Text - 2007 Supreme Court Reversal of School Integration p.6

[johnkarls]

[***183] The Chief Justice rejects the conclusion that the racial classifications at issue here should be viewed differently than others, because they do not impose burdens on one race alone and do not stigmatize or exclude.3 The only justification for refusing to acknowledge the obvious importance of that difference is the citation of a few recent opinions--none of which even approached unanimity--grandly proclaiming that all racial classifications must be analyzed under "strict scrutiny." See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995). Even today, two of our wisest federal judges have rejected such a wooden reading of the Equal Protection Clause in the context of school integration. See 426 F.3d 1162, 1193-1196 (CA9 2005) (Kozinski, J., concurring); Comfort v. Lynn School Comm., 418 F.3d 1, 27-29 (CA1 2005) (Boudin, C. J., concurring). The Court's misuse of the three-tiered approach to Equal Protection analysis merely reconfirms my own view that there is only one such Clause in the Constitution. See [***184] Craig v. Boren, 429 U.S. 190, 211, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976) (concurring opinion).4

FOOTNOTES

3 I have long adhered to the view that a decision to exclude a member of a minority because of his race is fundamentally different from a decision to include a member of a minority for that reason. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 243, 248, n. 6, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995) (Stevens, J., dissenting); Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 316, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (1986) (same). This distinction is critically important in the context of education. While the focus of our opinions is often on the benefits that minority schoolchildren receive from an integrated education, see, e.g., ante, at ____, 168 L. Ed. 2d, at 549 (Thomas, J., concurring), children of all races benefit from integrated classrooms and playgrounds, see Wygant, 476 U.S., at 316, 106 S. Ct. 1842, 90 L. Ed. 2d 260 ("[T]he fact that persons of different races do, indeed, have differently colored skin, may give rise to a belief that there is some significant difference between such persons. The inclusion of minority teachers in the educational process inevitably tends to dispel that illusion whereas their exclusion could only tend to foster it"). [***185]

4 The Chief Justice twice cites my dissent in Fullilove v. Klutznick, 448 U.S. 448, 100 S. Ct. 2758, 65 L. Ed. 2d 902 (1980). See ante, at ____, ____, 168 L. Ed. 2d, at 523, 530. In that case, I stressed the importance of confining a remedy for past wrongdoing to the members of the injured class. See 448 U.S., at 539, 100 S. Ct. 2758, 65 L. Ed. 2d 902. The present cases, unlike Fullilove but like our decision in Wygant, 476 U.S. 267, 106 S. Ct. 1842, 90 L. Ed. 2d 260, require us to "ask whether the Board[s'] actions[s] advanc[e] the public interest in educating children for the future," id., at 313, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (Stevens, J., dissenting) (emphasis added). See ibid. ("In my opinion, it is not necessary to find that the Board of Education has been guilty of racial discrimination in the past to support the conclusion that it has a legitimate interest in employing more black teachers in the future"). See also Adarand, 515 U.S., at 261-262, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995) (Stevens, J., dissenting) ("This program, then, if in part a remedy for past discrimination, is most importantly a forward-looking response to practical problems faced by minority subcontractors").


[**574] [***186] [*2799] If we look at cases decided during the interim between Brown and Adarand, we can see how a rigid adherence to tiers of scrutiny obscures Brown's clear message. Perhaps the best example is provided by our approval of the decision of the Supreme Judicial Court of Massachusetts in 1967 upholding a state statute mandating racial integration in that State's school system. See School Comm. of Boston v. Board of Education, 352 Mass. 693, 227 N.E.2d 729.5 Rejecting arguments comparable to those that the plurality accepts today,6 that court noted: "It would be the height of irony if the racial imbalance act, enacted as it was with the laudable purpose of achieving equal educational opportunities, should, by prescribing school pupil allocations based on race, founder on unsuspected shoals in the Fourteenth Amendment." Id., at 698, 227 N. E. 2d, at 733 (footnote omitted).

FOOTNOTES

5 The Chief Justice states that the Massachusetts racial imbalance Act did not require express classifications. See ante, at ____ - ____, n 16, 168 L. Ed. 2d, at 535. This is incorrect. The Massachusetts Supreme Judicial Court expressly stated: "The racial imbalance act requires the school committee of every municipality annually to submit statistics showing the percentage of nonwhite pupils in all public schools and in each school. Whenever the board finds that racial imbalance exists in a public school, it shall give written notice to the appropriate school committee, which shall prepare a plan to eliminate imbalance and file a copy with the board. 'The term "racial imbalance" refers to a ratio between nonwhite and other students in public schools which is sharply out of balance with the racial composition of the society in which nonwhite children study, serve and work. For the purpose of this section, racial imbalance shall be deemed to exist when the per cent of nonwhite students in any public school is in excess of fifty per cent of the total number of students in such school.'" 352 Mass., at 695, 227 N. E. 2d, at 731. [***187]

6 Compare ante, at ____, 168 L. Ed. 2d, at 540 ("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"), with Juris. Statement in School Comm. of Boston v. Board of Education, O. T. 1967, No. 67-759, p 11 ("It is implicit in Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873, that color or race is a constitutionally impermissible standard for the assignment of school children to public schools. We construe Brown as endorsing Mr. Justice Harlan's classical statement in Plessy v. Ferguson, 163 U.S. 537, 539, 16 S. Ct. 1138, 41 L. Ed. 256: 'Our constitution is color-blind, and neither knows nor tolerates classes among citizens'").


Invoking our mandatory appellate jurisdiction,7 the Boston plaintiffs prosecuted an appeal in this Court. Our ruling on the merits simply stated that the appeal was "dismissed for want of a substantial federal question." [***188] School Comm. of Boston v. Board of Education, 389 U.S. 572, 88 S. Ct. 692, 19 L. Ed. 2d 778 (1968) (per curiam). That decision not only expressed our appraisal of the merits of the appeal, but it constitutes a precedent that the Court [*2800] overrules today. The subsequent statements by the unanimous Court in Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 16, 91 S. Ct. 1267, 28 L. Ed. 2d 554 (1971), by then-Justice Rehnquist in chambers in Bustop, [**575] Inc. v. Los Angeles Bd. of Ed., 439 U.S. 1380, 1383, 99 S. Ct. 40, 58 L. Ed. 2d 88 (1978), and by the host of state court decisions cited by Justice Breyer, see post, ____ - ____, 168 L. Ed. 2d, at 589-590, 591,8 were fully consistent with that disposition. Unlike today's decision, they were also entirely loyal to Brown.

FOOTNOTES

7 In 1968 our mandatory jurisdiction was defined by the provision of the 1948 Judicial Code then codified at 28 U.S.C. § 1257, see 62 Stat. 929; that provision was repealed in 1988, see 102 Stat. 662.

8 For example, prior to our decision in School Comm. of Boston, the Illinois Supreme Court had issued an unpublished opinion holding unconstitutional a similar statute aimed at eliminating racial imbalance in public schools. See Juris. Statement in School Comm. of Boston v. Board of Education, O. T. 1967, No. 67-759, at 9 ("Unlike the Massachusetts Court, the Illinois Supreme Court has recently held its law to eliminate racial imbalance unconstitutional on the ground that it violated the Equal Protection Clause of the Fourteenth Amendment"); ibid., n 1. However, shortly after we dismissed the Massachusetts suit for want of a substantial federal question, the Illinois Supreme Court reversed course and upheld its statute in the published decision that Justice Breyer extensively quotes in his dissent. See Tometz v. Board of Ed., Waukegan School Dist. No. 6, 39 Ill. 2d 593, 237 N.E.2d 498 (1968). In so doing, the Illinois Supreme Court acted in explicit reliance on our decision in School Comm. of Boston. See 39 Ill. 2d, at 599-600, 237 N. E. 2d, at 502 ("Too, the United States Supreme Court on January 15, 1968, dismissed an appeal in School Committee of Boston v. Board of Education, (Mass. 1967) 352 Mass. 693, 227 N.E.2d 729, which challenged the statute providing for elimination of racial imbalance in public schools 'for want of a substantial federal question.' 389 U.S. 572, 88 S. Ct. 692, 19 L. Ed. 2d 778").


[***189] The Court has changed significantly since it decided School Comm. of Boston in 1968. It was then more faithful to Brown and more respectful of our precedent than it is today. It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision.



Justice Breyer , with whom Justice Stevens , Justice Souter , and Justice Ginsburg join, dissenting.

These cases consider the longstanding efforts of two local school boards to integrate their public schools. The school board plans before us resemble many others adopted in the last 50 years by primary and secondary schools throughout the Nation. All of those plans represent local efforts to bring about the kind of racially integrated education that Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), long ago promised--efforts that this Court has repeatedly required, permitted, and encouraged local authorities to undertake. This Court has recognized that the public interests at stake in such cases are "compelling." We have approved of "narrowly tailored" plans that are no less race-conscious than the plans before us. And we have understood [***190] that the Constitution permits local communities to adopt desegregation plans even where it does not require them to do so.

The plurality pays inadequate attention to this law, to past opinions' rationales, their language, and the contexts in which they arise. As a result, it reverses course and reaches the wrong conclusion. In doing so, it distorts precedent, it misapplies the relevant constitutional principles, it announces legal rules that will obstruct efforts by state and local governments to deal effectively with the growing resegregation of public schools, it threatens to substitute for present calm a disruptive round of race-related litigation, and it undermines Brown's promise of integrated primary and secondary education that local communities have sought to make a reality. [*2801] This cannot be justified in the name of the Equal Protection Clause.

[**576] I

Facts

The historical and factual context in which these cases arise is critical. In Brown, this Court held that the government's segregation of schoolchildren by race violates the Constitution's promise of equal protection. The Court emphasized that "education is perhaps [***191] the most important function of state and local governments." 347 U.S., at 493, 74 S. Ct. 686, 98 L. Ed. 2d 873. And it thereby set the Nation on a path toward public school integration.

In dozens of subsequent cases, this Court told school districts previously segregated by law what they must do at a minimum to comply with Brown's constitutional holding. The measures required by those cases often included race-conscious practices, such as mandatory busing and race-based restrictions on voluntary transfers. See, e.g., Columbus Bd. of Ed. v. Penick, 443 U.S. 449, 455, n. 3, 99 S. Ct. 2941, 61 L. Ed. 2d 666 (1979); Davis v. Board of School Comm'rs of Mobile Cty., 402 U.S. 33, 37-38, 91 S. Ct. 1289, 28 L. Ed. 2d 577 (1971); Green v. County School Board, 391 U.S. 430, 441-442, 88 S. Ct. 1689, 20 L. Ed. 2d 716 (1968).

Beyond those minimum requirements, the Court left much of the determination of how to achieve integration to the judgment of local communities. Thus, in respect to race-conscious desegregation measures that the Constitution permitted, but did not require (measures similar to those [***192] at issue here), this Court unanimously stated:
"School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities." Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 16, 91 S. Ct. 1267, 28 L. Ed. 2d 554 (1971) (emphasis added).


As a result, different districts --some acting under court decree, some acting in order to avoid threatened lawsuits, some seeking to comply with federal administrative orders, some acting purely voluntarily, some acting after federal courts had dissolved earlier orders--adopted, modified, and experimented with hosts of different kinds of plans, including race-conscious plans, all with a similar objective: greater racial integration of public schools. See F. Welch & A. Light, New Evidence on School Desegregation v (1987) (hereinafter Welch) (prepared [***193] for the Commission on Civil Rights) (reviewing a sample of 125 school districts, constituting 20% of national public school enrollment, that had experimented with nearly 300 different plans over 18 years). The techniques that different districts have employed range "from voluntary transfer programs to mandatory reassignment." Id., at 21. And the design of particular plans has been "dictated by both the law and the specific needs of the district." Ibid.

Overall these efforts brought about considerable racial integration. More recently, however, progress has stalled. Between 1968 and 1980, the number of black children attending a [**577] school where minority children constituted more than half of the school fell from 77% to 63% in the Nation (from 81% to 57% in the South) but then reversed direction by the year 2000, rising from 63% to 72% in the Nation (from 57% [*2802] to 69% in the South). Similarly, between 1968 and 1980, the number of black children attending schools that were more than 90% minority fell from 64% to 33% in the Nation (from 78% to 23% in the South), but that too reversed direction, rising by the year 2000 from 33% to 37% in the Nation (from 23% to 31% in the [***194] South). As of 2002, almost 2.4 million students, or over 5% of all public school enrollment, attended schools with a white population of less than 1%. Of these, 2.3 million were black and Latino students, and only 72,000 were white. Today, more than one in six black children attend a school that is 99-100% minority. See Appendix A, infra. In light of the evident risk of a return to school systems that are in fact (though not in law) resegregated, many school districts have felt a need to maintain or to extend their integration efforts.

The upshot is that myriad school districts operating in myriad circumstances have devised myriad plans, often with race-conscious elements, all for the sake of eradicating earlier school segregation, bringing about integration, or preventing retrogression. Seattle and Louisville are two such districts, and the histories of their present plans set forth typical school integration stories.

I describe those histories at length in order to highlight three important features of these cases. First, the school districts' plans serve "compelling interests" and are "narrowly tailored" on any reasonable definition of those terms. Second, the distinction [***195] between de jure segregation (caused by school systems) and de facto segregation (caused, e.g., by housing patterns or generalized societal discrimination) is meaningless in the present context, thereby dooming the plurality's endeavor to find support for its views in that distinction. Third, real-world efforts to substitute racially diverse for racially segregated schools (however caused) are complex, to the point where the Constitution cannot plausibly be interpreted to rule out categorically all local efforts to use means that are "conscious" of the race of individuals.

In both Seattle and Louisville, the local school districts began with schools that were highly segregated in fact. In both cities plaintiffs filed lawsuits claiming unconstitutional segregation. In Louisville, a federal district court found that school segregation reflected pre-Brown state laws separating the races. In Seattle, the plaintiffs alleged that school segregation unconstitutionally reflected not only generalized societal discrimination and residential housing patterns, but also school board policies and actions that had helped to create, maintain, and aggravate racial segregation. In [***196] Louisville, a federal court entered a remedial decree. In Seattle, the parties settled after the school district pledged to undertake a desegregation plan. In both cities, the school boards adopted plans designed to achieve integration by bringing about more racially diverse schools. In each city the school board modified its plan several times in light of, for example, hostility to busing, the threat of resegregation, and the desirability of introducing greater student choice. And in each city, the school boards' plans have evolved over time [**578] in ways that progressively diminish the plans' use of explicit race-conscious criteria.

The histories that follow set forth these basic facts. They are based upon numerous sources, which for ease of exposition I have cataloged, along with their corresponding citations, at Appendix B, infra.

A

Seattle

1. Segregation, 1945 to 1956. During and just after World War II, significant [*2803] numbers of black Americans began to make Seattle their home. Few black residents lived outside the central section of the city. Most worked at unskilled jobs. Although black students made up about 3% of the total Seattle population in the [***197] mid-1950's, nearly all black children attended schools where a majority of the population was minority. Elementary schools in central Seattle were between 60% and 80% black; Garfield, the central district high school, was more than 50% minority; schools outside the central and southeastern sections of Seattle were virtually all white.

2. Preliminary Challenges, 1956 to 1969. In 1956, a memo for the Seattle School Board reported that school segregation reflected not only segregated housing patterns but also school board policies that permitted white students to transfer out of black schools while restricting the transfer of black students into white schools. In 1958, black parents whose children attended Harrison Elementary School (with a black student population of over 75%) wrote the Seattle board, complaining that the "'boundaries for the Harrison Elementary School were not set in accordance with the long-established standards of the School District . . . but were arbitrarily set with an end to excluding colored children from McGilvra School, which is adjacent to the Harrison school district.'"

In 1963, at the insistence of the National Association for the Advancement of Colored [***198] People (NAACP) and other community groups, the school board adopted a new race-based transfer policy. The new policy added an explicitly racial criterion: If a place exists in a school, then, irrespective of other transfer criteria, a white student may transfer to a predominantly black school, and a black student may transfer to a predominantly white school.

At that time one high school, Garfield, was about two-thirds minority; eight high schools were virtually all white. In 1963, the transfer program's first year, 239 black students and 8 white students transferred. In 1969, about 2,200 (of 10,383 total) of the district's black students and about 400 of the district's white students took advantage of the plan. For the next decade, annual program transfers remained at approximately this level.

3. The NAACP's First Legal Challenge and Seattle's Response, 1969 to 1977. In 1969 the NAACP filed a federal lawsuit against the school board, claiming that the board had "unlawfully and unconstitutionally" "establish[ed]" and "maintain[ed]" a system of "racially segregated public schools." The complaint said that 77% of black public elementary school students in Seattle attended 9 of the [***199] city's 86 elementary schools and that 23 of the remaining schools had no black students at all. Similarly, of the 1,461 black students enrolled in the [**579] 12 senior high schools in Seattle, 1,151 (or 78.8%) attended 3 senior high schools, and 900 (61.6%) attended a single school, Garfield.

The complaint charged that the school board had brought about this segregated system in part by "mak[ing] and enforc[ing]" certain "rules and regulations," in part by "drawing . . . boundary lines" and "executing school attendance policies" that would create and maintain "predominantly Negro or non-white schools," and in part by building schools "in such a manner as to restrict the Negro plaintiffs and the class they represent to predominantly negro or non-white schools." The complaint also charged that the board discriminated in assigning teachers.

The board responded to the lawsuit by introducing a plan that required race-based transfers and mandatory busing. The plan created three new middle schools [*2804] at three school buildings in the predominantly white north end. It then created a "mixed" student body by assigning to those schools students who would otherwise attend predominantly white, [***200] or predominantly black, schools elsewhere. It used explicitly racial criteria in making these assignments (i.e., it deliberately assigned to the new middle schools black students, not white students, from the black schools and white students, not black students, from the white schools). And it used busing to transport the students to their new assignments. The plan provoked considerable local opposition. Opponents brought a lawsuit. But eventually a state court found that the mandatory busing was lawful.

In 1976-1977, the plan involved the busing of about 500 middle school students (300 black students and 200 white students). Another 1,200 black students and 400 white students participated in the previously adopted voluntary transfer program. Thus about 2,000 students out of a total district population of about 60,000 students were involved in one or the other transfer program. At that time, about 20% or 12,000 of the district's students were black. And the board continued to describe 26 of its 112 schools as "segregated."

4.The NAACP's Second Legal Challenge, 1977. In 1977, the NAACP filed another legal complaint, this time with the federal Department of Health, Education, [***201] and Welfare's Office for Civil Rights (OCR). The complaint alleged that the Seattle School Board had created or perpetuated unlawful racial segregation through, e.g., certain school-transfer criteria, a construction program that needlessly built new schools in white areas, district line-drawing criteria, the maintenance of inferior facilities at black schools, the use of explicit racial criteria in the assignment of teachers and other staff, and a general pattern of delay in respect to the implementation of promised desegregation efforts.

The OCR and the school board entered into a formal settlement agreement. The agreement required the board to implement what became known as the "Seattle Plan."

5. The Seattle Plan: Mandatory Busing, 1978 to 1988. The board began to implement the Seattle Plan in 1978. This plan labeled "racially imbalanced" any school at which the percentage of black students exceeded by more than 20% the minority population of the school district as a whole. It applied that label to 26 schools, including 4 high schools--Cleveland [**580] (72.8% minority), Franklin (76.6% minority), Garfield (78.4% minority), and Rainier Beach (58.9% minority). The [***202] plan paired (or "triaded") "imbalanced" black schools with "imbalanced" white schools. It then placed some grades (say, third and fourth grades) at one school building and other grades (say, fifth and sixth grades) at the other school building. And it thereby required, for example, all fourth grade students from the previously black and previously white schools first to attend together what would now be a "mixed" fourth grade at one of the school buildings and then the next year to attend what would now be a "mixed" fifth grade at the other school building.

At the same time, the plan provided that a previous "black" school would remain about 50% black, while a previous "white" school would remain about two-thirds white. It was consequently necessary to decide with some care which students would attend the new "mixed" grade. For this purpose, administrators cataloged the racial makeup of each neighborhood housing block. The school district met its percentage goals by assigning to the new [*2805] "mixed" school an appropriate number of "black" housing blocks and "white" housing blocks. At the same time, transport from house to school involved extensive busing, with about half of all students [***203] attending a school other than the one closest to their home.

The Seattle Plan achieved the school integration that it sought. Just prior to the plan's implementation, for example, 4 of Seattle's 11 high schools were "imbalanced," i.e., almost exclusively "black" or almost exclusively "white." By 1979, only two were out of "balance." By 1980 only Cleveland remained out of "balance" (as the board defined it) and that by a mere two students.

Nonetheless, the Seattle Plan, due to its busing, provoked serious opposition within the State. See generally Washington v. Seattle School Dist. No. 1, 458 U.S. 457, 461-466, 102 S. Ct. 3187, 73 L. Ed. 2d 896 (1982). Thus, Washington state voters enacted an initiative that amended state law to require students to be assigned to the schools closest to their homes. Id., at 462, 102 S. Ct. 3187, 73 L. Ed. 2d 896. The Seattle School Board challenged the constitutionality of the initiative. Id., at 464, 102 S. Ct. 3187, 73 L. Ed. 2d 896. This Court then held that the initiative--which would have prevented the Seattle Plan from taking effect--violated the Fourteenth Amendment [***204] . Id., at 470, 102 S. Ct. 3187, 73 L. Ed. 2d 896.

6. Student Choice, 1988 to 1998. By 1988, many white families had left the school district, and many Asian families had moved in. The public school population had fallen from about 100,000 to less than 50,000. The racial makeup of the school population amounted to 43% white, 24% black, and 23% Asian or Pacific Islander, with Hispanics and Native Americans making up the rest. The cost of busing, the harm that members of all racial communities feared that the Seattle Plan caused, the desire to attract white families back to the public schools, and the interest in providing greater school choice led the board to abandon busing and to substitute a new student assignment policy that resembles the plan now before us.

The new plan permitted each student to choose the school he or she wished to attend, subject to race-based constraints. In respect to high [**581] schools, for example, a student was given a list of a subset of schools, carefully selected by the board to balance racial distribution in the district by including neighborhood schools and schools in racially different neighborhoods elsewhere in the city. [***205] The student could then choose among those schools, indicating a first choice, and other choices the student found acceptable. In making an assignment to a particular high school, the district would give first preference to a student with a sibling already at the school. It gave second preference to a student whose race differed from a race that was "over-represented" at the school (i.e., a race that accounted for a higher percentage of the school population than of the total district population). It gave third preference to students residing in the neighborhood. It gave fourth preference to students who received child care in the neighborhood. In a typical year, say, 1995, about 20,000 potential high school students participated. About 68% received their first choice. Another 16% received an "acceptable" choice. A further 16% were assigned to a school they had not listed.

7. The Current Plan, 1999 to the Present. In 1996, the school board adopted the present plan, which began in 1999. In doing so, it sought to deemphasize the use of racial criteria and to increase the likelihood that a student would receive an assignment at his first or second choice high school. The district [***206] retained a racial tiebreaker [*2806] for oversubscribed schools, which takes effect only if the school's minority or majority enrollment falls outside of a 30% range centered on the minority/majority population ratio within the district. At the same time, all students were free subsequently to transfer from the school at which they were initially placed to a different school of their choice without regard to race. Thus, at worst, a student would have to spend one year at a high school he did not pick as a first or second choice.

The new plan worked roughly as expected for the two school years during which it was in effect (1999-2000 and 2000-2001). In the 2000-2001 school year, for example, with the racial tiebreaker, the entering ninth grade class at Franklin High School had a 60% minority population; without the racial tiebreaker that same class at Franklin would have had an almost 80% minority population. (We consider only the ninth grade since only students entering that class were subject to the tiebreaker, and because the plan was not in place long enough to change the composition of an entire school.) In the year 2005-2006, by which time the racial tiebreaker had not been used for [***207] several years, Franklin's overall minority enrollment had risen to 90%. During the period the tiebreaker applied, it typically affected about 300 students per year. Between 80% and 90% of all students received their first choice assignment; between 89% and 97% received their first or second choice assignment.

Petitioner Parents Involved in Community Schools objected to Seattle's most recent plan under the State and Federal Constitutions. In due course, the Washington Supreme Court, the Federal District Court, and the Court of Appeals for the Ninth Circuit (sitting en banc) rejected the challenge and found Seattle's plan lawful.

[**582] B

Louisville

1. Before the Lawsuit, 1954 to 1972. In 1956, two years after Brown made clear that Kentucky could no longer require racial segregation by law, the Louisville Board of Education created a geography-based student assignment plan designed to help achieve school integration. At the same time it adopted an open transfer policy under which approximately 3,000 of Louisville's 46,000 students applied for transfer. By 1972, however, the Louisville School District remained highly segregated. Approximately half the district's [***208] public school enrollment was black; about half was white. Fourteen of the district's nineteen non-vocational middle and high schools were close to totally black or totally white. Nineteen of the district's forty-six elementary schools were between 80% and 100% black. Twenty-one elementary schools were between roughly 90% and 100% white.

2. Court-Imposed Guidelines and Busing, 1972 to 1991. In 1972, civil rights groups and parents, claiming unconstitutional segregation, sued the Louisville Board of Education in federal court. The original litigation eventually became a lawsuit against the Jefferson County School System, which in April 1975 absorbed Louisville's schools and combined them with those of the surrounding suburbs. (For ease of exposition, I shall still use "Louisville" to refer to what is now the combined districts.) After preliminary rulings and an eventual victory for the plaintiffs in the Court of Appeals for the Sixth Circuit, the District Court in July 1975 entered an order requiring desegregation.

The order's requirements reflected a (newly enlarged) school district student population of about 135,000, approximately [*2807] 20% of whom were black. The order required the [***209] school board to create and to maintain schools with student populations that ranged, for elementary schools, between 12% and 40% black, and for secondary schools (with one exception), between 12.5% and 35% black.

The District Court also adopted a complex desegregation plan designed to achieve the order's targets. The plan required redrawing school attendance zones, closing 12 schools, and busing groups of students, selected by race and the first letter of their last names, to schools outside their immediate neighborhoods. The plan's initial busing requirements were extensive, involving the busing of 23,000 students and a transportation fleet that had to "operate from early in the morning until late in the evening." For typical students, the plan meant busing for several years (several more years for typical black students than for typical white students). The following notice, published in a Louisville newspaper in 1976, gives a sense of how the district's race-based busing plan operated in practice:

[**583] [SEE ILLUSTRATION IN ORIGINAL]

Louisville Courier Journal, June 18, 1976 (reproduced in J. Wilkinson, From Brown to Bakke: The Supreme Court and School Integration [***210] 1954-1978, p 176 (1979)).

The District Court monitored implementation of the plan. In 1978, it found that the plan had brought all of Louisville's schools within its "'guidelines' for racial composition" for "at least a substantial portion of the [previous] three years." It removed the case from its active docket while stating that it expected the board "to continue to implement those portions of the desegregation order which are by their nature of a continuing effect."

By 1984, after several schools had fallen out of compliance with the order's racial percentages due to shifting demographics in the community, the school board revised its desegregation plan. In doing so, the board created a new racial "guideline," namely a "floating range of 10% above and 10% below the countywide average for the different grade levels." The board simultaneously redrew district boundaries so that middle school students could attend the same school for three years and high school students for four years. It added "magnet" programs at two high schools. And it adjusted its alphabet-based system for grouping and busing students. The board estimated that its new plan would [*2808] lead to annual reassignment [***211] (with busing) of about 8,500 black students and about 8,000 white students.

3. Student Choice and Project Renaissance, 1991 to 1996. By 1991, the board had concluded that assigning elementary school students to two or more schools during their elementary school years had proved educationally unsound and, if continued, would undermine Kentucky's newly adopted Education Reform Act. It consequently conducted a nearly year-long review of its plan. In doing so, it consulted widely with parents and other members of the local community, [**584] using public presentations, public meetings, and various other methods to obtain the public's input. At the conclusion of this review, the board adopted a new plan, called "Project Renaissance," that emphasized student choice.

Project Renaissance again revised the board's racial guidelines. It provided that each elementary school would have a black student population of between 15% and 50%; each middle and high school would have a black population and a white population that fell within a range, the boundaries of which were set at 15% above and 15% below the general student population percentages in the county at that grade level. The plan [***212] then drew new geographical school assignment zones designed to satisfy these guidelines; the district could reassign students if particular schools failed to meet the guidelines and was required to do so if a school repeatedly missed these targets.

In respect to elementary schools, the plan first drew a neighborhood line around each elementary school, and it then drew a second line around groups of elementary schools (called "clusters"). It initially assigned each student to his or her neighborhood school, but it permitted each student freely to transfer between elementary schools within each cluster provided that the transferring student (a) was black if transferring from a predominantly black school to a predominantly white school, or (b) was white if transferring from a predominantly white school to a predominantly black school. Students could also apply to attend magnet elementary schools or programs.

The plan required each middle school student to be assigned to his or her neighborhood school unless the student applied for, and was accepted by, a magnet middle school. The plan provided for "open" high school enrollment. Every 9th or 10th grader could apply to any high school [***213] in the system, and the high school would accept applicants according to set criteria--one of which consisted of the need to attain or remain in compliance with the plan's racial guidelines. Finally, the plan created two new magnet schools, one each at the elementary and middle school levels.

4. The Current Plan: Project Renaissance Modified, 1996 to 2003. In 1995 and 1996, the Louisville School Board, with the help of a special "Planning Team," community meetings, and other official and unofficial study groups, monitored the effects of Project Renaissance and considered proposals for improvement. Consequently, in 1996, the board modified Project Renaissance, thereby creating the present plan.

At the time, the district's public school population was approximately 30% black. The plan consequently redrew the racial "guidelines," setting the boundaries at 15% to 50% black for all schools. It again redrew school assignment boundaries. And it expanded the transfer opportunities available to elementary and middle school pupils. The plan forbade transfers, however, if the transfer would lead to a school population outside the guideline range, i.e., if it would create a school [***214] where fewer [*2809] than 15% or more than 50% of the students were black.

The plan also established "Parent Assistance Centers" to help parents and students navigate the school selection and assignment process. It pledged the use of other resources in [**585] order to "encourage all schools to achieve an African-American enrollment equivalent to the average district-wide African-American enrollment at the school's respective elementary, middle or high school level." And the plan continued use of magnet schools.

In 1999, several parents brought a lawsuit in federal court attacking the plan's use of racial guidelines at one of the district's magnet schools. They asked the court to dissolve the desegregation order and to hold the use of magnet school racial guidelines unconstitutional. The board opposed dissolution, arguing that "the old dual system" had left a "demographic imbalance" that "prevent[ed] dissolution." In 2000, after reviewing the present plan, the District Court dissolved the 1975 order. It wrote that there was "overwhelming evidence of the Board's good faith compliance with the desegregation Decree and its underlying purposes." It added that the Louisville School Board [***215] had "treated the ideal of an integrated system as much more than a legal obligation--they consider it a positive, desirable policy and an essential element of any well-rounded public school education."

The Court also found that the magnet programs available at the high school in question were "not available at other high schools" in the school district. It consequently held unconstitutional the use of race-based "targets" to govern admission to magnet schools. And it ordered the board not to control access to those scarce programs through the use of racial targets.

5. The Current Lawsuit, 2003 to the Present. Subsequent to the District Court's dissolution of the desegregation order (in 2000) the board simply continued to implement its 1996 plan as modified to reflect the court's magnet school determination. In 2003, the petitioner now before us, Crystal Meredith, brought this lawsuit challenging the plan's unmodified portions, i.e., those portions that dealt with ordinary, not magnet, schools. Both the District Court and the Court of Appeals for the Sixth Circuit rejected Meredith's challenge and held the unmodified aspects of the plan constitutional.

C

The histories [***216] I have set forth describe the extensive and ongoing efforts of two school districts to bring about greater racial integration of their public schools. In both cases the efforts were in part remedial. Louisville began its integration efforts in earnest when a federal court in 1975 entered a school desegregation order. Seattle undertook its integration efforts in response to the filing of a federal lawsuit and as a result of its settlement of a segregation complaint filed with the federal OCR.

The plans in both Louisville and Seattle grow out of these earlier remedial efforts. Both districts faced problems that reflected initial periods of severe racial segregation, followed by such remedial efforts as busing, followed by evidence of resegregation, followed by a need to end busing and encourage the return of, e.g., suburban students through increased student choice. When formulating the plans under review, both districts drew upon their considerable experience with earlier plans, having revised their policies periodically in light of that experience. Both districts rethought their methods over time and explored a wide range of other [**586] means, including non-race-conscious [***217] policies. Both districts also [*2810] considered elaborate studies and consulted widely within their communities.

Both districts sought greater racial integration for educational and democratic, as well as for remedial, reasons. Both sought to achieve these objectives while preserving their commitment to other educational goals, e.g., districtwide commitment to high quality public schools, increased pupil assignment to neighborhood schools, diminished use of busing, greater student choice, reduced risk of white flight, and so forth. Consequently, the present plans expand student choice; they limit the burdens (including busing) that earlier plans had imposed upon students and their families; and they use race-conscious criteria in limited and gradually diminishing ways. In particular, they use race-conscious criteria only to mark the outer bounds of broad population-related ranges.

The histories also make clear the futility of looking simply to whether earlier school segregation was de jure or de facto in order to draw firm lines separating the constitutionally permissible from the constitutionally forbidden use of "race-conscious" criteria. Justice Thomas suggests that it will [***218] be easy to identify de jure segregation because "n 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." Ante, at ____, n 4, 168 L. Ed. 2d, at 544 (concurring opinion). But our precedent has recognized that de jure discrimination can be present even in the absence of racially explicit laws. See Yick Wo v. Hopkins, 118 U.S. 356, 373-374, 6 S. Ct. 1064, 30 L. Ed. 220 (1886).

No one here disputes that Louisville's segregation was de jure. But what about Seattle's? Was it de facto? De jure? A mixture? Opinions differed. Or is it that a prior federal court had not adjudicated the matter? Does that make a difference? Is Seattle free on remand to say that its schools were de jure segregated, just as in 1956 a memo for the School Board admitted? The plurality does not seem confident as to the answer. Compare ante, at ____, 168 L. Ed. 2d, at 523 (opinion of the Court) ("[T]he Seattle public schools have never shown that they were ever segregated by law" (emphasis added)), with ante at ____ - ____, 168 L. Ed. 2d, at 533-534 (plurality opinion) (assuming "the Seattle school district [***219] was never segregated by law," but seeming to concede that a school district with de jure segregation need not be subject to a court order to be allowed to engage in race-based remedial measures).

A court finding of de jure segregation cannot be the crucial variable. After all, a number of school districts in the South that the Government or private plaintiffs challenged as segregated by law voluntarily desegregated their schools without a court order--just as Seattle did. See, e.g., Coleman, Desegregation of the Public Schools in Kentucky--The Second Year After the Supreme Court's Decision, 25 J. Negro Educ. 254, 256, 261 (1956) (40 of Kentucky's 180 school districts began desegregation without court orders); Branton, Little Rock Revisited: Desegregation to Resegregation, 52 J. Negro Educ. 250, 251 (1983) (similar in Arkansas); Bullock & Rodgers, Coercion to Compliance: Southern School Districts and School [**587] Desegregation Guidelines, 38 J. Politics 987, 991 (1976) (similar in Georgia); McDaniel v. Barresi, 402 U.S. 39, 40, n. 1, 91 S. Ct. 1287, 28 L. Ed. 2d 582 (1971) (Clarke County, Georgia). See also Letter from Robert F. Kennedy, [***220] Attorney General, to John F. Kennedy, President (Jan. 24, 1963) (hereinafter Kennedy Report), available at http://www.gilderlehrman.org/ search/collection_pdfs/05/63/0/05630. pdf (all Internet materials as visited June 26, 2007, and [*2811] available in Clerk of Court's case file) (reporting successful efforts by the Government to induce voluntary desegregation).

Moreover, Louisville's history makes clear that a community under a court order to desegregate might submit a race-conscious remedial plan before the court dissolved the order, but with every intention of following that plan even after dissolution. How could such a plan be lawful the day before dissolution but then become unlawful the very next day? On what legal ground can the majority rest its contrary view? But see ante, at ____ - ____, ____, n 12, 168 L. Ed. 2d, at 523-524, 526.

Are courts really to treat as merely de facto segregated those school districts that avoided a federal order by voluntarily complying with Brown's requirements? See id., at ____, ____ - ____, 168 L. Ed. 2d, at 523, 533-534. This Court has previously done just the opposite, permitting a race-conscious remedy without any kind of court decree. See [***221] McDaniel, supra, at 41, 91 S. Ct. 1287, 28 L. Ed. 2d 582. Because the Constitution emphatically does not forbid the use of race-conscious measures by districts in the South that voluntarily desegregated their schools, on what basis does the plurality claim that the law forbids Seattle to do the same? But see ante, at ____, 168 L. Ed. 2d, at 533.

The histories also indicate the complexity of the tasks and the practical difficulties that local school boards face when they seek to achieve greater racial integration. The boards work in communities where demographic patterns change, where they must meet traditional learning goals, where they must attract and retain effective teachers, where they should (and will) take account of parents' views and maintain their commitment to public school education, where they must adapt to court intervention, where they must encourage voluntary student and parent action--where they will find that their own good faith, their knowledge, and their understanding of local circumstances are always necessary but often insufficient to solve the problems at hand.

These facts and circumstances help explain why in this context, as to means, the law often [***222] leaves legislatures, city councils, school boards, and voters with a broad range of choice, thereby giving "different communities" the opportunity to "try different solutions to common problems and gravitate toward those that prove most successful or seem to them best to suit their individual needs." Comfort v. Lynn School Comm., 418 F.3d 1, 28 (CA1 2005) (Boudin, C. J., concurring) (citing United States v. Lopez, 514 U.S. 549, 581, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995) (Kennedy, J., concurring)), cert. denied, 546 U.S. 1061, 126 S. Ct. 798, 163 L. Ed. 2d 627 (2005).

With this factual background in mind, I turn to the legal question: Does the United States Constitution prohibit these school boards from using [**588] race-conscious criteria in the limited ways at issue here?

II

The Legal Standard

A longstanding and unbroken line of legal authority tells us that the Equal Protection Clause permits local school boards to use race-conscious criteria to achieve positive race-related goals, even when the Constitution does not compel it. Because of its importance, I shall repeat what this [***223] Court said about the matter in Swann. Chief Justice Burger, on behalf of a unanimous Court in a case of exceptional importance, wrote:
"School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a [*2812] pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities." 402 U.S., at 16, 91 S. Ct. 1267, 28 L. Ed. 2d 554.
The statement was not a technical holding in the case. But the Court set forth in Swann a basic principle of constitutional law--a principle of law that has found "wide acceptance in the legal culture." Dickerson v. United States, 530 U.S. 428, 443, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000) (internal quotation marks omitted); Mitchell v. United States, 526 U.S. 314, 330, 119 S. Ct. 1307, 143 L. Ed. 2d 424 (1999); [***224] id., at 331, 332, 119 S. Ct. 1307, 143 L. Ed. 2d 424 (Scalia, J., dissenting) (citing "'wide acceptance in the legal culture'" as "adequate reason not to overrule" prior cases).

Thus, in North Carolina Bd. of Ed. v. Swann, 402 U.S. 43, 45, 91 S. Ct. 1284, 28 L. Ed. 2d 586 (1971), this Court, citing Swann, restated the point. "[S]chool authorities," the Court said, "have wide discretion in formulating school policy, and . . . as a matter of educational policy school authorities may well conclude that some kind of racial balance in the schools is desirable quite apart from any constitutional requirements." Then-Justice Rehnquist echoed this view in Bustop, Inc. v. Los Angeles Bd. of Ed., 439 U.S. 1380, 1383, 99 S. Ct. 40, 58 L. Ed. 2d 88 (1978) (opinion in chambers), making clear that he too believed that Swann's statement reflected settled law: "While I have the gravest doubts that [a state supreme court] was required by the United States Constitution to take the [desegregation] action that it has taken in this case, I have very little doubt that it was permitted by that Constitution to take such action." (Emphasis [***225] in original.)

These statements nowhere suggest that this freedom is limited to school districts where court-ordered desegregation measures are also in effect. Indeed, in McDaniel, a case decided the same day as Swann, a group of parents challenged a race-conscious student assignment plan that the Clarke County School Board had voluntarily adopted as a remedy without a court order (though under federal agency pressure--pressure Seattle also encountered). The plan required that each elementary school in the district maintain 20% to 40% enrollment of African-American students, corresponding to the racial composition of the district. See Barresi v. Browne, 226 Ga. 456, 456-459, 175 [**589] S. E. 2d 649, 650-651 (1970). This Court upheld the plan, see McDaniel, 402 U.S., at 41, 91 S. Ct. 1287, 28 L. Ed. 2d 582, rejecting the parents' argument that "a person may not be included or excluded solely because he is a Negro or because he is white." Brief for Respondents in McDaniel, O. T. 1970, No. 420, p 25.

Federal authorities had claimed --as the NAACP and the OCR did in Seattle--that Clarke County schools were segregated [***226] in law, not just in fact. The plurality's claim that Seattle was "never segregated by law" is simply not accurate. Compare ante, at ____, 168 L. Ed. 2d, at 533, with supra, at ____ - ____, 168 L. Ed. 2d, at 578-580. The plurality could validly claim that no court ever found that Seattle schools were segregated in law. But that is also true of the Clarke County schools in McDaniel. Unless we believe that the Constitution enforces one legal standard for the South and another for the North, this Court should grant Seattle the permission it granted Clarke County, Georgia. See McDaniel, 402 U.S., at 41, 91 S. Ct. 1287, 28 L. Ed. 2d 582 ("[S]teps will almost invariably require that students be assigned 'differently because of their race.' . . . Any other approach would freeze the status quo that is the very target of all desegregation processes.").

[*2813] This Court has also held that school districts may be required by federal statute to undertake race-conscious desegregation efforts even when there is no likelihood that de jure segregation can be shown. In Board of Ed. of City School Dist. of New York v. Harris, 444 U.S. 130, 148-149, 100 S. Ct. 363, 62 L. Ed. 2d 275 (1979) [***227] , the Court concluded that a federal statute required school districts receiving certain federal funds to remedy faculty segregation, even though in this Court's view the racial disparities in the affected schools were purely de facto and would not have been actionable under the Equal Protection Clause. Not even the dissenters thought the race-conscious remedial program posed a constitutional problem. See id., at 152, 100 S. Ct. 363, 62 L. Ed. 2d 275 (opinion of Stewart, J.). See also, e.g., Crawford v. Board of Ed. of Los Angeles, 458 U.S. 527, 535-536, 102 S. Ct. 3211, 73 L. Ed. 2d 948 (1982) ("[S]tate courts of California continue to have an obligation under state law to order segregated school districts to use voluntary desegregation techniques, whether or not there has been a finding of intentional segregation. . . . [S]chool districts themselves retain a state-law obligation to take reasonably feasible steps to desegregate, and they remain free to adopt reassignment and busing plans to effectuate desegregation" (emphasis added)); [***228] School Comm. of Boston v. Board of Education, 389 U.S. 572, 88 S. Ct. 692, 19 L. Ed. 2d 778 (1968) (per curiam) (dismissing for want of a federal question a challenge to a voluntary statewide integration plan using express racial criteria).