Text - 2007 Supreme Court Reversal of School Integration p.5

[johnkarls]

24 See also Statement of Appellees Opposing Jurisdiction and Motion to Dismiss or Affirm in Davis v. County School Board, O. T. 1952, No. 3, p 5 ("t would be difficult to find from any field of law a legal principle more repeatedly and conclusively decided than the one sought to be raised by appellants"); Brief for Appellees in Davis v. County School Board, O. T. 1953, No. 3, p 46-47 ("If this case were to be decided solely on the basis of precedent, this brief could have been much more limited. There is ample precedent in the decisions of this Court to uphold school segregation"); Brief for Petitioners in Gebhart v. Belton, O. T. 1952, No. 5, p 27 ("Respondents ask this Court to upset a long established and well settled principle recognized by numerous state Legislatures, and Courts, both state and federal, over a long period of years"); Tr. of Oral Arg. in Briggs v. Elliott, O. T. 1953, No. 2, p 79 ("But be that doctrine what it may, somewhere, sometime to every principle comes a moment of repose when it has been so often announced, so confidently relied upon, so long continued, that it passes the limits of judicial discretion and disturbance. . . . We relied on the fact that this Court had not once but seven times, I think it is, pronounced in favor of the separate but equal doctrine. We relied on the fact that the courts of last appeal of some sixteen or eighteen States have passed upon the validity of the separate but equal doctrine vis-a-vis the Fourteenth Amendment. We relied on the fact that Congress has continuously since 1862 segregated its schools in the District of Columbia"); Brief for Appellees in Briggs v. Elliott, O. T. 1952, No. 2, App. D (collecting citations of state and federal cases "[w]hich [e]nunciate the [p]rinciple that [s]tate [l]aws [p]roviding for [r]acial [s]egregation in the [p]ublic [s]chools do not [c]onflict with the Fourteenth Amendment"). Accord, post, at ____, 168 L. Ed. 2d, at 588 ("[T]he Court set forth in Swann a basic principle of constitutional law--a principle of law that has found wide acceptance in the legal culture" (citations and internal quotation marks omitted)); post, at ____, 168 L. Ed. 2d, at 589 ("Lower state and federal courts had considered the matter settled and uncontroversial even before this Court decided Swann"); post, at ____, 168 L. Ed. 2d, at 590 ("Numerous state and federal courts explicitly relied upon Swann's guidance for decades to follow"); post, at ____, 168 L. Ed. 2d, at 591 (stating "how lower courts understood and followed Swann's enunciation of the relevant legal principle"); post, at ____, 168 L. Ed. 2d, at 593 ("The constitutional principle enunciated in Swann, reiterated in subsequent cases, and relied upon over many years, provides, and has widely been thought to provide, authoritative legal guidance"); post, at ____, 168 L. Ed. 2d, at 612 ("[T]oday's opinion will require setting aside the laws of several States and many local communities"); post, at ____, 168 L. Ed. 2d, at 614-615 ("And what has happened to Swann? To McDaniel? To Crawford? To Harris? To School Committee of Boston? To Seattle School Dist. No. 1? After decades of vibrant life, they would all, under the plurality's logic, be written out of the law").


[***143] The similarities between the dissent's arguments and the segregationists' arguments do not stop there. Like the dissent, the segregationists repeatedly cautioned the Court to consider practicalities and not to embrace too theoretical a view of the Fourteenth Amendment.25 And just as [*2786] the dissent argues that the need for these programs will lessen over time, the segregationists claimed that reliance [**560] on segregation was lessening and might eventually end.26

FOOTNOTES

25 Compare Brief for Appellees in Davis v. County School Board, O. T. 1952, No. 3, p 16-17 ("'It is by such practical considerations based on experience rather than by theoretical inconsistencies that the question of equal protection is to be answered'" (quoting Railway Express Agency, Inc. v. New York, 336 U.S. 106, 69 S. Ct. 463, 93 L. Ed. 533 (1949))); Brief for Appellees on Reargument in Davis v. County School Board, O. T. 1953, No. 3, p 76 ("The question is a practical one for them to solve; it is not subject to solution in the theoretical realm of abstract principles"); Tr. of Oral Arg. in Davis v. County School Board, O. T. 1953, No. 4, p 86 ("[Y]ou cannot talk about this problem just in a vacuum in the manner of a law school discussion"), with post, at ____, 168 L. Ed. 2d, at 609 ("The Founders meant the Constitution as a practical document"). [***144]

26 Compare Brief for Kansas on Reargument in Brown v. Board of Education, O. T. 1953, No. 1, p 57 ("[T]he people of Kansas . . . are abandoning the policy of segregation whenever local conditions and local attitudes make it feasible"), Brief for Appellees on Reargument in Davis v. County School Board, O. T. 1953, No. 3, p 76 ("As time passes, it may well be that segregation will end"), with post, at ____, 168 L. Ed. 2d, at 586 ("[T]hey use race-conscious criteria in limited and gradually diminishing ways"); post, at ____, 168 L. Ed. 2d, at 603 ("[E]ach plan's use of race-conscious elements is diminished compared to the use of race in preceding integration plans"); post, at ____, 168 L. Ed. 2d, at 608 (describing the "historically-diminishing use of race" in the school districts).


What was wrong in 1954 cannot be right today.27 Whatever else the Court's rejection of the segregationists' arguments in Brown might have established, it certainly made clear that state and local governments cannot take from the Constitution a right to make decisions on the basis of race by adverse possession. [***145] The fact that state and local governments had been discriminating on the basis of race for a long time was irrelevant to the Brown Court. The fact that racial discrimination was preferable to the relevant communities was irrelevant to the Brown Court. And the fact that the state and local governments had relied on statements in this Court's opinions was irrelevant to the Brown Court. The same principles guide today's decision. None of the considerations trumpeted by the dissent is relevant to the constitutionality of the school boards' race-based plans because no contextual detail--or collection of contextual details, post, at ____ - ____, 168 L. Ed. 2d, at 576-588--can "provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race." Adarand, 515 U.S., at 240, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (Thomas, J., concurring in part and concurring in judgment).28

FOOTNOTES

27 It is no answer to say that these cases can be distinguished from Brown because Brown involved invidious racial classifications whereas the racial classifications here are benign. See post, at ____, 168 L. Ed. 2d, at 612. How does one tell when a racial classification is invidious? The segregationists in Brown argued that their racial classifications were benign, not invidious. See Tr. of Oral Arg. in Briggs v. Elliott, O. T. 1953, No. 2, p 83 ("It [South Carolina] is confident of its good faith and intention to produce equality for all of its children of whatever race or color. It is convinced that the happiness, the progress and the welfare of these children is best promoted in segregated schools"); Brief for Appellees on Reargument in Davis v. County School Board, O. T. 1953, No. 3, p 82-83 ("Our many hours of research and investigation have led only to confirmation of our view that segregation by race in Virginia's public schools at this time not only does not offend the Constitution of the United States but serves to provide a better education for living for the children of both races"); Tr. of Oral Arg. in Davis v. County School Board, O. T. 1952, No. 3, p 71 ("[T]o make such a transition, would undo what we have been doing, and which we propose to continue to do for the uplift and advancement of the education of both races. It would stop this march of progress, this onward sweep"). It is the height of arrogance for Members of this Court to assert blindly that their motives are better than others. [***146]

28 See also id., at 8-9 ("It has been urged that [these state laws and policies] derive validity as a consequence of a long duration supported and made possible by a long line of judicial decisions, including expressions in some of the decisions of this Court. At the same time, it is urged that these laws are valid as a matter of constitutionally permissible social experimentation by the States. On the matter of stare decisis, I submit that the duration of the challenged practice, while it is persuasive, is not controlling. . . . As a matter of social experimentation, the laws in question must satisfy the requirements of the Constitution. While this Court has permitted the States to legislate or otherwise officially act experimentally in the social and economic fields, it has always recognized and held that this power is subject to the limitations of the Constitution, and that the tests of the Constitution must be met"); Reply Brief for Appellants in Briggs v. Elliott, O. T. 1953, No. 2, pp 18-19 ("The truth of the matter is that this is an attempt to place local mores and customs above the high equalitarian principles of our Government as set forth in our Constitution and particularly the Fourteenth Amendment. This entire contention is tantamount to saying that the vindication and enjoyment of constitutional rights recognized by this Court as present and personal can be postponed whenever such postponement is claimed to be socially desirable").


[**561] [***147] [*2787] In place of the color-blind Constitution, the dissent would permit measures to keep the races together and proscribe measures to keep the races apart.29 See post, at ____ - ____, ____ - ____, 168 L. Ed. 2d, at 591-595, 613-614. Although no such distinction is apparent in the Fourteenth Amendment, the dissent would constitutionalize today's faddish social theories that embrace that distinction. The Constitution is not that malleable. Even if current social theories favor classroom racial engineering as necessary to "solve the problems at hand," post, at ____, 168 L. Ed. 2d, at 587, the Constitution enshrines principles independent of social theories. See Plessy, 163 U.S., at 559, 16 S. Ct. 1138, 41 L. Ed. 256 (Harlan, J., dissenting) ("The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time . . . . But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. . . . Our Constitution is color-blind, and neither knows nor tolerates classes among citizens"). Indeed, if our [***148] history has taught us anything, it has taught us to beware of elites bearing racial theories.30 See, e.g., Dred Scott v. Sandford, 60 U.S. 393, 19 How. [*2788] 393, 407, 15 L. Ed. 691 (1857) ("[T]hey [members of the "negro African race"] had no rights which the white man was bound to respect"). [**562] Can we really be sure that the racial theories that motivated Dred Scott and Plessy are a relic of the past or that future theories will be nothing but beneficent and progressive? That is a gamble I am unwilling to take, and it is one the Constitution does not allow.

FOOTNOTES

29 The dissent does not face the complicated questions attending its proposed standard. For example, where does the dissent's principle stop? Can the government force racial mixing against the will of those being mixed? Can the government force black families to relocate to white neighborhoods in the name of bringing the races together? What about historically black colleges, which have "established traditions and programs that might disproportionately appeal to one race or another"? United States v. Fordice, 505 U.S. 717, 749, 112 S. Ct. 2727, 120 L. Ed. 2d 575 (1992) (Thomas, J., concurring). The dissent does not and cannot answer these questions because the contours of the distinction it propounds rest entirely in the eye of the beholder. [***149]

30 Justice Breyer's good intentions, which I do not doubt, have the shelf life of Justice Breyer's tenure. Unlike the dissenters, I am unwilling to delegate my constitutional responsibilities to local school boards and allow them to experiment with race-based decisionmaking on the assumption that their intentions will forever remain as good as Justice Breyer's. See The Federalist No. 51, p 349 (J. Cooke ed. 1961) ("If men were angels, no government would be necessary"). Indeed, the racial theories endorsed by the Seattle school board should cause the dissenters to question whether local school boards should be entrusted with the power to make decisions on the basis of race. The Seattle school district's Website formerly contained the following definition of "cultural racism": "Those aspects of society that overtly and covertly attribute value and normality to white people and whiteness, and devalue, stereotype, and label people of color as 'other,' different, less than, or render them invisible. Examples of these norms include defining white skin tones as nude or flesh colored, having a future time orientation, emphasizing individualism as opposed to a more collective ideology, defining one form of English as standard . . . ." See Harrell, School Web Site Removed: Examples of Racism Sparked Controversy, Seattle Post-Intelligencer, June 2, 2006, p B1. After the site was removed, the district offered the comforting clarification that the site was not intended "'to hold onto unsuccessful concepts such as melting pot or colorblind mentality.'" Ibid.; see also ante, at ____, n 15, 168 L. Ed. 2d, at 529 (plurality opinion). More recently, the school district sent a delegation of high school students to a "White Privilege Conference." See Equity and Race Relations White Privilege Conference, https:// www.seattleschools.org/area/equityandra ... erence.xml. One conference participant described "white privilege" as "an invisible package of unearned assets which I can count on cashing in each day, but about which I was meant to remain oblivious. White Privilege is like an invisible weightless knapsack of special provisions, maps, passports, codebooks, visas, clothes, tools, and blank checks." See White Privilege Conference, Questions and Answers, http://www.uccs.edu/~wpc/faqs.htm; see generally Westneat, School District's Obsessed with Race, Seattle Times, Apr. 1, 2007, p B1 (describing racial issues in Seattle schools).


* [***150] * *

The plans before us base school assignment decisions on students' race. Because "[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens," such race-based decisionmaking is unconstitutional. Plessy, supra, at 559, 16 S. Ct. 1138, 41 L. Ed. 256 (Harlan, J., dissenting). I concur in the Chief Justice's opinion so holding.



Justice Kennedy , concurring in part and concurring in the judgment.

The Nation's schools strive to teach that our strength comes from people of different races, creeds, and cultures uniting in commitment to the freedom of all. In these cases two school districts in different parts of the country seek to teach that principle by having classrooms that reflect the racial makeup of the surrounding community. That the school districts consider these plans to be necessary should remind us our highest aspirations are yet unfulfilled. But the solutions mandated by these school districts must themselves be lawful. To make race matter now so that it might not matter later may entrench the very prejudices we seek to overcome. In my view the state-mandated racial classifications at issue, official labels proclaiming [***151] the race of all persons in a broad class of citizens--elementary school students in one case, high school students in another--are unconstitutional as the cases now come to us.

I agree with The Chief Justice that we have jurisdiction to decide the cases before us and join Parts I and II of the Court's opinion. I also join Parts III-A and III-C for reasons provided below. My views do not allow me to join the balance of the opinion by The Chief Justice, which seems to me to be inconsistent in both its approach and its implications with the history, meaning, and reach of the Equal Protection Clause. Justice Breyer's dissenting opinion, on the other hand, rests on what in my respectful submission is a misuse and mistaken interpretation of our precedents. This leads it to advance propositions that, in my view, are both erroneous and in fundamental conflict with basic equal protection principles. As a consequence, this separate opinion is necessary to set forth my conclusions in the two cases before the Court.

I

The opinion of the Court and Justice Breyer's dissenting opinion (hereinafter [*2789] dissent) describe in detail the history of integration efforts [***152] in Louisville and Seattle. These plans classify individuals by race and allocate benefits [**563] and burdens on that basis; and as a result, they are to be subjected to strict scrutiny. See Johnson v. California, 543 U.S. 499, 505-506, 125 S. Ct. 1141, 160 L. Ed. 2d 949 (2005); ante, at ____, 168 L. Ed. 2d, at 523. The dissent finds that the school districts have identified a compelling interest in increasing diversity, including for the purpose of avoiding racial isolation. See post, at ____ - ____, 168 L. Ed. 2d, at 597-602. The plurality, by contrast, does not acknowledge that the school districts have identified a compelling interest here. See ante, at ____ - ____, 168 L. Ed. 2d, at 526-531. For this reason, among others, I do not join Parts III-B and IV. Diversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue.

It is well established that when a governmental policy is subjected to strict scrutiny, "the government has the burden of proving that racial classifications 'are narrowly tailored measures that further compelling governmental interests.'" [***153] Johnson, supra, at 505, 125 S. Ct. 1141, 160 L. Ed. 2d 949 (quoting Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995)). "Absent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining what classifications are 'benign' or 'remedial' and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics." Richmond v. J. A. Croson Co., 488 U.S. 469, 493, 109 S. Ct. 706, 102 L. Ed. 2d 854 (1989) (plurality opinion). And the inquiry into less restrictive alternatives demanded by the narrow tailoring analysis requires in many cases a thorough understanding of how a plan works. The government bears the burden of justifying its use of individual racial classifications. As part of that burden it must establish, in detail, how decisions based on an individual student's race are made in a challenged governmental program. The Jefferson County Board of Education fails to meet this threshold mandate.

Petitioner Crystal Meredith challenges the district's decision to deny her son Joshua [***154] McDonald a requested transfer for his kindergarten enrollment. The district concedes it denied his request "under the guidelines," which is to say, on the basis of Joshua's race. Brief for Respondents in No. 05-915, p 10; see also App. in No. 05-915, p 97. Yet the district also maintains that the guidelines do not apply to "kindergartens," Brief for Respondents in No. 05-915, at 4, and it fails to explain the discrepancy. Resort to the record, including the parties' Stipulation of Facts, further confuses the matter. See App. in No. 05-915, at 43 ("Transfer applications can be denied because of lack of available space or, for students in grades other than Primary 1 (kindergarten), the racial guidelines in the District's current student assignment plan"); id., at 29 ("The student assignment plan does not apply to . . . students in Primary 1"); see also Stipulation of Facts in No. 3:02-CV-00620-JGH; Doc. 32, Exh. 44, p 6 (2003-04 Jefferson County Public Schools Elementary Student Assignment Application, Section B) ("Assignment is made to a school for Primary 1 (Kindergarten) through Grade Five as long as racial guidelines are maintained. If the Primary 1 (Kindergarten) placement [***155] does not enhance racial balance, a new application must be completed for Primary 2 (Grade One)").

[**564] The discrepancy identified is not some simple and straightforward error that touches only upon the peripheries of the district's use of individual racial classifications. To the contrary, Jefferson County in its briefing has explained how and when it employs these classifications only in [*2790] terms so broad and imprecise that they cannot withstand strict scrutiny. See, e.g., Brief for Respondents in No. 05-915, at 4-10. While it acknowledges that racial classifications are used to make certain assignment decisions, it fails to make clear, for example, who makes the decisions; what if any oversight is employed; the precise circumstances in which an assignment decision will or will not be made on the basis of race; or how it is determined which of two similarly situated children will be subjected to a given race-based decision. See ibid.; see also App. in No. 05-915, at 38, 42 (indicating that decisions are "based on . . . the racial guidelines" without further explanation); id., at 81 (setting forth the blanket mandate that "[s]chools shall work cooperatively with [***156] each other and with central office to ensure that enrollment at all schools [in question] is within the racial guidelines annually and to encourage that the enrollment at all schools progresses toward the midpoint of the guidelines"); id., at 43, 76-77, 81-83; McFarland v. Jefferson Cty. Public Schools, 330 F. Supp. 2d 834, 837-845, 855-862 (WD Ky. 2004).

When litigation, as here, involves a "complex, comprehensive plan that contains multiple strategies for achieving racially integrated schools," Brief for Respondents in No. 05-915, at 4, these ambiguities become all the more problematic in light of the contradictions and confusions that result. Compare, e.g., App. in No. 05-915, at 37 ("Each [Jefferson County] school . . . has a designated geographic attendance area, which is called the 'resides area' of the school[, and each] such school is the 'resides school' for those students whose parent's or guardian's residence address is within the school's geographic attendance area"); id., at 82 ("All elementary students . . . shall be assigned to the school which serves the area in which they reside"); and Brief for Respondents in No. 05-915, at [***157] 5 ("There are no selection criteria for admission to [an elementary school student's] resides school, except attainment of the appropriate age and completion of the previous grade"), with App. in No. 05-915, at 38 ("Decisions to assign students to schools within each cluster are based on available space within the [elementary] schools and the racial guidelines in the District's current student assignment plan"); id., at 82 (acknowledging that a student may not be assigned to his or her resides school if it "has reached . . . the extremes of the racial guidelines").

One can attempt to identify a construction of Jefferson County's student assignment plan that, at least as a logical matter, complies with these competing propositions; but this does not remedy the underlying problem. Jefferson County fails to make clear to this Court--even in the limited respects implicated by Joshua's initial assignment and transfer denial --whether in fact it relies on racial classifications in a manner narrowly tailored to the interest in question, rather than in the far-reaching, inconsistent, and ad hoc manner that a less forgiving reading of the record would suggest. When a court subjects [***158] governmental action to strict scrutiny, [**565] it cannot construe ambiguities in favor of the State.

As for the Seattle case, the school district has gone further in describing the methods and criteria used to determine assignment decisions on the basis of individual racial classifications. See, e.g., Brief for Respondents in No. 05-908, p 5-11. The district, nevertheless, has failed to make an adequate showing in at least one respect. It has failed to explain why, in a district composed of a diversity of races, with fewer than half of the students classified as "white," it has employed the crude racial categories of "white" and [*2791] "non-white" as the basis for its assignment decisions. See, e.g., id., at 1-11.

The district has identified its purposes as follows: "(1) to promote the educational benefits of diverse school enrollments; (2) to reduce the potentially harmful effects of racial isolation by allowing students the opportunity to opt out of racially isolated schools; and (3) to make sure that racially segregated housing patterns did not prevent non-white students from having equitable access to the most popular over-subscribed schools." Id., at 19. Yet the [***159] school district does not explain how, in the context of its diverse student population, a blunt distinction between "white" and "non-white" furthers these goals. As the Court explains, "a school with 50 percent Asian-American students and 50 percent white students but no African-American, Native-American, or Latino students would qualify as balanced, while a school with 30 percent Asian-American, 25 percent African-American, 25 percent Latino, and 20 percent white students would not." Ante, at ____ - ____, 168 L. Ed. 2d, at 525; see also Brief for United States as Amicus Curiae in No. 05-908, pp 13-14. Far from being narrowly tailored to its purposes, this system threatens to defeat its own ends, and the school district has provided no convincing explanation for its design. Other problems are evident in Seattle's system, but there is no need to address them now. As the district fails to account for the classification system it has chosen, despite what appears to be its ill fit, Seattle has not shown its plan to be narrowly tailored to achieve its own ends; and thus it fails to pass strict scrutiny.

II

Our Nation from the inception has sought to preserve and expand the promise of liberty and equality [***160] on which it was founded. Today we enjoy a society that is remarkable in its openness and opportunity. Yet our tradition is to go beyond present achievements, however significant, and to recognize and confront the flaws and injustices that remain. This is especially true when we seek assurance that opportunity is not denied on account of race. The enduring hope is that race should not matter; the reality is that too often it does.

This is by way of preface to my respectful submission that parts of the opinion by The Chief Justice imply an all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account. The plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race. The plurality's postulate that "[t]he 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 541, is not sufficient [**566] to decide these cases. Fifty years of experience since [***161] Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), should teach us that the problem before us defies so easy a solution. School districts can seek to reach Brown's objective of equal educational opportunity. The plurality opinion is at least open to the interpretation that the Constitution requires school districts to ignore the problem of de facto resegregation in schooling. I cannot endorse that conclusion. To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken.

The statement by Justice Harlan that "[o]ur Constitution is color-blind" was most certainly justified in the context of his dissent in [*2792] Plessy v. Ferguson, 163 U.S. 537, 559, 16 S. Ct. 1138, 41 L. Ed. 256 (1896). The Court's decision in that case was a grievous error it took far too long to overrule. Plessy, of course, concerned official classification by race applicable to all persons who sought to use railway carriages. And, as an aspiration, Justice Harlan's axiom must command our assent. [***162] In the real world, it is regrettable to say, it cannot be a universal constitutional principle.

In the administration of public schools by the state and local authorities it is permissible to consider the racial makeup of schools and to adopt general policies to encourage a diverse student body, one aspect of which is its racial composition. Cf. Grutter v. Bollinger, 539 U.S. 306, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (2003); id., at 387-388, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (Kennedy, J., dissenting). If school authorities are concerned that the student-body compositions of certain schools interfere with the objective of offering an equal educational opportunity to all of their students, they are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion solely on the basis of a systematic, individual typing by race.

School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; [***163] allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race. These mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible. See Bush v. Vera, 517 U.S. 952, 958, 116 S. Ct. 1941, 135 L. Ed. 2d 248 (1996) (plurality opinion) ("Strict scrutiny does not apply merely because redistricting is performed with consciousness of race. . . . Electoral district lines are 'facially race neutral' so a more searching inquiry is necessary before strict scrutiny can be found applicable in redistricting cases than in cases of 'classifications based explicitly on race'" (quoting Adarand, 515 U.S., at 213, 115 S. Ct. 2097, 132 L. Ed. 2d 158)). Executive and legislative branches, which for generations now have considered these types of policies and procedures, should be permitted to employ them with candor [**567] and with confidence that a constitutional violation does not occur [***164] whenever a decisionmaker considers the impact a given approach might have on students of different races. Assigning to each student a personal designation according to a crude system of individual racial classifications is quite a different matter; and the legal analysis changes accordingly.

Each respondent has asserted that its assignment of individual students by race is permissible because there is no other way to avoid racial isolation in the school districts. Yet, as explained, each has failed to provide the support necessary for that proposition. Cf. Croson, 488 U.S., at 501, 109 S. Ct. 706, 102 L. Ed. 2d 854 ("The history of racial classifications in this country suggests that blind judicial deference to legislative or executive pronouncements of necessity has no place in equal protection analysis"). And individual racial classifications employed in this manner may be considered legitimate only if they are a last resort to achieve a compelling interest. See id., at 519, 109 S. Ct. 706, 102 L. Ed. 2d 854 (Kennedy, J., concurring in part and concurring in judgment).

In the cases before us it is noteworthy that the number of students whose assignment [***165] depends on express racial classifications is limited. I join Part III-C of the Court's opinion because I agree that in the [*2793] context of these plans, the small number of assignments affected suggests that the schools could have achieved their stated ends through different means. These include the facially race-neutral means set forth above or, if necessary, a more nuanced, individual evaluation of school needs and student characteristics that might include race as a component. The latter approach would be informed by Grutter, though of course the criteria relevant to student placement would differ based on the age of the students, the needs of the parents, and the role of the schools.

III

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

[***166] A

The dissent's reliance on this Court's precedents to justify the explicit, sweeping, classwide racial classifications at issue here is a misreading of our authorities that, it appears to me, tends to undermine well-accepted principles needed to guard our freedom. And in his critique of that analysis, I am in many respects in agreement with The Chief Justice. The conclusions he has set forth in Part III-A of the Court's opinion are correct, in my view, because the compelling interests implicated in the cases before us are distinct from the interests the Court has recognized in remedying the effects of past intentional discrimination and in increasing diversity in higher education. See ante, at ____ - ____, 168 L. Ed. 2d, at 523. As the Court notes, we recognized the compelling nature of the interest in remedying past intentional discrimination in Freeman v. [**568] Pitts, 503 U.S. 467, 494, 112 S. Ct. 1430, 118 L. Ed. 2d 108 (1992), and of the interest in diversity in higher education in Grutter. At the same time, these compelling interests, in my view, do help inform the present inquiry. And to the extent the plurality opinion can be interpreted to foreclose consideration of [***167] these interests, I disagree with that reasoning.

As to the dissent, the general conclusions upon which it relies have no principled limit and would result in the broad acceptance of governmental racial classifications in areas far afield from schooling. The dissent's permissive strict scrutiny (which bears more than a passing resemblance to rational-basis review) could invite widespread governmental deployment of racial classifications. There is every reason to think that, if the dissent's rationale were accepted, Congress, assuming an otherwise proper exercise of its spending authority or commerce power, could mandate either the Seattle or the Jefferson County plans nationwide. There seems to be no principled rule, moreover, to limit the dissent's rationale to the context of public schools. The dissent emphasizes local control, see post, at ____ - ____, 168 L. Ed. 2d, at 603-604, the unique history of school desegregation, see post, at ____, 168 L. Ed. 2d, at 576, and the fact that these plans make less use of race than prior plans, see post, at ____, 168 L. Ed. 2d, at 609, but these factors seem more rhetorical than integral to the analytical structure of the opinion.

This brings us to the dissent's reliance on the Court's opinions in [***168] Gratz v. Bollinger, 539 U.S. 244, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (2003), and Grutter, 539 U.S. 306, 123 S. Ct. 2325, 156 L. Ed. 2d 304. If [*2794] today's dissent said it was adhering to the views expressed in the separate opinions in Gratz and Grutter, see Gratz, 539 U.S., at 281, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (Breyer, J., concurring in judgment); id., at 282, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (Stevens, J., dissenting); id., at 291, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (Souter, J., dissenting); id., at 298, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (Ginsburg, J., dissenting); Grutter, supra, at 344, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (Ginsburg, J., concurring), that would be understandable, and likely within the tradition--to be invoked, in my view, in rare instances--that permits us to maintain our own positions in the face of stare decisis when fundamental points of doctrine are at stake. See, e.g., [***169] Federal Maritime Comm'n v. South Carolina Ports Authority, 535 U.S. 743, 770, 122 S. Ct. 1864, 152 L. Ed. 2d 962 (2002) (Stevens, J., dissenting). To say, however, that we must ratify the racial classifications here at issue based on the majority opinions in Gratz and Grutter is, with all respect, simply baffling.

Gratz involved a system where race was not the entire classification. The procedures in Gratz placed much less reliance on race than do the plans at issue here. The issue in Gratz arose, moreover, in the context of college admissions where students had other choices and precedent supported the proposition that First Amendment interests give universities particular latitude in defining diversity. See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 312-314, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978) (opinion of Powell, J.). Even so the race factor was found to be invalid. Gratz, supra, at 251, 123 S. Ct. 2411, 156 L. Ed. 2d 257. If Gratz is to be the measure, the racial classification systems here are [**569] a fortiori invalid. If the dissent were to [***170] say that college cases are simply not applicable to public school systems in kindergarten through high school, this would seem to me wrong, but at least an arguable distinction. Under no fair reading, though, can the majority opinion in Gratz be cited as authority to sustain the racial classifications under consideration here.

The same must be said for the controlling opinion in Grutter. There the Court sustained a system that, it found, was flexible enough to take into account "all pertinent elements of diversity," 539 U.S., at 341, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (internal quotation marks omitted), and considered race as only one factor among many, id., at 340, 123 S. Ct. 2325, 156 L. Ed. 2d 304. Seattle's plan, by contrast, relies upon a mechanical formula that has denied hundreds of students their preferred schools on the basis of three rigid criteria: placement of siblings, distance from schools, and race. If those students were considered for a whole range of their talents and school needs with race as just one consideration, Grutter would have some application. That, though, is not the case. The only support today's dissent can draw [***171] from Grutter must be found in its various separate opinions, not in the opinion filed for the Court.

B

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

In the immediate aftermath of Brown the Court addressed other instances where laws and practices enforced de jure segregation. See, e.g., Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967) (marriage); [*2795] New Orleans City Park Improv. Ass'n v. Detiege, 358 U.S. 54, 79 S. Ct. 99, 3 L. Ed. 2d 46 (1958) (per curiam) (public parks); Gayle v. Browder, 352 U.S. 903, 77 S. Ct. 145, 1 L. Ed. 2d 114 (1956) (per curiam) (buses); [***172] Holmes v. Atlanta, 350 U.S. 879, 76 S. Ct. 141, 100 L. Ed. 776 (1955) (per curiam) (golf courses); Mayor of Baltimore v. Dawson, 350 U.S. 877, 76 S. Ct. 133, 100 L. Ed. 774 (1955) (per curiam) (beaches). But with reference to schools, the effect of the legal wrong proved most difficult to correct. To remedy the wrong, school districts that had been segregated by law had no choice, whether under court supervision or pursuant to voluntary desegregation efforts, but to resort to extraordinary measures including individual student and teacher assignment to schools based on race. See, e.g., Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 8-10, 91 S. Ct. 1267, 28 L. Ed. 2d 554 (1971); see also Croson, 488 U.S., at 519, 109 S. Ct. 706, 102 L. Ed. 2d 854 (Kennedy, J., concurring in part and concurring in judgment) (noting that racial classifications "may be the only adequate remedy after a judicial determination that a State or its instrumentality has violated the Equal Protection Clause"). So it was, as the dissent observes, see post, at ____ - ____, 168 L. Ed. 2d, at 582-583, that Louisville [***173] classified children by race in its school assignment and busing plan in the 1970's.

Our cases recognized a fundamental [**570] difference between those school districts that had engaged in de jure segregation and those whose segregation was the result of other factors. School districts that had engaged in de jure segregation had an affirmative constitutional duty to desegregate; those that were de facto segregated did not. Compare Green v. County School Bd., 391 U.S. 430, 437-438, 88 S. Ct. 1689, 20 L. Ed. 2d 716 (1968), with Milliken v. Bradley, 418 U.S. 717, 745, 94 S. Ct. 3112, 41 L. Ed. 2d 1069 (1974). The distinctions between de jure and de facto segregation extended to the remedies available to governmental units in addition to the courts. For example, in Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 274, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (1986), the plurality noted: "This Court never has held that societal discrimination alone is sufficient to justify a racial classification. Rather, the Court has insisted upon some showing of prior discrimination by the governmental unit involved before allowing [***174] limited use of racial classifications in order to remedy such discrimination." The Court's decision in Croson, supra, reinforced the difference between the remedies available to redress de facto and de jure discrimination:
"To accept [a] claim that past societal discrimination alone can serve as the basis for rigid racial preferences would be to open the door to competing claims for 'remedial relief' for every disadvantaged group. The dream of a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs." Id., at 505-506, 109 S. Ct. 706, 102 L. Ed. 2d 854.


From the standpoint of the victim, it is true, an injury stemming from racial prejudice can hurt as much when the demeaning treatment based on race identity stems from bias masked deep within the social order as when it is imposed by law. The distinction between government and private action, furthermore, can be amorphous both as a historical matter and as a matter of present-day finding of fact. Laws arise from a culture and [***175] vice versa. Neither can assign to the other all responsibility for persisting injustices.

Yet, like so many other legal categories that can overlap in some instances, the constitutional distinction between de jure and de facto segregation has been thought [*2796] to be an important one. It must be conceded its primary function in school cases was to delimit the powers of the Judiciary in the fashioning of remedies. See, e.g., Milliken, supra, at 746, 94 S. Ct. 3112, 41 L. Ed. 2d 1069. The distinction ought not to be altogether disregarded, however, when we come to that most sensitive of all racial issues, an attempt by the government to treat whole classes of persons differently based on the government's systematic classification of each individual by race. There, too, the distinction serves as a limit on the exercise of a power that reaches to the very verge of constitutional authority. Reduction of an individual to an assigned racial identity for differential treatment is among the most pernicious actions our government can undertake. The allocation of governmental burdens and benefits, contentious under any circumstances, is even more divisive when allocations [***176] are made on the basis of individual racial [**571] classifications. See, e.g., Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978); Adarand, 515 U.S. 200, 115 S. Ct. 2097, 132 L. Ed. 2d 158.

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

The cases here were argued upon the assumption, and come to [***177] us on the premise, that the discrimination in question did not result from de jure actions. And when de facto discrimination is at issue our tradition has been that the remedial rules are different. The State must seek alternatives to the classification and differential treatment of individuals by race, at least absent some extraordinary showing not present here.

C

The dissent refers to an opinion filed by Judge Kozinski in one of the cases now before us, and that opinion relied upon an opinion filed by Chief Judge Boudin in a case presenting an issue similar to the one here. See post, at ____, 168 L. Ed. 2d, at 596 (citing 426 F.3d 1162, 1193-1196 (CA9 2005) (concurring opinion) (citing Comfort v. Lynn School Comm., 418 F.3d 1, 27-29 (CA1 2005) (Boudin, C. J., concurring))). Though this may oversimplify the matter a bit, one of the main concerns underlying those opinions was this: If it is legitimate for school authorities to work to avoid racial isolation in their schools, must they do so only by indirection and general policies? Does the Constitution mandate this inefficient result? Why may the authorities not recognize the problem in candid fashion and solve [***178] it altogether through resort to direct assignments based on student racial classifications? So, the argument proceeds, if race is the problem, then perhaps race is the solution.

The argument ignores the dangers presented by individual classifications, dangers that are not as pressing when the same ends are achieved by more indirect means. When the government classifies an individual by race, it must first define what it means to be of a race. Who exactly [*2797] is white and who is nonwhite? To be forced to live under a state-mandated racial label is inconsistent with the dignity of individuals in our society. And it is a label that an individual is powerless to change. Governmental classifications that command people to march in different directions based on racial typologies can cause a new divisiveness. The practice can lead to corrosive discourse, where race serves not as an element of our diverse heritage but instead as a bargaining chip in the political process. On the other hand race-conscious measures that do not rely on differential treatment based on individual classifications present these problems to a lesser degree.

[**572] The idea that if race is the problem, race is the [***179] instrument with which to solve it cannot be accepted as an analytical leap forward. And if this is a frustrating duality of the Equal Protection Clause it simply reflects the duality of our history and our attempts to promote freedom in a world that sometimes seems set against it. Under our Constitution the individual, child or adult, can find his own identity, can define her own persona, without state intervention that classifies on the basis of his race or the color of her skin.

* * *

This Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children. A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue. Likewise, a district may consider it a compelling interest to achieve a diverse student population. Race may be one component of that diversity, but other demographic factors, plus special talents and needs, should also be considered. What the government is not permitted to do, absent a showing of necessity not made here, is to classify every student [***180] on the basis of race and to assign each of them to schools based on that classification. Crude measures of this sort threaten to reduce children to racial chits valued and traded according to one school's supply and another's demand.

That statement, to be sure, invites this response: A sense of stigma may already become the fate of those separated out by circumstances beyond their immediate control. But to this the replication must be: Even so, measures other than differential treatment based on racial typing of individuals first must be exhausted.

The decision today should not prevent school districts from continuing the important work of bringing together students of different racial, ethnic, and economic backgrounds. Due to a variety of factors--some influenced by government, some not--neighborhoods in our communities do not reflect the diversity of our Nation as a whole. Those entrusted with directing our public schools can bring to bear the creativity of experts, parents, administrators, and other concerned citizens to find a way to achieve the compelling interests they face without resorting to widespread governmental allocation of benefits and burdens on the basis of racial [***181] classifications.

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

DISSENT BY: STEVENS; BREYER


DISSENT


Justice Stevens , dissenting.

While I join Justice Breyer 's eloquent and unanswerable dissent in its entirety, it is appropriate to add these words.

There is a cruel irony in The Chief Justice's reliance on our decision in Brown v. Board of Education, 349 U.S. 294, 75 S. Ct. 753, 99 L. Ed. 1083, 71 Ohio Law Abs. 584 (1955). The first sentence in the concluding paragraph of his opinion states: "Before [*2798] Brown, schoolchildren were told where they could and could not go to school based on the color of their skin." Ante, at ____, 168 L. Ed. 2d, at 541. This sentence reminds me of Anatole France's observation: "[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, [**573] and to steal their bread."1The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. [***182] 2 In this and other ways, The Chief Justice rewrites the history of one of this Court's most important decisions. Compare ante, at ____, 168 L. Ed. 2d, at 515 ("history will be heard"), with Brewer v. Quarterman, 550 U.S. , , 550 U.S. 286, 127 S. Ct. 1706, 167 L. Ed. 2d 622 (2007) (slip op., at 11 ) (Roberts, C. J., dissenting) ("It is a familiar adage that history is written by the victors").

FOOTNOTES

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

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