Fulfilling the promise of brown? What parents involved means for louisville and the future of race in public education

Notre Dame Law Review

Volumn 83, Issue 5, 2008, Pages 2173-2226

  Hines, Meaghan ^a  

^a NONE

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EID: 53549101924     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (326)

1. The city of Louisville is located within the boundaries of Jefferson County, Kentucky.
2. 127 S. Ct. 2738 (2007).
3. The case was the oldest on the docket by the time the opinion was issued, with oral arguments having been heard on December 4, 2006. Some speculate that the reason for the delay was an effort by both the plurality and the dissent to edge Justice Kennedy closer to their respective points of view. See, e.g., Linda Greenhouse, Justices, 5-4, Limit Use of Race for School Integration Plans, N.Y. TIMES, June 29, 2007, at A24.
4. Linda Greenhouse, In Steps Big and Small, Supreme Court Moved Right, N.Y. TIMES, July 1, 2007, at A1.
5. (Brown I), 347 U.S. 483 (1954).
6. See infra Part I.
7. See infra Part III.A.
8. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2776 (2007) (Thomas, J., concurring) ("Supporting the school boards, one amicus has assured us that 'both early desegregation research and recent statistical and econometric analyses... indicate that there are positive effects on minority student achievement scores arising from diverse school settings.' Another brief claims that 'school desegregation has a modest positive impact on the achievement of African-American students.'" (alteration in original) (citations omitted)).
9. Hampton v. Jefferson County Bd. of Educ., 72 F. Supp. 2d 753, 755 (W.D. Ky. 1999).
10. For a more in-depth discussion of Brown I, see infra notes 86-88 and accompanying text.
11. See Newburg Area Council, Inc. v. Bd. of Educ., 489 F.2d 925, 927, 929 (6th Cir. 1973), vacated and remanded, 418 U.S. 918, 918 (1974), reinstated as modified, 510 F.2d 1358, 1359-61 (6th Cir. 1974).
12. Brown v. Bd. of Educ. (Brown I), 347 U.S. 483, 495 (1954) ("We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal.").
13. See Hampton, 72 F. Supp. 2d at 755-56.
14. See id. at 756.
15. See id. at 757.
16. The Kentucky State Board of Education ordered the Jefferson County and Louisville school systems to merge, effective as of April 1, 1975, thereby eliminating the Louisville Board of Education. See Cunningham v. Grayson, 541 F.2d 538, 539 (6th Cir. 1976).
17. Brown v. Bd. of Educ. (Brown II), 349 U.S. 294, 299 (1955). In Haycraft v. Board of Education, No. 7291 (W.D. Ky. Mar. 8, 1973), the plaintiffs alleged that the city board's attendance zone and transfer system allowed segregation to continue and caused the creation of racially identifiable schools. Id. slip op. at 4-5. In Newburg Area Council, Inc. v. Board of Education, No. 7045 (W.D. Ky. Mar. 8, 1973), the plaintiffs made the same contentions, specifically citing the concentration of black students at three elementary schools, and blaming the county for purposeful segregation. See id.;
18. see also Hampton, 72 F. Supp. 2d at 757-58.
19. Hampton, 72 F. Supp. 2d at 757-58. While the district of Anchorage, Kentucky, was also a proposed defendant, see id., Anchorage was not included in the ultimate desegregation remedy. The district court judge only considered reassignment plans for the Louisville Board of Education and the Jefferson County Board of Education in constructing his remedy. See JACK LYNE, SCHOOLHOUSE DREAMS DEFERRED 250 (1998).
20. See Newburg Area Council, Inc. v. Bd. of Educ., 489 F.2d 925, 927 (6th Cir. 1973), vacated and remanded, 418 U.S. 918, 918 (1974), reinstated as modified, 510 F.2d 1358, 1359-61 (6th Cir. 1974).
21. 402 U.S. 1 (1971). For a more in-depth discussion of Swann, see infra notes 102-09 and accompanying text.
22. Hampton, 72 F. Supp. 2d at 759-60 (quoting Swann, 402 U.S. at 31).
23. See id.
24. See Newburg Area Council, 489 F.2d at 929, 931.
25. See id. at 930.
26. Id. at 928 (quoting Green v. County Sch. Bd., 391 U.S. 430, 438 (1968)).
27. See id. at 932.
28. See Reply Brief at 4, Bd. of Educ. v. Newburg Area Council, Inc., 418 U.S. 918 (1974) (mem.) (No. 73-1430), 1974 WL 186320.
29. See LYNE, supra note 18, at 248.
30. "Plan X" was viewed as a compromise plan between the city-proposed and county-proposed plans, "Plan A" and "Plan C." Plan X involved the use of a black student ratio of twelve percent to thirty percent and a method of assignment in which students would have several years advance notice of the years in which they would be bused. See id. at 250.
31. 418 U.S. 717 (1974). For a more in-depth discussion of Milliken, see infra notes 120-25 and accompanying text.
32. See Newburg Area Council, Inc., 418 U.S. 918;
33. LYNE, supra note 18, at 242.
34. The Sixth Circuit decided that Milliken did not bar an interdistrict remedy involving both the city and county school districts because both school authorities had ignored and crossed district lines in the past, resulting in segregation. See Newburg Area Council, Inc. v. Bd. of Educ., 510 F.2d 1358, 1359-61 (6th Cir. 1974). Consequently, the Sixth Circuit reinstated its previous opinion with minor modifications. See id. at 1361.
35. See Linda Stahl, Jefferson Schools Ask Appeals Judge for Busing Delay, COURIER-J. (Louisville, Ky.), Aug. 19, 1975, at A1.
36. See Ken Loomis, Grayson Asks Parents to Send Children to School Today, COURIER-J. (Louisville, Ky.), Sept. 4, 1975, at A1.
37. See Stahl, supra note 33. Additionally, "[u] nder the plan, black students [we] re to be bused up to 10 of their 12 years in school and white students two of their 12 years." See Timeline: Desegregation in Jefferson County Public Schools, COURIER-JOURNAL. COM, Sept. 4, 2005, http://www.courier-journal.com/apps/pbcs.dll/ article?AID=2005 509040428 [hereinafter Timeline] (describing the nature and stages of the Louisville area racial assignment plans in public education).
38. See Linda Stahl, School Assignments Set for Blacks in Grades 7-11, COURIER-J. (Louisville, Ky.), Aug. 22, 1975, at A1.
39. Id.
40. See id.
41. See Antibusing Groups Urge 'Strike', Constitutional Amendment for Halt, COURIER-J. (Louisville, Ky.), July 11, 1974, at C3;
42. Parents Urged to Keep Children Out of School, COURIER-J. (Louisville, Ky.), July 11, 1974, at C3.
43. See Jim Adams, Concerned Parents Rally Cancelled for Prayer Vigil, COURIER-J. (Louisville, Ky.), Aug. 18, 1975, at A1.
44. See Stahl, supra note 33.
45. Linda Stahl, Appellate Judges Reject Jefferson County's Plea for Delay in Busing Plan, COURIER-J. (Louisville, Ky.), Aug. 21, 1975, at A1.
46. See Linda Stahl, Blackmun Denies Stay of Busing, COURIER-J. (Louisville, Ky.), Sept. 4, 1975, at A1.
47. See Busing Foes Hear Plans for Marches, COURIER-J. (Louisville, Ky.), Sept. 4, 1975, at A1.
48. Id.
49. See Loomis, supra note 34.
50. First-Day Attendance, COURIER-J. (Louisville, Ky.), Sept. 5, 1975, at A5;
51. see An Area-By-Area Look at the First Day of Busing in Jefferson County, COURIER-J. (Louisville, Ky.), Sept. 5, 1975, at A3 [hereinafter Area-By-Area Look].
52. See Area-By-Area Look, supra note 47.
53. See id.
54. See id.
55. See The Drivers... One Boycotts, One Gets an Egg on the Windshield, COURIER-J. (Louisville, Ky.), Sept. 5, 1975, at A7.
56. See Shots Fired into School Bus Parked in Driver's Driveway, COURIER-J. (Louisville, Ky.), Sept. 5, 1975, at A6.
57. See Clashes at Protests Bring Injuries, Arrests, COURIER-J. (Louisville, Ky.), Sept. 6, 1975, at A1 [hereinafter Injuries, Arrests].
58. See id.
59. See id.
60. See id.
61. See id.
62. See Paul Bulleit, Boy, 13, Goes from Watcher to Victim, COURIER-J. & TIMES (Louisville, Ky.), Sept. 7, 1975, at B1.
63. See Injuries, Arrests, supra note 53.
64. See id.
65. See id.
66. See, e.g., Everett A. Hayes, Letter to the Editor, COURIER-J. (Louisville, Ky.), Aug. 23, 1975, at A12.
67. See, e.g., Charles B. Fort, Concerned Parents, Inc., Letter to the Editor, COURIER-J. (Louisville, Ky.), Aug. 23, 1975, at A12.
68. See Garland D. Haynes, Letter to the Editor, COURIER-J. (Louisville, Ky.), Aug. 23, 1975, at A12.
69. See Keith Runyon, Paper Urges Legal Antibusing Action, COURIER-J. (Louisville, Ky.), Sept. 11, 1975, at A18.
70. See id.
71. See Charles R. Babcock, Antibusing Calls Flood White House 'Hot-line,' COURIER-J. (Louisville, Ky.), Sept. 11, 1975, at C3.
72. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2807 (2007) (Breyer, J., dissenting);
73. Hampton v. Jefferson County Bd. of Educ., 72 F. Supp. 2d 753, 765 (W.D. Ky. 1999).
74. In 1984, the middle school and high school plans implemented a zone and satellite system so that most students were able to attend schools based on where they lived. See Timeline, supra note 35. The racial guidelines were also changed; elementary schools required enrollment of 23-43% African American students; middle schools required 22-42%, and high schools 16-36%. Timeline, supra note 35. In addition to the redrafting of school zone boundaries, so-called "magnet" schools were established. See Hampton, 72 F. Supp. 2d at 766. In 1992, Project Renaissance replaced the system of citywide busing, and was designed to give parents a choice of schools in the desegregation efforts. Timeline, supra note 35. Racial guidelines were again changed; elementary schools required 15-50% African American students, middle schools required 16-46%, and high schools required 12-42%. Timeline, supra note 35. In 1996, the district changed the plan once more so that all schools required between 15-50% African American students. See Timeline, supra note 35.
75. See Hampton, 72 F. Supp. 2d at 755, 757 n.5.
76. See id. at 773.
77. See Hampton v. Jefferson County Bd. of Educ., 102 F. Supp. 2d 358, 377 (W.D. Ky. 2000).
78. Id. Additionally, Heyburn exempted magnet schools from the Board's assignment plan, making Central High School exempt from any racial quotas. See Timeline, supra note 35.
79. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2749 (2007);
80. Holly Coryell, Board Lifts Quotas at 4 Magnet Schools, COURIER-J. (Louisville, Ky.), Apr. 3, 2001, at A1.
81. See Holly Coryell, Some Target School Racial Quotas, COURIER-J. (Louisville, Ky.), Mar. 16, 2001, at B1.
82. See Coryell, supra note 74.
83. Parents Involved, 127 S. Ct. at 2749-50 (internal quotation marks omitted).
84. See id.
85. See Chris Kenning, Racial Guideline Suit May Add Voice, COURIER-J. (Louisville, Ky.), Apr. 16, 2003, at A1;
86. Chris Kenning, School Desegregation Plan on Trial, COURIER-J. (Louisville, Ky.), Dec. 8, 2003, at A1.
87. U.S. CONST. amend. XIV, § 1.
88. See McFarland v. Jefferson County Pub. Sch., 330 F. Supp. 2d 834, 861-62 (W.D. Ky. 2004), aff'd, 416 F.3d 513, 514 (6th Cir. 2005), rev'd, Parents Involved, 127 S. Ct. 2738.
89. Parents Involved, 127 S. Ct. at 2749.
90. 530 U.S. 306 (2003). For a more in-depth discussion of Grutter, see infra notes 162-70 and accompanying text.
91. 539 U.S. 244 (2003). For a more in-depth discussion of Gratz, see infra notes 171-74 and accompanying text.
92. Parents Involved, 127 S. Ct. at 2801 (Breyer, J., dissenting).
93. 163 U.S. 537, 550-52 (1896) (holding that a state statute requiring separate accommodations for whites and blacks in railroad compartments was constitutional), overruled by Brown v. Bd. Of Educ (Brown I), 347 U.S. 483 (1954).
94. Brown I, 347 U.S. at 486 n.1, 487.
95. Id. at 495.
96. Brown v. Bd. of Educ. (Brown II), 349 U.S. 294 (1955);
97. Brown I, 347 U.S. at 495-96.
98. Brown II, 349 U.S. at 299.
99. Id. at 301. The Brown cases have been characterized by some as "judicial abdication," in which the Court left the ultimate remedy to be decided by lower courts. See, e.g., Darren Lenard Hutchinson, "Unexplainable on Grounds Other Than Race": The Inversion of Privilege and Subordination in Equal Protection Jurisprudence, 2003 U. ILL. L. REV. 615, 632 (stating that institutional concerns and racial politics led to such abdication);
100. G. Edward White, Chief Justice Marshall, Justice Holmes, and the Discourse of Constitutional Adjudication, 30 WM. & MARY L. REV. 131, 140-41 (1988) (explaining that the problem in Brown I that invited such abdication was not the difficulty of enforcement, but the difficulty in justifying Court intervention in light of southern preferences and the lack of congressional action).
101. 391 U.S. 430 (1968).
102. Id. at 439-40.
103. Id. at 432.
104. See id. at 433.
105. Id. at 441.
106. Id. at 436.
107. See id.
108. Id. at 439.
109. Id. at 440.
110. KEVIN BROWN, RACE, LAW AND EDUCATION IN THE POST-DESEGREGATION ERA 176 (2005).
111. Brown v. Bd. of Educ. (Brown II), 349 U.S. 294, 301 (1955).
112. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 7 (1971).
113. See id.
114. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 311 F. Supp. 265, 269 (W.D.N.C. 1970), vacated, 431 F.2d 138 (4th Cir. 1970), aff'd in part, 402 U.S. 1.
115. See Swann, 402 U.S. at 30, 32.
116. Id. at 15.
117. Id. at 29-30.
118. Id. at 28.
119. Title VI of the Civil Rights Act prohibits discrimination in federally assisted programs, providing that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." Civil Rights Act of 1964, Pub. L. No. 88-352, § 601, 78 Stat. 241, 252 (codified as amended at 42 U.S.C. § 2000d (2000)).
120. BROWN, supra note 101, at 177.
121. Id.
122. Id.
123. 413 U.S. 189 (1973).
124. The case involved the Denver, Colorado, school district, which had never mandated segregation in public education by law. See id. at 191. However, parents and students filing suit claimed that the school district was nevertheless to blame for the current segregation in its public schools. The lack of legal segregation was immaterial. See id. They argued that the school district, by using certain techniques such as manipulating the school attendance zones and selecting school sites while using a neighborhood school policy, had purposefully aimed to create racially segregated schools throughout the district. Accordingly, the petitioners sought a judicial decree ordering the desegregation of the entire school district. See id.
125. Id. at 208.
126. Id. at 205-06.
127. The Court stated that the respondent school board had deliberately aimed at racial segregation in schools that over one-third of the black population attended, which "establishes a prima facie case of intentional segregation in the core city schools" and therefore "[the School Board's] neighborhood school policy is not to be determinative 'simply because it appears to be neutral.'" Id. at 213 (quoting Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 28 (1971)).
128. See id. at 211.
129. See Milliken v. Bradley, 418 U.S. 717, 745 (1974).
130. See id. at 722-23.
131. See id. at 725.
132. See id.
133. Id. at 745.
134. BROWN, supra note 101, at 211. Ref. part cont. in next file
135. 498 U.S. 237 (1991).
136. See Dowell v. Bd. of Educ., 338 F. Supp. 1256, 1273 (W.D. Okla. 1972), aff'd, 465 F.2d 1012 (10th Cir. 1972). After the Board had complied with the 1972 order for five years, they filed a "Motion to Close Case." Dowell, 498 U.S. at 240. The district court consequently terminated its jurisdiction over the desegregation of the school district and issued an "Order Terminating Case," stating that the school board had complied with the decree. Id. at 240-41. In 1985, the respondents of Dowell moved to reopen the case on the grounds that the school system had returned to a state of segregation and was no longer unitary. See id. at 242. The district court ultimately found that the present segregation in the city was the result of "imbalance in residential patterns," "economic pressures," and "voluntary preferences" and therefore not a remnant of de jure segregation warranting a re-opening of the case. See Dowell v. Bd. of Educ., 677 F. Supp. 1503, 1521 (W.D. Okla. 1987). The court of appeals reversed, however, holding that, despite the unitary finding, the Board had the "'affirmative duty... not to take any action that would impede the process of disestablishing the dual system and its effects.'" Dowell v. Bd. of Educ., 890 F.2d 1483, 1504 (10th Cir. 1989) (quoting Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 538 (1979)).
137. See Dowell, 498 U.S. at 248-50. The Court remanded the case to the district court for further factfinding to determine if the decree could be dissolved due to the school's compliance. See id. at 248.
138. 503 U.S. 467 (1992).
139. Id. at 490.
140. See id. at 474.
141. See id.
142. See id. Additionally, the district court found that while the school district had experienced a level of resegregation in recent years, this was due to demographic changes and not any intentional segregation on the part of the school board. Consequently, the racial imbalance in certain schools "was not a vestige of the prior de jure system." Id. at 478. "[The actions of DCSS] achieved maximum practical desegregation from 1969 to 1986. The rapid population shifts in DeKalb County were not caused by any action on the part of the DCSS. These demographic shifts were inevitable as the result of suburbanization...." Id. at 480 (alteration in original) (internal quotation marks omitted). Freeman, coupled with Dowell, serves to establish certain boundaries of desegregation decrees; such decrees must be limited in scope and duration and cannot be used to prevent resegregation that has resulted from private housing choices not attributable to state action.
143. See, e.g., Keyes v. Sch. Dist. No. 1, 413 U.S. 189, 211 (1973).
144. Justice Breyer stated in his dissent in Parents Involved: The opinions cited by the plurality to justify its reliance upon the de jure/de facto distinction only address what remedial measures a school district may be constitutionally required to undertake. As to what is permitted, nothing in our equal protection law suggests that a State may right only those wrongs that it committed. No case of this Court has ever relied upon the de jure/de facto distinction in order to limit what a school district is voluntarily allowed to do. That is what is at issue here. And Swann, McDaniel, Crawford, North Carolina Bd. of Ed., Harris, and Bustop made one thing clear: significant as the difference between de jure and de facto segregation may be to the question of what a school district must do, that distinction is not germane to the question of what a school district may do. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2823-24 (2007) (Breyer, J., dissenting) (citations omitted).
145. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16 (1971).
146. 402 U.S. 43 (1971).
147. Id. at 45.
148. In McDaniel v. Barresi, 402 U.S. 39 (1971), the Supreme Court upheld an integration plan (which required twenty to forty percent black students in schools) that was adopted without a court order, stating that "[t]he Clarke County Board of Education, as part of its affirmative duty to disestablish the dual school system, properly took into account the race of its elementary school children in drawing attendance lines." Id. at 41. In Board of Education v. Harris, 444 U.S. 130 (1979), the Supreme Court recognized that a school district may be required to integrate its faculty pursuant to the Federal Emergency School Aid Act even when segregation is de facto and thus not a violation of the Fourteenth Amendment. Id. at 148-49. In Crawford v. Board of Education, 458 U.S. 527 (1982), the Supreme Court similarly acknowledged that a state constitution may impose a greater duty on school districts to desegregate than does the United States Constitution, requiring integration efforts even in the absence of intentional de jure segregation. Id. at 535-36. Such state constitution requirements were challenged in Bustop, Inc. v. Board of Education, 439 U.S. 1380 (1978), where the Court upheld a California desegregation plan issued under the authority of the California Constitution, stating through Justice Rehnquist: "While I have the gravest doubts that the Supreme Court of California was required by the United States Constitution to take the action that it has taken in this case, I have very little doubt that it was permitted by that Constitution to take such action." Id. at 1383.
149. 438 U.S. 265 (1978).
150. See id. at 276 (opinion of Powell, J.).
151. See id. at 277-78.
152. Id. at 274-75. The Medical School apparently viewed these groups as "Blacks," "Chicanos," "Asians," and "American Indians." Id.
153. The applicants in the special admissions pool were rated by a separate committee, which was comprised primarily of minority members. See id. at 274. The special admissions candidates did not have to meet the minimum G.P.A. cutoff of 2.5 required for regularly admitted students and filled sixteen out of the one hundred spots in the class. See id. at 275. The Supreme Court of California found that the University's program violated the Equal Protection Clause of the Fourteenth Amendment and ordered Bakke's admission to the Medical School. See id. at 280-81.
154. See id. at 320;
155. see also id. at 421 (Stevens, J., concurring in part and dissenting in part). Justice Stevens' opinion was joined by Chief Justice Burger and Justices Stewart and Rehnquist. The Supreme Court also reversed the decision of the California court enjoining the University from any consideration of an applicant's race in future admissions, because, according to Justice Powell, a state "has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin." Id. at 320 (opinion of Powell, J.). This part of the decision, Part V-C, was joined by Justices Brennan, White, Marshall, and Blackmun.
156. See id. at 289-92. In deciding what level of scrutiny to apply, Powell cited Hirabayashi v. United States, 320 U.S. 81, 100 (1943) ("Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality."), and Korematsu v. United States, 323 U.S. 214, 216 (1944) ("[A]ll legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny."). For additional discussion, see Bakke, 438 U.S. at 290-91 (opinion of Powell, J.).
157. Justice Powell particularly aimed his discussion of benign motives at countering the arguments of Justice Brennan, who took the analysis of the program out of a strict scrutiny context altogether, believing that the program could be justified merely by its aim to benefit, as opposed to stigmatize, a particular racial group. See Bakke, 438 U.S. at 359 (Brennan, J., concurring in the judgment in part and dissenting in part) ("[We] conclude that racial classifications designed to further remedial purposes 'must serve important governmental objectives and must be substantially related to achievement of those objectives.'" (quoting Califano v. Webster, 430 U.S. 313, 317 (1977)));
158. see also id. at 373-74 ("The second prong of our test-whether the Davis program stigmatizes any discrete group or individual and whether race is reasonably used in light of the program's objectives-is clearly satisfied by the Davis program."). Justice Powell responded that "it is inappropriate to inquire only whether there is any conceivable basis that might sustain such a classification. Instead, to justify such a classification an important and articulated purpose for its use must be shown." Id. at 361 (opinion of Powell, J.).
159. See id. at 298 (opinion of Powell, J.).
160. See id.
161. See id.
162. See id. at 305.
163. Id. at 307.
164. See id. at 307-08.
165. See id. at 310. The third goal asserted by the University, not addressed here because of its unique applicability to medical schools, was promoting health care services to underserved communities; Powell found no evidence that the program was tailored to this goal. See id.
166. See id. at 311-12.
167. Id. at 315.
168. See id. at 314-15.
169. See id. at 315.
170. Id. at 319-20 (citation omitted).
171. See, e.g., Suhrid S. Gajendragadkar, The Constitutionality of Racial Balancing in Charter Schools, 106 COLUM. L. REV. 144, 174 n.207 (2006);
172. Daniel N. Lipson, Embracing Diversity: The Institutionalization of Affirmative Action as Diversity Management at UC-Berkeley, UT-Austin, and UW-Madison, 32 LAW & SOC. INQUIRY 985, 1010-11 (2007).
173. See Grutter v. Bollinger, 539 U.S. 306, 322 (2003) ("We granted certiorari to resolve the disagreement among the Courts of Appeals on a question of national importance: Whether diversity is a compelling interest that can justify the narrowly tailored use of race in selecting applicants for admission to public universities." (citation omitted));
174. id. at 328 ("Today, we hold that the Law School has a compelling interest in attaining a diverse student body.").
175. See id. at 316. The then-Dean of the Law School, Jeffrey Lehman, also "indicated that critical mass means numbers such that underrepresented minority students do not feel isolated or like spokespersons for their race." Id. at 318-19.
176. Id. at 316 (alteration in original) (internal quotation marks omitted). The policy did not define diversity solely in terms of racial and ethnic status, but did reaffirm the Law School's longstanding commitment to one particular type of diversity, that is, racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers. Id. (internal quotation marks omitted).
177. Id. at 324 (quoting Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 311 (1978) (opinion of Powell, J.)).
178. Id. at 333.
179. Id. at 334 (quoting Bakke, 438 U.S. at 315 (opinion of Powell, J.)). Quotas "impose a fixed number or percentage which must be attained, or which cannot be exceeded," and "insulate the individual from comparison with all other candidates for the available seats." In contrast, "a permissible goal... require[s] only a good-faith effort... to come within a range demarcated by the goal itself," and permits consideration of race as a "plus" factor in any given case while still ensuring that each candidate "compete [s] with all other qualified applicants." Id. at 335 (alterations in original) (citations omitted). The Court stated that "[t]he Law School's goal of attaining a critical mass of underrepresented minority students does not transform its program into a quota." Id. at 335-36.
180. See id. at 334-37.
181. See id. at 333-37.
182. See id. at 339-40.
183. See Ian Ayres & Sydney Foster, Don't Tell, Don't Ask: Narrow Tailoring After Grutter and Gratz, 85 TEX. L. REV. 517, 523, 541 (2007).
184. Gratz v. Bollinger, 539 U.S. 244, 254-55 (2003).
185. See id. at 268.
186. Id. at 270.
187. Id. at 271.
188. See Lisa J. Holmes, Comment, After Grutter: Ensuring Diversity in K-12 Schools, 52 UCLA L. REV. 563, 574-75 (2004). Cases include Eisenberg v. Montgomery County Public School, 197 F.3d 123, 130 (4th Cir. 1999);
189. Tuttle v. Arlington County School Board, 195 F.3d 698, 705 (4th Cir. 1999);
190. and Wessman v. Gittens, 160 F.3d 790, 796 (1st Cir. 1998). See Holmes, supra, at 575-79.
191. See, e.g., Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 426 F.3d 1162, 1177 (9th Cir. 2005), rev'd, 127 S. Ct. 2736 (2007);
192. McFarland v. Jefferson County Pub. Sch., 416 F.3d 513, 514 (6th Cir. 2005), rev'd, Parents Involved, 127 S. Ct. 2738;
193. Comfort v. Lynn Sch. Comm., 418 F.3d 1, 16 (1st Cir. 2005), abrogated by Parents Involved, 127 S. Ct. 2738.
194. The cases on appeal were McFarland v. Jefferson County Public Schools, 416 F.3d 513, and Parents Involved in Community Schools v. Seattle School District, No. 1, 426 F.3d 1162.
195. Grutter v. Bollinger, 539 U.S. 306, 388 (2003) (Kennedy, J., dissenting).
196. Id. at 389 ("[T]he concept of critical mass is a delusion used by the Law School to mask its attempt to make race an automatic factor in most instances and to achieve numerical goals indistinguishable from quotas."). After examining exactly how the admissions policy operated to achieve its "critical mass" and the result of that operation, Justice Kennedy noted that the narrow fluctuation in the percentages of each race admitted per year and the close correlation between the racial breakdown of applicants and admitted students suggested that the Law School did not engage in individual consideration. See id. at 390-91.
197. It seems that Justice Kennedy, then, would not be in complete agreement with Justice Powell's assertion in Bakke that when a program is facially race-neutral, a court will not assume that the university operates it as a cover for the equivalent of a quota and will instead presume good faith on the part of the university. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 318-19 (1978) (opinion of Powell, J.). Instead, Justice Kennedy was concerned with the actual implementation and result of the policy, not its facial neutrality.
198. See infra notes 228-31 and accompanying text.
199. The Seattle School District first implemented its plan in 1998. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2746 (2007). Under this plan, incoming Seattle high school students ranked their high school choices in order of preference and were assigned to their selections based on availability; if a certain high school had been oversubscribed, a series of tiebreakers was employed to determine school assignments. One of those tiebreakers was based on race. See id. at 2747. The Seattle School District enrolled approximately forty-one percent white students, and fifty-nine percent "non-white" students, including African Americans, Asians, Latinos, and Native Americans. See id. at 2746 & n.2. If an oversubscribed school was not within ten percent of the district's racial balance, students who could help the high school achieve the desired racial balance would be assigned to the school, while those who would add to the imbalance would not be assigned to their school of choice. See id. at 2746. Notably, Seattle never operated a legally segregated school system, and its tiebreaker was employed to remedy the effects of identifiable racial housing patterns. See id. The Seattle School District undertook its voluntary busing measures not because of prior suits for Fourteenth Amendment violations, but in order to prevent threatened lawsuits by civil rights groups for ineffective integration efforts. See Cassandra Tate, Busing in Seattle: A Well-intentioned Failure, HISTORY LINK.ORG, Sept. 7, 2002, http://www.historylink.org/essays/ output.cfm?file_id=3939.
200. Parents Involved, 127 S. Ct. at 2749.
201. See Hampton v. Jefferson County Bd. of Educ, 102 F. Supp. 2d 358, 382 (W.D. Ky. 2000).
202. Parents Involved, 127 S. Ct. at 2746.
203. See id. at 2751-54, 2759-60.
204. Roberts stated that "[t]he debate [over the benefits of diversity in schools] is not one we need to resolve... because it is clear that the racial classifications employed by the districts are not narrowly tailored to the goal of achieving the educational and social benefits asserted to flow from racial diversity." Id. at 2755 (plurality opinion).
205. For Seattle, the asserted interest was "to reduce racial concentration in schools and to ensure that racially concentrated housing patterns [did] not prevent nonwhite students from having access to the most desirable schools," id. at 2755 (plurality opinion), and for Louisville, the asserted interest was "to educate its students 'in a racially integrated environment.'" Id. Chief Justice Roberts found, however, that neither school district made it clear how its plan's strict racial percentages were aimed at reaching the benefits of this type of diversity. See id. at 2756.
206. Id. at 2752 (majority opinion) (citing Freeman v. Pitts, 503 U.S. 467, 494 (1992)). The school districts here did not claim either interest; Seattle had never operated segregated schools, and Louisville was found to operate a unitary system. See id.
207. Id. at 2753. The Court delineated the limits of Grutter, explaining that "in light of 'the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition,'" and therefore Grutter's diversity did not reach the elementary and secondary assignment plans at issue. Id. at 2754 (quoting Grutter v. Bollinger, 539 U.S. 306, 329 (2003)). Additionally, Grutter's diversity interest was one of "'highly individualized, holistic review,'" and not an effort to achieve pure racial balancing. Id. at 2764 (plurality opinion) (quoting Grutter, 539 U.S. at 337). Therefore, neither Seattle nor Louisville asserted a previously judicially recognized compelling interest in this case.
208. Id. at 2755 (plurality opinion). Accepting racial balancing as a compelling state interest would justify the imposition of racial proportionality throughout American society, contrary to [the Court's] repeated recognition that "[a]t the heart of the Constitution's guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class." Id. at 2757 (alteration in original) (quoting Miller v. Johnson, 515 U.S. 900, 911 (1995)).
209. See Parents Involved, 127 S. Ct. at 2791 (Kennedy, J., concurring in part and concurring in the judgment).
210. The latter suggestion seems to be supported by Chief Justice Roberts' statements that "the plans here are not tailored to achieving a degree of diversity necessary to realize the asserted educational benefits; instead the plans are tailored... to 'the goal established by the school board of attaining a level of diversity within the schools that approximates the district's overall
211. What School Board Members Are Saying, COURIER- JOURNAL.COM, June 29, 2007, http://www.courier-journal.com/ apps/pbcs.dll/article?AID=/20070629/NEWS01/70629006/0/NEWS01.html.
212. Parents Involved, 127 S. Ct. at 2789 (Kennedy, J., concurring in part and concurring in the judgment).
213. Id. at 2791.
214. Id. at 2820-21 (Breyer, J., dissenting).
215. See id. at 2792-93 (Kennedy, J., concurring in part and concurring in the judgment) ("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.").
216. See id. at 2759 (majority opinion). In Seattle, [i]n over one-third of the assignments affected by the racial tiebreaker, then, the use of race in the end made no difference, and the district could identify only 52 students who were ultimately affected adversely by the racial tiebreaker in that it resulted in assignment to a school they had not listed as a preference and to which they would not otherwise have been assigned..... Similarly, Jefferson County's use of racial classifications has only a minimal effect on the assignment of students.... Jefferson County estimates that the racial guidelines account for only 3 percent of assignments. Id. at 2759-60.
217. See id. at 2760.
218. Id. (quoting Grutter v. Bollinger, 539 U.S. 306, 339 (2003)).
219. See id.
220. Id. at 2792 (Kennedy, J., concurring in part and concurring in the judgment).
221. See id.
222. See id. at 2746 (majority opinion).
223. See id. at 2742 (citing Freeman v. Pitts, 503 U.S. 467, 494 (1992)). Additionally, Justice Kennedy stated that "[t]he Court has allowed school districts to remedy their prior de jure segregation by classifying individual students based on their race." Id. at 2796 (Kennedy, J., concurring in part and concurring in the judgment) (citing N.C. State Bd. of Educ. v. Swann, 402 U.S. 43, 45-46 (1971)).
224. See id. at 2742 (majority opinion) (citing Grutter v. Bollinger, 539 U.S. 306, 328 (2003)).
225. Justice Breyer's dissent stated: In light of this Court's conclusions in Grutter, the "compelling" nature of these interests in the context of primary and secondary public education follows here a fortiori. Primary and secondary schools are where the education of this Nation's children begins, where each of us begins to absorb those values we carry with us to the end of our days. As Justice Marshall said, "unless our children begin to learn together, there is little hope that our people will ever learn to live together." Id. at 2822 (Breyer, J., dissenting) (quoting Milliken v. Bradley, 418 U.S. 717, 783 (1974) (Marshall, J., dissenting)). Justice Breyer was joined by Justices Ginsberg, Souter, and Stevens in his dissent.
226. See id. at 2797 (Kennedy, J., concurring in part and concurring in the judgment).
227. Id. at 2820-21 (Breyer, J., dissenting).
228. Id. at 2821 (citing Maureen T. Hallinan, Diversity Effects on Student Outcomes: Social Science Evidence, 59 OHIO ST. L.J. 733, 741-42 (1998)).
229. Parents Involved, 127 S. Ct. at 2823 (Breyer, J., dissenting).
230. Id. at 2754 (majority opinion).
231. See id.
232. Id. (quoting Grutter v. Bollinger, 539 U.S. 306, 329 (2003)).
233. See id. at 2753.
234. Id.
235. Id. at 2753-54 (quoting Gratz v. Bollinger, 539 U.S. 244, 276, 280 (2003) (O'Connor, J., concurring)).
236. Even though the majority realized that the school boards did not assert the same compelling interest at issue in Grutter, narrow tailoring still requires Grutter's component of individualization. Because individualized consideration for applicants in a non-merit assignment system is inherently different than consideration in a merit based system, the inquiry for K-12 education focuses more on the decisiveness of race in the assignment process-race cannot be used in a mechanical way that is contrary to the concept of individualized review. See id. at 2753-54.
237. Justice Kennedy stated in his concurrence that "[i]f the dissent were to say that college cases are simply not applicable to public school systems in kindergarten through high school, this would seem to me wrong," and deemed Grutter's opinion "controlling." Id. at 2794 (Kennedy, J., concurring in part and concurring in the judgment).
238. Id. at 2760 (majority opinion) (citing Grutter v. Bollinger, 539 U.S. 306, 320 (2003)).
239. Id. (quoting Grutter, 539 U.S. at 339).
240. Grutter, 539 U.S. at 342.
241. The only mention of remedies limited in time was found in Justice Kennedy's concurrence, which did not invoke Grutter. [A]llocation of benefits and burdens through individual racial classifications was found sometimes permissible in the context of remedies for de jure wrong. Where there has been de jure segregation, there is a cognizable legal wrong, and the courts and legislatures have broad power to remedy it. The remedy, though, was limited in time and limited to the wrong. Parents Involved, 127 S. Ct. at 2796 (Kennedy, J., concurring in part and concurring in the judgment).
242. See Grutter, 539 U.S. at 342.
243. Id.
244. The argument has been made that a sunset provision in a K-12 system would be hard to imagine because segregation in that area of education is due largely to housing patterns-which is not the same type of problem facing university admissions-and cannot be averted by the temporary use of race in the same way the problems in university admissions can be. See Christopher J. Sullivan, Note, Grutter Effects: Implications for "Re- Desegregation" of Public Education in Georgia?, 22 GA. ST. U. L. REV. 1031, 1045-46 (2006).
245. It has been suggested that Grutter and Gratz revealed the Court's adoption of a "Don't Tell, Don't Ask" approach to individualized consideration: if universities don't tell how much weight they give to race by quantifying racial preferences, then courts won't ask probing questions about whether the preferences are differentiated and not excessive. If, however, universities do tell, then courts will conduct a searching review of the admissions program, examining whether preferences are in fact differentiated and not excessive. Ayres & Foster, supra note 170, at 559. However, Justice Kennedy's concurrence makes it apparent that "Don't Tell, Don't Ask" is no longer an option, see supra notes 198-204, nor was it an option for Kennedy under Grutter, in which his dissent reflected the need for a searching review of admissions statistics to discover the effects of policy designed to reach a "critical mass" of minority students. See Grutter, 539 U.S. at 389-91 (Kennedy, J., dissenting).
246. Parents Involved, 127 S. Ct. at 2789 (Kennedy, J., concurring in part and concurring in the judgment).
247. Id. at 2789-90 (citation omitted).
248. Id. at 2790-91.
249. See id. at 2792.
250. See NAT'L GOVERNORS ASS'N CTR. FOR BEST PRACTICES, ISSUE BRIEF: INTEGRATING SCHOOLS INTO HEALTHY COMMUNITY DESIGN 3-4 (2007), http://www.nga.org/Files/pdf/0705SCHOOLSHEALTHYDESIGN.PDF.
251. See NAACP LEGAL DEF. & EDUC. FUND, INC., STILL LOOKING TO THE FUTURE: VOLUNTARY K-12 SCHOOL INTEGRATION 36 (2008), http://www.naacpldf.org/content/pdf/voluntary/ Still_Looking_to_the_Future_Voluntary_K-12_School_Integration;
252. See id.
253. See id. at 36-37.
254. Pub. L. No. 107-110, 115 Stat. 1425 (2002) (codified in scattered sections of 20 U.S.C.).
255. See NAACP LEGAL DEF., supra note 234, at 37.
256. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2793 (2007) (Kennedy, J., concurring in part and concurring in the judgment).
257. See NAACP LEGAL DEF., supra note 234, at 38.
258. See Jonathan D. Glater & Alan Finder, Diversity Plans Based on Income Leave Some Schools Segregated, N.Y. TIMES, July 15, 2007, at A24.
259. See RICHARD D. KAHLENBERG, CENTURY FOUND., ISSUE BRIEF: A NEW WAY ON SCHOOL INTEGRATION 7 (2006), http://www.tcf.org/publications/ education/school integration.pdf.
260. See Glater & Finder, supra note 241.
261. See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973).
262. See Glater & Finder, supra note 241. It is important to note, however, that some less rigorous programs have met with less success. For example, San Francisco uses an economic integration system, but does set in place a minimum or maximum percentage of low-income students for each school, and allows student choice in school assignment and transfers. Additionally, San Francisco only uses economic status as a tiebreaker, and therefore undersubscribed schools are not affected by the plan. See KAHLENBERG, supra note 242, at 9.
263. See KAHLENBERG, supra note 242, at 5.
264. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2753-54 (2007).
265. Id. at 2754 (quoting Metro Broad., Inc. v. FCC, 497 U.S. 547, 610 (1990) (O'Connor, J., dissenting)).
266. Id. (quoting Grutter v. Bollinger, 539 U.S. 306, 329 (2003)).
267. See id.
268. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 315 (1978) (opinion of Powell, J.). In Gratz, the Court stated, "The admissions program Justice Powell described, however, did not contemplate that any single characteristic automatically ensured a specific and identifiable contribution to a university's diversity." Gratz v. Bollinger, 539 U.S. 244, 271 (2003).
269. Sean A. Pager, Antisubordination of Whom? What India's Answer Tells Us About the Meaning of Equality in Affirmative Action, 41 U.C. DAVIS L. REV. 289, 303 (2007).
270. See id.
271. See id. at 303-12.
272. Parents Involved, 127 S. Ct. at 2755-56 (plurality opinion).
273. See id. at 2758-59. [The school districts] offer no definition of the interest [in diversity] that suggests it differs from racial balance. ("Q. What's your understanding of when a school suffers from racial isolation? A. I don't have a definition for that"); ("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"); ("Q. How does the Jefferson County School Board define diversity...?" "A. Well, we want to have the schools that make up the percentage of students of the population").
274. Id. at 2759 (plurality opinion) (citations omitted).
275. Grutterv. Bollinger, 539 U.S. 306, 390-91 (2003) (Kennedy, J., dissenting).
276. Id. at 391 (quoting Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 289 (1978) (opinion of Powell, J.)).
277. See Bakke, 438 U.S. at 298 (opinion of Powell, J.).
278. Parents Involved, 127 S. Ct. at 2764 (plurality opinion). While Justice Kennedy did not join in this part of the opinion, the historical precedent of the failure to accept the defense of benign motives has not been overturned and is thus still good law.
279. Id. at 2765 (quoting Metro Broad., Inc. v. FCC, 497 U.S. 547, 609-10 (1990) (O'Connor, J., dissenting)).
280. See GARY ORFIELD & CHUNGMEI LEE, THE CIVIL RIGHTS PROJECT, HARVARD UNIV., Brown AT 50: KING's DREAM OR PLESSY's NIGHTMARE? 2 (2004), available at http://www.civilrightsprqject.ucla.edu/research/reseg04/brown50.pdf.
281. Commentaries printed in the Reader's Forum of the Courier-Journal included numerous remarks on the subject. See, e.g., Allison Koch, Letter to the Editor, Courier-J. (Louisville, Ky.), Aug. 19, 2007, at H2 ("I experienced Louisville public schools first-hand and appreciate the number of lessons I learned outside the classroom about acceptance and diversity.... [My high school] taught me how to be careful and conscious without judging others. Interacting with students and teachers of different backgrounds than I had gave me knowledge that I could not have learned otherwise. Public schooling helped me realize I don't need to fear what is different, but rather embrace it.");
282. Jodie Zoeller, Letter to the Editor, COURIER-J. (Louisville, Ky.), Aug. 19, 2007, at H2 ("I implore Jefferson County's new superintendent and school board to continue their efforts to integrate our school system.... The cultural and real-world relevance of an integrated education will stick with our children much longer than Shakespeare and Euclid.").
283. Interestingly, in July 2007, the attorney who litigated the case against the School Board filed a motion imploring Judge John Heyburn of the Western District of Kentucky to hold the officers of the Jefferson County School Board in contempt, claiming that the Board's 2007-2008 assignment plan violated the Supreme Court's summer ruling. The motion was immediately denied by Heyburn, who stated that the School Board "need not respond to such an outrageous motion, couched in such unprofessional language." Chris Kenning, Motion Against JCPS Rejected, COURIER-J. (Louisville, Ky.), July 28, 2007, at Al.
284. Chris Kenning, Schools' Course Since Race Ruling OK'd, COURIER-J. (Louisville, Ky.), Aug. 1, 2007, at Al.
285. See Quicktime Video: U.S. Supreme Court Ruling: What Does It Mean for JCPS? (Jefferson County Public Schools 2007) [hereinafter What Does It Mean for JCPS?] (on file with author).
286. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2822 (2007) (Breyer, J., dissenting) ("Primary and secondary schools are where the education of this Nation's children begins, where each of us begins to absorb those values we carry with us to the end of our days. As Justice Marshall said, 'unless our children begin to learn together, there is little hope that our people will ever learn to live together."' (quoting Milliken v. Bradley, 418 U.S. 717, 783 (1974) (Marshall, J., dissenting))).
287. See id. at 2797 (Kennedy, J., concurring in part and concurring in the judgment) ("This Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children. A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue. Likewise, a district may consider it a compelling interest to achieve a diverse student population.").
288. See What Does It Mean for JCPS?, supra note 266.
289. Sheldon H. Berman, JCPS Needs Your Help This Year, COURIER-J. (Louisville, Ky.), Aug. 13, 2007, at A8.
290. Louisville Mayor Jerry Abramson believed that "diversity has helped make Jefferson County one of the top public school systems in the country." Local Reactions to Desegregation, COURIER-JOURNAL. COM, Jan. 29, 2008, http://www.courierjournal.com/apps/pbcs.dll/ article?AID=/20080129/NEWS0105/80129001/0/NEWS01.
291. See Antoinette Konz & Chris Kenning, Income, Race, Education Criteria for Assignments, COURIER-J. (Louisville, Ky.), Jan. 29, 2008, at Al.
292. See id. "According to the district, the average household income among school families is about $41,000; the average education level is a high-school diploma with some college; and the district's minority enrollment is 48 percent." Id.
293. See id. The proposal offers two alternatives for grouping elementary schools in student assignments. The first would be based on current elementary clusters, which are noncontiguous. In the "'Non-Contiguous Boundary Scenario,' the elementary clusters would be similar to how they are now, with minor changes. There would be nine clusters, with five to 13 schools each. About 1,700 students would have to change schools." Id. The second would be based on geographic areas, with clustered schools bordering each other. "In the 'Contiguous Boundary Scenario,' current clusters of elementary schools would be rearranged so that schools in the same cluster would all touch each other. There would be seven clusters of 10 to 14 schools each. About 3,500 students would have to change schools." Id.
294. Id.
295. Id. Nevertheless, the lawyer who prosecuted the case against the board disagrees, stating, "On the surface, without seeing a detailed review of the JCPS proposed plan, this new student assignment seems to be unconstitutional," and "I urge JCPS to immediately submit this to Judge Heyburn for his review to avoid costly litigation." Id.
296. Louisville Superintendent Berman sought the help of Gary Orfield (director of the University of California at Los Angeles's Civil Rights Project), as well as Ohio State University law professor John Powell (executive director of the Kirwan Institute for the Study of Race and Ethnicity), lawyer Anurima Bhargava (from the NAACP's Legal Defense Fund), and demographer Ron Crouch (from the Kentucky State Data Center). See Chris Kenning, District Consulted National Experts, COURIER-J. (Louisville, Ky.), Jan. 29, 2008, at A8.
297. The School Board and its experts interviewed officials from school districts including Cambridge, Charlotte, Berkeley, and Wake County. See id.
298. See id. The group considered plans including neighborhood assignment, open enrollment, lotteries, and geographical assignments. See id. Superintendant Berman rejected the ideas of a neighborhood assignment plan and a free-choice plan, stating that such assignments would lead not only to racial segregation, but also segregation by income and other socioeconomic factors. See Antoinette Konz, Berman: Simple Plans Would Segregate, COURIER-J. (Louisville, Ky.), Jan. 29, 2008, at A8. The former option would also lead to the reassignment of more than 20,000 students. See id.
299. See Kenning, supra note 277.
300. See, e.g., James v. Valtierra, 402 U.S. 137, 141 (1971).
301. See supra notes 187-97.
302. See Konz & Kenning, supra note 272.
303. See id.
304. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2753-54 (2007).
305. See id. at 2754 ("It is hard to understand how a plan that could allow these results can be viewed as being concerned with achieving enrollment that is 'broadly diverse.'").
306. Id. at 2760.
307. See id.
308. See id. at 2755 (plurality opinion).
309. See id. at 2756.
310. See id. at 2757 ("[W]orking backward to achieve a particular type of racial balance, rather than working forward from some demonstration of the level of diversity that provides the purported benefits, is a fatal flaw under our existing precedent. We have many times over reaffirmed that '[r]acial balance is not to be achieved for its own sake.'" (quoting Freeman v. Pitts, 503 U.S. 467, 494 (1992))).
311. See id. at 2792-93 (Kennedy, J., concurring in part and concurring in the judgment).
312. But see infra notes 300-04 and accompanying text (describing redistricting cases invoking scrutiny questions).
313. See Konz & Kenning, supra note 272. For a more detailed description of the Berkeley plan, see Berkeley Unified Sch. Dist., BUSD Student Assignment Plan/Policy, http://www.berkeley.net/index.php?page=student- assignment-plan (last visited Mar. 13, 2008).
314. See Am. Civil Rights Found, v. Berkeley Unified Sch. Dist., No. RG06292139, slip op. at 16-18 (Cal. Super. Ct. Apr. 6, 2007), available at http://www.nsba.org/cosa2/clips/docs/ACRF_v_BUSD.pdf.
315. In fact, the attorney who challenged the original plan in Parents Involved has challenged this plan as being unconstitutional, as well. See Antoinette Konz, Schools' Interim Policy Opposed, COURIER-J. (Louisville, Ky.), Feb. 6, 2008, at B1.
316. See Antoinette Konz, Temporary Desegregation Plan Approved, COURIER-J. (Louisville, Ky.), Feb. 1, 2008, at Al. "The plan would apply to children entering first grade, students new to the district or who have moved, and those requesting transfers." Id.
317. See id.
318. See William N. Eskridge, Jr., Some Effects of Identity-Based Social Movements on Constitutional Law in the Twentieth Century, 100 MICH. L. REV. 2062, 2283 (2002) ("Doctrinally, the contrast between race-based classifications (strict scrutiny) and sex-based ones (intermediate scrutiny) operates to prefer remedial preferences for women over remedial preferences for racial minorities; easiest to defend would be preferences based upon income, geography, or another factor that would produce diversity along several dimensions without deploying a suspect identity trait.").
319. 509 U.S. 630 (1993).
320. Id. at 643 (quoting Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977)).
321. Id. at 642.
322. 515 U.S. 900, 905 (1995) ("Applying this basic equal protection analysis in the voting rights context, we held that 'redistricting legislation that is so bizarre on its face that it is unexplainable on grounds other than race,... demands the same close scrutiny that we give other state laws that classify citizens by race.'" (alterations in original) (quoting Shaw, 509 U.S. at 644)).
323. 517 U.S. 952, 959 (1996) ("For strict scrutiny to apply, the plaintiffs must prove that other, legitimate districting principles were 'subordinated' to race. By that, we mean that race must be ' the predominant factor motivating the legislature's [redistricting] decision.'" (alterations in original) (quoting Miller, 515 U.S. at 916)).
324. In fact, shortly after-and as a result of-the decision, one school district found itself having to defend against a motion to reopen a First Circuit case, decided before Parents Involved, in which its race-based assignment plan was upheld as constitutional. The case was Comfort v. Lynn School Committee, 418 F.3d 1 (1st Cir. 2005). For an in-depth discussion of the motion to reopen the case, which was ultimately denied, see Posting of Lyle Denniston to SCOTUSblog, http://www.scotusblog.com/wp/uncategorized/ massachusetts-parents-school-plea-denied (July 31, 2007, 10:16 EST).
325. Brown v. Bd. of Educ. (Brown II), 349 U.S. 294, 300-01 (1955).
326. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2768 (2007) (plurality opinion).