Samuel Anthony Alito, Jr.
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In June, 2007, Justice Alito concurred in the plurality opinion authored by Chief Justice John Roberts in Parents Involved in Community Schools v. Seattle School District No. 1.
The school districts at issue voluntarily adopted student assignment plans that relied upon race to determine which public schools certain children may attend. The Seattle school district classified children as white or nonwhite, and the Jefferson County (Louisvile, KY) school district as black or “other.” In Seattle, this racial classification was used to allocate slots in oversubscribed high schools. In Jefferson County, it was used to make certain elementary school assignments and to rule on transfer requests. In each case, the school districts relied upon an individual student's race in assigning that student to a particular school, so that the racial balance at the school fell within a predetermined range based on the racial composition of the school district as a whole. Parents of students denied assignment to particular schools under these plans solely because of their race brought suit, contending that allocating children to different public schools on the basis of race violated the Fourteenth Amendment guarantee of equal protection.
At issue was whether it was constutionally permissible for a public school district, and particularly those that had not operated segregated schools in the past, to (1) classify students by race and (2) rely upon such racial classifications in making school assignments.
In concuring in Justice Roberts' decision, Justice Alito endorsed the following positions:
Here the racial balance the districts seek is a defined range set solely by reference to the demographics of the respective school districts. This working backward to achieve a particular type of racial balance, rather than working forward from some demonstration of the level of diversity that provides the purported benefits, is a fatal flaw under our existing precedent. We have many times over reaffirmed that “[r]acial balance is not to be achieved for its own sake.” Freeman, 503 U.S., at 494, 112 S.Ct. 1430. See also Richmond v. J.A. Croson Co., 488 U.S. 469, 507, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989); Bakke, 438 U.S., at 307, 98 S.Ct. 2733 (opinion of Powell, J.) (“If petitioner's purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected ... as facially invalid”). Grutter itself reiterated that “outright racial balancing” is “patently unconstitutional.” 539 U.S., at 330, 123 S.Ct. 2325.
Accepting racial balancing as a compelling state interest would justify the imposition of racial proportionality throughout American society, contrary to our repeated recognition that “[a]t the heart of the Constitution's guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.” Miller v. Johnson, 515 U.S. 900, 911, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995) (quoting Metro Broadcasting, 497 U.S., at 602, 110 S.Ct. 2997 (O'Connor, J., dissenting); internal quotation*2758 marks omitted).FN14 Allowing racial balancing as a compelling end in itself would “effectively assur[e] that race will always be relevant in American life, and that the ‘ultimate goal’ of ‘eliminating entirely from governmental decisionmaking such irrelevant factors as a human being's race’ will never be achieved.” Croson, supra, at 495, 109 S.Ct. 706 (plurality opinion of O'Connor, J.) (quoting Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 320, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) (STEVENS, J., dissenting), in turn quoting Fullilove, 448 U.S., at 547, 100 S.Ct. 2758 (STEVENS, J., dissenting); brackets and citation omitted). An interest “linked to nothing other than proportional representation of various races ... would support indefinite use of racial classifications, employed first to obtain the appropriate mixture of racial views and then to ensure that the [program] continues to reflect that mixture.” Metro Broadcasting, supra, at 614, 110 S.Ct. 2997 (O'Connor, J., dissenting).
The principle that racial balancing is not permitted is one of substance, not semantics. Racial balancing is not transformed from “patently unconstitutional” to a compelling state interest simply by relabeling it “racial diversity.” While the school districts use various verbal formulations to *2759 describe the interest they seek to promote-racial diversity, avoidance of racial isolation, racial integration-they offer no definition of the interest that suggests it differs from racial balance.
Jefferson County phrases its interest as “racial integration,” but integration certainly does not require the sort of racial proportionality reflected in its plan. Even in the context of mandatory desegregation, we have stressed that racial proportionality is not required, see Milliken, 433 U.S., at 280, n. 14, 97 S.Ct. 2749 (“[A desegregation] order contemplating the substantive constitutional right [to a] particular degree of racial balance or mixing is ... infirm as a matter of law” (internal quotation marks omitted)); Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 24, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) (“The constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole”), and here Jefferson County has already been found to have eliminated the vestiges of its prior segregated school system.
Justice BREYER speaks of bringing “the races” together (putting aside the purely black-and-white nature of the plans), as the justification for excluding individuals on the basis of their race.) See post, at 2815 - 2816. Again, this approach to racial classifications is fundamentally at odds with our precedent, which makes clear that the Equal Protection Clause “protect[s] persons, not groups,” Adarand, 515 U.S., at 227, 115 S.Ct. 2097 (emphasis in original). See ibid. (“[A]ll governmental action based on race-a group classification long recognized as ‘in most circumstances irrelevant and therefore prohibited,’ Hirabayashi [ v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943) ]-should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed” (first emphasis in original); Metro Broadcasting, supra, at 636, 110 S.Ct. 2997 (“[O]ur Constitution protects each citizen as an individual, not as a member of a group” (KENNEDY, J., dissenting)); Bakke, supra, at 289, 98 S.Ct. 2733 (opinion of Powell, J.) (Fourteenth Amendment creates rights “guaranteed to the individual. The rights established are personal rights”). This fundamental principle goes back, in this context, to Brown itself. See Brown v. Board of Education, 349 U.S. 294, 300, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) ( Brown II ) (“At stake is the personal interest of the plaintiffs in admission to public schools ... on a nondiscriminatory basis” (emphasis added)). For the dissent, in contrast, “ ‘individualized scrutiny’ is simply beside the point.” Post, at 2829 - 2830.
Simply because the school districts may seek a worthy goal does not mean they are free to discriminate on the basis of race to achieve it, or that their racial classifications should be subject to less exacting scrutiny.
If the need for the racial classifications embraced by the school districts is unclear, even on the districts' own terms, the costs are undeniable. “[D]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Adarand, 515 U.S., at 214, 115 S.Ct. 2097 (internal quotation marks omitted). Government action dividing us by race is inherently suspect because such classifications promote “notions of racial inferiority and lead to a politics of racial hostility,” Croson, supra, at 493, 109 S.Ct. 706, “reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin,” Shaw v. Reno, 509 U.S. 630, 657, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993), and “endorse race-based reasoning and the conception of a Nation divided into racial blocs, thus contributing to an escalation of racial hostility and conflict.” Metro Broadcasting, 497 U.S., at 603, 110 S.Ct. 2997 (O'Connor, J., dissenting). As the Court explained in Rice v. Cayetano, 528 U.S. 495, 517, 120 S.Ct. 1044, 145 L.Ed.2d 1007 (2000), “[o]ne of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.”
The parties and their amici debate which side is more faithful to the heritage of Brown, but the position of the plaintiffs in Brown was spelled out in their brief and could not have been clearer: “[T]he Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their color or race.” Brief for Appellants in Nos. 1, 2, and 4 and for Respondents in No. 10 on Reargument in Brown I, O.T.1953, p. 15 (Summary of Argument). What do the racial classifications at issue here do, if not accord differential treatment on the basis of race? As counsel who appeared before this Court for the plaintiffs in Brown put it: “We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in *2768 affording educational opportunities among its citizens.” Tr. of Oral Arg. in Brown I, p. 7 (Robert L. Carter, Dec. 9, 1952). There is no ambiguity in that statement. And it was that position that prevailed in this Court, which emphasized in its remedial opinion that what was “[a]t stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis,” and what was required was “determining admission to the public schools on a nonracial basis.” Brown II, supra, at 300-301, 75 S.Ct. 753 (emphasis added). What do the racial classifications do in these cases, if not determine admission to a public school on a racial basis?
