Transcript

IN THE SUPREME COURT OF THE UNITED STATES

PARENTS INVOLVED IN COMMUNITY SCHOOLS, Petitioner v. SEATTLE SCHOOL DISTRICT NO. 1, ET AL.

Washington, D.C.

Monday, December 4, 2006

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:01 a.m.

APPEARANCES: HARRY J.F. KORRELL, ESQ., Seattle, Wash.; on behalf of the Petitioner. GEN. PAUL D. CLEMENT, ESQ., Solicitor General, Department of Justice, Washington, D.C.; as amicus curiae, supporting the Petitioner. MICHAEL F. MADDEN, ESQ., Seattle, Wash.; on behalf of the Respondent.

P R O C E E D I N G S

(10:01 a.m.)

CHIEF JUSTICE ROBERTS: We'll hear argument first today in 05-908, Parents Involved in Community Schools versus Seattle School District Number 1.

Mr. Korrell.

ORAL ARGUMENT OF HARRY J.F. KORRELL ON BEHALF OF PETITIONER

MR. KORRELL: Mr. Chief Justice, and may it please the Court.

In an effort to achieve its desired racial balance in its popular high schools, the Seattle school district denied over 300 children, both white and minority children, admission to their chosen schools solely because of their race and without any individualized consideration. This strikes at the heart of the Equal Protection Clause which commands that Government treat people as individuals, not simply as members of a racial class.

This fundamental equal protection principle was reiterated in Grutter and in Gratz. The central question in this case is not, as the school district and many of its allies suggest, whether integration is important or whether desegregation is compelling. The central question in this case is whether outside of the remedial context, diversity defined as the school district does, as a white/non-white racial balance, can be a compelling interest that justifies the use of race discrimination in high school admissions.

JUSTICE GINSBURG: Mr. Korrell --

JUSTICE KENNEDY: Do you disagree in general with the Solicitor General's brief? Do you agree in general with the brief submitted by the Government or do you have differences with it in its approach?

MR. KORRELL: Justice Kennedy, we -- we agree mostly with the Solicitor General's brief. I believe the Solicitor General might take a different position on whether race neutral mechanisms can be used to accomplish race specific purposes.

JUSTICE KENNEDY: Well, I can --

MR. KORRELL: But that's not an issue the court needs to reach in this case.

JUSTICE KENNEDY: Well, it, it is a point that I, I'd like both him and you to discuss at some point during your argument. If -- can you use race for site selection? When you have, you need to build a new school. There are three sites. One of them would be all one race. Site two would be all the other race. Site three would be a diversity of races. Can the school board with, with the intent to have diversity pick site number 3?

MR. KORRELL: Justice Kennedy, I think the answer turns on the reason that the schools have the racial compositions that they do.

JUSTICE KENNEDY: It -- there's -- well, we can have all kinds of different hypotheticals, but there's residential housing segregation, and it wants, it wants, the board wants to have diversity.

MR. KORRELL: Your Honor, our position is that if, if the resulting -- if the racial composition of those schools is not the result of past de jure segregation --

JUSTICE KENNEDY: No. It is a new school. It's a new school.

MR. KORRELL: In that case, Your Honor, Parents' position is that the Government can't be in the position of deciding what right racial mix is.

JUSTICE KENNEDY: So it'd have to take the three sites, all of them in the hypothetical, all of them equal, and just flip a coin, because otherwise it would be using a --

MR. KORRELL: Your Honor, obviously it is not the facts of the Seattle case. In the hypothetical Your Honor posits, perhaps the right analogy is something similar to the, a redistricting cases. Where a court could look at see whether the racial motive was a predominant factor as opposed to -- JUSTICE KENNEDY: No, no. The school board says we want, right up front, we want racial diversity in our new schools. Illicit under the Fourteenth Amendment in your case?

MR. KORRELL: Your Honor, school districts can do many, many things through race neutral means that they could not do with race discrimination.

JUSTICE GINSBURG: But can they have a race conscious objective? I think that that's the question that Justice Kennedy is asking you, and I don't get a clear answer. You say you can't use a racial means. But can you have a racial objective? That is, you want to achieve balance in the schools.

MR. KORRELL: Justice Ginsburg, our position is that that is prohibited by the Constitution absent past discrimination.

JUSTICE SCALIA: You would object, then, to magnet schools? You would object to any system that is designed to try to cause people voluntarily to go into a system that is more racially mixed?

MR. KORRELL: Justice Scalia, our objection to the Seattle program is that it is not a race neutral means.

JUSTICE SCALIA: No, I understand. But I'm trying to find what, you know, the outer limits of your contentions are. It doesn't seem to me that your briefs indicated that you would object to something like magnet schools. The -- even if one of the purposes of those schools is to try to cause more white students to go to schools that are predominantly non-white. It's just voluntary, I mean, but the object is to achieve a greater racial mix.

MR. KORRELL: Your Honor, we object to the -- if that's the sole goal of a school district absent past discrimination, we object. But that kind of hypothetical situation isn't even necessary for the Court to reach.

JUSTICE SCALIA: I understand.

JUSTICE KENNEDY: Well, it may not be necessary for you but it might be necessary for us when we write the case. We're not writing just on a very fact-specific issue. Of course, the follow-up question, and the Solicitor General can address it too, is this: Assuming some race-conscious measures are permissible to have diversity, isn't it odd to say you can't use race as a means? I mean, that's the next question. That may, in fact, be why you give the -- seem to give the answer that you do. You just don't want to embrace that contradiction.

MR. KORRELL: Your Honor, it is certainly difficult if race -- if racial balance can be a goal of government, then it is more difficult to defend a racial balancing plan as unconstitutional, or to attack one as constitutional.

JUSTICE KENNEDY: That is true.

MR. KORRELL: And this Court has said repeatedly that racial balancing is unconstitutional.

JUSTICE SOUTER: Well, we have said it repeatedly in contexts different from this. I mean, the paradigm context in which we made remarks to that effect, stated that, are affirmative action cases. The point of the affirmative action case is that some criterion which otherwise would be the appropriate criterion of selection is being displaced by a racial mix criterion. That is not what is happening here. This is not an affirmative action case.

So why should the statements that have been made in these entirely different contexts necessarily decide this case?

MR. KORRELL: Justice Souter, we disagree that the analysis in the Grutter and Gratz cases is entirely different from the analysis in this case.

JUSTICE GINSBURG: But don't you agree that those cases left someone out of the picture entirely because we were talking about a selection of one person or another? The word "sorting" has been used in this context because everybody gets to go to school. Indeed, they are required to go to school. So no one gets left out of the system, and I think there have been Court of Appeals judges who have noted. We have never had that case before, not like the affirmative action cases.

MR. KORRELL: Your Honor, I agree that this Court has not had a case like this before. I disagree, however, that it's not like the Grutter or Gratz decision. The plaintiff in Gratz, as the Court is aware, attended the University of Michigan at Dearborn. He got into a school. He didn't get into the school that he wanted to go to. Similarly, in our case, with the plaintiffs, they wanted to go to their preferred schools, schools that the school district acknowledges provided different educational opportunities, produced different educational outcomes, and they were preferable to the parents and children who wanted to go.

JUSTICE SCALIA: Why do you agree that this is not an affirmative action case? Is it not? Wherein does it differ? I thought that the school district was selecting some people because they wanted a certain racial mix in the schools, and were taking the affirmative action of giving a preference to students of a certain race. Why isn't -- why doesn't that qualify as affirmative action?

MR. KORRELL: If that's what affirmative action is, Your Honor, then --

JUSTICE SCALIA: Well, I don't know what else it is. What do you think it is that causes you to seemingly accept the characterization that this is not it?

MR. KORRELL: Your Honor, perhaps I misspoke. I didn't mean to accept the characterization that this case is not at all --

JUSTICE SOUTER: Let me help you out by taking you back to my question. One of the characteristics of the affirmative action cases was the displacement of some other otherwise generally acknowledged relevant criterion such as ability as shown in test scores, grade point averages, things like that; and that was a characteristic of those cases.

It is not a characteristic of this case, as I understand it.

MR. KORRELL: I'm not sure that's exactly right, Your Honor. In this case, the school district admitted in the response to request for admissions that had the identified children been of a different race, they would have been admitted into the schools.

JUSTICE SCALIA: I thought there was a criterion here, and that is, you can go to whatever school you want. You are allowed to go to a certain choice of school. The criterion was your choice.

MR. KORRELL: Justice Scalia, you're right. And there's another criterion which I think is getting to Justice --

JUSTICE SOUTER: Well, when you state Justice Scalia is right, you are assuming, I think as your brief assumed, that the definition of the benefit to be received here is the active choice, not the provision of an education.

Now the active choice may be of value. I do not suggest that it is not. Clearly the school district thinks it does or it wouldn't provide choice. But it is not the entire benefit that is being provided, and the principal benefit is the education, not the choice of schools. Isn't that correct?

MR. KORRELL: Your Honor, they are both benefits. I would point Your Honor back to this Court's decision in Gratz, where the same analysis would apply. And if Your Honor's analysis is correct, that would mean, I think, that the Gratz case would have been decided differently.

JUSTICE BREYER: But I think that the point that Justice Souter is trying to make, as I understand it, is of course there are similarities to Gratz, they can choose, but there's a big difference. The similarity in Grutter, or the difference in Grutter and Gratz is that you had to prod a school that was supposed to be better than others, that the members of that school, the faculty and the administration tried to make it better than others. It was an elite merit selection academy. And if you put the black person in, the white person can't get the benefit of that.

Here we have no merit selection system. Merit is not an issue. The object of the people who run this place is not to create a school better than others, it is to equalize the schools. That's in principle and in practice, if you look at the numbers, you see that the six schools that were at the top, their position would shift radically from year to year, preferences was about equal among them. They have the same curriculum, they have similar faculties, and I don't think anyone can say either in theory or in practice, that one of these schools happened to be like that prize of University of Michigan, a merit selection system. That, I think, was a major difference that he was getting at, why is this not the same kind of thing? That was at issue in Grutter and Gratz. Now what is your response to that?

MR. KORRELL: Your Honor, we have several responses. The first is that the premise of Your Honor's question is that the schools are in essence fungible for purposes of providing a high school education. And I would direct Your Honor to the District Court judge's decision, a footnote in the decision in which she acknowledged that the schools were not of equal quality, that they provided different levels of education.

JUSTICE SCALIA: Of course they're not. That's why some of them were oversubscribed. That's why others were undersubscribed.

JUSTICE BREYER: I didn't say that they were. What I said was that the object of the school board and the administering authority was to make them roughly equal. I said that in terms of curriculum and faculty, they're about roughly equal. And in terms of choice, what you see is a wide variation in choice by those who want to go as to which is their preference among six schools over a period of five years.

And that suggests a rough effort to create the equality, not an effort as in Michigan, to run a merit selection system.

MR. KORRELL: I agree with Your Honor that there's not a merit selection system in --

JUSTICE BREYER: Fine. Now the question is, why doesn't that fact that this is not a merit selection system put a different kind of thing, a sorting system or a system designed to maintain a degree of integration, why doesn't that difference make a difference?

MR. KORRELL: Your Honor, I think that the fundamental command of the Equal Protection Clause is that government treats as individuals, not as members of a racial group. And that command I don't think is suspended because of the nature of a school's admissions process. That right is still possessed by the individual students, and if a student is entitled to be treated as an individual as opposed to a member of a racial group at a university level, it's Parents' position they are entitled to that same protection at the high school level.

JUSTICE GINSBURG: Mr. Korrell, before your time runs out, I did want to clarify something about the standing of the plaintiffs here.

Do I understand correctly that none of the parents who originally brought this lawsuit have children who are now pre-ninth grade, but that newcomers, people who recently joined, do have children of pre-ninth grade age?

MR. KORRELL: Your Honor, that is mostly correct. There is also a family that joined the parents association back in 2000 that has a child in seventh grade, that will be approaching high school by the time this Court decides the case.

CHIEF JUSTICE ROBERTS: But the lawsuit was originally brought by a corporate entity, correct?

MR. KORRELL: That's correct, Your Honor.

CHIEF JUSTICE ROBERTS: Not by individual parents.

MR. KORRELL: That's correct.

JUSTICE GINSBURG: But you don't dispute that membership, for standing purposes, the membership is what counts, not the association but the members?

MR. KORRELL: Your Honor, my understanding of the Court's jurisprudence on associational standing is as long as a member of the association has standing, then the association has it. We submit that that has been established by the complaint, the interrogatory responses, and --

JUSTICE GINSBURG: Well, if it is a member, jurisdictional questions generally, don't we go by what the membership was when the complaint was filed and not what it has become in the course of the litigation?

MR. KORRELL: I don't think that's right, Your Honor. We cited to the Court the Pannell case, the Associated General Contractors case, and Roe versus Wade, all of which look at post-filing factors to --

JUSTICE GINSBURG: Yes, but the transaction case situation is different.

MR. KORRELL: You're right, Your Honor, none of those were class action cases. Pannell and Associated General Contractors were association cases much like this one. Roe, of course, was individual plaintiffs.

JUSTICE STEVENS: I have a question. Does the record tell us, the 300 people who have failed to get into the schools they wanted, the racial composition of that group?

MR. KORRELL: It does, Justice Stevens. The record shows that 100, roughly 100 students who were denied admission to their preferred schools were non-white and roughly 200 who were denied admission were white students.

If there are no further questions, Mr. Chief Justice, I will reserve the balance of my time.

CHIEF JUSTICE ROBERTS: Thank you, counsel. General Clement.

ORAL ARGUMENT OF PAUL D. CLEMENT ON BEHALF OF THE UNITED STATES AS AMICUS CURIAE

SUPPORTING THE PETITIONER

GENERAL CLEMENT: Mr. Chief Justice, and may it please the Court:

Respondents assert an interest in addressing the most racially isolated schools in the district, yet their plan does not address the two most racially concentrated high schools in their district. They likewise have certain interests in diversity, yet their plan does not directly address diversity other than pure racial diversity, and they do nothing to assemble the kind of critical mass that was at issue in the Grutter case.

In fact, if you look at the program and how it operates in practice, the triggering critical mass for the use of the racial tie breaker is when a student -- when a school has less than 25 percent white students or when it has less than 45 percent non-white students. There is nothing in the record or in social science that suggests that there's a radical difference in the critical mass based on the race of the students.

Of course what explains that difference in the triggering critical mass of white students versus non-white students, the answer to that does not lie in educational theory, the answer lies in the demographics of the district. The district happens to have 25 percent more non-white students than white students, so they trigger the race tie breaker at a different point under those circumstances.

With all respect to respondents, the answer to how this program works lies not in diversity but in demographics. They are clearly working backwards from the overall demographics of the school district rather than working forward to any clearly articulated pedagogical role.

CHIEF JUSTICE ROBERTS: Counsel, if I could get back to Justice Kennedy's question earlier, how do you distinguish decisions like citing magnet schools, clustering, from the consideration of race in this case?

GENERAL CLEMENT: Well, Mr. Chief Justice, I think that those decisions are different primarily because the resulting decision is not a racial classification. And if you think about it, when you had an overt racial classification, like you clearly do in these cases, then you naturally ask the strict scrutiny questions and look for a compelling interest. If instead you start with a race-neutral government action that doesn't classify people directly based on race, then I suppose you could try to do some kind of Arlington Heights-Washington Davis type analysis.

JUSTICE KENNEDY: Well, what would you do with strategic site selection in order to create racial diversity?

GENERAL CLEMENT: Well, Justice Kennedy, I think --

JUSTICE KENNEDY: I mean, that's expressed and principal purpose. You know the hypothetical.

GENERAL CLEMENT: Okay. And Justice Kennedy, I will answer the hypo, but let me say it's easy for purposes of the hypo to say the sole reason was for race. In the real world, in fact I can't imagine that a site decision won't be based at least in part on concerns about the overall educational benefits. And I think that's important. The reason I start with that preface is because when you have mixed motives and a variety of factors I think you'd be unlikely to strike down that kind of motive.

JUSTICE KENNEDY: Are you suggesting there was no consideration of overall educational benefits in this plan?

GENERAL CLEMENT: No, Justice Stevens. I'm saying you start at a different departure point when you have an express racial classification. I think I'm trying to answer Justice Kennedy's question about what if you have a sort of a race-conscious goal at some level and that's why you select a particular site or you decide that you're going to invest in magnet schools and want to put a magnet school in a particular school district. My humble point is simply that in the real world I think you're unlikely to have the pure racial motive type objective. I would say that --

JUSTICE GINSBURG: Suppose it was faculty, and the school district makes a deliberate effort to have members of the white race and members of other races represented in -- on the faculty of every school, so you won't have one school with all white teachers, so that you'll have a mix, and that's quite explicit. That's their objective and they're using a racial criterion criterion to get there.

Would that be impermissible, to have a mix of teachers in all the schools?

GENERAL CLEMENT: Well, Justice Ginsburg, I think if what they wanted to do is have an mix of teachers that might be okay. If they're going to start assigning teachers to particular schools and have sort of racial quotas for the faculty at various schools, I think that crosses a line.

JUSTICE GINSBURG: Well, what would be okay? How would you get there other than having -- the point I'm trying to make has been made by others. Let me read from Judge Boudin's decision. He says: "The choice is between openly using race as a criterion or concealing it through some clumsy or proxy device."

If you want to have an integrated school and you site the schools deliberately to achieve that objective, it's very hard for me to see how you can have a racial objective but a nonracial means to get there.

GENERAL CLEMENT: Well, with respect, Justice Ginsburg, I think there's a fundamental difference between how the same intent with two programs, there's a fundamental difference if one of them necessarily classifies people on the basis of their skin color and the other does not.

JUSTICE SCALIA: General Clement, is there anything unconstitutional about desiring a mingling of the races and establishing policies which achieve that result but which do not single out individuals and disqualify them for certain things because of their race? Is there anything wrong with a policy of wanting to have racial mix?

GENERAL CLEMENT: Justice Scalia, we would take the position that there's not and that there's a fundamental difference between whether or not the policy manages to avoid classifying people on the basis of their race.

JUSTICE KENNEDY: At page 7 of your brief you say: "School districts have an unquestioned interest in reducing minority isolation." If I put a period in there, then I would get to my strategic site selection, and I still haven't got your answer on that. You don't put a period there. You say: ". .have an unquestioned interest in reducing minority isolation through race-neutral means." And this brings up this same question Justice Ginsburg had. Isn't it odd jurisprudence where we have an objective that we state in one set of terms but a means for achieving it in another set of terms, unless your answer is that individual classification by race is, is impermissible, but other, more broad measures based on, with a racial purpose are all right?

GENERAL CLEMENT: I think that's ultimately the answer, Justice Kennedy, which is there's a fundamental difference between classifying people and having the real world effect. I mean, in this case don't forget that there were 89 minority students that wanted to attend Franklin High School. They could not solely because of their race. At the same time, every white student who applied to Franklin High School was allowed in solely base would on their race.

JUSTICE KENNEDY: And what is the answer to my strategic site selection hypothetical?

GENERAL CLEMENT: We would say that's fine. We would say that that is permissible, for the school to pursue that.

Just to get back, though, again, we say that that avoiding racial isolation is -- I just want to make the point, we say that racial isolation is an important government interest. I think if you put this plan up against that objective, it solely fails, because there are two high schools that I think you would look at as being racially isolated. They're Cleveland n Rainier Beach, and this plan does nothing to directly address those high schools.

JUSTICE SOUTER: My question is really Judge Boudin's question. You are in effect saying that by siting the school they can achieve exactly the objective they are seeking here. It's a question of do the -- the question comes down to whether they can do it candidly or do it by clumsier. That is, it seems to me, an unacceptable basis to draw a constitutional line.

GENERAL CLEMENT: With respect, Justice Souter, first of all I think the kind of interests we're talking about, avoiding racial isolation and the like, do not lend themselves to absolutely targeted, it has to be 15 percent, it has to be 50, it has to be 25, it has to be 45. I would actually suggest that the danger is in the opposite direction.

JUSTICE SOUTER: That isn't what they said here. I mean, they were dealing with a zone within which they operated, and it was only when the numbers got to the outer limits that they said, okay, we're going to use a racial criterion to prevent anything more, any more extreme disparity.

GENERAL CLEMENT: Well, I mean, in the second stage --

JUSTICE SOUTER: That's what they do when they site the school. They said, you know, we'll get a rough whatever it is, 40-60 mix.

GENERAL CLEMENT: Well, I think in the second case you'll see that, you know, the same logic that leads to this leads itself to stricter bands. But let me say, I would have thought the analysis would run the exact opposite way, and I would think that if you got to the point, which the Ninth Circuit did on page 58-A of its opinion, where it says, you know, with this objective that we've allowed, the most narrowly tailored way to get there is to expressly use race. I would have thought that might have suggested there was something wrong with the compelling interest, if that's the way --

JUSTICE BREYER: While you're talking about the way, let me ask a practical question. 35 years ago in Swann, this Court said that a school board, particularly an elected one -- it didn't say that -- "could well conclude that to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion of the district as a whole." Far more radical than anything that's at issue here.

Then it adds: "To do this as an educational policy is within the broad discretionary powers of school authorities." That's what this Court said 35 years ago. Thousands of school districts across the country, we're told, have relied on that statement in an opinion to try to bring about a degree of integration. You can answer this in the next case if you want. So think about it.

CHIEF JUSTICE ROBERTS: You can answer in this case, General. (Laughter.)

JUSTICE BREYER: My question, of course, is simply this. When you have thousands of school districts relying on this to get a degree of integration in the United States of America, what are you telling this Court is going to happen when we start suddenly making -- departing from the case? Do you want us to overrule it? Why? Why practically?

CHIEF JUSTICE ROBERTS: General?

GENERAL CLEMENT: If I could answer the question, I think that the fact that you point to the specific language of Swann is helpful, because the Court there in dictum -- I think everybody would agrees that was dictum -- said that you could achieve a prescribed ratio. And that's exactly where the logic of the other side, of the Ninth Circuit, of Judge Boudin, with all respect, that's where it takes you.

And I think anybody that relied on that language in the wake of cases like Crosson, in the wake of Freeman against Pitts, that said achieving a racial balance for its own sake is not constitutional, and Bakke and Grutter against Gratz, that all said that racial balancing is verboten, I think those school districts would have been misguided in relying on that language. Thank you.

CHIEF JUSTICE ROBERTS: Thank you, General.

Mr. Madden.

ORAL ARGUMENT OF MICHAEL F. MADDEN

ON BEHALF OF RESPONDENTS

MR. MADDEN: Mr. Chief Justice and may it please the Court:

When Seattle was last before this Court you struck down a State law that prevented bussing for integration purposes because that law prevented the school board from seeking to provide the educational benefits of integrated schools. At that time you said it was clear enough that all children benefit from exposure to ethnic and racial diversity in the classroom by preparing them for citizenship in our pluralistic society and teaching them to live in harmony and mutual respect.

JUSTICE SCALIA: Mr. Madden, that's certainly an admirable goal. Could a local unit, a municipality, or even a State have another goal? Let's say what used to be great about the United States was the presence of various ethnic groups. I mean, there were the Pennsylvania Dutch, there were the Amish, there were Little Italy's, there were Chinatowns, and these things are beginning to disappear. And we think that we should encourage the continuation of that diversity, as the Federal Government has done with respect to American Indian tribes.

And therefore, we're going to use public funds for such things as street festivals, a Chinatown street festival, an Italian street festival. We're going to encourage those organizations that maintain that separateness. Is there anything unconstitutional about that objective?

MR. MADDEN: Providing funding for street festivals?

JUSTICE SCALIA: About the objective? I mean, think we should foster separateness? Is there anything wrong --

MR. MADDEN: I think that in the context that you've described it that would be constitutionally very problematic.

JUSTICE SCALIA: Fine -- it would be problematic?

MR. MADDEN: Yes.

JUSTICE SCALIA: Why?

MR. MADDEN: Because I can conceive that it's not -- unlike education, where the goal is to educate the entire community and to help to prepare the community, the students to live in that community, it's not a traditional role of government --

JUSTICE KENNEDY: Well then, let me change Justice --

JUSTICE SCALIA: Please let me finish the line of questioning.

Assume with me that it is not an unconstitutional objective, which I am sure it's not. Could the -- could the government achieve that objective by barring people from moving into Little Italy or giving a preference to some people to buy real estate in Little Italy if they are of Italian ancestry? Could it do that? Absolutely not, right?

MR. MADDEN: I would agree with you.

JUSTICE SCALIA: So it would appear that even if the objective is okay, you cannot achieve it by any means whatever. And the mere fact that the objective of achieving a diverse balanced society is perfectly all right, although certainly not the only objective in the world. The mere fact that it's okay doesn't mean you can achieve it by any means whatever?

MR. MADDEN: I would submit that there's a fundamental difference between the circumstances you've described and a school system which takes all comers and is tasked to educate them by preparing them to live in a pluralistic society.

JUSTICE KENNEDY: Well, my slight modification of Justice Scalia's hypothetical -- and it proceeds on the same theory -- is suppose there's a huge demand for housing. A developer has a plan to build 500 units. Can the city say, we'll grant you the permit on the ground, on the condition that 30 percent of all the houses go to minorities? That means people will live together. Then we can have a school, a school that can be diverse.

MR. MADDEN: I would say not, because housing decisions are inherently private, unlike public education. And there's no way to know how those benefits are being distributed, if they're going to be comparable. I would say no, it is not comparable to the schools.

JUSTICE KENNEDY: Well, your system is the one that gives a choice to the individuals.

MR. MADDEN: It does, and when there are more choices than there are seats available.

CHIEF JUSTICE ROBERTS: Does that make a difference? What if you adopted a plan that insisted on a more or less rigid 60-40 ratio at every school and assignments were made on that basis. It was not a follow-on to a choice system.

MR. MADDEN: Well, I think --

CHIEF JUSTICE ROBERTS: Would that be unconstitutional?

MR. MADDEN: Excuse me, Mr. Chief Justice. I'm sorry to interrupt.

I think in each circumstance it depends on the status of the school system.

CHIEF JUSTICE ROBERTS: The same -- the facts are otherwise the same, except you conclude that private choice contributes to further division rather than integration and so the assignments are made on a 60-40 basis.

MR. MADDEN: I think that is roughly the circumstance that existed in the first Seattle case, Mr. Chief Justice. And additionally, I think that you then have to move into the realm of what's constitutionally permissible and can in a constitutionally permissible use of race a school system accommodate other values like choice and neighborhood ties and family connections to the school system.

CHIEF JUSTICE ROBERTS: I still don't have your answer.

Is strict assignment 60-40 without regard to choice constitutional or not?

MR. MADDEN: I -- I would want to know more about the system because I think strictly if there's nothing else and there's no flexibility, I think it presents narrow tailoring problems.

CHIEF JUSTICE ROBERTS: And how does this not present narrow tailoring problems if -- if the -- when you get to the fact of choice, the sole criteria at that level is the same as would be the case in a 60-40 assignment.

MR. MADDEN: Well, we have accommodated choice to the extent there are seats available. And then we go to family connections. And then we -- in operation, admit everyone who lives close to the school. And then as to those that live further away, we look to see what's the school's racial demographic. Is it significantly different than the community's? These schools we have talked about have been the objects of significantly more aggressive segregation efforts, and the board wanted to preserve those.

CHIEF JUSTICE ROBERTS: One of the, one of the factors our prior cases looked to was whether the plan has a logical end point. What is the logical end point in this plan?

MR. MADDEN: Well, the board actually at every turn reflected in the record discussed whether it was necessary to continue the use of race, whether to narrow it, and eventually to end it. And I think it is in the joint appendix at 408, the superintendent's testimony of the, simultaneously the measures that the board was implementing in terms of resource allocation, implementation of new programs, because they realized that by diversifying choice, they could hopefully achieve some of these same ends, not as quickly, not as efficiently, but that they could achieve them. That's been indeed the entire trajectory of Seattle's integration efforts since the first Seattle plan.

JUSTICE KENNEDY: But in Grutter we said, to shorten it just a little bit, at page 329-330 of the U.S. Reports, 539, "the law school's interest is not simply to assure within its student body some specified percentage of a particular group because of race ... that would amount to outright racial balancing which is patently unconstitutional." And that seems to be what you have here.

MR. MADDEN: I think that the term racial balancing has two significant meanings. One is a plan that does not foster a compelling interest. And second, a plan that is too rigid, a quota, for instance, that might not pass narrow tailoring given the context.

In this case we're not after a rigid set of numbers, and certainly not after a rigid set of numbers for their own sake. The purpose was to have schools that had become diverse through integration efforts not stray too far from the community's demographic because we're trying to prepare students to live in those communities.

JUSTICE KENNEDY: The problem is that unlike strategic siting, magnet schools, special resources, special programs in some schools, you're characterizing each student by reason of the color of his or her skin.

That is quite a different means. And it seems to me that that should only be, if ever allowed, allowed as a last resort.

MR. MADDEN: The board here was trying to distribute, sort out seats that were available at these popular schools; and so it devised a system whereby every student had the opportunity to be assigned to at least one of those popular schools; and as far as the record shows in plaintiffs' briefing, there's no material differences between those -- those popular schools.

JUSTICE SCALIA: Do you have quotas for, for racial hiring of your faculty in these schools?

MR. MADDEN: No.

JUSTICE SCALIA: Why not?

MR. MADDEN: I don't think the board has ever found that necessary to, to achieve diversity in the faculty.

JUSTICE BREYER: Justice Kennedy's question, I think, was is this basically a kind of last report? Or how close to a has resort is it? What's the history of this? I thought the history involved a lawsuit to desegregate the schools, a much more rigid system of racial -- abuse of race. Ultimately you come to this. Now you stop this. And what happened after you stopped it?

MR. MADDEN: What happened is that, that it

JUSTICE BREYER: Well, what is the history basically? Am I right?

MR. MADDEN: The history is that the board had both narrowed the use of the integration tie breaker in '99 and 2000 and then continued it for the 2001 school year. We were -- in 2000-2001 school year, we were enjoined in 2001 to use it in that year, which was considerably disruptive. But the board was also, the measures that it had implemented, implementing magnet schools at Rainier Beach and Chief South high schools in the South End, implementing it in --

JUSTICE BREYER: But that's not what I'm thinking.

MR. MADDEN: I'm sorry.

JUSTICE BREYER: I mean I'm thinking that, I thought as I read this, and you have to correct me because you have a better knowledge, originally the schools were highly segregated in fact. People brought a lawsuit. Then to stop that Seattle engaged in a plan that really bused people around on the basis of race. That led to white flight. That was bad for the schools. They then tried a voluntary choice plan. This is part of that plan. Then when they abandon this plan, they discover more segregation. Is that basically right or not?

MR. MADDEN: When, when this plan has -- this -- the description is yes, basically right.

When this plan was suspended in, after the Court of Appeals enjoined it, the board had, as I said, experienced some considerable disruption in the assignments because of the timing of the injunction. But the board was also looking at the effect of the race-neutral, if you will, program measures that it had implemented.

Such that now, Ingram high school in the north end of Seattle is much more popular. Nathan Hale is no longer over-subscribed. There's less demand for Ballard, but there have been --

JUSTICE ALITO: Do you think your, do you think your schools as they are operated now are segregated?

MR. MADDEN: We have some change of conditions, but the basic conditions remain, the trends has not been positive. For example, and I think that the petitioner picked --

JUSTICE SCALIA: To say segregated, segregated -- you refer to some of the schools as segregated. And I, that's not what I understand by segregated.

MR. MADDEN: Not, not in the sense --

JUSTICE SCALIA: I mean, you know, if you belong to a country club that, that -- that has 15 percent black members, I would not consider that a segregated country club. So what you are complaining about is, is not segregation in any, in any reasonable sense of the word. You're complaining about a lack of racial balance.

MR. MADDEN: We are not complaining about segregation resulting from purposeful discrimination. That's --

JUSTICE SCALIA: That's the only meaning of segregation.

MR. MADDEN: I --

JUSTICE SCALIA: You're talking about racial balance.

MR. MADDEN: Talking about schools that are on the one end racially isolated. The Solicitor General mentioned two of those. And talking on the other end about preserving the diversity that we had achieved through these years of effort in these north end schools.

JUSTICE SCALIA: Well, I think you're also

JUSTICE KENNEDY: Justice Alito and Justice Breyer and I myself am interested: Can you tell us what has happened since the plan's been enjoined?

MR. MADDEN: Yes.

JUSTICE KENNEDY: I mean, have you gone back to square one? And it's just, there's no diversity at all? Or is there substantially more diversity? Can you tell us about that? Because it's important. It may mean that you don't need to identify students by the color of their skin in assignment.

MR. MADDEN: It, it may mean the board confronted with the circumstances might well make that decision independent of this litigation. But let me answer the specific.

Let's take Franklin High School to begin with. In, in 2000, that school was -- had 25 percent white enrollment. In 2005, it had 10 percent white enrollment. In the ninth grade, which is really the, the level at which we see the effect of the segregation tie breaker, in 2000, the white enrollment was 21 percent; it was 8 percent in 2005.

Go to Ballard High School on the other end. Ballard was 56 percent white students in 2000; it's 62 percent in 2005. The ninth grade class has moved from 46 percent white students to 58 percent white students. Keeping in mind that that school is now significantly less popular than it was, I think those effects would probably be, be more extreme.

But the plan -- I want to emphasize, the plan was to try to disperse demand and to foster choices that would result in diversity, not to compel it. We do not --

JUSTICE ALITO: How do, how do you square your objective of achieving racial balance with your disinterest in the situation at Cleveland and Rainier Beach? Those are the most unbalanced schools under your definition, and yet those are not affected at all by this plan. Why, why are you not concerned about that?

GENERAL CLEMENT: Well, they are affected by the plan in this in this way, that in the past the district had used mandatory measures, busing students across town, to try to integrate those schools. And the board decided after many years of effort that it would no longer do that, but it was also of the firm conviction that it would allow students who wanted the opportunity to opt out of those schools to do so.

At the same time, it implemented magnet schools at Rainier Beach, there's a new building under construction at Cleveland. And so --

JUSTICE ALITO: Are the students who are attending those schools getting the benefits of attending a school that's racially balanced? And if they're not, why are you not concerned about that, if that's an important objective of your program?

MR. MADDEN: We, we are concerned about improving the quality of education in all the schools. We do not mandate that a student attend a school for integration purposes as we once did.

JUSTICE SOUTER: Why?

MR. MADDEN: Because it, it's important to the credibility and functionality of the school system to have a system that is accepted by the public, by our constituents. And so people like choice; they also like neighborhood schools; they also like diverse schools. And the board recognized when it set about to develop this plan that accommodating all of those values would require some trade-offs. And the board, familiar with the local conditions, familiar with the history, did just that in what I submit was a narrowly tailored and appropriate way.

JUSTICE STEVENS: May I go back to the Cleveland school that Justice Alito mentioned? An I correct that there were 16 percent whites under the plan? And I'm just wondering what happened to it during the last couple of years?

MR. MADDEN: Cleveland is now about 8 percent.

JUSTICE STEVENS: And it was -- about half as many whites as there were under the plan.

MR. MADDEN: I don't remember the precise number in 2000, but that sounds about right.

JUSTICE GINSBURG: Mr. Madden, there was a question raised about your categories, that is, you have white and then everything else. And it was suggested that if you are looking for diversity, what was -- the schools that you just mentioned had a large percentage of Asian-Americans, but they don't count.

What is your response to that?

MR. MADDEN: Well, the -- the problem that the board was addressing was principally a, a problem of the distribution of white and non-white students. The -- as a generality, 75 percent of all non-white students in the district lived in South Seattle. And that was true for all the ethnic groups except Native Americans, who are a very small --

JUSTICE ALITO: Why is that a problem? Suppose you have a school in which 60 percent of the students are either of Asian ancestry or Latino ancestry, and 40 percent are white as you classify people. And there are no African-American students at all. You would consider that to be a racially balanced school, would you not?

MR. MADDEN: I would say if that circumstance occurred, that that would be something that the board would have to pay attention to and consider. But the fact of the matter is that --

CHIEF JUSTICE ROBERTS: Nothing under the plan requires that, does it?

MR. MADDEN: No, because the numbers in terms of the distribution of ethnic groups, separate ethnic groups and the benefits or impacts of the plan were spread proportionately --

JUSTICE ALITO: And what is the theory behind that? Is, the theory is it that the white students there or the Asian students or the Latino students would not benefit from having African-American classmates? It is enough if they have either Asian classmates or Latino classmates or white classmates? How do you -- how do square that with your, your objective of providing benefits that flow from racial balance?

MR. MADDEN: I may, I may have confused the answer to the hypothetical with the, with rationale on the ground, which was that we did not have that kind of single minority ethnic group disparity existing in any school. I was saying, however, that if that existed, I think that would be something the board would have to be mindful of. As a practical matter, because our non-white ethnic neighborhoods in South Seattle are themselves quite integrated, that the movement under this plan did not produce disparities for or against any particular ethnic group. And so I think in the end it might have been more divisive to have individual tiebreakers for the separate minority ethnic groups.

JUSTICE SCALIA: What criteria of race does the school, just out of curiosity, does the school district use? I mean, what if a particular child's grandfather was white? Would he qualify as a white or non-white.

MR. MADDEN: I would say -- well, the answer is --

JUSTICE SCALIA: I mean, there must be some criterion. There are many people of mixed blood.

MR. MADDEN: The district has no criteria itself. The district uses classifications that are developed by the Federal Government but allows parents to self identify children.

JUSTICE SCALIA: It allows parents to say I'm white, no matter what?

MR. MADDEN: That allows the parents to self identify, and the record in this case through the testimony of petitioner's president is they were aware of no abuse of that.

JUSTICE SCALIA: Seems like a big loophole.

MR. MADDEN: It seems like one but according to the record, it's not an issue. I'd like to --

CHIEF JUSTICE ROBERTS: You don't defend the choice policy on the basis that the schools offer education to everyone of the same quality, do you?

MR. MADDEN: Oh, yes. Yes. They offer -- the popular schools to which everyone had access under this plan who wanted access, I think it's -- there is no dispute.

CHIEF JUSTICE ROBERTS: How is that different from the separate but equal argument? In other words, it doesn't matter that they're being assigned on the basis of their race because they're getting the same type of education.

MR. MADDEN: Well, because the schools are not racially separate. The goal is to maintain the diversity that existed within a broad range in order to try to obtain the benefits that the educational research show flow from an integrated education.

CHIEF JUSTICE ROBERTS: Even though in the individual cases the students, including minority students, and I gather 89 to 100 of the cases are being denied admission on the basis of their race?

MR. MADDEN: They're not being denied admission. They're being -- seats are being distributed to them. This is not like --

CHIEF JUSTICE ROBERTS: They are being denied admission to the school of their choice?

MR. MADDEN: Yes. But this is not like being denied admission to a state's flagship university. I think for that proposition, I would cite Justice Powell's opinion in the Bakke case where he was at some pains to point out that a school integration plan is wholly dissimilar to a selective university admissions plan.

JUSTICE ALITO: If we look at the things that Parents are concerned about when they're considering where their children are going to high school, we look at things like SAT scores, for example, or performance on statewide tests, would we see that, the oversubscribed schools and the undersubscribed schools have similar test scores?

MR. MADDEN: It depends on what school you're talking about, Justice Alito. In this case, I think the most important point to start with is that there was no contention that there was any material difference in quality between the five popular high schools.

JUSTICE ALITO: Well, if we looked at Garfield and Cleveland, what would we find?

MR. MADDEN: You would find a reasonable basis to perceive a quality difference between those two schools, but this plan didn't assign any students to Cleveland.

I want to take a moment, if I can, to turn to the issue of individualized consideration, because so much emphasis has been placed on it in the earlier discussion.

It seems to us, first of all, that this Court in Grutter said that not all uses of race trigger the same objections and that the Court must be mindful of the context. This is not, as I've said, a selective or merit-based system where we adjudge one student to be better than the other. We do consider individual factors before we get to race, starting with choice and family connection, and how close you live to the school.

But ultimately, this is a distributive system which, as Justice Powell -- as I noted, Justice Powell said in the Bakke case, is quite wholly dissimilar to a merit or selective-based system. What it seems to us is being suggested by the United States and by the petitioner is a system that would force an individualized merit-based review on any kind of race conscious program, specifically an assignment to public schools.

That rule allows the means to define the ends; and it ends up, I think, defeating the purpose that the Court had of not stigmatizing --

CHIEF JUSTICE ROBERTS: But the reason that our prior tests have focused on individual determination is that the purpose of the Equal Protection Clause is to ensure that people are treated as individuals rather than based on the color of their skin. So saying that this doesn't involve individualized determinations simply highlights the fact that the decision to distribute, as you put it, was based on skin color and not any other factor.

MR. MADDEN: Mr. Chief Justice, in Grutter you said specifically that individualized review was required in the context of university admissions. In this context, the kind of review, the specific kind of review that I understand the United States to urge and the petitioner to urge, serves no purpose, and it may itself be stigmatizing in the context of public schools where everyone gets a seat.

JUSTICE GINSBURG: You're saying that individual treatment makes no sense in terms of the objective here. I thought that's what you were saying.

MR. MADDEN: Justice Ginsburg, that is correct. I am saying, however, that this plan, consistent with narrow tailoring, provided consideration of individual circumstances, including an appeal on hardship grounds for someone who felt that they had been denied a school that they needed to be in.

JUSTICE KENNEDY: But the emphasis on the fact that everybody gets into a school, it seems to me is misplaced, but the question is whether or not you can get into the school that you really prefer. And that in some cases depends solely on skin color. You know, it's like saying everybody can have a meal but only people with separate skin can get the dessert.

MR. MADDEN: Well, like the Michigan cases, sometimes student in the end of the day have an assignment determined by race. Just like in the university cases, at some point race will be a tipping factor. It's different, though, when we put someone in a basically comparable school.

CHIEF JUSTICE ROBERTS: Well, you're saying every -- I mean, everyone got a seat in Brown as well; but because they were assigned to those seats on the basis of race, it violated equal protection. How is your argument that there's no problem here because everybody gets a seat distinguishable?

MR. MADDEN: Because segregation is harmful. Integration, this Court has recognized in Swann, in the first Seattle case, has benefits. The district was --

JUSTICE SCALIA: Well, it seems to me you're saying you can't make an omelet without breaking eggs. Can you think of any area of the law in which we say whatever it takes, so long as there's a real need, whatever it takes -- I mean, if we have a lot of crime out there and the only way to get rid of it is to use warrantless searches, you know, fudge on some of the protections of the Bill of Rights, whatever it takes, we've got to do it?

Is there any area of the law that doesn't have some absolute restrictions?

MR. MADDEN: There are many areas of the law, certainly in the First Amendment and the Fourth Amendment, that have considerable flexibility.

JUSTICE SCALIA: But what about the Fourteenth? I thought that was one of the absolute restrictions, that you cannot judge and classify people on the basis of their race. You can pursue the objectives that your school board is pursuing, but at some point you come against an absolute, and aren't you just denying that?

MR. MADDEN: I think that in Grutter and Gratz, this Court rejected the absolute and instead described discretely, which we feel we need, and which is why we are not urging an absolute position. We say that we indeed comply with the requirements of narrow tailoring, and that the plan therefore should be upheld.

JUSTICE GINSBURG: And the question of integration, whether there was any use of a racial criterion, whether integration, using racial integration is the same as segregation, it seems to me is pretty far from the kind of headlines that attended the Brown decision. They were, at last, white and black children together on the same school bench. That seems to be worlds apart from saying we'll separate them.

MR. MADDEN: We certainly agree, Justice Ginsburg. We'd go one step further and note that in Brown, this Court said that the effects of segregated schools are worse.

CHIEF JUSTICE ROBERTS: There's no effort here on the part of the school to separate students on the basis of race. It's an assignment on the basis of race, correct?

MR. MADDEN: And it is in effect to bring students together in a mix that is not too far from their community.

I see that my time has expired. Thank you.

CHIEF JUSTICE ROBERTS: Thank you, Mr. Madden.

Mr. Korrell, you have four minutes remaining.

REBUTTAL ARGUMENT OF HARRY J.F. KORRELL

ON BEHALF OF PETITIONER

MR. KORRELL: Thank you, Mr. Chief Justice. There were some questions of my friend Mr. Madden about the record and the statistics about enrollment, and I'd like to draw the Court's attention, particularly Justice Breyer and Justice Stevens' questions about what the schools look like now.

If the Court looks at pages 6 and 7 of our reply brief, we provided the enrollment data. The information on page 7 comes from the school district website that provides enrollment data at the individual schools. In 2005 and 2006, enrollment at the oversubscribed schools is now 54 percent non-white, which is greater than it was under the district's --

JUSTICE BREYER: This is the -- as I gather, the plan where race is used, has to do only with the ninth grade. And therefore, what you would like to note is when you look at the ninth grade after they stopped using any racial criteria at all, what happened to those ninth grade classes. Did they become more heavily separated or did they retain their diversity? Are the numbers that you are about to read us, which I have in front of me, going to do that? Tell us that? I think they're about the whole school.

MR. KORRELL: They are, Your Honor, but they're about the whole school after four years of operating without the race preference. So each of the four years they're represented in the aggregate shows the effect that I think Your Honor was asking about.

So, the record in this case shows the Seattle schools are richly diverse. It's very important in our view that the Court not lose site of that. We've talked about integration and segregation, but I urge the Court to take a look at the data the petitioners submit regarding the actual enrollment in those schools.

A couple of other record citations I'd like to bring to the Court's attention. Justice Kennedy, I think, asked about considering race at a last resort. It's simply not the case that the school district looked at race as a last resort. And I would draw the Court's attention to the superintendent's testimony at joint appendix 224 and 25, where he said in essence, the reason we didn't consider race neutral plans is because we were interested in racial diversity.

JUSTICE BREYER: The numbers I have here, Franklin went from 25 percent white to 12.7 percent. Roosevelt, which was basically a white school, jumped up from about 51 to 59. Ballard jumped up from about 56 to 62. Then Garfield went down some, more mixed. But those were the worst ones; am I right on that?

MR. KORRELL: Your Honor, I think the numbers that you're reading are from the difference between the 2000 and -- '99 and the 2000 enrollments.

JUSTICE BREYER: Okay.

MR. KORRELL: The numbers I was trying to bring to the Court's attention were the difference between the enrollment under the race-based plan and the enrollment in 2005 and 2006, which shows significant and continued racial diversity in Seattle's high schools.

Counsel suggested also that there is no material difference among the five oversubscribed schools. And I would draw the Court's attention to the testimony of the board president at joint appendix 261 to 274, where she discusses in detail the programmatic differences. It is true that those five schools were oversubscribed and they were popular, but they all provide unique programs, some of which as we indicated in our briefs, required children to meet certain prerequisites to be able to attend.

JUSTICE GINSBURG: Was the board simultaneously trying to introduce similar programs or attractive programs in the undersubscribed schools?

MR. KORRELL: Your Honor, I'm perhaps not the best person to answer that. I believe the board has been trying to introduce programs at all of its schools that would make each school unique, and I think that includes the undersubscribed schools as well.

Justice Breyer asked a question about the -- about the process of this litigation, and my understanding is there was never a lawsuit against Seattle to compel desegregation, that they were always following a plan.

CHIEF JUSTICE ROBERTS: Thank you, counsel. The case is submitted. (Whereupon, at 11:02 a.m., the case in the above-entitled matter was submitted.)