(2007) Parents Involved in Community Schools v. Seattle School District No. 1

US Supreme Court
US Supreme Court
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Primary Documents:
(Slip Opinion)

December 4, 2006, Argued
June 28, 2007, * Decided

SYLLABUS: Respondent school
districts voluntarily adopted student assignment plans that rely on race to
determine which schools certain children may attend. 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. The Jefferson County, Ky., district was subject
to [*2]  a desegregation decree until 2000, when the District Court
dissolved the decree after finding that the district had eliminated the
vestiges of prior segregation to the greatest extent practicable. In 2001, the
district adopted its plan classifying students as black or “other” in
order to make certain elementary school assignments and to rule on transfer
requests.

Petitioners, an organization of Seattle parents (Parents Involved) and the
mother of a Jefferson County student (Joshua), whose children were or could be
assigned under the foregoing plans, filed these suits contending, inter
alia,
that allocating children to different public schools based solely on
their race violates the Fourteenth Amendment’s equal protection guarantee. In
the Seattle case, the District Court granted the school district summary
judgment, finding, inter alia, that its plan survived strict scrutiny on
the federal constitutional claim because it was narrowly tailored to serve a
compelling government interest. The Ninth Circuit affirmed. In the Jefferson
County case, the District Court found that the school district had asserted a
compelling interest in maintaining racially diverse schools,
and [*3]  that its plan was, in all relevant respects, narrowly
tailored to serve that interest. The Sixth Circuit affirmed.

Held: The judgments are reversed, and the cases are remanded.

No. 05-908, 426 F.3d 1162; No. 05-915, 416 F.3d 513, reversed and remanded.

THE CHIEF JUSTICE delivered the opinion of the Court with respect to Parts I,
II, III-A, and III-C, concluding:

1. The Court has jurisdiction in these cases. Seattle argues that Parents
Involved lacks standing because its current members’ claimed injuries are not
imminent and are too speculative in that, even if the district maintains its
current plan and reinstitutes the racial tiebreaker, those members will only be
affected if their children seek to enroll in a high school that is
oversubscribed and integration positive. This argument is unavailing; the
group’s members have children in all levels of the district’s schools, and the
complaint sought declaratory and injunctive relief on behalf of members whose elementary
and middle school children may be denied admission to the high schools of their
choice in the future. The fact that those children may not be denied such
admission based [*4]  on their race because of undersubscription or
oversubscription that benefits them does not eliminate the injury claimed. The
group also asserted an interest in not being forced to compete in a race-based
system that might prejudice its members’ children, an actionable form of injury
under the Equal Protection Clause, see, e.g., Adarand Constructors, Inc.
v. Pena, 515 U.S. 200, 211, 115 S. Ct. 2097, 132 L. Ed. 2d 158. The fact
that Seattle has ceased using the racial tiebreaker pending the outcome here is
not dispositive, since the district vigorously defends its program’s constitutionality,
and nowhere suggests that it will not resume using race to assign students if
it prevails. See Friends of Earth, Inc. v. Laidlaw Environmental
Services (TOC), Inc.
, 528 U.S. 167, 189, 120 S. Ct. 693, 145 L. Ed. 2d 610.
Similarly, the fact that Joshua has been granted a transfer does not eliminate
the Court’s jurisdiction; Jefferson County’s racial guidelines apply at all
grade levels and he may again be subject to race-based assignment in middle
school. Pp. 9-11.

2. The school districts have not carried their heavy burden of showing that the
interest they seek to achieve justifies the extreme means they have chosen —
[*5]  discriminating among individual students based on race by
relying upon racial classifications in making school assignments. Pp. 11-17,
25-28.

(a) Because “racial classifications are simply too pernicious to permit
any but the most exact connection between justification and
classification,” Fullilove v. Klutznick, 448 U.S. 448, 537,
100 S. Ct. 2758, 65 L. Ed. 2d 902 (STEVENS, J., dissenting), governmental
distributions of burdens or benefits based on individual racial classifications
are reviewed under strict scrutiny, e.g., Johnson v. California,
543 U.S. 499, 505-506, 125 S. Ct. 1141, 160 L. Ed. 2d 949. Thus, the school
districts must demonstrate that their use of such classifications is
“narrowly tailored” to achieve a “compelling” government
interest. Adarand, supra, at 227, 211, 115 S. Ct. 2097, 132 L. Ed. 2d
158.

Although remedying the effects of past intentional discrimination is a
compelling interest under the strict scrutiny test, see Freeman v. Pitts,
503 U.S. 467, 494, 112 S. Ct. 1430, 118 L. Ed. 2d 108, that interest is not
involved here because the Seattle schools were never segregated by law nor
subject to court-ordered desegregation, and the desegregation decree to which
the Jefferson County schools were previously subject has [*6]  been
dissolved. Moreover, these cases are not governed by Grutter v. Bollinger,
539 U.S. 306, 328, 123 S. Ct. 2325, 156 L. Ed. 2d 304, in which the Court held
that, for strict scrutiny purposes, a government interest in student body
diversity “in the context of higher education” is compelling. That
interest was not focused on race alone but encompassed “all factors that
may contribute to student body diversity,” id., at 337, 123 S. Ct.
2325, 156 L. Ed. 2d 304, including, e.g., having “overcome personal
adversity and family hardship,” id., at 338, 123 S. Ct. 2325, 156
L. Ed. 2d 304. Quoting Justice Powell’s articulation of diversity in Regents
of the University of California
v. Bakke, 438 U.S. 265, 314-315, 98
S. Ct. 2733, 57 L. Ed. 2d 750, the Grutter Court noted that “‘it is
not an interest in simple ethnic diversity, in which a specified percentage of
the student body is in effect guaranteed to be members of selected ethnic
groups,’ that can justify the use of race,” 539 U.S., at 324-325, 123 S.
Ct. 2325, 156 L. Ed. 2d 304, but “‘a far broader array of qualifications
and characteristics of which racial or ethnic origin is but a single though
important element, ‘” id., at 325, 123 S. Ct. 2325, 156 L. Ed. 2d
304. In the present cases, by contrast, race is not considered as part
of [*7]  a broader effort to achieve “exposure to widely diverse
people, cultures, ideas, and viewpoints,” id., at 330, 123 S. Ct.
2325, 156 L. Ed. 2d 304; 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. See Gratz v. Bollinger, 539 U.S. 244, 275, 123 S. Ct.
2411, 156 L. Ed. 2d 257. 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. The Grutter
Court expressly limited 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 the sort of classifications at issue here. Pp. 11-17.

(b) Despite the districts’ assertion that they employed individual racial
classifications in a way necessary to achieve their stated ends, the minimal
effect [*8]  these classifications have on student assignments
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. Similarly, Jefferson County admits that its use of racial
classifications has had a minimal effect, and claims only that its guidelines
provide a firm definition of the goal of racially integrated schools, thereby
providing administrators with authority to collaborate with principals and
staff to maintain schools within the desired range. Classifying and assigning
schoolchildren according to a binary conception of race is an extreme approach
in light of this Court’s precedents and the Nation’s history of using race in
public schools, and requires more than such an amorphous end to justify it. In Grutter,
in contrast, the consideration of race was viewed as indispensable in more than
tripling minority representation at the law school there at issue. See 539
U.S., at 320, 123 S. Ct. 2325, 156 L. Ed. 2d 304. While the Court does 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 [*9]  using such classifications. The districts have
also failed to show 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,” id., at 339, 123 S. Ct. 2325, 156 L. Ed. 2d 304, 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. Pp.
25-28.

THE CHIEF JUSTICE, joined by JUSTICE SCALIA, JUSTICE THOMAS, and JUSTICE ALITO,
concluded for additional reasons in Parts III-B and IV that the plans at issue
are unconstitutional under this Court’s precedents. Pp. 17-25, 28-41.

1. The Court need not resolve the parties’ dispute over whether racial
diversity in schools has a marked impact on test scores and other objective
yardsticks or achieves intangible socialization benefits because it is clear
that the racial classifications at issue [*10]  are not narrowly tailored
to the asserted goal. In design and operation, the plans are directed only to
racial balance, an objective this Court has repeatedly condemned as
illegitimate. They 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. Whatever those demographics happen to be
drives the required “diversity” number in each district. 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 districts, or rather the districts’
white/nonwhite or black/”other” balance, 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, 539 U.S.,
at 316, 335-336, 123 S. Ct. 2325, 156 L. Ed. 2d 304, and the Court concluded
that the law school did not count back from its applicant pool to arrive at
that number, id., at 335-336, 123 S. Ct. 2325, 156 L. Ed. 2d 304. Here,
in contrast, the schools worked backward to achieve a
particular [*11]  type of racial balance, rather than working forward
from some demonstration of the level of diversity that provides the purported
benefits. This is a fatal flaw under the Court’s existing precedent. See, e.g.,
Freeman, supra
, at 494, 112 S. Ct. 1430, 118 L. Ed. 2d 108. Accepting
racial balancing as a compelling state interest would justify imposing racial
proportionality throughout American society, contrary to the Court’s repeated
admonitions that this is unconstitutional. 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 suggesting that their interest differs from racial
balancing. Pp. 17-25.

2. If the need for the racial classifications embraced by the school districts
is unclear, even on the districts’ own terms, the costs are undeniable.
Government action dividing people by race is inherently suspect because such
classifications promote “notions of racial inferiority and lead to a politics
of racial hostility,” Croson, supra, at 493, 109 S. Ct. 706,
102 L. Ed. 2d 854, “reinforce the belief, held by too many for too much of
our history, that individuals [*12]  should be judged by the color of
their skin,” Shaw v. Reno, 509 U.S. 630, 657, 113 S. Ct.
2816, 125 L. Ed. 2d 511, and “endorse race-based reasoning and the
conception of a Nation divided into racial blocs, thus contributing to an
escalation of racial hostility and conflict,” Metro Broadcasting, Inc.
v. FCC, 497 U.S. 547, 603, 110 S. Ct. 2997, 111 L. Ed. 2d 445 (O’Connor,
J., dissenting). When it comes to using race to assign children to schools,
history will be heard. In Brown v. Board of Education, 347 U.S.
483, 74 S. Ct. 686, 98 L. Ed. 873, the Court held that segregation deprived
black children of equal educational opportunities regardless of whether school
facilities and other tangible factors were equal, because the classification
and separation themselves denoted inferiority. Id., at 493-494, 74 S.
Ct. 686, 98 L. Ed. 873. It was not the inequality of the facilities but the
fact of legally separating children based on race on which the Court relied to
find a constitutional violation in that case. Id., at 494, 74 S. Ct.
686, 98 L. Ed. 873. The districts here invoke the ultimate goal of those who
filed Brown and subsequent cases to support their argument, but the
argument of the plaintiff in Brown was that the Equal Protection
Clause [*13]  “prevents states from according differential
treatment to American children on the basis of their color or race,” and
that view prevailed — this Court ruled in its remedial opinion that Brown required
school districts “to achieve a system of determining admission to the
public schools on a nonracial basis.” Brown v. Board of
Education
, 349 U.S. 294, 300-301, 75 S. Ct. 753, 99 L. Ed. 1083, 71 Ohio
Law Abs. 584 (emphasis added). Pp. 28-41.

JUSTICE KENNEDY agreed that the Court has jurisdiction to decide these cases
and that respondents’ student assignment plans are not narrowly tailored to
achieve the compelling goal of diversity properly defined, but concluded that
some parts of the plurality opinion imply an unyielding insistence that race
cannot be a factor in instances when it may be taken into account. Pp. 1-9.

(a) As part of its burden of proving that racial classifications are narrowly
tailored to further compelling interests, the government must establish, in
detail, how decisions based on an individual student’s race are made in a
challenged program. The Jefferson County Board of Education fails to meet this
threshold mandate when it concedes it denied Joshua’s requested kindergarten
transfer [*14]  on the basis of his race under its guidelines, yet
also maintains that the guidelines do not apply to kindergartners. This
discrepancy is not some simple and straightforward error that touches only upon
the peripheries of the district’s use of individual racial classifications. As
becomes clearer when the district’s plan is further considered, Jefferson
County has explained how and when it employs these classifications only in
terms so broad and imprecise that they cannot withstand strict scrutiny. In its
briefing it fails to make clear — even in the limited respects implicated by
Joshua’s initial assignment and transfer denial — whether 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 ad hoc
manner that a less forgiving reading of the record would suggest. When a court
subjects governmental action to strict scrutiny, it cannot construe ambiguities
in favor of the government. In the Seattle case, the school district has gone
further in describing the methods and criteria used to determine assignment
decisions based on individual racial classifications, but it has
nevertheless [*15]  failed to explain why, in a district composed of
a diversity of races, with only a minority of the students classified as
“white,” it has employed the crude racial categories of
“white” and “non-white” as the basis for its assignment
decisions. Far from being narrowly tailored, this system threatens to defeat
its own ends, and the district has provided no convincing explanation for its
design. Pp. 2-6.

(b) The plurality opinion is too dismissive of government’s legitimate interest
in ensuring that all people have equal opportunity regardless of their race. In
administering public schools, it is permissible to consider the schools’ racial
makeup and adopt general policies to encourage a diverse student body, one
aspect of which is its racial composition. Cf. Grutter v. Bollinger,
539 U.S. 306, 123 S. Ct. 2325, 156 L. Ed. 2d 304. School authorities concerned
that their student bodies’ racial compositions interfere with offering an equal
educational opportunity to all are free to devise race-conscious measures to
address the problem in a general way and without treating each student in
different fashion based solely on a systematic, individual typing by race. Such
measures may include strategic [*16]  site selection of new schools;
drawing attendance zones with general recognition of neighborhood demographics;
allocating resources for special programs; recruiting students and faculty in a
targeted fashion; and tracking enrollments, performance, and other statistics
by race.

Each respondent has failed to provide the necessary support for the proposition
that there is no other way than individual racial classifications to avoid
racial isolation in their school districts. Cf. Richmond v. J. A.
Croson Co.
, 488 U.S. 469, 501, 109 S. Ct. 706, 102 L. Ed. 2d 854. In these
cases, the fact that the number of students whose assignment depends on express
racial classifications is small suggests that the schools could have achieved
their stated ends through different means, including the facially race-neutral
means set forth above or, if necessary, a more nuanced, individual evaluation
of school needs and student characteristics that might include race as a
component. The latter approach would be informed by Grutter, though the
criteria relevant to student placement would differ based on the students’ age,
the parents’ needs, and the schools’ role. Pp. 6-9.

JUDGES: ROBERTS, C. J., announced the judgment [*17]  of the
Court and delivered the opinion of the Court with respect to Parts I, II, III-A,
and III-C, in which SCALIA, KENNEDY, THOMAS, and ALITO, JJ., joined, and an
opinion with respect to Parts III-B and IV, in which SCALIA, THOMAS, and ALITO,
JJ., joined. THOMAS, J., filed a concurring opinion. KENNEDY, J., filed an
opinion concurring in part and concurring in the judgment. STEVENS, J., filed a
dissenting opinion. BREYER, J., filed a dissenting opinion, in which STEVENS,
SOUTER, and GINSBURG, JJ., joined.

OPINION BY: ROBERTS

OPINION: 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 join.

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 [*18]
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 Fourteenth Amendment guarantee of equal protection. The
Courts of Appeals below upheld the plans. We granted certiorari, and now
reverse.

I

Both cases present the same underlying legal question — whether a public
school that had not operated legally segregated schools or has been found to be
unitary may choose to classify students by race and rely upon that
classification in making school assignments. Although we examine the plans
under the same legal framework, the specifics of the two plans, and the
circumstances surrounding their adoption, are in some respects quite different.

A

Seattle School District No. 1 operates [*19]  10 regular public high
schools. In 1998, it adopted the plan at issue in this case for assigning
students to these schools. App. in No. 05-908, pp. 90a-92a. n1 The plan allows
incoming ninth graders to choose from among any of the district’s high schools,
ranking however many schools they wish in order of preference.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n1 The plan was in effect from 1999-2002, for three school years. This
litigation was commenced in July 2000, and the record in the District Court was
closed before assignments for the 2001-2002 school year were made. See Brief
for Respondents in No. 05-908, p. 9, n. 9. We rely, as did the lower courts,
largely on data from the 2000-2001 school year in evaluating the plan. See 426
F.3d 1162, 1169-1171 (CA9 2005) (en banc) (Parents Involved VII).
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

Some schools are more popular than others. If too many students list the same
school as their first choice, the district employs a series of
“tiebreakers” to determine who will fill the open slots at the
oversubscribed school. The first tiebreaker [*20]  selects for
admission students who have a sibling currently enrolled in the chosen school.
The next tiebreaker depends upon the racial composition of the particular
school and the race of the individual student. In the district’s public schools
approximately 41 percent of enrolled students are white; the remaining 59
percent, comprising all other racial groups, are classified by Seattle for
assignment purposes as nonwhite. Id., at 38a, 103a. n2 If an
oversubscribed school is not within 10 percentage points of the district’s
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. See Parents Involved VII, 426
F.3d 1162, 1169-1170 (CA9 2005) (en banc). n3 If it is still necessary to
select students for the school after using the racial tiebreaker, the next
tiebreaker is the geographic proximity of the school to the student’s
residence. App. in No. 05-908, at 38a.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n2 The racial breakdown of this nonwhite group is approximately 23.8 percent
Asian-American, 23.1 percent African-American, 10.3 percent Latino, and 2.8
percent Native-American. See 377 F.3d 949, 1005-1006 (CA9 2004) (Parents
Involved VI
) (Graber, J., dissenting). [*21]
n3 For the 2001-2002 school year, the deviation permitted from the desired
racial composition was increased from 10 to 15 percent. App. in No. 05-908, p.
38a. The bulk of the data in the record was collected using the 10 percent
band, see n. 1, supra.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

Seattle has never operated segregated schools — legally separate schools for
students of different races — nor has it ever been subject to court-ordered
desegregation. It nonetheless employs the racial tiebreaker in an attempt to
address the effects of racially identifiable housing patterns on school
assignments. Most white students live in the northern part of Seattle, most
students of other racial backgrounds in the southern part. Parents Involved
VII
, supra, at 1166. Four of Seattle’s high schools are located in
the north — Ballard, Nathan Hale, Ingraham, and Roosevelt — and five in the
south — Rainier Beach, Cleveland, West Seattle, Chief Sealth, and Franklin.
One school — Garfield — is more or less in the center of Seattle. App. in No.
05-908, at 38a-39a, 45a.

For the 2000-2001 school year, five of these schools [*22]  were
oversubscribed — Ballard, Nathan Hale, Roosevelt, Garfield, and Franklin — so
much so that 82 percent of incoming ninth graders ranked one of these schools
as their first choice. Id., at 38a. Three of the oversubscribed schools
were “integration positive” because the school’s white enrollment the
previous school year was greater than 51 percent — Ballard, Nathan Hale, and
Roosevelt. Thus, more nonwhite students (107, 27, and 82, respectively) who
selected one of these three schools as a top choice received placement at the
school than would have been the case had race not been considered, and
proximity been the next tiebreaker. Id., at 39a-40a. Franklin was
“integration positive” because its nonwhite enrollment the previous
school year was greater than 69 percent; 89 more white students were assigned
to Franklin by operation of the racial tiebreaker in the 2000-2001 school year
than otherwise would have been. Ibid. Garfield was the only
oversubscribed school whose composition during the 1999-2000 school year was
within the racial guidelines, although in previous years Garfield’s enrollment
had been predominantly nonwhite, and the racial tiebreaker had been
used [*23]  to give preference to white students. Id., at 39a.

Petitioner Parents Involved in Community Schools (Parents Involved) is a
nonprofit corporation comprising the parents of children who have been or may
be denied assignment to their chosen high school in the district because of
their race. The concerns of Parents Involved are illustrated by Jill Kurfirst,
who sought to enroll her ninth-grade son, Andy Meeks, in Ballard High School’s
special Biotechnology Career Academy. Andy suffered from attention deficit
hyperactivity disorder and dyslexia, but had made good progress with hands-on
instruction, and his mother and middle school teachers thought that the smaller
biotechnology program held the most promise for his continued success. Andy was
accepted into this selective program but, because of the racial tiebreaker, was
denied assignment to Ballard High School. Id., at 143a-146a, 152a-160a.
Parents Involved commenced this suit in the Western District of Washington,
alleging that Seattle’s use of race in assignments violated the Equal
Protection Clause of the Fourteenth Amendment, n4 Title VI of the Civil Rights
Act of 1964, n5 and the Washington Civil Rights Act. n6 Id., [*24]
at 28a-35a.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n4 “No State shall . . . deny to any person within its jurisdiction the
equal protection of the laws.” U.S. Const., Amdt. 14, § 1.

n5 “No person in the United States shall, on the ground of race . . . be
denied the benefits of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance.” 78 Stat. 252, 42 U.S.C.
§ 2000d.

n6 “The state shall not discriminate against, or grant preferential
treatment to, any individual or group on the basis of race, sex, color,
ethnicity, or national origin in the operation of public employment, public
education, or public contracting.” Wash. Rev. Code § 49.60.400(1) (2006).
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

The District Court granted summary judgment to the school district, finding
that state law did not bar the district’s use of the racial tiebreaker and that
the plan survived strict scrutiny on the federal constitutional claim because
it was narrowly tailored to serve a compelling government interest. 137 F.
Supp. 2d 1224, 1240 (WD Wash. 2001) [*25]  (Parents Involved I).
The Ninth Circuit initially reversed based on its interpretation of the Washington
Civil Rights Act, 285 F.3d 1236, 1253 (2002) (Parents Involved II), and
enjoined the district’s use of the integration tiebreaker, id., at 1257.
Upon realizing that the litigation would not be resolved in time for assignment
decisions for the 2002-2003 school year, the Ninth Circuit withdrew its
opinion, 294 F.3d 1084 (2002) (Parents Involved III), vacated the
injunction, and, pursuant to Wash. Rev. Code § 2.60.020 (2006), certified the
state-law question to the Washington Supreme Court, 294 F.3d 1085, 1087 (2002)
(Parents Involved IV).

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 “programs which are racially neutral, such as the [district’s]
open choice plan.” Parents Involved in Community Schools v. Seattle
School Dist., No. 1,
149 Wn. 2d 660, 689-690, 663, 72 P. 3d 151, 166, 153
(2003) (en banc)  [*26]  (Parents Involved V). The state court
returned the case to the Ninth Circuit for further proceedings. Id., at
690, 72 P. 3d, at 167.

A panel of the Ninth Circuit then again reversed the District Court, this time
ruling on the federal constitutional question. Parents Involved VI, 377
F.3d 949 (2004). The panel determined that while achieving racial diversity and
avoiding racial isolation are compelling government interests, id., at
964, Seattle’s use of the racial tiebreaker was not narrowly tailored to
achieve these interests, id., at 980. The Ninth Circuit granted
rehearing en banc, 395 F.3d 1168 (2005), and overruled the panel decision,
affirming the District Court’s determination that Seattle’s plan was narrowly
tailored to serve a compelling government interest, Parents Involved VII,
426 F.3d at 1192-1193. We granted certiorari. 547 U.S.    , 126
S. Ct. 2351, 165 L. Ed. 2d 277 (2006).

B

Jefferson County Public Schools operates the public school system in
metropolitan Louisville, Kentucky. In 1973 a federal court found that Jefferson
County had maintained a segregated school system, Newburg Area Council, Inc.
v. Board of Ed. of Jefferson Cty., 489 F.2d 925, 932
(CA6) [*27]  , vacated and remanded, 418 U.S. 918, 94 S. Ct. 3208, 94
S. Ct. 3209, reinstated with modifications, 510 F.2d 1358, 1359 (CA6 1974), and
in 1975 the District Court entered a desegregation decree. See Hampton
v. Jefferson Cty. Bd. of Ed., 72 F. Supp. 2d 753, 762-764 (WD Ky. 1999).
Jefferson County operated under this decree until 2000, when the District Court
dissolved the decree after finding that the district had achieved unitary
status by eliminating “to the greatest extent practicable” the
vestiges of its prior policy of segregation. Hampton v. Jefferson
Cty. Bd. of Ed.
, 102 F. Supp. 2d 358, 360 (2000). See Board of Ed. of
Oklahoma City Public Schools
v. Dowell, 498 U.S. 237, 249-250, 111
S. Ct. 630, 112 L. Ed. 2d 715 (1991); Green v. County School Board,
391 U.S. 430, 435-436, 88 S. Ct. 1689, 20 L. Ed. 2d 716 (1968).

In 2001, after the decree had been dissolved, Jefferson County adopted the
voluntary student assignment plan at issue in this case. App. in No. 05-915, p.
77. Approximately 34 percent of the district’s 97,000 students are black; most
of the remaining 66 percent are white. McFarland v. Jefferson Cty.
Public Schools
, 330 F. Supp. 2d 834, 839-840, and n. 6 (WD Ky.
2004) [*28]  (McFarland I). The plan requires all nonmagnet
schools to maintain a minimum black enrollment of 15 percent, and a maximum
black enrollment of 50 percent. App. in No. 05-915, at 81; McFarland I, supra,
at 842.

At the elementary school level, based on his or her address, each student is
designated a “resides” school to which students within a specific
geographic area are assigned; elementary resides schools are “grouped into
clusters in order to facilitate integration.” App. in No. 05-915, at 82.
The district assigns students to nonmagnet schools in one of two ways: Parents
of kindergartners, first-graders, and students new to the district may submit
an application indicating a first and second choice among the schools within
their cluster; students who do not submit such an application are assigned
within the cluster by the district. “Decisions to assign students to
schools within each cluster are based on available space within the schools and
the racial guidelines in the District’s current student assignment plan.” Id.,
at 38. If a school has reached the “extremes of the racial
guidelines,” a student whose race would contribute to the school’s
racial [*29]  imbalance will not be assigned there. Id., at
38-39, 82. After assignment, students at all grade levels are permitted to
apply to transfer between nonmagnet schools in the district. Transfers may be
requested for any number of reasons, and may be denied because of lack of
available space or on the basis of the racial guidelines. Id., at 43. n7

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n7 Middle and high school students are designated a single resides school and
assigned to that school unless it is at the extremes of the racial guidelines.
Students may also apply to a magnet school or program, or, at the high school
level, take advantage of an open enrollment plan that allows ninth-grade
students to apply for admission to any nonmagnet high school. App. in No.
05-915, pp. 39-41, 82-83.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

When petitioner Crystal Meredith moved into the school district in August 2002,
she sought to enroll her son, Joshua McDonald, in kindergarten for the
2002-2003 school year. His resides school was only a mile from his new home,
but it had no available space —  [*30]  assignments had been made in
May, and the class was full. Jefferson County assigned Joshua to another elementary
school in his cluster, Young Elementary. This school was 10 miles from home,
and Meredith sought to transfer Joshua to a school in a different cluster,
Bloom Elementary, which — like his resides school — was only a mile from
home. See Tr. in McFarland I, pp. 1-49 through 1-54 (Dec. 8, 2003).
Space was available at Bloom, and intercluster transfers are allowed, but
Joshua’s transfer was nonetheless denied because, in the words of Jefferson
County, “the transfer would have an adverse effect on desegregation compliance”
of Young. App. in No. 05-915, at 97. n8

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n8 It is not clear why the racial guidelines were even applied to Joshua’s
transfer application — the guidelines supposedly do not apply at the
kindergarten level. Id., at 43. Neither party disputes, however, that
Joshua’s transfer application was denied under the racial guidelines, and
Meredith’s objection is not that the guidelines were misapplied but rather that
race was used at all.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –
– [*31]

Meredith brought suit in the Western District of Kentucky, alleging violations
of the Equal Protection Clause of the Fourteenth Amendment. The District Court
found that Jefferson County had asserted a compelling interest in maintaining
racially diverse schools, and that the assignment plan was (in all relevant
respects) narrowly tailored to serve that compelling interest. McFarland I,
supra, at 837. n9 The Sixth Circuit affirmed in a per curiam
opinion relying upon the reasoning of the District Court, concluding that a
written opinion “would serve no useful purpose.” McFarland v. Jefferson
Cty. Public Schools
, 416 F.3d 513, 514 (2005) (McFarland II). We
granted certiorari. 547 U.S.    , 126 S. Ct. 2351, 165 L. Ed. 2d
277 (2006).

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n9 Meredith joined a pending lawsuit filed by several other plaintiffs. See id.,
at 7-11. The other plaintiffs all challenged assignments to certain specialized
schools, and the District Court found these assignments, which are no longer at
issue in this case, unconstitutional. McFarland I, 330 F. Supp. 2d 834,
837, 864 (WD Ky. 2004).
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –
– [*32]

II

As a threshold matter, we must assure ourselves of our jurisdiction. Seattle
argues that Parents Involved lacks standing because none of its current members
can claim an imminent injury. Even if the district maintains the current plan
and reinstitutes the racial tiebreaker, Seattle argues, Parents Involved
members will only be affected if their children seek to enroll in a Seattle
public high school and choose an oversubscribed school that is integration
positive — too speculative a harm to maintain standing. Brief for Respondents
in No. 05-908, pp. 16-17.

This argument is unavailing. The group’s members have children in the
district’s elementary, middle, and high schools, App. in No. 05-908, at
299a-301a; Affidavit of Kathleen Brose Pursuant to this Court’s Rule 32.3
(Lodging of Petitioner Parents Involved), and the complaint sought declaratory
and injunctive relief on behalf of Parents Involved members whose elementary
and middle school children may be “denied admission to the high schools of
their choice when they apply for those schools in the future,” App. in No.
05-908, at 30a. The fact that it is possible that children of group members
will not be denied admission to [*33]  a school based on their race
— because they choose an undersubscribed school or an oversubscribed school in
which their race is an advantage — does not eliminate the injury claimed.
Moreover, Parents Involved also asserted an interest in not being “forced
to compete for seats at certain high schools in a system that uses race as a
deciding factor in many of its admissions decisions.” Ibid. As we
have held, one form of injury under the Equal Protection Clause is being forced
to compete in a race-based system that may prejudice the plaintiff, Adarand
Constructors, Inc.
v. Pena, 515 U.S. 200, 211, 115 S. Ct. 2097, 132
L. Ed. 2d 158 (1995); Northeastern Fla. Chapter, Associated Gen. Contractors
of America
v. Jacksonville, 508 U.S. 656, 666, 113 S. Ct. 2297, 124
L. Ed. 2d 586 (1993), an injury that the members of Parents Involved can
validly claim on behalf of their children.

In challenging standing, Seattle also notes that it has ceased using the racial
tiebreaker pending the outcome of this litigation. Brief for Respondents in No.
05-908, at 16-17. 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 [*34]  not resume using race to assign
students. Voluntary cessation does not moot a case or controversy unless
“subsequent events make 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, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000) (quoting United States v. Concentrated
Phosphate Export Ass’n
, 393 U.S. 199, 203, 89 S. Ct. 361, 21 L. Ed. 2d 344
(1968) (internal quotation marks omitted)), a heavy burden that Seattle has
clearly not met.

Jefferson County does not challenge our jurisdiction, Tr. of Oral Arg. in No.
05-915, p. 48, but we are nonetheless obliged to ensure that it exists, Arbaugh
v. Y & H Corp., 546 U.S. 500, 514, 126 S. Ct. 1235, 163 L. Ed. 2d
1097 (2006). Although apparently Joshua has now been granted a transfer to Bloom,
the school to which transfer was denied under the racial guidelines, Tr. of
Oral Arg. in No. 05-915, at 45, the racial guidelines apply at all grade
levels. Upon Joshua’s enrollment in middle school, he may again be subject to
assignment based on his race. In addition, Meredith sought damages in her
complaint, which is sufficient to preserve our ability to
consider [*35]  the question. Los Angeles v. Lyons, 461
U.S. 95, 109, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983).

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. Johnson v. California, 543 U.S. 499,
505-506, 125 S. Ct. 1141, 160 L. Ed. 2d 949 (2005); Grutter v. Bollinger,
539 U.S. 306, 326, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (2003); Adarand, supra,
at 224, 115 S. Ct. 2097, 132 L. Ed. 2d 158. As the Court recently reaffirmed,
“‘racial classifications are simply too pernicious to permit any but the
most exact connection between justification and classification.'” Gratz
v. Bollinger, 539 U.S. 244, 270, 123 S. Ct. 2411, 156 L. Ed. 2d 257
(2003) (quoting Fullilove v. Klutznick, 448 U.S. 448, 537, 100 S.
Ct. 2758, 65 L. Ed. 2d 902 (1980) (STEVENS, J., dissenting); brackets omitted).
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, supra, at
227, 115 S. Ct. 2097, 132 L. Ed. 2d 158.

Without attempting in these cases to set forth all the interests a school
district [*36]  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, 503 U.S. 467, 494, 112 S.
Ct. 1430, 118 L. Ed. 2d 108 (1992). Yet the Seattle public schools have not
shown that they were ever segregated by law, and were not subject to
court-ordered desegregation decrees. The Jefferson County public schools were
previously segregated by law and were subject to a desegregation decree entered
in 1975. In 2000, the District Court that entered that decree dissolved it,
finding that Jefferson County had “eliminated the vestiges associated with
the former policy of segregation and its pernicious effects,” and thus had
achieved “unitary” status. Hampton, 102 F. Supp. 2d, at 360.
Jefferson County accordingly does not rely upon an interest in remedying the
effects of past intentional discrimination in defending its present use of race
in assigning students. See Tr. of Oral Arg. in No. 05-915, at 38.

Nor could it. We have emphasized that the harm being [*37]  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, 97 S. Ct. 2749, 53 L. Ed. 2d 745 (1977). See also Freeman, supra,
at 495-496, 112 S. Ct. 1430, 118 L. Ed. 2d 108; Dowell, 498 U.S., at
248, 111 S. Ct. 630, 112 L. Ed. 2d 715; Milliken v. Bradley, 418
U.S. 717, 746, 94 S. Ct. 3112, 41 L. Ed. 2d 1069 (1974). Once Jefferson County
achieved unitary status, it had remedied the constitutional wrong that allowed
race-based assignments. Any continued use of race must be justified on some
other basis. n10

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n10 The districts point to dicta in a prior opinion in which the Court
suggested that, while not constitutionally mandated, it would be
constitutionally permissible for a school district to seek racially balanced
schools as a matter of “educational policy.” See Swann v. Charlotte-Mecklenburg
Bd. of Ed.
, 402 U.S. 1, 16, 91 S. Ct. 1267, 28 L. Ed. 2d 554 (1971). The
districts also quote with approval an in-chambers opinion in which then-Justice
Rehnquist made a suggestion to the same effect. See Bustop, Inc. v. Los
Angeles Bd. of Ed.
, 439 U.S. 1380, 1383, 99 S. Ct. 40, 58 L. Ed. 2d 88
(1978). The citations do not carry the significance the districts would ascribe
to them. Swann, evaluating a school district engaged in court-ordered
desegregation, had no occasion to consider whether a district’s voluntary
adoption of race-based assignments in the absence of a finding of prior de
jure
segregation was constitutionally permissible, an issue that was again
expressly reserved in Washington v. Seattle School Dist. No. 1,
458 U.S. 457, 472, n. 15, 102 S. Ct. 3187, 73 L. Ed. 2d 896 (1982). Bustop,
addressing in the context of an emergency injunction application a busing plan
imposed by the Superior Court of Los Angeles County, is similarly unavailing.
Then-Justice Rehnquist, in denying emergency relief, stressed that
“equitable considerations” counseled against preliminary relief. 439
U.S., at 1383, 99 S. Ct. 40, 58 L. Ed. 2d 88. The propriety of preliminary
relief and resolution of the merits are of course “significantly
different” issues. University of Texas v. Camenisch, 451
U.S. 390, 393, 101 S. Ct. 1830, 68 L. Ed. 2d 175 (1981).
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [*38]

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,
539 U.S., at 328, 123 S. Ct. 2325, 156 L. Ed. 2d 304. The specific interest
found compelling in Grutter was student body diversity “in the
context of higher education.” Ibid. The diversity interest was not
focused on race alone but encompassed “all factors that may contribute to
student body diversity.” Id., at 337, 123 S. Ct. 2325, 156 L. Ed.
2d 304. 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.” Id., at 338, 123 S. Ct. 2325,
156 L. Ed. 2d 304 (brackets and internal quotation marks omitted).

The Court quoted the articulation of diversity from Justice Powell’s opinion in
Regents of the University of California v. Bakke, 438 U.S. 265,
98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978), noting [*39]  that “it
is not an interest in simple ethnic diversity, in which a specified percentage
of the student body is in effect guaranteed to be members of selected ethnic
groups, that can justify the use of race.” Grutter, supra,
at 324-325, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (citing and quoting Bakke,
supra, at 314-315, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (opinion of Powell,
J.); brackets and internal quotation marks omitted). Instead, what was upheld
in Grutter was consideration of “a far broader array of
qualifications and characteristics of which racial or ethnic origin is but a
single though important element.” 539 U.S., at 325, 123 S. Ct. 2325, 156
L. Ed. 2d 304 (quoting Bakke, supra, at 315, 98 S. Ct. 2733, 57
L. Ed. 2d 750 (opinion of Powell, J.); internal quotation marks omitted).

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,” 539 U.S., at 337, 123 S. Ct. 2325, 156
L. Ed. 2d 304. As the Court explained, “the importance of this
individualized consideration in the context of a race-conscious admissions [*40]
program is paramount.” Ibid. 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.” Id., at 330, 123 S. Ct.
2325, 156 L. Ed. 2d 304.

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,” ibid.; 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,
539 U.S., at 275, 123 S. Ct. 2411, 156 L. Ed. 2d 257, the plans here “do
not provide for a meaningful individualized review of applicants” but
instead rely on racial classifications in a “nonindividualized,
mechanical” way. Id., at 276, 280, 123 S. Ct. 2411, 156 L. Ed. 2d
257 [*41]  (O’Connor, J., concurring).

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. n11 But see Metro
Broadcasting, Inc.
v. FCC, 497 U.S. 547, 610, 110 S. Ct. 2997, 111
L. Ed. 2d 445 (1990) (“We are a Nation not of black and white alone, but
one teeming with divergent communities knitted together with various traditions
and carried forth, above all, by individuals”) (O’Connor, J., dissenting).
The Seattle “Board Statement Reaffirming Diversity Rationale” speaks
of the “inherent educational value” in “providing students the
opportunity to attend schools with diverse student enrollment,” App. in
No. 05-908, at 128a, 129a. But under 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 [*42]  that is “‘broadly diverse,'” Grutter,
supra
, at 329, 123 S. Ct. 2325, 156 L. Ed. 2d 304.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n11 The way Seattle classifies its students bears this out. Upon enrolling
their child with the district, parents are required to identify their child as
a member of a particular racial group. If a parent identifies more than one
race on the form, “the application will not be accepted and, if necessary,
the enrollment service person taking the application will indicate one
box.” App. in No. 05-908, at 303a.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

Prior to Grutter, the courts of appeals rejected as unconstitutional
attempts to implement race-based assignment plans — such as the plans at issue
here — in primary and secondary schools. See, e.g., Eisenberg v. Montgomery
Cty. Public Schools
, 197 F.3d 123, 133 (CA4 1999); Tuttle v. Arlington
Cty. School Bd.
, 195 F.3d 698, 701 (CA4 1999); Wessmann v. Gittens,
160 F.3d 790, 809 (CA1 1998). See also Ho v. San Francisco Unified
School Dist.
, 147 F.3d 854, 865 (CA9 1998). [*43]  After Grutter,
however, the two Courts of Appeals in these cases, and one other, found that
race-based assignments were permissible at the elementary and secondary level,
largely in reliance on that case. See Parents Involved VII, 426 F.3d at
1166; McFarland II, 416 F.3d at 514; Comfort v. Lynn School
Comm.
, 418 F.3d 1, 13 (CA1 2005).

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.” 539 U.S., at 329, 334, 123 S. Ct. 2325, 156 L.
Ed. 2d 304. See also Bakke, supra, at 312, 313, 98 S. Ct. 2733,
57 L. E. 2d 750 (opinion of Powell, J.). The Court explained that “context
matters” in applying strict scrutiny, and repeatedly noted that it was
addressing the use of race “in the context of higher education.” Grutter,
supra, at 327, 328, 334, 123 S. Ct. 2325, 156 L. Ed. 2d 304. The Court
in Grutter expressly articulated key limitations on its holding —
defining a specific type of broad-based diversity and noting
the [*44]  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.

B

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. Brief for Respondents in No. 05-908, at 19. Jefferson
County has articulated a similar goal, phrasing its interest in terms of
educating its students “in a racially integrated environment.” App.
in No. 05-915, at 22. n12 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 [*45]  at issue in Grutter — it
makes sense to promote that interest directly by relying on race alone.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n12 Jefferson County also argues that it would be incongruous to hold that what
was constitutionally required of it one day — race-based assignments pursuant
to the desegregation decree — can be constitutionally prohibited the next. But
what was constitutionally required of the district prior to 2000 was the
elimination of the vestiges of prior segregation — not racial proportionality
in its own right. See Freeman v. Pitts, 503 U.S. 467, 494-496,
112 S. Ct. 1430, 118 L. Ed. 2d 108 (1992). Once those vestiges were eliminated,
Jefferson County was on the same footing as any other school district, and its
use of race must be justified on other grounds.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

The parties and their amici dispute whether racial diversity in schools
in fact has a marked impact on test scores and other objective yardsticks or
achieves intangible socialization benefits. The debate is not one we need to
resolve, however, because it is clear that the [*46]  racial
classifications employed by the districts are not narrowly tailored to the goal
of achieving the educational and social benefits asserted to flow from racial
diversity. In design and operation, the plans are directed only to racial
balance, pure and simple, an objective this Court has repeatedly condemned as
illegitimate.

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). App. in No. 05-908, at 103a. 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,” McFarland I, 330 F. Supp. 2d, at 842, based on the
objective of achieving at “all schools . . . an African-American
enrollment equivalent to the average district-wide
African-American [*47]  enrollment” of 34 percent. App. in No.
05-915, at 81. 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 attain-ing a
level of diversity within the schools that approximates the district’s overall
demographics.” App. in No. 05-908, at 42a.

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 [*48]
that is the only diversity addressed by the plans. Indeed, in its brief Seattle
simply assumes that the educational benefits track the racial breakdown of the
district. See Brief for Respondents in No. 05-908, 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”). When asked for “a range of percentage that
would be diverse,” however, Seattle’s expert said it was important to have
“sufficient numbers so as to avoid students feeling any kind of specter of
exceptionality.” App. in No. 05-908, at 276a. The district did not attempt
to defend the proposition that anything outside its range posed the
“specter of exceptionality.” Nor did it demonstrate in any way how
the educational and social benefits of racial diversity or avoidance of racial
isolation are more likely to be achieved at a school that is 50 percent white
and 50 percent Asian-American, which would qualify as diverse under Seattle’s
plan, than at a school that is 30 percent Asian-American, 25 percent
African-American, 25 percent Latino, and 20 percent white, which under
Seattle’s definition [*49]  would be racially concentrated.

Similarly, Jefferson County’s expert referred to the importance of having
“at least 20 percent” minority group representation for the group
“to be visible enough to make a difference,” and noted that
“small isolated minority groups in a school are not likely to have a
strong effect on the overall school.” App. in No. 05-915, at 159, 147. The
Jefferson County plan, however, is based on a goal of replicating at each
school “an African-American enrollment equivalent to the average
district-wide African-American enrollment.” Id., at 81. Joshua
McDonald’s requested transfer was denied because his race was listed as
“other” rather than black, and allowing the transfer would have had
an adverse effect on the racial guideline compliance of Young Elementary, the
school he sought to leave. Id., at 21. At the time, however, Young
Elementary was 46.8 percent black. Id., at 73. The transfer might have
had an adverse effect on the effort to approach district-wide racial
proportionality at Young, but it had nothing to do with preventing either the
black or “other” group from becoming “small” or
“isolated” at Young.

In fact, in each case the extreme measure [*50]  of relying on race
in assignments is unnecessary to achieve the stated goals, even as defined by
the districts. For example, at Franklin High School in Seattle, the racial
tiebreaker was applied because nonwhite enrollment exceeded 69 percent, and
resulted in an incoming ninth-grade class in 2000-2001 that was 30.3 percent
Asian-American, 21.9 percent African-American, 6.8 percent Latino, 0.5 percent
Native-American, and 40.5 percent Caucasian. Without the racial tiebreaker, the
class would have been 39.6 percent Asian-American, 30.2 percent
African-American, 8.3 percent Latino, 1.1 percent Native-American, and 20.8
percent Caucasian. See App. in No. 05-908, at 308a. When the actual racial
breakdown is considered, enrolling students without regard to their race yields
a substantially diverse student body under any definition of diversity. n13

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n13 Data for the Seattle schools in the several years since this litigation was
commenced further demonstrate the minimal role that the racial tiebreaker in
fact played. At Ballard, in 2005-2006 — when no class at the school was
subject to the racial tiebreaker — the student body was 14.2 percent
Asian-American, 9 percent African-American, 11.7 percent Latino, 62.3 percent
Caucasian, and 2.8 percent Native-American. Reply Brief for Petitioner in No.
05-908, p. 7. In 2000-2001, when the racial tiebreaker was last used, Ballard’s
total enrollment was 17.5 percent Asian-American, 10.8 percent
African-American, 10.7 percent Latino, 56.4 percent Caucasian, and 4.6 percent
Native-American. App. in No. 05-908, at 283a. Franklin in 2005-2006 was 48.9
percent Asian-American, 33.5 percent African-American, 6.6 percent Latino, 10.2
percent Caucasian, and 0.8 percent Native-American. Reply Brief for Petitioner
in No. 05-908, at 7. With the racial tiebreaker in 2000-2001, total enrollment
was 36.8 percent Asian-American, 32.2 percent African-American, 5.2 percent
Latino, 25.1 percent Caucasian, and 0.7 percent Native-American. App. in No.
05-908, at 284a. Nathan Hale’s 2005-2006 enrollment was 17.3 percent
Asian-American, 10.7 percent African-American, 8 percent Latino, 61.5 percent
Caucasian, and 2.5 percent Native-American. Reply Brief for Petitioner in No.
05-908, at 7. In 2000-2001, with the racial tiebreaker, it was 17.9 percent
Asian-American, 13.3 percent African-American, 7 percent Latino, 58.4 percent
Caucasian, and 3.4 percent Native-American. App. in No. 05-908, at 286a.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [*51]

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. 539 U.S., at 316, 335-336, 123 S. Ct. 2325, 156 L. Ed. 2d
304. Although the matter was the subject of disagreement on the Court, see id.,
at 346-347, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (SCALIA, J., concurring in part
and dissenting in part); id., at 382-383, 123 S. Ct. 2325, 156 L. Ed. 2d
304 (Rehnquist, C. J., dissenting); id., at 388-392, 123 S. Ct. 2325,
156 L. Ed. 2d 304 (KENNEDY, J., dissenting), 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. Id., at 335-336, 123 S. Ct. 2325, 156 L. Ed. 2d 304. 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 “racial balance is not to be
achieved for its own sake.” Freeman, 503 U.S., at 494, 112 S. Ct.
1430, 118 L. Ed. 2d 108. [*52]  See also Richmond v. J. A.
Croson Co.
, 488 U.S. 469, 507, 109 S. Ct. 706, 102 L. Ed. 2d 854 (1989); Bakke,
438 U.S., at 307, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (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.” 539 U.S., at 330, 123
S. Ct. 2325, 156 L. Ed. 2d 304.

Accepting racial balancing as a compelling state interest would justify the
imposition of racial proportionality throughout American society, contrary to
our repeated recognition that “at 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, 515 U.S. 900,
911, 115 S. Ct. 2475, 132 L. Ed. 2d 762 (1995) (quoting Metro Broadcasting,
497 U.S., at 602, 110 S. Ct. 2997, 111 L. Ed. 2d 445 (O’Connor, J.,
dissenting); internal quotation marks omitted). n14 Allowing racial balancing
as a compelling end in itself would “effectively assure that
race [*53]  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,
supra
, at 495, 109 S. Ct. 706, 102 L. Ed. 2d 854 (plurality opinion of
O’Connor, J.) (quoting Wygant v. Jackson Bd. of Ed., 476 U.S.
267, 320, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (1986) (STEVENS, J., dissenting),
in turn quoting Fullilove, 448 U.S., at 547, 100 S. Ct. 2758, 65 L. Ed.
2d 902 (STEVENS, J., dissenting); brackets and citation omitted). An interest
“linked to nothing other than proportional representation of various races
. . . would support indefinite use of racial classifications, employed first to
obtain the appropriate mixture of racial views and then to ensure that the
[program] continues to reflect that mixture.” Metro Broadcasting, supra,
at 614, 110 S. Ct. 2997, 111 L. Ed 2d 445 (O’Connor, J., dissenting).

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n14 In contrast, Seattle’s website formerly described “emphasizing
individualism as opposed to a more collective ideology” as a form of
“cultural racism,” and currently states that the district has no
intention “to hold onto unsuccessful concepts such as [a] . . . colorblind
mentality.” Harrell, School Web Site Removed: Examples of Racism Sparked
Controversy, Seattle Post-Intelligencer, June 2, 2006, pp. B1, B5. Compare Plessy
v. Ferguson, 163 U.S. 537, 559, 16 S. Ct. 1138, 41 L. Ed. 256 (1896)
(Harlan, J., dissenting) (“Our Constitution is color-blind, and neither
knows nor tolerates classes among citizens. In respect of civil rights, all
citizens are equal before the law”).
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –
– [*54]

The validity of our concern that racial balancing has “no logical stopping
point,” Croson, supra, at 498, 109 S. Ct. 706, 102 L. Ed. 2d
854 (quoting Wygant, supra, at 275, 106 S. Ct. 1842, 90 L. Ed. 2d
260 (plurality opinion); internal quotation marks omitted); see also Grutter,
supra
, at 343, 123 S. Ct. 2325, 156 L. Ed. 2d 304, is demonstrated here by
the degree to which the districts tie their racial guidelines to their
demographics. As the districts’ demographics shift, so too will their
definition of racial diversity. See App. in No. 05-908, at 103a (describing
application of racial tiebreaker based on “current white
percentage” of 41 percent and “current minority
percentage” of 59 percent (emphasis added)).

The Ninth Circuit below stated that it “shared in the hope” expressed
in Grutter that in 25 years racial preferences would no longer be
necessary to further the interest identified in that case. Parents Involved
VII
, 426 F.3d at 1192. But in Seattle the plans are defended as necessary
to address the consequences of racially identifiable housing patterns. The
sweep of the mandate claimed by the district is contrary to our rulings that
remedying past societal discrimination does not justify [*55]
race-conscious government action. See, e.g., Shaw v. Hunt, 517
U.S. 899, 909-910, 116 S. Ct. 1894, 135 L. Ed. 2d 207 (1996) (“An effort
to alleviate the effects of societal discrimination is not a compelling
interest”); Croson, supra, at 498-499, 109 S. Ct. 706, 102
L. Ed. 2d 854; Wygant, 476 U.S., at 276, 106 S. Ct. 1842, 90 L. Ed. 2d
260 (plurality opinion) (“Societal discrimination, without more, is too
amorphous a basis for imposing a racially classified remedy”); id.,
at 288, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (O’Connor, J., concurring in part and
concurring in judgment) (“[A] governmental agency’s interest in remedying
‘societal’ discrimination, that is, discrimination not traceable to its own
actions, cannot be deemed sufficiently compelling to pass constitutional
muster”).

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 [*56]  from racial balance.
See, e.g., App. in No. 05-908, at 257a (“Q. What’s your
understanding of when a school suffers from racial isolation? A. I don’t have a
definition for that”); id., at 228a-229a (“I don’t think we’ve
ever sat down and said, ‘Define racially concentrated school exactly on point
in quantitative terms.’ I don’t think we’ve ever had that conversation”);
Tr. in McFarland I, at 1-90 (Dec. 8, 2003) (“Q. How does the
Jefferson County School Board define diversity . . . ?” “A. Well, we
want to have the schools that make up the percentage of students of the
population”).

Jefferson County phrases its interest as “racial integration,” but
integration certainly does not require the sort of racial proportionality
reflected in its plan. Even in the context of mandatory desegregation, we have
stressed that racial proportionality is not required, see Milliken, 433
U.S., at 280, n. 14, 97 S. Ct. 2749, 53 L. Ed 2d 745 (“[A desegregation]
order contemplating the substantive constitutional right [to a] particular
degree of racial balance or mixing is . . . infirm as a matter of law”
(internal quotation marks omitted)); Swann v. Charlotte-Mecklenburg
Bd. of Ed.
, 402 U.S. 1, 24, 91 S. Ct. 1267, 28 L. Ed. 2d 554
(1971) [*57]  (“The constitutional command to desegregate
schools does not mean that every school in every community must always reflect
the racial composition of the school system as a whole”), and here
Jefferson County has already been found to have eliminated the vestiges of its
prior segregated school system.

The en banc Ninth Circuit declared that “when a racially diverse school
system is the goal (or racial concentration or isolation is the problem), there
is no more effective means than a consideration of race to achieve the
solution.” Parents Involved VII, supra, at 1191. For the
foregoing reasons, this conclusory argument cannot sustain the plans. 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. To the extent the objective is sufficient diversity so that
students see fellow students as individuals rather than solely as members of a
racial group, using means that treat students solely as members of a racial
group is fundamentally at cross-purposes with that end.

C

The districts assert, as they must, that the way in which they have employed
individual [*58]  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. App. in No. 05-908, at 162a. 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. Id., at 162a-163a. 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 [*59]  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.

As the panel majority in Parents Involved VI concluded:

“The tiebreaker’s
annual effect is thus merely to shuffle a few handfuls of different minority
students between a few schools — about a dozen additional Latinos into
Ballard, a dozen black students into Nathan Hale, perhaps two dozen Asians into
Roosevelt, and so on. The District has not met its burden of proving these
marginal changes . . . outweigh the cost of subjecting hundreds of students to
disparate treatment based solely upon the color of their skin.” 377 F.3d at
984-985 (footnote omitted).

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 — and presumably an even smaller percentage are denied on the
basis of the racial guidelines, given that other [*60]  factors may
lead to a denial. McFarland I, 330 F. Supp. 2d, at 844-845, nn. 16, 18.
Jefferson County estimates that the racial guidelines account for only 3
percent of assignments. Brief in Opposition in No. 05-915, p. 7, n. 4; Tr. of
Oral Arg. in No. 05-915, at 46. As Jefferson County explains, “the racial
guidelines have minimal impact in this process, because they ‘mostly influence
student assignment in subtle and indirect ways.'” Brief for Respondents in
No. 05-915, pp. 8-9.

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. See 539
U.S., at 320, 123 S. Ct. 2325, 156 L. Ed. 2d 304. 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 [*61]  within the 15-50%
range.'” Brief in Opposition in No. 05-915, at 7 (quoting McFarland I,
supra, at 842). 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, supra, at 339, 123 S. Ct. 2325, 156 L. Ed.
2d 304, 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. See, e.g., App. in No. 05-908, at 224a-225a,
253a-259a, 307a. 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.
Brief for Respondents in No. 05-915, at 8-9. Compare Croson, 488 U.S.,
at 519, 109 S. Ct. 706, 102 L. Ed. 2d 854 [*62]  (KENNEDY, J.,
concurring in part and concurring in judgment) (racial classifications
permitted only “as a last resort”).

IV

JUSTICE BREYER’s dissent takes a different approach to these cases, one that
fails to ground the result it would reach in law. Instead, it selectively
relies on inapplicable precedent and even dicta while dismissing contrary
holdings, alters and misapplies our well-established legal framework for
assessing equal protection challenges to express racial classifications, and
greatly exaggerates the consequences of today’s decision.

To begin with, JUSTICE BREYER seeks to justify the plans at issue under our
precedents recognizing the compelling interest in remedying past intentional
discrimination. See post, at 18-24. Not even the school districts go
this far, and for good reason. The distinction between segregation by state
action and racial imbalance caused by other factors has been central to our
jurisprudence in this area for generations. See, e.g., Milliken,
433 U.S., at 280, n. 14, 97 S. Ct. 2749, 53 L. Ed. 2d 745; Freeman, 503
U.S., at 495-496, 112 S. Ct. 1430, 118 L. Ed. 2d 108 (“Where resegregation
is a product not of state action but of private choices, it does not have
constitutional [*63]  implications”). The dissent elides this
distinction between de jure and de facto segregation, casually
intimates that Seattle’s school attendance patterns reflect illegal
segregation, post, at 5, 18, 23, n15 and fails to credit the judicial
determination — under the most rigorous standard — that Jefferson County had
eliminated the vestiges of prior segregation. The dissent thus alters in
fundamental ways not only the facts presented here but the established law.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n15 JUSTICE BREYER makes much of the fact that in 1978 Seattle
“settled” an NAACP complaint alleging illegal segregation with the
federal Office for Civil Rights (OCR). See post, at 5, 8-9, 18, 23. The
memorandum of agreement between Seattle and OCR, of course, contains no
admission by Seattle that such segregation ever existed or was ongoing at the
time of the agreement, and simply reflects a “desire to avoid the incovenience
[sic] and expense of a formal OCR investigation,” which OCR was
obligated under law to initiate upon the filing of such a complaint. Memorandum
of Agreement between Seattle School District No. 1 of King County, Washington,
and the Office for Civil Rights, United States Department of Health, Education,
and Welfare 2 (June 9, 1978); see also 45 CFR § 80.7(c) (2006).
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –
– [*64]

JUSTICE BREYER’s reliance on McDaniel v. Barresi, 402 U.S. 39, 91
S. Ct. 1287, 28 L. Ed. 2d 582 (1971), post, at 23-24, 29-30, highlights
how far removed the discussion in the dissent is from the question actually
presented in these cases. McDaniel concerned a Georgia school system
that had been segregated by law. There was no doubt that the county had
operated a “dual school system,” McDaniel, supra, at
41, 91 S. Ct. 1287, 28 L. Ed. 2d 582, and no one questions that the obligation
to disestablish a school system segregated by law can include race-conscious
remedies — whether or not a court had issued an order to that effect. See supra,
at 12. The present cases are before us, however, because the Seattle school
district was never segregated by law, and the Jefferson County district has
been found to be unitary, having eliminated the vestiges of its prior dual
status. The justification for race-conscious remedies in McDaniel is
therefore not applicable here. The dissent’s persistent refusal to accept this
distinction — its insistence on viewing the racial classifications here as if
they were just like the ones in McDaniel, “devised to overcome a
history of segregated public schools,”  [*65]  post, at
47 — explains its inability to understand why the remedial justification for
racial classifications cannot decide these cases.

JUSTICE BREYER’s dissent next relies heavily on dicta from Swann v. Charlotte-Mecklenburg
Bd. of Ed.
, 402 U.S., at 16, 91 S. Ct. 1267, 28 L. Ed. 2d 554 — far more
heavily than the school districts themselves. Compare post, at 3, 22-28,
with Brief for Respondents in No. 05-908, at 19-20; Brief for Respondents in
No. 05-915, at 31. 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.
Initially, as the Court explained just last Term, “we are not bound to
follow our dicta in a prior case in which the point now at issue was not fully
debated.” Central Va. Community College v. Katz, 546 U.S.
356, 363, 126 S. Ct. 990, 163 L. Ed. 2d 945 (2006). That is particularly true
given that, when Swann was decided, this Court had not yet confirmed
that strict scrutiny applies to racial classifications like those before us. See
n. 16, infra. There is nothing “technical” or
“theoretical,  [*66]  ” post, at 30, about our
approach to such dicta. See, e.g., Cohens v. Virginia, 19 U.S.
264, 6 Wheat. 264, 399-400, 5 L. Ed. 257 (1821) (Marshall, C. J.) (explaining
why dicta is not binding).

JUSTICE BREYER would not only put such extraordinary weight on admitted dicta,
but relies on the statement for something it does not remotely say. Swann
addresses only a possible state objective; it says nothing of the permissible means
— race conscious or otherwise — that a school district might employ to
achieve that objective. The reason for this omission is clear enough, since the
case did not involve any voluntary means adopted by a school district. The
dissent’s characterization of Swann as recognizing that “the Equal
Protection Clause permits local school boards to use race-conscious criteria to
achieve positive race-related goals” is — at best — a dubious inference.
Post, at 22. Even if the dicta from Swann were entitled to the
weight the dissent would give it, and no dicta is, it not only did not address
the question presented in Swann, it also does not address the question
presented in these cases — whether the school districts’ use of racial
classifications [*67]  to achieve their stated goals is permissible.

Further, for all the lower court cases JUSTICE BREYER cites as evidence of the
“prevailing legal assumption” embodied by Swann, very few are
pertinent. Most are not. For example, the dissent features Tometz v. Board
of Ed., Waukegan City School Dist. No. 61
, 39 Ill. 2d 593, 596-598, 237
N.E.2d 498, 500-502 (1968), an Illinois decision, as evidence that “state
and federal courts had considered the matter settled and uncontroversial.”
Post, at 25. But Tometz addressed a challenge to a statute
requiring race-consciousness in drawing school attendance boundaries — an
issue well beyond the scope of the question presented in these cases.
Importantly, it considered that issue only under rational-basis review, 39 Ill.
2d, at 600, 237 N. E. 2d, at 502 (“The test of any legislative
classification essentially is one of reasonableness”), which even the
dissent grudgingly recognizes is an improper standard for evaluating express
racial classifications. Other cases cited are similarly inapplicable. See, e.g.,
Citizens for Better Ed. v. Goose Creek Consol. Independent School
Dist.
, 719 S.W.2d 350, 352-353 (Tex. App. 1986) [*68]  (upholding
rezoning plan under rational-basis review). n16

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n16 In fact, all the cases JUSTICE BREYER’s dissent cites as evidence of the
“prevailing legal assumption,” see post, at 25-27, were
decided before this Court definitively determined that “all racial
classifications . . . must be analyzed by a reviewing court under strict
scrutiny.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200,
227, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995). Many proceeded under the
now-rejected view that classifications seeking to benefit a disadvantaged
racial group should be held to a lesser standard of review. See, e.g., Springfield
School Comm.
v. Barksdale, 348 F.2d 261, 266 (CA1 1965). Even if
this purported distinction, which JUSTICE STEVENS would adopt, post, at
2, n. 3 (dissenting opinion), had not been already rejected by this Court, the
distinction has no relevance to these cases, in which students of all races are
excluded from the schools they wish to attend based solely on the racial
classifications. See, e.g., App. in No. 05-908, at 202a (noting that 89
nonwhite students were denied assignment to a particular school by operation of
Seattle’s racial tiebreaker).

JUSTICE STEVENS’s reliance on School Comm. of Boston v. Board of Ed.,
352 Mass. 693, 227 N.E.2d 729 (1967), appeal dism’d, 389 U.S. 572, 88 S. Ct.
692, 19 L. Ed. 2d 778 (1968) (per curiam), post, at 3-5, is
inapposite for the same reason that many of the cases cited by JUSTICE BREYER
are inapposite; the case involved a Massachusetts law that required school
districts to avoid racial imbalance in schools but did not specify how to
achieve this goal — and certainly did not require express racial
classifications as the means to do so. The law was upheld under rational-basis
review, with the state court explicitly rejecting the suggestion — which is
now plainly the law — that “racial group classifications bear a far
heavier burden of justification.” 352 Mass., at 700, 227 N. E. 2d, at 734
(internal quotation marks and citation omitted). The passage JUSTICE STEVENS
quotes proves our point; all the quoted language says is that the school
committee “shall prepare a plan to eliminate the imbalance.” Id.,
at 695, 227 N. E. 2d, at 731; see post, at 4, n. 5. Nothing in the
opinion approves use of racial classifications as the means to address the
imbalance. The suggestion that our decision today is somehow inconsistent with
our disposition of that appeal is belied by the fact that neither the lower
courts, the respondent school districts, nor any of their 51 amici saw
fit even to cite the case. We raise this fact not to argue that the dismissal
should be afforded any different stare decisis effect, but rather simply
to suggest that perhaps — for the reasons noted above — the dismissal does
not mean what JUSTICE STEVENS believes it does.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –
– [*69]

JUSTICE BREYER’s dissent next looks for authority to a footnote in Washington
v. Seattle School Dist. No. 1, 458 U.S. 457, 472, n. 15, 102 S. Ct.
3187, 73 L. Ed. 2d 896 (1982), post, at 56-57, but there this Court
expressly noted that it was not passing on the propriety of
race-conscious student assignments in the absence of a finding of de jure
segregation. Similarly, the citation of Crawford v. Board of Ed. of
Los Angeles
, 458 U.S. 527, 102 S. Ct. 3211, 73 L. Ed. 2d 948 (1982), post,
at 24, in which a state referendum prohibiting a race-based assignment plan was
challenged, is inapposite — in Crawford the Court again expressly
reserved the question presented by these cases. 458 U.S., at 535, n. 11,
102 S. Ct. 3211, 73 L. Ed. 2d 948. Such reservations and preliminary analyses
of course did not decide the merits of this question — as evidenced by the
disagreement among the lower courts on this issue. Compare Eisenberg,
197 F.3d at 133, with Comfort, 418 F.3d at 13.

JUSTICE BREYER’s dissent also asserts that these cases are controlled by Grutter,
claiming that the existence of a compelling interest in these cases
“follows a fortiori” from Grutter, post, at 41,
[*70]  64-66, and accusing us of tacitly overruling that case, see post,
at 64-66. 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,” 539 U.S., at 330, 123 S. Ct.
2325, 156 L. Ed. 2d 304. 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. 539 U.S., at
324-325, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (internal quotation marks omitted).
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, post, at 47, when the Court in Grutter
stated that “the importance of . . . individualized consideration” in
the program was [*71]  “paramount,” and consideration of
race was one factor in a “highly individualized, holistic review.”
539 U.S., at 337, 123 S. Ct. 2325, 156 L. Ed. 2d 304. 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. See post,
at 65-66.

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, see post,
at 31-33, 35-36, arguing that a different standard of review should be applied
because the districts use race for beneficent rather than malicious purposes,
see post, at 31-36.

This Court has recently reiterated, however, that “‘all racial
classifications [imposed by government] . . . must be analyzed by a reviewing
court under strict scrutiny.'” Johnson, 543 U.S., at 505, 125 S.
Ct. 1141, 160 L. Ed. 2d 949 (quoting [*72]  Adarand, 515 U.S.,
at 227, 115 S. Ct. 2097, 132 L. Ed. 2d 158; emphasis added by Johnson
Court). See also Grutter, supra, at 326, 123 S. Ct. 2325, 156 L.
Ed. 2d 304 (“Governmental action based on race — a group classification
long recognized as in most circumstances irrelevant and therefore prohibited —
should be subjected to detailed judicial inquiry” (internal quotation
marks and emphasis omitted)). JUSTICE BREYER nonetheless relies on the good
intentions and motives of the school districts, stating that he has found
“no case that . . . repudiated this constitutional asymmetry between that
which seeks to exclude and that which seeks to include members of
minority races.” Post, at 29 (emphasis in original). We have found
many. Our cases clearly reject the argument that motives affect the strict
scrutiny analysis. See Johnson, supra, at 505, 125 S. Ct. 1141,
160 L. Ed. 2d 949 (“We have insisted on strict scrutiny in every context,
even for so-called ‘benign’ racial classifications”); Adarand, 515
U.S., at 227, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (rejecting idea that
“‘benign'” racial classifications may be held to “different
standard”); Croson, 488 U.S., at 500, 109 S. Ct. 76, 102 L. Ed. 2d
854 (“Racial classifications are suspect, and that means
that [*73]  simple legislative assurances of good intention cannot
suffice”).

This argument that different rules should govern racial classifications
designed to include rather than exclude is not new; it has been repeatedly
pressed in the past, see, e.g., Gratz, 539 U.S., at 282, 123 S.
Ct. 2411, 156 L. Ed. 2d 257 (BREYER, J., concurring in judgment); id.,
at 301, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (GINSBURG, J., dissenting); Adarand,
supra, at 243, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (STEVENS, J.,
dissenting); Wygant, 476 U.S., at 316-317, 106 S. Ct. 1842, 90 L. Ed. 2d
260 (STEVENS, J., dissenting), and has been repeatedly rejected. See also Bakke,
438 U.S., at 289-291, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (opinion of Powell, J.)
(rejecting argument that strict scrutiny should be applied only to
classifications that disadvantage minorities, stating “racial and ethnic
distinctions of any sort are inherently suspect and thus call for the most
exacting judicial examination”).

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 . . . . ‘Benign’
carries [*74]  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, 497 U.S., at 609-610, 110 S. Ct.
2997, 111 L. Ed. 2d 445 (O’Connor, J., dissenting). See also Adarand, supra,
at 226, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (“‘It may not always be clear
that a so-called preference is in fact benign'” (quoting Bakke, supra,
at 298, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (opinion of Powell, J.))). Accepting
JUSTICE BREYER’s approach would “do no more than move us from ‘separate
but equal’ to ‘unequal but benign.'” Metro Broadcasting, supra,
at 638, 110 S. Ct. 2997, 111 L. Ed. 2d 445 (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. See post, at 28-29.
Again, this approach to racial classifications is fundamentally at odds with
our precedent, which makes clear that the Equal Protection Clause
“protects persons, not groups,” Adarand, 515
U.S., at 227, 110 S. Ct. 2997, 111 L. Ed. 2d 445 (emphasis in original). See ibid.
(“All governmental [*75]  action based on race — a group
classification long recognized as ‘in most circumstances irrelevant and
therefore prohibited,’ Hirabayashi [v. United States, 320 U.S. 81, 100,
63 S. Ct. 1375, 87 L. Ed. 1774 (1943)] — should be subjected to detailed
judicial inquiry to ensure that the personal right to equal protection
of the laws has not been infringed” (first emphasis in original); Metro
Broadcasting
, supra, at 636, 110 S. Ct. 2997, 111 L. Ed. 2d 445
(“Our Constitution protects each citizen as an individual, not as a member
of a group” (KENNEDY, J., dissenting)); Bakke, supra, at
289, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (opinion of Powell, J.) (Fourteenth Amendment
creates rights “guaranteed to the individual. The rights established are
personal rights”). This fundamental principle goes back, in this context,
to Brown itself. See Brown v. Board of Education, 349 U.S.
294, 300, 75 S. Ct. 753, 99 L. Ed. 1083, 71 Ohio Law Abs. 584 (1955) (Brown
II
) (“At stake is the personal interest of the plaintiffs in
admission to public schools . . . on a nondiscriminatory basis” (emphasis
added)). For the dissent, in contrast, “‘individualized scrutiny’ is
simply beside the point.” Post, at 55.

JUSTICE BREYER’s position comes down to a familiar [*76]  claim: The
end justifies the means. He admits that “there is a cost in applying ‘a
state-mandated racial label,'” post, at 67, but he is confident
that the cost is worth paying. Our established strict scrutiny test for racial
classifications, however, insists on “detailed examination, both as to
ends and as to means.” Adarand, supra, at 236, 110 S.
Ct. 2997, 111 L. Ed. 2d 445 (emphasis added). Simply because the school
districts may seek a worthy goal does not mean they are free to discriminate on
the basis of race to achieve it, or that their racial classifications should be
subject to less exacting scrutiny.

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,” post,
at 36, JUSTICE BREYER still purports to apply strict scrutiny to these cases.
See post, at 37. 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 [*77]  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.” Post, at 46. n17 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.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n17 JUSTICE BREYER also tries to downplay the impact of the racial assignments
by stating that in Seattle “students can decide voluntarily to transfer to
a preferred district high school (without any consideration of race-conscious
criteria).” Post, at 46. This presumably refers to the district’s
decision to cease, for 2001-2002 school year assignments, applying the racial
tiebreaker to students seeking to transfer to a different school after ninth
grade. See App. in No. 05-908, at 137a-139a. There are obvious disincentives
for students to transfer to a different school after a full quarter of their
high school experience has passed, and the record sheds no light on how
transfers to the oversubscribed high schools are handled.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –
– [*78]

In keeping with his view that strict scrutiny should not apply, JUSTICE BREYER
repeatedly urges deference to local school boards on these issues. See, e.g.,
post, at 21, 48-49, 66. 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,
543 U.S., at 506, n. 1, 125 S. Ct 1141, 160 L. Ed. See Croson, 488 U.S.,
at 501, 109 S. Ct. 706, 102 L. Ed. 2d 854 (“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”); West Virginia Bd. of Ed. v. Barnette,
319 U.S. 624, 637, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943) (“The Fourteenth
Amendment . . . protects the citizen against the State itself and all of its
creatures — Boards of Education not excepted”).

JUSTICE BREYER’s dissent ends on an unjustified note of alarm. It predicts that
today’s decision “threatens” the validity of “hundreds of state
and federal statutes and regulations.” Post, at 61; see also post,
at 27-28. But the examples the dissent mentions — for example, a provision of
the No Child Left [*79]  Behind Act that requires States to set
measurable objectives to track the achievement of students from major racial
and ethnic groups, 20 U.S.C. § 6311(b)(2)(C)(v) — have nothing to do with the
pertinent issues in these cases.

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. Post,
at 58-62. 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 [*80]  — classifying individual students on the
basis of their race and discriminating among them on that basis.

* * *

If the need for the racial classifications embraced by the school districts is
unclear, even on the districts’ own terms, the costs are undeniable.
“Distinctions between citizens solely because of their ancestry are by
their very nature odious to a free people whose institutions are founded upon
the doctrine of equality.” Adarand, 515 U.S., at 214, 115 S. Ct.
2097, 132 L. Ed. 2d 158 (internal quotation marks omitted). Government action
dividing us by race is inherently suspect because such classifications promote
“notions of racial inferiority and lead to a politics of racial
hostility,” Croson, supra, at 493, 109 S. Ct. 706, 102 L.
Ed. 2d 854, “reinforce the belief, held by too many for too much of our
history, that individuals should be judged by the color of their skin,” Shaw
v. Reno, 509 U.S. 630, 657, 113 S. Ct. 2816, 125 L. Ed. 2d 511 (1993),
and “endorse race-based reasoning and the conception of a Nation divided
into racial blocs, thus contributing to an escalation of racial hostility and
conflict.” Metro Broadcasting, 497 U.S., at 603, 110 S. Ct. 2997,
111 L. Ed. 2d 445 (O’Connor, J., dissenting). As the Court explained in Rice
v. Cayetano, 528 U.S. 495, 517, 120 S. Ct. 1044, 145 L. Ed. 2d 1007
(2000), [*81]  “one of the principal reasons race is treated as
a forbidden classification is that it demeans the dignity and worth of a person
to be judged by ancestry instead of by his or her own merit and essential
qualities.”

All this is true enough in the contexts in which these statements were made —
government contracting, voting districts, allocation of broadcast licenses, and
electing state officers — but when it comes to using race to assign children
to schools, history will be heard. In Brown v. Board of Education,
347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954) (Brown I), we held
that segregation deprived black children of equal educational opportunities
regardless of whether school facilities and other tangible factors were equal,
because government classification and separation on grounds of race themselves
denoted inferiority. Id., at 493-494, 74 S. Ct. 686, 98 L. Ed. 873. It
was not the inequality of the facilities but the fact of legally separating
children on the basis of race on which the Court relied to find a
constitutional violation in 1954. See id., at 494, 74 S. Ct. 686, 98 L.
Ed. 873 (“‘The impact [of segregation] is greater when it has the sanction
of the law'”). The next Term, we accordingly [*82]  stated that
“full compliance” with Brown I required school districts
“to achieve a system of determining admission to the public schools on
a nonracial basis
.” Brown II, 349 U.S., at 300-301, 75 S. Ct.
753, 99 L. Ed. 1083 (emphasis added).

The parties and their amici debate which side is more faithful to the
heritage of Brown, but the position of the plaintiffs in Brown
was spelled out in their brief and could not have been clearer: “The
Fourteenth Amendment prevents states from according differential treatment to
American children on the basis of their color or race.” Brief for
Appellants in Nos. 1, 2, and 4 and for Respondents in No. 10 on Reargument in Brown
I
, O. T. 1953, p. 15 (Summary of Argument). What do the racial
classifications at issue here do, if not accord differential treatment on the
basis of race? As counsel who appeared before this Court for the plaintiffs in Brown
put it: “We have one fundamental contention which we will seek to develop
in the course of this argument, and that contention is that no State has any
authority under the equal-protection clause of the Fourteenth Amendment to use
race as a factor in affording educational opportunities among [*83]
its citizens.” Tr. of Oral Arg. in Brown I, p. 7 (Robert L. Carter,
Dec. 9, 1952). There is no ambiguity in that statement. And it was that
position that prevailed in this Court, which emphasized in its remedial opinion
that what was “at stake is the personal interest of the plaintiffs in
admission to public schools as soon as practicable on a nondiscriminatory
basis
,” and what was required was “determining admission to the
public schools on a nonracial basis.” Brown II, supra,
at 300-301, 75 S. Ct. 753, 99 L. Ed. 1083 (emphasis added). What do the racial
classifications do in these cases, if not determine admission to a public
school on a racial basis?

Before Brown, schoolchildren were told where they could and could not go
to school based on the color of their skin. The school districts in these cases
have not carried the heavy burden of demonstrating that we should allow this
once again — even for very different reasons. 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,”  [*84]  Brown II, 349 U.S., at 300-301, 75 S. Ct.
753, 99 L. Ed. 1083, is to stop assigning students on a racial basis. The way
to stop discrimination on the basis of race is to stop discriminating on the
basis of race.

The judgments of the Courts of Appeals for the Sixth and Ninth Circuits are
reversed, and the cases are remanded for further proceedings.

It is so ordered.

APPENDIXES TO OPINION OF BREYER, J.

A

Resegregation Trends

Percentage of Black Students in 90-100 Percent Nonwhite and Majority
Nonwhite Public Schools by Region, 1950-1954 to 2000, Fall Enrollment

[SEE TABLE IN ORIGINAL]

Source: C. Clotfelter, After Brown: The Rise and Retreat of School
Desegregation 56 (2004) (Table 2.1).

Changes in the Percentage of White Students in Schools Attended by the
Average Black Student by State, 1970-2003 (includes States with 5% or greater
enrollment of black students in 1970 and 1980)

[SEE TABLE IN ORIGINAL]

Source: G. Orfield & C. Lee, Racial Transformation and the Changing Nature
of Segregation 18 (Table 8) (Jan. 2006), (Civil Rights Project), online at
http://www.civilrightspro ject.harvard.edu/research/deseg/Racial_Transformation.pdf.

Percentage  [*85]  of White Students in Schools Attended by
the Average Black Student, 1968-2000

[SEE GRAPH IN ORIGINAL]

Source: Modified from E. Frankenberg, C. Lee, & G. Orfield, A Multiracial
Society with Segregated Schools: Are We Losing the Dream?, p. 30, fig. 5 (Jan.
2003), online at
http://www.civilrightsproject.harvard.edu.offcampus.lib.washington.edu/
research / reseg03 /Are WeLosingtheDream.pdf (Frankenberg, Lee, & Orfield)
(using U.S. Dept. of Education and National Center for Education Statistics
Common Core data).

Percentage of Students in Minority Schools by Race, 2000-2001

[SEE GRAPH IN ORIGINAL]

Source: Id., at 28, fig. 4.

B

Sources for Parts I-A and I-B

Part I-A: Seattle
Section 1. Segregation
P1 C. Schmid & W. McVey, Growth and Distribution of Minority Races in
Seattle, Washington, 3, 7-9 (1964); F. Hanawalt & R. Williams, The History
of Desegregation in Seattle Public Schools, 1954-1981, pp. 1-7 (1981)
(hereinafter Hanawalt); Taylor, The Civil Rights Movement in the American West:
Black Protest in Seattle, 1960-1970, 80 J. Negro Hist. 1, 2-3 (1995); A.
Siqueland, Without A Court Order: The Desegregation of Seattle’s Schools 10
(1981) (hereinafter Siqueland);  [*86]  D. Pieroth, Desegregating the
Public Schools, Seattle, Washington, 1954-1968, p. 6 (Dissertation Draft 1979)
(hereinafter Pieroth).

Section 2. Preliminary Challenges, 1956 to 1969
P1 Pieroth 32, 41; Hanawalt 4.
P2 Hanawalt 11-13.
P3 Id., at 5, 13, 27.

Section 3. The NAACP’s First Legal Challenge and Seattle’s Response, 1969 to
1977

P1 Complaint in Adams v. Forbes Bottomly, Civ. No. 6704 (WD
Wash., 1969), pp. 10-11.
P2 Id., at 10, 14-15.
P3 Planning and Evaluation Dept., Seattle Public Schools, The Plan Adopted by the
Seattle School Board to Desegregate Fifth, Sixth, Seventh, and Eighth Grade
Pupils in the Garfield, Lincoln, and Roosevelt High School Districts by
September, 1971, pp. 6, 11 (on file with the University of Washington Library);
see generally Siqueland 12-15; Hanawalt 18-20.

P4 Siqueland 5, 7, 21.
Section 4. The NAACP’s Second Legal Challenge, 1977
P1 Administrative Complaint in Seattle Branch, NAACP v. Seattle
School Dist. No. 1
, pp. 2-3 (OCR, Apr. 22, 1977) (OCR Complaint) (filed
with Court as Exhibit in Seattle School Dist. No. 1, 458 U.S. 457, 102
S. Ct. 3187, 73 L. Ed. 2d 896); see generally Siqueland [*87]  23-24.
P2 Memorandum of Agreement between Seattle School District No. 1 of King Cty.,
Washington, and the OCR (June 9, 1978) (filed with the Court as Exh. A to Kiner
Affidavit in Seattle School Dist. No. 1, supra.

Section 5. The Seattle Plan: Mandatory Busing, 1978 to 1988
P1 See generally Seattle School Dist. No. 1, supra, at 461, 102
S. Ct. 3187, 73 L. Ed. 2d 896; Seattle Public Schools Desegregation Planning
Office, Proposed Alternative Desegregation Plans: Options for Eliminating
Racial Imbalance by the 1979-80 School Year (Sept. 1977) (filed with the Court
as Exh. B to Roe Affidavit in Seattle School Dist. No. 1, supra);
Hanawalt 36-38, 40; Siqueland 3, 184, Table 4.
P2 Id., at 151-152; Hanawalt 37-38; Seattle School Dist. No. 1, supra,
at 461, 102 S. Ct. 3187, 73 L. Ed. 2d 896; Complaint and Motion to Dismiss
or Affirm in Seattle School Dist. No. 1, supra.
P3 Seattle School Dist. No. 1, supra, at 461, 102 S. Ct. 3187, 73 L. Ed.
2d 896; Hanawalt 40.
P4 See generally Seattle School Dist. No. 1, supra.

Section 6. Student Choice, 1988 to 1998
P1 L. Kohn, Priority Shift: The Fate of Mandatory Busing for School
Desegregation in Seattle and the Nation 27-30, 32 [*88]  (Mar. 1996).
P2 Id., at 32-34.

Section 7. The Current Plan, 1999 to the Present
P1 App. in No. 05-908, p. 84a; Brief for Respondents in No. 05-908, pp. 5-7;
426 F.3d 1162, 1169-1170 (CA9 2005) (en banc) (Parents Involved VII).
P2 App. in No. 05-908, at 39-42; Research, Evaluation and Assessment, Student
Information Services Office, Seattle Public Schools Data Profile:
DistrictSummary December 2005, online at http://www.seattleschools.org/
area/siso/disprof/2005/DP05all.pdf; Brief for Respondents in No. 05-908, at
9-10, 47; App. in No. 05-908, at 309a; School Board Report, School Choices and
Assignments 2005-2006 School Year (Apr. 2005), online at http://
www.seattleschools.org/ area/ facilties-plan/ Choice/ 05- 06AppsChoicesBoardApril2005final.pdf.
P3 Parents Involved in Community Schools v. Seattle School Dist., No.
1
, 149 Wn. 2d 660, 72 P. 3d 151 (2003); 137 F. Supp. 2d 1224 (2001); 426
F.3d 1162 (CA9 2005) (en banc) (Parents Involved VII).

Part I-B: Louisville
Section 1. Before the Lawsuit, 1954 to 1972
P1 Hampton v. Jefferson Cty., Bd. of Ed., 72 F. Supp. 2d 753,
756, and nn. 2, 4, 5 (WD Ky. 1999)  [*89]  (Hampton I).

Section 2. Court-Imposed Guidelines and Busing, 1972 to 1991
P1 Hampton I, supra, at 757-758, 762; Newburg Area Council,
Inc.
v. Board of Ed. of Jefferson Cty., 489 F.2d 925 (CA6 1973),
vacated and remanded, 418 U.S. 918, 94 S. Ct. 3208, 41 L. Ed. 2d 1160 (1974),
reinstated with modifications, 510 F.2d 1358 (CA6 1974) (per curiam);
Judgment and Findings of Fact and Conclusions of Law in Newburg Area
Council, Inc.
v. Board of Ed., of Jefferson Cty., Nos. 7045 and 7291
(WD Ky., July 30, 1975) (1975 Judgment and Findings).
P2 Id., at 2, 3, and Attachment 1.
P3 Id., at 4-16.
P4 Memorandum Opinion and Order in Haycraft v. Board of Ed. of
Jefferson Cty.
, Nos. 7045 and 7291, (WD Ky., June 16, 1978), pp. 1, 2, 4,
18 (1978 Memo & Order).
P5 Memorandum Opinion and Order, Haycraft v. Board of Ed. of Jefferson
Cty., Nos. 7045 and 7291 (WD Ky., Sept. 24, 1985), p. 3; Memorandum from Donald
W. Ingwerson, Superintendent, to the Board of Education, Jefferson Cty. Public
School Dist., pp. 1, 3, 5 (Apr. 4, 1984) (1984 Memorandum); Memorandum from
Donald W. Ingwerson, Superintendent, to the [*90]  Board of
Education, Jefferson County Public School District, pp. 4-5 (Dec. 19, 1991)
(1991 Memorandum).

Section 3. Student Choice and Project Renaissance, 1991 to 1996
P1 1991 Memorandum 1-4, 7-11 (Stipulated Exh. 72); Brief for Respondents in No.
05-915, P. 12, n. 13.
P2 1991 Memorandum 14-16.
P3 Id., at 11, 14-15.
P4 Id., at 15-16; Memorandum from Stephen W. Daeschner, Superintendent,
to the Board of Education, Jefferson Cty. Public School Dist., p. 2 (Aug. 6,
1996) (1996 Memorandum).

Section 4. The Current Plan: Project Renaissance Modified, 1996 to 2003
P1 1996 Memorandum 1-4; Brief for Respondents in No. 05-915, at 12, and n. 13.
P2 1996 Memorandum 4-7, and Attachment 2; Hampton I, supra, at
768.
P3 1996 Memorandum 5-8; Hampton I, supra, at 768, n. 30.
P4 Hampton v. Jefferson Cty. Bd. of Ed., 102 F. Supp. 2d 358,
359, 363, 370, 377 (WD Ky. 2000) (Hampton II).
P5 Id., at 380-381.

Section 5. The Current Lawsuit, 2003 to the Present
P1 McFarland v. Jefferson Cty. Public Schools, 330 F. Supp. 2d
834 (WD Ky. 2004); McFarland v. Jefferson Cty. Public Schools,
416 F.3d 513 (2005); [*91]  Memorandum from Stephen W. Daeschner,
Superintendent, to the Board of Education, Jefferson Cty. Public School Dist.,
3-4 (Apr. 2, 2001).

CONCUR BY: THOMAS; KENNEDY

CONCUR: JUSTICE THOMAS, concurring.

Today, the Court holds that state entities may not experiment with race-based
means to achieve ends they deem socially desirable. I wholly concur in THE
CHIEF JUSTICE’s opinion. I write separately to address several of the
contentions in JUSTICE BREYER’s dissent (hereinafter the dissent). Contrary to
the dissent’s arguments, resegregation is not occurring in Seattle or
Louisville; these school boards have no present interest in remedying past
segregation; and these race-based student-assignment programs do not serve any
compelling state interest. Accordingly, the plans are unconstitutional.
Disfavoring a color-blind interpretation of the Constitution, the dissent would
give school boards a free hand to make decisions on the basis of race — an
approach reminiscent of that advocated by the segregationists in Brown v.
Board of Education, 347 U. S 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954).
This approach is just as wrong today as it was a half-century ago. The
Constitution and our cases require us to be [*92]  much more demanding
before permitting local school boards to make decisions based on race.

I

The dissent repeatedly claims that the school districts are threatened with
resegregation and that they will succumb to that threat if these plans are
declared unconstitutional. It also argues that these plans can be justified as
part of the school boards’ attempts to “eradicate earlier school
segregation.” See, e.g., post, at 4. Contrary to the
dissent’s rhetoric, neither of these school districts is threatened with resegregation,
and neither is constitutionally compelled or permitted to undertake race-based
remediation. Racial imbalance is not segregation, and the mere incantation of
terms like resegregation and remediation cannot make up the difference.

A

Because this Court has authorized and required race-based remedial measures to
address de jure segregation, it is important to define segregation
clearly and to distinguish it from racial imbalance. 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. of Ed.,
402 U.S. 1, 6, 91 S. Ct. 1267, 28 L. Ed. 2d 554 (1971); [*93]  see
also Monroe v. Board of Comm’rs of Jackson, 391 U.S. 450, 452, 88
S. Ct. 1700, 20 L. Ed. 2d 733 (1968). In Brown, this Court declared that
segregation was unconstitutional under the Equal Protection Clause of the
Fourteenth Amendment. Swann, supra, at 6, 91 S. Ct. 1267, 28 L.
Ed. 2d 554; see also Green v. County School Board, 391 U.S. 430,
435, 88 S. Ct. 1689, 20 L. Ed. 2d 716 (1968) (“The State, acting through
the local school board and school officials, organized and operated a dual
system, part ‘white’ and part ‘Negro.’ It was such dual systems that 14 years
ago Brown I[, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873,] held
unconstitutional and a year later Brown II[, 349 U.S. 294, 75 S. Ct.
753, 99 L. Ed. 1083, 71 Ohio Law Abs. 584 (1955)] held must be
abolished”). n1

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n1 In this Court’s paradigmatic segregation cases, there was a local ordinance,
state statute, or state constitutional provision requiring racial separation.
See, e.g., Brief for Petitioners in Bolling v. Sharpe, O.
T. 1952, No. 4, pp. 28-30 (cataloging state laws requiring separation of the
races); id., at App. A (listing “Statutory and Constitutional
Provisions in the States Where Segregation in Education is
Institutionalized”).
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –
– [*94]

Racial imbalance is the failure of a school district’s individual schools to
match or approximate the demographic makeup of the student population at large.
Cf. Washington v. Seattle School Dist. No. 1, 458 U.S. 457, 460,
102 S. Ct. 3187, 73 L. Ed. 2d 896 (1982). Racial imbalance is not segregation.
n2 Although presently observed racial imbalance might result from past de
jure
segregation, racial imbalance can also result from any number of
innocent private decisions, including voluntary housing choices. See Swann,
supra, at 25-26, 91 S. Ct. 1267, 28 L. Ed. 2d 554; Missouri v. Jenkins,
515 U.S. 70, 116, 115 S. Ct. 2038, 132 L. Ed. 2d 63 (1995) (THOMAS, J.,
concurring). Because racial imbalance is not inevitably linked to
unconstitutional segregation, it is not unconstitutional in and of itself. Dayton
Bd. of Ed.
v. Brinkman, 433 U.S. 406, 413, 97 S. Ct. 2766, 53 L. Ed.
2d 851 (1977); Dayton Bd. of Ed. v. Brinkman, 443 U.S. 526, 531,
n. 5, 99 S. Ct. 2971, 61 L. Ed. 2d 720 (1979) (“Racial imbalance . . . is
not per se a constitutional violation”); Freeman v. Pitts,
503 U.S. 467, 494, 112 S. Ct. 1430, 118 L. Ed. 2d 108 (1992); see also Swann,
supra, at 31-32, 91 S. Ct. 1267, 28 L. Ed. 2d 554; cf. Milliken
v. Bradley, 418 U.S. 717, 740-741, 94 S. Ct. 3112, 41 L. Ed. 2d 1069,
and n. 19 (1974). [*95]

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n2 The dissent refers repeatedly and reverently to “‘integration.'”
However, outside of the context of remediation for past de jure
segregation, “integration” is simply racial balancing. See post,
at 37. Therefore, the school districts’ attempts to further
“integrate” are properly thought of as little more than attempts to
achieve a particular racial balance.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

Although there is arguably a danger of racial imbalance in schools in Seattle
and Louisville, there is no danger of resegregation. No one contends that
Seattle has established or that Louisville has reestablished a dual school
system that separates students on the basis of race. The statistics cited in
Appendix A to the dissent are not to the contrary. See post, at 69-72.
At most, those statistics show a national trend toward classroom racial
imbalance. However, racial imbalance without intentional state action to
separate the races does not amount to segregation. To raise the specter of
resegregation to defend these programs is to ignore the [*96]
meaning of the word and the nature of the cases before us. n3

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n3 The dissent’s assertion that these plans are necessary for the school
districts to maintain their “hard-won gains” reveals its conflation
of segregation and racial imbalance. Post, at 38. For the dissent’s
purposes, the relevant hard-won gains are the present racial compositions in
the individual schools in Seattle and Louisville. However, the actual hard-won
gain in these cases is the elimination of the vestiges of the system of
state-enforced racial separation that once existed in Louisville. To equate the
achievement of a certain statistical mix in several schools with the
elimination of the system of systematic de jure segregation trivializes
the latter accomplishment. Nothing but an interest in classroom aesthetics and
a hypersensitivity to elite sensibilities justifies the school districts’
racial balancing programs. See Part II-B, infra. But “the principle
of inherent equality that underlies and infuses our Constitution” required
the disestablishment of de jure segregation. See Adarand
Constructors, Inc.
v. Pena, 515 U.S. 200, 240, 115 S. Ct. 2097, 132
L. Ed. 2d 158 (1995) (THOMAS, J., concurring in part and concurring in
judgment). Assessed in any objective manner, there is no comparison between the
two.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –
– [*97]

B

Just as the school districts lack an interest in preventing resegregation, they
also have no present interest in remedying past segregation. The Constitution
generally prohibits government race-based decisionmaking, but this Court has
authorized the use of race-based measures for remedial purposes in two narrowly
defined circumstances. First, in schools that were formerly segregated by law,
race-based measures are sometimes constitutionally compelled to remedy prior
school segregation. Second, in Croson, the Court appeared willing to
authorize a government unit to remedy past discrimination for which it was
responsible. Richmond v. J. A. Croson Co., 488 U.S. 469, 504, 109
S. Ct. 706, 102 L. Ed. 2d 854 (1989). Without explicitly resting on either of
these strands of doctrine, the dissent repeatedly invokes the school districts’
supposed interests in remedying past segregation. Properly analyzed, though,
these plans do not fall within either existing category of permissible
race-based remediation.

1

The Constitution does not permit race-based government decisionmaking simply
because a school district claims a remedial purpose and proceeds in good faith
with arguably pure motives. Grutter v. Bollinger, 539 U.S. 306,
371, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (2003) [*98]  (THOMAS, J.,
concurring in part and dissenting in part) (citing Adarand Constructors,
Inc.
v. Pena, 515 U.S. 200, 239, 115 S. Ct. 2097, 132 L. Ed. 2d 158
(1995) (SCALIA, J., concurring in part and concurring in judgment)). Rather,
race-based government decisionmaking is categorically prohibited unless
narrowly tailored to serve a compelling interest. Grutter, supra,
at 326, 371, 123 S. Ct. 2325, 156 L. Ed. 2d 304; see also Part II-A, infra.
This exacting scrutiny “has proven automatically fatal” in most
cases. Jenkins, supra, at 121, 115 S. Ct. 2038, 132 L. Ed. 2d 63
(THOMAS, J., concurring); cf. Hirabayashi v. United States, 320
U.S. 81, 100, 63 S. Ct. 1375, 87 L. Ed. 1774 (1943) (“Racial
discriminations are in most circumstances irrelevant and therefore
prohibited”). And appropriately so. “The Constitution abhors
classifications based on race, not only because those classifications can harm
favored races or are based on illegitimate motives, but also because every time
the government places citizens on racial registers and makes race relevant to
the provision of burdens or benefits, it demeans us all.” Grutter, supra,
at 353, 123 S. Ct. 2325, 156 L. Ed 2d 304 (opinion of THOMAS, J.). Therefore,
as a general rule, all race-based government decisionmaking [*99]  —
regardless of context — is unconstitutional.

2

This Court has carved out a narrow exception to that general rule for cases in
which a school district has a “history of maintaining two sets of schools
in a single school system deliberately operated to carry out a governmental
policy to separate pupils in schools solely on the basis of race.” n4 See Swann,
402 U.S., at 5-6, 91 S. Ct. 1267, 28 L. Ed. 2d 554. In such cases, race-based
remedial measures are sometimes required. n5 Green, 391 U.S., at
437-438, 88 S. Ct. 1689, 20 L. Ed. 2d 716; cf. United States v. Fordice,
505 U.S. 717, 745, 112 S. Ct. 2727, 120 L. Ed. 2d 575 (1992) (THOMAS, J.,
concurring). n6 But without a history of state-enforced racial separation, a
school district has no affirmative legal obligation to take race-based remedial
measures to eliminate segregation and its vestiges.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n4 The dissent makes much of the supposed difficulty of determining whether
prior segregation was de jure or de facto. See, e.g., post,
at 19-20. That determination typically will not be nearly as difficult as the
dissent makes it seem. In most cases, there either will or will not have been a
state constitutional amendment, state statute, local ordinance, or local
administrative policy explicitly requiring separation of the races. See, e.g.,
n. 1, supra. And even if the determination is difficult, it is one the
dissent acknowledges must be made to determine what remedies school districts
are required to adopt. Post, at 43. [*100]
n5 This Court’s opinion in McDaniel v. Barresi, 402 U.S. 39, 91
S. Ct. 1287, 28 L. Ed. 2d 582 (1971), fits comfortably within this framework.
There, a Georgia school board voluntarily adopted a desegregation plan. At the
time of Brown, v. Board of Education, 347 U.S. 483, 74 S. Ct.
686, 98 L. Ed. 873 (1954), Georgia’s Constitution required that “separate
schools shall be provided for the white and colored races.” Ga. Const.,
Art. VII, § 1, ch. 2-6401 (1948). Given that state law had previously required
the school board to maintain a dual school system, the county was obligated to
take measures to remedy its prior de jure segregation. This Court
recognized as much in its opinion, which stated that the school board had an
“affirmative duty to disestablish the dual school system.” McDaniel,
supra, at 41, 91 S. Ct. 1287, 28 L. Ed. 2d 582.

n6 As I have explained elsewhere, the remedies this Court authorized lower
courts to compel in early desegregation cases like Green and Swann
were exceptional. See Missouri v. Jenkins, 515 U.S. 70, 124-125,
115 S. Ct. 2038, 132 L. Ed. 2d 63 (1995), (THOMAS, J., concurring). Sustained
resistance to Brown prompted the Court to authorize extraordinary
race-conscious remedial measures (like compelled racial mixing) to turn the
Constitution’s dictate to desegregate into reality. 515 U.S., at 125, 115 S.
Ct. 2038, 132 L. Ed. 2d 63 (THOMAS, J., concurring). Even if these measures
were appropriate as remedies in the face of widespread resistance to Brown‘s
mandate, they are not forever insulated from constitutional scrutiny. Rather,
“such powers should have been temporary and used only to overcome the
widespread resistance to the dictates of the Constitution.” 515 U.S., at
125, 115 S. Ct. 2038, 132 L. Ed. 2d 63 (THOMAS, J., concurring).
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –
– [*101]

Neither of the programs before us today is compelled as a remedial measure, and
no one makes such a claim. Seattle has no history of de jure
segregation; therefore, the Constitution did not require Seattle’s plan. n7
Although Louisville once operated a segregated school system and was subject to
a Federal District Court’s desegregation decree, see ante, at 7; Hampton
v. Jefferson Cty. Bd. of Ed., 102 F. Supp. 2d 358, 376-377 (WD Ky.
2000), that decree was dissolved in 2000, id., at 360. Since then, no
race-based remedial measures have been required in Louisville. Thus, the
race-based student-assignment plan at issue here, which was instituted the year
after the dissolution of the desegregation decree, was not even arguably
required by the Constitution.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n7 Though the dissent cites every manner of complaint, record material, and
scholarly article relating to Seattle’s race-based student assignment efforts, post,
at 73-75, it cites no law or official policy that required separation of the
races in Seattle’s schools. Nevertheless, the dissent tries to cast doubt on
the historical fact that the Seattle schools were never segregated by law by
citing allegations that the National Association for the Advancement of Colored
People and other organizations made in court filings to the effect that
Seattle’s schools were once segregated by law. See post, at 7-9, 23.
These allegations were never proved and were not even made in this case. Indeed,
the record before us suggests the contrary. See App. in No. 05-908, pp. 214a,
225a, 257a. Past allegations in another case provide no basis for resolving
these cases.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –
– [*102]

3

Aside from constitutionally compelled remediation in schools, this Court has
permitted government units to remedy prior racial discrimination only in narrow
circumstances. See Wygant v. Jackson Bd. of Ed., 476 U.S. 267,
277, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (1986) (plurality opinion). Regardless
of the constitutional validity of such remediation, see Croson, supra,
at 524-525, 109 S. Ct. 706, 102 L. Ed. 2d 854 (SCALIA, J., concurring in
judgment), it does not apply here. Again, neither school board asserts that its
race-based actions were taken to remedy prior discrimination. Seattle provides
three forward-looking — as opposed to remedial — justifications for its
race-based assignment plan. Brief for Respondents in No. 05-908, pp. 24-34.
Louisville asserts several similar forward-looking interests, Brief for
Respondents in No. 05-915, pp. 24-29, and at oral argument, counsel for
Louisville disavowed any claim that Louisville’s argument “depended in any
way on the prior de jure segregation,” Tr. of Oral Arg. in No. 05-915, p.
38.

Furthermore, for a government unit to remedy past discrimination for which it
was responsible, the Court has required it to demonstrate “a ‘strong basis
in evidence for its conclusion [*103]  that remedial action was
necessary.'” Croson, 488 U.S., at 500, 109 S. Ct. 706, 102 L. Ed.
2d 854 (quoting Wygant, supra, at 277, 106 S. Ct. 1842, 90 L. Ed.
2d 26 (plurality opinion)). Establishing a “strong basis in evidence”
requires proper findings regarding the extent of the government unit’s past
racial discrimination. Croson, 488 U.S., at 504, 109 S. Ct. 706, 102 L.
Ed. 2d 854. The findings should “define the scope of any injury [and] the
necessary remedy,” id., at 505, 109 S. Ct. 706, 102 L. Ed. 2d 854,
and must be more than “inherently unmeasurable claims of past
wrongs,” id., at 506, 109 S. Ct. 706, 102 L. Ed. 2d 854. Assertions
of general societal discrimination are plainly insufficient. Id., at
499, 504, 109 S. Ct. 706, 102 L. Ed. 2d 854; Wygant, supra, at
274, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (plurality opinion); cf. Regents of
Univ. of Cal.
v. Bakke, 438 U.S. 265, 310, 98 S. Ct. 2733, 57 L. Ed.
2d 750 (1978) (opinion of Powell, J.). Neither school district has made any
such specific findings. For Seattle, the dissent attempts to make up for this
failing by adverting to allegations made in past complaints filed against the
Seattle school district. However, allegations in complaints cannot substitute
for specific findings of prior discrimination — even when those allegations
lead to settlements [*104]  with complaining parties. Cf. Croson,
supra, at 505, 109 S. Ct. 706, 102 L. Ed 2d 854; Wygant, supra,
at 279, n. 5, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (plurality opinion). As for
Louisville, its slate was cleared by the District Court’s 2000 dissolution
decree, which effectively declared that there were no longer any effects of de
jure
discrimination in need of remediation. n8

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n8 Contrary to the dissent’s argument, post, at 44, the Louisville
school district’s interest in remedying its past de jure segregation did
vanish the day the District Court found that Louisville had eliminated the
vestiges of its historic de jure segregation. See Hampton v. Jefferson
Cty. Bd. of Ed.,
102 F. Supp. 2d 358, at 360 (WD Ky. 2000). If there were
further remediation to be done, the District Court could not logically have
reached the conclusion that Louisville “had eliminated the vestiges
associated with the former policy of segregation and its pernicious
effects.” Ibid. Because Louisville could use race-based measures
only as a remedy for past de jure segregation, it is not
“incoherent,” post, at 56, to say that race-based
decisionmaking was allowed to Louisville one day — while it was still
remedying — and forbidden to it the next — when remediation was finished.
That seemingly odd turnaround is merely a result of the fact that the
remediation of de jure segregation is a jealously guarded exception to
the Equal Protection Clause’s general rule against government race-based
decisionmaking.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –
– [*105]

Despite the dissent’s repeated intimation of a remedial purpose, neither of the
programs in question qualifies as a permissible race-based remedial measure.
Thus, the programs are subject to the general rule that government race-based
decisionmaking is unconstitutional.

C

As the foregoing demonstrates, racial balancing is sometimes a constitutionally
permissible remedy for the discrete legal wrong of de jure segregation,
and when directed to that end, racial balancing is an exception to the general
rule that government race-based decisionmaking is unconstitutional. Perhaps for
this reason, the dissent conflates the concepts of segregation and racial
imbalance: If racial imbalance equates to segregation, then it must also be
constitutionally acceptable to use racial balancing to remedy racial imbalance.

For at least two reasons, however, it is wrong to place the remediation of segregation
on the same plane as the remediation of racial imbalance. First, as
demonstrated above, the two concepts are distinct. Although racial imbalance
can result from de jure segregation, it does not necessarily, and the
further we get from the era of state-sponsored racial separation, the
less [*106]  likely it is that racial imbalance has a traceable
connection to any prior segregation. See Freeman, 503 U.S., at 496, 112
S. Ct. 1430, 118 L. Ed. 2d 108; Jenkins, 515 U.S., at 118, 115 S. Ct.
2038, 132 L. Ed. 2d 63 (THOMAS, J., concurring).

Second, a school cannot “remedy” racial imbalance in the same way
that it can remedy segregation. Remediation of past de jure segregation
is a one-time process involving the redress of a discrete legal injury
inflicted by an identified entity. At some point, the discrete injury will be
remedied, and the school district will be declared unitary. See Swann,
402 U.S., at 31, 91 S. Ct. 1267, 28 L. Ed. 2d 554. Unlike de jure
segregation, there is no ultimate remedy for racial imbalance. Individual
schools will fall in and out of balance in the natural course, and the
appropriate balance itself will shift with a school district’s changing
demographics. Thus, racial balancing will have to take place on an indefinite
basis — a continuous process with no identifiable culpable party and no
discernable end point. In part for those reasons, the Court has never permitted
outright racial balancing solely for the purpose of achieving a particular
racial balance.

II

Lacking a cognizable interest in remediation,  [*107]  neither of
these plans can survive strict scrutiny because neither plan serves a genuinely
compelling state interest. The dissent avoids reaching that conclusion by
unquestioningly accepting the assertions of selected social scientists while
completely ignoring the fact that those assertions are the subject of fervent
debate. Ultimately, the dissent’s entire analysis is corrupted by the
considerations that lead it initially to question whether strict scrutiny
should apply at all. What emerges is a version of “strict scrutiny”
that combines hollow assurances of harmlessness with reflexive acceptance of
conventional wisdom. When it comes to government race-based decisionmaking, the
Constitution demands more.

A

The dissent claims that “the law requires application here of a standard
of review that is not ‘strict’ in the traditional sense of that word.” Post,
at 36. This view is informed by dissents in our previous cases and the
concurrences of two Court of Appeals judges. Post, at 34-36 (citing 426
F.3d 1162, 1193-1194 (CA9 2005) (Kozinski, J., concurring); Comfort v. Lynn
School Comm.,
418 F.3d 1, 28-29 (CA1 2005) (Boudin, C. J., concurring)).
[*108]  Those lower court judges reasoned that programs like these
are not “aimed at oppressing blacks” and do not “seek to give
one racial group an edge over another.” Comfort, supra, at
27 (Boudin, C. J., concurring); 426 F.3d at 1193 (Kozinski, J., concurring).
They were further persuaded that these plans differed from other race-based
programs this Court has considered because they are “certainly more benign
than laws that favor or disfavor one race, segregate by race, or create quotas
for or against a racial group,” Comfort, 418 F.3d at 28 (Boudin, C.
J., concurring), and they are “far from the original evils at which the
Fourteenth Amendment was addressed,” id., at 29; 426 F.3d at 1195
(Kozinski, J., concurring). Instead of strict scrutiny, Judge Kozinski would
have analyzed the plans under “robust and realistic rational basis review.”
Id., at 1194.

These arguments are inimical to the Constitution and to this Court’s
precedents. n9 We have made it unusually clear that strict scrutiny applies to every
racial classification. Adarand, 515 U.S., at 227, 115 S. Ct. 2097, 132
L. Ed 2d 158; Grutter, 539 U.S., at 326, 123 S. Ct. 2325, 156 L. Ed. 2d
304; [*109]  Johnson v. California, 543 U.S. 499, 505,
125 S. Ct. 1141, 160 L. Ed. 2d 949 (2005) (“We have insisted on strict
scrutiny in every context, even for so-called ‘benign’ racial classifications”).
n10 There are good reasons not to apply a lesser standard to these cases. The
constitutional problems with government race-based decisionmaking are not
diminished in the slightest by the presence or absence of an intent to oppress
any race or by the real or asserted well-meaning motives for the race-based
decisionmaking. Adarand, 515 U.S., at 228-229, 115 S. Ct. 2097, 132 L.
Ed 2d 158. Purportedly benign race-based decisionmaking suffers the same
constitutional infirmity as invidious race-based decisionmaking. Id., at
240, 115 S. Ct. 2097, 132 L. Ed 2d 158 (THOMAS, J., concurring in part and
concurring in judgment) (“As far as the Constitution is concerned, it is
irrelevant whether a government’s racial classifications are drawn by those who
wish to oppress a race or by those who have a sincere desire to help those
thought to be disadvantaged”).

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n9 The dissent’s appeal to stare decisis, post, at 65, is
particularly ironic in light of its apparent willingness to depart from these
precedents, post, at 36-37. [*110]
n10 The idea that government racial classifications must be subjected to strict
scrutiny did not originate in Adarand. As early as Loving v. Virginia,
388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967), this Court made clear
that government action that “rests solely upon distinctions drawn
according to race” had to be “subjected to the ‘most rigid
scrutiny.'” Id., at 11, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (quoting Korematsu
v. United States, 323 U.S. 214, 216, 65 S. Ct. 193, 89 L. Ed. 194
(1944)); see also McLaughlin v. Florida, 379 U.S. 184, 196, 85 S.
Ct. 283, 13 L. Ed. 2d 222 (1964) (requiring a statute drawing a racial
classification to be “necessary, and not merely rationally related, to
accomplishment of a permissible state policy”); id., at 197, 85 S.
Ct. 283, 13 L. Ed. 2d 222 (Harlan, J., concurring) (“The necessity test .
. . should be equally applicable in a case involving state racial
discrimination”).
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

Even supposing it mattered to the constitutional analysis, the race-based
student assignment programs before us are not as benign as the dissent
believes. See post, at 34-35. “Racial paternalism and its
unintended consequences can be as poisonous [*111]  and pernicious as
any other form of discrimination.” Adarand, supra, at 241,
115 S. Ct. 2097, 132 L. Ed. 2d 158 (opinion of THOMAS, J.). As these programs
demonstrate, every time the government uses racial criteria to “bring the
races together,” post, at 29, someone gets excluded, and the person
excluded suffers an injury solely because of his or her race. The petitioner in
the Louisville case received a letter from the school board informing her that
her kindergartener would not be allowed to attend the school of
petitioner’s choosing because of the child’s race. App. in No. 05-915, p. 97.
Doubtless, hundreds of letters like this went out from both school boards every
year these race-based assignment plans were in operation. This type of
exclusion, solely on the basis of race, is precisely the sort of government
action that pits the races against one another, exacerbates racial tension, and
“provokes resentment among those who believe that they have been wronged
by the government’s use of race.” Adarand, supra, at 241,
115 S. Ct. 2097, 132 L. Ed. 2d 158 (opinion of THOMAS, J.). Accordingly, these
plans are simply one more variation on the government race-based decisionmaking
we have consistently held must [*112]  be subjected to strict
scrutiny. Grutter, supra, at 326, 123 S. Ct. 2325, 156 L. Ed. 2d
304.

B

Though the dissent admits to discomfort in applying strict scrutiny to these
plans, it claims to have nonetheless applied that exacting standard. But in its
search for a compelling interest, the dissent casually accepts even the most
tenuous interests asserted on behalf of the plans, grouping them all under the
term “‘integration.'” See post, at 37.
“‘Integration,'” we are told, has “three essential
elements.” Ibid. None of these elements is compelling. And the
combination of the three unsubstantiated elements does not produce an interest
any more compelling than that represented by each element independently.

1

According to the dissent, integration involves “an interest in setting
right the consequences of prior conditions of segregation.” Post,
at 37. For the reasons explained above, the records in these cases do not
demonstrate that either school board’s plan is supported by an interest in
remedying past discrimination. Part I-B, supra.

Moreover, the school boards have no interest in remedying the sundry
consequences of prior segregation unrelated to schooling, such as
“housing [*113]  patterns, employment practices, economic
conditions, and social attitudes.” Post, at 38. General claims that
past school segregation affected such varied societal trends are “too
amorphous a basis for imposing a racially classified remedy,” Wygant,
476 U.S., at 276, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (plurality opinion),
because “it is sheer speculation” how decades-past segregation in the
school system might have affected these trends, see Croson, 488 U.S., at
499, 109 S. Ct. 706, 102 L. Ed. 2d 854. 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. Id., at 498, 109 S.
Ct. 706, 102 L. Ed. 2d 854. Indeed, remedial measures geared toward such broad
and unrelated societal ills have “‘no logical stopping point,'” ibid.,
and threaten to become “ageless in their reach into the past, and timeless
in their ability to affect the future,” Wygant, supra, at
276, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (plurality opinion). See Grutter,
539 U.S., at 342, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (stating the
“requirement that all governmental use of race must have a logical end
point”).

Because the school boards lack any further interest in remedying segregation,
this [*114]  element offers no support for the purported interest in
“integration.”

2

Next, the dissent argues that the interest in integration has an educational
element. The dissent asserts that racially balanced schools improve educational
outcomes for black children. In support, the dissent unquestioningly cites
certain social science research to support propositions that are hotly disputed
among social scientists. In reality, it is far from apparent that coerced
racial mixing has any educational benefits, much less that integration is
necessary to black achievement.

Scholars have differing opinions as to whether educational benefits arise from
racial balancing. Some have concluded that black students receive genuine
educational benefits. See, e.g., Crain & Mahard, Desegregation and
Black Achievement: A Review of the Research, 42 L. & Contemp. Probs. 17, 48
(1978). Others have been more circumspect. See, e.g., Henderson,
Greenberg, Schneider, Uribe, & Verdugo, High Quality Schooling for African
American Students, in Beyond Desegregation 166 (M. Shujaa ed. 1996)
(“Perhaps desegregation does not have a single effect, positive or
negative, on the academic achievement of African American [*115]
students, but rather some strategies help, some hurt, and still others make no
difference whatsoever. It is clear to us that focusing simply on demographic
issues detracts from focusing on improving schools”). And some have
concluded that there are no demonstrable educational benefits. See, e.g.,
Armor & Rossell, Desegregation and Resegregation in the Public Schools, in
Beyond the Color Line: New Perspectives on Race and Ethnicity in America 239,
251 (A. Thernstrom & S. Thernstrom eds. 2002).

The amicus briefs in the cases before us mirror this divergence of
opinion. Supporting the school boards, one amicus has assured us that
“both early desegregation research and recent statistical and econometric
analyses . . . indicate that there are positive effects on minority student
achievement scores arising from diverse school settings.” Brief for
American Educational Research Association as Amicus Curiae 10. Another
brief claims that “school desegregation has a modest positive impact on
the achievement of African-American students.” App. to Brief for 553
Social Scientists as Amici Curiae 13-14 (footnote omitted). Yet neither
of those briefs contains specific details [*116]  like the magnitude
of the claimed positive effects or the precise demographic mix at which those
positive effects begin to be realized. 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. n11

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n11 At least one of the academic articles the dissent cites to support this
proposition fails to establish a causal connection between the supposed educational
gains realized by black students and racial mixing. See Hallinan, Diversity
Effects on Student Outcomes: Social Science Evidence, 59 Ohio St. L. J. 733
(1998). In the pages following the ones the dissent cites, the author of that
article remarks that “the main reason white and minority students perform
better academically in majority white schools is likely that these schools
provide greater opportunities to learn. In other words, it is not desegregation
per se that improves achievement, but rather the learning advantages some
desegregated schools provide.” Id., at 744. Evidence that race is a
good proxy for other factors that might be correlated with educational benefits
does not support a compelling interest in the use of race to achieve academic
results.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –
– [*117]

Other amici dispute these findings. One amicus reports that
“in study after study, racial composition of a student body, when
isolated, proves to be an insignificant determinant of student
achievement.” Brief for Dr. John Murphy et al. as Amici Curiae in
No. 05-908, p. 8; see also id., at 9 (“There is no evidence that
diversity in the K-12 classroom positively affects student achievement”).
Another amicus surveys several social science studies and concludes that
“a fair and comprehensive analysis of the research shows that there is no
clear and consistent evidence of [educational] benefits.” Brief for David
J. Armor et al. as Amici Curiae 29.

Add to the inconclusive social science the fact of black achievement in
“racially isolated” environments. See T. Sowell, Education:
Assumptions Versus History 7-38 (1986). Before Brown, the most prominent
example of an exemplary black school was Dunbar High School. Id., at 29
(“In the period 1918-1923, Dunbar graduates earned fifteen degrees from
Ivy League colleges, and ten degrees from Amherst, Williams, and
Wesleyan”). Dunbar is by no means an isolated example. See id., at
10-32 (discussing other successful [*118]  black schools); Walker,
Can Institutions Care? Evidence from the Segregated Schooling of African
American Children, in Beyond Desegregation 209-226 (M. Shujaa ed. 1996); see
also T. Sowell, Affirmative Action Around the World: An Empirical Study 141-165
(2004). Even after Brown, some schools with predominantly black
enrollments have achieved outstanding educational results. See, e.g., S.
Carter, No Excuses: Lessons from 21 High-Performing, High-Poverty Schools
49-50, 53-56, 71-73, 81-84, 87-88 (2001); A. Thernstrom & S. Thernstrom, No
Excuses: Closing the Racial Gap in Learning 43-64 (2003); see also L. Izumi,
They Have Overcome: High-Poverty, High-Performing Schools in California (2002)
(chronicling exemplary achievement in predominantly Hispanic schools in
California). There is also evidence that black students attending historically
black colleges achieve better academic results than those attending
predominantly white colleges. Grutter, supra, at 364-365, 123 S.
Ct. 2325, 156 L. Ed. 2d 304 (THOMAS, J., concurring in part and concurring in
judgment) (citing sources); see also Fordice, 505 U.S., at 748-749, 112
S. Ct. 2727, 120 L. Ed. 2d 575 (THOMAS, J., concurring).

The Seattle school board itself must [*119]  believe that racial
mixing is not necessary to black achievement. Seattle operates a K-8
“African-American Academy,” which has a “nonwhite”
enrollment of 99%. See App. in No. 05-908, p. 227a; Reply Brief in No. 05-908,
p. 13, n. 13. That school was founded in 1990 as part of the school board’s
effort to “increase academic achievement.” n12 See African American
Academy History, online at http://www.
seattleschools.org/schools/aaa/history.htm (all Internet materials as visited
June 26, 2007, and available in Clerk of Court’s case file). According to the
school’s most recent annual report, “academic excellence” is its
“primary goal.” See African American Academy 2006 Annual Report, p.
2, online at http://www.seattleschools.org/area/
siso/reports/anrep/altern/938.pdf. This racially imbalanced environment has
reportedly produced test scores “higher across all grade levels in
reading, writing and math.” Ibid. Contrary to what the dissent
would have predicted, see post, at 38-39, the children in Seattle’s
African American Academy have shown gains when placed in a “highly
segregated” environment.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n12 Of course, if the Seattle school board were truly committed to the notion
that diversity leads directly to educational benefits, operating a school with
such a high “nonwhite” enrollment would be a shocking dereliction of
its duty to educate the students enrolled in that school.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –
– [*120]

Given this tenuous relationship between forced racial mixing and improved
educational results for black children, the dissent cannot plausibly maintain
that an educational element supports the integration interest, let alone makes
it compelling. n13 See Jenkins, 515 U.S., at 121-122, 115 S. Ct. 2038,
132 L. Ed. 2d 63 (THOMAS, J., concurring) (“There is no reason to think
that black students cannot learn as well when surrounded by members of their
own race as when they are in an integrated environment”).

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n13 In fact, the available data from the Seattle school district appear to
undercut the dissent’s view. A comparison of the test results of the schools in
the last year the racial balancing program operated to the results in the
2004-to-2005 school year (in which student assignments were race-neutral) does
not indicate the decline in black achievement one would expect to find if black
achievement were contingent upon a particular racial mix. See Washington State
Report Card, online at http://reportcard.ospi.k12.wa.us.offcampus.lib.washington.edu/summary.aspx?schoolId=1099&OrgType=4&reportLevel=School;
http://reportcard.ospi.k12.wa.us.offcampus.lib.washington.edu/summary.aspx?schoolId=1104&reportLevel=School&orgLinkId=1104&yrs=;
http://reportcard.ospi.k12.wa.us.offcampus.lib.washington.edu/summary.aspx?schoolId=1061&reportLevel=School&orgLinkId=1061&yrs=;
http://reportcard.ospi.k12.wa.us.offcampus.lib.washington.edu/summary.aspx?schoolId=1043&reportLevel=School&orgLinkId=1043&yrs=
(showing that reading scores went up, not down, when Seattle’s race-based
assignment program ended at Sealth High School, Ingraham High School, and
Franklin High School — some of the schools most affected by the plan).
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –
– [*121]

Perhaps recognizing as much, the dissent argues that the social science
evidence is “strong enough to permit a democratically elected school board
reasonably to determine that this interest is a compelling one.” Post,
at 38. This assertion is inexplicable. It is not up to the school boards — the
very government entities whose race-based practices we must strictly scrutinize
— to determine what interests qualify as compelling under the Fourteenth
Amendment to the United States Constitution. Rather, this Court must assess
independently the nature of the interest asserted and the evidence to support
it in order to determine whether it qualifies as compelling under our
precedents. In making such a determination, we have deferred to state authorities
only once, see Grutter, 539 U.S., at 328-330, 123 S. Ct. 2325, 156 L.
Ed. 2d 304, and that deference was prompted by factors uniquely relevant to
higher education. Id., at 328, 123 S. Ct. 2325, 156 L. Ed. 2d 304
(“Our holding today is in keeping with our tradition of giving a degree of
deference to a university’s academic decisions”). The dissent’s proposed
test — whether sufficient social science evidence supports a government unit’s
conclusion that the interest it asserts [*122]  is compelling — calls
to mind the rational-basis standard of review the dissent purports not to
apply, post, at 36-37. See Williamson v. Lee Optical of Okla.,
Inc.
, 348 U.S. 483, 488, 75 S. Ct. 461, 99 L. Ed. 563 (1955) (“It is
enough that there is an evil at hand for correction, and that it might be
thought that the particular legislative measure was a rational way to correct
it”). Furthermore, it would leave our equal-protection jurisprudence at
the mercy of elected government officials evaluating the evanescent views of a
handful of social scientists. To adopt the dissent’s deferential approach would
be to abdicate our constitutional responsibilities. n14

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n14 The dissent accuses me of “feeling confident that, to end invidious
discrimination, one must end all governmental use of race-conscious
criteria” and chastises me for not deferring to democratically elected
majorities. See post, at 62. Regardless of what JUSTICE BREYER’s goals
might be, this Court does not sit to “create a society that includes all
Americans” or to solve the problems of “troubled inner city
schooling.” Ibid. We are not social engineers. The United States
Constitution dictates that local governments cannot make decisions on the basis
of race. Consequently, regardless of the perceived negative effects of racial
imbalance, I will not defer to legislative majorities where the Constitution
forbids it.

It should escape no one that behind JUSTICE BREYER’s veil of judicial modesty
hides an inflated role for the Federal Judiciary. The dissent’s approach
confers on judges the power to say what sorts of discrimination are benign and
which are invidious. Having made that determination (based on no objective
measure that I can detect), a judge following the dissent’s approach will set
the level of scrutiny to achieve the desired result. Only then must the judge
defer to a democratic majority. In my view, to defer to one’s preferred result
is not to defer at all.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –
– [*123]

3

Finally, the dissent asserts a “democratic element” to the
integration interest. It defines the “democratic element” as “an
interest in producing an educational environment that reflects the ‘pluralistic
society’ in which our children will live.” Post, at 39. n15
Environmental reflection, though, is just another way to say racial balancing.
And “preferring members of any one group for no reason other than race or
ethnic origin is discrimination for its own sake.” Bakke, 438 U.S.,
at 307, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (opinion of Powell, J.). “This
the Constitution forbids.” Ibid.; Grutter, supra, at
329-330, 123 S. Ct. 2325, 156 L. Ed. 2d 304; Freeman, 503 U.S., at 494,
112 S. Ct. 1430, 118 L. Ed. 2d 108.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n15 The notion that a “democratic” interest qualifies as a compelling
interest (or constitutes a part of a compelling interest) is proposed for the
first time in today’s dissent and has little basis in the Constitution or our
precedent, which has narrowly restricted the interests that qualify as
compelling. See Grutter v. Bollinger, 539 U.S. 306, 351-354, 123
S. Ct. 2325, 156 L. Ed. 2d 304 (2003) (THOMAS, J., concurring in part and
dissenting in part). The Fourteenth Amendment does not enact the dissent’s
newly minted understanding of liberty. See Lochner v. New York,
198 U.S. 45, 75, 25 S. Ct. 539, 49 L. Ed. 937 (1905) (Holmes, J., dissenting)
(“The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social
Statics”).
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –
– [*124]

Navigating around that inconvenient authority, the dissent argues that the
racial balancing in these plans is not an end in itself but is instead intended
to “teach children to engage in the kind of cooperation among Americans of
all races that is necessary to make a land of three hundred million people one
Nation.” Post, at 39-40. These “generic lessons in
socialization and good citizenship” are too sweeping to qualify as
compelling interests. Grutter, 539 U.S., at 348, 123 S. Ct. 2325, 156 L.
Ed. 2d 304 (SCALIA, J., concurring in part and dissenting in part). And they
are not “uniquely relevant” to schools or “uniquely ‘teachable’
in a formal educational setting.” Id., at 347, 123 S. Ct. 2325, 156
L. Ed. 2d 304. Therefore, if governments may constitutionally use racial
balancing to achieve these aspirational ends in schools, they may use racial
balancing to achieve similar goals at every level — from state-sponsored 4-H
clubs, see Bazemore v. Friday, 478 U.S. 385, 388-390, 106 S. Ct.
3000, 92 L. Ed. 2d 315 (1986) (Brennan, J., concurring), to the state civil
service. See Grutter, 539 U.S. 347-348, 123 S. Ct. 2325, 156 L. Ed. 2d
304 (opinion of SCALIA, J.).

Moreover, the democratic interest has no durational limit, contrary to Grutter‘s
command.  [*125]  See id., at 342, 123 S. Ct. 2325, 156 L. Ed.
2d 304; see also Croson, 488 U.S., at 498, 109 S. Ct. 706, 102 L. Ed. 2d
854; Wygant, 476 U.S., at 275, 106 S. Ct. 1842, 90 L. Ed. 2d 260
(plurality opinion). In other words, it will always be important for students
to learn cooperation among the races. If this interest justifies race-conscious
measures today, then logically it will justify race-conscious measures forever.
Thus, the democratic interest, limitless in scope and “timeless in [its]
ability to affect the future,” id., at 276, 106 S. Ct. 1842, 90 L.
Ed. 2d 260 (plurality opinion), cannot justify government race-based
decisionmaking. n16

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n16 The dissent does not explain how its recognition of an interest in teaching
racial understanding and cooperation here is consistent with the Court’s
rejection of a similar interest in Wygant. In Wygant, a school
district justified its race-based teacher-layoff program in part on the theory
that “minority teachers provided ‘role models’ for minority students and
that a racially ‘diverse’ faculty would improve the education of all
students.” Grutter, supra, at 352, 123 S. Ct. 2325, 156 L.
Ed. 2d 304 (opinion of THOMAS, J.) (citing Brief for Respondents, O. T. 1984,
No. 84-1340, pp. 27-28; 476 U.S., at 315, 106 S. Ct. 1842, 90 L. Ed. 2d 260
(STEVENS, J., dissenting)). The Court rejected the interests asserted to
justify the layoff program as insufficiently compelling. Wygant, 476
U.S., at 275-276, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (plurality opinion); id.,
at 295, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (White, J., concurring in judgment).
If a school district has an interest in teaching racial understanding and
cooperation, there is no logical reason why that interest should not extend to
the composition of the teaching staff as well as the composition of the student
body. The dissent’s reliance on this interest is, therefore, inconsistent with Wygant.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –
– [*126]

In addition to these defects, the democratic element of the integration
interest fails on the dissent’s own terms. 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. Here again, though, the dissent overstates the data that supposedly
support the interest.

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). By the
dissent’s account, improvements in racial attitudes depend upon the increased
contact between black and white students thought to occur in more racially
balanced schools. There is no guarantee, however, that students of different
races in the same school will actually spend time with one another. Schools
frequently group students by academic ability as an aid to efficient
instruction, but such groupings often result in classrooms with high
concentrations of one race or another. See, e.g., Yonezawa, Wells, &
Serna, Choosing Tracks: “Freedom of Choice” in
Detracting [*127]  Schools, 39 Am. Ed. Research J., No. 1, p. 38
(Spring 2002); Mickelson, Subverting Swann: First- and Second-Generation
Segregation in the Charlotte-Mecklenburg Schools, 38 Am. Ed. Research J., No.
2, pp. 233-234 (Summer 2001) (describing this effect in schools in Charlotte,
North Carolina). In addition to classroom separation, students of different
races within the same school may separate themselves socially. See Hallinan
& Williams, Interracial Friendship Choices in Secondary Schools, 54 Am.
Sociological Rev., No. 1, pp. 72-76 (Feb. 1989); see also Clotfelter,
Interracial Contact in High School Extracurricular Activities, 34 Urban Rev.,
No. 1, pp. 41-43 (Mar. 2002). Therefore, even supposing interracial contact
leads directly to improvements in racial attitudes and race relations, a
program that assigns students of different races to the same schools might not
capture those benefits. Simply putting students together under the same roof
does not necessarily mean that the students will learn together or even
interact.

Furthermore, it is unclear whether increased interracial contact improves
racial attitudes and relations. n17 One researcher has stated that “the
reviews of desegregation [*128]  and intergroup relations were unable
to come to any conclusion about what the probable effects of desegregation were
. . . [;] virtually all of the reviewers determined that few, if any, firm
conclusions about the impact of desegregation on intergroup relations could be
drawn.” Schofield, School Desegregation and Intergroup Relations: A Review
of the Literature, in 17 Review of Research in Education 356 (G. Grant ed.
1991). Some studies have even found that a deterioration in racial attitudes
seems to result from racial mixing in schools. See N. St. John, School
Desegregation Outcomes for Children 67-68 (1975) (“A glance at [the data]
shows that for either race positive findings are less common than negative
findings”); Stephan, The Effects of School Desegregation: An Evaluation 30
Years After Brown, in Advances in Applied Social Psychology 183-186 (M. Saks
& L. Saxe eds. 1986). Therefore, it is not nearly as apparent as the
dissent suggests that increased interracial exposure automatically leads to
improved racial attitudes or race relations.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n17 Outside the school context, this Court’s cases reflect the fact that racial
mixing does not always lead to harmony and understanding. In Johnson v. California,
543 U.S. 499, 125 S. Ct. 1141, 160 L. Ed. 2d 949 (2005), this Court considered
a California prison policy that separated inmates racially. Id., at
525-528, 125 S. Ct. 1141, 160 L. Ed. 2d 949 (THOMAS, J., dissenting). That
policy was necessary because of “numerous incidents of racial
violence.” Id., at 502, 125 S. Ct. 1141, 160 L. Ed. 2d 949; id.,
at 532-534, 125 S. Ct. 1141, 160 L. Ed. 2d 949 (THOMAS, J., dissenting). As a
result of this Court’s insistence on strict scrutiny of that policy, but see id.,
at 538-547, 125 S. Ct. 1141, 160 L. Ed. 2d 949, inmates in the California
prisons were killed. See Beard v. Banks, 548 U.S. ___, ___, 126
S. Ct. 2572, 165 L. Ed. 2d 697 (2006) (THOMAS, J., concurring in judgment)
(noting that two were killed and hundreds were injured in race rioting
subsequent to this Court’s decision in Johnson).
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –
– [*129]

Given our case law and the paucity of evidence supporting the dissent’s belief
that these plans improve race relations, no democratic element can support the
integration interest. n18

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n18 After discussing the “democratic element,” the dissent repeats
its assertion that the social science evidence supporting that interest is
“sufficiently strong to permit a school board to determine . . . that this
interest is compelling.” Post, at 40. Again, though, the school
boards have no say in deciding whether an interest is compelling. Strict scrutiny
of race-based government decisionmaking is more searching than Chevron-style
administrative review for reasonableness. See Chevron U.S.A. Inc. v. NRDC,
467 U.S. 837, 845, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984).
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

4

The dissent attempts to buttress the integration interest by claiming that it
follows a fortiori from the interest this Court recognized as compelling
in Grutter. Post, at 41. Regardless of the merit of Grutter,
the [*130]  compelling interest recognized in that case cannot
support these plans. Grutter recognized a compelling interest in a law
school’s attainment of a diverse student body. 539 U.S., at 328, 123 S. Ct.
2325, 156 L. Ed. 2d 304. This interest was critically dependent upon features
unique to higher education: “the expansive freedoms of speech and thought
associated with the university environment,” the “special niche in
our constitutional tradition” occupied by universities, and “the freedom
of a university to make its own judgments as to education[,] including the
selection of its student body.” Id., at 329, 123 S. Ct. 2325, 156
L. Ed. 2d 304 (internal quotation marks omitted). None of these features is
present in elementary and secondary schools. Those schools do not select their
own students, and education in the elementary and secondary environment
generally does not involve the free interchange of ideas thought to be an
integral part of higher education. See 426 F.3d at 1208 (Bea, J., dissenting).
Extending Grutter to this context would require us to cut that holding
loose from its theoretical moorings. Thus, only by ignoring Grutter‘s
reasoning can the dissent claim that recognizing a compelling
interest [*131]  in these cases is an a fortiori application
of Grutter.

C

Stripped of the baseless and novel interests the dissent asserts on their
behalf, the school boards cannot plausibly maintain that their plans further a
compelling interest. As I explained in Grutter, only “those
measures the State must take to provide a bulwark against anarchy . . . or to
prevent violence” and “a government’s effort to remedy past
discrimination for which it is responsible” constitute compelling
interests. 539 U.S., at 351-352, 353, 123 S. Ct. 2325, 156 L. Ed. 2d 304.
Neither of the parties has argued — nor could they — that race-based student
assignment is necessary to provide a bulwark against anarchy or to prevent
violence. And as I explained above, the school districts have no remedial
interest in pursuing these programs. See Part I-B, supra. Accordingly,
the school boards cannot satisfy strict scrutiny. These plans are
unconstitutional.

III

Most of the dissent’s criticisms of today’s result can be traced to its
rejection of the color-blind Constitution. See post, at 29. The dissent
attempts to marginalize the notion of a color-blind Constitution by consigning
it to me and Members of today’s plurality. [*132]  n19 See ibid.;
see also post, at 61. But I am quite comfortable in the company I keep.
My view of the Constitution is Justice Harlan’s view in Plessy:
“Our Constitution is color-blind, and neither knows nor tolerates classes
among citizens.” Plessy v. Ferguson, 163 U.S. 537, 559, 16
S. Ct. 1138, 41 L. Ed. 256 (1896) (dissenting opinion). And my view was the
rallying cry for the lawyers who litigated Brown. See, e.g.,
Brief for Appellants in Brown v. Board of Education, O. T. 1953,
Nos. 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. 1, p. 5 (“The Fourteenth Amendment
precludes a state from imposing distinctions or classifications based upon race
and color alone”); n20 see also In Memoriam: Honorable Thurgood Marshall,
Proceedings of the Bar and Officers of the Supreme Court of the United States,
X (1993) (remarks of Judge Motley) (“Marshall had a ‘Bible’ to which he
turned during his most depressed moments. The ‘Bible’ would be known in the
legal community as the first Mr. Justice Harlan’s dissent in Plessy v. Ferguson,
163 U.S. 537, 552, 16 S. Ct. 1138, 41 L. Ed. 256 (1896). [*133]  I do
not know of any opinion which buoyed Marshall more in his pre-Brown days
. . . “).

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n19 The dissent half-heartedly attacks the historical underpinnings of the
color-blind Constitution. Post, at 28-29. I have no quarrel with the
proposition that the Fourteenth Amendment sought to bring former slaves into
American society as full members. Post, at 28 (citing Slaughter-House
Cases
, 83 U.S. 36, 16 Wall. 36, 71-72, 21 L. Ed. 394 (1873)). What the
dissent fails to understand, however, is that the color-blind Constitution does
not bar the government from taking measures to remedy past state-sponsored
discrimination — indeed, it requires that such measures be taken in certain
circumstances. See, e.g., Part I-B, supra. Race-based government
measures during the 1860’s and 1870’s to remedy state-enforced slavery
were therefore not inconsistent with the color-blind Constitution.

n20 See also Juris. Statement in Davis v. County School Board, O.
T. 1952, No. 3, p. 8 (“We take the unqualified position that the
Fourteenth Amendment has totally stripped the state of power to make race and
color the basis for governmental action”); Tr. of Oral Arg. in Brown
v. Board of Education, O. T. 1952, No. 1, p. 7 (“We have one
fundamental contention which we will seek to develop in the course of this
argument, and that contention is that no State has any authority under the
equal-protection clause of the Fourteenth Amendment to use race as a factor in
affording educational opportunities among its citizens”); Tr. of Oral Arg.
in Briggs v. Elliott, O. T. 1953, No. 2, p. 50 (“The state
is deprived of any power to make any racial classifications in any governmental
field”).
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –
– [*134]

The dissent appears to pin its interpretation of the Equal Protection Clause to
current societal practice and expectations, deference to local officials, likely
practical consequences, and reliance on previous statements from this and other
courts. Such a view was ascendant in this Court’s jurisprudence for several
decades. It first appeared in Plessy, where the Court asked whether a
state law providing for segregated railway cars was “a reasonable
regulation.” 163 U.S., at 550, 16 S. Ct. 1138, 41 L. Ed. 256. The Court
deferred to local authorities in making its determination, noting that in
inquiring into reasonableness “there must necessarily be a large discretion
on the part of the legislature.” Ibid. The Court likewise paid heed
to societal practices, local expectations, and practical consequences by
looking to “the established usages, customs and traditions of the people,
and with a view to the promotion of their comfort, and the preservation of the
public peace and good order.” Ibid. Guided by these principles, the
Court concluded: “We cannot say that a law which authorizes or even
requires the separation of the two races in public conveyances is unreasonable,
or more obnoxious to [*135]  the Fourteenth Amendment than the acts
of Congress requiring separate schools for colored children in the District of
Columbia.” Id., at 550-551, 16 S. Ct. 1138, 41 L. Ed. 256.

The segregationists in Brown embraced the arguments the Court endorsed
in Plessy. Though Brown decisively rejected those arguments,
today’s dissent replicates them to a distressing extent. Thus, the dissent
argues that “each plan embodies the results of local experience and
community consultation.” Post, at 47. Similarly, the
segregationists made repeated appeals to societal practice and expectation.
See, e.g., Brief for Appellees on Reargument in Briggs v. Elliott,
O. T. 1953, No. 2, p. 76 (“[A] State has power to establish a school
system which is capable of efficient administration, taking into account local
problems and conditions”). n21 The dissent argues that “weight [must
be given] to a local school board’s knowledge, expertise, and concerns,” post,
at 48, and with equal vigor, the segregationists argued for deference to local
authorities. See, e.g., Brief for Kansas on Reargument in Brown
v. Board of Education, O. T. 1953, No. 1, p. 14 (“We advocate only
a concept of [*136]  constitutional law that permits determinations
of state and local policy to be made on state and local levels. We defend only
the validity of the statute that enables the Topeka Board of Education to
determine its own course”). n22 The dissent argues that today’s decision
“threatens to substitute for present calm a disruptive round of
race-related litigation,” post, at 2, and claims that today’s
decision “risks serious harm to the law and for the Nation,” post,
at 65. The segregationists also relied upon the likely practical consequences
of ending the state-imposed system of racial separation. See, e.g.,
Brief for Appellees on Reargument in Davis v. County School Board,
O. T. 1953, No. 3, p. 37 (“Yet a holding that school segregation by race
violates the Constitution will result in upheaval in all of those places not
now subject to Federal judicial scrutiny. This Court has made many decisions of
widespread effect; none would affect more people more directly in more
fundamental interests and, in fact, cause more chaos in local government than a
reversal of the decision in this case”). n23 And foreshadowing today’s
dissent, the segregationists most heavily relied [*137]  upon
judicial precedent. See, e.g., Brief for Appellees on Reargument in Briggs
v. Elliott, O. T. 1953, No. 2, p. 59 (“It would be difficult indeed
to find a case so favored by precedent as is the case for South Carolina
here”). n24

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n21 See also Brief for Appellees in Davis v. County School Board,
O. T. 1952, No. 3, p. 1 (“The Court is asked . . . to outlaw the fixed
policies of the several States which are based on local social conditions well
known to the respective legislatures”); id., at 9 (“For this
purpose, Virginia history and present Virginia conditions are important”);
Tr. of Oral Arg. in Davis v. County School Board, O. T. 1952, No.
3, p. 57 (“The historical background that exists, certainly in this
Virginia situation, with all the strife and the history that we have shown in
this record, shows a basis, a real basis, for the classification that has been
made”); id., at 69 (describing the potential abolition of
segregation as “contrary to the customs, the traditions and the mores of
what we might claim to be a great people, established through generations, who
themselves are fiercely and irrevocably dedicated to the preservation of the
white and colored races”). Accord, post, at 68 (“Today, almost
50 years later, attitudes toward race in this Nation have changed dramatically.
Many parents, white and black alike, want their children to attend schools with
children of different races. Indeed, the very school districts that once
spurned integration now strive for it. The long history of their efforts
reveals the complexities and difficulties they have faced”); post, at
21 (emphasizing the importance of “local circumstances” and
encouraging different localities to “try different solutions to common
problems and gravitate toward those that prove most successful or seem to them
best to suit their individual needs” (citations and internal quotation
marks omitted)); post, at 48 (emphasizing the school
districts'”40-year history” during which both school districts have
tried numerous approaches “to achieve more integrated schools”); post,
at 63 (“The histories of Louisville and Seattle reveal complex
circumstances and a long tradition of conscientious efforts by local school
boards”). [*138]
n22 See also Brief for Appellees in Brown v. Board of Education,
O. T. 1952, No. 1, p. 29 (“‘It is universally held, therefore, that each
state shall determine for itself, subject to the observance of the fundamental
rights and liberties guaranteed by the federal Constitution, how it shall
exercise the police power . . . . And in no field is this right of the several
states more clearly recognized than in that of public education'” (quoting
Briggs v. Elliott, 98 F. Supp. 529, 532 (SC 1951))); Brief for
Appellees in Briggs v. Elliott, O. T. 1952, No. 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. Nowhere is this more profoundly true than in the field of
education”); Tr. of Oral Arg. in Briggs v. Elliott, O. T.
1952, No. 2, pp. 54-55 (“What is the great national and federal policy on
this matter? Is it not a fact that the very strength and fiber of our federal
system is local self-government in those matters for which local action is
competent? Is it not of all the activities of government the one which most
nearly approaches the hearts and minds of people, the question of the education
of their young? Is it not the height of wisdom that the manner in which that
shall be conducted should be left to those most immediately affected by it, and
that the wishes of the parents, both white and colored, should be ascertained
before their children are forced into what may be an unwelcome contact?”).
Accord, post, at 48 (“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”); post, at 66 (“What of
respect for democratic local decisionmaking by States and school
boards?”); ibid. (explaining “that the Constitution grants
local school districts a significant degree of leeway”). [*139]
n23 See also Reply Brief for Appellees in Davis v. County School
Board
, O. T. 1953, No. 3, p. 17 (“The Court is . . . dealing with
thousands of local school districts and schools. Is each to be the subject of
litigation in the District Courts?”); Brief for Kansas on Reargument in Brown
v. Board of Education, O. T. 1953, No. 1, p. 51 (“The delicate
nature of the problem of segregation and the paramount interest of the State of
Kansas in preserving the internal peace and tranquility of its people indicates
that this is a question which can best be solved on the local level, at least
until Congress declares otherwise”). Accord, post, at 61 (“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”); post, at 65
(“Indeed, the consequences of the approach the Court takes today are
serious. Yesterday, the plans under review were lawful. Today, they are
not”); post, at 66 (predicting “further litigation,
aggravating race-related conflict”). [*140]
n24 See also Statement of Appellees Opposing Jurisdiction and Motion to Dismiss
or Affirm in Davis v. County School Board, O. T. 1952, No. 3, p.
5 (“It would be difficult to find from any field of law a legal principle
more repeatedly and conclusively decided than the one sought to be raised by appellants”);
Brief for Appellees in Davis v. County School Board, O. T. 1953,
No. 3, p. 46-47 (“If this case were to be decided solely on the basis of
precedent, this brief could have been much more limited. 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. 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. of Oral Arg. in Briggs
v. Elliott, O. T. 1953, No. 2, p. 79 (“But be that doctrine what it
may, somewhere, sometime to every principle comes a moment of repose when it
has been so often announced, so confidently relied upon, so long continued,
that it passes the limits of judicial discretion and disturbance . . . . 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. We relied on the fact
that the courts of last appeal of some sixteen or eighteen States have passed
upon the validity of the separate but equal doctrine vis-a-vis the Fourteenth
Amendment. We relied on the fact that Congress has continuously since 1862
segregated its schools in the District of Columbia”); Brief for Appellees
in Briggs v. Elliott, O. T. 1952, No. 2, App. D (collecting
citations of state and federal cases “which enunciate the principle that
state laws providing for racial segregation in the public schools do not
conflict with the Fourteenth Amendment”). Accord, post, at 22
(“The Court set forth in Swann a basic principle of constitutional
law — a principle of law that has found wide acceptance in the legal
culture” (citations and internal quotation marks omitted)); post, at
25 (“Lower state and federal courts had considered the matter settled and
uncontroversial even before this Court decided Swann“); post,
at 26 (“Numerous state and federal courts explicitly relied upon Swann‘s
guidance for decades to follow”); post, at 27 (stating “how
lower courts understood and followed Swann‘s enunciation of the relevant
legal principle”); post, at 30 (“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”); post, at 61 (“Today’s opinion
will require setting aside the laws of several States and many local
communities”); post, at 66 (“And what has happened to Swann?
To McDaniel? To Crawford? To Harris? To School
Committee of Boston?
To Seattle School Dist. No. 1? After decades of
vibrant life, they would all, under the plurality’s logic, be written out of
the law”).
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –
– [*141]

The similarities between the dissent’s arguments and the segregationists’
arguments do not stop there. Like the dissent, the segregationists repeatedly
cautioned the Court to consider practicalities and not to embrace too
theoretical a view of the Fourteenth Amendment. n25 And just as the dissent
argues that the need for these programs will lessen over time, the
segregationists claimed that reliance on segregation was lessening and might
eventually end. n26

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n25 Compare Brief for Appellees in Davis v. County School Board,
O. T. 1952, No. 3, p. 16-17 (“‘It is by such practical considerations
based on experience rather than by theoretical inconsistencies that the
question of equal protection is to be answered'” (quoting Railway
Express Agency, Inc.
v. New York, 336 U.S. 106, 69 S. Ct. 463, 93 L.
Ed. 533 (1949))); Brief for Appellees on Reargument in Davis v. County
School Board
, O. T. 1953, No. 3, p. 76 (“The question is a practical
one for them to solve; it is not subject to solution in the theoretical realm
of abstract principles”); Tr. of Oral Arg. in Davis v. County
School Board
, O. T. 1953, No. 4, p. 86 (“You cannot talk about this
problem just in a vacuum in the manner of a law school discussion”), with post,
at 57 (“The Founders meant the Constitution as a practical
document”). [*142]
n26 Compare Brief for Kansas on Reargument in Brown v. Board of
Education
, O. T. 1953, No. 1, p. 57 (“The people of Kansas . . . are
abandoning the policy of segregation whenever local conditions and local
attitudes make it feasible”), Brief for Appellees on Reargument in Davis
v. County School Board, O. T. 1953, No. 3, p. 76 (“As time passes,
it may well be that segregation will end”), with post, at 19
(“They use race-conscious criteria in limited and gradually diminishing
ways”); post, at 48 (“Each plan’s 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).
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

What was wrong in 1954 cannot be right today. n27 Whatever else the Court’s
rejection of the segregationists’ arguments in Brown might have
established, it certainly made clear that state and local governments cannot
take from the Constitution a right to make decisions on the basis of race by
adverse possession. The fact that state and local governments
had [*143]  been discriminating on the basis of race for a long time
was irrelevant to the Brown Court. The fact that racial discrimination
was preferable to the relevant communities was irrelevant to the Brown
Court. And the fact that the state and local governments had relied on
statements in this Court’s opinions was irrelevant to the Brown Court.
The same principles guide today’s decision. None of the considerations
trumpeted by the dissent is relevant to the constitutionality of the school
boards’ race-based plans because no contextual detail — or collection of
contextual details, post, at 2-22 — can “provide refuge from the
principle that under our Constitution, the government may not make distinctions
on the basis of race.” Adarand, 515 U.S., at 240, 115 S. Ct. 2097,
132 L. Ed. 2d 158 (THOMAS, J., concurring in part and concurring in judgment).
n28

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n27 It is no answer to say that these cases can be distinguished from Brown
because Brown involved invidious racial classifications whereas the
racial classifications here are benign. See post, at 62. How does one
tell when a racial classification is invidious? The segregationists in Brown
argued that their racial classifications were benign, not invidious. See Tr. of
Oral Arg. in Briggs v. Elliott, O. T. 1953, No. 2, p. 83
(“It [South Carolina] is confident of its good faith and intention to
produce equality for all of its children of whatever race or color. It is
convinced that the happiness, the progress and the welfare of these children is
best promoted in segregated schools”); Brief for Appellees on Reargument
in Davis v. County School Board, O. T. 1953, No. 3, p. 82-83
(“Our many hours of research and investigation have led only to
confirmation of our view that segregation by race in Virginia’s public schools
at this time not only does not offend the Constitution of the United States but
serves to provide a better education for living for the children of both
races”); Tr. of Oral Arg. in Davis v. County School Board,
O. T. 1952, No. 3, p. 71 (“To make such a transition, would undo what we
have been doing, and which we propose to continue to do for the uplift and
advancement of the education of both races. It would stop this march of
progress, this onward sweep”). It is the height of arrogance for Members
of this Court to assert blindly that their motives are better than
others. [*144]
n28 See also id., at 8-9 (“It has been urged that [these state laws
and policies] derive validity as a consequence of a long duration supported and
made possible by a long line of judicial decisions, including expressions in
some of the decisions of this Court. At the same time, it is urged that these
laws are valid as a matter of constitutionally permissible social experimentation
by the States. On the matter of stare decisis, I submit that the duration of
the challenged practice, while it is persuasive, is not controlling . . . . As
a matter of social experimentation, the laws in question must satisfy the
requirements of the Constitution. While this Court has permitted the States to
legislate or otherwise officially act experimentally in the social and economic
fields, it has always recognized and held that this power is subject to the
limitations of the Constitution, and that the tests of the Constitution must be
met”); Reply Brief for Appellants in Briggs v. Elliott, O.
T. 1953, No. 2, pp. 18-19 (“The truth of the matter is that this is an
attempt to place local mores and customs above the high equalitarian principles
of our Government as set forth in our Constitution and particularly the
Fourteenth Amendment. This entire contention is tantamount to saying that the
vindication and enjoyment of constitutional rights recognized by this Court as
present and personal can be postponed whenever such postponement is claimed to
be socially desirable”).
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –
– [*145]

In place of the color-blind Constitution, the dissent would permit measures to
keep the races together and proscribe measures to keep the races apart. n29 See
post, at 28-34, 64-65. Although no such distinction is apparent in the
Fourteenth Amendment, the dissent would constitutionalize today’s faddish
social theories that embrace that distinction. The Constitution is not that
malleable. Even if current social theories favor classroom racial engineering
as necessary to “solve the problems at hand,” post, at 21, the
Constitution enshrines principles independent of social theories. See Plessy,
163 U.S., at 559, 16 S. Ct. 1138, 41 L. Ed. 256 (Harlan, J., dissenting)
(“The white race deems itself to be the dominant race in this country. And
so it is, in prestige, in achievements, in education, in wealth and in power.
So, I doubt not, it will continue to be for all time . . . . But in view of the
Constitution, in the eye of the law, there is in this country no superior,
dominant, ruling class of citizens. . . . Our Constitution is color-blind, and
neither knows nor tolerates classes among citizens”). Indeed, if our
history has taught us anything, it has taught us to beware of elites
bearing [*146]  racial theories. n30 See, e.g., Dred Scott
v. Sandford, 60 U.S. 393, 19 How. 393, 407, 15 L. Ed. 691 (1857)
(“They [members of the “negro African race”] had no rights which
the white man was bound to respect”). Can we really be sure that the
racial theories that motivated Dred Scott and Plessy are a relic
of the past or that future theories will be nothing but beneficent and
progressive? That is a gamble I am unwilling to take, and it is one the
Constitution does not allow.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n29 The dissent does not face the complicated questions attending its proposed
standard. For example, where does the dissent’s principle stop? Can the
government force racial mixing against the will of those being mixed? Can the
government force black families to relocate to white neighborhoods in the name
if bringing the races together? What about historically black colleges, which
have “established traditions and programs that might disproportionately
appeal to one race or another”? United States v. Fordice,
505 U.S. 717, 749, 112 S. Ct. 2727, 120 L. Ed. 2d 575 (1992) (THOMAS, J.,
concurring). The dissent does not and cannot answer these questions because the
contours of the distinction it propounds rest entirely in the eye of the
beholder. [*147]
n30 JUSTICE BREYER’s good intentions, which I do not doubt, have the shelf life
of JUSTICE BREYER’s tenure. 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 BREYER’s. See The Federalist
No. 51, p. 349 (J. Cooke ed. 1961) (“If men were angels, no government
would be necessary”). Indeed, the racial theories endorsed by the Seattle
school board should cause the dissenters to question whether local school
boards should be entrusted with the power to make decisions on the basis of
race. The Seattle school district’s Website formerly contained the following
definition of “cultural racism”: “Those aspects of society that
overtly and covertly attribute value and normality to white people and
whiteness, and devalue, stereotype, and label people of color as ‘other,’
different, less than, or render them invisible. Examples of these norms include
defining white skin tones as nude or flesh colored, having a future time
orientation, emphasizing individualism as opposed to a more collective
ideology, defining one form of English as standard . . . .” See Harrell,
School Web Site Removed: Examples of Racism Sparked Controversy, Seattle
Post-Intelligencer, June 2, 2006, p. B1. After the site was removed, the district
offered the comforting clarification that the site was not intended “‘to
hold onto unsuccessful concepts such as melting pot or colorblind
mentality.'” Ibid.; see also ante, at 22, n. 15 (plurality
opinion).

More recently, the school district sent a delegation of high school students to
a “White Privilege Conference.” See Equity and Race Relations White
Privilege Conference, https://www.seattleschools.
org/area/equityandrace/whiteprivilegeconference.xml. 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. White Privilege is like an invisible weightless knapsack of
special provisions, maps, passports, codebooks, visas, clothes, tools, and
blank checks.” See White Privilege Conference, Questions and Answers,
http://www.uccs.edu/ wpc/ faqs.htm; see generally Westneat, School District’s
Obsessed with Race, Seattle Times, Apr. 1, 2007, p. B1 (describing racial issues
in Seattle schools).
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –
– [*148]

* * *

The plans before us base school assignment decisions on students’ race. Because
“our Constitution is color-blind, and neither knows nor tolerates classes
among citizens,” such race-based decisionmaking is unconstitutional. Plessy,
supra, at 559, 16 S. Ct. 1138, 41 L. Ed. 256 (Harlan, J., dissenting). I
concur in THE CHIEF JUSTICE’s opinion so holding.

JUSTICE KENNEDY, concurring in part and concurring in the judgment.

The Nation’s schools strive to teach that our strength comes from people of
different races, creeds, and cultures uniting in commitment to the freedom of
all. In these cases two school districts in different parts of the country seek
to teach that principle by having classrooms that reflect the racial makeup of
the surrounding community. That the school districts consider these plans to be
necessary should remind us our highest aspirations are yet unfulfilled. But the
solutions mandated by these school districts must themselves be lawful. To make
race matter now so that it might not matter later may entrench the very
prejudices we seek to overcome. In my view the state-mandated racial
classifications at issue, official labels proclaiming the race of all persons
in [*149]  a broad class of citizens — elementary school students in
one case, high school students in another — are unconstitutional as the cases
now come to us.

I agree with THE CHIEF JUSTICE that we have jurisdiction to decide the cases
before us and 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.

I

The opinion of the Court and JUSTICE BREYER’s dissenting opinion (hereinafter
dissent) describe in detail the history of integration efforts in Louisville
and Seattle. These plans classify individuals [*150]  by race and
allocate benefits and burdens on that basis; and as a result, they are to be
subjected to strict scrutiny. See Johnson v. California, 543 U.S.
499, 505-506, 125 S. Ct. 1141, 160 L. Ed. 2d 949 (2005); ante, at 11.
The dissent finds that the school districts have identified a compelling interest
in increasing diversity, including for the purpose of avoiding racial
isolation. See post, at 37-45. The plurality, by contrast, does not
acknowledge that the school districts have identified a compelling interest
here. See ante, at 17-25. For this reason, among others, I do not join
Parts III-B and IV. Diversity, depending on its meaning and definition, is a
compelling educational goal a school district may pursue.

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, 125 S. Ct.
1141, 160 L. Ed. 2d 949 (quoting Adarand Constructors, Inc. v. Pena,
515 U.S. 200, 227, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995)). “Absent
searching judicial inquiry into the justification for such race-based measures,
there is simply [*151]  no way of determining what classifications
are ‘benign’ or ‘remedial’ and what classifications are in fact motivated by
illegitimate notions of racial inferiority or simple racial politics.” Richmond
v. J. A. Croson Co., 488 U.S. 469, 493, 109 S. Ct. 706, 102 L. Ed. 2d
854 (1989) (plurality opinion). And the inquiry into less restrictive
alternatives demanded by the narrow tailoring analysis requires in many cases a
thorough understanding of how a plan works. The government bears the burden of
justifying its use of individual racial classifications. As part of that burden
it must establish, in detail, how decisions based on an individual student’s
race are made in a challenged governmental program. The Jefferson County Board
of Education fails to meet this threshold mandate.

Petitioner Crystal Meredith challenges the district’s decision to deny her son
Joshua McDonald a requested transfer for his kindergarten enrollment. The
district concedes it denied his request “under the guidelines,” which
is to say, on the basis of Joshua’s race. Brief for Respondents in No. 05-915,
p. 10; see also App. in No. 05-915, p. 97. Yet the district also maintains that
the guidelines do not apply to “kindergartens,  [*152]  ”
Brief for Respondents in No. 05-915, at 4, and it fails to explain the
discrepancy. Resort to the record, including the parties’ Stipulation of Facts,
further confuses the matter. See App. in No. 05-915, 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 District’s
current student assignment plan”); id., at 29 (“The student
assignment plan does not apply to . . . students in Primary 1”); see also
Stipulation of Facts in No. 3:02-CV-00620-JGH; Doc. 32, Exh. 44, p. 6 (2003-04
Jefferson County Public Schools Elementary Student Assignment Application,
Section B) (“Assignment is made to a school for Primary 1 (Kindergarten)
through Grade Five as long as racial guidelines are maintained. If the Primary
1 (Kindergarten) placement does not enhance racial balance, a new application
must be completed for Primary 2 (Grade One)”).

The discrepancy identified is not some simple and straightforward error that
touches only upon the peripheries of the district’s use of individual racial
classifications. To the contrary, Jefferson County in its briefing has
explained how and [*153]  when it employs these classifications only
in terms so broad and imprecise that they cannot withstand strict scrutiny.
See, e.g., Brief for Respondents in No. 05-915, at 4-10. While it
acknowledges that racial classifications are used to make certain assignment
decisions, it fails to make clear, for example, who makes the decisions; what
if any oversight is employed; the precise circumstances in which an assignment
decision will or will not be made on the basis of race; or how it is determined
which of two similarly situated children will be subjected to a given
race-based decision. See ibid.; see also App. in No. 05-915, at
38, 42 (indicating that decisions are “based on . . . the racial
guidelines” without further explanation); id., at 81 (setting forth
the blanket mandate that “schools shall work cooperatively with each other
and with central office to ensure that enrollment at all schools [in question]
is within the racial guidelines annually and to encourage that the enrollment
at all schools progresses toward the midpoint of the guidelines”); id.,
at 43, 76-77, 81-83; McFarland v. Jefferson Cty. Public Schools,
330 F. Supp. 2d 834, 837-845, 855-862 (WD Ky. 2004). [*154]

When litigation, as here, involves a “complex, comprehensive plan that
contains multiple strategies for achieving racially integrated schools,”
Brief for Respondents in No. 05-915, at 4, these ambiguities become all the
more problematic in light of the contradictions and confusions that result.
Compare, e.g., App. in No. 05-915, at 37 (“Each [Jefferson County]
school . . . has a designated geographic attendance area, which is called the
‘resides area’ of the school[, and each] such school is the ‘resides school’
for those students whose parent’s or guardian’s residence address is within the
school’s geographic attendance area”); id., at 82 (“All
elementary students . . . shall be assigned to the school which serves the area
in which they reside”); and Brief for Respondents in No. 05-915, at 5
(“There are no selection criteria for admission to [an elementary school
student’s] resides school, except attainment of the appropriate age and
completion of the previous grade”), with App. in No. 05-915, at 38
(“Decisions to assign students to schools within each cluster are based on
available space within the [elementary] schools and the racial guidelines in
the District’s [*155]  current student assignment plan”); id.,
at 82 (acknowledging that a student may not be assigned to his or her resides
school if it “has reached . . . the extremes of the racial
guidelines”).

One can attempt to identify a construction of Jefferson County’s student
assignment plan that, at least as a logical matter, complies with these
competing propositions; but this does not remedy the underlying problem.
Jefferson County fails to make clear to this Court — even in the limited
respects implicated by Joshua’s initial assignment and transfer denial —
whether 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
ad hoc manner that a less forgiving reading of the record would suggest.
When a court subjects governmental action to strict scrutiny, it cannot
construe ambiguities in favor of the State.

As for the Seattle case, the school district has gone further in describing the
methods and criteria used to determine assignment decisions on the basis of
individual racial classifications. See, e.g., Brief for Respondents in
No. 05-908, p. 5-11. The district, nevertheless, has [*156]  failed
to make an adequate showing in at least one respect. It has failed to explain
why, in a district composed of a diversity of races, with fewer than half of
the students classified as “white,” it has employed the crude racial
categories of “white” and “non-white” as the basis for its
assignment decisions. See, e.g., id., at 1-11.

The district has identified its purposes as follows: “(1) to promote the
educational benefits of diverse school enrollments; (2) to reduce the
potentially harmful effects of racial isolation by allowing students the
opportunity to opt out of racially isolated schools; and (3) to make sure that
racially segregated housing patterns did not prevent non-white students from having
equitable access to the most popular over-subscribed schools.” Id.,
at 19. Yet the school district does not explain how, in the context of its
diverse student population, a blunt distinction between “white” and
“non-white” furthers these goals. As the Court explains, “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,  [*157]  25
percent African-American, 25 percent Latino, and 20 percent white students
would not.” Ante, at 15-16; see also Brief for United States as Amicus
Curiae
in No. 05-908, pp. 13-14. Far from being narrowly tailored to its
purposes, this system threatens to defeat its own ends, and the school district
has provided no convincing explanation for its design. Other problems are
evident in Seattle’s system, but there is no need to address them now. As the
district fails to account for the classification system it has chosen, despite
what appears to be its ill fit, Seattle has not shown its plan to be narrowly
tailored to achieve its own ends; and thus it fails to pass strict scrutiny.

II

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 [*158]  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 “the way to stop discrimination on the basis of
race is to stop discriminating on the basis of race,” ante, at
40-41, is not sufficient to decide these cases. Fifty years of experience since
Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L.
Ed. 873 (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 [*159]  accept
the status quo of racial isolation in schools, it is, in my view, profoundly
mistaken.

The statement by Justice Harlan that “our Constitution is
color-blind” was most certainly justified in the context of his dissent in
Plessy v. Ferguson, 163 U.S. 537, 559, 16 S. Ct. 1138, 41 L. Ed.
256 (1896). The Court’s decision in that case was a grievous error it took far
too long to overrule. Plessy, of course, concerned official
classification by race applicable to all persons who sought to use railway
carriages. And, as an aspiration, Justice Harlan’s axiom must command our
assent. In the real world, it is regrettable to say, it cannot be a universal
constitutional principle.

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, 539 U.S. 306, 123 S. Ct.
2325, 156 L. Ed. 2d 304 (2003); id., at 387-388, 123 S. Ct. 2325, 156 L.
Ed. 2d 304 (KENNEDY, J., dissenting). If school authorities are concerned that
the student-body compositions of certain schools interfere with the objective
of offering an equal educational [*160]  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, 517 U.S. 952, 958, 116 S. Ct. 1941, 135 L. Ed. 2d 248 (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 [*161]
before strict scrutiny can be found applicable in redistricting cases than in
cases of ‘classifications based explicitly on race'” (quoting Adarand,
515 U.S., at 213, 115 S. Ct. 2097, 132 L. Ed. 2d 158)). 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.

Each respondent has asserted that its assignment of individual students by race
is permissible because there is no other way to avoid racial isolation in the
school districts. Yet, as explained, each has failed to provide the support
necessary for that proposition. Cf. Croson, 488 U.S., at 501, 109 S. Ct.
706, 102 L. Ed. 2d 854 (“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 [*162]
analysis”). And individual racial classifications employed in this manner
may be considered legitimate only if they are a last resort to achieve a
compelling interest. See id., at 519, 109 S. Ct. 706, 102 L. Ed. 2d 854
(KENNEDY, J., concurring in part and concurring in judgment).

In the cases before us it is noteworthy that the number of students whose
assignment depends on express racial classifications is limited. I join Part
III-C of the Court’s opinion because I agree that in the context of these
plans, the small number of assignments affected suggests that the schools could
have achieved their stated ends through different means. These include the
facially race-neutral means set forth above or, if necessary, a more nuanced,
individual evaluation of school needs and student characteristics that might
include race as a component. The latter approach would be informed by Grutter,
though of course the criteria relevant to student placement would differ based
on the age of the students, the needs of the parents, and the role of the
schools.

III

The dissent rests on the assumptions that these sweeping race-based
classifications of persons are permitted by existing precedents; that its
confident [*163]  endorsement of race categories for each child in a
large segment of the community presents no danger to individual freedom in
other, prospective realms of governmental regulation; and that the racial
classifications used here cause no hurt or anger of the type the Constitution
prevents. Each of these premises is, in my respectful view, incorrect.

A

The dissent’s reliance on this Court’s 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. And in his critique of that analysis, I am in many
respects in agreement with THE CHIEF JUSTICE. The conclusions he has set forth
in Part III-A of the Court’s 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. See ante,
at 12-13. As the Court notes, we recognized the compelling nature of the
interest in remedying past intentional discrimination in Freeman v. Pitts,
503 U.S. 467, 494, 112 S. Ct. 1430, 118 L. Ed. 2d 108 (1992), [*164]
and of the interest in diversity in higher education in Grutter. At the
same time, these compelling interests, in my view, do help inform the present
inquiry. And to the extent the plurality opinion can be interpreted to
foreclose consideration of these interests, I disagree with that reasoning.

As to the dissent, the general conclusions upon which it relies have no
principled limit and would result in the broad acceptance of governmental
racial classifications in areas far afield from schooling. The dissent’s
permissive strict scrutiny (which bears more than a passing resemblance to rational-basis
review) could invite widespread governmental deployment of racial
classifications. There is every reason to think that, if the dissent’s
rationale were accepted, Congress, assuming an otherwise proper exercise of its
spending authority or commerce power, could mandate either the Seattle or the
Jefferson County plans nationwide. There seems to be no principled rule,
moreover, to limit the dissent’s rationale to the context of public schools.
The dissent emphasizes local control, see post, at 48-49, the unique
history of school desegregation, see post, at 2, and the fact
that [*165]  these plans make less use of race than prior plans, see post,
at 57, but these factors seem more rhetorical than integral to the analytical
structure of the opinion.

This brings us to the dissent’s reliance on the Court’s opinions in Gratz
v. Bollinger, 539 U.S. 244, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (2003),
and Grutter, 539 U.S. 306, 123 S. Ct. 2325, 156 L. Ed. 2d 304. If
today’s dissent said it was adhering to the views expressed in the separate
opinions in Gratz and Grutter, see Gratz, 539 U.S., at
281, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (BREYER, J., concurring in judgment); id.,
at 282, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (STEVENS, J., dissenting); id.,
at 291, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (SOUTER, J., dissenting); id.,
at 298, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (GINSBURG, J., dissenting); Grutter,
supra
, at 344, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (GINSBURG, J.,
concurring), that would be understandable, and likely within the tradition —
to be invoked, in my view, in rare instances — that permits us to maintain our
own positions in the face of stare decisis when fundamental points of
doctrine are at stake. See, e.g., Federal Maritime Comm’n v. South
Carolina Ports Authority
, 535 U.S. 743, 770, 122 S. Ct. 1864, 152 L. Ed. 2d
962 (2002) (STEVENS, J., dissenting). To say, however, that
we [*166]  must ratify the racial classifications here at issue based
on the majority opinions in Gratz and Grutter is, with all respect,
simply baffling.

Gratz involved a system where race was not the entire classification.
The procedures in Gratz placed much less reliance on race than do the
plans at issue here. 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. See Regents of Univ. of Cal. v. Bakke,
438 U.S. 265, 312-314, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978) (opinion of
Powell, J.). Even so the race factor was found to be invalid. Gratz, supra,
at 251, 123 S. Ct. 2411, 156 L. Ed. 2d 257. If Gratz is to be the
measure, the racial classification systems here are a fortiori invalid.
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. Under no fair reading, though,
can the majority opinion in Gratz be cited as authority to sustain the
racial classifications [*167]  under consideration here.

The same must be said for the controlling opinion in Grutter. There the
Court sustained a system that, it found, was flexible enough to take into
account “all pertinent elements of diversity,” 539 U.S., at 341, 123
S. Ct. 2325, 156 L. Ed. 2d 304 (internal quotation marks omitted), and
considered race as only one factor among many, id., at 340, 123 S. Ct.
2325, 156 L. Ed. 2d 304. Seattle’s plan, by contrast, relies upon a mechanical
formula that has denied hundreds of students their preferred schools on the
basis of three rigid criteria: placement of siblings, distance from schools,
and race. 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. That, though, is not the case. The only support today’s
dissent can draw from Grutter must be found in its various separate
opinions, not in the opinion filed for the Court.

B

To uphold these programs the Court is asked to brush aside two concepts of
central importance for determining the validity of laws and decrees designed to
alleviate the hurt and adverse consequences resulting from race discrimination.
The first is the difference between [*168]  de jure and de
facto
segregation; the second, the presumptive invalidity of a State’s use
of racial classifications to differentiate its treatment of individuals.

In the immediate aftermath of Brown the Court addressed other instances
where laws and practices enforced de jure segregation. See, e.g.,
Loving
v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010
(1967) (marriage); New Orleans City Park Improv. Ass’n v. Detiege,
358 U.S. 54, 79 S. Ct. 99, 3 L. Ed. 2d 46 (1958) (per curiam) (public
parks); Gayle v. Browder, 352 U.S. 903, 77 S. Ct. 145, 1 L. Ed.
2d 114 (1956) (per curiam) (buses); Holmes v. Atlanta, 350
U.S. 879, 76 S. Ct. 141, 100 L. Ed. 776 (1955) (per curiam) (golf
courses); Mayor of Baltimore v. Dawson, 350 U.S. 877, 76 S. Ct.
133, 100 L. Ed. 774 (1955) (per curiam) (beaches). But with reference to
schools, the effect of the legal wrong proved most difficult to correct. To
remedy the wrong, school districts that had been segregated by law had no
choice, whether under court supervision or pursuant to voluntary desegregation
efforts, but to resort to extraordinary measures including individual student
and teacher assignment to schools based on race. See, e.g., Swann v. Charlotte-Mecklenburg
Bd. of Ed.
, 402 U.S. 1, 8-10, 91 S. Ct. 1267, 28 L. Ed. 2d 554
(1971); [*169]  see also Croson, 488 U.S., at 519, 109 S. Ct.
706, 102 L. Ed. 2d 854 (KENNEDY, J., concurring in part and concurring in
judgment) (noting that racial classifications “may be the only adequate
remedy after a judicial determination that a State or its instrumentality has
violated the Equal Protection Clause”). So it was, as the dissent
observes, see post, at 13-14, that Louisville classified children by
race in its school assignment and busing plan in the 1970’s.

Our cases recognized a fundamental difference between those school districts
that had engaged in de jure segregation and those whose segregation was
the result of other factors. School districts that had engaged in de jure
segregation had an affirmative constitutional duty to desegregate; those that
were de facto segregated did not. Compare Green v. County
School Bd.
, 391 U.S. 430, 437-438, 88 S. Ct. 1689, 20 L. Ed. 2d 716 (1968),
with Milliken v. Bradley, 418 U.S. 717, 745, 94 S. Ct. 3112, 41
L. Ed. 2d 1069 (1974). The distinctions between de jure and de facto
segregation extended to the remedies available to governmental units in
addition to the courts. For example, in Wygant v. Jackson Bd. of Ed.,
476 U.S. 267, 274, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (1986), [*170]
the plurality noted: “This Court never has held that societal
discrimination alone is sufficient to justify a racial classification. Rather,
the Court has insisted upon some showing of prior discrimination by the governmental
unit involved before allowing limited use of racial classifications in order to
remedy such discrimination.” The Court’s decision in Croson, supra,
reinforced the difference between the remedies available to redress de facto
and de jure discrimination:

“To accept [a] claim
that past societal discrimination alone can serve as the basis for rigid racial
preferences would be to open the door to competing claims for ‘remedial relief’
for every disadvantaged group. The dream of a Nation of equal citizens in a
society where race is irrelevant to personal opportunity and achievement would
be lost in a mosaic of shifting preferences based on inherently unmeasurable
claims of past wrongs.” Id., at 505-506, 109 S. Ct. 706, 102 L. Ed.
2d 854.

From the standpoint of the victim, it is true, an injury stemming from racial
prejudice can hurt as much when the demeaning treatment based on race identity
stems from bias masked deep within the social order as [*171]  when
it is imposed by law. The distinction between government and private action,
furthermore, can be amorphous both as a historical matter and as a matter of
present-day finding of fact. Laws arise from a culture and vice versa. Neither
can assign to the other all responsibility for persisting injustices.

Yet, like so many other legal categories that can overlap in some instances,
the constitutional distinction between de jure and de facto
segregation has been thought to be an important one. It must be conceded its
primary function in school cases was to delimit the powers of the Judiciary in
the fashioning of remedies. See, e.g., Milliken, supra, at 746, 94 S.
Ct. 3112, 41 L. Ed. 2d 1069. The distinction ought not to be altogether
disregarded, however, when we come to that most sensitive of all racial issues,
an attempt by the government to treat whole classes of persons differently
based on the government’s systematic classification of each individual by race.
There, too, the distinction serves as a limit on the exercise of a power that
reaches to the very verge of constitutional authority. Reduction of an
individual to an assigned racial identity for differential treatment is among
the [*172]  most pernicious actions our government can undertake. The
allocation of governmental burdens and benefits, contentious under any circumstances,
is even more divisive when allocations are made on the basis of individual
racial classifications. See, e.g., Regents of Univ. of Cal. v. Bakke,
438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978); Adarand, 515 U.S.
200, 115 S. Ct. 2097, 132 L. Ed. 2d 158.

Notwithstanding these concerns, allocation of benefits and burdens through
individual racial classifications was found sometimes permissible in the
context of remedies for de jure wrong. Where there has been de jure
segregation, there is a cognizable legal wrong, and the courts and legislatures
have broad power to remedy it. The remedy, though, was limited in time and
limited to the wrong. The Court has allowed school districts to remedy their
prior de jure segregation by classifying individual students based on
their race. See North Carolina Bd. of Ed. v. Swann, 402 U.S. 43,
45-46, 91 S. Ct. 1284, 28 L. Ed. 2d 586 (1971). 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. [*173]

The cases here were argued upon the assumption, and come to us on the premise,
that the discrimination in question did not result from de jure actions.
And when de facto discrimination is at issue our tradition has been that
the remedial rules are different. The State must seek alternatives to the
classification and differential treatment of individuals by race, at least
absent some extraordinary showing not present here.

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. See post,
at 35 (citing 426 F.3d 1162, 1193-1196 (CA9 2005) (concurring opinion) (citing Comfort
v. Lynn School Comm., 418 F.3d 1, 27-29 (CA1 2005) (Boudin, C. J.,
concurring))). 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 [*174]  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 [*175]  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 [*176]
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 [*177]  of racial classifications.

With this explanation I concur in the judgment of the Court.

DISSENT BY: STEVENS; BREYER

DISSENT: JUSTICE STEVENS, dissenting.

While I join JUSTICE BREYER’s eloquent and unanswerable dissent in its entirety,
it is appropriate to add these words.

There is a cruel irony in THE CHIEF JUSTICE’s reliance on our decision in Brown
v. Board of Education, 349 U.S. 294, 75 S. Ct. 753, 99 L. Ed. 1083, 71
Ohio Law Abs. 584 (1955). The first sentence in the concluding paragraph of his
opinion states: “Before Brown, schoolchildren were told where they
could and could not go to school based on the color of their skin.” Ante,
at 40. This sentence reminds me of Anatole France’s observation: “The
majestic equality of the law, forbids rich and poor alike to sleep under
bridges, to beg in the streets, and to steal their bread.” n1 THE CHIEF
JUSTICE fails to note that it was only black schoolchildren who were so
ordered; indeed, the history books do not tell stories of white children
struggling to attend black schools. n2 In this and other ways, THE CHIEF
JUSTICE rewrites the history of one of this Court’s most important decisions.
Compare ante, at 39 (“history will be heard”), with Brewer
v. Quarterman, 550 U.S.    ,    , 127 S.
Ct. 1706, 167 L. Ed. 2d 622 (2007) (slip op., at 11 [*178]  )
(ROBERTS, C. J., dissenting) (“It is a familiar adage that history is
written by the victors”).

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n1 Le Lys Rouge (The Red Lily) 95 (W. Stephens transl. 6th ed. 1922).

n2 See, e.g., J. Wilkinson, From Brown to Bakke 11 (1979)
(“Everyone understands that Brown v. Board of Education
helped deliver the Negro from over three centuries of legal bondage”);
Black, The Lawfulness of the Segregation Decisions, 69 Yale L. J. 421, 424-425
(“History, too, tells us that segregation was imposed on one race by the
other race; consent was not invited or required. Segregation in the South grew
up and is kept going because and only because the white race has wanted it that
way — an incontrovertible fact which itself hardly consorts with
equality”).
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

THE CHIEF JUSTICE rejects the conclusion that the racial classifications at
issue here should be viewed differently than others, because they do not impose
burdens on one race alone and do [*179]  not stigmatize or exclude.
n3 The only justification for refusing to acknowledge the obvious importance of
that difference is the citation of a few recent opinions — none of which even
approached unanimity — grandly proclaiming that all racial classifications
must be analyzed under “strict scrutiny.” See, e.g., Adarand
Constructors, Inc.
v. Pe

a, 515 U.S. 200, 227, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995). Even
today, two of our wisest federal judges have rejected such a wooden reading of
the Equal Protection Clause in the context of school integration. See 426 F.3d
1162, 1193-1196 (CA9 2005) (Kozinski, J., concurring); Comfort v. Lynn
School Comm.,
418 F.3d 1, 27-29 (CA1 2005) (Boudin, C. J., concurring). The
Court’s misuse of the three-tiered approach to Equal Protection analysis merely
reconfirms my own view that there is only one such Clause in the Constitution.
See Craig v. Boren, 429 U.S. 190, 211, 97 S. Ct. 451, 50 L. Ed.
2d 397 (1976) (concurring opinion). n4

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n3 I have long adhered to the view that a decision to exclude a member of a
minority because of his race is fundamentally different from a decision to
include a member of a minority for that reason. See, e.g., Adarand
Constructors, Inc.
v. Pena, 515 U.S. 200, 243, 248, n. 6, 115 S. Ct.
2097, 132 L. Ed. 2d 158 (1995) (STEVENS, J., dissenting); Wygant v. Jackson
Bd. of Ed.
, 476 U.S. 267, 316, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (1986)
(same). This distinction is critically important in the context of education.
While the focus of our opinions is often on the benefits that minority
schoolchildren receive from an integrated education, see, e.g., ante,
at 15 (THOMAS, J., concurring), children of all races benefit from
integrated classrooms and playgrounds, see Wygant, 476 U.S., at 316, 106
S. Ct. 1842, 90 L. Ed. 2d 260 (“The fact that persons of different races
do, indeed, have differently colored skin, may give rise to a belief that there
is some significant difference between such persons. The inclusion of minority
teachers in the educational process inevitably tends to dispel that illusion
whereas their exclusion could only tend to foster it”). [*180]
n4 THE CHIEF JUSTICE twice cites my dissent in Fullilove v. Klutznick,
448 U.S. 448, 100 S. Ct. 2758, 65 L. Ed. 2d 902 (1980). See ante, at 12,
23. In that case, I stressed the importance of confining a remedy for past
wrongdoing to the members of the injured class. See 448 U.S., at 539, 100 S.
Ct. 2758, 65 L. Ed. 2d 902. The present cases, unlike Fullilove but like
our decision in Wygant, 476 U.S. 267, 106 S. Ct. 1842, 90 L. Ed. 2d 260,
require us to “ask whether the Board[s’] actionss advance the public
interest in educating children for the future,” id., at 313,
106 S. Ct. 1842, 90 L. Ed. 2d 260 (STEVENS, J., dissenting) (emphasis added).
See ibid. (“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”). See also Adarand, 515 U.S., at
261-262, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995) (STEVENS, J., dissenting)
(“This program, then, if in part a remedy for past discrimination, is most
importantly a forward-looking response to practical problems faced by minority
subcontractors”).
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

If [*181]  we look at cases decided during the interim between Brown
and Adarand, we can see how a rigid adherence to tiers of scrutiny
obscures Brown‘s clear message. Perhaps the best example is provided by
our approval of the decision of the Supreme Judicial Court of Massachusetts in
1967 upholding a state statute mandating racial integration in that State’s
school system. See School Comm. of Boston v. Board of Education, 352
Mass. 693, 227 N.E.2d 729. n5 Rejecting arguments comparable to those that the
plurality accepts today, n6 that court noted: “It would be the height of
irony if the racial imbalance act, enacted as it was with the laudable purpose
of achieving equal educational opportunities, should, by prescribing school
pupil allocations based on race, founder on unsuspected shoals in the
Fourteenth Amendment.” Id., at 698, 227 N. E. 2d, at 733 (footnote
omitted).

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n5 THE CHIEF JUSTICE states that the Massachusetts racial imbalance Act did not
require express classifications. See ante, at 31-32, n. 16. This is
incorrect. The Massachusetts Supreme Judicial Court expressly stated:

“The racial imbalance act requires the school committee of every
municipality annually to submit statistics showing the percentage of nonwhite
pupils in all public schools and in each school. Whenever the board finds that
racial imbalance exists in a public school, it shall give written notice to the
appropriate school committee, which shall prepare a plan to eliminate imbalance
and file a copy with the board. ‘The term “racial imbalance” refers
to a ratio between nonwhite and other students in public schools which is
sharply out of balance with the racial composition of the society in which nonwhite
children study, serve and work. For the purpose of this section, racial
imbalance shall be deemed to exist when the per cent of nonwhite students in
any public school is in excess of fifty per cent of the total number of
students in such school.'” 352 Mass., at 695, 227 N. E. 2d, at
731. [*182]
n6 Compare ante, at 39 (“It was not the inequality of the
facilities but the fact of legally separating children on the basis of race on
which the Court relied to find a constitutional violation in 1954”), with
Juris. Statement in School Comm. of Boston v. Board of Education, O.
T. 1967, No. 67-759, p. 11 (“It is implicit in Brown v. Board of
Education of Topeka,
347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873, that color
or race is a constitutionally impermissible standard for the assignment of
school children to public schools. We construe Brown as endorsing Mr.
Justice Harlan’s classical statement in Plessy v. Ferguson, 163
U.S. 537, 539, 16 S. Ct. 1138, 41 L. Ed. 256: ‘Our constitution is color-blind,
and neither knows nor tolerates classes among citizens'”).
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

Invoking our mandatory appellate jurisdiction, n7 the Boston plaintiffs
prosecuted an appeal in this Court. Our ruling on the merits simply stated that
the appeal was “dismissed for want of a substantial federal
question.” School Comm. of Boston v. Board of Education, 389
U.S. 572, 88 S. Ct. 692, 19 L. Ed. 2d 778 (1968) (per curiam). That
decision not [*183]  only expressed our appraisal of the merits of
the appeal, but it constitutes a precedent that the Court overrules today. The
subsequent statements by the unanimous Court in Swann v. Charlotte-Mecklenburg
Bd. of Ed.,
402 U.S. 1, 16, 91 S. Ct. 1267, 28 L. Ed. 2d 554 (1971), by
then-Justice Rehnquist in chambers in Bustop, Inc. v. Los Angeles Bd.
of Ed.,
439 U.S. 1380, 1383, 99 S. Ct. 40, 58 L. Ed. 2d 88 (1978), and by
the host of state court decisions cited by JUSTICE BREYER, see post,
25-27, n8 were fully consistent with that disposition. Unlike today’s decision,
they were also entirely loyal to Brown.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n7 In 1968 our mandatory jurisdiction was defined by the provision of the 1948
Judicial Code then codified at 28 U.S.C. § 1257, see 62 Stat. 929; that
provision was repealed in 1988, see 102 Stat. 662.

n8 For example, prior to our decision in School Comm. of Boston, the
Illinois Supreme Court had issued an unpublished opinion holding
unconstitutional a similar statute aimed at eliminating racial imbalance in
public schools. See Juris. Statement in School Comm. of Boston v. Board
of Education,
O. T. 1967, No. 67-759, at 9 (“Unlike the Massachusetts
Court, the Illinois Supreme Court has recently held its law to eliminate racial
imbalance unconstitutional on the ground that it violated the Equal Protection
Clause of the Fourteenth Amendment”); ibid., n. 1. However, shortly
after we dismissed the Massachusetts suit for want of a substantial federal
question, the Illinois Supreme Court reversed course and upheld its statute in
the published decision that JUSTICE BREYER extensively quotes in his dissent.
See Tometz v. Board of Ed., Waukegan School Dist. No. 6, 39 Ill.
2d 593, 237 N.E.2d 498 (1968). In so doing, the Illinois Supreme Court acted in
explicit reliance on our decision in School Comm. of Boston. See 39 Ill.
2d, at 599-600, 237 N. E. 2d, at 502 (“Too, the United States Supreme
Court on January 15, 1968, dismissed an appeal in School Committee of Boston
v. Board of Education
, (Mass. 1967) 352 Mass. 693, 227 N.E.2d 729, which
challenged the statute providing for elimination of racial imbalance in public
schools ‘for want of a substantial federal question.’ 389 U.S. 572, 88 S. Ct.
692, 19 L. Ed. 2d 778″).
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –
– [*184]

The Court has changed significantly since it decided School Comm. of Boston
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.

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,
347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (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  [*185]
permits local communities to adopt desegregation plans even where it
does not require them to do so.

The plurality pays inadequate attention to this law, to past opinions’
rationales, their language, and the contexts in which they arise. As a result,
it reverses course and reaches the wrong conclusion. In doing so, it distorts
precedent, it misapplies the relevant constitutional principles, it announces
legal rules that will obstruct efforts by state and local governments to deal
effectively with the growing resegregation of public schools, it threatens to
substitute for present calm a disruptive round of race-related litigation, and
it undermines Brown‘s promise of integrated primary and secondary
education that local communities have sought to make a reality. This cannot be
justified in the name of the Equal Protection Clause.

I

Facts

The historical and factual context in which these cases arise is critical. In Brown,
this Court held that the government’s segregation of schoolchildren by race
violates the Constitution’s promise of equal protection. The Court emphasized
that “education is perhaps the most important function of state and local
governments.”  [*186]  347 U.S., at 493, 74 S. Ct. 686, 98 L.
Ed. 2d 873. And it thereby set the Nation on a path toward pub-lic school
integration.

In dozens of subsequent cases, this Court told school districts previously
segregated by law what they must do at a minimum to comply with Brown‘s
constitutional holding. The measures required by those cases often included
race-conscious practices, such as mandatory busing and race-based restrictions
on voluntary transfers. See, e.g., Columbus Bd. of Ed. v. Penick,
443 U.S. 449, 455, n. 3, 99 S. Ct. 2941, 61 L. Ed. 2d 666 (1979); Davis
v. Board of School Comm’rs of Mobile Cty., 402 U.S. 33, 37-38, 91 S. Ct.
1289, 28 L. Ed. 2d 577 (1971); Green v. County School Board, 391
U.S. 430, 441-442, 88 S. Ct. 1689, 20 L. Ed. 2d 716 (1968).

Beyond those minimum requirements, the Court left much of the determination of
how to achieve integration to the judgment of local communities. Thus, in
respect to race-conscious desegregation measures that the Constitution permitted,
but did not require (measures similar to those at issue here), this
Court unanimously stated:

“School authorities
are traditionally charged with broad power to formulate and implement
educational policy and might well conclude,  [*187]  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
.” Swann
v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 16, 91 S. Ct. 1267, 28
L. Ed. 2d 554 (1971) (emphasis added).

As a result, different districts — some acting under court decree, some acting
in order to avoid threatened lawsuits, some seeking to comply with federal
administrative orders, some acting purely voluntarily, some acting after
federal courts had dissolved earlier orders — adopted, modified, and
experimented with hosts of different kinds of plans, including race-conscious
plans, all with a similar objective: greater racial integration of public
schools. See F. Welch & A. Light, New Evidence on School Desegregation v
(1987) (hereinafter Welch) (prepared for the Commission on Civil Rights)
(reviewing a sample of 125 school districts, constituting 20% of national
public school enrollment, that had experimented with nearly 300 different plans
over 18 years). The techniques that [*188]  different districts have
employed range “from voluntary transfer programs to mandatory
reassignment.” Id., at 21. And the design of particular plans has
been “dictated by both the law and the specific needs of the
district.” Ibid.

Overall these efforts brought about considerable racial integration. More
recently, however, progress has stalled. Between 1968 and 1980, the number of
black children attending a school where minority children constituted more than
half of the school fell from 77% to 63% in the Nation (from 81% to 57% in the
South) but then reversed direction by the year 2000, rising from 63% to 72% in
the Nation (from 57% to 69% in the South). Similarly, between 1968 and 1980,
the number of black children attending schools that were more than 90% minority
fell from 64% to 33% in the Nation (from 78% to 23% in the South), but that too
reversed direction, rising by the year 2000 from 33% to 37% in the Nation (from
23% to 31% in the South). 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%. Of these, 2.3 million were black and Latino students, and only
72,000 were [*189]  white. Today, more than one in six black children
attend a school that is 99-100% minority. See Appendix A, infra. 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.

The upshot is that myriad school districts operating in myriad circumstances
have devised myriad plans, often with race-conscious elements, all for the sake
of eradicating earlier school segregation, bringing about integration, or
preventing retrogression. Seattle and Louisville are two such districts, and
the histories of their present plans set forth typical school integration
stories.

I describe those histories at length in order to highlight three important
features of these cases. First, the school districts’ plans serve
“compelling interests” and are “narrowly tailored” on any
reasonable definition of those terms. Second, the distinction between de
jure
segregation (caused by school systems) and de facto segregation
(caused, e.g., by housing patterns or generalized societal
discrimination) is meaningless in the present context, thereby dooming
the [*190]  plurality’s endeavor to find support for its views in
that distinction. Third, real-world efforts to substitute racially diverse for
racially segregated schools (however caused) are complex, to the point where
the Constitution cannot plausibly be interpreted to rule out categorically all
local efforts to use means that are “conscious” of the race of
individuals.

In both Seattle and Louisville, the local school districts began with schools
that were highly segregated in fact. In both cities plaintiffs filed lawsuits
claiming unconstitutional segregation. In Louisville, a federal district court
found that school segregation reflected pre-Brown state laws separating
the races. In Seattle, the plaintiffs alleged that school segregation
unconstitutionally reflected not only generalized societal discrimination and
residential housing patterns, but also school board policies and actions
that had helped to create, maintain, and aggravate racial segregation. In
Louisville, a federal court entered a remedial decree. In Seattle, the parties
settled after the school district pledged to undertake a desegregation plan. In
both cities, the school boards adopted plans designed to
achieve [*191]  integration by bringing about more racially diverse
schools. 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. And in each city, the
school boards’ plans have evolved over time in ways that progressively diminish
the plans’ use of explicit race-conscious criteria.

The histories that follow set forth these basic facts. They are based upon
numerous sources, which for ease of exposition I have cataloged, along with
their corresponding citations, at Appendix B, infra.

A

Seattle

1. Segregation, 1945 to 1956. During and just after World War II,
significant numbers of black Americans began to make Seattle their home. Few
black residents lived outside the central section of the city. Most worked at
unskilled jobs. Although black students made up about 3% of the total Seattle
population in the mid-1950’s, nearly all black children attended schools where
a majority of the population was minority. Elementary schools in central
Seattle were between 60% and 80% black; Garfield, the central district high
school, was more than 50% [*192]  minority; schools outside the central
and southeastern sections of Seattle were virtually all white.

2. Preliminary Challenges, 1956 to 1969. In 1956, a memo for the Seattle
School Board reported that school segregation reflected not only segregated
housing patterns but also school board policies that permitted white students
to transfer out of black schools while restricting the transfer of black
students into white schools. In 1958, black parents whose children attended
Harrison Elementary School (with a black student population of over 75%) wrote
the Seattle board, complaining that the “‘boundaries for the Harrison
Elementary School were not set in accordance with the long-established
standards of the School District . . . but were arbitrarily set with an end to
excluding colored children from McGilvra School, which is adjacent to the
Harrison school district.'”

In 1963, at the insistence of the National Association for the Advancement of
Colored People (NAACP) and other community groups, the school board adopted a
new race-based transfer policy. The new policy added an explicitly racial
criterion: If a place exists in a school, then, irrespective of other transfer
criteria,  [*193]  a white student may transfer to a predominantly
black school, and a black student may transfer to a predominantly white school.

At that time one high school, Garfield, was about two-thirds minority; eight
high schools were virtually all white. In 1963, the transfer program’s first
year, 239 black students and 8 white students transferred. In 1969, about 2,200
(of 10,383 total) of the district’s black students and about 400 of the
district’s white students took advantage of the plan. For the next decade,
annual program transfers remained at approximately this level.

3. The NAACP’s First Legal Challenge and Seattle’s Response, 1969 to 1977.
In 1969 the NAACP filed a federal lawsuit against the school board, claiming
that the board had “unlawfully and unconstitutionally”
“established” and “maintained” a system of “racially
segregated public schools.” The complaint said that 77% of black public
elementary school students in Seattle attended 9 of the city’s 86 elementary
schools and that 23 of the remaining schools had no black students at all.
Similarly, of the 1,461 black students enrolled in the 12 senior high schools
in Seattle, 1,151 (or 78.8%) attended 3 senior high schools,  [*194]
and 900 (61.6%) attended a single school, Garfield.

The complaint charged that the school board had brought about this segregated
system in part by “making and enforcing” certain “rules and regulations,”
in part by “drawing . . . boundary lines” and “executing school
attendance policies” that would create and maintain “predominantly
Negro or non-white schools,” and in part by building schools “in such
a manner as to restrict the Negro plaintiffs and the class they represent to
predominantly negro or non-white schools.” The complaint also charged that
the board discriminated in assigning teachers.

The board responded to the lawsuit by introducing a plan that required
race-based transfers and mandatory busing. The plan created three new middle
schools at three school buildings in the predominantly white north end. It then
created a “mixed” student body by assigning to those schools students
who would otherwise attend predominantly white, or predominantly black, schools
elsewhere. It used explicitly racial criteria in making these assignments (i.e.,
it deliberately assigned to the new middle schools black students, not white
students, from the black schools and white students, not [*195]
black students, from the white schools). And it used busing to transport the
students to their new assignments. The plan provoked considerable local
opposition. Opponents brought a lawsuit. But eventually a state court found
that the mandatory busing was lawful.

In 1976-1977, the plan involved the busing of about 500 middle school students
(300 black students and 200 white students). Another 1,200 black students and
400 white students participated in the previously adopted voluntary transfer
program. Thus about 2,000 students out of a total district population of about
60,000 students were involved in one or the other transfer program. At that
time, about 20% or 12,000 of the district’s students were black. And the board
continued to describe 26 of its 112 schools as “segregated.”

4. The NAACP’s Second Legal Challenge, 1977. In 1977, the NAACP filed
another legal complaint, this time with the federal Department of Health,
Education, and Welfare’s Office for Civil Rights (OCR). The complaint alleged
that the Seattle School Board had created or perpetuated unlawful racial
segregation through, e.g., certain school-transfer criteria, a
construction program that needlessly built [*196]  new schools in
white areas, district line-drawing criteria, the maintenance of inferior
facilities at black schools, the use of explicit racial criteria in the
assignment of teachers and other staff, and a general pattern of delay in
respect to the implementation of promised desegregation efforts.

The OCR and the school board entered into a formal settlement agreement. The
agreement required the board to implement what became known as the
“Seattle Plan.”

5. The Seattle Plan: Mandatory Busing, 1978 to 1988. The board began to
implement the Seattle Plan in 1978. 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 applied that
label to 26 schools, including 4 high schools — Cleveland (72.8% minority),
Franklin (76.6% minority), Garfield (78.4% minority), and Rainier Beach (58.9%
minority). The plan paired (or “triaded”) “imbalanced”
black schools with “imbalanced” white schools. It then placed some
grades (say, third and fourth grades) at one school building and other grades
(say, fifth and sixth grades) at the other school building. And it thereby
required,  [*197]  for example, all fourth grade students from the
previously black and previously white schools first to attend together what
would now be a “mixed” fourth grade at one of the school buildings
and then the next year to attend what would now be a “mixed” fifth
grade at the other school building.

At the same time, the plan provided that a previous “black” school
would remain about 50% black, while a previous “white” school would
remain about two-thirds white. It was consequently necessary to decide with
some care which students would attend the new “mixed” grade.
For this purpose, administrators cataloged the racial makeup of each
neighborhood housing block. The school district met its percentage goals by
assigning to the new “mixed” school an appropriate number of
“black” housing blocks and “white” housing blocks. At the
same time, transport from house to school involved extensive busing, with about
half of all students attending a school other than the one closest to their
home.

The Seattle Plan achieved the school integration that it sought. Just prior to
the plan’s implementation, for example, 4 of Seattle’s 11 high schools were
“imbalanced,” i.e., almost exclusively “black”
[*198]  or almost exclusively “white.” By 1979, only two
were out of “balance.” By 1980 only Cleveland remained out of
“balance” (as the board defined it) and that by a mere two students.

Nonetheless, the Seattle Plan, due to its busing, provoked serious opposition
within the State. See generally Washington v. Seattle School Dist.
No. 1
, 458 U.S. 457, 461-466, 102 S. Ct. 3187, 73 L. Ed. 2d 896 (1982).
Thus, Washington state voters enacted an initiative that amended state law to
require students to be assigned to the schools closest to their homes. Id.,
at 462, 102 S. Ct. 3187, 73 L. Ed. 2d 896. The Seattle School Board challenged
the constitutionality of the initiative. Id., at 464, 102 S. Ct. 3187,
73 L. Ed. 2d 896. This Court then held that the initiative — which would have
prevented the Seattle Plan from taking effect — violated the Fourteenth
Amendment. Id., at 470, 102 S. Ct. 3187, 73 L. Ed. 2d 896.

6. Student Choice, 1988 to 1998. By 1988, many white families had left
the school district, and many Asian families had moved in. The public school
population had fallen from about 100,000 to less than 50,000. The racial makeup
of the school population amounted to 43% white, 24% black, and 23% Asian or
Pacific Islander, with Hispanics and Native Americans [*199]  making
up the rest. 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.

The new plan permitted each student to choose the school he or she wished to
attend, subject to race-based constraints. In respect to high schools, for
example, a student was given a list of a subset of schools, carefully selected
by the board to balance racial distribution in the district by including
neighborhood schools and schools in racially different neighborhoods elsewhere
in the city. The student could then choose among those schools, indicating a
first choice, and other choices the student found acceptable. In making an
assignment to a particular high school, the district would give first
preference to a student with a sibling already at the school. It gave second
preference to a student whose race differed from a race that was
“over-represented” at the school (i.e., a race that accounted
for a higher percentage [*200]  of the school population than of the
total district population). It gave third preference to students residing in
the neighborhood. It gave fourth preference to students who received child care
in the neighborhood. In a typical year, say, 1995, about 20,000 potential high
school students participated. About 68% received their first choice. Another
16% received an “acceptable” choice. A further 16% were assigned to a
school they had not listed.

7. The Current Plan, 1999 to the Present. In 1996, the school board
adopted the present plan, which began in 1999. In doing so, it sought to
deemphasize the use of racial criteria and to increase the likelihood that a
student would receive an assignment at his first or second choice high school.
The district retained a racial tiebreaker for oversubscribed schools, which
takes effect only if the school’s minority or majority enrollment falls outside
of a 30% range centered on the minority/majority population ratio within the
district. At the same time, all students were free subsequently to transfer
from the school at which they were initially placed to a different school of
their choice without regard to race. Thus, at worst, a student
would [*201]  have to spend one year at a high school he did not pick
as a first or second choice.

The new plan worked roughly as expected for the two school years during which
it was in effect (1999-2000 and 2000-2001). In the 2000-2001 school year, for
example, with the racial tiebreaker, the entering ninth grade class at Franklin
High School had a 60% minority population; without the racial tiebreaker that
same class at Franklin would have had an almost 80% minority population. (We
consider only the ninth grade since only students entering that class were
subject to the tiebreaker, and because the plan was not in place long enough to
change the composition of an entire school.) In the year 2005-2006, by which
time the racial tiebreaker had not been used for several years, Franklin’s
overall minority enrollment had risen to 90%. During the period the tiebreaker
applied, it typically affected about 300 students per year. Between 80% and 90%
of all students received their first choice assignment; between 89% and 97%
received their first or second choice assignment.

Petitioner Parents Involved in Community Schools objected to Seattle’s most
recent plan under the State and Federal Constitutions.  [*202]  In
due course, the Washington Supreme Court, the Federal District Court, and the
Court of Appeals for the Ninth Circuit (sitting en banc) rejected the challenge
and found Seattle’s plan lawful.

B

Louisville

1. Before the Lawsuit, 1954 to 1972. In 1956, two years after Brown made
clear that Kentucky could no longer require racial segregation by law, the
Louisville Board of Education created a geography-based student assignment plan
designed to help achieve school integration. At the same time it adopted an
open transfer policy under which approximately 3,000 of Louisville’s 46,000
students applied for transfer. By 1972, however, the Louisville School District
remained highly segregated. Approximately half the district’s public school
enrollment was black; about half was white. Fourteen of the district’s nineteen
non-vocational middle and high schools were close to totally black or totally
white. Nineteen of the district’s forty-six elementary schools were between 80%
and 100% black. Twenty-one elementary schools were between roughly 90% and 100%
white.

2. Court-Imposed Guidelines and Busing, 1972 to 1991. In 1972, civil
rights groups and parents, claiming unconstitutional [*203]
segregation, sued the Louisville Board of Education in federal court. The
original litigation eventually became a lawsuit against the Jefferson County
School System, which in April 1975 absorbed Louisville’s schools and combined
them with those of the surrounding suburbs. (For ease of exposition, I shall
still use “Louisville” to refer to what is now the combined
districts.) After preliminary rulings and an eventual victory for the
plaintiffs in the Court of Appeals for the Sixth Circuit, the District Court in
July 1975 entered an order requiring desegregation.

The order’s requirements reflected a (newly enlarged) school district student
population of about 135,000, approximately 20% of whom were black. The order
required the school board to create and to maintain schools with student
populations that ranged, for elementary schools, between 12% and 40% black, and
for secondary schools (with one exception), between 12.5% and 35% black.

The District Court also adopted a complex desegregation plan designed to
achieve the order’s targets. The plan required redrawing school attendance
zones, closing 12 schools, and busing groups of students, selected by race and
the first letter of their [*204]  last names, to schools outside
their immediate neighborhoods. The plan’s initial busing requirements were
extensive, involving the busing of 23,000 students and a transportation fleet
that had to “operate from early in the morning until late in the
evening.” For typical students, the plan meant busing for several years (several
more years for typical black students than for typical white students). The
following notice, published in a Louisville newspaper in 1976, gives a sense of
how the district’s race-based busing plan operated in practice:

[SEE ILLUSTRATION IN ORIGINAL]

Louisville Courier Journal, June 18, 1976 (reproduced in J. Wilkinson, From Brown
to Bakke: The Supreme Court and School Integration 1954-1978, p. 176
(1979)).

The District Court monitored implementation of the plan. In 1978, it found that
the plan had brought all of Louisville’s schools within its “‘guidelines’
for racial composition” for “at least a substantial portion of the
[previous] three years.” It removed the case from its active docket while
stating that it expected the board “to continue to implement those
portions of the desegregation order which are by their nature of a continuing
effect.  [*205]  ”

By 1984, after several schools had fallen out of compliance with the order’s
racial percentages due to shifting demographics in the community, the school board
revised its desegregation plan. In doing so, the board created a new racial
“guideline,” namely a “floating range of 10% above and 10% below
the countywide average for the different grade levels.” The board
simultaneously redrew district boundaries so that middle school students could
attend the same school for three years and high school students for four years.
It added “magnet” programs at two high schools. And it adjusted its
alphabet-based system for grouping and busing students. The board estimated
that its new plan would lead to annual reassignment (with busing) of about
8,500 black students and about 8,000 white students.

3. Student Choice and Project Renaissance, 1991 to 1996. By 1991, the
board had concluded that assigning elementary school students to two or more
schools during their elementary school years had proved educationally unsound
and, if continued, would undermine Kentucky’s newly adopted Education Reform
Act. It consequently conducted a nearly year-long review of its plan. In doing
so, it consulted [*206]  widely with parents and other members of the
local community, using public presentations, public meetings, and various other
methods to obtain the public’s input. At the conclusion of this review, the
board adopted a new plan, called “Project Renaissance,” that
emphasized student choice.

Project Renaissance again revised the board’s racial guidelines. It provided
that each elementary school would have a black student population of between
15% and 50%; each middle and high school would have a black population and a
white population that fell within a range, the boundaries of which were set at
15% above and 15% below the general student population percentages in the
county at that grade level. The plan then drew new geographical school
assignment zones designed to satisfy these guidelines; the district could
reassign students if particular schools failed to meet the guidelines and was
required to do so if a school repeatedly missed these targets.

In respect to elementary schools, the plan first drew a neighborhood line
around each elementary school, and it then drew a second line around groups of
elementary schools (called “clusters”). It initially assigned each
student to his or her [*207]  neighborhood school, but it permitted
each student freely to transfer between elementary schools within each cluster provided
that
the transferring student (a) was black if transferring from a
predominantly black school to a predominantly white school, or (b) was white if
transferring from a predominantly white school to a predominantly black school.
Students could also apply to attend magnet elementary schools or programs.

The plan required each middle school student to be assigned to his or her
neighborhood school unless the student applied for, and was accepted by, a
magnet middle school. The plan provided for “open” high school
enrollment. Every 9th or 10th grader could apply to any high school in the
system, and the high school would accept applicants according to set criteria
— one of which consisted of the need to attain or remain in compliance with
the plan’s racial guidelines. Finally, the plan created two new magnet schools,
one each at the elementary and middle school levels.

4. The Current Plan: Project Renaissance Modified, 1996 to 2003. In 1995
and 1996, the Louisville School Board, with the help of a special
“Planning Team,” community meetings, and other
official [*208]  and unofficial study groups, monitored the effects
of Project Renaissance and considered proposals for improvement. Consequently,
in 1996, the board modified Project Renaissance, thereby creating the present
plan.

At the time, the district’s public school population was approximately 30%
black. The plan consequently redrew the racial “guidelines,” setting
the boundaries at 15% to 50% black for all schools. It again redrew
school assignment boundaries. And it expanded the transfer opportunities
available to elementary and middle school pupils. The plan forbade transfers,
however, if the transfer would lead to a school population outside the
guideline range, i.e., if it would create a school where fewer than 15%
or more than 50% of the students were black.

The plan also established “Parent Assistance Centers” to help parents
and students navigate the school selection and assignment process. 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 school’s respective elementary, middle or high
school level.” And the plan continued use of magnet [*209]
schools.

In 1999, several parents brought a lawsuit in federal court attacking the
plan’s use of racial guidelines at one of the district’s magnet schools. They
asked the court to dissolve the desegregation order and to hold the use of magnet
school racial guidelines unconstitutional. The board opposed dissolution,
arguing that “the old dual system” had left a “demographic
imbalance” that “prevented dissolution.” In 2000, after
reviewing the present plan, the District Court dissolved the 1975 order. It
wrote that there was “overwhelming evidence of the Board’s good faith
compliance with the desegregation Decree and its underlying purposes.” It
added that the Louisville School Board had “treated the ideal of an
integrated system as much more than a legal obligation — they consider it a
positive, desirable policy and an essential element of any well-rounded public
school education.”

The Court also found that the magnet programs available at the high school in
question were “not available at other high schools” in the school
district. It consequently held unconstitutional the use of race-based
“targets” to govern admission to magnet schools. And it
ordered the board not to [*210]  control access to those scarce
programs through the use of racial targets.

5. The Current Lawsuit, 2003 to the Present. Subsequent to the District
Court’s dissolution of the desegregation order (in 2000) the board simply
continued to implement its 1996 plan as modified to reflect the court’s magnet
school determination. In 2003, the petitioner now before us, Crystal Meredith,
brought this lawsuit challenging the plan’s unmodified portions, i.e.,
those portions that dealt with ordinary, not magnet, schools. Both the
District Court and the Court of Appeals for the Sixth Circuit rejected
Meredith’s challenge and held the unmodified aspects of the plan
constitutional.

C

The histories I have set forth describe the extensive and ongoing efforts of
two school districts to bring about greater racial integration of their public
schools. In both cases the efforts were in part remedial. Louisville began its
integration efforts in earnest when a federal court in 1975 entered a school
desegregation order. Seattle undertook its integration efforts in response to
the filing of a federal lawsuit and as a result of its settlement of a
segregation complaint filed with the federal OCR.  [*211]

The plans in both Louisville and Seattle grow out of these earlier remedial
efforts. Both districts faced problems that reflected initial periods of severe
racial segregation, followed by such remedial efforts as busing, followed by
evidence of resegregation, followed by a need to end busing and encourage the
return of, e.g., suburban students through increased student choice.
When formulating the plans under review, both districts drew upon their
considerable experience with earlier plans, having revised their policies
periodically in light of that experience. Both districts rethought their
methods over time and explored a wide range of other means, including
non-race-conscious policies. Both districts also considered elaborate studies
and consulted widely within their communities.

Both districts sought greater racial integration for educational and democratic,
as well as for remedial, reasons. Both sought to achieve these objectives while
preserving their commitment to other educational goals, e.g.,
districtwide commitment to high quality public schools, increased pupil
assignment to neighborhood schools, diminished use of busing, greater student
choice, reduced risk of [*212]  white flight, and so forth.
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 particular, they use race-conscious criteria only to mark
the outer bounds of broad population-related ranges.

The histories also make clear the futility of looking simply to whether earlier
school segregation was de jure or de facto in order to draw firm
lines separating the constitutionally permissible from the constitutionally
forbidden use of “race-conscious” criteria. JUSTICE THOMAS suggests
that it will be easy to identify de jure segregation because “in
most cases, there either will or will not have been a state constitutional
amendment, state statute, local ordinance, or local administrative policy
explicitly requiring separation of the races.” Ante, at 6, n. 4
(concurring opinion). But our precedent has recognized that de jure
discrimination can be present even in the absence of racially explicit laws.
See Yick Wo v. Hopkins, 118 U.S. 356, 373-374, 6 S. Ct. 1064, 30
L. Ed. 220 (1886).

No one [*213]  here disputes that Louisville’s segregation was de
jure
. But what about Seattle’s? Was it de facto? De jure? A mixture?
Opinions differed. Or is it that a prior federal court had not adjudicated the
matter? Does that make a difference? Is Seattle free on remand to say that its
schools were de jure segregated, just as in 1956 a memo for the School
Board admitted? The plurality does not seem confident as to the answer. Compare
ante, at 12 (opinion of the Court) (“The Seattle public schools have
never shown
that they were ever segregated by law” (emphasis added)),
with ante at 29-30 (plurality opinion) (assuming “the Seattle
school district was never segregated by law,” but seeming to concede that
a school district with de jure segregation need not be subject to a court
order to be allowed to engage in race-based remedial measures).

A court finding of de jure segregation cannot be the crucial variable.
After all, a number of school districts in the South that the Government or
private plaintiffs challenged as segregated by law voluntarily
desegregated their schools without a court order — just as Seattle did.
See, e.g., Coleman, Desegregation [*214]  of the Public
Schools in Kentucky — The Second Year After the Supreme Court’s Decision, 25
J. Negro Educ. 254, 256, 261 (1956) (40 of Kentucky’s 180 school districts
began desegregation without court orders); Branton, Little Rock Revisited:
Desegregation to Resegregation, 52 J. Negro Educ. 250, 251 (1983) (similar in
Arkansas); Bullock & Rodgers, Coercion to Compliance: Southern School
Districts and School Desegregation Guidelines, 38 J. Politics 987, 991 (1976)
(similar in Georgia); McDaniel v. Barresi, 402 U.S. 39, 40, n. 1,
91 S. Ct. 1287, 28 L. Ed. 2d 582 (1971) (Clarke County, Georgia). See also
Letter from Robert F. Kennedy, Attorney General, to John F. Kennedy, President
(Jan. 24, 1963) (hereinafter Kennedy Report), available at
http://www.gilderlehrman.org/search/collection_pdfs/05/63/0/05630.pdf (all
Internet materials as visited June 26, 2007, and available in Clerk of Court’s
case file) (reporting successful efforts by the Government to induce voluntary
desegregation).

Moreover, Louisville’s history makes clear that a community under a court order
to desegregate might submit a race-conscious remedial plan before the
court dissolved the order, but with every intention of
following [*215]  that plan even after dissolution. How could
such a plan be lawful the day before dissolution but then become unlawful the
very next day? On what legal ground can the majority rest its contrary view?
But see ante, at 12-13, 17, n. 12.

Are courts really to treat as merely de facto segregated those school
districts that avoided a federal order by voluntarily complying with Brown‘s
requirements? See id., at 12, 29-30. This Court has previously done just
the opposite, permitting a race-conscious remedy without any kind of court
decree. See McDaniel, supra, at 41, 91 S. Ct. 1287, 28 L. Ed. 2d
582. Because the Constitution emphatically does not forbid the use of
race-conscious measures by districts in the South that voluntarily desegregated
their schools, on what basis does the plurality claim that the law forbids
Seattle to do the same? But see ante, at 29.

The histories also indicate the complexity of the tasks and the practical difficulties
that local school boards face when they seek to achieve greater racial
integration. The boards work in communities where demographic patterns change,
where they must meet traditional learning goals, where they must attract and
retain effective [*216]  teachers, where they should (and will) take
account of parents’ views and maintain their commitment to public school
education, where they must adapt to court intervention, where they must
encourage voluntary student and parent action — where they will find that
their own good faith, their knowledge, and their understanding of local
circumstances are always necessary but often insufficient to solve the problems
at hand.

These facts and circumstances help explain why in this context, as to means,
the law often leaves legislatures, city councils, school boards, and voters
with a broad range of choice, thereby giving “different communities”
the opportunity to “try different solutions to common problems and
gravitate toward those that prove most successful or seem to them best to suit
their individual needs.” Comfort v. Lynn School Comm., 418
F.3d 1, 28 (CA1 2005) (Boudin, C. J., concurring) (citing United States
v. Lopez, 514 U.S. 549, 581, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995)
(KENNEDY, J., concurring)), cert. denied, 546 U.S. 1061, 126 S. Ct. 798, 163 L.
Ed. 2d 627 (2005).

With this factual background in mind, I turn to the legal question: Does the
United States Constitution prohibit these [*217]  school boards from
using race-conscious criteria in the limited ways at issue here?

II

The Legal Standard

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. 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.” 402 U.S., at 16, 91 S. Ct. 1267, 28 L. Ed. 2d 554.

The statement was not a technical holding in the case. But the Court set forth
in Swann a basic principle of constitutional law — a principle of law
that has found “wide acceptance [*218]  in the legal
culture.” Dickerson v. United States, 530 U.S. 428, 443, 120
S. Ct. 2326, 147 L. Ed. 2d 405 (2000) (internal quotation marks omitted); Mitchell
v. United States, 526 U.S. 314, 330, 119 S. Ct. 1307, 143 L. Ed. 2d 424
(1999); id., at 331, 332, 119 S. Ct. 1307, 143 L. Ed. 2d 424 (SCALIA,
J., dissenting) (citing “‘wide acceptance in the legal culture'” as
“adequate reason not to overrule” prior cases).

Thus, in North Carolina Bd. of Ed. v. Swann, 402 U.S. 43, 45, 91
S. Ct. 1284, 28 L. Ed. 2d 586 (1971), this Court, citing Swann, restated
the point. “School 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., 439 U.S. 1380, 1383, 99 S. Ct. 40, 58 L. Ed.
2d 88 (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 [*219]  this
case, I have very little doubt that it was permitted by that
Constitution to take such action.” (Emphasis in original.)

These statements nowhere suggest that this freedom is limited to school
districts where court-ordered desegregation measures are also in effect.
Indeed, in McDaniel, 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. See Barresi v. Browne,
226 Ga. 456, 456-459, 175 S. E. 2d 649, 650-651 (1970). This Court upheld the
plan, see McDaniel, 402 U.S., at 41, 91 S. Ct. 1287, 28 L. Ed. 2d 582,
rejecting the parents’ argument that “a person may not be included
or excluded solely because he is a Negro or because he is white.”
Brief for Respondents in McDaniel, O. T. 1970, No. 420, p. 25.

Federal authorities had claimed — as the NAACP [*220]  and the OCR
did in Seattle — that Clarke County schools were segregated in law, not just
in fact. The plurality’s claim that Seattle was “never segregated by
law” is simply not accurate. Compare ante, at 29, with supra,
at 6-9. The plurality could validly claim that no court ever found that
Seattle schools were segregated in law. But that is also true of the Clarke
County schools in McDaniel. Unless we believe that the Constitution
enforces one legal standard for the South and another for the North, this Court
should grant Seattle the permission it granted Clarke County, Georgia. See McDaniel,
402 U.S., at 41, 91 S. Ct. 1287, 28 L. Ed. 2d 582 (“Steps will almost
invariably require that students be assigned ‘differently because of their
race.’ . . . Any other approach would freeze the status quo that is the very
target of all desegregation processes.”).

This Court has also held that school districts may be required by federal
statute to undertake race-conscious desegregation efforts even when there is no
likelihood that de jure segregation can be shown. In Board of Ed. of
City School Dist. of New York
v. Harris, 444 U.S. 130, 148-149, 100
S. Ct. 363, 62 L. Ed. 2d 275 (1979), the Court concluded [*221]  that
a federal statute required school districts receiving certain federal funds to
remedy faculty segregation, even though in this Court’s view the racial
disparities in the affected schools were purely de facto and would not
have been actionable under the Equal Protection Clause. Not even the dissenters
thought the race-conscious remedial program posed a constitutional
problem. See id., at 152, 100 S. Ct. 363, 62 L. Ed. 2d 275 (opinion of
Stewart, J.). See also, e.g., Crawford v. Board of Ed. of Los
Angeles
, 458 U.S. 527, 535-536, 102 S. Ct. 3211, 73 L. Ed. 2d 948 (1982)
(“State courts of California continue to have an obligation under state
law to order segregated school districts to use voluntary desegregation
techniques, whether or not there has been a finding of intentional segregation.
. . . School districts themselves retain a state-law obligation to take
reasonably feasible steps to desegregate, and they remain free to adopt
reassignment and busing plans to effectuate desegregation
” (emphasis
added)); School Comm. of Boston v. Board of Education, 389 U.S.
572, 88 S. Ct. 692, 19 L. Ed. 2d 778 (1968) (per curiam) (dismissing for
want of a federal question a challenge to a voluntary statewide
integration [*222]  plan using express racial criteria).

Lower state and federal courts had considered the matter settled and
uncontroversial even before this Court decided Swann. Indeed, in 1968,
the Illinois Supreme Court rejected an equal protection challenge to a
race-conscious state law seeking to undo de facto segregation:

“To support [their] claim, the defendants heavily rely on three Federal
cases, each of which held, no State law being involved, that a local school
board does not have an affirmative constitutional duty to act to alleviate
racial imbalance in the schools that it did not cause. However, the question as
to whether the constitution requires a local school board, or a State, to act
to undo de facto school segregation is simply not here concerned. The
issue here is whether the constitution permits, rather than prohibits, voluntary
State action aimed toward reducing and eventually eliminating de facto
school segregation.

“State laws or administrative policies, directed toward the reduction and
eventual elimination of de facto segregation of children in the schools
and racial imbalance, have been approved by every high State court which has
considered the [*223]  issue. Similarly, the Federal courts which
have considered the issue . . . have recognized that voluntary programs of
local school authorities designed to alleviate de facto segregation and
racial imbalance in the schools are not constitutionally forbidden.” Tometz
v. Board of Ed., Waukegan School Dist. No. 6, 39 Ill. 2d 593, 597-598,
237 N.E.2d 498, 501 (1968) (citations omitted) (citing decisions from the high
courts of Pennsylvania, Massachusetts, New Jersey, California, New York, and
Connecticut, and from the Courts of Appeals for the First, Second, Fourth, and
Sixth Circuits).

See also, e.g., Offerman v. Nitkowski, 378 F.2d 22, 24
(CA2 1967); Deal v. Cincinnati Bd. of Ed., 369 F.2d 55, 61 (CA6
1966), cert. denied, 389 U.S. 847, 88 S. Ct. 39, 19 L. Ed. 2d 114 (1967); Springfield
School Comm.
v. Barksdale, 348 F.2d 261, 266 (CA1 1965); Pennsylvania
Human Relations Comm’n
v. Chester School Dist., 427 Pa. 157, 164,
233 A.2d 290, 294 (1967); Booker v. Board of Ed. of Plainfield, Union
Cty.
, 45 N. J. 161, 170, 212 A.2d 1, 5 (1965); Jackson v. Pasadena
City School Dist.
, 59 Cal.2d 876, 881-882, 31 Cal. Rptr. 606, 382 P.2d 878,
881-882 (1963) [*224]  (in bank).

I quote the Illinois Supreme Court at length to illustrate the prevailing legal
assumption at the time Swann was decided. In this respect, Swann was
not a sharp or unexpected departure from prior rulings; it reflected a
consensus that had already emerged among state and lower federal courts.

If there were doubts before Swann was decided, they did not survive this
Court’s decision. Numerous state and federal courts explicitly relied upon Swann‘s
guidance for decades to follow. For instance, a Texas appeals court in 1986
rejected a Fourteenth Amendment challenge to a voluntary integration plan by
explaining:

“The absence of a
court order to desegregate does not mean that a school board cannot exceed
minimum requirements in order to promote school integration. School authorities
are traditionally given broad discretionary powers to formulate and implement
educational policy and may properly decide to ensure to their students the
value of an integrated school experience.” Citizens for Better Ed.
v. Goose Creek Consol. Independent School Dist., 719 S.W.2d 350, 352-353
(Ct. App. Tex. 1986) (citing Swann and North Carolina Bd.
[*225]  of Ed.), appeal dism’d for want of a substantial
federal question, 484 U.S. 804, 108 S. Ct. 49, 98 L. Ed. 2d 14 (1987).

Similarly, in Zaslawsky v. Bd. of Ed. of Los Angeles City Unified
School Dist.
, 610 F.2d 661, 662-664 (1979), the Ninth Circuit rejected a
federal constitutional challenge to a school district’s use of mandatory
faculty transfers to ensure that each school’s faculty makeup would fall within
10% of the districtwide racial composition. Like the Texas court, the Ninth
Circuit relied upon Swann and North Carolina Bd. of Ed. to reject
the argument that “a race-conscious plan is permissible only when there
has been a judicial finding of de jure segregation.” 610 F.2d at
663-664. See also, e.g., Darville v. Dade County School Bd.,
497 F.2d 1002, 1004-1006 (CA5 1974); State ex rel. Citizens Against
Mandatory Bussing
v. Brooks, 80 Wn. 2d 121, 128-129, 492 P.2d 536,
541-542 (1972) (en banc), overruled on other grounds, Cole v. Webster,
103 Wn. 2d 280, 692 P.2d 799 (1984) (en banc); School Comm. of Springfield
v. Board of Ed., 362 Mass. 417, 428-429 287 N.E.2d 438, 447-448
(1972). [*226]  These decisions illustrate well how lower courts understood
and followed Swann‘s enunciation of the relevant legal principle.

Courts are not alone in accepting as constitutionally valid the legal principle
that Swann enunciated — i.e., that the government may
voluntarily adopt race-conscious measures to improve conditions of race even
when it is not under a constitutional obligation to do so. That principle has
been accepted by every branch of government and is rooted in the history of the
Equal Protection Clause itself. Thus, Congress has enacted numerous
race-conscious statutes that illustrate that principle or rely upon its
validity. See, e.g., 20 U.S.C. § 6311(b)(2)(C)(v) (No Child Left Behind
Act); § 1067 et seq. (authorizing aid to minority institutions). In
fact, without being exhaustive, I have counted 51 federal statutes that use
racial classifications. I have counted well over 100 state statutes that
similarly employ racial classifications. Presidential administrations for the
past half-century have used and supported various race-conscious measures. See,
e.g., Exec. Order No. 10925, 26 Fed. Reg. 1977 (1961) [*227]
(President Kennedy); Exec. Order No. 11246, 30 Fed. Reg. 12319 (1965)
(President Johnson); Sugrue, Breaking Through: The Troubled Origins of
Affirmative Action in the Workplace, in Colorlines: Affirmative Action,
Immigration, and Civil Rights Options for America 31 (Skretny ed. 2001)
(describing President Nixon’s lobbying for affirmative action plans, e.g.,
the Philadelphia Plan); White, Affirmative Action’s Alamo: Gerald Ford Returns
to Fight Once More for Michigan, Time, Aug. 23, 1999, p. 48 (reporting on
President Ford’s support for affirmative action); Schuck, Affirmative Action:
Past, Present, and Future, 20 Yale L. & Pol’y Rev. 1, 50 (2002) (describing
President Carter’s support for affirmation action). And during the same time,
hundreds of local school districts have adopted student assignment plans that
use race-conscious criteria. See Welch 83-91.

That Swann‘s legal statement should find such broad acceptance is not
surprising. For Swann is predicated upon a well-established legal view
of the Fourteenth Amendment. That view understands the basic objective of those
who wrote the Equal Protection Clause as forbidding practices that
lead [*228]  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, 83 U.S. 36, 16 Wall. 36, 71, 21 L.
Ed. 394 (1872) (“No 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, 100 U.S.
303, 306, 25 L. Ed. 664 (1879) (“[The Fourteenth 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. See generally R. Sears, A Utopian
Experiment in Kentucky: Integration and Social Equality at Berea, 1866-1904
(1996) (describing federal funding, through the Freedman’s Bureau, of
race-conscious [*229]  school integration programs). See also R.
Fischer, The Segregation Struggle in Louisiana 1862-77, p. 51 (1974)
(describing the use of race-conscious remedies); Harlan, Desegregation in New
Orleans Public Schools During Reconstruction, 67 Am. Hist. Rev. 663, 664 (1962)
(same); W. Vaughn, Schools for All: The Blacks and Public Education in the
South, 1865-1877, pp. 111-116 (1974) (same). Although the Constitution almost
always forbids the former, it is significantly more lenient in respect to the
latter. See Gratz v. Bollinger, 539 U.S. 244, 301, 123 S. Ct.
2411, 156 L. Ed. 2d 257 (2003) (GINSBURG, J., dissenting); Adarand
Constructors, Inc.
v. PeNa, 515 U.S. 200, 243, 115 S. Ct. 2097, 132
L. Ed. 2d 158 (1995) (STEVENS, J., dissenting).

Sometimes Members of this Court have disagreed about the degree of leniency
that the Clause affords to programs designed to include. See Wygant v. Jackson
Board of Education
, 476 U.S. 267, 274, 106 S. Ct. 1842, 90 L. Ed. 2d 260
(1986); Fullilove v. Klutznick, 448 U.S. 448, 507, 100 S. Ct.
2758, 65 L. Ed. 2d 902 (1980). But I can find no case in which this Court has
followed JUSTICE THOMAS'”colorblind” approach. And I have found no
case that otherwise repudiated this constitutional asymmetry between that
which [*230]  seeks to exclude and that which seeks to include
members of minority races.

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. As
McDaniel and Harris show, that is historically untrue. See supra,
at 22-24. Many school districts in the South adopted segregation remedies (to
which Swann clearly applies) without any such federal order, see supra,
at 19-20. See also Kennedy Report. Seattle’s circumstances are not meaningfully
different from those in, say, McDaniel, where this Court approved
race-conscious remedies. Louisville’s plan was created and initially adopted
when a compulsory district court order was in place. And, in any event, the
histories of Seattle and Louisville make clear that this distinction — between
court-ordered and voluntary desegregation — seeks a line that sensibly cannot
be drawn.

Second, the plurality downplays the importance of Swann and related
cases by frequently describing their relevant statements as “dicta.”
These criticisms, however, miss [*231]  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 basic problem with the plurality’s
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 today’s
decision. Law is not an exercise in mathematical logic. And statements of a
legal rule set forth in a judicial opinion do not always divide neatly into
“holdings” and “dicta.” (Consider the legal “status”
of Justice Powell’s separate opinion in Regents of Univ. of Cal. v. Bakke,
438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978).) 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 [*232]  “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.
See ante, at 11-12, 31-32, n. 16, 34-35 (citing Adarand,
supra,
at 227, 115 S. Ct. 2097, 132 L. Ed. 2d 158; Johnson v. California,
543 U.S. 499, 505, 125 S. Ct. 1141, 160 L. Ed. 2d 949 (2005); Grutter v.
Bollinger, 539 U.S. 306, 326, 123 S. Ct. 2325, 156 L. Ed. 2d 304
(2003)). 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.'” Ante, at 31, n. 16 (quoting Adarand,
515 U.S., at 227, 115 S. Ct. 2097, 132 L. Ed. 2d 158). This Court in Adarand
added that “such classifications are constitutional only if they are
narrowly tailored measures that further compelling governmental
interests.” Ibid. And the Court repeated this same
statement [*233]  in Grutter. See 539 U.S., at 326, 123 S. Ct.
2325, 156 L. Ed. 2d 304.

Several of these cases were significantly more restrictive than Swann in
respect to the degree of leniency the Fourteenth Amendment grants to programs
designed to include people of all races. See, e.g., Adarand,
supra; Gratz, supra; Grutter, supra. 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.

Indeed, in its more recent opinions, the Court recognized that the
“fundamental purpose” of strict scrutiny review is to “take
relevant differences” between “fundamentally different situations . .
. into account.” Adarand, supra, at 228, 115 S. Ct. 2097,
132 L. Ed. 2d 158 (internal quotation marks omitted). The Court made clear that
“strict scrutiny [*234]  does not treat dissimilar race-based
decisions as though they were equally objectionable.” Ibid. It
added that the fact that a law “treats [a person] unequally because of his
or her race . . . says nothing about the ultimate validity of any particular
law.” Id., at 229-230, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (internal
quotation marks omitted). And the Court, using the very phrase that Justice
Marshall had used to describe strict scrutiny’s application to any exclusionary
use of racial criteria, sought to “dispel the notion that strict
scrutiny” is as likely to condemn inclusive uses of
“race-conscious” criteria as it is to invalidate exclusionary
uses. That is, it is not in all circumstances “‘strict in theory,
but fatal in fact.'” Id., at 237, 115 S. Ct. 2097, 132 L. Ed. 2d
158 (quoting Fullilove v. Klutznick, 448 U.S., at 519, 100 S. Ct.
2758, 65 L. Ed. 2d 902 (Marshall, J., concurring in judgment)).

The Court in Grutter elaborated:

“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 [*235]  Clause. See Gomillion v. Lightfoot,
364 U.S. 339, 343-344, 81 S. Ct. 125, 5 L. Ed. 2d 110 (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’). . . . 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.” 539 U.S., at 326-327, 123 S. Ct. 2325, 156 L. Ed. 2d 304.

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 [*236]  harmfully exclude;
they apply the test in a manner that is not fatal in fact to racial
classifications that seek to include.

The plurality cannot avoid this simple fact. See ante, at 34-36. 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, “context matters when reviewing
race-based governmental action under the Equal Protection Clause.” 539
U.S., at 327, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (citing Gomillion v. Lightfoot,
364 U.S. 339, 343-344, 81 S. Ct. 125, 5 L. Ed. 2d 110 (1960)). 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,  [*237]  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.

Here, the context is one in which school districts seek to advance or to
maintain racial integration in primary and secondary schools. It is a context,
as Swann makes clear, where history has required special administrative
remedies. And it is a context in which the school boards’ plans simply set
race-conscious limits at the outer boundaries of a broad range.

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. It is not one in which race-conscious
limits stigmatize or exclude; the limits at issue do not pit the races against
each other or otherwise significantly exacerbate racial tensions. They do not
impose [*238]  burdens unfairly upon members of one race alone but
instead seek benefits for members of all races alike. The context here is one
of racial limits that seek, not to keep the races apart, but to bring them
together.

The importance of these differences is clear once one compares the present
circumstances with other cases where one or more of these negative features are
present. See, e.g., Strauder v. West Virginia, 100 U.S.
303, 25 L. Ed. 664 (1880); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.
Ct. 1064, 30 L. Ed. 220 (1886); Brown, 347 U.S. 483, 74 S. Ct. 686, 98
L. Ed. 873; Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L.
Ed. 2d 1010 (1967); Regents of Univ. of Cal. v. Bakke, 438 U.S.
265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978); Batson v. Kentucky,
476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986); Richmond v. J.
A. Croson Co.
, 488 U.S. 469, 109 S. Ct. 706, 102 L. Ed. 2d 854 (1989); Shaw
v. Reno, 509 U.S. 630, 113 S. Ct. 2816, 125 L. Ed. 2d 511 (1993); Adarand
Constructors, Inc.
v. PeNa, 515 U.S. 200, 115 S. Ct. 2097, 132 L.
Ed. 2d 158 (1995); Grutter, supra; Gratz v. Bollinger, 539
U.S. 244, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (2003); Johnson v. California,
543 U.S. 499, 125 S. Ct. 1141, 160 L. Ed. 2d 949 (2005).

If one examines the context more specifically, one finds that the districts’
[*239]  plans reflect efforts to overcome a history of segregation,
embody the results of broad experience and community consultation, seek to
expand student choice while reducing the need for mandatory busing, and use
race-conscious criteria in highly limited ways that diminish the use of race
compared to preceding integration efforts. Compare Wessmann v. Gittens,
160 F.3d 790, 809-810 (CA1 1998) (Boudin, J., concurring), with Comfort,
418 F.3d at 28-29 (Boudin, C. J., concurring). They do not seek to award a
scarce commodity on the basis of merit, for they are not magnet schools;
rather, by design and in practice, they offer substantially equivalent academic
programs and electives. Although some parents or children prefer some schools
over others, school popularity has varied significantly over the years. In
2000, for example, Roosevelt was the most popular first choice high school in
Seattle; in 2001, Ballard was the most popular; in 2000, West Seattle was one
of the least popular; by 2003, it was one of the more popular. See Research,
Evaluation and Assessment, Student Information Services Office, District
Summaries 1999-2005, available at http: //www.  [*240]
seattleschools.org /area /siso /disprof /2005 /DP05 all.pdf. 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.

These and related considerations convinced one Ninth Circuit judge in the
Seattle case to apply a standard of constitutionality review that is less than
“strict,” and to conclude that this Court’s precedents do not require
the contrary. See 426 F.3d 1162, 1193-1194 (2005) (Kozinski, J., concurring)
(“That a student is denied the school of his choice may be disappointing,
but it carries no racial stigma and says nothing at all about that individual’s
aptitude or ability”). That judge is not alone. Cf. Gratz, supra,
at 301, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (GINSBURG, J., dissenting); Adarand,
supra, at 243, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (STEVENS, J.,
dissenting); Carter, When Victims Happen To Be Black, 97 Yale L. J. 420,
433-434 (1988).

The view that a more lenient standard than “strict scrutiny” should
apply in the present context would not imply abandonment of judicial efforts
carefully to determine the need for race-conscious criteria [*241]
and the criteria’s tailoring in light of the need. And the present context
requires a court to examine carefully the race-conscious program at issue. In
doing so, a reviewing judge must be fully aware of the potential dangers and
pitfalls that JUSTICE THOMAS and JUSTICE KENNEDY mention. See ante, at
11-12 (THOMAS, J., concurring); ante, at 3, 17 (opinion of KENNEDY, J.).

But unlike the plurality, such a judge would also be aware that a legislature
or school administrators, ultimately accountable to the electorate, could nonetheless
properly conclude that a racial classification sometimes serves a purpose
important enough to overcome the risks they mention, for example, helping to
end racial isolation or to achieve a diverse student body in public schools.
Cf. ante, at 17-18 (opinion of KENNEDY, J.). Where that is so, the judge
would carefully examine the program’s details to determine whether the use of
race-conscious criteria is proportionate to the important ends it serves.

In my view, this contextual approach to scrutiny is altogether fitting. I
believe that the law requires application here of a standard of review that is
not “strict” in the traditional sense [*242]  of that word,
although it does require the careful review I have just described. See Gratz,
supra, at 301, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (GINSBURG, J., joined
by SOUTER, J., dissenting); Adarand, supra, at 242-249, 115 S.
Ct. 2097, 132 L. Ed. 2d 158 (STEVENS, J., joined by GINSBURG, J., dissenting);
426 F.3d at 1193-1194 (Kozinski, J., concurring). Apparently JUSTICE KENNEDY
also agrees that strict scrutiny would not apply in respect to certain
“race-conscious” school board policies. 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”).

Nonetheless, in light of Grutter and other precedents, see, e.g.,
Bakke, 438 U.S., at 290, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (opinion of
Powell, J.), I shall adopt the first alternative. 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 [*243]  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

Applying the Legal Standard

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.

Regardless of its name, however, the interest [*244]  at stake possesses
three essential elements. First, there is a historical and remedial element: an
interest in setting right the consequences of prior conditions of segregation.
This refers back to a time when public schools were highly segregated, often as
a result of legal or administrative policies that facilitated racial
segregation in public schools. It is an interest in continuing to combat the
remnants of segregation caused in whole or in part by these school-related
policies, which have often affected not only schools, but also housing
patterns, employment practices, economic conditions, and social attitudes. It
is an interest in maintaining hard-won gains. And it has its roots in
preventing what gradually may become the de facto resegregation of
America’s public schools. See Part I, supra, at 4; Appendix A, infra.
See also ante, at 17 (opinion of KENNEDY, J.) (“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”).

Second, there is an educational element: an interest in overcoming the adverse
educational effects produced by and associated [*245]  with highly
segregated schools. Cf. Grutter, 539 U.S., at 345, 123 S. Ct.
2325, 156 L. Ed. 2d 304 (GINSBURG, J., concurring). Studies suggest that
children taken from those schools and placed in integrated settings often show
positive academic gains. See, e.g., Powell, Living and Learning: Linking
Housing and Education, in Pursuit of a Dream Deferred: Linking Housing and
Education Policy 15, 35 (J. Powell, G. Kearney, & V. Kay eds. 2001)
(hereinafter Powell); Hallinan, Diversity Effects on Student Outcomes: Social
Science Evidence, 59 Ohio St. L. J. 733, 741-742 (1998) (hereinafter Hallinan).

Other studies reach different conclusions. See, e.g., D. Armor, Forced
Justice (1995). See also ante, at 15-17 (THOMAS, J., concurring). But
the evidence supporting an educational interest in racially integrated schools
is well established and strong enough to permit a democratically elected school
board reasonably to determine that this interest is a compelling one.

Research suggests, for example, that black children from segregated educational
environments significantly increase their achievement levels once they are placed
in a more integrated setting. Indeed in Louisville itself [*246]  the
achievement gap between black and white elementary school students grew
substantially smaller (by seven percentage points) after the integration plan
was implemented in 1975. See Powell 35. Conversely, to take another example,
evidence from a district in Norfolk, Virginia, shows that resegregated schools
led to a decline in the achievement test scores of children of all races. Ibid.

One commentator, reviewing dozens of studies of the educational benefits of
desegregated schooling, found that the studies have provided “remarkably
consistent” results, showing that: (1) black students’ educational
achievement is improved in integrated schools as compared to racially isolated
schools, (2) black students’ educational achievement is improved in integrated
classes, and (3) the earlier that black students are removed from racial
isolation, the better their educational outcomes. See Hallinan 741-742.
Multiple studies also indicate that black alumni of integrated schools are more
likely to move into occupations traditionally closed to African-Americans, and
to earn more money in those fields. See, e.g., Schofield, Review of
Research on School Desegregation’s Impact on Elementary [*247]  and
Secondary School Students, in Handbook of Research on Multicultural Education
597, 606-607 (J. Banks & C. Banks eds. 1995). Cf. W. Bowen & D. Bok,
The Shape of the River 118 (1998) (hereinafter Bowen & Bok).

Third, there is a democratic element: an interest in producing an educational
environment that reflects the “pluralistic society” in which our
children will live. Swann, 402 U.S., at 16, 91 S. Ct. 1267, 28 L. Ed. 2d
554. It is an interest in helping our children learn to work and play together
with children of different racial backgrounds. It is an interest in teaching
children to engage in the kind of cooperation among Americans of all races that
is necessary to make a land of three hundred million people one Nation.

Again, data support this insight. See, e.g., Hallinan 745; Quillian
& Campbell, Beyond Black and White: The Present and Future of Multiracial
Friendship Segregation, 68 Am. Sociological Rev. 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. 394, 401-403 (1994) (hereinafter Dawkins
& Braddock); Wells & Crain, Perpetuation [*248]  Theory and
the Long-Term Effects of School Desegregation, 64 Rev. Educational Research
531, 550 (1994) (hereinafter Wells & Crain).

There are again studies that offer contrary conclusions. See, e.g.,
Schofield, School Desegregation and Intergroup Relations, in 17 Review of
Research in Education 356 (G. Grant ed. 1991). See also ante, at 22-23
(THOMAS, J., concurring). Again, however, the evidence supporting a democratic
interest in racially integrated schools is firmly established and sufficiently
strong to permit a school board to determine, as this Court has itself often
found, that this interest is compelling.

For example, one study documented that “black and white students in
desegregated schools are less racially prejudiced than those in segregated
schools,” and that “interracial contact in desegregated schools leads
to an increase in interracial sociability and friendship.” Hallinan 745.
See also Quillian & Campbell 541. Cf. Bowen & Bok 155. 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. Dawkins &
Braddock [*249]  401-403; Wells & Crain 550. Further research has
shown that the desegregation of schools can help bring adult communities
together by reducing segregated housing. Cities that have implemented
successful school desegregation plans have witnessed increased interracial
contact and neighborhoods that tend to become less racially segregated. Dawkins
& Braddock 403. These effects not only reinforce the prior gains of
integrated primary and secondary education; they also foresee a time when there
is less need to use race-conscious criteria.

Moreover, this Court from Swann to Grutter has treated these
civic effects as an important virtue of racially diverse education. See, e.g.,
Swann, supra, at 16, 91 S. Ct. 1267, 28 L. Ed. 2d 554; Seattle
School Dist. No. 1
, 458 U.S., at 472-473, 102 S. Ct. 3187, 73 L. Ed. 2d
896. In Grutter, in the context of law school admissions, we found that
these types of interests were, constitutionally speaking,
“compelling.” See 539 U.S., at 330, 123 S. Ct. 2325, 156 L. Ed. 2d
304 (recognizing that Michigan Law School’s race-conscious admissions policy
“promotes cross-racial understanding, helps to break down racial stereotypes,
and enables [students] to better understand persons of different races,
[*250]  ” and pointing out that “the skills needed in
today’s increasingly global marketplace can only be developed through exposure
to widely diverse people, cultures, ideas, and viewpoints” (internal
quotation marks omitted; alteration in original)).

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. As Justice Marshall said, “unless our children begin to learn
together, there is little hope that our people will ever learn to live
together.” Milliken v. Bradley, 418 U.S. 717, 783, 94 S. Ct.
3112, 41 L. Ed. 2d 1069 (1974) (dissenting opinion).

And it was Brown, after all, focusing upon primary and secondary
schools, not Sweatt v. Painter, 339 U.S. 629, 70 S. Ct. 848, 94
L. Ed. 1114 (1950), focusing on law schools, or McLaurin v. Oklahoma
State Regents for Higher Ed.
, 339 U.S. 637, 70 S. Ct. 851, 94 L. Ed. 1149
(1950), focusing on graduate schools, that affected so deeply not only Americans
but the world. R. Kluger,  [*251]  Simple Justice: The History of Brown
v. Board of Education and Black America’s Struggle for Equality, p. x
(1975) (arguing that perhaps no other Supreme Court case has “affected
more directly the minds, hearts, and daily lives of so many Americans”);
Patterson, Brown v. Board of Education xxvii (2001) (identifying Brown
as “the most eagerly awaited and dramatic judicial decision of modern
times”). See also Parents Involved VII, 426 F.3d at 1194 (Kozinski,
J., concurring); Strauss, Discriminatory Intent and the Taming of Brown,
56 U. Chi. L. Rev. 935, 937 (1989) (calling Brown “the Supreme
Court’s greatest anti-discrimination decision”); Brief for United States
as Amicus Curiae in Brown, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed.
873; Dudziak, Brown as a Cold War Case, 91 J. Am. Hist. 32 (2004); A
Great Decision, Hindustan Times (New Dehli, May 20, 1954), p. 5; USA Takes
Positive Step, West African Pilot (Lagos, May 22, 1954), p. 2 (stating that Brown
is an acknowledgment that the “United States should set an example for all
other nations by taking the lead in removing from its national life all signs
and traces of racial intolerance,  [*252]  arrogance or
discrimination”). Hence, I am not surprised that JUSTICE KENNEDY finds
that, “a district may consider it a compelling interest to achieve a
diverse student population,” including a racially diverse
population. Ante, at 17-18.

The compelling interest at issue here, then, includes an effort to eradicate
the remnants, not of general “societal discrimination,” ante,
at 23 (plurality opinion), but of primary and secondary school segregation, see
supra, at 7, 14; it includes an effort to create school environments
that provide better educational opportunities for all children; it includes an
effort to help create citizens better prepared to know, to understand, and to
work with people of all races and backgrounds, thereby furthering the kind of
democratic government our Constitution foresees. If an educational interest
that combines these three elements is not “compelling,” what is?

The majority acknowledges that in prior cases this Court has recognized at
least two interests as compelling: an interest in “remedying the effects
of past intentional discrimination,” and an interest in “diversity in
higher education.” Ante, at 12, 13. But the plurality
does [*253]  not convincingly explain why those interests do not
constitute a “compelling interest” here. How do the remedial
interests here differ in kind from those at issue in the voluntary
desegregation efforts that Attorney General Kennedy many years ago described in
his letter to the President? Supra, at 19-20. How do the educational and
civic interests differ in kind from those that underlie and justify the racial
“diversity” that the law school sought in Grutter, where this
Court found a compelling interest?

The plurality tries to draw a distinction by reference to the well-established
conceptual difference between de jure segregation (“segregation by
state action”) and de facto segregation (“racial imbalance
caused by other factors”). Ante, at 28. But that distinction
concerns what the Constitution requires school boards to do, not what it
permits them to do. Compare, e.g., Green, 391 U.S., at
437-438, 88 S. Ct. 1689, 20 L. Ed. 2d 716 (“School boards . . . operating
state-compelled dual systems” have an “affirmative duty to take
whatever steps might be necessary to convert to a unitary system in which
racial discrimination would be eliminated root and branch”), with,
[*254]  e.g., Milliken, 418 U.S., at 745, 94 S. Ct.
3112, 41 L. Ed. 2d 1069 (the Constitution does not impose a duty to desegregate
upon districts that have not been “shown to have committed any
constitutional violation”).

The opinions cited by the plurality to justify its reliance upon the de
jure/de facto
distinction only address what remedial measures a school
district may be constitutionally required to undertake. See, e.g.,
Freeman v. Pitts, 503 U.S. 467, 495, 112 S. Ct. 1430, 118 L. Ed.
2d 108 (1992). As to what is permitted, nothing in our equal protection
law suggests that a State may right only those wrongs that it committed. No
case of this Court has ever relied upon the de jure/de facto distinction
in order to limit what a school district is voluntarily allowed to do. That is
what is at issue here. And Swann, McDaniel, Crawford, North
Carolina Bd. of Ed.
, Harris, and Bustop made one thing clear:
significant as the difference between de jure and de facto
segregation may be to the question of what a school district must do,
that distinction is not germane to the question of what a school district may
do.

Nor does any precedent indicate, as the plurality [*255]  suggests
with respect to Louisville, ante, at 29, that remedial interests vanish
the day after a federal court declares that a district is “unitary.”
Of course, Louisville adopted those portions of the plan at issue here before
a court declared Louisville “unitary.” Moreover, in Freeman,
this Court pointed out that in “one sense of the term, vestiges of past
segregation by state decree do remain in our society and in our schools. Past
wrongs to the black race, wrongs committed by the State and in its name, are a
stubborn fact of history. And stubborn facts of history linger and
persist.” 503 U.S., at 495, 112 S. Ct. 1430, 118 L. Ed. 2d 108. See also ante,
at 15 (opinion of KENNEDY, J.). I do not understand why this Court’s cases,
which rest the significance of a “unitary” finding in part upon the
wisdom and desirability of returning schools to local control, should deprive
those local officials of legal permission to use means they once found
necessary to combat persisting injustices.

For his part, JUSTICE THOMAS faults my citation of various studies supporting
the view that school districts can find compelling educational and civic
interests in integrating their public schools. See [*256]  ante,
at 15-17, 23 (concurring opinion). He is entitled of course to his own opinion
as to which studies he finds convincing — although it bears mention that even
the author of some of JUSTICE THOMAS’ preferred studies has found some
evidence linking integrated learning environments to increased academic
achievement. Cf. ante, at 15-17 (opinion of THOMAS, J.) (citing Armor
& Rossell, Desegregation and Resegregation in the Public Schools, in Beyond
the Color Line 239 (A. Thernstrom & S. Thernstrom eds. 2002); Brief for
Armor et al. as Amici Curiae, with Rosen, Perhaps Not All
Affirmative Action is Created Equal, N. Y. Times, June 11, 2006 (quoting David
Armor as commenting “‘we did find the [racial] achievement gap changing significantly‘”
and acknowledging that he “‘did find a modest association for math but not
reading in terms of racial composition and achievement, but there’s a big state
variation'” (emphasis added)). If we are to insist upon unanimity in the
social science literature before finding a compelling interest, we might never
find one. I believe only that the Constitution allows democratically elected
school boards to make up their own minds [*257]  as to how best to
include people of all races in one America.

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, 515 U.S. 900,
920, 115 S. Ct. 2475, 132 L. Ed. 2d 762 (1995), and I shall subject the
“tailoring” of their plans to “rigorous judicial review.” Grutter,
539 U.S., at 388, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (KENNEDY, J., dissenting).
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. Cf. id., at 390, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (KENNEDY,
J., dissenting) (expressing concern about “narrow fluctuation
bands”). 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.” See id., at 335, 123 S. Ct. 2325, 156 L. Ed. 2d 304
(“Properly understood, a ‘quota’ is a program in which a certain fixed
number or proportion of opportunities are ‘reserved exclusively for certain
minority groups'”  [*258]  (quoting Croson, 488 U.S., at
496, 109 S. Ct. 706, 102 L. Ed. 2d 854)).

In fact, the defining feature of both plans is greater emphasis upon student
choice. In Seattle, for example, in more than 80% of all cases, that choice
alone determines which high schools Seattle’s ninth graders will attend. After
ninth grade, students can decide voluntarily to transfer to a preferred
district high school (without any consideration of race-conscious criteria). Choice,
therefore, is the “predominant factor” in these plans. Race is
not. See Grutter, supra, at 393, 123 S. Ct. 2325, 156 L. Ed. 2d
304 (KENNEDY, J., dissenting) (allowing consideration of race only if it does
“not become a predominant factor”).

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 [*259]  transfers, and even when they are based upon a
community’s general population. See, e.g., North Carolina Bd. of Ed.
v. Swann, 402 U.S. 43, 46, 91 S. Ct. 1284, 28 L. Ed. 2d 586 (1971) (no
“absolute prohibition against [the] use” of mathematical ratios as a
“starting point”); Swann, 402 U.S., at 24-25, 91 S. Ct. 1267,
28 L. Ed. 2d 554 (approving the use of a ratio reflecting “the racial
composition of the whole school system” as a “useful starting
point,” but not as an “inflexible requirement”). Cf. United
States
v. Montgomery County Bd. of Ed., 395 U.S. 225, 232, 89 S. Ct.
1670, 23 L. Ed. 2d 263 (1969) (approving a lower court desegregation order that
“provided that the [school] board must move toward a goal under which ‘in
each school the ratio of white to Negro faculty members is substantially the
same as it is throughout the system,'” and “immediately”
requiring “the ratio of Negro to white teachers” in each school to be
equal to “the ratio of Negro to white teachers in . . . the system as a
whole”).

Second, broad-range limits on voluntary school choice plans are less
burdensome, and hence more narrowly tailored, see Grutter, supra, at
341, 123 S. Ct. 2325, 156 L. Ed. 2d 304, than other race-conscious restrictions
this Court has previously [*260]  approved. See, e.g., Swann,
supra, at 26-27, 91 S. Ct. 1267, 28 L. Ed. 2d 554; Montgomery Co. Bd.
of Ed.
, supra, at 232, 89 S. Ct. 1670, 23 L. Ed. 2d 263. 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. Cf. Wygant,
476 U.S., at 283, 106 S. Ct. 1842, 90 L. Ed. 2d 260. And, in Seattle, the
disadvantaged student loses at most one year at the high school of his choice.
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.  [*261]  ” 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.

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
board’s “compelling” objectives. The history of each school system
reveals highly segregated schools, followed by remedial plans that involved
forced busing, followed by efforts to attract or retain students through the
use of plans that abandoned busing and replaced it with greater student choice.
Both cities once tried to achieve more integrated schools by relying solely
upon measures such as redrawn district boundaries, new school building
construction, and unrestricted voluntary transfers. In neither city did these
prior attempts prove sufficient to [*262]  achieve the city’s
integration goals. See Parts I-A and I-B, supra, at 6-18.

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. See Milliken, 418 U.S., at 741-42, 94 S. Ct.
3112, 41 L. Ed. 2d 1069 (“No single tradition in public education is more
deeply rooted than local control over the operation of schools; local autonomy
has long been thought essential both to the maintenance of community concern
and support for public schools and to quality of the educational
process”). See also San Antonio Independent School Dist. v. Rodriguez,
411 U.S. 1, 49-50, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973) (extolling local
control for “the opportunity it offers for participation in the
decisionmaking process that determines how . . .  [*263]  local tax
dollars will be spent. Each locality is free to tailor local programs to local
needs. Pluralism also affords some opportunity for experimentation, innovation,
and a healthy competition for educational excellence”); Epperson v.
Arkansas, 393 U.S. 97, 104, 89 S. Ct. 266, 21 L. Ed. 2d 228 (1968)
(“Judicial interposition in the operation of the public school system of
the Nation raises problems requiring care and restraint. . . . By and large,
public education in our Nation is committed to the control of state and local
authorities”); Brown v. Board of Education, 349 U.S. 294,
299, 75 S. Ct. 753, 99 L. Ed. 1083, 71 Ohio Law Abs. 584 (1955) (Brown II)
(“Full implementation of these constitutional principles may require solution
of varied local school problems. 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”).

Experience in Seattle and Louisville is consistent with experience elsewhere.
In 1987, the U.S. Commission on Civil Rights studied 125 large school districts
seeking integration. It reported that most districts [*264]  — 92 of
them, in fact — adopted desegregation policies that combined two or more
highly race-conscious strategies, for example, rezoning or pairing. See Welch
83-91.

Having looked at dozens of amicus briefs, public reports, news stories,
and the records in many of this Court’s prior cases, which together span 50
years of desegregation history in school districts across the Nation, I have
discovered many examples of districts that sought integration through
explicitly race-conscious methods, including mandatory busing. Yet, I have
found no example or model that would permit this Court to say to Seattle
and to Louisville: “Here is an instance of a desegregation plan that is
likely to achieve your objectives and also makes less use of race-conscious criteria
than your plans.” And, if the plurality cannot suggest such a model — and
it cannot — then it seeks to impose a “narrow tailoring” requirement
that in practice would never be met.

Indeed, if there is no such plan, or if such plans are purely imagined, it is
understandable why, as the plurality notes, ante, at 27, Seattle school
officials concentrated on diminishing the racial component of their districts’
plan, but [*265]  did not pursue eliminating that element entirely.
For the plurality now to insist as it does, ante, at 27-28, that these
school districts ought to have said so officially is either to ask for the
superfluous (if they need only make explicit what is implicit) or to demand the
impossible (if they must somehow provide more proof that there is no
hypothetical other plan that could work as well as theirs). I am not
aware of any case in which this Court has read the “narrow tailoring”
test to impose such a requirement. Cf. People Who Care v. Rockford
Bd. of Ed. School Dist. No. 205
, 961 F.2d 1335, 1338 (CA7 1992)
(Easterbrook, J.) (“Would it be necessary to adjudicate the obvious before
adopting (or permitting the parties to agree on) a remedy . . . ?”).

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.
See ante, at 18-20. 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 [*266]  districts to use target ratios
based upon the district’s underlying population. See, e.g., Swann,
402 U.S., at 24-25, 91 S. Ct. 1267, 28 L. Ed. 2d 554; North Carolina Bd. of
Ed.
, 402 U.S., at 46, 91 S. Ct. 1284, 28 L. Ed. 2d 586; Montgomery
County Bd. of Ed.
, 395 U.S., at 232, 89 S. Ct. 1670, 23 L. Ed. 2d 263. The
reason is obvious: In Seattle, where the overall student population is 41%
white, permitting 85% white enrollment at a single school would make it much
more likely that other schools would have very few white students, whereas in
Jefferson County, with a 60% white enrollment, one school with 85% white
students would be less likely to skew enrollments elsewhere.

Moreover, there is research-based evidence supporting, for example, that a
ratio no greater than 50% minority — which is Louisville’s starting point, and
as close as feasible to Seattle’s starting point — is helpful in limiting the
risk of “white flight.” See Orfield, Metropolitan School
Desegregation: Impacts on Metropolitan Society, in Pursuit of a Dream Deferred:
Linking Housing and Education Policy 121, 125. Federal law also assumes that a
similar target percentage will help avoid detrimental “minority group isolation.”
See No Child Left Behind Act of 2001,  [*267]  Title V, Part C, 115
Stat. 1806, 20 U.S.C. § 7231 et seq. (2000 ed., Supp. IV); 34 CFR §§
280.2, 280.4 (2006) (implementing regulations). What other numbers are the
boards to use as a “starting point”? Are they to spend days, weeks,
or months seeking independently to validate the use of ratios that this Court
has repeatedly authorized in prior cases? Are they to draw numbers out of thin
air? These districts have followed this Court’s holdings and advice in
“tailoring” their plans. That, too, strongly supports the lawfulness
of their methods.

Nor could the school districts have accomplished their desired aims (e.g.,
avoiding forced busing, countering white flight, maintaining racial diversity)
by other means. Nothing in the extensive history of desegregation efforts over
the past 50 years gives the districts, or this Court, any reason to believe
that another method is possible to accomplish these goals. Nevertheless,
JUSTICE KENNEDY suggests that 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 [*268]  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.” Ante, at 8.

But, as to “strategic site selection,” Seattle has built one new high
school in the last 44 years (and that specialized school serves only 300
students). In fact, six of the Seattle high schools involved in this case were
built by the 1920’s; the other four were open by the early 1960’s. See
generally N. Thompson & C. Marr, Building for Learning: Seattle Public
Schools Histories, 1862-2000 (2002). As to “drawing” neighborhood
“attendance zones” on a racial basis, Louisville tried it, and it
worked only when forced busing was also part of the plan. See supra, at
12-14. As to “allocating resources for special programs,” Seattle and
Louisville have both experimented with this; indeed, these programs are often
referred to as “magnet schools,” but the limited desegregation effect
of these efforts extends at most to those few schools to which additional
resources are granted. In addition, there is no evidence from the experience of
these [*269]  school districts that it will make any meaningful
impact. See Brief for Respondents in No. 05-908, p. 42. As to “recruiting
faculty” on the basis of race, both cities have tried, but only as one
part of a broader program. As to “tracking enrollments, performance and
other statistics by race,” tracking reveals the problem; it does
not cure it.

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. Both, he explains,
cannot be true. He adds that this confusion illustrates that Louisville’s
assignment plan (or its explanation of it to this Court) is insufficiently
precise in respect to “who makes the decisions,”
“oversight,” “the precise circumstances in which an assignment
decision” will be made; and “which of two similarly situated children
will be subjected to a given race-based decision.” Ante, at 4.

The record suggests, however, that the child in question was not assigned to
the [*270]  school he preferred because he missed the kindergarten
application deadline. See App. in 05-915, p. 20. After he had enrolled and
after the academic year had begun, he then applied to transfer to his preferred
school after the kindergarten assignment deadline had passed, id., at
21, possibly causing school officials to treat his late request as an
application to transfer to the first grade, in respect to which the guidelines
apply. I am not certain just how the remainder of JUSTICE KENNEDY’s concerns
affect the lawfulness of the Louisville program, for they seem to be failures
of explanation, not of administration. But Louisville should be able to answer
the relevant questions on remand.

JUSTICE KENNEDY’s second concern is directly related to the merits of Seattle’s
plan: Why does Seattle’s plan group Asian-Americans, Hispanic-Americans,
Native-Americans, and African-Americans together, treating all as similar
minorities? Ante, at 6-7. The majority suggests that Seattle’s
classification system could permit a school to be labeled “diverse”
with a 50% Asian-American and 50% white student body, and no African-American
students, Hispanic students, or students of other ethnicity.  [*271]
Ante, at 6; ante, at 15-16 (opinion of the Court).

The 50/50 hypothetical has no support in the record here; it is conjured from
the imagination. In fact, Seattle apparently began to treat these different
minority groups alike in response to the federal Emergency School Aid Act’s
requirement that it do so. Siqueland 116-117. See also Hanawalt 31; Pub. L.
95-561, Tit. VI (1978) (prescribing percentage enrollment requirements for
“minority” students); Siqueland 55 (discussing HEW definition of
“minority”). Moreover, maintaining this federally mandated system of
classification makes sense insofar as Seattle’s experience indicates that the
relevant circumstances in respect to each of these different minority groups
are roughly similar, e.g., in terms of residential patterns, and call
for roughly similar responses. This is confirmed by the fact that Seattle has
been able to achieve a desirable degree of diversity without the greater
emphasis on race that drawing fine lines among minority groups would require.
Does the plurality’s view of the Equal Protection Clause mean that courts must
give no weight to such a board determination? Does it insist upon especially
strong [*272]  evidence supporting inclusion of multiple minority
groups in an otherwise lawful government minority-assistance program? If so,
its interpretation threatens to produce divisiveness among minority groups that
is incompatible with the basic objectives of the Fourteenth Amendment.
Regardless, the plurality cannot object that the constitutional defect is the
individualized use of race and simultaneously object that not enough account of
individuals’ race has been taken.

Finally, I recognize that the Court seeks to distinguish Grutter from
these cases by claiming that Grutter arose in “‘the context of
higher education.'” Ante, at 16. But that is not a meaningful legal
distinction. I have explained why I do not believe the Constitution could
possibly find “compelling” the provision of a racially diverse
education for a 23-year-old law student but not for a 13-year-old high school
pupil. See supra, at 46-48. And I have explained how the plans before us
are more narrowly tailored than those in Grutter. See supra, at
45. I add that one cannot find a relevant distinction in the fact that these
school districts did not examine the merits of applications “individually.
[*273]  ” See ante, at 13-15. The context here does not
involve admission by merit; a child’s academic, artistic, and athletic
“merits” are not at all relevant to the child’s placement. These are
not affirmative action plans, and hence “individualized scrutiny” is
simply beside the point.

The upshot is that these plans’ specific features — (1) their limited and
historically-diminishing use of race, (2) their strong reliance upon other
non-race-conscious elements, (3) their history and the manner in which the
districts developed and modified their approach, (4) the comparison with prior
plans, and (5) the lack of reasonably evident alternatives — together show
that the districts’ plans are “narrowly tailored” to achieve their
“compelling” goals. In sum, the districts’ race-conscious plans
satisfy “strict scrutiny” and are therefore lawful.

IV

Direct Precedent

Two additional precedents more directly related to the plans here at issue
reinforce my conclusion. The first consists of the District Court determination
in the Louisville case when it dissolved its desegregation order that there was
“overwhelming evidence of the Board’s good faith compliance with the
desegregation Decree [*274]  and its underlying purposes,”
indeed that the Board had “treated the ideal of an integrated system as
much more than a legal obligation — they consider it a positive, desirable
policy and an essential element of any well-rounded public school
education.” Hampton II, 102 F. Supp. 2d, at 370. When the court
made this determination in 2000, it did so in the context of the Louisville
desegregation plan that the board had adopted in 1996. 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 one claims that (the relevant portion of) Louisville’s plan was unlawful in
1996 when Louisville adopted it. To the contrary, there is every reason to
believe that it represented part of an effort to implement the 1978
desegregation order. But if the plan was lawful when it was first adopted and
if it was lawful the day before the District Court dissolved its order, how can
the plurality now suggest that it became unlawful the following day? Is
it conceivable that the Constitution, implemented through a court desegregation
order, could permit (perhaps require) the district [*275]  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? See id.,
at 380 (“The very analysis for dissolving desegregation decrees
supports continued maintenance of a desegregated system as a compelling state
interest”). The Equal Protection Clause is not incoherent. And federal
courts would rightly hesitate to find unitary status if the consequences of the
ruling were so dramatically disruptive.

Second, Seattle School Dist. No. 1, 458 U.S. 457, 102 S. Ct. 3187, 73 L.
Ed. 2d 896, is directly on point. That case involves the original Seattle Plan,
a more heavily race-conscious predecessor of the very plan now before
us. In Seattle School Dist. No. 1, this Court struck down a state
referendum that effectively barred implementation of Seattle’s desegregation
plan and “burdened all future attempts to integrate Washington schools in
districts throughout the State.” Id., at 462-463, 483, 102 S. Ct.
3187, 73 L. Ed. 2d 896. Because the referendum would have prohibited the
adoption of a school-integration plan that involved mandatory busing, and
because it would have imposed a special burden on school
integration [*276]  plans (plans that sought to integrate previously
segregated schools), the Court found it unconstitutional. Id., at
483-487, 102 S. Ct. 3187, 73 L. Ed. 2d 896.

In reaching this conclusion, the Court did not directly address the
constitutional merits of the underlying Seattle plan. But it explicitly cited Swann‘s
statement that the Constitution permitted a local district to adopt such a
plan. 458 U.S., at 472, n. 15, 102 S. Ct. 3187, 73 L. Ed. 2d 896. It also cited
to Justice Powell’s opinion in Bakke, approving of the limited
use of race-conscious criteria in a university-admissions “affirmative
action” case. 458 U.S., at 472, n. 15, 102 S. Ct. 3187, 73 L. Ed. 2d 896.
In addition, the Court stated that “attending an ethnically diverse
school,” id., at 473, 102 S. Ct. 3187, 73 L. Ed. 2d 896, could help
prepare “minority children for citizenship in our pluralistic
society,” hopefully “teaching members of the racial majority to live
in harmony and mutual respect with children of minority heritage.” Ibid.
(internal quotation marks and citation omitted).

It is difficult to believe that the Court that held unconstitutional a
referendum that would have interfered with the implementation of this plan
thought that the integration plan it sought to [*277]  preserve was
itself an unconstitutional plan. And if Seattle School Dist. No. 1 is
premised upon the constitutionality of the original Seattle Plan, it is equally
premised upon the constitutionality of the present plan, for the present plan is
the Seattle Plan, modified only insofar as it places even less emphasis
on race-conscious elements than its predecessors.

It is even more difficult to accept the plurality’s contrary view, namely that
the underlying plan was unconstitutional. If that is so, then all of
Seattle’s earlier (even more race-conscious) plans must also have been
unconstitutional. That necessary implication of the plurality’s position
strikes the 13th chime of the clock. How could the plurality adopt a
constitutional standard that would hold unconstitutional large numbers of
race-conscious integration plans adopted by numerous school boards over the
past 50 years while remaining true to this Court’s desegregation precedent?

V

Consequences

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 [*278]  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.

For one thing, consider the effect of the plurality’s views on the parties
before us and on similar school districts throughout the Nation. Will
Louisville and all similar school districts have to return to systems like
Louisville’s initial 1956 plan, which did not consider race at all? See supra,
at 12. That initial 1956 plan proved ineffective. Sixteen years into the plan,
14 of 19 middle and high schools remained almost totally white or almost
totally black. Ibid.

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. A 1987 Civil Rights Commission Study of 125 school districts in the
Nation demonstrated the breadth and variety of desegregation plans:

“The [study] documents almost 300 desegregation plans that were
implemented between 1961 and 1985. The degree of heterogeneity within
these [*279]  districts is immediately apparent. They are located in
every region of the country and range in size from Las Cruces, New Mexico, with
barely over 15,000 students attending 23 schools in 1968, to New York City,
with more than one million students in 853 schools. The sample includes
districts in urban areas of all sizes, suburbs (e.g., Arlington County,
Virginia) and rural areas (e.g., Jefferson Parish, Louisiana, and
Raleigh County, West Virginia). It contains 34 countywide districts with
central cities (the 11 Florida districts fit this description, plus Clark
County, Nevada and others) and a small number of consolidated districts (New Castle
County, Delaware and Jefferson County, Kentucky).

“The districts also vary in their racial compositions and levels of
segregation. Initial plans were implemented in Mobile, Alabama and Mecklenburg
County, North Carolina, and in a number of other southern districts in the face
of total racial segregation. At the other extreme, Santa Clara, California had
a relatively even racial distribution prior to its 1979 desegregation plan.
When the 1965 plan was designed for Harford County, Maryland, the district was
92 percent white. Compton, California,  [*280]  on the other hand,
became over 99 percent black in the 1980s, while Buffalo, New York had a
virtual 50-50 split between white and minority students prior to its 1977 plan.

“It is not surprising to find a large number of different desegregation
strategies in a sample with this much variation.” Welch 23 (footnotes
omitted).

A majority of these desegregation techniques explicitly considered a student’s
race. See id., at 24-28. Transfer plans, for example, allowed students
to shift from a school in which they were in the racial majority to a school in
which they would be in a racial minority. Some districts, such as Richmond,
California, and Buffalo, New York, permitted only “one-way” transfers,
in which only black students attending predominantly black schools were
permitted to transfer to designated receiver schools. Id., at 25.
Fifty-three of the 125 studied districts used transfers as a component of their
plans. Id., at 83-91.

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. Eight of those States condition approval of
transfers to another [*281]  school or district on whether the
transfer will produce increased racial integration. Eleven other States require
local boards to deny transfers that are not in compliance with the local school
board’s desegregation plans. See Education Commission of the States, Open
Enrollment: 50-State Report (2007), online at
http://mb2.ecs.org/reports/Report.aspx?id=268.

Arkansas, for example, provides by statute that “no student may transfer
to a nonresident district where the percentage of enrollment for the student’s
race exceeds that percentage in the student’s resident district.” Ark.
Code Ann. § 6-18-206(f)(1), as amended 2007 Ark. Gen. Acts 552 (2007). An Ohio
statute provides, in respect to student choice, that each school district must
establish “procedures to ensure that an appropriate racial balance is
maintained in the district schools.” Ohio Rev. Code Ann. §
3313.98(B)(2)(b)(iii) (Lexis Supp. 2006). Ohio adds that a “district may
object to the enrollment of a native student in an adjacent or other district
in order to maintain an appropriate racial balance.” § 3313.98 (F)(1)(a).

A Connecticut statute states that its student choice program will seek to
“preserve racial and ethnic [*282]  balance.” Conn. Gen.
Stat. § 10-266aa(b)(2) (2007). Connecticut law requires each school district to
submit racial group population figures to the State Board of Education. §
10-226a. Another Connecticut regulation provides that “any school in which
the Proportion for the School falls outside of a range from 25 percentage
points less to 25 percentage points more than the Comparable Proportion for the
School District, shall be determined to be racially imbalanced.” Conn.
Agencies Regs. § 10-226e-3(b) (1999). A “racial imbalance”
determination requires the district to submit a plan to correct the racial
imbalance, which plan may include “mandatory pupil reassignment.” §§
10-226e-5(a) and (c)(4).

Interpreting that State’s Constitution, the Connecticut Supreme Court has held
legally inadequate the reliance by a local school district solely upon some of
the techniques JUSTICE KENNEDY today recommends (e.g., reallocating
resources, etc.). See Sheff v. O’Neill, 238 Conn. 1, 678 A.2d
1267 (1996). The State Supreme Court wrote: “Despite the initiatives
undertaken by the defendants to alleviate the severe racial and ethnic
disparities among school districts, and [*283]  despite the fact that
the defendants did not intend to create or maintain these disparities, the
disparities that continue to burden the education of the plaintiffs infringe
upon their fundamental state constitutional right to a substantially equal
educational opportunity.” Id., at 42, 678 A. 2d, at 1289.

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. See supra, at 27. In
many such instances, the contentious force of legal challenges to these
classifications, meritorious or not, would displace earlier calm.

The wide variety of different integration plans that school districts use
throughout the Nation suggests that the problem of racial segregation in
schools, including de facto segregation, is difficult to solve. The fact
that many such plans have used explicitly racial criteria suggests that such
criteria have an important, sometimes necessary, role to play. The fact that
the controlling opinion would make a school district’s use of such criteria
often unlawful (and the plurality’s “colorblind” view
would [*284]  make such use always unlawful) suggests that today’s
opinion will require setting aside the laws of several States and many local
communities.

As I have pointed out, supra, at 4, de facto resegregation is on
the rise. See Appendix A, infra. It is reasonable to conclude that such
resegregation can create serious educational, social, and civic problems. See
supra,
at 37-45. Given the conditions in which school boards work to set
policy, see supra, at 20-21, they may need all of the means presently at
their disposal to combat those problems. Yet the plurality would deprive them
of at least one tool that some districts now consider vital — the limited use
of broad race-conscious student population ranges.

I use the words “may need” here deliberately. The plurality, or at
least those who follow JUSTICE THOMAS'” ‘color-blind'” approach, see ante,
at 26-27 (THOMAS, J., concurring); Grutter, 539 U.S., at 353-354, 123 S.
Ct. 2325, 156 L. Ed. 2d 304 (THOMAS, J., concurring in part and dissenting in
part), may feel confident that, to end invidious discrimination, one must end all
governmental use of race-conscious criteria including those with inclusive
objectives. See ante, at [*285]  40-41 (plurality opinion);
see also ante, at 26 (THOMAS, J., concurring). By way of contrast, I do
not claim to know how best to stop harmful discrimination; how best to create a
society that includes all Americans; how best to overcome our serious problems
of increasing de facto segregation, troubled inner city schooling, and
poverty correlated with race. But, as a judge, I do know that the Constitution
does not authorize judges to dictate solutions to these problems. Rather, the
Constitution creates a democratic political system through which the people
themselves must together find answers. And it is for them to debate how best to
educate the Nation’s children and how best to administer America’s schools to
achieve that aim. The Court should leave them to their work. And it is for them
to decide, to quote the plurality’s slogan, whether the best “way to stop
discrimination on the basis of race is to stop discriminating on the basis of
race.” Ante, at 40-41. See also Parents Involved VII, 426
F.3d at 1222 (Bea, J., dissenting) (“The way to end racial discrimination
is to stop discriminating by race”). That is why the Equal Protection
Clause outlaws invidious [*286]  discrimination, but does not
similarly forbid all use of race-conscious criteria.

Until today, this Court understood the Constitution as affording the people,
acting through their elected representatives, freedom to select the use of
“race-conscious” criteria from among their available options. See Adarand
Constructors, Inc.
, 515 U.S., at 237, 115 S. Ct. 207, 132 L. Ed. 2d 158
(“Strict scrutiny” in this context is “[not] ‘strict in theory,
but fatal in fact'” (quoting Fullilove, 448 U.S., at 519, 100 S.
Ct. 2758, 65 L. Ed. 2d 902 (Marshall, J., concurring in judgment))). Today,
however, the Court restricts (and some Members would eliminate) that leeway. I
fear the consequences of doing so for the law, for the schools, for the
democratic process, and for America’s efforts to create, out of its diversity,
one Nation.

VI

Conclusions

To show that the school assignment plans here meet the requirements of the
Constitution, I have written at exceptional length. But that length is
necessary. I cannot refer to the history of the plans in these cases to justify
the use of race-conscious criteria without describing that history in full. I
cannot rely upon Swann‘s statement that the use of race-conscious limits
is [*287]  permissible without showing, rather than simply asserting,
that the statement represents a constitutional principle firmly rooted in
federal and state law. Nor can I explain my disagreement with the Court’s
holding and the plurality’s opinion, without offering a detailed account of the
arguments they propound and the consequences they risk.

Thus, the opinion’s reasoning is long. But its conclusion is short: The plans
before us satisfy the requirements of the Equal Protection Clause. And it is
the plurality’s opinion, not this dissent that “fails to ground the result
it would reach in law.” Ante, at 28.

Four basic considerations have led me to this view. First, the histories
of Louisville and Seattle reveal complex circumstances and a long tradition of
conscientious efforts by local school boards to resist racial segregation in
public schools. 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. For decades now, these school boards have considered and
adopted and revised assignment plans that sought to rely less upon race, to
emphasize greater student choice, and to improve [*288]  the
conditions of all schools for all students, no matter the color of their skin, no
matter where they happen to reside. The plans under review — which are less
burdensome, more egalitarian, and more effective than prior plans — continue
in that tradition. And their history reveals school district goals whose
remedial, educational, and democratic elements are inextricably intertwined
each with the others. See Part I, supra, at 2-21.

Second, since this Court’s decision in Brown, the law has
consistently and unequivocally approved of both voluntary and compulsory
race-conscious measures to combat segregated schools. The Equal Protection
Clause, ratified following the Civil War, has always distinguished in practice
between state action that excludes and thereby subordinates racial minorities
and state action that seeks to bring together people of all races. From Swann
to Grutter, this Court’s decisions have emphasized this distinction,
recognizing that the fate of race relations in this country depends upon unity
among our children, “for unless our children begin to learn together,
there is little hope that our people will ever learn to live together.” Milliken,
418 U.S., at 783, 94 S. Ct. 3112, 41 L. Ed. 2d 1069 [*289]
(Marshall, J., dissenting). See also C. Sumner, Equality Before the Law:
Unconstitutionality of Separate Colored Schools in Massachusetts, in 2 The
Works of Charles Sumner 327, 371 (1849) (“The law contemplates not only
that all be taught, but that all shall be taught together”). See Part II, supra,
at 21-37.

Third, the plans before us, subjected to rigorous judicial review, are
supported by compelling state interests and are narrowly tailored to accomplish
those goals. Just as diversity in higher education was deemed compelling in Grutter,
diversity in public primary and secondary schools — where there is even more
to gain — must be, a fortiori, a compelling state interest. Even apart
from Grutter, five Members of this Court agree that “avoiding
racial isolation” and “achieving a diverse student population”
remain today compelling interests. Ante, at 17-18 (opinion of KENNEDY,
J.). These interests combine remedial, educational, and democratic objectives.
For the reasons discussed above, however, I disagree with JUSTICE KENNEDY that
Seattle and Louisville have not done enough to demonstrate that their present
plans are necessary to continue upon the path [*290]  set by Brown.
These plans are more “narrowly tailored” than the
race-conscious law school admissions criteria at issue in Grutter.
Hence, their lawfulness follows a fortiori from this Court’s prior
decisions. See Parts III-IV, supra, at 37-57.

Fourth, the plurality’s approach risks serious harm to the law and for
the Nation. Its view of the law rests either upon a denial of the distinction
between exclusionary and inclusive use of race-conscious criteria in the context
of the Equal Protection Clause, or upon such a rigid application of its
“test” that the distinction loses practical significance.
Consequently, the Court’s decision today slows down and sets back the work of
local school boards to bring about racially diverse schools. See Part V, supra,
at 57-63.

Indeed, the consequences of the approach the Court takes today are serious.
Yesterday, the plans under review were lawful. Today, they are not. Yesterday,
the citizens of this Nation could look for guidance to this Court’s unanimous
pronouncements concerning desegregation. Today, they cannot. Yesterday, school
boards had available to them a full range of means to combat segregated
schools. Today,  [*291]  they do not.

The Court’s decision undermines other basic institutional principles as well.
What has happened to stare decisis? The history of the plans before us,
their educational importance, their highly limited use of race — all these and
more — make clear that the compelling interest here is stronger than in Grutter.
The plans here are more narrowly tailored than the law school admissions
program there at issue. Hence, applying Grutter‘s strict test, their
lawfulness follows a fortiori. To hold to the contrary is to transform
that test from “strict” to “fatal in fact” — the very
opposite of what Grutter said. And what has happened to Swann? To
McDaniel? To Crawford? To Harris? To School Committee
of Boston?
To Seattle School Dist. No. 1? After decades of vibrant
life, they would all, under the plurality’s logic, be written out of the law.

And what of respect for democratic local decisionmaking by States and school
boards? For several decades this Court has rested its public school decisions
upon Swann‘s basic view that the Constitution grants local school districts
a significant degree of leeway where the inclusive use of
race-conscious [*292]  criteria is at issue. Now localities will have
to cope with the difficult problems they face (including resegregation)
deprived of one means they may find necessary.

And what of law’s concern to diminish and peacefully settle conflict among the
Nation’s people? Instead of accommodating different good-faith visions of our
country and our Constitution, today’s holding upsets settled expectations,
creates legal uncertainty, and threatens to produce considerable further
litigation, aggravating race-related conflict.

And what of the long history and moral vision that the Fourteenth Amendment
itself embodies? The plurality cites in support those who argued in Brown
against segregation, and JUSTICE THOMAS likens the approach that I have taken
to that of segregation’s defenders. See ante, at 39-41 (plurality
opinion) (comparing Jim Crow segregation to Seattle and Louisville’s
integration polices); ante, at 28-32 (THOMAS, J., concurring). But
segregation policies did not simply tell schoolchildren “where they could
and could not go to school based on the color of their skin,” ante,
at 40 (plurality opinion); they perpetuated a caste system rooted in the
institutions of slavery [*293]  and 80 years of legalized
subordination. The lesson of history, see ante, at 39 (plurality
opinion), is not that efforts to continue racial segregation are
constitutionally indistinguishable from efforts to achieve racial integration.
Indeed, it is a cruel distortion of history to compare Topeka, Kansas, in the
1950’s to Louisville and Seattle in the modern day — to 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). This is not to deny that there is a cost in applying
“a state-mandated racial label.” Ante, at 17 (KENNEDY, J.,
concurring in part and concurring in judgment). But that cost does not
approach, in degree or in kind, the terrible harms of slavery, the resulting
caste system, and 80 years of legal racial segregation.

* * *

Finally, what of the hope and promise of Brown? For much of this
Nation’s history, the races remained divided. It was not long ago that people
of different races drank from separate fountains, rode on separate buses, and
studied in separate schools. In this Court’s finest hour, Brown v.
Board
 [*294]  of Education challenged this history and
helped to change it. For Brown held out a promise. It was a promise
embodied in three Amendments designed to make citizens of slaves. It was the
promise of true racial equality — not as a matter of fine words on paper, but
as a matter of everyday life in the Nation’s cities and schools. It was about
the nature of a democracy that must work for all Americans. It sought one law,
one Nation, one people, not simply as a matter of legal principle but in terms
of how we actually live.

Not everyone welcomed this Court’s decision in Brown. Three years after
that decision was handed down, the Governor of Arkansas ordered state militia
to block the doors of a white schoolhouse so that black children could not
enter. The President of the United States dispatched the 101st Airborne
Division to Little Rock, Arkansas, and federal troops were needed to enforce a
desegregation decree. See Cooper v. Aaron, 358 U.S. 1, 78 S. Ct.
1401, 3 L. Ed. 2d 5 (1958). Today, almost 50 years later, attitudes toward race
in this Nation have changed dramatically. Many parents, white and black alike,
want their children to attend schools with children of different races. Indeed,
[*295]  the very school districts that once spurned integration now
strive for it. The long history of their efforts reveals the complexities and
difficulties they have faced. And in light of those challenges, they have asked
us not to take from their hands the instruments they have used to rid their
schools of racial segregation, instruments that they believe are needed to
overcome the problems of cities divided by race and poverty. The plurality
would decline their modest request.

The plurality is wrong to do so. The last half-century has witnessed great
strides toward racial equality, but we have not yet realized the promise of Brown.
To invalidate the plans under review is to threaten the promise of Brown.
The plurality’s position, I fear, would break that promise. This is a decision
that the Court and the Nation will come to regret.

I must dissent.