Attorney General's Opinion
Attorney General, Richard Blumenthal
February 21, 2008
You have asked whether the State Board of Education should continue to enforce Connecticut’s elementary and secondary school intra-district racial imbalance statutes, Conn. Gen. Stat. § 10-226a through Conn. Gen. Stat. § 10-226e, in light of the United States Supreme Court’s decision in Parents Involved in Community Schools v. Seattle School District No. 1, et al, 127 S.Ct. 2738 (2007).1
We conclude that the State Board of Education must continue to enforce the law to require local plans addressing racial imbalance, but assure that each plan complies with the Supreme Court mandates set forth in Parents Involved. If the state Board of Education finds that “racial imbalance exists in a public school,” local boards of education should continue to submit plans to the State Board to correct the racial imbalance.2
Understanding the effect of the Parents Involved decision on §§ 10-226a to 10-226e is complicated by the lack of a majority opinion on all issues and in particular on the key issue of what measures may be taken to address racial isolation or imbalance in schools. As a general proposition, “‘[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’” Grutter v. Bolinger, 539 <st2:country-region>
According to the principles set forth in the Parents Involved decision, and using Justice Kennedy's concurring opinion as guidance, the plans submitted by the local boards of education under Conn. Gen. Stat. § 10-226c cannot correct racial imbalance using school assignments based solely on an individual student’s racial classification. “Race may be one component . . . but other demographic factors, plus special talents and needs, should also be considered.”
I. Summary of Parents Involved Decision
The United States Supreme Court’s Parents Involved decision is the most recent in a long line of cases addressing the constitutionality of the use of race in reducing/eliminating racial segregation in elementary and secondary schools. The issue presented in Parents Involved concerned a challenge to student school assignment plans in
A. The Majority Opinion
The Court’s opinion, authored by
In Parents Involved, the Court found that there was never a ruling by a court of law that
B. Plurality Opinion
Certain portions of Chief Justice Roberts' opinion failed to garner the support of a majority of his fellow justices. Section III-B of his opinion rejected the idea that racial balancing could ever be a compelling state interest. Id. at 2757-2759. In that section, Chief Justice Roberts asserted that plans that seek to remedy racial imbalance by using racial classifications, in the absence of a finding that there was state sponsored discrimination, are patently unconstitutional. Id. at 2758. In Section IV of the opinion, Justice Roberts expressly declined to examine alternate means of achieving racial balance which did not directly rely on race:
These other means – e.g., where to construct schools, and which academic offerings to provide to attract students to certain schools – implicate different considerations than the explicit racial classifications at issue in these cases, and we express no opinion on their validity – not even in dicta.
Id. at 2766.
C. Justice Kennedy’s Concurrence
Justice Kennedy did not join in sections III-B and IV of Chief Justice Robert’s plurality opinion. Instead, Justice Kennedy concurred only in the judgment as to the central issue of the constitutional limitations on addressing racial imbalance or isolation in schools. Because Justice Kennedy represented the fifth vote supporting the Court’s judgment, his concurring opinion provides the best guidance as to the state of the law and its application to Connecticut’s statutes.
Justice Kennedy's concurrence sets forth four important points: (1) there is a compelling interest in avoiding racial isolation; (2) there is a separate and distinct compelling interest in creating a diverse student population; (3) the Constitution does not mandate that de facto segregation be ignored by state and local officials; and (4) schools can constitutionally use race conscious measures to address concerns of racial isolation and diversity, so long as they avoid treating students differently solely on the basis of race.
Justice Kennedy begins his concurrence by declaring that “[d]iversity, depending on its meaning and definition, is a compelling educational goal a school district can pursue.” Id. at 2789. He later expands upon this by concluding that:
[T]his 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. A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue. Likewise, a district may consider it a compelling interest to achieve a diverse student population. Race may be one component of that diversity, but other demographic factors, plus special talents and needs, should also be considered.
Id. at 2797. In Justice Kennedy’s view, so long as race is not the sole factor and there is some type of individualized consideration of the various attributes a student can bring to the school, race can be considered.
Justice Kennedy also takes issue with the suggestion in the plurality opinion that “the Constitution requires school districts to ignore the problem of de facto segregation in schooling.” Id. at 2791. In his view, to suggest that “the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools . . . is . . . profoundly mistaken.” Id. “In the administration of public schools by the state and local authorities it is permissible to consider the racial makeup of schools and to adopt general policies to encourage a diverse student body, one aspect of which is its racial composition.” Id. at 2792. Justice Kennedy goes on to note that:
[I]f school authorities are concerned that the student-body composition of certain schools interferes with the objective of offering an equal educational opportunity to all of their students, they are free to devise race conscious measures to address the problem in a general way and without treating each student in different fashion solely on the basis of a systemic, individual typing by race.
Id. (Emphasis added). In addition, Justice Kennedy observes that ways in which this could be accomplished include: siting new schools in strategic locations, creating attendance zones taking into account, in a general way, the demographics of neighborhoods, committing resources for special programs, recruiting students and faculty in a targeted fashion, and tracking enrollments, performance, and other statistics by race. Id. In his view, “[t]hese mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or is she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible.” Id. at 2792.
II. Connecticut Plans
An analysis regarding the appropriateness of a plan developed pursuant to Conn. Gen. Stat. § 10-226e in light of the Parents Involved decision can only be undertaken when a district actually files its plan with the State Board of Education. The plans utilized by the Seattle and Jefferson County school districts required student assignment decisions in certain circumstances to ultimately be made predominantly if not totally on the basis of the racial classification of individual students. This key feature of the policy is what the Court found impermissible. Our statute, Conn. Gen. Stat. § 10-226e, does not require that a local district develop a plan that utilizes racial classification of individual students as the sole deciding factor in school assignments. Further, unlike the racial balance plans in Seattle and Jefferson County, there is no automatic imposition of a formulaic “racial tiebreaker,” which the Court found unconstitutional.
Local districts can design plans which, as Justice Kennedy stated, are race conscious but do not result in a singular focus on individual students’ racial classifications. Such permissible plans might include attributes such as creating attendance zones and establishing special programs to attract students of diverse backgrounds without relying on individualized racial classifications.
The State Board of Education should continue to enforce the provisions of Conn. Gen. Stat. § 10-226a through Conn. Gen. Stat. § 10-226. In enforcing these statutes, the State Board must be mindful of Parents Involved in evaluating local plans addressing racial imbalance. The United States Supreme Court’s decision in Parents Involved prohibits the use of individualized classifications based solely on race in student assignment or reassignment plans. Plans permissible under Parents Involved may regard race as a component of diversity, and use race conscious measures to achieve such diversity, so long as they use other demographic factors and avoid treating individual students differently based solely on systematic racial classification. Applying the Parents Involved test clearly requires assessment of specific individual plans - - the means and methods each uses to achieve goals of diversity served by the state statute.
Very truly yours,
Emily V. Melendez
Assistant Attorney General
1 The U.S. Supreme Court granted certiorari in another case, Meredith v. Jefferson County Board of Education et al, Petition No. 05-915,which was heard and decided together with Parents Involved. Both cases presented “the same underlying legal question-whether a public school that had not operated legally segregated schools or has been found to be unitary may choose to classify students by race and rely upon that classification in making schools assignments.” 127 S.Ct. at 2746. The two cases are collectively referred to in this opinion as “Parents Involved".
2 For purposes of Conn. Gen. Stat. § 10-226a to 10-226e, inclusive, “ ‘racial imbalance’ means a condition wherein the proportion of pupils of racial minorities in all of the grades of a public school of the secondary level or below taken together substantially exceeds or falls substantially short of the proportion of such public school pupils in all of the same grades of the school district in which said school is situated taken together.”
4 A school was considered racially imbalanced if it was not within 10 percentage points of the overall district’s white/non-white enrollment, set at 41 and 59 percent respectively.
5 The Court did not go so far as to say that there were no other possible interests, but just that the resolution of these cases only required the examination of the two that prior cases had recognized as compelling. 127 S.Ct. at 2752.