# Parents Involved in Community Schools v. Seattle School District, No. 1 > Court of Appeals for the Ninth Circuit · October 20, 2005 · 426 F.3d 1162 URL: https://www.frixlaw.com/law-library/cases/3034423 ## Case - **Full name:** PARENTS INVOLVED IN COMMUNITY SCHOOLS, a Washington Nonprofit Corporation, Plaintiff-Counter-Defendant-Appellant, v. SEATTLE SCHOOL DISTRICT, NO. 1, a Political Subdivision of the State of Washington; Joseph Olchefske, in His Official Capacity as Superintendent; Barbara Schaad-Lamphere, in Her Official Capacity as President of the Board of Directors of Seattle Public Schools; Donald Neilson, in His Official Capacity as Vice President of the Board of Directors of Seattle Public Schools; Steven Brown; Jan Kumasaka; Michael Preston; Nancy Waldman, in Their Official Capacities as Members of the Board of Directors, Defendants-Counter-Claimants-Appellees - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** October 20, 2005 - **Citations:** 426 F.3d 1162; 2005 U.S. App. LEXIS 22515 - **Precedential status:** Published - **Opinion:** Opinion - **Judges:** Schroeder, Pregerson, Kozinski, Kleinfeld, Hawkins, Fletcher, Fisher, Tallman, Rawlinson, Callahan, Bea - **Nature of suit:** Civil - **Cited by:** 12 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3034423 ## Opinion text 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, ra [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3034423. Public record. Not legal advice.