Home / News / (2007) Parents Involved in Community Schools v. Seattle School District No. 1 •

(2007) Parents Involved in Community Schools v. Seattle School District No. 1 •

May 27, 2023May 27, 2023

Primary Documents:(Slip Opinion)

December 4, 2006, ArguedJune 28, 2007, * Decided

SYLLABUS: Respondent schooldistricts voluntarily adopted student assignment plans that rely on race todetermine which schools certain children may attend. The Seattle district,which has never operated legally segregated schools or been subject tocourt-ordered desegregation, classified children as white or nonwhite, and usedthe racial classifications as a "tiebreaker" to allocate slots inparticular high schools. The Jefferson County, Ky., district was subjectto [*2] a desegregation decree until 2000, when the District Courtdissolved the decree after finding that the district had eliminated thevestiges of prior segregation to the greatest extent practicable. In 2001, thedistrict adopted its plan classifying students as black or "other" inorder to make certain elementary school assignments and to rule on transferrequests.

Petitioners, an organization of Seattle parents (Parents Involved) and themother of a Jefferson County student (Joshua), whose children were or could beassigned under the foregoing plans, filed these suits contending, interalia, that allocating children to different public schools based solely ontheir race violates the Fourteenth Amendment's equal protection guarantee. Inthe Seattle case, the District Court granted the school district summaryjudgment, finding, inter alia, that its plan survived strict scrutiny onthe federal constitutional claim because it was narrowly tailored to serve acompelling government interest. The Ninth Circuit affirmed. In the JeffersonCounty case, the District Court found that the school district had asserted acompelling interest in maintaining racially diverse schools,and [*3] that its plan was, in all relevant respects, narrowlytailored to serve that interest. The Sixth Circuit affirmed.

Held: The judgments are reversed, and the cases are remanded.

No. 05-908, 426 F.3d 1162; No. 05-915, 416 F.3d 513, reversed and remanded.

THE CHIEF JUSTICE delivered the opinion of the Court with respect to Parts I,II, III-A, and III-C, concluding:

1. The Court has jurisdiction in these cases. Seattle argues that ParentsInvolved lacks standing because its current members’ claimed injuries are notimminent and are too speculative in that, even if the district maintains itscurrent plan and reinstitutes the racial tiebreaker, those members will only beaffected if their children seek to enroll in a high school that isoversubscribed and integration positive. This argument is unavailing; thegroup's members have children in all levels of the district's schools, and thecomplaint sought declaratory and injunctive relief on behalf of members whose elementaryand middle school children may be denied admission to the high schools of theirchoice in the future. The fact that those children may not be denied suchadmission based [*4] on their race because of undersubscription oroversubscription that benefits them does not eliminate the injury claimed. Thegroup also asserted an interest in not being forced to compete in a race-basedsystem that might prejudice its members’ children, an actionable form of injuryunder the Equal Protection Clause, see, e.g., Adarand Constructors, Inc.v. Pena, 515 U.S. 200, 211, 115 S. Ct. 2097, 132 L. Ed. 2d 158. The factthat Seattle has ceased using the racial tiebreaker pending the outcome here isnot dispositive, since the district vigorously defends its program's constitutionality,and nowhere suggests that it will not resume using race to assign students ifit prevails. See Friends of Earth, Inc. v. Laidlaw EnvironmentalServices (TOC), Inc., 528 U.S. 167, 189, 120 S. Ct. 693, 145 L. Ed. 2d 610.Similarly, the fact that Joshua has been granted a transfer does not eliminatethe Court's jurisdiction; Jefferson County's racial guidelines apply at allgrade levels and he may again be subject to race-based assignment in middleschool. Pp. 9-11.

2. The school districts have not carried their heavy burden of showing that theinterest they seek to achieve justifies the extreme means they have chosen —[*5] discriminating among individual students based on race byrelying upon racial classifications in making school assignments. Pp. 11-17,25-28.

(a) Because "racial classifications are simply too pernicious to permitany but the most exact connection between justification andclassification," Fullilove v. Klutznick, 448 U.S. 448, 537,100 S. Ct. 2758, 65 L. Ed. 2d 902 (STEVENS, J., dissenting), governmentaldistributions of burdens or benefits based on individual racial classificationsare reviewed under strict scrutiny, e.g., Johnson v. California,543 U.S. 499, 505-506, 125 S. Ct. 1141, 160 L. Ed. 2d 949. Thus, the schooldistricts must demonstrate that their use of such classifications is"narrowly tailored" to achieve a "compelling" governmentinterest. Adarand, supra, at 227, 211, 115 S. Ct. 2097, 132 L. Ed. 2d158.

Although remedying the effects of past intentional discrimination is acompelling interest under the strict scrutiny test, see Freeman v. Pitts,503 U.S. 467, 494, 112 S. Ct. 1430, 118 L. Ed. 2d 108, that interest is notinvolved here because the Seattle schools were never segregated by law norsubject to court-ordered desegregation, and the desegregation decree to whichthe Jefferson County schools were previously subject has [*6] beendissolved. Moreover, these cases are not governed by Grutter v. Bollinger,539 U.S. 306, 328, 123 S. Ct. 2325, 156 L. Ed. 2d 304, in which the Court heldthat, for strict scrutiny purposes, a government interest in student bodydiversity "in the context of higher education" is compelling. Thatinterest was not focused on race alone but encompassed "all factors thatmay contribute to student body diversity," id., at 337, 123 S. Ct.2325, 156 L. Ed. 2d 304, including, e.g., having "overcome personaladversity and family hardship," id., at 338, 123 S. Ct. 2325, 156L. Ed. 2d 304. Quoting Justice Powell's articulation of diversity in Regentsof the University of California v. Bakke, 438 U.S. 265, 314-315, 98S. Ct. 2733, 57 L. Ed. 2d 750, the Grutter Court noted that "‘it isnot an interest in simple ethnic diversity, in which a specified percentage ofthe student body is in effect guaranteed to be members of selected ethnicgroups,’ that can justify the use of race," 539 U.S., at 324-325, 123 S.Ct. 2325, 156 L. Ed. 2d 304, but "‘a far broader array of qualificationsand characteristics of which racial or ethnic origin is but a single thoughimportant element, ‘" id., at 325, 123 S. Ct. 2325, 156 L. Ed. 2d304. In the present cases, by contrast, race is not considered as partof [*7] a broader effort to achieve "exposure to widely diversepeople, cultures, ideas, and viewpoints," id., at 330, 123 S. Ct.2325, 156 L. Ed. 2d 304; race, for some students, is determinative standingalone. The districts argue that other factors, such as student preferences,affect assignment decisions under their plans, but under each plan when racecomes into play, it is decisive by itself. It is not simply one factor weighedwith others in reaching a decision, as in Grutter; it is thefactor. See Gratz v. Bollinger, 539 U.S. 244, 275, 123 S. Ct.2411, 156 L. Ed. 2d 257. Even as to race, the plans here employ only a limitednotion of diversity, viewing race exclusively in white/nonwhite terms inSeattle and black/"other" terms in Jefferson County. The GrutterCourt expressly limited its holding — defining a specific type of broad-baseddiversity and noting the unique context of higher education — but theselimitations were largely disregarded by the lower courts in extending Grutterto the sort of classifications at issue here. Pp. 11-17.

(b) Despite the districts’ assertion that they employed individual racialclassifications in a way necessary to achieve their stated ends, the minimaleffect [*8] these classifications have on student assignmentssuggests that other means would be effective. Seattle's racial tiebreakerresults, in the end, only in shifting a small number of students betweenschools. Similarly, Jefferson County admits that its use of racialclassifications has had a minimal effect, and claims only that its guidelinesprovide a firm definition of the goal of racially integrated schools, therebyproviding administrators with authority to collaborate with principals andstaff to maintain schools within the desired range. Classifying and assigningschoolchildren according to a binary conception of race is an extreme approachin light of this Court's precedents and the Nation's history of using race inpublic schools, and requires more than such an amorphous end to justify it. In Grutter,in contrast, the consideration of race was viewed as indispensable in more thantripling minority representation at the law school there at issue. See 539U.S., at 320, 123 S. Ct. 2325, 156 L. Ed. 2d 304. While the Court does notsuggest that greater use of race would be preferable, the minimal impactof the districts’ racial classifications on school enrollment casts doubt onthe necessity of [*9] using such classifications. The districts havealso failed to show they considered methods other than explicit racialclassifications to achieve their stated goals. Narrow tailoring requires"serious, good faith consideration of workable race-neutralalternatives," id., at 339, 123 S. Ct. 2325, 156 L. Ed. 2d 304, andyet in Seattle several alternative assignment plans — many of which would nothave used express racial classifications — were rejected with little or noconsideration. Jefferson County has failed to present any evidence that itconsidered alternatives, even though the district already claims that its goalsare achieved primarily through means other than the racial classifications. Pp.25-28.

THE CHIEF JUSTICE, joined by JUSTICE SCALIA, JUSTICE THOMAS, and JUSTICE ALITO,concluded for additional reasons in Parts III-B and IV that the plans at issueare unconstitutional under this Court's precedents. Pp. 17-25, 28-41.

1. The Court need not resolve the parties’ dispute over whether racialdiversity in schools has a marked impact on test scores and other objectiveyardsticks or achieves intangible socialization benefits because it is clearthat the racial classifications at issue [*10] are not narrowly tailoredto the asserted goal. In design and operation, the plans are directed only toracial balance, an objective this Court has repeatedly condemned asillegitimate. They are tied to each district's specific racial demographics,rather than to any pedagogic concept of the level of diversity needed to obtainthe asserted educational benefits. Whatever those demographics happen to bedrives the required "diversity" number in each district. Thedistricts offer no evidence that the level of racial diversity necessary toachieve the asserted educational benefits happens to coincide with the racialdemographics of the respective districts, or rather the districts’white/nonwhite or black/"other" balance, since that is the onlydiversity addressed by the plans. In Grutter, the number of minoritystudents the school sought to admit was an undefined "meaningfulnumber" necessary to achieve a genuinely diverse student body, 539 U.S.,at 316, 335-336, 123 S. Ct. 2325, 156 L. Ed. 2d 304, and the Court concludedthat the law school did not count back from its applicant pool to arrive atthat number, id., at 335-336, 123 S. Ct. 2325, 156 L. Ed. 2d 304. Here,in contrast, the schools worked backward to achieve aparticular [*11] type of racial balance, rather than working forwardfrom some demonstration of the level of diversity that provides the purportedbenefits. This is a fatal flaw under the Court's existing precedent. See, e.g.,Freeman, supra, at 494, 112 S. Ct. 1430, 118 L. Ed. 2d 108. Acceptingracial balancing as a compelling state interest would justify imposing racialproportionality throughout American society, contrary to the Court's repeatedadmonitions that this is unconstitutional. While the school districts usevarious verbal formulations to describe the interest they seek to promote —racial diversity, avoidance of racial isolation, racial integration — theyoffer no definition suggesting that their interest differs from racialbalancing. Pp. 17-25.

2. If the need for the racial classifications embraced by the school districtsis unclear, even on the districts’ own terms, the costs are undeniable.Government action dividing people by race is inherently suspect because suchclassifications promote "notions of racial inferiority and lead to a politicsof racial hostility," Croson, supra, at 493, 109 S. Ct. 706,102 L. Ed. 2d 854, "reinforce the belief, held by too many for too much ofour history, that individuals [*12] should be judged by the color oftheir skin," Shaw v. Reno, 509 U.S. 630, 657, 113 S. Ct.2816, 125 L. Ed. 2d 511, and "endorse race-based reasoning and theconception of a Nation divided into racial blocs, thus contributing to anescalation of racial hostility and conflict," Metro Broadcasting, Inc.v. FCC, 497 U.S. 547, 603, 110 S. Ct. 2997, 111 L. Ed. 2d 445 (O’Connor,J., dissenting). 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, the Court held that segregation deprivedblack children of equal educational opportunities regardless of whether schoolfacilities and other tangible factors were equal, because the classificationand separation themselves denoted inferiority. Id., at 493-494, 74 S.Ct. 686, 98 L. Ed. 873. It was not the inequality of the facilities but thefact of legally separating children based on race on which the Court relied tofind a constitutional violation in that case. Id., at 494, 74 S. Ct.686, 98 L. Ed. 873. The districts here invoke the ultimate goal of those whofiled Brown and subsequent cases to support their argument, but theargument of the plaintiff in Brown was that the Equal ProtectionClause [*13] "prevents states from according differentialtreatment to American children on the basis of their color or race," andthat view prevailed — this Court ruled in its remedial opinion that Brown requiredschool districts "to achieve a system of determining admission to thepublic schools on a nonracial basis." Brown v. Board ofEducation, 349 U.S. 294, 300-301, 75 S. Ct. 753, 99 L. Ed. 1083, 71 OhioLaw Abs. 584 (emphasis added). Pp. 28-41.

JUSTICE KENNEDY agreed that the Court has jurisdiction to decide these casesand that respondents’ student assignment plans are not narrowly tailored toachieve the compelling goal of diversity properly defined, but concluded thatsome parts of the plurality opinion imply an unyielding insistence that racecannot be a factor in instances when it may be taken into account. Pp. 1-9.

(a) As part of its burden of proving that racial classifications are narrowlytailored to further compelling interests, the government must establish, indetail, how decisions based on an individual student's race are made in achallenged program. The Jefferson County Board of Education fails to meet thisthreshold mandate when it concedes it denied Joshua's requested kindergartentransfer [*14] on the basis of his race under its guidelines, yetalso maintains that the guidelines do not apply to kindergartners. Thisdiscrepancy is not some simple and straightforward error that touches only uponthe peripheries of the district's use of individual racial classifications. Asbecomes clearer when the district's plan is further considered, JeffersonCounty has explained how and when it employs these classifications only interms so broad and imprecise that they cannot withstand strict scrutiny. In itsbriefing it fails to make clear — even in the limited respects implicated byJoshua's initial assignment and transfer denial — whether in fact it relies onracial classifications in a manner narrowly tailored to the interest inquestion, rather than in the far-reaching, inconsistent, and ad hocmanner that a less forgiving reading of the record would suggest. When a courtsubjects governmental action to strict scrutiny, it cannot construe ambiguitiesin favor of the government. In the Seattle case, the school district has gonefurther in describing the methods and criteria used to determine assignmentdecisions based on individual racial classifications, but it hasnevertheless [*15] failed to explain why, in a district composed ofa diversity of races, with only a minority of the students classified as"white," it has employed the crude racial categories of"white" and "non-white" as the basis for its assignmentdecisions. Far from being narrowly tailored, this system threatens to defeatits own ends, and the district has provided no convincing explanation for itsdesign. Pp. 2-6.

(b) The plurality opinion is too dismissive of government's legitimate interestin ensuring that all people have equal opportunity regardless of their race. Inadministering public schools, it is permissible to consider the schools’ racialmakeup and adopt general policies to encourage a diverse student body, oneaspect of which is its racial composition. Cf. Grutter v. Bollinger,539 U.S. 306, 123 S. Ct. 2325, 156 L. Ed. 2d 304. School authorities concernedthat their student bodies’ racial compositions interfere with offering an equaleducational opportunity to all are free to devise race-conscious measures toaddress the problem in a general way and without treating each student indifferent fashion based solely on a systematic, individual typing by race. Suchmeasures may include strategic [*16] site selection of new schools;drawing attendance zones with general recognition of neighborhood demographics;allocating resources for special programs; recruiting students and faculty in atargeted fashion; and tracking enrollments, performance, and other statisticsby race.

Each respondent has failed to provide the necessary support for the propositionthat there is no other way than individual racial classifications to avoidracial isolation in their school districts. Cf. Richmond v. J. A.Croson Co., 488 U.S. 469, 501, 109 S. Ct. 706, 102 L. Ed. 2d 854. In thesecases, the fact that the number of students whose assignment depends on expressracial classifications is small suggests that the schools could have achievedtheir stated ends through different means, including the facially race-neutralmeans set forth above or, if necessary, a more nuanced, individual evaluationof school needs and student characteristics that might include race as acomponent. The latter approach would be informed by Grutter, though thecriteria relevant to student placement would differ based on the students’ age,the parents’ needs, and the schools’ role. Pp. 6-9.

JUDGES: ROBERTS, C. J., announced the judgment [*17] of theCourt and delivered the opinion of the Court with respect to Parts I, II, III-A,and III-C, in which SCALIA, KENNEDY, THOMAS, and ALITO, JJ., joined, and anopinion with respect to Parts III-B and IV, in which SCALIA, THOMAS, and ALITO,JJ., joined. THOMAS, J., filed a concurring opinion. KENNEDY, J., filed anopinion concurring in part and concurring in the judgment. STEVENS, J., filed adissenting opinion. BREYER, J., filed a dissenting opinion, in which STEVENS,SOUTER, and GINSBURG, JJ., joined.


OPINION: CHIEF JUSTICE ROBERTS announced the judgment of the Court,and delivered the opinion of the Court with respect to Parts I, II, III-A, andIII-C, and an opinion with respect to Parts III-B and IV, in which JUSTICESSCALIA, THOMAS, and ALITO join.

The school districts in these cases voluntarily adopted student assignmentplans that rely upon race to determine which public schools certain childrenmay attend. The Seattle school district classifies children as white ornonwhite; the Jefferson County school district as black or "other."In Seattle, this racial classification is used to allocate slots inoversubscribed high schools. In Jefferson County, it is used [*18]to make certain elementary school assignments and to rule on transfer requests.In each case, the school district relies upon an individual student's race inassigning that student to a particular school, so that the racial balance atthe school falls within a predetermined range based on the racial compositionof the school district as a whole. Parents of students denied assignment toparticular schools under these plans solely because of their race brought suit,contending that allocating children to different public schools on the basis ofrace violated the Fourteenth Amendment guarantee of equal protection. TheCourts of Appeals below upheld the plans. We granted certiorari, and nowreverse.


Both cases present the same underlying legal question — whether a publicschool that had not operated legally segregated schools or has been found to beunitary may choose to classify students by race and rely upon thatclassification in making school assignments. Although we examine the plansunder the same legal framework, the specifics of the two plans, and thecircumstances surrounding their adoption, are in some respects quite different.


Seattle School District No. 1 operates [*19] 10 regular public highschools. In 1998, it adopted the plan at issue in this case for assigningstudents to these schools. App. in No. 05-908, pp. 90a-92a. n1 The plan allowsincoming ninth graders to choose from among any of the district's high schools,ranking however many schools they wish in order of preference.

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n1 The plan was in effect from 1999-2002, for three school years. Thislitigation was commenced in July 2000, and the record in the District Court wasclosed before assignments for the 2001-2002 school year were made. See Brieffor Respondents in No. 05-908, p. 9, n. 9. We rely, as did the lower courts,largely on data from the 2000-2001 school year in evaluating the plan. See 426F.3d 1162, 1169-1171 (CA9 2005) (en banc) (Parents Involved VII).– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

Some schools are more popular than others. If too many students list the sameschool as their first choice, the district employs a series of"tiebreakers" to determine who will fill the open slots at theoversubscribed school. The first tiebreaker [*20] selects foradmission students who have a sibling currently enrolled in the chosen school.The next tiebreaker depends upon the racial composition of the particularschool and the race of the individual student. In the district's public schoolsapproximately 41 percent of enrolled students are white; the remaining 59percent, comprising all other racial groups, are classified by Seattle forassignment purposes as nonwhite. Id., at 38a, 103a. n2 If anoversubscribed school is not within 10 percentage points of the district'soverall white/nonwhite racial balance, it is what the district calls"integration positive," and the district employs a tiebreaker thatselects for assignment students whose race "will serve to bring the schoolinto balance." Id., at 38a. See Parents Involved VII, 426F.3d 1162, 1169-1170 (CA9 2005) (en banc). n3 If it is still necessary toselect students for the school after using the racial tiebreaker, the nexttiebreaker is the geographic proximity of the school to the student'sresidence. App. in No. 05-908, at 38a.

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n2 The racial breakdown of this nonwhite group is approximately 23.8 percentAsian-American, 23.1 percent African-American, 10.3 percent Latino, and 2.8percent Native-American. See 377 F.3d 949, 1005-1006 (CA9 2004) (ParentsInvolved VI) (Graber, J., dissenting). [*21]n3 For the 2001-2002 school year, the deviation permitted from the desiredracial composition was increased from 10 to 15 percent. App. in No. 05-908, p.38a. The bulk of the data in the record was collected using the 10 percentband, see n. 1, supra.– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

Seattle has never operated segregated schools — legally separate schools forstudents of different races — nor has it ever been subject to court-ordereddesegregation. It nonetheless employs the racial tiebreaker in an attempt toaddress the effects of racially identifiable housing patterns on schoolassignments. Most white students live in the northern part of Seattle, moststudents of other racial backgrounds in the southern part. Parents InvolvedVII, supra, at 1166. Four of Seattle's high schools are located inthe north — Ballard, Nathan Hale, Ingraham, and Roosevelt — and five in thesouth — Rainier Beach, Cleveland, West Seattle, Chief Sealth, and Franklin.One school — Garfield — is more or less in the center of Seattle. App. in No.05-908, at 38a-39a, 45a.

For the 2000-2001 school year, five of these schools [*22] wereoversubscribed — Ballard, Nathan Hale, Roosevelt, Garfield, and Franklin — somuch so that 82 percent of incoming ninth graders ranked one of these schoolsas their first choice. Id., at 38a. Three of the oversubscribed schoolswere "integration positive" because the school's white enrollment theprevious school year was greater than 51 percent — Ballard, Nathan Hale, andRoosevelt. Thus, more nonwhite students (107, 27, and 82, respectively) whoselected one of these three schools as a top choice received placement at theschool than would have been the case had race not been considered, andproximity been the next tiebreaker. Id., at 39a-40a. Franklin was"integration positive" because its nonwhite enrollment the previousschool year was greater than 69 percent; 89 more white students were assignedto Franklin by operation of the racial tiebreaker in the 2000-2001 school yearthan otherwise would have been. Ibid. Garfield was the onlyoversubscribed school whose composition during the 1999-2000 school year waswithin the racial guidelines, although in previous years Garfield's enrollmenthad been predominantly nonwhite, and the racial tiebreaker had beenused [*23] to give preference to white students. Id., at 39a.

Petitioner Parents Involved in Community Schools (Parents Involved) is anonprofit corporation comprising the parents of children who have been or maybe denied assignment to their chosen high school in the district because oftheir race. The concerns of Parents Involved are illustrated by Jill Kurfirst,who sought to enroll her ninth-grade son, Andy Meeks, in Ballard High School'sspecial Biotechnology Career Academy. Andy suffered from attention deficithyperactivity disorder and dyslexia, but had made good progress with hands-oninstruction, and his mother and middle school teachers thought that the smallerbiotechnology program held the most promise for his continued success. Andy wasaccepted into this selective program but, because of the racial tiebreaker, wasdenied assignment to Ballard High School. Id., at 143a-146a, 152a-160a.Parents Involved commenced this suit in the Western District of Washington,alleging that Seattle's use of race in assignments violated the EqualProtection Clause of the Fourteenth Amendment, n4 Title VI of the Civil RightsAct of 1964, n5 and the Washington Civil Rights Act. n6 Id., [*24]at 28a-35a.

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n4 "No State shall . . . deny to any person within its jurisdiction theequal protection of the laws." U.S. Const., Amdt. 14, § 1.

n5 "No person in the United States shall, on the ground of race . . . bedenied the benefits of, or be subjected to discrimination under any program oractivity receiving Federal financial assistance." 78 Stat. 252, 42 U.S.C.§ 2000d.

n6 "The state shall not discriminate against, or grant preferentialtreatment to, any individual or group on the basis of race, sex, color,ethnicity, or national origin in the operation of public employment, publiceducation, or public contracting." Wash. Rev. Code § 49.60.400(1) (2006).– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

The District Court granted summary judgment to the school district, findingthat state law did not bar the district's use of the racial tiebreaker and thatthe plan survived strict scrutiny on the federal constitutional claim becauseit was narrowly tailored to serve a compelling government interest. 137 F.Supp. 2d 1224, 1240 (WD Wash. 2001) [*25] (Parents Involved I).The Ninth Circuit initially reversed based on its interpretation of the WashingtonCivil Rights Act, 285 F.3d 1236, 1253 (2002) (Parents Involved II), andenjoined the district's use of the integration tiebreaker, id., at 1257.Upon realizing that the litigation would not be resolved in time for assignmentdecisions for the 2002-2003 school year, the Ninth Circuit withdrew itsopinion, 294 F.3d 1084 (2002) (Parents Involved III), vacated theinjunction, and, pursuant to Wash. Rev. Code § 2.60.020 (2006), certified thestate-law question to the Washington Supreme Court, 294 F.3d 1085, 1087 (2002)(Parents Involved IV).

The Washington Supreme Court determined that the State Civil Rights Act barsonly preferential treatment programs "where race or gender is used bygovernment to select a less qualified applicant over a more qualified applicant,"and not "programs which are racially neutral, such as the [district's]open choice plan." Parents Involved in Community Schools v. SeattleSchool Dist., No. 1, 149 Wn. 2d 660, 689-690, 663, 72 P. 3d 151, 166, 153(2003) (en banc) [*26] (Parents Involved V). The state courtreturned the case to the Ninth Circuit for further proceedings. Id., at690, 72 P. 3d, at 167.

A panel of the Ninth Circuit then again reversed the District Court, this timeruling on the federal constitutional question. Parents Involved VI, 377F.3d 949 (2004). The panel determined that while achieving racial diversity andavoiding racial isolation are compelling government interests, id., at964, Seattle's use of the racial tiebreaker was not narrowly tailored toachieve these interests, id., at 980. The Ninth Circuit grantedrehearing en banc, 395 F.3d 1168 (2005), and overruled the panel decision,affirming the District Court's determination that Seattle's plan was narrowlytailored to serve a compelling government interest, Parents Involved VII,426 F.3d at 1192-1193. We granted certiorari. 547 U.S. , 126S. Ct. 2351, 165 L. Ed. 2d 277 (2006).


Jefferson County Public Schools operates the public school system inmetropolitan Louisville, Kentucky. In 1973 a federal court found that JeffersonCounty had maintained a segregated school system, Newburg Area Council, Inc.v. Board of Ed. of Jefferson Cty., 489 F.2d 925, 932(CA6) [*27] , vacated and remanded, 418 U.S. 918, 94 S. Ct. 3208, 94S. Ct. 3209, reinstated with modifications, 510 F.2d 1358, 1359 (CA6 1974), andin 1975 the District Court entered a desegregation decree. See Hamptonv. Jefferson Cty. Bd. of Ed., 72 F. Supp. 2d 753, 762-764 (WD Ky. 1999).Jefferson County operated under this decree until 2000, when the District Courtdissolved the decree after finding that the district had achieved unitarystatus by eliminating "to the greatest extent practicable" thevestiges of its prior policy of segregation. Hampton v. JeffersonCty. Bd. of Ed., 102 F. Supp. 2d 358, 360 (2000). See Board of Ed. ofOklahoma City Public Schools v. Dowell, 498 U.S. 237, 249-250, 111S. Ct. 630, 112 L. Ed. 2d 715 (1991); Green v. County School Board,391 U.S. 430, 435-436, 88 S. Ct. 1689, 20 L. Ed. 2d 716 (1968).

In 2001, after the decree had been dissolved, Jefferson County adopted thevoluntary student assignment plan at issue in this case. App. in No. 05-915, p.77. Approximately 34 percent of the district's 97,000 students are black; mostof the remaining 66 percent are white. McFarland v. Jefferson Cty.Public Schools, 330 F. Supp. 2d 834, 839-840, and n. 6 (WD Ky.2004) [*28] (McFarland I). The plan requires all nonmagnetschools to maintain a minimum black enrollment of 15 percent, and a maximumblack enrollment of 50 percent. App. in No. 05-915, at 81; McFarland I, supra,at 842.

At the elementary school level, based on his or her address, each student isdesignated a "resides" school to which students within a specificgeographic area are assigned; elementary resides schools are "grouped intoclusters in order to facilitate integration." App. in No. 05-915, at 82.The district assigns students to nonmagnet schools in one of two ways: Parentsof kindergartners, first-graders, and students new to the district may submitan application indicating a first and second choice among the schools withintheir cluster; students who do not submit such an application are assignedwithin the cluster by the district. "Decisions to assign students toschools within each cluster are based on available space within the schools andthe racial guidelines in the District's current student assignment plan." Id.,at 38. If a school has reached the "extremes of the racialguidelines," a student whose race would contribute to the school'sracial [*29] imbalance will not be assigned there. Id., at38-39, 82. After assignment, students at all grade levels are permitted toapply to transfer between nonmagnet schools in the district. Transfers may berequested for any number of reasons, and may be denied because of lack ofavailable space or on the basis of the racial guidelines. Id., at 43. n7

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n7 Middle and high school students are designated a single resides school andassigned to that school unless it is at the extremes of the racial guidelines.Students may also apply to a magnet school or program, or, at the high schoollevel, take advantage of an open enrollment plan that allows ninth-gradestudents to apply for admission to any nonmagnet high school. App. in No.05-915, pp. 39-41, 82-83.– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

When petitioner Crystal Meredith moved into the school district in August 2002,she sought to enroll her son, Joshua McDonald, in kindergarten for the2002-2003 school year. His resides school was only a mile from his new home,but it had no available space — [*30] assignments had been made inMay, and the class was full. Jefferson County assigned Joshua to another elementaryschool in his cluster, Young Elementary. This school was 10 miles from home,and Meredith sought to transfer Joshua to a school in a different cluster,Bloom Elementary, which — like his resides school — was only a mile fromhome. See Tr. in McFarland I, pp. 1-49 through 1-54 (Dec. 8, 2003).Space was available at Bloom, and intercluster transfers are allowed, butJoshua's transfer was nonetheless denied because, in the words of JeffersonCounty, "the transfer would have an adverse effect on desegregation compliance"of Young. App. in No. 05-915, at 97. n8

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n8 It is not clear why the racial guidelines were even applied to Joshua'stransfer application — the guidelines supposedly do not apply at thekindergarten level. Id., at 43. Neither party disputes, however, thatJoshua's transfer application was denied under the racial guidelines, andMeredith's objection is not that the guidelines were misapplied but rather thatrace was used at all.– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –– [*31]

Meredith brought suit in the Western District of Kentucky, alleging violationsof the Equal Protection Clause of the Fourteenth Amendment. The District Courtfound that Jefferson County had asserted a compelling interest in maintainingracially diverse schools, and that the assignment plan was (in all relevantrespects) narrowly tailored to serve that compelling interest. McFarland I,supra, at 837. n9 The Sixth Circuit affirmed in a per curiamopinion relying upon the reasoning of the District Court, concluding that awritten opinion "would serve no useful purpose." McFarland v. JeffersonCty. Public Schools, 416 F.3d 513, 514 (2005) (McFarland II). Wegranted certiorari. 547 U.S. , 126 S. Ct. 2351, 165 L. Ed. 2d277 (2006).

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n9 Meredith joined a pending lawsuit filed by several other plaintiffs. See id.,at 7-11. The other plaintiffs all challenged assignments to certain specializedschools, and the District Court found these assignments, which are no longer atissue in this case, unconstitutional. McFarland I, 330 F. Supp. 2d 834,837, 864 (WD Ky. 2004).– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –– [*32]


As a threshold matter, we must assure ourselves of our jurisdiction. Seattleargues that Parents Involved lacks standing because none of its current memberscan claim an imminent injury. Even if the district maintains the current planand reinstitutes the racial tiebreaker, Seattle argues, Parents Involvedmembers will only be affected if their children seek to enroll in a Seattlepublic high school and choose an oversubscribed school that is integrationpositive — too speculative a harm to maintain standing. Brief for Respondentsin No. 05-908, pp. 16-17.

This argument is unavailing. The group's members have children in thedistrict's elementary, middle, and high schools, App. in No. 05-908, at299a-301a; Affidavit of Kathleen Brose Pursuant to this Court's Rule 32.3(Lodging of Petitioner Parents Involved), and the complaint sought declaratoryand injunctive relief on behalf of Parents Involved members whose elementaryand middle school children may be "denied admission to the high schools oftheir choice when they apply for those schools in the future," App. in No.05-908, at 30a. The fact that it is possible that children of group memberswill not be denied admission to [*33] a school based on their race— because they choose an undersubscribed school or an oversubscribed school inwhich their race is an advantage — does not eliminate the injury claimed.Moreover, Parents Involved also asserted an interest in not being "forcedto compete for seats at certain high schools in a system that uses race as adeciding factor in many of its admissions decisions." Ibid. As wehave held, one form of injury under the Equal Protection Clause is being forcedto compete in a race-based system that may prejudice the plaintiff, AdarandConstructors, Inc. v. Pena, 515 U.S. 200, 211, 115 S. Ct. 2097, 132L. Ed. 2d 158 (1995); Northeastern Fla. Chapter, Associated Gen. Contractorsof America v. Jacksonville, 508 U.S. 656, 666, 113 S. Ct. 2297, 124L. Ed. 2d 586 (1993), an injury that the members of Parents Involved canvalidly claim on behalf of their children.

In challenging standing, Seattle also notes that it has ceased using the racialtiebreaker pending the outcome of this litigation. Brief for Respondents in No.05-908, at 16-17. But the district vigorously defends the constitutionality ofits race-based program, and nowhere suggests that if this litigation isresolved in its favor it will [*34] not resume using race to assignstudents. Voluntary cessation does not moot a case or controversy unless"subsequent events make it absolutely clear that the allegedly wrongfulbehavior could not reasonably be expected to recur," Friends of Earth,Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167,189, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000) (quoting United States v. ConcentratedPhosphate Export Ass’n, 393 U.S. 199, 203, 89 S. Ct. 361, 21 L. Ed. 2d 344(1968) (internal quotation marks omitted)), a heavy burden that Seattle hasclearly not met.

Jefferson County does not challenge our jurisdiction, Tr. of Oral Arg. in No.05-915, p. 48, but we are nonetheless obliged to ensure that it exists, Arbaughv. Y & H Corp., 546 U.S. 500, 514, 126 S. Ct. 1235, 163 L. Ed. 2d1097 (2006). Although apparently Joshua has now been granted a transfer to Bloom,the school to which transfer was denied under the racial guidelines, Tr. ofOral Arg. in No. 05-915, at 45, the racial guidelines apply at all gradelevels. Upon Joshua's enrollment in middle school, he may again be subject toassignment based on his race. In addition, Meredith sought damages in hercomplaint, which is sufficient to preserve our ability toconsider [*35] the question. Los Angeles v. Lyons, 461U.S. 95, 109, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983).



It is well established that when the government distributes burdens or benefitson the basis of individual racial classifications, that action is reviewedunder strict scrutiny. Johnson v. California, 543 U.S. 499,505-506, 125 S. Ct. 1141, 160 L. Ed. 2d 949 (2005); Grutter v. Bollinger,539 U.S. 306, 326, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (2003); Adarand, supra,at 224, 115 S. Ct. 2097, 132 L. Ed. 2d 158. As the Court recently reaffirmed,"‘racial classifications are simply too pernicious to permit any but themost exact connection between justification and classification.'" Gratzv. Bollinger, 539 U.S. 244, 270, 123 S. Ct. 2411, 156 L. Ed. 2d 257(2003) (quoting Fullilove v. Klutznick, 448 U.S. 448, 537, 100 S.Ct. 2758, 65 L. Ed. 2d 902 (1980) (STEVENS, J., dissenting); brackets omitted).In order to satisfy this searching standard of review, the school districtsmust demonstrate that the use of individual racial classifications in theassignment plans here under review is "narrowly tailored" to achievea "compelling" government interest. Adarand, supra, at227, 115 S. Ct. 2097, 132 L. Ed. 2d 158.

Without attempting in these cases to set forth all the interests a schooldistrict [*36] might assert, it suffices to note that our priorcases, in evaluating the use of racial classifications in the school context,have recognized two interests that qualify as compelling. The first is thecompelling interest of remedying the effects of past intentionaldiscrimination. See Freeman v. Pitts, 503 U.S. 467, 494, 112 S.Ct. 1430, 118 L. Ed. 2d 108 (1992). Yet the Seattle public schools have notshown that they were ever segregated by law, and were not subject tocourt-ordered desegregation decrees. The Jefferson County public schools werepreviously segregated by law and were subject to a desegregation decree enteredin 1975. In 2000, the District Court that entered that decree dissolved it,finding that Jefferson County had "eliminated the vestiges associated withthe former policy of segregation and its pernicious effects," and thus hadachieved "unitary" status. Hampton, 102 F. Supp. 2d, at 360.Jefferson County accordingly does not rely upon an interest in remedying theeffects of past intentional discrimination in defending its present use of racein assigning students. See Tr. of Oral Arg. in No. 05-915, at 38.

Nor could it. We have emphasized that the harm being [*37] remediedby mandatory desegregation plans is the harm that is traceable to segregation,and that "the Constitution is not violated by racial imbalance in theschools, without more." Milliken v. Bradley, 433 U.S. 267,280, n. 14, 97 S. Ct. 2749, 53 L. Ed. 2d 745 (1977). See also Freeman, supra,at 495-496, 112 S. Ct. 1430, 118 L. Ed. 2d 108; Dowell, 498 U.S., at248, 111 S. Ct. 630, 112 L. Ed. 2d 715; Milliken v. Bradley, 418U.S. 717, 746, 94 S. Ct. 3112, 41 L. Ed. 2d 1069 (1974). Once Jefferson Countyachieved unitary status, it had remedied the constitutional wrong that allowedrace-based assignments. Any continued use of race must be justified on someother basis. n10

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n10 The districts point to dicta in a prior opinion in which the Courtsuggested that, while not constitutionally mandated, it would beconstitutionally permissible for a school district to seek racially balancedschools as a matter of "educational policy." See Swann v. Charlotte-MecklenburgBd. of Ed., 402 U.S. 1, 16, 91 S. Ct. 1267, 28 L. Ed. 2d 554 (1971). Thedistricts also quote with approval an in-chambers opinion in which then-JusticeRehnquist made a suggestion to the same effect. See Bustop, Inc. v. LosAngeles Bd. of Ed., 439 U.S. 1380, 1383, 99 S. Ct. 40, 58 L. Ed. 2d 88(1978). The citations do not carry the significance the districts would ascribeto them. Swann, evaluating a school district engaged in court-ordereddesegregation, had no occasion to consider whether a district's voluntaryadoption of race-based assignments in the absence of a finding of prior dejure segregation was constitutionally permissible, an issue that was againexpressly reserved 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). Bustop,addressing in the context of an emergency injunction application a busing planimposed by the Superior Court of Los Angeles County, is similarly unavailing.Then-Justice Rehnquist, in denying emergency relief, stressed that"equitable considerations" counseled against preliminary relief. 439U.S., at 1383, 99 S. Ct. 40, 58 L. Ed. 2d 88. The propriety of preliminaryrelief and resolution of the merits are of course "significantlydifferent" issues. University of Texas v. Camenisch, 451U.S. 390, 393, 101 S. Ct. 1830, 68 L. Ed. 2d 175 (1981).– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [*38]

The second government interest we have recognized as compelling for purposes ofstrict scrutiny is the interest in diversity in higher education upheld in Grutter,539 U.S., at 328, 123 S. Ct. 2325, 156 L. Ed. 2d 304. The specific interestfound compelling in Grutter was student body diversity "in thecontext of higher education." Ibid. The diversity interest was notfocused on race alone but encompassed "all factors that may contribute tostudent body diversity." Id., at 337, 123 S. Ct. 2325, 156 L. Ed.2d 304. We described the various types of diversity that the law school sought:

"[The law school's]policy makes clear there are many possible bases for diversity admissions, andprovides examples of admittees who have lived or traveled widely abroad, arefluent in several languages, have overcome personal adversity and familyhardship, have exceptional records of extensive community service, and have hadsuccessful careers in other fields." Id., at 338, 123 S. Ct. 2325,156 L. Ed. 2d 304 (brackets and internal quotation marks omitted).

The Court quoted the articulation of diversity from Justice Powell's opinion inRegents of the University of California v. Bakke, 438 U.S. 265,98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978), noting [*39] that "itis not an interest in simple ethnic diversity, in which a specified percentageof the student body is in effect guaranteed to be members of selected ethnicgroups, that can justify the use of race." Grutter, supra,at 324-325, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (citing and quoting Bakke,supra, at 314-315, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (opinion of Powell,J.); brackets and internal quotation marks omitted). Instead, what was upheldin Grutter was consideration of "a far broader array ofqualifications and characteristics of which racial or ethnic origin is but asingle though important element." 539 U.S., at 325, 123 S. Ct. 2325, 156L. Ed. 2d 304 (quoting Bakke, supra, at 315, 98 S. Ct. 2733, 57L. Ed. 2d 750 (opinion of Powell, J.); internal quotation marks omitted).

The entire gist of the analysis in Grutter was that the admissionsprogram at issue there focused on each applicant as an individual, and notsimply as a member of a particular racial group. The classification ofapplicants by race upheld in Grutter was only as part of a "highlyindividualized, holistic review," 539 U.S., at 337, 123 S. Ct. 2325, 156L. Ed. 2d 304. As the Court explained, "the importance of thisindividualized consideration in the context of a race-conscious admissions [*40]program is paramount." Ibid. The point of the narrow tailoringanalysis in which the Grutter Court engaged was to ensure that the useof racial classifications was indeed part of a broader assessment of diversity,and not simply an effort to achieve racial balance, which the Court explainedwould be "patently unconstitutional." Id., at 330, 123 S. Ct.2325, 156 L. Ed. 2d 304.

In the present cases, by contrast, race is not considered as part of a broadereffort to achieve "exposure to widely diverse people, cultures, ideas, andviewpoints," ibid.; race, for some students, is determinativestanding alone. The districts argue that other factors, such as studentpreferences, affect assignment decisions under their plans, but under each planwhen race comes into play, it is decisive by itself. It is not simply onefactor weighed with others in reaching a decision, as in Grutter; it is thefactor. Like the University of Michigan undergraduate plan struck down in Gratz,539 U.S., at 275, 123 S. Ct. 2411, 156 L. Ed. 2d 257, the plans here "donot provide for a meaningful individualized review of applicants" butinstead rely on racial classifications in a "nonindividualized,mechanical" way. Id., at 276, 280, 123 S. Ct. 2411, 156 L. Ed. 2d257 [*41] (O’Connor, J., concurring).

Even when it comes to race, the plans here employ only a limited notion ofdiversity, viewing race exclusively in white/nonwhite terms in Seattle andblack/"other" terms in Jefferson County. n11 But see MetroBroadcasting, Inc. v. FCC, 497 U.S. 547, 610, 110 S. Ct. 2997, 111L. Ed. 2d 445 (1990) ("We are a Nation not of black and white alone, butone teeming with divergent communities knitted together with various traditionsand carried forth, above all, by individuals") (O’Connor, J., dissenting).The Seattle "Board Statement Reaffirming Diversity Rationale" speaksof the "inherent educational value" in "providing students theopportunity to attend schools with diverse student enrollment," App. inNo. 05-908, at 128a, 129a. But under the Seattle plan, a school with 50 percentAsian-American students and 50 percent white students but no African-American,Native-American, or Latino students would qualify as balanced, while a schoolwith 30 percent Asian-American, 25 percent African-American, 25 percent Latino,and 20 percent white students would not. It is hard to understand how a planthat could allow these results can be viewed as being concerned with achievingenrollment [*42] that is "‘broadly diverse,'" Grutter,supra, at 329, 123 S. Ct. 2325, 156 L. Ed. 2d 304.

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n11 The way Seattle classifies its students bears this out. Upon enrollingtheir child with the district, parents are required to identify their child asa member of a particular racial group. If a parent identifies more than onerace on the form, "the application will not be accepted and, if necessary,the enrollment service person taking the application will indicate onebox." App. in No. 05-908, at 303a.– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

Prior to Grutter, the courts of appeals rejected as unconstitutionalattempts to implement race-based assignment plans — such as the plans at issuehere — in primary and secondary schools. See, e.g., Eisenberg v. MontgomeryCty. Public Schools, 197 F.3d 123, 133 (CA4 1999); Tuttle v. ArlingtonCty. School Bd., 195 F.3d 698, 701 (CA4 1999); Wessmann v. Gittens,160 F.3d 790, 809 (CA1 1998). See also Ho v. San Francisco UnifiedSchool Dist., 147 F.3d 854, 865 (CA9 1998). [*43] After Grutter,however, the two Courts of Appeals in these cases, and one other, found thatrace-based assignments were permissible at the elementary and secondary level,largely in reliance on that case. See Parents Involved VII, 426 F.3d at1166; McFarland II, 416 F.3d at 514; Comfort v. Lynn SchoolComm., 418 F.3d 1, 13 (CA1 2005).

In upholding the admissions plan in Grutter, though, this Court reliedupon considerations unique to institutions of higher education, noting that inlight of "the expansive freedoms of speech and thought associated with theuniversity environment, universities occupy a special niche in ourconstitutional tradition." 539 U.S., at 329, 334, 123 S. Ct. 2325, 156 L.Ed. 2d 304. See also Bakke, supra, at 312, 313, 98 S. Ct. 2733,57 L. E. 2d 750 (opinion of Powell, J.). The Court explained that "contextmatters" in applying strict scrutiny, and repeatedly noted that it wasaddressing the use of race "in the context of higher education." Grutter,supra, at 327, 328, 334, 123 S. Ct. 2325, 156 L. Ed. 2d 304. The Courtin Grutter expressly articulated key limitations on its holding —defining a specific type of broad-based diversity and notingthe [*44] unique context of higher education — but theselimitations were largely disregarded by the lower courts in extending Grutterto uphold race-based assignments in elementary and secondary schools. Thepresent cases are not governed by Grutter.


Perhaps recognizing that reliance on Grutter cannot sustain their plans,both school districts assert additional interests, distinct from the interestupheld in Grutter, to justify their race-based assignments. In briefingand argument before this Court, Seattle contends that its use of race helps toreduce racial concentration in schools and to ensure that racially concentratedhousing patterns do not prevent nonwhite students from having access to themost desirable schools. Brief for Respondents in No. 05-908, at 19. JeffersonCounty has articulated a similar goal, phrasing its interest in terms ofeducating its students "in a racially integrated environment." No. 05-915, at 22. n12 Each school district argues that educational andbroader socialization benefits flow from a racially diverse learning environment,and each contends that because the diversity they seek is racial diversity —not the broader diversity [*45] at issue in Grutter — itmakes sense to promote that interest directly by relying on race alone.

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n12 Jefferson County also argues that it would be incongruous to hold that whatwas constitutionally required of it one day — race-based assignments pursuantto the desegregation decree — can be constitutionally prohibited the next. Butwhat was constitutionally required of the district prior to 2000 was theelimination of the vestiges of prior segregation — not racial proportionalityin its own right. See Freeman v. Pitts, 503 U.S. 467, 494-496,112 S. Ct. 1430, 118 L. Ed. 2d 108 (1992). Once those vestiges were eliminated,Jefferson County was on the same footing as any other school district, and itsuse of race must be justified on other grounds.– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

The parties and their amici dispute whether racial diversity in schoolsin fact has a marked impact on test scores and other objective yardsticks orachieves intangible socialization benefits. The debate is not one we need toresolve, however, because it is clear that the [*46] racialclassifications employed by the districts are not narrowly tailored to the goalof achieving the educational and social benefits asserted to flow from racialdiversity. In design and operation, the plans are directed only to racialbalance, pure and simple, an objective this Court has repeatedly condemned asillegitimate.

The plans are tied to each district's specific racial demographics, rather thanto any pedagogic concept of the level of diversity needed to obtain theasserted educational benefits. In Seattle, the district seeks white enrollmentof between 31 and 51 percent (within 10 percent of "the district whiteaverage" of 41 percent), and nonwhite enrollment of between 49 and 69percent (within 10 percent of "the district minority average" of 59percent). App. in No. 05-908, at 103a. In Jefferson County, by contrast, thedistrict seeks black enrollment of no less than 15 or more than 50 percent, arange designed to be "equally above and below Black student enrollmentsystemwide," McFarland I, 330 F. Supp. 2d, at 842, based on theobjective of achieving at "all schools . . . an African-Americanenrollment equivalent to the average district-wideAfrican-American [*47] enrollment" of 34 percent. App. in No.05-915, at 81. In Seattle, then, the benefits of racial diversity requireenrollment of at least 31 percent white students; in Jefferson County, at least50 percent. There must be at least 15 percent nonwhite students under JeffersonCounty's plan; in Seattle, more than three times that figure. This comparisonmakes clear that the racial demographics in each district — whatever theyhappen to be — drive the required "diversity" numbers. The planshere are not tailored to achieving a degree of diversity necessary to realizethe asserted educational benefits; instead the plans are tailored, in the wordsof Seattle's Manager of Enrollment Planning, Technical Support, andDemographics, to "the goal established by the school board of attain-ing alevel of diversity within the schools that approximates the district's overalldemographics." App. in No. 05-908, at 42a.

The districts offer no evidence that the level of racial diversity necessary toachieve the asserted educational benefits happens to coincide with the racialdemographics of the respective school districts — or rather the white/nonwhiteor black/"other" balance of the districts, since [*48]that is the only diversity addressed by the plans. Indeed, in its brief Seattlesimply assumes that the educational benefits track the racial breakdown of thedistrict. See Brief for Respondents in No. 05-908, at 36 ("For Seattle,‘racial balance’ is clearly not an end in itself but rather a measure of theextent to which the educational goals the plan was designed to foster arelikely to be achieved"). When asked for "a range of percentage thatwould be diverse," however, Seattle's expert said it was important to have"sufficient numbers so as to avoid students feeling any kind of specter ofexceptionality." App. in No. 05-908, at 276a. The district did not attemptto defend the proposition that anything outside its range posed the"specter of exceptionality." Nor did it demonstrate in any way howthe educational and social benefits of racial diversity or avoidance of racialisolation are more likely to be achieved at a school that is 50 percent whiteand 50 percent Asian-American, which would qualify as diverse under Seattle'splan, than at a school that is 30 percent Asian-American, 25 percentAfrican-American, 25 percent Latino, and 20 percent white, which underSeattle's definition [*49] would be racially concentrated.

Similarly, Jefferson County's expert referred to the importance of having"at least 20 percent" minority group representation for the group"to be visible enough to make a difference," and noted that"small isolated minority groups in a school are not likely to have astrong effect on the overall school." App. in No. 05-915, at 159, 147. TheJefferson County plan, however, is based on a goal of replicating at eachschool "an African-American enrollment equivalent to the averagedistrict-wide African-American enrollment." Id., at 81. JoshuaMcDonald's requested transfer was denied because his race was listed as"other" rather than black, and allowing the transfer would have hadan adverse effect on the racial guideline compliance of Young Elementary, theschool he sought to leave. Id., at 21. At the time, however, YoungElementary was 46.8 percent black. Id., at 73. The transfer might havehad an adverse effect on the effort to approach district-wide racialproportionality at Young, but it had nothing to do with preventing either theblack or "other" group from becoming "small" or"isolated" at Young.

In fact, in each case the extreme measure [*50] of relying on racein assignments is unnecessary to achieve the stated goals, even as defined bythe districts. For example, at Franklin High School in Seattle, the racialtiebreaker was applied because nonwhite enrollment exceeded 69 percent, andresulted in an incoming ninth-grade class in 2000-2001 that was 30.3 percentAsian-American, 21.9 percent African-American, 6.8 percent Latino, 0.5 percentNative-American, and 40.5 percent Caucasian. Without the racial tiebreaker, theclass would have been 39.6 percent Asian-American, 30.2 percentAfrican-American, 8.3 percent Latino, 1.1 percent Native-American, and 20.8percent Caucasian. See App. in No. 05-908, at 308a. When the actual racialbreakdown is considered, enrolling students without regard to their race yieldsa substantially diverse student body under any definition of diversity. n13

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n13 Data for the Seattle schools in the several years since this litigation wascommenced further demonstrate the minimal role that the racial tiebreaker infact played. At Ballard, in 2005-2006 — when no class at the school wassubject to the racial tiebreaker — the student body was 14.2 percentAsian-American, 9 percent African-American, 11.7 percent Latino, 62.3 percentCaucasian, and 2.8 percent Native-American. Reply Brief for Petitioner in No.05-908, p. 7. In 2000-2001, when the racial tiebreaker was last used, Ballard'stotal enrollment was 17.5 percent Asian-American, 10.8 percentAfrican-American, 10.7 percent Latino, 56.4 percent Caucasian, and 4.6 percentNative-American. App. in No. 05-908, at 283a. Franklin in 2005-2006 was 48.9percent Asian-American, 33.5 percent African-American, 6.6 percent Latino, 10.2percent Caucasian, and 0.8 percent Native-American. Reply Brief for Petitionerin No. 05-908, at 7. With the racial tiebreaker in 2000-2001, total enrollmentwas 36.8 percent Asian-American, 32.2 percent African-American, 5.2 percentLatino, 25.1 percent Caucasian, and 0.7 percent Native-American. App. in No.05-908, at 284a. Nathan Hale's 2005-2006 enrollment was 17.3 percentAsian-American, 10.7 percent African-American, 8 percent Latino, 61.5 percentCaucasian, and 2.5 percent Native-American. Reply Brief for Petitioner in No.05-908, at 7. In 2000-2001, with the racial tiebreaker, it was 17.9 percentAsian-American, 13.3 percent African-American, 7 percent Latino, 58.4 percentCaucasian, and 3.4 percent Native-American. App. in No. 05-908, at 286a.– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [*51]

In Grutter, the number of minority students the school sought to admitwas an undefined "meaningful number" necessary to achieve a genuinelydiverse student body. 539 U.S., at 316, 335-336, 123 S. Ct. 2325, 156 L. Ed. 2d304. Although the matter was the subject of disagreement on the Court, see id.,at 346-347, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (SCALIA, J., concurring in partand dissenting in part); id., at 382-383, 123 S. Ct. 2325, 156 L. Ed. 2d304 (Rehnquist, C. J., dissenting); id., at 388-392, 123 S. Ct. 2325,156 L. Ed. 2d 304 (KENNEDY, J., dissenting), the majority concluded that thelaw school did not count back from its applicant pool to arrive at the"meaningful number" it regarded as necessary to diversify its studentbody. Id., at 335-336, 123 S. Ct. 2325, 156 L. Ed. 2d 304. Here theracial balance the districts seek is a defined range set solely by reference tothe demographics of the respective school districts.

This working backward to achieve a particular type of racial balance, ratherthan working forward from some demonstration of the level of diversity thatprovides the purported benefits, is a fatal flaw under our existing precedent.We have many times over reaffirmed that "racial balance is not to beachieved for its own sake." Freeman, 503 U.S., at 494, 112 S. Ct.1430, 118 L. Ed. 2d 108. [*52] See also Richmond v. J. A.Croson Co., 488 U.S. 469, 507, 109 S. Ct. 706, 102 L. Ed. 2d 854 (1989); Bakke,438 U.S., at 307, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (opinion of Powell, J.)("If petitioner's purpose is to assure within its student body somespecified percentage of a particular group merely because of its race or ethnicorigin, such a preferential purpose must be rejected . . . as faciallyinvalid"). Grutter itself reiterated that "outright racialbalancing" is "patently unconstitutional." 539 U.S., at 330, 123S. Ct. 2325, 156 L. Ed. 2d 304.

Accepting racial balancing as a compelling state interest would justify theimposition of racial proportionality throughout American society, contrary toour repeated recognition that "at the heart of the Constitution'sguarantee of equal protection lies the simple command that the Government musttreat citizens as individuals, not as simply components of a racial, religious,sexual or national class." Miller v. Johnson, 515 U.S. 900,911, 115 S. Ct. 2475, 132 L. Ed. 2d 762 (1995) (quoting Metro Broadcasting,497 U.S., at 602, 110 S. Ct. 2997, 111 L. Ed. 2d 445 (O’Connor, J.,dissenting); internal quotation marks omitted). n14 Allowing racial balancingas a compelling end in itself would "effectively assure thatrace [*53] will always be relevant in American life, and that the‘ultimate goal’ of ‘eliminating entirely from governmental decisionmaking suchirrelevant factors as a human being's race’ will never be achieved." Croson,supra, at 495, 109 S. Ct. 706, 102 L. Ed. 2d 854 (plurality opinion ofO’Connor, J.) (quoting Wygant v. Jackson Bd. of Ed., 476 U.S.267, 320, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (1986) (STEVENS, J., dissenting),in turn quoting Fullilove, 448 U.S., at 547, 100 S. Ct. 2758, 65 L. Ed.2d 902 (STEVENS, J., dissenting); brackets and citation omitted). An interest"linked to nothing other than proportional representation of various races. . . would support indefinite use of racial classifications, employed first toobtain the appropriate mixture of racial views and then to ensure that the[program] continues to reflect that mixture." Metro Broadcasting, supra,at 614, 110 S. Ct. 2997, 111 L. Ed 2d 445 (O’Connor, J., dissenting).

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n14 In contrast, Seattle's website formerly described "emphasizingindividualism as opposed to a more collective ideology" as a form of"cultural racism," and currently states that the district has nointention "to hold onto unsuccessful concepts such as [a] . . . colorblindmentality." Harrell, School Web Site Removed: Examples of Racism SparkedControversy, Seattle Post-Intelligencer, June 2, 2006, pp. B1, B5. Compare Plessyv. Ferguson, 163 U.S. 537, 559, 16 S. Ct. 1138, 41 L. Ed. 256 (1896)(Harlan, J., dissenting) ("Our Constitution is color-blind, and neitherknows nor tolerates classes among citizens. In respect of civil rights, allcitizens are equal before the law").– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –– [*54]

The validity of our concern that racial balancing has "no logical stoppingpoint," Croson, supra, at 498, 109 S. Ct. 706, 102 L. Ed. 2d854 (quoting Wygant, supra, at 275, 106 S. Ct. 1842, 90 L. Ed. 2d260 (plurality opinion); internal quotation marks omitted); see also Grutter,supra, at 343, 123 S. Ct. 2325, 156 L. Ed. 2d 304, is demonstrated here bythe degree to which the districts tie their racial guidelines to theirdemographics. As the districts’ demographics shift, so too will theirdefinition of racial diversity. See App. in No. 05-908, at 103a (describingapplication of racial tiebreaker based on "current whitepercentage" of 41 percent and "current minoritypercentage" of 59 percent (emphasis added)).

The Ninth Circuit below stated that it "shared in the hope" expressedin Grutter that in 25 years racial preferences would no longer benecessary to further the interest identified in that case. Parents InvolvedVII, 426 F.3d at 1192. But in Seattle the plans are defended as necessaryto address the consequences of racially identifiable housing patterns. Thesweep of the mandate claimed by the district is contrary to our rulings thatremedying past societal discrimination does not justify [*55]race-conscious government action. See, e.g., Shaw v. Hunt, 517U.S. 899, 909-910, 116 S. Ct. 1894, 135 L. Ed. 2d 207 (1996) ("An effortto alleviate the effects of societal discrimination is not a compellinginterest"); Croson, supra, at 498-499, 109 S. Ct. 706, 102L. Ed. 2d 854; Wygant, 476 U.S., at 276, 106 S. Ct. 1842, 90 L. Ed. 2d260 (plurality opinion) ("Societal discrimination, without more, is tooamorphous a basis for imposing a racially classified remedy"); id.,at 288, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (O’Connor, J., concurring in part andconcurring in judgment) ("[A] governmental agency's interest in remedying‘societal’ discrimination, that is, discrimination not traceable to its ownactions, cannot be deemed sufficiently compelling to pass constitutionalmuster").

The principle that racial balancing is not permitted is one of substance, notsemantics. Racial balancing is not transformed from "patentlyunconstitutional" to a compelling state interest simply by relabeling it"racial diversity." While the school districts use various verbalformulations to describe the interest they seek to promote — racial diversity,avoidance of racial isolation, racial integration — they offer no definitionof the interest that suggests it differs [*56] from racial balance.See, e.g., App. in No. 05-908, at 257a ("Q. What's yourunderstanding of when a school suffers from racial isolation? A. I don't have adefinition for that"); id., at 228a-229a ("I don't think we’veever sat down and said, ‘Define racially concentrated school exactly on pointin quantitative terms.’ I don't think we’ve ever had that conversation");Tr. in McFarland I, at 1-90 (Dec. 8, 2003) ("Q. How does theJefferson County School Board define diversity . . . ?" "A. Well, wewant to have the schools that make up the percentage of students of thepopulation").

Jefferson County phrases its interest as "racial integration," butintegration certainly does not require the sort of racial proportionalityreflected in its plan. Even in the context of mandatory desegregation, we havestressed that racial proportionality is not required, see Milliken, 433U.S., at 280, n. 14, 97 S. Ct. 2749, 53 L. Ed 2d 745 ("[A desegregation]order contemplating the substantive constitutional right [to a] particulardegree of racial balance or mixing is . . . infirm as a matter of law"(internal quotation marks omitted)); Swann v. Charlotte-MecklenburgBd. of Ed., 402 U.S. 1, 24, 91 S. Ct. 1267, 28 L. Ed. 2d 554(1971) [*57] ("The constitutional command to desegregateschools does not mean that every school in every community must always reflectthe racial composition of the school system as a whole"), and hereJefferson County has already been found to have eliminated the vestiges of itsprior segregated school system.

The en banc Ninth Circuit declared that "when a racially diverse schoolsystem is the goal (or racial concentration or isolation is the problem), thereis no more effective means than a consideration of race to achieve thesolution." Parents Involved VII, supra, at 1191. For theforegoing reasons, this conclusory argument cannot sustain the plans. Howeverclosely related race-based assignments may be to achieving racial balance, thatitself cannot be the goal, whether labeled "racial diversity" oranything else. To the extent the objective is sufficient diversity so thatstudents see fellow students as individuals rather than solely as members of aracial group, using means that treat students solely as members of a racialgroup is fundamentally at cross-purposes with that end.


The districts assert, as they must, that the way in which they have employedindividual [*58] racial classifications is necessary to achievetheir stated ends. The minimal effect these classifications have on studentassignments, however, suggests that other means would be effective. Seattle'sracial tiebreaker results, in the end, only in shifting a small number ofstudents between schools. Approximately 307 student assignments were affectedby the racial tiebreaker in 2000-2001; the district was able to track theenrollment status of 293 of these students. App. in No. 05-908, at 162a. Ofthese, 209 were assigned to a school that was one of their choices, 87 of whomwere assigned to the same school to which they would have been assigned withoutthe racial tiebreaker. Eighty-four students were assigned to schools that theydid not list as a choice, but 29 of those students would have been assigned totheir respective school without the racial tiebreaker, and 3 were able toattend one of the oversubscribed schools due to waitlist and capacityadjustments. Id., at 162a-163a. In over one-third of the assignmentsaffected by the racial tiebreaker, then, the use of race in the end made nodifference, and the district could identify only 52 students who wereultimately affected [*59] adversely by the racial tiebreaker in thatit resulted in assignment to a school they had not listed as a preference andto which they would not otherwise have been assigned.

As the panel majority in Parents Involved VI concluded:

"The tiebreaker'sannual effect is thus merely to shuffle a few handfuls of different minoritystudents between a few schools — about a dozen additional Latinos intoBallard, a dozen black students into Nathan Hale, perhaps two dozen Asians intoRoosevelt, and so on. The District has not met its burden of proving thesemarginal changes . . . outweigh the cost of subjecting hundreds of students todisparate treatment based solely upon the color of their skin." 377 F.3d at984-985 (footnote omitted).

Similarly, Jefferson County's use of racial classifications has only a minimaleffect on the assignment of students. Elementary school students are assignedto their first- or second-choice school 95 percent of the time, and transfers,which account for roughly 5 percent of assignments, are only denied 35 percentof the time — and presumably an even smaller percentage are denied on thebasis of the racial guidelines, given that other [*60] factors maylead to a denial. McFarland I, 330 F. Supp. 2d, at 844-845, nn. 16, 18.Jefferson County estimates that the racial guidelines account for only 3percent of assignments. Brief in Opposition in No. 05-915, p. 7, n. 4; Tr. ofOral Arg. in No. 05-915, at 46. As Jefferson County explains, "the racialguidelines have minimal impact in this process, because they ‘mostly influencestudent assignment in subtle and indirect ways.'" Brief for Respondents inNo. 05-915, pp. 8-9.

While we do not suggest that greater use of race would be preferable,the minimal impact of the districts’ racial classifications on schoolenrollment casts doubt on the necessity of using racial classifications. In Grutter,the consideration of race was viewed as indispensable in more than triplingminority representation at the law school — from 4 to 14.5 percent. See 539U.S., at 320, 123 S. Ct. 2325, 156 L. Ed. 2d 304. Here the most JeffersonCounty itself claims is that "because the guidelines provide a firmdefinition of the Board's goal of racially integrated schools, they ‘provideadministrators with the authority to facilitate, negotiate and collaborate withprincipals and staff to maintain schools [*61] within the 15-50%range.'" Brief in Opposition in No. 05-915, at 7 (quoting McFarland I,supra, at 842). Classifying and assigning schoolchildren according to abinary conception of race is an extreme approach in light of our precedents andour Nation's history of using race in public schools, and requires more thansuch an amorphous end to justify it.

The districts have also failed to show that they considered methods other thanexplicit racial classifications to achieve their stated goals. Narrow tailoringrequires "serious, good faith consideration of workable race-neutralalternatives," Grutter, supra, at 339, 123 S. Ct. 2325, 156 L. Ed.2d 304, and yet in Seattle several alternative assignment plans — many ofwhich would not have used express racial classifications — were rejected withlittle or no consideration. See, e.g., App. in No. 05-908, at 224a-225a,253a-259a, 307a. Jefferson County has failed to present any evidence that itconsidered alternatives, even though the district already claims that its goalsare achieved primarily through means other than the racial classifications.Brief for Respondents in No. 05-915, at 8-9. Compare Croson, 488 U.S.,at 519, 109 S. Ct. 706, 102 L. Ed. 2d 854 [*62] (KENNEDY, J.,concurring in part and concurring in judgment) (racial classificationspermitted only "as a last resort").


JUSTICE BREYER's dissent takes a different approach to these cases, one thatfails to ground the result it would reach in law. Instead, it selectivelyrelies on inapplicable precedent and even dicta while dismissing contraryholdings, alters and misapplies our well-established legal framework forassessing equal protection challenges to express racial classifications, andgreatly exaggerates the consequences of today's decision.

To begin with, JUSTICE BREYER seeks to justify the plans at issue under ourprecedents recognizing the compelling interest in remedying past intentionaldiscrimination. See post, at 18-24. Not even the school districts gothis far, and for good reason. The distinction between segregation by stateaction and racial imbalance caused by other factors has been central to ourjurisprudence 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, 503U.S., at 495-496, 112 S. Ct. 1430, 118 L. Ed. 2d 108 ("Where resegregationis a product not of state action but of private choices, it does not haveconstitutional [*63] implications"). The dissent elides thisdistinction between de jure and de facto segregation, casuallyintimates that Seattle's school attendance patterns reflect illegalsegregation, post, at 5, 18, 23, n15 and fails to credit the judicialdetermination — under the most rigorous standard — that Jefferson County hadeliminated the vestiges of prior segregation. The dissent thus alters infundamental ways not only the facts presented here but the established law.

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n15 JUSTICE BREYER makes much of the fact that in 1978 Seattle"settled" an NAACP complaint alleging illegal segregation with thefederal Office for Civil Rights (OCR). See post, at 5, 8-9, 18, 23. Thememorandum of agreement between Seattle and OCR, of course, contains noadmission by Seattle that such segregation ever existed or was ongoing at thetime of the agreement, and simply reflects a "desire to avoid the incovenience[sic] and expense of a formal OCR investigation," which OCR wasobligated under law to initiate upon the filing of such a complaint. Memorandumof 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).– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –– [*64]

JUSTICE BREYER's reliance on McDaniel v. Barresi, 402 U.S. 39, 91S. Ct. 1287, 28 L. Ed. 2d 582 (1971), post, at 23-24, 29-30, highlightshow far removed the discussion in the dissent is from the question actuallypresented in these cases. McDaniel concerned a Georgia school systemthat had been segregated by law. There was no doubt that the county hadoperated a "dual school system," McDaniel, supra, at41, 91 S. Ct. 1287, 28 L. Ed. 2d 582, and no one questions that the obligationto disestablish a school system segregated by law can include race-consciousremedies — whether or not a court had issued an order to that effect. See supra,at 12. The present cases are before us, however, because the Seattle schooldistrict was never segregated by law, and the Jefferson County district hasbeen found to be unitary, having eliminated the vestiges of its prior dualstatus. The justification for race-conscious remedies in McDaniel istherefore not applicable here. The dissent's persistent refusal to accept thisdistinction — its insistence on viewing the racial classifications here as ifthey were just like the ones in McDaniel, "devised to overcome ahistory of segregated public schools," [*65] post, at47 — explains its inability to understand why the remedial justification forracial classifications cannot decide these cases.

JUSTICE BREYER's dissent next relies heavily on dicta from Swann v. Charlotte-MecklenburgBd. of Ed., 402 U.S., at 16, 91 S. Ct. 1267, 28 L. Ed. 2d 554 — far moreheavily than the school districts themselves. Compare post, at 3, 22-28,with Brief for Respondents in No. 05-908, at 19-20; Brief for Respondents inNo. 05-915, at 31. The dissent acknowledges that the two-sentence discussion inSwann was pure dicta, post, at 22, but nonetheless asserts thatit demonstrates a "basic principle of constitutional law" thatprovides "authoritative legal guidance." Post, at 22, 30.Initially, as the Court explained just last Term, "we are not bound tofollow our dicta in a prior case in which the point now at issue was not fullydebated." Central Va. Community College v. Katz, 546 U.S.356, 363, 126 S. Ct. 990, 163 L. Ed. 2d 945 (2006). That is particularly truegiven that, when Swann was decided, this Court had not yet confirmedthat strict scrutiny applies to racial classifications like those before us. Seen. 16, infra. There is nothing "technical" or"theoretical, [*66] " post, at 30, about ourapproach 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.) (explainingwhy 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. Swannaddresses only a possible state objective; it says nothing of the permissible means— race conscious or otherwise — that a school district might employ toachieve that objective. The reason for this omission is clear enough, since thecase did not involve any voluntary means adopted by a school district. Thedissent's characterization of Swann as recognizing that "the EqualProtection Clause permits local school boards to use race-conscious criteria toachieve positive race-related goals" is — at best — a dubious inference.Post, at 22. Even if the dicta from Swann were entitled to theweight the dissent would give it, and no dicta is, it not only did not addressthe question presented in Swann, it also does not address the questionpresented in these cases — whether the school districts’ use of racialclassifications [*67] 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 arepertinent. Most are not. For example, the dissent features Tometz v. Boardof Ed., Waukegan City School Dist. No. 61, 39 Ill. 2d 593, 596-598, 237N.E.2d 498, 500-502 (1968), an Illinois decision, as evidence that "stateand federal courts had considered the matter settled and uncontroversial."Post, at 25. But Tometz addressed a challenge to a statuterequiring race-consciousness in drawing school attendance boundaries — anissue 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 legislativeclassification essentially is one of reasonableness"), which even thedissent grudgingly recognizes is an improper standard for evaluating expressracial classifications. Other cases cited are similarly inapplicable. See, e.g.,Citizens for Better Ed. v. Goose Creek Consol. Independent SchoolDist., 719 S.W.2d 350, 352-353 (Tex. App. 1986) [*68] (upholdingrezoning plan under rational-basis review). n16

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n16 In fact, all the cases JUSTICE BREYER's dissent cites as evidence of the"prevailing legal assumption," see post, at 25-27, weredecided before this Court definitively determined that "all racialclassifications . . . must be analyzed by a reviewing court under strictscrutiny." Adarand Constructors, Inc. v. Pena, 515 U.S. 200,227, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995). Many proceeded under thenow-rejected view that classifications seeking to benefit a disadvantagedracial group should be held to a lesser standard of review. See, e.g., SpringfieldSchool Comm. v. Barksdale, 348 F.2d 261, 266 (CA1 1965). Even ifthis purported distinction, which JUSTICE STEVENS would adopt, post, at2, n. 3 (dissenting opinion), had not been already rejected by this Court, thedistinction has no relevance to these cases, in which students of all races areexcluded from the schools they wish to attend based solely on the racialclassifications. See, e.g., App. in No. 05-908, at 202a (noting that 89nonwhite students were denied assignment to a particular school by operation ofSeattle'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 3-5, isinapposite for the same reason that many of the cases cited by JUSTICE BREYERare inapposite; the case involved a Massachusetts law that required schooldistricts to avoid racial imbalance in schools but did not specify how toachieve this goal — and certainly did not require express racialclassifications as the means to do so. The law was upheld under rational-basisreview, with the state court explicitly rejecting the suggestion — which isnow plainly the law — that "racial group classifications bear a farheavier burden of justification." 352 Mass., at 700, 227 N. E. 2d, at 734(internal quotation marks and citation omitted). The passage JUSTICE STEVENSquotes proves our point; all the quoted language says is that the schoolcommittee "shall prepare a plan to eliminate the imbalance." Id.,at 695, 227 N. E. 2d, at 731; see post, at 4, n. 5. Nothing in theopinion approves use of racial classifications as the means to address theimbalance. The suggestion that our decision today is somehow inconsistent withour disposition of that appeal is belied by the fact that neither the lowercourts, the respondent school districts, nor any of their 51 amici sawfit even to cite the case. We raise this fact not to argue that the dismissalshould be afforded any different stare decisis effect, but rather simplyto suggest that perhaps — for the reasons noted above — the dismissal doesnot mean what JUSTICE STEVENS believes it does.– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –– [*69]

JUSTICE BREYER's dissent next looks for authority to a footnote in Washingtonv. Seattle School Dist. No. 1, 458 U.S. 457, 472, n. 15, 102 S. Ct.3187, 73 L. Ed. 2d 896 (1982), post, at 56-57, but there this Courtexpressly noted that it was not passing on the propriety ofrace-conscious student assignments in the absence of a finding of de juresegregation. Similarly, the citation of Crawford v. Board of Ed. ofLos Angeles, 458 U.S. 527, 102 S. Ct. 3211, 73 L. Ed. 2d 948 (1982), post,at 24, in which a state referendum prohibiting a race-based assignment plan waschallenged, is inapposite — in Crawford the Court again expresslyreserved 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 analysesof course did not decide the merits of this question — as evidenced by thedisagreement among the lower courts on this issue. Compare Eisenberg,197 F.3d at 133, with 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 41,[*70] 64-66, and accusing us of tacitly overruling that case, see post,at 64-66. The dissent overreads Grutter, however, in suggesting that itrenders pure racial balancing a constitutionally compelling interest; Grutteritself 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 theinterest furthered in Grutter as "not an interest in simple ethnicdiversity" but rather a "far broader array of qualifications andcharacteristics" in which race was but a single element. 539 U.S., at324-325, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (internal quotation marks omitted).We take the Grutter Court at its word. We simply do not understand howJUSTICE BREYER can maintain that classifying every schoolchild as black orwhite, and using that classification as a determinative factor in assigningchildren to achieve pure racial balance, can be regarded as "lessburdensome, and hence more narrowly tailored" than the consideration ofrace in Grutter, post, at 47, when the Court in Grutterstated that "the importance of . . . individualized consideration" inthe program was [*71] "paramount," and consideration ofrace 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 theconstitutionality of the stark use of race in these cases were as establishedas the dissent would have it, there would have been no need for the extensiveanalysis undertaken in Grutter. In light of the foregoing, JUSTICEBREYER's appeal to stare decisis rings particularly hollow. See post,at 65-66.

At the same time it relies on inapplicable desegregation cases, misstatementsof admitted dicta, and other noncontrolling pronouncements, JUSTICE BREYER'sdissent candidly dismisses the significance of this Court's repeated holdingsthat all racial classifications must be reviewed under strict scrutiny, see post,at 31-33, 35-36, arguing that a different standard of review should be appliedbecause the districts use race for beneficent rather than malicious purposes,see post, at 31-36.

This Court has recently reiterated, however, that "‘all racialclassifications [imposed by government] . . . must be analyzed by a reviewingcourt under strict scrutiny.'" Johnson, 543 U.S., at 505, 125 S.Ct. 1141, 160 L. Ed. 2d 949 (quoting [*72] Adarand, 515 U.S.,at 227, 115 S. Ct. 2097, 132 L. Ed. 2d 158; emphasis added by JohnsonCourt). See also Grutter, supra, at 326, 123 S. Ct. 2325, 156 L.Ed. 2d 304 ("Governmental action based on race — a group classificationlong recognized as in most circumstances irrelevant and therefore prohibited —should be subjected to detailed judicial inquiry" (internal quotationmarks and emphasis omitted)). JUSTICE BREYER nonetheless relies on the goodintentions and motives of the school districts, stating that he has found"no case that . . . repudiated this constitutional asymmetry between thatwhich seeks to exclude and that which seeks to include members ofminority races." Post, at 29 (emphasis in original). We have foundmany. Our cases clearly reject the argument that motives affect the strictscrutiny 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, 515U.S., at 227, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (rejecting idea that"‘benign'" racial classifications may be held to "differentstandard"); Croson, 488 U.S., at 500, 109 S. Ct. 76, 102 L. Ed. 2d854 ("Racial classifications are suspect, and that meansthat [*73] simple legislative assurances of good intention cannotsuffice").

This argument that different rules should govern racial classificationsdesigned to include rather than exclude is not new; it has been repeatedlypressed 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); 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. 2d260 (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 toclassifications that disadvantage minorities, stating "racial and ethnicdistinctions of any sort are inherently suspect and thus call for the mostexacting judicial examination").

The reasons for rejecting a motives test for racial classifications are clearenough. "The Court's emphasis on ‘benign racial classifications’ suggestsconfidence in its ability to distinguish good from harmful governmental uses ofracial criteria. History should teach greater humility . . . . ‘Benign’carries [*74] with it no independent meaning, but reflects onlyacceptance of the current generation's conclusion that a politically acceptableburden, imposed on particular citizens on the basis of race, isreasonable." 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 ("‘It may not always be clearthat 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.))). AcceptingJUSTICE BREYER's approach would "do no more than move us from ‘separatebut 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 asidethe purely black-and-white nature of the plans), as the justification forexcluding individuals on the basis of their race. See post, at 28-29.Again, this approach to racial classifications is fundamentally at odds withour precedent, which makes clear that the Equal Protection Clause"protects persons, not groups," Adarand, 515U.S., at 227, 110 S. Ct. 2997, 111 L. Ed. 2d 445 (emphasis in original). See ibid.("All governmental [*75] action based on race — a groupclassification long recognized as ‘in most circumstances irrelevant andtherefore prohibited,’ Hirabayashi [v. United States, 320 U.S. 81, 100,63 S. Ct. 1375, 87 L. Ed. 1774 (1943)] — should be subjected to detailedjudicial inquiry to ensure that the personal right to equal protectionof the laws has not been infringed" (first emphasis in original); MetroBroadcasting, supra, at 636, 110 S. Ct. 2997, 111 L. Ed. 2d 445("Our Constitution protects each citizen as an individual, not as a memberof a group" (KENNEDY, J., dissenting)); Bakke, supra, at289, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (opinion of Powell, J.) (Fourteenth Amendmentcreates rights "guaranteed to the individual. The rights established arepersonal rights"). This fundamental principle goes back, in this context,to Brown itself. See Brown v. Board of Education, 349 U.S.294, 300, 75 S. Ct. 753, 99 L. Ed. 1083, 71 Ohio Law Abs. 584 (1955) (BrownII) ("At stake is the personal interest of the plaintiffs inadmission to public schools . . . on a nondiscriminatory basis" (emphasisadded)). For the dissent, in contrast, "‘individualized scrutiny’ issimply beside the point." Post, at 55.

JUSTICE BREYER's position comes down to a familiar [*76] claim: Theend justifies the means. He admits that "there is a cost in applying ‘astate-mandated racial label,'" post, at 67, but he is confidentthat the cost is worth paying. Our established strict scrutiny test for racialclassifications, however, insists on "detailed examination, both as toends and as to means." Adarand, supra, at 236, 110 S.Ct. 2997, 111 L. Ed. 2d 445 (emphasis added). Simply because the schooldistricts may seek a worthy goal does not mean they are free to discriminate onthe basis of race to achieve it, or that their racial classifications should besubject to less exacting scrutiny.

Despite his argument that these cases should be evaluated under a "standardof review that is not ‘strict’ in the traditional sense of that word," post,at 36, JUSTICE BREYER still purports to apply strict scrutiny to these cases.See post, at 37. It is evident, however, that JUSTICE BREYER's brand ofnarrow tailoring is quite unlike anything found in our precedents. Without anydetailed discussion of the operation of the plans, the students who areaffected, or the districts’ failure to consider race-neutral alternatives, thedissent concludes that the districts have shown [*77] that theseracial classifications are necessary to achieve the districts’ stated goals.This conclusion is divorced from any evaluation of the actual impact of theplans at issue in these cases — other than to note that the plans "oftenhave no effect." Post, at 46. n17 Instead, the dissent suggeststhat some combination of the development of these plans over time, thedifficulty of the endeavor, and the good faith of the districts suffices todemonstrate that these stark and controlling racial classifications areconstitutional. The Constitution and our precedents require more.

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n17 JUSTICE BREYER also tries to downplay the impact of the racial assignmentsby stating that in Seattle "students can decide voluntarily to transfer toa preferred district high school (without any consideration of race-consciouscriteria)." Post, at 46. This presumably refers to the district'sdecision to cease, for 2001-2002 school year assignments, applying the racialtiebreaker to students seeking to transfer to a different school after ninthgrade. See App. in No. 05-908, at 137a-139a. There are obvious disincentivesfor students to transfer to a different school after a full quarter of theirhigh school experience has passed, and the record sheds no light on howtransfers to the oversubscribed high schools are handled.– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –– [*78]

In keeping with his view that strict scrutiny should not apply, JUSTICE BREYERrepeatedly urges deference to local school boards on these issues. See, e.g.,post, at 21, 48-49, 66. Such deference "is fundamentally at oddswith our equal protection jurisprudence. We put the burden on state actors todemonstrate 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 racialclassifications in this country suggests that blind judicial deference tolegislative or executive pronouncements of necessity has no place in equalprotection analysis"); West Virginia Bd. of Ed. v. Barnette,319 U.S. 624, 637, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943) ("The FourteenthAmendment . . . protects the citizen against the State itself and all of itscreatures — Boards of Education not excepted").

JUSTICE BREYER's dissent ends on an unjustified note of alarm. It predicts thattoday's decision "threatens" the validity of "hundreds of stateand federal statutes and regulations." Post, at 61; see also post,at 27-28. But the examples the dissent mentions — for example, a provision ofthe No Child Left [*79] Behind Act that requires States to setmeasurable objectives to track the achievement of students from major racialand ethnic groups, 20 U.S.C. § 6311(b)(2)(C)(v) — have nothing to do with thepertinent issues in these cases.

JUSTICE BREYER also suggests that other means for achieving greater racialdiversity in schools are necessarily unconstitutional if the racialclassifications at issue in these cases cannot survive strict scrutiny. Post,at 58-62. These other means — e.g., where to construct new schools, howto allocate resources among schools, and which academic offerings to provide toattract students to certain schools — implicate different considerations thanthe explicit racial classifications at issue in these cases, and we express noopinion on their validity — not even in dicta. Rather, we employ the familiarand well-established analytic approach of strict scrutiny to evaluate the plansat issue today, an approach that in no way warrants the dissent's cataclysmicconcerns. Under that approach, the school districts have not carried theirburden of showing that the ends they seek justify the particular extreme meansthey have chosen [*80] — classifying individual students on thebasis of their race and discriminating among them on that basis.

* * *

If the need for the racial classifications embraced by the school districts isunclear, even on the districts’ own terms, the costs are undeniable."Distinctions between citizens solely because of their ancestry are bytheir very nature odious to a free people whose institutions are founded uponthe doctrine of equality." Adarand, 515 U.S., at 214, 115 S. Ct.2097, 132 L. Ed. 2d 158 (internal quotation marks omitted). Government actiondividing us by race is inherently suspect because such classifications promote"notions of racial inferiority and lead to a politics of racialhostility," Croson, supra, at 493, 109 S. Ct. 706, 102 L.Ed. 2d 854, "reinforce the belief, held by too many for too much of ourhistory, that individuals should be judged by the color of their skin," Shawv. 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 dividedinto racial blocs, thus contributing to an escalation of racial hostility andconflict." 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 Ricev. Cayetano, 528 U.S. 495, 517, 120 S. Ct. 1044, 145 L. Ed. 2d 1007(2000), [*81] "one of the principal reasons race is treated asa forbidden classification is that it demeans the dignity and worth of a personto be judged by ancestry instead of by his or her own merit and essentialqualities."

All this is true enough in the contexts in which these statements were made —government contracting, voting districts, allocation of broadcast licenses, andelecting state officers — but when it comes to using race to assign childrento 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 heldthat segregation deprived black children of equal educational opportunitiesregardless of whether school facilities and other tangible factors were equal,because government classification and separation on grounds of race themselvesdenoted inferiority. Id., at 493-494, 74 S. Ct. 686, 98 L. Ed. 873. Itwas not the inequality of the facilities but the fact of legally separatingchildren on the basis of race on which the Court relied to find aconstitutional 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 sanctionof the law'"). The next Term, we accordingly [*82] stated that"full compliance" with Brown I required school districts"to achieve a system of determining admission to the public schools ona 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 theheritage of Brown, but the position of the plaintiffs in Brownwas spelled out in their brief and could not have been clearer: "TheFourteenth Amendment prevents states from according differential treatment toAmerican children on the basis of their color or race." Brief forAppellants in Nos. 1, 2, and 4 and for Respondents in No. 10 on Reargument in BrownI, O. T. 1953, p. 15 (Summary of Argument). What do the racialclassifications at issue here do, if not accord differential treatment on thebasis of race? As counsel who appeared before this Court for the plaintiffs in Brownput it: "We have one fundamental contention which we will seek to developin the course of this argument, and that contention is that no State has anyauthority under the equal-protection clause of the Fourteenth Amendment to userace as a factor in affording educational opportunities among [*83]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 thatposition that prevailed in this Court, which emphasized in its remedial opinionthat what was "at stake is the personal interest of the plaintiffs inadmission to public schools as soon as practicable on a nondiscriminatorybasis," and what was required was "determining admission to thepublic schools on a nonracial basis." Brown II, supra,at 300-301, 75 S. Ct. 753, 99 L. Ed. 1083 (emphasis added). What do the racialclassifications do in these cases, if not determine admission to a publicschool on a racial basis?

Before Brown, schoolchildren were told where they could and could not goto school based on the color of their skin. The school districts in these caseshave not carried the heavy burden of demonstrating that we should allow thisonce again — even for very different reasons. For schools that neversegregated on the basis of race, such as Seattle, or that have removed thevestiges of past segregation, such as Jefferson County, the way "toachieve a system of determining admission to the public schools on a nonracialbasis," [*84] 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 wayto stop discrimination on the basis of race is to stop discriminating on thebasis of race.

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

It is so ordered.



Resegregation Trends

Percentage of Black Students in 90-100 Percent Nonwhite and MajorityNonwhite Public Schools by Region, 1950-1954 to 2000, Fall Enrollment


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

Changes in the Percentage of White Students in Schools Attended by theAverage Black Student by State, 1970-2003 (includes States with 5% or greaterenrollment of black students in 1970 and 1980)


Source: G. Orfield & C. Lee, Racial Transformation and the Changing Natureof Segregation 18 (Table 8) (Jan. 2006), (Civil Rights Project), online athttp://www.civilrightspro

Percentage [*85] of White Students in Schools Attended bythe Average Black Student, 1968-2000


Source: Modified from E. Frankenberg, C. Lee, & G. Orfield, A MultiracialSociety with Segregated Schools: Are We Losing the Dream?, p. 30, fig. 5 (Jan.2003), online at / reseg03 /Are WeLosingtheDream.pdf (Frankenberg, Lee, & Orfield)(using U.S. Dept. of Education and National Center for Education StatisticsCommon Core data).

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


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


Sources for Parts I-A and I-B

Part I-A: SeattleSection 1. SegregationP1 C. Schmid & W. McVey, Growth and Distribution of Minority Races inSeattle, Washington, 3, 7-9 (1964); F. Hanawalt & R. Williams, The Historyof Desegregation in Seattle Public Schools, 1954-1981, pp. 1-7 (1981)(hereinafter Hanawalt); Taylor, The Civil Rights Movement in the American West:Black Protest in Seattle, 1960-1970, 80 J. Negro Hist. 1, 2-3 (1995); A.Siqueland, Without A Court Order: The Desegregation of Seattle's Schools 10(1981) (hereinafter Siqueland); [*86] D. Pieroth, Desegregating thePublic Schools, Seattle, Washington, 1954-1968, p. 6 (Dissertation Draft 1979)(hereinafter Pieroth).

Section 2. Preliminary Challenges, 1956 to 1969P1 Pieroth 32, 41; Hanawalt 4.P2 Hanawalt 11-13.P3 Id., at 5, 13, 27.

Section 3. The NAACP's First Legal Challenge and Seattle's Response, 1969 to1977P1 Complaint in Adams v. Forbes Bottomly, Civ. No. 6704 (WDWash., 1969), pp. 10-11.P2 Id., at 10, 14-15.P3 Planning and Evaluation Dept., Seattle Public Schools, The Plan Adopted by theSeattle School Board to Desegregate Fifth, Sixth, Seventh, and Eighth GradePupils in the Garfield, Lincoln, and Roosevelt High School Districts bySeptember, 1971, pp. 6, 11 (on file with the University of Washington Library);see generally Siqueland 12-15; Hanawalt 18-20.

P4 Siqueland 5, 7, 21.Section 4. The NAACP's Second Legal Challenge, 1977P1 Administrative Complaint in Seattle Branch, NAACP v. SeattleSchool Dist. No. 1, pp. 2-3 (OCR, Apr. 22, 1977) (OCR Complaint) (filedwith Court as Exhibit in Seattle School Dist. No. 1, 458 U.S. 457, 102S. Ct. 3187, 73 L. Ed. 2d 896); see generally Siqueland [*87] 23-24.P2 Memorandum of Agreement between Seattle School District No. 1 of King Cty.,Washington, and the OCR (June 9, 1978) (filed with the Court as Exh. A to KinerAffidavit in Seattle School Dist. No. 1, supra.

Section 5. The Seattle Plan: Mandatory Busing, 1978 to 1988P1 See generally Seattle School Dist. No. 1, supra, at 461, 102S. Ct. 3187, 73 L. Ed. 2d 896; Seattle Public Schools Desegregation PlanningOffice, Proposed Alternative Desegregation Plans: Options for EliminatingRacial Imbalance by the 1979-80 School Year (Sept. 1977) (filed with the Courtas Exh. B to Roe Affidavit in Seattle School Dist. No. 1, supra);Hanawalt 36-38, 40; Siqueland 3, 184, Table 4.P2 Id., at 151-152; Hanawalt 37-38; Seattle School Dist. No. 1, supra,at 461, 102 S. Ct. 3187, 73 L. Ed. 2d 896; Complaint and Motion to Dismissor Affirm in Seattle School Dist. No. 1, supra.P3 Seattle School Dist. No. 1, supra, at 461, 102 S. Ct. 3187, 73 L. Ed.2d 896; Hanawalt 40.P4 See generally Seattle School Dist. No. 1, supra.

Section 6. Student Choice, 1988 to 1998P1 L. Kohn, Priority Shift: The Fate of Mandatory Busing for SchoolDesegregation in Seattle and the Nation 27-30, 32 [*88] (Mar. 1996).P2 Id., at 32-34.

Section 7. The Current Plan, 1999 to the PresentP1 App. in No. 05-908, p. 84a; Brief for Respondents in No. 05-908, pp. 5-7;426 F.3d 1162, 1169-1170 (CA9 2005) (en banc) (Parents Involved VII).P2 App. in No. 05-908, at 39-42; Research, Evaluation and Assessment, StudentInformation Services Office, Seattle Public Schools Data Profile:DistrictSummary December 2005, online at; Brief for Respondents in No. 05-908, at9-10, 47; App. in No. 05-908, at 309a; School Board Report, School Choices andAssignments 2005-2006 School Year (Apr. 2005), online at area/ facilties-plan/ Choice/ 05- 06AppsChoicesBoardApril2005final.pdf.P3 Parents Involved in Community Schools v. Seattle School Dist., No.1, 149 Wn. 2d 660, 72 P. 3d 151 (2003); 137 F. Supp. 2d 1224 (2001); 426F.3d 1162 (CA9 2005) (en banc) (Parents Involved VII).

Part I-B: LouisvilleSection 1. Before the Lawsuit, 1954 to 1972P1 Hampton v. Jefferson Cty., Bd. of Ed., 72 F. Supp. 2d 753,756, and nn. 2, 4, 5 (WD Ky. 1999) [*89] (Hampton I).

Section 2. Court-Imposed Guidelines and Busing, 1972 to 1991P1 Hampton I, supra, at 757-758, 762; Newburg Area Council,Inc. v. Board of Ed. of Jefferson Cty., 489 F.2d 925 (CA6 1973),vacated and remanded, 418 U.S. 918, 94 S. Ct. 3208, 41 L. Ed. 2d 1160 (1974),reinstated with modifications, 510 F.2d 1358 (CA6 1974) (per curiam);Judgment and Findings of Fact and Conclusions of Law in Newburg AreaCouncil, Inc. v. Board of Ed., of Jefferson Cty., Nos. 7045 and 7291(WD Ky., July 30, 1975) (1975 Judgment and Findings).P2 Id., at 2, 3, and Attachment 1.P3 Id., at 4-16.P4 Memorandum Opinion and Order in Haycraft v. Board of Ed. ofJefferson Cty., Nos. 7045 and 7291, (WD Ky., June 16, 1978), pp. 1, 2, 4,18 (1978 Memo & Order).P5 Memorandum Opinion and Order, Haycraft v. Board of Ed. of JeffersonCty., Nos. 7045 and 7291 (WD Ky., Sept. 24, 1985), p. 3; Memorandum from DonaldW. Ingwerson, Superintendent, to the Board of Education, Jefferson Cty. PublicSchool Dist., pp. 1, 3, 5 (Apr. 4, 1984) (1984 Memorandum); Memorandum fromDonald W. Ingwerson, Superintendent, to the [*90] Board ofEducation, Jefferson County Public School District, pp. 4-5 (Dec. 19, 1991)(1991 Memorandum).

Section 3. Student Choice and Project Renaissance, 1991 to 1996P1 1991 Memorandum 1-4, 7-11 (Stipulated Exh. 72); Brief for Respondents in No.05-915, P. 12, n. 13.P2 1991 Memorandum 14-16.P3 Id., at 11, 14-15.P4 Id., at 15-16; Memorandum from Stephen W. Daeschner, Superintendent,to the Board of Education, Jefferson Cty. Public School Dist., p. 2 (Aug. 6,1996) (1996 Memorandum).

Section 4. The Current Plan: Project Renaissance Modified, 1996 to 2003P1 1996 Memorandum 1-4; Brief for Respondents in No. 05-915, at 12, and n. 13.P2 1996 Memorandum 4-7, and Attachment 2; Hampton I, supra, at768.P3 1996 Memorandum 5-8; Hampton I, supra, at 768, n. 30.P4 Hampton v. Jefferson Cty. Bd. of Ed., 102 F. Supp. 2d 358,359, 363, 370, 377 (WD Ky. 2000) (Hampton II).P5 Id., at 380-381.

Section 5. The Current Lawsuit, 2003 to the PresentP1 McFarland v. Jefferson Cty. Public Schools, 330 F. Supp. 2d834 (WD Ky. 2004); McFarland v. Jefferson Cty. Public Schools,416 F.3d 513 (2005); [*91] Memorandum from Stephen W. Daeschner,Superintendent, to the Board of Education, Jefferson Cty. Public School Dist.,3-4 (Apr. 2, 2001).



Today, the Court holds that state entities may not experiment with race-basedmeans to achieve ends they deem socially desirable. I wholly concur in THECHIEF JUSTICE's opinion. I write separately to address several of thecontentions in JUSTICE BREYER's dissent (hereinafter the dissent). Contrary tothe dissent's arguments, resegregation is not occurring in Seattle orLouisville; these school boards have no present interest in remedying pastsegregation; and these race-based student-assignment programs do not serve anycompelling state interest. Accordingly, the plans are unconstitutional.Disfavoring a color-blind interpretation of the Constitution, the dissent wouldgive school boards a free hand to make decisions on the basis of race — anapproach 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. TheConstitution and our cases require us to be [*92] much more demandingbefore permitting local school boards to make decisions based on race.


The dissent repeatedly claims that the school districts are threatened withresegregation and that they will succumb to that threat if these plans aredeclared unconstitutional. It also argues that these plans can be justified aspart of the school boards’ attempts to "eradicate earlier schoolsegregation." See, e.g., post, at 4. Contrary to thedissent's rhetoric, neither of these school districts is threatened with resegregation,and neither is constitutionally compelled or permitted to undertake race-basedremediation. Racial imbalance is not segregation, and the mere incantation ofterms like resegregation and remediation cannot make up the difference.


Because this Court has authorized and required race-based remedial measures toaddress de jure segregation, it is important to define segregationclearly and to distinguish it from racial imbalance. In the context of publicschooling, segregation is the deliberate operation of a school system to"carry out a governmental policy to separate pupils in schools solely onthe 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); [*93] seealso Monroe v. Board of Comm’rs of Jackson, 391 U.S. 450, 452, 88S. Ct. 1700, 20 L. Ed. 2d 733 (1968). In Brown, this Court declared thatsegregation was unconstitutional under the Equal Protection Clause of theFourteenth 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) ("The State, acting throughthe local school board and school officials, organized and operated a dualsystem, part ‘white’ and part ‘Negro.’ It was such dual systems that 14 yearsago Brown I[, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873,] heldunconstitutional 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 beabolished"). n1

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n1 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 theraces); id., at App. A (listing "Statutory and ConstitutionalProvisions in the States Where Segregation in Education isInstitutionalized").– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –– [*94]

Racial imbalance is the failure of a school district's individual schools tomatch 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.n2 Although presently observed racial imbalance might result from past dejure segregation, racial imbalance can also result from any number ofinnocent 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 tounconstitutional segregation, it is not unconstitutional in and of itself. DaytonBd. 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 . . . isnot per se a constitutional violation"); 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. Millikenv. Bradley, 418 U.S. 717, 740-741, 94 S. Ct. 3112, 41 L. Ed. 2d 1069,and n. 19 (1974). [*95]

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n2 The dissent refers repeatedly and reverently to "‘integration.'"However, outside of the context of remediation for past de juresegregation, "integration" is simply racial balancing. See post,at 37. Therefore, the school districts’ attempts to further"integrate" are properly thought of as little more than attempts toachieve a particular racial balance.– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

Although there is arguably a danger of racial imbalance in schools in Seattleand Louisville, there is no danger of resegregation. No one contends thatSeattle has established or that Louisville has reestablished a dual schoolsystem that separates students on the basis of race. The statistics cited inAppendix A to the dissent are not to the contrary. See post, at 69-72.At most, those statistics show a national trend toward classroom racialimbalance. However, racial imbalance without intentional state action toseparate the races does not amount to segregation. To raise the specter ofresegregation to defend these programs is to ignore the [*96]meaning of the word and the nature of the cases before us. n3

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n3 The dissent's assertion that these plans are necessary for the schooldistricts to maintain their "hard-won gains" reveals its conflationof segregation and racial imbalance. Post, at 38. For the dissent'spurposes, the relevant hard-won gains are the present racial compositions inthe individual schools in Seattle and Louisville. However, the actual hard-wongain in these cases is the elimination of the vestiges of the system ofstate-enforced racial separation that once existed in Louisville. To equate theachievement of a certain statistical mix in several schools with theelimination of the system of systematic de jure segregation trivializesthe latter accomplishment. Nothing but an interest in classroom aesthetics anda hypersensitivity to elite sensibilities justifies the school districts’racial balancing programs. See Part II-B, infra. But "the principleof inherent equality that underlies and infuses our Constitution" requiredthe disestablishment of de jure segregation. See AdarandConstructors, Inc. v. Pena, 515 U.S. 200, 240, 115 S. Ct. 2097, 132L. Ed. 2d 158 (1995) (THOMAS, J., concurring in part and concurring injudgment). Assessed in any objective manner, there is no comparison between thetwo.– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –– [*97]


Just as the school districts lack an interest in preventing resegregation, theyalso have no present interest in remedying past segregation. The Constitutiongenerally prohibits government race-based decisionmaking, but this Court hasauthorized the use of race-based measures for remedial purposes in two narrowlydefined circumstances. First, in schools that were formerly segregated by law,race-based measures are sometimes constitutionally compelled to remedy priorschool segregation. Second, in Croson, the Court appeared willing toauthorize a government unit to remedy past discrimination for which it wasresponsible. Richmond v. J. A. Croson Co., 488 U.S. 469, 504, 109S. Ct. 706, 102 L. Ed. 2d 854 (1989). Without explicitly resting on either ofthese 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 permissiblerace-based remediation.


The Constitution does not permit race-based government decisionmaking simplybecause a school district claims a remedial purpose and proceeds in good faithwith arguably pure motives. Grutter v. Bollinger, 539 U.S. 306,371, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (2003) [*98] (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 unlessnarrowly 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 mostcases. Jenkins, supra, at 121, 115 S. Ct. 2038, 132 L. Ed. 2d 63(THOMAS, J., concurring); cf. Hirabayashi v. United States, 320U.S. 81, 100, 63 S. Ct. 1375, 87 L. Ed. 1774 (1943) ("Racialdiscriminations are in most circumstances irrelevant and thereforeprohibited"). And appropriately so. "The Constitution abhorsclassifications based on race, not only because those classifications can harmfavored races or are based on illegitimate motives, but also because every timethe government places citizens on racial registers and makes race relevant tothe 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 decisionmaking [*99] —regardless of context — is unconstitutional.


This Court has carved out a narrow exception to that general rule for cases inwhich a school district has a "history of maintaining two sets of schoolsin a single school system deliberately operated to carry out a governmentalpolicy to separate pupils in schools solely on the basis of race." n4 See Swann,402 U.S., at 5-6, 91 S. Ct. 1267, 28 L. Ed. 2d 554. In such cases, race-basedremedial measures are sometimes required. n5 Green, 391 U.S., at437-438, 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). n6 But without a history of state-enforced racial separation, aschool district has no affirmative legal obligation to take race-based remedialmeasures to eliminate segregation and its vestiges.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n4 The dissent makes much of the supposed difficulty of determining whetherprior segregation was de jure or de facto. See, e.g., post,at 19-20. That determination typically will not be nearly as difficult as thedissent makes it seem. In most cases, there either will or will not have been astate constitutional amendment, state statute, local ordinance, or localadministrative policy explicitly requiring separation of the races. See, e.g.,n. 1, supra. And even if the determination is difficult, it is one thedissent acknowledges must be made to determine what remedies school districtsare required to adopt. Post, at 43. [*100]n5 This Court's opinion in McDaniel v. Barresi, 402 U.S. 39, 91S. Ct. 1287, 28 L. Ed. 2d 582 (1971), fits comfortably within this framework.There, a Georgia school board voluntarily adopted a desegregation plan. At thetime of Brown, v. Board of Education, 347 U.S. 483, 74 S. Ct.686, 98 L. Ed. 873 (1954), Georgia's Constitution required that "separateschools shall be provided for the white and colored races." Ga. Const.,Art. VII, § 1, ch. 2-6401 (1948). Given that state law had previously requiredthe school board to maintain a dual school system, the county was obligated totake measures to remedy its prior de jure segregation. This Courtrecognized 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.

n6 As I have explained elsewhere, the remedies this Court authorized lowercourts to compel in early desegregation cases like Green and Swannwere exceptional. See Missouri v. Jenkins, 515 U.S. 70, 124-125,115 S. Ct. 2038, 132 L. Ed. 2d 63 (1995), (THOMAS, J., concurring). Sustainedresistance to Brown prompted the Court to authorize extraordinaryrace-conscious remedial measures (like compelled racial mixing) to turn theConstitution'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 measureswere appropriate as remedies in the face of widespread resistance to Brown‘smandate, they are not forever insulated from constitutional scrutiny. Rather,"such powers should have been temporary and used only to overcome thewidespread resistance to the dictates of the Constitution." 515 U.S., at125, 115 S. Ct. 2038, 132 L. Ed. 2d 63 (THOMAS, J., concurring).– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –– [*101]

Neither of the programs before us today is compelled as a remedial measure, andno one makes such a claim. Seattle has no history of de juresegregation; therefore, the Constitution did not require Seattle's plan. n7Although Louisville once operated a segregated school system and was subject toa Federal District Court's desegregation decree, see ante, at 7; Hamptonv. 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, norace-based remedial measures have been required in Louisville. Thus, therace-based student-assignment plan at issue here, which was instituted the yearafter the dissolution of the desegregation decree, was not even arguablyrequired by the Constitution.

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n7 Though the dissent cites every manner of complaint, record material, andscholarly article relating to Seattle's race-based student assignment efforts, post,at 73-75, it cites no law or official policy that required separation of theraces in Seattle's schools. Nevertheless, the dissent tries to cast doubt onthe historical fact that the Seattle schools were never segregated by law byciting allegations that the National Association for the Advancement of ColoredPeople and other organizations made in court filings to the effect thatSeattle's schools were once segregated by law. See post, at 7-9, 23.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 resolvingthese cases.– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –– [*102]


Aside from constitutionally compelled remediation in schools, this Court haspermitted government units to remedy prior racial discrimination only in narrowcircumstances. See Wygant v. Jackson Bd. of Ed., 476 U.S. 267,277, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (1986) (plurality opinion). Regardlessof the constitutional validity of such remediation, see Croson, supra,at 524-525, 109 S. Ct. 706, 102 L. Ed. 2d 854 (SCALIA, J., concurring injudgment), it does not apply here. Again, neither school board asserts that itsrace-based actions were taken to remedy prior discrimination. Seattle providesthree forward-looking — as opposed to remedial — justifications for itsrace-based assignment plan. Brief for Respondents in No. 05-908, pp. 24-34.Louisville asserts several similar forward-looking interests, Brief forRespondents in No. 05-915, pp. 24-29, and at oral argument, counsel forLouisville disavowed any claim that Louisville's argument "depended in anyway 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 itwas responsible, the Court has required it to demonstrate "a ‘strong basisin evidence for its conclusion [*103] that remedial action wasnecessary.'" 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 pastracial 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] thenecessary remedy," id., at 505, 109 S. Ct. 706, 102 L. Ed. 2d 854,and must be more than "inherently unmeasurable claims of pastwrongs," id., at 506, 109 S. Ct. 706, 102 L. Ed. 2d 854. Assertionsof general societal discrimination are plainly insufficient. Id., at499, 504, 109 S. Ct. 706, 102 L. Ed. 2d 854; Wygant, supra, at274, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (plurality opinion); cf. Regents ofUniv. 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 anysuch specific findings. For Seattle, the dissent attempts to make up for thisfailing by adverting to allegations made in past complaints filed against theSeattle school district. However, allegations in complaints cannot substitutefor specific findings of prior discrimination — even when those allegationslead to settlements [*104] 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 forLouisville, its slate was cleared by the District Court's 2000 dissolutiondecree, which effectively declared that there were no longer any effects of dejure discrimination in need of remediation. n8

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n8 Contrary to the dissent's argument, post, at 44, the Louisvilleschool district's interest in remedying its past de jure segregation didvanish the day the District Court found that Louisville had eliminated thevestiges of its historic de jure segregation. See Hampton v. JeffersonCty. Bd. of Ed., 102 F. Supp. 2d 358, at 360 (WD Ky. 2000). If there werefurther remediation to be done, the District Court could not logically havereached the conclusion that Louisville "had eliminated the vestigesassociated with the former policy of segregation and its perniciouseffects." Ibid. Because Louisville could use race-based measuresonly as a remedy for past de jure segregation, it is not"incoherent," post, at 56, to say that race-baseddecisionmaking was allowed to Louisville one day — while it was stillremedying — and forbidden to it the next — when remediation was finished.That seemingly odd turnaround is merely a result of the fact that theremediation of de jure segregation is a jealously guarded exception tothe Equal Protection Clause's general rule against government race-baseddecisionmaking.– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –– [*105]

Despite the dissent's repeated intimation of a remedial purpose, neither of theprograms in question qualifies as a permissible race-based remedial measure.Thus, the programs are subject to the general rule that government race-baseddecisionmaking is unconstitutional.


As the foregoing demonstrates, racial balancing is sometimes a constitutionallypermissible remedy for the discrete legal wrong of de jure segregation,and when directed to that end, racial balancing is an exception to the generalrule that government race-based decisionmaking is unconstitutional. Perhaps forthis reason, the dissent conflates the concepts of segregation and racialimbalance: If racial imbalance equates to segregation, then it must also beconstitutionally acceptable to use racial balancing to remedy racial imbalance.

For at least two reasons, however, it is wrong to place the remediation of segregationon the same plane as the remediation of racial imbalance. First, asdemonstrated above, the two concepts are distinct. Although racial imbalancecan result from de jure segregation, it does not necessarily, and thefurther we get from the era of state-sponsored racial separation, theless [*106] likely it is that racial imbalance has a traceableconnection to any prior segregation. See Freeman, 503 U.S., at 496, 112S. Ct. 1430, 118 L. Ed. 2d 108; Jenkins, 515 U.S., at 118, 115 S. Ct.2038, 132 L. Ed. 2d 63 (THOMAS, J., concurring).

Second, a school cannot "remedy" racial imbalance in the same waythat it can remedy segregation. Remediation of past de jure segregationis a one-time process involving the redress of a discrete legal injuryinflicted by an identified entity. At some point, the discrete injury will beremedied, and the school district will be declared unitary. See Swann,402 U.S., at 31, 91 S. Ct. 1267, 28 L. Ed. 2d 554. Unlike de juresegregation, there is no ultimate remedy for racial imbalance. Individualschools will fall in and out of balance in the natural course, and theappropriate balance itself will shift with a school district's changingdemographics. Thus, racial balancing will have to take place on an indefinitebasis — a continuous process with no identifiable culpable party and nodiscernable end point. In part for those reasons, the Court has never permittedoutright racial balancing solely for the purpose of achieving a particularracial balance.


Lacking a cognizable interest in remediation, [*107] neither ofthese plans can survive strict scrutiny because neither plan serves a genuinelycompelling state interest. The dissent avoids reaching that conclusion byunquestioningly accepting the assertions of selected social scientists whilecompletely ignoring the fact that those assertions are the subject of ferventdebate. Ultimately, the dissent's entire analysis is corrupted by theconsiderations that lead it initially to question whether strict scrutinyshould apply at all. What emerges is a version of "strict scrutiny"that combines hollow assurances of harmlessness with reflexive acceptance ofconventional wisdom. When it comes to government race-based decisionmaking, theConstitution demands more.


The dissent claims that "the law requires application here of a standardof review that is not ‘strict’ in the traditional sense of that word." Post,at 36. This view is informed by dissents in our previous cases and theconcurrences of two Court of Appeals judges. Post, at 34-36 (citing 426F.3d 1162, 1193-1194 (CA9 2005) (Kozinski, J., concurring); Comfort v. LynnSchool Comm., 418 F.3d 1, 28-29 (CA1 2005) (Boudin, C. J., concurring)).[*108] Those lower court judges reasoned that programs like theseare not "aimed at oppressing blacks" and do not "seek to giveone racial group an edge over another." Comfort, supra, at27 (Boudin, C. J., concurring); 426 F.3d at 1193 (Kozinski, J., concurring).They were further persuaded that these plans differed from other race-basedprograms this Court has considered because they are "certainly more benignthan laws that favor or disfavor one race, segregate by race, or create quotasfor or against a racial group," Comfort, 418 F.3d at 28 (Boudin, C.J., concurring), and they are "far from the original evils at which theFourteenth Amendment was addressed," id., at 29; 426 F.3d at 1195(Kozinski, J., concurring). Instead of strict scrutiny, Judge Kozinski wouldhave analyzed the plans under "robust and realistic rational basis review."Id., at 1194.

These arguments are inimical to the Constitution and to this Court'sprecedents. n9 We have made it unusually clear that strict scrutiny applies to everyracial classification. Adarand, 515 U.S., at 227, 115 S. Ct. 2097, 132L. Ed 2d 158; Grutter, 539 U.S., at 326, 123 S. Ct. 2325, 156 L. Ed. 2d304; [*109] Johnson v. California, 543 U.S. 499, 505,125 S. Ct. 1141, 160 L. Ed. 2d 949 (2005) ("We have insisted on strictscrutiny in every context, even for so-called ‘benign’ racial classifications").n10 There are good reasons not to apply a lesser standard to these cases. Theconstitutional problems with government race-based decisionmaking are notdiminished in the slightest by the presence or absence of an intent to oppressany race or by the real or asserted well-meaning motives for the race-baseddecisionmaking. Adarand, 515 U.S., at 228-229, 115 S. Ct. 2097, 132 L.Ed 2d 158. Purportedly benign race-based decisionmaking suffers the sameconstitutional infirmity as invidious race-based decisionmaking. Id., at240, 115 S. Ct. 2097, 132 L. Ed 2d 158 (THOMAS, J., concurring in part andconcurring in judgment) ("As far as the Constitution is concerned, it isirrelevant whether a government's racial classifications are drawn by those whowish to oppress a race or by those who have a sincere desire to help thosethought to be disadvantaged").

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n9 The dissent's appeal to stare decisis, post, at 65, isparticularly ironic in light of its apparent willingness to depart from theseprecedents, post, at 36-37. [*110]n10 The idea that government racial classifications must be subjected to strictscrutiny did not originate in Adarand. As early as Loving v. Virginia,388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967), this Court made clearthat government action that "rests solely upon distinctions drawnaccording to race" had to be "subjected to the ‘most rigidscrutiny.'" Id., at 11, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (quoting Korematsuv. United States, 323 U.S. 214, 216, 65 S. Ct. 193, 89 L. Ed. 194(1944)); see also McLaughlin v. Florida, 379 U.S. 184, 196, 85 S.Ct. 283, 13 L. Ed. 2d 222 (1964) (requiring a statute drawing a racialclassification to be "necessary, and not merely rationally related, toaccomplishment of a permissible state policy"); id., at 197, 85 S.Ct. 283, 13 L. Ed. 2d 222 (Harlan, J., concurring) ("The necessity test .. . should be equally applicable in a case involving state racialdiscrimination").– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

Even supposing it mattered to the constitutional analysis, the race-basedstudent assignment programs before us are not as benign as the dissentbelieves. See post, at 34-35. "Racial paternalism and itsunintended consequences can be as poisonous [*111] and pernicious asany other form of discrimination." Adarand, supra, at 241,115 S. Ct. 2097, 132 L. Ed. 2d 158 (opinion of THOMAS, J.). As these programsdemonstrate, every time the government uses racial criteria to "bring theraces together," post, at 29, someone gets excluded, and the personexcluded suffers an injury solely because of his or her race. The petitioner inthe Louisville case received a letter from the school board informing her thather kindergartener would not be allowed to attend the school ofpetitioner's choosing because of the child's race. App. in No. 05-915, p. 97.Doubtless, hundreds of letters like this went out from both school boards everyyear these race-based assignment plans were in operation. This type ofexclusion, solely on the basis of race, is precisely the sort of governmentaction that pits the races against one another, exacerbates racial tension, and"provokes resentment among those who believe that they have been wrongedby the government's use of race." Adarand, supra, at 241,115 S. Ct. 2097, 132 L. Ed. 2d 158 (opinion of THOMAS, J.). Accordingly, theseplans are simply one more variation on the government race-based decisionmakingwe have consistently held must [*112] be subjected to strictscrutiny. Grutter, supra, at 326, 123 S. Ct. 2325, 156 L. Ed. 2d304.


Though the dissent admits to discomfort in applying strict scrutiny to theseplans, it claims to have nonetheless applied that exacting standard. But in itssearch for a compelling interest, the dissent casually accepts even the mosttenuous interests asserted on behalf of the plans, grouping them all under theterm "‘integration.'" See post, at 37."‘Integration,'" we are told, has "three essentialelements." Ibid. None of these elements is compelling. And thecombination of the three unsubstantiated elements does not produce an interestany more compelling than that represented by each element independently.


According to the dissent, integration involves "an interest in settingright the consequences of prior conditions of segregation." Post,at 37. For the reasons explained above, the records in these cases do notdemonstrate that either school board's plan is supported by an interest inremedying past discrimination. Part I-B, supra.

Moreover, the school boards have no interest in remedying the sundryconsequences of prior segregation unrelated to schooling, such as"housing [*113] patterns, employment practices, economicconditions, and social attitudes." Post, at 38. General claims thatpast school segregation affected such varied societal trends are "tooamorphous a basis for imposing a racially classified remedy," Wygant,476 U.S., at 276, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (plurality opinion),because "it is sheer speculation" how decades-past segregation in theschool system might have affected these trends, see Croson, 488 U.S., at499, 109 S. Ct. 706, 102 L. Ed. 2d 854. Consequently, school boards seeking toremedy those societal problems with race-based measures in schools today wouldhave no way to gauge the proper scope of the remedy. Id., at 498, 109 S.Ct. 706, 102 L. Ed. 2d 854. Indeed, remedial measures geared toward such broadand unrelated societal ills have "‘no logical stopping point,'" ibid.,and threaten to become "ageless in their reach into the past, and timelessin their ability to affect the future," Wygant, supra, at276, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (plurality opinion). See Grutter,539 U.S., at 342, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (stating the"requirement that all governmental use of race must have a logical endpoint").

Because the school boards lack any further interest in remedying segregation,this [*114] element offers no support for the purported interest in"integration."


Next, the dissent argues that the interest in integration has an educationalelement. The dissent asserts that racially balanced schools improve educationaloutcomes for black children. In support, the dissent unquestioningly citescertain social science research to support propositions that are hotly disputedamong social scientists. In reality, it is far from apparent that coercedracial mixing has any educational benefits, much less that integration isnecessary to black achievement.

Scholars have differing opinions as to whether educational benefits arise fromracial balancing. Some have concluded that black students receive genuineeducational benefits. See, e.g., Crain & Mahard, Desegregation andBlack Achievement: A Review of the Research, 42 L. & Contemp. Probs. 17, 48(1978). Others have been more circumspect. See, e.g., Henderson,Greenberg, Schneider, Uribe, & Verdugo, High Quality Schooling for AfricanAmerican Students, in Beyond Desegregation 166 (M. Shujaa ed. 1996)("Perhaps desegregation does not have a single effect, positive ornegative, on the academic achievement of African American [*115]students, but rather some strategies help, some hurt, and still others make nodifference whatsoever. It is clear to us that focusing simply on demographicissues detracts from focusing on improving schools"). And some haveconcluded that there are no demonstrable educational benefits. See, e.g.,Armor & Rossell, Desegregation and Resegregation in the Public Schools, inBeyond the Color Line: New Perspectives on Race and Ethnicity in America 239,251 (A. Thernstrom & S. Thernstrom eds. 2002).

The amicus briefs in the cases before us mirror this divergence ofopinion. Supporting the school boards, one amicus has assured us that"both early desegregation research and recent statistical and econometricanalyses . . . indicate that there are positive effects on minority studentachievement scores arising from diverse school settings." Brief forAmerican Educational Research Association as Amicus Curiae 10. Anotherbrief claims that "school desegregation has a modest positive impact onthe achievement of African-American students." App. to Brief for 553Social Scientists as Amici Curiae 13-14 (footnote omitted). Yet neitherof those briefs contains specific details [*116] like the magnitudeof the claimed positive effects or the precise demographic mix at which thosepositive effects begin to be realized. Indeed, the social scientists’ briefrather cautiously claims the existence of any benefit at all, describing the"positive impact" as "modest," id., at 13,acknowledging that "there appears to be little or no effect on mathscores," id., at 14, and admitting that the "underlyingreasons for these gains in achievement are not entirely clear," id.,at 15. n11

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n11 At least one of the academic articles the dissent cites to support thisproposition fails to establish a causal connection between the supposed educationalgains realized by black students and racial mixing. See Hallinan, DiversityEffects on Student Outcomes: Social Science Evidence, 59 Ohio St. L. J. 733(1998). In the pages following the ones the dissent cites, the author of thatarticle remarks that "the main reason white and minority students performbetter academically in majority white schools is likely that these schoolsprovide greater opportunities to learn. In other words, it is not desegregationper se that improves achievement, but rather the learning advantages somedesegregated schools provide." Id., at 744. Evidence that race is agood proxy for other factors that might be correlated with educational benefitsdoes not support a compelling interest in the use of race to achieve academicresults.– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –– [*117]

Other amici dispute these findings. One amicus reports that"in study after study, racial composition of a student body, whenisolated, proves to be an insignificant determinant of studentachievement." Brief for Dr. John Murphy et al. as Amici Curiae inNo. 05-908, p. 8; see also id., at 9 ("There is no evidence thatdiversity in the K-12 classroom positively affects student achievement").Another amicus surveys several social science studies and concludes that"a fair and comprehensive analysis of the research shows that there is noclear and consistent evidence of [educational] benefits." Brief for DavidJ. Armor et al. as Amici Curiae 29.

Add to the inconclusive social science the fact of black achievement in"racially isolated" environments. See T. Sowell, Education:Assumptions Versus History 7-38 (1986). Before Brown, the most prominentexample of an exemplary black school was Dunbar High School. Id., at 29("In the period 1918-1923, Dunbar graduates earned fifteen degrees fromIvy League colleges, and ten degrees from Amherst, Williams, andWesleyan"). Dunbar is by no means an isolated example. See id., at10-32 (discussing other successful [*118] black schools); Walker,Can Institutions Care? Evidence from the Segregated Schooling of AfricanAmerican Children, in Beyond Desegregation 209-226 (M. Shujaa ed. 1996); seealso T. Sowell, Affirmative Action Around the World: An Empirical Study 141-165(2004). Even after Brown, some schools with predominantly blackenrollments have achieved outstanding educational results. See, e.g., S.Carter, No Excuses: Lessons from 21 High-Performing, High-Poverty Schools49-50, 53-56, 71-73, 81-84, 87-88 (2001); A. Thernstrom & S. Thernstrom, NoExcuses: Closing the Racial Gap in Learning 43-64 (2003); see also L. Izumi,They Have Overcome: High-Poverty, High-Performing Schools in California (2002)(chronicling exemplary achievement in predominantly Hispanic schools inCalifornia). There is also evidence that black students attending historicallyblack colleges achieve better academic results than those attendingpredominantly white colleges. Grutter, supra, at 364-365, 123 S.Ct. 2325, 156 L. Ed. 2d 304 (THOMAS, J., concurring in part and concurring injudgment) (citing sources); see also Fordice, 505 U.S., at 748-749, 112S. Ct. 2727, 120 L. Ed. 2d 575 (THOMAS, J., concurring).

The Seattle school board itself must [*119] believe that racialmixing is not necessary to black achievement. Seattle operates a K-8"African-American Academy," which has a "nonwhite"enrollment of 99%. See App. in No. 05-908, p. 227a; Reply Brief in No. 05-908,p. 13, n. 13. That school was founded in 1990 as part of the school board'seffort to "increase academic achievement." n12 See African AmericanAcademy History, online at (all Internet materials as visitedJune 26, 2007, and available in Clerk of Court's case file). According to theschool's most recent annual report, "academic excellence" is its"primary goal." See African American Academy 2006 Annual Report, p.2, online at This racially imbalanced environment hasreportedly produced test scores "higher across all grade levels inreading, writing and math." Ibid. Contrary to what the dissentwould have predicted, see post, at 38-39, the children in Seattle'sAfrican American Academy have shown gains when placed in a "highlysegregated" environment.

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n12 Of course, if the Seattle school board were truly committed to the notionthat diversity leads directly to educational benefits, operating a school withsuch a high "nonwhite" enrollment would be a shocking dereliction ofits duty to educate the students enrolled in that school.– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –– [*120]

Given this tenuous relationship between forced racial mixing and improvededucational results for black children, the dissent cannot plausibly maintainthat an educational element supports the integration interest, let alone makesit compelling. n13 See Jenkins, 515 U.S., at 121-122, 115 S. Ct. 2038,132 L. Ed. 2d 63 (THOMAS, J., concurring) ("There is no reason to thinkthat black students cannot learn as well when surrounded by members of theirown race as when they are in an integrated environment").

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n13 In fact, the available data from the Seattle school district appear toundercut the dissent's view. A comparison of the test results of the schools inthe last year the racial balancing program operated to the results in the2004-to-2005 school year (in which student assignments were race-neutral) doesnot indicate the decline in black achievement one would expect to find if blackachievement were contingent upon a particular racial mix. See Washington StateReport Card, online at;;; that reading scores went up, not down, when Seattle's race-basedassignment program ended at Sealth High School, Ingraham High School, andFranklin High School — some of the schools most affected by the plan).– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –– [*121]

Perhaps recognizing as much, the dissent argues that the social scienceevidence is "strong enough to permit a democratically elected school boardreasonably to determine that this interest is a compelling one." Post,at 38. This assertion is inexplicable. It is not up to the school boards — thevery government entities whose race-based practices we must strictly scrutinize— to determine what interests qualify as compelling under the FourteenthAmendment to the United States Constitution. Rather, this Court must assessindependently the nature of the interest asserted and the evidence to supportit in order to determine whether it qualifies as compelling under ourprecedents. In making such a determination, we have deferred to state authoritiesonly once, see Grutter, 539 U.S., at 328-330, 123 S. Ct. 2325, 156 L.Ed. 2d 304, and that deference was prompted by factors uniquely relevant tohigher education. Id., at 328, 123 S. Ct. 2325, 156 L. Ed. 2d 304("Our holding today is in keeping with our tradition of giving a degree ofdeference to a university's academic decisions"). The dissent's proposedtest — whether sufficient social science evidence supports a government unit'sconclusion that the interest it asserts [*122] is compelling — callsto mind the rational-basis standard of review the dissent purports not toapply, post, at 36-37. See Williamson v. Lee Optical of Okla.,Inc., 348 U.S. 483, 488, 75 S. Ct. 461, 99 L. Ed. 563 (1955) ("It isenough that there is an evil at hand for correction, and that it might bethought that the particular legislative measure was a rational way to correctit"). Furthermore, it would leave our equal-protection jurisprudence atthe mercy of elected government officials evaluating the evanescent views of ahandful of social scientists. To adopt the dissent's deferential approach wouldbe to abdicate our constitutional responsibilities. n14

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n14 The dissent accuses me of "feeling confident that, to end invidiousdiscrimination, one must end all governmental use of race-consciouscriteria" and chastises me for not deferring to democratically electedmajorities. See post, at 62. Regardless of what JUSTICE BREYER's goalsmight be, this Court does not sit to "create a society that includes allAmericans" or to solve the problems of "troubled inner cityschooling." Ibid. We are not social engineers. The United StatesConstitution dictates that local governments cannot make decisions on the basisof race. Consequently, regardless of the perceived negative effects of racialimbalance, I will not defer to legislative majorities where the Constitutionforbids it.

It should escape no one that behind JUSTICE BREYER's veil of judicial modestyhides an inflated role for the Federal Judiciary. The dissent's approachconfers on judges the power to say what sorts of discrimination are benign andwhich are invidious. Having made that determination (based on no objectivemeasure that I can detect), a judge following the dissent's approach will setthe level of scrutiny to achieve the desired result. Only then must the judgedefer to a democratic majority. In my view, to defer to one's preferred resultis not to defer at all.– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –– [*123]


Finally, the dissent asserts a "democratic element" to theintegration interest. It defines the "democratic element" as "aninterest in producing an educational environment that reflects the ‘pluralisticsociety’ in which our children will live." Post, at 39. n15Environmental reflection, though, is just another way to say racial balancing.And "preferring members of any one group for no reason other than race orethnic origin is discrimination for its own sake." Bakke, 438 U.S.,at 307, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (opinion of Powell, J.). "Thisthe Constitution forbids." Ibid.; Grutter, supra, at329-330, 123 S. Ct. 2325, 156 L. Ed. 2d 304; Freeman, 503 U.S., at 494,112 S. Ct. 1430, 118 L. Ed. 2d 108.

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n15 The notion that a "democratic" interest qualifies as a compellinginterest (or constitutes a part of a compelling interest) is proposed for thefirst time in today's dissent and has little basis in the Constitution or ourprecedent, which has narrowly restricted the interests that qualify ascompelling. See Grutter v. Bollinger, 539 U.S. 306, 351-354, 123S. Ct. 2325, 156 L. Ed. 2d 304 (2003) (THOMAS, J., concurring in part anddissenting in part). The Fourteenth Amendment does not enact the dissent'snewly minted understanding of liberty. See Lochner v. New York,198 U.S. 45, 75, 25 S. Ct. 539, 49 L. Ed. 937 (1905) (Holmes, J., dissenting)("The Fourteenth Amendment does not enact Mr. Herbert Spencer's SocialStatics").– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –– [*124]

Navigating around that inconvenient authority, the dissent argues that theracial balancing in these plans is not an end in itself but is instead intendedto "teach children to engage in the kind of cooperation among Americans ofall races that is necessary to make a land of three hundred million people oneNation." Post, at 39-40. These "generic lessons insocialization and good citizenship" are too sweeping to qualify ascompelling interests. Grutter, 539 U.S., at 348, 123 S. Ct. 2325, 156 L.Ed. 2d 304 (SCALIA, J., concurring in part and dissenting in part). And theyare not "uniquely relevant" to schools or "uniquely ‘teachable’in a formal educational setting." Id., at 347, 123 S. Ct. 2325, 156L. Ed. 2d 304. Therefore, if governments may constitutionally use racialbalancing to achieve these aspirational ends in schools, they may use racialbalancing to achieve similar goals at every level — from state-sponsored 4-Hclubs, see Bazemore v. Friday, 478 U.S. 385, 388-390, 106 S. Ct.3000, 92 L. Ed. 2d 315 (1986) (Brennan, J., concurring), to the state civilservice. See Grutter, 539 U.S. 347-348, 123 S. Ct. 2325, 156 L. Ed. 2d304 (opinion of SCALIA, J.).

Moreover, the democratic interest has no durational limit, contrary to Grutter‘scommand. [*125] See id., at 342, 123 S. Ct. 2325, 156 L. Ed.2d 304; see also Croson, 488 U.S., at 498, 109 S. Ct. 706, 102 L. Ed. 2d854; Wygant, 476 U.S., at 275, 106 S. Ct. 1842, 90 L. Ed. 2d 260(plurality opinion). In other words, it will always be important for studentsto learn cooperation among the races. If this interest justifies race-consciousmeasures today, then logically it will justify race-conscious measures forever.Thus, the democratic interest, limitless in scope and "timeless in [its]ability to affect the future," id., at 276, 106 S. Ct. 1842, 90 L.Ed. 2d 260 (plurality opinion), cannot justify government race-baseddecisionmaking. n16

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n16 The dissent does not explain how its recognition of an interest in teachingracial understanding and cooperation here is consistent with the Court'srejection of a similar interest in Wygant. In Wygant, a schooldistrict justified its race-based teacher-layoff program in part on the theorythat "minority teachers provided ‘role models’ for minority students andthat a racially ‘diverse’ faculty would improve the education of allstudents." Grutter, supra, at 352, 123 S. Ct. 2325, 156 L.Ed. 2d 304 (opinion of THOMAS, J.) (citing Brief for Respondents, O. T. 1984,No. 84-1340, pp. 27-28; 476 U.S., at 315, 106 S. Ct. 1842, 90 L. Ed. 2d 260(STEVENS, J., dissenting)). The Court rejected the interests asserted tojustify the layoff program as insufficiently compelling. Wygant, 476U.S., at 275-276, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (plurality opinion); id.,at 295, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (White, J., concurring in judgment).If a school district has an interest in teaching racial understanding andcooperation, there is no logical reason why that interest should not extend tothe composition of the teaching staff as well as the composition of the studentbody. The dissent's reliance on this interest is, therefore, inconsistent with Wygant.– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –– [*126]

In addition to these defects, the democratic element of the integrationinterest fails on the dissent's own terms. The dissent again relies upon socialscience research to support the proposition that state-compelled racial mixingteaches children to accept cooperation and improves racial attitudes and racerelations. Here again, though, the dissent overstates the data that supposedlysupport the interest.

The dissent points to data that indicate that "black and white students indesegregated schools are less racially prejudiced than those in segregatedschools." Post, at 40 (internal quotation marks omitted). By thedissent's account, improvements in racial attitudes depend upon the increasedcontact between black and white students thought to occur in more raciallybalanced schools. There is no guarantee, however, that students of differentraces in the same school will actually spend time with one another. Schoolsfrequently group students by academic ability as an aid to efficientinstruction, but such groupings often result in classrooms with highconcentrations of one race or another. See, e.g., Yonezawa, Wells, &Serna, Choosing Tracks: "Freedom of Choice" inDetracting [*127] Schools, 39 Am. Ed. Research J., No. 1, p. 38(Spring 2002); Mickelson, Subverting Swann: First- and Second-GenerationSegregation in the Charlotte-Mecklenburg Schools, 38 Am. Ed. Research J., No.2, pp. 233-234 (Summer 2001) (describing this effect in schools in Charlotte,North Carolina). In addition to classroom separation, students of differentraces within the same school may separate themselves socially. See Hallinan& Williams, Interracial Friendship Choices in Secondary Schools, 54 Am.Sociological Rev., No. 1, pp. 72-76 (Feb. 1989); see also Clotfelter,Interracial Contact in High School Extracurricular Activities, 34 Urban Rev.,No. 1, pp. 41-43 (Mar. 2002). Therefore, even supposing interracial contactleads directly to improvements in racial attitudes and race relations, aprogram that assigns students of different races to the same schools might notcapture those benefits. Simply putting students together under the same roofdoes not necessarily mean that the students will learn together or eveninteract.

Furthermore, it is unclear whether increased interracial contact improvesracial attitudes and relations. n17 One researcher has stated that "thereviews of desegregation [*128] and intergroup relations were unableto come to any conclusion about what the probable effects of desegregation were. . . [;] virtually all of the reviewers determined that few, if any, firmconclusions about the impact of desegregation on intergroup relations could bedrawn." Schofield, School Desegregation and Intergroup Relations: A Reviewof the Literature, in 17 Review of Research in Education 356 (G. Grant ed.1991). Some studies have even found that a deterioration in racial attitudesseems to result from racial mixing in schools. See N. St. John, SchoolDesegregation Outcomes for Children 67-68 (1975) ("A glance at [the data]shows that for either race positive findings are less common than negativefindings"); Stephan, The Effects of School Desegregation: An Evaluation 30Years After Brown, in Advances in Applied Social Psychology 183-186 (M. Saks& L. Saxe eds. 1986). Therefore, it is not nearly as apparent as thedissent suggests that increased interracial exposure automatically leads toimproved racial attitudes or race relations.

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n17 Outside the school context, this Court's cases reflect the fact that racialmixing does not always lead to harmony and understanding. In Johnson v. California,543 U.S. 499, 125 S. Ct. 1141, 160 L. Ed. 2d 949 (2005), this Court considereda California prison policy that separated inmates racially. Id., at525-528, 125 S. Ct. 1141, 160 L. Ed. 2d 949 (THOMAS, J., dissenting). Thatpolicy was necessary because of "numerous incidents of racialviolence." Id., at 502, 125 S. Ct. 1141, 160 L. Ed. 2d 949; id.,at 532-534, 125 S. Ct. 1141, 160 L. Ed. 2d 949 (THOMAS, J., dissenting). As aresult of this Court's insistence on strict scrutiny of that policy, but see id.,at 538-547, 125 S. Ct. 1141, 160 L. Ed. 2d 949, inmates in the Californiaprisons were killed. See Beard v. Banks, 548 U.S. ___, ___, 126S. Ct. 2572, 165 L. Ed. 2d 697 (2006) (THOMAS, J., concurring in judgment)(noting that two were killed and hundreds were injured in race riotingsubsequent to this Court's decision in Johnson).– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –– [*129]

Given our case law and the paucity of evidence supporting the dissent's beliefthat these plans improve race relations, no democratic element can support theintegration interest. n18

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n18 After discussing the "democratic element," the dissent repeatsits assertion that the social science evidence supporting that interest is"sufficiently strong to permit a school board to determine . . . that thisinterest is compelling." Post, at 40. Again, though, the schoolboards have no say in deciding whether an interest is compelling. Strict scrutinyof race-based government decisionmaking is more searching than Chevron-styleadministrative review for reasonableness. See Chevron U.S.A. Inc. v. NRDC,467 U.S. 837, 845, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984).– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –


The dissent attempts to buttress the integration interest by claiming that itfollows a fortiori from the interest this Court recognized as compellingin Grutter. Post, at 41. Regardless of the merit of Grutter,the [*130] compelling interest recognized in that case cannotsupport these plans. Grutter recognized a compelling interest in a lawschool's attainment of a diverse student body. 539 U.S., at 328, 123 S. Ct.2325, 156 L. Ed. 2d 304. This interest was critically dependent upon featuresunique to higher education: "the expansive freedoms of speech and thoughtassociated with the university environment," the "special niche inour constitutional tradition" occupied by universities, and "the freedomof a university to make its own judgments as to education[,] including theselection of its student body." Id., at 329, 123 S. Ct. 2325, 156L. Ed. 2d 304 (internal quotation marks omitted). None of these features ispresent in elementary and secondary schools. Those schools do not select theirown students, and education in the elementary and secondary environmentgenerally does not involve the free interchange of ideas thought to be anintegral part of higher education. See 426 F.3d at 1208 (Bea, J., dissenting).Extending Grutter to this context would require us to cut that holdingloose from its theoretical moorings. Thus, only by ignoring Grutter‘sreasoning can the dissent claim that recognizing a compellinginterest [*131] in these cases is an a fortiori applicationof Grutter.


Stripped of the baseless and novel interests the dissent asserts on theirbehalf, the school boards cannot plausibly maintain that their plans further acompelling interest. As I explained in Grutter, only "thosemeasures the State must take to provide a bulwark against anarchy . . . or toprevent violence" and "a government's effort to remedy pastdiscrimination for which it is responsible" constitute compellinginterests. 539 U.S., at 351-352, 353, 123 S. Ct. 2325, 156 L. Ed. 2d 304.Neither of the parties has argued — nor could they — that race-based studentassignment is necessary to provide a bulwark against anarchy or to preventviolence. And as I explained above, the school districts have no remedialinterest in pursuing these programs. See Part I-B, supra. Accordingly,the school boards cannot satisfy strict scrutiny. These plans areunconstitutional.


Most of the dissent's criticisms of today's result can be traced to itsrejection of the color-blind Constitution. See post, at 29. The dissentattempts to marginalize the notion of a color-blind Constitution by consigningit to me and Members of today's plurality. [*132] n19 See ibid.;see also post, at 61. But I am quite comfortable in the company I keep.My view of the Constitution is Justice Harlan's view in Plessy:"Our Constitution is color-blind, and neither knows nor tolerates classesamong citizens." Plessy v. Ferguson, 163 U.S. 537, 559, 16S. Ct. 1138, 41 L. Ed. 256 (1896) (dissenting opinion). And my view was therallying cry for the lawyers who litigated Brown. See, e.g.,Brief for Appellants in Brown v. Board of Education, O. T. 1953,Nos. 1, 2, and 4 p. 65 ("That the Constitution is color blind is ourdedicated belief"); Brief for Appellants in Brown v. Board ofEducation, O. T. 1952, No. 1, p. 5 ("The Fourteenth Amendmentprecludes a state from imposing distinctions or classifications based upon raceand color alone"); n20 see also In Memoriam: Honorable Thurgood Marshall,Proceedings of the Bar and Officers of the Supreme Court of the United States,X (1993) (remarks of Judge Motley) ("Marshall had a ‘Bible’ to which heturned during his most depressed moments. The ‘Bible’ would be known in thelegal community as the first Mr. Justice Harlan's dissent in Plessy v. Ferguson,163 U.S. 537, 552, 16 S. Ct. 1138, 41 L. Ed. 256 (1896). [*133] I donot know of any opinion which buoyed Marshall more in his pre-Brown days. . . ").

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n19 The dissent half-heartedly attacks the historical underpinnings of thecolor-blind Constitution. Post, at 28-29. I have no quarrel with theproposition that the Fourteenth Amendment sought to bring former slaves intoAmerican society as full members. Post, at 28 (citing Slaughter-HouseCases, 83 U.S. 36, 16 Wall. 36, 71-72, 21 L. Ed. 394 (1873)). What thedissent fails to understand, however, is that the color-blind Constitution doesnot bar the government from taking measures to remedy past state-sponsoreddiscrimination — indeed, it requires that such measures be taken in certaincircumstances. See, e.g., Part I-B, supra. Race-based governmentmeasures during the 1860's and 1870's to remedy state-enforced slaverywere therefore not inconsistent with the color-blind Constitution.

n20 See also Juris. Statement in Davis v. County School Board, O.T. 1952, No. 3, p. 8 ("We take the unqualified position that theFourteenth Amendment has totally stripped the state of power to make race andcolor the basis for governmental action"); Tr. of Oral Arg. in Brownv. Board of Education, O. T. 1952, No. 1, p. 7 ("We have onefundamental contention which we will seek to develop in the course of thisargument, and that contention is that no State has any authority under theequal-protection clause of the Fourteenth Amendment to use race as a factor inaffording educational opportunities among its citizens"); Tr. of Oral Briggs v. Elliott, O. T. 1953, No. 2, p. 50 ("The stateis deprived of any power to make any racial classifications in any governmentalfield").– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –– [*134]

The dissent appears to pin its interpretation of the Equal Protection Clause tocurrent societal practice and expectations, deference to local officials, likelypractical consequences, and reliance on previous statements from this and othercourts. Such a view was ascendant in this Court's jurisprudence for severaldecades. It first appeared in Plessy, where the Court asked whether astate law providing for segregated railway cars was "a reasonableregulation." 163 U.S., at 550, 16 S. Ct. 1138, 41 L. Ed. 256. The Courtdeferred to local authorities in making its determination, noting that ininquiring into reasonableness "there must necessarily be a large discretionon the part of the legislature." Ibid. The Court likewise paid heedto societal practices, local expectations, and practical consequences bylooking to "the established usages, customs and traditions of the people,and with a view to the promotion of their comfort, and the preservation of thepublic peace and good order." Ibid. Guided by these principles, theCourt concluded: "We cannot say that a law which authorizes or evenrequires the separation of the two races in public conveyances is unreasonable,or more obnoxious to [*135] the Fourteenth Amendment than the actsof Congress requiring separate schools for colored children in the District ofColumbia." Id., at 550-551, 16 S. Ct. 1138, 41 L. Ed. 256.

The segregationists in Brown embraced the arguments the Court endorsedin Plessy. Though Brown decisively rejected those arguments,today's dissent replicates them to a distressing extent. Thus, the dissentargues that "each plan embodies the results of local experience andcommunity consultation." Post, at 47. Similarly, thesegregationists made repeated appeals to societal practice and expectation.See, e.g., Brief for Appellees on Reargument in Briggs v. Elliott,O. T. 1953, No. 2, p. 76 ("[A] State has power to establish a schoolsystem which is capable of efficient administration, taking into account localproblems and conditions"). n21 The dissent argues that "weight [mustbe given] to a local school board's knowledge, expertise, and concerns," post,at 48, and with equal vigor, the segregationists argued for deference to localauthorities. See, e.g., Brief for Kansas on Reargument in Brownv. Board of Education, O. T. 1953, No. 1, p. 14 ("We advocate onlya concept of [*136] constitutional law that permits determinationsof state and local policy to be made on state and local levels. We defend onlythe validity of the statute that enables the Topeka Board of Education todetermine its own course"). n22 The dissent argues that today's decision"threatens to substitute for present calm a disruptive round ofrace-related litigation," post, at 2, and claims that today'sdecision "risks serious harm to the law and for the Nation," post,at 65. The segregationists also relied upon the likely practical consequencesof ending the state-imposed system of racial separation. See, e.g.,Brief for Appellees on Reargument in Davis v. County School Board,O. T. 1953, No. 3, p. 37 ("Yet a holding that school segregation by raceviolates the Constitution will result in upheaval in all of those places notnow subject to Federal judicial scrutiny. This Court has made many decisions ofwidespread effect; none would affect more people more directly in morefundamental interests and, in fact, cause more chaos in local government than areversal of the decision in this case"). n23 And foreshadowing today'sdissent, the segregationists most heavily relied [*137] uponjudicial precedent. See, e.g., Brief for Appellees on Reargument in Briggsv. Elliott, O. T. 1953, No. 2, p. 59 ("It would be difficult indeedto find a case so favored by precedent as is the case for South Carolinahere"). n24

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n21 See also Brief for Appellees in Davis v. County School Board,O. T. 1952, No. 3, p. 1 ("The Court is asked . . . to outlaw the fixedpolicies of the several States which are based on local social conditions wellknown to the respective legislatures"); id., at 9 ("For thispurpose, Virginia history and present Virginia conditions are important");Tr. of Oral Arg. in Davis v. County School Board, O. T. 1952, No.3, p. 57 ("The historical background that exists, certainly in thisVirginia situation, with all the strife and the history that we have shown inthis record, shows a basis, a real basis, for the classification that has beenmade"); id., at 69 (describing the potential abolition ofsegregation as "contrary to the customs, the traditions and the mores ofwhat we might claim to be a great people, established through generations, whothemselves are fiercely and irrevocably dedicated to the preservation of thewhite and colored races"). Accord, post, at 68 ("Today, almost50 years later, attitudes toward race in this Nation have changed dramatically.Many parents, white and black alike, want their children to attend schools withchildren of different races. Indeed, the very school districts that oncespurned integration now strive for it. The long history of their effortsreveals the complexities and difficulties they have faced"); post, at21 (emphasizing the importance of "local circumstances" andencouraging different localities to "try different solutions to commonproblems and gravitate toward those that prove most successful or seem to thembest to suit their individual needs" (citations and internal quotationmarks omitted)); post, at 48 (emphasizing the schooldistricts'"40-year history" during which both school districts havetried numerous approaches "to achieve more integrated schools"); post,at 63 ("The histories of Louisville and Seattle reveal complexcircumstances and a long tradition of conscientious efforts by local schoolboards"). [*138]n22 See also Brief for Appellees in Brown v. Board of Education,O. T. 1952, No. 1, p. 29 ("‘It is universally held, therefore, that eachstate shall determine for itself, subject to the observance of the fundamentalrights and liberties guaranteed by the federal Constitution, how it shallexercise the police power . . . . And in no field is this right of the severalstates more clearly recognized than in that of public education'" (quotingBriggs v. Elliott, 98 F. Supp. 529, 532 (SC 1951))); Brief forAppellees in Briggs v. Elliott, O. T. 1952, No. 2, p. 7("Local self-government in local affairs is essential to the peace andhappiness of each locality and to the strength and stability of our wholefederal system. Nowhere is this more profoundly true than in the field ofeducation"); Tr. of Oral Arg. in Briggs v. Elliott, O. T.1952, No. 2, pp. 54-55 ("What is the great national and federal policy onthis matter? Is it not a fact that the very strength and fiber of our federalsystem is local self-government in those matters for which local action iscompetent? Is it not of all the activities of government the one which mostnearly approaches the hearts and minds of people, the question of the educationof their young? Is it not the height of wisdom that the manner in which thatshall be conducted should be left to those most immediately affected by it, andthat the wishes of the parents, both white and colored, should be ascertainedbefore their children are forced into what may be an unwelcome contact?").Accord, post, at 48 ("Local school boards better understand theirown communities and have a better knowledge of what in practice will best meetthe educational needs of their pupils"); post, at 66 ("What ofrespect for democratic local decisionmaking by States and schoolboards?"); ibid. (explaining "that the Constitution grantslocal school districts a significant degree of leeway"). [*139]n23 See also Reply Brief for Appellees in Davis v. County SchoolBoard, O. T. 1953, No. 3, p. 17 ("The Court is . . . dealing withthousands of local school districts and schools. Is each to be the subject oflitigation in the District Courts?"); Brief for Kansas on Reargument in Brownv. Board of Education, O. T. 1953, No. 1, p. 51 ("The delicatenature of the problem of segregation and the paramount interest of the State ofKansas in preserving the internal peace and tranquility of its people indicatesthat this is a question which can best be solved on the local level, at leastuntil Congress declares otherwise"). Accord, post, at 61 ("Ata minimum, the plurality's views would threaten a surge of race-basedlitigation. Hundreds of state and federal statutes and regulations use racialclassifications for educational or other purposes . . . . In many suchinstances, the contentious force of legal challenges to these classifications,meritorious or not, would displace earlier calm"); post, at 65("Indeed, the consequences of the approach the Court takes today areserious. Yesterday, the plans under review were lawful. Today, they arenot"); post, at 66 (predicting "further litigation,aggravating race-related conflict"). [*140]n24 See also Statement of Appellees Opposing Jurisdiction and Motion to Dismissor Affirm in Davis v. County School Board, O. T. 1952, No. 3, p.5 ("It would be difficult to find from any field of law a legal principlemore repeatedly and conclusively decided than the one sought to be raised by appellants");Brief for Appellees in Davis v. County School Board, O. T. 1953,No. 3, p. 46-47 ("If this case were to be decided solely on the basis ofprecedent, this brief could have been much more limited. There is ampleprecedent in the decisions of this Court to uphold school segregation");Brief for Petitioners in Gebhart v. Belton, O. T. 1952, No. 5, p.27 ("Respondents ask this Court to upset a long established and wellsettled principle recognized by numerous state Legislatures, and Courts, bothstate and federal, over a long period of years"); Tr. of Oral Arg. in Briggsv. Elliott, O. T. 1953, No. 2, p. 79 ("But be that doctrine what itmay, somewhere, sometime to every principle comes a moment of repose when ithas been so often announced, so confidently relied upon, so long continued,that it passes the limits of judicial discretion and disturbance . . . . Werelied on the fact that this Court had not once but seven times, I think it is,pronounced in favor of the separate but equal doctrine. We relied on the factthat the courts of last appeal of some sixteen or eighteen States have passedupon the validity of the separate but equal doctrine vis-a-vis the FourteenthAmendment. We relied on the fact that Congress has continuously since 1862segregated its schools in the District of Columbia"); Brief for Appelleesin Briggs v. Elliott, O. T. 1952, No. 2, App. D (collectingcitations of state and federal cases "which enunciate the principle thatstate laws providing for racial segregation in the public schools do notconflict with the Fourteenth Amendment"). Accord, post, at 22("The Court set forth in Swann a basic principle of constitutionallaw — a principle of law that has found wide acceptance in the legalculture" (citations and internal quotation marks omitted)); post, at25 ("Lower state and federal courts had considered the matter settled anduncontroversial even before this Court decided Swann"); post,at 26 ("Numerous state and federal courts explicitly relied upon Swann‘sguidance for decades to follow"); post, at 27 (stating "howlower courts understood and followed Swann‘s enunciation of the relevantlegal principle"); post, at 30 ("The constitutional principleenunciated in Swann, reiterated in subsequent cases, and relied uponover many years, provides, and has widely been thought to provide,authoritative legal guidance"); post, at 61 ("Today's opinionwill require setting aside the laws of several States and many localcommunities"); post, at 66 ("And what has happened to Swann?To McDaniel? To Crawford? To Harris? To SchoolCommittee of Boston? To Seattle School Dist. No. 1? After decades ofvibrant life, they would all, under the plurality's logic, be written out ofthe law").– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –– [*141]

The similarities between the dissent's arguments and the segregationists’arguments do not stop there. Like the dissent, the segregationists repeatedlycautioned the Court to consider practicalities and not to embrace tootheoretical a view of the Fourteenth Amendment. n25 And just as the dissentargues that the need for these programs will lessen over time, thesegregationists claimed that reliance on segregation was lessening and mighteventually end. n26

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n25 Compare Brief for Appellees in Davis v. County School Board,O. T. 1952, No. 3, p. 16-17 ("‘It is by such practical considerationsbased on experience rather than by theoretical inconsistencies that thequestion of equal protection is to be answered'" (quoting RailwayExpress Agency, Inc. v. New York, 336 U.S. 106, 69 S. Ct. 463, 93 L.Ed. 533 (1949))); Brief for Appellees on Reargument in Davis v. CountySchool Board, O. T. 1953, No. 3, p. 76 ("The question is a practicalone for them to solve; it is not subject to solution in the theoretical realmof abstract principles"); Tr. of Oral Arg. in Davis v. CountySchool Board, O. T. 1953, No. 4, p. 86 ("You cannot talk about thisproblem just in a vacuum in the manner of a law school discussion"), with post,at 57 ("The Founders meant the Constitution as a practicaldocument"). [*142]n26 Compare Brief for Kansas on Reargument in Brown v. Board ofEducation, O. T. 1953, No. 1, p. 57 ("The people of Kansas . . . areabandoning the policy of segregation whenever local conditions and localattitudes make it feasible"), Brief for Appellees on Reargument in Davisv. County School Board, O. T. 1953, No. 3, p. 76 ("As time passes,it may well be that segregation will end"), with post, at 19("They use race-conscious criteria in limited and gradually diminishingways"); post, at 48 ("Each plan's use of race-consciouselements is diminished compared to the use of race in precedingintegration plans"); post, at 55 (describing the"historically-diminishing use of race" in the school districts).– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

What was wrong in 1954 cannot be right today. n27 Whatever else the Court'srejection of the segregationists’ arguments in Brown might haveestablished, it certainly made clear that state and local governments cannottake from the Constitution a right to make decisions on the basis of race byadverse possession. The fact that state and local governmentshad [*143] been discriminating on the basis of race for a long timewas irrelevant to the Brown Court. The fact that racial discriminationwas preferable to the relevant communities was irrelevant to the BrownCourt. And the fact that the state and local governments had relied onstatements in this Court's opinions was irrelevant to the Brown Court.The same principles guide today's decision. None of the considerationstrumpeted by the dissent is relevant to the constitutionality of the schoolboards’ race-based plans because no contextual detail — or collection ofcontextual details, post, at 2-22 — can "provide refuge from theprinciple that under our Constitution, the government may not make distinctionson the basis of race." Adarand, 515 U.S., at 240, 115 S. Ct. 2097,132 L. Ed. 2d 158 (THOMAS, J., concurring in part and concurring in judgment).n28

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n27 It is no answer to say that these cases can be distinguished from Brownbecause Brown involved invidious racial classifications whereas theracial classifications here are benign. See post, at 62. How does onetell when a racial classification is invidious? The segregationists in Brownargued that their racial classifications were benign, not invidious. See Tr. ofOral Arg. in Briggs v. Elliott, O. T. 1953, No. 2, p. 83("It [South Carolina] is confident of its good faith and intention toproduce equality for all of its children of whatever race or color. It isconvinced that the happiness, the progress and the welfare of these children isbest promoted in segregated schools"); Brief for Appellees on Reargumentin Davis v. County School Board, O. T. 1953, No. 3, p. 82-83("Our many hours of research and investigation have led only toconfirmation of our view that segregation by race in Virginia's public schoolsat this time not only does not offend the Constitution of the United States butserves to provide a better education for living for the children of bothraces"); Tr. of Oral Arg. in Davis v. County School Board,O. T. 1952, No. 3, p. 71 ("To make such a transition, would undo what wehave been doing, and which we propose to continue to do for the uplift andadvancement of the education of both races. It would stop this march ofprogress, this onward sweep"). It is the height of arrogance for Membersof this Court to assert blindly that their motives are better thanothers. [*144]n28 See also id., at 8-9 ("It has been urged that [these state lawsand policies] derive validity as a consequence of a long duration supported andmade possible by a long line of judicial decisions, including expressions insome of the decisions of this Court. At the same time, it is urged that theselaws are valid as a matter of constitutionally permissible social experimentationby the States. On the matter of stare decisis, I submit that the duration ofthe challenged practice, while it is persuasive, is not controlling . . . . Asa matter of social experimentation, the laws in question must satisfy therequirements of the Constitution. While this Court has permitted the States tolegislate or otherwise officially act experimentally in the social and economicfields, it has always recognized and held that this power is subject to thelimitations of the Constitution, and that the tests of the Constitution must bemet"); Reply Brief for Appellants in Briggs v. Elliott, O.T. 1953, No. 2, pp. 18-19 ("The truth of the matter is that this is anattempt to place local mores and customs above the high equalitarian principlesof our Government as set forth in our Constitution and particularly theFourteenth Amendment. This entire contention is tantamount to saying that thevindication and enjoyment of constitutional rights recognized by this Court aspresent and personal can be postponed whenever such postponement is claimed tobe socially desirable").– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –– [*145]

In place of the color-blind Constitution, the dissent would permit measures tokeep the races together and proscribe measures to keep the races apart. n29 Seepost, at 28-34, 64-65. Although no such distinction is apparent in theFourteenth Amendment, the dissent would constitutionalize today's faddishsocial theories that embrace that distinction. The Constitution is not thatmalleable. Even if current social theories favor classroom racial engineeringas necessary to "solve the problems at hand," post, at 21, theConstitution enshrines principles independent of social theories. See Plessy,163 U.S., at 559, 16 S. Ct. 1138, 41 L. Ed. 256 (Harlan, J., dissenting)("The white race deems itself to be the dominant race in this country. Andso it is, in prestige, in achievements, in education, in wealth and in power.So, I doubt not, it will continue to be for all time . . . . But in view of theConstitution, in the eye of the law, there is in this country no superior,dominant, ruling class of citizens. . . . Our Constitution is color-blind, andneither knows nor tolerates classes among citizens"). Indeed, if ourhistory has taught us anything, it has taught us to beware of elitesbearing [*146] racial theories. n30 See, e.g., Dred Scottv. Sandford, 60 U.S. 393, 19 How. 393, 407, 15 L. Ed. 691 (1857)("They [members of the "negro African race"] had no rights whichthe white man was bound to respect"). Can we really be sure that theracial theories that motivated Dred Scott and Plessy are a relicof the past or that future theories will be nothing but beneficent andprogressive? That is a gamble I am unwilling to take, and it is one theConstitution does not allow.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n29 The dissent does not face the complicated questions attending its proposedstandard. For example, where does the dissent's principle stop? Can thegovernment force racial mixing against the will of those being mixed? Can thegovernment force black families to relocate to white neighborhoods in the nameif bringing the races together? What about historically black colleges, whichhave "established traditions and programs that might disproportionatelyappeal to one race or another"? United States v. Fordice,505 U.S. 717, 749, 112 S. Ct. 2727, 120 L. Ed. 2d 575 (1992) (THOMAS, J.,concurring). The dissent does not and cannot answer these questions because thecontours of the distinction it propounds rest entirely in the eye of thebeholder. [*147]n30 JUSTICE BREYER's good intentions, which I do not doubt, have the shelf lifeof JUSTICE BREYER's tenure. Unlike the dissenters, I am unwilling to delegatemy constitutional responsibilities to local school boards and allow them toexperiment with race-based decisionmaking on the assumption that theirintentions will forever remain as good as JUSTICE BREYER's. See The FederalistNo. 51, p. 349 (J. Cooke ed. 1961) ("If men were angels, no governmentwould be necessary"). Indeed, the racial theories endorsed by the Seattleschool board should cause the dissenters to question whether local schoolboards should be entrusted with the power to make decisions on the basis ofrace. The Seattle school district's Website formerly contained the followingdefinition of "cultural racism": "Those aspects of society thatovertly and covertly attribute value and normality to white people andwhiteness, and devalue, stereotype, and label people of color as ‘other,’different, less than, or render them invisible. Examples of these norms includedefining white skin tones as nude or flesh colored, having a future timeorientation, emphasizing individualism as opposed to a more collectiveideology, defining one form of English as standard . . . ." See Harrell,School Web Site Removed: Examples of Racism Sparked Controversy, SeattlePost-Intelligencer, June 2, 2006, p. B1. After the site was removed, the districtoffered the comforting clarification that the site was not intended "‘tohold onto unsuccessful concepts such as melting pot or colorblindmentality.'" Ibid.; see also ante, at 22, n. 15 (pluralityopinion).

More recently, the school district sent a delegation of high school students toa "White Privilege Conference." See Equity and Race Relations WhitePrivilege Conference, One conference participantdescribed "white privilege" as "an invisible package of unearnedassets which I can count on cashing in each day, but about which I was meant toremain oblivious. White Privilege is like an invisible weightless knapsack ofspecial provisions, maps, passports, codebooks, visas, clothes, tools, andblank checks." See White Privilege Conference, Questions and Answers, wpc/ faqs.htm; see generally Westneat, School District'sObsessed with Race, Seattle Times, Apr. 1, 2007, p. B1 (describing racial issuesin Seattle schools).– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –– [*148]

* * *

The plans before us base school assignment decisions on students’ race. Because"our Constitution is color-blind, and neither knows nor tolerates classesamong citizens," such race-based decisionmaking is unconstitutional. Plessy,supra, at 559, 16 S. Ct. 1138, 41 L. Ed. 256 (Harlan, J., dissenting). Iconcur in THE CHIEF JUSTICE's opinion so holding.

JUSTICE KENNEDY, concurring in part and concurring in the judgment.

The Nation's schools strive to teach that our strength comes from people ofdifferent races, creeds, and cultures uniting in commitment to the freedom ofall. In these cases two school districts in different parts of the country seekto teach that principle by having classrooms that reflect the racial makeup ofthe surrounding community. That the school districts consider these plans to benecessary should remind us our highest aspirations are yet unfulfilled. But thesolutions mandated by these school districts must themselves be lawful. To makerace matter now so that it might not matter later may entrench the veryprejudices we seek to overcome. In my view the state-mandated racialclassifications at issue, official labels proclaiming the race of all personsin [*149] a broad class of citizens — elementary school students inone case, high school students in another — are unconstitutional as the casesnow come to us.

I agree with THE CHIEF JUSTICE that we have jurisdiction to decide the casesbefore us and join Parts I and II of the Court's opinion. I also join PartsIII-A and III-C for reasons provided below. My views do not allow me to jointhe balance of the opinion by THE CHIEF JUSTICE, which seems to me to beinconsistent in both its approach and its implications with the history,meaning, and reach of the Equal Protection Clause. JUSTICE BREYER's dissentingopinion, on the other hand, rests on what in my respectful submission is amisuse and mistaken interpretation of our precedents. This leads it to advancepropositions that, in my view, are both erroneous and in fundamental conflictwith basic equal protection principles. As a consequence, this separate opinionis necessary to set forth my conclusions in the two cases before the Court.


The opinion of the Court and JUSTICE BREYER's dissenting opinion (hereinafterdissent) describe in detail the history of integration efforts in Louisvilleand Seattle. These plans classify individuals [*150] by race andallocate benefits and burdens on that basis; and as a result, they are to besubjected to strict scrutiny. See Johnson v. California, 543 U.S.499, 505-506, 125 S. Ct. 1141, 160 L. Ed. 2d 949 (2005); ante, at 11.The dissent finds that the school districts have identified a compelling interestin increasing diversity, including for the purpose of avoiding racialisolation. See post, at 37-45. The plurality, by contrast, does notacknowledge that the school districts have identified a compelling interesthere. See ante, at 17-25. For this reason, among others, I do not joinParts III-B and IV. Diversity, depending on its meaning and definition, is acompelling educational goal a school district may pursue.

It is well established that when a governmental policy is subjected to strictscrutiny, "the government has the burden of proving that racialclassifications ‘are narrowly tailored measures that further compellinggovernmental interests.'" Johnson, supra, at 505, 125 S. Ct.1141, 160 L. Ed. 2d 949 (quoting Adarand Constructors, Inc. v. Pena,515 U.S. 200, 227, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995)). "Absentsearching judicial inquiry into the justification for such race-based measures,there is simply [*151] no way of determining what classificationsare ‘benign’ or ‘remedial’ and what classifications are in fact motivated byillegitimate notions of racial inferiority or simple racial politics." Richmondv. J. A. Croson Co., 488 U.S. 469, 493, 109 S. Ct. 706, 102 L. Ed. 2d854 (1989) (plurality opinion). And the inquiry into less restrictivealternatives demanded by the narrow tailoring analysis requires in many cases athorough understanding of how a plan works. The government bears the burden ofjustifying its use of individual racial classifications. As part of that burdenit must establish, in detail, how decisions based on an individual student'srace are made in a challenged governmental program. The Jefferson County Boardof Education fails to meet this threshold mandate.

Petitioner Crystal Meredith challenges the district's decision to deny her sonJoshua McDonald a requested transfer for his kindergarten enrollment. Thedistrict concedes it denied his request "under the guidelines," whichis to say, on the basis of Joshua's race. Brief for Respondents in No. 05-915,p. 10; see also App. in No. 05-915, p. 97. Yet the district also maintains thatthe guidelines do not apply to "kindergartens, [*152] "Brief for Respondents in No. 05-915, at 4, and it fails to explain thediscrepancy. Resort to the record, including the parties’ Stipulation of Facts,further confuses the matter. See App. in No. 05-915, at 43 ("Transferapplications can be denied because of lack of available space or, for studentsin grades other than Primary 1 (kindergarten), the racial guidelines in the District'scurrent student assignment plan"); id., at 29 ("The studentassignment plan does not apply to . . . students in Primary 1"); see alsoStipulation of Facts in No. 3:02-CV-00620-JGH; Doc. 32, Exh. 44, p. 6 (2003-04Jefferson County Public Schools Elementary Student Assignment Application,Section B) ("Assignment is made to a school for Primary 1 (Kindergarten)through Grade Five as long as racial guidelines are maintained. If the Primary1 (Kindergarten) placement does not enhance racial balance, a new applicationmust be completed for Primary 2 (Grade One)").

The discrepancy identified is not some simple and straightforward error thattouches only upon the peripheries of the district's use of individual racialclassifications. To the contrary, Jefferson County in its briefing hasexplained how and [*153] when it employs these classifications onlyin terms so broad and imprecise that they cannot withstand strict scrutiny.See, e.g., Brief for Respondents in No. 05-915, at 4-10. While itacknowledges that racial classifications are used to make certain assignmentdecisions, it fails to make clear, for example, who makes the decisions; whatif any oversight is employed; the precise circumstances in which an assignmentdecision will or will not be made on the basis of race; or how it is determinedwhich of two similarly situated children will be subjected to a givenrace-based decision. See ibid.; see also App. in No. 05-915, at38, 42 (indicating that decisions are "based on . . . the racialguidelines" without further explanation); id., at 81 (setting forththe blanket mandate that "schools shall work cooperatively with each otherand with central office to ensure that enrollment at all schools [in question]is within the racial guidelines annually and to encourage that the enrollmentat all schools progresses toward the midpoint of the guidelines"); id.,at 43, 76-77, 81-83; McFarland v. Jefferson Cty. Public Schools,330 F. Supp. 2d 834, 837-845, 855-862 (WD Ky. 2004). [*154]

When litigation, as here, involves a "complex, comprehensive plan thatcontains multiple strategies for achieving racially integrated schools,"Brief for Respondents in No. 05-915, at 4, these ambiguities become all themore problematic in light of the contradictions and confusions that result.Compare, e.g., App. in No. 05-915, at 37 ("Each [Jefferson County]school . . . has a designated geographic attendance area, which is called the‘resides area’ of the school[, and each] such school is the ‘resides school’for those students whose parent's or guardian's residence address is within theschool's geographic attendance area"); id., at 82 ("Allelementary students . . . shall be assigned to the school which serves the areain which they reside"); and Brief for Respondents in No. 05-915, at 5("There are no selection criteria for admission to [an elementary schoolstudent's] resides school, except attainment of the appropriate age andcompletion of the previous grade"), with App. in No. 05-915, at 38("Decisions to assign students to schools within each cluster are based onavailable space within the [elementary] schools and the racial guidelines inthe District's [*155] current student assignment plan"); id.,at 82 (acknowledging that a student may not be assigned to his or her residesschool if it "has reached . . . the extremes of the racialguidelines").

One can attempt to identify a construction of Jefferson County's studentassignment plan that, at least as a logical matter, complies with thesecompeting propositions; but this does not remedy the underlying problem.Jefferson County fails to make clear to this Court — even in the limitedrespects implicated by Joshua's initial assignment and transfer denial —whether in fact it relies on racial classifications in a manner narrowly tailoredto the interest in question, rather than in the far-reaching, inconsistent, andad hoc manner that a less forgiving reading of the record would suggest.When a court subjects governmental action to strict scrutiny, it cannotconstrue ambiguities in favor of the State.

As for the Seattle case, the school district has gone further in describing themethods and criteria used to determine assignment decisions on the basis ofindividual racial classifications. See, e.g., Brief for Respondents inNo. 05-908, p. 5-11. The district, nevertheless, has [*156] failedto make an adequate showing in at least one respect. It has failed to explainwhy, in a district composed of a diversity of races, with fewer than half ofthe students classified as "white," it has employed the crude racialcategories of "white" and "non-white" as the basis for itsassignment decisions. See, e.g., id., at 1-11.

The district has identified its purposes as follows: "(1) to promote theeducational benefits of diverse school enrollments; (2) to reduce thepotentially harmful effects of racial isolation by allowing students theopportunity to opt out of racially isolated schools; and (3) to make sure thatracially segregated housing patterns did not prevent non-white students from havingequitable access to the most popular over-subscribed schools." Id.,at 19. Yet the school district does not explain how, in the context of itsdiverse student population, a blunt distinction between "white" and"non-white" furthers these goals. As the Court explains, "aschool with 50 percent Asian-American students and 50 percent white studentsbut no African-American, Native-American, or Latino students would qualify asbalanced, while a school with 30 percent Asian-American, [*157] 25percent African-American, 25 percent Latino, and 20 percent white studentswould not." Ante, at 15-16; see also Brief for United States as AmicusCuriae in No. 05-908, pp. 13-14. Far from being narrowly tailored to itspurposes, this system threatens to defeat its own ends, and the school districthas provided no convincing explanation for its design. Other problems areevident in Seattle's system, but there is no need to address them now. As thedistrict fails to account for the classification system it has chosen, despitewhat appears to be its ill fit, Seattle has not shown its plan to be narrowlytailored to achieve its own ends; and thus it fails to pass strict scrutiny.


Our Nation from the inception has sought to preserve and expand the promise ofliberty and equality on which it was founded. Today we enjoy a society that isremarkable in its openness and opportunity. Yet our tradition is to go beyondpresent achievements, however significant, and to recognize and confront theflaws and injustices that remain. This is especially true when we seekassurance that opportunity is not denied on account of race. The enduring hopeis that race should not matter; the [*158] reality is that too oftenit does.

This is by way of preface to my respectful submission that parts of the opinionby THE CHIEF JUSTICE imply an all-too-unyielding insistence that race cannot bea factor in instances when, in my view, it may be taken into account. Theplurality opinion is too dismissive of the legitimate interest government hasin ensuring all people have equal opportunity regardless of their race. Theplurality's postulate that "the way to stop discrimination on the basis ofrace is to stop discriminating on the basis of race," ante, at40-41, is not sufficient to decide these cases. Fifty years of experience sinceBrown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L.Ed. 873 (1954), should teach us that the problem before us defies so easy asolution. School districts can seek to reach Brown‘s objective of equaleducational opportunity. The plurality opinion is at least open to theinterpretation that the Constitution requires school districts to ignore theproblem of de facto resegregation in schooling. I cannot endorse thatconclusion. To the extent the plurality opinion suggests the Constitutionmandates that state and local school authorities must [*159] acceptthe status quo of racial isolation in schools, it is, in my view, profoundlymistaken.

The statement by Justice Harlan that "our Constitution iscolor-blind" was most certainly justified in the context of his dissent inPlessy v. Ferguson, 163 U.S. 537, 559, 16 S. Ct. 1138, 41 L. Ed.256 (1896). The Court's decision in that case was a grievous error it took fartoo long to overrule. Plessy, of course, concerned officialclassification by race applicable to all persons who sought to use railwaycarriages. And, as an aspiration, Justice Harlan's axiom must command ourassent. In the real world, it is regrettable to say, it cannot be a universalconstitutional principle.

In the administration of public schools by the state and local authorities itis permissible to consider the racial makeup of schools and to adopt generalpolicies to encourage a diverse student body, one aspect of which is its racialcomposition. Cf. Grutter v. Bollinger, 539 U.S. 306, 123 S. Ct.2325, 156 L. Ed. 2d 304 (2003); id., at 387-388, 123 S. Ct. 2325, 156 L.Ed. 2d 304 (KENNEDY, J., dissenting). If school authorities are concerned thatthe student-body compositions of certain schools interfere with the objectiveof offering an equal educational [*160] opportunity to all of theirstudents, they are free to devise race-conscious measures to address theproblem in a general way and without treating each student in different fashionsolely on the basis of a systematic, individual typing by race.

School boards may pursue the goal of bringing together students of diversebackgrounds and races through other means, including strategic site selectionof new schools; drawing attendance zones with general recognition of thedemographics of neighborhoods; allocating resources for special programs;recruiting students and faculty in a targeted fashion; and trackingenrollments, performance, and other statistics by race. These mechanisms arerace conscious but do not lead to different treatment based on a classificationthat tells each student he or she is to be defined by race, so it is unlikelyany of them would demand strict scrutiny to be found permissible. See Bushv. Vera, 517 U.S. 952, 958, 116 S. Ct. 1941, 135 L. Ed. 2d 248 (1996)(plurality opinion) ("Strict scrutiny does not apply merely becauseredistricting is performed with consciousness of race . . . . Electoraldistrict lines are ‘facially race neutral’ so a more searching inquiry is necessary [*161]before strict scrutiny can be found applicable in redistricting cases than incases of ‘classifications based explicitly on race'" (quoting Adarand,515 U.S., at 213, 115 S. Ct. 2097, 132 L. Ed. 2d 158)). Executive andlegislative branches, which for generations now have considered these types ofpolicies and procedures, should be permitted to employ them with candor andwith confidence that a constitutional violation does not occur whenever adecisionmaker considers the impact a given approach might have on students ofdifferent races. Assigning to each student a personal designation according toa crude system of individual racial classifications is quite a differentmatter; and the legal analysis changes accordingly.

Each respondent has asserted that its assignment of individual students by raceis permissible because there is no other way to avoid racial isolation in theschool districts. Yet, as explained, each has failed to provide the supportnecessary for that proposition. Cf. Croson, 488 U.S., at 501, 109 S. Ct.706, 102 L. Ed. 2d 854 ("The history of racial classifications in thiscountry suggests that blind judicial deference to legislative or executivepronouncements of necessity has no place in equal protection [*162]analysis"). And individual racial classifications employed in this mannermay be considered legitimate only if they are a last resort to achieve acompelling interest. See id., at 519, 109 S. Ct. 706, 102 L. Ed. 2d 854(KENNEDY, J., concurring in part and concurring in judgment).

In the cases before us it is noteworthy that the number of students whoseassignment depends on express racial classifications is limited. I join PartIII-C of the Court's opinion because I agree that in the context of theseplans, the small number of assignments affected suggests that the schools couldhave achieved their stated ends through different means. These include thefacially race-neutral means set forth above or, if necessary, a more nuanced,individual evaluation of school needs and student characteristics that mightinclude race as a component. The latter approach would be informed by Grutter,though of course the criteria relevant to student placement would differ basedon the age of the students, the needs of the parents, and the role of theschools.


The dissent rests on the assumptions that these sweeping race-basedclassifications of persons are permitted by existing precedents; that itsconfident [*163] endorsement of race categories for each child in alarge segment of the community presents no danger to individual freedom inother, prospective realms of governmental regulation; and that the racialclassifications used here cause no hurt or anger of the type the Constitutionprevents. Each of these premises is, in my respectful view, incorrect.


The dissent's reliance on this Court's precedents to justify the explicit,sweeping, classwide racial classifications at issue here is a misreading of ourauthorities that, it appears to me, tends to undermine well-accepted principlesneeded to guard our freedom. And in his critique of that analysis, I am in manyrespects in agreement with THE CHIEF JUSTICE. The conclusions he has set forthin Part III-A of the Court's opinion are correct, in my view, because thecompelling interests implicated in the cases before us are distinct from theinterests the Court has recognized in remedying the effects of past intentionaldiscrimination and in increasing diversity in higher education. See ante,at 12-13. As the Court notes, we recognized the compelling nature of theinterest in remedying past intentional discrimination in Freeman v. Pitts,503 U.S. 467, 494, 112 S. Ct. 1430, 118 L. Ed. 2d 108 (1992), [*164]and of the interest in diversity in higher education in Grutter. At thesame time, these compelling interests, in my view, do help inform the presentinquiry. And to the extent the plurality opinion can be interpreted toforeclose consideration of these interests, I disagree with that reasoning.

As to the dissent, the general conclusions upon which it relies have noprincipled limit and would result in the broad acceptance of governmentalracial classifications in areas far afield from schooling. The dissent'spermissive strict scrutiny (which bears more than a passing resemblance to rational-basisreview) could invite widespread governmental deployment of racialclassifications. There is every reason to think that, if the dissent'srationale were accepted, Congress, assuming an otherwise proper exercise of itsspending authority or commerce power, could mandate either the Seattle or theJefferson County plans nationwide. There seems to be no principled rule,moreover, to limit the dissent's rationale to the context of public schools.The dissent emphasizes local control, see post, at 48-49, the uniquehistory of school desegregation, see post, at 2, and the factthat [*165] these plans make less use of race than prior plans, see post,at 57, but these factors seem more rhetorical than integral to the analyticalstructure of the opinion.

This brings us to the dissent's reliance on the Court's opinions in Gratzv. Bollinger, 539 U.S. 244, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (2003),and Grutter, 539 U.S. 306, 123 S. Ct. 2325, 156 L. Ed. 2d 304. Iftoday's dissent said it was adhering to the views expressed in the separateopinions in Gratz and Grutter, see Gratz, 539 U.S., at281, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (BREYER, J., concurring in judgment); id.,at 282, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (STEVENS, J., dissenting); id.,at 291, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (SOUTER, J., dissenting); id.,at 298, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (GINSBURG, J., dissenting); Grutter,supra, at 344, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (GINSBURG, J.,concurring), that would be understandable, and likely within the tradition —to be invoked, in my view, in rare instances — that permits us to maintain ourown positions in the face of stare decisis when fundamental points ofdoctrine are at stake. See, e.g., Federal Maritime Comm’n v. SouthCarolina Ports Authority, 535 U.S. 743, 770, 122 S. Ct. 1864, 152 L. Ed. 2d962 (2002) (STEVENS, J., dissenting). To say, however, thatwe [*166] must ratify the racial classifications here at issue basedon the majority opinions in Gratz and Grutter is, with all respect,simply baffling.

Gratz involved a system where race was not the entire classification.The procedures in Gratz placed much less reliance on race than do theplans at issue here. The issue in Gratz arose, moreover, in the contextof college admissions where students had other choices and precedent supportedthe proposition that First Amendment interests give universities particularlatitude in defining diversity. See Regents of Univ. of Cal. v. Bakke,438 U.S. 265, 312-314, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978) (opinion ofPowell, J.). Even so the race factor was found to be invalid. Gratz, supra,at 251, 123 S. Ct. 2411, 156 L. Ed. 2d 257. If Gratz is to be themeasure, the racial classification systems here are a fortiori invalid.If the dissent were to say that college cases are simply not applicable topublic school systems in kindergarten through high school, this would seem tome wrong, but at least an arguable distinction. Under no fair reading, though,can the majority opinion in Gratz be cited as authority to sustain theracial classifications [*167] under consideration here.

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


To uphold these programs the Court is asked to brush aside two concepts ofcentral importance for determining the validity of laws and decrees designed toalleviate the hurt and adverse consequences resulting from race discrimination.The first is the difference between [*168] de jure and defacto segregation; the second, the presumptive invalidity of a State's useof racial classifications to differentiate its treatment of individuals.

In the immediate aftermath of Brown the Court addressed other instanceswhere laws and practices enforced de jure segregation. See, e.g.,Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010(1967) (marriage); New Orleans City Park Improv. Ass’n v. Detiege,358 U.S. 54, 79 S. Ct. 99, 3 L. Ed. 2d 46 (1958) (per curiam) (publicparks); Gayle v. Browder, 352 U.S. 903, 77 S. Ct. 145, 1 L. Ed.2d 114 (1956) (per curiam) (buses); Holmes v. Atlanta, 350U.S. 879, 76 S. Ct. 141, 100 L. Ed. 776 (1955) (per curiam) (golfcourses); Mayor of Baltimore v. Dawson, 350 U.S. 877, 76 S. Ct.133, 100 L. Ed. 774 (1955) (per curiam) (beaches). But with reference toschools, the effect of the legal wrong proved most difficult to correct. Toremedy the wrong, school districts that had been segregated by law had nochoice, whether under court supervision or pursuant to voluntary desegregationefforts, but to resort to extraordinary measures including individual studentand teacher assignment to schools based on race. See, e.g., Swann v. Charlotte-MecklenburgBd. of Ed., 402 U.S. 1, 8-10, 91 S. Ct. 1267, 28 L. Ed. 2d 554(1971); [*169] see also Croson, 488 U.S., at 519, 109 S. Ct.706, 102 L. Ed. 2d 854 (KENNEDY, J., concurring in part and concurring injudgment) (noting that racial classifications "may be the only adequateremedy after a judicial determination that a State or its instrumentality hasviolated the Equal Protection Clause"). So it was, as the dissentobserves, see post, at 13-14, that Louisville classified children byrace in its school assignment and busing plan in the 1970's.

Our cases recognized a fundamental difference between those school districtsthat had engaged in de jure segregation and those whose segregation wasthe result of other factors. School districts that had engaged in de juresegregation had an affirmative constitutional duty to desegregate; those thatwere de facto segregated did not. Compare Green v. CountySchool Bd., 391 U.S. 430, 437-438, 88 S. Ct. 1689, 20 L. Ed. 2d 716 (1968),with Milliken v. Bradley, 418 U.S. 717, 745, 94 S. Ct. 3112, 41L. Ed. 2d 1069 (1974). The distinctions between de jure and de factosegregation extended to the remedies available to governmental units inaddition to the courts. For example, in Wygant v. Jackson Bd. of Ed.,476 U.S. 267, 274, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (1986), [*170]the plurality noted: "This Court never has held that societaldiscrimination alone is sufficient to justify a racial classification. Rather,the Court has insisted upon some showing of prior discrimination by the governmentalunit involved before allowing limited use of racial classifications in order toremedy such discrimination." The Court's decision in Croson, supra,reinforced the difference between the remedies available to redress de factoand de jure discrimination:

"To accept [a] claimthat past societal discrimination alone can serve as the basis for rigid racialpreferences would be to open the door to competing claims for ‘remedial relief’for every disadvantaged group. The dream of a Nation of equal citizens in asociety where race is irrelevant to personal opportunity and achievement wouldbe lost in a mosaic of shifting preferences based on inherently unmeasurableclaims of past wrongs." Id., at 505-506, 109 S. Ct. 706, 102 L. Ed.2d 854.

From the standpoint of the victim, it is true, an injury stemming from racialprejudice can hurt as much when the demeaning treatment based on race identitystems from bias masked deep within the social order as [*171] whenit is imposed by law. The distinction between government and private action,furthermore, can be amorphous both as a historical matter and as a matter ofpresent-day finding of fact. Laws arise from a culture and vice versa. Neithercan assign to the other all responsibility for persisting injustices.

Yet, like so many other legal categories that can overlap in some instances,the constitutional distinction between de jure and de factosegregation has been thought to be an important one. It must be conceded itsprimary function in school cases was to delimit the powers of the Judiciary inthe fashioning of remedies. See, e.g., Milliken, supra, at 746, 94 S.Ct. 3112, 41 L. Ed. 2d 1069. The distinction ought not to be altogetherdisregarded, however, when we come to that most sensitive of all racial issues,an attempt by the government to treat whole classes of persons differentlybased on the government's systematic classification of each individual by race.There, too, the distinction serves as a limit on the exercise of a power thatreaches to the very verge of constitutional authority. Reduction of anindividual to an assigned racial identity for differential treatment is amongthe [*172] most pernicious actions our government can undertake. Theallocation of governmental burdens and benefits, contentious under any circumstances,is even more divisive when allocations are made on the basis of individualracial classifications. See, e.g., Regents of Univ. of Cal. v. Bakke,438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978); Adarand, 515 U.S.200, 115 S. Ct. 2097, 132 L. Ed. 2d 158.

Notwithstanding these concerns, allocation of benefits and burdens throughindividual racial classifications was found sometimes permissible in thecontext of remedies for de jure wrong. Where there has been de juresegregation, there is a cognizable legal wrong, and the courts and legislatureshave broad power to remedy it. The remedy, though, was limited in time andlimited to the wrong. The Court has allowed school districts to remedy theirprior de jure segregation by classifying individual students based ontheir race. See North Carolina Bd. of Ed. v. Swann, 402 U.S. 43,45-46, 91 S. Ct. 1284, 28 L. Ed. 2d 586 (1971). The limitation of this power toinstances where there has been de jure segregation serves to confine thenature, extent, and duration of governmental reliance on individual racialclassifications. [*173]

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


The dissent refers to an opinion filed by Judge Kozinski in one of the casesnow before us, and that opinion relied upon an opinion filed by Chief JudgeBoudin in a case presenting an issue similar to the one here. See post,at 35 (citing 426 F.3d 1162, 1193-1196 (CA9 2005) (concurring opinion) (citing Comfortv. Lynn School Comm., 418 F.3d 1, 27-29 (CA1 2005) (Boudin, C. J.,concurring))). Though this may oversimplify the matter a bit, one of the mainconcerns underlying those opinions was this: If it is legitimate for schoolauthorities to work to avoid racial isolation in their schools, must they do soonly by indirection and general policies? Does the Constitution mandate thisinefficient result? Why may the authorities [*174] not recognize theproblem in candid fashion and solve it altogether through resort to directassignments based on student racial classifications? So, the argument proceeds,if race is the problem, then perhaps race is the solution.

The argument ignores the dangers presented by individual classifications,dangers that are not as pressing when the same ends are achieved by moreindirect means. When the government classifies an individual by race, it mustfirst define what it means to be of a race. Who exactly is white and who is nonwhite?To be forced to live under a state-mandated racial label is inconsistent withthe dignity of individuals in our society. And it is a label that an individualis powerless to change. Governmental classifications that command people tomarch in different directions based on racial typologies can cause a newdivisiveness. The practice can lead to corrosive discourse, where race servesnot as an element of our diverse heritage but instead as a bargaining chip inthe political process. On the other hand race-conscious measures that do notrely on differential treatment based on individual classifications presentthese problems to a lesser degree.

The idea [*175] that if race is the problem, race is the instrumentwith which to solve it cannot be accepted as an analytical leap forward. And ifthis is a frustrating duality of the Equal Protection Clause it simply reflectsthe duality of our history and our attempts to promote freedom in a world thatsometimes seems set against it. Under our Constitution the individual, child oradult, can find his own identity, can define her own persona, without stateintervention that classifies on the basis of his race or the color of her skin.

* * *

This Nation has a moral and ethical obligation to fulfill its historiccommitment to creating an integrated society that ensures equal opportunity forall of its children. A compelling interest exists in avoiding racial isolation,an interest that a school district, in its discretion and expertise, may chooseto pursue. Likewise, a district may consider it a compelling interest toachieve a diverse student population. Race may be one component of thatdiversity, but other demographic factors, plus special talents and needs,should also be considered. What the government is not permitted to do, absent ashowing of necessity not made here, is to classify every [*176]student on the basis of race and to assign each of them to schools based onthat classification. Crude measures of this sort threaten to reduce children toracial chits valued and traded according to one school's supply and another'sdemand.

That statement, to be sure, invites this response: A sense of stigma mayalready become the fate of those separated out by circumstances beyond theirimmediate control. But to this the replication must be: Even so, measures otherthan differential treatment based on racial typing of individuals first must beexhausted.

The decision today should not prevent school districts from continuing theimportant work of bringing together students of different racial, ethnic, andeconomic backgrounds. Due to a variety of factors — some influenced bygovernment, some not — neighborhoods in our communities do not reflect thediversity of our Nation as a whole. Those entrusted with directing our publicschools can bring to bear the creativity of experts, parents, administrators,and other concerned citizens to find a way to achieve the compelling intereststhey face without resorting to widespread governmental allocation of benefitsand burdens on the basis [*177] of racial classifications.

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



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

There is a cruel irony in THE CHIEF JUSTICE's reliance on our decision in Brownv. Board of Education, 349 U.S. 294, 75 S. Ct. 753, 99 L. Ed. 1083, 71Ohio Law Abs. 584 (1955). The first sentence in the concluding paragraph of hisopinion states: "Before Brown, schoolchildren were told where theycould and could not go to school based on the color of their skin." Ante,at 40. This sentence reminds me of Anatole France's observation: "Themajestic equality of the law, forbids rich and poor alike to sleep underbridges, to beg in the streets, and to steal their bread." n1 THE CHIEFJUSTICE fails to note that it was only black schoolchildren who were soordered; indeed, the history books do not tell stories of white childrenstruggling to attend black schools. n2 In this and other ways, THE CHIEFJUSTICE rewrites the history of one of this Court's most important decisions.Compare ante, at 39 ("history will be heard"), with Brewerv. Quarterman, 550 U.S. , , 127 S.Ct. 1706, 167 L. Ed. 2d 622 (2007) (slip op., at 11 [*178] )(ROBERTS, C. J., dissenting) ("It is a familiar adage that history iswritten by the victors").

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n1 Le Lys Rouge (The Red Lily) 95 (W. Stephens transl. 6th ed. 1922).

n2 See, e.g., J. Wilkinson, From Brown to Bakke 11 (1979)("Everyone understands that Brown v. Board of Educationhelped deliver the Negro from over three centuries of legal bondage");Black, The Lawfulness of the Segregation Decisions, 69 Yale L. J. 421, 424-425("History, too, tells us that segregation was imposed on one race by theother race; consent was not invited or required. Segregation in the South grewup and is kept going because and only because the white race has wanted it thatway — an incontrovertible fact which itself hardly consorts withequality").– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

THE CHIEF JUSTICE rejects the conclusion that the racial classifications atissue here should be viewed differently than others, because they do not imposeburdens on one race alone and do [*179] not stigmatize or exclude.n3 The only justification for refusing to acknowledge the obvious importance ofthat difference is the citation of a few recent opinions — none of which evenapproached unanimity — grandly proclaiming that all racial classificationsmust be analyzed under "strict scrutiny." See, e.g., AdarandConstructors, Inc. v. Pe

a, 515 U.S. 200, 227, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995). Eventoday, two of our wisest federal judges have rejected such a wooden reading ofthe Equal Protection Clause in the context of school integration. See 426 F.3d1162, 1193-1196 (CA9 2005) (Kozinski, J., concurring); Comfort v. LynnSchool Comm., 418 F.3d 1, 27-29 (CA1 2005) (Boudin, C. J., concurring). TheCourt's misuse of the three-tiered approach to Equal Protection analysis merelyreconfirms my own view that there is only one such Clause in the Constitution.See Craig v. Boren, 429 U.S. 190, 211, 97 S. Ct. 451, 50 L. Ed.2d 397 (1976) (concurring opinion). n4

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n3 I have long adhered to the view that a decision to exclude a member of aminority because of his race is fundamentally different from a decision toinclude a member of a minority for that reason. See, e.g., AdarandConstructors, 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. JacksonBd. 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 minorityschoolchildren receive from an integrated education, see, e.g., ante,at 15 (THOMAS, J., concurring), children of all races benefit fromintegrated classrooms and playgrounds, see Wygant, 476 U.S., at 316, 106S. Ct. 1842, 90 L. Ed. 2d 260 ("The fact that persons of different racesdo, indeed, have differently colored skin, may give rise to a belief that thereis some significant difference between such persons. The inclusion of minorityteachers in the educational process inevitably tends to dispel that illusionwhereas their exclusion could only tend to foster it"). [*180]n4 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 12,23. In that case, I stressed the importance of confining a remedy for pastwrongdoing 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 likeour decision in Wygant, 476 U.S. 267, 106 S. Ct. 1842, 90 L. Ed. 2d 260,require us to "ask whether the Board[s’] actionss advance the publicinterest 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 theBoard of Education has been guilty of racial discrimination in the past tosupport the conclusion that it has a legitimate interest in employing moreblack teachers in the future"). See also Adarand, 515 U.S., at261-262, 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 mostimportantly a forward-looking response to practical problems faced by minoritysubcontractors").– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

If [*181] we look at cases decided during the interim between Brownand Adarand, we can see how a rigid adherence to tiers of scrutinyobscures Brown‘s clear message. Perhaps the best example is provided byour approval of the decision of the Supreme Judicial Court of Massachusetts in1967 upholding a state statute mandating racial integration in that State'sschool system. See School Comm. of Boston v. Board of Education, 352Mass. 693, 227 N.E.2d 729. n5 Rejecting arguments comparable to those that theplurality accepts today, n6 that court noted: "It would be the height ofirony if the racial imbalance act, enacted as it was with the laudable purposeof achieving equal educational opportunities, should, by prescribing schoolpupil allocations based on race, founder on unsuspected shoals in theFourteenth Amendment." Id., at 698, 227 N. E. 2d, at 733 (footnoteomitted).

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n5 THE CHIEF JUSTICE states that the Massachusetts racial imbalance Act did notrequire express classifications. See ante, at 31-32, n. 16. This isincorrect. The Massachusetts Supreme Judicial Court expressly stated:

"The racial imbalance act requires the school committee of everymunicipality annually to submit statistics showing the percentage of nonwhitepupils in all public schools and in each school. Whenever the board finds thatracial imbalance exists in a public school, it shall give written notice to theappropriate school committee, which shall prepare a plan to eliminate imbalanceand file a copy with the board. ‘The term "racial imbalance" refersto a ratio between nonwhite and other students in public schools which issharply out of balance with the racial composition of the society in which nonwhitechildren study, serve and work. For the purpose of this section, racialimbalance shall be deemed to exist when the per cent of nonwhite students inany public school is in excess of fifty per cent of the total number ofstudents in such school.'" 352 Mass., at 695, 227 N. E. 2d, at731. [*182]n6 Compare ante, at 39 ("It was not the inequality of thefacilities but the fact of legally separating children on the basis of race onwhich the Court relied to find a constitutional violation in 1954"), withJuris. 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 ofEducation of Topeka, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873, that coloror race is a constitutionally impermissible standard for the assignment ofschool children to public schools. We construe Brown as endorsing Mr.Justice Harlan's classical statement in Plessy v. Ferguson, 163U.S. 537, 539, 16 S. Ct. 1138, 41 L. Ed. 256: ‘Our constitution is color-blind,and neither knows nor tolerates classes among citizens'").– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

Invoking our mandatory appellate jurisdiction, n7 the Boston plaintiffsprosecuted an appeal in this Court. Our ruling on the merits simply stated thatthe appeal was "dismissed for want of a substantial federalquestion." School Comm. of Boston v. Board of Education, 389U.S. 572, 88 S. Ct. 692, 19 L. Ed. 2d 778 (1968) (per curiam). Thatdecision not [*183] only expressed our appraisal of the merits ofthe appeal, but it constitutes a precedent that the Court overrules today. Thesubsequent statements by the unanimous Court in Swann v. Charlotte-MecklenburgBd. of Ed., 402 U.S. 1, 16, 91 S. Ct. 1267, 28 L. Ed. 2d 554 (1971), bythen-Justice Rehnquist in chambers in Bustop, Inc. v. Los Angeles Bd.of Ed., 439 U.S. 1380, 1383, 99 S. Ct. 40, 58 L. Ed. 2d 88 (1978), and bythe host of state court decisions cited by JUSTICE BREYER, see post,25-27, n8 were fully consistent with that disposition. Unlike today's decision,they were also entirely loyal to Brown.

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n7 In 1968 our mandatory jurisdiction was defined by the provision of the 1948Judicial Code then codified at 28 U.S.C. § 1257, see 62 Stat. 929; thatprovision was repealed in 1988, see 102 Stat. 662.

n8 For example, prior to our decision in School Comm. of Boston, theIllinois Supreme Court had issued an unpublished opinion holdingunconstitutional a similar statute aimed at eliminating racial imbalance inpublic schools. See Juris. Statement in School Comm. of Boston v. Boardof Education, O. T. 1967, No. 67-759, at 9 ("Unlike the MassachusettsCourt, the Illinois Supreme Court has recently held its law to eliminate racialimbalance unconstitutional on the ground that it violated the Equal ProtectionClause of the Fourteenth Amendment"); ibid., n. 1. However, shortlyafter we dismissed the Massachusetts suit for want of a substantial federalquestion, the Illinois Supreme Court reversed course and upheld its statute inthe 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 inexplicit 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 SupremeCourt on January 15, 1968, dismissed an appeal in School Committee of Bostonv. Board of Education, (Mass. 1967) 352 Mass. 693, 227 N.E.2d 729, whichchallenged the statute providing for elimination of racial imbalance in publicschools ‘for want of a substantial federal question.’ 389 U.S. 572, 88 S. Ct.692, 19 L. Ed. 2d 778″).– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – –– [*184]

The Court has changed significantly since it decided School Comm. of Bostonin 1968. It was then more faithful to Brown and more respectful of ourprecedent than it is today. It is my firm conviction that no Member of theCourt that I joined in 1975 would have agreed with today's decision.


These cases consider the longstanding efforts of two local school boards tointegrate their public schools. The school board plans before us resemble manyothers adopted in the last 50 years by primary and secondary schools throughoutthe Nation. All of those plans represent local efforts to bring about the kindof 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 — effortsthat this Court has repeatedly required, permitted, and encouraged localauthorities to undertake. This Court has recognized that the public interestsat stake in such cases are "compelling." We have approved of"narrowly tailored" plans that are no less race-conscious than theplans before us. And we have understood that the Constitution [*185]permits local communities to adopt desegregation plans even where itdoes 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 distortsprecedent, it misapplies the relevant constitutional principles, it announceslegal rules that will obstruct efforts by state and local governments to dealeffectively with the growing resegregation of public schools, it threatens tosubstitute for present calm a disruptive round of race-related litigation, andit undermines Brown‘s promise of integrated primary and secondaryeducation that local communities have sought to make a reality. This cannot bejustified in the name of the Equal Protection Clause.



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 raceviolates the Constitution's promise of equal protection. The Court emphasizedthat "education is perhaps the most important function of state and localgovernments." [*186] 347 U.S., at 493, 74 S. Ct. 686, 98 L.Ed. 2d 873. And it thereby set the Nation on a path toward pub-lic schoolintegration.

In dozens of subsequent cases, this Court told school districts previouslysegregated by law what they must do at a minimum to comply with Brown‘sconstitutional holding. The measures required by those cases often includedrace-conscious practices, such as mandatory busing and race-based restrictionson 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); Davisv. 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, 391U.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 ofhow to achieve integration to the judgment of local communities. Thus, inrespect to race-conscious desegregation measures that the Constitution permitted,but did not require (measures similar to those at issue here), thisCourt unanimously stated:

"School authoritiesare traditionally charged with broad power to formulate and implementeducational policy and might well conclude, [*187] for example,that in order to prepare students to live in a pluralistic society each schoolshould have a prescribed ratio of Negro to white students reflecting theproportion for the district as a whole. To do this as an educational policyis within the broad discretionary powers of school authorities." Swannv. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 16, 91 S. Ct. 1267, 28L. Ed. 2d 554 (1971) (emphasis added).

As a result, different districts — some acting under court decree, some actingin order to avoid threatened lawsuits, some seeking to comply with federaladministrative orders, some acting purely voluntarily, some acting afterfederal courts had dissolved earlier orders — adopted, modified, andexperimented with hosts of different kinds of plans, including race-consciousplans, all with a similar objective: greater racial integration of publicschools. See F. Welch & A. Light, New Evidence on School Desegregation v(1987) (hereinafter Welch) (prepared for the Commission on Civil Rights)(reviewing a sample of 125 school districts, constituting 20% of nationalpublic school enrollment, that had experimented with nearly 300 different plansover 18 years). The techniques that [*188] different districts haveemployed range "from voluntary transfer programs to mandatoryreassignment." Id., at 21. And the design of particular plans hasbeen "dictated by both the law and the specific needs of thedistrict." Ibid.

Overall these efforts brought about considerable racial integration. Morerecently, however, progress has stalled. Between 1968 and 1980, the number ofblack children attending a school where minority children constituted more thanhalf of the school fell from 77% to 63% in the Nation (from 81% to 57% in theSouth) but then reversed direction by the year 2000, rising from 63% to 72% inthe Nation (from 57% to 69% in the South). Similarly, between 1968 and 1980,the number of black children attending schools that were more than 90% minorityfell from 64% to 33% in the Nation (from 78% to 23% in the South), but that tooreversed direction, rising by the year 2000 from 33% to 37% in the Nation (from23% to 31% in the South). As of 2002, almost 2.4 million students, or over 5%of all public school enrollment, attended schools with a white population ofless than 1%. Of these, 2.3 million were black and Latino students, and only72,000 were [*189] white. Today, more than one in six black childrenattend a school that is 99-100% minority. See Appendix A, infra. Inlight 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 tomaintain or to extend their integration efforts.

The upshot is that myriad school districts operating in myriad circumstanceshave devised myriad plans, often with race-conscious elements, all for the sakeof eradicating earlier school segregation, bringing about integration, orpreventing retrogression. Seattle and Louisville are two such districts, andthe histories of their present plans set forth typical school integrationstories.

I describe those histories at length in order to highlight three importantfeatures of these cases. First, the school districts’ plans serve"compelling interests" and are "narrowly tailored" on anyreasonable definition of those terms. Second, the distinction between dejure segregation (caused by school systems) and de facto segregation(caused, e.g., by housing patterns or generalized societaldiscrimination) is meaningless in the present context, thereby doomingthe [*190] plurality's endeavor to find support for its views inthat distinction. Third, real-world efforts to substitute racially diverse forracially segregated schools (however caused) are complex, to the point wherethe Constitution cannot plausibly be interpreted to rule out categorically alllocal efforts to use means that are "conscious" of the race ofindividuals.

In both Seattle and Louisville, the local school districts began with schoolsthat were highly segregated in fact. In both cities plaintiffs filed lawsuitsclaiming unconstitutional segregation. In Louisville, a federal district courtfound that school segregation reflected pre-Brown state laws separatingthe races. In Seattle, the plaintiffs alleged that school segregationunconstitutionally reflected not only generalized societal discrimination andresidential housing patterns, but also school board policies and actionsthat had helped to create, maintain, and aggravate racial segregation. InLouisville, a federal court entered a remedial decree. In Seattle, the partiessettled after the school district pledged to undertake a desegregation plan. Inboth cities, the school boards adopted plans designed toachieve [*191] integration by bringing about more racially diverseschools. In each city the school board modified its plan several times in lightof, for example, hostility to busing, the threat of resegregation, and thedesirability of introducing greater student choice. And in each city, theschool boards’ plans have evolved over time in ways that progressively diminishthe plans’ use of explicit race-conscious criteria.

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



1. Segregation, 1945 to 1956. During and just after World War II,significant numbers of black Americans began to make Seattle their home. Fewblack residents lived outside the central section of the city. Most worked atunskilled jobs. Although black students made up about 3% of the total Seattlepopulation in the mid-1950's, nearly all black children attended schools wherea majority of the population was minority. Elementary schools in centralSeattle were between 60% and 80% black; Garfield, the central district highschool, was more than 50% [*192] minority; schools outside the centraland southeastern sections of Seattle were virtually all white.

2. Preliminary Challenges, 1956 to 1969. In 1956, a memo for the SeattleSchool Board reported that school segregation reflected not only segregatedhousing patterns but also school board policies that permitted white studentsto transfer out of black schools while restricting the transfer of blackstudents into white schools. In 1958, black parents whose children attendedHarrison Elementary School (with a black student population of over 75%) wrotethe Seattle board, complaining that the "‘boundaries for the HarrisonElementary School were not set in accordance with the long-establishedstandards of the School District . . . but were arbitrarily set with an end toexcluding colored children from McGilvra School, which is adjacent to theHarrison school district.'"

In 1963, at the insistence of the National Association for the Advancement ofColored People (NAACP) and other community groups, the school board adopted anew race-based transfer policy. The new policy added an explicitly racialcriterion: If a place exists in a school, then, irrespective of other transfercriteria, [*193] a white student may transfer to a predominantlyblack school, and a black student may transfer to a predominantly white school.

At that time one high school, Garfield, was about two-thirds minority; eighthigh schools were virtually all white. In 1963, the transfer program's firstyear, 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 thedistrict'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, claimingthat the board had "unlawfully and unconstitutionally""established" and "maintained" a system of "raciallysegregated public schools." The complaint said that 77% of black publicelementary school students in Seattle attended 9 of the city's 86 elementaryschools and that 23 of the remaining schools had no black students at all.Similarly, of the 1,461 black students enrolled in the 12 senior high schoolsin Seattle, 1,151 (or 78.8%) attended 3 senior high schools, [*194]and 900 (61.6%) attended a single school, Garfield.

The complaint charged that the school board had brought about this segregatedsystem in part by "making and enforcing" certain "rules and regulations,"in part by "drawing . . . boundary lines" and "executing schoolattendance policies" that would create and maintain "predominantlyNegro or non-white schools," and in part by building schools "in sucha manner as to restrict the Negro plaintiffs and the class they represent topredominantly negro or non-white schools." The complaint also charged thatthe board discriminated in assigning teachers.

The board responded to the lawsuit by introducing a plan that requiredrace-based transfers and mandatory busing. The plan created three new middleschools at three school buildings in the predominantly white north end. It thencreated a "mixed" student body by assigning to those schools studentswho would otherwise attend predominantly white, or predominantly black, schoolselsewhere. It used explicitly racial criteria in making these assignments (i.e.,it deliberately assigned to the new middle schools black students, not whitestudents, from the black schools and white students, not [*195]black students, from the white schools). And it used busing to transport thestudents to their new assignments. The plan provoked considerable localopposition. Opponents brought a lawsuit. But eventually a state court foundthat 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 and400 white students participated in the previously adopted voluntary transferprogram. Thus about 2,000 students out of a total district population of about60,000 students were involved in one or the other transfer program. At thattime, about 20% or 12,000 of the district's students were black. And the boardcontinued to describe 26 of its 112 schools as "segregated."

4. The NAACP's Second Legal Challenge, 1977. In 1977, the NAACP filedanother legal complaint, this time with the federal Department of Health,Education, and Welfare's Office for Civil Rights (OCR). The complaint allegedthat the Seattle School Board had created or perpetuated unlawful racialsegregation through, e.g., certain school-transfer criteria, aconstruction program that needlessly built [*196] new schools inwhite areas, district line-drawing criteria, the maintenance of inferiorfacilities at black schools, the use of explicit racial criteria in theassignment of teachers and other staff, and a general pattern of delay inrespect to the implementation of promised desegregation efforts.

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

5. The Seattle Plan: Mandatory Busing, 1978 to 1988. The board began toimplement 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 thatlabel to 26 schools, including 4 high schools — Cleveland (72.8% minority),Franklin (76.6% minority), Garfield (78.4% minority), and Rainier Beach (58.9%minority). The plan paired (or "triaded") "imbalanced"black schools with "imbalanced" white schools. It then placed somegrades (say, third and fourth grades) at one school building and other grades(say, fifth and sixth grades) at the other school building. And it therebyrequired, [*197] for example, all fourth grade students from thepreviously black and previously white schools first to attend together whatwould now be a "mixed" fourth grade at one of the school buildingsand then the next year to attend what would now be a "mixed" fifthgrade at the other school building.

At the same time, the plan provided that a previous "black" schoolwould remain about 50% black, while a previous "white" school wouldremain about two-thirds white. It was consequently necessary to decide withsome care which students would attend the new "mixed" grade.For this purpose, administrators cataloged the racial makeup of eachneighborhood housing block. The school district met its percentage goals byassigning to the new "mixed" school an appropriate number of"black" housing blocks and "white" housing blocks. At thesame time, transport from house to school involved extensive busing, with abouthalf of all students attending a school other than the one closest to theirhome.

The Seattle Plan achieved the school integration that it sought. Just prior tothe plan's implementation, for example, 4 of Seattle's 11 high schools were"imbalanced," i.e., almost exclusively "black"[*198] or almost exclusively "white." By 1979, only twowere 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 oppositionwithin 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 torequire 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 challengedthe 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 haveprevented the Seattle Plan from taking effect — violated the FourteenthAmendment. Id., at 470, 102 S. Ct. 3187, 73 L. Ed. 2d 896.

6. Student Choice, 1988 to 1998. By 1988, many white families had leftthe school district, and many Asian families had moved in. The public schoolpopulation had fallen from about 100,000 to less than 50,000. The racial makeupof the school population amounted to 43% white, 24% black, and 23% Asian orPacific Islander, with Hispanics and Native Americans [*199] makingup the rest. The cost of busing, the harm that members of all racialcommunities feared that the Seattle Plan caused, the desire to attract whitefamilies back to the public schools, and the interest in providing greater schoolchoice led the board to abandon busing and to substitute a new studentassignment policy that resembles the plan now before us.

The new plan permitted each student to choose the school he or she wished toattend, subject to race-based constraints. In respect to high schools, forexample, a student was given a list of a subset of schools, carefully selectedby the board to balance racial distribution in the district by includingneighborhood schools and schools in racially different neighborhoods elsewherein the city. The student could then choose among those schools, indicating afirst choice, and other choices the student found acceptable. In making anassignment to a particular high school, the district would give firstpreference to a student with a sibling already at the school. It gave secondpreference to a student whose race differed from a race that was"over-represented" at the school (i.e., a race that accountedfor a higher percentage [*200] of the school population than of thetotal district population). It gave third preference to students residing inthe neighborhood. It gave fourth preference to students who received child carein the neighborhood. In a typical year, say, 1995, about 20,000 potential highschool students participated. About 68% received their first choice. Another16% received an "acceptable" choice. A further 16% were assigned to aschool they had not listed.

7. The Current Plan, 1999 to the Present. In 1996, the school boardadopted the present plan, which began in 1999. In doing so, it sought todeemphasize the use of racial criteria and to increase the likelihood that astudent would receive an assignment at his first or second choice high school.The district retained a racial tiebreaker for oversubscribed schools, whichtakes effect only if the school's minority or majority enrollment falls outsideof a 30% range centered on the minority/majority population ratio within thedistrict. At the same time, all students were free subsequently to transferfrom the school at which they were initially placed to a different school oftheir choice without regard to race. Thus, at worst, a studentwould [*201] have to spend one year at a high school he did not pickas a first or second choice.

The new plan worked roughly as expected for the two school years during whichit was in effect (1999-2000 and 2000-2001). In the 2000-2001 school year, forexample, with the racial tiebreaker, the entering ninth grade class at FranklinHigh School had a 60% minority population; without the racial tiebreaker thatsame class at Franklin would have had an almost 80% minority population. (Weconsider only the ninth grade since only students entering that class weresubject to the tiebreaker, and because the plan was not in place long enough tochange the composition of an entire school.) In the year 2005-2006, by whichtime the racial tiebreaker had not been used for several years, Franklin'soverall minority enrollment had risen to 90%. During the period the tiebreakerapplied, 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 mostrecent plan under the State and Federal Constitutions. [*202] Indue course, the Washington Supreme Court, the Federal District Court, and theCourt of Appeals for the Ninth Circuit (sitting en banc) rejected the challengeand found Seattle's plan lawful.



1. Before the Lawsuit, 1954 to 1972. In 1956, two years after Brown madeclear that Kentucky could no longer require racial segregation by law, theLouisville Board of Education created a geography-based student assignment plandesigned to help achieve school integration. At the same time it adopted anopen transfer policy under which approximately 3,000 of Louisville's 46,000students applied for transfer. By 1972, however, the Louisville School Districtremained highly segregated. Approximately half the district's public schoolenrollment was black; about half was white. Fourteen of the district's nineteennon-vocational middle and high schools were close to totally black or totallywhite. 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, civilrights groups and parents, claiming unconstitutional [*203]segregation, sued the Louisville Board of Education in federal court. Theoriginal litigation eventually became a lawsuit against the Jefferson CountySchool System, which in April 1975 absorbed Louisville's schools and combinedthem with those of the surrounding suburbs. (For ease of exposition, I shallstill use "Louisville" to refer to what is now the combineddistricts.) After preliminary rulings and an eventual victory for theplaintiffs in the Court of Appeals for the Sixth Circuit, the District Court inJuly 1975 entered an order requiring desegregation.

The order's requirements reflected a (newly enlarged) school district studentpopulation of about 135,000, approximately 20% of whom were black. The orderrequired the school board to create and to maintain schools with studentpopulations that ranged, for elementary schools, between 12% and 40% black, andfor secondary schools (with one exception), between 12.5% and 35% black.

The District Court also adopted a complex desegregation plan designed toachieve the order's targets. The plan required redrawing school attendancezones, closing 12 schools, and busing groups of students, selected by race andthe first letter of their [*204] last names, to schools outsidetheir immediate neighborhoods. The plan's initial busing requirements wereextensive, involving the busing of 23,000 students and a transportation fleetthat had to "operate from early in the morning until late in theevening." For typical students, the plan meant busing for several years (severalmore years for typical black students than for typical white students). Thefollowing notice, published in a Louisville newspaper in 1976, gives a sense ofhow the district's race-based busing plan operated in practice:


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

The District Court monitored implementation of the plan. In 1978, it found thatthe 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 whilestating that it expected the board "to continue to implement thoseportions of the desegregation order which are by their nature of a continuingeffect. [*205] "

By 1984, after several schools had fallen out of compliance with the order'sracial percentages due to shifting demographics in the community, the school boardrevised its desegregation plan. In doing so, the board created a new racial"guideline," namely a "floating range of 10% above and 10% belowthe countywide average for the different grade levels." The boardsimultaneously redrew district boundaries so that middle school students couldattend the same school for three years and high school students for four years.It added "magnet" programs at two high schools. And it adjusted itsalphabet-based system for grouping and busing students. The board estimatedthat its new plan would lead to annual reassignment (with busing) of about8,500 black students and about 8,000 white students.

3. Student Choice and Project Renaissance, 1991 to 1996. By 1991, theboard had concluded that assigning elementary school students to two or moreschools during their elementary school years had proved educationally unsoundand, if continued, would undermine Kentucky's newly adopted Education ReformAct. It consequently conducted a nearly year-long review of its plan. In doingso, it consulted [*206] widely with parents and other members of thelocal community, using public presentations, public meetings, and various othermethods to obtain the public's input. At the conclusion of this review, theboard adopted a new plan, called "Project Renaissance," thatemphasized student choice.

Project Renaissance again revised the board's racial guidelines. It providedthat each elementary school would have a black student population of between15% and 50%; each middle and high school would have a black population and awhite population that fell within a range, the boundaries of which were set at15% above and 15% below the general student population percentages in thecounty at that grade level. The plan then drew new geographical schoolassignment zones designed to satisfy these guidelines; the district couldreassign students if particular schools failed to meet the guidelines and wasrequired to do so if a school repeatedly missed these targets.

In respect to elementary schools, the plan first drew a neighborhood linearound each elementary school, and it then drew a second line around groups ofelementary schools (called "clusters"). It initially assigned eachstudent to his or her [*207] neighborhood school, but it permittedeach student freely to transfer between elementary schools within each cluster providedthat the transferring student (a) was black if transferring from apredominantly black school to a predominantly white school, or (b) was white iftransferring 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 herneighborhood school unless the student applied for, and was accepted by, amagnet middle school. The plan provided for "open" high schoolenrollment. Every 9th or 10th grader could apply to any high school in thesystem, and the high school would accept applicants according to set criteria— one of which consisted of the need to attain or remain in compliance withthe 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 1995and 1996, the Louisville School Board, with the help of a special"Planning Team," community meetings, and otherofficial [*208] and unofficial study groups, monitored the effectsof Project Renaissance and considered proposals for improvement. Consequently,in 1996, the board modified Project Renaissance, thereby creating the presentplan.

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

The plan also established "Parent Assistance Centers" to help parentsand students navigate the school selection and assignment process. It pledgedthe use of other resources in order to "encourage all schools to achievean African-American enrollment equivalent to the average district-wideAfrican-American enrollment at the school's respective elementary, middle or highschool level." And the plan continued use of magnet [*209]schools.

In 1999, several parents brought a lawsuit in federal court attacking theplan's use of racial guidelines at one of the district's magnet schools. Theyasked the court to dissolve the desegregation order and to hold the use of magnetschool racial guidelines unconstitutional. The board opposed dissolution,arguing that "the old dual system" had left a "demographicimbalance" that "prevented dissolution." In 2000, afterreviewing the present plan, the District Court dissolved the 1975 order. Itwrote that there was "overwhelming evidence of the Board's good faithcompliance with the desegregation Decree and its underlying purposes." Itadded that the Louisville School Board had "treated the ideal of anintegrated system as much more than a legal obligation — they consider it apositive, desirable policy and an essential element of any well-rounded publicschool education."

The Court also found that the magnet programs available at the high school inquestion were "not available at other high schools" in the schooldistrict. It consequently held unconstitutional the use of race-based"targets" to govern admission to magnet schools. And itordered the board not to [*210] control access to those scarceprograms through the use of racial targets.

5. The Current Lawsuit, 2003 to the Present. Subsequent to the DistrictCourt's dissolution of the desegregation order (in 2000) the board simplycontinued to implement its 1996 plan as modified to reflect the court's magnetschool 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 theDistrict Court and the Court of Appeals for the Sixth Circuit rejectedMeredith's challenge and held the unmodified aspects of the planconstitutional.


The histories I have set forth describe the extensive and ongoing efforts oftwo school districts to bring about greater racial integration of their publicschools. In both cases the efforts were in part remedial. Louisville began itsintegration efforts in earnest when a federal court in 1975 entered a schooldesegregation order. Seattle undertook its integration efforts in response tothe filing of a federal lawsuit and as a result of its settlement of asegregation complaint filed with the federal OCR. [*211]

The plans in both Louisville and Seattle grow out of these earlier remedialefforts. Both districts faced problems that reflected initial periods of severeracial segregation, followed by such remedial efforts as busing, followed byevidence of resegregation, followed by a need to end busing and encourage thereturn of, e.g., suburban students through increased student choice.When formulating the plans under review, both districts drew upon theirconsiderable experience with earlier plans, having revised their policiesperiodically in light of that experience. Both districts rethought theirmethods over time and explored a wide range of other means, includingnon-race-conscious policies. Both districts also considered elaborate studiesand 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 whilepreserving their commitment to other educational goals, e.g.,districtwide commitment to high quality public schools, increased pupilassignment to neighborhood schools, diminished use of busing, greater studentchoice, reduced risk of [*212] 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 theirfamilies; and they use race-conscious criteria in limited and graduallydiminishing ways. In particular, they use race-conscious criteria only to markthe outer bounds of broad population-related ranges.

The histories also make clear the futility of looking simply to whether earlierschool segregation was de jure or de facto in order to draw firmlines separating the constitutionally permissible from the constitutionallyforbidden use of "race-conscious" criteria. JUSTICE THOMAS suggeststhat it will be easy to identify de jure segregation because "inmost cases, there either will or will not have been a state constitutionalamendment, state statute, local ordinance, or local administrative policyexplicitly requiring separation of the races." Ante, at 6, n. 4(concurring opinion). But our precedent has recognized that de jurediscrimination 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, 30L. Ed. 220 (1886).

No one [*213] here disputes that Louisville's segregation was dejure. 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 thematter? Does that make a difference? Is Seattle free on remand to say that itsschools were de jure segregated, just as in 1956 a memo for the SchoolBoard admitted? The plurality does not seem confident as to the answer. Compareante, at 12 (opinion of the Court) ("The Seattle public schools havenever shown that they were ever segregated by law" (emphasis added)),with ante at 29-30 (plurality opinion) (assuming "the Seattleschool district was never segregated by law," but seeming to concede thata school district with de jure segregation need not be subject to a courtorder 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 orprivate plaintiffs challenged as segregated by law voluntarilydesegregated their schools without a court order — just as Seattle did.See, e.g., Coleman, Desegregation [*214] of the PublicSchools in Kentucky — The Second Year After the Supreme Court's Decision, 25J. Negro Educ. 254, 256, 261 (1956) (40 of Kentucky's 180 school districtsbegan desegregation without court orders); Branton, Little Rock Revisited:Desegregation to Resegregation, 52 J. Negro Educ. 250, 251 (1983) (similar inArkansas); Bullock & Rodgers, Coercion to Compliance: Southern SchoolDistricts and School 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 alsoLetter from Robert F. Kennedy, Attorney General, to John F. Kennedy, President(Jan. 24, 1963) (hereinafter Kennedy Report), available at (allInternet materials as visited June 26, 2007, and available in Clerk of Court'scase file) (reporting successful efforts by the Government to induce voluntarydesegregation).

Moreover, Louisville's history makes clear that a community under a court orderto desegregate might submit a race-conscious remedial plan before thecourt dissolved the order, but with every intention offollowing [*215] that plan even after dissolution. How couldsuch a plan be lawful the day before dissolution but then become unlawful thevery next day? On what legal ground can the majority rest its contrary view?But see ante, at 12-13, 17, n. 12.

Are courts really to treat as merely de facto segregated those schooldistricts that avoided a federal order by voluntarily complying with Brown‘srequirements? See id., at 12, 29-30. This Court has previously done justthe opposite, permitting a race-conscious remedy without any kind of courtdecree. See McDaniel, supra, at 41, 91 S. Ct. 1287, 28 L. Ed. 2d582. Because the Constitution emphatically does not forbid the use ofrace-conscious measures by districts in the South that voluntarily desegregatedtheir schools, on what basis does the plurality claim that the law forbidsSeattle to do the same? But see ante, at 29.

The histories also indicate the complexity of the tasks and the practical difficultiesthat local school boards face when they seek to achieve greater racialintegration. The boards work in communities where demographic patterns change,where they must meet traditional learning goals, where they must attract andretain effective [*216] teachers, where they should (and will) takeaccount of parents’ views and maintain their commitment to public schooleducation, where they must adapt to court intervention, where they mustencourage voluntary student and parent action — where they will find thattheir own good faith, their knowledge, and their understanding of localcircumstances are always necessary but often insufficient to solve the problemsat hand.

These facts and circumstances help explain why in this context, as to means,the law often leaves legislatures, city councils, school boards, and voterswith a broad range of choice, thereby giving "different communities"the opportunity to "try different solutions to common problems andgravitate toward those that prove most successful or seem to them best to suittheir individual needs." Comfort v. Lynn School Comm., 418F.3d 1, 28 (CA1 2005) (Boudin, C. J., concurring) (citing United Statesv. 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 theUnited States Constitution prohibit these [*217] school boards fromusing race-conscious criteria in the limited ways at issue here?


The Legal Standard

A longstanding and unbroken line of legal authority tells us that the EqualProtection Clause permits local school boards to use race-conscious criteria toachieve positive race-related goals, even when the Constitution does not compelit. Because of its importance, I shall repeat what this Court said about thematter in Swann. Chief Justice Burger, on behalf of a unanimous Court ina case of exceptional importance, wrote:

"School authorities are traditionally charged with broad power toformulate and implement educational policy and might well conclude, forexample, that in order to prepare students to live in a pluralistic societyeach school should have a prescribed ratio of Negro to white studentsreflecting the proportion for the district as a whole. To do this as aneducational policy is within the broad discretionary powers of schoolauthorities." 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 forthin Swann a basic principle of constitutional law — a principle of lawthat has found "wide acceptance [*218] in the legalculture." Dickerson v. United States, 530 U.S. 428, 443, 120S. Ct. 2326, 147 L. Ed. 2d 405 (2000) (internal quotation marks omitted); Mitchellv. United States, 526 U.S. 314, 330, 119 S. Ct. 1307, 143 L. Ed. 2d 424(1999); 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, 91S. Ct. 1284, 28 L. Ed. 2d 586 (1971), this Court, citing Swann, restatedthe point. "School authorities," the Court said, "have widediscretion in formulating school policy, and . . . as a matter of educationalpolicy school authorities may well conclude that some kind of racial balance inthe schools is desirable quite apart from any constitutionalrequirements." 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‘sstatement reflected settled law: "While I have the gravest doubts that [astate supreme court] was required by the United States Constitution totake the [desegregation] action that it has taken in [*219] thiscase, I have very little doubt that it was permitted by thatConstitution to take such action." (Emphasis in original.)

These statements nowhere suggest that this freedom is limited to schooldistricts where court-ordered desegregation measures are also in effect.Indeed, in McDaniel, a case decided the same day as Swann, agroup of parents challenged a race-conscious student assignment plan that theClarke County School Board had voluntarily adopted as a remedy without acourt order (though under federal agency pressure — pressure Seattle alsoencountered). The plan required that each elementary school in the districtmaintain 20% to 40% enrollment of African-American students, corresponding tothe racial composition of the district. See Barresi v. Browne,226 Ga. 456, 456-459, 175 S. E. 2d 649, 650-651 (1970). This Court upheld theplan, 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 includedor 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 [*220] and the OCRdid in Seattle — that Clarke County schools were segregated in law, not justin fact. The plurality's claim that Seattle was "never segregated bylaw" is simply not accurate. Compare ante, at 29, with supra,at 6-9. The plurality could validly claim that no court ever found thatSeattle schools were segregated in law. But that is also true of the ClarkeCounty schools in McDaniel. Unless we believe that the Constitutionenforces one legal standard for the South and another for the North, this Courtshould 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 ("Steps will almostinvariably require that students be assigned ‘differently because of theirrace.’ . . . Any other approach would freeze the status quo that is the verytarget of all desegregation processes.").

This Court has also held that school districts may be required by federalstatute to undertake race-conscious desegregation efforts even when there is nolikelihood that de jure segregation can be shown. In Board of Ed. ofCity School Dist. of New York v. Harris, 444 U.S. 130, 148-149, 100S. Ct. 363, 62 L. Ed. 2d 275 (1979), the Court concluded [*221] thata federal statute required school districts receiving certain federal funds toremedy faculty segregation, even though in this Court's view the racialdisparities in the affected schools were purely de facto and would nothave been actionable under the Equal Protection Clause. Not even the dissentersthought the race-conscious remedial program posed a constitutionalproblem. See id., at 152, 100 S. Ct. 363, 62 L. Ed. 2d 275 (opinion ofStewart, J.). See also, e.g., Crawford v. Board of Ed. of LosAngeles, 458 U.S. 527, 535-536, 102 S. Ct. 3211, 73 L. Ed. 2d 948 (1982)("State courts of California continue to have an obligation under statelaw to order segregated school districts to use voluntary desegregationtechniques, whether or not there has been a finding of intentional segregation.. . . School districts themselves retain a state-law obligation to takereasonably feasible steps to desegregate, and they remain free to adoptreassignment and busing plans to effectuate desegregation" (emphasisadded)); 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 forwant of a federal question a challenge to a voluntary statewideintegration [*222] plan using express racial criteria).

Lower state and federal courts had considered the matter settled anduncontroversial even before this Court decided Swann. Indeed, in 1968,the Illinois Supreme Court rejected an equal protection challenge to arace-conscious state law seeking to undo de facto segregation:

"To support [their] claim, the defendants heavily rely on three Federalcases, each of which held, no State law being involved, that a local schoolboard does not have an affirmative constitutional duty to act to alleviateracial imbalance in the schools that it did not cause. However, the question asto whether the constitution requires a local school board, or a State, to actto undo de facto school segregation is simply not here concerned. Theissue here is whether the constitution permits, rather than prohibits, voluntaryState action aimed toward reducing and eventually eliminating de factoschool segregation.

"State laws or administrative policies, directed toward the reduction andeventual elimination of de facto segregation of children in the schoolsand racial imbalance, have been approved by every high State court which hasconsidered the [*223] issue. Similarly, the Federal courts whichhave considered the issue . . . have recognized that voluntary programs oflocal school authorities designed to alleviate de facto segregation andracial imbalance in the schools are not constitutionally forbidden." Tometzv. Board of Ed., Waukegan School Dist. No. 6, 39 Ill. 2d 593, 597-598,237 N.E.2d 498, 501 (1968) (citations omitted) (citing decisions from the highcourts of Pennsylvania, Massachusetts, New Jersey, California, New York, andConnecticut, and from the Courts of Appeals for the First, Second, Fourth, andSixth Circuits).

See also, e.g., Offerman v. Nitkowski, 378 F.2d 22, 24(CA2 1967); Deal v. Cincinnati Bd. of Ed., 369 F.2d 55, 61 (CA61966), cert. denied, 389 U.S. 847, 88 S. Ct. 39, 19 L. Ed. 2d 114 (1967); SpringfieldSchool Comm. v. Barksdale, 348 F.2d 261, 266 (CA1 1965); PennsylvaniaHuman Relations Comm’n v. Chester School Dist., 427 Pa. 157, 164,233 A.2d 290, 294 (1967); Booker v. Board of Ed. of Plainfield, UnionCty., 45 N. J. 161, 170, 212 A.2d 1, 5 (1965); Jackson v. PasadenaCity School Dist., 59 Cal.2d 876, 881-882, 31 Cal. Rptr. 606, 382 P.2d 878,881-882 (1963) [*224] (in bank).

I quote the Illinois Supreme Court at length to illustrate the prevailing legalassumption at the time Swann was decided. In this respect, Swann wasnot a sharp or unexpected departure from prior rulings; it reflected aconsensus that had already emerged among state and lower federal courts.

If there were doubts before Swann was decided, they did not survive thisCourt's decision. Numerous state and federal courts explicitly relied upon Swann‘sguidance for decades to follow. For instance, a Texas appeals court in 1986rejected a Fourteenth Amendment challenge to a voluntary integration plan byexplaining:

"The absence of acourt order to desegregate does not mean that a school board cannot exceedminimum requirements in order to promote school integration. School authoritiesare traditionally given broad discretionary powers to formulate and implementeducational policy and may properly decide to ensure to their students thevalue of an integrated school experience." Citizens for Better Ed.v. Goose Creek Consol. Independent School Dist., 719 S.W.2d 350, 352-353(Ct. App. Tex. 1986) (citing Swann and North Carolina Bd.[*225] of Ed.), appeal dism’d for want of a substantialfederal question, 484 U.S. 804, 108 S. Ct. 49, 98 L. Ed. 2d 14 (1987).

Similarly, in Zaslawsky v. Bd. of Ed. of Los Angeles City UnifiedSchool Dist., 610 F.2d 661, 662-664 (1979), the Ninth Circuit rejected afederal constitutional challenge to a school district's use of mandatoryfaculty transfers to ensure that each school's faculty makeup would fall within10% of the districtwide racial composition. Like the Texas court, the NinthCircuit relied upon Swann and North Carolina Bd. of Ed. to rejectthe argument that "a race-conscious plan is permissible only when therehas been a judicial finding of de jure segregation." 610 F.2d at663-664. See also, e.g., Darville v. Dade County School Bd.,497 F.2d 1002, 1004-1006 (CA5 1974); State ex rel. Citizens AgainstMandatory Bussing v. Brooks, 80 Wn. 2d 121, 128-129, 492 P.2d 536,541-542 (1972) (en banc), overruled on other grounds, Cole v. Webster,103 Wn. 2d 280, 692 P.2d 799 (1984) (en banc); School Comm. of Springfieldv. Board of Ed., 362 Mass. 417, 428-429 287 N.E.2d 438, 447-448(1972). [*226] These decisions illustrate well how lower courts understoodand followed Swann‘s enunciation of the relevant legal principle.

Courts are not alone in accepting as constitutionally valid the legal principlethat Swann enunciated — i.e., that the government mayvoluntarily adopt race-conscious measures to improve conditions of race evenwhen it is not under a constitutional obligation to do so. That principle hasbeen accepted by every branch of government and is rooted in the history of theEqual Protection Clause itself. Thus, Congress has enacted numerousrace-conscious statutes that illustrate that principle or rely upon itsvalidity. See, e.g., 20 U.S.C. § 6311(b)(2)(C)(v) (No Child Left BehindAct); § 1067 et seq. (authorizing aid to minority institutions). Infact, without being exhaustive, I have counted 51 federal statutes that useracial classifications. I have counted well over 100 state statutes thatsimilarly employ racial classifications. Presidential administrations for thepast half-century have used and supported various race-conscious measures. See,e.g., Exec. Order No. 10925, 26 Fed. Reg. 1977 (1961) [*227](President Kennedy); Exec. Order No. 11246, 30 Fed. Reg. 12319 (1965)(President Johnson); Sugrue, Breaking Through: The Troubled Origins ofAffirmative Action in the Workplace, in Colorlines: Affirmative Action,Immigration, and Civil Rights Options for America 31 (Skretny ed. 2001)(describing President Nixon's lobbying for affirmative action plans, e.g.,the Philadelphia Plan); White, Affirmative Action's Alamo: Gerald Ford Returnsto Fight Once More for Michigan, Time, Aug. 23, 1999, p. 48 (reporting onPresident Ford's support for affirmative action); Schuck, Affirmative Action:Past, Present, and Future, 20 Yale L. & Pol’y Rev. 1, 50 (2002) (describingPresident Carter's support for affirmation action). And during the same time,hundreds of local school districts have adopted student assignment plans thatuse race-conscious criteria. See Welch 83-91.

That Swann‘s legal statement should find such broad acceptance is notsurprising. For Swann is predicated upon a well-established legal viewof the Fourteenth Amendment. That view understands the basic objective of thosewho wrote the Equal Protection Clause as forbidding practices thatlead [*228] to racial exclusion. The Amendment sought to bring intoAmerican society as full members those whom the Nation had previously held inslavery. See Slaughter-House Cases, 83 U.S. 36, 16 Wall. 36, 71, 21 L.Ed. 394 (1872) ("No one can fail to be impressed with the one pervadingpurpose found in [all the Reconstruction amendments] . . . we mean the freedomof the slave race"); Strauder v. West Virginia, 100 U.S.303, 306, 25 L. Ed. 664 (1879) ("[The Fourteenth Amendment] is one of aseries of constitutional provisions having a common purpose; namely, securingto a race recently emancipated . . . all the civil rights that the superiorrace enjoy").

There is reason to believe that those who drafted an Amendment with this basicpurpose in mind would have understood the legal and practical difference betweenthe use of race-conscious criteria in defiance of that purpose, namely to keepthe races apart, and the use of race-conscious criteria to further thatpurpose, namely to bring the races together. See generally R. Sears, A UtopianExperiment in Kentucky: Integration and Social Equality at Berea, 1866-1904(1996) (describing federal funding, through the Freedman's Bureau, ofrace-conscious [*229] school integration programs). See also R.Fischer, The Segregation Struggle in Louisiana 1862-77, p. 51 (1974)(describing the use of race-conscious remedies); Harlan, Desegregation in NewOrleans Public Schools During Reconstruction, 67 Am. Hist. Rev. 663, 664 (1962)(same); W. Vaughn, Schools for All: The Blacks and Public Education in theSouth, 1865-1877, pp. 111-116 (1974) (same). Although the Constitution almostalways forbids the former, it is significantly more lenient in respect to thelatter. See Gratz v. Bollinger, 539 U.S. 244, 301, 123 S. Ct.2411, 156 L. Ed. 2d 257 (2003) (GINSBURG, J., dissenting); AdarandConstructors, Inc. v. PeNa, 515 U.S. 200, 243, 115 S. Ct. 2097, 132L. Ed. 2d 158 (1995) (STEVENS, J., dissenting).

Sometimes Members of this Court have disagreed about the degree of leniencythat the Clause affords to programs designed to include. See Wygant v. JacksonBoard of Education, 476 U.S. 267, 274, 106 S. Ct. 1842, 90 L. Ed. 2d 260(1986); Fullilove v. Klutznick, 448 U.S. 448, 507, 100 S. Ct.2758, 65 L. Ed. 2d 902 (1980). But I can find no case in which this Court hasfollowed JUSTICE THOMAS'"colorblind" approach. And I have found nocase that otherwise repudiated this constitutional asymmetry between thatwhich [*230] seeks to exclude and that which seeks to includemembers of minority races.

What does the plurality say in response? First, it seeks to distinguish Swannand other similar cases on the ground that those cases involved remedialplans in response to judicial findings of de jure segregation. AsMcDaniel and Harris show, that is historically untrue. See supra,at 22-24. Many school districts in the South adopted segregation remedies (towhich Swann clearly applies) without any such federal order, see supra,at 19-20. See also Kennedy Report. Seattle's circumstances are not meaningfullydifferent from those in, say, McDaniel, where this Court approvedrace-conscious remedies. Louisville's plan was created and initially adoptedwhen a compulsory district court order was in place. And, in any event, thehistories of Seattle and Louisville make clear that this distinction — betweencourt-ordered and voluntary desegregation — seeks a line that sensibly cannotbe drawn.

Second, the plurality downplays the importance of Swann and relatedcases by frequently describing their relevant statements as "dicta."These criticisms, however, miss [*231] the main point. Swann didnot hide its understanding of the law in a corner of an obscure opinion or in afootnote, unread but by experts. It set forth its view prominently in animportant opinion joined by all nine Justices, knowing that it would be readand followed throughout the Nation. The basic problem with the plurality'stechnical "dicta"-based response lies in its overly theoreticalapproach to case law, an approach that emphasizes rigid distinctions betweenholdings and dicta in a way that serves to mask the radical nature of today'sdecision. Law is not an exercise in mathematical logic. And statements of alegal rule set forth in a judicial opinion do not always divide neatly into"holdings" and "dicta." (Consider the legal "status"of Justice Powell's separate opinion in Regents of Univ. of Cal. v. Bakke,438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978).) The constitutionalprinciple enunciated in Swann, reiterated in subsequent cases, andrelied upon over many years, provides, and has widely been thought to provide,authoritative legal guidance. And if the plurality now chooses to reject thatprinciple, it cannot adequately justify its retreat simply by affixing thelabel [*232] "dicta" to reasoning with which it disagrees.Rather, it must explain to the courts and to the Nation why it wouldabandon guidance set forth many years before, guidance that countless othershave built upon over time, and which the law has continuously embodied.

Third, a more important response is the plurality's claim that later cases —in particular Johnson, Adarand, and Grutter — supplanted Swann.See ante, at 11-12, 31-32, n. 16, 34-35 (citing Adarand,supra, at 227, 115 S. Ct. 2097, 132 L. Ed. 2d 158; Johnson v. California,543 U.S. 499, 505, 125 S. Ct. 1141, 160 L. Ed. 2d 949 (2005); Grutter v.Bollinger, 539 U.S. 306, 326, 123 S. Ct. 2325, 156 L. Ed. 2d 304(2003)). The plurality says that cases such as Swann and the others Ihave described all "were decided before this Court definitively determinedthat ‘all racial classifications . . . must be analyzed by a reviewing courtunder strict scrutiny.'" Ante, at 31, n. 16 (quoting Adarand,515 U.S., at 227, 115 S. Ct. 2097, 132 L. Ed. 2d 158). This Court in Adarandadded that "such classifications are constitutional only if they arenarrowly tailored measures that further compelling governmentalinterests." Ibid. And the Court repeated this samestatement [*233] in Grutter. See 539 U.S., at 326, 123 S. Ct.2325, 156 L. Ed. 2d 304.

Several of these cases were significantly more restrictive than Swann inrespect to the degree of leniency the Fourteenth Amendment grants to programsdesigned to include people of all races. See, e.g., Adarand,supra; Gratz, supra; Grutter, supra. But that legalcircumstance cannot make a critical difference here for two separate reasons.

First, no case — not Adarand, Gratz, Grutter, or anyother — has ever held that the test of "strict scrutiny" means thatall racial classifications — no matter whether they seek to include or exclude— must in practice be treated the same. The Court did not say in Adarandor in Johnson or in Grutter that it was overturning Swann orits central constitutional principle.

Indeed, in its more recent opinions, the Court recognized that the"fundamental purpose" of strict scrutiny review is to "takerelevant differences" between "fundamentally different situations . .. into account." Adarand, supra, at 228, 115 S. Ct. 2097,132 L. Ed. 2d 158 (internal quotation marks omitted). The Court made clear that"strict scrutiny [*234] does not treat dissimilar race-baseddecisions as though they were equally objectionable." Ibid. Itadded that the fact that a law "treats [a person] unequally because of hisor her race . . . says nothing about the ultimate validity of any particularlaw." Id., at 229-230, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (internalquotation marks omitted). And the Court, using the very phrase that JusticeMarshall had used to describe strict scrutiny's application to any exclusionaryuse of racial criteria, sought to "dispel the notion that strictscrutiny" is as likely to condemn inclusive uses of"race-conscious" criteria as it is to invalidate exclusionaryuses. That is, it is not in all circumstances "‘strict in theory,but fatal in fact.'" Id., at 237, 115 S. Ct. 2097, 132 L. Ed. 2d158 (quoting Fullilove v. Klutznick, 448 U.S., at 519, 100 S. Ct.2758, 65 L. Ed. 2d 902 (Marshall, J., concurring in judgment)).

The Court in Grutter elaborated:

"Strict scrutiny is not ‘strict in theory, but fatal in fact.’ . . .Although all governmental uses of race are subject to strict scrutiny, not allare invalidated by it. . . .

"Context matters when reviewing race-based governmental action under theEqual Protection [*235] Clause. See Gomillion v. Lightfoot,364 U.S. 339, 343-344, 81 S. Ct. 125, 5 L. Ed. 2d 110 (1960) (admonishing that,‘in dealing with claims under broad provisions of the Constitution, whichderive content by an interpretive process of inclusion and exclusion, it is imperativethat generalizations, based on and qualified by the concrete situations thatgave rise to them, must not be applied out of context in disregard of variantcontrolling facts’). . . . Not every decision influenced by race is equallyobjectionable, and strict scrutiny is designed to provide a framework forcarefully examining the importance and the sincerity of the reasons advanced bythe governmental decisionmaker for the use of race in that particularcontext." 539 U.S., at 326-327, 123 S. Ct. 2325, 156 L. Ed. 2d 304.

The Court's holding in Grutter demonstrates that the Court meant what itsaid, for the Court upheld an elite law school's race-conscious admissionsprogram.

The upshot is that the cases to which the plurality refers, though all applyingstrict scrutiny, do not treat exclusive and inclusive uses the same. Rather,they apply the strict scrutiny test in a manner that is "fatal infact" only to racial classifications that [*236] harmfully exclude;they apply the test in a manner that is not fatal in fact to racialclassifications that seek to include.

The plurality cannot avoid this simple fact. See ante, at 34-36. Today'sopinion reveals that the plurality would rewrite this Court's priorjurisprudence, at least in practical application, transforming the "strictscrutiny" test into a rule that is fatal in fact across the board. Indoing so, the plurality parts company from this Court's prior cases, and ittakes from local government the longstanding legal right to use race-consciouscriteria for inclusive purposes in limited ways.

Second, as Grutter specified, "context matters when reviewingrace-based governmental action under the Equal Protection Clause." 539U.S., at 327, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (citing Gomillion v. Lightfoot,364 U.S. 339, 343-344, 81 S. Ct. 125, 5 L. Ed. 2d 110 (1960)). And contextsdiffer dramatically one from the other. Governmental use of race-based criteriacan arise in the context of, for example, census forms, research expendituresfor diseases, assignments of police officers patrolling predominantlyminority-race neighborhoods, efforts to desegregate racially segregatedschools, [*237] policies that favor minorities when distributinggoods or services in short supply, actions that create majority-minorityelectoral districts, peremptory strikes that remove potential jurors on thebasis of race, and others. Given the significant differences among thesecontexts, it would be surprising if the law required an identically strictlegal test for evaluating the constitutionality of race-based criteria as toeach of them.

Here, the context is one in which school districts seek to advance or tomaintain racial integration in primary and secondary schools. It is a context,as Swann makes clear, where history has required special administrativeremedies. And it is a context in which the school boards’ plans simply setrace-conscious limits at the outer boundaries of a broad range.

This context is not a context that involves the use of race to decidewho will receive goods or services that are normally distributed on the basisof merit and which are in short supply. It is not one in which race-consciouslimits stigmatize or exclude; the limits at issue do not pit the races againsteach other or otherwise significantly exacerbate racial tensions. They do notimpose [*238] burdens unfairly upon members of one race alone butinstead seek benefits for members of all races alike. The context here is oneof racial limits that seek, not to keep the races apart, but to bring themtogether.

The importance of these differences is clear once one compares the presentcircumstances with other cases where one or more of these negative features arepresent. See, e.g., Strauder v. West Virginia, 100 U.S.303, 25 L. Ed. 664 (1880); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L. Ed. 220 (1886); Brown, 347 U.S. 483, 74 S. Ct. 686, 98L. Ed. 873; Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L.Ed. 2d 1010 (1967); Regents of Univ. of Cal. v. Bakke, 438 U.S.265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978); Batson v. Kentucky,476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986); Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S. Ct. 706, 102 L. Ed. 2d 854 (1989); Shawv. Reno, 509 U.S. 630, 113 S. Ct. 2816, 125 L. Ed. 2d 511 (1993); AdarandConstructors, Inc. v. PeNa, 515 U.S. 200, 115 S. Ct. 2097, 132 L.Ed. 2d 158 (1995); Grutter, supra; Gratz v. Bollinger, 539U.S. 244, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (2003); Johnson v. California,543 U.S. 499, 125 S. Ct. 1141, 160 L. Ed. 2d 949 (2005).

If one examines the context more specifically, one finds that the districts’[*239] plans reflect efforts to overcome a history of segregation,embody the results of broad experience and community consultation, seek toexpand student choice while reducing the need for mandatory busing, and userace-conscious criteria in highly limited ways that diminish the use of racecompared to preceding integration efforts. Compare Wessmann v. Gittens,160 F.3d 790, 809-810 (CA1 1998) (Boudin, J., concurring), with Comfort,418 F.3d at 28-29 (Boudin, C. J., concurring). They do not seek to award ascarce commodity on the basis of merit, for they are not magnet schools;rather, by design and in practice, they offer substantially equivalent academicprograms and electives. Although some parents or children prefer some schoolsover others, school popularity has varied significantly over the years. In2000, for example, Roosevelt was the most popular first choice high school inSeattle; in 2001, Ballard was the most popular; in 2000, West Seattle was oneof the least popular; by 2003, it was one of the more popular. See Research,Evaluation and Assessment, Student Information Services Office, DistrictSummaries 1999-2005, available at http: //www. [*240] /area /siso /disprof /2005 /DP05 all.pdf. In a word, theschool plans under review do not involve the kind of race-based harm that hasled this Court, in other contexts, to find the use of race-conscious criteriaunconstitutional.

These and related considerations convinced one Ninth Circuit judge in theSeattle case to apply a standard of constitutionality review that is less than"strict," and to conclude that this Court's precedents do not requirethe contrary. See 426 F.3d 1162, 1193-1194 (2005) (Kozinski, J., concurring)("That a student is denied the school of his choice may be disappointing,but it carries no racial stigma and says nothing at all about that individual'saptitude or ability"). That judge is not alone. Cf. Gratz, supra,at 301, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (GINSBURG, J., dissenting); Adarand,supra, at 243, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (STEVENS, J.,dissenting); Carter, When Victims Happen To Be Black, 97 Yale L. J. 420,433-434 (1988).

The view that a more lenient standard than "strict scrutiny" shouldapply in the present context would not imply abandonment of judicial effortscarefully to determine the need for race-conscious criteria [*241]and the criteria's tailoring in light of the need. And the present contextrequires a court to examine carefully the race-conscious program at issue. Indoing so, a reviewing judge must be fully aware of the potential dangers andpitfalls that JUSTICE THOMAS and JUSTICE KENNEDY mention. See ante, at11-12 (THOMAS, J., concurring); ante, at 3, 17 (opinion of KENNEDY, J.).

But unlike the plurality, such a judge would also be aware that a legislatureor school administrators, ultimately accountable to the electorate, could nonethelessproperly conclude that a racial classification sometimes serves a purposeimportant enough to overcome the risks they mention, for example, helping toend racial isolation or to achieve a diverse student body in public schools.Cf. ante, at 17-18 (opinion of KENNEDY, J.). Where that is so, the judgewould carefully examine the program's details to determine whether the use ofrace-conscious criteria is proportionate to the important ends it serves.

In my view, this contextual approach to scrutiny is altogether fitting. Ibelieve that the law requires application here of a standard of review that isnot "strict" in the traditional sense [*242] of that word,although it does require the careful review I have just described. See Gratz,supra, at 301, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (GINSBURG, J., joinedby SOUTER, J., dissenting); Adarand, supra, at 242-249, 115 S.Ct. 2097, 132 L. Ed. 2d 158 (STEVENS, J., joined by GINSBURG, J., dissenting);426 F.3d at 1193-1194 (Kozinski, J., concurring). Apparently JUSTICE KENNEDYalso agrees that strict scrutiny would not apply in respect to certain"race-conscious" school board policies. See ante, at 9("Executive and legislative branches, which for generations now haveconsidered these types of policies and procedures, should be permitted toemploy them with candor and with confidence that a constitutional violationdoes not occur whenever a decisionmaker considers the impact a given approachmight have on students of different races").

Nonetheless, in light of Grutter and other precedents, see, e.g.,Bakke, 438 U.S., at 290, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (opinion ofPowell, J.), I shall adopt the first alternative. I shall apply the version ofstrict scrutiny that those cases embody. I shall consequently ask whether theschool boards in Seattle and Louisville adopted these plans to serve a"compelling [*243] governmental interest" and, if so,whether the plans are "narrowly tailored" to achieve that interest.If the plans survive this strict review, they would survive less exactingreview a fortiori. Hence, I conclude that the plans before us pass bothparts of the strict scrutiny test. Consequently I must conclude that the planshere are permitted under the Constitution.


Applying the Legal Standard


Compelling Interest

The principal interest advanced in these cases to justify the use of race-basedcriteria goes by various names. Sometimes a court refers to it as an interestin achieving racial "diversity." Other times a court, like theplurality here, refers to it as an interest in racial "balancing." Ihave used more general terms to signify that interest, describing it, forexample, as an interest in promoting or preserving greater racial"integration" of public schools. By this term, I mean the schooldistricts’ interest in eliminating school-by-school racial isolation andincreasing the degree to which racial mixture characterizes each of thedistrict's schools and each individual student's public school experience.

Regardless of its name, however, the interest [*244] at stake possessesthree essential elements. First, there is a historical and remedial element: aninterest in setting right the consequences of prior conditions of segregation.This refers back to a time when public schools were highly segregated, often asa result of legal or administrative policies that facilitated racialsegregation in public schools. It is an interest in continuing to combat theremnants of segregation caused in whole or in part by these school-relatedpolicies, which have often affected not only schools, but also housingpatterns, employment practices, economic conditions, and social attitudes. Itis an interest in maintaining hard-won gains. And it has its roots inpreventing what gradually may become the de facto resegregation ofAmerica's public schools. See Part I, supra, at 4; Appendix A, infra.See also ante, at 17 (opinion of KENNEDY, J.) ("This Nation has amoral and ethical obligation to fulfill its historic commitment to creating anintegrated society that ensures equal opportunity for all of itschildren").

Second, there is an educational element: an interest in overcoming the adverseeducational effects produced by and associated [*245] with highlysegregated schools. Cf. Grutter, 539 U.S., at 345, 123 S. Ct.2325, 156 L. Ed. 2d 304 (GINSBURG, J., concurring). Studies suggest thatchildren taken from those schools and placed in integrated settings often showpositive academic gains. See, e.g., Powell, Living and Learning: LinkingHousing and Education, in Pursuit of a Dream Deferred: Linking Housing andEducation Policy 15, 35 (J. Powell, G. Kearney, & V. Kay eds. 2001)(hereinafter Powell); Hallinan, Diversity Effects on Student Outcomes: SocialScience Evidence, 59 Ohio St. L. J. 733, 741-742 (1998) (hereinafter Hallinan).

Other studies reach different conclusions. See, e.g., D. Armor, ForcedJustice (1995). See also ante, at 15-17 (THOMAS, J., concurring). Butthe evidence supporting an educational interest in racially integrated schoolsis well established and strong enough to permit a democratically elected schoolboard reasonably to determine that this interest is a compelling one.

Research suggests, for example, that black children from segregated educationalenvironments significantly increase their achievement levels once they are placedin a more integrated setting. Indeed in Louisville itself [*246] theachievement gap between black and white elementary school students grewsubstantially smaller (by seven percentage points) after the integration planwas implemented in 1975. See Powell 35. Conversely, to take another example,evidence from a district in Norfolk, Virginia, shows that resegregated schoolsled to a decline in the achievement test scores of children of all races. Ibid.

One commentator, reviewing dozens of studies of the educational benefits ofdesegregated schooling, found that the studies have provided "remarkablyconsistent" results, showing that: (1) black students’ educationalachievement is improved in integrated schools as compared to racially isolatedschools, (2) black students’ educational achievement is improved in integratedclasses, and (3) the earlier that black students are removed from racialisolation, the better their educational outcomes. See Hallinan 741-742.Multiple studies also indicate that black alumni of integrated schools are morelikely to move into occupations traditionally closed to African-Americans, andto earn more money in those fields. See, e.g., Schofield, Review ofResearch on School Desegregation's Impact on Elementary [*247] andSecondary School Students, in Handbook of Research on Multicultural Education597, 606-607 (J. Banks & C. Banks eds. 1995). Cf. W. Bowen & D. Bok,The Shape of the River 118 (1998) (hereinafter Bowen & Bok).

Third, there is a democratic element: an interest in producing an educationalenvironment that reflects the "pluralistic society" in which ourchildren will live. Swann, 402 U.S., at 16, 91 S. Ct. 1267, 28 L. Ed. 2d554. It is an interest in helping our children learn to work and play togetherwith children of different racial backgrounds. It is an interest in teachingchildren to engage in the kind of cooperation among Americans of all races thatis necessary to make a land of three hundred million people one Nation.

Again, data support this insight. See, e.g., Hallinan 745; Quillian& Campbell, Beyond Black and White: The Present and Future of MultiracialFriendship Segregation, 68 Am. Sociological Rev. 540, 541 (2003) (hereinafterQuillian & Campbell); Dawkins & Braddock, The Continuing Significanceof Desegregation: School Racial Composition and African American Inclusion inAmerican Society, 63 J. Negro Ed. 394, 401-403 (1994) (hereinafter Dawkins& Braddock); Wells & Crain, Perpetuation [*248] Theory andthe Long-Term Effects of School Desegregation, 64 Rev. Educational Research531, 550 (1994) (hereinafter Wells & Crain).

There are again studies that offer contrary conclusions. See, e.g.,Schofield, School Desegregation and Intergroup Relations, in 17 Review ofResearch in Education 356 (G. Grant ed. 1991). See also ante, at 22-23(THOMAS, J., concurring). Again, however, the evidence supporting a democraticinterest in racially integrated schools is firmly established and sufficientlystrong to permit a school board to determine, as this Court has itself oftenfound, that this interest is compelling.

For example, one study documented that "black and white students indesegregated schools are less racially prejudiced than those in segregatedschools," and that "interracial contact in desegregated schools leadsto an increase in interracial sociability and friendship." Hallinan 745.See also Quillian & Campbell 541. Cf. Bowen & Bok 155. Other studieshave found that both black and white students who attend integrated schools aremore likely to work in desegregated companies after graduation than studentswho attended racially isolated schools. Dawkins &Braddock [*249] 401-403; Wells & Crain 550. Further research hasshown that the desegregation of schools can help bring adult communitiestogether by reducing segregated housing. Cities that have implementedsuccessful school desegregation plans have witnessed increased interracialcontact and neighborhoods that tend to become less racially segregated. Dawkins& Braddock 403. These effects not only reinforce the prior gains ofintegrated primary and secondary education; they also foresee a time when thereis less need to use race-conscious criteria.

Moreover, this Court from Swann to Grutter has treated thesecivic effects as an important virtue of racially diverse education. See, e.g.,Swann, supra, at 16, 91 S. Ct. 1267, 28 L. Ed. 2d 554; SeattleSchool Dist. No. 1, 458 U.S., at 472-473, 102 S. Ct. 3187, 73 L. Ed. 2d896. In Grutter, in the context of law school admissions, we found thatthese types of interests were, constitutionally speaking,"compelling." See 539 U.S., at 330, 123 S. Ct. 2325, 156 L. Ed. 2d304 (recognizing that Michigan Law School's race-conscious admissions policy"promotes cross-racial understanding, helps to break down racial stereotypes,and enables [students] to better understand persons of different races,[*250] " and pointing out that "the skills needed intoday's increasingly global marketplace can only be developed through exposureto widely diverse people, cultures, ideas, and viewpoints" (internalquotation marks omitted; alteration in original)).

In light of this Court's conclusions in Grutter, the"compelling" nature of these interests in the context of primary andsecondary public education follows here a fortiori. Primary andsecondary schools are where the education of this Nation's children begins,where each of us begins to absorb those values we carry with us to the end ofour days. As Justice Marshall said, "unless our children begin to learntogether, there is little hope that our people will ever learn to livetogether." Milliken v. Bradley, 418 U.S. 717, 783, 94 S. Ct.3112, 41 L. Ed. 2d 1069 (1974) (dissenting opinion).

And it was Brown, after all, focusing upon primary and secondaryschools, not Sweatt v. Painter, 339 U.S. 629, 70 S. Ct. 848, 94L. Ed. 1114 (1950), focusing on law schools, or McLaurin v. OklahomaState Regents for Higher Ed., 339 U.S. 637, 70 S. Ct. 851, 94 L. Ed. 1149(1950), focusing on graduate schools, that affected so deeply not only Americansbut the world. R. Kluger, [*251] Simple Justice: The History of Brownv. Board of Education and Black America's Struggle for Equality, p. x(1975) (arguing that perhaps no other Supreme Court case has "affectedmore directly the minds, hearts, and daily lives of so many Americans");Patterson, Brown v. Board of Education xxvii (2001) (identifying Brownas "the most eagerly awaited and dramatic judicial decision of moderntimes"). See also Parents Involved VII, 426 F.3d at 1194 (Kozinski,J., concurring); Strauss, Discriminatory Intent and the Taming of Brown,56 U. Chi. L. Rev. 935, 937 (1989) (calling Brown "the SupremeCourt's greatest anti-discrimination decision"); Brief for United Statesas Amicus Curiae in Brown, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed.873; Dudziak, Brown as a Cold War Case, 91 J. Am. Hist. 32 (2004); AGreat Decision, Hindustan Times (New Dehli, May 20, 1954), p. 5; USA TakesPositive Step, West African Pilot (Lagos, May 22, 1954), p. 2 (stating that Brownis an acknowledgment that the "United States should set an example for allother nations by taking the lead in removing from its national life all signsand traces of racial intolerance, [*252] arrogance ordiscrimination"). Hence, I am not surprised that JUSTICE KENNEDY findsthat, "a district may consider it a compelling interest to achieve adiverse student population," including a racially diversepopulation. Ante, at 17-18.

The compelling interest at issue here, then, includes an effort to eradicatethe remnants, not of general "societal discrimination," ante,at 23 (plurality opinion), but of primary and secondary school segregation, seesupra, at 7, 14; it includes an effort to create school environmentsthat provide better educational opportunities for all children; it includes aneffort to help create citizens better prepared to know, to understand, and towork with people of all races and backgrounds, thereby furthering the kind ofdemocratic government our Constitution foresees. If an educational interestthat combines these three elements is not "compelling," what is?

The majority acknowledges that in prior cases this Court has recognized atleast two interests as compelling: an interest in "remedying the effectsof past intentional discrimination," and an interest in "diversity inhigher education." Ante, at 12, 13. But the pluralitydoes [*253] not convincingly explain why those interests do notconstitute a "compelling interest" here. How do the remedialinterests here differ in kind from those at issue in the voluntarydesegregation efforts that Attorney General Kennedy many years ago described inhis letter to the President? Supra, at 19-20. How do the educational andcivic interests differ in kind from those that underlie and justify the racial"diversity" that the law school sought in Grutter, where thisCourt found a compelling interest?

The plurality tries to draw a distinction by reference to the well-establishedconceptual difference between de jure segregation ("segregation bystate action") and de facto segregation ("racial imbalancecaused by other factors"). Ante, at 28. But that distinctionconcerns what the Constitution requires school boards to do, not what itpermits them to do. Compare, e.g., Green, 391 U.S., at437-438, 88 S. Ct. 1689, 20 L. Ed. 2d 716 ("School boards . . . operatingstate-compelled dual systems" have an "affirmative duty to takewhatever steps might be necessary to convert to a unitary system in whichracial discrimination would be eliminated root and branch"), with,[*254] e.g., Milliken, 418 U.S., at 745, 94 S. Ct.3112, 41 L. Ed. 2d 1069 (the Constitution does not impose a duty to desegregateupon districts that have not been "shown to have committed anyconstitutional violation").

The opinions cited by the plurality to justify its reliance upon the dejure/de facto distinction only address what remedial measures a schooldistrict may be constitutionally required to undertake. See, e.g.,Freeman v. Pitts, 503 U.S. 467, 495, 112 S. Ct. 1430, 118 L. Ed.2d 108 (1992). As to what is permitted, nothing in our equal protectionlaw suggests that a State may right only those wrongs that it committed. Nocase of this Court has ever relied upon the de jure/de facto distinctionin order to limit what a school district is voluntarily allowed to do. That iswhat is at issue here. And Swann, McDaniel, Crawford, NorthCarolina Bd. of Ed., Harris, and Bustop made one thing clear:significant as the difference between de jure and de factosegregation may be to the question of what a school district must do,that distinction is not germane to the question of what a school district maydo.

Nor does any precedent indicate, as the plurality [*255] suggestswith respect to Louisville, ante, at 29, that remedial interests vanishthe day after a federal court declares that a district is "unitary."Of course, Louisville adopted those portions of the plan at issue here beforea court declared Louisville "unitary." Moreover, in Freeman,this Court pointed out that in "one sense of the term, vestiges of pastsegregation by state decree do remain in our society and in our schools. Pastwrongs to the black race, wrongs committed by the State and in its name, are astubborn fact of history. And stubborn facts of history linger andpersist." 503 U.S., at 495, 112 S. Ct. 1430, 118 L. Ed. 2d 108. See also ante,at 15 (opinion of KENNEDY, J.). I do not understand why this Court's cases,which rest the significance of a "unitary" finding in part upon thewisdom and desirability of returning schools to local control, should deprivethose local officials of legal permission to use means they once foundnecessary to combat persisting injustices.

For his part, JUSTICE THOMAS faults my citation of various studies supportingthe view that school districts can find compelling educational and civicinterests in integrating their public schools. See [*256] ante,at 15-17, 23 (concurring opinion). He is entitled of course to his own opinionas to which studies he finds convincing — although it bears mention that eventhe author of some of JUSTICE THOMAS’ preferred studies has found someevidence linking integrated learning environments to increased academicachievement. Cf. ante, at 15-17 (opinion of THOMAS, J.) (citing Armor& Rossell, Desegregation and Resegregation in the Public Schools, in Beyondthe Color Line 239 (A. Thernstrom & S. Thernstrom eds. 2002); Brief forArmor et al. as Amici Curiae, with Rosen, Perhaps Not AllAffirmative Action is Created Equal, N. Y. Times, June 11, 2006 (quoting DavidArmor as commenting "‘we did find the [racial] achievement gap changing significantly‘"and acknowledging that he "‘did find a modest association for math but notreading in terms of racial composition and achievement, but there's a big statevariation'" (emphasis added)). If we are to insist upon unanimity in thesocial science literature before finding a compelling interest, we might neverfind one. I believe only that the Constitution allows democratically electedschool boards to make up their own minds [*257] as to how best toinclude people of all races in one America.


Narrow Tailoring

I next ask whether the plans before us are "narrowly tailored" toachieve these "compelling" objectives. I shall not accept the schoolboard's assurances on faith, cf. Miller v. Johnson, 515 U.S. 900,920, 115 S. Ct. 2475, 132 L. Ed. 2d 762 (1995), and I shall subject the"tailoring" of their plans to "rigorous judicial review." Grutter,539 U.S., at 388, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (KENNEDY, J., dissenting).Several factors, taken together, nonetheless lead me to conclude that theboards’ use of race-conscious criteria in these plans passes even the strictest"tailoring" test.

First, the race-conscious criteria at issue only help set the outer bounds of broadranges. Cf. id., at 390, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (KENNEDY,J., dissenting) (expressing concern about "narrow fluctuationbands"). They constitute but one part of plans that depend primarily uponother, nonracial elements. To use race in this way is not to set a forbidden"quota." See id., at 335, 123 S. Ct. 2325, 156 L. Ed. 2d 304("Properly understood, a ‘quota’ is a program in which a certain fixednumber or proportion of opportunities are ‘reserved exclusively for certainminority groups'" [*258] (quoting Croson, 488 U.S., at496, 109 S. Ct. 706, 102 L. Ed. 2d 854)).

In fact, the defining feature of both plans is greater emphasis upon studentchoice. In Seattle, for example, in more than 80% of all cases, that choicealone determines which high schools Seattle's ninth graders will attend. Afterninth grade, students can decide voluntarily to transfer to a preferreddistrict high school (without any consideration of race-conscious criteria). Choice,therefore, is the "predominant factor" in these plans. Race isnot. See Grutter, supra, at 393, 123 S. Ct. 2325, 156 L. Ed. 2d304 (KENNEDY, J., dissenting) (allowing consideration of race only if it does"not become a predominant factor").

Indeed, the race-conscious ranges at issue in these cases often have no effect,either because the particular school is not oversubscribed in the year inquestion, or because the racial makeup of the school falls within the broadrange, or because the student is a transfer applicant or has a sibling at theschool. In these respects, the broad ranges are less like a quota and more likethe kinds of "useful starting points" that this Court hasconsistently found permissible, even when they set boundaries uponvoluntary [*259] transfers, and even when they are based upon acommunity's general population. See, e.g., North Carolina Bd. of Ed.v. Swann, 402 U.S. 43, 46, 91 S. Ct. 1284, 28 L. Ed. 2d 586 (1971) (no"absolute prohibition against [the] use" of mathematical ratios as a"starting point"); Swann, 402 U.S., at 24-25, 91 S. Ct. 1267,28 L. Ed. 2d 554 (approving the use of a ratio reflecting "the racialcomposition of the whole school system" as a "useful startingpoint," but not as an "inflexible requirement"). Cf. UnitedStates v. Montgomery County Bd. of Ed., 395 U.S. 225, 232, 89 S. Ct.1670, 23 L. Ed. 2d 263 (1969) (approving a lower court desegregation order that"provided that the [school] board must move toward a goal under which ‘ineach school the ratio of white to Negro faculty members is substantially thesame as it is throughout the system,'" and "immediately"requiring "the ratio of Negro to white teachers" in each school to beequal to "the ratio of Negro to white teachers in . . . the system as awhole").

Second, broad-range limits on voluntary school choice plans are lessburdensome, and hence more narrowly tailored, see Grutter, supra, at341, 123 S. Ct. 2325, 156 L. Ed. 2d 304, than other race-conscious restrictionsthis Court has previously [*260] approved. See, e.g., Swann,supra, at 26-27, 91 S. Ct. 1267, 28 L. Ed. 2d 554; Montgomery Co. Bd.of Ed., supra, at 232, 89 S. Ct. 1670, 23 L. Ed. 2d 263. Indeed, theplans before us are more narrowly tailored than the race-consciousadmission plans that this Court approved in Grutter. Here, race becomesa factor only in a fraction of students’ non-merit-based assignments — not inlarge numbers of students’ merit-based applications. Moreover, the effect ofapplying race-conscious criteria here affects potentially disadvantagedstudents less severely, not more severely, than the criteria at issue inGrutter. Disappointed students are not rejected from a State's flagshipgraduate program; they simply attend a different one of the district's manypublic schools, which in aspiration and in fact are substantially equal. Cf. Wygant,476 U.S., at 283, 106 S. Ct. 1842, 90 L. Ed. 2d 260. And, in Seattle, thedisadvantaged student loses at most one year at the high school of his choice.One will search Grutter in vain for similarly persuasive evidence ofnarrow tailoring as the school districts have presented here.

Third, the manner in which the school boards developed these plans itselfreflects "narrow tailoring. [*261] " Each plan wasdevised to overcome a history of segregated public schools. Each plan embodiesthe results of local experience and community consultation. Each plan is theproduct of a process that has sought to enhance student choice, whilediminishing the need for mandatory busing. And each plan's use ofrace-conscious elements is diminished compared to the use of race inpreceding integration plans.

The school boards’ widespread consultation, their experimentation with numerousother plans, indeed, the 40-year history that Part I sets forth, make clearthat plans that are less explicitly race-based are unlikely to achieve theboard's "compelling" objectives. The history of each school systemreveals highly segregated schools, followed by remedial plans that involvedforced busing, followed by efforts to attract or retain students through theuse of plans that abandoned busing and replaced it with greater student choice.Both cities once tried to achieve more integrated schools by relying solelyupon measures such as redrawn district boundaries, new school buildingconstruction, and unrestricted voluntary transfers. In neither city did theseprior attempts prove sufficient to [*262] achieve the city'sintegration goals. See Parts I-A and I-B, supra, at 6-18.

Moreover, giving some degree of weight to a local school board's knowledge,expertise, and concerns in these particular matters is not inconsistent withrigorous judicial scrutiny. It simply recognizes that judges are not wellsuited to act as school administrators. Indeed, in the context of schooldesegregation, this Court has repeatedly stressed the importance ofacknowledging that local school boards better understand their own communitiesand have a better knowledge of what in practice will best meet the educationalneeds of their pupils. See Milliken, 418 U.S., at 741-42, 94 S. Ct.3112, 41 L. Ed. 2d 1069 ("No single tradition in public education is moredeeply rooted than local control over the operation of schools; local autonomyhas long been thought essential both to the maintenance of community concernand support for public schools and to quality of the educationalprocess"). See also San Antonio Independent School Dist. v. Rodriguez,411 U.S. 1, 49-50, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973) (extolling localcontrol for "the opportunity it offers for participation in thedecisionmaking process that determines how . . . [*263] local taxdollars will be spent. Each locality is free to tailor local programs to localneeds. Pluralism also affords some opportunity for experimentation, innovation,and a healthy competition for educational excellence"); Epperson v.Arkansas, 393 U.S. 97, 104, 89 S. Ct. 266, 21 L. Ed. 2d 228 (1968)("Judicial interposition in the operation of the public school system ofthe Nation raises problems requiring care and restraint. . . . By and large,public education in our Nation is committed to the control of state and localauthorities"); Brown v. Board of Education, 349 U.S. 294,299, 75 S. Ct. 753, 99 L. Ed. 1083, 71 Ohio Law Abs. 584 (1955) (Brown II)("Full implementation of these constitutional principles may require solutionof varied local school problems. School authorities have the primaryresponsibility for elucidating, assessing, and solving these problems; courtswill have to consider whether the action of school authorities constitutes goodfaith implementation of the governing constitutional principles").

Experience in Seattle and Louisville is consistent with experience elsewhere.In 1987, the U.S. Commission on Civil Rights studied 125 large school districtsseeking integration. It reported that most districts [*264] — 92 ofthem, in fact — adopted desegregation policies that combined two or morehighly race-conscious strategies, for example, rezoning or pairing. See Welch83-91.

Having looked at dozens of amicus briefs, public reports, news stories,and the records in many of this Court's prior cases, which together span 50years of desegregation history in school districts across the Nation, I havediscovered many examples of districts that sought integration throughexplicitly race-conscious methods, including mandatory busing. Yet, I havefound no example or model that would permit this Court to say to Seattleand to Louisville: "Here is an instance of a desegregation plan that islikely to achieve your objectives and also makes less use of race-conscious criteriathan your plans." And, if the plurality cannot suggest such a model — andit cannot — then it seeks to impose a "narrow tailoring" requirementthat in practice would never be met.

Indeed, if there is no such plan, or if such plans are purely imagined, it isunderstandable why, as the plurality notes, ante, at 27, Seattle schoolofficials concentrated on diminishing the racial component of their districts’plan, but [*265] did not pursue eliminating that element entirely.For the plurality now to insist as it does, ante, at 27-28, that theseschool districts ought to have said so officially is either to ask for thesuperfluous (if they need only make explicit what is implicit) or to demand theimpossible (if they must somehow provide more proof that there is nohypothetical other plan that could work as well as theirs). I am notaware of any case in which this Court has read the "narrow tailoring"test to impose such a requirement. Cf. People Who Care v. RockfordBd. of Ed. School Dist. No. 205, 961 F.2d 1335, 1338 (CA7 1992)(Easterbrook, J.) ("Would it be necessary to adjudicate the obvious beforeadopting (or permitting the parties to agree on) a remedy . . . ?").

The plurality also points to the school districts’ use of numerical goals basedupon the racial breakdown of the general school population, and it faults thedistricts for failing to prove that no other set of numbers will work.See ante, at 18-20. The plurality refers to no case in support of itsdemand. Nor is it likely to find such a case. After all, this Court has in manycases explicitly permitted [*266] districts to use target ratiosbased upon the district's underlying population. See, e.g., Swann,402 U.S., at 24-25, 91 S. Ct. 1267, 28 L. Ed. 2d 554; North Carolina Bd. ofEd., 402 U.S., at 46, 91 S. Ct. 1284, 28 L. Ed. 2d 586; MontgomeryCounty Bd. of Ed., 395 U.S., at 232, 89 S. Ct. 1670, 23 L. Ed. 2d 263. Thereason is obvious: In Seattle, where the overall student population is 41%white, permitting 85% white enrollment at a single school would make it muchmore likely that other schools would have very few white students, whereas inJefferson County, with a 60% white enrollment, one school with 85% whitestudents would be less likely to skew enrollments elsewhere.

Moreover, there is research-based evidence supporting, for example, that aratio no greater than 50% minority — which is Louisville's starting point, andas close as feasible to Seattle's starting point — is helpful in limiting therisk of "white flight." See Orfield, Metropolitan SchoolDesegregation: Impacts on Metropolitan Society, in Pursuit of a Dream Deferred:Linking Housing and Education Policy 121, 125. Federal law also assumes that asimilar target percentage will help avoid detrimental "minority group isolation."See No Child Left Behind Act of 2001, [*267] Title V, Part C, 115Stat. 1806, 20 U.S.C. § 7231 et seq. (2000 ed., Supp. IV); 34 CFR §§280.2, 280.4 (2006) (implementing regulations). What other numbers are theboards to use as a "starting point"? Are they to spend days, weeks,or months seeking independently to validate the use of ratios that this Courthas repeatedly authorized in prior cases? Are they to draw numbers out of thinair? These districts have followed this Court's holdings and advice in"tailoring" their plans. That, too, strongly supports the lawfulnessof their methods.

Nor could the school districts have accomplished their desired aims (e.g.,avoiding forced busing, countering white flight, maintaining racial diversity)by other means. Nothing in the extensive history of desegregation efforts overthe past 50 years gives the districts, or this Court, any reason to believethat another method is possible to accomplish these goals. Nevertheless,JUSTICE KENNEDY suggests that school boards:

"may pursue the goalof bringing together students of diverse backgrounds and races through othermeans, including strategic site selection of new schools; drawing attendancezones with [*268] general recognition of the demographics of neighborhoods;allocating resources for special programs; recruiting students and faculty in atargeted fashion; and tracking enrollments, performance, and other statisticsby race." Ante, at 8.

But, as to "strategic site selection," Seattle has built one new highschool in the last 44 years (and that specialized school serves only 300students). In fact, six of the Seattle high schools involved in this case werebuilt by the 1920's; the other four were open by the early 1960's. Seegenerally N. Thompson & C. Marr, Building for Learning: Seattle PublicSchools Histories, 1862-2000 (2002). As to "drawing" neighborhood"attendance zones" on a racial basis, Louisville tried it, and itworked only when forced busing was also part of the plan. See supra, at12-14. As to "allocating resources for special programs," Seattle andLouisville have both experimented with this; indeed, these programs are oftenreferred to as "magnet schools," but the limited desegregation effectof these efforts extends at most to those few schools to which additionalresources are granted. In addition, there is no evidence from the experience ofthese [*269] school districts that it will make any meaningfulimpact. See Brief for Respondents in No. 05-908, p. 42. As to "recruitingfaculty" on the basis of race, both cities have tried, but only as onepart of a broader program. As to "tracking enrollments, performance andother statistics by race," tracking reveals the problem; it doesnot cure it.

JUSTICE KENNEDY sets forth two additional concerns related to "narrowtailoring." In respect to Louisville, he says first that officials stated(1) that kindergarten assignments are not subject to the race-consciousguidelines, and (2) that the child at issue here was denied permission to attendthe kindergarten he wanted because of those guidelines. Both, he explains,cannot be true. He adds that this confusion illustrates that Louisville'sassignment plan (or its explanation of it to this Court) is insufficientlyprecise in respect to "who makes the decisions,""oversight," "the precise circumstances in which an assignmentdecision" will be made; and "which of two similarly situated childrenwill be subjected to a given race-based decision." Ante, at 4.

The record suggests, however, that the child in question was not assigned tothe [*270] school he preferred because he missed the kindergartenapplication deadline. See App. in 05-915, p. 20. After he had enrolled andafter the academic year had begun, he then applied to transfer to his preferredschool after the kindergarten assignment deadline had passed, id., at21, possibly causing school officials to treat his late request as anapplication to transfer to the first grade, in respect to which the guidelinesapply. I am not certain just how the remainder of JUSTICE KENNEDY's concernsaffect the lawfulness of the Louisville program, for they seem to be failuresof explanation, not of administration. But Louisville should be able to answerthe relevant questions on remand.

JUSTICE KENNEDY's second concern is directly related to the merits of Seattle'splan: Why does Seattle's plan group Asian-Americans, Hispanic-Americans,Native-Americans, and African-Americans together, treating all as similarminorities? Ante, at 6-7. The majority suggests that Seattle'sclassification system could permit a school to be labeled "diverse"with a 50% Asian-American and 50% white student body, and no African-Americanstudents, Hispanic students, or students of other ethnicity. [*271]Ante, at 6; ante, at 15-16 (opinion of the Court).

The 50/50 hypothetical has no support in the record here; it is conjured fromthe imagination. In fact, Seattle apparently began to treat these differentminority groups alike in response to the federal Emergency School Aid Act'srequirement that it do so. Siqueland 116-117. See also Hanawalt 31; Pub. L.95-561, Tit. VI (1978) (prescribing percentage enrollment requirements for"minority" students); Siqueland 55 (discussing HEW definition of"minority"). Moreover, maintaining this federally mandated system ofclassification makes sense insofar as Seattle's experience indicates that therelevant circumstances in respect to each of these different minority groupsare roughly similar, e.g., in terms of residential patterns, and callfor roughly similar responses. This is confirmed by the fact that Seattle hasbeen able to achieve a desirable degree of diversity without the greateremphasis on race that drawing fine lines among minority groups would require.Does the plurality's view of the Equal Protection Clause mean that courts mustgive no weight to such a board determination? Does it insist upon especiallystrong [*272] evidence supporting inclusion of multiple minoritygroups in an otherwise lawful government minority-assistance program? If so,its interpretation threatens to produce divisiveness among minority groups thatis incompatible with the basic objectives of the Fourteenth Amendment.Regardless, the plurality cannot object that the constitutional defect is theindividualized use of race and simultaneously object that not enough account ofindividuals’ race has been taken.

Finally, I recognize that the Court seeks to distinguish Grutter fromthese cases by claiming that Grutter arose in "‘the context ofhigher education.'" Ante, at 16. But that is not a meaningful legaldistinction. I have explained why I do not believe the Constitution couldpossibly find "compelling" the provision of a racially diverseeducation for a 23-year-old law student but not for a 13-year-old high schoolpupil. See supra, at 46-48. And I have explained how the plans before usare more narrowly tailored than those in Grutter. See supra, at45. I add that one cannot find a relevant distinction in the fact that theseschool districts did not examine the merits of applications "individually.[*273] " See ante, at 13-15. The context here does notinvolve admission by merit; a child's academic, artistic, and athletic"merits" are not at all relevant to the child's placement. These arenot affirmative action plans, and hence "individualized scrutiny" issimply beside the point.

The upshot is that these plans’ specific features — (1) their limited andhistorically-diminishing use of race, (2) their strong reliance upon othernon-race-conscious elements, (3) their history and the manner in which thedistricts developed and modified their approach, (4) the comparison with priorplans, and (5) the lack of reasonably evident alternatives — together showthat the districts’ plans are "narrowly tailored" to achieve their"compelling" goals. In sum, the districts’ race-conscious planssatisfy "strict scrutiny" and are therefore lawful.


Direct Precedent

Two additional precedents more directly related to the plans here at issuereinforce my conclusion. The first consists of the District Court determinationin the Louisville case when it dissolved its desegregation order that there was"overwhelming evidence of the Board's good faith compliance with thedesegregation Decree [*274] and its underlying purposes,"indeed that the Board had "treated the ideal of an integrated system asmuch more than a legal obligation — they consider it a positive, desirablepolicy and an essential element of any well-rounded public schooleducation." Hampton II, 102 F. Supp. 2d, at 370. When the courtmade this determination in 2000, it did so in the context of the Louisvilledesegregation plan that the board had adopted in 1996. That plan, which tookeffect before 1996, is the very plan that in all relevant respects is in effectnow and is the subject of the present challenge.

No one claims that (the relevant portion of) Louisville's plan was unlawful in1996 when Louisville adopted it. To the contrary, there is every reason tobelieve that it represented part of an effort to implement the 1978desegregation order. But if the plan was lawful when it was first adopted andif it was lawful the day before the District Court dissolved its order, how canthe plurality now suggest that it became unlawful the following day? Isit conceivable that the Constitution, implemented through a court desegregationorder, could permit (perhaps require) the district [*275] tomake use of a race-conscious plan the day before the order was dissolved andthen forbid the district to use the identical plan the day after? See id.,at 380 ("The very analysis for dissolving desegregation decreessupports continued maintenance of a desegregated system as a compelling stateinterest"). The Equal Protection Clause is not incoherent. And federalcourts would rightly hesitate to find unitary status if the consequences of theruling were so dramatically disruptive.

Second, Seattle School Dist. No. 1, 458 U.S. 457, 102 S. Ct. 3187, 73 L.Ed. 2d 896, is directly on point. That case involves the original Seattle Plan,a more heavily race-conscious predecessor of the very plan now beforeus. In Seattle School Dist. No. 1, this Court struck down a statereferendum that effectively barred implementation of Seattle's desegregationplan and "burdened all future attempts to integrate Washington schools indistricts throughout the State." Id., at 462-463, 483, 102 S. Ct.3187, 73 L. Ed. 2d 896. Because the referendum would have prohibited theadoption of a school-integration plan that involved mandatory busing, andbecause it would have imposed a special burden on schoolintegration [*276] plans (plans that sought to integrate previouslysegregated schools), the Court found it unconstitutional. Id., at483-487, 102 S. Ct. 3187, 73 L. Ed. 2d 896.

In reaching this conclusion, the Court did not directly address theconstitutional merits of the underlying Seattle plan. But it explicitly cited Swann‘sstatement that the Constitution permitted a local district to adopt such aplan. 458 U.S., at 472, n. 15, 102 S. Ct. 3187, 73 L. Ed. 2d 896. It also citedto Justice Powell's opinion in Bakke, approving of the limiteduse of race-conscious criteria in a university-admissions "affirmativeaction" case. 458 U.S., at 472, n. 15, 102 S. Ct. 3187, 73 L. Ed. 2d 896.In addition, the Court stated that "attending an ethnically diverseschool," id., at 473, 102 S. Ct. 3187, 73 L. Ed. 2d 896, could helpprepare "minority children for citizenship in our pluralisticsociety," hopefully "teaching members of the racial majority to livein harmony and mutual respect with children of minority heritage." Ibid.(internal quotation marks and citation omitted).

It is difficult to believe that the Court that held unconstitutional areferendum that would have interfered with the implementation of this planthought that the integration plan it sought to [*277] preserve wasitself an unconstitutional plan. And if Seattle School Dist. No. 1 ispremised upon the constitutionality of the original Seattle Plan, it is equallypremised upon the constitutionality of the present plan, for the present plan isthe Seattle Plan, modified only insofar as it places even less emphasison race-conscious elements than its predecessors.

It is even more difficult to accept the plurality's contrary view, namely thatthe underlying plan was unconstitutional. If that is so, then all ofSeattle's earlier (even more race-conscious) plans must also have beenunconstitutional. That necessary implication of the plurality's positionstrikes the 13th chime of the clock. How could the plurality adopt aconstitutional standard that would hold unconstitutional large numbers ofrace-conscious integration plans adopted by numerous school boards over thepast 50 years while remaining true to this Court's desegregation precedent?



The Founders meant the Constitution as a practical document that would transmitits basic values to future generations through principles that remainedworkable over time. Hence it is important to consider [*278] thepotential consequences of the plurality's approach, as measured against theConstitution's objectives. To do so provides further reason to believe that theplurality's approach is legally unsound.

For one thing, consider the effect of the plurality's views on the partiesbefore us and on similar school districts throughout the Nation. WillLouisville and all similar school districts have to return to systems likeLouisville's initial 1956 plan, which did not consider race at all? See supra,at 12. That initial 1956 plan proved ineffective. Sixteen years into the plan,14 of 19 middle and high schools remained almost totally white or almosttotally black. Ibid.

The districts’ past and current plans are not unique. They resemble otherplans, promulgated by hundreds of local school boards, which have attempted avariety of desegregation methods that have evolved over time in light ofexperience. A 1987 Civil Rights Commission Study of 125 school districts in theNation demonstrated the breadth and variety of desegregation plans:

"The [study] documents almost 300 desegregation plans that wereimplemented between 1961 and 1985. The degree of heterogeneity withinthese [*279] districts is immediately apparent. They are located inevery region of the country and range in size from Las Cruces, New Mexico, withbarely over 15,000 students attending 23 schools in 1968, to New York City,with more than one million students in 853 schools. The sample includesdistricts in urban areas of all sizes, suburbs (e.g., Arlington County,Virginia) and rural areas (e.g., Jefferson Parish, Louisiana, andRaleigh County, West Virginia). It contains 34 countywide districts withcentral cities (the 11 Florida districts fit this description, plus ClarkCounty, Nevada and others) and a small number of consolidated districts (New CastleCounty, Delaware and Jefferson County, Kentucky).

"The districts also vary in their racial compositions and levels ofsegregation. Initial plans were implemented in Mobile, Alabama and MecklenburgCounty, North Carolina, and in a number of other southern districts in the faceof total racial segregation. At the other extreme, Santa Clara, California hada relatively even racial distribution prior to its 1979 desegregation plan.When the 1965 plan was designed for Harford County, Maryland, the district was92 percent white. Compton, California, [*280] on the other hand,became over 99 percent black in the 1980s, while Buffalo, New York had avirtual 50-50 split between white and minority students prior to its 1977 plan.

"It is not surprising to find a large number of different desegregationstrategies in a sample with this much variation." Welch 23 (footnotesomitted).

A majority of these desegregation techniques explicitly considered a student'srace. See id., at 24-28. Transfer plans, for example, allowed studentsto shift from a school in which they were in the racial majority to a school inwhich they would be in a racial minority. Some districts, such as Richmond,California, and Buffalo, New York, permitted only "one-way" transfers,in which only black students attending predominantly black schools werepermitted to transfer to designated receiver schools. Id., at 25.Fifty-three of the 125 studied districts used transfers as a component of theirplans. Id., at 83-91.

At the state level, 46 States and Puerto Rico have adopted policies thatencourage or require local school districts to enact interdistrict orintradistrict open choice plans. Eight of those States condition approval oftransfers to another [*281] school or district on whether thetransfer will produce increased racial integration. Eleven other States requirelocal boards to deny transfers that are not in compliance with the local schoolboard's desegregation plans. See Education Commission of the States, OpenEnrollment: 50-State Report (2007), online at

Arkansas, for example, provides by statute that "no student may transferto a nonresident district where the percentage of enrollment for the student'srace exceeds that percentage in the student's resident district." Ark.Code Ann. § 6-18-206(f)(1), as amended 2007 Ark. Gen. Acts 552 (2007). An Ohiostatute provides, in respect to student choice, that each school district mustestablish "procedures to ensure that an appropriate racial balance ismaintained in the district schools." Ohio Rev. Code Ann. §3313.98(B)(2)(b)(iii) (Lexis Supp. 2006). Ohio adds that a "district mayobject to the enrollment of a native student in an adjacent or other districtin order to maintain an appropriate racial balance." § 3313.98 (F)(1)(a).

A Connecticut statute states that its student choice program will seek to"preserve racial and ethnic [*282] balance." Conn. Gen.Stat. § 10-266aa(b)(2) (2007). Connecticut law requires each school district tosubmit racial group population figures to the State Board of Education. §10-226a. Another Connecticut regulation provides that "any school in whichthe Proportion for the School falls outside of a range from 25 percentagepoints less to 25 percentage points more than the Comparable Proportion for theSchool District, shall be determined to be racially imbalanced." Conn.Agencies Regs. § 10-226e-3(b) (1999). A "racial imbalance"determination requires the district to submit a plan to correct the racialimbalance, which plan may include "mandatory pupil reassignment." §§10-226e-5(a) and (c)(4).

Interpreting that State's Constitution, the Connecticut Supreme Court has heldlegally inadequate the reliance by a local school district solely upon some ofthe techniques JUSTICE KENNEDY today recommends (e.g., reallocatingresources, etc.). See Sheff v. O’Neill, 238 Conn. 1, 678 A.2d1267 (1996). The State Supreme Court wrote: "Despite the initiativesundertaken by the defendants to alleviate the severe racial and ethnicdisparities among school districts, and [*283] despite the fact thatthe defendants did not intend to create or maintain these disparities, thedisparities that continue to burden the education of the plaintiffs infringeupon their fundamental state constitutional right to a substantially equaleducational opportunity." Id., at 42, 678 A. 2d, at 1289.

At a minimum, the plurality's views would threaten a surge of race-basedlitigation. Hundreds of state and federal statutes and regulations use racialclassifications for educational or other purposes. See supra, at 27. Inmany such instances, the contentious force of legal challenges to theseclassifications, meritorious or not, would displace earlier calm.

The wide variety of different integration plans that school districts usethroughout the Nation suggests that the problem of racial segregation inschools, including de facto segregation, is difficult to solve. The factthat many such plans have used explicitly racial criteria suggests that suchcriteria have an important, sometimes necessary, role to play. The fact thatthe controlling opinion would make a school district's use of such criteriaoften unlawful (and the plurality's "colorblind" viewwould [*284] make such use always unlawful) suggests that today'sopinion will require setting aside the laws of several States and many localcommunities.

As I have pointed out, supra, at 4, de facto resegregation is onthe rise. See Appendix A, infra. It is reasonable to conclude that suchresegregation can create serious educational, social, and civic problems. Seesupra, at 37-45. Given the conditions in which school boards work to setpolicy, see supra, at 20-21, they may need all of the means presently attheir disposal to combat those problems. Yet the plurality would deprive themof at least one tool that some districts now consider vital — the limited useof broad race-conscious student population ranges.

I use the words "may need" here deliberately. The plurality, or atleast those who follow JUSTICE THOMAS'" ‘color-blind'" approach, see ante,at 26-27 (THOMAS, J., concurring); Grutter, 539 U.S., at 353-354, 123 S.Ct. 2325, 156 L. Ed. 2d 304 (THOMAS, J., concurring in part and dissenting inpart), may feel confident that, to end invidious discrimination, one must end allgovernmental use of race-conscious criteria including those with inclusiveobjectives. See ante, at [*285] 40-41 (plurality opinion);see also ante, at 26 (THOMAS, J., concurring). By way of contrast, I donot claim to know how best to stop harmful discrimination; how best to create asociety that includes all Americans; how best to overcome our serious problemsof increasing de facto segregation, troubled inner city schooling, andpoverty correlated with race. But, as a judge, I do know that the Constitutiondoes not authorize judges to dictate solutions to these problems. Rather, theConstitution creates a democratic political system through which the peoplethemselves must together find answers. And it is for them to debate how best toeducate the Nation's children and how best to administer America's schools toachieve that aim. The Court should leave them to their work. And it is for themto decide, to quote the plurality's slogan, whether the best "way to stopdiscrimination on the basis of race is to stop discriminating on the basis ofrace." Ante, at 40-41. See also Parents Involved VII, 426F.3d at 1222 (Bea, J., dissenting) ("The way to end racial discriminationis to stop discriminating by race"). That is why the Equal ProtectionClause outlaws invidious [*286] discrimination, but does notsimilarly forbid all use of race-conscious criteria.

Until today, this Court understood the Constitution as affording the people,acting through their elected representatives, freedom to select the use of"race-conscious" criteria from among their available options. See AdarandConstructors, Inc., 515 U.S., at 237, 115 S. Ct. 207, 132 L. Ed. 2d 158("Strict scrutiny" in this context is "[not] ‘strict in theory,but fatal in fact'" (quoting Fullilove, 448 U.S., at 519, 100 S.Ct. 2758, 65 L. Ed. 2d 902 (Marshall, J., concurring in judgment))). Today,however, the Court restricts (and some Members would eliminate) that leeway. Ifear the consequences of doing so for the law, for the schools, for thedemocratic process, and for America's efforts to create, out of its diversity,one Nation.



To show that the school assignment plans here meet the requirements of theConstitution, I have written at exceptional length. But that length isnecessary. I cannot refer to the history of the plans in these cases to justifythe use of race-conscious criteria without describing that history in full. Icannot rely upon Swann‘s statement that the use of race-conscious limitsis [*287] permissible without showing, rather than simply asserting,that the statement represents a constitutional principle firmly rooted infederal and state law. Nor can I explain my disagreement with the Court'sholding and the plurality's opinion, without offering a detailed account of thearguments they propound and the consequences they risk.

Thus, the opinion's reasoning is long. But its conclusion is short: The plansbefore us satisfy the requirements of the Equal Protection Clause. And it isthe plurality's opinion, not this dissent that "fails to ground the resultit would reach in law." Ante, at 28.

Four basic considerations have led me to this view. First, the historiesof Louisville and Seattle reveal complex circumstances and a long tradition ofconscientious efforts by local school boards to resist racial segregation inpublic schools. Segregation at the time of Brown gave way to expansiveremedies that included busing, which in turn gave rise to fears of white flightand resegregation. For decades now, these school boards have considered andadopted and revised assignment plans that sought to rely less upon race, toemphasize greater student choice, and to improve [*288] theconditions of all schools for all students, no matter the color of their skin, nomatter where they happen to reside. The plans under review — which are lessburdensome, more egalitarian, and more effective than prior plans — continuein that tradition. And their history reveals school district goals whoseremedial, educational, and democratic elements are inextricably intertwinedeach with the others. See Part I, supra, at 2-21.

Second, since this Court's decision in Brown, the law hasconsistently and unequivocally approved of both voluntary and compulsoryrace-conscious measures to combat segregated schools. The Equal ProtectionClause, ratified following the Civil War, has always distinguished in practicebetween state action that excludes and thereby subordinates racial minoritiesand state action that seeks to bring together people of all races. From Swannto Grutter, this Court's decisions have emphasized this distinction,recognizing that the fate of race relations in this country depends upon unityamong our children, "for unless our children begin to learn together,there is little hope that our people will ever learn to live together." Milliken,418 U.S., at 783, 94 S. Ct. 3112, 41 L. Ed. 2d 1069 [*289](Marshall, J., dissenting). See also C. Sumner, Equality Before the Law:Unconstitutionality of Separate Colored Schools in Massachusetts, in 2 TheWorks of Charles Sumner 327, 371 (1849) ("The law contemplates not onlythat all be taught, but that all shall be taught together"). See Part II, supra,at 21-37.

Third, the plans before us, subjected to rigorous judicial review, aresupported by compelling state interests and are narrowly tailored to accomplishthose goals. Just as diversity in higher education was deemed compelling in Grutter,diversity in public primary and secondary schools — where there is even moreto gain — must be, a fortiori, a compelling state interest. Even apartfrom Grutter, five Members of this Court agree that "avoidingracial isolation" and "achieving a diverse student population"remain today compelling interests. Ante, at 17-18 (opinion of KENNEDY,J.). These interests combine remedial, educational, and democratic objectives.For the reasons discussed above, however, I disagree with JUSTICE KENNEDY thatSeattle and Louisville have not done enough to demonstrate that their presentplans are necessary to continue upon the path [*290] set by Brown.These plans are more "narrowly tailored" than therace-conscious law school admissions criteria at issue in Grutter.Hence, their lawfulness follows a fortiori from this Court's priordecisions. See Parts III-IV, supra, at 37-57.

Fourth, the plurality's approach risks serious harm to the law and forthe Nation. Its view of the law rests either upon a denial of the distinctionbetween exclusionary and inclusive use of race-conscious criteria in the contextof the Equal Protection Clause, or upon such a rigid application of its"test" that the distinction loses practical significance.Consequently, the Court's decision today slows down and sets back the work oflocal school boards to bring about racially diverse schools. See Part V, supra,at 57-63.

Indeed, the consequences of the approach the Court takes today are serious.Yesterday, the plans under review were lawful. Today, they are not. Yesterday,the citizens of this Nation could look for guidance to this Court's unanimouspronouncements concerning desegregation. Today, they cannot. Yesterday, schoolboards had available to them a full range of means to combat segregatedschools. Today, [*291] they do not.

The Court's decision undermines other basic institutional principles as well.What has happened to stare decisis? The history of the plans before us,their educational importance, their highly limited use of race — all these andmore — make clear that the compelling interest here is stronger than in Grutter.The plans here are more narrowly tailored than the law school admissionsprogram there at issue. Hence, applying Grutter‘s strict test, theirlawfulness follows a fortiori. To hold to the contrary is to transformthat test from "strict" to "fatal in fact" — the veryopposite of what Grutter said. And what has happened to Swann? ToMcDaniel? To Crawford? To Harris? To School Committeeof Boston? To Seattle School Dist. No. 1? After decades of vibrantlife, they would all, under the plurality's logic, be written out of the law.

And what of respect for democratic local decisionmaking by States and schoolboards? For several decades this Court has rested its public school decisionsupon Swann‘s basic view that the Constitution grants local school districtsa significant degree of leeway where the inclusive use ofrace-conscious [*292] criteria is at issue. Now localities will haveto cope with the difficult problems they face (including resegregation)deprived of one means they may find necessary.

And what of law's concern to diminish and peacefully settle conflict among theNation's people? Instead of accommodating different good-faith visions of ourcountry and our Constitution, today's holding upsets settled expectations,creates legal uncertainty, and threatens to produce considerable furtherlitigation, aggravating race-related conflict.

And what of the long history and moral vision that the Fourteenth Amendmentitself embodies? The plurality cites in support those who argued in Brownagainst segregation, and JUSTICE THOMAS likens the approach that I have takento that of segregation's defenders. See ante, at 39-41 (pluralityopinion) (comparing Jim Crow segregation to Seattle and Louisville'sintegration polices); ante, at 28-32 (THOMAS, J., concurring). Butsegregation policies did not simply tell schoolchildren "where they couldand could not go to school based on the color of their skin," ante,at 40 (plurality opinion); they perpetuated a caste system rooted in theinstitutions of slavery [*293] and 80 years of legalizedsubordination. The lesson of history, see ante, at 39 (pluralityopinion), is not that efforts to continue racial segregation areconstitutionally indistinguishable from efforts to achieve racial integration.Indeed, it is a cruel distortion of history to compare Topeka, Kansas, in the1950's to Louisville and Seattle in the modern day — to equate the plight ofLinda Brown (who was ordered to attend a Jim Crow school) to the circumstancesof Joshua McDonald (whose request to transfer to a school closer to home wasinitially declined). This is not to deny that there is a cost in applying"a state-mandated racial label." Ante, at 17 (KENNEDY, J.,concurring in part and concurring in judgment). But that cost does notapproach, in degree or in kind, the terrible harms of slavery, the resultingcaste system, and 80 years of legal racial segregation.

* * *

Finally, what of the hope and promise of Brown? For much of thisNation's history, the races remained divided. It was not long ago that peopleof different races drank from separate fountains, rode on separate buses, andstudied in separate schools. In this Court's finest hour, Brown v.Board [*294] of Education challenged this history andhelped to change it. For Brown held out a promise. It was a promiseembodied in three Amendments designed to make citizens of slaves. It was thepromise of true racial equality — not as a matter of fine words on paper, butas a matter of everyday life in the Nation's cities and schools. It was aboutthe nature of a democracy that must work for all Americans. It sought one law,one Nation, one people, not simply as a matter of legal principle but in termsof how we actually live.

Not everyone welcomed this Court's decision in Brown. Three years afterthat decision was handed down, the Governor of Arkansas ordered state militiato block the doors of a white schoolhouse so that black children could notenter. The President of the United States dispatched the 101st AirborneDivision to Little Rock, Arkansas, and federal troops were needed to enforce adesegregation decree. See Cooper v. Aaron, 358 U.S. 1, 78 S. Ct.1401, 3 L. Ed. 2d 5 (1958). Today, almost 50 years later, attitudes toward racein this Nation have changed dramatically. Many parents, white and black alike,want their children to attend schools with children of different races. Indeed,[*295] the very school districts that once spurned integration nowstrive for it. The long history of their efforts reveals the complexities anddifficulties they have faced. And in light of those challenges, they have askedus not to take from their hands the instruments they have used to rid theirschools of racial segregation, instruments that they believe are needed toovercome the problems of cities divided by race and poverty. The pluralitywould decline their modest request.

The plurality is wrong to do so. The last half-century has witnessed greatstrides toward racial equality, but we have not yet realized the promise of Brown.To invalidate the plans under review is to threaten the promise of Brown.The plurality's position, I fear, would break that promise. This is a decisionthat the Court and the Nation will come to regret.

I must dissent.

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Primary Documents: JUDGES: OPINION BY: OPINION: Resegregation Trends Percentage of Black Students in 90-100 Percent Nonwhite and MajorityNonwhite Public Schools by Region, 1950-1954 to 2000, Fall Enrollment Changes in the Percentage of White Students in Schools Attended by theAverage Black Student by State, 1970-2003 (includes States with 5% or greaterenrollment of black students in 1970 and 1980) Percentage of White Students in Schools Attended bythe Average Black Student, 1968-2000 Percentage of Students in Minority Schools by Race, 2000-2001 Sources for Parts I-A and I-B Section 1. Segregation CONCUR BY: CONCUR: DISSENT BY: DISSENT: