Having made that determination (based on no objective measure that I can detect), a judge following the dissents approach will set the level of scrutiny to achieve the desired result. Today, they are not. That determination typically will not be nearly as difficult as the dissent makes it seem. 929; that provision was repealed in 1988, see 102 Stat. 733, 741742 (1998) (hereinafter Hallinan). App. This Court then held that the initiativewhich would have prevented the Seattle Plan from taking effectviolated the Fourteenth Amendment. See Grutter, 539 U.S. at 328. In both cities plaintiffs filed lawsuits claiming unconstitutional segregation. This suggests that a decision against jurisdiction rather than on the merits would be a severe disappointment. Id., at 240 (Thomas, J., concurring in part and concurring in judgment) (As far as the Constitution is concerned, it is irrelevant whether a governments 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). The distinctions between de jure and de facto segregation extended to the remedies available to governmental units in addition to the courts. Instead of accommodating different good-faith visions of our country and our Constitution, todays holding upsets settled expectations, creates legal uncertainty, and threatens to produce considerable further litigation, aggravating race-related conflict. See 377 F.3d 949, 10051006 (CA9 2004) (Parents Involved VI) (Graber, J., dissenting). Hence, their lawfulness follows a fortiori from this Courts prior decisions. Statement in School Comm. 05915, at 12, and n.13. See also, e.g., Offerman v. Nitkowski, 378 F.2d 22, 24 (CA2 1967); Deal v. Cincinnati Bd. 1996). PARENTS INVOLVED IN COMMUNITY SCHOOLS, PETITIONER. These plans are unconstitutional. 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 todays decision. in No. Disappointed students are not rejected from a States flagship graduate program; they simply attend a different one of the districts many public schools, which in aspiration and in fact are substantially equal. 2d 834, 837845, 855862 (WD Ky. 2004). 1, a consolidated 2007 ruling that resolved both cases, the Court ultimately struck down the school plans at issue, holding that they violated the . See id., at 519 (Kennedy, J., concurring in part and concurring in judgment). The dissents permissive strict scrutiny (which bears more than a passing resemblance to rational-basis review) could invite widespread governmental deployment of racial classifications. Yet the plurality would deprive them of at least one tool that some districts now consider vitalthe limited use of broad race-conscious student population ranges. of Los Angeles City Unified School Dist., 610 F.2d 661, 662664 (1979), the Ninth Circuit rejected a federal constitutional challenge to a school districts use of mandatory faculty transfers to ensure that each schools faculty makeup would fall within 10% of the districtwide racial composition. Accord, post, at 22 ([T]he Court set forth in Swann a basic principle of constitutional lawa 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 Swanns guidance for decades to follow); post, at 27 (stating how lower courts understood and followed Swanns 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 ([T]odays opinion will require setting aside the laws of several States and many local communities); post, at 66 (And what has happened to Swann? Cities around the country are often segregated based on race with certain racial or ethnic groups concentrated in particular areas, possibly as a result of poverty or immigration. The Seattle school district runs ten public high schools. See Craig v. Boren, 429 U. S. 190, 211 (1976) (concurring opinion). 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. 05908, at 103a (describing application of racial tiebreaker based on current white percentage of 41 percent and current minority percentage of 59 percent (emphasis added)). in Davis v. County School Board, O.T. 1953, No. This fundamental principle goes back, in this context, to Brown itself. See post, at 37. of Oral Arg. of Ed. Strict scrutiny is not strict in theory, but fatal in fact. . If this interest justifies race-conscious measures today, then logically it will justify race-conscious measures forever. 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. ment one would expect to find if black achievement were contin- 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. The plurality, by contrast, does not acknowledge that the school districts have identified a compelling interest here. Statements after the decision You're all set! How does one tell when a racial classification is invidious? 4 Id., at 1516; Memorandum from Stephen W. Daeschner, Superintendent, to the Board of Education, Jefferson Cty. For this reason, among others, I do not join Parts IIIB and IV. At most, those statistics show a national trend toward classroom racial imbalance. of Cal. United States v. Fordice, 505 U. S. 717, 745 (1992) (Thomas, J., concurring). 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. 05915, p. 48, but we are nonetheless obliged to ensure that it exists, Arbaugh v. Y & H Corp., 546 U. S. 500, 514 (2006). 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? See Brief of the Asian American Legal Foundation as Amicus Curiae in Support of Petitioners at 5. in No. 5. 10226a. Section 2. 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. [Footnote 3] The only justification for refusing to acknowledge the obvious importance of that difference is the citation of a few recent opinionsnone of which even approached unanimitygrandly proclaiming that all racial classifications must be analyzed under strict scrutiny. See, e.g., Adarand Constructors, Inc. v. Peńa, 515 U. S. 200, 227 (1995). See, e.g., Swann v. Charlotte-Mecklenburg Bd. Unlike the dissenters, I am unwilling to delegate my constitutional responsibilities to local school boards and allow them to experiment with race-based decisionmaking on the assumption that their intentions will forever remain as good as Justice Breyers. See, e.g., Brief for Appellees on Reargument in Davis v. County School Board, O.T. 1953, No. 1725, 2841. Although apparently Joshua has now been granted a transfer to Bloom, the school to which transfer was denied under the racial guidelines, Tr. The present cases, unlike Fullilove but like our decision in Wygant, 476 U. S. 267, require us to ask whether the Board[s] actions[s] advanc[e] the public interest in educating children for the future, id., at 313 (Stevens, J., dissenting) (emphasis added). Overall these efforts brought about considerable racial integration. More specifically, the Court stated that race could be used as a plus, but not in such a way that isolates the applicant from the pool of those being considered. It was from this decision that the Parents Involved in Community Schools applied for writ of certiorari to the U.S. Supreme Court. The principal interest advanced in these cases to justify the use of race-based criteria goes by various names. And it was Brown, after all, focusing upon primary and secondary schools, not Sweatt v. Painter, 339 U. S. 629 (1950), focusing on law schools, or McLaurin v. Oklahoma State Regents for Higher Ed., 339 U. S. 637 (1950), focusing on graduate schools, that affected so deeply not only Americans but the world. 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. By limiting the School Districts use of race, it will be more difficult for it to cure these defects. 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. 7045 and 7291 (WD Ky., Sept. 24, 1985), p.3; Memorandum from Donald W. Ingwerson, Superintendent, to the Board of Education, Jefferson Cty. The Chief Justice delivered the opinion of the Court with respect to Parts I, II, IIIA, and IIIC, concluding: 1. of Oral Arg. The Court of Appeals for the Ninth Circuit held that the District had a compelling state interest in achieving the benefits of racial diversity and that its plan was narrowly tailored. See N. St. John, School Desegregation Outcomes for Children 6768 (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 183186 (M. Saks & L. Saxe eds. The enduring hope is that race should not matter; the reality is that too often it does. (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). See Welch 8391. Regardless of the constitutional validity of such remediation, see Croson, supra, at 524525 (Scalia, J., concurring in judgment), it does not apply here. See also Parents Involved VII, 426 F.3d, at 1194 (Kozinski, J., concurring); Strauss, Discriminatory Intent and the Taming of Brown, 56 U. Chi. Because of its importance, I shall repeat what this Court said about the matter in Swann. schoolId=1043&reportLevel=School&orgLinkId=1043& Those entrusted with directing our public schools can bring to bear the creativity of experts, parents, administrators, and other concerned citizens to find a way to achieve the compelling interests they face without resorting to widespread governmental allocation of benefits and burdens on the basis of racial classifications. The concerns of Parents Involved are illustrated by Jill Kurfirst, who sought to enroll her ninth-grade son, Andy Meeks, in Ballard High Schools special Biotechnology Career Academy. [Footnote 28]. See, e.g., n.1, supra. Specifically, Kennedy finds that the districts could have achieved the same goal through less racially charged means. Brief for Petitioner at 3943. 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: [T]he Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their color or race. Brief for Appellants in Nos. Even so the race factor was found to be invalid. Id. Neither party disputes, however, that Joshuas transfer application was denied under the racial guidelines, and Merediths objection is not that the guidelines were misapplied but rather that race was used at all. 05915, pp. Therefore, it is not nearly as apparent as the dissent suggests that increased interracial exposure automatically leads to improved racial attitudes or race relations. However, racial imbalance without intentional state action to separate the races does not amount to segregation. The remedy, though, was limited in time and limited to the wrong. Cf. The original litigation eventually became a lawsuit against the Jefferson County School System, which in April 1975 absorbed Louisvilles schools and combined them with those of the surrounding suburbs. And second, Kennedy faults the dissent for ignoring the "presumptive invalidity of a State's use of racial classifications to differentiate its treatment of individuals.". In this Courts finest hour, Brown v. Board of Education challenged this history and helped to change it. v. Brinkman, 433 U. S. 406, 413 (1977); Dayton Bd. 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. And my view was the rallying cry for the lawyers who litigated Brown. 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 plans (plans that sought to integrate previously segregated schools), the Court found it unconstitutional. 539 U.S., at 325, 123 S. Ct. 2325, 156 L. Ed. The decision was a 5-4 split on the Court, with both sides claiming that their position was truest to the precedent set in Brown v. Board of Education (1954). 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. The plan was in effect from 19992002, for three school years. Yesterday, the plans under review were lawful. It is an interest in maintaining hard-won gains. A non-profit group, Parents Involved in Community Schools (Parents), sued the District, arguing that the racial tiebreaker violated the Equal Protection Clause of the Fourteenth Amendment as well as the Civil Rights Act of 1964 and Washington state law. Similarly, Jefferson Countys use of racial classifications has only a minimal effect on the assignment of students. The Seattle Plan: Mandatory Busing, 1978 to 1988. Voluntary cessation does not moot a case or controversy unless subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur, Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189 (2000) (quoting United States v. Concentrated Phosphate Export Assn., Inc., 393 U. S. 199, 203 (1968) (internal quotation marks omitted)), a heavy burden that Seattle has clearly not met.
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