06AppsChoicesBoardApril2005final.pdf. In Parents Involved in Community Schools v. Seattle School District No.1 (2007), the Supreme Court ruled that O public school policies that assigned students to a school on the basis of race were constitutional. In the context of public schooling, segregation is the deliberate operation of a school system to carry out a governmental policy to separate pupils in schools solely on the basis of race. Swann v. Charlotte-Mecklenburg Bd. 420, 433434 (1988). This case is the last of a trilogy of cases against Jefferson County Public Schools (JCPS), including McFarland v. Jefferson County Public Schools,[8] and their use of race in assigning students to schools. 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 Seattles Manager of Enrollment Planning, Technical Support, and Demographics, to the goal established by the school board of attain-ing a level of diversity within the schools that approximates the districts overall demographics. App. Before the merits of the case can be addressed, the Court first has to address the Districts jurisdictional challenge that no case or controversy exists within the Constitutional sense of those terms. Rather, the Constitution creates a democratic political system through which the people themselves must together find answers. 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. Justice Breyers reliance on McDaniel v. Barresi, 402 U. S. 39 (1971), post, at 2324, 2930, highlights how far removed the discussion in the dissent is from the question actually presented in these cases. schoolId=1043&reportLevel=School&orgLinkId=1043& 2 App. At the state level, 46 States and Puerto Rico have adopted policies that encourage or require local school districts to enact interdistrict or intradistrict open choice plans. There is ample precedent in the decisions of this Court to uphold school segregation); Brief for Petitioners in Gebhart v. Belton, O.T. 1952, No. [14], Neither school could plead this compelling interest, because "[w]e have emphasized that the harm being remedied by mandatory desegregation plans is the harm that is traceable to segregation, and that 'the Constitution is not violated by racial imbalance in the schools, without more. The plans under reviewwhich are less burdensome, more egalitarian, and more effective than prior planscontinue in that tradition. Respondent school districts voluntarily adopted student assignment plans that rely on race to determine which schools certain children may attend. If the dissent were to say that college cases are simply not applicable to public school systems in kindergarten through high school, this would seem to me wrong, but at least an arguable distinction. denied, 389 U. S. 847 (1967); Springfield School Comm. The district, nevertheless, has failed to make an adequate showing in at least one respect. Public School Dist., p.2 (Aug. 6, 1996) (1996 Memorandum). Other studies have found that both black and white students who attend integrated schools are more likely to work in desegregated companies after graduation than students who attended racially isolated schools. McDonald v. Chicago 1099&OrgType=4&reportLevel=School; http://reportcard.ospi.k12.wa.us/ Segregation at the time of Brown gave way to expansive remedies that included busing, which in turn gave rise to fears of white flight and resegregation. Id., at 462. See also, e.g., Darville v. Dade County School Bd., 497 F.2d 1002, 10041006 (CA5 1974); State ex rel. 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. Jefferson County fails to make clear to this Courteven in the limited respects implicated by Joshuas initial assignment and transfer denialwhether in fact it relies on racial classifications in a manner narrowly tailored to the interest in question, rather than in the far-reaching, inconsistent, and adhoc manner that a less forgiving reading of the record would suggest. At that time, about 20% or 12,000 of the districts students were black. We relied on the fact that this Court had not once but seven times, I think it is, pronounced in favor of the separate but equal doctrine. On what legal ground can the majority rest its contrary view? ); internal quotation marks omitted). Narrow tailoring requires "serious, good faith consideration of workable race-neutral alternatives", Grutter, supra, at 339, 123 S. Ct. 2325, 156 L. Ed. Compare Croson, 488 U. S., at 519 (Kennedy, J., concurring in part and concurring in judgment) (racial classifications permitted only as a last resort). 6, 39 Ill. 2d 593, 237 N.E. 2d 498 (1968). [6] All of the dissenting Justices acknowledged that "the Constitution does not impose a duty to desegregate upon districts" if they have not practiced racial discrimination. The Seattle school board itself must believe that racial mixing is not necessary to black achievement. 1, 127 S. Ct. 2738 (U.S. 2007) Brief Fact Summary. The reason for this omission is clear enough, since the case did not involve any voluntary means adopted by a school district. This Courts opinion in McDaniel v. Barresi, 402 U. S. 39 (1971), fits comfortably within this framework. tion of the races); id., at App. Bd. The issue in Gratz arose, moreover, in the context of college admissions where students had other choices and precedent supported the proposition that First Amendment interests give universities particular latitude in defining diversity. Race-based government measures during the 1860s and 1870s to remedy state-enforced slavery were therefore not inconsistent with the color-blind Constitution. And it ordered the board not to control access to those scarce programs through the use of racial targets. Apparently Justice Kennedy also agrees that strict scrutiny would not apply in respect to certain race-conscious school board policies. As of 2002, almost 2.4 million students, or over 5% of all public school enrollment, attended schools with a white population of less than 1%. This school was 10 miles from home, and Meredith sought to transfer Joshua to a school in a different cluster, Bloom Elementary, whichlike his resides schoolwas only a mile from home. . When the government classifies an individual by race, it must first define what it means to be of a race. Fifty-three of the 125 studied districts used transfers as a component of their plans. These allegations were never proved and were not even made in this case. 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. 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. 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. . in No. Again, data support this insight. If the racial demographics of any school's student body deviated by more than a predetermined number of percentage points from those of Seattle's total student population (approximately 41% white and 59% non-white), the racial tiebreaker went into effect. I next ask whether the plans before us are narrowly tailored to achieve these compelling objectives. The dissent acknowledges that the two-sentence discussion in Swann was pure dicta, post, at 22, but nonetheless asserts that it demonstrates a basic principle of constitutional law that provides authoritative legal guidance. Post, at 22, 30. Second, if the schools racial make-up was more than 15 percent out of line with the overall racial composition of the school district (classified only as white and nonwhite), then the students race was considered. Brief for Petitioner at 38. Indeed, the social scientists brief rather cautiously claims the existence of any benefit at all, describing the positive impact as modest, id., at 13, acknowledging that there appears to be little or no effect on math scores, id., at 14, and admitting that the underlying reasons for these gains in achievement are not entirely clear, id., at 15. 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 bulk of the data in the record was collected using the 10 percent band, see n. 1, supra. 2d 876, 881882, 382 P.2d 878, 881882 (1963) (in bank). Elementary schools in central Seattle were between 60% and 80% black; Garfield, the central district high school, was more than 50% minority; schools outside the central and southeastern sections of Seattle were virtually all white. 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. I am not certain just how the remainder of Justice Kennedys concerns affect the lawfulness of the Louisville program, for they seem to be failures of explanation, not of administration. in No. This is a fatal flaw under the Courts existing precedent. Gen. Acts 552 (2007). of Ed. The dissents appeal to stare decisis, post, at 65, is particularly ironic in light of its apparent willingness to depart from these precedents, post, at 3637. 05915, at 81. See Reply Brief at 3. in Briggs v. Elliott, O. T. 1953, No. Pp. 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. Whats your understanding of when a school suffers from racial isolation? "[11] These plans are more narrowly tailored than the race-conscious law school admissions criteria at issue in Grutter. Any use of race to distinguish one person from another threatens to stigmatize individuals and incite hostility. Is it conceivable that the Constitution, implemented through a court desegregation order, could permit (perhaps require) the district to make use of a race-conscious plan the day before the order was dissolved and then forbid the district to use the identical plan the day after? in Briggs v. Elliott, O.T. 1953, No. The cost of busing, the harm that members of all racial communities feared that the Seattle Plan caused, the desire to attract white families back to the public schools, and the interest in providing greater school choice led the board to abandon busing and to substitute a new student assignment policy that resembles the plan now before us. 2d 304: "[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." 1996). A. Croson Co., 488 U. S. 469 (1989); Shaw v. Reno, 509 U. S. 630 (1993); Adarand Constructors, Inc. v. Peńa, 515 U. S. 200 (1995); Grutter, supra; Gratz v. Bollinger, 539 U. S. 244 (2003); Johnson v. California, 543 U. S. 499 (2005). tutional Provisions in the States Where Segregation in Education is Institutionalized). See, e.g., Yonezawa, Wells, & Serna, Choosing Tracks: Freedom of Choice in Detracting Schools, 39 Am. 1 operates 10 regular public high schools. The Seattle School District allowed students to apply to any high school in the District. 3, p. 76 (As time passes, it may well be that segregation will end), with post, at 19 ([T]hey use race-conscious criteria in limited and gradually diminishing ways); post, at 48 ([E]ach plans use of race-conscious elements is diminished compared to the use of race in preceding integration plans); post, at 55 (describing the historically-diminishing use of race in the school districts). If those students were considered for a whole range of their talents and school needs with race as just one consideration, Grutter would have some application. The District argues that under the Courts jurisprudence, strict scrutiny does not require sacrificing every other goal to that of avoiding the use of race, but that it requires a proper balancing of goals. 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. Part IB, supra. The dissents reliance on this Courts precedents to justify the explicit, sweeping, classwide racial classifications at issue here is a misreading of our authorities that, it appears to me, tends to undermine well-accepted principles needed to guard our freedom. . [Footnote 2] If an oversubscribed school is not within 10 percentage points of the districts overall white/nonwhite racial balance, it is what the district calls integration positive, and the district employs a tiebreaker that selects for assignment students whose race will serve to bring the school into balance. Id., at 38a. Id. The Jefferson County Board of Education fails to meet this threshold mandate. What does the plurality say in response? 233234 (Summer 2001) (describing this effect in schools in Charlotte, North Carolina). 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). In 1977, the NAACP filed another legal complaint, this time with the federal Department of Health, Education, and Welfares Office for Civil Rights (OCR). Thus, only by ignoring Grutters reasoning can the dissent claim that recognizing a compelling interest in these cases is an a fortiori application of Grutter. 540, 541 (2003) (hereinafter Quillian & Campbell); Dawkins & Braddock, The Continuing Significance of Desegregation: School Racial Composition and African American Inclusion in American Society, 63 J. Negro Ed. in No. With this factual background in mind, I turn to the legal question: Does the United States Constitution prohibit these school boards from using race-conscious criteria in the limited ways at issue here? 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. Narrow tailoring requires serious, good faith consideration of workable race-neutral alternatives, id., at 339, and yet in Seattle several alternative assignment plansmany of which would not have used express racial classificationswere rejected with little or no consideration. in Briggs v. Elliott, O.T. 1952, No. local tax dollars will be spent. Voluntary cessation does not moot a case or controversy unless subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur, Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189 (2000) (quoting United States v. Concentrated Phosphate Export Assn., Inc., 393 U. S. 199, 203 (1968) (internal quotation marks omitted)), a heavy burden that Seattle has clearly not met. of Oral Arg. Most white families live north of the downtown area where four high schools Ballard, Ingraham, Nathan Hale, and Roosevelt are located. Consequently, the present plans expand student choice; they limit the burdens (including busing) that earlier plans had imposed upon students and their families; and they use race-conscious criteria in limited and gradually diminishing ways. In light of the evident risk of a return to school systems that are in fact (though not in law) resegregated, many school districts have felt a need to maintain or to extend their integration efforts. Beyond those minimum requirements, the Court left much of the determination of how to achieve integration to the judgment of local communities. 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. 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. To the contrary, there is every reason to believe that it represented part of an effort to implement the 1978 desegregation order. Subsequent to the District Courts dissolution of the desegregation order (in 2000) the board simply continued to implement its 1996 plan as modified to reflect the courts magnet school determination. It predicts that todays decision threaten[s] the validity of [h]undreds of state and federal statutes and regulations. Post, at 61; see also post, at 2728. Public Schools, 416 F.3d 513 (2005); Memorandum from Stephen W. Daeschner, Superintendent, to the Board of Education, Jefferson Cty. See ante, at 1725. I cannot rely upon Swanns statement that the use of race-conscious limits is permissible without showing, rather than simply asserting, that the statement represents a constitutional principle firmly rooted in federal and state law. 2001) (describing President Nixons lobbying for affirmative action plans, e.g., the Philadelphia Plan); White, Affirmative Actions Alamo: Gerald Ford Returns to Fight Once More for Michigan, Time, Aug. 23, 1999, p. 48 (reporting on President Fords support for affirmative action); Schuck, Affirmative Action: Past, Present, and Future, 20 Yale L. & Poly Rev. 2, 2001). & Rodgers, Coercion to Compliance: Southern School Districts and School Desegregation Guidelines, 38 J. 05908, pp. 5. Jefferson County phrases its interest as racial integration, but integration certainly does not require the sort of racial proportionality reflected in its plan. In particular, they use race-conscious criteria only to mark the outer bounds of broad population-related ranges. See id., at 519 (Kennedy, J., concurring in part and concurring in judgment). We have emphasized that the harm being remedied by mandatory desegregation plans is the harm that is traceable to segregation, and that the Constitution is not violated by racial imbalance in the schools, without more. Milliken v. Bradley, 433 U. S. 267, 280, n.14 (1977). By contrast, Croson notes that racial classifications are permitted only "as a last resort".[30]. See Tr. L. 95561, Tit. See F. Welch & A. There is also evidence that black students attending historically black colleges achieve better academic results than those attending predominantly white colleges. Justice Breyer would not only put such extraordinary weight on admitted dicta, but relies on the statement for something it does not remotely say. 05908, p. 511. To be forced to live under a state-mandated racial label is inconsistent with the dignity of individuals in our society. No one contends that Seattle has established or that Louisville has reestablished a dual school system that separates students on the basis of race. McFarland I, 330 F.Supp. These arguments are inimical to the Constitution and to this Courts precedents. The Grutter Court expressly limited its holdingdefining a specific type of broad-based diversity and noting the unique context of higher educationbut these limitations were largely disregarded by the lower courts in extending Grutter to the sort of classifications at issue here. See Wygant v. Jackson Board of Education, 476 U. S. 267, 274 (1986); Fullilove v. Klutznick, 448 U. S. 448, 507 (1980). Croson, supra, at 505; Wygant, supra, at 279, n.5 (plurality opinion). 05908, at 1920; Brief for Respondents in No. In addition, Meredith sought damages in her complaint, which is sufficient to preserve our ability to consider the question. See also Adarand, supra, at 226 ([I]t may not always be clear that a so-called preference is in fact benign (quoting Bakke, supra, at 298 (opinion of Powell, J.))). 3. Justice Breyers dissent next relies heavily on dicta from Swann v. Charlotte-Mecklenburg Bd. First, no casenot Adarand, Gratz, Grutter, or any otherhas ever held that the test of strict scrutiny means that all racial classificationsno matter whether they seek to include or excludemust in practice be treated the same. of Ed., 439 U. S. 1380, 1383 (1978). 2d 358, 360 (2000). 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 plans 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. 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. No. The school boards widespread consultation, their experimentation with numerous other plans, indeed, the 40-year history that Part I sets forth, make clear that plans that are less explicitly race-based are unlikely to achieve the boards compelling objectives. See ibid. It is not simply one factor weighed with others in reaching a decision, as in Grutter; it is the factor. For schools that never segregated on the basis of race, such as Seattle, or that have removed the vestiges of past segregation, such as Jefferson County, the way to achieve a system of determining admission to the public schools on a nonracial basis, Brown II, 349 U. S., at 300301, is to stop assigning students on a racial basis. Although the District tried to make each high school unique by offering different programs, thus making each desirable, some schools were significantly more popular than others.