Attorney General's Opinion

Attorney General, Richard Blumenthal

February 21, 2008

Allan B. Taylor, Chairman

State of Connecticut Board of Education

165 Capitol Avenue

Hartford, CT  06145

Dear Chairman Taylor:

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 Conn. Gen. Stat. §§ 10-226b, 10-226c.  The plans may propose a variety of methods for correcting the racial imbalance.  Each local plan can and should be evaluated by the State Board of Education individually, taking into account the particular factors and proposed solutions in each case.  Conn. Gen. Stat. §§ 10-226c and 10-226d.  This approach embodies the well-established principle that a law must be upheld against constitutional challenge if it can be implemented in individual cases in accordance with constitutional requirements.  If a law can be interpreted and applied to be consistent with constitutional standards - - as this statute can be - - the State Board of Education has a duty to do so.³  The constitutional standards articulated by the United States Supreme Court in Parents Involved permit and require this case by case determination, difficult as it may be in some instances.

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>U.S.</st2:country-region> 306, 325 (2003) (quoting Marks v. United States, 430 <st2:country-region>U.S.</st2:country-region> 18, 193 (1977)); accord DeStefano v. Emergency Housing Group, Inc., 247 F.3d 397, 418-19 (2d Cir. 2001).  In Parents Involved, Justice Kennedy provided the fifth vote in support of the judgment but offered a rationale in a concurring opinion divergent from the plurality opinion authored by Chief Justice Roberts as well as the dissenting opinions of Justices Stevens and Breyer.  Whether courts will conclude that Justice Kennedy’s concurrence is controlling precedent is difficult to predict.  For now and the indefinite future, his concurring opinion assumes paramount importance for guidance as to the state of the law.

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.” Id. at 2797 (Kennedy, J., concurring).  A local board can 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.  Such measures may include siting new schools in strategic locations, creating attendance zones that take into account generally 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. at 2792  (Kennedy, J., concurring). Some of these measures are already set forth in Conn. Gen. Stat. § 10-226h and may be considered by the local boards of education.

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 Seattle, Washington and Jefferson County, Kentucky.  The plaintiffs in both cases argued that because the student assignments were based on race they impermissibly violated the United States Constitution’s Fourteenth Amendment Equal Protection clause.  While different in their scope and method of operation, the student assignment plans in both Seattle and Jefferson County were voluntarily adopted and based on a belief that there are educational benefits to racially diverse student bodies and, conversely, that racial isolation is harmful. 

In Seattle, the student assignment program involved only the secondary schools.  Seattle adopted an “open choice” plan for all of its high schools.  Students entering their first year were free to select any of the ten high schools to attend.  In the event that too many students selected a particular school, the district would employ several “tiebreakers,” one of which was an “integration tiebreaker.”  The integration tiebreaker was triggered once a school was determined to be “racially imbalanced.”⁴   In a racially imbalanced school, a student’s race, and how it would effect the racial balance at the school, was used to determine if the student could be assigned to that school.  

The Jefferson County student assignment plan, which operated at both the elementary and secondary levels, focused on the percentage of the student population classified as black to determine if racial imbalance existed in any given school.  All schools that were not magnet schools were required to maintain a minimum black student enrollment of 15% and a maximum black student enrollment of 50%.  The racial balancing was triggered when a school was at one of these extremes of black student enrollment.  In such instances, a student whose race would contribute to furthering the school’s racial imbalance was denied placement.

 

A. The Majority Opinion

The Court’s opinion, authored by Chief Justice Roberts, held in favor of the plaintiffs and struck down both student assignment plans as violating the Fourteenth Amendment’s guarantee of equal protection.  When an individual’s race is utilized by the government to distribute burdens or benefits, the court reviews this classification under the strict scrutiny standard.  Parents Involved, 127 S.Ct. at 2751.  This standard requires the government to demonstrate that the use of race is narrowly tailored to achieve a compelling government interest.  Id. at 2751-2752. The Court ruled that there have been only two compelling state interests recognized by the Court to justify the use of race in the education context: (1) eliminating the present effects of past state sponsored, so called de jure, segregation; and (2) seeking to provide a diverse, in its broadest sense, college educational experience, so long as race is only one of several factors taken into account.⁵   Id. at 2752 -2753. 

In Parents Involved, the Court found that there was never a ruling by a court of law that Seattle had engaged in de jure segregation.  Jefferson County had previously been under a court order to desegregate, but that order had been dissolved in 2000 when the District Court found that the County had eliminated the harms associated with past de jure segregation.  In the absence of a mandatory desegregation order, neither Seattle nor Jefferson County’s student assignment plans served to eliminate harm traceable to de jure segregation.  The Court further opined that its decision in Grutter v. Bollinger, 539 U.S. 499 (2005), which upheld a limited use of race as one of many factors to promote diversity in the context of college admissions programs, was inapplicable to the cases before it.  Unlike the program in Grutter, neither the Seattle nor Jefferson County student assignment plans allowed for “a meaningful individualized review of an applicant” and, in the end, race was the sole determinative factor for assignment.  Parents Involved, 127 S.Ct. at 2753-2754.  In addition, the Court found that there was a lack of evidence to show that either school system had “considered methods other than explicit racial classifications to achieve their stated goals.”  Id. at 2760.  For these reasons, the Court ruled that neither student assignment program was narrowly tailored, nor was there a compelling state interest involved, and thus the plans failed to meet the standards of strict scrutiny.  

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.

III.  Conclusion

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

RICHARD BLUMENTHAL

ATTORNEY GENERAL

---

Back to the 2008 Opinions Page
Back to the Opinions Page