v. Detiege, 358 U. S. 54 (1958) (per curiam) (public parks); Gayle v. Browder, 352 U. S. 903 (1956) (per curiam) (buses); Holmes v. Atlanta, 350 U. S. 879 (1955) (per curiam) (golf courses); Mayor of Baltimore v. Dawson, 350 U. S. 877 (1955) (per curiam) (beaches). 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. To Crawford? 05915, p.97. 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. Indeed, the record before us suggests the contrary. Voluntary School Diversity Efforts A decade ago, on June 28, 2007, the United States Supreme Court issued its ruling in Parents Involved in Community Schools v. Seattle School District ("PICS"), the only in No. Hence, their lawfulness follows a fortiori from this Courts prior decisions. 1, https://en.wikipedia.org/w/index.php?title=Parents_Involved_in_Community_Schools_v._Seattle_School_District_No._1&oldid=1137632337. first today in 05-908, Parents Involved in Community Schools versus Seattle School District Number 1. (In my opinion, it is not necessary to find that the Board of Education has been guilty of racial discrimination in the past to support the conclusion that it has a legitimate interest in employing more black teachers in the future). We rely, as did the lower courts, largely on data from the 20002001 school year in evaluating the plan. The dissent again relies upon social science research to support the proposition that state-compelled racial mixing teaches children to accept cooperation and improves racial attitudes and race relations. Public Schools, 330 F.Supp. Lower state and federal courts had considered the matter settled and uncontroversial even before this Court decided Swann. 05908, at 36 (For Seattle, racial balance is clearly not an end in itself but rather a measure of the extent to which the educational goals the plan was designed to foster are likely to be achieved). The plurality pays inadequate attention to this law, to past opinions rationales, their language, and the contexts in which they arise. [Footnote 3] The only justification for refusing to acknowledge the obvious importance of that difference is the citation of a few recent opinionsnone of which even approached unanimitygrandly proclaiming that all racial classifications must be analyzed under strict scrutiny. See, e.g., Adarand Constructors, Inc. v. Peńa, 515 U. S. 200, 227 (1995). See generally N. Thompson & C. Marr, Building for Learning: Seattle Public Schools Histories, 18622000 (2002). Even apart from Grutter, five Members of this Court agree that avoiding racial isolation and achiev[ing] a diverse student population remain today compelling interests. See, e.g., D. Armor, Forced Justice (1995). In such cases, race-based remedial measures are sometimes required. The dissent points to data that indicate that black and white students in desegregated schools are less racially prejudiced than those in segregated schools. Post, at 40 (internal quotation marks omitted). 294 F.3d 1085 (9th Cir. 05915, at 43 (Transfer applications can be denied because of lack of available space or, for students in grades other than Primary 1 (kindergarten), the racial guidelines in the Districts current student assignment plan); id., at 29 (The student assignment plan does not apply to . 61, 39 Ill. 2d 593, 596598, 237 N.E. 2d 498, 500502 (1968), an Illinois decision, as evidence that state and federal courts had considered the matter settled and uncontroversial. Post, at 25. No. Disfavoring a color-blind interpretation of the Constitution, the dissent would give school boards a free hand to make decisions on the basis of racean approach reminiscent of that advocated by the segregationists in Brown v. Board of Education, 347 U. S.483 (1954). This plan labeled racially imbalanced any school at which the percentage of black students exceeded by more than 20% the minority population of the school district as a whole. 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)). 3313.98(B)(2)(b)(iii) (Lexis Supp. In a typical year, say, 1995, about 20,000 potential high school students participated. To McDaniel? Banks & C. Banks eds. But the district vigorously defends the constitutionality of its race-based program, and nowhere suggests that if this litigation is resolved in its favor it will not resume using race to assign students. 1" (2007) and "Meredith v. Jefferson County Board of Education" (2007), the high court forbade those . ject.harvard.edu/research/deseg/Racial_Transformation.pdf. 458 U. S., at 535, n.11. While the government is not required to take race into account to address problems arising from racial discrimination, it is constitutionally permitted to do so. 05915, at 410. Overall these efforts brought about considerable racial integration. The Current Plan: Project Renaissance Modified, 1996 to 2003. See ante, at 9 (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). Id., at 38a. . Justice Kennedy sets forth two additional concerns related to narrow tailoring. In respect to Louisville, he says first that officials stated (1) that kindergarten assignments are not subject to the race-conscious guidelines, and (2) that the child at issue here was denied permission to attend the kindergarten he wanted because of those guidelines. Even as 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. And individual racial classifications employed in this manner may be considered legitimate only if they are a last resort to achieve a compelling interest. Indeed, the very school districts that once spurned integration now strive for it. Compare Brief for Appellees in Davis v. County School Board, O.T. 1952, No. App. 2d 834, 839840, and n. 6 (WD Ky. 2004) (McFarland I). Neither can assign to the other all responsibility for persisting injustices. This Court in Adarand added that such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests. Ibid. See supra, at 1214. The orders requirements reflected a (newly enlarged) school district student population of about 135,000, approximately 20% of whom were black. 5, p.27 (Respondents ask this Court to upset a long established and well settled principle recognized by numerous state Legislatures, and Courts, both state and federal, over a long period of years); Tr. In many such instances, the contentious force of legal challenges to these classifications, meritorious or not, would displace earlier calm); post, at 65 (Indeed, the consequences of the approach the Court takes today are serious. The minimal effect these classifications have on student assignments, however, suggests that other means would be effective. 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. Id., at 276, 280 (OConnor, J., concurring). See Freeman v. Pitts, 503 U. S. 467, 494 (1992). 05908, at1617. The conclusions he has set forth in Part IIIA of the Courts opinion are correct, in my view, because the compelling interests implicated in the cases before us are distinct from the interests the Court has recognized in remedying the effects of past intentional discrimination and in increasing diversity in higher education. The opinion of the Court and Justice Breyers dissenting opinion (hereinafter dissent) describe in detail the history of integration efforts in Louisville and Seattle. And the design of particular plans has been dictated by both the law and the specific needs of the district. Ibid. . Prior to Grutter, the courts of appeals rejected as unconstitutional attempts to implement race-based assignment planssuch as the plans at issue herein primary and secondary schools. Numerical racial balance in a district's schools is far from a compelling interest, and in fact it is not even a legitimate purpose. See Brief for Respondents in No. in No. Past wrongs to the black race, wrongs committed by the State and in its name, are a stubborn fact of history. See also Bakke, 438 U. S., at 289291 (opinion of Powell, J.) 1725, 2841. That is a gamble I am unwilling to take, and it is one the Constitution does not allow. 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. 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. at 1171. In light of this Courts conclusions in Grutter, the compelling nature of these interests in the context of primary and secondary public education follows here a fortiori. Seattle School District No. Segregation, 1945 to 1956. 149 through 154 (Dec. 8, 2003). The panel determined that while achieving racial diversity and avoiding racial isolation are compelling government interests, id., at 964, Seattles use of the racial tiebreaker was not narrowly tailored to achieve these interests, id., at 980. Here Roberts provides the following string citation: quoting Gratz v. Bollinger, 539 U.S. 244, 270, 123 S. Ct. 2411, 156 L. Ed. The Seattle district, which has never operated legally segregated schools or been subject to court-ordered desegregation, classified children as white or nonwhite, and used the racial classifications as a tiebreaker to allocate slots in particular high schools. In the year 20052006, by which time the racial tiebreaker had not been used for several years, Franklins overall minority enrollment had risen to 90%. McDaniel concerned a Georgia school system that had been segregated by law. Id. See also Brief for Appellees in Brown v. Board of Education, O.T. 1952, No. In order for its plan to be constitutional under strict scrutiny, the School District must show its use of race in the admission process was furthering a compelling government interest (compelling interest) and that the School District plan was the narrowest possible use of race that could achieve this interest (narrowly tailored). 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). Likewise, a district may consider it a compelling interest to achieve a diverse student population. Four basic considerations have led me to this view. 4, pp. School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles). I describe those histories at length in order to highlight three important features of these cases. And, in Seattle, the disadvantaged student loses at most one year at the high school of his choice. One conference participant described white privilege as an invisible package of unearned assets which I can count on cashing in each day, but about which I was meant to remain oblivious. 69. Most worked at unskilled jobs. of Average Black Student. 935, 937 (1989) (calling Brown the Supreme Courts greatest anti-discrimination decision); Brief for United States as Amicus Curiae in Brown, 347 U. S. 483; Dudziak, Brown as a Cold War Case, 91 J. Again, data support this insight. 36, 7172 (1873)). See Gratz v. Bollinger, 539 U. S. 244, 275. Most are not. 2002); Brief for Armor etal. The District argues that its use of race in high school admissions serves three compelling government interests: (1) the educational benefits of a diverse student body; (2) the reduction of racial isolation and de facto segregation; and (3) providing equality of opportunity to all students. 2, p.7 (Local self-government in local affairs is essential to the peace and happiness of each locality and to the strength and stability of our whole federal system. Written and curated by real attorneys at Quimbee. Racial imbalance is not segregation. See McDaniel, supra, at 41. This approach is just as wrong today as it was a half-century ago. And contexts differ dramatically one from the other. 2002). "[5] He went on to say, "What the government is not permitted to do, absent a showing of necessity not made here, is to classify every student on the basis of race and to assign each of them to schools based on that classification. 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. The Court should leave them to their work. "But the district vigorously defends the constitutionality of its race-based program, and nowhere suggests that if this litigation is resolved in its favor it will not resume using race to assign students. in No. 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. 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. 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. See, e.g., Brief for Appellees on Reargument in Briggs v. Elliott, O.T. 1953, No. Consequently, school boards seeking to remedy those societal problems with race-based measures in schools today would have no way to gauge the proper scope of the remedy. The basic problem with the pluralitys technical dicta-based response lies in its overly theoretical approach to case law, an approach that emphasizes rigid distinctions between holdings and dicta in a way that serves to mask the radical nature of todays decision. Unlike the dissenters, I am unwilling to delegate my constitutional responsibilities to local school boards and allow them to experiment with race-based decisionmaking on the assumption that their intentions will forever remain as good as Justice Breyers. That plan, which took effect before 1996, is the very plan that in all relevant respects is in effect now and is the subject of the present challenge. 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. In dozens of subsequent cases, this Court told school districts previously segregated by law what they must do at a minimum to comply with Browns constitutional holding. Nevertheless, Kennedy found the school districts did not narrowly tailor the use of race to achieve the compelling interests in the case. VI (1978) (prescribing percentage enrollment requirements for minority students); Siqueland 55 (discussing HEW definition of minority). Grutter, 539 U. S., at 348 (Scalia, J., concurring in part and dissenting in part). 2005). Cf. There is no guarantee, however, that students of different races in the same school will actually spend time with one another. 1 App. In Louisville, a federal district court found that school segregation reflected pre-Brown state laws separating the races. Revisited: Desegregation to Resegregation, 52 J. Negro Educ. 05908, p.8; see also id., at 9 ([T]here is no evidence that diversity in the K12 classroom positively affects student achievement). In each city the school board modified its plan several times in light of, for example, hostility to busing, the threat of resegregation, and the desirability of introducing greater student choice. [31], The opinion came less than two months before the start of the regular school year in King County and less than three weeks before the start of year-round school in the District. Accepting Justice Breyers approach would do no more than move us from separate but equal to unequal but benign. Metro Broadcasting, supra, at 638 (Kennedy, J., dissenting). Indeed, it is a cruel distortion of history to compare Topeka, Kansas, in the 1950s to Louisville and Seattle in the modern dayto equate the plight of Linda Brown (who was ordered to attend a Jim Crow school) to the circumstances of Joshua McDonald (whose request to transfer to a school closer to home was initially declined).
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