Text - 2007 Supreme Court Reversal of School Integration p.8

[johnkarls]

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, Title V, Part C, 115 Stat. 1806, 20 U.S.C. § 7231 et seq. (2000 ed., Supp. IV); 34 CFR §§ 280.2, [**606] 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 [***277] 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 [*2828] 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 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 ____, 168 L. Ed. 2d, at 566.


But, as to "strategic site selection," Seattle [***278] 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 ____ - ____, 168 L. Ed. 2d, at 582-583. 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 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 [***279] 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 [**607] will be subjected to a given race-based decision." Ante, at ____, 168 L. Ed. 2d, at 564.

The record suggests, however, that the child in question was not assigned to the 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 [***280] 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 [*2829] 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 ____ - ____, 168 L. Ed. 2d, at 565. 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. Ante, at ____, 168 L. Ed. 2d, at 520; ante, at ____ - ____, 168 L. Ed. 2d, at 525-526 (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 [***281] 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 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 [***282] . 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 ____, 168 L. Ed. 2d, at 526. But that is not a meaningful [**608] 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 ____ - ____, 168 L. Ed. 2d, at 602-604. And I have explained how the plans before us are more narrowly tailored than those in Grutter. See supra, at ____, 168 L. Ed. 2d, at 602. I add that one cannot find a relevant distinction in the fact that these school districts did not examine the merits of applications "individual[ly]." See ante, at ____ - ____, 168 L. Ed. 2d, at 524-525. 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 [***283] 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 [*2830] 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 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." [***284] 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 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 [***285] 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 [**609] 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 "burden[ed] 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 plans (plans that sought to integrate [***286] 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 "[a]ttending an ethnically diverse [*2831] 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 [***287] have interfered with the implementation of this plan thought that the integration plan it sought to 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 [***288] generations through principles that remained workable over time. [**610] Hence it is important to consider the potential consequences of the plurality's approach, as measured against the Constitution's objectives.

To do so provides further reason to believe that the plurality's approach is legally unsound.

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 ____, 168 L. Ed. 2d, at 582. 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 [***289] 300 desegregation plans that were implemented between 1961 and 1985. The degree of heterogeneity within these 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 [*2832] 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. [***290] When the 1965 plan was designed for Harford County, Maryland, the district was 92 percent white. Compton, California, 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 [**611] 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 [***291] districts to enact interdistrict or intradistrict open choice plans. Eight of those States condition approval of transfers to another 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 "[n]o 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 "[p]rocedures 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 [***292] 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 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 "[a]ny 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 [*2833] "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 [***293] 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 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 ____, [**612] 168 L. Ed. 2d, at 591. 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 [***294] 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 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 ____, 168 L. Ed. 2d, at 577, 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 ____ - ____, 168 L. Ed. 2d, at 597-602. Given the conditions in which school boards work to set policy, see supra, at ____ - ____, 168 L. Ed. 2d, at 586-587, 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, [***295] see ante, at ____ - ____, 168 L. Ed. 2d, at 556-557 (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 ____ - ____, 168 L. Ed. 2d, at 540-541 (plurality opinion); see also ante, at ____, 168 L. Ed. 2d, at 556 (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 [*2834] them to decide, to quote [***296] 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 ____ - ____, 168 L. Ed. 2d, at 540-541. 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 discrimination, but does not similarly forbid all use of race-conscious criteria.

Until today, this Court understood [**613] 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 ("[S]trict 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 [***297] 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 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 ____, 168 L. Ed. 2d, at 533.

Four basic considerations have led me to this view. First, the [***298] 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 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 ____ - ____, 168 L. Ed. 2d, at 576-587.

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 [***299] , ratified following the Civil War, has always distinguished in practice between state action that excludes and thereby subordinates racial minorities [*2835] 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 [**614] 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 (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 ____ - ____, 168 L. Ed. 2d, at 588-597.

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 [***300] 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 "achiev[ing] a diverse student population" remain today compelling interests. Ante, at ____ - ____, 168 L. Ed. 2d, at 572 (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 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 ____ - ____, 168 L. Ed. 2d, at 597-609.

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 [***301] 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 ____ - ____, 168 L. Ed. 2d, at 609-613.

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, 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 [***302] from "strict" to "fatal in fact"--the very opposite of what Grutter said. And what has happened [**615] 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 [*2836] 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 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 [***303] 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 ____ - ____, 168 L. Ed. 2d, at 540-541 (plurality opinion) (comparing Jim Crow segregation to Seattle and Louisville's integration polices); ante, at ____ - ____, 168 L. Ed. 2d, at 557-560 (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 ____, 168 L. Ed. 2d, at 541 (plurality opinion); they perpetuated a caste system rooted in the institutions of slavery and 80 years of legalized subordination. The lesson of history, see ante, at ____, 168 L. Ed. 2d, at 540 (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 [***304] 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 ____, 168 L. Ed. 2d, at 571 (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 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 [**616] Americans. It sought one law, one Nation, one people, not simply as a matter of legal principle [***305] 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 [*2837] 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. 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 [***306] 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.
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
Region 1950 - 1954 1960 - 1961 1968 1972 1976 1980 1989 1999 2000
*10*Percentage in 90-100% Nonwhite Schools
Northeast 40 42.7 46.9 51.4 48.7 49.8 50.2 51.2
Border 100 59 60.2 54.7 42.5 37.0 33.7 39.7 39.6
South 100 100 77.8 24.7 22.4 23.0 26.0 31.1 30.9
Midwest 53 56 58.0 57.4 51.1 43.6 40.1 45.0 46.3
West 27 50.8 42.7 36.3 33.7 26.7 29.9 29.5
U.S. 64.3 38.7 35.9 33.2 33.8 37.4 37.4
*10*Percentage in 50-100% Nonwhite Schools
Northeast 62 66.8 69.9 72.5 79.9 75.4 77.5 78.3
Border 100 69 71.6 67.2 60.1 59.2 58.0 64.8 67.0
South 100 100 80.9 55.3 54.9 57.1 59.3 67.3 69.0
Midwest 78 80 77.3 75.3 70.3 69.5 69.4 67.9 73.3
West 69 72.2 68.1 67.4 66.8 67.4 76.7 75.3
U.S. 76.6 63.6 62.4 62.9 64.9 70.1 71.6


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

[**617] Appendix A to opinion of BREYER, J.

[*2838] 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)
% White *4*% White Students in School of Average Black Student *3*Change
2003 1970 1980 1991 2003 1970 - 1980 1980 - 1991 1991 - 2003
Alabama 60 33 38 35 30 5 -3 -5
Arkansas 70 43 47 44 36 4 -3 -8
California 33 26 28 27 22 2 -1 -5
Connecticut 68 44 40 35 32 -4 -5 -3
Delaware 57 47 69 65 49 22 -4 -16
Florida 51 43 51 43 34 8 -8 -9
Georgia 52 35 38 35 30 3 -3 -5
Illinois 57 15 19 20 19 4 1 -1
Indiana 82 32 39 47 41 7 8 -6
Kansas 76 52 59 58 51 7 -1 -7
Kentucky 87 49 74 42 65 25 -2 -7
Louisiana 48 31 33 32 27 2 -1 -5
Maryland 50 30 35 29 23 5 -6 -6
Massachusetts 75 48 50 45 38 2 -5 -7
Michigan 73 22 23 22 22 1 -1 0
Mississippi 47 30 29 30 26 -1 1 -4
Missouri 78 21 34 40 33 13 6 -7
Nebraska 80 33 66 62 49 33 -4 -13
New Jersey 58 32 26 26 25 -6 0 -1
New York 54 29 23 20 18 -6 -3 -2
Nevada 51 56 68 62 38 12 -6 -24
N. Carolina 58 49 54 51 40 5 -3 -11
Ohio 79 28 43 41 32 15 -2 -9
Oklahoma 61 42 58 51 42 16 -7 -9
Pennsylvania 76 28 29 31 30 1 2 -1
S. Carolina 54 41 43 42 39 2 -1 -3
Tennessee 73 29 38 36 32 9 -2 -4
Texas 39 31 35 35 27 4 0 -8
Virginia 61 42 47 46 41 5 -1 -5
Wisconsin 79 26 45 39 29 19 -6 -10


Source: G. Orfield & C. Lee, Racial Transformation and the Changing Nature of Segregation 18 (Table (Jan. 2006), (Civil Rights Project), online at http://www.civilrightsproject.harvard.e ... nsformatio n.pdf.

[**618] Appendix A to opinion of BREYER, J.

Percentage 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, [***307] [*2838] [***308] [*2839] A Multiracial Society with Segregated Schools: Are We Losing the Dream?, p 30, fig. 5 (Jan. 2003), online at http://www.civilrightsproject.harvard.e ... eDream.pdf (Frankenberg, Lee, & Orfield) (using U. S. Dept. of Education and National Center for Education Statistics Common Core data).

[**619] Appendix A to opinion of BREYER, J.

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

[SEE GRAPH IN ORIGINAL]

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

[**620] Appendix [*2840] B to opinion of BREYER, J.

B

Sources for Parts I-A and I-B

Part I-A: Seattle

Section 1. Segregation

P 1 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 [***309] 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); D. Pieroth, Desegregating the Public Schools, Seattle, Washington, 1954-1968, p 6 (Dissertation Draft 1979) (hereinafter Pieroth).

Section 2. Preliminary Challenges, 1956 to 1969

P 1 Pieroth 32, 41; Hanawalt 4.

P 2 Hanawalt 11-13.

P 3 Id., at 5, 13, 27.

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

P 1 Complaint in Adams v. Forbes Bottomly, Civ. No. 6704 (WD Wash., 1969), pp 10-11.

P 2 Id., at 10, 14-15.

P 3 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.

P 4 Siqueland 5, 7, 21.

Section 4. The NAACP's [***310] Second Legal Challenge, 1977

P 1 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 23-24.

P 2 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.

[**621] Section 5. The Seattle Plan: Mandatory Busing, 1978 to 1988

P 1 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.

P 2 Id., at 151-152; Hanawalt 37-38; Seattle School Dist. No. 1, supra, at 461, 102 S. Ct. 3187, 73 L. Ed. 2d 896 [***311] ; Complaint and Motion to Dismiss or Affirm in Seattle School Dist. No. 1, supra.

P 3 Seattle School Dist. No. 1, supra, at 461, 102 S. Ct. 3187, 73 L. Ed. 2d 896; Hanawalt 40.

P 4 See generally Seattle School Dist. No. 1, supra.

Section 6. Student Choice, 1988 to 1998

P 1 L. Kohn, Priority Shift: The Fate of Mandatory Busing for School Desegregation in Seattle and the Nation 27-30, 32 (Mar. 1996).

P 2 Id., at 32-34.

Section 7. The Current Plan, 1999 to the Present

P 1 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).

P 2 [*2841] 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 ... 05all.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/faci ... hoicesBoar dApril 20052005final. [***312] pdf.

P 3 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

P 1 Hampton v. Jefferson Cty., Bd. of Ed., 72 F. Supp. 2d 753, 756, and nn 2, 4, 5 (WD Ky. 1999) (Hampton I).

Section 2. Court-Imposed Guidelines and Busing, 1972 to 1991

P 1 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 [**622] 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).

P 2 Id., at 2, 3, and Attachment 1.

P 3 Id., at 4-16.

P 4 Memorandum Opinion and Order [***313] 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).

P 5 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 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

P 1 1991 Memorandum 1-4, 7-11 (Stipulated Exh. 72); Brief for Respondents in No. 05-915, P. 12, n 13.

P 2 1991 Memorandum 14-16.

P 3 Id., at 11, 14-15.

P 4 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

P 1 1996 Memorandum 1-4; Brief for Respondents in No. 05-915, at 12, and n 13.

P 2 1996 Memorandum 4-7, and [***314] Attachment 2; Hampton I, supra, at 768.

P 3 1996 Memorandum 5-8; Hampton I, supra, at 768, n. 30

P 4 Hampton v. Jefferson Cty. Bd. of Ed., 102 F. Supp. 2d 358, 359, 363, 370, 377 (WD Ky. 2000) (Hampton II).

P 5 Id., at 380-381.

Section 5. The Current Lawsuit, 2003 to the Present

P 1 McFarland v. Jefferson Cty. Public Schools, 330 F. Supp. 2d 834 (WD Ky. 2004); [*2842] McFarland v. Jefferson Cty. Public Schools, 416 F.3d 513 (2005); Memorandum from Stephen W. Daeschner, Superintendent, to the Board of Education, Jefferson Cty. Public School Dist., 3-4 (Apr. 2, 2001).


REFERENCES
U.S.C.S., Constitution, Amendment 14

Education Law § 10.01 (Matthew Bender)

L Ed Digest, Civil Rights § 6

L Ed Index, Affirmative Action; Schools and Education

Discrimination in education on basis other than race--Supreme Court cases. 161 L. Ed. 2d 1235.

Racial discrimination, in students' admissions or education, with respect to college, university, or other higher education--Supreme Court cases. 145 L. Ed. 2d 1149.

Supreme Court's views as to propriety of purported remedies for unconstitutional racial segregation of public elementary or secondary schools. 118 L. Ed. 2d 629.

What circumstances render civil case, or issues arising therein, moot so as to preclude Supreme Court's consideration of their merits. 44 L. Ed. 2d 745.

Racial discrimination in education--Supreme Court cases. 24 L. Ed. 2d 765.

Race discrimination--Supreme Court cases. 94 L. Ed. 1121, 96 L. Ed. 1291, 98 L. Ed. 882, 100 L. Ed. 488, 3 L. Ed. 2d 1556, 6 L. Ed. 2d 1302, 10 L. Ed. 2d 1105, 15 L. Ed. 2d 990, 21 L. Ed. 2d 915.