Parents Involved in Community Schools v. Seattle School District No. 1: Background
In 2003, the Supreme Court issued two decisions in which it considered for the first time since the 1978 Bakke decision the constitutionality of the use of race in connection with university admissions. One case dealt with the undergraduate admission plan at the University of Michigan. Under this plan, students who were members of an under-represented racial or ethnic minority received a certain number of “points” towards admission. The second case considered the admission plan at the University of Michigan Law School. The law school’s admission plan was different. The law school admission office considered race, but only in the context of other admission criteria; it did not use the “point” system used by the undergraduate admission office.
The Court applied strict scrutiny to both admission plans. In Grutter (in a five-to-four vote with Justice O’Connor writing for the majority), the Court found the law school plan to be constitutional, while in Gratz (in a six-to-three vote with Chief Justice Rehnquist writing for the majority), the Court found the undergraduate plan to be unconstitutional.
In Grutter, the Court found that the law school’s asserted purpose in considering race in the admission process — to obtain “the educational benefits that flow from a diverse student body” — was compelling. The Court went on to find that the law school’s use of race in the admission process was narrowly tailored to accomplish that purpose. The dissenters posed some non-race-based alternatives that the law school could have used to fulfill the law school’s diversity purpose, such as admitting students by lottery, but the majority concluded that “narrow tailoring does not require exhaustion of every conceivable race-neutral alternative.”
In Gratz, Justices O’Connor and Breyer joined the four Grutter dissenters to find the undergraduate admission plan unconstitutional. The Court found that the undergraduate plan was not narrowly tailored to achieve the university’s asserted compelling interest in diversity. The Court emphasized that the undergraduate admission office, unlike the law school admission office, did not consider “each particular applicant as an individual” because the points awarded for minority status essentially made race decisive “for virtually every minimally qualified underrepresented minority applicant.” Because the plan was not narrowly tailored, it was unconstitutional.
In 2007, in the following case, the Court considered the constitutionality of the use of race in the assignment of children to elementary and secondary school.
Parents Involved in Community Schools v.
Seattle School District No. 1
551 U.S. 701 (2007)
[Majority: Roberts (C. J.), Scalia, Kennedy, Thomas, and Alito. Concurring: Thomas. Concurring in part: Kennedy. Dissent: Stevens, Souter, Ginsburg and Breyer.]
Chief Justice Roberts announced the judgment of the Court, and delivered the opinion of the Court with respect to Parts I, II, III-A, and III-C, and an opinion with respect to Parts III-B and IV, in which Justices Scalia, Thomas, and Alito joined.
The school districts in these cases voluntarily adopted student assignment plans that rely upon race to determine which public schools certain children may attend. The Seattle school district classifies children as white or nonwhite; the Jefferson County school district as black or “other.” In Seattle, this racial classification is used to allocate slots in oversubscribed high schools. In Jefferson County, it is used to make certain elementary school assignments and to rule on transfer requests. In each case, the school district relies upon an individual student’s race in assigning that student to a particular school, so that the racial balance at the school falls within a predetermined range based on the racial composition of the school district as a whole. Parents of students denied assignment to particular schools under these plans solely because of their race brought suit, contending that allocating children to different public schools on the basis of race violated the 14th Amendment guarantee of equal protection. The Courts of Appeals below upheld the plans. We granted certiorari, and now reverse. . . .
III-A. 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. . . . 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 (2003). In order to satisfy this searching standard of review, the school districts must demonstrate that the use of individual racial classifications in the assignment plans here under review is “narrowly tailored” to achieve a “compelling” government interest. Adarand [Constructors, Inc. v. Pena (1995)].
Without attempting in these cases to set forth all the interests a school district might assert, it suffices to note that our prior cases, in evaluating the use of racial classifications in the school context, have recognized two interests that qualify as compelling. The first is the compelling interest of remedying the effects of past intentional discrimination. See Freeman v. Pitts (1992). [The Court concludes that this particular interest is not present in this case.] . . .
The second government interest we have recognized as compelling for purposes of strict scrutiny is the interest in diversity in higher education upheld in Grutter v. Bollinger (2003). The specific interest found compelling in Grutter was student body diversity “in the context of higher education.” The diversity interest was not focused on race alone but encompassed “all factors that may contribute to student body diversity.” We described the various types of diversity that the law school sought: “[The law school’s] policy makes clear there are many possible bases for diversity admissions, and provides examples of admittees who have lived or traveled widely abroad, are fluent in several languages, have overcome personal adversity and family hardship, have exceptional records of extensive community service, and have had successful careers in other fields.” . . .
The entire gist of the analysis in Grutter was that the admissions program at issue there focused on each applicant as an individual, and not simply as a member of a particular racial group. The classification of applicants by race upheld in Grutter was only as part of a “highly individualized, holistic review.” As the Court explained, “[t]he importance of this individualized consideration in the context of a race-conscious admissions program is paramount.” The point of the narrow tailoring analysis in which the Grutter Court engaged was to ensure that the use of racial classifications was indeed part of a broader assessment of diversity, and not simply an effort to achieve racial balance, which the Court explained would be “patently unconstitutional.”
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;” race, for some students, is determinative standing alone. The districts argue that other factors, such as student preferences, affect assignment decisions under their plans, but under each plan when race comes into play, it is decisive by itself. It is not simply one factor weighed with others in reaching a decision, as in Grutter; it is the factor. Like the University of Michigan undergraduate plan struck down in Gratz, the plans here “do not provide for a meaningful individualized review of applicants” but instead rely on racial classifications in a “nonindividualized, mechanical” way.
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. . . . [U]nder 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. It is hard to understand how a plan that could allow these results can be viewed as being concerned with achieving enrollment that is “‘broadly diverse.'” . . .
In upholding the admissions plan in Grutter, though, this Court relied upon considerations unique to institutions of higher education, noting that in light of “the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.” See also [Regents of Univ. of Cal. v.] Bakke (1978) (opinion of Powell, J.). The Court explained that “[c]ontext matters” in applying strict scrutiny, and repeatedly noted that it was addressing the use of race “in the context of higher education.” The Court in Grutter expressly articulated key limitations on its holding — defining a specific type of broad-based diversity and noting the unique context of higher education — but these limitations were largely disregarded by the lower courts in extending Grutter to uphold race-based assignments in elementary and secondary schools. The present cases are not governed by Grutter.
III-B. [Justice Kennedy does not join this section of the opinion.]
Perhaps recognizing that reliance on Grutter cannot sustain their plans, both school districts assert additional interests, distinct from the interest upheld in Grutter, to justify their race-based assignments. In briefing and argument before this Court, Seattle contends that its use of race helps to reduce racial concentration in schools and to ensure that racially concentrated housing patterns do not prevent nonwhite students from having access to the most desirable schools. Jefferson County has articulated a similar goal, phrasing its interest in terms of educating its students “in a racially integrated environment. Each school district argues that educational and broader socialization benefits flow from a racially diverse learning environment, and each contends that because the diversity they seek is racial diversity — not the broader diversity at issue in Grutter — it makes sense to promote that interest directly by relying on race alone. . . .
The plans are tied to each district’s specific racial demographics, rather than to any pedagogic concept of the level of diversity needed to obtain the asserted educational benefits. In Seattle, the district seeks white enrollment of between 31 and 51 percent (within 10 percent of “the district white average” of 41 percent), and nonwhite enrollment of between 49 and 69 percent (within 10 percent of “the district minority average” of 59 percent). In Jefferson County, by contrast, the district seeks black enrollment of no less than 15 or more than 50 percent, a range designed to be “equally above and below Black student enrollment systemwide,” based on the objective of achieving at “all schools . . . an African-American enrollment equivalent to the average district-wide African-American enrollment” of 34 percent. In Seattle, then, the benefits of racial diversity require enrollment of at least 31 percent white students; in Jefferson County, at least 50 percent. There must be at least 15 percent nonwhite students under Jefferson County’s plan; in Seattle, more than three times that figure. This comparison makes clear that the racial demographics in each district — whatever they happen to be — drive the required “diversity” numbers. The plans here are not tailored to achieving a degree of diversity necessary to realize the asserted educational benefits; instead the plans are tailored, in the words of Seattle’s Manager of Enrollment Planning, Technical Support, and Demographics, to “the goal established by the school board of attaining a level of diversity within the schools that approximates the district’s overall demographics.”
The districts offer no evidence that the level of racial diversity necessary to achieve the asserted educational benefits happens to coincide with the racial demographics of the respective school districts — or rather the white/nonwhite or black/”other” balance of the districts, since that is the only diversity addressed by the plans. . . .
In Grutter, the number of minority students the school sought to admit was an undefined “meaningful number” necessary to achieve a genuinely diverse student body. Although the matter was the subject of disagreement on the Court, the majority concluded that the law school did not count back from its applicant pool to arrive at the “meaningful number” it regarded as necessary to diversify its student body. Here the racial balance the districts seek is a defined range set solely by reference to the demographics of the respective school districts.
This working backward to achieve a particular type of racial balance, rather than working forward from some demonstration of the level of diversity that provides the purported benefits, is a fatal flaw under our existing precedent. We have many times over reaffirmed that “[r]acial balance is not to be achieved for its own sake.” Freeman [v. Pitts (1992)]. See also Richmond v. J. A. Croson Co., (1989); Bakke (opinion of Powell, J.) (“If petitioner’s purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected . . . as facially invalid”). Grutter itself reiterated that “outright racial balancing” is “patently unconstitutional.”
Accepting racial balancing as a compelling state interest would justify the imposition of racial proportionality throughout American society, contrary to our repeated recognition that “[a]t the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.” Miller v. Johnson (1995). 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.” Croson (plurality opinion of O’Connor, J.). . . .
The principle that racial balancing is not permitted is one of substance, not semantics. Racial balancing is not transformed from “patently unconstitutional” to a compelling state interest simply by relabeling it “racial diversity.” While the school districts use various verbal formulations to describe the interest they seek to promote — racial diversity, avoidance of racial isolation, racial integration — they offer no definition of the interest that suggests it differs from racial balance. . . .
III-C. The districts assert, as they must, that the way in which they have employed individual racial classifications is necessary to achieve their stated ends. The minimal effect these classifications have on student assignments, however, suggests that other means would be effective. Seattle’s racial tiebreaker results, in the end, only in shifting a small number of students between schools. Approximately 307 student assignments were affected by the racial tiebreaker in 2000–2001; the district was able to track the enrollment status of 293 of these students. Of these, 209 were assigned to a school that was one of their choices, 87 of whom were assigned to the same school to which they would have been assigned without the racial tiebreaker. Eighty-four students were assigned to schools that they did not list as a choice, but 29 of those students would have been assigned to their respective school without the racial tiebreaker, and 3 were able to attend one of the oversubscribed schools due to waitlist and capacity adjustments. In over one-third of the assignments affected by the racial tiebreaker, then, the use of race in the end made no difference, and the district could identify only 52 students who were ultimately affected adversely by the racial tiebreaker in that it resulted in assignment to a school they had not listed as a preference and to which they would not otherwise have been assigned. . . .
Similarly, Jefferson County’s use of racial classifications has only a minimal effect on the assignment of students. Elementary school students are assigned to their first- or second-choice school 95 percent of the time, and transfers, which account for roughly 5 percent of assignments, are only denied 35 percent of the time. . . .
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. In Grutter, the consideration of race was viewed as indispensable in more than tripling minority representation at the law school — from 4 to 14.5 percent. Here the most Jefferson County itself claims is that “because the guidelines provide a firm definition of the Board’s goal of racially integrated schools, they ‘provide administrators with the authority to facilitate, negotiate and collaborate with principals and staff to maintain schools within the 15–50% range.'” Classifying and assigning schoolchildren according to a binary conception of race is an extreme approach in light of our precedents and our Nation’s history of using race in public schools, and requires more than such an amorphous end to justify it.
The districts have also failed to show that they considered methods other than explicit racial classifications to achieve their stated goals. Narrow tailoring requires “serious, good faith consideration of workable race-neutral alternatives,” Grutter, and yet in Seattle several alternative assignment plans — many of which would not have used express racial classifications — were rejected with little or no consideration. Jefferson County has failed to present any evidence that it considered alternatives, even though the district already claims that its goals are achieved primarily through means other than the racial classifications.
- . . . Justice Breyer’s dissent . . . asserts that these cases are controlled by Grutter, claiming that the existence of a compelling interest in these cases “follows a fortiori” from Grutter, and accusing us of tacitly overruling that case. The dissent overreads Grutter, however, in suggesting that it renders pure racial balancing a constitutionally compelling interest; Grutter itself recognized that using race simply to achieve racial balance would be “patently unconstitutional.” The Court was exceedingly careful in describing the interest furthered in Grutter as “not an interest in simple ethnic diversity” but rather a “far broader array of qualifications and characteristics” in which race was but a single element. We take the Grutter Court at its word. We simply do not understand how Justice Breyer can maintain that classifying every schoolchild as black or white, and using that classification as a determinative factor in assigning children to achieve pure racial balance, can be regarded as “less burdensome, and hence more narrowly tailored” than the consideration of race in Grutter, when the Court in Grutter stated that “[t]he importance of . . . individualized consideration” in the program was “paramount,” and consideration of race was one factor in a “highly individualized, holistic review.” Certainly if the constitutionality of the stark use of race in these cases were as established as the dissent would have it, there would have been no need for the extensive analysis undertaken in Grutter. In light of the foregoing, Justice Breyer’s appeal to stare decisis rings particularly hollow.
At the same time it relies on inapplicable desegregation cases, misstatements of admitted dicta, and other noncontrolling pronouncements, Justice Breyer’s dissent candidly dismisses the significance of this Court’s repeated holdings that all racial classifications must be reviewed under strict scrutiny, arguing that a different standard of review should be applied because the districts use race for beneficent rather than malicious purposes.
This Court has recently reiterated, however, that “‘all racial classifications [imposed by government] . . . must be analyzed by a reviewing court under strict scrutiny.'” Johnson. See also Grutter (“[G]overnmental action based on race — a group classification long recognized as in most circumstances irrelevant and therefore prohibited — should be subjected to detailed judicial inquiry”). . . .
The reasons for rejecting a motives test for racial classifications are clear enough. “The Court’s emphasis on ‘benign racial classifications’ suggests confidence in its ability to distinguish good from harmful governmental uses of racial criteria. History should teach greater humility. . . . ‘[B]enign’ carries with it no independent meaning, but reflects only acceptance of the current generation’s conclusion that a politically acceptable burden, imposed on particular citizens on the basis of race, is reasonable.” Metro Broadcasting [v. FCC (1990)] (O’Connor, J., dissenting). Accepting Justice Breyer’s approach would “do no more than move us from ‘separate but equal’ to ‘unequal but benign.'” Metro Broadcasting (Kennedy, J., dissenting).
Justice Breyer speaks of bringing “the races” together (putting aside the purely black-and-white nature of the plans), as the justification for excluding individuals on the basis of their race. 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. This fundamental principle goes back, in this context, to Brown itself. See Brown v. Board of Education (1955) (Brown II) (“At stake is the personal interest of the plaintiffs in admission to public schools . . . on a nondiscriminatory basis”). . . .
Despite his argument that these cases should be evaluated under a “standard of review that is not ‘strict’ in the traditional sense of that word,” Justice Breyer still purports to apply strict scrutiny to these cases. It is evident, however, that Justice Breyer’s brand of narrow tailoring is quite unlike anything found in our precedents. Without any detailed discussion of the operation of the plans, the students who are affected, or the districts’ failure to consider race-neutral alternatives, the dissent concludes that the districts have shown that these racial classifications are necessary to achieve the districts’ stated goals. This conclusion is divorced from any evaluation of the actual impact of the plans at issue in these cases — other than to note that the plans “often have no effect.” 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 Constitution and our precedents require more.
In keeping with his view that strict scrutiny should not apply, Justice Breyer repeatedly urges deference to local school boards on these issues. Such deference “is fundamentally at odds with our equal protection jurisprudence. We put the burden on state actors to demonstrate that their race-based policies are justified.” Johnson. See Croson (“The history of racial classifications in this country suggests that blind judicial deference to legislative or executive pronouncements of necessity has no place in equal protection analysis”). . . .
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. These other means — e.g., where to construct new schools, how to allocate resources among schools, and which academic offerings to provide to attract students to certain schools — implicate different considerations than the explicit racial classifications at issue in these cases, and we express no opinion on their validity — not even in dicta. Rather, we employ the familiar and well-established analytic approach of strict scrutiny to evaluate the plans at issue today, an approach that in no way warrants the dissent’s cataclysmic concerns. 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 chosen — classifying individual students on the basis of their race and discriminating among them on that basis. . . .
Justice Thomas, concurring.[Omitted.]
Justice Kennedy, concurring in part and concurring in the judgment. . . .
I . . . join Parts I and II of the Court’s opinion. I also join Parts III-A and III-C for reasons provided below. My views do not allow me to join the balance of the opinion by The Chief Justice, which seems to me to be inconsistent in both its approach and its implications with the history, meaning, and reach of the Equal Protection Clause. Justice Breyer’s dissenting opinion, on the other hand, rests on what in my respectful submission is a misuse and mistaken interpretation of our precedents. This leads it to advance propositions that, in my view, are both erroneous and in fundamental conflict with basic equal protection principles. As a consequence, this separate opinion is necessary to set forth my conclusions in the two cases before the Court. . . .
- Our Nation from the inception has sought to preserve and expand the promise of liberty and equality on which it was founded. Today we enjoy a society that is remarkable in its openness and opportunity. Yet our tradition is to go beyond present achievements, however significant, and to recognize and confront the flaws and injustices that remain. This is especially true when we seek assurance that opportunity is not denied on account of race. The enduring hope is that race should not matter; the reality is that too often it does.
This is by way of preface to my respectful submission that parts of the opinion by The Chief Justice imply an all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account. The plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race. The plurality’s postulate that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race” is not sufficient to decide these cases. Fifty years of experience since Brown v. Board of Education (1954) should teach us that the problem before us defies so easy a solution. School districts can seek to reach Brown‘s objective of equal educational opportunity. The plurality opinion is at least open to the interpretation that the Constitution requires school districts to ignore the problem of de facto resegregation in schooling. I cannot endorse that conclusion. 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. . . .
In the administration of public schools by the state and local authorities it is permissible to consider the racial makeup of schools and to adopt general policies to encourage a diverse student body, one aspect of which is its racial composition. Cf. Grutter v. Bollinger (2003). If school authorities are concerned that the student-body compositions of certain schools interfere with the objective of offering an equal educational opportunity to all of their students, they are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion solely on the basis of a systematic, individual typing by race.
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. These mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible. See Bush v. Vera (1996) (plurality opinion) (“Strict scrutiny does not apply merely because redistricting is performed with consciousness of race. . . . 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 Constructors, Inc., v. Pena (1995)). 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. 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. . . .
III-C. The dissent refers to an opinion filed by Judge Kozinski in one of the cases now before us, and that opinion relied upon an opinion filed by Chief Judge Boudin in a case presenting an issue similar to the one here. Though this may oversimplify the matter a bit, one of the main concerns underlying those opinions was this: If it is legitimate for school authorities to work to avoid racial isolation in their schools, must they do so only by indirection and general policies? Does the Constitution mandate this inefficient result? Why may the authorities not recognize the problem in candid fashion and solve it altogether through resort to direct assignments based on student racial classifications? So, the argument proceeds, if race is the problem, then perhaps race is the solution.
The argument ignores the dangers presented by individual classifications, dangers that are not as pressing when the same ends are achieved by more indirect means. When the government classifies an individual by race, it must first define what it means to be of a race. Who exactly is white and who is nonwhite? To be forced to live under a state-mandated racial label is inconsistent with the dignity of individuals in our society. And it is a label that an individual is powerless to change. Governmental classifications that command people to march in different directions based on racial typologies can cause a new divisiveness. 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. On the other hand race-conscious measures that do not rely on differential treatment based on individual classifications present these problems to a lesser degree.
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. And if this is a frustrating duality of the Equal Protection Clause it simply reflects the duality of our history and our attempts to promote freedom in a world that sometimes seems set against it. Under our Constitution the individual, child or adult, can find his own identity, can define her own persona, without state intervention that classifies on the basis of his race or the color of her skin.
This Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children. A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue. Likewise, a district may consider it a compelling interest to achieve a diverse student population. Race may be one component of that diversity, but other demographic factors, plus special talents and needs, should also be considered. 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. Crude measures of this sort threaten to reduce children to racial chits valued and traded according to one school’s supply and another’s demand.
That statement, to be sure, invites this response: A sense of stigma may already become the fate of those separated out by circumstances beyond their immediate control. But to this the replication must be: Even so, measures other than differential treatment based on racial typing of individuals first must be exhausted.
The decision today should not prevent school districts from continuing the important work of bringing together students of different racial, ethnic, and economic backgrounds. Due to a variety of factors — some influenced by government, some not — neighborhoods in our communities do not reflect the diversity of our Nation as a whole. Those entrusted with directing our public schools can bring to bear the creativity of experts, parents, administrators, and other concerned citizens to find a way to achieve the compelling interests they face without resorting to widespread governmental allocation of benefits and burdens on the basis of racial classifications.
With this explanation I concur in the judgment of the Court.
Justice Stevens, dissenting.
[Justice Stevens called it a “cruel irony” that Chief Justice Roberts cited Brown v. Board of Education (1954) as support for overturning the Seattle plan. After discussing various cases in the 1960’s and 1970’s that had interpreted the remedial mandate of Brown very expansively, Justice Stevens concluded:] The Court has changed significantly since it decided School Comm. of Boston v. Board of Education in 1968. It was then more faithful to Brown and more respectful of our precedent than it is today. It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision. [That Court included Burger, C.J., and Douglas, Brennan, Stewart, White, Marshall, Blackmun, Powell, and Rehnquist, J.J.]
Justice Breyer, with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, dissenting.
These cases consider the longstanding efforts of two local school boards to integrate their public schools. The school board plans before us resemble many others adopted in the last 50 years by primary and secondary schools throughout the Nation. All of those plans represent local efforts to bring about the kind of racially integrated education that Brown v. Board of Education (1954), long ago promised-efforts that this Court has repeatedly required, permitted, and encouraged local authorities to undertake. This Court has recognized that the public interests at stake in such cases are “compelling.” We have approved of “narrowly tailored” plans that are no less race-conscious than the plans before us. And we have understood that the Constitution permits local communities to adopt desegregation plans even where it does not require them to do so. . . .
- A longstanding and unbroken line of legal authority tells us that the Equal Protection Clause permits local school boards to use race-conscious criteria to achieve positive race-related goals, even when the Constitution does not compel it. Because of its importance, I shall repeat what this Court said about the matter in Swann v. Charlotte-Mecklenburg Board of Education (1971). Chief Justice Burger, on behalf of a unanimous Court in a case of exceptional importance, wrote: “School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities.” . . .
Thus, in North Carolina Bd. of Ed. v. Swann (1971), this Court, citing Swann, restated the point. “[S]chool authorities,” the Court said, “have wide discretion in formulating school policy, and . . . as a matter of educational policy school authorities may well conclude that some kind of racial balance in the schools is desirable quite apart from any constitutional requirements.” Then-Justice Rehnquist echoed this view in Bustop, Inc. v. Los Angeles Bd. of Ed. (1978) (opinion in chambers), making clear that he too believed that Swann‘s statement reflected settled law: “While I have the gravest doubts that [a state supreme court] was required by the United States Constitution to take the [desegregation] action that it has taken in this case, I have very little doubt that it was permitted by that Constitution to take such action.”
These statements nowhere suggest that this freedom is limited to school districts where court-ordered desegregation measures are also in effect. Indeed, in McDaniel v. Barresi (1971), a case decided the same day as Swann, a group of parents challenged a race-conscious student assignment plan that the Clarke County School Board had voluntarily adopted as a remedy without a court order (though under federal agency pressure — pressure Seattle also encountered). 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. This Court upheld the plan, see McDaniel, rejecting the parents’ argument that “a person may not be included or excluded solely because he is a Negro or because he is white.” . . .
Swann is predicated upon a well-established legal view of the 14th Amendment. That view understands the basic objective of those who wrote the Equal Protection Clause as forbidding practices that lead to racial exclusion. The Amendment sought to bring into American society as full members those whom the Nation had previously held in slavery. See Slaughter-House Cases, (1872) (“[N]o one can fail to be impressed with the one pervading purpose found in [all the Reconstruction amendments] . . . we mean the freedom of the slave race”); Strauder v. West Virginia (1879) (“[The 14th Amendment] is one of a series of constitutional provisions having a common purpose; namely, securing to a race recently emancipated . . . all the civil rights that the superior race enjoy”).
There is reason to believe that those who drafted an Amendment with this basic purpose in mind would have understood the legal and practical difference between the use of race-conscious criteria in defiance of that purpose, namely to keep the races apart, and the use of race-conscious criteria to further that purpose, namely to bring the races together. Although the Constitution almost always forbids the former, it is significantly more lenient in respect to the latter. . . .
What does the plurality say in response? First, it seeks to distinguish Swann and other similar cases on the ground that those cases involved remedial plans in response to judicial findings of de jure segregation. . . . [T]hat is historically untrue. Many school districts in the South adopted segregation remedies (to which Swann clearly applies) without any such federal order. Seattle’s circumstances are not meaningfully different from those in, say, McDaniel, where this Court approved race-conscious remedies. . . .
Second, the plurality downplays the importance of Swann and related cases by frequently describing their relevant statements as “dicta.” These criticisms, however, miss the main point. Swann did not hide its understanding of the law in a corner of an obscure opinion or in a footnote, unread but by experts. It set forth its view prominently in an important opinion joined by all nine Justices, knowing that it would be read and followed throughout the Nation. . . . The constitutional principle enunciated in Swann, reiterated in subsequent cases, and relied upon over many years, provides, and has widely been thought to provide, authoritative legal guidance. And if the plurality now chooses to reject that principle, it cannot adequately justify its retreat simply by affixing the label “dicta” to reasoning with which it disagrees. 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.
Third, a more important response is the plurality’s claim that later cases-in particular Johnson, Adarand, and Grutter-supplanted Swann. . . . The plurality says that cases such as Swann and the others I have described all “were decided before this Court definitively determined that ‘all racial classifications . . . must be analyzed by a reviewing court under strict scrutiny.'” (quoting Adarand). This Court in Adarand added that “such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.” And the Court repeated this same statement in Grutter.
Several of these cases were significantly more restrictive than Swann in respect to the degree of leniency the 14th Amendment grants to programs designed to include people of all races. See, e.g., Adarand; Gratz; Grutter. But that legal circumstance cannot make a critical difference here for two separate reasons.
First, no case — not Adarand, Gratz, Grutter, or any other — has ever held that the test of “strict scrutiny” means that all racial classifications — no matter whether they seek to include or exclude — must in practice be treated the same. The Court did not say in Adarand or in Johnson or in Grutter that it was overturning Swann or its central constitutional principle. . . .
The Court in Grutter [stated]: “Strict scrutiny is not ‘strict in theory, but fatal in fact.’. . . Although all governmental uses of race are subject to strict scrutiny, not all are invalidated by it. . . . Context matters when reviewing race-based governmental action under the Equal Protection Clause. . . . Not every decision influenced by race is equally objectionable, and strict scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the reasons advanced by the governmental decisionmaker for the use of race in that particular context.”
The Court’s holding in Grutter demonstrates that the Court meant what it said, for the Court upheld an elite law school’s race-conscious admissions program.
The upshot is that the cases to which the plurality refers, though all applying strict scrutiny, do not treat exclusive and inclusive uses the same. 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. . . .
Today’s opinion reveals that the plurality would rewrite this Court’s prior jurisprudence, at least in practical application, transforming the “strict scrutiny” test into a rule that is fatal in fact across the board. In doing so, the plurality parts company from this Court’s prior cases, and it takes from local government the longstanding legal right to use race-conscious criteria for inclusive purposes in limited ways.
Second, as Grutter specified, “[c]ontext matters when reviewing race-based governmental action under the Equal Protection Clause.” And contexts differ dramatically one from the other. Governmental use of race-based criteria can arise in the context of, for example, census forms, research expenditures for diseases, assignments of police officers patrolling predominantly minority-race neighborhoods, efforts to desegregate racially segregated schools, policies that favor minorities when distributing goods or services in short supply, actions that create majority-minority electoral districts, peremptory strikes that remove potential jurors on the basis of race, and others. Given the significant differences among these contexts, it would be surprising if the law required an identically strict legal test for evaluating the constitutionality of race-based criteria as to each of them. . . .
This context is not a context that involves the use of race to decide who will receive goods or services that are normally distributed on the basis of merit and which are in short supply. . . . [F]or they are not magnet schools; rather, by design and in practice, they offer substantially equivalent academic programs and electives. . . . In a word, the school plans under review do not involve the kind of race-based harm that has led this Court, in other contexts, to find the use of race-conscious criteria unconstitutional. . . .
I believe that the law requires application here of a standard of review that is not “strict” in the traditional sense of that word, although it does require the careful review I have just described. . . .
Nonetheless, in light of Grutter and other precedents, I shall apply the version of strict scrutiny that those cases embody. I shall consequently ask whether the school boards in Seattle and Louisville adopted these plans to serve a “compelling governmental interest” and, if so, whether the plans are “narrowly tailored” to achieve that interest. If the plans survive this strict review, they would survive less exacting review a fortiori. Hence, I conclude that the plans before us pass both parts of the strict scrutiny test. Consequently I must conclude that the plans here are permitted under the Constitution.
III-A. Compelling Interest
The principal interest advanced in these cases to justify the use of race-based criteria goes by various names. Sometimes a court refers to it as an interest in achieving racial “diversity.” Other times a court, like the plurality here, refers to it as an interest in racial “balancing.” I have used more general terms to signify that interest, describing it, for example, as an interest in promoting or preserving greater racial “integration” of public schools. 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 district’s schools and each individual student’s public school experience. . . .
In light of this Court’s conclusions in Grutter, the “compelling” nature of these interests in the context of primary and secondary public education follows here a fortiori. Primary and secondary schools are where the education of this Nation’s children begins, where each of us begins to absorb those values we carry with us to the end of our days. . . .
The compelling interest at issue here, then, includes an effort to eradicate the remnants, not of general “societal discrimination,” . . . but of primary and secondary school segregation . . . ; 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. If an educational interest that combines these three elements is not “compelling,” what is? . . .
III-B. Narrow Tailoring
I next ask whether the plans before us are “narrowly tailored” to achieve these “compelling” objectives. I shall not accept the school board’s assurances on faith, cf. Miller v. Johnson, and I shall subject the “tailoring” of their plans to “rigorous judicial review.” 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.
First, the race-conscious criteria at issue only help set the outer bounds of broad ranges. They constitute but one part of plans that depend primarily upon other, nonracial elements. To use race in this way is not to set a forbidden “quota.”
Indeed, the race-conscious ranges at issue in these cases often have no effect, either because the particular school is not oversubscribed in the year in question, or because the racial makeup of the school falls within the broad range, or because the student is a transfer applicant or has a sibling at the school. In these respects, the broad ranges are less like a quota and more like the kinds of “useful starting points” that this Court has consistently found permissible, even when they set boundaries upon voluntary transfers, and even when they are based upon a community’s general population. . . .
Second, broad-range limits on voluntary school choice plans are less burdensome, and hence more narrowly tailored, than other race-conscious restrictions this Court has previously approved. Indeed, the plans before us are more narrowly tailored than the race-conscious admission plans that this Court approved in Grutter. Here, race becomes a factor only in a fraction of students’ non-merit-based assignments — not in large numbers of students’ merit-based applications. Moreover, the effect of applying race-conscious criteria here affects potentially disadvantaged students less severely, not more severely, than the criteria at issue in Grutter. Disappointed students are not rejected from a State’s flagship graduate program; they simply attend a different one of the district’s many public schools, which in aspiration and in fact are substantially equal. . . . One will search Grutter in vain for similarly persuasive evidence of narrow tailoring as the school districts have presented here.
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. Each plan embodies the results of local experience and community consultation. Each plan is the product of a process that has sought to enhance student choice, while diminishing the need for mandatory busing. And each plan’s use of race-conscious elements is diminished compared to the use of race in preceding integration plans. . . .
Moreover, giving some degree of weight to a local school board’s knowledge, expertise, and concerns in these particular matters is not inconsistent with rigorous judicial scrutiny. It simply recognizes that judges are not well suited to act as school administrators. Indeed, in the context of school desegregation, this Court has repeatedly stressed the importance of acknowledging that local school boards better understand their own communities and have a better knowledge of what in practice will best meet the educational needs of their pupils. . . .
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. The plurality refers to no case in support of its demand. Nor is it likely to find such a case. After all, this Court has in many cases explicitly permitted districts to use target ratios based upon the district’s underlying population. See, e.g., Swann. . . .
The Founders meant the Constitution as a practical document that would transmit its basic values to future generations through principles that remained workable over time. Hence it is important to consider the potential consequences of the plurality’s approach, as measured against the Constitution’s objectives. To do so provides further reason to believe that the plurality’s approach is legally unsound. . . .
The districts’ past and current plans are not unique. They resemble other plans, promulgated by hundreds of local school boards, which have attempted a variety of desegregation methods that have evolved over time in light of experience. . . . [Justice Marshall notes various previously approved school district practices and state statutes that involve some degree of race consciousness.]
At a minimum, the plurality’s views would threaten a surge of race-based litigation. Hundreds of state and federal statutes and regulations use racial classifications for educational or other purposes. In many such instances, the contentious force of legal challenges to these classifications, meritorious or not, would displace earlier calm. . . .