12345678910111213141516171819202122232425Official - Subject to Final Review IN THE SUPREME COURT OF THE UNITED STATES - - - - - - - - - - - - - - - - -x PARENTS INVOLVED IN : COMMUNITY SCHOOLS, : Petitioner : v. : No. 05-908 SEATTLE SCHOOL DISTRICT : NO. 1, ET AL. : - - - - - - - - - - - - - - - - -x Washington, D.C. Monday, December 4, 2006 The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:01 a.m. APPEARANCES: HARRY J.F. KORRELL, ESQ., Seattle, Wash.; on behalf of the Petitioner. GEN. PAUL D. CLEMENT, ESQ., Solicitor General, Department of Justice, Washington, D.C.; as amicus curiae, supporting the Petitioner. MICHAEL F. MADDEN, ESQ., Seattle, Wash.; on behalf of the Respondent. 1 Alderson Reporting Company12345678910111213141516171819202122232425Official - Subject to Final Review C O N T E N T S ORAL ARGUMENT OF PAGE HARRY J.F. KORRELL, ESQ. On behalf of the Petitioner 3 ORAL ARGUMENT OF GEN PAUL D. CLEMENT, ESQ. As amicus curiae, supporting the Petitioner 16 ORAL ARGUMENT OF MICHAEL F. MADDEN, ESQ. On behalf of the Respondent 26 REBUTTAL ARGUMENT OF HARRY J.F. KORRELL, ESQ. On behalf of Petitioner 51 2Alderson Reporting Company12345678910111213141516171819202122232425Official - Subject to Final Review P R O C E E D I N G S (10:01 a.m.) CHIEF JUSTICE ROBERTS: We'll hear argument first today in 05-908, Parents Involved in Community Schools versus Seattle School District Number 1. Mr. Korrell. ORAL ARGUMENT OF HARRY J.F. KORRELL ON BEHALF OF PETITIONER MR. KORRELL: Mr. Chief Justice, and may it please the Court. In an effort to achieve its desired racial balance in its popular high schools, the Seattle school district denied over 300 children, both white and minority children, admission to their chosen schools solely because of their race and without any individualized consideration. This strikes at the heart of the Equal Protection Clause which commands that Government treat people as individuals, not simply as members of a racial class. This fundamental equal protection principle was reiterated in Grutter and in Gratz. The central question in this case is not, as the school district and many of its allies suggest, whether integration is important or whether desegregation is compelling. The central question in this case is whether outside of the 3 Alderson Reporting Company12345678910111213141516171819202122232425Official - Subject to Final Review remedial context, diversity defined as the school district does, as a white/non-white racial balance, can be a compelling interest that justifies the use of race discrimination in high school admissions. JUSTICE GINSBURG: Mr. Korrell --JUSTICE KENNEDY: Do you disagree in general with the Solicitor General's brief? Do you agree in general with the brief submitted by the Government or do you have differences with it in its approach? MR. KORRELL: Justice Kennedy, we -- we agree mostly with the Solicitor General's brief. I believe the Solicitor General might take a different position on whether race neutral mechanisms can be used to accomplish race specific purposes. JUSTICE KENNEDY: Well, I can --MR. KORRELL: But that's not an issue the court needs to reach in this case. JUSTICE KENNEDY: Well, it, it is a point that I, I'd like both him and you to discuss at some point during your argument. If -- can you use race for site selection? When you have, you need to build a new school. There are three sites. One of them would be all one race. Site two would be all the other race. Site three would be a diversity of races. Can the school board with, with the intent to have diversity 4 Alderson Reporting Company12345678910111213141516171819202122232425Official - Subject to Final Review pick site number 3? MR. KORRELL: Justice Kennedy, I think the answer turns on the reason that the schools have the racial compositions that they do. JUSTICE KENNEDY: It -- there's -- well, we can have all kinds of different hypotheticals, but there's residential housing segregation, and it wants, it wants, the board wants to have diversity. MR. KORRELL: Your Honor, our position is that if, if the resulting -- if the racial composition of those schools is not the result of past de jure segregation --JUSTICE KENNEDY: No. It is a new school. It's a new school. MR. KORRELL: In that case, Your Honor, Parents' position is that the Government can't be in the position of deciding what right racial mix is. JUSTICE KENNEDY: So it'd have to take the three sites, all of them in the hypothetical, all of them equal, and just flip a coin, because otherwise it would be using a --MR. KORRELL: Your Honor, obviously it is not the facts of the Seattle case. In the hypothetical Your Honor posits, perhaps the right analogy is something similar to the, a redistricting cases. Where 5 Alderson Reporting Company12345678910111213141516171819202122232425Official - Subject to Final Review a court could look at see whether the racial motive was a predominant factor as opposed to -- JUSTICE KENNEDY: No, no. The school board says we want, right up front, we want racial diversity in our new schools. Illicit under the Fourteenth Amendment in your case? MR. KORRELL: Your Honor, school districts can do many, many things through race neutral means that they could not do with race discrimination. JUSTICE GINSBURG: But can they have a race conscious objective? I think that that's the question that Justice Kennedy is asking you, and I don't get a clear answer. You say you can't use a racial means. But can you have a racial objective? That is, you want to achieve balance in the schools. MR. KORRELL: Justice Ginsburg, our position is that that is prohibited by the Constitution absent past discrimination. JUSTICE SCALIA: You would object, then, to magnet schools? You would object to any system that is designed to try to cause people voluntarily to go into a system that is more racially mixed? MR. KORRELL: Justice Scalia, our objection to the Seattle program is that it is not a race neutral means. JUSTICE SCALIA: No, I understand. But I'm 6 Alderson Reporting Company12345678910111213141516171819202122232425Official - Subject to Final Review trying to find what, you know, the outer limits of your contentions are. It doesn't seem to me that your briefs indicated that you would object to something like magnet schools. The -- even if one of the purposes of those schools is to try to cause more white