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Justice Breyer | 2,012 | 2 | concurring | Williams v. Illinois | https://www.courtlistener.com/opinion/802772/williams-v-illinois/ | Extraction “The crime-scene evidence “I used the proper was submitted in a proper- procedures and added ly sealed packaged, and I the proper chemical unpackaged it using the reagents to the sample proper precautions to to break open the cells ensure contamination did to free up the DNA so not occur. Using the that it became accessi- proper tests, I determined ble for further testing. I that DNA suitable for followed the proper testing was present in the precautions to ensure evidence. I used the proper contamination did not procedures to take cuttings occur. The procedures I or swabbings from the followed are generally evidence and to preserve accepted in the scien- them for further testing. tific community.” The procedures I followed are generally accepted in the scientific community.” 9. Technician #9: Quification 10. Technician #10: “I conducted a proper Amplification PCR process, placing “Using the proper proce- the sample in the prop- dures, I used the proper er equipment, running chemicals to measure the the proper number of amount of DNA in the cycles, and using the sample accurately and to proper chemical rea- normalize the sample to the gents to trigger the proper concentration. The reactions that copy the procedures I followed are DNA. I followed the generally accepted in the proper precautions to scientific community.” guard against contami- nation. The procedures I followed are generally accepted in the scientific (Continued) community.” 18 WILLIAMS v. ILLINOIS BREYER, J., concurring Appendix to opinion of BREYER, J. (Continued) 12. Technicians Electrophoresis #11 and #12: Report “We conducted a proper “Using the proper electrophoresis, using the computer software, we proper procedures to place properly transcribed the DNA in the properly the data produced by calibrated equipment run in the electropherogram the proper conditions. We into a report. We followed the proper precau- applied the proper tions to avoid cross-sample criteria to review the contamination. The proce- computer determina- dures we followed used are tions of what the allele generally accepted in the values are at each of scientific community.” the chromosomal locations analyzed. We properly docu- mented those allele values to produce the DNA profile. The procedures we fol- lowed are generally accepted in the scien- tific community.” C. Comparison Between the Two DNA Profiles 13. Analyst Analyst (who eventually testifies in court) compares the two electropherograms and reports, i.e., compares the elec- tropherograms and profiles from the crime-scene DNA to the defend’s DNA. Analyst then prepares her own report setting forth her conclusions about the DNA match. Cite as: 567 U. S. (2012) 1 THOMAS, J., concurring in judgment SUPREME |
Justice Breyer | 2,012 | 2 | concurring | Williams v. Illinois | https://www.courtlistener.com/opinion/802772/williams-v-illinois/ | U. S. (2012) 1 THOMAS, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 10–8505 SANDY WILLIAMS, PETITIONER v. ILLINOIS ON WRIT OF CERTIORARI TO THE SUPREME COURT OF ILLINOIS [June 18, 2012] JUSTICE THOMAS, concurring in the judgment. I agree with the plurality that the disclosure of Cellmark’s out-of-court statements through the expert testimony of Sandra Lambatos did not violate the Con- frontation Clause. I reach this conclusion, however, solely because Cellmark’s statements lacked the requisite “for- mality and solemnity” to be considered “ ‘testimonial’ ” for purposes of the Confrontation Clause. See Michigan v. 562 U.S. (2011) (THOMAS, J., concurring in judgment) (slip op., at 1). As I explain below, I share the dissent’s view of the plurality’s flawed analysis. I The threshold question in this case is whether Cell- mark’s statements were hearsay at all. As the Court has explained, “[t]he [Confrontation] Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” See v. Washington, ). Here, the State of Illinois contends that Cellmark’s state- ments—that it successfully derived a male DNA profile and that the profile came from L. J.’s swabs—were intro- duced only to show the basis of Lambatos’ opinion, and not for their truth. In my view, however, there was no plau- sible reason for the introduction of Cellmark’s statements 2 WILLIAMS v. ILLINOIS THOMAS, J., concurring in judgment other than to establish their truth. A Illinois Rule of Evidence 703 (2011) and its federal counterpart permit an expert to base his opinion on facts about which he lacks personal knowledge and to disclose those facts to the trier of fact. Relying on these Rules, the State contends that the facts on which an expert’s opinion relies are not to be considered for their truth, but only to explain the basis of his opinion. See (“By allowing an expert to reveal the information for this purpose alone, it will undoubtedly aid the jury in assessing the value of his opinion”); see also Advisory Committee’s Notes on Fed. Rule Evid. 703, 28 U.S. C. App., p. 361 (stating that ex- pert basis testimony is admissible “only for the purpose of assisting the jury in evaluating an expert’s opinion”). Accordingly, in the State’s view, the disclosure of expert “basis testimony” does not implicate the Confrontation Clause. I do not think that rules of evidence should so easily trump a defend’s confrontation right. To be sure, we should not “lightly swee[p] away an accepted rule” of federal or state evidence law, e, at 2 (internal |
Justice Breyer | 2,012 | 2 | concurring | Williams v. Illinois | https://www.courtlistener.com/opinion/802772/williams-v-illinois/ | of federal or state evidence law, e, at 2 (internal quotation marks omitted), when applying the Confrontation Clause. “Rules of limited admissibility are commonplace in evi- dence law.” Mnookin, Expert Evidence and the Confronta- tion Clause after v. Washington, 15 Johns. L. & Pol’y 791, 812 And, we often presume that courts and juries follow limiting instructions. See, e.g., at 415, n. 6. But we have recognized that concepts central to the application of the Confrontation Clause are ulti- mately matters of federal constitutional law that are not dictated by state or federal evidentiary rules. See Barber v. Page, (defining a consti- tutional standard for whether a witness is “unavailable” Cite as: 567 U. S. (2012) 3 THOMAS, J., concurring in judgment for purposes of the Confrontation Clause); see also Ohio v. Roberts, (recognizing that Barber “explored the issue of constitutional unavailability” (em- phasis added)). Likewise, we have held that limiting in- structions may be insufficient in some circumstances to protect against violations of the Confrontation Clause. See Of particular importance here, we have made sure that an out-of-court statement was introduced for a “legitimate, nonhearsay purpose” before relying on the not-for-its-truth rationale to dismiss the application of the Confrontation Clause. See In the defend testified that he gave a false confes- sion because police coerced him into parroting his accom- plice’s confession. On rebuttal, the prosecu- tion introduced the accomplice’s confession to demonstrate to the jury the ways in which the two confessions differed. –412. Finding no Confrontation Clause prob- lem, this Court held that the accomplice’s out-of-court confession was not introduced for its truth, but only to impeach the defend’s version of events. at 413– Although the Court noted that the confession was not hearsay “under traditional rules of evidence,” at 413, the Court did not accept that nonhearsay label at face value. Instead, the Court thoroughly examined the use of the out-of-court confession and the efficacy of a limiting instruction before concluding that the Confrontation Clause was satisfied “[i]n this context.” Unlike the confession in statements introduced to explain the basis of an expert’s opinion are not intro- duced for a plausible nonhearsay purpose. There is no meaningful distinction between disclosing an out-of-court statement so that the factfinder may evaluate the expert’s opinion and disclosing that statement for its truth. “To use the inadmissible information in evaluating the ex- pert’s testimony, the jury must make a preliminary judg- 4 WILLIAMS v. ILLINOIS THOMAS, J., concurring in judgment ment about whether this information is true.” D. Kaye, D. Bernstein, & J. Mnookin, The New Wigmore: A Treatise on |
Justice Breyer | 2,012 | 2 | concurring | Williams v. Illinois | https://www.courtlistener.com/opinion/802772/williams-v-illinois/ | Bernstein, & J. Mnookin, The New Wigmore: A Treatise on Evidence: Expert Evidence p. 196 (2d ed. 2011) (hereinafter Kaye). “If the jury believes that the basis evidence is true, it will likely also believe that the expert’s reliance is justified; inversely, if the jury doubts the accu- racy or validity of the basis evidence, it will be skeptical of the expert’s conclusions.” 1 Contrary to the plurality’s suggestion, this common- sense conclusion is not undermined by any longstand- ing historical practice exempting expert basis testimony from the rigors of the Confrontation Clause. Prior to the adoption of the Federal Rules of Evidence in 1975, an expert could render an opinion based only on facts that the expert had personally perceived or facts that the expert learned at trial, either by listening to the testimony of other witnesses or through a hypothetical question based on facts in evidence. See Advisory Committee’s Notes on Fed. Rule Evid. 703, 28 U.S. C. App., p. 361; 29 C. Wright & V. Gold, Federal Practice and Procedure pp. 300–301 (1997) (hereinafter Wright); 1 K. Broun et al., McCormick on Evidence p. 86 (herein- after Broun); Kaye at 156–157. In those situations, there was little danger that the expert would rely on testimonial hearsay that was not subject to confrontation because the expert and the witnesses on whom he relied were present at trial. It was not until 1975 that the uni- —————— 1 The plurality relies heavily on the fact that this case involved a bench trial, emphasizing that a judge sitting as factfinder is pre- sumed—more so than a jury—to “understand the limited reason for the disclosure” of basis testimony and to “not rely on that information for any improper purpose.” Ante, at 15. Even accepting that presumption, the point is not that the factfinder is unable to understand the restricted purpose for basis testimony. Instead, the point is that the purport- edly “limited reason” for such testimony—to aid the factfinder in evaluating the expert’s opinion—necessarily entails an evaluation of whether the basis testimony is true. Cite as: 567 U. S. (2012) 5 THOMAS, J., concurring in judgment verse of facts upon which an expert could rely was ex- panded to include facts of the case that the expert learned out of court by means other than his own perception. 1 Broun at 87; Kaye at 157. It is the expert’s disclosure of those facts that raises Confrontation Clause concerns.2 B Those concerns are fully applicable in this case. Lamba- tos opined that petitioner’s DNA profile matched the male profile derived from L. |
Justice Breyer | 2,012 | 2 | concurring | Williams v. Illinois | https://www.courtlistener.com/opinion/802772/williams-v-illinois/ | petitioner’s DNA profile matched the male profile derived from L. J.’s vaginal swabs. In reaching that conclusion, Lambatos relied on Cellmark’s out-of- court statements that the profile it reported was in fact derived from L. J.’s swabs, rather than from some other source. Thus, the validity of Lambatos’ opinion ultimately turned on the truth of Cellmark’s statements. The plural- ity’s assertion that Cellmark’s statements were merely relayed to explain “the assumptions on which [Lambatos’] opinion rest[ed],” e, at 3, overlooks that the value of Lambatos’ testimony depended on the truth of those very assumptions.3 —————— 2 In its discussion of history, the plurality relies on Beckwith v. Sydebotham, 1 Camp. 116, 170 Eng. Rep. 897 (K. B. 1807). In that case, experts were asked to render opinions on a ship’s seaworthiness based on facts read into court from the sworn ex parte deposition of a witness who purported to have seen the ship’s deficiencies. To be sure, Beckwith involved expert reliance on testimonial hearsay. But Beck- with was an English case decided after the ratification of the Confron- tation Clause, and this form of expert testimony does not appear to have been a common feature of early American evidentiary practice. See 29 Wright at 300–301; 1 Broun at 86–87; Kaye at 156–157. 3 Cellmark’s statements were not introduced for the nonhearsay pur- pose of showing their effect on Lambatos—i.e., to explain what prompted her to search the DNA database for a match. See, e.g., 30B M. Graham, Federal Practice and Procedure pp. 521–529 (interim ed. 2011) (noting that out-of-court statements introduced for their effect on listener do not implicate the Confrontation Clause). The statements 6 WILLIAMS v. ILLINOIS THOMAS, J., concurring in judgment It is no answer to say that other nonhearsay evidence established the basis of the expert’s opinion. Here, Lam- batos disclosed Cellmark’s statements that it generated a male DNA profile from L. J.’s swabs, but other evidence showed that L. J.’s swabs contained semen and that the swabs were shipped to and received from Cellmark. Ante, at 5–6. That evidence did not render Cellmark’s state- ments superfluous. Of course, evidence that Cellmark received L. J.’s swabs and later produced a DNA profile is some indication that Cellmark in fact generated the profile from those swabs, rather than from some other source (or from no source at all). Cf. (citing brief that describes “cases of documented ‘drylabbing’ where forensic analysts report results of tests that were never performed,” includ- ing DNA tests). But the only direct evidence to that effect was Cellmark’s statement, which Lambatos relayed to the |
Justice Breyer | 2,012 | 2 | concurring | Williams v. Illinois | https://www.courtlistener.com/opinion/802772/williams-v-illinois/ | that effect was Cellmark’s statement, which Lambatos relayed to the factfinder. In any event, the factfinder’s ability to rely on other evidence to evaluate an expert’s opinion does not alter the conclusion that basis testimony is admitted for its truth. The existence of other evidence corroborating the basis testimony may render any Confrontation Clause violation harmless, but it does not change the purpose of such testimony and thereby place it outside of the reach of the Confrontation Clause.4 I would thus conclude that —————— that Lambatos conveyed went well beyond what was necessary to explain why she performed the search. Lambatos did not merely disclose that she received a DNA profile from Cellmark. Rather, she further disclosed Cellmark’s statements that the profile was “male” and that it was “found in semen from the vaginal swabs of [L. J.].” App. 56. Those facts had nothing to do with her decision to conduct a search. They were introduced for their truth. 4 The plurality concludes that the Confrontation Clause would not be implicated here “even if the record did not contain any [other] evi- dence that could rationally support a finding that Cellmark produced a scientifically reliable DNA profile based on L. J.’s vaginal swab.” Ante, at 22. But, far from establishing a “legitimate” nonhearsay purpose for Cite as: 567 U. S. (2012) 7 THOMAS, J., concurring in judgment Cellmark’s statements were introduced for their truth. C The plurality’s contrary conclusion may seem of little consequence to those who view DNA testing and other forms of “hard science” as intrinsically reliable. But see (“Forensic evidence is not uniquely immune from the risk of manipulation”). Today’s holding, however, will reach beyond scientific evidence to ordinary out-of-court statements. For example, it is not uncommon for experts to rely on interviews with third parties in forming their opinions. See, e.g., 123–124, 729–730 (psychiatrist disclosed statements made by the defend’s acquaintances as part of the basis of her opin- ion that the defend was motivated to kill by his feelings of sexual frustration). It is no answer to say that “safeguards” in the rules of evidence will prevent the abuse of basis testimony. Ante, at 26. To begin with, courts may be willing to conclude that an expert is not acting as a “mere condui[t]” for hear- say, e, at 27, as long as he simply provides some opin- ion based on that hearsay. See Brief for Respondent 18, n. 4 (collecting cases). In addition, the hearsay may be the kind of fact on which experts in a field reasonably rely. See Fed. Rule Evid. 703; |
Justice Breyer | 2,012 | 2 | concurring | Williams v. Illinois | https://www.courtlistener.com/opinion/802772/williams-v-illinois/ | in a field reasonably rely. See Fed. Rule Evid. 703; N.E. 2d, at 731 a complete lack of other evidence tending to prove the facts conveyed by Cellmark’s statements would completely refute the not-for-its-truth rationale. The trial court, in announcing its verdict, expressly concluded that petitioner’s DNA matched the “DNA in the semen recovered from the victim’s vagina.” 4 R. JJJ151. Absent other evidence, it would have been impossible for the trial court to reach that conclusion with- out relying on the truth of Cellmark’s statement that its test results were based on the semen from L. J.’s swabs. 8 WILLIAMS v. ILLINOIS THOMAS, J., concurring in judgment opinions). Of course, some courts may determine that hearsay of this sort is not substially more probative than prejudicial and therefore should not be disclosed un- der Rule 703. But that balancing test is no substitute for a constitutional provision that has already struck the balance in favor of the accused. See 541 U. S., (“[The Confrontation Clause] commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross- examination”). II A Having concluded that the statements at issue here were introduced for their truth, I turn to whether they were “testimonial” for purposes of the Confrontation Clause. In the Court explained that “[t]he text of the Confrontation Clause applies to ‘witnesses’ against the accused—in other words, those who ‘bear testimony.’ ” (quoting 2 N. Webster, An Ameri- can Dictionary of the English Language (1828)). “ ‘Testi- mony,’ ” in turn, is “ ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” 541 U. S., In light of its text, I continue to think that the Confrontation Clause regulates only the use of statements bearing “indicia of solemnity.” v. Washington, (THOMAS, J., concurring in judgment in part and dissenting in part). This test comports with history because solemnity marked the practices that the Confrontation Clause was designed to eliminate, namely, the ex parte examination of wit- nesses under the English bail and committal statutes passed during the reign of Queen Mary. See ; 562 U. S., at (THOMAS, J., concurring in judgment) (slip op., at 1); at 43–45. Accordingly, I have concluded that the Confrontation Clause reaches Cite as: 567 U. S. (2012) 9 THOMAS, J., concurring in judgment “ ‘formalized testimonial materials,’ ” such as depositions, affidavits, and prior testimony, or statements resulting from “ ‘formalized dialogue,’ ” such as custodial interroga- tion. at (slip op., at 2); see also at 836–837.5 Applying |
Justice Breyer | 2,012 | 2 | concurring | Williams v. Illinois | https://www.courtlistener.com/opinion/802772/williams-v-illinois/ | at (slip op., at 2); see also at 836–837.5 Applying these principles, I conclude that Cellmark’s report is not a statement by a “witnes[s]” within the mean- ing of the Confrontation Clause. The Cellmark report lacks the solemnity of an affidavit or deposition, for it is neither a sworn nor a certified declaration of fact. No- where does the report attest that its statements accurately reflect the DNA testing processes used or the results ob- tained. See Report of Laboratory Examination, Lodging of Petitioner. The report is signed by two “reviewers,” but they neither purport to have performed the DNA testing nor certify the accuracy of those who did. See And, although the report was produced at the request of law enforcement, it was not the product of any sort of formal- ized dialogue resembling custodial interrogation. The Cellmark report is distinguishable from the labora- tory reports that we determined were testimonial in and in v. New Mexico, 564 U.S. (2011). In the re- ports in question were “sworn to before a notary public by [the] analysts” who tested a substance for cocaine. 557 U. S., at 308. In the report, though unsworn, included a “Certificate of Analyst” signed by the forensic analyst who tested the defend’s blood sample. 564 U. S., at (slip op., at 3). The analyst “affirmed that —————— 5 In addition, I have stated that, because the Confrontation Clause “sought to regulate prosecutorial abuse occurring through use of ex parte statements,” it “also reaches the use of technically informal statements when used to evade the formalized process.” 547 U. S., at 838 (opinion concurring in judgment in part and dissenting in part). But, in this case, there is no indication that Cellmark’s state- ments were offered “in order to evade confrontation.” 10 WILLIAMS v. ILLINOIS THOMAS, J., concurring in judgment ‘[t]he seal of th[e] sample was received intact and broken in the laboratory,’ that ‘the statements in [the analyst’s block of the report] are correct,’ and that he had ‘followed the procedures set out on the reverse of th[e] report.’ ” The dissent insists that the report and Cellmark’s report are equally formal, separated only by such “minutia” as the fact that Cellmark’s report “is not labeled a ‘certificate.’ ” Post, at 22–23 (opinion of KAGAN, J.). To the contrary, what distinguishes the two is that Cellmark’s report, in substance, certifies nothing. See su- pra, at 9. That distinction is constitutionally signific because the scope of the confrontation right is properly limited to extrajudicial statements similar in solemnity to the Marian examination practices that the Confrontation |
Justice Breyer | 2,012 | 2 | concurring | Williams v. Illinois | https://www.courtlistener.com/opinion/802772/williams-v-illinois/ | in solemnity to the Marian examination practices that the Confrontation Clause was designed to prevent. See – 836 (opinion of THOMAS, J.). By certifying the truth of the analyst’s representations, the unsworn report bore “a ‘striking resemblance,’ ” (quot- ing ), to the Marian practice in which magistrates examined witnesses, typically on oath, and “certif[ied] the results to the court.” And, in we observed that “ ‘certificates’ are functionally identical to live, in-court testimony, doing precisely what a witness does on direct examination.” 557 U. S., at 310–. Cellmark’s report is marked by no such indicia of solemnity. Contrary to the dissent’s suggestion, acknowledging that the Confrontation Clause is implicated only by for- malized statements that are characterized by solemnity will not result in a prosecutorial conspiracy to elude con- frontation by using only informal extrajudicial statements against an accused. As I have previously noted, the Con- frontation Clause reaches bad-faith attempts to evade the formalized process. See (quoting ). Moreover, the prosecution’s use of Cite as: 567 U. S. (2012) 11 THOMAS, J., concurring in judgment informal statements comes at a price. As the dissent recognizes, such statements are “less reliable” than for- malized statements, post, at 24, and therefore less persua- sive to the factfinder. Cf. post, at 21–22, n. 6 (arguing that prosecutors are unlikely to “forgo DNA evidence in favor of less reliable eyewitness testimony” simply because the defend is entitled to confront the DNA analyst). But, even assuming that the dissent accurately predicts an upswing in the use of “less reliable” informal statements, that result does not “turn the Confrontation Clause upside down.” Post, at 24. The Confrontation Clause does not require that evidence be reliable, but that the reliability of a specific “class of testimonial statements”—formalized statements bearing indicia of solemnity—be assessed through cross-examination. See –310. B Rather than apply the foregoing principles, the plurality invokes its “primary purpose” test. The original formula- tion of that test asked whether the primary purpose of an extrajudicial statement was “to establish or prove past events potentially relev to later criminal prosecution.” I agree that, for a statement to be testimonial within the meaning of the Confrontation Clause, the declar must primarily intend to establish some fact with the understanding that his statement may be used in a criminal prosecution. See 562 U. S., at (SCALIA, J., dissenting) (slip op., at 2–3). But this necessary criterion is not sufficient, for it sweeps into the ambit of the Confrontation Clause statements that lack formality and solemnity and is thus “disconnected from history.” at 838–842 (opinion concurring in judgment |
Justice Breyer | 2,012 | 2 | concurring | Williams v. Illinois | https://www.courtlistener.com/opinion/802772/williams-v-illinois/ | thus “disconnected from history.” at 838–842 (opinion concurring in judgment in part and dissenting in part); at (opinion concurring in judgment) (slip op., at 1). In addition, a primary purpose inquiry divorced from solem- 12 WILLIAMS v. ILLINOIS THOMAS, J., concurring in judgment nity is unworkable in practice. ; Bry- at (slip op., at 1). Statements to police are often made both to resolve an ongoing emergency and to establish facts about a crime for potential prosecution. The primary purpose test gives courts no principled way to assign primacy to one of those purposes. at 839. The solemnity requirement is not only true to the text and history of the Confrontation Clause, but goes a long way toward resolving that practical difficulty. If a statement bears the formality and solemnity necessary to come within the scope of the Clause, it is highly unlikely that the statement was primarily made to end an ongoing emergency. The shortcomings of the original primary purpose test pale in comparison, however, to those plaguing the refor- mulated version that the plurality suggests today. The new primary purpose test asks whether an out-of-court statement has “the primary purpose of accusing a targeted individual of engaging in criminal conduct.” Ante, at 29. That test lacks any grounding in constitutional text, in history, or in logic. The new test first requires that an out-of-court state- ment be made “for the purpose of proving the guilt of a particular criminal defend.” Ante, at 30 (emphasis added). Under this formulation, statements made “before any suspect was identified” are beyond the scope of the Confrontation Clause. See e, at 3. There is no textual justification, however, for limiting the confrontation right to statements made after the accused’s identity became known. To be sure, the Sixth Amendment right to con- frontation attaches “[i]n criminal prosecutions,” at which time the accused has been identified and appre- hended. But the text of the Confrontation Clause does not constrain the time at which one becomes a “witnes[s].” Indeed, we have previously held that a declar may become a “witnes[s]” before the accused’s prosecution. See Cite as: 567 U. S. (2012) 13 THOMAS, J., concurring in judgment –51 (rejecting the view that the Confrontation Clause applies only to in-court testimony). Historical practice confirms that a declar could become a “witnes[s]” before the accused’s identity was known. As previously noted, the confrontation right was a response to ex parte examinations of witnesses in 16th- century England. Such examinations often occurred after an accused was arrested or bound over for trial, but some examinations occurred while the accused |
Justice Breyer | 2,012 | 2 | concurring | Williams v. Illinois | https://www.courtlistener.com/opinion/802772/williams-v-illinois/ | over for trial, but some examinations occurred while the accused remained “un- known or fugitive.” J. Langbein, Prosecuting Crime in the Renaissance 90 (1974) (describing examples, including the deposition of a victim who was swindled out of 20 shillings by a “ ‘cunning man’ ”); see also 1 J. A History of the Criminal Law of England 217–218 (1883) (describ- ing the sworn examinations of witnesses by coroners, who were charged with investigating suspicious deaths by asking local citizens if they knew “who [was] culpable either of the act or of the force” (internal quotation marks omitted)). There is also little logical justification for the plurality’s rule. The plurality characterizes Cellmark’s report as a statement elicited by police and made by Cellmark not “to accuse petitioner or to create evidence for use at trial,” but rather to resolve the ongoing emergency posed by “a dan- gerous rapist who was still at large.” Ante, at 31. But, as I have explained, that distinction is unworkable in light of the mixed purposes that often underlie statements to the police. See The difficulty is only compound- ed by the plurality’s attempt to merge the purposes of both the police and the declar. See e, at 29; at – (majority opinion) (slip op., at 20–23). But if one purpose must prevail, here it should surely be the evidentiary one, whether viewed from the perspective of the police, Cellmark, or both. The police confirmed the presence of semen on L. J.’s vaginal swabs on February 15, 2000, placed the swabs in a freezer, and waited until 14 WILLIAMS v. ILLINOIS THOMAS, J., concurring in judgment November 28, 2000, to ship them to Cellmark. App. 30– 34, 51–52. Cellmark, in turn, did not send its report to the police until April 3, 2001, over a year after L. J.’s rape. Given this timeline, it strains credulity to assert that the police and Cellmark were primarily concerned with the exigencies of an ongoing emergency, rather than with producing evidence in the ordinary course. In addition to requiring that an out-of-court statement “targe[t]” a particular accused, the plurality’s new primary purpose test also considers whether the statement is so “inherently inculpatory,” e, at 3, that the declar should have known that his statement would incriminate the accused. In this case, the plurality asserts that “[t]he technicians who prepare a DNA profile generally have no way of knowing whether it will turn out to be incriminat- ing or exonerating—or both,” e, at 32, and thus “no one at Cellmark could have possibly known that the profile that it produced |
Justice Breyer | 2,012 | 2 | concurring | Williams v. Illinois | https://www.courtlistener.com/opinion/802772/williams-v-illinois/ | could have possibly known that the profile that it produced would turn out to inculpate petitioner,” e, at 31. Again, there is no textual justification for this limitation on the scope of the Confrontation Clause. In Melendez- Diaz, we held that “[t]he text of the [Sixth] Amendment contemplates two classes of witnesses—those against the defend and those in his favor.” –314. We emphasized that “there is not a third category of wit- nesses, helpful to the prosecution, but somehow immune from confrontation.” Thus, the distinction between those who make “inherently inculpatory” state- ments and those who make other statements that are merely “helpful to the prosecution” has no foundation in the text of the Amendment. It is also contrary to history. The 16th-century Marian statutes instructed magistrates to transcribe any infor- mation by witnesses that “ ‘shall be material to prove the felony.’ ” See, e.g., 1 (quoting 1 & 2 Phil. & Mary, ch. 13 (1554)). Magistrates in the 17th and Cite as: 567 U. S. (2012) 15 THOMAS, J., concurring in judgment 18th centuries were also advised by practice manuals to take the ex parte examination of a witness even if his evi- dence was “weak” or the witness was “unable to inform any material thing against” an accused. J. Beattie, Crime and the Courts in England: 1660–1800, p. 272 (1986) (internal quotation marks omitted). Thus, neither law nor practice limited ex parte examinations to those witnesses who made “inherently inculpatory” statements. This requirement also makes little sense. A statement that is not facially inculpatory may turn out to be highly probative of a defend’s guilt when considered with other evidence. Recognizing this point, we previously rejected the view that a witness is not subject to confron- tation if his testimony is “inculpatory only when taken together with other evidence.” at 313. I see no justification for reviving that discredited approach, and the plurality offers none.6 * * * Respondent and its amici have emphasized the econom- ic and logistical burdens that would be visited upon States should every analyst who reports DNA results be required to testify at trial. See, e.g., e, at 32 (citing brief stating that some crime labs use up to 12 technicians when test- ing a DNA sample). These burdens are largely the prod- uct of a primary purpose test that reaches out-of-court statements well beyond the historical scope of the Con- frontation Clause and thus sweeps in a broad range of sources on which modern experts regularly rely. The —————— 6 The plurality states that its test “will not prejudice any defend |
Justice Breyer | 2,012 | 2 | concurring | Williams v. Illinois | https://www.courtlistener.com/opinion/802772/williams-v-illinois/ | plurality states that its test “will not prejudice any defend who really wishes to probe the reliability” of out-of-court statements introduced in his case because the person or persons who made the statements “may always be subpoenaed by the defense and questioned at trial.” Ante, at 4. rejected this reasoning as well, holding that the defend’s subpoena power “is no substitute for the right of confrontation.” 16 WILLIAMS v. ILLINOIS THOMAS, J., concurring in judgment proper solution to this problem is not to carve out a Con- frontation Clause exception for expert testimony that is rooted only in legal fiction. See e, at 3. Nor is it to create a new primary purpose test that ensures that DNA evidence is treated differently. See Rather, the solution is to adopt a reading of the Confrontation Clause that respects its historically limited application to a nar- row class of statements bearing indicia of solemnity. In forgoing that approach, today’s decision diminishes the Confrontation Clause’s protection in cases where experts convey the contents of solemn, formalized statements to explain the bases for their opinions. These are the very cases in which the accused should “enjoy the right to be confronted with the witnesses against him.” Cite as: 567 U. S. (2012) 1 KAGAN, J., dissenting SUPREME COURT OF THE UNITED STATES No. 10–8505 SANDY WILLIAMS, PETITIONER v. |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | These cases consider the longstanding efforts of two local school boards to integrate their public schools. The school board plans before us resemble many others adopted in the last 0 years by primary and secondary schools through the Nation. All of those plans represent local efforts to bring ab the kind of racially integrated education that long ago promisedefforts that this Court has repeatedly required, permitted, and encouraged local authorities to undertake. This Court has recognized that the public interests at stake in such cases are "compelling." We have approved of "narrowly tailored" plans that are no less race-conscious than the plans before us. And we have understood that the Constitution permits local communities to adopt desegregation plans even where it does not require them to do so. The plurality pays inadequate attention to this law, to past opinions' rationales, their language, and the contexts in which they arise. As a result, it reverses course and reaches the wrong conclusion. n doing so, it distorts precedent, it misapplies the relevant constitutional principles, it announces legal rules that will obstruct efforts by state and local governments to deal effectively the growing resegregation of public schools, it threatens to substitute for present calm a disruptive round of racerelated litigation, and it undermines rown's promise of integrated primary and secondary education that local communities have sought to make a reality. This cannot be justified in the name of the Equal Protection Clause. Facts The historical and factual context in which these cases arise is critical. n rown, this Court held that the government's segregation of schoolchildren by race violates the Constitution's promise of equal protection. The Court emphasized that "education is perhaps the most important function of state and local governments." And it thereby set the Nation on a path toward public school integration. n dozens of subsequent cases, this Court told school districts previously segregated by law what they must do at a minimum to comply rown's constitutional holding. The measures required by those cases often included race-conscious practices, such as mandatory busing and race-based restrictions on voluntary transfers. See, e.g., Columbus d. of ; ; eyond those minimum requirements, the Court left much of the determination of how to achieve integration to the judgment of local communities. Thus, in respect to race-conscious desegregation measures that the Constitution permitted, but did not require (measures similar to those at issue here), this Court unanimously stated: "School authorities are traditionally charged broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is in the broad discretionary powers of school authorities." As a result, different districtssome acting under court decree, some acting in order to avoid threatened lawsuits, some seeking to comply federal administrative orders, some acting purely voluntarily, some acting after federal courts had dissolved earlier ordersadopted, modified, and experimented hosts of different kinds of plans, including race-conscious plans, all a similar objective: greater racial integration of public schools. See F. Welch & A. Light, New Evidence on School Desegregation v (hereinafter Welch) (prepared for the Commission on Civil Rights) (reviewing a sample of 2 school districts, constituting 20% of national public school enrollment, that had experimented nearly 300 different plans over 8 years). The techniques that different districts have employed range "from voluntary transfer programs to mandatory reassignment." And the design of plans has been "dictated by both the law and the specific needs of the district." Overall these efforts brought ab considerable racial integration. More recently, however, progress has stalled. etween and 980, the number of black children attending a school where minority children constituted more than half of the school fell from 77% to 63% in the Nation (from 8% to 7% in the Sh) but then reversed direction by the year rising from 63% to 72% in the Nation (from 7% to 69% in the Sh). Similarly, between and 980, the number of black children attending schools that were more than 90% minority fell from 64% to 33% in the Nation (from 78% to 23% in the Sh), but that too reversed direction, rising by the year from 33% to 37% in the Nation (from 23% to 3% in the Sh). As of 2002, almost 2.4 million students, or over % of all public school enrollment, attended schools a white population of less than %. Of these, 2.3 million were black and Latino students, and only 72,000 were white. Today, more than one in six black children attend a school that is 99-00% minority. See Appendix A, infra. n light of the evident risk of a return to school systems that are in fact (though not in law) resegregated, many school districts have felt a need to maintain or to extend their integration efforts. The upshot is that myriad school districts operating in myriad circumstances have devised myriad plans, often race-conscious elements, all for the sake |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | devised myriad plans, often race-conscious elements, all for the sake of eradicating earlier school segregation, bringing ab integration, or preventing retrogression. Seattle and Louisville are two such districts, and the histories of their present plans set forth typical school integration stories. describe those histories at length in order to highlight three important features of these cases. First, the school districts' plans serve "compelling interests" and are "narrowly tailored" on any reasonable definition of those terms. Second, the distinction between de jure segregation (caused by school systems) and de facto segregation (caused, e.g., by housing patterns or generalized societal discrimination) is meaningless in the present context, thereby dooming the plurality's endeavor to find support for its views in that distinction. Third, real-world efforts to substitute racially diverse for racially segregated schools (however caused) are complex, to the point where the Constitution cannot plausibly be interpreted to rule categorically all local efforts to use means that are "conscious" of the race of individuals. n both Seattle and Louisville, the local school districts began schools that were highly segregated in fact. n both cities plaintiffs filed lawsuits claiming unconstitutional segregation. n Louisville, a federal district court found that school segregation reflected pre-rown state laws separating the races. n Seattle, the plaintiffs alleged that school segregation unconstitutionally reflected not only generalized societal discrimination and residential housing patterns, but also school board policies and actions that had helped to create, maintain, and aggravate racial segregation. n Louisville, a federal court entered a remedial decree. n Seattle, the parties settled after the school district pledged to undertake a desegregation n both cities, the school boards adopted plans designed to achieve integration by bringing ab more racially diverse schools. n each city the school board modified its plan several times in light of, for example, hostility to busing, the threat of resegregation, and the desirability of introducing greater student choice. And in each city, the school boards' plans have evolved over time in ways that progressively diminish the plans' use of explicit race-conscious criteria. The histories that follow set forth these basic facts. They are based upon numerous sources, which for ease of exposition have cataloged, along their corresponding citations, at Appendix infra. A Seattle Segregation, 9 to 96. During and just after World War significant numbers of black Americans began to make Seattle their home. Few black residents lived side the central section of the city. Most worked at unskilled jobs. Although black students made up ab 3% of the total Seattle population in the mid-90's, nearly all black children attended schools where a majority of |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | nearly all black children attended schools where a majority of the population was minority. Elementary schools in central Seattle were between 60% and 80% black; Garfield, the central district high school, was more than 0% minority; schools side the central and sheastern sections of Seattle were virtually all white. 2. Preliminary Challenges, 96 to 969. n 96, a memo for the Seattle School oard reported that school segregation reflected not only segregated housing patterns but also school board policies that permitted white students to transfer of black schools while restricting the transfer of black students into white schools. n 98, black parents whose children attended Harrison Elementary School ( a black student population of over 7%) wrote the Seattle board, complaining that the "`boundaries for the Harrison Elementary School were not set in accordance the long-established standards of the School District but were arbitrarily set an end to excluding colored children from McGilvra School, which is adjacent to the Harrison school district.' " n at the insistence of the National Association for the Advancement of Colored People (NAACP) and other community groups, the school board adopted a new racebased transfer policy. The new policy added an explicitly racial criterion: f a place exists in a school, then, irrespective of other transfer criteria, a white student may transfer to a predominantly black school, and a black student may transfer to a predominantly white school. At that time one high school, Garfield, was ab two-thirds minority; eight high schools were virtually all white. n the transfer program's first year, 239 black students and 8 white students transferred. n 969, ab 2,200 (of 0,383 total) of the district's black students and ab 400 of the district's white students took advantage of the For the next decade, annual program transfers remained at approximately this level. 3. The NAACP's First Legal Challenge and Seattle's Response, 969 to 977. n 969 the NAACP filed a federal lawsuit against the school board, claiming that the board had "unlawfully and unconstitutionally" "establish[ed]" and "maintain[ed]" a system of "racially segregated public schools." The complaint said that 77% of black public elementary school students in Seattle attended 9 of the city's 86 elementary schools and that 23 of the remaining schools had no black students at all. Similarly, of the4 black students enrolled in the 2 senior high schools in Seattle, (or 78.8%) attended 3 senior high schools, and 900 (.6%) attended a single school, Garfield. The complaint charged that the school board had brought ab this segregated system in part by "mak[ing] and enforc[ing]" certain "rules and regulations," in |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | part by "mak[ing] and enforc[ing]" certain "rules and regulations," in part by "drawing boundary lines" and "executing school attendance policies" that would create and maintain "predominantly Negro or non-white schools," and in part by building schools "in such a manner as to restrict the Negro plaintiffs and the class they represent to predominantly negro or non-white schools." The complaint also charged that the board discriminated in assigning teachers. The board responded to the lawsuit by introducing a plan that required race-based transfers and mandatory busing. The plan created three new middle schools at three school buildings in the predominantly white north end. t then created a "mixed" student body by assigning to those schools students who would otherwise attend predominantly white, or predominantly black, schools elsewhere. t used explicitly racial criteria in making these assignments (i.e., it deliberately assigned to the new middle schools black students, not white students, from the black schools and white students, not black students, from the white schools). And it used busing to transport the students to their new assignments. The plan provoked considerable local opposition. Opponents brought a lawsuit. ut eventually a state court found that the mandatory busing was lawful. n 976-977, the plan involved the busing of ab 00 middle school students (300 black students and 200 white students). Another200 black students and 400 white students participated in the previously adopted voluntary transfer program. Thus ab 2,000 students of a total district population of ab 60,000 students were involved in one or the other transfer program. At that time, ab 20% or 2,000 of the district's students were black. And the board continued to describe 26 of its 2 schools as "segregated." 4. The NAACP's Second Legal Challenge, 977. n 977, the NAACP filed another legal complaint, this time the federal Department of Health, Education, and Welfare's Office for Civil Rights (OCR). The complaint alleged that the Seattle School oard had created or perpetuated unlawful racial segregation through, e.g., certain school-transfer criteria, a construction program that need-lessly built new schools in white areas, district line-drawing criteria, the maintenance of inferior facilities at black schools, the use of explicit racial criteria in the assignment of teachers and other staff, and a general pattern of delay in respect to the implementation of promised desegregation efforts. The OCR and the school board entered into a formal settlement agreement. The agreement required the board to implement what became known as the "Seattle Plan." The Seattle Plan: Mandatory using, 978 to 988. The board began to implement the Seattle Plan in 978. This plan labeled "racially imbalanced" |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | the Seattle Plan in 978. This plan labeled "racially imbalanced" any school at which the percentage of black students exceeded by more than 20% the minority population of the school district as a whole. t applied that label to 26 schools, including 4 high schoolsCleveland (72.8% minority), Franklin (76.6% minority), Garfield (78.4% minority), and Rainier each (8.9% minority). The plan paired (or "triaded") "imbalanced" black schools "imbalanced" white schools. t then placed some grades (say, third and fourth grades) at one school building and other grades (say, fifth and sixth grades) at the other school building. And it thereby required, for example, all fourth grade students from the previously black and previously white schools first to attend together what would now be a "mixed" fourth grade at one of the school buildings and then the next year to attend what would now be a "mixed" fifth grade at the other school building. At the same time, the plan provided that a previous "black" school would remain ab 0% black, while a previous "white" school would remain ab two-thirds white. t was consequently necessary to decide some care which students would attend the new "mixed" grade. For this purpose, administrators cataloged the racial makeup of each neighborhood housing block. The school district met its percentage goals by assigning to the new "mixed" school an appropriate number of "black" housing blocks and "white" housing blocks. At the same time, transport from house to school involved extensive busing, ab half of all students attending a school other than the one closest to their home. The Seattle Plan achieved the school integration that it sought. Just prior to the plan's implementation, for example, 4 of Seattle's high schools were "imbalanced," i.e., almost exclusively "black" or almost exclusively "white." y only two were of "balance." y 980 only Cleveland remained of "balance" (as the board defined it) and that by a mere two students. Nonetheless, the Seattle Plan, due to its busing, provoked serious opposition in the State. See generally Thus, Washington state voters enacted an initiative that amended state law to require students to be assigned to the schools closest to their homes. The Seattle School oard challenged the constitutionality of the initiative. This Court then held that the initiativewhich would have prevented the Seattle Plan from taking effectviolated the Fourteenth Amendment. 6. Student Choice, 988 to y 988, many white families had left the school district, and many Asian families had moved in. The public school population had fallen from ab 00,000 to less than 0,000. The racial makeup of the school population |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | less than 0,000. The racial makeup of the school population amounted to 43% white, % black, and 23% Asian or Pacific slander, Hispanics and Native Americans making up the rest. The cost of busing, the harm that members of all racial communities feared that the Seattle Plan caused, the desire to attract white families back to the public schools, and the interest in providing greater school choice led the board to abandon busing and to substitute a new student assignment policy that resembles the plan now before us. The new plan permitted each student to choose the school he or she wished to attend, subject to race-based constraints. n respect to high schools, for example, a student was given a list of a subset of schools, carefully selected by the board to balance racial distribution in the district by including neighborhood schools and schools in racially different neighborhoods elsewhere in the city. The student could then choose among those schools, indicating a first choice, and other choices the student found acceptable. n making an assignment to a high school, the district would give first preference to a student a sibling already at the school. t gave second preference to a student whose race differed from a race that was "over-represented" at the school (i.e., a race that accounted for a higher percentage of the school population than of the total district population). t gave third preference to students residing in the neighborhood. t gave fourth preference to students who received child care in the neighborhood. n a typical year, say, 99, ab 20,000 potential high school students participated. Ab 68% received their first choice. Another % received an "acceptable" choice. A further % were assigned to a school they had not listed. 7. The Current Plan, 999 to the Present. n 996, the school board adopted the present plan, which began in 999. n doing so, it sought to deemphasize the use of racial criteria and to increase the likelihood that a student would receive an assignment at his first or second choice high school. The district retained a racial tiebreaker for oversubscribed schools, which takes effect only if the school's minority or majority enrollment falls side of a 30% range centered on the minority/majority population ratio in the district. At the same time, all students were free subsequently to transfer from the school at which they were initially placed to a different school of their choice regard to race. Thus, at worst, a student would have to spend one year at a high school he did not pick as |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | year at a high school he did not pick as a first or second choice. The new plan worked roughly as expected for the two school years during which it was in effect (999- and -200). n the -200 school year, for example, the racial tiebreaker, the entering ninth grade class at Franklin High School had a 60% minority population; the racial tiebreaker that same class at Franklin would have had an almost 80% minority population. (We consider only the ninth grade since only students entering that class were subject to the tiebreaker, and because the plan was not in place long enough to change the composition of an entire school.) n the year -2006, by which time the racial tiebreaker had not been used for several years, Franklin's overall minority enrollment had risen to 90%. During the period the tiebreaker applied, it typically affected ab 300 students per year. etween 80% and 90% of all students received their first choice assignment; between 89% and 97% received their first or second choice assignment. Petitioner Parents nvolved in Community Schools objected to Seattle's most recent plan under the State and Federal Constitutions. n due course, the Washington Supreme Court, the Federal District Court, and the Court of Appeals for the Ninth Circuit (sitting en banc) rejected the challenge and found Seattle's plan lawful. Louisville efore the Lawsuit, 94 to n 96, two years after rown made clear that Kentucky could no longer require racial segregation by law, the Louisville oard of Education created a geography-based student assignment plan designed to help achieve school integration. At the same time it adopted an open transfer policy under which approximately 3,000 of Louisville's000 students applied for transfer. y however, the Louisville School District remained highly segregated. Approximately half the district's public school enrollment was black; ab half was white. Fourteen of the district's nineteen nonvocational middle and high schools were close to totally black or totally white. Nineteen of the district's forty-six elementary schools were between 80% and 00% black. Twenty-one elementary schools were between roughly 90% and 00% white. 2. Court-mposed Guidelines and using, to 99. n civil rights groups and parents, claiming unconstitutional segregation, sued the Louisville oard of Education in federal court. The original litigation eventually became a lawsuit against the Jefferson County School System, which in April 97 absorbed Louisville's schools and combined them those of the surrounding suburbs. (For ease of exposition, shall still use "Louisville" to refer to what is now the combined districts.) After preliminary rulings and an eventual victory for the plaintiffs in the Court of |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | an eventual victory for the plaintiffs in the Court of Appeals for the Sixth Circuit, the District Court in July 97 entered an order requiring desegregation. The order's requirements reflected a (newly enlarged) school district student population of ab 3,000, approximately 20% of whom were black. The order required the school board to create and to maintain schools student populations that ranged, for elementary schools, between 2% and 40% black, and for secondary schools ( one exception), between 2.% and 3% black. The District Court also adopted a complex desegregation plan designed to achieve the order's targets. The plan required redrawing school attendance zones, closing 2 schools, and busing groups of students, selected by race and the first letter of their last names, to schools side their immediate neighborhoods. The plan's initial busing requirements were extensive, involving the busing of 23,000 students and a transportation fleet that had to "operate from early in the morning until late in the evening." For typical students, the plan meant busing for several years (several more years for typical black students than for typical white students). The following notice, published in a Louisville newspaper in 976, gives a sense of how the district's race-based busing plan operated in practice: Louisville Courier Journal, June 8, 976 ). The District Court monitored implementation of the n 978, it found that the plan had brought all of Louisville's schools in its "`guidelines' for racial composition" for "at least a substantial portion of the [previous] three years." t removed the case from its active docket while stating that it expected the board "to continue to implement those portions of the desegregation order which are by their nature of a continuing effect." y after several schools had fallen of compliance the order's racial percentages due to shifting demographics in the community, the school board revised its desegregation n doing so, the board created a new racial "guideline," namely a "floating range of 0% above and 0% below the countywide average for the different grade levels." The board simultaneously redrew district boundaries so that middle school students could attend the same school for three years and high school students for four years. t added "magnet" programs at two high schools. And it adjusted its alphabet-based system for grouping and busing students. The board estimated that its new plan would lead to annual reassignment ( busing) of ab 8,00 black students and ab 8,000 white students. 3. Student Choice and Project Renaissance, 99 to 996. y 99, the board had concluded that assigning elementary school students to two or more schools |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | that assigning elementary school students to two or more schools during their elementary school years had proved educationally unsound and, if continued, would undermine Kentucky's newly adopted Education Reform Act. t consequently conducted a nearly year-long review of its n doing so, it consulted widely parents and other members of the local community, using public presentations, public meetings, and various other methods to obtain the public's input. At the conclusion of this review, the board adopted a new plan, called "Project Renaissance," that emphasized student choice. Project Renaissance again revised the board's racial guidelines. t provided that each elementary school would have a black student population of between % and 0%; each middle and high school would have a black population and a white population that fell in a range, the boundaries of which were set at % above and % below the general student population percentages in the county at that grade level. The plan then drew new geographical school assignment zones designed to satisfy these guide-lines; the district could reassign students if schools failed to meet the guidelines and was required to do so if a school repeatedly missed these targets. n respect to elementary schools, the plan first drew a neighborhood line around each elementary school, and it then drew a second line around groups of elementary schools (called "clusters"). t initially assigned each student to his or her neighborhood school, but it permitted each student freely to transfer between elementary schools in each cluster provided that the transferring student (a) was black if transferring from a predominantly black school to a predominantly white school, or (b) was white if transferring from a predominantly white school to a predominantly black school. Students could also apply to attend magnet elementary schools or programs. The plan required each middle school student to be assigned to his or her neighborhood school unless the student applied for, and was accepted by, a magnet middle school. The plan provided for "open" high school enrollment. Every 9th or 0th grader could apply to any high school in the system, and the high school would accept applicants according to set criteriaone of which consisted of the need to attain or remain in compliance the plan's racial guidelines. Finally, the plan created two new magnet schools, one each at the elementary and middle school levels. 4. The Current Plan: Project Renaissance Modified, 996 to n 99 and 996, the Louisville School oard, the help of a special "Planning Team," community meetings, and other official and unofficial study groups, monitored the effects of Project Renaissance and |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | unofficial study groups, monitored the effects of Project Renaissance and considered proposals for improvement. Consequently, in 996, the board modified Project Renaissance, thereby creating the present At the time, the district's public school population was approximately 30% black. The plan consequently redrew the racial "guidelines," setting the boundaries at % to 0% black for all schools. t again redrew school assignment boundaries. And it expanded the transfer opportunities available to elementary and middle school pupils. The plan forbade transfers, however, if the transfer would lead to a school population side the guideline range, i.e., if it would create a school where fewer than % or more than 0% of the students were black. The plan also established "Parent Assistance Centers" to help parents and students navigate the school selection and assignment process. t pledged the use of other resources in order to "encourage all schools to achieve an African-American enrollment equivalent to the average district-wide African-American enrollment at the school's respective elementary, middle or high school level." And the plan continued use of magnet schools. n 999, several parents brought a lawsuit in federal court attacking the plan's use of racial guidelines at one of the district's magnet schools. They asked the court to dissolve the desegregation order and to hold the use of magnet school racial guidelines unconstitutional. The board opposed dissolution, arguing that "the old dual system" had left a "demographic imbalance" that "prevent[ed] dissolution." n after reviewing the present plan, the District Court dissolved the 97 order. t wrote that there was "overwhelming evidence of the oard's good faith compliance the desegregation Decree and its underlying purposes." t added that the Louisville School oard had "treated the ideal of an integrated system as much more than a legal obligationthey consider it a positive, desirable policy and an essential element of any well-rounded public school education." The Court also found that the magnet programs available at the high school in question were "not available at other high schools" in the school district. t consequently held unconstitutional the use of race-based "targets" to govern admission to magnet schools. And it ordered the board not to control access to those scarce programs through the use of racial targets. The Current Lawsuit, to the Present. Subsequent to the District Court's dissolution of the desegregation order the board simply continued to implement its 996 plan as modified to reflect the court's magnet school determination. n the petitioner now before us, Crystal Meredith, brought this lawsuit challenging the plan's unmodified portions, i.e., those portions that dealt ordinary, not magnet, schools. oth the District |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | portions that dealt ordinary, not magnet, schools. oth the District Court and the Court of Appeals for the Sixth Circuit rejected Meredith's challenge and held the unmodified aspects of the plan constitutional. C The histories have set forth describe the extensive and ongoing efforts of two school districts to bring ab greater racial integration of their public schools. n both cases the efforts were in part remedial. Louisville began its integration efforts in earnest when a federal court in 97 entered a school desegregation order. Seattle undertook its integration efforts in response to the filing of a federal lawsuit and as a result of its settlement of a segregation complaint filed the federal OCR. The plans in both Louisville and Seattle grow of these earlier remedial efforts. oth districts faced problems that reflected initial periods of severe racial segregation, followed by such remedial efforts as busing, followed by evidence of resegregation, followed by a need to end busing and encourage the return of, e.g., suburban students through increased student choice. When formulating the plans under review, both districts drew upon their considerable experience earlier plans, having revised their policies periodically in light of that experience. oth districts rethought their methods over time and explored a wide range of other means, including non-race-conscious policies. oth districts also considered elaborate studies and consulted widely in their communities. oth districts sought greater racial integration for educational and democratic, as well as for remedial, reasons. oth sought to achieve these objectives while preserving their commitment to other educational goals, e.g., districtwide commitment to high quality public schools, increased pupil assignment to neighborhood schools, diminished use of busing, greater student choice, reduced risk of white flight, and so forth. Consequently, the present plans expand student choice; they limit the burdens (including busing) that earlier plans had imposed upon students and their families; and they use race-conscious criteria in limited and gradually diminishing ways. n they use race-conscious criteria only to mark the er bounds of broad population-related ranges. The histories also make clear the futility of looking simply to whether earlier school segregation was de jure or de facto in order to draw firm lines separating the constitutionally permissible from the constitutionally forbidden use of "race-conscious" criteria. JUSTCE THOMAS suggests that it will be easy to identify de jure segregation because "[i]n most cases, there either will or will not have been a state constitutional amendment, state statute, local ordinance, or local administrative policy explicitly requiring separation of the races." Ante, at 6, n. 4 (concurring opinion). ut our precedent has recognized that de jure |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | (concurring opinion). ut our precedent has recognized that de jure discrimination can be present even in the absence of racially explicit laws. See Yick No one here disputes that Louisville's segregation was de jure. ut what ab Seattle's? Was it de facto? De jure? A mixture? Opinions differed. Or is it that a prior federal court had not adjudicated the matter? Does that make a difference? s Seattle free on remand to say that its schools were de jure segregated, just as in 96 a memo for the School oard admitted? The plurality does not seem confident as to the answer. Compare ante, at 2 (opinion of the Court) ("[T]he Seattle public schools have never shown that they were ever segregated by law" ), ante at 29-30 (plurality opinion) (assuming "the Seattle school district was never segregated by law," but seeming to concede that a school district de jure segregation need not be subject to a court order to be allowed to engage in race-based remedial measures). A court finding of de jure segregation cannot be the crucial variable. After all, a number of school districts in the Sh that the Government or private plaintiffs challenged as segregated by law voluntarily desegregated their schools a court orderjust as Seattle did. See, e.g., Coleman, Desegregation of the Public Schools in KentuckyThe Second Year After the Supreme Court's Decision, 2 J. Negro Educ. 24, 26, 2 (96) (40 of Kentucky's 80 school districts began desegregation court orders); ranton, Little Rock Revisited: Desegregation to Resegregation, 2 J. Negro Educ. 20, 2 (983) (similar in Arkansas); ullock & Rodgers, Coercion to Compliance: Shern School Districts and School Desegregation Guidelines, 38 J. Politics 987, 99 (976) (similar in Georgia); See also Letter from Robert F. Kennedy, Attorney General, to John F. Kennedy, President (hereinafter Kennedy Report), available at http://www.gilderlehrman.org/search/collection_pdfs/0/63/ 0/0630.pdf (all nternet materials as visited June 26, 2007, and available in Clerk of Court's case file) (reporting successful efforts by the Government to induce voluntary desegregation). Moreover, Louisville's history makes clear that a community under a court order to desegregate might submit a race-conscious remedial plan before the court dissolved the order, but every intention of following that plan even after dissolution. How could such a plan be lawful the day before dissolution but then become unlawful the very next day? On what legal ground can the majority rest its contrary view? ut see ante, at 2-3, 7, n. 2. Are courts really to treat as merely de facto segregated those school districts that avoided a federal order by voluntarily complying rown's requirements? See This |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | a federal order by voluntarily complying rown's requirements? See This Court has previously done just the opposite, permitting a race-conscious remedy any kind of court decree. See ecause the Constitution emphatically does not forbid the use of race-conscious measures by districts in the Sh that voluntarily desegregated their schools, on what basis does the plurality claim that the law forbids Seattle to do the same? ut see ante, at 29. The histories also indicate the complexity of the tasks and the practical difficulties that local school boards face when they seek to achieve greater racial integration. The boards work in communities where demographic patterns change, where they must meet traditional learning goals, where they must attract and retain effective teachers, where they should (and will) take account of parents' views and maintain their commitment to public school education, where they must adapt to court intervention, where they must encourage voluntary student and parent actionwhere they will find that their own good faith, their knowledge, and their understanding of local circumstances are always necessary but often insufficient to solve the problems at hand. These facts and circumstances help explain why in this context, as to means, the law often leaves legislatures, city councils, school boards, and voters a broad range of choice, thereby giving "different communities" the opportunity to "try different solutions to common problems and gravitate toward those that prove most successful or seem to them best to suit their individual needs." ), cert. denied, With this factual background in mind, turn to the legal question: Does the United States Constitution prohibit these school boards from using race-conscious criteria in the limited ways at issue here? The Legal Standard A longstanding and unbroken line of legal authority tells us that the Equal Protection Clause permits local school boards to use race-conscious criteria to achieve positive race-related goals, even when the Constitution does not compel it. ecause of its importance, shall repeat what this Court said ab the matter in Chief Justice urger, on behalf of a unanimous Court in a case of exceptional importance, wrote: "School authorities are traditionally charged broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is in the broad discretionary powers of school authorities." 402 U.S., at The statement was not a technical holding in the ut the Court set forth |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | a technical holding in the ut the Court set forth in a basic principle of constitutional lawa principle of law that has found "wide acceptance in the legal culture." 30 U.S. 4, ; ; (citing "`wide acceptance in the legal culture'" as "adequate reason not to overrule" prior cases). Thus, in North Carolina d. of this Court, citing restated the point. "[S]chool authorities," the Court said, "have wide discretion in formulating school policy, and as a matter of educational policy school authorities may well conclude that some kind of racial balance in the schools is desirable quite apart from any constitutional requirements." ThenJ-ustice Rehnquist echoed this view in ustop, making clear that he too believed that 's statement reflected settled law: "While have the gravest doubts that [a state supreme court] was required by the United States Constitution to take the [desegregation] action that it has taken in this case, have very little doubt that it was permitted by that Constitution to take such action." (Emphasis in original.) These statements nowhere suggest that this freedom is limited to school districts where court-ordered desegregation measures are also in effect. ndeed, in a case decided the same day as a group of parents challenged a race-conscious student assignment plan that the Clarke County School oard had voluntarily adopted as a remedy a court order (though under federal agency pressurepressure Seattle also encountered). The plan required that each elementary school in the district maintain 20% to 40% enrollment of African-American students, corresponding to the racial composition of the district. See 226 Ga. 6, 6-9, This Court upheld the plan, see 402 U. S., rejecting the parents' argument that "a person may not be included or excluded solely because he is a Negro or because he is white." rief for Respondents in O. T. No. 0, p. 2. Federal authorities had claimedas the NAACP and the OCR did in Seattlethat Clarke County schools were segregated in law, not just in fact. The plurality's claim that Seattle was "never segregated by law" is simply not accurate. Compare ante, at 29, The plurality could validly claim that no court ever found that Seattle schools were segregated in law. ut that is also true of the Clarke County schools in Unless we believe that the Constitution enforces one legal standard for the Sh and another for the North, this Court should grant Seattle the permission it granted Clarke County, Georgia. See 402 U. S., This Court has also held that school districts may be required by federal statute to undertake race-conscious desegregation efforts even when there is |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | statute to undertake race-conscious desegregation efforts even when there is no likelihood that de jure segregation can be shown. n oard of of City School Dist. of New the Court concluded that a federal statute required school districts receiving certain federal funds to remedy faculty segregation, even though in this Court's view the racial disparities in the affected schools were purely de facto and would not have been actionable under the Equal Protection Clause. Not even the dissenters thought the race-conscious remedial program posed a constitutional problem. See See also, e.g., 8 U.S. 27, ("[S]tate courts of California continue to have an obligation under state law to order segregated school districts to use voluntary desegregation techniques, whether or not there has been a finding of intentional segregation. [S]chool districts themselves retain a state-law obligation to take reasonably feasible steps to desegregate, and they remain free to adopt reassignment and busing plans to effectuate desegregation" ); School Comm. of (dismissing for want of a federal question a challenge to a voluntary statewide integration plan using express racial criteria). Lower state and federal courts had considered the matter settled and uncontroversial even before this Court decided ndeed, in the llinois Supreme Court rejected an equal protection challenge to a raceconscious state law seeking to undo de facto segregation: "To support [their] claim, the defendants heavily rely on three Federal cases, each of which held, no State law being involved, that a local school board does not have an affirmative constitutional duty to act to alleviate racial imbalance in the schools that it did not cause. However, the question as to whether the constitution requires a local school board, or a State, to act to undo de facto school segregation is simply not here concerned. The issue here is whether the constitution permits, rather than prohibits, voluntary State action aimed toward reducing and eventually eliminating de facto school segregation. "State laws or administrative policies, directed toward the reduction and eventual elimination of de facto segregation of children in the schools and racial imbalance, have been approved by every high State court which has considered the issue. Similarly, the Federal courts which have considered the issue have recognized that voluntary programs of local school authorities designed to alleviate de facto segregation and racial imbalance in the schools are not constitutionally forbidden." (citing decisions from the high courts of Pennsylvania, Massachusetts, New Jersey, California, New York, and Connecticut, and from the Courts of Appeals for the First, Second, Fourth, and Sixth Circuits). See also, e.g., ; cert. denied, ; Springfield School 348 F.2d 2, ; |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | ; cert. denied, ; Springfield School 348 F.2d 2, ; Pennsylvania Human Relations 4, ; ooker v. oard of of Plainfield, Union Cty., N. J. 70, ; 9 Cal. 2d 876, quote the llinois Supreme Court at length to illustrate the prevailing legal assumption at the time was decided. n this respect, was not a sharp or unexpected departure from prior rulings; it reflected a consensus that had already emerged among state and lower federal courts. f there were doubts before was decided, they did not survive this Court's decision. Numerous state and federal courts explicitly relied upon 's guidance for decades to follow. For instance, a Texas appeals court in rejected a Fourteenth Amendment challenge to a voluntary integration plan by explaining: "[T]he absence of a court order to desegregate does not mean that a school board cannot exceed minimum requirements in order to promote school integration. School authorities are traditionally given broad discretionary powers to formulate and implement educational policy and may properly decide to ensure to their students the value of an integrated school experience." Citizens for etter 9 S.W.2d 30, 323-3 appeal dism'd for want of a substantial federal question, Similarly, in 0 F.2d 6, the Ninth Circuit rejected a federal constitutional challenge to a school district's use of mandatory faculty transfers to ensure that each school's faculty makeup would fall in 0% of the districtwide racial composition. Like the Texas court, the Ninth Circuit relied upon and North Carolina d. of to reject the argument that "a race-conscious plan is permissible only when there has been a judicial finding of de jure segregation." 0 F.2d, at 663-664. See also, e.g., ; State ex rel. Citizens Against Mandatory -29, 492 P.2d 36, 4- overruled on other grounds, 03 Wash. 2d 0, ; School Comm. of 4-9 7 N.E.2d 438, These decisions illustrate well how lower courts understood and followed 's enunciation of the relevant legal principle. Courts are not alone in accepting as constitutionally valid the legal principle that enunciated-i.e., that the government may voluntarily adopt race-conscious measures to improve conditions of race even when it is not under a constitutional obligation to do so. That principle has been accepted by every branch of government and is rooted in the history of the Equal Protection Clause itself. Thus, Congress has enacted numerous race-conscious statutes that illustrate that principle or rely upon its validity. See, e.g., 20 U.S. C. (No Child Left ehind Act); et seq. (authorizing aid to minority institutions). n fact, being exhaustive, have counted federal statutes that use racial classifications. have counted well over |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | federal statutes that use racial classifications. have counted well over 00 state statutes that similarly employ racial classifications. Presidential administrations for the past half-century have used and supported various race-conscious measures. See, e.g., Exec. Order No. 092, (9) ; Exec. Order No. 6, ; Sugrue, reaking Through: The Troubled Origins of Affirmative Action in the Workplace, in Colorlines: Affirmative Action, mmigration, and Civil Rights Options for America 3 (Skretny ed. 200) (describing President Nixon's lobbying for affirmative action plans, e.g., the Philadelphia Plan); White, Affirmative Action's Alamo: Gerald Ford Returns to Fight Once More for Michigan, Time, Aug. 23, 999, p. 48 (reporting on President Ford's support for affirmative action); Schuck, Affirmative Action: Past, Present, and Future, 0 And during the same time, hundreds of local school districts have adopted student assignment plans that use race-conscious criteria. See Welch 83-9. That 's legal statement should find such broad acceptance is not surprising. For is predicated upon a well-established legal view of the Fourteenth Amendment. That view understands the basic objective of those who wrote the Equal Protection Clause as forbidding practices that lead to racial exclusion. The Amendment sought to bring into American society as full members those whom the Nation had previously held in slavery. See Slaughter-House Cases, Wall. 36, ("[N]o one can fail to be impressed the one pervading purpose found in [all the Reconstruction amendments] we mean the freedom of the slave race"); There is reason to believe that those who drafted an Amendment this basic purpose in mind would have understood the legal and practical difference between the use of race-conscious criteria in defiance of that purpose, namely to keep the races apart, and the use of race-conscious criteria to further that purpose, namely to bring the races together. See generally R. Sears, A Utopian Experiment in Kentucky: ntegration and Social Equality at erea, 866-904 (996) (describing federal funding, through the Freedman's ureau, of race-conscious school integration programs). See also R. Fischer, The Segregation Struggle in Louisiana 862-77, p. (describing the use of race-conscious remedies); Harlan, Desegregation in New Orleans Public Schools During Reconstruction, 67 Am. Hist. Rev. 663, 664 (962) (same); W. Vaughn, Schools for All: The lacks and Public Education in the Sh, 86-877, pp. - (same). Although the Constitution almost always forbids the former, it is significantly more lenient in respect to the latter. See 39 U.S. 4, ; Constructors, U.S. 200, 3 Sometimes Members of this Court have disagreed ab the degree of leniency that the Clause affords to programs designed to include. See ; 07 ut can find no case in |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | include. See ; 07 ut can find no case in which this Court has followed JUSTCE THOMAS' "colorblind" approach. And have found no case that otherwise repudiated this constitutional asymmetry between that which seeks to exclude and that which seeks to include members of minority races. What does the plurality say in response? First, it seeks to distinguish and other similar cases on the ground that those cases involved remedial plans in response to judicial findings of de jure segregation. As and Harris show, that is historically untrue. See at 22-. Many school districts in the Sh adopted segregation remedies (to which clearly applies) any such federal order, see See also Kennedy Report. Seattle's circumstances are not meaningfully different from those in, say, where this Court approved race-conscious remedies. Louisville's plan was created and initially adopted when a compulsory district court order was in place. And, in any event, the histories of Seattle and Louisville make clear that this distinctionbetween court-ordered and voluntary desegregationseeks a line that sensibly cannot be drawn. Second, the plurality downplays the importance of and related cases by frequently describing their relevant statements as "dicta." These criticisms, however, miss the main point. did not hide its understanding of the law in a corner of an obscure opinion or in a footnote, unread but by experts. t set forth its view prominently in an important opinion joined by all nine Justices, knowing that it would be read and followed through the Nation. The basic problem the plurality's technical "dicta"-based response lies in its overly theoretical approach to case law, an approach that emphasizes rigid distinctions between holdings and dicta in a way that serves to mask the radical nature of today's decision. Law is not an exercise in mathematical logic. And statements of a legal rule set forth in a judicial opinion do not always divide neatly into "holdings" and "dicta.") The constitutional principle enunciated in reiterated in subsequent cases, and relied upon over many years, provides, and has widely been thought to provide, authoritative legal guidance. And if the plurality now chooses to reject that principle, it cannot adequately justify its retreat simply by affixing the label "dicta" to reasoning which it disagrees. Rather, it must explain to the courts and to the Nation why it would abandon guidance set forth many years before, guidance that countless others have built upon over time, and which the law has continuously embodied. Third, a more important response is the plurality's claim that later casesin Johnson, and supplanted See ante, at -2, 3-32, n. 34-3 ; 39 U.S. ). |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | ante, at -2, 3-32, n. 34-3 ; 39 U.S. ). The plurality says that cases such as and the others have described all "were decided before this Court definitively determined that `all racial classifications must be analyzed by a reviewing court under strict scrutiny.'" Ante, at 3, n. (quoting U. S., ). This Court in added that "such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests." And the Court repeated this same statement in See 39 U.S., at Several of these cases were significantly more restrictive than in respect to the degree of leniency the Fourteenth Amendment grants to programs designed to include people of all races. See, e.g., ut that legal circumstance cannot make a critical difference here for two separate reasons. First, no casenot or any otherhas ever held that the test of "strict scrutiny" means that all racial classificationsno matter whether they seek to include or excludemust in practice be treated the same. The Court did not say in or in Johnson or in that it was overturning or its central constitutional principle. ndeed, in its more recent opinions, the Court recognized that the "fundamental purpose" of strict scrutiny review is to "take relevant differences" between "fundamentally different situations into account." at 2 The Court made clear that "[s]trict scrutiny does not trea[t] dissimilar race-based decisions as though they were equally objectionable." t added that the fact that a law "treats [a person] unequally because of his or her race says nothing ab the ultimate validity of any law." And the Court, using the very phrase that Justice Marshall had used to describe strict scrutiny's application to any exclusionary use of racial criteria, sought to "dispel the notion that strict scrutiny" is as likely to condemn inclusive uses of "race-conscious" criteria as it is to invalidate exclusionary uses. That is, it is not in all circumstances "`strict in theory, but fatal in fact.'" (quoting 448 U. S., at 9 ). The Court in elaborated: "Strict scrutiny is not `strict in theory, but fatal in fact.' Although all governmental uses of race are subject to strict scrutiny, not all are invalidated by it. "Context matters when reviewing race-based governmental action under the Equal Protection Clause. See (admonishing that, `in dealing claims under broad provisions of the Constitution, which derive content by an interpretive process of inclusion and exclusion, it is imperative that generalizations, based on and qualified by the concrete situations that gave rise to them, must not be applied of context in disregard of variant controlling facts'). Not every decision |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | context in disregard of variant controlling facts'). Not every decision influenced by race is equally objectionable, and strict scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the reasons advanced by the governmental decisionmaker for the use of race in that context." 39 U.S., at -327. The Court's holding in demonstrates that the Court meant what it said, for the Court upheld an elite law school's race-conscious admissions program. The upshot is that the cases to which the plurality refers, though all applying strict scrutiny, do not treat exclusive and inclusive uses the same. Rather, they apply the strict scrutiny test in a manner that is "fatal in fact" only to racial classifications that harmfully exclude; they apply the test in a manner that is not fatal in fact to racial classifications that seek to include. The plurality cannot avoid this simple fact. See ante, at 34-36. Today's opinion reveals that the plurality would rewrite this Court's prior jurisprudence, at least in practical application, transforming the "strict scrutiny" test into a rule that is fatal in fact across the board. n doing so, the plurality parts company from this Court's prior cases, and it takes from local government the longstanding legal right to use race-conscious criteria for inclusive purposes in limited ways. Second, as specified, "[c]ontext matters when reviewing race-based governmental action under the Equal Protection Clause." 39 U.S., at 327 ). And contexts differ dramatically one from the other. Governmental use of race-based criteria can arise in the context of, for example, census forms, research expenditures for diseases, assignments of police officers patrolling predominantly minority-race neighborhoods, efforts to desegregate racially segregated schools, policies that favor minorities when distributing goods or services in short supply, actions that create majority-minority electoral districts, peremptory strikes that remove potential jurors on the basis of race, and others. Given the significant differences among these contexts, it would be surprising if the law required an identically strict legal test for evaluating the constitutionality of race-based criteria as to each of them. Here, the context is one in which school districts seek to advance or to maintain racial integration in primary and secondary schools. t is a context, as makes clear, where history has required special administrative remedies. And it is a context in which the school boards' plans simply set race-conscious limits at the er boundaries of a broad range. This context is not a context that involves the use of race to decide who will receive goods or services that are normally distributed on the basis of |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | or services that are normally distributed on the basis of merit and which are in short supply. t is not one in which race-conscious limits stigmatize or exclude; the limits at issue do not pit the races against each other or otherwise significantly exacerbate racial tensions. They do not impose burdens unfairly upon members of one race alone but instead seek benefits for members of all races alike. The context here is one of racial limits that seek, not to keep the races apart, but to bring them together. The importance of these differences is clear once one compares the present circumstances other cases where one or more of these negative features are present. See, e.g., ; Yick ; rown, ; Regents of Univ. of 438 U.S. 26 ; ; ; 09 U.S. 630 ; Constructors, U.S. 200 ; 39 U.S. 4 ; 43 U.S. 499 f one examines the context more specifically, one finds that the districts' plans reflect efforts to overcome a history of segregation, embody the results of broad experience and community consultation, seek to expand student choice while reducing the need for mandatory busing, and use race-conscious criteria in highly limited ways that diminish the use of race compared to preceding integration efforts. Compare 0 F.3d 790, 48 F. 3d, at -29 They do not seek to award a scarce commodity on the basis of merit, for they are not magnet schools; rather, by design and in practice, they offer substantially equivalent academic programs and electives. Although some parents or children prefer some schools over others, school popularity has varied significantly over the years. n for example, Roosevelt was the most popular first choice high school in Seattle; in 200, allard was the most popular; in West Seattle was one of the least popular; by it was one of the more popular. See Research, Evaluation and Assessment, Student nformation Services Office, District Summaries 999-, available at http://www.seattleschools.org/area/siso/disprof//DP0 all.pdf. n a word, the school plans under review do not involve the kind of race-based harm that has led this Court, in other contexts, to find the use of race-conscious criteria unconstitutional. These and related considerations convinced one Ninth Circuit judge in the Seattle case to apply a standard of constitutionality review that is less than "strict," and to conclude that this Court's precedents do not require the contrary. See 6 F.3d 2, ("That a student is denied the school of his choice may be disappointing, but it carries no racial stigma and says nothing at all ab that individual's aptitude or ability"). That judge is not alone. |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | that individual's aptitude or ability"). That judge is not alone. Cf. at ; at 3 ; Carter, When Victims Happen To e lack, 97 Yale L. J. 0, 433-434 (988). The view that a more lenient standard than "strict scrutiny" should apply in the present context would not imply abandonment of judicial efforts carefully to determine the need for race-conscious criteria and the criteria's tailoring in light of the need. And the present context requires a court to examine carefully the race-conscious program at issue. n doing so, a reviewing judge must be fully aware of the potential dangers and pitfalls that JUSTCE THOMAS and JUSTCE KENNEDY mention. See ante, at -2 (THOMAS, J., concurring); ante, at 3, 7 (opinion of KENNEDY, J.). ut unlike the plurality, such a judge would also be aware that a legislature or school administrators, ultimately accountable to the electorate, could nonetheless properly conclude that a racial classification sometimes serves a purpose important enough to overcome the risks they mention, for example, helping to end racial isolation or to achieve a diverse student body in public schools. Cf. ante, at 7-8 (opinion of KENNEDY, J.). Where that is so, the judge would carefully examine the program's details to determine whether the use of race-conscious criteria is proportionate to the important ends it serves. n my view, this contextual approach to scrutiny is altogether fitting. believe that the law requires application here of a standard of review that is not "strict" in the traditional sense of that word, although it does require the careful review have just described. See at ; at 2-9 ; 6 F.3d, at Apparently JUSTCE KENNEDY also agrees that strict scrutiny would not apply in respect to certain "race-conscious" school board policies. See ante, at 9 ("Executive and legislative branches, which for generations now have considered these types of policies and procedures, should be permitted to employ them candor and confidence that a constitutional violation does not occur whenever a decisionmaker considers the impact a given approach might have on students of different races"). Nonetheless, in light of and other precedents, see, e.g., shall adopt the first alternative. shall apply the version of strict scrutiny that those cases embody. shall consequently ask whether the school boards in Seattle and Louisville adopted these plans to serve a "compelling governmental interest" and, if so, whether the plans are "narrowly tailored" to achieve that interest. f the plans survive this strict review, they would survive less exacting review a fortiori. Hence, conclude that the plans before us pass both parts of the strict scrutiny test. |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | before us pass both parts of the strict scrutiny test. Consequently must conclude that the plans here are permitted under the Constitution. Applying the Legal Standard A Compelling nterest The principal interest advanced in these cases to justify the use of race-based criteria goes by various names. Sometimes a court refers to it as an interest in achieving racial "diversity." Other times a court, like the plurality here, refers to it as an interest in racial "balancing." have used more general terms to signify that interest, describing it, for example, as an interest in promoting or preserving greater racial "integration" of public schools. y this term, mean the school districts' interest in eliminating school-by-school racial isolation and increasing the degree to which racial mixture characterizes each of the district's schools and each individual student's public school experience. Regardless of its name, however, the interest at stake possesses three essential elements. First, there is a historical and remedial element: an interest in setting rightthe consequences of prior conditions of segregation. This refers back to a time when public schools were highly segregated, often as a result of legal or administrative policies that facilitated racial segregation in public schools. t is an interest in continuing to combat the remnants of segregation caused in whole or in part by these school-related policies, which have often affected not only schools, but also housing patterns, employment practices, economic conditions, and social attitudes. t is an interest in maintaining hard-won gains. And it has its roots in preventing what gradually may become the de facto resegregation of America's public schools. See Part ; Appendix A, infra. See also ante, at 7 (opinion of KENNEDY, J.) ("This Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children"). Second, there is an educational element: an interest in overcoming the adverse educational effects produced by and associated highly segregated schools. Cf. 39 U. S., at 3 (GNSURG, J., concurring). Studies suggest that children taken from those schools and placed in integrated settings often show positive academic gains. See, e.g., Powell, Living and Learning: Linking Housing and Education, in Pursuit of a Dream Deferred: Linking Housing and Education Policy 3 (J. Powell, G. Kearney, & V. Kay eds. 200) (hereinafter Powell); Hallinan, Diversity Effects on Student Outcomes: Social Science Evidence, 9 Ohio St. L. J. 733, 74-7 (hereinafter Hallinan). Other studies reach different conclusions. See, e.g., D. Armor, Forced Justice See also ante, at -7 (THOMAS, J., concurring). ut the evidence supporting an educational |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | -7 (THOMAS, J., concurring). ut the evidence supporting an educational interest in racially integrated schools is well established and strong enough to permit a democratically elected school board reasonably to determine that this interest is a compelling one. Research suggests, for example, that black children from segregated educational environments significantly increase their achievement levels once they are placed in a more integrated setting. ndeed in Louisville itself the achievement gap between black and white elementary school students grew substantially smaller (by seven percentage points) after the integration plan was implemented in 97. See Powell 3. Conversely, to take another example, evidence from a district in Norfolk, Virginia, shows that resegregated schools led to a decline in the achievement test scores of children of all races. One commentator, reviewing dozens of studies of the educational benefits of desegregated schooling, found that the studies have provided "remarkably consistent" results, showing that: () black students' educational achievement is improved in integrated schools as compared to racially isolated schools, (2) black students' educational achievement is improved in integrated classes, and (3) the earlier that black students are removed from racial isolation, the better their educational comes. See Hallinan 74-7. Multiple studies also indicate that black alumni of integrated schools are more likely to move into occupations traditionally closed to African-Americans, and to earn more money in those fields. See, e.g., Schofield, Review of Research on School Desegregation's mpact on Elementary and Secondary School Students, in Handbook of Research on Multicultural Education 97, 606-607 Cf. W. owen & D. ok, The Shape of the River 8 (hereinafter owen & ok). Third, there is a democratic element: an interest in producing an educational environment that reflects the "pluralistic society" in which our children will live. 402 U. S., at t is an interest in helping our children learn to work and play together children of different racial backgrounds. t is an interest in teaching children to engage in the kind of cooperation among Americans of all races that is necessary to make a land of three hundred million people one Nation. Again, data support this insight. See, e.g., Hallinan 7; Quillian & Campbell, eyond lack and White: The Present and Future of Multiracial Friendship Segregation, 68 Am. Sociological Rev. 40, 4 (hereinafter Quillian & Campbell); Dawkins & raddock, The Continuing Significance of Desegregation: School Racial Composition and African American nclusion in American Society, 63 J. Negro 394, 40-403 (994) (hereinafter Dawkins & raddock); Wells & Crain, Perpetuation Theory and the Long-Term Effects of School Desegregation, 64 Rev. Educational Research 3, 0 (994) (hereinafter Wells & Crain). |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | Rev. Educational Research 3, 0 (994) (hereinafter Wells & Crain). There are again studies that offer contrary conclusions. See, e.g., Schofield, School Desegregation and ntergroup Relations, in 7 Review of Research in Education 36 (G. Grant ed. 99). See also ante, at 22-23 (THOMAS, J., concurring). Again, however, the evidence supporting a democratic interest in racially integrated schools is firmly established and sufficiently strong to permit a school board to determine, as this Court has itself often found, that this interest is compelling. For example, one study documented that "black and white students in desegregated schools are less racially prejudiced than those in segregated schools," and that "interracial contact in desegregated schools leads to an increase in interracial sociability and friendship." Hallinan 7. See also Quillian & Campbell 4. Cf. owen & ok Other studies have found that both black and white students who attend integrated schools are more likely to work in desegregated companies after graduation than students who attended racially isolated schools. Dawkins & raddock 40-403; Wells & Crain 0. Further research has shown that the desegregation of schools can help bring adult communities together by reducing segregated housing. Cities that have implemented successful school desegregation plans have witnessed increased interracial contact and neighborhoods that tend to become less racially segregated. Dawkins & raddock 403. These effects not only reinforce the prior gains of integrated primary and secondary education; they also foresee a time when there is less need to use race-conscious criteria. Moreover, this Court from to has treated these civic effects as an important virtue of racially diverse education. See, e.g., at ; Seattle School Dist. No. 8 U. S., 72-473. n in the context of law school admissions, we found that these types of interests were, constitutionally speaking, "compelling." See 39 U.S., at (recognizing that Michigan Law School's race-conscious admissions policy "promotes cross-racial understanding, helps to break down racial stereotypes, and enables [students] to better understand persons of different races," and pointing that "the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints" (internal quotation marks omitted; alteration in original)). n light of this Court's conclusions in the "compelling" nature of these interests in the context of primary and secondary public education follows here a fortiori. Primary and secondary schools are where the education of this Nation's children begins, where each of us begins to absorb those values we carry us to the end of our days. As Justice Marshall said, "unless our children begin to learn together, there is little hope that |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | children begin to learn together, there is little hope that our people will ever learn to live together." 48 U.S. 7, And it was rown, after all, focusing upon primary and secondary schools, not (90), focusing on law schools, or (90), focusing on graduate schools, that affected so deeply not only Americans but the world. R. Kluger, Simple Justice: The History of and lack America's Struggle for Equality, p. x (97) (arguing that perhaps no other Supreme Court case has "affected more directly the minds, hearts, and daily lives of so many Americans"); Patterson, xxvii (200) (identifying rown as "the most eagerly awaited and dramatic judicial decision of modern times"). See also Parents nvolved V, 6 F. 3d, at 94 ; Strauss, Discriminatory ntent and the Taming of rown, 6 U. Chi. L. Rev. 93, ; rief for United States as Amicus Curiae in rown, ; Dudziak, rown as a Cold War Case, 9 J. Am. Hist. 32 ; A Great Decision, Hindustan Times p. ; USA Takes Positive Step, West African Pilot p. 2 (stating that rown is an acknowledgment that the "United States should set an example for all other nations by taking the lead in removing from its national life all signs and traces of racial intolerance, arrogance or discrimination"). Hence, am not surprised that JUSTCE KENNEDY finds that, "a district may consider it a compelling interest to achieve a diverse student population," including a racially diverse population. Ante, at 7-8. The compelling interest at issue here, then, includes an effort to eradicate the remnants, not of general "societal discrimination," ante, at 23 (plurality opinion), but of primary and secondary school segregation, see at 7, 4; it includes an effort to create school environments that provide better educational opportunities for all children; it includes an effort to help create citizens better prepared to know, to understand, and to work people of all races and backgrounds, thereby furthering the kind of democratic government our Constitution foresees. f an educational interest that combines these three elements is not "compelling," what is? The majority acknowledges that in prior cases this Court has recognized at least two interests as compelling: an interest in "remedying the effects of past intentional discrimination," and an interest in "diversity in higher education." Ante, ut the plurality does not convincingly explain why those interests do not constitute a "compelling interest" here. How do the remedial interests here differ in kind from those at issue in the voluntary desegregation efforts that Attorney General Kennedy many years ago described in his letter to the President? How do the |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | described in his letter to the President? How do the educational and civic interests differ in kind from those that underlie and justify the racial "diversity" that the law school sought in where this Court found a compelling interest? The plurality tries to draw a distinction by reference to the well-established conceptual difference between de jure segregation ("segregation by state action") and de facto segregation ("racial imbalance caused by other factors"). Ante, at ut that distinction concerns what the Constitution requires school boards to do, not what it permits them to do. Compare, e.g., Green, 39 U. S., 37-438 e.g., 48 U. S., at 7 The opinions cited by the plurality to justify its reliance upon the de jure/de facto distinction only address what remedial measures a school district may be constitutionally required to undertake. See, e.g., 03 U.S. 7, 49 (992). As to what is permitted, nothing in our equal protection law suggests that a State may right only those wrongs that it committed. No case of this Court has ever relied upon the de jure/de facto distinction in order to limit what a school district is voluntarily allowed to do. That is what is at issue here. And Crawford, North Carolina d. of Harris, and ustop made one thing clear: significant as the difference between de jure and de facto segregation may be to the question of what a school district must do, that distinction is not germane to the question of what a school district may do. Nor does any precedent indicate, as the plurality suggests respect to Louisville, ante, at 29, that remedial interests vanish the day after a federal court declares that a district is "unitary." Of course, Louisville adopted those portions of the plan at issue here before a court declared Louisville "unitary." Moreover, in Freeman, this Court pointed that in "one sense of the term, vestiges of past segregation by state decree do remain in our society and in our schools. Past wrongs to the black race, wrongs committed by the State and in its name, are a stubborn fact of history. And stubborn facts of history linger and persist." 03 U.S., 9. See also ante, at (opinion of KENNEDY, J.). do not understand why this Court's cases, which rest the significance of a "unitary" finding in part upon the wisdom and desirability of returning schools to local control, should deprive those local officials of legal permission to use means they once found necessary to combat persisting injustices. For his part, JUSTCE THOMAS faults my citation of various studies supporting the view that |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | faults my citation of various studies supporting the view that school districts can find compelling educational and civic interests in integrating their public schools. See ante, at -7, 23 (concurring opinion). He is entitled of course to his own opinion as to which studies he finds convincingalthough it bears mention that even the author of some of JUSTCE THOMAS' preferred studies has found some evidence linking integrated learning environments to increased academic achievement. Cf. ante, at -7 (opinion of THOMAS, J.) ; rief for Armor et al. as Amici Curiae, Rosen, Perhaps Not All Affirmative Action is Created Equal, N. Y. Times, June 2006 (quoting David Armor as commenting "`[w]e did find the [racial] achievement gap changing significantly'" and acknowledging that he "`did find a modest association for math but not reading in terms of racial composition and achievement, but there's a big state variation'" ). f we are to insist upon unanimity in the social science literature before finding a compelling interest, we might never find one. believe only that the Constitution allows democratically elected school boards to make up their own minds as to how best to include people of all races in one America. Narrow Tailoring next ask whether the plans before us are "narrowly tailored" to achieve these "compelling" objectives. shall not accept the school board's assurances on faith, cf. U.S. 900, and shall subject the "tailoring" of their plans to "rigorous judicial review." 39 U. S., at 388 Several factors, taken together, nonetheless lead me to conclude that the boards' use of race-conscious criteria in these plans passes even the strictest "tailoring" test. First, the race-conscious criteria at issue only help set the er bounds of broad ranges. Cf. (expressing concern ab "narrow fluctuation band[s]"). They constitute but one part of plans that depend primarily upon other, nonracial elements. To use race in this way is not to set a forbidden "quota." See at 33 ("Properly understood, a `quota' is a program in which a certain fixed number or proportion of opportunities are `reserved exclusively for certain minority groups'" (quoting 488 U. S., 96)). n fact, the defining feature of both plans is greater emphasis upon student choice. n Seattle, for example, in more than 80% of all cases, that choice alone determines which high schools Seattle's ninth graders will attend. After ninth grade, students can decide voluntarily to transfer to a preferred district high school ( any consideration of race-conscious criteria). Choice, therefore, is the "predominant factor" in these plans. Race is not. See (allowing consideration of race only if it does "not become |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | (allowing consideration of race only if it does "not become a predominant factor"). ndeed, the race-conscious ranges at issue in these cases often have no effect, either because the school is not oversubscribed in the year in question, or because the racial makeup of the school falls in the broad range, or because the student is a transfer applicant or has a sibling at the school. n these respects, the broad ranges are less like a quota and more like the kinds of "useful starting points" that this Court has consistently found permissible, even when they set boundaries upon voluntary transfers, and even when they are based upon a community's general population. See, e.g., North Carolina d. of ; 402 U. S., at -2 Cf. United 39 U.S. 22, (969) (approving a lower court desegregation order that "provided that the [school] board must move toward a goal under which `in each school the ratio of white to Negro faculty members is substantially the same as it is through the system,'" and "immediately" requiring "[t]he ratio of Negro to white teachers" in each school to be equal to "the ratio of Negro to white teachers in the system as a whole"). Second, broad-range limits on voluntary school choice plans are less burdensome, and hence more narrowly tailored, see at 34, than other race-conscious restrictions this Court has previously approved. See, e.g., ; Montgomery Co. d. of at ndeed, the plans before us are more narrowly tailored than the race-conscious admission plans that this Court approved in Here, race becomes a factor only in a fraction of students' non-merit-based assignmentsnot in large numbers of students' merit-based applications. Moreover, the effect of applying race-conscious criteria here affects potentially disadvantaged students less severely, not more severely, than the criteria at issue in Disappointed students are not rejected from a State's flagship graduate program; they simply attend a different one of the district's many public schools, which in aspiration and in fact are substantially equal. Cf. Wygant, 476 U. S., at 3. And, in Seattle, the disadvantaged student loses at most one year at the high school of his choice. One will search in vain for similarly persuasive evidence of narrow tailoring as the school districts have presented here. Third, the manner in which the school boards developed these plans itself reflects "narrow tailoring." Each plan was devised to overcome a history of segregated public schools. Each plan embodies the results of local experience and community consultation. Each plan is the product of a process that has sought to enhance student choice, while diminishing the |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | that has sought to enhance student choice, while diminishing the need for mandatory busing. And each plan's use of race-conscious elements is diminished compared to the use of race in preceding integration plans. The school boards' widespread consultation, their experimentation numerous other plans, indeed, the 40-year history that Part sets forth, make clear that plans that are less explicitly race-based are unlikely to achieve the board's "compelling" objectives. The history of each school system reveals highly segregated schools, followed by remedial plans that involved forced busing, followed by efforts to attract or retain students through the use of plans that abandoned busing and replaced it greater student choice. oth cities once tried to achieve more integrated schools by relying solely upon measures such as redrawn district boundaries, new school building construction, and unrestricted voluntary transfers. n neither city did these prior attempts prove sufficient to achieve the city's integration goals. See Parts A and , at 6-8. Moreover, giving some degree of weight to a local school board's knowledge, expertise, and concerns in these matters is not inconsistent rigorous judicial scrutiny. t simply recognizes that judges are not well suited to act as school administrators. ndeed, in the context of school desegregation, this Court has repeatedly stressed the importance of acknowledging that local school boards better understand their own communities and have a better knowledge of what in practice will best meet the educational needs of their pupils. See 48 U. S., at 74- See also San Antonio ndependent School 4 U.S. 49-0 (973) (extolling local control for "the opportunity it offers for participation in the decisionmaking process that determines how local tax dollars will be spent. Each locality is free to tailor local programs to local needs. Pluralism also affords some opportunity for experimentation, innovation, and a healthy competition for educational excellence"); 04 ("Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. y and large, public education in our Nation is committed to the control of state and local authorities"); 349 U.S. (9) (rown ) ("Full implementation of these constitutional principles may require solution of varied local school problems. School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles"). Experience in Seattle and Louisville is consistent experience elsewhere. n 987, the U. S. Commission on Civil Rights studied 2 large school districts seeking integration. t reported that most districts-92 of them, in factadopted desegregation policies that |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | that most districts-92 of them, in factadopted desegregation policies that combined two or more highly race-conscious strategies, for example, rezoning or pairing. See Welch 83-9. Having looked at dozens of amicus briefs, public reports, news stories, and the records in many of this Court's prior cases, which together span 0 years of desegregation history in school districts across the Nation, have discovered many examples of districts that sought integration through explicitly race-conscious methods, including mandatory busing. Yet, have found no example or model that would permit this Court to say to Seattle and to Louisville: "Here is an instance of a desegregation plan that is likely to achieve your objectives and also makes less use of race-conscious criteria than your plans." And, if the plurality cannot suggest such a modeland it cannotthen it seeks to impose a "narrow tailoring" requirement that in practice would never be met. ndeed, if there is no such plan, or if such plans are purely imagined, it is understandable why, as the plurality notes, ante, Seattle school officials concentrated on diminishing the racial component of their districts' plan, but did not pursue eliminating that element entirely. For the plurality now to insist as it does, ante, -, that these school districts ought to have said so officially is either to ask for the superfluous (if they need only make explicit what is implicit) or to demand the impossible (if they must somehow provide more proof that there is no hypothetical other plan that could work as well as theirs). am not aware of any case in which this Court has read the "narrow tailoring" test to impose such a requirement. Cf. People Who Care v. Rockford d. of School Dist. No. 20, 9 F.2d 33, 338 (CA7 992) ("Would it be necessary to adjudicate the obvious before adopting (or permitting the parties to agree on) a remedy ?"). The plurality also points to the school districts' use of numerical goals based upon the racial breakdown of the general school population, and it faults the districts for failing to prove that no other set of numbers will work. See ante, at 8-20. The plurality refers to no case in support of its demand. Nor is it likely to find such a After all, this Court has in many cases explicitly permitted districts to use target ratios based upon the district's underlying population. See, e.g., 402 U. S., at -2; North Carolina d. of 402 U. S., 6; Montgomery County d. of 39 U. S., at The reason is obvious: n Seattle, where the overall student population |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | reason is obvious: n Seattle, where the overall student population is 4% white, permitting 8% white enrollment at a single school would make it much more likely that other schools would have very few white students, whereas in Jefferson County, a 60% white enrollment, one school 8% white students would be less likely to skew enrollments elsewhere. Moreover, there is research-based evidence supporting, for example, that a ratio no greater than 0% minority which is Louisville's starting point, and as close as feasible to Seattle's starting pointis helpful in limiting the risk of "white flight." See Orfield, Metropolitan School Desegregation: mpacts on Metropolitan Society, in Pursuit of a Dream Deferred: Linking Housing and Education Policy 2, 2. Federal law also assumes that a similar target percentage will help avoid detrimental "minority group isolation." See No Child Left ehind Act of 200, Title V, Part C, Stat. 806, 20 U.S. C. §723 et seq. ( ed., Supp. V); 34 CFR §§0.2, 0.4 (2006) (implementing regulations). What other numbers are the boards to use as a "starting point"? Are they to spend days, weeks, or months seeking independently to validate the use of ratios that this Court has repeatedly authorized in prior cases? Are they to draw numbers of thin air? These districts have followed this Court's holdings and advice in "tailoring" their plans. That, too, strongly supports the lawfulness of their methods. Nor could the school districts have accomplished their desired aims (e.g., avoiding forced busing, countering white flight, maintaining racial diversity) by other means. Nothing in the extensive history of desegregation efforts over the past 0 years gives the districts, or this Court, any reason to believe that another method is possible to accomplish these goals. Nevertheless, JUSTCE KENNEDY suggests that school boards: "may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing attendance zones general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race." Ante, at 8. ut, as to "strategic site selection," Seattle has built one new high school in the last 44 years (and that specialized school serves only 300 students). n fact, six of the Seattle high schools involved in this case were built by the 's; the other four were open by the early 960's. See generally N. Thompson & C. Marr, uilding for Learning: Seattle Public Schools Histories, 862- As to "drawing" neighborhood "attendance zones" on a racial basis, Louisville tried |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | "drawing" neighborhood "attendance zones" on a racial basis, Louisville tried it, and it worked only when forced busing was also part of the See at 2-4. As to "allocating resources for special programs," Seattle and Louisville have both experimented this; indeed, these programs are often referred to as "magnet schools," but the limited desegregation effect of these efforts extends at most to those few schools to which additional resources are granted. n addition, there is no evidence from the experience of these school districts that it will make any meaningful impact. See rief for Respondents in No. 0-908, p. As to "recruiting faculty" on the basis of race, both cities have tried, but only as one part of a broader program. As to "tracking enrollments, performance and other statistics by race," tracking reveals the problem; it does not cure it. JUSTCE KENNEDY sets forth two additional concerns related to "narrow tailoring." n respect to Louisville, he says first that officials stated () that kindergarten assignments are not subject to the race-conscious guidelines, and (2) that the child at issue here was denied permission to attend the kindergarten he wanted because of those guidelines. oth, he explains, cannot be true. He adds that this confusion illustrates that Louisville's assignment plan (or its explanation of it to this Court) is insufficiently precise in respect to "who makes the decisions," "over-sight," "the precise circumstances in which an assignment decision" will be made; and "which of two similarly situated children will be subjected to a given race-based decision." Ante, The record suggests, however, that the child in question was not assigned to the school he preferred because he missed the kindergarten application deadline. See App. in 0-9, p. 20. After he had enrolled and after the academic year had begun, he then applied to transfer to his preferred school after the kindergarten assignment dead-line had passed, possibly causing school officials to treat his late request as an application to transfer to the first grade, in respect to which the guidelines apply. am not certain just how the remainder of JUSTCE KENNEDY's concerns affect the lawfulness of the Louisville program, for they seem to be failures of explanation, not of administration. ut Louisville should be able to answer the relevant questions on remand. JUSTCE KENNEDY's second concern is directly related to the merits of Seattle's plan: Why does Seattle's plan group Asian-Americans, Hispanic-Americans, Native-Americans, and African-Americans together, treating all as similar minorities? Ante, at 6-7. The majority suggests that Seattle's classification system could permit a school to be labeled "diverse" a 0% Asian-American and 0% |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | school to be labeled "diverse" a 0% Asian-American and 0% white student body, and no African-American students, Hispanic students, or students of other ethnicity. Ante, at 6; ante, at - (opinion of the Court). The 0/0 hypothetical has no support in the record here; it is conjured from the imagination. n fact, Seattle apparently began to treat these different minority groups alike in response to the federal Emergency School Aid Act's requirement that it do so. Siqueland -7. See also Hanawalt 3; Pub. L. 9-, Tit. V (prescribing percentage enrollment requirements for "minority" students); Siqueland (discussing HEW definition of "minority"). Moreover, maintaining this federally mandated system of classification makes sense insofar as Seattle's experience indicates that the relevant circumstances in respect to each of these different minority groups are roughly similar, e.g., in terms of residential patterns, and call for roughly similar responses. This is confirmed by the fact that Seattle has been able to achieve a desirable degree of diversity the greater emphasis on race that drawing fine lines among minority groups would require. Does the plurality's view of the Equal Protection Clause mean that courts must give no weight to such a board determination? Does it insist upon especially strong evidence supporting inclusion of multiple minority groups in an otherwise lawful government minority-ssistance program? f so, its interpretation threatens to produce divisiveness among minority groups that is incompatible the basic objectives of the Fourteenth Amendment. Regardless, the plurality cannot object that the constitutional defect is the individualized use of race and simultaneously object that not enough account of individuals' race has been taken. Finally, recognize that the Court seeks to distinguish from these cases by claiming that arose in "`the context of higher education.'" Ante, at ut that is not a meaningful legal distinction. have explained why do not believe the Constitution could possibly find "compelling" the provision of a racially diverse education for a 23-year-old law student but not for a 3-year-old high school pupil. See 6-48. And have explained how the plans before us are more narrowly tailored than those in See at add that one cannot find a relevant distinction in the fact that these school districts did not examine the merits of applications "individual[ly]." See ante, at 3-. The context here does not involve admission by merit; a child's academic, artistic, and athletic "merits" are not at all relevant to the child's placement. These are not affirmative action plans, and hence "individualized scrutiny" is simply beside the point. The upshot is that these plans' specific features() their limited and historically-diminishing use of race, (2) |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | specific features() their limited and historically-diminishing use of race, (2) their strong reliance upon other non-race-conscious elements, (3) their history and the manner in which the districts developed and modified their approach, (4) the comparison prior plans, and () the lack of reasonably evident alternativestogether show that the districts' plans are "narrowly tailored" to achieve their "compelling" goals. n sum, the districts' race-conscious plans satisfy "strict scrutiny" and are therefore lawful. V Direct Precedent Two additional precedents more directly related to the plans here at issue reinforce my conclusion. The first consists of the District Court determination in the Louisville case when it dissolved its desegregation order that there was "overwhelming evidence of the oard's good faith compliance the desegregation Decree and its underlying purposes," indeed that the oard had "treated the ideal of an integrated system as much more than a legal obligationthey consider it a positive, desirable policy and an essential element of any well-rounded public school education." Hampton 02 F. Supp. 2d, at 370. When the court made this determination in it did so in the context of the Louisville desegregation plan that the board had adopted in 996. That plan, which took effect before 996, is the very plan that in all relevant respects is in effect now and is the subject of the present challenge. No one claims that (the relevant portion of) Louisville's plan was unlawful in 996 when Louisville adopted it. To the contrary, there is every reason to believe that it represented part of an effort to implement the 978 desegregation order. ut if the plan was lawful when it was first adopted and if it was lawful the day before the District Court dissolved its order, how can the plurality now suggest that it became unlawful the following day? s it conceivable that the Constitution, implemented through a court desegregation order, could permit (perhaps require) the district to make use of a race-conscious plan the day before the order was dissolved and then forbid the district to use the identical plan the day after? See The Equal Protection Clause is not incoherent. And federal courts would rightly hesitate to find unitary status if the consequences of the ruling were so dramatically disruptive. Second, Seattle School Dist. No. is directly on point. That case involves the original Seattle Plan, a more heavily race-conscious predecessor of the very plan now before us. n Seattle School Dist. No. this Court struck down a state referendum that effectively barred implementation of Seattle's desegregation plan and "burden[ed] all future attempts to integrate Washington schools in districts |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | "burden[ed] all future attempts to integrate Washington schools in districts through the State." -3, 483. ecause the referendum would have prohibited the adoption of a school-integration plan that involved mandatory busing, and because it would have imposed a special burden on school integration plans (plans that sought to integrate previously segregated schools), the Court found it unconstitutional. 83-487. n reaching this conclusion, the Court did not directly address the constitutional merits of the underlying Seattle ut it explicitly cited 's statement that the Constitution permitted a local district to adopt such a 8 U.S., 72, n. t also cited to Justice Powell's opinion in approving of the limited use of race-conscious criteria in a university-admissions "affirmative action" 8 U.S., 72, n. n addition, the Court stated that "[a]ttending an ethnically diverse school," 73, could help prepare "minority children for citizenship in our pluralistic society," hope-fully "teaching members of the racial majority to live in harmony and mutual respect children of minority heritage." t is difficult to believe that the Court that held unconstitutional a referendum that would have interfered the implementation of this plan thought that the integration plan it sought to preserve was itself an unconstitutional And if Seattle School Dist. No. is premised upon the constitutionality of the original Seattle Plan, it is equally premised upon the constitutionality of the present plan, for the present plan is the Seattle Plan, modified only insofar as it places even less emphasis on race-conscious elements than its predecessors. t is even more difficult to accept the plurality's contrary view, namely that the underlying plan was unconstitutional. f that is so, then all of Seattle's earlier (even more race-conscious) plans must also have been unconstitutional. That necessary implication of the plurality's position strikes the 3th chime of the clock. How could the plurality adopt a constitutional standard that would hold unconstitutional large numbers of race-conscious integration plans adopted by numerous school boards over the past 0 years while remaining true to this Court's desegregation precedent? V Consequences The Founders meant the Constitution as a practical document that would transmit its basic values to future generations through principles that remained workable over time. Hence it is important to consider the potential consequences of the plurality's approach, as measured against the Constitution's objectives. To do so provides further reason to believe that the plurality's approach is legally unsound. For one thing, consider the effect of the plurality's views on the parties before us and on similar school districts through the Nation. Will Louisville and all similar school districts have to return to systems like |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | all similar school districts have to return to systems like Louisville's initial 96 plan, which did not consider race at all? See at 2. That initial 96 plan proved ineffective. Sixteen years into the plan, 4 of 9 middle and high schools remained almost totally white or almost totally black. The districts' past and current plans are not unique. They resemble other plans, promulgated by hundreds of local school boards, which have attempted a variety of desegregation methods that have evolved over time in light of experience. A 987 Civil Rights Commission Study of 2 school districts in the Nation demonstrated the breadth and variety of desegregation plans: "The [study] documents almost 300 desegregation plans that were implemented between 9 and 98. The degree of heterogeneity in these districts is immediately apparent. They are located in every region of the country and range in size from Las Cruces, New Mexico, barely over000 students attending 23 schools in to New York City, more than one million students in 83 schools. The sample includes districts in urban areas of all sizes, suburbs (e.g., Arlington County, Virginia) and rural areas (e.g., Jefferson Parish, Louisiana, and Raleigh County, West Virginia). t contains 34 countywide districts central cities (the Florida districts fit this description, plus Clark County, Nevada and others) and a small number of consolidated districts (New Castle County, Delaware and Jefferson County, Kentucky). "The districts also vary in their racial compositions and levels of segregation. nitial plans were implemented in Mobile, Alabama and Mecklenburg County, North Carolina, and in a number of other shern districts in the face of total racial segregation. At the other extreme, Santa Clara, California had a relatively even racial distribution prior to its desegregation When the plan was designed for Harford County, Maryland, the district was 92 percent white. Compton, California, on the other hand, became over 99 percent black in the 980s, while uffalo, New York had a virtual 0-0 split between white and minority students prior to its 977 "t is not surprising to find a large number of different desegregation strategies in a sample this much variation." Welch 23 (footnotes omitted). A majority of these desegregation techniques explicitly considered a student's race. See at -. Transfer plans, for example, allowed students to shift from a school in which they were in the racial majority to a school in which they would be in a racial minority. Some districts, such as Richmond, California, and uffalo, New York, permitted only "one-way" transfers, in which only black students attending predominantly black schools were permitted to transfer to designated |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | attending predominantly black schools were permitted to transfer to designated receiver schools. at 2. Fifty-three of the 2 studied districts used transfers as a component of their plans. at 83-9. At the state level, States and Puerto Rico have adopted policies that encourage or require local school districts to enact interdistrict or intradistrict open choice plans. Eight of those States condition approval of transfers to another school or district on whether the transfer will produce increased racial integration. Eleven other States require local boards to deny transfers that are not in compliance the local school board's desegregation plans. See Education Commission of the States, Open Enrollment: 0-State Report (2007), online at http://mb2.ecs.org/reports/Report.aspx?id=268. Arkansas, for example, provides by statute that "[n]o student may transfer to a nonresident district where the percentage of enrollment for the student's race exceeds that percentage in the student's resident district." Ark. Code Ann. §6-8-206(f)(), as amended 2007 Ark. Gen. Acts 2 (2007). An Ohio statute provides, in respect to student choice, that each school district must establish "[p]rocedures to ensure that an appropriate racial balance is maintained in the district schools." Ohio Rev. Code Ann. §333.98()(2)(b)(iii) (Lexis Supp. 2006). Ohio adds that a "district may object to the enrollment of a native student in an adjacent or other district in order to maintain an appropriate racial balance." §333.98 (F)()(a). A Connecticut statute states that its student choice program will seek to "preserve racial and ethnic balance." Conn. Gen. Stat. §0-aa(b)(2) (2007). Connecticut law requires each school district to submit racial group population figures to the State oard of Education. §0-226a. Another Connecticut regulation provides that "[a]ny school in which the Proportion for the School falls side of a range from 2 percentage points less to 2 percentage points more than the Comparable Proportion for the School District, shall be determined to be racially imbalanced." Conn. Agencies Regs. §0-226e-3(b) A "racial imbalance" determination requires the district to submit a plan to correct the racial imbalance, which plan may include "mandatory pupil reassignment." §§0-226e-(a) and (c)(4). nterpreting that State's Constitution, the Connecticut Supreme Court has held legally inadequate the reliance by a local school district solely upon some of the techniques JUSTCE KENNEDY today recommends (e.g., reallocating resources, etc.). See 238 Conn. 678 A.2d 267 (996). The State Supreme Court wrote: "Despite the initiatives undertaken by the defendants to alleviate the severe racial and ethnic disparities among school districts, and despite the fact that the defendants did not intend to create or maintain these disparities, the disparities that continue to burden the education of the plaintiffs infringe upon |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | continue to burden the education of the plaintiffs infringe upon their fundamental state constitutional right to a substantially equal educational opportunity." 2, 678 A.2d, at 9. At a minimum, the plurality's views would threaten a surge of race-based litigation. Hundreds of state and federal statutes and regulations use racial classifications for educational or other purposes. See n many such instances, the contentious force of legal challenges to these classifications, meritorious or not, would displace earlier calm. The wide variety of different integration plans that school districts use through the Nation suggests that the problem of racial segregation in schools, including de facto segregation, is difficult to solve. The fact that many such plans have used explicitly racial criteria suggests that such criteria have an important, sometimes necessary, role to play. The fact that the controlling opinion would make a school district's use of such criteria often unlawful (and the plurality's "colorblind" view would make such use always unlawful) suggests that today's opinion will require setting aside the laws of several States and many local communities. As have pointed de facto resegregation is on the rise. See Appendix A, infra. t is reasonable to conclude that such resegregation can create serious educational, social, and civic problems. See at 37-. Given the conditions in which school boards work to set policy, see at 20-2, they may need all of the means presently at their disposal to combat those problems. Yet the plurality would deprive them of at least one tool that some districts now consider vitalthe limited use of broad race-conscious student population ranges. use the words "may need" here deliberately. The plurality, or at least those who follow JUSTCE THOMAS' "`color-blind'" approach, see ante, (THOMAS, J., concurring); 39 U. S., at 33-34 may feel confident that, to end invidious discrimination, one must end all governmental use of race-conscious criteria including those inclusive objectives. See ante, 0-4 (plurality opinion); see also ante, at 26 (THOMAS, J., concurring). y way of contrast, do not claim to know how best to stop harmful discrimination; how best to create a society that includes all Americans; how best to overcome our serious problems of increasing de facto segregation, troubled inner city schooling, and poverty correlated race. ut, as a judge, do know that the Constitution does not authorize judges to dictate solutions to these problems. Rather, the Constitution creates a democratic political system through which the people themselves must together find answers. And it is for them to debate how best to educate the Nation's children and how best to administer America's schools to achieve that |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | and how best to administer America's schools to achieve that aim. The Court should leave them to their work. And it is for them to decide, to quote the plurality's slogan, whether the best "way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Ante, 0-4. See also Parents nvolved V, 6 F. 3d, at 222 (ea, J., dissenting) ("The way to end racial discrimination is to stop discriminating by race"). That is why the Equal Protection Clause laws invidious discrimination, but does not similarly forbid all use of race-conscious criteria. Until today, this Court understood the Constitution as affording the people, acting through their elected representatives, freedom to select the use of "race-conscious" criteria from among their available options. See Constructors, nc., U. S., ("[S]trict scrutiny" in this context is "[not] `strict in theory, but fatal in fact' " (quoting 448 U. S., at 9 )). Today, however, the Court restricts (and some Members would eliminate) that leeway. fear the consequences of doing so for the law, for the schools, for the democratic process, and for America's efforts to create, of its diversity, one Nation. V Conclusions To show that the school assignment plans here meet the requirements of the Constitution, have written at exceptional length. ut that length is necessary. cannot refer to the history of the plans in these cases to justify the use of race-conscious criteria describing that history in full. cannot rely upon 's statement that the use of race-conscious limits is permissible showing, rather than simply asserting, that the statement represents a constitutional principle firmly rooted in federal and state law. Nor can explain my disagreement the Court's holding and the plurality's opinion, offering a detailed account of the arguments they propound and the consequences they risk. Thus, the opinion's reasoning is long. ut its conclusion is short: The plans before us satisfy the requirements of the Equal Protection Clause. And it is the plurality's opinion, not this dissent that "fails to ground the result it would reach in law." Ante, at Four basic considerations have led me to this view. First, the histories of Louisville and Seattle reveal complex circumstances and a long tradition of conscientious efforts by local school boards to resist racial segregation in public schools. Segregation at the time of rown gave way to expansive remedies that included busing, which in turn gave rise to fears of white flight and resegregation. For decades now, these school boards have considered and adopted and revised assignment plans that sought to rely less upon race, |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | revised assignment plans that sought to rely less upon race, to emphasize greater student choice, and to improve the conditions of all schools for all students, no matter the color of their skin, no matter where they happen to reside. The plans under reviewwhich are less burdensome, more egalitarian, and more effective than prior planscontinue in that tradition. And their history reveals school district goals whose remedial, educational, and democratic elements are inextricably intertwined each the others. See Part at 2-2. Second, since this Court's decision in rown, the law has consistently and unequivocally approved of both voluntary and compulsory race-conscious measures to combat segregated schools. The Equal Protection Clause, ratified following the Civil War, has always distinguished in practice between state action that excludes and thereby subordinates racial minorities and state action that seeks to bring together people of all races. From to this Court's decisions have emphasized this distinction, recognizing that the fate of race relations in this country depends upon unity among our children, "for unless our children begin to learn together, there is little hope that our people will ever learn to live together." 48 U. S., at See also C. Sumner, Equality efore the Law: Unconstitutionality of Separate Colored Schools in Massachusetts, in 2 The Works of Charles Sumner 327, 3 (849) ("The law contemplates not only that all be taught, but that all shall be taught together"). See Part -37. Third, the plans before us, subjected to rigorous judicial review, are supported by compelling state interests and are narrowly tailored to accomplish those goals. Just as diversity in higher education was deemed compelling in diversity in public primary and secondary schoolswhere there is even more to gainmust be, a fortiori, a compelling state interest. Even apart from five Members of this Court agree that "avoiding racial isolation" and "achiev[ing] a diverse student population" remain today compelling interests. Ante, at 7-8 (opinion of KENNEDY, J.). These interests combine remedial, educational, and democratic objectives. For the reasons discussed above, however, disagree JUSTCE KENNEDY that Seattle and Louisville have not done enough to demonstrate that their present plans are necessary to continue upon the path set by rown. These plans are more "narrowly tailored" than the race-conscious law school admissions criteria at issue in Hence, their lawfulness follows a fortiori from this Court's prior decisions. See Parts -V, at 37-7. Fourth, the plurality's approach risks serious harm to the law and for the Nation. ts view of the law rests either upon a denial of the distinction between exclusionary and inclusive use of race-conscious criteria in the |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | between exclusionary and inclusive use of race-conscious criteria in the context of the Equal Protection Clause, or upon such a rigid application of its "test" that the distinction loses practical significance. Consequently, the Court's decision today slows down and sets back the work of local school boards to bring ab racially diverse schools. See Part V, at 7-63. ndeed, the consequences of the approach the Court takes today are serious. Yesterday, the plans under review were lawful. Today, they are not. Yesterday, the citizens of this Nation could look for guidance to this Court's unanimous pronouncements concerning desegregation. Today, they cannot. Yesterday, school boards had available to them a full range of means to combat segregated schools. Today, they do not. The Court's decision undermines other basic institutional principles as well. What has happened to stare decisis? The history of the plans before us, their educational importance, their highly limited use of raceall these and moremake clear that the compelling interest here is stronger than in The plans here are more narrowly tailored than the law school admissions program there at issue. Hence, applying 's strict test, their lawfulness follows a fortiori. To hold to the contrary is to transform that test from "strict" to "fatal in fact"the very opposite of what said. And what has happened to ? To ? To Crawford? To Harris? To School Committee of oston? To Seattle School Dist. No. ? After decades of vibrant life, they would all, under the plurality's logic, be written of the law. And what of respect for democratic local decisionmaking by States and school boards? For several decades this Court has rested its public school decisions upon 's basic view that the Constitution grants local school districts a significant degree of leeway where the inclusive use of race-conscious criteria is at issue. Now localities will have to cope the difficult problems they face (including resegregation) deprived of one means they may find necessary. And what of law's concern to diminish and peacefully settle conflict among the Nation's people? nstead of accommodating different good-faith visions of our country and our Constitution, today's holding upsets settled expectations, creates legal uncertainty, and threatens to produce considerable further litigation, aggravating racerelated conflict. And what of the long history and moral vision that the Fourteenth Amendment itself embodies? The plurality cites in support those who argued in rown against segregation, and JUSTCE THOMAS likens the approach that have taken to that of segregation's defenders. See ante, at 39-4 (plurality opinion) (comparing Jim Crow segregation to Seattle and Louisville's integration polices); ante, at -32 (THOMAS, |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | to Seattle and Louisville's integration polices); ante, at -32 (THOMAS, J., concurring). ut segregation policies did not simply tell schoolchildren "where they could and could not go to school based on the color of their skin," ante, 0 (plurality opinion); they perpetuated a caste system rooted in the institutions of slavery and 80 years of legalized subordination. The lesson of history, see ante, at 39 (plurality opinion), is not that efforts to continue racial segregation are constitutionally indistinguishable from efforts to achieve racial integration. ndeed, it is a cruel distortion of history to compare Topeka, Kansas, in the 90's to Louisville and Seattle in the modern dayto equate the plight of Linda rown (who was ordered to attend a Jim Crow school) to the circumstances of Joshua McDonald (whose request to transfer to a school closer to home was initially declined). This is not to deny that there is a cost in applying "a state-mandated racial label." Ante, at 7 (KENNEDY, J., concurring in part and concurring in judgment). ut that cost does not approach, in degree or in kind, the terrible harms of slavery, the resulting caste system, and 80 years of legal racial segregation. * * * Finally, what of the hope and promise of rown? For much of this Nation's history, the races remained divided. t was not long ago that people of different races drank from separate fountains, rode on separate buses, and studied in separate schools. n this Court's finest hour, challenged this history and helped to change it. For rown held a promise. t was a promise embodied in three Amendments designed to make citizens of slaves. t was the promise of true racial equalitynot as a matter of fine words on paper, but as a matter of everyday life in the Nation's cities and schools. t was ab the nature of a democracy that must work for all Americans. t sought one law, one Nation, one people, not simply as a matter of legal principle but in terms of how we actually live. Not everyone welcomed this Court's decision in rown. Three years after that decision was handed down, the Governor of Arkansas ordered state militia to block the doors of a white schoolhouse so that black children could not enter. The President of the United States dispatched the 0st Airborne Division to Little Rock, Arkansas, and federal troops were needed to enforce a desegregation decree. See 38 U.S. (98). Today, almost 0 years later, attitudes toward race in this Nation have changed dramatically. Many parents, white and black alike, want their children |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | dramatically. Many parents, white and black alike, want their children to attend schools children of different races. ndeed, the very school districts that once spurned integration now strive for it. The long history of their efforts reveals the complexities and difficulties they have faced. And in light of those challenges, they have asked us not to take from their hands the instruments they have used to rid their schools of racial segregation, instruments that they believe are needed to overcome the problems of cities divided by race and poverty. The plurality would decline their modest request. The plurality is wrong to do so. The last half-century has witnessed great strides toward racial equality, but we have not yet realized the promise of rown. To invalidate the plans under review is to threaten the promise of rown. The plurality's position, fear, would break that promise. This is a decision that the Court and the Nation will come to regret. must dissent. APPENDXES TO OPNON OF REYER, J. A Resegregation Trends Percentage of lack Students in 90-00 Percent Nonwhite and Majority Nonwhite Public Schools by Region, 90-94 to Fall Enrollment | | 90- | 960-| | | | | | | | | Region | 94 | 9 | | | 976 | 980 | 989 | 999 | | |-----------------------------------------------------------------------------------------| | Percentage in 90-00% Nonwhite Schools | |-----------------------------------------------------------------------------------------| | Northeast | - | 40 |7 |9 |4 | 48.7 | 49.8 | 0.2 |2 | |------------|------|-------|-------|--------|--------|--------|--------|--------|--------| | order | 00 | 9 | 60.2 | 4.7 | | 37.0 | 33.7 | 39.7 | 39.6 | |------------|------|-------|-------|--------|--------|--------|--------|--------|--------| | Sh | 00 | 00 | 77.8 |7 | 22.4 | 23.0 | 26.0 | 3. | 30.9 | |------------|------|-------|-------|--------|--------|--------|--------|--------|--------| | Midwest | 3 | 6 | 8.0 | 7.4 | | 43.6 | 40. |0 |3 | |------------|------|-------|-------|--------|--------|--------|--------|--------|--------| | West | - | 27 | 0.8 |7 | 36.3 | 33.7 | 26.7 | 29.9 | 29. | |------------|------|-------|-------|--------|--------|--------|--------|--------|--------| | U. S. | | | 64.3 | 38.7 | 3.9 | 33.2 | 33.8 | 37.4 | 37.4 | |------------|------|-------|-------|--------|--------|--------|--------|--------|--------| | Percentage in 0-00% Nonwhite Schools | |------------|------|-------|-------|--------|--------|--------|--------|--------|--------| | Northeast | - | 62 | 66.8 | 69.9 | 72. | 79.9 | 7.4 | 77. | 78.3 | |------------|------|-------|-------|--------|--------|--------|--------|--------|--------| | order | 00 | 69 |6 | 67.2 | 60. | 9.2 | 8.0 | 64.8 | 67.0 | |------------|------|-------|-------|--------|--------|--------|--------|--------|--------| | Sh | 00 | 00 | 80.9 |3 | 4.9 | 7. | 9.3 | 67.3 | 69.0 | |------------|------|-------|-------|--------|--------|--------|--------|--------|--------| | Midwest | 78 | 80 | 77.3 | 7.3 |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | | Midwest | 78 | 80 | 77.3 | 7.3 | 70.3 | 69. | 69.4 | 67.9 | 73.3 | |------------|------|-------|-------|--------|--------|--------|--------|--------|--------| | West | - | 69 | 72. | 68. | 67.4 | 66.8 | 67.4 | 76.7 | 7.3 | |------------|------|-------|-------|--------|--------|--------|--------|--------|--------| | U. S. | | | 76.6 | 63.6 | 62.4 | 62.9 | 64.9 | 70. |6 | ||||||||||| Source: C. Clotfelter, After rown: The Rise and Retreat of School Desegregation 6 (Table 2.). Changes in the Percentage of White Students in Schools Attended by the Average lack Student by State, - | | % | % White Students in School | | | White | of Average lack Student Change | | | --------|----------------------------------------------------------------- | | | | | | | - | 980- | 99- | | | | | 980 | 99 | | 980 | 99 | | |||||||||| | Alabama | 60 | 33 | 38 | 3 | 30 | | -3 | - | |----------------|---------|--------|-------|---------|--------|--------|---------|---------| | Arkansas | 70 | 43 | 47 | 44 | 36 | 4 | -3 | -8 | |----------------|---------|--------|-------|---------|--------|--------|---------|---------| | California | 33 | 26 | | 27 | 22 | 2 | - | - | |----------------|---------|--------|-------|---------|--------|--------|---------|---------| | Connecticut | 68 | 44 | 40 | 3 | 32 | -4 | - | -3 | |----------------|---------|--------|-------|---------|--------|--------|---------|---------| | Delaware | 7 | 47 | 69 | 6 | 49 | 22 | -4 | - | |----------------|---------|--------|-------|---------|--------|--------|---------|---------| | Florida | | 43 | | 43 | 34 | 8 | -8 | -9 | |----------------|---------|--------|-------|---------|--------|--------|---------|---------| | Georgia | 2 | 3 | 38 | 3 | 30 | 3 | -3 | - | |----------------|---------|--------|-------|---------|--------|--------|---------|---------| | llinois | 7 | | 9 | 20 | 9 | 4 | | - | |----------------|---------|--------|-------|---------|--------|--------|---------|---------| | ndiana | 82 | 32 | 39 | 47 | 4 | 7 | 8 | -6 | |----------------|---------|--------|-------|---------|--------|--------|---------|---------| | Kansas | 76 | 2 | 9 | 8 | | 7 | - | -7 | |----------------|---------|--------|-------|---------|--------|--------|---------|---------| | Kentucky | 87 | 49 | 74 | | 6 | 2 | -2 | -7 | |----------------|---------|--------|-------|---------|--------|--------|---------|---------| | Louisiana | 48 | 3 | 33 | 32 | 27 | 2 | - | - | |----------------|---------|--------|-------|---------|--------|--------|---------|---------| | Maryland | 0 | 30 | 3 | 29 | 23 | | -6 | -6 | |----------------|---------|--------|-------|---------|--------|--------|---------|---------| | Massachusetts | 7 | 48 | 0 | | 38 | 2 | - | -7 | |----------------|---------|--------|-------|---------|--------|--------|---------|---------| | Michigan | 73 | 22 | 23 | 22 | 22 |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | | 73 | 22 | 23 | 22 | 22 | | - | 0 | |----------------|---------|--------|-------|---------|--------|--------|---------|---------| | Mississippi | 47 | 30 | 29 | 30 | 26 | - | | -4 | |----------------|---------|--------|-------|---------|--------|--------|---------|---------| | Missouri | 78 | 2 | 34 | 40 | 33 | 3 | 6 | -7 | |----------------|---------|--------|-------|---------|--------|--------|---------|---------| | Nebraska | 80 | 33 | 66 | 62 | 49 | 33 | -4 | -3 | |----------------|---------|--------|-------|---------|--------|--------|---------|---------| | New Jersey | 8 | 32 | 26 | 26 | 2 | -6 | 0 | - | |----------------|---------|--------|-------|---------|--------|--------|---------|---------| | New York | 4 | 29 | 23 | 20 | 8 | -6 | -3 | -2 | |----------------|---------|--------|-------|---------|--------|--------|---------|---------| | Nevada | | 6 | 68 | 62 | 38 | 2 | -6 | - | |----------------|---------|--------|-------|---------|--------|--------|---------|---------| | N. Carolina | 8 | 49 | 4 | | 40 | | -3 | - | |----------------|---------|--------|-------|---------|--------|--------|---------|---------| | Ohio | 79 | | 43 | 4 | 32 | | -2 | -9 | |----------------|---------|--------|-------|---------|--------|--------|---------|---------| | Oklahoma | | | 8 | | | | -7 | -9 | |----------------|---------|--------|-------|---------|--------|--------|---------|---------| | Pennsylvania | 76 | | 29 | 3 | 30 | | 2 | - | |----------------|---------|--------|-------|---------|--------|--------|---------|---------| | S. Carolina | 4 | 4 | 43 | | 39 | 2 | - | -3 | |----------------|---------|--------|-------|---------|--------|--------|---------|---------| | Tennessee | 73 | 29 | 38 | 36 | 32 | 9 | -2 | -4 | |----------------|---------|--------|-------|---------|--------|--------|---------|---------| | Texas | 39 | 3 | 3 | 3 | 27 | 4 | 0 | -8 | |----------------|---------|--------|-------|---------|--------|--------|---------|---------| | Virginia | | | 47 | | 4 | | - | - | |----------------|---------|--------|-------|---------|--------|--------|---------|---------| | Wisconsin | 79 | 26 | | 39 | 29 | 9 | -6 | -0 | |||||||||| Source: G. Orfield & C. Lee, Racial Transformation and the Changing Nature of Segregation 8 (Table 8) (Jan. 2006), (Civil Rights Project), online at http://www.civilrightspro ject.harvard.edu/research/deseg/Racial_Transformation.pdf. Percentage of White Students in Schools Attended by the Average lack Student, - Source: Modified from E. Frankenberg, C. Lee, & G. Orfield, A Multiracial Society Segregated Schools: Are We Losing the Dream?, p. 30, fig. online at http://www.civilrightsproject.harvard.edu/research/reseg03/ AreWeLosingtheDream.pdf (Frankenberg, Lee, & Orfield) (using U. S. Dept. of Education and National Center for Education Statistics Common Core data). Percentage of Students in Minority Schools by Race, -200 Source: at fig. 4. Sources for Parts A and Part A: Seattle Section Segregation ¶ C. Schmid & W. McVey, Growth and Distribution of Minority Races in Seattle, Washington, 3, 7-9 (964); F. |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | of Minority Races in Seattle, Washington, 3, 7-9 (964); F. Hanawalt & R. Williams, The History of Desegregation in Seattle Public Schools, 94-98, pp. 7 (98) (herein-after Hanawalt); Taylor, The Civil Rights Movement in the American West: lack Protest in Seattle, 960-, 80 J. Negro Hist. 2-3 ; A. Siqueland, With A Court Order: The Desegregation of Seattle's Schools 0 (98) (hereinafter Siqueland); D. Pieroth, Desegregating the Public Schools, Seattle, Washington, 94-, p. 6 (hereinafter Pieroth). Section 2. Preliminary Challenges, 96 to 969 ¶ Pieroth 32, 4; Hanawalt 4. ¶2 Hanawalt -3. ¶3 at 3, 27. Section 3. The NAACP's First Legal Challenge and Seattle's Response, 969 to 977 ¶ Complaint in Adams v. Forbes ottomly, Civ. No. 6704 (WD Wash., 969), pp. 0-. ¶2 at 0, 4-. ¶3 Planning and Evaluation Dept., Seattle Public Schools, The Plan Adopted by the Seattle School oard to Desegre gate Fifth, Sixth, Seventh, and Eighth Grade Pupils in the Garfield, Lincoln, and Roosevelt High School Districts by September, 9, pp. 6, (on file the University of Washington Library); see generally Siqueland 2-; Hanawalt 8-20. ¶4 Siqueland 7, 2. Section 4. The NAACP's Second Legal Challenge, 977 ¶ Administrative Complaint in Seattle ranch, NAACP v. Seattle School Dist. No. pp. 2-3 (OCR, Apr. 22, 977) (OCR Complaint) (filed Court as Exhibit in Seattle School Dist. No. ); see generally Siqueland 23-. ¶2 Memorandum of Agreement between Seattle School District No. of King Cty., Washington, and the OCR (filed the Court as Exh. A to Kiner Affidavit in Seattle School Dist. No. Section The Seattle Plan: Mandatory using, 978 to 988 ¶ See generally Seattle School Dist. No. ; Seattle Public Schools Desegregation Planning Office, Proposed Alternative Desegregation Plans: Options for Eliminating Racial mbalance by the -80 School Year (Sept. 977) (filed the Court as Exh. to Roe Affidavit in Seattle School Dist. No. Hanawalt 36-38, 40; Siqueland 3, 84, Table 4. ¶2 at -2; Hanawalt ; Seattle School Dist. No. ; Complaint and Motion to Dismiss or Affirm in Seattle School Dist. No. ¶3 Seattle School Dist. No. ; Hanawalt 40. ¶4 See generally Seattle School Dist. No. Section 6. Student Choice, 988 to ¶ L. Kohn, Priority Shift: The Fate of Mandatory using for School Desegregation in Seattle and the Nation 27-30, 32 (Mar. 996). ¶2 Section 7. The Current Plan, 999 to the Present ¶ App. in No. 0-908, p. 84a; rief for Respondents in No. 0-908, pp. -7; 6 F.3d 2, 9-70 (Parents nvolved V). ¶2 App. in No. 0-908, at 39-; Research, Evaluation and Assessment, Student nformation Services Office, Seattle |
Justice Breyer | 2,007 | 2 | second_dissenting | Parents Involved in Community Schools v. Seattle School Dist. No. 1 | https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/ | 39-; Research, Evaluation and Assessment, Student nformation Services Office, Seattle Public Schools Data Profile: DistrictSummary December online at http://www.seattleschools.org/ area/siso/disprof//DP0all.pdf; rief for Respondents in No. 0-908, at 9-0, 47; App. in No. 0-908, at 309a; School oard Report, School Choices and Assignments -2006 School Year online at http://www.seattleschools.org/area/facilties-plan/Choice/00-6AppsChoicesoardAprilfinal.pdf. ¶3 Parents nvolved in Community Schools v. Seattle School Dist., No. 49 Wash. 2d 660, 72 P.3d ; 37 F. Supp. 2d 2 (200); 6 F.3d 2 (Parents nvolved V). Part -: Louisville Section efore the Lawsuit, 94 to ¶ Hampton v. Jefferson Cty., d. of 72 F. Supp. 2d 73, 76, and nn. 2, 4, (Hampton ). Section 2. Court-mposed Guidelines and using, to 99 ¶ Hampton at 77-78, 762; Newburg Area Council, nc. v. oard of of Jefferson Cty., 489 F.2d 92 (CA6 973), vacated and remanded, 48 U.S. 98 reinstated modifications, 0 F.2d 38 ; Judgment and Findings of Fact and Conclusions of Law in Newburg Area Council, nc. v. oard of of Jefferson Cty., Nos. 70 and 729 (WD Ky., July 30, 97) (97 Judgment and Findings). ¶2 and Attachment ¶3 -. ¶4 Memorandum Opinion and Order in Haycraft v. oard of of Jefferson Cty., Nos. 70 and 729, pp. 2, 4, 8 (978 Memo & Order). ¶ Memorandum Opinion and Order, Haycraft v. oard of of Jefferson Cty., Nos. 70 and 729 (WD Ky., Sept. 98), p. 3; Memorandum from Donald W. ngwerson, Superintendent, to the oard of Education, Jefferson Cty. Public School Dist., pp. 3, ( Memorandum); Memorandum from Donald W. ngwerson, Superintendent, to the oard of Education, Jefferson County Public School District, pp. 4- (Dec. 9, 99) (99 Memorandum). Section 3. Student Choice and Project Renaissance, 99 to 996 ¶ 99 Memorandum -4, 7- (Stipulated Exh. 72); rief for Respondents in No. 0-9, P. 2, n. 3. ¶2 99 Memorandum 4-. ¶3 at 4-. ¶4 at -; Memorandum from Stephen W. Daeschner, Superintendent, to the oard of Education, Jefferson Cty. Public School Dist., p. 2 (Aug. 6, 996) (996 Memorandum). Section 4. The Current Plan: Project Renaissance Modified, 996 to ¶ 996 Memorandum -4; rief for Respondents in No. 0-9, at 2, and n. 3. ¶2 996 Memorandum 4-7, and Attachment 2; Hampton ¶3 996 Memorandum -8; Hampton n. 30. ¶4 Hampton v. Jefferson Cty. d. of 02 F. Supp. 2d 38, 39, 363, 370, 377 (Hampton ). ¶ -38. Section The Current Lawsuit, to the Present ¶ F. Supp. 2d 834 ; 4 F.3d 3 ; Memorandum from Stephen W. Daeschner, Superintendent, to the oard of Education, Jefferson Cty. Public School Dist., 3-4 (Apr. |
Justice Douglas | 1,973 | 10 | concurring | Doe v. McMillan | https://www.courtlistener.com/opinion/108802/doe-v-mcmillan/ | I agree with the Court that the issue tendered is justiciable, and that the complaint states a cause of action. Though I join the opinion of the Court, I amplify my own views as they touch on the merits. I Respondents, relying primarily on urge that the report, concededly part and parcel of the legislative process, is immune from the purview of the courts under the Speech or Debate Clause of Art. I, 6, of the Constitution.[1] In Gravel we held that neither Senator Gravel nor his *326 aides could be held accountable or questioned with respect to events occurring at the subcommittee hearing at which the Pentagon Papers were introduced into the public record. The immunity in that case attached to the Senator and his aides, and there is no intimation whatsoever that committee reports are sacrosanct from judicial scrutiny. In fact, the Court disclaimed any need to "address issues that may arise when Congress or either House, as distinguished from a single Member, orders the publication and or public distribution of committee hearings, reports, or other materials."[2] at 626 n. 16. "Legislative immunity does not, of course, bar all judicial review of legislative acts." "The purpose of the protection afforded legislators is not to forestall judicial review of legislative action but to insure that legislators are not distracted from or hindered in the performance of their legislative tasks by being called into court to defend their actions." This has been clear since Mr. Chief Justice Marshall's seminal decision in We always have recognized the "judicial power to determine the validity of legislative actions impinging on individual rights." In the Court's first decision to consider the Speech or Debate Clause, the Court held unconstitutional a resolution of the House ordering the arrest of Kilbourn for refusing to honor a subpoena of a House investigating committee, since the House had no power to punish for contempt. Although the Court barred a claim for false imprisonment against Members of the House, it nevertheless *327 reached the merits of Kilbourn's claim and allowed an action against the House's Sergeant at Arms, who had executed the warrant for Kilbourn's arrest. involved suits for an injunction and for damages against a Senator who headed a subcommittee of the Senate Judiciary Committee and counsel to the subcommittee for wrongful and unlawful seizure of property in violation of the Fourth Amendment. We agreed that the complaint against the Senator must be dismissed because the record "does not contain evidence of his involvement in any activity that could result in liability." As respects counsel to the subcommittee |
Justice Douglas | 1,973 | 10 | concurring | Doe v. McMillan | https://www.courtlistener.com/opinion/108802/doe-v-mcmillan/ | could result in liability." As respects counsel to the subcommittee we held, in reliance on that the immunity granted by the Speech or Debate Clause "is less absolute, although applicable, when applied to officers or employees of a legislative body, rather than to legislators themselves." Accordingly, we remanded the case against counsel to the subcommittee for trial because there was "a sufficient factual dispute" to require a trial. Acts done in violation of the Fourth Amendmentlike assaults with fists or clubs or gunsare outside the protective ambit of the Speech or Debate Clause; certainly violations of the Fourth Amendment are not within the scope of a legitimate legislative purpose. A striking illustration of the same principle was stated in Watkins v. United 188: "The Bill of Rights is applicable to investigations as to all forms of governmental action. Witnesses cannot be compelled to give evidence against themselves. They cannot be subjected to unreasonable search and seizure. Nor can the First Amendment freedoms of speech, press, religion, or political belief and association be abridged." And see Barenblatt v. United (dissenting opinions of Black and BRENNAN, JJ.). A witness subpoenaed to testify before a congressional *328 committee may not be forced to reveal his beliefs. One's conscience and thoughts are matters of privacy as is the whole array of one's beliefs or values. And, as Watkins indicates, a witness refusing to so testify may not be punished for contempt. Violations of the commands of the First Amendment are not within the scope of a legitimate legislative purpose. I cannot agree, then, that the question for us is "whether [public dissemination], simply because authorized by Congress, must always be considered `an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings' with respect to legislative or other matters before the House." A legislator's function in informing the public concerning matters before Congress or concerning the administration of Government is essential to maintaining our representative democracy. Unless we are to put blinders on our Congressmen and isolate them from their constituents, the informing function must be entitled to the same protection of the Speech or Debate Clause as those activities which relate directly and necessarily to the immediate function of legislating. See In my view the question to which we should direct our attention is whether the House Report infringes upon the constitutional rights of petitioners and therefore is subject to scrutiny by the federal courts. II The House authorized its District Committee "to conduct a full and complete investigation and study of (1) the organization, management, |
Justice Douglas | 1,973 | 10 | concurring | Doe v. McMillan | https://www.courtlistener.com/opinion/108802/doe-v-mcmillan/ | and complete investigation and study of (1) the organization, management, operation, and administration of any department or agency of the government of the District of Columbia; (2) the organization, management, operation, and administration of any independent *329 agency or instrumentality of government operating solely in the District of Columbia."[3] It was pursuant to this investigation and study that the report in effect brands certain named students as juvenile delinquents. As stated by Judge Wright in his dissent below: "The material included in the Committee report is not, as the majority contends, merely `somewhat derogatory.' One disciplinary letter, for example, alleges that a specifically named child was `involved in the loss of fifty cents' and `invited a male substitute to have sexual relations with her, gapping her legs open for enticement.' Similar letters accused named children of disrespect, profanity, vandalism, assault and theft. Of the 29 test papers published in the report, 21 bore failing grades. Yet appellants seek only to prohibit use of the children's names without their consent. They do not contest the propriety of the investigation generally, nor do they seek to enjoin the conclusions or text of the report. Indeed, they do not even challenge the right of Congress to examine and summarize the confidential material involved. They wish only to retain their anonymity." 148 U. S. App. D. C. 280, 300, We all should be painfully aware of the potentially devastating effects of congressional accusations. There are great stakes involved when officials condemn individuals by name. The age of technology has produced data banks into which all social security numbers go; and following those numbers go data in designated categories concerning the lives of members of our communities. Arrests go in, though many arrests are unconstitutional. Acts of juvenile delinquency are permanently *330 recorded and they and other alleged misdeeds or indiscretions may be devastating to a person in later years when he has outgrown youthful indiscretions and is trying to launch a professional career or move into a position where steadfastness is required. Congress, in naming the students without justification exceeded the "sphere of legitimate legislative activity." There can be no question that the resolution authorizing the investigation and study expressed a legitimate legislative purpose. Nevertheless, neither the investigatory nor, indeed, the informing function of Congress authorizes any "congressional power to expose for the sake of exposure." Watkins v. United To the contrary, there is simply "no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress." The names of specific students were totally irrelevant to |
Justice Douglas | 1,973 | 10 | concurring | Doe v. McMillan | https://www.courtlistener.com/opinion/108802/doe-v-mcmillan/ | Congress." The names of specific students were totally irrelevant to the purposes of the study. The functions of the Committee would have been served equally well if the students had remained anonymous. It is true, of course, that members of Congress may, even in a case such as this, retain their immunity under the Speech or Debate Clause. But in this case, both the Public Printer and the Superintendent of Documents, official agencies entrusted by Congress with printing responsibilities, are named as defendants. And in the context of this case, such defendants may be held responsible for their actions. See At the very least petitioners are entitled to injunctive relief. The scope of the injunction and against whom it should operate only can be determined upon remand after a full hearing on the facts. We cannot say whether there is a threat of future public distribution or whether *331 it will be feasible for any person subject to the equitable powers of the court to excise the students' names from reports previously distributed. With respect to damages that is, whether respondents, including the members of the District of Columbia Government if a valid claim is stated against them, are protected by the doctrine of official immunity as set forth in the opinion for the CourtI agree that it is a matter for the lower courts in the first instance. MR. CHIEF JUSTICE BURGER, concurring in part and dissenting in part. I cannot accept the proposition that the judiciary has power to carry on a continuing surveillance of what Congress may and may not publish by way of reports on inquiry into subjects plainly within the legislative powers conferred on Congress by the Constitution. The inquiries conducted by Congress here were within its broad legislative authority and the specific powers conferred by Art. I, 8, cl. 17. It seems extraordinary to me that we grant to the staff aides of Members of the Senate and the House an immunity that the Court today denies to a very senior functionary, the Public Printer. Historically and functionally the Public Printer is simply the extended arm of the Congress itself, charged by law with executing congressional commands. Very recently, in United v. Brewster, we explicitly took note of the "conscious choice" made by the authors of the Constitution to give broad privileges and protection to Members of Congress for acts within the scope of their legislative function. As JUSTICES BLACKMUN and REHNQUIST have demonstrated so well, the acts here complained of were not outside the traditional legislative function of Congress. I join fully in |
Justice Douglas | 1,973 | 10 | concurring | Doe v. McMillan | https://www.courtlistener.com/opinion/108802/doe-v-mcmillan/ | the traditional legislative function of Congress. I join fully in the concurring and dissenting opinion of *332 MR. JUSTICE BLACKMUN, post, this page, and that of MR. JUSTICE REHNQUIST, post, p. 338. MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE joins, concurring in part and dissenting in part. I join MR. JUSTICE REHNQUIST'S opinion, post, p. 338, but add some comments of my own. Each step in the legislative report process, from the gathering of information in the course of an officially authorized investigation to and including the official printing and official distribution of that information in the formal report, is legitimate legislative activity and is designed to fulfill a particular objective. More often than not, when a congressional committee prepares a report, it does so not only with the object of advising fellow Members of Congress as to the subject matter, but with the further objects (1) of advising the public of proposed legislative action, (2) of informing the public of the presence of problems and issues, (3) of receiving from the public, in return, constructive comments and suggestions, and (4) of enabling the public to evaluate the performance of their elected representatives in the Congress. The Court has recognized and specifically emphasized the importance, and the significant posture, of the committee report as an integral part of the legislative process when, repeatedly and clearly, it has afforded speech or debate coverage for a Member's writing, signing, or voting in favor of a committee report just as it has for a Member's speaking in formal debate on the floor. ; ;[1] That *333 protection is preserved by the Court in this case, ante, at 311-313, because the Court appreciates that Congress must possess uninhibited internal communication. The Court previously has observed that Congress possesses the power "to inquire into and publicize corruption, maladministration or inefficiency in the agencies of the Government" because the public is "entitled to be informed concerning the workings of its government." Watkins v. United Indeed, as to this kind of activity, Woodrow Wilson long ago observed, "The informing function of Congress should be preferred even to its legislative function."[2] The Speech or Debate Clause is an outgrowth of the English doctrine that the courts should not be utilized as instruments to impede the efficient functioning *334 of Parliament. U. S., at 201-205. Because the "informing function" is an essential attribute of an effective Legislative Branch, I feel the Court's curtailment of that function today violates the historical tradition signified textually by the Speech or Debate Clause and underlying our doctrine of separation of powers. It |
Justice Douglas | 1,973 | 10 | concurring | Doe v. McMillan | https://www.courtlistener.com/opinion/108802/doe-v-mcmillan/ | Clause and underlying our doctrine of separation of powers. It may be that a congressional committee's activities and report are not protected absolutely by the Speech or Debate Clause. One may assume that there must be a legitimate legislative purpose in undertaking the investigation or hearing that culminates in the report. Watkins v. United ; Barenblatt v. United I suggest, however, that the publication and distribution of a report compiled in connection with an officially authorized investigation is as much an "integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation," as is the gathering of information or writing and voting for the publication of the report. In the case before us, there can be no question that the activities of the District of Columbia Committee of the House of Representatives were officially authorized and undertaken for a proper legislative purpose. Plenary jurisdiction over the District of Columbia is specifically vested in Congress by Art. I, 8, of the Constitution.[3] Matters *335 such as the quality of education afforded by the District's schools, and the administrative problems they face, obviously are within the scope of the jurisdiction of the District Committee. In this case, it legitimately undertook its investigation of the administration of the school system.[4] At the conclusion of its investigation the Committee decided, as did the Committee of the Whole House on the State of the Union,[5] that, as a matter of legislative judgment, the report should be printed. It was stated that attachments to one portion thereof were included to "give a realistic view" of a troubled school "and the lack of administrative efforts to rectify the multitudinous problems there."[6] The report was printed and distributed by the Government Printing Office pursuant to 44 U.S. C. 501 and 701.[7] This decision, though reasonable men well may differ as to its wisdom, was a conscious exercise of legislative discretion constitutionally *336 vested in the Legislative Branch and not subject to review by the judiciary. Indeed, as MR. JUSTICE REHNQUIST observes, post, at 339-340, this Court has stated that it is "not consonant with our scheme of government for a court to inquire into the motives of legislators." Although the Court in the present case holds that the gathering of information, the preparation of a report, and the voting on a resolution authorizing the printing of a committee report are protected activities under the Speech or Debate Clause, it renders that protection for Members of Congress and legislative personnel less |
Justice Douglas | 1,973 | 10 | concurring | Doe v. McMillan | https://www.courtlistener.com/opinion/108802/doe-v-mcmillan/ | that protection for Members of Congress and legislative personnel less than meaningful by further holding that the authorized public distribution of a committee document may be enjoined and those responsible for the distribution held liable when the document contains materials "otherwise actionable under local law." Ante, at 317. The Court's holding thus imposes on Congress the onerous burden of justifying, apparently by "substantial evidence," ib the inclusion of allegedly actionable material in committee documents.[8] This, unfortunately, ignores the realities *337 of the "deliberative and communicative processes," by which legislative decisionmaking takes place. Although it is regrettable that a person's reputation may be damaged by the necessities or the mistakes of the legislative process,[9] the very act of determining judicially whether there is "substantial evidence" to justify the inclusion of "actionable" information in a committee report is a censorship that violates the congressional free speech concept embodied in the Speech or Debate Clause[10] and is, as well, the imposition of this Court's judgment in matters textually committed to the discretion of the Legislative Branch by Art. I of the Constitution. I suspect that Mr. Chief Justice Marshall and his concurring Justices would be astonished to learn that the time-honored doctrine of judicial review they enunciated *338 in has been utilized to foster the result reached by the Court today.[11] Stationing the federal judiciary at the doors of the Houses of Congress for the purpose of sanitizing congressional documents in accord with this Court's concept of wise legislative decisionmaking policy appears to me to reveal a lack of confidence in our political processes and in the ability of Congress to police its own members. It is inevitable that occasionally, as perhaps in this case, there will be unwise and even harmful choices made by Congress in fulfilling its legislative responsibility. That, however, is the price we pay for representative government. I am firmly convinced that the abuses we countenance in our system are vastly outweighed by the demonstrated ability of the political process to correct overzealousness on the part of elected representatives. MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, and with whom MR. JUSTICE STEWART joins as to Part I, concurring in part and dissenting in part. I concur in the Court's holding that the respondent Members of Congress and their committee aides and employees are immune under the Speech or Debate Clause for preparation of the Committee report for distribution *339 within the halls of Congress. I dissent from the Court's holding that Members of Congress might be held liable if they were in fact |
Justice Douglas | 1,973 | 10 | concurring | Doe v. McMillan | https://www.courtlistener.com/opinion/108802/doe-v-mcmillan/ | Congress might be held liable if they were in fact responsible for public dissemination of a committee report, and that therefore the Public Printer or the Superintendent of Documents might likewise be liable for such distribution. And quite apart from the immunity which I believe the Speech or Debate Clause confers upon congressionally authorized public distribution of committee reports, I believe that the principle of separation of powers absolutely prohibits any form of injunctive relief in the circumstances here presented. I In we decided that the Speech or Debate Clause of the Constitution did not protect private republication of a committee report, but left open the question of whether publication and public distribution of such reports authorized by Congress would be included within the privilege. at 626 n. 16. While there are intimations in today's opinion that the privilege does not cover such authorized public distribution, the ultimate holding is apparently that the District Court must take evidence and determine for itself whether or not such publication in this case was within the "legitimate legislative needs of Congress," ante, at 324. While there is no reason for a rigid, mechanical application of the Speech or Debate Clause, there would seem to be equally little reason for a completely ad hoc, factual determination in each case of public distribution as to whether that distribution served the "legitimate legislative needs of Congress." A supposed privilege against being held judicially accountable for an act is of virtually no use to the claimant of the privilege if it may only be sustained after elaborate judicial inquiry into the circumstances under which the act was performed. This *340 disposition is particularly anomalous when viewed in light of our earlier views on the scope of the constitutional privilege to the effect that it is "not consonant with our scheme of government for a court to inquire into the motives of legislators." A factual hearing in the District Court could scarcely avoid inquiry into legislative motivation. Previous decisions of this Court have upheld the immunity of Members whenever they are "acting in the sphere of legitimate legislative activity." In we held that this immunity extends to everything "generally done in a session of the House by one of its members in relation to the business before it." This relatively expansive interpretation of the scope of immunity has been consistently reaffirmed. United v. Johnson, ; United v. Brewster, The subject matter of the Committee report here in question was, as the Court notes, concededly within the legislative authority of Congress. Congress has jurisdiction over all matters within the |
Justice Douglas | 1,973 | 10 | concurring | Doe v. McMillan | https://www.courtlistener.com/opinion/108802/doe-v-mcmillan/ | of Congress. Congress has jurisdiction over all matters within the District of Columbia, U. S. Const., Art. I, 8, cl. 17, and the Committee was authorized by the full House to investigate the District's public school system. H. Res. 76, 91st Cong., 1st Sess., 115 Cong. Rec. 2784 And we have held that with respect to the preliminary inquiries, such as the findings here represent, concerning potential legislation, Congress' power "is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution." Barenblatt v. United In and the Court has held that committee reports are absolutely privileged. In *341 neither Kilbourn nor Powell was any distinction intimated between internal and public distribution of the reports. And while the question was reserved in Gravel, a comparison of the factual background surrounding Senator Gravel's reading into the committee record the Pentagon Papers, and the limited publication apparently undertaken here, indicates that the difference in actual effect between the two is indeed minimal The only difference between Senator Gravel's widely publicized reading, in the presence of numerous spectators and journalists, and the public distribution of this report, is that the former was confined within the legislative halls. But it can scarcely be doubted that information produced at a publicly attended committee hearing within the legislative halls may well as a practical matter receive every bit as much public circulation as information contained in a committee report which is itself publicly circulated. To the extent that public participation in a relatively open legislative process is desirable, the Court's holding makes the materials bearing on that process less available than they might be. And the limitation thus judicially imposed is squarely contrary to the expressed intent of Congress. The Committee report was ordered printed by the full House sitting as a Committee of the Whole House on the State of the Union. 116 Cong. Rec. 40311. It was thereafter printed and distributed by the Government Printing Office solely in accordance with statutory provisions. 44 U.S. C. 501, 701. These provisions state specifically that the Public Printer may print only the number of copies designated by the Congress, such number, in the absence of contrary indication, being the "usual number" established by statute as 1,682. These copies may be distributed only "among those entitled to receive them." 701 (a). The distributes are specifically designated in the statute itself. *342 701 (c). Extra copies may be printed only by simple, concurrent, or joint resolution. 703. Thus, every action taken by the Public Printer and the Superintendent of Documents, so far as this record |
Justice Douglas | 1,973 | 10 | concurring | Doe v. McMillan | https://www.courtlistener.com/opinion/108802/doe-v-mcmillan/ | and the Superintendent of Documents, so far as this record indicates, was under the direction of Congress. I agree with the Court that the Public Printer and the Superintendent of Documents have no "official immunity" under the authority of There is no immunity there when officials are simply carrying out the directives of officials in the other branches of Government, rather than performing any discretionary function of their own. But for this very reason, if the body directing the publication or its Members would themselves be immune from publishing and distributing, the Public Printer and the Superintendent should be likewise immune. I do not understand the Court to hold otherwise. Because I would hold the Members immune had they undertaken the public distribution, I would likewise hold the Superintendent and the Public Printer immune for having done so under the authority of the resolution and statute. The Court's contrary conclusion, perhaps influenced by the allegations of serious harm to the petitioners contained in their complaint, unduly restricts the privilege. The sustaining of any claim of privilege invariably forecloses further inquiry into a factual situation which, in the absence of privilege, might well have warranted judicial relief. The reason why the law has nonetheless established categories of privilege has never been better set forth than in the opinion of Judge Learned Hand in : "It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape *343 liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing |
Justice Douglas | 1,973 | 10 | concurring | Doe v. McMillan | https://www.courtlistener.com/opinion/108802/doe-v-mcmillan/ | their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation." II Entirely apart from the immunity conferred by the Speech or Debate Clause on these respondents, I believe that the principle of separation of powers forbids the granting of injunctive relief by the District Court in a case such as this. We have jurisdiction to review the completed acts of the Legislative and Executive Branches. See, e. g., ; *344 Youngstown Sheet & Tube ; But the prospect of the District Court's enjoining a committee of Congress, which, in the legislative scheme of things, is for all practical purposes Congress itself, from undertaking to publicly distribute one of its reports in the manner that Congress has by statute prescribed that it be distributed, is one that I believe would have boggled the minds of the Framers of the Constitution. In an action was brought seeking to enjoin the President from executing a duly enacted statute on the ground that such executive action would be unconstitutional. The Court there expressed the view that I believe should control the availability of the injunctive relief here: "The Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance." In the Court reviewed the arrest and confinement of a private citizen by the Sergeant at Arms of the House of Representatives. In Watkins v. United the Court reviewed the scope of the investigatory powers of Congress when the executive had prosecuted a recalcitrant witness and sought a judicial forum for the purpose of imposing criminal sanctions on him. Neither of these cases comes close to having the mischievous possibilities of censorship being imposed by one branch of the Government upon the other as does this one. In New York Times Co. v. United this Court held that prior restraint comes before it bearing a heavy burden. Whatever may *345 be the difference in the constitutional posture of the two situations, on the issue of injunctive relief, which is nothing if not a |
Justice Rehnquist | 1,987 | 19 | dissenting | School Bd. of Nassau Cty. v. Arline | https://www.courtlistener.com/opinion/111832/school-bd-of-nassau-cty-v-arline/ | In State School and this Court made clear that, where Congress intends to impose a condition on the grant of federal funds, "it must do so unambiguously." This principle applies with full force to 504 of the Rehabilitation Act, which Congress limited in scope to "those who actually `receive' federal financial assistance." United States Department of Yet, the Court today ignores this principle, resting its holding on its own sense of fairness and implied support from the Act. Ante, at 282-286. Such an approach, I believe, is foreclosed not only by but also by our prior decisions interpreting the Rehabilitation Act. Our decision in was premised on the view that federal legislation imposing obligations only on recipients of *290 federal funds is "much in the nature of a contract." 451 U.S., See also Board of Education of Hendrick Hudson Central School As we have stated in the context of the Rehabilitation Act, " `Congress apparently determined it would require grantees to bear the costs of providing employment for the handicapped as a quid pro quo for the receipt of federal ' " United States Department of at quoting Consolidated Rail The legitimacy of this quid pro quo rests on whether recipients of federal funds voluntarily and knowingly accept the terms of the exchange. There can be no knowing acceptance unless Congress speaks "with a clear voice" in identifying the conditions attached to the receipt of 451 U.S., The requirement that Congress unambiguously express conditions imposed on federal moneys is particularly compelling in cases such as this where there exists longstanding state and federal regulation of the subject matter. From as early as 1796, Congress has legislated directly in the area of contagious diseases.[1] Congress has also, however, left significant leeway to the States, which have enacted a myriad of public health statutes designed to protect against the introduction and spread of contagious diseases.[2] When faced *291 with such extensive regulation, this Court has declined to read the Rehabilitation Act expansively. See Bowen v. n Hospital ; Absent an expression of intent to the contrary, "Congress `will not be deemed to have significantly changed the federal-state balance.' " Bowen v. n Hospital quoting United Applying these principles, I conclude that the Rehabilitation Act cannot be read to support the result reached by the Court. The record in this case leaves no doubt that Arline was discharged because of the contagious nature of tuberculosis, and not because of any diminished physical or mental capabilities resulting from her condition.[3] Thus, in the language of 504, the central question here is whether discrimination on |
Justice Rehnquist | 1,987 | 19 | dissenting | School Bd. of Nassau Cty. v. Arline | https://www.courtlistener.com/opinion/111832/school-bd-of-nassau-cty-v-arline/ | of 504, the central question here is whether discrimination on the basis of contagiousness constitutes discrimination "by reason of handicap." Because the language of the Act, regulations, and legislative history are *292 silent on this issue,[4] the principles outlined above compel the conclusion that contagiousness is not a handicap within the meaning of 504. It is therefore clear that the protections of the Act do not extend to individuals such as Arline. In reaching a contrary conclusion, the Court never questions that Arline was discharged because of the threat her condition posed to others. Instead, it posits that the contagious effects of a disease cannot be "meaningfully" distinguished from the disease's effect on a claimant under the Act. Ante, at 282. To support this position, the Court observes that Congress intended to extend the Act's protections to individuals who have a condition that does not impair their mental and physical capabilities, but limits their major life activities because of the adverse reactions of others. This congressional recognition of a handicap resulting from the reactions of others, we are told, reveals that Congress intended the Rehabilitation Act to regulate discrimination on the basis of contagiousness. Ante, at 284. This analysis misses the mark in several respects. To begin with, Congress' recognition that an individual may be handicapped under the Act solely by reason of the reactions of others in no way demonstrates that, for the purposes of interpreting the Act, the reactions of others to the condition cannot be considered separately from the effect of the condition on the claimant. In addition, the Court provides no basis for extending the Act's generalized coverage of individuals suffering discrimination as a result of the reactions of others to coverage of individuals with contagious diseases. Although citing examples of handicapped individuals described in the regulations and legislative history, the Court points to nothing in these materials suggesting that Congress contemplated that a person with a condition posing a threat to the health of others may be considered handicapped under *293 the Act.[5] Even in an ordinary case of statutory construction, such meager proof of congressional intent would not be determinative. The Court's evidence, therefore, could not possibly provide the basis for "knowing acceptance" by such entities as the Nassau County School Board that their receipt of federal funds is conditioned on Rehabilitation Act regulation of public health issues. 451 U. S., In this Court stated that "[a]ny interpretation of 504 must be responsive to two powerful but countervailing considerations the need to give effect to the statutory objectives and the desire to keep |
Justice Thomas | 2,016 | 1 | concurring | Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning | https://www.courtlistener.com/opinion/3203730/merrill-lynch-pierce-fenner-smith-inc-v-manning/ | The Court concludes that respondents’ suit belongs in state court because it does not satisfy the multifactor, atextual standard that we have used to assess whether a suit is one “arising under” federal law, 28 U.S. C. Ante, at 18. I agree that this suit belongs in state court, but I would rest that conclusion on the statute before us, of the Securities Exchange Act of 1934, 15 U.S. C. That statute does not use the phrase “arising under” or provide a sound basis for adopting the arising- under standard. It instead provides federal jurisdiction where a suit is “brought to enforce” Exchange Act re quirements. That language establishes a straightforward test: If a complaint alleges a claim that necessarily depends on a breach of a requirement created by the Act, confers exclusive federal jurisdiction over that suit. Because the complaint here does not allege such claims—and because no other statute confers federal jurisdiction—this suit should return to state court. Ac cordingly, I concur in the judgment. I A Section 27 provides that “[t]he district courts shall 2 MERRILL LYNCH, PIERCE, FENNER & SMITH INC. v. MANNING THOMAS, J., concurring in judgment have exclusive jurisdiction of all suits in equity and actions at law brought to enforce any liability or duty created by this chapter or the rules and regulations there under.” * As the Court explains, under a “natu ral reading,” “confers federal jurisdiction when an action is commenced in order to give effect to an Exchange Act requirement.” Ante, at 6; see also Webster’s New International Dictionary of the English Language 725 (1927) (“enforce” means “give force to” or “give effect to”). And by providing “exclusive jurisdiction” to federal district courts over certain suits, strips state courts of jurisdic tion over such suits. Put differently, under a suit belongs in federal court when the complaint requires a court to enforce an Ex change Act duty or liability. In contrast, a suit belongs in state court when the complaint “assert[s] purely state-law causes of action” that do not require “binding legal deter minations of rights and liabilities under the Exchange Act” or “a judgment on the merits of ” an Exchange Act breach. Elec. Industrial Co. v. Epstein, 516 U.S. 367, 382, 384 (1996). Such a suit is “not ‘brought to enforce’ any rights or obligations under the Act,” and thus does not fall within ’s scope. So does not provide federal jurisdiction over suits brought to en force liabilities or duties under state law or over every case that happens to involve allegations that the Act was violated. |
Justice Thomas | 2,016 | 1 | concurring | Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning | https://www.courtlistener.com/opinion/3203730/merrill-lynch-pierce-fenner-smith-inc-v-manning/ | that happens to involve allegations that the Act was violated. The provision leaves state courts with some authority over suits involving the Act or its regulations. The statutory context bolsters this understanding. That context confirms that Congress reserved some authority to state courts to adjudicate securities-law matters. —————— * As the Court explains, the parties have not pressed us to construe ’s language conferring jurisdiction over “violations” of the Exchange Act, its rules, or its regulations. See ante, at 5, n. 2. Like the Court, I focus on ’s “brought to enforce” language. Cite as: 578 U. S. (2016) 3 THOMAS, J., concurring in judgment Although the Act provides numerous federal “rights and remedies,” it also generally preserves “all other rights and remedies that may exist at law or in equity,” such as claims that could be litigated in state courts of general jurisdiction. 15 U.S. C. That provision shows that “Congress plainly contemplated the possibility of dual litigation in state and federal courts relating to securities transactions.” A natural read ing of ’s text preserves the dual role for federal and state courts that Congress contemplated, and it confirms that mere allegations of Exchange Act breaches do not alone deprive state courts of jurisdiction. A natural reading promotes the uniform interpretation of the federal securities laws that Congress sought to ensure when it gave federal courts “exclusive jurisdiction” over federal securities-law suits. The textual approach fosters uniformity because it leaves to federal courts—which are presumptively more familiar with the intricate federal securities laws—the task of “adjudi cat[ing] Exchange Act claims.” 516 U.S., When state courts decide cases where the com plaint pleads only state-law claims and do not resolve the merits of Exchange Act rights or liabilities, they are not “trespass[ing] upon the exclusive territory of the federal courts.” The statutory text and structure thus support a straightforward test: Section 27 confers federal jurisdic tion over a case if the complaint alleges claims that neces sarily depend on establishing a breach of an Exchange Act requirement. B The Third Circuit was correct to remand this suit to state court. Respondents’ complaint does not seek “to enforce any liability or duty created by” the Exchange Act or its regulations. 4 MERRILL LYNCH, PIERCE, FENNER & SMITH INC. v. MANNING THOMAS, J., concurring in judgment Although respondents’ complaint alleges at different places that petitioners violated the Exchange Act or its regulations, the complaint does not bring claims requiring enforcement of the Exchange Act or its regulations. The complaint instead brings 10 state-law causes of action that seek to enforce duties and |
Justice Thomas | 2,016 | 1 | concurring | Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning | https://www.courtlistener.com/opinion/3203730/merrill-lynch-pierce-fenner-smith-inc-v-manning/ | state-law causes of action that seek to enforce duties and liabilities created by state law. Count 2 alleges that petitioners violated state law by investing money derived from racketeering. See App. to Pet. for Cert. 91a–93a, Amended Complaint ¶¶114–122 ). Counts 3 through 9 allege standard state-law contract and tort claims: unjust enrichment, unlawful interference with economic advantage, tortious interference with contract ual relations, unlawful interference with contractual rela tions, third-party-beneficiary claims, breach of the cove nant of good faith and fair dealing, and negligence. See App. to Pet. for Cert. 93a–101a, Amended Complaint ¶¶123–158. Count 10 pleads a freestanding claim for punitive and exemplary damages. See at 101a, Amended Complaint ¶¶159–161. None of these claims requires a court to “enforce”—to give effect to—a require ment created by the Act, thus, does not confer federal jurisdiction over them. Count 1 presents a closer call, but it too does not trigger federal jurisdiction. That count pleads that petitioners violated a state law that makes it unlawful for a person to participate in a racketeering enterprise. at 82a–90a, Amended Complaint ¶¶88–113 (citing N. J. Stat. Ann. The alleged racketeering includes violating the New Jersey Uniform Securities Law (through fraud, deception, and misappropriation), committing “theft by taking” under state law, and committing “theft by decep tion” under state law. App. to Pet. for Cert. 82a–90a, Amended Complaint ¶¶88–113. Respondents allege that “[t]he SEC has expressly noted that naked short selling involves the omission of a material fact” as part of their Cite as: 578 U. S. (2016) 5 THOMAS, J., concurring in judgment state-law securities fraud allegation. at 85a, Amended Complaint ¶100. Vindicating that claim would not require the enforcement of a federal duty or liability. New Jersey law encompasses fraudulent conduct that does not neces sarily rest on a violation of federal law or regulation. See, e.g., (West 2001) (fraud and deceit include “[a]ny misrepresentation by word, conduct or in any man ner of any material fact, either present or past, and any omission to disclose any such fact”); see App. to Pet. for Cert. 84a–86a (invoking et seq.). So although Count 1 refers to the Securities and Exchange Commis sion’s view about naked short selling, that count does not require respondents to establish a violation of federal securities law to prevail on their fraud claim. Because respondents’ cause of action in Count 1 seeks to enforce duties and liabilities created by state law and does not necessarily depend on the breach of an Exchange Act duty or liability, does not provide federal jurisdiction over that claim. II Although the Court acknowledges |
Justice Thomas | 2,016 | 1 | concurring | Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning | https://www.courtlistener.com/opinion/3203730/merrill-lynch-pierce-fenner-smith-inc-v-manning/ | federal jurisdiction over that claim. II Although the Court acknowledges the “natural reading” of ante, at 6, it holds that adopts the jurisdic tional test that this Court uses to evaluate federal-question jurisdiction under 28 U.S. C. See ante, at 8–10; see also ante, at 10–18. Federal courts have the power to review cases “arising under” federal law, including those in which the complaint brings state-law claims that “necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities.” & Sons Metal Products, The Court wrongly equates the phrase “arising under” in with the phrase “brought to enforce” in and interprets the latter to require that 6 MERRILL LYNCH, PIERCE, FENNER & SMITH INC. v. MANNING THOMAS, J., concurring in judgment a case raising state-law claims “mee[t] the ‘arising under’ standard” for that case to proceed in federal court. Ante, at 8; see ante, at 8–9. None of the Court’s rationales for adopting that rule is persuasive. A The Court first argues that “it is impossible to infer that Congress, in enacting wished to depart from what we now understand as the ‘arising under’ standard” because there was no “well-defined test” to depart from. Ante, at 10. The Court’s case law construing the Court explains, “was for many decades—including when the Exchange Act passed—highly unruly.” (internal quotation marks omitted). But when Congress enacts a statute that uses different language from a prior statute, we normally presume that Congress did so to convey a different meaning. See, e.g., (explaining that “a change in phraseology creates a presumption of a change in intent” and that “Congress would not have used such different language [in two statutes] without thereby intending a change of meaning”). Given what we know about that presumption has force here. Our case law was, as the Court notes, “highly unruly” when the Exchange Act was enacted in 1934. Given the importance of clarity in jurisdictional statutes, see Hertz Corp. v. Friend, it is quite a stretch to infer that Congress wished to embrace such an unpredictable test. That is especially true given that does not use words supporting the convoluted arising-under standard. Sec tion 27 does not ask (for example) whether a federal issue is substantial or whether a ruling on that issue will upset the congressionally approved balance of federal and state power. Indeed, itself does not even use words sup porting the arising-under standard. See ante, at 10 (ac Cite as: 578 U. S. (2016) 7 THOMAS, J., concurring in |
Justice Thomas | 2,016 | 1 | concurring | Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning | https://www.courtlistener.com/opinion/3203730/merrill-lynch-pierce-fenner-smith-inc-v-manning/ | as: 578 U. S. (2016) 7 THOMAS, J., concurring in judgment knowledging that the arising-under standard “does not turn on ’s text”). Rather, the Court has refused to give full effect to ’s “broa[d] phras[ing]” and has instead “continuously construed and limited” that provi sion based on extratextual considerations, such as “his tory,” “the demands of reason and coherence,” and “sound judicial policy.” Faced with a plain and focused text like however, we should not rely on such considerations. And importing factors from our arising-under jurisprudence—such as a substantiality requirement and a federal-state balance requirement— risks narrowing the class of cases that Congress meant to cover with ’s plain For these reasons, it is unwise to read into a decision to adopt the arising-under standard. B The Court next relies on two prior decisions—Pan Amer- ican Petroleum and 516 U.S. 367. See ante, at 10–14. Neither case justifies the Court’s decision to apply the arising-under standard to In Pan the Court held that Delaware state courts had jurisdiction over state-law contract claims that arose from contracts for the sale of natural gas. 366 U.S., –665. The Court reached that decision even though a provision of the Natural Gas Act provided exclusive federal jurisdiction over suits “ ‘brought to enforce any liability or duty created by’ ” that Act. (quoting statute). Pan lends some support to the Court’s view today. It applied the Court’s arising-under prece dents and “explained that [the Natural Gas Act’s] use of the term ‘brought to enforce,’ rather than ‘arising under,’ made no difference to the jurisdictional analysis.” Ante, at 8 MERRILL LYNCH, PIERCE, FENNER & SMITH INC. v. MANNING THOMAS, J., concurring in judgment 11; see Pan ; see also ante, at 10–13. But Pan does not require the Court to engraft the arising-under standard onto Pan did not carefully analyze the Natural Gas Act’s text or assess the contemporary meaning of the central phrase “brought to enforce.” Instead, the Court relied on legislative his tory, reasoning that “authoritative [congressional] Commit tee Reports” implied a limitation on the Natural Gas Act’s jurisdictional 366 U.S., That reasoning does not warrant our respect. That is especially true because Pan ’s holding is consistent with the Natural Gas Act’s “brought to enforce” language. The complaint in that case did not “asser[t]” any “right under the Natural Gas Act” and instead asked the court to adjudicate standard state-law “contract or quasi-contract” claims. The Court’s disposition in Pan rests as comfortably on the statutory text as it does on the arising-under standard. provides even less support for the Court’s holding today. |
Justice Thomas | 2,016 | 1 | concurring | Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning | https://www.courtlistener.com/opinion/3203730/merrill-lynch-pierce-fenner-smith-inc-v-manning/ | standard. provides even less support for the Court’s holding today. In that case the Court held that Delaware courts could issue a judgment approving a settlement releasing securities-law claims even though the settlement released claims that were (by virtue of ) “solely within the jurisdiction of the federal courts.” ; see at 370–372. The Court explained that, “[w]hile prohibits state courts from adjudicating claims arising under the Exchange Act, it does not prohibit state courts from approving the release of Exchange Act claims in the settlement of suits over which they have properly exer cised jurisdiction, i.e., suits arising under state law or under federal law for which there is concurrent jurisdic tion.” Because the complaint in that case “assert[ed] purely state-law causes of action” and the state courts did not issue “a judgment on the merits of the [exclusively federal] claims,” did not deprive state Cite as: 578 U. S. (2016) 9 THOMAS, J., concurring in judgment courts of jurisdiction. The Court relies on because in that case we three times “described” “as conferring exclusive juris diction of suits ‘arising under’ the Exchange Act.” Ante, at 13 (citing 381, 385). But did not decide whether adopts the arising-under standard, so its passing use of the phrase “arising under” cannot bear the weight that the Court now places on it. To be sure, does support the Court’s judgment today: emphasized that state courts could adjudicate a suit involving securities-law issues where the complaint “assert[ed] purely state-law causes of action” and did not require the state courts to issue “binding legal determina tions of rights and liabilities under the Exchange Act” or “a judgment on the merits of ” an Exchange Act breach. 384. But those statements are more consistent with ’s text than they are with the arising-under standard. See at 2–3 (invoking ). C Finally, the Court argues that its interpretation “serves the goals” that our precedents have “consistently under scored in interpreting jurisdictional statutes”—affording proper deference to state courts and promoting admin istrable jurisdictional rules. Ante, at 14; see ante, at 14– 18. But hewing to ’s text serves these goals as well as or better than does adopting the arising-under standard. First, the text-based view preserves state courts’ author ity to adjudicate numerous securities-law claims and provide relief consistent with the Exchange Act’s design. See at 1–3. As explained above, that view places all of respondents’ state-law causes of action in state court. See at 3–5. The text-based view thus “decline[s] to construe [a] federal jurisdictional statut[e] more expan sively than [its] language, most fairly read, requires.” |
Justice Thomas | 2,016 | 1 | concurring | Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning | https://www.courtlistener.com/opinion/3203730/merrill-lynch-pierce-fenner-smith-inc-v-manning/ | more expan sively than [its] language, most fairly read, requires.” Ante, at 14. 10 MERRILL LYNCH, PIERCE, FENNER & SMITH INC. v. MANNING THOMAS, J., concurring in judgment Second, the textual test is also more administrable than the arising-under standard. The arising-under standard “is anything but clear.” (THOMAS, J., concurring). The standard involves numer ous judgments about matters of degree that are not read ily susceptible to bright lines. As noted, to satisfy that standard, a state-law claim must raise a federal issue that is (among other things) “actually disputed,” is “substan tial,” and will not “distur[b]” a congressionally approved federal-state “balance.” at The standard “calls for a ‘common-sense accommodation of judgment to [the] kaleidoscopic situations’ that present a federal issue, in ‘a selective process which picks the sub stantial causes out of the web and lays the other ones aside.’ ” ). The arising- under standard may be many things, but it is not one that consistently “provides ready answers” to hard jurisdic tional questions. Ante, at 17. The text-based view promises better. I would adopt that view and apply it here. * * * For these reasons, I concur in the judgment |
Justice Breyer | 2,012 | 2 | majority | Dorsey v. United States | https://www.courtlistener.com/opinion/802791/dorsey-v-united-states/ | Federal statutes impose mandatory minimum prison sentences upon those convicted of federal drug crimes. These statutes typically base the length of a minimum prison term upon the kind and amount of the drug in- volved. Until 2010, the relevant statute imposed upon an offender who dealt in powder cocaine the same sentence it imposed upon an offender who dealt in one one-hundredth that amount of crack cocaine. It imposed, for example, the same 5-year minimum term upon (1) an offender convicted of possessing with intent to distribute 500 grams of pow- der cocaine as upon (2) an offender convicted of possessing with intent to distribute 5 grams of crack. In 2010, Congress enacted a new statute reducing the crack-to-powder cocaine disparity from 100-to-1 to 18-to-1. Fair Sentencing Act, The new statute took 2 DORSEY v. UNITED STATES Opinion of the Court effect on August 3, 2010. The question here is whether the Act’s more lenient penalty provisions apply to offend- ers who committed a crack cocaine crime before August 3, 2010, but were not sentenced until after August 3. We hold that the new, more lenient mandatory minimum provisions do apply to those pre-Act offenders. I The underlying question before us is one of congres- sional intent as revealed in the Fair Sentencing Act’s lan- guage, structure, and basic objectives. Did Congress intend the Act’s more lenient penalties to apply to pre-Act offenders sentenced after the Act took effect? We recognize that, because of important background principles of interpretation, we must assume that Con- gress did not intend those penalties to apply unless it clearly indicated to the contrary. See infra, at 10–13. But we find that clear indication here. We rest our conclu- sion primarily upon the fact that a contrary determination would seriously undermine basic Federal Sentencing Guidelines objectives such as uniformity and proportional- ity in sentencing. Indeed, seen from that perspective, a contrary determination would (in respect to relevant groups of drug offenders) produce sentences less uniform and more disproportionate than if Congress had not en- acted the Fair Sentencing Act at all. See infra, at 14–18. Because our conclusion rests upon an analysis of the Guidelines-based sentencing system Congress has estab- lished, we describe that system at the outset and include an explanation of how the Guidelines interact with federal statutes setting specific terms of imprisonment. A The Guidelines originate in the Sentencing Reform Act of 1984, That statute created a federal Sentencing Commission instructed to write guidelines that Cite as: 567 U. S. (2012) 3 Opinion of the Court judges would use to determine sentences |
Justice Breyer | 2,012 | 2 | majority | Dorsey v. United States | https://www.courtlistener.com/opinion/802791/dorsey-v-united-states/ | Opinion of the Court judges would use to determine sentences imposed upon offenders convicted of committing federal crimes. 28 U.S. C. 994. Congress thereby sought to increase transparency, uniformity, and proportionality in sentenc- ing. United States Sentencing Commission (USSC or Commission), Guidelines Manual p. 2 (USSG); see 28 U.S. C. 994(f). The Sentencing Reform Act directed the Commission to create in the Guidelines categories of offense behavior (e.g., “ ‘bank robbery/committed with a gun/$2500 taken’ ”) and offender characteristics (e.g., “one prior conviction”). USSG at 1; see 28 U.S. C. A sen- tencing judge determines a Guidelines range by (1) finding the applicable offense level and offender category and then (2) consulting a table that lists proportionate sentenc- ing ranges (e.g., 18 to 24 months of imprisonment) at the intersections of rows (marking offense levels) and columns (marking offender categories). USSG ch. 5, pt. A, Sen- tencing Table, 7B1.4; see also at 11. The Guidelines, after telling the judge how to determine the applicable offense level and offender category, instruct the judge to apply the intersection’s range in an ordinary case, but they leave the judge free to depart from that range in an unusual case. See 18 U.S. C. USSG § at 1–2, 1A1.4(b), at 6–7. This Court has held that the Guidelines are now advisory. United States v. Booker, 543 U.S. 220, 245, 264 ; see The Guidelines determine most drug-crime offense lev- els in a special way. They set a Drug Quantity Table (or Table) that lists amounts of various drugs and associates different amounts with different “Base Offense Levels” (to which a judge may add or subtract levels de- pending upon the “specific” characteristics of the offender’s behavior). See USSG The Table, for example, associates 400 to 499 grams of powder cocaine with a base 4 DORSEY v. UNITED STATES Opinion of the Court offense level of 24, a level that would mean for a first-time offender a prison term of 51 to 63 months. In 1986, Congress enacted a more specific, drug-related sentencing statute, the Anti-Drug Abuse Act (1986 Drug Act), That statute sets mandatory minimum penalties of 5 and 10 years applicable to a drug offender depending primarily upon the kind and amount of drugs involved in the offense. See 21 U.S. C. (A)–(C) (2006 ed. and Supp. IV). The minimum applicable to an offender convicted of possessing with intent to dis- tribute 500 grams or more of powder cocaine is 5 years, and for 5,000 grams or more of powder the minimum is 10 years. (A)(ii), (B)(ii). The 1986 Drug Act, however, treated |
Justice Breyer | 2,012 | 2 | majority | Dorsey v. United States | https://www.courtlistener.com/opinion/802791/dorsey-v-united-states/ | 10 years. (A)(ii), (B)(ii). The 1986 Drug Act, however, treated crack cocaine crimes as far more serious. It applied its 5-year minimum to an offender convicted of possessing with intent to distribute only 5 grams of crack (as compared to 500 grams of powder) and its 10-year minimum to one convicted of possessing with intent to distribute only 50 grams of crack (as compared to 5,000 grams of powder), thus producing a 100-to-1 crack-to- powder ratio. (A)(iii), (B)(iii) (2006 ed.). The 1986 Drug Act, like other federal sentencing stat- utes, interacts with the Guidelines in an important way. Like other sentencing statutes, it trumps the Guidelines. Thus, ordinarily no matter what the Guidelines provide, a judge cannot sentence an offender to a sentence beyond the maximum contained in the federal statute setting the crime of conviction. Similarly, ordinarily no matter what range the Guidelines set a sentencing judge must sentence an offender to at least the minimum prison term set in a statutory mandatory minimum. See 28 U.S. C. (b)(1); USSG Neal v. United States, Not surprisingly, the Sentencing Commission incorpo- rated the 1986 Drug Act’s mandatory minimums into the first version of the Guidelines themselves. Cite as: 567 U. S. (2012) 5 Opinion of the Court 6–97. It did so by setting a base offense level for a first-time drug offender that corresponded to the lowest Guidelines range above the applicable mandatory minimum. USSC, Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice Sys- tem 53–54 ( Report). Thus, the first Guidelines Drug Quantity Table associated 500 grams of powder cocaine with an offense level of 26, which for a first-time offender meant a sentencing range of 63 to 78 months (just above the 5-year minimum), and it associated 5,000 grams of powder cocaine with an offense level of 32, which for a first-time offender meant a sentencing range of 121 to 151 months (just above the 10-year minimum). USSG (Oct. 1987). Further reflecting the 1986 Drug Act’s 100-to-1 crack-to-powder ratio, the Table asso- ciated an offense level of 26 with 5 grams of crack and an offense level of 32 with 50 grams of crack. In addition, the Drug Quantity Table set offense levels for small drug amounts that did not trigger the 1986 Drug Act’s mandatory minimums so that the resulting Guide- lines sentences would remain proportionate to the sen- tences for amounts that did trigger these minimums. Report 54. Thus, the Table associated 400 grams of pow- der cocaine (an amount that fell just below the amount triggering the 1986 Drug Act’s 5-year |
Justice Breyer | 2,012 | 2 | majority | Dorsey v. United States | https://www.courtlistener.com/opinion/802791/dorsey-v-united-states/ | just below the amount triggering the 1986 Drug Act’s 5-year minimum) with an offense level of 24, which for a first-time offender meant a sentencing range of 51 to 63 months (the range just below the 5-year minimum). USSG (Oct. 1987). Follow- ing the 100-to-1 crack-to-powder ratio, the Table associated four grams of crack (an amount that also fell just below the amount triggering the 1986 Drug Act’s 5-year mini- mum) with an offense level of 24. The Commission did this not because it necessarily thought that those levels were most in keeping with past sentencing practice or would independently have reflected a fair set of sentences, but rather because the Commission 6 DORSEY v. UNITED STATES Opinion of the Court believed that doing so was the best way to keep similar drug-trafficking sentences proportional, thereby satisfying the Sentencing Reform Act’s basic “proportionality” objec- tive. See ; USSG ; Report 53–54, 349, and n. 845. For this rea- son, the Commission derived the Drug Quantity Table’s entire set of crack and powder cocaine offense levels by using the 1986 Drug Act’s two (5- and 10-year) minimum amounts as reference points and then extrapolating from those two amounts upward and downward to set propor- tional offense levels for other drug amounts. B During the next two decades, the Commission and others in the law enforcement community strongly criti- cized Congress’ decision to set the crack-to-powder manda- tory minimum ratio at 100-to-1. The Commission issued four separate reports telling Congress that the ratio was too high and unjustified because, for example, research showed the relative harm between crack and powder cocaine less severe than 100-to-1, because sentences em- bodying that ratio could not achieve the Sentencing Re- form Act’s “uniformity” goal of treating like offenders alike, because they could not achieve the “proportionality” goal of treating different offenders (e.g., major drug traf- fickers and low-level dealers) differently, and because the public had come to understand sentences embodying the 100-to-1 ratio as reflecting unjustified race-based differ- ences. 7–98; see, e.g., USSC, Special Report to the Congress: Cocaine and Federal Sen- tencing Policy 197–198 (Feb. 1995) (1995 Report); USSC, Special Report to Congress: Cocaine and Federal Sentenc- ing Policy 8 (Apr. 1997) (1997 Report); USSC, Report to Congress: Cocaine and Federal Sentencing Policy 103 (May 2002) (2002 Report); USSC, Report to Congress: Cocaine and Federal Sentencing Policy 8 (2007 Cite as: 567 U. S. (2012) 7 Opinion of the Court Report). The Commission also asked Congress for new legislation embodying a lower crack-to-powder ratio. 1995 Report 198–200; 1997 Report 9–10; 2002 Report 103– 107; |
Justice Breyer | 2,012 | 2 | majority | Dorsey v. United States | https://www.courtlistener.com/opinion/802791/dorsey-v-united-states/ | 1995 Report 198–200; 1997 Report 9–10; 2002 Report 103– 107; 2007 Report 6–9. And the Commission recommended that the legislation “include” an “emergency amendment” allowing “the Commission to incorporate the statutory changes” in the Guidelines while “minimiz[ing] the lag between any statutory and guideline modifications for cocaine offenders.” In 2010, Congress accepted the Commission’s recom- mendations, see 2002 Report 104; 2007 Report 8–9, and n. 26, and enacted the Fair Sentencing Act into law. The Act increased the drug amounts triggering mandatory minimums for crack trafficking offenses from 5 grams to 28 grams in respect to the 5-year minimum and from 50 grams to 280 grams in respect to the 10-year minimum (while leaving powder at 500 grams and 5,000 grams respectively). The change had the effect of lowering the 100-to-1 crack-to-powder ratio to 18- to-1. (The Act also eliminated the 5-year mandatory minimum for simple possession of crack. 124 Stat. 2372.) Further, the Fair Sentencing Act instructed the Com- mission to “make such conforming amendments to the Federal sentencing guidelines as the Commission deter- mines necessary to achieve consistency with other guide- line provisions and applicable law.” And it directed the Commission to “promulgate the guide- lines, policy statements, or amendments provided for in this Act as soon as practicable, and in any event not later than 90 days” after the new Act took The Fair Sentencing Act took effect on August 3, 2010. The Commission promulgated conforming emergency Guidelines amendments that became effective on Novem- ber 1, 2010. (2010). A permanent version of those Guidelines amendments took effect on 8 DORSEY v. UNITED STATES Opinion of the Court November 1, See 76 C With this background in mind, we turn to the relevant facts of the cases before us. Corey Hill, one of the peti- tioners, unlawfully sold 53 grams of crack in March 2007, before the Fair Sentencing Act became law. App. in No. 11–5721, pp. 6, 83 (hereinafter Hill App.). Under the 1986 Drug Act, an offender who sold 53 grams of crack was subject to a 10-year mandatory minimum. 21 U.S. C. (2006 ed.). Hill was not sentenced, how- ever, until December 2010, after the Fair Sentencing Act became law and after the new Guidelines amendments had become effective. Hill App. 83–94. Under the Fair Sentencing Act, an offender who sold 53 grams of crack was subject to a 5-year, not a 10-year, minimum. (2006 ed., Supp. IV). The sentencing judge stated that, if he thought that the Fair Sentencing Act applied, he would have sentenced Hill to that Act’s 5- year minimum. But he |
Justice Breyer | 2,012 | 2 | majority | Dorsey v. United States | https://www.courtlistener.com/opinion/802791/dorsey-v-united-states/ | sentenced Hill to that Act’s 5- year minimum. But he concluded that the Fair Sentencing Act’s lower minimums apply only to those who committed a drug crime after August 3, 2010—the Act’s effective date. That is to say, he concluded that the new Act’s more lenient sentences did not apply to those who committed a crime before August 3, even if they were sentenced after that date. Hence, the judge sen- tenced Hill to 10 years of imprisonment. The Court of Appeals for the Seventh Circuit affirmed. 417 Fed. Appx. 560 The second petitioner, Edward Dorsey (who had previ- ously been convicted of a drug felony), unlawfully sold 5.5 grams of crack in August 2008, before the Fair Sentencing Act took App. in No. 5683, pp. 9, 48–49, 57–58 (hereinafter Dorsey App.). Under the 1986 Drug Act, an offender such as Dorsey with a prior drug felony who sold 5.5 grams of crack was subject to a 10-year minimum. Cite as: 567 U. S. (2012) 9 Opinion of the Court (2006 ed.). Dorsey was not sentenced, however, until September 2010, after the new Fair Sen- tencing Act took at 84–95. Under the Fair Sentencing Act, such an offender who sold 5.5 grams of crack was not subject to a mandatory minimum at all, for 5.5 grams is less than the 28 grams that triggers the new Act’s mandatory minimum provisions. (2006 ed., Supp. IV). Dorsey asked the judge to apply the Fair Sentencing Act’s more lenient statutory penalties. at 54–55. Moreover, as of Dorsey’s sentencing in September 2010, the unrevised Guidelines (reflecting the 1986 Drug Act’s old minimums) were still in The Commission had not yet finished revising the Guidelines to reflect the new, lower statutory minimums. And the basic sentencing statute, the Sentencing Reform Act, provides that a judge shall apply the Guidelines that “are in effect on the date the defendant is ” 18 U.S. C. The sentencing judge, however, had the legal authority not to apply the Guidelines at all (for they are advisory). But he also knew that he could not ignore a minimum sentence contained in the applicable statute. Dorsey App. 67–68. The judge noted that, even though he was sentenc- ing Dorsey after the effective date of the Fair Sentencing Act, Dorsey had committed the underlying crime prior to that date. –70. And he concluded that the 1986 Drug Act’s old minimums, not the new Fair Sentencing Act, applied in those circumstances. He consequently sentenced Dorsey to the 1986 Drug Act’s 10-year man- datory minimum term. The Court of Appeals for the Seventh Circuit |
Justice Breyer | 2,012 | 2 | majority | Dorsey v. United States | https://www.courtlistener.com/opinion/802791/dorsey-v-united-states/ | minimum term. The Court of Appeals for the Seventh Circuit affirmed, United and denied rehearing en banc, 646 F.3d 429 (per curiam); see also United States v. The Courts of Appeals have come to different conclu- sions as to whether the Fair Sentencing Act’s more lenient 10 DORSEY v. UNITED STATES Opinion of the Court mandatory minimums apply to offenders whose unlawful conduct took place before, but whose sentencing took place after, the date that Act took effect, namely, August 3, 2010. Compare United 42–44 (Act applies), and United States v. Dixon, with 635 F. 3d, at 339–340 (Act does not apply), United States v. 0 and United (per curiam) In light of that disagreement, we granted Hill’s and Dorsey’s petitions for certiorari. Since petitioners and the Government both take the position that the Fair Sentencing Act’s new minimums do apply in these circumstances, we appointed as amicus curiae Miguel Estrada to argue the contrary position. He has ably discharged his responsibilities. II A The timing issue before us is difficult in part because relevant language in different statutes argues in opposite directions. See Appendix A, infra. On the one hand, a federal saving statute, Act of Feb. 25, 1871 (1871 Act), phrased in general terms, provides that a new criminal statute that “repeal[s]” an older criminal statute shall not change the penalties “incurred” under that older statute “unless the repealing Act shall so ex- pressly provide.” 1 U.S. C. Case law makes clear that the word “repeal” applies when a new statute simply diminishes the penalties that the older statute set See ; see also United Case law also makes clear that penalties are “incurred” under the older statute when an offender becomes subject to them, i.e., commits the underlying conduct that makes the offender liable. See United States v. Reisinger, 128 U.S. Cite as: 567 U. S. (2012) 11 Opinion of the Court 398, 401 (1888); Great Northern R. On the other hand, the Sentencing Reform Act says that, regardless of when the offender’s conduct occurs, the applicable Guidelines are the ones “in effect on the date the defendant is ” 18 U.S. C. And the Fair Sentencing Act requires the Commission to change the Guidelines in the wake of the Act’s new minimums, making them consistent with “other guideline provisions and applicable law.” Courts that have held that they must apply the old, higher 1986 Drug Act minimums to all pre-Act offenders, including those sentenced after the Fair Sentencing Act took effect, have emphasized that the 1871 Act requires that result unless the Fair Sentencing Act either |
Justice Breyer | 2,012 | 2 | majority | Dorsey v. United States | https://www.courtlistener.com/opinion/802791/dorsey-v-united-states/ | Act requires that result unless the Fair Sentencing Act either expressly says or at least by fair implication implies the contrary. See –340; 06–908; at 214–; see also at 446–448 (opinion of Easterbrook, J.). Courts that have concluded that the Fair Sentencing Act’s more lenient penalties apply have found in that Act, together with the Sentencing Reform Act and other related circumstances, indicia of a clear congressional intent to apply the new Act’s minimums. See at 42–44; Dixon, at 199–; see also – 457 (Williams, J., dissenting from denial of rehearing en banc); at 461–463 (Posner, J., dissenting from denial of rehearing en banc). We too take the latter view. Six considerations, taken together, convince us that Congress intended the Fair Sentencing Act’s more lenient penalties to apply to those offenders whose crimes preceded August 3, 2010, but who are sentenced after that date. First, the 1871 saving statute permits Congress to apply a new Act’s more lenient penalties to pre-Act offenders without expressly saying so in the new Act. It is true that the 1871 Act uses the words “expressly provide.” 1 12 DORSEY v. UNITED STATES Opinion of the Court U. S. C. But the Court has long recognized that this saving statute creates what is in effect a less demanding interpretive requirement. That is because statutes en- acted by one Congress cannot bind a later Congress, which remains free to repeal the earlier statute, to exempt the current statute from the earlier statute, to modify the earlier statute, or to apply the earlier statute but as modi- fied. See, e.g., ; And Congress remains free to express any such intention either expressly or by implication as it chooses. Thus, the Court has said that the 1871 Act “cannot justify a disregard of the will of Congress as manifested either expressly or by necessary implication in a subse- quent enactment.” Great Northern R. (emphasis added). And in a comparable context the Court has emphasized that the Administrative Procedure Act’s use of the word “expressly” does not require Congress to use any “magical passwords” to exempt a later statute from the provision. 310 (1955). Without requiring an “express” statement, the Court has described the necessary indicia of congressional intent by the terms “necessary implication,” “clear impli- cation,” and “fair implication,” phrases it has used inter- changeably. Great Northern R. 466; (10); Marrero, One Member of the Court has said we should determine whether “the plain import of a later statute directly conflicts with an earlier statute,” and, if so, “the later enactment governs, regardless of its compli- ance with |
Justice Breyer | 2,012 | 2 | majority | Dorsey v. United States | https://www.courtlistener.com/opinion/802791/dorsey-v-united-states/ | “the later enactment governs, regardless of its compli- ance with any earlier-enacted requirement of an express reference or other ‘magical password.’ ” Hence, the Court has treated the 1871 Act as setting an important background principle of interpretation. The Court has also assumed Congress is well aware of the Cite as: 567 U. S. (2012) 13 Opinion of the Court background principle when it enacts new criminal stat- utes. E.g., Great Northern R. ; Hertz, ; cf. And the prin- ciple requires courts, before interpreting a new criminal statute to apply its new penalties to a set of pre-Act of- fenders, to assure themselves that ordinary interpretive considerations point clearly in that direction. Words such as “plain import,” “fair implication,” or the like reflect the need for that assurance. And it is that assurance, which we shall assume is conveyed by the phrases “plain import” or “fair implication,” that we must look for here. Second, the Sentencing Reform Act sets a special and different background principle. That statute says that when “determining the particular sentence to be imposed” in an initial sentencing, the sentencing court “shall con- sider,” among other things, the “sentencing range” estab- lished by the Guidelines that are “in effect on the date the defendant is ” 18 U.S. C. (emphasis added). Although the Constitution’s Ex Post Facto Clause, Art. I, cl. 3, prohibits applying a new Act’s higher penalties to pre-Act conduct, it does not pro- hibit applying lower penalties. See Calder v. Bull, 3 Dall. 386, 390–3 (1798); Collins v. Youngblood, 497 U.S. 37, 41–44 (1990). The Sentencing Commission has conse- quently instructed sentencing judges to “use the Guide- lines Manual in effect on the date that the defendant is sentenced,” regardless of when the defendant committed the offense, unless doing so “would violate the ex post facto clause.” USSG And therefore when the Com- mission adopts new, lower Guidelines amendments, those amendments become effective to offenders who committed an offense prior to the adoption of the new amendments but are sentenced thereafter. Just as we assume Congress was aware of the 1871 Act’s background norm, so we assume that Congress was aware of this different back- ground sentencing principle. 14 DORSEY v. UNITED STATES Opinion of the Court Third, language in the Fair Sentencing Act implies that Congress intended to follow the Sentencing Reform Act background principle here. A section of the Fair Sentenc- ing Act entitled “Emergency Authority for United States Sentencing Commission” requires the Commission to prom- ulgate “as soon as practicable” (and not later than 90 days after August 3, 2010) |
Justice Breyer | 2,012 | 2 | majority | Dorsey v. United States | https://www.courtlistener.com/opinion/802791/dorsey-v-united-states/ | (and not later than 90 days after August 3, 2010) “conforming amendments” to the Guidelines that “achieve consistency with other guide- line provisions and applicable law.” Read most naturally, “applicable law” refers to the law as changed by the Fair Sentencing Act, including the provi- sion reducing the crack mandatory minimums. As the Commission understood this provi- sion, achieving consistency with “other guideline provi- sions” means reducing the base offense levels for all crack amounts proportionally (using the new 18-to-1 ratio), in- cluding the offense levels governing small amounts of crack that did not fall within the scope of the mandatory minimum provisions. 75 Fed. Reg. 661. And consis- tency with “other guideline provisions” and with prior Com- mission practice would require application of the new Guidelines amendments to offenders who committed their offense prior to the new amendments’ effective date but were sentenced thereafter. See USSG e.g., USSG App. C, amdts. 706, 711 ; see also Memorandum from G. Schmitt, L. Reed, & K. Cohen, USSC, to Chair Hinojosa et al., Subject: Analy- sis of the Impact of the Crack Cocaine Amendment if Made Retroactive 23 Cf. USSG App. C, amdt. 571 (amendment increasing restitution, which may present ex post facto and one-book-rule concerns, would apply only to defendants sentenced for post-amendment offenses), discussed post, at 5 (SCALIA, J., dissenting). Fourth, applying the 1986 Drug Act’s old mandatory minimums to the post-August 3 sentencing of pre-August 3 offenders would create disparities of a kind that Congress Cite as: 567 U. S. (2012) 15 Opinion of the Court enacted the Sentencing Reform Act and the Fair Sentenc- ing Act to prevent. Two individuals with the same number of prior offenses who each engaged in the same criminal conduct involving the same amount of crack and were sentenced at the same time would receive radically differ- ent sentences. For example, a first-time post-Act offender with five grams of crack, subject to a Guidelines range of 21 to 27 months, could receive two years of imprisonment, while an otherwise identical pre-Act offender would have to receive the 5-year mandatory minimum. Compare USSG (c) with 21 U.S. C. (2006 ed.). A first-time post-Act 50-gram offender would be subject to a Guidelines range of less than six years of imprisonment, while his otherwise identical pre-Act coun- terpart would have to receive the 10-year mandatory minimum. Compare USSG (c) with 21 U.S. C. (2006 ed.). Moreover, unlike many prechange/postchange discrep- ancies, the imposition of these disparate sentences in- volves roughly contemporaneous sentencing, i.e., the same time, the same place, and even the same judge, thereby |
Justice Breyer | 2,012 | 2 | majority | Dorsey v. United States | https://www.courtlistener.com/opinion/802791/dorsey-v-united-states/ | time, the same place, and even the same judge, thereby highlighting a kind of unfairness that modern sentenc- ing statutes typically seek to combat. See, e.g., 28 U.S. C. §9(b)(1)(B) (purposes of Guidelines-based sentencing include “avoiding unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct”); S. Rep. No. 98– 223, p. 74 (1983) (explaining rationale for using same, current Guidelines for all roughly contemporaneous sen- tencings). Further, it would involve imposing upon the pre-Act offender a pre-Act sentence at a time after Con- gress had specifically found in the Fair Sentencing Act that such a sentence was unfairly long. Finally, one cannot treat such problems as if they were minor ones. Given the 5-year statute of limitations for federal drug offenses, the 11-month median time between 16 DORSEY v. UNITED STATES Opinion of the Court indictment and sentencing for those offenses, and the approximately 5,000 federal crack offenders convicted each year, many pre-Act offenders were not (and will not be) sentenced until after August 3, 2010, when the new, more lenient mandatory minimums took See 18 U.S. C. Administrative Office of United States Courts, Judicial Business of the United States Courts, p. 272 (2010) (Table D–10); Report 1. Fifth, not to apply the Fair Sentencing Act would do more than preserve a disproportionate status quo; it would make matters worse. It would create new anomalies—new sets of disproportionate sentences—not previously present. That is because sentencing courts must apply new Guide- lines (consistent with the Fair Sentencing Act’s new min- imums) to pre-Act offenders, see –14, and the 1986 Drug Act’s old minimums would trump those new Guidelines for some pre-Act offenders but not for all of them—say, pre-Act offenders who possessed crack in small amounts not directly the subject of mandatory minimums. Consider, for example, a first-time offender convicted of possessing with intent to distribute four grams of crack. No mandatory sentence, under the 1986 Drug Act or the Fair Sentencing Act, applies to an offender possessing so small an amount. Yet under the old law, the Commission, charged with creating proportionate sentences, had created a Guidelines range of 41 to 51 months for such an of- fender, a sentence proportional to the 60 months that the 1986 Drug Act required for one who trafficked five grams of crack. See at 5–6; USSG (c) (Nov. 2009). The Fair Sentencing Act, however, requires the Com- mission to write new Guidelines consistent with the new law. The Commission therefore wrote new Guidelines that provide a sentencing range of 21 to 27 months—about two years—for |
Justice Breyer | 2,012 | 2 | majority | Dorsey v. United States | https://www.courtlistener.com/opinion/802791/dorsey-v-united-states/ | a sentencing range of 21 to 27 months—about two years—for the first-time, 4-gram offender. See USSG (c) And the Sentencing Reform Act Cite as: 567 U. S. (2012) 17 Opinion of the Court requires application of those new Guidelines to all of- fenders (including pre-Act offenders) who are sentenced once those new Guidelines take See 18 U.S. C. Those new Guidelines must take effect and apply to a pre-Act 4-gram offender, for such an of- fender was never subject to a trumping statutory 1986 Drug Act mandatory minimum. However, unless the Fair Sentencing Act’s new, more lenient mandatory mini- mums apply to pre-Act offenders, an otherwise identical of- fender who possessed five grams would have to receive a 5-year sentence. See 21 U.S. C. (2006 ed., Supp. IV). For example, imagine that on July 1, 2010, both Smith and Jones commit a crack crime identical but for the fact that Smith possesses with intent to distribute four grams of crack and Jones five grams. Both are sentenced on December 1, 2010, after the Fair Sentencing Act and the new Guidelines take Smith’s Guidelines sentence would be two years, but unless the Fair Sentencing Act applies, Jones’s sentence would have to be five years. The difference of one gram would make a difference, not of only one year as it did before enactment of the Fair Sentencing Act, but instead of three years. Passage of the new Act, designed to have brought about fairer sentences, would here have created a new disparate sentencing “cliff.” Nor can one say that the new Act would produce dispro- portionalities like this in only a few cases. In fiscal year 2010, 17.8 percent of all crack offenders were convicted of- offenses not subject to the 1986 Drug Act’s minimums. Report 1. And since those minimums apply only to some drug offenders and they apply in different ways, one can find many similar examples of disproportionalities. See Appendix B, infra. Thus, application of the 1986 Drug Act minimums to pre-Act offenders sentenced after the new Guidelines take effect would produce a crazy quilt of sentences, at odds with Congress’ basic efforts to achieve 18 DORSEY v. UNITED STATES Opinion of the Court more uniform, more proportionate sentences. Congress, when enacting the Fair Sentencing Act, could not have intended any such result. Sixth, we have found no strong countervailing considera- tion. Amicus and the dissent argue that one might read much of the statutory language we have discussed as embodying exceptions, permitting the old 1986 Drug Act minimums to apply to pre-Act offenders sentenced after August 3, |
Justice Breyer | 2,012 | 2 | majority | Dorsey v. United States | https://www.courtlistener.com/opinion/802791/dorsey-v-united-states/ | minimums to apply to pre-Act offenders sentenced after August 3, 2010, when the Fair Sentencing Act took The words “applicable law” in the new Act, for example, could, linguistically speaking, encompass the 1986 Drug Act minimums applied to those sentenced after August 3. Post, at 4–6 (SCALIA, J., dissenting). Moreover, Congress could have insisted that the Commission write new Guide- lines with special speed to assure itself that new, post- August 3 offenders—but not old, pre-August 3 offenders— would receive the benefit of the new Act. Post, at 6–8. Further, amicus and the dissent note that to apply the new Act’s minimums to the old, pre-August 3 offenders will create a new disparity—one between pre-Act offenders sentenced before August 3 and those sentenced after that date. Post, We do not believe that these arguments make a critical difference. Even if the relevant statutory language can be read as amicus and the dissent suggest and even if Congress might have wanted Guidelines written speedily simply in order to apply them quickly to new offenders, there is scant indication that this is what Congress did mean by the language in question nor that such was in fact Congress’ motivation. The considerations we have set –17 and this page, strongly suggest the contrary. We also recognize that application of the new minimums to pre-Act offenders sentenced after August 3 will create a new set of disparities. But those disparities, reflecting a line-drawing effort, will exist whenever Congress enacts a Cite as: 567 U. S. (2012) 19 Opinion of the Court new law changing sentences (unless Congress intends re- opening sentencing proceedings concluded prior to a new law’s effective date). We have explained how in federal sentencing the ordinary practice is to apply new penalties to defendants not yet sentenced, while withholding that change from defendants already ; compare 18 U.S. C. with And we have explained how, here, continued application of the old 1986 Drug Act minimums to those pre-Act offend- ers sentenced after August 3 would make matters worse. at 16–18. We consequently conclude that this particular new disparity (between those pre-Act offenders already sentenced and those not yet sentenced as of August 3) cannot make a critical difference. For these reasons considered as a whole, we conclude that Congress intended the Fair Sentencing Act’s new, lower mandatory minimums to apply to the post-Act sentencing of pre-Act offenders. That is the Act’s “plain import” or “fair implication.” B We add one final point. Several arguments we have discussed involve the language of statutes that determine how new Guidelines take –14. What about |
Justice Breyer | 2,012 | 2 | majority | Dorsey v. United States | https://www.courtlistener.com/opinion/802791/dorsey-v-united-states/ | statutes that determine how new Guidelines take –14. What about those who committed an offense prior to August 3 and were sentenced after August 3 but before November 1, 2010—a period after the new Act’s effective date but before the new Guidelines first took effect? Do the Fair Sentenc- ing Act’s new mandatory minimums apply to them? In our view, the new Act’s lower minimums apply to them as well. Our reason is that the statute simply in- structs the Commission to promulgate new Guidelines “as soon as practicable” (but no later than 90 days after the Act took effect). As far as Congress was concerned, the Commission might have (having prepared new Guidelines in advance) promulgated those 20 DORSEY v. UNITED STATES Opinion of the Court Guidelines within a few days—perhaps on August 3 itself. At the same time, the Commission possesses ample au- thority to permit appropriate adjustments to be made in the Guidelines sentences of those sentenced after August 3 but prior to the new Guidelines promulgation. See 28 U.S. C. (power to make Guidelines reductions retroactive); –41334 (amended 18-to-1 Guidelines made retroactive). In any event, courts, treating the Guidelines as advisory, possess au- thority to sentence in accordance with the new minimums. For these reasons, if the Fair Sentencing Act’s new minimums apply to all of those sentenced after August 3, 2010 (even if the new Guidelines were not yet ready), it is possible to foresee a reasonably smooth transition. On the other hand, it is difficult to foresee such a transition if the new Act’s application is keyed to a later date, thereby leaving the courts unable to take the new Act fully into account, particularly when that circumstance might create additional disparities and uncertainties that courts and the Commission may be helpless to correct. We have no reason to believe Congress would have wanted to impose an unforeseeable, potentially complex application date. * * * We vacate the Court of Appeals’ judgments and remand these cases for further proceedings consistent with this opinion. It is so ordered. Cite as: 567 U. S. (2012) 21 Appendix A to opinionCourt Court Opinion of the of the APPENDIXES A Act of Feb. 25, 1871, 1 U.S. C. Repeal of statutes as affecting existing liabilities “The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liabil- ity incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution |
Justice Breyer | 2,012 | 2 | majority | Dorsey v. United States | https://www.courtlistener.com/opinion/802791/dorsey-v-united-states/ | for the purpose of sustaining any proper action or prosecution for the en- forcement of such penalty, forfeiture, or liability.” Sentencing Reform Act of 1984, 18 U.S. C. (A)(ii) Imposition of a sentence “FACTORS TO BE CONSIDERED IN IMPOSING A SEN- TENCE. The court, in determining the particu- lar sentence to be imposed, shall consider the kinds of sentence and sentencing range established for the applicable category of offense committed by the applicable category of defendant as set in the guidelines that are in effect on the date the defendant is sentenced” Fair Sentencing Act of 2010, Emergency Authority for United States Sentencing Commission “The United States Sentencing Commission shall— “(1) promulgate the guidelines, policy statements, or amendments provided for in this Act as soon as prac- ticable, and in any event not later than 90 days after the date of enactment of this Act, in accordance with the procedure set in section 21(a) of the Sen- 22 DORSEY v. UNITED STATES Appendix A to opinionCourt Court Opinion of the of the tencing Act of 1987 (28 U.S. C. note), as though the authority under that Act had not expired; and “(2) pursuant to the emergency authority provided under paragraph (1), make such conforming amend- ments to the Federal sentencing guidelines as the Commission determines necessary to achieve con- sistency with other guideline provisions and appli- cable law.” Cite as: 567 U. S. (2012) 23 Appendix B to opinionCourt Court Opinion of the of the B The following chart shows the sentencing scheme that would result for first-time pre-Act crack offenders if the 1986 Drug Act’s old 100-to-1 mandatory minimums re- main in effect after the Fair Sentencing Act’s new 18-to-1 Guidelines became effective. 21 U.S. C. (A)– (C) (2006 ed.); USSG §(c), 5G1.1(b) 1986 Drug Act Minimums and Fair Sentencing Act Guide- lines for Category I Offenders with No Prior Drug Felonies Drug Mandatory Guidelines Sentence Quantity Minimum Range 1g 0 months 10–16 10–16 2g 0 15–21 15–21 3g 0 21–27 21–27 4g 0 21–27 21–27 5g 60 21–27 60 10 g 60 27–33 60 15 g 60 33–41 60 20 g 60 41–51 60 25 g 60 51–63 60–63 35 g 60 63–78 63–78 50 g 120 63–78 120 100 g 120 63–78 120 150 g 120 78–97 120 200 g 120 97–121 120–121 500 g 120 121–151 121–151 1,500 g 120 151–188 151–188 The chart illustrates the disproportionate sentences that such a scheme would create. See at 16–18. For one thing, it would create sentencing “cliffs” at the 1986 Act’s old triggering amounts of 5 grams and |
Justice Breyer | 2,012 | 2 | majority | Dorsey v. United States | https://www.courtlistener.com/opinion/802791/dorsey-v-united-states/ | the 1986 Act’s old triggering amounts of 5 grams and 50 grams (where the old minimums would entirely trump the new Guide- lines), resulting in radically different Guidelines sentences 24 DORSEY v. UNITED STATES Appendix B to opinionCourt Court Opinion of the of the for small differences in quantity. For another, because of those “cliffs,” the scheme would create similar Guidelines sentences for offenders who dealt in radically different amounts of crack, e.g., 50 grams versus 500 grams. To be sure, as amicus points out, Congress has provided two mechanisms through which an offender may escape an otherwise applicable mandatory minimum, diminishing this problem for some offenders. First, an offender may escape a minimum by providing substantial assistance in the investigation or prosecution of another person. 18 U.S. C. Fed. Rule Crim. Proc. 35(b); see also 28 U.S. C. USSG Second, under 18 U.S. C. drug offenders who have little or no criminal history and who satisfy other requirements in the provi- sion may obtain “safety valve” relief. See also USSG And because of these mechanisms a substantial portion of first-time offenders are relieved of application of a manda- tory minimum. However, offenders with a criminal his- tory category of II or higher are ineligible for “safety valve” relief; they escape application of a minimum at a much lower percentage. See Report 193 (Table 8–8). Crack Offender Categories by Application of 1986 Drug Act Mandatory Min. (FY 2010) Total with Percent with Quantity Quantity Total Percent Carrying Carrying Relieved of Relieved of Offender Total Mandatory Mandatory Mandatory Mandatory Category Offenders Min. Min. Min. Appl. Min. Appl. I 1,055 890 84.4% 525 59.0% II 556 445 80.0% 129 29.0% III 865 703 81.3% 208 29.6% IV 556 469 84.4% 124 26.4% V 380 308 81.1% 89 28.9% VI 1,345 1,086 80.7% 332 30.6% All 4,751 3,905 82.2% 1,407 36.0% Cite as: 567 U. S. (2012) 25 Appendix B to opinionCourt Court Opinion of the of the Yet similar sentencing anomalies would result for re- peat offenders if the 1986 Drug Act’s minimums remain in effect after the Fair Sentencing Act’s Guidelines became effective. Take, for example, Category II offenders. 1986 Drug Act Minimums and Fair Sentencing Act Guide- lines for Category II Offenders with No Prior Drug Felonies Drug Mandatory Guidelines Sentence Quantity Minimum Range 1g 0 months 12–18 12–18 2g 0 18–24 18–24 3g 0 24–30 24–30 4g 0 24–30 24–30 5g 60 24–30 60 10 g 60 30–37 60 15 g 60 37–46 60 20 g 60 46–57 60 25 g 60 57–71 60–71 35 g 60 70–87 70–87 |
Justice Breyer | 2,012 | 2 | majority | Dorsey v. United States | https://www.courtlistener.com/opinion/802791/dorsey-v-united-states/ | 25 g 60 57–71 60–71 35 g 60 70–87 70–87 50 g 120 70–87 120 100 g 120 70–87 120 150 g 120 87–108 120 200 g 120 108– 120– 500 g 120 –168 –168 1,500 g 120 168–210 168–210 As the chart illustrates, for Category II offenders account- able for 5 to 22 grams of crack or for 50 to 195 grams, the 100-to-1 minimums would entirely trump the 18-to-1 Guidelines, producing the same anomalies—dissimilar sen- tences for similar quantities and similar sentences for dis- similar quantities—described above. In contrast, a scheme with the Fair Sentencing Act’s 18- to-1 minimums and new Guidelines produces the propor- tionality in sentencing that Congress intended in enacting 26 DORSEY v. UNITED STATES Appendix B to opinionCourt Court Opinion of the of the the Sentencing Reform Act and the Fair Sentencing Act. Fair Sentencing Act Minimums and Guidelines for Cate- gory II Offenders with No Prior Drug Felonies Drug Mandatory Guidelines Sentence Quantity Minimum Range 1g 0 months 12–18 12–18 2g 0 18–24 18–24 3g 0 24–30 24–30 4g 0 24–30 24–30 5g 0 24–30 24–30 10 g 0 30–37 30–37 15 g 0 37–46 37–46 20 g 0 46–57 46–57 25 g 0 57–71 57–71 35 g 60 70–87 70–87 50 g 60 70–87 70–87 100 g 60 70–87 70–87 150 g 60 87–108 87–108 200 g 60 108– 108– 500 g 120 –168 –168 1,500 g 120 168–210 168–210 Cite as: 567 U. S. (2012) 1 SCALIA, J., dissenting SUPREME COURT OF THE UNITED STATES Nos. 11–5683 and 11–5721 EDWARD DORSEY, SR., PETITIONER 11–5683 v. UNITED STATES COREY A. HILL, PETITIONER 11–5721 v. |
Justice Alito | 2,012 | 8 | second_dissenting | Lafler v. Cooper | https://www.courtlistener.com/opinion/625833/lafler-v-cooper/ | For the reasons set out in Parts I and II of JUSTICE SCALIA’s dissent, the Court’s holding in this case mis- applies our ineffective-assistance-of-counsel case law and violates the requirements of the Antiterrorism and Effec- tive Death Penalty Act of 1996. Respondent received a trial that was free of any identified constitutional error, and, as a result, there is no basis for concluding that respondent suffered prejudice and certainly not for grant- ing habeas relief. The weakness in the Court’s analysis is highlighted by its opaque discussion of the remedy that is appropriate when a plea offer is rejected due to defective legal repre- sentation. If a defendant’s Sixth Amendment rights are violated when deficient legal advice about a favorable plea offer causes the opportunity for that bargain to be lost, the only logical remedy is to give the defendant the benefit of the favorable deal. But such a remedy would cause seri- ous injustice in many instances, as I believe the Court tacitly recognizes. The Court therefore eschews the only logical remedy and relies on the lower courts to exercise sound discretion in determining what is to be done. Time will tell how this works out. The Court, for its part, finds it unnecessary to define “the boundaries of proper discretion” in today’s opinion. Ante, at 13. In my view, requiring the prosecution to renew an old plea offer 2 LAFLER v. COOPER ALITO, J., dissenting would represent an abuse of discretion in at least two circumstances: first, when important new information about a defendant’s culpability comes to light after the offer is rejected, and, second, when the rejection of the plea offer results in a substantial expenditure of scarce prosecutorial or judicial resources. The lower court judges who must implement today’s holding may—and I hope, will—do so in a way that miti- gates its potential to produce unjust results. But I would not depend on these judges to come to the rescue. The Court’s interpretation of the Sixth Amendment right to counsel is unsound, and I therefore respectfully dissent. |
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