Text - 2007 Supreme Court Reversal of School Integration p.3

[johnkarls]

IV

Justice Breyer's dissent takes a different approach to these cases, one that fails to ground the result it would reach in law. Instead, it selectively relies on inapplicable precedent and even dicta while dismissing contrary holdings, alters and misapplies our well-established legal framework for assessing equal protection challenges to express racial classifications, and greatly exaggerates the consequences [***67] of today's decision.

To begin with, Justice Breyer seeks to justify the plans at issue under our precedents recognizing the compelling interest in remedying past intentional discrimination. See post, at ____ - ____, 168 L. Ed. 2d, at 585-589. Not even the school districts go this far, and for good reason. The distinction between segregation by state action and racial imbalance caused by other factors has been central to our jurisprudence in this area for generations. See, e.g., Milliken, 433 U.S., at 280, n. 14, 97 S. Ct. 2749, 53 L. Ed. 2d 745; Freeman, 503 U.S., at 495-496, 112 S. Ct. 1430, 118 L. Ed. 2d 108 ("Where resegregation is a product not of state action but of private choices, it does not have constitutional implications"). The dissent elides this distinction between de jure and de facto segregation, casually intimates that Seattle's school attendance patterns reflect illegal segregation, post, at ____, ____, ____, 168 L. Ed. 2d, at 577, 585, 588,15 and fails to credit the judicial determination --under the most rigorous standard--that Jefferson County had eliminated the vestiges of prior segregation. The dissent thus alters in fundamental ways not only the facts presented here but the [***68] established law.

FOOTNOTES

15 Justice Breyer makes much of the fact that in 1978 Seattle "settled" an NAACP complaint alleging illegal segregation with the federal Office for Civil Rights (OCR). See post, at ____, ____ - ____, ____, ____, 168 L. Ed. 2d, at 577, 579-580, 585, 588. The memorandum of agreement between Seattle and OCR, of course, contains no admission by Seattle that such segregation ever existed or was ongoing at the time of the agreement, and simply reflects a "desire to avoid the incovenience [sic] and expense of a formal OCR investigation," which OCR was obligated under law to initiate upon the filing of such a complaint. Memorandum of Agreement between Seattle School District No. 1 of King County, Washington, and the Office for Civil Rights, United States Department of Health, Education, and Welfare 2 (June 9, 1978); see also 45 CFR § 80.7(c) (2006).


Justice Breyer's reliance on [***69] McDaniel v. Barresi, 402 U.S. 39, 91 S. Ct. 1287, 28 L. Ed. 2d 582 (1971), post, at ____ - ____, ____ - ____, 168 L. Ed. 2d, at 588-589, 592, highlights how far removed the discussion in the dissent is from the question actually presented in these cases. McDaniel concerned a Georgia school system that had been segregated by law. There was no doubt that the county had operated a "dual school system," McDaniel, supra, at 41, 91 S. Ct. 1287, 28 L. Ed. 2d 582, and no one questions that the obligation to disestablish a school system segregated by law can include race-conscious remedies--whether or not a court had issued an order to that effect. See supra, at ____, 168 L. Ed. 2d, at 523. The present cases are before us, however, because the Seattle school district was never segregated by law, and the Jefferson County district has been found to be [**534] unitary, having eliminated the vestiges of its prior dual status. The justification for race-conscious remedies in McDaniel is therefore not applicable here. The dissent's persistent refusal to accept this distinction--its insistence on viewing the racial classifications here as if they were just like the ones in McDaniel, "devised to overcome [***70] a history of segregated public schools," post, at ____, 168 L. Ed. 2d, at 603--explains its inability to understand why the remedial justification for racial classifications cannot decide these cases.

[*2762] Justice Breyer's dissent next relies heavily on dicta from Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S., at 16, 91 S. Ct. 1267, 28 L. Ed. 2d 554 --far more heavily than the school districts themselves. Compare post, at ____, ____ - ____, 168 L. Ed. 2d, at 576, 588-592, with Brief for Respondents in No. 05-908, at 19-20; Brief for Respondents in No. 05-915, at 31. The dissent acknowledges that the two-sentence discussion in Swann was pure dicta, post, at ____, 168 L. Ed. 2d, at 588, but nonetheless asserts that it demonstrates a "basic principle of constitutional law" that provides "authoritative legal guidance." Post, at ____, ____, 168 L. Ed. 2d, at 588, 593. Initially, as the Court explained just last Term, "we are not bound to follow our dicta in a prior case in which the point now at issue was not fully debated." Central Va. Community College v. Katz, 546 U.S. 356, 363, 126 S. Ct. 990, 163 L. Ed. 2d 945 (2006). That is particularly true given that, when Swann was decided, this Court had not yet confirmed that strict scrutiny [***71] applies to racial classifications like those before us. See n 16, infra. There is nothing "technical" or "theoretical," post, at ____, 168 L. Ed. 2d, at 593, about our approach to such dicta. See, e.g., Cohens v. Virginia, 19 U.S. 264, 6 Wheat. 264, 399-400, 5 L. Ed. 257 (1821) (Marshall, C. J.) (explaining why dicta is not binding).

Justice Breyer would not only put such extraordinary weight on admitted dicta, but relies on the statement for something it does not remotely say. Swann addresses only a possible state objective; it says nothing of the permissible means--race conscious or otherwise--that a school district might employ to achieve that objective. The reason for this omission is clear enough, since the case did not involve any voluntary means adopted by a school district. The dissent's characterization of Swann as recognizing that "the Equal Protection Clause permits local school boards to use race-conscious criteria to achieve positive race-related goals" is--at best--a dubious inference. Post, at ____, 168 L. Ed. 2d, at 588. Even if the dicta from Swann were entitled to the weight the dissent would give it, and no dicta is, [***72] it not only did not address the question presented in Swann, it also does not address the question presented in these cases--whether the school districts' use of racial classifications to achieve their stated goals is permissible.

Further, for all the lower court cases Justice Breyer cites as evidence of the "prevailing legal assumption" embodied by Swann, very few are pertinent. Most are not. For example, the dissent features Tometz v. Board of Ed., Waukegan City School Dist. No. 61, 39 Ill. 2d 593, 596-598, 237 N.E.2d 498, 500-502 (1968), an Illinois decision, as evidence that "state and federal courts had considered the matter settled and uncontroversial." Post, at ____, 168 L. Ed. 2d, at 589. [**535] But Tometz addressed a challenge to a statute requiring race-con sciousness in drawing school attendance boundaries--an issue well beyond the scope of the question presented in these cases. Importantly, it considered that issue only under rational-basis review, 39 Ill. 2d, at 600, 237 N. E. 2d, at 502 ("The test of any legislative classification essentially is one of reasonableness"), which even the dissent grudgingly recognizes is an improper standard [***73] for evaluating express racial classifications. Other cases cited are similarly inapplicable. See, e.g., Citizens for Better Ed. v. Goose Creek Consol. Independent School Dist., 719 S.W.2d 350, 352-353 (Tex. App. 1986) (upholding rezoning plan under rational-basis review).16

FOOTNOTES

16 In fact, all the cases Justice Breyer's dissent cites as evidence of the "prevailing legal assumption," see post, at ____ - ____, 168 L. Ed. 2d, at 589-591, were decided before this Court definitively determined that "all racial classifications . . . must be analyzed by a reviewing court under strict scrutiny." Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995). Many proceeded under the now-rejected view that classifications seeking to benefit a disadvantaged racial group should be held to a lesser standard of review. See, e.g., Springfield School Comm. v. Barksdale, 348 F.2d 261, 266 (CA1 1965). Even if this purported distinction, which Justice Stevens would adopt, post, at ____, n 3, 168 L. Ed. 2d, at 573 (dissenting opinion), had not been already rejected by this Court, the distinction has no relevance to these cases, in which students of all races are excluded from the schools they wish to attend based solely on the racial classifications. See, e.g., App. in No. 05-908, at 202a (noting that 89 nonwhite students were denied assignment to a particular school by operation of Seattle's racial tiebreaker). Justice Stevens's reliance on School Comm. of Boston v. Board of Ed., 352 Mass. 693, 227 N.E.2d 729 (1967), appeal dism'd, 389 U.S. 572, 88 S. Ct. 692, 19 L. Ed. 2d 778 (1968) (per curiam), post, at ____ - ____, 168 L. Ed. 2d, at 574-575, is inapposite for the same reason that many of the cases cited by Justice Breyer are inapposite; the case involved a Massachusetts law that required school districts to avoid racial imbalance in schools but did not specify how to achieve this goal--and certainly did not require express racial classifications as the means to do so. The law was upheld under rational-basis review, with the state court explicitly rejecting the suggestion--which is now plainly the law--that "racial group classifications bear a far heavier burden of justification." 352 Mass., at 700, 227 N. E. 2d, at 734 (internal quotation marks and citation omitted). The passage Justice Stevens quotes proves our point; all the quoted language says is that the school committee "shall prepare a plan to eliminate the imbalance." Id., at 695, 227 N. E. 2d, at 731; see post, at ____, n 5, 168 L. Ed. 2d, at 574. Nothing in the opinion approves use of racial classifications as the means to address the imbalance. The suggestion that our decision today is somehow inconsistent with our disposition of that appeal is belied by the fact that neither the lower courts, the respondent school districts, nor any of their 51 amici saw fit even to cite the case. We raise this fact not to argue that the dismissal should be afforded any different stare decisis effect, but rather simply to suggest that perhaps--for the reasons noted above--the dismissal does not mean what Justice Stevens believes it does.


[***74] [*2763] Justice Breyer's dissent next looks for authority to a footnote in Washington v. Seattle School Dist. No. 1, 458 U.S. 457, 472, n. 15, 102 S. Ct. 3187, 73 L. Ed. 2d 896 (1982), post, at ____ - ____, 168 L. Ed. 2d, at 609, but there this Court expressly noted that it was not passing on the propriety of race-conscious student assignments in the absence of a finding of de jure segregation. Similarly, the citation of Crawford v. Board of Ed. of Los Angeles, 458 U.S. 527, 102 S. Ct. 3211, 73 L. Ed. 2d 948 (1982), post, at ____, 168 L. Ed. 2d, at 589, in which a state referendum prohibiting a race-based assignment plan was challenged, is inapposite--in Crawford the Court again expressly reserved the question presented by these cases. 458 U.S., at 535, n. 11, 102 S. Ct. 3211, 73 L. Ed. 2d 948. Such reservations and preliminary analyses of course did not decide the merits of this question--as evidenced [**536] by the disagreement among the lower courts on this issue. Compare Eisenberg, 197 F.3d at 133, with [***75] Comfort, 418 F.3d at 13.

Justice Breyer's dissent also asserts that these cases are controlled by Grutter, claiming that the existence of a compelling interest in these cases "follows a fortiori" from Grutter, post, at ____, ____ - ____, 168 L. Ed. 2d, at 599, 613-615, and accusing us of tacitly overruling that case, see post, at ____ - ____, 168 L. Ed. 2d, at 613-615. The dissent overreads Grutter, however, in suggesting that it renders pure racial balancing a constitutionally compelling interest; Grutter itself recognized that using race simply to achieve racial balance would be "patently unconstitutional," 539 U.S., at 330, 123 S. Ct. 2325, 156 L. Ed. 2d 304. The Court was exceedingly careful in describing the interest furthered in Grutter as "not an interest in simple ethnic diversity" but rather a "far broader array of qualifications and characteristics" in which race was but a single element. 539 U.S., at 324-325, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (internal [*2764] quotation marks omitted). We take the Grutter Court at its word. We simply do not understand how Justice Breyer can maintain that classifying every schoolchild as black or white, and using that classification as a [***76] determinative factor in assigning children to achieve pure racial balance, can be regarded as "less burdensome, and hence more narrowly tailored" than the consideration of race in Grutter, post, at ____, 168 L. Ed. 2d, at 603, when the Court in Grutter stated that "[t]he importance of . . . individualized consideration" in the program was "paramount," and consideration of race was one factor in a "highly individualized, holistic review." 539 U.S., at 337, 123 S. Ct. 2325, 156 L. Ed. 2d 304. Certainly if the constitutionality of the stark use of race in these cases were as established as the dissent would have it, there would have been no need for the extensive analysis undertaken in Grutter. In light of the foregoing, Justice Breyer's appeal to stare decisis rings particularly hollow. See post, at ____ - ____, 168 L. Ed. 2d, at 614-615.

At the same time it relies on inapplicable desegregation cases, misstatements of admitted dicta, and other noncontrolling pronouncements, Justice Breyer's dissent candidly dismisses the significance of this Court's repeated holdings that all racial classifications must be reviewed under strict scrutiny, see post, at ____ - ____, ____ - ____, 168 L. Ed. 2d, at 593-595, 596, arguing that a different standard [***77] of review should be applied because the districts use race for beneficent rather than malicious purposes, see post, at ____ - ____, 168 L. Ed. 2d, at 593-597.

This Court has recently reiterated, however, that "'all racial classifications [imposed by government] . . . must be analyzed by a reviewing court under strict scrutiny.'" Johnson, 543 U.S., at 505, 125 S. Ct. 1141, 160 L. Ed. 2d 949 (quoting Adarand, 515 U.S., at 227, 115 S. Ct. 2097, 132 L. Ed. 2d 158; emphasis added by Johnson Court). See also Grutter, supra, at 326, 123 S. Ct. 2325, 156 L. Ed. 2d 304 ("[G]overnmental action based on race--a group classification long recognized as in most circumstances irrelevant and therefore prohibited--should be subjected to detailed judicial inquiry" (internal quotation marks and emphasis omitted)). Justice Breyer nonetheless relies on the good intentions and motives [**537] of the school districts, stating that he has found "no case that . . . repudiated this constitutional asymmetry between that which seeks to exclude and that which seeks to include members of minority races." Post, at ____, 168 L. Ed. 2d, at 592 (emphasis in original). [***78] We have found many. Our cases clearly reject the argument that motives affect the strict scrutiny analysis. See Johnson, supra, at 505, 125 S. Ct. 1141, 160 L. Ed. 2d 949 ("We have insisted on strict scrutiny in every context, even for so-called 'benign' racial classifications"); Adarand, 515 U.S., at 227, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (rejecting idea that "'benign'" racial classifications may be held to "different standard"); Croson, 488 U.S., at 500, 109 S. Ct. 76, 102 L. Ed. 2d 854 ("Racial classifications are suspect, and that means that simple legislative assurances of good intention cannot suffice").

This argument that different rules should govern racial classifications designed to include rather than exclude is not new; it has been repeatedly pressed in the past, see, e.g., Gratz, 539 U.S., at 282, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (Breyer, J., concurring in judgment); id., at 301, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (Ginsburg, J., dissenting); [***79] Adarand, supra, at 243, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (Stevens, J., dissenting); Wygant, 476 U.S., at 316-317, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (Stevens, J., dissenting), and has been repeatedly rejected. See also Bakke, 438 U.S., at 289-291, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (opinion of Powell, J.) (rejecting argument that strict scrutiny should be applied only to classifications that disadvantage minorities, stating "[r]acial and ethnic distinctions of any sort are inherently [*2765] suspect and thus call for the most exacting judicial examination").

The reasons for rejecting a motives test for racial classifications are clear enough. "The Court's emphasis on 'benign racial classifications' suggests confidence in its ability to distinguish good from harmful governmental uses of racial criteria. History should teach greater humility. . . . 'enign' carries with it no independent meaning, but reflects only acceptance of the current generation's conclusion that a politically acceptable burden, imposed on particular citizens on the basis of race, is reasonable." [***80] Metro Broadcasting, 497 U.S., at 609-610, 110 S. Ct. 2997, 111 L. Ed. 2d 445 (O'Connor, J., dissenting). See also Adarand, supra, at 226, 115 S. Ct. 2097, 132 L. Ed. 2d 158 ("'t may not always be clear that a so-called preference is in fact benign'" (quoting Bakke, supra, at 298, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (opinion of Powell, J.))). Accepting Justice Breyer's approach would "do no more than move us from 'separate but equal' to 'unequal but benign.'" Metro Broadcasting, supra, at 638, 110 S. Ct. 2997, 111 L. Ed. 2d 445 (Kennedy, J., dissenting).

Justice Breyer speaks of bringing "the races" together (putting aside the purely black-and-white nature of the plans), as the justification for excluding individuals on the basis of their race. See post, at ____ - ____, 168 L. Ed. 2d, at 591-592. Again, this approach to racial classifications is fundamentally at odds with our precedent, which makes clear that the Equal Protection Clause "protect[s] persons, not groups," [***81] Adarand, 515 U.S., at 227, 110 S. Ct. 2997, 111 L. Ed. 2d 445 (emphasis in original). See ibid. ("[A]ll governmental action based on race--a group classification [**538] long recognized as 'in most circumstances irrelevant and therefore prohibited,' Hirabayashi [v. United States, 320 U.S. 81, 100, 63 S. Ct. 1375, 87 L. Ed. 1774 (1943)] --should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed" (first emphasis in original); Metro Broadcasting, supra, at 636, 110 S. Ct. 2997, 111 L. Ed. 2d 445 ("[O]ur Constitution protects each citizen as an individual, not as a member of a group" (Kennedy, J., dissenting)); Bakke, supra, at 289, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (opinion of Powell, J.) (Fourteenth Amendment creates rights "guaranteed to the individual. The rights established are personal rights"). This fundamental principle goes back, in this context, to Brown itself. See [***82] Brown v. Board of Education, 349 U.S. 294, 300, 75 S. Ct. 753, 99 L. Ed. 1083, 71 Ohio Law Abs. 584 (1955) (Brown II) ("At stake is the personal interest of the plaintiffs in admission to public schools . . . on a nondiscriminatory basis" (emphasis added)). For the dissent, in contrast, "'individualized scrutiny' is simply beside the point." Post, at ____, 168 L. Ed. 2d, at 608.

Justice Breyer's position comes down to a familiar claim: The end justifies the means. He admits that "there is a cost in applying 'a state-mandated racial label,'" post, at ____, 168 L. Ed. 2d, at 615, but he is confident that the cost is worth paying. Our established strict scrutiny test for racial classifications, however, insists on "detailed examination, both as to ends and as to means." Adarand, supra, at 236, 110 S. Ct. 2997, 111 L. Ed. 2d 445 (emphasis added). Simply because the school districts may seek a worthy goal does not mean they are free to discriminate on the basis of race to achieve it, or that their racial classifications should be subject to less exacting scrutiny.

Despite his argument that these cases should be evaluated under a "standard of review that is not 'strict' in the [***83] traditional sense of that word," post, at ____, 168 L. Ed. 2d, at 596, Justice Breyer still purports to apply strict scrutiny to these cases. See post, at ____, 168 L. Ed. 2d, at 597. It is evident, however, that Justice Breyer's brand of narrow tailoring is quite unlike anything found in our precedents. [*2766] Without any detailed discussion of the operation of the plans, the students who are affected, or the districts' failure to consider race-neutral alternatives, the dissent concludes that the districts have shown that these racial classifications are necessary to achieve the districts' stated goals. This conclusion is divorced from any evaluation of the actual impact of the plans at issue in these cases--other than to note that the plans "often have no effect." Post, at ____, 168 L. Ed. 2d, at 602.17 Instead, the dissent suggests that some combination of the development of these plans over time, the difficulty of the endeavor, and the good faith of the districts suffices to demonstrate that these stark and controlling racial [**539] classifications are constitutional. The Constitution and our precedents require more.

FOOTNOTES

17 Justice Breyer also tries to downplay the impact of the racial assignments by stating that in Seattle "students can decide voluntarily to transfer to a preferred district high school (without any consideration of race-conscious criteria)." Post, at ____, 168 L. Ed. 2d, at 602. This presumably refers to the district's decision to cease, for 2001-2002 school year assignments, applying the racial tiebreaker to students seeking to transfer to a different school after ninth grade. See App. in No. 05-908, at 137a-139a. There are obvious disincentives for students to transfer to a different school after a full quarter of their high school experience has passed, and the record sheds no light on how transfers to the oversubscribed high schools are handled.


[***84] In keeping with his view that strict scrutiny should not apply, Justice Breyer repeatedly urges deference to local school boards on these issues. See, e.g., post, at ____, ____ - ____, ____, 168 L. Ed. 2d, at 587, 603-604, 614-615. Such deference "is fundamentally at odds with our equal protection jurisprudence. We put the burden on state actors to demonstrate that their race-based policies are justified." Johnson, 543 U.S., at 506, n. 1, 125 S. Ct 1141, 160 L. Ed. See Croson, 488 U.S., at 501, 109 S. Ct. 706, 102 L. Ed. 2d 854 ("The history of racial classifications in this country suggests that blind judicial deference to legislative or executive pronouncements of necessity has no place in equal protection analysis"); West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 637, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943) ("The Fourteenth Amendment . . . protects the citizen against the State itself and all of its creatures--Boards of Education not excepted").

Justice Breyer's dissent ends on an unjustified note of alarm. It predicts that today's decision "threaten[s]" the validity of "[h]undreds of state and federal statutes and regulations." [***85] Post, at ____, 168 L. Ed. 2d, at 611; see also post, at ____ - ____, 168 L. Ed. 2d, at 591-592. But the examples the dissent mentions--for example, a provision of the No Child Left Behind Act that requires States to set measurable objectives to track the achievement of students from major racial and ethnic groups, 20 U.S.C. § 6311(b)(2)(C)(v) --have nothing to do with the pertinent issues in these cases.

Justice Breyer also suggests that other means for achieving greater racial diversity in schools are necessarily unconstitutional if the racial classifications at issue in these cases cannot survive strict scrutiny. Post, at ____, 168 L. Ed. 2d, at 610-612. These other means--e.g., where to construct new schools, how to allocate resources among schools, and which academic offerings to provide to attract students to certain schools--implicate different considerations than the explicit racial classifications at issue in these cases, and we express no opinion on their validity--not even in dicta. Rather, we employ the familiar and well-established analytic approach of strict scrutiny to evaluate the plans at issue today, an approach that in no way warrants the dissent's cataclysmic concerns. Under [*2767] that approach, the [***86] school districts have not carried their burden of showing that the ends they seek justify the particular extreme means they have chosen--classifying individual students on the basis of their race and discriminating among them on that basis.

* * *

If the need for the racial classifications embraced by the school districts is unclear, even on the districts' own terms, the costs are undeniable. "[D]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality." Adarand, 515 U.S., at 214, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (internal quotation marks omitted). Government action dividing us by race is inherently suspect because such classifications promote "notions of racial inferiority and lead to a politics of racial hostility," Croson, supra, at 493, 109 S. Ct. 706, 102 L. Ed. 2d 854, "reinforce the belief, [**540] held by too many for too much of our history, that individuals should be judged by the color of their skin," [***87] Shaw v. Reno, 509 U.S. 630, 657, 113 S. Ct. 2816, 125 L. Ed. 2d 511 (1993), and "endorse race-based reasoning and the conception of a Nation divided into racial blocs, thus contributing to an escalation of racial hostility and conflict." Metro Broadcasting, 497 U.S., at 603, 110 S. Ct. 2997, 111 L. Ed. 2d 445 (O'Connor, J., dissenting). As the Court explained in Rice v. Cayetano, 528 U.S. 495, 517, 120 S. Ct. 1044, 145 L. Ed. 2d 1007 (2000), "[o]ne of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities."

All this is true enough in the contexts in which these statements were made--government contracting, voting districts, allocation of broadcast licenses, and electing state officers--but when it comes to using race to assign children to schools, history will be heard. In Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954) (Brown I), we held that segregation deprived black children of equal educational opportunities regardless [***88] of whether school facilities and other tangible factors were equal, because government classification and separation on grounds of race themselves denoted inferiority. Id., at 493-494, 74 S. Ct. 686, 98 L. Ed. 873. It was not the inequality of the facilities but the fact of legally separating children on the basis of race on which the Court relied to find a constitutional violation in 1954. See id., at 494, 74 S. Ct. 686, 98 L. Ed. 873 ("'The impact [of segregation] is greater when it has the sanction of the law'"). The next Term, we accordingly stated that "full compliance" with Brown I required school districts "to achieve a system of determining admission to the public schools on a nonracial basis." Brown II, 349 U.S., at 300-301, 75 S. Ct. 753, 99 L. Ed. 1083 (emphasis added).

The parties and their amici debate which side is more faithful to the heritage of Brown, but the position of the plaintiffs in Brown was spelled out in their brief and could not have been clearer: "[T]he Fourteenth Amendment prevents states from according differential treatment to American children on [***89] the basis of their color or race." Brief for Appellants in Nos. 1, 2, and 4 and for Respondents in No. 10 on Reargument in Brown I, O. T. 1953, p 15 (Summary of Argument). What do the racial classifications at issue here do, if not accord differential treatment on the basis of race? As counsel who appeared before this Court for the plaintiffs in Brown put it: "We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in [*2768] affording educational opportunities among its citizens." Tr. of Oral Arg. in Brown I, p 7 (Robert L. Carter, Dec. 9, 1952). There is no ambiguity in that statement. And it was that position that prevailed in this Court, which emphasized in its remedial opinion that what was "[a]t stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis," and what was required was "determining admission to the public schools on a nonracial basis." [***90] Brown II, supra, at 300-301, 75 S. Ct. 753, 99 L. Ed. 1083 [**541] (emphasis added). What do the racial classifications do in these cases, if not determine admission to a public school on a racial basis?

Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again--even for very different reasons. For schools that never segregated on the basis of race, such as Seattle, or that have removed the vestiges of past segregation, such as Jefferson County, the way "to achieve a system of determining admission to the public schools on a nonracial basis," Brown II, 349 U.S., at 300-301, 75 S. Ct. 753, 99 L. Ed. 1083, is to stop assigning students on a racial basis. The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

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

It is so ordered.

CONCUR BY: THOMAS; KENNEDY


CONCUR


Justice Thomas , concurring.

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

I

The dissent repeatedly claims that the school districts are threatened [***92] with resegregation and that they will succumb to that threat if these plans are declared unconstitutional. It also argues that these plans can be justified as part of the school boards' attempts to "eradicat[e] earlier school segregation." See, e.g., post, at ____, 168 L. Ed. 2d, at 577. Contrary to the dissent's rhetoric, neither of these school districts is threatened with resegregation, and neither is constitutionally compelled or permitted to undertake race-based remediation. Racial imbalance is not segregation, and the mere incantation of terms like resegregation and remediation cannot make up the difference.

A

Because this Court has authorized and required race-based remedial measures to [*2769] address de jure segregation, it is important to define segregation clearly and to distinguish it from [**542] racial imbalance. In the context of public schooling, segregation is the deliberate operation of a school system to "carry out a governmental policy to separate pupils in schools solely on the basis of race." Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 6, 91 S. Ct. 1267, 28 L. Ed. 2d 554 (1971); see also [***93] Monroe v. Board of Comm'rs of Jackson, 391 U.S. 450, 452, 88 S. Ct. 1700, 20 L. Ed. 2d 733 (1968). In Brown, this Court declared that segregation was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. Swann, supra, at 6, 91 S. Ct. 1267, 28 L. Ed. 2d 554; see also Green v. County School Board, 391 U.S. 430, 435, 88 S. Ct. 1689, 20 L. Ed. 2d 716 (1968) ("[T]he State, acting through the local school board and school officials, organized and operated a dual system, part 'white' and part 'Negro.' It was such dual systems that 14 years ago Brown I[, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873,] held unconstitutional and a year later Brown II [, 349 U.S. 294, 75 S. Ct. 753, 99 L. Ed. 1083, 71 Ohio Law Abs. 584 (1955)] held must be abolished").1

FOOTNOTES

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


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

FOOTNOTES

2 The dissent refers repeatedly and reverently to "'integration.'" However, outside of the context of remediation for past de jure segregation, "integration" is simply racial balancing. See post, at ____, 168 L. Ed. 2d, at 597. Therefore, the school districts' attempts to further "integrate" are properly thought of as little more than attempts to achieve a particular racial balance.


Although there is arguably a danger of racial imbalance in schools in Seattle and Louisville, there is no danger of resegregation. No one contends that Seattle has established or that Louisville has reestablished a dual school system that separates students on the basis of race. The statistics cited in Appendix A to the dissent are not to the [***96] contrary. See post, at ____ - ____, 168 L. Ed. 2d, at 616-619. At most, those statistics show a national trend toward classroom racial imbalance. However, racial [**543] imbalance without intentional state action to separate the races does not amount to segregation. To raise the specter of resegregation to defend [*2770] these programs is to ignore the meaning of the word and the nature of the cases before us.3

FOOTNOTES

3 The dissent's assertion that these plans are necessary for the school districts to maintain their "hard-won gains" reveals its conflation of segregation and racial imbalance. Post, at ____, 168 L. Ed. 2d, at 597. For the dissent's purposes, the relevant hard-won gains are the present racial compositions in the individual schools in Seattle and Louisville. However, the actual hard-won gain in these cases is the elimination of the vestiges of the system of state-enforced racial separation that once existed in Louisville. To equate the achievement of a certain statistical mix in several schools with the elimination of the system of systematic de jure segregation trivializes the latter accomplishment. Nothing but an interest in classroom aesthetics and a hypersensitivity to elite sensibilities justifies the school districts' racial balancing programs. See Part II-B, infra. But "the principle of inherent equality that underlies and infuses our Constitution" required the disestablishment of de jure segregation. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 240, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995) (Thomas, J., concurring in part and concurring in judgment). Assessed in any objective manner, there is no comparison between the two.


[***97] B

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

1

The Constitution does not permit race-based government decisionmaking simply because a school district claims a remedial purpose and proceeds in good faith [***98] with arguably pure motives. Grutter v. Bollinger, 539 U.S. 306, 371, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (2003) (Thomas, J., concurring in part and dissenting in part) (citing Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 239, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995) (Scalia, J., concurring in part and concurring in judgment)). Rather, race-based government decisionmaking is categorically prohibited unless narrowly tailored to serve a compelling interest. Grutter, supra, at 326, 371, 123 S. Ct. 2325, 156 L. Ed. 2d 304; see also Part II-A, infra. This exacting scrutiny "has proven automatically fatal" in most cases. Jenkins, supra, at 121, 115 S. Ct. 2038, 132 L. Ed. 2d 63 (Thomas, J., concurring); cf. Hirabayashi v. United States, 320 U.S. 81, 100, 63 S. Ct. 1375, 87 L. Ed. 1774 (1943) ("[R]acial discriminations are in most circumstances irrelevant and therefore prohibited"). And appropriately so. "The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every [***99] time the government places citizens on racial registers and makes [**544] race relevant to the provision of burdens or benefits, it demeans us all." Grutter, supra, at 353, 123 S. Ct. 2325, 156 L. Ed 2d 304 (opinion of Thomas, J.). Therefore, as a general rule, all race-based government [*2771] decisionmaking--regardless of context--is unconstitutional.

2

This Court has carved out a narrow exception to that general rule for cases in which a school district has a "history of maintaining two sets of schools in a single school system deliberately operated to carry out a governmental policy to separate pupils in schools solely on the basis of race."4 See Swann, 402 U.S., at 5-6, 91 S. Ct. 1267, 28 L. Ed. 2d 554. In such cases, race-based remedial measures are sometimes required.5Green, 391 U.S., at 437-438, 88 S. Ct. 1689, 20 L. Ed. 2d 716; cf. United States v. Fordice, 505 U.S. 717, 745, 112 S. Ct. 2727, 120 L. Ed. 2d 575 (1992) (Thomas, J., concurring).6 But without a history of state-enforced racial separation, a school district has no affirmative legal obligation to take race-based remedial measures [***100] to eliminate segregation and its vestiges.

FOOTNOTES

4 The dissent makes much of the supposed difficulty of determining whether prior segregation was de jure or de facto. See, e.g., post, at ____ - ____, 168 L. Ed. 2d, at 586-587. That determination typically will not be nearly as difficult as the dissent makes it seem. In most cases, there either will or will not have been a state constitutional amendment, state statute, local ordinance, or local administrative policy explicitly requiring separation of the races. See, e.g., n 1, supra. And even if the determination is difficult, it is one the dissent acknowledges must be made to determine what remedies school districts are required to adopt. Post, at ____, 168 L. Ed. 2d, at 600.

5 This Court's opinion in McDaniel v. Barresi, 402 U.S. 39, 91 S. Ct. 1287, 28 L. Ed. 2d 582 (1971), fits comfortably within this framework. There, a Georgia school board voluntarily adopted a desegregation plan. At the time of Brown, v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), Georgia's Constitution required that "[s]eparate schools shall be provided for the white and colored races." Ga. Const., Art. VII, § 1, ch. 2-6401 (1948). Given that state law had previously required the school board to maintain a dual school system, the county was obligated to take measures to remedy its prior de jure segregation. This Court recognized as much in its opinion, which stated that the school board had an "affirmative duty to disestablish the dual school system." McDaniel, supra, at 41, 91 S. Ct. 1287, 28 L. Ed. 2d 582. [***101]

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


Neither of the programs before us today is compelled as a remedial measure, and no one makes such a claim. [***102] Seattle has no history of de jure segregation; therefore, the Constitution did not require Seattle's plan.7 Although Louisville once operated [*2772] a segregated [**545] school system and was subject to a Federal District Court's desegregation decree, see ante, at ____, 168 L. Ed. 2d, at 520; Hampton v. Jefferson Cty. Bd. of Ed., 102 F. Supp. 2d 358, 376-377 (WD Ky. 2000), that decree was dissolved in 2000, id., at 360. Since then, no race-based remedial measures have been required in Louisville. Thus, the race-based student-assignment plan at issue here, which was instituted the year after the dissolution of the desegregation decree, was not even arguably required by the Constitution.

FOOTNOTES

7 Though the dissent cites every manner of complaint, record material, and scholarly article relating to Seattle's race-based student assignment efforts, post, at ____ - ____, 168 L. Ed. 2d, at 620-621, it cites no law or official policy that required separation of the races in Seattle's schools. Nevertheless, the dissent tries to cast doubt on the historical fact that the Seattle schools were never segregated by law by citing allegations that the National Association for the Advancement of Colored People and other organizations made in court filings to the effect that Seattle's schools were once segregated by law. See post, at ____ - ____, ____, 168 L. Ed. 2d, at 578-580, 588. These allegations were never proved and were not even made in this case. Indeed, the record before us suggests the contrary. See App. in No. 05-908, pp 214a, 225a, 257a. Past allegations in another case provide no basis for resolving these cases.


3 [***103]

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

Furthermore, for a government unit to remedy past discrimination for which it was responsible, the Court [***104] has required it to demonstrate "a 'strong basis in evidence for its conclusion that remedial action was necessary.'" Croson, 488 U.S., at 500, 109 S. Ct. 706, 102 L. Ed. 2d 854 (quoting Wygant, supra, at 277, 106 S. Ct. 1842, 90 L. Ed. 2d 26 (plurality opinion)). Establishing a "strong basis in evidence" requires proper findings regarding the extent of the government unit's past racial discrimination. Croson, 488 U.S., at 504, 109 S. Ct. 706, 102 L. Ed. 2d 854. The findings should "define the scope of any injury [and] the necessary remedy," id., at 505, 109 S. Ct. 706, 102 L. Ed. 2d 854, and must be more than "inherently unmeasurable claims of past wrongs," id., at 506, 109 S. Ct. 706, 102 L. Ed. 2d 854. Assertions of general societal discrimination are plainly insufficient. Id., at 499, 504, 109 S. Ct. 706, 102 L. Ed. 2d 854; Wygant, supra, at 274, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (plurality opinion); cf. [***105] Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 310, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978) (opinion of Powell, J.). Neither school district has made any such specific findings. For Seattle, the dissent attempts to make up for this failing by adverting to allegations made in past complaints filed against the Seattle school district. However, allegations in complaints cannot substitute for specific findings of prior discrimination--even when those allegations lead to settlements [**546] with complaining parties. Cf. Croson, supra, at 505, 109 S. Ct. 706, 102 L. Ed 2d 854; Wygant, supra, at 279, n. 5, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (plurality opinion). As for Louisville, its slate was cleared by the District Court's 2000 dissolution decree, which effectively declared that there were no longer any effects of de jure discrimination in need of remediation.8

FOOTNOTES

8 Contrary to the dissent's argument, post, at ____, 168 L. Ed. 2d, at 601, the Louisville school district's interest in remedying its past de jure segregation did vanish the day the District Court found that Louisville had eliminated the vestiges of its historic de jure segregation. See Hampton v. Jefferson Cty. Bd. of Ed., 102 F. Supp. 2d 358, at 360 (WD Ky. 2000). If there were further remediation to be done, the District Court could not logically have reached the conclusion that Louisville "ha[d] eliminated the vestiges associated with the former policy of segregation and its pernicious effects." Ibid. Because Louisville could use race-based measures only as a remedy for past de jure segregation, it is not "incoherent," post, at ____, 168 L. Ed. 2d, at 608, to say that race-based decisionmaking was allowed to Louisville one day--while it was still remedying--and forbidden to it the next--when remediation was finished. That seemingly odd turnaround is merely a result of the fact that the remediation of de jure segregation is a jealously guarded exception to the Equal Protection Clause's general rule against government race-based decisionmaking.