contributing of racial and conflict.” Metro Broadcasting, hostility S.,U. 603 (O’Connor, J., dissenting). As Court ex in Rice v. Cayetano, (2000), plained U. S. “[o]ne reasons principal race as a forbidden classi treated fication is that it demeans and worth of a dignity person to be his judged by ancestry instead of or her own merit and essential qualities.”

All is true enough contexts which these state- ments were government districts, contracting, voting made — licenses, allocation broadcast state officers— electing but when it comes race schools, children to using assign Education, Brown will be Board of history heard. (1954) (Brown I), U. S. we de- held segregation black children equal prived educational opportunities of whether regardless school facilities and other tangible factors were because and equal, government classification of on race separation inferiority. themselves denoted grounds Id., at was 493-494. It not the of the facilities inequality separating but fact of race children on the basis of legally relied to in on which the Court find a violation constitutional (“‘The id., segregation] [of impact law’”). it has sanction next when of The greater stated that “full with Term, accordingly we compliance” of Brown I a system districts “to achieve required schools on a nonracial to the public admission determining added). II, basis.” S., 300-301 Brown U. (emphasis more amici debate which side is and their parties Brown, but faithful to the position heritage in their brief and could Brown in was out plaintiffs spelled Amendment not Fourteenth pre have been clearer: “[T]he to Ameri vents differential treatment states from according or for their color race.” Brief can children on the basis of in No. 10 1,2, in and 4 for Nos. Respondents Appellants I, Brown 1953, in (Summary on T. O. Reargument p. here do the racial classifications issue What

Argument). if treatment the basis of race? do, not accord differential on As who before this Court for the plaintiffs counsel appeared which Brown in contention it: “We have one fundamental put in of this argument, we will seek to the course develop under the that contention that no State has any authority to use clause of the Fourteenth Amendment equal-protection in educational among race as a factor affording opportunities I, Brown O. in T. No. its citizens.” Tr. of Oral Arg. (Robert There is no Carter, 9, 1952). ambiguity L. Dec. p. it was that that statement. And prevailed position Court, its remedial which emphasized opinion interest what was is the plaintiffs stake personal “[a]t on as soon as admission to schools practicable public “de basis,” what was was nondiscriminatory required on a nonracial schools admission to the public termining added). II, basis.” Brown at 300-301 (emphasis supra, cases, if not in these do What do the classifications racial basis? school on a determine admission to public Brown, told where could they Before were schoolchildren their skin. color of on the and could to school based go carried the heavy have not The school districts these cases allow this burden that we should demonstrating once For schools that different reasons. very again —even Seattle, or race, such as never basis segregated such as have removed the vestiges past segregation, Jefferson the “to a of County, achieve determin way system admission to ing on public schools nonracial basis,” Brown II, supra, 300-301, is to stop assigning students on a racial basis. The discrimination on the way basis stop race is discriminating on basis stop race. of the for the judgments Sixth and Appeals Courts Ninth reversed, Circuits are are and the cases remanded further proceedings.

It is so ordered. Thomas, Justice concurring.

Today, Court holds that state entities not may experi- ment with race-based achieve means ends so- they deem cially desirable. concur wholly in The Chief I Justice’s I write opinion. address separately several of the conten- Breyer’s (hereinafter tions in dissent). dissent Justice to the dissent’s Contrary is not oc- arguments, resegregation in Seattle or curring Louisville; these school boards have no interest present in remedying past and these segregation; race-based do serve student-assignment programs any state interest. compelling are uncon- Accordingly, plans stitutional. a colorblind Disfavoring interpretation Constitution, the dissent would school boards free give hand to make decisions on basis race —an approach reminiscent of that advocated segregationists Brown Education, v. Board (1954). 347 U. S. 483 This approach just wrong today as as it was a half century ago. The Constitution and our cases us to be more require much before local make de- demanding permitting school boards to cisions based race.

I The dissent claims that the districts are repeatedly with resegregation threatened will succumb to they if threat these are declared It plans unconstitutional. justified also these can be argues plans part attempts school boards’ earlier school segre- “eradieatfe] dissent’s at 806. Contrary See, e. g., post, gation.” with is threatened school districts these rhetoric, neither of or compelled constitutionally is and neither resegregation, im- Racial remediation. race-based to undertake permitted terms incantation of mere and the is balance not segregation, cannot make up remediation like and resegregation difference.

A race-based Because has authorized required this Court im is de it jure segregation, remedial measures to address define distinguish portant clearly segregation In the of schooling, from racial imbalance. context public is the of a school system deliberate segregation operation out a pupils “carry governmental policy separate v. Charlotte Swann schools on the basis race.” solely of. Ed., (1971); see also Mon Bd. 1, Mecklenburg 402 U. S. 6 of (1968). Jackson, roe v. Board 450, 452 S. 391 U. ofComm’rs of Brown, In declared was uncon this Court that segregation of the Four stitutional under the Protection Clause Equal Swann, see also Green v. teenth at supra, 6; Amendment. (1968) (“[T]he School Bd. New Kent 430, 435 391 U. S. Cty., State, local school and school through the board offi acting cials, dual ‘white’ and organized operated system, part It was such dual 14 part years ‘Negro.’ systems ago that. Brown[, 483,] U. unconstitutional and a later year 347 S. held Education, Brown Board (1955),] 349 294 held U. S. [v. abolished”).1 must be of a school district’s

Racial imbalance is the failure indi- vidual schools to match or approximate demographic of the student Cf. Washington large. makeup population 1 cases, paradigmatic segregation Court’s there was a local ordi nance, statute, provision requiring state or state racial sepa constitutional g., Bolling e. Brief for Petitioners See, 1952, ration. Sharpe, v. O. T. 413, races); pp. separation 28-30 (cataloging requiring No. state laws id., App. (listing A “Statutory and Constitutional Provisions in the Institutionalized”). Segregation States Where in Education is 1, Dist. No. (1982). Seattle School Ra S.

v. U. ob Although cial presently imbalance not segregation.2 jure de imbalance result from served racial might past seg racial imbalance can also from number result regation, any decisions, housing innocent private voluntary including supra, Swann, Jenkins, Missouri v. choices. 25-26; (1995) J., 515 U. S. Because concurring). (Thomas, racial imbalance is not linked to inevitably unconstitutional Day it is not unconstitutional in and of segregation, itself. Dayton Brinkman, ton Bd. Ed. 406, 413 433 U. (1977); S. Bd. v. Brinkman, Ed. (“Ra (1979) 526, 531, U. S. n. 5 per se cial imbalance violation”); ... constitutional Pitts, Freeman v. Swann, 503 U. S. 494 see (1992); also supra, Bradley, cf. Milliken 31-32; v. U. S. 740- (1974). 741, and 19n. there is

Although a of racial arguably danger imbalance in in schools and Louisville, Seattle is there no of danger No one contends resegregation. Seattle has estab- lished or that Louisville has dual reestablished a school sys- tem that students on the separates basis of race. The sta- tistics in cited A the to Appendix are dissent the to post, See contrary. At most, 869-872. those statistics show a national trend toward classroom racial imbalance. However, racial imbalance without intentional state action to separate the races does not amount to To raise segregation. the of specter resegregation defend these programs the ignore word the nature of meaning the cases before us.3 “ ” The dissent refers repeatedly reverently to ‘integration.’ How

ever, outside jure context for past remediation de segregation, “integration” Therefore, simply balancing. post, racial at 838. school attempts “integrate” districts’ further properly are thought little attempts more than to achieve a particular racial balance. 3The dissent’s necessary assertion that these are plans school districts to maintain their gains” segre “hard-won reveals its conflation of gation and racial imbalance. Ibid. purposes, the rele For dissent’s vant gains present hard-won in the compositions are individ-

B lack an interest preventing districts Just as the school interest remedy have no also they present resegregation, The generally prohibits Constitution ing past segregation. has but this Court decisionmaking, race-based government for remedial pur measures race-based authorized use First, defined circumstances. in two narrowly poses law, race-based formerly schools that were segregated rem constitutionally compelled measures are sometimes Croson, Second, in the Court edy prior segregation. unit remedy to authorize government appeared willing Richmond it was for which responsible. discrimination past Co., (1989). A. Without v. J. Croson 469, 504 explic S. U. doctrine, the dissent of these strands either itly resting interests invokes the school districts’ repeatedly supposed analyzed, though, remedying Properly past segregation. of per these do not fall within either category plans existing missible race-based remediation. race-based does not government Constitution permit claims re a school district because

decisionmaking simply with faith good arguably medial purpose proceeds (2003) 539 U. 306, 371 Grutter motives. Bollinger, S. pure However, gain hard-won in the actual ual schools Seattle Louisville. of state- system of the vestiges in these cases is the elimination equate in once existed Louisville. To separation enforced racial elimina in with the mix several schools achievement of a certain statistical the latter jure segregation de system systematic tion of the of trivializes and a accomplishment. classroom aesthetics Nothing but an interest in justifies the school districts’ hypersensitivity to elite sensibilities II-B, principle See inher balancing programs. Part But “the infra. required dis equality that ent underlies and infuses our Constitution” Constructors, Inc. v. jure segregation. de Adarand establishment (1995) Peña, J., and concur 200, 240 (Thomas, part in concurring 515 U. S. manner, no compar in there is ring judgment). objective in any Assessed between the two. ison

752 J., in (citing concurring part dissenting part)

(Thomas, Adarand Constructors, Peña, Inc. (1995) 200, 239 S.U. J., concurring part judgment)). and concurring (Scalia, Rather, race-based government decisionmaking categori cally prohibited unless serve narrowly tailored to a compel supra, Grutter, interest. ling 326; II-A, see also Part This exacting proven “has scrutiny automatically infra. supra, Jenkins, fatal” in most J., cases. at 121 (Thomas, Hirabayashi States, v. United cf. concurring); U. S. (1943) (“[Rjacial are in most discriminations circum stances irrelevant and therefore And prohibited”). appro so. “The priately Constitution abhors classifications based on race, not because can only those classifications harm fa vored races or are motives, based on but illegitimate also because time the every government citizens on racial places and makes registers race relevant to the of bur provision supra, Grutter, dens or benefits, demeans us all.” at 353 J.). (opinion Therefore, rule, as a general all Thomas, race-based government of con decisionmaking regardless — text —is unconstitutional.

This Court has carved out a narrow exception gen- eral rule cases in which a school district has a “history two sets of maintaining schools school single system deliberately out operated carry governmental policy separate schools on the pupils solely basis of race.”4 Swann, S., cases, 402 U. at 5-6. In such race-based reme- supposed difficulty determining dissent makes much de jure g., post, was de prior See, whether e. segregation or facto. 820-821. That will not be typically nearly determination as difficult cases, the dissent there either will will makes it seem. most or statute, ordinance, amendment, been have a state state local constitutional policy explicitly requiring separation or local administrative of the races. See, e:g., supra. difficult, n. if And even the determination it is one acknowledges dissent must be made determine what remedies Post, required adopt. at 843-844. districts are

753 at S., Green, 391 U. required.5 sometimes measures are dial (1992) 717, 745 S. Fordice, 505 U. v. States 437-438; cf. United of state- history without a But (Thomas, J., concurring).6 affirmative has no district a school enforced racial separation, to measures remedial race-based take legal obligation vestiges. its and eliminate segregation as a is compelled us before today

Neither of the programs claim. Seattle makes such a measure, and no one remedial therefore, the Constitu- no of de jure segregation; has history Louisville plan.7 Although tion did not Seattle’s require Barresi, (1971), fits in McDaniel v. 402 U. S. 39 opinion This Court’s volun There, school board Georgia comfortably within this framework. Board of Brown v. At the time tarily adopted desegregation plan. that Education, required (1954), Georgia’s Constitution 347 U. S. 483 races.” Ga. colored for the white and provided schools shall be “[s]eparate (1945). previously §2-6401 had Const., VIII, that state law Art. Given system, county a dual school required the school board to maintain jure segregation. de remedy prior its obligated was to take measures the school which stated recognized opinion, Court as much its This system.” dual school duty “affirmative to disestablish the board had an McDaniel, supra, at 41. elsewhere, this Court authorized explained As I have the remedies like Green and Swann compel early desegregation courts to cases lower (1995) Jenkins, 515 U. S. 70, 124-125 See Missouri exceptional. were Brown prompted the Court (concurring opinion). Sustained resistance (like com remedial measures extraordinary to authorize race-conscious desegregate into dictate the Constitution’s pelled mixing) to turn if Even these meas S., concurring). (Thomas, J., 515 U. at 125 reality. widespread resistance face as remedies appropriate were ures scru from constitutional mandate, they are not forever insulated Brown’s only to Rather, temporary have been used tiny. powers “such should of the Constitution.” to the dictates widespread overcome the resistance S., J., concurring). (Thomas, U. at 125 material, record every complaint, manner of the dissent cites Though student-assignment scholarly relating to Seattle’s race-based article required efforts, 873-875, policy no law or official post, cites Nevertheless, the dissent in Seattle’s separation races schools. the Seattle schools were on the fact that to east doubt historical tries National Associa by dting allegations law segregated never made organizations other People for the Advancement of Colored tion once operated system was segregated subject to a Federal ante, decree, District Court’s see desegregation Bd. 715-716; at Ed., 102 v. Hampton Cty. Jefferson (WD 2000), F. 2d 358, 376-377 Supp. decree was Ky. dissolved in id.,, at then, no Since 360. race-based remedial measures have been in Louisville. required Thus, the race-based at issue here, which student-assignment plan was instituted the the after dissolution the year deseg- decree, regation was not even required the arguably Constitution.

3 Aside from constitutionally compelled remediation in schools, Court this has units permitted to rem- government racial discrimination in narrow edy prior only circumstances. Ed., Jackson Bd. (1986) See Wygant 476 S. U. 277 (plurality opinion). Regardless constitutional validity of such remediation, Croson, see S.,U. at 524-525 J., it does not concurring judgment), here. apply (Scalia, neither Again, school board asserts its race-based ac- tions were taken to remedy discrimination. Seattle prior three provides forward-looking remedial— opposed —as justifications for its race-based Brief for assignment plan. in No. 05-908, Respondents 24-34. Louisville asserts pp. several similar for Re- forward-looking interests, Brief 05-915, 24-29, No. and at spondents oral pp. argument, counsel for Louisville disavowed claim that Louisville’s any argument “depend[ed] any way prior jure de seg- regation,” Tr. Oral No. Arg. 05-915, 38. p. Furthermore, for a unit government dis past remedy crimination which it was Court has re responsible, it to demonstrate quired “a basis in ‘strong its evidence for Croson, conclusion remedial action was necessary.’” in court to the effect that Seattle’s filings schools segregated were once post, 808-810, by law. allegations See at 824. These proved were never Indeed, and were not made in case. even sug- record before us gests 05-908, contrary. App. 214a, 225a, in No. pp. 257a. Past allegations provide another case no for resolving basis cases. these supra, Wygant, supra, at 500 (quoting opin at (plurality requires in evidence” ion)). basis a “strong Establishing extent of government regarding proper findings Croson, at 504. S., U. discrimination. unit’s past [and] of any injury the scope should “define The findings “in id., at be more than 505, and must remedy,” necessary id., wrongs,” claims past unmeasurable herently in are plainly societal discrimination Assertions general Wygant, supra, Id., 499, 504; (plurality sufficient. Bakke, 438 Regents 265, Cal. Univ. S. v. U. cf. opinion); of of has J.). school district (1978) Neither Powell, of (opinion at the dissent Seattle, For such findings. made specific any to allegations this by adverting to make for up failing tempts school dis the filed Seattle made in complaints against past cannot substitute However, trict. complaints allegations those when for of discrimination —even specific findings prior with parties. lead to settlements complaining allegations supra, Wygant, supra, Croson, n. 5 279, at 505; (plural Cf. the slate was cleared Louisville, As for its ity opinion). de decree, effectively which District Court’s 2000 dissolution jure de dis effects of clared there were no any that longer crimination in of remediation.8 need 844-845, the Louisville argument, post, Contrary to the dissent’s did van jure de segregation remedying past its

school district’s interest the had eliminated that Louisville day ish the Court found the District Hampton jure de vestiges segregation. of its historic Jefferson 2000). Ed., (WD If were there Cty. Bd. Ky. F. Supp. 2d have logically could not done, further be the District Court remediation to asso vestiges the “ha[d] eliminated reached the conclusion that Louisville effects.” pernicious segregation the and its policy ciated with former remedy only as Ibid. Because Louisville could use race-based measures "incoherent,” say post, jure segregation, de it not past for is it day one to Louisville was allowed decisionmaking race-based —while was remediation it the next —when forbidden to remedying was still —and fact the merely a result of seemingly That odd turnaround finished. excep jure guarded remediation of de jealously is a segregation against government Equal general tion to the Clause’s rule Protection decisionmaking. race-based dissent’s intimation remedial

Despite repeated neither as a purpose, question qualifies programs Thus, permissible race-based remedial measure. the pro- are to the rule that grams subject race- general government based is unconstitutional. decisionmaking

C As the demonstrates, foregoing is some- balancing times a for the permissible remedy discrete constitutionally jure de legal when wrong directed segregation, to that end, racial is an balancing rule exception general government race-based decisionmaking unconstitutional. reason, the dissent conflates the Perhaps concepts If racial imbalance: racial imbalance segregation equates then it must also be segregation, constitutionally accept- able to use racial balancing racial imbalance. remedy

For two reasons, at least however, isit wrong place remediation of same segregation as'the remedia- plane tion of racial First, imbalance. above, demonstrated two are concepts distinct. racial imbalance Although can re- jure sult from de does segregation, necessarily, the further we from the era racial get state-sponsored separation, less it is likely that racial imbalance has a See Free- traceable connection to any prior segregation. man, at 496; Jenkins, S., 503 U. S., at 118 (Thomas, U. J., concurring).

Second, a school cannot racial imbalance in the “remedy” same that it can way remedy Remediation of segregation. jure de past is a one-time segregation process involving redress of a discrete legal inflicted an identified injury by At some entity. the discrete will remedied, be point, injury Swann, and the will school district be declared unitary. jure Unlike de S., 402 U. at 31. there no ulti- is segregation, mate for racial imbalance. Individual schools will remedy fall in and of balance course, out the natural and the appro- will shift balance itself with a priate school district’s chang- have to take will Thus, balancing racial ing demographies. no with continuous process basis —a on an indefinite place point. end discernable and no identifiable party culpable out- never permitted has the Court reasons, for those part a of achieving purpose solely right balancing racial balance. particular

II remediation, neither interest Lacking cognizable neither strict because plan these scrutiny can survive plans The dissent interest. serves a state compelling genuinely conclusion avoids accepting reaching by unquestioningly while the assertions of selected social scientists completely fer- those assertions are the subject fact that ignoring cor- vent entire analysis debate. dissent’s Ultimately, it initially considerations that lead rupted by question What whether strict at all. emerges should apply scrutiny hollow assur- scrutiny” version of “strict that combines of conven- ances of harmlessness with acceptance reflexive tional it comes race-based When wisdom. government demands more. the Constitution decisionmaking, A The dissent claims that “the law here application requires , of a standard of that is not ‘strict’ in the traditional review of that Post, sense This view is informed word.” dissents in our cases the concurrences of previous Post, two Court of at 835-836 Appeals judges. (citing (CA9 2005) (Kozinski, J., F. 3d 1193-1194 concurring); (CA1 Comm., School 418 F. 3d 28-29 Lynn Comfort 2005) J., Those lower (Boudin, C. court concurring)). judges reasoned are not “aimed at like programs these oppress- blacks” and do not one racial an give “seek ing group edge Id., 3d, another.” 27; (Kozinski, J., over F. concurring). were further these They persuaded plans from other differed race-based Court con- has programs because more sidered are than laws they benign “certainly 758

that favor or race, disfavor one race, or segregate by create or a Comfort, racial quotas against group,” 418 F. at 3d, (Boudin, J., 28 C. concurring), are “far they from evils at which original the Fourteenth Amendment was ad- dressed,” id., 29; at 426 3d, (Kozinski, F. J., at 1195 concur- Instead strict ring). Kozinski scrutiny, would have Judge analyzed under plans “robust and realistic rational basis Id., review.” at 1194.

These are arguments inimical to the Constitution to this Court’s We have precedents.9 made it clear unusually every strict to scrutiny applies racial classification. Adarand, Grutter, S., 227; John- 515 U. at S., 326; 539 U. son v. California, (2005) (“We 543 499, U. 505 S. have in- sisted on strict scrutiny context, even every for so-called classifications”).10 ‘benign’ racial There are reasons good not to a lesser to apply standard these The cases. constitu- tional with problems government race-based decisionmaking are not diminished in the or slightest ab- by presence sence of an intent oppress race or any real or as- serted motives for the well-meaning race-based decision- Adarand, S., 515 making. U. at 228-229. Purportedly benign race-based suffers the same consti- decisionmaking tutional as infirmity invidious race-based decisionmaking. 9 decisis, post, to stare appeal dissent’s particularly ironic light apparent willingness of its post, depart precedents, from these at 837. 10 government The idea subjected racial classifications must be scrutiny strict Loving in Adarand. As originate v. Vir early did not ginia, (1967), U. S. 1 government this Court made clear that action solely upon according “rest[s] distinctions drawn to race” to be had ” “subjected to Id., scrutiny.’ Korematsu rigid (quoting the ‘most v. States, Florida, United McLaughlin (1944)); U. S. see also 184, 196 (1964) U. drawing S. a (requiring statute racial classification related, “necessary, merely be rationally accomplishment id., (“The permissible (Harlan, policy”); J., concurring) state at 197 necessity equally involving test . be in a applicable . . should case state discrimination”). and concurring Id., at J., concurring part (Thomas, concerned, it (“As as the Constitution far in judgment) are racial classifications a government’s is irrelevant whether those a race or to by drawn those who wish oppress be those thought who have a desire help sincere disadvantaged”). constitutional analysis,

Even it mattered supposing before us are the race-based student-assignment programs at 834-835. believes. See post, not as as the dissent benign can its consequences unintended “[R]aeial paternalism form of discrimi- be as other poisonous any pernicious J.). Adarand, of at nation.” supra, (opinion Thomas, time the demonstrate, government As these every programs post, uses racial criteria to the races “bring together,” an excluded, excluded suffers someone and the gets person his or because of her race. solely petitioner injury from the board the Louisville case received letter school her not kindergartner that her would be allowed informing to attend the because of choosing petitioner’s Doubtless, child’s race. hun- 05-915, No. 97. App. p. dreds of letters boards like this went out from both school these race-based every year were plans opera- assignment race,' tion. This exclusion, basis of solely type races sort of action pits precisely government another, tension, one exacerbates “pro- against have resentment those who believe that they voke[s] among Adarand, been use race.” wronged by government’s J.). at 241 these supra, (opinion Accordingly, Thomas, are more variation on the one plans simply government must race-based held we have consistently decisionmaking Grutter, strict 326. supra, be subjected scrutiny.

B Though dissent admits to discomfort strict applying to these claims have nonetheless scrutiny plans, applied But in exacting standard. its search compelling casually accepts interest, the dissent even the most tenuous plans, grouping interests asserted on behalf of the them all “ “ ” ‘integration.’ post, ‘[Inte- under the term ” gration,’ we are told, has “three essential elements.” Ibid. compelling. None these elements is And the combination produce the three unsubstantiated elements does an any interest compelling represented by more than that each independently. element

1 According integration to the dissent, involves “an interest right setting consequences segre- prior in conditions of gation.” explained above, Ibid. For the reasons the rec- in ords these cases do not demonstrate that either school plan supported past remedying board’s an interest in supra. discrimination. Part I-B,

Moreover, remedying the schoolboards have no in interest sundry consequences prior segregation unrelated to schooling, patterns, “housing employment practices, such as economic conditions, Post, and social attitudes.” at 838. past segregation General that claims affected such amorphous impos- varied societal are trends “too for a basis ing racially remedy,” Wygant, classified S.,U. at 276 opinion), (plurality speculation” “[i]t because is sheer how decades-past segregation might system in the school have Croson, affected these trends, see U. at S., 499. Conse- quently, seeking remedy prob- school boards those societal today lems with in race-based measures schools would have way gauge proper remedy. no scope Id., at 498. geared Indeed, remedial measures toward such broad and logical stopping point,’” unrelated societal “‘no ills have “ageless ibid., and threaten to become their reach into the past, ability Wy- and timeless affect the future,” their supra, gant, opinion). (plurality supra, Grutter, governmental (stating “requirement all at 342 use logical point”). of race must have a end any rem- further interest lack boards Because the school support for the no offers edying segregation, this element “integration.” purported interest integration the interest argues that

Next, dissent that ra- dissent asserts has an educational element. improve outcomes cially educational schools balanced unquestioningly support, the dissent black children. In propositions support research to cites certain social science reality, among hotly disputed social scientists. that are any mixing has apparent coerced racial is far from necessary integration is benefits, educational much less to black achievement. educational differing opinions as to whether

Scholars have balancing. have concluded Some arise from benefits genuine benefits. educational receive that black students Desegregation g., Black Achieve- Mahard, See, & e. Crain Contemp. Prob. & Research, 42 Law ment: A Review of the (Summer 1978). circumspect. more have been Others Ver- Greenberg, Uribe, & g., Schneider, See, Henderson, e. Schooling Stu- dugo, High-Quality African American for 1996) (M. Shujaa Desegregation ed. Beyond 162,166 dents, posi- single desegregation effect, (“Perhaps does not have a African negative, achievement tive or on the academic strategies help, some students, but rather some American It is whatsoever. make no difference others hurt, and still simply demographic issues de- focusing on clear to us that schools”). And some improving focusing tracts from educational demonstrable no that there are have concluded Desegregation and Rossell, e.g., Armor & See, benefits. Beyond the Color Schools, Resegregation in the Public Ethnicity in America Perspectives on Race Line: New 2002). (A. eds. Thernstrom S. 239, 251 Thernstrom & this diver- us mirror before amicus briefs in the cases one amicus boards, Supporting opinion. the school gence of early desegregation assured has us that research “both analyses recent statistical and . .. econometric indicate that positive minority are there student achievement effects on settings.” arising scores Brief from diverse American Educational Association 10. Research Another positive desegregation brief claims has a that “school modest impact on the achievement African-American students.” App. to Brief for 553 as Amici Social Scientists Curiae 13-14 (footnote omitted). spe- Yet neither of those briefs contains magnitude positive cificdetails like the of the claimed effects precise demographic positive or the mix at which those ef- begin fects to be social Indeed, the scientists’ brief realized. cautiously any rather all, claims existence benefit at describing “positive impact” “modest,” id., at 13, ac- knowledging appears that “there no be little or effect on admitting id., “underlying math scores,” 14, and that the gains entirely reasons for these in achievement are not id., clear,” at 15.11 dispute findings.

Other amici reports these One amicus “[i]n study study, composition after aof student body, proves insignificant isolated, when to be an determi- nant of Murphy student achievement.” Brief for Dr. John (“[TJhere p. et al. in No. 05-908, 8; see also id., at 9 is no diversity positively evidence that in the K-12 classroom af- 11At least one of academic articles support the dissent cites to proposition fails to establish causal supposed connection between the gains educational realized black students and racial See Halli mixing. nan, Diversity Evidence, on Student Effects Outcomes: Social Science (1998). pages cites, Ohio St. L. J. 733 following the ones the dissent author article remarks “the main reason and minor white ity perform academically students better in majority likely white schools is greater opportunities these provide words, schools to learn. In other per improves is not se that desegregation achievement, rather but Id., learning desegregated some advantages provide.” schools at 744. good Evidence that for other proxy race is factors be corre might support lated with does not educational benefits in compelling interest results. the use race to academic achieve

76S achievement”). surveys sev- Another amicus fects student com- “a fair and concludes and eral science studies social no there prehensive shows that analysis the research [educational] benefits.” clear consistent evidence and al. 29. Armor et Brief for David J. black fact of science the social

Add to the inconclusive T. See “racially environments. achievement in isolated” (1986). History Assumptions 7-38 Versus Sowell, Education: exemplary example prominent of an Brown, the most Before High Sowell, Education: School. black was Dunbar (“[X]n period History, 1918- Assumptions Versus at 29 Ivy graduates degrees from fifteen 1923, Dunbar earned League colleges, degrees Williams, Amherst, from ten Wesleyan”). exam- Dunbar is no means an isolated ple. (discussing black id., successful at 10-32 other schools); Walker, Can Care? Evidence from Institutions Segregated Schooling Be- Children, in of African American yond Desegregation, Sowell, supra, 209-226; see also T. Study Empirical Action An Affirmative Around World: (2004). pre- Brown, Even schools with 141-165 after some dominantly outstanding ed- black have enrollments achieved g., Carter, ucational results. e. Lessons See, S. No Excuses: High-Performing, High-Poverty 49-50, from 53- Schools (2001); A. Therns- 71-73, 81-84, 87-88 Thernstrom & S. Closing Gap Learning trom, No Excuses: the Racial 43-64 (2003); High- They L. Have Izumi, see also Overcome: (2002) Poverty, High-Performing Schools California predominantly (chronicling exemplary His- achievement California). panic evidence that schools in There also colleges attending historically achieve black students black attending predominantly better academic results than those colleges. S., white Grutter, 539 U. 364-365 (Thomas, (citing part part) concurring dissenting J., sources); 748-749 Fordice, S., see also 505 U. (Thomas, concurring). J., believe that racial itself must Seattle School Board Seattle black achievement. is not

mixing oper- necessary which has a “non- Academy,” ates K-8 “African-American 05-908, 227a; in No. white” enrollment of p. 99%. See App. 05-908, n. That Brief for in No. p. Petitioner Reply effort school was founded in 1990 as board’s part African to “increase See Ameri- academic achievement.”12 can at http.7/www.seattlesehools. online Academy History, (all Internet as materials visited org/schools/aaa/history.htm file). 26, 2007, case June and available Clerk Court’s to the school’s most recent annual According report, excellence” is its “[a]cademic See African “primary goal.” American 2006 Annual 2, online at Academy Report, p. http://www.seattleschools.org/area/siso/reports/anrep/altern/ This imbalanced 938.pdf. racially environment has report- test all edly produced scores across levels in “higher grade and math.” Ibid. reading, writing to what Contrary dissent would have see 839-840, predicted, post, chil- dren Seattle’s African American have shown Academy when in a gains placed “highly segregated” environment. Given this tenuous between forced mix- relationship ing educational improved results black children, dissent cannot maintain an plausibly educational ele- ment supports interest, let integration alone makes it Jenkins, compelling.13 at 121-122 S.,U. (Thomas, course, Of if the Seattle School Board truly were committed to the diversity notion that directly leads benefits, to educational operating school with such a high “nonwhite” enrollment shocking would be a dere liction of duty its to educate the students enrolled that school. fact, the available data from the Seattle school district appear to undercut the dissent’s view. A comparison of the test results year schools the last the racial balancing program operated re (in sults in year the 2004-to-2005 school which student assignments were neutral) race does not indicate the decline black achievement one would expect if black find achievement were contingent upon a particular Washington racial mix. See Card, State Report at http://report online ? card.osplkl2.waus/summaryaspx schoolId=1099&OrgType=4&reportLevel black to think (“[T]here reason J., is no concurring) members well when surrounded students cannot learn integrated are in an they of their as when own race environment”). that the the dissent much, as argues

Perhaps recognizing a demo- is enough permit social science evidence “strong that to determine elected school board reasonably cratically asser- Post, at This this interest is a one.” compelling tion to the school boards —the It is not inexplicable. up we entities practices whose race-based very government must scrutinize —to interests determine what strictly qualify to the under the Amendment Fourteenth compelling United States Constitution. must assess Rather, this Court asserted and nature interest independently evidence to it in whether it order to determine support quali- fies as a under our such compelling precedents. making determination, we have to state authorities only deferred once, see Grutter, 328-330, 539 U. atS., and that deference was factors relevant edu- prompted by uniquely higher (“Our Id., cation. at 328 is in with holding today keeping our tradition of to a a of deference giving degree university’s decisions”). academic The dissent’s test —whether proposed sufficient social science evidence a supports government unit’s that conclusion interest it asserts is compelling— calls to mind the rational-basis standard of review the dissent not to purports 836-837. See Wil- apply, post, Okla., liamson Inc., v. Lee U. S. Optical of (1955) (“It is that there is an evil at hand correc- enough =School; http://reporteard.ospi.kl2.wa.us/summary.aspx?schoolld=1104& reportLevel=School&orgLinkId=1104&yrs=; http://reportrard.ospi.kl2.wa.us/ summary. aspx?schoolId=1061&reportLevel=School&orgLinkId=1061&yrs=; http://reportrard.ospi.kl2.wa.us/summary.aspx?sehoolId=1043&reportLevel =School&orgLinkId=1043&yrs= (showing reading that up, scores went down, when Seattle’s assignment program race-based ended at Sealth School, High Ingraham School, High School, High Garfield Franklin High School —some of the schools most affected the plan).

tion, be might thought the particular legisla- it”). tive measure way was rational to correct Further- more, it our equal would leave protection jurisprudence mercy elected officials government eva- evaluating nescent views of a handful social scientists. To adopt dissent’s deferential would be approach to abdicate our con- stitutional responsibilities.14

Finally, dissent asserts “democratic element” to the integration interest. It defines the “democratic element” as “an interest an producing educational environment reflects the ‘pluralistic which our children will society’ Post, live.” at 840.15 Environmental reflection, though, 14The “feel[ing] that, dissent accuses me of confident to end invidious discrimination, one governmental must end all of use race-conscious crite ria” and chastises for not deferring majori me to democratically elected Breyer’s post, ties. Regardless See at 862. of what Justice goals be, might this Court not society does sit to a “create includes all problems Americans” or to solve the of inner-city schooling.” “troubled Ibid. engineers. We are not social The United States Constitution dic governments tates that local cannot make decisions on the basis of race. Consequently, regardless perceived negative effects of racial imbal ance, I majorities will not legislative defer to where the Constitution forbids it. Breyer’s It escape should no one behind Justice judicial veil of modesty an Judiciary. hides inflated role for the Federal The dissent’s approach judges power say confers on to what sorts of discrimination benign Having are and which are invidious. made that determination (based objective detect), judge on no I can following measure that approach scrutiny dissent’s will set the level of to achieve the desired Only result. judge majority. my then must the defer a democratic view, preferred to defer to one’s is at result not defer all. 15The notion that interest qualifies compelling a “democratic” as a inter (or interest) part compelling est constitutes of a is proposed for the today’s in our first time has basis in or dissent and little the Constitution precedent, narrowly qualify which has as com restricted interests that (2003) (Thomas, pelling. Bollinger, See U. Grntter v. 539 S. 351-354 J., concurring part dissenting part). in in The Fourteenth Amend-

767 just “[preferring And say another balancing. way or than members no other race reason one any group Bakke, 438 own ethnic is discrimination for its sake.” origin J.). U. at “This the Constitution S., Powell, 307 (opinion supra, Freeman, 503 Ibid.; Grutter, 329-330; forbids.” at U. S., at 494. the dissent

Navigating authority, around that inconvenient an in is not end argues that the racial these balancing plans in children to itself but instead intended to engage “teac[h] all races that kind Americans cooperation among one Na million to make a land necessary people Post, in socialization tion.” at 840. These lessons “generic qualify compel are too good citizenship” sweeping Grutter, concur S., (Scalia, J., ling interests. U. at And are ring they dissenting part). part in a ‘teachable’ relevant” to schools or “uniquely “uniquely Id., if Therefore, gov formal educational setting.” balancing ernments use racial may constitutionally use ra achieve these aspirational schools, they may ends level — from cial to achieve similar balancing every goals Friday, 478 U. S. see Bazemore 4-H state-sponsored clubs, (1986) (Brennan, to the J., 388-390 concurring part), Grutter, service, S., state civil U. at 347-348 (opinion see J.). of Scalia, limit,

Moreover, has no durational the democratic interest id., command. at 342 contrary (opinion to Grutter’s Wygant, Croson, S., 498; Court); see also 488 U. al- it will words, In other S.,U. at 275 (plurality opinion). be to learn ways cooperation among important students If measures the races. race-consсious justifies interest race-conscious measures then will today, logically justify in interest, scope limitless Thus, forever. the democratic liberty. understanding minted newly not enact ment does the dissent’s York, (1905) dissenting) J., 45, (Holmes, See Lochner New 75 198 U. S. (“The So- Spencer’s does Mr. Herbert Fourteenth Amendment not enact Statics”). cial future,” id., in at “timeless affect the ability [its] and cannot race-based government justify decisionmaking.16

In defects, addition these the element democratic interest fails on own the dissent’s terms. The integration dissent relies social research to again science upon support that racial proposition teaches state-compelled mixing children to cooperation and racial accept attitudes improves race and relations. Here again, dissent over- though, states the data that supposedly the interest. support dissent data points that indicate that “black and in white students schools desegregated are less racially prej- Post, (in- udiced than those in segregated schools.” omitted). ternal marks account, the dissent’s quotation By in racial attitudes improvements depend increased upon contact between black and white students occur thought in more balanced is no racially schools. There guarantee, however, that students different in the races same school will time actually with one another. spend Schools fre- students academic quently group as an effi- ability aid cient instruction, but such often result in class- groupings rooms with one concentrations of race or high See, another. explain The dissent does not how its of an recognition interest teaching understanding racial cooperation here consistent with rejection Wygant. Wygant, Court’s of a similar interest a school justified teacher-layoff district its program part race-based on the the ory “minority provided teachers ‘role for minority models’ students racially faculty improve ‘diverse’ would education all Grutter, Thomas, J.) supra, students.” (opinion (citing Brief for Wygant, Respondents, 84-1340, 27-28; S., O. T. No. 476 U. pp. (Stevens, J., dissenting)). rejected The Court the interests asserted to Id., justify layoff program insufficiently as compelling. at 275-276 id., J., (plurality opinion); (White, concurring judgment). at 295 If a has understanding cooper school district an interest teaching ation, logical why there no reason interest to the should extend composition teaching composition staff well as the the student body. therefore, is, The dissent’s reliance on this interest inconsistent Wygant. with

769 g., e. Tracks: “Freedom Yonezawa, Wells, Serna, & Choosing 37, Am. Ed. Research J. Schools, in 39 Choice” Detracking Second- 38 First- and (2002); Miekelson, Swann: Subverting in Generation the Charlotte-Mecklenburg Segregation (de- (2001) 215, 233-234 Am. J. Schools, 38 Ed. Research Carolina). Charlotte, in North effect in schools this scribing different students of addition to classroom separation, themselves so- races school may within the same separate Interracial Williams, & Friendship See Hallinan cially. 67, Schools, Rev. 54 Am. Sociological Choices Secondary (1989); Clotfelter, 72-76 Interracial Contact High see also Urban 41-43 Activities, 34 Rev. School Extracurricular (2002). leads even interracial contact Therefore, supposing race rela- in racial attitudes and directly improvements of different races to students tions, a that assigns program those benefits. Simply same schools not might capture not nec- same roof does students under the putting together or learn even mean that the students will together essarily interact. interracial

Furthermore, unclear whether increased re- and relations.17 One contact attitudes improves stated that reviews of searcher has “the desegregation conclusion relations unable to come any were intergroup ...[;] were about what the effects of probable desegregation ra context, reflect the fact that Court’s cases Outside In John harmony understanding. always cial lead to mixing does (2005), a California California, son v. U. this Court considered S. Id., (Thomas, at 525-528 racially. inmates prison policy separated incidents J., of “numerous dissenting). necessary That because policy was id., Id., Court); at 532-534 (opinion of racial violence.” at 502 J., insistence on strict dissenting). of this Court’s (Thomas, As result id., 538-547, California scrutiny inmates in the policy, of that but see (2006) Banks, U. S. 536-537 Beard killed. See prisons were J., two were killed (noting that (Thomas, concurring judgment) decision injured subsequent were this Court’s rioting hundreds race Johnson). all of few, reviewers if virtually determined any, firm conclusions about the on inter- desegregation impact Schofield, relations be group could School drawn.” Deseg- and regation A of Relations: Review the Litera- Intergroup ture, (G. in 17 Review of in Research Education 356 1991). Grant ed. Some studies have even found that a de- in terioration racial attitudes seems result from racial in schools. John, mixing See N. St. School Desegregation (1975) (“A Outcomes for Children 67-68 [the giance data] shows for that either race are less common positive findings than findings”); The Effects of De- negative Stephan, School Brown, An Evaluation Years segregation: 30 After in Ad- 3 vances (M. in Applied Social 181, 183-186 Psychology Saks 1986). & L. eds. Therefore, Saxe it is not nearly appar- ent as the dissent that suggests increased interracial expo- sure leads to automatically attitudes or race improved relations.

Given our case law and the of evidence paucity supporting the dissent’s belief that these relations, race plans improve no democratic can element interest.18 support integration dissent buttress attempts interest integration follows a that by from the claiming interest fortiori Post, Grutter. Court recognized as at 841 compelling of Grutter, -842. merit Regardless the compel interest case ling recognized cannot these support plans. Grutter a interest recognized law compelling a school’s of a attainment diverse student S., body. U. element,” After discussing “democratic the dissent its as repeats sertion that the social supporting science evidence interest is “suffi ciently permit strong school board determine ... that this interest Post, is compelling.” though, Again, the school have no boards say in deciding compelling. whether scrutiny an interest Strict government searching race-based is more than Chevron- decisionmaking style See Chevron Inc. administrative review U. S. A. reasonableness. Inc., Council, Resources (1984). Natural 837, 845 467 U. S. Defense features 328. This was critically interest dependent upon “the education: freedoms unique to higher expansive with the environ- and associated speech university thought oc- ment,” constitutional tradition” niche our “special universities, freedom of cuрied university “[t]he make education[,] its own as to judgments including] Id., (internal selection of its at 329 student body.” quotation omitted). marks in ele- None these features present Those schools do not select schools. mentary secondary their students, own and sec- education elementary in- environment does not the free involve ondary generally an ideas to be terchange thought integral part higher 3d, at (Bea, J., education. See 426 F. Ex- dissenting). Grutter would us to cut to this context tending require loose from its Thus, theoretical holding only by moorings. Grutter’s can dissent rec- claim that ignoring reasoning is an a a interest in these cases ognizing compelling fortiori of Grutter. application

C of the baseless and novel the dissent Stripped interests behalf, asserts on their the school boards cannot plausi- maintain that their further interest. bly plans compelling Grutter, I As in measures the State explained “those only must take to to bulwark ... or provide against anarchy violence” and “a effort to prevent government’s remedy for which constitute discrimination it is past responsible” S., 353, interests. 539 351-352 U. compelling (opinion in Neither part). concurring part dissenting has could race-based stu- parties they argued —that —nor dent is a bulwark assignment necessary provide against or I above, anarchy violence. And prevent explained the school districts have no remedial interest pursuing supra. I-B, these See Part programs. Accordingly, school boards cannot strict These satisfy scrutiny. plans are unconstitutional.

III Most of the result can dissent’s criticisms of be today’s to its traced rejection of the Constitution. colorblind See post, 830. The dissent the notion attempts marginalize of a colorblind me Constitution it to and Mem- consigning ibid.; bers of today’s post, see also plurality.19 862- I 863. But am in the I comfortable quite company keep. view of My is Harlan’s Constitution Justice view color-blind, “Our Plessy: Constitution neither knows nor tolerates Plessy classes citizens.” v. among Ferguson, 537, (1896) 163 U. S. And view opinion). (dissenting my was the for the who rallying cry litigated Brown. lawyers See, e. Brief 1, 2, in Nos. and 4 g., and for Appellants 10 on Respondents No. Brown v. Board Reargument (“That Education, 1953, O. T. p. 65 the Constitution is color belief”); blind our dedicated Brief for in Brown Appellants Education, (“The 8, Board T. No. O. Four- p. teenth Amendment a state from precludes distinc- imposing tions or alone”);20 classifications based race and color upon halfheartedly The dissent attacks the historical underpinnings Post, colorblind I quarrel Constitution. at 829-830. have no with proposition sought bring that the Fourteenth Amendment former slaves Post, society Slaughter- into American as fall (citing members. at 829 (1873)). Cases, House Wall. 71-72 What the un dissent fails derstand, however, is that the colorblind Constitution does not bar government taking past from remedy state-sponsored measures to dis indeed, requires that such measures taken in certain be crimination— circumstances. See, I-B, g., supra. e. Part government Race-based during remedy state-enforced, slavery measures the 1860’sand 1870’sto were therefore not inconsistent with the colorblind Constitution. 20 County Board, 1952, in v. also Juris. Statement Davis T. School O. (“[W]e 191, p. unqualified No. the position take the that Fourteenth totally stripped state of power Amendment has the color make race and action”); governmental Tr. of Oral Arg. the basis for in Brown v. Board of (‘We Education, 8, 1952, p. T. No. one have O. fundamental contention develop the argument, we in which will seek course this and any authority no contention has under the equal-protection is State affording to use race as a clause of the Fourteenth Amendment factor in citizens”); Briggs opportunities among Arg. Tr. of educational its Oral in Thurgood Marshall, Pro- also Honorable see In Memoriam: Supreme of the ceedings of the Court Officers of the Bar and (“Mar- (1993)(remarks Motley) Judge p. United States, X during most de- turned his shall had a ‘Bible’ to which he legal in pressed the be known moments. The ‘Bible’would Plessy in community Harlan’s dissent as the first Mr. Justice (1896). any Ferguson, I know of v. do not 163 U. S. opinion buoyed pre-Brotow more in his which Marshall ”). days ... Equal pin interpretation appears

The dissent its expecta- practice Protection to current societal and Clause likely practical tions, officials, to local conse- deference quences, previous statements from this and reliance ju- other a view in Court’s courts. Such was ascendant risprudence appeared Plessy, in for It several first decades. providing where the Court asked whether a state law segregated railway regulation.” cars was “a reasonable U. S., at 550. The Court deferred to local authorities in making inquiring noting its determination, into rea- necessarily large sonableness “there must be a discretion on part legislature.” paid of the Ibid. The Court likewise practices, heed expectations, practical to societal local consequences by looking usages, established “the customs people, promo- and traditions of the and with view the preservation tion of peace comfort, their public and the good principles, order.” Ibid. Guided these say “[W]e Court concluded: cannot that a law which author- requires separation public izes or even of the two races conveyances or unreasonable, more obnoxious to Four- Congress teenth requiring sepa- Amendment than the acts of rate schools for colored children in District of Columbia.” Id., at 550-551. segregationists arguments Brown embraced the Plessy.

Court Though decisively endorsed Brown re- Elliott et al., (“[T]he etc., O. T. No. 2 p. 50 deprived any state any field”). to make power any governmental classifications a those them to

jected dissent arguments, replicates today’s Thus, extent. the that argues dissent distressing “[e]ach embodies and the results of plan community local experience Post, consultation.” at 848. Similarly, segregationists made and to societal repeated appeals practice expectation. g., Briggs See, e. Brief Reargument for Appellees Elliott, (“[A] has 2, O. T. No. State 1953, power estab- p. a lish school which is efficient administra- system capable conditions”).21 tion, into account local and taking problems The dissent be local to a argues “weight given] [must post, school board’s and concerns,” knowledge, expertise, 848, and with def- equal vigor, for segregationists argued

21See Appellees County Board, also for Brief Davis v. School O. T. (“[T]he 1952, 191, No. p. 1 Court is to outlaw the policies asked ... fixed of the several are States which based on local social conditions known well id., (“For to the respective legislatures”); at 9 purpose, his Virginia tory and present Virginia conditions important”); Arg. are Tr. Oral Board, (“[T]he v. County Davis p. School O. T. No. historical exists, background certainly Virginia situation, in this with all the record, basis, strife and the that we history have shown in this a shows a basis, made”); real id., for (describing the classification that has been 69at the potential of segregation “contrary abolition customs, to the the tra ditions and what we to be might great people, mores claim estab through lished generations, fiercely irrevocably who are themselves and races”). Accord, dedicated to the preservation of white and colored post, later, at 868 (“Today, years almost 50 attitudes toward race in this alike, Nation have changed dramatically. Many white parents, and black want their attend children to schools with children of In different races. deed, the very districts once spumed now strive integration long history it. The of their complexities efforts diffi reveals they faced”); post, culties have at 822 (emphasizing importance “local encouraging “try circumstances” different localities to different solutions to problems gravitate prove common toward those that most (internal successful them best or seem to to suit individual their needs” omitted)); quotation post, at marks (emphasizing school districts’ “40-year during history” which both school districts numerous have tried (“[T]he approaches schools”); integrated “to achieve more post, at 863-864 histories of long Louisville and Seattle reveal complex circumstances and boards”). tradition conscientious efforts local school on for Kansas Brief See, e. g., authorities. erence to local 1953, T. Education, O. Board Brown v. in Reargument of constitutional of a (“We concept only 14 advocate 1,No. p. and local policy of state law that determinations permits the valid- We defend only levels. be and local made on state of Education Board the Topeka enables of the that statute ity to- that course”).22 The dissent argues its own determine dis- a calm for present substitute decision “threatens day’s 803, and post, of litigation,” round race-related ruptive law harm to “risks serious claims that decision today’s also Nation,” segregationists at 865. and for the post, of ending consequences relied likely practical upon Brief See, e. g., of racial separation. state-imposed system 22 Education, O. T. v. Board in Brown Appellees See also Brief for of (“ therefore, shall 8, held, that each state 1952, universally ‘It is p. No. 29 rights itself, for to the of the fundamental subject determine observance Constitution, exercise how it shall by and the federal guaranteed liberties of the states right .... And in field is this several police power no ” Briggs clearly recognized public (quoting more in of education’ than Elliott, Briggs (EDSC 1951))); in 529, 532 Appellees F. Brief for Supp. v. 98 (“Local Elliott, 1952, 101, local affairs self-government O. T. in p. v. No. locality strength peace of each and to the happiness essential to and pro more system. Nowhere is this stability and of our whole federal Briggs education”); of Oral in v. Tr. foundly Arg. true than in the field of (“What Elliott, and 101, great is the national pp. O. T. 54-55 No. very strength that the on Is it not a fact policy federal tiris matter? for system self-government in those matters

fiber of our federal is local govern which local Is it not of all the of competent? action is activities peo nearly approaches ment the one which most hearts and minds height Is it young? of their not the question of the education ple, the be left shall be conducted wisdom in which that should manner it, par that the immediately by to those most wishes affected ents, colored, children both be ascertained before white and should their contact?”). Accord, post, may forced into what are be an unwelcome (“[L]ocal own school boards their communities better understand a knowledge better in will best meet the educational practice have what (“[W]hat pupils”); post, local respect of their democratic needs ibid, boards?”); “that the (explaining decisionmaking by States and school leeway”). significant degree local grants Constitution school districts Davis v. School in County on for Appellees Reargument (“Yet Board, 4, No. holding O. T. p. will in the Constitution result race violates

segregation not now Federal subject in all those places upheaval This has decisions of many Court made scrutiny. judicial affect more more di- effect; none would people widespread interests and, fact, more fundamental cause more rectly chaos local than a reversal of the decision government case”).23 And dissent, the foreshadowing today’s segre- most relied gationists heavily judicial See, upon precedent. e. Brief for g., Elliott, Briggs Appellees Reargument (“[I]t 2, O. No. 59 1953, T. at would be difficult indeed to find a case so favored as is the for by case precedent South here”).24 Carolina

23 also Brief for in Appellees Reply Supp. Brief for the United Board, on Reargument 1953, 4, States in Davis County v. School O. T. No. (“The 17 . . . p. dealing Court with thousands of local school districts and schools. Is to be subject litigation each the of in the District Courts?”); Brief for Reargument Kansas on v. in Brown Board Educa of tion, (“The 1953, 1, O. p. T. No. 51 problem delicate nature of the segre of gation paramount and the interest of the of State Kansas preserving in the internal peace and of tranquility people its indicates that this a question which can level, best be the solved on local Congress least until otherwise”). (“At Accord, declares post, minimum, at 861 a plurality's the views would surge threaten a of litigation. race-based Hundreds of state and federal regulations statutes and use for classifications educa tional or purposes----In many instances, other such the contentious force of legal challenges classifications, not, to these meritorious or would dis calm”); place post, (“Indeed, earlier consequences at 865 the of the ap proach the Court today takes are Yesterday, plans serious. the under not”); review were Today, lawful. are they at 866 post, “fur (predicting conflict”). litigation, ther aggravating race-related 24 See also Statement Appellees of Opposing Jurisdiction and Motion to or Board, Dismiss Affirm in County 1952, 191, v. Davis School O. T. No. (“[I]t 5p. would be difficult to find of from.any legal field law a principle more repeatedly conclusively and sought decided than the one to be raised by appellants”); Appellees Brief for Reargument on in v. County Davis (“If Board, 1953, School 4, O. T. No. were pp. 46-47 this case to be decided solely precedent, the basis of this brief could have much more been limited. ample There is precedent in the to uphold decisions of this Court the and the dissent’s arguments The similarities between Like the dis- do not there. stop segregationists’ arguments sent, cautioned the Court repeatedly segregationists too a not to embrace theoretical consider practicalities And as the view the Fourteenth Amendment.25 dis- just Belton, 1952, in Gebhart v. O. segregation”); Brief for T. Petitioners 448, p. (“Respondents upset long No. Court established ask this and well numerous principle recognized Legislatures, settled state Courts, federal, Tr. years”); both over a of Oral long period state (“But Briggs v. Elliott al., Arg. etc., O. T. be et No. somewhere, doctrine may, what every principle sometime to comes a of repose announced, confidently moment when it been so so has often upon, continued, long relied so passes that it limits of discre- judicial tion and ... disturbance. We relied on the fact that Court had not times, is, once I pronounced separate but seven think it favor of the but equal doctrine. We appeal relied on the fact that courts of last some sixteen eighteen passed validity or States have upon sepa- equal rate but doctrine vis-a-vis the We Fourteenth Amendment. relied on the fact Congress continuously has since 1862 its segregated Columbia”); schools the District of App. Appellees D Brief for Elliott, Briggs T. O. No. 101 (collecting citations of state and fed- [ejnunciate eral eases [principle “[w]hich [providing [s]tate [l]aws [rjacial [sjchools [cjonfliet [segregation do [p]ublie with the Amendment”). (“[T]he Accord, post, Fourteenth set forth in Court Swann principle basic principle constitutional law —a law that has (internal found wide acceptance legal in quotation the culture” marks (“Lower omitted)); post, at 825-826 state federal courts had and consid- ered the matter and settled uncontroversial before even this Court decided Swann”); post, (“Numerous explicitly at 827 state and federal courts relied follow”); post, Swann’s for upon guidance decades to at (stating 828 “how followed Swann’s enunciation lower courts and of understood the relevant (“The legal principle”); post, at principle 831 constitutional enunciated in Swann, cases, reiterated in subsequent upon many years, and relied over provides, widely and has been thought provide, guid- authoritative legal ance”); post, (“[T]oday’s at 861 require will opinion setting aside the laws (“And post, communities”); of several States many local at 866 what happened has to Swann? To McDaniel? To To Harris? Crawford? School Committee To Boston? Seattle School Dist. No. 1? After To of life, of they all, decades plurality’s logic, vibrant would under the be writ- law”). ten out of the 25 Compare Board, Brief for Appellees in County Davis v. School O. T. 1952, (“ 191, No. by at 16-17 ‘It is practical such considerations based on

778 will lessen over the need for these programs

sent argues on that reliance time, segrega- claimed segregationists end.26 tion was eventually lessening might What in 1954 be What- today.27 was cannot wrong right ever else the Court’s rejection of segregationists’ argu- experience rather than that the of question theoretical inconsistencies ” Railway equal protection Express Agency, be answered’ (quoting York, 106, 110(1949))); v. New 336 U. S. Appellees Reargu Inc. Brief for on (“The Board, 1953, 4, in v. County ment Davis School No. O. T. at solve; subject question practical is a one them to it is not to solution in the realm Oral in principles”); Arg. Briggs theoretical of abstract Tr. of al., (“[Y]ou 1953, etc., Elliott O. T. No. talk v. et about this cannot discussion”), problem just in a vacuum in manner of a law with (“The post, Pounders meant a practical Constitution as document”). Brief for on 26 Compare Reargument Kansas v. Brown Board Edu (“[T]he cation, 1953, 1, O. No. at 57 people T. ... are Kansas abandoning policy segregation whenever local conditions and local attitudes feasible”); it make Appellees Brief for on Reargument County Davis v. (“As Board, 1953, 4, School O. T. No. at 76 passes, may time well be that end”), segregation post, will (“[T]hey with at 820 use race-conscious crite (“[E]ach ria limited gradually ways”); diminishing post, at plan’s use race-conscious compared elements is diminished to the of race use integration in preceding plans”); post, (describing at 855 “historically districts). diminishing use race” the school 27It is no answer to say that these cases can distinguished be from Brown because Brown involved invidious racial classifications whereas the racial classifications benign. post, here are at 863-864. How does one tell when racial classification is invidious? The segregationists in argued Brown benign, their were racial classifications not invidious. al., 1953, etc., See Tr. of inArg. Oral et O. T. Briggs Elliott No. 2 at 83 (“It [South good Carolina] is confident of its faith and produce intention to equality for all of its race or color. It children whatever is convinced the happiness, welfare of progress and the these children is best promoted schools”); in segregated Appellees Brief for Reargument (“Our Board, Davis v. County No. School O. T. many 82-83 hours of investigation only research and led have to confirmation of our segregation by view that in Virginia’s public race schools at this time not only does not offend the of the United Constitution States but serves to races”); provide a better education for for the children of both living Tr. of Board, 191, Arg. County Oral in Davis v. School O. T. at 71 No. made established, it certainly have ments in Brown might the from take cannot and local governments clear that state of race the basis decisions on make a right Constitution and local govern- fact that state The by adverse possession. for a of race long on the basis discriminating ments had been that ra- The fact Brown Court. to the time irrelevant was communi- to the relevant cial was preferable discrimination the fact the Brown Court. And ties was irrelevant statements had relied on the and governments state local to the Brown Court. was irrelevant this Court’s opinions the of None decision. today’s same guide principles the the is relevant dissent by considerations trumpeted be- race-based of the school boards’ plans constitutionality de- of collection contextual cause no contextual detail —or from the tails, post, princi- 804-823 —can “provide refuge our the Constitution, may that under government ple Adarand, S., 515 U. make on the basis race.” distinctions J., concurring concurring part (Thomas, judgment).28

(“[T]o transition, doing, make such undo what have been a would we the for uplift which we continue the and advancement propose to do on- stop progress, education both races. would march this It this for of this Court to sweep”). height arrogance ward is the Members It others. blindly assert their are better than motives id., (“It laws urged that state [these 8-9 has been also supported and duration validity long of a policies] consequence derive decisions, expressions including possible long made line of judicial time, urged some of of this At same Court. decisions ex constitutionally social permissible these are as a laws valid matter of decisis, I submit perimentation by the On of stare States. the matter persuasive, is not that the while it challenged practice, duration of the in question controlling.... experimentation, As a matter of social laws satisfy While this Court has requirements must Constitution. officially act permitted experimentally States to or legislate otherwise fields, always and held that recognized in the social and economic it has Constitution, power is and that subject to the limitations of the met”); Appellants Reply of the Constitution Brief tests must be etc., Briggs v. Elliott al., pp. 18-19 Reargument T. No. et O. 780 place the the Constitution, colorblind dissent would measures to

permit and proscribe the races keep together measures to the keep races See at apart.29 post, 829-835, no such is Although distinction in the Four- apparent teenth Amendment, the would dissent constitutionalize to- faddish day’s social theories that that embrace distinction. The Constitution is if not that malleable. Even current so- cial theories favor as classroom racial engineering necessary to “solve problems the the hand,” post, Constitution enshrines principles of social theories. independent (“The 163 Plessy, S.,U. (Harlan, J., white dissenting) race deems be in itself to this dominant race country. so in is, And it in achievements, education, prestige, wealth and I it So, not, doubt will continue to be power. for all .... time But in view of the Constitution, the eye law, there is no dominant, this country superior, ruling color-blind, class citizens. . . Our . Constitution is citizens”). and neither nor knows tolerates classes among Indeed, if history our has us it has taught anything, taught (“The truth attempt of the matter is that an place local mores high and customs equalitarian principles above the of our Government set forth in particularly our Constitution and the Fourteenth Amendment. This entire saying contention is tantamount the vindication and enjoyment rights recognized of constitutional present this Court as personal can postponed postponement be whenever such to be claimed desirable”). socially complicated questions attending dissent does face pro not its posed example, standard. For where does the principle stop? dissent’s government Can the against being mixing force racial the will those government mixed? Can the black white force families relocate to neighborhoods in bringing together? the name of the races What about historically colleges, have pro black which “established traditions grams might disproportionately appeal to one race or another”? United, Fordice, (1992) States 717, 749 (Thomas, J., concurring). U. S. questions The dissent these con does and cannot answer because the entirely eye propounds tours of the rest in the distinction beholder. See, e. g., theories.30 bearing elites to beware of

us (1857) (“[T]hey 393, 406, 407 19 How. Sandford, Dred Scott v. which had no rights race”] African “negro [members be we really Can to respect”). bound white man was Scott motivated Dred theories the racial sure that will be theories that future or are relic of past Plessy Breyer’s doubt, have the I intentions, do not which Justice good Breyer’s I dissenters, am un Unlike tenure. shelf life of Justice boards to local school responsibilities my constitutional willing delegate on the as decisionmaking race-based with experiment and allow them to Justice as good remain as will forever their intentions sumption Breyer’s. 1961) (“If (J. 51, men Cooke ed. p. 349 See Federalist No. The Indeed, the the racial necessary”). would be angels, government were no dissenters should cause the ories the Seattle School Board endorsed power with the be entrusted local school boards should question whether Web The Seattle school district’s on basis of race. make decisions racism”: following definition of “cultural formerly site contained “ overtly covertly attribute value and aspects society ‘Those and devalue, whiteness, stereotype, and and normality to white and people than, invisi “other,” different, them less or render of color as people label nude white skin tones as defining these norms include Examples ble. orientation, individual colored, emphasizing or flesh a future time having English one form of ideology, defining opposed ism as to a collective more Examples Harrell, Web Site Removed: as See School standard ....’” 2, 2006, June Post-Intelligencer, Controversy, Seattle Sparked Racism the comfort removed, offered Bl, the district pp. B5. After the site was “ ‘to hold onto unsuccessful the site not intended ing clarification that was Ibid.; mentality.’” see also pot or colorblind concepts melting such as ante, 730, (plurality opinion). n. 14 high school stu- delegation recently,

More the school district sent Equity and Race Rela- to a Privilege dents “White Conference.” Conference, http://www.seattleschools.org/area/ Privilege tions White participant One conference equityandrace/whiteprivilegeconference.xml. of unearned assets package “an invisible privilege” described “white I which was meant day, but about cashing I count on in each which can weightless knapsack an invisible like Privilege remain oblivious. White visas, tools, codebooks, clothes, and special provisions, maps, passports, Answers, Conference, Questions and Privilege blank checks.” See White Westneat, Ob- District’s generally see http://www.uccs.edu/~wpc/faqs.htm; racial Race, Times, p. (describing Bl Apr. Seattle sessed with schools). issues Seattle That is a but beneficent

nothing gamble progressive? I am it is Constitution take, one does unwilling not allow.

[*] ^{[*] [*]} before base school plans assignment us decisions color-blind, race. students’ Because Constitution “[o]ur citizens,” and neither knows classes nor tolerates such ‍​​​​‌​​​‌‌‌‌​​​​​​‌‌​​​‌‌‌‌‌‌‌​​‌​‌‌​​​‌‌​‌‌‌​‌​‍among Plessy, race-based is unconstitutional. decisionmaking supra, J., at 559 I (Harlan, concur in The dissenting). Chief Justice’s so opinion holding.

Justice Kennedy, concurring part concurring the judgment.

The Nation’s schools strive to teach that our strength comes from races, creeds, different people and cultures in commitment to the freedom of uniting all. these cases two school districts in different of the parts country seek to teaсh that principle by classrooms that having reflect makeup surrounding That community; school districts consider these to be plans should necessary remind us our highest are aspirations yet unfulfilled. But the solutions mandated these by school must districts them- selves be lawful. To make race matter now so that it might not matter later entrench the may we very seek prejudices to overcome. view my the state-mandated racial clas- issue, sifications at official labels of race proclaiming all in a broad class of persons elementary school citizens — case, students in one school students high another —are unconstitutional as the cases now come to us.

I with The Chief agree Justice that we have jurisdiction to decide the cases before I us and Parts II of join and I Court’s also Parts opinion. III-A rea- join and I1I-C sons below. provided views do not me My allow join balance of the The by Justice, opinion Chief which seems to me to be inconsistent in both its its and approach implica- tions with the history, and reach Pro- meaning, Equal Breyer’s on opinion, dissenting tection Clause. Justice submission what hand, my respectful rests on the other of our precedents. interpretation a mistaken misuse and are view, that, my This advance propositions leads basic with equal conflict both erroneous and in fundamental opin- this separate As a consequence, protection principles. two cases in the conclusions ion is to set forth my necessary before the Court.

I Breyer’s dissent- and The the Court opinion Justice (hereinafter dissent) in detail his- describe ing opinion These in Louisville and Seattle. efforts tory integration and benefits individuals race and allocate plans classify be sub- result, burdens a are to basis; on that they Johnson v. to strict California, scrutiny. jected (2005); ante, at 720. finds U. S. 505-506 The dissent have interest school districts identified compelling for the avoiding increasing diversity, purpose including isolation. See post, 838-845. plurality, by contrast, does not that the school districts have acknowledge ante, identified a here. See at 725-733. interest compelling For this III-B reason, others, I do Parts join among definition, IV. is a Diversity, its depending meaning district educational compelling may pursue. goal It is well when a established that governmental policy to strict has the subjected “the burden scrutiny, government ‘are that racial tailored narrowly classifications proving measures that interests.’” governmental further compelling Johnson, Constructors, Adarand Inc. supra, (quoting Peña, (1995)). “Absent U. S. searching judi- cial into race-based inquiry for such meas- justification ures, there is what no classifica- way simply determining tions are or and what classifications are ‘remedial’ ‘benign’ fact of racial in motivated notions inferiority by illegitimate Co., v. J. A. Richmond Croson or racial 488 simple politics.” (1989) And the 469, U. S. 493 (plurality opinion). inquiry 784

into less restrictive alternatives demanded the narrow analysis tailoring requires many thorough in cases under- standing plan government of how works. The bears justifying of burden of its use individual racial classifications. part establish, As of that it in detail, burden must how deci- on sions based an individual student’s race are made in a challenged governmental program. County The Jefferson Board Education fails to meet this threshold mandate. Crystal challenges Petitioner Meredith the district’s deci- deny requested her son sion to McDonald a Joshua transfer kindergarten his for enrollment. The district it concedes request guidelines,” say, his denied “under the which is to Respondents basis of Joshua’s race. Brief for in p. App. p. 05-915, 10; No. see also 05-915, No. Yet the guidelines apply also district maintains that the do not “kindergartens,” Respondents for 05-915, 4, Brief in No. explain discrepancy. and fails record, Resort including parties’ stipulation facts, further confuses (“Transfer App. appli- the matter. See in No. at 43 05-915, space cations can be denied or, because lack available grades Primary (kindergarten), for students other than guidelines assign- the racial in the District’s current student (“The plan”); assignment ment plan id., student does 1”); apply Primary Stipulation to ... students see also p. Facts No. Doc. 3:02-CV-00620-JGH; Exh. (2003-04 County Elementary Jefferson Public Schools Stu- B) Assignment Application, (“Assignment dent Section Primary (Kindergarten) made to a through school for long guidelines Five Grade as are If racial maintained. Primary (Kindergarten) placement does not enhance application completed balance, a new be must Pri- (Grade One)”). mary 2 discrepancy simple straight- identified not some only upon peripheries

forward error that touches district’s use individual To the con- racial classifications. trary, County briefing explained Jefferson has how and its in terms so broad only when it these classifications employs scrutiny. cannot strict withstand and that imprecise they g., See, e. 05-915, 4-10. in No. at for Brief Respondents are used racial classifications While it that acknowledges clear, for it fails to make decisions, certain make assignment is if what decisions; any oversight who makes the example, in an the which assignment circumstances employed; precise or how race; the basis of decision will or will not made on be will it is which two situated children similarly determined ibid.; see be to a race-based decision. See subjected given 38, also in that decisions 05-915, No. at App. (indicating ex are “based on the racial without further ... guidelines” id., at 81 that forth the blanket mandate planation); (setting with shall with each other and “[s]chools work cooperatively that at all schools [in central office ensure enrollment to en is annually within question] guidelines at all toward enrollment schools courage progresses Mc id., 76-77, 81-83; 43, guidelines”); midpoint Cty. Schools, Public Farland v. Jefferson 2d F. Supp. (WD 2004). 834, 837-845, 855-862 Ky. here,

When involves a litigation, “complex, comprehen- sive for achieving that contains multiple plan strategies 05- Brief in No. schools,” Respondents racially integrated become all more problematic these ambiguities result. the contradictions and confusions light g., (“Each e. 05-915, [Jefferson in No. App. Compare, school . has attendance . . County] designated geographic school[, area’ of the area, which called the ‘resides for those students such school the ‘resides school’ each] is within address or residence whose parent’s guardian’s id., (“All elemen- area”); school’s at 82 attendance geographic which serves the school students ... shall be assigned tary reside”); Brief for Respondents the area which they (“There for ad- criteria at 5 are no selection 05-915-, No. school, resides student’s] mission elementary [an attainment of the and completion apрropriate age except (“Deci- 05-915, with at 38 previous grade”), No. App. sions each are assign students to schools within cluster based on available within the schools and space [elementary] the racial current the District’s student guidelines assign- id., ment 82at student plan”); (acknowledging may be to his or her school if it “has assigned resides reached ... the extremes of the racial guidelines”).

One can to a construction of attempt Jefferson identify student County’s that, at least assignment as a plan logical matter, with complies these but this competing propositions; does not remedy Jefferson problem. underlying County to fails make clear to in this Court —even the limited re- by Joshua’s initial and spects implicated transfer assignment denial —whether in fact it relies in a classifications manner tailored to the interest in narrowly rather question, in than inconsistent, ad far-reaching, and hoc manner that a less reading record would forgiving suggest. When a court to subjects governmental action strict scru- it cannot construe in tiny, of ambiguities favor the State. As for case, the Seattle the school district has further gone criteria to describing methods and determine as- used decisions on the signment basis individual racial classifi- g., e. See, cations. Brief for 05-908, Respondents No. district, 5-11. The nevertheless, has failed make an pp. adequate least one It has failed to showing respect. in a explain district races, why, composed diversity with than fewer “white,” half students classified as it has the crude racial employed “white” and categories “non-white” as the for See, basis its assignment decisions. g., id., e. at 1-11. “(1)

The district has as identified its follows: purposes educational benefits promote diverse school enroll- (2) ments; reduce harmful effects of racial potentially isolation out of student's the by allowing opportunity opt (3) schools; racially isolated to make sure that racially non-white did not segregated housing patterns prevent the most access to popular equitable students from having Id., at 19. Yet the school district over-subscribed schools.” diverse stu- of its context how, in the does not explain between “white” a blunt distinction dent population, As the explains, Court these “non-white” furthers goals. students and Asian-American “a school with 50 percent African-American, Native- no white students but percent balanced, as would American, qualify or Latino students Asian-American, 25 percent while school with 30 percent white Latino, and African-American, percent 25 percent Ante, Brief for 724; also United see students would not.” Far 05-908, Amicus Curiae 13-14. pp. No. States this system tailored to its from purposes, being narrowly district has the school ends, own threatens to defeat its for its Other design. no convincing explanation provided need there is no but are evident Seattle’s system, problems fails to account district now. As the to address them what appears chosen, it has despite classification system be narrowly its to ill has not shown fit, plan be its Seattle to ends; and thus it fails pass its own tailored to achieve strict scrutiny.

II to has preserve Our from the inception sought Nation on it was which and equality the of liberty expand promise in its that is remarkable we founded. enjoy society Today is to beyond our tradition go Yet openness opportunity. and to achievements, recognize however significant, present This is remain. and injustices and confront the flaws is that opportunity assurance when we seek true especially is that hope The enduring account of race. not denied on it does. too often is matter; should not the reality race submission that This is of to by way preface my respectful all-too- an imply opinion by parts The Justice Chief in instances be a factor insistence that race cannot unyielding The view, plural- it taken into account. when, in bemay my interest gov- is too the dismissive of legitimate ity opinion have has in equal opportunity ernment all ensuring people that “[t]he of their race. The postulate regardless plurality’s to of on basis race is to discrimination way stop stop ante, race,” is not suffi basis of discriminating cient to decide these experience eases. since Fifty years Education, Brown Board v. S. 483 (1954), U. should teach us that the defies so before us solution. problem easy Brown’s objective School districts can seek to reach of equal educational is at least opportunity. plurality opinion to the Constitution open interpretation requires districts ignore problem resegrega defacto tion in I cannot endorse that conclusion. schooling. To extent the Constitution man plurality opinion suggests dates that state and local school must authorities accept status of racial schools, is, isolation in it quo view, my mistaken. profoundly

The statement by Justice Harlan that “[o]ur Constitution is color-blind” was most in the certainly justified context of Plessy Ferguson, his dissent (1896). U. S. The Court’s decision that case awas it error took grievous Plessy, far too to overrule. long course, concerned official classification race to all by who applicable persons sought use an railway And, as carriages. Justice Har- aspiration, lan’s axiom must command our assent. In the real world, it it regrettable say, be cannot a universal constitutional principle.

In the administration public schools the state local authorities permissible consider the racial makeup schools and to adopt general policies encourage a diverse student one of body, aspect which is its racial com- Bollinger, position. Cf. Grutter v. 306 (2003); id., 539 U. S. at 387-388 If dissenting). school authorities J., (Kennedy, are concerned that the student-body compositions of certain schools with interfere of objective an edu- offering equal cational to all of their opportunity students, they are free devise race-conscious measures to address in a problem in different each student treating and without general way individual typing basis of a systematic, fashion on the solely race. by together

School boards goal bringing may pursue races other and through diverse students of backgrounds schools; of new means, site selection including strategic with general recognition attendance zones drawing for spe- resources allocating demographics neighborhoods; a cial and targeted faculty students recruiting programs; other enrollments, and fashion; tracking performance, but These are race conscious statistics race. mechanisms by classification do not lead to different based a treatment so race, shе is to be tells each student he or defined by be strict it is of them demand scrutiny would unlikely any Vera, 517 U. S. found See Bush permissible.

(1996) (“Strict does apply opinion) scrutiny (plurality conscious- because merely with performed redistrieting ness . lines race ‘facially of race. . . Electoral district are neutral,’ so a more before necessary searching inquiry cases strict in redistricting can be found scrutiny applicable than in on race’” cases ‘classifications based explicitly 213)). Adarand, S., U. Executive legis- (quoting branches, lative now considered which for have generations these should be permitted policies types procedures, that a them confidence con- with candor and with employ decision- stitutional does not occur whenever a violation maker considers a have on given approach might impact to each student students different races. Assigning to a crude of individ- personal designation system according matter; and the ual racial classifications is different quite legal changes accordingly. analysis in- its

Each has asserted respondent assignment is no dividual because there students race is permissible other to avoid racial isolation in the school districts. way Yet, each failed explained, provide support has Croson, S., at 501 for that Cf. 488 U. necessary proposition. (“The this of racial in classifications history country suggests or that blind executive judicial deference legislative pro- in nouncements has no place equal protection necessity analysis”). And individual racial classifications employed if manner be considered may only legitimate they id., a last a are resort achieve interest. compelling J., concurring part concurring (Kennedy, judgment).

In the cases before us it is that the noteworthy number of students whose on assignment depends express classi- fications is limited. I Part join III-C of Court’s opinion because I in the context that of these agree plans, small number affected assignments the schools suggests could have achieved stated their ends different through means. These include the race-neutral means set facially forth above if or, nuanced, more necessary, individual eval- uation school needs student characteristics that might race include The latter component. would be approach Grutter, informed course the criteria relevant though to student would placement differ based age students, needs of the parents, and the role schools.

Ill The dissent rests on the these assumptions sweeping race-based classifications of persons are exist- permitted by precedents; its ing confident endorsement of race cate- gories each child in a of the large segment community no presents danger individual in other, freedom prospec- tive realms of and that the racial governmental regulation; classifications used here cause no hurt or anger type the Constitution Each prevents. of these is, premises my view, incorrect. respectful

A The dissent’s reliance on this Court’s to justify precedents classwide at issue explicit, racial classifications sweeping, that, me, here is a of our authorities appears misreading needed to tends well-accepted guard undermine principles his of that I am in analysis, our freedom. critique And with in many respects agreement The Chief Justice. in

conclusions he forth Part III-A Court’s opin- has set correct, ion are the interests view, in because compelling my in us distinct from the inter- the are cases before implicated the of Court in effects ests the remedying has recognized in diversity and intentional discrimination past increasing ante, in As at 720-723. the Court higher education. in we nature of the interest notes, the recognized compelling v. in intentional discrimination Freeman remedying past Pitts, (1992), U. 494 the in diver- 467, 503 S. and of interest time, in same these in Grutter. At the higher education sity view, in inform interests, do the compelling my help present in- And to the extent can be opinion inquiry. plurality I interests, these dis- foreclose consideration of terpreted with that agree reasoning. it to the conclusions which dissent,

As upon general no result in the broad relies have limit and would principled far racial classifications in areas acceptance governmental afield from The dissent’s strict scru- schooling. permissive (which than a bears more resemblance passing tiny review) invite widespread governmental rational-basis could reason There classifications. every deployment Con- if were that, rationale accepted, to think the dissent’s of its exercise spending an otherwise assuming proper gress, either the or commerce could mandate Se- authority power, There nationwide. attle or the County Jefferson plans limit the moreover, be no dis- rule, seems to principled The dissent rationale to the schools. sent’s context public 848-849, his- control, local at unique see post, emphasizes the fact at of school see tory post, desegregation, see these than make less use race plans prior plans, 857-858, more rhetorical than but these factors seem post, opinion. to the structure of the analytical integral This us to the dissent’s reliance Court’s opin- brings Bollinger, Grutter, in Gratz v. (2003), ions 539 U. S. S. If U. dissent said was today’s adhering in Gratz and Grut- views expressed separate opinions ter, Gratz, S., J., see 539 U. at 281 concurring (Breyer, id., id., J., judgment); at 291 dissenting); (Stevens, id., J., at 298 J., dissent- dissenting); (Souter, (Ginsburg, supra, Grutter, J., at 344 ing); concurring), (Ginsburg, understandable, be would within the likely tradition —to view, be invoked, rare my instances —that us permits stare decisis to maintain own face our positions g., e. when See, fundamental doctrine are stake. points Federal Maritime Comm’n South Carolina Ports Author- ity, (2002) J., 535 U. S. To dissenting). (Stevens, that we however, must racial say, ratify the classifications here at issue based Gratz the on and majority in opinions Grutter is, with all respect, simply baffling.

Gratz involved where was the race not entire system in Gratz classification. The much re- procedures placed less liance race than do the at issue here. The in plans issue Gratz arose, moreover, of the context admissions college where had students other choices and precedent supported the that First proposition give Amendment interests univer- Regents sities latitude particular defining diversity. Univ. Bakke, Cal. v. (1978) U. S. 312-314 of J.). of Powell, Even so the race (opinion factor was found supra, Gratz, If Gratz is to be invalid. at 251. the be measure, here are the systems classification fortiori If invalid. the dissent were to are cases say college not simply applicable public systems kindergar- ten school, this through high would seem but me wrong, lеast an no arguable distinction. Under fair reading, Gratz can the be as though, majority cited author- opinion to sustain the under ity racial classifications consideration here. in Grut-

The be said for the controlling opinion same must ter. There found, was that, a system sustained the Court elements account “all flexible to take into pertinent enough (internal marks S., quotation U. at 341 diversity,” omitted), only many, and one factor among considered race id., contrast, a mechan- relies upon at 340. plan, by Seattle’s their ical formula has hundreds students pre- denied n rigid ferred the of three criteria: placement schools on basis If schools, and those stu- distance from race. siblings, dents were for a whole of their talents range considered Grutter consideration, one school needs with race as just That, is not the case. would have some application. though, Grutter must can The dissent draw from only today’s support in the opinion be found its various separate opinions, filed for the Court.

B to brush is asked To these Court uphold programs determining aside two central importance concepts alleviate hurt laws decrees validity designed race discrimina- and adverse from consequences resulting jure de tion. first is difference between defacto of a segregation; second, invalidity presumptive its State’s use of racial differentiate treat- classifications ment of individuals. of Brown addressed Court

In the immediate aftermath jure de enforced other where laws and practices instances g., Virginia, Loving (1967) See, e. S. 1U. segregation. City Improvement Assn. Park New Orleans v. (marriage); curiam) Detiege, (per (1958) 54 (public parks); 358 U. S. curiam) Gayle (per Browder, (1956) (buses); v. 352 903 U. S. curiam) (per Atlanta, Holmes (1955) v. 350 (golf S. 879 U. Dawson, Mayor City and Baltimore Council of v. courses); curiam) (beaches). (per (1955) But with refer- S. 350 U. most schools, to of wrong proved ence the legal effect to school districts difficult To wrong, correct. remedy choice, whether had had no been law by segregated voluntary to desegrega under court or supervision pursuant efforts, includ extraordinary measures tion but to resort to individual student teacher schools assignment and ing e. See, v. Charlotte-Mecklenburg Swann based race. g., Croson, Ed., Bd. S., 1, 8-10 U. S. see also 488 U. (1971); J., in at 519 part concurring concurring (Kennedy, that racial classifications be the judgment) (noting “may only after that a remedy State adequate judicial determination or its has violated Protection instrumentality Equal Clause”). was, observes, So it see as the post, dissent 814-815, Louisville children classified race its by in the 1970’s. assignment busing plan Our cases a fundamental difference between recognized de jure those school districts that had engaged segregation and those whose was the result other factors. segregation in de jure districts that School had had engaged segregation an affirmative constitutional duty those that desegregate; were School did not. Compare Green v. segregated defacto Bd. New Kent Cty., 430, 391 U. S. 437-438 (1968), with Milliken (1974). Bradley, 418 U. S. The distinc- tions between de jure de extended to segregation facto the remedies available to governmental units addition to the courts. For Ed., v. Jackson Bd. Wygant example, U. S. 274 (1986), the plurality noted: “This Court never has held that societal discrimination alone sufficient a racial justify Rather, classification. in- Court has sisted some upon prior discrimination showing gov- ernmental unit involved before limited use racial allowing classifications in order to such remedy discrimination.” Croson, Court’s decision in supra, reinforced the difference de between the remedies available to and de redress facto jure discrimination:

“To claim accept past [a] societal discrimination alone can basis serve for rigid preferences be would the door claims for ‘reme- open competing dial relief’ every The dream disadvantaged group. race in a where citizens society aof Nation of equal and achievement irrelevant opportunity personal based mosaic of shifting preferences would be in a lost of wrongs.” claims past on unmeasurable inherently Id., at 505-506. an victim, true, it is injury

From the standpoint as when the can hurt much from prejudice racial stemming bias race stems from based on identity treatment demeaning order when it is imposed masked the social within deep The between government private law. distinction by as a historical furthermore, can both action, be amorphous Laws fact. matter and as a matter present-day finding vice versa. Neither can assign arise from a culture and injustices. other all persisting responsibility other can Yet, overlap like so categories many legal de distinction between instances, the constitutional some jure and de an im- to be has been thought segregation facto It its function must be conceded primary one. portant in the Judiciary school cases was to delimit the powers g., supra, Milliken, e. 746. See, of remedies. fashioning how- not to be altogether disregarded, distinction ought issues, all ever, racial when we to that most sensitive of come an to treat whole classes per- attempt government sons on classi- systematic based differently government’s too, the distinc- There, fication race. of each individual by reaches tion as a on exercise of a serves limit power Reduction of authority. to the constitutional very verge for differential identity an individual assigned an actions our govern- the most treatment is among pernicious bur- ment can The allocation governmental undertake. circumstances, under any benefits, dens and contentious made basis are even more divisive when allocations e.g., Bakke, 438 See, racial classifications. of individual Adarand, S. 265; 515 U. S. U. of benefits concerns, these allocation

Notwithstanding was found racial classifications burdens individual through for de remedies jure sometimes the context permissible there is Where there has been de wrong. jure segregation, a and the courts cognizable legal legislatures wrong, have broad The to was remedy, it. power remedy though, limited in time and The limited to the Court has wrong. allowed school de districts their to remedy prior jure segre- gation based on by individual students their race. classifying See North Swann, Carolina Bd. Ed. v. 402 U. 43, S. 45-46 (1971). The limitation of this power instances where there has been de jure serves the confine na- segregation ture, extent, and duration of reliance on indi- governmental vidual racial classifications.

The cases were here the upon argued assumption, come to us discrimination in premise, ques- on. tion did not result from de actions. And when jurе defacto discrimination is at issue our tradition has been that the re- medial rules are different. The State must seek alterna- tives to the classification and differential treatment indi- viduals race, at by least absent some extraordinary showing here. present

C The dissent refers to an filed Kozinski in opinion by Judge one the cases now us, before and that relied opinion upon an opinion filed Chief by Judge Boudin a case presenting an issue similar to the one here. See at 836 post, (citing (CA9 2005) F. 3d 1162, 1193-1196 (concurring opinion), turn Comm., School citing Lynn F. 3d Comfort (CA1 2005) (Boudin, C. J., concurring)). Though may the matter bit, one of oversimplify the main concerns un- those was If derlying this: it is opinions legitimate authorities work avoid racial isolation in schools, their must do so they only by indirection and general policies? Does the mandate Constitution this inefficient result? Why the authorities not may recognize in candid problem fash- ion and solve it altogether through resort to direct assign- ments based racial on student classifications? So, argu- perhaps race is then problem, is the proceeds, if race ment the solution. by individual dangers presented argument ignores the pressing when are not dangers that

classifications, When by means. indirect more are achieved same ends de- first race, it must government an individual classifies exactly white Who to be of a race. fine what it means a state- to live under be forced who is nonwhite? To dignity of indi- with is inconsistent mandated label an individual society. And it is label that in our viduals powerless change. classifications Governmental based people directions to march different command practice typologies The cause a new divisiveness. racial can as an not discourse, serves where race can lead to corrosive bargaining heritage a instead as element of our diverse but political race- chip process. other hand On the rely treatment on conscious measures that do not differential problems present based on these individual classifications degree. a lesser problem, if instrument idea that race is the race is the analytical accepted

with an which to solve it cannot be duality frustrating leap if this forward. And is a Equal simply duality of our Protection reflects Clause history attempts promote a that and our freedom in world against sometimes set our seems it. Under Constitution identity, own can individual, adult, child or can find his define persona, intervention that classifies her own without state skin. on the of his the color of her basis race or ^{[*] [*] [*]} obligation

This has a to fulfill its Nation moral and ethical society creating integrated historic commitment to an that equal compel- opportunity ensures of its A for all children. ling avoiding interest interest isolation, exists in an may expertise, a school district, in its discretion pursue. may it a Likewise, choose to consider district compelling population. interest to student achieve diverse may component diversity, Race be one but other de- mographic plus special factors, needs, talents and should also permitted government be considered. What is not showing necessity classify do, absent a is to here, not made every assign student on the of race and to each basis of them to schools based classification. Crude measures of this sort threaten to reduce children to racial chits valued supply according and traded to one school’s and another’s demand. response:

That statement, sure, be invites A sense stigma may already separated become fate of those by beyond out circumstances their immediate control. But replication to this the so, must Even be: measures other than typing differential treatment based on racial of individuals first must be exhausted. today prevent

The decision should not school districts from continuing important bringing together work of students backgrounds. racial, different ethnic, and economic Due variety to a government, factors—some influenced neighborhoods some in our communities do reflect not— diversity of our Nation as a whole. Those entrusted directing public with bring our schools can to bear the cre- ativity experts, parents, administrators, and other con- way cerned compelling citizens to find a achieve the to inter- they resorting widespread ests governmental face without to ¿nd allocation of benefits on burdens the basis of racial classifications. explanation judgment

With I this concur in the the. of Court.

Justice Stevens, dissenting. join I eloquent

While Breyer’s and unanswer- Justice entirety, able appropriate dissent in its is these it add words. irony

There a cruel in The Chief reliance on Justice’s Education, our in Brown decision v. Board 349 U. S. 294 of

799 of paragraph in the (1955). concluding sentence The first Brown, schoolchildren were told “Before states: his opinion based go not and could where could they reminds Ante, sentence This at 747. of their color skin.” equality majestic “[T]he of France’s observation: me Anatole under to sleep alike la[w],. poor rich . . forbid[s] their bread.”1 streets, and steal in the bridges, beg black it was only note that fails to The Chief Justice indeed, the history ordered; were who so schoolchildren to at- struggling stories white children do not tell books The Chief and other ways, tend black schools.2 im- Court’s most of one of this rewrites the history Justice ante, will be (“history at 746 decisions. Compare portant Quarterman, with Brewer v. 275 550 U. S. heard”), (“It (2007) is a familiar J., (Roberts, adage C. dissenting) victors”). by is written history the racial conclusion that Chief Justice rejects at issue be viewed than classifications here should differently others, do on one alone because burdens race they impose and do not or ****8The exclude.3 stigmatize only justification 1 (The (W. 1922). Lys Le Red 6th ed. Rouge Lily) Stephens 95 transí.

2 (1979) See, e.g., From Brown Wilkinson, Bakke (“Everyone 11 J. v. Board Education that Brown helped Negro understands deliver the Black, bondage”); from over three centuries of The Lawfulness legal (1960) 421, 424-425 Decisions, too, Segregation (“History, J. 69 Yale L. race; us that segregation imposed tells was on one race the other Segregation required. up consent was not invited or in the grew South kept only the white race has going because because wanted hardly with way incontrovertible fact which itself consorts —an equality”). 3 I have a long adhered to the that a decision to exclude member view minority fundamentally of a because his different race is from decision to include a See, g., of minority e. Adarand member for that reason. Constructors, Peña, (1995) Inc. v. 200, 243, 248, (Stevens, n. U. S. Ed., J., Wygant dissenting); (1986) Jackson Bd. U. S. (same). This is critically important distinction in the context of educa While minority the focus of is often on opinions tion. our benefits ante, еducation, see, g., e. schoolchildren receive from an integrated (Thomas, J., concurring), all races integrated benefit from children dif the obvious importance refusing acknowledge a few recent ference is citation of opinions —none even proclaiming which approached unanimity grandly — must be under “strict scru racial classifications analyzed all Constructors, Peña, Adarand Inc. See, v. e.g., tiny.” (1995). Even of our wisest 200, U. S. two federal today, a have such of the rejected wooden judges reading Equal in the Protection Clause context of school See integration. (CA9 2005) 1162, 426 F. (Kozinski, 3d 1193-1196 concur J., Comm., School v. Lynn ring); 1, 418 F. 3d 27-29 Comfort (CA1 2005) (Boudin, J.,C. The Court’s misuse concurring). of the three-tiered approach equal analysis protection reconfirms own merely view that there my one such only Boren, Clause Constitution. See v. 429 U. S. Craig **4 (1976) 190, 211 (concurring opinion).4 If we look cases decided the interim during between n Adarand, Brown we ca see how a adherence to rigid (“[T]he playgrounds, Wygant, S., classrooms and see 476 U. at 316 fact that persons do, indeed, of different races differently skin, have colored may give rise to a belief that there is some significant difference between such persons. of minority inclusion process teachers the educational inevitably dispel tends to that illusion whereas their only exclusion could it”). tend to foster 4The Chief Justice twice my Klutznick, cites dissent in Fullilove (1980). ante, 448 U. S. case, 730-731. In that I stressed the importance remedy confining past a for wrongdoing to the members injured S., cases, class. See 448 U. at 539. The present unlike Fullilove but like our in Wygant, decision 476 S. require U. tous “ask whether the Boardfs’] action[s] the public advancEe] in educating interest id,., children future,” J., for the (Stevens, at 313 dissenting) (emphasis added). (“In my See ibid. opinion, necessary it is not to find that the Board of guilty Education has been of racial discrimination in past support the conclusion a legitimate has interest employing more future”). Adarand, S., black teachers in the See also 515 U. at 261-262 (“This (Stevens, J., dissenting) program, then, part if in remedy discrimination, past importantly forward-looking response most practical subcontractors”). problems by minority faced Brown’s clear tiers of Perhaps obscures message. scrutiny the decision the best our of approval is example provided of Massachusetts in 1967 of the up Judicial Court Supreme racial in that mandating integration state statute holding Comm. Boston v. See School State’s school system. of ***5 227 Education, Board 693, N. E. 2d 729.5 Re 352 Mass. of those that the plurality jecting arguments comparable the of noted: “It would be court today,6 height accepts if with the act, the racial imbalance enacted as it was irony laudable of educational purpose achieving equal opportuni ties, should, allocations based by prescribing pupil school 5The Chief Justice imbalance states the Massachusetts ante, 739, at n. require express Act did not classifications. expressly Supreme This is incorrect. The Massachusetts Judicial Court stated: every munici- requires

“The racial imbalance act the school committee of pality annually percentage of nonwhite showing submit statistics pupils in all in the board finds public schools and each school. Whenever school, give that racial imbalance exists in a it shall written notice public committee, to elimi- appropriate prepare plan which shall nate imbalance and term “racial imbal- copy file a with the board. ‘The public ance” refers to a ratio and other students in between nonwhite composition schools with the racial sharply which out of balance society pur- in and work. For the study, which nonwhite children serve section, when the pose of racial imbalance shall be deemed exist fifty per in excess of per any public cent of nonwhite students in school is ” Mass., 695, cent 352 total number of students in such school.’ 2d, 227 N. E. at 731. 6 (“It ante, but of the facilities inequality at 746 was not the Compare race on which on the basis of legally separating the fact of children 1954”), with Juris. State relied to find a violation in Court constitutional Education, 1967, T. No. School Comm. Boston v. Board of O. ment Education[,] (“It 759, v. Board 347 U. S. 483 Brown p. implicit [(1954)], constitutionally impermissible or standard for that color race is a We construe Brown assignment of school public children to schools. Plessy Fergu endorsing Mr. Justice Harlan’s classical statement son, [(1896) (dissenting opinion)]: 163 U. S. ‘Our Constitution is ”). color-blind, among and neither nor tolerates classes citizens’ knows race, on on founder shoals Fourteenth unsuspected (footnote Id., 2d, Amendment.” 227 N. E. omitted). our the Boston

Invoking mandatory jurisdiction,7 appellate an Our plaintiffs prosecuted this Court. appeal ruling the merits was stated that simply appeal “dismissed want of a substantial federal School Comm. question.” (1968) Boston v. Board Education, 389 S.U. cu (per riam). That our decision only appraisal expressed of the merits the but it constitutes a that appeal, precedent the Court overrules The statements today. subsequent by the in unanimous Court v. Swann Charlotte-Mecklenburg then-justice Ed., Bd. 1, 16 (1971), 402 U. S. by Rehnquist of in Ed., chambers in Inc. Los v. Bd. Angeles 439 Bustop, of U. S. 1380, (1978), 1383 of the host state-court deci by sions cited by 825-828,8 see were post, Justice Breyer,

7In mandatory jurisdiction provision 1968 our was defined the 929; 1948 1257, § Judicial then Code codified at U. S. 62 28 C. see Stat. provision 1988, repealed was in see Stat. 102 662. 8 Comm, For example, prior Boston, to our decision in School of Supreme Illinois unpublished opinion Court had issued an holding uncon stitutional a similar eliminating statute aimed at racial imbalance public in Comm, schools. See Juris. Statement in School Boston v. Board of of Education, (“Unlike 1967, 759, Court, O. No. at 9 T. the Massachusetts Supreme recently Illinois Court has held its law to eliminate imbal ground ance unconstitutional on the that it Equal violated the Protection Amendment”); ibid., Clause of the However, shortly Fourteenth n. 1. after we dismissed Massachusetts suit for want of a substantial federal question, the Supreme Illinois upheld Court reversed course and its stat Breyer published ute extensively decision that Justice quotes Ed., his Waukegan dissent. City See Tometz v. Board Dist. School of 61, (1968). No. Ill. 2d 39 237 N. E. In so doing, 2d 498 the Illinois Supreme Court explicit acted reliance our decision in School Comm. 599-600, 2d, (“Too, 2d, Boston. See Ill. 237 E. N. at 502 of 15,1968, United January States Supreme appeal Court on an dismissed (Mass. 1967) Education, School Committee Boston Board N. E. 2d which challenged providing the statute for elimination of racial imbalance in ‘for public want question.’ schools substantial federal 572”). 389 U. S. fully disposition. today’s deci- consistent with that Unlike they entirely loyal Brown. sion, were also changed significantly sinсe decided has Court Comm, It was then more faithful School Boston respectful precedent of our than it is more Brown and today. my that no Court It is firm conviction Member joined agreed today’s that I have with decision. in 1975would Breyer, with Stevens, Justice whom Justice Justice Ginsburg Souter, and Justice join, dissenting. longstanding two

These cases consider the efforts of local public integrate their schools. The school boards to many adopted plans board others in the before us resemble secondary throughout years by primary last 50 schools plans represent local the Nation. All of those efforts bring integrated racially education that about the kind of (1954), ago long Education, Brown v. Board U. S. promised repeatedly required, has Court —efforts permitted, encouraged local authorities undertake. recognized public This interests at stake Court has approved “compelling.” in such of “nar- eases are We have rowly plans conscious than the tailored” that are no less race plans before And that the us. we have understood Constitu- permits adopt desegregation plans tion local communities require even to do so. where it does not them plurality past pays inadequate law, The attention to this opinions’ language, their and the contexts in rationales, they a it reverses course and result, which arise. As wrong doing prece- it so, In distorts reaches conclusion. principles, misapplies dent, it it the relevant constitutional by legal announces rules that will state and obstruct efforts governments effectively growing local deal with the re- segregation public of to substitute for schools, it threatens litigation, present disruptive calm a round of race-related integrated primary promise and it of undermines Brown’s sought secondary have communities education that local to make a reality. This cannot be justified name of the Equal Protection Clause.

I

Facts The historical and factual context in which these cases arise is Brown, critical. held Court that the govern- ment’s segregation of schoolchildren race by violates the Constitution’s promise equal protection. Court em- phasized “education is the most perhaps important func- tion of state and local governments.’’ 347 U. S., And set thereby Nation on a toward path public school integration.

In dozens of eases, subsequent this Court told school dis tricts previously law what segregated by must do at they minimum to Brown's constitutional holding. with comply The measures required those cases often included race- conscious such practices, as mandatory and race- busing based restrictions on e. See, transfers. Colum voluntary g., Bd. Penick, bus Ed. v. Davis 449, 455, U. S. 3 (1979); n. v. Board School Comm'rs Mobile Cty., U. S. 37-38 (1971); Green Bd. School New Kent Cty., 391 U. S. (1968). 430, 441-442

Beyond those minimum requirements, the Court much left of the determination of how to achieve to the integration judgment local Thus, communities. to race- respect conscious desegregation measures that the Constitution per- mitted, (measures but did not require similar to those at issue here), this Court stated: unanimously

“School authorities are with traditionally charged broad to formulate and power implement educational policy conclude, well might example, order to to live in students prepare pluralistic society each a prescribed school should have ratio of Negro white students reflecting proportion for the district as a whole. 7b do this as an educational is within licy po discretionary powers the broad school authorities.” Charlotte-Mecklenburg Ed., Bd. 1, Swann v. 402 U. S. (1971) added). (emphasis acting result, As a different districts —some under court acting decree, some to avoid lawsuits, order threatened seeking comply orders, some with federal administrative acting purely voluntarily, acting some some after federal adopted, courts had modified, dissolved earlier orders — experimented plans, with hosts of different kinds of includ- ing plans, objective: greater all race-conscious with a similar integration public schools. See F. Welch & A. (1987) Light, p. Desegregation, New Evidence on School v (hereinafter Welch) (prepared for the on Civil Commission Rights) (reviewing sample districts, 125school constitut- ing public experi- 20% of national enrollment, school had nearly plans mented years). with 300 different over 18 techniques employed range that different have districts voluntary programs mandatory reassign- “from transfer particular plans Id., ment.” design And has by specific been “dictated both the law and the needs of the district.” Ibid. brought

Overall these efforts racial in- about considerable tegration. recently, progress however, More has stalled. Between 1968 1980, the number of black children attend- ing minority a school where than children constituted more (from half of the school fell from 77% to 63% the Nation South) 81% to 57% in the but then reversed direction (from year rising 2000, from 63% to 72% in the Nation 57% South). Similarly, to 69% in the between 1968and attending number of black children that were more schools (from minority 90% than fell from 64% 33% in the Nation South), direction, 78% 23% the but that too reversed (from rising by year 2000from 33% 37% the Nation South). 23% to 31% in almost million As of 2.4 public students, or 5% enrollment, over of all attended population these, with schools a white of less than 1%. Of only 2.3 million were students, black and Latino 72,000 Today, were white. more than in six black one at- children minority. Appendix tend a school that is 99%-100% A, light sys- In the evident risk of a return school infra. law) resegregated, (though many tems that are in fact not in school districts have felt to maintain or a need to extend integration their efforts. upshot myriad operating is that school districts

myriad myriad plans, circumstances have devised often with eradicating elements, race-conscious all for sake of ear- segregation, bringing integration, lier school pre- about or venting retrogression. Seattle and Louisville are two such present plans districts, and the of their histories set forth typical integration school stories. length

I highlight describe those histories order to important three features of these First, cases. the school plans “compelling districts’ serve interests” and are “nar- rowly any tailored” on reasonable definition of those terms. (caused jure segregation Second, the distinction between de by systems) (caused, g., segregation school e. defacto discrimination) housing patterns generalized or societal meaningless present thereby dooming plu- in the context, rality’s support endeavor to find for its views in that distinc- racially tion. Third, real-world efforts to substitute diverse (however caused) racially segregated schools com- are plex, point plausibly to where the Constitution cannot be interpreted categorically out rule all local to use efforts means that are “conscious” of the race of individuals.

In both Seattle and Louisville, local school districts began highly segregated with schools that were In fact. plaintiffs claiming both filed cities, lawsuits unconstitutional segregation. Louisville, In a Federal District found Court segregation pre-Brown sepa- that school reflected state laws rating plaintiffs alleged In Seattle, the races. unconstitutionally segregation only gen- school reflected not housing pat- eralized societal discrimination and residential terns, but also board that had policies actions helped create, maintain, and aggravate segregation. In In Louisville, a federal court entered a decree. remedial Seattle, settled parties after school district pledged cities, undertake the school both desegregation plan. boards adopted plans achieve designed integration by about more In each bringing city, diverse schools. racially the of, school board modified its several times plan light for the example, hostility threat of busing, resegregation, and the desirability of student choice. introducing greater And in each city, school boards’ have evolved over plans time that ways use of progressively diminish the plans’ explicit race-conscious criteria.

The histories that follow set forth these basic facts. They are based for ease upon sources, numerous which of exposi- tion I have with cita- cataloged, along their corresponding tions, at B, Appendix infra.

A Seattle 1. Segregation, 1956. after World During just II,War numbers of significant black Americans began make Seattle their home. New black residents lived outside the central section of the Most worked at unskilled city. jobs. black made students about 3% of the Although up total mid-1950’s, Seattle in the all black population nearly children attended schools where majority population was in central minority. schools were Elementary Seattle between Garfield, 60% and 80% black; central district school, was high more than 50% schools outside minority; central and southeastern sections Seattle were virtually all white. 1956 to 1969. Preliminary Challenges, In

memo for the Seattle Board seg- School reported but reflected not regation housing only segregated patterns school board also white students policies permitted restricting transfer out black while transfer schools parents black students into white black schools. (with Elementary whose children attended Harrison School 75%) population a black student of over wrote the Seattle (cid:127)“ complaining board, for the Harrison that the ‘boundaries Elementary School were set accordance with long-established standards of School District . . but . arbitrarily excluding with end to were set an colored chil- adjacent School, dren from McGilvra which is to the Harrison school district.’”

In 1963, at the insistence of the National Association (NAACP) People the Advancement of Colored other community groups, adopted the school race- board a new policy. policy explicitly based transfer an new added irrespective place racial criterion: If a exists in a school,then, may of other transfer a white to a criteria, student transfer predominantly may school, black and a black student transfer predominantly to a white school. high time,

At school, Garfield, one was about two- minority; eight high virtually thirds schools were all white. program’s year, 1963, the transfer first 239 black students (of and 2,200 In white students transferred. about total) 10,383 of the district’s black and about 400 of students plan. advantage the district’s white students of the took program For the next decade, annual transfers remained at approximately this level. Legal Challenge

S. First The NAACP’s and Seattle’s Re- sponse, 1966 to 1977. In filed a federal NAACP against claiming lawsuit board, school that the board “unlawfully unconstitutionally” “established]” had and and system public “racially segregated “maintain[ed]” a complaint public The ele- schools.” that 77% of black said mentary city’s 86 school students in attended 9 of the Seattle , elementary remaining schools had schools and that 23 of the Similarly, stu- 1,461 no black students at all. black 1,151 Seattle, dents senior schools in enrolled the 12 high (or (61.6%) 78.8%) schools, and 900 3 senior high attended attended school, a Garfield. single

The school board had brought complaint charged about en- by segregated system part “mak[ing] certain “draw- “rules and forcing]” regulations,” part . . . lines” school attendance ing boundary “executing that would create and maintain policies” “predominantly or schools,” non-white and in schools Negro building part by “in such manner toas restrict and the Negro plaintiffs class or non-white they represent predominantly Negro schools.” The also dis- the board complaint charged criminated teachers. assigning

The board to the lawsuit responded by introducing plan race-based required transfers and mandatory busing. created three new plan middle schools at three school in the white buildings north end. It then predominantly created a “mixed” student to those schools body by assigning students who would white, otherwise attend predominantly or black, predominantly schools elsewhere. It used explic- (i. e., itly criteria these making delib- assignments erately to the new assigned middle schools students, black not white students, from the black schools and white stu- dents, schools). students, black from the white And it used busing students their new transport assign- ments. The plan provoked considerable local opposition. Opponents a lawsuit. brought But a state court eventually found that was lawful. mandatory busing

In 1976-1977, the involved the of about plan busing (300 middle students black students and 200 white students). Another 1,200 black students 400 white students in the participated previously adopted voluntary transfer program. about 2,000 Thus students out of a total district of population 60,000 about were students involved in one or the other transfer At time, about program. the the were black. And 12,000

20% or district’s students to describe of its 112 schools as board continued “segregated.” Second 1977. The NAACP’s Legal Challenge, another

the NAACP filed this time with legal complaint, Health, Education, federal and Welfare’s Of- Department (OCR). fice for The Civil Rights alleged that complaint Seattle School Board had created or unlawful perpetuated e. g., certain school-transfer crite- segregation through, ria, a construction built new program needlessly schools areas, white district criteria, line-drawing mainte- nance inferior facilities at black schools, the use of explicit racial criteria in the assignment teachers and other staff, general pattern delay respect implementa- tion of promised efforts. desegregation

The and the OCR school board entered into a formal set- tlement The agreement. agreement required board Plan,” what became implement known as the “Seattle 5. The Seattle Plan: Mandatory Busing, 1978 to 1988. The board began implement Seattle Plan in 1978. This labeled plan “racially imbalanced” school at which any of black students percentage exceeded more than 20% the minority population the school district aas It whole. label to 26 applied schools, schools— including high (72.8% (76.6% Cleveland minority), Franklin Gar- minority), (78.4% field (58.9% Beach minority), Rainier minority). (or “triaded”) plan paired “imbalanced” black schools with “imbalanced” white It schools. then some placed grades third and (say, fourth at one grades) school building and other grades fifth (say, and sixth at the grades) other And it building. thereby all required, example, fourth students grade from the black and previously pre- white viously schools first to attend together what would now be a “mixed” fourth at one of the grade school buildings and then the next year attend what would now be “mixed” fifth at the other grade school building. a that time, previous

At provided the same plan black, 50% while previ- “black” remain about school would It about two-thirds white. remain ous “white” school would care which decide with some was necessary consequently “mixed” For grade. students attend the new would each makeup administrators purpose, cataloged met its per- The school district neighborhood block. housing ap- new “mixed” school an to the centage goals by assigning “white” blocks and housing number of “black” propriate house to time, the same from transport blocks. At housing all stu- school extensive with about half of involved busing, to their dents than the one closest school other attending home. the school integration

The Seattle Plan achieved for exam- Just to the sought. prior plan’s implementation, e., “imbalanced,” i. schools were high Seattle’s ple, “white.” exclusively “black” or almost exclusively almost 1980, only By two were out “balance.” By only it) (as defined out of “balance” the board Cleveland remained and that a mere two students. to its

Nonetheless, Plan, busing, provoked the Seattle due Wash- generally serious within the State. See opposition 457, 461-466 1, 458 U. S. ington v. Seattle Dist. No. School (1982). an initiative Thus, voters enacted state Washington assigned state law students to be amended to require The Seattle Id., their at 462. schools closest to homes. of the initia- School Board challenged constitutionality initiative— held that the Id., tive. at 464. This Court then Plan from taking which have would Seattle prevented Id., at 470. the Fourteenth Amendment. effect —violated white Choice, many 1988 to 1998. By Student Asian families district, many left had the school families fallen from had population moved public had in. makeup The racial 100,000 less than 50,000. about black, white, 24% 43% amounted to school population and Native with Islander, Hispanics Asian or Pacific 23% Americans the rest. The cost making up busing, harm members of all racial feared communities that the caused, Plan families Seattle the desire to attract white back schools, to the interest public providing greater school led the to and choice board abandon to substi- busing tute a student new resembles the assignment policy plan now us. before

The new each to choose the plan student school permitted he to attend, or she wished to subject race-based constraints. In to schools, for a high student was respect example, given a schools, list of a subset of the selected board carefully to racial balance distribution the district by including schools and schools in different neighborhood racially neigh- borhoods elsewhere in the The student could city. then choose schools, those a among choice, first indicating other the student In choices found an acceptable. making to a school, district assignment particular the would high first to give a student with a preference sibling already the school. It second to a student whose gave preference race a differed from race that was at the “over-represented” (i. e., a school race that accounted for a higher percentage the school population than total district population). It third to students gave preference the residing neighbor- hood. It fourth gave students who preference received child care In a neighborhood. year, typical say, 20,000 about school potential students high participated. About 68% received their first choice. Another 16% re- ceived an A choice. further 16% were “acceptable” assigned to a had they school not listed.

7. The Plan, Current 1999 to the Present. In 1996, the school board which in adopted present plan, began In so, it the use of racial criteria doing sought deemphasize and to increase the that a student would likelihood receive an at his first or second choice high school. The assignment district retained a tiebreaker for oversubscribed schools, which takes if the school’s or only minority effect 30% outside of a centered range falls enrollment majority ratio district. within population minority/majority all were free time, subsequently At the students same were school at which they initially placed transfer from the without to race. to a regard different choice school their one at a year would have Thus, worst, spend student or not as first second choice. school high he did pick for two new expected worked plan roughly (1999-2000 it was effect school which years during 2000-2001). with year, example, 2000-2001 class tiebreaker, the racial ninth the entering grade with- 60% minority Franklin School had a population; High would out same class at Franklin the racial tiebreaker (We consider have had an 80% almost minority population. that class students only only entering the ninth since grade tiebreaker, because the was were to the plan subject an entire place change composition long enough school.) tie- 2005-2006, In the racial the which time year by breaker had been for Franklin’s over- years, used several all the During enrollment had risen to 90%. minority period stu- the affected about 300 tiebreaker applied, typically re- 90% of all students dents Between 80% and year. per 89% 97% ceived their choice and first between assignment; their received first or choice assignment. second ob- Schools Petitioner Parents Involved in Community Fed- under recent the State and jected Seattle’s most plan course, Washington eral Constitutions. In due Supreme and the Court, Court, District Cоurt Appeals Federal banc) en rejected challenge for the Ninth Circuit (sitting and found Seattle’s lawful. plan

B Louisville 1956, two In Lawsuit, years to 1972. 1. 195U Before re- no made clear that could Kentucky longer after Brown Edu- Board of law, the Louisville quire segregation cation created student assignment geography-based plan designed help achieve' school At the integration. same time, it an adopted under open transfer which policy approx- 3,000 imately students 46,000 for Louisville’s applied transfer. however, By the Louisville School District remained half the highly dis- segregated. Approximately black; trict’s public school about half was enrollment was white. Fourteen of nineteen the district’s nonvocational middle and or totally were close black to- high schools tally white. Nineteen of the district’s forty-six elementary schools were between 80% and 100% black. Twenty-one ele- schools were 90% mentary between and 100% roughly white. Guidelines Court-Imposed and 1972 to 1991. Busing, civil rights unconstitu- groups parents, claiming tional sued segregation, the Louisville Board of Education in federal court. became a original litigation eventually lawsuit against Jefferson School which County System, in April 1975 absorbed Louisville’s schools combined (For them with those ease suburbs. surrounding I still exposition, shall use “Louisville” to to what refer districts.) now the combined After preliminary rulings an eventual for the in the victory plaintiffs Court of Appeals for the Circuit, Sixth the District Court 1975 entered July an order requiring desegregation.

The order’s reflected requirements enlarged) (newly school district student 135,000, about population approxi- whom mately 20% of were black. The order required school board create and maintain schools with student ranged, schools, between populations elementary black, (with 12% 40% and and for ex- schools one secondary 12.5% ception), between and 35% black.

The adopted District Court also a complex desegregation achieve the re- plan targets. order’s The designed plan zones, schools, school attendance redrawing quired closing of students, selected and the first by race busing groups names, letter of last to schools outside their their immediate were initial busing requirements The neighborhoods. plan’s students 23,000 extensive, busing involving in the had to from early fleet that “operate transportation students, For until evening.” typical late in the morning (several more for years meant several years for plan busing students). The white black for students than typical typical newspaper in a Louisville notice, following published race-based busing plan district’s sense of how the gives operated practice: 18, 1976 J. Courier-Journal, June (reproduced

Louisville Wilkinson, From Brown Bakke: Court Supreme (1979)). 1954-1978, Integration p. School The District monitored implementation plan. Court it found that the had all of Louisville’s plan brought “ within “at schools its for racial ‘guidelines’ composition” It a substantial three years.” least portion [previous] that it active docket while removed case from its stating continue to those board “to implement portions expected of a their which are nature order desegregation effect.” continuing

By compliance 1984,after several schools had fallen out of percentages with the shifting order’s racial due to demo- graphics community, in the the school board revised its de- segregation plan. doing In so, the board a created new ra- namely “guideline,” “floating cial range a of 10% above and average countywide grade 10% below the for the different simultaneously levels.” The board redrew district bound- aries so that middle school students could attend the same years high school for three and school students for four years. “magnet” programs high It added at two schools. adjusted alphabet-based system grouping And it its and busing plan students. The board its estimated that new (with reassignment busing) lead to would annual of about 8,500 black students and about white 8,000 students. Project Renaissance, Student Choice and 1991 to 1996. By assigning 1991,the had elementary board concluded that during school students to or two more schools their elemen tary years proved educationally school had and, unsound if Kentucky’s newly adopted continued, would undermine Edu consequently nearly cation It Reform Act. a conducted year-long plan; doing widely review of its so, it consulted parents community, with and other members of the local using public public presentations, meetings, and various public’s input. other methods to obtain the At the conclu adopted plan, review, sion of this the board a new called “Project emphasized Renaissance,” student choice.

Project again guide- Renaissance revised the board’s racial provided elementary lines. It that each school would have population a black student 15% 50%; between each high population middle and a school would have black population range, white that fell within the boundaries of general which at 15% were set above and 15% below the population percentages county grade student in the plan geographical assign- level. The then drew new satisfy designed guidelines; ment zones the district these reassign particular could if to meet students schools failed do was so if a school repeat- guidelines required missed these edly targets. a schools,

In the first drew plan to respect elementary school, and around each it then elementary line neighborhood schools drew a elementary second line around groups (called his “clusters”). each student to It assigned initially or it each student school, her but permitted neighborhood within each to schools elementary transfer between freely ‍​​​​‌​​​‌‌‌‌​​​​​​‌‌​​​‌‌‌‌‌‌‌​​‌​‌‌​​​‌‌​‌‌‌​‌​‍(1) was cluster the student black provided transferring if to a a black school pre- from predominantly transferring (2) was if school, transferring white or white dominantly from a to a black school white predominantly predominantly to elemen- could attend school. Students also magnet apply schools or tary programs. to as-

The each middle student be school plan required student or her school unless the his neighborhood signed was a middle school. and for, applied accepted by, magnet The for school Every enrollment. plan provided “open” high 9th or in the 10th could school any sys- grader high apply tem, and school the would high accept according applicants need attain to set of which consisted of the criteria —one remain in racial or with plan’s guidelines. compliance schools, each one created two new Finally, magnet plan at the school and levels. middle elementary The Current Plan: Renaissance Modified, Project to 2008. Board, In 1995 and the Louisville School with 1996, Team,” community meetings, help special “Planning monitored and other and unofficial study official groups, effects of considered for Renaissance and Project proposals the board modified improvement. Consequently, Renaissance, Project thereby creating present plan.

At the time, the district’s was public population ap- 30% black. redrew The proximately plan consequently 15%at to 50% the boundaries “guidelines,” setting all schools. assignment redrew school It black again the transfer opportunities And boundaries. expanded available elementary middle school pupils. The plan forbade transfers, if however, the transfer would lead to a school population outside the e., i. if it guidelines range, would create a school where fewer 15% or than more than 50% of the students were black. also plan established Assistance “Parent Centers” to

help parents students the school selection navigate assignment It process. the use other pledged resources in order to “encourage all schools to achieve an African- American enrollment equivalent average district-wide African-American enrollment at the school’s ele- respective or mentary, high middle school level.” And the plan contin- ued use of schools. magnet several parents lawsuit in brought federal court the use racial

attacking plan’s guidelines one the district’s schools. magnet They asked the court to dissolve the order to hold desegregation and the use of school magnet racial guidelines unconstitutional. The board disso- opposed lution, that “the arguing old dual had left a system” “demo- imbalance” that graphic In “prevent[ed] dissolution.” after the the dis- reviewing present plan, District Court solved the 1975 order. It wrote that there was “overwhelm- evidence of the ing Board’s faith good with the compliance Decree and its desegregation It underlying purposes.” added that the Louisville School Board had “treated the of an ideal integrated as much than system more a legal consider a obligation they desirable and positive, policy — an essential of any element well-rounded school public education.”

The court the magnet also found available programs the high school in were “not available at other question schools” the It high school held un- district. consequently constitutional the “targets” use race-based ad- govern mission ordered not And it the board magnet schools. use control access to the those scarce programs through racial targets. to the Subse- Lawsuit, 2003 Present.

5. The Current desegregation quent dissolution to the District Court’s (in 2000) simply implement its continued to order board magnet plan school to reflect the court’s as modified petitioner Crys- us, now before In determination. plan’s challenging brought un- Meredith, tal lawsuit portions, portions ordi- modified those that dealt with e., i. nary, magnet, Both the District Court and schools. rejected Appeals Mere- Court of Sixth Circuit challenge aspects plan dith’s held the unmodified constitutional.

C The histories I have set forth describe the extensive and ongoing bring greater efforts two school districts to about integration public of their cases the schools. both part began integra- efforts were in remedial. Louisville its tion efforts in earnest when federal court in 1975entered desegregation integra- order. undertook its Seattle response filing tion efforts of a federal lawsuit segregation complaint as a result of its settlement of a filed with the federal OCR. plans grow in both Louisville Seattle out of these problems

earlier remedial efforts. Both districts faced periods segregation, reflected initial of severe racial followed by busing, such remedial efforts as followed evidence of resegregation, busing followed a need to end and encour- age g., through the return of, e. suburban students increased formulating plans student choice. When under review, upon experience both districts drew their with considerable plans, having earlier policies periodically revised their light experience. rethought of that districts their Both explored range methods over time and a wide other including policies. means, non-race-conscious Both districts widely also considered elaborate studies consulted within their communities. sought greater integration

Both districts for educa- tional and democratic, remedial, as well as reasons. sought objectives Both preserving to while achieve these g., goals, their e. commitment to other educational district- high quality public schools, wide commitment to increased assignment pupil neighborhood schools, diminished use of busing, greater flight, risk of choice, student reduced white plans Consequently, present and so expand forth. stu- they (including busing) choice; dent limit burdens that plans imposed upon earlier had students their families; they gradually use race-conscious criteria limited and diminishing ways. they particular, use race-conscious only criteria population- mark the outer bounds of broad ranges. related futility looking histories also simply make clear segregation jure whether earlier school was de or defacto

in order to separating draw constitutionally firm lines permissible constitutionally from the forbidden use of “race- suggests conscious” criteria. that will Justice Thomas easy identify jure segregation be “[i]n de because most cases, there either will or will not have a been state constitu- amendment, tional statute, state local ordinance, or ad- local policy explicitly requiring separation ministrative of the Ante, races.” (concurring opinion). n. our But precedent recognized jure has that de can discrimination be present racially explicit even the absence of laws. See (1886). Hopkins, Yick Wov. 118 U. S. 373-374 disputes No segregation one here that Louisville’s was de jure. But what about Seattle’s? Was it de De facto? jure? Opinions A prior mixture? differed. Or is it adjudicated federal court had not the matter? Does make a Is free on say difference? Seattle remand its jure segregated, just schools were de as in 1956 memo for plurality the school board admitted? The does seem Compare (opinion confident as to the answer. ante, at 720 Court) (“[T]he public Seattle schools shown have not

821 added)), law” (emphasis by were ever segregated that they “the Seattle ante, (assuming opinion) with 737 (plurality seeming but law,” by never segregated was schoоl district jure with de need segregation district a school concede that to be allowed engage order to a court not be subject measures). race-based remedial jure de be crucial cannot segregation

A court finding in the South districts all, a variable. After number as seg challenged or the Government private plaintiffs with by law their schools voluntarily regated desegregated g., Coleman, See, e. out a court as Seattle did. just order — co Public in Kentucky—The Schools Desegregation Se Decision, 25 J. Negro nd Year After the Court’s Supreme (40 dis (1956) 180 school Edue. 261 254, 256, Kentucky’s Branton, orders); tricts without court began desegregation J.52 Little Rock to Resegregation, Revisited: Desegregation (similar (1983) Arkansas); & Educ. Bullock 250, 251 Negro Districts Coercion Southern School Rodgers, Compliance: Guidelines, J. Politics School Desegregation Barresi, McDaniel (similar (1976) U. S. Georgia); (1971) (Clarke 39, 40, n. See also Letter County, Georgia). from John F. Ken General, Robert F. Kennedy, Attorney (hereinafter (Jan. 24,1963) President nedy, Kennedy Report), online at http://www.gilderlehrman.org/seareh/colleetion_pdfs/ (all Internet materials as visited June 05/63/0/05630.pdf file) case 2007, and available in Court’s (reporting Clerk to induce efforts voluntary successful the Government desegregation).

Moreover, makes Louisville’s clear a commu- history under a court order submit might nity desegregate the court race-conscious remedial dissolved plan before order, but with even intention of every following plan could lawful the dissolution. How such be plan day after before dissolution but next then become unlawful very its con- what rest On can the legal majority day? ground ante, But 720-721, 725, view? see n. 12. trary Are treat segregated courts to really merely defacto order volun those a federal by school districts avoided ante, with Brown's See at tarily complying requirements? Court), ante, 736 720 (plurality (opinion opinion). This Court has done opposite, permitting previously just kind court any race-conscious without decree. remedy McDaniel, Because the Constitution em at 41. supra, does use of race-conscious not forbid the measures phatically districts in the South that their voluntarily desegregated schools, on what claim basis does the law plurality ante, forbids Seattle to do the But see same?

The histories also indicate the the tasks complexity difficulties that local school boards face practical when seek to achieve they The greater integration. boards work communities where demographic patterns change, where must meet they traditional where learning goals, they, must attract and teachers, retain effective where should they (and will) take account of maintain their views and parents’ commitment school public education, where must they to court intervention, adapt where must vol- they encourage student and untary parent action-—where will find that they their faith, own their good and their knowledge, understand- of local are ing circumstances but often necessary always insufficient to solve the at hand. problems

These facts and circumstances help why this explain context, as means, the law often leaves legislatures, city councils, boards, school and voters with a broad range choice, thereby “different giving communities” the opportu nity different “try solutions to common problems gravitate toward those that most prove successful or seem them best to suit their individual needs.” v. Lynn Comfort Comm., School (CA1 F. 2005) 3d J.,C. (Boudin, (citing United States concurring) Lopez, 514 U. S.

(1995) J., (Kennedy, denied, cert. concurring)), 546 U. S. (2005). I to the mind, legal turn With this factual background these Constitution prohibit Does the United States question: lim- criteria race-conscious from boards using ited here? issue ways

II Legal Standard tells A line authority legal unbroken longstanding local school us permits Protection Clause Equal to achieve criteria positive boards use race-conscious com- when the does race-related even Constitution goals, what I shall its Because of importance, repeat it. pel in Swann. Chief Justice the matter Court said about in case of excep- of a unanimous a Court behalf Burger, tional wrote: importance,, with charged authorities are

“School traditionally educational tó formulate and implement broad power in that conclude, well example, and might policy a society to live in order students pluralistic prepare should a ratio each school have prescribed Negro for the district white reflecting students proportion is within an policy as a To do this as educational whole. authorities.” school broad discretionary powers S., 402 U. But the case. not in holding

The statement was a technical Swann a constitu- in basic set forth principle Court law that has found “wide accept- tional law —a principle States, 530 culture.” Dickerson United v. ance in the legal (internal omitted); (2000) marks 428, U. S. 443 quotation id., States, v. United 314, Mitchell (1999); U. S. “ in J., Vide dissenting) (citing acceptance (Scalia, to overrule” culture’” reason legal “adequate eases). prior Swann, 402 U.S. Bd. Ed. in North Carolina Thus, Swann, (1971), restated the Court, point. this citing “have wide discretion authorities,” said, the Court

“[S]chool school as a formulating policy, ... matter of educa tional school authorities policy well conclude some may that kind of racial in the balance schools is desirable quite apart from any constitutional requirements.” Then-Justice Rehn Bustop, Inc. v. Los Angeles Bd. of echoed this view in quist Ed., (1978) 1380, 1383 439 U. S. (opinion chambers), making clear he too believed that Swann’s statement that reflected I settled law: “While have the doubts that gravest state [a required by was States supreme court] United Consti tution take the action that has taken [desegregation] case, in this I little permitted have doubt that it was very that Constitution to such take action.” (Emphasis original.)

These statements nowhere freedom suggest limited to school districts where court-ordered desegregation Indeed, McDaniel, are also in measures effect. a case Swann, decided the same a day as chal- group parents student lenged race-conscious assignment plan Clarke School Board had voluntarily adopted as a County remedy without court order under federal (though agency encountered). pressure pressure Seattle also re- plan — quired elementary each maintain district 20% to 40% enrollment of African-American students, corre- See Bar- to the racial the sponding of district. composition resi v. Browne, 456, 456-459, 175 E. 649, Ga. S. 2d 650- (1970). McDaniel, This the upheld Court see plan, U. S., 41, that “a rejecting parents’ person argument included exсluded not be or may because he is a solely Negro or McDaniel, he white,” because for Brief Respondents O. T. 1970, 420, No. p.

Federal authorities claimed —as the and had NAACP did OCR schools were segre- Seattle —that Clarke County law, gated not The claim that Se- fact. just plurality’s accurate, attle was “never law” is simply segregated ante, 737, supra, plurality with 807-810. Compare no court ever found that could Seattle claim validly that of is also true that in law. But schools were segregated that we in McDaniel. Unless believe Clarke schools County for the South one standard enforces legal Constitution Seattle should North, grant this Court for and another Mc- See Georgia. Clarke County, the permission granted Daniel, invariably require will almost supra, at 41 (“[S]teps race.’ of their because ‘differently that be students assigned the status . would freeze quo other . . Any approach processes”). of all target desegregation very be re districts may held school This Court has also race-conscious deseg to undertake federal statute quired by de jure when there is no likelihood that efforts even regation School Ed. Board City can be shown. segregation of of Harris, (1979), Dist. New York 148-149 444 U. S. v. federal statute required the Court concluded faculty districts certain federal funds remedy receiving dis even in this view the racial Court’s segregation, though de schools the affected were parities purely facto not have Protection would been actionable under Equal the race-conscious Not even the dissenters thought Clause. id., a constitutional problem. remedial See program posed J.). e. Stewart, at 152 also, v. g., Crawford (opinion (1982) Ed. Board Los Angeles, 535-536 U. S. (“[S]tate to have an courts of continue California obligation school districts to use state law to order under segregated there or not whether voluntary desegregation techniques, . . . [S]chool has been a intentional finding segregation. to take retain a rea districts themselves state-law obligation remain feasible they sonably steps desegregate, free reassignment to adopt deseg busing plans effectuate School Comm. Boston added)); (emphasis regation” curiam) (dis Education, 389 U. S. 572 (1968) (per Board of to a volun of a federal a challenge want missing question criteria). statewide tary integration plan express using state Lower and federal courts had considered the matter settled uneontroversial even before this Court decided Court re- Indeed, Illinois Swann. 1968, the Supreme a race-conscious state an equal protection jected challenge de law undo seeking segregation: facto “To claim, the defendants support heavily [their] rely cases, held, on three Federal no each of which State law that a involved, local school board does not being have an affirmative to act to ra- constitutional alleviate duty imbalance cial in the did not schools that it How- cause. ever, as to constitution whether re- question de board, local State, school or a act to quires undo not here concerned. segregation simply facto issue here whether the constitution permits, rather than action aimed prohibits, State to- voluntary ward and eventually de reducing eliminating facto school segregation.

“State laws or administrative directed policies, toward the reduction and eventual elimination of segre defacto of children gation in the schools and racial imbalance, have been approved by court every State which high has considered the issue. Similarly, Federal courts which have considered the issue . . . have recognized voluntary local programs school authorities de to alleviate de signed segregation racial imbal facto ance in the schools are forbidden.” constitutionally Ed., Tometz v. Board Waukegan School Dist. 61, No. 39 Ill. 2d 593, 597-598, 237 E. N. 2d deci (citing sions from the courts high Massachu Pennsylvania, setts, New Jersey, New California, York, and Connecti cut, and from the Courts of Appeals First, Second, Fourth, omitted). Circuits; and Sixth citations e. also, g., Nitkowski, (CA2 v. 378 F. 22, 24 2d Offermann 1967); Deal v. Ed., Cincinnati Bd. (CA6 369 F. 2d 1966), cert. denied, (1967); 389 U. S. 847 School Springfield Barksdale, Comm. v. (CA1 F. 2d 261, 266 1965); Pennsyl vania Human Relations Dist., Comm’n Chester School

827 Board Booker (1967); 290, 294 157, Pa. A. 2d v. 164, 427 233 2d Ed. 170, 45 N. 212 A. Cty., Union 161, J. Plainfield, of of Dist., 59 v. Pasadena School City Jackson 1, (1965); 5 Cal. (1963). 878, 2d 881-882 881-882, 382 P. 2d illustrate I the Illinois Court quote Supreme length Swann at the time was de- assumption prevailing legal Swann was not a or unex- this sharp cided. respect, a consensus reflected from pected departure prior rulings; federal had state and lower emerged among already courts. did before Swann decided, was they

If there were doubts fed- decision. state and not survive Court’s Numerous Swann’s relied for dec- eral courts explicitly upon guidance a instance, For Texas court in 1986 ades to follow. appeals a to a voluntary Fourteenth Amendment challenge rejected integration plan explaining: of absence a court order does

“[T]he desegregate mean that a board cannot exceed minimum re- school in order quirements integration. promote discre- School are broad authorities traditionally given educational formulate and tionary powers implement decide to their stu- to ensure policy may properly dents value an of school experience.” integrated Citizens Ed. Better v. Goose Consol. Inde- Creek Dist., School 2d 352-353 719 S. W. pendent (citing Ed.), Bd. North Carolina dism’d Swann appeal of 804 484 U. S. for want federal substantial question, (1987). Ed. Los Angeles City v. Board Zaslawsky

Similarly, Ninth Dist., (1979), the School 661, 662-664 F. 2d Unified to a school federal challenge Circuit constitutional rejected use to ensure district’s transfers mandatory faculty school’s 10% of the each would fall within faculty makeup court, districtwide Like the Texas composition. Bd. North Carolina Circuit relied

Ninth upon Swann plan is reject “a race-conscious argument Ed. to judicial finding only permissible been when there has g., jure e. segregation.” also, 2d, de 663-664. F. 1002, 1004-1006 2d Cty. F. Bd., Darville v. Dade School (CA5 1974); Mandatory Against Bus State ex rel. Citizens sing 492 P. 2d Brooks, 536, 541- 121, 128-129, v. 80 Wash. 2d (1972)(en banc), grounds, other Cole Web overruled (1984)(en banc); ster, 2d 280, 103Wash. 692 P. 2d 799 School Springfield Ed., Comm. 417, 362 Mass. v. Board of (1972). 428-429, 287 438, N. E. 2d 447-448 These decisions well lower and illustrate how courts understood followed principle. legal Swann’s enunciation of relevant constitutionally accepting are not alone valid Courts as principle legal e., that enunciated —i. Swann may voluntarily government adopt measures race-conscious improve even conditions race when it is not under obligation principle constitutional to do so. That has been accepted by every government branch rooted in history Equal Protection Clause Thus, itself. Congress has enacted numerous race-conscious statutes that principle rely upon validity. g., or illustrate its e. See, 6311(b)(2) § No Child Behind Act 2001, Left U. 20 S. C. (C)(v) (2000 § IV); Supp„ seq. (authorizing ed., et 1067 aid to institutions). minority being In fact, without exhaustive, I have counted 51 federal statutes that use racial classifi- I cations. have counted well over 100 state statutes that similarly employ racial classifications. Presidential adminis- past century for supported half trations have used and e.g., various race-conscious See, measures. Exec. Order (1961) (President Reg. 10925, No. Kennedy); 26 Fed. (1965)(President Reg. Exec. 11246, Order No. 30 Fed. Johnson); Through: Sugrue, Breaking Origins The Troubled Workplace, Action Affirmative in the in Color Af- Lines: Immigration, Action, firmative Rights Options Civil (J. 2001) Skrentny America 31 (describing ed. President Nix- lobbying on’s plans, for affirmative g., action e. the Philadel- Plan); Ford phia Alamo: Gerald Action’s Affirmative White, Aug. Michigan, Time, 23, Fight More for Returns to Once support for af- p. (reporting President Ford’s action); Past, Present, Action: Sehuck, Affirmative firmative (2002) (describing Pol’y 1, 50 Rev. Future, 20 Yale L. & action). And support for affirmation President Carter’s during have districts of local school time, the same hundreds adopted assignment plans race-conscious that use student criteria. See Welch 83-91. legal ac broad

That should find such statement Swann’s upon predicated ceptance surprising. is not For Swann legal Amendment. view of Fourteenth well-established objective who of those That the basic view understands forbidding practices Equal as wrote the Protection Clause sought to exclusion. Amendment lead to racial bring society whom the full members those into American Slaughter- slavery. previously held in Nation had (1873) (“[N]o can be one fail Cases, House 16 Wall. [all purpose impressed pervading with the found one amendments] we mean the freedom ... Reconstruction race”); Virginia, 303, 306 the slave (1880) (“[The v. 100U. S. Strauder West Amendment] a series of is one of

Fourteenth namely, having purpose; provisions a common constitutional recently emancipated securing all the civil to a race ... superior enjoy”). rights the race that who

There is to that those drafted an reason believe purpose have un- Amendment with this basic in mind would legal practical the use derstood difference between namely purpose, in race-conscious criteria defiance keep criteria apart, races use of race-conscious together. namely purpose, bring the races to further Kentucky: Experiment generally Utopian in A Sears, R. See (1996) Integration Equality Berea, 1866-1904 and Social Bureau, (describing funding, through Freedman’s federal integration R. programs). See also school of race-conscious Struggle 1862-77, Segregation Fischer, The in Louisiana 830 (1974) remedies); of race-conscious 51 the use (describing

p. Public Dur Harlan, New Orleans Schools Desegregation (1962) 663,664 (same); Reconstruction, 67 Hist. Rev. Am. ing & Public Education W. Schools All: The Blacks Vaughn, (1974) (same). in the 111-116 Al South, 1865-1877, pp. forbids the former, Constitution almost it though always more lenient latter. See significantly respect Bollinger, Gratz (2003) v. S. 301 J., U. (Ginsburg, Peña, Constructors, Adarand Inc. v. dissenting); U. S. 200, 243 (1995) J., dissenting). (Stevens,

Sometimes have Members Court about disagreed degree the Clause affords to leniency programs Wygant Ed., Bd. Jackson to include. designed See v. Klutznick, Fullilove U. S. (1986); 448 U. S. 448, (1980) (Powell, J., But I can no concurring). find case which this has Court followed Justice “color Thomas’ blind” I approach. And have found no case that otherwise this constitutional repudiated asymmetry between that to exclude and that which seeks to include mem seeks which bers of races. minority

What does the First, plurality say seeks response? Swann distinguish and other similar cases on the ground judi- that those cases involved remedial plans response findings jure cial de Har- McDaniel As segregation. ris supra, show, that is untrue. See historically at 824-825. Many districts in the South rem- adopted segregation (to which Swann clearly edies without such fed- applies) any supra, eral order, see at 821. also Kennedy Report. Seattle’s circumstances are not different from meaningfully McDaniel, where in, those say, this Court race- approved conscious remedies. Louisville’s was created and ini- plan tially when adopted district compulsory court was in order place. And, event, in any the histories of Seattle and Louis- ville make that this clear distinction —between court-ordered and voluntary desegregation a line can- that sensibly —seeks be not drawn. of Swann the importance

Second, downplays the plurality relevant their describing frequently cases and related however, miss criticisms, These statements as “dicta.” understanding Swann hide its did not main point. footnote, unread in a or

law in a corner of an obscure opinion im- an its view but It forth prominently set by experts. it that Justices, knowing all nine opinion joined by portant the Nation. throughout would be followed read and re- “dicta”-based technical basic with the problem plurality’s law, case an lies in its theoretical sponse overly approach hold- distinctions between that approach emphasizes rigid nature radical that mask the ings dicta serves way mathematical Law is an exercise in decision. today’s in a rule set forth judi- And statements of a logic. legal cial into “holdings” do not divide neatly opinion always (Consider of Justice Powell’s and “dicta.” “status” legal Regents Bakke, Univ. Cal. v. separate opinion (1978).) U. enunciated S. The constitutional principle Swann, cases, reiterated in over relied subsequent upon and has been many years, provides, thought pro- widely if now vide, authoritative And legal guidance. plurality it cannot chooses reject principle, adequately justify its retreat the label “dicta” to reasoning simply by affixing Rather, with which it it must explain disagrees. why

courts and to the set Nation would abandon guidance before, forth others have many years countless guidance time, built over and which law has upon continuously embodied.

Third, a more is the claim important response plurality’s Johnson later v. California, cases —in particular Bollinger, supra, (2005), Adarand, and Grutter U. S. ante, Swann. 539 U. S. 306 720, at (2003) supplanted — supra, Adarand, John n. 741-742 227; (citing supra, supra, 326). son, Grutter, 505; The plurality Swann I de that cases such as and the others have says all “were Court de- scribed decided before this definitively termined that ‘all racial classifications ... must be analyzed ” Ante, court under strict at reviewing scrutiny.’ Adarand, 227). S., n. 515 U. This (quoting Court in Adarand added that “such classifications are constitutional tailored that if are measures further only narrowly com- they Ibid. And the interests.” re- governmental Court pelling in Grutter. S., same statement See 539 peated U. at 326.

Several these cases were more restrictive significantly Swann than to the respect leniency the Four- degree include teenth Amendment grants programs designed g., supra; Adarand, e. supra; Gratz, See, all races. people supra. Grutter, But that circumstance cannot make a legal critical difference two here for reasons. separate Adarand, Gratz, Grutter,

First, no case —not or any ever other —has held that the test of “strict means scrutiny” that all racial classifications —no matter whether seek they to include or exclude —must in be treated same. practice or say Adarand in Johnson in Grut- The Court did not or ter Swann was or its central constitu- overturning tional principle. in its

Indeed, more recent opinions, Court recognized the “fundamental of strict purpose” scrutiny review is to “take relevant differences” between dif- “fundamentally Adarand, ferent situations into . . . account.” atS., 515 U. (internal omitted). marks The Court made quotation clear that does not “[s]trict dissimilar race- scrutiny trea[t] based decisions were though they equally objectionable.” Ibid, (internal omitted). marks It added that the quotation fact that a law “treats because or person] [a of his unequally her race . .. about the ultimate says nothing any validity Id., particular Court, law.” 229-230. And the using very phrase that Justice Marshall had used to describe strict exclusionary scrutiny’s use of any racial crite- application “dispel the notion ria, strict is as sought scrutiny” condemn inclusive uses of likely criteria “race-conscious” exclusionary it is is, uses. That as it to invalidate ” “ Id., but fatal in fact.’ all ‘strict theory, circumstances Fullilove, S., J., con- (Marshall, at 237 448 U. (quoting curring judgment)). in Grutter elaborated: Court in in but fatal is not ‘strict theory,

“Strict scrutiny of race are uses all fact.’ . . . Although governmental are invalidated it---- by not all scrutiny, to strict subject race-based “Context matters when govern reviewing Clause. action under the Protection See Equal mental Lightfoot, (1960) (ad Gomillion v. 339, 343-344 364 U. S. ‘in with under broad that, pro claims monishing dealing visions of the which derive content an Constitution, by exclusion, inclusion and it is im interpretive process based on and perative generalizations, qualified by the concrete situations to them, rise must not gave be out of context in of variant control applied disregard facts’).. .. Not decision influenced race is ling every by and strict equally objectionable, scrutiny designed a framework for provide carefully examining impor tance and the of the reasons advanced sincerity the use of in that decisionmaker for race governmental atS., context.” 326-327. particular U. Grutter that the

The demonstrates Court Court’s holding for the an elite law school’s said, meant what Court upheld race-conscious admissions program. refers,

The is that the which the cases to upshot plurality all strict do not treat exclusive and though applying scrutiny, inclusive uses Rather, the same. the strict they scru- apply test in a manner tiny is “fatal fact” to racial only exclude; classifications that they test harmfully apply a manner that is not fatal in fact racial classifications that seek to include. ante, cannot fact. avoid plurality simple

741-743. reveals that would Today’s opinion plurality prior practical jurisprudence,

rewrite this Court’s least in application, transforming scrutiny” test into the “strict doing rule that is fatal in fact so, across the board. plurality parts prior company from cases, this Court’s and it legal government longstanding right takes local from purposes use criteria for inclusive race-conscious limited ways. specified, “[c]ontext

Second, as Grutter matters when re governmental viewing Equal race-based action under (citing S., Protection Clause.” 539 U. Gomillion (1960)). Lightfoot, 364 U. S. 343-344 And contexts dif dramatically fer from one the other. Governmental use race-based criteria can of, arise the context for example, expenditures forms, census research diseases, assignments police patrolling predominantly officers minority-race neighborhoods, desegregate racially efforts to segregated policies schools, that favor minorities when dis tributing goods supply, or services in short actions majority-minority peremptory districts, create electoral potential jurors strikes that race, remove on the of basis significant among others. Given the differences these con surprising required texts, it would if be the law an identi cally legal evaluating constitutionality strict for test race-based criteria as to each of them.

Here, context is one in which school seek to districts integration primary or advance to maintain racial and sec- ondary schools. It is a context, Swann makes clear, history required special where has administrative remedies. And it is plans simply a context in which the school boards’ set race-conscious limits the outer boundaries of a broad range.

This context a is not context that involves the use of race goods decide who will receive or services that are nor- mally distributed on merit and are in the basis of which short supply. stigma- It is not one in which race-conscious limits

835 against the races do not at issue pit limits tize or exclude; ten- racial exacerbate significantly each other or otherwise members upon burdens unfairly do not impose sions. They members benefits for seek instead race alone but one limits is one here all The context races alike. but them together.

seek, bring the races not keep apart, one com- is clear once differences of these importance one other where with cases circumstances pares present g., See, e. are features present. more of these or negative Brown, 347 Strauder, 303; Yick 356; Wo, 118 U. S. 100 S.U. Bakke, 438 Virginia, Loving (1967); 1 388 U. S. 483; U. S. v. Kentucky, Richmond (1986); 265; Batson v. 79 476 U. S. U. S. Reno, Shaw v. Co., v. J A. Croson (1989); S. U. supra; Grutter, Adarand, 200; U. 515 U. S. (1993); S. 630 Johnson, Gratz, 244; U. S. U. S. one finds

If context more one examines the specifically, to overcome history reflect efforts the districts’ plans broad results of experience segregation, embody student choice while consultation, seek to community expand use race- the need busing, reducing mandatory that diminish conscious criteria in limited ways highly race efforts. Com use of integration compared preceding Gittens, 1998) (CA1 Wessmann 790, 809-810 3d 160 F. pare 3d, 28-29 Comfort, 418 F. with (Boudin, J., concurring), to award do not seek (Boudin, C. J., concurring). They are merit, mag on the for they scarce basis commodity offer schools; rather, they net and in practice, by design and electives. academic substantially equivalent programs over some schools some or children Although parents prefer over the others, school has varied significantly popularity the most 2000, In for was popu Roosevelt years. example, 2001, lar first school in in Ballard was Seattle; choice high was one of least the most in West Seattle popular; one of See Re it was the more popular. popular; search, Assessment, Evaluation Student Information and

8S6 Office, Seattle Data Profile: District Schools,

Services Public (hereinafter December 2005 Data Profile: District Summary 2005), December at Summary online http://www.seattle In a word, schools.org/area/siso/disprof/2005/DP05all.pdf. the school under not involve the review do kind of plans race-based harm Court, that has other contexts, led this the use of find race-conscious criteria unconstitutional.

These and convinced related considerations one Ninth Cir cuit in the a case standard judge Seattle constitu apply “strict,” review that than and to less conclude tionality that this Court’s do precedents require contrary. (Parents VII) (2005) Involved 426 F. 3d 1162, 1193-1194 (“That (Kozinski, J., a student is denied the concurring) school of his choice be but carries no may disappointing, and at all about stigma individual’s says nothing Gratz, or That is not aptitude ability”). alone. Cf. judge supra, supra, Adarand, J., at 301 dissenting); (Ginsburg, 243 (Stevens, Carter, When dissenting); Victims Happen J., To Black, 420,433-434 (1988). Be 97 Yale L. J.

The view that a more lenient standard than “strict scru- should context tiny” would not apply present imply abandonment of efforts to determine judicial carefully need for race-conscious criteria and criteria’s tailoring need. And the light context present court requires to examine the race-conscious carefully at issue. program so, a must doing be aware of reviewing judge fiilly potential dangers pitfalls Justice Thomas Jus- ante, Kennedy mention. See 757-759 J., tice (Thomas, ante, 783-784, concurring); J., concurring (Kennedy, part concurring judgment). But unlike the such a plurality, would also be judge aware that a or school legislature administrators, ac- ultimately nonetheless electorate, countable to the could con- properly clude racial classification sometimes serves a purpose to overcome the risks important mention, enough they or a example, helping to achieve di- end isolation to body public ante, schools. at 797-798 verse Cf. student J.). (opinion judge so, the Where that is would of Kennedy, carefully program’s details to determine examine proportionate to whether criteria use race-conscious important it serves. ends scrutiny my approach alto- view, this contextual application gether requires fitting. that the law I believe a that is not “strict” the tradi- here of review standard of although require does the careful word, tional sense that supra, just Gratz, I review have described. See by dissenting); Adarand, joined (Ginsburg, J., J., Souter, joined supra, dis- at 242-249 J., (Stevens, Ginsburg, J., (Kozin- senting); supra, VII, 1193-1194 Involved Parents concurring). Apparently ski, J., Kennedy also Justice respect agrees scrutiny apply in cer- would not that strict policies. ante, board tain “race-conscious” school (“Executive generations legislative branches, which procedures, policies types now have considered these permitted employ with with candor and be them should not occur confidence a does that constitutional violation given ap- impact whenever a a decisionmaker considers the races”). proach might have on students of different precedents, light see, and other Nonetheless, of Grutter J.), adopt (opinion g., I supra, Powell, shall e. at 290 Bakke, apply I strict the first shall the version scru- alternative. embody. consequently tiny ask I shall those cases adopted Louisville whether the school boards Seattle and plans governmental “compelling these interest” serve “narrowly plans if and, so, whether the are tailored” review, plans If strict survive achieve interest. they exacting Hence, less review would survive fortiori. parts pass plans both I conclude that the before us scrutiny Consequently conclude test. I must strict plans permitted here are under the Constitution.

III Applying-the Legal Standard

A Compelling Interest justify principal in these cases to advanced interest goes by various the use of race-based criteria names. Some- achieving a court in times refers to it as an interest racial “diversity.” plurality court, here, re- Other times like “balancing.” I to it as an fers interest in racial have used general describing signify interest, it, more for terms example, preserving greater promoting as an interest in or “integration” By public racial I term, schools. mean eliminating school-by-school the school in districts’ interest increasing degree racial isolation and to which mix- racial ture characterizes each of the district’s and indi- schools each public experience. vidual student’s Regardless pos- name, however, its at interest stake sesses three First, essential elements. there a historical right and setting remedial element: an interest in the conse- quences prior segregation. conditions This refers back public highly to a segregated, time when schools were often legal policies as a result of or administrative that facilitated segregation public in schools. It is an interest in con- tinuing segregation combat remnants caused part by policies, whole or in these school-related which have only often housing patterns, affected not schools, but also employment practices, economic conditions, and social atti- maintaining tudes. It is an interest gains. hard-won preventing And gradually may it has its roots what be- resegregation come de public of America’s schools. facto supra, Appendix I, See 805-806; Part A, also infra. J.) (“This (opinion ante, at 797 of Kennedy, Nation has a obligation moral and ethical to fulfill its historic commitment creating integrated society equal opportu- an that ensures children”). nity all its

Second, there is an educational element: an interest and the adverse educational effects produced overcoming Grutter, associated with schools. Cf. highly segregated S.,U. J., concurring). Studies suggest (Ginsburg, that children from those schools and in inte- taken placed grated See, often show academic settings positive gains. g., e. Edu- Powell, Living Learning: Linking Housing cation, Pursuit of a Dream Deferred: Linking Housing (J. Powell, Education G. & V. eds. Policy 15, Kay Kearney, 2001) (hereinafter Powell); Hallinan, Effects Diversity Student Evidence, Outcomes: Science 59 Ohio St. L. J. Social (1998) (hereinafter Hallinan). 733, 741-742 e.g., Other reach D. See, studies different conclusions. ante, (1995). Armor, Forced 761-763 Justice See also J., But an the evidence concurring). supporting (Thomas, educational in es- interest is well racially schools integrated tablished and strong еnough democratically permit elected school board to determine that this inter- reasonably est is a one. compelling from

Research that black children suggests, example, increase segregated educational environments significantly their achievement levels once in a inte- are more they placed achievement grated Indeed, itself, in Louisville setting. students between black and white gap elementary seven points) smaller grew (by percentage substantially after in 1975. was See integration plan implemented 35. Powell to take another Conversely, example, evidence Norfolk, from a district in shows Virginia, resegregated led to a in achievement test scores schools decline Ibid. children of all races. edu-

One of studies of the commentator, dozens reviewing found that schooling, cational benefits desegregated results, consistent” show- studies have provided “remarkably (1) im- that: black achievement students’ educational ing in isolated schools as proved integrated compared racially (2) im- schools, black students’ educational achievement (3) the earlier black in classes, and integrated proved better isolation, their are removed from racial students 741-742. Hallinan Multiple educational outcomes. schools also integrated indicate black alumni studies closed are more move into traditionally likely occupations more in and to earn African-Americans, money those g., e. See, fields. Research on Schofield, Review School and Elementary Desegregation’s Impact Secondary Students, in Handbook Research on School Multicultural (J. 1995). Education 606-607 Banks & Banks C. eds. (1998) Bok, Bowen The Cf. W. & D. River Shape Bok). (hereinafter Bowen &

Third, there an is a democratic element: interest produc- an educational environment that reflects the ing “pluralistic Swann, which children live. our will society” S.,U. It is an our children interest learn to work helping with children of play together different racial back- It is an grounds. interest children to teaching engage kind Americans of races cooperation all that is among necessary make a land of 300 million one Nation. people g., See, e. Hallinan data Again, support insight. 745; & Quillian Black The Campbell, Beyond White: Present and Future of Multiracial 68 Am. Friendship Segregation, (hereinafter (2003) Sociological Rev. Quillian & & Dawkins Campbell); Braddock, Continuing Signifi- cance of School Desegregation: Racial Afri- Composition can American Inclusion in American 63 J. Society, Negro (1994) 394,401-403 (hereinafter Educ. Dawkins & Braddock); Wells Crain, & Theory and the Perpetuation Ef- Long-Term fects of School 64 Rev. Educ. Research Desegregation, (1994) (hereinafter Wells & Crain).

There are studies that again offer conclusions. contrary e.g., See, Schofield, School and Desegregation Intergroup Relations: A Review in Literature, 17 Review of Re- in (G. search 1991). Education ed. Grant See also ante, (THOMAS, J., 768-770 however, concurring). Again, in- racially in interest a democratic the evidence supporting strong and sufficiently established schools is firmly tegrated has itself determine, as this Court board school permit is compelling. interest often that this found, white that “black documented one study For example, less are racially prejudiced schools students desegregated con- “interracial schools,” and than those segregated in inter- to an increase leads schools tact desegregated also 745. Hallinan sociability friendship.” 155. Other & Bok Cf. Bowen 541. & Quillian Campbell who students and white both black studies have found that in desegre- to work are more likely attend schools integrated who at- than students after graduation gated companies 401- Braddock Dawkins & isolated schools. tended racially shown research has Further Crain 550. 403; Wells & communi- can adult of schools bring help desegregation Cities that housing. ties segregated together by reducing plans have successful desegregation implemented contact and interracial neighbor- witnessed increased have Daw- less segregated. hoods that tend to become racially & reinforce not only kins Braddock These effects education; and secondary prior primary gains integrated need to use race- when there is less foresee a time also they conscious criteria. Grutter Swann has treated

Moreover, from this Court diverse of racially as an virtue these civic effects important e.g., supra, Swann, Seattle School 16; See, education. Grutter, Dist. No. context 1, 458 S., U. at 472-473. inter that these found admissions, types of law school we See 539 were, “compelling.” ests constitutionally speaking, race- Law School’s S., Michigan U. at 330 (recognizing under cross-racial conscious admissions policy “promotes and enables stereotypes, to break down racial standing, helps races,” of different to better understand persons [students] increas today’s needed out that “the skills pointing ex- be developed through can ingly global marketplace only 842 widely

posure people, cultures, diverse ideas, and view- (internal points” quotation omitted; marks alteration in original)). light “compel- Grutter, of this conclusions Court’s

ling” primary nature of these interests in the context and secondary public Primary education follows here a fortiori schools are secondary where the education of this Na- begins, begins tion’s children where each of us to absorb carry days. those values we with us end our As begin said, Justice “unless Marshall our children to learn to- gether, hope people there is that our little will ever learn to together.” Bradley, live Milliken v. 717, 418 U. S. 783 (1974) (dissenting opinion). upon focusing primary Brown,

And it was after all, (1950), secondary schools, Painter, not Sweatt v. 339 U. S. 629 focusing schools, on law or McLaurin v. Oklahoma Re- State Higher (1950), gents focusing gradu- Ed., 339 U. S. 637 for deeply only ate so schools, affected but Americans Kluger, Simple History the world. R. Justice: The of Brown Struggle v. Board Education and Black America’s (1975) Equality, p. (arguing x perhaps Supreme no other directly case has minds, Court “affected more hearts, daily Americans”); many lives so J. Brown Patterson, (2001) p. (identifying Board of xxvii Education, Brown as eagerly “the judicial most awaited and dramatic decision of times”). modern VII, also Parents 3d, Involved 426 F. (Kozinski, concurring); Discriminatory at 1194 J., Strauss, In- Taming tent and Brown, 56 L. 937 U. Chi. Rev. (1989) (calling greatest Supreme “the Brown Court’s anti- decision”); discrimination Brief for United States Amicus Curiae, in Brown, Dudziak, etc.; O. Brown as T. No. (2004); Cold War A Case, Decision, J. Am. Hist. Great (New 20,1954), May p. Hindustan Times Delhi, 5; USA Takes 22,1954), Step, p. (Lagos, May Positive West African Pilot (stating acknowledgment Brown an that the “United example taking States should set an for all nations other signs traces all and life removing its national from the lead in discrimination”). Hence, arrоgance or intolerance, of racial dis- that “a finds Kennedy surprised that Justice I am not a di- compelling interest to achieve may ait trict consider popu- racially including diverse a population,” verse student Ante, lation. at 797-798. an then, includes here, compelling at issue

The interest general dis- “societal remnants, not of effort to eradicate primary opinion), (plurality but of ante, at 731 crimination,” supra, 808-809, segregation, at secondary see and create school environments an effort to 813-814; it includes children; opportunities for all provide educational that better prepared help citizens better to create effort includes an people all races understand, and to work with know, to to furthering of democratic backgrounds, thereby kind in- government If an educational our foresees. Constitution “compel- is not combines these three elements terest ling,” is? what prior majority Court acknowledges in cases this

The compelling: recognized an inter- has at least two interests past intentional discrimina- “remedying est in the effects “diversity higher in education.” tion,” and an interest convincingly plurality not Ante, at But the does 720, 722. “compelling explain why interests do not constitute those interests here differ How do the remedial interest” here. voluntary desegregation ‍​​​​‌​​​‌‌‌‌​​​​​​‌‌​​​‌‌‌‌‌‌‌​​‌​‌‌​​​‌‌​‌‌‌​‌​‍kind from those issue many years ago Attorney Kennedy de- efforts that General Supra, his President? at 821. scribed in letter to the kind How do the educational and civic interests differ in from “diversity” justify those that underlie and the racial sought found a com- Grutter, law school where this Court pelling interest? by plurality reference distinction

The tries draw a jure conceptual between de difference well-established action”) seg- segregation (“segregation by state defacto factors”). (“racial Ante, regation by other imbalance caused But that distinction what the Constitution concerns requires permits do, school boards to them what it to do. e. Green, (“School g., Compare, S.,U. at 437-438 boards . . . have operating dual an “af- state-compelled systems” firmative to take whatever duty be steps might necessary convert to a system which racial unitary discrimination e. g., Milliken, would be root branch”), with, eliminated (the supra, does not duty Constitution impose districts that have not been “shown to desegregate upon violation”). have committed constitutional any cited opinions its reliance plurality justify de jure/de distinction upon address what reme- only facto re- a dial measures school district be may constitutionally e. Pitts, Freeman quired g., See, undertake. 503 U. S. (1992). 467, 495 to what permitted, nothing As is in our protection law that a equal suggests may only State right those wrongs committed. No case of this has Court the de ever relied jure/de upon distinction order to facto limit what a school is district allowed do. voluntarily Swann, McDaniel, That is what at Craw- issue here. And Ed., Harris, North Bd. ford, Carolina Bustop made of difference between de jure one clear: as the thing significant and de be to segregation may question of a what facto district must do, distinction is to the germane of what a school question district may do.

Nor indicate, does as the any precedent plurality suggests Louisville, ante, with respect 737, at in- remedial terests vanish the after a federal court a day declares that district Of Louisville “unitary.” course, those adopted of at portions issue here court plan declared before Freeman, Louisville Moreover, Court “unitary.” this term, out that in “one of pointed vestiges sense of past do remain in our and in state decree segregation by society our race, schools. Past to the black com- wrongs wrongs name, mitted are a stubborn fact of State and in its of history persist.” stubborn facts linger And history. ante, Kennedy, S., (opinion 503 U. 495. See also J.). which rest cases, Court’s I do not understand why the wis- finding part upon “unitary” significance control, to local schools returning dom and desirability permission those officials legal should local deprive to combat once necessary persisting use means found they injustices. citation of

For his faults various part, my Justice Thomas districts can find studies the view that school supporting educational and civic interests integrating compelling (concur- ante, 761-763, their 768-769 schools. See public as course to his own He is entitled of opinion ring opinion). finds it bears men- which studies he convincing although — even the author pre- tion that of some Thomas’ Justice some evidence linking found integrated ferred has studies achievement. environments to increased academic learning J.) ante, (citing at 761-763 Compare (opinion Thomas, in the Rossell, Armor and Resegregation & Desegregation Perspectives Public the Color Line: New Schools, Beyond (A. 219, Therns- 239, on Race and in America Ethnicity J. Armor Brief David 2002); trom & S. Thernstrom eds. as Amici Af- Curiae Not All Rosen, Perhaps et with 29), al. Times, N. June Y. firmative is Created Action Equal, commenting, David Armor p. (quoting section “ sig- ‘we did not find the changing achievement gap [racial] ” “ a he ‘did find modest but nificantly’ acknowledging com- of racial for math but terms association not reading a state variation’” there’s achievement, but big position in the added)). unanimity If insist we are to upon (emphasis interest, literature finding compelling social science before Constitu- that the we never find I might only one. believe to make allows boards up tion elected school democratically of all races own as to to their minds best include people how in one America.

B Narrow Tailoring I ask next whether the before us are plans tai- “narrowly lored” to achieve these I “compelling” objectives. shall not accept the school faith, boards’ assurances on cf. Miller v. Johnson, 515 U. (1995), S. I shall subject of their “tailoring” plans review,” “rigorous judicial Grut- ter, 539 S., at U. 388 (Kennedy, J., fac- Several dissenting). tors, taken nonetheless together, lead me conclude that the boards’ use of in these race-conscious criteria plans even the passes strictest test. “tailoring” First, the race-conscious criteria at set only issue help bounds of outer broad id., Cf. ranges. 390 (expressing band[s]”). concern about “narrow fluctuation consti- They but tute one part plans primarily other, depend upon nonracial To race elements. use in this is not set way a forbidden id., “quota.” Court) at 335 (opinion (“Properly understood, a ‘quota’ is in which a cer- program tain fixed number or ‘re- proportion are opportunities served for exclusively certain minority groups’” (quoting Croson, 488 S., at 496 opinion))). U. (plurality

In fact, the feature of both defining plans greater empha- sis upon Seattle, student choice. more example, 80% cases, than of all that choice alone determines which will high schools Seattle’s graders ninth attend. After ninth grade, students can decide voluntarily transfer a pre- (without ferred district any high consideration of criteria). Choice, therefore, race-conscious “predomi- nant factor” in Grutter, these Race is plans. not. See supra, J., (Kennedy, consider- dissenting) (allowing ation of race if “not only it does become a predominant factor”).

Indeed, ranges race-conscious issue in these cases effect, often have either no because the school is particular oversubscribed because year question, or range, or the broad within makeup falls school sibling applicánt a or has is a transfer because student ranges are less respects, broad at the In these school. starting of “useful quota the kinds more like like a permissible, consistently points” found has that this Court voluntary upon transfers, and they even when set boundaries pop- community’s general they upon a even when are based Swann, g., Ed. v. Bd. e. North Carolina See, ulation. (no [the] against use” prohibition S., “absolute U. at point”); “starting Swann of mathematical as ratios (ap- Charlotte-Mecklenburg at 24-25 Ed., U. S., Bd. reflecting composition proving “the racial the use of a ratio starting point,” system” but “useful as a whole requirement”). States v. Cf. not as an “inflexible United (1969) Montgomery County Ed., Bd. 395 U. S. “provided (approving desegregation a lower court order [school] goal which that the board must move toward a under Negro faculty ‘in each school the ratio of white to members ” substantially throughout system,’ same as it is . Negro “immediately” requiring “[t]he to white ratio Negro equal teachers” in each “the ratio of school to be whole”). system to white teachers in ... broad-range voluntary

Second, limits on school choice narrowly plans are tai- burdensome, less hence more supra, Grutter, see other race-conscious lored, than g., previously approved. See, e. has this Court restrictions County Montgomery Ed., Bd. supra, Swann, 26-27; supra, plans are more nar- before us Indeed, rowly plans that admission tailored than the race-conscious approved Here, a fac- Court race becomes Grutter. only assign- tor in a non-merit-based fraction of students’ appli- large ments —not in merit-based numbers of students’ applying race-conscious Moreover, cations. the effect of potentially disadvantaged less affects students criteria here severely, severely, at issue more than the criteria rejected Disappointed from a students are not Grutter. they simply flagship graduate dif- program; attend a State’s aspi- many public schools, which in ferent one district’s Wygant, substantially equal. in ration and fact are Cf. (plurality opinion). Seattle, S., And, U. at 283 the disad- vantaged year high student one school loses at most similarly of his choice. One vain for will search Grutter persuasive tailoring as the evidence of school dis- narrow presented tricts have here. developed

Third, manner in which the school boards plans tailoring.” plan these itself reflects “narrow Each was history segregated public devised overcome of schools. plan experience Each embodies the results of local and com- munity plan product process consultation. Each is the of a sought diminishing that has choice, enhance student while mandatory busing. plan’s the need for And each use compared race-conscious elements is diminished to the use preceding integration plans. of race in widespread The school experi- boards’ consultation, their plans, mentation with 40-year numerous other indeed, the history I that Part sets plans forth, make clear that that are explicitly unlikely less race-based are to achieve the boards’ “compelling” objectives. history system of each school highly segregated by reveals schools, followed remedial plans busing, by that involved forced followed efforts at- through plans tract or retain students the use of that aban- busing replaced greater doned it with student choice. integrated Both cities once tried achieve more schools relying solely upon measures such as redrawn district bound- building aries, new construction, sehool and unrestricted vol- untary city transfers. In neither did prior attempts these prove city’s integration sufficient goals. to achieve the supra, I-B, Parts I-A and at 807-819. giving degree weight

Moreover, some to a local school knowledge, expertise, board’s particu- concerns these lar rigorous scrutiny. matters is not judicial inconsistent with simply recognizes judges It are not act well suited to Indeed, of school the context as school administrators. stressed impor has repeatedly Court desegregation, $ds boards under better tance that local acknowledging a better and have knowledge stand their own communities the educational needs of what meet will best practice (“No S., at 741-742 Milliken, single their 418 U. pupils. See local than is more rooted deeply tradition in education public has schools; long local autonomy control over the operation to the commu both maintenance been essential thought of and to for schools quality concern and nity public support also San Antonio Independ educational process”). (extol (1973) 1, 49-50 411 S. ent v. U. School Dist. Rodriguez, it offers for participa local for “the control ling opportunity how ... tion in determines process the decisionmaking free to tailor local tax will be Each locality dollars spent. Pluralism also affords some local to local needs. programs a innovation, healthy for opportunity experimentation, Arkan excellence”); educational for Epperson competition (“Judicial in the (1968) sas, 97, interposition U. 104 393 S. raises of of school the Nation operation public system pub care and restraint.... By large, problems requiring of control lic to the education our Nation committed Education, Brown authorities”); state and local v. Board of (“Full (1955) of these con U. S. implementation local of varied solution stitutional may require principles re have authorities primary School problems. these and solving assessing, for elucidating, sponsibility of action to consider whether courts will have problems; faith implementation good school authorities constitutes constitutional principles”). governing ex- with is consistent Louisville in Seattle and Experience on Civil Commission the U. elsewherе. S. perience seeking integration. school districts large studied Rights adopted of them, that most districts —92 It reported fact — more or highly two that combined desegregation policies race-conscious rezoning or strategies, example, pairing. See Welch 83-91. briefs, looked

Having of amicus public dozens reports, news stories, and the records in this many Court’s prior which cases, together span years desegregation history I Nation, school districts have across the discovered many examples that sought integration through districts explic- itly race-conscious methods, including mandatory busing. IYet, have found no model that example or would permit Court say to and to Louisville: Seattle “Here is an instance a that is plan to achieve desegregation likely your objectives and also makes less use race-conscious criteria than your And, if cannot plans.” plurality such suggest it model —and it cannot —then seeks to “narrow impose tailoring” requirement practice would never be met. Indeed, if there is no such or if such are plan, plans purely ante, it is imagined, notes, understandable as the Court why, 733-734, Seattle school officials concentrated on diminish the racial ing of their districts’ did component but plan, pursue element For eliminating entirely. the Court ante, now insist as does, at 735, that these school dis tricts to have said ought so is to for the officially either ask (if superfluous need they only make what is explicit implicit) (if or to demand the must somehow impossible they provide more is proof there no other hypothetical that could plan theirs). work as well I am not aware of case which any this Court has read the “narrow test to tailoring” impose a such requirement. People Cf. Who Bd. Care v. Rockford (CA7 1992) Ed. 205, School No. 961 F. 2d 1335, 1338 Dist. of J.) (“Would it be (Easterbrook, to adjudicate the necessary (or obvious before adopting permitting agree to parties on) ?”). a ... remedy

The to the nu- also school of plurality points districts’ use merical based the racial upon breakdown of the goals general to faults the failing districts for population, ante, at that no other set numbers will prove work. See its no to refers case support The 726-728. plurality this all, such a After find case. likely Nor is it demand. to use districts permitted Court has cases explicitly many population. the district’s ratios underlying based target upon 24-25; Bd. See, North Carolina Swann, S., e. 402 U. g., Ed., Ed., Bd. S., 46; U. Montgomery County Seattle, where the S., U. at 232. reason is obvious: 85% 41% white, overall student permitting population much more white make it at a school would enrollment single students, white would have few very that other schools likely enrollment, a whereas in with 60% white Jefferson County, one less school with white students would be likely 85% skew enrollments elsewhere.

Moreover, there is research-based evidence supporting, no that a ratio than 50% example, greater minority —which Louisville’s and as close as feasible Seattle’s starting point, risk “white point helpful starting limiting —is Orfield, See School flight.” Desegregation: Metropolitan De- Dream Impacts Pursuit of Metropolitan Society, 121, ferred: Policy Education Housing Linking Federal law also assumes that similar percentage target will avoid “minority detrimental isolation.” help group No C, Child Left Act of Title V, Behind Part 115 Stat. (2000 et §7231 ed., IV); U. S. C. CFR seq. Supp. (2006) §§280.2, 280.4 What (implementing regulations). other numbers are the to use boards aas “starting point”? Are weeks, or months they days, spend seeking independ- ently to the use of ratios that Court has validate repeat- Are numbers edly authorized in cases? draw they prior out of thin These have air? districts followed this Court’s That, too, and advice in their holdings “tailoring” plans. the lawfulness their methods. strongly supports Nor de- could have the school districts their accomplished sired aims white forced (e.g., countering avoiding busing, means. Noth- other diversity) by flight, maintaining over efforts the extensive of ing history desegregation years past gives any or districts, Court, reason possible accomplish believe another method goals. suggests these Nevertheless, Kennedy Justice that school boards

“may pursue bringing goal together of students backgrounds through diverse means, races other in- cluding strategic drawing new schools; site selection general recognition attendance zones with of the demo- graphics neighborhoods; allocating spe- for resources faculty programs; recruiting cial students and in tar- geted tracking performance, fashion; and enrollments, by and other statistics race.” Ante, at 789. “strategic But, as site selection,” Seattle has one new built (and high years specialized school in the last 44 school students). only high fact, serves six of the Seattle schools involved in this case were built the 192Q’s;the open by early generally other four were 1960’s. See N. Thompson Building Learning: Marr, & C. for Seattle Public (2002). “drawing” neigh- School 1862-2000 As to Histories, borhood zones” on racial basis, “attendance tried Louisville only busing part it it, and worked when forced was also plan. supra, “allocating See 814-816. As re- special programs,” sources for Seattle and Louisville have experimented programs both with are this; indeed, these “magnet deseg- often referred to schools,” as but the limited regation effect of these those few efforts extends at most to granted. In addi- schools which additional are resources experience tion, there no evidence from these any meaningful impact. that will Brief districts it make Respondents “recruiting p. in No. As to fac- 05-908, ulty” only but race, on the tried, basis both cities have “tracking part program. one of a enroll- broader As to tracking performance, by race,” ments, and other statistics problem; it. reveals does not cure re- concerns forth two additional Kennedy sets Justice he Louisville, to tailoring.” respect to “narrow lated (1) assign- that kindergarten officials stated first that says the race-conscious guidelines, are to subject ments not to at- (2) denied permission at here was the issue that child because those guidelines. he wanted tend the kindergarten con- this He adds cannot be true. Both, he explains, (or its plan that Louisville’s assignment fusion illustrates Court) to is insufficiently precise it explanation decisions,” “the pre- “oversight,” to “who makes respect will decision” cise circumstances in which an assignment will situated children made; be “which of two similarly Ante, 785. be at decision.” to race-based subjected given however, the child The record suggests, question he was he not the school because to assigned preferred missed deadline. See App. kindergarten application 05-915, he the aca- No. had and after p. After enrolled he to trаnsfer his demic had then begun, applied pre- year ferred school after deadline assignment kindergarten id., treat had officials to passed, possibly causing his transfer first late application an request I am not which grade, respect guidelines apply. Kennedy’s certain how the con- remainder just Justice cerns affect lawfulness the Louisville program, seem to be failures of administration. they explanation, But should be answer the Louisville able relevant ques- tions on remand. Kennedy’s second concern is related to directly

Justice merits Seattle’s Seattle’s does plan: Why plan group Asian-Americans, Native-Americans, Hispanic-Americans, all mi- and African-Americans as similar together, treating Ante, norities? 786-787. Se- majority suggests attle’s la- classification could school to be permit system beled “diverse” with Asian-American white a 50% and 50% student body, students, African-American no Hispanic ethnicity. (opin-

students, Ante, or students of other at Court). (opinion ante, ion of J.).; Kennedy, 723-724 hypothetical support The 50/50 has no in the record here; conjured imagination. appar- from the In fact, Seattle ently began minority groups to treat these different alike in response Emergency require- to the federal School Aid Act’s Siqueland, ment that do so. A. Without A Court Order: (1981)(here- Desegregation The of Schools 116-117 Seattle's Siqueland). inafter See also F. Williams, Hanawalt & R. History Desegregation The of Schools, Seattle Public (hereinafter (1981) Hanawalt); p. 1954-1981, 31 L. 95- Pub. (prescribing VI, percentage Title 92 Stat. 2252 enroll- requirements students); “minority" Siqueland ment (discussing Department Education, of Health, and Welfare’s “minority”). maintaining Moreover, definition this feder- ally system mandated of classification makes sense insofar experience as Seattle’s indicates that the relevant circum- respect groups minority stances in each these different roughly g., patterns, are similar, e. in terms of residential roughly responses. by call for similar This is confirmed degree fact that Seattle has been able to achieve a desirable diversity greater emphasis without the on race that draw- ing among minority groups require. fine lines would Does plurality’s Equal view the Protection Clause mean that give weight courts must no a such board determination? strong upon especially supporting

Does it insist in- evidence minority multiple groups clusion of in an lawful otherwise government minority-assistance program? so, If its inter- pretation among minority produce threatens divisiveness groups incompatible objectives that is with the basic Regardless, plurality Fourteenth cannot Amendment. object that the is use constitutional defect the individualized simultaneously object enough of race and that not account of individuals’ race has been taken.

Finally, recognize distinguish I the Court seeks by claiming Grutter from these arose cases that Grutter Ante, But education.’” “‘the context of higher I have explained distinction. is not a meaningful legal find could possibly I do believe the Constitution not why education for of a diverse racially “compelling” provision for a high 13-year-old but law student 23-year-old supra, And I have explained 841-843. See pupil. than tailored more narrowly how the before us are plans supra, one Grutter. I add that at 847-848. See those these school fact that cannot find a distinction relevant “individ- districts not examine the merits applications did ante, here does not The context 722-723. ually].” artistic, and merit; academic, involve admission child’s child’s athletic are not at all relevant place- “merits” hence “in- ment. These not affirmative action are plans, dividualized beside the scrutiny” simply point. (1) these their upshot plans’ specific features — (2) race,

limited and their diminishing use historically elements, reliance other non-race-conseious strong upon (3) their the in which the districts devel- and manner history (4) with comparison and modified their the oped approach, (5) the lack alterna- prior evident plans, reasonably are show “narrowly the districts’ together plans tives — In sum, tailored” the to achieve their “compelling” goals. “strict scrutiny” districts’ race-conscious plans satisfy are therefore lawful.

IV Direct Precedent more related to the

Two additional precedents directly The first con- here issue reinforce conclusion. my plans the Louisville sists the District Court determination in when that there was it its order case dissolved desegregation evidence of Board’s faith “overwhelming the good compliance the with and its desegregation Decree underlying purposes,” indeed that the board an had “treated the ideal of integrated as much more than a consider system legal obligation they — policy positive, any it a element desirable and an essential public Hampton well-rounded school education.” v. Jeffer- (WD Cty. 2000) Supp. Ky. Ed., 358, son Bd. 102 F. 2d II). (Hampton When the court made this determination in 2000, it so the desegregation did context of the Louisville plan adopted plan, that the board had in 1996. That which very plan 1996, took effect before the that in all relevant subject respects is present in effect now and is the challenge. (the of) portion one

No claims that relevant Louisville’s plan adopted was unlawful when Louisville it. To contrary, every repre- the there is reason to believe that it part implement desegregation sented effort an the 1978 plan adopted if order. But was lawful it when was first day if it was lawful the before the District Court dis- plurality suggest solved its how can the order, now day? following became Is it conceivable that unlawful implemented through Constitution, a desegrega- court permit (perhaps require) order, tion could the district day plan make use a race-conscious before the order was dissolved and then the district to use the identical forbid (“The plan day very id., analysis after? See at 380 dissolving desegregation supports decrees continued mainte- desegregated system compelling nance of aas state inter- est”). Equal Protection Clause is incoherent. And rightly unitary federal courts would to find hesitate status consequences if ruling. dramatically of were so disruptive. directly

Second, U. Seattle School Dist. No. 458 S. point. original That case involves the Seattle Plan, heavily predecessor very plan more race-conscious the now before In Dist. No. us. Seattle School this Court 1, effectively struck down a state referendum that barred im plementation plan desegregation “burden[ed] of Seattle’s Washington attempts integrate all future schools dis throughout Id., 462-463, 483. tricts the at Because State.” aof the the adoption referendum would have prohibited that involved mandatory busing, integrаtion plan burden on school because it have a special would imposed previously that integration sought integrate plans (plans it found unconstitutional. schools), Court segregated the Id., at 483-487. conclusion,

In ad- the Court did directly reaching dress the Seattle the merits of underlying constitutional cited Swann’s that the Plan. it statement But explicitly Constitution district such a a local permitted adopt plan. Powell’s also cited Justice S., opin- U. n. 15. It approving Bakke, ion in the limited use of race-conscious case. “affirmative action” criteria a university-admissions the stated that addition, n. Court S., U. id., school,” 473, could an diverse ethnically “[a]ttending in our children for “minority citizenship plural- help prepare ma- istic members society,” hopefully “teaching with children to live in and mutual jority harmony respect Ibid, (internal marks heritage.” minority quotation omitted).

It held unconstitu- is difficult to that the believe Court im- tional with the a referendum that would have interfered plan of this plementation integration plan thought was itself an unconstitutional plan. it preserve sought No. 1 Seattle School Dist. the consti- And if is upon premised Plan, of the Seattle equally premised tutionality original for the plan, present of the upon constitutionality present is the Seattle as it modified insofar Plan, only places plan less emphasis elements than its even race-conscious predecessors. contrary

It is even more difficult to plurality’s accept unconstitutional. view, was namely, plan underlying then all (even race- more so, earlier If that of Seattle’s That conscious) must been unconstitutional. also have plans strikes position implication necessary plurality’s adopt How the plurality 13th clock. could chime constitutional standard that hold would unconstitutional large integration plans adopted by numbers of race-conscious years past numerous school boards over the while remain- ing desegregation precedent? true to this Court’s

y

Consequences The Founders practical meant the Constitution as a docu- ment that genera- would transmit to future its basic values through principles tions that remained workable over time. important potential consequences Hence it is to consider the plurality’s approach, against of the as measured the Con- objectives. provides stitution's To do so further reason to plurality’s approach believe legally unsound. thing, plurality’s For one consider the effect views parties on the before us and on similar school districts throughout the Nation. Will Louisville and all similar systems school districts have return to like Louisville’s plan, initial 1956 which did not consider race at all? See supra, plan proved at 813-814. That initial 1956 ineffective. years plan, high Sixteen into the 14 of 19 middle schools totally totally remained almost or white almost black. Ibid. past plans unique. They The districts’ and current are not plans, promulgated by resemble other hundreds of local attempted variety desegrega- boards, which have experi- light tion that have methods evolved over time Rights study ence. A 1987 Civil Commission 125 school variety districts in the Nation demonstrated breadth desegregation plans: [study] desegregation “The almost 300 documents plans implemented that were between 1961 and 1985. degree heterogeneity within these districts im- They every mediately apparent. region are located in country range in from New Cruces, size Las barely attending Mexico, 15,000 with over students City, York one schools to New with more than sample includes schools. The students in million (e. Arling- g., sizes, all suburbs areas of districts urban {e.g., County, Virginia) Jefferson and rural areas ton County, Virginia). Raleigh West Louisiana, and Parish, cities countywide with central 34 districts It contains (the description, plus fit this Clark 11 Florida districts others) a of con- County, and small number Nevada and (New County, Castle Delaware districts solidated County, Kentucky). Jefferson vary compositions in their

“The districts racial also imple- plans segregation. Initial were and levels of County, Mecklenburg Mobile, mented in Alabama and dis- and in a number other Carolina, North southern segregation. of total racial At tricts in face relatively extreme, other a Clara, Santa California had prior desegregation to 1979 its even distribution designed plan. plan was for Harford When percent County, Maryland, white. was the district Compton, hand, over California, other became had percent Buffalo, York 1980s, black in the while New minority split stu- 50-50 white and a virtual between prior plan. its dents to large surprising

“It different is not a number of find desegregation sample strategies this much in a with omitted). (footnote variation.” Welch 23 techniques explicitly majority desegregation A con- of these plans, id., a race. Transfer sidered student’s 24-28. example, for in which to shift from a school allowed students they they majority to a in which were the racial minority. districts, Rich- such as be in a racial would Some permitted only California, Buffalo, York, New mond, attending “one-way” only transfers, in black students which predominantly permitted transfer black were schools Fifty-three designated Id., receiver at 25. schools. twenty-five transfers

one districts used hundred studied plans. component Id., 83-91. of their adopted At the state level, 46 States and Puerto Rico have policies encourage require local or school districts to plans. Eight enact open or interdistrict intradistrict choice approval those States condition transfers another produce school or district on will whether the transfer in- integration. require creased racial Eleven other States deny compliance local boards to that are not transfers desegregation plans. with local school board’s See Edu- Open cation StateNotes, States, Commission of the Enroll- (2007), Report ment: 50-State http://mb2.ecs.org/ online reports/Report.aspx?id=268. example, provides by

Arkansas, “[n]o stu- statute may per- dent transfer where nonresident district centage per- of enrollment race for the student’s exceeds that centage in the student’s resident Ann. district.” Ark. Code §6-18-206(f)(l), amended, no. 2007 Ark. Gen. Acts 552. provides, An respect choice, Ohio statute to student that “[procedures each school district to must establish ensure appropriate that an racial dis- balance is maintained the 3313.98(B)(2)(b)(iii) § trict schools.” Ohio Ann. Rev. Code (Lexis 2006). Supp. may object Ohio adds that a “district the adjacent enrollment of native or other student an appropriate district in order to maintain an racial balance.” 3313.98(F)(1)(a). §

A pro- Connecticut statute states that its student choice gram “preserve will seek to racial and balance.” ethnic 10-266aa(b)(2) § (2007). Conn. Gen. Stat. law Connecticut requires group popula- each school district to submit racial §10-226a. figures tion to the State Board of Education. regulation provides “[a]ny Another Connecticut school that Proportion range in which for the the Schoolfalls of a outside points points percentage percentage from less to 25 more Comparable Proportion than the for shall District, the School racially Agencies be determined to be imbalanced.” Conn. 10-226e-3(b) (1999). § Regs. A “racial determi- imbalance” requires plan nation district to submit a the correct imbalance, “mandatory racial which include may pupil plan 10-226e-5(a) (c)(4). §§ reassignment.” Constitution, the Connecticut Su- that State’s Interpreting reliance aby held inadequate Court has preme legally of the techniques local some school district solely upon Jus- (e.g., re- Kennedy reallocating recommends today tice O’Neill, 238 Conn. etc.). 678 A. 2d sources, See Sheff (1996). wrote: The State Court “Despite Supreme the se- initiatives the defendants alleviate undertaken by districts, and vere among ethnic disparities did not intend to create fact that the defendants despite continue or these maintain disparities disparities, their to burden the upon education plaintiffs infringe substantially fundamental state constitutional right Id., 2d, A. educational equal opportunity.” threaten a At a would minimum, views plurality’s and fed- of state Hundreds race-based surge litigation. use racial classifications eral statutes regulations supra, other at 828-829. educational or purposes. force of chal- such the contentious

many instances, legal or would dis- classifications, not, meritorious to these lenges earlier calm. place that school plans wide of different variety integration

districts use the Nation prob- throughout suggests in schools, including segre- lem of racial segregation defacto such plans fact many is difficult solve. The gation, criteria have that such used racial criteria suggests explicitly role to The an necessary, play. have sometimes important, school dis- would make a fact the opinion controlling (and the of such criteria often unlawful plurality’s trict’s use unlawful) always sug- make such use “colorblind” view would the laws will aside that today’s opinion setting require gests local communities. and many of several States supra, 805-806, resegre- I at out, As have pointed defacto It is reason- A, rise. Appendix is on the See gation infra. to able conclude that such can create serious resegregation supra, educational, social, See problems. civic at 839- the Given in which school boards conditions work to supra, set see policy, may at need all means they at presently their to those disposal problems. combat Yet the plurality at least would them one deprive tool some districts now vital —the limited use of consider broad race-conscious ranges. student population I use the words here “may need” The deliberately. plural- “ or at least ity, those who follow Justice ‘color- Thomas’ ” ante, blind’ at approach, see 772-773 (concurring opinion); Grutter, S., U. at 353-354 J., concurring part (Thomas, dissenting feel part), that, confident to invidi- may end all ous discrimination, one must end use of governmental race-conscious criteria including those with inclusive objec- ante, ante, tives. at 747-748 (plurality see also opinion); J., 772-773 concurring). contrast, By way (Thomas, I do not claim know to how best to harmful discrimina- stop tion; how to best create a that includes society Americans; all de how best to overcome our serious problems increasing troubled segregation, inner-city and poverty schooling, facto correlated with race. But, I do know that judge, Constitution does not authorize to dictate solutions judges to these Rather, problems. Constitution creates dem- ocratic through which political system themselves people must find answers. is for to together And them debate how best to educate Nation’s and how best to children administer to America’s schools achieve that aim. Court should them their And leave to work. it is them decide, slogan, whether the best plurality’s quote on is discrimination the basis race “way stop stop Ante, of race.” also basis 748. See discriminating VII, Parents Involved (Bea, 3d, J., dissenting) 426 F. (“The to end racial discrimination discriminat- way stop race”). That Protection Clause out- ing why Equal laws discrimination, but not invidious does forbid similarly all use criteria. race-conscious

Until this understood the as af- Constitution today, Court the their fording acting representa- elected people, through tives, freedom select the use of criteria “race-conscious” Adarand, from S., their available among U. options. (“[S]trict in this context is ‘strict scrutiny” “[not] Fullilove, but theory, S., fatal 448 U. in fact’” (quoting J., (Marshall, how- Today, concurring judgment))). (and ever, the Court restricts would elimi- some Members nate) that leeway. I fear the so consequences doing law, the schools, for the for the and for democratic process, America’s efforts one create, out its Nation. diversity,

VI Conclusions

To show that the school the here meet assignment plans requirements Constitution, I have written at excep- tional But that length. is I refer length cannot necessary. to the these history cases use of plans justify race-conscious criteria without describing history Swann’s statement I full. cannot rely that the use of upon race-conscious limits is without rather permissible showing, than that the statement a con- simply asserting, represents stitutional rooted in federal and firmly state law. principle Nor can I with the Court’s explain disagreement my holding and the without ac- plurality’s detailed opinion offering count of the arguments they propound consequences risk. they

Thus, the opinion’s But its reasoning long. conclusion is short: The plans before us satisfy requirements Protection Clause. And Equal plurality’s opinion, dissent, that “fails to result it would ground Ante, reach law.” First,

Four me basic considerations have this view. led the histories of Louisville and Seattle reveal cireum- complex and of

stances tradition conscientious efforts local long to boards resist racial in public school schools. segregation at the Brown of time to Segregation way gave expansive remedies that which included in turn rise to busing, gave fears of white and For decades flight now, resegregation. these school boards and have considered and revised adopted em- race, that less to assignment plans sought rely upon choice, student and conditions phasize greater improve all for all no color their students, of schools matter оf skin, no matter where to reside. The they plans happen under review —which are less burdensome, more egalitarian, and more effective than in prior tradi- plans that —continue their tion. And history reveals district whose goals and remedial, educational, democratic are elements inextri- with cably intertwined each the others. Part I, supra, See at 804-823.

Second, since this in Brown, decision Court’s law has and both consistently approved voluntary unequivocally race-conscious measures compulsory to combat segre Clause, schools. Equal The Protection fol gated ratified War, the Civil lowing has always distinguished practice between state action that excludes and thereby subordinates state minorities and action that seeks to to bring Grutter, From Swann all races. gether people this Court’s decisions have this emphasized distinction, recogniz the fate ing of race relations this country depends upon children, our “for our unity unless children among begin to learn there little together, that our hope people will ever learn together.” Milliken, live S.,U. (Marshall, J., See also Before Sumner, dissenting). Equality the Law: Uneonstitutionality Separate Schools Colored (Dec. Massachusetts 4, 1849), in 2 Sum Works Charles (1870) (“The ner 327, 371 law all contemplates only all shall be be but that together”). taught, shall taught II, Part at 823-837. supra, rigorous judicial subjected to plans

Third, us, before are compelling supported by state interests and review, are goals. accomplish Just as diver narrowly those tailored Grutter, compelling in sity higher deemed was education secondary public primary diversity schools—where compelling gain be, a fortiori, there more is even to —must apart Grutter, five Members state Even from interest. agree “avoiding “achiev racial isolation” and Court today compelling

[ing] population” remain student a diverse J.). (opinion Ante, at interests. 797-798 Kennedy, remedial, educational, and demo These interests combine how objectives. above, discussed For the reasons cratic disagree that Seattle I with Justice Kennedy ever, enough their to demonstrate that have not done Louisville necessary upon path set present plans to continue the are “narrowly by plans than are more tailored” These Brown. at issue criteria the law school admissions race-conscious a from follows Hence, their lawfulness Grutter. fortiori supra, at prior III-IV, Parts this Court’s decisions. See 838-858. plurality’s approach the the risks serious harm to

Fourth, the law rests either of law and for the Nation. Its view exclusionary and upon between distinction a denial the in the context of criteria of race-conscious inclusive use rigid application upon a Equal such or Clause, Protection practical significance. of “test” the distinction loses its today Consequently, slows decision down the Court’s bring ra- about work boards sets back the of local school supra, cially V, at 858-863. Part diverse schools. See approach takes consequences the Court of Indeed, plans Yesterday, were today under review are serious. Today, Yesterday, they this the citizens of lawful. are not. guidance unanimous look to this Court’s Nation could they Today, desegregation. concerning pronouncements a to them Yesterday, had available boards school cannot. full of means to combat schools. range segregated Today, do they not.

The Court’s decision undermines other basic institutional to stare as well. What has decisis? principles happened The of before their educational history plans us, impor- tance, their use of limited race —all these and more— highly make clear that here interest than compelling stronger Grutter. are here more tailored plans than narrowly the law school admissions there issue. program Hence, test, Grutter’s strict their lawfulness follows applying To hold to the is to transform that test contrary fortiori. “fatal in fact” —the of from “strict” to very opposite what Grutter said. To Mc- And Swann? what has happened Daniel? To To Harris? To School Commit- Crawford? To tee Boston? 1? Seattle School Dist. No. After dec- life, ades vibrant would all, under they plurality’s be written out of law. logic, what

And for democratic local respect decisionmaking States boards? For several decades Swann’s Court has rested its school decisions public upon basic view that the local Constitution school districts grants where the use significant degree leeway inclusive race-conscious criteria is at issue. Now localities will have with cope the difficult face problems they (including reseg- means find regation) may one deprived they necessary. And what of law’s concern and to diminish settle peacefully conflict the Nation’s Instead of accommodat- among people? different visions of our and our ing country Con- good-faith stitution, settled creates today’s holding expectations, upsets and legal threatens to considerable fur- uncertainty, produce ther litigation, race-related conflict. aggravating

And what of the moral vision that and long history Fourteenth itself Amendment embodies? The plurality in cites in Brown those who support argued against segrega- tion, and I likens that have the approach Justice Thomas ante, to taken that of 746- defenders. segregation’s to Crow Jim segregation opinion) (comparing (plurality ante, at 773-782 and Louisville’s integration polices); Seattle not did But J., policies concurring). segregation (Thomas, could and not “where could they tell schoolchildren simply ante, at 747 skin,” of their school based on the color to go rooted a caste they perpetuated system opinion); (plurality subor- and slavery of of years in the institutions legalized ante, (same), see The lesson of 746-748 dination. history, constitu- are to continue racial segregation that efforts is not inte- racial from to achieve efforts tionally indistinguishable to com- history cruel of Indeed, is a distortion gration. and Seattle Kansas, in the 1950’s to Louisville Topeka, pare Brown Linda in the modern of day equate plight —to school) the circum- (who was attend Jim ordered Crow (whose transfer to a McDonald stances Joshua request declined). is not to This home school closer was initially racial is a state-mandated there cost “a deny applying Ante, and part at 797 (Kennedy, J., concurring label.” approach, But does not that cost concurring judgment). the result- or in kind, slavery, the terrible harms degree caste racial segregation. ing system, years legal

[*] ^{[*] [*]} of Brown? For what hope Finally, promise divided. of this Nation’s the races remained history, much drank from races It of different was long ago people studied in buses, and fountains, rode separate separate Brown hour, Court’s finest schools. this separate Education helped Board history challenged awas promise Brown held out a For It it. promise. change citizens of to make in three Amendments embodied designed as a It of true equality was promise slaves. —not a matter everyday of fine words on but as paper, matter the na- about It was the Nation’s and schools. cities life It Americans. must all of a work democracy ture sought simply law, one a people, Nation, one mat- one not actually legal principle ter of we but terms how live. everyone Not welcomed this Court’s in Brown. decision years after down, Three was that decision the Gover- handed nor of Arkansas ordered state militia doors block white schoolhouse so black not children could enter. dispatched The President of the United States 101st Air- troops borne Division Rock, Little federal Arkansas, and Cooper desegregation were needed enforce decree. (1958). Today, years Aaron, U. S. 1 later, almost changed attitudes toward Nation race have dramati- cally. Many parents, white and chil- alike, black want their dren to with attend schools children of In- different races. very integration deed, the spurned districts that once long history now for it. strive The efforts reveals their complexities they and difficulties faced. And have light challenges, they of those have asked not to us take from they their hands the instruments to rid their have used segregation, schools of racial they instruments believe problems are needed to overcome the cities divided poverty. plurality race and The would decline their mod- request. est plurality wrong century

The to do so. The last half has great equality, witnessed strides toward racial but have we yet promise realized the of Brown. To invalidate plans promise review to under threaten the of Brown. plurality’s position, I promise. fear, would break that This is a decision Court will the Nation come regret. must

I dissent.

APPENDIXES

A Resegregation Trends Percentage of Black Students 90-100 Percent Non- Majority by Region, white and Nonwhite Public Schools 1950-1954 to Fall Enrollment

Source: After Brown: Clotfelter, C. Rise and Retreat (2004) (Table School 2.1). Desegregation Changes Percentage in Schools in the of White Students by Average State, 1970- Student Black Attended greater (includes enrollment with 5% or States 1980) in 1970 and black students Lee, Source: & C. Racial Transformation and G. Orfield (Jan. 2006) (Table 8), Nature Changing Segregation online at http://www.eivilrightsproject.harvard.edu/research/ deseg/Racial_Transformation.pdf.

Percentage of White Students in Schools Attended Average Student, Black 1968-2000 Frankenberg,'C.

Source: Lee, Orfield, Modifiedfrom E. & G. Society Segregated A Multiracial Los- with Are We Schools: (Jan. ing 2003), p. fig. http://www. the Dream?, 30, online at civilrightsproject.harvard.edu/research/reseg03/AreWeLosing theDream.pdf (using Dept, U. S. of Education and National Data). Center for Education Statistics Common Core Percentage Minority of Students Schools Race, 2000-2001 fig. Id.,

Source: at 28,

B Sources for Parts I-A and I-B Part I-A: Seattle Segregation,

Section 1. to 1956 1H5 ¶ 1 McVey, C. Schmid & W. Growth and Distribution Mi- nority (1964); Washington, Seattle, Races in 3, 7-9 Hanawalt Taylor, Rights 1-7; The Civil Movement in the American Negro West: Black Protest in Seattle, 1960-1970,80 J. Hist. (1995); Siqueland 1, 2-3 Desegregating 10; Pieroth, D. (Disser- Washington, p.

Public Schools, Seattle, 1954-1968, 6 1979). tation Draft Preliminary Challenges,

Section 2. 1956 to 1969 ¶ 1 Id., 32, 41; Hanawalt 4.

¶2 Id., at 11-13.

¶3 Id., at 5,13,27. Legal Challenge Section 3. The NAACP’s First and Seat- Response, tle’s 1966 to 1977 (WD Complaint

¶ 1 Bottomly, in Adams v. Civ. No. 6704 18, 1966),pp. Wash., Mar. 10-11.

¶ 2 Id., 10,14-15. Planning

¶ Dept., and Evaluation Schools, Seattle Public Adopted by Desegre- The Plan Board Seattle School gate Eighth Pupils Fifth, Sixth, Seventh, Grade High Garfield, Lincoln, and Roosevelt Districts School (Nov. 1970) (on September, pp. 1971, 12, file with the University Washington Library); generally Siqueland see 12-15; Hanawalt 18-20. Siqueland

¶ 4 5, 7, Challenge, Legal

Section Second NAACP’s If. Complaint ¶ Branch, 1 Administrative NAACP Seattle 1977) (OCR, pp. Apr. 22, School Seattle Dist. No. 2-3 874

(filed with Court as exhibit in Seattle School Dist No. 1, 458 457); Siqueland generally U. S. see 23-24.

¶2 Agreement Memorandum of between Seattle School (June King Cty., Washington, 1 District No. of OCR (filed 9,1978) with A the Court as Exh. to Kiner Affidavit in supra). Seattle School 1, Dist. No. Mandatory Busing,

Section 5. The Seattle Plan: 1978 to 1988 generally

¶ supra, 1 See 1, Seattle School Dist. No. at 461; Desegregation Planning Seattle Public Schools Office, Pro posed Desegregation Options Alternative Plans: for Elimi nating (1977) Racial Imbalance the 1979-80School Year (filed with the supra); Court Seattle School Dist. No. 1, Siqueland Hanawalt 36-38,40; 3, 184, Table 4.

¶2 Id., at 151-152; Hanawalt 37-38; Seattle School Dist. supra, 1,No. at 461; Motion to Dismiss or Affirm in Seattle School Dist. 1981, No. O. T. No. 81-9. 1, ¶ supra, 3 Seattle School 1, Dist. No. at 461; Hanawalt 40. generally ¶ 4 supra. 1, Seattle School Dist. No. Section 6. Choice, Student 1988 to 1998 ¶ Priority 1 L. Mandatory Kohn, Busing Shift: Fate of Desegregation for School in Seattle Nation 27-30,32 (Mar. 1996).

¶ Id., 2 at 32-34. Section 7. The Plan, Current 1999 the Present ¶ App. p. Respondents No. Brief 05-908, 84a; No. 05-908, at 5-7; VII, 3d, Parents Involved at F. 1169-1170. App.

¶2 in No. 05-908, 39a-42a; Dis- Data Profile: Summary Respondents trict December Brief for 2005; No. App. 05-908, 9-10,47; 05-908, 309a; No. School Board Report, Assignments School Choices 2005-2006 School 2005), Year online at (Apr. http://www.seattleschools.org/area/ final, Choices BoardApril2005 facilities-plan/Choice/0506Apps pdf. Parents Involved in Schools v. Seattle Community

¶ 3 Dist. No. School (2003); 3d 151 149 Wash. 2d P. Parents Involved (WD 2001); F. 2d 1224 Wash. Supp. VII, supra.

Part I-B: Louisville 1. the Lawsuit,

Section to 1972 1954- Before Bd. 2d Ed., 1 72 v. F. ¶ Hampton Cty. Supp. Jefferson of I). (WD 1999) 753, 756, and 2,4, nn. 5 (Hampton Ky. Section 2. 1972 Guidelines and Court-Imposed Busing,

1991 Id., 1 at 757-758, 762; Council, Area Inc. v. Newburg ¶ Board Ed. (CA6 1973), 489 F. 2d 925 Cty., of of Jefferson 918, and remanded, vacated 418 U. reinstated with modi S. curiam); (CA6 1974) fications, 510 F. 1358 2d (per Judgment and of Fact and Law Newburg Findings Conclusions of Area Council, Ed. Inc. Board Nos. Cty., of Jefferson (WD 7045 and 7291 30, 1975). Ky., July Id., 2, 3, 2 at 1. ¶ and Attachment Id., 3 at 4-16.

¶ 4 Memorandum v. Board Order in ¶ Haycraft Opinion (WD Ed. and 7291 Cty., Nos. 7045 June Ky., of Jefferson 16, 1978), 1, 4, 18. 2, pp. v. Board 5 Memorandum Haycraft Order, Opinion

¶ (WD Ed. 24, Nos. and 7291 7045 Cty., Ky, Sept. Jefferson 1985), 3; Memorandum from Donald W. p. Ingwerson, Super- intendent, to the Pub- Education, Board of Jefferson County lic District, 1, 3, 4, 1984); School pp. 5 Memorandum (Apr. from Donald W. the Board Ingwerson, Superintendent, Education, District, 4-5 Jefferson Public School pp. County (Dec. (1991 Memorandum). 19,1991)

876 Renaissance, 1991 Choice and Project 3. Student

Section to 1996 72); Exh. Brief Id., 1-4,7-11 Respond- at 1 (Stipulated

¶ 05-915, 12, n. 13. in No. p. ents 14-16. 2 1991 Memorandum

¶ Id., at 11, 14-15.

3¶ W. Daesch- from Id., 15-16; Stephen Memorandum 4 at ¶ Education, Jefferson to the Board ner, Superintendent, (1996 1996) 6, 2 District, p. (Aug. Public School County Memorandum). Modi- Renaissance Plan: Project The Current

Section k- 1996 to fied, 05-915, Id., in No. at 1-4; Brief for Respondents

¶ 13. n. I, 2; and Attachment Hampton 4-7, Memorandum ¶ ‍​​​​‌​​​‌‌‌‌​​​​​​‌‌​​​‌‌‌‌‌‌‌​​‌​‌‌​​​‌‌​‌‌‌​‌​‍at 768. supra, I, n. Hampton supra, 5-8; 3 1996 Memorandum

¶ II, 359, 363, 370, 377. 2d, 102 F. Hampton Supp. ¶ Id., at 380-381. ¶5 to the Present Lawsuit, Current

Section Schools, Public McFarland v. Cty. ¶ Jefferson (WD Cty. McFarland 2004); 2d 834 F. Ky. Supp. Jefferson curiam); Mem- 2005) (CA6 Schools, (per Public F. 3d 513 to the Daeschner, from W. Superintendent, orandum Stephen District, School Education, Public County Board of Jefferson 2001). 3-4 pp. (Apr. Seattle notes challenging standing, the racial the outcome ceased using pending tiebreaker 05-908, Brief No. litigation. Respondents the constitu

Case Details

Case Name: Parents Involved in Community Schools v. Seattle School District No. 1

Court Name: Supreme Court of the United States

Date Published: Jun 28, 2007

Citation: 551 U.S. 701

Docket Number: 05-908

Court Abbreviation: SCOTUS