Parents Involved in Community Schools v. Seattle School District, No. 1

Volume 1 of 2

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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- No. 01-35450

LAMPHERE, in her official capacity

as President of the Board of  D.C. No.

CV-00-01205-BJR

Directors of Seattle Public

OPINION

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.



Appeal from the United States District Court

for the Western District of Washington

Barbara Jacobs Rothstein, District Judge, Presiding

14653

14654 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

Argued and Submitted En Banc

June 21, 2005—San Francisco, California

Filed October 20, 2005

Before: Mary M. Schroeder, Chief Judge, Harry Pregerson,

Alex Kozinski, Andrew J. Kleinfeld, Michael Daly Hawkins,

William A. Fletcher, Raymond C. Fisher,

Richard C. Tallman, Johnnie B. Rawlinson,

Consuelo M. Callahan and Carlos T. Bea, Circuit Judges.

Opinion by Judge Fisher;

Concurrence by Judge Kozinski;

Dissent by Judge Bea

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14659

COUNSEL

Harry J.F. Korrell (argued) and Daniel B. Ritter, Davis

Wright Tremaine LLP, Seattle, Washington, for the plaintiff-

counter-defendant/appellant.

Michael Madden (argued) and Carol Sue Janes, Bennett Bige-

low & Leedom, P.S., Seattle, Washington, and Mark S.

Green, Office of the General Counsel, Seattle School District

No. 1, Seattle, Washington, for the defendants-counter-

claimants/appellees.

Sharon L. Browne, Pacific Legal Foundation, Sacramento,

California, and Russell C. Brooks, Pacific Legal Foundation,

Bellevue, Washington, for amici curiae Pacific Legal Founda-

tion, 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, Wash-

ington, for amicus curiae American Civil Liberties Union in

support of defendants-counter-claimants/appellees.

OPINION

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 Consti-

tution’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.

14660 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

Bollinger, 539 U.S. 306 (2003), and Gratz v. Bollinger, 539

U.S. 244 (2003), and the Court’s directive that “[c]ontext mat-

ters when reviewing race-based governmental action under

the Equal Protection Clause.” Grutter, 539 U.S. at 327. 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. Background2

A. Seattle Public Schools: A Historical Perspective

Seattle’s historical struggle with the problem of racial isola-

tion in its public school system provides the context for the

District’s implementation of the current challenged assign-

ment plan. Seattle is a diverse community. Approximately 70

percent of its residents are white, and 30 percent are non-

white. Seattle public school enrollment breaks down nearly

inversely, with approximately 40 percent white and 60 per-

cent nonwhite students. A majority of the District’s white stu-

dents 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 African-American students, 74 percent of all Asian-

American students, 65 percent of all Latino students and 51

1

The terms “racial diversity,” “racial concentration” and “racial isola-

tion” have been used by the District to encompass racial and ethnic diver-

sity, 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 Wash-

ington Supreme Court Opinion, see Parents Involved in Cmty. Schs. v.

Seattle Sch. Dist. No. 1, 72 P.3d 151 (Wash. 2003) (“Parents IV”).

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14661

percent of all Native-American students, live south of down-

town.

The District operates 10 four-year public high schools.

Four are located north of downtown — Ballard, Ingraham,

Nathan Hale and Roosevelt; five are located south of down-

town — Chief Sealth, Cleveland, Franklin, Garfield and Rai-

nier Beach; one is located west of downtown — West 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 repli-

cated Seattle’s segregated housing patterns. Since the 1960s,

while courts around the country 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 ten-

sions in the de facto segregated schools, in various ways. In

the early 1960s, the District first experimented with small-

scale exchange programs in which handfuls of students

switched high schools for five-week periods. In 1963, expand-

ing on this concept, the District implemented a “Voluntary

3

The history that follows comes principally from two documents in the

district court record. One is a report entitled, “The History of Desegrega-

tion in Seattle Public Schools, 1954-1981,” which was prepared by the

District’s desegregation planners. The other is the “Findings and Conclu-

sions” adopted by the Board in support of the current assignment plan.

(They are cited as History of Desegregation and Findings and Conclu-

sions, respectively.)

14662 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

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 imple-

mented. The District also took steps to desegregate Garfield

High School by changing its educational program, improving

its facilities and eliminating “special transfers” that had previ-

ously 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 volun-

tary 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 enroll-

ment.

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 Depart-

ment of Education’s Office of Civil Rights, alleging that Seat-

tle’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 threat-

ened to file additional actions if the District failed to adopt a

mandatory desegregation plan. When the District agreed to

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14663

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, 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 desegregation. Mandatory high school assignments

were linked to elementary school assignments, although vari-

ous voluntary transfer options were available. With the Seattle

Plan,

Seattle became the first major city to adopt a com-

prehensive desegregation program voluntarily with-

out 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 Seat-

tle 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 imple-

mentation, but the Supreme Court ultimately declared the ini-

tiative unconstitutional. Washington v. Seattle Sch. Dist. No.

1, 458 U.S. 457, 470 (1982).

The Seattle Plan furthered the District’s school desegrega-

tion goals, but its operation was unsatisfactory in other ways.4

In 1988, a decade after its implementation, the District aban-

doned 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

4

For example, the Seattle Plan was confusing, required mandatory bus-

ing 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.

14664 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

desegregation guidelines, and families were permitted to rank

schools within the relevant cluster, increasing the predictabil-

ity of assignments. Because of Seattle’s housing patterns, the

District’s planners explained that “it was impossible to fash-

ion 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 Dis-

trict’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 goals —

with 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 mar-

ketplace model. The District sought to maintain its commit-

ment to racially integrated education by establishing diversity

goals while moving away from the rigid desegregation guide-

lines and mandatory assignments prevalent in the 1970s and

1980s.

The Board adopted the current open choice plan (the

“Plan”) for the 1998-99 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

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14665

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 chang-

ing 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 — Bal-

lard, Nathan Hale and Roosevelt — and two of the southern

schools — Garfield and Franklin — are highly desirable and

oversubscribed, meaning that more students wish to attend

those schools than capacity allows.5 The magnitude of the

5

The current popularity of Ballard High School is illustrative of the con-

stantly 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 prin-

cipal. 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 pre-

dominantly 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.

14666 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

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 tie-

breakers, 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 imbal-

anced — meaning 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 whole — and if the

sibling preference does not bring the oversubscribed high

school within plus or minus 15 percent of the District’s demo-

graphics, the race-based tiebreaker 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 pop-

ulation) 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 popula-

tion) 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 per-

cent, softening the effect of the tiebreaker.6 For that year, the

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

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14667

race-based tiebreaker was used in assigning entering ninth

grade students only to three oversubscribed schools — Bal-

lard, 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 non-

white students. For example, in the 2000-01 school year —

when the trigger point was still plus or minus 10 percent —

89 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 a whole.

That is, of the approximately 3,000 incoming students enter-

ing Seattle high schools in the 2000-01 school year, approxi-

mately 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

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 tie-

breaker from plus or minus 10 percent to plus or minus 15 percent, how-

ever, had the effect of rendering Roosevelt High School neutral for

desegregation purposes. Thus, the tiebreaker did not factor into assign-

ments to Roosevelt High School in the 2001-02 school year.

14668 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

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 popula-

tions of the 2000-01 ninth grade class at Franklin would have

been 79.2 percent, at Hale 30.5 percent, at Ballard 33 percent

and at Roosevelt 41.1 percent. Using the race-based tie-

breaker, 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 WITH PERCENT

TIEBREAKER TIEBREAKER Difference

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 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

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14669

assign nearly all the students in the District, a lottery is virtu-

ally 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 Amendment9 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”). Par-

ents 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 constru-

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 pro-

gram or activity receiving Federal financial assistance.”). Because “dis-

crimination 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.

14670 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

ing 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 decision, holding

that the open choice plan did not violate Washington law.

Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 72

P.3d 151, 166 (Wash. 2003) (“Parents IV”) (holding that

Washington law “does not prohibit the Seattle School Dis-

trict’s open choice plan tie breaker based upon race so long

as it remains neutral on race and ethnicity and does not pro-

mote 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 com-

pelling 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

[1] We review racial classifications under the strict scrutiny

standard, which requires that the policy in question be nar-

rowly tailored to achieve a compelling state interest. See

Johnson v. California, 125 S. Ct. 1141, 1146 (2005); Grutter,

539 U.S. at 326; Adarand Constructors, Inc. v. Pena, 515

U.S. 200, 226-27 (1995).12 The strict scrutiny standard is not

11

We review the district court’s resolution of cross-motions for sum-

mary 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

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14671

“strict in theory, but fatal in fact.” Adarand, 515 U.S. at 237

(internal quotation marks omitted). “Although all governmen-

tal uses of race are subject to strict scrutiny, not all are invali-

dated by it.” Grutter, 539 U.S. at 326-27. We employ strict

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 14712 and 14716.

Recognizing the importance of context in the Supreme Court’s equal pro-

tection jurisprudence, Judge Kozinski proposes “robust and realistic”

rational basis rather than strict scrutiny review. Id. at 4. 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, 125 S. Ct.

1141 (2005), rejected the argument that a California Department of Cor-

rections (“CDC”) policy in which all inmates were segregated by race

should be subjected to relaxed scrutiny because the policy “neither bene-

fits 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 seg-

regated inmates on the basis of race, whereas the District’s use of race is

aimed at achieving the opposite result — attaining and maintaining inte-

grated schools. Kozinski, J., concurring, infra. at 14712. Nevertheless, like

the First and Sixth Circuits — the 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

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).

14672 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

scrutiny to “smoke out” impermissible uses of race by ensur-

ing that the government is pursuing a goal important enough

to warrant use of a highly suspect tool. Id. at 327 (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 mat-

ters when reviewing race-based governmental action under

the Equal Protection Clause.” Grutter, 539 U.S. at 326.

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. 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 (1986), it is

critical to identify precisely the governmental interests — the

ends — to which the government’s use of race must fit. See

United States v. Paradise, 480 U.S. 149, 171 (1987) (stating

that, in order to determine whether an order was narrowly tai-

lored, “we must examine the purposes the order was intended

to serve”).

[2] 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 eth-

nically diverse secondary schools, its decisions regarding

selective admissions to institutions of higher learning demon-

strate 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 promo-

tion of the specific educational and societal benefits that flow

from diversity. See Grutter, 539 U.S. at 330 (noting that the

law school’s concept of critical mass must be “defined by ref-

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14673

erence 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; and (2) the greater societal legiti-

macy 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. The Court also mentioned

the role of diversity in challenging stereotypes. Id. at 330,

333. The Court largely deferred to the law school’s educa-

tional judgment not only in determining that diversity would

produce these benefits, but also in determining that these ben-

efits were critical to the school’s educational mission. Id. at

328-33.13

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

13

The Court also heeded the judgment of amici curiae — including edu-

cators, business leaders and the military — that the educational benefits

that flow from diversity constitute a compelling interest. Grutter, 539 U.S.

at 330 (“The Law School’s claim of a compelling interest is further bol-

stered 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 view-

points.”); id. at 331 (“[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 essen-

tial to the military’s ability to fulfill its principle mission to provide

national security.’ ”).

14674 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

races. Diversity is thus a valuable resource for teach-

ing 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 understand-

ing, 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 edu-

cationally 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 iso-

lated schools.

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14675

1. Educational and Social Benefits that Flow from

Diversity

[3] The District has established that racial diversity pro-

duces 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

skills — the ability to both understand and challenge views

which are different from their own.”

[4] Second, the District demonstrated the socialization and

citizenship advantages of racially diverse schools. School

officials, relying on their experience as teachers and adminis-

trators, 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 race-relations, the reduction of prej-

udicial attitudes, and the achievement of a more . . . 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 integra-

tion 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.

14

Academic research has shown that intergroup contact reduces preju-

dice and supports the values of citizenship. See Derek Black, Comment,

The Case for the New Compelling Government Interest: Improving Educa-

tional 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’ citi-

zenship values and their ability to succeed in a racially diverse society in

their adult lives).

14676 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

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 bene-

fits of diversity are similar to those of a law school as articu-

lated in Grutter. The contextual differences between public

high schools and universities, however, make the District’s

interests compelling in a similar but also significantly differ-

ent manner. See Grutter, 539 U.S. at 330 (noting that the

compelling state interest in diversity is judged in relation to

the educational benefits that it seeks to produce).

[5] The Supreme Court in Grutter noted the importance of

higher education in “preparing students for work and citizen-

ship.” 539 U.S. at 331. For a number of reasons, public sec-

ondary 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

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 — (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 tech-

nologically oriented and a highly competitive economy comprised of peo-

ple from many different racial and ethnic backgrounds.” 20 U.S.C.

§ 7231(a)(4) (emphasis added).

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14677

a democratic system of government, and as the primary vehi-

cle for transmitting the values on which our society rests.”

457 U.S. 202, 221 (1982) (internal quotation marks and cita-

tions omitted); see Bethel Sch. Dist. No. 403 v. Fraser, 478

U.S. 675, 683 (1986) (stating that the inculcation of civic val-

ues is “truly the work of the schools”) (internal quotation

marks omitted)); Plyler, 457 U.S. at 221-23 (noting that pub-

lic education perpetuates the political system and the eco-

nomic and social advancement of citizens and that “education

has a fundamental role in maintaining the fabric of our soci-

ety”); Ambach v. Norwick, 441 U.S. 68, 76-77 (1979) (observ-

ing that public schools transmit to children “the values on

which our society rests,” including “fundamental values nec-

essary to the maintenance of a democratic political system”);

Brown v. Bd. of Educ., 347 U.S. 483, 493 (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 profes-

sional 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 citizen-

ship.” Parents IV, 72 P.3d at 158.

[6] Second, although one hopes that all students who gradu-

ate 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

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.

14678 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

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, educat-

ing 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.

[7] 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 compel-

ling at younger ages.”); Comfort v. Lynn School Committee,

283 F. Supp. 2d 328, 356 (D. Mass. 2003) (noting expert testi-

mony 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 —

for the very premise of Grutter’s diversity rationale is that

students enter higher education having had too few opportuni-

ties in early grades to study and learn alongside peers from

other racial groups.”) (citing Grutter, 539 U.S. at 333)

(emphasis added)).

The dissent insists that racial diversity in a public high

school is not a compelling interest, arguing that Grutter

endorsed a law school’s compelling interest in diversity only

in some broader or more holistic sense. Bea, J., dissenting,

infra. at 14726-27. To attain this broader interest, the dissent

contends, the District may only consider race along with other

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14679

attributes such as socioeconomic status, ability to speak multi-

ple 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 (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).

[8] In short, the District has demonstrated that it has a com-

pelling 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 second-

ary school context.

2. Avoiding the Harms Resulting from Racially

Concentrated or Isolated Schools

[9] The District’s interest in achieving the affirmative bene-

fits 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 educa-

tional 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.

14674. 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 teach-

ers and fewer advanced courses — “[w]ith few exceptions,

separate schools are still unequal schools.” See Erica Franken-

berg et al., A Multiracial Society with Segregated Schools:

Are We Losing the Dream? 11 (The Civil Rights Project, Har-

vard Univ. Jan. 2003), at http://www.civilrightsproject.

harvard.edu/research/reseg03/AreWeLosingtheDream.pdf)

(hereinafter “Civil Rights Project”) (last visited October 11,

14680 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

2005) (cited in Grutter, 539 U.S. at 345 (Ginsburg, J., concur-

ring)).

[10] In Seattle, the threat of having to attend a racially con-

centrated or isolated school is not a theoretical or imagined prob-

lem.17 As the district court found, the District “established that

housing patterns in Seattle continue to be racially concentrat-

ed,” and would result in racially concentrated or isolated

schools if school assignments were based solely on a stu-

dent’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 segrega-

tion projected into the school system.”) (Boudin, C.J., concur-

ring). Although Parents make much of the fact that “Seattle

has never operated a 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 seg-

regated 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.

[11] 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] con-

tinue to be as compelling today as they were in the days of the

17

The prospect of children across the nation being required to attend

racially concentrated or isolated schools is a crisis that school boards, dis-

tricts, 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 desegre-

gation of black students, which increased continuously from the 1950s to

the late 1980s, has now receded to levels not seen in three decades.”).

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14681

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 preven-

tion of de facto segregation as a compelling interest. See

Comfort, 418 F.3d at 14 (holding that the “negative conse-

quences of racial isolation that Lynn seeks to avoid and the

benefits of diversity that it hopes to achieve” constituted com-

pelling 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 Zer-

vos 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, sur-

vived 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

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 excep-

tion of Andrew Jackson, did the schools face an imminent threat of litiga-

tion to compel desegregation. Like the District, they may have been

vulnerable to litigation in decades past, but the districts’ voluntary deseg-

regation 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 vulnerabil-

ity to litigation had been “headed off by the very Plan in contention here”).

14682 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

school districts have a compelling interest in ameliorating

real, identifiable de facto racial segregation.

[12] The dissent, however, contends first that the District is

not “desegregating” but rather is engaged in racial balancing.

Bea, J., dissenting, infra. at 14718. 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., dissent-

ing, infra. at 14738-39, n.17. Thus, without a court finding of

de jure segregation the elected school board members of the

District may not take voluntary, affirmative steps towards cre-

ating a racially diverse student body. We disagree. The fact

that de jure segregation is particularly offensive to our Consti-

tution does not diminish the real harms of separation of the

races by other means. “Segregation of white and colored chil-

dren in public schools has a detrimental effect upon the col-

ored children. The impact is greater when it has the sanction

of law. . . .” Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954)

(emphasis added). The benefits that flow from integration (or

desegregation) exist whether or not a state actor was responsi-

ble for the earlier racial isolation. Brown’s statement that “in

the field of public education . . . [s]eparate educational facili-

ties are inherently unequal” retains its validity today. Id. at

495. The District is entitled to seek the benefits of racial inte-

gration and avoid the harms of segregation even in the

absence of a court order deeming it a violator of the U.S. Con-

stitution.

[13] 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.,

19

The dissent correctly notes that these decisions were rendered in the

context of de jure segregation. But their import is also significantly com-

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14683

402 U.S. 1, 16 (1971) (stating that school authorities “are tra-

ditionally charged with broad power to formulate and imple-

ment 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 stu-

dents reflecting the proportion for the district as a whole”);

N.C. State Bd. of Educ. v. Swann, 402 U.S. 43, 45 (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 require-

ments.”); Bustop, Inc. v. Bd. of Educ. of Los Angeles, 439

U.S. 1380, 1383 (1978) (denying a request to stay implemen-

tation 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 (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 (holding

unconstitutional the state initiative that blocked the Seattle

School District’s use of mandatory busing to remedy de facto

segregation).

[14] In sum, we hold that the District’s interests in obtain-

ing 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.

pelling 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 (emphasis added).

14684 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

C. Narrow Tailoring

We must next determine whether the District’s use of the

race-based tiebreaker is narrowly tailored to achieve its com-

pelling interests. See Grutter, 539 U.S. at 333. 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 (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, sub-

stantially guides our inquiry. See Grutter, 539 U.S. at 334

(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”) (inter-

nal quotation marks omitted).

In Gratz, the Court held unconstitutional the University of

Michigan’s undergraduate admissions program, which auto-

matically assigned 20 points on the admissions scale to an

applicant from an underrepresented racial or ethnic minority

group. 539 U.S. at 255, 272. 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 vari-

ables in an individual’s application. 539 U.S. at 315-16, 340.

The law school’s policy also attempted to ensure that a “criti-

cal mass” of underrepresented minority students would be

admitted in order to realize the benefits of a diverse student

body.20 Id. at 316.

[15] In its analysis, the Court identified five hallmarks of

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 (internal

quotation marks omitted).

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14685

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 sig-

nificant 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 nec-

essarily according them the same weight.” Grutter, 539 U.S.

at 337 (emphasis added) (internal quotation marks omitted);

see Adarand, 515 U.S. at 211 (“The injury in cases of this

kind is that a discriminatory classification prevent[s] the

plaintiff from competing on an equal footing.”) (emphasis

added) (internal quotation marks omitted). 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.

14686 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

Bakke, 438 U.S. 265, 298 (1978) (Powell, J., concurring)

(“preferential programs may only reinforce common stereo-

types holding that certain groups are unable to achieve suc-

cess without special protection based on a factor having no

relationship to individual worth”); Croson, 488 U.S. at 493

(“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; see Gratz, 539

U.S. at 272 (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 underrepre-

sented minority applicant”) (emphasis added). This focus on

an applicant’s qualifications — whether these qualifications

are such things as an applicant’s test scores, grades, artistic or

athletic ability, musical talent or life experience — is not

applicable when there is no competition or consideration of

qualifications at issue.

[16] All of Seattle’s high school students must and will be

placed in a Seattle public school.21 Students’ relative qualifi-

cations are irrelevant because regardless of their academic

achievement, sports or artistic ability, musical talent or life

21

Parents do not claim that their children have a right to attend a particu-

lar school, nor could they. See Bustop Inc., 439 U.S. at 1383 (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.

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14687

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 — of substituting racial preference

for qualification-based competition — 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 ‘cer-

tain groups are unable to achieve success without special pro-

tection.’ ”) (quoting Bakke, 438 U.S. at 298).

b. Differences in compelling interests

The Court’s requirement of individualized, holistic review

in Grutter is also more 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. 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. To this

end, the law school’s policy made clear that “[t]here are many

possible bases for diversity admissions, and provide[d] exam-

ples of admittees who have lived or traveled widely abroad,

are fluent in several languages, have overcome personal

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 alto-

gether of a medical education.

438 U.S. at 301 n.39.

14688 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

adversity and family hardship, have exceptional records of

extensive community service, and had successful careers in

other fields.” Id. (internal quotation marks and citations omit-

ted). These multiple bases for diversity ensure the “classroom

discussion is livelier, more spirited, and simply more enlight-

ening and interesting when the students have the greatest pos-

sible variety of backgrounds.” Id. at 330 (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 experi-

ences 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; 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 understand-

ing.23 For example, Eric Benson, the principal of Nathan Hale

High School, one of the District’s most popular schools, testi-

fied that as a result of racial diversity in the classroom, “stu-

dents 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

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 class-

room . . . .” Bea, J., dissenting, infra. at 14737. This belittles the substan-

tial role of high school classroom discussions in contributing to the

educational development of our young citizens. “The [high school] class-

room 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 (1969)

(internal quotation marks omitted).

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14689

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 — cultivating a group of

national leaders. For example, extensive travel, fluency in for-

eign languages, extensive community service and successful

careers in other fields demonstrate that a candidate is some-

how exceptional or out of the ordinary. cf. Gratz, 539 U.S. at

273 (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 Monet or Picasso,

the applicant would receive, at most, five points” as opposed

to 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 leader-

ship potential.

[17] The District also has a second compelling interest that

is absent from the university context — ensuring that its

school assignments do not replicate Seattle’s segregated hous-

ing patterns. The holistic review necessary to achieve view-

point 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 concen-

tration or racial isolation. Because race itself is the relevant

consideration when attempting to ameliorate de facto segrega-

tion, 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 — “[t]he only

relevant criterion, then, is a student’s race; individualized con-

sideration beyond that is irrelevant to the compelling inter-

est”); Brewer v. W. Irondequoit Cent. Sch. Dist., 212 F.3d at

752 (“If reducing racial isolation is — standing alone — a

constitutionally permissible goal, . . . then there is no more

14690 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

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 tai-

lored, a district need not consider each student in a individual-

ized, holistic manner.24

The dissent insists that absent such individualized consider-

ation, 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 14740.

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 stu-

dents’ 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

24

The dissent calculates that individualized consideration would be

administratively feasible because only 300 students would need to be con-

sidered holistically. Though it is true that 300 students were subject to the

race-based tiebreaker, it does not follow that only those 300 would require

individualized consideration. Under the dissent’s view of the way the Dis-

trict 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 (2000) (“Under the Fourteenth

Amendment, a State may rely on age as a proxy for other qualities, abili-

ties, 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.”)

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14691

geographical proximity. We must not forget that “race unfor-

tunately still matters,” Grutter, 539 U.S. at 333, and it is race

that is the relevant consideration here.

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 tailor-

ing 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. Although the law

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 Dis-

trict’s schools. However, socioeconomic status does nothing more than

substitute a number from a family’s tax return for race. There is no holis-

tic, individualized consideration under such an approach.

27

Much like the rationale underlying the Court’s requirement of individ-

ualized, holistic review, the rationale underlying the Court’s prohibition of

quotas does not apply to the race-based tiebreaker. In paradigmatic affir-

mative action settings — employment and admissions to institutions of

higher learning — the Court disapproves of quotas because they are

viewed as insulating minority candidates from competition with nonmi-

nority candidates for scarce government resources usually awarded on the

basis of an applicant’s qualifications — jobs, promotions or places in a

law school class. See Bakke, 438 U.S. at 317 (opinion of Powell, J.). This

is objectionable because no “matter how strong their qualifications,” non-

minority candidates are never afforded the chance to compete with appli-

cants from the preferred groups for the set-aside. Id. at 319. 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 — of substituting racial preference for qualification-based competi-

tion — are absent here.

14692 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

school’s plan did not seek to admit a set number or percentage

of minority students, during the height of the admission’s sea-

son, the law school would consult “daily reports” that kept

track of the racial composition of the incoming class. Id. at

318. The Court held that this attention to numbers did not

transform the law school plan into a quota, but instead dem-

onstrated that the law school sought to enroll a critical mass

of minority students in order “to realize the educational bene-

fits 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 stu-

dents based on their race, but instead it seeks to enroll a criti-

cal 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 applied to that

school is exhausted, no further action is taken, even if the 15

percent variance has not been satisfied. That is, if the appli-

cant 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.

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 (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.

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14693

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 non-

white 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 Enroll-

ment Planning, Technical Support and Demographics, testi-

fied, “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 some-

times we don’t know.”

b. Critical mass

Within this flexible system, where parental and student

choices drive the assignments to particular schools, the Dis-

trict seeks to enroll and maintain a relatively stable critical

mass of white and nonwhite students in each of its oversub-

scribed high schools in order to achieve its compelling inter-

est in racial diversity and to prevent the assignments from

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 per-

cent, 13.6 percent and 13.8 percent. Grutter, 539 U.S. at 389-90 (Ken-

nedy, 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 Roo-

sevelt.

30

Slightly more than 80 percent of all entering ninth grade students were

assigned to their first choice school.

14694 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

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 popula-

tion) and less than 25 percent white students, or when it has

less than 45 percent nonwhite students (i.e., more than 15 per-

cent below the overall 60 percent nonwhite student popula-

tion) 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 educa-

tional 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 demo-

graphics because they believe that the District cannot use race

at all in its assignment process. We have rejected this argu-

ment, however, applying Grutter and Gratz. See supra Part

II.B. Alternatively, Parents contend that the District’s goal of

enrolling between 75 and 45 percent nonwhite students and

between 25 and 55 percent white students in its oversub-

scribed 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 demo-

graphics 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

31

For example, in 1995, 662 (approximately 16 percent) of the 4147 law

school applicants were underrepresented minorities; in 1996, 559 (approx-

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14695

of the tiebreaker to the District’s demographics with a 15 per-

cent plus or minus trigger point, the District adopted a com-

mon 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 composi-

tion 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 main-

tain 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 deseg-

regated by looking to the “population of the district” in ques-

tion. 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 dis-

tricts with desegregation plans use a variance of plus or minus

15 percent or greater); cf. 34 C.F.R. § 280.4(b) (defining “mi-

nority group isolation” as a “condition in which minority

group children constitute more than 50 percent of the enroll-

ment of [a] school”). Given this empirically and time-tested

imately 15 percent) of the 3677 law school applicants were underrepre-

sented minorities; in 1997, 520 (approximately 15 percent) of the 3429

law school applicants were underrepresented minorities. See Grutter, 539

U.S. at 384 (Rehnquist, C.J., dissenting).

14696 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

notion of critical mass in the public high school desegregation

context, it would make little sense to force the District to uti-

lize 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 (“[S]ome attention to numbers, without more,

does not transform a flexible admissions system into a rigid

quota.”) (internal quotation marks and citations omitted).

[18] Accordingly, we conclude that the District’s 15 per-

cent 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 stu-

dents in Seattle’s public high schools.

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 tie-

breaker allows the District to balance students’ and parents’

choices among high schools with its broader compelling inter-

ests — achieving the educational and social benefits of diver-

sity 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,

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14697

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

— 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 “non-

white” 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 move-

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 (1991) (internal citation omitted).

14698 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

ment of students from the north of the city to the south of the

city and vice versa. This white/nonwhite focus is also consis-

tent with the history of public school desegregation measures

throughout the country, as reflected in a current federal regu-

lation defining “[m]inority group isolation” as “a condition in

which minority group children constitute more than 50 per-

cent 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, 539 U.S.

at 316 (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 sub-

group as well.”) (emphasis added).

b. Race-neutral alternatives

In Grutter, the Court explained that narrow tailoring “re-

quire[s] serious, good faith consideration of workable race-

neutral alternatives that will achieve the diversity the univer-

sity seeks.” 539 U.S. at 339 (emphasis added). On the other

hand, “[n]arrow tailoring does not require exhaustion of every

conceivable race-neutral alternative.” Id. Furthermore, 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.

Implicit in the Court’s analysis was a measure of deference

toward the university’s identification of those values.33 See id.

33

The Supreme Court repeatedly has shown deference to school officials

at the intersection between constitutional protections and educational pol-

icy. 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 (directing local

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14699

at 328, 340. Here, the record reflects that the District reason-

ably 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 tie-

breaker. It concluded, however, that this proxy device would

not achieve its compelling interest in achieving racial diver-

sity, and had other adverse effects. Although there was no for-

mal 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 minor-

ity status. Second, for the group of students for whom poverty

would correlate with minority status, the implementation

would have been thwarted by high school students’ under-

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 (1974) (“No single tradition in public education is more

deeply rooted than local control over the operation of schools; local auton-

omy has long been thought essential both to the maintenance of commu-

nity concern and support for public schools and to quality of the

educational process.”); Freeman, 503 U.S. at 490 (“As we have long

observed, ‘local autonomy of school districts is a vital national tradi-

tion.’ ” (quoting Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 410

(1977)); see also Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 683 (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 (1988)). These Supreme Court decisions

suggest that secondary schools occupy a unique position in our constitu-

tional tradition. For this reason, we afford deference to the District’s judg-

ment similar to that which Grutter afforded the university. See Grutter,

539 U.S. at 328-29.

14700 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

standable reluctance to reveal their socioeconomic status to

their peers.

Because racial diversity is a compelling interest, the Dis-

trict may permissibly seek it if it does so in a narrowly tai-

lored 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 for-

mally 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 comprehen-

sive plan seeking to enhance the quality of education in Seat-

tle’s schools by focusing on educational organization, teacher

quality, parent-teacher interaction, raising curricular stan-

dards, substantially broadening the availability of specialized

and magnet programs (which could attract a broader cross-

section of students to undersubscribed schools) and support-

ing extra-curricular development. The plan proposed decreas-

ing 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 oversubscrip-

tion. 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 pat-

terns, by prioritizing a neighborhood/regional school model

where students are assigned to schools close to their homes,

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14701

the Urban League plan did not sufficiently ensure the achieve-

ment 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 Con-

trolled Choice was, [ ] a regional plan; it controlled your

options by using regions or geography.” It was therefore per-

missible 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 lot-

tery 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 over-

subscribed schools, the makeup of this 82 percent, as well as

that of the applicant pool for each school, mirrors the demo-

graphics of the District (60 percent white and 40 percent non-

white). 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 15 percent plus or minus vari-

ance. These assumptions, however, are not supported —

indeed, are undercut — by 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 stu-

dents and the applicant pool for the south area oversubscribed

14702 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

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 — 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, it

need not “exhaust[ ] every conceivable race-neutral alterna-

tive.” Grutter, 539 U.S. at 339. 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 (dismissing the race-neutral alternative of “per-

centage 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 dis-

trict’s approach as a possible model for integration that would

meet the dissent’s criteria. Bea, J., dissenting, infra. at 14750-

51, n.24. Perhaps San Francisco has experienced success

(however that school district defines it) in its multi-variable

plan — 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.

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14703

However, even assuming that San Francisco’s plan is work-

ing, 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 Bran-

deis said it well,

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 sin-

gle courageous State may, if its citizens choose,

serve as a laboratory; and try novel social and eco-

nomic experiments without risk to the rest of the

country.

New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)

(Brandeis, J., dissenting).

[19] In sum, the District made a good faith effort to con-

sider feasible race-neutral alternatives and permissibly

rejected them in favor of a system involving a sibling prefer-

ence, 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 alterna-

tives, including magnet and other special-interest programs,

which it continues to employ, and race-conscious 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

14704 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

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 is self-evident:

When racial diversity is a principal element of the school dis-

trict’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 — operated as a research laboratory — that explicitly

considered race in pursuit of a racially balanced research sam-

ple).

4. Undue Harm

A narrowly tailored plan ensures that no member of any

racial group is unduly harmed. Grutter, 539 U.S. at 341. Par-

ents argue that every student who is denied his or her choice

of schools because of the integration tiebreaker suffers a con-

stitutionally significant burden. We agree with the Supreme

Court of Washington, however, in its assessment that the Dis-

trict’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,

34

The dissent urges, “The way to end discrimination is to stop discrimi-

nating by race.” Bea, J., dissenting, infra. at 14762. 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, structur-

ing 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 (1884) (describing the states’ traditional police powers).

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14705

unlike universities, have a tradition of compulsory assign-

ment. See Bazemore v. Friday, 478 U.S. 385, 408 (1986)

(White, J., concurring) (noting that “school boards customar-

ily have the power to create school attendance areas and oth-

erwise 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 enti-

tled 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.”).

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 prefer-

ence over nonwhite students, and, at other schools, nonwhite

students are given preference over white students. For exam-

ple, 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 tie-

breaker.36

[20] 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 uni-

formly benefit any race or group of individuals to the detri-

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 assign-

ments to Roosevelt High School in the 2001-02 school year.

14706 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

ment of another, the tiebreaker does not unduly harm any

students in the District.

5. Sunset Provision

[21] A narrowly tailored plan must be limited not only in

scope, but also in time. Grutter, 539 U.S. at 342. 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 Dis-

trict’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 con-

stituents. 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 per-

cent 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 incom-

ing ninth grade class.

[22] With respect to the dissent’s concern for a “logical end

point,” Bea, J., dissenting, infra. at 14755, 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. 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 moni-

toring the continued need for the race-based tiebreaker and

terminating its use when that need ends.37 See 539 U.S. at 343.

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 — 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 (Ginsburg, J., concurring).

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14707

III. Conclusion

[23] For the foregoing reasons, we hold that the Plan

adopted by the Seattle School District for high school assign-

ments is constitutional and the use of the race-based tie-

breaker is narrowly tailored to achieve the District’s

compelling interests. Accordingly, we AFFIRM the district

court’s judgment.

AFFIRMED.

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14709

Volume 2 of 2

14710 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

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, nei-

ther 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 dif-

ferent 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

(1954); Strauder v. West Virginia, 100 U.S. 303

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14711

(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 (1995). By contrast to Johnson v. Cali-

fornia, 125 S. Ct. 1141 (2005), the plan does not seg-

regate persons by race. See also Loving v. Virginia,

388 U.S. 1 (1967). Nor does it involve racial quotas.

E.g., Regents of the Univ. of Cal. v. Bakke, 438 U.S.

265 (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

(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. Ken-

tucky, 476 U.S. 79, 85-88 (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 exacer-

bates racial tensions by making race a proxy for political

power. See Shaw v. Reno, 509 U.S. 630, 648 (1993) (“When

a district obviously is created solely to effectuate the per-

14712 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

ceived common interests of one racial group, elected officials

are more likely to believe that their primary obligation is to

represent only the members of that group, rather than their

constituency as a whole.”). Programs seeking to help minori-

ties by giving them preferences in contracting, see, e.g., Ada-

rand, 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 regula-

tions, 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 (1955),

but robust and realistic rational basis review, see, e.g., City of

Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (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

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14713

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 melt-

ing 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, how-

ever, 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 stu-

dents 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 exac-

erbated by the school experience.

It is difficult to deny the importance of teaching children,

during their formative years, how to deal respectfully and col-

legially 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.

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 stu-

dent’s waking hours, nevertheless has a significant impact on

14714 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

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 differ-

ent 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 educa-

tional system—every 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 Amend-

ment 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 necessar-

ily 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 cate-

gorical pronouncements will not be applied without consider-

ation 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 strict—and almost always deadly—scrutiny, 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

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14715

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 con-

tested issue was considered the end of the matter—at least

until the next election when the voters might “throw the ras-

cals 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 com-

plex 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.

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 reposi-

tory of ultimate wisdom. Elected officials, who are much

closer to ground zero than we are—and whose political power

ebbs and flows with the approval of the voters—understand

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

14716 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

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 plan

that gives the American melting pot a healthy stir without

benefitting or burdening any particular group—I 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 per-

haps 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 univer-

sally, 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 par-

1

For a dissenting view, see infra pp. 14731-33.

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14717

ents may choose, or whether their government may choose for

them.2

In the Seattle School District (“District”), some schools are

oversubscribed and in higher demand than others, so the Dis-

trict 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 differentiat-

ing between African-American, Asian-American, Latino,

Native American, or Caucasian students, the tiebreaker classi-

fies 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

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 gov-

ernment programs which later caused grievous harm to society and indi-

viduals. See Adarand Constructors v. Pena, 515 U.S. 200, 226 (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 (1928) (Brandeis, J., dissent-

ing) (“Experience should teach us to be most on our guard to protect lib-

erty 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. 14660 (emphasis

added). There simply is no ethnic tiebreaker.

14718 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

standard of review—improperly labeled “strict scrutiny”—

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., Major-

ity op. at 14660, 14661. As a perfectly understandable rhetori-

cal 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 desegre-

gation 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 (1992).

“[T]he differentiating factor between de jure segregation and

so-called de facto segregation . . . is purpose or intent to seg-

regate.” Keyes v. School Dist. No. 1, 413 U.S. 189, 208 (1973)

(emphasis in original); see Swann v. Charlotte-Mecklenburg

Bd. of Educ., 402 U.S. 1, 17 (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 assign-

ment 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 DICTIO-

4

Remediation of de jure segregation is not at issue here; the parties con-

cede 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.

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14719

NARY (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 resi-

dential makeup.

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 fre-

quent pronouncements that “racial balancing” violates the

Equal Protection Clause. See Grutter v. Bollinger, 539 U.S.

306, 330 (2003) (“[O]utright racial balancing . . . is patently

unconstitutional.”); Freeman, 503 U.S. at 494 (“Racial bal-

ance is not to be achieved for its own sake.”); Regents of the

Univ. of Calif. v. Bakke, 438 U.S. 265, 307 (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 pur-

pose 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 opin-

ion 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 Koz-

inski tries to distinguish past Supreme Court cases involving

racial discrimination by focusing on the effects of the discrim-

ination, rather than the fact of the discrimination.

5

Indeed, the term “de facto segregation” is somewhat of an oxymoron.

That is perhaps why the Supreme Court preceded the term with the quali-

fier “so-called.” See Keyes, 413 U.S. at 208.

6

See Comfort v. Lynn Sch. Comm., 418 F.3d 1, 27 (1st Cir. 2005)

(Boudin, C.J., concurring).

14720 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

This creates for them two categories different from the

effects of the Seattle plan: (1) the effects of other race dis-

crimination 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 indi-

vidual 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.

Also, it is quite accurate to say the Seattle plan does not

“involve racial quotas.”8 The numerical quota is the percent-

age by which the school in question’s racial composition dif-

fers 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 indicated above, how-

7

Id.

8

Concurrence at 14710-11 (citing Comfort, 418 F.3d at 27 (Boudin,

C.J., concurring).

9

See infra pp. 14745-48 (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 rhetori-

cal tool for dressing up one’s own view as objective and impartial, and

therefore, more presentable.

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14721

ever, it certainly has given no such indication.11 But if it does,

one doubts that it will do so based on a “melting pot” meta-

phor.

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 com-

mon 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 gov-

ernmental resources is certainly nothing new in American his-

tory. 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 (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 citi-

zens. 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 classifica-

tions are subject to “strict scrutiny” review under the Equal

Protection Clause. See Majority op. at 14672. Yet the majority

11

See e.g. Adarand, 515 U.S. at 224, Gratz v. Bollinger, 539 U.S. 244,

270 (2003), Johnson v. California, 125 S.Ct. 1141, 1146 (2005). On this

point, the majority agrees. See Majority op. pp. 14670-71 n.12.

14722 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

conceives of strict scrutiny as some type of relaxed, deferen-

tial standard of review. I view it differently.

“No State shall . . . deny to any person within its jurisdic-

tion 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 group classification long recognized as

in most circumstances irrelevant and therefore prohibited”—

we review such state action under the most “detailed judicial

inquiry”—that is, under strict scrutiny. Grutter, 539 U.S. at

326; see Miller v. Johnson, 515 U.S. 900, 911 (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 indi-

viduals. “[A]ll racial classifications reviewable under the

Equal Protection Clause must be strictly scrutinized.” Ada-

rand, 515 U.S. at 224 (1995) (emphasis added). Strict scrutiny

applies regardless whether the racial classifications are invidi-

ous or benign and “is not dependent on the race of those bur-

dened or benefited by a particular classification.” Gratz, 539

U.S. at 270; 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 univer-

sity admissions policies, race-based preferences in govern-

ment contracts, and race-based districting intended to improve

minority representation.”) (internal citations omitted). We

require such a demanding inquiry “to ‘smoke out’ illegitimate

uses of race by assuring that the legislative body is pursuing

a goal important enough to warrant use of a highly suspect

tool.” Adarand, 515 U.S. at 226.

The right to equal protection provides a liberty; it repre-

sents freedom from government coercion based upon racial

classifications. See Miller, 515 U.S. at 904 (the Equal Protec-

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14723

tion Clause’s “central mandate is racial neutrality in govern-

mental decisionmaking”). Thus, under strict scrutiny, all

racial classifications by the government, regardless of pur-

ported motivation, are “inherently suspect,” Adarand, 515

U.S. at 223, and “presumptively invalid,” Shaw v. Reno, 509

U.S. 630, 643-44 (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.

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 race-based policies

are justified.”); Gratz, 539 U.S. at 270; 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 Monte-

rey 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 tie-

breaker. Rather than recognizing the protections of the indi-

vidual against governmental racial classifications, the

majority instead endorses a rigid racial governmental group-

ing 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 con-

stitutionally permissible.

III.

I consider first whether the District has asserted a “compel-

ling governmental interest,” the first element of the strict scru-

tiny 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

14724 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

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 compel-

ling 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. Kil-

lenbeck, Pushing Things Up to Their First Principles: Reflec-

tions 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 inter-

est.” Indeed, throughout the history of strict scrutiny, the

Supreme Court has rejected as invalid all such asserted com-

pelling interests, save for two exceptions. With respect, the

majority errs in creating a third.

A.

The Court has endorsed two race-based compelling govern-

mental interests in the public education context. First, the

Court has allowed racial classifications to remedy past racial

imbalances in schools resulting from past de jure segregation.

Freeman, 503 U.S. at 494. Second, the Court has allowed

undergraduate and graduate universities to consider race as

part of an overall, flexible assessment of an individual’s char-

acteristics to attain student body diversity. Grutter, 539 U.S.

at 328; Gratz, 539 U.S. at 268-69.

Besides those two valid compelling interests, the Court has

struck down every other asserted race-based compelling inter-

est that has come before it. See Shaw v. Hunt, 517 U.S. 899,

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14725

909-12 (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 (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 (1986) (rejecting racial classifi-

cations 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 (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—and

one elided entirely by the majority—is the Court’s consistent

reiteration that “outright racial balancing . . . is patently

unconstitutional.” See, e.g., Grutter, 539 U.S. at 330.

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.

The second exception is also inapplicable, albeit not so

directly acknowledged. At oral argument, the District con-

ceded 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 14676. Nonethe-

less, the majority concludes those differences are inconse-

quential because of the different “context”12 between high

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 (“Context matters when reviewing race-based governmen-

tal action under the Equal Protection Clause.”). There, the Court counseled

that strict scrutiny was to take “relevant differences” into account. Id.

14726 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

schools and universities, and the District’s asserted interest is

a compelling governmental interest in its own right.

Not so. The very differences between the Grutter “diversi-

ty” 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

Indeed, “context” does matter; context always matters in the application

of general rules of law to varied factual settings. See Gomillion v. Light-

foot, 364 U.S. 339, 343-44 (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 gener-

alizations, based on and qualified by the concrete situations that gave rise

to them, must not be applied out of context in disregard of variant control-

ling 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 tal-

isman 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 cer-

tain 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 selec-

tion based on race.

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14727

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 ele-

ment.

Grutter, 539 U.S. at 324-25 (emphasis added); see Gratz, 539

U.S. at 272-73 (“[T]he critical criteria [in a permissible race-

conscious admissions program] are often individual qualities

or experiences not dependent upon race but sometimes associ-

ated with it.”).

The Grutter “diversity” interest focuses upon the individ-

ual, 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. Such a focus is consistent with the Equal Protec-

tion 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 con-

trary, 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 group-

ing of races in the District’s schools.13 Such an interest is not

13

The majority fails to recognize this distinction. For example, compar-

ing the District’s claimed interest with those endorsed in Grutter, the

14728 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

a valid compelling interest; it is simple racial balancing, for-

bidden by the Equal Protection Clause. See id. at 330 (stating

a government institution’s interest “to assure within its stu-

dent 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, the Court rea-

soned the law school’s individualized focus on students form-

ing that “critical mass” would avoid perpetuating the

stereotype that all “minority students always . . . express some

characteristic minority viewpoint on any issue,” id. at 333.

But here, the District’s concept of racial diversity is a pre-

determined, 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 tie-

breaker trigger used in a particular year), and works to

exclude nonwhite students from schools with a 70-75% non-

white student body (depending on the tiebreaker trigger used).

Thus, the District’s concept of racial diversity does not permit

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 uni-

versity, 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 14676, 14678. Yet Grutter did not

allow universities to consider race in admissions to achieve racial balanc-

ing. The whole point of Grutter and Gratz was that universities may con-

sider 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 indi-

vidual, whether he be among the few at an elite law school, or among the

many in a public high school.

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14729

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 neces-

sary to foster classroom discussion and cross-racial socializa-

tion. 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 rep-

resented within the preferred student body ratio. As noted in

Grutter, the only way to achieve diverse viewpoints and man-

nerisms 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 differ-

ence 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 there is something

wrong with a school that has a heavy nonwhite student body

population, or something better about a school that has a

heavy white student body population. See Missouri v. Jenkins,

515 U.S. 70, 122 (1995) (Thomas, J., concurring) (“After all,

14

Again, there is nothing illegal in freely choosing to believe in this ste-

reotype 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 discrimi-

nation.

14730 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

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 the-

ory, segregation injures blacks because blacks, when left on

their own, cannot achieve. To my way of thinking, that con-

clusion 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 pro-

cess 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. Indeed, those

risks are particularly great here because of the blunt nature of

the racial tiebreaker. The District’s racial grouping of stu-

dents, 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 stu-

dent 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,

72 P.3d 151, 169 n.5 (Wash. 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.

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 14666. 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.

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14731

Unlike a voluntary decision by parents to expose their chil-

dren to individuals of different races or background, the Dis-

trict classifies each student by skin color and excludes certain

students from particular schools—solely on the basis of race

—to 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:

Race is perhaps the worst imaginable category

around which to organize group competition and

social relations more generally. At the risk of bela-

boring 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 illu-

sion, as does the fact that most Americans, including

many minorities, think racial preferences are invidi-

ous, not benign. Whether benignly intended or not,

using the category of race—which affirmative action

proponents oddly depict as socially constructed and

primordial and immutable—to 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

14732 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

to what the District claims to seek. Although the District con-

tends 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 pre-

ferred groups, other signals dominate its message -

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 14675-76. Yet the majority

PARENTS INVOLVED v. SEATTLE SCHOOL DIST. 14733

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 stu-

dent achievement than any other single school factor or con-

stellation 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:

[R]esearch suggests that desegregation has had some

positive effect on the reading skills of African Amer-

ican youngsters. The effect is not large, nor does it

occur in all situations, but a modest measurable

effect does seem apparent. Such is not the case with

mathematical skills, which seem generally unaf-

fected by desegregation. Second, there is some evi-

dence 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, evi-

dence has begun to accumulate that desegregation

may favorably influence such adult outcomes as col-

lege graduation, income, and employment patterns.

The measured effects are often weak . . . .

[SER 205, 207-208.]

14734 PARENTS INVOLVED v. SEATTLE SCHOOL DIST.

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 (Thomas, J., dissenting) (collect-

ing studies sugges

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