Parents Involved in Community Schools v. Seattle School District No.1 Brief Amicus Curiae NAACP Legal Defense Fund

    Nos. 05-908 and 05-915

In The

Jiuprerm; (Knurl of life Puitefc S ta tes

Parents Involved in Community Schools,
Petitioner,

v.

Seattle School D istrict No . 1, etal. ,
Respondents.

Crystal D. Meredith, custodial parent and next 
friend of Joshua Ryan McDonald,

Petitioner,
v.

Jefferson County Board of Education, etal.,
Respondents.

On Writs of Certiorari to the United States Courts of 
Appeals for the Ninth and Sixth Circuits

BRIEF OF THE NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND, INC. AS AMICUS CURIAE 

IN SUPPORT OF RESPONDENTS

*Theodore M. Shaw,
D irector Counsel 

Jacqueline A. Berrien 
Norman J. Chachkin 
V ictor A. Bolden 
Anurima Bhargava 
Matthew Colangelo 
NAACP Legal Defense & 
Educational Fund, Inc.

99 Hudson Street, Suite 1600 
New York, NY 10013 
(212) 965-2200

Chinh Q. Le 
Jenner & Block LLP 
919 Third Avenue 
37th Floor 
New York, NY 10022 
(212)891-1628

* Counsel of Record
Additional Counsel Listed on Inside Cover



David T. Goldberg 
99 Hudson Street, 8 t h  Floor 
New York, NY 10013 
(212)334-8813



I

TABLE OF CONTENTS

TABLE OF AUTHORITIES...................................................iii
INTEREST OF AMICUS CURIAE...........................................1
SUMMARY OF ARGUMENT................................................ 1
ARGUMENT..................................................................   4
I. This Court Should Not Apply Strict Scrutiny To

Respondents’ K-12 Public School Student 
Assignment Policies................................   4
A. The Court Has Never Deemed the Application of

Strict Scrutiny Necessary to Determine Whether 
K-12 Student Assignments to Achieve School 
Integration Are Motivated By Constitutionally 
Illegitimate Purposes....... ............................................. 5

B. This Court Has Repeatedly Expressed Approval
of Voluntary K-12 School Integration Efforts............9

C. Voluntary K-12 School Integration Is Also
Consistent with This Court’s Emphasis on Local 
Control and Deference to School Boards.................. 16

II. Application Of A Rigorous Rational Basis Scrutiny
Standard Is Appropriate Here Because It Takes 
Account Of The Relevant Differences Among K-12 
School Assignments, University Admissions, And 
True Affirmative Action Cases.........................................19
A. Race-Conscious Public School Assignments Are

Contextually and Analytically Distinct from 
Racial Preferences in Affirmative Action Cases..... 19

B. K-12 Student Assignment Policies are Based on a
Balancing of Complex Educational Objectives 
and Practical Considerations that Legitimately 
Relate to and Interact with the Goal of Racial 
Integration....................................................................23



11

CONCLUSION 29



Ill

TABLE OF AUTHORITIES

CASES

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 
(1995)...............................................................2, 6 ,8 ,20 ,28

Anderson v. City o f Boston, 375 F.3d 71 (1st Cir.
2004)...................................................................................26

Board o f Education o f Oklahoma City Public 
School v. Dowell, 498 U.S. 237 (1991)...... ......... 7, 17, 26

Bob Jones University v. United States, 461 U.S. 
574(1983).............................................................................6

Booker v. Board o f Education o f Plainfield, 45 N.J.
161 (N.J. 1965).........................     14

Brewer v. W. Irondequoit Central School District,
212 F.3d 738 (2d Cir. 2000)...................................... 13, 15

Brown v. Board o f Education, 347 U.S. 483 (\954).. passim

Bustop, Inc. v. Board o f Education o f Los Angeles,
439 U.S. 1380(1978)......................................................... 10

City o f Cleburne v. Cleburne Living Center, Inc.,
473 U.S. 432 (1985)...........................................................28

City o f Richmond v. J.A. Croson, 488 U.S. 469 
(1989).............................................................................. 5,29

Clark v. Board o f Education o f Little Rock, 705 
F.2d 265 (8th Cir. 1983)....................................................13

Columbus Board o f Education v. Penick, 443 U.S. 
449(1979).................................................................

Comfort v. Lynn School Committee, 283 F. Supp.
2d 328 (D. Mass. 2003), a ff’d  on other grounds,

10, 18



IV

418 F.3d 1 (1st Cir. 2005), cert, denied, 126 S.
Ct. 798 (2005).................................................................... 23

Comfort v. Lynn School Committee, 418 F.3d 1 (1st 
Cir. 2005), cert, denied, 126 S. Ct. 798 (2005) 
......................................................................... 13, 17, 22, 29

Dayton Board o f Education v. Brinkman, 433 U.S. 
406(1977)....................................................................17, 27

Deal v. Cincinnati Board o f Education, 369 F.2d 55 
(6th Cir. 1966).............................................................. 13-14

Freeman v. Pitts, 503 U.S. 467 (1992)..............7, 15, 17, 26

Gratz v. Bollinger, 539 U.S. 244 (2005)................20, 21, 22

Green v. County School Board o f New Kent 
County, 391 U.S. 430 (1968)................................. ......6, 17

Grutter v. Bollinger, 539 U.S. 306 (2003) 
...................................................................2 ,6 , 8, 19,20,22

Hampton v. Jefferson County Board o f Education,
102 F. Supp. 2d 358 (W.D. Ky. 2000)...................... 14, 23

Higgins v. Board o f Education o f Grand Rapids,
508 F.2d 779 (6th Cir. 1974)............................................ 16

Hunter v. Erickson, 393 U.S. 385 (1969)...........................11

Jackson v. Pasadena City School District, 59 Cal.
2d 876 (Ca. 1963).............................................................. 14

Jacobson v. Cincinnati Board o f Education, 941 
F.2d 100 (6th Cir. 1992), cert, denied, 506 U.S. 
830(1992) 13



V

Johnson v. Board o f Education o f  Chicago, 604 
F.2d 504 (7th Cir. 1979), vacated and remanded 
on other grounds, 457 U.S. 52 (1982)................13, 21,25

Johnson v. California, 543 U.S. 499 (2005)............8, 18, 28

Keyes v. School District No. 1, 413 U.S. 189 (1973).... 6, 10

Korematsu v. United States., 323 U.S. 214 (1944)..............6

Lee v. Nyquist, 318 F. Supp. 710 (W.D.N.Y. 1970), 
a ff’d, 402 U.S. 935 (1971)................................................12

Loving v. Virginia, 388 U.S. 1 (1967)................................... 6

McDaniel v. Barresi, 402 U.S. 39 (1971).............................9

McFarland v. Jefferson County Public Schools, 330 
F. Supp. 2d 834 (W.D. Ky. 2004), a ff’d, Meredith 
v. Jefferson County Board o f Education, 416 F.3d 
513 (6th Cir. 2005).....................................................passim

McLaughlin v. Florida, 379 U.S. 184 (1964)...................... 6

Miller v. Johnson, 515 U.S. 900 (1995).............................. 27

Milliken v. Bradley, 418 U.S. 717 (1974)..........7, 17, 18, 27

Missouri v. Jenkins, 515 U.S. 70 (1995)........................ 7, 26

North Carolina State Board o f Education v. Swann,
402 U.S. 43 (1971)...............................................................9

Offermann v. Nitkowski, 248 F. Supp. 129 
(W.D.N.Y. 1965)...................................   14

Palmore v. Sidoti, 466 U.S. 429, 433 (1984)....................... 6

Parents Association o f Andrew Jackson High 
School v. Ambach, 738 F.2d 574 (2d Cir. 1984)...... 13, 25



VI

Parents Involved in Community Schools v. Seattle 
School District No. 1, 426 F.3d 1162 (9th Cir.
2005)........................................................................... passim

Pasadena City Board o f Education v. Spangler, 427 
U.S. 424(1976).................................................................... 7

Planned Parenthood o f Southeastern Pennsylvania 
v. Casey, 505 U.S. 833 (1992)......................................... 23

Plyler v. Doe, 457 U.S. 202 (1982)......................................24

Regents o f  University o f  California v. Bakke, 438 
U.S. 265 (1978)..................................................... 10, 12, 22

Romer v. Evans, 517 U.S. 620 (1996)................. ......... 28, 29

San Antonio School District v. Rodriguez, 411 U.S.
1 (1973)........................................................................ 17, 27

Swann v. Charlotte-Mecklenburg, 402 U.S. 1 
(1971)...............................................................2, 6, 9, 16, 27

Thornburgh v. Abbott, 490 U.S. 401 (1989)...................... 28

United States v. Lopez, 514 U.S. 549 (1995)..................... 17

United States v. Paradise, 480 U.S. 149 (1987)..................20

Vetere v. Allen, 15 N.Y.2d 259 (1965)...............................14

Vieth v. Jubelirer, 541 U.S. 267 (2004)..............................23

Washington v. Seattle School District No. 1, 458 
U.S. 457 (1982)............................................... 10, 11-12, 27

Wessmann v. Gittens, 160 F.3d 790 (1st Cir. 1998)..........22

Willan v. Menomonee Falls School Board, 658 F.
Supp. 1416 (E.D. Wis. 1987)........................................... 14

Wygant v. Jackson Board o f Education, 476 U.S. 
267(1986) 6,7



Vll

STATUTES

Magnet Schools Assistance Program, 20 U.S.C. §§
7231 et seq ............................................................................8

No Child Left Behind Act o f 2001, 20 U.S.C. §§
6301 et seq ............................................................................8

Mass. Gen. L. ch .71 ,§37C ..................................................14

Ohio Rev. Code § 3313.98(B)(2)(b)(iii)...............................14

MISCELLANEOUS

Meredith v. Jefferson County Board o f Education 
(05-915), Joint Appendix.......................................... 25, 27

James E. Ryan, The Supreme Court and Public 
Schools, 86 Va. L. Rev. 1335 (2000)...............................18



INTEREST OF AMICUS CURIAE

The NAACP Legal Defense & Educational Fund, Inc. 
(“LDF”) is a non-profit legal organization that assists African 
Americans and other people of color to secure their civil and 
constitutional rights. For more than six decades, LDF has 
worked to dismantle racial segregation and ensure equal 
educational opportunity. LDF represented African-American 
plaintiffs in the cases leading up to and including Brown v. 
Board o f Education, 347 U.S. 483 (1954), and has litigated 
numerous subsequent landmark school desegregation cases. 
In addition to its involvement in court-ordered desegregation 
litigation, LDF has played and continues to play a critical 
role in ensuring diversity in higher education as well as racial 
integration at the primary and secondary school level.

LDF filed amicus briefs below in both of the cases now 
before the Court. In McFarland v. Jefferson County Public 
Schools, 330 F. Supp. 2d 834, 837 (W.D. Ky. 2004), a ff’d, 
Meredith v. Jefferson County Bd. ofEduc., 416 F.3d 513 (6th 
Cir. 2005), LDF was granted permission by the district court 
to participate as amicus curiae, submit legal briefs, attend the 
trial to examine and cross-examine witnesses, and present 
oral arguments as the court deemed necessary. In Parents 
Involved in Community Schools v. Seattle School District No. 
1, 426 F.3d 1162, 1173 (9th Cir. 2005) (en banc), LDF filed 
an amicus brief in support of rehearing en banc*

SUMMARY OF ARGUMENT
These cases involve the good faith, voluntary efforts of 

two large, racially diverse school districts to realize the

Letters o f consent by the parties to the filing o f  this brief have been 
lodged with the Clerk o f this Court. No counsel for any party in these 
cases authored this brief in whole or in part, and no person or entity, other 
than amicus, made any monetary contribution to its preparation.



2

promise of Brown v. Board o f Education in the face of 
pervasive, persistent de facto residential segregation and, in 
the case of Jefferson County, Kentucky, a legacy of de jure 
school segregation.

The Court need not apply strict scrutiny in this context. 
K-12 voluntary school integration does not emerge from the 
historical and legal backdrop of race-conscious “affirmative 
action.” Rather, it is a milestone on the long and difficult 
road down which this nation has traveled in its quest to make 
real the aspiration — first articulated in Brown but repeated 
countless times thereafter — of equal, integrated public 
education. As relevant as the legal principles of decisions 
such as Grutter v. Bollinger, 539 U.S. 306 (2003), and 
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), 
may be, they do not dictate the standard of review here.

In its school desegregation cases over more than half a 
century, the Court has consistently emphasized the 
effectiveness of remedies to disestablish state-imposed 
segregation. It has never held that students assigned to 
integrated schools or denied the opportunity to attend 
preferred facilities have suffered cognizable harm, stigmatic 
or otherwise; nor has the Court treated claims of such harms 
as factors that might limit minority plaintiffs’ right to a 
remedy. This history is a significant indication that 
heightened scrutiny is unnecessary in the voluntary 
integration context.

Further, at least since its unanimous ruling in Swann v. 
Charlotte-Mecklenburg Board o f Education, 402 U.S. 1 
(1971), the Court has consistently supported the notion that 
state and local officials could go beyond remedies that might 
be judicially imposed on de jure segregated systems when 
those officials are acting to alleviate de facto segregation and 
achieve integration in their schools. This principle has never



3

been expressly undermined by any of the Court’s subsequent 
decisions, and not surprisingly, lower courts and state and 
local governments have correctly read the pronouncements to 
mean that local voluntary efforts are not only constitutionally 
permissible, but encouraged.

The Court’s school desegregation jurisprudence — and in 
particular, its most recent rulings that set forth standards for 
releasing school districts from court supervision — has also 
repeatedly affirmed the importance of local control and the 
deference that courts should afford school boards as they 
craft educational policies, including student assignment 
policies. It would be ironic, if not altogether perverse, for 
this emphasis on local control and deference to play a critical 
role in the dissolution of desegregation decrees, and yet be 
held insufficient to sustain good faith, voluntary efforts to 
promote integration in the very same schools.

Applying a more relaxed standard of scrutiny here would 
be not only jurisprudentially consistent with the Court’s prior 
rulings, but also analytically and practically sound. Unlike in 
“affirmative action” cases, voluntary integration plans neither 
ration scarce or unique opportunities nor signify judgments 
regarding a student’s aptitude, merit or value; in other words, 
they do not grant “racial preferences” as that term has been 
used in the affirmative action context. The kinds of Equal 
Protection concerns about the distribution of burdens and 
benefits, therefore, which may be germane to traditional 
affirmative action cases, are not triggered where school 
districts sensitively manage the assignment of K-12 students 
to public schools that are alike in material respects to achieve 
racial integration.

Moreover, student assignment plans in K-12 systems are 
the product of school authorities’ consideration and 
balancing of numerous factors, including both operational



4

practicalities and multiple educational policy objectives. 
Their formulation and implementation occur in the context 
of, and often impact, each district’s unique geographic 
patterns and demographic characteristics, of which school 
authorities are necessarily cognizant. In such a setting, the 
application of a strict scrutiny standard would sharply 
constrict the discretion that school boards and policymakers 
should have to fashion local educational goals. Application 
of vigorous rational basis review would avoid these 
consequences while affording ample protection against 
covert discriminatory purposes.

ARGUMENT

I. This Court Should Not Apply Strict Scrutiny To
Respondents’ K-12 Public School Student Assignment 
Policies
It is beyond question that the policies challenged here 

grow directly out of good faith efforts to achieve Brown’’s 
vision of equal, integrated public education. Thus, 
“[vjiewing voluntary school integration as an extension of 
the Supreme Court’s school desegregation jurisprudence 
makes sense.” McFarland, 330 F. Supp. 2d at 851. Yet 
petitioners essentially disregard the more than five decades of 
school desegregation law, relying instead almost exclusively 
on a body of cases involving qualitatively different issues. 
While the relevance of those precedents cannot be denied, the 
Court cannot look to them alone; rather, it must reconcile 
them with its desegregation jurisprudence, the trajectory of 
which is separate and distinct from the cases that petitioners 
treat as controlling.



5

A. The Court Has Never Deemed the Application of 
Strict Scrutiny Necessary to Determine Whether 
K-12 Student Assignments to Achieve School 
Integration Are Motivated By Constitutionally 
Illegitimate Purposes

The purpose of “strict scrutiny” is to ensure that race­
conscious governmental actions are not “in fact motivated by 
illegitimate notions of racial inferiority or simple racial 
politics . . . illegitimate racial prejudice or stereotype,” and 
that “to whatever racial group . . . citizens belong, [they are]
. . . treated with equal dignity and respect” in public 
decisionmaking. City o f  Richmond v, J.A. Croson Co., 488 
U.S. 469, 493 (1989). The Court has never found the use of 
strict scrutiny necessary to avoid these dangers when school 
systems act to promote integrated public schools.

We begin with Brown. That decision neither established 
nor supports the proposition that race may never be 
considered in the assignment of students to public schools. 
Rather, the Court there held that the use of race for  
segregative purposes is impermissible. 347 U.S. at 493, 495. 
Nothing in Brown indicates that race-conscious integrative 
student assignments violate the Equal Protection Clause. 
Indeed, its language and spirit (as well as the many 
subsequent pronouncements of this Court summarized infra 
I.B) suggest the opposite: that adoption of integrative policies 
would be encouraged, since the harms of racial segregation 
occur regardless of whether that segregation is de jure or de 
facto. Id. at 494-95.

No reference to strict scrutiny can be found in Brown, nor 
in any of the Court’s later school desegregation or voluntary 
integration decisions. That standard has its origins in cases 
involving severe sanctions (civil or criminal) applied to 
individuals because of race, or because they crossed racial



6

barriers. E.g., Korematsu v. United States, 323 U.S. 214, 216 
(1944); McLaughlin v. Florida, 379 U.S. 184, 191-93 (1964); 
Loving v. Virginia, 388 U.S. 1, 9, 11 (1967). More recently, 
strict scrutiny been applied in so-called “affirmative action” 
cases, which seek to define the permissible parameters of 
race-consciousness in the distribution of finite goods or 
benefits, such as admission to selective colleges and 
universities, government contracts, and public employment. 
See, e.g., Grutter, 539 U.S. at 326; Adarand, 515 U.S. at 227; 
Wygant v. Jackson Bd. o f Educ., 476 U.S. 267 (1986).

These distinct jurisprudential paths have not converged. 
Although the Court’s school desegregation rulings discussed 
the appropriate remedies for a constitutional violation, see, 
e.g., Keyes v. Sch. Dist. No. 1, 413 U.S. 189 (1973); Swann; 
Green v. County Sch. Bd. o f New Kent County, 391 U.S. 430 
(1968), it is telling that the Court never articulated a need to 
balance those remedies against any students’ claims to a 
supposed “right” to attend “neighborhood” schools, or to be 
free from assignments to integrated schools where they 
would have to associate with pupils of a different racial or 
ethnic group.1 To the contrary, the Court has recognized that 
school authorities may (and should) pursue steps to achieve

1 In the context o f  a “choice” student assignment plan, the logic o f  such a 
holding would suggest that school systems were constitutionally required 
to establish at least some number o f one-race schools for those who 
would prefer them. The Court has firmly rejected such an interpretation 
o f the Constitution. See, e.g., Patmore v. Sidoti 466 U.S. 429, 433 (1984) 
(“Private biases may be outside the reach o f  the law, but the law cannot, 
directly or indirectly, give them effect.”); Bob Jones Univ. v. United 
States, 461 U.S. 574, 595 (1983) (“It would be wholly incompatible with 
the concepts underlying tax exemption to grant the benefit o f  tax-exempt 
status to [private] racially discriminatory educational entities”); Brown, 
347 U.S. at 495 (“Separate educational facilities are inherently 
unequal.”).



7

racial integration because it benefits all students, regardless 
of race. See infra I.B.

Even as the Court began to recognize the limitations of 
available judicial remedies, e.g., Pasadena City Bd. o f Educ. 
v. Spangler, A l l  U.S. 424, 440 (1976); Milliken v. Bradley, 
418 U.S. 717, 744 (1974), it expressed concern exclusively in 
terms of constraints on judicial authority over school boards 
— not any rights of individual students to be assigned to a 
specific school of their choice or schools closer to their 
homes. This despite the fact that many of these cases came 
before the Court as it concomitantly confronted the kinds of 
affirmative action challenges described above.

Nor did the Court’s affirmative action rationale play a 
role in its most recent school desegregation cases, see 
Missouri v. Jenkins, 515 U.S. 70 (1995); Freeman v. Pitts, 
503 U.S. 467 (1992); Bd. o f Educ. o f Oklahoma City Pub. 
Sch. v. Dowell, 498 U.S. 237 (1991), which were decided in 
the same years the Court also decided key affirmative action 
cases. Those rulings emphasized that courts should afford 
deference to school districts in evaluating requests for unitary 
status, see infra I.C, but they said nothing about any burdens 
that continued enforcement of desegregation orders might 
impose on so-called “innocent” third parties. Cf, e.g., 
Wygant, A16 U.S. at 276 (expressing concern, in the context 
of teacher layoffs affected by affirmative action, about 
“imposing discriminatory legal remedies that work against 
innocent people”) (emphasis omitted).

These divergent approaches are not accidental and reflect 
the deep commitment of our Nation to the difficult and 
elusive goal of racial justice and equal treatment. As Judge 
Kozinski, in his concurring opinion below in PICS, reasoned, 
therefore, the appropriate standard of review in these cases is



8

not “strict — and almost always deadly — scrutiny,” but 
rather a “robust and realistic rational basis review.”2

That standard is especially appropriate in light of the long 
struggle toward the core equal opportunity principle of 
Brown, which is rightfully celebrated as the most significant 
ruling of this Court in the twentieth century. It is a symbol of 
high aspirations that has become embedded in public 
dialogue and policy analysis.3 Adoption of a strict scrutiny 
framework as the mechanism for adjudicating challenges to 
the voluntary consideration of race by public school systems 
committed to Brown's core values of equality and integration

2 Both o f  the courts below believed that application o f  strict scrutiny was 
required by this Court’s recent rulings in Johnson v. California, 543 U.S. 
499, 505 (2005), Grutter, and Adarand. PICS, 426 F.3d at 1172 n.12; 
McFarland, 330 F. Supp. 2d at 848-49. It is true that the Court has 
sometimes stated that all racial classifications are subject to strict 
scrutiny. See, e.g., Johnson, 543 U.S. at 505. This reflects a traditional 
and appropriate skepticism about racial classifications and provides 
general guidance for lower courts. Nevertheless, such statements reflect 
the Court’s experience with the range o f  factual settings in cases raising 
such issues that have been presented to it and do not inexorably dictate 
that there are not other factual contexts, in which race is given 
consideration, where application o f  the strict scrutiny standard is not 
required. “[T]he Supreme Court’s opinions are necessarily forged by the 
cases presented to it; where the case at hand differs in material respects 
from those the Supreme Court has previously decided, I would hope that 
those seemingly categorical pronouncements will not be applied without 
consideration o f whether they make sense beyond the circumstances that 
occasioned them.” PICS, 426 F.3d at 1195 (Kozinski, J., concurring). 
Indeed, separate opinions o f individual Justices have suggested that strict 
scrutiny should not apply to every instance in which race is implicated. 
See, e.g., Johnson, 543 U.S. at 516 (Ginsburg, J., concurring) (citing 
cases); id. at 538-41 (Thomas, J., dissenting). Amicus believes, for the 
reasons set forth in this brief, that public school voluntary integration 
plans are one such context.
3 See, e.g., No Child Left Behind Act o f 2001, 20 U.S.C. §§ 6301 et seq.; 
Magnet Schools Assistance Program, 20 U.S.C. §§ 7321 et seq.



9

would mark a retrogressive shift that history may regard as 
equally unfortunate as the Dred Scott ruling was in an earlier 
day. The Court should not pursue such a course.

B. This Court Has Repeatedly Expressed Approval of 
Voluntary K-12 School Integration Efforts

Not only has this Court never applied strict scrutiny in 
the context of public school districts’ voluntary integration 
policies, but it has expressly approved school board policies 
that foster integration independent o f any constitutional 
obligation to do so. In Swann, the Court stated:

School authorities are traditionally charged with broad 
power to formulate and implement educational policy 
and might well conclude, for example, that in order to 
prepare students to live in a pluralistic society each 
school should have a proscribed ratio of Negro to white 
students reflecting the proportion for the district as a 
whole. To do this as an educational policy is within the 
broad discretionary powers o f  school authorities.

402 U.S. at 16 (emphasis added); accord North Carolina 
State Bd. o f  Educ. v. Swann, 402 U.S. 43, 45 (1971) 
(recognizing integration as a permissible goal to pursue 
“quite apart from any constitutional requirements”); 
McDaniel v. Barresi, 402 U.S. 39, 40-41 (1971). 4

4 The dissent in PICS incorrectly suggests that this passage from Swann is 
taken “out o f  context” and does not speak to whether school authorities 
may consider race in student assignment in the absence o f  a finding that 
the district had engaged in de jure  racial segregation. PICS, 426 F.3d at 
1208-09 n.17 (Bea, J., dissenting). First, the language the dissent cites as 
additional context is irrelevant; it relates to limitations on the authority o f  
courts to order remedies that exceed the scope o f  the violation. Second, 
the dissent ignores the clear language in the other opinions issued by the 
Court on the same day, see North Carolina State Bd., 402 U.S. at 45; 
McDaniel, 402 U.S. at 40-41, which recognize the ability of state and



10

In the thirty-five years since Swann, a majority of the 
Court has never joined an opinion contradicting the notion 
that public school officials may go further than courts to 
foster integrated student bodies. In fact, subsequent signals 
from individual Justices, prior to and after the emergence of 
the Court’s affirmative action jurisprudence, suggest the 
opposite — that local bodies do retain flexibility to make 
such decisions. See, e.g., Columbus Bd. o f Educ. v. Penick, 
443 U.S. 449, 488-89 n.7 (1979) (Powell, J., dissenting) 
(contrasting the difficult judicial considerations involved in 
court-ordered remedies with one state’s voluntary school 
desegregation statute, calling the latter “the sort of effort that 
should be considered by state and local officials and elected 
bodies”); Bustop, Inc. v. Bd. o f  Educ. o f  Los Angeles, 439 
U.S. 1380, 1383 (1978) (Rehnquist, J., in chambers);5 Keyes, 
413 U.S. at 242 (Powell, J., concurring) (noting that 
“[sjchool boards would, of course, be free to develop and 
initiate further plans to promote school desegregation 
[beyond what a court has ordered],” and that “[n]othing in

local officials to adopt desegregation plans “quite apart from any 
constitutional requirements,” as well as the Court’s statement in 
Washington v. Seattle Sch. Dist. No. I, 458 U.S. 457, 472-74 (1982), 
about deference to the political process to resolve the issue o f  the efficacy 
and desirability o f  school desegregation.
5 Bustop is particularly revealing. There, in the same year that the Court 
decided Regents of Univ. o f Cal. v. Bakke, 438 U.S. 265 (1978), then- 
Justice Rehnquist rejected the emergency petition o f  white parents who 
opposed a race-conscious voluntary student assignment policy for Los 
Angeles County, California. He indicated that while California was 
under no federal obligation to order desegregation o f  its schools, he had 
“very little doubt that it was permitted . . .  to take such action” pursuant to 
its own constitution. Bustop, 439 U.S. at 1383. He went on to observe 
that the “novel” argument advanced by the challengers seemed to depend 
on the errant assumption that, in the context o f  public education, “each 
citizen o f  a State who is either a parent or a schoolchild has a ‘federal 
right’ to be ‘free from . . .  extensive pupil transportation.’” Id.



11

this opinion is meant to discourage school boards from 
exceeding minimal constitutional standards in promoting the 
values of an integrated school experience”).

Indeed, in Washington v. Seattle Sch. Dist. No. 1, 458 
U.S. 457 (1982), not only did the Court decline to liken non- 
remedial, race-conscious student assignment policies to race 
preferences that it had condemned in affirmative action 
cases, but it struck down state-level efforts to ban their local 
adoption. There, it invalidated a statewide initiative banning 
all school districts from using busing to alleviate de facto 
segregation, finding that the initiative created a unique 
burden on racial minorities by selectively and improperly 
“placing] effective decisionmaking authority over a racial 
issue at a different level of government.” Id. at 474-75 
(citing Hunter v. Erickson, 393 U.S. 385, 391 (1969)). In so 
doing, the Court acknowledged:

Education has come to be “a principal instrument in 
awakening the child to cultural values, in preparing him 
for later professional training, and in helping him to 
adjust normally to his environment.” [Brown, 347 U.S. 
at 493.] When that environment is largely shaped by 
members of different racial and cultural groups, 
minority children can achieve their full measure of 
success only if they learn to function in — and are fully 
accepted by — the larger community. Attending an 
ethnically diverse school may help accomplish this goal 
by preparing minority children “for citizenship in our 
pluralistic society,” . . . while, we may hope, teaching 
members of the racial majority “to live in harmony and 
mutual respect” with children of minority heritage. . . . 
[I]n the absence o f a constitutional violation, the 
desirability and efficacy o f school desegregation are 
matters to be resolved through the political process.



12

Id. at 472-74 (footnote omitted) (emphasis added).

The Seattle ruling demonstrates that the Court neither 
viewed nor analyzed the development of its affirmative 
action jurisprudence as undermining the authority of school 
districts to establish and maintain integration policies. 
Significantly, Seattle was decided four years after the Court 
confronted the affirmative action policy in Regents o f  
University o f California v. Bakke, 438 U.S. 265 (1978), and 
yet the opinion hardly makes mention of Bakke at all.6 
Instead, it refers to Brown's mandate, and the responsibility 
of school boards to consider “the desirability and efficacy of 
school desegregation.” Seattle, 458 U.S. at 474.7

The courts below indicated that they were informed by 
these and other cases. PICS, 426 F.3d at 1179; McFarland, 
330 F. Supp. 2d at 851. They are not alone. For decades, 
federal courts across the nation have repeatedly held that 
state and local officials may voluntarily employ race­
conscious student assignment strategies to integrate their

6 Regardless, Bakke itself does not support the argument advanced by 
both petitioners and the United States. As a preliminary matter, because 
Bakke presented a classic “race preference” claim —  i. e., race was 
considered in a competitive admission process for a medical school with 
limited openings, etc. —  the presumption o f  its application to these cases 
is inapposite. Yet, even in that context, Justice Powell’s opinion allowed 
race to be taken into account as one factor, even though he explicitly 
recognized that meant that race would be a controlling and the deciding 
factor in at least some individual instances. 438 U.S. at 316-19.
7 Seattle also cited with approval Lee v. Nyquist, 318 F. Supp. 710 
(W.D.N.Y. 1970), aff’d, 402 U.S. 935 (1971), a case with similar facts 
and affirmed by this Court. As had Seattle, Lee found that “[although 
there may be no constitutional duty to undo de facto  segregation, . . .  it 
is by now well documented and widely recognized by educational 
authorities that the elimination o f racial isolation in the schools promotes 
the attainment o f  equal educational opportunity and is beneficial to all 
students, both black and white.” Id. at 714.



13

schools and reduce the harms associated with racial isolation. 
See, e.g., Comfort v. Lynn Sch. Comm., 418 F.3d 1, 28 (1st 
Cir. 2004) (Boudin, C.J., concurring) (“in the absence of a 
constitutional violation,” decisions about whether to pursue 
school integration “are customarily left to legislatures, city 
councils, school boards, and voters”), cert, denied, 126 S. Ct. 
798 (2005); Brewer v. W Irondequoit Cent. Sch. Dist., 212 
F.3d 738, 751 (2d Cir. 2000) (“[L]ocal school authorities 
have the power to voluntarily remedy de facto segregation 
existing in schools and, indeed, such integration serves 
important societal functions.”); Jacobson v. Cincinnati Bd. o f  
Educ., 941 F.2d 100, 102 (6th Cir. 1992) (authority of school 
boards extends to adoption of voluntary integration policies 
“particularly when such a policy is implemented in order to 
prepare students for life in a pluralistic society”), cert, 
denied, 506 U.S. 830 (1992); Parents A ss’n o f  Andrew 
Jackson High Sch. v. Ambach, 738 F.2d 574, 581 n.9 (2d Cir. 
1984) (school boards permitted to adopt otherwise 
“constitutionally suspect measures to counteract the 
perceived problem of accelerated white flight”); Clark v. Bd. 
o f Educ. o f  Little Rock, 705 F.2d 265, 271 (8th Cir. 1983) 
(“Although the possibility of white flight and consequent 
resegregation cannot justify a school board’s failure to 
comply with a court order to end segregation, . . .  it may be 
taken into account in an attempt to promote integration.”); 
Johnson v. Bd. o f  Educ. o f  Chicago, 604 F.2d 504, 518 (7th 
Cir. 1979) (“[T]he absence of a constitutional duty on the 
part of the school authorities to establish racially-based 
enrollments does not preclude the Board from prescribing a 
racial balance to remedy the segregative impact of 
demographic change.”), vacated and remanded on other 
grounds, 457 U.S. 52 (1982) (emphasis in original); Deal v. 
Cincinnati Bd. o f Educ., 369 F.2d 55, 61 (6th Cir. 1966) 
(“Although boards of education have no constitutional



14

obligation to relieve against racial imbalance which they did 
not cause or create, . . .  it is not unconstitutional for them to 
consider racial factors and take steps to relieve racial 
imbalance if in their sound judgment such action is the best 
method of avoiding educational harm.”); Hampton v. 
Jefferson County Bd. o f Educ., 102 F. Supp. 2d 358, 379 
(W.D. Ky. 2000) (“If [a school district] voluntarily chooses 
to maintain desegregated schools, it acts within the 
traditional authority invested in a democratically elected 
school board.”); Willan v. Menomonee Falls Sch. Bd., 658 F. 
Supp. 1416, 1422 (E.D. Wis. 1987) (“It is well-settled in 
federal law that state and local school authorities may 
voluntarily adopt plans to promote integration even in the 
absence of a specific finding of past discrimination.”); 
Offermann v. Nitkowski, 248 F. Supp. 129, 131 (W.D.N.Y. 
1965) (“[T]he Fourteenth Amendment, while prohibiting any 
form of invidious discrimination, does not bar cognizance of 
race in a proper effort to eliminate racial imbalance in a 
school system.”) (all internal citations omitted).

States, too, have acted in reliance upon the basis of the 
Court’s jurisprudence approving voluntary steps to integrate 
schools, through legislative, administrative, or judicial 
actions. See, e.g., Booker v. Bd. o f Educ. o f  Plainfield, 45 
N.J. 161 (N.J. 1965); Vetere v. Allen, 15 N.Y. 2d 259 (N.Y. 
1965) (per curiam)', Jackson v. Pasadena City Sch. Dist., 59 
Cal. 2d 876, 881-82 (Cal. 1963); Mass. Gen. L. ch. 71, §37C; 
Ohio Rev. Code § 3313.98(B)(2)(b)(iii).

There is simply no adequate basis to conclude that Swann 
and Seattle do not remain good law. The decisions of this 
Court following Brown have emphasized that federal courts 
may act only on the basis of a constitutional violation, and 
that the scope of remedies available in such circumstances is 
limited, but it has never been supposed or suggested that the



15

authority of school boards to do what courts cannot has 
likewise been diminished, sub silentio.8 This Court should 
resist petitioners’ urging that it import strict scrutiny analysis 
to evaluate voluntary school integration policies. As Judge 
Kozinski observed, 426 F.3d at 1195, because the nearly 
uniform result of applying strict scrutiny is invalidation of 
the challenged policy, this will inevitably chill, and all too 
often effectively eviscerate, the latitude school districts have 
traditionally enjoyed — and indeed need — in order to make 
sensitive, well-informed educational policy decisions.

At bottom, respondents have done precisely what this 
Court has long indicated that it hoped all public school 
systems — including those which have attained unitary status 
by faithfully implementing court-ordered relief and 
ultimately incorporating its underlying purposes into their 
own plans and goals — would do: they have made a 
conscious effort to build upon their prior achievements, to 
learn from their mistakes, and to continue striving toward 
Brown’s vision of equal, integrated public schools. See 
McFarland, 330 F. Supp. 2d at 852-54.

The Court has never given any indication that it intended 
to transform the Equal Protection Clause into a weapon with 
which opponents of school integration may challenge K-12 
student assignment decisions made in good faith to provide 
equal educational opportunity. It should not now legitimate

8 To the extent that petitioners rely on the Court’s language in cases 
dealing with the limitations o f  judicial remedial power to suggest that 
actions taken in the present cases are unconstitutional, e.g., Freeman, 503 
U.S. at 494 (“Racial balance is not to be achieved for its own sake. It is 
to be pursued when racial imbalance has been caused by a constitutional 
violation.”), it is readily apparent that those decisions do not undermine 
the Court’s previous statements about the latitude afforded to school 
districts. “The absence o f  a duty [to desegregate] sheds little light on the 
constitutionality o f  a voluntary attempt.” Brewer, 212 F.3d at 752.



16

that ironic outcome. See Higgins v. Bd. o f  Educ. o f  Grand 
Rapids, 508 F.2d 779, 795 (6th Cir. 1974) (“An integrated 
school experience is too important to the nation’s children for 
this Court to jeopardize the opportunity for such an 
experience by constructing obstacles that would discourage 
school officials from voluntarily undertaking creative 
programs.”).

C. Voluntary K-12 School Integration Is Also
Consistent with This Court’s Emphasis on Local 
Control and Deference to School Boards

The Court’s cases encouraging public school districts to 
address racial isolation and promote racial integration 
through voluntary means also comport with the time-honored 
traditions of local control, deference to school administrators’ 
educational judgments, and respect for the political process. 
See McFarland, 330 F. Supp. 2d at 850-51 (noting that the 
“deference accorded to local school boards goes to the very 
heart of our democratic form of government”). Even at the 
height of resistance to school desegregation, this Court 
afforded formerly de jure school districts the first opportunity 
to decide how best to remedy violations before federal trial 
courts could step in, despite its frustration with the perennial 
failure of local school administrators to take the measures 
necessary to desegregate their schools. See Swann, 402 U.S. 
at 13 (summarizing history); id. at 15-16 (allocating to local 
districts the initial opportunity and responsibility to formulate 
an effective desegregation plan).

In the years following the Court’s approval of the broad 
judicial remedies in Swann, it began enlarging the goal of 
school desegregation from the unequivocal mandate to 
eliminate the vestiges of segregation “root and branch,” 
Green, 391 U.S. at 438, to include as well the “end purpose 
[of] . . . restoring] state and local authorities to the control of



17

a school system that is operating in compliance with the 
Constitution.” Freeman, 503 U.S. at 489. See, e.g., Dayton 
Bd. o f  Educ. v. Brinkman, 433 U.S. 406, 410 (1977) 
(“[LJocal autonomy of school districts is a vital national 
tradition.”). That notion of local control and deference is 
now a bedrock of public school desegregation law.

The Court has conveyed several rationales for restoration 
of local control. It has emphasized, for example, the value of 
permitting the political process to determine what kinds of 
educational policies best suit the needs of children within 
each school district. See, e.g., Freeman, 503 U.S. at 490 
(“When the school district and all state entities participating 
with it in operating the schools make decisions in the absence 
of judicial supervision, they can be held accountable to the 
citizenry, to the political process, and to the courts in the 
ordinary course.”); Dowell, 498 U.S. at 248 (“Local control 
over the education of children allows citizens to participate in 
decisionmaking, and allows innovation so that school 
programs can fit local needs.”); accord PICS, 426 F.3d at 
1195 (Kozinski, J., concurring).

In the Court’s estimation, local control also encourages 
responsiveness of local school boards to those whom they 
serve, Freeman, 503 U.S. at 490, community confidence in 
and support for the public school system, Milliken, 418 U.S. 
at 741-42, and “experimentation, innovation, and a healthy 
competition for educational excellence.” San Antonio Sch. 
Dist. v. Rodriguez, 411 U.S. 1, 50 (1973); accord Comfort, 
418 F.3d at 28 (Boudin, C.J., concurring) (citing United 
States v. Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J., 
concurring)).

Equally as often, the Court has acknowledged the value 
of local authority because of its view that judges lack the 
competence to make sensitive, pedagogical decisions best left



18

to school boards and educational experts. See, e.g., Penick, 
443 U.S. at 488; Milliken, 418 U.S. at 744. This notion is 
consistent with Justice Thomas’s recognition in Johnson v. 
California, 543 U.S. 499 (2005), at that in the prison context, 
“experienced prison administrators, and not judges, are in the 
best position to supervise the daily operations of prisons 
across this country.” Id at 529 (Thomas, J., dissenting).9

Just as it provides support for ending court supervision, 
the emphasis on local control is similarly cogent and 
applicable to school authorities’ voluntary decisions to seek 
and retain the benefits of integrated schools. As the 
McFarland court observed, “[i]t would seem rather odd that 
the concepts of equal protection, local control and limited 
deference are now only one-way streets to a particular 
educational policy, virtually prohibiting the voluntary 
continuation of policies once required by law.” 330 F. Supp. 
2d at 851. What an unfortunate path constitutional law will 
have taken if the importance of local control were invoked as 
a primary justification to dissolve court-ordered 
desegregation decrees, while unitary districts, acting in good 
faith, were not afforded the same discretion to implement 
policies that prevent a return to the kinds of segregated 
conditions that first led this Court to reach its conclusion in 
Brown.

9 Also analogous here is Justice Thomas’s observation that, in the prison 
context, the Court has given greater deference to prison officials on 
constitutional issues “regardless o f the standard o f  review that would 
apply outside prison walls.” Johnson, 543 U.S. at 530 (Thomas, J., 
dissenting). The Court has likewise consistently afforded a higher degree 
o f deference to school boards in constitutional cases to establish 
educational policies. See generally James E. Ryan, The Supreme Court 
and Public Schools, 86 Va. L. Rev. 1335 (2000) (citing cases). Indeed, if  
the Court were to deem strict scrutiny appropriate here, these cases would 
become an exception to the thrust o f  constitutional law jurisprudence 
affecting public schools.



19

II. Application Of A Rigorous Rational Basis Scrutiny 
Standard Is Appropriate Here Because It Takes 
Account Of The Relevant Differences Among K-12 
School Assignments, University Admissions, And 
True Affirmative Action Cases
Not only are affirmative action cases the wrong place for 

this Court to turn to find the historical origins of voluntary K- 
12 school integration, but those cases also provide an ill- 
fitting framework for analysis of the issues raised here. The 
differences between the two contexts — as reflected in this 
Court’s encouragement of voluntary efforts and its consistent 
rejection of any students’ right to attend “neighborhood” or 
preferred public schools, see supra I.A — are differences in 
kind and not merely degree. The Court’s constitutional test 
should likewise recognize the differences as such.

Furthermore, as a practical matter, restricting the scope of 
the constitutional inquiry here to little more than a modified 
application of the strict scrutiny principles applied in Grutter 
would do a disservice to the multitude of interests that school 
districts properly must (and actually do) weigh as they 
formulate and operate an effective student assignment plan. 
Applying rational basis scrutiny instead would allow federal 
courts to avoid the unnecessary and somewhat artificial task 
of extracting race from the interwoven web of considerations, 
while still providing them with the necessary judicial tools to 
scrutinize a challenged policy’s actual purposes and impact.

A. Race-Conscious Public School Assignments Are 
Contextually and Analytically Distinct from Racial 
Preferences in Affirmative Action Cases

Perhaps above all, Grutter teaches that “[c jontext matters 
when reviewing race-based governmental action under the 
Equal Protection Clause.” 539 U.S. at 327. We recognize 
that the similarities between this Court’s affirmative action



20

rulings and the cases at bar are sufficiently facially appealing 
to support the assumption that the test described in Grutter, 
with minor modifications, governs here. What is more, the 
courts below did an inspired job of resolving the differences 
between the two contexts while staying as faithful to strict 
scrutiny’s analytical framework as possible. See PICS, 426 
F.3d at 1172-92; McFarland, 330 F. Supp. 2d at 848-64. 
Yet, a closer examination of the issues raised by voluntary 
school integration reveals that they are entirely different from 
those in affirmative action cases. Indeed, the operative facts 
and considerations involved here share so little in common 
with the affirmative action context that application of strict 
scrutiny itself — and not merely the specific facets of it — 
has been characterized as forced and ultimately unpersuasive. 
See PICS, 426 F.3d at 1193 (Kozinski, J., concurring).

In affirmative action cases, at issue is the constitutionality 
of racial considerations in the distribution of a limited good 
or benefit, such as admission to a selective college or 
university, Gratz v. Bollinger, 539 U.S. 244, 251 (2003), a 
government contract, Adarand, 515 U.S. at 211, or public 
employment. United States v. Paradise, 480 U.S. 149, 153 
(1987). Often referred to as “zero-sum games,” these 
competitions determine who will and will not receive the 
benefit in question, regardless of the decisionmaker’s 
approach. Thus, the issue there is whether it is 
constitutionally permissible to consider race among other 
factors in evaluating merit, qualification, or cost, with the 
result of favoring some applicants over others. In short, this 
Court has used strict scrutiny where it perceived a “racial 
preference” is at issue.

On the other hand, in the context of K-12 public 
education one begins with the proposition that students are 
not entitled to attend any particular school. PICS, 426 F.3d



21

at 1181 n.21; McFarland, 330 F. Supp. 2d at 860. So long as 
school districts do not segregate students by race, see Brown, 
347 U.S. at 493, the determination of where and how to 
assign students traditionally has been one for the political 
process and school authorities to resolve. See, e.g., Johnson, 
604 F.2d at 515 (citing cases). Indeed, in the vast majority of 
school districts across the nation, no choice whatsoever is 
offered to students; they are simply assigned to a school 
based on whatever pedagogical or practical reasons the 
district might have for making those assignments.

Unlike in the affirmative action context, public primary 
and secondary education is not a limited good: by law, all 
youth of specified ages must attend school, and those who 
choose to enroll in a public system will be and are assigned 
to a school in that system. PICS, 426 F.3d at 1181; 
McFarland, 330 F. Supp. 2d at 859. In both of the districts 
in question, the schools are resourced, staffed, and funded 
through the same means, and students are taught the same 
core curriculum. Denial of a substantially equal K-12 
education is never an issue, cf, e.g., Gratz, 539 U.S. at 251, 
and petitioners do not contend that it is here.

It is true that, as with affirmative action, some degree of 
race-conscious decisionmaking occurs here. The challenged 
policies are designed to promote racial integration through 
the use of various strategies, including managed school 
choice. But every student regardless of race may request any 
of the available choice options, and at no school does 
attendance hinge on a determination of merit, qualification, 
or entitlement. Compare Grutter, 539 U.S. at 315 (noting 
that law school’s admission policy selects from qualified 
candidates based on numerous indicia of ability), with PICS, 
426 F.3d at 1181 (“[N]o assignment to any of the District’s



22

high schools is tethered to a student’s qualifications.”), and 
McFarland, 330 F. Supp. 2d at 859-60 (same).

Thus, concerns about the permissibility of perceived 
preferences or favoritism in a selective, competitive process 
do not arise here. Cf. Gratz, 539 U.S. at 270-72. Nor are the 
dangers of stigmatic harm implicated. Compare Bakke, 438 
U.S. at 298 (describing the risk of stigmatic harm that can be 
caused if affirmative action plans send the signal that 
minorities cannot succeed without “special protection”), with 
Comfort, 418 F.3d at 18 (explaining that because school 
assignments are not based on merit, there is no risk of 
causing stigmatic harm based on race).

Similarly absent are concerns that the failure to be 
assigned to a particular public school is the equivalent of 
being denied admission to the elite law school, medical, or 
undergraduate institutions in Grutter, 539 U.S. at 311; Bakke, 
438 U.S. at 269; or Gratz, 539 U.S. at 249, respectively. See 
Bakke, 438 U.S. at 301 n.39 (describing medical school 
admissions and public K-12 assignments as “wholly 
dissimilar”). Nor are these cases like Wessmann v. Gittens, 
160 F.3d 790, 791 (1st Cir. 1998), which involved a 
prestigious, selective public high school, as none of the 
schools here provides the kind of unique, competitive 
educational opportunities that would distinguish it in a 
constitutional sense from the districts’ other schools. The 
courts below, therefore, correctly concluded that the schools 
here are “basically equal.” McFarland, 330 F. Supp. 2d at 
860; PICS, 426 F.3d at 1169.

To be sure, parents and students may desire one school 
over another (they would not have identified or ranked their 
preferences otherwise), but this Court has never held that 
preference alone automatically renders the grant or denial of 
a public school assignment constitutionally significant. Thus



23

federal courts have correctly refused to recognize it as such. 
See, e.g., Hampton, 102 F. Supp. 2d at 380 n.43; Comfort v. 
Lynn Sch. Comm., 283 F. Supp. 2d 328, 364-66 (D. Mass. 
2003), a ff’d  on other grounds, 418 F.3d 1 (1st Cir. 2004), 
cert, denied, 126 S. Ct. 798 (2005).

These analytical distinctions are hardly superficial. 
Taken together, they do not merely militate in favor of slight 
modifications in application of the strict scrutiny factors, but 
rather bring into question whether the kinds of concerns this 
Court has raised in affirmative action cases should be 
implicated at all. One might even think that voluntary school 
integration policies present not a zero sum game, but rather a 
positive sum game: when a district adopts such a policy, all 
students in the system gain the benefit of an opportunity to 
attend integrated schools, which otherwise might not have 
been available for some or perhaps all of the students.

B. K-12 Student Assignment Policies are Based on a 
Balancing of Complex Educational Objectives and 
Practical Considerations that Legitimately Relate 
to and Interact with the Goal of Racial Integration

Applying rational basis scrutiny here also makes practical 
sense. Such a standard recognizes that race is rightly and 
inextricably woven into the various considerations school 
authorities must weigh in determining how best to educate 
students.10 11 To rule otherwise would be to reduce Brown

10 See Vieth v. Jubelirer, 541 U.S. 267, 306 (2004) (Court willing to 
revisit its prior holdings to develop more workable legal rules); Planned 
Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854-55 
(1992) (Court considers practicality and workability o f  rules it fashions).
11 Some o f petitioners’ arguments depend on ignoring the breadth o f  the 
varied and proper educational objectives that school systems have to 
focus exclusively on improving student achievement. Because, 
petitioners argue, racial integration does not successfully advance this 
goal, it has little or no pedagogical value. Apart from the questionable



24

from a celebrated statement of ideals to an artifact of legal 
history having little present-day value.

By definition, the task of student assignment connects 
pupils, who are potentially or actually mobile, with facilities, 
which are normally structures fixed to a geographic location. 
Every assignment-related decision — e.g., to locate, repair, 
close or expand a school facility; to establish or alter its 
grade structure; to assign or move teachers to or from the 
school; to offer a specialized or optional program at the 
school; to offer transportation to the facility; to establish a 
geographic zone for the school or open it to a choice 
attendance process — has geographic connotations and, for 
that reason, a demographic background and demographic 
consequences. School administrators are unquestionably and 
rightly aware of those characteristics and consequences. It is 
why school systems are constantly studying, inter alia, birth 
rate and survival trends to predict short- and medium-term 
capacity needs. See, e.g., Meredith v. Jefferson County 
Board o f Education (No. 05-915), Joint Appendix (“Meredith

empirical conclusion that underlies this argument, its narrow view o f the 
responsibilities o f  a public school system ignores the plethora of 
democratic, social, and civil functions o f  public K-12 schools. More than 
fifty years ago in Brown, this Court announced that compulsory public 
primary and secondary education “is the very foundation o f  good 
citizenship,” and “a principal instrument in awakening the child to 
cultural values, in preparing him for later professional training, and in 
helping him adjust normally to his environment.” 347 U.S. at 493; 
accord Plyler v. Doe, 457 U.S. 202, 221 (1982). As our society becomes 
increasingly racially and ethnically heterogeneous, such cultural and civic 
lessons are ever more vital. See PICS, 426 F.3d at 1195 (Kozinski, J., 
concurring) (“Schools, after all, don’t simply prepare students for further 
education, though they certainly can and should do that; good schools 
prepare students for life, by instilling skills and attitudes that will serve 
them long after their first year o f college.”).



25

J.A.”) at 99-103. Those data almost inevitably contain racial 
or ethnic information.

Each assignment decision, therefore, must strike a careful 
balance of pedagogical concerns and interests, some but not 
all of which implicate race. For instance, offering students 
some opportunity to choose the school they would like to 
attend — as both respondent school systems have done here 
—  serves the purpose not only of encouraging integration 
through the voluntary movement of students, but also of 
providing students with a variety of distinct yet basically 
equal educational opportunities to suit their needs. PICS, 
426 F.3d at 1169; McFarland, 330 F. Supp. 2d at 860.

Furthermore, the availability of many educational options 
might satisfy a school board’s goal of making the system as a 
whole more attractive to students, most often white and 
middle class students, who might otherwise leave the public 
schools to attend private or parochial institutions. See 
McFarland, 330 F. Supp. 2d at 854; Meredith J.A. at 104-05. 
Thus, a school district’s ability to maintain market share also 
furthers the legitimate cause of stemming the flight of these 
students. See, e.g., Ambach, 738 F.2d at 581 (recognizing 
that stemming white flight can be an important interest of 
school boards); Johnson, 604 F.2d at 516-17 (same).

Providing some specialized educational programs and 
encouraging choice among schools may reduce white flight 
from the system overall, but if unfettered, such an assignment 
strategy might also lead to further racial isolation in a handful 
of schools in a racially diverse system. McFarland, 330 F. 
Supp. 2d at 854. This fear is not an abstract one, but one of 
particular concern here, given the practical challenges of 
intense residential segregation and poverty concentration in 
the communities these school systems serve, as well as the 
history of intentional segregation in Jefferson County, which



26

brings with it a reasonable suspicion of enduring favoritism 
toward certain communities. See also Anderson v. City o f  
Boston, 375 F,3d 71, 83-84 (1st Cir. 2004).

Similarly, a school district sensitive to the messages and 
consequences of its assignment system can also help avert 
the possible neglect (or even appearance of neglect) of any 
individual schools in the district, particularly the ones that 
would otherwise become predominantly minority.12 PICS, 
426 F.3d at 1170-71. Good faith prevention of even the 
appearance of such results is of critical importance to gaining 
public confidence and preserving a school district’s unitary 
status. McFarland, 330 F. Supp. 2d at 854.

Above all else, as democratically-elected bodies, school 
boards are motivated by the proper interest of maintaining 
the ongoing support of their constituents. McFarland, 330 F. 
Supp. 2d at 854. This Court has long valued the restoration 
of local control and authority to state and local officials held 
accountable through the democratic process. See, e.g., 
Freeman, 503 U.S. at 489-90; Dowell, 498 U.S. at 247-48;

12 One critique o f  school desegregation is that it rests on the assumption 
that predominantly or overwhelmingly black institutions are inherently 
inferior because they are black. See Jenkins, 515 U.S. at 114 (Thomas, J., 
concurring). While the Court said in Brown that racially separate schools 
are inherently unequal, it is not the mere fact o f  racial identifiability that 
leads to the perception o f  racial inferiority or reality o f  racial inequality. 
Rather, it is the practical consequences o f  segregated predominantly 
minority schools —  which are statistically more likely to be centers o f  
concentrated poverty, plagued by inadequate resources, higher teacher 
turnover, lower levels o f  parent involvement, low expectations, and fewer 
curricular offerings regardless o f  any intentions or efforts o f  school 
officials, and which history has shown are susceptible to conscious or 
unconscious neglect by school districts preoccupied with satisfying their 
most vocal constituents —  that create the nexus between racial 
segregation and inferiority, real or perceived. See generally, Brief o f 553 
Social Scientists as Amici Curiae in Support o f Respondents.



27

Seattle, 458 U.S. at 481-82; Brinkman, 433 U.S. at 410; 
Milliken, 418 U.S. at 741-44; Rodriguez, 411 U.S. at 49-53. 
The success that respondent school boards have experienced 
in this regard represents a vindication of the faith this Court’s 
decisions have shown in the power of communities to deal 
with issues of race and education in the absence of a federal 
court order.13

School authorities, therefore, like state legislatures, are 
always aware of the racial demographics in the communities 
they serve. See Miller v. Johnson, 515 U.S. 900, 916 (1995). 
Thoughtful decisionmakers — especially in communities like 
Jefferson County, which has a legacy of intentional 
segregation, and in Seattle, which has an equally long history 
of struggling to overcome residential segregation — are 
inevitably and properly cognizant of the racial implications 
of their actions. See Swann, 402 U.S. at 20-21 (reciprocal 
influence of school location and neighborhood racial 
composition). And in many ways, their job requires them to 
be. See supra note 3.

For this reason, the mere fact that race is considered 
among other factors in assigning students to schools, even 
directly, should not itself trigger strict scrutiny’s search for 
an overarching constitutionally compelling motive and an 
analysis of competing models with the goal of identifying an 
alternative procedure in which race is either disregarded or

13 Results o f  surveys in Jefferson County reveal overwhelming support 
for an assignment plan that both provides the opportunity for choice and 
ensures that all o f the district’s schools are racially integrated. See 
McFarland, 330 F. Supp. 2d at 854 n.41; Meredith J.A. at 106-07. That 
the Seattle respondents have maintained a school integration plan 
voluntarily for more than four decades and now twice appeared before 
this Court to defend their policies speaks volumes o f the depth o f  
commitment to the goal o f  operating integrated schools o f successive 
school boards elected over a period of decades. PICS, 426 F.3d at 1166.



28

given less consideration. This ought be especially true where 
that alternative may significantly impede the realization of 
the many other purposes of student assignment.

In the end, this Court need not involve itself in the 
difficult task of judging the extent to which every possible 
consideration of race — artificially separated from the truly 
complex web of pedagogical goals and motivations that drive 
student assignment policies — is compelling or indispensable 
to the whole of its assignment plan. See Adarand, 515 U.S. 
at 223 (requiring, in the context of affirmative action, “a most 
searching examination”). The Equal Protection Clause does 
not require that level of unwarranted intrusion into the 
educational and democratic process here. Rather, the Court 
should take a more holistic, unencumbered view of the 
challenged policies, recognizing the many interests that they 
properly serve. Rational basis review, not strict scrutiny, 
permits it to do so.

While such a standard would honor the traditions of local 
control and deference this Court has long valued, it would 
not leave the actions of school officials unchecked. The 
muscular rational basis test Judge Kozinski described and we 
propose is familiar to the Court and capable of safeguarding 
against violations of the Fourteenth Amendment. See, e.g., 
Romer v. Evans, 517 U.S. 620 (1996); City o f  Cleburne v. 
Cleburne Living Center, Inc., 473 U.S. 432 (1985); see also 
Johnson, 543 U.S. at 547 (Thomas, J., dissenting) (“[Tjhis 
Court has long had ‘confidence that . . .  a reasonableness 
standard is not toothless.’”) (quoting Thornburgh v. Abbott, 
490 U.S. 401, 414 (1989)).

Under this standard, federal courts would be able to 
“consider the actual reasons for the plan in light of the real- 
world circumstances that gave rise to it,” requiring a 
sufficient connection between the two but declining to



29

speculate about other possible justifications. See PICS, 426 
F.3d at 1194 (Kozinski, J., concurring); see also Romer, 517 
U.S. at 635 (closely examining stated rationales for 
Colorado’s constitutional amendment and results that would 
flow from its implementation to conclude that it “classifies 
homosexuals not to further a proper legislative end but to 
make them unequal to everyone else”).

Thus, as applied here, it would require a thorough inquiry 
into both the school systems’ objectives and the extent to 
which the features of the plans actually operate to further 
those objectives. It would be fully adequate to avoid the 
evils that strict scrutiny is intended to “smoke out,” Croson, 
488 U.S. at 488, and to avoid pretextual claims of benign 
intentions or efforts to disadvantage one group at the expense 
of another. Yet, it would do so without excessively deterring 
school districts from undertaking to achieve and operate 
diverse, integrated schools and programs that have long 
received the approbation of this Court, recognizing that 
voluntary school integration is “far from the original evils at 
which the Fourteenth Amendment was addressed,” Comfort, 
418 F.3d at 29 (Boudin, C.J., concurring).

CONCLUSION
As a nation, we honor Brown v. Board o f  Education as 

one of our most important constitutional decisions. In post- 
“unitary status” and “de facto” segregated public school 
systems, all that is left of Brown is voluntary integration.

These cases present the question whether it will be 
constitutional to consciously preserve and pursue the soul of 
desegregated education enshrined in Brown and its progeny. 
The Orwellian argument that voluntary integration efforts 
constitute racial discrimination in violation of the Fourteenth



30

Amendment’s Equal Protection Clause, if validated by this 
Court, would be an unwarranted and tragic reversal of 
historic proportions. Nothing in law or in logic requires or 
supports such a course of action.

This Court should apply a rigorous rational basis review 
of respondents’ challenged voluntary integration plans and 
affirm the judgments below.

Respectfully submitted,

♦ T h e o d o r e  M . S h a w ,
D ir e c t o r  C o u n s e l  

Ja c q u e l in e  A. B e r r ie n  
N o r m a n  J. C h a c h k in  
V ic t o r  A. B o l d e n  
A n u r im a  B h a r g a v a  
M a t t h e w  C o l a n g e l o  
NAACP L e g a l  D e f e n s e  &  

E d u c a t io n a l  F u n d , In c .
99 H u d s o n  S t r e e t , S u it e  1600 
N e w  Y o r k , N Y  10013 
(212) 965-2200

Chinh Q. Le 
Jenner & Block LLP 
919 Third Avenue 
37th Floor 
New York, NY 10022 
(212)891-1628

David T. Goldberg 
99 Hudson Street, 8th Floor 
New York, NY 10013 
(212)334-8813

October 10, 2006 * Counsel o f Record