Text - 2007 Supreme Court Reversal of School Integration p.7

[johnkarls]

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, [**590] 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.

[***229] "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 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); [***230] Springfield School Comm. v. Barksdale, 348 F.2d 261, 266 (CA1 1965); [*2814] 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) (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:
[***231] "[T]he 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. 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. [**591] Like [**583] the Texas court, the Ninth Circuit relied upon Swann and North Carolina Bd. of Ed. to reject the argument that [***232] "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). 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 [***233] 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., [*2815] Exec. Order No. 10925, 26 Fed. Reg. 1977 (1961) (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 [***234] 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 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) ("[N]o 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"); [***235] Strauder v. West Virginia, 100 U.S. 303, 306, 25 L. Ed. 664 (1879) ("[The Fourteenth Amendment] [**592] 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 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: [***236] 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 seeks to exclude and that which seeks to include members of minority races.

[*2816] What does the plurality say in response? First, it seeks to distinguish [***237] 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 ____ - ____, 168 L. Ed. 2d, at 588-589. Many school districts in the South adopted segregation remedies (to which Swann clearly applies) without any such federal order, see supra, at ____ - ____, 168 L. Ed. 2d, at 586. 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 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 [***238] view prominently in an important [**593] 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 "dicta" to reasoning with which it disagrees. Rather, it must explain to the courts and to the Nation why [***239] 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 ____ - ____, ____ - ____, n 16, ____ - ____, 168 L. Ed. 2d, at 523, 535, 536-537 (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 ____, n 16, 168 L. Ed. 2d, at 535 (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 [***240] the Court repeated this same statement 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 [*2817] 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. [***241] " Adarand, supra, at 228, 115 S. Ct. [**594] 2097, 132 L. Ed. 2d 158 (internal quotation marks omitted). The Court made clear that "[s]trict scrutiny does not trea[t] 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: [***242]
"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 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." [***243] 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 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 ____ - ____, 168 L. Ed. 2d, at 536-538. 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 [*2818] 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.

[***244] Second, as Grutter specified, "[c]ontext matters when reviewing race-based governmental action under the Equal Protection Clause." 539 U.S., at [**595] 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, 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 [***245] 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 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., [***246] 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' plans reflect efforts to [***247] 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 [*2819] seek to award a scarce commodity on the basis [**596] 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.seattle-schools. [***248] org/area/siso/disprof/2005/ DP05all.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 [***249] carefully to determine the need for race-conscious criteria 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 ____ - ____, 168 L. Ed. 2d, at 547-548 (Thomas, J., concurring); ante, at ____, ____, 168 L. Ed. 2d, at 563, 571-572 (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 ____ - ____, 168 L. Ed. 2d, at 571-572 (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 [***250] of review that is not "strict" in the traditional sense 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 [**597] (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 ____, 168 L. Ed. 2d, at 566-567 ("Executive and legislative branches, which for generations now have considered these types of policies and procedures, should be permitted [*2820] 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., [***251] 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 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" [***252] 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 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 ____, 168 L. Ed. 2d, at 577; Appendix A, infra. See also ante, at ____, 168 L. Ed. 2d, at 572 (opinion of [***253] 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: [**598] an interest in overcoming the adverse educational effects produced by and associated 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).

[*2821] Other studies reach different conclusions. See, e.g., D. Armor, Forced Justice (1995). See also ante, at ____ - ____, 168 L. Ed. 2d, at 549-551 (Thomas, J., concurring). But the evidence supporting an educational interest in racially integrated schools is well [***254] 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 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 [***255] 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 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. [**599] See, e.g., Hallinan 745; Quillian & [***256] 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 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 ____ - ____, 168 L. Ed. 2d, at 554 (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.

[*2822] For example, one study documented that "black and white students in desegregated schools are less racially prejudiced than those in segregated schools," and [***257] 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 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., [***258] 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," 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 [**600] secondary schools are where the education of this Nation's children begins, where each of us begins to absorb those values we carry [***259] 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, 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 [***260] 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 [*2823] 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, 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 ____ - ____, 168 L. Ed. 2d, at 572.

The compelling interest at issue here, then, includes an effort to eradicate the remnants, not of general "societal discrimination," ante, at ____, 168 L. Ed. 2d, at 530 [***261] (plurality opinion), but of primary and secondary school segregation, see supra, at ____, ____, 168 L. Ed. 2d, at 578, 583; 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 ____, ____, 168 L. Ed. 2d, at 523, 524. But the plurality does 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 [**601] desegregation efforts that Attorney General Kennedy many years ago described in his letter to the President? Supra, at ____ - ____, 168 L. Ed. 2d, at 586. How do the educational and civic interests differ in kind from those that [***262] 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 ____, 168 L. Ed. 2d, at 533. 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, 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 [***263] 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 [*2824] 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 suggests with respect to Louisville, ante, at ____, 168 L. Ed. 2d, at 533, 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, [***264] 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 ____, 168 L. Ed. 2d, at 570 (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 [**602] public schools. See ante, at ____ - ____, ____, 168 L. Ed. 2d, at 549-551, 554 (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 [***265] some evidence linking integrated learning environments to increased academic achievement. Cf. ante, at ____ - ____, 168 L. Ed. 2d, at 549-551 (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 "'[w]e 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 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 [***266] 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 band[s]"). 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, [*2825] a 'quota' is a program in which a certain fixed number or proportion of opportunities are 'reserved exclusively for certain minority groups'" (quoting [***267] 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 [**603] 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 [***268] found permissible, even when they set boundaries upon voluntary 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 "[t]he 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").

[***269] 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 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. [***270] 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." Each plan was devised to overcome a history of segregated public [*2826] 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 [**604] 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 [***271] 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 achieve the city's integration goals. See Parts I-A and I-B, supra, at ____ - ____, 168 L. Ed. 2d, at 578-585.

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 [***272] 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 . . . 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"); [***273] 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--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.

[*2827] 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 [**605] in school districts across the Nation, I have discovered many examples of districts that sought integration through [***274] 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 ____, 168 L. Ed. 2d, at 532, Seattle school officials concentrated on diminishing the racial component of their districts' plan, but did not pursue eliminating that element entirely. For the plurality now to insist as it does, ante, at ____ - ____, 168 L. Ed. 2d, at 532-533, 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 [***275] 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 ____ - ____, 168 L. Ed. 2d, at 527-528. 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 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 [***276] 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.