These facts and circumstances help explain why in this context, as to means, the law often leaves legislatures, city councils, school boards, and voters with a broad range of choice, thereby giving different communities the opportunity to try different solutions to common problems and gravitate toward those that prove most successful or seem to them best to suit their individual needs. Comfort v. Lynn School Comm., 418 F.3d 1, 28 (CA1 2005) (Boudin, C.J., concurring) (citing United States v. Lopez, 514 U. S. 549, 581 (1995) (Kennedy, J., concurring)), cert. The plans here are more narrowly tailored than the law school admissions program there at issue. Justice Breyer also suggests that other means for achieving greater racial diversity in schools are necessarily unconstitutional if the racial classifications at issue in these cases cannot survive strict scrutiny. The histories also make clear the futility of looking simply to whether earlier school segregation was de jure or de facto in order to draw firm lines separating the constitutionally permissible from the constitutionally forbidden use of race-conscious criteria. From Swann to Grutter, this Courts decisions have emphasized this distinction, recognizing that the fate of race relations in this country depends upon unity among our children, for unless our children begin to learn together, there is little hope that our people will ever learn to live together. Milliken, 418 U. S., at 783 (Marshall, J., dissenting). Assessed in any objective manner, there is no comparison between the two. However, while this is an important potential consequence, it is also important to note that its relevance is dependent upon the Courts reasons for deeming racial diversity a compelling state interest, should it choose to do so. University of Texas v. Camenisch, 451 U. S. 390, 393 (1981). The dissents permissive strict scrutiny (which bears more than a passing resemblance to rational-basis review) could invite widespread governmental deployment of racial classifications. Jefferson County has articulated a similar goal, phrasing its interest in terms of educating its students in a racially integrated environment. App. Any other approach would freeze the status quo that is the very target of all desegregation processes.). The new plan permitted each student to choose the school he or she wished to attend, subject to race-based constraints. As the foregoing demonstrates, racial balancing is sometimes a constitutionally permissible remedy for the discrete legal wrong of de jure segregation, and when directed to that end, racial balancing is an exception to the general rule that government race-based decisionmaking is unconstitutional. PICS argues, however, that the Seattle School District is doing just thatemploying racial balancing for the sole purpose of achieving racial diversity in its individual schools. The District tried to give students their first choice, but when a school had more students applying for it than spots available, it used a series of tiebreakers to determine who received the spots. Supreme Court 5:4 decision suggests that the Court is divided in its interpretation of Brown and its intent in . were race-neutral) does not indicate the decline in black achieve- Indeed in Louisville itself the achievement gap between black and white elementary school students grew substantially smaller (by seven percentage points) after the integration plan was implemented in 1975. In making such a determination, we have deferred to state authorities only once, see Grutter, 539 U. S., at 328330, and that deference was prompted by factors uniquely relevant to higher education. It defines the democratic element as an interest in producing an educational environment that reflects the pluralistic society in which our children will live. Post, at 39. denied, 546 U. S. 1061 (2005). Evidence from the Segregated Schooling of African American Children, in Beyond Desegregation 209226 (M. Shujaa ed. 7231. 1 See generally Seattle School Dist. . See, e.g., Shaw v. Hunt, 517 U. S. 899, 909910 (1996) ([A]n effort to alleviate the effects of societal discrimination is not a compelling interest); Croson, supra, at 498499; Wygant, 476 U. S., at 276 (plurality opinion) (Societal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy); id., at 288 (OConnor, J., concurring in part and concurring in judgment) ([A] governmental agencys interest in remedying societal discrimination, that is, discrimination not traceable to its own actions, cannot be deemed sufficiently compelling to pass constitutional muster). Again, data support this insight. (b)The plurality opinion is too dismissive of governments legitimate interest in ensuring that all people have equal opportunity regardless of their race. Not even the dissenters thought the race-conscious remedial program posed a constitutional problem. In 1973 a federal court found that Jefferson County had maintained a segregated school system, Newburg Area Council, Inc. v. Board of Ed. in No. The plan forbade transfers, however, if the transfer would lead to a school population outside the guideline range, i.e., if it would create a school where fewer than 15% or more than 50% of the students were black. [Footnote 9] The Sixth Circuit affirmed in a per curiam opinion relying upon the reasoning of the District Court, concluding that a written opinion would serve no useful purpose. McFarland v. Jefferson Cty. Race may be one component of that diversity, but other demographic factors, plus special talents and needs, should also be considered. See, e.g., Brief for Petitioners in Bolling v. Sharpe, O.T. 1952, No. History should teach greater humility. One of those plans, which involved using race as a factor in assigning students to high schools, is the subject of this litigation. Although some parents or children prefer some schools over others, school popularity has varied significantly over the years. At the same time it relies on inapplicable desegregation cases, misstatements of admitted dicta, and other noncontrolling pronouncements, Justice Breyers dissent candidly dismisses the significance of this Courts repeated holdings that all racial classifications must be reviewed under strict scrutiny, see post, at 3133, 3536, arguing that a different standard of review should be applied because the districts use race for beneficent rather than malicious purposes, see post, at 3136. But its conclusion is short: The plans before us satisfy the requirements of the Equal Protection Clause. The districts also quote with approval an in-chambers opinion in which then-Justice Rehnquist made a suggestion to the same effect. Grutter, 539 U. S., at 348 (Scalia, J., concurring in part and dissenting in part). Yet the district also maintains that the guidelines do not apply to kindergartens, Brief for Respondents in No. The point of the narrow tailoring analysis in which the Grutter Court engaged was to ensure that the use of racial classifications was indeed part of a broader assessment of diversity, and not simply an effort to achieve racial balance, which the Court explained would be patently unconstitutional. Id., at 330. In its briefing it fails to make cleareven in the limited respects implicated by Joshuas initial assignment and transfer denialwhether in fact it relies on racial classifications in a manner narrowly tailored to the interest in question, rather than in the far-reaching, inconsistent, and adhoc manner that a less forgiving reading of the record would suggest. Code Ann. At the same time, transport from house to school involved extensive busing, with about half of all students attending a school other than the one closest to their home. 05908, pp. And if this is a frustrating duality of the Equal Protection Clause it simply reflects the duality of our history and our attempts to promote freedom in a world that sometimes seems set against it. 3, p.4647 (If this case were to be decided solely on the basis of precedent, this brief could have been much more limited. 05908. The Current Plan, 1999 to the Present. There must be at least 15 percent nonwhite students under Jefferson Countys plan; in Seattle, more than three times that figure. Louisville began its integration efforts in earnest when a federal court in 1975 entered a school desegregation order. Parents of students denied assignment to particular schools under these plans solely because of their race brought suit, contending that allocating children to different public schools on the basis of race violated the Fourteenth Amendment guarantee of equal protection. Where that is so, the judge would carefully examine the programs details to determine whether the use of race-conscious criteria is proportionate to the important ends it serves. The memorandum of agreement between Seattle and OCR, of course, contains no admission by Seattle that such segregation ever existed or was ongoing at the time of the agreement, and simply reflects a desire to avoid the incovenience [sic] and expense of a formal OCR investigation, which OCR was obligated under law to initiate upon the filing of such a complaint. As the panel majority in Parents Involved VI concluded: [T]he tiebreakers annual effect is thus merely to shuffle a few handfuls of different minority students between a few schoolsabout a dozen additional Latinos into Ballard, a dozen black students into Nathan Hale, perhaps two dozen Asians into Roosevelt, and so on. Voluntary cessation does not moot a case or controversy unless subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur, Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189 (2000) (quoting United States v. Concentrated Phosphate Export Assn., Inc., 393 U. S. 199, 203 (1968) (internal quotation marks omitted)), a heavy burden that Seattle has clearly not met. 7276 (Feb. 1989); see also Clotfelter, Interracial Contact in High School Extracurricular Activities, 34 Urban Rev., No. of Boston. Examples of these norms include defining white skin tones as nude or flesh colored, having a future time orientation, emphasizing individualism as opposed to a more collective ideology, defining one form of English as standard . Jefferson County phrases its interest as racial integration, but integration certainly does not require the sort of racial proportionality reflected in its plan. 05908, at 202a (noting that 89 nonwhite students were denied assignment to a particular school by operation of Seattles racial tiebreaker). 393, 407 (1857) ([T]hey [members of the negro African race] had no rights which the white man was bound to respect). v. Barksdale, 348 F.2d 261, 266 (CA1 1965); Pennsylvania Human Relations Commn v. Chester School Dist., 427 Pa. 157, 164, 233 A. They asked the court to dissolve the desegregation order and to hold the use of magnet school racial guidelines unconstitutional. Nowhere is this more profoundly true than in the field of education); Tr. in No. Parents Involved in Community Schools v. Seattle School District No. [4] However, the Court struck down both school districts' assignment plans, finding that the plans were not sufficiently "narrowly tailored", a legal term that suggests that the means or method being employed (in this case, a student assignment plan based on individualized racial classifications) is closely and narrowly tied to the ends (the stated goals of achieving diversity and/or avoiding racial isolation). In 1977, the NAACP filed another legal complaint, this time with the federal Department of Health, Education, and Welfares Office for Civil Rights (OCR). In doing so, the plurality parts company from this Courts prior cases, and it takes from local government the longstanding legal right to use race-conscious criteria for inclusive purposes in limited ways. of Education and National Center for Education Statistics Common Core data). 911. Educational Research 531, 550 (1994) (hereinafter Wells & Crain). School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. Doubtless, hundreds of letters like this went out from both school boards every year these race-based assignment plans were in operation. Wygant, 476 U. S., at 283. Roe v. Wade, 410 U.S. 113, 125 (1973). See id., at 380 (The very analysis for dissolving desegregation decrees supports continued maintenance of a desegregated system as a compelling state interest). Yet the school district does not explain how, in the context of its diverse student population, a blunt distinction between white and non-white furthers these goals. See also, e.g., Crawford v. Board of Ed. . v. UNIVERSITY OF TEXAS AT AUSTIN, et al., RESPONDENTS . Although there is arguably a danger of racial imbalance in schools in Seattle and Louisville, there is no danger of resegregation. This cannot be justified in the name of the Equal Protection Clause. The Seattle Plan achieved the school integration that it sought. No. Hundreds of state and federal statutes and regulations use racial classifications for educational or other purposes. Brief for Respondent at 33, 43. Nor could the school districts have accomplished their desired aims (e.g., avoiding forced busing, countering white flight, maintaining racial diversity) by other means. The Court likewise paid heed to societal practices, local expectations, and practical consequences by looking to the established usages, customs and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order. Ibid. Those lower court judges reasoned that programs like these are not aimed at oppressing blacks and do not seek to give one racial group an edge over another. Comfort, supra, at 27 (Boudin, C.J., concurring); 426 F.3d, at 1193 (Kozinski, J., concurring). Unlike the dissenters, I am unwilling to delegate my constitutional responsibilities to local school boards and allow them to experiment with race-based decisionmaking on the assumption that their intentions will forever remain as good as Justice Breyers. of Oral Arg. Joshua McDonalds requested transfer was denied because his race was listed as other rather than black, and allowing the transfer would have had an adverse effect on the racial guideline compliance of Young Elementary, the school he sought to leave. In this case, the Ninth Circuit held that the School District had a compelling state interest in achieving racial and ethnic diversity in its individual schools. To adopt the dissents deferential approach would be to abdicate our constitutional responsibilities. Supporting the school boards, one amicus has assured us that both early desegregation research and recent statistical and econometric analyses indicate that there are positive effects on minority student achievement scores arising from diverse school settings. Brief for American Educational Research Association as Amicus Curiae 10. PARENTS INVOLVED IN COMMUNITY 2d 358, 376377 (WD Ky. 2000), that decree was dissolved in 2000, id., at 360. The District further points to the line of Supreme Court cases requiring that schools desegregate even when such segregation was simply the effect of where the districts boundaries were drawn. First, Kennedy harshly faults the dissent for consciously ignoring the difference between de jure and de facto segregation. I concur in the Chief Justices opinion so holding. of Oral Arg. Simply because the school districts may seek a worthy goal does not mean they are free to discriminate on the basis of race to achieve it, or that their racial classifications should be subject to less exacting scrutiny. Each plan is the product of a process that has sought to enhance student choice, while diminishing the need for mandatory busing. (We consider only the ninth grade since only students entering that class were subject to the tiebreaker, and because the plan was not in place long enough to change the composition of an entire school.) There are obvious disincentives for students to transfer to a different school after a full quarter of their high school experience has passed, and the record sheds no light on how transfers to the oversubscribed high schools are handled. Id., at 328 (Our holding today is in keeping with our tradition of giving a degree of deference to a universitys academic decisions). Public Schools, 330 F.Supp. 733, 741742 (1998) (hereinafter Hallinan). in Briggs v. Elliott, O.T. 1953, No. Miller v. Johnson, 515 U. S. 900, 920 (1995), and I shall subject the tailoring of their plans to rigorous judicial review. Grutter, 539 U. S., at 388 (Kennedy, J., dissenting). I add that one cannot find a relevant distinction in the fact that these school districts did not examine the merits of applications individual[ly]. See ante, at 1315. At the time of Brown, v. Board of Education, 347 U. S. 483 (1954), Georgias Constitution required that [s]eparate schools shall be provided for the white and colored races. Ga. Ibid. A non-profit group, Parents Involved in Community Schools, sued the District, arguing that the racial tiebreaker violated the Equal Protection Clause of the Fourteenth Amendment as well as the Civil Rights Act of 1964 and Washington state law. Likewise, a district may consider it a compelling interest to achieve a diverse student population. See ante, at 1517, 23 (concurring opinion). See Brief for Respondent at 13. That point was challenged in Justice Breyer's dissent (joined by Stevens, Souter and Ginsberg). This Court has carved out a narrow exception to that general rule for cases in which a school district has a history of maintaining two sets of schools in a single school system deliberately operated to carry out a governmental policy to separate pupils in schools solely on the basis of race.[Footnote 4] See Swann, 402 U. S., at 56. . 05908, at 7. The plan required each middle school student to be assigned to his or her neighborhood school unless the student applied for, and was accepted by, a magnet middle school. See, e.g., Schofield, School Desegregation and Intergroup Relations, in 17 Review of Research in Education 356 (G. Grant ed. [Footnote 13]. [Footnote 6] Id., at 28a35a. The orders requirements reflected a (newly enlarged) school district student population of about 135,000, approximately 20% of whom were black. . Compare, e.g., App. of Boston, the Illinois Supreme Court had issued an unpublished opinion holding unconstitutional a similar statute aimed at eliminating racial imbalance in public schools. I believe that the law requires application here of a standard of review that is not strict in the traditional sense of that word, although it does require the careful review I have just described. The Supreme Court's 5-4 vote on the matter of desegregation and equal access to educational opportunity signals that a divide exists in the United States with respect to the underlying educational values of excellence and . Cf. 05908, at 42a. Overall these efforts brought about considerable racial integration. The student population of the school district is approximately 40% white, 60% non-white. in McFarland I, at 190 (Dec. 8, 2003) (Q. It gave fourth preference to students who received child care in the neighborhood. And during the same time, hundreds of local school districts have adopted student assignment plans that use race-conscious criteria. In the Seattle case, the school district has gone further in describing the methods and criteria used to determine assignment decisions based on individual racial classifications, but it has nevertheless failed to explain why, in a district composed of a diversity of races, with only a minority of the students classified as white, it has employed the crude racial categories of white and non-white as the basis for its assignment decisions. The OCR and the school board entered into a formal settlement agreement. No. Consequently I must conclude that the plans here are permitted under the Constitution. 1, 2, and 4 and for Respondents in No. See App. The Constitution is color-blind. The school district met its percentage goals by assigning to the new mixed school an appropriate number of black housing blocks and white housing blocks. Respondent school districts voluntarily adopted student assignment plans that rely on race to determine which schools certain children may attend. Furthermore, it is unclear whether increased interracial contact improves racial attitudes and relations. 3, p.37 (Yet a holding that school segregation by race violates the Constitution will result in upheaval in all of those places not now subject to Federal judicial scrutiny. App. Parents Involved, the Court noted that: Seattle and Louisville had not demonstrated that they seriously considered race-neutral alternatives; the individual racial classifications used had a minimal impact that cast doubt on their necessity; the districts defined Banks & C. Banks eds. When the government classifies an individual by race, it must first define what it means to be of a race. 1, No. of Ed. However, racial imbalance without intentional state action to separate the races does not amount to segregation. It simply recognizes that judges are not well suited to act as school administrators. However, Roberts considers that this interest is not compelling and that the use of race for this goal is not narrowly tailored, it is instead used for racial balancing, which is unconstitutional. Primary and secondary schools are where the education of this Nations children begins, where each of us begins to absorb those values we carry with us to the end of our days. But that cost does not approach, in degree or in kind, the terrible harms of slavery, the resulting caste system, and 80 years of legal racial segregation. Decisions to assign students to schools within each cluster are based on available space within the schools and the racial guidelines in the Districts current student assignment plan. Id., at 38. This case was originally filed in 2001 in the Western District of Washington, which ruled in favor of the school district. The principle that racial balancing is not permitted is one of substance, not semantics. Outside the school context, this Courts cases reflect the fact that racial mixing does not always lead to harmony and understanding. And it is for them to decide, to quote the pluralitys slogan, whether the best way to stop discrimination on the basis of race is to stop discriminating on the basis of race. Ante, at 4041. After discussing the democratic element, the dissent repeats its assertion that the social science evidence supporting that interest is sufficiently strong to permit a school board to determine that this interest is compelling. Post, at 40. At the state level, 46 States and Puerto Rico have adopted policies that encourage or require local school districts to enact interdistrict or intradistrict open choice plans. As McDaniel and Harris show, that is historically untrue. . See Tr. Indeed, the social scientists brief rather cautiously claims the existence of any benefit at all, describing the positive impact as modest, id., at 13, acknowledging that there appears to be little or no effect on math scores, id., at 14, and admitting that the underlying reasons for these gains in achievement are not entirely clear, id., at 15. 90a92a. Richmond v. J. See post, at 1824. They further contend that the children who have yet to reach high school age fail to fulfill the first requirement because their potential injury is not imminent; they have not even applied yet and consequently any injury to them is purely hypothetical at this point. The debate is not one we need to resolve, however, because it is clear that the racial classifications employed by the districts are not narrowly tailored to the goal of achieving the educational and social benefits asserted to flow from racial diversity. Therefore, the school districts attempts to further integrate are properly thought of as little more than attempts to achieve a particular racial balance. Individual schools will fall in and out of balance in the natural course, and the appropriate balance itself will shift with a school districts changing demographics. See also Richmond v. J. Rather, race-based government decisionmaking is categorically prohibited unless narrowly tailored to serve a compelling interest. See Brief of the States of New York, Connecticut, Illinois, Iowa, Kentucky, Maine, Maryland, Missouri, New Jersey, New Mexico, North Carolina, Oregon, Rhode Island, Utah, Vermont, Washington, Wisconsin, the District of Columbia, and the Commonwealth of Puerto Rico as Amici Curiae in Support of Respondents at 11. The Chief Justice states that the Massachusetts racial imbalance Act did not require express classifications. Finally, it argues that race-neutral techniques, such as a lottery or taking into account many forms of diversity in a holistic approach, would be as effective as the racial tiebreaker. Research J., No. Having made that determination (based on no objective measure that I can detect), a judge following the dissents approach will set the level of scrutiny to achieve the desired result. A federal District Court dismissed the suit, upholding the tiebreaker. Reg. ; see also post, at 61. Add to the inconclusive social science the fact of black achievement in racially isolated environments. Croson, 488 U. S., at 504. The Court of Appeals for the Ninth Circuit held that the District had a compelling state interest in achieving the benefits of racial diversity and that its plan was narrowly tailored. The Western District of Washington dismissed the suit, upholding the tiebreaker. See Wygant v. Jackson Board of Education, 476 U. S. 267, 274 (1986); Fullilove v. Klutznick, 448 U. S. 448, 507 (1980). See post, at 6972. No. Tex. 4. at 309a; School Board Report, School Choices and Assignments 20052006 School Year (Apr. Contrary to the dissents argument, post, at 44, the Louisville school districts interest in remedying its past de jure segregation did vanish the day the District Court found that Louisville had eliminated the vestiges of its historic de jure segregation. According to the schools most recent annual report, [a]cademic excellence is its primary goal. See African American Academy 2006 Annual Report, p.2, online at http://www.seattleschools.org/area/ ", 488 U.S., at 519, 109 S. Ct. 706, 102 L. Ed. The Seattle district, which has never operated legally segregated schools or Read More(2007) Parents Involved in Community Schools v. Seattle School . Id., at 464. 05908, at 910, 47; App. In the case Parents Involved in Community Schools v. Seattle School District No. Gratz, supra, at 301 (Ginsburg, J., dissenting); Adarand, supra, at 243 (Stevens, J., dissenting); Carter, When Victims Happen To Be Black, 97 Yale L.J. Compare ante, at 39 (history will be heard), with Brewer v. Quarterman, 550 U. S. ___, ___ (2007) (slip op., at 11) (Roberts, C.J., dissenting) (It is a familiar adage that history is written by the victors). We simply do not understand how Justice Breyer can maintain that classifying every schoolchild as black or white, and using that classification as a determinative factor in assigning children to achieve pure racial balance, can be regarded as less burdensome, and hence more narrowly tailored than the consideration of race in Grutter, post, at 47, when the Court in Grutter stated that [t]he importance of individualized consideration in the program was paramount, and consideration of race was one factor in a highly individualized, holistic review. 539 U. S., at 337. By 1991, the board had concluded that assigning elementary school students to two or more schools during their elementary school years had proved educationally unsound and, if continued, would undermine Kentuckys newly adopted Education Reform Act.
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