127 S. Ct. 2738 (2007), argued 4 Dec. 2006, decided 28 June 2007 by vote of 5 to 4; Roberts filed an opinion partly for the Court, joined by Scalia, Kennedy, Thomas, and Alito, and partly on behalf of himself, Scalia, Thomas, and Alito; Thomas also concurred separately; Kennedy filed an opinion concurring in part and concurring in the judgment; Breyer filed a dissent, joined by Stevens, Souter, and Ginsburg; Stevens also dissented separately. This case has sometimes been portrayed as a search for the true defender of Brown v. Board of Education (1954): Was it the school district, which assigned students to schools on account of their race—making sure that at least 49 percent, but no more than 69 percent, of those at each school would be nonwhite? Or was it the parents whose children might have been denied admission to the school of their choice on account of their race?
Seattle tried to ensure that the racial composition of its individual high schools approximated that of its student population as a whole (although only two “races” were recognized by the plan: white and nonwhite). Students could choose which of the district's ten high schools they wished to attend. But when a racially imbalanced school received more applicants than it could accept, students “whose race ‘[would] serve to bring the school into balance’” were given priority over students whose race would be unhelpful (p. 2747). Of the four oversubscribed schools that were considered imbalanced, nonwhites enjoyed priority at three, while whites had priority at one. The companion case concerned a similar plan for elementary schools in the Louisville area.
The Supreme Court reversed the circuit court decisions, which had ruled in the school districts’ favor, and remanded the cases for further proceedings. Following a line of authority that includes Gratz v. Bollinger (2003), the majority maintained its position that strict scrutiny must be applied to racially discriminatory policies regardless of the victims’ racial identity. To be upheld, the plans would have to be narrowly tailored to serve a compelling purpose. The Court concluded that neither of the two lines of authority in which racially discriminatory education policies have been upheld in the past applied here.
First, the discriminatory policies could not be justified as a remedy for a past legal wrong. Seattle had never operated its schools in violation of Brown. While Louisville had done so, it had gone through a court-ordered busing phase, which lasted until 2000, when a federal court found that it had eliminated the vestiges associated with its former policy of segregation. As Justice Clarence Thomas's concurrence emphasized, racial imbalance is not in itself a wrong. Thus, unless the state had caused the imbalance by discrimination, there was no Fourteenth Amendment violation to be remedied.
Second, the majority concluded that Grutter v. Bollinger (2003)—the case in which the University of Michigan Law School's racially discriminatory diversity program was upheld—did not apply. Even assuming that racial diversity could serve as a compelling purpose outside of higher education, the defendants had not complied with Grutter, which held that “classification of applicants by race” could be upheld “only as part of a ‘highly individualized, holistic review’” (p. 2753). Neither defendant had shown an interest in ensuring that applicants who had exceptional records of community service or had overcome personal adversity would be distributed among its schools. Race was their only concern.