PARENTS INVOLVED IN COMMUNITY SCHOOLS v. SEATTLE SCHOOL DISTRICT NO. 1 et al.

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701 OCTOBER TERM, 2006
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PARENTS INVOLVED IN COMMUNITY SCHOOLS v.
SEATTLE SCHOOL DISTRICT NO. 1 et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 05–908. Argued December 4, 2006—Decided June 28, 2007*
Respondent school districts voluntarily adopted student assignment plans
that rely on race to determine which schools certain children may at
tend. The Seattle district, which has never operated legally segregated
schools or been subject to court-ordered desegregation, classified chil
dren as white or nonwhite, and used the racial classifications as a “tie
breaker” to allocate slots in particular high schools. The Jefferson
County, Ky., district was subject to a desegregation decree until 2000,
when the District Court dissolved the decree after finding that the dis
trict had eliminated the vestiges of prior segregation to the greatest
extent practicable. In 2001, the district adopted its plan classifying stu
dents as black or “other” in order to make certain elementary school
assignments and to rule on transfer requests.
Petitioners, an organization of Seattle parents (Parents Involved) and
the mother of a Jefferson County student (Joshua), whose children were
or could be assigned under the foregoing plans, filed these suits contend
ing, inter alia, that allocating children to different public schools based
solely on their race violates the Fourteenth Amendment’s equal protec
tion guarantee. In the Seattle case, the District Court granted the
school district summary judgment, finding, inter alia, that its plan sur
vived strict scrutiny on the federal constitutional claim because it was
narrowly tailored to serve a compelling government interest. The
Ninth Circuit affirmed. In the Jefferson County case, the District
Court found that the school district had asserted a compelling interest
in maintaining racially diverse schools, and that its plan was, in all rele
vant respects, narrowly tailored to serve that interest. The Sixth Cir
cuit affirmed.
Held: The judgments are reversed, and the cases are remanded.
No. 05–908, 426 F. 3d 1162; No. 05–915, 416 F. 3d 513, reversed and
remanded.
The Chief Justice delivered the opinion of the Court with respect
to Parts I, II, III–A, and III–C, concluding:
*Together with No. 05–915, Meredith, Custodial Parent and Next
Friend of McDonald v. Jefferson County Board of Education et al., on
certiorari to the United States Court of Appeals for the Sixth Circuit.

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1. The Court has jurisdiction in these cases. Seattle argues that Par
ents Involved lacks standing because its current members’ claimed inju
ries are not imminent and are too speculative in that, even if the district
maintains its current plan and reinstitutes the racial tiebreaker, those
members will only be affected if their children seek to enroll in a high
school that is oversubscribed and integration positive. This argument
is unavailing; the group’s members have children in all levels of the
district’s schools, and the complaint sought declaratory and injunctive
relief on behalf of members whose elementary and middle school chil
dren may be denied admission to the high schools of their choice in the
future. The fact that those children may not be denied such admission
based on their race because of undersubscription or oversubscription
that benefits them does not eliminate the injury claimed. The group
also asserted an interest in not being forced to compete in a race-based
system that might prejudice its members’ children, an actionable form
of injury under the Equal Protection Clause, see, e. g., Adarand Con
structors, Inc. v. Pen˜ a, 515 U. S. 200, 211. The fact that Seattle has
ceased using the racial tiebreaker pending the outcome here is not dis
positive, since the district vigorously defends its program’s constitution
ality, and nowhere suggests that it will not resume using race to assign
students if it prevails. See Friends of Earth, Inc. v. Laidlaw Environ
mental Services (TOC), Inc., 528 U. S. 167, 189. Similarly, the fact that
Joshua has been granted a transfer does not eliminate the Court’s juris
diction; Jefferson County’s racial guidelines apply at all grade levels,
and he may again be subject to race-based assignment in middle
school. Pp. 718–720.
2. The school districts have not carried their heavy burden of showing
that the interest they seek to achieve justifies the extreme means they
have chosen—discriminating among individual students based on race
by relying upon racial classifications in making school assignments.
Pp. 720–725, 733–735.
(a) Because “racial classifications are simply too pernicious to per
mit any but the most exact connection between justification and
classification,” Fullilove v. Klutznick, 448 U. S. 448, 537 (Stevens, J.,
dissenting), governmental distributions of burdens or benefits based
on individual racial classifications are reviewed under strict scrutiny,
e. g., Johnson v. California, 543 U. S. 499, 505–506. Thus, the school
districts must demonstrate that their use of such classifications is
“narrowly tailored” to achieve a “compelling” government interest.
Adarand, supra, at 227.
Although remedying the effects of past intentional discrimination is
a compelling interest under the strict scrutiny test, see Freeman v.
Pitts, 503 U. S. 467, 494, that interest is not involved here because the

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Seattle schools were never segregated by law nor subject to court
ordered desegregation, and the desegregation decree to which the Jef
ferson County schools were previously subject has been dissolved.
Moreover, these cases are not governed by Grutter v. Bollinger, 539
U. S. 306, 328, in which the Court held that, for strict scrutiny purposes,
a government interest in student body diversity “in the context of
higher education” is compelling. That interest was not focused on race
alone but encompassed “all factors that may contribute to student body
diversity,” id., at 337, including, e. g., having “overcome personal adver
sity and family hardship,” id., at 338. Quoting Justice Powell’s articula
tion of diversity in Regents of Univ. of Cal. v. Bakke, 438 U. S. 265,
314–315, the Grutter Court noted 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,” 539 U. S., at 324–325, but “ ‘a far broader array
of qualifications and characteristics of which racial or ethnic origin is
but a single though important element,’ ” id., at 325. 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 view
points,” id., at 330; race, for some students, is determinative standing
alone. The districts argue that other factors, such as student prefer
ences, 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. See Gratz v. Bollinger, 539 U. S. 244, 275. Even as 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. The Grutter Court expressly limited its holding—
defining a specific type of broad-based diversity and noting the unique
context of higher education—but these limitations were largely disre
garded by the lower courts in extending Grutter to the sort of classifi
cations at issue here. Pp. 720–725.
(b) Despite the districts’ assertion that they employed individual
racial classifications in a way necessary to achieve their stated ends, the
minimal effect these classifications have on student assignments sug
gests that other means would be effective. Seattle’s racial tiebreaker
results, in the end, only in shifting a small number of students between
schools. Similarly, Jefferson County admits that its use of racial classi
fications has had a minimal effect, and claims only that its guidelines
provide a firm definition of the goal of racially integrated schools,
thereby providing administrators with authority to collaborate with
principals and staff to maintain schools within the desired range. Clas
sifying and assigning schoolchildren according to a binary conception of

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race is an extreme approach in light of this Court’s precedents and the
Nation’s history of using race in public schools, and requires more than
such an amorphous end to justify it. In Grutter, in contrast, the consid
eration of race was viewed as indispensable in more than tripling minor
ity representation at the law school there at issue. See 539 U. S., at
320. While the Court does 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 such classifi
cations. The districts have also failed to show 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,” id., at 339, and yet in Seattle several alterna
tive assignment plans—many of which would not have used express ra
cial classifications—were rejected with little or no consideration. Jef
ferson 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.
Pp. 733–735.
The Chief Justice, joined by Justice Scalia, Justice Thomas,
and Justice Alito, concluded for additional reasons in Parts III–B and
IV that the plans at issue are unconstitutional under this Court’s prece
dents. Pp. 725–733, 735–748.
1. The Court need not resolve the parties’ dispute over whether racial
diversity in schools has a marked impact on test scores and other objec
tive yardsticks or achieves intangible socialization benefits because it is
clear that the racial classifications at issue are not narrowly tailored to
the asserted goal. In design and operation, the plans are directed only
to racial balance, an objective this Court has repeatedly condemned as
illegitimate. They are tied to each district’s specific racial demograph
ics, rather than to any pedagogic concept of the level of diversity needed
to obtain the asserted educational benefits. Whatever those demo
graphics happen to be drives the required “diversity” number in each
district. The districts offer no evidence that the level of racial diversity
necessary to achieve the asserted educational benefits happens to coin
cide with the racial demographics of the respective districts, or rather
the districts’ white/nonwhite or black/“other” balance, since that is the
only diversity addressed by the plans. In Grutter, the number of mi
nority students the school sought to admit was an undefined “meaning
ful number” necessary to achieve a genuinely diverse student body, 539
U. S., at 316, 335–336, and the Court concluded that the law school did
not count back from its applicant pool to arrive at that number, id., at
335–336. Here, in contrast, the schools worked backward to achieve a

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particular type of racial balance, rather than working forward from
some demonstration of the level of diversity that provides the purported
benefits. This is a fatal flaw under the Court’s existing precedent.
See, e. g., Freeman, 503 U. S., at 494. Accepting racial balancing as a
compelling state interest would justify imposing racial proportionality
throughout American society, contrary to the Court’s repeated admoni
tions that this is unconstitutional. While the school districts use vari
ous verbal formulations to describe the interest they seek to promote—
racial diversity, avoidance of racial isolation, racial integration—they
offer no definition suggesting that their interest differs from racial bal
ancing. Pp. 725–733.
2. If the need for the racial classifications embraced by the school
districts is unclear, even on the districts’ own terms, the costs are unde
niable. Government action dividing people by race is inherently sus
pect because such classifications promote “notions of racial inferiority
and lead to a politics of racial hostility,” Richmond v. J. A. Croson Co.,
488 U. S. 469, 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, and “endorse race-based reason
ing and the conception of a Nation divided into racial blocs, thus contrib
uting to an escalation of racial hostility and conflict,” Metro Broadcast
ing, Inc. v. FCC, 497 U. S. 547, 603 (O’Connor, J., dissenting). When it
comes to using race to assign children to schools, history will be heard.
In Brown v. Board of Education, 347 U. S. 483, the Court held that
segregation deprived black children of equal educational opportunities
regardless of whether school facilities and other tangible factors were
equal, because the classification and separation themselves denoted infe
riority. Id., at 493–494. It was not the inequality of the facilities but
the fact of legally separating children based on race on which the Court
relied to find a constitutional violation in that case. Id., at 494. The
districts here invoke the ultimate goal of those who filed Brown and
subsequent cases to support their argument, but the argument of the
plaintiff in Brown was that the Equal Protection Clause “prevents
states from according differential treatment to American children on
the basis of their color or race,” and that view prevailed—this Court
ruled in its remedial opinion that Brown required school districts “to
achieve a system of determining admission to the public schools on a
nonracial basis.” Brown v. Board of Education, 349 U. S. 294, 300–301
(emphasis added). Pp. 735–748.
Justice Kennedy agreed that the Court has jurisdiction to decide
these cases and that respondents’ student assignment plans are not nar
rowly tailored to achieve the compelling goal of diversity properly de
fined, but concluded that some parts of the plurality opinion imply an

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unyielding insistence that race cannot be a factor in instances when it
may be taken into account. Pp. 782–798.
(a) As part of its burden of proving that racial classifications are nar
rowly tailored to further compelling interests, the government must es
tablish, in detail, how decisions based on an individual student’s race are
made in a challenged program. The Jefferson County Board of Educa
tion fails to meet this threshold mandate when it concedes it denied
Joshua’s requested kindergarten transfer on the basis of his race under
its guidelines, yet also maintains that the guidelines do not apply to
kindergartners. This discrepancy is not some simple and straightfor
ward error that touches only upon the peripheries of the district’s use
of individual racial classifications. As becomes clearer when the dis
trict’s plan is further considered, Jefferson County has explained how
and when it employs these classifications only in terms so broad and
imprecise that they cannot withstand strict scrutiny. In its briefing it
fails to make clear—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 sub
jects governmental action to strict scrutiny, it cannot construe ambigu
ities in favor of the government. In the Seattle case, the school district
has gone further in describing the methods and criteria used to deter
mine assignment decisions based on individual racial classifications, but
it has nevertheless failed to explain why, in a district composed of
a diversity of races, with only a minority of the students classified
as “white,” it has employed the crude racial categories of “white”
and “non-white” as the basis for its assignment decisions. Far from
being narrowly tailored, this system threatens to defeat its own ends,
and the district has provided no convincing explanation for its design.
Pp. 783–787.
(b) The plurality opinion is too dismissive of government’s legitimate
interest in ensuring that all people have equal opportunity regardless
of their race. In administering public schools, it is permissible to con
sider the schools’ racial makeup and adopt general policies to encourage
a diverse student body, one aspect of which is its racial composition.
Cf. Grutter v. Bollinger, supra. School authorities concerned that their
student bodies’ racial compositions interfere with offering an equal edu
cational opportunity to all are free to devise race-conscious measures to
address the problem in a general way and without treating each student
in different fashion based solely on a systematic, individual typing
by race. Such measures may include strategic site selection of new
schools; drawing attendance zones with general recognition of neighbor

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hood demographics; allocating resources for special programs; recruiting
students and faculty in a targeted fashion; and tracking enrollments,
performance, and other statistics by race.
Each respondent has failed to provide the necessary support for the
proposition that there is no other way than individual racial classifica
tions to avoid racial isolation in their school districts. Cf. Croson,
supra, at 501. In these cases, the fact that the number of students
whose assignment depends on express racial classifications is small sug
gests that the schools could have achieved their stated ends through
different means, including 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 compo
nent. The latter approach would be informed by Grutter, though the
criteria relevant to student placement would differ based on the stu
dents’ age, the parents’ needs, and the schools’ role. Pp. 787–790.
Roberts, C. J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, II, III–A, and III–C, in which
Scalia, Kennedy, Thomas, and Alito, JJ., joined, and an opinion with
respect to Parts III–B and IV, in which Scalia, Thomas, and Alito, JJ.,
joined. Thomas, J., filed a concurring opinion, post, p. 748. Kennedy,
J., filed an opinion concurring in part and concurring in the judgment, post,
p. 782. Stevens, J., filed a dissenting opinion, post, p. 798. Breyer, J.,
filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ.,
joined, post, p. 803.
Harry J. F. Korrell argued the cause for petitioner in
No. 05–908. With him on the briefs were Daniel B. Ritter
and Eric B. Martin. Teddy B. Gordon argued the cause and
filed briefs for petitioner in No. 05–915.
Solici tor General Clement argued the cause for the
United States as amicus curiae urging reversal in both
cases. With him on the briefs were Assistant Attorney
General Kim, Deputy Solicitor General Garre, David B.
Salmons, David K. Flynn, Angela M. Miller, and Kent D.
Talbert.
Michael Madden argued the cause for respondents in
No. 05–908. With him on the brief were Carol Sue Janes,
Maree F. Sneed, John W. Borkowski, Audrey J. Anderson,
Gary L. Ikeda, Shannon McMinimee, and Eric Schnapper.
Francis J. Mellen, Jr., argued the cause for respondents in

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708 PARENTS INVOLVED IN COMMUNITY SCHOOLS v.
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Opinion of Roberts, C. J.
No. 05–915. With him on the brief were Byron E. Leet and
Rosemary Miller.†
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
†Briefs of amici curiae urging reversal in both cases were filed for the
Pacific Legal Foundation et al. by Sharon L. Browne and Paul J. Beard
II; for the Project on Fair Representation et al. by Bert W. Rein; for
Various School Children from Lynn, Massachusetts, by Michael Williams
and Chester Darling; for David J. Armor et al. by Robert N. Driscoll; and
for Governor John Ellis “Jeb” Bush et al. by Daniel J. Woodring, Raquel
A. Rodriguez, and Nathan A. Adams IV.
Briefs of amici curiae urging reversal in No. 05–908 were filed for the
Center for Individual Rights by Michael E. Rosman and Erik S. Jaffe;
for the Competitive Enterprise Institute by Hans Bader; for the Mountain
States Legal Foundation by William Perry Pendley; and for Dr. John
Murphy et al. by John R. Munich.
Briefs of amici curiae urging affirmance in both cases were filed for the
Commonwealth of Massachusetts by Thomas F. Reilly, Attorney General
of Massachusetts, and Richard W. Cole and John R. Hitt, Assistant Attor
neys General; for the State of New York et al. by Eliot Spitzer, Attorney
General of New York, Caitlin J. Halligan, Solicitor General, Michelle Aro
nowitz, Deputy Solicitor General, and Laura R. Johnson and Diana R. H.
Winters, Assistant Solicitors General, by Roberto J. Sa´ nchez Ramos, Sec
retary of Justice of Puerto Rico, and by the Attorneys General for their
respective jurisdictions as follows: Richard Blumenthal of Connecticut,
Robert J. Spagnoletti of the District of Columbia, Lisa Madigan of Illinois,
Thomas Miller of Iowa, Greg Stumbo of Kentucky, G. Steven Rowe of
Maine, J. Joseph Curran, Jr., of Maryland, Jeremiah W. (Jay) Nixon of
Missouri, Stuart Rabner of New Jersey, Patricia A. Madrid of New Mex
ico, Roy Cooper of North Carolina, Hardy Myers of Oregon, Patrick
Lynch of Rhode Island, Mark L. Shurtleff of Utah, William H. Sorrell of
Vermont, Rob McKenna of Washington, and Peggy A. Lautenschlager of
Wisconsin; for the American Civil Liberties Union et al. by Dennis D.
Parker, Reginald T. Shuford, Christopher A. Hansen, and Steven R. Sha
piro; for the American Council on Education et al. by Michael P. Boudett,
Dean Richlin, and Robert E. Toone; for the American Educational Re
search Association by Angelo N. Ancheta; for the American Psychological
Association et al. by John Payton, David W. Ogden, Nathalie F. P. Gil
foyle, and Lindsay Childress-Beatty; for the Anti-Defamation League by

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Opinion of Roberts, C. J.
to Parts III–B and IV, in which Justice Scalia, Justice
Thomas, and Justice Alito join.
The school districts in these cases voluntarily adopted stu
dent assignment plans that rely upon race to determine
Martin E. Karlinsky, Erwin Chemerinsky, Frederick M. Lawrence, Jona
than K. Baum, Steven M. Freeman, Howard W. Goldstein, and Steven C.
Sheinberg; for the Asian American Justice Center et al. by Mark A. Pack
man, Jonathan M. Cohen, Karen Narasaki, and Vincent Eng; for the
Asian American Legal Defense and Education Fund et al. by Marc Wolin
sky and Kenneth Kimerling; for the Association of the Bar of the City of
New York by Jonathan I. Blackman and David Rush; for the Black
Women Lawyers’ Association of Greater Chicago, Inc., by Sharon E.
Jones; for the Brennan Center for Justice et al. by Warrington S. Parker
III, Deborah Goldberg, and David J. Harth; for the Caucus for Structural
Equity by Daniel R. Shulman; for the Civil Rights Clinic at Howard Uni
versity School of Law by Aderson Bellegarde Franc¸ois; for the Coalition
to Defend Affirmative Action, Integration, & Immigrant Rights and Fight
for Equality By Any Means Necessary (BAMN) et al. by George B. Wash
ington; for the Collaborative of Catholic Leaders et al. by Terrence J.
Fleming; for the Council of the Great City Schools et al. by Julie Wright
Halbert and Pamela Harris; for Historians by Jack Greenberg; for Histo
rians of the Civil Rights Era by Theodore V. Wells, Jr., and David W.
Brown; for Housing Scholars et al. by Michael B. de Leeuw; for Interested
Human Rights Clinics et al. by Cynthia J. Larsen and Martha F. Davis;
for Latino Organizations by John D. Trasvin˜ a and Diana S. Sen; for the
Lawyers’ Committee for Civil Rights of the San Francisco Bay Area by
Steven A. Hirsch and Robert Rubin; for the Leadership Conference on
Civil Rights et al. by Andrew J. Pincus, Carolyn P. Osolinik, and William
L. Taylor; for the Massachusetts Association of School Superintendents
et al. by Joseph Leghorn; for the NAACP by Dennis Courtland Hayes
and Preeta D. Bansal; for the NAACP Legal Defense & Educational Fund,
Inc., by Theodore M. Shaw, Jacqueline A. Berrien, Norman J. Chachkin,
Victor A. Bolden, Chinh Q. Le, and David T. Goldberg; for the National
Collegiate Athletic Association et al. by Margaret A. Keane; for the Na
tional Education Association et al. by Robert H. Chanin, Jonathan P.
Hiatt, Harold Craig Becker, David Strom, Elliot Mincberg, Alice
O’Brien, and Larry Weinberg; for the National Parent Teacher Associa
tion by Rachel D. Godsil and Michelle Adams; for the National School
Boards Association et al. by Thomas C. Goldstein, Francisco M. Negro´ n,
and Michael C. Small; for the National Women’s Law Center et al. by
Walter Dellinger, Mark S. Davies, Nicole A. Saharsky, Marcia D. Green

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710 PARENTS INVOLVED IN COMMUNITY SCHOOLS v.
SEATTLE SCHOOL DIST. NO. 1
Opinion of Roberts, C. J.
which public schools certain children may attend. The Seat
tle 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 com
position of the school district as a whole. Parents of stu
dents denied assignment to particular schools under these
berger, Jocelyn Samuels, Dina R. Lassow, and Judith L. Lichtman; for
Religious Organizations et al. by William T. Russell, Jr.; for the Swann
Fellowship et al. by Anita S. Earls, Julius L. Chambers, Charles E. Daye,
and John Charles Boger; for Former United States Secretaries of Educa
tion et al. by Drew S. Days III, Beth S. Brinkmann, and Seth M. Galanter;
for the Urban League of Metropolitan Seattle et al. by Rebecca J. Roe; for
the Honorable Clifford L. Alexander, Jr., et al. by Jonathan S. Franklin;
for Senator Edward M. Kennedy et al. by Andy Liu, David L. Haga, Lau
rel Pyke Malson, and Beth Nolan; for Representative Jim McDermott
et al. by William R. Weissman; for Amy Stuart Wells et al. by Kenneth
D. Heath; for 19 Former Chancellors of the University of California by
Goodwin Liu; for 553 Social Scientists by Liliana M. Garces; and for Walt
Sherlin by Martha Melinda Lawrence.
Briefs of amici curiae urging affirmance in No. 05–908 were filed for
the Alliance for Education et al. by David J. Burman, Michael W. Hoge,
and J. Shan Mullin; for the Los Angeles Unified School District by Peter
W. James; and for the National Lawyers Guild by David Gespass and
Zachary Wolfe.
Briefs of amici curiae urging affirmance in No. 05–915 were filed for
Human Rights Advocacy Groups et al. by David Weissbrodt; for the Louis
ville Area Chamber of Commerce, Inc. (d/ b/a Greater Louisville Inc.),
et al. by John K. Bush; and for the Prichard Committee for Aca
demic Excellence by Sheryl G. Snyder, Amy D. Cubbage, and Phillip J.
Shepherd.
Briefs of amici curiae were filed in both cases for the Asian American
Legal Foundation by Gordon M. Fauth, Jr.; for Media & Telecommunica
tion Cos. by Elizabeth G. Taylor; and for Joseph E. Brann et al. by Robert
N. Weiner and Richard Jerome.

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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 segre
gated 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.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 tie
breaker selects for admission students who have a sibling
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 ).

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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 pub
lic 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.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).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 none
theless employs the racial tiebreaker in an attempt to ad
dress the effects of racially identifiable housing patterns on
school assignments. Most white students live in the north
ern part of Seattle, most students of other racial back
grounds 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 Seat
2 The racial breakdown of this nonwhite group is approximately 23.8
percent Asian-American, 23.1 percent African-American, 10.3 percent La
tino, and 2.8 percent Native-American. See 377 F. 3d 949, 1005–1006
(CA9 2004) (Parents Involved VI ) (Graber, J., dissenting).
3 For the 2001–2002 school year, the deviation permitted from the de
sired 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.

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tle, 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 “integra
tion positive” because the school’s white enrollment the pre
vious school year was greater than 51 percent—Ballard, Na
than 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 en
rollment the previous school year was greater than 69 per
cent; 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, al
though in previous years Garfield’s enrollment had been pre
dominantly nonwhite, and the racial tiebreaker had been
used to give preference to white students. Id., at 39a.
Petitioner Parents Involved in Community Schools (Par
ents Involved) is a nonprofit corporation comprising the par
ents 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 Ca
reer Academy. Andy suffered from attention deficit hyper
activity 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

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held the most promise for his continued success. Andy was
accepted into this selective program but, because of the ra
cial 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,4
Title VI of the Civil Rights Act of 1964,5 and the Washington
Civil Rights Act.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 In
volved 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 ).
4 “No State shall . . . deny to any person within its jurisdiction the equal
protection of the laws.” U. S. Const., Amdt. 14, § 1.
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 pro
gram or activity receiving Federal financial assistance.” 78 Stat. 252, 42
U. S. C. § 2000d.
6 “The state shall not discriminate against, or grant preferential treat
ment 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).

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The Washington Supreme Court determined that the
State Civil Rights Act bars only preferential treatment pro
grams “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 Commu
nity 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 Dis
trict 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 inter
ests, 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 Dis
trict 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 certio
rari. 547 U. S. 1177 (2006).
B
Jefferson County Public Schools operates the public school
system in metropolitan Louisville, Kentucky. In 1973 a fed
eral court found that Jefferson County had maintained a seg
regated 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. Jef
ferson 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

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finding that the district had achieved unitary status by elimi
nating “[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. Approxi
mately 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 enroll
ment 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 ad
dress, each student is designated a “resides” school to which
students within a specific geographic area are assigned; ele
mentary 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 clus
ter; 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

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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 43.7
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 interclus
ter transfers are allowed, but Joshua’s transfer was nonethe
less denied because, in the words of Jefferson County, “[t]he
transfer would have an adverse effect on desegregation com
pliance” of Young. App. in No. 05–915, at 97.8
Meredith brought suit in the Western District of Ken
tucky, alleging violations of the Equal Protection Clause of
the Fourteenth Amendment. The District Court found that
Jefferson County had asserted a compelling interest in main
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 guide
lines. 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.
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 kinder
garten 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.

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taining racially diverse schools, and that the assignment plan
was (in all relevant respects) narrowly tailored to serve that
compelling interest. McFarland I, supra, at 837.9 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. Jef
ferson Cty. Public Schools, 416 F. 3d 513, 514 (2005) (McFar
land II ). We granted certiorari. 547 U. S. 1178 (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 chil
dren 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 Re
spondents 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 Kath
leen Brose Pursuant to this Court’s Rule 32.3 (Lodging of
Petitioner Parents Involved), and the complaint sought de
claratory 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
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).

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based on their race—because they choose an undersub
scribed 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 plain
tiff, Adarand Constructors, Inc. v. Pen˜ a, 515 U. S. 200, 211
(1995); Northeastern Fla. Chapter, Associated Gen. Contrac
tors 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 constitu
tionality 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 Phos
phate 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

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levels. Upon Joshua’s enrollment in middle school, he may
again be subject to assignment based on his race. In addi
tion, 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 distrib
utes burdens or benefits on the basis of individual racial clas
sifications, 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 classifica
tions 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 Fulli
love v. Klutznick, 448 U. S. 448, 537 (1980) (Stevens, J., dis
senting); brackets omitted). In order to satisfy this search
ing standard of review, the school districts must demonstrate
that the use of individual racial classifications in the as
signment 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 in
terests 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 Se
attle public schools have not shown that they were ever seg
regated by law, and were not subject to court-ordered deseg
regation decrees. The Jefferson County public schools were
previously segregated by law and were subject to a desegre
gation decree entered in 1975. In 2000, the District Court
that entered that decree dissolved it, finding that Jefferson

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County had “eliminated the vestiges associated with the for
mer 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 dis
crimination 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 Jef
ferson 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.10
10 The districts point to dicta in a prior opinion in which the Court sug
gested that, while not constitutionally mandated, it would be constitution
ally 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 dis
trict’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 “equi
table 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. Camen
isch, 451 U. S. 390, 393 (1981).

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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 ex
amples of admittees who have lived or traveled widely
abroad, are fluent in several languages, have overcome
personal adversity and family hardship, have excep
tional 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 Univ. of Cal. 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 stu
dent 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 quota
tion 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

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in Grutter was only as part of a “highly individualized, holis
tic 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 bal
ance, which the Court explained would be “patently uncon
stitutional.” Id., at 330.
In the present cases, by contrast, race is not considered as
part of a broader effort to achieve “exposure to widely di
verse people, cultures, ideas, and viewpoints,” ibid.; race, for
some students, is determinative standing alone. The dis
tricts 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 deci
sion, 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 Jeffer
son County.11 But see Metro Broadcasting, Inc. v. FCC, 497
U. S. 547, 610 (1990) (O’Connor, J., dissenting) (“We are a Na
tion not of black and white alone, but one teeming with di
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 neces
sary, the enrollment service person taking the application will indicate one
box.” App. in No. 05–908, at 303a.

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vergent communities knitted together by various traditions
and carried forth, above all, by individuals”). 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 qual
ify 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 un
derstand 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 uncon
stitutional attempts to implement race-based assignment
plans—such as the plans at issue here—in primary and sec
ondary schools. See, e. g., Eisenberg v. Montgomery Cty.
Public Schools, 197 F. 3d 123, 133 (CA4 1999); Tuttle v. Ar
lington Cty. School Bd., 195 F. 3d 698, 701 (CA4 1999) (per
curiam); Wessmann 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) (en banc).
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 free
doms of speech and thought associated with the university
environment, universities occupy a special niche in our con
stitutional tradition.” 539 U. S., at 329. See also Bakke,

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438 U. S., at 312, 313 (opinion of Powell, J.). The Court ex
plained 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 edu
cation—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 sus
tain their plans, both school districts assert additional inter
ests, distinct from the interest upheld in Grutter, to justify
their race-based assignments. In briefing and argument be
fore 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 non
white students from having access to the most desirable
schools. Brief for Respondents in No. 05–908, at 19. Jef
ferson County has articulated a similar goal, phrasing its in
terest in terms of educating its students “in a racially inte
grated environment.” App. in No. 05–915, at 22.12 Each
school district argues that educational and broader socializa
tion benefits flow from a racially diverse learning environ
ment, and each contends that because the diversity they seek
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.

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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 diver
sity in schools in fact has a marked impact on test scores and
other objective yardsticks or achieves intangible socializa
tion benefits. The debate is not one we need to resolve,
however, because it is clear that the racial classifications em
ployed 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 sim
ple, an objective this Court has repeatedly condemned as
illegitimate.
The plans are tied to each district’s specific racial demo
graphics, rather than to any pedagogic concept of the level
of diversity needed to obtain the asserted educational bene
fits. In Seattle, the district seeks white enrollment of be
tween 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 de
mographics in each district—whatever they happen to be—

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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 attaining a level of di
versity 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 di
versity necessary to achieve the asserted educational bene
fits 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 Seat
tle 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 per
centage 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 di
versity 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 Seat
tle’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 impor
tance of having “at least 20 percent” minority group repre

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sentation for the group “to be visible enough to make a dif
ference,” 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 de
nied 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 districtwide 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 defini
tion of diversity.13
13 Data for the Seattle schools in the several years since this litigation
was commenced further demonstrate the minimal role that the racial tie
breaker in fact played. At Ballard, in 2005–2006—when no class at the

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In Grutter, the number of minority students the school
sought to admit was an undefined “meaningful number” nec
essary 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 “mean
ingful 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 ra
cial balance, rather than working forward from some demon
stration 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
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 tie
breaker was last used, Ballard’s total enrollment was 17.5 percent Asian-
American, 10.8 percent African-American, 10.7 percent Latino, 56.4 per
cent 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 per
cent 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 La
tino, 58.4 percent Caucasian, and 3.4 percent Native-American. App. in
No. 05–908, at 286a.

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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 be
cause of its race or ethnic origin, such a preferential purpose
must be rejected . . . as facially invalid”). Grutter itself reit
erated that “outright racial balancing” is “patently unconsti
tutional.” 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 rec
ognition that “[a]t the heart of the Constitution’s guarantee
of equal protection lies the simple command that the Govern
ment must treat citizens as individuals, not as simply compo
nents of a racial, religious, sexual or national class.” Miller
v. Johnson, 515 U. S. 900, 911 (1995) (quoting Metro Broad
casting, 497 U. S., at 602 (O’Connor, J., dissenting); internal
quotation marks omitted).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 ‘ulti
mate goal’ of ‘eliminating entirely from governmental deci
sionmaking 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.,
14 In contrast, Seattle’s Web site formerly described “emphasizing indi
vidualism 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, Se
attle Post-Intelligencer, June 2, 2006, pp. B1, B5. Compare Plessy v. Fer
guson, 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”).

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dissenting); brackets and citation omitted). An interest
“linked to nothing other than proportional representation of
various races . . . would support indefinite use of racial classi
fications, 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 Wy
gant, supra, at 275 (plurality opinion); internal quotation
marks omitted); see also Grutter, supra, at 343, is demon
strated 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 diver
sity. 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 prefer
ences 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 dis
crimination does not justify race-conscious government ac
tion. 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; Wy
gant, 476 U. S., at 276 (plurality opinion) (“Societal discrimi
nation, without more, is too amorphous a basis for imposing
a racially classified remedy”); id., at 288 (O’Connor, J., con
curring in part and concurring in judgment) (“[A] govern
mental agency’s interest in remedying ‘societal’ discrimina

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tion, that is, discrimination not traceable to its own actions,
cannot be deemed sufficiently compelling to pass constitu
tional muster”).
The principle that racial balancing is not permitted is one
of substance, not semantics. Racial balancing is not trans
formed 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 isola
tion?” “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 per
centage of students of the population”).
Jefferson County phrases its interest as “racial integra
tion,” but integration certainly does not require the sort of
racial proportionality reflected in its plan. Even in the con
text of mandatory desegregation, we have stressed that ra
cial proportionality is not required, see Milliken, 433 U. S.,
at 280, n. 14 (“[A desegregation] order contemplating the sub
stantive 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 com
mand to desegregate schools does not mean that every school
in every community must always reflect the racial composi
tion of the school system as a whole”), and here Jefferson
County has already been found to have eliminated the ves
tiges of its prior segregated school system.

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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.” Par
ents Involved VII, supra, at 1191. For the foregoing rea
sons, 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 mem
bers 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 neces
sary to achieve their stated ends. The minimal effect these
classifications have on student assignments, however, sug
gests 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 tie
breaker. 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 adjust
ments. Id., at 162a–163a. In over one-third of the assign
ments affected by the racial tiebreaker, then, the use of race
in the end made no difference, and the district could identify

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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 shuf
fle 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, per
haps two dozen Asians into Roosevelt, and so on. The
District has not met its burden of proving these mar
ginal changes . . . outweigh the cost of subjecting hun
dreds of students to disparate treatment based solely
upon the color of their skin.” 377 F. 3d, at 984–985.
Similarly, Jefferson County’s use of racial classifications
has only a minimal effect on the assignment of students. El
ementary 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. Jeffer
son 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 in
fluence 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 classi
fications 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 mi

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nority representation at the law school—from 4 to 14.5 per
cent. 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 Op
position 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 ex
press 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 dis
trict 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. Cf. 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 prece
dent and even dicta while dismissing contrary holdings, al
ters and misapplies our well-established legal framework for
assessing equal protection challenges to express racial classi

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fications, and greatly exaggerates the consequences of to
day’s decision.
To begin with, Justice Breyer seeks to justify the plans
at issue under our precedents recognizing the compelling in
terest in remedying past intentional discrimination. See
post, at 819–825. 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 genera
tions. 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 consti
tutional implications”). The dissent elides this distinction
between de jure and de facto segregation, casually intimates
that Seattle’s school attendance patterns reflect illegal segre
gation, post, at 806, 819–820, 824,15 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 824–825, 830, highlights how far re
moved the discussion in the dissent is from the question actu
ally presented in these cases. McDaniel concerned a Geor
gia school system that had been segregated by law. There
was no doubt that the county had operated a “dual school
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 807, 810, 819, 824. The memoran
dum of agreement between Seattle and OCR, of course, contains no admis
sion by Seattle that such segregation ever existed or was ongoing at the
time of the agreement, and simply reflects a “desire to avoid the incoven
ience [sic] and expense of a formal OCR investigation,” which OCR was
obligated under law to initiate upon the filing of such a complaint. Memo
randum of Agreement between Seattle School District No. 1 of King
County, Washington, and the OCR, U. S. Dept. of Health, Education, and
Welfare 2 (June 9, 1978); see also 45 CFR § 80.7(c) (2006).

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system,” 402 U. S., at 41, and no one questions that the obli
gation 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 720–721. The
present cases are before us, however, because the Seattle
school district was never segregated by law, and the Jeffer
son County district has been found to be unitary, having
eliminated the vestiges of its prior dual status. The justifi
cation for race-conscious remedies in McDaniel is therefore
not applicable here. The dissent’s persistent refusal to ac
cept this distinction—its insistence on viewing the racial
classifications here as if they were just like the ones in Mc-
Daniel, “devised to overcome a history of segregated public
schools,” post, at 848—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 804–805, 823–829, with Brief for Respond
ents 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 823,
but nonetheless asserts that it demonstrates a “basic princi
ple of constitutional law” that provides “authoritative legal
guidance,” post, at 823, 831. Initially, as the Court ex
plained 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 831, 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).

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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 823. 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 dis
tricts’ 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,” post,
at 827, 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,
597–598, 237 N. E. 2d 498, 501 (1968), as evidence that “state
and federal courts had considered the matter settled and un
controversial.” Post, at 825. But Tometz addressed a chal
lenge 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 leg
islative 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.,

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719 S. W. 2d 350, 352–353 (Tex. App. 1986) (upholding rezon
ing plan under rational-basis review).16
Justice Breyer’s dissent next looks for authority to a
footnote in Washington v. Seattle School Dist. No. 1, 458
16 In fact, all the cases Justice Breyer’s dissent cites as evidence of
the “prevailing legal assumption,” see post, at 825–828, were decided be
fore this Court definitively determined that “all racial classifications . . .
must be analyzed by a reviewing court under strict scrutiny.” Adarand
Constructors, Inc. v. Pen˜ a, 515 U. S. 200, 227 (1995). Many proceeded
under the now-rejected view that classifications seeking to benefit a disad
vantaged 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 799–800, 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 assign
ment 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 800–803, 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 omitted).
The passage Justice Stevens quotes proves our point; all the quoted
language says is that the school committee “shall prepare a plan to elimi
nate imbalance.” Id., at 695, 227 N. E. 2d, at 731; see post, at 801, 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 some
how 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.

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U. S. 457, 472, n. 15 (1982), post, at 857, but there this Court
expressly noted that it was not passing on the propriety of
race-conscious student assignments in the absence of a find
ing of de jure segregation. Similarly, the citation of Craw
ford v. Board of Ed. of Los Angeles, 458 U. S. 527 (1982), post,
at 825, 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 842, 864–866, and accusing us of tacitly over
ruling that case, see post, at 864–866. The dissent over
reads Grutter, however, in suggesting that it renders pure
racial balancing a constitutionally compelling interest; Grut
ter 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 qualifica
tions and characteristics” in which race was but a single ele
ment. Id., 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 classify
ing every schoolchild as black or white, and using that classi
fication as a determinative factor in assigning children to
achieve pure racial balance, can be regarded as “less burden
some, and hence more narrowly tailored” than the consider
ation of race in Grutter, post, at 847, when the Court in Grut
ter stated that “[t]he importance of . . . individualized
consideration” in the program was “paramount,” and consid

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eration of race was one factor in a “highly individualized,
holistic review,” 539 U. S., at 337. Certainly if the constitu
tionality of the stark use of race in these cases were as estab
lished 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 866.
At the same time it relies on inapplicable desegregation
cases, misstatements of admitted dicta, and other noncontrol
ling 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 831–834, 836–837, arguing that a differ
ent standard of review should be applied because the dis
tricts use race for beneficent rather than malicious purposes,
see post, at 832–837.
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 em
phasis omitted)). Justice Breyer nonetheless relies on
the good intentions and motives of the school districts, stat
ing that he has found “no case that . . . repudiated this consti
tutional asymmetry between that which seeks to exclude and
that which seeks to include members of minority races.”
Post, at 830 (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, supra, at
227 (rejecting idea that “ ‘benign’ ” racial classifications may

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be held to “different standards”); Croson, 488 U. S., at 500
(“Racial classifications are suspect, and that means that sim
ple 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, stat
ing “[r]acial and ethnic distinctions of any sort are inher
ently suspect and thus call for the most exacting judicial
examination”).
The reasons for rejecting a motives test for racial classifi
cations are clear enough. “The Court’s emphasis on ‘benign
racial classifications’ suggests confidence in its ability to dis
tinguish good from harmful governmental uses of racial cri
teria. History should teach greater humility. . . . ‘[B]enign’
carries with it no independent meaning, but reflects only ac
ceptance of the current generation’s conclusion that a politi
cally 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 Ada
rand, 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 Broad
casting, 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 829–830. Again, this ap

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proach 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 prohib
ited,’ 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” (emphasis in original)); Metro Broad
casting, supra, at 636 (Kennedy, J., dissenting) (“[O]ur Con
stitution protects each citizen as an individual, not as a mem
ber of a group”); Bakke, supra, at 289 (opinion of Powell, J.)
(The Fourteenth Amendment creates rights “ ‘guaranteed
to the individual. The rights established are personal
rights’ ”). This fundamental principle goes back, in this con
text, to Brown itself. See Brown v. Board of Education,
349 U. S. 294, 300 (1955) (Brown II) (“At stake is the per
sonal interest of the plaintiffs in admission to public schools
. . . on a non-discriminatory basis” (emphasis added)). For
the dissent, in contrast, “ ‘individualized scrutiny’ is simply
beside the point.” Post, at 855.
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
867, but he is confident that the cost is worth paying. Our
established strict scrutiny test for racial classifications, how
ever, 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 tradi
tional sense of that word,” Justice Breyer still purports

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to apply strict scrutiny to these cases. See post, at 837. 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 con
sider race-neutral alternatives, the dissent concludes that
the districts have shown that these racial classifications are
necessary to achieve the districts’ stated goals. This conclu
sion 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 846.17 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 constitu
tional. 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 822, 848–
849, 866. 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,
supra, 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
17 Justice Breyer also tries to downplay the impact of the racial as
signments 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 846. This presumably refers to the
district’s decision to cease, for 2001–2002 school year assignments, apply
ing 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.

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equal protection analysis”); West Virginia Bd. of Ed. v. Bar
nette, 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 reg
ulations.” Post, at 861; see also post, at 828–829. But the
examples the dissent mentions—for example, a provision of
the No Child Left Behind Act of 2001 that requires States
to set measurable objectives to track the achievement of stu
dents from major racial and ethnic groups, 20 U. S. C.
§ 6311(b)(2)(C)(v) (2000 ed., Supp. IV)—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 858–862.
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 opin
ion 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 in
dividual students on the basis of their race and discriminat
ing 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

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solely because of their ancestry are by their very nature odi
ous 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 pro
mote “notions of racial inferiority and lead to a politics of
racial hostility,” Croson, 488 U. S., at 493 (plurality opinion),
“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 “en
dorse 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 ex
plained in Rice v. Cayetano, 528 U. S. 495, 517 (2000), “[o]ne
of the principal reasons race is treated as a forbidden classi
fication 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 state
ments 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 de
prived 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

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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 pre
vents states from according differential treatment to Ameri
can 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, O. T. 1952, No. 8,
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 “de
termining 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

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Jefferson County, the way “to achieve a system of determin
ing admission to the public schools on a nonracial basis,”
Brown II, supra, 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.
Justice Thomas, concurring.
Today, the Court holds that state entities may not experi
ment with race-based means to achieve ends they deem so
cially desirable. I wholly concur in The Chief Justice’s
opinion. I write separately to address several of the conten
tions in Justice Breyer’s dissent (hereinafter dissent).
Contrary to the dissent’s arguments, resegregation is not oc
curring 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 uncon
stitutional. 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 de
cisions 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

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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 im
balance 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 im
portant 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 Mon
roe v. Board of Comm’rs of Jackson, 391 U. S. 450, 452 (1968).
In Brown, this Court declared that segregation was uncon
stitutional under the Equal Protection Clause of the Four
teenth 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 offi
cials, 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”).1
Racial imbalance is the failure of a school district’s indi
vidual schools to match or approximate the demographic
makeup of the student population at large. Cf. Washington
1 In this Court’s paradigmatic segregation cases, there was a local ordi
nance, state statute, or state constitutional provision requiring racial sepa
ration. See, e. g., Brief for Petitioners in Bolling v. Sharpe, O. T. 1952,
No. 413, pp. 28–30 (cataloging state laws requiring separation of the races);
id., at App. A (listing “Statutory and Constitutional Provisions in the
States Where Segregation in Education is Institutionalized”).

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v. Seattle School Dist. No. 1, 458 U. S. 457, 460 (1982). Ra
cial imbalance is not segregation.2 Although presently ob
served racial imbalance might result from past de jure seg
regation, 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. Day
ton 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) (“Ra
cial 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 estab
lished or that Louisville has reestablished a dual school sys
tem that separates students on the basis of race. The sta
tistics 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.3
2 The dissent refers repeatedly and reverently to “ ‘integration.’ ” How
ever, outside of the context of remediation for past de jure segregation,
“integration” is simply racial balancing. See post, at 838. Therefore, the
school districts’ attempts to further “integrate” are properly thought of as
little more than attempts to achieve a particular racial balance.
3 The dissent’s assertion that these plans are necessary for the school
districts to maintain their “hard-won gains” reveals its conflation of segre
gation and racial imbalance. Ibid. For the dissent’s purposes, the rele
vant hard-won gains are the present racial compositions in the individ

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B
Just as the school districts lack an interest in preventing
resegregation, they also have no present interest in remedy
ing past segregation. The Constitution generally prohibits
government race-based decisionmaking, but this Court has
authorized the use of race-based measures for remedial pur
poses in two narrowly defined circumstances. First, in
schools that were formerly segregated by law, race-based
measures are sometimes constitutionally compelled to rem
edy 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 explic
itly 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 per
missible race-based remediation.
1
The Constitution does not permit race-based government
decisionmaking simply because a school district claims a re
medial purpose and proceeds in good faith with arguably
pure motives. Grutter v. Bollinger, 539 U. S. 306, 371 (2003)
ual 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 elimina
tion 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 inher
ent equality that underlies and infuses our Constitution” required the dis
establishment of de jure segregation. See Adarand Constructors, Inc. v.
Pen˜ a, 515 U. S. 200, 240 (1995) (Thomas, J., concurring in part and concur
ring in judgment). Assessed in any objective manner, there is no compar
ison between the two.

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(Thomas, J., concurring in part and dissenting in part) (citing
Adarand Constructors, Inc. v. Pen˜ a, 515 U. S. 200, 239 (1995)
(Scalia, J., concurring in part and concurring in judgment)).
Rather, race-based government decisionmaking is categori
cally prohibited unless narrowly tailored to serve a compel
ling 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 circum
stances irrelevant and therefore prohibited”). And appro
priately so. “The Constitution abhors classifications based
on race, not only because those classifications can harm fa
vored 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 bur
dens 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 con
text—is unconstitutional.
2
This Court has carved out a narrow exception to that gen
eral rule for cases in which a school district has a “history
of maintaining two sets of schools in a single school system
deliberately operated to carry out a governmental policy to
separate pupils in schools solely on the basis of race.” 4
Swann, 402 U. S., at 5–6. In such cases, race-based reme
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
820–821. 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 843–844.

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dial measures are sometimes required.5 Green, 391 U. S., at
437–438; cf. United States v. Fordice, 505 U. S. 717, 745 (1992)
(Thomas, J., concurring).6 But without a history of state
enforced racial separation, a school district has no affirmative
legal obligation to take race-based remedial measures 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 Constitu
tion did not require Seattle’s plan.7 Although Louisville
5 This Court’s opinion in McDaniel v. Barresi, 402 U. S. 39 (1971), fits
comfortably within this framework. There, a Georgia school board volun
tarily 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. VIII, § 2–6401 (1945). 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.
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)
(concurring opinion). Sustained resistance to Brown prompted the Court
to authorize extraordinary race-conscious remedial measures (like com
pelled racial mixing) to turn the Constitution’s dictate to desegregate into
reality. 515 U. S., at 125 (Thomas, J., concurring). Even if these meas
ures were appropriate as remedies in the face of widespread resistance to
Brown’s mandate, they are not forever insulated from constitutional scru
tiny. 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).
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 873–875, 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 Associa
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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 deseg
regation decree, was not even arguably required by the
Constitution.
3
Aside from constitutionally compelled remediation in
schools, this Court has permitted government units to rem
edy 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 ac
tions 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 Re
spondents 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 seg
regation,” Tr. of Oral Arg. in No. 05–915, p. 38.
Furthermore, for a government unit to remedy past dis
crimination for which it was responsible, the Court has re
quired it to demonstrate “a ‘strong basis in evidence for its
conclusion that remedial action was necessary.’ ” Croson,
in court filings to the effect that Seattle’s schools were once segregated
by law. See post, at 808–810, 824. These allegations were never proved
and were not even made in this case. Indeed, the record before us sug
gests the contrary. See App. in No. 05–908, pp. 214a, 225a, 257a. Past
allegations in another case provide no basis for resolving these cases.

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supra, at 500 (quoting Wygant, supra, at 277 (plurality opin
ion)). 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 “in
herently unmeasurable claims of past wrongs,” id., at 506.
Assertions of general societal discrimination are plainly in
sufficient. 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 at
tempts to make up for this failing by adverting to allegations
made in past complaints filed against the Seattle school dis
trict. 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 (plural
ity opinion). As for Louisville, its slate was cleared by the
District Court’s 2000 dissolution decree, which effectively de
clared that there were no longer any effects of de jure dis
crimination in need of remediation.8
8 Contrary to the dissent’s argument, post, at 844–845, the Louisville
school district’s interest in remedying its past de jure segregation did van
ish 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, 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 asso
ciated 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 856, 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 excep
tion to the Equal Protection Clause’s general rule against government
race-based decisionmaking.

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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 pro
grams are subject to the general rule that government race
based decisionmaking is unconstitutional.
C
As the foregoing demonstrates, racial balancing is some
times 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 accept
able 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 remedia
tion of racial imbalance. First, as demonstrated above, the
two concepts are distinct. Although racial imbalance can re
sult 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 Free
man, 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 ulti
mate remedy for racial imbalance. Individual schools will
fall in and out of balance in the natural course, and the appro
priate balance itself will shift with a school district’s chang

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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 out
right 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 fer
vent debate. Ultimately, the dissent’s entire analysis is cor
rupted 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 assur
ances of harmlessness with reflexive acceptance of conven
tional 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 oppress
ing 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 con
sidered because they are “certainly more benign than laws

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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 ad
dressed,” id., at 29; 426 F. 3d, at 1195 (Kozinski, J., concur
ring). 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.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; John
son v. California, 543 U. S. 499, 505 (2005) (“We have in
sisted on strict scrutiny in every context, even for so-called
‘benign’ racial classifications”).10 There are good reasons
not to apply a lesser standard to these cases. The constitu
tional problems with government race-based decisionmaking
are not diminished in the slightest by the presence or ab
sence of an intent to oppress any race or by the real or as
serted well-meaning motives for the race-based decision
making. Adarand, 515 U. S., at 228–229. Purportedly
benign race-based decisionmaking suffers the same consti
tutional infirmity as invidious race-based decisionmaking.
9 The dissent’s appeal to stare decisis, post, at 866, is particularly ironic
in light of its apparent willingness to depart from these precedents, post,
at 837.
10 The idea that government racial classifications must be subjected to
strict scrutiny did not originate in Adarand. As early as Loving v. Vir
ginia, 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 the 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”).

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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 discrimi
nation.” 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, hun
dreds of letters like this went out from both school boards
every year these race-based assignment plans were in opera
tion. 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 “pro
voke[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

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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]nte
gration,’ ” 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 segre
gation.” Ibid. For the reasons explained above, the rec
ords 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 impos
ing 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. Conse
quently, school boards seeking to remedy those societal prob
lems 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,” Wy
gant, 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”).

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Because the school boards lack any further interest in rem
edying 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 ra
cially 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 Achieve
ment: 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, & Ver
dugo, High-Quality Schooling for African American Stu
dents, in Beyond Desegregation 162, 166 (M. Shujaa ed. 1996)
(“Perhaps desegregation does not have a single effect, posi
tive 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 de
tracts 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 diver
gence of opinion. Supporting the school boards, one amicus

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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 spe
cific details like the magnitude of the claimed positive effects
or the precise demographic mix at which those positive ef
fects 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, ac
knowledging 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 15.11
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 determi
nant 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
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 Halli
nan, 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 minor
ity 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 corre
lated with educational benefits does not support a compelling interest in
the use of race to achieve academic results.

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fects student achievement”). Another amicus surveys sev
eral social science studies and concludes that “a fair and com
prehensive 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 exam
ple. See id., at 10–32 (discussing other successful black
schools); Walker, Can Institutions Care? Evidence from the
Segregated Schooling of African American Children, in Be
yond 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 pre
dominantly black enrollments have achieved outstanding ed
ucational 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. Therns
trom, 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 His
panic 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).

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The Seattle School Board itself must believe that racial
mixing is not necessary to black achievement. Seattle oper
ates a K–8 “African-American Academy,” which has a “non
white” 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.” 12 See African Ameri
can 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 report
edly 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 chil
dren in Seattle’s African American Academy have shown
gains when placed in a “highly segregated” environment.
Given this tenuous relationship between forced racial mix
ing and improved educational results for black children, the
dissent cannot plausibly maintain that an educational ele
ment supports the integration interest, let alone makes it
compelling.13 See Jenkins, 515 U. S., at 121–122 (Thomas,
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 dere
liction of its duty to educate the students enrolled in that school.
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 re
sults in the 2004-to-2005 school year (in which student assignments were
race neutral) does not indicate the decline in black achievement one would
expect to find if black achievement were contingent upon a particular
racial mix. See Washington State Report Card, online at http://report
card.ospi.k12.wa.us/summary.aspx?schoolId=1099&OrgType=4&reportLevel

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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 demo
cratically elected school board reasonably to determine that
this interest is a compelling one.” Post, at 839. This asser
tion 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 quali
fies 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 edu
cation. 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 Wil
liamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 488
(1955) (“It is enough that there is an evil at hand for correc
=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&reportLevel=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, Garfield High School, and Franklin
High School—some of the schools most affected by the plan).

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tion, and that it might be thought that the particular legisla
tive measure was a rational way to correct it”). Further
more, it would leave our equal protection jurisprudence at
the mercy of elected government officials evaluating the eva
nescent views of a handful of social scientists. To adopt the
dissent’s deferential approach would be to abdicate our con
stitutional responsibilities.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 840.15 Environmental reflection, though, is
14 The dissent accuses me of “feel[ing] confident that, to end invidious
discrimination, one must end all governmental use of race-conscious crite
ria” and chastises me for not deferring to democratically elected majori
ties. See post, at 862. 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 dic
tates that local governments cannot make decisions on the basis of race.
Consequently, regardless of the perceived negative effects of racial imbal
ance, 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.
15 The notion that a “democratic” interest qualifies as a compelling inter
est (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 com
pelling. See Grutter v. Bollinger, 539 U. S. 306, 351–354 (2003) (Thomas,
J., concurring in part and dissenting in part). The Fourteenth Amend

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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 Na
tion.” Post, at 840. These “generic lessons in socialization
and good citizenship” are too sweeping to qualify as compel
ling interests. Grutter, 539 U. S., at 348 (Scalia, J., concur
ring 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 gov
ernments may constitutionally use racial balancing to
achieve these aspirational ends in schools, they may use ra
cial 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 al
ways 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
ment 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 So
cial Statics”).

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and “timeless in [its] ability to affect the future,” id., at 276,
cannot justify government race-based decisionmaking.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 over
states 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 prej
udiced than those in segregated schools.” Post, at 841 (in
ternal 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 fre
quently group students by academic ability as an aid to effi
cient instruction, but such groupings often result in class
rooms with high concentrations of one race or another. See,
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 the
ory 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. 1985, No. 84–1340, pp. 27–28; Wygant, 476 U. S., at 315
(Stevens, J., dissenting)). The Court rejected the interests asserted to
justify the layoff program as insufficiently compelling. Id., 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 cooper
ation, 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.

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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) (de
scribing this effect in schools in Charlotte, North Carolina).
In addition to classroom separation, students of different
races within the same school may separate themselves so
cially. 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 rela
tions, 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 nec
essarily mean that the students will learn together or even
interact.
Furthermore, it is unclear whether increased interracial
contact improves racial attitudes and relations.17 One re
searcher 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 . . . [;]
17 Outside the school context, this Court’s cases reflect the fact that ra
cial mixing does not always lead to harmony and understanding. In John
son 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 (opinion of the Court); 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. 521, 536–537 (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).

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virtually all of the reviewers determined that few, if any,
firm conclusions about the impact of desegregation on inter
group relations could be drawn.” Schofield, School Deseg
regation and Intergroup Relations: A Review of the Litera
ture, in 17 Review of Research in Education 335, 356 (G.
Grant ed. 1991). Some studies have even found that a de
terioration 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 De
segregation: An Evaluation 30 Years After Brown, in 3 Ad
vances in Applied Social Psychology 181, 183–186 (M. Saks
& L. Saxe eds. 1986). Therefore, it is not nearly as appar
ent as the dissent suggests that increased interracial expo
sure 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.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 841–
842. Regardless of the merit of Grutter, the compel
ling 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
18 After discussing the “democratic element,” the dissent repeats its as
sertion that the social science evidence supporting that interest is “suffi
ciently strong to permit a school board to determine . . . that this interest
is compelling.” Post, at 841. 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).

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328. This interest was critically dependent upon features
unique to higher education: “the expansive freedoms of
speech and thought associated with the university environ
ment,” the “special niche in our constitutional tradition” oc
cupied 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 ele
mentary and secondary schools. Those schools do not select
their own students, and education in the elementary and sec
ondary environment generally does not involve the free in
terchange of ideas thought to be an integral part of higher
education. See 426 F. 3d, at 1208 (Bea, J., dissenting). Ex
tending 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 rec
ognizing 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 plausi
bly 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 stu
dent 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.

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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 Mem
bers of today’s plurality.19 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 Four
teenth Amendment precludes a state from imposing distinc
tions or classifications based upon race and color alone”); 20
19 The dissent halfheartedly attacks the historical underpinnings of the
colorblind Constitution. Post, at 829–830. I have no quarrel with the
proposition that the Fourteenth Amendment sought to bring former slaves
into American society as full members. Post, at 829 (citing Slaughter-
House Cases, 16 Wall. 36, 71–72 (1873)). What the dissent fails to un
derstand, however, is that the colorblind Constitution does not bar the
government from taking measures to remedy past state-sponsored dis
crimination—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 colorblind Constitution.
20 See also Juris. Statement in Davis v. County School Board, O. T. 1952,
No. 191, 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. 8, 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

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see also In Memoriam: Honorable Thurgood Marshall, Pro
ceedings of the Bar and Officers of the Supreme Court of the
United States, p. x (1993) (remarks of Judge Motley) (“Mar
shall had a ‘Bible’ to which he turned during his most de
pressed 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 expecta
tions, deference to local officials, likely practical conse
quences, and reliance on previous statements from this and
other courts. Such a view was ascendant in this Court’s ju
risprudence 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 rea
sonableness “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 promo
tion 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 author
izes or even requires the separation of the two races in public
conveyances is unreasonable, or more obnoxious to the Four
teenth Amendment than the acts of Congress requiring sepa
rate 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
v. Elliott et al., O. T. 1953, No. 2 etc., p. 50 (“[T]he state is deprived of any
power to make any racial classifications in any governmental field”).

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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 estab
lish a school system which is capable of efficient administra
tion, taking into account local problems and conditions”).21
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
21 See also Brief for Appellees in Davis v. County School Board, O. T.
1952, No. 191, 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 his
tory and present Virginia conditions are important”); Tr. of Oral Arg. in
Davis v. County School Board, O. T. 1952, No. 191, 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 tra
ditions and the mores of what we might claim to be a great people, estab
lished through generations, who themselves are fiercely and irrevocably
dedicated to the preservation of the white and colored races”). Accord,
post, at 868 (“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. In
deed, the very school districts that once spurned integration now strive
for it. The long history of their efforts reveals the complexities and diffi
culties they have faced”); post, at 822 (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” (internal
quotation marks omitted)); post, at 848 (emphasizing the school districts’
“40-year history” during which both school districts have tried numerous
approaches “to achieve more integrated schools”); post, at 863–864 (“[T]he
histories of Louisville and Seattle reveal complex circumstances and a long
tradition of conscientious efforts by local school boards”).

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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 valid
ity of the statute that enables the Topeka Board of Education
to determine its own course”).22 The dissent argues that to
day’s decision “threatens to substitute for present calm a dis
ruptive 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
22 See also Brief for Appellees in Brown v. Board of Education, O. T.
1952, No. 8, 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 (EDSC 1951))); Brief for Appellees in Briggs
v. Elliott, O. T. 1952, No. 101, 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 pro
foundly true than in the field of education”); Tr. of Oral Arg. in Briggs v.
Elliott, O. T. 1952, No. 101, 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 govern
ment the one which most nearly approaches the hearts and minds of peo
ple, 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 par
ents, both white and colored, should be ascertained before their children
are forced into what may be an unwelcome contact?”). Accord, post, at
849 (“[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 866 (“[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”).

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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 di
rectly in more fundamental interests and, in fact, cause more
chaos in local government than a reversal of the decision in
this case”).23 And foreshadowing today’s dissent, the segre
gationists 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”).24
23 See also Brief for Appellees in Reply to Supp. Brief for the United
States on Reargument in Davis v. County School Board, O. T. 1953, No. 4,
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 Educa
tion, O. T. 1953, No. 1, p. 51 (“The delicate nature of the problem of segre
gation 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 861 (“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 educa
tional or other purposes. . . . In many such instances, the contentious force
of legal challenges to these classifications, meritorious or not, would dis
place earlier calm”); post, at 865 (“Indeed, the consequences of the ap
proach the Court takes today are serious. Yesterday, the plans under
review were lawful. Today, they are not”); post, at 866 (predicting “fur
ther litigation, aggravating race-related conflict”).
24 See also Statement of Appellees Opposing Jurisdiction and Motion to
Dismiss or Affirm in Davis v. County School Board, O. T. 1952, No. 191,
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 on Reargument in Davis v. County
School Board, O. T. 1953, No. 4, pp. 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

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The similarities between the dissent’s arguments and the
segregationists’ arguments do not stop there. Like the dis
sent, the segregationists repeatedly cautioned the Court to
consider practicalities and not to embrace too theoretical a
view of the Fourteenth Amendment.25 And just as the dis
school segregation”); Brief for Petitioners in Gebhart v. Belton, O. T. 1952,
No. 448, 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 et al., O. T. 1953, No. 2 etc., at 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 discre
tion 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 sepa
rate 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”); App. D to Brief for Appellees in
Briggs v. Elliott, O. T. 1952, No. 101 (collecting citations of state and fed
eral 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 823 (“[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” (internal quotation marks
omitted)); post, at 825–826 (“Lower state and federal courts had consid
ered the matter settled and uncontroversial even before this Court decided
Swann”); post, at 827 (“Numerous state and federal courts explicitly relied
upon Swann’s guidance for decades to follow”); post, at 828 (stating “how
lower courts understood and followed Swann’s enunciation of the relevant
legal principle”); post, at 831 (“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 guid
ance”); post, at 861 (“[T]oday’s opinion will require setting aside the laws
of several States and many local communities”); post, at 866 (“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 writ
ten out of the law”).
25 Compare Brief for Appellees in Davis v. County School Board, O. T.
1952, No. 191, at 16–17 (“ ‘It is by such practical considerations based on

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sent argues that the need for these programs will lessen over
time, the segregationists claimed that reliance on segrega
tion was lessening and might eventually end.26
What was wrong in 1954 cannot be right today.27 What
ever else the Court’s rejection of the segregationists’ argu
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. 106, 110 (1949))); Brief for Appellees on Reargu
ment in Davis v. County School Board, O. T. 1953, No. 4, at 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 Briggs
v. Elliott et al., O. T. 1953, No. 2 etc., at 86 (“[Y]ou cannot talk about this
problem just in a vacuum in the manner of a law school discussion”), with
post, at 858 (“The Founders meant the Constitution as a practical
document”).
26 Compare Brief for Kansas on Reargument in Brown v. Board of Edu
cation, O. T. 1953, No. 1, at 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. 4, at 76 (“As time passes, it may well be that
segregation will end”), with post, at 820 (“[T]hey use race-conscious crite
ria in limited and gradually diminishing ways”); post, at 848 (“[E]ach plan’s
use of race-conscious elements is diminished compared to the use of race
in preceding integration plans”); post, at 855 (describing the “historically
diminishing use of race” in the school districts).
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 863–864. 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 et al., O. T. 1953, No. 2 etc., at 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. 4, at 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. 191, at 71

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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 govern
ments had been discriminating on the basis of race for a long
time was irrelevant to the Brown Court. The fact that ra
cial discrimination was preferable to the relevant communi
ties 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 be
cause no contextual detail—or collection of contextual de
tails, post, at 804–823—can “provide refuge from the princi
ple 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).28
(“[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 on
ward sweep”). It is the height of arrogance for Members of this Court to
assert blindly that their motives are better than others.
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 ex
perimentation 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 on
Reargument in Briggs v. Elliott et al., O. T. 1953, No. 2 etc., pp. 18–19

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In place of the colorblind Constitution, the dissent would
permit measures to keep the races together and proscribe
measures to keep the races apart.29 See post, at 829–835,
865. Although no such distinction is apparent in the Four
teenth Amendment, the dissent would constitutionalize to
day’s faddish social theories that embrace that distinction.
The Constitution is not that malleable. Even if current so
cial 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
(“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”).
29 The dissent does not face the complicated questions attending its pro
posed 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 of bringing the races together? What about
historically black colleges, which have “established traditions and pro
grams 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 con
tours of the distinction it propounds rest entirely in the eye of the
beholder.

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us to beware of elites bearing racial theories.30 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
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 un
willing to delegate my constitutional responsibilities to local school boards
and allow them to experiment with race-based decisionmaking on the as
sumption 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 the
ories 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 Web
site 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 invisi
ble. Examples of these norms include defining white skin tones as nude
or flesh colored, having a future time orientation, emphasizing individual
ism 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,
pp. B1, B5. After the site was removed, the district offered the comfort
ing clarification that the site was not intended “ ‘to hold onto unsuccessful
concepts such as melting pot or colorblind mentality.’ ” Ibid.; see also
ante, at 730, n. 14 (plurality opinion).
More recently, the school district sent a delegation of high school stu
dents to a “White Privilege Conference.” See Equity and Race Rela
tions White Privilege Conference, http://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, District’s Ob
sessed with Race, Seattle Times, Apr. 1, 2007, p. B1 (describing racial
issues in Seattle schools).

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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.
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 them
selves 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 clas
sifications 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 rea
sons 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 implica
tions with the history, meaning, and reach of the Equal Pro

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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 opin
ion is necessary to set forth my conclusions in the two cases
before the Court.
I
The opinion of the Court and Justice Breyer’s dissent
ing opinion (hereinafter dissent) describe in detail the his
tory 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 sub
jected 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. Pen˜ a, 515 U. S. 200, 227 (1995)). “Absent searching judi
cial inquiry into the justification for such race-based meas
ures, there is simply no way of determining what classifica
tions 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

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into less restrictive alternatives demanded by the narrow
tailoring analysis requires in many cases a thorough under
standing 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 deci
sions 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 deci
sion 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 appli
cations 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 assign
ment 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 Stu
dent 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 Pri
mary 2 (Grade One)”).
The discrepancy identified is not some simple and straight
forward error that touches only upon the peripheries of the
district’s use of individual racial classifications. To the con
trary, Jefferson County in its briefing has explained how and

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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 ex
planation); 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 en
courage 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, comprehen
sive 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 elemen
tary 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 ad
mission to [an elementary school student’s] resides school,
except attainment of the appropriate age and completion of

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the previous grade”), with App. in No. 05–915, at 38 (“Deci
sions 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 assign
ment 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 re
spects 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 scru
tiny, 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 as
signment decisions on the basis of individual racial classifi
cations. 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 enroll
ments; (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

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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 stu
dent 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-too
unyielding insistence that race cannot be a factor in instances
when, in my view, it may be taken into account. The plural
ity opinion is too dismissive of the legitimate interest gov

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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 suffi
cient 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 resegrega
tion in schooling. I cannot endorse that conclusion. To the
extent the plurality opinion suggests the Constitution man
dates 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 Har
lan’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 com
position. 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 edu
cational opportunity to all of their students, they are free to
devise race-conscious measures to address the problem in a

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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 spe
cial 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 conscious
ness 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 legis
lative 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 con
stitutional violation does not occur whenever a decision
maker 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 individ
ual racial classifications is quite a different matter; and the
legal analysis changes accordingly.
Each respondent has asserted that its assignment of in
dividual 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

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(“The history of racial classifications in this country suggests
that blind judicial deference to legislative or executive pro
nouncements 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 classi
fications 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 eval
uation 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 exist
ing precedents; that its confident endorsement of race cate
gories for each child in a large segment of the community
presents no danger to individual freedom in other, prospec
tive 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

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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 opin
ion are correct, in my view, because the compelling interests
implicated in the cases before us are distinct from the inter
ests 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 diver
sity 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 in
terpreted to foreclose consideration of these interests, I dis
agree 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 scru
tiny (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, Con
gress, assuming an otherwise proper exercise of its spending
authority or commerce power, could mandate either the Se
attle or the Jefferson County plans nationwide. There
seems to be no principled rule, moreover, to limit the dis
sent’s rationale to the context of public schools. The dissent
emphasizes local control, see post, at 848–849, the unique his
tory 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.

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This brings us to the dissent’s reliance on the Court’s opin
ions 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 Grut
ter, 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., dissent
ing); 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 Author
ity, 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 re
liance 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 univer
sities 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 kindergar
ten 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 author
ity to sustain the racial classifications under consideration
here.

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The same must be said for the controlling opinion in Grut
ter. 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 mechan
ical formula that has denied hundreds of students their pre
ferred schools on the basis of three rigid criteria: placement
of siblings, distance from schools, and race. If those stu
dents 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 discrimina
tion. 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 treat
ment 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 refer
ence 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

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under court supervision or pursuant to voluntary desegrega
tion efforts, but to resort to extraordinary measures includ
ing 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 distinc
tions 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 in
sisted upon some showing of prior discrimination by the gov
ernmental 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 ‘reme
dial relief ’ for every disadvantaged group. The dream

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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 im
portant 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, how
ever, when we come to that most sensitive of all racial issues,
an attempt by the government to treat whole classes of per
sons differently based on the government’s systematic classi
fication of each individual by race. There, too, the distinc
tion 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 govern
ment can undertake. The allocation of governmental bur
dens 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

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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 segre
gation 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 na
ture, extent, and duration of governmental reliance on indi
vidual racial classifications.
The cases here were argued upon the assumption, and
come to us on the premise, that the discrimination in ques
tion did not result from de jure actions. And when de facto
discrimination is at issue our tradition has been that the re
medial rules are different. The State must seek alterna
tives to the classification and differential treatment of indi
viduals 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 un
derlying 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 fash
ion and solve it altogether through resort to direct assign
ments based on student racial classifications? So, the argu

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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 de
fine 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 indi
viduals 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 compel
ling 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

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compelling interest to achieve a diverse student population.
Race may be one component of that diversity, but other de
mographic 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 cre
ativity of experts, parents, administrators, and other con
cerned citizens to find a way to achieve the compelling inter
ests 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.
Justice Stevens, dissenting.
While I join Justice Breyer’s eloquent and unanswer
able 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

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(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.” 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 at
tend black schools.2 In this and other ways, The Chief
Justice rewrites the history of one of this Court’s most im
portant 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.3 The only justification for
1 Le Lys Rouge (The Red Lily) 95 (W. Stephens transl. 6th ed. 1922).
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 (1960) (“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 in itself hardly consorts with
equality”).
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. Pen˜ a, 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 educa
tion. While the focus of our opinions is often on the benefits that minority
schoolchildren receive from an integrated education, see, e. g., ante, at 761
(Thomas, J., concurring), children of all races benefit from integrated

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refusing to acknowledge the obvious importance of that dif
ference 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 scru
tiny.” See, e. g., Adarand Constructors, Inc. v. Pen˜ a, 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., concur
ring); 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).4
If we look at cases decided during the interim between
Brown and Adarand, we can see how a rigid adherence to
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”).
4 The Chief Justice twice cites my dissent in Fullilove v. Klutznick,
448 U. S. 448 (1980). See ante, at 720, 730–731. 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’] action[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
(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”).

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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 up
holding a state statute mandating racial integration in that
State’s school system. See School Comm. of Boston v.
Board of Education, 352 Mass. 693, 227 N. E. 2d 729.5 Re
jecting arguments comparable to those that the plurality
accepts today,6 that court noted: “It would be the height of
irony if the racial imbalance act, enacted as it was with the
laudable purpose of achieving equal educational opportuni
ties, should, by prescribing school pupil allocations based
5 The Chief Justice states that the Massachusetts racial imbalance
Act did not require express classifications. See ante, at 739, n. 16.
This is incorrect. The Massachusetts Supreme Judicial Court expressly
stated:
“The racial imbalance act requires the school committee of every munici
pality 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 elimi
nate imbalance and file a copy with the board. ‘The term “racial imbal
ance” 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 pur
pose 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.
6 Compare ante, at 746 (“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. State
ment in School Comm. of Boston v. Board of Education, O. T. 1967, No.
759, p. 11 (“It is implicit in Brown v. Board of Education[,] 347 U. S. 483
[(1954)], 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. Fergu
son, 163 U. S. 537, 559 [(1896) (dissenting opinion)]: ‘Our Constitution is
color-blind, and neither knows nor tolerates classes among citizens’ ”).

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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,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 cu
riam). 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 deci
sions cited by Justice Breyer, see post, at 825–828,8 were
7 In 1968 our mandatory jurisdiction was defined by the provision of the
1948 Judicial Code then codified at 28 U. S. C. § 1257, see 62 Stat. 929; that
provision was repealed in 1988, see 102 Stat. 662.
8 For example, prior to our decision in School Comm. of Boston, the
Illinois Supreme Court had issued an unpublished opinion holding uncon
stitutional 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. 759, at 9 (“Unlike the Massachusetts Court, the
Illinois Supreme Court has recently held its law to eliminate racial imbal
ance 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 stat
ute in the published decision that Justice Breyer extensively quotes in
his dissent. See Tometz v. Board of Ed., Waukegan City School Dist.
No. 61, 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”).

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fully consistent with that disposition. Unlike today’s deci
sion, 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.
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 “nar
rowly tailored” plans that are no less race conscious than the
plans before us. And we have understood that the Constitu
tion 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 prece
dent, 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 re
segregation 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

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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 govern
ment’s segregation of schoolchildren by race violates the
Constitution’s promise of equal protection. The Court em
phasized that “education is perhaps the most important func
tion of state and local governments.” 347 U. S., at 493.
And it thereby set the Nation on a path toward public
school integration.
In dozens of subsequent cases, this Court told school dis
tricts 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., Colum
bus 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 per
mitted, 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

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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, includ
ing race-conscious plans, all with a similar objective: greater
racial integration of public schools. See F. Welch & A.
Light, New Evidence on School Desegregation, p. v (1987)
(hereinafter Welch) (prepared for the Commission on Civil
Rights) (reviewing a sample of 125 school districts, constitut
ing 20% of national public school enrollment, that had experi
mented with nearly 300 different plans over 18 years). The
techniques that different districts have employed range
“from voluntary transfer programs to mandatory reassign
ment.” 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 in
tegration. More recently, however, progress has stalled.
Between 1968 and 1980, the number of black children attend
ing 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,

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2.3 million were black and Latino students, and only 72,000
were white. Today, more than one in six black children at
tend a school that is 99%–100% minority. See Appendix A,
infra. In light of the evident risk of a return to school sys
tems 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 ear
lier school segregation, bringing about integration, or pre
venting 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 “nar
rowly 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 plu
rality’s endeavor to find support for its views in that distinc
tion. Third, real-world efforts to substitute racially diverse
for racially segregated schools (however caused) are com
plex, 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 sepa
rating the races. In Seattle, the plaintiffs alleged that
school segregation unconstitutionally reflected not only gen
eralized societal discrimination and residential housing pat

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terns, 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 exposi
tion I have cataloged, along with their corresponding cita
tions, 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 seg
regation reflected not only segregated housing patterns but
also school board policies that permitted white students to

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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 chil
dren 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 Re
sponse, 1966 to 1977. In 1966, 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 ele
mentary 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 stu

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dents 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 en
forc[ing]” certain “rules and regulations,” in part by “draw
ing . . . 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 dis
criminated 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 explic
itly racial criteria in making these assignments (i. e., it delib
erately assigned to the new middle schools black students,
not white students, from the black schools and white stu
dents, not black students, from the white schools). And it
used busing to transport the students to their new assign
ments. 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

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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 Of
fice 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 crite
ria, a construction program that needlessly built new schools
in white areas, district line-drawing criteria, the mainte
nance 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 implementa
tion of promised desegregation efforts.
The OCR and the school board entered into a formal set
tlement 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), Gar
field (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 pre
viously 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.

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At the same time, the plan provided that a previous
“black” school would remain about 50% black, while a previ
ous “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 per
centage goals by assigning to the new “mixed” school an ap
propriate 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 stu
dents 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 exam
ple, 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 Wash
ington 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 initia
tive. 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

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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 substi
tute 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 neigh
borhoods 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 neighbor
hood. 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% re
ceived 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

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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; with
out 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 tie
breaker had not been used for several years, Franklin’s over
all minority enrollment had risen to 90%. During the period
the tiebreaker applied, it typically affected about 300 stu
dents per year. Between 80% and 90% of all students re
ceived their first choice assignment; between 89% and 97%
received their first or second choice assignment.
Petitioner Parents Involved in Community Schools ob
jected to Seattle’s most recent plan under the State and Fed
eral 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 re
quire racial segregation by law, the Louisville Board of Edu

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cation 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 approx
imately 3,000 of Louisville’s 46,000 students applied for
transfer. By 1972, however, the Louisville School District
remained highly segregated. Approximately half the dis
trict’s public school enrollment was black; about half was
white. Fourteen of the district’s nineteen nonvocational
middle and high schools were close to totally black or to
tally white. Nineteen of the district’s forty-six elementary
schools were between 80% and 100% black. Twenty-one ele
mentary 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 unconstitu
tional 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, approxi
mately 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 ex
ception), between 12.5% and 35% black.
The District Court also adopted a complex desegregation
plan designed to achieve the order’s targets. The plan re
quired 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

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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:
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.”

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By 1984, after several schools had fallen out of compliance
with the order’s racial percentages due to shifting demo
graphics in the community, the school board revised its de
segregation plan. In doing so, the board created a new ra
cial “guideline,” namely a “floating range of 10% above and
10% below the countywide average for the different grade
levels.” The board simultaneously redrew district bound
aries 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 elemen
tary school years had proved educationally unsound and, if
continued, would undermine Kentucky’s newly adopted Edu
cation 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 conclu
sion of this review, the board adopted a new plan, called
“Project Renaissance,” that emphasized student choice.
Project Renaissance again revised the board’s racial guide
lines. 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 assign
ment zones designed to satisfy these guidelines; the district
could reassign students if particular schools failed to meet

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the guidelines and was required to do so if a school repeat
edly 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 (1) was black
if transferring from a predominantly black school to a pre
dominantly white school, or (2) was white if transferring
from a predominantly white school to a predominantly black
school. Students could also apply to attend magnet elemen
tary schools or programs.
The plan required each middle school student to be as
signed 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 sys
tem, 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 ap
proximately 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

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available to elementary and middle school pupils. The plan
forbade transfers, however, if the transfer would lead to a
school population outside the guidelines 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 ele
mentary, middle or high school level.” And the plan contin
ued 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 disso
lution, arguing that “the old dual system” had left a “demo
graphic imbalance” that “prevent[ed] dissolution.” In 2000,
after reviewing the present plan, the District Court dis
solved the 1975 order. It wrote that there was “overwhelm
ing 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 un
constitutional the use of race-based “targets” to govern ad
mission to magnet schools. And it ordered the board not to
control access to those scarce programs through the use of
racial targets.

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5. The Current Lawsuit, 2003 to the Present. Subse
quent 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, Crys
tal Meredith, brought this lawsuit challenging the plan’s un
modified portions, i. e., those portions that dealt with ordi
nary, not magnet, schools. Both the District Court and
the Court of Appeals for the Sixth Circuit rejected Mere
dith’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 integra
tion efforts in earnest when a federal court in 1975 entered
a school desegregation order. Seattle undertook its integra
tion 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 encour
age 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.

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Both districts sought greater racial integration for educa
tional and democratic, as well as for remedial, reasons.
Both sought to achieve these objectives while preserving
their commitment to other educational goals, e. g., district
wide 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 stu
dent 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 constitu
tional amendment, state statute, local ordinance, or local ad
ministrative policy explicitly requiring separation of the
races.” Ante, at 752, 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 720 (opinion
of the Court) (“[T]he Seattle public schools have not shown

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that they were ever segregated by law” (emphasis added)),
with ante, at 737 (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 seg
regated by law voluntarily desegregated their schools with
out a court order—just as Seattle did. See, e. g., Coleman,
Desegregation of the Public Schools in Kentucky—The Sec
ond Year After the Supreme Court’s Decision, 25 J. Negro
Educ. 254, 256, 261 (1956) (40 of Kentucky’s 180 school dis
tricts began desegregation without court orders); Branton,
Little Rock Revisited: Desegregation to Resegregation, 52 J.
Negro Educ. 250, 251 (1983) (similar in Arkansas); Bullock &
Rodgers, Coercion to Compliance: Southern School Districts
and School 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. Ken
nedy, President (Jan. 24, 1963) (hereinafter Kennedy Report),
online 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 commu
nity 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 con
trary view? But see ante, at 720–721, 725, n. 12.

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Are courts really to treat as merely de facto segregated
those school districts that avoided a federal order by volun
tarily complying with Brown’s requirements? See ante, at
720 (opinion of the Court), ante, at 736 (plurality opinion).
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 em
phatically 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 737.
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 vol
untary student and parent action—where they will find that
their own good faith, their knowledge, and their understand
ing 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 opportu
nity 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).

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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 lim
ited 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 com
pel 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 excep
tional 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 constitu
tional law—a principle of law that has found “wide accept
ance 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

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in formulating school policy, and . . . as a matter of educa
tional 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 Rehn
quist 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 Consti
tution 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 chal
lenged 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 re
quired that each elementary school in the district maintain
20% to 40% enrollment of African-American students, corre
sponding to the racial composition of the district. See Bar
resi 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 segre
gated in law, not just in fact. The plurality’s claim that Se
attle was “never segregated by law” is simply not accurate.
Compare ante, at 737, with supra, at 807–810. The plurality
could validly claim that no court ever found that Seattle

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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 Mc-
Daniel, supra, 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 re
quired by federal statute to undertake race-conscious deseg
regation 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 dis
parities 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 rea
sonably feasible steps to desegregate, and they remain free
to adopt reassignment and busing plans to effectuate deseg
regation” (emphasis added)); School Comm. of Boston v.
Board of Education, 389 U. S. 572 (1968) (per curiam) (dis
missing for want of a federal question a challenge to a volun
tary statewide integration plan using express racial criteria).
Lower state and federal courts had considered the matter
settled and uncontroversial even before this Court decided

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Swann. Indeed, in 1968, the Illinois Supreme Court re
jected 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 ra
cial imbalance in the schools that it did not cause. How
ever, the question as to whether the constitution re
quires 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 to
ward reducing and eventually eliminating de facto
school segregation.
“State laws or administrative policies, directed toward
the reduction and eventual elimination of de facto segre
gation 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 de
signed to alleviate de facto segregation and racial imbal
ance in the schools are not constitutionally forbidden.”
Tometz v. Board of Ed., Waukegan School Dist. No. 61,
39 Ill. 2d 593, 597–598, 237 N. E. 2d 498, 501 (citing deci
sions from the high courts of Pennsylvania, Massachu
setts, New Jersey, California, New York, and Connecti
cut, and from the Courts of Appeals for the First,
Second, Fourth, and Sixth Circuits; citations omitted).
See also, e. g., Offermann 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); Pennsyl
vania Human Relations Comm’n v. Chester School Dist.,

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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).
I quote the Illinois Supreme Court at length to illustrate
the prevailing legal assumption at the time Swann was de
cided. In this respect, Swann was not a sharp or unex
pected 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 fed
eral courts explicitly relied upon Swann’s guidance for dec
ades 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 re
quirements in order to promote school integration.
School authorities are traditionally given broad discre
tionary powers to formulate and implement educational
policy and may properly decide to ensure to their stu
dents the value of an integrated school experience.”
Citizens for Better Ed. v. Goose Creek Consol. Inde
pendent School Dist., 719 S. W. 2d 350, 352–353 (citing
Swann and North Carolina Bd. of Ed.), appeal dism’d
for want of substantial federal question, 484 U. S. 804
(1987).
Similarly, in Zaslawsky v. Board 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.

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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 Cty. School Bd., 497 F. 2d 1002, 1004–1006
(CA5 1974); State ex rel. Citizens Against Mandatory Bus
sing v. Brooks, 80 Wash. 2d 121, 128–129, 492 P. 2d 536, 541–
542 (1972) (en banc), overruled on other grounds, Cole v. Web
ster, 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.,
No Child Left Behind Act of 2001, 20 U. S. C. § 6311(b)(2)
(C)(v) (2000 ed., Supp. IV); § 1067 et seq. (authorizing aid to
minority institutions). In fact, without being exhaustive,
I have counted 51 federal statutes that use racial classifi
cations. I have counted well over 100 state statutes that
similarly employ racial classifications. Presidential adminis
trations 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 Color Lines: Af
firmative Action, Immigration, and Civil Rights Options for
America 31 (J. Skrentny ed. 2001) (describing President Nix
on’s lobbying for affirmative action plans, e. g., the Philadel

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phia 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 af
firmative 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 ac
ceptance 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 (1873) (“[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
(1880) (“[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 un
derstood 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,

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p. 51 (1974) (describing the use of race-conscious remedies);
Harlan, Desegregation in New Orleans Public Schools Dur
ing Reconstruction, 67 Am. Hist. Rev. 663, 664 (1962) (same);
W. Vaughn, Schools for All: The Blacks & Public Education
in the South, 1865–1877, pp. 111–116 (1974) (same). Al
though 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. Pen˜ a, 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 Bd. of Ed., 476
U. S. 267, 274 (1986); Fullilove v. Klutznick, 448 U. S. 448,
507 (1980) (Powell, J., concurring). But I can find no case in
which this Court has followed Justice Thomas’ “color
blind” 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 mem
bers 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 judi
cial findings of de jure segregation. As McDaniel and Har
ris show, that is historically untrue. See supra, at 824–825.
Many school districts in the South adopted segregation rem
edies (to which Swann clearly applies) without any such fed
eral order, see supra, at 821. 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 ini
tially adopted when a compulsory district court order was in
place. And, in any event, the histories of Seattle and Louis
ville make clear that this distinction—between court-ordered
and voluntary desegregation—seeks a line that sensibly can
not be drawn.

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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 im
portant 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 re
sponse lies in its overly theoretical approach to case law, an
approach that emphasizes rigid distinctions between hold
ings 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 judi
cial 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 pro
vide, 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 v. California, 543
U. S. 499 (2005), Adarand, supra, and Grutter v. Bollinger,
539 U. S. 306 (2003)—supplanted Swann. See ante, at 720,
739, n. 16, 741–742 (citing Adarand, supra, at 227; John
son, supra, at 505; Grutter, supra, at 326). The plurality
says that cases such as Swann and the others I have de
scribed all “were decided before this Court definitively de

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termined that ‘all racial classifications . . . must be analyzed
by a reviewing court under strict scrutiny.’ ” Ante, at 739,
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 com
pelling governmental interests.” Ibid. And the Court re
peated 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 Four
teenth 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 Grut
ter that it was overturning Swann or its central constitu
tional 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 dif
ferent situations . . . into account.” Adarand, 515 U. S., 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. (internal quotation marks omitted). 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. And the Court, using the
very phrase that Justice Marshall had used to describe strict
scrutiny’s application to any exclusionary use of racial crite
ria, sought to “dispel the notion that strict scrutiny” is as
likely to condemn inclusive uses of “race-conscious” criteria

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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, 448 U. S., at 519 (Marshall, J., con
curring 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 govern
mental action under the Equal Protection Clause. See
Gomillion v. Lightfoot, 364 U. S. 339, 343–344 (1960) (ad
monishing that, ‘in dealing with claims under broad pro
visions of the Constitution, which derive content by an
interpretive process of inclusion and exclusion, it is im
perative 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 control
ling facts’). . . . Not every decision influenced by race is
equally objectionable, and strict scrutiny is designed to
provide a framework for carefully examining the impor
tance 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 scru
tiny 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
741–743. Today’s opinion reveals that the plurality would

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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 re
viewing 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 dif
fer 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 dis
tributing 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 con
texts, it would be surprising if the law required an identi
cally 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 sec
ondary 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 nor
mally distributed on the basis of merit and which are in short
supply. It is not one in which race-conscious limits stigma

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tize or exclude; the limits at issue do not pit the races against
each other or otherwise significantly exacerbate racial ten
sions. 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 com
pares the present circumstances with other cases where one
or more of these negative features are present. See, e. g.,
Strauder, 100 U. S. 303; Yick Wo, 118 U. S. 356; Brown, 347
U. S. 483; Loving v. Virginia, 388 U. S. 1 (1967); Bakke, 438
U. S. 265; 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, 515 U. S. 200; Grutter, supra;
Gratz, 539 U. S. 244; Johnson, 543 U. S. 499.
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. Com
pare 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 mag
net 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 popu
lar 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 Re
search, Evaluation and Assessment, Student Information

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Services Office, Seattle Public Schools, Data Profile: District
Summary December 2005 (hereinafter Data Profile: District
Summary December 2005), online at http://www.seattle
schools.org/area/siso/disprof/2005/DP05all.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 Cir
cuit judge in the Seattle case to apply a standard of constitu
tionality 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) (Parents Involved VII)
(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 scru
tiny” 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 Jus
tice Kennedy mention. See ante, at 757–759 (Thomas, J.,
concurring); ante, at 783–784, 797 (Kennedy, J., concurring
in part and concurring in judgment).
But unlike the plurality, such a judge would also be aware
that a legislature or school administrators, ultimately ac
countable to the electorate, could nonetheless properly con
clude that a racial classification sometimes serves a purpose
important enough to overcome the risks they mention, for

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example, helping to end racial isolation or to achieve a di
verse student body in public schools. Cf. ante, at 797–798
(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 alto
gether fitting. I believe that the law requires application
here of a standard of review that is not “strict” in the tradi
tional 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., dis
senting); Parents Involved VII, supra, at 1193–1194 (Kozin
ski, J., concurring). Apparently Justice Kennedy also
agrees that strict scrutiny would not apply in respect to cer
tain “race-conscious” school board policies. See ante, at 789
(“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 ap
proach might have on students of different races”).
Nonetheless, in light of Grutter and other precedents, see,
e. g., Bakke, supra, at 290 (opinion of Powell, J.), I shall adopt
the first alternative. I shall apply the version of strict scru
tiny 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.

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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. Some
times a court refers to it as an interest in achieving racial
“diversity.” Other times a court, like the plurality here, re
fers 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 mix
ture characterizes each of the district’s schools and each indi
vidual student’s public school experience.
Regardless of its name, however, the interest at stake pos
sesses three essential elements. First, there is a historical
and remedial element: an interest in setting right the conse
quences 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 con
tinuing 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 atti
tudes. It is an interest in maintaining hard-won gains.
And it has its roots in preventing what gradually may be
come the de facto resegregation of America’s public schools.
See Part I, supra, at 805–806; Appendix A, infra. See also
ante, at 797 (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 opportu
nity for all of its children”).

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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 inte
grated settings often show positive academic gains. See,
e. g., Powell, Living and Learning: Linking Housing and Edu
cation, 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 761–763
(Thomas, J., concurring). But the evidence supporting an
educational interest in racially integrated schools is well es
tablished and strong enough to permit a democratically
elected school board reasonably to determine that this inter
est 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 inte
grated 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 edu
cational benefits of desegregated schooling, found that the
studies have provided “remarkably consistent” results, show
ing that: (1) black students’ educational achievement is im
proved in integrated schools as compared to racially isolated
schools, (2) black students’ educational achievement is im

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proved 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 produc
ing 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 back
grounds. 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 300 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 Signifi
cance of Desegregation: School Racial Composition and Afri
can American Inclusion in American Society, 63 J. Negro
Educ. 394, 401–403 (1994) (hereinafter Dawkins & Braddock);
Wells & Crain, Perpetuation Theory and the Long-Term Ef
fects of School Desegregation, 64 Rev. Educ. Research 531,
550 (1994) (hereinafter Wells & Crain).
There are again studies that offer contrary conclusions.
See, e. g., Schofield, School Desegregation and Intergroup
Relations: A Review of the Literature, in 17 Review of Re
search in Education 335, 356 (G. Grant ed. 1991). See also
ante, at 768–770 (Thomas, J., concurring). Again, however,

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the evidence supporting a democratic interest in racially in
tegrated 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 con
tact in desegregated schools leads to an increase in inter
racial 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 desegre
gated companies after graduation than students who at
tended racially isolated schools. Dawkins & Braddock 401–
403; Wells & Crain 550. Further research has shown that
the desegregation of schools can help bring adult communi
ties together by reducing segregated housing. Cities that
have implemented successful school desegregation plans
have witnessed increased interracial contact and neighbor
hoods that tend to become less racially segregated. Daw
kins & 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 inter
ests were, constitutionally speaking, “compelling.” See 539
U. S., at 330 (recognizing that Michigan Law School’s race
conscious admissions policy “promotes cross-racial under
standing, 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 increas
ingly global marketplace can only be developed through ex

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posure to widely diverse people, cultures, ideas, and view
points” (internal quotation marks omitted; alteration in
original)).
In light of this Court’s conclusions in Grutter, the “compel
ling” 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 Na
tion’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 to
gether, 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 Re
gents for Higher Ed., 339 U. S. 637 (1950), focusing on gradu
ate 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”); J. Patterson, Brown v.
Board of Education, p. 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 In
tent 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, O. T. 1952, No. 8 etc.; Dudziak, Brown as
a Cold War Case, 91 J. Am. Hist. 32 (2004); A Great Decision,
Hindustan Times (New Delhi, 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

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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 dis
trict may consider it a compelling interest to achieve a di
verse student population,” including a racially diverse popu
lation. Ante, at 797–798.
The compelling interest at issue here, then, includes an
effort to eradicate the remnants, not of general “societal dis
crimination,” ante, at 731 (plurality opinion), but of primary
and secondary school segregation, see supra, at 808–809,
813–814; 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 in
terest that combines these three elements is not “compel
ling,” what is?
The majority acknowledges that in prior cases this Court
has recognized at least two interests as compelling: an inter
est in “remedying the effects of past intentional discrimina
tion,” and an interest in “diversity in higher education.”
Ante, at 720, 722. 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 de
scribed in his letter to the President? Supra, at 821.
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 com
pelling 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 seg
regation (“racial imbalance caused by other factors”). Ante,

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at 736. 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 “af
firmative 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,
supra, 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 reme
dial measures a school district may be constitutionally re
quired 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, Craw
ford, 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 737, that remedial in
terests 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 com
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history. And stubborn facts of history linger and persist.”
503 U. S., at 495. See also ante, at 795 (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 wis
dom 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 761–763, 768–769 (concur
ring opinion). He is entitled of course to his own opinion as
to which studies he finds convincing—although it bears men
tion that even the author of some of Justice Thomas’ pre
ferred studies has found some evidence linking integrated
learning environments to increased academic achievement.
Compare ante, at 761–763 (opinion of Thomas, J.) (citing
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. Therns
trom & S. Thernstrom eds. 2002); Brief for David J. Armor
et al. as Amici Curiae 29), with Rosen, Perhaps Not All Af
firmative Action is Created Equal, N. Y. Times, June 11,
2006, section 4, p. 14 (quoting David Armor as commenting,
“ ‘we did not find the [racial] achievement gap changing sig
nificantly’ ” but acknowledging that he “ ‘did find a modest
association for math but not reading in terms of racial com
position 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 Constitu
tion allows democratically elected school boards to make up
their own minds as to how best to include people of all races
in one America.

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B
Narrow Tailoring
I next ask whether the plans before us are “narrowly tai
lored” to achieve these “compelling” objectives. I shall not
accept the school boards’ 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,” Grut
ter, 539 U. S., at 388 (Kennedy, J., dissenting). Several fac
tors, 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 (expressing
concern about “narrow fluctuation band[s]”). They consti
tute 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 (opinion of the Court)
(“Properly understood, a ‘quota’ is a program in which a cer
tain fixed number or proportion of opportunities are ‘re
served exclusively for certain minority groups’ ” (quoting
Croson, 488 U. S., at 496 (plurality opinion))).
In fact, the defining feature of both plans is greater empha
sis 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 pre
ferred district high school (without any consideration of
race-conscious criteria). Choice, therefore, is the “predomi
nant factor” in these plans. Race is not. See Grutter,
supra, at 393 (Kennedy, J., dissenting) (allowing consider
ation 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

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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 pop
ulation. See, e. g., North Carolina Bd. of Ed. v. Swann,
402 U. S., at 46 (no “absolute prohibition against [the] use”
of mathematical ratios as a “starting point”); Swann v.
Charlotte-Mecklenburg Bd. of Ed., 402 U. S., at 24–25 (ap
proving 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 tai
lored, see Grutter, supra, at 341, than other race-conscious
restrictions this Court has previously approved. See, e. g.,
Swann, supra, at 26–27; Montgomery County Bd. of Ed.,
supra, at 232. Indeed, the plans before us are more nar
rowly tailored than the race-conscious admission plans that
this Court approved in Grutter. Here, race becomes a fac
tor only in a fraction of students’ non-merit-based assign
ments—not in large numbers of students’ merit-based appli
cations. 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

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State’s flagship graduate program; they simply attend a dif
ferent one of the district’s many public schools, which in aspi
ration and in fact are substantially equal. Cf. Wygant, 476
U. S., at 283 (plurality opinion). And, in Seattle, the disad
vantaged 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 dis
tricts 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 com
munity 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 experi
mentation 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 boards’
“compelling” objectives. The history of each school system
reveals highly segregated schools, followed by remedial
plans that involved forced busing, followed by efforts to at
tract or retain students through the use of plans that aban
doned 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 bound
aries, new school building construction, and unrestricted vol
untary 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 807–819.
Moreover, giving some degree of weight to a local school
board’s knowledge, expertise, and concerns in these particu
lar matters is not inconsistent with rigorous judicial scrutiny.
It simply recognizes that judges are not well suited to act

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as school administrators. Indeed, in the context of school
desegregation, this Court has repeatedly stressed the impor
tance of acknowledging that local school boards better under
stand 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 741–742 (“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 commu
nity concern and support for public schools and to quality of
the educational process”). See also San Antonio Independ
ent School Dist. v. Rodriguez, 411 U. S. 1, 49–50 (1973) (extol
ling local control for “the opportunity it offers for participa
tion 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. Arkan
sas, 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, pub
lic 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) (“Full implementation of these con
stitutional principles may require solution of varied local
school problems. School authorities have the primary re
sponsibility 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 ex
perience 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

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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 explic
itly 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 Court notes, ante,
at 733–734, Seattle school officials concentrated on diminish
ing the racial component of their districts’ plan, but did not
pursue eliminating that element entirely. For the Court
now to insist as it does, ante, at 735, that these school dis
tricts 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 nu
merical 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

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726–728. 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 De
ferred: 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 independ
ently to validate the use of ratios that this Court has repeat
edly 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 de
sired aims (e. g., avoiding forced busing, countering white
flight, maintaining racial diversity) by other means. Noth
ing in the extensive history of desegregation efforts over the

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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, in
cluding strategic site selection of new schools; drawing
attendance zones with general recognition of the demo
graphics of neighborhoods; allocating resources for spe
cial programs; recruiting students and faculty in a tar
geted fashion; and tracking enrollments, performance,
and other statistics by race.” Ante, at 789.
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
School Histories, 1862–2000 (2002). As to “drawing” neigh
borhood “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 814–816. As to “allocating re
sources for special programs,” Seattle and Louisville have
both experimented with this; indeed, these programs are
often referred to as “magnet schools,” but the limited deseg
regation effect of these efforts extends at most to those few
schools to which additional resources are granted. In addi
tion, 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 fac
ulty” on the basis of race, both cities have tried, but only as
one part of a broader program. As to “tracking enroll
ments, performance, and other statistics by race,” tracking
reveals the problem; it does not cure it.

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Justice Kennedy sets forth two additional concerns re
lated to “narrow tailoring.” In respect to Louisville, he
says first that officials stated (1) that kindergarten assign
ments are not subject to the race-conscious guidelines, and
(2) that the child at issue here was denied permission to at
tend the kindergarten he wanted because of those guidelines.
Both, he explains, cannot be true. He adds that this con
fusion 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 pre
cise 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 785.
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
No. 05–915, p. 20. After he had enrolled and after the aca
demic year had begun, he then applied to transfer to his pre
ferred 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 con
cerns 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 ques
tions 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 mi
norities? Ante, at 786–787. The majority suggests that Se
attle’s classification system could permit a school to be la
beled “diverse” with a 50% Asian-American and 50% white
student body, and no African-American students, Hispanic

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students, or students of other ethnicity. Ante, at 787 (opin
ion of Kennedy, J.); ante, at 723–724 (opinion of the Court).
The 50/50 hypothetical has no support in the record here;
it is conjured from the imagination. In fact, Seattle appar
ently began to treat these different minority groups alike in
response to the federal Emergency School Aid Act’s require
ment that it do so. A. Siqueland, Without A Court Order:
The Desegregation of Seattle’s Schools 116–117 (1981) (here
inafter Siqueland). See also F. Hanawalt & R. Williams,
The History of Desegregation in Seattle Public Schools,
1954–1981, p. 31 (1981) (hereinafter Hanawalt); Pub. L. 95–
561, Title VI, 92 Stat. 2252 (prescribing percentage enroll
ment requirements for “minority” students); Siqueland 55
(discussing Department of Health, Education, and Welfare’s
definition of “minority”). Moreover, maintaining this feder
ally mandated system of classification makes sense insofar
as Seattle’s experience indicates that the relevant circum
stances 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 draw
ing 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 in
clusion of multiple minority groups in an otherwise lawful
government minority-assistance program? If so, its inter
pretation 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

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“ ‘the context of higher education.’ ” Ante, at 725. 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 841–843. And I have explained
how the plans before us are more narrowly tailored than
those in Grutter. See supra, at 847–848. I add that one
cannot find a relevant distinction in the fact that these school
districts did not examine the merits of applications “individ
ual[ly].” See ante, at 722–723. 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 place
ment. These are not affirmative action plans, and hence “in
dividualized 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 devel
oped and modified their approach, (4) the comparison with
prior plans, and (5) the lack of reasonably evident alterna
tives—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 con
sists 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

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it a positive, desirable policy and an essential element of any
well-rounded public school education.” Hampton v. Jeffer
son Cty. Bd. of Ed., 102 F. Supp. 2d 358, 370 (WD Ky. 2000)
(Hampton II). 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 repre
sented 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 dis
solved 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 desegrega
tion 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 mainte
nance of a desegregated system as a compelling state inter
est”). 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 im
plementation of Seattle’s desegregation plan and “burden[ed]
all future attempts to integrate Washington schools in dis
tricts throughout the State.” Id., at 462–463, 483. Because

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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 ad
dress 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 opin
ion 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 plural
istic society,” hopefully “teaching members of the racial ma
jority to live in harmony and mutual respect with children
of minority heritage.” Ibid. (internal quotation marks
omitted).
It is difficult to believe that the Court that held unconstitu
tional a referendum that would have interfered with the im
plementation 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 consti
tutionality 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

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constitutional standard that would hold unconstitutional
large numbers of race-conscious integration plans adopted by
numerous school boards over the past 50 years while remain
ing true to this Court’s desegregation precedent?
V
Consequences
The Founders meant the Constitution as a practical docu
ment that would transmit its basic values to future genera
tions 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 Con
stitution’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 813–814. 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 desegrega
tion methods that have evolved over time in light of experi
ence. 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 im
mediately 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

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million students in 853 schools. The sample includes
districts in urban areas of all sizes, suburbs (e. g., Arling
ton 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 con
solidated districts (New Castle County, Delaware and
Jefferson County, Kentucky).
“The districts also vary in their racial compositions
and levels of segregation. Initial plans were imple
mented in Mobile, Alabama and Mecklenburg County,
North Carolina, and in a number of other southern dis
tricts 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 stu
dents 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 (footnote omitted).
A majority of these desegregation techniques explicitly con
sidered 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 Rich
mond, 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
one hundred twenty-five studied districts used transfers as
a component of their plans. Id., at 83–91.

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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 in
creased racial integration. Eleven other States require
local boards to deny transfers that are not in compliance
with the local school board’s desegregation plans. See Edu
cation Commission of the States, StateNotes, Open Enroll
ment: 50-State Report (2007), online at http://mb2.ecs.org/
reports/Report.aspx?id=268.
Arkansas, for example, provides by statute that “[n]o stu
dent may transfer to a nonresident district where the per
centage of enrollment for the student’s race exceeds that per
centage in the student’s resident district.” Ark. Code Ann.
§ 6–18–206(f)(1), as amended, 2007 Ark. Gen. Acts no. 552.
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 dis
trict 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 pro
gram 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 popula
tion 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” determi
nation requires the district to submit a plan to correct the

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racial imbalance, which plan may include “mandatory pupil
reassignment.” §§ 10–226e–5(a) and (c)(4).
Interpreting that State’s Constitution, the Connecticut Su
preme Court has held legally inadequate the reliance by a
local school district solely upon some of the techniques Jus
tice Kennedy today recommends (e. g., reallocating re
sources, 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 se
vere 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 fed
eral statutes and regulations use racial classifications for
educational or other purposes. See supra, at 828–829. In
many such instances, the contentious force of legal chal
lenges to these classifications, meritorious or not, would dis
place earlier calm.
The wide variety of different integration plans that school
districts use throughout the Nation suggests that the prob
lem of racial segregation in schools, including de facto segre
gation, 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 dis
trict’s use of such criteria often unlawful (and the plurality’s
“colorblind” view would make such use always unlawful) sug
gests that today’s opinion will require setting aside the laws
of several States and many local communities.
As I have pointed out, supra, at 805–806, de facto resegre
gation is on the rise. See Appendix A, infra. It is reason

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able to conclude that such resegregation can create serious
educational, social, and civic problems. See supra, at 839–
845. Given the conditions in which school boards work to
set policy, see supra, at 822, 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 plural
ity, or at least those who follow Justice Thomas’ “ ‘color
blind’ ” approach, see ante, at 772–773 (concurring opinion);
Grutter, 539 U. S., at 353–354 (Thomas, J., concurring in part
and dissenting in part), may feel confident that, to end invidi
ous discrimination, one must end all governmental use of
race-conscious criteria including those with inclusive objec
tives. See ante, at 747–748 (plurality opinion); see also ante,
at 772–773 (Thomas, J., concurring). By way of contrast,
I do not claim to know how best to stop harmful discrimina
tion; 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 dem
ocratic 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 748. See also
Parents Involved VII, 426 F. 3d, at 1222 (Bea, J., dissenting)
(“The way to end racial discrimination is to stop discriminat
ing by race”). That is why the Equal Protection Clause out

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laws invidious discrimination, but does not similarly forbid
all use of race-conscious criteria.
Until today, this Court understood the Constitution as af
fording the people, acting through their elected representa
tives, freedom to select the use of “race-conscious” criteria
from among their available options. See Adarand, 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, how
ever, the Court restricts (and some Members would elimi
nate) 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 excep
tional 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 con
stitutional 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 ac
count 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 735.
Four basic considerations have led me to this view. First,
the histories of Louisville and Seattle reveal complex circum

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stances 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 em
phasize 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 tradi
tion. And their history reveals school district goals whose
remedial, educational, and democratic elements are inextri
cably intertwined each with the others. See Part I, supra,
at 804–823.
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 segre
gated schools. The Equal Protection Clause, ratified fol
lowing 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 to
gether people of all races. From Swann to Grutter, this
Court’s decisions have emphasized this distinction, recogniz
ing 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 Sumner, Equality Before
the Law: Unconstitutionality of Separate Colored Schools in
Massachusetts (Dec. 4, 1849), in 2 The Works of Charles Sum
ner 327, 371 (1870) (“The law contemplates not only that all
shall be taught, but that all shall be taught together”). See
Part II, supra, at 823–837.

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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 diver
sity 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 797–798 (opinion of Kennedy, J.).
These interests combine remedial, educational, and demo
cratic objectives. For the reasons discussed above, how
ever, 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
838–858.
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 ra
cially diverse schools. See Part V, supra, at 858–863.
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

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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 impor
tance, 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 Mc-
Daniel? To Crawford? To Harris? To School Commit
tee of Boston? To Seattle School Dist. No. 1? After dec
ades 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 reseg
regation) 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 accommodat
ing different good-faith visions of our country and our Con
stitution, today’s holding upsets settled expectations, creates
legal uncertainty, and threatens to produce considerable fur
ther 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 segrega
tion, and Justice Thomas likens the approach that I have
taken to that of segregation’s defenders. See ante, at 746–

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748 (plurality opinion) (comparing Jim Crow segregation to
Seattle and Louisville’s integration polices); ante, at 773–782
(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 747
(plurality opinion); they perpetuated a caste system rooted
in the institutions of slavery and 80 years of legalized subor
dination. The lesson of history, see ante, at 746–748 (same),
is not that efforts to continue racial segregation are constitu
tionally indistinguishable from efforts to achieve racial inte
gration. Indeed, it is a cruel distortion of history to com
pare 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 circum
stances 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 797 (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 result
ing 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 na
ture of a democracy that must work for all Americans. It

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sought one law, one Nation, one people, not simply as a mat
ter 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 Gover
nor 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 Air
borne 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 dramati
cally. Many parents, white and black alike, want their chil
dren to attend schools with children of different races. In
deed, 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 mod
est 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.

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Appendix A to opinion of Breyer, J.
APPENDIXES
A
Resegregation Trends
Percentage of Black Students in 90–100 Percent Non
white 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).

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Appendix A to opinion of Breyer, J.
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 72 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 (Jan. 2006) (Table 8),
online at http://www.civilrightsproject.harvard.edu/research/
deseg/Racial_Transformation.pdf.

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Percentage of White Students in Schools Attended by the
Average Black Student, 1968–2000
Source: Modified from E. Frankenberg, C. Lee, & G. Orfield,
A Multiracial Society with Segregated Schools: Are We Los
ing the Dream?, p. 30, fig. 5 (Jan. 2003), online at http://www.
civilrightsproject.harvard.edu/research/reseg03/AreWeLosing
theDream.pdf (using U. S. Dept. of Education and National
Center for Education Statistics Common Core of Data).

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Appendix A to opinion of Breyer, J.
Percentage of Students in Minority Schools by Race,
2000–2001
Source: Id., at 28, fig. 4.

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Appendix B to opinion of Breyer, J.
B
Sources for Parts I–A and I–B
Part I–A: Seattle
Section 1. Segregation, 1945 to 1956
¶ 1 C. Schmid & W. McVey, Growth and Distribution of Mi
nority Races in Seattle, Washington, 3, 7–9 (1964); Hanawalt
1–7; Taylor, The Civil Rights Movement in the American
West: Black Protest in Seattle, 1960–1970, 80 J. Negro Hist.
1, 2–3 (1995); Siqueland 10; D. Pieroth, Desegregating the
Public Schools, Seattle, Washington, 1954–1968, p. 6 (Disser
tation Draft 1979).
Section 2. Preliminary Challenges, 1956 to 1969
¶ 1 Id., at 32, 41; Hanawalt 4.
¶ 2 Id., at 11–13.
¶ 3 Id., at 5, 13, 27.
Section 3. The NAACP’s First Legal Challenge and Seat
tle’s Response, 1966 to 1977
¶ 1 Complaint in Adams v. Bottomly, Civ. No. 6704 (WD
Wash., Mar. 18, 1966), 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 Desegre
gate Fifth, Sixth, Seventh, and Eighth Grade Pupils in the
Garfield, Lincoln, and Roosevelt High School Districts by
September, 1971, pp. 6, 11 (Nov. 12, 1970) (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)

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Appendix B to opinion of Breyer, J.
(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, Pro
posed Alternative Desegregation Plans: Options for Elimi
nating Racial Imbalance by the 1979-80 School Year (1977)
(filed with the Court 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; Motion to Dismiss or Affirm in Seattle
School Dist. No. 1, O. T. 1981, No. 81–9.
¶ 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, at 5–7; Parents Involved VII, 426 F. 3d, at
1169–1170.
¶ 2 App. in No. 05–908, at 39a–42a; Data Profile: Dis
trict Summary December 2005; Brief for Respondents 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

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Year (Apr. 2005), online at http://www.seattleschools.org/area /
facilities-plan / Choice / 0506AppsChoicesBoardApril2005final.
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 (WD Wash. 2001); Parents Involved
VII, supra.
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 Id., 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, reinstated with modi
fications, 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).
¶ 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.
¶ 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, Super
intendent, to the Board of Education, Jefferson County Pub
lic School District, pp. 1, 3, 5 (Apr. 4, 1984); Memorandum
from Donald W. Ingwerson, Superintendent, to the Board of
Education, Jefferson County Public School District, pp. 4–5
(Dec. 19, 1991) (1991 Memorandum).

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Appendix B to opinion of Breyer, J.
Section 3. Student Choice and Project Renaissance, 1991
to 1996
¶ 1 Id., at 1–4, 7–11 (Stipulated Exh. 72); Brief for Respond
ents 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. Daesch
ner, Superintendent, to the Board of Education, Jefferson
County Public School District, p. 2 (Aug. 6, 1996) (1996
Memorandum).
Section 4. The Current Plan: Project Renaissance Modi
fied, 1996 to 2003
¶ 1 Id., at 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 II, 102 F. Supp. 2d, at 359, 363, 370, 377.
¶ 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 (CA6 2005) (per curiam); Mem
orandum from Stephen W. Daeschner, Superintendent, to the
Board of Education, Jefferson County Public School District,
pp. 3–4 (Apr. 2, 2001).