Stifling the potential of Grutter V. Bollinger: Parents involved in community schools V. Seattle school district no. 1

Boston University Law Review

Volumn 88, Issue 4, 2008, Pages 937-990

  Adams, Michelle ^a  

^a YESHIVA UNIVERSITY   (United States)

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EID: 57349093530     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (358)

1. 539 U.S. 306 (2003).
2. Id. at 328.
3. Id. (stating that expert reports show that diversity promotes learning and better prepares students for work and for society, and that the military and many businesses stress the importance of exposure to diversity).
4. Claire Andre & Manuel Velasquez, The Common Good, 5 Issues in Ethics 2, 2 (1992).
5. See infra Part LA.
6. 488 U.S. 469 (1989).
7. 515 U.S. 200(1995).
8. See infra Parts I.A-B.
9. 127 S. Ct. 2738 (2007).
10. See infra Parts II.A-C.
11. 418 F.3d 1, 5-6 (1st Cir. 2005)(en banc), cert, denied, 546 U.S. 1061 (2005).
12. 539 U.S. 244 (2003).
13. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 547 U.S. 1177 (2006) (granting certiorari).
14. Comfort v. Lynn Sch. Comm., 546 U.S. 1061, 1061 (2005) (denying certiorari).
15. Bill Mears, Alito Sworn in as Nation's 110th Supreme Court Justice, CNN.COM, Feb. 4, 2006, http://www.cnn.com/2006/POLITICS/01/31/ alito/index.html.
16. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2760 (2007).
17. Id. at 2754.
18. See infra Part III.A.
19. See infra Part III.A.
20. Parents Involved, 127 S. Ct. at 2764 (Roberts, C.J., plurality opinion).
21. Id. at 2820 (Breyer, J., dissenting).
22. Id. at 2763 (Roberts, C.J., plurality opinion)(describing Justice Breyer's dissenting opinion).
23. Id. at 2817 (Breyer, J., dissenting).
24. Id. at 2818.
25. Id. at 2753-54, 2760 (majority opinion).
26. See infra Part III.C.
27. Parents Involved, 127 S. Ct. at 2793 (Kennedy, J., concurring in part and concurring in the judgment).
28. Id. at 2789.
29. The three justices joining Justice Breyer's dissenting opinion clearly agreed with this statement. Id. at 2820-24 (Breyer, J., dissenting).
30. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 311 (1978) (opinion of Powell, J.) (holding that the attainment of a diverse student body was the only interest asserted by the university that survived scrutiny).
31. Parents Involved, 127 S. Ct. at 2797 (Kennedy, J., concurring in part and concurring in the judgment).
32. Justice O'Connor's compelling governmental interest analysis, with its varied focus on diversity's positive externalities wholly exogenous to the university setting, went far beyond Justice Powell's explication of "viewpoint diversity" in Bakke. See Grutter v. Bollinger, 539 U.S. 306, 330-31 (2003) (highlighting the societal and workplace benefits that accrue from educational diversity).
33. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995).
34. See, e.g., Grutter, 539 U.S. at 322.
35. Wygant v. Jackson Bd. of Educ, 476 U.S. 267, 274 (1986) (citing Fullilove v. Klutznick, 448 U.S. 448, 480 (1980)).
36. See, e.g., United States v. Paradise, 480 U.S. 149, 167 (1987).
37. Id. at 185-86.
38. Fullilove, 448 U.S. at 491-92.
39. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 271-72 (1978) (opinion of Powell, J.).
40. The plurality opinion in Bakke is famously inscrutable. Four Justices held that the University of California at Davis Medical School's special admissions program did not violate equal protection because it met the requirements of intermediate scrutiny. Id. at 369 (Brennan, J., concurring in the judgment in part and dissenting in part). Four other Justices held that the Medical School's special admissions program violated Title VI, and thus did not reach the question of whether the program was also a violation of the Equal Protection Clause. Id. at 417-21 (Stevens, J., concurring in the judgment in part and dissenting in part). Justice Powell agreed that the special admissions program was illegal, supplying the fifth vote for that view. Id. at 320 (opinion of Powell, J.). However, Justice Powell also ruled that the goal of achieving a diverse student body is sufficiently compelling to justify the consideration of race in admissions, and that the decision below enjoining the Medical School "from according any consideration to race in its admissions process must be reversed." Id. at 272. Thus, there were five votes for the proposition that Alan Bakke must be admitted to the Medical School. There were also five votes for the proposition that race could play some role in the admissions process. However, no other Justice joined Justice Powell's opinion, which discussed the importance of diversity in higher education and elaborated upon what role race could play in the admissions process. Id. at 287-320.
41. See, e.g., Wessmann v. Gittens, 160 F.3d 790, 794-800 (1st Cir. 1998) (using Justice Powell's decision to frame the court's analysis in rejecting the constitutionality of the school's program); Hopwood v. Texas, 78 F.3d 932, 942 (5th Cir. 1996) ("Justice Powell's opinion has appeared to represent the 'swing vote,' and though, in significant part, it was joined by no other Justice, it has played a prominent role in subsequent debates concerning the impact of Bakke").
42. 515 U.S. 200, 202(1995).
43. 497 U.S. 547 (1990).
44. Id. at 552.
45. In Adarand, the central issue was what level of judicial scrutiny should apply to the use of racial preferences in federal contracting programs. Adarand, 515 U.S. at 224 (holding that any person, of whatever race, has the right to demand - subject to the most strict judicial scrutiny - that a governmental actor subject to the Constitution justify the racial classification subjecting that person to unequal treatment). In ruling that strict scrutiny ought to apply, the Court overturned Metro Broadcasting to the extent that it "adopt[ed] intermediate scrutiny as the standard of review for congressionally mandated 'benign' racial classifications...." Id. at 226. Adarand's holding cast doubt on the viability of a non-remedial rationale because Metro Broadcasting had applied intermediate scrutiny to uphold the use of race to ensure "programming diversity" among FCC broadcast licensees. Metro Broad., 497 U.S. at 566. More specifically, Metro Broadcasting ruled that "the interest in enhancing broadcast diversity is, at the very least, an important governmental objective," similar to the "viewpoint diversity" concept the Court identified as central to Justice Powell's opinion in Bakke. Id. at 567-68. Given Adarand's observation that Metro Broadcasting had taken a "surprising turn" in relation to the Court's previous equal protection doctrine, one possibility was that Metro Broadcasting had been overruled in all respects. See Adarand, 515 U.S. at 225.
46. See, e.g., Hopwood v. Texas, 236 F.3d 256, 274-75 (5th Cir. 2000).
47. See, e.g., Builders Ass'n of Greater Chicago v. County of Cook, 256 F.3d 642, 644 (7th Cir. 2001) ("Whether nonremedial justifications for 'reverse discrimination' by a public body are ever possible is unsettled."); Wittmer v. Peters, 87 F.3d 916, 918 (7th Cir. 1996) (stating that the question remains open in the Supreme Court as to whether any rationale other than rectifying past discrimination is permissible). On the other hand, Adarand said nothing whatsoever about Bakke. Adarand clearly introduced a problem, however, and Justice Powell's opinion in Bakke did not command a majority of the Court. See supra note 40.
48. Grutter v. Bollinger, 539 U.S. 306, 338-40 (2003).
49. Concrete Works of Colo. v. City & County of Denver, 540 U.S. 1027, 1034-35 (2003) (Scalia, J., dissenting from denial of certiorari) (citing Grutter, 539 U.S. 306, 343) (arguing that racial classifications are inherently "suspect" and require more than good faith assurances).
50. Grutter, 539 U.S. at 306.
51. Id. at 334.
52. Id. at 328 ("The Law School's educational judgment that such diversity is essential to its educational mission is one to which we defer. The Law School's assessment that diversity will, in fact, yield educational benefits is substantiated by respondents and their amici").
53. Id. at 343.
54. Id. at 329.
55. Richmond v. J.A. Croson Co., 488 U.S. 469, 492 (1989).
56. Id. at 476-511.
57. Harold Lewis, Jr. & Elizabeth Norman, Employment Discrimination Law and Practice 384 (2d ed. 2004) (explaining that under the Croson standard, most "equal protection challenges to current plans have succeeded").
58. See Neal Kumar Katyal, The Promise and Precondition of Educational Autonomy, 31 Hastings Const. L.Q. 557, 559 (2003) (defining academic autonomy as the ability of "the university itself, to make educational judgments for the sake of its students").
59. Grutter, 539 U.S. at 329.
60. See, e.g., J. Peter Byrne, The Threat to Constitutional Academic Freedom, 31 J.C. & U.L. 79, 116-17 (2004) ("The logic of Justice O'Connor's opinion for the Court required that great weight be placed upon institutional academic freedom to make the case that student body racial diversity amounts to a compelling interest.").
61. Paul Horwitz, Grutter's First Amendment, 46 B.C. L. Rev. 461, 567 (2005).
62. Id. at 496.
63. Katyal, supra note 58, at 571.
64. See Luis Fuentes-Rohwer & Guy-Uriel E. Charles, In Defense of Deference, 21 Const. Comment. 133, 136(2004).
65. As J. Peter Byrne suggests: The Court also apparently made an independent judgment that diversity in higher education was important. It embraced the views expressed in amicus curiae briefs by business leaders and military leaders that diversity is important in business and military command as well, and also stressed the general social benefits from the educational pathways to power and success being 'visibly open' to people of all races. Byrne, supra note 60, at 117.
66. Horwitz, supra note 61, at 569.
67. Grutter v. Bollinger, 539 U.S. 306, 328 (2003).
68. Andre & Velasquez, supra note 4, at 2. Of course, this definition may be overly facile; at least one scholar has suggested that the "common good is an attractive idea, but a notoriously difficult one." Bill Jordan, The Common Good: Citizenship, Morality and Self-Interest 1 (1989). This is particularly true given the concept's long and complicated provenance, and because "any system of voluntary cooperation between self-interested individuals and the coordination of their individual interests for the common good is vulnerable to the charge of authoritarianism." Kevin P. Quinn, Sandel's Communitarianism and Public Deliberations Over Health Care Policy, 85 Geo. L.J. 2161, 2180 (1997).
69. Jed Rubenfeld, Affirmative Action, 107 Yale L.J. 427, 437 (1997).
70. Id. at 438. Rubenfeld refers to this test as the "cost-benefit justificatory test." Id.
71. Bruce Douglass, The Common Good and the Public Interest, 8 Pol. Theory 103, 112 (1980).
72. Id. at 110.
73. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 313 (1978) (opinion of Powell, J.) (internal quotation marks omitted).
74. Id. at 312.
75. Id. at 316.
76. Grutter v. Bollinger, 539 U.S. 306, 308 (2003).
77. Id.
78. Id. (asserting that "classroom discussion is livelier, more spirited, and simply more enlightening and interesting" when the students have "the greatest possible variety of backgrounds").
79. Id. at 333 ("Just as growing up in a particular region or having particular professional experiences is likely to affect an individual's views, so too is one's own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters.").
80. Id. at 330.
81. Id.
82. Id.
83. Id.
84. Id. at 331 (citing Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954)).
85. Id. (emphasis added).
86. Id.
87. Id. at 333. The strongest argument in support of this proposition is the time limit she appears to place on affirmative action plans: "[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." Id. at 343. The twenty-five-year sunset is consistent with a compensatory remedy; time limitations suggest a period after which the intended beneficiaries will no longer require the particular benefit. See, e.g., Kevin R. Johnson, The Last Twenty Five Years of Affirmative Action?, 21 Const. Comment. 171, 173 (2004) ("Remedial-based affirmative action, in contrast, would not be necessary after the impacts of an institution's discrimination had been remedied.")- Justice O'Connor's time-limiting statement is admittedly paradoxical. See Christopher J. Schmidt, Caught in a Paradox: Problems with Grafter's Expectation That Race-Conscious Admissions Programs Will End in Twenty-Five Years, 24 N. III. U. L. Rev. 753, 755 (2004). But there are at least two responses to this line of argument, undercutting the remedial understanding. First, because the discussion of the time limitation is not necessary to the holding, it is dicta and therefore has "inspirational - but not precedential -effect." See Michael Abramowicz & Maxwell Stearns, Defining Dicta, 57 Stan. L. Rev. 953, 1093 (2005) (arguing "there is a strong argument that the no-later-than-2028 restriction is not based on the facts of the case and counts as dicta"). Thus, the statement should be viewed as a wish or exhortation, rather than as consistent with a compensatory or remedial analytical approach. Second, one might view the twenty-five-year "limitation" as completely consistent with a forward-looking, non-compensatory, integrationist interpretation of Grutter. Imagine, for instance, that two towns are attempting to merge into one large metropolitan area. Such a merger would require the restructuring of city government and elimination of duplicative functions. But at some point, a new, unified town would emerge. So, too, one might view the twenty-five-year period after which Justice O'Connor expects that racial preferences would no longer be necessary. On this view, the twenty-five-year period represents an (admittedly optimistic) estimation of the time it would take for at least certain sectors of our society to integrate successfully.
88. Richmond v. J.A. Croson Co., 488 U.S. 469, 505-06 (1989). Indeed, at least one commentator argued that Grutter allowed governmental actors to remedy societal discrimination, essentially overturning the remedial line of affirmative action cases sub silentio. See Goodwin Liu, Brown, Bollinger, and Beyond, Al How. L.J. 705, 759-63 (2004).
89. Grutter, 539 U.S. at 332.
90. Id. ("In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.").
91. Id.
92. Id.
93. Id. at 383 (Rehnquist, J., dissenting) ("But the correlation between the percentage of the Law School's pool of applicants who are members of the three minority groups and the percentage of the admitted applicants who are members of these same groups is far too precise to be dismissed as merely the result of the school paying 'some attention to [the] numbers....' [F]rom 1995 through 2000 the percentage of admitted applicants who were members of these minority groups closely tracked the percentage of individuals in the school's applicant pool who were from the same groups.").
94. Id. at 339 (majority opinion).
95. Ian Ayres & Sydney Foster, Don't Tell, Don't Ask: Narrow Tailoring After Grutter and Gratz, 85 Tex. L. Rev. 517, 522 (2007).
96. Grutter, 539 U.S. at 339.
97. Id. at 341.
98. Id.
99. Id.
100. Id. at 337.
101. Id. at 389 (Kennedy, J., dissenting).
102. Ayres & Foster, supra note 95, at 559, 582 (arguing that because the Law School's admissions plan featured individualized consideration, the Court simply did not probe the weight given to racial preferences in the admissions scheme, and that "the affirmative action program the Supreme Court upheld in Grutter appears to have granted larger racial preferences than the program the Court struck down in Gratz").
103. 539 U.S. 244 (2003).
104. Id. at 253-55.
105. Id. at 270.
106. Id.
107. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 319 (1978) (opinion of Powell, J.).
108. 546 U.S. 1061 (2005) (denying certiorari).
109. Comfort v. Lynn Sch. Comm., 418 F.3d 1, 5 (1st Cir. 2005)(en banc), cert, denied, 546 U.S. 1061(2005).
110. Id. at 7.
111. Id.
112. Id. at 6.
113. Id.
114. Brown v. Bd. of Educ, 347 U.S. 483 (1954); see generally Risa Goluboff, The Lost Promise of Civil Rights (2007) (discussing the civil rights movement's failure to address African-American workers' economic inequality).
115. Brief for NAACP Legal Defense and Education Fund, Inc. as Amicus Curiae Supporting Respondents, Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738 (2007) (Nos. 05-908 and 05-915).
116. 426 F.3d 1162 (9th Cir. 2005), rev'd, 127 S. Ct. 2738 (2007).
117. 330 F. Supp. 2d 834 (W.D. Ky. 2004), aff'd, 416 F.3d 513 (6th Cir. 2005), rev'd, 127 S. Ct. 2738 (2007). The Sixth Circuit's per curiam opinion adopted the district court's reasoning in its entirety. McFarland, 416 F.3d at 513. Consequently, I will refer to the McFarland court's reasoning as that of the Sixth Circuit.
118. Parents Involved, 426 F.3d at 1168-69.
119. Id. at 1174.
120. Id. at 1169.
121. Id.
122. Id.
123. Id. at 1169-70 (defining "racially unbalanced" as when "the racial make up of its student body differs by more than 15 percent from the racial make up of the students of the Seattle public schools as a whole").
124. Id. The racial breakdown of Seattle public school enrollment was approximately forty percent white and sixty percent nonwhite. Id. at 1166.
125. Id. at 1170. During the 2001-2002 school year, the race-based tiebreaker operated at three out of the ten Seattle public high schools. Id. There were two other tiebreakers under the "open choice" plan. "In the third tiebreaker, students are admitted according to distance from the student's home to the high school." Id. at 1171. "In the fourth tiebreaker, a lottery is used to allocate the remaining seats." Id.
126. McFarland v. Jefferson County Pub. Sen., 330 F. Supp. 2d 834, 841-42 (W.D. Ky. 2004), aff'd, 416 F.3d 513 (6th Cir. 2005), rev'd, 127 S. Ct. 2738 (2007). Jefferson County operates the "public school system in metropolitan Louisville, Kentucky." Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2749 (2007).
127. Seattle never operated "legally separate schools for students of different races - nor has it ever been subject to court-ordered desegregation." Parents Involved, 127 S. Ct. at 2747. But see id. at 2810 (Breyer, J., dissenting) (describing the history of racial segregation in Seattle public schools dating back to the end of World War II and arguing that a "court finding of de jure segregation cannot be the crucial variable").
128. Id. at 2749 (majority opinion).
129. Id.
130. Id.
131. McFarland, 330 F. Supp. 2d at 842.
132. Id.
133. Those factors included residence, school capacity, popularity, random assignment and student choice. Id.
134. Id.
135. Id.
136. Id.
137. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 426 F.3d 1162, 1175 (9th Cir. 2005), rev'd, 127 S. Ct. 2738 (2007); McFarland, 330 F. Supp. 2d at 853.
138. See Parents Involved, 426 F.3d at 1180; McFarland, 330 F. Supp. 2d at 856.
139. Parents Involved, 426 F.3d at 1177 (citing Erica Frankenberg et al., A Multiracial Society with Segregated Schools: Are We Losing the Dream? 11 (2003)).
140. See, e.g., McFarland, 330 F. Supp. 2d at 853 ("[0]ne of Defendant's experts testified that racial integration benefits Black students substantially in terms of academic achievement. The Court cannot be certain to what extent the policy of an integrated school system has contributed to these successes. Opinions surely vary on this issue.").
141. Grutter v. Bollinger, 539 U.S. 306, 330 (2003).
142. While the benefits of integration at various educational levels overlap, they are not identical. As James E. Ryan has suggested, "[c]olleges and graduate schools on the one hand, and public schools on the other, are not attempting to achieve exactly the same goals when using race in selecting students, and the correct application of strict scrutiny requires careful attention to these differences." James E. Ryan, Voluntary Integration: Asking the Right Questions, 67 Ohio St. L.J. 327, 333 (2006). Indeed, both the Parents Involved court and the McFarland court emphasized that racial integration at the K-12 level had distinct benefits. Both Parents Involved and McFarland ruled that the school districts met the compelling interest requirement both because of the Grutter analogy and because of the benefits of integrated schools that are unique to the K-12 setting. Parents Involved, 426 F.3d at 1177; McFarland, 330 F. Supp. 2d at 854.
143. Parents Involved, 426 F.3d at 1173-77.
144. Id. at 1174.
145. Grutter, 539 U.S. at 330.
146. Id.
147. Parents Involved, 426 F.3d at 1175.
148. Id.
149. Id. The court also accepted evidence suggesting a desegregated education "opens opportunity networks" and is correlated with cross-racial friendships and students' propensity to live in integrated communities as adults. Id.
150. See supra Part LB.
151. Parents Involved, 426 F.3d at 1175.
152. Id. at 1177.
153. McFarland v. Jefferson County Pub. Sch., 330 F. Supp. 2d 834, 852-53 (W.D. Ky. 2004)(quoting Grutter v. Bollinger, 539 U.S. 306, 331 (2003)), aff'd, 416 F.3d 513 (6th Cir. 2005), rev'd, 127 S. Ct. 2738 (2007).
154. Id. at 837 (holding the compelling interest requirement was met because of similarity to Grutter and because "the Board has described other compelling interests and benefits of integrated schools, such as improved student education and community support for public schools, that were not relevant in the law school context but are relevant to public elementary and secondary schools").
155. See Grutter v. Bollinger, 539 U.S. 306, 328, 334 (2003).
156. McFarland, 330 F. Supp. 2d at 850 n.30.
157. Id. The Court has emphasized the importance of local control in other contexts as well. See, e.g., Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 481-82 (1982); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 49-51 (1973).
158. See Bd. of Educ. v. Dowell, 498 U.S. 237, 248 (1991) (reversing dissolution order).
159. McFarland, 330 F. Supp. 2d at 850.
160. Id. ("The historical importance of the deference accorded to local school boards goes to the very heart of our democratic form of government.").
161. Id. at 850 n.31.
162. Id. at 851.
163. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 426 F.3d 1162, 1166 (9th Cir. 2005), rev'd, 127 S. Ct. 2738 (2007); McFarland, 330 F. Supp. 2d at 837.
164. See Parents Involved, 426 F.3d at 1166; McFarland, 330 F. Supp. 2d at 837.
165. Grutter v. Bollinger, 539 U.S. 306, 327 (2003)("Context matters when reviewing race-based governmental action under the Equal Protection Clause.... Not every decision influenced by race is equally objectionable, and strict scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the reasons advanced by the governmental decisionmaker for the use of race in that particular context."). Justice Breyer's Parents Involved dissent makes this point emphatically. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2800 (2007) (Breyer, J., dissenting).
166. See Parents Involved, 426 F.3d at 1180 ("Here, our analysis is framed by the Court's narrow tailoring analysis in Grutter and Gratz, which, though informed by considerations specific to the higher education context, substantially guides our inquiry."); McFarland, 330 F. Supp. 2d at 856 ("[T]he Court will evaluate whether the 2001 Plan is narrowly tailored... in light of the factual and analytical differences between this case and the admissions programs reviewed in Grutter and Gratz."). For the sake of brevity, my discussion of how Grutter and Gratz informed the courts' narrow tailoring analyses focuses primarily on the Ninth Circuit's decision.
167. Parents Involved, 426 F.3d at 1180.
168. Id. at 1180-81 ("This [holistic] focus on an applicant's qualifications... is not applicable when there is no competition or consideration of qualifications at issue.").
169. Id.
170. Id. at 1181.
171. Id. at 1181 n.21.
172. Id. at 1181.
173. Id. at 1184. The court also justified its conclusion that no individualized determinations were necessary "[bjecause race itself is the relevant consideration" when the school district attempts to redress de facto segregation. Id. at 1183.
174. McFarland v. Jefferson County Pub. Sen., 330 F. Supp. 2d 834, 859 (W.D. Ky. 2004), aff'd, 416 F.3d 513 (6th Cir. 2005), rev'd, 127 S. Ct. 2738 (2007).
175. Id.
176. Id. ("Many factors determine student assignment, including address, student choice, lottery placement, and, at the margins, the racial guidelines. But, race is simply one possible factor among many, acting only occasionally as a permissible 'tipping' factor in most of the ... assignment process.").
177. See infra Part III.
178. Parents Involved, 426 F.3d at 1184.
179. Id.
180. Id. at 1184-85.
181. Id. at 1169.
182. Id. at 1185.
183. Id. at 1186.
184. See id. at 1188.
185. Grutter v. Bollinger, 539 U.S. 306, 309 (2003).
186. Id. at 340.
187. See Parents Involved, 426 F.3d at 1191.
188. See id.
189. Id. at 1187-91 ("[W]hen a racially diverse school system is the goal (or racial concentration or isolation is the problem), there is no more effective means than a consideration of race to achieve the solution.").
190. Id. at 1191-93 (explaining that the school district revisits the plan annually and is responsive to the parents' and students' choice patterns).
191. McFarland v. Jefferson County Pub. Sch., 330 F. Supp. 2d 834, 856 (W.D. Ky. 2004), aff'd, 416 F.3d 513 (6th Cir. 2005), rev'd, 127 S. Ct. 2738 (2007).
192. Id. at 856-58.
193. Id. at 861.
194. Id.
195. Grutter v. Bollinger, 539 U.S. 306, 330-31 (2003).
196. See Cynthia L. Estlund, Working Together: How Workplace Bonds Strengthen a Diverse Democracy 11 (2003).
197. Grutter, 539 U.S. at 347 (Scalia, J., dissenting).
198. Id.
199. Id.
200. Id. at 347-48.
201. See Michael JC. Fridkin, The Permissibility of Non-RemedialJustifwations for Racial Preferences in Public Contracting, 24 N. III. U. L. Rev. 509, 515 (2004) ("Besides diversity, a frequent candidate for consideration as a non-remedial justification for racial preferences is an agency's "operational needs.").
202. Id.
203. Grutter, 539 U.S. at 308.
204. Id. at 328.
205. Id.
206. Id. at 330.
207. Id.
208. Lorin J. Lapidus, Diversity's Divergence: A Post-Gmttsr Examination of Racial Preferences in Public Employment, 28 W. New Eng. L. Rev. 199, 248 (2006).
209. Grutter, 539 U.S. at 330-31.
210. Lomack v. City of Newark, No. Civ.A.04-6085(JWB), 2005 WL 2077479, at *7 (D.N.J. Aug. 25, 2005), rev'd, 463 F.3d 303 (3d Cir. 2006).
211. Lomack v. City of Newark, 463 F.3d 303, 305 (3d Cir. 2006) (holding that the City of Newark may not "employ a race-based transfer and assignment policy when any racial imbalance ... is not the result of past intentional discrimination by the city"). Of particular concern to the Third Circuit was the breadth of the district court's interpretation of Grutter. Id. at 310 ("Grutter does not stand for the proposition that the ... benefits of diversity are always a compelling interest, regardless of the context."). For the Third Circuit, Grutter "stands for the narrow premise that the educational benefits of diversity can be a compelling interest to an institution whose mission is to educate. The Fire Department's mission is not to educate." Id.
212. 352 F.3d 1111 (7th Cir. 2003), cert, denied, 541 U.S. 1074 (2004).
213. Id. at 1115 (holding that a diverse population would "set the proper tone in the department and ... earn the trust of the community, which in turn [would increase] police effectiveness in protecting the city").
214. Id. at 1112.
215. Id. at 1116-17.
216. Id. at 1117. At the time the challenged examination was given, the City of Chicago was under a federal court order "not to promote officers on rank-order examinations unless it could document the test's validity as a rank order promotional device." Id. at 1116. Validity meant the city had to show there was a relationship between the testing mechanism and job tasks in the new position. Id. Thus, validity turned on whether the city could demonstrate that an applicant's high score on the promotion test would "result in better performance as a sergeant." Id. In order to comply with the validity requirement, the city "standardized" the examination scores based on race, thereby "removing [the] differences between the scores" between white applicants and black and Hispanic applicants. Id. at 1117. These standardized scores were then used to determine promotion order. Id.
217. Id.
218. See id. at 1114. The central rule for public entities seeking to justify the use of racial preferences as a remedy for intentional discrimination is the following: while "no formal, judicial determination of past discrimination by the governmental unit in question is necessary to show the requisite compelling governmental interest," "evidence of such discrimination must be 'strong' or 'convincing." Lewis & Norman, supra note 57, at 386. Consequently, a public employer's voluntary affirmative action plan that seeks to remedy intentional discrimination will be evaluated using a more robust version of strict scrutiny review than the Grutter Court applied. Indeed, the district court below denied the city's motion for summary judgment on the issue of whether there was evidence of "past discrimination... adequate to establish a compelling interest to cure the effects of past discrimination." Petit v. City of Chicago, 239 F. Supp. 2d 761, 778-87 (N.D. 111. 2002), aff'd, 352 F.3d 1111 (7th Cir. 2003), cert, denied, 541 U.S. 1074 (2004). At the same time, the district court granted the city's summary judgment motion on the issue of whether the operational need interest was compelling. Id. at 794. For reasons I will discuss, the Seventh Circuit affirmed that holding on appeal. Petit, 352 F.3d at 1111.
219. Id. at 1114.
220. Id.
221. Id.
222. Id.
223. Id. (explaining that the Seventh Circuit had "left open a small window for forms of discrimination that are supported by compelling public safety concerns" (quoting Reynolds v. City of Chicago, 296 F.3d 524, 530 (7th Cir. 2002))).
224. Id. at 1115 ("Effective police work, including the detection and apprehension of criminals, requires that the police have the trust of the community and they are more likely to have it if they have 'ambassadors' to the community of the same [race or] ethnicity." (quoting Reynolds, 296 F.3d at 529)). The Petit court also recognized that diversity among police supervisors internally changed the "attitudes of officers." See id.
225. Cynthia L. Estlund, Putting Grutter to Work: Diversity, Integration, and Affirmative Action in the Workplace, 26 Berkeley J. Emp. & Lab. L. 1, 34 (2005) ("But Grutter, and its recognition that racially integrated institutions do great social good and advance the cause of equality... should allow public employers to recover their 'normal' entitlement to deference in the defense of employment decisions that help to advance that project of institutional integration.").
226. Petit, 352F.3datH14.
227. Id. at 1115.
228. Id. at 1114.
229. Id.
230. Id. at 1115.
231. Id. at 1114-15 ("[W]hen police officers are routinely supervised by minorities, the fears that the police department is hostile to the minority community will naturally abate.").
232. Id. at 1115.
233. Id.
234. Id.
235. Id. at 1117 ("[S]tandardizing the scores can be seen not as an arbitrary advantage given to the minority officers, but rather as eliminating an advantage the white officers had on the test.").
236. Id. (arguing that even the lowest scoring members of each racial group scored at least ten points above the passing score).
237. See. e.g., Gratz v. Bollinger, 539 U.S. 244, 251-55 (2003) (holding the school's plan unconstitutional because an applicant from an underrepresented minority could be granted admission when that applicant scored into the same range as a Caucasian applicant who was not admitted).
238. Petit, 352 F.3dat 1117.
239. Id.
240. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 238 (1995); Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989).
241. See Petit, 352 F.3d at 1114.
242. See id. at 1117.
243. Id.
244. Croson, 488 U.S. at 486 (rejecting both the argument that legislatures are limited to remedial efforts to counteract prior discrimination and the argument that legislatures have broad power to "define and attack the effects of prior discrimination"); see also Adarand, 515 U.S. at 239 (Scalia, J., concurring in part and concurring in the judgment) ("[U]nder our Constitution there can be no such thing as either a creditor or a debtor race.").
245. See supra Part LB.
246. Fridkin, supra note 201, at 522.
247. No. 96C 1122, 2003 WL 1786489 (N.D. 111. Apr. 2, 2003).
248. Id. at *7.
249. Fridkin, supra note 201 at 522.
250. Id. at 522-23.
251. Builders Ass'n, 2003 WL 1786489, at *7.
252. Id. at *8.
253. See supra Part LA.
254. See Thomas W. Merrill, Public Contracts, Private Contracts, and the Transformation of the Constitutional Order, 37 Case W. Res. L. Rev. 597, 626-27 (1987) (arguing in the context of the Contracts Clause that "public contracts, no less than welfare benefits or antidiscrimination laws, are viewed as public entitlements entitled to special judicial protection").
255. Gene Ming Lee, Note, A Case for Fairness in Public Works Contracting, 65 Fordham L. Rev. 1075, 1093 (1996) ("An important aim in the government's procurement of goods and services is the appearance of fairness.").
256. As Fridkin aptly suggests, "[i]f the firms engaged in urban construction projects are principally white-owned, there may be similar risks to the perceived legitimacy of the public leaders selecting these firms if the firms are performing work in, and receiving taxpayer dollars from, communities of color." Fridkin, supra note 201, at 524.
257. Grutter v. Bollinger, 539 U.S. 306, 332 (2003).
258. See Steven R. Schooley & Michael W. Andrew, Jr., The Devil in Devolution: State and Local Preference Programs, Construction Law., Oct. 1996, at 18, 18.
259. See John K. Gisleson, Competitive Bidding of Municipal Contracts in Pennsylvania and the Litigation it Generates: Who is the Lowest Responsible Bidder?, 41 DuQ. L. Rev. 513, 521(2003).
260. Id. at 529.
261. Id.
262. Id. at 530.
263. Schooley & Andrew, supra note 258, at 18.
264. See W. States Paving Co. v. Wash. State Dep't of Transp., 407 F.3d 983, 994 (9th Cir. 2005) (highlighting the importance of governmental good faith); Sherbrooke Turf, Inc. v. Minn. Dep't of Transp., 345 F.3d 964, 969 (8th Cir. 2003) (finding the government had a compelling interest in "not perpetuating the effects of racial discrimination in its own distribution of federal funds").
265. Sherbrooke Turf, 345 F.3d at 968 (quoting the DBE program). The program was authorized under the Transportation Equity Act for the 21st Century, Pub. L. No. 105-178, § 1101(b)(1), 112 Stat. 107, 113 (1998). Sherbrooke Turf, 345 F.3d at 968-69.
266. Sherbrooke Turf, 345 F.3d at 968.
267. Id. at 967-69.
268. Id. at 969.
269. Id. at 972.
270. Id. (emphasis added). According to the court, this requirement was met for three principal reasons. First, "[t]he state must meet the 'maximum feasible portion' of its overall goal through race-neutral means and must submit for approval a projection of the portion [of the overall DBE goal] it expects to meet through race-neutral means." Id. at 971. Second, under the program, while set-aside contracts are permitted, they are "limited to those instances 'when no other method could be reasonably expected to redress egregious instances of discrimination.'" Id. (citing 49 C.F.R. § 26.43(b) (2007)). Finally, if a state meets its overall DBE goal "for two consecutive years through race-neutral means, [the state] is not required to set an annual overall [DBE] goal until it does not meet its prior overall goal for a year." Id. at 972.
271. 407 F.3d 983 (9th Cir. 2005).
272. Id. at 993 (quoting Grutter v. Bollinger, 539 U.S. 306, 339 (2003)). Accord N. Contracting, Inc. v. Illinois, No. 00-4515, 2005 WL 2230195, at *24 (N.D. 111. Sept. 8, 2005), aff'd, 473 F.3d 715 (7th Cir. 2007). Western States ruled the program was narrowly tailored because, inter alia, the "regulations place a preference on the use of race-neutral means... to achieve a State's DBE utilization goal." W. States, 407 F.3d at 993 (citing Sherbrooke Turf, 345 F.3d at 972).
273. Along these lines, the Court stated that "there does not appear to have been any consideration of the use of race-neutral means to increase minority business participation in city contracting." Richmond v. J.A. Croson Co., 488 U.S. 469, 507 (1989); accord Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237-38 (1995).
274. Ian Ayres, Narrow Tailoring, 43 UCLAL. Rev. 1781, 1787(1996).
275. Grutter, 539 U.S. at 339.
276. Id.
277. Id.
278. Wygant v. Jackson Bd. of Educ, 476 U.S. 267, 280 n.6 (1986).
279. In a case decided prior to Grutter, the Tenth Circuit Court of Appeals ruled the DOT program was narrowly tailored because, inter alia, it "emphasize[d] the continuing need to employ non-race-conscious methods even as the need for race-conscious remedies is recognized." Adarand Constructors, Inc. v. Slater, 228 F.3d 1147, 1179 (10th Cir. 2000), cert. dismissed, 534 U.S. 103 (2001). Adarand seems to suggest that the references to Grutter in Sherbrooke Turf and Western States were not necessary to the result. The Tenth Circuit opinion was not the end of the litigation, however. Adarand petitioned the United States Supreme Court for a writ of certiorari and that petition was subsequently granted. Adarand Constructors, Inc. v. Mineta, 532 U.S. 941 (2001) (granting certiorari). Petitioner's brief on the merits argued that the Tenth Circuit had misapplied the controlling standard: "a 'race conscious remedy will not be narrowly tailored until less sweeping alternatives - particularly race-neutral ones - have been considered and tried.'" Petition for Writ of Certorari, Adarand Constructors, Inc. v. Mineta, 534 U.S. 103 (2001) (No. 00-730) (quoting Walker v. City of Mesquite, 169 F.3d 973, 983 (5th Cir. 1999)). Petitioner argued that an "array" of race-neutral solutions were available but not tried. Id. For instance, petitioner asserted Congress did not attempt to waive a bonding requirement for inexperienced firms before requiring the DOT to presume that every single Sri Lankan permanently residing in America has tried to enter the American highway construction business. Id. Consequently, there is some dispute as to whether the DOT program would have survived constitutional review under an exhaustion-based standard. The Supreme Court did not reach the merits of the argument, and subsequently dismissed the writ as improvidently granted. Adarand, 534 U.S. at 103 (dismissing certiorari as improvidently granted).
280. W. States Paving Co. v. Wash. State Dep't of Transp., 407 F.3d 983, 993-94 (9th Cir. 2005).
281. Id. at 994 (citing Grutter, 539 U.S. at 335).
282. Id.
283. 127 S. Ct. 2738 (2007).
284. Id. at 2746. The mechanics of each plan are discussed above in Part II.A.
285. Id. at 2759 ("The minimal effect these classifications have on student assignments ... suggests that other means would be effective.").
286. Id. at 2746.
287. In Part I-A, Chief Justice Roberts provided the general factual background and procedural history of the Seattle case. Id. at 2746-49. In Part I-B, Chief Justice Roberts provided the general factual background and procedural history of the Louisville case. Id. at 2749-50. In Part II, the Court ruled it had jurisdiction to decide the cases before it. Id. at 2750-51.
288. Id. at 2755, 2761 (Roberts, C.J., plurality opinion).
289. Id. at 2788 (Kennedy, J., concurring in part and concurring in the judgment).
290. Id. at 2800 (Breyer, J., dissenting). Justice Thomas also wrote a concurring opinion, id. at 2768 (Thomas, J., concurring), and Justice Stevens filed a separate dissent, id. at 2797 (Stevens, J., dissenting).
291. Id. at 2793 (Kennedy, J., concurring in part and concurring in the judgment).
292. Id. at 2791.
293. Id. at 2797.
294. See id. at 2760 (majority opinion).
295. Id. at 2753 (quoting Grutter v Bollinger, 539 U.S. 306, 328 (2003)). The majority (as distinct from the plurality) never considered the additional interests that supported Louisville and Seattle's voluntary desegregation plans. See id. at 2760.
296. Id. at 2752.
297. See id. at 2753 (suggesting that because race is the decisive factor in the assignment plans, it is distinct from Grutter where race was one of many factors).
298. Id. (quoting Grutter, 539 U.S. at 328).
299. Id. at 2754.
300. Id.
301. Id. at 2753 (quoting Grutter, 539 U.S. at 330).
302. Id. (emphasis added).
303. Id. at 2753-54.
304. Id. at 2753.
305. See id. at 2753-54.
306. See supra Part I.C.
307. Parents Involved, 127 S. Ct. at 2760 (citing Grutter v. Bollinger, 539 U.S. 306, 339 (2003)).
308. Id. at 2760-61 (citing Richmond v. J. A. Croson Co., 488 U.S. 469, 519 (1989) (Kennedy, J., concurring in part and concurring in the judgment).
309. Id. at 2760.
310. Id. at 2759.
311. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 426 F.3d 1162, 1191 (9th Cir. 2005) ("[T]he District made a good faith effort to consider feasible race-neutral alternatives and permissibly rejected them in favor of a system involving a sibling preference, a race-based tiebreaker and a proximity preference."), rev'd 127 S. Ct. 2738 (2007);
312. McFarland v. Jefferson County Pub. Sen., 330 F. Supp. 2d 834, 861 (W.D. Ky. 2004) ("The Court concludes that, throughout most of the assignment process [excluding the traditional school assignment process which accounted for a small portion of the assignment plan], the Board sufficiently considered and used alternatives, which either were race-neutral or made minimal use of race, to meet narrow tailoring requirements."), aff'd, 416 F.3d 513 (6th Cir. 2005), rev'd, 127 S. Ct. 2738 (2007).
313. Parents Involved, 127 S. Ct. at 2760 ("[I]n Seattle several alternative assignment plans - many of which would not have used express racial classifications - were rejected with little or no consideration. Jefferson County has failed to present any evidence that it considered alternatives....").
314. Id.
315. See supra Part I.A.
316. See supra note 288 and accompanying text.
317. Parents Involved, 127 S. Ct at 2755 (Roberts, C.J., plurality opinion).
318. Id. at 2755-59.
319. Id. at 2755.
320. Id. at 2756-57.
321. Id. at 2756.
322. Id. It is certainly true that "racial balance is not to be achieved for its own sake." Id. at 2757. But the plurality's narrow tailoring analysis went beyond what would have been necessary to invalidate the plans. For instance, the plurality could simply have ruled that the plans failed the narrow tailoring test because there were other less restrictive, race-neutral alternatives that would have achieved the school districts' ends.
323. See id. at 2758-59.
324. Id. at 2763.
325. Id. at 2822 (Breyer, J., dissenting).
326. Id. (citations omitted).
327. Id. at 2818 (emphasis added).
328. Id. at 2763 (Roberts, C.J., plurality opinion).
329. Id. at 2755.
330. Id.
331. Id. at 2764.
332. Id.
333. Id. at 2789 (Kennedy, J., concurring in part and concurring in the judgment).
334. See id. at 2754 (majority opinion).
335. Id. at 2793 (Kennedy, J., concurring in part and concurring in the judgment).
336. See id. at 2792.
337. Grutter v. Bollinger, 539 U.S. 306, 387 (2003) (Kennedy, J., dissenting).
338. Parents Involved, 127 S. Ct. at 2789 (Kennedy, J, concurring in part and concurring in the judgment).
339. Id. at 2800 (Breyer, J., dissenting).
340. Id. at 2797 (Kennedy, J., concurring in part and concurring in the judgment).
341. Id. at 2791.
342. Id. at 2793.
343. Id. at 2754 (majority opinion).
344. Id. at 2793 (Kennedy, J., concurring in part and concurring in the judgment).
345. Id. at 2791.
346. See supra Part I.A.
347. See supra Part I.B.
348. See supra Part I.C.
349. See Parents Involved, 127 S. Ct. at 2796 (Kennedy, J., concurring in part and concurring in the judgment).
350. Id. at 2797. While Justice Kennedy would accept the type of "race as factor" selection mechanism approved in Grutter, the fact that such a system may not be feasible in the public school context is immaterial. See id.
351. Id. at 2794.
352. Id. at 2793.
353. Id. at 2792.
354. Id. at 2797.
355. Id. at 2828 (Breyer, J., dissenting). Justice Breyer argued that each of Justice Kennedy's suggested race-neutral mechanisms was ineffective: But, as to "strategic site selection," Seattle has built one new high school in the last 44 years (and that specialized school serves only 300 students). In fact, six of the Seattle high schools involved in this case were built by the 1920's; the other four were open by the early 1960's. As to "drawing" neighborhood "attendance zones" on a racial basis, Louisville tried it, and it worked only when forced busing was also part of the plan. As to "allocating resources for special programs," Seattle and Louisville have both experimented with this; indeed, these programs are often referred to as "magnet schools," but the limited desegregation effect of these efforts extends at most to those few schools to which additional resources are granted. In addition, there is no evidence from the experience of these school districts that it will make any meaningful impact. As to "recruiting faculty" on the basis of race, both cities have tried, but only as one part of a broader program. As to "tracking enrollments, performance and other statistics by race," tracking reveals the problem; it does not cure it. Id. (citations omitted).
356. See Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 272 (1979) (finding that if the statute is a pretext for gender discrimination then it would be a violation of the Equal Protection Clause); Washington v. Davis, 426 U.S. 229, 240 (1976) (holding that a race-neutral law could violate the Equal Protection Clause if its impact could be traced to a purpose of discriminating on the basis of race).
357. parents Involved, 127 S. Ct. at 2797 (Kennedy, J., concurring in part and concurring in the judgment).
358. Id. at 2793