in No. If todays dissent said it was adhering to the views expressed in the separate opinions in Gratz and Grutter, see Gratz, 539 U. S., at 281 (Breyer, J., concurring in judgment); id., at 282 (Stevens, J., dissenting); id., at 291 (Souter, J., dissenting); id., at 298 (Ginsburg, J., dissenting); Grutter, supra, at 344 (Ginsburg, J., concurring), that would be understandable, and likely within the traditionto be invoked, in my view, in rare instancesthat permits us to maintain our own positions in the face of stare decisis when fundamental points of doctrine are at stake. 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. Justice Thomas suggests that it will be easy to identify de jure segregation because [i]n most cases, there either will or will not have been a state constitutional amendment, state statute, local ordinance, or local administrative policy explicitly requiring separation of the races. Ante, at 6, n.4 (concurring opinion). See Brief for Petitioner at 26. See, e.g., Regents of Univ. (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. 1.9 In Parents Involved in Community Schools v. Seattle School District No. 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. Is it not of all the activities of government the one which most nearly approaches the hearts and minds of people, the question of the education of their young? 5. The diversity interest was not focused on race alone but encompassed all factors that may contribute to student body diversity. Id., at 337. Assigning to each student a personal designation according to a crude system of individual racial classifications is quite a different matter; and the legal analysis changes accordingly. 10226a. Plessy, supra, at 559 (Harlan, J., dissenting). The next Term, we accordingly stated that full compliance with Brown I required school districts to achieve a system of determining admission to the public schools on a nonracial basis. Brown II, 349 U. S., at 300301 (emphasis added). The limitation of this power to instances where there has been de jure segregation serves to confine the nature, extent, and duration of governmental reliance on individual racial classifications. In 1963, the transfer programs first year, 239 black students and 8 white students transferred. Instead of strict scrutiny, Judge Kozinski would have analyzed the plans under robust and realistic rational basis review. Id., at 1194. & Rodgers, Coercion to Compliance: Southern School Districts and School Desegregation Guidelines, 38 J. of Boston in 1968. Here, the context is one in which school districts seek to advance or to maintain racial integration in primary and secondary schools. 1 L. Kohn, Priority Shift: The Fate of Mandatory Busing for School Desegregation in Seattle and the Nation 2730, 32 (Mar. Purportedly benign race-based decisionmaking suffers the same constitutional infirmity as invidious race-based decisionmaking. If the need for the racial classifications embraced by the school districts is unclear, even on the districts own terms, the costs are undeniable. 10 on Reargument in Brown I, O.T. 1953, p.15 (Summary of Argument). 1, supra. United States v. Montgomery County Bd. When a court subjects governmental action to strict scrutiny, it cannot construe ambiguities in favor of the State. Today, however, the Court restricts (and some Members would eliminate) that leeway. Compare Eisenberg, 197 F.3d, at 133, with Comfort, 418 F.3d, at 13. In the 20002001 school year, for example, with the racial tiebreaker, the entering ninth grade class at Franklin High School had a 60% minority population; without the racial tiebreaker that same class at Franklin would have had an almost 80% minority population. See supra, at 1214. We construe Brown as endorsing Mr. Justice Harlans classical statement in Plessy v. Ferguson, 163 U. S. 537, 539: Our constitution is color-blind, and neither knows nor tolerates classes among citizens). Before the Lawsuit, 1954 to 1972. I use the words may need here deliberately. To Harris? Educational Research 531, 550 (1994) (hereinafter Wells & Crain). As part of that burden it must establish, in detail, how decisions based on an individual students race are made in a challenged governmental program. How could such a plan be lawful the day before dissolution but then become unlawful the very next day? Several factors, taken together, nonetheless lead me to conclude that the boards use of race-conscious criteria in these plans passes even the strictest tailoring test. Any use of race to distinguish one person from another threatens to stigmatize individuals and incite hostility. 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. [Footnote 24], The similarities between the dissents arguments and the segregationists arguments do not stop there. The sweep of the mandate claimed by the district is contrary to our rulings that remedying past societal discrimination does not justify race-conscious government action. Although there is arguably a danger of racial imbalance in schools in Seattle and Louisville, there is no danger of resegregation. In order to create a numerical racial balance among its 10 public high schools, the Seattle School District assigned students among them. Parents Involved VII, supra, at 1166. This Court has made many decisions of widespread effect; none would affect more people more directly in more fundamental interests and, in fact, cause more chaos in local government than a reversal of the decision in this case). If the Court defers to the district, this will reaffirm local autonomy and give districts broad discretion to develop educational policy. 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. Part IV (again joined only by a plurality of the Court) addressed Justice Breyer's dissent. Louisville asserts several similar forward-looking interests, Brief for Respondents in No. [Footnote 8]. The dissent rests on the assumptions that these sweeping race-based classifications of persons are permitted by existing precedents; that its confident endorsement of race categories for each child in a large segment of the community presents no danger to individual freedom in other, prospective realms of governmental regulation; and that the racial classifications used here cause no hurt or anger of the type the Constitution prevents. 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)). Though Brown decisively rejected those arguments, todays dissent replicates them to a distressing extent. Order No. I wholly concur in The Chief Justices opinion. Parents Involved in Cmty. Although much depends on the outcome, the rationale of the Court is equally important in this case and to the future policy of public schools. The rights established are personal rights). Brief for Petitioner at 79. v. Swann, 402 U. S. 43, 4546 (1971). In Johnson v. California, 543 U. S. 499 (2005), this Court considered a California prison policy that separated inmates racially. The Court in the seminal case Roe v. Wade made a jurisdictional ruling that although the plaintiff was no longer pregnant and thus technically the issue before the court was moot, given the short nature of pregnancy as compared to the length of the appellate process, requiring a continuing pregnancy for the satisfaction of the case or controversy requirement would effectively deny appellate review. Chief Justice Roberts announced the judgment of the Court, and delivered the opinion of the Court with respect to Parts I, II, IIIA, and IIIC, and an opinion with respect to Parts IIIB and IV, in which Justices Scalia, Thomas, and Alito join. 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. [citation needed]. Consequently, the demographics of a neighborhood school would also be the consequence of those individual choices. The Courts misuse of the three-tiered approach to Equal Protection analysis merely reconfirms my own view that there is only one such Clause in the Constitution. Twenty-one elementary schools were between roughly 90% and 100% white. 1 1991 Memorandum 14, 711 (Stipulated Exh. 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. in McFarland I, pp. . See Seattle School District, Middle School and High School 2006-2007 Enrollment Guide for Parents, at 40. For Brown held out a promise. The compelling interest at issue here, then, includes an effort to eradicate the remnants, not of general societal discrimination, ante, at 23 (plurality opinion), but of primary and secondary school segregation, see supra, at 7, 14; it includes an effort to create school environments that provide better educational opportunities for all children; it includes an effort to help create citizens better prepared to know, to understand, and to work with people of all races and backgrounds, thereby furthering the kind of democratic government our Constitution foresees. Brief for Respondents in No. And the Court, using the very phrase that Justice Marshall had used to describe strict scrutinys application to any exclusionary use of racial criteria, sought to dispel the notion that strict scrutiny is as likely to condemn inclusive uses of race-conscious criteria as it is to invalidate exclusionary uses. Seattle and Louisville are two such districts, and the histories of their present plans set forth typical school integration stories. That principle has been accepted by every branch of government and is rooted in the history of the Equal Protection Clause itself. in Briggs v. Elliott, O.T. 1953, No. Numerous state and federal courts explicitly relied upon Swanns guidance for decades to follow. When the actual racial breakdown is considered, enrolling students without regard to their race yields a substantially diverse student body under any definition of diversity. And it thereby set the Nation on a path toward pub-lic school integration. The citations do not carry the significance the districts would ascribe to them. Gen. Acts 552 (2007). Federal authorities had claimedas the NAACP and the OCR did in Seattlethat Clarke County schools were segregated in law, not just in fact. Perhaps recognizing as much, the dissent argues that the social science evidence is strong enough to permit a democratically elected school board reasonably to determine that this interest is a compelling one. Post, at 38. 1 Complaint in Adams v. Forbes Bottomly, Civ. The racial breakdown of this nonwhite group is approximately 23.8 percent Asian-American, 23.1 percent African-American, 10.3 percent Latino, and 2.8 percent Native-American. It is the height of arrogance for Members of this Court to assert blindly that their motives are better than others. The constitutional problems with government race-based decisionmaking are not diminished in the slightest by the presence or absence of an intent to oppress any race or by the real or asserted well-meaning motives for the race-based decisionmaking. Most white families live north of the downtown area where four high schoolsBallard, Ingraham, Nathan Hale, and Rooseveltare located. While we do not suggest that greater use of race would be preferable, the minimal impact of the districts racial classifications on school enrollment casts doubt on the necessity of using racial classifications. 1922). Level=School&orgLinkId=1061&yrs=; http://reportcard. This case was brought by a non-profit organization, Parents Involved in Community Schools (PICS), representing parents of students in the Seattle School District (District) who objected to the school districts use of race as a tiebreaker for admission to schools as violating the Equal Protection Clause. 1, 426 F. 3d 1162, 1177 (9th Cir. The pluralitys position, I fear, would break that promise. No. 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. Two additional precedents more directly related to the plans here at issue reinforce my conclusion. Public Schools, 416 F.3d 513 (2005); Memorandum from Stephen W. Daeschner, Superintendent, to the Board of Education, Jefferson Cty. The Seattle Plan: Mandatory Busing, 1978 to 1988. B to Roe Affidavit in Seattle School Dist. 05908, at 38a. However, some students still must take public transportation. The inclusion of minority teachers in the educational process inevitably tends to dispel that illusion whereas their exclusion could only tend to foster it). In this case, the Ninth Circuit held that the School District had a compelling state interest in achieving racial and ethnic diversity in its individual schools. See Brief for Respondents in No. How could the plurality adopt a constitutional standard that would hold unconstitutional large numbers of race-conscious integration plans adopted by numerous school boards over the past 50 years while remaining true to this Courts desegregation precedent? The school board plans before us resemble many others adopted in the last 50 years by primary and secondary schools throughout the Nation. v. Bakke, 438 U. S. 265, 310 (1978) (opinion of Powell, J.). See 448 U. S., at 539. 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. 2004). v. UNIVERSITY OF TEXAS AT AUSTIN, et al., RESPONDENTS . Even if the district maintains the current plan and reinstitutes the racial tiebreaker, Seattle argues, Parents Involved members will only be affected if their children seek to enroll in a Seattle public high school and choose an oversubscribed school that is integration positivetoo speculative a harm to maintain standing. In most cases, there either will or will not have been a state constitutional amendment, state statute, local ordinance, or local administrative policy explicitly requiring separation of the races. In Seattle School Dist. See also Grutter, supra, at 326 ([G]overnmental action based on racea group classification long recognized as in most circumstances irrelevant and therefore prohibitedshould be subjected to detailed judicial inquiry (internal quotation marks and emphasis omitted)). Fifty-three of the 125 studied districts used transfers as a component of their plans. [Footnote 14]. 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. The plurality also points to the school districts use of numerical goals based upon the racial breakdown of the general school population, and it faults the districts for failing to prove that no other set of numbers will work. In Grutter, in the context of law school admissions, we found that these types of interests were, constitutionally speaking, compelling. See 539 U. S., at 330 (recognizing that Michigan Law Schools race-conscious admissions policy promotes cross-racial understanding, helps to break down racial stereotypes, and enables [students] to better understand persons of different races, and pointing out that the skills needed in todays increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints (internal quotation marks omitted; alteration in original)). schoolId=1043&reportLevel=School&orgLinkId=1043& And if Seattle School Dist. The Washington Supreme Court determined that the State Civil Rights Act bars only preferential treatment programs where race or gender is used by government to select a less qualified applicant over a more qualified applicant, and not [p]rograms which are racially neutral, such as the [districts] open choice plan. Parents Involved in Community Schools v. Seattle School Dist., No. 05908, p.13, n.13. In 2007, the United States Supreme Court struck down two local school board initiatives meant to reverse extreme racial segregation in public schools. 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. If a parent identifies more than one race on the form, [t]he application will not be accepted and, if necessary, the enrollment service person taking the application will indicate one box. App. In 2001, the district adopted its plan classifying students as black or other in order to make certain elementary school assignments and to rule on transfer requests. Many parents, white and black alike, want their children to attend schools with children of different races. of Cal. It pledged the use of other resources in order to encourage all schools to achieve an African-American enrollment equivalent to the average district-wide African-American enrollment at the schools respective elementary, middle or high school level. And the plan continued use of magnet schools. In light of the foregoing, Justice Breyers appeal to stare decisis rings particularly hollow. 254, 256, 261 (1956) (40 of Kentuckys 180 school districts began desegre- One can attempt to identify a construction of Jefferson Countys student assignment plan that, at least as a logical matter, complies with these competing propositions; but this does not remedy the underlying problem. They asked the court to dissolve the desegregation order and to hold the use of magnet school racial guidelines unconstitutional. 4. 11246, 30 Fed. 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). 1, p.14 (We advocate only a concept of constitutional law that permits determinations of state and local policy to be made on state and local levels. Research J., No. Los Angeles v. Lyons, 461 U. S. 95, 109 (1983). 2, pp. 2d 1, 5 (1965); Jackson v. Pasadena City School Dist., 59 Cal. Eight of those States condition approval of transfers to another school or district on whether the transfer will produce increased racial integration. This assertion is inexplicable. McDaniel concerned a Georgia school system that had been segregated by law. . Although we examine the plans under the same legal framework, the specifics of the two plans, and the circumstances Compare Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (Harlan, J., dissenting) (Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. in No. 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. They are based upon numerous sources, which for ease of exposition I have cataloged, along with their corresponding citations, at Appendix B, infra. Jefferson County accordingly does not rely upon an interest in remedying the effects of past intentional discrimination in defending its present use of race in assigning students. Even after Brown, some schools with predominantly black enrollments have achieved outstanding educational results. In such cases, race-based remedial measures are sometimes required. 2 Id., at 151152; Hanawalt 3738; Seattle School Dist. 05-908 v. SEATTLE SCHOOL DISTRICT NO. And the design of particular plans has been dictated by both the law and the specific needs of the district. Ibid. Pp. This is especially true when we seek assurance that opportunity is not denied on account of race. Parents Involved, the Court noted that: Seattle and Louisville had not demonstrated that they seriously considered race-neutral alternatives; the individual racial classifications used had a minimal impact that cast doubt on their necessity; the districts defined 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. Other cases cited are similarly inapplicable. first today in 05-908, Parents Involved in Community Schools versus Seattle School District Number 1. More broadly, however, allowing racial diversity or balance as a compelling state interest, even if confined to secondary education, calls into question the Equal. See McDaniel, 402 U. S., at 41 ([S]teps will almost invariably require that students be assigned differently because of their race. . Seattle Public Schools Transportation Service Standards. After all, a number of school districts in the South that the Government or private plaintiffs challenged as segregated by law voluntarily desegregated their schools without a court orderjust as Seattle did. Nothing in the opinion approves use of racial classifications as the means to address the imbalance. The first consists of the District Court determination in the Louisville case when it dissolved its desegregation order that there was overwhelming evidence of the Boards good faith compliance with the desegregation Decree and its underlying purposes, indeed that the Board had treated the ideal of an integrated system as much more than a legal obligationthey consider it a positive, desirable policy and an essential element of any well-rounded public school education. Hampton II, 102 F.Supp. The Bible would be known in the legal community as the first Mr. Justice Harlans dissent in Plessy v. Ferguson, 163 U. S. 537, 552 (1896). Third, real-world efforts to substitute racially diverse for racially segregated schools (however caused) are complex, to the point where the Constitution cannot plausibly be interpreted to rule out categorically all local efforts to use means that are conscious of the race of individuals. May a school district that is not racially segregated and that normally permits a student to attend any high school of her choosing deny a child admission to her chosen school solely because of her race in an effort to achieve a desired racial balance in particular schools, or does such racial balancing violated the. in No. The districts have also failed to show they considered methods other than explicit racial classifications to achieve their stated goals. 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. There is nothing technical or theoretical, post, at 30, about our approach to such dicta. 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. ); internal quotation marks omitted). 05915, at 38. See ante, at 1820. 2, p. 83 (It [South Carolina] is confident of its good faith and intention to produce equality for all of its children of whatever race or color. 2002). The validity of our concern that racial balancing has no logical stopping point, Croson, supra, at 498 (quoting Wygant, supra, at 275 (plurality opinion); internal quotation marks omitted); see also Grutter, supra, at 343, is demonstrated here by the degree to which the districts tie their racial guidelines to their demographics. More recently, however, progress has stalled. 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). Post, at 22. Does it insist upon especially strong evidence supporting inclusion of multiple minority groups in an otherwise lawful government minority-assistance program? It is even more difficult to accept the pluralitys contrary view, namely that the underlying plan was unconstitutional. That school was founded in 1990 as part of the school boards effort to increase academic achievement.[Footnote 12] See African American Academy History, online at http://www. Both Grutter and Gratz applied a strict scrutiny analysis and affirmed that achieving a diverse student body is a compelling state interest in higher education. To raise the specter of resegregation to defend these programs is to ignore the meaning of the word and the nature of the cases before us. See Gomillion v. Lightfoot, 364 U. S. 339, 343344 (1960) (admonishing that, in dealing with claims under broad provisions of the Constitution, which derive content by an interpretive process of inclusion and exclusion, it is imperative that generalizations, based on and qualified by the concrete situations that gave rise to them, must not be applied out of context in disregard of variant controlling facts). In keeping with his view that strict scrutiny should not apply, Justice Breyer repeatedly urges deference to local school boards on these issues. Rather, such powers should have been temporary and used only to overcome the widespread resistance to the dictates of the Constitution. 515 U. S., at 125 (Thomas, J., concurring). No distinction was made between various categories of non-whites; Asian-Americans, Latinos, Native Americans, and African-Americans were all treated solely as "non-white" for purposes of the tiebreaker. The Court made clear that [s]trict scrutiny does not trea[t] dissimilar race-based decisions as though they were equally objectionable. Ibid. in No. The dream of a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs. Id., at 505506. J.) The five Justices who signed on to the plurality opinion and Justice Scalia's concurrence are the same five who struck down Seattle's voluntary desegregative busing plan in Parents Involved in Community Schools v. Seattle School District No. Race may be one component of that diversity, but other demographic factors, plus special talents and needs, should also be considered. 11-345 In the Supreme Court of the United States ABIGAIL NOEL FISHER, PETITIONER . As well, there is precedent for finding jurisdiction in situations where the passage of time has prevented a direct remedy. . This plan is in place as of 2017. 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. The plan also established Parent Assistance Centers to help parents and students navigate the school selection and assignment process. Scholars have differing opinions as to whether educational benefits arise from racial balancing. To adopt the dissents deferential approach would be to abdicate our constitutional responsibilities. They were further persuaded that these plans differed from other race-based programs this Court has considered because they are certainly more benign than laws that favor or disfavor one race, segregate by race, or create quotas for or against a racial group, Comfort, 418 F.3d, at 28 (Boudin, C.J., concurring), and they are far from the original evils at which the Fourteenth Amendment was addressed, id., at 29; 426 F.3d, at 1195 (Kozinski, J., concurring). of Ed., 402 U. S. 1, 16 (1971), by then-Justice Rehnquist in chambers in Bustop, Inc. v. Los Angeles Bd. Cf. A federal District Court dismissed the suit, upholding the tiebreaker. The Court has allowed school districts to remedy their prior de jure segregation by classifying individual students based on their race. It therefore reversed the lower courts original finding of no discrimination and remanded, instructing the lower court to issue an injunction to prevent the District from using this system. See Chevron U. S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 845 (1984). And the fact that the state and local governments had relied on statements in this Courts opinions was irrelevant to the Brown Court. As a threshold matter, we must assure ourselves of our jurisdiction.