Order Code RL33965
The Constitution and Racial Diversity in
Elementary and Secondary Education: A Legal
Analysis of Pending Supreme Court Cases
April 13, 2007
Jody Feder
Legislative Attorney
American Law Division

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The Constitution and Racial Diversity in Elementary and
Secondary Education: A Legal Analysis of Pending
Supreme Court Cases
Summary
The diversity rationale for affirmative action in public education has long been
a topic of political and legal controversy. Many colleges and universities have
established affirmative action policies not only to remedy past discrimination, but
also to achieve a racially and ethnically diverse student body or faculty. Although the
Supreme Court has recognized that the use of race-based policies to promote
diversity in higher education may be constitutional in two recent cases involving the
University of Michigan’s admissions policies, the Court has never considered
whether diversity is a constitutionally permissible goal in the elementary and
secondary education setting. To resolve this question, the Supreme Court agreed to
review two cases that involve the use of race to maintain racially diverse public
schools. Specifically, the Court will consider whether the school plans at issue violate
the equal protection guarantee of the Fourteenth Amendment. The cases are Meredith
v. Jefferson County Board of Education and Parents Involved in Community Schools
v. Seattle School District No. 1, and the Court’s decision is expected to be issued
during its 2006-2007 term. This report provides an overview of the lower court
decisions in the two cases, coupled with a discussion of the factors that the Supreme
Court is likely to consider on review.

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Contents
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background in Pending Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Past Supreme Court Cases Involving Racial Diversity in Public
Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
The Bakke Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
The Grutter Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
The Gratz Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
II. Supreme Court Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Equal Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Meredith v. Jefferson County Board of Education . . . . . . . . . . . . . . . . . . . . 8
Parents Involved in Community Schools v. Seattle School District No. 1 . . 11
III. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

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The Constitution and Racial Diversity in
Elementary and Secondary Education: A
Legal Analysis of Pending Supreme Court
Cases
I. Introduction
The diversity rationale for affirmative action in public education has long been
a topic of political and legal controversy. Many colleges and universities have
established affirmative action policies not only to remedy past discrimination, but
also to achieve a racially and ethnically diverse student body or faculty. Although the
Supreme Court has recognized that the use of race-based policies to promote
diversity in higher education may be constitutional in two recent cases involving the
University of Michigan’s admissions policies — namely Grutter v. Bollinger and
Gratz v. Bollinger1 — the Court has never considered whether diversity is a
constitutionally permissible goal in the elementary and secondary education setting.2
To resolve this question, the Supreme Court agreed to review two cases that
involve the use of race to maintain racially diverse public schools. Specifically, the
Court will consider whether the school plans at issue violate the equal protection
guarantee of the Fourteenth Amendment. The cases are Meredith v. Jefferson County
Board of Education — formerly MacFarland v. Jefferson County Public Schools —
and Parents Involved in Community Schools v. Seattle School District No. 1,3 and the
Court’s decision is expected to be issued during its 2006-2007 term. This report
provides an overview of the lower court decisions in the two cases, coupled with a
discussion of the factors that the Supreme Court is likely to consider on review.
Background in Pending Cases
In MacFarland v. Jefferson County Public Schools,4 issued on the first
anniversary of the University of Michigan decisions and the 50th anniversary of
Brown v. Board of Education, a federal district court in Kentucky upheld a Louisville
1 539 U.S. 306 (2003); 539 U.S. 244 (U.S. 2003).
2 For more information on affirmative action and diversity in higher education, see CRS
Report RL30410, Affirmative Action and Diversity in Public Education: Legal
Developments, by Jody Feder.
3 416 F.3d 513 (6th Cir. 2003) (per curiam), cert. granted, 126 S. Ct. 2351 (U.S. 2006); 426
F.3d 1162 (9th Cir. 2005) (en banc), cert. granted, 126 S. Ct. 2351 (U.S. 2006).
4 330 F. Supp. 2d 834 (W.D.Ky. 2004).

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district’s voluntary consideration of race in making student assignments to achieve
racial integration in the public schools. Jefferson County Public Schools (JCPS) were
ordered by judicial decree to desegregate in 1975. Under the desegregation plan, each
school was to have between 15% and 50% African-American enrollment and
students were bused, if necessary, to ensure racial diversity. Twenty-five years later,
in 2000, the federal courts ended their supervision of the desegregation plan, but the
JCPS voluntarily opted to maintain its integrated schools through a “managed
choice” plan that involved consideration of geographic boundaries, special programs,
and school choice, as well as race. The plan was challenged in a lawsuit in 2000 by
black parents whose children were denied admission to Central High School, which
was already at the upper percentage limit for minority enrollment. The district court
upheld the school plan, finding that the managed choice plan served numerous
compelling state interests, many of which were similar to interests upheld by the
Supreme Court in Grutter, and that the student assignment plan was narrowly
tailored in all respects but one, which the district was required to revise.5 For reasons
“articulated in the well-reasoned opinion of the district court,” the Sixth Circuit
summarily affirmed the district court’s decree without issuing a detailed written
opinion.6
Meanwhile, in Parents Involved in Community Schools v. Seattle School District
No. 1,7 the Ninth Circuit applied Grutter and Gratz to approve a school district’s plan
to maintain racially diverse schools. Under Seattle’s “controlled choice” high school
student assignment plan, students were given the option to attend high schools across
the district, but if the demand for seats exceeded the supply at a particular school, a
student’s race was considered as a tie-breaker in determining admittance to the
oversubscribed school. The racial tie-breaker applied only to schools whose student
bodies deviated by more than 15 percentage points from the overall racial makeup
of the district, then “approximately 40% white and 60% nonwhite.” The Seattle plan
was voluntarily adopted to “achiev[e] diversity [and] limit racial isolation” in the
schools, not as a part of a desegregation remedy.
In an en banc decision, the Ninth Circuit ruled that the school district had a
compelling interest in the educational and social benefits of racial diversity and in
avoiding racially concentrated or isolated schools. Further, the court held that the
district’s plan was sufficiently narrowly tailored to pass constitutional muster. The
ruling reversed an earlier three-judge appellate panel’s contrary decision that the
school district’s plan to maintain racially diverse schools was not sufficiently narrowly
tailored.8
As noted above, the Supreme Court recently granted review in MacFarland v.
Jefferson County Public Schools — now Meredith v. Jefferson County Board of
Education — and Parents Involved in Community Schools v. Seattle School District
No. 1 to consider the question of what steps a public school district may take to
5 Id. at 837.
6 McFarland v. Jefferson County Pub. Schs., 416 F.3d 513 (6th Cir. 2003).
7 426 F. 3d 1162 (9th Cir. 2005) (en banc).
8 Parents Involved in Cmty. Sch. v. Seattle Sch. Dist., No. 1, 377 F.3d 949 (9th Cir. 2004).

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maintain racial diversity in elementary and secondary schools. The Court’s decision
is expected to be issued at some point during its 2006-2007 term.
Past Supreme Court Cases Involving Racial Diversity in Public
Education
The Supreme Court has considered the constitutionality of school plans to
promote racial diversity on three separate occasions. In all three of these cases,
however, the Court has considered the issue in the context of higher education.
Although the Court has never considered racial diversity plans in an elementary and
secondary education setting, the Court’s reasoning in its three higher education cases
is certain to guide review of Meredith and Parents Involved in Community Schools.
The three cases — Regents of the University of California v. Bakke,9 Grutter v.
Bollinger, and Gratz v. Bollinger — are described below.
The Bakke Decision.
The Bakke ruling in 1978 launched the contemporary constitutional debate over
state-sponsored affirmative action. The notion that diversity could rise to the level of
a compelling constitutional interest in the educational setting sprang more than a
quarter century ago from Justice Powell’s opinion in the case. While concluding that
a state medical school could not set-aside a certain number of seats for minority
applicants, Justice Powell opined that a diverse student body may serve educators’
legitimate interest in promoting the “robust” exchange of ideas. He cautioned,
however, that “[t]he diversity that furthers a compelling state interest encompasses a
far broader array of qualifications and characteristics of which ethnic origin is but a
single though important element.”10
A “notable lack of unanimity” was evident from the six separate opinions filed
in Bakke. Justice Powell split the difference between two four-Justice pluralities in the
case. One camp, led by Justice Stevens, struck down the admissions quota on statutory
civil rights grounds. Another led by Justice Brennan would have upheld the medical
school’s policy as a remedy for societal discrimination. Justice Powell held the “dual
admissions” procedure to be unconstitutional, and ordered Bakke’s admission. But,
he concluded, that the state’s interest in educational diversity could warrant
consideration of students’ race in certain circumstances. For Justice Powell, a diverse
student body fostered the “robust” exchange of ideas and academic freedom deserving
of constitutional protection.
Justice Powell’s theory of diversity as a compelling governmental interest did not
turn on race alone. He pointed with approval to the “Harvard Plan,” which defined
diversity in terms of a broad array of factors and characteristics. Thus, an applicant’s
race could be deemed a “plus” factor. It was considered on a par with personal talents,
leadership qualities, family background, or any other factor contributing to a diverse
9 438 U.S. 265 (U.S. 1978).
10 Id. at 315.

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student body. However, the race of a candidate could not be the “sole” or
“determinative” factor. No other Justice joined in the Powell opinion.
Although Justice Powell’s opinion announced the judgment of the Court, no
other Bakke Justices joined him on that point. Justice Powell ruled the “dual
admission program” at issue to be unconstitutional and the white male plaintiff
entitled to admission, while four other Justices reached the same result on statutory
rather than constitutional grounds. Another four Justice plurality concluded that the
challenged policy was lawful, but agreed with Justice Powell that the state court had
erred by holding that an applicant’s race could never be taken into account. Only
Justice Powell, therefore, expressed the view that the attainment of a diverse student
body could be a compelling state interest.
For nearly two decades, colleges and universities relied on the Powell opinion
in Bakke to support race-conscious student diversity policies, although there was some
disagreement among federal appeals courts regarding the meaning and application of
the ruling. The judicial divide over Bakke’s legacy was vividly underscored by a pair
of separate trial court decisions, one upholding for diversity reasons the race-based
undergraduate admissions policy of the University of Michigan,11 the other voiding
a special minority law school admissions program at the same institution.12
Restoring a degree of clarity to the law, the Supreme Court concluded its 2002-
03 term with rulings in the Michigan cases. In Grutter v. Bollinger,13 a 5 to 4 majority
of the Justices held that the University of Michigan Law School had a “compelling”
interest in the “educational benefits that flow from a diverse student body,” which
justified its consideration of race in admissions to assemble a “critical mass” of
“underrepresented” minority students. But in a companion decision, Gratz v.
Bollinger,14 six Justices decided that the University of Michigan’s policy of awarding
“racial bonus points” to minority applicants was not “narrowly tailored” enough to
pass constitutional scrutiny.
The Grutter Decision.
Generally setting the bar for admission to the Michigan Law School was a
“selection index” based on applicants’ composite LSAT score and undergraduate
GPA. A 1992 policy statement, however, made an explicit commitment to “racial and
ethnic diversity,” seeking to enroll a “critical mass” of black, Mexican-American, and
Native American students. The objective was to enroll minority students in sufficient
numbers to enable their participation in classroom discussions without feeling
“isolated or like spokesmen for their race.” To foster, “distinctive perspectives and
experiences,” admission officers consider a range of “soft variables” — e.g., talents,
11 Gratz v. Bollinger, 122 F.Supp.2d 811 (E.D.Mich. 2000).
12 Grutter v. Bollinger, 137 F. Supp. 2d 821, 848 ( E.D. Mich. 2001) (concluding that “Bakke
does not stand for the proposition that a university’s desire to assemble a racially diverse
student body is a compelling state interest”).
13 539 U.S. 306 (2003).
14 539 U.S. 244 (2003).

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interests, experiences, and “underrepresented minority” status — in their admissions
decisions. In the course of each year’s admissions process, the record showed,
minority admission rates were regularly reported to track “the racial composition of
the developing class.” The 1992 policy replaced an earlier “special admissions
program,” which set a written goal of 10-12% minority enrollment and lower
academic requirements for those groups.
A notable aspect of the Grutter majority opinion was the degree to which it
echoed the Powell rationale from Bakke. Indeed, the majority quoted extensively from
Justice Powell’s opinion, finding it to be the “touchstone for constitutional analysis
of race-conscious admissions policies.” Overarching much of the Court’s reasoning
were two paramount themes, both of which drew considerable criticism from the
dissent. First, in applying “strict scrutiny” to the racial aspects of the Law School
admissions program, the Court stressed the situational nature of constitutional
interpretation, taking “relevant differences into account.” Thus, the majority opined,
“[c]ontext matters when reviewing race-based governmental action” for equal
protection purposes and “[n]ot every decision influenced by race is equally
objectionable,” but may depend upon “the importance and the sincerity of the reasons
advanced by the governmental decisionmaker” for that particular use of race. Second,
and equally significant, was the deference accorded to the judgment of educational
decisionmakers in defining the scope of their academic mission, even in regard to
matters of racial and ethnic diversity. “[U]niversities occupy a special niche in our
constitutional tradition,” the Court stated, such that “[t]he Law School’s educational
judgment . . .that diversity is essential to its educational mission is one to which we
defer.” Institutional “good faith” would be “presumed” in the absence of contrary
evidence. One group of dissenters took particular exception to what it viewed as “the
fundamentally flawed proposition that racial discrimination can be contextualized” —
deemed “compelling” for one purpose but not another — or that strict scrutiny permits
“any sort of deference” to “the Law School’s conclusion that its racial experimentation
leads to educational benefits.” Indeed, the dissenters found such deference to be
“antithetical” to the level of searching review demanded by strict scrutiny.
Satisfied that the Law School had “compelling” reasons for pursuing a racially
diverse student body, the Court moved to the second phase of strict scrutiny analysis.
“Narrow tailoring,” as noted, requires a close fit between “means” and “end” when the
state draws any distinction based on race. In Grutter, the concept of “critical mass”
won the majority’s approval as “necessary to further its compelling interest in securing
the educational benefits of a diverse student body.” According to the Court:
We find that the Law School’s admissions program bears the hallmarks of a
narrowly tailored plan. As Justice Powell made clear in Bakke, truly
individualized consideration demands that race be used in a flexible,
nonmechanical way. It follows from this mandate that universities cannot
establish quotas for members of certain racial groups or put members of those
groups on separate admissions tracks. Nor can universities insulate applicants who
belong to certain racial or ethnic groups from the competition for admission.
Universities can, however, consider race or ethnicity more flexibly as a “plus”
factor in the context of individualized consideration of each and every applicant.
The Court drew a key distinction between forbidden “quotas” and permitted “goals,”
exonerating the Law School’s admission program from constitutional jeopardy. The

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majority observed that both approaches pay “some attention to numbers.” But while
the former are “fixed” and “reserved exclusively for certain minority groups,” the
opinion continues, the Law School’s “goal of attaining a critical mass” of minority
students required only a “good faith effort” by the institution. In addition, minority
Law School enrollment between 1993 and 2000 varied from 13.5 to 20.1 percent, “a
range inconsistent with a quota.” In a separate dissent, the Chief Justice objected that
the notion of a “critical mass” was a “sham,” or subterfuge for “racial balancing,”
since it did not explain disparities in the proportion of the three minority groups
admitted under its auspices.
Other factors further persuaded the Court that the Law School admissions process
was narrowly tailored. By avoiding racial or ethnic “bonuses,” the policy permitted
consideration of “all pertinent elements of diversity,” racial and nonracial, in “a highly
individualized, holistic review of each applicant’s file.” The Court also found that
“race neutral alternatives” had been “sufficiently considered” by the Law School,
although few specific examples are provided. Importantly, however, the opinion
makes plain that “exhaustion” of “every conceivable alternative” is not
constitutionally required, only a “serious good faith consideration of workable race-
neutral alternatives that will achieve the diversity the university seeks.” Consequently,
the Law School was not required to consider a lottery or lowering of traditional
academic benchmarks — GPA and LSAT scores — for all applicants since “these
alternatives would require a dramatic sacrifice of diversity, the academic quality of all
admitted students, or both.” And, because the admissions program was based on
individual assessment of all pertinent elements of diversity, it did not “unduly burden”
non-minority applicants. Nonetheless, the Court emphasized the need for “reasonable
durational provisions,” and “periodic reviews” by institutions conducting such
programs. To drive home the point, the majority concluded with a general admonition.
“We expect that 25 years from now, the use of racial preferences will no longer be
necessary to further the interest approved today.”
The Gratz Decision.
Undergraduate admission to the University of Michigan had been based on a
point system or “student selection index.” A total possible 150 points could be
awarded for factors, academic and otherwise, that made up the selection index.
Academic factors accounted for up to 110 points, including 12 for standardized test
performance. By comparison, 20 points could be awarded for one, but only one, of the
following: membership in an underrepresented minority group, socioeconomic
disadvantage, or athletics. Applicants could receive one to four points for “legacy” or
alumni relationships, three points for personal essay, and five points for community
leadership and service, six points for in-state residency, etc. In practice, students at the
extremes of academic performance were typically admitted or rejected on that basis
alone. But for the middle range of qualified applicants, these other factors were often
determinative. Finally, counselors could “flag” applications for review by the
Admissions Review Committee, where any factor important to the freshman class
composition — race included — was not adequately reflected in the selection index
score.
The four Grutter dissenters were joined by two Justices in striking down the
racial bonus system for undergraduate admissions in Gratz. Basically, the same factors

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that saved the Law School policy, by their absence, conspired to condemn the
undergraduate program in the eyes of the majority. Since the university’s
“compelling” interest in racial student diversity was settled in Grutter, the companion
case focused on the reasons why the automatic award of 20 admission points to
minority applicants failed the narrow tailoring aspect of strict scrutiny analysis.
Relying, again, on the Powell rationale in Bakke, the policy was deemed more than a
“plus” factor, as it denied each applicant “individualized consideration” by making
race “decisive” for “virtually every minimally qualified underrepresented minority
applicant.” Nor did the procedure for “flagging” individual applications for additional
review rescue the policy since “such consideration is the exception and not the rule,”
occurring — if at all — only after the “bulk of admission decisions” are made based
on the point system. The Court rejected the university’s argument based on
“administrative convenience,” that the volume of freshman applications makes it
“impractical” to apply a more individualized review. “[T]he fact that the
implementation of a program capable of providing individualized consideration might
present administrative challenges does not render constitutional an otherwise
problematic system.” Finally, the majority made plain that its constitutional holding
in Gratz is fully applicable to private colleges and universities pursuant to the federal
civil rights laws. “We have explained that discrimination that violates the Equal
Protection Clause of the Fourteenth Amendment committed by an institution that
accepts federal funds also constitutes a violation of Title VI [of the 1964 Civil Rights
Act].”
II. Supreme Court Review
As noted above, the Supreme Court has never considered the constitutionality of
the voluntary use of race as a factor in achieving diversity in elementary and secondary
education. All three of the federal appeals courts to consider the issue since Grutter
and Gratz were decided have upheld racial diversity measures in public schools,15 but
these opinions conflict with pre-Grutter/Gratz appellate rulings that rejected such
racially based plans.16 As a result, the Supreme Court recently agreed to review the
issue,17 and a decision is expected to be issued during the Court’s 2006-2007 term. In
order to illustrate the factors that the Court is likely to consider in its review, the
Court’s equal protection jurisprudence is discussed below, as are the appellate court
decisions in Meredith and Parents Involved in Community Schools, as well as the
factors that the Supreme Court is likely to evaluate when reviewing whether the
Jefferson County and Seattle school diversity plans at issue violate the equal
protection clause of the Constitution.
15 Comfort v. Lynn Sch. Comm., 418 F.3d 1 (1st Cir. 2005); McFarland v. Jefferson County
Pub. Schs, 416 F.3d 513 (6th Cir. 2005); Parents Involved in Cmty. Sch. v. Seattle Sch.
Dist., No. 1, 426 F.3d 1162 (9th Cir. 2005).
16 See, e.g., Tuttle v. Arlington County Sch. Bd., 195 F.3d 698 (4th Cir. 1999); Eisenberg
ex rel. Eisenberg v. Montgomery County Pub. Schs., 197 F.3d 123 (4th Cir. 1999);
Wessmann v. Gittens, 160 F.3d 790 (1st Cir. 1998).
17 Meredith v. Jefferson County Bd. of Educ., 126 S. Ct. 2351 (U.S. 2006); Parents Involved
in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 126 S. Ct. 2351 (U.S. 2006).

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Equal Protection
The Fourteenth Amendment of the Constitution provides, in relevant part:
No state shall make or enforce any law which shall abridge the privileges or
immunities of the citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.18
Under the Supreme Court’s equal protection jurisprudence, “the general rule is
that legislation is presumed to be valid and will be sustained if the classification
drawn by the statute is rationally related to a legitimate state interest.”19 Laws based
on suspect classifications such as race or gender, however, typically receive
heightened scrutiny and require a stronger state interest to justify the classification.20
The highest level of judicial review, known as strict scrutiny, is applied to laws that
contain classifications based on race. Such classifications will survive strict scrutiny
only if the government can show that they: (1) further a compelling governmental
interest, and (2) are narrowly tailored to meet that interest.21
Meredith v. Jefferson County Board of Education
In MacFarland, the district court found that Jefferson County’s school
assignment plan not only served a compelling interest but also was sufficiently
narrowly tailored to survive strict scrutiny. Indeed, the court held that the school plan
served many of the same interests that the Supreme Court had upheld as compelling
in Grutter, as well as additional compelling interests, such as improved student
education and community support, that are not relevant in the higher education
context. According to the court, “Integrated schools, better academic performance,
appreciation for our diverse heritage and stronger, more competitive public schools
are consistent with the central values and themes of American culture.”22 The court
also found that the student assignment plan, which primarily relied on race-neutral
means such as geographic boundaries, special programs, and school choice, was
“narrowly tailored” in every respect except for its use of separate “racial categories”
for certain schools, which the district was required to revise for the 2005-2006 school
year. On July 21, 2005, for reasons “articulated in the well-reasoned opinion of the
district court,” the Sixth Circuit summarily affirmed the district court’s decree without
issuing a detailed written opinion.23
In the briefs they submitted to the Supreme Court, the parties to the Jefferson
County lawsuit advocate two competing views regarding whether the race-based
18 U.S. Const. amend. XIV, § 1 (emphasis added).
19 City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 (1985).
20 Id.
21 Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).
22 McFarland v. Jefferson County Pub. Schs., 330 F. Supp. 2d 834, 852 (D. Ky. 2004).
23 McFarland v. Jefferson County Public Schs., 416 F.3d 513 (6th Cir. 2003).

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school assignment plan violates the Constitution, but both parties rely heavily on the
Court’s reasoning in Grutter when making their respective arguments. As noted
above, the Grutter Court emphasized that “context matters” when evaluating the
compelling interest that the University of Michigan asserted in defending its race-
conscious admissions plan,24 and the Court also accorded significant deference to the
university’s judgment regarding the necessity of its plan.25 In addition, while
emphasizing that “outright racial balancing” is “patently unconstitutional, 26 the
Grutter Court identified five hallmarks of a narrowly tailored affirmative action plan:
(1) individualized consideration of applicants, (2) the absence of quotas, (3) serious,
good-faith consideration of race-neutral alternatives to the affirmative action program,
(4) that no member of any racial group was unduly harmed, and (5) that the program
has an end point.27
In their briefs, the original plaintiffs, composed of parents whose children were
not admitted to their school of choice, argue that the plan violates the equal protection
clause because it fails both prongs of the strict scrutiny test, neither fulfilling a
compelling interest nor demonstrating that it is narrowly tailored to meet that
interest.28 With respect to the first prong of the strict scrutiny test, the petitioners argue
that the interest asserted — that racial diversity provides educational benefits to
students — is not supported by social science research, which, at best, shows only
marginal improvement in educational outcomes.29 Further, petitioners argue that
deference to the school board regarding its alleged compelling interest in the use of
race is unwarranted because local school boards are not entitled to the level of
deference accorded colleges and universities.30
With respect to the second prong of the strict scrutiny test, the petitioners contend
that the school district’s plan to promote racial diversity is not sufficiently narrowly
tailored to pass constitutional muster. First, the petitioners argue that the plan is not
narrowly tailored because it is simply an automatic extension of the school district’s
desegregation plan and is not specifically tailored to present day circumstances.
Second, the petitioners reject the district’s contention that race is used only as one of
many factors determining school assignment, arguing that when the nearest school
reaches its specified racial capacity, then race becomes the sole determining factor
governing admissions. Third, the petitioners allege that the school plan violates
Grutter’s requirement of individualized consideration because it considers only a
student’s membership in a particular racial group. Fourth, the petitioners contend that
the school district’s consideration of race is not flexible, but rather constitutes an
unconstitutional quota that fixes black student enrollment at a specified minimum and
24 Grutter v. Bollinger, 539 U.S. 306, 327 (U.S. 2003).
25 Id. at 328.
26 Id. at 330.
27 Id. at 334-42.
28 Reply Brief: Appellant-Petitioner, Meredith v. Jefferson County Bd. of Educ., 2005 U.S.
Briefs 915 (U.S. S. Ct. Briefs 2006).
29 Id. at 8-14.
30 Id. at 4-8.

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maximum percentage. Fifth, the petitioners argue that the school district failed to
properly consider race-neutral alternatives, such as various socio-economic indicators,
for achieving its diversity goals.31 Finally, the petitioners allege that the Jefferson
County plan amounts to racial balancing because it seeks to achieve a student body
comprised of a specified percentage of members of a particular racial group and
therefore unconstitutionally stigmatizes and harms the affected students.32
In contrast to the brief submitted by the parent petitioners, the brief submitted by
the Jefferson County school district argues that the city’s plan to promote racial
diversity in its schools does not violate the equal protection guarantee of the
Constitution.33 Specifically, the school district argues that its plan should survive strict
scrutiny because it both serves a compelling state interest and is narrowly tailored to
meet that interest.
With respect to the first prong of the strict scrutiny test, Jefferson County argues
that it has a compelling interest in maintaining racially integrated schools. Noting that
racial integration is the same goal the Court sought to achieve in the landmark Brown
v. Board of Education decision,34 the school district asserts that its interest in
maintaining racially integrated schools is far more precisely focused than the diversity
interest upheld in Grutter but nevertheless serves similar purposes. According to the
district, racial integration is a compelling interest because it helps to promote
important civic values, improve the academic performance of minority students, and
further community support for public schools, all critical goals.35
Likewise, Jefferson County contends that its school assignment plan is narrowly
tailored to accomplish these goals. According to the district, the plan does not attempt
to achieve racial balancing or impose a quota, noting that the percentage of black
students enrolled at various schools ranges from 20.1% to 50.4%, a range that is far
broader than the range upheld in Grutter. Emphasizing that “context matters,” the
district contends that Grutter’s requirement of individualized assessment does not
apply to elementary and secondary education system, which do not share the
University of Michigan Law School’s merit-based selection process. Instead, argues
the school district, its plan is similar to the plan at issue in Grutter because it is
flexible and considers a host of factors other than race, such as residence, school
choice, and capacity, when determining school assignments. In addition, the district
argues that its plan does not unduly harm members of any racial group because
students of all races are subject to the same guidelines and because all schools are
similar in quality such that assignment to one school over another does not cause
significant harm to a given student. Further, the district contends that it has
considered, and indeed used, other race-neutral alternatives to achieve its goals, but
that it is not required to by Grutter to exhaust all possible alternatives. Finally, the
31 Id. at 14-20.
32 Id. at 3-4, 12-14.
33 Initial Brief: Appellee-Respondent, Meredith v. Jefferson County Bd. of Educ., 2005 U.S.
Briefs 915 (U.S. S. Ct. Briefs 2006) (hereinafter Meredith Respondent Brief).
34 347 U.S. 483 (1954).
35 Meredith Respondent Brief, supra n. 33 at 11-13.

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district argues that its school integration plan is clearly limited in time, pointing to the
number of reviews of and modifications to the plan that the school board has
undertaken over the years.36
Parents Involved in Community Schools v. Seattle School
District No. 1
Although the school assignment plan in Meredith differs somewhat from the plan
at issue in Parents Involved in Community Schools, the two cases present similar
issues. In Parents Involved in Community Schools, the Ninth Circuit applied Grutter
and Gratz to approve a school district’s plan to maintain racially diverse schools. In
its en banc decision, the Ninth Circuit ruled that the school district had a compelling
interest in the educational and social benefits of racial diversity and in avoiding
racially concentrated or isolated schools.37 Further, the court held that the district’s
plan was sufficiently narrowly tailored to pass constitutional muster. According to the
court, the “individualized” and “holistic” review endorsed by the Supreme Court was
not required of a noncompetitive, voluntary student assignment plan such as Seattle’s,
as long as the plan is otherwise narrowly tailored. The court held that Seattle’s plan
was sufficiently narrowly tailored, concluding that the 15 percentage point deviation
from the overall racial make-up of the district was not a quota because it is flexible
and does not reserve a certain number of fixed slots based on race. The court also
ruled that school district made a good-faith effort to consider race-neutral alternatives.
Finally, the court concluded that the plan imposed a minimal burden — not being
permitted to attend one’s preferred school — that was shared by all students and that
the plan, which was subject to regular reviews, was sufficiently limited in time and in
scope.38 The ruling reversed an earlier three-judge appellate panel’s contrary decision
that the school district’s plan to maintain racially diverse schools was not sufficiently
narrowly tailored.39
In their briefs to the Supreme Court, the parties to the Seattle lawsuit advocate
two competing views regarding whether the race-based school assignment plan
violates the Constitution. Specifically, Parents Involved in Community Schools
(PICS), the group representing the parents who originally sued to halt the school plan,
argues that the plan violates the equal protection clause because it fails both prongs
of the strict scrutiny test, neither fulfilling a compelling interest nor demonstrating that
it is narrowly tailored to meet that interest.40
With respect to the first prong of the strict scrutiny test, PICS distinguishes the
compelling interests upheld in Grutter from the interests articulated by the Seattle
36 Id. at 13-20.
37 Parents Involved in Cmty. Sch. v. Seattle Sch. Dist., No. 1, 426 F. 3d 1162, 1174-79 (9th
Cir. 2005) (en banc).
38 Id. at 1179-92.
39 Parents Involved in Cmty. Sch. v. Seattle Sch. Dist., No. 1, 377 F.3d 949 (9th Cir. 2004).
40 Initial Brief: Appellant-Petitioner, Parents Involved in Cmty. Sch. v. Seattle Sch. Dist.,
No. 1, 2005 U.S. Briefs 908B (U.S. S. Ct. Briefs 2006) (hereinafter PICS Petitioner Brief).

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school board. According to PICS, although the Grutter Court recognized a compelling
governmental interest in racial diversity, that interest is limited to the higher education
setting and is appropriate only when race is considered to be one of many factors that
contribute to diversity. Furthermore, the Grutter Court deferred to the university out
of respect for its First Amendment right of academic freedom, contends PICS, but
such deference to the Seattle school board would be unwarranted.41
Elaborating further, PICS argues that racial diversity in high schools is not a
compelling interest, asserting that the educational benefits of racial diversity are not
sufficiently established to qualify as a compelling governmental interest and
specifically disputing the evidence presented by the school board regarding the
beneficial impact of desegregation. PICS also argues that Seattle’s pursuit of racial
diversity alone — as opposed to the pursuit of diversity of all types — is
unconstitutional per se. Noting that the Seattle plan relies on a racial classification that
distinguishes only between white and non-white students, PICS argues that the Seattle
plan fails to accomplish genuine cultural, ethnic, or even racial diversity, in part
because it does not acknowledge the diversity that exists among members of the non-
white category.42
With respect to the second prong of the strict scrutiny test, PICS contends that
the Seattle school district cannot demonstrate that its plan is narrowly tailored because
the racial preference is not necessary to accomplish its stated purpose, arguing that
Seattle’s schools would be racially diverse even without the use of the preferential
school assignment plan. Furthermore, PICS contends that the Seattle plan does not
meet the narrow tailoring requirements established in Grutter. According to PICS,
Seattle failed to consider a number of race-neutral alternatives, such as using
geographic location or a lottery for assignment purposes, that would have
accomplished the same diversity goals without consideration of race. PICS also argues
that Seattle’s plan operates as a quota by capping school attendance at a predetermined
number of white and nonwhite students and that the race preference provides no
individual consideration of the ways in which an applicant contributes to diversity, but
rather automatically admits or rejects students based on their membership in a
particular racial group. Finally, PICS argues that the Seattle plan is not narrowly
tailored because it causes undue harm to students who are denied attendance at their
preferred schools and because the plan is not adequately limited in duration.43
In addition to arguing that the Seattle plan does not pass the strict scrutiny test,
PICS raises several other constitutional objections to the Seattle plan. First, relying on
language in Grutter that “outright racial balancing” is “patently unconstitutional,”
which the Court defines as assuring a specified percentage of a particular group within
the student body,44 PICS repeatedly argues that the Seattle plan constitutes “racial
balancing” because, when the racial composition of an oversubscribed school deviates
from the specified ratio, a student’s race is the sole determining factor in whether or
41 Id. at 33-34.
42 Id. at 34-37.
43 Id. at 39-46.
44 Grutter v. Bollinger, 539 U.S. 306, 330 (U.S. 2003).

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not he is admitted. Although the Court has permitted outright racial balancing as a
remedy for past discrimination in, for example, cases involving segregated schools,
PICS argues that Seattle schools are not segregated in the traditional sense in which
students were deliberately placed in separate schools on the basis of race.
Additionally, arguing that the equal protection clause protects individuals, not racial
groups, PICS rejects Seattle’s contention that its plan is justified because students who
are rejected are still entitled to be admitted at another school and because the plan
discriminates against both white and nonwhite students alike.45
In contrast to the brief submitted by PICS, the brief submitted by the Seattle
school district argues that the city’s plan to promote racial diversity in its schools does
not violate the equal protection guarantee of the Constitution. Specifically, the school
district argues that its plan should survive strict scrutiny because it both serves a
compelling state interest and is narrowly tailored to meet that interest.
With respect to the first prong of the strict scrutiny test, Seattle argues that its
consideration of race was designed to further the following compelling interests: “(1)
to promote the educational benefits of diverse student enrollments, (2) to reduce the
potentially harmful effects of racial isolation by allowing students the opportunity to
opt out of racially isolated schools, and (3) to make sure that racially segregated
housing patterns did not prevent non-white students from having equitable access to
the most popular over-subscribed schools.”46 Each of these interests is compelling,
according to Seattle, which points to the Grutter Court’s recognition of the importance
of promoting racial understanding and eliminating racial stereotypes. Emphasizing the
Court’s role in school desegregation cases, Seattle also argues that the Court has long
recognized the harmful effects of racially isolated schools and school districts’
authority to remedy the problem. Further, argues Seattle, Grutter emphasized that
“context matters” when courts are considering racial classifications, and the Court
needs to evaluate the unique context of elementary and secondary education and its
fundamental role in inculcating civic values in the nation’s children when reviewing
Seattle’s plan. Finally, Seattle rejected PICS’ contention that the district is interested
in “racial balancing,” arguing that measures to promote racial diversity and integration
are not and have never been inherently unconstitutional.47
Likewise, Seattle contends that its plan is narrowly tailored to serve its
compelling interests. First, under Grutter, the school district was not required to
exhaust all conceivable race-neutral alternatives, and Seattle asserts that the school
board seriously considered race-neutral alternatives but determined that such measures
would not achieve their compelling interests. Second, Seattle asserts that, as in
Grutter, race was only one of many factors involved in the school assignment plan,
which also considered student choice, school popularity, sibling assignment, and place
of residence. Nor, argues Seattle, was its consideration of race a quota, since there was
no fixed number of white or non-white students assigned to attend particular schools.
45 PICS Petitioner Brief, supra n. 40 at 25-32.
46 Initial Brief: Appellee-Respondent at 19, Parents Involved in Cmty. Sch. v. Seattle Sch.
Dist., No. 1, 2005 U.S. Briefs 908B (U.S. S. Ct. Briefs 2006).
47 Id. at 19-37.

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Third, Seattle asserts that no member of any racial group was unduly burdened by the
plan. Unlike in Grutter, which involved a limited number of merit-based admissions
slots, Seattle students all had the opportunity to attend a Seattle school, and, according
to Seattle, no stigma would attach to a student by virtue of her attendance at a
particular school. Fourth, Seattle argues that the plan is narrowly tailored because it
was periodically reviewed by the school board and had altered over time, thus
demonstrating that the plan is limited in duration. Finally, although Grutter identified
individualized consideration as a hallmark of a narrowly tailored racial classification,
Seattle argues that such individualized review is not required when there is no merit-
based competition and every student receives a comparable school assignment.48
III. Conclusion
In its Grutter and Gratz decisions, the Supreme Court clearly ruled that a
school’s promotion of racial diversity is a compelling interest that renders the
consideration of race constitutionally permissible if such consideration is narrowly
tailored to the school’s diversity interest. Because there are many similarities between
the plan at issue in the Grutter case and the school assignment plans under review in
Meredith and Parents Involved in Community Schools, the Supreme Court may
ultimately decide to uphold the constitutionality of the local plans to promote racial
diversity in elementary and secondary schools. On the other hand, because there are
differences between the higher education and elementary and secondary education
context, as well as some variation among the individual school plans, the Court may
just as easily decide that one or both of the school plans at issue do not present a
constitutionally compelling interest or are not narrowly tailored, or both. Ultimately,
its difficult to predict how the Court will rule in the pending cases, in part because it
is difficult to determine how the Court, whose composition has changed since the
University of Michigan cases were decided, will apply the precedents established in
Grutter and Gratz.
48 Id. at 37-50.

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