Is integration a discriminatory purpose?

Iowa Law Review

Volumn 96, Issue 3, 2011, Pages 837-884

  Adams, Michelle ^a  

^a NONE

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EID: 79953294190     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (351)

1. I2g S. Ct. 2658 (2009).
2. Id. at 2682 (Scalia.J., concurring).
3. 42 U.S.C. §20ooe-2(k) (2006).
4. In Ricci, the petitioners raised both a statutory claim, "under the disparate-treatment prohibition of Tide VII, and a constitutional claim, under the Equal Protection Clause of the Fourteendi Amendment." Ricci, 129 S. Ct. at 2672. The Court ruled diat die petiUoners were entided to summary judgment on the Tide VII claim and dierefore, did not reach die constitutional question.
5. Id. at 2681.
6. Odier scholars have and will continue to probe diis important question. See, e.g., Cheryl I. Harris & Kimberly West-Faulcon, Reading Ricci: Whitening Discrimination, Racing Test Fairness, 58 UCLA L. REV. 73 (2010)
7. Richard A. Primus, The Future of Disparate Impact, 108 MICH. L. REV. 1341 (2010).
8. Ricci, i2g S. Ct. at 2664.
9. Id. at 2664, 2666, 2678.
10. Id. at 2671.
11. This Article, I take the position diat Tide VII of die Civil Rights Act of 1964 was passed at least in part to integrate die workplace.
12. See Richard A. Primus, Equal Protection and Disparate Impact: Round Three, 117 HARV. L. REV. 493, 518-35 (2003) (discussing diree possible reasons for disparate-impact law: disparate impact as an evidentiary dragnet for deliberate discrimination, disparate impact integrates the workplace by ending segregation and racial hierarchy, and disparate impact remedies subconscious discrimination).
13. Ricci, 129 S. Ct. at 2674.
14. The Court conceded that the government's purpose in refusing to certify the examination results was to avoid disparate-impact liability.
15. Id.
16. ("We consider, therefore, whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination.").
17. Paul Brest, The Supreme Court Term, 1975 Term-Foreword: In Defense of the Antidiscrimination Principle, 90 HARV. L. REV. I, 6 (1976).
18. Ricci, 129 S. Ct. at 2695-96.
19. (Ginsberg, J., dissenting) (quoting Ricci v. DeStefano, 554 F. Supp. 2d 142, 157 (D. Conn. 2006), affd, 530 F.gd 87 (2d Cir. 2008), rev'd 129 S. Ct. 2658).
20. See infra Part II.B.
21. See infra Part II.B.
22. Pers. Adm'r v. Feeney, 442 U.S. 256, 279 (1979).
23. PAUL BREST ET AL., PROCESSES OF CONSTITUTIONAL DECISIONMAKING: CASES AND MATERIALS 183 (5th ed. Supp. 2009). The authors ask: Why isn't the employer's decision [in Ricci] "in spite or the effects on whites? Perhaps more to the point, since the state action in this case is the federal government's, why isn't the federal government's purpose the integration of workforces rather than a desire to harm members of the white majority?.
24. Id.
25. see also Charles A. Sullivan, Ricci v. DeStefano: End of the Line or Just Another Turn on the Disparate Impact Road?, 104 Nw. U. L. REV. COLLOQUY 201, 207 (2009).
26. (arguing that "[a] better reading of the facts (or at least a plausible one) is that New Haven acted to avoid disparate impact liability despite the 'adverse effects upon an identifiable group' of whites" (quoting Feeney, 442 U.S. at 279)).
27. Ricci, 129 S. Ct. at 2664.
28. Id. at 2672, 2681.
29. See, e.g., i2g S. Ct. 2658.
30. Nw. Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504 (2009).
31. Parents Involved in Cmty. Sch. v. Seatde Sch. Dist. No. 1, 551 U.S. 701 (2007).
32. Cheryl I. Harris & Kimberly West-Faulcon, America's Next Race War How Ricci v. DeStefano Seeks to Redefine Discrimination, DEFENDERS ONLINE (July 7, 2009), http://www.Uie defendersonline.com/2009/07/07/america's-next-race-war- how-ricci-v-destefano-seeks-to-redefine-discrimination/.
33. 515 U.S. 200(1995).
34. Id.
35. at 240 (Thomas, J., concurring) (alteration in original) (citation omitted).
36. 551 U.S. at 720.
37. 347u-s-483 (i954).
38. 1298.01.2658,2664(2009).
39. Id. at 2664.
40. 551 U.S. at 829 (Breyer.J., dissenting).
41. 539 U-S. 306(2003).
42. Washington v. Davis, 426 U.S. 229, 239-40 (1976), conclusively established that the Equal Protection Clause prohibits only intentional discrimination.
43. See also David A. Strauss, Discriminatory Intent and the Taming of Brown, 56 U. Cm. L. REV. 935, 937 (1989) (stating that Washington v. Davis stands for the proposition that discrimination under the Equal Protection Clause means "acting with discriminatory intent").
44. Michael Selmi, Proving Intentional Discrimination: The Reality of Supreme Court Rhetoric, 86 GEO.LJ. 279, 290 (1997).
45. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 226-27 (1995).
46. Id.at 222-23, 226-27, 234.
47. See, e.g., id. at 243-49.
48. (Stevens, J., dissenting); Metro Broad., Inc. v. FCC, 497 U.S. 547, 564-65 (1990).
49. overruled by Adarand, 515 U.S. 200.
50. See, e.g., Parents Involved in Cmty. Sch. v. Seatde Sch. Dist. No. 1, 551 U.S. 701, 720 (2007) (indicating that all nine justices agreed that die standard to be applied to the racial-classification schemes at issue was strict scrudny).
51. Compare id. at 725-33 (see infra Part III.B).
52. id. at 735-48 (see infra Part V).
53. id. at 748-82.
54. (Thomas, J., concurring in die judgment) (agreeing widi die majority and arguing diat strict scrutiny is required even for benign classifications because even diose "suffer[] die same constitutional infirmity as invidious race-based decisionmaking").
55. id. at 782-98.
56. (Kennedy, J., concurring in die judgment) (affirming strict-scrutiny analysis for racial classifications, but emphasizing diat die government can pass diis standard by proving diat die classification is sufiiciendy narrowly tailored).
57. id. at 798-803.
58. Stevens.J., dissenting) (arguing diat die majority failed to see die significance of die difference between die racial classifications in diis case diat "do not impose burdens on one race alone and do not stigmatize or exclude" and other forms of classifications diat do).
59. id. at 803-68.
60. Breyer.J., dissenting) (asserting diat the context of die classification matters and strict scrutiny diat is "fatal in fact" when applied should only be die standard for classifications diat harmfully exclude, and additionally diat this case requires a more lenient standard tiian traditional strict scrutiny).
61. 543 U.S. 499 (2005).
62. Id. at 502-03.
63. Under the CDC's policy, all male inmates were initially housed with inmates of the same race in reception centers for up to sixty days after their arrival so that prison officials could make final placement determinations for each inmate.
64. Id. at 502.
65. Id. at 502.
66. Id. at 521 (Stevens, J., dissenting).
67. Id. at 512-13 (majority opinion).
68. Id. at 515.
69. Id.
70. ("Prisons are dangerous places, and the special circumstances they present may justify racial classifications in some contexts. Such circumstances can be considered in applying strict scrutiny, which is designed to take relevant differences into account."). On remand, the case settied, and the defendants agreed to "end segregation of inmates by race in its facilities" rather than "attempt to make a showing that the policy would survive strict scrutiny." Johnson v. California, No. CV 95-1 ig2 CBM, slip op. at 2 (CD. Cal. July 10, 2006) (on file with the Iowa Law Review) ("Order Finding Entitlement to Attorney's Fees").
71. Settlement and Release Agreement, Johnson v. California, (gth Cir. Dec. 12, 2005), available at http://www. clearinghouse.net/chDocs/public/PC-CA0041- 0001 .pdf.
72. Johnson, 543 U.S. at 517-18 (Stevens, J., dissenting). Justice Stevens assessed the purported link between interracial housing assignments and gang violence in the following manner: [T]he CDC's post hoc, generalized evidence of gang violence is only tenuously related to its segregation policy. Significantly, the CDC has not cited a single specific incident of interracial violence between cellmates-much less a pattern of such violence-that prompted the adoption of its unique policy years ago. Nor is there any indication that antagonism between cellmates played any role in the more recent riots the CDC mentions. And despite the CDC's focus on prison gangs and its suggestion that such gangs will recruit new inmates into committing racial violence during their 60-day stays in the reception centers, the CDC has cited no evidence of such recruitment, nor has it identified any instances in which new inmates committed racial violence against other new inmates in the common areas, such as the yard or the cafeteria.
73. Id. at 520.
74. Id. at 503 (majority opinion).
75. Id. at 517 (Stevens.J., dissenting).
76. Id.
77. Id. at 523.
78. See Parents Involved in Cmty. Sen. v. Seatde Sch. Dist. No. 1, 551 U.S. 701 (2007).
79. Gratz v. Bollinger, 539 U.S. 244 (2003); Bush v. Vera, 517 U.S. 952 (1996).
80. Shaw v. Hunt, 517 U.S. 899 (1996).
81. Miller v. Johnson, 515 U.S. 900 (1995).
82. Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).
83. Missouri v. Jenkins, 515 U.S. 70 (1995).
84. Shaw v. Reno, 509 U.S. 630 (1993).
85. City of Richmond v. JA. Croson Co., 488 U.S. 469 (1989).
86. Wygant v. Jackson Bd. of Educ, 476 U.S. 267 (1986).
87. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).
88. Croson, 488 U.S. at 493.
89. Id.
90. Id.
91. In his concurring opinion in Croson, Justice Scalia expounded on the harms of racial classifications: The difficulty of overcoming the effects of past discrimination is as nothing compared with the difficulty of eradicating from our society the source of those effects, which is die tendency-fatal to a Nation such as ours-to classify and judge men and women on the basis of dieir country of origin or die color of dieir skin. A solution to die first problem tiiat aggravates die second is no solution at all
92. Id. at 520-21.
93. (Scalia, J., concurring in die judgment). From Justice Scalia's perspective, racial classifications require the government to "know" a citizen's race, to take account of her racial identity, and for race to matter with respect to allocating benefits and burdens.
94. Id.
95. For instance, proof of discriminatory purpose does not result in the automaticinvalidation of the facially neutral rule. See Village of Arlington Heights v. Metro. Hous. Dev.Corp., 429 U.S. 252, 271 n.21 (1977).
96. If the defendant can show that it would have taken thecomplained-of action even in the absence of discriminatory purpose, there is no equal-protection violation.
97. Id.
98. Moreover, it is quite difficult for a plaintiff to demonstrate that a facially race-neutral rule is animated by a discriminatory purpose. Seimi, supra note 2g, at 334-35 (arguing that the Court only infers discriminatory purpose in two situations: "when thefactual circumstances 'bespeak discrimination' and no other plausible explanation presents itself and "when the evidence indicates that the legislation results in the total, or near total, exclusion of African-Americans").
99. see also McCleskey v. Kemp, 481 U.S. 279, 292 (1987).
100. (demonstrating that a defendant challenging a death sentence because of its racially discriminatory application cannot simply rely on statistical disparity but must prove that "the decisionmakers in his case acted with discriminatory purpose"). Typically such a showing will be made via circumstantial rather than direct evidence, and the Court will not infer discriminatory purpose lightly. Arlington Heights, 429 U.S. at 266-68 (in the "rare" case, "a clear pattern [of discrimination], unexplainable on grounds other than race," could prove discriminatory purpose). The Court states: The historical background of the decision is one evidentiary source ⋯. The specific sequence of events leading up to die challenged decision also may shed some light on the decisionmaker's purposes⋯. Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role. Substantive departures too may be relevant, particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to die one reached.The legislative or administrative history may be highly relevant, especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports.
101. Id.
102. (footnotes omitted) (citations omitted).
103. Washington v. Davis, 426 U.S. 229, 239 (1976).
104. See McCleskey, 481 U.S. at 345-66.
105. (Blackmun, J., dissenting); Pers. Adm'r v. Feeney, 442 U.S. 256, 281 (1979).
106. (Stevens, J., concurring).
107. id. at 281-88.
108. (Marshall, J., dissenting); cf. Davis, 426 U.S. at 253-54.
109. (Stevens, J., concurring) (arguing that no bright-line distinction exists between discriminatory purpose and discriminatory impact).
110. 426 U.S. at 229.
111. see, e.g., Batson v. Kentucky, 476 U.S. 79, 93-94 (1986).
112. Rogers v. Lodge, 458 U.S. 613, 617 (1982).
113. Arlington Heights, 429 U.S. at 264-65.
114. See, e.g., Arlington Heights, 429 U.S. at 265-66.
115. Selmi, supra note 29, at 292 ("The petitioner need not prove that the decisionmaker acted with any animus or illicit motive.").
116. 442 U.S. at 279.
117. 458 U.S. at 627 (ruling that in Burke County, Georgia, where blacks made up a majority of the population and whites a slight majority of the voting age population, at-large method of elections for County Board of Commissioners-which had never had a black member-were maintained for racially invidious purposes).
118. 471 U.S. 222, 233 (1985) (ruling that the provision of the Alabama Constitution that disenfranchised anyone convicted of a crime "involving moral turpitude," which was claimed to include the crime of presenting a worthless check, violated the Equal Protection Clause).
119. Id. at 233.
120. The Court stated:Without deciding whether [the challenged provision] would be valid if enacted today without any impermissible motivation, we simply observe that its original enactment was motivated by a desire to discriminate against blacks on account of race and the section continues to this day to have that effect. As such, it violates equal protection under Arlington Heights.
121. Id.
122. see also Rogers, 458 U.S. at 622-27 (outlining extensive evidence considered and relied upon by the district court in reaching the conclusion that discrimination was intentional and declining to pronounce these factual findings as clearly erroneous).
123. Selmi, supra note 29, at 284.
124. see also Theodore Eisenberg, Disproportionate Impact and Illicit Motive: Theories of Constitutional Adjudication, 52 N.Y.U. L. REV. 36, 47-48 (1977) ("Even when the Court is willing to explore official motive, the problems of proof often will be insurmountable for the plaintiff.").
125. Washington v. Davis, 426 U.S. 229, 241 (1976); cf.
126. Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 270-71 (1977) (showing no further inquiry where plaintiffs failed to meet their burden to establish a prima facie case of discriminatory purpose).
127. Sajohn Hart Ely, Legislative and Administrative Motivation in Constitutional Law, 79 YALE LJ. 1205, 1255 (1970).
128. Ely explained:A number of commentators have asserted that government officials may, if they wish, go out of their way to favor the members of minority races without violating the Constitution. But none of whom I am aware, and certainly not the Court, has argued that such favoritism is constitutionally required: the Fourteenth Amendment is read only to require " neutrality" toward such groups.
129. Id. (footnote omitted).
130. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 735-48 (2007) (plurality opinion) (Part rv of Justice Roberts's opinion, joined by Justices Scalia, Thomas, and Alito).
131. Id. at 733-35.
132. Id. at 855 (Breyer, J., dissenting).
133. Id. at 725 (plurality opinion) (internal quotation marks omitted).
134. After the Court ruled that the school districts' voluntary student-assignment plans could not be supported as a remedy for past intentional discrimination or on a Grutterotyle diversity theory.
135. id. at 720-25 (majority opinion), the plurality then addressed the propriety of integration as a compelling interest.
136. id. at 725-33 (plurality opinion).
137. Id. at 746-48 (plurality opinion).
138. Id. at 726 (emphasis added).
139. Id. at 725.
140. Michelle Adams, Radical Integration, 94 CALIF. L. REV. 261, 272-73 (2006).
141. Id. at 272-76.
142. Grutter v. Bollinger, 539 U.S. 306, 329 (2003) (internal quotation marks omitted).
143. See id. at 330-33.
144. The Court, in recounting the law school's claim of a compelling argument, stated:[N]umerous studies show that student body diversity promotes learning outcomes, and "better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals." ⋯ [MJajor American businesses have made clear that die skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints⋯. Moreover, universities, and in particular, law schools, represent the training ground for a large number of our Nation's leaders⋯. In order to cultivate a set of leaders with legitimacy in the eyes of die citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.
145. Id. (citations omitted).
146. see also id. at 330 (indicating that the District Court found a diverse student body "promotes 'cross-racial understanding,' helps to break down racial stereotypes, and 'enables [students] to better understand persons of different races'" (alteration in original)).
147. Id. at 354 n.3, 355 (Thomas, J., concurring in part and dissenting in part).
148. See infra Part IV.B.
149. Grutter, 539 U.S. at 343.
150. 551 U.S. 701, 823 (2007) (Breyer.J., dissenting).
151. For instance, in his concurring opinion, Justice Thomas says explicitly, "[OJutside of the context of remediation for past dejure segregation, 'integration' is simply racial balancing."
152. Id. at 750 n.2 (Thomas.J., concurring).
153. John a. powell, Exec. Dir., Kirwan Inst, for the Study of Race and Ethnicity, Solving the Integration Problem: From Confusion to Public Support, Address at The Harvard Law School Charles Hamilton Houston Institute for Race & Justice National Summit on Interdistrict Desegregation, Passing the Torch: The Past, Present, and Future of Interdistrict School Desegregation (Jan. 17, 2009). The PowerPoint presentation accompanying Professor powell's address is available at http://www.charleshamiltonhouston.org/assets/documents/events/ Passing%2odie%2oTorch/powell-From%2oConfusion%20to%2oSupport2.pdf.
154. Parents Involved, 551 U.S. at 726.
155. Id. at 787-90 (Kennedy, J., concurring in part and concurring in the judgment).
156. Id. at 788.
157. Id. at 788-89.
158. Id. at 788-90.
159. Id. at 793-98.
160. "What the government is not permitted to do, absent a showing of necessity not made here, is to classify every student on the basis of race and to assign each of diem to schools based on diat classification."
161. Id. at 798.
162. Id. at 787.
163. See Miller v. Johnson, 515 U.S. 900, 916 (1995).
164. Shaw v. Reno, 509 U.S. 630, 641, 644 (1993).
165. Parents Involved, 551 U.S. at 788 (Kennedy, J., concurring in part and concurring in the judgment).
166. Id. at 789 (emphasis added).
167. Id. ("Assigning to each student a personal designation according to a crude system of individual racial classifications is quite a different matter; and die legal analysis changes accordingly.").
168. Id. at 798.
169. i2g S- Ct. 2658, 2664 (20og).
170. Id.
171. Id. at 2666. The breakdown of the candidates sitting for the promotion examination and dieir examination results by race is as follows:
172. Id. (citation omitted).
173. Under the City's contract wiui die New Haven firefighters union, "applicants for lieutenant and captain positions were to be screened using written and oral examinations, with the written exam accounting for 60 percent and die oral exam 40 percent of an applicant's total score."
174. Id. at 2665.
175. Id.
176. Id. at 2678. On die lieutenant exam, "die pass rate for white candidates was 58.1 percent; for black candidates, 31.6 percent; and for Hispanic candidates, 20 percent." Id. On die captain exam, "the pass rate for white candidates was 64 percent but was 37.5 percent for both black and Hispanic candidates." Id. at 2677-78.
177. Id. at 2666.
178. Id. at 2678.
179. Id. at 2696 (Ginsburg, J., dissenting) (quoting Ricci v. DeStefano, 554 F. Supp. 2d 142, 158 (D. Conn. 2006), affd, 530 F.3d 87 (2d Cir. 2008), reo'd 129 S. Ct. 2658) (internal quotation marks omitted).
180. Id. at 2664, 2671 (majority opinion).
181. Id. at 2671; see42 U.S.C. § 2oooe-2(a)(0 (2006) (making it unlawful for an employer to "fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin").
182. Ricci, 129 S. Ct. at 2672 (quoting Watson v. Forth Worth Bank & Trust, 487 U.S. 977, 986(1988)).
183. Id. at 2671 (citation omitted).
184. See 42 U.S.C. § 2oooe-2(k)(0(A)(i).
185. Ricci, 129 S. Ct. at 2673 (internal quotation marks omitted).
186. Id.
187. Id. at 2677 (emphasis added).
188. Id. at 2677-78.
189. Id. at 2681.
190. Id.
191. See infra Part III.C.
192. Brest, supra note io, at 6.
193. Ricci, 129 S. Ct. at 2678.
194. Id. at 2696 (Ginsburg.J., dissenting) (alteration in original) (citations omitted).
195. BREST ET AL., supra note 15, at 181.
196. Ricci, lag S. Ct. at 2682 (Scalia.J., concurring).
197. Grutler v. Bollinger, 53g U.S. 306 (2003), is the proverbial exception that proves the rule.
198. But see, e.g., Gratz v. Bollinger, 53g U.S. 244 (2003) (finding that a point allocation system for freshman admissions that included race violated the Equal Protection Clause).
199. 488U.S.469(ig8g).
200. 476 U.S. 267 (ig86).
201. Ricci, 1 zg S. Ct. at 2675.
202. Croson, 488 U.S. at 481-83 (explaining that the city denied contractor's request for a waiver of provision in the city's contested Minority Business Utilization Plan that required 30% of the dollar amount of city contracts be subcontracted to Minority Business Enterprises); Wygant, 476 U.S. at 271-72 (explaining that when "nonminority teachers were laid off, while minority teachers with less seniority were retained" as a result of the school board's minority retention agreement with the teacher's union, "[t]he displaced nonminority teachers" sued).
203. Croson, 488 U.S. at 486, 511; W/gant, 476 U.S. at 283-84.
204. i2g S. Ct at 2677.
205. See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 16-6, at 1451-52 (2d ed. 1988).
206. Cheryl I. Harris and Kimberly West-Faulcon persuasively argued, "Ricci effectively imports strict scrutiny equal protection analysis into Tide VII's substantive provisions by requiring that an employer have a 'strong basis in evidence' for believing it is vulnerable to disparate impact liability before it takes any action to avoid or mitigate disparate impact against minorities." Harris fe West-Faulcon, supra note 5, at 85.
207. see also Primus, supra note 5, at 1349-55 (discussing the Ricci Court's departure from the traditional view of the disparate-impact doctrine).
208. Ricci, 129 S. CL at 2673.
209. Hayden v. Cnty. of Nassau, 180 F.3d 42, 51 (2d Cir. 1999).
210. Ricci, 129 S. Ct. at 2664, 2673-74.
211. Id. at 2664.
212. Of course, one need not read the integrative legislative motive behind disparate impact so broadly. Perhaps the disparate-impact provision of Tide VII is intended to "integrate the workplace only to die extent diat existing hierarchies can be dismantled dirough the elimination of irrational business practices." Primus, supra note 8, at 519. If tiiis is die case, then one argument is that Ricci is consistent widi that view. After all, die Court ruled diat die petitioners were entided to summary judgment on die Tide VII claim because "[tjhere is no genuine dispute diat die examinations were job-related and consistent widi business necessity." Ricci, 129 S. Ct. at 2678. In addition, die City lacked a strong basis in evidence diat diere was an equally valid, less-discriminatory-testing alternative diat it refused to adopt.
213. Id. at 2679. Essentially, die Court's view was diat because there was an adequate business justification for die promotion test, die City's failure to certify die results could not justify race-based discrimination.
214. Again, diis is not a fanciful question. See BREST ETAL., supra note 15, at 181-82.
215. Ricci, 129 S. Ct. at 2677.
216. See Sullivan, supra note 15, at 207 (interpreting diis portion of die Court's opinion to mean diat "die employer could have adopted its testing (or odier practices) to minimize die disparate impact, even diough it could not invalidate a test, once it was given, for diat reason").
217. 129 S. Ct at 2664.
218. See supra Part III.B.
219. See infra Part rV.B.
220. Harris & West-Faulcon, supra note 5, at 116.
221. Although, I have demonstrated why Ricci raises this troubling possibility.
222. See supra Part H.B.
223. Primus, supra note 8, at 523-24.
224. Id. at 518 ("[T]here has long been a dispute over whether disparate impact doctrine is an evidentiary dragnet designed to discover hidden instances of intentional discrimination or a more aggressive attempt to dismande racial hierarchies regardless of whether anything like intentional discrimination is present.").
225. Id. at 523-32.
226. See CYNTHIA ESTLUND, WORKING TOGETHER: HOW WORKPIACE BONDS STRENGTHEN A DIVERSE DEMOCRACY 9 (2003).
227. Esdund argues:The single most promising arena of racial integration-at least for adults-is the workplace. This is not to say that the typical workplace is genuinely integrated, but that even die partial demographic integration that does exist in die workplace yields far more social integration-actual interracial interaction and friendship- dian any odier domain of American society.
228. Id.
229. Primus, supra note 8, at 524.
230. Adams, supra note 72, at 275.
231. See John a. powell, The Tensions Between Integration and School Reform, 28 HASTINGS CONST. L.Q. 655, 683-85 (2001).
232. powell states:The positive effects of desegregation in the schools start widi die students but permeate far beyond die immediate environs of students. Students of color "who attend more integrated schools have increased academic achievement and higher test scores." These increases have been credited to, among odier factors, better resource access and enhanced motivation or competition. Attending a more desegregated school translates into heightened goals for future educational attainment and career, whereas being educated in a racially segregated environment is associated widi lower educational attainment and career goals⋯⋯. Indeed, [die harm of segregation and subordination] is not limited to negative impacts on students' achievement, but reaches into and damages our democratic structure-reifying racial subordination in employment, healdi, wealdi access, and political participation.
233. Id. (footnotes omitted).
234. Primus, supra note 8, at 523-24.
235. Id. (footnote omitted).
236. See generally Adams, supra note 72 (defining radical integration as a concept encompassing both desegregation and associational and material equality).
237. See generally id. (arguing that radical integration, a part of which is individualistic assimilation, should be advanced as both a political and a social goal).
238. Id. at 272 (footnote omitted).
239. 539 U.S. 306, 321, 334-35 (2003).
240. Id. at 316.
241. Id. at 317.
242. Id. at 343.
243. Id. at 326-27.
244. See id. at 328 ("Our holding today is in keeping with our tradition of giving a degree of deference to a university's academic decisions⋯. ").
245. see also id. at 350, 361-67 (Thomas, J., concurring in part and dissenting in part) ("Nor does the Constitution countenance die unprecedented deference the Court gives to die Law School, an approach inconsistent widi die very concept of 'strict scrutiny.'").
246. id. at 380 (Rehnquist, C.J., dissenting) ("Aldiough die Court recites die language of our strict scrutiny analysis, its applicadon of that review is unprecedented in its deference.").
247. id. at 388, 394 (Kennedy, J., dissenting) ("The Court confuses deference to a university's definition of its educational objective with deference to die implementation of this goal Deference is antidietical to strict scrutiny, not consistent widi it.").
248. Id. at 328 (majority opinion) ("Our scrutiny of die interest asserted by die law school is no less strict for taking into account complex educational judgments in an area diat lies primarily within die expertise of die university.").
249. Michelle Adams, Stifling the Potential of Grutter v. Bollinger; Parents Involved in Community Schools v. Seatde School District No. 1, 88 B.U. L. REV. 937, 947-54 (2008) (asserting diat die Grutter Court deferred to die law school on bodi die compelling-interest and narrow-tailoring prongs of die strict-scrutiny test).
250. 539 u-s-at 343.
251. Adams, supra note 162, at 948-53.
252. Id. at 949 (asserting that the Grutter Court balanced the public benefits associated with integration against the harm to frustrated white applicants that "is minimized through appropriate attention to their interests throughout the admissions process").
253. Grutter, 539 U.S. at 337.
254. See id. at 318-20. Indeed, this might help to explain the contrasting outcome in Gratz.
255. Compare id. at 338 ("[T]he Law School actually gives substantial weight to diversity factors besides race. The Law School frequently accepts nonminority applicants with grades and test scores lower than underrepresented minority applicants (and other nonminority applicants) who are rejected. This shows that die Law School seriously weighs many other diversity factors besides race that can make a real and dispositive difference for nonminority applicants as well." (citation omitted)), with Gratz v. Bollinger, 539 U.S. 244, 247, 253-54 (2003) (although the university's undergraduate admission's office considered "a number of factors in making admissions decisions," its automatic distribution of 20 points to every single applicant from an underrepresented minority group "ha[d] the effect of making the 'factor of race ⋯ decisive' for virtually every minimally qualified underrepresented minority applicant").
256. Grutter, 539 U.S. at 318.
257. Id. at 341.
258. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 723 (2007) (citation omitted) (quoting Gratz, 539 U.S. at 276, 280 (O'Connor.J., concurring)).
259. Id. at 7g8 (Kennedy.J., concurring in part and concurring in the judgment).
260. 1298.01.2658,2664(2009).
261. Id.
262. Id. This implication arises in the third paragraph of the opinion. In that paragraph, die Court describes die examination results, die public debate diat ensued after diose results became public, and how each side in die debate argued for their respective positions.
263. Id. In describing how the City resolved the dispute, the Court implied diat the City simply sided with die minority applicants over die white applicants radier dian attempting to come into compliance widi federal law: "In the end die City took die side of those who protested die test results. It threw out the examinations."
264. Id.
265. See id. at 2690 (Ginsburg, J., dissenting) (stating diat petitioners had no "vested right" to die promotion).
266. 539 U.S. 306, 328-30 (2003).
267. Id. at 337.
268. Id. at 326 (quoting Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 237(1995))
269. Harris & West-Faulcon, supra note 19 (stating that the Court in Ricci is engaged in an "ideological battle to deem even thinking about race or racial effects as equivalent to race discrimination, race-conscious anti-racist law in every domain-education, voting rights and employment-is now being challenged as racist").
270. See Members of the Supreme Court of the United States, SUPREME COURT OF THE U.S., http:// www.supremecourt.gov/about/members.aspx (last visited Jan. 2, 2011).
271. See supra Part II A.
272. See Gruiter, 539 U.S. at 339 ("Narrow tailoring does not require exhaustion of every conceivable race-neutral alternative⋯. Narrow tailoring does, however, require serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks."); Adarand, 515 U.S. at 237-38 ("The Court of Appeals ⋯ did not address the question of narrow tailoring in terms of our strict scrutiny cases, by asking, for example, whether there was 'any consideration of the use of race-neutral means to increase minority business participation' in government contracting⋯." (quoting City of Richmond v. J A. Croson Co., 488 U.S. 469, 507 (1989))).
273. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 788 (2007) (Kennedy, J., concurring in part and concurring in the judgment) (outlining die race-neutral alternatives that he believed could have accomplished the school districts' integrative goals); Grutter, 539 U.S. at 328, 340 (deferring to school administrators' "educational judgment that ⋯ diversity is essential to its educational mission" and finding that the school "sufficiently considered workable race-neutral alternatives" and appropriately rejected them because "these alternatives would require a dramatic sacrifice of diversity, die academic quality of all admitted students, or both").
274. Brief for the United States as Amicus Curiae Supporting Petitioner at 13, Grutter, 539 U.S. 306 (No. 02-241), 2003 WL 176635.
275. Id. at 13-14 ("Schools may identify and discard facially neutral criteria that, in practice, tend to skew admissions in a manner that detracts from educational diversity.")
276. Id. at 17.
277. Id. at 13-14, 17.
278. Id.
279. Grutter v. Bollinger, 539 U.S. 306, 340 (2003).
280. Brief for the United States as Amicus Curiae Supporting Petitioner, supra note 184, at 14-18.
281. Grutter, 539 U.S. at 339-40.
282. Id. at 340.
283. Id.
284. Id.
285. Id. While the Court assumed for purposes of the narrow-tailoring analysis that percentage plans are race-neutral, it did not so rule. The Court did not reach the question of whether percentage plans violated the Equal Protection Clause because the plans are motivated by an impermissible discriminatory purpose.
286. See Michelle Adams, Isn 't It Ironict The Central Paradox at the Heart of "Percentage Plans," 62 OHIO ST. L.J. 1729, 1737 (2001) (describing the genesis of the Texas "Ten Percent Plan," which was created in direct response to Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), abrogated by Grutter, 539 U.S. 306, invalidating the University of Texas Law School's race-based admissions scheme).
287. See Miller v. Johnson, 515 U.S. goo, 916 (1995) ("Redistricting legislatures will, for example, almost always be aware of racial demographics; but it does not follow that race predominates in die redistricung process."); Shaw v. Reno, 509 U.S. 630, 641-42, 644 (1993) ("This Court never has held that race-conscious state decisionmaking is impermissible in all circumstances.").
288. 442U.S. 256, 279(1979).
289. See Brief for the United States as Amicus Curiae Supporting Petitioner, supra note 184, at 22 ("Absent such impermissible race-based admissions decisions, university officials may pursue whatever mix of goals they deem appropriate. They are free to pursue goals, such as experiential diversity, that have had the effect of ensuring minority access to institutions of higher learning.").
290. See Editorial, Fighting School Resegregation, N.Y. TIMES, Jan. 27, 2003, at A24 (asserting that percentage plans tell "minority parents that their children's best chance of attending a good college is to attend a segregated high school, [and thus] these programs exert pressure on minority communities not to fight for integration in court, or in their school districts").
291. There is, however, substantial dispute as to whether percentage plans have succeeded in generating significant racial diversity in public colleges and universities. See Jack Greenberg, Affirmative Action in Higher Education: Confronting the Condition and Theory, 43 B.C. L. REV. 521, 547 & n.165 (2002) ("[T]he United States Commission on Civil Rights and its chair have criticized the Texas and Florida [percentage] plans because Florida and Texas have not admitted to college the same proportion of minority students as were admitted under affirmative action."); see also Brian T. Fitzpatrick, Strict Scrutiny of Facially Race-Neutral State Action and the Texas Ten Percent Plan, 53 BAYLOR L. REV. 289, 315-16 & fig.2 (2001) (arguing that a comparison of in-state applicants to the University of Texas at Austin under the Ten Percent Plan does not show a disparate impact on white students).
292. See Roger Clegg, Affirmative Action, the Federal Government, and President Bush: A Conservative View, HUM. RTS., Spring 2001, at 10, 19 (criticizing percentage plans and arguing that "[t]here's no good reason for colleges to ignore SAT scores [in the admissions determination], and there's no good reason to assume that all high schools educate students equally well"); Janet McLaren, Top 10 Percent Plan Under Fire, BATTALION (Tex.), Apr. 14, 2003, available at http://www.thebatt.eom/2.8500/top-10-percent-plan- under-fire-1.1210226 (reporting that "[s]ince the [Texas] top 10 policy was adopted, more students with low SAT scores have enrolled at A&M," and quoting a student at Texas A&M who stated: "The plan discriminates against whites and non-favored minorities including Asians ⋯. The best answer is a system based 100 percent on merit." (internal quotation marks omitted)).
293. KATHRYN M. NECKERMAN, SCHOOLS BETRAYED: ROOTS OF FAILURE IN INNER-CITY EDUCATION 84 (2007); see also Deborah L. McKoy & Jeffrey M. Vincent, Housing and Education: The Inextricable Link, in SEGREGATION: THE RISING COSTS FOR AMERICA 125, 125-50 (James H. Carr & Nandinee K. Kutty eds., 2008) (emphasizing the relationship between school quality and residential patterns).
294. See Greenberg, supra note 201, at 546; see also Marta Tienda & Sunny Xinchun Niu, Capitalizing on Segregation, Pretending Neutrality: College Admissions and Ike Texas Top 10% Law, 8 AM. L. & ECON. REV. 312, 315 (2006) ("Although touted as a race-neutral admissions regime, we confirm diat the success of the top 10% law in restoring diversity to the public flagships resulted because of pervasive race and ethnic segregation in Texas public high schools.").
295. See OFFICE FOR MULTICULTURAL & ACADEMIC AFFAIRS, UNIV. OF MINN., FREQUENTLY ASKED QUESTIONS ABOUT THE USE OF RACE-CONSCIOUS AFFIRMATIVE ACTION POUCIES IN HIGHER EDUCATION 1 (2003), available at http://blog.lib.umn.edu/ trano410/soc3251/affirm1. pdf; B. Forest, Hidden Segregation^ The Limits of Geographically Based Affirmative Action, 21 POL. GEOGRAPHY 855 (2002).
296. Tienda & Niu, supra note 204, at 314, 341.
297. Forest, supra note 205, at 856.
298. Id.; see also OFFICE FOR MULTICULTURAL & ACADEMIC AFFAIRS, supra note 205, at 1 ("Percentage plans work best in areas where housing tends to be segregated, namely, where there are large neighborhoods with high concentrations of families from like backgrounds. These neighborhood schools tend to be segregated and characterized by racial isolation, resulting in proportionate numbers of students of different backgrounds in the top percentage of their high school classes.").
299. Forest, supra note 205, at 856.
300. Brief for the United States as Amicus Curiae Supporting Petitioner, supra note 184, at 14-17.
301. An. Forest, supra note 205, at 857 ("The development of the Texas Plan reflects the acceptance of segregation at the local level as an inevitable, natural phenomenon even as it acknowledges the importance of racial diversity at the scale of the university.").
302. 1298.01.2658,2664(2009).
303. Primus, supra note 8, at 523-32.
304. POVERTY & RACE RESEARCH ACTION COUNCIL, A NATIONAL OPPORTUNITY VOUCHER PROGRAM: A BRIDGE TO QUALITY, INTEGRATED EDUCATION FOR LOW INCOME CHILDREN (2009), available at http://www.prrac.org/pdf/ NationalOpportunityVoucherProgram7-i 5-09.pdf.
305. Id. at 1.
306. Id. at 2.
307. See 425 U.S. 284 (1976). See generally James E. Rosenbaum & Susan J. Popkin, The Gautreaux Program: An Experiment in Racial and Economic Integration, BPI NEWSL. (BUS. & Prof 1 People for the Pub. Interest, Chi., 111.), Apr. 1990, at 3-4 (discussing the positive effects of the Gautreaux Program as it "provided a metropolitan-wide remedy for discrimination in Chicago's public housing"); The Gautreaux Housing Mobility Program, BUS. & PROF'L PEOPLE FOR THE PUB. INTEREST, http://www.bpichicago.org/HousingMobilityPrograms. php (last visited Jan. 2, 2011) (analyzing how the lives of people who moved to low poverty areas under die mobility program dramatically improved).
308. See LEONARD S. RUBINOWITZ & JAMES E. ROSENBAUM, CROSSING THE CLASS AND COLOR LINES: FROM PUBLIC HOUSING TO WHITE SUBURBIA 1 o (2000).
309. For instance, in 2005, almost 200 social scientists signed a petition urging the government to provide housing-mobility assistance to individuals displaced by Hurricane Katrina. See Xavier de Souza Briggs, After Katrina: Rebuilding Places and Lives, 5 CITY & COMMUNITY 119, 127-28 (2006), available at http://www.hks.harvard.edu/saguaro/pdis/ briggskatrina0206.pdf (reproducing die "Scholar's Petition" in die appendix). The petition asserted that "[a]s die nation seeks to find housing for the many who have been left homeless, our goal for diese low-income displaced persons, most of whom are racial minorities, should be to create a 'move to opportunity.'" Id. at 127. The petition cited scientific research indicating diat "moving to lower poverty, lower risk neighborhoods and school districts can have significant positive effects on the well-being and economic opportunity of low-income children and dieir families." Id. at 128. The thrust of die petition was to link location to opportunity (or lack thereof) and to urge die government to provide federal rental-housing subsidies to persons displaced by Katrina so diat diey could relocate to lower poverty and implicidy less racially segregated neighborhoods. Id.; see also Alexander Polikoff, Racial Inequality and the Black Ghetto, POVERTY & RACE NEWSL. (Poverty & Race Research Action Council, Wash., D.C.), Nov.-Dec. 2004, at 1, 8, available at http://www.prrac.org/newsletters/novdec2004.pdf (calling for a national Gautreaux program diat would earmark 50,000 housing-choice vouchers "for use by black families living in urban ghettos, [to] be used only in non-ghetto locations-say, census tracts widi less dian 10% poverty and not minority impacted").
310. POVERTY & RACE RESEARCH ACTION COUNCIL, supra note 214, at 1.
311. Housing Choice Vouchers Fact Sheet, U.S. DEP'T OF Hous. & URBAN DEV., http://www.hud. gov/offices/pih/programs/hcv/about/fact-sheet.cfm (last visited Dec. 30, 2010). Eligible participants benefit financially from die program in that a "housing subsidy is paid to the landlord direcdy by die [public housing authority] on behalf of die participating family. The family then pays die difference between the actual rent charged by die landlord and die amount subsidized by the program." Id.
312. Id.
313. See POVERTY & RACE RESEARCH ACTION COUNCIL, supra note 214, at 1.
314. Id.
315. Department of Housing and Urban Development Appropriations Act, Pub. L. No. 111-8, 123 Stat. 950, 952 (2009); see also Linda Couch, Housing Choice Vouchers, NAT'L Low INCOME HOUSING COALITION (May 6, 2009), http://www.nlihc. org/detail/article.cfmParticle-id=6o49&id=ig (tracing die history of die voucher program and its steady growth).
316. See Couch, supra note 225; see also CTR. ON BUDGET & POLICY PRIORITIES, POLICY BASICS: THE HOUSING CHOICE VOUCHER PROGRAM 1 (2009), http://www.cbpp.org/files/5-15-03hous.pdf (explaining die purposes and benefits of die voucher program).
317. POVERTY & RACE RESEARCH ACTION COUNCIL, supra note 214, at 1.
318. In diis respect, the NOVP proposal differs from Alexander PolikofFs recent call for a Nadonal Gautreaux Program. Under die Polikoff plan, housing vouchers could only be used "in non-ghetto locations-say, census tracts widi less dian 10% poverty and not minority impacted." See Polikoff, supra note 219, at 8.
319. POVERTY & RACE RESEARCH ACTION COUNCIL, supra note 214, at 1.
320. This tension in discrimination law has taken a variety of forms. Take, for instance, Professor Herbert Wechsler's critique of Brown v. Board of Education, 347 U.S. 483 (1954), as lacking a neutral principle justifying its result. Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1,31-35 (1959). Wechsler's view was diat the central issue in Brown boiled down to a question of competing associational rights; blacks wanted to associate with whites, whites did not wish for the association. Id. at 34. For Wechsler, the question was how to break die tie, a question not susceptible to judicial review. Id. Wechsler argued that die Court's ruling in Brown simply favored blacks over whites, and dius it lacked a neutral principle. Id. at 31-33. On this view, Brown was the product of unrestrained judicial activism. Id.
321. Ricci v. DeStefano, 129 S. Ct. 2658, 2682 (2009) (Scalia.J., concurring).
322. See id.; see also BREST ET AL., supra note 15, at 183 ("Perhaps Scalia's argument is that disparate impact is constitutionally troublesome because it requires employers to consider the racial effects of their actions. If so, why wouldn't this concern make unconstitutional any federal policies that encourage voluntary compliance with workplace integration?").
323. See Ricci, 129 S. Ct. at 2682.
324. See, e.g., GEORGE C. GALSTER ET AL., WHY NOT IN MY BACKYARD?: NEIGHBORHOOD IMPACTS OF DECONCENTRATINC ASSISTED HOUSING 50-73 (2003) (examining resistance to the Section 8 and the Moving to Opportunity demonstration programs in Baltimore County); John Goering, Expanding Housing Choice and Integrating Neighborhoods: The MTO Experiment, in THE GEOGRAPHY OF OPPORTUNITY: RACE AND HOUSING CHOICE IN METROPOLITAN AMERICA 127, 136-37 (Xavier de Souza Briggs ed., 2005); Edward G. Goetzetal., The Rise and Fall 0/Fair Share Housing: Lessons from the Tviin Cities, in THE GEOGRAPHY OF OPPORTUNITY: RACE AND HOUSING CHOICE IN METROPOLITAN AMERICA, supra, at 247, 260; Philip D. Tegeler, The Persistence of Segregation in Government Housing Programs, in THE GEOGRAPHY OF OPPORTUNITY: RACE AND HOUSING CHOICE IN METROPOLITAN AMERICA, supra, at 197. See generally SARA PRATT & MICHAEL ALLEN, HOUS. ALLIANCE OF PA., ADDRESSING COMMUNITY OPPOSITION TO AFFORDABLE HOUSING DEVELOPMENT: A FAIR HOUSING TOOLKIT (2004) (providing housing developers with working knowledge of fair housing).
325. 169 F.3d 973, 975-76, 978 (5th Cir. 1999).
326. Id. at 977-79-237-Id.
327. Id. at 980. The Fifth Circuit Court of Appeals explained:[W]e cannot conclude, having reviewed the record, that the Homeowners did not put forth adequate evidence at trial to confer standing upon them. The district court did not hold that the Homeowners lack standing, as he was well aware of the potential for neighborhood disruption traceable to improperly managed public housing projects. HUD and DHA cite no cases in which standing has been denied to homeowners who asserted their quality of life and property values would be diminished by a next-door public housing or other HUD project.Id.; id. at 981-82 (applying strict scrutiny and addressing the narrowly tailored prong).
328. See Philip Tegeler, The Future of Race-Conscious Goals in National Housing Policy, in PUBLIC HOUSING AND THE LEGACY OF SEGREGATION 145, 152-55 (Margery Austin Turner et al. eds., 2009). Tegeler explained: [The] ruling in [ Walker] is out of the legal mainstream because the policy that it struck down did not involve individual race-based preferences, but rather a broad geographically targeted consideration of race. But for the Fifth Circuit Court of Appeals, the mere mention of race in an official policy was enough to trigger strict scrutiny even though no individuals were targeted for differential treatment based on race⋯. [ Walker] is also an "outlier" for another reason: it makes no distinction in the required constitutional analysis between court-ordered, race-conscious programs and legislatively adopted programs like those at issue in Parents Involved. A similar but more lenient standard would likely be applied to a court-ordered remedy that had characteristics similar to the Seattle and Louisville admissions preferences ⋯. Id. at 155; see also Walker v. Dep't of Hous. & Urban Dev., No. 3:85-CV-i2io-R, 1997 WL 33177466, at 2 (N.D. Tex. Oct. 6, 1997), rev'd in part and vacated in part, i6g F.3d 973 (5th Cir. 1999) (applying strict scrutiny when Homeowners asserted an order "violate [d] their rights not to be discriminated against because of their race (white), and their right not to suffer a supposed loss in property values because of that reverse discrimination").
329. i6gF.3dat975-
330. Id. at 979 ("The remedial order's explicit racial classification alone is sufficient to confer standing on these particular homeowners.").
331. James E. Ryan, Comment, The Supreme Court and Voluntary Integration, 121 HARV. L. REV. 131, 154-55 (2007). Ryan states: The [Parents Involved} plurality comes close to condemning voluntary integration altogether, whereas Justice Kennedy accepts the goal but holds his nose at the diought of how it might be achieved. Along die way, both die plurality and Justice Kennedy chastise the local officials who crafted and implemented diese plans for their clumsiness and crudeness. Id. (footnotes omitted).
332. 129 S. Ct. 2658, 2664 (2CKg).
333. POVERTY & RACE RESEARCH ACTION COUNCIL, supra note 214, at 1.
334. See supra Part IV.B.
335. See supra Part IV.B.
336. See supra Part III.B.
337. See supra Part III.B.
338. 169 F.3d 973,984-85 (5th Cir. 1999).
339. See supra Part II.B.
340. Brief for the United States as Amicus Curiae Supporting Petitioner, supra note 184, at 14-18.
341. Walker, 169 F.3d at 984.
342. See supra Part III.B.
343. Nw- Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 2511 (2009); see also Kristen Clarke, The Congressional Record Underlying the 2006 Voting Rights Act: How Much Discrimination Can the Constitution Tolerate?, 43 HARV. C.R.-C.L. L. REV. 385, 385 n.3 (2008) (citing statistics of increased African-American and Hispanic elected officials).
344. See U.S. CENSUS BUREAU, HISTORICAL TIME SERIES TABLES, REPORTED VOTING AND REGISTRATION BY RACE, HISPANIC ORIGIN, SEX, AND AGE GROUPS: NOVEMBER 1964 TO 2008 tblA-1 (2009), available at http://www.census.gov/hhes/www/socdemo/voting/ publications/ historical/index.html (reporting African-American voter turnout for the 2008 presidential election at 64.7% of the citizen population, the highest percent reported dating back to die 1964 Current Population Survey); see also David A. Bositis, Blacks and the 2008 Elections: A Preliminary Analysis, FOCUS MAG., Dec. 2008, at 1, 13-16 & tbls.1-3 ("Black turnout in die 2008 election ⋯ was at an historic high.").
345. Based on die 2000 U.S. Census, die total minority representadon among lawyers is about 9.7%, 20.8% among accountants and auditors, 24.6% among physicians and surgeons, and 18.2% among college and university teachers. ELIZABETH CHAMBLISS, AM. BAR ASS'N, EXECUTIVE SUMMARY, MILES TO GO: PROGRESS OF MINORITIES IN THE LEGAL PROFESSION \ 1 (2005); see also Don J. DeBenedicds, Changing Faces, A.B.A.J., Apr. 1991, at 54, 54 (1991) ("The number of minority lawyers has grown in recent years, albeit slowly."). Prominent examples of minority national and state politicians abound: Barack Obama, President of die United States; Eric Holder, U.S. Attorney General; Colin Powell, former National Security Advisor, Chairman of die Joint Chiefs of Staff, and Secretary of State; Sonia So tomayor, Justice of die U.S. Supreme Court; Roderick Paige, former Secretary of Education; John Conyers, U.S. Representative, Chairman of the House Committee on die Judiciary; Henry Cisneros, former Secretary of Housing and Urban Development; Condoleezza Rice, former Secretary of State; Bill Richardson, Governor of New Mexico; David Paterson, former Governor of New York. In business, in 2006, minorities held 188 (15.42%) of die 1219 seats on die boards of die Fortune 100 companies. THE ALLIANCE FOR BD. DIVERSITY, WOMEN AND MINORITIES ON FORTUNE 100 BOARDS 6 (2008), http://dieabd.org/Women and Minorities on F100 Boards-2008.pdf. And African-Americans are achieving representation in die important social and political circles of our nation's capital. Roxanne Roberts & Krissah Thompson, Washington's High-Level Social Scene Now Mingles Black and White, WASH. POST, Jan. 18, 20og, at Ai. Finally, courts have recognized diis growing minority clout. Barnett v. City of Chi., 969 F. Supp. 1359, 1449 (N.D. 111. 1997) ("African-Americans and Latinos hold important and influential positions of power widiin die City's government, as chairmen or vice-chairmen of City Council committees, and widiin Cook County government. Latinos and African-Americans also serve in several highly influential appointed offices in Chicago. In positions such as these minority leaders enjoy input in guiding die course of public policy."), affd in part and vacated in part, 141 F.3d 699 (7di Cir. 1998); Reed v. Town of Babylon, 914 F. Supp. 843, 890 (E.D.N.Y. 1996) ("African-Americans have important and influential positions of power widiin die municipal government, in die Democratic party and on local boards. The number of seats diat African-Americans hold on local boards is in proportion to their population in die Town.").
346. See C. VANN WOODWARD, THE STRANGE CAREER OFjlM CROW 149-88 (commemorative ed. 2002); see alsoJERROLD M. PACKARD, AMERICAN NIGHTMARE: THE HISTORY OFJIM CROW 210-73 (2002) (tracing the history after World War II when the United States began to show a move toward racial justice, including the passage of the Voting Rights Act in 1965).
347. See, e.g., Parents Involved in Cmty. Sen. v. SeatUe Sch. Dist. No. 1, 551 U.S. 701 (2007); Quintard Taylor, The Civil Rights Movement in the American West: Black Protest in Seattle, 1960-19J0, 80 J. NEGRO HIST. 1, 1 (1995) (identifying three historical views on the Civil Rights Movement: One, as an era "dominated by a powerful and ultimately successful national political coalition led by heroic figures such as Martin Luther King, Jr. that secured new laws insuring equality and opportunity." Another "locate [s] both the origins and success of the Civil Rights Movement in local initiatives from grass-roots organizations in the South." And the third: "The [Civil Rights] Movement should be viewed as a national transformation, an energizing of small and large African American communities throughout die country, inspired by national goals and leadership, but which pursued distincdy local agendas⋯. [For some, the Movement] was ⋯ the campaign to end job bias or school segregation in their local communities as an integral part of the national effort to eradicate racism, empower African Americans, and achieve the full and final democratization of the United States."), cited in Parents Involved, 551 U.S. at 873 app. B (Breyer.J., dissenting).
348. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 240 (1995) (Thomas.J., concurring in part and concurring in the judgment) (alteration in original) (citation omitted).
349. Parents Involved, 551 U.S. at 787-89 (Kennedy, J., concurring in part and concurring in the judgment).
350. Id. at 829 (Breyer.J., dissenting).
351. Ricci v. DeStefano, 129 S. Ct. 2658, 2682 (2009) (Scalia.J., concurring).