For the reasons explained above, the records in these cases do not demonstrate that either school boards plan is supported by an interest in remedying past discrimination. 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, at 461; Hanawalt 40. Each respondent has asserted that its assignment of individual students by race is permissible because there is no other way to avoid racial isolation in the school districts. The Fourteenth Amendment does not enact the dissents newly minted understanding of liberty. Public Schools, 330 F.Supp. 1, supra, at 461; Seattle Public Schools Desegregation Planning Office, Proposed Alternative Desegregation Plans: Options for Eliminating Racial Imbalance by the 1979-80 School Year (Sept. 1977) (filed with the Court as Exh. Due to a variety of factorssome influenced by government, some notneighborhoods in our communities do not reflect the diversity of our Nation as a whole. 05908, 426 F.3d 1162; No. But that length is necessary. Indeed, the record before us suggests the contrary. Even when it comes to race, the plans here employ only a limited notion of diversity, viewing race exclusively in white/nonwhite terms in Seattle and black/other terms in Jefferson County. 05915, at89. For instance, students who attend Franklin and Ballard will receive metro passes rather than bus service. This, in turn, has consequences of its own. 05915, at 81. We have emphasized that the harm being remedied by mandatory desegregation plans is the harm that is traceable to segregation, and that the Constitution is not violated by racial imbalance in the schools, without more. Milliken v. Bradley, 433 U. S. 267, 280, n.14 (1977). First, Kennedy harshly faults the dissent for consciously ignoring the difference between de jure and de facto segregation. 1 uses an open choice plan in which students rank their preferred schools. Adarand, supra, at 227. At the same time, all students were free subsequently to transfer from the school at which they were initially placed to a different school of their choice without regard to race. 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 record suggests, however, that the child in question was not assigned to the school he preferred because he missed the kindergarten application deadline. [Footnote 16]. And it is a context in which the school boards plans simply set race-conscious limits at the outer boundaries of a broad range. 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. App. At least one of the academic articles the dissent cites to support this proposition fails to establish a causal connection between the supposed educational gains realized by black students and racial mixing. [Footnote 2] Although presently observed racial imbalance might result from past de jure segregation, racial imbalance can also result from any number of innocent private decisions, including voluntary housing choices. Card, online at http://reportcard.ospi.k12.wa.us/summary.aspx?schoolId= In Seattle School Dist. Though the dissent admits to discomfort in applying strict scrutiny to these plans, it claims to have nonetheless applied that exacting standard. in No. Cf. [Footnote 17] Instead, the dissent suggests that some combination of the development of these plans over time, the difficulty of the endeavor, and the good faith of the districts suffices to demonstrate that these stark and controlling racial classifications are constitutional. The agreement required the board to implement what became known as the Seattle Plan.. The Seattle case, Parents Involved in Community Schools v. Seattle School District No. The subsequent statements by the unanimous Court in Swann v. Charlotte-Mecklenburg Bd. Quoting Justice Powells articulation of diversity in Regents of the University of California v. Bakke, 438 U. S. 265, 314315, the Grutter Court noted that it is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups, that can justify the use of race, 539 U. S., at 324325, but a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element, id., at 325. But it explicitly cited Swanns statement that the Constitution permitted a local district to adopt such a plan. "[25] Allowing racial balancing as a compelling end in itself would "effectively assur[e] that race will always be relevant in American life, and that the 'ultimate goal' of 'eliminating entirely from governmental decisionmaking such irrelevant factors as a human being's race' will never be achieved. It is convinced that the happiness, the progress and the welfare of these children is best promoted in segregated schools); Brief for Appellees on Reargument in Davis v. County School Board, O.T. 1953, No. 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). in No. It is the height of arrogance for Members of this Court to assert blindly that their motives are better than others. See Brief for Petitioner at 35. See id., at 380 (The very analysis for dissolving desegregation decrees supports continued maintenance of a desegregated system as a compelling state interest). 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/ School authorities concerned that their student bodies racial compositions interfere with offering an equal educational opportunity to all are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion based solely on a systematic, individual typing by race. 4 Id., at 1516; Memorandum from Stephen W. Daeschner, Superintendent, to the Board of Education, Jefferson Cty. For instance, a Texas appeals court in 1986 rejected a Fourteenth Amendment challenge to a voluntary integration plan by explaining: [T]he absence of a court order to desegregate does not mean that a school board cannot exceed minimum requirements in order to promote school integration. 05908. 2d, at 360. Cf. Id. Our cases recognized a fundamental difference between those school districts that had engaged in de jure segregation and those whose segregation was the result of other factors. 458 U. S., at 472, n.15. In dozens of subsequent cases, this Court told school districts previously segregated by law what they must do at a minimum to comply with Browns constitutional holding. App. Although apparently Joshua has now been granted a transfer to Bloom, the school to which transfer was denied under the racial guidelines, Tr. Similarly, of the 1,461 black students enrolled in the 12 senior high schools in Seattle, 1,151 (or 78.8%) attended 3 senior high schools, and 900 (61.6%) attended a single school, Garfield. See, e.g., Swann v. Charlotte-Mecklenburg Bd. See, e.g., Brief for Respondents in No. in No. Accordingly, the plans are unconstitutional. Courts even began to tamp down on local, voluntary busing programs. Brief in Opposition in No. If the need for the racial classifications embraced by the school districts is unclear, even on the districts own terms, the costs are undeniable. The student population of the school district is approximately 40% white, 60% non-white. And I have explained how the plans before us are more narrowly tailored than those in Grutter. Preliminary Challenges, 1956 to 1969. Code 2.60.020 (2006), certified the state-law question to the Washington Supreme Court, 294 F.3d 1085, 1087 (2002) (Parents Involved IV). This is especially true when we seek assurance that opportunity is not denied on account of race. PICS also argues that the lower courts neglected to apply the correct strict scrutiny standard and instead gave undo deference to the school board. Under that approach, the school districts have not carried their burden of showing that the ends they seek justify the particular extreme means they have chosenclassifying individual students on the basis of their race and discriminating among them on that basis. See, e.g., Powell, Living and Learning: Linking Housing and Education, in Pursuit of a Dream Deferred: Linking Housing and Education Policy 15, 35 (J. Powell, G. Kearney, & V. Kay eds. 16, 18. See post, at 5, 89, 18, 23. We have found many. The group also asserted an interest in not being forced to compete in a race-based system that might prejudice its members children, an actionable form of injury under the Equal Protection Clause, see, e.g., Adarand Constructors, Inc. v. Peńa, 515 U. S. 200, 211. In challenging standing, Seattle also notes that it has ceased using the racial tiebreaker pending the outcome of this litigation. Parents Involved in Community Schools, a non-profit organization, argues that the Districts policy amounts to unconstitutional racial balancing under the Supreme Courts 2003 decisions in Grutter v. Bollinger, 539 U.S. 306 (2003) and Gratz v. Bollinger, 539 U.S. 244 (2003). Despite the dissents repeated intimation of a remedial purpose, neither of the programs in question qualifies as a permissible race-based remedial measure. . Finally, the outcome of this case will give some perspective into how the new composition of the Supreme Court views the still controversial issue of affirmative action. No. Opinions differed. The Current Lawsuit, 2003 to the Present. 2, pp. Seattles racial tiebreaker results, in the end, only in shifting a small number of students between schools. Both parents appealed the Districts placement but were unable to have their children reassigned. No. Five Supreme Court justices rejected voluntary desegregation plans in Seattle and . Id., at 43. Adarand, 515 U. S., at 227; Grutter, 539 U. S., at 326; Johnson v. California, 543 U. S. 499, 505 (2005) (We have insisted on strict scrutiny in every context, even for so-called benign racial classifications). What other numbers are the boards to use as a starting point? Louisville asserts several similar forward-looking interests, Brief for Respondents in No. 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. In this Courts finest hour, Brown v. Board of Education challenged this history and helped to change it. The fact that many such plans have used explicitly racial criteria suggests that such criteria have an important, sometimes necessary, role to play. For his part, Justice Thomas faults my citation of various studies supporting the view that school districts can find compelling educational and civic interests in integrating their public schools. Justice Breyers dissent next looks for authority to a footnote in Washington v. Seattle School Dist. (In my opinion, it is not necessary to find that the Board of Education has been guilty of racial discrimination in the past to support the conclusion that it has a legitimate interest in employing more black teachers in the future). 05908, p. 42. The practice can lead to corrosive discourse, where race serves not as an element of our diverse heritage but instead as a bargaining chip in the political process. Brief for Petitioner at 3943. PICS cites previous Court cases holding that when a means used does not actually address all the harm it purports to address, it cannot be a compelling interest. Justice Breyers reliance on McDaniel v. Barresi, 402 U. S. 39 (1971), post, at 2324, 2930, highlights how far removed the discussion in the dissent is from the question actually presented in these cases. Compare Eisenberg, 197 F.3d, at 133, with Comfort, 418 F.3d, at 13. To School Committee of Boston? School districts can seek to reach Browns objective of equal educational opportunity. 67759, p.11 (It is implicit in Brown v. Board of Education of Topeka, 347 U. S. 483, that color or race is a constitutionally impermissible standard for the assignment of school children to public schools. The Constitution is color-blind. Brief for Respondent at 24, 30, 33. Reply Brief for Petitioner in No. Reg. These changes conformed with the concurring opinion of Justice Kennedy. 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. Even today, two of our wisest federal judges have rejected such a wooden reading of the Equal Protection Clause in the context of school integration. To remedy the wrong, school districts that had been segregated by law had no choice, whether under court supervision or pursuant to voluntary desegregation efforts, but to resort to extraordinary measures including individual student and teacher assignment to schools based on race. Are they to draw numbers out of thin air? This cannot be justified in the name of the Equal Protection Clause. 05908, at1617. Applying a test from Grutter, the Circuit Court also ruled that the tiebreaker plan was narrowly tailored, because 1) the District did not employ quotas, 2) the District had considered race-neutral alternatives, 3) the plan caused no undue harm to races, and 4) the plan had an ending point. But what was constitutionally required of the district prior to 2000 was the elimination of the vestiges of prior segregationnot racial proportionality in its own right. Segregation at the time of Brown gave way to expansive remedies that included busing, which in turn gave rise to fears of white flight and resegregation. Regents of Univ. Today, they are not. A mixture? Racial imbalance is not segregation. And as I explained above, the school districts have no remedial interest in pursuing these programs. Can the government force black families to relocate to white neighborhoods in the name if bringing the races together? If the plans survive this strict review, they would survive less exacting review a fortiori. 294 F.3d 1084 (9th Cir. At the same time, these compelling interests, in my view, do help inform the present inquiry. And, as an aspiration, Justice Harlans axiom must command our assent. If so, its interpretation threatens to produce divisiveness among minority groups that is incompatible with the basic objectives of the Fourteenth Amendment. Its view of the law rests either upon a denial of the distinction between exclusionary and inclusive use of race-conscious criteria in the context of the Equal Protection Clause, or upon such a rigid application of its test that the distinction loses practical significance. This argument that different rules should govern racial classifications designed to include rather than exclude is not new; it has been repeatedly pressed in the past, see, e.g., Gratz, 539 U. S., at 282 (Breyer, J., concurring in judgment); id., at 301 (Ginsburg, J., dissenting); Adarand, supra, at 243 (Stevens, J., dissenting); Wygant, 476 U. S., at 316317 (Stevens, J., dissenting), and has been repeatedly rejected. 14, 1. the Chief Justice, joined by Justice Scalia, Justice Thomas, and Justice Alito, concluded for additional reasons in Parts IIIB and IV that the plans at issue are unconstitutional under this Courts precedents. And what has happened to Swann? 05915, at 4, these ambiguities become all the more problematic in light of the contradictions and confusions that result. I next ask whether the plans before us are narrowly tailored to achieve these compelling objectives.
