See Grutter 539 U.S. at 330. Research J., No. As a result, it reverses course and reaches the wrong conclusion. Nathan Hales 20052006 enrollment was 17.3 percent Asian-American, 10.7 percent African-American, 8 percent Latino, 61.5 percent Caucasian, and 2.5 percent Native-American. Reg. See, e.g., Brief for Respondents in No. Bowen & Bok 155. 3, p.1617 (It is by such practical considerations based on experience rather than by theoretical inconsistencies that the question of equal protection is to be answered (quoting Railway Express Agency, Inc. v. New York, 336 U. S. 110 (1949))); Brief for Appellees on Reargument in Davis v. County School Board, O.T. 1953, No. See supra, at 12. Justice Kennedy sets forth two additional concerns related to narrow tailoring. In respect to Louisville, he says first that officials stated (1) that kindergarten assignments are not subject to the race-conscious guidelines, and (2) that the child at issue here was denied permission to attend the kindergarten he wanted because of those guidelines. (b)Despite the districts assertion that they employed individual racial classifications in a way necessary to achieve their stated ends, the minimal effect these classifications have on student assignments suggests that other means would be effective. While this Court has permitted the States to legislate or otherwise officially act experimentally in the social and economic fields, it has always recognized and held that this power is subject to the limitations of the Constitution, and that the tests of the Constitution must be met); Reply Brief for Appellants in Briggs v. Elliott, O.T. 1953, No. United States v. Fordice, 505 U. S. 717, 745 (1992) (Thomas, J., concurring). Id. there are two compelling interests: 1. remedying the effect of past intentional discrimination 2. interest of student body diversity in higher education 1. [Footnote 11]. In 1968 our mandatory jurisdiction was defined by the provision of the 1948 Judicial Code then codified at 28 U. S.C. 1257, see 62 Stat. Id. Bustop, addressing in the context of an emergency injunction application a busing plan imposed by the Superior Court of Los Angeles County, is similarly unavailing. 06AppsChoicesBoardApril2005final.pdf. Brief for Petitioner at 3637. At the same time, it is urged that these laws are valid as a matter of constitutionally permissible social experimentation by the States. (For ease of exposition, I shall still use Louisville to refer to what is now the combined districts.) By way of contrast, I do not claim to know how best to stop harmful discrimination; how best to create a society that includes all Americans; how best to overcome our serious problems of increasing de facto segregation, troubled inner city schooling, and poverty correlated with race. See Appendix A, infra. This type of exclusion, solely on the basis of race, is precisely the sort of government action that pits the races against one another, exacerbates racial tension, and provoke[s] resentment among those who believe that they have been wronged by the governments use of race. Adarand, supra, at 241 (opinion of Thomas, J.). 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. 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. So it was, as the dissent observes, see post, at 1314, that Louisville classified children by race in its school assignment and busing plan in the 1970s. Consequently, even though the issue was in some respect moot with respect to that petitioner, jurisdiction existed. Does that make a difference? The respondents raised this issue in their brief opposing the grant of certiorari. The plan also established Parent Assistance Centers to help parents and students navigate the school selection and assignment process. Strict scrutiny is not strict in theory, but fatal in fact. . For example, the dissent features Tometz v. Board of Ed., Waukegan City School Dist. 26401 (1948). Croson, supra, at 505; Wygant, supra, at 279, n.5 (plurality opinion). Contrary to the dissents rhetoric, neither of these school districts is threatened with resegregation, and neither is constitutionally compelled or permitted to undertake race-based remediation. The first is the compelling interest of remedying the effects of past intentional discrimination. A federal District Court dismissed the suit, upholding the tiebreaker. 2d 834, 837, 864 (WD Ky. 2004). Accepting Justice Breyers approach would do no more than move us from separate but equal to unequal but benign. Metro Broadcasting, supra, at 638 (Kennedy, J., dissenting). Executive and legislative branches, which for generations now have considered these types of policies and procedures, should be permitted to employ them with candor and with confidence that a constitutional violation does not occur whenever a decisionmaker considers the impact a given approach might have on students of different races. In Grutter, the Court gave significant deference to the University of Michigan Law Schools judgment that diversity was essential to achieving the schools educational mission. There is no guarantee, however, that students of different races in the same school will actually spend time with one another. 05908, at 7. We rely, as did the lower courts, largely on data from the 20002001 school year in evaluating the plan. 3, p.4647 (If this case were to be decided solely on the basis of precedent, this brief could have been much more limited. See Adarand Constructors, Inc., 515 U. S., at 237 ([S]trict scrutiny in this context is [not] strict in theory, but fatal in fact (quoting Fullilove, 448 U. S., at 519 (Marshall, J., concurring in judgment))). Pp. We granted certiorari, and now reverse. See ante, at 9 (Executive and legislative branches, which for generations now have considered these types of policies and procedures, should be permitted to employ them with candor and with confidence that a constitutional violation does not occur whenever a decisionmaker considers the impact a given approach might have on students of different races). On the other hand, if the Court chooses not to give deference to the School District, school boards may lose some of their decision-making discretion, which could result in diminished community support. Fifty years of experience since Brown v. Board of Education, 347 U. S. 483 (1954), should teach us that the problem before us defies so easy a solution. In Grutter, in contrast, the consideration of race was viewed as indispensable in more than tripling minority representation at the law school there at issue. Are they to spend days, weeks, or months seeking independently to validate the use of ratios that this Court has repeatedly authorized in prior cases? To begin with, Justice Breyer seeks to justify the plans at issue under our precedents recognizing the compelling interest in remedying past intentional discrimination. . [Footnote 19] See ibid. Although some parents or children prefer some schools over others, school popularity has varied significantly over the years. The specific interest found compelling in Grutter was student body diversity in the context of higher education. Ibid. The cost of busing, the harm that members of all racial communities feared that the Seattle Plan caused, the desire to attract white families back to the public schools, and the interest in providing greater school choice led the board to abandon busing and to substitute a new student assignment policy that resembles the plan now before us. Parents Involved in Community Schools v. Seattle School District No. 1986). The pluralitys position, I fear, would break that promise. And if Seattle School Dist. 2d, at 370. 252, 42 U. S.C. 2000d. [Footnote 6] Id., at 28a35a. In addition, there is no evidence from the experience of these school districts that it will make any meaningful impact. 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. See Brief for Petitioner at 21. [Footnote 10] There are good reasons not to apply a lesser standard to these cases. PICS counters that neighborhood demographics are the result of individuals voluntary choices, and that parents tend to choose schools near their home. See generally Washington v. Seattle School Dist. 1, pp. . The Sixth Circuit affirmed. The plan paired (or triaded) imbalanced black schools with imbalanced white schools. While the County had been under a desegregation order from 1975 to 2000, this order had been dissolved when a federal judge found that it had largely solved the problem of segregated schools. 1, 551 U.S. 701, 127 S.Ct. 05915, at 159, 147. With respect to avoiding racial isolation, Kennedy wrote, "A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue. But that distinction concerns what the Constitution requires school boards to do, not what it permits them to do. 733 (1998). In the present cases, by contrast, race is not considered as part of a broader effort to achieve exposure to widely diverse people, cultures, ideas, and viewpoints, ibid. 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. As well, the District points out that it is no longer using the admission system that serves as the basis of this suit, and has not for several years, further demonstrating that any future injury is far from imminent. 69. When questioned about the close timing, Gordon stated that all the District had to do was "push a button" to change things over to a plan compliant with the Court's ruling. The Court should leave them to their work. State laws or administrative policies, directed toward the reduction and eventual elimination of de facto segregation of children in the schools and racial imbalance, have been approved by every high State court which has considered the issue. Most white students live in the northern part of Seattle, most students of other racial backgrounds in the southern part. v. Barnette, 319 U. S. 624, 637 (1943) (The Fourteenth Amendment protects the citizen against the State itself and all of its creaturesBoards of Education not excepted). See Grutter, 539 U.S. at 334; Gratz, 539 U.S. at 27071. Section 5. 2002), but then withdrew its opinion, finding that the appeal turned on an unsettled question of state law which the state courts would best be able to answer in the first instance. 1, p. 7 (We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens); Tr. ospi.k12. Ibid. However, the government is entitled to consider race as one of several factors in determining school admissions and enrollment. MacFarland v. Jefferson County Public Schoolsand Parents Involved in Community Schools v. Seattle School District No. We granted certiorari. Instead, what was upheld in Grutter was consideration of a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element. 539 U. S., at 325 (quoting Bakke, supra, Id., at 38a, 103a. Compare, e.g., Green, 391 U.S., at 437438 (School boards operating state-compelled dual systems have an affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch), with, e.g., Milliken, 418 U.S., at 745 (the Constitution does not impose a duty to desegregate upon districts that have not been shown to have committed any constitutional violation). Justice Breyer nonetheless relies on the good intentions and motives of the school districts, stating that he has found no case that repudiated this constitutional asymmetry between that which seeks to exclude and that which seeks to include members of minority races. Post, at 29 (emphasis in original). No. An adoption by the court of a rule that has such connotations as authorizing discrimination of young people will surely question prior decisions holding the opposite and spur related litigation in years to come. [6] All of the dissenting Justices acknowledged that "the Constitution does not impose a duty to desegregate upon districts" if they have not practiced racial discrimination. That interest was not focused on race alone but encompassed all factors that may contribute to student body diversity, id., at 337, including, e.g., having overcome personal adversity and family hardship, id., at 338. in McFarland I, pp. The Courts decision in that case was a grievous error it took far too long to overrule. Unlike de jure segregation, there is no ultimate remedy for racial imbalance. 1, 458 U. S. 457, 472, n.15 (1982), post, at 5657, but there this Court expressly noted that it was not passing on the propriety of race-conscious student assignments in the absence of a finding of de jure segregation. To this day, misconceptions abound about whether voluntary school desegregation is constitutionally permitted in the United States. In neither city did these prior attempts prove sufficient to achieve the citys integration goals. 421, 424425 (History, too, tells us that segregation was imposed on one race by the other race; consent was not invited or required. 6, 39 Ill. 2d 593, 597598, 237 N.E. 2d 498, 501 (1968) (citations omitted) (citing decisions from the high courts of Pennsylvania, Massachusetts, New Jersey, California, New York, and Connecticut, and from the Courts of Appeals for the First, Second, Fourth, and Sixth Circuits). The concerns of Parents Involved are illustrated by Jill Kurfirst, who sought to enroll her ninth-grade son, Andy Meeks, in Ballard High Schools special Biotechnology Career Academy. 1, 458 U. S. 457, 461466 (1982). In administering public schools, it is permissible to consider the schools racial makeup and adopt general policies to encourage a diverse student body, one aspect of which is its racial composition. The Court need not resolve the parties dispute over whether racial diversity in schools has a marked impact on test scores and other objective yardsticks or achieves intangible socialization benefits because it is clear that the racial classifications at issue are not narrowly tailored to the asserted goal. It contends that these values which the Court recognized as important to the Michigan Law School are even more important at the high school level because not all students will go to college, meaning high school is the last chance for the educational system to instill in them these civic virtues. Fourteen of the districts nineteen non-vocational middle and high schools were close to totally black or totally white. And in each city, the school boards plans have evolved over time in ways that progressively diminish the plans use of explicit race-conscious criteria. For this reason, among others, I do not join Parts IIIB and IV. They asked the court to dissolve the desegregation order and to hold the use of magnet school racial guidelines unconstitutional. They are located in every region of the country and range in size from Las Cruces, New Mexico, with barely over 15,000 students attending 23 schools in 1968, to New York City, with more than one million students in 853 schools. 205, 961 F.2d 1335, 1338 (CA7 1992) (Easterbrook, J.) See, e.g., App. See Tr. This, in turn, has consequences of its own. CRYSTAL D. MEREDITH, custodial parent and next friend of JOSHUA RYAN M c DONALD, PETITIONER. Grutter, supra, at 326. The majority suggests that Seattles classification system could permit a school to be labeled diverse with a 50% Asian-American and 50% white student body, and no African-American students, Hispanic students, or students of other ethnicity. But under the Seattle plan, a school with 50 percent Asian-American students and 50 percent white students but no African-American, Native-American, or Latino students would qualify as balanced, while a school with 30 percent Asian-American, 25 percent African-American, 25 percent Latino, and 20 percent white students would not. Id., at 29 ([I]n the period 19181923, Dunbar graduates earned fifteen degrees from Ivy League colleges, and ten degrees from Amherst, Williams, and Wesleyan). The school board plans before us resemble many others adopted in the last 50 years by primary and secondary schools throughout the Nation. I have counted well over 100 state statutes that similarly employ racial classifications. Parents Involved in Community Schools v. Seattle School Dist. Courts are not alone in accepting as constitutionally valid the legal principle that Swann enunciatedi.e., that the government may voluntarily adopt race-conscious measures to improve conditions of race even when it is not under a constitutional obligation to do so. 1 Hampton I, supra, at 757758, 762; Newburg Area Council, Inc. v. Board of Ed. of Ed. App. See 539 U. S., at 320. This approach is just as wrong today as it was a half-century ago. of Oklahoma City Public Schools v. Dowell, 498 U. S. 237, 249250 (1991); Green v. School Bd. 2d 902 (1980) (Stevens, J., dissenting); brackets omitted). The plans at issue are not overly different from other plans that school districts have used with the express or implicit approval of courts. Justice Breyers dissent next relies heavily on dicta from Swann v. Charlotte-Mecklenburg Bd. In fact, it contends that the District never seriously considered other race-neutral alternatives. in No. are abandoning the policy of segregation whenever local conditions and local attitudes make it feasible), Brief for Appellees on Reargument in Davis v. County School Board, O.T. 1953, No. Though the dissent admits to discomfort in applying strict scrutiny to these plans, it claims to have nonetheless applied that exacting standard. 05915, at 97. 1, 551 U.S. 701 (U.S. 2007). An interest linked to nothing other than proportional representation of various races would support indefinite use of racial classifications, employed first to obtain the appropriate mixture of racial views and then to ensure that the [program] continues to reflect that mixture. Metro Broadcasting, supra, at 614 (OConnor, J., dissenting). Section 2. . In support of the argument that reducing racial isolation is a compelling interest, the District points to the U.S. Department of Educations Magnet School Assistance Program (MSAP). At the time, however, Young Elementary was 46.8 percent black. The original litigation eventually became a lawsuit against the Jefferson County School System, which in April 1975 absorbed Louisvilles schools and combined them with those of the surrounding suburbs. To the contrary, Jefferson County in its briefing has explained how and when it employs these classifications only in terms so broad and imprecise that they cannot withstand strict scrutiny. The plans under reviewwhich are less burdensome, more egalitarian, and more effective than prior planscontinue in that tradition. The 50/50 hypothetical has no support in the record here; it is conjured from the imagination. Memorandum of Agreement between Seattle School District No. . In design and operation, the plans are directed only to racial balance, an objective this Court has repeatedly condemned as illegitimate. If those students were considered for a whole range of their talents and school needs with race as just one consideration, Grutter would have some application. Ante, at 1718 (opinion of Kennedy, J.). Schools frequently group students by academic ability as an aid to efficient instruction, but such groupings often result in classrooms with high concentrations of one race or another. in No. Rather, it must explain to the courts and to the Nation why it would abandon guidance set forth many years before, guidance that countless others have built upon over time, and which the law has continuously embodied. 05908, p.8; see also id., at 9 ([T]here is no evidence that diversity in the K12 classroom positively affects student achievement). In Seattle, the parties settled after the school district pledged to undertake a desegregation plan. Wygant, 476 U. S., at 283. The dissent again relies upon social science research to support the proposition that state-compelled racial mixing teaches children to accept cooperation and improves racial attitudes and race relations. 1? As McDaniel and Harris show, that is historically untrue. Respondent school districts voluntarily adopted student assignment plans that rely on race to determine which schools certain children may attend. The upshot is that myriad school districts operating in myriad circumstances have devised myriad plans, often with race-conscious elements, all for the sake of eradicating earlier school segregation, bringing about integration, or preventing retrogression. Studies suggest that children taken from those schools and placed in integrated settings often show positive academic gains. See Brief for Petitioner at 45. in No. At issue were efforts for voluntary school desegregation and integration in Seattle, Washington, and Louisville, Kentucky. not in compliance with the local school boards desegre- In reality, it is far from apparent that coerced racial mixing has any educational benefits, much less that integration is necessary to black achievement. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. So long as the plan is narrowly tailored, meaning that it uses the least restrictive means to obtain the benefits that flow from diversity and implements a plan that does not result in an impermissible quota, school districts can have some say in the racial make-up of their student body. 1, supra); Hanawalt 3638, 40; Siqueland 3, 184, Table 4. (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.) 2d 290, 294 (1967); Booker v. Board of Ed. of Ed., supra, at 232. 05908, at 1920; Brief for Respondents in No. See Brief for Petitioner at 2526. I concur in the Chief Justices opinion so holding. Second, there is an educational element: an interest in overcoming the adverse educational effects produced by and associated with highly segregated schools. This refers back to a time when public schools were highly segregated, often as a result of legal or administrative policies that facilitated racial segregation in public schools. Over a period of several months in 20072008, JCPS developed a diversity plan based upon social economic and minority status (income of parents), a plan suggested by school board members Steve Imhoff and Larry Hujo in 2002. [B]enign carries with it no independent meaning, but reflects only acceptance of the current generations conclusion that a politically acceptable burden, imposed on particular citizens on the basis of race, is reasonable. Metro Broadcasting, 497 U. S., at 609610 (OConnor, J., dissenting). ; race, for some students, is determinative standing alone. In Regents of the University of California v. Bakke, 438 U.S. 265 (1978), relied on by the Court in Gratz, Justice Powell, in a plurality opinion, stated that preferring members of one group for no reasons other than race or ethnic origin is discrimination for its own sake, and therefore unlawful. In Louisville, Kentucky, the Jefferson County Public Schools voluntarily implemented a system of student assignments that set quota percentages for African-American students in each school. of Ed., 102 F.Supp. If the Primary 1 (Kindergarten) placement does not enhance racial balance, a new application must be completed for Primary 2 (Grade One)). Section 4. Neither can assign to the other all responsibility for persisting injustices. Student Choice and Project Renaissance, 1991 to 1996. 264, 399400 (1821) (Marshall, C. 05908, pp. In 2003, the Supreme Court decided two casesGrutter v. Bollinger, 539 U.S. 306 (2003) and Gratz v. Bollinger, 539 U.S. 244 (2003)both of which involved affirmative action in higher education admissions. Id. 05908, at 162a. Reply Brief for Petitioner in No. While extensive jurisprudence has developed over what is an actual case or controversy, in Lujan v. Defenders of Wildlife the Court specified three elements that must be satisfied: (1) a party must be facing an actual or imminent injury rather than a hypothetical injury (injury in fact); (2) the complained of conduct must have caused the alleged injury (causal connection); and (3) it must still be possible to provide some remedy to that injury by a favorable court decision. To the contrary, there is every reason to believe that it represented part of an effort to implement the 1978 desegregation order. Again, neither school board asserts that its race-based actions were taken to remedy prior discrimination. 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.). Brief for Petitioner at 3536. In 20002001, when the racial tiebreaker was last used, Ballards total enrollment was 17.5 percent Asian-American, 10.8 percent African-American, 10.7 percent Latino, 56.4 percent Caucasian, and 4.6 percent Native-American. Accordingly, the school boards cannot satisfy strict scrutiny. The plan provoked considerable local opposition. in No. Second, as Grutter specified, [c]ontext matters when reviewing race-based governmental action under the Equal Protection Clause. 539 U. S., at 327 (citing Gomillion v. Lightfoot, 364 U. S. 339, 343344 (1960)). us/summary. Seattle Schools Transportation. The latter approach would be informed by Grutter, though of course the criteria relevant to student placement would differ based on the age of the students, the needs of the parents, and the role of the schools. 05908, p. 511. In Brown, this Court declared that segregation was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. It is not up to the school boardsthe very government entities whose race-based practices we must strictly scrutinizeto determine what interests qualify as compelling under the Fourteenth Amendment to the United States Constitution. It then placed some grades (say, third and fourth grades) at one school building and other grades (say, fifth and sixth grades) at the other school building. The Chief Justice delivered the opinion of the Court with respect to Parts I, II, IIIA, and IIIC, concluding: 1.
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