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. Grutter at 33637; Gratz, 539 U.S. at 27071. 2002). Although remedying the effects of past intentional discrimination is a compelling interest under the strict scrutiny test, see Freeman v. Pitts, 503 U. S. 467, 494, that interest is not involved here because the Seattle schools were never segregated by law nor subject to court-ordered desegregation, and the desegregation decree to which the Jefferson County schools were previously subject has been dissolved. The new policy added an explicitly racial criterion: If a place exists in a school, then, irrespective of other transfer criteria, a white student may transfer to a predominantly black school, and a black student may transfer to a predominantly white school. The District also contends that the racial tiebreaker was necessary because other race-neutral activities were inadequate to achieve their compelling interests. 1, 2, and 4 p.65 (That the Constitution is color blind is our dedicated belief); Brief for Appellants in Brown v. Board of Education, O.T. 1952, No. If this interest justifies race-conscious measures today, then logically it will justify race-conscious measures forever. Section 4. Far from being narrowly tailored, this system threatens to defeat its own ends, and the district has provided no convincing explanation for its design. The Ninth Circuit initially reversed based on its interpretation of the Washington Civil Rights Act, 285 F.3d 1236, 1253 (2002) (Parents Involved II), and enjoined the districts use of the integration tiebreaker, id., at 1257. in KentuckyThe Second Year After the Supreme Courts Decision, 25 J. Negro Educ. In fact, they are even more narrowly tailored than the Grutter plan, which withstood strict scrutiny. Segregation in the South grew up and is kept going because and only because the white race has wanted it that wayan incontrovertible fact which itself hardly consorts with equality). Furthermore, Kennedy found that race-conscious mechanisms can be used by school districts to further the goal of diversity, a position rejected by the plurality. The statement by Justice Harlan that [o]ur Constitution is color-blind was most certainly justified in the context of his dissent in Plessy v. Ferguson, 163 U. S. 537, 559 (1896). . gation plans. to reject the argument that a race-conscious plan is permissible only when there has been a judicial finding of de jure segregation. 610 F.2d, at 663664. Ante, at 28. Justice Breyers dissent next looks for authority to a footnote in Washington v. Seattle School Dist. 1 (2007), the Supreme Court ruled this plan unconstitutional under the 14th amendment. 1 et al. See Brief for Respondent at 13. 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. 539 U. S., at 328. No. In reality, it is far from apparent that coerced racial mixing has any educational benefits, much less that integration is necessary to black achievement. As the Court notes, we recognized the compelling nature of the interest in remedying past intentional discrimination in Freeman v. Pitts, 503 U. S. 467, 494 (1992), and of the interest in diversity in higher education in Grutter. Grutter, supra, at 326; see also Part IIA, infra. The Jefferson County Board of Education fails to meet this threshold mandate when it concedes it denied Joshuas requested kindergarten transfer on the basis of his race under its guidelines, yet also maintains that the guidelines do not apply to kindergartners. See, e.g., Brief for Respondents in No. 2d, at 844845, nn. Section 5. The Court also found that the magnet programs available at the high school in question were not available at other high schools in the school district. 2. 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. Some schools are more popular than others. 539 U.S. at 316. 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. 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. The district retained a racial tiebreaker for oversubscribed schools, which takes effect only if the schools minority or majority enrollment falls outside of a 30% range centered on the minority/majority population ratio within the district. In a footnote the Justice added a personal mention of Justice Breyer: "Justice Breyer's good intentions, which I do not doubt, have the shelf life of Justice Breyer's tenure. It nonetheless employs the racial tiebreaker in an attempt to address the effects of racially identifiable housing patterns on school assignments. 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 Source: G. Orfield & C. Lee, Racial Transformation and the Changing Nature of Segregation 18 (Table 8) (Jan. 2006), (Civil Rights Project), online at http://www.civilrightspro in No. Lacking a cognizable interest in remediation, neither of these plans can survive strict scrutiny because neither plan serves a genuinely compelling state interest. It is an interest in maintaining hard-won gains. Compare Brief for Appellees in Davis v. County School Board, O.T. 1952, No. Grutter itself reiterated that outright racial balancing is patently unconstitutional. 539 U. S., at 330. 214a, 225a, 257a. See N. St. John, School Desegregation Outcomes for Children 6768 (1975) (A glance at [the data] shows that for either race positive findings are less common than negative findings); Stephan, The Effects of School Desegregation: An Evaluation 30 Years After Brown, in Advances in Applied Social Psychology 183186 (M. Saks & L. Saxe eds. The minimal effect these classifications have on student assignments, however, 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. 05908, pp. Rather, race-based government decisionmaking is categorically prohibited unless narrowly tailored to serve a compelling interest. in No. The Constitution is color-blind. See also Statement of Appellees Opposing Jurisdiction and Motion to Dismiss or Affirm in Davis v. County School Board, O.T. 1952, No. 2d 358, 360 (2000). Some studies have even found that a deterioration in racial attitudes seems to result from racial mixing in schools. Written and curated by real attorneys at Quimbee. Brief in Opposition in No. "[5] He went on to say, "What the government is not permitted to do, absent a showing of necessity not made here, is to classify every student on the basis of race and to assign each of them to schools based on that classification. At the same time, the plan provided that a previous black school would remain about 50% black, while a previous white school would remain about two-thirds white. Seattles circumstances are not meaningfully different from those in, say, McDaniel, where this Court approved race-conscious remedies. The District Court also adopted a complex desegregation plan designed to achieve the orders targets. The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting. Wash. Rev. They are tied to each districts specific racial demographics, rather than to any pedagogic concept of the level of diversity needed to obtain the asserted educational benefits. See Juris. But eventually a state court found that the mandatory busing was lawful. . No. See, e.g., Milliken, 433 U. S., at 280, n.14; Freeman, 503 U. S., at 495496 (Where resegregation is a product not of state action but of private choices, it does not have constitutional implications). It again redrew school assignment boundaries. Most white families live north of the downtown area where four high schoolsBallard, Ingraham, Nathan Hale, and Rooseveltare located. Id. See post, at 5, 89, 18, 23. Nonetheless, in light of Grutter and other precedents, see, e.g., Bakke, 438 U. S., at 290 (opinion of Powell, J. Rather, they apply the strict scrutiny test in a manner that is fatal in fact only to racial classifications that harmfully exclude; they apply the test in a manner that is not fatal in fact to racial classifications that seek to include. See, e.g., Swann, supra, at 2627; Montgomery Co. Bd. He concluded by saying that the current Court has greatly changed and that previously: "[I]t wasmore faithful to Brown and more respectful of our precedent than it is today. See School Comm. It is well established that when a governmental policy is subjected to strict scrutiny, the government has the burden of proving that racial classifications are narrowly tailored measures that further compelling governmental interests. Johnson, supra, at 505 (quoting Adarand Constructors, Inc. v. Peńa, 515 U. S. 200, 227 (1995)). 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. 2d 304. And it is a label that an individual is powerless to change. schoolId=1061&report 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. The Department of Education has characterized this as a compelling interest in regulations and various other statements. App. As the Court recently reaffirmed, racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification. Gratz v. Bollinger, 539 U. S. 244, 270 (2003) (quoting Fullilove v. Klutznick, 448 U. S. 448, 537 (1980) (Stevens, J., dissenting); brackets omitted). See App. As well, because the racial tiebreaker is only used when more students apply to a certain school than there are spots, schools such as Ranier and Clevelandwhich have only ten percent of white students and are not popular choices remain racially imbalanced. In 1987, the U. S. Commission on Civil Rights studied 125 large school districts seeking integration. To Harris? No State shall deny to any person within its jurisdiction the equal protection of the laws. U. S. v. Detiege, 358 U. S. 54 (1958) (per curiam) (public parks); Gayle v. Browder, 352 U. S. 903 (1956) (per curiam) (buses); Holmes v. Atlanta, 350 U. S. 879 (1955) (per curiam) (golf courses); Mayor of Baltimore v. Dawson, 350 U. S. 877 (1955) (per curiam) (beaches). Id. 3, p.1 ([T]he Court is asked to outlaw the fixed policies of the several States which are based on local social conditions well known to the respective legislatures); id., at 9 (For this purpose, Virginia history and present Virginia conditions are important); Tr. 2d 753, 762764 (WD Ky. 1999). 2d, at 370. What about historically black colleges, which have established traditions and programs that might disproportionately appeal to one race or another? 254, 256, 261 (1956) (40 of Kentuckys 180 school districts began desegre- The subsequent statements by the unanimous Court in Swann v. Charlotte-Mecklenburg Bd. In June 2007 the United States Supreme Court issued a narrow five to four ruling invalidating racial integration plans in Seattle, Washington and Louisville, Kentucky. PARENTS INVOLVED IN COMMUNITY SCHOOLS v. SEATTLE SCHOOL DISTRICT NO. Cf. In 2000, for example, Roosevelt was the most popular first choice high school in Seattle; in 2001, Ballard was the most popular; in 2000, West Seattle was one of the least popular; by 2003, it was one of the more popular. "[26] An interest "linked to nothing other than proportional representation of various races . 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. 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))). See post, at 62. of Ed. The Ninth Circuit held that the burden had not been met since counsel for the School District admitted it was likely that the policy would be reinstated. 2, p. 59 ([I]t would be difficult indeed to find a case so favored by precedent as is the case for South Carolina here). Where there has been de jure segregation, there is a cognizable legal wrong, and the courts and legislatures have broad power to remedy it. Although the Constitution almost always forbids the former, it is significantly more lenient in respect to the latter. Beyond those minimum requirements, the Court left much of the determination of how to achieve integration to the judgment of local communities. See, e.g., Hallinan 745; Quillian & Campbell, Beyond Black and White: The Present and Future of Multiracial Friendship Segregation, 68 Am. 3, p. 57 ([T]he historical background that exists, certainly in this Virginia situation, with all the strife and the history that we have shown in this record, shows a basis, a real basis, for the classification that has been made); id., at 69 (describing the potential abolition of segregation as contrary to the customs, the traditions and the mores of what we might claim to be a great people, established through generations, who themselves are fiercely and irrevocably dedicated to the preservation of the white and colored races). 1, 551 U.S. 701 (2007) Plaintiff- Parents Involved in Community Schools (non-profit organization led by Kathleen Get started for FREE Continue Government action dividing people by race is inherently suspect because such classifications promote notions of racial inferiority and lead to a politics of racial hostility, Croson, supra, at 493, reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin, Shaw v. Reno, 509 U. S. 630, 657, and endorse race-based reasoning and the conception of a Nation divided into racial blocs, thus contributing to an escalation of racial hostility and conflict, Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 603 (OConnor, J., dissenting). 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. However closely related race-based assignments may be to achieving racial balance, that itself cannot be the goal, whether labeled racial diversity or anything else. 2d 304. 2. See, e.g., Brief for Appellees on Reargument in Briggs v. Elliott, O.T. 1953, No. Many parents, white and black alike, want their children to attend schools with children of different races. See Hallinan, Diversity Effects on Student Outcomes: Social Science Evidence, 59 Ohio St. L.J. 2d 834, 839840, and n. 6 (WD Ky. 2004) (McFarland I). See Church of the Lukumi v. Hialeah, 508 U.S. 520, 54647 (1993); Florida Star v. B.J.F. Since Grutter explicitly stated that seeking to maintain a specific percentage of minority students in the student body was patently unconstitutional, PICS contends that the Districts plan is also ipso facto unconstitutional. These cases consider the longstanding efforts of two local school boards to integrate their public schools. In a typical year, say, 1995, about 20,000 potential high school students participated. In my view, to defer to ones preferred result is not to defer at all. Under the Supreme Court's precedents on racial classification in higher education, Grutter v. Bollinger and Gratz v. Bollinger, race-based classifications must be directed toward a "compelling government interest" and must be "narrowly tailored" to that interest. Const., Art. 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. 2d, at 360. See id., at 12, 2930. When it comes to using race to assign children to schools, history will be heard. Electoral district lines are facially race neutral so a more searching inquiry is necessary before strict scrutiny can be found applicable in redistricting cases than in cases of classifications based explicitly on race (quoting Adarand, 515 U. S., at 213)). 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. 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. Second, Seattle noted that it has ceased using the racial tiebreaker pending the outcome of this litigation. And stubborn facts of history linger and persist. 503 U. S., at 495. Research J., No. 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 . But, as a judge, I do know that the Constitution does not authorize judges to dictate solutions to these problems. I am not aware of any case in which this Court has read the narrow tailoring test to impose such a requirement. Third, the manner in which the school boards developed these plans itself reflects narrow tailoring. Each plan was devised to overcome a history of segregated public schools. Indeed, in 1968, the Illinois Supreme Court rejected an equal protection challenge to a race-conscious state law seeking to undo de facto segregation: To support [their] claim, the defendants heavily rely on three Federal cases, each of which held, no State law being involved, that a local school board does not have an affirmative constitutional duty to act to alleviate racial imbalance in the schools that it did not cause. Lower state and federal courts had considered the matter settled and uncontroversial even before this Court decided Swann. ", Justice Stephen G. Breyer, in the principal dissenting opinion, dismissed Justice Kennedy's proposed alternatives to the labeling and sorting of individual students by race and, in a surprisingly emotional 20 minute speech from the bench, denounced the plurality opinion. And what has happened to Swann? For at least two reasons, however, it is wrong to place the remediation of segregation on the same plane as the remediation of racial imbalance. Considering the precedent of Grutter v. Bollinger (2003), which is only partly applicable because it concerns higher education, it is apparent that educational institutions must use diversity as one of several admissions criteria rather than setting strict quotas. The second most important tiebreaker was a racial factor intended to maintain racial diversity. If too many students list the same school as their first choice, the district employs a series of tiebreakers to determine who will fill the open slots at the oversubscribed school. Because students often attend schools closest to their homes, the result is racially segregated schools. And it ordered the board not to control access to those scarce programs through the use of racial targets. in No. 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). Contrary to what the dissent would have predicted, see post, at 3839, the children in Seattles African American Academy have shown gains when placed in a highly segregated environment. In doing so, a reviewing judge must be fully aware of the potential dangers and pitfalls that Justice Thomas and Justice Kennedy mention. Rather, the Constitution creates a democratic political system through which the people themselves must together find answers. 3 1996 Memorandum 58; Hampton I, supra, at 768, n.30. The idea that if race is the problem, race is the instrument with which to solve it cannot be accepted as an analytical leap forward. The plan required that each elementary school in the district maintain 20% to 40% enrollment of African-American students, corresponding to the racial composition of the district. Because the Constitution emphatically does not forbid the use of race-conscious measures by districts in the South that voluntarily desegregated their schools, on what basis does the plurality claim that the law forbids Seattle to do the same? 1 (2007) Term 1 / 8 What are the core facts of the case? of Los Angeles, 458 U. S. 527 (1982), post, at 24, in which a state referendum prohibiting a race-based assignment plan was challenged, is inappositein Crawford the Court again expressly reserved the question presented by these cases. See, e.g., Citizens for Better Ed. have recognized that voluntary programs of local school authorities designed to alleviate de facto segregation and racial imbalance in the schools are not constitutionally forbidden. Tometz v. Board of Ed., Waukegan School Dist. [12] In order to survive strict scrutiny analysis, "a narrowly tailored plan" must be presented in order to achieve a "compelling government interest. In 2003, the petitioner now before us, Crystal Meredith, brought this lawsuit challenging the plans unmodified portions, i.e., those portions that dealt with ordinary, not magnet, schools. Id., at 470. See supra, at 4648. . The citations do not carry the significance the districts would ascribe to them. In other words, it will always be important for students to learn cooperation among the races. A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue. The order required the school board to create and to maintain schools with student populations that ranged, for elementary schools, between 12% and 40% black, and for secondary schools (with one exception), between 12.5% and 35% black. To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken. It gave third preference to students residing in the neighborhood. The fact that those children may not be denied such admission based on their race because of undersubscription or oversubscription that benefits them does not eliminate the injury claimed. The plan consequently redrew the racial guidelines, setting the boundaries at 15% to 50% black for all schools. Click the card to flip Definition 1 / 8 Seattle School District instituted a "tiebreaker" plan which placed determined student placements on the consideration of a predetermined racial balance In part for those reasons, the Court has never permitted outright racial balancing solely for the purpose of achieving a particular racial balance. 44, p.6 (200304 Jefferson County Public Schools Elementary Student Assignment Application, Section B) (Assignment is made to a school for Primary 1 (Kindergarten) through Grade Five as long as racial guidelines are maintained. For Swann is predicated upon a well-established legal view of the Fourteenth Amendment. 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. McFarland I, supra, at 837. The NAACPs First Legal Challenge and Seattles Response, 1969 to 1977. It is well established that when the government distributes burdens or benefits on the basis of individual racial classifications, that action is reviewed under strict scrutiny. A victory for PICS, on the other hand, will indicate that equal protection rights are applicable to citizens of all ages and affirm the notion that race can not be an exclusive criterion of classification. I also join Parts IIIA and IIIC for reasons provided below. But the district vigorously defends the constitutionality of its race-based program, and nowhere suggests that if this litigation is resolved in its favor it will not resume using race to assign students. Fifty-three of the 125 studied districts used transfers as a component of their plans. One amicus reports that [i]n study after study, racial composition of a student body, when isolated, proves to be an insignificant determinant of student achievement. Brief for Dr. John Murphy etal. Hence, I am not surprised that Justice Kennedy finds that, a district may consider it a compelling interest to achieve a diverse student population, including a racially diverse population. To Seattle School Dist. The Seattle school district runs ten public high schools. See App. The districts also quote with approval an in-chambers opinion in which then-Justice Rehnquist made a suggestion to the same effect. The histories I have set forth describe the extensive and ongoing efforts of two school districts to bring about greater racial integration of their public schools. 4, pp. The boards work in communities where demographic patterns change, where they must meet traditional learning goals, where they must attract and retain effective teachers, where they should (and will) take account of parents views and maintain their commitment to public school education, where they must adapt to court intervention, where they must encourage voluntary student and parent actionwhere they will find that their own good faith, their knowledge, and their understanding of local circumstances are always necessary but often insufficient to solve the problems at hand. This leads it to advance propositions that, in my view, are both erroneous and in fundamental conflict with basic equal protection principles. Indeed, in its more recent opinions, the Court recognized that the fundamental purpose of strict scrutiny review is to take relevant differences between fundamentally different situations . 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. A further 16% were assigned to a school they had not listed. Cf. of Ed. ents in No. And it thereby required, for example, all fourth grade students from the previously black and previously white schools first to attend together what would now be a mixed fourth grade at one of the school buildings and then the next year to attend what would now be a mixed fifth grade at the other school building.
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