text:
Parents Involved in Community Schools v. Seattle School District No. 1/Concurrence Thomas

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 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 colorblind 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 segre- [p. 749] gation." See, e. g., post, at 806. 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[, 347 U.S. 483,] held unconstitutional and a year later Brown [v. Board of Education'', 349 U.S. 294 (1955),] held must be abolished").

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 '''[p. 750]' v. Seattle School Dist. No. 1'', 458 U.S. 457, 460 (1982). Racial imbalance is not segregation. 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 869–872. 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. '''[p. 751]'''

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) '''[p. 752]' (Thomas, J., concurring in part and dissenting in part) (citing Adarand Constructors, Inc. v. Peña'', 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." Swann, 402 U.S., at 5–6. In such cases, race-based reme- '''[p. 753]''' dial measures are sometimes required. Green, 391 U.S., at 437–438; cf. United States v. Fordice, 505 U.S. 717, 745 (1992) (Thomas, J., concurring). 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. Although Louisville '''[p. 754]' once operated a segregated school system and was subject to a Federal District Court's desegregation decree, see ante, at 715–716; 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, 488 U.S., 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, '''[p. 755]' supra, 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.

'''[p. 756]''' 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 chang- '''[p. 757]''' ing 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 837. This view is informed by dissents in our previous cases and the concurrences of two Court of Appeals judges. Post, at 835–836 (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." Id., at 27; 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 [p. 758] 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. 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"). 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. '''[p. 759]' 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 834–835. "[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 829, 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 kindergartner 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 '''[p. 760]' 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 838. "'[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." Ibid. 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 838. 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, supra, at 342 (stating the "requirement that all governmental use of race must have a logical end point").

'''[p. 761]''' 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 Law & Contemp. Prob. 17, 48 (Summer 1978). Others have been more circumspect. See, e. g., Henderson, Greenberg, Schneider, Uribe, & Verdugo, High-Quality Schooling for African American Students, in Beyond Desegregation 162, 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 219, 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 '''[p. 762]''' 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 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.

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. in No. 05–908, p. 8; see also id., at 9 ("[T]here is no evidence that diversity in the K–12 classroom positively af- [p. 763] fects 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. 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. Sowell, Education: Assumptions Versus History, 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, supra, at 209–226; 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, 539 U.S., at 364–365 (Thomas, J., concurring in part and dissenting in part) (citing sources); see also Fordice, 505 U.S., at 748–749 (Thomas, J., concurring).

'''[p. 764]''' 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 for Petitioner 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." 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 839–840, 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. See Jenkins, 515 U.S., at 121–122 (Thomas, [p. 765] 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 839. 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 836–837. 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 correc- [p. 766] tion, 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.

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 840. Environmental reflection, though, is '''[p. 767]''' 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 300 million people one Nation." Post, at 840. 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 in part), to the state civil service, see Grutter, 539 U.S., at 347–348 (opinion of Scalia, J.).

Moreover, the democratic interest has no durational limit, contrary to Grutter 's command. See id., at 342 (opinion of the Court); 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 '''[p. 768]' and "timeless in [its] ability to affect the future," id.'', at 276, cannot justify government race-based decisionmaking.

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 841 (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, '''[p. 769]' e. g.'', Yonezawa, Wells, & Serna, Choosing Tracks: "Freedom of Choice" in Detracking Schools, 39 Am. Ed. Research J. 37, 38 (2002); Mickelson, Subverting Swann: First-and Second-Generation Segregation in the Charlotte-Mecklenburg Schools, 38 Am. Ed. Research J. 215, 233–234 (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. 67, 72–76 (1989); see also Clotfelter, Interracial Contact in High School Extracurricular Activities, 34 Urban Rev. 25, 41–43 (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. 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...[;] [p. 770] 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 335, 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 3 Advances in Applied Social Psychology 181, 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.

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 841–842. 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 '''[p. 771]''' 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 353, 351–352 (opinion concurring in part and dissenting in part). 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. '''[p. 772]'''

III
Most of the dissent's criticisms of today's result can be traced to its rejection of the colorblind Constitution. See post, at 830. The dissent attempts to marginalize the notion of a colorblind Constitution by consigning it to me and Members of today's plurality. See ibid.; see also post, at 862–863. 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 Nos. 1, 2, and 4 and for Respondents in No. 10 on Reargument in Brown v. Board of Education, O. T. 1953, 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. 8, p. 5 ("The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race and color alone"); '''[p. 773]' see also In Memoriam: Honorable Thurgood Marshall, Proceedings of the Bar and Officers of the Supreme Court of the United States, p. 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 re- '''[p. 774]''' jected 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 848. 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"). The dissent argues that "weight [must be given] to a local school board’s knowledge, expertise, and concerns," post, at 848, and with equal vigor, the segregationists argued for def- '''[p. 775]''' erence 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"). The dissent argues that today's decision "threatens to substitute for present calm a disruptive round of race-related litigation," post, at 803, and claims that today's decision "risks serious harm to the law and for the Nation," post, at 865. The segregationists also relied upon the likely practical consequences of ending the state-imposed system of racial separation. See, e. g., Brief '''[p. 776]' for Appellees on Reargument in Davis v. County School Board'', O. T. 1953, No. 4, 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"). 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, at 59 ("[I]t would be difficult indeed to find a case so favored by precedent as is the case for South Carolina here").

'''[p. 777]''' 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. And just as the dis- '''[p. 778]''' sent argues that the need for these programs will lessen over time, the segregationists claimed that reliance on segregation was lessening and might eventually end.

What was wrong in 1954 cannot be right today. Whatever else the Court's rejection of the segregationists' argu- '''[p. 779]' ments 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 804–823—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).

'''[p. 780]''' In place of the colorblind Constitution, the dissent would permit measures to keep the races together and proscribe measures to keep the races apart. See post, at 829–835, 865. 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 822, 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 '''[p. 781]''' us to beware of elites bearing racial theories. See, e. g., Dred Scott v. Sandford, 19 How. 393, 406, 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 '''[p. 782]''' 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.

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
Page:Weird Tales volume 36 number 02.djvu/90

 She turned, lumbering away. This time she disdained the use of the umbrella. Going, apparently, on a variation of the principle that fingers were made before forks, she lifted a ham-like hand and smote the, fat little man athwart the ear. The beard rippled like a white banner as the wretched creature was hurled out into the rain.

He raised himself from the mud and dazedly contemplated his wife. She had never before struck him without good cause—what she considered good cause, anyway. If she was going to beat him on sudden, mad impulses, the future would be dark indeed, thought the fat little man.

He rose and ran rapidly away.

The giantess followed, crying threats.

Tim Vanderhof shuddered convulsively. He was going insane. Or else No, it was too ghastly. He couldn't be a jellyfish as well as a chameleon. He might, perhaps, assume the traits of somebody else, but he couldn't acquire their actual physical appearance as well!

"No," Vanderhof said urgently. "Please—no!"

Yet it was profoundly and disturbingly logical. He had looked at the fat little man, and had become the fat little man, white whiskers and all. The shock of seeing himself in the mirror had caused him to return to a more normal appearance. What would be the ultimate result? Would Tim Vanderhof fade into a shadow—a mere thing? Yipe.

Such was the cry that burst from Vanderhof's dry throat at the very prospect. He couldn't go about the world turning into everybody he met. And yet—chameleons did it, in so far as pigmentation went. A specialized animal like a man might go even further. The powers of the mind and the will were unplumbed. Vanderhof knew that, from much perusal of Sunday supplements and science-fiction magazines. Recalling stories he had read by such authors as H. G. Wells, Jules Verne, and Henry Kuttner, he groaned as he realized that the heroes of such tales usually met a sticky end.

"Oh, no!" Vanderhof whispered involuntarily. "I don't want to die. I'm too young to die."

Footsteps clumped into the arcade. Hurriedly Vanderhof whirled, burying his face in the nearest slot-machine, which featured a presumably authentic reel telling how native women were kidnapped by gorillas in the Congo. It was neither natural shyness nor a genuine interest in anthropology which caused Vanderhof's sudden retreat. He feared to face anyone, believing, logically enough, that he might turn into that person.

He dropped a penny in the slot and whirled the crank, scarcely seeing the faded cards that flickered into view and out again inside the machine. A gorilla was engaged in wandering through its native jungle.

OMEONE behind Vanderhof began to laugh maniacally. His cries rose into shrill screams.

There were answering, inquiring shouts. Feet thudded. Someone called, "What's the matter there."

"A monkey!" came the hysterical response. "There's a gorilla looking at dirty pictures! I've got the jumping jitters again!"

Vanderhof hurriedly turned to face a tall, skinny man with a horselike face and bloodshot eyes. He carried a cane and apparently a large cargo of Scotch.

"It's coming after me!" the man screeched, retreating. "First snakes, and now this. Ah-h, those awful glaring eyes!"

"Sh-h!" said Vanderhof, lifting a placating hand. The drunk shivered in every limb.

"It hisses like a snake!" he cried, and thrust out the cane like a fencer. Its metal tip caught Vanderhof in the middle, and he doubled up, breathless and gasping.


text:
Parents Involved in Community Schools v. Seattle School District No. 1/Concurrence Kennedy

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 Pro- '''[p. 783]''' tection 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 720. 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 838–845. The plurality, by contrast, does not acknowledge that the school districts have identified a compelling interest here. See ante, at 725–733. 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. Peña, 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 '''[p. 784]''' 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 '''[p. 785]''' 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; ''Mc-Farland 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 [p. 786] 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, pp. 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 [p. 787] 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 724; 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-toounyielding 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 gov- '''[p. 788]''' ernment 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 748, 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 '''[p. 789]''' 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 '''[p. 790]''' ("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 '''[p. 791]''' 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 720–723. 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 848–849, the unique history of school desegregation, see post, at 804, and the fact that these plans make less use of race than prior plans, see post, at 857–858, but these factors seem more rhetorical than integral to the analytical structure of the opinion.

'''[p. 792]' 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.

'''[p. 793]' 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 and City Council 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 '''[p. 794]''' 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 814–815, 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 [p. 795] 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., Bakke, 438 U.S. 265; Adarand, 515 U.S. 200.

Notwithstanding these concerns, allocation of benefits and burdens through individual racial classifications was found '''[p. 796]' 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 836 (citing 426 F.3d 1162, 1193–1196 (CA9 2005) (concurring opinion), in turn 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 argu- '''[p. 797]''' ment 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 statemandated 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 '''[p. 798]''' 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.


text:
Parents Involved in Community Schools v. Seattle School District No. 1/Dissent Stevens

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 '''[p. 799]' (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 747. 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 the bridges, to beg in the streets, and to steal their bread." 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. In this and other ways, The Chief Justice rewrites the history of one of this Court's most important decisions. Compare ante, at 746 ("history will be heard"), with Brewer v. Quarterman, 550 U.S. 286, 275 (2007) (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. The only justification for '''[p. 800]''' 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. Peña, 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).

If we look at cases decided during the interim between Brown and Adarand, we can see how a rigid adherence to '''[p. 801]' 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. Rejecting arguments comparable to those that the plurality accepts today, 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 [p. 802] 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, 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, at 825–828, were '[p. 803]''' 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.


text:
Page:Weird Tales volume 36 number 02.djvu/91

 And, simultaneously, he saw himself in a mirror.

It didn't look like Tim Vanderhof. It was wearing Tim Vanderhof's clothes, but it was, unquestionably a gorilla—the kind that kidnap native women in the Congo. The sound of footsteps grew louder. The new arrivals were almost at the arcade.

Vanderhof put forth a mighty effort of will, inadvertently baring his fangs. The drunk emitted a short, sharp cry and covered his eyes. But Vanderhof ignored him. He was glaring, wildly, at the mirror.

And, suddenly, the gorilla was gone. Vanderhof was himself again.

Tenderly rubbing his stomach, Vanderhof straightened to meet the red-rimmed gaze of the horse-faced man.

"Where is it?'* the latter babbled. "Where did it go?"

"Where did what go?" Vanderhof asked coldly, still maintaining the mental effort that enabled him to keep his rightful form.

"The gorilla—" There was a pause as people poured into the arcade, asking questions. There was confusion and tumult. And shouting. This died, eventually, as Vanderhof indicated the horse-faced man and explained that he was drunk.

"I'm not that drunk," was the surly response. "Snakes, yes. But not gorillas. Where is it? I know." The man's glazed eyes brightened. "You hid it!"

"You're drunk," Vanderhof said.

"Yeah? For two cents I'd punch your face in. Gr-r!" His confusion crystallized into belligerency, the drunk rolled forward, waving the cane. Vanderhof fled—

It was a hard life, he thought dismally, as he slunk through Luna Park, carefully avoiding crowds. The rain had stopped now, but people were still wary. This was all to the good. Vanderhof could, he found, retain his normal shape by putting forth a strong mental effort, but this could not be kept up for long. Already he felt weak.

Yet, at the back of his mind, a queer, perverse excitement was slowly, imperceptibly growing. In a way, it was rather fun. Imagine being able to turn yourself into a gorilla! Everybody was afraid of gorillas!

People shot them, too, Vanderhof recalled, and shut his eyes. He wavered, hearing faintly the tones of a hoarse, rasping voice that plucked at his nerves. It was like—like—what?"? [sic]

Like Walker's voice. Urgent—commanding. Demanding that he do something—

He opened his eyes and found himself before a side-show. The barker stood above him on a box, derby tilted back, checkered suit, garish, thrusting out a commanding finger.

"C'mon, folks! Here it is, greatest sideshow on Earth! Tiniest dwarf ever born of woman, tallest giant since Creation, all the wonders of the Universe gathered here for your inspection. Step inside! You, there—only a dime. Step right forward, mister! The girl will take your dime!"

"No!" Vanderhof squeaked faintly, and tried to retreat. Instead, he found himself walking forward.

"Right this way, mister! Pay your dime! R-r-right in here! Step inside—"

Vanderhof found a dime and paid the admission charge. He didn't want to go into the side-show. He had a singularly horrid idea of what might happen there. But the barker's will-power was too strong for him,, and he could no longer exert the mental effort that partially insulated him from danger. He was exhausted.

"I'm a jellyfish," poor Vanderhof "mourned as he entered the show. "That's what I am. Walker was right. Oh, damn!" he ended futilely, tears of frustrated rage in his eyes. "I wish this would stop!"

But wishing didn't do any good. The chameleon man found himself in the sideshow—surrounded by freaks!