Seattle and Louisville

California Law Review

Volumn 95, Issue 1, 2007, Pages 277-317

  Liu, Goodwin ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 33947660958     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (236)

1. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 426 F.3d 1162 (9th Cir. 2005) (en banc), cert. granted, 126 S. Ct. 2351 (2006); McFarland v. Jefferson County Pub. Sch., 330 F. Supp. 2d 834 (W.D. Ky. 2004), aff'd per curiam, 416 F.3d 513 (6th Cir. 2005), cert. granted sub nom. Meredith v. Jefferson County Bd. of Educ, 126 S. Ct. 2351 (2006). I sometimes refer to these cases as Seattle and Louisville. A third recent case presented similar issues, but the Court declined review. See Comfort v. Lynn Sch. Comm., 418 F.3d 1 (1st Cir. 2005) (en banc), cert. denied, 126 S. Ct. 798 (2005). In all three cases, the district courts and courts of appeals upheld the race-conscious school assignment plans.
2. Brown v. Bd. of Educ, 347 U.S. 483 (1954).
3. See GARY ORFIELD & CHUNGMEI LEE, RACIAL TRANSFORMATION AND THE CHANGING NATURE OF SEGREGATION 8 tb1.1, 13 fig.1 (2006).
4. See id. at 8 (2003-04 data).
5. See id. at 9 tb1.2 (2003-04 data).
6. The high point of black-white integration occurred in 1988, when 44% of blacks in the South attended majority-white schools. See ERICA FRANKENBERG ET AL., A MULTIRACIAL SOCIETY WITH SEGREGATED SCHOOLS: ARE WE LOSING THE DREAM? 38 fig. 10 (South), 39 fig.11 (all regions) (2003).
7. See ORFIELD & LEE, supra note 3, at 9 tb1.2 (2003-04 data).
8. FRANKENBERG ET AL., supra note 6, at 42.
9. See ORFIELD & LEE, supra note 3, at 10 tbl.3, 11 tbl.4 (2003-04 data). Asians appear to be the least segregated group in public schools. The average Asian student attends a school that is 45% white, 12% black, 20% Latino, and 22% Asian. See id. at 9 tbl.2. Moreover, Asians are the group most likely to attend multiracial schools where each of at least three racial groups has 10% enrollment. See id. at 15-16.
10. See Sean F. Reardon et al., The Changing Structure of School Segregation: Measurement and Evidence of Multiracial Metropolitan-Area School Segregation, 1989-1995, 37 DEMOGRAPHY 351, 358 & tbl.3 (2000) (finding that 80% of racial segregation measured in 217 metropolitan areas "was due to segregation between whites and members of other groups" while segregation among black, Hispanic, and Asian students accounted for 20% of total segregation). Although a significant amount of racial segregation occurs across district lines, one-third of total school segregation is attributable to within-district segregation, the biggest component of which is white/non-white segregation in central-city school districts such as Louisville and Seattle. See id. at 358.
11. See infra Part II.D. The short summaries of the plans in this paragraph and the next are based on descriptions by the lower courts and by the school districts. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 426 F.3d 1162, 1169-71 (9th Cir. 2005); McFarland v. Jefferson County Pub. Sch., 330 F. Supp. 2d 834, 841-45 (W.D. Ky. 2004); Brief for Respondents at 1-11, Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, No. 05-908 (U.S. Oct. 10, 2006) [hereinafter Seattle Brief for Respondents]; Brief for Respondents at 1-9, Meredith v. Jefferson County Bd. of Educ., No. 05-915 (U.S. Oct. 10, 2006) [hereinafter Meredith Brief for Respondents].
12. Comfort v. Lynn Sch. Comm., 418 F.3d 1, 27 (1st Cir. 2005) (en banc), cert. denied, 126 S. Ct. 798 (2005) (Boudin, C.J., concurring); see Seattle, 426 F.3d at 1195 (Kozinski, J., concurring in the judgment) ("[T]he case at hand differs in material respects from those the Supreme Court has previously decided").
13. See Grutter v. Bollinger, 539 U.S. 306 (2003) (upholding use of race as one of many factors to achieve educational diversity in an admissions policy affording holistic, individualized consideration to each applicant); Gratz v. Bollinger, 539 U.S. 244 (2003) (invalidating point system that effectively assured the admission of every qualified minority applicant). Although Justice Kennedy dissented in Grutter, he made clear his "approval of giving appropriate consideration to race in this one context" according to the framework established by Justice Powell in Bakke. Grutter, 539 U.S. at 395 (Kennedy, J., dissenting); see id. at 387 ("The opinion by Justice Powell, in my view, states the correct rule for resolving this case." (citing Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 289-91, 315-18 (1978) (opinion of Powell, J.))); id. at 392-93 ("There is no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity, but an educational institution must ensure, through sufficient procedures, that each applicant receives individual consideration and that race does not become a predominant factor in the admissions decisionmaking."). In Seattle and Louisville, one could imagine Justice Kennedy proposing a careful framework to guide race-conscious school assignment, much as Justice Powell did for affirmative action in university admissions.
14. See Shaw v. Reno, 509 U.S. 630, 642 (1993) ("No inquiry into legislative purpose is necessary when the racial classification appears on the face of the statute. Express racial classifications are immediately suspect . . . ." (citations omitted)); accord Miller v. Johnson, 515 U.S. 900, 913 (1995); Adarand Constructors v. Peña, 515 U.S. 200, 227 (1995).
15. See Missouri v. Jenkins, 515 U.S. 70, 102 (1995); Freeman v. Pitts, 503 U.S. 467, 490 (1992); Milliken v. Bradley, 418 U.S. 717, 741-42 (1974); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 49-50, 58-59 (1973). Elsewhere I have argued that the Court's deference to local control in these cases undermined constitutional rights. See Goodwin Liu, Brown, Bollinger, and Beyond, 47 How. L.J. 705, 721-31 (2004).
16. See Transcript of Oral Argument of John W. Davis on behalf of Appellees, Brown v. Bd. of Educ., 347 U.S. 483 (1954) (No. 101), in 49 LANDMARK BRIEFS AND ARGUMENTS OF THE SUPREME COURT OF THE UNITED STATES: CONSTITUTIONAL LAW 329, 339 (Philip B. Kurland & Gerhard Casper eds., 1997) ("What underlies this whole question? What is the great national and federal policy on this matter? Is it not a fact that the very strength and fiber of our federal system is local self-government in those matters for which local action is competent? Is it not, of all the activities of government, the one which most nearly approaches the hearts and minds of people, the question of the education of their young? Is it not the height of wisdom that the manner in which that shall be conducted should be left to those most immediately affected by it. . . ?").
17. See Sam Dillon, Law to Segregate Omaha Schools Divides Nebraska, N.Y. TIMES, Apr. 15, 2006, at A9 (reporting on newly enacted Nebraska statute "dividing the Omaha public schools into three racially identifiable districts, one largely black, one white and one mostly Hispanic," based in part on a state legislator's claim of "a desire by blacks to control a school district in which their children are a majority").
18. See Cmty. Sch. v. Seattle Sch. Dist. No. 1, 426 F.3d 1162, 1194 (9th Cir. 2005) (en banc), cert. granted, 126 S. Ct. 2351 (2006) (Kozinski, J., concurring in the result); cf. Bush v. Vera, 517 U.S. 952, 1010 (1996) (Stevens, J., dissenting, joined by Ginsburg & Breyer, JJ.) ("[W]hen the state action (i) has neither the intent nor effect of harming any particular group, (ii) is not designed to give effect to irrational prejudices held by its citizens but to break them down, and (iii) uses race as a classification because race is 'relevant' to the benign goal of the classification, we need not view the action with the typically fatal skepticism that we have used to strike down the most pernicious forms of state behavior." (citation omitted)).
19. See Adarand, 515 U.S. at 226-29; see also Metro Broad., Inc. v. FCC, 497 U.S. 547, 634-35 (1990) (Kennedy, J., dissenting); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (plurality opinion).
20. Adarand, 515 U.S. at 228; see Johnson v. California, 542 U.S. 499, 515 (2005).
21. For criticism of the doctrine, see, for example, Samuel Issacharoff & Pamela S. Karlan, Standing and Misunderstanding in Voting Rights Law, 111 HARV. L. REV. 2276 (1998);
22. A. Leon Higginbotham et al., Shaw v. Reno: A Mirage of Good Intentions with Devastating Racial Consequences, 62 FORDHAM L. REV. 1593 (1994);
23. T. Alexander Aleinikoff & Samuel Issacharoff, Race and Redisricting: Drawing Constitutional Lines After Shaw v. Reno, 92 MICH. L. REV. 588 (1993).
24. Grutter v. Bollinger, 539 U.S. 306, 395 (2003) (Kennedy, J., dissenting).
25. Georgia v. Ashcroft, 539 U.S. 461, 490 (2003) (citing Shaw v. Reno, 509 U.S. 630, 657 (1993)).
26. See LARRY CUBAN, HOW CAN I FIX IT? FINDING SOLUTIONS AND MANAGING DILEMMAS 12, 16 (2001).
27. I treat the question whether the local policies actually further the goals of interracial socialization and educational equity as part of the compelling interest inquiry, although I realize this question may also be treated as part of the narrow tailoring inquiry into "fit" between means and ends. My approach follows Croson, where the Court held, in its compelling interest analysis, that while remedying identified discrimination in Richmond's construction industry could support race-conscious affirmative action, the 30% minority set-aside in the local policy did not further that remedial goal. See 488 U.S. at 498-505. As other examples show, the Court has not been particularly rigid in distinguishing the substantive inquiries under the two prongs of strict scrutiny. Compare Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 274-76 (1986) (plurality opinion) (rejecting role model theory and remedying societal discrimination as compelling interests for affirmative action because they lack a "logical stopping point") with Grutter, 536 U.S. at 342 (requiring all racial classifications to have "a logical end point" as part of narrow tailoring).
28. See, e.g., Romer v. Evans, 517 U.S. 620, 634-35 (1996); Miller v. Johnson, 515 U.S. 900, 911-12 (1995); Palmore v. Sidoti, 466 U.S. 429, 433 (1984). Ensuring fair political participation by minority groups has long attracted constitutional concern not simply because a minority group by definition lacks majority power, but because "prejudice . . . tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities." United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (emphasis added). Moreover, mutual respect across racial lines is important not only to how whites relate to minority groups, but also to how minority groups relate to whites and to one another. In the voting rights context, for example, the Court has emphasized that '"minority voters are not immune from the obligation to pull, haul, and trade to find common political ground.'" Georgia v. Ashcroft, 539 U.S. 461, 481 (2003) (quoting Johnson v. DeGrandy, 512 U.S. 997, 1020 (1994)). Ashcroft held that § 5 of the Voting Rights Act is not violated when states, instead of concentrating minority voters into "safe" districts where they are likely to elect the candidate of their choice, spread minority voters over a greater number of districts on the theory that "'minority citizens are able to form coalitions with voters from other racial and ethnic groups.'" Id. (quoting DeGrandy, 512 U.S. at 1020).
29. Edmonson v. Leesville Concrete Co., 500 U.S. 614, 630-31 (1991).
30. McCollum v. Bd. of Educ., 333 U.S. 203, 216 (1948).
31. Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954).
32. Ambach v. Norwick, 441 U.S. 68, 77 (1979).
33. Plyler v. Doe, 457 U.S. 202, 221 (1982).
34. See Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 473 (1982) ("Attending an ethnically diverse school . . . prepar[es] minority children for citizenship in our pluralistic society, while, we may hope, teaching members of the racial majority to live in harmony and mutual respect with children of minority heritage.") (internal quotation marks and citations omitted); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16 (1971) (racially integrated schools "prepare students to live in a pluralistic society").
35. These costs are all too familiar to the federal and state courts. See, e.g., Johnson v. California, 543 U.S. 499, 502-03 (2005) (racial conflict in prisons); McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1107-11 (9th Cir. 2004) (racially hostile workplace for blacks); Kang v. U. Lim Am., Inc., 296 F.3d 810, 817 (9th Cir. 2002) (racially hostile workplace for Koreans); Choi v. Gaston, 220 F.3d 1010, 1012 (9th Cir. 2000) (racial profiling of Asians by law enforcement); Aguilar v. Avis Rent A Car Sys., 980 P.2d 846, 849-50 (1999) (racially hostile workplace for Latinos); People v. Durazo, 124 Cal. App. 4th 728, 735-38 (2004) (racial profiling of Latinos by law enforcement); see also K.A. DIXON ET AL., JOHN J. HELDRICH CTR. FOR WORKFORCE DEV., A WORKPLACE DIVIDED: HOW AMERICANS VIEW DISCRIMINATION AND RACE ON THE JOB 11, 29 (2002) (finding in national survey that 28% of blacks and 22% of Hispanics have experienced racial discrimination on the job);
36. Laura Beth Nielsen & Robert L. Nelson, Rights Realized? An Empirical Analysis of Employment Litigation as a Claiming System, 2005 WIS. L. REV. 663, 682-85 (collecting survey data on employment discrimination);
37. Kevin M. Clermont & Stewart J. Schwab, How Employment Discrimination Plaintiffs Fare in Federal Court, 1 J. EMPIRICAL LEGAL STUD. 429, 429 (2004) ("Employment discrimination cases constitute an increasing fraction of the federal civil docket, now reigning as the largest single category of cases at nearly 10 percent.").
38. Miller v. Johnson, 515 U.S. 900, 922 (1995); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 500 (1989).
39. For an overview, see Statement of American Social Scientists of Research on School Desegregation, Appendix to Brief of 553 Social Scientists as Amici Curiae in Support of Respondents at App. 3-11, Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, No. 05-908, and Meredith v. Jefferson County Bd. of Educ., No. 05-915 (U.S. Oct. 10, 2006) [hereinafter Social Science Statement].
40. See Marvin P. Dawkins & Jomills Henry Braddock II, The Continuing Significance of Desegregation: School Racial Composition and African American Inclusion in American Society, 63 J. NEGRO EDUC. 394 (1994);
41. Amy Stuart Wells & Robert L. Crain, Perpetuation Theory and the Long-Term Effects of School Desegregation, 64 REV. EDUC. RES. 531 (1994).
42. See William T. Trent, Outcomes of School Desegregation: Findings from Longitudinal Research, 66 J. NEGRO EDUC. 255, 256-57 (1997);
43. Marvin P. Dawkins et al., Why Desegregate? The Effect of School Desegregation on Adult Occupational Desegregation of African Americans, Whites, and Hispanics, 31 INT'L J. CONTEMP. SOC. 273, 279-80 (1994).
44. See 1 U.S. COMM'N ON CIVIL RIGHTS, RACIAL ISOLATION IN THE PUBLIC SCHOOLS 110-13 (1967); 2 id. at 211-41;
45. Michal Kurlaender & John T. Yun, Fifty Years After Brown: New Evidence of the Impact of School Racial Composition on Student Outcomes, 6 INT'L J. EDUC. POL'Y, RES. & PRAC. 51, 58, 62-63 (2005);
46. cf. Patricia Gurin et al., Diversity and Higher Education: Theory and Impact on Educational Outcomes, 72 HARV. EDUC. REV. 330, 353 (2002) (interracial contact in college is positively associated with citizenship engagement and racial/cultural engagement for Asian, black, Latino, and white students).
47. See DOUGLAS S. MASSEY ET AL., THE SOURCE OF THE RIVER: THE SOCIAL ORIGINS OF FRESHMEN AT AMERICA'S SELECTIVE COLLEGES AND UNIVERSITIES 171-74 (2003). Even prominent critics of school desegregation acknowledge that there is a significant relationship between attending a racially integrated school and living racially integrated lives as adults. See Brief of David Armor et al. as Amici Curiae in Support of Petitioners at 21-22, Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, No. 05-908, and Meredith v. Jefferson County Bd. of Educ., No. 05-915 (U.S. Aug. 21, 2006) [hereinafter Armor Brief]. Yet they contend that the relationship is plagued by self-selection. See id. at 22. To be sure, selection bias is a possible explanation for the observed relationships. But the possibility of selection bias does not mean that it actually explains the observed relationship. Without specific evidence that selection bias is at work (the Armor brief cites none), there is no reason why the consistent findings of long-term studies using multiple methodologies should be attributed to "family preference for integrated environments," see id., rather than to the impact of racially integrated schools on the habits and values that children carry into adulthood.
48. See CYNTHIA ESTLUND, WORKING TOGETHER: HOW WORKPLACE BONDS STRENGTHEN A DIVERSE DEMOCRACY 69-76, 105-24 (2003) (explaining that racially integrated workplaces are important sites of cooperation that promote trust, reciprocity, and communication across racial boundaries);
49. ROBERT D. PUTNAM, BOWLING ALONE: THE COLLAPSE AND REVIVAL OF AMERICAN COMMUNITY 22, 363 (2000) (observing that networks "encompass[ing] people across diverse social cleavages" build the social capital necessary "[to solve] our biggest collective problems");
50. 2 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 117 (Phillips Bradley ed., Knopf 1954) (1835) (highlighting the importance of voluntary associations as sites where "[f]eelings and opinions are recruited, the heart is enlarged, and the human mind is developed [through] the reciprocal influence of men upon one another").
51. See DOUGLAS S. MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS 60-82 (1993) (finding persistently high residential segregation among blacks despite improvements in black income from 1970 to 1980);
52. John R. Logan et al., Segregation of Minorities in the Metropolis: Two Decades of Change, 41 DEMOGRAPHY 1, 3, 6-11 (2004) (finding slow decline of black-white segregation from 1980 to 2000 despite improvement in black income during the 1990s);
53. Rima Wilkes & John Iceland, Hypersegregation in the Twenty-First Century, 41 DEMOGRAPHY 23, 29 (2004) (listing twenty-nine metropolitan areas with black-white hypersegregation in 2000 and observing that "[m]ost of the metropolitan areas that were hypersegregated in 2000 were also hypersegregated in 1990").
54. See Logan et al., supra note 41, at 7, 9, 11.
55. See id. at 8.
56. Shaw v. Reno, 509 U.S. 630, 657 (1993).
57. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 426 F.3d 1162, 1203 (9th Cir. 2005) (en banc) (Bea, J., dissenting).
58. The continuing salience of race as a social boundary has been demonstrated by psychological research on implicit bias and by powerful experimental evidence. See, e.g., Anthony G. Greenwald & Linda Hamilton Krieger, Implicit Bias: Scientific Foundations, 94 CALIF. L. REV. 945 (2006);
59. Marianne Bertrand & Sendhil Mullainathan, Are Emily and Greg More Employable Than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination, 94 AM. ECON. REV. 991 (2004);
60. Ian Ayers & Peter Siegelman, Race and Gender Discrimination in Negotiation for the Purchase of a New Car, 84 AM. ECON. REV. 304 (1995).
61. Georgia v. Ashcroft, 539 U.S. 461, 490 (2003) (citing Shaw v. Reno, 509 U.S. at 657).
62. See infra Part II.B.
63. McFarland v. Jefferson County Pub. Sch., 330 F. Supp. 2d 834, 840 n.6 (W.D. Ky. 2004).
64. Seattle, 426 F.3d at 1170.
65. McFarland, 330 F. Supp. 2d at 840 n.6.
66. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 377 F.3d 949, 1005 (9th Cir. 2004) (Graber, J., dissenting) (showing 2000-01 district enrollment by race), vacated en banc, 426 F.3d 1162 (9th Cir. 2005).
67. Seattle, 426 F.3d at 1204 (Bea, J., dissenting) (quoting Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 72 P.3d 151, 169 n.5 (2003) (Sanders, J., dissenting)) (internal quotation marks omitted).
68. Brief of Amicus Curiae Center for Individual Rights in Support of Petitioner at 8, Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, No. 05-908 (U.S. Aug. 21, 2006); see id. at 10 ("Indeed, the very notion of diversity - touted by the school district - suggests that discrete cultural and racial identities are more meaningful than the bare commonality of not being White.").
69. See supra note 10 and accompanying text.
70. See KATE DAVIS, HOUSING SEGREGATION IN SEATTLE 8-12, 19-32 (2005), http://www.seattle.gov/ civilrights/documents/housing_seg_in_seattle-2005.pdf;
71. SEATTLE HUMAN RIGHTS DEP'T, A STUDY AND DATA ON SEGREGATED HOUSING IN SEATTLE, WASHINGTON 4-10 (1976).
72. See Seattle, 377 F.3d at 1005 (Graber, J., dissenting).
73. I calculated these ratios using district enrollment data by race and region in Joint Appendix at 175a, Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, No. 05-908 (U.S. cert. granted June 5, 2006). The data show that in 2000-01 the northern half of the district had 2,879 Asian students, 1,778 blacks, 1,693 Latinos, and 12,571 whites, while the south had 8,269 Asians, 9,054 blacks, 3,145 Latinos, and 6,247 whites. Districtwide, there were 11,148 Asians, 10,832 blacks, 4,838 Latinos, and 18,818 whites. Thus, the Asian/black ratio districtwide is equal to 11,148 divided by 10,832, or 1.03; in the north, it is 2,879 divided by 1,778, or 1.62; and in the south, it is 8,269 divided by 9,054, or 0.91.
74. DAVIS, supra note 56, at 25, 32.
75. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 507 (1989); see Brief of Amicus Curiae Center for Individual Rights, supra note 54, at 12-15 (making this argument).
76. See Grutter v. Bollinger, 539 U.S. 306, 319 (2003) ("[C]ritical mass means numbers such that underrepresented minority students do not feel isolated or like spokespersons for their race"); id. at 319-20 ("[W]hen a critical mass of underrepresented minority students is present, racial stereotypes lose their force because nonminority students learn there is no '"minority viewpoint"' but rather a variety of viewpoints among minority students" (quoting law school dean)).
77. The empirical literature on this point is immense. For a summary, see Social Science Statement, supra note 35, at App. 28-40. For a compelling narrative account of the continuing relationship between racial segregation and educational inequality, see JONATHAN KOZOL, THE SHAME OF THE NATION: THE RESTORATION OF APARTHEID SCHOOLING IN AMERICA (2005).
78. See JEANNIE OAKES ET AL., UCLA INST. FOR DEMOCRACY, EDUC., & ACCESS, SEPARATE AND UNEQUAL 50 YEARS AFTER BROWN: CALIFORNIA'S RACIAL "OPPORTUNITY GAP" 5-6 (2004). Racially isolated schools are less likely to have physical and social environments conducive to learning. In 2004-05, 27% of California high schools with over 90% minority enrollment were "critically overcrowded" (i.e., they had twice as many students per acre as the state recommends) compared to just 1% of majority-white high schools.
79. See JOHN ROGERS ET AL., CALIFORNIA EDUCATIONAL OPPORTUNITY REPORT 2006: ROADBLOCKS TO COLLEGE 9, 17 (2006). California "schools with more Black or Latino students have more facilities-related problems such as uncomfortable classroom temperatures; unclean bathrooms; and evidence of cockroaches, rats, or mice."
80. Susanna Loeb et al., How Teaching Conditions Predict Teacher Turnover in California Schools, 80(3) PEABODY J. EDUC. 44, 58 (2005). In addition, black and Latino students in more racially diverse California middle schools report less peer victimization and greater safety.
81. See Jaana Juvonen et al., Ethnic Diversity and Perceptions of Safety in Urban Middle Schools, 17 PSYCHOL. SCI. 393 (2006). Similarly, black and Latino college freshmen from racially integrated high schools report much less violence, drug use, and disorder in their high schools than their peers who attended segregated schools. See MASSEY ET AL., supra note 39, at 95 tbl.5.5.
82. See ROGERS ET AL., supra note 63, at 9.
83. See Robert Teranishi et al., Opportunity at the Crossroads: Racial Inequality, School Segregation, and Higher Education in California, 106 TEACHERS C. REC. 2224, 2234 tbl.3 (2004). Among Latino high school graduates in 2000, only 0.5% who attended majority-Latino schools and 1.2% in majority-black schools had completed UC-required coursework and taken the SAT, compared to 4.5% of Latino graduates in majority-white schools and 13.4% of Latinos in majority-Asian schools. See id. Among black high school graduates, 0.6% in majority-black schools and 1.5% in majority-Latino schools had completed UC-required coursework and taken the SAT, compared to 3.7% in majority-white schools and 17.8% in majority-Asian schools. See id.;
84. see also Isaac Martin et al., High School Segregation and Access to the University of California, 19 EDUC. POL'Y 308, 318, 319 tbl.3 (2005) (finding negative association between black and especially Latino high school enrollment and percentage of high school graduates admitted to UC).
85. See ROBERT TERANISHI & TARA PARKER, SOCIAL REPRODUCTION OF INEQUALITY: THE COMPOSITION OF FEEDER SCHOOLS TO THE UNIVERSITY OF CALIFORNIA 12-13 (Aug. 2006), http://www.law.berkeley.edu/centers/ewi/research/TeranishiParker2006_AERJ_v2. pdf.
86. See Isaac Martin et al., Unequal Opportunity: Student Access to the University of California, in UNIV. OF CAL. INST. FOR LABOR AND EMPLOYMENT, THE STATE OF CALIFORNIA LABOR, 2003, at 119, 145 (2003). The racial compositions of these top 25 schools are available from the California Department of Education's DataQuest website, http://data1.cde.ca.gov/dataquest/. Racially integrated high schools also supply a substantial share of the black and Latino students who attend elite colleges nationally. A study of fall 1999 freshmen in twenty-eight of the nation's most selective colleges, including Yale, Stanford, Columbia, Princeton, and UC Berkeley, found that 78% of Latino freshmen and 64% of black freshmen came from high schools with less than 50% black or Latino enrollment. See MASSEY ET AL., supra note 39, at 94 tbl.5.4.
87. See ORFIELD & LEE, supra note 3, at 30, 31 tbl.14; Social Science Statement, supra note 35, at App. 28-29, 35-36.
88. 515 U.S. 70, 114 (1995) (Thomas, J., concurring).
89. Id.
90. Id. at 119.
91. Id. at 122.
92. Some recent efforts include Kathryn M. Borman et al., Accountability in a Postdesegregation Era: The Continuing Significance of Racial Segregation in Florida's Schools, 41 AM. EDUC. RES. J. 605 (2004);
93. Jonathan Guryan, Desegregation and Black Dropout Rates, 94 AM. ECON. REV. 919 (2004);
94. Roslyn Arlin Mickelson, The Academic Consequences of Desegregation and Segregation: Evidence from the Charlotte-Mecklenburg Schools, 81 N.C. L. REV. 1513 (2003);
95. DOUGLAS N. HARRIS, CTR. FOR AMERICAN PROGRESS, LOST LEARNING, FORGOTTEN PROMISES: A NATIONAL ANALYSIS OF SCHOOL RACIAL SEGREGATION, STUDENT ACHIEVEMENT, AND "CONTROLLED CHOICE" PLANS (Nov. 2006), http://www.americanprogress.org/issues/2006/11/pdf/lostlearning.pdf;
96. and DAVID CARD & JESSE ROTHSTEIN, RACIAL SEGREGATION AND THE BLACK-WHITE TEST SCORE GAP (Mar. 2006) (Nat'l Bureau of Econ. Research Working Paper No. 12078), http://www.nber.org/papers/w12078.
97. See ERIC A. HANUSHEK ET AL., NEW EVIDENCE ABOUT BROWN V. BOARD OF EDUCATION: THE COMPLEX EFFECTS OF SCHOOL RACIAL COMPOSITION ON ACHIEVEMENT 12 (Oct. 2004), http://edpro.stanford.edu/hanushek/admin/pages/files/uploads/race. pdf.
98. See id. at 12-14, 22-23 (discussing controls).
99. See id. at 13-18.
100. See id. at 22. In other words, the study found little or no evidence of nonlinearity; an increase in black enrollment in a school with low black enrollment had a similar effect on achievement as the same increase in a school with high black enrollment.
101. Id. at 23-24.
102. Id. at 21.
103. HANUSHEK ET AL., supra note 74. at 20-21. In particular, the study noted the "controversial" hypothesis that "some blacks discourage others from excelling academically." Id. (citing inter alia John Ogbu & Signithia Fordham, Black Students' School Success: Coping with the Burden of "Acting White," 18 URB. REV. 176 (1986) (describing oppositional culture among black students that associates academic achievement with "acting white" and thus hinders black school performance),
104. and JOHN MCWHORTER, LOSING THE RACE: SELF-SABOTAGE IN BLACK AMERICA (2000) (arguing that underperformance of black students is rooted in cultural attitudes of separateness, victimhood, and anti-intellectualism)).
105. But cf. Philip J. Cook & Jens Ludwig, The Burden of "Acting White": Do Black Adolescents Disparage Academic Achievement?, in THE BLACK-WHITE TEST SCORE GAP 375, 392 (Christopher Jencks & Meredith Phillips eds., 1998) ("[O]ur results do not support the belief that group differences in peer attitudes account for the black-white gap in educational achievement.");
106. Roland G. Fryer, "Acting White": The Social Price Paid by the Best and Brightest Minority Students, EDUC. NEXT, Winter 2006, at 52 (finding evidence that "acting white" is a problem in racially integrated public schools but not in public schools with 80% or higher black enrollment). Alternatively, stereotype threat - a form of test performance anxiety arising from fear of confirming negative stereotypes about academic ability,
107. see Claude M. Steele & Joshua Aronson, Stereotype Threat and the Test Performance of Academically Successful African Americans, in THE BLACK-WHITE TEST SCORE GAP, supra, at 401 - may help explain the findings of the Hanushek study if it could be shown that stereotype threat increases as black school enrollment increases.
108. Cf. Ronald F. Ferguson, A Diagnostic Analysis of Black-White GPA Disparities in Shaker Heights, Ohio, in BROOKINGS PAPERS ON EDUCATION POLICY 347, 377 (2001) ("Explanations for [the black-white achievement gap] are along a continuum from an emphasis on genetics and heredity at one end, to environmental factors at the other, with many blends in the middle. Few, if any, of the explanations are flattering to black people.").
109. See HANUSHEK ET AL., supra note 74, at 22-23.
110. JENNIFER KING RICE, ECON. POL'Y INST., TEACHER QUALITY: UNDERSTANDING THE EFFECTIVENESS OF TEACHER ATTRIBUTES V (2003);
111. see Steven G. Rivkin et al., Teachers, Schools, and Academic Achievement, 73 ECONOMETRICA 417 (2005);
112. William L. Sanders & Sandra P. Horn, Research Findings from the Tennessee Value-Added Assessment System (TVAAS) Database: Implications for Educational Evaluation and Research, 12 J. PERSONNEL EVAL. EDUC. 247, 255 (1998) ("[T]eacher effectiveness is the major factor influencing student academic gain").
113. In 2004-05, for example, 20% of teachers in California schools with over 90% minority enrollment were underprepared (lacked a full credential for their teaching assignment) or were novice teachers (in their first or second year of teaching) compared to only 11% of teachers in schools with 30% or lower minority enrollment. See CAMILLE E. ESCH ET AL., TEACHING AND CALIFORNIA'S FUTURE: THE STATUS OF THE TEACHING PROFESSION 2005, at 70-71 (2005). The percentage of underprepared math and science teachers was four times greater in schools with over 90% minority enrollment (16%) than in schools with 30% or lower minority enrollment (4%). See id. at 74-76;
114. see also Charles T. Clotfelter et al., Who Teaches Whom? Race and the Distribution of Novice Teachers, 24 ECON. EDUC. REV. 377, 391 (2005) ("Within districts [in North Carolina], novice teachers are disproportionately assigned to the schools and to the classrooms within schools that disproportionately serve black students.").
115. See Donald Boyd et al., Explaining the Short Careers of High-Achieving Teachers in Schools with Low-Performing Students, 95 AM. ECON. REV. 166 (2005) (examining teacher turnover in low-achieving New York City schools);
116. Hamilton Lankford et al., Teacher Sorting and the Plight of Urban Schools: A Descriptive Analysis, 24 EDUC. EVAL. & POL'Y ANALYSIS 37, 54 (2002) ("Nonwhite, poor, and low performing students, particularly those in urban areas, attend schools with less qualified teachers.").
117. See Eric A. Hanushek et al., Why Public Schools Lose Teachers, 39 J. HUM. RESOURCES 326, 343-50 (2004).
118. For a nontechnical presentation of this study, see Eric A. Hanushek et al., The Revolving Door, EDUC. NEXT, Winter 2004, at 77.
119. See Benjamin Scafidi et al., Race, Poverty, and Teacher Mobility 5, 13-14 (2007)
120. (forthcoming in ECON. OF EDUC. REV.), available at http://ssrn.com/abstract=902032; see id. at 6-9 (describing data set).
121. See id. at 5, 14-16.
122. Hanushek et al., Why Public Schools Lose Teachers, supra note 86, at 343.
123. Scafidi et al., supra note 87, at 16.
124. See STEPHEN CARROLL ET AL., RAND, THE DISTRIBUTION OF TEACHERS AMONG CALIFORNIA'S SCHOOL DISTRICTS AND SCHOOLS 8-11 (2000) (describing data set).
125. See id. at 76, 114-15.
126. See Loeb et al., supra note 63, at 62-65.
127. See id. at 61 tbl.5.
128. Rivkin et al., supra note 83, at 447; accord RICE, supra note 83, at 16-19; Larry V. Hedges & Rob Greenwald, Have Times Changed? The Relation Between School Resources and School Performance, in DOES MONEY MATTER? THE EFFECT OF SCHOOL RESOURCES ON STUDENT ACHIEVEMENT AND ADULT SUCCESS 74, 87 (Gary Burtless ed., 1996);
129. Linda Darling-Hammond, Teacher Quality and Student Achievement: A Review of State Policy Evidence, EDUC. POL'Y ANALYSIS ARCHIVES, Jan. 1, 2000, http://epaa.asu.edu/epaa/ v8n1/.
130. Loeb et al., supra note 63, at 49.
131. Id. at 48.
132. Id. at 49; see also ESCH ET AL., supra note 84, at 64 (high teacher turnover "erod[es] schools' professional culture" and requires schools to "spend precious resources each year hiring and inducting new teachers").
133. See Linda Jacobson, Teacher-Pay Incentives Popular But Unproven, EDUC. WK., Sept. 27, 2006, at 1.
134. See, e.g., ROBERT GORDON ET AL., BROOKINGS INST., IDENTIFYING EFFECTIVE TEACHERS USING PERFORMANCE ON THE JOB 17-18 (2006) (collecting studies);
135. Hanushek et al., The Revolving Door, supra note 86, at 81-82 (showing that salary increases of 25% to 40% would be needed to retain female teachers in high-minority urban schools, "an enormously expensive reform").
136. If financial incentives are ineffective, one might argue that school districts, before resorting to race-conscious school assignment, should simply restrict or eliminate seniority-based teacher transfers. To my knowledge, this has never been seriously attempted. Such a measure carries the obvious risk of aggravating the difficulty of attracting teachers to high-minority schools. Cf. Grutter v. Bollinger, 539 U.S. 306, 339 (2003) (strict scrutiny "does not require exhaustion of every conceivable race-neutral alternative").
137. Reynolds Farley et al., The Residential Preferences of Blacks and Whites: A Four-Metropolis Analysis, 8 HOUSING POL'Y DEBATE 763, 791 (1997);
138. see HOWARD SCHUMAN ET AL., RACIAL ATTITUDES IN AMERICA: TRENDS AND INTERPRETATIONS 147-50 (1998).
139. See Freeman v. Pitts, 503 U.S. 467, 495 (1992) (crediting evidence that "whites prefer a racial mix of 80% white and 20% black, while blacks prefer a 50-50 mix"); MASSEY & DENTON, supra note 41, at 88-96 (demonstrating large gap between blacks' and whites' preferences for racially mixed neighborhoods).
140. See Hanushek et al., Why Public Schools Lose Teachers, supra note 86, at 343, 345, 347; Scafidi et al., supra note 87, at 19-20. The implication is not that high-minority schools are worse off because black and Hispanic teachers are worse than white teachers.
141. See Thomas S. Dee, The Race Connection: Are Teachers More Effective with Students Who Share Their Ethnicity?, EDUC. NEXT, Spring 2004, at 53 (finding that having a teacher of the same race is associated with higher test scores for black and white children).
142. But cf. Donald Boyd et al., The Draw of Home: How Teachers' Preferences for Proximity Disadvantage Urban Schools, 24 J. POL'Y ANALYSIS & MGMT. 113, 127 (2005) (observing that teachers prefer to teach near their hometowns and that "if, historically, the graduates of urban high schools have not received adequate education, then the cities face a less-qualified pool of potential teachers"). Whatever the quality of minority teachers, the fact is that white teachers comprise the majority of the teaching force even in high-minority schools. See Hanushek et al, The Revolving Door, supra note 86, at 81. Thus, the mobility pattern of experienced white teachers away from high-minority schools is a serious concern despite the opposite pattern of mobility among black and Latino teachers.
143. See Hanushek et al., Why Public Schools Lose Teachers, supra note 86, at 343. These differential effects by teacher's race are unaffected by controls for district personnel practices that may tend to place minority teachers in high-minority schools, see id. at 345, 347, leading the study to conclude that racial composition effects on teacher transfers "are more deeply rooted in individual teacher decisions," id. at 347. It is possible that teacher mobility is explained not directly by teacher preferences for schools with particular racial mixes, but by how far away teachers live from schools of varying racial composition. See id. at 340 ("[I]f there is extensive residential segregation and teachers prefer to work closer to where they live, blacks may rank predominantly black schools much more highly than Hispanic and white colleagues, other things equal."); Scafidi et al., supra note 87, at 25 ("[W]hite teachers may tend to live further from black schools than black teachers."). Yet even under this explanation, school integration is a pertinent strategy for mitigating racial composition effects on teacher mobility. As the Court has recognized, school segregation is not only a consequence but also a cause of residential segregation (presumably no less among teachers than among the general population). See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 20-21 (1971) ("People gravitate toward school facilities, just as schools are located in response to the needs of people. The location of schools may thus influence the patterns of residential development of a metropolitan area and have important impact on composition of inner-city neighborhoods."); Social Science Statement, supra note 35, at App. 25-27 (reviewing evidence that "integrated schools can help reduce residential segregation").
144. See Grutter, 539 U.S. at 333-43; Gratz v. Bollinger, 539 U.S. 244, 270-75 (2003).
145. Some of Grutter and Gratz's narrow tailoring elements - minimizing burdens on affected parties, consideration of race-neutral alternatives, and durational limits - sensibly apply to K-12 school assignment on the principle that race should be used no more than necessary. I will not discuss these elements here.
146. See McFarland v. Jefferson County Pub. Sch., 330 F. Supp. 2d 834, 857-58 (W.D. Ky. 2004) (favorably comparing school district's racial guidelines to the law school's minority enrollment range approved in Grutter and to the Amherst College minority enrollment range cited approvingly by Justice Kennedy in his Grutter dissent); Meredith Brief for Respondents, supra note 11, at 42-43; Seattle Brief for Respondents, supra note 11, at 44.
147. See Grutter, 539 U.S. at 335 ("Quotas impose a fixed number or percentage which must be attained, or which cannot be exceeded." (internal quotation marks and citation omitted)).
148. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 426 F.3d 1162, 1169-70 (9th Cir. 2005) (en banc) (describing race-based tiebreaker); Hampton v. Jefferson County Bd. of Educ., 72 F. Supp. 2d 753, 769 (W.D. Ky. 1999) ("If the school lies near the 15% minimum black enrollment, it could accept black applicants but it would deny admission to a disproportionate number of non-black students. Conversely, if the school approaches the 50% maximum black enrollment, it would deny admission to a disproportionate number of black students.").
149. See Gratz, 539 U.S. at 271-75.
150. Adarand Constructors v. Peña, 515 U.S. 200, 228 (1995).
151. Seattle, 426 F.3d at 1193 (Kozinski, J., concurring in the result).
152. See Grutter, 539 U.S. at 334-39; Gratz, 539 U.S. at 271-75; City of Richmond v. J.A. Croson Co., 488 U.S. 469, 507-08 (1989); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 315-18 (1978) (opinion of Powell, J.).
153. See Grutter, 539 U.S. at 334 (citing Bakke, 438 U.S. at 315-16 (Powell, J.)).
154. Bakke, 438 U.S. at 298 (Powell, J.); see Metro Broad., Inc. v. FCC, 497 U.S. 547, 636 (1990) (Kennedy, J., dissenting) ("Special preferences . . . can foster the view that members of the favored groups are inherently less able to compete on their own.").
155. See Bakke, 438 U.S. at 317 (Powell, J.) (Race-conscious admissions must be "flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant.").
156. See Gratz, 539 U.S. at 271; Metro Broadcasting, 497 U.S. at 636 (Kennedy, J., dissenting) ("[T]he FCC policy seems based on the demeaning notion that members of the defined racial groups ascribe to certain 'minority views' that must be different from those of other citizens.").
157. See Bakke, 438 U.S. at 313 (Powell, J.); supra text accompanying note 46.
158. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 426 F.3d 1162, 1194 (9th Cir. 2005) (en banc) (Kozinski, J., concurring in the result). These differences between affirmative action and K-12 school assignment have been ably explained elsewhere. See id. at 1180-84 (en banc) (finding individualized consideration requirement inapplicable because of contextual differences between university admissions and school assignment); see also James E. Ryan, Voluntary Integration: Asking the Right Questions, 67 OHIO ST. L.J. 327, 341-42 (2006);
159. Neil Siegel, Race-Conscious Student Assignment Plans: Balkanization, Integration, and Individualized Consideration, 56 DUKE L.J. 781, 836-37 (2006).
160. See Korematsu v. United States, 323 U.S. 214 (1944); Hirabayashi v. United States, 320 U.S. 81 (1943).
161. See League of United Latin Am. Citizens v. Perry, 126 S. Ct. 2594, 2663 (2006) (Roberts, C.J., concurring in part, concurring in the judgment, and dissenting in part) ("It is a sordid business, this divvying us up by race."); Shaw v. Reno, 509 U.S. 630, 647 (1993) ("A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid.").
162. See Miller v. Johnson, 515 U.S. 900, 915 (1995) ("Electoral districting is a most difficult subject for legislatures, and so the States must have discretion to exercise the political judgment necessary to balance competing interests.").
163. See id. at 916 ("Redisricting legislatures will . . . almost always be aware of racial demographics; but it does not follow that race predominates in the redistricting process."); Shaw v. Reno, 509 U.S. at 646 ("[T]he legislature always is aware of race when it draws district lines, just as it is aware of age, economic status, religious and political persuasion, and a variety of other demographic factors.") (emphasis in original).
164. Miller, 515 U.S. at 916.
165. The Court has never squarely held that these interests can justify the predominant use of race in redistricting, but it has assumed this on several occasions where it held that the plan at issue served no interest in remedying identified discrimination or ensuring compliance with the Voting Rights Act. See Bush v. Vera, 517 U.S. 952, 976-82 (1996) (plurality opinion); Shaw v. Hunt, 517 U.S. 899, 908-18 (1996); Miller, 515 U.S. at 920-27; cf. King v. Ill. Bd. of Elections, 522 U.S. 1087 (1998) (summarily affirming three-judge district court decision holding that racially gerrymandered Chicago "ear muff" district was narrowly tailored to avoid violation of Section 2 of the Voting Rights Act). Justices Stevens, Souter, Ginsburg, and Breyer would hold that compliance with the Voting Rights Act does justify the predominant use of race in redistricting. See Vera, 517 U.S. at 1033-35 (Stevens, J., dissenting, joined by Ginsburg & Breyer, JJ.); id. at 1065 (Souter, J., dissenting, joined by Ginsburg & Breyer, JJ.). Four additional Justices agree that "compliance with § 5 of the Voting Rights Act" can justify the predominant use of race in redistricting on the principle that "race may be used where necessary to remedy identified past discrimination." LULAC v. Perry, 126 S. Ct. at 2667 (Scalia, J., concurring in the judgment in part and dissenting in part, joined by Roberts, C. J., and Thomas & Alito, JJ.).
166. Miller, 515 U.S. at 916.
167. Id. at 913.
168. Shaw v. Reno, 509 U.S. at 647. Further, according to the Court, when racial considerations subordinate conventional redistricting factors, the resulting scheme "may exacerbate . . . patterns of racial bloc voting" and encourages elected officials "to believe that their primary obligation is to represent only the members of [one racial] group, rather than their constituency as a whole." Id. at 648.
169. Id. at 657.
170. Cf. Johnson v. California, 543 U.S. 499, 508 n.2 (2005) (racially segregative prison policy improperly "'assumes that every incoming prisoner is incapable of getting along with a cell mate of a different race'" (quoting Brief for Former State Corrections Officials as Amici Curiae at 19-20)). Of course, this is not to deny that children form racial identity and attitudes early in life. See LAWRENCE A. HIRSCHFELD, RACE IN THE MAKING: COGNITION, CULTURE, AND THE CHILD'S CONSTRUCTION OF HUMAN KINDS (1996);
171. FRANCES E. ABOUD, CHILDREN AND PREJUDICE (1988);
172. James A. Banks, Multicultural Education: Historical Development, Dimensions, and Practice, in HANDBOOK OF RESEARCH ON MULTICULTURAL EDUCATION 3, 16 (James A. Banks & Cherry McGee Banks eds., 2d ed. 2004) (collecting research).
173. Johnson, 543 U.S. at 507.
174. The role of religious institutions in interracial socialization should not be overstated despite the historical role of many churches and prominent clergy in advocating for a racially integrated society. See MICHAEL O. EMERSON & RODNEY M. WOO, PEOPLE OF THE DREAM: MULTIRACIAL CONGREGATIONS IN THE UNITED STATES 34-46 (2006) (finding that "more than nine out of every ten congregations in the United States are racially homogenous" (defined as having 80% or more members from a single racial group) and that religious congregations are far less racially diverse than public schools and surrounding neighborhoods).
175. This concern falls into the category of "expressive harms" described by Richard Pildes and Richard Niemi: An expressive harm is one that results from the ideas or attitudes expressed through a governmental action, rather than from the more tangible or material consequences the action brings about. On this view, the meaning of a governmental action is just as important as what that action does. Public policies can violate the Constitution not only because they bring about concrete costs, but because the very meaning they convey demonstrates inappropriate respect for relevant public values. On this unusual conception of constitutional harm, when a governmental action expresses disrespect for such values, it can violate the Constitution. Richard H. Pildes & Richard G. Niemi, Expressive Harms, "Bizarre Districts," and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 MICH. L. REV. 483, 506-07 (1993). When courts recognize expressive harms, they "engage in exquisitely difficult acts of interpretation" because they are interpreting "the expressive significance or social meaning that a particular governmental action has in the specific historical, political, and social context in which it takes place." Id. at 507-08; see infra note 141 (discussing interpretive difficulties). "But courts have not found these potential problems to be reason enough to abandon all judicial concern for expressive harms." Id. at 508. Shaw v. Reno "rests on just this concern for expressive harms," id., and it would be no surprise if the Court raised similar concerns about race-conscious school assignment.
176. Cf. Heather K. Gerken, Understanding the Right to an Undiluted Vote, 114 HARV. L. REV. 1663, 1693, 1694 n.122 (2001) (observing that the Court has "avoided expositions of the expressive harm doctrine" in redistricting cases after Shaw v. Reno, but that "[g]iven the shifting nature of the alliances formed by the Justices and their noteworthy failure to abandon the expressive harm theory, expressive harms might well reemerge in future Supreme Court decisions").
177. Georgia v. Ashcroft, 539 U.S. 461, 490 (2003) (citing Shaw v. Reno, 509 U.S. at 657).
178. Unlike the redistricting context, where it is the plaintiff's burden to show that race was the legislature's predominant motivation in order to trigger strict scrutiny, see Miller v. Johnson, 515 U.S. 900, 916 (1995), here the school board bears the burden of showing nonpredominance in order to satisfy narrow tailoring.
179. A constitutional doctrine recognizing expressive harms, see supra note 134, should logically assign constitutional significance to expressive benefits of government actions that nurture or sustain "constitutionally underwritten public understandings about the appropriate structure of values in some arena of public action," Pildes & Niemi, supra note 134, at 507.
180. See Hampton v. Jefferson County Bd. of Educ., 102 F. Supp. 2d 358, 380 (W.D. Ky. 2000) ("Good faith was required in the use of race to remedy the former imbalances. If the Constitution somehow prohibits a school board from maintaining a desegregated school system, the good faith factor becomes something of a sham."). The Louisville community overcame enormous obstacles to achieve its current pattern of racially integrated schools: A full telling of that story would begin by describing the pain, inhumanity, and social degradation caused by state imposed school segregation. It would describe the individual potential which segregation suppressed; the spirit and determination of those who overcame the obstacles it imposed; and the moral strength of those who fought the legal, social, and political battle against it and other forms of discrimination. It would necessarily describe the confusion and outrage at Judge Gordon's busing order which seemed to tear this community apart as it sent children from their own neighborhoods to places that many of both races had never before seen. Finally, it would describe a school community which in many respects came together for a common purpose and worked at understanding one another well enough to overcome all these traumatic events. In doing so, at the very least, the Jefferson County schools created something positive and workable. Hampton v. Jefferson County Bd. of Educ., 72 F. Supp. 2d 753, 755 (W.D. Ky. 1999); see also Brief for Prichard Committee for Academic Excellence as Amicus Curiae Supporting Respondents at 7-8, Meredith v. Jefferson County Bd. of Educ., No. 05-915 (U.S. Oct. 10, 2006) (describing violent riots in Louisville with over 10,000 people protesting court-ordered desegregation in 1975); id. at 8-9 ("While the great majority of Louisvillians opposed desegregation in 1975, the vast majority of parents polled in 2000 - 77% - supported the use of race in student assignment, and 82% of parents believed that students benefited from a racially diverse school environment."). The testimony of school board member Carol Haddad also describes the special significance of integrated schools to Louisville, especially to its children: Q. Do you personally believe in the importance of desegregation, Miss Haddad? A. I really do. Q.Why? A. Well, I believe for the children today - when my children - they were in segregated schools, and then when the merger and desegregation came and they were put into desegregated schools, they thrived, and now my grandchildren, who are now in the public schools, we are starting to see some of the things we wanted to accomplish back in 1975 because they could not understand why you would ever have a school that didn't have diversity. So many of their friends are - they bring them home with them, African American, Spanish. So they don't understand what all the problem would be. They couldn't understand having a school system that didn't have all kids in it. Joint Appendix at 113-14, Meredith v. Jefferson County Bd. of Educ., No. 05-915 (U.S. cert. granted June 5, 2006) [hereinafter Meredith Joint Appendix].
181. See supra note 126 and accompanying text (discussing compliance with Voting Rights Act and remedying past discrimination as possible bases for predominant use of race in redistricting).
182. This framework assumes the applicability of other narrow tailoring factors, i.e., burdens on affected parties, race-neutral alternatives, and durational limits. See supra note 107.
183. I recognize there are reasons for skepticism toward the claim of real or perceived social harm arising from governmental race-consciousness. For example, California's experience with Proposition 209, see CAL. CONST. art. I, § 31, hardly confirms that ending racial preferences reduces societal race-consciousness. See ELLIS COSE, KILLING AFFIRMATIVE ACTION: WOULD ENDING IT REALLY RESULT IN A BETTER, MORE PERFECT UNION? (2006) (chronicling the 10-year impact of Proposition 209). It is likewise difficult to assess whether voluntary K-12 integration policies or the racial isolation that typically exists absent such policies contributes more to racial consciousness, hostility, or resentment. See Siegel, supra note 120, at 839 ("Race-conscious state action can send a message that increases balkanization, but then so can the refusal of government to act. There is nothing necessarily wholesome about the status quo."). Perceptions of racial divisiveness are also highly subjective; some people see an intolerable risk of divisiveness even in widely accepted governmental practices such as collection of racial data.
184. See Rebecca Trounson, Prop. 54: Coping with Race Distinctions, L.A. TIMES, Sept. 28, 2003, at S3 (discussing California ballot measure to prohibit public entities from collecting racial data). These interpretive difficulties underscore Professors Pildes and Niemi's observation that adjudication of expressive harms is "fraught with complexity and unlikely to yield determinate, single right answers." Pildes & Niemi, supra note 134, at 508. However, the Supreme Court in many contexts has made clear its worry that the use of race by government tends to perpetuate or exacerbate race-consciousness and racial division throughout society. See Grutter v. Bollinger, 539 U.S. 306, 341-43 (2003); Miller v. Johnson, 515 U.S. 900, 912 (1995); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 630-31 (1991). Instead of trying to dislodge this element of current doctrine, here I simply take it at face value as part of the framework that the Court will likely apply to race-conscious school assignment.
185. See Grutter, 539 U.S. at 333 ("The purpose of the narrow tailoring requirement is to ensure that 'the means chosen "fit" . . . th[e] compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.'" (quoting City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (plurality opinion))). But cf. infra note 143.
186. In the university admissions context, for example, consider the narrow tailoring criteria that race-conscious affirmative action must "not unduly harm members of any racial group," Grutter, 539 U.S. at 341, and "must be limited in time," id. at 342. Neither requirement probes the "fit" between a specific use of race and a university's interest in educational diversity; both are motivated by legal norms extrinsic to the concept of "fit." As the Court explained in Grutter, the first requirement is based on the idea that "'there are serious problems of justice connected with the idea of preference itself,'" id. at 341 (quoting Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 298 (1978) (opinion of Powell, J.)), and the second reflects the belief that "'[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race,'" id. at 341-42 (quoting Palmore v. Sidoti, 466 U.S. 429, 432 (1984)). Thus, despite its assertion that the purpose of narrow tailoring "is to ensure that the means chosen [closely] fit . . . th[e] compelling goal," id. at 333 (internal quotation marks and citation omitted), it is clear that the Court has interpreted narrow tailoring to include other substantive requirements. See also Ian Ayres, Narrow Tailoring, 43 UCLA L. REV. 1781 (1996) (arguing, in the context of government contracting, that the Court's preference for race-neutral means and aversion to racial quotas do not follow logically from, and thus implicate values other than, the principle that the size of racial preferences should be tailored to the remedial need).
187. See Easley v. Cromartie, 532 U.S. 234, 241 (2001) ("Race must not simply have been 'a motivation for the drawing of a majority-minority district,' but 'the "predominant factor" motivating the legislature's districting decision.'" (quoting Bush v. Vera, 517 U.S. 952, 959 (1996) (plurality opinion) (quoting Miller v. Johnson, 515 U.S. 900, 916 (1995))); see also Vieth v. Jubelirer, 541 U.S. 267, 335 (2004) (plurality opinion) ("Under the Shaw cases, then, the use of race as a criterion in redistricting is not per se impermissible, but when race is elevated to paramount status - when it is the be-all and end-all of the redistricting process - the legislature has gone too far." (citations omitted)) (emphasis in original).
188. Bakke, 438 U.S. at 396 (Marshall, J., dissenting); see id. at 392-94 (describing history of racial segregation from Plessy to Brown, including segregation in K-12 public schools and public graduate and professional schools).
189. For examples of how the Court has analyzed these factors to decide whether race is the predominant factor in redistricting, see Easley, 532 U.S. at 243-57; Vera, 517 U.S. at 959-76 (plurality opinion); Shaw v. Hunt, 517 U.S. 899, 905-07 (1996); and Miller, 515 U.S. at 917-20.
190. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 426 F.3d 1162, 1170 (9th Cir. 2005) (en banc) (observing that race affected the school assignments of 305 students in four schools in 2000-01).
191. See McFarland v. Jefferson County Pub. Sch., 330 F. Supp. 2d 834, 844 n. 15 (W.D. Ky. 2004).
192. Bakke, 438 U.S. at 316 (quoting Harvard College admissions plan).
193. Grutter v. Bollinger, 539 U.S. 306, 387 (2003) (Kennedy, J., dissenting) (citing with approval Justice Powell's opinion in Bakke).
194. See Gratz v. Bollinger, 539 U.S. 244, 272 (2003) ("the [university's] automatic distribution of 20 points has the effect of making the factor of race . . . decisive for virtually every minimally qualified underrepresented minority applicant" (internal quotation marks omitted)).
195. Miller v. Johnson, 515 U.S. 900, 912 (1995) (quoting Metro Broad., Inc. v. FCC, 497 U.S. 547, 602 (1990) (O'Connor, J., dissenting)) (internal quotation marks omitted).
196. Were it otherwise, the plurality in Bush v. Vera would not have needed to examine the wide range of evidence it did to find predominance after observing that the redistricters "availed themselves fully of th[e] opportunity" to "make more intricate refinements on the basis of race than on the basis of other demographic information" using a computer program with "block-by-block racial data." 517 U.S. at 961-62 (plurality opinion). The plurality made clear that the "manipulat[ion] [of] district lines to exploit unprecedentedly detailed racial data" was not "independently sufficient" to show that race predominated in redistricting. Id. at 962.
197. Miller, 515 U.S. at 916 (emphasis added).
198. See supra notes 119-120 and accompanying text.
199. Shaw v. Reno, 509 U.S. 630, 647 (1993).
200. Gratz v. Bollinger, 539 U.S. 244, 298 (2003) (Souter, J., dissenting); see id. at 305 (Ginsburg, J., dissenting) ("If honesty is the best policy, surely [an] accurately described, fully disclosed [admission system] is preferable to achieving similar numbers through winks, nods, and disguises.").
201. Miller, 515 U.S. at 916.
202. See, e.g., State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003) ("[I]n practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process."); Zadvydas v. Davis, 533 U.S. 678, 701 (2001) (holding that detention beyond six months is presumptively unreasonable under a federal statute authorizing detention of aliens pending removal); County of Riverside v. McLaughlin, 500 U.S. 44, 56-58 (1991) (adopting presumption, based on lower court estimate of time needed to process arrestee, that 48-hour delay in probable cause hearing after arrest is reasonable and thus constitutionally permissible).
203. An example may help to provide a feel for the magnitude of a sensible numerical limit on race-based assignments under the nonpredominance standard. Suppose a district with 60 white and 40 black students consists of two schools of equal size, A and B. Suppose also that residential segregation is so severe that, if students were assigned to neighborhood schools, school A would enroll 45 whites and five blacks while school B would have 15 whites and 35 blacks. To achieve the districtwide ratio of whites to blacks in each school, 15 students of each race - or 30% of district enrollment - would need to switch schools, resulting in 30 whites and 20 blacks in both school A and school B. The nonpredominance standard limits the share of assignments that may be decided by race by prohibiting school districts from using race with the type of rigidity and primacy necessary to produce uniform school enrollments that exactly mirror district demographics. Were the hypothetical district to give proper weight to important nonracial considerations and nonpredominant weight to race, its assignment plan would produce integrated school enrollments within a broad and flexible range. For example, only 10 students of each race - or 20% of total enrollment - would need to move to achieve 30% to 50% black enrollment in each school (i.e., 35 whites and fifteen blacks in school A, 25 whites and 25 blacks in school B). This example is of course highly simplified, but it provides a rough sense of the kind of number that would be a reasonable limit on race-based assignments under the predominance inquiry.
204. Siegel, supra note 120, at 847.
205. Cf. Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227 (1995) (remanding to the lower courts because "our decision today alters the playing field in some important respects" and because "unresolved questions remain concerning the details of the complex regulatory regimes"); Shaw v. Reno, 509 U.S. 630, 657-58 (1993) (remanding to the district court for application of newly clarified legal standards for determining the existence and constitutionality of a racial gerrymander).
206. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 426 F.3d 1162, 1168 (9th Cir. 2005) (en banc).
207. See id. at 1168 & n.4; see also Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) (holding the state initiative unconstitutional).
208. See Seattle, 426 F.3d at 1168.
209. See id.
210. Id.
211. See id. at 1168-69.
212. See id. at 1170.
213. Id.
214. Seattle, 426 F.3d at 1170.
215. See id. at 1171.
216. See id. at 1169 ("In any given oversubscribed school, the sibling tiebreaker accounts for somewhere between 15 to 20 percent of the admissions to the ninth grade class."); id. at 1171 ("In any given oversubscribed schools, the distance-based tiebreaker accounts for between 70 to 75 percent of admissions to the ninth grade.").
217. If anything, the use of race in the Seattle plan has been criticized for being too modest because it does not alleviate segregation in high-minority, undersubscribed high schools. See Brief for United States as Amicus Curiae Supporting Petitioner at 15, Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, No. 05-908 (U.S. Aug. 21, 2006) [hereinafter Seattle Brief of United States]. This criticism must be viewed with some skepticism, however, since it carries no implication (at least not in the United States' brief) that the plan would be more constitutionally sound if it used more aggressive race-conscious means to reduce segregation in schools that most parents do not choose. Although limiting the racial guidelines to oversubscribed schools has drawbacks, it is surely evidence that the district takes seriously a host of nonracial considerations in school assignment instead of subordinating them to an inflexible, paramount goal of racial integration.
218. For a detailed history, see Hampton v. Jefferson County Bd. of Educ., 72 F. Supp. 2d 753, 755-67 (W.D. Ky. 1999).
219. See id. at 762-66.
220. See id. at 767.
221. Id.
222. McFarland v. Jefferson County Pub. Sch., 330 F. Supp. 2d 834, 842-43 (W.D. Ky. 2004). At the elementary level, multiple schools are clustered into a single resides area; at the secondary level, there is only one middle or high school in each resides area. See id.
223. See id. at 843-45. Although the district distinguishes between magnet schools and magnet or optional programs, see id. at 843 (describing 13 magnet schools, 18 magnet programs, and optional programs in 22 schools), I include magnet schools within the term "magnet or optional programs" for simplicity.
224. See id. at 842, 844-45 & n.15.
225. See Meredith Brief for Respondents, supra note 11, at 8 & n. 11.
226. Id. at 8 & n. 10.
227. Id. at 7, 9.
228. See id. at 7, 10; McFarland v. Jefferson County Pub. Sch., 330 F. Supp. 2d 834, 844 n.15 (W.D. Ky. 2004) ("[Joshua McFarland's] transfer request was denied under the racial guidelines . . . .").
229. See Meredith Brief for Respondents, supra note 11, at 8 ("Racial integration in resides middle schools and high schools . . . is accomplished primarily through the drawing of attendance areas, some of which have non-contiguous boundaries. In elementary schools, it is accomplished by the cluster plan . . . ."); McFarland, 330 F. Supp. 2d at 843 ("The geographic boundaries of resides areas and cluster schools determine most school assignments.").
230. See McFarland, 330 F. Supp. 2d at 842; Hampton v. Jefferson County Bd. of Educ., 72 F. Supp. 2d 753, 768 (W.D. Ky. 1999). Maps of the elementary, middle, and high school resides areas appear in the Meredith Joint Appendix, supra note 138, at 64-66, but it is unclear from these maps how many noncontiguous zones there are.
231. See McFarland, 330 F. Supp. 2d at 860 (discussing "JCPS policy of creating communities of equal and integrated schools"); Meredith Brief for Respondents, supra note 11, at 2-3 (describing basic equality among all schools in funding, instructional staff, curriculum, accountability, discipline, dress code, homework policies, and extracurricular activities).
232. This is the basis for the use of magnet schools as a desegregation strategy. See, e.g., Magnet Schools Assistance Program, 20 U.S.C. §§ 7231-7231j (2002); 34 C.F.R. § 280.1 (2005). As the United States suggests, enhancing school quality can be an important race-neutral element of an overall strategy to produce racially integrated schools. See Seattle Brief of United States, supra note 174, at 25-27.
233. As further evidence of stable integration, "[t]he percentage of Jefferson County students attending public school has stabilized since 1984, and the percentage of white students in JCPS has likewise remained stable, despite a relative decline in white births." Meredith Brief for Respondents, supra note 11, at 9 (citing record) (emphasis in original).
234. See Hampton v. Jefferson County Bd. of Educ., 102 F. Supp. 2d 358, 371 n.29 (W.D. Ky. 2000) (discussing evidence that "a policy of strictly neighborhood schools" or the use of "current choice programs . . . in conjunction with basic neighborhood school assignment" would produce a significant number of racially identifiable schools).
235. See supra note 138.
236. See, e.g., Rapanos v. United States, 126 S. Ct. 2208, 2236 (2006) (Kennedy, J., concurring in the judgment) (concluding that a water or wetlands constitutes "navigable waters" under the Clean Water Act if it has a "significant nexus" to waters that are navigable in fact or could reasonably be made navigable); State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425-26 (2003) (holding that "courts must ensure that the measure of punishment is both reasonable and proportionate to the amount of harm to the plaintiff and to the general damages recovered" but "declin[ing] . . . to impose a bright-line ratio which a punitive damages award cannot exceed"); City of Boerne v. Flores, 521 U.S. 507, 520 (1997) (holding that validity of legislation under Section 5 of the Fourteenth Amendment requires "a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end"); Miller v. Johnson, 515 U.S.