Parents Involved in Community Schools v. Seattle School District No. 1

OPINION OF THE COURT PARENTS INVOLVED IN COMMUNITY SCHOOLS V.SEATTLE SCHOOL DIST. NO.
1 551 U. S. ____ (2007) SUPREME COURT OF THE UNITED STATES NOS. 05-908 AND 05-915 PARENTS INVOLVED IN COMMUNITY SCHOOLS,
PETITIONER

															05–908 v. SEATTLE SCHOOL DISTRICT NO. 1
et al. on writ of certiorari to the united states
court of appeals for the ninth circuit CRYSTAL D. MEREDITH, custodial parent and next
friend of JOSHUA RYAN McDONALD, PETITIONER

															05–915 v. JEFFERSON COUNTY BOARD OF EDUCATION
et al. on writ of certiorari to the united states
court of appeals for the sixth circuit [June 28, 2007] Chief Justice Roberts announced the judgment of the Court, and delivered the opinion of
the Court with respect to Parts I, II, III–A, and III–C, and an
opinion with respect to Parts III–B and IV, in which Justices
Scalia, Thomas, and Alito join.

															   The school districts in these
cases voluntarily adopted student assignment plans that rely upon
race to determine which public schools certain children may attend.
The Seattle school district classifies children as white or
nonwhite; the Jefferson County school district as black or “other.”
In Seattle, this racial classification is used to allocate slots in
oversubscribed high schools. In Jefferson County, it is used 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 in assigning that student to a particular
school, so that the racial balance at the school falls within a
predetermined range based on the racial composition of the school
district as a whole. Parents of students denied assignment to
particular schools under these plans solely because of their race
brought suit, contending that allocating children to different
public schools on the basis of race violated the Fourteenth
Amendment guarantee of equal protection. The Courts of Appeals
below upheld the plans. We granted certiorari, and now reverse.

															I

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

															A

															   Seattle School District No. 1
operates 10 regular public high schools. In 1998, it adopted the
plan at issue in this case for assigning students to these schools.
App. in No. 05–908, pp. 90a–92a.[ Footnote 1 ] The plan allows incoming ninth graders to
choose from among any of the district’s high schools, ranking
however many schools they wish in order of preference.

															   Some schools are more popular
than others. If too many students list the same school as their
first choice, the district employs a series of “tiebreakers” to
determine who will fill the open slots at the oversubscribed
school. The first tiebreaker selects for admission students who
have a sibling currently enrolled in the chosen school. The next
tiebreaker depends upon the racial composition of the particular
school and the race of the individual student. In the district’s
public schools approximately 41 percent of enrolled students are
white; the remaining 59 percent, comprising all other racial
groups, are classified by Seattle for assignment purposes as
nonwhite. Id., at 38a, 103a.[ Footnote 2 ] If an oversubscribed school is not within 10
percentage points of the district’s overall white/nonwhite racial
balance, it is what the district calls “integration positive,” and
the district employs a tiebreaker that selects for assignment
students whose race “will serve to bring the school into balance.” Id., at 38a. See Parents Involved VII, 426
F. 3d 1162, 1169–1170 (CA9 2005) (en banc).[ Footnote 3 ] If it is still necessary to select
students for the school after using the racial tiebreaker, the next
tiebreaker is the geographic proximity of the school to the
student’s residence. App. in No. 05–908, at 38a.

															   Seattle has never operated segregated
schools—legally separate schools for students of different
races—nor has it ever been subject to court-ordered desegregation.
It nonetheless employs the racial tiebreaker in an attempt to
address the effects of racially identifiable housing patterns on
school assignments. Most white students live in the northern part
of Seattle, most students of other racial backgrounds in the
southern part. Parents Involved VII , supra , at
1166. Four of Seattle’s high schools are located in the
north—Ballard, Nathan Hale, Ingraham, and Roosevelt—and five in the
south—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 were oversubscribed—Ballard, Nathan Hale, Roosevelt,
Garfield, and Franklin—so much so that 82 percent of incoming ninth
graders ranked one of these schools as their first choice. Id., at 38a. Three of the oversubscribed schools were
“integration positive” because the school’s white enrollment the
previous school year was greater than 51 percent—Ballard, Nathan
Hale, and Roosevelt. Thus, more nonwhite students (107, 27, and 82,
respectively) who selected one of these three schools as a top
choice received placement at the school than would have been the
case had race not been considered, and proximity been the next
tiebreaker. Id., at 39a–40a. Franklin was “integration
positive” because its nonwhite enrollment the previous school year
was greater than 69 percent; 89 more white students were assigned
to Franklin by operation of the racial tiebreaker in the 2000–2001
school year than otherwise would have been. Ibid. Garfield
was the only oversubscribed school whose composition during the
1999–2000 school year was within the racial guidelines, although in
previous years Garfield’s enrollment had been predominantly
nonwhite, and the racial tiebreaker had been used to give
preference to white students. Id., at 39a.

															   Petitioner Parents Involved in Community
Schools (Parents Involved) is a nonprofit corporation comprising
the parents of children who have been or may be denied assignment
to their chosen high school in the district because of their 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’s special Biotechnology Career Academy. Andy suffered
from attention deficit hyperactivity disorder and dyslexia, but had
made good progress with hands-on instruction, and his mother and
middle school teachers thought that the smaller biotechnology
program held the most promise for his continued success. Andy was
accepted into this selective program but, because of the racial
tiebreaker, was denied 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 Equal Protection
Clause of the Fourteenth Amendment,[ Footnote 4 ] Title VI of the Civil Rights Act of
1964,[ Footnote 5 ] and the
Washington Civil Rights Act.[ Footnote 6 ] Id., at 28a–35a.

															   The District Court granted summary judgment to
the school district, finding that state law did not bar the
district’s use of the racial tiebreaker and that the plan survived
strict scrutiny on the federal constitutional claim because it was
narrowly tailored to serve a compelling government interest. 137
F. Supp. 2d 1224, 1240 (WD Wash. 2001) ( Parents Involved
I ). The Ninth Circuit initially reversed based on its
interpretation of the Washington Civil Rights Act, 285 F. 3d
1236, 1253 (2002) ( Parents Involved II ), and enjoined the
district’s use of the integration tiebreaker, id., at
1257. Upon realizing that the litigation would not be resolved in
time for assignment decisions for the 2002–2003 school year, the
Ninth Circuit withdrew its opinion, 294 F. 3d 1084 (2002)
( Parents Involved III ), vacated the injunction, and,
pursuant to Wash. Rev. Code §2.60.020 (2006), certified the
state-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 bars only preferential treatment
programs “where race or gender is used by government to select a
less qualified applicant over a more qualified applicant,” and not
“[p]rograms which are racially neutral, such as the [district’s]
open choice plan.” Parents Involved in Community Schools v. Seattle School Dist., No. 1, 149 Wash. 2d 660, 689–690,
663, 72 P. 3d 151, 166, 153 (2003) (en banc) ( Parents
Involved V ). The state court returned the case to the Ninth
Circuit for further proceedings. Id., at 690, 72
P. 3d, at 167.

															   A panel of the Ninth Circuit then again
reversed the District Court, this time ruling on the federal
constitutional question. Parents Involved VI, 377
F. 3d 949 (2004). The panel determined that while achieving
racial diversity and avoiding racial isolation are compelling
government interests, id., at 964, Seattle’s use of the
racial tiebreaker was not narrowly tailored to achieve these
interests, id., at 980. The Ninth Circuit granted
rehearing en banc, 395 F. 3d 1168 (2005), and overruled the
panel decision, affirming the District Court’s determination that
Seattle’s plan was narrowly tailored to serve a compelling
government interest, Parents Involved VII , 426 F. 3d,
at 1192–1193. We granted certiorari. 547 U. S. __ (2006).

															B

															   Jefferson County Public Schools
operates the public school system in metropolitan Louisville,
Kentucky. In 1973 a federal court found that Jefferson County had
maintained a segregated school system, Newburg Area Council,
Inc. v. Board of Ed. of Jefferson Cty. , 489
F. 2d 925, 932 (CA6), vacated and remanded, 418 U. S. 918 ,
reinstated with modifications, 510 F. 2d 1358, 1359 (CA6
1974), and in 1975 the District Court entered a desegregation
decree. See Hampton v. 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 Court
dissolved the decree after finding that the district had achieved
unitary status by eliminating “[t]o the greatest extent
practicable” the vestiges of its prior policy of segregation. Hampton v. Jefferson Cty. Bd. of Ed. , 102
F. Supp. 2d 358, 360 (2000). See Board of Ed. of Oklahoma
City Public Schools v. Dowell , 498 U. S. 237 , 249–250
(1991); Green v. School Bd. of New Kent Cty. , 391 U. S. 430 ,
435–436 (1968).

															   In 2001, after the decree had
been dissolved, Jefferson County adopted the voluntary 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; most of 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)
( McFarland I ). The plan requires all nonmagnet schools to
maintain a minimum black enrollment of 15 percent, and a maximum
black 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 is designated a “resides” school to
which students within a specific geographic area are assigned;
elementary resides schools are “grouped into clusters in order to
facilitate integration.” App. in No. 05–915, at 82. The district
assigns students to nonmagnet schools in one of two ways: Parents
of kindergartners, first-graders, and students new to the district
may submit an application indicating a first and second choice
among the schools within their cluster; students who do not submit
such an application are assigned within the cluster by the
district. “Decisions to assign students to schools within each
cluster are based on available space within the schools and the
racial guidelines in the District’s current student assignment
plan.” Id., at 38. If a school has reached the “extremes
of the racial guidelines,” a student whose race would contribute to
the school’s racial imbalance will not be assigned there. Id., at 38–39, 82. After assignment, students at all grade
levels are permitted to apply to transfer between nonmagnet schools
in the district. Transfers may be requested for any number of
reasons, and may be denied because of lack of available space or on
the basis of the racial guidelines. Id., at 43.[ Footnote 7 ]

															   When petitioner Crystal Meredith moved into
the school district in August 2002, she sought to enroll her son,
Joshua McDonald, in kindergarten for the 2002–2003 school year. His
resides school was only a mile from his new home, but it had no
available space—assignments had been made in May, and the class was
full. Jefferson County assigned Joshua to another elementary school
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 from home. See Tr. in McFarland I, pp. 1–49 through 1–54 (Dec. 8, 2003). Space was available at
Bloom, and intercluster transfers are allowed, but Joshua’s
transfer was nonetheless denied because, in the words of Jefferson
County, “[t]he transfer would have an adverse effect on
desegregation compliance” of Young. App. in No. 05–915, at
97.[ Footnote 8 ]

															   Meredith brought suit in the Western District
of Kentucky, alleging violations of the Equal Protection Clause of
the Fourteenth Amendment. The District Court found that Jefferson
County had asserted a compelling interest in maintaining racially
diverse schools, and that the assignment plan was (in all relevant
respects) narrowly tailored to serve that compelling interest. McFarland I , supra , at 837.[ Footnote 9 ] The Sixth Circuit affirmed in a per curiam opinion relying upon the reasoning of the
District Court, concluding that a written opinion “would serve no
useful purpose.” McFarland v. Jefferson Cty. Public
Schools , 416 F. 3d 513, 514 (2005) ( McFarland
II ). We granted certiorari. 547 U. S. __ (2006).

															II

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

															   This argument is unavailing. The
group’s members have children in the district’s elementary, middle,
and high schools, App. in No. 05–908, at 299a–301a; Affidavit of
Kathleen Brose Pursuant to this Court’s Rule 32.3 (Lodging of
Petitioner Parents Involved), and the complaint sought declaratory
and injunctive relief on behalf of Parents Involved members whose
elementary and middle school children may be “denied admission to
the high schools of their 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 members will not be denied
admission to a school based on their race—because they choose an
undersubscribed school or an oversubscribed school in which their
race is an advantage—does not eliminate the injury claimed.
Moreover, Parents Involved also asserted an interest in not being
“forced to compete for seats at certain high schools in a system
that uses race as a deciding factor in many of its admissions
decisions.” Ibid. As we have held, one form of injury
under the Equal Protection Clause is being forced to compete in a
race-based system that may prejudice the plaintiff, Adarand
Constructors, Inc. v. Peńa , 515 U. S. 200 , 211 (1995); Northeastern Fla. Chapter, Associated Gen. Contractors of
America v. Jacksonville , 508 U. S. 656 , 666
(1993), an injury that the members of Parents Involved can validly
claim on behalf of their children.

															   In challenging standing, Seattle also notes
that it has ceased using the racial tiebreaker pending the outcome
of this litigation. Brief for Respondents in No. 05–908,
at 16–17. But the district vigorously defends the
constitutionality of its race-based program, and nowhere suggests
that if this litigation is resolved in its favor it will not resume
using race to assign students. Voluntary cessation does not moot a
case or controversy unless “subsequent events ma[ke] it absolutely
clear that the allegedly wrongful behavior could not reasonably be
expected to recur,” Friends of Earth, Inc. v. Laidlaw
Environmental Services (TOC), Inc. , 528 U. S. 167 , 189
(2000) (quoting United States v. Concentrated
Phosphate Export Assn., Inc. , 393 U. S. 199 , 203
(1968) (internal quotation marks omitted)), a heavy burden that
Seattle has clearly 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, Arbaugh v. Y & H Corp. , 546 U. S. 500 , 514
(2006). Although apparently Joshua has now been granted a transfer
to Bloom, the school to which transfer was denied under the racial
guidelines, Tr. of Oral Arg. in No. 05–915, at 45, the racial
guidelines apply at all grade levels. Upon Joshua’s enrollment in
middle school, he may again be subject to assignment based on his
race. In addition, Meredith sought damages in her complaint, which
is sufficient to preserve our ability to consider the question. Los Angeles v. Lyons , 461 U. S. 95 , 109
(1983).

															III

															A

															   It is well established that when
the government distributes burdens or benefits on the basis of
individual racial classifications, that action is reviewed under
strict scrutiny. Johnson v. California , 543 U. S. 499 , 505–506
(2005); Grutter v. Bollinger , 539 U. S. 306 , 326
(2003); Adarand, supra , at 224. As the Court recently
reaffirmed, “ ‘racial classifications are simply too
pernicious to permit any but the most exact connection between
justification and classification.’ ” Gratz v. Bollinger , 539 U. S. 244 , 270
(2003) (quoting Fullilove v. Klutznick , 448 U. S. 448 , 537
(1980) (Stevens, J., dissenting); brackets omitted). In order to
satisfy this searching standard of review, the school districts
must demonstrate that the use of individual racial classifications
in the assignment plans here under review is “narrowly tailored” to
achieve a “compelling” government interest. Adarand , supra , at 227.

															   Without attempting in these cases to set forth
all the interests a school district might assert, it suffices to
note that our prior cases, in evaluating the use of racial
classifications in the school context, have recognized two
interests that qualify as compelling. The first is the compelling
interest of remedying the effects of past intentional
discrimination. See Freeman v. Pitts , 503 U. S. 467 , 494 (1992). Yet the
Seattle public schools have not shown that they were ever
segregated by law, and were not subject to court-ordered
desegregation decrees. The Jefferson County public schools were
previously segregated by law and were subject to a desegregation
decree entered in 1975. In 2000, the District Court that entered
that decree dissolved it, finding that Jefferson County had
“eliminated the vestiges associated with the former policy of
segregation and its pernicious effects,” and thus had achieved
“unitary” status. Hampton , 102 F. Supp. 2d, at 360.
Jefferson County accordingly does not rely upon an interest in
remedying the effects of past intentional discrimination in
defending its present use of race in assigning students. See Tr. of
Oral Arg. in No. 05–915, at 38.

															   Nor could it. We have emphasized
that the harm being remedied by mandatory desegregation plans is
the harm that is traceable to segregation, and that “the
Constitution is not violated by racial imbalance in the schools,
without more.” Milliken v. Bradley , 433 U. S. 267 , 280,
n. 14 (1977). See also Freeman , supra , at
495–496; Dowell , 498 U. S., at 248; Milliken v. Bradley , 418 U. S. 717 , 746
(1974). Once Jefferson County achieved unitary status, it had
remedied the constitutional wrong that allowed race-based
assignments. Any continued use of race must be justified on some
other basis.[ Footnote
10 ]

															   The second government interest we have
recognized as compelling for purposes of strict scrutiny is the
interest in diversity in higher education upheld in Grutter , 539 U. S., at 328. The specific interest found
compelling in Grutter was student body diversity “in the
context of higher education.” Ibid. The diversity interest
was not focused on race alone but encompassed “all factors that may
contribute to student body diversity.” Id., at 337. 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, and provides examples
of admittees who have lived or traveled widely abroad, are fluent
in several languages, have overcome personal adversity and family
hardship, have exceptional records of extensive community service,
and have had successful careers in other fields.” Id., at
338 (brackets and internal quotation marks omitted).

															The Court quoted the articulation of diversity from
Justice Powell’s opinion in Regents of the University of
California v. Bakke , 438 U. S. 265 (1978),
noting that “it is not an interest in simple ethnic diversity, in
which a specified percentage of the student body is in effect
guaranteed to be members of selected ethnic groups, that can
justify the use of race.” Grutter , supra, at
324–325 (citing and quoting Bakke , supra , at
314–315 (opinion of Powell, J.); brackets and internal quotation
marks omitted). Instead, what was upheld in Grutter was
consideration of “a far broader array of qualifications and
characteristics of which racial or ethnic origin is but a single
though important element.” 539 U. S., at 325 (quoting Bakke , supra , at 315 (opinion of Powell, J.);
internal quotation marks omitted).

															   The entire gist of the analysis in Grutter was that the admissions program at issue there
focused on each applicant as an individual, and not simply as a
member of a particular racial group. The classification of
applicants by race upheld in Grutter was only as part of a
“highly individualized, holistic review,” 539 U. S., at 337. As the
Court explained, “[t]he importance of this individualized
consideration in the context of a race-conscious admissions program
is paramount.” Ibid. The point of the narrow tailoring
analysis in which the Grutter Court engaged was to ensure
that the use of racial classifications was indeed part of a broader
assessment of diversity, and not simply an effort to achieve racial
balance, which the Court explained would be “patently
unconstitutional.” Id. , at 330.

															   In the present cases, by contrast, race is not
considered as part of a broader effort to achieve “exposure to
widely diverse people, cultures, ideas, and viewpoints,” ibid. ; race, for some students, is determinative standing
alone. The districts argue that other factors, such as student
preferences, affect assignment decisions under their plans, but
under each plan when race comes into play, it is decisive by
itself. It is not simply one factor weighed with others in reaching
a decision, as in Grutter ; it is the factor. Like
the University of Michigan undergraduate plan struck down in Gratz , 539 U. S., at 275, the plans here “do not provide
for a meaningful individualized review of applicants” but instead
rely on racial classifications in a “nonindividualized, mechanical”
way. Id., at 276, 280 (O’Connor, J., concurring).

															   Even when it comes to race, the plans here
employ only a limited notion of diversity, viewing race exclusively
in white/nonwhite terms in Seattle and black/“other” terms in
Jefferson County.[ Footnote
11 ] But see Metro Broadcasting, Inc. v. FCC , 497 U. S. 547 ,
610 (1990) (“We are a Nation not of black and white alone, but one
teeming with divergent communities knitted together with various
traditions and carried forth, above all, by individuals”)
(O’Connor, J., dissenting). The Seattle “Board Statement
Reaffirming Diversity Rationale” speaks of the “inherent
educational value” in “[p]roviding students the opportunity to
attend schools with diverse student enrollment,” App. in No.
05–908, at 128a, 129a. But under the Seattle plan, a school with 50
percent Asian-American students and 50 percent white students but
no African-American, Native-American, or Latino students would
qualify as balanced, while a school with 30 percent Asian-American,
25 percent African-American, 25 percent Latino, and 20 percent
white students would not. It is hard to understand how a plan that
could allow these results can be viewed as being concerned with
achieving enrollment that is “ ‘broadly diverse,’ ” Grutter, supra , at 329.

															   Prior to Grutter , the courts of
appeals rejected as unconstitutional attempts to implement
race-based assignment plans—such as the plans at issue here—in
primary and secondary schools. See, e.g., Eisenberg v. Montgomery Cty. Public Schools , 197
F. 3d 123, 133 (CA4 1999); Tuttle v. Arlington
Cty. School Bd. , 195 F. 3d 698, 701 (CA4 1999); Wessman v. Gittens , 160 F. 3d 790, 809 (CA1
1998). See also Ho v. San Francisco Unified School
Dist. , 147 F. 3d 854, 865 (CA9 1998). After Grutter , however, the two Courts of Appeals in these
cases, and one other, found that race-based assignments were
permissible at the elementary and secondary level, largely in
reliance on that case. See Parents Involved VII , 426
F. 3d, at 1166; McFarland II , 416 F. 3d, at 514; Comfort v. Lynn School Comm. , 418 F. 3d 1,
13 (CA1 2005).

															   In upholding the admissions plan in Grutter , though, this Court relied upon considerations
unique to institutions of higher education, noting that in light of
“the expansive freedoms of speech and thought associated with the
university environment, universities occupy a special niche in our
constitutional tradition.” 539 U. S., at 329. See also Bakke , supra , at 312, 313 (opinion of Powell,
J.). The Court explained that “[c]ontext matters” in applying
strict scrutiny, and repeatedly noted that it was addressing the
use of race “in the context of higher education.” Grutter , supra , at 327, 328, 334. The Court in Grutter expressly articulated key limitations on its holding—defining a
specific type of broad-based diversity and noting the unique
context of higher education—but these limitations were largely
disregarded by the lower courts in extending Grutter to
uphold race-based assignments in elementary and secondary schools.
The present cases are not governed by Grutter .

															B

															   Perhaps recognizing that reliance
on Grutter cannot sustain their plans, both school
districts assert additional interests, distinct from the interest
upheld in Grutter , to justify their race-based
assignments. In briefing and argument before this Court, Seattle
contends that its use of race helps to reduce racial concentration
in schools and to ensure that racially concentrated housing
patterns do not prevent nonwhite students from having access to the
most desirable schools. Brief for Respondents in No. 05–908,
at 19. Jefferson County has articulated a similar goal,
phrasing its interest in terms of educating its students “in a
racially integrated environment.” App. in No. 05–915, at
22.[ Footnote 12 ] Each school
district argues that educational and broader 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 at issue in Grutter —it
makes sense to promote that interest directly by relying on race
alone.

															   The parties and their amici dispute whether racial diversity in schools in fact
has a marked impact on test scores and other objective yardsticks
or achieves intangible socialization benefits. The debate is not
one we need to resolve, however, because it is clear that the
racial classifications employed by the districts are not narrowly
tailored to the goal of achieving the educational and social
benefits asserted to flow from racial diversity. In design and
operation, the plans are directed only to racial balance, pure and
simple, an objective this Court has repeatedly condemned as
illegitimate.

															   The plans are tied to each district’s specific
racial demographics, rather than to any pedagogic concept of the
level of diversity needed to obtain the asserted educational
benefits. In Seattle, the district seeks white enrollment of
between 31 and 51 percent (within 10 percent of “the district white
average” of 41 percent), and nonwhite enrollment of between 49 and
69 percent (within 10 percent of “the district minority average” of
59 percent). App. in No. 05–908, at 103a. In Jefferson County, by
contrast, the district seeks black enrollment of no less than 15 or
more than 50 percent, a range designed to be “equally above and
below Black student enrollment systemwide,” McFarland I , 330 F. Supp. 2d, at 842, based on
the objective of achieving at “all schools … an African-American
enrollment equivalent to the average district-wide African-American
enrollment” of 34 percent. App. in No. 05–915, at 81. In Seattle,
then, the benefits of racial diversity require enrollment of at
least 31 percent white students; in Jefferson County, at least 50
percent. There must be at least 15 percent nonwhite students under
Jefferson County’s plan; in Seattle, more than three times that
figure. This comparison makes clear that the racial demographics in
each district—whatever they happen to be—drive the required
“diversity” numbers. The plans here are not tailored to achieving a
degree of diversity necessary to realize the asserted educational
benefits; instead the plans are tailored, in the words of Seattle’s
Manager of Enrollment Planning, Technical Support, and
Demographics, to “the goal established by the school board of
attain-ing a level of diversity within the schools that
approximates the district’s overall demographics.” App. in No.
05–908, at 42a.

															   The districts offer no evidence that the level
of racial diversity necessary to achieve the asserted educational
benefits happens to coincide with the racial demographics of the
respective school districts—or rather the white/nonwhite or
black/“other” balance of the districts, since that is the only
diversity addressed by the plans. Indeed, in its brief Seattle
simply assumes that the educational benefits track the racial
breakdown of the district. 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 the extent to which the educational
goals the plan was designed to foster are likely to be achieved”).
When asked for “a range of percentage that would be diverse,”
however, Seattle’s expert said it was important to have “sufficient
numbers so as to avoid students feeling any kind of specter of
exceptionality.” App. in No. 05–908, at 276a. The district did not
attempt to defend the proposition that anything outside its range
posed the “specter of exceptionality.” Nor did it demonstrate in
any way how the educational and social benefits of racial diversity
or avoidance of racial isolation are more likely to be achieved at
a school that is 50 percent white and 50 percent Asian-American,
which would qualify as diverse under Seattle’s plan, than at a
school that is 30 percent Asian-American, 25 percent
African-American, 25 percent Latino, and 20 percent white, which
under Seattle’s definition 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 a strong effect on the overall
school.” App. in No. 05–915, at 159, 147. The Jefferson County
plan, however, is based on a goal of replicating at each school “an
African-American enrollment equivalent to the average district-wide
African-American enrollment.” Id., at 81. Joshua
McDonald’s requested transfer was denied because his race was
listed as “other” rather than black, and allowing the transfer
would have had an adverse effect on the racial guideline compliance
of Young Elementary, the school he sought to leave. Id., at 21. At the time, however, Young Elementary was 46.8 percent
black. Id. , at 73. The transfer might have had an adverse
effect on the effort to approach district-wide racial
proportionality at Young, but it had nothing to do with preventing
either the black or “other” group from becoming “small” or
“isolated” at Young.

															   In fact, in each case the extreme measure of
relying on race in assignments is unnecessary to achieve the stated
goals, even as defined by the districts. For example, at Franklin
High School in Seattle, the racial tiebreaker was applied because
nonwhite enrollment exceeded 69 percent, and resulted in an
incoming ninth-grade class in 2000–2001 that was 30.3 percent
Asian-American, 21.9 percent African-American, 6.8 percent Latino,
0.5 percent Native-American, and 40.5 percent Caucasian. Without
the racial tiebreaker, the class would have been 39.6 percent
Asian-American, 30.2 percent African-American, 8.3 percent Latino,
1.1 percent Native-American, and 20.8 percent Caucasian. See App.
in No. 05–908, at 308a. When the actual racial breakdown is
considered, enrolling students without regard to their race yields
a substantially diverse student body under any definition of
diversity.[ Footnote 13 ]

															   In Grutter , the number of minority
students the school sought to admit was an undefined “meaningful
number” necessary to achieve a genuinely diverse student body. 539
U. S., at 316, 335–336. Although the matter was the subject of
disagreement on the Court, see id., at 346–347 (Scalia,
J., concurring in part and dissenting in part); id., at
382–383 (Rehnquist, C. J., dissenting); id., at
388–392 (Kennedy, J., dissenting), the majority concluded that the
law school did not count back from its applicant pool to arrive at
the “meaningful number” it regarded as necessary to diversify its
student body. Id., at 335–336. Here the racial balance the
districts seek is a defined range set solely by reference to the
demographics of the respective school districts.

															   This working backward to achieve a particular
type of racial balance, rather than working forward from some
demonstration of the level of diversity that provides the purported
benefits, is a fatal flaw under our existing precedent. We have
many times over reaffirmed that “[r]acial balance is not to be
achieved for its own sake.” Freeman , 503 U. S., at 494.
See also Richmond v. J. A. Croson Co. , 488 U. S. 469 , 507
(1989); Bakke , 438 U. S., at 307 (opinion of Powell, J.)
(“If petitioner’s purpose is to assure within its student body some
specified percentage of a particular group merely because of its
race or ethnic origin, such a preferential purpose must be rejected
… as facially invalid”). Grutter itself reiterated that
“outright racial balancing” is “patently unconstitutional.” 539 U.
S., at 330.

															   Accepting racial balancing as a compelling
state interest would justify the imposition of racial
proportionality throughout American society, contrary to our
repeated recognition that “[a]t the heart of the Constitution’s
guarantee of equal protection lies the simple command that the
Government must treat citizens as individuals, not as simply
components of a racial, religious, sexual or national class.” Miller v. Johnson , 515 U. S. 900 , 911
(1995) (quoting Metro Broadcasting , 497 U. S., at 602
(O’Connor, J., dissenting); internal quotation marks
omitted).[ Footnote 14 ]
Allowing racial balancing as a compelling end in itself would
“effectively assur[e] that race will always be relevant in American
life, and that the ‘ultimate goal’ of ‘eliminating entirely from
governmental decisionmaking such irrelevant factors as a human
being’s race’ will never be achieved.” Croson, supra , at
495 (plurality opinion of O’Connor, J.) (quoting Wygant v. Jackson Bd. of Ed. , 476 U. S. 267 , 320
(1986) (Stevens, J., dissenting), in turn quoting Fullilove, 448 U. S., at 547 (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 to
obtain the appropriate mixture of racial views and then to ensure
that the [program] continues to reflect that mixture.” Metro
Broadcasting , supra , at 614 (O’Connor, J.,
dissenting).

															   The validity of our concern that racial
balancing has “no logical stopping point,” Croson , supra , at 498 (quoting Wygant , supra , at
275 (plurality opinion); internal quotation marks omitted); see
also Grutter, supra , at 343, is demonstrated here by the
degree to which the districts tie their racial guidelines to their
demographics. As the districts’ demographics shift, so too will
their definition of racial diversity. See App. in No. 05–908, at
103a (describing application of racial tiebreaker based on
“ current white percentage” of 41 percent and
“ current minority percentage” of 59 percent (emphasis
added)).

															   The Ninth Circuit below stated that it
“share[d] in the hope” expressed in Grutter that in 25
years racial preferences would no longer be necessary to further
the interest identified in that case. Parents Involved
VII , 426 F. 3d, at 1192. But in Seattle the plans are
defended as necessary to address the consequences of racially
identifiable housing patterns. The sweep of the mandate claimed by
the district is contrary to our rulings that remedying past
societal discrimination does not justify race-conscious government
action. See, e.g., Shaw v. Hunt , 517 U. S. 899 ,
909–910 (1996) (“[A]n effort to alleviate the effects of societal
discrimination is not a compelling interest”); Croson , supra , at 498–499; Wygant , 476 U. S., at 276
(plurality opinion) (“Societal discrimination, without more, is too
amorphous a basis for imposing a racially classified remedy”); id., at 288 (O’Connor, J., concurring in part and
concurring in judgment) (“[A] governmental agency’s interest in
remedying ‘societal’ discrimination, that is, discrimination not
traceable to its own actions, cannot be deemed sufficiently
compelling to pass constitutional muster”).

															   The principle that racial balancing is not
permitted is one of substance, not semantics. Racial balancing is
not transformed from “patently unconstitutional” to a compelling
state interest simply by relabeling it “racial diversity.” While
the school districts use various verbal formulations to describe
the interest they seek to promote—racial diversity, avoidance of
racial isolation, racial integration—they offer no definition of
the interest that suggests it differs from racial balance. See, e.g., App. in No. 05–908, at 257a (“Q. What’s your
understanding of when a school suffers from racial isolation? A. I
don’t have a definition for that”); id., at 228a–229a (“I
don’t think we’ve ever sat down and said, ‘Define racially
concentrated school exactly on point in 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 the
Jefferson County School Board define diversity … ?” “A.
Well, we want to have the schools that make up the percentage of
students of the population”).

															   Jefferson County phrases its interest as
“racial integration,” but integration certainly does not require
the sort of racial proportionality reflected in its plan. Even in
the context of mandatory desegregation, we have stressed that
racial proportionality is not required, see Milliken, 433
U. S., at 280, n. 14 (“[A desegregation] order contemplating the
substantive constitutional right [to a] particular degree of racial
balance or mixing is … infirm as a matter of law” (internal
quotation marks omitted)); Swann v. Charlotte-Mecklenburg Bd. of Ed. , 402 U. S. 1 , 24 (1971) (“The
constitutional command to desegregate schools does not mean that
every school in every community must always reflect the racial
composition of the school system as a whole”), and here Jefferson
County has already been found to have eliminated the vestiges of
its prior segregated school system.

															   The en banc Ninth Circuit declared that “when
a racially diverse school system is the goal (or racial
concentration or isolation is the problem), there is no more
effective means than a consideration of race to achieve the
solution.” Parents Involved VII , supra , at 1191.
For the foregoing reasons, this conclusory argument cannot sustain
the plans. However closely related race-based assignments may be to
achieving racial balance, that itself cannot be the goal, whether
labeled “racial diversity” or anything else. To the extent the
objective is sufficient diversity so that students see fellow
students as individuals rather than solely as members of a racial
group, using means that treat students solely as members of a
racial group is fundamentally at cross-purposes with that end.

															C

															   The districts assert, as they
must, that the way in which they have employed individual racial
classifications is necessary to achieve their stated ends. The
minimal effect these classifications have on student assignments,
however, suggests that other means would be effective. Seattle’s
racial tiebreaker results, in the end, only in shifting a small
number of students between schools. Approximately 307 student
assignments were affected by the racial tiebreaker in 2000–2001;
the district was able to track the enrollment status of 293 of
these students. App. in No. 05–908, at 162a. Of these, 209 were
assigned to a school that was one of their choices, 87 of whom were
assigned to the same school to which they would have been assigned
without the racial tiebreaker. Eighty-four students were assigned
to schools that they did not list as a choice, but 29 of those
students would have been assigned to their respective school
without the racial tiebreaker, and 3 were able to attend one of the
oversubscribed schools due to waitlist and capacity adjustments. Id., at 162a–163a. In over one-third of the assignments
affected by the racial tiebreaker, then, the use of race in the end
made no difference, and the district could identify only 52
students who were ultimately affected adversely by the racial
tiebreaker in that it resulted in assignment to a school they had
not listed as a preference and to which they would not otherwise
have been assigned.

															   As the panel majority in Parents Involved VI concluded:

															“[T]he tiebreaker’s annual effect is thus merely to
shuffle a few handfuls of different minority students between a few
schools—about a dozen additional Latinos into Ballard, a dozen
black students into Nathan Hale, perhaps two dozen Asians into
Roosevelt, and so on. The District has not met its burden of
proving these marginal changes … outweigh the cost of subjecting
hundreds of students to disparate treatment based solely upon the
color of their skin.” 377 F. 3d, at 984–985 (footnote
omitted).

															   Similarly, Jefferson County’s use
of racial classifications has only a minimal effect on the
assignment of students. Elementary school students are assigned to
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 percent of the time—and presumably an even smaller
percentage are denied on the basis of the racial guidelines, given
that other factors may lead 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 3 percent of
assignments. Brief in Opposition in No. 05–915, p. 7,
n. 4; Tr. of Oral Arg. in No. 05–915, at 46. As Jefferson
County explains, “the racial guidelines have minimal impact in this
process, because they ‘mostly influence student assignment in
subtle and indirect ways.’ ” Brief for Respondents in No.
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 school enrollment casts doubt
on the necessity of using racial classifications. In Grutter , the consideration of race was viewed as
indispensable in more than tripling minority representation at the
law school—from 4 to 14.5 percent. See 539 U. S., at 320. Here the
most Jefferson County itself claims is that “because the guidelines
provide a firm definition of the Board’s goal of racially
integrated schools, they ‘provide administrators with the authority
to facilitate, negotiate and collaborate with principals and staff
to maintain schools 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 a binary conception of race is an extreme approach in
light of our precedents and our Nation’s history of using race in
public schools, and requires more than such an amorphous end to
justify it.

															   The districts have also failed to show that
they considered methods other than explicit racial classifications
to achieve their stated goals. Narrow tailoring requires “serious,
good faith consideration of workable race-neutral alternatives,” Grutter, supra , at 339, and yet in Seattle several
alternative assignment plans—many of which would not have used
express racial classifications—were rejected with little 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 it considered alternatives, even though the
district already claims that its goals are 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 (Kennedy, J., concurring in part and concurring
in judgment) (racial classifications permitted only “as a last
resort”).

															IV

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

															   To begin with, Justice Breyer
seeks to justify the plans at issue under our precedents
recognizing the compelling interest in remedying past intentional
discrimination. See post , at 18–24. Not even the school
districts go this far, and for good reason. The distinction between
segregation by state action and racial imbalance caused by other
factors has been central to our jurisprudence in this area for
generations. See, e.g. , Milliken , 433 U. S., at
280, n. 14; Freeman , 503 U. S., at 495–496 (“Where
resegregation is a product not of state action but of private
choices, it does not have constitutional implications”). The
dissent elides this distinction between de jure and de
facto segregation, casually intimates that Seattle’s school
attendance patterns reflect illegal segregation, post , at
5, 18, 23,[ Footnote 15 ] and
fails to credit the judicial determination—under the most rigorous
standard—that Jefferson County had eliminated the vestiges of prior
segregation. The dissent thus alters in fundamental ways not only
the facts presented here but the established law.

															   Justice Breyer’s reliance on McDaniel v. Barresi , 402 U. S. 39 (1971), post , at 23–24, 29–30, highlights how far removed the
discussion in the dissent is from the question actually presented
in these cases. McDaniel concerned a Georgia school system
that had been segregated by law. There was no doubt that the county
had operated a “dual school system,” McDaniel , supra , at 41, and no one questions that the obligation to
disestablish a school system segregated by law can include
race-conscious remedies—whether or not a court had issued an order
to that effect. See supra , at 12. The present cases are
before us, however, because the Seattle school district was never
segregated by law, and the Jefferson County district has been found
to be unitary, having eliminated the vestiges of its prior dual
status. The justification for race-conscious remedies in McDaniel is therefore not applicable here. The dissent’s
persistent refusal to accept this distinction—its insistence on
viewing the racial classifications here as if they were just like
the ones in McDaniel , “devised to overcome a history of
segregated public schools,” post , at 47—explains its
inability to understand why the remedial justification for racial
classifications cannot decide these cases.

															   Justice Breyer’s dissent next relies heavily
on dicta from Swann v. Charlotte-Mecklenburg Bd. of
Ed. , 402 U. S., at 16—far more heavily 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 in No. 05–915, at 31. The dissent acknowledges that the
two-sentence discussion in Swann was pure dicta, post , at 22, but nonetheless asserts that it demonstrates
a “basic principle of constitutional law” that provides
“authoritative legal guidance.” Post , at 22, 30.
Initially, as the Court explained just last Term, “we are not bound
to follow our dicta in a prior case in which the point now at issue
was not fully debated.” Central Va. Community College v. Katz, 546
U. S. 356 , 363 (2006). That is particularly true given that,
when Swann was decided, this Court had not yet confirmed
that strict scrutiny applies to racial classifications like those
before us. See n. 16, infra . There is nothing
“technical” or “theoretical,” post , at 30, about our
approach to such dicta. See, e.g., Cohens v. Virginia , 6 Wheat. 264, 399–400 (1821) (Marshall,
C. J.) (explaining why dicta is not binding).

															   Justice Breyer would not only put such
extraordinary weight on admitted dicta, but relies on the statement
for something it does not remotely say. Swann addresses
only a possible state objective; it says nothing of the permissible means —race conscious or otherwise—that a school district
might employ to achieve that objective. The reason for this
omission is clear enough, since the case did not involve any
voluntary means adopted by a school district. The dissent’s
characterization of Swann as recognizing that “the Equal
Protection Clause permits local school boards to use race-conscious
criteria to achieve positive race-related goals” is—at best—a
dubious inference. Post , at 22. Even if the dicta from Swann were entitled to the weight the dissent would give
it, and no dicta is, it not only did not address the question
presented in Swann , it also does not address the question
presented in these cases—whether the school districts’ use of
racial classifications to achieve their stated goals is
permissible.

															   Further, for all the lower court cases Justice
Breyer cites as evidence of the “prevailing legal assumption”
embodied by Swann , very few are pertinent. Most are not.
For example, the dissent features Tometz v. Board of
Ed., Waukegan City School Dist. No. 61 , 39 Ill. 2d 593,
596–598, 237 N. E. 2d 498, 500–502 (1968), an Illinois
decision, as evidence that “state and federal courts had considered
the matter settled and uncontroversial.” Post , at 25. But Tometz addressed a challenge to a statute requiring
race-consciousness in drawing school attendance boundaries—an issue
well beyond the scope of the question presented in these cases.
Importantly, it considered that issue only under rational-basis
review, 39 Ill. 2d, at 600, 237 N. E. 2d, at 502 (“The test of
any legislative classification essentially is one of
reasonableness”), which even the dissent grudgingly recognizes is
an improper standard for evaluating express racial classifications.
Other cases cited are similarly inapplicable. See, e.g. , Citizens for Better Ed. v. Goose Creek Consol.
Independent School Dist. , 719 S. W. 2d 350, 352–353 (Tex.
App. 1986) (upholding rezoning plan under rational-basis
review).[ Footnote 16 ]

															   Justice Breyer’s dissent next looks for
authority to a footnote in Washington v. Seattle
School Dist. No. 1 , 458 U. S. 457 , 472, n. 15 (1982), post , at 56–57, but there this Court expressly noted that
it was not passing on the propriety of race-conscious
student assignments in the absence of a finding of de jure segregation. Similarly, the citation of Crawford v. Board of Ed. of Los Angeles , 458 U. S. 527 (1982), post , at 24, in which a state referendum prohibiting a
race-based assignment plan was challenged, is inapposite—in Crawford the Court again expressly reserved the question
presented by these cases. 458 U. S. , at 535, n. 11.
Such reservations and preliminary analyses of course did not decide
the merits of this question—as evidenced by the disagreement 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, 64–66, and
accusing us of tacitly overruling that case, see post, at
64–66. The dissent overreads Grutter, however, in
suggesting that it renders pure racial balancing a constitutionally
compelling interest; Grutter itself recognized that using
race simply to achieve racial balance would be “patently
unconstitutional,” 539 U. S. , at 330. The Court was
exceedingly careful in describing the interest furthered in Grutter as “not an interest in simple ethnic diversity”
but rather a “far broader array of qualifications and
characteristics” in which race was but a single element. 539 U. S.,
at 324–325 (internal quotation marks omitted). We take the Grutter Court at its word. We simply do not understand how
Justice Breyer can maintain that classifying every schoolchild as
black or white, and using that classification as a determinative
factor in assigning children to achieve pure racial balance, can be
regarded as “less burdensome, and hence more narrowly tailored”
than the consideration of race in Grutter , post, at 47, when the Court in Grutter stated that “[t]he
importance of … individualized consideration” in the program was
“paramount,” and consideration of race was one factor in a “highly
individualized, holistic review.” 539 U. S., at 337. Certainly if
the constitutionality of the stark use of race in these cases were
as established as the dissent would have it, there would have been
no need for the extensive analysis undertaken in Grutter .
In light of the foregoing, Justice Breyer’s appeal to stare
decisis rings particularly hollow. See post, at
65–66.

															   At the same time it relies on inapplicable
desegregation cases, misstatements of admitted dicta, and other
noncontrolling pronouncements, Justice Breyer’s dissent candidly
dismisses the significance of this Court’s repeated holdings that all racial classifications must be reviewed
under strict scrutiny, see post , at 31–33, 35–36, arguing
that a different standard of review should be applied because the
districts use race for beneficent rather than malicious purposes,
see post , at 31–36.

															   This Court has recently reiterated, however,
that “ ‘ all racial classifications [imposed by
government] … must be analyzed by a reviewing court under strict
scrutiny.’ ” Johnson , 543 U. S., at 505 (quoting Adarand , 515 U. S., at 227; emphasis added by Johnson Court). See also Grutter , supra ,
at 326 (“[G]overnmental action based on race—a group classification
long recognized as in most circumstances irrelevant and therefore
prohibited—should be subjected to detailed judicial inquiry”
(internal quotation marks and emphasis omitted)). Justice Breyer
nonetheless relies on the good intentions and motives of the school
districts, stating that he has found “no case that … repudiated
this constitutional asymmetry between that which seeks to exclude and that which seeks to include members
of minority races.” Post , at 29 (emphasis in original). We
have found many. Our cases clearly reject the argument that motives
affect the strict scrutiny analysis. See Johnson , supra , at 505 (“We have insisted on strict scrutiny in
every context, even for so-called ‘benign’ racial
classifications”); Adarand , 515 U. S., at 227 (rejecting
idea that “ ‘benign’ ” racial classifications may be held
to “different standard”); Croson , 488 U. S., at 500
(“Racial classifications are suspect, and that means that simple
legislative assurances of good intention cannot suffice”).

															   This argument that different rules should
govern racial classifications designed to include rather than
exclude is not new; it has been repeatedly pressed in the past,
see, e.g. , Gratz , 539 U. S., at 282 (Breyer, J.,
concurring in judgment); id. , at 301 (Ginsburg, J.,
dissenting); Adarand , supra , at 243 (Stevens, J.,
dissenting); Wygant , 476 U. S., at 316–317 (Stevens, J.,
dissenting), and has been repeatedly rejected. See also Bakke , 438 U. S., at 289–291 (opinion of Powell, J.)
(rejecting argument that strict scrutiny should be applied only to
classifications that disadvantage minorities, stating “[r]acial and
ethnic distinctions of any sort are inherently suspect and thus
call for the most exacting judicial examination”).

															   The reasons for rejecting a motives test for
racial classifications are clear enough. “The Court’s emphasis on
‘benign racial classifications’ suggests confidence in its ability
to distinguish good from harmful governmental uses of racial
criteria. History should teach greater humility… . ‘[B]enign’
carries with it no independent meaning, but reflects only
acceptance of the current generation’s conclusion that a
politically acceptable burden, imposed on particular citizens on
the basis of race, is reasonable.” Metro Broadcasting , 497
U. S., at 609–610 (O’Connor, J., dissenting). See also Adarand , supra , at 226 (“ ‘[I]t may not
always be clear that a so-called preference is in fact
benign’ ” (quoting Bakke , supra , at 298
(opinion of Powell, J.))). Accepting Justice Breyer’s approach
would “do no more than move us from ‘separate but equal’ to
‘unequal but benign.’ ” Metro Broadcasting , supra , at 638 (Kennedy, J., dissenting).

															   Justice Breyer speaks of bringing “the races”
together (putting aside the purely black-and-white nature of the
plans), as the justification for excluding individuals on the basis
of their race. See post , at 28–29. Again, this approach to
racial classifications is fundamentally at odds with our precedent,
which makes clear that the Equal Protection Clause “protect[s] persons , not groups ,” Adarand , 515 U.
S., at 227 (emphasis in original). See ibid. (“[A]ll
governmental action based on race—a group classification
long recognized as ‘in most circumstances irrelevant and therefore
prohibited,’ Hirabayashi [v. United States , 320 U. S. 81 , 100
(1943)]—should be subjected to detailed judicial inquiry to ensure
that the personal right to equal protection of the laws
has not been infringed” (first emphasis in original); Metro
Broadcasting , supra , at 636 (“[O]ur Constitution
protects each citizen as an individual, not as a member of a group”
(Kennedy, J., dissenting)); Bakke , supra , at 289
(opinion of Powell, J.) (Fourteenth Amendment creates rights
“guaranteed to the individual. The rights established are personal
rights”). This fundamental principle goes back, in this context, to Brown itself. See Brown v. Board of
Education , 349
U. S. 294 , 300 (1955) ( Brown II ) (“At stake is the personal interest of the plaintiffs in admission to public
schools … on a nondiscriminatory basis” (emphasis added)). For the
dissent, in contrast, “ ‘individualized scrutiny’ is simply
beside the point.” Post , at 55.

															   Justice Breyer’s position comes down to a
familiar claim: The end justifies the means. He admits that “there
is a cost in applying ‘a state-mandated racial label,’ ” post , at 67, but he is confident that the cost is worth
paying. Our established strict scrutiny test for racial
classifications, however, insists on “detailed examination, both as
to ends and as to means.” Adarand , supra , at 236 (emphasis added). Simply because the school
districts may seek a worthy goal does not mean they are free to
discriminate on the basis of race to achieve it, or that their
racial classifications should be subject to less exacting
scrutiny.

															   Despite his argument that these cases should
be evaluated under a “standard of review that is not ‘strict’ in
the 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 of narrow tailoring is quite unlike anything found in our
precedents. Without any detailed discussion of the operation of the
plans, the students who are affected, or the districts’ failure to
consider race-neutral alternatives, the dissent concludes that the
districts have shown that these racial classifications are
necessary to achieve the districts’ stated goals. This conclusion
is divorced from any evaluation of the actual impact of the plans
at issue in these cases—other than to note that the plans “often
have no effect.” Post , at 46.[ Footnote 17 ] Instead, the dissent suggests that some
combination of the development of these plans over time, the
difficulty of the endeavor, and the good faith of the districts
suffices to demonstrate that these stark and controlling racial
classifications are constitutional. The Constitution and our
precedents require more.

															   In keeping with his view that strict scrutiny
should not apply, Justice Breyer repeatedly urges deference to
local school boards on these issues. See, e.g. , post , at 21, 48–49, 66. Such deference “is fundamentally
at odds with our equal protection jurisprudence. We put the burden
on state actors to demonstrate that their race-based policies are
justified.” Johnson , 543 U. S., at 506, n. 1. See Croson , 488 U. S., at 501 (“The history of racial
classifications in this country suggests that blind judicial
deference to legislative or executive pronouncements of necessity
has no place in equal protection analysis”); West Virginia Bd.
of Ed. v. Barnette , 319 U. S. 624 , 637
(1943) (“The Fourteenth Amendment … protects the citizen against
the State itself and all of its creatures—Boards of Education not
excepted”).

															   Justice Breyer’s dissent ends on an
unjustified note of alarm. It predicts that today’s decision
“threaten[s]” the validity of “[h]undreds of state and federal
statutes and regulations.” Post , at 61; see also post , at 27–28. But the examples the dissent mentions—for
example, a provision of the No Child Left Behind Act that requires
States to set measurable objectives to track the achievement of
students from major racial and ethnic groups, 20 U. S. C.
§6311(b)(2)(C)(v)—have nothing to do with the pertinent issues in
these cases.

															   Justice Breyer also suggests that other means
for achieving greater racial diversity in schools are necessarily
unconstitutional if the racial classifications at issue in these
cases cannot survive strict scrutiny. Post , at 58–62.
These other means— e.g. , where to construct new schools,
how to allocate resources among schools, and which academic
offerings to provide to attract students to certain
schools—implicate different considerations than the explicit racial
classifications at issue in these cases, and we express no opinion
on their validity—not even in dicta. Rather, we employ the familiar
and well-established analytic approach of strict scrutiny to
evaluate the plans at issue today, an approach that in no way
warrants the dissent’s cataclysmic concerns. Under that approach,
the school districts have not carried their burden of showing that
the ends they seek justify the particular extreme means they have
chosen—classifying individual students on the basis of their race
and discriminating among them on that basis.

															*  *  *

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

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

															   The parties and their amici debate
which side is more faithful to the heritage of Brown , but
the position of the plaintiffs in Brown was spelled out in
their brief and could not have been clearer: “[T]he Fourteenth
Amendment prevents states from according differential treatment to
American children on the basis of their color or race.” Brief for
Appellants in Nos. 1, 2, and 4 and for Respondents in No. 10 on
Reargument in Brown I , O. T. 1953, p. 15
(Summary of Argument). What do the racial classifications at issue
here do, if not accord differential treatment on the basis of race?
As counsel who appeared before this Court for the plaintiffs in Brown put it: “We have one fundamental contention which we
will seek to develop in the course of this argument, and that
contention is that no State has any authority under the
equal-protection clause of the Fourteenth Amendment to use race as
a factor in affording educational opportunities among its
citizens.” Tr. of Oral Arg. in Brown I , p. 7 (Robert L.
Carter, Dec. 9, 1952). There is no ambiguity in that statement. And
it was that position that prevailed in this Court, which emphasized
in its remedial opinion that what was “[a]t stake is the personal
interest of the plaintiffs in admission to public schools as soon
as practicable on a nondiscriminatory basis ,” and what was
required was “determining admission to the public schools on a nonracial basis .” Brown II , supra , at 300–301 (emphasis added). What do the racial
classifications do in these cases, if not determine admission to a
public school on a racial basis?   Before Brown , schoolchildren were told where they could and could
not go to school based on the color of their skin. The school
districts in these cases have not carried the heavy burden of
demonstrating that we should allow this once again—even for very
different reasons. For schools that never segregated on the basis
of race, such as Seattle, or that have removed the vestiges of past
segregation, such as Jefferson County, the way “to achieve a system
of determining admission to the public schools on a nonracial
basis,” Brown II , 349 U. S., at 300–301, is to stop
assigning students on a racial basis. The way to stop
discrimination on the basis of race is to stop discriminating on
the basis of race.

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

															It is so ordered. Footnote 1 The plan was in effect from 1999–2002, for
three school years. This litigation was commenced in July 2000, and
the record in the District Court was closed before assignments for
the 2001–2002 school year were made. See Brief for 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 426 F. 3d 1162, 1169–1171 (CA9 2005) (en banc)
( Parents Involved VII ). Footnote 2 The racial breakdown of this nonwhite group
is approximately 23.8 percent Asian-American, 23.1 percent
African-American, 10.3 percent Latino, and 2.8 percent
Native-American. See 377 F. 3d 949, 1005–1006 (CA9 2004)
( Parents Involved VI ) (Graber, J., dissenting). Footnote 3 For the 2001–2002 school year, the deviation
permitted from the desired racial 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 percent band, see n. 1, supra . Footnote 4 “No State shall … deny to any person within
its jurisdiction the equal protection of the laws.” U. S. Const.,
Amdt. 14, §1. Footnote 5 “No person in the United States shall, on the
ground of race … be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal
financial assistance.” 78 Stat. 252, 42 U. S. C. §2000d. Footnote 6 “The state shall not discriminate against, or
grant preferential treatment to, any individual or group on the
basis of race, sex, color, ethnicity, or national origin in the
operation of public employment, public education, or public
contracting.” Wash. Rev. Code §49.60.400(1) (2006). Footnote 7 Middle and high school students are
designated a single resides school and assigned 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 school
level, take advantage of an open enrollment plan that allows
ninth-grade students to apply for admission to any nonmagnet high
school. App. in No. 05–915, pp. 39–41, 82–83. Footnote 8 It is not clear why the racial guidelines
were even applied to Joshua’s transfer application—the guidelines
supposedly do not apply at the kindergarten level. Id., at
43. Neither party disputes, however, that Joshua’s transfer
application was denied under the racial guidelines, and Meredith’s
objection is not that the guidelines were misapplied but rather
that race was used at all. Footnote 9 Meredith joined a pending lawsuit filed by
several other plaintiffs. See id., at 7–11. The other
plaintiffs all challenged assignments to certain specialized
schools, and the District Court found these assignments, which are
no longer at issue in this case, unconstitutional. McFarland I , 330 F. Supp. 2d 834, 837, 864
(WD Ky. 2004). Footnote 10 The districts point to dicta in a prior
opinion in which the Court suggested that, while not
constitutionally mandated, it would be constitutionally permissible
for a school district to seek racially balanced schools as a matter
of “educational policy.” See Swann v. Charlotte-Mecklenburg Bd. of Ed. , 402 U. S. 1 , 16 (1971). The districts
also quote with approval an in-chambers opinion in which
then-Justice Rehnquist made a suggestion to the same effect. See Bustop, Inc. v. Los Angeles Bd. of Ed. , 439 U. S. 1380 , 1383
(1978). The citations do not carry the significance the districts
would ascribe to them. Swann , evaluating a school district
engaged in court-ordered desegregation, had no occasion to consider
whether a district’s voluntary adoption of race-based assignments
in the absence of a finding of prior de jure segregation
was constitutionally permissible, an issue that was again expressly
reserved in Washington v. Seattle School Dist. No.
1 , 458 U. S. 457 , 472, n. 15 (1982). Bustop , addressing in the context of an emergency
injunction application a busing plan imposed by the Superior Court
of Los Angeles County, is similarly unavailing. Then-Justice
Rehnquist, in denying emergency relief, stressed that “equitable
consideration[s]” counseled against preliminary relief. 439 U. S.,
at 1383. The propriety of preliminary relief and resolution of the
merits are of course “significantly different” issues. University of Texas v. Camenisch , 451 U. S. 390 , 393
(1981). Footnote 11 The way Seattle classifies its students bears
this out. Upon enrolling their child with the district, parents are
required to identify their child as a member of a particular racial
group. If a parent identifies more than one race on the form,
“[t]he application will not be accepted and, if necessary, the
enrollment service person taking the application will indicate one
box.” App. in No. 05–908, at 303a. Footnote 12 Jefferson County also argues that it
would be incongruous to hold that what was constitutionally
required of it one day—race-based assignments pursuant to the
desegregation decree—can be constitutionally prohibited the next.
But what was constitutionally required of the district prior to
2000 was the elimination of the vestiges of prior segregation—not
racial proportionality in its own right. See Freeman v. Pitts , 503 U. S. 467 , 494–496 (1992). Once
those vestiges were eliminated, Jefferson County was on the same
footing as any other school district, and its use of race must be
justified on other grounds. Footnote 13 Data for the Seattle schools in the several years
since this litigation was commenced further demonstrate the minimal
role that the racial tiebreaker in fact played. At Ballard, in
2005–2006—when no class at the school was subject to the racial
tiebreaker—the student body was 14.2 percent Asian-American, 9
percent African-American, 11.7 percent Latino, 62.3 percent
Caucasian, 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’s total enrollment was 17.5
percent Asian-American, 10.8 percent African-American, 10.7 percent
Latino, 56.4 percent Caucasian, and 4.6 percent Native-American.
App. in No. 05–908, at 283a. Franklin in 2005–2006 was 48.9 percent
Asian-American, 33.5 percent African-American, 6.6 percent Latino,
10.2 percent Caucasian, and 0.8 percent Native-American. Reply
Brief for Petitioner in No. 05–908, at 7. With the racial
tiebreaker in 2000–2001, total enrollment was 36.8 percent
Asian-American, 32.2 percent African-American, 5.2 percent Latino,
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
percent Asian-American, 10.7 percent African-American, 8 percent
Latino, 61.5 percent Caucasian, 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 percent Asian-American, 13.3
percent African-American, 7 percent Latino, 58.4 percent Caucasian,
and 3.4 percent Native-American. App. in No. 05–908, at 286a. Footnote 14 In contrast, Seattle’s website formerly
described “emphasizing individualism as opposed to a more
collective ideology” as a form of “cultural racism,” and currently
states that the district has no intention “to hold onto
unsuccessful concepts such as [a] … colorblind mentality.” Harrell,
School Web Site Removed: Examples of Racism Sparked Controversy,
Seattle Post-Intelligencer, June 2, 2006, pp. B1, B5. Compare Plessy v. Ferguson , 163 U. S. 537 , 559
(1896) (Harlan, J., dissenting) (“Our Constitution is color-blind,
and neither knows nor tolerates classes among citizens. In respect
of civil rights, all citizens are equal before the law”). Footnote 15 Justice Breyer makes much of the fact that in
1978 Seattle “settled” an NAACP complaint alleging illegal
segregation with the federal Office for Civil Rights (OCR). See post , at 5, 8–9, 18, 23. The memorandum of agreement
between Seattle and OCR, of course, contains no admission by
Seattle that such segregation ever existed or was ongoing at the
time of the agreement, and simply reflects a “desire to avoid the
incovenience [ sic ] and expense of a formal OCR
investigation,” which OCR was obligated under law to initiate upon
the filing of such a complaint. Memorandum of Agreement between
Seattle School District No. 1 of King County, Washington, and the
Office for Civil Rights, United States Department of Health,
Education, and Welfare 2 (June 9, 1978); see also 45 CFR §80.7(c)
(2006). Footnote 16 In fact, all the cases Justice Breyer’s
dissent cites as evidence of the “prevailing legal assumption,” see post , at 25–27, were decided before this Court
definitively determined that “all racial classifications … must be
analyzed by a reviewing court under strict scrutiny.” Adarand
Constructors, Inc. v. Peńa , 515 U. S. 200 , 227 (1995). Many
proceeded under the now-rejected view that classifications seeking
to benefit a disadvantaged racial group should be held to a lesser
standard of review. See, e.g. , Springfield School
Comm. v. Barksdale , 348 F. 2d 261, 266 (CA1
1965). Even if this purported distinction, which Justice Stevens
would adopt, post , at 2, n. 3 (dissenting opinion),
had not been already rejected by this Court, the distinction has no
relevance to these cases, in which students of all races are
excluded from the schools they wish to attend based solely on the
racial classifications. See, e.g. , App. in No. 05–908, at
202a (noting that 89 nonwhite students were denied assignment to a
particular school by operation of Seattle’s racial tiebreaker).

															Justice Stevens’s reliance on School Comm. of Boston v. Board of Ed., 352 Mass. 693, 227 N. E. 2d 729 (1967),
appeal dism’d, 389
U. S. 572 (1968) (per curiam) , post , at 3–5,
is inapposite for the same reason that many of the cases cited by
Justice Breyer are inapposite; the case involved a Massachusetts
law that required school districts to avoid racial imbalance in
schools but did not specify how to achieve this goal—and certainly
did not require express racial classifications as the means to do
so. The law was upheld under rational-basis review, with the state
court explicitly rejecting the suggestion—which is now plainly the
law—that “racial group classifications bear a far heavier burden of
justification.” 352 Mass., at 700, 227 N. E. 2d, at 734
(internal quotation marks and citation omitted). The passage
Justice Stevens quotes proves our point; all the quoted language
says is that the school committee “shall prepare a plan to
eliminate the imbalance.” Id., at 695, 227 N. E. 2d,
at 731; see post , at 4, n. 5. Nothing in the opinion
approves use of racial classifications as the means to address the
imbalance. The suggestion that our decision today is somehow
inconsistent with our disposition of that appeal is belied by the
fact that neither the lower courts, the respondent school
districts, nor any of their 51 amici saw fit even to cite
the case. We raise this fact not to argue that the dismissal should
be afforded any different stare decisis effect, but rather
simply to suggest that perhaps—for the reasons noted above—the
dismissal does not mean what Justice Stevens believes it does. Footnote 17 Justice Breyer also tries to downplay the
impact of the racial assignments by stating that in Seattle
“students can decide voluntarily to transfer to a preferred
district high school (without any consideration of race-conscious
criteria).” Post , at 46. This presumably refers to the
district’s decision to cease, for 2001–2002 school year
assignments, applying the racial tiebreaker to students seeking to
transfer to a different school after ninth grade. See App. in No.
05–908, at 137a–139a. There are obvious disincentives for students
to transfer to a different school after a full quarter of their
high school experience has passed, and the record sheds no light on
how transfers to the oversubscribed high schools are handled. OPINION OF KENNEDY, J. PARENTS INVOLVED IN COMMUNITY SCHOOLS V.SEATTLE SCHOOL DIST. NO.
1 551 U. S. ____ (2007) SUPREME COURT OF THE UNITED STATES NOS. 05-908 AND 05-915 PARENTS INVOLVED IN COMMUNITY SCHOOLS,
PETITIONER

															05–908 v. SEATTLE SCHOOL DISTRICT NO. 1
et al. on writ of certiorari to the united states
court of appeals for the ninth circuit CRYSTAL D. MEREDITH, custodial parent and next
friend of JOSHUA RYAN McDONALD, PETITIONER

															05–915 v. JEFFERSON COUNTY BOARD OF EDUCATION
et al. on writ of certiorari to the united states
court of appeals for the sixth circuit [June 28, 2007] Justice Kennedy ,
concurring in part and concurring in the judgment.

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

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

															I

															   The opinion of the Court and
Justice Breyer’s dissenting opinion (hereinafter dissent) describe
in detail the history of integration efforts in Louisville and
Seattle. These plans classify individuals by race and allocate
benefits and burdens on that basis; and as a result, they are to be
subjected to strict scrutiny. See Johnson v. California , 543 U. S. 499 , 505–506
(2005); ante , at 11. The dissent finds that the school
districts have identified a compelling interest in increasing
diversity, including for the purpose of avoiding racial isolation.
See post , at 37–45. The plurality, by contrast, does not
acknowledge that the school districts have identified a compelling
interest here. See ante , at 17–25. For this reason, among
others, I do not join Parts III–B and IV. Diversity, depending on
its meaning and definition, is a compelling educational goal a
school district may pursue.

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

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

															   The discrepancy identified is not some simple
and straightforward error that touches only upon the peripheries of
the district’s use of individual racial classifications. To the
contrary, Jefferson County in its briefing has explained how and
when it employs these classifications only in terms so broad and
imprecise that they cannot withstand strict scrutiny. See, e.g ., Brief for Respondents in No. 05–915, at 4–10. While
it acknowledges that racial classifications are used to make
certain assignment decisions, it fails to make clear, for example,
who makes the decisions; what if any oversight is employed; the
precise circumstances in which an assignment decision will or will
not be made on the basis of race; or how it is determined which of
two similarly situated children will be subjected to a given
race-based decision. See ibid . ; see also App. in
No. 05–915, at 38, 42 (indicating that decisions are “based on …
the racial guidelines” without further explanation); id .,
at 81 (setting forth the blanket mandate that “[s]chools shall work
cooperatively with each other and with central office to ensure
that enrollment at all schools [in question] is within the racial
guidelines annually and to encourage that the enrollment at all
schools progresses toward the midpoint of the guidelines”); id ., at 43, 76–77, 81–83; McFarland v. Jefferson Cty. Public Schools , 330 F. Supp. 2d 834,
837–845, 855–862 (WD Ky. 2004). When litigation, as here, involves
a “complex, comprehensive plan that contains multiple strategies
for achieving racially integrated schools,” Brief for Respondents
in No. 05–915, at 4, these ambiguities become all the more
problematic in light of the contradictions and confusions that
result. Compare, e.g ., App. in No. 05–915, at 37 (“Each
[Jefferson County] school … has a designated geographic attendance
area, which is called the ‘resides area’ of the school[, and each]
such school is the ‘resides school’ for those students whose
parent’s or guardian’s residence address is within the school’s
geographic attendance area”); id ., at 82 (“All elementary
students … shall be assigned to the school which serves the area in
which they reside”); and Brief for Respondents in No. 05–915, at 5
(“There are no selection criteria for admission to [an elementary
school student’s] resides school, except attainment of the
appropriate age and completion of the previous grade”), with App.
in No. 05–915, at 38 (“Decisions to assign students to schools
within each cluster are based on available space within the
[elementary] schools and the racial guidelines in the District’s
current student assignment plan”); id ., at 82
(acknowledging that a student may not be assigned to his or her
resides school if it “has reached … the extremes of the racial
guidelines”). One can attempt to identify a
construction of Jefferson County’s student assignment plan that, at
least as a logical matter, complies with these competing
propositions; but this does not remedy the underlying problem.
Jefferson County fails to make clear to this Court—even in the
limited respects implicated by Joshua’s initial assignment and
transfer denial—whether in fact it relies on racial classifications
in a manner narrowly tailored to the interest in question, rather
than in the far-reaching, inconsistent, and ad hoc manner that a less forgiving reading of the record would suggest.
When a court subjects governmental action to strict scrutiny, it
cannot construe ambiguities in favor of the State. As for the Seattle case, the
school district has gone further in describing the methods and
criteria used to determine assignment decisions on the basis of
individual racial classifications. See, e.g ., Brief for
Respondents in No. 05–908, p. 5–11. The district, nevertheless, has
failed to make an adequate showing in at least one respect. It has
failed to explain why, in a district composed of a diversity of
races, with fewer than half of the students classified as “white,”
it has employed the crude racial categories of “white” and
“non-white” as the basis for its assignment decisions. See, e.g., id ., at 1–11. The district has identified its
purposes as follows: “(1) to promote the educational benefits of
diverse school enrollments; (2) to reduce the potentially harmful
effects of racial isolation by allowing students the opportunity to
opt out of racially isolated schools; and (3) to make sure that
racially segregated housing patterns did not prevent non-white
students from having equitable access to the most popular
over-subscribed schools.” Id ., at 19. Yet the school
district does not explain how, in the context of its diverse
student population, a blunt distinction between “white” and
“non-white” furthers these goals. As the Court explains, “a school
with 50 percent Asian-American students and 50 percent white
students but no African-American, Native-American, or Latino
students would qualify as balanced, while a school with 30 percent
Asian-American, 25 percent African-American, 25 percent Latino, and
20 percent white students would not.” Ante , at 15–16; see
also Brief for United States as Amicus Curiae in No.
05–908, pp. 13–14. Far from being narrowly tailored to its
purposes, this system threatens to defeat its own ends, and the
school district has provided no convincing explanation for its
design. Other problems are evident in Seattle’s system, but there
is no need to address them now. As the district fails to account
for the classification system it has chosen, despite what appears
to be its ill fit, Seattle has not shown its plan to be narrowly
tailored to achieve its own ends; and thus it fails to pass strict
scrutiny. II Our Nation from the
inception has sought to preserve and expand the promise of liberty
and equality on which it was founded. Today we enjoy a society that
is remarkable in its openness and opportunity. Yet our tradition is
to go beyond present achievements, however significant, and to
recognize and confront the flaws and injustices that remain. This
is especially true when we seek assurance that opportunity is not
denied on account of race. The enduring hope is that race should
not matter; the reality is that too often it does. This is by way of
preface to my respectful submission that parts of the opinion by
The Chief Justice imply an all-too-unyielding insistence that race
cannot be a factor in instances when, in my view, it may be taken
into account. The plurality opinion is too dismissive of the
legitimate interest government has in ensuring all people have
equal opportunity regardless of their race. The plurality’s
postulate that “[t]he way to stop discrimination on the basis of
race is to stop discriminating on the basis of race,” ante , at 40–41, is not sufficient to decide these cases.
Fifty years of experience since Brown v. Board of
Education, 347
U. S. 483 (1954), should teach us that the problem before us
defies so easy a solution. School districts can seek to reach Brown ’s objective of equal educational opportunity. The
plurality opinion is at least open to the interpretation that the
Constitution requires school districts to ignore the problem of de facto resegregation in schooling. I cannot endorse that
conclusion. To the extent the plurality opinion suggests the
Constitution mandates that state and local school authorities must
accept the status quo of racial isolation in schools, it is, in my
view, profoundly mistaken. The statement by Justice Harlan
that “[o]ur Constitution is color-blind” was most certainly
justified in the context of his dissent in Plessy v. Ferguson , 163 U. S. 537 , 559
(1896). The Court’s decision in that case was a grievous error it
took far too long to overrule. Plessy , of course,
concerned official classification by race applicable to all persons
who sought to use railway carriages. And, as an aspiration, Justice
Harlan’s axiom must command our assent. In the real world, it is
regrettable to say, it cannot be a universal constitutional
principle. In the administration of public
schools by the state and local authorities it is permissible to
consider the racial makeup of schools and to adopt general policies
to encourage a diverse student body, one aspect of which is its
racial composition. Cf. Grutter v. Bollinger , 539 U. S. 306 (2003); id. , at
387–388 (Kennedy, J., dissenting). If school authorities are
concerned that the student-body compositions of certain schools
interfere with the objective of offering an equal educational
opportunity to all of their students, they are free to devise
race-conscious measures to address the problem in a general way and
without treating each student in different fashion solely on the
basis of a systematic, individual typing by race. School boards may pursue the goal
of bringing together students of diverse backgrounds and races
through other means, including strategic site selection of new
schools; drawing attendance zones with general recognition of the
demographics of neighborhoods; allocating resources for special
programs; recruiting students and faculty in a targeted fashion;
and tracking enrollments, performance, and other statistics by
race. These mechanisms are race conscious but do not lead to
different treatment based on a classification that tells each
student he or she is to be defined by race, so it is unlikely any
of them would demand strict scrutiny to be found permissible. See Bush v. Vera , 517 U. S. 952 , 958
(1996) (plurality opinion) (“Strict scrutiny does not apply merely
because redistricting is performed with consciousness of
race… . Electoral district lines are ‘facially race neutral’
so a more searching inquiry is necessary before strict scrutiny can
be found applicable in redistricting cases than in cases of
‘classifications based explicitly on race’ ” (quoting Adarand , 515 U. S., at 213)). Executive and legislative
branches, which for generations now have considered these types of
policies and procedures, should be permitted to employ them with
candor and with confidence that a constitutional violation does not
occur whenever a decisionmaker considers the impact a given
approach might have on students of different races. Assigning to
each student a personal designation according to a crude system of
individual racial classifications is quite a different matter; and
the legal analysis changes accordingly. Each respondent has asserted that
its assignment of individual students by race is permissible
because there is no other way to avoid racial isolation in the
school districts. Yet, as explained, each has failed to provide the
support necessary for that proposition. Cf. Croson , 488 U.
S., at 501 (“The history of racial classifications in this country
suggests that blind judicial deference to legislative or executive
pronouncements of necessity has no place in equal protection
analysis”). And individual racial classifications employed in this
manner may be considered legitimate only if they are a last resort
to achieve a compelling interest. See id. , at 519
(Kennedy, J., concurring in part and concurring in
judgment). In the cases before us it is
noteworthy that the number of students whose assignment depends on
express racial classifications is limited. I join Part III–C of the
Court’s opinion because I agree that in the context of these plans,
the small number of assignments affected suggests that the schools
could have achieved their stated ends through different means.
These include the facially race-neutral means set forth above or,
if necessary, a more nuanced, individual evaluation of school needs
and student characteristics that might include race as a component.
The latter approach would be informed by Grutter , though
of course the criteria relevant to student placement would differ
based on the age of the students, the needs of the parents, and the
role of the schools. III The dissent rests on
the assumptions that these sweeping race-based classifications of
persons are permitted by existing precedents; that its confident
endorsement of race categories for each child in a large segment of
the community presents no danger to individual freedom in other,
prospective realms of governmental regulation; and that the racial
classifications used here cause no hurt or anger of the type the
Constitution prevents. Each of these premises is, in my respectful
view, incorrect. A The dissent’s
reliance on this Court’s precedents to justify the explicit,
sweeping, classwide racial classifications at issue here is a
misreading of our authorities that, it appears to me, tends to
undermine well-accepted principles needed to guard our freedom. And
in his critique of that analysis, I am in many respects in
agreement with The Chief Justice. The conclusions he has set forth
in Part III–A of the Court’s opinion are correct, in my view,
because the compelling interests implicated in the cases before us
are distinct from the interests the Court has recognized in
remedying the effects of past intentional discrimination and in
increasing diversity in higher education. See ante , at
12–13. As the Court notes, we recognized the compelling nature of
the interest in remedying past intentional discrimination in Freeman v. Pitts , 503 U. S. 467 , 494
(1992), and of the interest in diversity in higher education in Grutter . At the same time, these compelling interests, in
my view, do help inform the present inquiry. And to the extent the
plurality opinion can be interpreted to foreclose consideration of
these interests, I disagree with that reasoning. As to the dissent, the general
conclusions upon which it relies have no principled limit and would
result in the broad acceptance of governmental racial
classifications in areas far afield from schooling. The dissent’s
permissive strict scrutiny (which bears more than a passing
resemblance to rational-basis review) could invite widespread
governmental deployment of racial classifications. There is every
reason to think that, if the dissent’s rationale were accepted,
Congress, assuming an otherwise proper exercise of its spending
authority or commerce power, could mandate either the Seattle or
the Jefferson County plans nationwide. There seems to be no
principled rule, moreover, to limit the dissent’s rationale to the
context of public schools. The dissent emphasizes local control,
see post , at 48–49, the unique history of school
desegregation, see post , at 2, and the fact that these
plans make less use of race than prior plans, see post , at
57, but these factors seem more rhetorical than integral to the
analytical structure of the opinion. This brings us to the
dissent’s reliance on the Court’s opinions in Gratz v. Bollinger , 539 U. S. 244 (2003),
and Grutter , 539 U. S. 306 . If today’s
dissent said it was adhering to the views expressed in the separate
opinions in Gratz and Grutter , see Gratz , 539 U. S., at 281 (Breyer, J., concurring in
judgment); id., at 282 (Stevens, J., dissenting); id., at 291 (Souter, J., dissenting); id., at 298
(Ginsburg, J., dissenting); Grutter , supra , at
344 (Ginsburg, J., concurring), that would be understandable, and
likely within the tradition—to be invoked, in my view, in rare
instances—that permits us to maintain our own positions in the face
of stare decisis when fundamental points of doctrine are
at stake. See, e.g., Federal Maritime Comm’n v. South Carolina Ports Authority , 535 U. S. 743 , 770
(2002) (Stevens, J., dissenting). To say, however, that we must
ratify the racial classifications here at issue based on the
majority opinions in Gratz and Grutter is, with
all respect, simply baffling. Gratz involved a system
where race was not the entire classification. The procedures in Gratz placed much less reliance on race than do the plans
at issue here. The issue in Gratz arose, moreover, in the
context of college admissions where students had other choices and
precedent supported the proposition that First Amendment interests
give universities particular latitude in defining diversity. See Regents of Univ. of Cal. v. Bakke , 438 U. S. 265 , 312–314 (1978) (opinion
of Powell, J.). Even so the race factor was found to be invalid. Gratz , supra , at 251. If Gratz is to be
the measure, the racial classification systems here are a
fortiori invalid. If the dissent were to say that college
cases are simply not applicable to public school systems in
kindergarten through high school, this would seem to me wrong, but
at least an arguable distinction. Under no fair reading, though,
can the majority opinion in Gratz be cited as authority to
sustain the racial classifications under consideration
here. The same must be said for the
controlling opinion in Grutter . There the Court sustained
a system that, it found, was flexible enough to take into account
“all pertinent elements of diversity,” 539 U. S., at 341 (internal
quotation marks omitted), and considered race as only one factor
among many, id ., at 340. Seattle’s plan, by contrast,
relies upon a mechanical formula that has denied hundreds of
students their preferred schools on the basis of three rigid
criteria: placement of siblings, distance from schools, and race.
If those students were considered for a whole range of their
talents and school needs with race as just one consideration, Grutter would have some application. That, though, is not
the case. The only support today’s dissent can draw from Grutter must be found in its various separate opinions,
not in the opinion filed for the Court. B To uphold these
programs the Court is asked to brush aside two concepts of central
importance for determining the validity of laws and decrees
designed to alleviate the hurt and adverse consequences resulting
from race discrimination. The first is the difference between de jure and de facto segregation; the second, the
presumptive invalidity of a State’s use of racial classifications
to differentiate its treatment of individuals. In the immediate aftermath of Brown the Court addressed other instances where laws and
practices enforced de jure segregation. See, e.g., Loving v. Virginia , 388 U. S. 1 (1967)
(marriage); New Orleans City Park Improvement Assn. v. Detiege , 358
U. S. 54 (1958) (per curiam) (public parks); Gayle v. Browder , 352 U. S. 903 (1956) (per curiam) (buses); Holmes v. Atlanta , 350 U. S. 879 (1955) (per curiam) (golf courses); Mayor of
Baltimore v. Dawson , 350 U. S. 877 (1955) (per curiam) (beaches). But with reference to schools, the
effect of the legal wrong proved most difficult to correct. To
remedy the wrong, school districts that had been segregated by law
had no choice, whether under court supervision or pursuant to
voluntary desegregation efforts, but to resort to extraordinary
measures including individual student and teacher assignment to
schools based on race. See, e.g., Swann v. Charlotte-Mecklenburg Bd. of Ed. , 402 U. S. 1 , 8–10 (1971);
see also Croson , 488 U. S., at 519 (Kennedy, J.,
concurring in part and concurring in judgment) (noting that racial
classifications “may be the only adequate remedy after a judicial
determination that a State or its instrumentality has violated the
Equal Protection Clause”). So it was, as the dissent observes, see post , at 13–14, that Louisville classified children by
race in its school assignment and busing plan in the
1970’s. Our cases recognized
a fundamental difference between those school districts that had
engaged in de jure segregation and those whose segregation
was the result of other factors. School districts that had engaged
in de jure segregation had an affirmative constitutional
duty to desegregate; those that were de facto segregated
did not. Compare Green v. School Bd. of New Kent
Cty. , 391 U. S.
430 , 437–438 (1968), with Milliken v. Bradley , 418 U. S. 717 , 745
(1974). The distinctions between de jure and de
facto segregation extended to the remedies available to
governmental units in addition to the courts. For example, in Wygant v. Jackson Bd. of Ed. , 476 U. S. 267 , 274
(1986), the plurality noted: “This Court never has held that
societal discrimination alone is sufficient to justify a racial
classification. Rather, the Court has insisted upon some showing of
prior discrimination by the governmental unit involved before
allowing limited use of racial classifications in order to remedy
such discrimination.” The Court’s decision in Croson,
supra , reinforced the difference between the remedies
available to redress de facto and de jure discrimination: “To accept [a] claim that past societal
discrimination alone can serve as the basis for rigid racial
preferences would be to open the door to competing claims for
‘remedial relief’ for every disadvantaged group. The dream of a
Nation of equal citizens in a society where race is irrelevant to
personal opportunity and achievement would be lost in a mosaic of
shifting preferences based on inherently unmeasurable claims of
past wrongs.” Id. , at 505–506. From the standpoint
of the victim, it is true, an injury stemming from racial prejudice
can hurt as much when the demeaning treatment based on race
identity stems from bias masked deep within the social order as
when it is imposed by law. The distinction between government and
private action, furthermore, can be amorphous both as a historical
matter and as a matter of present-day finding of fact. Laws arise
from a culture and vice versa. Neither can assign to the other all
responsibility for persisting injustices. Yet, like so many other legal
categories that can overlap in some instances, the constitutional
distinction between de jure and de facto segregation has been thought to be an important one. It must be
conceded its primary function in school cases was to delimit the
powers of the Judiciary in the fashioning of remedies. See, e.g., Milliken, supra, at 746. The distinction
ought not to be altogether disregarded, however, when we come to
that most sensitive of all racial issues, an attempt by the
government to treat whole classes of persons differently based on
the government’s systematic classification of each individual by
race. There, too, the distinction serves as a limit on the exercise
of a power that reaches to the very verge of constitutional
authority. Reduction of an individual to an assigned racial
identity for differential treatment is among the most pernicious
actions our government can undertake. The allocation of
governmental burdens and benefits, contentious under any
circumstances, is even more divisive when allocations are made on
the basis of individual racial classifications. See, e.g., Regents of Univ. of Cal. v. Bakke , 438 U. S. 265 (1978); Adarand , 515 U. S. 200 . Notwithstanding these concerns,
allocation of benefits and burdens through individual racial
classifications was found sometimes permissible in the context of
remedies for de jure wrong. Where there has been de
jure segregation, there is a cognizable legal wrong, and the
courts and legislatures have broad power to remedy it. The remedy,
though, was limited in time and limited to the wrong. The Court has
allowed school districts to remedy their prior de jure segregation by classifying individual students based on their race.
See North Carolina Bd. of Ed. v. Swann , 402 U. S. 43 , 45–46
(1971). The limitation of this power to instances where there has
been de jure segregation serves to confine the nature,
extent, and duration of governmental reliance on individual racial
classifications. The cases here were argued upon
the assumption, and come to us on the premise, that the
discrimination in question did not result from de jure actions. And when de facto discrimination is at issue our
tradition has been that the remedial rules are different. The State
must seek alternatives to the classification and differential
treatment of individuals by race, at least absent some
extraordinary showing not present here. C The dissent refers to
an opinion filed by Judge Kozinski in one of the cases now before
us, and that opinion relied upon an opinion filed by Chief Judge
Boudin in a case presenting an issue similar to the one here. See post , at 35 (citing 426 F. 3d 1162, 1193–1196 (CA9
2005) (concurring opinion) (citing Comfort v. Lynn
School Comm. , 418 F. 3d 1, 27–29 (CA1 2005) (Boudin,
C. J., concurring))). Though this may oversimplify the matter
a bit, one of the main concerns underlying those opinions was this:
If it is legitimate for school authorities to work to avoid racial
isolation in their schools, must they do so only by indirection and
general policies? Does the Constitution mandate this inefficient
result? Why may the authorities not recognize the problem in candid
fashion and solve it altogether through resort to direct
assignments based on student racial classifications? So, the
argument proceeds, if race is the problem, then perhaps race is the
solution. The argument ignores
the dangers presented by individual classifications, dangers that
are not as pressing when the same ends are achieved by more
indirect means. When the government classifies an individual by
race, it must first define what it means to be of a race. Who
exactly is white and who is nonwhite? To be forced to live under a
state-mandated racial label is inconsistent with the dignity of
individuals in our society. And it is a label that an individual is
powerless to change. Governmental classifications that command
people to march in different directions based on racial typologies
can cause a new divisiveness. The practice can lead to corrosive
discourse, where race serves not as an element of our diverse
heritage but instead as a bargaining chip in the political process.
On the other hand race-conscious measures that do not rely on
differential treatment based on individual classifications present
these problems to a lesser degree. The idea that if race is the
problem, race is the instrument with which to solve it cannot be
accepted as an analytical leap forward. And if this is a
frustrating duality of the Equal Protection Clause it simply
reflects the duality of our history and our attempts to promote
freedom in a world that sometimes seems set against it. Under our
Constitution the individual, child or adult, can find his own
identity, can define her own persona, without state intervention
that classifies on the basis of his race or the color of her
skin. *  *  * This Nation has a
moral and ethical obligation to fulfill its historic commitment to
creating an integrated society that ensures equal opportunity for
all of its children. A compelling interest exists in avoiding
racial isolation, an interest that a school district, in its
discretion and expertise, may choose to pursue. Likewise, a
district may consider it a compelling interest to achieve a diverse
student population. Race may be one component of that diversity,
but other demographic factors, plus special talents and needs,
should also be considered. What the government is not permitted to
do, absent a showing of necessity not made here, is to classify
every student on the basis of race and to assign each of them to
schools based on that classification. Crude measures of this sort
threaten to reduce children to racial chits valued and traded
according to one school’s supply and another’s demand. That statement, to be sure,
invites this response: A sense of stigma may already become the
fate of those separated out by circumstances beyond their immediate
control. But to this the replication must be: Even so, measures
other than differential treatment based on racial typing of
individuals first must be exhausted. The decision today
should not prevent school districts from continuing the important
work of bringing together students of different racial, ethnic, and
economic backgrounds. Due to a variety of factors—some influenced
by government, some not—neighborhoods in our communities do not
reflect the diversity of our Nation as a whole. Those entrusted
with directing our public schools can bring to bear the creativity
of experts, parents, administrators, and other concerned citizens
to find a way to achieve the compelling interests they face without
resorting to widespread governmental allocation of benefits and
burdens on the basis of racial classifications. With this explanation I concur in
the judgment of the Court. THOMAS, J., CONCURRING PARENTS INVOLVED IN COMMUNITY SCHOOLS V.SEATTLE SCHOOL DIST. NO.
1 551 U. S. ____ (2007) SUPREME COURT OF THE UNITED STATES NOS. 05-908 AND 05-915 PARENTS INVOLVED IN COMMUNITY SCHOOLS,
PETITIONER

															05–908 v. SEATTLE SCHOOL DISTRICT NO. 1
et al. on writ of certiorari to the united states
court of appeals for the ninth circuit CRYSTAL D. MEREDITH, custodial parent and next
friend of JOSHUA RYAN McDONALD, PETITIONER

															05–915 v. JEFFERSON COUNTY BOARD OF EDUCATION
et al. on writ of certiorari to the united states
court of appeals for the sixth circuit [June 28, 2007] Justice Thomas ,
concurring.

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

															I

															   The dissent repeatedly claims
that the school districts are threatened with resegregation and
that they will succumb to that threat if these plans are declared
unconstitutional. It also argues that these plans can be justified
as part of the school boards’ attempts to “eradicat[e] earlier
school segregation.” See, e.g. , post , at 4.
Contrary to the dissent’s rhetoric, neither of these school
districts is threatened with resegregation, and neither is
constitutionally compelled or permitted to undertake race-based
remediation. Racial imbalance is not segregation, and the mere
incantation of terms like resegregation and remediation cannot make
up the difference.

															A

															   Because this Court has authorized
and required race-based remedial measures to address de
jure segregation, it is important to define segregation
clearly and to distinguish it from racial imbalance. In the context
of public schooling, segregation is the deliberate operation of a
school system to “carry out a governmental policy to separate
pupils in schools solely on the basis of race.” Swann v. Charlotte-Mecklenburg Bd. of Ed. , 402 U. S. 1 , 6 (1971); see
also Monroe v. Board of Comm’rs of Jackson , 391 U. S. 450 ,
452 (1968). In Brown, this Court declared that segregation
was unconstitutional under the Equal Protection Clause of the
Fourteenth Amendment. Swann , supra , at 6; see
also Green v. School Bd. of New Kent Cty. , 391 U. S. 430 ,
435 (1968) (“[T]he State, acting through the local school board and
school officials, organized and operated a dual system, part
‘white’ and part ‘Negro.’ It was such dual systems that 14 years
ago Brown I [, 347 U. S. 483 ,] held unconstitutional
and a year later Brown II [, 349 U. S. 294 (1955)]
held must be abolished”) .[ Footnote 1 ] Racial imbalance is the
failure of a school district’s individual schools to match or
approximate the demographic makeup of the student population at
large. Cf. Washington v. Seattle School Dist. No. 1 , 458 U. S. 457 ,
460 (1982). Racial imbalance is not segregation.[ Footnote 2 ] Although presently observed racial
imbalance might result from past de jure segregation,
racial imbalance can also result from any number of innocent
private decisions, including voluntary housing choices. See Swann , supra , at 25–26; Missouri v. Jenkins , 515 U. S. 70 , 116 (1995) (Thomas, J.,
concurring). Because racial imbalance is not inevitably linked to
unconstitutional segregation, it is not unconstitutional in and of
itself. Dayton Bd. of Ed. v. Brinkman , 433 U. S. 406 , 413
(1977); Dayton Bd. of Ed. v. Brinkman , 443 U. S. 526 , 531,
n. 5 (1979) (“Racial imbalance … is not per se a
constitutional violation”); Freeman v. Pitts , 503 U. S. 467 ,
494 (1992); see also Swann , supra , at 31–32; cf. Milliken v. Bradley , 418 U. S. 717 , 740–741,
and n. 19 (1974).

															   Although there is arguably a danger of racial
imbalance in schools in Seattle and Louisville, there is no danger
of resegregation. No one contends that Seattle has established or
that Louisville has reestablished a dual school system that
separates students on the basis of race. The statistics cited in
Appendix A to the dissent are not to the contrary. See post , at 69–72. At most, those statistics show a national
trend toward classroom racial imbalance. However, racial imbalance
without intentional state action to separate the races does not
amount to segregation. To raise the specter of resegregation to
defend these programs is to ignore the meaning of the word and the
nature of the cases before us.[ Footnote 3 ]

															B

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

															1

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

															2

															   This Court has carved out a
narrow exception to that general rule for cases in which a school
district has a “history of maintaining two sets of schools in a
single school system deliberately operated to carry out a
governmental policy to separate pupils in schools solely on the
basis of race.”[ Footnote 4 ] See Swann , 402 U. S., at 5–6. In such cases, race-based
remedial measures are sometimes required.[ Footnote 5 ] Green , 391 U. S., at 437–438; cf. United States v. Fordice , 505 U. S. 717 , 745 (1992) (Thomas, J.,
concurring).[ Footnote 6 ] But
without a history of state-enforced racial separation, a school
district has no affirmative legal obligation to take race-based
remedial measures to eliminate segregation and its vestiges.

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

															3

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

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

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

															C

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

															   For at least two reasons,
however, it is wrong to place the remediation of segregation on the
same plane as the remediation of racial imbalance. First, as
demonstrated above, the two concepts are distinct. Although racial
imbalance can result from de jure segregation, it does not
necessarily, and the further we get from the era of state-sponsored
racial separation, the less likely it is that racial imbalance has
a traceable connection to any prior segregation. See Freeman , 503 U. S., at 496; Jenkins , 515 U. S.,
at 118 (Thomas, J., concurring).

															   Second, a school cannot “remedy” racial
imbalance in the same way that it can remedy segregation.
Remediation of past de jure segregation is a one-time
process involving the redress of a discrete legal injury inflicted
by an identified entity. At some point, the discrete injury will be
remedied, and the school district will be declared unitary. See Swann , 402 U. S., at 31. Unlike de jure segregation, there is no ultimate remedy for racial imbalance.
Individual schools will fall in and out of balance in the natural
course, and the appropriate balance itself will shift with a school
district’s changing demographics. Thus, racial balancing will have
to take place on an indefinite basis—a continuous process with no
identifiable culpable party and no discernable end point. In part
for those reasons, the Court has never permitted outright racial
balancing solely for the purpose of achieving a particular racial
balance.

															II

															   Lacking a cognizable interest in
remediation, neither of these plans can survive strict scrutiny
because neither plan serves a genuinely compelling state interest.
The dissent avoids reaching that conclusion by unquestioningly
accepting the assertions of selected social scientists while
completely ignoring the fact that those assertions are the subject
of fervent debate. Ultimately, the dissent’s entire analysis is
corrupted by the considerations that lead it initially to question
whether strict scrutiny should apply at all. What emerges is a
version of “strict scrutiny” that combines hollow assurances of
harmlessness with reflexive acceptance of conventional wisdom. When
it comes to government race-based decisionmaking, the Constitution
demands more.

															A

															   The dissent claims that “the law
requires application here of a standard of 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 the
concurrences of two Court of Appeals judges. Post, at
34–36 (citing 426 F. 3d 1162, 1193–1194 (CA9 2005) (Kozinski,
J., concurring); Comfort v. Lynn School Comm., 418 F. 3d 1, 28–29 (CA1 2005) (Boudin, C. J.,
concurring)). Those lower court judges reasoned that programs like
these are not “aimed at oppressing blacks” and do not “seek to give
one racial group an edge over another.” Comfort , supra , at 27 (Boudin, C. J., concurring); 426
F. 3d, at 1193 (Kozinski, J., concurring). They were further
persuaded that these plans differed from other race-based programs
this Court has considered because they are “certainly more benign
than laws that favor or disfavor one race, segregate by race, or
create quotas for 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 the Fourteenth Amendment was
addressed,” id., at 29; 426 F. 3d, at 1195 (Kozinski,
J., concurring). Instead of strict scrutiny, Judge Kozinski would
have analyzed the plans under “robust and realistic rational basis
review.” Id., at 1194.

															   These arguments are inimical to
the Constitution and to this Court’s precedents.[ Footnote 9 ] We have made it unusually clear that
strict scrutiny applies to every racial classification. Adarand , 515 U. S., at 227; Grutter , 539 U. S.,
at 326; Johnson v. California , 543 U. S. 499 , 505 (2005) (“We have
insisted on strict scrutiny in every context, even for so-called
‘benign’ racial classifications”).[ Footnote 10 ] There are good reasons not to apply a lesser
standard to these cases. The constitutional problems with
government race-based decisionmaking are not diminished in the
slightest by the presence or absence of an intent to oppress any
race or by the real or asserted well-meaning motives for the
race-based decisionmaking. Adarand , 515 U. S., at 228–229.
Purportedly benign race-based decisionmaking suffers the same
constitutional infirmity as invidious race-based decisionmaking. Id., at 240 (Thomas, J., concurring in part and concurring
in judgment) (“As far as the Constitution is concerned, it is
irrelevant whether a government’s racial classifications are drawn
by those who wish to oppress a race or by those who have a sincere
desire to help those thought to be disadvantaged”).

															   Even supposing it mattered to the
constitutional analysis, the race-based student assignment programs
before us are not as benign as the dissent believes. See post , at 34–35. “[R]acial paternalism and its unintended
consequences can be as poisonous and pernicious as any other form
of discrimination.” Adarand , supra , at 241
(opinion of Thomas, J.). As these programs demonstrate, every time
the government uses racial criteria to “bring the races together,” post , at 29, someone gets excluded, and the person
excluded suffers an injury solely because of his or her race. The
petitioner in the Louisville case received a letter from the school
board informing her that her kindergartener would not be
allowed to attend the school of petitioner’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
every year these race-based assignment plans were in operation.
This type of exclusion, solely on the basis of race, is precisely
the sort of government action that pits the races against one
another, exacerbates racial tension, and “provoke[s] resentment
among those who believe that they have been wronged by the
government’s use of race.” Adarand , supra , at 241
(opinion of Thomas, J.). Accordingly, these plans are simply one
more variation on the government race-based decisionmaking we have
consistently held must be subjected to strict scrutiny. Grutter , supra , at 326.

															B

															   Though the dissent admits to
discomfort in applying strict scrutiny to these plans, it claims to
have nonetheless applied that exacting standard. But in its search
for a compelling interest, the dissent casually accepts even the
most tenuous interests asserted on behalf of the plans, grouping
them all under the term “ ‘integration.’ ” See post , at 37. “ ‘[I]ntegration,’ ” we are told,
has “three essential elements.” Ibid. None of these
elements is compelling. And the combination of the three
unsubstantiated elements does not produce an interest any more
compelling than that represented by each element independently.

															1

															   According to the dissent,
integration involves “an interest in setting right the consequences
of prior conditions of segregation.” Post , at 37. For the
reasons explained above, the records in these cases do not
demonstrate that either school board’s plan is supported by an
interest in remedying past discrimination. Part I–B, supra .

															   Moreover, the school boards have
no interest in remedying the sundry consequences of prior
segregation unrelated to schooling, such as “housing patterns,
employment practices, economic conditions, and social attitudes.” Post , at 38. General claims that past school segregation
affected such varied societal trends are “too amorphous a basis for
imposing a racially classified remedy,” Wygant , 476 U. S.,
at 276 (plurality opinion), because “[i]t is sheer speculation” how
decades-past segregation in the school system might have affected
these trends, see Croson , 488 U. S., at 499. Consequently,
school boards seeking to remedy those societal problems with
race-based measures in schools today would have no way to gauge the
proper scope of the remedy. Id., at 498. Indeed, remedial
measures geared toward such broad and unrelated societal ills have
“ ‘no logical stopping point,’ ” ibid. , and
threaten to become “ageless in their reach into the past, and
timeless in their ability to affect the future,” Wygant , supra , at 276 (plurality opinion). See Grutter ,
539 U. S., at 342 (stating the “requirement that all governmental
use of race must have a logical end point”).

															   Because the school boards lack any further
interest in remedying segregation, this element offers no support
for the purported interest in “integration.”

															2

															   Next, the dissent argues that the
interest in integration has an educational element. The dissent
asserts that racially balanced schools improve educational outcomes
for black children. In support, the dissent unquestioningly cites
certain social science research to support propositions that are
hotly disputed among social scientists. In reality, it is far from
apparent that coerced racial mixing has any educational benefits,
much less that integration is necessary to black achievement.

															   Scholars have differing opinions
as to whether educational benefits arise from racial balancing.
Some have concluded that black students receive genuine educational
benefits. See, e.g. , Crain & Mahard, Desegregation and
Black 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 African American Students, in
Beyond Desegregation 166 (M. Shujaa ed. 1996) (“Perhaps
desegregation does not have a single effect, positive or negative,
on the academic achievement of African American students, but
rather some strategies help, some hurt, and still others make no
difference whatsoever. It is clear to us that focusing simply on
demographic issues detracts from focusing on improving schools”).
And some have concluded that there are no demonstrable educational
benefits. See, e.g. , Armor & Rossell, Desegregation
and Resegregation in the Public Schools, in Beyond 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 of opinion. Supporting the school boards,
one amicus has assured us that “both early desegregation
research and recent statistical and econometric analyses … indicate
that there are positive effects on minority student achievement
scores arising from diverse school settings.” Brief for American
Educational Research Association as Amicus Curiae 10.
Another brief claims that “school desegregation has a modest
positive impact on the achievement of African-American students.”
App. to Brief for 553 Social Scientists as Amici Curiae 13–14 (footnote omitted). Yet neither of those briefs contains
specific details like the magnitude of the claimed positive effects
or the precise demographic mix at which those positive effects
begin to be realized. Indeed, the social scientists’ brief rather
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 math
scores,” id., at 14, and admitting that the “underlying
reasons for these gains in achievement are not entirely clear,” id., at 15.[ Footnote
11 ]

															   Other amici dispute these findings.
One amicus reports that “[i]n study after study, racial
composition of a student body, when isolated, proves to be an
insignificant determinant of student achievement.” Brief for Dr.
John Murphy et al. as Amici Curiae in No. 05–908,
p. 8; see also id. , at 9 (“[T]here is no evidence
that diversity 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 no clear and
consistent evidence of [educational] benefits.” Brief for David J.
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 prominent example of an exemplary
black school was Dunbar High School. Id., at 29 (“[I]n the
period 1918–1923, Dunbar graduates earned fifteen degrees from Ivy
League colleges, and ten degrees from Amherst, Williams, and
Wesleyan”). Dunbar is by no means an isolated example. See id., at 10–32 (discussing other successful black schools);
Walker, Can Institutions Care? Evidence from the Segregated
Schooling of African American Children, in Beyond Desegregation
209–226 (M. Shujaa ed. 1996); see also T. Sowell, Affirmative
Action Around the World: An Empirical Study 141–165 (2004). Even
after Brown , some schools with predominantly black
enrollments have achieved outstanding educational results. See, e.g. , S. Carter, No Excuses: Lessons from 21
High-Performing, High-Poverty Schools 49–50, 53–56, 71–73, 81–84,
87–88 (2001); A. Thernstrom & S. Thernstrom, No Excuses:
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 in California). There is also
evidence that black students attending historically black colleges
achieve better academic results than those attending predominantly
white colleges. Grutter , supra , at 364–365
(Thomas, J., concurring in part and concurring in judgment) (citing
sources); see also Fordice , 505 U. S., at 748–749 (Thomas,
J., concurring).

															   The Seattle school board itself must believe
that racial mixing 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’s effort to “increase
academic achievement.”[ Footnote
12 ] See African American Academy History, online at http://www.
seattleschools.org/schools/aaa/history.htm (all Internet materials
as visited June 26, 2007, and available in Clerk of Court’s case
file). According to the school’s most recent annual report,
“[a]cademic excellence” is its “primary goal.” See African American
Academy 2006 Annual Report, p. 2, online at
http://www.seattleschools.org/area/
siso/reports/anrep/altern/938.pdf. This racially imbalanced
environment has reportedly produced test scores “higher across all
grade levels in reading, writing and math.” Ibid. Contrary
to what the dissent would have predicted, see post , at
38–39, the children in Seattle’s African American Academy have
shown gains when placed in a “highly segregated” environment.

															   Given this tenuous relationship between forced
racial mixing and improved educational results for black children,
the dissent cannot plausibly maintain that an educational element
supports the integration interest, let alone makes it
compelling.[ Footnote 13 ] See Jenkins , 515 U. S., at 121–122 (Thomas, J., concurring)
(“[T]here is no reason to think that black students cannot learn as
well when surrounded by members of their own race as when they are
in an integrated environment”).

															   Perhaps recognizing as much, the dissent
argues that the social science evidence is “strong enough to permit
a democratically elected school board reasonably to determine that
this interest is a compelling one.” Post , at 38. This
assertion is inexplicable. It is not up to the school boards—the
very government entities whose race-based practices we must
strictly scrutinize—to determine what interests qualify as
compelling under the Fourteenth Amendment to the United States
Constitution. Rather, this Court must assess independently the
nature of the interest asserted and the evidence to support it in
order to determine whether it qualifies as compelling under our
precedents. In making such a determination, we have deferred to
state authorities only once, see Grutter , 539 U. S., at
328–330, and that deference was prompted by factors uniquely
relevant to higher education. Id., at 328 (“Our holding
today is in keeping with our tradition of giving a degree of
deference to a university’s academic decisions”). The dissent’s
proposed test—whether sufficient social science evidence supports a
government unit’s conclusion that the interest it asserts is
compelling—calls to mind the rational-basis standard of review the
dissent purports not to apply, post , at 36-37. See Williamson v. Lee Optical of Okla., Inc. , 348 U. S. 483 ,
488 (1955) (“It is enough that there is an evil at hand for
correction, and that it might be thought that the particular
legislative measure was a rational way to correct it”).
Furthermore, it would leave our equal-protection jurisprudence at
the mercy of elected government officials evaluating the evanescent
views of a handful of social scientists. To adopt the dissent’s
deferential approach would be to abdicate our constitutional
responsibilities.[ Footnote
14 ]

															3

															   Finally, the dissent asserts a
“democratic element” to the integration interest. It defines the
“democratic element” as “an interest in producing an educational
environment that reflects the ‘pluralistic society’ in which our
children will live.” Post , at 39.[ Footnote 15 ] Environmental reflection, though,
is just another way to say racial balancing. And “[p]referring
members of any one group for no reason other than race or ethnic
origin is discrimination for its own sake.” Bakke , 438 U.
S., at 307 (opinion of Powell, J.). “This the Constitution
forbids.” Ibid.; Grutter , supra, at
329–330; Freeman , 503 U. S., at 494.

															   Navigating around that
inconvenient authority, the dissent argues that the racial
balancing in these plans is not an end in itself but is instead
intended to “teac[h] children to engage in the kind of cooperation
among Americans of all races that is necessary to make a land of
three hundred million people one Nation.” Post , at 39–40.
These “generic lessons in socialization and good citizenship” are
too sweeping to qualify as compelling interests. Grutter ,
539 U. S., at 348 (Scalia, J., concurring in part and dissenting in
part). And they are not “uniquely relevant” to schools or “uniquely
‘teachable’ in a formal educational setting.” Id., at 347.
Therefore, if governments may constitutionally use racial balancing
to achieve these aspirational ends in schools, they may use racial
balancing to achieve similar goals at every level—from
state-sponsored 4–H clubs, see Bazemore v. Friday , 478
U. S. 385 , 388–390 (1986) (Brennan, J., concurring), to the
state civil service. See Grutter , 539 U. S. 347 –348
(opinion of Scalia, J.).

															   Moreover, the democratic interest has no
durational limit, contrary to Grutter ’s command. See id., at 342; see also Croson , 488 U. S., at 498; Wygant , 476 U. S., at 275 (plurality opinion). In other
words, it will always be important for students to learn
cooperation among the races. If this interest justifies
race-conscious measures 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 (plurality opinion), cannot justify
government race-based decisionmaking.[ Footnote 16 ]

															   In addition to these defects, the democratic
element of the integration interest fails on the dissent’s own
terms. The dissent again relies upon social science research to
support the proposition that state-compelled racial mixing teaches
children to accept cooperation and improves racial attitudes and
race relations. Here again, though, the dissent overstates the data
that supposedly support the interest.

															   The dissent points to data that indicate that
“black and white students in desegregated schools are less racially
prejudiced than those in segregated schools.” Post , at 40
(internal quotation marks omitted). By the dissent’s account,
improvements in racial attitudes depend upon the increased contact
between black and white students thought to occur in more racially
balanced schools. There is no guarantee, however, that students of
different races in the same school will actually spend time with
one another. Schools frequently group students by academic ability
as an aid to efficient instruction, but such groupings often result
in classrooms with high concentrations of one race or another. See, e.g. , Yonezawa, Wells, & Serna, Choosing Tracks:
“Freedom of Choice” in Detracting Schools, 39 Am. Ed. Research J.,
No. 1, p. 38 (Spring 2002); Mickelson, Subverting Swann:
First- and Second-Generation Segregation 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 different races 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
contact leads directly to improvements in racial attitudes and race
relations, a program that assigns students of different races to
the same schools might not capture those benefits. Simply putting
students together under the same roof does not necessarily mean
that the students will learn together or even interact.

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

															   Given our case law and the paucity of evidence
supporting the dissent’s belief that these plans improve race
relations, no democratic element can support the integration
interest.[ Footnote 18 ]

															4

															   The dissent attempts to buttress
the integration interest by claiming that it follows a
fortiori from the interest this Court recognized as compelling
in Grutter . Post , at 41. Regardless of the merit
of Grutter , the compelling interest recognized in that
case cannot support these plans. Grutter recognized a
compelling interest in a law school’s attainment of a diverse
student body. 539 U. S., at 328. This interest was critically
dependent upon features unique to higher education: “the expansive
freedoms of speech and thought associated with the university
environment,” the “special niche in our constitutional tradition”
occupied by universities, and “[t]he freedom of a university to
make its own judgments as to education[,] includ[ing] the selection
of its student body.” Id., at 329 (internal quotation
marks omitted). None of these features is present in elementary and
secondary schools. Those schools do not select their own students,
and education in the elementary and secondary environment generally
does not involve the free interchange of ideas thought to be an
integral part of higher education. See 426 F. 3d, at 1208
(Bea, J., dissenting). Extending Grutter to this context
would require us to cut that holding loose from its theoretical
moorings. Thus, only by ignoring Grutter ’s reasoning can
the dissent claim that recognizing a compelling interest in these
cases is an a fortiori application of Grutter .

															C

															   Stripped of the baseless and
novel interests the dissent asserts on their behalf, the school
boards cannot plausibly maintain that their plans further a
compelling interest. As I explained in Grutter , only
“those measures the State must take to provide a bulwark against
anarchy … or to prevent violence” and “a government’s effort to
remedy past discrimination for which it is responsible” constitute
compelling interests. 539 U. S., at 351–352, 353. Neither of the
parties has argued—nor could they—that race-based student
assignment is necessary to provide a bulwark against anarchy or to
prevent violence. And as I explained above, the school districts
have no remedial interest in pursuing these programs. See Part I–B, supra . Accordingly, the school boards cannot satisfy
strict scrutiny. These plans are unconstitutional.

															III

															   Most of the dissent’s criticisms
of today’s result can be traced to its rejection of the color-blind
Constitution. See post , at 29. The dissent attempts to
marginalize the notion of a color-blind Constitution by consigning
it to me and Members of today’s plurality.[ Footnote 19 ] 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 classes among citizens.” Plessy v. Ferguson , 163 U. S. 537 , 559 (1896) (dissenting
opinion). And my view was the rallying 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 our dedicated belief”); Brief for Appellants in Brown v. Board of Education , O. T. 1952, No. 1, p. 5
(“The Fourteenth Amendment precludes a state from imposing
distinctions or classifications based upon race and color
alone”);[ Footnote 20 ] 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
he turned during his most depressed moments. The ‘Bible’ would be
known in the legal community as the first Mr. Justice Harlan’s
dissent in Plessy v. Ferguson , 163 U. S. 537 , 552 (1896). I do not
know of any opinion which buoyed Marshall more in his
pre- Brown days …”).

															   The dissent appears to pin its
interpretation of the Equal Protection Clause to current societal
practice and expectations, deference to local officials, likely
practical consequences, and reliance on previous statements from
this and other courts. Such a view was ascendant in this Court’s
jurisprudence for several decades. It first appeared in Plessy, where the Court asked whether a state law
providing for segregated railway cars was “a reasonable
regulation.” 163 U. S., at 550. The Court deferred to local
authorities in making its determination, noting that in inquiring
into reasonableness “there must necessarily be a large discretion
on the part of the legislature.” Ibid. The Court likewise
paid heed to societal practices, local expectations, and practical
consequences by looking to “the established usages, customs and
traditions of the people, and with a view to the promotion of their
comfort, and the preservation of the public peace and good order.” Ibid. Guided by these principles, the Court concluded:
“[W]e cannot say that a law which authorizes or even requires the
separation of the two races in public conveyances is unreasonable,
or more obnoxious to the Fourteenth Amendment than the acts of
Congress requiring separate schools for colored children in the
District of Columbia.” Id., at 550–551.

															   The segregationists in Brown embraced
the arguments the Court endorsed in Plessy . Though Brown decisively rejected those arguments, today’s dissent
replicates them to a distressing extent. Thus, the dissent argues
that “[e]ach plan embodies the results of local experience and
community consultation.” Post , at 47. Similarly, the
segregationists 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 school system which is
capable of efficient administration, taking into account local
problems and conditions”).[ Footnote 21 ] The dissent argues that “weight [must be
given] to a local school board’s knowledge, expertise, and
concerns,” post , at 48, and with equal vigor, the
segregationists argued for deference to local authorities. See, e.g. , Brief for Kansas on Reargument in Brown v. Board of Education , O. T. 1953, No. 1, p. 14
(“We advocate only a concept of constitutional law that permits
determinations of state and local policy to be made on state and
local levels. We defend only the validity of the statute that
enables the Topeka Board of Education to determine its own
course”).[ Footnote 22 ] The
dissent argues that today’s decision “threatens to substitute for
present calm a disruptive round of race-related litigation,” post , at 2, and claims that today’s decision “risks
serious harm to the law and for the Nation,” post, at 65.
The segregationists also relied upon the likely practical
consequences of 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 race
violates the Constitution will result in upheaval in all of those
places not now subject to Federal judicial scrutiny. This Court has
made many decisions of widespread effect; none would affect more
people more directly in more fundamental interests and, in fact,
cause more chaos in local government than a reversal of the
decision in this case”).[ Footnote 23 ] And foreshadowing today’s dissent, the
segregationists most heavily relied upon judicial precedent. See, e.g. , Brief for Appellees on Reargument in Briggs v. Elliott , O. T. 1953, No. 2, p. 59 (“[I]t would be
difficult indeed to find a case so favored by precedent as is the
case for South Carolina here”).[ Footnote 24 ]

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

															   What was wrong in 1954 cannot be right
today.[ Footnote 27 ] Whatever
else the Court’s rejection of the segregationists’ arguments in Brown might have established, it certainly made clear that
state and local governments cannot take from the Constitution a
right to make decisions on the basis of race by adverse possession.
The fact that state and local governments had been discriminating
on the basis of race for a long time was irrelevant to the Brown Court. The fact that racial discrimination was
preferable to the relevant communities was irrelevant to the Brown Court. And the fact that the state and local
governments had relied on statements in this Court’s opinions was
irrelevant to the Brown Court. The same principles guide
today’s decision. None of the considerations trumpeted by the
dissent is relevant to the constitutionality of the school boards’
race-based plans because no contextual detail—or collection of
contextual details, post , at 2–22—can “provide refuge from
the principle that under our Constitution, the government may not
make distinctions on the basis of race.” Adarand , 515 U.
S., at 240 (Thomas, J., concurring in part and concurring in
judgment).[ Footnote 28 ]

															   In place of the color-blind Constitution, the
dissent would permit measures to keep the races together and
proscribe measures to keep the races apart.[ Footnote 29 ] See post , at 28–34,
64–65. Although no such distinction is apparent in the Fourteenth
Amendment, the dissent would constitutionalize today’s faddish
social theories that embrace that distinction. The Constitution is
not that malleable. Even if current social theories favor classroom
racial engineering as necessary to “solve the problems at hand,” post , at 21, the Constitution enshrines principles
independent of social theories. See Plessy , 163 U. S., at
559 (Harlan, J., dissenting) (“The white race deems itself to be
the dominant race in this country. And so it is, in prestige, in
achievements, in education, in wealth and in power. So, I doubt
not, it will continue to be for all time … . But in view of
the Constitution, in the eye of the law, there is in this country
no superior, dominant, ruling class of citizens. … Our Constitution
is color-blind, and neither knows nor tolerates classes among
citizens”). Indeed, if our history has taught us anything, it has
taught us to beware of elites bearing racial theories.[ Footnote 30 ] See, e.g. , Dred Scott v. Sandford , 19 How. 393, 407 (1857)
(“[T]hey [members of the “negro African race”] had no rights which
the white man was bound to respect”). Can we really be sure that
the racial theories that motivated Dred Scott and Plessy are a relic of the past or that future theories
will be nothing but beneficent and progressive? That is a gamble I
am unwilling to take, and it is one the Constitution does not
allow.

															*  *  *

															   The plans before us base school
assignment decisions on students’ race. Because “[o]ur Constitution
is color-blind, and neither knows nor tolerates classes among
citizens,” such race-based decisionmaking is unconstitutional. Plessy , supra, at 559 (Harlan, J., dissenting). I
concur in the Chief Justice’s opinion so holding. Footnote 1 In this Court’s paradigmatic segregation
cases, there was a local ordinance, state statute, or state
constitutional provision requiring racial separation. See, e.g. , Brief for Petitioners in Bolling v. Sharpe , O. T. 1952, No. 4, pp. 28–30 (cataloging
state laws requiring separa- tion of the races); id., at
App. A (listing “Statutory and Consti- tutional Provisions in the
States Where Segregation in Education is Institutionalized”). Footnote 2 The dissent refers repeatedly and reverently
to “ ‘integration.’ ” However, outside of the context of
remediation for past de jure segregation, “integration” is
simply racial balancing. See post , at 37. Therefore, the
school districts’ attempts to further “integrate” are properly
thought of as little more than attempts to achieve a particular
racial balance. Footnote 3 The dissent’s assertion that these plans are
necessary for the school districts to maintain their “hard-won
gains” reveals its conflation of segregation and racial imbalance. Post , at 38. For the dissent’s purposes, the relevant
hard-won gains are the present racial compositions in the
individual schools in Seattle and Louisville. However, the actual
hard-won gain in these cases is the elimination of the vestiges of
the system of state-enforced racial separation that once existed in
Louisville. To equate the achievement of a certain statistical mix
in several schools with the elimination of the system of systematic de jure segregation trivializes the latter accomplishment.
Nothing but an interest in classroom aesthetics and a
hypersensitivity to elite sensibilities justifies the school
districts’ racial balancing programs. See Part II–B, infra . But “the principle of inherent equality that
underlies and infuses our Constitution” required the
disestablishment of de jure segregation. See Adarand
Constructors, Inc. v. Peńa , 515 U. S. 200 , 240 (1995) (Thomas, J.,
concurring in part and concurring in judgment). Assessed in any
objective manner, there is no comparison between the two. Footnote 4 The dissent makes much of the supposed
difficulty of determining whether prior segregation was de
jure or de facto . See, e.g. , post ,
at 19–20. That determination typically will not be nearly as
difficult as the dissent makes it seem. In most cases, there either
will or will not have been a state constitutional amendment, state
statute, local ordinance, or local administrative policy explicitly
requiring separation of the races. See, e.g. , n. 1, supra . And even if the determination is difficult, it is
one the dissent acknowledges must be made to determine what
remedies school districts are required to adopt. Post , at
43. Footnote 5 This Court’s opinion in McDaniel v. Barresi , 402
U. S. 39 (1971), fits comfortably within this framework. There,
a Georgia school board voluntarily adopted a desegregation plan. At
the time of Brown , v. Board of Education, 347 U. S. 483 (1954), Georgia’s
Constitution required that “[s]eparate schools shall be provided
for the white and colored races.” Ga. Const., Art. VII, §1,
ch. 2–6401 (1948). Given that state law had previously required the
school board to maintain a dual school system, the county was
obligated to take measures to remedy its prior de jure segregation. This Court recognized as much in its opinion, which
stated that the school board had an “affirmative duty to
disestablish the dual school system.” McDaniel , supra , at 41. Footnote 6 As I have explained elsewhere, the remedies
this Court authorized lower courts to compel in early desegregation
cases like Green and Swann were exceptional. See Missouri v. Jenkins , 515 U. S. 70 , 124–125 (1995), (Thomas,
J., concurring). Sustained resistance to Brown prompted
the Court to authorize extraordinary race-conscious remedial
measures (like compelled racial mixing) to turn the Constitution’s
dictate to desegregate into reality. 515 U. S., at 125 (Thomas, J.,
concurring). Even if these measures were appropriate as remedies in
the face of widespread resistance to Brown ’s mandate, they
are not forever insulated from constitutional scrutiny. Rather,
“such powers should have been temporary and used only to overcome
the widespread resistance to the dictates of the Constitution.” 515
U. S., at 125 (Thomas, J., concurring). Footnote 7 Though the dissent cites every manner of
complaint, record material, and scholarly article relating to
Seattle’s race-based student assignment efforts, post , at
73–75, it cites no law or official policy that required separation
of the races in Seattle’s schools. Nevertheless, the dissent tries
to cast doubt on the historical fact that the Seattle schools were
never segregated by law by citing allegations that the National
Association for the Advancement of Colored People and other
organizations made in court filings to the effect that Seattle’s
schools were once segregated by law. See post , at 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 resolving these cases. Footnote 8 Contrary to the dissent’s argument, post , at 44, the Louisville school district’s interest in
remedying its past de jure segregation did vanish the day
the District Court found that Louisville had eliminated the
vestiges of its historic de jure segregation. See Hampton v. Jefferson Cty. Bd. of Ed., 102
F. Supp. 2d 358, at 360 (WD Ky. 2000). If there were further
remediation to be done, the District Court could not logically have
reached the conclusion that Louisville “ha[d] eliminated the
vestiges associated with the former policy of segregation and its
pernicious effects.” Ibid. Because Louisville could use
race-based measures only as a remedy for past de jure segregation, it is not “incoherent,” post , at 56, to say
that race-based decisionmaking was allowed to Louisville one
day—while it was still remedying—and forbidden to it the next—when
remediation was finished. That seemingly odd turnaround is merely a
result of the fact that the remediation of de jure segregation is a jealously guarded exception to the Equal
Protection Clause’s general rule against government race-based
decisionmaking. Footnote 9 The dissent’s appeal to stare
decisis , post , at 65, is particularly ironic in light
of its apparent willingness to depart from these precedents, post , at 36–37. Footnote 10 The idea that government racial
classifications must be subjected to strict scrutiny did not
originate in Adarand . As early as Loving v. Virginia , 388
U. S. 1 (1967), this Court made clear that government action
that “rest[s] solely upon distinctions drawn according to race” had
to be “subjected to the ‘most rigid scrutiny.’ ” Id., at 11 (quoting Korematsu v. United States , 323 U. S. 214 ,
216 (1944)); see also McLaughlin v. Florida , 379 U. S. 184 ,
196 (1964) (requiring a statute drawing a racial classification to
be “necessary, and not merely rationally related, to accomplishment
of a permissible state policy”); id., at 197 (Harlan, J.,
concurring) (“The necessity test … should be equally applicable in
a case involving state racial discrimination”). Footnote 11 At least one of the academic articles the
dissent cites to support this proposition fails to establish a
causal connection between the supposed educational gains realized
by black students and racial mixing. See Hallinan, Diversity
Effects 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 that article remarks that “the main reason
white and minority students perform better academically in majority
white schools is likely that these schools provide greater
opportunities to learn. In other words, it is not desegregation per
se that improves achievement, but rather the learning advantages
some desegregated schools provide.” Id., at 744. Evidence
that race is a good proxy for other factors that might be
correlated with educational benefits does not support a compelling
interest in the use of race to achieve academic results. Footnote 12 Of course, if the Seattle school board were
truly committed to the notion that diversity leads directly to
educational benefits, operating a school with such a high
“nonwhite” enrollment would be a shocking dereliction of its duty
to educate the students enrolled in that school. Footnote 13 In fact, the available data from the Seattle
school district appear to undercut the dissent’s view. A comparison
of the test results of the schools in the last year the racial
balancing program operated to the results in the 2004-to-2005
school year (in which student assignments were race-neutral) does
not indicate the decline in black achieve- ment one would expect to
find if black achievement were contin- gent upon a particular
racial mix. See Washington State Report Card, online at
http://reportcard.ospi.k12.wa.us/summary.aspx?schoolId=
1099&OrgType=4&reportLevel=School;
http://reportcard.ospi.k12.wa.us/
summary.aspx?schoolId=1104&reportLevel=School&orgLinkId=1104&yrs=;
http: // reportcard . ospi . k12 . wa . us / summary . aspx ? schoolId = 1061 & report
Level = School & orgLinkId = 1061 & yrs = ;
http: // reportcard . ospi.k12 . wa.us/
summary . aspx ? schoolId = 1043 & reportLevel = School & orgLinkId = 1043 &
yrs= (showing that reading scores went up, not down, when Seattle’s
race-based assignment program ended at Sealth High School, Ingraham
High School, and Franklin High School—some of the schools most
affected by the plan). Footnote 14 The dissent accuses me of “feel[ing]
confident that, to end invidious discrimination, one must end all governmental use of race-conscious criteria” and
chastises me for not deferring to democratically elected
majorities. See post , at 62. Regardless of what Justice
Breyer’s goals might be, this Court does not sit to “create a
society that includes all Americans” or to solve the problems of
“troubled inner city schooling.” Ibid. We are not social
engineers. The United States Constitution dictates that local
governments cannot make decisions on the basis of race.
Consequently, regardless of the perceived negative effects of
racial imbalance, I will not defer to legislative majorities where
the Constitution forbids it.

															   It should escape no one that behind Justice
Breyer’s veil of judicial modesty hides an inflated role for the
Federal Judiciary. The dissent’s approach confers on judges the
power to say what sorts of discrimination are benign and which are
invidious. Having made that determination (based on no objective
measure that I can detect), a judge following the dissent’s
approach will set the level of scrutiny to achieve the desired
result. Only then must the judge defer to a democratic majority. In
my view, to defer to one’s preferred result is not to defer at
all. Footnote 15 The notion that a “democratic” interest
qualifies as a compelling interest (or constitutes a part of a
compelling interest) is proposed for the first time in today’s
dissent and has little basis in the Constitution or our precedent,
which has narrowly restricted the interests that qualify as
compelling. See Grutter v. Bollinger, 539 U. S. 306 , 351–354 (2003) (Thomas,
J., concurring in part and dissenting in part). The Fourteenth
Amendment does not enact the dissent’s newly minted understanding
of liberty. See Lochner v. New York , 198 U. S. 45 , 75 (1905)
(Holmes, J., dissenting) (“The Fourteenth Amendment does not enact
Mr. Herbert Spencer’s Social Statics”). Footnote 16 The dissent does not explain how its
recognition of an interest in teaching racial understanding and
cooperation here is consistent with the Court’s rejection of a
similar interest in Wygant . In Wygant , a school
district justified its race-based teacher-layoff program in part on
the theory that “minority teachers provided ‘role models’ for
minority students and that a racially ‘diverse’ faculty would
improve the education of all students.” Grutter , supra , at 352 (opinion of Thomas, J.) (citing Brief for
Respondents, O. T. 1984, No. 84–1340, pp. 27–28; 476 U. S., at
315 (Stevens, J., dissenting)). The Court rejected the interests
asserted to justify the layoff program as insufficiently
compelling. Wygant, 476 U. S., at 275–276 (plurality
opinion); id., at 295 (White, J., concurring in judgment).
If a school district has an interest in teaching racial
understanding and cooperation, there is no logical reason why that
interest should not extend to the composition of the teaching staff
as well as the composition of the student body. The dissent’s
reliance on this interest is, therefore, inconsistent with Wygant . Footnote 17 Outside the school context, this Court’s
cases reflect the fact that racial mixing does not always lead to
harmony and understanding. In Johnson v. California , 543 U. S. 499 (2005), this Court
considered a California prison policy that separated inmates
racially. Id., at 525–528 (Thomas, J., dissenting). That
policy was necessary because of “numerous incidents of racial
violence.” Id., at 502; id ., at 532–534 (Thomas,
J., dissenting). As a result of this Court’s insistence on strict
scrutiny of that policy, but see id., at 538–547, inmates
in the California prisons were killed. See Beard v. Banks , 548 U. S. ___, ___ (2006) (Thomas, J., concurring
in judgment) (noting that two were killed and hundreds were injured
in race rioting subsequent to this Court’s decision in Johnson ). Footnote 18 After discussing the “democratic element,”
the dissent repeats its assertion that the social science evidence
supporting that interest is “sufficiently strong to permit a school
board to determine … that this interest is compelling.” Post , at 40. Again, though, the school boards have no say
in deciding whether an interest is compelling. Strict scrutiny of
race-based government decisionmaking is more searching than Chevron -style administrative review for reasonableness.
See Chevron U. S. A. Inc. v. Natural Resources
Defense Council, Inc. , 467 U. S. 837 , 845
(1984). Footnote 19 The dissent half-heartedly attacks the
historical underpinnings of the color-blind Constitution. Post , at 28–29. I have no quarrel with the proposition
that the Fourteenth Amendment sought to bring former slaves into
American society as full members. Post, at 28 (citing Slaughter-House Cases , 16 Wall. 36, 71–72 (1873)). What
the dissent fails to understand, however, is that the color-blind
Constitution does not bar the government from taking measures to
remedy past state-sponsored discrimination—indeed, it requires that
such measures be taken in certain circumstances. See, e.g. , Part I–B, supra. Race-based government
measures during the 1860’s and 1870’s to remedy state-enforced
slavery were therefore not inconsistent with the color-blind
Constitution. Footnote 20 See also Juris. Statement in Davis v. County School Board , O. T. 1952, No. 3, p. 8
(“[W]e take the unqualified position that the Fourteenth Amendment
has totally stripped the state of power to make race and color the
basis for governmental action”); Tr. of Oral Arg. in Brown v. Board of Education , O. T. 1952, No. 1, p. 7 (“We
have one fundamental contention which we will seek to develop in
the course of this argument, and that contention is that no State
has any authority under the equal-protection clause of the
Fourteenth Amendment to use race as a factor in affording
educational opportunities among its citizens”); Tr. of Oral Arg. in Briggs v. Elliott , O. T. 1953, No. 2, p. 50
(“[T]he state is deprived of any power to make any racial
classifications in any governmental field”). Footnote 21 See also Brief for Appellees in Davis v. County School Board , O. T. 1952,
No. 3, p. 1 (“[T]he Court is asked … to outlaw the fixed
policies of the several States which are based on local social
conditions well known to the respective legislatures”); id., at 9 (“For this purpose, 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 (“[T]he historical background that exists, certainly
in this Virginia situation, with all the strife and the history
that we have shown in this record, shows a basis, a real basis, for
the classification that has been made”); id., at 69
(describing the potential abolition of segregation as “contrary to
the customs, the traditions and the mores of what we might claim to
be a great people, established through generations, who themselves
are fiercely and irrevocably dedicated to the preservation of the
white and colored races”). Accord, post , at 68 (“Today,
almost 50 years later, attitudes toward race in this Nation have
changed dramatically. Many parents, white and black alike, want
their children to attend schools with children of different races.
Indeed, the very school districts that once spurned integration now
strive for it. The long history of their efforts reveals the
complexities and difficulties they have faced”); post, at
21 (emphasizing the importance of “local circumstances” and
encouraging different localities to “try different solutions to
common problems and gravitate toward those that prove most
successful or seem to them best to suit their individual needs”
(citations and internal quotation marks omitted)); post, at 48 (emphasizing the school districts’ “40-year history” during
which both school districts have tried numerous approaches “to
achieve more integrated schools”); post , at 63 (“[T]he
histories of Louisville and Seattle reveal complex circumstances
and a long tradition of conscientious efforts by local school
boards”). Footnote 22 See also Brief for Appellees in Brown v. Board of Education , O. T. 1952, No.
1, p. 29 (“ ‘It is universally held, therefore, that each
state shall determine for itself, subject to the observance of the
fundamental rights and liberties guaranteed by the federal
Constitution, how it shall exercise the police power … . And
in no field is this right of the several states more clearly
recognized than in that of public education’ ” (quoting Briggs v. Elliott, 98 F. Supp. 529, 532 (SC
1951))); Brief for Appellees in Briggs v. Elliott , O. T. 1952, No. 2, p. 7 (“Local
self-government in local affairs is essential to the peace and
happiness of each locality and to the strength and stability of our
whole federal system. Nowhere is this more profoundly true than in
the field of education”); Tr. of Oral Arg. in Briggs v. Elliott , O. T. 1952, No. 2, pp. 54–55 (“What is
the great national and federal policy on this matter? Is it not a
fact that the very strength and fiber of our federal system is
local self-government in those matters for which local action is
competent? Is it not of all the activities of government the one
which most nearly approaches the hearts and minds of people, the
question of the education of their young? Is it not the height of
wisdom that the manner in which that shall be conducted should be
left to those most immediately affected by it, and that the wishes
of the parents, both white and colored, should be ascertained
before their children are forced into what may be an unwelcome
contact?”). Accord, post , at 48 (“[L]ocal school boards
better understand their own communities and have a better knowledge
of what in practice will best meet the educational needs of their
pupils”); post , at 66 (“[W]hat of respect for democratic
local decisionmaking by States and school boards?”); ibid. (explaining “that the Constitution grants local school districts a
significant degree of leeway”). Footnote 23 See also Reply Brief for Appellees in Davis v. County School Board , O. T. 1953,
No. 3, p. 17 (“The Court is … dealing with thousands of local
school districts and schools. Is each to be the subject of
litigation in the District Courts?”); Brief for Kansas on
Reargument in Brown v. Board of Education ,
O. T. 1953, No. 1, p. 51 (“The delicate nature of the problem
of segregation and the paramount interest of the State of Kansas in
preserving the internal peace and tranquility of its people
indicates that this is a question which can best be solved on the
local level, at least until Congress declares otherwise”). Accord, post , at 61 (“At a minimum, the plurality’s views would
threaten a surge of race-based litigation. Hundreds of state and
federal statutes and regulations use racial classifications for
educational or other purposes… . In many such instances, 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 are serious. Yesterday, the plans under review were lawful.
Today, they are not”); post, at 66 (predicting “further
litigation, aggravating race-related conflict”). Footnote 24 See also Statement of Appellees Opposing
Jurisdiction and Motion to Dismiss or Affirm in Davis v. County School Board , O. T. 1952, No. 3, p. 5
(“[I]t would be difficult to find from any field of law a legal
principle more repeatedly and conclusively decided than the one
sought to be raised by appellants”); Brief for Appellees in Davis v. County School Board , O. T. 1953,
No. 3, p. 46–47 (“If this case were to be decided solely on
the basis of precedent, this brief could have been much more
limited. There is ample precedent in the decisions of this Court to
uphold school segregation”); Brief for Petitioners in Gebhart v. Belton , O. T. 1952, No. 5,
p. 27 (“Respondents ask this Court to upset a long established
and well settled principle recognized by numerous state
Legislatures, and Courts, both state and federal, over a long
period of years”); Tr. of Oral Arg. in Briggs v. Elliott , O. T. 1953, No. 2, p. 79 (“But be that
doctrine what it may, somewhere, sometime to every principle comes
a moment of repose when it has been so often announced, so
confidently relied upon, so long continued, that it passes the
limits of judicial discretion and disturbance… . We relied on
the fact that this Court had not once but seven times, I think it
is, pronounced in favor of the separate but equal doctrine. We
relied on the fact that the courts of last appeal of some sixteen
or eighteen States have passed upon the validity of the separate
but equal doctrine vis-a-vis the Fourteenth Amendment. We relied on
the fact that Congress has continuously since 1862 segregated its
schools in the District of Columbia”); Brief for Appellees in Briggs v. Elliott , O. T. 1952, No. 2, App. D
(collecting citations of state and federal cases “[w]hich
[e]nunciate the [p]rinciple that [s]tate [l]aws [p]roviding for
[r]acial [s]egregation in the [p]ublic [s]chools do not [c]onflict
with the Fourteenth Amendment”). Accord, post , at 22
(“[T]he Court set forth in Swann a basic principle of
constitutional law—a principle of law that has found wide
acceptance in the legal culture” (citations and internal quotation
marks omitted)); post, at 25 (“Lower state and federal
courts had considered the matter settled and uncontroversial even
before this Court decided Swann ”); post , at 26
(“Numerous state and federal courts explicitly relied upon Swann ’s guidance for decades to follow”); post, at 27 (stating “how lower courts understood and followed Swann ’s enunciation of the relevant legal principle”); post , at 30 (“The constitutional principle enunciated in Swann, reiterated in subsequent cases, and relied upon
over many years, provides, and has widely been thought to provide,
authoritative legal guidance”); post , at 61 (“[T]oday’s
opinion will require setting aside the laws of several States and
many local communities”); post , at 66 (“And what has
happened to Swann? To McDaniel? To Crawford? To Harris? To School Committee of
Boston? To Seattle School Dist. No. 1? After decades
of vibrant life, they would all, under the plurality’s logic, be
written out of the law”). Footnote 25 Compare Brief for Appellees in Davis v. County School Board , O. T. 1952, No. 3,
p. 16–17 (“ ‘It is by such practical considerations based
on experience rather than by theoretical inconsistencies that the
question of equal protection is to be answered’ ” (quoting Railway Express Agency, Inc. v. New York, 336 U. S. 110 (1949))); Brief for Appellees on Reargument in Davis v. County School Board , O. T. 1953, No. 3, p. 76 (“The
question is a practical one for them to solve; it is not subject to
solution in the theoretical realm of abstract principles”); Tr. of
Oral Arg. in Davis v. County School Board ,
O. T. 1953, No. 4, p. 86 (“[Y]ou cannot talk about this
problem just in a vacuum in the manner of a law school
discussion”), with post , at 57 (“The Founders meant the
Constitution as a practical document”). Footnote 26 Compare Brief for Kansas on Reargument in Brown v. Board of Education , O. T. 1953, No.
1, p. 57 (“[T]he people of Kansas . . . are abandoning the
policy of segregation whenever local conditions and local attitudes
make it feasible”), Brief for Appellees on Reargument in Davis v. County School Board , O. T. 1953,
No. 3, p. 76 (“As time passes, it may well be that segregation will
end”), with post , at 19 (“[T]hey use race-conscious
criteria in limited and gradually diminishing ways”); post , at 48 (“[E]ach plan’s use of race-conscious elements
is diminished compared to the use of race in preceding
integration plans”); post, at 55 (describing the
“historically-diminishing use of race” in the school
districts). Footnote 27 It is no answer to say that these cases can
be distinguished from Brown because Brown involved invidious racial classifications whereas the racial
classifications here are benign. See post , at 62. How does
one tell when a racial classification is invidious? The
segregationists in Brown argued that their racial
classifications were benign, not invidious. See Tr. of Oral Arg. in Briggs v. Elliott , O. T. 1953, No. 2, p. 83
(“It [South Carolina] is confident of its good faith and intention
to produce equality for all of its children of whatever race or
color. It is convinced that the happiness, the progress and the
welfare of these children is best promoted in segregated schools”);
Brief for Appellees on Reargument in Davis v. County
School Board , O. T. 1953, No. 3, p. 82–83 (“Our many
hours of research and investigation have led only to confirmation
of our view that segregation by race in Virginia’s public schools
at this time not only does not offend the Constitution of the
United States but serves to provide a better education for living
for the children of both races”); Tr. of Oral Arg. in Davis v. County School Board , O. T. 1952,
No. 3, p. 71 (“[T]o make such a transition, would undo what we have
been doing, and which we propose to continue to do for the uplift
and advancement of the education of both races. It would stop this
march of progress, this onward sweep”). It is the height of
arrogance for Members of this Court to assert blindly that their
motives are better than others. Footnote 28 See also id., at 8–9 (“It has been
urged that [these state laws and policies] derive validity as a
consequence of a long duration supported and made possible by a
long line of judicial decisions, including expressions in some of
the decisions of this Court. At the same time, it is urged that
these laws are valid as a matter of constitutionally permissible
social experimentation by the States. On the matter of stare
decisis, I submit that the duration of the challenged practice,
while it is persuasive, is not controlling… . As a matter of
social experimentation, the laws in question must satisfy the
requirements of the Constitution. While this Court has permitted
the States to legislate or otherwise officially act experimentally
in the social and economic fields, it has always recognized and
held that this power is subject to the limitations of the
Constitution, and that the tests of the Constitution must be met”);
Reply Brief for Appellants in Briggs v. Elliott ,
O. T. 1953, No. 2, pp. 18–19 (“The truth of the matter is
that this is an attempt to place local mores and customs above the
high equalitarian principles of our Government as set forth in our
Constitution and particularly the Fourteenth Amendment. This entire
contention is tantamount to saying that the vindication and
enjoyment of constitutional rights recognized by this Court as
present and personal can be postponed whenever such postponement is
claimed to be socially desirable”). Footnote 29 The dissent does not face the complicated
questions attending its proposed standard. For example, where does
the dissent’s principle stop? Can the government force racial
mixing against the will of those being mixed? Can the government
force black families to relocate to white neighborhoods in the name
if bringing the races together? What about historically black
colleges, which have “established traditions and programs that
might disproportionately appeal to one race or another”? United
States v. Fordice , 505 U. S. 717 , 749 (1992) (Thomas, J.,
concurring). The dissent does not and cannot answer these questions
because the contours of the distinction it propounds rest entirely
in the eye of the beholder. Footnote 30 Justice Breyer’s good intentions, which I do
not doubt, have the shelf life of Justice Breyer’s tenure. Unlike
the dissenters, I am unwilling to delegate my constitutional
responsibilities to local school boards and allow them to
experiment with race-based decisionmaking on the assumption that
their intentions will forever remain as good as Justice Breyer’s.
See The Federalist No. 51, p. 349 (J. Cooke ed. 1961) (“If men were
angels, no government would be necessary”). Indeed, the racial
theories endorsed by the Seattle school board should cause the
dissenters to question whether local school boards should be
entrusted with the power to make decisions on the basis of race.
The Seattle school district’s Website formerly contained the
following definition of “cultural racism”: “Those aspects of
society that overtly and covertly attribute value and normality to
white people and whiteness, and devalue, stereotype, and label
people of color as ‘other,’ different, less than, or render them
invisible. Examples of these norms include defining white skin
tones as nude or flesh colored, having a future time orientation,
emphasizing individualism as opposed to a more collective ideology,
defining one form of English as standard . . . .” See Harrell,
School Web Site Removed: Examples of Racism Sparked Controversy,
Seattle Post-Intelligencer, June 2, 2006, p. B1. After the site was
removed, the district offered the comforting clarification that the
site was not intended “ ‘to hold onto unsuccessful concepts
such as melting pot or colorblind mentality.’ ” Ibid.; see also ante , at 22, n. 15
(plurality opinion).

															   More recently, the school district sent a
delegation of high school students to a “White Privilege
Conference.” See Equity and Race Relations White Privilege
Conference, https://www.seattleschools.
org/area/equityandrace/whiteprivilegeconference.xml. One conference
participant described “white privilege” as “an invisible package of
unearned assets which I can count on cashing in each day, but about
which I was meant to remain oblivious. White Privilege is like an
invisible weightless knapsack of special provisions, maps,
passports, codebooks, visas, clothes, tools, and blank checks.” See
White Privilege Conference, Questions and Answers,
http://www.uccs.edu/~wpc/ faqs.htm; see generally Westneat, School
District’s Obsessed with Race, Seattle Times, Apr. 1, 2007, p. B1
(describing racial issues in Seattle schools). STEVENS, J., DISSENTING PARENTS INVOLVED IN COMMUNITY SCHOOLS V.SEATTLE SCHOOL DIST. NO.
1 551 U. S. ____ (2007) SUPREME COURT OF THE UNITED STATES NOS. 05-908 AND 05-915 PARENTS INVOLVED IN COMMUNITY SCHOOLS,
PETITIONER

															05–908 v. SEATTLE SCHOOL DISTRICT NO. 1
et al. on writ of certiorari to the united states
court of appeals for the ninth circuit CRYSTAL D. MEREDITH, custodial parent and next
friend of JOSHUA RYAN McDONALD, PETITIONER

															05–915 v. JEFFERSON COUNTY BOARD OF EDUCATION
et al. on writ of certiorari to the united states
court of appeals for the sixth circuit [June 28, 2007] Justice Stevens ,
dissenting.

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

															   There is a cruel irony in The Chief Justice’s
reliance on our decision in Brown v. Board of
Education, 349
U. S. 294 (1955). The first sentence in the concluding
paragraph of his opinion states: “Before Brown, schoolchildren were told where they could 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: “[T]he
majestic equality of the la[w], forbid[s] rich and poor alike to
sleep under bridges, to beg in the streets, and to steal their
bread.”[ Footnote 1 ] The Chief
Justice fails to note that it was only black schoolchildren who
were so ordered; indeed, the history books do not tell stories of
white children struggling to attend black schools.[ Footnote 2 ] In this and other ways, The
Chief Justice rewrites the history of one of this Court’s most
important decisions. Compare ante, at 39 (“history will be
heard”), with Brewer v. Quarterman, 550 U. S.
___, ___ (2007) (slip op., at 11) (Roberts, C. J., dissenting)
(“It is a familiar adage that history is written by the
victors”).

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

															   If we look at cases decided during the interim
between Brown and Adarand, we can see how a rigid
adherence to tiers of scrutiny obscures Brown ’s clear
message. Perhaps the best example is provided by our approval of
the decision of the Supreme Judicial Court of Massachusetts in 1967
upholding a state statute mandating racial integration in that
State’s school system. See School Comm. of Boston v. Board of Education, 352 Mass. 693, 227 N. E. 2d
729.[ Footnote 5 ] Rejecting
arguments comparable to those that the plurality accepts
today,[ Footnote 6 ] that court
noted: “It would be the height of irony if the racial imbalance
act, enacted as it was with the laudable purpose of achieving equal
educational opportunities, should, by prescribing school pupil
allocations based on race, founder on unsuspected shoals in the
Fourteenth Amendment.” Id., at 698, 227 N. E. 2d, at
733 (footnote omitted).

															   Invoking our mandatory appellate
jurisdiction,[ Footnote 7 ] the
Boston plaintiffs prosecuted an appeal in this Court. Our ruling on
the merits simply stated that the appeal was “dismissed for want of
a substantial federal question.” School Comm. of Boston v. Board of Education , 389 U. S. 572 (1968) (per
curiam). That decision not only expressed our appraisal of the
merits of the appeal, but it constitutes a precedent that the Court
overrules today. The subsequent statements by the unanimous Court
in Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1 , 16
(1971), by then-Justice Rehnquist in chambers in Bustop,
Inc. v. Los Angeles Bd. of Ed., 439 U. S. 1380 , 1383
(1978), and by the host of state court decisions cited by Justice
Breyer, see post , 25–27,[ Footnote 8 ] were fully consistent with that disposition.
Unlike today’s decision, they were also entirely loyal to Brown. The Court has changed significantly since it
decided School Comm. of Boston in 1968. It was then more
faithful to Brown and more respectful of our precedent
than it is today. It is my firm conviction that no Member of the
Court that I joined in 1975 would have agreed with today’s
decision. Footnote 1 Le Lys Rouge (The Red Lily) 95 (W. Stephens
transl. 6th ed. 1922). Footnote 2 See, e.g. , J. Wilkinson, From Brown to Bakke 11 (1979) (“Everyone understands
that Brown v. Board of Education helped deliver
the Negro from over three centuries of legal bondage”); Black, The
Lawfulness of the Segregation Decisions, 69 Yale L. J. 421,
424–425 (“History, too, tells us that segregation was imposed on
one race by the other race; consent was not invited or required.
Segregation in the South grew up and is kept going because and only
because the white race has wanted it that way—an incontrovertible
fact which itself hardly consorts with equality”). Footnote 3 I have long adhered to the view that a
decision to exclude a member of a minority because of his race is
fundamentally different from a decision to include a member of a
minority for that reason. See, e.g. , Adarand
Constructors, Inc. v. Peńa , 515 U. S. 200 , 243, 248, n. 6
(1995) (Stevens, J., dissenting); Wygant v. Jackson
Bd. of Ed. , 476 U. S. 267 , 316 (1986) (same). This
distinction is critically important in the context of education.
While the focus of our opinions is often on the benefits that
minority schoolchildren receive from an integrated education, see, e.g. , ante , at 15 (Thomas, J., concurring),
children of all races benefit from integrated classrooms
and playgrounds, see Wygant , 476 U. S., at 316 (“[T]he
fact that persons of different races do, indeed, have differently
colored skin, may give rise to a belief that there is some
significant difference between such persons. The inclusion of
minority teachers in the educational process inevitably tends to
dispel that illusion whereas their exclusion could only tend to
foster it”). Footnote 4 The Chief Justice twice cites my dissent in Fullilove v. Klutznick , 448 U. S. 448 (1980).
See ante , at 12, 23. In that case, I stressed the
importance of confining a remedy for past wrongdoing to
the members of the injured class. See 448 U. S., at 539. The
present cases, unlike Fullilove but like our decision in Wygant , 476 U. S. 267 , require us to “ask
whether the Board[s’] actions[s] advanc[e] the public interest in
educating children for the future ,” id ., at 313
(Stevens, J., dissenting) (emphasis added). See ibid . (“In
my opinion, it is not necessary to find that the Board of Education
has been guilty of racial discrimination in the past to support the
conclusion that it has a legitimate interest in employing more
black teachers in the future”). See also Adarand, 515 U.
S., at 261–262 (1995) (Stevens, J., dissenting) (“This program,
then, if in part a remedy for past discrimination, is most
importantly a forward-looking response to practical problems faced
by minority subcontractors”). Footnote 5 The Chief Justice states that the
Massachusetts racial imbalance Act did not require express
classifications. See ante , at 31-32, n. 16. This is
incorrect. The Massachusetts Supreme Judicial Court expressly
stated:

															“The racial imbalance act requires the school committee of every
municipality annually to submit statistics showing the percentage
of nonwhite pupils in all public schools and in each school.
Whenever the board finds that racial imbalance exists in a public
school, it shall give written notice to the appropriate school
committee, which shall prepare a plan to eliminate imbalance and
file a copy with the board. ‘The term “racial imbalance” refers to
a ratio between nonwhite and other students in public schools which
is sharply out of balance with the racial composition of the
society in which nonwhite children study, serve and work. For the
purpose of this section, racial imbalance shall be deemed to exist
when the per cent of nonwhite students in any public school is in
excess of fifty per cent of the total number of students in such
school.’ ” 352 Mass., at 695, 227 N. E. 2d, at 731. Footnote 6 Compare ante , at 39 (“It was not the
inequality of the facilities but the fact of legally separating
children on the basis of race on which the Court relied to find a
constitutional violation in 1954”), with Juris. Statement in School Comm. of Boston v. Board of Education, O. T. 1967, No. 67–759, p. 11 (“It is implicit in Brown v. Board of Education of Topeka, 347 U. S. 483 ,
that color or race is a constitutionally impermissible standard for
the assignment of school children to public schools. We construe Brown as endorsing Mr. Justice Harlan’s classical
statement in Plessy v. Ferguson , 163 U. S. 537 , 539: ‘Our
constitution is color-blind, and neither knows nor tolerates
classes among citizens’ ”). Footnote 7 In 1968 our mandatory jurisdiction was
defined by the provision of the 1948 Judicial Code then codified at
28 U. S. C. §1257, see 62 Stat. 929; that provision was
repealed in 1988, see 102 Stat. 662. Footnote 8 For example, prior to our decision in School Comm. of Boston, the Illinois Supreme
Court had issued an unpublished opinion holding unconstitutional a
similar statute aimed at eliminating racial imbalance in public
schools. See Juris. Statement in School Comm. of Boston v. Board of Education, O. T. 1967, No. 67–759, at 9
(“Unlike the Massachusetts Court, the Illinois Supreme Court has
recently held its law to eliminate racial imbalance
unconstitutional on the ground that it violated the Equal
Protection Clause of the Fourteenth Amendment”); ibid., n. 1. However, shortly after we dismissed the Massachusetts
suit for want of a substantial federal question, the Illinois
Supreme Court reversed course and upheld its statute in the
published decision that Justice Breyer extensively quotes in his
dissent. See Tometz v. Board of Ed., Waukegan School
Dist. No. 6, 39 Ill. 2d 593, 237 N. E. 2d 498 (1968). In
so doing, the Illinois Supreme Court acted in explicit reliance on
our decision in School Comm. of Boston. See 39 Ill. 2d, at
599–600, 237 N. E. 2d, at 502 (“Too, the United States Supreme
Court on January 15, 1968, dismissed an appeal in School Committee
of Boston v. Board of Education, (Mass. 1967) 227 N. E. 2d
729, which challenged the statute providing for elimination of
racial imbalance in public schools ‘for want of a substantial
federal question.’ 389 U. S. 572 ”). BREYER, J., DISSENTING PARENTS INVOLVED IN COMMUNITY SCHOOLS V.SEATTLE SCHOOL DIST. NO.
1 551 U. S. ____ (2007) SUPREME COURT OF THE UNITED STATES NOS. 05-908 AND 05-915 PARENTS INVOLVED IN COMMUNITY SCHOOLS,
PETITIONER

															05–908 v. SEATTLE SCHOOL DISTRICT NO. 1
et al. on writ of certiorari to the united states
court of appeals for the ninth circuit CRYSTAL D. MEREDITH, custodial parent and next
friend of JOSHUA RYAN McDONALD, PETITIONER

															05–915 v. JEFFERSON COUNTY BOARD OF EDUCATION
et al. on writ of certiorari to the united states
court of appeals for the sixth circuit [June 28, 2007] Justice Breyer , with
whom Justice Stevens, Justice Souter, and Justice Ginsburg join,
dissenting.

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

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

															I Facts The historical and factual
context in which these cases arise is critical. In Brown , this
Court held that the government’s segregation of schoolchildren by
race violates the Constitution’s promise of equal protection. The
Court emphasized that “education is perhaps the most important
function of state and local governments.” 347 U. S., at 493. And it
thereby set the Nation on a path toward pub-lic school
integration.

															   In dozens of subsequent cases,
this Court told school districts previously segregated by law what
they must do at a minimum to comply with Brown ’s
constitutional holding. The measures required by those cases often
included race-conscious practices, such as mandatory busing and
race-based restrictions on voluntary transfers. See, e.g. , Columbus Bd. of Ed. v. Penick , 443 U. S. 449 , 455,
n. 3 (1979); Davis v. Board of School Comm’rs of
Mobile Cty. , 402
U. S. 33 , 37–38 (1971); Green v. School Bd. of New
Kent Cty. , 391
U. S. 430 , 441–442 (1968).

															   Beyond those minimum
requirements, the Court left much of the determination of how to
achieve integration to the judgment of local communities. Thus, in
respect to race-conscious desegregation measures that the
Constitution permitted, but did not require (measures similar to those at issue here), this Court unanimously
stated:

															“School authorities are traditionally charged with
broad power to formulate and implement educational policy and might
well conclude, for example, that in order to prepare students to
live in a pluralistic society each school should have a prescribed
ratio of Negro to white students reflecting the proportion for the
district as a whole. To do this as an educational policy is
within the broad discretionary powers of school authorities .” Swann v. Charlotte-Mecklenburg Bd. of Ed. , 402 U. S. 1 , 16
(1971) (emphasis added).

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

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

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

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

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

															   The histories that follow set forth these
basic facts. They are based upon numerous sources, which for ease
of exposition I have cataloged, along with their corresponding
citations, at Appendix B, infra. A Seattle 1. Segregation, 1945 to
1956. During and just after World War II, significant numbers
of black Americans began to make Seattle their home. Few black
residents lived outside the central section of the city. Most
worked at unskilled jobs. Although black students made up about 3%
of the total Seattle population in the mid-1950’s, nearly all black
children attended schools where a majority of the population was
minority. Elementary schools in central Seattle were between 60%
and 80% black; Garfield, the central district high school, was more
than 50% minority; schools outside the central and southeastern
sections of Seattle were virtually all white. 2. Preliminary Challenges,
1956 to 1969. In 1956, a memo for the Seattle School Board
reported that school segregation reflected not only segregated
housing patterns but also school board policies that permitted
white students to transfer out of black schools while restricting
the transfer of black students into white schools. In 1958, black
parents whose children attended Harrison Elementary School (with a
black student population of over 75%) wrote the Seattle board,
complaining that the “ ‘boundaries for the Harrison Elementary
School were not set in accordance with the long-established
standards of the School District … but were arbitrarily set with an
end to excluding colored children from McGilvra School, which is
adjacent to the Harrison school district.’ ”

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

															   At that time one high school, Garfield, was
about two-thirds minority; eight high schools were virtually all
white. In 1963, the transfer program’s first year, 239 black
students and 8 white students transferred. In 1969, about 2,200 (of
10,383 total) of the district’s black students and about 400 of the
district’s white students took advantage of the plan. For the next
decade, annual program transfers remained at approximately this
level. 3. The NAACP’s First Legal Challenge and
Seattle’s Response, 1969 to 1977. In 1969 the NAACP filed a
federal lawsuit against the school board, claiming that the board
had “unlawfully and unconstitutionally” “establish[ed]” and
“maintain[ed]” a system of “racially segregated public schools.”
The complaint said that 77% of black public elementary school
students in Seattle attended 9 of the city’s 86 elementary schools
and that 23 of the remaining schools had no black students at all.
Similarly, of the 1,461 black students enrolled in the 12 senior
high schools in Seattle, 1,151 (or 78.8%) attended 3 senior high
schools, and 900 (61.6%) attended a single school, Garfield.

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

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

															   In 1976–1977, the plan involved
the busing of about 500 middle school students (300 black students
and 200 white students). Another 1,200 black students and 400 white
students participated in the previously adopted voluntary transfer
program. Thus about 2,000 students out of a total district
population of about 60,000 students were involved in one or the
other transfer program. At that time, about 20% or 12,000 of the
district’s students were black. And the board continued to describe
26 of its 112 schools as “segregated.” 4. The NAACP’s
Second Legal Challenge, 1977. In 1977, the NAACP filed another
legal complaint, this time with the federal Department of Health,
Education, and Welfare’s Office for Civil Rights (OCR). The
complaint alleged that the Seattle School Board had created or
perpetuated unlawful racial segregation through, e.g. ,
certain school-transfer criteria, a construction program that
needlessly built new schools in white areas, district line-drawing
criteria, the maintenance of inferior facilities at black schools,
the use of explicit racial criteria in the assignment of teachers
and other staff, and a general pattern of delay in respect to the
implementation of promised desegregation efforts.

															   The OCR and the school board entered into a
formal settlement agreement. The agreement required the board to
implement what became known as the “Seattle Plan.” 5. The Seattle Plan: Mandatory Busing,
1978 to 1988. The board began to implement the Seattle Plan in
1978. This plan labeled “racially imbalanced” any school at which
the percentage of black students exceeded by more than 20% the
minority population of the school district as a whole. It applied
that label to 26 schools, including 4 high schools—Cleveland (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 some grades (say, third and fourth grades) at one school
building and other grades (say, fifth and sixth grades) at the
other school building. And it thereby required, for example, all
fourth grade students from the previously black and previously
white schools first to attend together what would now be a “mixed”
fourth grade at one of the school buildings and then the next year
to attend what would now be a “mixed” fifth grade at the other
school building.

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

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

															   Nonetheless, the Seattle Plan, due to its
busing, provoked serious opposition within the State. See generally Washington v. Seattle School Dist. No. 1 , 458
U. S. 457 , 461–466 (1982). Thus, Washington state voters
enacted an initiative that amended state law to require students to
be assigned to the schools closest to their homes. Id. , at
462. The Seattle School Board challenged the constitutionality of
the initiative. Id. , at 464. This Court then held that the
initiative—which would have prevented the Seattle Plan from taking
effect—violated the Fourteenth Amendment. Id. , at 470. 6. Student Choice, 1988 to 1998. By
1988, many white families had left the school district, and many
Asian families had moved in. The public school population had
fallen from about 100,000 to less than 50,000. The racial makeup of
the school population amounted to 43% white, 24% black, and 23%
Asian or Pacific Islander, with Hispanics and Native Americans
making up the rest. The cost of busing, the harm that members of
all racial communities feared that the Seattle Plan caused, the
desire to attract white families back to the public schools, and
the interest in providing greater school choice led the board to
abandon busing and to substitute a new student assignment policy
that resembles the plan now before us.

															   The new plan permitted each student to choose
the school he or she wished to attend, subject to race-based
constraints. In respect to high schools, for example, a student was
given a list of a subset of schools, carefully selected by the
board to balance racial distribution in the district by including
neighborhood schools and schools in racially different
neighborhoods elsewhere in the city. The student could then choose
among those schools, indicating a first choice, and other choices
the student found acceptable. In making an assignment to a
particular high school, the district would give first preference to
a student with a sibling already at the school. It gave second
preference to a student whose race differed from a race that was
“over-represented” at the school ( i.e., a race that
accounted for a higher percentage of the school population than of
the total district population). It gave third preference to
students residing in the neighborhood. It gave fourth preference to
students who received child care in the neighborhood. In a typical
year, say, 1995, about 20,000 potential high school students
participated. About 68% received their first choice. Another 16%
received an “acceptable” choice. A further 16% were assigned to a
school they had not listed. 7. The Current Plan, 1999 to the
Present. In 1996, the school board adopted the present plan,
which began in 1999. In doing so, it sought to deemphasize the use
of racial criteria and to increase the likelihood that a student
would receive an assignment at his first or second choice high
school. The district retained a racial tiebreaker for
oversubscribed schools, which takes effect only if the school’s
minority or majority enrollment falls outside of a 30% range
centered on the minority/majority population ratio within the
district. At the same time, all students were free subsequently to
transfer from the school at which they were initially placed to a
different school of their choice without regard to race. Thus, at
worst, a student would have to spend one year at a high school he
did not pick as a first or second choice.

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

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

															B Louisville 1. Before the Lawsuit, 1954
to 1972. In 1956, two years after Brown made clear
that Kentucky could no longer require racial segregation by law,
the Louisville Board of Education created a geography-based student
assignment plan designed to help achieve school integration. At the
same time it adopted an open transfer policy under which
approximately 3,000 of Louisville’s 46,000 students applied for
transfer. By 1972, however, the Louisville School District remained
highly segregated. Approximately half the district’s public school
enrollment was black; about half was white. Fourteen of the
district’s nineteen non-vocational middle and high schools were
close to totally black or totally white. Nineteen of the district’s
forty-six elementary schools were between 80% and 100% black.
Twenty-one elementary schools were between roughly 90% and 100%
white. 2. Court-Imposed Guidelines
and Busing, 1972 to 1991. In 1972, civil rights groups and
parents, claiming unconstitutional segregation, sued the Louisville
Board of Education in federal court. The original litigation
eventually became a lawsuit against the Jefferson County School
System, which in April 1975 absorbed Louisville’s schools and
combined them with those of the surrounding suburbs. (For ease of
exposition, I shall still use “Louisville” to refer to what is now
the combined districts.) After preliminary rulings and an eventual
victory for the plaintiffs in the Court of Appeals for the Sixth
Circuit, the District Court in July 1975 entered an order requiring
desegregation.

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

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

															Louisville Courier Journal, June 18, 1976
(reproduced in J. Wilkinson, From Brown to Bakke: The Supreme Court and School Integration 1954–1978, p. 176
(1979)).
   The District Court monitored implementation of
the plan. In 1978, it found that the plan had brought all of
Louisville’s schools within its “ ‘guidelines’ for racial
composition” for “at least a substantial portion of the [previous]
three years.” It removed the case from its active docket while
stating that it expected the board “to continue to implement those
portions of the desegregation order which are by their nature of a
continuing effect.”

															   By 1984, after several schools had fallen out
of compliance with the order’s racial percentages due to shifting
demographics in the community, the school board revised its
desegregation plan. In doing so, the board created a new racial
“guideline,” namely a “floating range of 10% above and 10% below
the countywide average for the different grade levels.” The board
simultaneously redrew district boundaries so that middle school
students could attend the same school for three years and high
school students for four years. It added “magnet” programs at two
high schools. And it adjusted its alphabet-based system for
grouping and busing students. The board estimated that its new plan
would lead to annual reassignment (with busing) of about 8,500
black students and about 8,000 white students. 3. Student Choice and Project Renaissance,
1991 to 1996. By 1991, the board had concluded that assigning
elementary school students to two or more schools during their
elementary school years had proved educationally unsound and, if
continued, would undermine Kentucky’s newly adopted Education
Reform Act. It consequently conducted a nearly year-long review of
its plan. In doing so, it consulted widely with parents and other
members of the local community, using public presentations, public
meetings, and various other methods to obtain the public’s input.
At the conclusion of this review, the board adopted a new plan,
called “Project Renaissance,” that emphasized student choice.

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

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

															   The plan required each middle school student
to be assigned to his or her neighborhood school unless the student
applied for, and was accepted by, a magnet middle school. The plan
provided for “open” high school enrollment. Every 9th or 10th
grader could apply to any high school in the system, and the high
school would accept applicants according to set criteria—one of
which consisted of the need to attain or remain in compliance with
the plan’s racial guidelines. Finally, the plan created two new
magnet schools, one each at the elementary and middle school
levels. 4. The Current Plan: Project Renaissance
Modified, 1996 to 2003. In 1995 and 1996, the Louisville
School Board, with the help of a special “Planning Team,” community
meetings, and other official and unofficial study groups, monitored
the effects of Project Renaissance and considered proposals for
improvement. Consequently, in 1996, the board modified Project
Renaissance, thereby creating the present plan.

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

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

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

															   The Court also found that the magnet programs
available at the high school in question were “not available at
other high schools” in the school district. It consequently held
unconstitutional the use of race-based “targets” to govern
admission to magnet schools . And it ordered the board not
to control access to those scarce programs through the use of
racial targets. 5. The Current Lawsuit, 2003
to the Present. Subsequent to the District Court’s dissolution
of the desegregation order (in 2000) the board simply continued to
implement its 1996 plan as modified to reflect the court’s magnet
school determination. In 2003, the petitioner now before us,
Crystal Meredith, brought this lawsuit challenging the plan’s
unmodified portions, i.e. , those portions that dealt with ordinary , not magnet, schools. Both the District Court and
the Court of Appeals for the Sixth Circuit rejected Meredith’s
challenge and held the unmodified aspects of the plan
constitutional.

															C

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

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

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

															   The histories also make clear the futility of
looking simply to whether earlier school segregation was de
jure or de facto in order to draw firm lines
separating the constitutionally permissible from the
constitutionally forbidden use of “race-conscious” criteria.
Justice Thomas suggests that it will be easy to identify de
jure segregation because “[i]n most cases, there either will
or will not have been a state constitutional amendment, state
statute, local ordinance, or local administrative policy explicitly
requiring separation of the races.” Ante , at 6, n. 4
(concurring opinion). But our precedent has recognized that de
jure discrimination can be present even in the absence of
racially explicit laws. See Yick Wo v. Hopkins , 118 U. S. 356 , 373–374 (1886).

															   No one here disputes that Louisville’s
segregation was de jure . But what about Seattle’s? Was it de facto? De jure? A mixture? Opinions differed.
Or is it that a prior federal court had not adjudicated the matter?
Does that make a difference? Is Seattle free on remand to say that
its schools were de jure segregated, just as in 1956 a
memo for the School Board admitted? The plurality does not seem
confident as to the answer. Compare ante , at 12 (opinion
of the Court) (“[T]he Seattle public schools have never
shown that they were ever segregated by law” (emphasis
added)), with ante at 29–30 (plurality opinion) (assuming
“the Seattle school district was never segregated by law,” but
seeming to concede that a school district with de jure segregation need not be subject to a court order to be allowed to
engage in race-based remedial measures).

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

															   Moreover, Louisville’s history makes clear
that a community under a court order to desegregate might submit a
race-conscious remedial plan before the court dissolved
the order, but with every intention of following that plan even after dissolution. How could such a plan be lawful the day
before dissolution but then become unlawful the very next day? On
what legal ground can the majority rest its contrary view? But see ante , at 12–13, 17, n. 12.

															   Are courts really to treat as
merely de facto segregated those school districts that
avoided a federal order by voluntarily complying with Brown ’s requirements? See id. , at 12, 29–30. This
Court has previously done just the opposite, permitting a
race-conscious remedy without any kind of court decree. See McDaniel , supra , at 41. Because the Constitution
emphatically does not forbid the use of race-conscious measures by
districts in the South that voluntarily desegregated their schools,
on what basis does the plurality claim that the law forbids Seattle
to do the same? But see ante , at 29.

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

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

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

															II The Legal Standard A longstanding and unbroken
line of legal authority tells us that the Equal Protection Clause
permits local school boards to use race-conscious criteria to
achieve positive race-related goals, even when the Constitution
does not compel it. Because of its importance, I shall repeat what
this Court said about the matter in Swann . Chief Justice
Burger, on behalf of a unanimous Court in a case of exceptional
importance, wrote:

															   “School authorities are
traditionally charged with broad power to formulate and implement
educational policy and might well conclude, for example, that in
order to prepare students to live in a pluralistic society each
school should have a prescribed ratio of Negro to white students
reflecting the proportion for the district as a whole. To do this
as an educational policy is within the broad discretionary powers
of school authorities.” 402 U. S., at 16.

															The statement was not a technical holding in the
case. But the Court set forth in Swann a basic principle
of constitutional law—a principle of law that has found “wide
acceptance in the legal culture.” Dickerson v. United
States , 530 U.
S. 428 , 443 (2000) (internal quotation marks omitted); Mitchell v. United States , 526 U. S. 314 , 330
(1999); id. , at 331, 332 (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 (1971), this Court,
citing Swann, restated the point. “[S]chool authorities,”
the Court said, “have wide discretion in formulating school policy,
and . . . as a matter of educational policy school authorities may
well conclude that some kind of racial balance in the schools is
desirable quite apart from any constitutional requirements.”
Then-Justice Rehnquist echoed this view in Bustop, Inc. v. Los Angeles Bd. of Ed. , 439 U. S. 1380 , 1383
(1978) (opinion in chambers), making clear that he too believed
that Swann ’s statement reflected settled law: “While I
have the gravest doubts that [a state supreme court] was required by the United States Constitution to take the
[desegregation] action that it has taken in this case, I have very
little doubt that it was permitted by that Constitution to
take such action.” (Emphasis in original.)

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

															   Federal authorities had claimed—as the NAACP
and the OCR did in Seattle—that Clarke County schools were
segregated in law, not just in fact. The plurality’s claim that
Seattle was “never segregated by law” is simply not accurate.
Compare ante , at 29, with supra , at 6–9. The
plurality could validly claim that no court ever found
that Seattle schools were segregated in law. But that is also true
of the Clarke County schools in McDaniel . Unless we
believe that the Constitution enforces one legal standard for the
South and another for the North, this Court should grant Seattle
the permission it granted Clarke County, Georgia. See McDaniel , 402 U. S., at 41 (“[S]teps will almost
invariably require that students be assigned ‘differently because
of their race.’ . . . Any other approach would freeze the status
quo that is the very target of all desegregation processes.”).

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

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

															   “To support [their] claim, the
defendants heavily rely on three Federal cases, each of which held,
no State law being involved, that a local school board does not
have an affirmative constitutional duty to act to alleviate racial
imbalance in the schools that it did not cause. However, the
question as to whether the constitution requires a local school
board, or a State, to act to undo de facto school
segregation is simply not here concerned. The issue here is whether
the constitution permits, rather than prohibits, voluntary State
action aimed toward reducing and eventually eliminating de
facto school segregation.

															   “State laws or administrative policies,
directed toward the reduction and eventual elimination of de
facto segregation of children in the schools and racial
imbalance, have been approved by every high State court which has
considered the issue. Similarly, the Federal courts which have
considered the issue . . . have recognized that voluntary programs
of local school authorities designed to alleviate de facto segregation and racial imbalance in the schools are not
constitutionally forbidden.” Tometz v. Board of Ed.,
Waukegan School Dist. No. 6 , 39 Ill. 2d 593, 597–598, 237
N. E. 2d 498, 501 (1968) (citations omitted) (citing decisions
from the high courts of Pennsylvania, Massachusetts, New Jersey,
California, New York, and Connecticut, and from the Courts of
Appeals for the First, Second, Fourth, and Sixth Circuits).

															See also, e.g. , Offerman v. Nitkowski , 378 F. 2d 22, 24 (CA2 1967); Deal v. Cincinnati Bd. of Ed. , 369 F. 2d 55, 61 (CA6
1966), cert. denied, 389 U. S. 847 (1967); Springfield School Comm. v. Barksdale , 348
F. 2d 261, 266 (CA1 1965); Pennsylvania Human Relations
Comm’n v. Chester School Dist. , 427 Pa. 157, 164, 233
A. 2d 290, 294 (1967); Booker v. Board of Ed. of
Plainfield, Union Cty. , 45 N. J. 161, 170, 212 A. 2d
1, 5 (1965); Jackson v. Pasadena City School
Dist. , 59 Cal. 2d 876, 881–882, 382 P. 2d 878, 881–882
(1963) (in bank).

															   I quote the Illinois Supreme
Court at length to illustrate the prevailing legal assumption at
the time Swann was decided. In this respect, Swann was not a sharp or unexpected departure from prior
rulings; it reflected a consensus that had already emerged among
state and lower federal courts.

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

															“[T]he absence of a court order to desegregate does
not mean that a school board cannot exceed minimum requirements in
order to promote school integration. School authorities are
traditionally given broad discretionary powers to formulate and
implement educational policy and may properly decide to ensure to
their students the value of an integrated school experience.” Citizens for Better Ed. v. Goose Creek Consol.
Independent School Dist. , 719 S. W. 2d 350, 352-353 (Ct.
App. Tex. 1986) (citing Swann and North Carolina Bd.
of Ed. ), appeal dism’d for want of a substantial federal
question, 484 U. S.
804 (1987).

															Similarly, in Zaslawsky v. Bd. of Ed.
of Los Angeles City Unified School Dist. , 610 F. 2d 661,
662–664 (1979), the Ninth Circuit rejected a federal constitutional
challenge to a school district’s use of mandatory faculty transfers
to ensure that each school’s faculty makeup would fall within 10%
of the districtwide racial composition. Like the Texas court, the
Ninth Circuit relied upon Swann and North Carolina Bd.
of Ed. to reject the argument that “a race-conscious plan is
permissible only when there has been a judicial finding of de
jure segregation.” 610 F. 2d, at 663–664. See also, e.g. , Darville v. Dade County School
Bd. , 497 F. 2d 1002, 1004–1006 (CA5 1974); State ex
rel. Citizens Against Mandatory Bussing v. Brooks , 80
Wash. 2d 121, 128–129, 492 P. 2d 536, 541–542 (1972) (en
banc), overruled on other grounds, Cole v. Webster , 103 Wash. 2d 280, 692 P. 2d 799 (1984) (en
banc); School Comm. of Springfield v. Board of
Ed. , 362 Mass. 417, 428–429 287 N. E. 2d 438, 447–448
(1972). These decisions illustrate well how lower courts understood
and followed Swann ’s enunciation of the relevant legal
principle.

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

															   That Swann ’s legal statement should
find such broad acceptance is not surprising. For Swann is
predicated upon a well-established legal view of the Fourteenth
Amendment. That view understands the basic objective of those who
wrote the Equal Protection Clause as forbidding practices that lead
to racial exclusion. The Amendment sought to bring into American
society as full members those whom the Nation had previously held
in slavery. See Slaughter-House Cases , 16 Wall. 36, 71
(1872) (“[N]o one can fail to be impressed with the one pervading
purpose found in [all the Reconstruction amendments] . . . we mean
the freedom of the slave race”); Strauder v. West
Virginia , 100 U. S. 303 , 306 (1879) (“[The
Fourteenth Amendment] is one of a series of constitutional
provisions having a common purpose; namely, securing to a race
recently emancipated . . . all the civil rights that the superior
race enjoy”).

															   There is reason to believe that those who
drafted an Amendment with this basic purpose in mind would have
understood the legal and practical difference between the use of
race-conscious criteria in defiance of that purpose, namely to keep
the races apart, and the use of race-conscious criteria to further
that purpose, namely to bring the races together. See generally R.
Sears, A Utopian Experiment in Kentucky: Integration and Social
Equality at Berea, 1866–1904 (1996) (describing federal funding,
through the Freedman’s Bureau, of race-conscious school integration
programs). See also R. Fischer, The Segregation Struggle in
Louisiana 1862–77, p. 51 (1974) (describing the use of
race-conscious remedies); Harlan, Desegregation in New Orleans
Public Schools During Reconstruction, 67 Am. Hist. Rev. 663, 664
(1962) (same); W. Vaughn, Schools for All: The Blacks and Public
Education in the South, 1865–1877, pp. 111–116 (1974) (same).
Although the Constitution almost always forbids the former, it is
significantly more lenient in respect to the latter. See Gratz v. Bollinger , 539 U. S. 244 , 301 (2003) (Ginsburg,
J., dissenting); Adarand Constructors, Inc. v. Peńa , 515 U. S. 200 , 243 (1995) (Stevens,
J., dissenting).

															   Sometimes Members of this Court have disagreed
about the degree of leniency that the Clause affords to programs
designed to include. See Wygant v. Jackson Board of
Education , 476
U. S. 267 , 274 (1986); Fullilove v. Klutznick , 448 U. S. 448 , 507
(1980). But I can find no case in which this Court has followed
Justice Thomas’ “colorblind” approach. And I have found no case
that otherwise repudiated this constitutional asymmetry between
that which seeks to exclude and that which seeks to include members of minority races.

															   What does the plurality say in response?
First, it seeks to distinguish Swann and other similar
cases on the ground that those cases involved remedial plans in
response to judicial findings of de jure segregation. As McDaniel and Harris show, that is
historically untrue. See supra , at 22–24. Many school
districts in the South adopted segregation remedies (to which Swann clearly applies) without any such federal
order , see supra, at 19–20. See also Kennedy
Report. Seattle’s circumstances are not meaningfully different from
those in, say, McDaniel , where this Court approved
race-conscious remedies. Louisville’s plan was created and
initially adopted when a compulsory district court order was in
place. And, in any event, the histories of Seattle and Louisville
make clear that this distinction—between court-ordered and
voluntary desegregation—seeks a line that sensibly cannot be
drawn.

															   Second, the plurality downplays the importance
of Swann and related cases by frequently describing their
relevant statements as “dicta.”    These criticisms,
however, miss the main point. Swann did not hide its
understanding of the law in a corner of an obscure opinion or in a
footnote, unread but by experts. It set forth its view prominently
in an important opinion joined by all nine Justices, knowing that
it would be read and followed throughout the Nation. The basic
problem with the plurality’s technical “dicta”-based response lies
in its overly theoretical approach to case law, an approach that
emphasizes rigid distinctions between holdings and dicta in a way
that serves to mask the radical nature of today’s decision. Law is
not an exercise in mathematical logic. And statements of a legal
rule set forth in a judicial opinion do not always divide neatly
into “holdings” and “dicta.” (Consider the legal “status” of
Justice Powell’s separate opinion in Regents of Univ. of
Cal. v. Bakke , 438 U. S. 265 (1978).) The
constitutional principle enunciated in Swann, reiterated
in subsequent cases, and relied upon over many years, provides, and
has widely been thought to provide, authoritative legal guidance.
And if the plurality now chooses to reject that principle, it
cannot adequately justify its retreat simply by affixing the label
“dicta” to reasoning with which it disagrees. Rather, it must
explain to the courts and to the Nation why it would
abandon guidance set forth many years before, guidance that
countless others have built upon over time, and which the law has
continuously embodied.

															   Third, a more important response is the
plurality’s claim that later cases—in particular Johnson , Adarand , and Grutter —supplanted Swann .
See ante , at 11–12, 31–32, n. 16, 34–35 (citing Adarand , supra, at 227; Johnson v. California , 543 U. S. 499 , 505 (2005); Grutter v. Bollinger , 539 U. S. 306 , 326
(2003)). The plurality says that cases such as Swann and
the others I have described all “were decided before this Court
definitively determined that ‘all racial classifications . . . must
be analyzed by a reviewing court under strict scrutiny.’ ” Ante , at 31, n. 16 (quoting Adarand , 515 U.
S., at 227). This Court in Adarand added that “such
classifications are constitutional only if they are narrowly
tailored measures that further compelling governmental interests.” Ibid . And the Court repeated this same statement in Grutter . See 539 U. S., at 326.

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

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

															   Indeed, in its more recent opinions, the Court
recognized that the “fundamental purpose” of strict scrutiny review
is to “take relevant differences” between “fundamentally different
situations . . . into account.” Adarand , supra ,
at 228 (internal quotation marks omitted). The Court made clear
that “[s]trict scrutiny does not trea[t] dissimilar race-based
decisions as though they were equally objectionable.” Ibid. It added that the fact that a law “treats [a person]
unequally because of his or her race . . . says nothing about the
ultimate validity of any particular law.” Id. , at 229–230
(internal quotation marks omitted). And the Court, using the very
phrase that Justice Marshall had used to describe strict scrutiny’s
application to any exclusionary use of racial criteria,
sought to “ dispel the notion that strict scrutiny” is as
likely to condemn inclusive uses of “race-conscious”
criteria as it is to invalidate exclusionary uses. That
is, it is not in all circumstances “ ‘strict in
theory, but fatal in fact.’ ” Id. , at 237 (quoting Fullilove v. Klutznick , 448 U. S., at 519
(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 all are invalidated by
it. . . .

															   “Context matters when reviewing race-based
governmental action under the Equal Protection Clause. See Gomillion v. Lightfoot , 364 U. S. 339 , 343–344 (1960)
(admonishing that, ‘in dealing with claims under broad provisions
of the Constitution, which derive content by an interpretive
process of inclusion and exclusion, it is imperative that
generalizations, based on and qualified by the concrete situations
that gave rise to them, must not be applied out of context in
disregard of variant controlling facts’). . . . Not every decision
influenced by race is equally objectionable, and strict scrutiny is
designed to provide a framework for carefully examining the
importance and the sincerity of the reasons advanced by the
governmental decisionmaker for the use of race in that particular
context.” 539 U. S., at 326–327.

															The Court’s holding in Grutter demonstrates that the Court meant what it said, for the Court
upheld an elite law school’s race-conscious admissions program.

															   The upshot is that the cases to which the
plurality refers, though all applying strict scrutiny, do not treat
exclusive and inclusive uses the same. Rather, they apply the
strict scrutiny test in a manner that is “fatal in fact” only to
racial classifications that harmfully exclude; they apply
the test in a manner that is not fatal in fact to racial
classifications that seek to include .

															   The plurality cannot avoid this simple fact.
See ante , at 34–36. Today’s opinion reveals that the
plurality would rewrite this Court’s prior jurisprudence, at least
in practical application, transforming the “strict scrutiny” test
into a rule that is fatal in fact across the board. In doing so,
the plurality parts company from this Court’s prior cases, and it
takes from local government the longstanding legal right to use
race-conscious criteria for inclusive purposes in limited ways.

															   Second, as Grutter specified,
“[c]ontext matters when reviewing race-based governmental action
under the Equal Protection Clause.” 539 U. S., at 327 (citing Gomillion v. Lightfoot, 364 U. S. 339 , 343–344 (1960)). And
contexts differ dramatically one from the other. Governmental use
of race-based criteria can arise in the context of, for example,
census forms, research expenditures for diseases, assignments of
police officers patrolling predominantly minority-race
neighborhoods, efforts to desegregate racially segregated schools,
policies that favor minorities when distributing goods or services
in short supply, actions that create majority-minority electoral
districts, peremptory strikes that remove potential jurors on the
basis of race, and others. Given the significant differences among
these contexts, it would be surprising if the law required an
identically strict legal test for evaluating the constitutionality
of race-based criteria as to each of them.

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

															   This context is not a context that
involves the use of race to decide who will receive goods or
services that are normally distributed on the basis of merit and
which are in short supply. It is not one in which race-conscious
limits stigmatize or exclude; the limits at issue do not pit the
races against each other or otherwise significantly exacerbate
racial tensions. They do not impose burdens unfairly upon members
of one race alone but instead seek benefits for members of all
races alike. The context here is one of racial limits that seek,
not to keep the races apart, but to bring them together.

															   The importance of these differences is clear
once one compares the present circumstances with other cases where
one or more of these negative features are present. See, e.g. , Strauder v. West Virginia , 100 U. S. 303 (1880); Yick Wo v. Hopkins , 118 U. S. 356 (1886); Brown , 347
U. S. 483 ; Loving v. Virginia , 388 U. S. 1 (1967); Regents of Univ. of Cal. v. Bakke , 438 U. S. 265 (1978); Batson v. Kentucky , 476 U. S. 79 (1986); Richmond v. J. A. Croson Co. , 488 U. S. 469 (1989); Shaw v. Reno , 509 U. S. 630 (1993); Adarand Constructors, Inc. v. Peńa , 515 U. S. 200 (1995); Grutter , supra; Gratz v. Bollinger , 539 U. S. 244 (2003); Johnson v. California , 543 U. S. 499 (2005).

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

															   These and related considerations convinced one
Ninth Circuit judge in the Seattle case to apply a standard of
constitutionality review that is less than “strict,” and to
conclude that this Court’s precedents do not require the contrary.
See 426 F. 3d 1162, 1193–1194 (2005) (Kozinski, J.,
concurring) (“That a student is denied the school of his choice may
be disappointing, but it carries no racial stigma and says nothing
at all about that individual’s aptitude or ability”). That judge is
not alone. Cf. Gratz , supra , at 301 (Ginsburg,
J., dissenting); Adarand , supra , at 243 (Stevens,
J., dissenting); Carter, When Victims Happen To Be Black, 97 Yale
L. J. 420, 433–434 (1988).

															   The view that a more lenient standard than
“strict scrutiny” should apply in the present context would not
imply abandonment of judicial efforts carefully to determine the
need for race-conscious criteria and the criteria’s tailoring in
light of the need. And the present context requires a court to
examine carefully the race-conscious program at issue. In doing so,
a reviewing judge must be fully aware of the potential dangers and
pitfalls that Justice Thomas and Justice Kennedy mention. See ante , at 11–12 (Thomas, J., concurring); ante , at
3, 17 (opinion of Kennedy, J.).

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

															   In my view, this contextual approach to
scrutiny is altogether fitting. I believe that the law requires
application here of a standard of review that is not “strict” in
the traditional sense of that word, although it does require the
careful review I have just described. See Gratz , supra , at 301 (Ginsburg, J., joined by Souter, J.,
dissenting); Adarand , supra , at 242–249 (Stevens,
J., joined by Ginsburg, J., dissenting); 426 F. 3d, at
1193–1194 (Kozinski, J., concurring). Apparently Justice Kennedy
also agrees that strict scrutiny would not apply in respect to
certain “race-conscious” school board policies. See ante ,
at 9 (“Executive and legislative branches, which for generations
now have considered these types of policies and procedures, should
be permitted to employ them with candor and with confidence that a
constitutional violation does not occur whenever a decisionmaker
considers the impact a given approach might have on students of
different races”).

															   Nonetheless, in light of Grutter and
other precedents, see, e.g. , Bakke , 438 U. S., at
290 (opinion of Powell, J.), I shall adopt the first alternative. I
shall apply the version of strict scrutiny that those cases embody.
I shall consequently ask whether the school boards in Seattle and
Louisville adopted these plans to serve a “compelling governmental
interest” and, if so, whether the plans are “narrowly tailored” to
achieve that interest. If the plans survive this strict review,
they would survive less exacting review a fortiori . Hence,
I conclude that the plans before us pass both parts of the strict
scrutiny test. Consequently I must conclude that the plans here are
permitted under the Constitution.

															III Applying the Legal Standard A Compelling Interest The principal interest
advanced in these cases to justify the use of race-based criteria
goes by various names. Sometimes a court refers to it as an
interest in achieving racial “diversity.” Other times a court, like
the plurality here, refers to it as an interest in racial
“balancing.” I have used more general terms to signify that
interest, describing it, for example, as an interest in promoting
or preserving greater racial “integration” of public schools. By
this term, I mean the school districts’ interest in eliminating
school-by-school racial isolation and increasing the degree to
which racial mixture characterizes each of the district’s schools
and each individual student’s public school experience. Regardless of its name,
however, the interest at stake possesses three essential elements.
First, there is a historical and remedial element: an interest in
setting right the consequences of prior conditions of segregation.
This refers back to a time when public schools were highly
segregated, often as a result of legal or administrative policies
that facilitated racial segregation in public schools. It is an
interest in continuing to combat the remnants of segregation caused
in whole or in part by these school-related policies, which have
often affected not only schools, but also housing patterns,
employment practices, economic conditions, and social attitudes. It
is an interest in maintaining hard-won gains. And it has its roots
in preventing what gradually may become the de facto resegregation of America’s public schools. See Part I, supra , at 4; Appendix A, infra. See also ante , at 17 (opinion of Kennedy, J.) (“This Nation has a
moral and ethical obligation to fulfill its historic commitment to
creating an integrated society that ensures equal opportunity for
all of its children”).

															   Second, there is an educational element: an
interest in overcoming the adverse educational effects produced by
and associated with highly segregated schools. Cf. Grutter , 539 U. S. , at 345 (Ginsburg, J.,
concurring). Studies suggest that children taken from those schools
and placed in integrated settings often show positive academic
gains. See, e.g. , Powell, Living and Learning: Linking
Housing and Education, in Pursuit of a Dream Deferred: Linking
Housing and Education Policy 15, 35 (J. Powell, G. Kearney, &
V. Kay eds. 2001) (hereinafter Powell); Hallinan, Diversity Effects
on Student Outcomes: Social Science Evidence, 59 Ohio St.
L. J. 733, 741–742 (1998) (hereinafter Hallinan).

															   Other studies reach different conclusions.
See, e.g. , D. Armor, Forced Justice (1995). See also ante , at 15–17 (Thomas, J., concurring). But the evidence
supporting an educational interest in racially integrated schools
is well established and strong enough to permit a democratically
elected school board reasonably to determine that this interest is
a compelling one.

															   Research suggests, for example, that black
children from segregated educational environments significantly
increase their achievement levels once they are placed in a more
integrated setting. Indeed in Louisville itself the achievement gap
between black and white elementary school students grew
substantially smaller (by seven percentage points) after the
integration plan was implemented in 1975. See Powell 35.
Conversely, to take another example, evidence from a district in
Norfolk, Virginia, shows that resegregated schools led to a decline
in the achievement test scores of children of all races. Ibid .

															   One commentator, reviewing dozens of studies
of the educational benefits of desegregated schooling, found that
the studies have provided “remarkably consistent” results, showing
that: (1) black students’ educational achievement is improved in
integrated schools as compared to racially isolated schools, (2)
black students’ educational achievement is improved in integrated
classes, and (3) the earlier that black students are removed from
racial isolation, the better their educational outcomes. See
Hallinan 741–742. Multiple studies also indicate that black alumni
of integrated schools are more likely to move into occupations
traditionally closed to African-Americans, and to earn more money
in those fields. See, e.g. , Schofield, Review of Research
on School Desegregation’s Impact on Elementary and Secondary School
Students, in Handbook of Research on Multicultural Education 597,
606–607 (J. Banks & C. Banks eds. 1995). Cf. W. Bowen & D.
Bok, The Shape of the River 118 (1998) (hereinafter Bowen &
Bok).

															   Third, there is a democratic element: an
interest in producing an educational environment that reflects the
“pluralistic society” in which our children will live. Swann , 402 U. S., at 16. It is an interest in helping our
children learn to work and play together with children of different
racial backgrounds. It is an interest in teaching children to
engage in the kind of cooperation among Americans of all races that
is necessary to make a land of three hundred million people one
Nation.

															   Again, data support this insight. See, e.g. , Hallinan 745; Quillian & Campbell, Beyond Black
and White: The Present and Future of Multiracial Friendship
Segregation, 68 Am. Sociological Rev. 540, 541 (2003) (hereinafter
Quillian & Campbell); Dawkins & Braddock, The Continuing
Significance of Desegregation: School Racial Composition and
African American Inclusion in American Society, 63 J. Negro Ed.
394, 401–403 (1994) (hereinafter Dawkins & Braddock); Wells
& Crain, Perpetuation Theory and the Long-Term Effects of
School Desegregation, 64 Rev. Educational Research 531, 550 (1994)
(hereinafter Wells & Crain).

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

															   For example, one study documented that “black
and white students in desegregated schools are less racially
prejudiced than those in segregated schools,” and that “interracial
contact in desegregated schools leads to an increase in interracial
sociability and friendship.” Hallinan 745. See also Quillian &
Campbell 541. Cf. Bowen & Bok 155. Other studies have found
that both black and white students who attend integrated schools
are more likely to work in desegregated companies after graduation
than students who attended racially isolated schools. Dawkins &
Braddock 401–403; Wells & Crain 550. Further research has shown
that the desegregation of schools can help bring adult communities
together by reducing segregated housing. Cities that have
implemented successful school desegregation plans have witnessed
increased interracial contact and neighborhoods that tend to become
less racially segregated. Dawkins & Braddock 403. These effects
not only reinforce the prior gains of integrated primary and
secondary education; they also foresee a time when there is less
need to use race-conscious criteria.

															   Moreover, this Court from Swann to Grutter has treated these civic effects as an important
virtue of racially diverse education. See, e.g. , Swann , supra , at 16; Seattle School Dist. No.
1 , 458 U. S., at 472–473. In Grutter, in the context
of law school admissions, we found that these types of interests
were, constitutionally speaking, “compelling.” See 539 U. S., at
330 (recognizing that Michigan Law School’s race-conscious
admissions policy “promotes cross-racial understanding, helps to
break down racial stereotypes, and enables [students] to better
understand persons of different races,” and pointing out that “the
skills needed in today’s increasingly global marketplace can only
be developed through exposure to widely diverse people, cultures,
ideas, and viewpoints” (internal quotation marks omitted;
alteration in original)).

															   In light of this Court’s conclusions in Grutter, the “compelling” nature of these interests in the
context of primary and secondary public education follows here a fortiori . Primary and secondary 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 of our days. As
Justice Marshall said, “unless our children begin to learn
together, there is little hope that our people will ever learn to
live together.” Milliken v. Bradley , 418 U. S. 717 , 783
(1974) (dissenting opinion).

															   And it was Brown, after all, focusing
upon primary and secondary schools, not Sweatt v. Painter , 339 U. S. 629 (1950),
focusing on law schools, or McLaurin v. Oklahoma State
Regents for Higher Ed. , 339 U. S. 637 (1950),
focusing on graduate schools, that affected so deeply not only
Americans but the world. R. Kluger, Simple Justice: The History of Brown v. Board of Education and Black America’s
Struggle for Equality, p. x (1975) (arguing that perhaps no other
Supreme Court case has “affected more directly the minds, hearts,
and daily lives of so many Americans”); Patterson, Brown v. Board of Education xxvii (2001) (identifying Brown as “the most eagerly awaited and dramatic judicial
decision of modern times”). See also Parents Involved VII, 426 F. 3d, at 1194 (Kozinski, J., concurring); Strauss,
Discriminatory Intent and the Taming of Brown , 56 U. Chi.
L. Rev. 935, 937 (1989) (calling Brown “the Supreme
Court’s greatest anti-discrimination decision”); Brief for United
States as Amicus Curiae in Brown, 347
U. S. 483 ; Dudziak, Brown as a Cold War Case, 91 J.
Am. Hist. 32 (2004); A Great Decision, Hindustan Times (New Dehli,
May 20, 1954), p. 5; USA Takes Positive Step, West African
Pilot (Lagos, May 22, 1954), p. 2 (stating that Brown is
an acknowledgment that the “United States should set an example for
all other nations by taking the lead in removing from its national
life all signs and traces of racial intolerance, arrogance or
discrimination”). Hence, I am not surprised that Justice Kennedy
finds that, “a district may consider it a compelling interest to
achieve a diverse student population,” including a racially diverse population. Ante , at 17–18.

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

															   The majority acknowledges that in prior cases
this Court has recognized at least two interests as compelling: an
interest in “remedying the effects of past intentional
discrimination,” and an interest in “diversity in higher
education.” Ante , at 12, 13. But the plurality does not
convincingly explain why those interests do not constitute a
“compelling interest” here. How do the remedial interests here
differ in kind from those at issue in the voluntary desegregation
efforts that Attorney General Kennedy many years ago described in
his letter to the President? Supra , at 19–20. How do the
educational and civic interests differ in kind from those that
underlie and justify the racial “diversity” that the law school
sought in Grutter , where this Court found a compelling
interest?

															   The plurality tries to draw a distinction by
reference to the well-established conceptual difference between de jure segregation (“segregation by state action”) and de facto segregation (“racial imbalance caused by other
factors”). Ante , at 28. But that distinction concerns what
the Constitution requires school boards to do, not what it permits them to do. Compare, e.g. , Green, 391 U. S., at 437–438 (“School boards … operating
state-compelled dual systems” have an “affirmative duty to take
whatever steps might be necessary to convert to a unitary system in
which racial discrimination would be eliminated root and branch”),
with, e.g. , Milliken , 418 U. S., at 745 (the
Constitution does not impose a duty to desegregate upon districts
that have not been “shown to have committed any constitutional
violation”).

															   The opinions cited by the plurality to justify
its reliance upon the de jure/de facto distinction only
address what remedial measures a school district may be
constitutionally required to undertake. See, e.g. , Freeman v. Pitts , 503 U. S. 467 , 495
(1992). As to what is permitted , nothing in our equal
protection law suggests that a State may right only those wrongs
that it committed. No case of this Court has ever relied upon the de jure/de facto distinction in order to limit what a
school district is voluntarily allowed to do. That is what is at
issue here. And Swann , McDaniel, Crawford , North Carolina Bd. of Ed. , Harris , and Bustop made one thing clear: significant as the difference
between de jure and de facto segregation may be
to the question of what a school district must do, that
distinction is not germane to the question of what a school
district may do.

															   Nor does any precedent indicate, as the
plurality suggests with respect to Louisville, ante , at
29, that remedial interests vanish the day after a federal court
declares that a district is “unitary.” Of course, Louisville
adopted those portions of the plan at issue here before a
court declared Louisville “unitary.” Moreover, in Freeman ,
this Court pointed out that in “one sense of the term, vestiges of
past segregation by state decree do remain in our society and in
our schools. Past wrongs to the black race, wrongs committed by the
State and in its name, are a stubborn fact of history. And stubborn
facts of history linger and persist.” 503 U. S., at 495. 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 the wisdom and desirability of returning
schools to local control, should deprive those local officials of
legal permission to use means they once found necessary to
combat persisting injustices.

															   For his part, Justice Thomas faults my
citation of various studies supporting the view that school
districts can find compelling educational and civic interests in
integrating their public schools. See ante , at 15–17, 23
(concurring opinion). He is entitled of course to his own opinion
as to which studies he finds convincing—although it bears mention
that even the author of some of Justice Thomas’ preferred studies
has found some evidence linking integrated learning
environments to increased academic achievement. Cf. ante ,
at 15–17 (opinion of Thomas, J.) (citing Armor & Rossell,
Desegregation and Resegregation in the Public Schools, in Beyond
the Color Line 239 (A. Thernstrom & S. Thernstrom eds. 2002);
Brief for Armor et al. as Amici Curiae , with
Rosen, Perhaps Not All Affirmative Action is Created Equal,
N. Y. Times, June 11, 2006 (quoting David Armor as commenting
“ ‘[w]e did find the [racial] achievement gap changing significantly ’ ” and acknowledging that he
“ ‘did find a modest association for math but not reading in
terms of racial composition and achievement, but there’s a big
state variation’ ” (emphasis added)). If we are to insist upon
unanimity in the social science literature before finding a
compelling interest, we might never find one. I believe only that
the Constitution allows democratically elected school boards to
make up their own minds as to how best to include people of all
races in one America.

															B Narrow Tailoring I next ask whether the plans
before us are “narrowly tailored” to achieve these “compelling”
objectives. I shall not accept the school board’s assurances on
faith, cf. Miller v. Johnson , 515 U. S. 900 , 920
(1995), and I shall subject the “tailoring” of their plans to
“rigorous judicial review.” Grutter , 539 U. S., at 388
(Kennedy, J., dissenting). Several factors, taken together,
nonetheless lead me to conclude that the boards’ use of
race-conscious criteria in these plans passes even the strictest
“tailoring” test.

															   First, the race-conscious
criteria at issue only help set the outer bounds of broad ranges. Cf. id., at 390 (Kennedy, J., dissenting)
(expressing concern about “narrow fluctuation band[s]”). They
constitute but one part of plans that depend primarily upon other,
nonracial elements. To use race in this way is not to set a
forbidden “quota.” See id., at 335 (“Properly understood,
a ‘quota’ is a program in which a certain fixed number or
proportion of opportunities are ‘reserved exclusively for certain
minority groups’ ” (quoting Croson , 488 U. S., at
496)).

															   In fact, the defining feature of both plans is
greater emphasis upon student choice. In Seattle, for example, in
more than 80% of all cases, that choice alone determines which high
schools Seattle’s ninth graders will attend. After ninth grade,
students can decide voluntarily to transfer to a preferred district
high school (without any consideration of race-conscious criteria). Choice , therefore, is the “predominant factor” in these
plans. Race is not. See Grutter , supra ,
at 393 (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 in question, or because
the racial makeup of the school falls within the broad range, or
because the student is a transfer applicant or has a sibling at the
school. In these respects, the broad ranges are less like a quota
and more like the kinds of “useful starting points” that this Court
has consistently found permissible, even when they set boundaries
upon voluntary transfers, and even when they are based upon a
community’s general population. See, e.g. , North
Carolina Bd. of Ed. v. Swann , 402 U. S. 43 , 46 (1971) (no “absolute
prohibition against [the] use” of mathematical ratios as a
“starting point”); Swann , 402 U. S., at 24–25 (approving
the use of a ratio reflecting “the racial composition of the whole
school system” as a “useful starting point,” but not as an
“inflexible requirement”). Cf. United States v. Montgomery County Bd. of Ed. , 395 U. S. 225 , 232
(1969) (approving a lower court desegregation order that “provided
that the [school] board must move toward a goal under which ‘in
each school the ratio of white to Negro faculty members is
substantially the same as it is throughout the system,’ ” and
“immediately” requiring “[t]he ratio of Negro to white teachers” in
each school to be equal to “the ratio of Negro to white teachers in
… the system as a whole”).

															   Second, broad-range limits on voluntary school
choice plans are less burdensome, and hence more narrowly tailored,
see Grutter, supra , at 341, than other race-conscious
restrictions this Court has previously approved. See, e.g. , Swann , supra , at 26–27; Montgomery Co. Bd. of Ed. , supra , at 232. Indeed,
the plans before us are more narrowly tailored than the
race-conscious admission plans that this Court approved in Grutter . Here, race becomes a factor only in a fraction of
students’ non-merit-based assignments—not in large numbers of
students’ merit-based applications. Moreover, the effect of
applying race-conscious criteria here affects potentially
disadvantaged students less severely, not more
severely, than the criteria at issue in Grutter .
Disappointed students are not rejected from a State’s flagship
graduate program; they simply attend a different one of the
district’s many public schools, which in aspiration and in fact are
substantially equal. Cf. Wygant , 476 U. S., at 283. And,
in Seattle, the disadvantaged student loses at most one year at the
high school of his choice. One will search Grutter in vain
for similarly persuasive evidence of narrow tailoring as the school
districts have presented here.

															   Third, the manner in which the school boards
developed these plans itself reflects “narrow tailoring.” Each plan
was devised to overcome a history of segregated public schools.
Each plan embodies the results of local experience and community
consultation. Each plan is the product of a process that has sought
to enhance student choice, while diminishing the need for mandatory
busing. And each plan’s use of race-conscious elements is diminished compared to the use of race in preceding
integration plans.

															   The school boards’ widespread consultation,
their experimentation with numerous other plans, indeed, the
40-year history that Part I sets forth, make clear that plans that
are less explicitly race-based are unlikely to achieve the board’s
“compelling” objectives. The history of each school system reveals
highly segregated schools, followed by remedial plans that involved
forced busing, followed by efforts to attract or retain students
through the use of plans that abandoned busing and replaced it with
greater student choice. Both cities once tried to achieve more
integrated schools by relying solely upon measures such as redrawn
district boundaries, new school building construction, and
unrestricted voluntary transfers. In neither city did these prior
attempts prove sufficient to achieve the city’s integration goals.
See Parts I–A and I–B, supra , at 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 with rigorous judicial
scrutiny. It simply recognizes that judges are not well suited to
act as school administrators. Indeed, in the context of school
desegregation, this Court has repeatedly stressed the importance of
acknowledging that local school boards better understand their own
communities and have a better knowledge of what in practice will
best meet the educational needs of their pupils. See Milliken , 418 U. S., at 741–42 (“No single tradition in
public education is more deeply rooted than local control over the
operation of schools; local autonomy has long been thought
essential both to the maintenance of community concern and support
for public schools and to quality of the educational process”). See
also San Antonio Independent School Dist. v. Rodriguez , 411 U. S. 1 , 49–50 (1973)
(extolling local control for “the opportunity it offers for
participation in the decisionmaking process that determines how . .
. local tax dollars will be spent. Each locality is free to tailor
local programs to local needs. Pluralism also affords some
opportunity for experimentation, innovation, and a healthy
competition for educational excellence”); Epperson v. Arkansas , 393 U. S. 97 , 104 (1968)
(“Judicial interposition in the operation of the public school
system of the Nation raises problems requiring care and restraint.
. . . By and large, public education in our Nation is committed to
the control of state and local authorities”); Brown v. Board of Education , 349 U. S. 294 , 299
(1955) (Brown II) (“Full implementation of these
constitutional principles may require solution of varied local
school problems. School authorities have the primary responsibility
for elucidating, assessing, and solving these problems; courts will
have to consider whether the action of school authorities
constitutes good faith implementation of the governing
constitutional principles”).

															   Experience in Seattle and Louisville is
consistent with experience elsewhere. In 1987, the U. S. Commission
on Civil Rights studied 125 large school districts seeking
integration. It reported that most districts—92 of them, in
fact—adopted desegregation policies that combined two or more
highly race-conscious strategies, for example, rezoning or pairing.
See Welch 83–91.

															   Having looked at dozens of amicus briefs, public reports, news stories, and the records in many of
this Court’s prior cases, which together span 50 years of
desegregation history in school districts across the Nation, I have
discovered many examples of districts that sought integration
through explicitly race-conscious methods, including mandatory
busing. Yet, I have found no example or model that would
permit this Court to say to Seattle and to Louisville: “Here is an
instance of a desegregation plan that is likely to achieve your
objectives and also makes less use of race-conscious criteria than
your plans.” And, if the plurality cannot suggest such a model—and
it cannot—then it seeks to impose a “narrow tailoring” requirement
that in practice would never be met.

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

															   The plurality also points to the school
districts’ use of numerical goals based upon the racial breakdown
of the general school population, and it faults the districts for
failing to prove that no other set of numbers will work .
See ante , at 18–20. The plurality refers to no case in
support of its demand. Nor is it likely to find such a case. After
all, this Court has in many cases explicitly permitted districts to
use target ratios based upon the district’s underlying population.
See, e.g. , Swann , 402 U. S., at 24–25; North
Carolina Bd. of Ed. , 402 U. S., at 46; Montgomery County
Bd. of Ed. , 395 U. S., at 232. The reason is obvious: In
Seattle, where the overall student population is 41% white,
permitting 85% white enrollment at a single school would make it
much more likely that other schools would have very few white
students, whereas in Jefferson County, with a 60% white enrollment,
one school with 85% white students would be less likely to skew
enrollments elsewhere.

															   Moreover, there is research-based evidence
supporting, for example, that a ratio no greater than 50%
minority—which is Louisville’s starting point, and as close as
feasible to Seattle’s starting point—is helpful in limiting the
risk of “white flight.” See Orfield, Metropolitan School
Desegregation: Impacts on Metropolitan Society, in Pursuit of a
Dream Deferred: Linking Housing and Education Policy 121, 125.
Federal law also assumes that a similar target percentage will help
avoid detrimental “minority group isolation.” See No Child Left
Behind Act of 2001, Title V, Part C, 115 Stat. 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 the boards to use as a “starting point”? Are they to
spend days, weeks, or months seeking independently to validate the
use of ratios that this Court has repeatedly authorized in prior
cases? Are they to draw numbers out of thin air? These districts
have followed this Court’s holdings and advice in “tailoring” their
plans. That, too, strongly supports the lawfulness of 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 over the past 50 years gives the districts, or this Court,
any reason to believe that another method is possible to accomplish
these goals. Nevertheless, Justice Kennedy suggests that school
boards:

															“may pursue the goal of bringing together students
of diverse backgrounds and races through other means, including
strategic site selection of new schools; drawing attendance zones
with general recognition of the demographics of neighborhoods;
allocating resources for special programs; recruiting students and
faculty in a targeted fashion; and tracking enrollments,
performance, and other statistics by race.” Ante , at
8.

															But, as to “strategic site selection,” Seattle has
built one new high school in the last 44 years (and that
specialized school serves only 300 students). In fact, six of the
Seattle high schools involved in this case were built by the
1920’s; the other four were open by the early 1960’s. See generally
N. Thompson & C. Marr, Building for Learning: Seattle Public
Schools Histories, 1862–2000 (2002). As to “drawing” neighborhood
“attendance zones” on a racial basis, Louisville tried it, and it
worked only when forced busing was also part of the plan. See supra , at 12–14. As to “allocating resources for special
programs,” Seattle and Louisville have both experimented with this;
indeed, these programs are often referred to as “magnet schools,”
but the limited desegregation effect of these efforts extends at
most to those few schools to which additional resources are
granted. In addition, there is no evidence from the experience of
these school districts that it will make any meaningful impact. See
Brief for Respondents in No. 05–908, p. 42. As to “recruiting
faculty” on the basis of race, both cities have tried, but only as
one part of a broader program. As to “tracking enrollments,
performance and other statistics by race,” tracking reveals the problem; it does not cure it.

															   Justice Kennedy sets forth two
additional concerns related to “narrow tailoring.” In respect to
Louisville, he says first that officials stated (1) that
kindergarten assignments are not subject to the race-conscious
guidelines, and (2) that the child at issue here was denied
permission to attend the kindergarten he wanted because of those
guidelines. Both, he explains, cannot be true. He adds that this
confusion illustrates that Louisville’s assignment plan (or its
explanation of it to this Court) is insufficiently precise in
respect to “who makes the decisions,” “oversight,” “the precise
circumstances in which an assignment decision” will be made; and
“which of two similarly situated children will be subjected to a
given race-based decision.” Ante , at 4.

															   The record suggests, however, that the child
in question was not assigned to the school he preferred because he
missed the kindergarten application deadline. See App. in 05–915,
p. 20. After he had enrolled and after the academic year had begun,
he then applied to transfer to his preferred school after the
kindergarten assignment deadline had passed, id. , at 21,
possibly causing school officials to treat his late request as an
application to transfer to the first grade, in respect to which the
guidelines apply. I am not certain just how the remainder of
Justice Kennedy’s concerns affect the lawfulness of the Louisville
program, for they seem to be failures of explanation, not of
administration. But Louisville should be able to answer the
relevant questions on remand.

															   Justice Kennedy’s second concern is directly
related to the merits of Seattle’s plan: Why does Seattle’s plan
group Asian-Americans, Hispanic-Americans, Native-Americans, and
African-Americans together, treating all as similar minorities? Ante , at 6–7. The majority suggests that Seattle’s
classification system could permit a school to be labeled “diverse”
with a 50% Asian-American and 50% white student body, and no
African-American students, Hispanic students, or students of other
ethnicity. 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 from the imagination. In fact, Seattle
apparently began to treat these different minority groups alike in
response to the federal Emergency School Aid Act’s requirement 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
of classification makes sense insofar as Seattle’s experience
indicates that the relevant circumstances in respect to each of
these different minority groups are roughly similar, e.g. ,
in terms of residential patterns, and call for roughly similar
responses. This is confirmed by the fact that Seattle has been able
to achieve a desirable degree of diversity without the greater emphasis on race that drawing fine lines among
minority groups would require. Does the plurality’s view of the
Equal Protection Clause mean that courts must give no weight to
such a board determination? Does it insist upon especially strong
evidence supporting inclusion of multiple minority groups in an
otherwise lawful government minority-assistance program? If so, its
interpretation threatens to produce divisiveness among minority
groups that is incompatible with the basic objectives of the
Fourteenth Amendment. Regardless, the plurality cannot object that
the constitutional defect is the individualized use of race and
simultaneously object that not enough account of individuals’ race
has been taken.

															   Finally, I recognize that the Court seeks to
distinguish Grutter from these cases by claiming that Grutter arose in “ ‘the context of higher
education.’ ” Ante , at 16. But that is not a
meaningful legal distinction. I have explained why I do not believe
the Constitution could possibly find “compelling” the provision of
a racially diverse education for a 23-year-old law student but not
for a 13-year-old high school pupil. See supra , at 46–48.
And I have explained how the plans before us are more narrowly
tailored than those in Grutter . See supra , at 45.
I add that one cannot find a relevant distinction in the fact that
these school districts did not examine the merits of applications
“individual[ly].” See ante , at 13–15. The context here
does not involve admission by merit; a child’s academic, artistic,
and athletic “merits” are not at all relevant to the child’s
placement. These are not affirmative action plans, and hence
“individualized scrutiny” is simply beside the point.

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

															IV Direct Precedent Two additional precedents
more directly related to the plans here at issue reinforce my
conclusion. The first consists of the District Court determination
in the Louisville case when it dissolved its desegregation order
that there was “overwhelming evidence of the Board’s good faith
compliance with the desegregation Decree and its underlying
purposes,” indeed that the Board had “treated the ideal of an
integrated system as much more than a legal obligation—they
consider it a positive, desirable policy and an essential element
of any well-rounded public school education.” Hampton II , 102
F. Supp. 2d, at 370. When the court made this determination in
2000, it did so in the context of the Louisville desegregation plan
that the board had adopted in 1996. That plan, which took effect
before 1996, is the very plan that in all relevant respects is in
effect now and is the subject of the present challenge.

															   No one claims that (the relevant
portion of) Louisville’s plan was unlawful in 1996 when Louisville
adopted it. To the contrary, there is every reason to believe that
it represented part of an effort to implement the 1978
desegregation order. But if the plan was lawful when it was first
adopted and if it was lawful the day before the District Court
dissolved its order, how can the plurality now suggest that it
became unlawful the following day? Is it conceivable that
the Constitution, implemented through a court desegregation order,
could permit (perhaps require ) the district to make use of
a race-conscious plan the day before the order was dissolved and
then forbid the district to use the identical plan the day
after? See id., at 380 (“The very analysis for dissolving
desegregation decrees supports continued maintenance of a
desegregated system as a compelling state interest”). The Equal
Protection Clause is not incoherent. And federal courts would
rightly hesitate to find unitary status if the consequences of the
ruling were so dramatically disruptive.

															   Second, Seattle School Dist. No. 1 , 458
U. S. 457 , is directly on point. That case involves the
original Seattle Plan, a more heavily race-conscious
predecessor of the very plan now before us. In Seattle
School Dist. No. 1 , this Court struck down a state referendum
that effectively barred implementation of Seattle’s desegregation
plan and “burden[ed] all future attempts to integrate Washington
schools in districts throughout the State.” Id. , at
462–463, 483. Because the referendum would have prohibited the
adoption of a school-integration plan that involved mandatory
busing, and because it would have imposed a special burden on
school integration plans (plans that sought to integrate previously
segregated schools), the Court found it unconstitutional. Id ., at 483–487.

															   In reaching this conclusion, the Court did not
directly address the constitutional merits of the underlying
Seattle plan. But it explicitly cited Swann ’s statement
that the Constitution permitted a local district to adopt such a
plan. 458 U. S., at 472, n. 15. It also cited to Justice
Powell’s opinion in Bakke , approving of the
limited use of race-conscious criteria in a university-admissions
“affirmative action” case. 458 U. S., at 472, n. 15 . In
addition, the Court stated that “[a]ttending an ethnically diverse
school,” id. , at 473, could help prepare “minority
children for citizenship in our pluralistic society,” hopefully
“teaching members of the racial majority to live in 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 a referendum that would have interfered with
the implementation of this plan thought that the integration plan
it sought to preserve was itself an unconstitutional plan.
And if Seattle School Dist. No. 1 is premised upon the
constitutionality of the original Seattle Plan, it is equally
premised upon the constitutionality of the present plan, for the
present plan is the Seattle Plan, modified only insofar as
it places even less emphasis on race-conscious elements
than its predecessors.

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

															V Consequences The Founders meant the
Constitution as a practical document that would transmit its basic
values to future generations through principles that remained
workable over time. Hence it is important to consider the potential
consequences of the plurality’s approach, as measured against the
Constitution’s objectives.    To do so provides
further reason to believe that the plurality’s approach is legally
unsound. For one thing, consider the
effect of the plurality’s views on the parties before us and on
similar school districts throughout the Nation. Will Louisville and
all similar school districts have to return to systems like
Louisville’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 almost totally black. Ibid. The districts’ past and current plans are not
unique. They resemble other plans, promulgated by hundreds of local
school boards, which have attempted a variety of desegregation
methods that have evolved over time in light of experience. A 1987
Civil Rights Commission Study of 125 school districts in the Nation
demonstrated the breadth and variety of desegregation plans:

															   “The [study] documents almost 300
desegregation plans that were implemented between 1961 and 1985.
The degree of heterogeneity within these districts is immediately
apparent. They are located in every region of the country and range
in size from Las Cruces, New Mexico, with barely over 15,000
students attending 23 schools in 1968, to New York City, with more
than one million students in 853 schools. The sample includes
districts in urban areas of all sizes, suburbs ( e.g. ,
Arlington County, Virginia) and rural areas ( e.g. ,
Jefferson Parish, Louisiana, and Raleigh County, West Virginia). It
contains 34 countywide districts with central cities (the 11
Florida districts fit this description, plus Clark County, Nevada
and others) and a small number of consolidated districts (New
Castle County, Delaware and Jefferson County, Kentucky).

															   “The districts also vary in their racial
compositions and levels of segregation. Initial plans were
implemented in Mobile, Alabama and Mecklenburg County, North
Carolina, and in a number of other southern districts in the face
of total racial segregation. At the other extreme, Santa Clara,
California had a relatively even racial distribution prior to its
1979 desegregation plan. When the 1965 plan was designed for
Harford County, Maryland, the district was 92 percent white.
Compton, California, on the other hand, became over 99 percent
black in the 1980s, while Buffalo, New York had a virtual 50–50
split between white and minority students prior to its 1977
plan.

															   “It is not surprising to find a large number
of different desegregation strategies in a sample with this much
variation.” Welch 23 (footnotes omitted).

															A majority of these desegregation techniques
explicitly considered a student’s race. See id. , at 24–28.
Transfer plans, for example, allowed students to shift from a
school in which they were in the racial majority to a school in
which 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 were permitted to transfer to
designated receiver schools. Id. , at 25. Fifty-three of
the 125 studied districts used transfers as a component of their
plans. Id., at 83–91.

															   At the state level, 46 States and
Puerto Rico have adopted policies that encourage or require local
school districts to enact interdistrict or intradistrict open
choice plans. Eight of those States condition approval of transfers
to another school or district on whether the transfer will produce
increased racial integration. Eleven other States require local
boards to deny transfers that are not in compliance with the local
school board’s desegre- gation plans. See Education Commission of
the States, Open Enrollment: 50-State Report (2007), online at
http://mb2.ecs.org/reports/Report.aspx?id=268.

															   Arkansas, for example, provides by statute
that “[n]o student may transfer to a nonresident district where the
percentage of enrollment for the student’s race 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 Ohio
statute provides, in respect to student choice, that each school
district must establish “[p]rocedures to ensure that an appropriate
racial balance is maintained in the district schools.” Ohio Rev.
Code Ann. §3313.98(B)(2)(b)(iii) (Lexis Supp. 2006). Ohio adds that
a “district may object to the enrollment of a native student in an
adjacent or other district in 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 balance.”
Conn. Gen. Stat. §10–266aa(b)(2) (2007). Connecticut law requires
each school district to submit racial group population figures to
the State Board of Education. §10–226a. Another Connecticut
regulation provides that “[a]ny school in which the Proportion for
the School falls outside of a range from 25 percentage points less
to 25 percentage points more than the Comparable Proportion for the
School 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
racial imbalance, which plan may include “mandatory pupil
reassignment.” §§10–226e–5(a) and (c)(4).

															   Interpreting that State’s Constitution, the
Connecticut Supreme Court has held legally inadequate the reliance
by a local school district solely upon some of the techniques
Justice Kennedy today recommends ( e.g. , reallocating
resources, etc.). See Sheff v. O’Neill , 238 Conn.
1, 678 A. 2d 1267 (1996). The State Supreme Court wrote:
“Despite the initiatives undertaken by the defendants to alleviate
the severe racial and ethnic disparities among school districts,
and despite the fact that the defendants did not intend to create
or maintain these disparities, the disparities that continue to
burden the education of the plaintiffs infringe upon their
fundamental state constitutional right to a substantially equal
educational opportunity.” Id. , at 42, 678 A. 2d, at
1289.

															   At a minimum, the plurality’s views would
threaten a surge of race-based litigation. Hundreds of state and
federal statutes and regulations use racial classifications for
educational or other purposes. See supra , at 27. In many
such instances, the contentious force of legal challenges to these
classifications, meritorious or not, would displace earlier
calm.

															   The wide variety of different integration
plans that school districts use throughout the Nation suggests that
the problem of racial segregation in schools, including de
facto segregation, is difficult to solve. The fact that many
such plans have used explicitly racial criteria suggests that such
criteria have an important, sometimes necessary, role to play. The
fact that the controlling opinion would make a school district’s
use of such criteria often unlawful (and the plurality’s
“colorblind” view would make such use always unlawful) suggests
that today’s opinion will require setting aside the laws of several
States and many local communities.

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

															   I use the words “may need” here deliberately.
The plurality, or at least those who follow Justice Thomas’
“ ‘color-blind’ ” approach, see ante , at 26–27
(Thomas, J., concurring); Grutter , 539 U. S., at 353–354
(Thomas, J., concurring in part and dissenting in part), may feel
confident that, to end invidious discrimination, one must end all governmental use of race-conscious criteria including
those with inclusive objectives. See ante , at 40–41
(plurality opinion); see also ante , at 26 (Thomas, J.,
concurring). By way of contrast, I do not claim to know how best to
stop harmful discrimination; how best to create a society that
includes all Americans; how best to overcome our serious problems
of increasing de facto segregation, troubled inner city
schooling, and poverty correlated with race. But, as a judge, I do
know that the Constitution does not authorize judges to dictate
solutions to these problems. Rather, the Constitution creates a
democratic political system through which the people themselves
must together find answers. And it is for them to debate how best
to educate the Nation’s children and how best to administer
America’s schools to achieve that aim. The Court should leave them
to their work. And it is for them to decide, to quote the
plurality’s slogan, whether the best “way to stop discrimination on
the basis of race is to stop discriminating on the basis of race.” Ante , at 40–41. See also Parents Involved VII ,
426 F. 3d, at 1222 (Bea, J., dissenting) (“The way to end
racial discrimination is to stop discriminating by race”). That is
why the Equal Protection Clause outlaws invidious discrimination,
but does not similarly 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 Adarand
Constructors, Inc. , 515 U. S., at 237 (“[S]trict scrutiny” in
this context is “[not] ‘strict in theory, but fatal in fact’ ”
(quoting Fullilove , 448 U. S., at 519 (Marshall, J.,
concurring in judgment))). Today, however, the Court restricts (and
some Members would eliminate) that leeway. I fear the consequences
of doing so for the law, for the schools, for the democratic
process, and for America’s efforts to create, out of its diversity,
one Nation.

															VI Conclusions To show that the school
assignment plans here meet the requirements of the Constitution, I
have written at exceptional length. But that length is necessary. I
cannot refer to the history of the plans in these cases to justify
the use of race-conscious criteria without describing that history
in full. I cannot rely upon Swann ’s statement that the use of
race-conscious limits is permissible without showing, rather than
simply asserting, that the statement represents a constitutional
principle firmly rooted in federal and state law. Nor can I explain
my disagreement with the Court’s holding and the plurality’s
opinion, without offering a detailed account of the arguments they
propound and the consequences they risk.

															   Thus, the opinion’s reasoning is
long. But its conclusion is short: The plans before us satisfy the
requirements of the Equal Protection Clause. And it is the
plurality’s opinion, not this dissent that “fails to ground the
result it would reach in law.” Ante , at 28.

															   Four basic considerations have led me to this
view. First , the histories of Louisville and Seattle
reveal complex circumstances and a long tradition of conscientious
efforts by local school boards to resist racial segregation in
public schools. Segregation at the time of Brown gave way
to expansive remedies that included busing, which in turn gave rise
to fears of white flight and resegregation. For decades now, these
school boards have considered and adopted and revised assignment
plans that sought to rely less upon race, to emphasize greater
student choice, and to improve the conditions of all schools for
all students, no matter the color of their skin, no matter where
they happen to reside. The plans under review—which are less
burdensome, more egalitarian, and more effective than prior
plans—continue in that tradition. And their history reveals school
district goals whose remedial, educational, and democratic elements
are inextricably intertwined each with the others. See Part I, supra , at 2–21. Second , since this Court’s decision in Brown , the law has consistently and unequivocally approved
of both voluntary and compulsory race-conscious measures to combat
segregated schools. The Equal Protection Clause, ratified following
the Civil War, has always distinguished in practice between state
action that excludes and thereby subordinates racial minorities and
state action that seeks to bring together people of all races. From Swann to Grutter , this Court’s decisions have
emphasized this distinction, recognizing that the fate of race
relations in this country depends upon unity among 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 (Marshall, J., dissenting).
See also C. Sumner, Equality Before the Law: Unconstitutionality of
Separate Colored Schools in Massachusetts, in 2 The Works of
Charles Sumner 327, 371 (1849) (“The law contemplates not only that
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, are supported by
compelling state interests and are narrowly tailored to accomplish
those goals. Just as diversity in higher education was deemed
compelling in Grutter , diversity in public primary and
secondary schools—where there is even more to gain—must be, a
fortiori , a compelling state interest. Even apart from Grutter , five Members of this Court agree that “avoiding
racial isolation” and “achiev[ing] 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 that Seattle and Louisville have not
done enough to demonstrate that their present plans are necessary
to continue upon the path set by Brown . These plans are more “narrowly tailored” than the race-conscious law
school admissions criteria at issue in Grutter . Hence,
their lawfulness follows a fortiori from this Court’s
prior decisions. See Parts III–IV, supra , at 37–57. Fourth , the plurality’s approach
risks serious harm to the law and for the Nation. Its view of the
law rests either upon a denial of the distinction between
exclusionary and inclusive use of race-conscious criteria in the
context of 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 of local 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 unanimous
pronouncements concerning desegregation. Today, they cannot.
Yesterday, school boards had available to them a full range of
means to combat segregated schools. Today, 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 and
more—make clear that the compelling interest here is stronger than
in Grutter . The plans here are more narrowly tailored than
the law school admissions program there at issue. Hence, applying Grutter ’s strict test, their lawfulness follows a
fortiori . To hold to the contrary is to transform that test
from “strict” to “fatal in fact”—the very opposite of what Grutter said. And what has happened to Swann? To McDaniel? To Crawford? To Harris? To School Committee of Boston? To Seattle School Dist.
No. 1? After decades of vibrant life, they would all, under
the plurality’s logic, be written out of the law.

															   And what of respect for democratic local
decisionmaking by States and school boards? For several decades
this Court has rested its public school decisions upon Swann ’s basic view that the Constitution grants local
school districts a significant degree of leeway where the inclusive
use of race-conscious criteria is at issue. Now localities will
have to 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 the Nation’s people? Instead of
accommodating different good-faith visions of our country and our
Constitution, today’s holding upsets settled expectations, creates
legal uncertainty, and threatens to produce considerable further
litigation, aggravating race-related conflict.

															   And what of the long history and moral vision
that the Fourteenth Amendment itself embodies? The plurality cites
in support those who argued in Brown against segregation,
and Justice Thomas likens the approach that I have taken to that of
segregation’s defenders. See ante , at 39–41 (plurality
opinion) (comparing Jim Crow segregation to Seattle and
Louisville’s integration polices); ante , at 28–32 (Thomas,
J., concurring). But segregation policies did not simply tell
schoolchildren “where they could and could not go to school based
on the color of their skin,” ante , at 40 (plurality
opinion); they perpetuated a caste system rooted in the
institutions of slavery and 80 years of legalized subordination.
The lesson of history, see ante , at 39 (plurality
opinion), is not that efforts to continue racial segregation are
constitutionally indistinguishable from efforts to achieve racial
integration. Indeed, it is a cruel distortion of history to compare
Topeka, Kansas, in the 1950’s to Louisville and Seattle in the
modern day—to equate the plight of Linda Brown (who was ordered to
attend a Jim Crow school) to the circumstances of Joshua McDonald
(whose request to transfer to a school closer to home was initially
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
not approach, in degree or in kind, the terrible harms of slavery,
the resulting caste system, and 80 years of legal racial
segregation.

															*  *  *

															   Finally, what of the hope and
promise of Brown? For much of this Nation’s history, the
races remained divided. It was not long ago that people of
different races drank from separate fountains, rode on separate
buses, and studied in separate schools. In this Court’s finest
hour, Brown v. Board of Education challenged this
history and helped to change it. For Brown held out a
promise. It was a promise embodied in three Amendments designed to
make citizens of slaves. It was the promise of true racial
equality—not as a matter of fine words on paper, but as a matter of
everyday life in the Nation’s cities and schools. It was about the
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 terms of how we actually live.

															   Not everyone welcomed this
Court’s decision in Brown . Three years after that decision
was handed down, the Governor of Arkansas ordered state militia to
block the doors of a white schoolhouse so that black children could
not enter. The President of the United States dispatched the 101st
Airborne Division to Little Rock, Arkansas, and federal troops were
needed to enforce a desegregation decree. See Cooper v. Aaron , 358 U.
S. 1 (1958). Today, almost 50 years later, attitudes toward
race in this Nation have changed dramatically. Many parents, white
and black alike, want their children to attend schools with
children of different races. Indeed, the very school districts that
once spurned integration now strive for it. The long history of
their efforts reveals the complexities and difficulties they have
faced. And in light of those challenges, they have asked us not to
take from their hands the instruments they have used to rid their
schools of racial segregation, instruments that they believe are
needed to overcome the problems of cities divided by race and
poverty. The plurality would decline their modest request.

															   The plurality is wrong to do so. The last
half-century has witnessed great strides 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 decision that the Court and the Nation will come
to regret.

															   I must dissent.

															APPENDIXES TO OPINION OF Breyer, J. A Resegregation
Trends Percentage of Black Students in
90–100 Percent Nonwhite and Majority Nonwhite Public Schools by
Region, 1950–1954 to 2000, Fall Enrollment Region 1950–1954 1960–1961 1968 1972 1976 1980 1989 1999 2000 Percentage in 90–100%
Nonwhite Schools Northeast — 40 42.7 46.9 51.4 48.7 49.8 50.2 51.2 Border 100 59 60.2 54.7 42.5 37.0 33.7 39.7 39.6 South 100 100 77.8 24.7 22.4 23.0 26.0 31.1 30.9 Midwest 53 56 58.0 57.4 51.1 43.6 40.1 45.0 46.3 West — 27 50.8 42.7 36.3 33.7 26.7 29.9 29.5 U.
S. 64.3 38.7 35.9 33.2 33.8 37.4 37.4 Percentage in
50–100% Nonwhite Schools Northeast — 62 66.8 69.9 72.5 79.9 75.4 77.5 78.3 Border 100 69 71.6 67.2 60.1 59.2 58.0 64.8 67.0 South 100 100 80.9 55.3 54.9 57.1 59.3 67.3 69.0 Midwest 78 80 77.3 75.3 70.3 69.5 69.4 67.9 73.3 West — 69 72.2 68.1 67.4 66.8 67.4 76.7 75.3 U. S. 76.6 63.6 62.4 62.9 64.9 70.1 71.6 Source: C. Clotfelter, After Brown: The
Rise and Retreat of School Desegregation 56 (2004) (Table
2.1). Changes in the Percentage of White Students in
Schools Attended by the Average Black Student by State, 1970–2003
(includes States with 5% or greater enrollment of black students in
1970 and 1980) %
White % White Students in School of Average
Black Student Change 2003 1970 1980 1991 2003 1970–1980 1980–1991 1991–2003 Alabama 60 33 38 35 30 5 -3 -5 Arkansas 70 43 47 44 36 4 -3 -8 California 33 26 28 27 22 2 -1 -5 Connecticut 68 44 40 35 32 -4 -5 -3 Delaware 57 47 69 65 49 22 -4 -16 Florida 51 43 51 43 34 8 -8 -9 Georgia 52 35 38 35 30 3 -3 -5 Illinois 57 15 19 20 19 4 1 -1 Indiana 82 32 39 47 41 7 8 -6 Kansas 76 52 59 58 51 7 -1 -7 Kentucky 87 49 74 42 65 25 -2 -7 Louisiana 48 31 33 32 27 2 -1 -5 Maryland 50 30 35 29 23 5 -6 -6 Massachusetts 75 48 50 45 38 2 -5 -7 Michigan 73 22 23 22 22 1 -1 0 Mississippi 47 30 29 30 26 -1 1 -4 Missouri 78 21 34 40 33 13 6 -7 Nebraska 80 33 66 62 49 33 -4 -13 New
Jersey 58 32 26 26 25 -6 0 -1 New
York 54 29 23 20 18 -6 -3 -2 Nevada 51 56 68 62 38 12 -6 -24 N.
Carolina 58 49 54 51 40 5 -3 -11 Ohio 79 28 43 41 32 15 -2 -9 Oklahoma 61 42 58 51 42 16 -7 -9 Pennsylvania 76 28 29 31 30 1 2 -1 S.
Carolina 54 41 43 42 39 2 -1 -3 Tennessee 73 29 38 36 32 9 -2 -4 Texas 39 31 35 35 27 4 0 -8 Virginia 61 42 47 46 41 5 -1 -5 Wisconsin 79 26 45 39 29 19 -6 -10 Source: G. Orfield & C.
Lee, Racial Transformation and the Changing Nature of Segregation
18 (Table 8) (Jan. 2006), (Civil Rights Project), online at
http://www.civilrightspro
ject.harvard.edu/research/deseg/Racial_Transformation.pdf. Percentage of
White Students in Schools Attended by the Average Black Student,
1968–2000 [Graphic omitted; see
printed
opinion] Source:
Modified from E. Frankenberg, C. Lee, & G. Orfield, A
Multiracial Society with Segregated Schools: Are We Losing the
Dream?, p. 30, fig. 5 (Jan. 2003), online at
http://www.civilrightsproject.harvard.edu/ research / reseg03 /Are WeLosingtheDream.pdf
(Frankenberg, Lee, & Orfield) (using U. S. Dept. of Education
and National Center for Education Statistics Common Core
data). Percentage of Students in Minority Schools by Race,
2000–2001 [Graphic
omitted; see printed opinion] Source: Id. , at 28, fig.
4. B Sources for Parts I–A and
I–B Part I–A:
Seattle Section 1.
Segregation ¶1
C. Schmid & W. McVey, Growth and Distribution of Minority Races
in Seattle, Washington, 3, 7–9 (1964); F. Hanawalt & R.
Williams, The History of 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); D. Pieroth, Desegregating the
Public Schools, Seattle, Washington, 1954–1968, p. 6
(Dissertation Draft 1979) (hereinafter
Pieroth). Section 2. Preliminary Challenges, 1956 to
1969 ¶1
Pieroth 32, 41; Hanawalt
4. ¶2
Hanawalt
11–13. ¶3 Id ., at 5, 13,
27. Section 3. The NAACP’s First Legal Challenge and Seattle’s
Response, 1969 to
1977 ¶1
Complaint in Adams v. Forbes Bottomly , Civ. No.
6704 (WD Wash., 1969),
pp. 10–11. ¶2 Id. , at 10,
14–15. ¶3
Planning and Evaluation Dept., Seattle Public Schools, The Plan
Adopted by the Seattle School Board to Desegregate Fifth, Sixth,
Seventh, and Eighth Grade Pupils in the Garfield, Lincoln, and
Roosevelt High School Districts by September, 1971, pp. 6, 11
(on file with the University of Washington Library); see generally
Siqueland 12–15; Hanawalt
18–20. ¶4
Siqueland 5, 7,
21. Section 4. The NAACP’s Second Legal Challenge , 1977 ¶1
Administrative Complaint in Seattle Branch, NAACP v. Seattle School Dist. No. 1 , pp. 2–3 (OCR, Apr. 22,
1977) (OCR Complaint) (filed with Court as Exhibit in Seattle
School Dist. No. 1 , 458
U. S. 457 ); see generally Siqueland
23–24 . ¶2
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 Kiner Affidavit in Seattle School Dist. No.
1 , supra . Section 5. The Seattle Plan: Mandatory Busing, 1978 to
1988 ¶1
See generally Seattle School Dist. No. 1 , supra, at 461; Seattle Public Schools Desegregation Planning Office,
Proposed Alternative Desegregation Plans: Options for Eliminating
Racial Imbalance by the 1979-80 School Year (Sept. 1977) (filed
with the Court as Exh. B to Roe Affidavit in Seattle School
Dist. No. 1 , supra ); Hanawalt 36–38, 40; Siqueland 3,
184, Table
4. ¶2 Id., at 151–152; Hanawalt 37–38; Seattle School Dist.
No. 1 , supra, at 461; Complaint and Motion to Dismiss
or Affirm in Seattle School Dist. No. 1 , supra . ¶3 Seattle School Dist. No. 1, supra, at 461; Hanawalt
40. ¶4
See generally Seattle School Dist. No. 1,
supra. Section 6. Student Choice, 1988 to
1998 ¶1
L. Kohn, Priority Shift: The Fate of Mandatory Busing for School
Desegregation in Seattle and the Nation 27–30, 32 (Mar.
1996). ¶2 Id., at
32–34. Section 7. The Current Plan, 1999 to the
Present ¶1
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). ¶2
App. in No. 05–908, at 39–42; Research, Evaluation and Assessment,
Student Information Services Office, Seattle Public Schools Data
Profile: DistrictSummary December 2005, online at
http://www.seattleschools.org/ area/siso/disprof/2005/DP05all.pdf;
Brief for Respond- ents in No. 05–908, at 9–10, 47; App. in No.
05–908, at 309a; School Board Report, School Choices and
Assignments 2005–2006 School Year (Apr. 2005), online at
http:// www.seattleschools.org/ area/ facilties&nbhyph;plan/ Choice/ 05&nbhyph;
06AppsChoicesBoardApril2005final.pdf. ¶3 Parents Involved in Community Schools v. Seattle
School Dist., No. 1 , 149 Wash. 2d 660, 72 P. 3d 151
(2003); 137 F. Supp. 2d 1224 (2001); 426 F. 3d 1162 (CA9
2005) (en banc) (Parents Involved
VII) . Part I–B:
Louisville Section 1. Before the Lawsuit, 1954 to
1972 ¶1 Hampton v. Jefferson Cty., Bd. of Ed. , 72
F. Supp. 2d 753, 756, and nn. 2, 4, 5 (WD Ky. 1999) (Hampton
I) . Section 2. Court-Imposed Guidelines and Busing, 1972 to
1991 ¶1 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 (1974),
reinstated with modifications, 510 F. 2d 1358 (CA6 1974) (per curiam); Judgment and Findings of Fact and
Conclusions of Law in Newburg Area Council, Inc. v. Board of Ed., of Jefferson Cty. , Nos. 7045 and 7291 (WD
Ky., July 30, 1975) (1975 Judgment and
Findings). ¶2 Id., at 2, 3, and Attachment
1. ¶3 Id., at
4–16. ¶4
Memorandum Opinion and Order in Haycraft v. Board of
Ed. of Jefferson Cty. , Nos. 7045 and 7291, (WD Ky., June 16,
1978), pp. 1, 2, 4, 18 (1978 Memo &
Order). ¶5
Memorandum Opinion and Order, Haycraft v. Board of Ed.
of Jefferson Cty. , Nos. 7045 and 7291 (WD Ky., Sept. 24,
1985), p. 3; Memorandum from Donald W. Ingwerson,
Superintendent, to the Board of Education, Jefferson Cty. Public
School Dist., pp. 1, 3, 5 (Apr. 4, 1984) (1984 Memorandum);
Memorandum from Donald W. Ingwerson, Superintendent, to the Board
of Education, Jefferson County Public School District, pp. 4–5
(Dec. 19, 1991) (1991
Memorandum). Section 3. Student Choice and Project Renaissance, 1991 to
1996 ¶1
1991 Memorandum 1–4, 7–11 (Stipulated Exh. 72); Brief for
Respondents in No. 05–915, P. 12,
n. 13. ¶2
1991 Memorandum
14–16. ¶3 Id., at 11,
14–15. ¶4 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
2003 ¶1
1996 Memorandum 1–4; Brief for Respondents in No. 05–915, at 12,
and
n. 13. ¶2
1996 Memorandum 4–7, and Attachment 2; Hampton I , supra , at
768. ¶3
1996 Memorandum 5–8; Hampton I , supra , at 768,
n. 30. ¶4 Hampton v. Jefferson Cty. Bd. of Ed. , 102
F. Supp. 2d 358, 359, 363, 370, 377 (WD Ky. 2000) (Hampton
II) . ¶5 Id., at
380–381. Section 5. The Current Lawsuit, 2003 to the
Present ¶1 McFarland v. Jefferson Cty. Public Schools , 330
F. Supp. 2d 834 (WD Ky. 2004); McFarland v. Jefferson Cty. Public Schools , 416 F. 3d 513 (2005);
Memorandum from Stephen W. Daeschner, Superintendent, to the Board
of Education, Jefferson Cty. Public School Dist., 3–4 (Apr. 2,
2001).