137 F.Supp.2d 1224 (2001)
PARENTS INVOLVED IN COMMUNITY SCHOOLS, a Washington non-profit corporation, Plaintiff, v.
SEATTLE SCHOOL DISTRICT NO. 1, a political subdivision of the State of Washington; et al., Defendants.
No. C00-1205R.
United States District Court, W.D. Washington, at Seattle.
April 6, 2001.
1225 *1225 Harry James Franklyn Korrell, Daniel Benjamin Ritter, Davis Wright Tremaine LLP, Seattle, WA, for plaintiff.
Mark Stephen Green, Seattle School District # 1, Office of General Counsel, Seattle, WA, Carol Sue Janes, Michael Madden, Bennett Bigelow & Leedom PS, Seattle, WA, for defendants.
ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
ROTHSTEIN, District Judge.
I. BACKGROUND
For over thirty years the Seattle School District has made efforts to ameliorate the often pernicious consequences of the racial isolation in its schools that would, but for those efforts, track the racial segregation of the city's housing patterns. A majority of Seattle's white residents live in neighborhoods in the northern, historically more affluent end of the city. A majority of the city's African American, Asian American, Hispanic and Native American residents live in the south. Racial isolation in schools may render a child indifferent to the benefits and responsibilities incumbent on citizens of a pluralistic society. Racial isolation may also prevent a child from being exposed to much of the educational and socio-economic opportunity this nation promises.
Since the 1960's, while courts around the country were ordering intransigent school districts to desegregate, Seattle's school board was voluntarily exploring measures that were designed to provide all of the district's students with access to diverse and equal educational opportunities. At one time the district experimented with mandatory busing procedures that met with widespread dissatisfaction and even outrage. More recently, responding to its constituents' concerns, the school board has sought to develop less coercive policies that would afford parents and students more choice in selecting which high school to attend, while adhering to the principle that all of the district's students should have access to racially integrated schools of comparable quality. Over the past several decades, both Washington state and federal courts have, at every level, approved and even lauded the school board's continuing and evolving efforts to attain and maintain a desegregated system.
The school board has not yet achieved its ultimate goal of offering the best possible education in all of its high schools. Despite the district's efforts, it remains a stark reality that disproportionately, the schools located in the northern end of the city continue to be the most popular and prestigious, and competition for assignment to those 1226 schools is keen. The school board has decided that in order to afford all of the city's students 0907including those *1226 from predominantly minority south Seattle 0907access to these more popular schools, it must employ a tiebreaker mechanism that elevates race over proximity to determine who may attend these schools.
Since 1998, the Seattle School District has assigned students to its regular ten high schools according to an "open choice" policy, by which students throughout the district list which high school they would like to attend in

order of preference. The district will assign the student, if possible, to the high school listed as his or her first choice. Five of the district's high schools, however 0907 Ballard, Nathan Hale, Roosevelt, Franklin, and Garfield 0907 are listed as a first choice by more students than they can accept.[1] Approximately 82% of students entering high school in 2000 selected one of these five schools as a first choice. The school district allocates the available spaces in these oversubscribed high schools by using a series of tiebreakers. The first tiebreaker asks whether the student has a sibling already attending his or her first-choice school. For the stated purposes of "achieving diversity, limiting racial isolation, and providing an equal opportunity to receive a quality education," the district will, if necessary, use a second tiebreaker for those oversubscribed high schools that are racially "out of balance," selecting for placement students whose race will help mitigate the imbalance of the racial makeup of the chosen school. Defendants' Memo in Support of Partial Summary Judgment on State Law Claim at 2.
The school district has determined that a school is out of balance if it deviates by more than 15% from the overall racial breakdown of the population of students attending Seattle's public schools, which is currently approximately 40% white and 60% nonwhite.[2] Of the oversubscribed high schools, only Garfield is currently considered in balance.[3] The district estimates that without the integration tiebreaker, the nonwhite populations of the 2000-2001 ninth grade class at Franklin would be 79.2%; at Hale 30.5%; at Ballard 33%; and at Roosevelt 41.1%. Using the integration tiebreaker mechanism, the nonwhite populations of the same schools respectively are 59.5%; 40.6%; 54.2%; and 55.3%.[4] Under the plan's most recent revision, the integration tiebreaker will be turned off once the entering class is brought into racial balance, and the district will turn to the third tiebreaker, proximity of the student's home to the school of choice, or the fourth tiebreaker, a lottery, to determine the remaining placements.
Plaintiffs, a group of parents whose children were not, or may not be, assigned to a high school of their choice under the assignment plan using the racial integration tiebreaker, claim that use of the tiebreaker violates the Washington Civil Rights Act (the "Act," the "Initiative," or "Initiative 200") (codified at RCW 49.60.400), the Equal 1227 Protection Clause of the Fourteenth Amendment to the United *1227 States Constitution, and Title VI of the federal Civil Rights Act of 1964.
II. DISCUSSION
A. State Law Claim: Initiative 200
Guided by the principle that a court should avoid deciding a matter on federal constitutional grounds if state law grounds are available, the parties, in their cross motions for summary judgment, have asked the court to make an initial determination of the effect of Initiative 200 on the district's open choice policy. Plaintiffs contend that the Initiative outlaws the use of a racial tiebreaker in school assignments. Defendants argue that this provision should not be construed to outlaw the tiebreaker program, and in the alternative, that if it must be so construed, the Initiative is unconstitutional under both the Washington state and the United States constitutions.
In 1998, Washington voters passed Initiative 200, the Washington Civil Rights Act. The Act declares that state government, including local school districts, may not "discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of ... public education." RCW 49.60.400. Because the statute has not yet been interpreted by the Washington state judiciary, this court has the task of predicting how the state's highest court would apply the Act to this case. See Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967).
The court has a duty to construe Initiative 200, if possible, in a way that makes the initiative consistent with the state and federal constitutions; "where a statute is susceptible of several interpretations, some of which may render it unconstitutional, the court, without doing violence to the legislative purpose, will adopt a construction which will sustain its constitutionality if at all possible to do so." In re Cross, 99 Wash.2d 373, 382-83, 662 P.2d 828 (1983). As discussed below, applying Initiative 200 to outlaw the school district's integration plan would render the Act unconstitutional. The definitions of "preference" and "discrimination" provided in Washington and

federal case law, however, furnish a reasonable saving construction that renders a finding of unconstitutionality unnecessary.
1. Application of Initiative 200 to the Open Choice Policy Would Impermissibly Effect an Amendment to the Washington Constitution
It is an established principle under Washington law that the legislature, or the people acting in their legislative capacity, may not amend the state constitution except by a special process. As recently noted in Gerberding v. Munro, Washington courts "have often stated the initiative process, as a means by which the people can exercise directly the legislative authority to enact bills and laws, is limited in scope to subject matter which is legislative in nature.... Thus, the initiative power may not be used to amend the Constitution." 134 Wash.2d 188, 210 n. 11, 949 P.2d 1366 (1998) (citations omitted). An amendment to the constitution may be effected only "through the process for constitutional amendment articulated in Wash. Const. art. XXIII." Id. at 211, 949 P.2d 1366. If plaintiffs' construction of Initiative 200 constitutes an amendment to the Washington Constitution, the court must either fashion a reasonable saving construction or find the initiative unconstitutional.
The Washington Constitution, article IX § 1 provides, "it is the paramount duty of the state to make ample 1228 provision for the education of all children residing within its borders, without distinction or preference *1228 on
account of race, color, caste or sex." The section following states, "the legislature shall provide for a general and uniform system of public schools." Washington case law has construed the language of these two sections separately and in concert to require school districts to provide equal educational opportunity to students of all races, to limit racial isolation, and to provide a racially and ethnically diverse educational experience. The provisions have also been construed to authorize local school boards to implement race-conscious measures to effectuate this policy.
A number of Washington court cases refer to school districts' constitutionally-derived authority or duty to operate integrated schools. In Seattle Sch. Dist. No. 1 v. Washington, Judge Doran found that "[s]egregated schools are prohibited by Article IX, Section 1, of the Constitution," and that "[a] racially segregated education is inadequate to equip students, especially minority students, with basic educational skills and with the ability to participate effectively in our open political system and in the labor market." No. 81-2-1713-1, Findings of Fact and Conclusions of Law, Madden Decl., Exh. 2 at 68-69. The Washington Supreme Court has also found that it is "the duty of the school board to act in the best interests of the majority of students," even if to do so would be to the detriment of some students. Citizens Against Mandatory Bussing v. Palmason, 80 Wash.2d 445, 457, 495 P.2d 657 (1972).
That court went on to find that to limit the authority of school boards by not allowing them to take race into account in efforts to desegregate their schools "would frustrate the purpose of Const. art. 9, § 1 ... and of section 2 thereof." Palmason, 80 Wash.2d at 449, 495 P.2d 657. In that case, the Washington Supreme Court refused to authorize a referendum on the Seattle School District's race-conscious policy of transferring students to nonneighborhood schools in an effort to reduce the effect on schools of residential segregation. The court found that to do otherwise would unduly limit the district's constitutional mandate to provide equal educational opportunity to all of its students. In Dawson v. Troxel, the Washington appellate court reiterated that "in some circumstances a racial criterion may be used 0907 and indeed in some circumstances must be used 0907 by public educational institutions in bringing about racial balance." 17 Wash.App. 129, 132, 561 P.2d 694 (1977), quoting DeFunis v. Odegaard, 82 Wash.2d 11, 27, 507 P.2d 1169 (1973).[5] The Washington Constitution, therefore, imposes a duty on school boards to operate racially integrated schools, and recognizes the reality that in some cases, to fulfill that duty, a school board may need to take race into account.
Plaintiffs argue that the Washington Constitution merely grants school districts the authority to use their discretion in operating their schools, and that the legislature (or the people acting in their legislative capacity) may limit that discretion however it sees fit. They offer as an analogy that school boards would not be permitted to thwart a legislative enactment requiring all schools to offer a course in American history, or prohibiting smoking on school grounds. This analogy is flawed. Washington courts have not found that freedom not to take a course in American history, or license to smoke on school grounds, is a right conferred by the state's constitution. Access to equal

1229 educational opportunity, however, is. The authority to *1229 use race to provide "a general and uniform system of public schools," a phrase the courts have construed to mean racially integrated schools, is an authority derived directly from the Washington Constitution. An initiative effecting an amendment to this authority would be unconstitutional under Washington law.
2. Pre-Initiative 200 Meaning of "Discrimination" and "Preferential Treatment" Under Washington Law
The court need not (nor would it be permitted to) contort the language of Initiative 200 in order to give it a saving construction. Washington case law offers long-established and reasonable definitions of racial "discrimination" and "preference" which, applied to Initiative 200, exempt the school board's tiebreaker program.
Article IX § 1 of the Washington Constitution requires the state to operate public schools "without distinction or preference on account of race." At the same time, Washington state courts have consistently held that a school board's race-conscious assignment policy will not constitute a "preference" or "discrimination" when instituted to accomplish school integration. Presuming, as the court must, that Washington courts have adjudicated these matters consistent with the Washington Constitution, and specifically with article IX, the court finds that despite the fact that the school board's tiebreaker program takes race into account, case law dictates that the program does not constitute a "preference" or "discrimination" based on race under Initiative 200.
Citizens Against Mandatory Bussing v. Brooks involved a mandamus action in which a coalition asked the court to initiate a recall of school board members, charging that the "race of the students was the criterion used to determine which students in the school district would be transferred and which schools they would attend, contrary to the Constitution of the State of Washington." 80 Wash.2d 121, 126, 492 P.2d 536 (1972). Rejecting this charge, the Washington Supreme Court upheld the Seattle School District's authority to adopt measures, designed to mitigate de facto segregation, that were not required by the Fourteenth Amendment. In doing so, the court drew on Swann v. Charlotte-Mecklenburg Bd. of Educ. for the proposition that while courts are limited in their powers to impose desegregation measures, and may do so only to remedy those constitutional violations arising from a state actor's de jure segregation, school boards may exercise a wider latitude in voluntarily adopting desegregation measures. 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). The Washington Supreme Court upheld the Seattle School District's right to make race-based distinctions, and found that the district's raceconscious busing measures did not violate the Washington Constitution, including, this court must presume, article IX § 1. Article IX § 1, therefore, which outlaws preferences meted out on racial grounds, does not to apply to the school board's voluntary race-conscious efforts to integrate Seattle's high schools. Later that year the Washington Supreme Court reiterated its Brooks holding, deeming the procedure by which the school board implemented a mandatory race-based busing policy "a reasonable one, by any definition of that term." Citizens Against Mandatory Bussing v. Palmason, 80 Wash.2d 445, 451, 495 P.2d 657 (1972). Again, the finding came against the backdrop of the Washington Constitution. Five years later, as the court has already discussed, Judge Farris in Dawson v. Troxel emphasized the principle that "in some circumstances a racial criterion may be used 0907 and indeed in some circumstances must be used 0907 by public educational institutions in bringing about racial 1230 balance." 17 Wash. *1230 App. 129, 132, 561 P.2d 694 quoting DeFunis v. Odegaard, 82 Wash.2d 11, 27, 507 P.2d 1169 (1973).
3. Definitions of "Preference" and "Discrimination" Under Federal Law
Ninth Circuit precedent, which parallels Washington courts' definitions of "preference" and "discrimination," bolsters the conclusion that Initiative 200 does not apply to programs designed to overcome racially imbalanced schools. The Ninth Circuit has identified two different types of government programs that take race into account. On the one hand are "affirmative action" programs, such as those used in higher education admissions and contracting awards that use racial minority status as a positive factor, conferring a government benefit to members of a minority at the expense of those of the majority. On the other hand are measures, such as those designed to effect racially integrated public schools, that seek to ensure that a benefit, available to all, is

distributed in a manner that the governing body has decided will benefit the citizenry as a whole. As stated in Associated Gen'l Contractors of Calif. v. San Francisco Unified Sch. Dist.,
We think it is useful and necessary to distinguish between the two major types of positive governmental action taken on behalf of minorities. First, there are "reshuffle" programs, in which the state neither gives to nor withholds from anyone any benefits because of that person's group status, but rather ensures that everyone in every group enjoys the same rights in the same place. The most common examples are school desegregation cases and programs. Second, there are "stacked deck" programs, in which the state specifically favors members of minorities in competition with members of the majority for benefits that the state can give to some citizens but not to all. This category includes affirmative action programs of both the quota and "positivefactor" varieties.
616 F.2d 1381, 1386 (9th Cir.1980) (citations omitted, emphasis added).
The Ninth Circuit recently reiterated this distinction in Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997). In 1996, the voters of California ratified Proposition 209, amending the California Constitution[6] to include a provision identically worded to Initiative 200. The day after the election, a group of plaintiffs brought suit to enjoin the state from implementing the amendment. Plaintiffs argued, inter alia, that the proposition's elimination of the state's affirmative action and "preference" programs would "restructure[] the political process to disadvantage only those seeking to enact legislation intended to benefit minorities and women," C.E.E. v. Wilson, 946 F.Supp. 1480, 1499 (N.D.Cal.1996). Groups seeking to enact such programs before passage of Proposition 209 could petition the appropriate legislature; after Proposition 209, they would be forced to pass an amendment to the California Constitution. Thus, plaintiffs argued, the situation was indistinguishable from Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969) and Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982), in which the Supreme Court struck down initiatives that forced certain minority groups to petition for redress at higher, more remote levels of government.
1231 Granting the injunction, the district court defined "preference" broadly, to "include[], *1231 at a minimum, programs or policies that use racial or gender classifications." 946 F.Supp. at 1489. The district court granted the injunction in part based on a finding that "Proposition 209's reach may extend beyond mere `zero-sum' [i.e. stacked deck] antidiscrimination efforts." Id. at 1503 n. 24. The court couldn't rule out the possibility that the proposition might be construed to apply to school districts' use of measures designed to mitigate de facto racial isolation in schools, finding that "the measure could eliminate, or cause fundamental changes to, voluntary desegregation programs run by school districts." Id. at 1493-94 (some emphasis added). Thus construed, the plaintiffs had demonstrated a probability of success on their claim that the proposition was indistinguishable from the statutes the Supreme Court struck down in Seattle and Hunter, and therefore unconstitutional.
Proposition supporters, seeking to save it from constitutional infirmity, conceded on interlocutory appeal that the measure did not apply to voluntary school programs designed to ameliorate racial segregation, and was thus in fact distinguishable from the measures struck down in Hunter and Seattle. Appellants Governor Pete Wilson and Attorney General Dan Lungren stated that "the [amicus curiae] United States' claim that [Proposition 209] `generally prohibits race-conscious busing programs designed to overcome de facto school segregation' is incorrect. Busing programs do not involve preferences based on race." Appellants' Reply Brief at 10, C.E.E. v. Wilson, 122 F.3d 692, Madden Decl., Exh. 1 (emphasis added).
The Ninth Circuit agreed. In vacating the district court's preliminary injunction, the court emphasized, in a footnote critical to the case's holding, that the district court erred in failing to distinguish school desegregation "reshuffling" programs from other affirmative action programs. The court reiterated the distinction made in Associated Gen'l Contractors and went on to add, "[u]nlike racial preference programs, school desegregation programs are not inherently invidious, do not work wholly to the benefit of certain members of one group and correspondingly to the harm of certain members of another group, and do not deprive citizens of rights." C.E.E. v. Wilson, 122 F.3d at 708 n. 16.[7]

Furthermore, a constitutionally-infirm contract procurement or university admissions policy grants preference only to non-whites. The program at issue here falls indiscriminately on whites and nonwhites alike, ensuring a racially integrated system for the benefit of the school district as a whole. Even while the program allows minority students access to Ballard and Hale, Seattle's popular predominantly white schools, it also allows white students access to Franklin, the city's popular predominantly minority school. It is in this sense, too, that the program is not a "preference."

As the Washington Supreme Court has observed,

1232

School authorities are traditionally charged with 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 that 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 within *1232 the broad discretionary powers of school authorities.

Brooks, 80 Wash.2d at 128, 492 P.2d 536, quoting Swann, 402 U.S. at 16, 91 S.Ct. 1267. In fulfilling its constitutional mandate, the school board has found that it cannot provide an equitable and diverse educational opportunity to the district as a whole without depriving some students of access to their first choice. This is a proper exercise of the school board's discretion with which the courts may not interfere. As the Palmason court said, "the [members of a school board have a] duty ... to act in the best interests of the majority of students; and the fact that some students might suffer adverse effects was not a consideration which, in law, they were required to find controlling." 80 Wash.2d at 457, 495 P.2d 657.

It may be said, as plaintiffs do, that nonwhite children given spots at Nathan Hale and Ballard, or white children given spots at Franklin, are being granted a "preference" in common parlance. The term "preference," however, as used in the Washington Constitution and defined in state and federal law, and therefore necessarily as used in Initiative 200, has acquired a legally fixed meaning derived from dozens of years of race discrimination jurisprudence. Under that definition, the school board's program is not a preference.

B. Federal Claim: the Equal Protection Clause

The parties do not dispute that because the district's open choice policy relies on racial classifications, the court must use strict scrutiny to analyze the plan's constitutionality. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 225-26, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). To survive strict scrutiny, the plan must 1) serve a compelling government interest and 2) be narrowly tailored to do so. Id. at 227, 115 S.Ct. 2097.
1. Compelling Interest

During one of its recent executive sessions, the school board issued the following "Board Statement Reaffirming Diversity Rationale:"
Diversity in the classroom increases the likelihood that students will discuss racial or ethnic issues and be more likely to socialize with people of different races. Diversity is thus a valuable resource for teaching students to become citizens in a multi-racial/multi-ethnic world.
Providing students the opportunity to attend schools with diverse student enrollment also has inherent educational value from the standpoint of education's role in a democratic society.... Diversity brings different viewpoints and experiences to classroom discussions and thereby enhances the educational process. It also fosters racial and cultural understanding, which is particularly important in a racially and culturally diverse society such as ours.
Based on the foregoing rationale, the Seattle School District's commitment is that no student should be required to attend a racially concentrated school. The District is also committed to providing students with the opportunity to voluntarily choose to attend a school to promote

integration. The District provides these opportunities for students to attend a racially and ethnically diverse school, and to assist in the voluntary integration of a school, because it believes that providing a diverse learning environment is educationally beneficial for all students.
Minutes of Executive Session of the Board of Directors, November 17, 1999, Taylor Decl., Exh. 3 at 12.
There is no evidence, nor do plaintiffs claim, that the school board adopted the plan for any other reason than as 1233 stated *1233 above. Thus, succinctly stated, the board's purpose in adopting its current open choice policy is to
mitigate the historical effects on its high schools of the residential segregation of Seattle's neighborhoods, and to allow all students the opportunity to benefit from the pedagogical and socio-cultural values a racially diverse school offers. The court must evaluate against the backdrop of existing legal precedent whether this interest is compelling.
a. The School Board has Authority to Cure De Facto Segregation
Plaintiffs argue that the integration-positive tiebreaker does not serve a compelling interest. Plaintiffs claim first that the Supreme Court has foreclosed the possibility that a government actor can use race for any reason other than to remedy past acts of de jure discrimination, citing the Court's holding in City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989). Croson found that the only justification for Richmond's use of racial quotas in the city's contract procurement process would be a showing that racial quotas were necessary to remediate the effects of past discrimination by the city. As the Second Circuit has pointed out, however, "Croson does not reach the issue of whether a nonremedial purpose could constitute a compelling government interest, because the classification at issue in Croson was only defended as necessary to remedy past discrimination." Brewer v. West Irondequoit Cent. Sch. Dist., 212 F.3d 738, 748 (2nd Cir.2000). Croson's holding, therefore, cannot be extended to address the question currently before the court, for the school board does not claim that the tiebreaker is meant to remedy past de jure discrimination, but to cultivate diversity and enhance the educational opportunity available to all its students by achieving an integrated system.
Plaintiffs claim that similarly, the Supreme Court in Wygant v. Board Of Educ., when evaluating a school board's use of a race-based layoff program designed to increase the minority faculty presence, indicated that the Equal Protection Clause required "some showing of prior discrimination by the governmental unit involved," 476 U.S. 267, 276, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986)(plurality opinion). In her concurring opinion, however, Justice O'Connor clarified that "certainly nothing the Court has said today necessarily forecloses the possibility that the Court will find other governmental interests which have been relied upon in the lower courts but which have not been passed on here to be sufficiently ... `compelling' to sustain the use of affirmative action policies." Id. at 286, 106 S.Ct. 1842 (O'Connor, J., concurring).
The Second Circuit has gone so far as to explicitly reject application of the reasoning of Croson and Wygant to the school desegregation context.
Neither case ... involved desegregation of a student population in the public school system, a goal that we may assume at this point in the proceedings is more compelling than reduction of racial isolation or underrepresentation in the commercial context [of] teachers' jobs and the construction industry at issue in Wygant and Croson. Further, the danger identified by the Supreme Court as inherent in non-remedial based programs, see Croson, 488 U.S. at 498, 109 S.Ct. 706 ("a generalized assertion that there has been past discrimination in an entire industry provides no guidance for a legislative body to determine the precise scope of the injury it seeks to remedy"), is not present when a local school board acts to remedy clearly identifiable, indeed obvious, racial isolation in particular school districts.
1234 *1234 Brewer, 212 F.3d at 751 (some citations omitted). The Brewer court's analysis supports the conclusion that the Croson line of cases does not control the question currently before the court.
Absent a Supreme Court or Ninth Circuit[8] holding that a government entity must establish past de jure discrimination to justify the use of race in this context, then, the court must evaluate whether promoting racial

integration may be a compelling government reason for using race in secondary school assignment plans. While plaintiffs have argued that Supreme Court cases have foreclosed this possibility, the court finds, to the contrary, that the Supreme Court has long suggested quite the reverse:
School authorities are traditionally charged with 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 of the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities.
Swann v. Charlotte-Mecklenburg Bd. Of Educ., 402 U.S. 1, 16, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). The Supreme Court clarified that Swann was not merely intended to apply to situations in which there had been a constitutional violation, when it declared in a companion case that "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." North Carolina Bd. of Educ. v. Swann, 402 U.S. 43, 45, 91 S.Ct. 1284, 28 L.Ed.2d 586 (1971). A number of other Supreme Court cases declare the same principles. In Washington v. Seattle Sch. Dist. No. 1, the Supreme Court reinstated the authority of the Seattle School District to bus students to help cure de facto racial imbalance, arising where "segregated housing patterns ... created racially imbalanced schools." 458 U.S. 457, 460, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982). In his concurring opinion in Keyes v. School Dist. No. 1, Justice Powell declared, "[s]chool boards would, of course, be free to develop and initiate further plans to promote school desegregation.... Nothing in this opinion is meant to discourage school boards from exceeding minimal constitutional standards in promoting the values of an integrated school experience." 413 U.S. 189, 242, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973). In Bustop, Inc. v. Board of Educ., plaintiffs asked the federal courts to stay an order issued by the California Supreme Court that would have implemented a race-based desegregation plan. Then-Justice Rehnquist wrote,
[plaintiffs'] argument is indeed novel, and suggests that each citizen ... has a `federal right' to be `free from racial quotas....' While I have the gravest doubts that the Supreme Court of California was required by the United States Constitution to take the action that it has taken in this case, I have very little doubt that it was permitted by that Constitution to take such action.
1235 439 U.S. 1380, 1381, 99 S.Ct. 40, 58 L.Ed.2d 88 (1978). Thus, the Supreme *1235 Court has repeatedly recognized the authority of school boards, (while repudiating that of courts), to take measures to integrate de facto segregated districts beyond what the Constitution requires.[9]
The circumstances that gave rise to the court-approved school assignment policies of the 1970's continue to be as compelling today as they were in the days of the district's mandatory busing programs. As the federal district court found in Seattle School Dist. No. 1 v. State, later upheld by the Supreme Court, "segregated housing patterns exist in the City of Seattle. These housing patterns result in racially imbalanced schools when a neighborhood school assignment policy is implemented." 473 F.Supp. 996 (W.D.Wash.1979). The defendants have established that housing patterns in Seattle continue to be racially concentrated. See Lewis Second Supplemental Declaration, Exh. A-1. Absent a Supreme Court or Ninth Circuit directive on point, it would defy logic for this court to find that the less intrusive programs of today violate the Equal Protection Clause while the more coercive programs of the 1970's did not.
b. Seattle School District's Diversity Interest
Plaintiffs claim that defendants' tiebreaker uses race, and only race, in moving towards its diversity goal. Therefore, plaintiffs argue, the district's asserted diversity interest is not compelling because Justice Powell's opinion in Bakke sanctioned the use of race to create a diverse educational environment only if it were one criterion among several. Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). Plaintiffs cite Justice Powell's distinction between racial or ethnic diversity and "genuine diversity," which would include a whole range of factors, and his observation that a "special admission program

[that focuses] solely on ethnic diversity would hinder rather than further attainment of genuine diversity." Id. at 315, 98 S.Ct. 2733.
Bakke's limit on the exclusive use of race to create a diverse environment does not speak to the question before the court. As the Second Circuit has found, "Bakke ... is not directly on point as it expressed no opinion as to the compelling interest of reducing racial isolation in elementary public school education." Brewer, 212 F.3d at 751. Interests asserted at the higher education level carry much different implications than those asserted at the elementary and secondary school level. This difference arises because, as the Supreme Court has recognized, "[e]ducation has come to be a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him adjust normally to his environment." Seattle Sch. Dist. No.1, 458 U.S. at 472-73, 102 S.Ct. 3187. Justice Powell's observations therefore do not apply as forcefully in the earlier stages of a child's education.
Achieving racial diversity and mitigating the effects of de facto residential segregation are, the court finds, compelling government interests as a matter of law. In deference to the authority vested in the school district under the Washington Constitution, the court will ask only whether the board had a sufficient basis for adopting a 1236 plan to achieve a goal found to be *1236 compelling as a matter of law.[10]See Wygant, 476 U.S. at 277-78, 106 S.Ct. 1842.
Plaintiffs claim that "diversity" as a goal must be more than an attractive generality. See Wessmann v. Gittens, 160 F.3d 790, 800 (1st Cir.1998). The school board, through its expert Dr. Trent, identifies four discrete reasons why racial balance at the high school level is important:
[1.] Opportunity and achievement. The research shows that a desegregated educational experience opens opportunity networks in the areas of higher education and employment, particularly for minority students, which do not develop when students attend less integrated schools....
[2.] Teaching and learning. The research shows that academic achievement of minority students improves when they are educated in a desegregated school, likely because they have access to better teachers and more advanced curriculum. The research also shows that both white and minority students experienced improved critical thinking skills 0907 the ability to both understand and challenge views which are different from their own 0907 when they are educated in racially diverse schools.
[3.] Civic values. The research clearly and consistently shows that, for both white and minority students, a diverse educational experience results in improvement in race-relations, the reduction of prejudicial attitudes, and the achievement of a more democratic and inclusive experience for all citizens.... Recent research has identified the critical role of early school experiences in breaking down racial and cultural stereotypes....
[4.] Employment. Research ... shows that, as a group, minority students who exited desegregated high schools were more likely to be employed in a racially diverse workplace, obtained more prestigious jobs than those who did not, and that their jobs tended to be higher paying than those students who did not attend desegregated schools.
Trent Decl. ¶ 4.
Although Dr. Armour, plaintiffs' expert, takes issue with many of the conclusions of defendants' expert, his contravening testimony fails to cast doubt on the fact that the school board had a sufficient basis for believing diversity and integration were important goals. Indeed, Dr. Armour concedes that "[t]here is general agreement by both experts and the general public that integration is a desirable policy goal mainly for the social benefit of increased information and understanding about the cultural and social differences among the various racial and ethnic groups." Armor Dep. at 23-24, Madden Decl., Exh. 1. The court finds, given the testimony of both parties' experts, that as a matter of law defendants have established that they had a sufficient basis for implementing the

integration-positive tiebreaker for the actual purpose of achieving diversity and reducing the effects of de facto segregation in the Seattle School District.
2. Narrowly Tailored

1237 Defendants have established that their race-conscious policy was implemented to *1237 further a compelling interest. Plaintiffs argue that defendants' open choice plan, which at some point in the assignment process takes only race into account, is mere "racial balancing" and as such cannot, as a matter of law, be narrowly tailored to serve a compelling government interest. As support for this proposition plaintiffs cite Eisenberg v. Montgomery County Public Schools, 197 F.3d 123 (4th Cir.1999); Tuttle v. Arlington County. Sch. Bd., 195 F.3d 698 (4th Cir.1999); and Wessmann v. Gittens, 160 F.3d 790. In each of these cases, the defendants used race-conscious integration programs that sought to achieve a racial balance that reflected the overall demographic of the district. The defendants asserted a compelling interest in fostering diversity in their schools. The appellate courts rejected this interest because the "racial balancing" programs were designed to achieve only racial diversity, as opposed to the "genuine diversity" sanctioned by Justice Powell in Bakke. The programs were not, therefore, permitted by the Fourteenth Amendment. Relying on these holdings, plaintiffs here argue that the only diversity the tiebreaker mechanism promotes is racial diversity, and as such is indistinguishable from the "racial balancing" that the courts in Tuttle, Eisenberg, and Wessmann found unconstitutional.[11]

The court finds, however, that defendants' interest here is not only to promote diversity for educational and social value; they have also established that they seek to ameliorate the de facto effects of residential segregation in Seattle. It is uncontroverted that 74% of Asian American students, 84% of African American students, 65% of Hispanic students, and 51% of Native American students live south of a line somewhere slightly north of the downtown area. See Lewis Sec. Supp. Decl., Exh. A-1. As defendants point out, this demographic distribution strongly suggests that were geography alone to determine school assignment, the district would be highly segregated into white and nonwhite schools. Id. Were the school district to stop taking race into account in its school assignment policy, it seems inevitable that the district's schools, over the course of the next few years, would revert to their pre-existing "natural state" of racial segregation.

Preventing the re-segregation of Seattle's schools is, as discussed above, a compelling interest. The Second Circuit has highlighted the error in modeling a narrow tailoring analysis on a "diversity" rationale alone in cases in which a district has asserted a legitimate and compelling desegregation rationale:

1238

We recognize that [in enjoining the school district's use of race in its transfer policy] the District Court did conduct a narrow tailoring analysis. We believe, however, that it focused on the wrong question: the District Court asked whether the Program is narrowly tailored to achieve the goal of "true diversity," when the appropriate inquiry, as evident from our discussion in the preceding sections, is whether the Program is narrowly tailored to achieve its primary goal of reducing racial isolation resulting from de facto segregation. The difference in these two frameworks is not mere semantics. If reducing racial isolation is standing alone a constitutionally permissible goal, as we have *1238 held it is ... then there is no more effective means of achieving that goal than to base decisions on race. "True diversity," on the other hand, may certainly be defined more broadly than race. See Bakke, 438 U.S. at 315, 98 S.Ct. 2733. Indeed, the cases cited by the District Court in support of its decision that the use of race alone in the Program was not narrowly tailored, ... Wessmann, Bakke, and Hopwood [], only address the efficacy of employing strictly racial classifications to achieve "true diversity." Those decisions are, therefore, inapplicable to the present situation where the Program's aim, as initially found by the District Court and affirmed by this Court today, is precisely to ameliorate racial isolation in the participating districts.

212 F.3d at 752-53 (some citations omitted). Thus the Second Circuit has pointed out the error of relying on Wessmann and its progeny for the proposition that exclusive reliance on race in a school assignment plan 0907 "racial balancing" 0907 is not narrowly tailored to achieve diversity in school assignments. Those cases misapprehended the importance of the other interest asserted here, integration of a de facto segregated system, on the narrow tailoring analysis. It bears repeating that the Second Circuit found that "[i]f reducing racial isolation

is standing alone a constitutionally permissible goal, as we have held it is ... then there is no more effective means of achieving that goal than to base decisions on race."
This court agrees with the Second Circuit that the Wessmann line of cases misconstrued Supreme Court directives regarding the proper deference a court should grant to a local school board's authority to ameliorate the effects of de facto segregation. In Brewer, the Second Circuit addressed the Wessmann court's reasoning:
In rejecting the [defendant] Boston Latin School's argument that it was attempting to alleviate vestiges of past discrimination, Wessmann relies, we think wrongly, on Supreme Court precedent which holds merely that absent a finding of a constitutional violation, a school district is under no obligation, enforceable by a federal court, to remedy the imbalance. The absence of a duty sheds little light on the constitutionality of a voluntary attempt.
212 F.3d at 751 (citations omitted, emphasis added). The Brewer analysis of Wessmann applies equally to Tuttle and Eisenberg.
The school district contends that to further its interest of providing racially diverse schools and mitigating the effects of racial segregation, it must take race into account. This conclusion is fully grounded in reason and supported by the parties' experts. As plaintiffs' expert has conceded, "if you don't consider race, it may not be possible to offer an integrated option to students." Armor Dep. at 60, Madden Decl., Exh. 1.
None of plaintiffs' other criticisms of the open choice policy call into doubt defendants' assertion that it is narrowly tailored. Plaintiffs claim there is no "end point," or "sunset provision," but the integration-positive tiebreaker applies only to schools deemed out of balance. Once a school is considered in balance (as is Garfield), the board will abandon the use of race in its assignments to that school. In addition, under the newly-revised plan, the district switches off the racial tiebreaker as soon as an entering class comes into balance, and will not use race to assign the remaining spaces in that school.
The plan does not mandate a specific racial quota. Instead, the plan uses the 60/40 ratio as a floor, and allows a 1239 significant 15% deviation from those numbers *1239 before it will take race into account. This mechanism is
designed to prevent the city's segregated housing patterns from totally dictating the racial makeup of the district's popular schools. While the board has considered adopting a deviation of 20%, that option was rejected because it would have left "only one, and possibly ... no" high schools out of balance, rendering the integration plan virtually ineffectual. Schaad-Lamphere Dep. at 86-87, Madden Decl., Exh. 2.
The school district has a demonstrated history of reducing the use of race in its assignment plans, as the mandatory busing plans of the 1970's have given way to the more choice-oriented plans of the 1990's and of this century. Preston Dep. at 83-85., Madden Decl., Exh. 3. Indeed, the school district recently revised a number of facets of the open choice policy in November 2000, increasing the allowable deviation from the 60/40 ratio from 10% to 15%; adopting the "off-switch" for the tiebreaker once an entering class comes into balance; and limiting application of the tiebreaker to students entering ninth grade. These changes are further evidence that the board is responsive to its constituency and will, where feasible, consider alternatives that are less burdensome.[12] The school district has a demonstrated history of, and concrete plans for, revisiting the necessity of the use of race on a frequent and regular basis. In particular, defendants claim that in the future, the school board hopes to achieve and maintain diversity through entirely voluntary measures, by developing programs and making renovations designed to attract a broad array of students to all of its high schools.
Finally, as the court has observed, the defendants' policy is a "deck-shuffle" as defined by the Ninth Circuit, and as such does not, strictly speaking, prefer one race over any other. All children in the district are subject to the plan, and children of all races may attend at least one of the district's popular schools. At the same time, the plan maximizes the effect students' choices have on their assignments. These facts render the open choice policy in stark contrast to the court-sanctioned mandatory busing plans of earlier decades.
Defendants have presented sufficient evidence that a less burdensome plan would not, at this time, produce the degree of integration necessary to achieve their goals. The court finds therefore that defendants have established that their plan is narrowly tailored to further the compelling interests asserted in this case.

III. CONCLUSION
The court's ruling recognizes that even as the Seattle School District works to improve the programs and facilities at the weaker schools, it must be allowed to provide all of Seattle's students the equal opportunity, as the Washington Constitution mandates, to attend the city's more popular schools. It may be true that the school board's measures cause dissatisfaction to some. Many of the south-end schools continue to offer less attractive programming and facilities, and as this lawsuit highlights, some students will not be allowed to attend the high school of their choice. It is within the board's discretion, however, as to how best it may achieve its legitimate and constitutionally-derived mandate.
1240 *1240 Because applying Initiative 200 to outlaw the Seattle School District's racial tiebreaker would render the Act unconstitutional, and because both Washington and federal law provide long-established and reasonable bases for a saving construction, the court holds that Initiative 200 does not prohibit the district's continued use of the open choice policy's integration tiebreaker. Defendants' motion for partial summary judgment on plaintiffs' state law claims is therefore GRANTED. Plaintiffs' cross motion for partial summary judgment on the same question is DENIED.
The court also finds that defendants' use of race in its open choice policy tiebreaker serves a compelling government interest and is narrowly tailored to do so. Defendants' motions for summary judgment on plaintiffs' federal law claims are therefore GRANTED. Plaintiffs' motion for summary judgment on the same is DENIED.
[1] Fewer than 20% of the district's students listed one of the five remaining high schools 0907 Cleveland, West Seattle, Sealth, Rainier Beach and Ingraham 0907 as a first choice. As a result, a student wishing to attend one of these schools will in all likelihood be given his or her first choice.
[2] In November 2000, the district adopted the 15% variance policy. For assignments made for the 1999-2000 school year, the district was still using a 10% variance to measure racial balance.
[3] Under the new 15% band, Roosevelt will no longer be out of balance.
[4] Eighty-nine more white students were assigned to Franklin than would have been absent the tiebreaker; 82 more nonwhite students to Roosevelt; 107 more nonwhite students to Ballard, and 27 more nonwhite students to Hale.
[5] DeFunis analyzed to what extent the state could use race-conscious measures under the Fourteenth Amendment, and the quotation refers in the DeFunis context to situations in which de jure segregation had occurred in the past. Dawson, however, did not limit its use of the DeFunis principle to that context.
[6] Whether Proposition 209 effected an amendment to the California Constitution was not at issue in C.E.E. for, unlike Initiative 200, Proposition 209 evidently amended its state's constitution according to proper constitutional procedure.
[7] The court accepts plaintiffs' assertion that students denied their choice of schools are deprived of curriculum advantages not necessarily available at other schools. However, maintaining a diversified school system is a step towards ensuring equal quality throughout the district.
[8] Plaintiffs cite Ho v. San Francisco Unified Sch. Dist. for the proposition that "[t]he perilous undertaking of employing race as a remedy must be justified by the defendants as alleviating a violation of the Constitution." 147 F.3d 854, 865 (9th Cir.1998). In that case, however, defendants did not proffer diversity as the interest in using race in the school board's assignment plan, relying instead on continuing adherence to a fifteen-year-old consent decree that had been entered into in an effort to reduce the effects of segregation. The Ninth Circuit's admonition in Ho is, therefore, highly case-specific.
[9] As discussed above, the Seattle School District operates under authority granted by the Washington Constitution. Washington state courts have long held that a school district has authority under state law to take

race into account in order to maximize its students' educational opportunities. See, e.g., Citizens Against Mandatory Bussing v. Brooks, 80 Wash.2d 121, 492 P.2d 536 (1972); Citizens Against Mandatory Bussing v. Palmason, 80 Wash.2d 445, 495 P.2d 657 (1972).
[10] Plaintiffs cite Ho for the proposition that the burden of justifying use of race in the school plan falls on defendants: "Once the plaintiffs established the School District's use of racial classifications ... the School District has the duty to justify them." 147 F.3d at 865. This language does not, however, shift the ultimate burden of proof to defendants. According to standard Equal Protection methodology, once a defendant has asserted a compelling government interest, the burden of proving a constitutional violation returns to plaintiffs. See Wygant, 476 U.S. at 277-78, 106 S.Ct. 1842.
[11] It is axiomatic that these cases are not binding precedent in the Ninth Circuit. This circuit has been more circumspect on the subject of "racial balancing," upholding a school board's right to maintain a race-based layoff plan for the purpose of reflecting the racial demographic of the district, and finding that "[t]he school district is not precluded from taking voluntary action to obtain better racial balance in its teaching faculty." Zaslawsky v. Board of Educ., 610 F.2d 661, 664 (9th Cir.1979).
[12] Plaintiffs ask the court for a declaratory judgment that the plan before these changes were made was also unconstitutional. The court finds that since the district has abandoned that plan with no indication it intends to return to it, that plan is not currently an issue before the court.
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 Case 2:00-cv-01205-BJR Document 129 Filed 01/12/09 Page 1 of 21

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

7

AT SEATTLE

8

9 PARENTS INVOLVED IN COMMUNITY
10 SCHOOLS, a Washington Nonprofit Corp.,

11

Plaintiff,

12 v.
13 SEATTLE SCHOOL DIST. NO. 1, a political
14 subdivision of the State of Washington, et al.

No. 2:00-cv-01205-BJR
ORDER VACATING JUDGMENT IN FAVOR OF DEFENDANT AND GRANTING JUDGMENT IN FAVOR OF PLAINTIFF

15

Defendants.

16

17

This matter comes before the cour t pursuant to Plaintiff Parents Invo lved in Community

18 Schools’ (“PICS”) Motion for Entry of Judgm ent, and Defendant Seattle Sc hool District No. 1' s

19 (the “District”) Cross Motion for Dismissal.

20

I. BACKGROUND

21 A. The School District’s Plan—The Racial Tiebreaker
22

In 1997, the District adopted an admissions pl an that allowed inco ming ninth graders to 23

24 request assignment to any of the District’s ten regular public high schools, ranking the schools in

25 order of preference. If a particular high school was oversubscribed, the District employed a series

of “tiebreakers” to de termine which students would be gr anted adm ission. The first tiebreaker

1 ORDER

Case 2:00-cv-01205-BJR Document 129 Filed 01/12/09 Page 2 of 21

gave preference to students with a sibling curren tly enrolled in the chosen school. The second 1 2 tiebreaker gave preference to stud ents whose race would help brin g the schoo l within 10 3 percentage points of the District’s overall white/nonwhite raci al balance. The final tiebreaker

4 was the geographical proxim ity of the schoo l to the stu dent’s res idence. I t is the se cond

5 tiebreaker that became the subject of this lawsuit (hereinafter, “the racial tiebreaker”).

6

B. Challenge to the Legality of the Racial Tiebreaker

7 PICS, an organization of Seattle p arents oppo sed to the use of th e racial tiebreaker,
8

brought this action in 2000, alleging that the District’s admissions schem e violated (1) 9

10 Washington Civil Rights Act, W ash. Rev. C ode § 49.60.400 (1998) (“Initiative 200"); (2) the

11 Equal Protection Clause of the Fourteenth Amendment to the United States Constitu tion, and (3)

12 Title VI of the f ederal Civil Rights Act of 1964. The Distric t def ended its use of the rac ial

13 tiebreaker.
14 This court granted summary judgment in favor of the District in 2001, concluding that the
15 admissions plan was perm issible under federal law, because it was narrowly tailo red to serve a
16 17 compelling governm ent interest, i.e., the twin goals of having a di verse student body and
18 ameliorating the de facto effects of residen tial segregation in Seattle. This court also determ ined

19 that Initiative 200 did not prohib it use of the racial tiebreaker . Parents Involve d in Comm unity

20 Schools v. Seattle School District No. 1, et al. , 137 F. Supp. 2d 1224 (2001). PICS appealed, and
21 the 9 th Circuit Court of App eals reversed, enjoining use of the rac ial tiebreaker b ased on its 22
interpretation of Initiative 200. Parents Invo lved in Community Schools v. Seattle School 23
District No. 1, et al. , 285 F.3d 1236, 1257 (9 th Cir. 2002). The District suspended use of the 24 25 racial tiebreaker at this point. The 9 th Circu it su bsequently vacated its injunction, w ithdrew its
opinion, and certified the issue of the interpreta tion of state law to the W ashington Suprem e

2 ORDER

Case 2:00-cv-01205-BJR Document 129 Filed 01/12/09 Page 3 of 21

Court. Parents Involved in Community Schools v. Seattle School District No. 1, et al. , 294 F.3d 1 2 1084-85 (9 th Cir. 2002). The District, however, volun tarily continued its suspension of the
3 admissions plan em ploying the racial tiebreaker, and did not use it for the 2002-2003, or any

4 subsequent, admissions cycle.

5

The W ashington Suprem e Court ruled in 200 3 that Initiative 200 did not prohibit the

6 District from using the racial ti ebreaker to allocate spots in oversubscribed high schools. Parents
7 Involved in Community Schools v. Seattl e School District No. 1, et al. , 149 W ash. 2d 660, 72
8 P.3d 151 (2003). The Washington Supreme Court returned the case to the 9th Circuit for a review
9
10 of claims based on federal law. A three-judge panel of the 9 th Circuit held that achieving racial

11 diversity and avoiding racial isolation were comp elling government interests, but concluded that

12 the racial tiebreaker was not suffi ciently narr owly tailo red to achiev e those goa ls. Parents

13 Involved in Community Schools v. Seattle School District No. 1, et al., 377 F.3d 949 (2005). The
14 9th Circuit granted rehearing en banc, Parents Involved in Community Schools v. Seattle School 15
District No. 1, et al., 395 F.3d 1168 (2005), and the en banc court overruled the panel’s decision, 16 17 affirming this court’s grant of summ ary judg ment. Parents Involved in Community Schools v.
18 Seattle School District No. 1, et al., 426 F.3d 1162 (2005).

19

C. The Supreme Court Opinion

20

The Supreme Court of the United States g ranted certiorari in th is cas e, and in a 6 th

21 Circuit case that also involved a challeng e to a race-b ased student assignm ent plan. 1 Parents
22 Involved in Community Schools v. Seattl e School District No. 1, et al. , 547 U.S. 1177 (2006).
23 The Supreme Court held, in a lengthy 5-4 decision, that the race-based a ssignment plan at issue
24
25 in each of these cases was unconstitutional. Pare nts Involved in Community Schools v. Seattle

1 McFarland v. Jefferson Cty. Public Schools, 416 F.3d 513 (2005).

3 ORDER

Case 2:00-cv-01205-BJR Document 129 Filed 01/12/09 Page 4 of 21

School District No. 1, et al. , 127 S. Ct. 2738 (2007) (hereinafter, “P arents”). Chief Justice 1 2 Roberts authored the m ain opini on, writing in part for a plural ity of the Chief Justice, and 3 Justices Scalia, Thomas and Alito, and in part for a majority of five justices that included Justice

4 Kennedy. Justice Kennedy filed a separate opinion concurring in part and concurring in the

5 judgment. Justice Thomas filed a concurring opinion. Justice Brey er filed a dissenting opinion,

6 which was joined by J ustices Stev ens, Souter and Ginsberg. Justice S tevens filed a separate
7 dissenting opinion.
8 1. The Main Opinion
9

10

As a thresh old matter, a m ajority of the Justic es flatly rejected th e District’s contention

11 that PICS lacked standing to maintain this action. First, the Court rejected the District’s argument

12 that the harm asserted by PICS was too specula tive. The District had argued th at even if it

13 reinstated the racial tiebreaker, PICS' m embers would be affected only in the narrowest of
14 circumstances—if a child of a m ember sought to enroll in an oversubsc ribed high school that
15 none of his or her siblings atte nded and that happened to be out of racial balance. Parents, 127 S.
16 17 Ct. at 2751. The Court found this argum ent to be unavailing, noting that any of PICS’ m embers
18 could claim a valid injury simply from being forced to compete for a child’s admission in a race-

19 based system that m ight prejudice them . Id. Second, the Court did not ag ree with the District’s

20 assertion th at PICS lacked standin g to contest the legality of the racial tieb reaker because th e
21 District voluntarily had aba ndoned the use of the policy. Id. The Court was unpersuaded by the 22
District’s continued suspension of the racial tiebreaker, in light of the Distr ict’s prac tice o f 23
“vigorously defend[ing] the cons titutionality of its race-based program, and [the lack of a 24 25 suggestion] that if this litig ation is resolved in its favor it will not resume using race to assig n
students.” Id.

4 ORDER

Case 2:00-cv-01205-BJR Document 129 Filed 01/12/09 Page 5 of 21

Moving on to the m erits, Chief Justice Roberts , writing f or the m ajority, applied strict 1 2 scrutiny to determ ine whether the use of indivi dual racial classifications in this case was 3 sufficiently narrowly tailored to achieve a com pelling government interest. Id. at 2752. Justice

4 Roberts outlined two interests that the Supreme Court had previously identified as compelling in

5 the context of evaluating the use of racial clas sifications in the school adm issions. The first,

6 which was clearly inapp licable to this case, was that of remedying the effects of past intentional

7 discrimination. Id. at 2752. The second compelling intere
8

st was creating diversity in the

educational context, which the Suprem e Court upheld in Grutter v. Bollinger , 539 U.S. 306, 328 9

10 (2003). Justice Roberts, still writing for a majority, noted that Grutter was limited to the conte xt

11 of higher educati on. In Grutter , Justice Roberts explained, the cla ssification of students by rac e

12 was used “as part of a broader effort to achie ve ‘exposure to widely diverse people, cultures,

13 ideas and viewpoints.’” Id. at 2753, quoting Grutter , 539 U.S. at 330. Further, the C ourt held, in

14 Grutter, there had been “consideration of a ‘far broader array of qualifications and characteristics

15 of which racial or ethnic origin is but
16

a single though im portant elem ent.’” Id. at 2753,

17 discussing Grutter , 539 U.S. at 325, quoting R egents of the University of Calif ornia v. Bakke ,

18 438 U.S. 265, 315 (1978). The District, in contrast, used race as a “decisi ve” admissions factor

19 for some students. Justice Roberts went on to d eclare, now only for a plurality of the justices,

20 that racial balancing was not a compelling governmental interest such that it could justify the use
21 of race in school adm issions. Here, Justice Ke nnedy parted com pany with the p lurality. See 22
Section I(C)(2), below. 23
A majority of the Court, Justic e Kennedy join ing, agreed th at the Dis trict failed to s how 24 25 that the racial tiebreak er was sufficiently narrowly tailored to achieve the proffered goal of
student diversity. Id. at 2759. To the contrary, the Court reasoned, the m inimal effect these

5 ORDER

Case 2:00-cv-01205-BJR Document 129 Filed 01/12/09 Page 6 of 21

classifications actually had on stud ent assignments suggested that non-race b ased means would 1 2 have been just as effective. Id. Justice Roberts explained that th e District’s failure to consider 3 any race-neutral alternatives proved that the racial tiebreaker was not narrowly tailored enough

4 to achiev e the District’s goal. Id. at 2760. The final portion of the opinion authored by Chie f

5 Justice Roberts is a response by the plurality to Justice Breyer’s lengthy dissent.

6

2. Concurrences

7 Justice Thomas joined in the Chief Justice’s opinion in its e ntirety, but wrote sep arately
8

to address J ustice Breyer’s dis sent. Justice Kennedy concurred in part, and concurred in the 9

10 judgment, helping to create a m ajority holding that strict scruti ny was the appropriate analysis,

11 and that the racial tieb reaker was not sufficientl y narrowly tailored to m eet that standard. Id. at

12 2789 (Kennedy, J., concurring). Indeed, in his c oncurrence, Justice Kennedy characterized the

13 racial tieb reaker as a “m echanical for mula” based on “a crude system of individual racial

14 classifications,” and noted that the Distr ict ha d f ailed to show that s uch cla ssifications wer e

15 necessary to the District’s stated purpose of promoting educational diversity. Id. at 2792-94.
16

17

However, Justic e Kennedy strong ly disagr eed with the p lurality to the exten t that it

18 refused to a ccept the ac hievement of racia l d iversity to be a com pelling educa tional inte rest.

19 Justice Kennedy found the plurality to be “too di smissive of the legitim ate interest governm ent

20 has in ensuring all people have equal oppor tunity regardless of their race.” Id. at 2791.
21 According to Justice Kennedy, Justice Roberts wa s “profoundly m istaken” in thinking that the 22
Constitution required s tate and loc al officials to “accept the status qu o of racial isola tion in 23
schools.” Id. To the contrary, Justice Kennedy explai ned that “[t]his Nation has a m oral and 24 25 ethical obligation to f ulfill its h istoric commitment to c reating an integra ted society that ensures
equal opportunity for all of its children.” Id. at 2797. Therefore, Justice Kennedy concluded that

6 ORDER

Case 2:00-cv-01205-BJR Document 129 Filed 01/12/09 Page 7 of 21

“a district m ay consider it a co mpelling in terest to a chieve a diverse student population” and 1 2 “avoid racial isolation.” Id. To achieve these ends, Justice Ke nnedy wrote, a district could adopt 3 measures meant to increase di versity, of which race could be one com ponent, but other

4 demographic factors, as well as special talents or needs of students, should also be considered.

5 Id. Therefore, where race-neutral measures do not achieve the stated goal of diversity in schools,

6 Justice Kennedy would allow scho ol districts to consider the race of individual students. Id. at

7 2792.
8

School boards may pursue the goal of bringing together students

9

of diverse races through other means, including strategic site

10

selection of new schools; drawing attendance zones with general

recognition of the demographics of neighborhoods; allocating

11

resources for special programs; recruiting students and faculty

in a targeted fashion; and tracking enrollments, performance, and

12

other statistics by race.

13 Id. Individual racial classification, however, would be legitim ate only as “a last resort to achieve
14 a compelling interest.” Id. Such an approach, according to Justice Kennedy, would be “inform ed
15 by Grutter, though the p articular criteria relevant to placem ent would differ based on the age of
16 17 the students, the needs of the parents, and the role of the schools.” Id. at 2793. Justice Kennedy
18 concluded by stating that the Court’s decision “should not pr event school districts from

19 continuing the im portant work of bringing togeth er students of diffe rent racial, ethnic, and

20 economic backgrounds.” Id. at 2797.

21

Justice Kennedy’s disagreement with the pl urality on the question of whether achieving

22 racial diversity could ever constitute a co mpelling governm ental interest leaves open the
23 possibility that an admissions p lan utilizing r acial class ifications to f urther a c ompelling
24

25 governmental interest in achieving racial diversity in a student body could survive strict scrutiny.

7 ORDER

Case 2:00-cv-01205-BJR Document 129 Filed 01/12/09 Page 8 of 21

3. Dissents 1

2

Justice Breyer authored a dissenting opinion, which was joined by Justic es Ste vens,

3 Souter and Ginsberg, supporting th e “broad discretionary powers of school authorities” to use

4 race-based policies to achieve positive race-related goals. Id . at 2812. Justice Breyer engaged in

5 an extended review of the history of racial segregation of schoolch ildren in this country, and the
6 Supreme Court’s historic decision in Brown v. Board of Education , 347 U.S. 483 (1954) 7
(holding such racial segregation unconstitutional). Id. at 2801. Justice Breyer wrote that the 8
majority reaches “the w rong conclusion” in this case, and that in so doing, “it m isapplies the 9
10 relevant constitutional principles, it announces legal rules th at will obstruct efforts by state and

11 local governm ents to deal effectively with th e growing resegregation of public schools, it

12 threatens to substitu te for present calm a disruptive roun d of race-related litigation, and it

13 undermines Brown’s prom ise of integrated prim ary a nd secondary educa tion that local
14 communities have sought to m ake a reality.” Id . at 2800. He concluded by stating that the
15 Court’s decision is one “tha t the Co urt and the Nation wi ll come to regret.” Id . at 2837. Justice
16 17 Stevens joined in Justic e Breyer’s “eloquent and unanswerable dissent,” id. at 2797, but wrote
18 separately to add his thoughts about the history of Brown.

19

4. Remand

20

The Supreme Court remanded this case to the 9th Circuit Court of Appeals, which vacated

21 its 2005 opinion, and rem anded the case to the th is court for further proceedings. Parents
22 Involved in Community Schools v. Seattl e School District No. 1, et al. , 498 F.3d 1059 (2007).
23 The District formally repealed the racial tiebreaker in September 2007.
24

25

8 ORDER

Case 2:00-cv-01205-BJR Document 129 Filed 01/12/09 Page 9 of 21

D. MOTIONS BEFORE THIS COURT 1

2

PICS filed a Motion f or Entry of Judgm ent, seeking a declaratory judgm ent and an

3 injunction. PICS also moved for a ru ling that it is entitled to attorney’s fees pursuant to the Civil

4 Rights Attorney’s Fees Awards Act, 42 U.S.C. §1988, and requested that the court retain

5 jurisdiction to determine the amount of fees and costs, and to enforce the injunction, if necessary.

6

The District filed an opposition and Cross Motion for Dismissal in which it characterizes

7 PICS’s request for entry of judgm ent as a transparent attempt to buttr ess its request f or a ruling
8

that it is entitled to an a ward of attorney’s fees. The District urges the court to decline to provide 9

10 the relief requested on the gr ounds that: (1) the case is m oot under the voluntary cessation

11 doctrine; an d (2) PICS f ails to m ake the sho wing required to obtain prospective relief. The

12 District seeks entry of judgment of dismissal pursuant to Rule 56.

13

PICS filed a Reply in Support of its Moti on for Entry of Judgm ent a nd Opposition to

14 Defendant’s Motion to Dism iss, and the District filed a Reply in Support of Cross Motion to
15 Dismiss. Pursuant to a request from this c ourt, the parties provided supplem ental briefing on
16
17 PICS’s entitlement to an award of attorney’s fees.

18 III. OPINION OF THE COURT

19

A. Mootness

20

The District argues that th is case is m oot under the doc trine of voluntary cessation

21 because the District ab andoned us e of the racial tiebreaker in 2002 . In gen eral, “voluntary
22 cessation of allegedly illegal c onduct doe s n ot dep rive the tri bunal of power to hear and
23 determine the case, i. e., does not m ake the ca se moot.” County of Los Angeles v. Davis , 440
24
25 U.S. 625, 631 (1979) (quoting United States v. W .T. Grant Co. , 345 U.S. 629, 632 (1953)).

However, in defined circum stances, jurisdic tion can dissolve if the case becom es m oot.

9 ORDER

Case 2:00-cv-01205-BJR Document 129 Filed 01/12/09 Page 10 of 21

Voluntary c essation of a challenge d practice will re nder a m atter m oot where: (1 ) there is n o 1 2 reasonable expectation that the alleged viola tion will re cur; and (2 ) in terim events hav e 3 eradicated the effects of the alleged violation. Davis , 440 U.S. at 631. The Suprem e Court in

4 Parents was unconvinced that the District’s suspension of the racial tiebreaker rendered the case

5 moot: 6 7 8

Voluntary cessation does not moot a case or controversy unless subsequent events m a[ke] it absolute ly clear that the allegedly wrongful behavior could not reasonably be exp ected to recur ... a heavy burden that [the District] has clearly not met.

9 Parents, 127 S.Ct. at 2751 (citations and intern al quotation marks omitted). The Court noted that

10 the District’s sustained defens e of its policy suggested that the m atter was not m oot. Id. The

11 District now asks this court to revisit the quest ion, arguing that it is now absolutely clear that
12

there is no chance of a recurring violation. 13

14

The District relies heavily on Smith v. University of W ashington, 233 F.3d 1188 (9 th Cir.

15 2000), a case that presents under different circum stances. From at least 1994 to Decem ber 1998,

16 the University of Washington School of Law used race as a criterion in its adm issions decisions,

17 with a stated goal of the enrollment of a diverse student body. Sm ith, 233 F.3d at 1191. In 1997,
18 a group of unsuccessful applicants to the law school sued the school, certain m embers of the
19 administration and some m embers of the law sc hool faculty, alleging racial discrim ination. Id.
20 21 After the la wsuit was f iled, bu t be fore it cou ld be resolved, the W ashington State legislature
22 passed Initiative 200, a law p rohibiting state entitie s from discrim inating against, or g ranting

23 preferential treatm ent to, any individual or gro up on the basis of race, sex, color, ethnicity, o r

24 national origin in, inter alia, public education. Id. at 1192. The law school m oved to dism iss on 25 the grounds that the new st atute prohibited the use of race as a factor in its admissions decisions,

and therefore m ooted the case. The plaintiffs oppos ed the motion, arguing that it had yet to be
10 ORDER

Case 2:00-cv-01205-BJR Document 129 Filed 01/12/09 Page 11 of 21

seen how the law school w ould in terpret its obligati ons under the law. Id. The District Court 1 2 determined that the cas e was m oot, and the 9 th Circuit affirm ed. The 9 th Circu it no ted tha t th e
3 change in adm issions policy was brought about “unde r the lash” of the stat ute, and that the law

4 school’s obligation to com ply with the newly enact ed law was sufficient to m oot all claim s for

5 prospective relief. Id. at 1194-95. However, contrary to the District’s contention, Sm ith does not

6 compel a fi nding of mootness here. The District’s repea l o f the r acial tieb reaker in the instan t
7 case was prom pted not by an interv ening, unrelated event such as the enactment of a statute by
8 the legislature, but a ruling in this very case.
9

10

As PICS argues, the Supreme Court’s decision in Quern v. Mandley, 436 U.S. 725 (1978)

11 is directly on point. In Quern , plaintiffs alleged that the Sta te of Illinois violated f ederal law by

12 imposing tighter e ligibility requ irements f or an em ergency assis tance program than were

13 required by federal statute. The state won in the di strict court, but the court of appeals reversed
14 and rem anded. Thereafter, the state withdrew from the em ergency assis tance p rogram and
15 successfully moved the trial court for dismissal of the claims on the ground that they were m oot.
16 17 Plaintiffs appealed again, the court of appeal s reversed again, and th e Suprem e Court granted
18 certiorari, which, before reaching the merits of the case, ruled on the mootness issue as follows:

19

We agree with the Court of Appeals that the cases were not

rendered moot by Illinois’ decision to withdraw from the program

20

…By granting the defendants’ motions to dismiss, as it was

21

bound to do if the case was indeed moot, the District Court rendered the entire proceeding a nullity. There was no longer

22

any judgment binding on the defendants to prevent them from

returning to the old program. And, while the defendants’ good-

23

faith representation that they had no intention of doing so might

properly have led the District Court to deny injunctive relief, it

24

could not operate to deprive the successful plaintiffs, and indeed

25

the public, of a final and binding determination of the legality of the old practice.

11 ORDER

Case 2:00-cv-01205-BJR Document 129 Filed 01/12/09 Page 12 of 21

Id. at 733 n. 7 (internal quotations omitted). Thus, the Supreme Court held, in a situation similar 1 2 from the present cas e, that defendant’s cess ation of a challenged practice did not render the 3 plaintiff’s claims moot. See also Scott v. Pasadena Unified School Dist. , 306 F.3d 646, 656 (9 th

4 Cir. 2002) (discontinuing use of lottery assignment in response to a court order did not render

5 case moot). For the above reasons, this court finds that this case is not moot.

6

B. Prospectiv e Relief

7 PICS asserts that it is entitled to prospective relief in the form of an injunction and
8

a declaratory judgment. inapposite. 9

10

1. Injunctive Relief

11

PICS argues that the f ollowing injunction is necessary to im plement the Suprem e Court

12 opinion in Parents, and to prevent future use of racial classifications in school assignments by the

13 District: 14 15 16 17 18 19 20

That the District and its present and future directors, officers, and employees are each permanently enjoined from authorizing, permitting, or implementing the Racial Tiebreakers or any substantially similar modification thereof or any other plan, policy or device by which individual students are classified systematically or “typed” according to race and assigned to high schools solely on the basis of race, unless it shall have been demonstrated to the Court that such race-based assignments are necessary as a last resort to achieve a compelling interest of the District.

21

A plaintif f seeking in junctive relief must show : “(1) th at it has su ffered an irreparable

22 injury; (2) that rem edies ava ilable at law, su ch as m onetary dam ages, are in adequate to
23 compensate for that in jury; (3) that, consider ing the balance of hardship s between plaintiff and
24

25 defendant, a rem edy in equity is warranted; a nd (4) th at the pub lic in terest would not be

disserved by a perm anent injunction.” eBay, Inc. v. MercExchange, L.L.C. , 547 U.S. 388, 391

12 ORDER

Case 2:00-cv-01205-BJR Document 129 Filed 01/12/09 Page 13 of 21

(2006). “The decision to grant or deny perm 1 2 discretion by the district court[.]” Id.

anent injunctive relief is an act of equitable

3

PICS conte nds that the depriva tion of its cons titutional rig hts cons titutes an irrep arable

4 injury. But it is well-es tablished th at the requ irement of an irrepa rable injury can not be m et

5 without a s howing of a “real o r imm ediate thr eat that the plain tiff will be wronged again—a
6 likelihood of substantial and im mediate irreparable injury.” City of Los Angeles v. Lyons , 461
7 U.S. 95, 111 (1983) (q uotation marks and citation om itted). See also Bloodgood v. Garraghty ,
8 783 F.2d 470, 475 (4 th Cir. 1986) (“injunction is a dras tic remedy and will not issu e unless there
9 10 is an imm inent threat of illegal action.”); Allis-Chalmers Corp. v. Arnold , 619 F. 2d 44, 46 (9 th

11 Cir. 1980) (injunctive relief requires a “determination that there exists some cognizable danger of

12 recurrent violation”). The determination that such danger exists m ust “be based on appropriate

13 findings supported by the record.” F ederal Election Comm ’n v. Furgatch , 869 F.2d 1256, 1263

14 (9th Cir. 1989). Factors that the district court may consider in making this finding include:

15

The degree of scienter involved; the isolated or recurrent nature

16

of the infraction; the defendant’s recognition of the wrongful

17

nature of his conduct; the extent to which the defendant’s professional and personal characteristics might enable or

18

tempt him to commit future violations; and the sincerity of any

assurances against future violations.

19 Id. at 1263, n. 5. PICS insists that without an inj
20

unction, there is a “subs tantial risk that the

21 District will be tempted to adopt new racial clas sifications that run afoul of the Supr eme Court’s

22 decision.” The court does not agree.

23

PICS has not provided, nor is the court aware, of any evidence that the District intends to

24 ignore the Suprem e Court’s order. F irst, the Distri ct lacked discrim inatory intent in form ulating 25 its plan. The challenged policy was conceived in good faith, for the be nefit of the students in its

school district; it had no reason to suspect that the policy w ould later b e held unconstitutional.
13 ORDER

Case 2:00-cv-01205-BJR Document 129 Filed 01/12/09 Page 14 of 21

Prior to the Suprem e Court opinion in Parents , the Court had specifically recognized an interest 1 2 in div ersity in the edu cational con text to b e a com pelling interes t that cou ld s urvive stric t 3 scrutiny. Grutter v. Bollinger , 539 U.S. 306, 328 (2003). Second, th e District m ade a sustained

4 effort to contain any potential harm caused by the scheme, once challenged. After the 9 th Circuit

5 vacated its injunction in 2002, the District did not attempt to resuscitate the racial tiebreaker. The
6 District instead left the policy in suspension, and waited for a final judicial ruling on the m atter.1 7
Third, it is c lear that the District grasps that use of the racial tiebreake r is now prohibited. After 8
issuance of the Suprem e Court decision, the S eattle School Board for mally repealed the 9
10 challenged measure, and began to f ormulate a ne w admissions plan in accord with the guidance

11 provided in that ruling. As the Suprem e Court recognized in Quern , a defendants’ good-faith

12 representation that it ha s no inten tion of reverting to a challenge d practice can pro perly lead a

13 court to deny injunctive relief. Quern , 436 U.S. at 733, n. 7 (interna l quotations om itted). There
14 is simply no basis upon which the court could find that the District is hatching a new admissions
15 scheme that would run contrary to the Suprem e Court opinion. See also Belk v. Charlotte -
16 17 Mecklenburg Bd. of Educ., 269 F.3d 305 (4th Cir. 2001) (en banc) (vacating injunction where the
18 record was devoid of evidence th at the school district intende d to ignore a court order and

19 resume race-based assignment policies).

20

PICS argues that past illegal c onduct can give rise to an infe rence that future violations

21 may occur. PICS relies on United S tates v. Laerdal Mfg. , 73 F.3d 852 (9 th Cir. 1995) for this
22 proposition, but Laerdal is distinguishable from the present case. In Laerdal , the defendant
23 repeatedly and knowingly failed to comply with existing federal regulations which led the district
24

25
1 Although the fact that the District took this voluntary measure provides insufficient support for the District’s claim of mootness, it lends solidity to the District’s argument that an injunction is unnecessary.
14 ORDER

Case 2:00-cv-01205-BJR Document 129 Filed 01/12/09 Page 15 of 21

court to doubt the veracity of the defendant’s assurances th at it would comply with th e 1 2 regulations in the future. Laerdal , 73 F.3d at 857. In the instant case, the District was acting in 3 good faith and in a m anner consistent with the law at the tim e when it put the adm issions plan

4 containing the racial tiebreaker into practice. This court therefore finds Laerdal to be inapposite.

5

2. Declaratory Relief

6

PICS argues that it is entitled, by virtue of the Suprem e Court opinion in Parents , to the

7 following declaratory relief:
8

(1) The District’s policy of considering race in its admissions

9

decisions, adopted as part of the District’s comprehensive high

10

school assignment plan in 1997 and modified in 2000,whereby

numerous students were assigned to high schools solely on the

11

basis of race (the “Racial Tiebreakers”), violated the Fourteenth

Amendment to the United States Constitution and Title VI of the

12

Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.

13

(2) The District has not demonstrated that assigning individual

14

students to different high schools solely on the basis of race is

necessary as a last resort to achieve any compelling interest of

15

the District.

16

(3) The District can have no compelling interest in achieving in its

17

high schools either (a) diversity based solely on race or ethnicity, or (b) a predetermined demographic balance between

18

white and non-white students.

19 The Declaratory Judgm ent Act provides: “I n a case of actual cont roversy with in its
20 21 jurisdiction . . . any court of the United States . . . may declare the rights and other legal relations
22 of any interested party seeking such declaration, whether or not further relief is or could be

23 sought.” 28 U.S.C. § 2201(a). See also Fed. R. Civ. P. 57. A declaratory judgment is an equitable

24 remedy; it is ther efore lef t to the c ourt’s d iscretion wheth er to g rant such re lief. Governm ent 25 Employees Ins. Co. v. Dizol , 133 F.3d 1220, 1223 (9th Cir. 1998), citing Public Affairs Assoc.,

Inc. v. Rickover , 369 U .S. 111, 112 (1962) (Declaratory Judg ment Act “gave the federal courts
15 ORDER

Case 2:00-cv-01205-BJR Document 129 Filed 01/12/09 Page 16 of 21

competence to m ake a declaration of rights; it did not impose a duty to do so.”). Although 1 2 declaratory judgm ents and injunctio ns are both prospective, equ itable relief, the tw o standards 3 are not identical. Indeed, at tim es, a declaratory judgm ent m ay be proper where an injunction

4 would not. Green v. Mansour , 474 U.S. 64, 72 (1985); S teffel v. Thompson , 415 U.S. 452, 471

5 (1974).

6

The propriety of issuing a declaratory

judgment depends upon various equitable

7 considerations, and is also “inform ed by the t eachings and experience concerning th e functions
8

and extent of federal judicial power.” Green , 474 U.S. at 72 (citations and internal quotation 9

10 marks om itted). Dec laratory relief is approp riate when a d eclaratory judgm ent “ will serve a

11 useful purpose in clarifying and settling the legal relations between the parties, and [when] it will

12 terminate the controversy.” Los Angeles County Bar Ass 'n v. Eu , 979 F.2d 697, 703 (9th Cir.

13 1992) (citation omitted). In the instant case, the court finds that granting a declaratory judgm ent

14 would neither serve a useful pur pose in clarifying the legal right s of the parties, nor would it

15 resolve any controversy that is properly before the court.
16

17

The Parents decision sparked an im passioned debate among legal academics as to what

18 impact the ruling will have on school assignment plans nationwide. The Supre me Court opinion

19 in Parents was produced by a fractured and deeply divided Court that found itself unable to reach

20 consensus o n whether achieving r acial div ersity could constitu te a co mpelling go vernmental

21 interest. One scholar described the five opinions that comprise the decision in Parents as follows:

22 On a first read, one is struck by the dramatic rhetoric, heightened

23

emotion, sharp disagreement, and accusations of bad faith coursing

through this 185-page collection of opinions. Chief Justice Roberts

24

…accuses Justice Breyer of lawlessness…Justice Thomas equates

25

Justice Breyer’s dissent with arguments made by white racists who supported school segregation…Justice Kennedy call[s] the plurality

opinion ‘profoundly mistaken.’

16 ORDER

Case 2:00-cv-01205-BJR Document 129 Filed 01/12/09 Page 17 of 21

In his short dissent, Justice Stevens calls the Chief Justice’s reliance

1

on Brown ‘a cruel irony,’ …Justice Breyer returns the Chief

2

Justice’s favor by calling his opinion lawless…claiming that ‘the plurality’s approach risks serious harm to the law and for the

3

Nation.’

4 James E. Ryan, The Supreme Court and Voluntary Integration , 121 Harv. L. Rev. 131, 134

5 (2007). As explained above, in Section I(C), Justice Kennedy’s concurrence left the door open to
6 the possibility that in the future, a school assignment plan featuring race as a factor could survive 7
strict scrutiny under ci rcumstances similar to those of the instant case. H owever, exactly to what 8
extent and in what m anner the E qual Protec tion Clause would permit a school system to 9
10 incorporate race into an assignment plan remains unclear.

11

PICS’ proposed declaratory judgm ent, which seek s to resolve this uncertainty, is simpl y

12 too broad in light of the com plexity of the Supreme Court opinion, and the evident disagreem ent

13 regarding its m eaning. PICS assert s that this disagreem ent supports its claim that prospective

14 relief is necessary, but the court disagrees.

Given that reasonable minds could differ in

15 understanding the impact of the Supreme Court opinion in Parents , the court finds that PICS has
16

17 failed to provide the court with a persuasive reason to provide a p re-emptive interpretation of

18 that opinion. The declaratory judgm ent sought by PICS strikes this c ourt as verging on an

19 invitation to the court to abuse its discretion.

20

Accordingly, the court finds that PICS is entitl ed to have this court vacate its prio r grant

21 of summary judgment in favor of the District, and to have judgm ent enter in its favor; however,
22 the court’s judgment will be so limited. The court declines to grant PICS’ request for declaratory
23 relief.
24

25

17 ORDER

Case 2:00-cv-01205-BJR Document 129 Filed 01/12/09 Page 18 of 21

C. Attorney’s Fees 1

2

PICS moves for a ruling that it is en titled to attorney’s fees pursu ant to the Civil Rights

3 Attorney’s Fees Awards Act, 42 U.S.C. § 1988, which authorizes district courts to award

4 reasonable attorney’s fees to prevailing parties in civil rights litigation. A party is “prevailing”

5 within the meaning of § 1988 when “(1) it wins on the merits of its claim, (2) the relief received
6 materially alters the legal relationship between the parties by modifying the defendant's behavior, 7
and (3) that relief directly benef its the plain tiff.” Martinez v. W ilson, 32 F.3d 1415, 1422 (9th 8
Cir. 1994). While an award of attorney’s fees is discretionary, courts are constrained to award 9
10 fees to prevailing parties unless special circumstances exist justifying denial. Topanga Press, Inc.

11 v. City of L os Angeles, 989 F. 2d 1524, 1534 (9th Cir. 1993) , as am ended, cert. den., 511 U.S.

12 1030 (1994). Therefore, the inquiry requires the court to determ ine: (1) whether PICS is a

13 prevailing party; and (2) if so, whether special circumstances exist that would render a fee award
14 unjust in these circumstances.
15 A party is “preva iling” for attorn ey’s fees purposes if it s ucceeds on “any sign ificant
16 17 issue in litigation which achieve s some of the benefit the part ies sought in bringing suit.” Id . at 18 433, quoting Nadeau v. Helgem oe, 581 F.2d 275, 278-279 (1 st Cir. 1978). Following this

19 reasoning, courts have bestowed prevailing party status on a wi de array of plaintiffs. See e.g. ,

20 Texas State Teachers Ass’n v. Ga rland Independent School Dist., 489 U.S. 782 (1989) (plaintiff
21 need not p revail on all issues, or ev en the m ain issue to qu alify as p revailing party); W atson v. 22 County of Riverside , 300 F. 3d 1092 (9 th Cir. 2002) (plaintiff who succeeds in obtaining 23
preliminary injunction is prevaili ng party even when he fails to obtain any other re lief); Clark v. 24 25 City of Los Angeles, 803 F. 2d 987, 989 (9 th Cir. 1986) (plaintiff need not obtain form al relief to
be prevailing party).

18 ORDER

Case 2:00-cv-01205-BJR Document 129 Filed 01/12/09 Page 19 of 21

The court does not find it difficult to conclude that PICS is a prevailing party. There is no 1 2 question that PICS prev ailed on a signif icant issue in litig ation when the Suprem e Court agr eed 3 that the ra cial tiebre aker was unconstitu tional. The Distr ict, however, argues that despite this,

4 PICS is not a prevailing party. First, the Dist rict argues that PICS is not a prevailing party

5 because th e case is m oot. This arg ument fails for the reasons given above. The District also
6 contends that the Suprem e Cour t’s decision did not change the legal relationship between the 7
parties because its ultim ate elimination of the tiebreaker was not prom pted by the decision, and 8
was undertaken voluntarily. But elim ination of the racial tiebreaker from t he District’s 9
10 admissions policy is exactly what PICS sou ght to acco mplish when it filed s uit—and it

11 succeeded. The Supreme Court held the adm issions plan u nconstitutional. Following that, the

12 District form ally repealed th e policy. The rep eal, however it was acco mplished, was a direct

13 result of PICS’s lawsuit. There is little doubt that PICS is the prevailing party in this matter.

14 PICS’ status as a prevailing pa rty, however, does not automatica lly entitle it to an award

15 of attorney’s fees pursuant to §1988. The 9
16

th Circuit has articulated a two-pronged test for

17 determining the existence of special circum stances that could render an award of attorney’s fees

18 unjust: (1) whether allowing atto rney’s fees would further th e purposes of § 1988; and (2)

19 whether the balance of the equities favors or disfavors the denial of fees. Bauer v. Sampson , 261

20 F. 3d 775, 785-86 (9th Cir. 2001), citing Gilbrook v. City of Westminster, 177 F. 3d 839, 878 (9th
21 Cir. 1999). Therefore, prior to deci ding to grant or deny an award of attorney’s fees to PICS, the 22
court will allow the pa rties to brief the issue of whether spe cial circumstances exist that would 23
render an award of fees unjust in this case. Further, the court de clines to m ake its decision on 24 25 attorney’s fees in the abs tract. When a party m akes a request for attorney’s fees, it is custom ary
to set forth the amount it is seeking and the court directs PICS to do precisely that.

19 ORDER

Case 2:00-cv-01205-BJR Document 129 Filed 01/12/09 Page 20 of 21

D. Conclusion 1

2

For all the foregoing reasons, the court hereby orders as follows:

3

In accordance with the decis ion of the United States Supreme Court in this case, Parents

4 Involved in Community Schools v. S eattle School District No. 1 et al. , 127 S. Ct. 2738 (2007);

5 the judgment of the Supreme Court entered on July 28, 2007 (remanding this case to the Court of

6 Appeals for the Ninth Circuit for further proceedings); and the Judgment of the Court of Appeals
7 entered on August 22, 2007 (remanding the case to this court for further proceedings); and based
8 upon the reasoning of the Supreme Court in its aforesaid decision, the court hereby:
9

10

(1) vacates its April 6, 2001 grant of summ ary judgment in favor of De fendant, Seattle

11 School District No. 1;

12

(2) grants, in part, Plaintiff’s Motion for Entry of Judgment;

13

(3) denies Plaintiff’s Motion for Entry of J udgment insofar as it seeks injunctive or

14 declaratory relief;

15 (4) denies Defendant’s Cross Motion for Dismissal; and
16

17

(5) finds that Plaintiff is a pr evailing party as that term is used in Civil Rights Attorne y’s

18 Fees Awards Act, 42 U.S.C. § 1988, but declines, at this juncture, to decl are that Plaintiff is

19 entitled to an award of attorney’s fees.

20

Before ruling on Plaintiff’s request for attorney’s fees, the court will require a breakdown

21 of the fees and expenses it wi ll be seeking. It will not be necessary to attach supporting
22 documentation at this tim e. In addition, the court orders briefing from the parties on the issue of
23 whether special circum stances ex ist in this cas e that would render an award of attorney’s fees
24
25 unjust. In particular, the court would like the partie s to address the criteria discussed in Thorsted

v. Gregoire, 841 F. Supp. 1069 (W.D. Wash. 1994).

20 ORDER

Case 2:00-cv-01205-BJR Document 129 Filed 01/12/09 Page 21 of 21

The court sets the following briefing schedule: Plaintiff shall f ile its b rief no la ter than 1 2 Monday, January 26, 2009. Defendant’s response will be due Friday, February 6, 2009.

3 Plaintiff’s reply brief will be due on Friday, February 13, 2009.

4

DATED at Seattle, Washington this 12th day of January, 2009.

5

6

A

7

Barbara Jacobs Rothstein

8

U.S. District Court Judge

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

21 ORDER

 
 AO 450 (Rev. 5/85) JudgmentCin aa Csiveil C2ase:0r0-cv-01205-BJR Document 130 Filed 01/12/09 Page 1 of 2

United States District Court WESTERN DISTRICT OF WASHINGTON

PARENTS INVOLVED IN COMMUNITY SCHOOLS, a Washington Nonprofit Corp.,
Plaintiffs.
v.
SEATTLE SCHOOL DIST. NO. 1, a political subdivision of the State of Washington, et al.,
Defendants.

JUDGMENT IN A CIVIL CASE
CASE NUMBER: 2:00-cv-01205-BJR

----------------------------------
X ______________________

Jury Verdi ct. This ac tion came before the court for a trial by jury. The issues have been tried and the jury has rendered its verdict.
Decision b y Co urt. This action came to hear ing before the court. The issues have been heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED

In accordance with the dec ision of the United States Supreme Court in this case, Parents Involved in Communit y Sc hools v. Seattle School District No. 1 et al. , 127 S. Ct. 2738 (2007); the judgment of the Supreme Cour t entered on July 28, 2007 (remanding this case to the Court of Appeals for the Ninth Circuit fo r further proceedings); and the Judgm ent of the Court of Appeals entered on August 22, 2007 (remanding the case to th is court for further proceedings); and ba sed upon the reasoning of the Supreme Court in its aforesaid decision, the court hereby:
1. vacates its April 6, 2001 gr ant of summary judgment in fa vor of Defendant, Seattle School District No. 1;
2. grants, in part, Plaintiff, Parents Involved in Community Schools’ Motion for Entry of Judgment;
3. denies Plaintiff’s Moti on for Entry of Judgment in sofar as it seeks injunc tive or declaratory relief;
4. denies the District’s Cross Motion for Dismissal; and

AO 450 (Rev. 5/85) JudgmentCin aa Csiveil C2ase:0r0-cv-01205-BJR Document 130 Filed 01/12/09 Page 2 of 2
5. finds that Plaintiff is a prevailing party as that term is used in the Civ il Rights Attorney’s Fees Awards Act, 42 U.S.C. § 1988, but declines, at this juncture, to declare that PICS is entitled to an award of attorney’s fees.

January 12, 2009

Clerk

BRUCE RIFKIN

s/ Mary Duett ________________________________ By Mary Duett, Deputy Clerk

 
 (Slip Opinion)

OCTOBER TERM, 2006

1

Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES

Syllabus
PARENTS INVOLVED IN COMMUNITY SCHOOLS v. 
 SEATTLE SCHOOL DISTRICT NO. 1 ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 05–908. Argued December 4, 2006—Decided June 28, 2007*
Respondent school districts voluntarily adopted student assignment plans that rely on race to determine which schools certain children may attend. The Seattle district, which has never operated legally segregated schools or been subject to court-ordered desegregation, classified children as white or nonwhite, and used the racial classifications as a “tiebreaker” to allocate slots in particular high schools. The Jefferson County, Ky., district was subject to a desegregation decree until 2000, when the District Court dissolved the decree after finding that the district had eliminated the vestiges of prior segregation to the greatest extent practicable. In 2001, the district adopted its plan classifying students as black or “other” in order to make certain elementary school assignments and to rule on transfer requests. Petitioners, an organization of Seattle parents (Parents Involved) and the mother of a Jefferson County student (Joshua), whose children were or could be assigned under the foregoing plans, filed these suits contending, inter alia, that allocating children to different public schools based solely on their race violates the Fourteenth Amendment’s equal protection guarantee. In the Seattle case, the District Court granted the school district summary judgment, finding, inter alia, that its plan survived strict scrutiny on the federal constitutional claim because it was narrowly tailored to serve a compelling government interest. The Ninth Circuit affirmed. In the Jefferson County case, the District Court found that the school district had as-
—————— * Together with No. 05–915, Meredith, Custodial Parent and Next
Friend of McDonald v. Jefferson County Bd. of Ed et al., on certiorari to the United States Court of Appeals for the Sixth Circuit.

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serted a compelling interest in maintaining racially diverse schools, and that its plan was, in all relevant respects, narrowly tailored to serve that interest. The Sixth Circuit affirmed.
Held: The judgments are reversed, and the cases are remanded.
No. 05–908, 426 F. 3d 1162; No. 05–915, 416 F. 3d 513, reversed and remanded. THE CHIEF JUSTICE delivered the opinion of the Court with respect to Parts I, II, III–A, and III–C, concluding: 1. The Court has jurisdiction in these cases. Seattle argues that Parents Involved lacks standing because its current members’ claimed injuries are not imminent and are too speculative in that, even if the district maintains its current plan and reinstitutes the racial tiebreaker, those members will only be affected if their children seek to enroll in a high school that is oversubscribed and integration positive. This argument is unavailing; the group’s members have children in all levels of the district’s schools, and the complaint sought declaratory and injunctive relief on behalf of members whose elementary and middle school children may be denied admission to the high schools of their choice in the future. The fact that those children may not be denied such admission based on their race because of undersubscription or oversubscription that benefits them does not eliminate the injury claimed. The group also asserted an interest in not being forced to compete in a race-based system that might prejudice its members’ children, an actionable form of injury under the Equal Protection Clause, see, e.g., Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 211. The fact that Seattle has ceased using the racial tiebreaker pending the outcome here is not dispositive, since the district vigorously defends its program’s constitutionality, and nowhere suggests that it will not resume using race to assign students if it prevails. See Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189. Similarly, the fact that Joshua has been granted a transfer does not eliminate the Court’s jurisdiction; Jefferson County’s racial guidelines apply at all grade levels and he may again be subject to race-based assignment in middle school. Pp. 9–11. 2. The school districts have not carried their heavy burden of showing that the interest they seek to achieve justifies the extreme means they have chosen—discriminating among individual students based on race by relying upon racial classifications in making school assignments. Pp. 11–17, 25–28. (a) Because “racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification,” Fullilove v. Klutznick, 448 U. S. 448, 537 (STEVENS, J., dissenting), governmental distributions of burdens or benefits based

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on individual racial classifications are reviewed under strict scrutiny, e.g., Johnson v. California, 543 U. S. 499, 505–506. Thus, the school districts must demonstrate that their use of such classifications is “narrowly tailored” to achieve a “compelling” government interest. Adarand, supra, at 227.
Although remedying the effects of past intentional discrimination is a compelling interest under the strict scrutiny test, see Freeman v. Pitts, 503 U. S. 467, 494, that interest is not involved here because the Seattle schools were never segregated by law nor subject to courtordered desegregation, and the desegregation decree to which the Jefferson County schools were previously subject has been dissolved. Moreover, these cases are not governed by Grutter v. Bollinger, 539 U. S. 306, 328, in which the Court held that, for strict scrutiny purposes, a government interest in student body diversity “in the context of higher education” is compelling. That interest was not focused on race alone but encompassed “all factors that may contribute to student body diversity,” id., at 337, including, e.g., having “overcome personal adversity and family hardship,” id., at 338. Quoting Justice Powell’s articulation of diversity in Regents of the University of California v. Bakke, 438 U. S. 265, 314–315, the Grutter Court noted that “ ‘it is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups,’ that can justify the use of race,” 539 U. S., at 324–325, but “ ‘a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element, ’ ” id., at 325. In the present cases, by contrast, race is not considered as part of a broader effort to achieve “exposure to widely diverse people, cultures, ideas, and viewpoints,” id., at 330; race, for some students, is determinative standing alone. The districts argue that other factors, such as student preferences, affect assignment decisions under their plans, but under each plan when race comes into play, it is decisive by itself. It is not simply one factor weighed with others in reaching a decision, as in Grutter; it is the factor. See Gratz v. Bollinger, 539 U. S. 244, 275. Even as to race, the plans here employ only a limited notion of diversity, viewing race exclusively in white/nonwhite terms in Seattle and black/“other” terms in Jefferson County. The Grutter Court expressly limited its holding—defining a specific type of broad-based diversity and noting the unique context of higher education—but these limitations were largely disregarded by the lower courts in extending Grutter to the sort of classifications at issue here. Pp. 11–17.
(b) Despite the districts’ assertion that they employed individual racial classifications in a way necessary to achieve their stated ends, the minimal effect these classifications have on student assignments

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suggests that other means would be effective. Seattle’s racial tiebreaker results, in the end, only in shifting a small number of students between schools. Similarly, Jefferson County admits that its use of racial classifications has had a minimal effect, and claims only that its guidelines provide a firm definition of the goal of racially integrated schools, thereby providing administrators with authority to collaborate with principals and staff to maintain schools within the desired range. Classifying and assigning schoolchildren according to a binary conception of race is an extreme approach in light of this Court’s precedents and the Nation’s history of using race in public schools, and requires more than such an amorphous end to justify it. In Grutter, in contrast, the consideration of race was viewed as indispensable in more than tripling minority representation at the law school there at issue. See 539 U. S., at 320. While the Court does not suggest that greater use of race would be preferable, the minimal impact of the districts’ racial classifications on school enrollment casts doubt on the necessity of using such classifications. The districts have also failed to show they considered methods other than explicit racial classifications to achieve their stated goals. Narrow tailoring requires “serious, good faith consideration of workable race-neutral alternatives,” id., at 339, and yet in Seattle several alternative assignment plans—many of which would not have used express racial classifications—were rejected with little or no consideration. Jefferson County has failed to present any evidence that it considered alternatives, even though the district already claims that its goals are achieved primarily through means other than the racial classifications. Pp. 25–28.
THE CHIEF JUSTICE, joined by JUSTICE SCALIA, JUSTICE THOMAS, and JUSTICE ALITO, concluded for additional reasons in Parts III–B and IV that the plans at issue are unconstitutional under this Court’s precedents. Pp. 17–25, 28–41.
1. The Court need not resolve the parties’ dispute over whether racial diversity in schools has a marked impact on test scores and other objective yardsticks or achieves intangible socialization benefits because it is clear that the racial classifications at issue are not narrowly tailored to the asserted goal. In design and operation, the plans are directed only to racial balance, an objective this Court has repeatedly condemned as illegitimate. They are tied to each district’s specific racial demographics, rather than to any pedagogic concept of the level of diversity needed to obtain the asserted educational benefits. Whatever those demographics happen to be drives the required “diversity” number in each district. The districts offer no evidence that the level of racial diversity necessary to achieve the asserted educational benefits happens to coincide with the racial demograph-

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ics of the respective districts, or rather the districts’ white/nonwhite or black/“other” balance, since that is the only diversity addressed by the plans. In Grutter, the number of minority students the school sought to admit was an undefined “meaningful number” necessary to achieve a genuinely diverse student body, 539 U. S., at 316, 335–336, and the Court concluded that the law school did not count back from its applicant pool to arrive at that number, id., at 335–336. Here, in contrast, the schools worked backward to achieve a particular type of racial balance, rather than working forward from some demonstration of the level of diversity that provides the purported benefits. This is a fatal flaw under the Court’s existing precedent. See, e.g., Freeman, supra, at 494. Accepting racial balancing as a compelling state interest would justify imposing racial proportionality throughout American society, contrary to the Court’s repeated admonitions that this is unconstitutional. While the school districts use various verbal formulations to describe the interest they seek to promote— racial diversity, avoidance of racial isolation, racial integration—they offer no definition suggesting that their interest differs from racial balancing. Pp. 17–25.
2. If the need for the racial classifications embraced by the school districts is unclear, even on the districts’ own terms, the costs are undeniable. Government action dividing people by race is inherently suspect because such classifications promote “notions of racial inferiority and lead to a politics of racial hostility,” Croson, supra, at 493, “reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin,” Shaw v. Reno, 509 U. S. 630, 657, and “endorse race-based reasoning and the conception of a Nation divided into racial blocs, thus contributing to an escalation of racial hostility and conflict,” Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 603 (O’Connor, J., dissenting). When it comes to using race to assign children to schools, history will be heard. In Brown v. Board of Education, 347 U. S. 483, the Court held that segregation deprived black children of equal educational opportunities regardless of whether school facilities and other tangible factors were equal, because the classification and separation themselves denoted inferiority. Id., at 493–494. It was not the inequality of the facilities but the fact of legally separating children based on race on which the Court relied to find a constitutional violation in that case. Id., at 494. The districts here invoke the ultimate goal of those who filed Brown and subsequent cases to support their argument, but the argument of the plaintiff in Brown was that the Equal Protection Clause “prevents states from according differential treatment to American children on the basis of their color or race,” and that view prevailed—this Court ruled in its remedial opinion that Brown required school dis-

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tricts “to achieve a system of determining admission to the public schools on a nonracial basis.” Brown v. Board of Education, 349 U. S. 294, 300–301 (emphasis added). Pp. 28–41.
JUSTICE KENNEDY agreed that the Court has jurisdiction to decide these cases and that respondents’ student assignment plans are not narrowly tailored to achieve the compelling goal of diversity properly defined, but concluded that some parts of the plurality opinion imply an unyielding insistence that race cannot be a factor in instances when it may be taken into account. Pp. 1–9.
(a) As part of its burden of proving that racial classifications are narrowly tailored to further compelling interests, the government must establish, in detail, how decisions based on an individual student’s race are made in a challenged program. The Jefferson County Board of Education fails to meet this threshold mandate when it concedes it denied Joshua’s requested kindergarten transfer on the basis of his race under its guidelines, yet also maintains that the guidelines do not apply to kindergartners. This discrepancy is not some simple and straightforward error that touches only upon the peripheries of the district’s use of individual racial classifications. As becomes clearer when the district’s plan is further considered, Jefferson County has explained how and when it employs these classifications only in terms so broad and imprecise that they cannot withstand strict scrutiny. In its briefing it fails to make clear—even in the limited respects implicated by Joshua’s initial assignment and transfer denial—whether in fact it relies on racial classifications in a manner narrowly tailored to the interest in question, rather than in the farreaching, inconsistent, and ad hoc manner that a less forgiving reading of the record would suggest. When a court subjects governmental action to strict scrutiny, it cannot construe ambiguities in favor of the government. In the Seattle case, the school district has gone further in describing the methods and criteria used to determine assignment decisions based on individual racial classifications, but it has nevertheless failed to explain why, in a district composed of a diversity of races, with only a minority of the students classified as “white,” it has employed the crude racial categories of “white” and “non-white” as the basis for its assignment decisions. Far from being narrowly tailored, this system threatens to defeat its own ends, and the district has provided no convincing explanation for its design. Pp. 2–6.
(b) The plurality opinion is too dismissive of government’s legitimate interest in ensuring that all people have equal opportunity regardless of their race. In administering public schools, it is permissible to consider the schools’ racial makeup and adopt general policies to encourage a diverse student body, one aspect of which is its racial composition. Cf. Grutter v. Bollinger, 539 U. S. 306. School authori-

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Syllabus
ties concerned that their student bodies’ racial compositions interfere with offering an equal educational opportunity to all are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion based solely on a systematic, individual typing by race. Such measures may include strategic site selection of new schools; drawing attendance zones with general recognition of neighborhood demographics; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race.
Each respondent has failed to provide the necessary support for the proposition that there is no other way than individual racial classifications to avoid racial isolation in their school districts. Cf. Richmond v. J. A. Croson Co., 488 U. S. 469, 501. In these cases, the fact that the number of students whose assignment depends on express racial classifications is small suggests that the schools could have achieved their stated ends through different means, including the facially race-neutral means set forth above or, if necessary, a more nuanced, individual evaluation of school needs and student characteristics that might include race as a component. The latter approach would be informed by Grutter, though the criteria relevant to student placement would differ based on the students’ age, the parents’ needs, and the schools’ role. Pp. 6–9.
ROBERTS, C. J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III–A, and III–C, in which SCALIA, KENNEDY, THOMAS, and ALITO, JJ., joined, and an opinion with respect to Parts III–B and IV, in which SCALIA, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a concurring opinion. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment. STEVENS, J., filed a dissenting opinion. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.

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1

Opinion of ROBERTS, C. J.

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 05–908 and 05–915
_________________

PARENTS INVOLVED IN COMMUNITY

SCHOOLS, PETITIONER

05–908

v.

SEATTLE SCHOOL DISTRICT NO. 1 ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
 APPEALS FOR THE NINTH CIRCUIT


CRYSTAL D. MEREDITH, CUSTODIAL PARENT AND NEXT

FRIEND OF JOSHUA RYAN MCDONALD, PETITIONER

05–915

v.

JEFFERSON COUNTY BOARD OF EDUCATION ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
 APPEALS FOR THE SIXTH CIRCUIT

[June 28, 2007] 


CHIEF JUSTICE ROBERTS announced the judgment of the Court, and delivered the opinion of the Court with respect to Parts I, II, III–A, and III–C, and an opinion with respect to Parts III–B and IV, in which JUSTICES SCALIA, THOMAS, and ALITO join.
The school districts in these cases voluntarily adopted student assignment plans that rely upon race to determine which public schools certain children may attend. The Seattle school district classifies children as white or nonwhite; the Jefferson County school district as black or “other.” In Seattle, this racial classification is used to

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Opinion of the Court


allocate slots in oversubscribed high schools. In Jefferson County, it is used to make certain elementary school assignments and to rule on transfer requests. In each case, the school district relies upon an individual student’s race in assigning that student to a particular school, so that the racial balance at the school falls within a predetermined range based on the racial composition of the school district as a whole. Parents of students denied assignment to particular schools under these plans solely because of their race brought suit, contending that allocating children to different public schools on the basis of race violated the Fourteenth Amendment guarantee of equal protection. The Courts of Appeals below upheld the plans. We granted certiorari, and now reverse.

I
Both cases present 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 school assignments. Although we examine the plans under the same legal framework, the specifics of the two plans, and the circumstances surrounding their adoption, are in some respects quite different.

A
Seattle School District No. 1 operates 10 regular public high schools. In 1998, it adopted the plan at issue in this case for assigning students to these schools. App. in No. 05–908, pp. 90a–92a.1 The plan allows incoming ninth

——————
1 The plan was in effect from 1999–2002, for three school years. This litigation was commenced in July 2000, and the record in the District Court was closed before assignments for the 2001–2002 school year were made. See Brief for Respondents in No. 05–908, p. 9, n. 9. We rely, as did the lower courts, largely on data from the 2000–2001 school

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Opinion of the Court
graders to choose from among any of the district’s high schools, ranking however many schools they wish in order of preference.
Some schools are more popular than others. If too many students list the same school as their first choice, the district employs a series of “tiebreakers” to determine who will fill the open slots at the oversubscribed school. The first tiebreaker selects for admission students who have a sibling currently enrolled in the chosen school. The next tiebreaker depends upon the racial composition of the particular school and the race of the individual student. In the district’s public schools approximately 41 percent of enrolled students are white; the remaining 59 percent, comprising all other racial groups, are classified by Seattle for assignment purposes as nonwhite. Id., at 38a, 103a.2 If an oversubscribed school is not within 10 percentage points of the district’s overall white/nonwhite racial balance, it is what the district calls “integration positive,” and the district employs a tiebreaker that selects for assignment students whose race “will serve to bring the school into balance.” Id., at 38a. See Parents Involved VII, 426 F. 3d 1162, 1169–1170 (CA9 2005) (en banc).3 If it is still necessary to select students for the school after using the racial tiebreaker, the next tiebreaker is the geographic proximity of the school to the student’s residence. App. in No. 05–908, at 38a.
Seattle has never operated segregated schools—legally
——————
year in evaluating the plan. See 426 F. 3d 1162, 1169–1171 (CA9 2005) (en banc) (Parents Involved VII).
2 The racial breakdown of this nonwhite group is approximately 23.8 percent Asian-American, 23.1 percent African-American, 10.3 percent Latino, and 2.8 percent Native-American. See 377 F. 3d 949, 1005– 1006 (CA9 2004) (Parents Involved VI) (Graber, J., dissenting).
3 For the 2001–2002 school year, the deviation permitted from the desired racial composition was increased from 10 to 15 percent. App. in No. 05–908, p. 38a. The bulk of the data in the record was collected using the 10 percent band, see n. 1, supra.

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separate schools for students of different races—nor has it ever been subject to court-ordered desegregation. It nonetheless employs the racial tiebreaker in an attempt to address the effects of racially identifiable housing patterns on school assignments. Most white students live in the northern part of Seattle, most students of other racial backgrounds in the southern part. Parents Involved VII, supra, at 1166. Four of Seattle’s high schools are located in the north—Ballard, Nathan Hale, Ingraham, and Roosevelt—and five in the south—Rainier Beach, Cleveland, West Seattle, Chief Sealth, and Franklin. One school— Garfield—is more or less in the center of Seattle. App. in No. 05–908, at 38a–39a, 45a.
For the 2000–2001 school year, five of these schools were oversubscribed—Ballard, Nathan Hale, Roosevelt, Garfield, and Franklin—so much so that 82 percent of incoming ninth graders ranked one of these schools as their first choice. Id., at 38a. Three of the oversubscribed schools were “integration positive” because the school’s white enrollment the previous school year was greater than 51 percent—Ballard, Nathan Hale, and Roosevelt. Thus, more nonwhite students (107, 27, and 82, respectively) who selected one of these three schools as a top choice received placement at the school than would have been the case had race not been considered, and proximity been the next tiebreaker. Id., at 39a–40a. Franklin was “integration positive” because its nonwhite enrollment the previous school year was greater than 69 percent; 89 more white students were assigned to Franklin by operation of the racial tiebreaker in the 2000–2001 school year than otherwise would have been. Ibid. Garfield was the only oversubscribed school whose composition during the 1999– 2000 school year was within the racial guidelines, although in previous years Garfield’s enrollment had been predominantly nonwhite, and the racial tiebreaker had been used to give preference to white students. Id., at 39a.

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Petitioner Parents Involved in Community Schools (Parents Involved) is a nonprofit corporation comprising the parents of children who have been or may be denied assignment to their chosen high school in the district because of their race. The concerns of Parents Involved are illustrated by Jill Kurfirst, who sought to enroll her ninth-grade son, Andy Meeks, in Ballard High School’s special Biotechnology Career Academy. Andy suffered from attention deficit hyperactivity disorder and dyslexia, but had made good progress with hands-on instruction, and his mother and middle school teachers thought that the smaller biotechnology program held the most promise for his continued success. Andy was accepted into this selective program but, because of the racial tiebreaker, was denied assignment to Ballard High School. Id., at 143a–146a, 152a–160a. Parents Involved commenced this suit in the Western District of Washington, alleging that Seattle’s use of race in assignments violated the Equal Protection Clause of the Fourteenth Amendment,4 Title VI of the Civil Rights Act of 1964,5 and the Washington Civil Rights Act.6 Id., at 28a–35a.
The District Court granted summary judgment to the school district, finding that state law did not bar the district’s use of the racial tiebreaker and that the plan survived strict scrutiny on the federal constitutional claim because it was narrowly tailored to serve a compelling
——————
4 “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U. S. Const., Amdt. 14, §1.
5 “No person in the United States shall, on the ground of race . . . be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 78 Stat. 252, 42 U. S. C. §2000d.
6 “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” Wash. Rev. Code §49.60.400(1) (2006).

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Opinion of the Court


government interest. 137 F. Supp. 2d 1224, 1240 (WD Wash. 2001) (Parents Involved I). The Ninth Circuit initially reversed based on its interpretation of the Washington Civil Rights Act, 285 F. 3d 1236, 1253 (2002) (Parents Involved II), and enjoined the district’s use of the integration tiebreaker, id., at 1257. Upon realizing that the litigation would not be resolved in time for assignment decisions for the 2002–2003 school year, the Ninth Circuit withdrew its opinion, 294 F. 3d 1084 (2002) (Parents Involved III), vacated the injunction, and, pursuant to Wash. Rev. Code §2.60.020 (2006), certified the state-law question to the Washington Supreme Court, 294 F. 3d 1085, 1087 (2002) (Parents Involved IV).
The Washington Supreme Court determined that the State Civil Rights Act bars only preferential treatment programs “where race or gender is used by government to select a less qualified applicant over a more qualified applicant,” and not “[p]rograms which are racially neutral, such as the [district’s] open choice plan.” Parents Involved in Community Schools v. Seattle School Dist., No. 1, 149 Wash. 2d 660, 689–690, 663, 72 P. 3d 151, 166, 153 (2003) (en banc) (Parents Involved V). The state court returned the case to the Ninth Circuit for further proceedings. Id., at 690, 72 P. 3d, at 167.
A panel of the Ninth Circuit then again reversed the District Court, this time ruling on the federal constitutional question. Parents Involved VI, 377 F. 3d 949 (2004). The panel determined that while achieving racial diversity and avoiding racial isolation are compelling government interests, id., at 964, Seattle’s use of the racial tiebreaker was not narrowly tailored to achieve these interests, id., at 980. The Ninth Circuit granted rehearing en banc, 395 F. 3d 1168 (2005), and overruled the panel decision, affirming the District Court’s determination that Seattle’s plan was narrowly tailored to serve a compelling government interest, Parents Involved VII, 426 F. 3d, at 1192–

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1193. We granted certiorari. 547 U. S. __ (2006).
B
Jefferson County Public Schools operates the public school system in metropolitan Louisville, Kentucky. In 1973 a federal court found that Jefferson County had maintained a segregated school system, Newburg Area Council, Inc. v. Board of Ed. of Jefferson Cty., 489 F. 2d 925, 932 (CA6), vacated and remanded, 418 U. S. 918, reinstated with modifications, 510 F. 2d 1358, 1359 (CA6 1974), and in 1975 the District Court entered a desegregation decree. See Hampton v. Jefferson Cty. Bd. of Ed., 72 F. Supp. 2d 753, 762–764 (WD Ky. 1999). Jefferson County operated under this decree until 2000, when the District Court dissolved the decree after finding that the district had achieved unitary status by eliminating “[t]o the greatest extent practicable” the vestiges of its prior policy of segregation. Hampton v. Jefferson Cty. Bd. of Ed., 102 F. Supp. 2d 358, 360 (2000). See Board of Ed. of Oklahoma City Public Schools v. Dowell, 498 U. S. 237, 249–250 (1991); Green v. School Bd. of New Kent Cty., 391 U. S. 430, 435–436 (1968).
In 2001, after the decree had been dissolved, Jefferson County adopted the voluntary student assignment plan at issue in this case. App. in No. 05–915, p. 77. Approximately 34 percent of the district’s 97,000 students are black; most of the remaining 66 percent are white. McFarland v. Jefferson Cty. Public Schools, 330 F. Supp. 2d 834, 839–840, and n. 6 (WD Ky. 2004) (McFarland I). The plan requires all nonmagnet schools to maintain a minimum black enrollment of 15 percent, and a maximum black enrollment of 50 percent. App. in No. 05–915, at 81; McFarland I, supra, at 842.
At the elementary school level, based on his or her address, each student is designated a “resides” school to which students within a specific geographic area are

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Opinion of the Court


assigned; elementary resides schools are “grouped into clusters in order to facilitate integration.” App. in No. 05– 915, at 82. The district assigns students to nonmagnet schools in one of two ways: Parents of kindergartners, first-graders, and students new to the district may submit an application indicating a first and second choice among the schools within their cluster; students who do not submit such an application are assigned within the cluster by the district. “Decisions to assign students to schools within each cluster are based on available space within the schools and the racial guidelines in the District’s current student assignment plan.” Id., at 38. If a school has reached the “extremes of the racial guidelines,” a student whose race would contribute to the school’s racial imbalance will not be assigned there. Id., at 38–39, 82. After assignment, students at all grade levels are permitted to apply to transfer between nonmagnet schools in the district. Transfers may be requested for any number of reasons, and may be denied because of lack of available space or on the basis of the racial guidelines. Id., at 43.7
When petitioner Crystal Meredith moved into the school district in August 2002, she sought to enroll her son, Joshua McDonald, in kindergarten for the 2002–2003 school year. His resides school was only a mile from his new home, but it had no available space—assignments had been made in May, and the class was full. Jefferson County assigned Joshua to another elementary school in his cluster, Young Elementary. This school was 10 miles from home, and Meredith sought to transfer Joshua to a school in a different cluster, Bloom Elementary, which—
——————
7 Middle and high school students are designated a single resides school and assigned to that school unless it is at the extremes of the racial guidelines. Students may also apply to a magnet school or program, or, at the high school level, take advantage of an open enrollment plan that allows ninth-grade students to apply for admission to any nonmagnet high school. App. in No. 05–915, pp. 39–41, 82–83.

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Opinion of the Court
like his resides school—was only a mile from home. See Tr. in McFarland I, pp. 1–49 through 1–54 (Dec. 8, 2003). Space was available at Bloom, and intercluster transfers are allowed, but Joshua’s transfer was nonetheless denied because, in the words of Jefferson County, “[t]he transfer would have an adverse effect on desegregation compliance” of Young. App. in No. 05–915, at 97.8
Meredith brought suit in the Western District of Kentucky, alleging violations of the Equal Protection Clause of the Fourteenth Amendment. The District Court found that Jefferson County had asserted a compelling interest in maintaining racially diverse schools, and that the assignment plan was (in all relevant respects) narrowly tailored to serve that compelling interest. McFarland I, supra, at 837.9 The Sixth Circuit affirmed in a per curiam opinion relying upon the reasoning of the District Court, concluding that a written opinion “would serve no useful purpose.” McFarland v. Jefferson Cty. Public Schools, 416 F. 3d 513, 514 (2005) (McFarland II). We granted certiorari. 547 U. S. __ (2006).
II
As a threshold matter, we must assure ourselves of our jurisdiction. Seattle argues that Parents Involved lacks standing because none of its current members can claim an imminent injury. Even if the district maintains the
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8 It is not clear why the racial guidelines were even applied to Joshua’s transfer application—the guidelines supposedly do not apply at the kindergarten level. Id., at 43. Neither party disputes, however, that Joshua’s transfer application was denied under the racial guidelines, and Meredith’s objection is not that the guidelines were misapplied but rather that race was used at all.
9 Meredith joined a pending lawsuit filed by several other plaintiffs. See id., at 7–11. The other plaintiffs all challenged assignments to certain specialized schools, and the District Court found these assignments, which are no longer at issue in this case, unconstitutional. McFarland I, 330 F. Supp. 2d 834, 837, 864 (WD Ky. 2004).

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current plan and reinstitutes the racial tiebreaker, Seattle argues, Parents Involved members will only be affected if their children seek to enroll in a Seattle public high school and choose an oversubscribed school that is integration positive—too speculative a harm to maintain standing. Brief for Respondents in No. 05–908, pp. 16–17.
This argument is unavailing. The group’s members have children in the district’s elementary, middle, and high schools, App. in No. 05–908, at 299a–301a; Affidavit of Kathleen Brose Pursuant to this Court’s Rule 32.3 (Lodging of Petitioner Parents Involved), and the complaint sought declaratory and injunctive relief on behalf of Parents Involved members whose elementary and middle school children may be “denied admission to the high schools of their choice when they apply for those schools in the future,” App. in No. 05–908, at 30a. The fact that it is possible that children of group members will not be denied admission to a school based on their race—because they choose an undersubscribed school or an oversubscribed school in which their race is an advantage—does not eliminate the injury claimed. Moreover, Parents Involved also asserted an interest in not being “forced to compete for seats at certain high schools in a system that uses race as a deciding factor in many of its admissions decisions.” Ibid. As we have held, one form of injury under the Equal Protection Clause is being forced to compete in a racebased system that may prejudice the plaintiff, Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 211 (1995); Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U. S. 656, 666 (1993), an injury that the members of Parents Involved can validly claim on behalf of their children.
In challenging standing, Seattle also notes that it has ceased using the racial tiebreaker pending the outcome of this litigation. Brief for Respondents in No. 05–908, at 16–17. But the district vigorously defends the constitu-

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tionality of its race-based program, and nowhere suggests that if this litigation is resolved in its favor it will not resume using race to assign students. Voluntary cessation does not moot a case or controversy unless “subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,” Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189 (2000) (quoting United States v. Concentrated Phosphate Export Assn., Inc., 393 U. S. 199, 203 (1968) (internal quotation marks omitted)), a heavy burden that Seattle has clearly not met.
Jefferson County does not challenge our jurisdiction, Tr. of Oral Arg. in No. 05–915, p. 48, but we are nonetheless obliged to ensure that it exists, Arbaugh v. Y & H Corp., 546 U. S. 500, 514 (2006). Although apparently Joshua has now been granted a transfer to Bloom, the school to which transfer was denied under the racial guidelines, Tr. of Oral Arg. in No. 05–915, at 45, the racial guidelines apply at all grade levels. Upon Joshua’s enrollment in middle school, he may again be subject to assignment based on his race. In addition, Meredith sought damages in her complaint, which is sufficient to preserve our ability to consider the question. Los Angeles v. Lyons, 461 U. S. 95, 109 (1983).
III 
 A 

It is well established that when the government distributes burdens or benefits on the basis of individual racial classifications, that action is reviewed under strict scrutiny. Johnson v. California, 543 U. S. 499, 505–506 (2005); Grutter v. Bollinger, 539 U. S. 306, 326 (2003); Adarand, supra, at 224. As the Court recently reaffirmed, “ ‘racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.’ ” Gratz v. Bollinger, 539 U. S. 244, 270

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Opinion of the Court


(2003) (quoting Fullilove v. Klutznick, 448 U. S. 448, 537 (1980) (STEVENS, J., dissenting); brackets omitted). In order to satisfy this searching standard of review, the school districts must demonstrate that the use of individual racial classifications in the assignment plans here under review is “narrowly tailored” to achieve a “compelling” government interest. Adarand, supra, at 227.
Without attempting in these cases to set forth all the interests a school district might assert, it suffices to note that our prior cases, in evaluating the use of racial classifications in the school context, have recognized two interests that qualify as compelling. The first is the compelling interest of remedying the effects of past intentional discrimination. See Freeman v. Pitts, 503 U. S. 467, 494 (1992). Yet the Seattle public schools have not shown that they were ever segregated by law, and were not subject to court-ordered desegregation decrees. The Jefferson County public schools were previously segregated by law and were subject to a desegregation decree entered in 1975. In 2000, the District Court that entered that decree dissolved it, finding that Jefferson County had “eliminated the vestiges associated with the former policy of segregation and its pernicious effects,” and thus had achieved “unitary” status. Hampton, 102 F. Supp. 2d, at 360. Jefferson County accordingly does not rely upon an interest in remedying the effects of past intentional discrimination in defending its present use of race in assigning students. See Tr. of Oral Arg. in No. 05–915, at 38.
Nor could it. We have emphasized that the harm being remedied by mandatory desegregation plans is the harm that is traceable to segregation, and that “the Constitution is not violated by racial imbalance in the schools, without more.” Milliken v. Bradley, 433 U. S. 267, 280, n. 14 (1977). See also Freeman, supra, at 495–496; Dowell, 498 U. S., at 248; Milliken v. Bradley, 418 U. S. 717, 746 (1974). Once Jefferson County achieved unitary status, it

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had remedied the constitutional wrong that allowed racebased assignments. Any continued use of race must be justified on some other basis.10
The second government interest we have recognized as compelling for purposes of strict scrutiny is the interest in diversity in higher education upheld in Grutter, 539 U. S., at 328. The specific interest found compelling in Grutter was student body diversity “in the context of higher education.” Ibid. The diversity interest was not focused on race alone but encompassed “all factors that may contribute to student body diversity.” Id., at 337. We described the various types of diversity that the law school sought:
“[The law school’s] policy makes clear there are many possible bases for diversity admissions, and provides examples of admittees who have lived or traveled widely abroad, are fluent in several languages, have

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10 The districts point to dicta in a prior opinion in which the Court suggested that, while not constitutionally mandated, it would be constitutionally permissible for a school district to seek racially balanced schools as a matter of “educational policy.” See Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1, 16 (1971). The districts also quote with approval an in-chambers opinion in which then-Justice Rehnquist made a suggestion to the same effect. See Bustop, Inc. v. Los Angeles Bd. of Ed., 439 U. S. 1380, 1383 (1978). The citations do not carry the significance the districts would ascribe to them. Swann, evaluating a school district engaged in court-ordered desegregation, had no occasion to consider whether a district’s voluntary adoption of race-based assignments in the absence of a finding of prior de jure segregation was constitutionally permissible, an issue that was again expressly reserved in Washington v. Seattle School Dist. No. 1, 458 U. S. 457, 472, n. 15 (1982). Bustop, addressing in the context of an emergency injunction application a busing plan imposed by the Superior Court of Los Angeles County, is similarly unavailing. Then-Justice Rehnquist, in denying emergency relief, stressed that “equitable consideration[s]” counseled against preliminary relief. 439 U. S., at 1383. The propriety of preliminary relief and resolution of the merits are of course “significantly different” issues. University of Texas v. Camenisch, 451 U. S. 390, 393 (1981).

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overcome personal adversity and family hardship, have exceptional records of extensive community service, and have had successful careers in other fields.” Id., at 338 (brackets and internal quotation marks omitted).

The Court quoted the articulation of diversity from Justice Powell’s opinion in Regents of the University of California v. Bakke, 438 U. S. 265 (1978), noting that “it is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups, that can justify the use of race.” Grutter, supra, at 324–325 (citing and quoting Bakke, supra, at 314–315 (opinion of Powell, J.); brackets and internal quotation marks omitted). Instead, what was upheld in Grutter was consideration of “a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” 539 U. S., at 325 (quoting Bakke, supra, at 315 (opinion of Powell, J.); internal quotation marks omitted).
The entire gist of the analysis in Grutter was that the admissions program at issue there focused on each applicant as an individual, and not simply as a member of a particular racial group. The classification of applicants by race upheld in Grutter was only as part of a “highly individualized, holistic review,” 539 U. S., at 337. As the Court explained, “[t]he importance of this individualized consideration in the context of a race-conscious admissions program is paramount.” Ibid. The point of the narrow tailoring analysis in which the Grutter Court engaged was to ensure that the use of racial classifications was indeed part of a broader assessment of diversity, and not simply an effort to achieve racial balance, which the Court explained would be “patently unconstitutional.” Id., at 330.
In the present cases, by contrast, race is not considered

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as part of a broader effort to achieve “exposure to widely diverse people, cultures, ideas, and viewpoints,” ibid.; race, for some students, is determinative standing alone. The districts argue that other factors, such as student preferences, affect assignment decisions under their plans, but under each plan when race comes into play, it is decisive by itself. It is not simply one factor weighed with others in reaching a decision, as in Grutter; it is the factor. Like the University of Michigan undergraduate plan struck down in Gratz, 539 U. S., at 275, the plans here “do not provide for a meaningful individualized review of applicants” but instead rely on racial classifications in a “nonindividualized, mechanical” way. Id., at 276, 280 (O’Connor, J., concurring).
Even when it comes to race, the plans here employ only a limited notion of diversity, viewing race exclusively in white/nonwhite terms in Seattle and black/“other” terms in Jefferson County.11 But see Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 610 (1990) (“We are a Nation not of black and white alone, but one teeming with divergent communities knitted together with various traditions and carried forth, above all, by individuals”) (O’Connor, J., dissenting). The Seattle “Board Statement Reaffirming Diversity Rationale” speaks of the “inherent educational value” in “[p]roviding students the opportunity to attend schools with diverse student enrollment,” App. in No. 05– 908, at 128a, 129a. But under the Seattle plan, a school with 50 percent Asian-American students and 50 percent white students but no African-American, NativeAmerican, or Latino students would qualify as balanced,
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11 The way Seattle classifies its students bears this out. Upon enrolling their child with the district, parents are required to identify their child as a member of a particular racial group. If a parent identifies more than one race on the form, “[t]he application will not be accepted and, if necessary, the enrollment service person taking the application will indicate one box.” App. in No. 05–908, at 303a.

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while a school with 30 percent Asian-American, 25 percent African-American, 25 percent Latino, and 20 percent white students would not. It is hard to understand how a plan that could allow these results can be viewed as being concerned with achieving enrollment that is “ ‘broadly diverse,’ ” Grutter, supra, at 329.
Prior to Grutter, the courts of appeals rejected as unconstitutional attempts to implement race-based assignment plans—such as the plans at issue here—in primary and secondary schools. See, e.g., Eisenberg v. Montgomery Cty. Public Schools, 197 F. 3d 123, 133 (CA4 1999); Tuttle v. Arlington Cty. School Bd., 195 F. 3d 698, 701 (CA4 1999); Wessman v. Gittens, 160 F. 3d 790, 809 (CA1 1998). See also Ho v. San Francisco Unified School Dist., 147 F. 3d 854, 865 (CA9 1998). After Grutter, however, the two Courts of Appeals in these cases, and one other, found that race-based assignments were permissible at the elementary and secondary level, largely in reliance on that case. See Parents Involved VII, 426 F. 3d, at 1166; McFarland II, 416 F. 3d, at 514; Comfort v. Lynn School Comm., 418 F. 3d 1, 13 (CA1 2005).
In upholding the admissions plan in Grutter, though, this Court relied upon considerations unique to institutions of higher education, noting that in light of “the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.” 539 U. S., at 329. See also Bakke, supra, at 312, 313 (opinion of Powell, J.). The Court explained that “[c]ontext matters” in applying strict scrutiny, and repeatedly noted that it was addressing the use of race “in the context of higher education.” Grutter, supra, at 327, 328, 334. The Court in Grutter expressly articulated key limitations on its holding— defining a specific type of broad-based diversity and noting the unique context of higher education—but these limitations were largely disregarded by the lower courts in

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extending Grutter to uphold race-based assignments in elementary and secondary schools. The present cases are not governed by Grutter.
B
Perhaps recognizing that reliance on Grutter cannot sustain their plans, both school districts assert additional interests, distinct from the interest upheld in Grutter, to justify their race-based assignments. In briefing and argument before this Court, Seattle contends that its use of race helps to reduce racial concentration in schools and to ensure that racially concentrated housing patterns do not prevent nonwhite students from having access to the most desirable schools. Brief for Respondents in No. 05– 908, at 19. Jefferson County has articulated a similar goal, phrasing its interest in terms of educating its students “in a racially integrated environment.” App. in No. 05–915, at 22.12 Each school district argues that educational and broader socialization benefits flow from a racially diverse learning environment, and each contends that because the diversity they seek is racial diversity— not the broader diversity at issue in Grutter—it makes sense to promote that interest directly by relying on race alone.
The parties and their amici dispute whether racial diversity in schools in fact has a marked impact on test scores and other objective yardsticks or achieves intangible socialization benefits. The debate is not one we need to
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12 Jefferson County also argues that it would be incongruous to hold that what was constitutionally required of it one day—race-based assignments pursuant to the desegregation decree—can be constitutionally prohibited the next. But what was constitutionally required of the district prior to 2000 was the elimination of the vestiges of prior segregation—not racial proportionality in its own right. See Freeman v. Pitts, 503 U. S. 467, 494–496 (1992). Once those vestiges were eliminated, Jefferson County was on the same footing as any other school district, and its use of race must be justified on other grounds.

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resolve, however, because it is clear that the racial classifications employed by the districts are not narrowly tailored to the goal of achieving the educational and social benefits asserted to flow from racial diversity. In design and operation, the plans are directed only to racial balance, pure and simple, an objective this Court has repeatedly condemned as illegitimate.
The plans are tied to each district’s specific racial demographics, rather than to any pedagogic concept of the level of diversity needed to obtain the asserted educational benefits. In Seattle, the district seeks white enrollment of between 31 and 51 percent (within 10 percent of “the district white average” of 41 percent), and nonwhite enrollment of between 49 and 69 percent (within 10 percent of “the district minority average” of 59 percent). App. in No. 05–908, at 103a. In Jefferson County, by contrast, the district seeks black enrollment of no less than 15 or more than 50 percent, a range designed to be “equally above and below Black student enrollment systemwide,” McFarland I, 330 F. Supp. 2d, at 842, based on the objective of achieving at “all schools . . . an African-American enrollment equivalent to the average district-wide African-American enrollment” of 34 percent. App. in No. 05– 915, at 81. In Seattle, then, the benefits of racial diversity require enrollment of at least 31 percent white students; in Jefferson County, at least 50 percent. There must be at least 15 percent nonwhite students under Jefferson County’s plan; in Seattle, more than three times that figure. This comparison makes clear that the racial demographics in each district—whatever they happen to be— drive the required “diversity” numbers. The plans here are not tailored to achieving a degree of diversity necessary to realize the asserted educational benefits; instead the plans are tailored, in the words of Seattle’s Manager of Enrollment Planning, Technical Support, and Demographics, to “the goal established by the school board of attain-

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ing a level of diversity within the schools that approximates the district’s overall demographics.” App. in No. 05–908, at 42a.
The districts offer no evidence that the level of racial diversity necessary to achieve the asserted educational benefits happens to coincide with the racial demographics of the respective school districts—or rather the white/nonwhite or black/“other” balance of the districts, since that is the only diversity addressed by the plans. Indeed, in its brief Seattle simply assumes that the educational benefits track the racial breakdown of the district. See Brief for Respondents in No. 05–908, at 36 (“For Seattle, ‘racial balance’ is clearly not an end in itself but rather a measure of the extent to which the educational goals the plan was designed to foster are likely to be achieved”). When asked for “a range of percentage that would be diverse,” however, Seattle’s expert said it was important to have “sufficient numbers so as to avoid students feeling any kind of specter of exceptionality.” App. in No. 05–908, at 276a. The district did not attempt to defend the proposition that anything outside its range posed the “specter of exceptionality.” Nor did it demonstrate in any way how the educational and social benefits of racial diversity or avoidance of racial isolation are more likely to be achieved at a school that is 50 percent white and 50 percent AsianAmerican, which would qualify as diverse under Seattle’s plan, than at a school that is 30 percent Asian-American, 25 percent African-American, 25 percent Latino, and 20 percent white, which under Seattle’s definition would be racially concentrated.
Similarly, Jefferson County’s expert referred to the importance of having “at least 20 percent” minority group representation for the group “to be visible enough to make a difference,” and noted that “small isolated minority groups in a school are not likely to have a strong effect on the overall school.” App. in No. 05–915, at 159, 147. The

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Jefferson County plan, however, is based on a goal of replicating at each school “an African-American enrollment equivalent to the average district-wide AfricanAmerican enrollment.” Id., at 81. Joshua McDonald’s requested transfer was denied because his race was listed as “other” rather than black, and allowing the transfer would have had an adverse effect on the racial guideline compliance of Young Elementary, the school he sought to leave. Id., at 21. At the time, however, Young Elementary was 46.8 percent black. Id., at 73. The transfer might have had an adverse effect on the effort to approach district-wide racial proportionality at Young, but it had nothing to do with preventing either the black or “other” group from becoming “small” or “isolated” at Young.
In fact, in each case the extreme measure of relying on race in assignments is unnecessary to achieve the stated goals, even as defined by the districts. For example, at Franklin High School in Seattle, the racial tiebreaker was applied because nonwhite enrollment exceeded 69 percent, and resulted in an incoming ninth-grade class in 2000– 2001 that was 30.3 percent Asian-American, 21.9 percent African-American, 6.8 percent Latino, 0.5 percent NativeAmerican, and 40.5 percent Caucasian. Without the racial tiebreaker, the class would have been 39.6 percent AsianAmerican, 30.2 percent African-American, 8.3 percent Latino, 1.1 percent Native-American, and 20.8 percent Caucasian. See App. in No. 05–908, at 308a. When the actual racial breakdown is considered, enrolling students without regard to their race yields a substantially diverse student body under any definition of diversity.13
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13 Data for the Seattle schools in the several years since this litigation was commenced further demonstrate the minimal role that the racial tiebreaker in fact played. At Ballard, in 2005–2006—when no class at the school was subject to the racial tiebreaker—the student body was 14.2 percent Asian-American, 9 percent African-American, 11.7 percent Latino, 62.3 percent Caucasian, and 2.8 percent Native-American.

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In Grutter, the number of minority students the school sought to admit was an undefined “meaningful number” necessary to achieve a genuinely diverse student body. 539 U. S., at 316, 335–336. Although the matter was the subject of disagreement on the Court, see id., at 346–347 (SCALIA, J., concurring in part and dissenting in part); id., at 382–383 (Rehnquist, C. J., dissenting); id., at 388–392 (KENNEDY, J., dissenting), the majority concluded that the law school did not count back from its applicant pool to arrive at the “meaningful number” it regarded as necessary to diversify its student body. Id., at 335–336. Here the racial balance the districts seek is a defined range set solely by reference to the demographics of the respective school districts.
This working backward to achieve a particular type of racial balance, rather than working forward from some demonstration of the level of diversity that provides the purported benefits, is a fatal flaw under our existing precedent. We have many times over reaffirmed that “[r]acial balance is not to be achieved for its own sake.”
——————
Reply Brief for Petitioner in No. 05–908, p. 7. In 2000–2001, when the racial tiebreaker was last used, Ballard’s total enrollment was 17.5 percent Asian-American, 10.8 percent African-American, 10.7 percent Latino, 56.4 percent Caucasian, and 4.6 percent Native-American. App. in No. 05–908, at 283a. Franklin in 2005–2006 was 48.9 percent Asian-American, 33.5 percent African-American, 6.6 percent Latino, 10.2 percent Caucasian, and 0.8 percent Native-American. Reply Brief for Petitioner in No. 05–908, at 7. With the racial tiebreaker in 2000– 2001, total enrollment was 36.8 percent Asian-American, 32.2 percent African-American, 5.2 percent Latino, 25.1 percent Caucasian, and 0.7 percent Native-American. App. in No. 05–908, at 284a. Nathan Hale’s 2005–2006 enrollment was 17.3 percent Asian-American, 10.7 percent African-American, 8 percent Latino, 61.5 percent Caucasian, and 2.5 percent Native-American. Reply Brief for Petitioner in No. 05–908, at 7. In 2000–2001, with the racial tiebreaker, it was 17.9 percent AsianAmerican, 13.3 percent African-American, 7 percent Latino, 58.4 percent Caucasian, and 3.4 percent Native-American. App. in No. 05– 908, at 286a.

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Freeman, 503 U. S., at 494. See also Richmond v. J. A. Croson Co., 488 U. S. 469, 507 (1989); Bakke, 438 U. S., at 307 (opinion of Powell, J.) (“If petitioner’s purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected . . . as facially invalid”). Grutter itself reiterated that “outright racial balancing” is “patently unconstitutional.” 539 U. S., at 330.
Accepting racial balancing as a compelling state interest would justify the imposition of racial proportionality throughout American society, contrary to our repeated recognition that “[a]t the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.” Miller v. Johnson, 515 U. S. 900, 911 (1995) (quoting Metro Broadcasting, 497 U. S., at 602 (O’Connor, J., dissenting); internal quotation marks omitted).14 Allowing racial balancing as a compelling end in itself would “effectively assur[e] that race will always be relevant in American life, and that the ‘ultimate goal’ of ‘eliminating entirely from governmental decisionmaking such irrelevant factors as a human being’s race’ will never be achieved.” Croson, supra, at 495 (plurality opinion of O’Connor, J.) (quoting Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 320 (1986) (STEVENS, J., dissenting), in turn quoting Fullilove,
——————
14 In contrast, Seattle’s website formerly described “emphasizing individualism as opposed to a more collective ideology” as a form of “cultural racism,” and currently states that the district has no intention “to hold onto unsuccessful concepts such as [a] . . . colorblind mentality.” Harrell, School Web Site Removed: Examples of Racism Sparked Controversy, Seattle Post-Intelligencer, June 2, 2006, pp. B1, B5. Compare Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (Harlan, J., dissenting) (“Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law”).

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448 U. S., at 547 (STEVENS, J., dissenting); brackets and citation omitted). An interest “linked to nothing other than proportional representation of various races . . . would support indefinite use of racial classifications, employed first to obtain the appropriate mixture of racial views and then to ensure that the [program] continues to reflect that mixture.” Metro Broadcasting, supra, at 614 (O’Connor, J., dissenting).
The validity of our concern that racial balancing has “no logical stopping point,” Croson, supra, at 498 (quoting Wygant, supra, at 275 (plurality opinion); internal quotation marks omitted); see also Grutter, supra, at 343, is demonstrated here by the degree to which the districts tie their racial guidelines to their demographics. As the districts’ demographics shift, so too will their definition of racial diversity. See App. in No. 05–908, at 103a (describing application of racial tiebreaker based on “current white percentage” of 41 percent and “current minority percentage” of 59 percent (emphasis added)).
The Ninth Circuit below stated that it “share[d] in the hope” expressed in Grutter that in 25 years racial preferences would no longer be necessary to further the interest identified in that case. Parents Involved VII, 426 F. 3d, at 1192. But in Seattle the plans are defended as necessary to address the consequences of racially identifiable housing patterns. The sweep of the mandate claimed by the district is contrary to our rulings that remedying past societal discrimination does not justify race-conscious government action. See, e.g., Shaw v. Hunt, 517 U. S. 899, 909–910 (1996) (“[A]n effort to alleviate the effects of societal discrimination is not a compelling interest”); Croson, supra, at 498–499; Wygant, 476 U. S., at 276 (plurality opinion) (“Societal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy”); id., at 288 (O’Connor, J., concurring in part and concurring in judgment) (“[A] governmental agency’s

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interest in remedying ‘societal’ discrimination, that is, discrimination not traceable to its own actions, cannot be deemed sufficiently compelling to pass constitutional muster”).
The principle that racial balancing is not permitted is one of substance, not semantics. Racial balancing is not transformed from “patently unconstitutional” to a compelling state interest simply by relabeling it “racial diversity.” While the school districts use various verbal formulations to describe the interest they seek to promote—racial diversity, avoidance of racial isolation, racial integration— they offer no definition of the interest that suggests it differs from racial balance. See, e.g., App. in No. 05–908, at 257a (“Q. What’s your understanding of when a school suffers from racial isolation? A. I don’t have a definition for that”); id., at 228a–229a (“I don’t think we’ve ever sat down and said, ‘Define racially concentrated school exactly on point in quantitative terms.’ I don’t think we’ve ever had that conversation”); Tr. in McFarland I, at 1–90 (Dec. 8, 2003) (“Q. How does the Jefferson County School Board define diversity . . . ?” “A. Well, we want to have the schools that make up the percentage of students of the population”).
Jefferson County phrases its interest as “racial integration,” but integration certainly does not require the sort of racial proportionality reflected in its plan. Even in the context of mandatory desegregation, we have stressed that racial proportionality is not required, see Milliken, 433 U. S., at 280, n. 14 (“[A desegregation] order contemplating the substantive constitutional right [to a] particular degree of racial balance or mixing is . . . infirm as a matter of law” (internal quotation marks omitted)); Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1, 24 (1971) (“The constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system

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as a whole”), and here Jefferson County has already been found to have eliminated the vestiges of its prior segregated school system.
The en banc Ninth Circuit declared that “when a racially diverse school system is the goal (or racial concentration or isolation is the problem), there is no more effective means than a consideration of race to achieve the solution.” Parents Involved VII, supra, at 1191. For the foregoing reasons, this conclusory argument cannot sustain the plans. However closely related race-based assignments may be to achieving racial balance, that itself cannot be the goal, whether labeled “racial diversity” or anything else. To the extent the objective is sufficient diversity so that students see fellow students as individuals rather than solely as members of a racial group, using means that treat students solely as members of a racial group is fundamentally at cross-purposes with that end.
C
The districts assert, as they must, that the way in which they have employed individual racial classifications is necessary to achieve their stated ends. The minimal effect these classifications have on student assignments, however, suggests that other means would be effective. Seattle’s racial tiebreaker results, in the end, only in shifting a small number of students between schools. Approximately 307 student assignments were affected by the racial tiebreaker in 2000–2001; the district was able to track the enrollment status of 293 of these students. App. in No. 05–908, at 162a. Of these, 209 were assigned to a school that was one of their choices, 87 of whom were assigned to the same school to which they would have been assigned without the racial tiebreaker. Eighty-four students were assigned to schools that they did not list as a choice, but 29 of those students would have been assigned to their respective school without the racial tiebreaker, and 3 were

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able to attend one of the oversubscribed schools due to waitlist and capacity adjustments. Id., at 162a–163a. In over one-third of the assignments affected by the racial tiebreaker, then, the use of race in the end made no difference, and the district could identify only 52 students who were ultimately affected adversely by the racial tiebreaker in that it resulted in assignment to a school they had not listed as a preference and to which they would not otherwise have been assigned.
As the panel majority in Parents Involved VI concluded:
“[T]he tiebreaker’s annual effect is thus merely to shuffle a few handfuls of different minority students between a few schools—about a dozen additional Latinos into Ballard, a dozen black students into Nathan Hale, perhaps two dozen Asians into Roosevelt, and so on. The District has not met its burden of proving these marginal changes . . . outweigh the cost of subjecting hundreds of students to disparate treatment based solely upon the color of their skin.” 377 F. 3d, at 984–985 (footnote omitted).

Similarly, Jefferson County’s use of racial classifications has only a minimal effect on the assignment of students. Elementary school students are assigned to their first- or second-choice school 95 percent of the time, and transfers, which account for roughly 5 percent of assignments, are only denied 35 percent of the time—and presumably an even smaller percentage are denied on the basis of the racial guidelines, given that other factors may lead to a denial. McFarland I, 330 F. Supp. 2d, at 844–845, nn. 16, 18. Jefferson County estimates that the racial guidelines account for only 3 percent of assignments. Brief in Opposition in No. 05–915, p. 7, n. 4; Tr. of Oral Arg. in No. 05– 915, at 46. As Jefferson County explains, “the racial guidelines have minimal impact in this process, because they ‘mostly influence student assignment in subtle and

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indirect ways.’ ” Brief for Respondents in No. 05–915, pp. 8–9.
While we do not suggest that greater use of race would be preferable, the minimal impact of the districts’ racial classifications on school enrollment casts doubt on the necessity of using racial classifications. In Grutter, the consideration of race was viewed as indispensable in more than tripling minority representation at the law school— from 4 to 14.5 percent. See 539 U. S., at 320. Here the most Jefferson County itself claims is that “because the guidelines provide a firm definition of the Board’s goal of racially integrated schools, they ‘provide administrators with the authority to facilitate, negotiate and collaborate with principals and staff to maintain schools within the 15–50% range.’ ” Brief in Opposition in No. 05–915, at 7 (quoting McFarland I, supra, at 842). Classifying and assigning schoolchildren according to a binary conception of race is an extreme approach in light of our precedents and our Nation’s history of using race in public schools, and requires more than such an amorphous end to justify it.
The districts have also failed to show that they considered methods other than explicit racial classifications to achieve their stated goals. Narrow tailoring requires “serious, good faith consideration of workable race-neutral alternatives,” Grutter, supra, at 339, and yet in Seattle several alternative assignment plans—many of which would not have used express racial classifications—were rejected with little or no consideration. See, e.g., App. in No. 05–908, at 224a–225a, 253a–259a, 307a. Jefferson County has failed to present any evidence that it considered alternatives, even though the district already claims that its goals are achieved primarily through means other than the racial classifications. Brief for Respondents in No. 05–915, at 8–9. Compare Croson, 488 U. S., at 519 (KENNEDY, J., concurring in part and concurring in judg-

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ment) (racial classifications permitted only “as a last resort”).

IV
JUSTICE BREYER’s dissent takes a different approach to these cases, one that fails to ground the result it would reach in law. Instead, it selectively relies on inapplicable precedent and even dicta while dismissing contrary holdings, alters and misapplies our well-established legal framework for assessing equal protection challenges to express racial classifications, and greatly exaggerates the consequences of today’s decision.
To begin with, JUSTICE BREYER seeks to justify the plans at issue under our precedents recognizing the compelling interest in remedying past intentional discrimination. See post, at 18–24. Not even the school districts go this far, and for good reason. The distinction between segregation by state action and racial imbalance caused by other factors has been central to our jurisprudence in this area for generations. See, e.g., Milliken, 433 U. S., at 280, n. 14; Freeman, 503 U. S., at 495–496 (“Where resegregation is a product not of state action but of private choices, it does not have constitutional implications”). The dissent elides this distinction between de jure and de facto segregation, casually intimates that Seattle’s school attendance patterns reflect illegal segregation, post, at 5, 18, 23,15 and

——————
15 JUSTICE BREYER makes much of the fact that in 1978 Seattle “settled” an NAACP complaint alleging illegal segregation with the federal Office for Civil Rights (OCR). See post, at 5, 8–9, 18, 23. The memorandum of agreement between Seattle and OCR, of course, contains no admission by Seattle that such segregation ever existed or was ongoing at the time of the agreement, and simply reflects a “desire to avoid the incovenience [sic] and expense of a formal OCR investigation,” which OCR was obligated under law to initiate upon the filing of such a complaint. Memorandum of Agreement between Seattle School District No. 1 of King County, Washington, and the Office for Civil Rights, United States Department of Health, Education, and Welfare 2 (June 9,

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fails to credit the judicial determination—under the most rigorous standard—that Jefferson County had eliminated the vestiges of prior segregation. The dissent thus alters in fundamental ways not only the facts presented here but the established law.
JUSTICE BREYER’s reliance on McDaniel v. Barresi, 402 U. S. 39 (1971), post, at 23–24, 29–30, highlights how far removed the discussion in the dissent is from the question actually presented in these cases. McDaniel concerned a Georgia school system that had been segregated by law. There was no doubt that the county had operated a “dual school system,” McDaniel, supra, at 41, and no one questions that the obligation to disestablish a school system segregated by law can include race-conscious remedies— whether or not a court had issued an order to that effect. See supra, at 12. The present cases are before us, however, because the Seattle school district was never segregated by law, and the Jefferson County district has been found to be unitary, having eliminated the vestiges of its prior dual status. The justification for race-conscious remedies in McDaniel is therefore not applicable here. The dissent’s persistent refusal to accept this distinction— its insistence on viewing the racial classifications here as if they were just like the ones in McDaniel, “devised to overcome a history of segregated public schools,” post, at 47—explains its inability to understand why the remedial justification for racial classifications cannot decide these cases.
JUSTICE BREYER’s dissent next relies heavily on dicta from Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S., at 16—far more heavily than the school districts themselves. Compare post, at 3, 22–28, with Brief for Respondents in No. 05–908, at 19–20; Brief for Respondents in No. 05–915, at 31. The dissent acknowledges that
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1978); see also 45 CFR §80.7(c) (2006). 


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the two-sentence discussion in Swann was pure dicta, post, at 22, but nonetheless asserts that it demonstrates a “basic principle of constitutional law” that provides “authoritative legal guidance.” Post, at 22, 30. Initially, as the Court explained just last Term, “we are not bound to follow our dicta in a prior case in which the point now at issue was not fully debated.” Central Va. Community College v. Katz, 546 U. S. 356, 363 (2006). That is particularly true given that, when Swann was decided, this Court had not yet confirmed that strict scrutiny applies to racial classifications like those before us. See n. 16, infra. There is nothing “technical” or “theoretical,” post, at 30, about our approach to such dicta. See, e.g., Cohens v. Virginia, 6 Wheat. 264, 399–400 (1821) (Marshall, C. J.) (explaining why dicta is not binding).
JUSTICE BREYER would not only put such extraordinary weight on admitted dicta, but relies on the statement for something it does not remotely say. Swann addresses only a possible state objective; it says nothing of the permissible means—race conscious or otherwise—that a school district might employ to achieve that objective. The reason for this omission is clear enough, since the case did not involve any voluntary means adopted by a school district. The dissent’s characterization of Swann as recognizing that “the Equal Protection Clause permits local school boards to use race-conscious criteria to achieve positive race-related goals” is—at best—a dubious inference. Post, at 22. Even if the dicta from Swann were entitled to the weight the dissent would give it, and no dicta is, it not only did not address the question presented in Swann, it also does not address the question presented in these cases—whether the school districts’ use of racial classifications to achieve their stated goals is permissible.
Further, for all the lower court cases JUSTICE BREYER cites as evidence of the “prevailing legal assumption” embodied by Swann, very few are pertinent. Most are not.

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For example, the dissent features Tometz v. Board of Ed., Waukegan City School Dist. No. 61, 39 Ill. 2d 593, 596– 598, 237 N. E. 2d 498, 500–502 (1968), an Illinois decision, as evidence that “state and federal courts had considered the matter settled and uncontroversial.” Post, at 25. But Tometz addressed a challenge to a statute requiring raceconsciousness in drawing school attendance boundaries— an issue well beyond the scope of the question presented in these cases. Importantly, it considered that issue only under rational-basis review, 39 Ill. 2d, at 600, 237 N. E. 2d, at 502 (“The test of any legislative classification essentially is one of reasonableness”), which even the dissent grudgingly recognizes is an improper standard for evaluating express racial classifications. Other cases cited are similarly inapplicable. See, e.g., Citizens for Better Ed. v. Goose Creek Consol. Independent School Dist., 719 S. W. 2d 350, 352–353 (Tex. App. 1986) (upholding rezoning plan under rational-basis review).16
——————
16 In fact, all the cases JUSTICE BREYER’s dissent cites as evidence of the “prevailing legal assumption,” see post, at 25–27, were decided before this Court definitively determined that “all racial classifications . . . must be analyzed by a reviewing court under strict scrutiny.” Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 227 (1995). Many proceeded under the now-rejected view that classifications seeking to benefit a disadvantaged racial group should be held to a lesser standard of review. See, e.g., Springfield School Comm. v. Barksdale, 348 F. 2d 261, 266 (CA1 1965). Even if this purported distinction, which JUSTICE STEVENS would adopt, post, at 2, n. 3 (dissenting opinion), had not been already rejected by this Court, the distinction has no relevance to these cases, in which students of all races are excluded from the schools they wish to attend based solely on the racial classifications. See, e.g., App. in No. 05–908, at 202a (noting that 89 nonwhite students were denied assignment to a particular school by operation of Seattle’s racial tiebreaker).
JUSTICE STEVENS’s reliance on School Comm. of Boston v. Board of Ed., 352 Mass. 693, 227 N. E. 2d 729 (1967), appeal dism’d, 389 U. S. 572 (1968) (per curiam), post, at 3–5, is inapposite for the same reason that many of the cases cited by JUSTICE BREYER are inapposite; the case involved a Massachusetts law that required school districts to avoid

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JUSTICE BREYER’s dissent next looks for authority to a footnote in Washington v. Seattle School Dist. No. 1, 458 U. S. 457, 472, n. 15 (1982), post, at 56–57, but there this Court expressly noted that it was not passing on the propriety of race-conscious student assignments in the absence of a finding of de jure segregation. Similarly, the citation of Crawford v. Board of Ed. of Los Angeles, 458 U. S. 527 (1982), post, at 24, in which a state referendum prohibiting a race-based assignment plan was challenged, is inapposite—in Crawford the Court again expressly reserved the question presented by these cases. 458 U. S., at 535, n. 11. Such reservations and preliminary analyses of course did not decide the merits of this question—as evidenced by the disagreement among the lower courts on this issue. Compare Eisenberg, 197 F. 3d, at 133, with Comfort, 418 F. 3d, at 13.
JUSTICE BREYER’s dissent also asserts that these cases are controlled by Grutter, claiming that the existence of a compelling interest in these cases “follows a fortiori” from Grutter, post, at 41, 64–66, and accusing us of tacitly

——————
racial imbalance in schools but did not specify how to achieve this goal—and certainly did not require express racial classifications as the means to do so. The law was upheld under rational-basis review, with the state court explicitly rejecting the suggestion—which is now plainly the law—that “racial group classifications bear a far heavier burden of justification.” 352 Mass., at 700, 227 N. E. 2d, at 734 (internal quotation marks and citation omitted). The passage JUSTICE STEVENS quotes proves our point; all the quoted language says is that the school committee “shall prepare a plan to eliminate the imbalance.” Id., at 695, 227 N. E. 2d, at 731; see post, at 4, n. 5. Nothing in the opinion approves use of racial classifications as the means to address the imbalance. The suggestion that our decision today is somehow inconsistent with our disposition of that appeal is belied by the fact that neither the lower courts, the respondent school districts, nor any of their 51 amici saw fit even to cite the case. We raise this fact not to argue that the dismissal should be afforded any different stare decisis effect, but rather simply to suggest that perhaps—for the reasons noted above— the dismissal does not mean what JUSTICE STEVENS believes it does.

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overruling that case, see post, at 64–66. The dissent overreads Grutter, however, in suggesting that it renders pure racial balancing a constitutionally compelling interest; Grutter itself recognized that using race simply to achieve racial balance would be “patently unconstitutional,” 539 U. S., at 330. The Court was exceedingly careful in describing the interest furthered in Grutter as “not an interest in simple ethnic diversity” but rather a “far broader array of qualifications and characteristics” in which race was but a single element. 539 U. S., at 324–325 (internal quotation marks omitted). We take the Grutter Court at its word. We simply do not understand how JUSTICE BREYER can maintain that classifying every schoolchild as black or white, and using that classification as a determinative factor in assigning children to achieve pure racial balance, can be regarded as “less burdensome, and hence more narrowly tailored” than the consideration of race in Grutter, post, at 47, when the Court in Grutter stated that “[t]he importance of . . . individualized consideration” in the program was “paramount,” and consideration of race was one factor in a “highly individualized, holistic review.” 539 U. S., at 337. Certainly if the constitutionality of the stark use of race in these cases were as established as the dissent would have it, there would have been no need for the extensive analysis undertaken in Grutter. In light of the foregoing, JUSTICE BREYER’s appeal to stare decisis rings particularly hollow. See post, at 65–66.
At the same time it relies on inapplicable desegregation cases, misstatements of admitted dicta, and other noncontrolling pronouncements, JUSTICE BREYER’s dissent candidly dismisses the significance of this Court’s repeated holdings that all racial classifications must be reviewed under strict scrutiny, see post, at 31–33, 35–36, arguing that a different standard of review should be applied because the districts use race for beneficent rather than malicious purposes, see post, at 31–36.

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This Court has recently reiterated, however, that “ ‘all racial classifications [imposed by government] . . . must be analyzed by a reviewing court under strict scrutiny.’ ” Johnson, 543 U. S., at 505 (quoting Adarand, 515 U. S., at 227; emphasis added by Johnson Court). See also Grutter, supra, at 326 (“[G]overnmental action based on race—a group classification long recognized as in most circumstances irrelevant and therefore prohibited—should be subjected to detailed judicial inquiry” (internal quotation marks and emphasis omitted)). JUSTICE BREYER nonetheless relies on the good intentions and motives of the school districts, stating that he has found “no case that . . . repudiated this constitutional asymmetry between that which seeks to exclude and that which seeks to include members of minority races.” Post, at 29 (emphasis in original). We have found many. Our cases clearly reject the argument that motives affect the strict scrutiny analysis. See Johnson, supra, at 505 (“We have insisted on strict scrutiny in every context, even for so-called ‘benign’ racial classifications”); Adarand, 515 U. S., at 227 (rejecting idea that “ ‘benign’ ” racial classifications may be held to “different standard”); Croson, 488 U. S., at 500 (“Racial classifications are suspect, and that means that simple legislative assurances of good intention cannot suffice”).
This argument that different rules should govern racial classifications designed to include rather than exclude is not new; it has been repeatedly pressed in the past, see, e.g., Gratz, 539 U. S., at 282 (BREYER, J., concurring in judgment); id., at 301 (GINSBURG, J., dissenting); Adarand, supra, at 243 (STEVENS, J., dissenting); Wygant, 476 U. S., at 316–317 (STEVENS, J., dissenting), and has been repeatedly rejected. See also Bakke, 438 U. S., at 289–291 (opinion of Powell, J.) (rejecting argument that strict scrutiny should be applied only to classifications that disadvantage minorities, stating “[r]acial and ethnic distinctions of any sort are inherently suspect and thus call

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for the most exacting judicial examination”). The reasons for rejecting a motives test for racial classi-
fications are clear enough. “The Court’s emphasis on ‘benign racial classifications’ suggests confidence in its ability to distinguish good from harmful governmental uses of racial criteria. History should teach greater humility. . . . ‘[B]enign’ carries with it no independent meaning, but reflects only acceptance of the current generation’s conclusion that a politically acceptable burden, imposed on particular citizens on the basis of race, is reasonable.” Metro Broadcasting, 497 U. S., at 609–610 (O’Connor, J., dissenting). See also Adarand, supra, at 226 (“ ‘[I]t may not always be clear that a so-called preference is in fact benign’ ” (quoting Bakke, supra, at 298 (opinion of Powell, J.))). Accepting JUSTICE BREYER’s approach would “do no more than move us from ‘separate but equal’ to ‘unequal but benign.’ ” Metro Broadcasting, supra, at 638 (KENNEDY, J., dissenting).
JUSTICE BREYER speaks of bringing “the races” together (putting aside the purely black-and-white nature of the plans), as the justification for excluding individuals on the basis of their race. See post, at 28–29. Again, this approach to racial classifications is fundamentally at odds with our precedent, which makes clear that the Equal Protection Clause “protect[s] persons, not groups,” Adarand, 515 U. S., at 227 (emphasis in original). See ibid. (“[A]ll governmental action based on race—a group classification long recognized as ‘in most circumstances irrelevant and therefore prohibited,’ Hirabayashi [v. United States, 320 U. S. 81, 100 (1943)]—should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed” (first emphasis in original); Metro Broadcasting, supra, at 636 (“[O]ur Constitution protects each citizen as an individual, not as a member of a group” (KENNEDY, J., dissenting)); Bakke, supra, at 289 (opinion of Powell, J.) (Four-

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teenth Amendment creates rights “guaranteed to the individual. The rights established are personal rights”). This fundamental principle goes back, in this context, to Brown itself. See Brown v. Board of Education, 349 U. S. 294, 300 (1955) (Brown II) (“At stake is the personal interest of the plaintiffs in admission to public schools . . . on a nondiscriminatory basis” (emphasis added)). For the dissent, in contrast, “ ‘individualized scrutiny’ is simply beside the point.” Post, at 55.
JUSTICE BREYER’s position comes down to a familiar claim: The end justifies the means. He admits that “there is a cost in applying ‘a state-mandated racial label,’ ” post, at 67, but he is confident that the cost is worth paying. Our established strict scrutiny test for racial classifications, however, insists on “detailed examination, both as to ends and as to means.” Adarand, supra, at 236 (emphasis added). Simply because the school districts may seek a worthy goal does not mean they are free to discriminate on the basis of race to achieve it, or that their racial classifications should be subject to less exacting scrutiny.
Despite his argument that these cases should be evaluated under a “standard of review that is not ‘strict’ in the traditional sense of that word,” post, at 36, JUSTICE BREYER still purports to apply strict scrutiny to these cases. See post, at 37. It is evident, however, that JUSTICE BREYER’s brand of narrow tailoring is quite unlike anything found in our precedents. Without any detailed discussion of the operation of the plans, the students who are affected, or the districts’ failure to consider race-neutral alternatives, the dissent concludes that the districts have shown that these racial classifications are necessary to achieve the districts’ stated goals. This conclusion is divorced from any evaluation of the actual impact of the plans at issue in these cases—other than to

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note that the plans “often have no effect.” Post, at 46.17 Instead, the dissent suggests that some combination of the development of these plans over time, the difficulty of the endeavor, and the good faith of the districts suffices to demonstrate that these stark and controlling racial classifications are constitutional. The Constitution and our precedents require more.
In keeping with his view that strict scrutiny should not apply, JUSTICE BREYER repeatedly urges deference to local school boards on these issues. See, e.g., post, at 21, 48–49, 66. Such deference “is fundamentally at odds with our equal protection jurisprudence. We put the burden on state actors to demonstrate that their race-based policies are justified.” Johnson, 543 U. S., at 506, n. 1. See Croson, 488 U. S., at 501 (“The history of racial classifications in this country suggests that blind judicial deference to legislative or executive pronouncements of necessity has no place in equal protection analysis”); West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 637 (1943) (“The Fourteenth Amendment . . . protects the citizen against the State itself and all of its creatures—Boards of Education not excepted”).
JUSTICE BREYER’s dissent ends on an unjustified note of alarm. It predicts that today’s decision “threaten[s]” the validity of “[h]undreds of state and federal statutes and regulations.” Post, at 61; see also post, at 27–28. But the
——————
17 JUSTICE BREYER also tries to downplay the impact of the racial assignments by stating that in Seattle “students can decide voluntarily to transfer to a preferred district high school (without any consideration of race-conscious criteria).” Post, at 46. This presumably refers to the district’s decision to cease, for 2001–2002 school year assignments, applying the racial tiebreaker to students seeking to transfer to a different school after ninth grade. See App. in No. 05–908, at 137a– 139a. There are obvious disincentives for students to transfer to a different school after a full quarter of their high school experience has passed, and the record sheds no light on how transfers to the oversubscribed high schools are handled.

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examples the dissent mentions—for example, a provision of the No Child Left Behind Act that requires States to set measurable objectives to track the achievement of students from major racial and ethnic groups, 20 U. S. C. §6311(b)(2)(C)(v)—have nothing to do with the pertinent issues in these cases.
JUSTICE BREYER also suggests that other means for achieving greater racial diversity in schools are necessarily unconstitutional if the racial classifications at issue in these cases cannot survive strict scrutiny. Post, at 58–62. These other means—e.g., where to construct new schools, how to allocate resources among 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. Rather, we employ the familiar and well-established analytic approach of strict scrutiny to evaluate the plans at issue today, an approach that in no way warrants the dissent’s cataclysmic concerns. Under that approach, the school districts have not carried their burden of showing that the ends they seek justify the particular extreme means they have chosen—classifying individual students on the basis of their race and discriminating among them on that basis.

* * *
If the need for the racial classifications embraced by the school districts is unclear, even on the districts’ own terms, the costs are undeniable. “[D]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Adarand, 515 U. S., at 214 (internal quotation marks omitted). Government action dividing us by race is inherently suspect because such classifications promote “notions of racial

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inferiority and lead to a politics of racial hostility,” Croson, supra, at 493, “reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin,” Shaw v. Reno, 509 U. S. 630, 657 (1993), and “endorse race-based reasoning and the conception of a Nation divided into racial blocs, thus contributing to an escalation of racial hostility and conflict.” Metro Broadcasting, 497 U. S., at 603 (O’Connor, J., dissenting). As the Court explained in Rice v. Cayetano, 528 U. S. 495, 517 (2000), “[o]ne of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.”
All this is true enough in the contexts in which these statements were made—government contracting, voting districts, allocation of broadcast licenses, and electing state officers—but when it comes to using race to assign children to schools, history will be heard. In Brown v. Board of Education, 347 U. S. 483 (1954) (Brown I), we held that segregation deprived black children of equal educational opportunities regardless of whether school facilities and other tangible factors were equal, because government classification and separation on grounds of race themselves denoted inferiority. Id., at 493–494. It was not the inequality of the facilities but the fact of legally separating children on the basis of race on which the Court relied to find a constitutional violation in 1954. See id., at 494 (“ ‘The impact [of segregation] is greater when it has the sanction of the law’ ”). The next Term, we accordingly stated that “full compliance” with Brown I required school districts “to achieve a system of determining admission to the public schools on a nonracial basis.” Brown II, 349 U. S., at 300–301 (emphasis added).
The parties and their amici debate which side is more faithful to the heritage of Brown, but the position of the plaintiffs in Brown was spelled out in their brief and could

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not have been clearer: “[T]he Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their color or race.” Brief for Appellants in Nos. 1, 2, and 4 and for Respondents in No. 10 on Reargument in Brown I, O. T. 1953, p. 15 (Summary of Argument). What do the racial classifications at issue here do, if not accord differential treatment on the basis of race? As counsel who appeared before this Court for the plaintiffs in Brown put it: “We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” Tr. of Oral Arg. in Brown I, p. 7 (Robert L. Carter, Dec. 9, 1952). There is no ambiguity in that statement. And it was that position that prevailed in this Court, which emphasized in its remedial opinion that what was “[a]t stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis,” and what was required was “determining admission to the public schools on a nonracial basis.” Brown II, supra, at 300–301 (emphasis added). What do the racial classifications do in these cases, if not determine admission to a public school on a racial basis?
Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again—even for very different reasons. For schools that never segregated on the basis of race, such as Seattle, or that have removed the vestiges of past segregation, such as Jefferson County, the way “to achieve a system of determining admission to the public schools on a nonracial basis,” Brown II, 349 U. S., at 300–301, is to stop assigning students on a racial basis. The way to stop

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discrimination on the basis of race is to stop discriminating on the basis of race.
The judgments of the Courts of Appeals for the Sixth and Ninth Circuits are reversed, and the cases are remanded for further proceedings.
It is so ordered.

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1

THOMAS, J., concurring

SUPREME COURT OF THE UNITED STATES
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Nos. 05–908 and 05–915
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PARENTS INVOLVED IN COMMUNITY

SCHOOLS, PETITIONER

05–908

v.

SEATTLE SCHOOL DISTRICT NO. 1 ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
 APPEALS FOR THE NINTH CIRCUIT


CRYSTAL D. MEREDITH, CUSTODIAL PARENT AND NEXT

FRIEND OF JOSHUA RYAN MCDONALD, PETITIONER

05–915

v.

JEFFERSON COUNTY BOARD OF EDUCATION ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
 APPEALS FOR THE SIXTH CIRCUIT

[June 28, 2007] 


JUSTICE THOMAS, concurring.
Today, the Court holds that state entities may not experiment with race-based means to achieve ends they deem socially desirable. I wholly concur in THE CHIEF JUSTICE’s opinion. I write separately to address several of the contentions in JUSTICE BREYER’s dissent (hereinafter the dissent). Contrary to the dissent’s arguments, resegregation is not occurring in Seattle or Louisville; these school boards have no present interest in remedying past segregation; and these race-based student-assignment programs do not serve any compelling state interest. Accordingly, the plans are unconstitutional. Disfavoring a color-blind interpretation of the Constitution, the dissent would give school boards a free hand to make decisions on the basis of race—an approach reminiscent of that advo-

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cated by the segregationists in Brown v. Board of Education, 347 U. S 483 (1954). This approach is just as wrong today as it was a half-century ago. The Constitution and our cases require us to be much more demanding before permitting local school boards to make decisions based on race.

I
The dissent repeatedly claims that the school districts are threatened with resegregation and that they will succumb to that threat if these plans are declared unconstitutional. It also argues that these plans can be justified as part of the school boards’ attempts to “eradicat[e] earlier school segregation.” See, e.g., post, at 4. Contrary to the dissent’s rhetoric, neither of these school districts is threatened with resegregation, and neither is constitutionally compelled or permitted to undertake race-based remediation. Racial imbalance is not segregation, and the mere incantation of terms like resegregation and remediation cannot make up the difference.

A
Because this Court has authorized and required racebased remedial measures to address de jure segregation, it is important to define segregation clearly and to distinguish it from racial imbalance. In the context of public schooling, segregation is the deliberate operation of a school system to “carry out a governmental policy to separate pupils in schools solely on the basis of race.” Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1, 6 (1971); see also Monroe v. Board of Comm’rs of Jackson, 391 U. S. 450, 452 (1968). In Brown, this Court declared that segregation was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. Swann, supra, at 6; see also Green v. School Bd. of New Kent Cty., 391 U. S. 430, 435 (1968) (“[T]he State, acting through the local

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school board and school officials, organized and operated a dual system, part ‘white’ and part ‘Negro.’ It was such dual systems that 14 years ago Brown I[, 347 U. S. 483,] held unconstitutional and a year later Brown II[, 349 U. S. 294 (1955)] held must be abolished”).1
Racial imbalance is the failure of a school district’s individual schools to match or approximate the demographic makeup of the student population at large. Cf. Washington v. Seattle School Dist. No. 1, 458 U. S. 457, 460 (1982). Racial imbalance is not segregation.2 Although presently observed racial imbalance might result from past de jure segregation, racial imbalance can also result from any number of innocent private decisions, including voluntary housing choices. See Swann, supra, at 25–26; Missouri v. Jenkins, 515 U. S. 70, 116 (1995) (THOMAS, J., concurring). Because racial imbalance is not inevitably linked to unconstitutional segregation, it is not unconstitutional in and of itself. Dayton Bd. of Ed. v. Brinkman, 433 U. S. 406, 413 (1977); Dayton Bd. of Ed. v. Brinkman, 443 U. S. 526, 531, n. 5 (1979) (“Racial imbalance . . . is not per se a constitutional violation”); Freeman v. Pitts, 503 U. S. 467, 494 (1992); see also Swann, supra, at 31–32; cf. Milliken v. Bradley, 418 U. S. 717, 740–741, and n. 19 (1974).
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1 In this Court’s paradigmatic segregation cases, there was a local ordinance, state statute, or state constitutional provision requiring racial separation. See, e.g., Brief for Petitioners in Bolling v. Sharpe, O. T. 1952, No. 4, pp. 28–30 (cataloging state laws requiring separation of the races); id., at App. A (listing “Statutory and Constitutional Provisions in the States Where Segregation in Education is Institutionalized”).
2 The dissent refers repeatedly and reverently to “ ‘integration.’ ” However, outside of the context of remediation for past de jure segregation, “integration” is simply racial balancing. See post, at 37. Therefore, the school districts’ attempts to further “integrate” are properly thought of as little more than attempts to achieve a particular racial balance.

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Although there is arguably a danger of racial imbalance in schools in Seattle and Louisville, there is no danger of resegregation. No one contends that Seattle has established or that Louisville has reestablished a dual school system that separates students on the basis of race. The statistics cited in Appendix A to the dissent are not to the contrary. See post, at 69–72. At most, those statistics show a national trend toward classroom racial imbalance. However, racial imbalance without intentional state action to separate the races does not amount to segregation. To raise the specter of resegregation to defend these programs is to ignore the meaning of the word and the nature of the cases before us.3
B
Just as the school districts lack an interest in preventing resegregation, they also have no present interest in remedying past segregation. The Constitution generally prohibits government race-based decisionmaking, but this Court has authorized the use of race-based measures for remedial purposes in two narrowly defined circumstances.

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3 The dissent’s assertion that these plans are necessary for the school districts to maintain their “hard-won gains” reveals its conflation of segregation and racial imbalance. Post, at 38. For the dissent’s purposes, the relevant hard-won gains are the present racial compositions in the individual schools in Seattle and Louisville. However, the actual hard-won gain in these cases is the elimination of the vestiges of the system of state-enforced racial separation that once existed in Louisville. To equate the achievement of a certain statistical mix in several schools with the elimination of the system of systematic de jure segregation trivializes the latter accomplishment. Nothing but an interest in classroom aesthetics and a hypersensitivity to elite sensibilities justifies the school districts’ racial balancing programs. See Part II–B, infra. But “the principle of inherent equality that underlies and infuses our Constitution” required the disestablishment of de jure segregation. See Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 240 (1995) (THOMAS, J., concurring in part and concurring in judgment). Assessed in any objective manner, there is no comparison between the two.

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First, in schools that were formerly segregated by law, race-based measures are sometimes constitutionally compelled to remedy prior school segregation. Second, in Croson, the Court appeared willing to authorize a government unit to remedy past discrimination for which it was responsible. Richmond v. J. A. Croson Co., 488 U. S. 469, 504 (1989). Without explicitly resting on either of these strands of doctrine, the dissent repeatedly invokes the school districts’ supposed interests in remedying past segregation. Properly analyzed, though, these plans do not fall within either existing category of permissible racebased remediation.
1
The Constitution does not permit race-based government decisionmaking simply because a school district claims a remedial purpose and proceeds in good faith with arguably pure motives. Grutter v. Bollinger, 539 U. S. 306, 371 (2003) (THOMAS, J., concurring in part and dissenting in part) (citing Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 239 (1995) (SCALIA, J., concurring in part and concurring in judgment)). Rather, race-based government decisionmaking is categorically prohibited unless narrowly tailored to serve a compelling interest. Grutter, supra, at 326; see also Part II–A, infra. This exacting scrutiny “has proven automatically fatal” in most cases. Jenkins, supra, at 121 (THOMAS, J., concurring); cf. Hirabayashi v. United States, 320 U. S. 81, 100 (1943) (“[R]acial discriminations are in most circumstances irrelevant and therefore prohibited”). And appropriately so. “The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.” Grutter, supra, at 353

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(opinion of THOMAS, J.). Therefore, as a general rule, all race-based government decisionmaking—regardless of context—is unconstitutional.

2
This Court has carved out a narrow exception to that general rule for cases in which a school district has a “history of maintaining two sets of schools in a single school system deliberately operated to carry out a governmental policy to separate pupils in schools solely on the basis of race.”4 See Swann, 402 U. S., at 5–6. In such cases, race-based remedial measures are sometimes required.5 Green, 391 U. S., at 437–438; cf. United States v. Fordice, 505 U. S. 717, 745 (1992) (THOMAS, J., concurring).6 But without a history of state-enforced racial
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4 The dissent makes much of the supposed difficulty of determining whether prior segregation was de jure or de facto. See, e.g., post, at 19– 20. That determination typically will not be nearly as difficult as the dissent makes it seem. In 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. See, e.g., n. 1, supra. And even if the determination is difficult, it is one the dissent acknowledges must be made to determine what remedies school districts are required to adopt. Post, at 43.
5 This Court’s opinion in McDaniel v. Barresi, 402 U. S. 39 (1971), fits comfortably within this framework. There, a Georgia school board voluntarily adopted a desegregation plan. At the time of Brown, v. Board of Education, 347 U. S. 483 (1954), Georgia’s Constitution required that “[s]eparate schools shall be provided for the white and colored races.” Ga. Const., Art. VII, §1, ch. 2–6401 (1948). Given that state law had previously required the school board to maintain a dual school system, the county was obligated to take measures to remedy its prior de jure segregation. This Court recognized as much in its opinion, which stated that the school board had an “affirmative duty to disestablish the dual school system.” McDaniel, supra, at 41.
6 As I have explained elsewhere, the remedies this Court authorized lower courts to compel in early desegregation cases like Green and Swann were exceptional. See Missouri v. Jenkins, 515 U. S. 70, 124– 125 (1995), (THOMAS, J., concurring). Sustained resistance to Brown prompted the Court to authorize extraordinary race-conscious remedial

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separation, a school district has no affirmative legal obligation to take race-based remedial measures to eliminate segregation and its vestiges.
Neither of the programs before us today is compelled as a remedial measure, and no one makes such a claim. Seattle has no history of de jure segregation; therefore, the Constitution did not require Seattle’s plan.7 Although Louisville once operated a segregated school system and was subject to a Federal District Court’s desegregation decree, see ante, at 7; Hampton v. Jefferson Cty. Bd. of Ed., 102 F. Supp. 2d 358, 376–377 (WD Ky. 2000), that decree was dissolved in 2000, id., at 360. Since then, no race-based remedial measures have been required in Louisville. Thus, the race-based student-assignment plan at issue here, which was instituted the year after the dissolution of the desegregation decree, was not even arguably required by the Constitution.

——————
measures (like compelled racial mixing) to turn the Constitution’s dictate to desegregate into reality. 515 U. S., at 125 (THOMAS, J., concurring). Even if these measures were appropriate as remedies in the face of widespread resistance to Brown’s mandate, they are not forever insulated from constitutional scrutiny. Rather, “such powers should have been temporary and used only to overcome the widespread resistance to the dictates of the Constitution.” 515 U. S., at 125 (THOMAS, J., concurring).
7 Though the dissent cites every manner of complaint, record material, and scholarly article relating to Seattle’s race-based student assignment efforts, post, at 73–75, it cites no law or official policy that required separation of the races in Seattle’s schools. Nevertheless, the dissent tries to cast doubt on the historical fact that the Seattle schools were never segregated by law by citing allegations that the National Association for the Advancement of Colored People and other organizations made in court filings to the effect that Seattle’s schools were once segregated by law. See post, at 7–9, 23. These allegations were never proved and were not even made in this case. Indeed, the record before us suggests the contrary. See App. in No. 05–908, pp. 214a, 225a, 257a. Past allegations in another case provide no basis for resolving these cases.

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3
Aside from constitutionally compelled remediation in schools, this Court has permitted government units to remedy prior racial discrimination only in narrow circumstances. See Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 277 (1986) (plurality opinion). Regardless of the constitutional validity of such remediation, see Croson, supra, at 524–525 (SCALIA, J., concurring in judgment), it does not apply here. Again, neither school board asserts that its race-based actions were taken to remedy prior discrimination. Seattle provides three forward-looking—as opposed to remedial—justifications for its race-based assignment plan. Brief for Respondents in No. 05–908, pp. 24–34. Louisville asserts several similar forward-looking interests, Brief for Respondents in No. 05–915, pp. 24–29, and at oral argument, counsel for Louisville disavowed any claim that Louisville’s argument “depend[ed] in any way on the prior de jure segregation,” Tr. of Oral Arg. in No. 05–915, p. 38.
Furthermore, for a government unit to remedy past discrimination for which it was responsible, the Court has required it to demonstrate “a ‘strong basis in evidence for its conclusion that remedial action was necessary.’ ” Croson, 488 U. S., at 500 (quoting Wygant, supra, at 277 (plurality opinion)). Establishing a “strong basis in evidence” requires proper findings regarding the extent of the government unit’s past racial discrimination. Croson, 488 U. S., at 504. The findings should “define the scope of any injury [and] the necessary remedy,” id., at 505, and must be more than “inherently unmeasurable claims of past wrongs,” id., at 506. Assertions of general societal discrimination are plainly insufficient. Id., at 499, 504; Wygant, supra, at 274 (plurality opinion); cf. Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 310 (1978) (opinion of Powell, J.). Neither school district has made any such specific findings. For Seattle, the dissent attempts to

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make up for this failing by adverting to allegations made in past complaints filed against the Seattle school district. However, allegations in complaints cannot substitute for specific findings of prior discrimination—even when those allegations lead to settlements with complaining parties. Cf. Croson, supra, at 505; Wygant, supra, at 279, n. 5 (plurality opinion). As for Louisville, its slate was cleared by the District Court’s 2000 dissolution decree, which effectively declared that there were no longer any effects of de jure discrimination in need of remediation.8
Despite the dissent’s repeated intimation of a remedial purpose, neither of the programs in question qualifies as a permissible race-based remedial measure. Thus, the programs are subject to the general rule that government race-based decisionmaking is unconstitutional.
C
As the foregoing demonstrates, racial balancing is sometimes a constitutionally permissible remedy for the discrete legal wrong of de jure segregation, and when directed to that end, racial balancing is an exception to the general rule that government race-based decisionmaking is uncon-
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8 Contrary to the dissent’s argument, post, at 44, the Louisville school district’s interest in remedying its past de jure segregation did vanish the day the District Court found that Louisville had eliminated the vestiges of its historic de jure segregation. See Hampton v. Jefferson Cty. Bd. of Ed., 102 F. Supp. 2d 358, at 360 (WD Ky. 2000). If there were further remediation to be done, the District Court could not logically have reached the conclusion that Louisville “ha[d] eliminated the vestiges associated with the former policy of segregation and its pernicious effects.” Ibid. Because Louisville could use race-based measures only as a remedy for past de jure segregation, it is not “incoherent,” post, at 56, to say that race-based decisionmaking was allowed to Louisville one day—while it was still remedying—and forbidden to it the next—when remediation was finished. That seemingly odd turnaround is merely a result of the fact that the remediation of de jure segregation is a jealously guarded exception to the Equal Protection Clause’s general rule against government race-based decisionmaking.

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stitutional. Perhaps for this reason, the dissent conflates the concepts of segregation and racial imbalance: If racial imbalance equates to segregation, then it must also be constitutionally acceptable to use racial balancing to remedy racial imbalance.
For at least two reasons, however, it is wrong to place the remediation of segregation on the same plane as the remediation of racial imbalance. First, as demonstrated above, the two concepts are distinct. Although racial imbalance can result from de jure segregation, it does not necessarily, and the further we get from the era of statesponsored racial separation, the less likely it is that racial imbalance has a traceable connection to any prior segregation. See Freeman, 503 U. S., at 496; Jenkins, 515 U. S., at 118 (THOMAS, J., concurring).
Second, a school cannot “remedy” racial imbalance in the same way that it can remedy segregation. Remediation of past de jure segregation is a one-time process involving the redress of a discrete legal injury inflicted by an identified entity. At some point, the discrete injury will be remedied, and the school district will be declared unitary. See Swann, 402 U. S., at 31. Unlike de jure segregation, there is no ultimate remedy for racial imbalance. Individual schools will fall in and out of balance in the natural course, and the appropriate balance itself will shift with a school district’s changing demographics. Thus, racial balancing will have to take place on an indefinite basis—a continuous process with no identifiable culpable party and no discernable end point. In part for those reasons, the Court has never permitted outright racial balancing solely for the purpose of achieving a particular racial balance.

II
Lacking a cognizable interest in remediation, neither of these plans can survive strict scrutiny because neither plan serves a genuinely compelling state interest. The

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dissent avoids reaching that conclusion by unquestioningly accepting the assertions of selected social scientists while completely ignoring the fact that those assertions are the subject of fervent debate. Ultimately, the dissent’s entire analysis is corrupted by the considerations that lead it initially to question whether strict scrutiny should apply at all. What emerges is a version of “strict scrutiny” that combines hollow assurances of harmlessness with reflexive acceptance of conventional wisdom. When it comes to government race-based decisionmaking, the Constitution demands more.
A
The dissent claims that “the law requires application here of a standard of review that is not ‘strict’ in the traditional sense of that word.” Post, at 36. This view is informed by dissents in our previous cases and the concurrences of two Court of Appeals judges. Post, at 34–36 (citing 426 F. 3d 1162, 1193–1194 (CA9 2005) (Kozinski, J., concurring); Comfort v. Lynn School Comm., 418 F. 3d 1, 28–29 (CA1 2005) (Boudin, C. J., concurring)). Those lower court judges reasoned that programs like these are not “aimed at oppressing blacks” and do not “seek to give one racial group an edge over another.” Comfort, supra, at 27 (Boudin, C. J., concurring); 426 F. 3d, at 1193 (Kozinski, J., concurring). They were further persuaded that these plans differed from other race-based programs this Court has considered because they are “certainly more benign than laws that favor or disfavor one race, segregate by race, or create quotas for or against a racial group,” Comfort, 418 F. 3d, at 28 (Boudin, C. J., concurring), and they are “far from the original evils at which the Fourteenth Amendment was addressed,” id., at 29; 426 F. 3d, at 1195 (Kozinski, J., concurring). Instead of strict scrutiny, Judge Kozinski would have analyzed the plans under “robust and realistic rational basis review.” Id., at 1194.

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These arguments are inimical to the Constitution and to this Court’s precedents.9 We have made it unusually clear that strict scrutiny applies to every racial classification. Adarand, 515 U. S., at 227; Grutter, 539 U. S., at 326; Johnson v. California, 543 U. S. 499, 505 (2005) (“We have insisted on strict scrutiny in every context, even for socalled ‘benign’ racial classifications”).10 There are good reasons not to apply a lesser standard to these cases. The constitutional problems with government race-based decisionmaking are not diminished in the slightest by the presence or absence of an intent to oppress any race or by the real or asserted well-meaning motives for the racebased decisionmaking. Adarand, 515 U. S., at 228–229. Purportedly benign race-based decisionmaking suffers the same constitutional infirmity as invidious race-based decisionmaking. Id., at 240 (THOMAS, J., concurring in part and concurring in judgment) (“As far as the Constitution is concerned, it is irrelevant whether a government’s racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged”).
Even supposing it mattered to the constitutional analysis, the race-based student assignment programs before us

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9 The dissent’s appeal to stare decisis, post, at 65, is particularly ironic in light of its apparent willingness to depart from these precedents, post, at 36–37.
10 The idea that government racial classifications must be subjected to strict scrutiny did not originate in Adarand. As early as Loving v. Virginia, 388 U. S. 1 (1967), this Court made clear that government action that “rest[s] solely upon distinctions drawn according to race” had to be “subjected to the ‘most rigid scrutiny.’ ” Id., at 11 (quoting Korematsu v. United States, 323 U. S. 214, 216 (1944)); see also McLaughlin v. Florida, 379 U. S. 184, 196 (1964) (requiring a statute drawing a racial classification to be “necessary, and not merely rationally related, to accomplishment of a permissible state policy”); id., at 197 (Harlan, J., concurring) (“The necessity test . . . should be equally applicable in a case involving state racial discrimination”).

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are not as benign as the dissent believes. See post, at 34– 35. “[R]acial paternalism and its unintended consequences can be as poisonous and pernicious as any other form of discrimination.” Adarand, supra, at 241 (opinion of THOMAS, J.). As these programs demonstrate, every time the government uses racial criteria to “bring the races together,” post, at 29, someone gets excluded, and the person excluded suffers an injury solely because of his or her race. The petitioner in the Louisville case received a letter from the school board informing her that her kindergartener would not be allowed to attend the school of petitioner’s choosing because of the child’s race. App. in No. 05–915, p. 97. Doubtless, hundreds of letters like this went out from both school boards every year these racebased assignment plans were in operation. This type of exclusion, solely on the basis of race, is precisely the sort of government action that pits the races against one another, exacerbates racial tension, and “provoke[s] resentment among those who believe that they have been wronged by the government’s use of race.” Adarand, supra, at 241 (opinion of THOMAS, J.). Accordingly, these plans are simply one more variation on the government race-based decisionmaking we have consistently held must be subjected to strict scrutiny. Grutter, supra, at 326.
B
Though the dissent admits to discomfort in applying strict scrutiny to these plans, it claims to have nonetheless applied that exacting standard. But in its search for a compelling interest, the dissent casually accepts even the most tenuous interests asserted on behalf of the plans, grouping them all under the term “ ‘integration.’ ” See post, at 37. “ ‘[I]ntegration,’ ” we are told, has “three essential elements.” Ibid. None of these elements is compelling. And the combination of the three unsubstantiated elements does not produce an interest any more compel-

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ling than that represented by each element independently.

1
According to the dissent, integration involves “an interest in setting right the consequences of prior conditions of segregation.” Post, at 37. For the reasons explained above, the records in these cases do not demonstrate that either school board’s plan is supported by an interest in remedying past discrimination. Part I–B, supra.
Moreover, the school boards have no interest in remedying the sundry consequences of prior segregation unrelated to schooling, such as “housing patterns, employment practices, economic conditions, and social attitudes.” Post, at 38. General claims that past school segregation affected such varied societal trends are “too amorphous a basis for imposing a racially classified remedy,” Wygant, 476 U. S., at 276 (plurality opinion), because “[i]t is sheer speculation” how decades-past segregation in the school system might have affected these trends, see Croson, 488 U. S., at 499. Consequently, school boards seeking to remedy those societal problems with race-based measures in schools today would have no way to gauge the proper scope of the remedy. Id., at 498. Indeed, remedial measures geared toward such broad and unrelated societal ills have “ ‘no logical stopping point,’ ” ibid., and threaten to become “ageless in their reach into the past, and timeless in their ability to affect the future,” Wygant, supra, at 276 (plurality opinion). See Grutter, 539 U. S., at 342 (stating the “requirement that all governmental use of race must have a logical end point”).
Because the school boards lack any further interest in remedying segregation, this element offers no support for the purported interest in “integration.”

2 Next, the dissent argues that the interest in integration

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has an educational element. The dissent asserts that racially balanced schools improve educational outcomes for black children. In support, the dissent unquestioningly cites certain social science research to support propositions that are hotly disputed among social scientists. In reality, it is far from apparent that coerced racial mixing has any educational benefits, much less that integration is necessary to black achievement.
Scholars have differing opinions as to whether educational benefits arise from racial balancing. Some have concluded that black students receive genuine educational benefits. See, e.g., Crain & Mahard, Desegregation and Black Achievement: A Review of the Research, 42 L. & Contemp. Probs. 17, 48 (1978). Others have been more circumspect. See, e.g., Henderson, Greenberg, Schneider, Uribe, & Verdugo, High Quality Schooling for African American Students, in Beyond Desegregation 166 (M. Shujaa ed. 1996) (“Perhaps desegregation does not have a single effect, positive or negative, on the academic achievement of African American students, but rather some strategies help, some hurt, and still others make no difference whatsoever. It is clear to us that focusing simply on demographic issues detracts from focusing on improving schools”). And some have concluded that there are no demonstrable educational benefits. See, e.g., Armor & Rossell, Desegregation and Resegregation in the Public Schools, in Beyond the Color Line: New Perspectives on Race and Ethnicity in America 239, 251 (A. Thernstrom & S. Thernstrom eds. 2002).
The amicus briefs in the cases before us mirror this divergence of opinion. Supporting the school boards, one amicus has assured us that “both early desegregation research and recent statistical and econometric analyses . . . indicate that there are positive effects on minority student achievement scores arising from diverse school settings.” Brief for American Educational Research Asso-

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ciation as Amicus Curiae 10. Another brief claims that “school desegregation has a modest positive impact on the achievement of African-American students.” App. to Brief for 553 Social Scientists as Amici Curiae 13–14 (footnote omitted). Yet neither of those briefs contains specific details like the magnitude of the claimed positive effects or the precise demographic mix at which those positive effects begin to be realized. Indeed, the social scientists’ brief rather cautiously claims the existence of any benefit at all, describing the “positive impact” as “modest,” id., at 13, acknowledging that “there appears to be little or no effect on math scores,” id., at 14, and admitting that the “underlying reasons for these gains in achievement are not entirely clear,” id., at 15.11
Other amici dispute these findings. One amicus reports that “[i]n study after study, racial composition of a student body, when isolated, proves to be an insignificant determinant of student achievement.” Brief for Dr. John Murphy et al. as Amici Curiae in No. 05–908, p. 8; see also id., at 9 (“[T]here is no evidence that diversity in the K–12 classroom positively affects student achievement”). Another amicus surveys several social science studies and concludes that “a fair and comprehensive analysis of the

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11 At least one of the academic articles the dissent cites to support this proposition fails to establish a causal connection between the supposed educational gains realized by black students and racial mixing. See Hallinan, Diversity Effects on Student Outcomes: Social Science Evidence, 59 Ohio St. L. J. 733 (1998). In the pages following the ones the dissent cites, the author of that article remarks that “the main reason white and minority students perform better academically in majority white schools is likely that these schools provide greater opportunities to learn. In other words, it is not desegregation per se that improves achievement, but rather the learning advantages some desegregated schools provide.” Id., at 744. Evidence that race is a good proxy for other factors that might be correlated with educational benefits does not support a compelling interest in the use of race to achieve academic results.

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research shows that there is no clear and consistent evidence of [educational] benefits.” Brief for David J. Armor et al. as Amici Curiae 29.
Add to the inconclusive social science the fact of black achievement in “racially isolated” environments. See T. Sowell, Education: Assumptions Versus History 7–38 (1986). Before Brown, the most prominent example of an exemplary black school was Dunbar High School. Id., at 29 (“[I]n the period 1918–1923, Dunbar graduates earned fifteen degrees from Ivy League colleges, and ten degrees from Amherst, Williams, and Wesleyan”). Dunbar is by no means an isolated example. See id., at 10–32 (discussing other successful black schools); Walker, Can Institutions Care? Evidence from the Segregated Schooling of African American Children, in Beyond Desegregation 209–226 (M. Shujaa ed. 1996); see also T. Sowell, Affirmative Action Around the World: An Empirical Study 141–165 (2004). Even after Brown, some schools with predominantly black enrollments have achieved outstanding educational results. See, e.g., S. Carter, No Excuses: Lessons from 21 High-Performing, High-Poverty Schools 49–50, 53–56, 71– 73, 81–84, 87–88 (2001); A. Thernstrom & S. Thernstrom, No Excuses: Closing the Racial Gap in Learning 43–64 (2003); see also L. Izumi, They Have Overcome: HighPoverty, High-Performing Schools in California (2002) (chronicling exemplary achievement in predominantly Hispanic schools in California). There is also evidence that black students attending historically black colleges achieve better academic results than those attending predominantly white colleges. Grutter, supra, at 364–365 (THOMAS, J., concurring in part and concurring in judgment) (citing sources); see also Fordice, 505 U. S., at 748– 749 (THOMAS, J., concurring).
The Seattle school board itself must believe that racial mixing is not necessary to black achievement. Seattle operates a K–8 “African-American Academy,” which has a

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“nonwhite” enrollment of 99%. See App. in No. 05–908, p. 227a; Reply Brief in No. 05–908, p. 13, n. 13. That school was founded in 1990 as part of the school board’s effort to “increase academic achievement.”12 See African American Academy History, online at http://www. seattleschools.org/schools/aaa/history.htm (all Internet materials as visited June 26, 2007, and available in Clerk of Court’s case file). According to the school’s most recent annual report, “[a]cademic excellence” is its “primary goal.” See African American Academy 2006 Annual Report, p. 2, online at http://www.seattleschools.org/area/ siso/reports/anrep/altern/938.pdf. This racially imbalanced environment has reportedly produced test scores “higher across all grade levels in reading, writing and math.” Ibid. Contrary to what the dissent would have predicted, see post, at 38–39, the children in Seattle’s African American Academy have shown gains when placed in a “highly segregated” environment.
Given this tenuous relationship between forced racial mixing and improved educational results for black children, the dissent cannot plausibly maintain that an educational element supports the integration interest, let alone makes it compelling.13 See Jenkins, 515 U. S., at 121–122

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12 Of course, if the Seattle school board were truly committed to the notion that diversity leads directly to educational benefits, operating a school with such a high “nonwhite” enrollment would be a shocking dereliction of its duty to educate the students enrolled in that school.
13 In fact, the available data from the Seattle school district appear to undercut the dissent’s view. A comparison of the test results of the schools in the last year the racial balancing program operated to the results in the 2004-to-2005 school year (in which student assignments were race-neutral) does not indicate the decline in black achievement one would expect to find if black achievement were contingent upon a particular racial mix. See Washington State Report Card, online at http://reportcard.ospi.k12.wa.us/summary.aspx?schoolId= 1099&OrgType=4&reportLevel=School; http://reportcard.ospi.k12.wa.us/ summary.aspx?schoolId=1104&reportLevel=School&orgLinkId=1104&yrs=;

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(THOMAS, J., concurring) (“[T]here is no reason to think that black students cannot learn as well when surrounded by members of their own race as when they are in an integrated environment”).
Perhaps recognizing as much, the dissent argues that the social science evidence is “strong enough to permit a democratically elected school board reasonably to determine that this interest is a compelling one.” Post, at 38. This assertion is inexplicable. It is not up to the school boards—the very government entities whose race-based practices we must strictly scrutinize—to determine what interests qualify as compelling under the Fourteenth Amendment to the United States Constitution. Rather, this Court must assess independently the nature of the interest asserted and the evidence to support it in order to determine whether it qualifies as compelling under our precedents. In making such a determination, we have deferred to state authorities only once, see Grutter, 539 U. S., at 328–330, and that deference was prompted by factors uniquely relevant to higher education. Id., at 328 (“Our holding today is in keeping with our tradition of giving a degree of deference to a university’s academic decisions”). The dissent’s proposed test—whether sufficient social science evidence supports a government unit’s conclusion that the interest it asserts is compelling—calls to mind the rational-basis standard of review the dissent purports not to apply, post, at 36-37. See Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 488 (1955) (“It is enough that there is an evil at hand for correction, and
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http: // reportcard . ospi . k12 . wa . us / summary . aspx ? schoolId = 1061 & report Level=School&orgLinkId=1061&yrs=; http://reportcard.ospi.k12.wa.us/ summary . aspx ? schoolId = 1043 & reportLevel = School & orgLinkId = 1043 & yrs= (showing that reading scores went up, not down, when Seattle’s racebased assignment program ended at Sealth High School, Ingraham High School, and Franklin High School—some of the schools most affected by the plan).

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that it might be thought that the particular legislative measure was a rational way to correct it”). Furthermore, it would leave our equal-protection jurisprudence at the mercy of elected government officials evaluating the evanescent views of a handful of social scientists. To adopt the dissent’s deferential approach would be to abdicate our constitutional responsibilities.14

3
Finally, the dissent asserts a “democratic element” to the integration interest. It defines the “democratic element” as “an interest in producing an educational environment that reflects the ‘pluralistic society’ in which our children will live.” Post, at 39.15 Environmental reflec-
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14 The dissent accuses me of “feel[ing] confident that, to end invidious discrimination, one must end all governmental use of race-conscious criteria” and chastises me for not deferring to democratically elected majorities. See post, at 62. Regardless of what JUSTICE BREYER’s goals might be, this Court does not sit to “create a society that includes all Americans” or to solve the problems of “troubled inner city schooling.” Ibid. We are not social engineers. The United States Constitution dictates that local governments cannot make decisions on the basis of race. Consequently, regardless of the perceived negative effects of racial imbalance, I will not defer to legislative majorities where the Constitution forbids it.
It should escape no one that behind JUSTICE BREYER’s veil of judicial modesty hides an inflated role for the Federal Judiciary. The dissent’s approach confers on judges the power to say what sorts of discrimination are benign and which are invidious. Having made that determination (based on no objective measure that I can detect), a judge following the dissent’s approach will set the level of scrutiny to achieve the desired result. Only then must the judge defer to a democratic majority. In my view, to defer to one’s preferred result is not to defer at all.
15 The notion that a “democratic” interest qualifies as a compelling interest (or constitutes a part of a compelling interest) is proposed for the first time in today’s dissent and has little basis in the Constitution or our precedent, which has narrowly restricted the interests that qualify as compelling. See Grutter v. Bollinger, 539 U. S. 306, 351–354 (2003) (THOMAS, J., concurring in part and dissenting in part). The Fourteenth Amendment does not enact the dissent’s newly minted

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tion, though, is just another way to say racial balancing. And “[p]referring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake.” Bakke, 438 U. S., at 307 (opinion of Powell, J.). “This the Constitution forbids.” Ibid.; Grutter, supra, at 329–330; Freeman, 503 U. S., at 494.
Navigating around that inconvenient authority, the dissent argues that the racial balancing in these plans is not an end in itself but is instead intended to “teac[h] 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.” Post, at 39–40. These “generic lessons in socialization and good citizenship” are too sweeping to qualify as compelling interests. Grutter, 539 U. S., at 348 (SCALIA, J., concurring in part and dissenting in part). And they are not “uniquely relevant” to schools or “uniquely ‘teachable’ in a formal educational setting.” Id., at 347. Therefore, if governments may constitutionally use racial balancing to achieve these aspirational ends in schools, they may use racial balancing to achieve similar goals at every level—from statesponsored 4–H clubs, see Bazemore v. Friday, 478 U. S. 385, 388–390 (1986) (Brennan, J., concurring), to the state civil service. See Grutter, 539 U. S. 347–348 (opinion of SCALIA, J.).
Moreover, the democratic interest has no durational limit, contrary to Grutter’s command. See id., at 342; see also Croson, 488 U. S., at 498; Wygant, 476 U. S., at 275 (plurality opinion). In other words, it will always be important for students to learn cooperation among the races. If this interest justifies race-conscious measures today, then logically it will justify race-conscious measures for-

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understanding of liberty. See Lochner v. New York, 198 U. S. 45, 75
 (1905) (Holmes, J., dissenting) (“The Fourteenth Amendment does not 
 enact Mr. Herbert Spencer’s Social Statics”). 


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ever. Thus, the democratic interest, limitless in scope and “timeless in [its] ability to affect the future,” id., at 276 (plurality opinion), cannot justify government race-based decisionmaking.16
In addition to these defects, the democratic element of the integration interest fails on the dissent’s own terms. The dissent again relies upon social science research to support the proposition that state-compelled racial mixing teaches children to accept cooperation and improves racial attitudes and race relations. Here again, though, the dissent overstates the data that supposedly support the interest.
The dissent points to data that indicate that “black and white students in desegregated schools are less racially prejudiced than those in segregated schools.” Post, at 40 (internal quotation marks omitted). By the dissent’s account, improvements in racial attitudes depend upon the increased contact between black and white students thought to occur in more racially balanced schools. There is no guarantee, however, that students of different races in the same school will actually spend time with one another. Schools frequently group students by academic
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16 The dissent does not explain how its recognition of an interest in teaching racial understanding and cooperation here is consistent with the Court’s rejection of a similar interest in Wygant. In Wygant, a school district justified its race-based teacher-layoff program in part on the theory that “minority teachers provided ‘role models’ for minority students and that a racially ‘diverse’ faculty would improve the education of all students.” Grutter, supra, at 352 (opinion of THOMAS, J.) (citing Brief for Respondents, O. T. 1984, No. 84–1340, pp. 27–28; 476 U. S., at 315 (STEVENS, J., dissenting)). The Court rejected the interests asserted to justify the layoff program as insufficiently compelling. Wygant, 476 U. S., at 275–276 (plurality opinion); id., at 295 (White, J., concurring in judgment). If a school district has an interest in teaching racial understanding and cooperation, there is no logical reason why that interest should not extend to the composition of the teaching staff as well as the composition of the student body. The dissent’s reliance on this interest is, therefore, inconsistent with Wygant.

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ability as an aid to efficient instruction, but such groupings often result in classrooms with high concentrations of one race or another. See, e.g., Yonezawa, Wells, & Serna, Choosing Tracks: “Freedom of Choice” in Detracting Schools, 39 Am. Ed. Research J., No. 1, p. 38 (Spring 2002); Mickelson, Subverting Swann: First- and SecondGeneration Segregation in the Charlotte-Mecklenburg Schools, 38 Am. Ed. Research J., No. 2, pp. 233–234 (Summer 2001) (describing this effect in schools in Charlotte, North Carolina). In addition to classroom separation, students of different races within the same school may separate themselves socially. See Hallinan & Williams, Interracial Friendship Choices in Secondary Schools, 54 Am. Sociological Rev., No. 1, pp. 72–76 (Feb. 1989); see also Clotfelter, Interracial Contact in High School Extracurricular Activities, 34 Urban Rev., No. 1, pp. 41–43 (Mar. 2002). Therefore, even supposing interracial contact leads directly to improvements in racial attitudes and race relations, a program that assigns students of different races to the same schools might not capture those benefits. Simply putting students together under the same roof does not necessarily mean that the students will learn together or even interact.
Furthermore, it is unclear whether increased interracial contact improves racial attitudes and relations.17 One
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17 Outside the school context, this Court’s cases reflect the fact that racial mixing does not always lead to harmony and understanding. In Johnson v. California, 543 U. S. 499 (2005), this Court considered a California prison policy that separated inmates racially. Id., at 525– 528 (THOMAS, J., dissenting). That policy was necessary because of “numerous incidents of racial violence.” Id., at 502; id., at 532–534 (THOMAS, J., dissenting). As a result of this Court’s insistence on strict scrutiny of that policy, but see id., at 538–547, inmates in the California prisons were killed. See Beard v. Banks, 548 U. S. ___, ___ (2006) (THOMAS, J., concurring in judgment) (noting that two were killed and hundreds were injured in race rioting subsequent to this Court’s decision in Johnson).

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researcher has stated that “the reviews of desegregation and intergroup relations were unable to come to any conclusion about what the probable effects of desegregation were . . . [;] virtually all of the reviewers determined that few, if any, firm conclusions about the impact of desegregation on intergroup relations could be drawn.” Schofield, School Desegregation and Intergroup Relations: A Review of the Literature, in 17 Review of Research in Education 356 (G. Grant ed. 1991). Some studies have even found that a deterioration in racial attitudes seems to result from racial mixing in schools. See N. St. John, School Desegregation Outcomes for Children 67–68 (1975) (“A glance at [the data] shows that for either race positive findings are less common than negative findings”); Stephan, The Effects of School Desegregation: An Evaluation 30 Years After Brown, in Advances in Applied Social Psychology 183–186 (M. Saks & L. Saxe eds. 1986). Therefore, it is not nearly as apparent as the dissent suggests that increased interracial exposure automatically leads to improved racial attitudes or race relations.
Given our case law and the paucity of evidence supporting the dissent’s belief that these plans improve race relations, no democratic element can support the integration interest.18

4
The dissent attempts to buttress the integration interest by claiming that it follows a fortiori from the interest this
——————
18 After discussing the “democratic element,” the dissent repeats its assertion that the social science evidence supporting that interest is “sufficiently strong to permit a school board to determine . . . that this interest is compelling.” Post, at 40. Again, though, the school boards have no say in deciding whether an interest is compelling. Strict scrutiny of race-based government decisionmaking is more searching than Chevron-style administrative review for reasonableness. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 845 (1984).

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Court recognized as compelling in Grutter. Post, at 41. Regardless of the merit of Grutter, the compelling interest recognized in that case cannot support these plans. Grutter recognized a compelling interest in a law school’s attainment of a diverse student body. 539 U. S., at 328. This interest was critically dependent upon features unique to higher education: “the expansive freedoms of speech and thought associated with the university environment,” the “special niche in our constitutional tradition” occupied by universities, and “[t]he freedom of a university to make its own judgments as to education[,] includ[ing] the selection of its student body.” Id., at 329 (internal quotation marks omitted). None of these features is present in elementary and secondary schools. Those schools do not select their own students, and education in the elementary and secondary environment generally does not involve the free interchange of ideas thought to be an integral part of higher education. See 426 F. 3d, at 1208 (Bea, J., dissenting). Extending Grutter to this context would require us to cut that holding loose from its theoretical moorings. Thus, only by ignoring Grutter’s reasoning can the dissent claim that recognizing a compelling interest in these cases is an a fortiori application of Grutter.
C
Stripped of the baseless and novel interests the dissent asserts on their behalf, the school boards cannot plausibly maintain that their plans further a compelling interest. As I explained in Grutter, only “those measures the State must take to provide a bulwark against anarchy . . . or to prevent violence” and “a government’s effort to remedy past discrimination for which it is responsible” constitute compelling interests. 539 U. S., at 351–352, 353. Neither of the parties has argued—nor could they—that racebased student assignment is necessary to provide a bul-

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wark against anarchy or to prevent violence. And as I explained above, the school districts have no remedial interest in pursuing these programs. See Part I–B, supra. Accordingly, the school boards cannot satisfy strict scrutiny. These plans are unconstitutional.

III
Most of the dissent’s criticisms of today’s result can be traced to its rejection of the color-blind Constitution. See post, at 29. The dissent attempts to marginalize the notion of a color-blind Constitution by consigning it to me and Members of today’s plurality.19 See ibid.; see also post, at 61. But I am quite comfortable in the company I keep. My view of the Constitution is Justice Harlan’s view in Plessy: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (dissenting opinion). And my view was the rallying cry for the lawyers who litigated Brown. See, e.g., Brief for Appellants in Brown v. Board of Education, O. T. 1953, Nos. 1, 2, and 4 p. 65 (“That the Constitution is color blind is our dedicated belief”); Brief for Appellants in Brown v. Board of Education, O. T. 1952, No. 1, p. 5 (“The Fourteenth Amendment precludes a state from imposing distinctions or classifica-

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19 The dissent half-heartedly attacks the historical underpinnings of the color-blind Constitution. Post, at 28–29. I have no quarrel with the proposition that the Fourteenth Amendment sought to bring former slaves into American society as full members. Post, at 28 (citing Slaughter-House Cases, 16 Wall. 36, 71–72 (1873)). What the dissent fails to understand, however, is that the color-blind Constitution does not bar the government from taking measures to remedy past statesponsored discrimination—indeed, it requires that such measures be taken in certain circumstances. See, e.g., Part I–B, supra. Race-based government measures during the 1860’s and 1870’s to remedy stateenforced slavery were therefore not inconsistent with the color-blind Constitution.

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tions based upon race and color alone”);20 see also In Memoriam: Honorable Thurgood Marshall, Proceedings of the Bar and Officers of the Supreme Court of the United States, X (1993) (remarks of Judge Motley) (“Marshall had a ‘Bible’ to which he turned during his most depressed moments. The ‘Bible’ would be known in the legal community as the first Mr. Justice Harlan’s dissent in Plessy v. Ferguson, 163 U. S. 537, 552 (1896). I do not know of any opinion which buoyed Marshall more in his pre-Brown days . . .”).
The dissent appears to pin its interpretation of the Equal Protection Clause to current societal practice and expectations, deference to local officials, likely practical consequences, and reliance on previous statements from this and other courts. Such a view was ascendant in this Court’s jurisprudence for several decades. It first appeared in Plessy, where the Court asked whether a state law providing for segregated railway cars was “a reasonable regulation.” 163 U. S., at 550. The Court deferred to local authorities in making its determination, noting that in inquiring into reasonableness “there must necessarily be a large discretion on the part of the legislature.” Ibid. The Court likewise paid heed to societal practices, local expectations, and practical consequences by looking to “the established usages, customs and traditions of the people,
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20 See also Juris. Statement in Davis v. County School Board, O. T. 1952, No. 3, p. 8 (“[W]e take the unqualified position that the Fourteenth Amendment has totally stripped the state of power to make race and color the basis for governmental action”); Tr. of Oral Arg. in Brown v. Board of Education, O. T. 1952, No. 1, p. 7 (“We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens”); Tr. of Oral Arg. in Briggs v. Elliott, O. T. 1953, No. 2, p. 50 (“[T]he state is deprived of any power to make any racial classifications in any governmental field”).

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and with a view to the promotion of their comfort, and the preservation of the public peace and good order.” Ibid. Guided by these principles, the Court concluded: “[W]e cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia.” Id., at 550–551.
The segregationists in Brown embraced the arguments the Court endorsed in Plessy. Though Brown decisively rejected those arguments, today’s dissent replicates them to a distressing extent. Thus, the dissent argues that “[e]ach plan embodies the results of local experience and community consultation.” Post, at 47. Similarly, the segregationists made repeated appeals to societal practice and expectation. See, e.g., Brief for Appellees on Reargument in Briggs v. Elliott, O. T. 1953, No. 2, p. 76 (“[A] State has power to establish a school system which is capable of efficient administration, taking into account local problems and conditions”).21 The dissent argues that
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21 See also Brief for Appellees in Davis v. County School Board, O. T. 1952, No. 3, p. 1 (“[T]he Court is asked . . . to outlaw the fixed policies of the several States which are based on local social conditions well known to the respective legislatures”); id., at 9 (“For this purpose, Virginia history and present Virginia conditions are important”); Tr. of Oral Arg. in Davis v. County School Board, O. T. 1952, No. 3, p. 57 (“[T]he historical background that exists, certainly in this Virginia situation, with all the strife and the history that we have shown in this record, shows a basis, a real basis, for the classification that has been made”); id., at 69 (describing the potential abolition of segregation as “contrary to the customs, the traditions and the mores of what we might claim to be a great people, established through generations, who themselves are fiercely and irrevocably dedicated to the preservation of the white and colored races”). Accord, post, at 68 (“Today, almost 50 years later, attitudes toward race in this Nation have changed dramatically. Many parents, white and black alike, want their children to attend schools with children of different races. Indeed, the very school districts that

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“weight [must be given] to a local school board’s knowledge, expertise, and concerns,” post, at 48, and with equal vigor, the segregationists argued for deference to local authorities. See, e.g., Brief for Kansas on Reargument in Brown v. Board of Education, O. T. 1953, No. 1, p. 14 (“We advocate only a concept of constitutional law that permits determinations of state and local policy to be made on state and local levels. We defend only the validity of the statute that enables the Topeka Board of Education to determine its own course”).22 The dissent argues that
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once spurned integration now strive for it. The long history of their efforts reveals the complexities and difficulties they have faced”); post, at 21 (emphasizing the importance of “local circumstances” and encouraging different localities 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” (citations and internal quotation marks omitted)); post, at 48 (emphasizing the school districts’ “40-year history” during which both school districts have tried numerous approaches “to achieve more integrated schools”); post, at 63 (“[T]he histories of Louisville and Seattle reveal complex circumstances and a long tradition of conscientious efforts by local school boards”).
22 See also Brief for Appellees in Brown v. Board of Education, O. T. 1952, No. 1, p. 29 (“ ‘It is universally held, therefore, that each state shall determine for itself, subject to the observance of the fundamental rights and liberties guaranteed by the federal Constitution, how it shall exercise the police power . . . . And in no field is this right of the several states more clearly recognized than in that of public education’ ” (quoting Briggs v. Elliott, 98 F. Supp. 529, 532 (SC 1951))); Brief for Appellees in Briggs v. Elliott, O. T. 1952, No. 2, p. 7 (“Local self-government in local affairs is essential to the peace and happiness of each locality and to the strength and stability of our whole federal system. Nowhere is this more profoundly true than in the field of education”); Tr. of Oral Arg. in Briggs v. Elliott, O. T. 1952, No. 2, pp. 54–55 (“What is the great national and federal policy on this matter? Is it not a fact that the very strength and fiber of our federal system is local self-government in those matters for which local action is competent? Is it not of all the activities of government the one which most nearly approaches the hearts and minds of people, the question of the education of their young? Is it not the height of wisdom that the manner in which that shall be conducted should be left to those most immediately affected by

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today’s decision “threatens to substitute for present calm a disruptive round of race-related litigation,” post, at 2, and claims that today’s decision “risks serious harm to the law and for the Nation,” post, at 65. The segregationists also relied upon the likely practical consequences of ending the state-imposed system of racial separation. See, e.g., Brief for Appellees on Reargument in Davis v. County School Board, O. T. 1953, No. 3, p. 37 (“Yet a holding that school segregation by race violates the Constitution will result in upheaval in all of those places not now subject to Federal judicial scrutiny. This Court has made many decisions of widespread effect; none would affect more people more directly in more fundamental interests and, in fact, cause more chaos in local government than a reversal of the decision in this case”).23 And foreshadowing today’s dis-

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it, and that the wishes of the parents, both white and colored, should be ascertained before their children are forced into what may be an unwelcome contact?”). Accord, post, at 48 (“[L]ocal 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”); post, at 66 (“[W]hat of respect for democratic local decisionmaking by States and school boards?”); ibid. (explaining “that the Constitution grants local school districts a significant degree of leeway”).
23 See also Reply Brief for Appellees in Davis v. County School Board, O. T. 1953, No. 3, p. 17 (“The Court is . . . dealing with thousands of local school districts and schools. Is each to be the subject of litigation in the District Courts?”); Brief for Kansas on Reargument in Brown v. Board of Education, O. T. 1953, No. 1, p. 51 (“The delicate nature of the problem of segregation and the paramount interest of the State of Kansas in preserving the internal peace and tranquility of its people indicates that this is a question which can best be solved on the local level, at least until Congress declares otherwise”). Accord, post, at 61 (“At a minimum, the plurality’s views would threaten a surge of racebased litigation. Hundreds of state and federal statutes and regulations use racial classifications for educational or other purposes. . . . In many such instances, the contentious force of legal challenges to these classifications, meritorious or not, would displace earlier calm”); post, at 65 (“Indeed, the consequences of the approach the Court takes today are serious. Yesterday, the plans under review were lawful. Today,

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sent, the segregationists most heavily relied upon judicial precedent. See, e.g., Brief for Appellees on Reargument in Briggs v. Elliott, O. T. 1953, No. 2, p. 59 (“[I]t would be difficult indeed to find a case so favored by precedent as is the case for South Carolina here”).24

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they are not”); post, at 66 (predicting “further litigation, aggravating race-related conflict”).
24 See also Statement of Appellees Opposing Jurisdiction and Motion to Dismiss or Affirm in Davis v. County School Board, O. T. 1952, No. 3, p. 5 (“[I]t would be difficult to find from any field of law a legal principle more repeatedly and conclusively decided than the one sought to be raised by appellants”); Brief for Appellees in Davis v. County School Board, O. T. 1953, No. 3, p. 46–47 (“If this case were to be decided solely on the basis of precedent, this brief could have been much more limited. There is ample precedent in the decisions of this Court to uphold school segregation”); Brief for Petitioners in Gebhart v. Belton, O. T. 1952, No. 5, p. 27 (“Respondents ask this Court to upset a long established and well settled principle recognized by numerous state Legislatures, and Courts, both state and federal, over a long period of years”); Tr. of Oral Arg. in Briggs v. Elliott, O. T. 1953, No. 2, p. 79 (“But be that doctrine what it may, somewhere, sometime to every principle comes a moment of repose when it has been so often announced, so confidently relied upon, so long continued, that it passes the limits of judicial discretion and disturbance. . . . We relied on the fact that this Court had not once but seven times, I think it is, pronounced in favor of the separate but equal doctrine. We relied on the fact that the courts of last appeal of some sixteen or eighteen States have passed upon the validity of the separate but equal doctrine vis-avis the Fourteenth Amendment. We relied on the fact that Congress has continuously since 1862 segregated its schools in the District of Columbia”); Brief for Appellees in Briggs v. Elliott, O. T. 1952, No. 2, App. D (collecting citations of state and federal cases “[w]hich [e]nunciate the [p]rinciple that [s]tate [l]aws [p]roviding for [r]acial [s]egregation in the [p]ublic [s]chools do not [c]onflict with the Fourteenth Amendment”). Accord, post, at 22 (“[T]he Court set forth in Swann a basic principle of constitutional law—a principle of law that has found wide acceptance in the legal culture” (citations and internal quotation marks omitted)); post, at 25 (“Lower state and federal courts had considered the matter settled and uncontroversial even before this Court decided Swann”); post, at 26 (“Numerous state and federal courts explicitly relied upon Swann’s guidance for decades to follow”); post, at

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The similarities between the dissent’s arguments and the segregationists’ arguments do not stop there. Like the dissent, the segregationists repeatedly cautioned the Court to consider practicalities and not to embrace too theoretical a view of the Fourteenth Amendment.25 And just as the dissent argues that the need for these programs will lessen over time, the segregationists claimed that reliance on segregation was lessening and might eventually end.26
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27 (stating “how lower courts understood and followed Swann’s enunciation of the relevant legal principle”); post, at 30 (“The constitutional principle enunciated in Swann, reiterated in subsequent cases, and relied upon over many years, provides, and has widely been thought to provide, authoritative legal guidance”); post, at 61 (“[T]oday’s opinion will require setting aside the laws of several States and many local communities”); post, at 66 (“And what has happened to Swann? To McDaniel? To Crawford? To Harris? To School Committee of Boston? To Seattle School Dist. No. 1? After decades of vibrant life, they would all, under the plurality’s logic, be written out of the law”).
25 Compare Brief for Appellees in Davis v. County School Board, O. T. 1952, No. 3, p. 16–17 (“ ‘It is by such practical considerations based on experience rather than by theoretical inconsistencies that the question of equal protection is to be answered’ ” (quoting Railway Express Agency, Inc. v. New York, 336 U. S. 110 (1949))); Brief for Appellees on Reargument in Davis v. County School Board, O. T. 1953, No. 3, p. 76 (“The question is a practical one for them to solve; it is not subject to solution in the theoretical realm of abstract principles”); Tr. of Oral Arg. in Davis v. County School Board, O. T. 1953, No. 4, p. 86 (“[Y]ou cannot talk about this problem just in a vacuum in the manner of a law school discussion”), with post, at 57 (“The Founders meant the Constitution as a practical document”).
26 Compare Brief for Kansas on Reargument in Brown v. Board of Education, O. T. 1953, No. 1, p. 57 (“[T]he people of Kansas . . . are abandoning the policy of segregation whenever local conditions and local attitudes make it feasible”), Brief for Appellees on Reargument in Davis v. County School Board, O. T. 1953, No. 3, p. 76 (“As time passes, it may well be that segregation will end”), with post, at 19 (“[T]hey use race-conscious criteria in limited and gradually diminishing ways”); post, at 48 (“[E]ach plan’s use of race-conscious elements is diminished compared to the use of race in preceding integration plans”); post, at 55 (describing the “historically-diminishing use of race” in the school

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THOMAS, J., concurring
What was wrong in 1954 cannot be right today.27 Whatever else the Court’s rejection of the segregationists’ arguments in Brown might have established, it certainly made clear that state and local governments cannot take from the Constitution a right to make decisions on the basis of race by adverse possession. The fact that state and local governments had been discriminating on the basis of race for a long time was irrelevant to the Brown Court. The fact that racial discrimination was preferable to the relevant communities was irrelevant to the Brown Court. And the fact that the state and local governments had relied on statements in this Court’s opinions was irrelevant to the Brown Court. The same principles guide today’s decision. None of the considerations trumpeted by the dissent is relevant to the constitutionality of the school boards’ race-based plans because no contextual detail—or
——————
districts). 27 It is no answer to say that these cases can be distinguished from
Brown because Brown involved invidious racial classifications whereas the racial classifications here are benign. See post, at 62. How does one tell when a racial classification is invidious? The segregationists in Brown argued that their racial classifications were benign, not invidious. See Tr. of Oral Arg. in Briggs v. Elliott, O. T. 1953, No. 2, p. 83 (“It [South Carolina] is confident of its good faith and intention to produce equality for all of its children of whatever race or color. It is convinced that the happiness, the progress and the welfare of these children is best promoted in segregated schools”); Brief for Appellees on Reargument in Davis v. County School Board, O. T. 1953, No. 3, p. 82–83 (“Our many hours of research and investigation have led only to confirmation of our view that segregation by race in Virginia’s public schools at this time not only does not offend the Constitution of the United States but serves to provide a better education for living for the children of both races”); Tr. of Oral Arg. in Davis v. County School Board, O. T. 1952, No. 3, p. 71 (“[T]o make such a transition, would undo what we have been doing, and which we propose to continue to do for the uplift and advancement of the education of both races. It would stop this march of progress, this onward sweep”). It is the height of arrogance for Members of this Court to assert blindly that their motives are better than others.

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collection of contextual details, post, at 2–22—can “provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race.” Adarand, 515 U. S., at 240 (THOMAS, J., concurring in part and concurring in judgment).28
In place of the color-blind Constitution, the dissent would permit measures to keep the races together and proscribe measures to keep the races apart.29 See post, at 28–34, 64–65. Although no such distinction is apparent in
——————
28 See also id., at 8–9 (“It has been urged that [these state laws and policies] derive validity as a consequence of a long duration supported and made possible by a long line of judicial decisions, including expressions in some of the decisions of this Court. At the same time, it is urged that these laws are valid as a matter of constitutionally permissible social experimentation by the States. On the matter of stare decisis, I submit that the duration of the challenged practice, while it is persuasive, is not controlling. . . . As a matter of social experimentation, the laws in question must satisfy the requirements of the Constitution. While this Court has permitted the States to legislate or otherwise officially act experimentally in the social and economic fields, it has always recognized and held that this power is subject to the limitations of the Constitution, and that the tests of the Constitution must be met”); Reply Brief for Appellants in Briggs v. Elliott, O. T. 1953, No. 2, pp. 18–19 (“The truth of the matter is that this is an attempt to place local mores and customs above the high equalitarian principles of our Government as set forth in our Constitution and particularly the Fourteenth Amendment. This entire contention is tantamount to saying that the vindication and enjoyment of constitutional rights recognized by this Court as present and personal can be postponed whenever such postponement is claimed to be socially desirable”).
29 The dissent does not face the complicated questions attending its proposed standard. For example, where does the dissent’s principle stop? Can the government force racial mixing against the will of those being mixed? Can the government force black families to relocate to white neighborhoods in the name if bringing the races together? What about historically black colleges, which have “established traditions and programs that might disproportionately appeal to one race or another”? United States v. Fordice, 505 U. S. 717, 749 (1992) (THOMAS, J., concurring). The dissent does not and cannot answer these questions because the contours of the distinction it propounds rest entirely in the eye of the beholder.

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the Fourteenth Amendment, the dissent would constitutionalize today’s faddish social theories that embrace that distinction. The Constitution is not that malleable. Even if current social theories favor classroom racial engineering as necessary to “solve the problems at hand,” post, at 21, the Constitution enshrines principles independent of social theories. See Plessy, 163 U. S., at 559 (Harlan, J., dissenting) (“The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time . . . . But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. . . . Our Constitution is color-blind, and neither knows nor tolerates classes among citizens”). Indeed, if our history has taught us anything, it has taught us to beware of elites bearing racial theories.30 See, e.g., Dred Scott v.
——————
30 JUSTICE BREYER’s good intentions, which I do not doubt, have the shelf life of JUSTICE BREYER’s tenure. Unlike the dissenters, I am unwilling to delegate my constitutional responsibilities to local school boards and allow them to experiment with race-based decisionmaking on the assumption that their intentions will forever remain as good as JUSTICE BREYER’s. See The Federalist No. 51, p. 349 (J. Cooke ed. 1961) (“If men were angels, no government would be necessary”). Indeed, the racial theories endorsed by the Seattle school board should cause the dissenters to question whether local school boards should be entrusted with the power to make decisions on the basis of race. The Seattle school district’s Website formerly contained the following definition of “cultural racism”: “Those aspects of society that overtly and covertly attribute value and normality to white people and whiteness, and devalue, stereotype, and label people of color as ‘other,’ different, less than, or render them invisible. Examples of these norms include defining white skin tones as nude or flesh colored, having a future time orientation, emphasizing individualism as opposed to a more collective ideology, defining one form of English as standard . . . .” See Harrell, School Web Site Removed: Examples of Racism Sparked Controversy, Seattle Post-Intelligencer, June 2, 2006, p. B1. After the site was removed, the district offered the comforting clarification that the site was not intended “ ‘to hold onto unsuccessful concepts such as melting

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Sandford, 19 How. 393, 407 (1857) (“[T]hey [members of the “negro African race”] had no rights which the white man was bound to respect”). Can we really be sure that the racial theories that motivated Dred Scott and Plessy are a relic of the past or that future theories will be nothing but beneficent and progressive? That is a gamble I am unwilling to take, and it is one the Constitution does not allow.

* * *
The plans before us base school assignment decisions on students’ race. Because “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens,” such race-based decisionmaking is unconstitutional. Plessy, supra, at 559 (Harlan, J., dissenting). I concur in THE CHIEF JUSTICE’s opinion so holding.

——————
pot or colorblind mentality.’ ” Ibid.; see also ante, at 22, n. 15 (plurality opinion).
More recently, the school district sent a delegation of high school students to a “White Privilege Conference.” See Equity and Race Relations White Privilege Conference, https://www.seattleschools. org/area/equityandrace/whiteprivilegeconference.xml. One conference participant described “white privilege” as “an invisible package of unearned assets which I can count on cashing in each day, but about which I was meant to remain oblivious. White Privilege is like an invisible weightless knapsack of special provisions, maps, passports, codebooks, visas, clothes, tools, and blank checks.” See White Privilege Conference, Questions and Answers, http://www.uccs.edu/~wpc/ faqs.htm; see generally Westneat, School District’s Obsessed with Race, Seattle Times, Apr. 1, 2007, p. B1 (describing racial issues in Seattle schools).

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1

Opinion of KENNEDY, J.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 05–908 and 05–915
_________________

PARENTS INVOLVED IN COMMUNITY

SCHOOLS, PETITIONER

05–908

v.

SEATTLE SCHOOL DISTRICT NO. 1 ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
 APPEALS FOR THE NINTH CIRCUIT


CRYSTAL D. MEREDITH, CUSTODIAL PARENT AND NEXT

FRIEND OF JOSHUA RYAN MCDONALD, PETITIONER

05–915

v.

JEFFERSON COUNTY BOARD OF EDUCATION ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
 APPEALS FOR THE SIXTH CIRCUIT

[June 28, 2007] 


JUSTICE KENNEDY, concurring in part and concurring in the judgment.
The Nation’s schools strive to teach that our strength comes from people of different races, creeds, and cultures uniting in commitment to the freedom of all. In these cases two school districts in different parts of the country seek to teach that principle by having classrooms that reflect the racial makeup of the surrounding community. That the school districts consider these plans to be necessary should remind us our highest aspirations are yet unfulfilled. But the solutions mandated by these school districts must themselves be lawful. To make race matter now so that it might not matter later may entrench the very prejudices we seek to overcome. In my view the state-mandated racial classifications at issue, official

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labels proclaiming the race of all persons in a broad class of citizens—elementary school students in one case, high school students in another—are unconstitutional as the cases now come to us.
I agree with THE CHIEF JUSTICE that we have jurisdiction to decide the cases before us and join Parts I and II of the Court’s opinion. I also join Parts III–A and III–C for reasons provided below. My views do not allow me to join the balance of the opinion by THE CHIEF JUSTICE, which seems to me to be inconsistent in both its approach and its implications with the history, meaning, and reach of the Equal Protection Clause. JUSTICE BREYER’s dissenting opinion, on the other hand, rests on what in my respectful submission is a misuse and mistaken interpretation of our precedents. This leads it to advance propositions that, in my view, are both erroneous and in fundamental conflict with basic equal protection principles. As a consequence, this separate opinion is necessary to set forth my conclusions in the two cases before the Court.

I
The opinion of the Court and JUSTICE BREYER’s dissenting opinion (hereinafter dissent) describe in detail the history of integration efforts in Louisville and Seattle. These plans classify individuals by race and allocate benefits and burdens on that basis; and as a result, they are to be subjected to strict scrutiny. See Johnson v. California, 543 U. S. 499, 505–506 (2005); ante, at 11. The dissent finds that the school districts have identified a compelling interest in increasing diversity, including for the purpose of avoiding racial isolation. See post, at 37–45. The plurality, by contrast, does not acknowledge that the school districts have identified a compelling interest here. See ante, at 17–25. For this reason, among others, I do not join Parts III–B and IV. Diversity, depending on its meaning and definition, is a compelling educational goal a

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school district may pursue. It is well established that when a governmental policy is
subjected to strict scrutiny, “the government has the burden of proving that racial classifications ‘are narrowly tailored measures that further compelling governmental interests.’ ” Johnson, supra, at 505 (quoting Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 227 (1995)). “Absent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining what classifications are ‘benign’ or ‘remedial’ and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics.” Richmond v. J. A. Croson Co., 488 U. S. 469, 493 (1989) (plurality opinion). And the inquiry into less restrictive alternatives demanded by the narrow tailoring analysis requires in many cases a thorough understanding of how a plan works. The government bears the burden of justifying its use of individual racial classifications. As part of that burden it must establish, in detail, how decisions based on an individual student’s race are made in a challenged governmental program. The Jefferson County Board of Education fails to meet this threshold mandate.
Petitioner Crystal Meredith challenges the district’s decision to deny her son Joshua McDonald a requested transfer for his kindergarten enrollment. The district concedes it denied his request “under the guidelines,” which is to say, on the basis of Joshua’s race. Brief for Respondents in No. 05–915, p. 10; see also App. in No. 05– 915, p. 97. Yet the district also maintains that the guidelines do not apply to “kindergartens,” Brief for Respondents in No. 05–915, at 4, and it fails to explain the discrepancy. Resort to the record, including the parties’ Stipulation of Facts, further confuses the matter. See App. in No. 05–915, at 43 (“Transfer applications can be denied because of lack of available space or, for students in grades other than Primary 1 (kindergarten), the racial

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guidelines in the District’s current student assignment plan”); id., at 29 (“The student assignment plan does not apply to . . . students in Primary 1”); see also Stipulation of Facts in No. 3:02–CV–00620–JGH; Doc. 32, Exh. 44, p. 6 (2003–04 Jefferson County Public Schools Elementary Student Assignment Application, Section B) (“Assignment is made to a school for Primary 1 (Kindergarten) through Grade Five as long as racial guidelines are maintained. If the Primary 1 (Kindergarten) placement does not enhance racial balance, a new application must be completed for Primary 2 (Grade One)”).
The discrepancy identified is not some simple and straightforward error that touches only upon the peripheries of the district’s use of individual racial classifications. To the contrary, Jefferson County in its briefing has explained how and when it employs these classifications only in terms so broad and imprecise that they cannot withstand strict scrutiny. See, e.g., Brief for Respondents in No. 05–915, at 4–10. While it acknowledges that racial classifications are used to make certain assignment decisions, it fails to make clear, for example, who makes the decisions; what if any oversight is employed; the precise circumstances in which an assignment decision will or will not be made on the basis of race; or how it is determined which of two similarly situated children will be subjected to a given race-based decision. See ibid.; see also App. in No. 05–915, at 38, 42 (indicating that decisions are “based on . . . the racial guidelines” without further explanation); id., at 81 (setting forth the blanket mandate that “[s]chools shall work cooperatively with each other and with central office to ensure that enrollment at all schools [in question] is within the racial guidelines annually and to encourage that the enrollment at all schools progresses toward the midpoint of the guidelines”); id., at 43, 76–77, 81–83; McFarland v. Jefferson Cty. Public Schools, 330 F. Supp. 2d 834, 837–845, 855–862 (WD Ky. 2004).

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When litigation, as here, involves a “complex, comprehensive plan that contains multiple strategies for achieving racially integrated schools,” Brief for Respondents in No. 05–915, at 4, these ambiguities become all the more problematic in light of the contradictions and confusions that result. Compare, e.g., App. in No. 05–915, at 37 (“Each [Jefferson County] school . . . has a designated geographic attendance area, which is called the ‘resides area’ of the school[, and each] such school is the ‘resides school’ for those students whose parent’s or guardian’s residence address is within the school’s geographic attendance area”); id., at 82 (“All elementary students . . . shall be assigned to the school which serves the area in which they reside”); and Brief for Respondents in No. 05–915, at 5 (“There are no selection criteria for admission to [an elementary school student’s] resides school, except attainment of the appropriate age and completion of the previous grade”), with App. in No. 05–915, at 38 (“Decisions to assign students to schools within each cluster are based on available space within the [elementary] schools and the racial guidelines in the District’s current student assignment plan”); id., at 82 (acknowledging that a student may not be assigned to his or her resides school if it “has reached . . . the extremes of the racial guidelines”).
One can attempt to identify a construction of Jefferson County’s student assignment plan that, at least as a logical matter, complies with these competing propositions; but this does not remedy the underlying problem. Jefferson County fails to make clear to this Court—even in the limited respects implicated by Joshua’s initial assignment and transfer denial—whether in fact it relies on racial classifications in a manner narrowly tailored to the interest in question, rather than in the far-reaching, inconsistent, and ad hoc manner that a less forgiving reading of the record would suggest. When a court subjects governmental action to strict scrutiny, it cannot construe ambi-

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guities in favor of the State. As for the Seattle case, the school district has gone
further in describing the methods and criteria used to determine assignment decisions on the basis of individual racial classifications. See, e.g., Brief for Respondents in No. 05–908, p. 5–11. The district, nevertheless, has failed to make an adequate showing in at least one respect. It has failed to explain why, in a district composed of a diversity of races, with fewer than half of the students classified as “white,” it has employed the crude racial categories of “white” and “non-white” as the basis for its assignment decisions. See, e.g., id., at 1–11.
The district has identified its purposes as follows: “(1) to promote the educational benefits of diverse school enrollments; (2) to reduce the potentially harmful effects of racial isolation by allowing students the opportunity to opt out of racially isolated schools; and (3) to make sure that racially segregated housing patterns did not prevent nonwhite students from having equitable access to the most popular over-subscribed schools.” Id., at 19. Yet the school district does not explain how, in the context of its diverse student population, a blunt distinction between “white” and “non-white” furthers these goals. As the Court explains, “a school with 50 percent Asian-American students and 50 percent white students but no AfricanAmerican, Native-American, or Latino students would qualify as balanced, while a school with 30 percent AsianAmerican, 25 percent African-American, 25 percent Latino, and 20 percent white students would not.” Ante, at 15–16; see also Brief for United States as Amicus Curiae in No. 05–908, pp. 13–14. Far from being narrowly tailored to its purposes, this system threatens to defeat its own ends, and the school district has provided no convincing explanation for its design. Other problems are evident in Seattle’s system, but there is no need to address them now. As the district fails to account for the classification

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Opinion of KENNEDY, J.
system it has chosen, despite what appears to be its ill fit, Seattle has not shown its plan to be narrowly tailored to achieve its own ends; and thus it fails to pass strict scrutiny.
II
Our Nation from the inception has sought to preserve and expand the promise of liberty and equality on which it was founded. Today we enjoy a society that is remarkable in its openness and opportunity. Yet our tradition is to go beyond present achievements, however significant, and to recognize and confront the flaws and injustices that remain. This is especially true when we seek assurance that opportunity is not denied on account of race. The enduring hope is that race should not matter; the reality is that too often it does.
This is by way of preface to my respectful submission that parts of the opinion by THE CHIEF JUSTICE imply an all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account. The plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race. The plurality’s postulate that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” ante, at 40–41, is not sufficient to decide these cases. Fifty years of experience since Brown v. Board of Education, 347 U. S. 483 (1954), should teach us that the problem before us defies so easy a solution. School districts can seek to reach Brown’s objective of equal educational opportunity. The plurality opinion is at least open to the interpretation that the Constitution requires school districts to ignore the problem of de facto resegregation in schooling. I cannot endorse that conclusion. To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of

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racial isolation in schools, it is, in my view, profoundly mistaken.
The statement by Justice Harlan that “[o]ur Constitution is color-blind” was most certainly justified in the context of his dissent in Plessy v. Ferguson, 163 U. S. 537, 559 (1896). The Court’s decision in that case was a grievous error it took far too long to overrule. Plessy, of course, concerned official classification by race applicable to all persons who sought to use railway carriages. And, as an aspiration, Justice Harlan’s axiom must command our assent. In the real world, it is regrettable to say, it cannot be a universal constitutional principle.
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. Cf. Grutter v. Bollinger, 539 U. S. 306 (2003); id., at 387–388 (KENNEDY, J., dissenting). If school authorities are concerned that the student-body compositions of certain schools interfere 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 systematic, individual typing by race.
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 with 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. These mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race, so it is unlikely any of them would de-

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Opinion of KENNEDY, J.
mand strict scrutiny to be found permissible. See Bush v. Vera, 517 U. S. 952, 958 (1996) (plurality opinion) (“Strict scrutiny does not apply merely because redistricting is performed with consciousness of race. . . . Electoral district lines are ‘facially race neutral’ so a more searching inquiry is necessary before strict scrutiny can be found applicable in redistricting cases than in cases of ‘classifications based explicitly on race’ ” (quoting Adarand, 515 U. S., at 213)). Executive and legislative branches, which for generations now have considered these types of policies and procedures, should be permitted to employ them with candor and with confidence that a constitutional violation does not occur whenever a decisionmaker considers the impact a given approach might have on students of different races. Assigning to each student a personal designation according to a crude system of individual racial classifications is quite a different matter; and the legal analysis changes accordingly.
Each respondent has asserted that its assignment of individual students by race is permissible because there is no other way to avoid racial isolation in the school districts. Yet, as explained, each has failed to provide the support necessary for that proposition. Cf. Croson, 488 U. S., at 501 (“The history of racial classifications in this country suggests that blind judicial deference to legislative or executive pronouncements of necessity has no place in equal protection analysis”). And individual racial classifications employed in this manner may be considered legitimate only if they are a last resort to achieve a compelling interest. See id., at 519 (KENNEDY, J., concurring in part and concurring in judgment).
In the cases before us it is noteworthy that the number of students whose assignment depends on express racial classifications is limited. I join Part III–C of the Court’s opinion because I agree that in the context of these plans, the small number of assignments affected suggests that

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the schools could have achieved their stated ends through different means. These include the facially race-neutral means set forth above or, if necessary, a more nuanced, individual evaluation of school needs and student characteristics that might include race as a component. The latter approach would be informed by Grutter, though of course the criteria relevant to student placement would differ based on the age of the students, the needs of the parents, and the role of the schools.

III
The dissent rests on the assumptions that these sweeping race-based classifications of persons are permitted by existing precedents; that its confident endorsement of race categories for each child in a large segment of the community presents no danger to individual freedom in other, prospective realms of governmental regulation; and that the racial classifications used here cause no hurt or anger of the type the Constitution prevents. Each of these premises is, in my respectful view, incorrect.

A
The dissent’s reliance on this Court’s precedents to justify the explicit, sweeping, classwide racial classifications at issue here is a misreading of our authorities that, it appears to me, tends to undermine well-accepted principles needed to guard our freedom. And in his critique of that analysis, I am in many respects in agreement with THE CHIEF JUSTICE. The conclusions he has set forth in Part III–A of the Court’s opinion are correct, in my view, because the compelling interests implicated in the cases before us are distinct from the interests the Court has recognized in remedying the effects of past intentional discrimination and in increasing diversity in higher education. See ante, at 12–13. As the Court notes, we recognized the compelling nature of the interest in remedying

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past intentional discrimination in Freeman v. Pitts, 503 U. S. 467, 494 (1992), and of the interest in diversity in higher education in Grutter. At the same time, these compelling interests, in my view, do help inform the present inquiry. And to the extent the plurality opinion can be interpreted to foreclose consideration of these interests, I disagree with that reasoning.
As to the dissent, the general conclusions upon which it relies have no principled limit and would result in the broad acceptance of governmental racial classifications in areas far afield from schooling. The dissent’s permissive strict scrutiny (which bears more than a passing resemblance to rational-basis review) could invite widespread governmental deployment of racial classifications. There is every reason to think that, if the dissent’s rationale were accepted, Congress, assuming an otherwise proper exercise of its spending authority or commerce power, could mandate either the Seattle or the Jefferson County plans nationwide. There seems to be no principled rule, moreover, to limit the dissent’s rationale to the context of public schools. The dissent emphasizes local control, see post, at 48–49, the unique history of school desegregation, see post, at 2, and the fact that these plans make less use of race than prior plans, see post, at 57, but these factors seem more rhetorical than integral to the analytical structure of the opinion.
This brings us to the dissent’s reliance on the Court’s opinions in Gratz v. Bollinger, 539 U. S. 244 (2003), and Grutter, 539 U. S. 306. If today’s dissent said it was adhering to the views expressed in the separate opinions in Gratz and Grutter, see Gratz, 539 U. S., at 281 (BREYER, J., concurring in judgment); id., at 282 (STEVENS, J., dissenting); id., at 291 (SOUTER, J., dissenting); id., at 298 (GINSBURG, J., dissenting); Grutter, supra, at 344 (GINSBURG, J., concurring), that would be understandable, and likely within the tradition—to be invoked, in my view,

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in rare instances—that permits us to maintain our own positions in the face of stare decisis when fundamental points of doctrine are at stake. See, e.g., Federal Maritime Comm’n v. South Carolina Ports Authority, 535 U. S. 743, 770 (2002) (STEVENS, J., dissenting). To say, however, that we must ratify the racial classifications here at issue based on the majority opinions in Gratz and Grutter is, with all respect, simply baffling.
Gratz involved a system where race was not the entire classification. The procedures in Gratz placed much less reliance on race than do the plans at issue here. The issue in Gratz arose, moreover, in the context of college admissions where students had other choices and precedent supported the proposition that First Amendment interests give universities particular latitude in defining diversity. See Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 312– 314 (1978) (opinion of Powell, J.). Even so the race factor was found to be invalid. Gratz, supra, at 251. If Gratz is to be the measure, the racial classification systems here are a fortiori invalid. If the dissent were to say that college cases are simply not applicable to public school systems in kindergarten through high school, this would seem to me wrong, but at least an arguable distinction. Under no fair reading, though, can the majority opinion in Gratz be cited as authority to sustain the racial classifications under consideration here.
The same must be said for the controlling opinion in Grutter. There the Court sustained a system that, it found, was flexible enough to take into account “all pertinent elements of diversity,” 539 U. S., at 341 (internal quotation marks omitted), and considered race as only one factor among many, id., at 340. Seattle’s plan, by contrast, relies upon a mechanical formula that has denied hundreds of students their preferred schools on the basis of three rigid criteria: placement of siblings, distance from schools, and race. If those students were considered for a

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whole range of their talents and school needs with race as just one consideration, Grutter would have some application. That, though, is not the case. The only support today’s dissent can draw from Grutter must be found in its various separate opinions, not in the opinion filed for the Court.
B
To uphold these programs the Court is asked to brush aside two concepts of central importance for determining the validity of laws and decrees designed to alleviate the hurt and adverse consequences resulting from race discrimination. The first is the difference between de jure and de facto segregation; the second, the presumptive invalidity of a State’s use of racial classifications to differentiate its treatment of individuals.
In the immediate aftermath of Brown the Court addressed other instances where laws and practices enforced de jure segregation. See, e.g., Loving v. Virginia, 388 U. S. 1 (1967) (marriage); New Orleans City Park Improvement Assn. v. Detiege, 358 U. S. 54 (1958) (per curiam) (public parks); Gayle v. Browder, 352 U. S. 903 (1956) (per curiam) (buses); Holmes v. Atlanta, 350 U. S. 879 (1955) (per curiam) (golf courses); Mayor of Baltimore v. Dawson, 350 U. S. 877 (1955) (per curiam) (beaches). But with reference to schools, the effect of the legal wrong proved most difficult to correct. To remedy the wrong, school districts that had been segregated by law had no choice, whether under court supervision or pursuant to voluntary desegregation efforts, but to resort to extraordinary measures including individual student and teacher assignment to schools based on race. See, e.g., Swann v. CharlotteMecklenburg Bd. of Ed., 402 U. S. 1, 8–10 (1971); see also Croson, 488 U. S., at 519 (KENNEDY, J., concurring in part and concurring in judgment) (noting that racial classifications “may be the only adequate remedy after a judicial

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Opinion of KENNEDY, J. 


determination that a State or its instrumentality has violated the Equal Protection Clause”). So it was, as the dissent observes, see post, at 13–14, that Louisville classified children by race in its school assignment and busing plan in the 1970’s.
Our cases recognized a fundamental difference between those school districts that had engaged in de jure segregation and those whose segregation was the result of other factors. School districts that had engaged in de jure segregation had an affirmative constitutional duty to desegregate; those that were de facto segregated did not. Compare Green v. School Bd. of New Kent Cty., 391 U. S. 430, 437–438 (1968), with Milliken v. Bradley, 418 U. S. 717, 745 (1974). The distinctions between de jure and de facto segregation extended to the remedies available to governmental units in addition to the courts. For example, in Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 274 (1986), the plurality noted: “This Court never has held that societal discrimination alone is sufficient to justify a racial classification. Rather, the Court has insisted upon some showing of prior discrimination by the governmental unit involved before allowing limited use of racial classifications in order to remedy such discrimination.” The Court’s decision in Croson, supra, reinforced the difference between the remedies available to redress de facto and de jure discrimination:
“To accept [a] claim that past societal discrimination alone can serve as the basis for rigid racial preferences would be to open the door to competing claims for ‘remedial relief’ for every disadvantaged group. The dream of a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs.” Id., at 505–506.

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15

Opinion of KENNEDY, J.
From the standpoint of the victim, it is true, an injury stemming from racial prejudice can hurt as much when the demeaning treatment based on race identity stems from bias masked deep within the social order as when it is imposed by law. The distinction between government and private action, furthermore, can be amorphous both as a historical matter and as a matter of present-day finding of fact. Laws arise from a culture and vice versa. Neither can assign to the other all responsibility for persisting injustices.
Yet, like so many other legal categories that can overlap in some instances, the constitutional distinction between de jure and de facto segregation has been thought to be an important one. It must be conceded its primary function in school cases was to delimit the powers of the Judiciary in the fashioning of remedies. See, e.g., Milliken, supra, at 746. The distinction ought not to be altogether disregarded, however, when we come to that most sensitive of all racial issues, an attempt by the government to treat whole classes of persons differently based on the government’s systematic classification of each individual by race. There, too, the distinction serves as a limit on the exercise of a power that reaches to the very verge of constitutional authority. Reduction of an individual to an assigned racial identity for differential treatment is among the most pernicious actions our government can undertake. The allocation of governmental burdens and benefits, contentious under any circumstances, is even more divisive when allocations are made on the basis of individual racial classifications. See, e.g., Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978); Adarand, 515 U. S. 200.
Notwithstanding these concerns, allocation of benefits and burdens through individual racial classifications was found sometimes permissible in the context of remedies for de jure wrong. Where there has been de jure segregation, there is a cognizable legal wrong, and the courts and

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legislatures have broad power to remedy it. The remedy, though, was limited in time and limited to the wrong. The Court has allowed school districts to remedy their prior de jure segregation by classifying individual students based on their race. See North Carolina Bd. of Ed. v. Swann, 402 U. S. 43, 45–46 (1971). The limitation of this power to instances where there has been de jure segregation serves to confine the nature, extent, and duration of governmental reliance on individual racial classifications.
The cases here were argued upon the assumption, and come to us on the premise, that the discrimination in question did not result from de jure actions. And when de facto discrimination is at issue our tradition has been that the remedial rules are different. The State must seek alternatives to the classification and differential treatment of individuals by race, at least absent some extraordinary showing not present here.

C
The dissent refers to an opinion filed by Judge Kozinski in one of the cases now before us, and that opinion relied upon an opinion filed by Chief Judge Boudin in a case presenting an issue similar to the one here. See post, at 35 (citing 426 F. 3d 1162, 1193–1196 (CA9 2005) (concurring opinion) (citing Comfort v. Lynn School Comm., 418 F. 3d 1, 27–29 (CA1 2005) (Boudin, C. J., concurring))). Though this may oversimplify the matter a bit, one of the main concerns underlying those opinions was this: If it is legitimate for school authorities to work to avoid racial isolation in their schools, must they do so only by indirection and general policies? Does the Constitution mandate this inefficient result? Why may the authorities not recognize the problem in candid fashion and solve it altogether through resort to direct assignments based on student racial classifications? So, the argument proceeds, if race is the problem, then perhaps race is the solution.

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17

Opinion of KENNEDY, J.
The argument ignores the dangers presented by individual classifications, dangers that are not as pressing when the same ends are achieved by more indirect means. When the government classifies an individual by race, it must first define what it means to be of a race. Who exactly is white and who is nonwhite? To be forced to live under a state-mandated racial label is inconsistent with the dignity of individuals in our society. And it is a label that an individual is powerless to change. Governmental classifications that command people to march in different directions based on racial typologies can cause a new divisiveness. The practice can lead to corrosive discourse, where race serves not as an element of our diverse heritage but instead as a bargaining chip in the political process. On the other hand race-conscious measures that do not rely on differential treatment based on individual classifications present these problems to a lesser degree.
The idea that if race is the problem, race is the instrument with which to solve it cannot be accepted as an analytical leap forward. And if this is a frustrating duality of the Equal Protection Clause it simply reflects the duality of our history and our attempts to promote freedom in a world that sometimes seems set against it. Under our Constitution the individual, child or adult, can find his own identity, can define her own persona, without state intervention that classifies on the basis of his race or the color of her skin.
* * * 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. 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

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population. Race may be one component of that diversity, but other demographic factors, plus special talents and needs, should also be considered. What the government is not permitted to do, absent a showing of necessity not made here, is to classify every student on the basis of race and to assign each of them to schools based on that classification. Crude measures of this sort threaten to reduce children to racial chits valued and traded according to one school’s supply and another’s demand.
That statement, to be sure, invites this response: A sense of stigma may already become the fate of those separated out by circumstances beyond their immediate control. But to this the replication must be: Even so, measures other than differential treatment based on racial typing of individuals first must be exhausted.
The decision today should not prevent school districts from continuing the important work of bringing together students of different racial, ethnic, and economic backgrounds. Due to a variety of factors—some influenced by government, some not—neighborhoods in our communities do not reflect the diversity of our Nation as a whole. Those entrusted with directing our public schools can bring to bear the creativity of experts, parents, administrators, and other concerned citizens to find a way to achieve the compelling interests they face without resorting to widespread governmental allocation of benefits and burdens on the basis of racial classifications.
With this explanation I concur in the judgment of the Court.

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1

STEVENS, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 05–908 and 05–915
_________________

PARENTS INVOLVED IN COMMUNITY

SCHOOLS, PETITIONER

05–908

v.

SEATTLE SCHOOL DISTRICT NO. 1 ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
 APPEALS FOR THE NINTH CIRCUIT


CRYSTAL D. MEREDITH, CUSTODIAL PARENT AND NEXT

FRIEND OF JOSHUA RYAN MCDONALD, PETITIONER

05–915

v.

JEFFERSON COUNTY BOARD OF EDUCATION ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
 APPEALS FOR THE SIXTH CIRCUIT

[June 28, 2007] 


JUSTICE STEVENS, dissenting.
While I join JUSTICE BREYER’s eloquent and unanswerable dissent in its entirety, it is appropriate to add these words.
There is a cruel irony in THE CHIEF JUSTICE’s reliance on our decision in Brown v. Board of Education, 349 U. S. 294 (1955). The first sentence in the concluding paragraph of his opinion states: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.” Ante, at 40. This sentence reminds me of Anatole France’s observation: “[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal

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their bread.”1 THE CHIEF JUSTICE fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools.2 In this and other ways, THE CHIEF JUSTICE rewrites the history of one of this Court’s most important decisions. Compare ante, at 39 (“history will be heard”), with Brewer v. Quarterman, 550 U. S. ___, ___ (2007) (slip op., at 11) (ROBERTS, C. J., dissenting) (“It is a familiar adage that history is written by the victors”).
THE CHIEF JUSTICE rejects the conclusion that the racial classifications at issue here should be viewed differently than others, because they do not impose burdens on one race alone and do not stigmatize or exclude.3 The only justification for refusing to acknowledge the obvious im-

——————
1 Le Lys Rouge (The Red Lily) 95 (W. Stephens transl. 6th ed. 1922). 2 See, e.g., J. Wilkinson, From Brown to Bakke 11 (1979) (“Everyone understands that Brown v. Board of Education helped deliver the Negro from over three centuries of legal bondage”); Black, The Lawfulness of the Segregation Decisions, 69 Yale L. J. 421, 424–425 (“History, too, tells us that segregation was imposed on one race by the other race; consent was not invited or required. Segregation in the South grew up and is kept going because and only because the white race has wanted it that way—an incontrovertible fact which itself hardly consorts with equality”). 3 I have long adhered to the view that a decision to exclude a member of a minority because of his race is fundamentally different from a decision to include a member of a minority for that reason. See, e.g., Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 243, 248, n. 6 (1995) (STEVENS, J., dissenting); Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 316 (1986) (same). This distinction is critically important in the context of education. While the focus of our opinions is often on the benefits that minority schoolchildren receive from an integrated education, see, e.g., ante, at 15 (THOMAS, J., concurring), children of all races benefit from integrated classrooms and playgrounds, see Wygant, 476 U. S., at 316 (“[T]he fact that persons of different races do, indeed, have differently colored skin, may give rise to a belief that there is some significant difference between such persons. The inclusion of minority teachers in the educational process inevitably tends to dispel that illusion whereas their exclusion could only tend to foster it”).

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STEVENS, J., dissenting
portance of that difference is the citation of a few recent opinions—none of which even approached unanimity— grandly proclaiming that all racial classifications must be analyzed under “strict scrutiny.” See, e.g., Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 227 (1995). Even today, two of our wisest federal judges have rejected such a wooden reading of the Equal Protection Clause in the context of school integration. See 426 F. 3d 1162, 1193– 1196 (CA9 2005) (Kozinski, J., concurring); Comfort v. Lynn School Comm., 418 F. 3d 1, 27–29 (CA1 2005) (Boudin, C. J., concurring). The Court’s misuse of the three-tiered approach to Equal Protection analysis merely reconfirms my own view that there is only one such Clause in the Constitution. See Craig v. Boren, 429 U. S. 190, 211 (1976) (concurring opinion).4
If we look at cases decided during the interim between Brown and Adarand, we can see how a rigid adherence to tiers of scrutiny obscures Brown’s clear message. Perhaps the best example is provided by our approval of the decision of the Supreme Judicial Court of Massachusetts in 1967 upholding a state statute mandating racial integration in that State’s school system. See School Comm. of

——————
4 THE CHIEF JUSTICE twice cites my dissent in Fullilove v. Klutznick, 448 U. S. 448 (1980). See ante, at 12, 23. In that case, I stressed the importance of confining a remedy for past wrongdoing to the members of the injured class. See 448 U. S., at 539. The present cases, unlike Fullilove but like our decision in Wygant, 476 U. S. 267, require us to “ask whether the Board[s’] actions[s] advanc[e] the public interest in educating children for the future,” id., at 313 (STEVENS, J., dissenting) (emphasis added). See ibid. (“In my opinion, it is not necessary to find that the Board of Education has been guilty of racial discrimination in the past to support the conclusion that it has a legitimate interest in employing more black teachers in the future”). See also Adarand, 515 U. S., at 261–262 (1995) (STEVENS, J., dissenting) (“This program, then, if in part a remedy for past discrimination, is most importantly a forward-looking response to practical problems faced by minority subcontractors”).

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Boston v. Board of Education, 352 Mass. 693, 227 N. E. 2d 729.5 Rejecting arguments comparable to those that the plurality accepts today,6 that court noted: “It would be the height of irony if the racial imbalance act, enacted as it was with the laudable purpose of achieving equal educational opportunities, should, by prescribing school pupil allocations based on race, founder on unsuspected shoals in the Fourteenth Amendment.” Id., at 698, 227 N. E. 2d, at 733 (footnote omitted).
Invoking our mandatory appellate jurisdiction,7 the

——————
5 THE CHIEF JUSTICE states that the Massachusetts racial imbalance Act did not require express classifications. See ante, at 31-32, n. 16. This is incorrect. The Massachusetts Supreme Judicial Court expressly stated:
“The racial imbalance act requires the school committee of every municipality annually to submit statistics showing the percentage of nonwhite pupils in all public schools and in each school. Whenever the board finds that racial imbalance exists in a public school, it shall give written notice to the appropriate school committee, which shall prepare a plan to eliminate imbalance and file a copy with the board. ‘The term “racial imbalance” refers to a ratio between nonwhite and other students in public schools which is sharply out of balance with the racial composition of the society in which nonwhite children study, serve and work. For the purpose of this section, racial imbalance shall be deemed to exist when the per cent of nonwhite students in any public school is in excess of fifty per cent of the total number of students in such school.’ ” 352 Mass., at 695, 227 N. E. 2d, at 731.
6 Compare ante, at 39 (“It was not the inequality of the facilities but the fact of legally separating children on the basis of race on which the Court relied to find a constitutional violation in 1954”), with Juris. Statement in School Comm. of Boston v. Board of Education, O. T. 1967, No. 67–759, p. 11 (“It is implicit in Brown v. Board of Education of Topeka, 347 U. S. 483, that color or race is a constitutionally impermissible standard for the assignment of school children to public schools. We construe Brown as endorsing Mr. Justice Harlan’s classical statement in Plessy v. Ferguson, 163 U. S. 537, 539: ‘Our constitution is color-blind, and neither knows nor tolerates classes among citizens’ ”).
7 In 1968 our mandatory jurisdiction was defined by the provision of the 1948 Judicial Code then codified at 28 U. S. C. §1257, see 62 Stat. 929; that provision was repealed in 1988, see 102 Stat. 662.

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STEVENS, J., dissenting
Boston plaintiffs prosecuted an appeal in this Court. Our ruling on the merits simply stated that the appeal was “dismissed for want of a substantial federal question.” School Comm. of Boston v. Board of Education, 389 U. S. 572 (1968) (per curiam). That decision not only expressed our appraisal of the merits of the appeal, but it constitutes a precedent that the Court overrules today. The subsequent statements by the unanimous Court in Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1, 16 (1971), by then-Justice Rehnquist in chambers in Bustop, Inc. v. Los Angeles Bd. of Ed., 439 U. S. 1380, 1383 (1978), and by the host of state court decisions cited by JUSTICE BREYER, see post, 25–27,8 were fully consistent with that disposition. Unlike today’s decision, they were also entirely loyal to Brown.
The Court has changed significantly since it decided School Comm. of Boston in 1968. It was then more faithful to Brown and more respectful of our precedent than it

——————
8 For example, prior to our decision in School Comm. of Boston, the Illinois Supreme Court had issued an unpublished opinion holding unconstitutional a similar statute aimed at eliminating racial imbalance in public schools. See Juris. Statement in School Comm. of Boston v. Board of Education, O. T. 1967, No. 67–759, at 9 (“Unlike the Massachusetts Court, the Illinois Supreme Court has recently held its law to eliminate racial imbalance unconstitutional on the ground that it violated the Equal Protection Clause of the Fourteenth Amendment”); ibid., n. 1. However, shortly after we dismissed the Massachusetts suit for want of a substantial federal question, the Illinois Supreme Court reversed course and upheld its statute in the published decision that JUSTICE BREYER extensively quotes in his dissent. See Tometz v. Board of Ed., Waukegan School Dist. No. 6, 39 Ill. 2d 593, 237 N. E. 2d 498 (1968). In so doing, the Illinois Supreme Court acted in explicit reliance on our decision in School Comm. of Boston. See 39 Ill. 2d, at 599– 600, 237 N. E. 2d, at 502 (“Too, the United States Supreme Court on January 15, 1968, dismissed an appeal in School Committee of Boston v. Board of Education, (Mass. 1967) 227 N. E. 2d 729, which challenged the statute providing for elimination of racial imbalance in public schools ‘for want of a substantial federal question.’ 389 U. S. 572”).

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is today. It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.

Cite as: 551 U. S. ____ (2007)

1

BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 05–908 and 05–915
_________________

PARENTS INVOLVED IN COMMUNITY SCHOOLS, PETITIONER

05–908

v.

SEATTLE SCHOOL DISTRICT NO. 1 ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
 APPEALS FOR THE NINTH CIRCUIT


CRYSTAL D. MEREDITH, CUSTODIAL PARENT AND NEXT FRIEND OF JOSHUA RYAN MCDONALD, PETITIONER

05–915

v.

JEFFERSON COUNTY BOARD OF EDUCATION ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
 APPEALS FOR THE SIXTH CIRCUIT

[June 28, 2007] 


JUSTICE BREYER, with whom JUSTICE STEVENS, JUSTICE SOUTER, and JUSTICE GINSBURG join, dissenting.
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 50 years by primary and secondary schools throughout the Nation. All of those plans represent local efforts to bring about the kind of racially integrated education that Brown v. Board of Education, 347 U. S. 483 (1954), long ago promised—efforts 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 “com-

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pelling.” 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. In 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 with the growing resegregation of public schools, it threatens to substitute for present calm a disruptive round of racerelated litigation, and it undermines Brown’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.

I Facts
The historical and factual context in which these cases arise is critical. In Brown, 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.” 347 U. S., at 493. And it thereby set the Nation on a path toward public school integration.
In dozens of subsequent cases, this Court told school districts previously segregated by law what they must do at a minimum to comply with Brown’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 Bd. of Ed. v. Penick, 443 U. S. 449,

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3

BREYER, J., dissenting
455, n. 3 (1979); Davis v. Board of School Comm’rs of Mobile Cty., 402 U. S. 33, 37–38 (1971); Green v. School Bd. of New Kent Cty., 391 U. S. 430, 441–442 (1968).
Beyond 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 with 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 within the broad discretionary powers of school authorities.” Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1, 16 (1971) (emphasis added).
As a result, different districts—some acting under court decree, some acting in order to avoid threatened lawsuits, some seeking to comply with federal administrative orders, some acting purely voluntarily, some acting after federal courts had dissolved earlier orders—adopted, modified, and experimented with hosts of different kinds of plans, including race-conscious plans, all with a similar objective: greater racial integration of public schools. See F. Welch & A. Light, New Evidence on School Desegregation v (1987) (hereinafter Welch) (prepared for the Commission on Civil Rights) (reviewing a sample of 125 school districts, constituting 20% of national public school enrollment, that had experimented with nearly 300 different plans over 18 years). The techniques that different districts have employed range “from voluntary transfer programs to mandatory reassignment.” Id., at 21. And the

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design of particular plans has been “dictated by both the law and the specific needs of the district.” Ibid.
Overall these efforts brought about considerable racial integration. More recently, however, progress has stalled. Between 1968 and 1980, 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 81% to 57% in the South) but then reversed direction by the year 2000, rising from 63% to 72% in the Nation (from 57% to 69% in the South). Similarly, between 1968 and 1980, 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 South), but that too reversed direction, rising by the year 2000 from 33% to 37% in the Nation (from 23% to 31% in the South). As of 2002, almost 2.4 million students, or over 5% of all public school enrollment, attended schools with a white population of less than 1%. 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 99–100% minority. See Appendix A, infra. In 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 with race-conscious elements, all for the sake of eradicating earlier school segregation, bringing about integration, or preventing retrogression. Seattle and Louisville are two such districts, and the histories of their present plans set forth typical school integration stories.
I 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

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5

BREYER, J., dissenting
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 out categorically all local efforts to use means that are “conscious” of the race of individuals.
In both Seattle and Louisville, the local school districts began with schools that were highly segregated in fact. In both cities plaintiffs filed lawsuits claiming unconstitutional segregation. In Louisville, a federal district court found that school segregation reflected pre-Brown state laws separating the races. In 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. In Louisville, a federal court entered a remedial decree. In Seattle, the parties settled after the school district pledged to undertake a desegregation plan. In both cities, the school boards adopted plans designed to achieve integration by bringing about more racially diverse schools. In 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 raceconscious criteria.
The histories that follow set forth these basic facts. They are based upon numerous sources, which for ease of exposition I have cataloged, along with their correspond-

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BREYER, J., dissenting

ing citations, at Appendix B, infra.

A Seattle
1. Segregation, 1945 to 1956. During and just after World War II, significant numbers of black Americans began to make Seattle their home. Few black residents lived outside the central section of the city. Most worked at unskilled jobs. Although black students made up about 3% of the total Seattle population in the mid-1950’s, 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 50% minority; schools outside the central and southeastern sections of Seattle were virtually all white.
2. Preliminary Challenges, 1956 to 1969. In 1956, a memo for the Seattle School Board reported that school segregation reflected not only segregated housing patterns but also school board policies that permitted white students to transfer out of black schools while restricting the transfer of black students into white schools. In 1958, black parents whose children attended Harrison Elementary School (with a black student population of over 75%) wrote the Seattle board, complaining that the “ ‘boundaries for the Harrison Elementary School were not set in accordance with the long-established standards of the School District . . . but were arbitrarily set with an end to excluding colored children from McGilvra School, which is adjacent to the Harrison school district.’ ”
In 1963, 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: If a place exists in a school, then, irrespective of other transfer criteria, a white student may trans-

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7

BREYER, J., dissenting
fer to a predominantly black school, and a black student may transfer to a predominantly white school.
At that time one high school, Garfield, was about twothirds minority; eight high schools were virtually all white. In 1963, the transfer program’s first year, 239 black students and 8 white students transferred. In 1969, about 2,200 (of 10,383 total) of the district’s black students and about 400 of the district’s white students took advantage of the plan. For the next decade, annual program transfers remained at approximately this level.
3. The NAACP’s First Legal Challenge and Seattle’s Response, 1969 to 1977. In 1969 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 the 1,461 black students enrolled in the 12 senior high schools in Seattle, 1,151 (or 78.8%) attended 3 senior high schools, and 900 (61.6%) attended a single school, Garfield.
The complaint charged that the school board had brought about this segregated system in 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

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three school buildings in the predominantly white north end. It then created a “mixed” student body by assigning to those schools students who would otherwise attend predominantly white, or predominantly black, schools elsewhere. It 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. But eventually a state court found that the mandatory busing was lawful.
In 1976–1977, the plan involved the busing of about 500 middle school students (300 black students and 200 white students). Another 1,200 black students and 400 white students participated in the previously adopted voluntary transfer program. Thus about 2,000 students out of a total district population of about 60,000 students were involved in one or the other transfer program. At that time, about 20% or 12,000 of the district’s students were black. And the board continued to describe 26 of its 112 schools as “segregated.”
4. The NAACP’s Second Legal Challenge, 1977. In 1977, the NAACP filed another legal complaint, this time with the federal Department of Health, Education, and Welfare’s Office for Civil Rights (OCR). The complaint alleged that the Seattle School Board had created or perpetuated unlawful racial segregation through, e.g., certain school-transfer criteria, a construction program that needlessly built new schools in white areas, district linedrawing 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.

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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.”
5. The Seattle Plan: Mandatory Busing, 1978 to 1988. The board began to implement the Seattle Plan in 1978. 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. It applied that label to 26 schools, including 4 high schools—Cleveland (72.8% minority), Franklin (76.6% minority), Garfield (78.4% minority), and Rainier Beach (58.9% minority). The plan paired (or “triaded”) “imbalanced” black schools with “imbalanced” white schools. It 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 about 50% black, while a previous “white” school would remain about two-thirds white. It was consequently necessary to decide with 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, with about half of all students attending a school other than the one closest to their home.
The Seattle Plan achieved the school integration that it

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sought. Just prior to the plan’s implementation, for example, 4 of Seattle’s 11 high schools were “imbalanced,” i.e., almost exclusively “black” or almost exclusively “white.” By 1979, only two were out of “balance.” By 1980 only Cleveland remained out 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 within the State. See generally Washington v. Seattle School Dist. No. 1, 458 U. S. 457, 461–466 (1982). Thus, Washington state voters enacted an initiative that amended state law to require students to be assigned to the schools closest to their homes. Id., at 462. The Seattle School Board challenged the constitutionality of the initiative. Id., at 464. This Court then held that the initiative—which would have prevented the Seattle Plan from taking effect—violated the Fourteenth Amendment. Id., at 470.
6. Student Choice, 1988 to 1998. By 1988, many white families had left the school district, and many Asian families had moved in. The public school population had fallen from about 100,000 to less than 50,000. The racial makeup of the school population amounted to 43% white, 24% black, and 23% Asian or Pacific Islander, with 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. In 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

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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. In making an assignment to a particular high school, the district would give first preference to a student with a sibling already at the school. It 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). It gave third preference to students residing in the neighborhood. It gave fourth preference to students who received child care in the neighborhood. In a typical year, say, 1995, about 20,000 potential high school students participated. About 68% received their first choice. Another 16% received an “acceptable” choice. A further 16% were assigned to a school they had not listed.
7. The Current Plan, 1999 to the Present. In 1996, the school board adopted the present plan, which began in 1999. In 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 outside of a 30% range centered on the minority/majority population ratio within 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 without regard to race. Thus, at worst, a student would have to spend one 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 (1999–2000 and 2000–2001). In the 2000–2001 school year, for example, with the racial tiebreaker, the entering ninth grade class

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at Franklin High School had a 60% minority population; without 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.) In the year 2005–2006, 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 about 300 students per year. Between 80% and 90% of all students received their first choice assignment; between 89% and 97% received their first or second choice assignment.
Petitioner Parents Involved in Community Schools objected to Seattle’s most recent plan under the State and Federal Constitutions. In 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.

B Louisville
1. Before the Lawsuit, 1954 to 1972. In 1956, two years after Brown made clear that Kentucky could no longer require racial segregation by law, the Louisville Board 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’s 46,000 students applied for transfer. By 1972, however, the Louisville School District remained highly segregated. Approximately half the district’s public school enrollment was black; about 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

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elementary schools were between 80% and 100% black. Twenty-one elementary schools were between roughly 90% and 100% white.
2. Court-Imposed Guidelines and Busing, 1972 to 1991. In 1972, civil rights groups and parents, claiming unconstitutional segregation, sued the Louisville Board of Education in federal court. The original litigation eventually became a lawsuit against the Jefferson County School System, which in April 1975 absorbed Louisville’s schools and combined them with those of the surrounding suburbs. (For ease of exposition, I 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 Appeals for the Sixth Circuit, the District Court in July 1975 entered an order requiring desegregation.
The order’s requirements reflected a (newly enlarged) school district student population of about 135,000, approximately 20% of whom were black. The order required the school board to create and to maintain schools with student populations that ranged, for elementary schools, between 12% and 40% black, and for secondary schools (with one exception), between 12.5% and 35% 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 12 schools, and busing groups of students, selected by race and the first letter of their last names, to schools outside 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 1976, gives

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a sense of how the district’s race-based busing plan operated in practice:

Louisville Courier Journal, June 18, 1976 (reproduced in J. Wilkinson, From Brown to Bakke: The Supreme Court and School Integration 1954–1978, p. 176 (1979)).
The District Court monitored implementation of the plan. In 1978, it found that the plan had brought all of Louisville’s schools within its “ ‘guidelines’ for racial composition” for “at least a substantial portion of the [previous] three years.” It 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.”
By 1984, after several schools had fallen out of compliance with the order’s racial percentages due to shifting demographics in the community, the school board revised its desegregation plan. In doing so, the board created a new racial “guideline,” namely a “floating range of 10% above and 10% below the countywide average for the different grade levels.” The board simultaneously redrew district boundaries so that middle school students could

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attend the same school for three years and high school students for four years. It 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 (with busing) of about 8,500 black students and about 8,000 white students.
3. Student Choice and Project Renaissance, 1991 to 1996. By 1991, the board had concluded 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. It consequently conducted a nearly year-long review of its plan. In doing so, it consulted widely with 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. It provided that each elementary school would have a black student population of between 15% and 50%; each middle and high school would have a black population and a white population that fell within a range, the boundaries of which were set at 15% above and 15% 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 guidelines; the district could reassign students if particular schools failed to meet the guidelines and was required to do so if a school repeatedly missed these targets.
In 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”). It initially assigned each stu-

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dent to his or her neighborhood school, but it permitted each student freely to transfer between elementary schools within 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 10th grader could apply to any high school in the system, and the high school would accept applicants according to set criteria—one of which consisted of the need to attain or remain in compliance with 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, 1996 to 2003. In 1995 and 1996, the Louisville School Board, with the help of a special “Planning Team,” community meetings, and other official and unofficial study groups, monitored the effects of Project Renaissance and considered proposals for improvement. Consequently, in 1996, the board modified Project Renaissance, thereby creating the present plan.
At the time, the district’s public school population was approximately 30% black. The plan consequently redrew the racial “guidelines,” setting the boundaries at 15% to 50% black for all schools. It 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 outside the guideline range, i.e., if it would create a school where fewer than 15% or more than

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50% of the students were black. The plan also established “Parent Assistance Centers”
to help parents and students navigate the school selection and assignment process. It 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.
In 1999, 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.” In 2000, after reviewing the present plan, the District Court dissolved the 1975 order. It wrote that there was “overwhelming evidence of the Board’s good faith compliance with the desegregation Decree and its underlying purposes.” It added that the Louisville School Board had “treated the ideal of an integrated system as much more than a legal obligation—they 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. It 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.
5. The Current Lawsuit, 2003 to the Present. Subsequent to the District Court’s dissolution of the desegregation order (in 2000) the board simply continued to implement its 1996 plan as modified to reflect the court’s

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magnet school determination. In 2003, the petitioner now before us, Crystal Meredith, brought this lawsuit challenging the plan’s unmodified portions, i.e., those portions that dealt with ordinary, not magnet, schools. Both 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 I have set forth describe the extensive and ongoing efforts of two school districts to bring about greater racial integration of their public schools. In both cases the efforts were in part remedial. Louisville began its integration efforts in earnest when a federal court in 1975 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 with the federal OCR.
The plans in both Louisville and Seattle grow out of these earlier remedial efforts. Both 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 with earlier plans, having revised their policies periodically in light of that experience. Both districts rethought their methods over time and explored a wide range of other means, including non-race-conscious policies. Both districts also considered elaborate studies and consulted widely within their communities.
Both districts sought greater racial integration for educational and democratic, as well as for remedial, reasons. Both sought to achieve these objectives while preserving their commitment to other educational goals, e.g.,

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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. In particular, they use race-conscious criteria only to mark the outer 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. JUSTICE 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). But our precedent has recognized that de jure discrimination can be present even in the absence of racially explicit laws. See Yick Wo v. Hopkins, 118 U. S. 356, 373– 374 (1886).
No one here disputes that Louisville’s segregation was de jure. But what about 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? Is Seattle free on remand to say that its schools were de jure segregated, just as in 1956 a memo for the School Board admitted? The plurality does not seem confident as to the answer. Compare ante, at 12 (opinion of the Court) (“[T]he Seattle public schools have never shown that they were ever segregated by law” (emphasis added)), with ante at 29–30 (plurality opinion) (assuming “the Seattle school district was never segre-

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gated by law,” but seeming to concede that a school district with 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 South that the Government or private plaintiffs challenged as segregated by law voluntarily desegregated their schools without a court order—just as Seattle did. See, e.g., Coleman, Desegregation of the Public Schools in Kentucky—The Second Year After the Supreme Court’s Decision, 25 J. Negro Educ. 254, 256, 261 (1956) (40 of Kentucky’s 180 school districts began desegregation without court orders); Branton, Little Rock Revisited: Desegregation to Resegregation, 52 J. Negro Educ. 250, 251 (1983) (similar in Arkansas); Bullock & Rodgers, Coercion to Compliance: Southern School Districts and School Desegregation Guidelines, 38 J. Politics 987, 991 (1976) (similar in Georgia); McDaniel v. Barresi, 402 U. S. 39, 40, n. 1 (1971) (Clarke County, Georgia). See also Letter from Robert F. Kennedy, Attorney General, to John F. Kennedy, President (Jan. 24, 1963) (hereinafter Kennedy Report), available at http://www.gilderlehrman.org/search/collection_pdfs/05/63/ 0/05630.pdf (all Internet 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 with 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? But see ante, at 12–13, 17, n. 12.

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Are courts really to treat as merely de facto segregated those school districts that avoided a federal order by voluntarily complying with Brown’s requirements? See id., at 12, 29–30. This Court has previously done just the opposite, permitting a race-conscious remedy without any kind of court decree. See McDaniel, supra, at 41. Because the Constitution emphatically does not forbid the use of race-conscious measures by districts in the South that voluntarily desegregated their schools, on what basis does the plurality claim that the law forbids Seattle to do the same? But 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 action—where 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 with 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.” Comfort v. Lynn School Comm., 418 F. 3d 1, 28 (CA1 2005) (Boudin, C. J., concurring) (citing United States v. Lopez, 514 U. S. 549, 581 (1995) (KENNEDY, J., concurring)), cert. denied, 546 U. S. 1061 (2005).

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With this factual background in mind, I 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?

II 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. Because of its importance, I shall repeat what this Court said about the matter in Swann. Chief Justice Burger, on behalf of a unanimous Court in a case of exceptional importance, wrote:
“School authorities are traditionally charged with 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 within the broad discretionary powers of school authorities.” 402 U. S., at 16.

The statement was not a technical holding in the case. But the Court set forth in Swann a basic principle of constitutional law—a principle of law that has found “wide acceptance in the legal culture.” Dickerson v. United States, 530 U. S. 428, 443 (2000) (internal quotation marks omitted); Mitchell v. United States, 526 U. S. 314, 330 (1999); id., at 331, 332 (SCALIA, J., dissenting) (citing “ ‘wide acceptance in the legal culture’ ” as “adequate reason not to overrule” prior cases).
Thus, in North Carolina Bd. of Ed. v. Swann, 402 U. S. 43, 45 (1971), this Court, citing Swann, restated the point. “[S]chool authorities,” the Court said, “have wide discre-

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tion 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.” ThenJustice Rehnquist echoed this view in Bustop, Inc. v. Los Angeles Bd. of Ed., 439 U. S. 1380, 1383 (1978) (opinion in chambers), making clear that he too believed that Swann’s statement reflected settled law: “While I 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, I 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. Indeed, in McDaniel, a case decided the same day as Swann, a group of parents challenged a race-conscious student assignment plan that the Clarke County School Board had voluntarily adopted as a remedy without a court order (though under federal agency pressure—pressure 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 Barresi v. Browne, 226 Ga. 456, 456–459, 175 S. E. 2d 649, 650–651 (1970). This Court upheld the plan, see McDaniel, 402 U. S., at 41, rejecting the parents’ argument that “a person may not be included or excluded solely because he is a Negro or because he is white.” Brief for Respondents in McDaniel, O. T. 1970, No. 420, p. 25.
Federal authorities had claimed—as the NAACP and the OCR did in Seattle—that 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, with supra, at 6–9. The plurality could validly claim that no court ever found that

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Seattle schools were segregated in law. But that is also true of the Clarke County schools in McDaniel. Unless we believe that the Constitution enforces one legal standard for the South and another for the North, this Court should grant Seattle the permission it granted Clarke County, Georgia. See McDaniel, 402 U. S., at 41 (“[S]teps will almost invariably require that students be assigned ‘differently because of their race.’ . . . Any other approach would freeze the status quo that is the very target of all desegregation processes.”).
This Court has also held that school districts may be required by federal statute to undertake race-conscious desegregation efforts even when there is no likelihood that de jure segregation can be shown. In Board of Ed. of City School Dist. of New York v. Harris, 444 U. S. 130, 148–149 (1979), 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 id., at 152 (opinion of Stewart, J.). See also, e.g., Crawford v. Board of Ed. of Los Angeles, 458 U. S. 527, 535–536 (1982) (“[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” (emphasis added)); School Comm. of Boston v. Board of Education, 389 U. S. 572 (1968) (per curiam) (dismissing for want of a federal question a challenge to a voluntary statewide integration plan using express racial criteria).

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Lower state and federal courts had considered the matter settled and uncontroversial even before this Court decided Swann. Indeed, in 1968, the Illinois 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.” Tometz v. Board of Ed., Waukegan School Dist. No. 6, 39 Ill. 2d 593, 597–598, 237 N. E. 2d 498, 501 (1968) (citations omitted) (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., Offerman v. Nitkowski, 378 F. 2d 22, 24 (CA2 1967); Deal v. Cincinnati Bd. of Ed., 369 F. 2d 55, 61

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(CA6 1966), cert. denied, 389 U. S. 847 (1967); Springfield School Comm. v. Barksdale, 348 F. 2d 261, 266 (CA1 1965); Pennsylvania Human Relations Comm’n v. Chester School Dist., 427 Pa. 157, 164, 233 A. 2d 290, 294 (1967); Booker v. Board of Ed. of Plainfield, Union Cty., 45 N. J. 161, 170, 212 A. 2d 1, 5 (1965); Jackson v. Pasadena City School Dist., 59 Cal. 2d 876, 881–882, 382 P. 2d 878, 881– 882 (1963) (in bank).
I quote the Illinois Supreme Court at length to illustrate the prevailing legal assumption at the time Swann was decided. In this respect, Swann was not a sharp or unexpected departure from prior rulings; it reflected a consensus that had already emerged among state and lower federal courts.
If there were doubts before Swann was decided, they did not survive this Court’s decision. Numerous state and federal courts explicitly relied upon Swann’s guidance for decades to follow. For instance, a Texas appeals court in 1986 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 Better Ed. v. Goose Creek Consol. Independent School Dist., 719 S. W. 2d 350, 352353 (Ct. App. Tex. 1986) (citing Swann and North Carolina Bd. of Ed.), appeal dism’d for want of a substantial federal question, 484 U. S. 804 (1987).

Similarly, in Zaslawsky v. Bd. of Ed. of Los Angeles City Unified School Dist., 610 F. 2d 661, 662–664 (1979), the Ninth Circuit rejected a federal constitutional challenge to

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a school district’s use of mandatory faculty transfers to ensure that each school’s faculty makeup would fall within 10% of the districtwide racial composition. Like the Texas court, the Ninth Circuit relied upon Swann and North Carolina Bd. of Ed. to reject the argument that “a raceconscious plan is permissible only when there has been a judicial finding of de jure segregation.” 610 F. 2d, at 663– 664. See also, e.g., Darville v. Dade County School Bd., 497 F. 2d 1002, 1004–1006 (CA5 1974); State ex rel. Citizens Against Mandatory Bussing v. Brooks, 80 Wash. 2d 121, 128–129, 492 P. 2d 536, 541–542 (1972) (en banc), overruled on other grounds, Cole v. Webster, 103 Wash. 2d 280, 692 P. 2d 799 (1984) (en banc); School Comm. of Springfield v. Board of Ed., 362 Mass. 417, 428–429 287 N. E. 2d 438, 447–448 (1972). These decisions illustrate well how lower courts understood and followed Swann’s enunciation of the relevant legal principle.
Courts are not alone in accepting as constitutionally valid the legal principle that Swann 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. §6311(b)(2)(C)(v) (No Child Left Behind Act); §1067 et seq. (authorizing aid to minority institutions). In fact, without being exhaustive, I have counted 51 federal statutes that use racial classifications. I have counted well over 100 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. 10925, 26 Fed. Reg. 1977 (1961) (President Kennedy); Exec. Order No. 11246, 30 Fed. Reg. 12319 (1965) (President

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Johnson); Sugrue, Breaking Through: The Troubled Origins of Affirmative Action in the Workplace, in Colorlines: Affirmative Action, Immigration, and Civil Rights Options for America 31 (Skretny ed. 2001) (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, 1999, p. 48 (reporting on President Ford’s support for affirmative action); Schuck, Affirmative Action: Past, Present, and Future, 20 Yale L. & Pol’y Rev. 1, 50 (2002) (describing President Carter’s support for affirmation action). And during the same time, hundreds of local school districts have adopted student assignment plans that use race-conscious criteria. See Welch 83–91.
That Swann’s legal statement should find such broad acceptance is not surprising. For Swann 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, 16 Wall. 36, 71 (1872) (“[N]o one can fail to be impressed with the one pervading purpose found in [all the Reconstruction amendments] . . . we mean the freedom of the slave race”); Strauder v. West Virginia, 100 U. S. 303, 306 (1879) (“[The Fourteenth Amendment] is one of a series of constitutional provisions having a common purpose; namely, securing to a race recently emancipated . . . all the civil rights that the superior race enjoy”).
There is reason to believe that those who drafted an Amendment with 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-

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conscious criteria to further that purpose, namely to bring the races together. See generally R. Sears, A Utopian Experiment in Kentucky: Integration and Social Equality at Berea, 1866–1904 (1996) (describing federal funding, through the Freedman’s Bureau, of race-conscious school integration programs). See also R. Fischer, The Segregation Struggle in Louisiana 1862–77, p. 51 (1974) (describing the use of race-conscious remedies); Harlan, Desegregation in New Orleans Public Schools During Reconstruction, 67 Am. Hist. Rev. 663, 664 (1962) (same); W. Vaughn, Schools for All: The Blacks and Public Education in the South, 1865–1877, pp. 111–116 (1974) (same). Although the Constitution almost always forbids the former, it is significantly more lenient in respect to the latter. See Gratz v. Bollinger, 539 U. S. 244, 301 (2003) (GINSBURG, J., dissenting); Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 243 (1995) (STEVENS, J., dissenting).
Sometimes Members of this Court have disagreed about the degree of leniency that the Clause affords to programs designed to include. See Wygant v. Jackson Board of Education, 476 U. S. 267, 274 (1986); Fullilove v. Klutznick, 448 U. S. 448, 507 (1980). But I can find no case in which this Court has followed JUSTICE THOMAS’ “colorblind” approach. And I 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 Swann and other similar cases on the ground that those cases involved remedial plans in response to judicial findings of de jure segregation. As McDaniel and Harris show, that is historically untrue. See supra, at 22–24. Many school districts in the South adopted segregation remedies (to which Swann clearly applies) without any such federal order, see supra, at 19– 20. See also Kennedy Report. Seattle’s circumstances are

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not meaningfully different from those in, say, McDaniel, 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 distinction—between court-ordered and voluntary desegregation—seeks a line that sensibly cannot be drawn.
Second, the plurality downplays the importance of Swann and related cases by frequently describing their relevant statements as “dicta.” These criticisms, however, miss the main point. Swann did not hide its understanding of the law in a corner of an obscure opinion or in a footnote, unread but by experts. It set forth its view prominently in an important opinion joined by all nine Justices, knowing that it would be read and followed throughout the Nation. The basic problem with 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.” (Consider the legal “status” of Justice Powell’s separate opinion in Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978).) The constitutional principle enunciated in Swann, 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 with 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

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has continuously embodied. Third, a more important response is the plurality’s
claim that later cases—in particular Johnson, Adarand, and Grutter—supplanted Swann. See ante, at 11–12, 31– 32, n. 16, 34–35 (citing Adarand, supra, at 227; Johnson v. California, 543 U. S. 499, 505 (2005); Grutter v. Bollinger, 539 U. S. 306, 326 (2003)). The plurality says that cases such as Swann and the others I 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 31, n. 16 (quoting Adarand, 515 U. S., at 227). This Court in Adarand added that “such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.” Ibid. And the Court repeated this same statement in Grutter. See 539 U. S., at 326.
Several of these cases were significantly more restrictive than Swann in respect to the degree of leniency the Fourteenth Amendment grants to programs designed to include people of all races. See, e.g., Adarand, supra; Gratz, supra; Grutter, supra. But that legal circumstance cannot make a critical difference here for two separate reasons.
First, no case—not Adarand, Gratz, Grutter, or any other—has ever held that the test of “strict scrutiny” means that all racial classifications—no matter whether they seek to include or exclude—must in practice be treated the same. The Court did not say in Adarand or in Johnson or in Grutter that it was overturning Swann or its central constitutional principle.
Indeed, 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.” Adarand, supra, at 228 (internal quotation marks omitted). The Court made clear that “[s]trict scrutiny does not trea[t] dissimilar racebased decisions as though they were equally objection-

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able.” Ibid. It added that the fact that a law “treats [a person] unequally because of his or her race . . . says nothing about the ultimate validity of any particular law.” Id., at 229–230 (internal quotation marks omitted). 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.’ ” Id., at 237 (quoting Fullilove v. Klutznick, 448 U. S., at 519 (Marshall, J., concurring in judgment)).
The Court in Grutter 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 Gomillion v. Lightfoot, 364 U. S. 339, 343–344 (1960) (admonishing that, ‘in dealing with 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 out of 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 particular context.” 539 U. S., at 326–327.

The Court’s holding in Grutter demonstrates that the

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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. In 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 Grutter specified, “[c]ontext matters when reviewing race-based governmental action under the Equal Protection Clause.” 539 U. S., at 327 (citing Gomillion v. Lightfoot, 364 U. S. 339, 343–344 (1960)). 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.

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Here, the context is one in which school districts seek to advance or to maintain racial integration in primary and secondary schools. It is a context, as Swann 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 outer 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 merit and which are in short supply. It 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 with other cases where one or more of these negative features are present. See, e.g., Strauder v. West Virginia, 100 U. S. 303 (1880); Yick Wo v. Hopkins, 118 U. S. 356 (1886); Brown, 347 U. S. 483; Loving v. Virginia, 388 U. S. 1 (1967); Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978); Batson v. Kentucky, 476 U. S. 79 (1986); Richmond v. J. A. Croson Co., 488 U. S. 469 (1989); Shaw v. Reno, 509 U. S. 630 (1993); Adarand Constructors, Inc. v. Peña, 515 U. S. 200 (1995); Grutter, supra; Gratz v. Bollinger, 539 U. S. 244 (2003); Johnson v. California, 543 U. S. 499 (2005).
If 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

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diminish the use of race compared to preceding integration efforts. Compare Wessmann v. Gittens, 160 F. 3d 790, 809–810 (CA1 1998) (Boudin, J., concurring), with Comfort, 418 F. 3d, at 28–29 (Boudin, C. J., concurring). 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. In 2000, for example, Roosevelt was the most popular first choice high school in Seattle; in 2001, Ballard was the most popular; in 2000, West Seattle was one of the least popular; by 2003, it was one of the more popular. See Research, Evaluation and Assessment, Student Information Services Office, District Summaries 1999–2005, available at http: //www.seattleschools.org/area/siso/disprof/2005/DP05 all.pdf. In 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 426 F. 3d 1162, 1193–1194 (2005) (Kozinski, J., concurring) (“That a student is denied the school of his choice may be disappointing, but it carries no racial stigma and says nothing at all about that individual’s aptitude or ability”). That judge is not alone. Cf. Gratz, supra, at 301 (GINSBURG, J., dissenting); Adarand, supra, at 243 (STEVENS, J., dissenting); Carter, When Victims Happen To Be Black, 97 Yale L. J. 420, 433–434 (1988).
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 deter-

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mine 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. In doing so, a reviewing judge must be fully aware of the potential dangers and pitfalls that JUSTICE THOMAS and JUSTICE KENNEDY mention. See ante, at 11–12 (THOMAS, J., concurring); ante, at 3, 17 (opinion of KENNEDY, J.).
But 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 17–18 (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.
In my view, this contextual approach to scrutiny is altogether fitting. I 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 I have just described. See Gratz, supra, at 301 (GINSBURG, J., joined by SOUTER, J., dissenting); Adarand, supra, at 242–249 (STEVENS, J., joined by GINSBURG, J., dissenting); 426 F. 3d, at 1193–1194 (Kozinski, J., concurring). Apparently JUSTICE 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 with candor and with confidence that a constitutional violation does not occur whenever a decisionmaker considers the impact a given approach might have on students of differ-

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ent races”). Nonetheless, in light of Grutter and other precedents,
see, e.g., Bakke, 438 U. S., at 290 (opinion of Powell, J.), I shall adopt the first alternative. I shall apply the version of strict scrutiny that those cases embody. I 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. If the plans survive this strict review, they would survive less exacting review a fortiori. Hence, I conclude that the plans before us pass both parts of the strict scrutiny test. Consequently I must conclude that the plans here are permitted under the Constitution.
III Applying the Legal Standard
A Compelling Interest
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.” I 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. By this term, I 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 right the consequences of prior conditions of segregation. This

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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. It 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. It 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 I, supra, at 4; Appendix A, infra. See also ante, at 17 (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 with highly segregated schools. Cf. Grutter, 539 U. S., at 345 (GINSBURG, 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 15, 35 (J. Powell, G. Kearney, & V. Kay eds. 2001) (hereinafter Powell); Hallinan, Diversity Effects on Student Outcomes: Social Science Evidence, 59 Ohio St. L. J. 733, 741–742 (1998) (hereinafter Hallinan).
Other studies reach different conclusions. See, e.g., D. Armor, Forced Justice (1995). See also ante, at 15–17 (THOMAS, J., concurring). But 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.

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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. Indeed 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 1975. See Powell 35. 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. Ibid.
One commentator, reviewing dozens of studies of the educational benefits of desegregated schooling, found that the studies have provided “remarkably consistent” results, showing that: (1) 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 outcomes. See Hallinan 741–742. 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 Impact on Elementary and Secondary School Students, in Handbook of Research on Multicultural Education 597, 606–607 (J. Banks & C. Banks eds. 1995). Cf. W. Bowen & D. Bok, The Shape of the River 118 (1998) (hereinafter Bowen & Bok).
Third, there is a democratic element: an interest in producing an educational environment that reflects the “pluralistic society” in which our children will live. Swann, 402 U. S., at 16. It is an interest in helping our children learn to work and play together with children of different racial backgrounds. It is an interest in teaching children to engage in the kind of cooperation among

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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 745; Quillian & Campbell, Beyond Black and White: The Present and Future of Multiracial Friendship Segregation, 68 Am. Sociological Rev. 540, 541 (2003) (hereinafter Quillian & Campbell); Dawkins & Braddock, The Continuing Significance of Desegregation: School Racial Composition and African American Inclusion in American Society, 63 J. Negro Ed. 394, 401–403 (1994) (hereinafter Dawkins & Braddock); Wells & Crain, Perpetuation Theory and the Long-Term Effects of School Desegregation, 64 Rev. Educational Research 531, 550 (1994) (hereinafter Wells & Crain).
There are again studies that offer contrary conclusions. See, e.g., Schofield, School Desegregation and Intergroup Relations, in 17 Review of Research in Education 356 (G. Grant ed. 1991). 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 745. See also Quillian & Campbell 541. Cf. Bowen & Bok 155. 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 & Braddock 401–403; Wells & Crain 550. Further research has shown that the desegregation of schools can help bring adult communities together by reducing

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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 & Braddock 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 raceconscious criteria.
Moreover, this Court from Swann to Grutter has treated these civic effects as an important virtue of racially diverse education. See, e.g., Swann, supra, at 16; Seattle School Dist. No. 1, 458 U. S., at 472–473. In Grutter, in the context of law school admissions, we found that these types of interests were, constitutionally speaking, “compelling.” See 539 U. S., at 330 (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 out 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)).
In light of this Court’s conclusions in Grutter, 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 with us to the end of our days. As Justice Marshall said, “unless our children begin to learn together, there is little hope that our people will ever learn to live together.” Milliken v. Bradley, 418 U. S. 717, 783 (1974) (dissenting opinion).
And it was Brown, after all, focusing upon primary and secondary schools, not Sweatt v. Painter, 339 U. S. 629 (1950), focusing on law schools, or McLaurin v. Oklahoma

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State Regents for Higher Ed., 339 U. S. 637 (1950), focusing on graduate schools, that affected so deeply not only Americans but the world. R. Kluger, Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality, p. x (1975) (arguing that perhaps no other Supreme Court case has “affected more directly the minds, hearts, and daily lives of so many Americans”); Patterson, Brown v. Board of Education xxvii (2001) (identifying Brown as “the most eagerly awaited and dramatic judicial decision of modern times”). See also Parents Involved VII, 426 F. 3d, at 1194 (Kozinski, J., concurring); Strauss, Discriminatory Intent and the Taming of Brown, 56 U. Chi. L. Rev. 935, 937 (1989) (calling Brown “the Supreme Court’s greatest antidiscrimination decision”); Brief for United States as Amicus Curiae in Brown, 347 U. S. 483; Dudziak, Brown as a Cold War Case, 91 J. Am. Hist. 32 (2004); A Great Decision, Hindustan Times (New Dehli, May 20, 1954), p. 5; USA Takes Positive Step, West African Pilot (Lagos, May 22, 1954), p. 2 (stating that Brown 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, I am not surprised that JUSTICE KENNEDY finds that, “a district may consider it a compelling interest to achieve a diverse student population,” including a racially diverse population. Ante, at 17–18.
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 supra, at 7, 14; 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 with people of all races

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and backgrounds, thereby furthering the kind of democratic government our Constitution foresees. If 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, at 12, 13. But 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? Supra, at 19–20. 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 Grutter, 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 28. But that distinction concerns what the Constitution requires school boards to do, not what it permits them to do. Compare, e.g., Green, 391 U. S., at 437–438 (“School boards . . . operating state-compelled dual systems” have an “affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch”), with, e.g., Milliken, 418 U. S., at 745 (the Constitution does not impose a duty to desegregate upon districts that have not been “shown to have committed any constitutional violation”).
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 constitution-

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ally required to undertake. See, e.g., Freeman v. Pitts, 503 U. S. 467, 495 (1992). 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 Swann, McDaniel, Crawford, North Carolina Bd. of Ed., Harris, and Bustop 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 with 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 out 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.” 503 U. S., at 495. See also ante, at 15 (opinion of KENNEDY, J.). I 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, JUSTICE THOMAS 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 15–17, 23 (concurring opinion). He is entitled of course to his own

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opinion as to which studies he finds convincing—although it bears mention that even the author of some of JUSTICE THOMAS’ preferred studies has found some evidence linking integrated learning environments to increased academic achievement. Cf. ante, at 15–17 (opinion of THOMAS, J.) (citing Armor & Rossell, Desegregation and Resegregation in the Public Schools, in Beyond the Color Line 239 (A. Thernstrom & S. Thernstrom eds. 2002); Brief for Armor et al. as Amici Curiae, with Rosen, Perhaps Not All Affirmative Action is Created Equal, N. Y. Times, June 11, 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’ ” (emphasis added)). If we are to insist upon unanimity in the social science literature before finding a compelling interest, we might never find one. I 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.
B Narrow Tailoring
I next ask whether the plans before us are “narrowly tailored” to achieve these “compelling” objectives. I shall not accept the school board’s assurances on faith, cf. Miller v. Johnson, 515 U. S. 900, 920 (1995), and I shall subject the “tailoring” of their plans to “rigorous judicial review.” Grutter, 539 U. S., at 388 (KENNEDY, J., dissenting). 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 outer bounds of broad ranges. Cf. id., at 390 (KENNEDY, J., dissenting) (expressing concern about “nar-

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row 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 id., at 335 (“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 Croson, 488 U. S., at 496)).
In fact, the defining feature of both plans is greater emphasis upon student choice. In 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 (without any consideration of race-conscious criteria). Choice, therefore, is the “predominant factor” in these plans. Race is not. See Grutter, supra, at 393 (KENNEDY, J., dissenting) (allowing consideration of race only if it does “not become a predominant factor”).
Indeed, the race-conscious ranges at issue in these cases often have no effect, either because the particular school is not oversubscribed in the year in question, or because the racial makeup of the school falls within the broad range, or because the student is a transfer applicant or has a sibling at the school. In 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 Bd. of Ed. v. Swann, 402 U. S. 43, 46 (1971) (no “absolute prohibition against [the] use” of mathematical ratios as a “starting point”); Swann, 402 U. S., at 24–25 (approving the use of a ratio reflecting “the racial composition of the whole school system” as a “useful starting point,” but not as an “inflexible requirement”). Cf. United States v. Montgomery County Bd. of Ed., 395 U. S. 225, 232 (1969) (ap-

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proving 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 throughout 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 Grutter, supra, at 341, than other raceconscious restrictions this Court has previously approved. See, e.g., Swann, supra, at 26–27; Montgomery Co. Bd. of Ed., supra, at 232. Indeed, the plans before us are more narrowly tailored than the race-conscious admission plans that this Court approved in Grutter. Here, race becomes a factor only in a fraction of students’ non-merit-based assignments—not in large numbers of students’ meritbased applications. Moreover, the effect of applying raceconscious criteria here affects potentially disadvantaged students less severely, not more severely, than the criteria at issue in Grutter. 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 283. And, in Seattle, the disadvantaged student loses at most one year at the high school of his choice. One will search Grutter 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 need for mandatory busing. And

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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 with numerous other plans, indeed, the 40year history that Part I 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 with greater student choice. Both 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. In neither city did these prior attempts prove sufficient to achieve the city’s integration goals. See Parts I–A and I–B, supra, at 6–18.
Moreover, giving some degree of weight to a local school board’s knowledge, expertise, and concerns in these particular matters is not inconsistent with rigorous judicial scrutiny. It simply recognizes that judges are not well suited to act as school administrators. Indeed, 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 Milliken, 418 U. S., at 741–42 (“No single tradition in public education is more deeply rooted than local control over the operation of schools; local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to quality of the educational process”). See also San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 49–50 (1973) (extolling local control for “the opportunity it offers for participation in

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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”); Epperson v. Arkansas, 393 U. S. 97, 104 (1968) (“Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. . . . By and large, public education in our Nation is committed to the control of state and local authorities”); Brown v. Board of Education, 349 U. S. 294, 299 (1955) (Brown II) (“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 with experience elsewhere. In 1987, the U. S. Commission on Civil Rights studied 125 large school districts seeking integration. It reported that most districts—92 of them, in fact—adopted desegregation policies that combined two or more highly race-conscious strategies, for example, rezoning or pairing. See Welch 83–91.
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 50 years of desegregation history in school districts across the Nation, I have discovered many examples of districts that sought integration through explicitly race-conscious methods, including mandatory busing. Yet, I 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 raceconscious criteria than your plans.” And, if the plurality

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cannot suggest such a model—and it cannot—then it seeks to impose a “narrow tailoring” requirement that in practice would never be met.
Indeed, if there is no such plan, or if such plans are purely imagined, it is understandable why, as the plurality notes, ante, at 27, 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, at 27–28, 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). I 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 Bd. of Ed. School Dist. No. 205, 961 F. 2d 1335, 1338 (CA7 1992) (Easterbrook, J.) (“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 18–20. The plurality refers to no case in support of its demand. Nor is it likely to find such a case. 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., Swann, 402 U. S., at 24– 25; North Carolina Bd. of Ed., 402 U. S., at 46; Montgomery County Bd. of Ed., 395 U. S., at 232. The reason is obvious: In Seattle, where the overall student population is 41% white, permitting 85% white enrollment at a single school would make it much more likely that other schools would have very few white students, whereas in Jefferson

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County, with a 60% white enrollment, one school with 85% 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 50% minority— which is Louisville’s starting point, and as close as feasible to Seattle’s starting point—is helpful in limiting the risk of “white flight.” See Orfield, Metropolitan School Desegregation: Impacts on Metropolitan Society, in Pursuit of a Dream Deferred: Linking Housing and Education Policy 121, 125. Federal law also assumes that a similar target percentage will help avoid detrimental “minority group isolation.” See No Child Left Behind Act of 2001, Title V, Part C, 115 Stat. 1806, 20 U. S. C. §7231 et seq. (2000 ed., Supp. IV); 34 CFR §§280.2, 280.4 (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 out 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 50 years gives the districts, or this Court, any reason to believe that another method is possible to accomplish these goals. Nevertheless, JUSTICE 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 with general recognition of the

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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.

But, 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). In fact, six of the Seattle high schools involved in this case were built by the 1920’s; the other four were open by the early 1960’s. See generally N. Thompson & C. Marr, Building for Learning: Seattle Public Schools Histories, 1862–2000 (2002). As to “drawing” neighborhood “attendance zones” on a racial basis, Louisville tried it, and it worked only when forced busing was also part of the plan. See supra, at 12–14. As to “allocating resources for special programs,” Seattle and Louisville have both experimented with 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. In addition, there is no evidence from the experience of these school districts that it will make any meaningful impact. See Brief for Respondents in No. 05–908, p. 42. 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.
JUSTICE KENNEDY sets forth two additional concerns related to “narrow tailoring.” In respect to Louisville, he says first that officials stated (1) 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. Both, he explains, cannot be true. He adds that this confusion illustrates that Louisville’s assignment

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plan (or its explanation of it to this Court) is insufficiently precise in respect to “who makes the decisions,” “oversight,” “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, at 4.
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 05–915, 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 deadline had passed, id., at 21, 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. I am not certain just how the remainder of JUSTICE KENNEDY’s concerns affect the lawfulness of the Louisville program, for they seem to be failures of explanation, not of administration. But Louisville should be able to answer the relevant questions on remand.
JUSTICE 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” with a 50% Asian-American and 50% white student body, and no African-American students, Hispanic students, or students of other ethnicity. Ante, at 6; ante, at 15–16 (opinion of the Court).
The 50/50 hypothetical has no support in the record here; it is conjured from the imagination. In 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 116–117. See also Hanawalt 31; Pub. L. 95–561, Tit. VI (1978) (prescrib-

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ing percentage enrollment requirements for “minority” students); Siqueland 55 (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 without 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 minorityassistance program? If so, its interpretation threatens to produce divisiveness among minority groups that is incompatible with 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, I recognize that the Court seeks to distinguish Grutter from these cases by claiming that Grutter arose in “ ‘the context of higher education.’ ” Ante, at 16. But that is not a meaningful legal distinction. I have explained why I 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 13-year-old high school pupil. See supra, at 46–48. And I have explained how the plans before us are more narrowly tailored than those in Grutter. See supra, at 45. I 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 13–15. The context here does not

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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—(1) 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 with prior plans, and (5) the lack of reasonably evident alternatives—together show that the districts’ plans are “narrowly tailored” to achieve their “compelling” goals. In sum, the districts’ race-conscious plans satisfy “strict scrutiny” and are therefore lawful.
IV 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 Board’s good faith compliance with the desegregation Decree and its underlying purposes,” indeed that the Board had “treated the ideal of an integrated system as much more than a legal obligation—they consider it a positive, desirable policy and an essential element of any well-rounded public school education.” Hampton II, 102 F. Supp. 2d, at 370. When the court made this determination in 2000, it did so in the context of the Louisville desegregation plan that the board had adopted in 1996. That plan, which took effect before 1996, 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 1996 when Louisville adopted it. To the contrary, there is every reason to believe that it repre-

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sented part of an effort to implement the 1978 desegregation order. But 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? Is 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 id., at 380 (“The very analysis for dissolving desegregation decrees supports continued maintenance of a desegregated system as a compelling state interest”). 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. 1, 458 U. S. 457, is directly on point. That case involves the original Seattle Plan, a more heavily race-conscious predecessor of the very plan now before us. In Seattle School Dist. No. 1, 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 throughout the State.” Id., at 462–463, 483. Because 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. Id., at 483–487.
In reaching this conclusion, the Court did not directly address the constitutional merits of the underlying Seattle plan. But it explicitly cited Swann’s statement that the Constitution permitted a local district to adopt such a plan. 458 U. S., at 472, n. 15. It also cited to Justice Powell’s opinion in Bakke, approving of the limited use of

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race-conscious criteria in a university-admissions “affirmative action” case. 458 U. S., at 472, n. 15. In addition, the Court stated that “[a]ttending an ethnically diverse school,” id., at 473, could help prepare “minority children for citizenship in our pluralistic society,” hopefully “teaching members of the racial majority to live in harmony and mutual respect with children of minority heritage.” Ibid. (internal quotation marks and citation omitted).
It is difficult to believe that the Court that held unconstitutional a referendum that would have interfered with the implementation of this plan thought that the integration plan it sought to preserve was itself an unconstitutional plan. And if Seattle School Dist. No. 1 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 raceconscious elements than its predecessors.
It is even more difficult to accept the plurality’s contrary view, namely that the underlying plan was unconstitutional. If 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 13th 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 50 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

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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 throughout the Nation. Will Louisville and all similar school districts have to return to systems like Louisville’s initial 1956 plan, which did not consider race at all? See supra, at 12. That initial 1956 plan proved ineffective. Sixteen years into the plan, 14 of 19 middle and high schools remained almost totally white or almost totally black. Ibid.
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 1987 Civil Rights Commission Study of 125 school districts in the Nation demonstrated the breadth and variety of desegregation plans:
“The [study] documents almost 300 desegregation plans that were implemented between 1961 and 1985. The degree of heterogeneity within these districts is immediately apparent. They are located in every region of the country and range in size from Las Cruces, New Mexico, with barely over 15,000 students attending 23 schools in 1968, to New York City, with more than one million students in 853 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). It contains 34 countywide districts with central cities (the 11 Florida districts fit this description, plus Clark County, Nevada and others) and

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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. Initial plans were implemented in Mobile, Alabama and Mecklenburg County, North Carolina, and in a number of other southern districts in the face of total racial segregation. At the other extreme, Santa Clara, California had a relatively even racial distribution prior to its 1979 desegregation plan. When the 1965 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 1980s, while Buffalo, New York had a virtual 50–50 split between white and minority students prior to its 1977 plan.
“It is not surprising to find a large number of different desegregation strategies in a sample with this much variation.” Welch 23 (footnotes omitted).
A majority of these desegregation techniques explicitly considered a student’s race. See id., at 24–28. 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 Buffalo, New York, permitted only “one-way” transfers, in which only black students attending predominantly black schools were permitted to transfer to designated receiver schools. Id., at 25. Fifty-three of the 125 studied districts used transfers as a component of their plans. Id., at 83–91.
At the state level, 46 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

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States require local boards to deny transfers that are not in compliance with the local school board’s desegregation plans. See Education Commission of the States, Open Enrollment: 50-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. §6–18–206(f)(1), as amended 2007 Ark. Gen. Acts 552 (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. §3313.98(B)(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.” §3313.98 (F)(1)(a).
A Connecticut statute states that its student choice program will seek to “preserve racial and ethnic balance.” Conn. Gen. Stat. §10–266aa(b)(2) (2007). Connecticut law requires each school district to submit racial group population figures to the State Board of Education. §10–226a. Another Connecticut regulation provides that “[a]ny school in which the Proportion for the School falls outside of a range from 25 percentage points less to 25 percentage points more than the Comparable Proportion for the School District, shall be determined to be racially imbalanced.” Conn. Agencies Regs. §10–226e–3(b) (1999). A “racial imbalance” determination requires the district to submit a plan to correct the racial imbalance, which plan may include “mandatory pupil reassignment.” §§10–226e– 5(a) and (c)(4).
Interpreting 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

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JUSTICE KENNEDY today recommends (e.g., reallocating resources, etc.). See Sheff v. O’Neill, 238 Conn. 1, 678 A. 2d 1267 (1996). 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 their fundamental state constitutional right to a substantially equal educational opportunity.” Id., at 42, 678 A. 2d, at 1289.
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 supra, at 27. In 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 throughout 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 I have pointed out, supra, at 4, de facto resegregation is on the rise. See Appendix A, infra. It is reasonable to conclude that such resegregation can create serious educational, social, and civic problems. See supra, at 37–45. Given the conditions in which school boards work to set policy, see supra, at 20–21, they may need all of the means

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presently at their disposal to combat those problems. Yet the plurality would deprive them of at least one tool that some districts now consider vital—the limited use of broad race-conscious student population ranges.
I use the words “may need” here deliberately. The plurality, or at least those who follow JUSTICE THOMAS’ “ ‘color-blind’ ” approach, see ante, at 26–27 (THOMAS, J., concurring); Grutter, 539 U. S., at 353–354 (THOMAS, J., concurring in part and dissenting in part), may feel confident that, to end invidious discrimination, one must end all governmental use of race-conscious criteria including those with inclusive objectives. See ante, at 40–41 (plurality opinion); see also ante, at 26 (THOMAS, J., concurring). By way of contrast, I 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 with race. But, as a judge, I 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 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, at 40–41. See also Parents Involved VII, 426 F. 3d, at 1222 (Bea, J., dissenting) (“The way to end racial discrimination is to stop discriminating by race”). That is why the Equal Protection Clause outlaws 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 repre-

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sentatives, freedom to select the use of “race-conscious” criteria from among their available options. See Adarand Constructors, Inc., 515 U. S., at 237 (“[S]trict scrutiny” in this context is “[not] ‘strict in theory, but fatal in fact’ ” (quoting Fullilove, 448 U. S., at 519 (Marshall, J., concurring in judgment))). Today, however, the Court restricts (and some Members would eliminate) that leeway. I fear the consequences of doing so for the law, for the schools, for the democratic process, and for America’s efforts to create, out of its diversity, one Nation.
VI Conclusions
To show that the school assignment plans here meet the requirements of the Constitution, I have written at exceptional length. But that length is necessary. I cannot refer to the history of the plans in these cases to justify the use of race-conscious criteria without describing that history in full. I cannot rely upon Swann’s statement that the use of race-conscious limits is permissible without showing, rather than simply asserting, that the statement represents a constitutional principle firmly rooted in federal and state law. Nor can I explain my disagreement with the Court’s holding and the plurality’s opinion, without offering a detailed account of the arguments they propound and the consequences they risk.
Thus, the opinion’s reasoning is long. But 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 28.
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 Brown gave way

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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, 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 review—which are less burdensome, more egalitarian, and more effective than prior plans—continue in that tradition. And their history reveals school district goals whose remedial, educational, and democratic elements are inextricably intertwined each with the others. See Part I, supra, at 2–21.
Second, since this Court’s decision in Brown, 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 Swann to Grutter, 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.” Milliken, 418 U. S., at 783 (Marshall, J., dissenting). See also C. Sumner, Equality Before the Law: Unconstitutionality of Separate Colored Schools in Massachusetts, in 2 The Works of Charles Sumner 327, 371 (1849) (“The law contemplates not only that all be taught, but that all shall be taught together”). See Part II, supra, at 21–37.
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

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Grutter, diversity in public primary and secondary schools—where there is even more to gain—must be, a fortiori, a compelling state interest. Even apart from Grutter, five Members of this Court agree that “avoiding racial isolation” and “achiev[ing] a diverse student population” remain today compelling interests. Ante, at 17–18 (opinion of KENNEDY, J.). These interests combine remedial, educational, and democratic objectives. For the reasons discussed above, however, I disagree with JUSTICE KENNEDY that Seattle and Louisville have not done enough to demonstrate that their present plans are necessary to continue upon the path set by Brown. These plans are more “narrowly tailored” than the race-conscious law school admissions criteria at issue in Grutter. Hence, their lawfulness follows a fortiori from this Court’s prior decisions. See Parts III–IV, supra, at 37–57.
Fourth, the plurality’s approach risks serious harm to the law and for the Nation. Its view of the law rests either upon a denial of the distinction 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 about racially diverse schools. See Part V, supra, at 57–63.
Indeed, 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 educa-

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tional importance, their highly limited use of race—all these and more—make clear that the compelling interest here is stronger than in Grutter. The plans here are more narrowly tailored than the law school admissions program there at issue. Hence, applying Grutter’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 Grutter said. And what has happened to Swann? To McDaniel? To Crawford? To Harris? To School Committee of Boston? To Seattle School Dist. No. 1? After decades of vibrant life, they would all, under the plurality’s logic, be written out 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 Swann’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 with 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? Instead 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 Brown against segregation, and JUSTICE THOMAS likens the approach that I have taken to that of segregation’s defenders. See ante, at 39–41 (plurality opinion) (comparing Jim Crow segregation to Seattle and Louisville’s integration polices); ante, at 28–32 (THOMAS, J., concurring). But segregation poli-

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cies did not simply tell schoolchildren “where they could and could not go to school based on the color of their skin,” ante, at 40 (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. Indeed, it is a cruel distortion of history to compare Topeka, Kansas, in the 1950’s to Louisville and Seattle in the modern day—to equate the plight of Linda Brown (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 17 (KENNEDY, J., concurring in part and concurring in judgment). But 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 Brown? For much of this Nation’s history, the races remained divided. It was not long ago that people of different races drank from separate fountains, rode on separate buses, and studied in separate schools. In this Court’s finest hour, Brown v. Board of Education challenged this history and helped to change it. For Brown held out a promise. It was a promise embodied in three Amendments designed to make citizens of slaves. It was the promise of true racial equality—not as a matter of fine words on paper, but as a matter of everyday life in the Nation’s cities and schools. It was about the nature of a democracy that must work for all Americans. It sought one law, one Nation, one people, not simply as a matter of legal principle but in terms of how we actually live.

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Not everyone welcomed this Court’s decision in Brown. 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 101st Airborne Division to Little Rock, Arkansas, and federal troops were needed to enforce a desegregation decree. See Cooper v. Aaron, 358 U. S. 1 (1958). Today, almost 50 years later, attitudes toward race in this Nation have changed dramatically. Many parents, white and black alike, want their children to attend schools with children of different races. Indeed, 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 Brown. To invalidate the plans under review is to threaten the promise of Brown. The plurality’s position, I fear, would break that promise. This is a decision that the Court and the Nation will come to regret.
I must dissent.

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APPENDIXES TO OPINION OF BREYER, J. 
 A 

Resegregation Trends

Percentage of Black Students in 90–100 Percent Nonwhite and Majority Nonwhite Public Schools by Region, 1950–1954 to 2000, Fall Enrollment

Region
Northeast Border South Midwest West U. S.
Northeast Border South Midwest West U. S.

1950– 1960– 1954 1961 1968 1972 1976 1980 1989
Percentage in 90–100% Nonwhite Schools — 40 42.7 46.9 51.4 48.7 49.8 100 59 60.2 54.7 42.5 37.0 33.7 100 100 77.8 24.7 22.4 23.0 26.0 53 56 58.0 57.4 51.1 43.6 40.1 — 27 50.8 42.7 36.3 33.7 26.7
64.3 38.7 35.9 33.2 33.8 Percentage in 50–100% Nonwhite Schools — 62 66.8 69.9 72.5 79.9 75.4 100 69 71.6 67.2 60.1 59.2 58.0 100 100 80.9 55.3 54.9 57.1 59.3 78 80 77.3 75.3 70.3 69.5 69.4 — 69 72.2 68.1 67.4 66.8 67.4
76.6 63.6 62.4 62.9 64.9

1999
50.2 39.7 31.1 45.0 29.9 37.4
77.5 64.8 67.3 67.9 76.7 70.1

2000
51.2 39.6 30.9 46.3 29.5 37.4
78.3 67.0 69.0 73.3 75.3 71.6

Source: C. Clotfelter, After Brown: The Rise and Retreat of School Desegregation 56 (2004) (Table 2.1).

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Changes in the Percentage of White Students in Schools Attended by the Average Black Student by State, 1970–2003 (includes States with 5% or greater enrollment of black students in 1970 and 1980)

Alabama Arkansas California Connecticut Delaware Florida Georgia Illinois Indiana Kansas Kentucky Louisiana Maryland Massachusetts Michigan Mississippi Missouri Nebraska New Jersey New York Nevada N. Carolina Ohio Oklahoma Pennsylvania S. Carolina Tennessee Texas Virginia Wisconsin

% White
2003 60 70 33 68 57 51 52 57 82 76 87 48 50 75 73 47 78 80 58 54 51 58 79 61 76 54 73 39 61 79

% White Students in School of Average Black Student

1970 33 43 26 44 47 43 35 15 32 52 49 31 30 48 22 30 21 33 32 29 56 49 28 42 28 41 29 31 42 26

1980 38 47 28 40 69 51 38 19 39 59 74 33 35 50 23 29 34 66 26 23 68 54 43 58 29 43 38 35 47 45

1991 35 44 27 35 65 43 35 20 47 58 42 32 29 45 22 30 40 62 26 20 62 51 41 51 31 42 36 35 46 39

2003 30 36 22 32 49 34 30 19 41 51 65 27 23 38 22 26 33 49 25 18 38 40 32 42 30 39 32 27 41 29

Change

1970– 1980
5 4 2 -4 22 8 3 4 7 7 25 2 5 2 1 -1 13 33 -6 -6 12 5 15 16 1 2 9 4 5 19

1980– 1991
-3 -3 -1 -5 -4 -8 -3 1 8 -1 -2 -1 -6 -5 -1 1 6 -4 0 -3 -6 -3 -2 -7 2 -1 -2 0 -1 -6

1991– 2003
-5 -8 -5 -3 -16 -9 -5 -1 -6 -7 -7 -5 -6 -7 0 -4 -7 -13 -1 -2 -24 -11 -9 -9 -1 -3 -4 -8 -5 -10

Source: G. Orfield & C. Lee, Racial Transformation and the Changing Nature of Segregation 18 (Table 8) (Jan. 2006), (Civil Rights Project), online at http://www.civilrightspro ject.harvard.edu/research/deseg/Racial_Transformation.pdf.

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Percentage of White Students in Schools Attended by the Average Black Student, 1968–2000

Source: Modified from E. Frankenberg, C. Lee, & G. Orfield, A Multiracial Society with Segregated Schools: Are We Losing the Dream?, p. 30, fig. 5 (Jan. 2003), 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).

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Percentage of Students in Minority Schools by Race, 2000–2001

Source: Id., at 28, fig. 4. 


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B
Sources for Parts I–A and I–B
Part I–A: Seattle Section 1. Segregation ¶1 C. Schmid & W. McVey, Growth and Distribution of Minority Races in Seattle, Washington, 3, 7–9 (1964); F. Hanawalt & R. Williams, The History of Desegregation in Seattle Public Schools, 1954–1981, pp. 1–7 (1981) (hereinafter Hanawalt); Taylor, The Civil Rights Movement in the American West: Black Protest in Seattle, 1960–1970, 80 J. Negro Hist. 1, 2–3 (1995); A. Siqueland, Without A Court Order: The Desegregation of Seattle’s Schools 10 (1981) (hereinafter Siqueland); D. Pieroth, Desegregating the Public Schools, Seattle, Washington, 1954–1968, p. 6 (Dissertation Draft 1979) (hereinafter Pieroth).

Section 2. Preliminary Challenges, 1956 to 1969 ¶1 Pieroth 32, 41; Hanawalt 4.
 ¶2 Hanawalt 11–13. 
 ¶3 Id., at 5, 13, 27. 


Section 3. The NAACP’s First Legal Challenge and Seat-
 tle’s Response, 1969 to 1977
 ¶1 Complaint in Adams v. Forbes Bottomly, Civ. No. 6704 
 (WD Wash., 1969), pp. 10–11.
 ¶2 Id., at 10, 14–15. 
 ¶3 Planning and Evaluation Dept., Seattle Public Schools, 
 The Plan Adopted by the Seattle School Board to Desegre
gate Fifth, Sixth, Seventh, and Eighth Grade Pupils in the
 Garfield, Lincoln, and Roosevelt High School Districts by 
 September, 1971, pp. 6, 11 (on file with the University of 
 Washington Library); see generally Siqueland 12–15;
 Hanawalt 18–20. 
 ¶4 Siqueland 5, 7, 21. 


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Section 4. The NAACP’s Second Legal Challenge, 1977
 ¶1 Administrative Complaint in Seattle Branch, NAACP v. 
 Seattle School Dist. No. 1, pp. 2–3 (OCR, Apr. 22, 1977) 
 (OCR Complaint) (filed with Court as Exhibit in Seattle
 School Dist. No. 1, 458 U. S. 457); see generally Siqueland 
 23–24. 
 ¶2 Memorandum of Agreement between Seattle School
 District No. 1 of King Cty., Washington, and the OCR
 (June 9, 1978) (filed with the Court as Exh. A to Kiner 
 Affidavit in Seattle School Dist. No. 1, supra. 


Section 5. The Seattle Plan: Mandatory Busing, 1978 to 
 1988
 ¶1 See generally Seattle School Dist. No. 1, supra, at 461; 
 Seattle Public Schools Desegregation Planning Office, 
 Proposed Alternative Desegregation Plans: Options for 
 Eliminating Racial Imbalance by the 1979-80 School Year 
 (Sept. 1977) (filed with the Court as Exh. B to Roe Affida
vit in Seattle School Dist. No. 1, supra); Hanawalt 36–38, 
 40; Siqueland 3, 184, Table 4. 
 ¶2 Id., at 151–152; Hanawalt 37–38; Seattle School Dist.
 No. 1, supra, at 461; Complaint and Motion to Dismiss or 
 Affirm in Seattle School Dist. No. 1, supra. 
 ¶3 Seattle School Dist. No. 1, supra, at 461; Hanawalt 40. 
 ¶4 See generally Seattle School Dist. No. 1, supra.


Section 6. Student Choice, 1988 to 1998 ¶1 L. Kohn, Priority Shift: The Fate of Mandatory Busing
 for School Desegregation in Seattle and the Nation 27–30, 
 32 (Mar. 1996).
 ¶2 Id., at 32–34. 


Section 7. The Current Plan, 1999 to the Present ¶1 App. in No. 05–908, p. 84a; Brief for Respondents in No. 05–908, pp. 5–7; 426 F. 3d 1162, 1169–1170 (CA9 2005) (en banc) (Parents Involved VII).

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¶2 App. in No. 05–908, at 39–42; Research, Evaluation and Assessment, Student Information Services Office, Seattle Public Schools Data Profile: DistrictSummary December 2005, online at http://www.seattleschools.org/ area/siso/disprof/2005/DP05all.pdf; Brief for Respondents in No. 05–908, at 9–10, 47; App. in No. 05–908, at 309a; School Board Report, School Choices and Assignments 2005–2006 School Year (Apr. 2005), online at http:// www.seattleschools.org/ area/ facilties-plan/Choice/0506AppsChoicesBoardApril2005final.pdf. ¶3 Parents Involved in Community Schools v. Seattle School Dist., No. 1, 149 Wash. 2d 660, 72 P. 3d 151 (2003); 137 F. Supp. 2d 1224 (2001); 426 F. 3d 1162 (CA9 2005) (en banc) (Parents Involved VII).

Part I–B: Louisville Section 1. Before the Lawsuit, 1954 to 1972 ¶1 Hampton v. Jefferson Cty., Bd. of Ed., 72 F. Supp. 2d 753, 756, and nn. 2, 4, 5 (WD Ky. 1999) (Hampton I).

Section 2. Court-Imposed Guidelines and Busing, 1972 to 1991 ¶1 Hampton I, supra, at 757–758, 762; Newburg Area Council, Inc. v. Board of Ed. of Jefferson Cty., 489 F. 2d 925 (CA6 1973), vacated and remanded, 418 U. S. 918 (1974), reinstated with modifications, 510 F. 2d 1358 (CA6 1974) (per curiam); Judgment and Findings of Fact and Conclusions of Law in Newburg Area Council, Inc. v. Board of Ed., of Jefferson Cty., Nos. 7045 and 7291 (WD Ky., July 30, 1975) (1975 Judgment and Findings). ¶2 Id., at 2, 3, and Attachment 1. ¶3 Id., at 4–16. ¶4 Memorandum Opinion and Order in Haycraft v. Board of Ed. of Jefferson Cty., Nos. 7045 and 7291, (WD Ky., June 16, 1978), pp. 1, 2, 4, 18 (1978 Memo & Order). ¶5 Memorandum Opinion and Order, Haycraft v. Board of

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Ed. of Jefferson Cty., Nos. 7045 and 7291 (WD Ky., Sept. 24, 1985), p. 3; Memorandum from Donald W. Ingwerson, Superintendent, to the Board of Education, Jefferson Cty. Public School Dist., pp. 1, 3, 5 (Apr. 4, 1984) (1984 Memorandum); Memorandum from Donald W. Ingwerson, Superintendent, to the Board of Education, Jefferson County Public School District, pp. 4–5 (Dec. 19, 1991) (1991 Memorandum).

Section 3. Student Choice and Project Renaissance, 1991 to 1996 ¶1 1991 Memorandum 1–4, 7–11 (Stipulated Exh. 72); 
 Brief for Respondents in No. 05–915, P. 12, n. 13.
 ¶2 1991 Memorandum 14–16.
 ¶3 Id., at 11, 14–15. 
 ¶4 Id., at 15–16; Memorandum from Stephen W. 
 Daeschner, Superintendent, to the Board of Education, 
 Jefferson Cty. Public School Dist., p. 2 (Aug. 6, 1996) (1996
 Memorandum). 


Section 4. The Current Plan: Project Renaissance Modified, 1996 to 2003 ¶1 1996 Memorandum 1–4; Brief for Respondents in No.
 05–915, at 12, and n. 13. 
 ¶2 1996 Memorandum 4–7, and Attachment 2; Hampton I, 
 supra, at 768. 
 ¶3 1996 Memorandum 5–8; Hampton I, supra, at 768, 
 n. 30. ¶4 Hampton v. Jefferson Cty. Bd. of Ed., 102 F. Supp. 2d 358, 359, 363, 370, 377 (WD Ky. 2000) (Hampton II). ¶5 Id., at 380–381.

Section 5. The Current Lawsuit, 2003 to the Present ¶1 McFarland v. Jefferson Cty. Public Schools, 330 F. Supp. 2d 834 (WD Ky. 2004); McFarland v. Jefferson Cty. Public Schools, 416 F. 3d 513 (2005); Memorandum

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from Stephen W. Daeschner, Superintendent, to the Board of Education, Jefferson Cty. Public School Dist., 3–4 (Apr. 2, 2001).

 
 Case: 2:00-cv-1205 As of: 10/20/2014 01:09 PM PDT 1 of 15
CLOSED,REMAND,REOPEN
U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:00−cv−01205−BJR

PICS v. Seattle School Dist, et al Assigned to: Judge Barbara J. Rothstein Demand: $0 Case in other court: 9th Circuit, 09−35105 Cause: 42:1983 Civil Rights Act
Plaintiff
Parents Involved in Community Schools a Washington nonprofit corporation

Date Filed: 07/18/2000 Date Terminated: 08/04/2009 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Daniel Benjamin Ritter DAVIS WRIGHT TREMAINE (SEA) 1201 THIRD AVENUE STE 2200 SEATTLE, WA 98101−3045 206−622−3150 Fax: 206−622−3150 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Harry James Franklyn Korrell , III DAVIS WRIGHT TREMAINE (SEA) 1201 THIRD AVENUE STE 2200 SEATTLE, WA 98101−3045 206−622−3150 Email: harrykorrell@dwt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Seattle School District No 1 a political subdivision of the State of Washington

represented by Carol Sue Janes BENNETT BIGELOW &LEEDOM 601 UNION STREET SUITE 1500 SEATTLE, WA 98101 206−622−5511 Fax: FAX 622−8986 Email: csjanes@bbllaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Stephen Green SEATTLE SCHOOL DISTRICT #1 OFFICE OF GENERAL COUNSEL PO BOX 34165 MS 32−151 SEATTLE, WA 98124 206−252−0110 Fax: 206−298−7110 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Madden BENNETT BIGELOW &LEEDOM 601 UNION STREET SUITE 1500 SEATTLE, WA 98101 206−622−5511 Fax: FAX 622−8986

Case: 2:00-cv-1205 As of: 10/20/2014 01:09 PM PDT 2 of 15

Email: mmadden@bbllaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shannon Marie McMinimee TACOMA PUBLIC SCHOOLS OFFICE OF LEGAL SERVICES 601 S. 8TH STREET TACOMA, WA 98401 253−571−1013 Email: smcmini@tacoma.k12.wa.us ATTORNEY TO BE NOTICED

Defendant
Joseph Olchefske in his official capacity as superintendent

represented by Carol Sue Janes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark Stephen Green (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Madden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Barbara Schaad−Lamphere in her official capacity as President of the Board of Directors of Seattle Pulic Schools

represented by Carol Sue Janes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark Stephen Green (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Madden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Donald Nielson in his official capacity as Vice President of the Board of Directors of Seattle Public Schools

represented by Carol Sue Janes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark Stephen Green (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Madden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant

Case: 2:00-cv-1205 As of: 10/20/2014 01:09 PM PDT 3 of 15

Steven Brown

represented by Carol Sue Janes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark Stephen Green (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Madden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Jan Kumasaka

represented by Carol Sue Janes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark Stephen Green (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Madden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Michael Preston

represented by Carol Sue Janes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark Stephen Green (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Madden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Nancy Waldman in their official capacities as memebers of the Board of Directors

represented by Carol Sue Janes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark Stephen Green (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Madden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:00-cv-1205 As of: 10/20/2014 01:09 PM PDT 4 of 15

Counter Claimant Seattle School District No 1
Counter Claimant Joseph Olchefske
Counter Claimant Barbara Schaad−Lamphere
Counter Claimant Donald Nielson

represented by Carol Sue Janes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Stephen Green (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Madden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shannon Marie McMinimee (See above for address) ATTORNEY TO BE NOTICED
represented by Carol Sue Janes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Stephen Green (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Madden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol Sue Janes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Stephen Green (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Madden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol Sue Janes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Stephen Green (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:00-cv-1205 As of: 10/20/2014 01:09 PM PDT 5 of 15

Counter Claimant Steven Brown
Counter Claimant Jan Kumasaka
Counter Claimant Michael Preston
Counter Claimant Nancy Waldman

Michael Madden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol Sue Janes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Stephen Green (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Madden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol Sue Janes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Stephen Green (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Madden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol Sue Janes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Stephen Green (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Madden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol Sue Janes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Stephen Green (See above for address)

Case: 2:00-cv-1205 As of: 10/20/2014 01:09 PM PDT 6 of 15
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Madden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Counter Defendant
Parents Involved in Community Schools

represented by Daniel Benjamin Ritter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Harry James Franklyn Korrell , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/18/2000 07/20/2000 07/21/2000 07/28/2000 07/28/2000 07/28/2000 07/28/2000 08/01/2000 08/03/2000 08/03/2000 09/01/2000 09/22/2000
09/22/2000

# Docket Text
1 COMPLAINT (Summons(es) issued) Receipt # 300864 (PM) Modified on 07/28/2000 (Entered: 07/24/2000)
2 ATTORNEY APPEARANCE for defendants by Michael Madden (RS) (Entered: 07/26/2000)
3 ACCEPTANCE/ACKNOWLEDGEMENT OF SERVICE of summons and complaint by defendants on 7/18/00 (KERR) (Entered: 07/27/2000)
4 ANSWER to complaint [1−1] and COUNTERCLAIM by defendant against plaintiff (VK) (Entered: 08/02/2000)
5 NOTICE by defendants of ASSOCIATION OF ATTORNEY by Mark S. Green (VK) (Entered: 08/02/2000)
6 REQUESTS for production and interrogatories by defendant Seattle School Dist for (VK) (Entered: 08/02/2000)
7 AFFIDAVIT OF SERVICE by defendant of counterclaim answer [4−1], of counterclaim complaint [4−2] etc. (VK) (Entered: 08/02/2000)
10 ANSWER TO COUNTERCLAIM [4−2] by counter−defendant PICS (KERR) (Entered: 08/03/2000)
8 ORDER re: DISCOVERY and DEPOSITIONS by Judge Marsha J. Pechman (cc: counsel, Judge) (TG) (Entered: 08/03/2000)
9 ORDER/NOTICE OF JOINT STATUS REPORT Joint Status Report due 9/2/00 (cc: counsel, Judge) (TG) (Entered: 08/03/2000)
11 JOINT STATUS REPORT filed by all parties. Est. Trial Days: 5 (RS) (Entered: 09/08/2000)
12 ORDER by Judge Marsha J. Pechman setting trial and related dates. Last date for adding new parties is 10/23/00; expert disclosures due 11/15/01; discovery ddl set for 1/15/01 ; mtn filing ddl set for 1/25/01 ; pretrial order ddl set for 2/14/01 ; pretrial conf set for 1:30 2/19/01 ; trial brief ddl set for 3/8/01 ; trial set for 3/13/01 Motions in Limine deadline 2/1/01 ; (cc: counsel, Judge) (MD) (Entered: 09/25/2000)
13 ORDER by Judge Marsha J. Pechman ; 39.1 designation effective set for 12/1/00 (cc: counsel, Judge) (MD) (Entered: 09/25/2000)

Case: 2:00-cv-1205 As of: 10/20/2014 01:09 PM PDT 7 of 15

11/15/2000 12/11/2000 12/14/2000 12/14/2000 12/14/2000
12/19/2000 12/21/2000
12/21/2000
12/28/2000 12/29/2000 12/29/2000 12/29/2000 12/29/2000 12/29/2000 12/29/2000 12/29/2000 01/04/2001 01/04/2001 01/04/2001

14 STIPULATION and ORDER by Judge Marsha J. Pechman : Disclose Expert Witnesses by 12/15/00 ; ; 39.1 designation effective extended to 1/15/01 (cc: counsel, Judge) (MD) (Entered: 11/16/2000)
LODGED ORDER: stipulation and order modifying case schedule (MD) (Entered: 12/12/2000)
15 MINUTE ORDER: by Judge Marsha J. Pechman recuses herself and the Case reassigned to Judge Barbara J. Rothstein (cc: counsel, MJP, BJR, Intake, Liz) (MD) (Entered: 12/15/2000)
16 ORDER re: DISCOVERY and DEPOSITIONS by Judge Barbara J. Rothstein (cc: counsel, Judge) (KERR) (Entered: 12/18/2000)
17 ORDER SETTING TRIAL and PRETRIAL SCHEDULES and Designating case under Local Rule CR 39.1 by Judge Barbara Jacobs Rothstein:Court Trial set for 9:30 5/7/01 ; Pretrial Order set for 4/9/01 ; Trial briefs to be submitted by 4/23/01 ; Motions in Limine deadline 4/23/01 ; Motion filing ddl 2/15/01 ; 39.1 designation effective 2/28/01 ; Discovery deadline set for 2/5/01 ; Disclose Expert Witnesses by 1/8/01 ; Disclose Rebuttal Expert Witnesses by 2/22/01 ; Court Trial set for 5 days (cc: counsel, Judge) (KERR) (Entered: 12/18/2000)
LODGED ORDER: re: stipulated mtn relieving parties of obligation to mediate (KERR) (Entered: 12/19/2000)
18 MINUTE ORDER: by Judge Barbara J. Rothstein − The parties' mtn for an order relieving them of the LR 39.1 obligation to mediate is DENIED. The court hereby refers the parties in this dispute to Judge Dwyer for mediation. Parties to contact Trish Graham to schedule a mediation confr in February (cc: counsel, Judge) (KERR) (Entered: 12/21/2000)
19 STIPULATED MOTION AND ORDER MODIFYING CASE SCHEDULE by Judge Barbara J. Rothstein : Disclose Expert Witnesses by 1/15/01 ; discovery ddl amd to 2/15/01 ; mtn filing ddl amd to 2/15/01 Motions in limine deadline amd to 2/22/01 ; pretrial order ddl amd to 3/7/01 ; trial brief ddl amd to 3/29/01 ; trial amd to 9:30 4/3/01 (cc: counsel, Judge) (KERR) (Entered: 12/21/2000)
20 MAIL RETURNED: re: Minute Order [18−1] addressed to Daniel Ritter Esq. (KERR) (Entered: 12/28/2000)
21 MOTION by defendants for partial summary judgment NOTED FOR 2/2/01 (KERR) (Entered: 12/29/2000)
22 MEMORANDUM by defendants in support of motion for partial summary judgment [21−1] (KERR) (Entered: 12/29/2000)
23 DECLARATION of Morgan Lewis by defendants re motion for partial summary judgment [21−1] (KERR) (Entered: 12/29/2000)
24 DECLARATION of Rebecca Taylor by defendants re motion for partial summary judgment [21−1] (KERR) (Entered: 12/29/2000)
25 DECLARATION of Michael Madden by defendants in support of motion for partial summary judgment [21−1] (KERR) (Entered: 12/29/2000)
LODGED ORDER: re: motion for partial summary judgment [21−1] (KERR) (Entered: 12/29/2000)
26 AFFIDAVIT OF SERVICE by defendants of motion for partial summary judgment [21−1] etc (KERR) (Entered: 12/29/2000)
27 MOTION by plaintiff for a continuance on its reply to dfts' motion for partial summ jgm until 2/15/01 NOTED FOR 1/19/01 (RS) (Entered: 01/05/2001)
28 MEMORANDUM by plaintiff in support of motion for a continuance on its reply to dfts' motion for partial summ jgm until 2/15/01 [27−1] (RS) (Entered: 01/05/2001)
29 DECLARATION of Harry J.F. Korrell by plaintiff re motion for a continuance on its reply to dfts' motion for partial summ jgm until 2/15/01 [27−1] (RS) (Entered:

Case: 2:00-cv-1205 As of: 10/20/2014 01:09 PM PDT 8 of 15

01/04/2001 01/04/2001
01/04/2001
01/04/2001 01/04/2001 01/08/2001
01/10/2001 01/10/2001 01/10/2001 01/11/2001 01/11/2001 01/22/2001
02/02/2001
02/07/2001 02/07/2001 02/07/2001 02/08/2001 02/08/2001 02/08/2001 02/08/2001 02/08/2001

01/05/2001)
LODGED ORDER: re: motion for a continuance on its reply to dfts' motion for partial summ jgm until 2/15/01 [27−1] (RS) (Entered: 01/05/2001)
30 MOTION by plaintiff to shorten time on motion for a continuance on its reply to dfts' motion for partial summ jgm until 2/15/01 [27−1] NOTED FOR 1/9/01 (RS) (Entered: 01/05/2001)
LODGED ORDER: re: motion to shorten time on motion for a continuance on its reply to dfts' motion for partial summ jgm until 2/15/01 [27−1] [30−1] (RS) (Entered: 01/05/2001)
31 MOTION by defendants for leave to file overlength brief (dfts' memo in support of partial summ jgm motion) NOTED FOR 2/2/01 (RS) (Entered: 01/05/2001)
LODGED ORDER: re: motion for leave to file overlength brief (dfts' memo in support of partial summ jgm motion) [31−1] (RS) (Entered: 01/05/2001)
32 RESPONSE by defendants to motion to shorten time on motion for a continuance on its reply to dfts' motion for partial summ jgm until 2/15/01 [27−1] [30−1] (RS) (Entered: 01/09/2001)
33 RESPONSE by defendants to motion for a continuance on its reply to dfts' motion for partial summ jgm until 2/15/01 [27−1] (RS) (Entered: 01/12/2001)
34 DECLARATION of Michael Madden by defendant re: motion response [33−1] (RS) (Entered: 01/12/2001)
35 AFFIDAVIT OF SERVICE by defendant of motion response [33−1] etc (RS) (Entered: 01/12/2001)
36 REPLY by plaintiff TO RESPONSE to motion for a continuance on its reply to dfts' motion for partial summ jgm until 2/15/01 [27−1] (RS) (Entered: 01/12/2001)
37 SUPPLEMENTAL DECLARATION of Harry Korrell by plaintiff re: motion reply [36−1] (RS) (Entered: 01/12/2001)
38 MINUTE ORDER: by Judge Barbara J. Rothstein renoting dfts' motion for partial summary judgment [21−1] to 2/16/01; response due 2/12/01; dfts' reply due 2/15/01 (cc: counsel, Judge) (RS) (Entered: 01/23/2001)
39 ORDER by Judge Barbara J. Rothstein GRANTING dfts' motion for leave to file overlength brief (dfts' memo in support of partial summ jgm motion) [31−1] (cc: counsel, Judge) (RS) (Entered: 02/02/2001)
40 MOTION by defendants to exclude pltf's expert NOTED FOR 2/9/01 (RS) (Entered: 02/09/2001)
41 DECLARATION of Michael Madden by defendant re motion to exclude pltf's expert [40−1] (RS) (Entered: 02/09/2001)
42 AFFIDAVIT OF SERVICE by defendant motion to exclude pltf's expert [40−1] etc (RS) (Entered: 02/09/2001)
44 RESPONSE by plaintiff to exclude pltf's rebuttal expert (RS) (Entered: 02/12/2001)
45 DECLARATION of Harry Korrell by plaintiff re: motion response [44−1] (RS) (Entered: 02/12/2001)
46 AFFIDAVIT OF SERVICE by plaintiff motion response [44−1] etc (RS) (Entered: 02/12/2001)
47 REPLY DECLARATION of Michael Madden TO RESPONSE to motion to exclude pltf's expert (RS) (Entered: 02/12/2001)
48 AFFIDAVIT OF SERVICE motion reply [47−1] (RS) (Entered: 02/12/2001)

Case: 2:00-cv-1205 As of: 10/20/2014 01:09 PM PDT 9 of 15

02/09/2001 02/12/2001 02/12/2001
02/12/2001
02/12/2001
02/12/2001
02/12/2001 02/15/2001 02/15/2001 02/15/2001 02/15/2001
02/15/2001 02/15/2001 02/15/2001 02/15/2001 02/15/2001 02/15/2001 02/15/2001 02/15/2001
02/15/2001 02/15/2001 02/15/2001

43 MINUTE ORDER: by Judge Barbara J. Rothstein DENYING dfts' motion to exclude pltf's expert [40−1] (cc: counsel, Judge) (RS) (Entered: 02/09/2001)
49 Cross MOTION by plaintiff for partial summary judgment on state law claims (Oral Argument Requested) NOTED FOR 3/9/01 (VK) (Entered: 02/13/2001)
50 MEMORANDUM by plaintiff in support of cross motion for partial summary judgment on state law claims (Oral Argument Requested) [49−1], and opposing defts' motion for partial summary judgment [21−1] (VK) (Entered: 02/13/2001)
51 DECLARATION of Harry J. F. Korrell by plaintiff re attachments to pltf's memo supporting its motion for partial summary judgment on state law claims (Oral Argument Requested) [49−1], and opposing defts' motion for partial summary judgment [21−1] (FILED IN EXPANDO) (VK) (Entered: 02/13/2001)
52 DECLARATION of Jill Kurfirst by plaintiff re motion for partial summary judgment on state law claims (Oral Argument Requested) [49−1] (VK) (Entered: 02/13/2001)
53 AFFIDAVIT OF SERVICE by plaintiff motion for partial summary judgment on state law claims (Oral Argument Requested) [49−1] etc. (VK) (Entered: 02/13/2001)
LODGED ORDER: re: granting pltf's motion for partial summary judgment on state law claims (Oral Argument Requested) [49−1] (VK) (Entered: 02/13/2001)
54 MOTION by defendants for partial summary judgment re compelling interests NOTED FOR 3/9/01 (CL) (Entered: 02/16/2001)
55 MEMORANDUM by defendants in support of motion for partial summary judgment re compelling interests [54−1] (CL) (Entered: 02/16/2001)
56 DECLARATION of Nan Stavnshoj by defendants, exhibits attached. (CL) (Entered: 02/16/2001)
57 DECLARATION of Michael Madden by defendants in support of motion for partial summary judgment re compelling interests [54−1], exhibits attached. (CL) (Entered: 02/16/2001)
58 DECLARATION of Wm T. Trent by defendants, exhibits attached. (CL) (Entered: 02/16/2001)
59 DECLARATION of John Vacchiery by defendants, exhibits attached. (CL) (Entered: 02/16/2001)
60 DECLARATION of Eric Benson by defendants (CL) (Entered: 02/16/2001)
LODGED ORDER: re: motion for partial summary judgment re compelling interests [54−1] (CL) (Entered: 02/16/2001)
61 AFFIDAVIT OF SERVICE by defendants of motion for partial summary judgment re compelling interests [54−1], etc. (CL) (Entered: 02/16/2001)
62 MOTION by plaintiff PICS for partial summary judgment on federal law claims, OA Req'd NOTED FOR 3/9/01 (CL) (Entered: 02/20/2001)
63 MEMORANDUM by plaintiff PICS in support of motion for partial summary judgment on federal law claims, OA Req'd [62−1] (CL) (Entered: 02/20/2001)
Declaration of Harry J.F. Korrell regarding attachments to pltfs mem. re: memorandum [63−1]. (See declaration complete declaration filed/docket #69). (CL) Modified on 02/20/2001 (Entered: 02/20/2001)
LODGED ORDER: re: motion for partial summary judgment on federal law claims, OA Req'd [62−1] (CL) (Entered: 02/20/2001)
64 AFFIDAVIT OF SERVICE by plaintiff PICS of motion for partial summary judgment on federal law claims, OA Req'd [62−1], etc. (CL) (Entered: 02/20/2001)
65 REPLY by defendants TO RESPONSE to motion for partial summary judgment [21−1], and in OPPOSITION to pltfs' cross mtn (CL) Modified on 02/20/2001

Case: 2:00-cv-1205 As of: 10/20/2014 01:09 PM PDT 10 of 15

02/15/2001 02/15/2001 02/15/2001 02/15/2001 02/16/2001
02/16/2001 02/20/2001
02/20/2001 02/20/2001
02/20/2001 02/27/2001 03/05/2001
03/05/2001 03/05/2001 03/05/2001 03/05/2001 03/05/2001
03/05/2001 03/05/2001 03/05/2001 03/08/2001

(Entered: 02/20/2001)
65 RESPONSE by defendants to motion for partial summary judgment on state law claims (Oral Argument Requested) [49−1] (CL) (Entered: 02/20/2001)
66 SUPPLEMENTAL DECLARATION of Morgan Lewis by defendants in support of motion for partial summary judgment [21−1] (CL) (Entered: 02/20/2001)
67 DECLARATION of Michael Madden by defendant authenticating exhibits to dfts' reply br in support of motion response [65−1] (CL) (Entered: 02/20/2001)
68 AFFIDAVIT OF SERVICE by defendants of motion response [65−1], of motion reply [65−1], etc. (CL) (Entered: 02/20/2001)
69 DECLARATION of Harry J.F. Korrell by plaintiff PICS regarding attachments to pltf's memorandum supporting its mtn for partial sum jgm on the federal law claims, exhibits attached. (FILED IN EXPANDO) (CL) Modified on 02/20/2001 (Entered: 02/20/2001)
70 AFFIDAVIT OF SERVICE by plaintiff PICS of declaration [69−1] (CL) (Entered: 02/20/2001)
71 MINUTE ORDER: by Judge Barbara J. Rothstein setting settlement conf with Judge Dwyer at 9am on 3/14/01; settlement briefs due 3/9/01 (cc: counsel, Judges) (RS) (Entered: 02/21/2001)
72 ERRATA by plaintiff to memorandum in support of mtn for p sum jgmt of Federal Law Claims [63−1] (KERR) (Entered: 02/22/2001)
73 CORRECTED MEMORANDUM by plaintiff in support of motion for partial summary judgment on federal law claims, OA Req'd [62−1] (KERR) (Entered: 02/22/2001)
PRAECIPE by Seattle School Dist, et al to attach or replace documents to motion reply [65−1] in the Court file. (KERR) (Entered: 02/22/2001)
74 MINUTE ORDER: by Judge Barbara J. Rothstein vacating the pretrial order deadline (cc: counsel, Judge) (RS) (Entered: 03/05/2001)
75 RESPONSE (OPPOSITION) to motion for partial summary judgment on federal law claims [62−1] and CROSS MOTION by defendants re narrow tailoring NOTED FOR 3/23/01. Cross motion not noted−ltr sent (RS) (Entered: 03/07/2001)
76 DECLARATION of Michael Madden by defendant re: motion response [75−1], re motion re narrow tailoring [75−2] (RS) (Entered: 03/07/2001)
77 SECOND SUPPLEMENTAL DECLARATION of Morgan Lewis by defendants re: motion response [75−1] (RS) (Entered: 03/07/2001)
78 DECLARATION of Joseph Olchefske by defendant re: motion response [75−1] (RS) (Entered: 03/07/2001)
79 AFFIDAVIT OF SERVICE by defendant motion response [75−1] etc (RS) (Entered: 03/07/2001)
80 RESPONSE (MEMORANDUM OPPOSING) by plaintiff to motion for partial summary judgment re compelling interests [54−1] OA REQ'D by pltf (RS) (Entered: 03/07/2001)
81 DECLARATION of David Armor PhD by plaintiff re: motion response [80−1] (RS) (Entered: 03/07/2001)
82 AFFIDAVIT OF SERVICE by plaintiff motion response [80−1] etc (RS) (Entered: 03/07/2001)
110 DECLARATION of Harry J.F. Korrell by plaintiff re: motion response [80−1] (RS) (Entered: 07/12/2001)
83 REPLY by defendants TO RESPONSE to motion for partial summary judgment re compelling interests [54−1] (RS) (Entered: 03/09/2001)

Case: 2:00-cv-1205 As of: 10/20/2014 01:09 PM PDT 11 of 15

03/08/2001 03/08/2001 03/08/2001 03/08/2001 03/08/2001 03/08/2001 03/12/2001 03/14/2001 03/14/2001 03/14/2001 03/21/2001 03/26/2001 03/26/2001 03/26/2001 03/27/2001 03/28/2001 04/05/2001 04/06/2001
04/06/2001 04/26/2001

84 DECLARATION of Michael Madden by defendant re: motion reply [83−1] (RS) (Entered: 03/09/2001)
85 AFFIDAVIT OF SERVICE by defendant motion reply [83−1] etc (RS) (Entered: 03/09/2001)
86 REPLY by plaintiff TO RESPONSE to motion for partial summary judgment on federal law claims, OA Req'd [62−1] (RS) (Entered: 03/09/2001)
87 REPLY by plaintiff TO RESPONSE to motion for partial summary judgment on state law claims [49−1] (RS) (Entered: 03/09/2001)
88 DECLARATION of Harry J.F. Korrell by plaintiff re: motion reply [86−1] (filed in expando) (RS) (Entered: 03/09/2001)
89 AFFIDAVIT OF SERVICE by plaintiff motion reply [86−1] etc (RS) (Entered: 03/09/2001)
PRAECIPE by PICS to attach or replace documents to motion response [75−1] in the Court file. (RS) (Entered: 03/13/2001)
90 MOTION by defendants to strike decl of Harry JF Korrell attachments 18, 27 and 28 and the decl of Kathryn Loppnow NOTED FOR 3/30/01 (KERR) (Entered: 03/19/2001)
LODGED ORDER: re: motion to strike decl of Harry JF Korrell attachments 18, 27 and 28 and the decl of Kathryn Loppnow [90−1] (KERR) (Entered: 03/19/2001)
91 AFFIDAVIT OF SERVICE by defendants of motion to strike decl of Harry JF Korrell attachments 18, 27 and 28 and the decl of Kathryn Loppnow [90−1] etc (KERR) (Entered: 03/19/2001)
92 MINUTE ORDER: by Judge Barbara J. Rothstein SETTING OA on motions for partial summary judgment [54−1] [62−1] [49−1] [21−1] at 10:00 am on 3/28/01. Each side will have 20 minutes (cc: counsel, Judge) (KERR) (Entered: 03/21/2001)
94 RESPONSE by plaintiff to motion to strike decl of Harry JF Korrell attachments 18, 27 and 28 and the decl of Kathryn Loppnow [90−1] (RS) (Entered: 03/28/2001)
LODGED ORDER: re: motion to strike decl of Harry JF Korrell attachments 18, 27 and 28 and the decl of Kathryn Loppnow [90−1] (RS) (Entered: 03/28/2001)
95 AFFIDAVIT OF SERVICE by defendant motion reply [93−1] etc (RS) (Entered: 03/28/2001)
93 REPLY by defendants TO RESPONSE to motion to strike decl of Harry JF Korrell attachments 18, 27 and 28 and the decl of Kathryn Loppnow [90−1] (RS) (Entered: 03/28/2001)
96 MINUTES OF ORAL ARGUMENT ON CROSS MOTIONS FOR SUMMARY JGM: BJR; Dep Clerk: K Lane; CR: Laurene Kelly; cnsl present. After hearing arguments of counsel, ct takes matter under advisement (RS) (Entered: 03/30/2001)
97 MINUTE ORDER: by Judge Barbara J. Rothstein DENYING dfts' motion to strike decl of Harry JF Korrell attachments 18, 27 and 28 and the decl of Kathryn Loppnow [90−1] (cc: counsel, Judge) (RS) (Entered: 04/06/2001)
98 ORDER by Judge Barbara J. Rothstein Defts' motions for sj. GRANTING defts motion for partial summary judgment re compelling interests [54−1], DENYING pltf's motion for partial summary judgment on federal law claims, OA Req'd [62−1], DENYING pltf's motion for partial summary judgment on state law claims (Oral Argument Requested) [49−1], GRANTING defts' motion for partial summary judgment (cc: counsel, Judge) (MD) (Entered: 04/06/2001)
99 JUDGMENT: by Judge Barbara J. Rothstein, Defts' motions for sj are granted and pltf's motions for sj are denied. (cc: counsel, Judge, Jgm. Book) Entered on: 4/6/01 (MD) (Entered: 04/06/2001)
100 Bill of costs; taxation due by 5/4/01 at 9am ( assigned to Clerk Bruce Rifkin ) by defendants NOTED FOR 5/4/01 (RS) (Entered: 04/30/2001)

Case: 2:00-cv-1205 As of: 10/20/2014 01:09 PM PDT 12 of 15

04/26/2001 04/26/2001 05/01/2001
05/01/2001 05/01/2001 05/01/2001 05/03/2001 05/07/2001 05/07/2001 05/11/2001 05/17/2001 05/17/2001
05/18/2001 10/25/2001 11/16/2001 11/18/2005
11/18/2005 09/17/2007 12/20/2007
12/20/2007 12/21/2007

101 MEMORANDUM by defendants of costs re Bill of costs; taxation due by 5/4/01 at 9am ( assigned to Clerk Bruce Rifkin ) [100−1] (RS) (Entered: 04/30/2001)
102 AFFIDAVIT OF SERVICE by defendants re Bill of costs; taxation due by 5/4/01 at 9am ( assigned to Clerk Bruce Rifkin ) [100−1] (RS) (Entered: 04/30/2001)
103 NOTICE OF APPEAL (01−35450)by plaintiff PICS from Dist. Court decision [99−2], [98−1] (cc: CCA, Judge, counsel) (JK) Modified on 05/17/2001 (Entered: 05/03/2001)
APPEAL FEE RECEIVED: fee in amount of $ 105.00 ( Receipt # 402961) (JK) (Entered: 05/03/2001)
Civil Appeals Docketing Statement, by plaintiff PICS , forwarded to the Mediator's Office in Seattle. [103−1] (JK) (Entered: 05/03/2001)
104 CERTIFICATE of Service re: appeal [103−1] (JK) (Entered: 05/03/2001)
APPEAL NOTIFICATION packet sent to CCA (cc: cnsl) (JK) (Entered: 05/03/2001)
105 COSTS taxed for defendants in the amount of $ 1,065.65 against plaintiff (cc: counsel, Judge, Jgm. Book) (RS) (Entered: 05/07/2001)
106 MAIL RETURNED: re: appeal [103−1] addressed to PICS, Seattle School Dist, Carol Sue Janes; returned for postage. (JK) (Entered: 05/07/2001)
107 TRANSCRIPT DESIGNATION and Ordering Form for dates: 3/28/01 [103−1] (JK) (Entered: 05/11/2001)
NOTIFICATION by Circuit Court of Appellate Docket Number 01−35450 (JK) (Entered: 05/17/2001)
108 TIME SCHEDULE ORDER (CCA 01−35450) Appellant notify appellee of trans. ordered 5/11/01; appellee notify appellant of additional trans. 5/21/01; appellant file trans with district court 5/31/01; Court Reporter file trans. 7/2/01; Appellant opening brief due 8/17/01; Appellee brief due 9/17/01; Reply brief due w/in 14 days of service of appellee brief (JK) Modified on 05/17/2001 (Entered: 05/17/2001)
109 TRANSCRIPT of proceedings for the following date(s): 3/28/01 (Re: oral argument [103−1] ) CR initials: L. Kelly (JK) (Entered: 05/22/2001)
CLERK'S RECORD ON APPEAL transmitted to Circuit (5 vol., 3 expando's) (SA) (Entered: 10/25/2001)
CERTIFICATE OF RECORD Transmitted to USCA (cc: all counsel) (SA) (Entered: 11/16/2001)
113 MANDATE of USCA (01−35450) as to 103 Notice of Appeal filed by Parents Involved in Community Schools, the judgment of the said district court is hereby AFFIRMED. (SA) (Entered: 11/22/2005)
114 COSTS taxed in amount of $1644.98 against Appellant Parents Involved in Community Schools (SA) (Entered: 11/22/2005)
115 MANDATE of USCA (01−35450) It is ordered and adjudged that the judgment of the said District Court is hereby REMANDED. (LMK, ) (Entered: 09/18/2007)
116 MOTION for Entry of Judgment by Plaintiff Parents Involved in Community Schools. Noting Date 1/11/2008.(Korrell, Harry) Modified on 12/21/2007 (ECS, ). (Entered: 12/20/2007)
117 Letter from Harry Korrell re 116 MOTION for Entry of Judgment. (Korrell, Harry) Modified on 12/21/2007 (ECS, ). (Entered: 12/20/2007)
118 NOTICE of Association of Attorney by Shannon Marie McMinimee on behalf of Counter Claimant Seattle School District No 1, Defendant Seattle School District No 1. (McMinimee, Shannon) (Entered: 12/21/2007)

Case: 2:00-cv-1205 As of: 10/20/2014 01:09 PM PDT 13 of 15

12/28/2007 01/15/2008 01/15/2008 01/29/2008 02/01/2008 02/15/2008 05/12/2008
06/06/2008 06/20/2008 06/27/2008 09/29/2008 01/12/2009 01/12/2009
01/21/2009 01/26/2009

119 MINUTE ORDER setting briefing schedule re 116 MOTION for Entry of Judgment ; opposition due 1/15/08, reply due 1/29/08, clerk renoted motion for 1/30/2008 by Judge Barbara J. Rothstein. (RS, ) (Entered: 12/28/2007)
120 RESPONSE, by Defendant Seattle School District No 1, to 116 MOTION for Entry of Judgment. (Madden, Michael) (Entered: 01/15/2008)
121 DECLARATION of Cheryl Chow filed by Defendant Seattle School District No 1 re 116 MOTION for Entry of Judgment (Madden, Michael) (Entered: 01/15/2008)
122 REPLY, filed by Plaintiff Parents Involved in Community Schools, TO RESPONSE to 116 MOTION for Entry of Judgment (Korrell, Harry) (Entered: 01/29/2008)
123 REPLY, filed by Counter Claimant Seattle School District No 1, TO RESPONSE to 116 MOTION for Entry of Judgment (Madden, Michael) (Entered: 02/01/2008)
Appeal Record Returned: 5 Volumes; 3 Expandos (LMK, ) (Entered: 02/15/2008)
124 MINUTE ORDER by Judge Barbara J. Rothstein. Re: 116 MOTION for Entry of Judgment filed by Parents Involved in Community Schools the court hereby directs the parties to brief this issue on the following schedule: PICS may file a brief in support of its entitlement to a fee award no later than Friday, June 6, 2008; Opposition briefing from defendants will be due on Friday, June 20, 2008; and PICS reply brief will be due on Friday, June 27,2008.(CL, ) Modified on 5/12/2008 (CL, ). (cc: mailed to M. Green, D. Ritter) (Entered: 05/12/2008)
125 Plaintiff's BRIEF On Its Entitlement to Attorney's Fees by Plaintiff Parents Involved in Community Schools. (Korrell, Harry) (Entered: 06/06/2008)
126 MEMORANDUM re 125 Brief Re Entitlement to Attorneys Fees by Defendant Seattle School District No 1. (Attachments: # 1 Appendix A−PICS' Ninth Circuit Brief on Fees, # 2 Appendix B−Court's Order Denying Fees)(Madden, Michael) (Entered: 06/20/2008)
127 REPLY BRIEF re 125 Brief by Plaintiff Parents Involved in Community Schools.. (Korrell, Harry) (Entered: 06/27/2008)
***Motion terminated per chambers : 116 MOTION for Entry of Judgment filed by Parents Involved in Community Schools. (TS, ) (Entered: 09/29/2008)
129 ORDER VACATING JUDGMENT IN FAVOR OF DEFENDANT AND GRANTING JUDGMENT IN FAVOR OF PLAINTIFF, by Judge Barbara J. Rothstein. (CL)(cc: mailed to attys Daniel Ritter and Mark Green) (Entered: 01/12/2009)
130 JUDGMENT IN A CIVIL CASE/DECISON BY COURT. IT IS ORDERED AND ADJUDGED; In accordance with the decision of the United States Supreme Court in this case, Parents Involved in Community Schools v. Seattle School District No. 1 et al., 127 S. Ct. 2738 (2007); the judgment of the Supreme Court entered on July 28, 2007 (remanding this case to the Court of Appeals for the Ninth Circuit for further proceedings); and the Judgment of the Court of Appeals entered on August 22, 2007 (remanding the case to this court for further proceedings); and based upon the reasoning of the Supreme Court in its aforesaid decision, the court hereby: 1). vacates its April 6, 2001 grant of summary judgment in favor of Defendant, Seattle School District No. 1; 2). grants, in part, Plaintiff, Parents Involved in Community Schools' Motion for Entry of Judgment; 3). denies Plaintiff's Motion for Entry of Judgment insofar as it seeks injunctive or declaratory relief; 4. denies the District's Cross Motion for Dismissal; and 5. finds that Plaintiff is a prevailing party as that term is used in the Civil Rights Attorney's Fees Awards Act, 42 U.S.C. § 1988, but declines, at this juncture, to declare that PICS is entitled to an award of attorney's fees.(CL) . (cc: attys Daniel Ritter and Mark Green). (Entered: 01/12/2009)
131 Mail Returned as Undeliverable re 129 Order Vacating Judgment addressed to Daniel Benjamin Ritter (VP) (Entered: 01/21/2009)
132 BILL OF COSTS and Attorney's Declaration by Plaintiff Parents Involved in Community Schools. Noting Date 2/17/2009, (Korrell, Harry) (Entered: 01/26/2009)

Case: 2:00-cv-1205 As of: 10/20/2014 01:09 PM PDT 14 of 15

01/26/2009 01/26/2009
01/26/2009 01/28/2009
02/05/2009 02/05/2009 02/05/2009 02/05/2009 02/05/2009 02/05/2009 02/06/2009 02/06/2009 02/12/2009 02/12/2009

133 MOTION for Attorney Fees and Costs by Plaintiff Parents Involved in Community Schools. Noting Date 2/13/2009, (Korrell, Harry) (Entered: 01/26/2009)
134 DECLARATION of Supplemental Declaration of Harry Korrell in Support of Plaintiff's Motion for Attorneys' Fees and Costs and Exhibit A filed by Plaintiff Parents Involved in Community Schools re 133 MOTION for Attorney Fees and Costs (Attachments: # 1 Exhibit A−1, part 1 to Korrell Supp Decl, # 2 Exhibit A−1, part 2 to Korrell Supp Decl, # 3 Exhibit A−2 to Korrell Supp Decl, # 4 Exhibit A−3 to Korrell Supp Decl, # 5 Exhibit A−4 to Korrell Supp Decl, # 6 Exhibit A−5, part 1 to Korrell Supp Decl, # 7 Exhibit A−5, part 2 to Korrell Supp Decl, # 8 Exhibit A−5, part 3 to Korrell Supp Decl, # 9 Exhibit A−5, part 4 to Korrell Supp Decl, # 10 Exhibit A−5, part 5 to Korrell Supp Decl, # 11 Exhibit A−5, part 6 to Korrell Supp Decl, # 12 Exhibit A−5, part 7 to Korrell Supp Decl, # 13 Exhibit A−6 to Korrell Supp Decl, # 14 Exhibit Ex B (McKay Decl) to Korrell Supp Decl, # 15 Exhibit Exs C−E (Gorder, Carvin, Taylor Decls) to Korrell Supp Decl)(Korrell, Harry) (Entered: 01/26/2009)
MOTION(S) REFERRED TO BRUCE RIFKIN, CLERK: re 132 BILL OF COSTS and Attorney's Declaration by Plaintiff Parents Involved in Community Schools filed by Parents Involved in Community Schools (MD) (Entered: 01/27/2009)
135 MINUTE ORDER − The court has received a letter from Defendant's counsel dated January 28, 2009, seeking clarification of this court's January 12, 2009 Order. At this time, the court expects Defendant to address the issue of Plaintiff's entitlement to an award of attorney's fees, not the reasonableness of the fees requested by Judge Barbara J. Rothstein. (MD) Modified on 1/28/2009 −mailed copy of minute order to Attorney Daniel Ritter and Attorney Mark Green(MD). (Entered: 01/28/2009)
136 NOTICE OF APPEAL (09−35105) as to 129 Order by Plaintiff Parents Involved in Community Schools. Filing Fee $455, Receipt number 09810000000001664290. (Korrell, Harry) Modified on 2/12/2009 (SA). (Entered: 02/05/2009)
137 REPRESENTATION STATEMENT, by Plaintiff Parents Involved in Community Schools, (re: 136 Notice of Appeal.) (Korrell, Harry) (Entered: 02/05/2009)
138 Civil Appeals Docketing Statement by Plaintiff Parents Involved in Community Schools, to be transmitted by Clerk to Circuit Court of Appeals. (Korrell, Harry) (Entered: 02/05/2009)
Appeal Fees received: fee in the amount of $ 455.00 (receipt # SEA1664290) re 136 Notice of Appeal filed by Parents Involved in Community Schools (SA) (Entered: 02/05/2009)
139 APPEAL NOTIFICATION packet sent to US Court of Appeals re 136 Notice of Appeal (Attachments: # 1 Docket)(SA) (Entered: 02/05/2009)
140 Mail Returned as Undeliverable re 135 Minute Order, addressed to Daniel B. Ritter (MD) (Entered: 02/06/2009)
141 NOTICE of Change of Address for Daniel B. Ritter ; filed by Plaintiff Parents Involved in Community Schools. (Korrell, Harry) (Entered: 02/06/2009)
142 MEMORANDUM Re Special Circumstances by Defendant Seattle School District No 1. (Attachments: # 1 Declaration of Michael Madden)(Madden, Michael) (Entered: 02/06/2009)
143 NOTICE OF Cross APPEAL (09−35121) by Defendant Seattle School District No 1. Filing Fee $455, Receipt number 09810000000001671027. (Attachments: # 1 Civil Appeals Docketing Statement, # 2 Representation Statement)(Madden, Michael) Modified on 2/18/2009, add CCA case # (SA). (Entered: 02/12/2009)
144 TIME SCHEDULE ORDER (09−35105)as to 136 Notice of Appeal filed by Parents Involved in Community Schools : Appellant shall notify Appellee regarding transcripts by 2/17/09; Appellee to notify Appellant regarding any additional transcripts by 2/25/09; Transcript designation due by 3/9/09; Transcript by court reporter due by 4/6/09; Appellants opening brief due by 5/26/09;

Case: 2:00-cv-1205 As of: 10/20/2014 01:09 PM PDT 15 of 15

02/12/2009 02/13/2009 02/13/2009 02/18/2009 02/27/2009 02/27/2009 03/18/2009
07/28/2009 08/04/2009

Appellees response brief due by 6/22/09; Appellants optional reply brief due within 14 days of service of the response brief. (SA) Modified on 2/18/2009 (SA). (Entered: 02/12/2009)
USCA Case Number 09−35105 for 136 Notice of Appeal filed by Parents Involved in Community Schools. (SA) (Entered: 02/12/2009)
145 APPEAL NOTIFICATION packet sent to US Court of Appeals re 143 Notice of Appeal (Attachments: # 1 Docket)(LMK) (Entered: 02/13/2009)
146 REPLY, filed by Plaintiff Parents Involved in Community Schools, TO RESPONSE to 133 MOTION for Attorney Fees and Costs (Korrell, Harry) (Entered: 02/13/2009)
147 ORDER granting 132 Motion for Bill of Costs in the amount of $ 7,443.79 against Defendant Seattle School District No. 1 by Clerk Bruce Rifkin.(BR) (Entered: 02/18/2009)
148 TRANSCRIPT REQUEST by Plaintiff Parents Involved in Community Schools Requesting Attorney: Harry James Franklyn Korrell, III. (Korrell, Harry) (Entered: 02/27/2009)
149 TRANSCRIPT REQUEST by Plaintiff Parents Involved in Community Schools Requesting Attorney: Harry James Franklyn Korrell, III. (Korrell, Harry) (Entered: 02/27/2009)
150 MINUTE ORDER−IN CHAMBERS PROCEEDINGS: It has come to the court's attention that the parties to this case are participating in the 9th Circuit's Mediation Program. Consequently, this court will temporarily defer ruling on the issue of PICS' entitlement to attorneys' fees. The parties are instruction to contact the court with a status update on or before May 15, 2009. Motions terminated: 133 MOTION for Attorney Fees and Costs filed by Parents Involved in Community Schools, by Judge Barbara J. Rothstein. (MD) Modified on 3/18/2009 −mailed copy of order to Daniel Ritter and Mark Stephen Green(MD). (Entered: 03/18/2009)
151 NOTICE of Withdrawal of Plaintiff's Motion for Attorney's Fees and Costs ; filed by Plaintiff Parents Involved in Community Schools. (Korrell, Harry) (Entered: 07/28/2009)
152 MANDATE of USCA (09−35105, 09−35121) as to 143 Notice of Appeal, filed by Seattle School District No 1, 136 Notice of Appeal filed by Parents Involved in Community Schools, The parties have stipulated to the dismissal of these appeals. These appeals are DISMISSED. Costs and attorney fees are allocated according to the provisions of the stipulation. (SA) (Entered: 08/04/2009)

 
 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

PARENTS INVOLVED IN COMMUNITY SCHOOLS, a Washington nonprofit corporation,

No. 01-35450 D.C. No. CV-OO-OI205-BJR

Plaintiff-counter-defendant Appellant,

JUDGMENT

V.

SEATTLE SCHOOL DISTRICT, NO.1, a political subdivision of the State of Washington; et al.,
Defendants-counter-claimants Appellees.

NOV 1 8 1005

Appeal from the United States District Court for the Western District of Washington (Seattle).
This Cause came on to be heard on the Transcript ofthe Record from the United States District Court for the Western District of Washington (Seattle) and was duly submitted.
On consideration whereof, it is now here ordered and adjudged by this Court, that the judgment of the said District Court in this cauSe be, and hereby is AFFIRMED.
Filed and entered: 10120/05
111111111111111111111111111.111111 1111111 11111111111111111111111111111111111
00-( :V-0t205-MAN

 
 285 F.3d 1236 (2002)
PARENTS INVOLVED IN COMMUNITY SCHOOLS, a Washington non-profit corporation, Plaintiff-counter-defendant-Appellant, v.
SEATTLE SCHOOL DISTRICT, NO. 1, a political subdivision of the State of Washington; Joseph Olchefske, in his official capacity as superintendent; Barbara Schaadlamphere, in
her official capacity as President of the Board of Directors of Seattle Public Schools; 1237 Donald Neilson, in his official *1237 capacity as Vice President of the Board of Directors of
Seattle Public Schools; Steven Brown; Jan Kumasaka; Michael Preston; Nancy Waldman, in their official capacities as members of the board of Directors, Defendants-counterclaimants-Appellees.
No. 01-35450.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted December 4, 2001. Filed April 16, 2002.
Order Granting Injunction April 26, 2002.
1238 *1238 Daniel B. Ritter (argued) & Harry J.F. Korrell (argued), Davis Wright Tremaine, LLP, Seattle, WA, for the plaintiff-counter-defendant-appellant.
Michael Madden (argued) & Carol Sue Janes, Bennett, Bigelow & Leedom, P.S., Seattle, WA; Mark S. Green, Office of the General Counsel, Seattle School District No. 1, Seattle, WA, for the defendants-counter-claimantsappellees.
Sharon L. Browne, Pacific Legal Foundation, Sacramento, CA; Russell C. Brooks, Pacific Legal Foundation, Bellevue, WA, for amici curiae American Civil Rights Institute, American Civil Rights Union, Center for Equal Opportunity, and Pacific Legal Foundation.
Paul J. Lawrence, Preston, Gates & Ellis LLP, Seattle, WA, for amicus curiae American Civil Liberties Union.
1239 *1239 Before: REAVLEY[*], O'SCANNLAIN, and GRABER, Circuit Judges.
Opinion by Judge O'SCANNLAIN; Concurrence by Judge GRABER.
O'SCANNLAIN, Circuit Judge.
We are asked to decide the legality of the use of race in determining which students will be admitted to oversubscribed high schools in Seattle, Washington.
I
Seattle, Washington is a vibrant and racially diverse metropolis in the Pacific Northwest. Based on the parties' submissions, it appears that approximately 70% of the residents of Seattle, Washington are white, while approximately 30% are nonwhite. This racial diversity is reflected in Seattle's public schools, where the percentages are more evenly balanced: the students are approximately 40% white and 60% non-white.
The racial distribution of the community is not, however, homogeneous. It appears that more white students live in the northern part of Seattle, and in areas close to the waterfront in all parts of the city, than in the southern part of the city. Specifically, approximately 66% of white students live north of downtown. In contrast, approximately

77% of non-white students live south of downtown0907including 84% of all African-American students, 74% of all Asian students, and 65% of all Hispanic students.
A
Seattle School District Number 1 (the "School District"), which is charged with educating the children of this metropolis, operates ten public high schools: Ballard, Chief Sealth, Cleveland, Franklin, Garfield, Ingraham, Nathan Hale, Rainier Beach, Roosevelt, and West Seattle. Four of these High schools (Ballard, Ingraham, Nathan Hale, and Roosevelt) are located north of downtown Seattle; of the remaining six, five (Chief Sealth, Cleveland, Franklin, Garfield, and Rainier Beach) are located south of downtown, and one (West Seattle) is located directly west of downtown.
Seattle's public high schools vary widely in quality, as measured by such factors as standardized test scores, numbers of college preparatory and Advanced Placement (AP) courses offered, percentage of students taking AP courses and Scholastic Aptitude Tests (SATs), percentage of graduates who attend college, Seattle Times college-preparedness rankings, University of Washington rankings, and disciplinary statistics. Moreover, some of the schools offer programs or opportunities not offered in other schools.[1]
The School District has never been segregated by law ("de jure" segregated). However, due to Seattle's racial diversity and its racially imbalanced housing patterns, if Seattle's children were simply assigned to the high schools nearest their homes, the high schools would become segregated in fact ("de facto" segregated). As part of its continuing effort to prevent de facto segregation and to promote racial diversity in its high schools, instead 1240 of *1240 assigning students to the high schools nearest their homes, the School District has adopted an open choice assignment plan, pursuant to which each student may choose to attend any of the ten high schools in the city, so long is there is room available in that school.
In its current incarnation, the School District's open choice plan provides for a multi-step assignment process. Under the plan, each student is first asked to list the high schools he would like to attend, in order of preference. If a student is not admitted to his first-choice school because it is full, the School District attempts to assign him to his second-choice school, and so on. If a student is not admitted to any of his chosen schools, he receives a mandatory assignment to a school with available space.
Not surprisingly, under this system, a significant problem arises when a school becomes "oversubscribed" 0907 i.e., more students want to attend that school than there are spaces. For the academic year 2000-01, five of the School District's high schools were oversubscribed, and five were undersubscribed.[2] The magnitude of oversubscription underscores its problematic nature: for example, in the academic year 2000-01, approximately 82% of students selected one of the oversubscribed high schools as their first choice, while only about 18% picked one of the undersubscribed high schools as their first choice.
To solve the problem of oversubscription, the School District's assignment plan uses a series of four "tiebreakers" to determine which students will be admitted to each oversubscribed school.
1
The first tiebreaker gives preference to students with siblings already attending the school requested. This tiebreaker accounts for somewhere between 15% and 20% of high school assignments.
2
If after applying the first tiebreaker a school is still oversubscribed, the School District next proceeds to a second tiebreaker, which is based entirely on race. For purposes of the racial tiebreaker, students are deemed to be of the race specified in their registration materials, which ask parents to specify the student's race using codes provided on a form. Because registration must be completed in person by a parent, if a parent declines to specify

a racial category, the School District assigns the student a category based on a visual inspection of the parent (and the student, if present) at registration. It is this racial tiebreaker that spawned this lawsuit.
The School District uses the racial tiebreaker in an attempt to "balance" the racial makeup of the various Seattle public high schools. Accordingly, if an oversubscribed school's population deviates from the overall racial makeup of Seattle's students (40% white and 60% non-white) by more than a set number of percentage points, then the 1241 School District designates the school "integration positive."[3] The racial *1241 tiebreaker is then applied when determining assignments to integration positive schools such that students whose race (i.e., white or non-white) will move the school closer to that ratio are given admission preference.[4] As presently in force this tiebreaker has a "thermostat"; the School District ceases to use the racial tiebreaker for the year at any school once use of the tiebreaker has brought the school into racial balance. All told, the racial tiebreaker determines about 10% of high school assignments.
3
Once all students of the preferred racial category are admitted to an oversubscribed high school, any remaining seats are allocated using a third tiebreaker: distance. Applicants are admitted in order of the distance they live from the school, with those who live closest to the school admitted first.
4
A fourth tiebreaker, a lottery, is rarely used in high school assignments because distances are calculated to one hundredth of a mile for purposes of the third tiebreaker.
B
Parents Involved in Community Schools (the "Parents") describe themselves as "a nonprofit corporation formed by parents whose children have been or may be denied admission to the high schools of their choosing solely because of race." The Parents put forward four members as "examples" of the effects of the racial tiebreaker.
First, the Parents point to members Jill Kurfurst and Winnie Bachwitz. Each has a child who entered high school in the 2000-01 school year and plans to attend college. After reviewing test statistics, course offerings, extracurricular programs, college rankings, disciplinary statistics, and proximity, the Kurfurst and Bachwitz children applied for admission to Ballard, Roosevelt, and Nathan Hale High Schools. They chose Ballard first, partly because of its unique Biotech Academy. However, both children, while accepted into the program, were denied admission to Ballard because of their race and consequently were not allowed to enroll. They were also denied admission to Nathan Hale because of their race. Both were assigned to Ingraham High School.
When assignments were announced for the 2000-01 school year, the School District apparently did not run school buses to Ingraham from the neighborhoods where Kurfurst and Bachwitz lived. Consequently, attendance at Ingraham would have required the children to take three Metro buses to get to school, resulting in a round-trip commute of over four hours. Both students hoped to participate in after-school activities; that would have required each of them to leave home at 5:30 a.m., return at 8:00 or 9:00 p.m., and on each trip to wait for three buses, often alone and in the dark. Little time would have remained for homework and family activities. These assignments being unacceptable to both families, they appealed, but without success. Ultimately, Kurfurst and Bachwitz decided to send their children to private schools.
1242 *1242 Two other Parents, Rick Hack and John Miller, have children in Seattle public middle schools who expect to apply for high school admission for 2002-03, and will likely be affected by the racial tiebreaker.

C
The Parents commenced this legal action in July of 2000, challenging the School District's use of the racial tiebreaker for high school admissions as illegal under state and federal law. Specifically, the Parents alleged that by using race to decide who may attend the oversubscribed high schools, the School District discriminates and grants a preference on the basis of race 0907 thereby violating the Washington Civil Rights Act, Wash. Rev.Code § 49.60.400 (passed in 1998 as Voter Initiative 200, or I-200).[5] The Parents further alleged that the racial tiebreaker violates both the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and the Civil Rights Act of 1964, 42 U.S.C. § 2000d.[6]
The Parents and the School District both moved for summary judgment on all claims; neither contended that genuine issues of material fact precluded summary judgment. The court granted the School District's motion and denied the Parents' motion. In a published opinion dated April 6, 2001, the district court upheld the use of the racial tiebreaker under both state and federal law. See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 137 F.Supp.2d 1224 (W.D.Wash.2001).
With respect to the state claim, the court emphasized its duty to "construe [section 49.60.400], if possible, in a way that makes [that provision] consistent with the state and federal constitutions...." Id. at 1227. Because it read sections 1 and 2 of Article IX of the Washington Constitution as requiring school districts "to provide equal educational opportunity to students of all races, to limit racial isolation, and to provide a racially and ethnically diverse educational experience," id. at 1228, it reasoned that "applying [section 49.60.400] to outlaw the school district's integration plan would render [it] unconstitutional," id. at 1227. It therefore interpreted the provision in such a way as to find it inapplicable to the School District's assignment plan. Id. at 1232.
1243 With regard to the federal claims, the district court analyzed the admissions plan *1243 using strict scrutiny. Id. at 1232-40. It found that "[a]chieving racial diversity and mitigating the effects of de facto residential segregation are ... compelling government interests as a matter of law," id. at 1235, and that the School District's assignment plan "is narrowly tailored to further the compelling interests asserted in this case," id. at 1239.
The district court entered judgment for the School District in accordance with its opinion. This timely appeal followed.
II
On appeal, the Parents contend first that the School District's use of the racial tiebreaker violates section 49.60.400 of the Washington Revised Code. That law provides that "[t]he state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." Wash. Rev.Code § 49.60.400(1). Section 49.60.400 applies to the School District. See id. 49.60.400(7) ("For the purposes of this section, `state' includes, but is not necessarily limited to, ... school district[s] ... within the state.").
Because the courts of Washington have not yet construed this provision, we must, in our constitutionally ordained role as oracles of Washington law, construe the provision as we believe that the Supreme Court of Washington would.[7]See NLRB v. Calkins, 187 F.3d 1080, 1089 (9th Cir.1999) (explaining that where state's highest court has not addressed an issue of state law, a federal court's task is to "predict how the highest state court would decide the issue"). Thus, we must conduct our analysis guided by the same principles that the Washington Supreme Court would apply to interpret this voter initiative.
In determining the proper construction of a ballot initiative like I-200, the Washington Supreme Court applies general rules of statutory construction. See Hi-Starr, Inc. v. Washington State Liquor Control Bd., 106 Wash.2d 455, 722 P.2d 808, 812 (1986) ("The rules of statutory construction apply to initiatives as well as to legislative enactments."). Thus, "where the language of the enactment is plain, unambiguous, and well understood

according to its natural and ordinary sense and meaning, the enactment is not subject to judicial interpretation." W. Petroleum Imps., Inc. v. Friedt, 127 Wash.2d 420, 899 P.2d 792, 795 (1995).
The parties debate the meaning to be gleaned from various aspects of the legislative history surrounding the adoption of section 49.60.400. We need not reach that step in the analysis, however, because under Washington law the court ends its inquiry with the text of an initiative when the text is clear. See, e.g., Amalgamated Transit Union Local 587 v. State, 142 Wash.2d 183, 11 P.3d 762, 780 (2001) ("Where the language of an initiative enactment is plain, unambiguous, and well understood according to its natural and ordinary sense and meaning, the enactment is not subject to judicial interpretation."); Senate Republican Campaign Comm. v. Pub. Disclosure Comm'n, 133 Wash.2d 229, 943 P.2d 1358, 1365 (1997) (holding that the court was "not required to glean the 1244 intent of the people from sources other than these statutes" because *1244 the meaning of the statutory terms was clear); City of Tacoma v. State, 117 Wash.2d 348, 816 P.2d 7, 11 (1991) ("Because the intent of the people is clearly expressed in the statute, we do not need to look to the [voters'] pamphlet.").
Finally, while generally the same as the interpretation of legislatively enacted statutes, the interpretation of voter initiatives is unique in one crucial way: "[i]n construing the meaning of an initiative, the language of the enactment is to be read as the average informed lay voter would read it."[8]Friedt, 899 P.2d at 795 (emphasis added).
A
The plain meaning of section 49.60.400 seems remarkably clear when it is applied to the School District's use of the racial tiebreaker. The provision unambiguously states that the School District "shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race ... in the operation of ... public education...." Wash. Rev.Code § 49.60.400(1) (emphasis added). We believe that an average lay voter would understand "preferential" treatment as "[o]f, relating to, or giving advantage or preference," The American Heritage Dictionary of the English Language, Online Edition (4th ed.2000) (visited Mar. 6, 2002), and "preference," in turn, as "[t]he selecting of someone or something over another or others," id. (visited Mar. 6, 2002). When applied to a zero-sum situation such as that involved in the present case, where only a certain number of individuals can be admitted to a given high school, the racial tiebreaker grants an advantage or preference on the basis of race: members of one group are selected for admission, while members of another are not, solely on the basis of race.
Under this plain meaning reading of the language, it is clear that section 49.60.400 prohibits the School District's use of the racial tiebreaker. The tiebreaker operates such that at one stage in the process of determining which students may attend oversubscribed high schools, the race of the students is determinative. If an oversubscribed school is "racially imbalanced" (i.e., there are "too many" white or nonwhite students there as the School District has defined that term, meaning within some acceptable range of deviation from a 60% non-white to 40% white ratio), students whose race will bring the school into balance are admitted, while other students are not. At Ballard, for instance, nonwhites are admitted preferentially because they are not white; and at Franklin, whites are admitted preferentially because they are white. There is no question, then, that the tiebreaker selects some students over others based on their race. See also Wessmann v. Gittens, 160 F.3d 790, 794 (1st Cir.1998) (concluding that admissions policy "grant[ed] [a] preference[]" based on race where, "[a]t a certain point in its application process ... the Policy relies on race and ethnicity, and nothing else, to select a subset of entrants"). Thus, because the tiebreaker "grant[s] preferential treatment to" some students, applying to an oversubscribed 1245 Seattle public *1245 high school "on the basis of race," the tiebreaker runs afoul of the plain meaning of section 49.60.400(1).[9]
B
The district court's opinion is in substantial agreement with the foregoing analysis of the meaning of section 49.60.400. Indeed, the court recognized that "[i]t may be said ... that nonwhite children given spots at Nathan Hale and Ballard, or white children given spots at Franklin, are being granted a `preference' in common parlance." Parents Involved, 137 F.Supp.2d at 1232.[10] Apparently, however, the district court was concerned

that if section 49.60.400 barred the School District from using the racial tiebreaker, it might run afoul of the 1246 Washington Constitution *1246 Consequently, the court adopted a "saving construction" of the statute that upheld
the School District's assignment plan. See id. at 1227.[11] The court then attempted to buttress the reading that this method produced by looking to federal cases.
As demonstrated below, however, such an exercise was unnecessary. Nothing in Washington law or federal law would nullify section 49.60.400(1) if the provision bars the School District from using its racial tiebreaker. Moreover, contrary to the district court's approach, federal law actually supports 0907 rather than undermines 0907 the construction of "preferential treatment" that results from the foregoing plain meaning analysis.
1

The district court began by examining two sections of the Washington Constitution. The first, the preamble to the article of the Washington Constitution that deals with education, explains that "[i]t is the paramount duty of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste, or sex." Wash. Const. art. IX § 1. The succeeding section states that "[t]he legislature shall provide for a general and uniform system of public schools." Wash. Const. art. IX § 2.

The district court correctly observed that several decisions of the Washington Supreme Court teach that the Washington Constitution gives school districts the authority to use race-based classifications to achieve racial diversity (or, to put it differently, to remedy de facto segregation).[12] In State ex rel. Citizens Against Mandatory Bussing v. Brooks, 80 Wash.2d 121, 492 P.2d 536 (1972), for example, the Washington Supreme Court affirmed a trial court's decision thwarting a recall of several board members based on their planned implementation of a busing plan to remedy de facto segregation. The Court relied upon Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) for the proposition that

1247

[s]chool authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude ... that in order to prepare students to live in a pluralistic *1247 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 within the broad discretionary powers of school authorities.

Brooks, 492 P.2d at 541 (quoting Swann, 402 U.S. at 16, 91 S.Ct. 1267). Given this language in Swann, the court concluded that "if the Constitution supports court directed mandatory busing to desegregate schools in a system which is dual `de jure,' then such bussing [sic] is within the appropriate exercise of the discretion of school authorities in a system which is dual `de facto.'" Brooks, 492 P.2d at 541. It therefore found the proposed busing plan within the discretion of the board members and, consequently, declined to allow the plaintiffs to commence a recall of those officials for malfeasance or the like. Id. at 541-42. Brooks thus stands for the proposition that the use of race-based classifications to achieve racial diversity is, under Washington's constitution, "within the appropriate exercise of the discretion of school authorities in a system which is dual `de facto.'" Id. at 541. That is, it is permissible under the Washington Constitution. See also Citizens Against Mandatory Bussing v. Palmason, 80 Wash.2d 445, 495 P.2d 657, 659 (1972) (explaining that Brooks held that implementation of the plan "for the desegregation of schools within the district" was "within the lawful exercise of the discretion lodged in that board by statute").

Similarly in Palmason, a follow-up case to Brooks, the Washington Supreme Court upheld the authority of a school district to implement a mandatory busing plan to remedy de facto segregation in Seattle's public schools. The plaintiffs did not seriously dispute that the board had the authority to implement the plan; the trial court did not question this authority, either. Id. at 660. And while the plaintiffs asserted various "fundamental rights" that they thought abrogated the authority of the board to implement the plan, the Supreme Court was not persuaded. Absent some abrogation of its authority the board was free, the court explained, to implement its busing policy: "[I]t was the duty of the school board to act in the best interests of the majority of students; and the fact that some students might suffer adverse effects was not a consideration which, in law, they were required to find controlling." Id. at 665.

The Court made clear, however, that the school district was not required to end de facto segregation. Rather, achieving racial diversity was "a sound policy of the school system." Id. at 666; see also id. ("[T]he adoption of the method of desegregation under attack here was a proper exercise of the board's discretionary powers.") (emphasis added). Because the plaintiffs could not show that the plan was "unauthorized by law," id., the directors had discretion to implement it:
In seeking to achieve ... those purposes which the people of this state have embodied in their constitution and statutes affecting education, school district directors must necessarily make value judgments. Here they were faced with the problem of weighing those benefits which can be derived from adhering to the neighborhood school concept against those which can be expected to result from an integrated school system.... Faced with this dilemma, the defendant school directors concluded that their duty of providing for all children an equal opportunity for a sound education could most effectively be performed by adopting such a modification of the existing system.
Id. at 666-67.
After citing and analyzing these decisions, the district court concluded (and the School District argues on appeal) 1248 that because the Washington Constitution grants *1248 authority "to provide ... racially integrated schools, ... [a]n
initiative effecting an amendment to this authority would be unconstitutional under Washington law." Parents Involved, 137 F.Supp.2d at 1229. Accordingly, the district court reasoned that if section 49.60.400 bars the School District from using the racial tiebreaker, then that statute violates the Washington Constitution. As the above analysis makes clear, however, the district court's reasoning is flawed; nothing in the Washington Constitution requires the School District to provide racially diverse schools. As the decisions point out, the Washington Constitution merely provides school districts with the authority to adopt programs designed to achieve racial diversity in their schools. The constitutional provisions are, in this respect, permissive; they are not mandatory. Moreover, school districts may not exercise this permissively granted authority in any way "unauthorized by law."
In this case, unlike in any of the cases discussed, there is, in fact, a recently passed law 0907 Washington Revised Code section 49.60.400 0907 which prevents the School District from implementing its racial tiebreaker to achieve its goal of racially diverse schools. Because the constitutional provisions only permit the School District to achieve racial diversity using race-based measures, and do not require it to do so, then, this law does not violate the Washington Constitution. Cf. Coalition for Econ. Equity v. Wilson, 122 F.3d 692, 708 (9th Cir.1997) ("That the [U.S.] Constitution permits the rare race-based or gender-based preference hardly implies that the state cannot ban them altogether."). Rather, under Washington precedents, section 49.60.400 permissibly circumscribes the School District's authority to effectuate its constitutionally imposed mission to educate Washington's students.[13]
2
The district court also made extensive use of federal law in construing the meaning of section 49.60.400.[14] It 1249 relied *1249 principally on our decision in Coalition for Economic Equity v. Wilson. In Coalition, we examined the
validity of California's Proposition 209 0907 a provision that, in all relevant respects, was identical to Initiative 200. [15] We held that (1) Prop. 209 did not restructure the political process in a way impermissible under Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969) and Washington v. Seattle School District No. 1, 458 U.S. 457, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982), and (2) even if it did restructure the political process, it was not unconstitutional because it did not burden any individual's right to equal treatment. See Coalition, 122 F.3d at 706-07. In making the second of these points, we explained that Prop. 209 would not bar a voluntary school desegregation effort like the mandatory busing program discussed in Seattle because, under our precedent, such desegregation was a "deck shuffle" rather than a "stacked deck" program. See id. at 707 n. 16 (citing Associated Gen. Contractors of Cal. v. S.F. Unif. Sch. Dist., 616 F.2d 1381, 1387 (9th Cir.1980)).
In this case, the district court focused on this second point of Coalition. Reading Coalition at the highest level of generality, it reasoned that the Coalition opinion upheld the constitutionality of Prop. 209 only because it did not

bar voluntary school desegregation. See Parents Involved, 137 F.Supp.2d at 1231 (describing the opinion's distinction between "stacked deck" and "deck shuffle" programs as "critical to the case's holding"). Accordingly, the district court read Coalition as supporting the broad proposition that "[section 49.60.400] does not apply to programs designed to overcome racially imbalanced schools." Parents Involved, 137 F.Supp.2d at 1230.

We do not think that the language of Coalition fairly supports this reading. In Coalition, we concluded only that Prop. 209 did not invalidate voluntary desegregation programs of the type at issue in Seattle; we did not say that Prop. 209 would never invalidate a voluntary school desegregation program, no matter what it looked like. Accordingly, we were careful to point out that the busing program at issue in Seattle was "not inherently invidious, d[id] not work wholly to the benefit of certain members of one group and correspondingly to the harm of certain members of another group, and d[id] not deprive citizens of rights." Coalition, 122 F.3d at 707 n. 16.

The School District's racial tiebreaker, on the other hand, while perhaps similar in its objective, works in a way that differs crucially from the voluntary desegregation plan at issue in Seattle. As the U.S. Supreme Court explained, the plan at issue in Seattle

1250

ma[de] extensive use of busing and mandatory reassignments, desegregate[d] elementary schools by "pairing" and "triading" predominantly minority with predominantly white attendance areas, and by basing student assignments on attendance zones rather than on race. *1250 The racial makeup of secondary schools is moderated by "feeding" them from the desegregated elementary schools. The District represents that the plan results in the reassignment of roughly equal numbers of white and minority students, and allows most students to spend roughly half of their academic careers attending a school near their homes.

Seattle, 458 U.S. at 461, 102 S.Ct. 3187 (emphasis added) (record citation omitted). Contrast the plan in Seattle, which made no decisions based on race alone, with the racial tiebreaker at issue in this case, under which during one stage of the admissions process all decisions are made based solely on race. The racial tiebreaker at issue in this case, then, unlike the plan at issue in Seattle, is "inherently invidious." The conclusion that section 49.60.400 applies to the School District's use of the racial tiebreaker 0907 and, in fact, renders it illegal 0907 is, thus, entirely consistent with our decision in Coalition.

3

Curiously, in discussing federal law for support of its construction of section 49.60.400, the district court failed to mention the seminal Supreme Court case dealing with racial classifications in the context of educational admissions, Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (plurality opinion). We recently reaffirmed that, in this Circuit, Justice Powell's opinion in Bakke remains controlling law. See Smith v. University of Wash. Law Sch., 233 F.3d 1188, 1201 (9th Cir.2000), cert. denied, 532 U.S. 1051, 121 S.Ct. 2192, 149 L.Ed.2d 1024 (2001). And that opinion supports, rather than undermines, the conclusion that the plain meaning reading of section 49.60.400 is the correct reading.[16]
1251 *1251 Bakke, of course, dealt with the admissions program used by the University of California at Davis's Medical School. Under that program, a certain number of seats in each entering class was reserved for minority (i.e., nonwhite) students. Bakke, 438 U.S. at 274, 98 S.Ct. 2733. Bakke, a white male who was denied admission to the Medical School, brought suit claiming that the admissions program violated, inter alia, Title VI and the Equal Protection Clause. Id. at 278-79, 98 S.Ct. 2733.
Justice Powell wrote a plurality opinion for a splintered Court. He concluded that the program, which granted a "preference" to racial minorities, id. at 298, 98 S.Ct. 2733, was
undeniably a classification based on race and ethnic background. To the extent that there existed a pool of at least minimally qualified minority applicants to fill the [reserved] seats, white applicants could compete only for [the remaining] seats in the entering class, rather than the [total number of seats] open to minority applicants. Whether this limitation is described as a quota or a goal, it is a line drawn on the basis of race and ethnic status.

Id. at 289, 98 S.Ct. 2733. He found this preference no less problematic because it worked to the benefit of minorities; as he explained, "[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal." Id. at 289-90, 98 S.Ct. 2733; see also id. at 293, 98 S.Ct. 2733 ("Although many of the Framers of the Fourteenth Amendment conceived of its primary function as bridging the vast distance between members of the Negro race and the white `majority,' ... the Amendment itself was framed in universal terms, without reference to color, ethnic origin, or condition of prior servitude.") (citation omitted). Accordingly, he explained, "[o]ver the years, this Court has consistently repudiated [d]istinctions between citizens solely because of their ancestry as being odious to a free people whose institutions are founded upon the doctrine of equality." Id. at 294, 98 S.Ct. 2733 (internal quotation marks omitted). Indeed, Justice Powell seemed especially disturbed by the idea that the admissions program conceived of the world under a "two-class theory 0907 that is, based upon differences between white and Negro." Id. at 295, 98 S.Ct. 2733 (internal quotation marks omitted). He found this approach problematic because "the white `majority'" is itself "composed of various minority groups, most of which can lay claim to a history of prior discrimination at the hands of the State and private individuals." Id.
With these principles in mind, Justice Powell declared that if the purpose of the Medical School's admissions program was "to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected not as insubstantial but as facially invalid." Id. at 307. "Preferring members of any one group for no reason other than race or ethnic origin," he concluded, "is discrimination for its own sake." Id.
1252 Like the admissions program at issue in Bakke, the School District's use of the *1252 racial tiebreaker effectively divides the universe of Seattle public high school students into two categories: white and nonwhite. At integrationpositive schools, it then forecloses students whose race represents a "majority" at the school from consideration from a fixed number of seats.[17] Such a racial classification, under which students are admitted based solely on the color of their skin, is materially indistinguishable from the classification at issue in Bakke. It is clearly a preference. Cf. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 524, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (Scalia, J., concurring) ("[I]t is implicit in our cases that after the dual [de jure] school system has been completely disestablished, the States may no longer assign students by race."). Thus, federal authority actually lends support to the notion that the racial tiebreaker constitutes a preference, and consequentially, that it violates Washington law.
C
We conclude, therefore, that the School District's use of the racial tiebreaker violates Washington law. Because "we look first to state law to resolve this issue, in accordance with our longstanding principle that courts should avoid making federal constitutional decisions unless and until necessary," Clark v. City of Lakewood, 259 F.3d 996, 1016 n. 12 (9th Cir.2001), we need not decide whether it may also offend the Fourteenth Amendment's Equal Protection Clause, or the Civil Rights Act of 1964, 42 U.S.C. § 2000d.
III
The School District seeks to ensure racial diversity in each of its high schools, so that each School District student can obtain the benefits of attending a racially and ethnically diverse school. While this may well be a reasonable policy choice by the School District, the citizens of Washington have made a policy choice of their own. Washingtonians have collectively decided that, even though racial diversity may well benefit the School District's public school students, the price of that diversity 0907 that some students are told that they may not attend their high school of choice simply because their skin is the wrong color 0907 is too high. Accordingly, the citizens have concluded that whatever its benefits, racial diversity should not be achieved by a process that allows the government to "discriminate against, or grant preferential treatment to, any individual or group on the basis of race, ... color, ethnicity, or national origin...." Wash. Rev.Code § 49.60.400(1).

As federal judges, we are not charged with the arduous task of choosing between these competing policy choices on their merits. Indeed, "how we judges might weigh competing policy considerations is simply irrelevant." Rucker v. Davis, 203 F.3d 627, 639 (9th Cir.2000), rev'd en banc, 237 F.3d 1113 (9th Cir.2001), rev'd sub nom. Dep't of Hous. and Urban Dev. v. Rucker, ___ U.S. ___, 122 S.Ct. 1230, ___ L.Ed.2d ___ (2001). Instead, our proper role 1253 is a limited one; we do not decide which choice is "better," but only whose *1253 choice controls. We conclude that, in this case, the will of the School District must give way to the will of the people of Washington.
Under the plain meaning of section 49.60.400, as the Washington Supreme Court would interpret it, the racial tiebreaker constitutes preferential treatment of some students over others on the basis of race. Nothing in the Washington Constitution or federal law requires a different reading; indeed, Supreme Court jurisprudence on racial preferences in educational admissions is entirely consistent with this conclusion.
Accordingly, the decision of the district court must be REVERSED.
GRABER, Circuit Judge, specially concurring.
I concur specially because the racial tiebreaker that Seattle School District No. 1 uses to assign some public high school students to desirable schools plainly "grant[s] preferential treatment" to those students on the basis of their race, in violation of Initiative 200, which is codified as Washington Revised Code § 49.60.400 ("I-200").[1] Nothing in the United States Constitution or the Washington Constitution forbids the citizens of Washington from enacting a law like I-200 or requires that the law be interpreted to allow a racial tiebreaker in the circumstances presented here. I am aware of no relevant case constitutionally requiring a racial tie-breaker in the absence of de jure school segregation and in the absence of any affirmative act on the part of a school district to create school segregation.[2] To the extent that racial segregation exists in Seattle's high schools, as the majority explains, it results from general residential patterns only.
I write separately because, in my view, the majority errs in two fundamental ways when it discusses federal law as an aid to interpreting I-200. First, in these circumstances the Washington Supreme Court would not turn to federal law for interpretive guidance; this fact makes the discussion of federal law surplusage. Second, the majority reads federal precedent too narrowly.
A. The Washington Supreme Court Would Not Use Federal Precedent Here.
Our task is to interpret I-200 as we believe the Washington Supreme Court would. NLRB v. Calkins, 187 F.3d 1080, 1089 (9th Cir.1999). In construing a state statute, that court generally limits its reliance on federal law to those instances in which the two statutes are worded in essentially the same way. The portion of I-200 that is significant here has no analogue in federal law, so there is no federal case construing a substantially similar provision.
The genesis of this limiting principle appears to be Black Ball Freight Service, Inc. v. Washington Utilities & 1254 Transportation *1254 Commission, 74 Wash.2d 871, 447 P.2d 597 (1968), which concerned the regulation of
motor carriers. The Washington Supreme Court noted there that "[t]he statute, as amended, is substantially the same as the federal statute appertaining to the issuing of permits by the Interstate Commerce Commission ... to interstate motor carrier applicants. 49 U.S.C.A., § 307 (1963)." Id. at 599 (emphasis added). The court then turned to federal cases decided under the parallel provision to the extent that it considered them to be "cogent." Id. To the same effect, see Drinkwitz v. Alliant Techsystems, Inc., 140 Wash.2d 291, 996 P.2d 582, 589 (2000); Inland Empire Distribution Sys., Inc. v. Utils. & Transp. Comm'n, 112 Wash.2d 278, 770 P.2d 624, 627 (1989).
The Washington Supreme Court expressed this limitation again in Bravo v. Dolsen Cos., 125 Wash.2d 745, 888 P.2d 147 (1995), a case involving the meaning of employees' "concerted activity" in a labor law context. The supreme court noted: "Although federal authority is not controlling in interpreting state statutes, it can be persuasive where the texts of both federal and state laws are similar." Id. at 153; see also Pulcino v. Fed. Express Corp., 141 Wash.2d 629, 9 P.3d 787, 799 (2000) (stating that, because "the language of the [National

Labor Relations Act] is very similar to the [state statutory] language here," the court "considers persuasive the federal cases interpreting" the NLRA).

This requirement of substantially similar text has carried over to the anti-discrimination context as well. In Roberts v. Atlantic Richfield Co., 88 Wash.2d 887, 568 P.2d 764, 767-68 (1977), the court noted the similarity of the federal and state statutory provisions before turning for guidance to federal cases. More recently and more explicitly, the Washington Supreme Court applied the requirement of textual similarity in Farnam v. CRISTA Ministries, 116 Wash.2d 659, 807 P.2d 830 (1991). There, the court held that, "because RCW 49.60 substantially parallels the federal law against discrimination, Title 7 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., Washington courts have looked to the interpretation of the federal law in construing RCW 49.60." Id. at 838 (footnote omitted). Before turning to the federal cases, the court quoted the "parallel" federal statutory text. Id. at 838 n. 6; see also Ellis v. City of Seattle, 142 Wash.2d 450, 13 P.3d 1065, 1071 (2001) (stating that the Washington whistleblower statute "has an analog in federal antidiscrimination law, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a)," before citing a federal case interpreting that analogous federal statute).

Perhaps the most important case for present purposes is Marquis v. City of Spokane, 130 Wash.2d 97, 922 P.2d 43 (1996). In that case the question was whether the anti-discrimination provisions of section 49.60 apply to independent contractors. The court began by acknowledging that, "[i]n construing the law against discrimination, we have sometimes looked for guidance to cases interpreting equivalent federal law. Xieng v. Peoples Nat'l Bank, 120 Wash.2d 512, 518, 844 P.2d 389 (1993)." Marquis, 922 P.2d at 50. Nonetheless the Washington Supreme Court went on to reject the argument of the City of Spokane that urged the court "to adopt the reasoning of federal cases interpreting Title VII of the federal civil rights act." Id. The court rejected reliance on federal cases because "[t]he language of our statute's definition section [defining "employee"] differs from that of Title VII." Id. Additionally, the state statute contained a provision that the federal statute did not:

1255

While Title VII of the Civil Rights Act of 1964 is similar to RCW 49.60.180, the provision delineating unfair practices in employment, there is no provision in the *1255 federal law which sets forth the equivalent of the broad language of RCW 49.60.030(1) and there is no statutory provision requiring liberal construction in order to accomplish the purposes of the act. Federal cases interpreting Title VII are thus not helpful in determining the scope of RCW 49.60.030(1).

Id. (citation omitted). Thus, the rule in Washington is that the interpretation of federal anti-discrimination laws is not persuasive when the state provision "is significantly different from corresponding federal law." Brown v. Scott Paper Worldwide Co., 143 Wash.2d 349, 20 P.3d 921, 926 (2001).

To summarize, the Washington Supreme Court's reliance on federal cases to construe state statutes is limited to situations in which the statutory text of the two parallel provisions is identical or substantially similar. That situation does not exist here with respect to the key portion of I-200.

Moreover, to the extent that the foregoing cases rely on a presumption that the Washington legislature consciously intends parallelism when it enacts a statute modeled on federal law, that presumption does not apply to initiatives. Instead, the interpretation of a voter initiative starts with a different premise: its text means what an average informed lay voter would think it means. Amalgamated Transit Union Local 587 v. State, 142 Wash.2d 183, 11 P.3d 762, 780 (2001); Senate Republican Campaign Comm. v. Pub. Disclosure Comm'n, 133 Wash.2d 229, 943 P.2d 1358, 1365 (1997). An average informed lay voter would not look to the intricacies of federal law when evaluating the meaning of the phrase "grant preferential treatment."

B. The Majority's Reliance on Bakke is Misplaced.

The majority suggests that Regents of University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), "lends support to the notion that the racial tiebreaker constitutes a preference, and consequentially, that it violates Washington law[I-200]." (Maj. op. at 1252.) Even assuming that federal cases such as Bakke bear on the meaning of I-200, the majority's analysis of Bakke is incomplete in three ways.

First, although the majority quotes extensively from Justice Powell's opinion, it takes his statements out of context. Justice Powell did not conclude that the University of California's admissions policy violated federal law simply because it granted a "preference" to minority students. Instead, he found the university's use of racial classifications impermissible only after engaging in a fact-driven analysis of the nature of the racial preference and the purposes served by it. Bakke, 438 U.S. at 299, 305, 98 S.Ct. 2733; see also Smith v. Univ. of Wash. Law Sch., 233 F.3d 1188, 1197 (9th Cir.2000), cert. denied, 532 U.S. 1051, 121 S.Ct. 2192, 149 L.Ed.2d 1024 (2001). Justice Powell's statements have meaning, therefore, only in the context of a certain type of racial preference and a certain rationale offered to justify it.
By contrast, our analysis of the school district's assignment plan begins and ends with our assessment that it "grant[s] preferential treatment to" certain students "on the basis of race" within the plain meaning of I-200. Wash. Rev.Code § 49.60.400. Because both the specific nature of the racial preference and the purposes served by it are irrelevant to the question whether the preference violates the plain text of Washington law, nothing in Justice Powell's opinion can aid us in evaluating the meaning of the term "preferential treatment" in I-200.
1256 Second, to the extent that the majority intends to suggest that federal law disallows *1256 all uses of racial classifications in educational admissions decisions, it is inconsistent with Bakke and with Ninth Circuit precedent. Justice Powell's opinion in Bakke did not hold that all racial preferences designed to further any purpose are impermissible but, instead, held only that some types of racial preferences are unlawful when employed to further some purposes. Bakke, 438 U.S. at 305-20, 98 S.Ct. 2733. Thus, although Justice Powell concluded that the University of California's admissions policy violated federal law, he noted explicitly that other race-conscious policies still would be permissible. Id. at 311-12, 98 S.Ct. 2733 ("[A]ttainment of a diverse student body ... clearly is a constitutionally permissible goal for an institution of higher education."); id. at 317, 98 S.Ct. 2733 (noting that "race or ethnic background may be deemed a `plus' in a particular applicant's file [when] it does not insulate the individual from comparison with all other candidates for the available seats"); id. at 320, 98 S.Ct. 2733 ("[T]he State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin.").
Similarly, this court has held that race may be considered in the context of educational admissions decisions. For example, in Smith we held that "the Fourteenth Amendment permits University admissions programs which consider race for other than remedial purposes, and educational diversity is a compelling governmental interest that meets the demands of strict scrutiny of race-conscious measures." Smith, 233 F.3d at 1201. In arriving at that holding, we interpreted Bakke to permit the use of some racial classifications in the context of admissions decisions:
The district court denied Smith's partial summary judgment motion because it decided that under Supreme Court precedent race could be used as a factor in educational admissions decisions, even where that was not done for remedial purposes....
There can be no doubt that the district court's decision faithfully followed Justice Powell's opinion in [Bakke].
Id. at 1196.[3] Likewise, in Hunter ex rel. Brandt v. Regents of University of California, 190 F.3d 1061, 1063 (9th Cir.1999), we held that achieving diversity and remedying past discrimination are not the only compelling interests that can justify racial classifications under federal law: "California had a compelling state interest in operating a research-oriented elementary school dedicated to improving the quality of education in urban public schools...."
Third, to the extent that the majority suggests that the school district's assignment plan is impermissible simply because it shares some features in common with the university's admissions policy in Bakke, it oversimplifies Justice Powell's analysis. The form of a racial classification alone does not make it impermissible under federal law. To the contrary, Bakke requires a weighing of both the form of the classification and the purposes served by 1257 it. Accordingly, any type of racial classification, *1257 including the one employed by the school district here, may be consistent with federal law so long as it is the most narrowly tailored means to serve a particular compelling government interest, an issue that we need not and do not decide here.

The majority's desire to respond to the district court's reliance on federal law to interpret I-200 is understandable. In my view, however, the district court's error was in using federal cases to interpret a state statute in the first place, when the key portion of that statute has no federal counterpart. We need not consider whether the district court read those cases correctly.
For the foregoing reasons, I concur in the result.
ORDER GRANTING INJUNCTION
Appellant's motion for an injunction pending the filing and disposition of any petition for rehearing or rehearing en banc is GRANTED. The Appellees are hereby enjoined from using the racial tiebreaker in making high school assignments pending further order of this court.
The motion for immediate issuance of the mandate is DENIED.
[*] The Honorable Thomas M. Reavley, Senior United States Circuit Judge for the Fifth Circuit, sitting by designation.
[1] For example, Ballard High School offers a unique "Biotech Academy." Ballard describes the Biotech program as "[a] specialized learning program that brings together science, mathematics, and language arts to prepare students for advanced study and a career in the biosciences." See Ballard Bio-technology Program Web Page (visited Mar. 6, 2002). In fact, the program has its own separate admissions procedure, with required prerequisite classes. Admission to the program does not, however, guarantee admission to Ballard 0907 which is governed by the School District's open enrollment plan.
[2] Oversubscription was not, it appears, tied to geographic location. The oversubscribed schools included three high schools north of downtown (Ballard, Nathan Hale, and Roosevelt) and two high schools south of downtown (Garfield and Franklin). The undersubscribed schools included one north of downtown (Ingraham), three south of downtown (Chief Sealth, Cleveland, and Rainier Beach), and one due west of downtown (West Seattle).
[3] The acceptable deviation is presently set at 15% (meaning that a school can have as many as 55% white students, or as few as 25% white students, and still be racially "balanced").
[4] At the present time, three of the five oversubscribed schools are integration positive: Franklin, Ballard, and Nathan Hale. Accordingly, only these three schools use the racial tiebreaker. Moreover, under the current version of the plan, the integration tiebreaker is only used in determining the makeup of entering Ninth grade classes; the tiebreaker is not applied to students wishing to enter a high school in the Tenth, Eleventh, or Twelfth grades (e.g., transfer students).
[5] The voter initiative is a species of legislative power reserved to the people of Washington under the Washington Constitution. When a voter initiative receives a majority of votes in a general election, it shares the status of an act passed by the legislature. See Wash. Const. art. II, § 1(a) ("The legislative authority of the state of Washington shall be vested in the legislature, consisting of a senate and house of representatives, which shall be called the legislature of the state of Washington, but the people reserve to themselves the power to propose bills, laws, and to enact or reject the same at the polls, independent of the legislature....").
Like legislatively enacted laws, voter initiatives are subordinate to the Washington Constitution. See Gerberding v. Munro, 134 Wash.2d 188, 949 P.2d 1366, 1370 (1998) ("[T]he people in their legislative capacity remain subject to the mandates of the Constitution."). Thus, like legislative enactments, voter initiatives cannot amend the Washington Constitution. See id. at 1377 n. 11 ("[T]he initiative power may not be used to amend the Constitution.").
[6] The School District actually revised its admissions plan during the pendency of the lawsuit in an effort to reduce the hardships it imposed on students. For example, under the former version of the plan, the "acceptable deviation" range used to determine whether a school is "integration positive" was 10%, rather than 15%, and the

racial tiebreaker was applied to students applying for all grade levels rather than just to freshmen. Before the district court the Parents contended that both the original and revised plans violated both state and federal law.
[7] Neither party has suggested that we certify a question to the Washington Supreme Court. Indeed, in response to questions from the bench during oral argument, both parties urged us not to do so. Because we believe that the answer under Washington law is clear, we have not exercised our discretion to certify a question. See generally Broad v. Mannesmann Anlagenbau AG, 196 F.3d 1075 (9th Cir.1999); Wash. Rev.Code § 2.60.020.
[8] This approach contrasts with the approach to be used when interpreting a statute passed by the legislature. When interpreting a statute, if it uses a term having an established legal meaning, Washington courts presume that the statutory term was intended to have that meaning. See, e.g., Cowles Publ'g Co. v. State Patrol, 109 Wash.2d 712, 748 P.2d 597, 602 (1988) ("Inasmuch as the statute contains no definition of the term, there is a presumption that the legislature intended the right of privacy to mean what it meant at common law.").
[9] Under this approach, the School District's use of the racial tiebreaker may well also constitute "discriminat[ion] against" students on the basis of race. "[D]iscriminat[ion]" means something like, "[t]o make distinctions on the basis of class or category without regard to individual merit; show preference or prejudice: was accused of discriminating against women; discriminated in favor of his cronies." The American Heritage Dictionary of the English Language, Online Edition (4th ed.2000) (visited Mar. 6, 2002). We are mindful of the canon of statutory construction that teaches that "courts do not construe different terms within a statute to embody the same meaning." Sutherland Statutory Construction § 46.06, at 193-94 (6th ed.2000). But we do not understand that canon to mean that there cannot be overlap between words in a statute, such that in some cases, both apply. See, e.g., United States v. Hill, 79 F.3d 1477, 1482-83 (6th Cir.1996) (construing two terms joined by disjunctive "or"; recognizing that "[i]t is a basic principle of statutory construction that terms joined by the disjunctive `or' must have different meanings because otherwise the statute or provision would be redundant" but observing, "[n]onetheless, ... that there is considerable overlap between the two terms"). Because the School District's use of the tiebreaker clearly involves granting a race-based preference, however, we ultimately need not decide whether it also constitutes race-based discrimination.
[10] The district court may not have agreed entirely, though, with the conclusion that as a matter of pure semantics section 49,60,400 invalidates the School District's use of the racial tiebreaker. Despite the foregoing passage, the district court nonetheless was persuaded by this argument in concluding that the racial tiebreaker is not a preference:
[A] constitutionally 0907 infirm contract procurement or university admissions policy grants preference only to nonwhites. The program at issue here falls indiscriminately on whites and nonwhites alike, ensuring a racially integrated system for the benefit of the school district as a whole. Even while the program allows minority students access to Ballard and Hale, Seattle's popular predominantly white schools, it also allows white students access to Franklin, the city's popular predominantly minority school. It is in this sense, too, that the program is not a "preference."
Parents Involved, 137 F.Supp.2d at 1231.
Regrettably, this logic loses sight of the forest for the trees. As the U.S. Supreme Court has explained in a related context, "[d]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality." Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943). Racial distinctions "threaten to stigmatize individuals by reason of their membership in a racial group and to incite racial hostility." Shaw v. Reno, 509 U.S. 630, 643, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993).
If a program that grants a preference to members of one race is problematic, the School District's use of the racial tiebreaker, which grants preferences to both whites (because they are white) and non-whites (because they are not white) at different times, is doubly so; the two wrongs do not, as the district court reasoned, make a right. Cf. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 289-90, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (plurality opinion) ("The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.").

[11] Regrettably, the district court did not recognize that it could (and indeed, under the statute, it should) have avoided the difficulties of construing the statute to meet what it thought the Washington and U.S. Constitutions required. Indeed, under the terms of the statute itself, the court ought to have construed the statute first. Only then should it have determined whether the statute conflicted with these higher laws and, if so, enforced it only to the extent permitted by those laws. See Wash. Rev.Code § 49.60.400(9) ("If any part or parts of this section are found to be in conflict with federal law, the United States Constitution, or the Washington state Constitution, the section shall be implemented to the maximum extent that federal law, the United States Constitution, and the Washington state Constitution permit."). The district court's analysis did not take into account this subsection.
[12] It appears that any difference between "remedying de facto segregation" and "achieving racial diversity" is, at least for purposes of our analysis, one of semantics. Racially concentrated housing patterns would no doubt lead to racially concentrated schools if school assignment were based only on the proximity of a student's residence to a given high school; that is to say, in the absence of a "remedy" for de facto segregation, schools would become "racially imbalanced." See also Brewer v. West Irondequoit Cent. Sch. Dist., 212 F.3d 738, 756 (2d Cir.2000) (Miner, J., dissenting) (concluding that "whether the interest is in developing a more lasting integration in the face of de facto segregation, in promoting racial diversity, or in reducing racial isolation, ... all are similar").
[13] The other Washington case cited by the district court, Dawson v. Troxel, 17 Wash.App. 129, 561 P.2d 694 (1977), is not to the contrary. The district court cited this decision 0907 twice 0907 for the proposition that "`in some circumstances a racial criterion [m]ay be used 0907 and indeed in some circumstances [m]ust be used 0907 by public educational institutions in bringing about racial balance.'" Id. at 696 (quoting DeFunis v. Odegaard, 82 Wash.2d 11, 507 P.2d 1169, 1179 (1973)).
The meaning of this quotation is opaque. First, the quote is taken out of context; the very next sentence of DeFunis explains the quote: "School systems which were formerly segregated de jure now have an affirmative duty to remedy racial imbalance." DeFunis, 507 P.2d at 1179 (footnote omitted). Nothing in Dawson (or DeFunis) indicates that schools have a duty to remedy racial imbalance in the absence of prior de jure segregation.
Moreover, Dawson was not discussing whether the Washington Constitution requires racially balanced educational institutions. Instead, the quote comes from a part of the opinion in which the Court rejected the plaintiffs' challenge to a race-based transfer system under the Equal Protection Clause of the United States Constitution. Properly understood, then, the quote just explains that under the federal Equal Protection Clause, sometimes schools may (as the Washington Supreme Court cases discussed above confirm), and sometimes they must (e.g., in cases of prior de jure segregation), use a racial criterion to achieve racial balancing.
Finally, even if Dawson held that the Washington Constitution requires racially balanced schools 0907 which it assuredly does not 0907 this court would not have to follow it; it is inconsistent with the Washington Supreme Court cases discussed above and thus, because it is an intermediate appellate court decision, it is not controlling.
[14] Certainly federal law does not control this state law question, and the district court did not conclude otherwise. But as the district court recognized, in this highly contentious area, where federal and state laws overlap, federal cases discussing racial preferences and discrimination certainly provide persuasive authority for the proper construction of section 49.60.400. See Parents Involved, 137 F.Supp.2d at 1229. Indeed, the Washington Supreme Court has recognized that "Washington courts have looked to the interpretation of the federal law in construing [Washington Revised Code chapter] 49.60." Farnam v. CRISTA Ministries, 116 Wash.2d 659, 807 P.2d 830, 838 (1991) (collecting cases).
[15] Prop. 209 provided, in relevant part, that "[t]he state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." Coalition, 122 F.3d at 696.
[16] The concurrence chides us that federal law, and Bakke specifically, is irrelevant to our analysis because "the Washington Supreme Court's reliance on federal cases to construe state statutes is limited to situations in which the statutory text of the two parallel provisions is identical or substantially similar." Concurrence at 5695. Respectfully, we agree with the theory, but not with the application; we think the concurrence construes Washington precedent too narrowly.

In our view, section 49.60.400(1) is, in fact, "substantially similar" to the statute analyzed in Bakke. We must remember that although Bakke dealt with the Equal Protection Clause, it did so only after concluding that the Clause and 42 U.S.C. § 2000d were coterminous. Bakke, 438 U.S. at 287, 98 S.Ct. 2733. And that statute is remarkably similar to section 49.60.400(1). Compare 42 U.S.C. § 2000d ("No person in the United States shall, on the ground of race, color, or national origin, ... be subjected to discrimination under any program or activity receiving Federal financial assistance."), and Bakke, 438 U.S. at 307, 98 S.Ct. 2733 ("Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake.") (emphasis added), with Wash. Rev.Code § 49.60.400(1) ("The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, ... color, ... or national origin in the operation of [various state activities].").
As the phrase "substantially similar" tends to indicate, the Washington courts have found federal cases helpful in interpreting state law where the federal and state provisions are not exactly the same. See, e.g., Farnam, 807 P.2d at 838-39 (using federal cases to inform the analysis of a provision that exempted employees of "religious organizations" from state discrimination law, even though the wording of the state and federal provisions differed significantly, and even though the state exemption did not 0907 as the federal exemption did 0907 apply only to employees' actions "connected with the carrying on by such corporation, association, educational institution, or society of its activities"). Further, the state and federal statutes in this case are directed to the same end: preventing the government (or those receiving funds from the government) from making distinctions based on race. See, e.g., Roberts v. Atl. Richfield Co., 88 Wash.2d 887, 568 P.2d 764, 767-68 (1977) (concluding that cases interpreting a series of different federal statutes could inform the analysis of a single Washington statute not because the language of the statutes was the same, but because "[f]ederal statutes, ... like our own[,] seek to eliminate such discrimination"). Thus, we believe Justice Powell's discussion in Bakke of discrimination and preferences under 42 U.S.C. § 2000d to be highly relevant to the meaning of "preference" for purposes of Wash. Rev.Code § 49.60.400(1) 0907 especially given this Court's recent pledge of continued allegiance to that opinion. See Smith, 233 F.3d at 1201.
[17] Of course, the School District's use of the racial tiebreaker differs in operation from the program at issue in Bakke. Under the racial tiebreaker, "minority" students are admitted preferentially until some pre-determined ratio is met 0907 that is, "majority" students are effectively barred until the ratio is attained, after which time "majority" students and "minority" students are admitted with equal preference based on distance. Under the Bakke program, in contrast, the reserved seats are blocked out a priori. This is, however, a distinction without a difference. Whether "majority" students are foreclosed from slots at the end because there is no more room, or at the beginning of the process, they are in either case excluded.
[1] I-200 provides, in relevant part: "The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." Wash. Rev.Code § 49.60.400(1) (emphasis added).
[2] We are not called on to decide the different question whether the federal constitution forbids a school district from using a racial tiebreaker in these circumstances. We need not answer that question because, as a matter of state law, the racial tiebreaker is impermissible. See Clark v. City of Lakewood, 259 F.3d 996, 1016 n. 12 (9th Cir.2001) ("[W]e look first to state law to resolve this issue, in accordance with our longstanding principle that courts should avoid making federal constitutional decisions unless and until necessary.").
[3] Our opinion in Smith also suggests that I-200 is to be interpreted separately from federal law. We held that "a properly designed and operated race-conscious admissions program" at a public university would not violate federal statutory or constitutional law as interpreted in Bakke. Smith, 233 F.3d at 1201. However, we also held that compliance with federal law was no help to the university, because "it is bound by I-200, which precludes it from granting `preferential treatment' to any individual `on the basis of race.'" Id. In other words, we recognized that the meaning of I-200 does not depend on federal law but, instead, places different and greater limits on the state's ability to consider race in making school admissions decisions.

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 294 F.3d 1085 (2002)
PARENTS INVOLVED IN COMMUNITY SCHOOLS, a Washington nonprofit corporation, Plaintiff-Counter-Defendant-Appellant, v.
SEATTLE SCHOOL DISTRICT, NO. 1, a political subdivision of the State of Washington; Joseph Olchefske, in his official capacity as superintendent; Barbara Schaad-Lamphere, in her official capacity as President of the Board of Directors of Seattle Public Schools;
Donald Neilson, in his official capacity as Vice President of the Board of Directors of Seattle Public Schools; Steven Brown; Jan Kumasaka; Michael Preston; Nancy Waldman,
in their official capacities as members of the board of Directors, Defendants-CounterClaimants-Appellees.
No. 01-35450.
United States Court of Appeals, Ninth Circuit.
Filed June 17, 2002.
1086 *1086 Before: REAVLEY,[*] O'SCANNLAIN, and GRABER, Circuit Judges.
ORDER
We certify to the Washington Supreme Court the question set forth in Part III of this order.
Further proceedings in this court are stayed pending receipt of the answer to the certified question. This case is withdrawn from submission until further order of this court or an order declining to accept the certified question. If the Washington Supreme Court accepts the certified question, the parties shall file a joint report six months after date of acceptance and every six months thereafter, advising us of the status of the proceeding.
I
At oral argument before this court, the parties unanimously requested that we not certify this state law question to the Washington Supreme Court, but instead, decide the issue expediently so that school assignments for the 2002-03 school year could be made accordingly. We did so, and issued an opinion. See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 285 F.3d 1236 (9th Cir.2002); see also id. at 1243 n. 7. ("Neither party has suggested that we certify a question to the Washington Supreme Court. Indeed, in response to questions from the bench during oral argument, both parties urged us not to do so. Because we believe that the answer under Washington law is clear, we have not exercised our discretion to certify a question.").
After we rendered our decision, rehearing and rehearing en banc were sought. It has become clear that our court cannot provide a definitive answer before assignments must be made for the 2002-03 year, and therefore, we believe that our sole reason for not certifying this question to the Washington Supreme Court has dissolved. Moreover, we note that we may exercise our discretion to certify the question "upon [our] own motion." Wash. Rev. Code § 2.60.030(1). Indeed, even when we find the plain language of state law dispositive, see Parents Involved, 285 F.3d at 1243 n. 7, we have an obligation to consider whether novel state-law questions should be certified0907and we have been admonished in the past for failing to do so. Arizonans for Official English v. Arizona, 520 U.S. 43, 62, 76-79, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). Consequently, after due consideration of the arguments raised in the petition for rehearing and the response thereto, we have decided that, in the present circumstances, certification is the most prudent course. Accordingly, we are filing today a separate order granting the petition for rehearing, withdrawing our prior opinion, and vacating the injunction issued under that opinion, see Parents Involved, 2002 WL 841345 (9th Cir. Apr. 26, 2002).

Pursuant to Washington Revised Code § 2.60.020, a panel of the United States Court of Appeals for the Ninth Circuit, before which this appeal is pending, certifies to the Washington Supreme Court a question of law 1087 concerning the proper interpretation *1087 of Washington Revised Code § 49.60.400. No published decision of either the Washington Supreme Court or the Washington appellate courts has yet construed this statute, and the answer to the certified question "is necessary ... to dispose of" this appeal. Wash. Rev.Code § 2.60.020. We respectfully request that the Washington Supreme Court answer the certified question presented below. Our phrasing of the issue is not meant to restrict the court's consideration of the case; "[w]e acknowledge that the Washington Supreme Court may, in its discretion, reformulate the question[]." Broad v. Mannesmann Anlagenbau AG, 196 F.3d 1075, 1076 (9th Cir.1999). If the Washington Supreme Court declines certification, we will resolve the issue according to our perception of Washington law.
II
Parents Involved in Community Schools (the "Parents"), a Washington nonprofit corporation, is deemed the petitioner in this request because the Parents appeal the district court's ruling on this issue. The caption of the case is:
PARENTS INVOLVED IN COMMUNITY SCHOOLS, a Washington nonprofit corporation, Plaintiff-counterdefendant-Appellant,
v.
SEATTLE SCHOOL DISTRICT, NO. 1, a political subdivision of the State of Washington; JOSEPH OLCHEFSKE, in his official capacity as superintendent; BARBARA SCHAAD-LAMPHERE, in her official capacity as President of the Board of Directors of Seattle Public Schools; DONALD NEILSON, in his official capacity as Vice President of the Board of Directors of Seattle Public Schools; STEVEN BROWN; JAN KUMASAKA; MICHAEL PRESTON; NANCY WALDMAN, in their official capacities as members of the board of Directors, Defendants-counterclaimants-Appellees.
* * *
The names and addresses of counsel for the parties are as follows:
Daniel B. Ritter & Harry J.F. Korrell (argued), Davis Wright Tremaine, LLP, Seattle, WA, for Plaintiff-counterdefendant-Appellant.
Michael Madden & Carol Sue Janes, Bennett, Bigelow & Leedom, P.S., Seattle, WA; Mark S. Green, Office of the General Counsel, Seattle School District No. 1, Seattle, WA, for Defendants-counter-claimants-Appellees.
Sharon L. Browne, Pacific Legal Foundation, Sacramento, California; Russell C. Brooks, Pacific Legal Foundation, Bellevue, WA, for amici curiae American Civil Rights Institute, American Civil Rights Union, Center for Equal Opportunity, and Pacific Legal Foundation.
Paul J. Lawrence, Preston, Gates & Ellis LLP, Seattle, WA, for amicus curiae American Civil Liberties Union.
III
The question of law to be answered is:
By using a racial tiebreaker to determine high school assignments, does Seattle School District Number 1 "discriminate against, or grant preferential treatment to, any individual or group on the basis of race, ... color, ethnicity, or national origin in the operation of ... public education" in violation of Initiative 200 (I-200), codified at Washington Revised Code § 49.60.400?

IV
The statement of facts is as follows:
Based on the parties' submissions, it appears that approximately 70% of the residents of Seattle, Washington are 1088 white, *1088 while approximately 30% are non-white. This racial diversity is reflected in Seattle's public schools,
where the percentages are more evenly balanced: the students are approximately 40% white and 60% nonwhite.
The racial distribution of the community is not, however, homogeneous. It appears that more white students live in the northern part of Seattle, and in areas close to the waterfront in all parts of the city, than in the southern part of the city. Specifically, approximately 66% of white students live north of downtown. In contrast, approximately 77% of non-white students live south of downtown0907including 84% of all African-American students, 74% of all Asian students, and 65% of all Hispanic students.
A
Seattle School District Number 1 (the "School District"), which is charged with educating the children of this metropolis, operates ten public high schools: Ballard, Chief Sealth, Cleveland, Franklin, Garfield, Ingraham, Nathan Hale, Rainier Beach, Roosevelt, and West Seattle. Four of these high schools (Ballard, Ingraham, Nathan Hale, and Roosevelt) are located north of downtown Seattle; of the remaining six, five (Chief Sealth, Cleveland, Franklin, Garfield, and Rainier Beach) are located south of downtown, and one (West Seattle) is located directly west of downtown.
Seattle's public high schools vary widely in quality, as measured by such factors as standardized test scores, numbers of college preparatory and Advanced Placement (AP) courses offered, percentage of students taking AP courses and Scholastic Aptitude Tests (SATs), percentage of graduates who attend college, Seattle Times college-preparedness rankings, University of Washington rankings, and disciplinary statistics. Moreover, some of the schools offer programs or opportunities not offered in other schools.[1]
The School District has never been segregated by law ("de jure" segregated). However, due to Seattle's racial diversity and its racially imbalanced housing patterns, if Seattle's children were simply assigned to the high schools nearest their homes, the high schools would become segregated in fact ("de facto" segregated). As part of its continuing effort to prevent de facto segregation and to promote racial diversity in its high schools, instead of assigning students to the high schools nearest their homes, the School District has adopted an open choice assignment plan, pursuant to which each student may choose to attend any of the ten high schools in the city, so long is there is room available in that school.
In its current incarnation, the School District's open choice plan provides for a multi-step assignment process. Under the plan, each student is first asked to list the high schools he would like to attend, in order of preference. If a student is not admitted to his first-choice school because it is full, the School District attempts to assign him to his second-choice school, and so on. If a student is not admitted to any of his chosen schools, he receives a mandatory assignment to a school with available space.
1089 *1089 Not surprisingly, under this system, a significant problem arises when a school becomes "oversubscribed"0907i.e., more students want to attend that school than there are spaces. For the academic year 2000-01, five of the School District's high schools were oversubscribed, and five were undersubscribed.[2] The magnitude of oversubscription underscores its problematic nature: for example, in the academic year 2000-01, approximately 82% of students selected one of the oversubscribed high schools as their first choice, while only about 18% picked one of the undersubscribed high schools as their first choice.
To solve the problem of oversubscription, the School District's assignment plan uses a series of four "tiebreakers" to determine which students will be admitted to each oversubscribed school.

1
The first tiebreaker gives preference to students with siblings already attending the school requested. This tiebreaker accounts for somewhere between 15% and 20% of high school assignments.
2
If after applying the first tiebreaker a school is still oversubscribed, the School District next proceeds to a second tiebreaker, which is based entirely on race. For purposes of the racial tiebreaker, students are deemed to be of the race specified in their registration materials, which ask parents to specify the student's race using codes provided on a form. Because registration must be completed in person by a parent, if a parent declines to specify a racial category, the School District assigns the student a category based on a visual inspection of the parent (and the student, if present) at registration. It is this racial tiebreaker that spawned this lawsuit.
The School District uses the racial tie-breaker in an attempt to "balance" the racial makeup of the various Seattle public high schools. Accordingly, if an oversubscribed school's population deviates from the overall racial makeup of Seattle's students (40% white and 60% non-white) by more than a set number of percentage points, then the School District designates the school "integration positive."[3] The racial tiebreaker is then applied when determining assignments to integration positive schools such that students whose race (i.e., white or non-white) will move the school closer to that ratio are given admission preference.[4] As presently in force this tiebreaker has a "thermostat"; the School District ceases to use the racial tiebreaker for the year at any school once use of 1090 the tiebreaker has brought the school into racial balance. All told, the racial tiebreaker *1090 determines about 10% of high school assignments.
3
Once all students of the preferred racial category are admitted to an oversubscribed high school, any remaining seats are allocated using a third tiebreaker: distance. Applicants are admitted in order of the distance they live from the school, with those who live closest to the school admitted first.
4
A fourth tiebreaker, a lottery, is rarely used in high school assignments because distances are calculated to one hundredth of a mile for purposes of the third tiebreaker.
B
The Parents describe themselves as "a nonprofit corporation formed by parents whose children have been or may be denied admission to the high schools of their choosing solely because of race." The Parents put forward four members as "examples" of the effects of the racial tiebreaker.
First, the Parents point to members Jill Kurfurst and Winnie Bachwitz. Each has a child who entered high school in the 2000-01 school year and plans to attend college. After reviewing test statistics, course offerings, extracurricular programs, college rankings, disciplinary statistics, and proximity, the Kurfurst and Bachwitz children applied for admission to Ballard, Roosevelt, and Nathan Hale High Schools. They chose Ballard first, partly because of its unique Biotech Academy. However, both children, while accepted into the program, were denied admission to Ballard because of their race and consequently were not allowed to enroll. They were also denied admission to Nathan Hale because of their race. Both were assigned to Ingraham High School.
When assignments were announced for the 2000-01 school year, the School District apparently did not run school buses to Ingraham from the neighborhoods where Kurfurst and Bachwitz lived. Consequently, attendance

at Ingraham would have required the children to take three Metro buses to get to school, resulting in a round-trip commute of over four hours. Both students hoped to participate in after-school activities; that would have required each of them to leave home at 5:30 a.m., return at 8:00 or 9:00 p.m., and on each trip to wait for three buses, often alone and in the dark. Little time would have remained for homework and family activities. These assignments being unacceptable to both families, they appealed, but without success. Ultimately, Kurfurst and Bachwitz decided to send their children to private schools.
Two other Parents, Rick Hack and John Miller, have children in Seattle public middle schools who expect to apply for high school admission for 2002-03, and will likely be affected by the racial tiebreaker.
C
The Parents commenced this legal action in July of 2000, challenging the School District's use of the racial tiebreaker for high school admissions as illegal under state and federal law. Specifically, the Parents alleged that by using race to decide who may attend the oversubscribed high schools, the School District discriminates and grants a preference on the basis of race0907thereby violating the Washington Civil Rights Act, Wash. Rev.Code § 49.60.400 (passed in 1998 as Voter Initiative 200, or I-200). The Parents further alleged that the racial tiebreaker violates both the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and the Civil Rights Act of 1964, 42 U.S.C. § 2000d.[5]
1091 The Parents and the School District both moved for summary judgment on all *1091 claims; neither contended that genuine issues of material fact precluded summary judgment. The court granted the School District's motion and denied the Parents' motion. In a published opinion dated April 6, 2001, the district court upheld the use of the racial tiebreaker under both state and federal law. See Parents Involved In Cmty. Schs. v. Seattle Sch. Dist. No. 1, 137 F.Supp.2d 1224 (W.D.Wash. 2001).
With respect to the state claim, the court emphasized its duty to "construe I 200, if possible, in a way that makes [that provision] consistent with the state and federal constitutions...." Id. at 1227. Because it read sections 1 and 2 of Article IX of the Washington Constitution as requiring school districts "to provide equal educational opportunity to students of all races, to limit racial isolation, and to provide a racially and ethnically diverse educational experience," id. at 1228, it reasoned that "applying I 200 to outlaw the school district's integration plan would render [it] unconstitutional," id. at 1227. It therefore interpreted the provision in such a way as to find it inapplicable to the School District's assignment plan. Id. at 1232.
The district court entered judgment for the School District in accordance with its opinion. This timely appeal followed.
V
We respectfully submit that the question presented in Part III requires certification for the following reasons:
The Parents contend, and the district court agreed, that "that nonwhite children given spots at Nathan Hale and Ballard, or white children given spots at Franklin, are being granted a `preference' in common parlance." Parents Involved, 137 F.Supp.2d at 1232. Nonetheless, the district court found that I 200 did not bar the district's use of the racial tiebreaker. It so concluded because, as the School District argued, "[t]he term `preference,' ... as used in the Washington Constitution and defined in state and federal law, and therefore necessarily as used in Initiative 200, has acquired a legally fixed meaning derived from dozens of years of race discrimination jurisprudence. Under that definition, the school board's program is not a preference." Id.[6]
As these competing arguments demonstrate, answering the question of state law presented in this case may well entail addressing several subsidiary issues that contain crucial elements of state law, for example:
0905 Should the term "preference" in I-200 be interpreted to have its ordinary lay meaning, in accordance with Washington cases holding that the average voter is the touchstone for the

construction of an initiative, or are state law and/or federal law to be relevant in interpreting I-200? If state law is relevant, are California cases construing Proposition 209, the wording of which is identical to I 200, relevant?

1092

0905 Is the meaning of I-200 clear, or is the text ambiguous, making consideration *1092 of voter's pamphlet material relevant? If it is pertinent to the analysis, what factors should be used to evaluate this material?

0905 Does article 9, section 1, of the Washington Constitution, or article 9, section 2, of the Washington Constitution, require that measures be taken to mitigate de facto segregation, or only permit it? In any event, is the Seattle School District's use of the racial tiebreaker required, permitted, or otherwise under the Washington Constitution and I-200?

Because of the sensitivity and complexity of these state-law issues, and because of their significant policy implications for Washington courts in other cases as well as in this one, we believe that the Washington Supreme Court, which has not yet construed I-200, is better qualified to answer the certified question in the first instance.

Moreover, the Washington Supreme Court's authoritative answer is "necessary .... in order to dispose of [this] proceeding." Wash. Rev.Code § 2.60.020. In addition to raising the state law claim under I 200, the Parents have also asserted that the School District's use of the racial tiebreaker violates the Fourteenth Amendment's Equal Protection Clause. Our precedents make clear, however, that we must "look first to state law to resolve this [case], in accordance with our long-standing principle that courts should avoid making federal constitutional decisions unless and until necessary." Clark v. City of Lakewood, 259 F.3d 996, 1016 n. 12 (9th Cir.2001). Thus, the state law question herein certified must be answered in order to dispose of this appeal.

VI

The Clerk of Court is hereby directed to transmit forthwith to the Washington Supreme Court, under official seal of the Ninth Circuit, a copy of this order and request for certification and all relevant briefs and excerpts of record pursuant to Washington Revised Code §§ 2.60.010 and 2.60.030.
IT IS SO ORDERED.

[*] The Honorable Thomas M. Reavley, Senior United States Circuit Judge for the Fifth Circuit, sitting by designation.
[1] For example, Ballard High School offers a unique "Biotech Academy." Ballard describes the Biotech program as "[a] specialized learning program that brings together science, mathematics, and language arts to prepare students for advanced study and a career in the bio-sciences." See Ballard Biotechnology Program Web Page (visited May 31, 2002). In fact, the program has its own separate admissions procedure, with required prerequisite classes. Admission to the program does not, however, guarantee admission to Ballard 0907 which is governed by the School District's open enrollment plan.
[2] Oversubscription was not, it appears, tied to geographic location. The oversubscribed schools included three high schools north of downtown (Ballard, Nathan Hale, and Roosevelt) and two high schools south of downtown (Garfield and Franklin). The undersubscribed schools included one north of downtown (Ingraham), three south of downtown (Chief Sealth, Cleveland, and Rainier Beach), and one due west of downtown (West Seattle).
[3] The acceptable deviation is presently set at 15% (meaning that a school can have as many as 55% white students, or as few as 25% white students, and still be racially "balanced").
[4] At the present time, three of the five oversubscribed schools are integration positive: Franklin, Ballard, and Nathan Hale. Accordingly, only these three schools use the racial tiebreaker. Moreover, under the current version of the plan, the integration tiebreaker is only used in determining the makeup of entering Ninth grade classes; the tiebreaker is not applied to students wishing to enter a high school in the Tenth, Eleventh, or Twelfth grades (e.g., transfer students).

[5] The School District actually revised its admissions plan during the pendency of the lawsuit in an effort to reduce the hardships it imposed on students. For example, under the former version of the plan, the "acceptable deviation" range used to determine whether a school is "integration positive" was 10%, rather than 15%, and the racial tiebreaker was applied to students applying for all grade levels rather than just to freshmen. Before the district court the Parents contended that both the original and revised plans violated both state and federal law.
[6] Apparently, the district court reached the same conclusion with respect to whether the program constitutes "discrimination," as it upheld the program against I-200.
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 426 F.3d 1162 (2005)

PARENTS INVOLVED IN COMMUNITY SCHOOLS, a Washington non-profit corporation, Plaintiff-counter-defendant-Appellant, v.
SEATTLE SCHOOL DISTRICT, NO. 1, a political subdivision of the State of Washington; Joseph Olchefske, in his official capacity as superintendent; Barbara Schaad-Lamphere, in her official capacity as President of the Board of Directors of Seattle Public Schools;
Donald Neilson, in his official capacity as Vice President of the Board of Directors of Seattle Public Schools; Steven Brown; Jan Kumasaka; Michael Preston; Nancy Waldman,
in their official capacities as members of the board of Directors, Defendants-counterclaimants-Appellees.

1163

*1163 No. 01-35450.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 21, 2005. Filed October 20, 2005.

11645 *1164 *1165 Harry J.F. Korrell (argued) and Daniel B. Ritter, Davis Wright Tremaine LLP, Seattle, WA, for the plaintiff-counter-defendant/appellant.

Michael Madden (argued) and Carol Sue Janes, Bennett Bigelow & Leedom, P.S., Seattle, WA, and Mark S. Green, Office of the General Counsel, Seattle School District No. 1, Seattle, WA, for the defendants-counterclaimants/appellees.

Sharon L. Browne, Pacific Legal Foundation, Sacramento, CA, and Russell C. Brooks, Pacific Legal Foundation, Bellevue, WA, for the amici curiae Pacific Legal Foundation, American Civil Rights Institute, American Civil Rights Union and Center for Equal Opportunity in support of plaintiff-counter-defendant/appellant.

Paul J. Lawrence, Preston Gates & Ellis LLP, Seattle, WA, for the amicus curiae American Civil Liberties Union in support of defendants-counter-claimants/appellees.

Before: SCHROEDER, Chief Judge, PREGERSON, KOZINSKI, KLEINFELD, HAWKINS, W. FLETCHER, FISHER, TALLMAN, RAWLINSON, CALLAHAN and BEA, Circuit Judges.

Argued and Submitted En Banc June 21, 2005.

1166 *1166 Opinion by Judge FISHER; Concurrence by Judges KOZINSKI; Dissent by Judge BEA.

FISHER, Circuit Judge, with whom Chief Judge SCHROEDER and Judges PREGERSON, HAWKINS, W. FLETCHER and RAWLINSON join concurring; Judge KOZINSKI, concurring in the result.

This appeal requires us to consider whether the use of an integration tiebreaker in the open choice, noncompetitive, public high school assignment plan crafted by Seattle School District Number 1 (the "District") violates the federal Constitution's Equal Protection Clause. Our review is guided by the principles articulated in the Supreme Court's recent decisions regarding affirmative action in higher education, Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003), and Gratz v. Bollinger, 539 U.S. 244, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003), and the Court's directive that "[c]ontext matters when reviewing race-based governmental action under the Equal Protection Clause." Grutter, 539 U.S. at 327, 123 S.Ct. 2325. We conclude that the District has a compelling interest in securing the educational and social benefits of racial (and ethnic) diversity, and in ameliorating racial isolation or concentration in its high schools by ensuring that its assignments do not simply replicate Seattle's segregated housing patterns.[1] We also conclude that the District's Plan is narrowly tailored to meet the District's compelling interests.

I. Background[2]
A. Seattle Public Schools: A Historical Perspective
Seattle's historical struggle with the problem of racial isolation in its public school system provides the context for the District's implementation of the current challenged assignment plan. Seattle is a diverse community. Approximately 70 percent of its residents are white, and 30 percent are nonwhite. Seattle public school enrollment breaks down nearly inversely, with approximately 40 percent white and 60 percent nonwhite students. A majority of the District's white students live in neighborhoods north of downtown, the historically more affluent part of the city. A majority of the city's nonwhite students, including approximately 84 percent of all AfricanAmerican students, 74 percent of all Asian-American students, 65 percent of all Latino students and 51 percent of all Native-American students, live south of downtown.
The District operates 10 four-year public high schools. Four are located north of downtown 0907Ballard, Ingraham, Nathan Hale and Roosevelt; five are located south of downtown 0907Chief Sealth, Cleveland, Franklin, Garfield and Rainier Beach; one is located west of downtown0907West Seattle. For over 40 years, the District has made efforts to attain and maintain desegregated schools and avoid the racial isolation or concentration that would ensue if school assignments replicated Seattle's segregated housing patterns. Since the 1960s, while courts around the 1167 country *1167 ordered intransigent school districts to desegregate, Seattle's School Board voluntarily explored measures designed to end de facto segregation in the schools and provide all of the District's students with access to diverse and equal educational opportunities.
In the late 1950s and early 1960s, school assignments were made strictly on the basis of neighborhood.[3] In 1962, Garfield High School reported 64 percent minority enrollment and it accommodated 75 percent of all African-American students. Meanwhile, the eight high schools serving other major areas of the city remained more than 95 percent white.
The District responded to this imbalance, and racial tensions in the de facto segregated schools, in various ways. In the early 1960s, the District first experimented with small-scale exchange programs in which handfulls of students switched high schools for five-week periods. In 1963, expanding on this concept, the District implemented a "Voluntary Racial Transfer" program through which a student could transfer to any school with available space if the transfer would improve the racial balance at the receiving school. In the 1970s, the District increased its efforts again, this time adopting a desegregation plan in the middle schools that requested volunteers to transfer between minority- and majority-dominated neighborhood schools and called for mandatory transfers when the number of volunteers was insufficient, though this portion of the plan was never implemented. The District also took steps to desegregate Garfield High School by changing its educational program, improving its facilities and eliminating "special transfers" that had previously allowed white students to leave Garfield. Finally, for the 1977-78 school year, the District instituted a magnet-school program. According to the District's history:
While it appeared evident that the addition of magnet programs would not in itself desegregate the Seattle schools, there was supportive evidence that voluntary strategies, magnet and non-magnet, could be significant components of a more comprehensive desegregation plan.
History of Desegregation at 32.
By the 1977-78 school year, segregation had increased: Franklin was 78 percent minority, Rainier Beach 58 percent, Cleveland 76 percent and Garfield 65 percent. Other high schools ranged from 9 percent to 23 percent minority enrollment.
In the spring of 1977, the Seattle branch of the National Association for the Advancement of Colored People ("NAACP") filed a complaint with the United States Department of Education's Office of Civil Rights, alleging that Seattle's School Board had acted to further racial segregation in the city's schools. Several other organizations,

principally the American Civil Liberties Union ("ACLU"), formally threatened to file additional actions if the District failed to adopt a mandatory desegregation plan. When the District agreed to develop such a plan, the Office of Civil Rights concomitantly agreed to delay its investigation, and the ACLU agreed to delay filing a lawsuit.
During the summer of 1977, the District and community representatives reviewed five model plans. Ultimately, 1168 the District *1168 incorporated elements of each model into its final desegregation plan, adopted in December
1977 and known as the "Seattle Plan." The Seattle Plan divided the district into zones, within which majoritydominated elementary schools were paired with minority-dominated elementary schools to achieve desegregation. Mandatory high school assignments were linked to elementary school assignments, although various voluntary transfer options were available. With the Seattle Plan,
Seattle became the first major city to adopt a comprehensive desegregation program voluntarily without a court order. By doing so the District maintained local control over its desegregation plan and was able to adopt and implement a plan which in the eyes of the District best met the needs of Seattle students and the Seattle School District.
History of Desegregation at 36-37. Opponents of the Seattle Plan immediately passed a state initiative to block its implementation, but the Supreme Court ultimately declared the initiative unconstitutional. Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 470, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982).
The Seattle Plan furthered the District's school desegregation goals, but its operation was unsatisfactory in other ways.[4] In 1988, a decade after its implementation, the District abandoned the Seattle Plan and adopted a new plan that it referred to as "controlled choice." Under the controlled choice plan, schools were grouped into clusters that met state and district desegregation guidelines, and families were permitted to rank schools within the relevant cluster, increasing the predictability of assignments. Because of Seattle's housing patterns, the District's planners explained that "it was impossible to fashion clusters in a geographically contiguous manner"; some cluster schools were near students' homes, but others were in "racially and culturally different neighborhoods." Findings and Conclusions at 30-31. Although roughly 70 percent of students received their first choices, the controlled choice plan still resulted in mandatory busing for 16 percent of the District's students.
In 1994, the Board directed District staff to devise a new plan for all grade levels to simplify assignments, reduce costs and increase community satisfaction, among other things. The guiding factors were to be choice, diversity and predictability. Staff developed four basic options, including the then-existing controlled choice plan, a regional choice plan, a neighborhood assignment plan with a provision for voluntary, integration-positive transfers and an open choice plan.
Board members testified that they considered all the options as they related to the District's educational goals0907with special emphasis, at the secondary school level, on the goals of choice and racial diversity. Neighborhood and regional plans were viewed as unduly limiting student choice, on which the District placed high value because student choice was seen to increase parental involvement in the schools and promote improvements in quality through a marketplace model. The District sought to maintain its commitment to racially integrated education by establishing diversity goals while moving away from the rigid desegregation guidelines and mandatory assignments prevalent in the 1970s and 1980s.
1169 The Board adopted the current open choice plan (the "Plan") for the 1998-99 *1169 school year. Under the Plan, students entering the ninth grade may select any high school in the District. They are assigned, where possible, to the school they list as their first choice. If too many students choose the same school as their first choice, resulting in "oversubscription," the District assigns students to each oversubscribed school based on a series of tiebreakers. If a student is not admitted to his or her first choice school as a result of the tiebreakers, the District tries to assign the student to his or her second choice school, and so on. Students not assigned to one of their chosen schools are assigned to the closest school with space available; students who list more choices are less likely to receive one of these "mandatory" assignments. The most recent version of the Plan, which the School Board reviews annually, is for the 2001-02 school year and is the subject of this litigation.

B. The Plan
The District has sought to make each of its 10 high schools unique, with programs that respond to the continually changing needs of students and their parents. Indeed, the District implemented the Plan as part of a comprehensive effort to improve and equalize the attractiveness of all the high schools, including adoption of a weighted funding formula, a facilities plan and a new teacher contract that would make teacher transfers easier. Nevertheless, the high schools vary widely in desirability. Three of the northern schools 0907 Ballard, Nathan Hale and Roosevelt0907and two of the southern schools0907Garfield and Franklin 0907are highly desirable and oversubscribed, meaning that more students wish to attend those schools than capacity allows.[5] The magnitude of the oversubscription is noteworthy: For the academic year 2000-01, approximately 82 percent of students selected one of the oversubscribed schools as their first choice, while only about 18 percent picked one of the undersubscribed high schools as their first choice. Only when oversubscription occurs does the District become involved in the assignment process.
If a high school is oversubscribed, all students applying for ninth grade are admitted according to a series of four tiebreakers, applied in the following order: First, students who have a sibling attending that school are admitted. In any given oversubscribed school, the sibling tiebreaker accounts for somewhere between 15 to 20 percent of the admissions to the ninth grade class.
Second, if an oversubscribed high school is racially imbalanced0907meaning that the racial make up of its student body differs by more than 15 percent from the racial make up of the students of the Seattle public schools as a whole0907 and if the sibling preference does not bring the oversubscribed high school within plus or minus 15 1170 percent of the District's demographics, the race-based tiebreaker *1170 is "triggered" and the race of the applying student is considered. (For the purposes of the race-based tiebreaker, a student is deemed to be of the race specified in his or her registration materials.) Thus, if a school has more than 75 percent nonwhite students (i.e., more than 15 percent above the overall 60 percent nonwhite student population) and less than 25 percent white students, or when it has less than 45 percent nonwhite students (i.e., more than 15 percent below the overall 60 percent nonwhite student population) and more than 55 percent white students, the school is considered racially imbalanced.
Originally, schools that deviated by more than 10 percent were deemed racially imbalanced. For the 2001-02 school year, however, the triggering number was increased to 15 percent, softening the effect of the tiebreaker.[6] For that year, the race-based tiebreaker was used in assigning entering ninth grade students only to three oversubscribed schools0907Ballard, Franklin and Nathan Hale. Accordingly, in seven of the 10 public high schools in 2001-02, race was not relevant in making admissions decisions.
The race-based tiebreaker is applied to both white and nonwhite students. For example, in the 2000-01 school year0907when the trigger point was still plus or minus 10 percent 89 0907 more white students were assigned to Franklin than would have been assigned absent the tiebreaker, 107 more nonwhite students were assigned to Ballard than would have been assigned absent the tiebreaker, 82 more nonwhite students were assigned to Roosevelt than would have been assigned absent the tiebreaker and 27 more nonwhite students were assigned to Nathan Hale than would have been assigned absent the tiebreaker.[7] These assignments accounted for about 10 percent of admissions to Seattle's high schools as whole. That is, of the approximately 3,000 incoming students entering Seattle high schools in the 2000-01 school year, approximately 300 were assigned to an oversubscribed high school based on the race-based tiebreaker.
In addition to changing the trigger point for the 2001-02 school year to plus or minus 15 percent, the District also developed a "thermostat," whereby the tiebreaker is applied to the entering ninth grade student population only until it comes within the 15 percent plus or minus variance. Once that point is reached, the District "turns-off" the race-based tiebreaker, and there is no further consideration of a student's race in the assignment process. The tiebreaker does not apply, and race is not considered, for students entering a high school after the ninth grade (e.g., by transfer).

As demonstrated in the chart below, the District estimates that without the race-based tiebreaker, the nonwhite populations of the 2000-01 ninth grade class at Franklin would have been 79.2 percent, at Hale 30.5 percent, at 1171 Ballard 33 percent and at Roosevelt 41.1 percent. Using the race-based *1171 tiebreaker, the actual nonwhite populations of the ninth grade classes at the same schools respectively were 59.5 percent, 40.6 percent, 54.2 percent and 55.3 percent.
2000-01 DIFFERENCE IN PERCENTAGES OF NONWHITE STUDENTS IN NINTH GRADE WITH AND WITHOUT TIEBREAKER

SCHOOL

WITHOUT TIEBREAKER

WITH TIEBREAKER

PERCENT Difference

FRANKLIN NATHAN HALE
BALLARD ROOSEVELT

79.2 30.5 33.0 41.1

59.5 40.6 54.2 55.3

-19.7 +10.1 +21.2 +14.2

In the third tiebreaker, students are admitted according to distance from the student's home to the high school. Distance between home and school is calculated within 1/100 of a mile, with the closest students being admitted first. In any given oversubscribed school, the distance-based tiebreaker accounts for between 70 to 75 percent of admissions to the ninth grade.

In the fourth tiebreaker, a lottery is used to allocate the remaining seats. Because the distance tiebreaker serves to assign nearly all the students in the District, a lottery is virtually never used.

C. Procedural History

Parents Involved in Community Schools ("Parents"), a group of parents whose children were not, or might not be, assigned to the high schools of their choice under the Plan, claimed that the District's use of the race-based tiebreaker for high school admissions is illegal under the Washington Civil Rights Act ("Initiative 200"),[8] the Equal Protection Clause of the Fourteenth Amendment[9] and Title VI of the Civil Rights Act of 1964.[10]
Both Parents and the District moved for summary judgment on all claims. In a published opinion dated April 6, 2001, the district court upheld the use of the racial tiebreaker under both state and federal law, granting the District's motion. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 137 F.Supp.2d 1224, 1240 (W.D.Wash.2001) ("Parents I"). Parents timely appealed, and on April 16, 2002, a three-judge panel of this court issued an opinion reversing the district court's decision, holding that the Plan violated Washington state law and discussing federal law only as an aid to construing state law. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 285 F.3d 1236 (9th Cir. 2002) ("Parents II"). The panel subsequently withdrew its opinion and certified the state law question to the Washington Supreme Court. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 294 F.3d 1084, 1085 (9th Cir.2002) ("Parents III"). The Washington Supreme Court disagreed with the panel's 1172 decision, holding that the open choice plan did not violate Washington law. Parents Involved in *1172 Cmty. Schs. v. Seattle Sch. Dist. No. 1, 149 Wash.2d 660, 72 P.3d 151, 166 (2003) ("Parents IV") (holding that Washington law "does not prohibit the Seattle School District's open choice plan tie breaker based upon race so long as it remains neutral on race and ethnicity and does not promote a less qualified minority applicant over a more qualified applicant"). Thereafter, a majority of the three-judge panel of this court held that although the District demonstrated a compelling interest in achieving the benefits of racial diversity, the Plan violated the Equal Protection Clause because it was not narrowly tailored. Parents Involved in Comty. Schs. v. Seattle Sch. Dist., No. 1, 377 F.3d 949 (9th Cir.2004) ("Parents V"). We granted en banc rehearing and now affirm the district court. [11]

II. Discussion
A. Strict Scrutiny
We review racial classifications under the strict scrutiny standard, which requires that the policy in question be narrowly tailored to achieve a compelling state interest. See Johnson v. California, ___ U.S. ___, 125 S.Ct. 1141, 1146, 160 L.Ed.2d 949 (2005); Grutter, 539 U.S. at 326, 123 S.Ct. 2325; Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 226-27, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995).[12] The strict scrutiny standard is not "strict in theory, 1173 but fatal in fact." Adarand, 515 *1173 U.S. at 237, 115 S.Ct. 2097 (internal quotation marks omitted). "Although all governmental uses of race are subject to strict scrutiny, not all are invalidated by it." Grutter, 539 U.S. at 326-27, 123 S.Ct. 2325. We employ strict scrutiny to "smoke out" impermissible uses of race by ensuring that the government is pursuing a goal important enough to warrant use of a highly suspect tool. Id. at 327, 123 S.Ct. 2325 (internal quotation marks omitted). This heightened standard of review provides 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 particular context. Smith v. Univ. of Washington, 392 F.3d 367, 372 (9th Cir.2004). In evaluating the District's Plan under strict scrutiny, we also bear in mind the Court's directive that "[c]ontext matters when reviewing race-based governmental action under the Equal Protection Clause." Grutter, 539 U.S. at 326, 123 S.Ct. 2325.
B. Compelling State Interest
Under strict scrutiny, a government action will not survive unless motivated by a "compelling state interest." See id. at 325, 327, 123 S.Ct. 2325. Because strict scrutiny requires us to evaluate the "fit" between the government's means and its ends, Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 280 n. 6, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986), it is critical to identify precisely the governmental interests 0907the ends to 0907 which the government's use of race must fit. See United States v. Paradise, 480 U.S. 149, 171, 107 S.Ct. 1053, 94 L.Ed.2d 203 (1987) (stating that, in order to determine whether an order was narrowly tailored, "we must examine the purposes the order was intended to serve").
Although the Supreme Court has never decided a case involving the consideration of race in a voluntarily imposed school assignment plan intended to promote racially and ethnically diverse secondary schools, its decisions regarding selective admissions to institutions of higher learning demonstrate that one compelling reason for considering race is to achieve the educational benefits of diversity. The compelling interest that the Court recognized in Grutter was the promotion of the specific educational and societal benefits that flow from diversity. See Grutter, 539 U.S. at 330, 123 S.Ct. 2325 (noting that the law school's concept of critical mass must be "defined by reference to the educational benefits that diversity is designed to produce"). In evaluating the relevance of diversity to higher education, the Court focused principally on two benefits that a diverse student body provides: (1) the learning advantages of having diverse viewpoints represented in the "robust exchange of ideas" that is critical to the mission of higher education, id. at 329-30, 123 S.Ct. 2325; and (2) the greater societal legitimacy that institutions of higher learning enjoy by cultivating a group of national leaders who are representative of our country's diversity, id. at 332-33, 123 S.Ct. 2325. The Court also mentioned the role of diversity in challenging stereotypes. Id. at 330, 333, 123 S.Ct. 2325. The Court largely deferred to the law school's educational judgment not only in determining that diversity would produce these benefits, but also in determining that these benefits were critical to the school's educational mission. Id. at 328-33, 123 S.Ct. 2325. [13]
1174 *1174 Against this background, we consider the specific interests that the District's Plan seeks to advance. These interests are articulated in the "Board Statement Reaffirming Diversity Rationale" as:
Diversity in the classroom increases the likelihood that students will discuss racial or ethnic issues and be more likely to socialize with people of different races. Diversity is thus a valuable resource for teaching students to become citizens in a multi-racial/multi-ethnic world.

Providing students the opportunity to attend schools with diverse student enrollment also has inherent educational value from the standpoint of education's role in a democratic society. . . . Diversity brings different viewpoints and experiences to classroom discussions and thereby enhances the educational process. It also fosters racial and cultural understanding, which is particularly important in a racially and culturally diverse society such as ours.
The District's commitment to the diversity of its schools and to the ability to voluntarily avoid racially concentrating enrollment patterns also helps ensure that all students have access to those schools, faculties, course offerings, and resources that will enable them to reach their full potential.
Based on the foregoing rationale, the Seattle School District's commitment is that no student should be required to attend a racially concentrated school. The District is also committed to providing students with the opportunity to voluntarily choose to attend a school to promote integration. The District provides these opportunities for students to attend a racially and ethnically diverse school, and to assist in the voluntary integration of a school, because it believes that providing a diverse learning environment is educationally beneficial for all students.
The District's interests fit into two broad categories: (1) the District seeks the affirmative educational and social benefits that flow from racial diversity; and (2) the District seeks to avoid the harms resulting from racially concentrated or isolated schools.
1. Educational and Social Benefits that Flow from Diversity
The District has established that racial diversity produces a number of compelling educational and social benefits in secondary education. First, the District presented expert testimony that in racially diverse schools, "both white and minority students experienced improved critical thinking skills0907the ability to both understand and challenge views which are different from their own."
Second, the District demonstrated the socialization and citizenship advantages of racially diverse schools. School officials, relying on their experience as teachers and administrators, and the District's expert all explained these benefits on the record. According to the District's expert, the social science research "clearly and consistently shows that, for both white and minority students, a diverse educational experience results in improvement in 1175 race-relations, the reduction of prejudicial attitudes, and the achievement of a more . . . *1175 inclusive experience for all citizens. . . . The research further shows that only a desegregated and diverse school can offer such opportunities and benefits. The research further supports the proposition that these benefits are long lasting." (Emphasis added.) Even Parents' expert conceded that "[t]here is general agreement by both experts and the general public that integration is a desirable policy goal mainly for the social benefit of increased information and understanding about the cultural and social differences among various racial and ethnic groups." [14] That is, diversity encourages students not only to think critically but also democratically.
Third, the District's expert noted that "research shows that a[ ] desegregated educational experience opens opportunity networks in areas of higher education and employment . . . [and] strongly shows that graduates of desegregated high schools are more likely to live in integrated communities than those who do not, and are more likely to have cross-race friendships later in life."[15]
The District's interests in the educational and social benefits of diversity are similar to those of a law school as articulated in Grutter. The contextual differences between public high schools and universities, however, make the District's interests compelling in a similar but also significantly different manner. See Grutter, 539 U.S. at 330, 123 S.Ct. 2325 (noting that the compelling state interest in diversity is judged in relation to the educational benefits that it seeks to produce).
The Supreme Court in Grutter noted the importance of higher education in "preparing students for work and citizenship." 539 U.S. at 331, 123 S.Ct. 2325. For a number of reasons, public secondary schools have an equal

if not more important role in this preparation. First, underlying the history of desegregation in this country is a legal regime that recognizes the principle that public secondary education serves a unique and vital socialization function in our democratic society. As the Court explained in Plyler v. Doe, "[w]e have recognized the public schools as a most vital civic institution for the preservation of a democratic system of government, and as the primary vehicle for transmitting the values on which our society rests." 457 U.S. 202, 221, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) (internal quotation marks and citations omitted); see Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 683, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986) (stating that the inculcation of civic values is "truly the work 1176 of the schools") (internal quotation marks omitted); Plyler, 457 U.S. at 221-23, 102 S.Ct. 2382 (noting that public *1176 education perpetuates the political system and the economic and social advancement of citizens and that "education has a fundamental role in maintaining the fabric of our society"); Ambach v. Norwick, 441 U.S. 68, 76-77, 99 S.Ct. 1589, 60 L.Ed.2d 49 (1979) (observing that public schools transmit to children "the values on which our society rests," including "fundamental values necessary to the maintenance of a democratic political system"); Brown v. Bd. of Educ., 347 U.S. 483, 493, 74 S.Ct. 686, 98 L.Ed. 873 (1954) ("[Education] is required in the performance of our most basic public responsibilities. . . . It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment."). Under Washington law, such civic training is mandated by the state constitution: "Our constitution is unique in placing paramount value on education for citizenship." Parents IV, 72 P.3d at 158.
Second, although one hopes that all students who graduate from Seattle's public schools would have the opportunity to attend institutions of higher learning if they so desire, a substantial number of Seattle's public high school graduates do not attend college.[16] For these students, their public high school educational experience will be their sole opportunity to reap the benefits of a diverse learning environment. We reject the notion that only those students who leave high school and enter the elite world of higher education should garner the benefits that flow from learning in a diverse classroom. Indeed, it would be a perverse reading of the Equal Protection Clause that would allow a university, educating a relatively small percentage of the population, to use race when choosing its student body but not allow a public school district, educating all children attending its schools, to consider a student's race in order to ensure that the high schools within the district attain and maintain diverse student bodies.
Third, the public school context involves students who, because they are younger and more impressionable, are more amenable to the benefits of diversity. See Comfort, 418 F.3d at 15-16 ("In fact, there is significant evidence in the record that the benefits of a racially diverse school are more compelling at younger ages."); Comfort v. Lynn School Committee, 283 F.Supp.2d 328, 356 (D.Mass.2003) (noting expert testimony describing racial stereotyping as a "`habit of mind' that is difficult to break once it forms" and explaining that "[i]t is more difficult to teach racial tolerance to college-age students; the time to do it is when the students are still young, before they are locked into racialized thinking"); see also Goodwin Liu, Brown, Bollinger, and Beyond, 47 How. L.J. 705, 755 (2004) ("[I]f `diminishing the force of [racial] stereotypes' is a compelling pedagogical interest in elite higher education, it can only be more so in elementary and secondary schools 0907 for the very premise of Grutter's diversity rationale is that students enter higher education having had too few opportunities in early grades to study and learn alongside peers from other racial groups.") (citing Grutter, 539 U.S. at 333, 123 S.Ct. 2325) (emphasis added)).
The dissent insists that racial diversity in a public high school is not a compelling interest, arguing that Grutter 1177 endorsed a law school's compelling interest in diversity *1177 only in some broader or more holistic sense. Bea,
J., dissenting, infra. at 1202. To attain this broader interest, the dissent contends, the District may only consider race along with other attributes such as socioeconomic status, ability to speak multiple languages or extracurricular talents. We read Grutter, however, to recognize that racial diversity, not some proxy for it, is valuable in and of itself. 539 U.S. at 330, 123 S.Ct. 2325 (discussing the "substantial" benefits that flow from a racially diverse student body and citing several sources that detail the impact of racial diversity in the educational environment).
In short, the District has demonstrated that it has a compelling interest in the educational and social benefits of racial diversity similar to those articulated by the Supreme Court in Grutter as well as the additional compelling educational and social benefits of such diversity unique to the public secondary school context.

2. Avoiding the Harms Resulting from Racially Concentrated or Isolated Schools
The District's interest in achieving the affirmative benefits of a racially diverse educational environment has a flip side: avoiding racially concentrated or isolated schools. In particular, the District is concerned with making the educational benefits of a diverse learning environment available to all its students and ensuring that "no student should be required to attend a racially concentrated school." See "Board Statement Reaffirming Diversity Rationale," quoted supra p. 1174. Research regarding desegregation has found that racially concentrated or isolated schools are characterized by much higher levels of poverty, lower average test scores, lower levels of student achievement, with less-qualified teachers and fewer advanced courses 0907 "[w]ith few exceptions, separate schools are still unequal schools." See Erica Frankenberg et al., A Multiracial Society with Segregated Schools: Are We Losing the Dream? 11 (The Civil Rights Project, Harvard Univ. Jan. 2003), at http://www.civilright sproject.harvard.edu /research/ reseg03/AreWeLosing theDream.pdf) (hereinafter "Civil Rights Project") (last visited October 11, 2005) (cited in Grutter, 539 U.S. at 345, 123 S.Ct. 2325 (Ginsburg, J., concurring)).
In Seattle, the threat of having to attend a racially concentrated or isolated school is not a theoretical or imagined problem.[17] As the district court found, the District "established that housing patterns in Seattle continue to be racially concentrated," and would result in racially concentrated or isolated schools if school assignments were based solely on a student's neighborhood or proximity to a particular high school. Parents I, 137 F.Supp.2d at 1235. Accordingly, the District's Plan strives to ensure that patterns of residential segregation are not replicated in the District's school assignments. Cf. Comfort, 418 F.3d at 29 ("The problem is that in Lynn, as in many other cities, minorities and whites often live in different neighborhoods. Lynn's aim is to preserve local schools as an option without having the housing pattern of de facto segregation projected into the school system.") (Boudin, 1178 C.J., concurring). Although Parents make much of the fact that "Seattle has never operated a *1178 segregated school system," and allege that "this is not a school desegregation case," each court to review the matter has concluded that because of Seattle's housing patterns, high schools in Seattle would be highly segregated absent race conscious measures. See Parents I, 137 F.Supp.2d at 1237; Parents II, 285 F.3d at 1239-40; Parents III, 294 F.3d at 1088; Parents IV, 72 P.3d at 153.
The district court found that, "[t]he circumstances that gave rise to the court-approved school assignment policies of the 1970s [e.g., Seattle's segregated housing patterns] continue to be as compelling today as they were in the days of the district's mandatory busing programs. . . . [I]t would defy logic for this court to find that the less intrusive programs of today violate the Equal Protection Clause while the more coercive programs of the 1970s did not." Parents I, 137 F.Supp.2d at 1235. Thus, it concluded that "[p]reventing the re-segregation of Seattle's schools is . . . a compelling interest." Id. at 1237; see id. at 1233-35. Several other courts have also conceived of a school district's voluntary reduction or prevention of de facto segregation as a compelling interest. See Comfort, 418 F.3d at 14 (holding that the "negative consequences of racial isolation that Lynn seeks to avoid and the benefits of diversity that it hopes to achieve" constituted compelling interests); Brewer v. W. Irondequoit Cent. Sch. Dist., 212 F.3d 738, 752 (2d Cir.2000) (holding that "a compelling interest can be found in a program that has as its object the reduction of racial isolation and what appears to be de facto segregation"), superseded on other grounds as stated in Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 171 n. 7 (2d Cir.2001); Parent Ass'n of Andrew Jackson High Sch. v. Ambach, 738 F.2d 574, 579 (2d Cir.1984) ("[W]e held that the Board's goal of ensuring the continuation of relatively integrated schools for the maximum number of students, even at the cost of limiting freedom of choice for some minority students, survived strict scrutiny as a matter of law.") (citing Parent Ass'n of Andrew Jackson High Sch. v. Ambach, 598 F.2d 705, 717-20 (2d Cir.1979)); McFarland v. Jefferson County Pub. Sch., 330 F.Supp.2d 834, 851 (W.D.Ky.2004) (concluding that voluntary maintenance of the desegregated school system was a compelling state interest and the district could consider race in assigning students to comparable schools), aff'd 416 F.3d 513 (6th Cir.2005).[18] We join these courts in recognizing that school districts have a compelling interest in ameliorating real, identifiable de facto racial segregation.
The dissent, however, contends first that the District is not "desegregating" but rather is engaged in racial balancing. Bea, J., dissenting, infra. at 1197-1198. Further, for the dissent, segregation requires a state actor

intentionally to separate the races; and in the absence of such offensive state conduct, the Supreme Court cases detailing the remedies for Fourteenth Amendment violations are of no relevance. Bea, J., dissenting, infra. at 1208, n. 17. Thus, without a court finding of de jure segregation the elected school board members of the District 1179 may not take voluntary, affirmative steps towards *1179 creating a racially diverse student body. We disagree. The fact that de jure segregation is particularly offensive to our Constitution does not diminish the real harms of separation of the races by other means. "Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of law. . . ." Brown v. Bd. of Educ., 347 U.S. 483, 494, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (emphasis added). The benefits that flow from integration (or desegregation) exist whether or not a state actor was responsible for the earlier racial isolation. Brown's statement that "in the field of public education . . . [s]eparate educational facilities are inherently unequal" retains its validity today. Id. at 495, 74 S.Ct. 686. The District is entitled to seek the benefits of racial integration and avoid the harms of segregation even in the absence of a court order deeming it a violator of the U.S. Constitution.
Support for this conclusion comes from statements in the Supreme Court's school desegregation cases, which repeatedly refer to the voluntary integration of schools as sound educational policy within the discretion of local school officials.[19]See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) (stating that school authorities "are traditionally charged with broad power to formulate and implement educational policy and might well conclude . . . 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"); N.C. State Bd. of Educ. v. Swann, 402 U.S. 43, 45, 91 S.Ct. 1284, 28 L.Ed.2d 586 (1971) ("[A]s 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."); Bustop, Inc. v. Bd. of Educ. of Los Angeles, 439 U.S. 1380, 1383, 99 S.Ct. 40, 58 L.Ed.2d 88 (1978) (denying a request to stay implementation of a voluntary desegregation plan and noting that there was "very little doubt" that the Constitution at least permitted its implementation); Keyes v. Sch. Dist. No. 1, 413 U.S. 189, 242, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973) (Powell, J., concurring in part and dissenting in part) ("School boards would, of course, be free to develop and initiate further plans to promote school desegregation. . . . Nothing in this opinion is meant to discourage school boards from exceeding minimal constitutional standards in promoting the values of an integrated school experience."); Washington v. Seattle Sch. Dist. No. 1, 458 U.S. at 480, 487, 102 S.Ct. 3187 (holding unconstitutional the state initiative that blocked the Seattle School District's use of mandatory busing to remedy de facto segregation).
In sum, we hold that the District's interests in obtaining the educational and social benefits of racial diversity in secondary education and in avoiding racially concentrated or isolated schools resulting from Seattle's segregated housing pattern are clearly compelling.
C. Narrow Tailoring
We must next determine whether the District's use of the race-based tiebreaker is narrowly tailored to achieve its 1180 compelling interests. See Grutter, 539 *1180 U.S. at 333, 123 S.Ct. 2325. The narrow tailoring inquiry is intended
to "`smoke out' illegitimate uses of race" by ensuring that the government's classification is closely fitted to the compelling goals that it seeks to achieve. Richmond v. J.A. Croson Co., 488 U.S. 469, 493, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989). Here, our analysis is framed by the Court's narrow tailoring analysis in Grutter and Gratz, which, though informed by considerations specific to the higher education context, substantially guides our inquiry. See Grutter, 539 U.S. at 334, 123 S.Ct. 2325 (stating that the narrow tailoring inquiry is context-specific and must be "calibrated to fit the distinct issues raised" in a given case, taking "relevant differences into account") (internal quotation marks omitted).
In Gratz, the Court held unconstitutional the University of Michigan's undergraduate admissions program, which automatically assigned 20 points on the admissions scale to an applicant from an underrepresented racial or ethnic minority group. 539 U.S. at 255, 272, 123 S.Ct. 2411. In Grutter, by contrast, the Court upheld the University of Michigan Law School's admissions policy, which took race into account as one of several variables in an individual's application. 539 U.S. at 315-16, 340, 123 S.Ct. 2325. The law school's policy also attempted to

ensure that a "critical mass" of underrepresented minority students would be admitted in order to realize the benefits of a diverse student body.[20]Id. at 316, 123 S.Ct. 2325.
In its analysis, the Court identified five hallmarks of a narrowly tailored affirmative action plan: (1) individualized consideration of applicants; (2) the absence of quotas; (3) serious, good-faith consideration of race-neutral alternatives to the affirmative action program; (4) that no member of any racial group was unduly harmed; and (5) that the program had a sunset provision or some other end point. Smith v. Univ. of Washington, 392 F.3d 367, 373 (9th Cir.2004); Comfort, 418 F.3d at 17 (characterizing Grutter as outlining a "four-part narrow tailoring inquiry").
Hallmarks two through five are applicable here despite significant differences between the competitive admissions plans at issue in Gratz and Grutter and the District's high school assignment Plan. The first hallmark, however, is less relevant to our analysis because of the contextual differences between institutions of higher learning and public high schools.
1. Individualized, Holistic Consideration of Applicants
a. An applicant's qualifications
In the context of university admissions, where applicants compete for a limited number of spaces in a class, the Court in Grutter and Gratz focused its inquiry on the role race may play in judging an applicant's qualifications. The Court's underlying concern was that the "admissions policy is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight." Grutter, 539 U.S. at 337, 123 S.Ct. 2325 (emphasis added) (internal quotation marks omitted); see Adarand, 515 U.S. at 211, 115 S.Ct. 2097 ("The injury in cases of this kind is that a discriminatory classification prevent[s] the plaintiff from competing 1181 on an equal footing.") (emphasis added) (internal quotation marks omitted). *1181 The focus on fair competition is due, in part, to the stigma that may attach if some individuals are viewed as unable to achieve success without special protection. See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 298, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (Powell, J., concurring) ("preferential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor having no relationship to individual worth"); Croson, 488 U.S. at 493, 109 S.Ct. 706 ("Classifications based on race carry a danger of stigmatic harm. Unless they are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility.").
In Grutter and Gratz, in order to prevent race from being used as a mechanical proxy for an applicant's qualifications, the Court required individualized, holistic consideration of each applicant across a broad range of factors (of which race may be but one). Grutter, 539 U.S. at 336-37, 123 S.Ct. 2325; see Gratz, 539 U.S. at 272, 123 S.Ct. 2411 (holding that the undergraduate admissions policy was not narrowly tailored because the "automatic distribution of 20 points has the effect of making `the factor of race . . . decisive' for virtually every minimally qualified underrepresented minority applicant") (emphasis added). This focus on an applicant's qualifications 0907 whether these qualifications are such things as an applicant's test scores, grades, artistic or athletic ability, musical talent or life experience 0907 is not applicable when there is no competition or consideration of qualifications at issue.
All of Seattle's high school students must and will be placed in a Seattle public school.[21] Students' relative qualifications are irrelevant because regardless of their academic achievement, sports or artistic ability, musical talent or life experience, any student who wants to attend Seattle's public high schools is entitled to an assignment; no assignment to any of the District's high schools is tethered to a student's qualifications. Thus, no stigma results from any particular school assignment.[22] Accordingly, the dangers that are present in the university context 0907 of substituting racial preference for qualification-based competition 0907 are absent here. See Comfort, 418 F.3d at 18 ("Because transfers under the Lynn Plan are not tied to merit, the Plan's use of race

does not risk imposing stigmatic harm by fueling the stereotype that `certain groups are unable to achieve success without special protection.'") (quoting Bakke, 438 U.S. at 298, 98 S.Ct. 2733).
b. Differences in compelling interests
1182 The Court's requirement of individualized, holistic review in Grutter is also more *1182 relevant to the compelling interest advanced by the law school ("the robust exchange of ideas" fostered by viewpoint diversity) than it is to the District's (racial diversity and avoiding racially concentrated or isolated schools). See Grutter, 539 U.S. at 337, 123 S.Ct. 2325. The Court noted that the law school did not "limit in any way . . . the broad range of qualities and experiences that may be considered valuable contributions to student body diversity." Id. at 338, 123 S.Ct. 2325. To this end, the law school's policy made clear that "[t]here are many possible bases for diversity admissions, and provide[d] examples of admittees who have lived or traveled widely abroad, are fluent in several languages, have overcome personal adversity and family hardship, have exceptional records of extensive community service, and had successful careers in other fields." Id. (internal quotation marks and citations omitted). These multiple bases for diversity ensure the "classroom discussion is livelier, more spirited, and simply more enlightening and interesting when the students have the greatest possible variety of backgrounds." Id. at 330, 123 S.Ct. 2325 (internal citations omitted).
Although the District's Plan, like the plan in Grutter, is designed to achieve the educational and social benefits of diversity, including bringing "different viewpoints and experiences to classroom discussions," see "Statement Reaffirming Diversity Rationale," viewpoint diversity in the law school and high school contexts serves different albeit overlapping ends. In the law school setting, viewpoint diversity fosters the "robust exchange of ideas." Grutter, 539 U.S. at 324, 123 S.Ct. 2325; see Comfort, 418 F.3d at 16 ("[L]ively classroom discussion is a more central form of learning in law schools (which prefer the Socratic method) than in a K-12 setting."). In the high school context, viewpoint diversity fosters racial and civic understanding.[23] For example, Eric Benson, the principal of Nathan Hale High School, one of the District's most popular schools, testified that as a result of racial diversity in the classroom, "students of different races and backgrounds tend to have significant interactions both in class, and outside of class. When I came to Nathan Hale, there were racial tensions in the school, reflected in fighting and disciplinary problems. These kind of problems have, to a large extent, disappeared."
In addition, the law school takes other diversity factors, besides race and ethnicity, into consideration in order to achieve its other compelling interest 0907 cultivating a group of national leaders. For example, extensive travel, fluency in foreign languages, extensive community service and successful careers in other fields demonstrate that a candidate is somehow exceptional or out of the ordinary. cf. Gratz, 539 U.S. at 273, 123 S.Ct. 2411 (disapproving of the undergraduate admissions plan, in part, because of its failure to consider whether an applicant was extraordinary and noting that "[e]ven if [a] student['s] `extraordinary artistic talent' rivaled that of 1183 Monet or Picasso, the applicant would receive, at most, five points" as opposed to *1183 the automatic 20 points given to an applicant from an underrepresented minority). In contrast, the District is required to educate all high school age children, both the average and the extraordinary, regardless of individual leadership potential.
The District also has a second compelling interest that is absent from the university context 0907 ensuring that its school assignments do not replicate Seattle's segregated housing patterns. The holistic review necessary to achieve viewpoint diversity in the university context, across a broad range of factors (of which race may be but one), is not germane to the District's compelling interest in preventing racial concentration or racial isolation. Because race itself is the relevant consideration when attempting to ameliorate de facto segregation, the District's tiebreaker must necessarily focus on the race of its students. See Comfort, 418 F.3d at 18 (holding that when racial diversity is the compelling interest 0907 "[t]he only relevant criterion, then, is a student's race; individualized consideration beyond that is irrelevant to the compelling interest"); Brewer v. W. Irondequoit Cent. Sch. Dist., 212 F.3d at 752 ("If reducing racial isolation is 0907 standing alone 0907 a constitutionally permissible goal, . . . then there is no more effective means of achieving that goal than to base decisions on race."). We therefore conclude that if a noncompetitive, voluntary student assignment plan is otherwise narrowly tailored, a district need not consider each student in a individualized, holistic manner.[24]

The dissent insists that absent such individualized consideration, the District's plan cannot serve a compelling interest and is not narrowly tailored to protect individuals from group classifications by race. Bea, J., dissenting, infra. at 1209. This is a flawed reading of the Fourteenth Amendment.[25] The District's compelling interest is to avoid the harms of racial isolation for all students in the Seattle school district. As we have explained, to accomplish that objective the District may look to the racial consequences of honoring the preferred choices of individual students (and their parents). It is true that for some students their first choice of school, based on geographical proximity, will be denied because other students' choices are granted in order to advance the overall interest in maintaining racially diverse school enrollments. The Fourteenth Amendment in this context does not preclude the District from honoring racial diversity at the expense of geographical proximity. We must not forget that "race unfortunately still matters," Grutter, 539 U.S. at 333, 123 S.Ct. 2325, and it is race that is the relevant consideration here.
1184 *1184 In sum, the contextual differences between public high schools and selective institutions of higher learning make the first of the Grutter hallmarks ill-suited for our narrow tailoring inquiry.[26] The remaining hallmarks, however, are relevant and control our analysis.
2. Absence of Quotas
In Grutter, the Court approved the law school's plan, in part, because it did not institute a quota, whereby a fixed number of slots are reserved exclusively for minority groups, thereby insulating members of those groups from competition with other candidates.[27]539 U.S. at 335, 123 S.Ct. 2325. Although the law school's plan did not seek to admit a set number or percentage of minority students, during the height of the admission's season, the law school would consult "daily reports" that kept track of the racial composition of the incoming class. Id. at 318, 123 S.Ct. 2325. The Court held that this attention to numbers did not transform the law school plan into a quota, but instead demonstrated that the law school sought to enroll a critical mass of minority students in order "to realize the educational benefits of a diverse student body." Id. Similarly, we conclude that the District's 15 percent plus or minus variance is not a quota because it does not reserve a fixed number of slots for students based on their race, but instead it seeks to enroll a critical mass of white and nonwhite students in its oversubscribed schools in order to realize its compelling interests.[28]
a. No fixed number of slots
The District's race-based tiebreaker does not set aside a fixed number of slots for nonwhite or white students in any of the District's schools. The tiebreaker is used only so long as there are members of the underrepresented race in the applicant pool for a particular oversubscribed school. If the number of students of that race who have 1185 applied to that school is exhausted, no further action is taken, even if the 15 *1185 percent variance has not been satisfied. That is, if the applicant pool has been exhausted, no students are required or recruited to attend a particular high school in order to bring it within the 15 percent plus or minus range for that year.
Moreover, the number of white and nonwhite students in the high schools is flexible and varies from school to school and from year to year.[29] This variance in the number of nonwhite and white students throughout the District's high schools is because, under the Plan, assignments are based on students' and parents' preferences. [30] The tiebreakers come into play in the assignment process only when a school is oversubscribed. As Morgan Lewis, the Manager of Enrollment Planning, Technical Support and Demographics, testified, "If all the parents . . . don't pick [a] school in a massive number, then everyone gets in. And so it's . . . a case where the choice patterns, the oversubscription . . . [is] the reason the [tiebreaker] kicks in. . . . Everything happens when more people want the seats. And why they want the seats sometimes we don't know."

b. Critical mass
Within this flexible system, where parental and student choices drive the assignments to particular schools, the District seeks to enroll and maintain a relatively stable critical mass of white and nonwhite students in each of its oversubscribed high schools in order to achieve its compelling interest in racial diversity and to prevent the assignments from replicating Seattle's segregated housing patterns. Faced with the question of what constituted a critical mass of students in this particular context, the District determined that a critical mass was best achieved by adopting the 15 percent plus or minus variance tied to demographics of students in the Seattle public schools. Thus, when an oversubscribed high school has more than 75 percent nonwhite students (i.e., more than 15 percent above the overall 60 percent nonwhite student population) and less than 25 percent white students, or when it has less than 45 percent nonwhite students (i.e., more than 15 percent below the overall 60 percent nonwhite student population) and more than 55 percent white students, the school is considered racially concentrated or isolated, meaning that it lacks a critical mass of students needed "to realize the educational benefits of a diverse student body."
Parents attack the District's use of the 15 percent plus or minus variance tied to the District's school population demographics because they believe that the District cannot use race at all in its assignment process. We have rejected this argument, however, applying Grutter and Gratz. See supra Part II.B. Alternatively, Parents contend 1186 that the District's goal of enrolling between 75 and 45 percent nonwhite *1186 students and between 25 and 55 percent white students in its oversubscribed schools establishes a quota, not a critical mass. They note that the critical mass sought by the law school in Grutter was smaller, consisting of between 12 and 20 percent of underrepresented minority students in each law school class.
Parents' argument, however, ignores Grutter's admonition that the narrow tailoring inquiry be context-specific. First, like the District's enrollment goals, which are tied to the demographics of the Seattle schools' total student population, the law school's goal of enrolling between 12 to 20 percent of underrepresented minorities in a given year was tied to the demographics of its applicant pool.[31] Second, in tying the use of the tiebreaker to the District's demographics with a 15 percent plus or minus trigger point, the District adopted a common benchmark in the context of voluntary and court-ordered school desegregation plans. As the District's expert testified,
Most of the cases I've participated in . . . generally worked with numbers that reflect the racial composition of the school district but, at the same time, tr[ied] to allow the district sufficient flexibility so that it would not have to regularly and repeatedly move students on a short-term basis simply to maintain some specific number. That's why we see ranges of plus or minus 15 percent in most cases of school desegregation.
Even Parents' expert testified that school districts throughout the country determine whether a district is sufficiently desegregated by looking to the "population of the district" in question. See also Comfort, 418 F.3d at 21 (holding that a "transfer policy conditioned on district demographics (+/-10-15%)" was not a quota because it "reflects the defendants' efforts to obtain the benefits of diversity in a stable learning environment"); Belk v. Charlotte-Mecklenburg Bd. of Educ., 233 F.3d 232, 287-88 (4th Cir.2000) (Traxler, J., dissenting) (citing to a book written by David J. Armor, Parents' expert, Forced Justice: School Desegregation and the Law 160 (1995), which observed that over 70 percent of the school districts with desegregation plans use a variance of plus or minus 15 percent or greater); cf. 34 C.F.R. § 280.4(b) (defining "minority group isolation" as a "condition in which minority group children constitute more than 50 percent of the enrollment of [a] school"). Given this empirically and timetested notion of critical mass in the public high school desegregation context, it would make little sense to force the District to utilize the same percentages that constituted a critical mass in the elite law school context to determine what constitutes a critical mass for Seattle public high schools. See Grutter, 539 U.S. at 336, 123 S.Ct. 2325 ("[S]ome attention to numbers, without more, does not transform a flexible admissions system into a rigid quota.") (internal quotation marks and citations omitted).

Accordingly, we conclude that the District's 15 percent plus or minus trigger point tied to the demographics of the Seattle school population is not a quota. It is a context-specific, flexible measurement of racial diversity designed to attain and maintain a critical mass of white and nonwhite students in Seattle's public high schools.
1187 *1187 3. Necessity of the Plan and Race-Neutral Alternatives
Narrow tailoring also requires us to consider the necessity of the race-based plan or policy in question and whether there are equally effective, race-neutral alternatives.
a. Necessity of the Plan
The District argues that the compelling interests that it seeks are directly served by the race-based tiebreaker. The tiebreaker allows the District to balance students' and parents' choices among high schools with its broader compelling interests 0907 achieving the educational and social benefits of diversity and the benefits specific to the secondary school context, and discouraging a return to enrollment patterns based on Seattle's racially segregated housing pattern.
i. Need for race-based tiebreaker
When the District moved from its controlled choice plan to the current Plan, see supra Part I.A, it predicted that families would tend to choose schools close to their homes. Indeed, this feature was seen as a positive way to increase parental involvement. However, unfettered choice 0907 especially with tiebreakers based on neighborhood or distance from a school 0907 created the risk that Seattle's high school enrollment would again do no more than reflect its segregated housing patterns. See supra Part II.C.2.
It is this de facto residential segregation across a white/nonwhite axis that the District has battled historically and that it seeks to ameliorate by making the integration tiebreaker a part of its open choice Plan.[32] The District, mindful of both Seattle's history and future, appropriately places its focus here. In the 2001-02 school year, the integration tiebreaker operated in three high schools (that is, three high schools were oversubscribed and deviated by more than 15 percent from the ratio of white to nonwhite students district-wide). The integration tiebreaker served to alter the imbalance in the schools in which it operated in a minimally intrusive manner. The tiebreaker, therefore, successfully achieved the District's compelling interests.
ii. White/Nonwhite distinction
Parents argue that the District paints with too broad a brush by distinguishing only between white and nonwhite students, without taking into account the diversity within the "nonwhite" group. However, the District's choice to increase diversity along the white/nonwhite axis is rooted in Seattle's history and current reality of de facto segregation resulting from Seattle's segregated housing patterns. The white/nonwhite distinction is narrowly tailored to prioritize movement of students from the north of the city to the south of city and vice versa. This white/ nonwhite focus is also consistent with the history of public school desegregation measures throughout the country, as reflected in a current federal regulation defining "[m]inority group isolation" as "a condition in which minority group children constitute more than 50 percent of the enrollment of the school," without distinguishing among the various categories included within the definition of "minority group." 34 C.F.R. § 280.4(b); see Grutter, 1188 539 U.S. at 316, *1188 123 S.Ct. 2325 (noting that the law school sought to enroll a critical mass of "minority students," a category that included African Americans, Hispanics and Native Americans); Comfort, 418 F.3d at 22 ("By increasing diversity along the white/nonwhite axis, the Plan reduced racial tensions and produced positive educational benefits. Narrow tailoring does not require that Lynn ensure diversity among every racial and ethnic subgroup as well.") (emphasis added).

b. Race-neutral alternatives
In Grutter, the Court explained that narrow tailoring "require[s] serious, good faith consideration of workable raceneutral alternatives that will achieve the diversity the university seeks." 539 U.S. at 339, 123 S.Ct. 2325 (emphasis added). On the other hand, "[n]arrow tailoring does not require exhaustion of every conceivable raceneutral alternative." Id. Furthermore, the Court made clear that the university was not required to adopt raceneutral measures that would have forced it to sacrifice other educational values central to its mission. Id. at 340, 123 S.Ct. 2325. Implicit in the Court's analysis was a measure of deference toward the university's identification of those values.[33]See id. at 328, 340, 123 S.Ct. 2325. Here, the record reflects that the District reasonably concluded that a race-neutral alternative would not meet its goals.
i. Using poverty as an alternative measure of diversity
The record demonstrates that the School Board considered using a poverty tiebreaker in place of the race-based tiebreaker. It concluded, however, that this proxy device would not achieve its compelling interest in achieving racial diversity, and had other adverse effects. Although there was no formal study of the proposal by District staff, Board members' testimony revealed two legitimate reasons why the Board rejected the use of poverty to reach its goal of racial diversity. First, the Board concluded that it is insulting to minorities and often inaccurate to assume that poverty correlates with minority status. Second, for the group of students for whom poverty would 1189 correlate with minority *1189 status, the implementation would have been thwarted by high school students' understandable reluctance to reveal their socioeconomic status to their peers.
Because racial diversity is a compelling interest, the District may permissibly seek it if it does so in a narrowly tailored manner. We do not require the District to conceal its compelling interest of achieving racial diversity and avoiding racial concentration or isolation through the use of "some clumsier proxy device" such as poverty. See Comfort, 418 F.3d at 29 (Boudin, C.J., concurring).
ii. The Urban League plan
Parents also assert that the District should have more formally considered an Urban League proposal, which did not eliminate the integration tiebreaker but merely considered it after other factors. The Urban League plan was a comprehensive plan seeking to enhance the quality of education in Seattle's schools by focusing on educational organization, teacher quality, parent-teacher interaction, raising curricular standards, substantially broadening the availability of specialized and magnet programs (which could attract a broader cross-section of students to undersubscribed schools) and supporting extra-curricular development. The plan proposed decreasing the School District's reliance on race in the assignment process by pairing neighborhoods with particular schools and creating a type of neighborhood/regional school model. Under the Urban League plan, preference initially would be given to students choosing a school in their paired region, and the existing racial tiebreaker would be demoted from second to third in the process of resolving any remaining oversubscription. The plan also suggested adding an eleventh high school.
Board members testified that they rejected the plan because of the high value the District places on parental and student choice. Moreover, given Seattle's segregated housing patterns, by prioritizing a neighborhood/regional school model where students are assigned to schools close to their homes, the Urban League plan did not sufficiently ensure the achievement of the District's compelling interests in racial diversity and avoidance of racial concentration or isolation. As one member of the School Board testified, "[it] would become Controlled Choice all over again. That's basically what Controlled Choice was, [ ] a regional plan; it controlled your options by using regions or geography." It was therefore permissible for the District to reject a plan that neither comported with its priorities nor achieved its compelling interests.

iii. Lottery

Parents additionally contend in this court that the District should have considered using a lottery to assign students to the oversubscribed high schools. As an initial matter, we note that Parents did not argue before the district court that a lottery was a workable race-neutral alternative that would achieve the Districts' compelling interests. Parents now argue on appeal, however, that a lottery would achieve the District's compelling interests without having to resort to the race-based tiebreaker. They ask us to assume that because approximately 82 percent of all students want to attend one of Seattle's oversubscribed schools, the makeup of this 82 percent, as well as that of the applicant pool for each school, mirrors the demographics of the District (60 percent white and 40 percent nonwhite). Employing this assumption, Parents also ask us to assume that a random lottery drawing from this pool would produce a student body in each of the oversubscribed schools that falls within the District's 1190 15 percent plus or minus variance. These assumptions, however, are not supported 0907 indeed, are undercut *1190 by 0907 the factual record. For example, Superintendent Olchefske explained that District patterns indicate that more people choose schools close to home. That would mean that the pool of applicants would be skewed in favor of the demographic of the surrounding residential area. That is, the applicant pool for the north area oversubscribed high schools would have a higher concentration of white students and the applicant pool for the south area oversubscribed high school would have a higher concentration of nonwhite students. Thus, random sampling from such a racially skewed pool would produce a racially skewed student body. As one Board member testified, a lottery was not a viable alternative because "[i]f applicants are overwhelmingly majority and you have a lottery, then your lottery 0907 the pool of your lottery kids are going to be overwhelmingly majority. We have a diversity goal."
Although the District has the burden of demonstrating that its Plan is narrowly tailored, see Gratz, 539 U.S. at 270, 123 S.Ct. 2411, it need not "exhaust[ ] every conceivable race-neutral alternative." Grutter, 539 U.S. at 339, 123 S.Ct. 2325. Parents' belated and bald assertion that a lottery could achieve the District's compelling interests, without any evidence to support their claim, fails to demonstrate that a lottery is a viable race-neutral alternative. See id. at 340, 123 S.Ct. 2325 (dismissing the race-neutral alternative of "percentage plans," advocated by the United States in an amicus brief, because the "United States [did] not . . . explain how such plans could work for graduate and professional schools"); Comfort, 418 F.3d at 23 (noting that Lynn rejected the use of a lottery in place of the race-based tiebreaker and holding that "Lynn must keep abreast of possible alternatives as they develop . . . but it need not prove the impracticability of every conceivable model for racial integration") (internal citation omitted).

c. The District's use of race

The dissent posits variables the District could use instead of race, for example, embracing the San Francisco school district's approach as a possible model for integration that would meet the dissent's criteria. Bea, J., dissenting, infra. at 1218, n. 26. Perhaps San Francisco has experienced success (however that school district defines it) in its multi-variable plan 0907 the details and evaluations of which are not in the record. The District is free to consider the San Francisco model when it engages in the annual review of its own Plan. However, even assuming that San Francisco's plan is working, that does not mean that it must be used by other cities in other states. Much can be gained from the various states employing locally appropriate means to achieve desirable ends. In our system, where states are considered laboratories to be used to experiment with myriad approaches to resolving social problems, we certainly should not punish one school district for not adopting the approach of another. Justice Brandeis said it well,

1191

There must be power in the States and the Nation to remould, through experimentation, our economic practices and institutions to meet changing social and economic needs. . . . To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.

*1191 New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 76 L.Ed. 747 (1932) (Brandeis, J., dissenting).
In sum, the District made a good faith effort to consider feasible race-neutral alternatives and permissibly rejected them in favor of a system involving a sibling preference, a race-based tiebreaker and a proximity preference. Over the long history of the District's efforts to achieve desegregated schools, it has experimented with many alternatives, including magnet and other special-interest programs, which it continues to employ, and raceconscious districting. But when a racially diverse school system is the goal (or racial concentration or isolation is the problem), there is no more effective means than a consideration of race to achieve the solution. Even Parents' expert conceded that, "if you don't consider race, it may not be possible to offer an integrated option to students.... [I]f you want to guarantee it you have to consider race." As Superintendent Olchefske stated, "when diversity, meaning racial diversity, is part of the educational environment we wanted to create, I think our view was you took that issue head on and used 0907 you used race as part of the structures you developed." The logic is self-evident: When racial diversity is a principal element of the school district's compelling interest, then a narrowly tailored plan may explicitly take race into account.[34]Cf. Hunter v. Regents of Univ. of Cal., 190 F.3d 1061, 1067 (9th Cir.1999) (upholding as narrowly tailored the admissions policy of an elementary school 0907 operated as a research laboratory 0907 that explicitly considered race in pursuit of a racially balanced research sample).
4. Undue Harm
A narrowly tailored plan ensures that no member of any racial group is unduly harmed. Grutter, 539 U.S. at 341, 123 S.Ct. 2325. Parents argue that every student who is denied his or her choice of schools because of the integration tiebreaker suffers a constitutionally significant burden. We agree with the Supreme Court of Washington, however, in its assessment that the District's Plan imposes a minimal burden that is shared equally by all of the District's students. Parents IV, 72 P.3d at 159-60 (noting that the burden of not being allowed to attend one's preferred school is shared by all students equally). As that court noted, it is well established that "there [is] no right under Washington law to attend a local school or the school of the student's choice." Id. at 159. [35] Indeed, public schools, unlike universities, have a tradition of compulsory assignment. See Bazemore v. Friday, 478 U.S. 385, 408, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986) (White, J., concurring) (noting that "school boards customarily have the power to create school attendance areas and otherwise designate the school that particular students may attend"). When an applicant's qualifications are not under consideration at all, there is no notion that one student is entitled to a place at any particular school. See Comfort, 418 F.3d at 20 ("The denial of a transfer under the [District's] Plan is ... markedly different from the denial of a spot at a unique or selective educational institution.").
1192 *1192 Moreover, it is undisputed that the race-based tiebreaker does not uniformly benefit one race or group to the detriment of another. At some schools, white students are given preference over nonwhite students, and, at other schools, nonwhite students are given preference over white students. For example, in the 2000-01 school year, 89 more white students were assigned to Franklin, one of Seattle's most popular schools, than would have been assigned absent the tiebreaker; 107 more nonwhite students were assigned to Ballard, another of Seattle's most popular schools, than would have been assigned absent the tiebreaker; 27 more nonwhite students were assigned to Nathan Hale than would have been assigned absent the tiebreaker; and 82 more nonwhite students were assigned to Roosevelt than would have been absent the tiebreaker.[36]
In sum, because (1) the District is entitled to assign all students to any of its schools, (2) no student is entitled to attend any specific school and (3) the tiebreaker does not uniformly benefit any race or group of individuals to the detriment of another, the tiebreaker does not unduly harm any students in the District.
5. Sunset Provision
A narrowly tailored plan must be limited not only in scope, but also in time. Grutter, 539 U.S. at 342, 123 S.Ct. 2325. The Court held in Grutter that this durational requirement can be met by "periodic reviews to determine

whether racial preferences are still necessary to achieve student body diversity." Id. The District's Plan includes such reviews. It revisits the Plan annually and has demonstrated its ability to be responsive to parents' and students' choice patterns and to the concerns of its constituents. For example, in 2000, when a higher than normal number of students selected the same schools, the Board responded by increasing the race-based trigger from 10 percent to a 15 percent deviation from the school population, adopting the thermostat that turns off the tiebreaker as soon as the school has come within the 15 percent plus or minus trigger point and by using the tiebreaker solely for the incoming ninth grade class.
With respect to the dissent's concern for a "logical end point," Bea, J., dissenting, infra. at 1217, like Justice O'Connor this court shares in the hope that "25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." Grutter, 539 U.S. at 343, 123 S.Ct. 2325. We expect that the District will continue to review its Plan, and we presume, as did the Court in Grutter, that school officials will demonstrate a good faith commitment to monitoring the continued need for the race-based tiebreaker and terminating its use when that need ends.[37]See 539 U.S. at 343, 123 S.Ct. 2325.
III. Conclusion
1193 For the foregoing reasons, we hold that the Plan adopted by the Seattle School *1193 District for high school assignments is constitutional and the use of the race-based tiebreaker is narrowly tailored to achieve the District's compelling interests. Accordingly, we AFFIRM the district court's judgment.
AFFIRMED.
KOZINSKI, Circuit Judge, concurring:
My colleagues in the majority and the dissent have written extensively and well. Given the exacting standard they are attempting to apply, I cannot say that either is clearly wrong. But there is something unreal about their efforts to apply the teachings of prior Supreme Court cases, all decided in very different contexts, to the plan at issue here. I hear the thud of square pegs being pounded into round holes. Ultimately, neither analysis seems entirely persuasive.
I start as did our eminent colleague Chief Judge Boudin of the First Circuit, in commenting on a highly-analogous plan adopted by the city of Lynn, Massachusetts:
[The] plan at issue in this case is fundamentally different from almost anything that the Supreme Court has previously addressed. It is not, like old-fashioned racial discrimination laws, aimed at oppressing blacks, e.g., Brown v. Bd. of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880); nor, like modern affirmative action, does it seek to give one racial group an edge over another (either to remedy past discrimination or for other purposes). E.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). By contrast to Johnson v. California, ___ U.S. ___, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005), the plan does not segregate persons by race. See also Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). Nor does it involve racial quotas. E.g., Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978).
Comfort v. Lynn Sch. Comm., 418 F.3d 1, 27 (1st Cir.2005) (Boudin, C.J., concurring).
These are meaningful differences. When the government seeks to use racial classifications to oppress blacks or other minorities, no conceivable justification will be sufficiently compelling. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 374, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). Similarly, when lawyers use peremptory challenges to exclude jurors of a particular race, thereby denying them the right to participate in government service, they must justify their challenges based on objective, non-racial considerations; justifications based on race will be rejected out of hand, no matter how compelling they might seem. See Batson v. Kentucky, 476 U.S. 79, 85-88, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). When government seeks to segregate the races, as in Johnson, the courts will look with great skepticism at the justifications offered in support of such programs, and will reject them when they reflect

assumptions about the conduct of individuals based on their race or skin color. See Johnson, 125 S.Ct. at 1154 (Stevens, J., dissenting) (concluding that California's policy of racially segregating inmates "supports the suspicion that the policy is based on racial stereotypes and outmoded fears about the dangers of racial integration"). When the government engages in racial gerrymandering, it not only keeps the races apart, but exacerbates racial tensions by making race a proxy for political power. See Shaw v. Reno, 509 U.S. 630, 648, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993) ("When a district obviously is created solely to effectuate the perceived 1194 common interests of one racial group, elected officials are more likely to believe that their primary *1194 obligation is to represent only the members of that group, rather than their constituency as a whole."). Programs seeking to help minorities by giving them preferences in contracting, see, e.g., Adarand, and education, see, e.g., Bakke, benign though they may be in their motivations, pit the races against each other, and cast doubts on the ability of minorities to compete with the majority on an equal footing.
The Seattle plan suffers none of these defects. It certainly is not meant to oppress minorities, nor does it have that effect. No race is turned away from government service or services. The plan does not segregate the races; to the contrary, it seeks to promote integration. There is no attempt to give members of particular races political power based on skin color. There is no competition between the races, and no race is given a preference over another. That a student is denied the school of his choice may be disappointing, but it carries no racial stigma and says nothing at all about that individual's aptitude or ability. The program does use race as a criterion, but only to ensure that the population of each public school roughly reflects the city's racial composition.
Because the Seattle plan carries none of the baggage the Supreme Court has found objectionable in cases where it has applied strict scrutiny and narrow tailoring, I would consider the plan under a rational basis standard of review. By rational basis, I don't mean the standard applied to economic regulations, where courts shut their eyes to reality or even invent justifications for upholding government programs, see, e.g., Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955), but robust and realistic rational basis review, see, e.g., City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985), where courts consider the actual reasons for the plan in light of the real-world circumstances that gave rise to it.
Under this standard, I have no trouble finding the Seattle plan constitutional. Through their elected officials, the people of Seattle have adopted a plan that emphasizes school choice, yet tempers such choice somewhat in order to ensure that the schools reflect the city's population. Such stirring of the melting pot strikes me as eminently sensible.
The record shows, and common experience tells us, that students tend to select the schools closest to their homes, which means that schools will reflect the composition of the neighborhood where they are located. Neighborhoods, however, do not reflect the racial composition of the city as a whole. In Seattle, "as in many other cities, minorities and whites often live in different neighborhoods." Comfort, 418 F.3d at 29 (Boudin, C.J., concurring). To the extent that students gravitate to the schools near their homes, the schools will have the same racial composition as the neighborhood. This means that student patterns of interacting primarily with members of their own race that are first developed by living in racially isolated neighborhoods will be continued and exacerbated by the school experience.
It is difficult to deny the importance of teaching children, during their formative years, how to deal respectfully and collegially with peers of different races. Whether one would call this a compelling interest or merely a highly rational one strikes me as little more than semantics. The reality is that attitudes and patterns of interaction are developed early in life and, in a multicultural and diverse society such as ours, there is great value in developing the ability to interact successfully with individuals who are very different from oneself. It is important for the individual student, to be sure, but it is also vitally important for us as a society.
1195 *1195 It may be true, as the dissent suggests, that students are influenced far more by their experiences in the home, church and social clubs they attend outside of school. But this does not negate the fact that time spent in school and on school-related activities, which may take up as much as half of a student's waking hours, nevertheless has a significant impact on that student's development. The school environment forces students both to compete and cooperate in the classroom, as well as during extracurricular activities ranging from football to forensics. Schoolmates often become friends, rivals and romantic partners; learning to deal with individuals of

different races in these various capacities cannot help but foster the live-and-let-live spirit that is the essence of the American experience. I believe this is a rational objective for an educational system 0907every bit as rational as teaching the three Rs, advanced chemistry or driver's education. Schools, after all, don't simply prepare students for further education, though they certainly can and should do that; good schools prepare students for life, by instilling skills and attitudes that will serve them long after their first year of college.
To borrow Judge Boudin's words once again, the plan here is "far from the original evils at which the Fourteenth Amendment was addressed.... This is not a case in which, against the background of core principles, all doubts should be resolved against constitutionality." Comfort, 418 F.3d at 29 (Boudin, C.J., concurring). I am acutely mindful of the Supreme Court's strong admonition only last Term that any and all racial classifications must be adjudged under the strict scrutiny standard of review. See Johnson, 125 S.Ct. at 1146 (citing cases). But the Supreme Court's opinions are necessarily forged by the cases presented to it; where the case at hand differs in material respects from those the Supreme Court has previously decided, I would hope that those seemingly categorical pronouncements will not be applied without consideration of whether they make sense beyond the circumstances that occasioned them.
When the Supreme Court does review the Seattle plan, or one like it, I hope the justices will give serious thought to bypassing strict0907and almost always deadly0907scrutiny, and adopt something more akin to rational basis review. Not only does a plan that promotes the mixing of races deserve support rather than suspicion and hostility from the judiciary, but there is much to be said for returning primacy on matters of educational policy to local officials. Long past is the day when losing an election or a legislative vote on a hotly contested issue was considered the end of the matter0907at least until the next election when the voters might "throw the rascals out." Too often nowadays, an election or a vote is a mere precursor to litigation, with the outcome of the dispute not known until judges decide the case many years later.
Whatever else the strict scrutiny standard of review may do, it most certainly encourages resort to the courts and often delays implementation of a program for years. The more complex and exacting the standard of review, the more uncertain the outcome, and the greater are the incentives for the parties to bloat the record with depositions, expert reports, exhibits, documents and various other materials they hope will catch the eye of the judges who ultimately decide the issue. This is a perfectly fine example, the litigation having taken over five years so far, generating 11 published opinions from the 24 judges who have considered the matter in the federal and state courts. In the meantime, the plan was put on hold, and at least one class has entered and will have completed its entire high school career without ever being affected by it.
1196 *1196 While it's tempting to adopt rules of law that give us the ultimate say on hotly contested political questions, we should keep in mind that we are not infallible, nor are we the repository of ultimate wisdom. Elected officials, who are much closer to ground zero than we are0907and whose political power ebbs and flows with the approval of the voters0907understand the realities of the situation far better than we can, no matter how many depositions and expert reports we may read in the quiet of our chambers. It therefore behooves us to approach issues such as those presented here with a healthy dose of modesty about our ability to understand the past or predict the future. It should make us chary about use of the strict scrutiny standard of review, which proclaims us the ultimate arbiters of the issue and gives those who oppose the policy in question every incentive to turn litigation, to paraphrase Clausewitz, into a continuation of politics by other means.
To resort to Chief Judge Boudin's words one last time, "we are faced with a local experiment, pursuing plausible goals by novel means that are not squarely condemned by past Supreme Court precedent. The problems that the ... plan addresses are real, and time is more likely than court hearings to tell us whether the solution is a good one...." Comfort, 418 F.3d at 29 (Boudin, C.J., concurring). I share Judge Boudin's preference for resolving such difficult issues by trial and error in the real world, rather than by experts jousting in the courtroom. When it comes to a plan such as this a 0907 plan that gives the American melting pot a healthy stir without benefitting or burdening any particular group0907I would leave the decision to those much closer to the affected community, who have the power to reverse or modify the policy should it prove unworkable. It is on this basis that I would affirm the judgment of the district court.
BEA, Circuit Judge, with whom Circuit Judges KLEINFELD, TALLMAN and CALLAHAN join dissenting:

I respectfully dissent.
At the outset, it is important to note what this case is not about. The idea that children will gain social, civic, and perhaps educational skills by attending schools with a proportion of students of other ethnicities and races, which proportion reflects the world in which they will move, is a notion grounded in common sense. It may be generally, if not universally, accepted.[1] But that is not the issue here. The issue here is whether this idea may be imposed by government coercion, rather than societal conviction; whether students and their parents may choose, or whether their government may choose for them.[2]
1197 In the Seattle School District ("District"), some schools are oversubscribed *1197 and in higher demand than others, so the District uses a tiebreaker to assign some ninth-grade students, and not others, to those schools. The tiebreaker operates solely on the basis of the student's race. In fact, rather than differentiating between African-American, Asian-American, Latino, Native American, or Caucasian students, the tiebreaker classifies students only as "white" or "nonwhite."[3] The District seeks a racially balanced student body of 40% white, 60% nonwhite children; the tiebreaker excludes white or nonwhite students from an oversubscribed school if their admission will not further that preferred ratio.
Notwithstanding the majority's fervent defense of that plan, the District is engaged in simple racial balancing, which the Equal Protection Clause forbids. The majority can arrive at the opposite conclusion only by applying a watered-down standard of review 0907 improperly labeled "strict scrutiny" 0907 which contains none of the attributes common to our most stringent standard of review. I respectfully disagree with the majority's gentle endorsement of the racial tiebreaker and would instead hold the District violates the Equal Protection Clause whenever it excludes a student from a school solely on the basis of race.
I.
As an introductory note, I call attention to the majority's frequent misuse of the terms "segregation," "segregated schools," and "segregated housing patterns." See, e.g., Majority op. at 1166, 1167. As a perfectly understandable rhetorical ploy, the majority continually uses those charged terms when there has been no such segregation in the Seattle schools in any textual or legal sense.[4] Throughout the desegregation cases, the U.S. Supreme Court stated that only the remediation of de jure segregation justified the use of racial classifications. Freeman v. Pitts, 503 U.S. 467, 494, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992). "[T]he differentiating factor between de jure segregation and so-called de facto segregation ... is purpose or intent to segregate." Keyes v. School Dist. No. 1, 413 U.S. 189, 208, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973) (emphasis in original); see Swann v. CharlotteMecklenburg Bd. of Educ., 402 U.S. 1, 17, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) ("`Desegregation' means the assignment of students to public schools and within such schools without regard to their race, color, religion, or national origin, but `desegregation' shall not mean the assignment of students to public schools in order to overcome racial imbalance.") (emphasis added).
"Segregate" is a transitive verb. It requires an actor to do an act which effects segregation. See OXFORD ENGLISH DICTIONARY (2d ed.1989) ("segregate, v. 1. a. trans.: To separate (a person, a body or class of persons) from the general body, or from some particular class; to set apart, isolate, seclude").[5] Instead of de jure segregation, what the majority describes is racial imbalance in the District's schools and Seattle's residential makeup.
1198 *1198 Of course, it is much easier to argue for measures to end "segregation" than for measures to avoid "racial imbalance." Especially is this so in view of the U.S. Supreme Court's frequent pronouncements that "racial balancing" violates the Equal Protection Clause. See Grutter v. Bollinger, 539 U.S. 306, 330, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003) ("[O]utright racial balancing ... is patently unconstitutional."); Freeman, 503 U.S. at 494, 112 S.Ct. 1430 ("Racial balance is not to be achieved for its own sake."); Regents of the Univ. of Calif. v. Bakke, 438 U.S. 265, 307, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (Powell, J.) ("If petitioner's purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected not as insubstantial but as facially invalid. Preferring members of any one

group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids.").
It should be remembered by the reader of the majority opinion that one can no more "segregate" without a person actively doing the segregation than one can separate an egg without a cook.
Like Judge Boudin,[6] in his concurring opinion Judge Kozinski tries to distinguish past Supreme Court cases involving racial discrimination by focusing on the effects of the discrimination, rather than the fact of the discrimination.
This creates for them two categories different from the effects of the Seattle plan: (1) the effects of other race discrimination plans were much worse than Seattle's and (2) the effects were visited on certain races.
But the difference reflected in these two categories are irrelevant. "[T]here is no de minimis exception to the Equal Protection Clause. Race discrimination is never a `trifle.'" Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 712 (9th Cir.1997). Second, the Fourteenth Amendment protects individual rights, not the rights of certain races or groups.
Further, that a "plan does not segregate persons by race"[7] does not justify it in refusing school admission to a qualified scholar because he does not belong to a particular race. There was no segregation by race at Cal Davis medical school, when Bakke was improperly refused admission. See Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750.
Also, it is quite accurate to say the Seattle plan does not "involve racial quotas."[8] The numerical quota is the percentage by which the school in question's racial composition differs from the school district's target.[9] Not calling it a quota, does not make it something other. "A rose by any other name ... etc."
Perhaps the Supreme Court will adopt a "rational relation" basis for review of race-based discrimination by government, based on the concurrence's view of what is "realistic" or what are "real-world circumstances."[10] As 1199 indicated above, however, it certainly has given no such indication.[11]*1199 But if it does, one doubts that it will do so based on a "melting pot" metaphor.
Up to now, the American "melting pot" has been made up of people voluntarily coming to this country from different lands, putting aside their differences and embracing our common values. To date it has not meant people who are told whether they are white or non-white, and where to go to school based on their race.
The suggestion that local political forces should decide when to employ racial discrimination in the allocation of governmental resources is certainly nothing new in American history. Such "local option" discrimination was adopted in the Missouri Compromise of 1820, which established the Mason-Dixon line, and the Compromise of 1850. But since then, the Civil War, the post-war Amendments to the Constitution and Brown v. Bd. of Ed. of Topeka, Shawnee County, Kan., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) have made racial discrimination a matter of national concern and national governance.
As noted in the opening lines of this dissenting opinion, it certainly is rational to believe that racial balancing in schools achieves better racial socialization and, as a result, better citizens. The issue is not that, but whether what is rational can be achieved by compulsory racial discrimination by the State.
II.
I agree with the majority that the District's use of the racial tiebreaker is a racial classification, and all racial classifications are subject to "strict scrutiny" review under the Equal Protection Clause. See Majority op. at 1173. Yet the majority conceives of strict scrutiny as some type of relaxed, deferential standard of review. I view it differently.

"No State shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const., amend. XIV, § 1. The right to equal protection is an individual one, and so where federal or state governments classify a person according to race "a 0907 group classification long recognized as in most circumstances irrelevant and therefore prohibited" we 0907 review such state action under the most "detailed judicial inquiry" 0907that is, under strict scrutiny. Grutter, 539 U.S. at 326, 123 S.Ct. 2325; see Miller v. Johnson, 515 U.S. 900, 911, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995) ("At the heart of the Constitution's guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.)" (internal quotation marks omitted).
The right to equal protection is held equally among all individuals. "[A]ll racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized." Adarand, 515 U.S. at 224, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (emphasis added). Strict scrutiny applies regardless whether the racial classifications are invidious or benign and "is not dependent on the race of those burdened or benefited by a particular classification." Gratz, 539 U.S. at 270, 123 S.Ct. 2411; see Johnson, 125 S.Ct. at 1146 ("We have insisted on strict scrutiny in every context, even for so-called `benign' racial classifications, such as race-conscious university admissions policies, race-based preferences in government contracts, and race-based districting intended to improve minority representation.") (internal citations omitted). We require such a demanding inquiry "to `smoke out' illegitimate 1200 uses of race by assuring *1200 that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool." Adarand, 515 U.S. at 226, 115 S.Ct. 2097.
The right to equal protection provides a liberty; it represents freedom from government coercion based upon racial classifications. See Miller, 515 U.S. at 904, 115 S.Ct. 2475 (the Equal Protection Clause's "central mandate is racial neutrality in governmental decisionmaking"). Thus, under strict scrutiny, all racial classifications by the government, regardless of purported motivation, are "inherently suspect," Adarand, 515 U.S. at 223, 115 S.Ct. 2097, and "presumptively invalid," Shaw v. Reno, 509 U.S. 630, 643-44, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993). They are permissible only where the government proves their use is "narrowly tailored to further compelling governmental interests." Grutter, 539 U.S. at 326, 123 S.Ct. 2325.
It follows, then, that the government carries the burden of proving that its use of racial classifications satisfies strict scrutiny. Johnson, 125 S.Ct. at 1146 n. 1 ("We put the burden on state actors to demonstrate that their racebased policies are justified."); Gratz, 539 U.S. at 270, 123 S.Ct. 2411; W. States Paving Co., Inc. v. Wash. State Dep't of Transp., 407 F.3d 983, 990 (9th Cir.2005) ("The burden of justifying different treatment by ethnicity ... is always on the government.") (quoting Monterey Mech. Co. v. Wilson, 125 F.3d 702, 713 (9th Cir.1997)).
Despite this formidable standard of review, the majority does not hesitate to endorse the District's use of the racial tiebreaker. Rather than recognizing the protections of the individual against governmental racial classifications, the majority instead endorses a rigid racial governmental grouping of high school students for the purpose of attaining racial balance in the schools. For the reasons expressed below, I do not share in the majority's confidence that such a plan is constitutionally permissible.
III.
I consider first whether the District has asserted a "compelling governmental interest," the first element of the strict scrutiny test. The District contends it has a valid compelling governmental interest in using racial balancing to achieve "the educational and social benefits of racial ... diversity" within its high schools and avoid "racially concentrated" schools. The District argues its interest will enhance student discussion of racial issues in high school and will foster cross-racial socialization and understanding, both in school and later in the students' lives.
The U.S. Supreme Court has "declined to define compelling interest or to tell [the lower courts] how to apply that term." Hunter v. Regents of the Univ. of Calif., 190 F.3d 1061, 1070 n. 9 (9th Cir.1999) (Beezer, J., dissenting); Mark R. Killenbeck, Pushing Things Up to Their First Principles: Reflections on the Values of Affirmative Action, 87 Calif. L.Rev. 1299, 1349 (1999) (the definition of a compelling interest "is admittedly imprecise. The Supreme Court has never offered a workable definition of the term ... and is unlikely ever to do so, preferring to approach matters on a case-by-case basis").

The majority is correct in noting the U.S. Supreme Court has never endorsed "racial balancing" as a "compelling interest." Indeed, throughout the history of strict scrutiny, the Supreme Court has rejected as invalid all such asserted compelling interests, save for two exceptions. With respect, the majority errs in creating a third.
A.
The Court has endorsed two race-based compelling governmental interests in the public education context. First, 1201 the Court *1201 has allowed racial classifications to remedy past racial imbalances in schools resulting from past
de jure segregation. Freeman, 503 U.S. at 494, 112 S.Ct. 1430. Second, the Court has allowed undergraduate and graduate universities to consider race as part of an overall, flexible assessment of an individual's characteristics to attain student body diversity. Grutter, 539 U.S. at 328, 123 S.Ct. 2325; Gratz, 539 U.S. at 268-69, 123 S.Ct. 2411.
Besides those two valid compelling interests, the Court has struck down every other asserted race-based compelling interest that has come before it. See Shaw v. Hunt, 517 U.S. 899, 909-12, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996) (rejecting racial classifications to "alleviate the effects of societal discrimination" in the absence of findings of past discrimination, and to promote minority representation in Congress); Richmond v. J.A. Croson Co., 488 U.S. 469, 511, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (plurality) (rejecting racial classifications in the awarding of public construction contracts in the absence of findings of past discrimination); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 274-76, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) (rejecting racial classifications in a school district's teacher layoff policy when offered as a means of providing minority role models for its minority students and as a means of alleviating past societal discrimination); Bakke, 438 U.S. at 310-11, 98 S.Ct. 2733 (Powell, J.) (rejecting the application of race-conscious measures to improve "the delivery of health-care services to communities currently underserved"). A crucial guiding point here 0907 and one elided entirely by the majority is 0907 the Court's consistent reiteration that "outright racial balancing ... is patently unconstitutional." See, e.g., Grutter, 539 U.S. at 330, 123 S.Ct. 2325.
Thus, we face a landscape littered with rejected asserted "compelling interests" requiring race-based determinations, but with two exceptions still standing. The first exception is inapplicable here because the Seattle schools have never been de jure segregated. See Freeman, 503 U.S. at 494, 112 S.Ct. 1430.
The second exception is also inapplicable, albeit not so directly acknowledged. At oral argument, the District conceded that it is not asserting the Grutter "diversity" interest; the majority recognizes this in stating the District's asserted interest is "significantly different" in some ways from the interest asserted in Grutter. Majority op. at 1176. Nonetheless, the majority concludes those differences are inconsequential because of the different 1202 "context"[12] between high schools and universities, *1202 and the District's asserted interest is a compelling governmental interest in its own right.
Not so. The very differences between the Grutter "diversity" interest and the District's asserted interest illustrate why the latter violates the Equal Protection Clause as opposed to the former. The Grutter "diversity" interest focuses upon the individual, of which race plays a part, but not the whole. The District's asserted interest, however, focuses only upon race, running afoul of equal protection's focus upon the individual.
B.
In Grutter and Gratz, the Court made clear that the valid compelling interest in "diversity" does not translate into a valid compelling interest in "racial diversity." The "diversity" interest
is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups.... Rather, the diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.

Grutter, 539 U.S. at 324-25, 123 S.Ct. 2325 (emphasis added); see Gratz, 539 U.S. at 272-73, 123 S.Ct. 2411 ("[T]he critical criteria [in a permissible race-conscious admissions program] are often individual qualities or experiences not dependent upon race but sometimes associated with it.").
The Grutter "diversity" interest focuses upon the individual, which can include the applicant's race, but also includes other factors, such as the applicant's family background, her parent's educational history, whether she is fluent in other languages, whether she has overcome adversity or hardship, or whether she has unique athletic or artistic talents. See 539 U.S. at 338, 123 S.Ct. 2325. Such a focus is consistent with the Equal Protection Clause, which protects the individual, not groups.
But here, the District's operation of the racial tiebreaker does not consider the applicant as an individual. To the contrary, the racial tiebreaker considers only whether the student is white or nonwhite. While the Grutter "diversity" interest pursues genuine diversity in the student body (of which race is only a single "plus" factor), the District pursues an interest which considers only racial diversity, i.e., a predefined grouping of races in the 1203 District's schools.[13] Such an interest is not a valid *1203 compelling interest; it is simple racial balancing, forbidden by the Equal Protection Clause. See id. at 330, 123 S.Ct. 2325 (stating a government institution's interest "to assure within its student body some specified percentage of a particular group merely because of its race ... would amount to outright racial balancing, which is patently unconstitutional").
Grutter emphasized the dangers resulting from lack of an individualized consideration of each applicant. Observing that the Michigan Law School sought an unquantified "critical mass" of minority students to avoid only token representation, rather than some defined balance, id. at 330, 123 S.Ct. 2325, the Court reasoned the law school's individualized focus on students forming that "critical mass" would avoid perpetuating the stereotype that all "minority students always ... express some characteristic minority viewpoint on any issue," id. at 333, 123 S.Ct. 2325.
But here, the District's concept of racial diversity is a predetermined, defined ratio of white and nonwhite children. The racial tiebreaker works to exclude white students from schools that have a 50-55% white student body (depending on the tiebreaker trigger used in a particular year), and works to exclude nonwhite students from schools with a 70-75% nonwhite student body (depending on the tiebreaker trigger used). Thus, the District's concept of racial diversity does not permit a school with a student body that is too white, or a school with a student body that is too nonwhite.
The District argues its concept of racial diversity is necessary to foster classroom discussion and cross-racial socialization. That argument, however, is based on the stereotype that all white children express traditional white viewpoints and exhibit traditional white mannerisms; all nonwhite children express opposite nonwhite viewpoints and exhibit nonwhite mannerisms, and thereby white and nonwhite children will better understand each other. Yet there is nothing in the racial tiebreaker to ensure such viewpoints and mannerisms are represented within the preferred student body ratio. As noted in Grutter, the only way to achieve diverse viewpoints and mannerisms is to look at the individual student. White children have different viewpoints and backgrounds than other white children; the same goes for nonwhite children; and some white children have the same viewpoints and backgrounds as some nonwhite children. The assumption that there is a difference between individuals just because there is a difference in their skin color is a stereotype in itself, nothing more.[14]
The District also claims it must use the racial tiebreaker to avoid racially imbalanced schools, which may result in schools with large white or nonwhite student bodies and in which the supposed benefits from the District's concept of racial diversity will not occur. This theory, however, presents another racial stereotype, which assumes 1204 there is something wrong with a school that has a heavy nonwhite student body population, or something better *1204 about a school that has a heavy white student body population. See Missouri v. Jenkins, 515 U.S. 70, 122, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995) (Thomas, J., concurring) ("After all, if separation itself is a harm, and if integration therefore is the only way that blacks can receive a proper education, then there must be something inferior about blacks. Under this theory, segregation injures blacks because blacks, when left on their own, cannot achieve. To my way of thinking, that conclusion is the result of a jurisprudence based upon a theory of black inferiority.").

Besides the District's reliance on racial stereotypes, there is good reason categorically to forbid racial balancing. The process of classifying children in groups of color, rather than viewing them as individuals, encourages "notions of racial inferiority" in both white and nonwhite children and incites racial hostility. See Grutter, 539 U.S. at 328, 123 S.Ct. 2325. Indeed, those risks are particularly great here because of the blunt nature of the racial tiebreaker. The District's racial grouping of students, either as white or nonwhite, assumes that each minority student is the same, regardless whether he is African-American, Asian-American, Latino, or Native American; the only difference noted by the District is that the minority student is not white.[15] The District thus "conceives of racial diversity in simplistic terms as a dichotomy between white and nonwhite, as if to say all nonwhites are interchangeable." Parents Involved in Cmty. Schs. v. Seattle Sch. Dist., No. 1, 149 Wash.2d 660, 72 P.3d 151, 169 n. 5 (2003) (Sanders, J., dissenting). I join my colleague on the Washington Supreme Court in observing that "[a]s a theory of racial politics, this view is patently offensive and as a policy to promote racially diverse schools, wholly inadequate." Id.

Unlike a voluntary decision by parents to expose their children to individuals of different races or background, the District classifies each student by skin color and excludes certain students from particular schools 0907solely on the basis of race0907to ensure those schools remain racially balanced. Even if well-intentioned, the District's use of racial classifications in such a stark and compulsory fashion risks perpetuating the same racial divisions which have plagued this country since its founding:

1205

Race is perhaps the worst imaginable category around which to organize group competition and social relations more generally. At the risk of belaboring the obvious, racial categories in law have played an utterly pernicious and destructive role throughout human history. This incontrovertible fact should arouse wonder ... at the hubris of those who imagine that we can distinguish clearly enough between invidious and benign race discrimination to engrave this distinction into our constitutional order. Vast human experience mocks this comforting illusion, as does the fact that most Americans, including many minorities, think racial preferences are invidious, not benign. Whether benignly intended or not, using the category of race0907which affirmative action proponents oddly depict as socially constructed and primordial and immutable to 0907 *1205 distribute advantage and disadvantage tends to ossify the fluid, forward-looking political identities that a robust democratic spirit inspires and requires.

Peter H. Schuck, Affirmative Action: Past, Present, and Future, 20 Yale L. & Pol'y Rev. 1, 92-93 (2002).

We should not minimize these shadows that are cast over the supposed benefits of the District's asserted interest. The District's stark racial classifications not only offend intrinsic notions of individuality, they even suggest principles opposite to what the District claims to seek. Although the District contends it uses the racial tiebreaker for good, i.e., to foster cross-racial socialization and understanding, the District's concept of racial diversity also suggests other principles which many may find objectionable, especially when taught to children:

While a public law preference does express a certain kind of compassion for and commitment to the preferred groups, other signals dominate its message 0907 among them, that American society thinks it just to group people by race and ethnicity, to treat those groups monolithically, and to allocate precious resources and opportunities accordingly; that it holds equal treatment and individual merit as secondary, dispensable ideals; that the preferred groups cannot succeed without special public favors; that such favors do not stigmatize them in the minds of fair-minded others; that those who oppose preferences thereby oppose the aspirations of the preferred groups; and that society can assuage old injustices by creating new ones. When public law says such things, it speaks falsely, holds out vain promises, and brings itself into disrepute.

Id. at 87-88.

The District's asserted interest may be supported by noble goals. But the stereotypes on which it is based, and the risks that it presents, make that interest far from compelling.

C.

The sociological evidence presented by the District, relied upon strongly by the majority, does not change my view. The majority discusses much of the evidence that supports the District's position that racially balanced schools foster cross-racial socialization and understanding in school and later in the students' lives. Majority op. at 1174-1175. Yet the majority puts aside the other evidence suggesting there is no definitive agreement as to the beneficial effects of racial balance in K-12 schools, that the benefits attributed to racially balanced schools are often weak, and that any benefits do not always have a direct correlation to racial balance. Yet again, a private citizen is free to accept one body of opinion and reject another in deciding to send his child to a particular school. Is the state similarly privileged when required to determine that its claimed goal is a "compelling interest"? One would think that to be "compelling" there would be no room for doubt of the need for the measure. That is certainly not the case here.

For example, a source provided by the District states that "family background has a significantly stronger effect on student achievement than any other single school factor or constellation of school factors, including school racial and ethnic composition." [SER 182.] Another source presented by the District states that court-ordered desegregation (i.e., a court-ordered breakup of a de jure segregated student body) resulted in only minimal benefits:

1206

[R]esearch suggests that desegregation has had some positive effect on the reading skills of African American youngsters. The effect is not large, nor does it occur in all situations, but a modest measurable effect does seem apparent. *1206 Such is not the case with mathematical skills, which seem generally unaffected by desegregation. Second, there is some evidence that desegregation may help to break what can be thought of as a generational cycle of segregation and racial isolation. Although research on this topic is scant and often marred by unavoidable flaws, evidence has begun to accumulate that desegregation may favorably influence such adult outcomes as college graduation, income, and employment patterns. The measured effects are often weak ....

[SER 205, 207-208.]

That source concludes that "[t]he evidence regarding the impact of desegregation on intergroup relations is generally held to be inconclusive and inconsistent." [SER 208.]. See Grutter, 539 U.S. at 364-65, 123 S.Ct. 2325 (Thomas, J., dissenting) (collecting studies suggesting black students perform at higher levels of achievement at historically black colleges); David I. Levine, Public School Assignment Methods after Grutter and Gratz: The View from San Francisco, 30 Hastings Const. L.Q. 511, 536 (2003) (noting that a high school's focus on racial balance misses the "key element" in the context of education, i.e., that "the life chances of students are improved only with economic integration").[16]

The serious risks presented by racial classifications counteract the marginal benefits provided by racial balancing. Courts have long recognized racial classifications promote "notions of racial inferiority and lead to a politics of racial hostility." See Grutter, 539 U.S. at 328, 123 S.Ct. 2325; Michael Perry, Modern Equal Protection, 79 Colum. L.Rev. 1023, 1048 (1979) ("Affirmative action "`inevitably foments racial resentment and thereby strains the effort to gain wider acceptance for the principle of moral equality of the races.'" "). Other studies suggest that where racial classifications are a means of achieving racial balance, academic achievement by minorities is hindered, and racial tensions are riled:

1207

In a culture that ardently affirms the principles of individual freedom, merit, and equality of opportunity, [the] demoralization and anger [precipitated by being victim to government-imposed racial classifications] must be counted as a very large social cost. It is no less a *1207 cost because it is borne by whites, and often less privileged whites at that. If these principles make it unfair to impose this cost, the fact that the unfairness is spread across a large group of people may not make it any more palatable. In fact, diffusing the unfairness in this way will simply increase the number of people who feel themselves aggrieved.

Schuck, supra, at 69.
But despite the inconsistencies in the sociological evidence and the vivid risks of the District's asserted interest, the majority implicitly defers to the District's position. Grutter took a similar approach, emphasizing that its endorsement of the "diversity" interest relied in large part upon deference to the educational judgment of the Michigan Law School. 539 U.S. at 330, 123 S.Ct. 2325.
Yet perhaps to steal a line from the majority, the "context" here is different. We are not faced with a university's "academic freedom," which arises from "a constitutional dimension, grounded in the First Amendment, of educational autonomy," and which includes the freedom to select its student body. Id. We instead consider a public high school's admissions plan which admits or excludes students from particular schools solely on the basis of their race. For several reasons, we should not defer to such a plan.
First, other than for race-conscious university admissions based on holistic diversity, deference to a government actor is inconsistent with strict scrutiny. See Johnson, 125 S.Ct. at 1146 n. 1 (stating generally that "deference [by the courts in applying strict scrutiny] is fundamentally at odds with our equal protection jurisprudence"); id. at 1150 (stating the Supreme Court has "refused to defer to state officials' judgments on race ... where those officials traditionally exercise substantial discretion."). In Grutter, the Court deferred to the Michigan Law School's "diversity" interest because of the law school's "academic freedom" 0907 grounded in the First Amendment and including the law school's freedom to select its own student body 0907 and the law school's asserted need for diversity to achieve a "robust exchange of ideas" within its classrooms, a vital part of the law school's mission. 539 U.S. at 330, 123 S.Ct. 2325.
None of those same issues are implicated here. The "academic freedom" of a university allows it "to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study." Bakke, 438 U.S. at 312, 98 S.Ct. 2733 (Powell, J.). High schools do not have such similar freedoms. They cannot determine who may teach, at least when that determination is based upon racial grounds. See Wygant, 476 U.S. at 274-76, 106 S.Ct. 1842. They also cannot determine who may be admitted to study; when the government chooses to provide public education in secondary schools, it "must be made available to all on equal terms." See Plyler v. Doe, 457 U.S. 202, 221-23, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982). Further, there is no comparable line of U.S. Supreme Court cases affording high schools the special "[A]cademic freedom[s]" granted to universities by the First Amendment. See United States v. Fordice, 505 U.S. 717, 728-29, 112 S.Ct. 2727, 120 L.Ed.2d 575 (1992) ("a state university system is quite different in very relevant respects from primary and secondary schools."); Jay P. Lechner, Learning From Experience: Why Racial Diversity Cannot Be a Legally Compelling Interest in Elementary and Secondary Education, 32 SW. U.L.Rev. 201, 215 (2003) (stating the Supreme Court "has been less deferential to the discretion of elementary or secondary school officials in Equal Protection cases, in part because the Court has viewed school desegregation as serving social rather than 1208 educational goals. The Court has acknowledged that *1208 even the most important, delicate, and highly discretionary functions of state educators are subject to the limits of the Bill of Rights and subordinate to the Constitutional freedoms of the individual. Moreover, the educational benefits from diversity, if any, are much greater at the higher educational level because such benefits are greatly magnified by the learning that takes place outside the classroom 0907 in dormitories, social settings, and extracurricular activities 0907 as students must learn to live and work with persons of other races and ethnic backgrounds.") (internal quotation marks omitted).
Moreover, there is a crucial difference between the "robust exchange of ideas" theory referenced in Grutter and the District's claim that its interest "brings different viewpoints and experiences to classroom discussions and thereby enhances the educational process." [ER 237.] The District applies the racial tiebreaker only to entering ninth-grade students. [ER 253, 308.] It is self-evident that classroom discussion plays a significantly more vital role in universities with their typical dialectic or Socratic teaching method, than in ninth-grade high school courses with their typical didactic or rote teaching method.
Last, the District's claim that its asserted interest helps to foster cross-racial socialization and understanding later in the students' lives is a sociological judgment outside the expertise of the District's educators. Those external benefits are diffuse, manifest long after students leave the classroom, and cannot be measured with skills possessed uniquely by educators. Unlike Grutter, which deferred to the Law School on the basis that diversity in

the classroom was vital to its educational mission during the three-year law school curriculum, here, the District's asserted interest depends upon benefits only loosely linked to the District's educational mission and to take effect years after its schooling of the children, or entirely outside the expertise of its educators. Here, high school administrators and teachers are predicting what sociologists will find years later.
Strict scrutiny cannot remain strict if we defer to judgments not even within the particular expertise or observation of the party being scrutinized. Hence, deference is not due to the District regarding the benefits the District contends are attributable to its claimed interest.[17]
1209 *1209 In the absence of deference to the District's sociological evidence, the faults of the District's asserted interest come into sharper focus. It has none of the saving graces present in the Grutter holistic diversity interest. It perpetuates racial stereotypes and risks fomenting racial hostility. Last, the District enforces the interest through government compulsion in the starkest black and white terms, espousing the principle that race trumps the individual.
The sociological evidence presented by the District suggests that some benefits will accrue from racial balancing. To me, evidence of some benefits does not satisfy the District's burden of proving a compelling governmental interest, especially in light of the Supreme Court's frequent pronouncements that racial balancing itself is unconstitutional. Thus, viewed under the lens of strict scrutiny, and without the deference invoked in Grutter, the District's interest is simply not a compelling governmental interest. Hence, I would hold that the District's operation of the racial tiebreaker is an impermissible racial classification and violates the Equal Protection Clause.
IV.
Even if the District's asserted interest were a compelling governmental interest, the means used by the District must still be narrowly tailored to serve that interest. See Grutter, 539 U.S. at 333, 123 S.Ct. 2325. For argument's sake, I here assume, without conceding, the District has asserted a valid compelling governmental interest in using racial balancing to achieve "the educational and social benefits of racial ... diversity" within its high schools and to avoid "racially concentrated" schools. Yet even under that assumption, the District's use of the racial tiebreaker is not narrowly tailored to serve that interest.
The majority notes that Grutter set forth "five hallmarks of a narrowly tailored affirmative action plan: (1) individualized consideration of applicants; (2) the absence of quotas; (3) serious, good-faith consideration of race-neutral alternatives to the affirmative action program; (4) that no member of any racial group was unduly harmed; and (5) that the program had a sunset provision or some other end point." Majority op. at 1180. I agree with that general formulation. Yet the majority's application of those factors again evinces an improper deference to the District; such deference is ill suited for the searching inquiry needed under the narrow-tailoring prong of strict scrutiny. See Johnson, 125 S.Ct. at 1146 n. 1. I consider below whether the District's use of the racial tiebreaker is narrowly tailored to its asserted interest, and conclude that racial tiebreaker is not narrowly tailored.
1210 *1210 A.
The first narrow-tailoring factor requires the District to engage in an individualized consideration of each applicant's characteristics and qualifications. See Grutter, 539 U.S. at 337, 123 S.Ct. 2325. The importance of this factor is self-evident; individualized consideration serves the primary purpose of the Equal Protection Clause, which protects the individual from group classifications, especially those by race. See id. at 326, 123 S.Ct. 2325.
Yet the majority concludes that individualized consideration of each applicant is irrelevant here "because of the contextual differences between institutions of higher learning and public high schools." Majority op. at 1180. I could not disagree more.[18] By removing consideration of the individual from the narrow tailoring analysis, the majority threatens to read the Equal Protection Clause out of the Constitution. It is the very nature of equal protection to require individualized consideration when the government uses racial classifications: "the Fourteenth Amendment "protects persons, not groups."" Grutter, 539 U.S. at 326, 123 S.Ct. 2325 (quoting

Adarand, 515 U.S. at 227, 115 S.Ct. 2097) (emphasis in original). Grutter emphasized the importance of the individualized consideration of each applicant: in the context of a race-conscious university admissions program, such consideration
must remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application. The importance of this individualized consideration in the context of a race-conscious admissions program is paramount.
Id. at 337, 123 S.Ct. 2325 (emphasis added). The differences between university and secondary education do not justify denial of individualized equal protection of the law to secondary school students.
Individualized consideration of an applicant does not require an admissions program to be oblivious to race; the program may consider race, but in doing so, it must remain "flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight." Id. at 334, 123 S.Ct. 2325. There can be "no policy, either de jure or de facto, of automatic acceptance or rejection based on any single `soft' variable ... [such as the awarding of] mechanical, predetermined diversity `bonuses' based on race or ethnicity." Id. at 337, 123 S.Ct. 2325.
Here, the racial tiebreaker works to admit or exclude high school students from certain oversubscribed schools solely on the basis of their skin color. No other consideration affects the operation of the racial tiebreaker; when it operates, it operates to admit or exclude either a white or nonwhite student, depending upon how the admission will affect the preferred balance at the oversubscribed school. Such a program is precisely what Grutter warned against, and what Gratz held unconstitutional: a mechanical, predetermined policy "of automatic acceptance or rejection based on a[] single `soft' variable," that being the student's skin color. See id.
The racial tiebreaker's overbroad classification of students as "white" or "nonwhite" also runs counter to the required individualized consideration of each applicant. The District does not even consider the student's actual 1211 race. Instead, the *1211 District presumably places all Caucasian students into the "white" category, and then places all African-American, Latino, Asian-American, Pacific Islander and Native Americans into the "nonwhite" category. This puts aside the categorization of any individuals whose skin color does not correlate directly with the classifications. Although parents and students may identify their particular group on the registration materials, if they do not, the District will make the racial identification itself through visual inspection of the parent or student. Thus, a fair-skinned minority may wind up in the "white" category, or a darker-skinned Caucasian may wind up in the "nonwhite" category.
Courts have often recognized that the inclusion of all minorities within a "nonwhite" classification suggests the operation of a racial classification is not narrowly tailored. See Wygant, 476 U.S. at 284 n. 13, 106 S.Ct. 1842 (noting the "definition of minority to include blacks, Orientals, American Indians, and persons of Spanish descent further illustrates the undifferentiated nature of the plan"); Monterey Mech. Co., 125 F.3d at 714 (noting the inclusion of all minority races within a broad "minority" category serves as a "red flag[] signaling that the statute is not, as the Equal Protection Clause requires, narrowly tailored"). At the very least, a narrowly tailored program would require an individualized focus which would separate the student according to his or her correct race, rather than as a process of simple pigmental matching.
The majority concludes, however, that individualized consideration of each applicant is unnecessary because the District does not exclude any student from a public education by operation of the racial tiebreaker. The majority reasons that because all students are entitled to a public education in one of the District's schools, there is no competition in the District for admission to any of those schools, and thus no racial stigma could attach when a student is excluded from admission to one of the schools on the basis of his race. Majority op. at 1181-1182.
Yet the majority offers no explanation why, in the 2000-01 school year, 82% of the students selected one of the oversubscribed schools (i.e., the schools subject to the racial tiebreaker) as their first choice, while only 18% picked one of the undersubscribed schools as their first choice. Majority op. at 10-11. Clearly, the students' and their parents' "market" appraise some of the schools as providing a better education than the others. Even the

District's superintendent confirmed that the students' parents considered some of the schools to be of higher quality. [ER 534.]
It is common sense that some public schools are better than others. Parents often move into areas offering better school districts, and ubiquitous research guides compare the quality of public schools according to standardized test scores, program offerings, and the sort. It may be that soothing, if self-interested, bureaucratic voices sing a lullaby of equal educational quality in the District's schools. But the facts show that parents and children have voted with their feet in choosing some schools rather than others. The verdict of that "market" makes a hash out of such assurances by the District.
Thus, the District's operation of the racial tiebreaker in reality does limit access to a governmental benefit among certain students. The District insulates applicants belonging to certain racial groups from competition for admission to those schools perceived to be of higher quality. A narrowly tailored race-conscious admissions program "cannot insulate each category of applicants with certain desired [racial] qualifications from competition 1212 with all other applicants." Grutter, 539 U.S. at *1212 334, 123 S.Ct. 2325. The racial tiebreaker fails that test.
Yet the majority insist that because the District seeks to avoid racially concentrated schools, "the District's tiebreaker must necessarily focus on the race of its students." Majority op. at 1183. Again, the majority misses the crucial protection provided by the Equal Protection Clause. The District's narrow-tailoring obligation does not prohibit it from considering race; it just cannot consider only race. The constitutional guarantee of equal protection requires the District to focus upon the individual's whole make up, rather than just a group's skin color; this protects each student's right to equal protection under the law. See Grutter, 539 U.S. at 326, 123 S.Ct. 2325.
The counter-argument, of course, is that administrative inconveniences would prohibit the District from examining each student's file for individual characteristics, of which race may be a part. To the contrary, the record shows such an effort is certainly feasible.
First, thirteen- or fourteen-year-old students[19] are not so young that they have not yet developed unique traits to set themselves apart from other students and add greater diversity to the student body. The students's race is a factor in assessing the student as an individual, but the student may also speak English as a second language, come from a different socioeconomic stratum than other students, have overcome adversity, be a talented baseball player, musician, or have participated in community service.
Second, as noted by the majority, in the 2000-01 school year, approximately 3,000 students entered the District's high schools as ninth graders. Ten percent of those students were subject to the racial tiebreaker. Majority op. at 1170. Thus, under an individualized approach, the District would have had to examine only three hundred applications to determine who to admit to the oversubscribed schools. Instead, the District grouped those three hundred students into white and nonwhite categories and allowed a computer to select their assignment based solely upon their race.[20]
Thus, rather than providing an individualized consideration of applicants, the District is engaged in a "de jure [policy] of automatic acceptance or rejection based on a[] single `soft' variable." See Grutter, 539 U.S. at 337, 123 S.Ct. 2325. Such inflexibility shows the racial tiebreaker is not "narrowly tailored to any goal, except perhaps outright racial balancing." See Croson, 488 U.S. at 507, 109 S.Ct. 706 (plurality).
B.
The second narrow-tailoring factor prohibits the use of quotas based upon race. Grutter, 539 U.S. at 334, 123 S.Ct. 2325. A quota is defined as "a program in which a certain fixed number or proportion of opportunities are reserved exclusively for certain minority groups. Quotas impose a fixed number or percentage which must be attained, or which cannot be exceeded." Id. at 335, 123 S.Ct. 2325 (internal quotation marks and citations omitted).
1213 *1213 Here, when a District school is oversubscribed and "integration positive" 0907 i.e., the white or nonwhite student body of the school deviates by plus or minus 10% or 15% (depending on the school year)[21] of the

preferred 40% white/60% nonwhite ratio 0907 the District uses the racial tiebreaker to admit students whose presence will move the overall student body closer to the preferred ratio. Using the 2000-2001 school year as an example, the District would employ the racial tiebreaker to exclude white students and admit nonwhite students where the white student body population exceeded 50%. The District would also employ the racial tiebreaker to exclude nonwhite students and admit white students where the nonwhite student body population in a particular school exceeded 70%.
By its nature, the tiebreaker aims for a rigid, predetermined ratio of white and nonwhite students, and thus operates to reach "a fixed number or percentage." (emphasis supplied). Gratz specifically rejected such a plan as not narrowly tailored. See 539 U.S. at 270, 123 S.Ct. 2411 ("[T]he University's policy, which automatically distributes [20%] ... of the points needed to guarantee admission, to every single `underrepresented minority' applicant solely because of race, is not narrowly tailored...."); id. at 271-72, 123 S.Ct. 2411 ("The only consideration that accompanies this distribution of points is a factual review of an application to determine whether an individual is a member of one of these minority groups.").
Yet the majority argues no quota exists here because the racial tiebreaker "does not set aside a fixed number of slots for nonwhite or white students," nor is the 10 or 15% variance always satisfied (generally because there are insufficient numbers of white or nonwhite students needed to balance the school). Majority op. at 1185.[22] With respect, the majority misses the point. A quota does not become less of a quota because there are an insufficient number of whites or nonwhites to fill the preselected spots. The District created a quota when it established the predetermined, preferred ratio of white and nonwhite students. In Bakke, the medical school argued that it did not operate a quota in its admissions system because it did not always fill the preselected seats; thus, its admissions system only had a "goal." Justice Powell rejected that argument, stating that regardless of whether the preselected seats were a "quota" or a "goal," such a
semantic distinction is beside the point: The special admissions program is undeniably a classification based on race and ethnic background. To the extent that there existed a pool of at least minimally qualified minority applicants to fill the 16 special admissions seats, white applicants could compete only for 84 seats in the entering class, rather than the 100 open to minority applicants. Whether this limitation is described as a quota or a goal, it is a line drawn on the basis of race and ethnic status.
1214 *1214 Bakke, 438 U.S. at 289, 98 S.Ct. 2733 (Powell, J.).
The majority makes a further attempt to avoid Grutter's admonition against quotas by attempting to classify the District's predetermined ratio as a "critical mass." The District's preferred ratio could not be further from the definition of a "critical mass." Grutter recognized that a "critical mass" had no quantified definition; instead, it was generally referred to as "meaningful numbers" or "meaningful representation" of minorities. 539 U.S. at 318, 123 S.Ct. 2325. The Court expressly stated that a "critical mass" was not a means "simply to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin." Id. at 329, 123 S.Ct. 2325 (internal quotation marks omitted).
But unlike the unquantified "critical mass" from Grutter, the District's preferred ratio is firmly set at 40% white, 60% nonwhite. When the 15% deviation trigger is used with the racial tiebreaker, the District seeks to enroll between 75% and 45% nonwhite students and 25% to 55% of white students. The District's admissions plan clearly seeks to assure a specified percentage of white or nonwhite students in its schools; rather than seeking a "critical mass," the District instead seeks racial balance. Thus, the District's operation of the racial tiebreaker fails this factor as well.
C.
The third narrow-tailoring factor requires the District to have engaged in a "serious, good-faith consideration of workable race-neutral alternatives." See id. at 339, 123 S.Ct. 2325. The majority concludes the District made such an effort. Majority op. at 1188. For several reasons, I disagree.

First, the District's superintendent flatly admitted the District did not engage in a serious, good-faith consideration of race-neutral alternatives. When asked whether the District "g[a]ve any serious consideration to the adoption of a plan for the assignment of high school students that did not use racial balancing as a factor or goal," the District's superintendent stated: "I think the general answer to that question is no ... I don't remember a significant body of work being done. I mean it's possible informally ideas were floated here or there, but I don't remember any significant staff work being done." [ER 521.]
The record supports this concession. The District never asked its demographer to conduct any analysis regarding the effect of using a race-neutral lottery. [ER 483.] The District also never asked its demographer to conduct any analysis regarding a diversity program with non-racial indicia such as a student's eligibility for free lunch or the students's socioeconomic background.[23] [ER 481-82.]
1215 *1215 Also, in 2000, the Urban League of Metropolitan Seattle presented a high school assignment plan to the District. The plan proposed that each neighborhood region in Seattle would have a designated high school. Students would still be able to apply to any high school in Seattle, but when oversubscription occurred, students living in the designated "reference area" would first be assigned to their regional high school ahead of those who did not. To avoid racial concentration in the schools, the plan proposed "merit-based academic, avocational and vocational magnet programs." These programs "will help each school address racial diversity issues by encouraging students to travel outside of their communities to participate in a specific magnet program."[24]
Despite the majority's assertion, the record suggests the District did not seriously consider this plan. The District did not ask its demographer to conduct any analysis as to the effect or workability of the plan [ER 504]; one 1216 District board member *1216 stated the District "didn't deal with" the plan [ER 514]; another board member stated the District didn't consider the plan [ER 643]; and last, another board member stated he refused to read the proposal because he would "rather play with my bass lunker fishing game." [ER 573.]
Of course, "[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative," Grutter, 539 U.S. at 339, 123 S.Ct. 2325, but it does require an earnest, good-faith consideration of the alternatives. Here, the District made no such attempt, and thus the District's use of the racial tiebreaker fails this narrow-tailoring factor.[25]
D.
The fourth narrow-tailoring factor requires that the District's use of the racial tiebreaker "must not unduly burden individuals who are not members of the favored racial and ethnic groups." See Grutter, 539 U.S. at 341, 123 S.Ct. 2325. The majority adjusts this test slightly to consider "any racial group," rather than just members of the disfavored group. Majority op. at 1180. Because the racial tiebreaker disadvantages both white and nonwhite children, I agree that the modification is valid. But unlike the majority, I conclude the District's operation of the racial tiebreaker fails this factor as well.
The racial tiebreaker unduly burdens thirteen- and fourteen-year-old school children by (1) depriving them of their choice of school, and (2) imposing on them tedious cross-town commutes, solely upon the basis of their race.
First, as recognized above, the "good" schools in Seattle are a limited government benefit. Thus, the racial tiebreaker burdens white or nonwhite students, and often deprives them of the opportunity to enroll at what are considered the better schools, solely on the basis of race.
Second, the children of plaintiff members Jill Kurfurst and Winnie Bachwitz were denied admission to Ballard High School based on their race and instead were forced to attend Ingraham, a school on the other side of Seattle from their home. To attend that school, the two white students faced a daily multi-bus round-trip commute of over four hours. The parents instead enrolled their children in private schools. Those children were not only deprived of the school of their choice, they were effectively denied a public education (surely at much lower cost than private tuition), based on nothing but their race.

A look at the operation of the tiebreaker provides further evidence of the injury the District inflicts on both white 1217 and nonwhite students. As noted by the majority, *1217 in the 2000-01 school year, 89 more white students were
assigned to Franklin than would have occurred absent the tiebreaker; 107 more nonwhite students were admitted to Ballard; 82 more nonwhite students were admitted to Roosevelt; and Twenty-seven more nonwhite students were admitted to Nathan Hale. Majority op. at 1170. To place the racial tiebreaker into proper perspective, in the 2000-01 school year, 89 nonwhite, minority students were denied admission to Franklin, and had to attend what to them was a less desirable school, solely because of their skin color. One hundred-seven white students were denied admission to Ballard, and had to attend what to them was a less desirable school, solely because of their skin color. Eighty-two white students were denied admission to Roosevelt, and had to attend what to them was a less desirable school, solely because of their skin color. Twenty-seven white students were denied admission to Nathan Hale, and had to attend what to them was a less desirable school, solely because of their skin color.
Yet the majority discounts the burdens imposed by the racial tiebreaker, concluding that (1) the "minimal burden" of the tiebreaker is shared equally among white and nonwhite students; (2) no student is entitled to attend any specific school in any event; and (3) the tiebreaker does not uniformly benefit one race over the other because the tiebreaker operates against both whites and nonwhites. Majority op. at 1191-1192. Regarding the first point, the U.S. Supreme Court has long rejected the notion that a racial classification which burdens races equally is any less objectionable under the Equal Protection Clause. In Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), the U.S. Supreme Court held a Virginia statute criminalizing interracial marriages was unconstitutional under the Equal Protection Clause. Id. at 12, 87 S.Ct. 1817. The Court rejected the state's argument that the miscegenation statute did not discriminate on the basis of race because it "punish[ed] equally both the white and the Negro participants in an interracial marriage." Id. at 8, 87 S.Ct. 1817. The Court reasoned: "In the case at bar ... we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race." Id. at 9, 87 S.Ct. 1817. Hence, it is irrelevant whether the racial tiebreaker disadvantages both races equally.
Second, I think I have already disposed of the majority's argument that no student is entitled to attend any specific District school. The students and parents clearly value some of the District's schools above the others, and limiting access to those higher quality schools on the basis of race is just the same as any other preferential racial classification.
Third, I agree the tiebreaker does not uniformly benefit one race over the other and can exclude both white and nonwhite students from the preferred schools. Yet that does not lessen the injury of being subject to a racial classification. Equal protection is an individual right, and whenever the District tells one student, whether white or nonwhite, he or she cannot attend a particular school on the basis of race, that action works an injury of constitutional proportion. See Adarand, 515 U.S. at 230, 115 S.Ct. 2097 ("[A]ny individual suffers an injury when he or she is disadvantaged by the government because of his or her race, whatever that race may be."); Monterey Mech. Co., 125 F.3d at 712 ("Race discrimination is never a `trifle.'").
The District's use of the racial tiebreaker thus unduly burdens members of the disfavored class, and the tiebreaker fails this narrow-tailoring factor as well.
1218 *1218 E.
The fifth and final narrow-tailoring factor requires the District's use of the racial tiebreaker to "be limited in time," and "have a logical end point." See Grutter, 539 U.S. at 342, 123 S.Ct. 2325. A workable "sunset" provision within any government-operated racial classification is vital:
[A] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race.... The requirement that all race-conscious admissions programs have a termination point assures all citizens that the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of the goal of equality itself.

Id. at 341-42, 123 S.Ct. 2325 (internal quotation marks and alterations omitted).
Citing Grutter, the majority contends the racial tiebreaker satisfies this factor because "this durational requirement can be met by periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity," and the District engages in such periodic reviews. Majority op. at 1192. Yet citing Grutter in full shows that "the durational requirement can be met by sunset provisions in race-conscious admissions policies and periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity." 539 U.S. at 342, 123 S.Ct. 2325 (emphasis added). Periodic reviews are not enough; there must be some "durational requirement," some "logical end point," to the racial classifications.
The District argued the end point is in the "thermostat" to the tiebreaker, in which the District ceases to use the racial tiebreaker at any school for the year once its use had brought the school into racial balance. Yet it is undisputed that the District has never been segregated by law; the racial imbalance in its schools results from Seattle's racially imbalanced housing patterns. If Seattle's children were simply assigned to the high schools nearest their homes, those schools supposedly would tend to reflect such imbalance.
Because there is no reason 0907 much less evidence 0907 to conclude Seattle's housing patterns will change, or that the District's student assignment program will affect such patterns, I must respectfully disagree that such a provision satisfies the "sunset provision" requirement enunciated in Grutter. Presumably, where the District employs the racial tiebreaker, the schools will become racially balanced, that is 40% white, 60% nonwhite (plus or minus a few percentage points, depending on the particular percentage deviation triggering the tiebreaker that year). Pursuant to the "thermostat," the District would then stop using the racial tiebreaker. But because Seattle's residential makeup is racially imbalanced[26] (and remains so despite the use of the racial tiebreaker), assignment to the oversubscribed schools would then occur only with use of (1) the sibling tiebreaker; and (2) the distance tiebreaker. Assuming that not every student also has a sibling attending one of the District's schools, the schools will inevitably become racially imbalanced again because of the racially imbalanced residential makeup, thus rendering the thermostat useless as a "sunset provision."
One could argue, then, that this result supports the need for use of the racial tiebreaker. Not necessarily so. If the 1219 racial imbalance in the schools is caused *1219 not by the students, but by the choices of the parents as to
where to live, then why not put the onus of remedying that imbalance on the parents rather than the students? Seattle's city council could create "incentives" for whites to move into nonwhite areas, and for nonwhites to move into white areas. And if incentives do not accomplish the task, well, why not use compulsion, as the District does to high school children? The city council could take measures to prevent new persons taking up residence in Seattle from living in areas where their presence might otherwise alter the sought-after racial balance. This would protect the racial balance within the schools and squarely put the burden of remedying the racial imbalance upon the parents, rather than the students.
Of course, less political resistance can be expected from choosing students for social engineering experiments in racial balancing, than in telling everyone 0907 including voters 0907 into which neighborhood they can move. Further, regulation of residence by race might run afoul of Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), although it is difficult to distinguish why the "compelling interest" of socialization among the races could not as easily be pressed in housing regulation as it is in schooling regulation.
The simple truth is that some people choose to live near members of their own ethnic or racial group.
There is no denying that American blacks often live in their own residential enclaves, especially in our big cities. But the same is true of whites and of every other racial and ethnic group 0907 Jews, Chinese, Cambodians, Cubans, Arabs. Such racial and ethnic clustering means that a third of non-Asian minorities attend schools that are less than 10-percent white. And even though whites constitute just over 60 percent of the nation's schoolchildren, the average white student goes to a school that is 80-percent white.
But why should we expect identical proportions of blacks and whites to live in each and every neighborhood? People like to live near others with whom they identify, and the schools mirror their

choices. When asked about their residential preferences, only about 5 percent of blacks said they wished to live on an entirely or almost entirely white block. The vast majority preferred neighborhoods that were half or more than half African-American 0907 in other words, neighborhoods in which the black concentration was "disproportionately" high. According to the 2000 census, this happens to correspond closely to the actual distribution of black city-dwellers.
In a complex, heterogenous society, it is only natural that people should sort themselves out in urban space along lines of race as well as of religion and social class. This pattern was firmly established in the U.S. by the European immigrants who landed in the cities of the North in the 19th and early 20th centuries. The sociologists who studied these settlements recognized the important social functions served by "Little Italies" and "Poletowns".
Abigail Thernstrom[27] & Stephan Thernstrom, Have We Overcome?, Commentary, Nov. 2004, at 51-52.[28]
1220 Of course, the continuing racial imbalance in some residential areas is in significant *1220 part a byproduct of past efforts to exclude minority groups from predominately white areas. Yet as racial tolerance and enforcement of civil rights laws have increased, neighborhoods are becoming more racially balanced. Id. In 1960, 15% of African-Americans lived in suburbs. In 2004, 36% live in suburbs. Id. African-Americans account for 9% of the total suburban population, "surprisingly close to proportionality for a group that constitutes only 12 percent of the American population." Id. Moreover, from 1960 to 2000, the proportions of African-American living in census tracts that were over 80% black fell from 47% to under 30%. Id. During that same period, the proportion residing in census tracts that were over 50% black fell from 70% to 50%. Id. Most importantly, this balancing takes place without any government coercion, except perhaps by the enforcement of fair housing laws which prevent racial discrimination such as California's Unruh Civil Rights Act, CAL. CIV.CODE § 51 (West 2001).
No one who understands what makes America great can quarrel with ethnic pride. At home, on the weekend, in the family and the neighborhood, Jews will be Jews, Italians Italian 0907 and there is no reason blacks should be any different. Religion and ethnicity are essential parts of our lives, and government should not curtail how we express them in the private sphere. But when it comes to public life, even the benevolent color coding of recent decades has proved a recipe for alienation and resentment. Society need not be colorblind or color-less, but the law cannot work unless it is color-neutral, and the government should not be in the business of abetting or paying for the cultivation of group identity.
Schuck, supra, at 88 (quoting Tamar Jacoby, Someone Else's House: America's Unfinished Struggle for Integration 541 (1998)) (internal alteration omitted).
The racial imbalance in Seattle's schools results not from de jure segregation nor from any invidious exclusion of nonwhite minorities from the schools. Instead, it results from racially imbalanced residential housing patterns, an issue which the District does not even contend it can alter. Hence, the method chosen by the District to impose racially balanced schools is fatally flawed. Because it does not respond to the racial imbalances in Seattle's residential makeup, and instead only attempts to fix it within the schools, there will be no sunset to the use of the racial tiebreaker. See Grutter, 539 U.S. at 343, 123 S.Ct. 2325 ("It would be a sad day indeed were America to become a quota-ridden society, with each identifiable minority assigned proportional representation in every desirable walk of life. But that is not the rationale for programs of preferential treatment; the acid test of their justification will be their efficacy in eliminating the need for any racial or ethnic preferences at all."). Thus, the District's operation of the racial tiebreaker fails this factor as well.
V.
As pointed out in the majority opinion, other courts have concluded that a school district's use of a racial tiebreaker in search of racial balance in the student body passes muster under the Equal Protection Clause.[29] I 1221 respectfully disagree. *1221 The District's use of the racial tiebreaker to achieve racial balance in its high schools infringes upon each student's right to equal protection and tramples upon the unique and valuable nature of each individual. We are not different because of our skin color; we are different because each one of us is unique. That

uniqueness incorporates our opinions, our background, our religion (or lack thereof), our thought, and our color. Grutter attempted to strike a balance between the individual protections of equal protection and being conscious of race even when looking at the individual. The District's use of the racial tiebreaker, however, attempts no such balance; it instead classifies each ninth-grade student solely by race. Because of that, I must conclude such a program violates the Equal Protection Clause.

The majority's decision risks unfortunate repercussions. On the short-term, the specter of "white flight" (a recurring issue in the aftermath of the elimination of de jure desegregation) manifests itself here. The racial balancing of students will require busing and long-distance transportation to schools outside of some students' neighborhoods. Parental involvement in those distant schools (such as with the PTA) will undoubtedly decrease. Parents who can afford private education (such as those in the more affluent northern part of Seattle) may very well choose to pull their children from the District schools and enroll them elsewhere, much like the Kurfurst and Bachwitz children. On the long-term, such an exodus could result in a decreased tax base and public support for the District schools and may result in the exact opposite the District hopes to achieve-a loss of white students from their school campuses.

One of the greatest stains upon the history of our country is our struggle with race discrimination. Perhaps that stain would not be so deep had we chosen a different approach to our equal protection jurisprudence, an approach often-quoted:

Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.

Plessy v. Ferguson, 163 U.S. 537, 559, 16 S.Ct. 1138, 41 L.Ed. 256 (1896) (Harlan, J., dissenting).

Or, as more recently said by the late Justice Stanley Mosk of the California Supreme Court:

1222-1240

Racism will never disappear by employing devices of classifying people and of thus measuring their rights. Rather, wrote Professor Van Alstyne, `one gets beyond racism by getting beyond it now: by a complete, resolute, and credible commitment [n]ever to tolerate in one's own life or in the life or practices of one's government the differential treatment of other human beings by race. Indeed, that is the great lesson for government itself to teach: in all we do in *1222-1240 life, whatever we do in life, to treat any person less well than another or to favor any more than another for being black or white or brown or red, is wrong. Let that be our fundamental law and we shall have a Constitution universally worth expounding.'

Price v. Civil Serv. Comm., 26 Cal.3d 257, 161 Cal.Rptr. 475, 604 P.2d 1365, 1391 (1980) (Mosk, J., dissenting) (quoting William Van Alstyne, Rites of Passage: Race, the Supreme Court, and the Constitution, 46 U. CHI. L.REV. 775, 809-10 (1979)).

The way to end racial discrimination is to stop discriminating by race.

For the reasons expressed above, I respectfully dissent and would reverse the judgment of the district court, holding the District's use of the racial tiebreaker in its high school admissions program violates the equal protection rights of each student excluded from a particular school solely on the basis of that student's race.

[1] The terms "racial diversity," "racial concentration" and "racial isolation" have been used by the District to encompass racial and ethnic diversity, concentration and isolation. For the purposes of this opinion, we adopt this shorthand.
[2] We draw the following restatement of facts largely from the district court opinion, see Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 137 F.Supp.2d 1224 (W.D.Wash. 2001) ("Parents I"), and the Washington Supreme Court Opinion, see Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 149 Wash.2d 660, 72 P.3d 151 (2003) ("Parents IV").

[3] The history that follows comes principally from two documents in the district court record. One is a report entitled, "The History of Desegregation in Seattle Public Schools, 1954-1981," which was prepared by the District's desegregation planners. The other is the "Findings and Conclusions" adopted by the Board in support of the current assignment plan. (They are cited as History of Desegregation and Findings and Conclusions, respectively.)
[4] For example, the Seattle Plan was confusing, required mandatory busing of nonwhite students in disproportionate numbers, made facilities and enrollment planning difficult and contributed to "white flight" from the city schools. Findings and Conclusions at 30.
[5] The current popularity of Ballard High School is illustrative of the constantly changing dynamic of Seattle's public high schools. In the fall of 1999, Ballard moved to a new facility under the leadership of a new principal. Prior to the move, Ballard was not oversubscribed; now it is one of the most popular high schools in Seattle.
Similarly, the popularity and demographics of Nathan Hale High School changed significantly when it acquired a new principal who instituted a number of academic innovations, including joining the "Coalition of Essential Schools" and instituting a "Ninth Grade Academy" and "Tenth Grade Integrated Studies Program." Prior to 1998, Nathan Hale, a north area high school, was not oversubscribed, and the student body was predominantly nonwhite. Starting in 1998, the high school began to have a waitlist, and more white students, who had previously passed on Nathan Hale, wanted to go there. As a result, the number of nonwhite students declined dramatically between 1995 and 2000.
[6] Although the record reflects the general effects of the tiebreaker in 2001-02, it does not include the specific number of students affected by the tiebreaker in the three oversubscribed schools where the tiebreaker applied. The record, however, does include these numbers for the 2000-01 school year. Although the tiebreaker operated differently in 2000-01, and applied to four schools rather than three, the 2000-01 numbers illustrate the general operation of the tiebreaker.
[7] The Board's decision to change the trigger point for use of the tiebreaker from plus or minus 10 percent to plus or minus 15 percent, however, had the effect of rendering Roosevelt High School neutral for desegregation purposes. Thus, the tiebreaker did not factor into assignments to Roosevelt High School in the 2001-02 school year.
[8] Wash. Rev.Code § 49.60.400 ("The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.").
[9] U.S. Const. amend. XIV, § 1 ("No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.").
[10] 42 U.S.C. § 2000d ("No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."). Because "discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI," we address the twin challenges to the racial tiebreaker simultaneously. Gratz, 539 U.S. at 276 n. 23, 123 S.Ct. 2411.
[11] We review the district court's resolution of cross-motions for summary judgment de novo. United States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir.2003).
[12] Judge Kozinski's concurrence makes a powerful case for adopting a less stringent standard of review here because the Plan does not attempt to "benefit[] or burden[] any particular group;" therefore it "carries none of the baggage the Supreme Court has found objectionable" in earlier equal protection cases. Kozinski, J., concurring, infra at 1194 and 1196. Recognizing the importance of context in the Supreme Court's equal protection jurisprudence, Judge Kozinski proposes "robust and realistic" rational basis rather than strict scrutiny review. Id.

at ___. Cf. Coalition for Economic Equity v. Wilson, 122 F.3d 692, 708 n. 16 (9th Cir.1997) ("We have recognized . . . that `stacked deck' programs trench on Fourteenth Amendment values in ways that `reshuffle' programs do not. Unlike racial preference programs, school desegregation programs are not inherently invidious, do not work wholly to the benefit of certain members of one group and correspondingly to the harm of certain members of another group, and do not deprive citizens of rights.") (internal quotation marks, alterations and citations omitted).
Nonetheless, the Supreme Court in Johnson v. California, ___ U.S. ___, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005), rejected the argument that a California Department of Corrections ("CDC") policy in which all inmates were segregated by race should be subjected to relaxed scrutiny because the policy "neither benefits nor burdens one group or individual more than any other group or individual." Id. at 1147 (internal quotation marks omitted); see also id. at 1146 (noting that all racial classifications "raise special fears that they are motivated by an invidious purpose" and that "[a]bsent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining . . . what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics" (internal quotation marks and citation omitted)). As Judge Kozinski aptly notes, Johnson is not entirely analogous to the instant case because the CDC segregated inmates on the basis of race, whereas the District's use of race is aimed at achieving the opposite result 0907attaining and maintaining integrated schools. Kozinski, J., concurring, infra. at 1194. Nevertheless, like the First and Sixth Circuits 0907the only other circuits to rule, post-Grutter and Gratz, on the constitutionality of a voluntary plan designed to achieve the benefits of racial diversity in the public secondary school setting we 0907 conclude that the Plan must be reviewed under strict scrutiny. See Comfort v. Lynn School Committee, 418 F.3d 1, 6 (1st Cir.2005) (en banc); McFarland v. Jefferson County Public Schools, 416 F.3d 513, 514 (6th Cir.2005) (per curiam).
[13] The Court also heeded the judgment of amici curiae0907including educators, business leaders and the military0907that the educational benefits that flow from diversity constitute a compelling interest. Grutter, 539 U.S. at 330, 123 S.Ct. 2325 ("The Law School's claim of a compelling interest is further bolstered by its amici, who point to the educational benefits that flow from student body diversity."); see also id. ("These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints."); id. at 331, 123 S.Ct. 2325 ("[H]igh-ranking retired officers and civilian leaders of the United States military assert that, `[b]ased on [their] decades of experience,' a `highly qualified, racially diverse officer corps . . . is essential to the military's ability to fulfill its principle mission to provide national security.'").
[14] Academic research has shown that intergroup contact reduces prejudice and supports the values of citizenship. See Derek Black, Comment, The Case for the New Compelling Government Interest: Improving Educational Outcomes, 80 N.C. L.Rev. 923, 951-52 (2002) (collecting academic research demonstrating that interpersonal interaction in desegregated schools reduces racial prejudice and stereotypes, improving students' citizenship values and their ability to succeed in a racially diverse society in their adult lives).
[15] The District's compelling interests in diversity have been endorsed by Congress. In the Magnet Schools Assistance Act, Congress found that "It is in the best interests of the United States 0907(A) to continue the Federal Government's support of local educational agencies that are voluntarily seeking to foster meaningful interaction among students of different racial and ethnic backgrounds, beginning at the earliest stages of such students' education; (B) to ensure that all students have equitable access to a high quality education that will prepare all students to function well in a technologically oriented and a highly competitive economy comprised of people from many different racial and ethnic backgrounds." 20 U.S.C. § 7231(a)(4) (emphasis added).
[16] According to the Seattle Times' School Guide submitted by Parents, for the year 2000, on average 34 percent of Seattle's high school graduates attend four-year colleges after graduation and 38.2 percent attend two-year colleges, although percentages vary from high school to high school.
[17] The prospect of children across the nation being required to attend racially concentrated or isolated schools is a crisis that school boards, districts, teachers and parents confront daily. See Civil Rights Project 4 ("At the beginning of the twenty-first century, American public schools are now twelve years in the process of continuous resegregation. The desegregation of black students, which increased continuously from the 1950s to the late 1980s, has now receded to levels not seen in three decades.").

[18] Like the District, none of the school districts in the above-cited cases was subject to a court-ordered desegregation decree nor, with the exception of Andrew Jackson, did the schools face an imminent threat of litigation to compel desegregation. Like the District, they may have been vulnerable to litigation in decades past, but the districts' voluntary desegregation measures would make it difficult today to make the required showing that the districts intended to create segregated schools. See, e.g., Comfort, 283 F.Supp.2d at 390 (explaining that the district's vulnerability to litigation had been "headed off by the very Plan in contention here").
[19] The dissent correctly notes that these decisions were rendered in the context of de jure segregation. But their import is also significantly compelling in the context of de facto segregation, as in Seattle. Indeed, in Swann, the Court further stated, "Our objective in dealing with the issues presented by these cases is to see that school authorities exclude no pupil of a racial minority from any school, directly or indirectly, on account of race. . . ." 402 U.S. at 23, 91 S.Ct. 1267 (emphasis added).
[20] The Court explained that "critical mass" was defined by the law school as "meaningful numbers" or "meaningful representation," or "a number that encourages underrepresented minority students to participate in the classroom and not feel isolated." Grutter, 539 U.S. at 318, 123 S.Ct. 2325 (internal quotation marks omitted).
[21] Parents do not claim that their children have a right to attend a particular school, nor could they. See Bustop Inc., 439 U.S. at 1383, 99 S.Ct. 40 (rejecting any legally protected right to have children attend their nearest school). In any case, under the current Plan, all students can attend a school close to their home. Because there are multiple schools in the north and south of Seattle, students for whom proximity is a priority may elect as their first choice one of the schools in their residential area that is not oversubscribed and be guaranteed an assignment to that school.
[22] In Bakke, Justice Powell noted:
Respondent's position is wholly dissimilar to that of a pupil bused from his neighborhood school to a comparable school in another neighborhood in compliance with a desegregation decree. Petitioner did not arrange for respondent to attend a different medical school in order to desegregate Davis Medical School; instead, it denied him admission and may have deprived him altogether of a medical education.
438 U.S. at 301 n. 39, 98 S.Ct. 2733.
[23] The dissent believes that "the educational benefits from diversity, if any, are much greater at the higher educational level because such benefits are greatly magnified by the learning that takes place outside the classroom. . . ." Bea, J., dissenting, infra. at 1207. This belittles the substantial role of high school classroom discussions in contributing to the educational development of our young citizens. "The [high school] classroom is peculiarly the marketplace of ideas. The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues." Tinker v. Des Moines Independent Community Sch. Dist., 393 U.S. 503, 512, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (internal quotation marks omitted).
[24] The dissent calculates that individualized consideration would be administratively feasible because only 300 students would need to be considered holistically. Though it is true that 300 students were subject to the racebased tiebreaker, it does not follow that only those 300 would require individualized consideration. Under the dissent's view of the way the District should operate, all 3,000 students would have to be subject to holistic consideration to determine their proper school assignment. Whether or not this is administratively feasible is not clear in the record, but we believe it is ultimately irrelevant because individualized consideration is not required in the context presented here.
[25] Reliance on group characteristics is not necessarily constitutionally infirm under Fourteenth Amendment jurisprudence. See, e.g., Kimel v. Florida Bd. of Regents, 528 U.S. 62, 84, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) ("Under the Fourteenth Amendment, a State may rely on age as a proxy for other qualities, abilities, or characteristics that are relevant to the State's legitimate interests. The Constitution does not preclude reliance on such generalizations. That age proves to be an inaccurate proxy in any individual case is irrelevant.")

[26] The dissent's alternative proposals to achieve the District's interests in diversity illustrate the difficulty of individualized consideration in the high school context. For example, the dissent offers socioeconomic status as a more narrowly tailored and acceptable form of diversifying the District's schools. However, socioeconomic status does nothing more than substitute a number from a family's tax return for race. There is no holistic, individualized consideration under such an approach.
[27] Much like the rationale underlying the Court's requirement of individualized, holistic review, the rationale underlying the Court's prohibition of quotas does not apply to the race-based tiebreaker. In paradigmatic affirmative action settings 0907 employment and admissions to institutions of higher learning 0907 the Court disapproves of quotas because they are viewed as insulating minority candidates from competition with nonminority candidates for scarce government resources usually awarded on the basis of an applicant's qualifications 0907 jobs, promotions or places in a law school class. See Bakke, 438 U.S. at 317, 98 S.Ct. 2733 (opinion of Powell, J.). This is objectionable because no "matter how strong their qualifications," nonminority candidates are never afforded the chance to compete with applicants from the preferred groups for the set-aside. Id. at 319, 98 S.Ct. 2733. Because noncompetitive assignment to Seattle's public high schools is not based on a student's relative qualifications, the dangers that are presented by a quota 0907 of substituting racial preference for qualification-based competition 0907 are absent here.
[28] Although the dissent contends that the "tiebreaker aims for a rigid, predetermined ratio of white and nonwhite students," we believe it is more appropriately viewed as a "permissible goal." Such a goal "requires only a good faith effort . . . to come within a range demarcated by the goal itself." Grutter, 539 U.S at 334, 123 S.Ct. 2325 (internal quotation marks and citation omitted). The tiebreaker's broad, 30% range and the District's willingness to turn off the use of the tiebreaker after the ninth grade are consistent with a goal as opposed to a rigid ratio.
[29] Notably, the District's percentage of white and nonwhite enrollment is significantly more varied than the percentage of underrepresented minorities admitted to the University of Michigan's Law School, which remained relatively consistent. From 1995 to 1998, the percentage of minority students enrolled in the law school was 13.5 percent, 13.8 percent, 13.6 percent and 13.8 percent. Grutter, 539 U.S. at 389-90, 123 S.Ct. 2325 (Kennedy, J., dissenting). In contrast, the District's percentage of white and nonwhite enrollment encompasses a wide range. For example, for the 2000-01 school year, the percentage of nonwhite students in the ninth grade classes of the four oversubscribed public high schools after the racial tiebreaker was applied, varied from 54.2 percent at Ballard, to 59.5 percent at Franklin, to 40.6 percent at Nathan Hale to 55.3 percent at Roosevelt.
[30] Slightly more than 80 percent of all entering ninth grade students were assigned to their first choice school.
[31] For example, in 1995, 662 (approximately 16 percent) of the 4147 law school applicants were underrepresented minorities; in 1996, 559 (approximately 15 percent) of the 3677 law school applicants were underrepresented minorities; in 1997, 520 (approximately 15 percent) of the 3429 law school applicants were underrepresented minorities. See Grutter, 539 U.S. at 384, 123 S.Ct. 2325 (Rehnquist, C.J., dissenting).
[32] Although we characterize it as de facto residential segregation, we are mindful of Justice Marshall's dissent in Board of Education v. Dowell, "The . . . conclusion that the racial identity of the northeast quadrant now subsists because of `personal preference[s]' pays insufficient attention to the roles of the State, local officials, and the Board in creating what are now self-perpetuating patterns of residential segregation." 498 U.S. 237, 263, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991) (internal citation omitted).
[33] The Supreme Court repeatedly has shown deference to school officials at the intersection between constitutional protections and educational policy. See generally Wendy Parker, Connecting the Dots: Grutter, School Desegregation, and Federalism, 45 Wm. & Mary L.Rev. 1691 (2004). The theme of local control over public education has animated Supreme Court jurisprudence. See, e.g., Brown, 349 U.S. at 299, 75 S.Ct. 753 (directing local school officials, with court oversight, to devise remedies for segregation in the light of "varied local school problems"); Milliken v. Bradley, 418 U.S. 717, 741-42, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) ("No single tradition in public education is more deeply rooted than local control over the operation of schools; local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to quality of the educational process."); Freeman, 503 U.S. at 490, 112 S.Ct. 1430 ("As we have long

observed, `local autonomy of school districts is a vital national tradition.'" (quoting Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 410, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977))); see also Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 683, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986) ("The determination of what manner of speech in the classroom or in the school assembly is inappropriate properly rests with the school board."); LaVine v. Blaine School District, 257 F.3d 981, 988 (9th Cir.2001) ("In the school context, we have granted educators substantial deference as to what speech is appropriate.") (citing and quoting Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988)). These Supreme Court decisions suggest that secondary schools occupy a unique position in our constitutional tradition. For this reason, we afford deference to the District's judgment similar to that which Grutter afforded the university. See Grutter, 539 U.S. at 328-29, 123 S.Ct. 2325.
[34] The dissent urges, "The way to end discrimination is to stop discriminating by race." Bea, J., dissenting, infra. at 1221. More properly stated, the way to end segregation is to stop separation of the races. The Seattle school district is attempting to do precisely that.
[35] Subject to federal statutory and constitutional requirements, structuring public education has long been within the control of the states as part of their traditional police powers. See Barbier v. Connolly, 113 U.S. 27, 31-32, 5 S.Ct. 357, 28 L.Ed. 923 (1884) (describing the states' traditional police powers).
[36] As detailed earlier, the Board's decision to change the trigger point for use of the tiebreaker from plus or minus 10 percent to plus or minus 15 percent had the effect of rendering Roosevelt High School neutral for desegregation purposes. Thus, the tiebreaker did not factor into assignments to Roosevelt High School in the 2001-02 school year.
[37] It is worth noting that plans like the District's may actually contribute to achieving the Court's vision in Grutter that racial preferences will no longer be necessary in 25 years 0907 or even sooner. As Justice Ginsburg observed, "As lower school education in minority communities improves, an increase in the number of [highly qualified and competitive] students may be anticipated." Grutter, 539 U.S. at 346, 123 S.Ct. 2325 (Ginsburg, J., concurring).
[1] For a dissenting view, see infra pp. 1204-1205.
[2] Because of our country's struggle with racial division and the injustices of compelled government de jure segregation, we must be especially suspicious of any compulsive government program based upon race, even when such a program is supposedly beneficial. Good intentions cannot insulate the government's use of race from the commands of the Equal Protection Clause; history is rife with examples of well-intentioned government programs which later caused grievous harm to society and individuals. See Adarand Constructors v. Pena, 515 U.S. 200, 226, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) ("More than good motives should be required when government seeks to allocate its resources by way of an explicit racial classification system."); Olmstead v. United States, 277 U.S. 438, 479, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting) ("Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent.... The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.").
[3] This makes all the more puzzling the majority's assertion that "that the District has a compelling interest in securing the educational and social benefits of racial (and ethnic) diversity." Majority op. 1166 (emphasis added). There simply is no ethnic tiebreaker.
[4] Remediation of de jure segregation is not at issue here; the parties concede the District's schools have never been de jure segregated. No one even suggests that Seattle's housing market has ever been affected by de jure segregation.
[5] Indeed, the term "de facto segregation" is somewhat of an oxymoron. That is perhaps why the Supreme Court preceded the term with the qualifier "so-called." See Keyes, 413 U.S. at 208, 93 S.Ct. 2686.
[6] See Comfort v. Lynn Sch. Comm., 418 F.3d 1, 27 (1st Cir.2005) (Boudin, C.J., concurring).
[7] Id.

[8] Concurrence at ___-___ (citing Comfort, 418 F.3d at 27 (Boudin, C.J., concurring)).
[9] See infra pp. 1212-1214 (discussion of why the racial tiebreaker used by Seattle is a quota).
[10] What is "the reality" or "realistic" or "real-world" is usually a rhetorical tool for dressing up one's own view as objective and impartial, and therefore, more presentable.
[11] See e.g. Adarand, 515 U.S. at 224, 115 S.Ct. 2097, Gratz v. Bollinger, 539 U.S. 244, 270, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003), Johnson v. California, ___ U.S. ___, 125 S.Ct. 1141, 1146, 160 L.Ed.2d 949 (2005). On this point, the majority agrees. See Majority op. pp. 1172 n. 12.
[12] The majority cites often to Grutter's statement that "context matters" in reviewing racial classifications under the Equal Protection Clause. See 539 U.S. at 327, 123 S.Ct. 2325 ("Context matters when reviewing race-based governmental action under the Equal Protection Clause."). There, the Court counseled that strict scrutiny was to take "relevant differences" into account. Id.
Indeed, "context" does matter; context always matters in the application of general rules of law to varied factual settings. See Gomillion v. Lightfoot, 364 U.S. 339, 343-44, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960) ("Particularly in dealing with 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 out of context in disregard of variant controlling facts."). In Grutter, the "context" was a public law school's race-conscious, individualized consideration of applicants for purposes of admissions, designed to achieve diversity. Here, the context is different; we consider a rigid racial tiebreaker, which considers only race, designed to avoid racial imbalance in the schools. And so, as we do for all cases, we look to general principles of law and apply them through the correct standard of review, cognizant of the different results reached in other cases because of different facts and the "context" in which the cases arose. But what must be remembered is that a different "context" does not change the general rules of law, nor does a different "context" change the applicable standard of review (at least for government-imposed racial classifications).
Yes, "context" matters, but the mention of "context" should not be a talisman to banish further enquiry. The "context" of the Michigan Law School is different from the District's schools. But the difference is in the age of the students, their number and the obligation of the District to admit all students. Does that change the fact that some students are sent to certain schools solely because of their races? How does "context" change that? Let us not succumb to the use of an abstraction ("context") to invoke "sensitivity" to "nuances," thus to attempt to change the bald fact of selection based on race.
[13] The majority fails to recognize this distinction. For example, comparing the District's claimed interest with those endorsed in Grutter, the majority reasons high schools "have an equal if not more important role" in preparing students for work and citizenship, and concludes "it would be a perverse reading of the Equal Protection Clause that would allow a university, educating a relatively small percentage of the population, to use race when choosing its student body but not allow a public school district, educating all children attending its schools, to consider a student's race in order to ensure that the high schools within the district attain and maintain diverse student bodies." Majority op. at 1175, 1176. Yet Grutter did not allow universities to consider race in admissions to achieve racial balancing. The whole point of Grutter and Gratz was that universities may consider race, but only as part of the overall individual. I see nothing perverse in recognizing the Equal Protection Clause to be the protector of the individual, whether he be among the few at an elite law school, or among the many in a public high school.
[14] Again, there is nothing illegal in freely choosing to believe in this stereotype and to act upon it as a private citizen in sending one's child to a particular school. The case changes when such racial stereotype is accepted by the state, and is the basis for the imposition of racial discrimination.
[15] The majority notes that for purposes of the racial tiebreaker, "a student is deemed to be of the race specified in his or her registration materials." Majority op. at 1169. That generalization declines to note a particularly overbearing facet of the racial tiebreaker. Although the District encourages the students' parents to identify the race of their student in the registration materials, if a parent or student chooses to follow the example of Tiger

Woods and refuses to identify his or her race, the District then engages in a visual inspection of the student or parent and will decide the child's color notwithstanding the parent's or student's choice.
[16] See also David J. Armor & Christine H. Rossell, Desegregation and Resegregation in the Public Schools, in Beyond the Color Line: New Perspectives on Race and Ethnicity in America 251 (Abigail Thernstrom & Stephan Thernstrom eds., 2002) ("[R]acial composition by itself has little effect on raising the achievement of minority students or on reducing the minority-white achievement gap. Some studies show that there is no relationship at all between black achievement and racial composition . . ., and other studies show that there is no relationship between the black-white achievement gap and racial composition. In either case, though there is some evidence here that achievement can be affected by programmatic changes, there is no evidence that it responds to improved racial balance by itself."); id. at 252 ("The evidence on the benefit of school desegregation for race relations is probably the weakest of all. Indeed, there are more studies showing harmful effects than studies showing positive effects." This led to another and more recent reviewer of the race relations literature to conclude, somewhat generously: "`In general, the reviews of desegregation and intergroup relations were unable to come to any conclusion about what the probable effects of desegregation were.... Virtually all of the reviewers determined that few, if any, firm conclusions about the impact of desegregation on intergroup relations could be drawn. The reluctance of reviewers to draw conclusions about the benefits of school desegregation for race relations or self-esteem only reinforces our conclusion that the psychological harm theory of de facto segregation and the social benefit theory of desegregation are clearly wrong, at least when applied to desegregation as a racial balance policy.'").
[17] The majority states that Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), supports the proposition that the District has broad discretion to engage in racial balancing as an "educational policy." In Swann, the Supreme Court stated: "School authorities are traditionally charged with 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 within the broad discretionary powers of school authorities; absent a finding of a constitutional violation, however, that would not be within the authority of a federal court." Id. at 16, 91 S.Ct. 1267; see also North Carolina State Bd. of Educ. v. Swann, 402 U.S. 43, 45, 91 S.Ct. 1284, 28 L.Ed.2d 586 (1971) (same, citing Swann, 402 U.S. at 16, 91 S.Ct. 1267).
Swann's passage seems to provide powerful language for the majority's position, but alas, the majority takes the passage out of context. Swann considered the remedies available to a federal court to combat past de jure segregation. The Court never considered whether a school district could use racial classifications to achieve racial balance absent de jure segregation. Indeed, the Court stated: "We are concerned in these cases with the elimination of the discrimination inherent in the dual school systems, not with myriad factors of human existence which can cause discrimination in a multitude of ways on racial, religious, or ethnic grounds.... Our objective in dealing with the issues presented by these cases is to see that school authorities exclude no pupil of a racial minority from any school, directly or indirectly, on account of race; it does not and cannot embrace all the problems of racial prejudice, even when those problems contribute to disproportionate racial concentrations in some schools." Id. at 22-23, 91 S.Ct. 1267 (emphasis added).
Swann was also decided decades before the Court resolved the issue of the level of scrutiny to apply to "benign" racial classifications, vis-a-vis "invidious" racial classifications. Thus, Swann's dictum cannot shelter the District's use of the racial tiebreaker from the searching inquiry required by strict scrutiny.
The majority similarly errs in relying on Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982). There, the Court also specifically stated it did not reach the issue of the constitutionality of "race-conscious student assignments for the purpose of achieving integration, even absent a finding of prior de jure segregation." Id. at 472 n. 15, 102 S.Ct. 3187.
[18] See supra pp. 1201-1202 n. 12 (explaining why the talismanic use of "context" can not alter the fact of racial discrimination).

[19] As noted, the District applies the racial tiebreaker only to entering ninth-grade students (presumably around thirteen to fourteen years old).
[20] Three hundred applications seem like only a minor administrative challenge, but the Supreme Court's admonition bears repeating nonetheless: "[T]he fact that the implementation of a program capable of providing individualized consideration might present administrative challenges does not render constitutional an otherwise problematic system." Gratz, 539 U.S. at 275, 123 S.Ct. 2411.
[21] In 2000-01, the District used a 10% deviation trigger, but increased the trigger to 15% for the 2001-02 school year.
[22] Although the majority concludes a quota does not exist here, it also concludes "the rationale underlying the ... prohibition of quotas does not apply" here. Majority op. at 1184 n. 27. The majority reasons that because there is no competition in assignment to the District's schools, the dangers presented by a quota 0907 i.e., insulating applicants from competition on the basis of race 0907 are absent here. Majority op. at 1184 n. 27. But saying it does not make it so, whether it is said by the District or by the majority. As explained above, there is clearly a "market" for higher quality schools in the District, and there is competition for the schools the parents and students view to be the better schools.
[23] The majority makes the conclusory statement that the District's "white/nonwhite distinction is narrowly tailored to prioritize movement of students from the north of the city to the south of the city and vice versa" as an effort to combat Seattle's racially imbalanced residential patterns. Majority op. at 1188. Yet the District's attempt to balance students from north Seattle and south Seattle strongly suggests a less-restrictive, race-neutral approach to achieve such balancing: socioeconomic balancing. As the majority notes, the northern Seattle area contains a majority of "white" students and is "historically more affluent." Majority op. at 1166. This would mean the southern Seattle area is less affluent. Thus, moving more affluent students south, and less affluent students north, could possibly provide a more diverse student body. At the very least, serious consideration would have been warranted into this race-neutral alternative. See Levine, supra, at 536 (noting the key element to successfully integrating students of different backgrounds and race is not racial balance, but "economic integration").
Yet the majority accepts the District's rejection of the use of socioeconomic factors, reasoning that "[a]lthough there was no formal study of the proposal by District staff, Board members' testimony revealed two legitimate reasons" for rejecting the socioeconomic alternative: (1) "it is insulting to minorities and often inaccurate to assume that poverty correlates with minority status;" and (2) students would be reluctant to reveal their socioeconomic status to their peers. Majority op. at 1189. Such analysis seems far from the "serious, good-faith consideration of workable race-neutral alternatives" demanded by Grutter. See 539 U.S. at 339, 123 S.Ct. 2325. First, without formal studies (or indeed any earnest consideration of the alternatives), we have no way of knowing whether the District actually seriously considered, and rejected for valid reasons, less-restrictive race-neutral alternatives. In Croson, the Court emphasized the importance of a satisfactory record to determine whether raceneutral alternatives were considered. See Croson, 488 U.S. at 498-511, 109 S.Ct. 706 (plurality) (detailing the government actor's failure to document the basis for its use of a racial quota and stressing the need to do so). Second, the majority's insistence that the District's consideration of poverty would be "insulting" ignores the demeaning 0907 and indeed, constitutionally objectionable 0907 effect of placing persons into groups solely by their skin color for the purpose of receiving or being denied a governmental benefit. See Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) ("[T]his Court has consistently repudiated distinctions between citizens solely because of their ancestry as being odious to a free people whose institutions are founded upon the doctrine of equality."). Even if a sole focus on poverty might be insulting to some minorities, socioeconomic considerations need not inquire only into poverty status; eligibility for free lunch, the parents' levels of education, or whether English is a second language for the child are also relevant determinations in evaluating diversity. Third, there is no reason students would have to reveal their socioeconomic status to their peers; the District could, of course, keep such information confidential.
[24] Similar race-neutral alternatives are common throughout the United States. For example, the San Francisco, California public school district employs a program focused on enhancing diversity in the classrooms. The

program allows students to choose any school within the district. When a school is oversubscribed, the program first assigns students with siblings to the same school, and then accommodates students with specialized learning needs. After that, the "Diversity Index" handles further assignments. "Under the Diversity Index process, the school district calculates a numerical profile of all student applicants. The current Diversity Index is composed of six binary factors: socioeconomic status, academic achievement status, mother's educational background, language status, academic performance index, and home language." David I. Levine, Public School Assignment Methods after Grutter and Gratz: The View from San Francisco, 30 HASTINGS CONST. L.Q. 511, 528-31 (2003). Notably, the San Francisco system "does not use race as an express criterion for school assignments" and thus avoids the sharp focus of strict scrutiny. Id. at 531.
[25] In assessing whether the District seriously considered race-neutral alternatives, the majority applies deference to the District's consideration (or lack thereof) and rejection of the various alternatives. Majority op. at 1188 n. 33. With respect, the majority errs in two respects. First, as previously noted, deference to local officials' use of race is generally barred in the application of strict scrutiny. See Johnson, 125 S.Ct. at 1146 n. 1. Second, if the majority is attempting to apply the deference invoked in Grutter, the Court there applied deference in determining whether the Law School asserted a compelling governmental interest, not whether the means used to achieve that interest were narrowly tailored. See 539 U.S. at 328, 123 S.Ct. 2325 ("The Law School's educational judgment that such diversity is essential to its educational mission is one to which we defer.").
The pattern now established by the majority seems suspicious. Out of five narrow-tailoring factors, the majority has concluded two are inapplicable, and now a third is entitled to deference. I find it difficult to understand how such analysis could truly be considered strict scrutiny as to the narrowing requirement.
[26] About 70% of the residents of Seattle, Washington are white, and 30% of the residents are nonwhite. Sixtysix percent of white students live in the northern part of Seattle, while 75% of nonwhite students live in the southern part of Seattle.
[27] Mrs. Thernstrom is presently the Vice Chair of the U.S. Commission on Civil Rights.
[28] Further evidence that such self-selection results is submitted by this year's Nobel Laureate, Thomas C. Schelling, by application of game theory in chapter four of his book Micromotives and Macrobehavior (1978). Schelling employs an exercise using coins to demonstrate how an integrated neighborhood can become largely segregated as long as each resident desires at least one third of his or her neighbors to be of his or her race. When one person moves to get a preferred set of neighbors, it causes a chain reaction which settles down only when the neighborhood is effectively segregated.
[29] Cf. Comfort v. Lynn Sch. Comm., 418 F.3d 1, 5 (1st Cir.2005) (en banc) (holding a public high school district had a compelling interest, in the absence of de jure segregation, in using race-based assignments to "secur[e] the educational benefits of racial diversity," and the means used to serve that interest were narrowly tailored); McFarland v. Jefferson County Pub. Sch., 330 F.Supp.2d 834, 850 (W.D.Ky.2004) (holding a public high school district had a compelling interest in using race-based assignments to maintain racially integrated schools, and the means used to serve that interest were narrowly tailored), aff'd, 416 F.3d 513 (6th Cir.2005); Brewer v. W. Irondequoit Central Sch. Dist., 212 F.3d 738, 752 (2d Cir.2000) (holding a public middle school district had a compelling interest, in the absence of de jure segregation, in using race-based assignments to reduce "racial isolation" in its schools).
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 72 P.3d 151 (2003) 149 Wash.2d 660
Certified from the United States Court of Appeals for the Ninth Circuit in PARENTS INVOLVED IN COMMUNITY SCHOOLS, a Washington nonprofit corporation,
Plaintiff-counter-defendant0907 Appellant, v.
SEATTLE SCHOOL DISTRICT, NO. 1, a political subdivision of the State of Washington; Joseph Olchefske, in his official capacity as superintendent; Barbara Schaad-Lamphere, in her official capacity as President of the Board of Directors of Seattle Public Schools;
Donald Neilson, in his official capacity as Vice President of the Board of Directors of Seattle Public Schools; Steven Brown; Jan Kumasaka; Michael Preston; Nancy Waldman,
in their official capacities as members of the Board of Directors, Defendants-counterclaimants 0907 Appellees.
No. 72712-1.
Supreme Court of Washington, En Banc.
Argued October 24, 2002. Decided June 26, 2003.
152 *152 Davis Wright Tremaine, Daniel Ritter, Harry Korrell, Seattle, for Appellees.
Bennett Bigelow & Leedom, Michael Madden, Carol Janes, Mark Green, Seattle, for Appellant.
Preston Gates & Ellis, Paul Lawrence, Seattle, Amicus Curiae on behalf of American Civil Liberties Union.
Pacific Legal Foundation, Russell Brooks, Bellevue, Sharon Browne, Sacramento, CA, Amicus Curiae on behalf of Pacific Legal Foundation, Amicus Curiae on behalf of Center for Equal Opportunity, Amicus Curiae on behalf of American Civil Rights Institute.
Schroeter Goldmark & Bender, Jeffrey Robinson, Sandra Widlan, Seattle, Amicus Curiae on behalf of Urban League of Metropolitan Seattle.
CHAMBERS, J.
We are asked by the Ninth Circuit Court of Appeals to interpret RCW 49.60.400 to determine whether it prohibits all race-cognizant state government action or whether the act allows some race-cognizant state action, while limiting others. We are also invited to determine whether the Washington Constitution's unique treatment of 153 education requires racial integration in schools, or merely permits integration absent legislation to the contrary. *153 After examining Washington history, our constitution, and RCW 49.60.400, we conclude that the act prohibits some, but not all, race-cognizant government action. Affirmative action programs which advance a less qualified applicant over a more qualified applicant are now impermissible under Washington law. Programs which are racially neutral, such as the Seattle School District No. 1's open choice plan, are lawful.
Seattle School District No. 1 (School District) has 10 high schools. Because of racially segregating housing patterns, mandatory assignment to neighborhood schools would result in largely segregated schools. Because the School District believes that a racially diverse educational experience provides a superior education for all students, it has adopted a plan that allows students a measure of choice while attempting to ensure that schools do not become segregated. Because some schools are oversubscribed and not all students have their first choice of schools, the School District applies a series of tie breakers, one of which is specifically designed to promote racial diversity. This tie breaker only operates on schools that are more than 75 percent minority or less than 25 percent Caucasian, and operates only until the school is in closer balance.

We find that the School District's open choice plan does not conflict with RCW 49.60.400. Accordingly, we return this case to the federal court for further proceedings consistent with this opinion.
PROCEDURAL HISTORY
Seattle public high schools allow any student in the school district to attend any school. If there is room in the school, the student is admitted. Some schools are more popular than others. If more students seek admissions than there is space, the School District uses a series of "tie breakers" to allocate students to the schools. The second tie breaker is race, and is used to keep the oversubscribed schools from becoming segregated.
Appellant, Parents Involved in Community Schools (PICS), is a Washington nonprofit corporation formed by Seattle parents whose children have been or may be denied admission to their preferred high school because the school was oversubscribed and admitting them would increase racial imbalance. PICS challenges the "open choice" plan in federal court on both state and federal grounds.
The School District and its directors in their official capacity are the appellees. During the proceedings before the United States District Court for the Western District of Washington, PICS and the School District both moved for summary judgment. The federal district court granted the School District's motion holding that the open choice plan did not violate state or federal law. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 137 F.Supp.2d 1224, 1240 (W.D.Wash.2001) (PICS I), overturned by 285 F.3d 1236 (9th Cir.2002) (PICS II), opinion withdrawn by 294 F.3d 1084 (9th Cir. 2002). Judge Rothstein reasoned that while RCW 49.60.400 was susceptible to the interpretation proposed by the parent's group, that construction rendered it unconstitutional under article IX of the Washington Constitution because it forbade positive efforts to provide a general and uniform education to all students.[1] She found the act was also susceptible to a more limited interpretation that did not run afoul of the state constitution, and gave it that interpretation to avoid holding a Washington statute unconstitutional. Under that more limited interpretation, she upheld the open choice plan. See PICS I, 137 F.Supp.2d at 1227-28.
The United States Court of Appeals for the Ninth Circuit initially reversed. PICS II, 285 F.3d 1236. Both parties sought reconsideration. Realizing that the matter could not be finalized before the 2002-03 school assignments were made, the Ninth Circuit, on its own motion, withdrew its opinion, stayed further proceedings, and certified the state law questions to this court by an order dated June 17, 2002, 294 F.3d 1085. See Order at 1086. We accepted certification.
154 *154 CERTIFIED QUESTIONS
The Ninth Circuit Court of Appeals has certified this question to us:
By using a racial tiebreaker to determine high school assignments, does Seattle School District Number 1 "discriminate against, or grant preferential treatment to, any individual or group on the basis of race, ... color, ethnicity, or national origin in the operation of ... public education" in violation of Initiative 200 (I-200), codified at Washington Revised Code § 49.60.400?
Order at 1087. The Ninth Circuit suggested that we also consider several other questions before reaching a decision:
Should the term "preference" in I-200 be interpreted to have its ordinary lay meaning, in accordance with Washington cases holding that the average voter is the touchstone for the construction of an initiative, or are state law and/or federal law to be relevant in interpreting I-200? If state law is relevant, are California cases construing Proposition 209, the wording of which is identical to I-200, relevant?

Is the meaning of I-200 clear, or is the text ambiguous, making consideration of voter's pamphlet material relevant? If it is pertinent to the analysis, what factors should be used to evaluate this material?
Does article 9, section 1, of the Washington Constitution, or article 9, section 2, of the Washington Constitution, require that measures be taken to mitigate de facto segregation, or only permit it? In any event, is the Seattle School District's use of the racial tiebreaker required, permitted, or otherwise under the Washington Constitution and I-200?
Order at 1091-92.
FACTS
A. SEATTLE DEMOGRAPHICS
Seattle is a diverse community. Approximately 70 percent of residents are Caucasian, and 30 percent people of color. See Order at 1088. Seattle public school students breakdown nearly inversely, with approximately 40 percent Caucasian and 60 percent people of color. Id.
While as a whole Seattle is a diverse community, racial distribution is not homogenous. About 66 percent of all Caucasian students live on the waterfront or north of downtown and 84 percent of all African American students live south of the Seattle downtown area. Were geography alone used to determine school assignment, the different schools in the district would be racially segregated. Order at 1088;[2]see also PICS I, 137 F.Supp.2d at 1237.
B. SEATTLE OPEN CHOICE PLAN
Seattle operates 10 public high schools: Ballard, Chief Sealth, Cleveland, Franklin, Garfield, Ingraham, Nathan Hale, Rainier Beach, Roosevelt, and West Seattle. "Four of these high schools (Ballard, Ingraham, Nathan Hale, and Roosevelt) are located north of downtown Seattle; of the remaining six, five (Chief Sealth, Cleveland, Franklin, Garfield, and Rainier Beach) are located south of downtown, and one (West Seattle) is located directly west of down town." Order at 1088. These high schools vary widely in desirability. Three of the northern schools (Ballard, Nathan Hale, and Roosevelt) and two of the southern schools (Garfield and Franklin) are highly desirable and oversubscribed. The remaining schools are less desirable, and far fewer students seek to attend them.
The Seattle schools have never been segregated as a matter of law. However, merely local assignments would 155 result in segregated schools. To avoid this de facto segregation in high schools, the School District adopted *155
an open choice assignment plan. Instead of assigning students to their local schools, the School District allows students to attend any school in the district. If the school is undersubscribed, the student is admitted. However, the quality and reputation of the various schools weighs so heavily on student choice that 82 percent rank the same five schools as their first choice, leaving only 18 percent ranking the other five schools as their first choice. The School District established four "tiebreakers" to allocate students between the oversubscribed schools.[3]
First, the sibling tie breaker. Students with a sibling already attending the school will be assigned to their preferred school first. This accounts for 15-20 percent of assignments.
Second, the racial tie breaker. The school has found diversity to be a compelling factor in school assignments, and attempts to approximate in each oversubscribed school the racial mix of the public school population overall. If a school is oversubscribed, and if the school deviates more than 15 percent from the overall demographic make up of Seattle students, either minority or Caucasian students will be assigned to the school until it mirrors the overall student population demographic within 15 percent. Put another way, the tie breaker is triggered when the high school's student population is either less than 25 percent Caucasian or more than 75 percent minority.

Once racial balance is achieved, the school stops using the racial tie breaker. This accounts for about 10 percent of high school assignments.
Third, the distance tie breaker. Any remaining seats are allocated according to distance from the preferred school, with those nearest receiving preference. This accounts for about 70-75 percent of assignments.
Fourth lottery. The remaining assignments are done on the basis of a lottery. But as a practical matter, the lottery rarely occurs.
CONTENTIONS OF THE PARTIES
We first briefly review the arguments before us. The School District established to the federal trial court's satisfaction that without some positive effort to achieve racial balance, Seattle schools would be largely segregated based upon housing patterns within the district. The School District contends that all students who attend racially diverse schools receive a superior and richer educational experience that better prepares them to participate and succeed in a diverse society than students who attend segregated schools. The racial tie breaker is designed to achieve the educational goal of providing an education within a racially diverse environment and avoiding the segregated education of the past.
The core of the School District's statutory argument is that the open choice plan is not discrimination or preference as meant by law or understood by the average informed voter. The School District contends that properly understood, the tie breaker is racially neutral. It argues that the tie breaker differs from the "reverse discrimination" racial preference programs prohibited by RCW 49.60.400, where members of one race are given a preference over members of another race.
The School District attempts to demonstrate that its open choice plan restricts both Caucasian and minority students equally. It points out that any student might be prevented from enrolling in the school of his or her choice. Under the open choice plan, an African American student may be prevented from enrolling in a school which is already 76 percent minority, and a Caucasian student may be prevented from enrolling in a school which is already 26 percent Caucasian. For example, "[e]ighty-nine more white students were assigned to Franklin than would have been absent the tiebreaker ... and 27 more nonwhite students to Hale." PICS I, 137 F.Supp.2d at 156 1226 n. 4. The School District also argues that the racial balancing program is not discriminatory or preferential *156 because it does not advance a less qualified student above a more qualified student on the basis of race. It points to a long line of both federal and state court opinions interpreting the fourteenth amendment to the United States Constitution that have found such race neutral balancing plans to be nondiscriminatory and nonpreferential. An average informed voter, argues the School District, would not have understood Initiative 200 (I-200) to prohibit such racially neutral plans.
PICS, on the other hand, contends that RCW 49.60.400 prohibits more than just the "reverse discrimination" style of affirmative action, and that any racially cognizant government decision or action is now unlawful. Illustratively, counsel for PICS conceded at oral argument that under its interpretation our governor would be forbidden to appoint a paid commission to study the effects of potentially discriminatory laws and policies, if the governor wanted the composition of the commission to mirror the racial and ethnic mix of our population.
PICS also argues that Seattle has never suffered de jure segregation and is not justified in using a racial balancing program to remedy merely de facto segregation. We note that although PICS praises the advantages of attending a local school, it does not claim a right to attend the school nearest to home.[4] Courts have considered and rejected any legally protected right to have children attend their nearest school. See Citizens Against Mandatory Bussing v. Palmason, 80 Wash.2d 445, 453, 495 P.2d 657 (1972); accord Bustop, Inc. v. Bd. of Educ., 439 U.S. 1380, 1382-83, 99 S.Ct. 40, 58 L.Ed.2d 88 (1978).[5] Students may be reassigned to other schools on any of a variety of grounds including, but not restricted to, overcrowding, unsafe conditions, the need to balance class sizes, and the accommodation of bus routes.
Reduced to its essence, the School District argues that a race-cognizant (but racially neutral) program which serves legitimate education goals and does not advance a less qualified student over a more qualified student is

not discriminatory or preferential as understood by law or the average informed voter. Reduced to its essence, PICS argues that RCW 49.60.400 prohibits all race-cognizant state action. Both argue that article IX of the state constitution supports their contentions.
ANALYSIS
A. STANDARDS OF REVIEW
Review of Certified Questions. This court may accept certified questions of unsettled state law from other courts. The certified question presents only questions of law. Review is de novo. Rivett v. City of Tacoma, 123 Wash.2d 573, 578, 870 P.2d 299 (1994).
Review of Initiatives. Initiatives will be interpreted from their plain language, if possible. However, when an initiative is susceptible to multiple interpretations, we employ the standard tools of statutory construction to aid our interpretation. W. Petroleum Imps., Inc. v. Friedt, 127 Wash.2d 420, 423, 899 P.2d 792 (1995); Seeber v. Pub. 157 Disclosure Comm'n, 96 Wash.2d 135, 139, 634 P.2d 303 (1981) (citing State ex rel. Pub. *157 Disclosure Comm'n v. Rains, 87 Wash.2d 626, 633 n. 5, 555 P.2d 1368 (1976)). The words of an initiative will be read "as the average informed lay voter would read [them]." Friedt, 127 Wash.2d at 424, 899 P.2d 792 (citing Estate of Turner v. Dep't of Revenue, 106 Wash.2d 649, 654, 724 P.2d 1013 (1986)). If necessary, we will consider the official voters pamphlet. State v. Thorne, 129 Wash.2d 736, 763, 921 P.2d 514 (1996) (citing Hi-Starr, Inc. v. Liquor Control Bd., 106 Wash.2d 455, 460, 722 P.2d 808 (1986)).
Initiatives are presumed constitutional. Gerberding v. Munro, 134 Wash.2d 188, 196, 949 P.2d 1366 (1998). If an initiative, like a statute, "is susceptible of several interpretations, some of which may render it unconstitutional, the court, without doing violence to the legislative purpose, will adopt a construction which will sustain its constitutionality if at all possible to do so." State ex rel. Morgan v. Kinnear, 80 Wash.2d 400, 402, 494 P.2d 1362 (1972) (citing State v. Dixon, 78 Wash.2d 796, 479 P.2d 931 (1971)). Initiatives may not be used to circumvent the constitutionally prescribed methods of amending the state constitution. Gerberding, 134 Wash.2d at 210-11 n. 11, 949 P.2d 1366. When legislating by initiative, the people "remain subject to the mandates of the Constitution." Id. at 196, 949 P.2d 1366 (citing Culliton v. Chase, 174 Wash. 363, 373-74, 25 P.2d 81 (1933)).
B. HISTORY
RCW 49.60.400 is best understood in the context of the history of civil rights, race relations, education, and school segregation. The State of Washington has a rich and unique history. Washington became a state and adopted its constitution more than 100 years after the federal constitution, and decades after the civil war and civil war amendments to the federal constitution. The stirring issues before our state constitutional framers differed from those before the framers of the national government. Our state constitution begins with a lengthy Bill of Rights; our federal constitution has one tacked on at the end. Our state constitution is a complete charter establishing the day to day operation of a government of general powers, rather than the specific grant of limited powers embodied by the federal constitution. Unsurprisingly, our state constitution is significantly different from the federal constitution. Strikingly, the treatment of education in the Washington Constitution is singular among states. See Seattle Sch. Dist. No. 1 v. State, 90 Wash.2d 476, 497-98, 585 P.2d 71 (1978) (surveying state constitutions). Our constitution sets education as the State's highest priority, declaring it to be the "paramount duty" of state government. Const. art. IX, § 1.
The Washington constitutional convention delegates were practically unanimous in drawing up an education article which protected the common school fund and set up a democratic, nonsectarian system of public education. The Tacoma Daily Ledger ran a series of four editorials featuring an educational system for the new state. See Quentin Shipley Smith, Analytical Index to The Journal of the Washington State Constitutional Convention 1889, at 685 (Beverly Paulik Rosenow ed., 1999). The Tacoma Daily Ledger wrote that education should be "the paramount duty of the state." Tacoma Daily Ledger, July 1, 1889. The British colony Victoria (now known as Australia) was admired for its uniformity in charts, manuals, methods, and highly competent instructors.

Tacoma Daily Ledger, July, 3, 1889. These newspaper editorials and ensuing debates culminated in two sections of the state constitution.

Article IX of our constitution states in relevant part:

It is the paramount duty of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste, or sex.

The legislature shall provide for a general and uniform system of public schools. The public school

system shall include common schools, and such high schools, normal schools, and technical

schools as may hereafter be established. But the entire revenue derived from the common school

158

fund and the state tax for common schools shall *158 be exclusively applied to the support of the

common schools.

Const. art. IX, §§ 1-2.

In 1890, the first state legislature expressed the breadth of the states paramount duty to educate:

It shall be the duty of all teachers to endeavor to impress on the minds of their pupils the principles of morality, truth, justice, temperance and patriotism; to teach them to avoid idleness, profanity and falsehood; to instruct them in the principle of free government, and to train them up to the true comprehension of the rights, duty and dignity of American citizenship.

Laws of 1890, ch. XII, § 42, at 371.

This court has unambiguously held that article IX, section 1 imposes upon this State the mandatory and paramount duty to provide a general and uniform education without distinction or preference on account of race to all children in this state. Seattle Sch. Dist. No. 1, 90 Wash.2d at 517, 585 P.2d 71. Our constitution is unique in placing paramount value on education for citizenship. See id. at 497-99, 516-17, 585 P.2d 71.[6]

Further, after careful consideration of the language and purpose of article IX, section 1, we held that the "paramount" duty to provide a general and uniform education was not merely a duty that was "important" but rather a duty that was "superior in rank, above all others, chief, preeminent, supreme, and in fact dominant." Seattle Sch. Dist. No. 1, 90 Wash.2d at 511, 585 P.2d 71. This duty is borne by the State and is not discharged by delegating the responsibility to local districts. Accordingly, we recognized that the constitution required that the State, "provide for the fully sufficient and ample funding of the program by appropriation or through regular and dependable tax sources." Id. at 487, 585 P.2d 71.

General and uniform education, within the meaning of our constitution, is far broader than merely reading, writing, and arithmetic:

[T]he State's constitutional duty goes beyond mere reading, writing, and arithmetic. It also embraces broad educational opportunities needed in the contemporary setting to equip our children for their role as citizens and as potential competitors in today's market as well as in the marketplace of ideas. Education plays a critical role in a free society. It must prepare our children to participate intelligently and effectively in our open political system to ensure that system's survival. It must prepare them to exercise their First Amendment freedoms both as sources and receivers of information; and, it must prepare them to be able to inquire, to study, to evaluate and to gain maturity and understanding.

Seattle Sch. Dist. No. 1, 90 Wash.2d at 517-18, 585 P.2d 71 (citations omitted).

This is not the first time we have considered the pressing issues of public education and segregation. Previously, the question posed to this court was whether the federal constitution's equal protection clause permitted school districts to voluntarily desegregate. However, it is within the historical context unique to our state that our constitutional jurisprudence must be understood.

We first entered school desegregation waters in 1972. See State ex rel. Citizens Against Mandatory Bussing v. Brooks, 80 Wash.2d 121, 492 P.2d 536 (1972). Again, the case involved the Seattle School District's attempt to desegregate. A group of citizens brought a recall effort against the school board. We held that an attempt to desegregate public education was not a recallable offense. Id. at 128, 492 P.2d 536. We noted with approval that voluntary desegregation of public education was an appropriate exercise of discretion. "`School authorities are traditionally charged with 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 of the district as a whole. To do this as an educational 159 policy is within the broad discretionary powers of school authorities.'" Brooks, 80 Wash.2d at *159 128, 492 P.2d 536 (quoting Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) ).
We also held that allowing the recall effort to go forward on those grounds would offend the principles underlying the Fourteenth Amendment. Brooks, 80 Wash.2d at 128-29, 492 P.2d 536. We also found the fact the segregation was de facto insignificant. "Reason impels the conclusion that, if the constitution supports court directed mandatory bussing to desegregate schools in a system which is dual `de jure,' then such bussing is within the appropriate exercise of the discretion of school authorities in a system which is dual `de facto.'" Id.
Shortly afterward, we considered the plan itself. Palmason, 80 Wash.2d 445, 495 P.2d 657. The same citizen's group had persuaded a judge to enjoin implementation of the desegregation plan. We dissolved the injunction. While that case dealt mostly with the appropriate scope of judicial review of a school board decision, we noted that the school district did not abuse its discretion by pursuing desegregation:
in concluding that unless such a program is undertaken, there is no hope that fear and hostility can be replaced by understanding and acceptance, both of which are required if the children of this state are to be prepared in school to act as enlightened and humane citizens when they reach adulthood.
Id. at 456, 495 P.2d 657. We relied in part on the danger that allowing a referendum on administrative decisions "would enable the voters of any community to frustrate the purpose of Const. art 9, § 1." Id. at 449, 495 P.2d 657. Finally, we concluded that there was no right under Washington law to attend a local school or the school of the student's choice. Id. at 453, 495 P.2d 657.
We returned to the subject the next year in the context of law school admissions. DeFunis v. Odegaard, 82 Wash.2d 11, 507 P.2d 1169 (1973), judgment vacated by 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974), and reinstated by 84 Wash.2d 617, 529 P.2d 438 (1974). DeFunis, a Caucasian male law school candidate, was not admitted to the University of Washington law school; several minority candidates with lower test scores were. He sued, claiming that the Fourteenth Amendment was offended by any consideration of race in law school admissions, even for the salutary purpose of desegregating the practice of law. DeFunis, 82 Wash.2d at 25, 507 P.2d 1169. We rejected his claim. We declared in DeFunis that "the constitution is color conscious to prevent the perpetuation of discrimination and to undo the effects of past segregation." Id. at 29, 507 P.2d 1169. We found that this State had an overwhelming and compelling need to have minority judges and attorneys. Id. at 32-33, 507 P.2d 1169.
This court has repeatedly and clearly found that segregation offends the values of our national constitution, be that segregation de facto or de jure, and that school districts are empowered to work to end that discrimination.
C. DESEGREGATION AND REVERSE DISCRIMINATION
Attempts to desegregate our nation's schools, businesses, and institutions have sometimes led to claims of reverse discrimination. Historically, courts have distinguished between reverse discrimination and racially neutral programs. For our purposes, reverse discrimination refers to programs that grant a preference to less qualified persons over more qualified persons based upon race. Cf. Johnson v. Cent. Valley Sch. Dist. No. 356, 97 Wash.2d 419, 645 P.2d 1088 (1982). Reverse discrimination has sometimes been referred to as the "stacked

deck" approach to achieve racial balance. See, e.g., Coalition for Econ. Equity v. Wilson, 122 F.3d 692, 707 n. 16 (9th Cir.1997). Racially neutral programs treat all races equally and do not provide an advantage to the less qualified, but do take positive steps to achieve greater representation of underrepresented groups. Racially neutral programs have been referred to as "reshuffle" programs. Id. at 707 n. 16.
A Ninth Circuit's observation is illustrative of our understanding of the difference between stacked deck affirmative 160 action programs *160 and neutral racial balancing programs:
We have recognized, however, that "`stacked deck' programs [such as race-based `affirmative action'] trench on Fourteenth Amendment values in ways that `reshuffle' programs [such as school desegregation] do not." Unlike racial preference programs, school desegregation programs are not inherently invidious, do not work wholly to the benefit of certain members of one group and correspondingly to the harm of certain members of another group, and do not deprive citizens of rights.
Wilson, 122 F.3d at 707 n. 16 (1997) (emphasis added) (quoting Associated Gen. Contractors of Cal. v. S.F. Unified Sch. Dist., 616 F.2d 1381, 1387 (9th Cir.1980)). This difference between "preference programs" and other types of affirmative action measures has been recognized in other contexts. Said one scholar:
Perhaps the best way to understand the distinction between affirmative action and preferences is that in order for a person to receive a preference, another person 0907 whether identifiable or not0907must suffer discrimination. For example, the use of busing to achieve school integration is not a preference. The goal of busing is to provide children with an education in an integrated setting, a benefit that accrues to all races. Further, busing does not deny any child the opportunity to go to school, and the burden of being sent to a different school is generally borne by children of all races.
Note, The Constitutionality of Proposition 209 as Applied, 111 Harv. L.Rev.2081, 2084-85 (1998) (footnotes omitted); accord Neil S. Hyytinen, Proposition 209 and School Desegregation Programs in California, 38 San Diego L.Rev. 661 (2001).[7]
The writings of Justice Hale help to crystallize the distinction between preferential affirmative action or reverse discrimination and race neutral balancing. Writing for the majority in Palmason, Justice Hale upheld a racially neutral bussing integration program which treated minorities and Caucasians alike saying:
But we cannot say that the board abused its discretion in concluding that unless such a program is undertaken, there is no hope that fear and hostility can be replaced by understanding and acceptance, both of which are required if the children of this state are to be prepared in school to act as enlightened and humane citizens when they reach adulthood.
Palmason, 80 Wash.2d at 456, 495 P.2d 657. One year later in DeFunis, this court upheld, on Fourteenth Amendment grounds, a clearly "preferential" program where minorities with lower undergraduate grades and law school admission test scores were admitted to the University of Washington School of Law as part of an affirmative action program to achieve greater diversity among lawyers. There, Justice Hale dissented declaring: "Racial bigotry, prejudice and intolerance will never be ended by exalting the political rights of one group or class over those of another. The circle of inequality cannot be broken by shifting the inequities from one man to his neighbor." DeFunis, 82 Wash.2d at 45, 507 P.2d 1169.
Finally, of current significance is the movement during the late 1990s aimed at curtailing affirmative action, which culminated in Washington with the vote on I-200. Many of its proponents saw no significant difference between oppressive laws, traditions, and policies used to separate0907and subjugate 0907based on race, such as Jim Crow laws, and race conscious policies to end racial oppression and segregation. Cf. John Carlson, I-200: The Argument in Favor, Seattle Times, Feb. 1, 1998, at B5. Whether reverse discrimination was justified or necessary to reverse the effects or racial discriminatory practice of the past was hotly debated. The preference programs, it was argued, suggested to minorities that they could not compete without special help, rather than functioning as 161 a *161 method of overcoming historical oppression. See, e.g., David Postman, Debate Focuses On Fix For

`White Privilege,' Seattle Times, Oct. 10, 1998, at A11. Amid this heated national debate, California voters, in 1996, passed Proposition 209, and two years later Washington voters followed suit by adopting I-200, now codified as RCW 49.60.400.
RCW 49.60.400 was promoted as a civil rights measure that eliminated racial preferences in public employment, contracting and education. While similar in many ways, it was not the same measure as California's Proposition 209. Most importantly, the language differed significantly. Also, structurally, Proposition 209 was a proposed amendment to the California Constitution, while I-200 was a proposed statutory change. After the Washington election, the populist antiaffirmative action movement faded.[8] In 1997, Houston, Texas voters rejected a measure that would have dismantled the city's contracting program, which granted preferences to minority and women contractors. R.A. Dyer, Race Preference Foes Across U.S. Face Uphill Fight I Houston Vote Illustrates Power of Affirmative Action's Support, Houston Chronicle, Nov. 9, 1997, at 1. A clone of Proposition 209 failed to reach the ballot in Florida. Sylvia R. Lazos Vargas, Judicial Review of Initiatives and Referendums in Which Majorities Vote on Minorities' Democratic Citizenship, 60 Ohio St. L.J. 399, 419 n. 76 (1999). With Washington's unique historical perspective in mind, we turn to the certified questions.[9]
D. ARTICLE IX
We are invited by the Ninth Circuit and the parties to determine whether article IX, sections 1 and 2 of the Washington State Constitution requires measures to mitigate de facto segregation of schools, or merely permits such efforts. Because it is of such undoubted significance to the statutory questions, we will briefly address this before turning to the statutory question. We have never squarely addressed this issue in the context of our state constitution. Our racial segregation cases have been analytically grounded on the Fourteenth Amendment. However, as Judge Rothstein noted, these cases were decided within the context of education and Washington's unique approach to the State's paramount duty to provide a general and uniform basic education to all children regardless of race, color, caste, or sex. The School District argues that an integrated education is integral to a general and uniform basic education because a segregated education is an inferior education. It contends that students who are provided a racially and ethnically rich educational experience are better equipped to live and succeed in a racially and ethnically diverse world.
Historically, courts have often treated racial balancing programs in education different from similar programs involving employment, public contracts and housing. See, e.g., Brown v. Bd. of Educ., 347 U.S. 483, 493, 74 S.Ct. 686, 98 L.Ed. 873 (1954); see also Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 162 L.Ed.2d 750 (1978). First, *162 the justifications for racial integration are strong and lie close to the central mission of public schools. The goals of teaching tolerance and cooperation among the races, of molding values free of racial prejudice, of preventing minority students from becoming isolated from the rest of the educational system, and eliminating or preventing the emergence of a problematic class of "minority schools" are integral to the mission of public schools. See, e.g., Swann., 402 U.S. at 16, 91 S.Ct. 1267; Brown, 347 U.S. at 493, 74 S.Ct. 686; Citizens for Better Educ. v. Goose Creek Consol. Indep. Sch. Dist., 719 S.W.2d 350, 352-53 (Tex.Ct.App.1986) ("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."). As one court noted:
In a society such as ours, it is not enough that the 3 R's are being taught properly for there are other vital considerations. The children must learn to respect and live with one another in multiracial and multi-cultural communities and the earlier they do so the better. It is during their formative school years that firm foundations may be laid for good citizenship and broad participation in the mainstream of affairs. Recognizing this, leading educators stress the democratic and educational advantages of heterogeneous student populations and point to the disadvantages of homogeneous student populations, particularly when they are composed of a racial minority whose separation generates feelings of inferiority. It may well be, as has been suggested, that when current attacks against housing and economic discriminations bear fruition, strict neighborhood school districting will present no problem. But in the meantime the states may

not justly deprive the oncoming generation of the educational advantages which are its due, and indeed, as a nation, we cannot afford standing by.
Booker v. Bd. of Educ., 45 N.J. 161, 170-71, 212 A.2d 1 (1965); see also Bd. of Educ. of Englewood Cliffs v. Bd. of Educ. of Englewood, 257 N.J.Super. 413, 464-65, 470, 608 A.2d 914 (App.Div.1992), aff'd mem., 132 N.J. 327, 625 A.2d 483, (1993); see generally Palmason, 80 Wash.2d 445, 495 P.2d 657. We are not so far removed from the time when minorities were systematically excluded from educational benefits to not be wary of any policy or practice that might deprive any child of an ample, general and uniform education. See generally Peter Irons, Jim Crow's Children: The Broken Promise of the Brown Decision (2002) (describing in detail the systematic deprivation of education of freed slaves).
Further, there is strong empirical evidence that a racially diverse school population provides educational benefits for all students. Most students educated in racially diverse schools demonstrated improved critical thinking skills0907the ability to both understand and challenge views which are different from their own. PICS I, 137 F.Supp.2d at 1226; see also Erica Frankenberg & Chungmei Lee, Race in American Public Schools: Rapidly Resegregating School Districts (The Civil Rights Project, Harvard Univ., Aug. 8, 2002); Gary Orfield, Schools More Separate: Consequences of a Decade of Resegregation (The Civil Rights Project, Harvard Univ., July 2001); Janet Ward Schofield & H. Andrew Sagar, Desegregation, School Practices, and Student Race Relations (1985). Research has also shown that a diverse educational experience improves race relations, reduces prejudicial attitudes, and achieves a more democratic and inclusive experience for all citizens, PICS I, 137 F.Supp.2d at 1226; see also Frankenberg & Lee, supra; Irons, supra; Michal Kurlaender & John T. Yun, Is Diversity a Compelling Educational Interest? Evidence from Metropolitan Louisville (The Civil Rights Project, Harvard Univ., August 2000); Orfield, supra; Ward Schofield & Sagar, supra.
In some circumstances the federal constitution requires positive measures to overcome racial segregation. Admittedly, we have never explicitly held that the state constitution requires racial integration. We have, however, been unwavering in holding that article IX imposes upon the State the paramount duty to provide an ample, 163 general, and uniform basic education to all children. Therefore, if it is determined that in a *163 contemporary setting de facto segregated schools cannot provide children with the educational opportunities necessary to equip them for their role as citizens, then the state constitution would most certainly mandate integrated schools. However, given the procedural posture of this case and the fact that we can answer the certified question without deciding the constitutionality of RCW 49.60.400, we do not reach the question of whether the state constitution merely permits or requires integration in public schools. We accordingly turn to the statutory questions.
E. THE MEANING OF RCW 49.60.400: PREFERENCE AND DISCRIMINATION
The court must decide whether the open choice enrollment plan violates RCW 49.60.400. This turns on the meanings of two words; "preference" and "discrimination." PICS argues that the words plainly and unambiguously bar any consideration of race whatsoever. The School District argues that RCW 49.60.400 should be understood only to bar programs that promote a less qualified applicant over a more qualified applicant. Alternatively, they argue that to the extent RCW 49.60.400 bars any consideration of race to avoid or remedy de facto segregation of public schools, it is unconstitutional. If the statute's meaning is plain and unambiguous, as PICS claims, then no construction is necessary. If it is not, consideration of other authorities, such as case law and ballot materials, is appropriate.
RCW 49.60.400 reads:
(1) The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.
(2) This section applies only to action taken after December 3, 1998.

(3) This section does not affect any law or governmental action that does not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin.
(4) This section does not affect any otherwise lawful classification that:
(a) Is based on sex and is necessary for sexual privacy or medical or psychological treatment; or
(b) Is necessary for undercover law enforcement or for film, video, audio, or theatrical casting; or
(c) Provides for separate athletic teams for each sex.
(5) This section does not invalidate any court order or consent decree that is in force as of December 3, 1998.
(6) This section does not prohibit action that must be taken to establish or maintain eligibility for any federal program, if ineligibility would result in a loss of federal funds to the state.
(7) For the purposes of this section, "state" includes, but is not necessarily limited to, the state itself, any city, county, public college or university, community college, school district, special district, or other political subdivision or governmental instrumentality of or within the state.
(8) The remedies available for violations of this section shall be the same, regardless of the injured party's race, sex, color, ethnicity, or national origin, as are otherwise available for violations of Washington antidiscrimination law.
(9) This section shall be self-executing. If any part or parts of this section are found to be in conflict with federal law, the United States Constitution, or the Washington state Constitution, the section shall be implemented to the maximum extent that federal law, the United States Constitution, and the Washington state Constitution permit. Any provision held invalid shall be severable from the remaining portions of this section.
RCW 49.60.400 (emphasis added).[10]
164 The key terms that must be understood to analyze the lawfulness of the open choice *164 enrollment plan are "discriminate against" and "grant preference to." See RCW 49.60.400(1), (3). We must decide whether the terms apply to reverse discrimination as we have defined it (where a less qualified applicant is given advantage over a more qualified applicant), or, as is urged by PICS, whether the initiative forbids all cognizance of race by the State, even to serve the core mission of the schools. We find several difficulties with PICS's position.
First, subsection (3) strongly evidences that some race conscious decisions are acceptable:
(3) This section does not affect any law or governmental action that does not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin.
RCW 49.60.400. This clause strongly implies that RCW 49.60.400 does not ban all government action that is cognizant of race as it would be surplusage otherwise. PICS argues that subsection (3) is merely a restatement of subsection (1), but stated differently. PICS would have us read the initiative as if words did not exist; in this case all of the words in subsection (3). If at all possible, we are required to "give effect to every word, clause and sentence in a statute," leaving no part superfluous. Cox v. Helenius, 103 Wash.2d 383, 387, 693 P.2d 683 (1985). Subsection (3) unequivocally states that some government action within the subject area of the initiative would not be affected, and thus strongly suggests to the average voter that some race conscious action by the government is permissible. Subsection (3) carves out from the prohibition of the statute government action cognizant of race, sex, color, ethnicity, or national origin that does not discriminate against or grant preferential treatment based on the enumerated characteristics.

Second, PICS would have us read RCW 49.60.400 as if it were written: "The state shall not consider race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracts." Put another way, it would have us read the initiative as if the words "shall not discriminate against, or grant preferential treatment to any individual or group on the basis of" did not exist, and instead substitute the word "consider." The words "grant preference" and "discriminate against" have meaning and significance.
The word "preference" also appears in article IX, section 1 of our constitution, which obligates the State to provide ample education "without distinction or preference on account of race, color, caste, or sex." A contemporary dictionary defined "preferred" as "the thing to which it is attached has some advantage over another thing of the same character, which but for this advantage would be like the other." William C. Anderson, A Dictionary of Law: Consisting of Judicial Definitions and Explanations of Words, Phrases, and Maxims, and an Exposition of the Principles of Law: Comprising a Dictionary and Compendium of American and English Jurisprudence 800 (1889). A racially neutral plan, which gives no race an advantage over another, was not a preference within our parlance in 1889, nor is it now. If the School District used a random selection process as a tie breaker (a flip of the coin, for example), we would not, in common parlance, describe the selection as a "discrimination" or "preference." The concept of an advantage given to one over another is integral to the definition of "preference." Because the School District's open choice tie breaker applies equally to members of all races, it may limit minorities and nonminorities alike, and it cannot be said to be preferential based on race.
The meaning of "discriminate against" is less clear. "Discriminate" generally has two meanings in law; to distinguish between and to show prejudice against. One dictionary defines "discriminate" as either "to make a difference in treatment or favor on a class or categorical basis in disregard of individual merit against a certain nationality." Webster's Third New International Dictionary 648 (1993). Alternately, the same dictionary defines 165 "discriminate" *165 as "to distinguish (as objects, ideas, or qualities) by discerning or exposing their differences." Id. The first definition supports the School District's interpretation of the initiative; the second supports PICS.
We conclude that RCW 49.60.400 is subject to more that one interpretation and turn to other sources of authority to aid interpretation. When interpreting RCW 49.60.400 as an average informed Washington State voter would have when it was proposed, we must consider our long standing commitment to the principle that education is a paramount duty of the State. Our courts have repeatedly defined basic education broadly to include preparing students for citizenship and to succeed in the world. Seattle Sch. Dist. No. 1, 90 Wash.2d at 517, 585 P.2d 71. Further, there is considerable evidence that a segregated education is an inferior education.
The average informed voter would be aware of the distinctions drawn between reverse discrimination and race neutral balancing programs sometimes referred to as "stacked deck" and "reshuffle" programs. Subsection (3) of the statute suggests that some race conscious decisions or actions by the State would be permitted. We agree with the School District that the average informed voter would have believed that I-200 only prohibited reverse discrimination where a less qualified person or applicant is given an advantage over a more qualified applicant. An average informed voter would understand that racially neutral programs designed to foster and promote diversity to provide enriched educationally environments would be permitted by the initiative.
Third, where the court finds that a law is susceptible to multiple interpretations, the standard tools of statutory construction apply to determine the voter's intent, including resorting to extrinsic sources. Friedt, 127 Wash.2d at 423, 899 P.2d 792. "[S]tatements contained in the official voters pamphlet also may be considered to ascertain the collective purpose and intent of the people." State v. Thorne, 129 Wash.2d 736, 763, 921 P.2d 514 (1996) (citing Hi-Starr, Inc., 106 Wash.2d 455, 722 P.2d 808).
The proponents of the initiative's own ballot statements provide strong support for our conclusion. The proponents included prominently a statement limiting the reach of I-200:

WHAT INITIATIVE 200 WON'T DO
Initiative 200 does not end all affirmative action programs. It prohibits only those programs that use race or gender to select a less qualified applicant over a more deserving applicant for a public job, contract or admission to a state college or university.
State of Washington Voters Pamphlet, General Election 14 (Nov. 3, 1998) (Statement For I-200) (emphasis added). Given this language, an average voter would have understood that I-200 does not ban all affirmative action programs, and would only prohibit the type of affirmative action we have described as "reverse discrimination" or "stacked deck" programs.
Other ballot statements bolster our interpretation. The official ballot explanatory statement said in part: "The measure does not define the term `preferential treatment,' and does not specify how continued implementation or enforcement of existing laws would be affected if this measure were approved. The effect of the proposed measure would thus depend on how its provisions was interpreted and applied." Id. at 16. This would have put the reasonably informed lay voter on notice that at least some "preferential treatment" may be allowed based upon interpretations and applications.
PICS correctly notes other ballot statements which support its interpretation. For example, the Statement For I-200 is headed: "Our Laws Should Be Colorblind." Id. at 14. Arguably, anything that takes race into account is not colorblind. However, the Statement For I-200 goes on to say "[b]ut instead of ignoring race, the government uses it through the use of racial quotas, preferences and set-asides." Id. (emphasis added). Thus, the emphasis is again placed upon instances of "reverse discrimination," such as college quotas and minority set asides. The general statement, "Our Laws Should be Colorblind," certainly does not overcome the specific declaration, "It 166 prohibits only those *166 programs that use race or gender to select a less qualified applicant over a more deserving applicant." Id.
Finally, PICS argues that we should follow the interpretations given by courts to California's Proposition 209. We find the analytical frameworks and analysis of all of our sister courts useful, but we do not find the comparisons between I-200 and Proposition 209 compelling. First, and critically, although very similar in language, Proposition 209 did not contain the language found in subsection (3):
(3) This section does not affect any law or governmental action that does not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin.
RCW 49.60.400; compare Cal. Const. art. 1, § 31 (Proposition 209 codified). Since this language strongly suggests that I-200 would not prohibit all government acts cognizant of race, the language of I-200 is strikingly different from the language of Proposition 209. Second, the history of California, and in particular the history of its constitution, civil rights legislation, and California courts' jurisprudence in the field of education and civil rights, differs from that of Washington. See generally Hyytinen, supra. California has no equivalent to our seminal Seattle School District No. 1, 90 Wash.2d at 496, 585 P.2d 71. Further, I-200 and Proposition 209 play different roles structurally. Proposition 209 is an amendment to the constitution of California. I-200 was proposed legislation, subject to the constitution of the State of Washington and the underlying principles of article IX, section 1 which mandates as paramount the duty to provide an education to impress upon our children the principles of morality, truth, justice; the critical skills needed in the modern world to equip our children for their roles as citizens and potential competitors in market as well as the marketplace of ideas. See Seattle Sch. Dist. No. 1, 90 Wash.2d at 517-18, 585 P.2d 71. Third, the ballot statements for Proposition 209 and I-200 are markedly different. The ballot statement for Proposition 209 did not have the illuminative language contained in the Statement For I-200 that, "Initiative 200 does not end all affirmative action programs. It prohibits only those programs that use race or gender to select a less qualified applicant over a more deserving applicant...." Fourth, the decisions relating to Proposition 209 relied upon by PICS were published after Washington voters cast their ballots on I-200 and could not have influenced their understanding of the issues presented by I-200. The only cases decided before the vote on I-200 lend support to the proposition that Proposition 209 did not apply to

school desegregation programs. See Wilson, 122 F.3d at 707 n. 16 (Proposition 209 does not apply to school desegregation programs); cf. Kidd v. California, 62 Cal. App.4th 386, 72 Cal.Rptr.2d 758, 761 (1998).
We conclude that RCW 49.60.400 prohibits reverse discrimination where race or gender is used by government to select a less qualified applicant over a more qualified applicant. It does not prohibit the Seattle School District's open choice plan tie breaker based upon race so long as it remains neutral on race and ethnicity and does not promote a less qualified minority applicant over a more qualified applicant.
CONCLUSION
We hold that the open choice plan's use of a racially cognizant tie breaker does not violate RCW 49.60.400. The School District's open choice plan does not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin as meant by law. To the extent the tie breaker is race conscious, it furthers a core mission of public education; to make available an equal, uniform and enriching educational environment to all students within the district.
While we do not reach the constitutional question, we note that article IX imposes on the State the mandatory and paramount duty to provide an education that prepares students for citizenship. This may require positive steps to provide a diverse, culturally rich and racially integrated educational experience.
167 *167 We, therefore, answer the certified question in the negative, and return the case to the federal court for further proceedings consistent with our resolution of the questions of Washington law.
WE CONCUR: JOHNSON, IRELAND, BRIDGE, and OWENS, JJ., and SMITH, J.P.T.
MADSEN, J. (concurring).
The majority stretches to read ambiguity into RCW 49.60.400. I believe the dissent correctly concludes the terms "discriminate" and "preference" in the statute are not ambiguous. The only reasonable interpretation of "discriminate" in the context of this statute is to treat a person or class less favorably than another without regard to individual merit. Webster's Third New International Dictionary 648 (1993). Granting preferential treatment means to provide some advantage to some person or group not available to others. See majority at 164. These two terms represent two sides of the same coin; the statute prohibits both more favorable and less favorable treatment on the basis of a person's or group's race.
However, while I agree with the dissent's conclusion that there is no ambiguity in the statute respecting these terms, I do not agree that the dissent's conclusion follows. In my view, the Seattle School District's open school plan, including its tie breakers, does not favor or disfavor any person or group on the basis of race. All individuals and groups of a particular race are treated the same as those of another race, with the goal of mirroring the community's diversity in the schools. Sometimes that means that an African-American student will prevail in a particular tie breaker situation, and sometimes that means a Caucasian, or Asian, or other racially classified individual will prevail. No particular race is singled out for preferential treatment, and no particular race is discriminated against.
I would find that the statute is unambiguous and that the Seattle School District's open school plan, including its second tie breaker providing for consideration of race, does not violate RCW 49.60.400. Accordingly, in response to the federal court's certified question, I would answer "no," the Seattle School District's use of a racial tie breaker to determine high school assignments does not "discriminate against, or grant preferential treatment to, any individual or group on the basis of race ... color, ethnicity, or national origin in the operation of ... public education" in violation of RCW 49.60.400(1).
I concur in the result reached by the majority.
ALEXANDER, C.J., concurs.
SANDERS, J. (dissenting).

The Court of Appeals for the Ninth Circuit certified the following question of Washington law to this court:
By using a racial tiebreaker to determine high school assignments, does Seattle School District Number 1 "discriminate against, or grant preferential treatment to, any individual or group on the basis of race, ... color, ethnicity, or national origin in the operation of ... public education" in violation of Initiative 200 (I-200), codified at Washington Revised Code § 49.60.400?
Order at 1087 (U.S. Court of Appeals, D.C. No. CV-00-01205-BJR (9th Cir. June 17, 2002)). I posit a plain language analysis of the statute requires an affirmative answer.[1]
168 *168 We interpret initiatives based on the same rules of construction we apply to statutes passed by the legislature. State v. Thorne, 129 Wash.2d 736, 762, 921 P.2d 514 (1996). "[W]here the language of the enactment is plain, unambiguous, and well understood according to its natural and ordinary sense and meaning, the enactment is not subject to judicial interpretation." Id. at 762-63, 921 P.2d 514 (emphasis added). We read initiatives not as attorneys would, but "`as the average informed lay voter would read [them].'" State v. Brown, 139 Wash.2d 20, 28, 983 P.2d 608 (1999) (quoting W. Petroleum Importers, Inc. v. Friedt, 127 Wash.2d 420, 424, 899 P.2d 792 (1995)).
RCW 49.60.400(1) provides in relevant part:
The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race ... in the operation of ... public education....
(Emphasis added.) To discriminate against means to treat one person or class less favorably than another without regard to individual merit. Majority at 164. To grant preferential treatment is to provide an advantage to some person or group not available to others. Majority at 164. Clearly, providing certain students a place at an oversubscribed school, while turning others away on racial grounds is an example of both preferential treatment and invidious discrimination. Because race is the sole factor to determine which students will prevail, the racial tie breaker necessarily runs afoul of the statute. Yet the majority ignores the obvious through a tortured reading of the statute and an unwarranted reliance on extrinsic evidence.[2]
Similarly the majority creates ambiguity where there is mere redundancy and conveniently concludes subsection (3) permits some race-cognizant governmental actions. Majority at 164. Subsection (3) provides the statute "does not affect any law or governmental action that does not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin." RCW 49.60.400(3). That section is merely the inverse of subsection (1), which provides: "The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." RCW 49.60.400(1). The majority justifies its departure from reason by claiming that to recognize a redundant provision would be to "read the initiative as if words did not exist." Majority at 163. But that is precisely what is required of equivalent propositions.[3]See, e.g., 169 In re Disciplinary Proceeding Against Kuvara, 149 *169 Wash.2d 237, 66 P.3d 1057 (2003) (discarding redundant factors of a multifactor test).
Apparently under the impression the statute's exclusive purpose is to eradicate reverse discrimination against whites,[4]see majority at 160-161, both the majority and the concurrence conclude the racial tie breaker does not violate the statute because it applies equally to whites and nonwhites.[5] Majority at 164; concurrence at 167. But "[e]qualizing injustice does not cure it." Seeley v. State, 132 Wash.2d 776, 815, 940 P.2d 604 (1997) (Sanders, J., dissenting). RCW 49.60.400 prohibits preferential treatment on the basis of any race. The fact the procedure may provide preferential treatment to one race in one instance and to another in a subsequent instance does not render it racially neutral, but rather unlawful in both instances.
Our majority also claims the statute is ambiguous because the term "discriminate" has two meanings, to distinguish between and to show prejudice against. Majority at 164. Very true. But the statute plainly states it is unlawful to discriminate against individuals or groups on the basis of race. Thus, the alternative definition of "distinguishing between" does not come into play. Only if the language of the statute is ambiguous may the court

infer the collective intent of the people from the general purposes and structure of the statute or, failing that, from statements contained in the official voters pamphlet. In re Pers. Restraint of Williams, 121 Wash.2d 655, 664, 853 P.2d 444 (1993); Thorne, 129 Wash.2d at 763, 921 P.2d 514. Because RCW 49.60.400 is facially clear and unambiguous, we have no license to construe it further. Hence, the majority's artful interpretation 0907conjured from statements in the voters pamphlet0907has no basis in law.
I therefore respectfully dissent.
[1] Specifically, Judge Rothstein found that "The Washington Constitution ... imposes a duty on school boards to operate racially integrated schools, and recognizes the reality that in some cases, to fulfill that duty, a school board may need to take race into account." PICS I, 137 F.Supp.2d at 1228.
[2] The Ninth Circuit found that "due to Seattle's racial diversity and its racially imbalanced housing patterns, if Seattle's children were simply assigned to the high schools nearest their homes, the high schools would become segregated in fact (`de facto' segregated)." Order at 1088. Counsel for PICS disputed this at oral argument. Given that this order is consistent with the decision of the federal trial court, and given that the matter is on appeal from a federal trial court to a federal appellate court and our appropriate role is limited to deciding questions of Washington law, we decline to reconsider this fact. We, of course, do not intend to bar the parties from relitigating this matter in the appropriate forum.
[3] It appears that the only students subject to "assignment" are those students seeking to attend an oversubscribed school. See Order at 1089-90. Given the record before us, we cannot ascertain how many students are or will be affected by this, but the School District contends it is very few.
[4] We note that some students face dauntingly difficult commutes to their assigned schools. At oral argument, counsel for the School District informed us that every student has a choice of attending either a highly regarded school or a local school (which may be the same school). It appears that the students with the most difficult commutes refused to make any election, and were assigned to an undersubscribed school without consideration of their location. On the record and order before us, it is impossible to determine what their commute would have been had they participated in the selection process.
[5] Students do not have a statutory right to be provided with transportation to schools. See RCW 28A.160.010 ("[E]ach board of directors shall determine ... which individual students shall be transported"). If a school district indeed required a student to spend hours each day on a bus thereby effectively denying the student the opportunity to participate in school extracurricular activities and drastically reducing study time, it may implicate the State's paramount duty to provide a basic and uniform education. The parties do not argue whether article IX imposes a duty to provide educational opportunities within reasonably accessible travel time and distance to students, and we do not address the issue.
[6] We recognize that the State of Florida recently amended its constitution to provide that education is "a paramount duty." Fla. Const. art. IX, § 1.
[7] Subsequent decisions of the California courts have found Proposition 209 does bar any consideration of race in many contexts. See, e.g., Hi-Voltage Wire Works, Inc. v. City of San Jose, 24 Cal.4th 537, 101 Cal.Rptr.2d 653, 12 P.3d 1068 (2000). Washington voters, of course, could not have been aware of these postelection cases.
[8] The Seattle Times recently reported:
When Initiative 200 passed four years ago, it looked as if Washington was on the cutting edge of a nationwide movement to scrap affirmative action.
Today, Washington is an anomaly, one of only two states to prohibit public agencies from considering race and gender in hiring, public-works construction and school admissions. The political movement that spawned I-200 has all but fizzled.
Alex Fryer, Affirmative-Action Fight Shifts from Ballot Box to Courtroom; Judges Being Asked to Clarify State's I-200, Seattle Times, Nov. 25, 2002, at A1.

[9] We note in passing that an important issue is not before the court: whether this plan is narrowly tailored to meet a compelling state interest. However, a considerable amount of PICS's briefing is essentially devoted to it. PICS argues the open choice enrollment plan is not narrowly tailored to meet a compelling state interest because it takes no notice of intraminority diversity, and because every school would be diverse without the tie breaker, the School District makes no effort to put the undersubscribed schools in racial balance. While these arguments are interesting, they are misplaced. They should be addressed in the context of PICS's equal protection clause argument which has been raised to the federal court. The federal court has not requested that this court advise it on the equal protection clause.
[10] The code reviser added a header to 49.60.400 which reads: "Discrimination, preferential treatment prohibited." Headings are added by the code reviser subsequent to enactment, as part of codification. RCW 44.20.050. They are of little use as a guide to the intent of the legislature. Cf. State v. Arndt, 87 Wash.2d 374, 379, 553 P.2d 1328 (1976).
[1] Although we are faced with a legal issue, making facts beside the point, I must express my fundamental disagreement with majority's assertion that the Seattle School District is in any way "segregated." Webster's Third New International Dictionary (1993) defines "segregated" as "set apart or separated from others of the same kind or group" and "restricted to members of one group or esp. one race by a policy of segregation." Id. at 2057. There are no schools in the Seattle School District that conform to that definition. The following chart provides the racial constitution of Seattle public high school students in 2001. See Br. of Appellant, app. A.

School Ballard * Chief Sealth Cleveland Franklin * Garfield * Ingraham Nathan Hale * Rainier Beach Roosevelt * West Seattle

white 62.5%
31% 10% 19.8% 47.2% 30% 60.8%
8% 54.8%
47%

black 8.9% 18% 35%
34.6% 34.7%
19% 12.1%
52% 6.7%
15%

Asian 4.7% 27% 43%
39.3% 12.5%
38% 17.4%
30% 26.8%
26%

Latino 9.6% 21% 10% 5.5% 4.4% 9% 6.4% 8% 8.7% 10%

Native American
4.3% 3% 2%
0.8% 1.1%
4% 3.3%
2% 3% 2%

As this chart indicates, Seattle is hardly a segregated school DISTRICT. * Oversubscribed Seattle high schools indicating diversity of student body without use of racial tie breaker.

[2] Even if it were appropriate to take into account the voters pamphlet as extrinsic evidence of the voters' intent, it is clear from the statement in support of the initiative the voters intended "our laws [to] be colorblind," and to prohibit the use of "racial quotas, preferences and set-asides." Excerpts of the Record at 176. The Seattle School District's racial tie breaker is precisely the type of governmental action the voters sought to prohibit.

[3] It is one thing to quibble over the classification of a specific term within a general category. See, e.g., Fraternal Order of Eagles, Tenino Aerie No. 564 v. Grand Aerie of Fraternal Order of Eagles, 148 Wash.2d 224, 273, 59 P.3d 655 (2002) ("If `fraternal organizations' means the same as `club,' then the phrase `including fraternal organizations' would be redundant. Therefore, to avoid redundancy we must begin with the assumption the two terms are not the same."), cert. denied, ___ U.S. ___, 123 S.Ct. 2221, 155 L.Ed.2d 1107 (2003) (No. 02-1415). It is quite another matter to define identical clauses differently because their redundancy offends the senses.

[4] The majority's selective examination of the voters pamphlet omits reference to the Rebuttal of Statement Against I-200, which states: "the government should not use race or gender to treat applicants for employment or education differently. Why? Because all Americans deserve protection from race or sex discrimination. That's the principle at stake in this election." State of Washington Voters Pamphlet, General Election 14 (Nov. 3, 1998). Clearly "all Americans" includes Americans of all races.

[5] The majority upholds the Seattle School District's racial tie breaker as legitimate means of achieving "diversity" in our public schools (majority at 166-167), yet it conceives of racial diversity in simplistic terms as a dichotomy between white and nonwhite, as if to say all nonwhites are interchangeable (majority at 161-162, 164). As a theory of racial politics, this view is patently offensive and as a policy to promote racially diverse schools, wholly inadequate.
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 377 F.3d 949 (2004)
PARENTS INVOLVED IN COMMUNITY SCHOOLS, a Washington nonprofit corporation, Plaintiff-Counter-Defendant-Appellant, v.
SEATTLE SCHOOL DISTRICT, NO. 1, a political subdivision of the State of Washington; Joseph Olchefske, in his official capacity as
superintendent; Barbara Schaad-Lamphere, in her official capacity as President of the Board of Directors of Seattle Public Schools; Donald
Nielsen, in his official capacity as Vice President of the Board of Directors of Seattle Public Schools; Steven Brown; Jan Kumasaka; Michael Preston; Nancy Waldman, in their official capacities as members of the Board of Directors, Defendants-Counter-Claimants-Appellees.
No. 01-35450.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted December 4, 2001. Filed April 16, 2002.
Withdrawn and Question Certified June 17, 2002. Certificate of Finality Received September 8, 2003. Reargued and Resubmitted December 15, 2003.
Filed July 27, 2004.
950*950 951*951 952*952 953*953 Daniel B. Ritter and Harry J.F. Korrell (argued), Davis Wright Tremaine LLP, Seattle, WA, for the plaintiff-appellant.
Michael Madden (argued) and Carol Sue Janes, Bennett Bigelow & Leedom, P.S., and Mark S. Green, Office of the General Counsel, Seattle School District No. 1, Seattle, WA, for the defendant-appellees.
Sharon L. Browne, Pacific Legal Foundation, Sacramento, CA, and Russell C. Brooks, Pacific Legal Foundation, Bellevue, WA, for amici curiae Pacific Legal Foundation, American Civil Rights Institute, American Civil Rights Union, and Center for Equal Opportunity.
Paul J. Lawrence, Preston Gates & Ellis LLP, Seattle, WA, for amicus curiae American Civil Liberties Union of Washington.
Before REAVLEY,[*] O'SCANNLAIN, and GRABER, Circuit Judges.
Opinion by Judge O'SCANNLAIN; Dissent by Judge GRABER
O'SCANNLAIN, Circuit Judge.

Following the Washington Supreme Court's resolution of certified state-law questions, we must decide whether the use of race in determining which students will be admitted to oversubscribed high schools in Seattle, Washington, violates the federal Constitution's Equal Protection Clause.
I
This opinion marks the fourth time a federal court has addressed the Seattle Public Schools' use of an explicit "racial tiebreaker" in choosing which student applicants it will admit to the City's most popular public high schools. See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 137 F.Supp.2d 1224 (2001) [Parents Involved I], rev'd, 285 F.3d 1236 (9th Cir.2002) [Parents Involved II], withdrawn, 294 F.3d 1084 (9th Cir.2002), certifying questions, 954*954 294 F.3d 1085 (9th Cir. 2002) [Parents Involved III]. We draw the following restatement of facts largely from Parents Involved II.
A
Seattle School District Number 1 (the "School District") operates ten public high schools: Ballard, Chief Sealth, Cleveland, Franklin, Garfield, Ingraham, Nathan Hale, Rainier Beach, Roosevelt, and West Seattle. Four of these (Ballard, Ingraham, Nathan Hale, and Roosevelt) are located north of downtown Seattle; of the remaining six, five (Chief Sealth, Cleveland, Franklin, Garfield, and Rainier Beach) are located south of downtown, and one (West Seattle) is located directly west of downtown.
These schools vary widely in quality, as measured by such factors as standardized test scores,[1] numbers of college preparatory and Advanced Placement (AP) courses offered and the availability of an Internal Baccalaureate (IB) program, percentages of students taking AP courses and SATs, percentages of graduates who attend college, Seattle Times college-preparedness rankings, University of Washington rankings, and disciplinary statistics. Moreover, some of the schools offer unique educational programs or opportunities not offered in other schools.[2]
The School District has never been segregated by law. However, due to Seattle's racially imbalanced housing patterns,[3] if Seattle's children were simply assigned to the high schools nearest their homes, those schools would tend to reflect such imbalance. That is, the demographic profile of the individual high schools would not mirror the demographic makeup of the city's student population as a whole.[4] As part of its continuing efforts to prevent such imbalance 955*955 and to promote racial diversity in its high schools, the School District has adopted an open choice plan instead of simply assigning students to the high schools nearest their homes. Pursuant to this system, each student may choose to attend any of the ten high schools in the city, so long as there is room available in that school.
The District's open choice plan provides for a multi-step application process. Each student is first asked to rank the high schools he or she would like to attend. If a student is not admitted to his or her first-choice school because that school is full, the School District attempts to assign him or her to his or her second-choice school, and so on. If a student is

not admitted to any of his or her chosen schools, he or she receives a mandatory assignment to a school with available space.
Not surprisingly, a significant problem arises when a school becomes "oversubscribed" — that is, when more students want to attend that school than there are spaces available. For the academic year 2000-01, five of the School District's high schools were oversubscribed and five were undersubscribed.[5] The magnitude of oversubscription during the 2000-01 school year underscores its problematic nature: Approximately 82 percent of students selected one of the oversubscribed high schools as their first choice, while only about 18 percent picked one of the undersubscribed high schools as their first choice.
To resolve the dilemma of oversubscription, the School District's high school assignment plan uses a series of four "tiebreakers" to determine which students will be admitted to each oversubscribed school. The first tiebreaker gives a preference to students with siblings already attending the requested school. This tiebreaker accounts for somewhere between 15 percent and 20 percent of high school assignments. If a school is still oversubscribed after applying this first tiebreaker, the School District proceeds to a second tiebreaker, which is based entirely on race. For purposes of the racial tiebreaker, students are deemed to be of the race specified in their registration forms, which ask parents to identify their child's race. Because registration must be completed in person by a parent, if a parent declines to specify a racial category, the School District assigns the student a category based on a visual inspection of the parent (and, if present, the student) at the time of registration. It is this second — racial — tiebreaker that spawned the present suit.
Use of the racial tiebreaker is designed to balance the racial makeup of the city's public high schools. Accordingly, if an oversubscribed school's demographic profile deviates from the overall demography of Seattle's student population (approximately 40 percent white and 60 percent non-white) by more than a set number of percentage points, the School District designates that school "integration positive." The racial tiebreaker is then applied in the course of determining admissions to such schools, so that students whose race (coded by the School District simply as white or non-white) will push an integration positive school closer to the desired racial ratio are 956*956 automatically admitted.[6] Thus, at Franklin (for instance), whites are admitted preferentially because they are white; and at Ballard, nonwhites are admitted preferentially because they are not white.[7] Ultimately, the School District's use of this racial tiebreaker determines where about 10 percent of applicants will be admitted.
Once all students of the preferred racial category are admitted to an oversubscribed high school, any remaining "ties" are broken by resort to a third variable: distance. Quite simply, applicants are admitted on the basis of the mileage between their homes and the school to which they seek admission, with those who live closest admitted first. Although a fourth tiebreaker exists — a random lottery — it rarely is invoked because distances are calculated to one hundredth of a mile for purposes of the preceding tiebreaker.
B
Parents Involved in Community Schools ("Parents") is "a nonprofit corporation formed by parents whose children have been or may be denied admission to the high schools of their

choosing solely because of race." It commenced this legal action in July of 2000, contending that the School District's use of the racial tiebreaker for high school admissions is illegal under both state and federal law. Specifically, Parents alleged that by using race to decide who will be admitted to the oversubscribed high schools, the School District engages in illegal racial discrimination prohibited by the Washington Civil Rights Act ("Initiative 200"),[8] the Equal Protection Clause of the Fourteenth Amendment,[9] and Title VI of the Civil Rights Act of 1964.[10]
957*957 Both Parents and the School District moved for summary judgment on all claims; neither contended that genuine issues of material fact precluded summary judgment. In a published opinion dated April 6, 2001, the district court upheld the use of the racial tiebreaker under both state and federal law, granting the School District's motion and denying the Parents's. See Parents Involved I, 137 F.Supp.2d at 1240. Parents timely filed an appeal in this court and, on April 16, 2002, we issued an opinion reversing the district court's decision. Acting "in our constitutionally ordained role as oracles of Washington law," Parents Involved II, 285 F.3d at 1243, we prophesied that the School District's use of the racial tiebreaker violated Initiative 200. Id. at 1244.[11] Simultaneously, we enjoined the School District from using the racial tiebreaker in its system of high school admissions pending further order from this court. Id. at 1257.
While the School District's petitions for rehearing and rehearing en banc were pending before us, it "bec[a]me clear that [we could not] provide a definitive [legal] answer before assignments [were to] be made for the 2002-03 year, and therefore, ... that our sole reason for not certifying this question to the Washington Supreme Court ha[d] dissolved." Parents Involved III, 294 F.3d at 1086. Consequently, we granted the petition for rehearing, withdrew our opinion, and vacated our injunction. See id. Simultaneously, we entered an order certifying to the Supreme Court of Washington the question whether
[b]y using a racial tiebreaker to determine high school assignments, [the] Seattle School District Number 1 "discriminate[s] against, or grant[s] preferential treatment to, any individual or group on the basis of race, ... color, ethnicity, or national origin in the operation of public education" in violation of Initiative 200.... ?
Id. at 1087.
The Supreme Court of Washington accepted certification, heard oral argument in the matter, and on June 26, 2003 issued an opinion concluding that I-200 "does not prohibit the Seattle School District's open choice plan tie breaker based upon race so long as it remains neutral on race and ethnicity and does not promote a less qualified minority applicant over a more qualified applicant." Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 149 Wash.2d 660, 72 P.3d 151, 166 (2003). It therefore "return[ed] the case to the federal court for further proceedings consistent with [its] resolution of the questions of Washington law," id. at 167, and formally notified this court of its actions by delivery of a Certificate of Finality on September 8, 2003.
All state law issues having been definitively decided, the parties prepared supplemental briefing on the remaining federal 958*958 constitutional question in light of the Supreme Court's intervening decisions in the University of Michigan affirmative actions cases —

Gratz v. Bollinger, 539 U.S. 244, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003), and Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003) — followed by reargument.
II
As a preliminary matter, we must address whether the passage of time has mooted Parents's action. Article III's case-or-controversy requirement mandates that the parties to a federal court action must "continue to have a personal stake in the outcome of the lawsuit" at all stages of the proceedings. United States v. Verdin, 243 F.3d 1174, 1177 (9th Cir.2001) (internal quotation marks and citation omitted). "This means that, throughout the litigation, the plaintiff must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision." Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (quoting Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477-478, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990)). As with any jurisdictional inquiry — and notwithstanding the parties' unhesitating agreement that Parents's action remains a live controversy appropriately subject to federal adjudication on the merits — we are charged with an independent constitutional responsibility to verify our authority to resolve their litigation. See Dittman v. California, 191 F.3d 1020, 1025 (9th Cir.1999).
Initially, we have little doubt that the associational aspect of Parents's standing has not been mooted. At reargument, counsel for Parents informed us that several of the association's members have children who, over the course of the next several years, will be applying for admission to the School District's public high schools and who thus will be subject to the admissions policies established by the School Board. Because "some members of the [association] [c]ould [continue to] have ... standing to bring this suit in their own right," Int'l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Brock, 477 U.S. 274, 286, 106 S.Ct. 2523, 91 L.Ed.2d 228 (1986), and because the passage of time has not called into question Parents's satisfaction of the other requirements for associational standing, see Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000), we are satisfied that the associational aspect of Parents's standing has continued vitality.
Perhaps more troubling, however, is the disclosure that the School District is not currently employing — and has not since the 2001-02 school year employed — the racial tiebreaker that Parents challenge in this litigation. As noted earlier, we enjoined the School District's use of the racial tiebreaker with our initial disposition of this case. See Parents Involved II, 285 F.3d at 1257. And although we vacated that injunction with the withdrawal of our initial opinion, see Parents Involved III, 294 F.3d at 1086, the School District has voluntarily declined to reinstate its racial tiebreaker during the pendency of this litigation. With the passage of time, the voters of Seattle have elected a new School Board,[12] and there is at least a remote possibility that the new Board will opt not 959*959 to resume its use of the racial tiebreaker that prompted this lawsuit.
Nonetheless, it is beyond cavil that "`a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice' unless it is `absolutely clear that the allegedly wrongful behavior could not

reasonably be expected to recur.'" Buckhannon Bd. & Care Home v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 609, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (emphases added) (quoting Friends of the Earth, 528 U.S. at 189, 120 S.Ct. 693, with internal quotation marks and citations omitted). Indeed, in these circumstances, a "heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness." Adarand Const., Inc. v. Slater, 528 U.S. 216, 222, 120 S.Ct. 722, 145 L.Ed.2d 650 (2000) (emphasis in original) (internal quotation marks and citations omitted). The problem here, of course, is that neither party has asserted that this case is moot: When asked at oral argument about the possibility that we lack jurisdiction over Parents's action, counsel for the School District not only maintained that this controversy remains live, but questioned whether the Board would have him defend the racial tiebreaker if it did not intend to reinstate the challenged policy in the future.[13]
Indeed, where a court must address sua sponte the possibility that the passage of time has mooted litigation on alternative grounds (for instance, that the associational aspect of a plaintiff's standing no longer satisfies Article III jurisdictional requirements), we find it hard to imagine that a defendant's voluntary cessation could ever operate itself to moot the underlying litigation. By virtue of the fact that neither party will have alleged mootness in the first instance, there is no one to "satisfy the heavy burden of persuasion" that wellestablished doctrinal precepts require a party to demonstrate before voluntary cessation can be held to moot a once live case or controversy. See United States v. Concentrated Phosphate Export Ass'n, 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968). We therefore conclude that the present case remains live.
III
We now turn to the heart of Parents's claim: that the School District's use of race to determine who will be admitted to its oversubscribed public high schools constitutes illegal racial discrimination in violation of both the Fourteenth Amendment and Title VI.[14]
960*960 A
Forged in the crucible of Reconstruction and "[p]urchased at the price of immeasurable human suffering," Adarand Const., Inc. v. Pena, 515 U.S. 200, 240, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (Thomas, J., concurring), the Equal Protection Clause of the Fourteenth Amendment mandates that "No state shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. "Because the Fourteenth Amendment `protects persons, not groups,' all governmental action based on race — a group classification long recognized as in most circumstances irrelevant and therefore prohibited — should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed." Grutter, 539 U.S. at 326, 123 S.Ct. 2325 (quoting Adarand, 515 U.S. at 227, 115 S.Ct. 2097 (1995) (quoting Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943))) (emphasis in original); see also Ho v. S.F. Unified Sch. Dist., 147 F.3d 854, 865 (9th Cir.1998) ("It is as a person that each of us has these rights that are so majestically secured."). Therefore, "any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment

under the strictest of judicial scrutiny." Adarand, 515 U.S. at 224, 115 S.Ct. 2097; see also Coalition for Econ. Equity v. Wilson, 122 F.3d 692, 702 ("The standard of review under the Equal Protection Clause does not depend on the race or gender of those burdened or benefited by a particular classification.... `[A]ny individual suffers an injury when he or she is disadvantaged by the government because of his or her race.'") (quoting Adarand, 515 U.S. at 230, 115 S.Ct. 2097).
For race-based educational policies "[t]o withstand strict scrutiny analysis, respondents must demonstrate that the[ir] use of race in [their] current admission program employs `narrowly tailored measures that further compelling governmental interests.'" Gratz, 539 U.S. at 270, 123 S.Ct. 2411 (quoting Adarand, 515 U.S. at 227, 115 S.Ct. 2097); see also Hunter v. Regents of Univ. of Calif., 190 F.3d 1061, 1063 (9th Cir.1999) ("To meet the strict scrutiny test, the Regents must demonstrate that ... consideration of race/ethnicity is narrowly tailored to serve a compelling governmental interest.") (first emphasis added); Ho, 147 F.3d at 865 ("Once the plaintiffs established the School District's use of racial classifications... the School District has the duty to justify them.... At trial, the School District will bear the burden of proving that [its use of race] is a `narrowly tailored measure that furthers compelling government interests.'") (quoting Adarand, 515 U.S. at 227, 115 S.Ct. 2097) (emphasis added); Monterey Mech. Co. v. Wilson, 125 F.3d 702, 713 (9th Cir.1997) ("The burden of justifying different treatment by ethnicity or sex is always on the government."). Notwithstanding its remarkable assertions to the contrary, it is thus quite plainly the School District which bears the weighty burden of demonstrating that its use of the racial tiebreaker in its open choice admissions program satisfies the "most searching examination" demanded by strict scrutiny, Gratz, 539 U.S. at 270, 123 S.Ct. 2411 (quotations and citations omitted): that is, that the racial tiebreaker is designed to further a compelling 961*961 governmental interest, and that the manner in which it does so is narrowly tailored to achieve that interest.
B
In papers prepared for purposes of this litigation, the School District has proffered an array of interrelated and putatively compelling interests in pursuit of which it seeks to employ the racial tiebreaker in its open choice high school admissions program. These myriad interests include the School District's desires to achieve: "the educational benefits of attending a racially and ethnically diverse school"; "integration of schools which, as a result of housing patterns and the tendency of many parents to choose schools close to home, would otherwise tend to become racially isolated"; "ensuring that public institutions are open and available to all segments of American society"; "alleviating de facto segregation"; "increasing racial and cultural understanding"; "avoiding racial isolation"; fostering "crossracial friendships"; and "reduc[ing] prejudice and increas[ing] understanding of cultural differences." Perhaps its most articulate statement supporting use of the racial tiebreaker is the School Board's policy "Statement Reaffirming [the] Diversity Rationale." It explains:
Diversity in the classroom increases the likelihood that students will discuss racial or ethnic issues and be more likely to socialize with people of different races. Diversity is thus a valuable resource for teaching students to become citizens in a multi-racial/multi-ethnic world.

Providing students the opportunity to attend schools with diverse student enrollment also has inherent educational value from the standpoint of education's role in a democratic society.... Diversity brings different viewpoints and experiences to classroom discussions and thereby enhances the educational process. It also fosters racial and cultural understanding, which is particularly important in a racially and culturally diverse society such as ours.
Based on the foregoing rationale, the Seattle School District's commitment is that no student should be required to attend a racially concentrated school. The District is also committed to providing students with the opportunity to voluntarily choose to attend a school to promote integration. The District provides these opportunities for students to attend a racially and ethnically diverse school, and to assist in the voluntary integration of a school, because it believes that providing a diverse learning environment is educationally beneficial for all students.
To the extent Parents once may have been able to make out a colorable claim that the only interest sufficiently compelling to justify the use of racial classifications is the remediation of past official discrimination,[15] such an argument no longer obtains. 962*962 In Smith v. University of Washington, this court followed Justice Powell's solo concurrence in Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), observing that "educational diversity is a compelling governmental interest that meets the demands of strict scrutiny of race-conscious measures." 233 F.3d 1188, 1201 (9th Cir.2000). And in its landmark 2003 opinion in Grutter, the Supreme Court settled any debate over the validity of employing racial preferences for non-remedial purposes by asserting that it had "never held that the only governmental use of race that can survive strict scrutiny is remedying past discrimination." Grutter, 539 U.S. at 328, 123 S.Ct. 2325 (O'Connor, J.).[16] Indeed, it expressly sanctioned the so-called "diversity rationale" articulated by the University of Michigan in support of employing such preferences in determining which applicants would be offered admission to its selective law school. See id. 328-33, 123 S.Ct. 2325. It is upon Justice O'Connor's elaboration of the diversity rationale that we now focus our attention.
1
In part due to a recognition that the diversity rationale had often been criticized as "amorphous," "abstract," "malleable," and "ill-defined," see, e.g., Metro Broad., 497 U.S. at 612, 110 S.Ct. 2997 (O'Connor, J., dissenting); Wessmann v. Gittens, 160 F.3d 790, 796 (1st Cir.1998); 963*963 Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 354 (D.C.Cir.1998); Johnson v. Bd. of Regents, 106 F.Supp.2d 1362, 1371 (S.D.Ga.2000); Tracy v. Bd. of Regents, 59 F.Supp.2d 1314, 1321 (S.D.Ga.1999); cf. Grutter, 539 U.S. at 350 & 354 n. 3, 123 S.Ct. 2325 (Thomas, J., dissenting) (deriding the interest in "diversity" as "a faddish slogan of the cognoscenti" and describing the concept as being "more a fashionable phrase than it is a useful term"), the University of Michigan and its aligned amici mounted a concerted effort to bring much-needed clarity. In a remarkable series of briefs, these groups assembled both social scientific evidence and observational reports from business, industry, and military leaders regarding the "substantial" educational and societal benefits that flow from an educational institution's "enroll[ment of] a critical mass of minority students." Grutter, 539 U.S. at 330, 123 S.Ct. 2325 (citation and quotation omitted).

Among the benefits attributed by the University and its amici to the enrollment of a minimal core of minority students, and embraced by the Court under the broad rubric of the diversity rationale, are the promotion of "cross-racial understanding," the "break[ing] down of racial stereotypes," and the fact that "classroom discussion is livelier, more spirited, and simply more enlightening and interesting when the students have the greatest possible variety of backgrounds." Id. at 330, 123 S.Ct. 2325 (citations and quotations omitted). Justice O'Connor's opinion for the Court also explained that "student body diversity promotes better learning outcomes, and better prepares students for an increasingly diverse workforce and society," and noted "that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints." Id.; see also Brief for Respondents at 11, Gratz v. Bollinger, 539 U.S. 244, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003) (No. 02-516) ("Racial and ethnic diversity is educationally important because, notwithstanding decades of progress, there remain significant differences in our lives and perceptions that are undeniably linked to the realities of race. Continuing patterns of residential segregation, for example, mean that the daily events and experiences that make up most Americans' lives take place in strikingly homogenous settings. As a result, most students entering college have had few opportunities for meaningful interactions across lines of race and ethnicity. This separation ... provides little opportunity to disrupt racial stereotypes....").
Finally, the majority emphasized testimony that, in the absence of race-conscious admissions, "underrepresented minority students would have comprised 4 percent of the [school's] entering class in 2000, instead of the actual figure of 14.5 percent," id. at 320, 123 S.Ct. 2325, and that a principal aim of the program was to prevent racial isolation. Id. at 318 & 319, 123 S.Ct. 2325; see also id. at 380-81, 123 S.Ct. 2325 (Rehnquist, C.J., dissenting) (noting that the university's focus on achieving a "critical mass" of minority students was premised on "enroll[ing] enough minority students to provide meaningful integration of its classrooms and residence halls" and reducing the effects of "isolat[ion] by racial barriers") (quoting Brief for Respondents at 5).
2
Recognizing that each of the School District's proffered interests in using its racial tiebreaker falls comfortably within the diversity rationale as that justification's aims and benefits were articulated to (and embraced by) the Court, see supra at 960-61, Parents and their amici seek to cabin Grutter's reach by contending that the 964*964 Court's compelling interest analysis was expressly limited to the use of race in admissions in the context of "the expansive freedoms of speech and thought associated with the university environment." Grutter, 539 U.S. at 330. We of course acknowledge that Grutter addressed the use of racial classifications in higher education, and that language in the Court's opinion reflects that factual underpinning.[17] But we cannot identify a principled basis for concluding that the benefits the Court attributed to the existence of educational diversity in universities cannot similarly attach in high schools. We simply do not see how the government's interest in providing for diverse interactions among 18 year-old high school seniors is substantially less compelling than ensuring such interactions among 18 year-old college freshmen. Cf. Grutter, 539 U.S. at 347, 123 S.Ct. 2325 (Scalia, J., dissenting) ("The `educational benefit' that the University ... seeks to achieve by racial discrimination consists, according to the Court, of `cross-racial understanding,' and `better preparation of students for an increasingly

diverse workforce and society,' all of which is necessary not only for work, but also for good `citizenship.' This is not, of course, an `educational benefit' [but] the same lesson taught to ... people three feet shorter and twenty years younger... in institutions ranging from Boy Scout troops to public-school kindergartens.") (quoting Grutter, 539 U.S. at 331, 123 S.Ct. 2325) (citations and alterations omitted).
3
At bottom, Grutter plainly accepts that constitutionally compelling internal educational and external societal benefits flow from the presence of racial and ethnic diversity in educational institutions. In support of its racial tiebreaker, the School District invokes precisely the interest sanctioned by the Supreme Court: securing those benefits. Those benefits are as compelling in the high school context as they are in higher education. We therefore conclude that the District has satisfied its first burden under strict scrutiny: It has articulated a compelling interest in pursuit of which it seeks to use a racial classification.[18]
C
Of course, to hold that the School District has invoked a compelling interest in pursuit of which it seeks to employ the racial tiebreaker is merely to begin our inquiry. Because" `racial classifications are simply too pernicious to permit 965*965 any but the most exact connection between justification and classification,'" Gratz, 539 U.S. at 270, 123 S.Ct. 2411 (quoting Fullilove, 448 U.S. at 537, 100 S.Ct. 2758 (Stevens, J., dissenting)), the School District also bears the burden of demonstrating that its use of the racial tiebreaker is narrowly-tailored to further that interest. See Hunter, 190 F.3d at 1063; Ho, 147 F.3d at 865. As with respect to compelling interest analysis, Grutter and Gratz shed much-needed light on the once crepuscular contours of the narrow tailoring test applicable to the non-remedial use of racial preferences in educational admissions. Careful attention to these decisions — and the ways they addressed the divergent undergraduate and law school admissions schemes at the University of Michigan — is especially warranted.
1
As Grutter outlined, the admissions process at the University of Michigan Law School functions roughly as follows. Every completed application received by the Law School is both read and considered holistically by admissions officials. A significant focus of the decisionmakers is on an applicant's academic ability, as measured by his or her undergraduate grade point average and score on the Law School Admissions Test (LSAT). Even so, these "hard" measures are insufficient to resolve admissions decisions: Just as "the highest score does not guarantee admission[, neither] does a low score disqualify an applicant." Grutter, 539 U.S. at 315, 123 S.Ct. 2325. Instead, admissions officials must look beyond those measures to "soft" variables, including "the enthusiasm of the [applicant's] recommenders, the quality of the undergraduate institution, the quality of the applicant's essay, and the areas and difficulty of undergraduate course selection," which in turn are used to help measure "an applicant's likely contributions to the intellectual and social life of the institution." Id. (internal quotations omitted).

This focus on "soft" variables aims to ensure that the Law School can "`achieve that diversity which has the potential to enrich everyone's education and thus make a law school class stronger than the sum of its parts.'" Id. (quoting the Law School's written admissions policy). While recognizing that there are "`many possible bases for diversity admissions,'" the admissions policy
"reaffirm[s] the Law School's longstanding commitment to `one particular type of diversity,' that is, `racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against..., who without this commitment might not be represented in our student body in meaningful numbers.' "
Id. at 316, 123 S.Ct. 2325 (quoting policy). Of note, the policy seeks to ensure the enrollment of a "critical mass" of underrepresented minority students through the use of a calibrated racial preference — in the absence of which such students would comprise just 4 percent of the law school's entering class, and thereby be less likely as a group fully to "`make unique contributions to the character of the Law School.'" Id. (quoting policy). Crucially, "[t]he policy does not define diversity `solely in terms of racial and ethnic status,'" id. (quoting policy), but rather gives "serious consideration to all the ways an applicant might contribute to a diverse educational environment." Id. at 337, 123 S.Ct. 2325.
Turning to the constitutionality of the program, Justice O'Connor immediately honed in on its core features: its flexibility and breadth. In concert with the baseline constitutional prohibition against quotas, id. at 334, 123 S.Ct. 2325 ("[A] race-conscious 966*966 admissions program cannot use a quota system — it cannot `insulate each category of applicants with certain desired qualifications from competition with all other applicants.'") (quoting Bakke, 438 U.S. at 315, 98 S.Ct. 2733 (Powell, J., concurring)), the law school "consider[s] race [and] ethnicity more flexibly as a `plus' factor in the context of individualized consideration of each and every applicant." Id. Moreover, she explained, the Law School's policy strenuously avoids evaluating individual applicants "in a way that makes [their] race or ethnicity the defining feature of [their] application." Id. at 337, 123 S.Ct. 2325. Conforming to the "paramount" constitutional requirement of truly "individualized consideration in the context of a race-conscious admissions program," id. at 337, 123 S.Ct. 2325, the Law School's admissions officers shun a "policy, either de jure or de facto, of automatic acceptance or rejection based on any `soft' variable," and awards "no mechanical, predetermined diversity `bonuses' based on race or ethnicity." Id.
Quite in contrast, the school refuses to "limit in any way the broad range of qualities and experiences that may be considered valuable contributions to student body diversity," id. at 338, 123 S.Ct. 2325, and illustrates the strength of its commitment to that principle by highlighting a variety of non-racial criteria the institution considers valuable — for instance, that an applicant has lived or traveled abroad, speaks more than one language, has overcome personal adversity, or has a strong record of community service or even a prior career in a non-legal profession. Id. (discussing policy). And the Law School pays more than mere lip service to this commitment: It "actually gives substantial weight to diversity factors besides race," allowing those factors to "make a real and dispositive difference for nonminority applicants as well." Id. In short, the law school's admissions program "considers race as one factor among many, in an effort to assemble a student body that is

diverse in ways broader than race," id. at 340, 123 S.Ct. 2325, and as a consequence, "does not unduly harm nonminority applicants." Id. at 341, 123 S.Ct. 2325.
Finally, the Court observed that the Law School has "sufficiently considered workable raceneutral alternatives," id. at 340, 123 S.Ct. 2325, and that periodic reviews (along with an eventual legal cutoff) ensure that the Law School's use of race will be time-limited, in concert with the Constitution's demand that any "`deviation from the norm of equal treatment of all racial groups [be] a temporary matter, a measure taken in the service of the goal of equality itself.'" Id. at 342, 123 S.Ct. 2325 (quoting Croson, 488 U.S. at 510, 109 S.Ct. 706 (plurality opinion)). In light of the policy's careful design and its adherence to the strict limits placed on the non-remedial use of race, the Court upheld the Law School's program as narrowly tailored.
2
At issue in Gratz, however, the undergraduate admissions program at the University's College of Literature, Sciences, and the Arts (LSA) — though purportedly pursuing the same benefits from diversity as the Law School — had structured its admissions program around such a crude racial classification that the school had not even come close to satisfying the narrow tailoring requirement.[19] Prior to its 1998 967*967 admissions cycle, LSA developed an admissions "selection index" that assigned each applicant a score of up to 150 points based on his or her grades, test scores, high school quality and curricular rigor, in-state residency, legacy status, personal essay, and personal achievement or leadership. The index was then divided into strict dispositional bands: students scoring 100150 points were admitted; students scoring 95-99 points were either admitted or had consideration of their application postponed; students scoring 90-94 points either had consideration of their application postponed or were admitted; students scoring 75-89 points were delayed or postponed; and students scoring fewer than 75 points were delayed or rejected. Gratz, 539 U.S. at 255, 123 S.Ct. 2411.
Although the LSA system superficially appeared to provide for individualized consideration of each applicant — at least to the extent that each application was reviewed to ascertain the presence of various "soft" variables for mechanical scoring — such a rosy portrait was belied by the underlying reality of the policy. Tucked into a "`miscellaneous' category, an applicant was entitled to 20 points based upon his or her membership in an underrepresented racial or ethnic minority group." Id. Indeed, during 1999 and 2000, "every applicant from an underrepresented racial or ethnic group was awarded 20 points," id. at 256, 123 S.Ct. 2411, at least one-fifth of the points necessary to secure admission to LSA.[20]
It therefore is not surprising that the Court rejected LSA's program on narrow tailoring grounds. Put simply, the program provided no serious individualized consideration of the applicant's potential contributions to educational diversity.
The LSA's policy automatically distributes 20 points to every single applicant from an `underrepresented minority' group, as defined by the University. The only consideration that accompanies this distribution of points is a factual review of an application to determine whether an individual is a member of one of these minority groups. Moreover, unlike Justice

Powell's example, where the race of a `particular black applicant' could be considered without being decisive, the LSA's automatic distribution of 20 points has the effect of making `the factor of race ... decisive' for virtually every minimally qualified underrepresented minority applicant.
Id. at 272, 123 S.Ct. 2411 (quoting Bakke, 438 U.S. at 317, 98 S.Ct. 2733 (Powell, J., concurring)); see also id. at 273, 98 S.Ct. 2733 ("[A]s the University has conceded, the effect of automatically awarding 20 points is that virtually every qualified underrepresented minority applicant is admitted."). Having so easily concluded that the LSA policy was not narrowly tailored, the Court concluded by swiftly rejecting 968*968 the University's lame suggestion that "`the volume of applications and the presentation of applicant information make it impractical'" to predicate admissions on individualized consideration. Id. at 275, 98 S.Ct. 2733 (quoting LSA's Brief). "[T]he fact that the implementation of a program capable of providing individualized consideration might present administrative challenges does not render constitutional an otherwise problematic system." Id. (citing Croson, 488 U.S. at 508, 109 S.Ct. 706).[21]
3
From the Court's decisions in Grutter and Gratz — and drawing upon well-established narrow tailoring principles — we derive the following governing constraints. First, where an institution pursues non-remedial objectives, racial quotas are strictly prohibited. Gratz, 539 U.S. at 293, 123 S.Ct. 2411 (Souter & Ginsburg, JJ., dissenting) ("Justice Powell's opinion in [Bakke] rules out a racial quota or set-aside, in which race is the sole fact of eligibility for certain places in a class."); Grutter, 539 U.S. at 334, 123 S.Ct. 2325.
Second, any consideration of race for non-remedial purposes must be flexible; an educational institution may not treat an applicant's race or ethnicity as the touchstone of his or her individual identity, but instead must meaningfully evaluate each applicant's potential diversity contributions in light of all pertinent factors. Gratz, 539 U.S. at 271-74, 123 S.Ct. 2411; id. at 279, 123 S.Ct. 2411 (O'Connor, J., concurring); Grutter, 539 U.S. at 337-39, 123 S.Ct. 2325; Bakke, 438 U.S. at 315 & 317-18, 98 S.Ct. 2733; Belk v. CharlotteMecklenburg Bd. of Educ., 269 F.3d 305, 345 (4th Cir.2001) (Traxler, J., concurring); Wessmann, 160 F.3d at 798 & 800; Eisenberg v. Montgomery Cty. Pub. Schs., 197 F.3d 123, 132-33 (4th Cir.1999); Tuttle v. Arlington Cty. Sch. Bd., 195 F.3d 698, 707 (4th Cir.1999).
Third, it follows that an institution's use of race must be neither mechanical nor conclusive. Gratz, 539 U.S. at 271-72, 123 S.Ct. 2411; id. at 278-79, 123 S.Ct. 2411 (O'Connor, J., concurring); Grutter, 539 U.S. at 336-37, 123 S.Ct. 2325. After all, automatically awarding a fixed racial preference to every single racially-preferred applicant signals an institutional disregard for the far broader array of diversity characteristics that produce the educational and social benefits deemed compelling by the Court. Bakke, 438 U.S. at 317, 98 S.Ct. 2733 (Powell, J., concurring). And any racial preference that necessarily results in the admission of an applicant demonstrates the pursuit of prohibited racial balancing 969*969 simpliciter. See, e.g., Grutter, 539 U.S. at 337, 123 S.Ct. 2325 ("There is no policy, either de jure or de facto, of automatic acceptance...."); Wessmann, 160 F.3d at 799; cf. Eisenberg, 197 F.3d at 131; Tuttle, 195 F.3d at 707.

Fourth, narrow tailoring demands that the institution seeking to employ racial preferences at the very least demonstrate an earnest consideration of race-neutral alternatives. Grutter, 539 U.S. at 339-40, 123 S.Ct. 2325; Wygant, 476 U.S. at 280 n. 6, 106 S.Ct. 1842; Tuttle, 195 F.3d at 706; Podberesky, 38 F.3d at 160-61.
Fifth, serious efforts must be made to minimize the adverse impact of racial preferences on non-preferred group members; a programmatic use of race should be no more potent than necessary to achieve the compelling interest being pursued. Grutter, 539 U.S. at 341, 123 S.Ct. 2325; Wygant, 476 U.S. at 287, 106 S.Ct. 1842 (O'Connor, J., concurring in part and dissenting in part); Bakke, 438 U.S. at 308, 311, 314-15, 98 S.Ct. 2733 (Powell, J., concurring); Wessmann, 160 F.3d at 798.
Sixth, and finally, any program of racial preferences, regardless of its ultimate aspirations, must be time-limited. Grutter, 539 U.S. at 342, 123 S.Ct. 2325; Croson, 488 U.S. at 510, 109 S.Ct. 706 (plurality opinion by O'Connor, J.); Hayes v. N. State Law Enforcement Ass'n, 10 F.3d 207, 216 (4th Cir.1993).
4
The School District's racial tiebreaker fails virtually every one of the narrow tailoring requirements.
a
First (and second), in contrast to the "flexible, nonmechanical," evaluation of race employed by the University of Michigan Law School in the course of a "highly individualized, holistic review" which scrupulously "ensure [s] that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application," Grutter, 539 U.S. at 337, 123 S.Ct. 2325, the School District's racial tiebreaker is virtually indistinguishable from a pure racial quota. As Grutter defined that forbidden fruit of non-remedial racial preferences, "Quotas impose a fixed number or percentage which must be attained, or which cannot be exceeded, and insulate the individual from comparison with all other candidates for the available seats." Grutter, 539 U.S. at 335, 123 S.Ct. 2325 (citations and quotations omitted). Yet this is almost precisely how the District itself has described the operation of its program — with a single variance: rather than impose a racial floor or ceiling, the School District's racial tiebreaker establishes both a floor and a ceiling.
[I]f an oversubscribed school has fewer than 45 [percent] students of color/more than 55 [percent] whites, students of color will be assigned ahead of white students who live closer to the school. Conversely, if an oversubscribed school has fewer than 25 [percent] white students/more than 75 [percent] students of color, white students will be assigned ahead of students of color who live closer.
b

Indeed, to an even greater degree than the University of Michigan's undergraduate admissions program, the School District — third — automatically and mechanically admits, using a computer algorithm designed to implement the ceilings and floors framing its racial tiebreaker, hundreds of white and non-white applicants solely because of their race. Cf. Gratz, 539 U.S. at 270, 123 S.Ct. 2411 ("[T]he University's 970*970 policy, which automatically distributes ... one-fifth of the points needed to guarantee admission ... to every single `underrepresented minority' applicant solely because of race, is not narrowly tailored....") (emphasis added); id. at 271-72, 123 S.Ct. 2411 ("The only consideration that accompanies this distribution of points is a factual review of an application to determine whether an individual is a member of one of these minority groups."). Thus, in stark contrast to the program sanctioned by Grutter, the racial tiebreaker not only fails to "serious[ly] consider[ ] all the ways an applicant might contribute to a diverse educational environment," but is in fact a "de jure [policy] of automatic acceptance or rejection based on a[ ] single `soft' variable." Grutter, 539 U.S. at 337, 123 S.Ct. 2325. This the Constitution categorically forbids; such an impliably reflexive use of race "cannot be said to be narrowly tailored to any goal, except perhaps outright racial balancing." Croson, 488 U.S. at 507, 109 S.Ct. 706 (plurality opinion).[22]
c
Fourth, although numerous alternative admissions structures have been proposed to solve the School District's oversubscription dilemma without so prominently featuring race in the equation, not all have been (or ever were) seriously considered by the Board.[23] Three such alternatives stand out.
i
First, the School Board has never seriously considered the use of a citywide high school admissions lottery. Though perhaps not palatable to the electorate — a consideration that cannot justify the use of race in its stead — a randomized lottery would necessarily produce levels of school diversity statistically comparable to (and perhaps even more proportional than) the District's racial tiebreaker. Yet, when asked about using a lottery to meet the District's diversity targets, Board member Barbara Schaad-Lamphere actually argued that a lottery would not result in racially proportional representation "because of probabilities, the law of probabilities." Let us be clear: We are not forcing the School District to adopt a random assignment lottery. But given its evident commitment to achieving diversity, there is 971*971 no question but that the Board should have earnestly appraised such a program's costs and benefits. Whatever reasons there may be to reject a lottery, the demonstrably false pretext that "the law of probabilities" would render it ineffectual is not one.
The dissent takes us to task for suggesting that the School District must seriously consider using a lottery to achieve its diversity goals when Grutter itself explicitly rejected the plaintiffs' claim that Michigan's Law School should have considered a lottery. See post at 1009-1010. We find such criticism unavailing. Grutter rejected the plaintiffs' demand that the Law School consider a lottery because such a program would necessarily diminish the quality of its admitted students and might not produce adequate educational diversity due to potential under-representation of various (not necessarily racial) kinds of diversity in its

limited applicant pool.[24] Yet as the dissent itself notes, the School District's adoption of a lottery is subject to neither of these potential pitfalls. Post at 1000 (noting that in this case "there is absolutely no competition or consideration of merit.... All high school students must and will be placed in a Seattle public school. The students' relative merit is irrelevant.") (emphasis in original). As a result, the District's unconstrained applicant pool is not subject to a possible demographic skew, and there is absolutely no possibility that a lottery would diminish the quality of admitted students. Thus, neither of Grutter's grounds for rejecting consideration of a lottery is present here.
ii
Second, the School District could have considered adopting a diversity-oriented policy that does not rely exclusively on race, but which instead accounts for the wider array of characteristics that comprise the kind of true diversity lauded by Justice Powell in Bakke and by the Court in Grutter and Gratz. In this respect, we observe that — for purposes of its internal school funding formula — the School District already collects a much wider array of data on students and families than merely their racial and ethnic identities. Among that data is information on whether a child lives at home or in "an agency"; if she lives at home, with whom; whether the child's home and most proficient languages are English or some other language; and the child's eligibility for free or reduced price lunch. Yet, the District considers none of those factors in admissions, and although individual Board members have occasionally suggested using one or more of those factors as an alternative tiebreaker, the Board has declined even to study how such an alternative would impact school diversity.[25]
The dissent once again strays in its criticism of this suggestion. It first suggests that a programmatic focus on "true diversity" is no alternative at all "because it is 972*972 not directed toward achieving the District's interest in a racially integrated learning environment." Post at 1008. But this claim is fundamentally mistaken. A programmatic focus on true diversity — within which race is one of many factors considered by the School District — subsumes the District's interest in achieving racial diversity: It does not supplant it. Indeed, such a focus may not only help the District achieve the racial diversity it desires, see infra at 1001 n. 26, but might actually serve the District's socialization interests to a far greater degree than its presently narrow focus on race alone. For, if the District's fundamental interest is, as the dissent characterizes it, "to prepare children to be good citizens — to socialize children and to inculcate civic values," see post at 992, and to achieve "a more democratic and inclusive experience for all citizens," id. at 991-92 n. 9 (quoting one of the District's expert witnesses), then accounting for factors other than race — like socioeconomic status — would bolster the District's "democratic" mission by fostering, for instance, cross-class (and not just cross-racial) interaction. See Richard D. Kahlenberg, All Together Now: Creating Middle-Class Schools Through Public School Choice (2001) (documenting the civic and educational benefits of socioeconomically integrated schooling).
The dissent also errs in suggesting that "even though there has been no formal study of [this] proposal," the deposition testimony of a few Board members is sufficient to demonstrate "legitimate reasons why the majority of the Board rejected the use of poverty measures...." Post at 1008. We disagree. The Board members' blithe dismissal of a sincerely presented proposal simply cannot satisfy the constitutional requirement that the

government earnestly appraise race-minimal alternatives prior to adopting race-conscious policies. Matters not formally evaluated cannot be "rejected" in a constitutionally-relevant sense: Such appraisal — whether with regard to the need for race-based action, or to the shape such action is to take — must be conducted "on the record." See, e.g., Croson, 488 U.S. at 498-511, 109 S.Ct. 706 (chronicling Richmond's failure adequately to document the basis for its use and design of a racial quota and stressing the constitutional demand that it do so); see also Shaw v. Hunt, 517 U.S. 899, 909-10, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996); Fullilove, 448 U.S. at 533-35, 100 S.Ct. 2758 (Stevens, J., dissenting); Rothe Dev. Corp. v. United States Dep't of Def., 262 F.3d 1306, 1322-28 (Fed.Cir.2001); Associated Gen. Contractors of Ohio, Inc. v. Drabik, 214 F.3d 730, 735-37 (6th Cir.2000) (Boggs, J.); WH Scott Constr. Co. v. City of Jackson, 199 F.3d 206, 217-19 (5th Cir.1999) (King, C.J.); H.K. Porter Co. v. Metro. Dade County, 975 F.2d 762 (11th Cir.1992).[26]
973*973 iii
Third (and at least for the moment, finally), acting in response to Parents's filing of this lawsuit, the Seattle Urban League convened a working group which included, among others, a representative from the NAACP, one of the Parents, a former member of the School Board, a retired high school principal, the then-current President of the Seattle Council Parent Teacher Student Association (PTSA), and a former PTSA President. In September 2000, they developed — and then formally proposed to the School Board — a comprehensive plan that would seek to enhance the quality of education in the City's schools by focusing on educational organization, teacher quality, parent-teacher interaction, raising curricular standards, substantially broadening the availability of specialized and magnet programs (which could attract a broader cross-section of students to undersubscribed schools), and supporting extra-curricular development.[27]
At the same time, their plan proposed decreasing the School District's reliance on race in the admissions process by adding a new, primary tiebreaker based on pairing neighborhoods with particular schools and structuring the scope and size of the component residential areas such that no single region would contain enough students to fill its linked high school to capacity. Under the plan, preferences initially would be given to students choosing a school in their paired region, and the existing racial tiebreaker would be dropped from second to third in the process of resolving any remaining oversubscription (and any residual racial concentration not already solved by improving the attractiveness of previously racially concentrated schools). Finally, the Urban League working group proposed that the School District add an eleventh public high school, and that it strenuously market to the public the existing (and proposed additional) specialty programs throughout the City's other high schools.[28]
We cannot know whether its proposed reforms would have been successful in achieving the working group's ambitious goals, but there is no doubt that the Urban League presented the Board with an especially thoughtful proposal for addressing the dilemmas plaguing contemporary urban education[29] while simultaneously striving 974*974 to attain educational diversity without unduly relying on the use of crude racial preferences. Yet, this proposal was never formally discussed at a Board meeting. Indeed, some members of the Board even refused to read it. Consider the following remarkable deposition testimony by Board member Michael Preston:

Q: Are you familiar with the plan proposed by the ad hoc work group of the Urban League?
A: Somewhat.
Q: Did you ever consider that plan as a viable alternative to the current assignment plan?
A: No.
Q: Why not?
A: I thought they hadn't done their homework. And yeah, they seemed too liberal and unbusinesslike. But it didn't recognize the legitimate concerns that the people of Ballard and Magnolia have about the school.
Q: What in particular do you believe are the shortcomings of that Urban League plan that caused you not to consider it to be a viable alternative?
A: That it came from the Urban League. Even though [Urban League President and CEO] James Kelly is a good friend of mine, the Urban League has not been a bastion of enlightened thought, in my view, historically.
Q: Did you read the proposal?
A: No. I heard it characterized and summarized.
Q: By whom?
A: By the superintendent. I have a copy of it. I chose not to read it. I'd rather play with my bass lunker fishing game.
Q: Than consider the Urban League's proposal?
A: Well.
Q: That might give some offense to the people who spent a good deal of time working that proposal up.
A: Okay.
Q: We don't need to show them a copy of the deposition transcript.
A: I'm sure it will eventually fall into their hands.
...
* * *
Q: Are you familiar with the broad outlines of how that proposal was structured?
A: Yeah.
Q: What's your understanding of that? Not necessarily the minutia, but what's your understanding of the general way that the Urban League's proposal would have worked?

A: I don't understand the relevance of the Urban League's proposal, because it wasn't considered, it wasn't used. I 975*975 don't understand what difference it makes.
Q: Well, I'm just — in all honesty, one of the issues in the case, as I see it, is what alternatives were available to the school board.
A: Well, that wasn't an alternative.
Q: Why is that?
A: Well, the Urban League is not the school board, it's not the administration, it's not the superintendent....
Without belaboring the point, this is not exactly the stuff from which narrow tailoring is made. While it may be the case that educational institutions need not exhaust every conceivable alternative to the use of racial classifications to satisfy strict scrutiny, narrow tailoring at least demands that schools earnestly consider using race-neutral and racelimited alternatives in order to provide for the kind of diversity that, properly constituted, can further compelling educational and social interests. Grutter, 539 U.S. at 339, 123 S.Ct. 2325. Given the tragic history of race in our country, the Constitution demands no less — our education policymakers' enthusiasm for handheld electronically simulated "bass lunker fishing game[s]" notwithstanding.
d
Fifth, the School District's racial tiebreaker is not designed to minimize its adverse impact on third parties; the extent to which it uses race is not calibrated to the benefits sought. Over time, "the band," see supra n. 6, has ranged from as much as +/25 percent to as little as +/10 percent, and it currently sits at +/15 percent. And while such variances conceivably could be interpreted to suggest that the School District is carefully trying to optimize its realization of diversity's benefits, the record belies such an interpretation. In October 2000, School Superintendent Joseph Olchefske formally recommended that the band be expanded from +/10 percent to +/20 percent because "[a]fter review and 2 years experience, there was not strong evidence that utilizing a +/10 [percent] band provided a materially better educational experience than would a band of +/20 [percent]. Accordingly, in order to fulfill our narrow tailoring obligation, staff is recommending a +/20 [percent] band."[30] Yet, even after its chief educator and his staff twice had reported that twice as much of an adjustment would have no adverse impact on the diversity payoff, the Board adjusted the band by just 5 percentage points. This is not the measure of tailored proportionality. Instead, it represents a stubborn adherence to the use of race for race's sake, with the effect that some non-preferred student applicants will be displaced solely because of their racial and ethnic identities — to no benefit at all.[31]
976*976 Taken alone, any of these shortcomings would doom the School District's program. Together, they reveal an unadulterated pursuit of racial proportionality that cannot possibly be squared with the demands of the Equal Protection Clause.[32]
5

In an effort to evade the clear import of the narrow tailoring analysis applied by Grutter, Gratz, and their progenitors, the School District argues that such analysis simply does not apply in the K-12 context: "[T]he Michigan decisions have meaning only in the context of selective admissions and other `zero sum' programs.... [The] argument that race may be considered [only] in a holistic individualized review as one factor among many contributing to diversity is not applicable to non-selective school assignments."[33] Indeed, they argue, the use of racial classifications in their allegedly "non-zero sum" open choice high school admissions process "is narrowly tailored, as a matter of law."
For support, they unearth language from Associated General Contractors of California v. San Francisco Unified School District, a 1980 case in which we addressed a challenge to a School Board policy requiring that "bidders for construction contracts ... must be minority general contractors or must utilize minority subcontractors for 25[percent] in dollar volume of the contract work." 616 F.2d 1381, 1383 (9th Cir.1980). At the heart of their challenge, the contractors asserted that the quota violated California law requiring that all school contracts (except those involving de minimis expenditures) be awarded solely to "the lowest responsible bidder." Id. at 1385 (discussing and quoting Cal. Educ.Code § 39640). In defense, the School Board asserted not only that its policy was permissible, but that the policy was required in order to remedy 977*977 past discrimination — and therefore that insofar as it would prevent maintenance of such a policy, California's low-bid law violated the Supremacy Clause, U.S. Const. art. VI, § 2. Id. at 1386.
We flatly rejected that argument, drawing a distinction between "reshuffle programs" and "stacked deck programs," id. at 1386, and placing the Board's quota in the latter category of race-based policies. We explained the central difference between these two categories as follows: While reshuffle programs "neither give[ ] to nor withhold[ ] from anyone any benefits because of that person's group status, but rather ensure[] that everyone in every group enjoys the same rights in the same place," so-called stacked deck programs "specifically favor[ ] members of minorities in the competition with members of the majority for benefits that the state can give to some citizens but not to all." Id. In passing, we twice suggested that programs designed to desegregate schools are reshuffle programs, see id. at 1386 & 1387, and elsewhere stated "that `stacked deck' programs trench on Fourteenth Amendment values in ways that `reshuffle' programs do not." Id. at 1387.
Ultimately, we held simply that although "the state has an affirmative constitutional duty to use `reshuffle' programs to cure the effects of past or present de jure segregation..., there is no constitutional duty to engage in `stacked deck' affirmative action." Id. Of particular import, we never reached the Fourteenth Amendment question squarely implicated by this case: whether notwithstanding the absence of an obligation to adopt such a policy, its implementation of such a program was permissible. Instead, given our resolution of an underlying state law question, our assessment of that law's constitutionality, and the fact that the Court recently had granted certiorari in Fullilove, we explicitly declined to "test the policy itself against the standard of the United States Constitution." Id. at 1391.
Although it might seem obvious that a case cannot control the resolution of an issue it expressly declined to confront, the School District nonetheless grasps at Associated General's furtive references to school desegregation.[34] It argues that its racial classification is equivalent to the programs arguably favored by Associated General, and thus (reading

that opinion at the highest level of generality) not violative of the Fourteenth Amendment.[35] We disagree.
Let us begin with two interrelated observations. First, Associated General addressed neither school desegregation nor the use of race in educational admissions; it assessed a mechanical set-aside governing distribution of construction projects. Second, Associated General did not even purport to apply strict scrutiny to a particular racial classification (or, more specifically, an actual school desegregation program). Its Fourteenth Amendment analysis assessed only whether the use of certain types of classifications is required to remediate prior official race discrimination — not whether constitutional limits circumscribe 978*978 the use of such classifications for non-remedial purposes, what those limits might be, and how they might affect the constitutionality of a particular policy.
Two conclusions follow. First, Associated General sheds no light on how we are to apply the narrow tailoring analysis rendered applicable to any racial classification by Croson, 488 U.S. at 493-95, 109 S.Ct. 706, Adarand, 515 U.S. at 224, 115 S.Ct. 2097, Grutter, 539 U.S. at 326, 123 S.Ct. 2325, and Gratz, 539 U.S. at 270, 123 S.Ct. 2411,[36] to the tiebreaker at issue in this case. And second, Associated General's assertions about the nature of school desegregation programs are — however one defines the term — obiter dicta.[37]
Insofar as the School District argues that because reshuffle programs may be less invidious than stacked deck programs and thus, as a constitutional matter, somehow not subject to the stringencies of the narrow tailoring requirement — a proposition never embraced by this court[38] and certainly not one reconcilable with binding 979*979 Supreme Court holdings[39] — it misapprehends the concept of narrow tailoring. The contours of narrow tailoring do not turn on the importance of the interest supporting the government's use of a racial classification (though such analysis, whatever its shape, surely is triggered by use of a racial classification in pursuit of a compelling interest), nor on the asserted degree of the intrusion that a particular use of race might render. The personal right to equal treatment is implicated any time the government employs race for any reason. See Coalition, 122 F.3d at 702 (quoting Adarand, 515 U.S. at 230, 115 S.Ct. 2097).
Instead, narrow tailoring analysis focuses only upon the fit between the ends in pursuit of which a racial classification is used, the particular way in which the policy at issue uses that racial classification, and the baseline legal limits placed upon the use of racial classifications — and it does so because any policy using race, for any reason and in any way, is "inherently suspect," "by [its] very nature odious to a free people," and simply "too pernicious to permit any but the most exact connection between justification and classification." Adarand, 515 U.S. at 223, 115 S.Ct. 2097 (quoting Fullilove, 448 U.S. at 523, 100 S.Ct. 2758 (Stewart, J., dissenting)); id. at 224, 115 S.Ct. 2097 (quoting Hirabayashi, 320 U.S. at 100, 63 S.Ct. 1375); id. 229, 115 S.Ct. 2097 (quoting Fullilove, 448 U.S. at 537, 100 S.Ct. 2758 (Stevens, J., dissenting)). It is for those reasons that, as Judge Selya — in typically perspicuous fashion — has observed, a court applying strict scrutiny must focus on "whether the concrete workings of the Policy merit constitutional sanction. Only by such particularized attention can we ascertain whether the Policy bears any necessary relation to the noble ends it espouses. In short, the devil is in the details." Wessmann, 160 F.3d at 798. Under strict scrutiny, no racial classification, no matter its

context and no matter the nature or strength of the interest it serves, is exempt from the strictures of narrow tailoring, and this program plainly fails to satisfy them.
Finally, even if were we to accept that Associated General bears on this case, we observe that the School District's racial tiebreaker operates as a "stacked deck" program. Quite simply, it "specifically favors members of [some races] in the competition with members of [other races] for benefits that the state can give to some citizens but not to all," Associated General, 616 F.2d at 1386 — here, of course, admission to particular high schools.[40] As noted 980*980 earlier, operation of the tiebreaker at Franklin causes whites to be admitted preferentially because they are white, and its operation at Ballard causes non-whites to be admitted preferentially simply because they are not white. To the argument that this program is "non-selective," we can only express bewilderment: The racial tiebreaker is used to determine student admissions solely to oversubscribed — and thus necessarily selective — schools.[41] Whatever Associated General says about school desegregation programs, this is not the programmatic design that we had in mind.
Having accepted the School District's invocation of Grutter and Gratz in support of the proposition that racial and ethnic diversity can generate constitutionally compelling benefits within the educational setting itself and our society at large, we ultimately are compelled to reject the School District's strained efforts both to eat its cake and have it too. Its racial tiebreaker — though enlisted in the service of admittedly worthy ends — plainly fails the narrow tailoring component of the Constitution's strict scrutiny test.[42]
IV
Approaching this case from a fundamentally divergent perspective, the dissent offers a spirited and thoughtful defense of the School District's racial tiebreaker. Although we have responded to a few of its more specific criticisms, we see little to gain from the kind of noteby-note combat so pervasive in modern judicial opinions. Rather, given the thoroughness with which we have articulated our respective analyses of the racial tiebreaker, we think there is more to gain by elucidating the core foundations of our dispute. We perceive three significant points of departure, and address each in turn. A The dissent repeatedly suggests that we should simply defer to the School District's decision to employ its tiebreaker in pursuing racial proportionality. Post at 993-94 n. 13, 995-96, 996-98 & 1007-1008. Indeed, the dissent gradually shifts from noting how "compelling" the District's policy is to focusing on its "reasonable[ness]," "legitima[cy]," and "permissi [bility]." Id. at 993-94 n. 13, 1005, 1008, 1008, 1009, 1013. We believe such unfettered deference is inconsistent with our obligations under strict scrutiny — and, contrary to the dissent, that it is especially inconsistent with constitutional demands in this context. 981*981 Because Grutter's decision to accord universities a measure of deference occasioned a sharp debate over this issue, careful attention to its rationale for doing so is in order.
1
After identifying the Law School's "compelling interest in attaining a diverse student body," Grutter, 539 U.S. at 328, 123 S.Ct. 2325, the Court promptly stated:

The Law School's educational judgment that such diversity is essential to its educational mission is one to which we defer.... Our scrutiny of the interest asserted by the Law School is no less strict for taking into account complex educational judgments in an area that lies primarily within the expertise of the university. Our holding today is in keeping with our tradition of giving a degree of deference to a university's academic decisions....
Id. at 328-30, 123 S.Ct. 2325 (citations omitted) (emphases added).
In developing its rejection of the dissenting Justices' charge that such deference was indeed at odds with strict scrutiny, see id. at 379-86, 123 S.Ct. 2325 (Rehnquist, J., dissenting); id. at 387-94, 123 S.Ct. 2325 (Kennedy, J., dissenting); id. at 362-67, 123 S.Ct. 2325 (Thomas, J., dissenting), the Court began by reiterating its "long recogni[tion] that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition." Id. at 330, 123 S.Ct. 2325. It then expressly sanctioned Justice Powell's statement in Bakke that, given these unique First Amendment interests, universities have a "right to select those students who will contribute the most to the `robust exchange of ideas.'" Id. (quoting Bakke, 438 U.S. at 313, 98 S.Ct. 2733 (Powell, J., concurring)).
Deference thus was due to the University not because its interest was "simply to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin ... but [because it] was defined by reference to the educational benefits that [such] diversity is designed to produce," id. (quotations and citations omitted) — and of crucial importance, because those "educational benefits" were not merely socially compelling, id. at 330-33, 123 S.Ct. 2325, but fundamentally internal to the university's "academic" mission. Id. at 328, 123 S.Ct. 2325. The Court emphasized: "The benefits are important and laudable, because classroom discussion is livelier, more spirited, and simply more enlightening and interesting when the students have the greatest possible variety of backgrounds." Id. at 330, 123 S.Ct. 2325 (quotations and citations omitted).
2
Beyond the fact that Grutter deferred only to the Law School's identification of its interests as compelling — and, contrary to the dissent here, not to its tailoring analysis — neither of Grutter's grounds for affording deference is present here. First, secondary schools do not occupy the same "special niche in our constitutional tradition" as higher education, and the Court has never held they possess a similar First Amendment right of academic freedom. Indeed, while the Court has been willing to afford secondary schools some limited leeway to enable them to meet their most basic need (preserving the orderly school environment necessary to enable academic 982*982 learning[43]), the Court has never suggested that public secondary schools have a constitutional right to select their student body, much less that such a right entails selecting students based solely on their race — a power that not even universities enjoy, despite their uniquely privileged status. Quite in contrast, the Court has repeatedly condemned racial balancing, held that a State's creation of a system of compulsory public education endows students (not schools) with a constitutionally-protected interest, and has pointedly reminded school authorities that "`[t]he Fourteenth Amendment ... protects the citizen against the State itself and all of its creatures — Boards of Education not excepted.'" Goss, 419 U.S. at 574, 95 S.Ct. 729 (quoting W. Va. Bd. of Educ. v.

Barnette, 319 U.S. 624, 637, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943)); see also Grutter, 539 U.S. at 330 & 336, 123 S.Ct. 2325.
Second, the principal benefits the School District seeks through its pursuit of racial proportionality are neither internal to the school environment nor within the special expertise of school administrators. For although the District's asserted interests in the educational and societal benefits derivable from diverse schools mirror those embraced by Grutter, see supra at 960-65, the dissent quite properly notes that the School District has an appreciably different focus. Rather than primarily seeking the internal academic benefits of diversity, the District's chief focus is on the broader social benefits diversity can stimulate. See post at 991-92.
We do not believe this divergent emphasis changes the nature of the District's interests; they remain compelling, and thus can justify an appropriately limited use of race. See supra Sections III.B.3 & III.C.3. But it does affect the degree to which the District can claim deference. With regard to its secondary pursuit of diversity's internal academic benefits, we believe that while limited deference to educational institutions arguably could be due when they pursue core goals, such deference is entirely unwarranted when they court tangential ones. Having proceeded from the premise that the internal academic benefits of diversity are secondary to the District's socialization mission, it is at best curious that the dissent nonetheless maintains we should defer to the District's particularly crude use of a most disfavored classification in their pursuit.[44]
Far more important, we see a crucial difference between a school's pursuit of the internal academic benefits of diversity and its pursuit of diversity's external social benefits. For although the former manifest within the District's schoolhouses, and thus are susceptible to ready appraisal exclusively by education policymakers, the "democratic" benefits attributable to classroom diversity are diffuse, manifest long after students leave the classroom, do so in contexts not subject to the exclusive oversight of teachers, and cannot be measured with skills possessed uniquely by educators. That is to say: While it is clear that educators are uniquely positioned to gauge how classroom discussions respond to shifts in classroom racial composition, they are not similarly well-positioned to assess how marginal changes in schoolhouse racial demographics affect how students interact with each other years after they leave school for the "real world." 983*983 And to the limited extent they may have such insight, the record does not suggest the District ever sought to appraise the long-term social effects of engineering proportional demographic changes in connection with its design of the tiebreaker.
B
Beyond the dissent's unfettered deference to the School District — a constitutional departure that we think undermines its supposed "strict scrutiny" of the tiebreaker — one of its most striking features is its lack of focus on the data. For if it is true that a picture is worth a thousand words, there are times when statistics give Proust a run for his money.[45]
1

The dissent simply seems to assume that absent the racial tiebreaker, Seattle's public high schools would be "racially concentrated, or racially isolated," and thus unable to attain diversity's benefits. Post at 993; id. at 1001-1002, 1009-1010, 1011 & n. 39. The record belies its assumption. Uncontroverted data produced by the School District during this litigation and contained in the record indicate that, in the absence of the racial tiebreaker, 2000-2001 school year enrollments at Seattle's public schools would have been as follows:

TABLE 1: 2000-2001 DEMOGRAPHICS

WITHOUT RACIAL TIEBREAKER

---------------------------------------------------------------------

NATIVE

NON-WHITE

SCHOOL

ASIAN BLACK LATINO AMERICAN WHITE OVERALL

---------------------------------------------------------------------

BALLARD

14.7% 8.9% 9.6%

4.3%

62.5%

37.5%

---------------------------------------------------------------------

CHIEF SEALTH

27%

18%

21%

3%

32%

68%

---------------------------------------------------------------------

CLEVELAND

43%

35%

10%

2%

10%

90%

---------------------------------------------------------------------

FRANKLIN

39.3% 34.6% 5.5%

0.8%

19.8%

80.2%

---------------------------------------------------------------------

GARFIELD

12.5% 34.7% 4.4%

1.1%

47.2%

52.8%

---------------------------------------------------------------------

INGRAHAM

38%

19%

9%

4%

30%

70%

---------------------------------------------------------------------

NATHAN HALE 17.4% 12.1% 6.4%

3.3%

60.8%

39.2%

---------------------------------------------------------------------

RAINIER BEACH 30%

52%

8%

2%

8%

92%

---------------------------------------------------------------------

ROOSEVELT

26.8% 6.7% 8.7%

3.0%

54.8%

45.2%

---------------------------------------------------------------------

W. SEATTLE

26%

15%

10%

2%

46%

54%

---------------------------------------------------------------------

Far from revealing "racially concentrated" or "racially isolated" student bodies, these figures demonstrate that each of the District's schools would enroll a vibrant array of students without considering race at all.[46] (Only by indulging the fallacious proposition that interethnic diversity is irrelevant to the District's putative democratic mission could one conclude otherwise.)[47] It is thus particularly hard to 984*984 credit the dissent's assumption that the tiebreaker is necessary to the District's fulfillment of its diversity oriented goals.[48] &[49]

Such an assumption becomes even less tenable in light of the tiebreaker's limited effect where it does operate. Indeed, the data demonstrate that the tiebreaker produces only the most trivial annual changes in school demography.

TABLE 2: 2000-2001 DEMOGRAPHIC IMPACT OF THE

RACIAL TIEBREAKER

-----------------------------------------------------------

NATIVE

SCHOOL

ASIAN BLACK LATINO AMERICAN WHITE

-----------------------------------------------------------

BALLARD

+ 2.8% + 1.9% + 1.1% + 0.3% - 6.1%

-----------------------------------------------------------

FRANKLIN

- 2.5% - 2.4% - 0.3% - 0.1% + 5.3%

-----------------------------------------------------------

NATHAN HALE + 0.5% + 1.2% + 0.6% + 0.1% - 2.4%

-----------------------------------------------------------

ROOSEVELT + 2.3% + 1.0% + 0.2% + 0.1% - 3.7%

-----------------------------------------------------------

Given enrollment totals at these schools, the tiebreaker's annual effect is thus merely to shuffle a few handfuls of different minority students between a few schools — about a dozen additional Latinos into Ballard, a dozen black students into Nathan Hale, perhaps two dozen Asians into Roosevelt, and so on. The District has not met its burden of proving these marginal changes substantially further its interests,[50] much less that they outweigh the cost of subjecting hundreds of students to 985*985 disparate treatment based solely upon the color of their skin.[51]

2

Beyond casting serious doubt on the School District's need to use its racial tiebreaker, the numbers undermine the dissent's assessment of its efficacy — and yet again, on the dissent's own terms. For present purposes, we take at face value the dissent's identification of the District's primary interest as ensuring "that children learn to interact with peers of different races," post at 1001; see also post at 992-93, and accept arguendo its claim that "when a racially integrated school system is the goal ..., there is no more effective means than a consideration of race to achieve a solution." Post at 1001, 1010. We credit for the moment its assessment that it is appropriate to "link [] the integration tiebreaker to the racial demographic of the District's population [because] the District is trying to teach its students to be effective participants in the racially diverse environment in which they exist," post at 1010-1011 (emphasis added), and we ignore both that the tiebreaker does not operate where it would be most needed to meet the dissent's articulation of the District's goals and that its demographic impact is trivial where it does operate. Yet even then, it is clear to us that the School District's racial tiebreaker falls well short.

Because the tiebreaker relies on a crude white/non-white metric of racial identity, representation of particular minorities varies widely within the schools where it operates (indeed, throughout the school system). Once again, consider data produced by the School District and contained in the record:

TABLE 3: 2000-2001 DEMOGRAPHICS

WITH RACIAL TIEBREAKER

-------------------------------------------------------------------

NATIVE

NON-WHITE

SCHOOL

ASIAN BLACK LATINO AMERICAN WHITE OVERALL

-------------------------------------------------------------------

BALLARD

17.5% 10.8% 10.7%

4.6%

56.4%

43.6%

-------------------------------------------------------------------

FRANKLIN

36.8% 32.3% 5.2%

0.7%

25.1%

74.9%

-------------------------------------------------------------------

NATHAN HALE 17.9% 13.3%

7%

3.4%

58.4%

41.6%

-------------------------------------------------------------------

ROOSEVELT 29.1% 7.7% 8.9%

3.1%

51.1%

48.9%

-------------------------------------------------------------------

Given that the demographic impact of the tiebreaker during the 2000-2001 school year was merely to shift overall white/ non-white student ratios by at most 6.1 percent at the schools where it operated, supra at 984, Table 2, these are truly enormous variations. The range in representation of Asians at the tiebreaker schools (19.3 percent, as Asian representation ranged from just 17.5 percent of students 986*986 at Ballard to a whopping 36.8 percent of students at Franklin) was more than 3 times the size of the tiebreaker's maximum annual impact on overall white/non-white ratios; and the range in black representation (24.6 percent, ranging from 32.3 percent of students at Franklin to just 7.7 percent of students at Roosevelt) was more than 4 times the maximum annual white/non-white impact.[52] &[53]
These representational variances cut to the core of the dissent's defense of the tiebreaker's design. For if the tiebreaker's goal is (as the dissent characterizes it) to assure every student the opportunity to interact with the right ratio of different-looking peers in order to prepare them for life in our diverse society, the program plainly fails huge numbers of students. Consider: Roughly 600 black students at Garfield during the 2000-2001 school year were deprived of the chance to interact with a sufficient number of Asian students (12.5 percent of Garfield students versus 27.5 percent of students in the school population at large); more than 100 Latino students at Roosevelt were denied a chance to interact with an adequate number of African-American peers (7.1 percent of Roosevelt students versus 22.8 percent of the student population at large); 600 Asian students at Franklin were unable adequately to interact with Native American students (0.8 percent of Franklin students versus 2.5 percent of the student population at large). And thousands of other students left their schools not having been inadequately exposed to interaction with certain racial minorities, but rather having been overexposed to them — and thus likewise not having been readied "to be effective participants in the racially diverse environment in which they exist." Cf. post at 1010-1011. Even taking at face value the dissent's embrace of racial balancing, these data indicate the tiebreaker does not even rationally further the impermissible ends the dissent trumpets.
C
The final major point of departure between our opinion and the dissent is perhaps the most significant: We believe the dissent errs in failing to recognize the injury rendered by the tiebreaker. We have already explained that the individual right to equal treatment is implicated any time government uses race to apportion benefits or burdens. Here, in determining where some 300 students will attend high school, the School District crudely approximates the shades of their skin and assigns them to schools accordingly. Nonetheless, the dissent surprisingly suggests that not one of those students suffers a legally cognizable injury (whether such an injury can be justified or not) because the constitutional prohibitions against determinative racial preferences and quotas do not apply to secondary education, and because each of those students will get a basic education anyway. We address these claims in turn.
1
The dissent suggests that the constitutional prohibitions against determinative 987*987 racial preferences and quotas do not apply within the secondary educational context

because secondary schools do not employ race as a proxy for merit, and thus pose little risk of stigmatizing or stereotyping those they putatively benefit. Post at 999-1002. Its analysis cannot be squared with precedent.
The Court has long prohibited the use of outright quotas in contexts where merit and qualification are — as the dissent asserts them to be here — completely irrelevant. Thus, Croson rejected Richmond's racial quota for construction contracts on grounds that the "quota cannot be said to be narrowly tailored to any goal, except perhaps outright racial balancing." Croson, 488 U.S. at 507, 109 S.Ct. 706. Of course, when dealing with contracting, the only "qualification" or indicum of "merit" is submission of a low bid. Croson's constitutional objection to the City's use of a quota was thus not that it threatened to stigmatize minorities: It was that quota-driven racial balancing is flatly at odds with the Fourteenth Amendment's" `ultimate goal' of `eliminat[ing] entirely from governmental decisionmaking such irrelevant factors as a human being's race." Id. at 500, 109 S.Ct. 706 (quoting Wygant, 476 U.S. at 320, 106 S.Ct. 1842 (Stevens, J., dissenting)) (alteration in original).
Likewise, courts have rejected the use of race-based quotas in legislative redistricting. As the Fifth Circuit has put the point, "[D]istricters are not bound — or allowed — to sacrifice traditional districting concerns to meeting quotas of diversity, just as they are not allowed to do so in order to meet quotas of racial concentration." Chen v. City of Houston, 206 F.3d 502, 511 (5th Cir.2000); see also Easley v. Cromartie, 532 U.S. 234, 241 & 257, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001) (recognizing that race may not be the predominant factor in legislative districting, and noting that an email referencing "racial balance" constituted evidence of such an "improper[]" use of race). But surely redistricting involves no "competition" or "consideration of merit," and of course "no stigma results from any particular [districting] assignment." Cf. post at 1000. At bottom, the problem with the imposition of a racial quota and the use of inflexibly mechanical racial preferences is not simply that they impermissibly conflate skin color with merit or qualification; it is that, more than any euphemistic "thumb on the scale," they breed deep-seated cross-racial resentment and do violence to the constitutional principle that "we are just one race here. It is American." Adarand, 515 U.S. at 239, 115 S.Ct. 2097 (Scalia, J., concurring).[54]
2
Even more baffling is the dissent's claim that because the District ultimately assigns each student to a "quality" high school offering a "baseline ... education," no applicant rejected on the basis of his or her race "suffers a constitutionally significant 988*988 burden" from the tiebreaker's operation. Post at 1000-1001, 1012-1013.
We certainly agree with the dissent's observation that no student has a right to attend the school of his or her choice or to attend a school offering anything more than the standard education mandated by state law. Post at 1012-1013. What the dissent seems to overlook is that individuals likewise have no right to welfare benefits, Shapiro v. Thompson, 394 U.S. 618, 627 n. 6, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), unemployment compensation, Sherbert v. Verner, 374 U.S. 398, 404, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), overruled on other grounds by Employment Div. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), a tax exemption, Sherbert, 374 U.S. at 406, 83 S.Ct. 1790 (discussing Speiser

v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958)), or a public job, Perry v. Sindermann, 408 U.S. 593, 597-98, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Yet no one would seriously maintain that, as a result, states or localities could condition the distribution and extent of such benefits on the basis of race.[55]
The dissent's appeal to the rights/privileges distinction in this context is particularly ironic because it readily parallels arguments long ago repudiated in this context. Indeed, it quite unintentionally evokes the State of Missouri's argument that because it had no duty to supply legal education, and there was therefore no personal "right" to a legal education, no one could suffer a legally cognizable injury from the University of Missouri Law School's use of a racial classification in admissions. Yet as the Court explained in rejecting that claim, "The question here is not of a duty of the State to supply legal training, or of the quality of the training which it does supply, but of its duty when it provides such training to furnish it to the residents of the State upon the basis of an equality of right." Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 349-50, 59 S.Ct. 232, 83 L.Ed. 208 (1938).
Likewise, we think the issue here is not whether students have a right to attend the school of their choice, or one of significantly above-average quality. It is whether having made available a choice-based system of public education the District may use race to circumscribe parental choices in the way it has. The dissent's suggestion that it may do so because all are "equally subject" to such discrimination, post at 1012 (emphasis in original), cannot be correct: Across-the-board wrongs do not, as the dissent reasons, make a right.
D
Unfortunately, the dissent's thin scrutiny of the District's racial tiebreaker strays far from constitutional norms — and it inadvertently threatens to entrench a permanent regime of racial discrimination. For if public education's most compelling mission really is to prepare children to interact with those who look different by balancing each school's racial profile, then the Constitution's promise of equal justice will remain unfulfilled for the inestimable number of future generations during which race inevitably will be perceptible.
V
Because the School District's use of the racial tiebreaker violates the equal protection mandate of the Fourteenth Amendment, we REVERSE the decision of the District Court and REMAND with instructions 989*989 to ENJOIN the School District from using the racial tiebreaker, as most recently constituted, in making future high school assignments.
GRABER, Circuit Judge, dissenting:
Fifty years after Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), required the integration of public schools "with all deliberate speed," 349 U.S. 294, 301, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), segregated schools remain in many communities, often as a result of segregated housing patterns.[1] Seattle has been no exception to the struggle to achieve and maintain integrated schools. After decades of more coercive efforts to counteract the effects of segregated housing patterns, Seattle School District No. 1 ("the

District") in 1998 adopted a high school assignment plan ("the Plan") to maximize school choices for students and their families while continuing to ensure that integrated public schools are available to all. I respectfully dissent from my colleagues' conclusion that the Plan is unconstitutional.[2] When understood in context, the Plan is narrowly tailored to serve a compelling governmental interest in ensuring that all students in Seattle's public high schools receive the educational benefits of an integrated learning environment.
The Supreme Court of the United States has never decided a case involving the consideration of race in a voluntarily imposed school assignment program that is intended to promote integrated secondary schools. The Court's recent decisions regarding the consideration of race in selective admissions to institutions of higher learning do not control in the secondary-school context, but they provide several guiding principles. First, the Court in Grutter v. Bollinger, 539 U.S. 306, 328, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003), clarified that remediation of past official or de jure discrimination is not the only permissible reason for a government to use racial classifications; one permissible reason for considering race is to achieve the educational benefits of diversity. Second, as the Court reminded us in Grutter:
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 particular context.
Id. at 327, 123 S.Ct. 2325.[3] Finally, the Court emphasized that "narrow tailoring" is a factbased analysis, noting that the inquiry in Grutter had to be "calibrated to fit the distinct issues raised by the use of race to achieve student body diversity in public higher education." Id. at 334, 123 S.Ct. 2325.
In order to calibrate our inquiry to fit the distinct issues raised by the use of race as a factor in a school assignment program in a public school district, I believe it is 990*990 necessary, first, to understand the governmental interests that the District is trying to further and, second, to employ a narrow-tailoring analysis that is appropriate to the secondary-school setting and to the process of assigning every student to a high school. Doing so leads me to conclude that the Plan is narrowly tailored to serve compelling governmental interests.[4]
I. The District's interests in employing a raceconscious classification are compelling, but are not identical to those asserted in Grutter and Gratz v. Bollinger, 539 U.S. 244, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003).
As the majority rightly notes, "diversity" can be an amorphous concept. Maj. op. at 962. Indeed, the compelling interest that the Court recognized in Grutter is not "diversity" per se but, rather, promotion of the specific educational and societal benefits that flow from diversity. See Grutter, 539 U.S. at 329-30, 123 S.Ct. 2325 (noting that the law school's

concept of critical mass must be "defined by reference to the educational benefits that diversity is designed to produce"). In evaluating the relevance of diversity to higher education, the Court focused principally on two benefits that a diverse student body provides: (1) the learning advantage of having diverse viewpoints represented in the "robust exchange of ideas" that is critical to the mission of higher education, id. at 329-30, 123 S.Ct. 2325; and (2) the greater societal legitimacy that institutions of higher learning enjoy by cultivating a cadre of national leaders who are representative of our country's diversity, id. at 331-33, 123 S.Ct. 2325. The Court also mentioned the role of diversity in challenging stereotypes. Id. at 330, 333, 123 S.Ct. 2325; see also Lani Guinier, Admissions Rituals as Political Acts: Guardians at the Gates of Our Democratic Ideals, 117 Harv. L.Rev. 113, 17576 (2003) (observing that the diversity interest recognized in Grutter has "three important elements ...: diversity is pedagogical and dialogic; it helps challenge stereotypes; and it helps legitimate the democratic mission of higher education" (footnotes omitted)). The Court explicitly deferred to the law school's "educational judgment that such diversity is essential to its educational mission." Grutter, 539 U.S. at 328, 123 S.Ct. 2325.
Because strict scrutiny requires us to evaluate the "fit" between the government's means and its ends, Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 280 n. 6, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986), it is critical to identify precisely the governmental interests — the ends — to which the government's use of race must be fitted. See United States v. Paradise, 480 U.S. 149, 171, 107 S.Ct. 1053, 94 L.Ed.2d 203 (1987) (noting that, in order to determine whether an order was narrowly tailored, "we must examine the purposes the order was intended to serve"). In other words, before we assume that the District shares the interest identified in Grutter, we must consider carefully the interests the District asserts and then determine whether the District's interests are compelling.
The District's interests are connected. First, the District seeks the affirmative educational benefits that flow from racial diversity (which, as I will discuss below, are different in K-12 education than in higher education). Second, and related, is the District's interest in preventing its 991*991 school assignment system from replicating Seattle's segregated housing pattern;[5] that is, the District has an interest in ensuring that each one of its students has access to the educational benefits of an integrated school environment.
A. The District has a compelling interest in the educational benefits of racial diversity in secondary education.
The District has established that racial diversity produces compelling educational benefits in secondary education.[6] Because the educational benefits that the District seeks are materially different from those sought by the university in Grutter, however, the type of diversity required to produce those benefits is also different.
The university sought to further the academic and professional development of its students through the "livelier, more spirited, and simply more enlightening and interesting" classroom discussions that result when students have "the greatest possible variety of backgrounds." Grutter, 539 U.S. at 330, 123 S.Ct. 2325 (internal quotation marks omitted). Aggrieved applicants accused the university of using race as an impermissible proxy for particular

viewpoints and perspectives, but the Court disagreed, holding that racial diversity added to the mix of diversity factors by representing the "unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters." Id. at 333, 123 S.Ct. 2325. encompasses the K-12 context as a whole.
Although secondary-school educators share the university's academic goals to some extent,[7] achieving diversity of viewpoint and background is not the sole — or even the primary — reason for promoting an integrated secondary-school environment. Cf. Comfort ex rel. Neumyer v. Lynn Sch. Comm., 283 F.Supp.2d 328, 381 n. 90 (D.Mass.2003) ("The value of a diverse classroom setting at these ages does not inhere in the range of perspectives and experience that students can offer in discussions; rather, diversity is valuable because it enables students to learn racial tolerance by building cross-racial relationships.").[8]
992*992 The District begins its own explanation of its interest in classroom diversity by noting the socialization and citizenship advantages of racially diverse schools. See maj. op. at 960-61 (quoting the School Board's "Statement Reaffirming [the] Diversity Rationale"). Indeed, courts have recognized that the fundamental goal of K-12 education is to prepare children to be good citizens — to socialize children and to inculcate civic values.[9] See Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 683, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986) (stating that the inculcation of civic values is "truly the work of the schools" (internal quotation marks omitted)); Plyler v. Doe, 457 U.S. 202, 221-23, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) (noting that public education perpetuates the political system and the economic and social advancement of citizens); Ambach v. Norwick, 441 U.S. 68, 76-77, 99 S.Ct. 1589, 60 L.Ed.2d 49 (1979) (observing that public schools transmit to children "the values on which our society rests," including "fundamental values necessary to the maintenance of a democratic political system"); Brown, 347 U.S. at 493, 74 S.Ct. 686 ("[Education] is required in the performance of our most basic public responsibilities.... It is the very foundation of good citizenship."); see also Comfort, 283 F.Supp.2d at 381 n. 90 ("[A]t the elementary, middle, and high school level, the goal of teaching socialization is at least as important as the subject matter of instruction.").[10] In Washington, such civic training is mandated by the state constitution: "Our constitution is unique in placing paramount value on education for citizenship." Parents Involved in Cmty. Schs. v. Seattle Sch. Dist., No. 1, 149 Wash.2d 660, 72 P.3d 151, 158 (Wash.2003).
In our society, in which "race unfortunately still matters," Grutter, 539 U.S. at 333, 123 S.Ct. 2325, the "goals of teaching tolerance and cooperation among the races[ ][and] of molding values free of racial prejudice ... are integral to the mission of public schools," Parents Involved, 72 P.3d at 162.[11] Achieving those teaching goals requires the presence of a racially diverse student body. See Comfort, 283 F.Supp.2d at 376-77 ("If the compelling goal of the Plan is to train citizens to 993*993 function in a multiracial world, actual intergroup racial contact is essential."). The District has emphasized the importance of interaction with peers of other races in educating students for citizenship; school officials, relying on their experience as teachers and administrators, and the District's expert all explained these benefits on the record. Even Plaintiff's expert admitted that students are widely perceived to benefit from the information that they gain from increased contact with children of other races.[12] See also Boston's Children First v. City of Boston, 62 F.Supp.2d 247, 259 (D.Mass.1999) ("Diversity may well be more important at this stage than at any

other — [because elementary school] is when first friendships are formed and important attitudes shaped...."). As the United States Supreme Court has noted, this educational goal is relevant for the entire community:
Attending an ethnically diverse school may help accomplish this goal by preparing minority children for citizenship in our pluralistic society while, we may hope, teaching members of the racial majority to live in harmony and mutual respect with children of minority heritage.
Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 473, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982) (citations and internal quotation marks omitted).
The majority misperceives the distinction between the interest recognized in Grutter and the one that I would recognize here. See maj. op. at 982-83. The District's socialization and citizenship training is no more tangential or external to the educational experience of a secondary school than is academic training to the educational experience offered by a law school. The University of Michigan wanted to promote a stimulating academic environment so that its graduates would become accomplished and well-rounded members of the legal profession; the District wants to encourage integrated schools so that its graduates will become tolerant, productive, and well-adapted members of this racially diverse society. In both cases, although the benefits are external and long-term, the teaching occurs — and can be observed and evaluated — within the school environment.
In short, the District has a compelling interest in educating all students in a racially diverse learning environment, to educate them effectively to take their places in a racially diverse society.
B. The District has a compelling interest in reducing racial isolation and ameliorating de facto segregation.
The District's interest in achieving the affirmative benefits of a racially diverse educational environment has a flip side: avoiding racially concentrated, or racially isolated, schools. In particular, the District is concerned with making the educational benefits of an integrated school environment available to all its students. Thus, in addition to striving for better academic and social outcomes across the board, the District has been motivated by its belief that "[n]o student should be required to attend a racially concentrated school."[13] In other words, the Plan 994*994 strives to ensure that patterns of residential segregation are not repeated as patterns of educational segregation that would be "determinative of a child's opportunity." Comfort, 283 F.Supp.2d at 384.
This "flip side" makes the District's interest different from any that could have been posited in Grutter. Universities (like most other entities that select a few from among a pool of competitive applicants) are not, in any direct sense, responsible for the welfare of the entire universe of their applicants. That is, so long as all applicants are treated fairly in the competition for access to the limited government benefit, a university may design a class of students that satisfies its academic objectives without worrying about the effect that its admissions decisions have on rejected applicants.[14] Public school districts, on the other hand, must consider not only the affirmative effect that a student's assignment to a

particular school will have on the level of diversity in that school, but also the concomitant effect of that assignment on the entire school system.
As the district court did in this case,[15] several courts have conceived of a school district's voluntary reduction or prevention of de facto segregation as a compelling interest. See Brewer v. W. Irondequoit Cent. Sch. Dist., 212 F.3d 738, 752 (2d Cir.2000) (holding that "a compelling interest can be found in a program that has as its object the reduction of racial isolation and what appears to be de facto segregation"), superseded on other grounds as stated in Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 171 n. 7 (2d Cir.2001); Parent Ass'n of Andrew Jackson High Sch. v. Ambach, 738 F.2d 574, 579 (2d Cir.1984) ("[W]e held that the Board's goal of ensuring the continuation of relatively integrated schools for the maximum number of students, even at the cost of limiting freedom of choice for some minority students, survived strict scrutiny as a matter of law.") (citing Parent Ass'n of Andrew Jackson High Sch. v. Ambach, 598 F.2d 705, 717-20 (2d Cir.1979)); Comfort, 283 F.Supp.2d at 384-86 (holding that a school district had a compelling interest in ameliorating the effects of de facto residential segregation); Hampton v. Jefferson County Bd. of Educ., 102 F.Supp.2d 358, 379 (W.D.Ky.2000) (noting that "voluntary maintenance of the desegregated school system should be considered a compelling state interest," such that a district may consider race in assigning students to comparable schools).
None of the school districts in the above-cited cases was subject to a court-ordered 995*995 desegregation decree nor, with one exception, did the schools face an imminent threat of litigation to compel desegregation.[16] Like the Seattle School District, they may have been vulnerable to litigation in decades past,[17] but the districts' voluntary desegregation measures today would make it difficult to make the required showing that the districts intended to create segregated schools. See, e.g., Comfort, 283 F.Supp.2d at 390 (explaining that the district's vulnerability to litigation had been "headed off by the very Plan in contention here"). It is well established that school districts have no obligation to remedy de facto (as distinct from de jure) segregation. Freeman v. Pitts, 503 U.S. 467, 495, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992). Nevertheless, several courts have pointed out the irony of a conclusion that a measure that could be required to remedy segregation could not be adopted voluntarily to prevent segregation. See, e.g., Comfort, 283 F.Supp.2d at 384-85 ("It would make no sense if [school] officials were obliged to take responsibility for addressing these adverse consequences [of segregated schools] but at the same time were constitutionally barred from taking voluntary action aimed at nipping some of these effects in the bud."); Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 137 F.Supp.2d 1224, 1235 (W.D.Wash.2001) ("[I]t would defy logic for this court to find that the less intrusive programs of today violate the Equal Protection Clause while the more coercive programs of the 1970's did not."); Hampton, 102 F.Supp.2d at 379 ("It is incongruous that a federal court could at one moment require a school board to use race to prevent resegregation of the system, and at the very next moment prohibit that same policy.").
In essence, what these courts have recognized is that school districts have a prospective, even if not a remedial, interest in avoiding and ameliorating real, identifiable de facto racial segregation. Support for this conclusion comes from statements in the Supreme Court's school desegregation cases, which repeatedly refer to the voluntary integration of schools as sound educational policy within the discretion of local school officials. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971)

(stating that school authorities "are traditionally charged with broad power to formulate and implement educational policy and might well conclude ... 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"); N.C. State Bd. of Educ. v. Swann, 402 U.S. 43, 45, 91 S.Ct. 1284, 28 L.Ed.2d 586 (1971) ("[A]s 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."); Bustop, Inc. v. Bd. of Educ. of L.A., 439 U.S. 1380, 1383, 99 S.Ct. 40, 58 L.Ed.2d 88 (Rehnquist, Circuit Justice 1978) (denying a request to stay implementation of a desegregation 996*996 plan and noting that there was "very little doubt" that the Constitution at least permitted its implementation); Keyes v. Sch. Dist. No. 1, 413 U.S. 189, 242, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973) (Powell, J., concurring in part and dissenting in part) ("School boards would, of course, be free to develop and initiate further plans to promote school desegregation.... Nothing in this opinion is meant to discourage school boards from exceeding minimal constitutional standards in promoting the values of an integrated school experience."); Seattle Sch. Dist., 458 U.S. at 480, 487, 102 S.Ct. 3187 (reinstating the Seattle School District's authority to use mandatory busing to correct de facto segregation).
Of course, these statements must be considered in the light of the Court's later decisions in City of Richmond v. J.A. Croson Co., 488 U.S. 469, 507, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (holding that "outright racial balancing" did not constitute a permissible reason to establish a quota for awarding construction contracts); Freeman, 503 U.S. at 494, 112 S.Ct. 1430 (holding that, in the absence of a constitutional violation, the district court had no power to order"[r]acial balance ... for its own sake"); and Grutter, 539 U.S. at 329-30, 123 S.Ct. 2325 (stating that the law school's concept of "critical mass" was permissible only because it was not "outright racial balancing," but rather was "defined by reference to ... educational benefits"). Those decisions establish that the government may not act in furtherance of racial balance without a compelling nonracial reason. Unless and until the Supreme Court says otherwise, however, I would heed its repeated statements that the voluntary integration of public schools, in response to specific conditions of de facto segregation and in furtherance of legitimate educational policies, can be a constitutionally permissible interest.
In sum, I would hold that the District has a compelling interest in structuring its assignment policies to prevent a return to the era in which Seattle's undisputedly segregated housing pattern was the exclusive determinant of school assignments to neighborhood schools.
C. Deference to administrators' expertise in education policy is warranted.
In addition to signaling specifically its approval of voluntary measures to promote integrated schools, the Supreme Court repeatedly has shown deference to school officials at the intersection between constitutional protections and educational policy. See generally Wendy Parker, Connecting the Dots: Grutter, School Desegregation, and Federalism, 45 Wm. & Mary L.Rev. 1691 (2004). Local control over public education has animated Supreme Court jurisprudence from the dawn to the apparent twilight of federal-court involvement in the desegregation of public schools. See, e.g., Brown, 349 U.S. at 299, 75 S.Ct. 753 (directing

local school officials, with court oversight, to devise remedies for segregation in the light of "varied local school problems"); Milliken v. Bradley, 418 U.S. 717, 741-42, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) ("No single tradition in public education is more deeply rooted than local control over the operation of schools; local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to quality of the educational process."); Freeman, 503 U.S. at 490, 112 S.Ct. 1430 ("As we have long observed, `local autonomy of school districts is a vital national tradition.'") (quoting Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 410, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977)). In the context of a challenge to a school-funding system, the Court was motivated, in part, by concerns about the judiciary's lack of 997*997 competency in the area of educational policy. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 42, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) (stating, in its rational-basis review of a school-funding system, that "this case ... involves the most persistent and difficult questions of educational policy, another area in which this Court's lack of specialized knowledge and experience counsels against premature interference with the informed judgments made at the state and local levels").[18] Thus, although I agree that public secondary schools do not have "a constitutional right to select their student body," maj. op. at 981-82,[19] they have been given considerable discretion to devise school assignment policies, even in the face of adjudicated constitutional violations.
The Supreme Court also has shown solicitude toward the educational objectives of public school administrators in balancing those educational objectives with students' First Amendment rights. See, e.g., Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) (holding that educators may censor student speech in school-sponsored forums for valid educational reasons and noting that "[t]his standard is consistent with our oft-expressed view that the education of the Nation's youth is primarily the responsibility of parents, teachers, and state and local school officials, and not of federal judges"); see also Comfort, 283 F.Supp.2d at 374 & n. 83 (citing Supreme Court cases involving the balancing of schools' curricular needs against students' rights under the First, Fourth, and Eighth Amendments, as well as the Due Process Clause of the Fourteenth Amendment). This deference recognizes not merely a school's need to preserve order so as to promote pure "academic" learning, as the majority suggests, maj. op. at 982, but also to teach students that certain kinds of discourse are "wholly inconsistent with the `fundamental values' of public school education," Bethel Sch. Dist., 478 U.S. at 685-86, 106 S.Ct. 3159.
These Supreme Court decisions suggest that secondary schools, like universities, occupy a "special niche" in our constitutional tradition, albeit one that owes more to the values of federalism and to the public schools' broad educational mission than to a desire to safeguard academic freedom. For this reason, I would afford some deference to the District's judgment that integrated schools are essential to its educational mission and would extend to the District's identification of its core values a deference similar to that which the Grutter Court afforded the university. See Grutter, 539 U.S. at 328, 123 S.Ct. 2325; cf. Petit v. City of Chicago, 352 F.3d 1111, 1114 (7th Cir.2003) (extending deference, pursuant to Grutter, to the "views of experts and Chicago police executives that affirmative action was warranted to enhance the operations" of the Chicago Police Department), cert. denied, ___ U.S. ___, 124 S.Ct. 2426, 158 L.Ed.2d 984 (2004).

In sum, I am convinced by the record, as well as by deference to the District's expertise in educational policy, that the District's interests in obtaining the educational benefits of diversity in secondary education and in ameliorating the de facto 998*998 segregation caused by Seattle's segregated housing pattern are compelling as a matter of law.
II. The District's Plan is narrowly tailored to achieve its compelling governmental interests.
The narrow-tailoring inquiry is intended to "`smoke out' illegitimate uses of race" by ensuring that the government's classification is closely fitted to the compelling goals that it seeks to achieve. Croson, 488 U.S. at 493, 109 S.Ct. 706. As discussed above, the analysis must fit the context of the challenged governmental action. Grutter, 539 U.S. at 327, 333-34, 123 S.Ct. 2325. For example, the factors that the Court uses to assess narrow tailoring in the employment context, Paradise, 480 U.S. at 171, 107 S.Ct. 1053,[20] must be modified for use in the context of higher education. See Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234, 1252 (11th Cir.2001) ("We do think, however, that the Paradise factors should be adjusted slightly to take better account of the unique issues raised by the use of race to achieve diversity in university admissions."). Likewise, some of the factors used to assess programs related to employment or higher education are of doubtful relevance in the context of K-12 school assignment plans. See Hampton, 102 F.Supp.2d at 380 ("The workplace, marketplace, and higher education cases are poor models for most elementary and secondary public school education...."). We must consider which narrow-tailoring factors are appropriate to this context; our inquiry
pivots not merely on the fact that race is used in a school plan, but how it is used, in what settings, for what purposes, whether it is race conscious or race preferential, whether it involves an examination school (or a college or law school) for which there are significant qualifications, or an elementary school, for which there are not, whether the use of race excludes or simply affects the distribution of a benefit....
Boston's Children, 62 F.Supp.2d at 259.
Because of the differences in setting, several of the narrow-tailoring factors employed by the Supreme Court in Grutter and Gratz — and by the majority in this case — have no logical relevance to the evaluation of secondary-school assignment plans like the District's. After fashioning an appropriately contextualized narrow-tailoring analysis, I will consider the Plan in its broader historical and factual context and conclude that the Plan satisfies strict scrutiny.
A. Narrow-tailoring factors involving "holistic review" and "quotas" have no relevance in the context of assigning students to secondary schools.
For two reasons, cases involving selective admissions to institutions of higher learning do not provide a proper "narrow tailoring" model for this case.[21] First, 999*999 they involve

situations in which a school grants or denies access to a limited government benefit based on the school's evaluation of a particular applicant's merit; using race as a proxy, or as a substitute, for merit in awarding this benefit raises problems of stereotyping and stigma that are absent from the District's Plan. Second, the institutions involved in those cases seek the "true diversity" befitting their advanced academic orientations; as I have discussed, the diversity interest in the K-12 context involves different educational benefits and, like the District's related interest in ameliorating de facto segregation, is more appropriately achieved through an explicit consideration of racial diversity.
1. Where competition for a limited government resource is absent, rules about how competition may be conducted are irrelevant.
In Grutter, the Supreme Court "define[d] the contours of the narrow-tailoring inquiry with respect to race-conscious university admissions programs." See Grutter, 539 U.S. at 333, 123 S.Ct. 2325. In the context of university admissions, where applicants compete for a limited number of spaces in a class, the Court focused its inquiry on what role race may play in judging an applicant's qualifications. The Court's underlying concern is for fair competition — to prevent race from being used as an outright substitute for merit in the competition for access to a limited government resource, in part because of the stigma that may attach. See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 298, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (Powell, J., concurring) (stating that "preferential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor having no relationship to individual worth"); Croson, 488 U.S. at 493, 109 S.Ct. 706 ("Classifications based on race carry a danger of stigmatic harm. Unless they are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility."); see also Gratz, 539 U.S. at 272-73, 123 S.Ct. 2411 (applying the narrow-tailoring inquiry to ensure that applicants of all races have the opportunity to prove their merit based on a broad range of criteria). In Grutter, the Court discussed two specific rules to ensure fair competition. 539 U.S. at 334, 123 S.Ct. 2325. The first prohibits "quotas," which insulate applicants from certain groups from competition with applicants from other groups for some portion of the available slots.[22] Id. 1000*1000 at 335, 123 S.Ct. 2325. The second rule prevents race from being used as a mechanical proxy for merit by requiring individualized consideration of the merit of each applicant, across a broad range of factors (of which race may be but one). Id. at 336-37, 123 S.Ct. 2325.
Neither of those requirements, which concern how universities are permitted to evaluate merit, is relevant in a situation where there is absolutely no competition or consideration of merit at issue. All high school students must and will be placed in a Seattle public school. The students' relative merit is irrelevant. There are no special qualifications for assignment to any school, so no stigma results from any particular school assignment.[23] The dangers of substituting racial preference for fair, merit- or worth-based competition are absent here. Justice Powell recognized this very fact in his landmark opinion in Bakke, which reasoned that the use of racial classifications to desegregate schools was fundamentally different from the selective admissions context because, in the school assignment context, "white

students [were not] deprived of an equal opportunity for education." Bakke, 438 U.S. at 301 n. 39, 98 S.Ct. 2733.
Justice Powell's comment suggests an even more fundamental reason why a careful, holistic, individualized consideration of an applicant's worth is not necessary here: No student is being excluded from the government resource at issue — a free public education.[24] In the assignment process, all students are accommodated with the same baseline high school education.[25] As 1001*1001 I will discuss in more depth below, differences among the high schools may be relevant to our consideration of the "burdens" that the Plan imposes, but perceived or actual differences in academic quality do not transform the District's assignment process into a competition for access to a limited government resource. This is especially true where it is clear that every student can enroll in at least one of Seattle's oversubscribed, "quality" high schools.
2. Where "true diversity" is not the goal, consideration of a broad range of diversity factors is unnecessary.
Another rationale for the Court's requirement of holistic review is that it provides a closer fit with a university's interest in viewpoint diversity. Grutter, 539 U.S. at 337, 123 S.Ct. 2325. The Court held that it was impermissible to presume that race would correlate with viewpoint, perspective, or background; rather, the university must evaluate each applicant's viewpoint, perspective, and background. Id. at 338-39, 123 S.Ct. 2325.
The danger that race would be used to "fill[ ] stereotyped `viewpoint' niches," Comfort, 283 F.Supp.2d at 379, is not present here. The diversity interest in K-12 education is much simpler: that children learn to interact with peers of different races. That interest requires that there be children of different races in the classroom. Rather than relying on stereotypes, intergroup contact has the opposite effect; it inhibits the formation of stereotypes by teaching children that "all people are different no matter what their color or ethnic background." Id. In other words, the District's focus on racial diversity is not a presumption that students of the same race will share common viewpoints; the presence of students of different races is meant to break down, rather than to further, racial stereotypes by giving students an opportunity to learn that race does not signal an individual's viewpoint, perspective, or background.
Moreover, the holistic review necessary to achieve "true diversity" is of even less relevance to the District's interest in preventing and ameliorating de facto racial segregation. As the Second Circuit has said:
If reducing racial isolation is — standing alone — a constitutionally permissible goal, as we have held it is ..., then there is no more effective means of achieving that goal than to base decisions on race. ... [T]he cases cited by the District Court in support of its decision that the use of race alone in the Program was not narrowly tailored only address the efficacy of employing strictly racial classifications to achieve "true diversity." Those decisions are, therefore, inapplicable to the present situation where the Program's aim ... is precisely to ameliorate racial isolation in the participating districts.

Brewer, 212 F.3d at 752-53 (citations omitted). In other words, when the District's compelling interest is in racial diversity, it makes little sense to ask it instead to evaluate a student's musical talent, athletic prowess, or eligibility for a free lunch.[26]
1002*1002 B. Viewed in its historical and factual context, the District's Plan satisfies an appropriate narrow-tailoring test.
Except for rejecting the narrow-tailoring factors peculiar to situations of competition and "true diversity," I have no disagreement with the majority's identification of the remaining narrow-tailoring factors. As I will discuss, I conclude that the Plan satisfies the narrowtailoring test. But first, in order to facilitate an accurate narrow-tailoring inquiry, I believe it is necessary to supplement the majority's statement of facts by placing the District's adoption of the Plan in a broader factual context.
1. The broader context of desegregation efforts and the Board's decision to adopt the Plan.
The increase in Seattle's minority population after World War II was concentrated first in the central, then in the southeast, area of the city.[27] Because school assignments were made strictly on the basis of neighborhood, schools in the central and southeast areas reflected that population concentration. In 1962, the central area's Garfield High School reported 64 percent minority enrollment (it accommodated 75 percent of all black students), and six of the central area elementary schools had at least 75 percent minority enrollment.[28] Meanwhile, the eight high schools serving other major areas of the city remained more than 95 percent white.
In the 1960's, the District responded to this imbalance in various ways. It granted the central area principals' request for special financial assistance. It responded to racial tensions by experimenting with exchange programs, in which a handful of students switched high schools for several weeks. And in 1963, the District implemented a voluntary racial transfer program, through which a student could transfer to any school with available space, if the transfer would improve the racial balance at the receiving school. Although this program had some positive results, it did not reduce the racial imbalance significantly.
In the 1970's, the District stepped up its efforts. It adopted a plan to desegregate centralarea middle schools by requesting volunteers to transfer between minority- and majoritydominated neighborhood schools and ordering mandatory transfers when the numbers of volunteers were insufficient. The District also took steps to desegregate Garfield High School by changing its educational program, improving its facilities, and eliminating the "special transfers" that had allowed white students to leave the Garfield area. In addition, for the 1977-78 school year, the District instituted a magnet-school program to promote desegregation. According to the District's history:

1003*1003 While it appeared evident that the addition of magnet programs would not in itself desegregate the Seattle schools, there was supportive evidence that voluntary strategies, magnet and non-magnet, could be significant components of a more comprehensive desegregation plan.
By the 1977-78 school year, Franklin was 78 percent minority, Rainier Beach 58 percent, Cleveland 75 percent, and Garfield 64 percent. Other high schools ranged from 9 percent to 23 percent minority enrollment, with one school (Lincoln) at 37 percent. See Seattle Sch. Dist., 458 U.S. at 461, 102 S.Ct. 3187 (noting that the racial imbalance in Seattle's schools had increased between the 1970-71 and 1977-78 school years).
In the spring of 1977, the NAACP filed a complaint with the Office of Civil Rights, alleging that Seattle's School Board had acted to further racial segregation in the city's schools. Several other organizations, principally the ACLU, threatened to file an action in court if the District failed to adopt a mandatory desegregation plan. When the District agreed to develop a desegregation plan, the Office of Civil Rights concomitantly agreed to delay its investigation, and the ACLU agreed to delay filing a lawsuit. See Seattle Sch. Dist., 458 U.S. at 460 n. 2, 102 S.Ct. 3187 (describing this threat of litigation).
During the summer of 1977, the District and community representatives reviewed five model plans. Ultimately, the District incorporated elements of each model into its final desegregation plan, adopted in December 1977 and known as the "Seattle Plan." The Seattle Plan divided the district into zones, within which majority-dominated elementary schools were paired with minority-dominated elementary schools to achieve racial balance. Mandatory high school assignments were linked to elementary-school assignments, although various voluntary transfer options were available. With the Seattle Plan,
Seattle became the first major city to adopt a comprehensive desegregation program voluntarily without a court order. By doing so the District maintained local control over its desegregation plan and was able to adopt and implement a plan which in the eyes of the District best met the needs of Seattle students and the Seattle School District.
"History of Desegregation" at 36-37. An initiative was passed immediately to block implementation of the Seattle Plan, but the initiative ultimately was declared unconstitutional by the United States Supreme Court. Seattle Sch. Dist., 458 U.S. at 470, 102 S.Ct. 3187 (holding that the initiative violated equal protection).
The Seattle Plan apparently furthered the District's school desegregation goals, but its operation was unsatisfactory in other ways.[29] In 1988, the District abandoned the Seattle Plan and adopted a new plan that it referred to as "Controlled Choice." Under the Controlled Choice plan, schools were grouped into clusters that met state and district desegregation guidelines, and families were permitted to rank schools within the relevant cluster, increasing the predictability of assignments. Because of Seattle's housing patterns, the District's planners explained that "it was impossible to fashion clusters in a geographically contiguous manner"; some cluster schools were near the student's home, but others were in "racially and culturally different neighborhoods." Although roughly 70 percent 1004*1004 of students received their first choices, the Controlled Choice plan still resulted in mandatory busing for 16 percent of the District's students.

In the mid-1990's, District staff were directed to devise a new plan for all grade levels to simplify assignments, reduce costs, and increase community satisfaction, among other things; the guiding factors were to be choice, diversity, and predictability. Staff developed four basic options, including the then-existing Controlled Choice plan, a regional choice plan, a neighborhood assignment plan with provision for voluntary, integration-positive transfers, and an open choice plan.
Board members testified that they considered all the options, as they related to the District's educational goals — with special emphasis, at the secondary-school level, on the goals of choice and diversity. Neighborhood and regional plans were viewed as unduly limiting student choice, on which the District placed high value because it was seen to increase parental involvement in the schools and promote improvements in quality through a marketplace model. The District sought to maintain its commitment to integrated education by establishing diversity goals, but moving away from the rigid desegregation guidelines and mandatory assignments prevalent in the 1970's and 1980's. The Board adopted the current, open choice Plan for the 1998-99 school year.
The Plan now under review permits students to rank their choices among the District's 10 high schools. The District has sought to make each of the 10 schools unique, with programs that attempt to respond to the continually changing needs of students and their parents.[30] Only when oversubscription results from families' choices — as, of course, it has — does the District become involved in the assignment process. Assignments to oversubscribed schools proceed by way of a series of tiebreakers: first, students with a sibling attending the selected school are assigned; second, if but only if the school deviates from the District's proportion of white and minority students by more than a specified percentage,[31] students who bring that school closer to the ratio are assigned; third, students are assigned in order of the distance from their homes to the school.[32] The first and third tiebreakers seek to further the District's goal of parental involvement, and the second is directed toward the District's diversity goal. Students not assigned to one of their chosen schools are assigned to the closest school with space available; naturally, students who list more choices are less likely to receive one of these "mandatory" assignments.
Having examined the District's interests and the specifics of the Plan in its historical context, I will turn next to a consideration of whether the Plan is narrowly tailored to serve the compelling governmental interests that I have identified.
2. The District's Plan is narrowly tailored.
A narrow-tailoring analysis requires consideration of three traditional groups of 1005*1005 factors: (1) the necessity for the action and the efficacy of alternative, race-neutral remedies; (2) the extent to which the action is proportional to the District's interests (particularly, whether it is of limited duration and is flexible, in relation to its objective); and (3) the relative weight of any burden on third parties. See Paradise, 480 U.S. at 171, 107 S.Ct. 1053; see also Comfort, 283 F.Supp.2d at 371-73. As I stated above, the purpose of this inquiry is to "`smoke out' illegitimate uses of race" by ensuring that the government's means are closely fitted to its ends. Croson, 488 U.S. at 493, 109 S.Ct. 706.

(a) The Plan achieves the District's diversity goals more effectively than any workable race-neutral alternative.

(i) Need for the integration tiebreaker

The integration tiebreaker allows the District to make students' and parents' choices among high schools the primary feature of its educational plan,[33] while discouraging a return to enrollment patterns based on Seattle's racially segregated housing pattern. When the District moved from its Controlled Choice plan to the current, open choice Plan, it predicted that families would tend to choose schools close to their homes. Indeed, this feature was seen as a positive way to increase parental involvement. However, unfettered choice — especially with tiebreakers based on neighborhood or distance from a school — raised the risk that Seattle's high school enrollment would begin to reflect its segregated housing patterns. The District's 2000-01 enrollment data showed that, of the students living in the southern half of Seattle, only 23 percent are white (6,247 out of 27,377 students), as compared with 64 percent of the students living in the northern half of the city (12,571 out of 19,555 students).

It is de facto residential segregation across this white/ nonwhite axis that the District has battled historically and that it sought to prevent by making the integration tiebreaker a part of its open choice Plan. Although I have no doubt that other forms of race-based tension exist, see maj. op. at 983-84 n. 47, the District reasonably placed its focus here. The District has consistently faced a pattern in which its white students live predominately in the northern half of the city (in 2000-2001, 66.8 percent of the District's white students lived in the northern half of the city) and its students of color — in each of the three largest categories that the District tracks[34] — live predominately in the southern half of the city. In 2000-2001, 74.2 percent of the District's Asian students, 83.6 percent of its Black students, and 65 percent of its Hispanic students lived in the southern half of the city:

2000-01 ENROLLMENT BY GEOGRAPHIC AREA

-----------------------------------------------------

GEOGRAPHIC AREA ASIAN BLACK HISPANIC WHITE

-----------------------------------------------------

NORTH

2,879 1,778

1,693

12,571

-----------------------------------------------------

SOUTH

8,269 9,054

3,145

6,247

-----------------------------------------------------

TOTAL

11,148 10,832 4,838

18,818

-----------------------------------------------------

PERCENTAGE OF

STUDENTS SOUTH

74.2% 83.6%

65.0%

33.2%

-----------------------------------------------------

1006*1006 Moreover, Seattle's peculiar geography makes its northern neighborhoods and schools distant from its southern neighborhoods and schools. In these circumstances, the District permissibly could prioritize white/nonwhite, primarily north/ south, movement. This white/nonwhite focus also is consistent with the history of public school integration

measures in this country, as reflected in a current federal regulation defining "[m]inority group isolation" as "a condition in which minority group children constitute more than 50 percent of the enrollment of the school," without distinguishing among the various categories included within the definition of "[m]inority group." 34 C.F.R. § 280.4(b).

To discourage choices that would perpetuate this north-south division between the district's white and nonwhite populations, the District gave priority to choices that would counter it and create north-south movement within the District. In the 2000-01 school year, the integration tiebreaker operated in four high schools (that is, four high schools were oversubscribed and deviated by more than 15 percent from the ratio of white to nonwhite students District-wide). Although the integration tiebreaker was a limited measure, in contrast to the District's previous efforts, it did serve to alter the imbalance in the schools in which it operated.

The majority's contrary view is based on a skewed presentation of the enrollment statistics. Figures reflecting the tiebreaker's total effect on a school's enrollment, such as those cited in the majority opinion, see maj. op. at 984 ("Table 2"), 985 ("Table 3"), 985 (citing a maximum shift of 6.1 percent in the white/nonwhite ratio), artificially minimize the tiebreaker's effect by failing to recognize that students enter the ninth grade in much greater numbers than they transfer to other schools after the ninth grade. The following statistics submitted by the District, which portray directly the effect of the tiebreaker on the make-up of the ninth grade classes at the four affected schools, illustrate the function of the tiebreaker far more accurately:

2000-01 CHANGE IN PERCENTAGES OF STUDENTS OF COLOR IN

NINTH GRADE CLASSES

------------------------------------------------------

WITHOUT

WITH

INTEGRATION INTEGRATION PERCENT

SCHOOL

TIEBREAKER TIEBREAKER CHANGE

------------------------------------------------------

FRANKLIN

79.2

59.5

- 19.7

------------------------------------------------------

NATHAN HALE

30.5

40.6

+ 10.1

------------------------------------------------------

BALLARD

33.0

54.2

+ 21.2

------------------------------------------------------

ROOSEVELT

41.1

55.3

+ 14.2

------------------------------------------------------

In other words, the majority's references to a 6.1 percent maximum shift do not tell the whole story.

Still, without the integration tiebreaker, the freshman classes at some of the affected northend schools may well have been sufficiently diverse to promote interaction across the white/nonwhite axis and to prevent the tokenization of nonwhite students. See maj. op. at 984 n. 49. However, without the integration tiebreaker, the Plan would have operated to prevent students of color who lived in the south end of Seattle from attending those schools because of the schools' distance from south-end neighborhoods. The tiebreaker furthered the District's goal of giving south-end students of color the opportunity to 1007*1007 opt out

of attending the more racially concentrated schools in their neighborhoods, if they so desired.
Certainly, the integration tiebreaker does not attempt to achieve perfect adherence to the District-wide ratios in each of the District's high schools. Except by encouraging an optout, the tiebreaker does not directly alter the racial make-up of schools that are not oversubscribed, even that of the south-end schools that diverge widely from District-wide proportions. See supra note 13. I do not, however, view the Plan's underinclusiveness as a fatal flaw.
Indeed, I find it peculiar that the majority's rebuttal makes so much of the failure of the District's Plan to achieve perfect racial balance. To be sure, in strict scrutiny review, especially in the First Amendment context, a law's underinclusiveness can be a sign that the enacting authority was not in fact motivated by its stated objectives. See Republican Party of Minn. v. White, 536 U.S. 765, 780, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002) (noting that underinclusiveness impairs the credibility of the government's rationale for restricting speech) (citing City of Ladue v. Gilleo, 512 U.S. 43, 52-53, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994)). Apparently, in order for the majority to find that a race-conscious means is necessary to achieve the District's stated goals, the means would have to produce perfect adherence to the District's racial make-up — which, in Seattle's circumstances, only aggressive districting, forced busing, and more intrusive racial classifications could do. However, requiring that the chosen means achieve perfect balance would make strict scrutiny impossible to satisfy, because the burden caused by the Plan — the third element of the narrow-tailoring inquiry — would be enormous. That is why, in contexts more relevant to this case, such as employment, courts have found that the modesty — i.e., the underinclusiveness — of government action is a point in favor of a conclusion that the action was narrowly tailored. See, e.g., Cotter v. City of Boston, 323 F.3d 160, 171 (1st Cir.) ("The necessity for relief was great, but the means chosen by the Department were modest — only three African-American officers were promoted out of rank — indicating narrow tailoring."), cert. denied, ___ U.S. ___, 124 S.Ct. 179, 157 L.Ed.2d 47 (2003).
Because strict scrutiny is not meant to be "fatal in fact," Grutter, 539 U.S. at 326, 123 S.Ct. 2325, I would hold that the District's modest measures, which were enacted to decrease the intrusiveness and burden of its assignment policy, do not cause its Plan to become unnecessary or the District's motivations to become suspect. And, the Plan furthers the District's goals better than any workable race-neutral alternative.
(ii) Race-neutral alternatives
In Grutter, the Court explained that narrow tailoring "require[s] serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks." 539 U.S. at 339, 123 S.Ct. 2325 (emphasis added). On the other hand, "[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative."[35] Id. Furthermore, 1008*1008 the Court made clear that the university was not required to adopt race-neutral measures that would have forced it to sacrifice other educational values central to its mission. Id. at 340, 123 S.Ct. 2325. Implicit in the Court's analysis was a measure of deference toward the university's identification of those values. See id. at 328, 340, 123 S.Ct. 2325 (affording deference to the university's judgment that

diversity and "academic selectivity" were important to its educational mission). By affording deference to the university's identification of its core educational values in this context, the Court simply recognized that whether a race-neutral measure is truly an alternative in the first place depends on whether that measure is consistent with an institution's core values.
The majority faults the District for failing to consider seriously three specific race-neutral measures. Maj. op. at 970-975. One of the majority's suggestions — that the District measure and assign students according to their "true diversity," maj. op. at 971-72 — cannot properly be considered an "alternative," because it is not directed toward achieving the District's interest in a racially integrated learning environment. See supra pp. 1001. Furthermore, it is clear from the record that the school board has discussed the use of other diversity measures, including poverty, as a tiebreaker. Although the majority correctly points out that there has been no formal study of that proposal by District staff, Board members' testimony reveals two legitimate reasons why the majority of the Board rejected the use of poverty measures to reach its goal of racial diversity: one, it is insulting to minorities and often inaccurate to assume that the two populations are coextensive; and, two, implementation would be thwarted by high school students' reluctance to reveal their socioeconomic status to their peers.
The majority also asserts that the District should have considered more formally a proposal developed by the Urban League (which, incidentally, did not eliminate the integration tiebreaker, but merely demoted it). Maj. op. at 973-75. The majority quotes at length from the colorful and often emotional testimony of one Board member, who clearly was not impressed by the proposal. But there was other testimony from other Board members suggesting that the Board was aware of, and informally considered, the Urban League's proposal. Board member Schaad-Lamphere testified that she remembers reading the Urban League's plan and considered it to be similar to other regional assignment plans being proposed at the same time; she testified that she weighed it as she did other community input. Furthermore, the testimony of Board member Nielsen is consistent with Superintendent Olchefske's understanding that regional plans, including the Urban League's, had been disfavored by the Board because of the high value the District placed on choice among the different academic offerings at the various high schools. In other words, when all the testimony in the record is examined, it is clear that the Urban League's plan was in fact considered and that it was rejected for legitimate educational reasons.[36]
1009*1009 The majority concludes that such informal consideration is inadequate and that we should evaluate the District's consideration of race-neutral alternatives using the same rigorous evidentiary standard that we use to evaluate whether a local government has proved that past discrimination justified its enactment of a remedial minority set-aside program. Maj. op. at 972 (citing cases that elucidate the latter standard). To the contrary, our cases on set-aside programs plainly employ different standards to these different analyses — with a more permissive view toward the analysis of race-neutral alternatives. Compare Coral Constr. Co. v. King County, 941 F.2d 910, 916-22 (9th Cir.1991) (discussing, within its "compelling government interest" analysis, the high burden of demonstrating actual discrimination by the county), with id. at 923 (noting, under the raceneutral alternatives prong of the narrow-tailoring analysis, that "some degree of practicality is subsumed in the exhaustion requirement" and that exhaustion of every possible alternative is not required); see also Associated Gen. Contractors of Cal., Inc. v. Coalition

for Econ. Equity, 950 F.2d 1401, 1416-17 (9th Cir.1991) (citing Coral). Under the relevant standard, the District adequately considered the alternatives.
Finally, the majority would require the District to "earnestly appraise [ ]" a random, citywide lottery for high school assignments. Maj. op. at 970 (emphasis omitted). In view of the District's clear commitment to educational choice among high schools, and in view of its desire to provide students with an opportunity to attend school closer to home, the majority's suggestion flatly contradicts the Grutter Court's approach to narrow tailoring:
The District Court took the Law School to task for failing to consider race-neutral alternatives such as "using a lottery system".... But [this] alternative[ ] would require a dramatic sacrifice of diversity, the academic quality of all admitted students, or both.
...
... We are satisfied that the Law School adequately considered race-neutral alternatives currently capable of producing a critical mass without forcing the Law School to abandon the academic selectivity that is the cornerstone of its educational mission.
539 U.S. at 340, 123 S.Ct. 2325. The university, in other words, was not required to "earnestly appraise[ ]," maj. op. at 970 (emphasis omitted), a lottery system. The majority is incorrect in its conclusion that the District must do so, despite the harm that a lottery would do to the goals of choice and parental involvement that lie at the heart of its educational mission.[37]
It is a closer question whether the District's goals could be met by using a pure lottery tiebreaker — that is, a lottery to determine which of the students who had chosen a particular school would be enrolled there. This format would allow the District to retain its emphasis on choice and would cause unhappiness more randomly. 1010*1010 However, as Superintendent Olchefske explained, District patterns suggested that more people would choose schools close to home, thus raising the justifiable concern that the pool of students choosing a particular school would be skewed in favor of the demographic of the surrounding residential area. Indeed, when the District adopted the Plan, it could not predict exactly how much harm open choice would do to the racial diversity of its schools. A lottery, in the face of this uncertainty, would have left the District without a safety net for its diversity goals and, moreover, would have prevented the District from furthering the policy goals reflected in its sibling and proximity tiebreakers.
Over the long history of its efforts to achieve integrated schools, the District has experimented with many alternatives, including magnet and other special-interest programs, which it continues to employ, and race-conscious districting.[38] But when a racially integrated school system is the goal (or racial isolation is the problem), there is no more effective means than a consideration of race to achieve a solution. Even Plaintiff's expert conceded that, "if you don't consider race, it may not be possible to offer an integrated option to students.... [I]f you want to guarantee it you have to consider race." As Superintendent Olchefske stated, "when diversity, meaning racial diversity, is part of the educational environment we wanted to create, I think our view was you took that issue head on and used — you used race as part of the structures you developed." The logic of this point is sound: When race is a principal element of the government's compelling interest,

then race-neutral alternatives seldom will be equally efficient. Cf. Hunter v. Regents of Univ. of Cal., 190 F.3d 1061, 1066 (9th Cir.1999) (upholding, as narrowly tailored, a research elementary school's admissions policy that explicitly considered race in pursuit of a racially balanced research sample). Of course, race-conscious remedies still must be proportional to the government's interest.
(b) The Plan satisfies requirements of proportionality, flexibility, and limited duration.
The District's plan is proportional to its interests and is sufficiently flexible and time-limited to meet the requirements of narrow tailoring.
(i) Proportionality
To determine whether the means adopted are proportional to the government's interest, courts have considered the "relationship between the numerical relief ordered and the percentage of nonwhites in the relevant [school population]." Paradise, 480 U.S. at 179, 107 S.Ct. 1053; see Tuttle v. Arlington County Sch. Bd., 195 F.3d 698, 706 (4th Cir.1999) (per curiam) (applying Paradise's proportionality analysis to K-12 student assignment plans); Comfort, 283 F.Supp.2d at 372 (same); see also Brewer, 212 F.3d at 756-57 (Miner, C.J., dissenting) (same).
The principal question here is whether linking the integration tiebreaker to the racial demographic of the District's population — rather than, for instance, that of the city of Seattle — overshoots the District's goals. Specifically, Plaintiff suggests that, even when they are considered 1011*1011 "out of balance" by the District (i.e., when they deviate from the 60/40 ratio by more than 15 percent and thus enroll less than 45 percent or more than 75 percent nonwhite students), Seattle's oversubscribed schools are sufficiently racially diverse to achieve the District's goals.
I disagree that the District's means significantly overshoot its goals. First, the District is trying to teach its students to be effective participants in the racially diverse environment in which they exist. Superintendent Olchefske noted that Seattle's school-age demographic is significantly more racially diverse than the demographic for its population as a whole. ("There [are] a lot of elderly white people in this town," he noted.) And he stated that the District has no regular access to data on the racial make-up of Seattle's private school students.
Second, even if the racial mix at some of the oversubscribed high schools would be sufficiently diverse for the District to achieve its goals[39] in those schools without the integration tiebreaker, this fact would not account for the effect of the integration tiebreaker on the overall school system. A clear objective of the School Board was that "no child should be required to attend a racially concentrated school." Removing the integration tiebreaker would mean that non-white students living in the southern area of the city, where neighborhoods and schools are more racially concentrated, would not have an opportunity

for access to the more diverse schools in the northern part of the city, simply because of where they live. Giving them this access furthers the District's diversity goals.
Furthermore, the fact that a particular oversubscribed high school would draw a sufficiently diverse population in a given year without the integration tiebreaker does not guarantee that it would continue to do so. As I discussed above, open choice puts school assignment in the hands of the students; a tiebreaker tied to the District's racial demographic is a natural way for the District to retain a safety net.
(ii) Flexibility
The District also has shown that its Plan is flexible in the short term and that its approach has been flexible over the long term. The District no longer forces white students south, nor nonwhite students north. For this reason, racial concentration has increased in some schools. But the District's response has been measured. Responsive to community concerns and its own educational goals, the District has abandoned its complicated and mandatory systems for integrating its schools. Instead, it has developed a system that gives south-end non-white students an opportunity to leave racially concentrated schools (if they wish to) and promotes integrated schools across the district, while preserving the choice that it considers so critical to parental involvement. Mandatory assignments are kept to a minimum,[40] and waivers are permitted for various reasons. The District's consistent movement from coercive to voluntary integration measures 1012*1012 lends credence to its argument that it is working, through improvements to its programs, to reduce or eliminate oversubscription and therefore to reduce its reliance on the integration tiebreaker.
Furthermore, the Plan is not inflexible in the manner of a quota; the integration tiebreaker operates only when patterns of individual choice result in oversubscription, and only until the school approximates the characteristics of the district as a whole. Choice, not a prescribed ratio of white to nonwhite students, controls the overwhelming majority of assignments. And choice patterns have been shown to change over time, as new facilities and programs are offered at different schools.
The District has demonstrated its ability to be responsive to these choice patterns and to the concerns of its constituents. It revisits the plan annually.[41] In 2000, when a higher than normal number of students selected the same schools, the Board responded by increasing the integration trigger from a 10 percent to a 15 percent deviation from the school population and adopting a "thermostat" that turns off the integration tiebreaker as soon as the school has come into balance. The majority considers it constitutionally significant that the Board rejected a staff suggestion that the trigger instead be increased to 20 percent. Board members testified that they rejected a 20 percent trigger, in effect, because it would fail to assist students in moving from racially concentrated south-end schools. In other words, the proposed 20 percent trigger would no longer promote the Board's goals; it therefore could not be considered narrowly tailored to achieve the District's compelling interest because it would not achieve that interest at all. The Board's decision thus is not a sign that the Board has failed, as the majority suggests, to "minimize [the] adverse impact on third parties," maj. op. at 975.

(c) Relative burden on third parties.
The majority assumes that every student who is denied his or her choice of schools because of the integration tiebreaker suffers a constitutionally significant burden. As I foreshadowed above, however, I consider the District's Plan to impose a minimal burden that is shared equally by all of the District's students. See Parents Involved, 72 P.3d at 15960 (noting that the burden of not being allowed to attend one's preferred school is shared by all students equally).
When we view the Plan on the large scale, without attempting to anticipate students' subjective and shifting preferences for different schools, all the District's students are equally subject to the possible burden of being denied their first choices. Only when we conceive of the Plan narrowly, by imagining two students — one white, one nonwhite — who are next door neighbors and have identical preferences for Ballard or for Franklin high school, will one student bear a "burden" and the other gain a "benefit."
Yet it is well established that "there [is] no right under Washington law to attend a local school or the school of the student's 1013*1013 choice." Id. at 159.[42] Of course, students and their parents will nonetheless prefer some schools over others; their preferences may be based on their perceptions of a school's academic quality, on their subjective preference for a particular educational theme or program, or on the convenience of attending a particular school, among other things. These preferences result in changing choice patterns and the oversubscription of certain high schools. But oversubscribed schools do not become a limited government resource because of their popularity in a given year or their convenience for a given family. See Hampton, 102 F.Supp.2d at 380 n. 43 ("The Court understands that students and their parents might prefer one school over another. The preference may even arise from a perception that one school is better than others due to its location, its teachers and principal, or its classroom environment. However, these matters of personal preference do not distinguish those schools in a constitutionally significant sense."); see also supra note 24. Despite any differences in academic quality (or perceptions thereof), all students who enroll in a Seattle high school will receive a high school education that meets state standards. And, as the District points out, even if Plaintiff's assertions of objectively unequal school quality were accepted,[43] it is undisputed that the integration tiebreaker operates to give every student an opportunity to attend at least one of five oversubscribed "quality" high schools (because at least one is "integration positive" for both white and nonwhite students). I do not believe that students' subjective preferences for one school over another, where the existence and educational relevance of objective differences among them is disputed, make the inconvenience of a nonpreferred assignment weightier than the District's legitimate educational goals.
Finally, the District has minimized any burden by working to ameliorate the inconvenience and frustration for families who do not receive their preferred school assignments. When the popularity of the District's five oversubscribed schools spiked for 2000-01 assignments, the School Board met to consider ways to soften the adverse effects. The administration immediately began to "aggressively move the waitlists" and to attempt to increase capacity at the oversubscribed schools. The Board and the administration discussed specific, longrange plans to increase the attractiveness of the undersubscribed schools. Finally, the

District reached out to students receiving assignments to undersubscribed schools to share with them advantages of the schools of which they may not have been aware.
III. Conclusion.
For all these reasons, the Plan adopted by the Seattle School District for high school assignments is constitutional notwithstanding its inclusion of an integration tiebreaker. I would affirm the district 1014*1014 court's judgment, and I dissent from the majority's contrary holding.
[*] The Honorable Thomas M. Reavley, Senior United States Circuit Judge for the Fifth Circuit, sitting by designation.
[1] For instance, year 2000 data indicates that the average combined score on the Scholastic Achievement Tests (SATs) at Garfield was 1208 — some 154 points above the state average — while at Cleveland it was 838, some 216 points below the state average. Similarly, while just one-quarter of students at Roosevelt scored below the 25th percentile on the Iowa Tests of Educational Development, more than three-quarters of Rainier Beach students scored below the 25th percentile.
[2] For instance, Ballard High School offers a unique "Biotech Academy." Ballard describes its Biotech program as "[a] specialized learning program that brings together science, mathematics and language arts to prepare students for advanced study and a career in science." Ballard Biotech Academy Website (visited Mar. 24, 2004). The program has its own separate admissions procedure with required prerequisite classes. Admission to the program does not, however, guarantee admission to Ballard — which is governed by the School District's open enrollment plan.
[3] For graphic representations of the racial and ethnic dispersion within Seattle's population, interested readers may wish to consult the various thematic maps derived from year 2000 U.S. Census data and made available by the City of Seattle at: (visited March 29, 2004). They indicate that census tracts north of Seattle's downtown and those along the City's waterfronts tend to be predominantly white, while those south of downtown (and particularly in the City's southeast quadrant) tend to reflect more substantial non-white populations.
[4] Seattle's student population is approximately 40 percent white and 60 percent non-white. Splitting Seattle along a north-south axis, data introduced by the School District indicates that 74.2 percent of the District's Asian students, 83.6 percent of its black students, 65.0 percent of its Hispanic students, and 51.1 percent of its Native American students live in the southern half of the city. By contrast, 66.8 percent of the District's white student population lives in the northern half of the city. Overall, approximately 77.2 percent of students in the southern half of the city, and just 35.7 percent of students in the northern half of the city, are non-white.
[5] Oversubscription was apparently not tied to geographic location. The oversubscribed schools included three high schools north of downtown (Ballard, Nathan Hale, and Roosevelt) and two high schools south of downtown (Garfield and Franklin). The undersubscribed schools included one north of downtown (Ingraham), three south of downtown (Chief Sealth, Cleveland, and Rainier Beach), and one west of downtown (West Seattle).
[6] During the 2000-01 school year, the acceptable deviation (called "the band") was fixed at +/10 percent. Thus, if an oversubscribed school had fewer than 31 percent or more than 51 percent white students, the tiebreaker would operate. Between the 2000-01 and 2001-02 school years — while this litigation was pending — the school board expanded the band to +/15 percent, meaning that the tiebreaker would operate only if an oversubscribed school had fewer than 26 percent or more than 56 percent white students. During the 2000-01 school year, four of the city's five oversubscribed schools were considered integration positive and therefore employed the tiebreaker: Ballard, Franklin, Nathan Hale, and Roosevelt. With the expansion of the band to +/15 percent prior to the 2001-02 school year, the tiebreaker ceased to operate at Roosevelt.
Two further changes were made to the program prior to the 2001-02 school year. First, a so-called "thermostat" was added to the plan: The School District would cease to use the racial tiebreaker for the year at any school once its use had brought the school into racial balance. Second, the integration tiebreaker would be used only in determining the makeup of entering ninth grade classes, but would not be applied to assignments involving the limited number of students seeking to transfer high schools before the tenth, eleventh, or twelfth grades.

[7] Of course, this also means that at Franklin, non-whites are denied admission because they are not white; and at Ballard, whites are denied admission because they are white.
[8] Wash. Rev.Code § 49.60.400 ("The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.").
[9] U.S. Const. amend. XIV, §1 ("No state shall ... deny to any person within its jurisdiction the equal protection of the laws.").
[10] 42 U.S.C. § 2000d ("No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."). Title VI has long been held to be essentially co-extensive with the guarantees of the Equal Protection Clause of the Fourteenth Amendment and the equal protection component of the Fifth Amendment. See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 287, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (Powell, J., concurring) ("Title VI must be held to proscribe only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment."); id. at 329, 98 S.Ct. 2733 ("Title VI prohibits only those uses of racial criteria that would violate the Fourteenth Amendment if employed by a State or its agencies....") (Brennan, White, Marshall, and Blackmun, JJ., concurring in part); see also Alexander v. Sandoval, 532 U.S. 275, 280-81, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001).
[11] Specially concurring in the court's decision, Judge Graber likewise divined that "the racial tiebreaker that Seattle School District No. 1 uses to assign some public high school students to desirable schools plainly `grants preferential treatment' to those students on the basis of their race, in violation of Initiative 200." Parents II, 285 F.3d at 1253 (Graber, J., specially concurring).
[12] See Deborah Bach, New School Board Must Work Together, Observers Say, Seattle Post-Intelligencer, Nov. 6, 2003, at B1; David Postman, Incumbents Hammered: 3 on Seattle School Board Out; 3 on Council Headed There, Seattle Times, Nov. 5, 2003, at A1.
[13] We note further that the School District's 2004-05 secondary education "Enrollment Guide" continues to describe the operation of the racial tiebreaker as part of its open choice assignment program, explaining that "The integration positive tiebreaker has been suspended for the 2004-2005 assignment period due to the pendency of a lawsuit challenging its use." See Seattle Public Schools, Middle and High School Choices 2004-2005: Enrollment Guide for Parents 44, available at http:// www.seattleschools.org/area/eso/secondary_guide_04_05.pdf (last visited June 8, 2004) (emphasis added).
[14] Because "discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI," we address Parents's twin challenges to the racial tiebreaker simultaneously. See Gratz, 539 U.S. at 276 n. 23, 123 S.Ct. 2411.
As with any grant or denial of summary judgment, the district court's resolution of cross-motions for summary judgment is reviewed de novo. United States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir.2003). Because "[n]either side contends that there are any genuine issues of material fact..., our task is to determine whether the district court correctly applied the relevant substantive law." Arakaki v. Hawaii, 314 F.3d 1091, 1094 (9th Cir.2002). Such purely legal determinations are, of course, subject to de novo review on appeal.
[15] See, e.g., Freeman v. Pitts, 503 U.S. 467, 494, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992) ("Racial balance is not to be achieved for its own sake. It is to be pursued when racial imbalance has been caused by a constitutional violation."); Metro Broad., Inc. v. FCC, 497 U.S. 547, 612, 110 S.Ct. 2997, 111 L.Ed.2d 445 (1990) ("Under the appropriate standard, strict scrutiny, only a compelling interest may support the Government's use of racial classifications. Modern equal protection doctrine has recognized only one such interest: remedying the effects of racial discrimination.") (O'Connor, J., joined by Rehnquist, C.J., Scalia and Kennedy, JJ., dissenting); Richmond v. J.A. Croson Co., 488 U.S. 469, 493, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (O'Connor, J., joined by Rehnquist, C.J., and White and Kennedy, JJ.) ("Classifications based on race carry a danger of stigmatic harm. Unless they are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility."); id. at 524, 109 S.Ct. 706 (Scalia, J., concurring) ("[T]here is only one circumstance in which the States may act by race to `undo the effects of past discrimination': where that is necessary to eliminate their own maintenance of a system of unlawful racial classification.") (emphasis in original); Fullilove v. Klutznick, 448 U.S. 448,

489, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980) (Burger, C.J., joined by White and Powell, JJ.) ("That the use of racial and ethnic criteria is premised on assumptions rebuttable in the administrative process gives reasonable assurance that application of the [contracting set-aside] program will be limited to accomplishing the remedial objectives contemplated by Congress...."); id. at 530, 100 S.Ct. 2758 (Stewart, J., joined by Rehnquist, J., dissenting) ("Since the [set-aside] provision was in whole or in part designed to effectuate objectives other than the elimination of the effects of racial discrimination, it cannot stand as a remedy that comports with the strictures of equal protection, even if it otherwise could."); Ho, 147 F.3d at 864 ("[T]he Supreme Court has not banished race altogether from our governmental systems. The concept, so long the instrument of governmental evil, so fraudulently promoted by pseudo-science, so corrosive of the rights of the person, may still be employed if its use is found to be necessary as the way of repairing injuries inflicted on persons because of race. Deployed for that limited purpose...."); Monterey Mech., 125 F.3d at 713 ("For a racial classification to survive strict scrutiny in the context before us, it must be a narrowly tailored remedy for past discrimination, active or passive, by the governmental entity making the classification."); Coral Constr. Co. v. King County, 941 F.2d 910, 920 (9th Cir.1991) ("Race-based classifications must be reserved strictly for remedial settings."); see also Hopwood v. State of Texas, 78 F.3d 932, 944 (5th Cir.1996); Contractors Ass'n v. City of Phila., 91 F.3d 586, 596 (3d Cir.1996); Aiken v. City of Memphis, 37 F.3d 1155, 1162-63 (6th Cir.1994); In re Birmingham Reverse Discrimination Employment Litig., 20 F.3d 1525, 1544 (11th Cir.1994); O'Donnell Constr. Co. v. District of Columbia, 963 F.2d 420, 424 (D.C.Cir.1992); Podberesky v. Kirwan, 956 F.2d 52, 56 (4th Cir.1992) (en banc); Cunico v. Pueblo Sch. Dist. No. 60, 917 F.2d 431, 437 (10th Cir.1990).
[16] But cf. Metro Broad., 497 U.S. at 612-13, 110 S.Ct. 2997 (O'Connor, J., dissenting) (condemning the majority's decision to apply intermediate scrutiny to racial classifications on grounds that doing so "too casually extends the justifications that might support racial classifications, beyond that of remedying past discrimination"); cf. also Croson, 488 U.S. at 493, 109 S.Ct. 706 (plurality op. by O'Connor, J.).
[17] See, e.g., Grutter, 539 U.S. at 322, 123 S.Ct. 2325 ("We granted certiorari to resolve ... [w]hether diversity is a compelling interest that can justify the narrowly tailored use of race in selecting applicants for admission to public universities.") (citation omitted); id. at 325, 123 S.Ct. 2325 ("[T]oday we endorse Justice Powell's view that student body diversity is a compelling state interest that can justify the use of race in university admissions."); id. at 331, 123 S.Ct. 2325 ("[T]he diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all...."); id. at 331-32, 123 S.Ct. 2325 ("[E]nsuring that public institutions are open and available to all segments of American society, including people of all races and ethnicities, represents a paramount government objective. [N]owhere is the importance of such openness more acute than in the context of higher education.") (quoting Brief of the United States); id. at 332, 123 S.Ct. 2325 ("[U]niversities, and in particular, law schools, represent the training ground for a large number of our Nation's leaders.").
[18] We express no opinion on the extent to which the diversity rationale extends beyond the secondary educational context. Cf. Petit v. City of Chicago, 352 F.3d 1111 (7th Cir.2004) (addressing the diversity rationale in the context of race-conscious promotions within a police department)."
[19] For present purposes, we focus on the University's post-1998 admissions program rather than its more troubling predecessors. See Gratz v. Bollinger, 122 F.Supp.2d 811, 831-33 (E.D.Mich.2000) (describing the myriad constitutional defects of the 1995-98 program).
[20] In actuality, LSA's mechanical award of 20 points may have been worth more than one-fifth of the points necessary to secure admission. In 1999, LSA also established a discretionary review process in which individual applications would be given special additional consideration from the Admissions Review Committee (ARC) if the applicant met a threshold selection index score (80 points for Michigan residents, 75 points for out-of-state residents) and was selected by an admissions officer. Id. at 256-57 & n. 8, 123 S.Ct. 2411. If chosen, ARC would consider whether the applicant "possesses a quality or characteristic important to the University's composition of its freshman class" — including race and ethnicity — and could then choose to admit such students outside the strictures of the normal selection index grid. Id. Thus, under LSA's plan, membership in an underrepresented racial group would secure an applicant at least one-fifth of the points necessary to ensure admission, as well as one-quarter of the points necessary for an individualized review that, by facilitating the double-counting of race, could lead to admission.
[21] Of some note, Justice O'Connor's concurrence (joined by Justice Breyer) highlighted key distinctions between the Law School and under-graduate programs:
The law school considers the various diversity qualifications of each applicant, including race, on a case-by-case basis. By contrast, the Office of Undergraduate Admissions relies on the selection index to assign every underrepresented minority applicant the same, automatic 20-point bonus without consideration of the particular

background, experiences, or qualities of each individual applicant. And this mechanized selection index score, by and large, automatically determines the admissions decision for each applicant. The selection index thus precludes admissions counselors from conducting the type of individualized consideration the Court's opinion in Grutter requires: consideration of each applicant's individualized qualifications, including the contribution each individual's race or ethnic identity will make to the diversity of the student body, taking into account diversity within and among all racial and ethnic groups.
Gratz, 539 U.S. at 276-77, 123 S.Ct. 2411 (O'Connor, J., concurring, joined by Breyer, J.) (emphases in original).
[22] Although we admire the School District's use of a "thermostat" designed to curtail the deleterious impact of its racial tiebreaker once the requisite racial proportion is attained in a given school, the fact that it turns the tiebreaker on and off with such numerical precision ultimately helps confirm that the School District's aim is simple proportional representation by race. Cf. Eisenberg, 197 F.3d at 132 ("The fact that the ... diversity profile for each school is reviewed and adjusted each year to avoid the facilitation and the creation of a racially isolated environment does not make the policy narrowly tailored. Instead, it manifests Montgomery County's attempt to regulate transfer spots to achieve the racial balance or makeup that most closely reflects the percentage of the various races in the county's public school population.").
[23] Indeed, when asked whether the District gave "any serious consideration to the adoption of a plan for the assignment of high school students that did not use racial balancing as a factor or goal," Superintendent Olchefske responded: "I think the general answer to your question is no. ... I mean it's possible informal ideas were floated here or there, but I don't remember any significant staff work being done." When asked whether he could "ever recall the board considering any race neutral plans," John Vacchiery (who heads the District's Facilities, Planning, and Enrollment Department) answered simply "No." And responding to inquiries regarding the possibility of using a "system kind of similar to the one you have now but without race as a tiebreaker," Board member Don Nielsen replied that "It's never been considered."
[24] As the Court explained:
The Law School[ ] ... considers race as one factor among many, in an effort to assemble a student body that is diverse in ways broader than race. Because a lottery would make that kind of nuanced judgment impossible, it would effectively sacrifice all other educational values, not to mention every other kind of diversity.
Grutter, 539 U.S. at 340, 123 S.Ct. 2325.
[25] In particular, the School District's data expert, Morgan Lewis, testified that although Board member Don Nielsen once suggested instituting an income-based tiebreaker, "[t]hat particular proposal never went anywhere, in terms of assessing how you would implement it" and that School District staff was never asked to (and so never did) examine the effect that such a tiebreaker would have on the demographic composition of the District's high schools.
[26] Even beyond this evidentiary inadequacy, we observe that the individual Board members' post-hoc litigation rationales for the Board's allegedly having "rejected" the use of broader diversity considerations do not withstand even limited scrutiny. Whether it is "often inaccurate" to assume that poverty and race are "coextensive" and "insulting to minorities" to suggest they may be, see post at 1008, it is beyond dispute that despite remarkable racial progress during the past century, see generally Stephan and Abigail Thernstrom, America in Black and White (1997), race and socioeconomic status remain correlated, so that the latter might serve as a workable race-neutral alternative satisfying the District's interest in obtaining the benefits of enrolling an otherwise diverse student population. (Of course, we can only determine whether it would do so if the School District would evaluate it.) Likewise, it is beyond dispute that any insult generated by recognizing the opportunity presented by this sad reality pales in comparison to the insult of rejecting an applicant solely because of the color of her skin (whether they are white or minority — as in this case, see supra at 955-56 & n. 7).
Finally, we find unsupportable the individual Board members' suggestion that socioeconomic integration would not result in appreciable socialization advantages because "implementation would be thwarted by high school students' reluctance to reveal their socioeconomic status to their peers." Post at 1008. For if the theory underpinning integrated schooling is (quite accurately) that it will foster cross-bounded friendships, it is inevitable that students of varying backgrounds will not only interact in the classroom, but outside it — where exposure to their peers' varying communities, families, and lifestyles will almost certainly reveal their divergent socioeconomic experiences.

[27] As their report put the point, "With quality high schools throughout the city, assignment issues will disappear."
[28] Of note, the report also concluded by discussing four additional alternatives that it ultimately declined to propose to the Board — but nonetheless deemed worthy of consideration.
[29] Our nation's public schools, especially those in central cities, currently face a crisis of epic proportions. Although black and Latino students made substantial educational gains following the demise of legalized governmental segregation, the best data on educational attainment demonstrates that no further progress has been made in the past fifteen years — and indeed that the gap between white and Asian students' educational achievement and that of blacks and Latinos has actually expanded on some measures during that period. See Stephan Thernstrom & Abigail Thernstrom, No Excuses: Closing the Racial Gap in Learning 18-21 (2003); see also John E. Chubb and Tom Loveless, eds., Bridging the Achievement Gap 1-2 (2002); David Grissmer, Ann Flanagan, and Stephanie Williamson, Why Did the Black-White Test Score Gap Narrow in the 1970s and 1980s?, in Christopher Jencks & Meredith Phillips, eds., The Black-White Test Score Gap 185-91 (1998). As the Thernstroms poignantly observe:
Racial progress on many fronts has been enormously heartening. But in a society committed to equal opportunity, we still have a racially identifiable group of educational have-nots — young African-Americans and Latinos whose opportunities in life will almost inevitably be limited by their inadequate education.... [Such] [o]ngoing racial inequality is not only morally unacceptable; it corrupts the fabric of American society and endangers our future.
Id. at 271-72.
[30] Indeed, Olchefske also recommended expanding the band in 1999.
[31] The dissent suggests that even though schools "may well have been sufficiently diverse to promote interaction across the white/nonwhite axis and to prevent the tokenization of nonwhite students" had the District used a 20 percent band (or, in something of a surprising concession, had it used no integration tiebreaker at all), see post at 1006-1007 & 1011, the District's selection of a 15 percent band was appropriate because it would facilitate greater movement of students between the south end of the District and the north. Id. Given Superintendent Olchefske's statement that the District's interests in the tiebreaker would not be served by setting the band at 15 percent instead of 20 percent, we find it hard to credit the assertion that those interests must have included such movement of students. In any event, we hardly think that non diversity-enhancing north-south integration is sufficiently compelling to justify the use of a racial classification.
[32] The only narrow tailoring requirement the School District's racial tiebreaker even arguably satisfies is the final one — that the institutional use of race be time-limited. Addressing temporal limitations in Grutter, the Court explained that "[i]n the context of higher education, the durational requirement can be met by sunset provisions in raceconscious admissions policies and periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity." 539 U.S. at 342, 123 S.Ct. 2325 (emphases added). Yet, notwithstanding the conjunctive nature of its stated requirements and in spite of the fact that Michigan's policy did not itself contain a sunset provision, the Court held the policy to be adequately limited after unhesitatingly crediting the University's pledge "that it would like nothing better than to find a race-neutral admissions formula," id. (quotation omitted), and stating that "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." Id. at 343, 123 S.Ct. 2325. Whether that vague assertion represented a "holding that racial discrimination in higher education admissions will be illegal in 25 years," id. at 351, 123 S.Ct. 2325 (Thomas, J., dissenting), or merely a "hope, but not [a] firm [ ] forecast, that over the next generation's span, progress ... will make it safe to sunset affirmative action" in accordance with the ever-powerful "international understanding of the office of affirmative action," id. at 344 & 346, 123 S.Ct. 2325 (Ginsburg, J., concurring), we cannot say. But the School District's annual review of the racial tiebreaker and the at least theoretical availability of a judicially-enforceable endpoint to the School District's racially discriminatory admissions program may well bring the policy into line with the durational limits required by strict scrutiny.
[33] Of course, the School District makes this bold assertion only when pressed by the full gravity of the Court's pronouncements. Where otherwise convenient, the School District argues that "the Michigan decisions do provide crucial guidance to this Court," and claims that beyond illuminating the contours of the compelling interest test, those decisions "also provide considerable assistance in applying the narrow tailoring element of strict scrutiny."
[34] To its credit, the dissent declines to follow the School District's lead.

[35] We emphasize the District's over-reading of Associated General at the outset because — even beyond our express failure to address the issue joined here — it is not clear that Associated General implicitly suggested that reshuffle programs do not violate the Constitution. There is a world of difference between stating that "`stacked deck' programs trench on Fourteenth Amendment values in ways that `reshuffle' programs do not," Associated General, 616 F.2d at 1387 (emphasis added), and holding that reshuffle programs designed to integrate schools cannot violate the Fourteenth Amendment at all.
[36] See also Shaw v. Hunt, 517 U.S. 899, 904-05, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996); Miller, 515 U.S. at 904, 115 S.Ct. 2475; Shaw v. Reno, 509 U.S. 630, 643, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993).
[37] Compare Miller v. Gammie, 335 F.3d 889, 902 (9th Cir.2003) (en banc) (Tashima, J., concurring) (citing Best Life Assurance Co. v. Comm'r, 281 F.3d 828, 834 (9th Cir.2002), for the proposition that "dictum [i]s a statement made during the course of delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential.") (citations and quotations omitted) with Miranda B. v. Kitzhaber, 328 F.3d 1181, 1186 (9th Cir.2003) (per curiam) ("`[W]here a panel confronts an issue germane to the eventual resolution of the case, and resolves it after reasoned consideration in a published opinion, that ruling becomes the law of the circuit, regardless of whether doing so is necessary in some strict logical sense.'") (quoting United States v. Johnson, 256 F.3d 895, 914 (9th Cir.2001) (Kozinski, J., concurring)) with United States v. Crawley, 837 F.2d 291, 292-93 (7th Cir.1988) (Posner, J.) (suggesting that rather than define dicta, courts should look to the "reasons there are against ... giving weight to a passage found in a previous opinion[:] One is that the passage was unnecessary to the outcome of the earlier case and therefore perhaps not as fully considered as it would have been if it were essential.... A closely related reason is that the passage was not an integral part of the earlier opinion — it can be sloughed off without damaging the analytical structure of the opinion, and so it was a redundant part of that opinion.... Still another reason is that the passage was not grounded in the facts of the case and the judges may therefore have lacked an adequate experiential basis for it; another, that the issue addressed in the passage was not presented as an issue, hence was not refined by the fires of adversary presentation. All these are reasons for thinking that a particular passage was not a fully measured judicial pronouncement....").
[38] In our intervening 24 years of jurisprudence addressing the use of race, we have referenced Associated General just once for the proposition that reshuffles are less suspect than stacked deck programs, and we did so only in discussing the interaction between a state ballot initiative and the Court's political structure doctrine, see Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982); Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969), rather than in applying the narrow tailoring requirement of the Fourteenth Amendment to a particular race-based program. Coalition, 122 F.3d at 707 n. 16. To the limited extent that Coalition's passing reference to school desegregation programs might bear on the Equal Protection inquiry at issue here, we note simply that — among other crucial differences — the desegregation program referred to in the Coalition footnote "bas[ed] student assignments on attendance zones rather than on race," Seattle, 458 U.S. at 461, 102 S.Ct. 3187, and thus would not even be necessarily subject to the tailoring analysis we must apply here (and to the use of all racial classifications). Adarand, 515 U.S. at 224, 115 S.Ct. 2097; Croson, 488 U.S. at 493-95, 109 S.Ct. 706.
[39] We recognize that more than 30 years ago the Court — in what is well recognized as dicta, see, e.g., Brewer v. W. Irondequoit Cent. Sch. Dist., 212 F.3d 738, 750 (2d Cir.2000) — suggested that school districts may pursue a measure of racial balance independent of constitutional requirements to remedy past discrimination. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). In contrast to the dissent, which recognizes that "these statements must be considered in the light of the Court's later decisions ... establish[ing] that the government may not act in furtherance of racial balance without a compelling nonracial reason" but then declines to so read those statements, we do not feel free to privilege a gratuitous statement over the Court's clear holdings.
[40] Although Associated General describes stacked deck programs as "specifically favor[ing] members of minorities in the competition with members of the majority," 616 F.2d at 1386, it is beyond any serious dispute that such a distinction is utterly bereft of force in the post-Croson, post-Adarand world — where our focus is on the use of racial classifications per se, rather than upon the race of those who are benefitted or burdened by the operation of the classification. Grutter, 539 U.S. at 326, 123 S.Ct. 2325; Gratz, 539 U.S. at 270, 123 S.Ct. 2411; Adarand, 515 U.S. at 224, 115 S.Ct. 2097; Croson, 488 U.S. at 493-95, 109 S.Ct. 706; see also Shaw II, 517 U.S. at 904-05, 116 S.Ct. 1894; Miller, 515 U.S. at 904, 115 S.Ct. 2475; Shaw I, 509 U.S. at 643, 113 S.Ct. 2816; Jed Rubenfeld, Affirmative Action, 107 Yale L.J. 427, 434 ("The critical holding of Adarand was that all laws employing a racial classification must undergo strict scrutiny, with no exception made on the basis of allegedly benign intentions. The classification itself is the constitutionally suspect feature of the law, the feature that triggers heightened scrutiny, regardless of which race happens to be burdened, and regardless of the particular burdens imposed.").

[41] Indeed, the oversubscribed Seattle high schools to which children of the Parents members seek admittance are "selective" in precisely the same way as the University of Michigan: Due to the quality of the education they provide, the availability of special academic programs, and their location, more students than can be accommodated seek admission — and the District must therefore determine which applicants will be offered a coveted seat in a more desirable school. We simply disagree with the dissent's assertion, post at 1012-1013, that school quality exists in some objective vacuum distinct from market assessment.
[42] We further hold that the School District's racial tiebreaker violates Title VI. See Gratz, 539 U.S. at 275 & n. 23, 123 S.Ct. 2411.
[43] See generally Abigail Thernstrom, Where Did All the Order Go? School Discipline and the Law, in Diane Ravitch, ed., Brookings Papers on Education Policy: 1999, 299-314 (1999).
[44] We offer another basis for declining to defer to the District's pursuit of racial proportionality in seeking diversity's benefits, infra at 984 n. 49.
[45] See Marcel Proust, A la recherche du temps perdu [Remembrance of Things Past, or In Search of Lost Time] (1913-27).
[46] The same picture emerges from 2002-03 school year data contained in the School District's "Individual School Profiles" report, submitted as an appendix to the supplemental amicus brief of Pacific Legal Foundation et al.
[47] Indeed, as one dissenting Board member noted in deposition testimony, "What we've done is we've defined ourself[sic] a problem by lumping all minorities together.... [O]ne of the things that the [D]istrict still hasn't come to grips with is that minorities are quite different among and between themselves and sometimes have vast differences." It is in part for this reason that the history of racial conflict in this country is not one limited to tensions among whites and non-whites. See, e.g., Bill Ong Hing, In the Interest of Racial Harmony, 47 Stan. L.Rev. 901 (1995) (discussing tensions between the African-American and Asian communities). Inter-ethnic tensions persist even within diverse high schools. See, e.g., Carl Campanile, Now It's a Federal Case, N.Y. Post, Aug. 23, 2001, at 2 (detailing a series of incidents at Brooklyn's Lafayette High School between African-American students and Asians); Elissa Gootman, City to Help Curb Harassment Of Asian Students at High School, N.Y. Times, June 2, 2004, at B9 (describing a recent consent decree designed to address these incidents, and noting the diversity of Lafayette's student population). Surely helping resolve these tensions is just as crucial to the District's mission as addressing tensions between whites and non-whites.
[48] While we do not mean to suggest that better-calibrated pure racial balancing would be constitutionally permissible, it bears note that the tiebreaker does not even operate to correct "racial imbalance" at the two schools where the white/non-white student ratio is most out of line with the District demographics (Rainier Beach and Cleveland). Supra at 955-56 n. 6; post at 993-94 n. 13. Taking the dissent on its own terms, it is thus that much harder to credit its claim that the tiebreaker is adequately designed to address the "flip side" of the District's interest — ensuring that "`[n]o student ... attend a racially concentrated school.'" Post at 993-94 (alteration in original); see also id. at 1011.
[49] We further note that these numbers show the District's high schools would enroll a proportion of underrepresented minority students already recognized by the Court as adequate to spur the internal educational benefits of diversity. This fact further counsels against deferring to the District's decision to use a racial classification here. Cf. Grutter, 539 U.S. at 320, 123 S.Ct. 2325 ("[A] race-blind admissions system would have a very dramatic, negative effect on underrepresented minority admissions.... [U]nderrepresented minority students would have comprised 4 percent of the entering class in 2000 instead of the actual figure of 14.5 percent.") (quotation omitted).
[50] Asked whether she was aware of any studies suggesting that the District's goals were better achieved by shifting enrollment proportions by "three, four, or five percentage points," Board Member Schaad-Lamphere said she was not aware of any such evidence and that she "ha[d] not used research to base [her] decisions on."
[51] It is not even clear that the tiebreaker itself is fully responsible for this trivial shuffling of students. The dissent, post at 10011 n. 40, observes that among students who were denied admission to any school of their choice by operation of the tiebreaker, some 35 percent were assigned to the same school they would have been assigned to had the tiebreaker not operated. As a consequence, the numbers in Table 3 likely overestimate substantially the demographic impact of the tiebreaker — and thus cast further doubt over its usefulness.

In turn, the fact that these changes are so marginal dovetails our holding that the District was obligated to seriously consider whether alternative arrangements could have met its goals. See supra at 970-75. Race-neutral alternatives not only may have produced equivalent levels of diversity in the District's schools, but far greater diversity than the tiebreaker.
[52] Likewise, while Latinos accounted for less than one-tenth of the students at these schools, and Native Americans less than one-twentieth of students, representational ranges for those student populations were, respectively, almost as large as the maximum effect and more than half the size of the maximum effect.
[53] The point holds even using the dissent's preferred metric (ninth grade — rather than overall — enrollment changes): Individual inter-ethnic disparities either trump or rival overall white/non-white enrollment variances attributable to the tiebreaker's operation, and the schools continue to enroll widely diverse ninth grade classes — a point essentially conceded by the dissent. Post at 1006-1007 & 1011.
[54] The dissent's assertion that the constitutional requirement of holistic review does not apply in this context fails for the same reason. Grutter and its progenitors require that one's race be considered only as one among many factors not because "holistic review ... provides a closer fit with a university's interest in viewpoint diversity," post at 1000-01, but because any interest in race alone is unconstitutional: "Outright racial balancing ... is patently unconstitutional.... Racial balance is not to be achieved for its own sake." Grutter, 539 U.S. at 330, 123 S.Ct. 2325 (quoting Freeman, 503 U.S. at 494, 112 S.Ct. 1430, and citing Bakke, 438 U.S. at 307, 98 S.Ct. 2733). Given such a clear — and oftrepeated — condemnation of the practice by the Supreme Court, it is hard seriously to credit the dissent's peculiar assertion that we misread the case law's per se ban on racial balancing. See post at 999-1000 n. 22.
[55] Recall the undisputed fact that the gap in average SAT scores between students at Garfield and Cleveland is nearly 400 points. See supra at 953-54 n. 1.
[1] See Erica Frankenberg et al., A Multiracial Society with Segregated Schools: Are We Losing the Dream? 4 (The Civil Rights Project, Harvard Univ. Jan. 2003), at http:// www.civilrightsproject.harvard.edu/research/ reseg03/AreWeLosingtheDream.pdf., cited in Gratz v. Bollinger, 539 U.S. 244, 299 n. 4, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003) (Ginsburg, J., dissenting).
[2] I agree with the majority's conclusion that the case is not moot. Maj. op. at 957-60.
[3] In other words, strict scrutiny is a tool that we use to root out the improper prejudices and stereotypes that are the baseline concern of the Equal Protection Clause. See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (stating that the aim of strict scrutiny is to determine "what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics").
[4] I agree with the majority that the rights afforded by Title VI are coextensive with those guaranteed by the Equal Protection Clause. Maj. op. at 956-57 n. 10, 959-60 n. 14. I therefore conclude that the Plan does not violate Title VI. See Grutter, 539 U.S. at 343, 123 S.Ct. 2325 (concluding that the university's admissions policy did not violate Title VI).
[5] A map created by the District's planners shows a striking pattern: Between 70 and 100 percent of the students who live in the various elementary-school "reference areas" in the south and southeast areas of the city are nonwhite, compared with 20 to 50 percent in the northern half of the city.
[6] The Plan under consideration here involves only high school assignments. However, because the District adopted the high school assignment Plan as part of a process of redesigning its school assignment system for all grade levels, the District understood its interest in diversity to span the K-12 system. Accordingly, when I discuss the details of "the Plan," I refer only to high school assignments; my discussion of the District's compelling governmental interests, however,
[7] The Board explained that "[d]iversity brings different viewpoints and experiences to classroom discussions and thereby enhances the educational process." Maj. op. at 961. The District's expert noted that, in racially diverse schools, "both white and minority students experienced improved critical thinking skills — the ability to both understand and challenge views which are different from their own."

[8] Comfort involved an elementary-school assignment plan, in which the school district allowed students to transfer from their assigned neighborhood schools only if the transfer would further the district's desegregation goals. 283 F.Supp.2d at 347-48. I agree with the court's statement in Comfort that, "[w]hile a high school's mission is surely more academic-oriented than that of the elementary schools, citizenship training is still part and parcel of the enterprise." Id. at 375 n. 84.
[9] The District's expert explained the civic benefits of diverse schools this way:
The research clearly and consistently shows that, for both white and minority students, a diverse educational experience results in improvement in race-relations, the reduction of prejudicial attitudes, and the achievement of a more democratic and inclusive experience for all citizens. More specifically, these benefits include more cross-race friendliness, reduction in prejudicial attitudes and increases in cross-race understanding of cultural differences. Recent research has identified the critical role of early school experiences in breaking down racial and cultural stereotypes. The research further shows that only a desegregated and diverse school can offer such opportunities and benefits. The research further supports the proposition that these benefits are long lasting.
(Emphasis added.)
[10] The Supreme Court in Grutter also recognized the importance of higher education in "preparing students for work and citizenship." 539 U.S. at 331, 123 S.Ct. 2325. For the Court in Grutter, this point related less to the academic benefits of diversity and more to the Court's second rationale: ensuring open access to selective institutions of higher education in order to maintain their democratic legitimacy. See id. at 331-33, 123 S.Ct. 2325.
[11] Although it has not decided whether the state constitution requires integrated schools, the Supreme Court of Washington has written:
[I]f it is determined that in a contemporary setting de facto segregated schools cannot provide children with the educational opportunities necessary to equip them for their role as citizens, then the state constitution would most certainly mandate integrated schools.
Parents Involved, 72 P.3d at 162-63.
[12] Academic research has shown that intergroup contact reduces prejudice and supports the values of citizenship. See Derek Black, Comment, The Case for the New Compelling Government Interest: Improving Educational Outcomes, 80 N.C. L.Rev. 923, 951-52 (2002) (collecting academic research demonstrating that interpersonal interaction in desegregated schools reduces racial prejudice and stereotypes, improving students' citizenship values and their ability to succeed in a racially diverse society in their adult lives).
[13] Seattle's Cleveland and Rainier Beach High Schools, located in the minority-dominated southeast area of the city, enrolled 90 and 92 percent nonwhite students, respectively, in the 2000-2001 school year. The District's view that these schools are racially concentrated is, at the very least, reasonable, if not compelled by the evidence. See 34 C.F.R. § 280.4(b) (defining "[m]inority group isolation, in reference to a school, [as] a condition in which minority group children constitute more than 50 percent of the enrollment of the school"); see also infra pp. 1005 (discussing the majority's assertion that "inter-ethnic diversity" obviates the District's need for pro-diversity and pro-integration policies, maj. op. at 983-84).
[14] There are at least two exceptions to this general proposition. First, public university systems can be ordered to desegregate to remedy the effects of past intentional or de jure segregation, as in United States v. Fordice, 505 U.S. 717, 112 S.Ct. 2727, 120 L.Ed.2d 575 (1992). Second, the Court in Grutter recognized that universities do exist in, and affect, the society as a whole and that they have a compelling interest in taking into account the effects of their admissions policies on that society. 539 U.S. at 332-33, 123 S.Ct. 2325.
[15] The district court held that"[p]reventing the re-segregation of Seattle's schools is ... a compelling interest." Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 137 F.Supp.2d 1224, 1237 (W.D.Wash.2001); see also id. at 1233-35.
[16] The Andrew Jackson cases arose out of an action by minority students seeking compulsory desegregation, but the school district was held not to have engaged in intentional or de jure segregation and therefore could not be

ordered to remedy the de facto racial imbalance that existed. 598 F.2d at 715. The court then addressed the question whether the district's voluntary plan itself violated equal protection, id. at 717, holding that it did not, id. at 718-19.
[17] As I will discuss below, the District voluntarily adopted its first mandatory desegregation plan in 1977, in order to forestall legal action by the NAACP and the ACLU, who alleged that the District had acted to further de facto segregation.
[18] The logical corollary to this concern about the judiciary's lack of competency is a recognition that public school educators are, in fact, trained in and qualified to assess educational policies and their outcomes.
[19] Indeed, as I will argue below, a fundamental difference between the university and the public school settings is that public schools generally do not "select" their students at all. Rather, they are obliged to educate all students in the relevant district.
[20] In an oft-quoted sentence, the Court described the analysis as follows:
In determining whether race-conscious remedies are appropriate, we look to several factors, including the necessity for the relief and the efficacy of alternative remedies; the flexibility and duration of the relief, including the availability of waiver provisions; the relationship of the numerical goals to the relevant labor market; and the impact of the relief on the rights of third parties.
Paradise, 480 U.S. at 171, 107 S.Ct. 1053.
[21] The same is true of selective admissions to special high school programs, as in Wessmann v. Gittens, 160 F.3d 790, 799-800 (1st Cir.1998) (employing a "true diversity" analysis in the context of competitive admissions to a prestigious examination high school); and Hampton, 102 F.Supp.2d at 380-81 (noting that admissions to magnet schools, unlike basic school assignments, have "vertical effects"). See Brewer, 212 F.3d at 752-53 (distinguishing Wessmann because it was a selective admissions case in which "true diversity" was the compelling interest). I disagree with the majority's reasoning that the District's plan is "necessarily selective" merely because some schools are oversubscribed or more popular. See maj. op. at 979-80. Under this logic, assignment between two first-grade classrooms in a single school — classrooms that are equivalent but for the popularity of the teacher — could be considered "selective."
[22] I use the term "quota" here, as I believe the Court did in Grutter, 539 U.S. at 335, 123 S.Ct. 2325, to mean "a fixed number or percentage of minority group members who may be admitted into some activity or institution" — not to mean, more generally, "a proportional part." Webster's Third New Int'l Dictionary 1868 (unabridged ed.1993). Quotas, as I understand them, are not at issue here because no student is preferentially admitted to, or turned away from, the Seattle public high schools. Thus, the District does not run afoul of this aspect of the Court's narrow-tailoring analysis.
The majority seizes upon the more general sense of the word "quota" — as meaning "proportion" — and argues that "racial balancing" is per se unconstitutional. See maj. op. at 986-87. The cited cases do not support the majority's sweeping statements. First, the Court in Croson held that a minority set aside was prohibited because the government could not prove that past discrimination provided a compelling reason for the program, not because "racial balancing" as a mechanism for achieving a compelling state interest would necessarily be inconsistent with the Fourteenth Amendment. Second, states are prohibited from making race the predominant factor in drawing legislative districts because of the impermissibility of racial stereotyping (that is, using race as a proxy for political characteristics), not because any consideration of a district's racial proportions is per se improper. See Bush v. Vera, 517 U.S. 952, 968, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996) (plurality); see also id. at 958, 116 S.Ct. 1941 (noting that redistricting may be performed with "consciousness of race"). These cases do not establish that the District is per se prohibited from linking its assignment practices to the racial make-up of its student enrollment, especially where student choices, not fixed proportions, are the principal determinant of student assignments. I simply cannot agree that we have reached the majority's promised land: Our governments, schools, and courts may yet be forced, by compelling reasons, to acknowledge that race exists in America. See Grutter, 539 U.S. at 333, 123 S.Ct. 2325 (noting that, in our society, "race unfortunately still matters").
[23] Students are selected by merit into at least one District program (which carries a corresponding school assignment), but not into any District school. Those who test in the top 2 percent of their grade levels are offered

admission to the Advanced Placement Program for academically talented students. Selection for that program is not at issue in this case.
[24] Of course, I agree with the majority that the government must offer its benefits on equal terms, regardless of race. See maj. op. at 987-89. But the governmental benefit at issue here is a high school education, not free student choice about school assignments. Indeed, the District could devise a permissible assignment system that is devoid of student choice among high schools. Nonetheless, the District has opted to offer some choices to families — not as an abstract benefit, but rather as an educational policy that interacts with and is necessarily constrained by other District policies, including the District's diversity and integration goals.
[25] Justice Powell noted:
Respondent's position is wholly dissimilar to that of a pupil bused from his neighborhood school to a comparable school in another neighborhood in compliance with a desegregation decree. Petitioner did not arrange for respondent to attend a different medical school in order to desegregate Davis Medical School; instead, it denied him admission and may have deprived him altogether of a medical education.
Bakke, 438 U.S. at 301 n. 39, 98 S.Ct. 2733.
[26] The majority's view is that diversity is an all-or-nothing proposition and that it is improper to try to achieve racial diversity without simultaneously trying to achieve every other conceivable type of diversity (e.g., socioeconomic, religious, or linguistic). See maj. op. at 971-72. I disagree. The District's interest is in the socialization benefits that come from racial diversity in particular. The narrow tailoring inquiry is not concerned with how a different compelling interest might lead to similar benefits, but rather asks whether race-neutral means are effective in achieving the racerelated compelling interest at issue.
[27] The history that follows comes principally from two documents in the district court record. One is a paper entitled, "The History of Desegregation in Seattle Public Schools, 1954-1981," which was prepared by the District's desegregation planners. The other is the "Findings and Conclusions" adopted by the Board in support of the current Plan.
[28] South and southeast area high schools Franklin and Cleveland would experience similar enrollment changes in the 1960's and the 1970's, with minority enrollment at Franklin reaching 78 percent in 1977.
[29] For example, the District's History of Desegregation reports that the Seattle Plan was extremely confusing, required mandatory busing of non-white students in disproportionate numbers, made facilities and enrollment planning difficult, and contributed to "white flight" from the city schools.
[30] Indeed, the District implemented the school assignment Plan as part of a comprehensive plan to improve and equalize the attractiveness of all the high schools, which included a weighted funding formula, a facilities plan, and a new teacher contract that would make teacher transfers easier.
[31] Originally, schools that deviated by more than 10 percent were considered "imbalanced." For the 2000-2001 school year, the trigger was increased to 15 percent, softening the effect of the tiebreaker.
[32] A fourth tiebreaker, a random lottery, is seldom used because distance is calculated to 1/100th of a mile.
[33] "Today choice is a popular way to reform American education...." Wendy Parker, The Color of Choice: Race and Charter Schools, 75 Tul. L.Rev. 563, 564 (2001).
[34] Native American students are by far the smallest group and are the only group spread evenly between the two halves of the city.
[35] Indeed, later in the opinion, the Court noted that universities in states with laws against "racial preferences" were experimenting with "a wide variety of alternative approaches." Grutter, 539 U.S. at 342, 123 S.Ct. 2325. Yet the Court did not require the university to have analyzed fully and rejected each of these alternatives; instead, it noted that

universities in states without such laws should monitor and "draw on the most promising aspects of these race-neutral alternatives as they develop." Id. (emphasis added).
[36] The majority also notes the Urban League's suggestion that the District improve and better market its specialty programs, especially at racially concentrated schools. In fact, the District demonstrated that it is striving to improve its programming in a manner intended to make all schools equally attractive, thereby reducing or eliminating its dependence on the integration tiebreaker; it has installed new principals, constructed new buildings, undertaken major renovations, introduced an International Baccalaureate program, and introduced an information technology program linked with community colleges, among other things. Similar steps taken at Ballard and Nathan Hale High Schools led to their recent turn-arounds in popularity.
[37] The majority interprets Grutter to demand that every school consider a pure lottery unless, but only unless, such a lottery would sacrifice the academic quality or diversity of the student body. See maj. op. at 971. This narrow reading does not fit a context, like this one, in which the school's mission is not to fashion an academically exceptional student body. Instead, the more appropriate principle to draw from Grutter is that schools need not consider alternatives that would do violence to the values central to their particular educational missions — here, choice and parental involvement.
[38] We have held that a local government's continuing efforts to combine race-neutral measures with a minority setaside program are "one factor suggesting that [a set-aside] plan is narrowly tailored." Coral, 941 F.2d at 923; Associated Gen. Contractors, 950 F.2d at 1417 (citing Coral). See supra pp. 1002-1003, 1004 & n. 30, 1008-1009 n. 36 (discussing the District's many race-neutral efforts to promote integrated schools).
[39] To reiterate, in this context the District's relevant goals are for regular intergroup contact to occur and for students not to feel isolated or tokenized.
[40] For the 2000-01 school year, roughly 350 students received "mandatory" assignments, meaning that their assigned school was not one of their choices. Roughly 100 of these students had listed only one choice and another hundred had listed only two choices. Of the roughly 300 students affected by the integration tiebreaker, only 84 were given "mandatory" assignments. Of these, 29 were ultimately assigned to the same school they would have been attending without the tiebreaker, and 55 received assignments affected by the tiebreaker.
[41] Like the majority, maj. op. at 976 n. 32, I believe that this annual review, combined with the fact that the tiebreaker operates only until a school comes into balance, satisfies the durational requirement of narrow tailoring. See Grutter, 539 U.S. at 342-43, 123 S.Ct. 2325; Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 238, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (holding that narrow tailoring requires that a program be limited in scope and duration "such that it will not last longer than the discriminatory effects it is designed to eliminate" (internal quotation marks omitted)).
[42] Subject to federal statutory and constitutional requirements, structuring public education has long been within the control of the states, as part of their traditional police powers. See Barbier v. Connolly, 113 U.S. 27, 31-32, 5 S.Ct. 357, 28 L.Ed. 923 (1884) (describing the states' traditional police powers).
[43] The District has disputed Plaintiff's assertion of significant differences in objective quality among the 10 high schools. Before granting summary judgment to Plaintiff, the majority must accept the District's version of the facts. See Simo v. Union of Needletrades, Indus. & Textile Employees, 322 F.3d 602, 609 (9th Cir.2003) (stating that, on summary judgment, facts are to be viewed in the light most favorable to the nonmoving party). If this factual issue were material, summary judgment would not be proper. Id. at 610.

 
 395 F.3d 1168 (2005)
PARENTS INVOLVED IN COMMUNITY SCHOOLS, a Washington nonprofit corporation, Plaintiff-counter-defendant — Appellant,
v. SEATTLE SCHOOL DISTRICT, NO. 1, a political subdivision of the State
of Washington; Joseph Olchefske, in his official capacity as superintendent; Barbara Schaad-Lamphere, in her official capacity as President of the Board of Directors of Seattle Public Schools; Donald
Neilson, in his official capacity as Vice President of the Board of Directors of Seattle Public Schools; Steven. Brown; Jan Kumasaka; Michael Preston; Nancy Waldman, in their official capacities as members of the board of Directors, Defendants-counter-claimants — Appellees.
No. 01-35450.
United States Court of Appeals, Ninth Circuit.
February 1, 2005.
Daniel B. Ritter, Esq., and Harry James Franklyn Korrell, III, Esq., Davis, Wright & Tremaine, Seattle, WA, for Plaintiff-counter-defendant-Appellant.
Michael Madden, Esq., Bennett, Bigelow & Leedom, P.S., Mark S. Green, AAG, Seattle, WA, for Defendants-counter-claimants-Appellees.
ORDER
SCHROEDER, Chief Judge.
Upon the vote of a majority of nonrecused regular active judges of this court[1], it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The threejudge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court.
[1] Judges McKeown and Gould are recused.

 
 Parents Involved in Community Schools v. Seattle School..., 547 U.S. 1177 (2006)

126 S.Ct. 2351 Supreme Court of the United States PARENTS INVOLVED IN COMMUNITY
SCHOOLS, petitioner, v.
SEATTLE SCHOOL DISTRICT NO. 1, et al. No. 05-908. | June 5, 2006.
Case below, 426 F.3d 1162.
Opinion

Petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit granted. Case to be argued in tandem with Meredith v. Jefferson County Bd. of Educ., infra.
Parallel Citations
126 S.Ct. 2351 (Mem), 165 L.Ed.2d 277, 74 USLW 3673, 74 USLW 3425, 74 USLW 3676, 75 USLW 3018, 209 Ed. Law Rep. 31
	  

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