Case Analyses

The Project reports on decisions with significant implications for racial justice. To view a report on any of the following cases, just click on the name of the decision:

• Fisher v. Texas (2011)
  
• Farrakhan v. Gregoire (2010)
• Ricci v. DeStefano (2009)
• Crawford v. Marion County (2008)
• Kimbough v. U.S. (2007)
• Parents Involved v. Seattle Dist. No. 1 (2007)

FISHER v. TEXAS
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Federal Appeals Court Upholds University of Texas Race-Conscious Admissions Policy
Report by Felicia A. Reid, New York Law School Class of 2011

On January 18, 2011, with Fisher v. Texas, the Fifth Circuit Court of Appeals restated the constitutionality of the University of Texas’s use of race in its undergraduate admissions process. The decision, written by Judge Patrick E. Higginbotham, marks a stop for the first federal court challenge to Grutter v. Bollinger—the landmark 2003 Supreme Court decision. 539 U.S. 306 (2003). In Fisher v. Texas, the Fifth Circuit adhered to the pronouncements of Grutter. The court found that serious, “good-faith consideration” supported UT’s decision to reintroduce a race-conscious admissions policy, even as it layers atop of Texas’s Top Ten Percent Law—a law, enacted in 1997, that guarantees Texas students graduating in the top ten percent of their high school class automatic admission to all state-funded universities. In ultimate, the Fifth Circuit stated that diversity was, and still is, a compelling interest.

In Grutter’s majority opinion, written by then-Justice Sandra Day O’Connor, the U.S. Supreme Court endorsed the right of public universities, in order to increase the enrollment of underrepresented minorities, to use race as a factor in their admissions processes. So long as the exercise of that right is narrowly tailored to the compelling interest of racial diversity in the educational institution and included individual assessments—such as an applicant’s experiential diversity versus other applicants and personal achievements—a race-conscious admissions process can be constitutional.

Fisher arose out of the confluence of Texas’s Top Ten Percent Law and the latitudinal guidelines for public universities’ admissions policies set out in Grutter. UT begins its admission process by dividing applicants into three categories: 1. Texas residents, 2. non-Texas domestic residents, and 3. international students. The university allots ninety percent of a class-year’s available seats to Texas residents, with admission based on a two-tier system: first, for students automatically admitted under the Top Ten Percent Law, and second, considering students using Academic and Personal Achievement indices. The Academic Index is a mechanical formula that predicts a freshman’s GPA using standardized test scores and high school class rank. The University bases its Personal Achievement Index on three scores: one score for each of an applicant’s two required essays, and a third that represents a holistic evaluation of the applicant's entire file. Beginning in 2004, one year after Grutter, the Personal Achievement score incorporates a ‘special circumstances’ component that, in addition to a myriad of other factors, includes the applicant's race.

As Texas residents, Plaintiff-Appellants take issue with the Personal Achievement Index’s lattermost consideration. They argue that UT’s additional consideration of race in its admissions process is unconstitutional because the Top Ten Percent Law already exists for this purpose. Regarding UT’s admissions policy, as it sits in the shadow of the Top Ten Percent Law, Plaintiff-Appellants’ “challenge to Grutter…[rested] upon the intimate ties and ultimate confluence of the two initiatives.” Fisher v. Univ. of Tex., 631 F.3d 213, 5 (2011).

Plaintiff-Appellants also argue that UT did not adequately consider race-neutral alternatives, particularly the Top Ten Percent Law, and that law already achieved a racially diverse “critical mass” as delineated in the Grutter decision. As a result, they argue, UT’s admissions process is unconstitutionally duplicative—a second process that does not conform to Grutter’s careful strictures. After an extensive analysis of Grutter’s reasoning and principles, the Fifth Circuit explored and upheld UT’s admissions process, taking a retrospectively evaluative approach to ensure that the university’s adoption of a race-conscious policy followed from the good-faith considerations that Grutter required.

Extrapolating their analysis, the Fifth Circuit, like the U.S. Supreme Court, notes that public universities are engaged in a uniquely different enterprise than most institutions. Public universities are not monolithic institutions, but places where dynamisms of “perspective, civic engagement and professionalism,” Fisher at 12-13, flourish to create not only educated students, but educated citizens in an ever-diverse society. The court noted that Grutter’s narrow tailoring does not require the implementation of a race-neutral alternative at the sacrifice of a university’s interest in academic selectivity or reputation for excellence; instead UT’s holistic admissions process, though considerate of race, refines the goals of Grutter within the institution’s global goals. The Court observes: “[The Texas legislature adopted] the Top Ten Percent Law to increase minority enrollment, [and though] that it has done, its sweep of admissions is a polar opposite of the holistic focus upon individuals.” Fisher at 78. The Top Ten Percent Law eliminated the consideration of [college admissions] test scores, and correspondingly, so reduced academic selectivity.

With this observation, the Fifth Circuit recognized that UT’s holistic admissions policy is a calibration measure of a law that “presents a Hobson’s choice between the minority student it contributes and the test of the constitutional bounds it [so] courts.” Fisher at 80. UT’s admissions policy, then, is a narrowing remedy for the Law’s broad sweep. In Grutter, Justice O’Connor wrote, "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." Grutter at 343. The Fifth Circuit hitches onto these ‘sunset provisions’ as a limiting measure on the use of universities’ racial considerations. The court mentions that, though UT had no set date by which it intends to end the use of race in undergraduate admissions, the university takes formal measures to check such considerations by its periodic review of race conscious measures and continual consideration of race-neutral alternatives.

FARRAKHAN v. GREGOIRE
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Federal Appeals Court Rules Washington Voting Law Violates Federal Voting Rights Act
Report by Kevin Clinton, New York Law School Class of 2010

On January 5, 2010, the 9th Circuit Court of Appeals granted summary judgment to a minority group of Washington citizens who had been convicted of felonies and alleged that the state’s felon disenfranchisement provision violates §2 of the Voting Rights Act due to racial discrimination within Washington’s criminal justice system. The case is entitled Farrakhan v. Gregoire, 590 F.3d 989 (9th Cir. 2010).

The law as set forth in Washington’s constitution reads as follows: Article VI, § 3 provides: “All persons convicted of infamous crime unless restored to their civil rights . . . are excluded from the elective franchise.” An “infamous crime” is defined as one that is “punishable by death in the state penitentiary or imprisonment in a state correctional facility.” Wash. Rev. Code § 29A.04.079.

As a result of Washington’s law, 24% of Black men and 15% of the entire Black population in Washington have lost their voting rights because of a felony conviction. African Americans, Latinos and Native Americans represent only 12% of Washington's population, but comprise 36% of the State's incarcerated population.

Alleging that minorities are disproportionately prosecuted and sentenced, Plaintiffs argued that the law causes vote denial and vote dilution on the basis of race. “Vote denial” refers to practices that prevent people from voting or having their votes counted. Examples are literacy tests, poll taxes, all-white primaries, and English-only ballots. “Vote dilution,” on the other hand, refers to practices that diminish minorities’ political influence in places where they are allowed to vote. Examples include at-large elections and redistricting plans that keep minorities’ voting strength weak. Farrakhan, 590 F.3d, at 998, fn. 13.

The Court found “compelling” evidence that “in the total population of potential ‘felons’...minorities are more likely than whites to be searched, arrested, detained, and ultimately prosecuted. If those decision points are infected with racial bias, resulting in some people becoming felons not just because they have committed a crime, but because of their race, then that felon status cannot, under section 2 of the VRA, disqualify felons from voting.” Farrakhan, 590 F.3d, at 1014.

Defendants argued that previous case law in the 9th Circuit was clearly erroneous, that plaintiffs had no standing because they had not proven that their particular felony convictions were the result of racial discrimination and that the State’s amended felon disfranchisement law altered the governing analysis. All arguments were summarily dismissed by the court. Farrakhan, 590 F.3d, at 1000-1001.

The court also found that the State failed to challenge the plaintiffs’ statement of undisputed facts, which included two expert reports on the pervasive racial discrimination in Washington, and that the State failed to offer any evidence demonstrating a genuine issue for trial. Farrakhan, 590 F.3d, at 1002-1003. As the court stated, “In any case, even viewing the evidence in the light most favorable to Defendants, Plaintiffs have demonstrated that racial minorities are overrepresented in the felon population based upon factors that cannot be explained by non- racial reasons. Given that uncontroverted showing, in the words of the district court, there can be ‘no doubt that members of racial minorities have experienced discrimination in Washington’s criminal justice system.’” Farrakhan, 590 F.3d, at 1015.

RICCI V. DeSTEFANO
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Endangering Title VII
Report by Charlene Barker, New York Law School Class of 2010

On June 29, 2009, the last day of the United States Supreme Court’s 2008–09 term, the Court rendered the much anticipated decision in Ricci v. DeStefano, 129 S. Ct. 2658, 174 L. Ed. 2d 490 (2009). Ricci was quickly dubbed the “white firefighter’s case” by many, however, the case involved much more than the firefighters’ asserted right to a promotion.

Ricci involved a promotional examination administered by New Haven, Connecticut to members of the New Haven Fire Department to identify those applicants who merited promotions. Knowing that promotional examinations have historically had a disparate-impact on minorities, the City hired a professional testing firm, Industrial/Organizational Solutions Inc. (“IOS”) to develop a racially-neutral exam. When the results of the examination were released the City realized that its efforts to ensure impartiality were not realized, as the results demonstrated stark racial disparities. Specifically, no African-American candidate did well enough on the exam to qualify for a promotion and only two Hispanic candidates were eligible for a promotion based on their score. After careful consideration, including numerous hearings by the New Haven Civil Service Board, the City decided not to certify the results of the examination for fear that they would be sued by minority test takers because of the disparate impact of the examinations and the existence of less discriminatory alternatives to identify promotion candidates. The City immediately went back to the drawing board to develop a testing mechanism that would not produce such adverse results.

John DeStefano, Mayor of the City of New Haven was subsequently sued by petitioners, seventeen white firefighters and one Hispanic firefighter for allegedly discriminating against them because of their race in violation of both Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII) and the Equal Protection Clause of the Fourteenth Amendment U.S. CONST amend. XIV. Petitioners argued that the City intentionally discriminated against them on the basis of race in violation of the disparate treatment provision of Title VII. The crux of Petitioner’s argument was that the City refused to certify the results because the higher scoring candidates were white, and this refusal deprived them of a promotion thus intentionally discriminating against them.

In true form, the Court rendered a 5 to 4 decision holding that the City’s action in discarding the tests violated Title VII. Although Title VII requires that employers consider the effect that their employment practices will have on members of different races and encourages employers to voluntarily comply with its mandates, Justice Kennedy, who delivered the Court’s opinion, reasoned that the decision not to certify the test results constituted impermissible race-based action. 129 S. Ct. 2658, 2664 174 L. Ed 2d 490, 505. This reasoning almost renders null the disparate-impact provision of Title VII which allows a plaintiff to challenge an employer’s action which has an adverse impact on a particular segment of the work force.

The Court’s decision is unsettling for a number of reasons. It fails to provide employers with the much needed clarity required when making employment decisions that might have an adverse impact on members of different races. Prior to this decision, it was clear that if a particular course of action will have an adverse impact on a protected group and that action was not required by a business necessity and there was a less discriminatory alternative available that action course of action was to be abandoned. 42 U.S.C. § 2000e-2(k)(1)(A)(i). This is no longer the case. Employers must now demonstrate “a strong basis in evidence” that they will be subject to disparate-impact liability before they can act. 129 S. Ct. 2658, 2664 174 L. Ed. 2d 490, 505. This vague standard will undoubtedly spur more litigation as employers struggle to decipher what “a strong basis in evidence” exactly means. Furthermore, employers must now establish a Title VII claim against themselves before they can act.

Although the majority correctly avoided the constitutional question, Justice Scalia authored a concurring opinion addressing the issue. Justice Scalia’s opinion poses the question: “[w]hether or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection?” Id. at 2682, 174 L. Ed. 2d 490, 515. Justice Scalia’s assertion that “Title VII’s disparate-impact provisions place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies and to make decisions based on (because of) those racial outcomes” mischaracterizes the Act. Id. The disparate-impact provision of Title VII simply allows for and encourages employers to be cognizant of the racial impact of their business practices so that they can craft fair assessment procedures that gives everyone equal opportunity. Justice Scalia callously classified the City’s action as racial decision-making. This contention disregards the fact that race consciousness was deemed necessary by both the Court and Congress in order remove artificial, arbitrary, and unnecessary barriers to employment when such barriers operate invidiously to discriminate on the basis of racial or other impermissible classifications. The disparate impact provision is a byproduct of the Court’s decisions in Griggs v. Duke Power Co., 401 U.S. 424 (1971) and Ward's Cove Packing Co. v. Antonio, 490 U.S. 642 (1989), realizing the need to address and prevent discriminatory practices that are fair in form but discriminatory in operation. In order to address these practices, employers like the New Haven Fire Department must consider the racial implications of their actions and conform their practices to comply with the mandates of Title VII.

Not surprisingly, the Court’s decision was sharply divided along ideological lines with Justice Ginsburg writing the dissent. In her dissent, Justice Ginsburg highlighted a crucial point that the majority ignored, namely that the white firefighters who scored high on the promotional exam had no vested right to a promotion. 129 S.Ct. at 2690 The City did not grant promotions then decide to take them away; rather the City opted to go back to the drawing board and devise a promotional exam which would not have an adverse impact on minority applicants. Justice Ginsburg’s opinion appropriately notes that the majority’s decision places employers in the untenable position of having to open themselves up to Title VII liability in order to comply with the Equal Protection Clause.

Ricci was a hard case with bad facts; however, the decision needlessly resulted in bad law. On June 29, 2009, the Court disincentivized honest employers from evaluating their business practices to ensure compliance with Title VII and provided “a strong basis in evidence” shield to those employers who neglect to ensure that their employment practices do not have discriminatory effects. It remains to be seen what effects Ricci will have on employment practices and other legislation that requires race consciousness, but one thing is certain, the Court has endangered one of the foremost pieces of civil rights legislation.

CRAWFORD V. MARION COUNTY
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Barrier to the Ballot
Report by Charlene Barker, New York Law School Class of 2010

The right to vote is a fundamental right that goes to the core of an individual’s liberty. A right so sacred that it is protected by both the 15th Amendment and the Voting Rights Act of 1954. Earlier this year, the Supreme Court had occasion to rule on a new voting restriction in Crawford v. Marion County Election Board, 128 S. Ct. 1610, 170 L. Ed. 2d 574 (2008). In 2005, the Indiana legislature passed Indiana’s Senate Enrolled Act No. 483, (“the Act”) which requires voters to present identification prior to casting a ballot. Persons living and voting in a state-licensed facility, such as a nursing home, are exempt from the statute’s identification requirement. The Act also provides an exemption for those who have a religious objection to being photographed and those who are indigent. These persons are allowed to submit provisional ballots, which are counted if the voter executes an appropriate affidavit before the circuit court clerk within ten days following the election. Those who possess valid identification but are unable to present it when voting may also file a provisional ballot. The provisional ballot is only counted if the voter presents identification to the circuit court clerk within ten days of the election.

Various organizations, including local chapters of the Democratic Party and the ACLU, challenged the Act, arguing that it violated the First and Fourteenth Amendments by imposing arbitrary requirements that many are unable to meet, thereby disenfranchising voters. Specifically, appellants argued that the various costs associated with meeting the identification requirements are essentially a poll tax. Indigent voters are forced to incur the added expense of obtaining their birth certificate, and those unable to obtain the required documentation must incur the costs of traveling to the circuit court clerk’s office to file an affidavit attesting to that. Also, appellants argued that elderly voters who were born in another state often have difficulty making the trip to obtain their birth certificates.

The Court upheld the statute in a 6-3 split and without a majority opinion, concluding that the Act does not impose excessively burdensome requirements on any class of voters. Justice Stevens, writing for the plurality, relied on the balancing approach put forward in Anderson v. Celebrezze, 460 U.S. 780 (1983), and evaluated the State’s interest in relation to the burden imposed on the voters. 128 S. Ct. 1610, 1617, 170 L. Ed. 2d 574, 586 (2008). Indiana put forth three justifications for encroaching upon its constituents’ right to vote: deterrence and detection of voter fraud; prevention of voter fraud in response to unreliable voter registration rolls that are a product of the state’s dereliction of its duties; and, lastly, safeguarding voter confidence.

Appellants refuted the State’s interests in detecting and deterring voter fraud as unfounded. Although the Act is primarily aimed at curbing in-person voting fraud, the State did not provide any evidence of voting fraud, at any point in the State’s history. Moreover, appellants argued that penalizing fraud as a felony is a sufficient deterrent. In showing that the Act poses a severe burden on voters, appellants presented depositions and affidavits from voters who attested that they had difficulty meeting the statute’s requirements.

Although the Court noted that a number of voters may be burdened by the statute’s requirements, it marginalized the problem by referring to them as a narrow class of voters. The Court further defended this admitted “special burden” reasoning that the severity of that burden is mitigated by the fact that eligible voters without identification may cast provisional ballots that are ultimately counted after they file an affidavit with the circuit court clerk’s office. Id. at. 1623.

The Court further reasoned that states have had to reexamine their election procedures after the enactment of both the National Voter Registration Act of 1993, which requires state motor vehicle driver’s license applications to serve as voter registration applications, and the Help America Vote Act of 2002, which requires states to verify voter information contained in voter registration applications. Although the court noted that the acts may have urged Indiana to enact SEA 483, neither required it to. Moreover, the court concedes that the most effective method of preventing fraud is debatable. Id. at 1620.

The Court rendered this decision despite noting that Indiana contributed to the very fraud they are attempting to curtail by improperly documenting and updating voter registrations lists. Justice Souter, writing for the dissent, refuted the State’s argument that the identification requirement is not prohibitive because it is free, noting that there are both travel and document retrieval costs associated with obtaining the identification. The dissent also highlighted the other burdens imposed on voters, pointing out that Indiana only accepts limited forms of federal- or state-issued identification, Id. at. 1634, and that the Bureau of Motor Vehicles has fewer license branches in each county than voting precincts. Id. at 1629. Furthermore, the dissent noted that despite the lack of any evidence of voting fraud, Indiana imposed one of the most restrictive photo identification requirements in the country without allowing for a transition period. Id. at 1642. Justice Breyer, in a separate dissenting opinion, found the Act unduly burdensome, noting that other states have much less prohibitive identification requirements, for example, Florida and Georgia, which permit a range of documents to satisfy their identification requirements.

Although the requirement for voter identification appears reasonable on its face, there are a number of implications. There are looming questions concerning the motives behind this requirement. The deeply divided partisan split on this issue has caused many to question whether it is politically motivated? Or, is it racially motivated? It is a safe assumption that those without valid identification tend to be on the lower end of the economic spectrum, which tends to be comprised of minorities. The timing of this decision is also particularly questionable considering the upcoming election and the State’s decree for immediate implementation.

The Court’s decision here is a drastic diversion from Harper v. Virginia Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079 (1966), where it banned the use of a poll tax. In Harper, the Court held that a state violates the Equal Protection Clause of the 14th Amendment when it makes the affluence of the voter or payment of any fee an electoral standard. Id. at 666. The Court’s decision in this case eradicates the very spirit of Harper. Here, Indiana places an overly restrictive, arbitrary requirement on its constituents to curb a non-existent problem. The State and the Court contend that the act is not, and does not resemble, a poll tax, because Indiana provides free identification. Although the identification is free, the numerous costs associated with obtaining the identification act as barriers to casting a ballot. The fact that the fees are not labeled a poll tax does not change how they operate. In its operation and effect the voting requirement disenfranchises voters.

KIMBOUGH V. UNITED STATES
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Supreme Court Addresses Unfairness in Crack Cocaine Sentencing Disparity
Report by Johanna Miller, New York Law School Class of 2008

In early December the Supreme Court delivered its opinion in Kimbrough v. United States, effectively restoring drug sentencing discretion to district court judges. The decision permits judges to deviate from federal Sentencing Guidelines, giving lighter sentences in drug cases, including in situations where the judge feels the Guidelines create an unjust result.

Derrick Kimbrough, a Persian Gulf war veteran, pled guilty to two counts of possessing and distributing more than 50 grams of crack cocaine in Norfolk, Virginia. Combined with his criminal record (misdemeanors only) and a weapons charge that carried its own mandatory five-years, the recommended sentence for Mr. Kimbrough was 19-22 years in prison. This sentence is based on Federal Sentencing Guidelines which recommend the punishment for crack cocaine be 100 times that for powdered cocaine. The federal district court judge sitting in the case, Judge Raymond A. Jackson, called the recommended sentence “ridiculous” and refused to impose it. He sentenced Mr. Kimbrough to 15 years. On appeal, the U.S. Court of Appeals for the Fourth Circuit overturned Judge Jackson’s discretionary sentence, ruling that trial judges act unreasonably if they decline to follow sentencing guidelines based solely on a desire to “avoid the sentencing disparity caused by the 100 to 1 ratio."

In her majority opinion reversing the Fourth Circuit, Justice Ginsburg relied on the recent action of the United States Sentencing Commission to reduce recommended crack cocaine sentences by 30%. Congress did not block the amended Guidelines, which went into effect on November 1. Justice Ginsburg commented on this failure to act as an acknowledgment by legislators that the 100 to 1 sentencing disparity needed to be addressed.

In an unusual move, the Court actually reinstated defendant Kimbrough’s reduced sentence, rather than remanding to the lower courts to take action based on the opinion. The case was notable in another respect as well, uniting seven of nine Justices on what has been a deeply ideologically divided bench. Justices Thomas and Alito dissented in both Kimbrough and a companion case decided the same day, United States v. Gall.

Because of the highly politicized nature of the “War on Drugs,” legislators have had little incentive to reexamine the crack cocaine sentencing disparity since it was created in 1986. For years, federal district judges have deviated from the guidelines in cases where the 100 to 1 ratio seemed particularly unfair. In 2005, the Court held that the Guidelines were not mandatory but were to serve as benchmarks in sentencing decisions (United States v. Booker, 543 U.S. 220). That decision lead to a curious result, allowing district court judges to decide sentences they felt were fair, but not protecting them from Circuit courts for what they viewed as reversible policy-based decisions. After Kimbrough, Circuit courts will not be able to second-guess sentencing based on the judge's consideration of the disparity between crack and powder cocaine sentences.

Kimbrough is a victory for proponents of racial justice, as over 80% of crack cocaine defendants in recent years have been African American. As expected, the Court's decision has created a ripple effect. Days after the Court’s decision, the Sentencing Commission voted to apply it retroactively to the over 19,000 people currently imprisoned on crack cocaine-related offenses, to take effect in March 2008. That same week, Representative Sheila Jackson-Lee (D-TX) introduced bi-partisan legislation to adjust the mandatory sentences created by the 1986 Act, bringing them more in line with mandatory minimums for other “hard” drugs.

PARENTS INVOLVED V. SEATTLE DIST. NO. 1
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↓ To download a PDF of this report, please click here.

A Return to Segregated Education
Report by Charisma L. Miller, New York Law School Class of 2009

The controversy surrounding social equalization and economic reparative measures such as affirmative action and other methods of achieving racial integration have been persistent areas of debate for countless decades. On June 28, 2007, in a ruling of much anticipation, the United States Supreme Court added more fuel to the already incendiary discourse. The cases Parents Involved in Community Schools v. Seattle School District No.1 and Meredith v. Jefferson County Bd. of Education (consolidated as Parents Involved in Community Schools v. Seattle School District No.1[1]) involved separate challenges by parents who argued that the positive and voluntary integration schemes of school districts, in Jefferson County, Kentucky and Seattle, Washington, violated their children’s rights. Prior to the ruling of the Supreme Court, the lower federal courts upheld the plans and many school districts across the country had similar plans in place to promote racial diversity. However, on the last day of Court’s term, the Supreme Court, in a fragmented opinion held that racial integration was not a compelling enough state interest to allow for the classifications of ones race ultimately to determine his/her entrance or conversely his/her denial of entry into specific public schools. Chief Justice Roberts, finishing out his first term on the bench, authored the ultimate opinion of the Court to which Justices Alito, Thomas, Scalia, and Kennedy joined. Roberts’s complete notion that race should never be used to attain diversity in public schools was not endorsed by all members of the majority, resulting in a non-binding plurality opinion written by Roberts. Justice Kennedy, the holdout of the majority bloc, wrote a lone concurring opinion that would allow for race to be considered in certain circumstance where the use of race is narrowly tailored to the state government’s interests. 

The backgrounds of Jefferson County and the Seattle school districts are fairly different, but the purpose driving these districts to employ the programs at issue is the same. They sought to remedy various levels of underlying residential segregation rampant in their respective districts and to further racial diversity. Both school districts voluntarily adopted student assignment plans that utilized race as one of many factors determining which schools certain children could attend. In 1975, a federal court found that the Jefferson County school district had maintained a segregated school system and subsequently subjected the school district to a desegregation decree. In 2000, it was found that the school district had eliminated the remnants of its past segregation policy and in 2001, Jefferson County implemented a plan that classified students by their race and assigned students to particular schools. Unlike Jefferson County, the Seattle school district has never operated legally segregated schools nor had it been subject to any court ordered desegregation. Seattle chose to employ a diversity scheme as a means to end de facto segregation in the schools and provide students in the district with access to diverse and equal educational opportunities.[2] Though Seattle uses race as a means to assign students to particular schools, the use of race is not an automatic mechanism. Race only comes into consideration when 1) a particular school is oversubscribed meaning that such school had been selected by an overabundance of incoming ninth graders as their first choice high school; 2) a sibling tie breaker has been instituted; in other words students who have a sibling attending the oversubscribed school is admitted and 3) the school is racially imbalanced. In other words the racial make up of the school differs by more than 15% from the racial make up of the students in the District as a whole.[3]

To begin its analysis of the case at hand, the Court notes that in evaluating the use of racial classifications in a school context there are two issues that are recognized as compelling government interests thus allowing for such classifications to persist: (1) the use of racial classifications to remedy past intentional discrimination and (2) the use of racial classifications in order to promote diversity in higher education[4]. Tackling the first concern, the Court found that neither the Seattle nor the Jefferson school districts needed to use racial classifications in any effort to remedy past intentional discrimination; Seattle’s school district was never legally segregated and though Jefferson County had been segregated by law, the District Court’s decree in 2000 noted that all vestiges of the past segregation policy was eliminated. 

To address the second recognized interest, that of promotion of diversity in higher education, the Court focused heavily on its holding in Grutter v. Bollinger[5]. The Court noted that in Grutter the compelling interest of promoting diversity was upheld because the admission scheme employed in Grutter viewed the diversity interest as not being focused on race. Instead, the scheme in Grutter took a more individualized approach to admission policies and “…consider[ed] a broad array of [the] qualifications and characteristics of [an applicant]…[of ]which racial or ethnic origin was a single… element[6]. Though the Court praises the narrowly tailored approach of the admission scheme upheld in Grutter, the Court ultimately finds that as Grutter was only addressing institutions of higher education it did not govern the Seattle and Jefferson County controversy.

The Court is correct in distinguishing Grutter from the controversy in Parents v. Seattle. Although the narrow holding of Grutter does not apply, the spirit of Grutter can be seen in the integration schemes at issue in Parents. The school administrations in both sought to promote diversity and integration. Moreover, neither holds race as the sole factor in determining school assignment or admission. For example, in Seattle, factors such as geographic location and school oversubscription are taken into consideration along with race. In Jefferson County, prior to any consideration of a student’s race, factors such as place of residence, school capacity, and a random draw, are considered in school assignments. [7]

To augment the decision that the race assignment plans in this case cannot be upheld, the Court asserts that the assignment schemes had a minimal effect on the school districts stated end, that of promoting racial and ethnic integration. In Seattle, the Court notes that only 84 were affected by the racial tiebreaker.[8] In Jefferson County, the Court found similar results. Though the Court did not believe the effects of either race assignment scheme to be effective, the Court cautioned against the greater use of race to remedy the minimal impact of the current assignment plans[9]. To emphasize the lack of impact that the districts plans had promoting racial diversity, the Court again looks to the decision in Grutter. The Court notes that the admission program instituted in Grutter tripled minority representation at the law school from 4 to 14.5 percent.[10] The Court’s comparison to Grutter in this instance seems faulty and misplaced. The Court praises Grutter for focusing on an individualized scheme unlike the plan in Seattle, for example. Why then does the Court find it necessary to quantify the effect of the plan upheld in Grutter in numbers by stating that the admission program instituted in Grutter tripled minority representation at the law school from 4 to 14.5 percent, while making reference to the fact that the assignment schemes had a minimal quantitative effect on the school districts. It seems that although the Court discredited Seattle’s integration plan because it focused on promoting diversity through equalizing the white/nonwhite student ratio, diversity/integration is all that can be quantifiably measured. This is evident by the Court’s own insistence to quantify the results of the quality driven admission police in Grutter.

The plurality held no bars in explaining its disapproval of the integration schemes at issue. The plurality begins by attacking the substance of the plans and their goals. The plurality claimed that there was no evidence of educational benefits that can be gained through a white/non-white racial balance; however the plurality failed to explain or give any examples as to how else educational benefits of racial diversity could be achieved. The plurality went as far as to say that because the integration plans classify individuals as a part of a racial group, attempts to achieve racial balance are contrary to the “Constitution’s guarantee of equal protection … that the Government must treat citizens as individuals.” This principle, the plurality notes, can be found in Brown v. Board of Education[11], the landmark decision that declared school segregation unconstitutional. The plurality suggests that Brown was meant to cure educational segregation against individuals and not a particular racial group. If this is true, then we are forced to the absurd conclusion that Brown overrules itself because all integration mandates that Brown implicitly called for would be inherently unconstitutional. The question is: does Brown mandate integration or not. If it does, because integration cannot necessarily be achieved by attention to individuals alone, it is only possible to assure effective integration through attention to groups.

Justice Anthony Kennedy joined the opinion of the Court but filed a separate, narrow concurrence. Contrary to the majority Kennedy acknowledges that diversity is a compelling state interest as well as a persuasive educational goal. Believing that diversity is an attainable educational goal, Kennedy finds that the use of race conscious measures to assist in diversifying a school body is acceptable so long as such measures generally address the problem of limited diversity and are not to treat students different solely because of their race. Kennedy provides examples of appropriate measures including strategic sites for new schools or recruiting students and faculty in a targeted fashion.  

Though Kennedy asserts that diversity is a compelling interest, he does not find that either school district in the present case meets the burden of establishing that their programs of achieving diversity are narrowly tailored to that interest. Jefferson County, Kennedy notes, provided only broad and imprecise terms as to when and how they employ individual racial classifications.[12] These ambiguities, Kennedy finds, are problematic when there is a complex, comprehensive plan that contains strategies for achieving racially integrated schools. Regarding Seattle’s plan, Kennedy notes that this school district failed to explain why, in a district composed of diversity of races, it employed the racial categories of “white” and “non-white” as the basis for its assignment decisions.[13] Seattle indicated that one of its goals was promoting the educational benefits of diverse school enrollments; however Kennedy does not find the distinction of solely “white”/”non-white” as furthering this goal. For example, a school with 50% Asian-American and 50%white students would qualify as balanced despite the absence of any Latino or African-American students. Therefore, Kennedy believes that Seattle’s plan defeats its own end of achieving diversity.[14]

Kennedy’s concurrence provides a beacon of light (albeit narrow) to the dark path that the majority of the Court led us down: the return of (re)segregated public schools. The impact of the holding in this case has the great potential of affecting more than public school education. Racial classifications, amongst other factors, are utilized to determine eligibility for scholarships, educational grants, as well as the allotment of targeted endowments for educational institutions. If the holding of the Court is to be viewed as more than a mere mistake by the Court and a misapplication of precedent and ignoring United States history, the prospects of reversal are thin.