In 1972, civil rights groups and parents, claiming unconstitutional segregation, sued the Louisville Board of Education in federal court. 05915, p. 48, but we are nonetheless obliged to ensure that it exists, Arbaugh v. Y & H Corp., 546 U. S. 500, 514 (2006). To hold to the contrary is to transform that test from strict to fatal in factthe very opposite of what Grutter said. In over one-third of the assignments affected by the racial tiebreaker, then, the use of race in the end made no difference, and the district could identify only 52 students who were ultimately affected adversely by the racial tiebreaker in that it resulted in assignment to a school they had not listed as a preference and to which they would not otherwise have been assigned. Id., at 21. In sum, the districts race-conscious plans satisfy strict scrutiny and are therefore lawful. And it is for them to debate how best to educate the Nations children and how best to administer Americas schools to achieve that aim. 5 Memorandum Opinion and Order, Haycraft v. Board of Ed. Light, New Evidence on School Desegregation v (1987) (hereinafter Welch) (prepared for the Commission on Civil Rights) (reviewing a sample of 125 school districts, constituting 20% of national public school enrollment, that had experimented with nearly 300 different plans over 18 years). 4143 (Mar. The fact that Seattle has ceased using the racial tiebreaker pending the outcome here is not dispositive, since the district vigorously defends its programs constitutionality, and nowhere suggests that it will not resume using race to assign students if it prevails. In Grutter, the consideration of race was viewed as indispensable in more than tripling minority representation at the law schoolfrom 4 to 14.5 percent. Compare ante, at 12 (opinion of the Court) ([T]he Seattle public schools have never shown that they were ever segregated by law (emphasis added)), with ante at 2930 (plurality opinion) (assuming the Seattle school district was never segregated by law, but seeming to concede that a school district with de jure segregation need not be subject to a court order to be allowed to engage in race-based remedial measures). On the other hand race-conscious measures that do not rely on differential treatment based on individual classifications present these problems to a lesser degree. And it was Brown, after all, focusing upon primary and secondary schools, not Sweatt v. Painter, 339 U. S. 629 (1950), focusing on law schools, or McLaurin v. Oklahoma State Regents for Higher Ed., 339 U. S. 637 (1950), focusing on graduate schools, that affected so deeply not only Americans but the world. of Cal. Yet, like so many other legal categories that can overlap in some instances, the constitutional distinction between de jure and de facto segregation has been thought to be an important one. Bd. of Boston v. Board of Ed., 352 Mass. Yet, I have found no example or model that would permit this Court to say to Seattle and to Louisville: Here is an instance of a desegregation plan that is likely to achieve your objectives and also makes less use of race-conscious criteria than your plans. And, if the plurality cannot suggest such a modeland it cannotthen it seeks to impose a narrow tailoring requirement that in practice would never be met. not in compliance with the local school boards desegre- In 2007, the United States Supreme Court struck down two local school board initiatives meant to reverse extreme racial segregation in public schools. I cannot rely upon Swanns statement that the use of race-conscious limits is permissible without showing, rather than simply asserting, that the statement represents a constitutional principle firmly rooted in federal and state law. See n.16, infra. Id., at 3839, 82. See, e.g., Brief for Appellants in Brown v. Board of Education, O.T. 1953, Nos. KORRELL ON BEHALF OF PETITIONER MR. KORRELL: Mr. Chief Justice, and may it please the Court. At the elementary school level, based on his or her address, each student is designated a resides school to which students within a specific geographic area are assigned; elementary resides schools are grouped into clusters in order to facilitate integration. App. The long history of their efforts reveals the complexities and difficulties they have faced); post, at 21 (emphasizing the importance of local circumstances and encouraging different localities 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 (citations and internal quotation marks omitted)); post, at 48 (emphasizing the school districts 40-year history during which both school districts have tried numerous approaches to achieve more integrated schools); post, at 63 ([T]he histories of Louisville and Seattle reveal complex circumstances and a long tradition of conscientious efforts by local school boards). I shall consequently ask whether the school boards in Seattle and Louisville adopted these plans to serve a compelling governmental interest and, if so, whether the plans are narrowly tailored to achieve that interest. The present cases are before us, however, because the Seattle school district was never segregated by law, and the Jefferson County district has been found to be unitary, having eliminated the vestiges of its prior dual status. 2d 304, and yet in Seattle several alternative assignment plansmany of which would not have used express racial classificationswere rejected with little or no consideration. It is the height of arrogance for Members of this Court to assert blindly that their motives are better than others. He contended that whatever trends toward classroom racial imbalance have obtained, they were not the result of state-sanctioned segregation as in the pre-Brown era. It is not simply one factor weighed with others in reaching a decision, as in Grutter; it is the factor. Adarand, supra, at 227. We granted certiorari. 61, 39 Ill. 2d 593, 596598, 237 N.E. 2d 498, 500502 (1968), an Illinois decision, as evidence that state and federal courts had considered the matter settled and uncontroversial. Post, at 25. And the design of particular plans has been dictated by both the law and the specific needs of the district. Ibid. Supra, at 1920. 05908, at 103a (describing application of racial tiebreaker based on current white percentage of 41 percent and current minority percentage of 59 percent (emphasis added)). [Footnote 28]. 2 App. 4, p.86 ([Y]ou cannot talk about this problem just in a vacuum in the manner of a law school discussion), with post, at 57 (The Founders meant the Constitution as a practical document). Justice Breyers position comes down to a familiar claim: The end justifies the means. 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. Voluntary School Diversity Efforts A decade ago, on June 28, 2007, the United States Supreme Court issued its ruling in Parents Involved in Community Schools v. Seattle School District ("PICS"), the only A racial imbalance determination requires the district to submit a plan to correct the racial imbalance, which plan may include mandatory pupil reassignment. 10226e5(a) and (c)(4). So, I doubt not, it will continue to be for all time . In cases where an opinion or parts of an opinion do not reach a majority, the narrower opinion represents the holding, so Justice Kennedy's opinion represents parts of the holding of the case. 1 that the racial classifications used by school districts in Seattle and Louisville to create diverse schools were unconstitutional. The histories that follow set forth these basic facts. As a consequence, this separate opinion is necessary to set forth my conclusions in the two cases before the Court. There is every reason to think that, if the dissents rationale were accepted, Congress, assuming an otherwise proper exercise of its spending authority or commerce power, could mandate either the Seattle or the Jefferson County plans nationwide. In the Seattle case, the District Court granted the school district summary judgment, finding, inter alia, that its plan survived strict scrutiny on the federal constitutional claim because it was narrowly tailored to serve a compelling government interest. We take the Grutter Court at its word. 05908, at 303a. in No. And even if the determination is difficult, it is one the dissent acknowledges must be made to determine what remedies school districts are required to adopt. Importantly, it considered that issue only under rational-basis review, 39 Ill. 2d, at 600, 237 N.E. 2d, at 502 (The test of any legislative classification essentially is one of reasonableness), which even the dissent grudgingly recognizes is an improper standard for evaluating express racial classifications. The dissent does not and cannot answer these questions because the contours of the distinction it propounds rest entirely in the eye of the beholder. A. Croson Co., 488 U. S. 469 (1989); Shaw v. Reno, 509 U. S. 630 (1993); Adarand Constructors, Inc. v. Peńa, 515 U. S. 200 (1995); Grutter, supra; Gratz v. Bollinger, 539 U. S. 244 (2003); Johnson v. California, 543 U. S. 499 (2005). Louisville asserts several similar forward-looking interests, Brief for Respondents in No. See Grutter, 539 U.S. at 334. Justice Thomas goes on to call out the dissent for adopting segregationist reasoning advanced in Brown, particularly its insistence that the Court should defer to local school board knowledge, expertise, and judgment. In keeping with his view that strict scrutiny should not apply, Justice Breyer repeatedly urges deference to local school boards on these issues. Fifty-three of the 125 studied districts used transfers as a component of their plans. Thus, the race-based student-assignment plan at issue here, which was instituted the year after the dissolution of the desegregation decree, was not even arguably required by the Constitution. See App. The dissent repeatedly claims that the school districts are threatened with resegregation and that they will succumb to that threat if these plans are declared unconstitutional. See, e.g., id., at 111. 05908, at19. 1117, 2528. Is each to be the subject of litigation in the District Courts?); Brief for Kansas on Reargument in Brown v. Board of Education, O.T. 1953, No. The suggestion that our decision today is somehow inconsistent with our disposition of that appeal is belied by the fact that neither the lower courts, the respondent school districts, nor any of their 51 amici saw fit even to cite the case. Even so the race factor was found to be invalid. Another 1,200 black students and 400 white students participated in the previously adopted voluntary transfer program. The history of each school system reveals highly segregated schools, followed by remedial plans that involved forced busing, followed by efforts to attract or retain students through the use of plans that abandoned busing and replaced it with greater student choice. See F. Welch & A. The dissent half-heartedly attacks the historical underpinnings of the color-blind Constitution. These arguments are inimical to the Constitution and to this Courts precedents. Id. 05908, at 286a. 1, 551 U.S. 701 (U.S. 2007). 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. Therefore, it took the unusual step of certifying a question for the Washington Supreme Court to answer before it decided the appeal. as Amici Curiae, with Rosen, Perhaps Not All Affirmative Action is Created Equal, N.Y. No. No. The Seattle School district and Jefferson County district have applications that require a parent to state what the race of his or her child is. 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. By 1972, however, the Louisville School District remained highly segregated. Compare Brief for Kansas on Reargument in Brown v. Board of Education, O.T. 1953, No. No. And appropriately so. Moreover, the school districts did not consider other options that might have been more narrowly tailored. This argument is unavailing; the groups members have children in all levels of the districts schools, and the complaint sought declaratory and injunctive relief on behalf of members whose elementary and middle school children may be denied admission to the high schools of their choice in the future. 05908, p. 511. But the solutions mandated by these school districts must themselves be lawful. The plans in both Louisville and Seattle grow out of these earlier remedial efforts. Todays opinion reveals that the plurality would rewrite this Courts prior jurisprudence, at least in practical application, transforming the strict scrutiny test into a rule that is fatal in fact across the board. [31], The opinion came less than two months before the start of the regular school year in King County and less than three weeks before the start of year-round school in the District. No. In this plurality opinion, Roberts wrote that the schools at issue contend that a racially diverse environment is beneficial for education and they submit this as the reason why they consider race alone in their school assignments. App. Preliminary Challenges, 1956 to 1969. Therefore, if governments may constitutionally use racial balancing to achieve these aspirational ends in schools, they may use racial balancing to achieve similar goals at every levelfrom state-sponsored 4H clubs, see Bazemore v. Friday, 478 U. S. 385, 388390 (1986) (Brennan, J., concurring), to the state civil service. See, e.g., Brief for Appellees on Reargument in Briggs v. Elliott, O.T. 1953, No. See ante, at 1213. It would stop this march of progress, this onward sweep). 439 U. S., at 1383. And if Seattle School Dist. In fact, without being exhaustive, I have counted 51 federal statutes that use racial classifications. tui salary cabin crew. The Chief Justice rejects the conclusion that the racial classifications at issue here should be viewed differently than others, because they do not impose burdens on one race alone and do not stigmatize or exclude. And second, Kennedy faults the dissent for ignoring the "presumptive invalidity of a State's use of racial classifications to differentiate its treatment of individuals.". See also, e.g., Offerman v. Nitkowski, 378 F.2d 22, 24 (CA2 1967); Deal v. Cincinnati Bd. People Who Care v. Rockford Bd. 7. Roberts cites to: "Id., at 330, 123 S. Ct. 2325, 156 L. Ed. In Seattle, then, the benefits of racial diversity require enrollment of at least 31 percent white students; in Jefferson County, at least 50 percent. Without any detailed discussion of the operation of the plans, the students who are affected, or the districts failure to consider race-neutral alternatives, the dissent concludes that the districts have shown that these racial classifications are necessary to achieve the districts stated goals. Cf. Justice Kennedys second concern is directly related to the merits of Seattles plan: Why does Seattles plan group Asian-Americans, Hispanic-Americans, Native-Americans, and African-Americans together, treating all as similar minorities? Stripped of the baseless and novel interests the dissent asserts on their behalf, the school boards cannot plausibly maintain that their plans further a compelling interest. App. 1991). Id., at 38a, 103a. Chief Justice John Roberts wrote the opinion of the court as to Parts I, II, III-A and III-C. Part I recounted the background of the plans of the two school boards. In Seattle, the parties settled after the school district pledged to undertake a desegregation plan. Given that state law had previously required the school board to maintain a dual school system, the county was obligated to take measures to remedy its prior de jure segregation. 26401 (1948). 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,'", First, "remedying the effects of past intentional discrimination.". See also Bakke, 438 U.S., at 312, 313, 98 S. Ct. 2733, 57 L. E. 2d 750 (opinion of Powell, J.).". Such measures may include strategic site selection of new schools; drawing attendance zones with general recognition of neighborhood demographics; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race. See also Bakke, supra, at 312, 313 (opinion of Powell, J.). 05908, at 1920; Brief for Respondents in No. See Church of the Lukumi v. Hialeah, 508 U.S. 520, 54647 (1993); Florida Star v. B.J.F. Jefferson County does not challenge our jurisdiction, Tr. See, e.g., Schofield, Review of Research on School Desegregations Impact on Elementary and Secondary School Students, in Handbook of Research on Multicultural Education 597, 606607 (J. Public School Dist., 34 (Apr. See, e.g., Brief for Appellees on Reargument in Davis v. County School Board, O.T. 1953, No. There is no guarantee, however, that students of different races in the same school will actually spend time with one another. there are two compelling interests: 1. remedying the effect of past intentional discrimination 2. interest of student body diversity in higher education 1. 252, 42 U. S.C. 2000d. Compare Wessmann v. Gittens, 160 F.3d 790, 809810 (CA1 1998) (Boudin, J., concurring), with Comfort, 418 F. 3d, at 2829 (Boudin, C.J., concurring). On what legal ground can the majority rest its contrary view? If one examines the context more specifically, one finds that the districts plans reflect efforts to overcome a history of segregation, embody the results of broad experience and community consultation, seek to expand student choice while reducing the need for mandatory busing, and use race-conscious criteria in highly limited ways that diminish the use of race compared to preceding integration efforts. See Freeman, 503 U. S., at 496; Jenkins, 515 U. S., at 118 (Thomas, J., concurring). of Oral Arg. Id., at 39a. 05915, at 7 (quoting McFarland I, supra, at 842). We relied on the fact that Congress has continuously since 1862 segregated its schools in the District of Columbia); Brief for Appellees in Briggs v. Elliott, O.T. 1952, No. Kennedy, J., filed an opinion concurring in part and concurring in the judgment. And my view was the rallying cry for the lawyers who litigated Brown. [Footnote 26], What was wrong in 1954 cannot be right today. 2728; 476 U. S., at 315 (Stevens, J., dissenting)). Get free summaries of new US Supreme Court opinions delivered to your inbox! 2, p.7 (Local self-government in local affairs is essential to the peace and happiness of each locality and to the strength and stability of our whole federal system. In 1958, black parents whose children attended Harrison Elementary School (with a black student population of over 75%) wrote the Seattle board, complaining that the boundaries for the Harrison Elementary School were not set in accordance with the long-established standards of the School District but were arbitrarily set with an end to excluding colored children from McGilvra School, which is adjacent to the Harrison school district.. The Current Plan: Project Renaissance Modified, 1996 to 2003. of New Kent Cty., 391 U. S. 430, 441442 (1968). In his concurrence, Kennedy differed with the plurality because, he found, the goal of obtaining a diverse student body is a compelling state interest. The new plan permitted each student to choose the school he or she wished to attend, subject to race-based constraints. Another Connecticut regulation provides that [a]ny school in which the Proportion for the School falls outside of a range from 25 percentage points less to 25 percentage points more than the Comparable Proportion for the School District, shall be determined to be racially imbalanced. Conn. [citation needed]. . This Courts opinion in McDaniel v. Barresi, 402 U. S. 39 (1971), fits comfortably within this framework. See Brief for Petitioner at 21. See, e.g., Henderson, Greenberg, Schneider, Uribe, & Verdugo, High Quality Schooling for African American Students, in Beyond Desegregation 166 (M. Shujaa ed. For example, one study documented that black and white students in desegregated schools are less racially prejudiced than those in segregated schools, and that interracial contact in desegregated schools leads to an increase in interracial sociability and friendship. Hallinan 745. (citing Brief for Respondents, O.T. 1984, No. We raise this fact not to argue that the dismissal should be afforded any different stare decisis effect, but rather simply to suggest that perhapsfor the reasons noted abovethe dismissal does not mean what Justice Stevens believes it does. 254, 256, 261 (1956) (40 of Kentuckys 180 school districts began desegre- Because this Court has authorized and required race-based remedial measures to address de jure segregation, it is important to define segregation clearly and to distinguish it from racial imbalance. (explaining why dicta is not binding). And [p]referring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. Bakke, 438 U. S., at 307 (opinion of Powell, J.). 05908, p. 42. in No. To School Committee of Boston? Nor can I explain my disagreement with the Courts holding and the pluralitys opinion, without offering a detailed account of the arguments they propound and the consequences they risk. in 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). Post, at 22. While diversity may lend to a robust education, parents and students have their own opinions on what factors promote the best education possible. Yet the plurality would deprive them of at least one tool that some districts now consider vitalthe limited use of broad race-conscious student population ranges. The measures required by those cases often included race-conscious practices, such as mandatory busing and race-based restrictions on voluntary transfers. ", 488 U.S., at 519, 109 S. Ct. 706, 102 L. Ed. The issue here is whether the constitution permits, rather than prohibits, voluntary State action aimed toward reducing and eventually eliminating de facto school segregation. That is, it is not in all circumstances strict in theory, but fatal in fact. Id., at 237 (quoting Fullilove v. Klutznick, 448 U. S., at 519 (Marshall, J., concurring in judgment)). The districts have also failed to show they considered methods other than explicit racial classifications to achieve their stated goals. It also argues that the plan is not narrowly tailored because it does not seek integration at all racially imbalanced schools, only certain ones. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once againeven for very different reasons. The fact that the controlling opinion would make a school districts use of such criteria often unlawful (and the pluralitys colorblind view would make such use always unlawful) suggests that todays opinion will require setting aside the laws of several States and many local communities. Nothing in the opinion approves use of racial classifications as the means to address the imbalance. Because racial imbalance is not inevitably linked to unconstitutional segregation, it is not unconstitutional in and of itself. At the same time, these compelling interests, in my view, do help inform the present inquiry. Pp. 67759, at 9 (Unlike the Massachusetts Court, the Illinois Supreme Court has recently held its law to eliminate racial imbalance unconstitutional on the ground that it violated the Equal Protection Clause of the Fourteenth Amendment); ibid., n.1. In the year 20052006, by which time the racial tiebreaker had not been used for several years, Franklins overall minority enrollment had risen to 90%. Level=School&orgLinkId=1061&yrs=; http://reportcard. Upon realizing that the litigation would not be resolved in time for assignment decisions for the 20022003 school year, the Ninth Circuit withdrew its opinion, 294 F.3d 1084 (2002) (Parents Involved III), vacated the injunction, and, pursuant to Wash. Rev. Id. Student Choice and Project Renaissance, 1991 to 1996. Second, broad-range limits on voluntary school choice plans are less burdensome, and hence more narrowly tailored, see Grutter, supra, at 341, than other race-conscious restrictions this Court has previously approved. of Ed., 439 U. S. 1380, 1383 (1978) (opinion in chambers), making clear that he too believed that Swanns statement reflected settled law: While I have the gravest doubts that [a state supreme court] was required by the United States Constitution to take the [desegregation] action that it has taken in this case, I have very little doubt that it was permitted by that Constitution to take such action. (Emphasis in original.). In 1956, a memo for the Seattle School Board reported that school segregation reflected not only segregated housing patterns but also school board policies that permitted white students to transfer out of black schools while restricting the transfer of black students into white schools. App. And what of the long history and moral vision that the Fourteenth Amendment itself embodies? in No. If the plans survive this strict review, they would survive less exacting review a fortiori. Assertions of general societal discrimination are plainly insufficient. One schoolGarfieldis more or less in the center of Seattle. 1 is premised upon the constitutionality of the original Seattle Plan, it is equally premised upon the constitutionality of the present plan, for the present plan is the Seattle Plan, modified only insofar as it places even less emphasis on race-conscious elements than its predecessors. To do so provides further reason to believe that the pluralitys approach is legally unsound. 420, p.25. Parents Involved VII, 426 F.3d, at 1192. Brief for Respondents in No. The Courts decision in that case was a grievous error it took far too long to overrule. Id. These generic lessons in socialization and good citizenship are too sweeping to qualify as compelling interests. The Seattle School District allowed students to apply to any high school in the District. Id., at 43. 1 McFarland v. Jefferson Cty. By this term, I mean the school districts interest in eliminating school-by-school racial isolation and increasing the degree to which racial mixture characterizes each of the districts schools and each individual students public school experience. Again, this approach to racial classifications is fundamentally at odds with our precedent, which makes clear that the Equal Protection Clause protect[s] persons, not groups, Adarand, 515 U. S., at 227 (emphasis in original). 529, 532 (SC 1951))); Brief for Appellees in Briggs v. Elliott, O.T. 1952, No. See Hampton v. Jefferson Cty. 1806, 20 U. S.C. 7231 et seq. But the examples the dissent mentionsfor example, a provision of the No Child Left Behind Act that requires States to set measurable objectives to track the achievement of students from major racial and ethnic groups, 20 U. S.C. 6311(b)(2)(C)(v)have nothing to do with the pertinent issues in these cases.
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