Clarence Thomas

“ Although there is arguably a danger of racial imbalance in schools in Seattle and Louisville, there is no danger of resegregation. No one contends that Seattle has established or that Louisville has reestablished a dual school system that separates students on the basis of race. The statistics cited in Appendix A to the dissent are not to the contrary. See post, at 869–872. At most, those statistics show a national trend toward classroom racial imbalance. However, racial imbalance without intentional state action to separate the races does not amount to segregation. ”

“ See Plessy, 163 U.S., at 559 (Harlan, J., dissenting) ("The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time.... But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens.... Our Constitution is color-blind, and neither knows nor tolerates classes among citizens") . ”

“ Although no such distinction is apparent in the Fourteenth Amendment, the dissent would constitutionalize today's faddish social theories that embrace that distinction. The Constitution is not that malleable. Even if current social theories favor classroom racial engineering as necessary to "solve the problems at hand," post, at 822, the Constitution enshrines principles independent of social theories. ”

“ In my view, to defer to one's preferred result is not to defer at all.↑ . The notion that a "democratic" interest qualifies as a compelling interest (or constitutes a part of a compelling interest) is proposed for the first time in today's dissent and has little basis in the Constitution or our precedent, which has narrowly restricted the interests that qualify as compelling. See Grutter v. Bollinger, 539 U.S. 306, 351–354 (2003) (Thomas, J., concurring in part and dissenting in part) . The Fourteenth Amendment does not enact the dissent's newly minted understanding of liberty. ”

“ Racial imbalance is not segregation, and the mere incantation of terms like resegregation and remediation cannot make up the difference.
A Because this Court has authorized and required race-based remedial measures to address de jure segregation, it is important to define segregation clearly and to distinguish it from racial imbalance. In the context of public schooling, segregation is the deliberate operation of a school system to "carry out a governmental policy to separate pupils in schools solely on the basis of race." ”

“ Given this tenuous relationship between forced racial mixing and improved educational results for black children, the dissent cannot plausibly maintain that an educational element supports the integration interest, let alone makes it compelling. ”

“ County School Board, O. T. 1953, No. 4, p. 37 ("Yet a holding that school segregation by race violates the Constitution will result in upheaval in all of those places not now subject to Federal judicial scrutiny. This Court has made many decisions of widespread effect; none would affect more people more directly in more fundamental interests and, in fact, cause more chaos in local government than a reversal of the decision in this case") . [23] And foreshadowing today's dissent, the segregationists most heavily relied upon judicial precedent. ”

“ By the dissent's account, improvements in racial attitudes depend upon the increased contact between black and white students thought to occur in more racially balanced schools. There is no guarantee, however, that students of different races in the same school will actually spend time with one another. Schools frequently group students by academic ability as an aid to efficient instruction, but such groupings often result in classrooms with high concentrations of one race or another. ”

“ C As the foregoing demonstrates, racial balancing is sometimes a constitutionally permissible remedy for the discrete legal wrong of de jure segregation, and when directed to that end, racial balancing is an exception to the general rule that government race-based decisionmaking is unconstitutional. Perhaps for this reason, the dissent conflates the concepts of segregation and racial imbalance: If racial imbalance equates to segregation, then it must also be constitutionally acceptable to use racial balancing to remedy racial imbalance. ”

“ Today, almost 50 years later, attitudes toward race in this Nation have changed dramatically. Many parents, white and black alike, want their children to attend schools with children of different races. Indeed, the very school districts that once spurned integration now strive for it. ”

“ Today, the Court holds that state entities may not experiment with race-based means to achieve ends they deem socially desirable. I wholly concur in The Chief Justice's opinion. I write separately to address several of the contentions in Justice Breyer's dissent (hereinafter dissent) . Contrary to the dissent's arguments, resegregation is not occurring in Seattle or Louisville; these school boards have no present interest in remedying past segregation; and these race-based student-assignment programs do not serve any compelling state interest. ”

“ The dissent asserts that racially balanced schools improve educational outcomes for black children. In support, the dissent unquestioningly cites certain social science research to support propositions that are hotly disputed among social scientists. In reality, it is far from apparent that coerced racial mixing has any educational benefits, much less that integration is necessary to black achievement.
Scholars have differing opinions as to whether educational benefits arise from racial balancing. Some have concluded that black students receive genuine educational benefits. ”

“ However, the actual hard-won gain in these cases is the elimination of the vestiges of the system of state-enforced racial separation that once existed in Louisville. To equate the achievement of a certain statistical mix in several schools with the elimination of the system of systematic de jure segregation trivializes the latter accomplishment. Nothing but an interest in classroom aesthetics and a hypersensitivity to elite sensibilities justifies the school districts' racial balancing programs. ”

“ Is it not the height of wisdom that the manner in which that shall be conducted should be left to those most immediately affected by it, and that the wishes of the parents, both white and colored, should be ascertained before their children are forced into what may be an unwelcome contact? ”

“ If a school district has an interest in teaching racial understanding and cooperation, there is no logical reason why that interest should not extend to the composition of the teaching staff as well as the composition of the student body. The dissent's reliance on this interest is, therefore, inconsistent with Wygant.↑ . Outside the school context, this Court's cases reflect the fact that racial mixing does not always lead to harmony and understanding. ”

“ Evidence that race is a good proxy for other factors that might be correlated with educational benefits does not support a compelling interest in the use of race to achieve academic results.↑ . Of course, if the Seattle School Board were truly committed to the notion that diversity leads directly to educational benefits, operating a school with such a high "nonwhite" enrollment would be a shocking dereliction of its duty to educate the students enrolled in that school.↑ . ”

“ In fact, the available data from the Seattle school district appear to undercut the dissent's view. A comparison of the test results of the schools in the last year the racial balancing program operated to the results in the 2004-to-2005 school year (in which student assignments were race neutral) does not indicate the decline in black achievement one would expect to find if black achievement were contingent upon a particular racial mix. ”

“ Perhaps desegregation does not have a single effect, positive or negative, on the academic achievement of African American students, but rather some strategies help, some hurt, and still others make no difference whatsoever. ”

“ Racial imbalance is the failure of a school district's individual schools to match or approximate the demographic makeup of the student population at large. Cf. Washington [p. 750] v. Seattle School Dist. No. 1, 458 U.S. 457, 460 (1982) . Racial imbalance is not segregation. [2] Although presently observed racial imbalance might result from past de jure segregation, racial imbalance can also result from any number of innocent private decisions, including voluntary housing choices. See Swann, supra, at 25–26 ”

“ How does one tell when a racial classification is invidious? The segregationists in Brown argued that their racial classifications were benign, not invidious. See Tr. of Oral Arg. in Briggs v. Elliott et al., O. T. 1953, No. 2 etc., at 83 ("It [South Carolina] is confident of its good faith and intention to produce equality for all of its children of whatever race or color. It is convinced that the happiness, the progress and the welfare of these children is best promoted in segregated schools") ; Brief for Appellees on Reargument in Davis v. ”

“ See, e. g., Brief for Appellees on Reargument in Briggs v. Elliott, O. T. 1953, No. 2, at 59 (" [I] t would be difficult indeed to find a case so favored by precedent as is the case for South Carolina here") . [24]
[p. 777] The similarities between the dissent's arguments and the segregationists' arguments do not stop there. Like the dissent, the segregationists repeatedly cautioned the Court to consider practicalities and not to embrace too theoretical a view of the Fourteenth Amendment. ”

“ As these programs demonstrate, every time the government uses racial criteria to "bring the races together," post, at 829, someone gets excluded, and the person excluded suffers an injury solely because of his or her race. The petitioner in the Louisville case received a letter from the school board informing her that her kindergartner would not be allowed to attend the school of petitioner's choosing because of the child's race. ”

“ And " [p] referring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake." Bakke, 438 U.S., at 307 (opinion of Powell, J.) . "This the Constitution forbids." Ibid.; Grutter, supra, at 329–330; Freeman, 503 U.S., at 494.
Navigating around that inconvenient authority, the dissent argues that the racial balancing in these plans is not an end in itself but is instead intended to "teac [h] children to engage in the kind of cooperation among Americans of all races that is necessary to make a land of 300 million people one Nation." ”

“ See Swann, 402 U.S., at 31. Unlike de jure segregation, there is no ultimate remedy for racial imbalance. Individual schools will fall in and out of balance in the natural course, and the appropriate balance itself will shift with a school district's chang- [p. 757] ing demographics. Thus, racial balancing will have to take place on an indefinite basis—a continuous process with no identifiable culpable party and no discernable end point. In part for those reasons, the Court has never permitted outright racial balancing solely for the purpose of achieving a particular racial balance. ”