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

McConnell, statute, judicial the Court found that review afforded the corruption or prevention ap “the of its is both a reasonable and a constitutional a pearance sufficiently impor constitutes way to make such determinations. The justify political tant to contribu interest Congress Constitution does forbid tion interest in protecting limits.”70 The individuals, from requiring they whether country foreign our terrorist organi agree with Branch the Executive determi- “a sufficiently impor is a zations fortiori not, nation or to refrain from furnishing government tant interest.” federal “[T]he designated material assistance terrorist clearly to enact power has the laws re organizations period during designa- of stricting dealings United States citi tion. zens with foreign “[W]e entities.”71 must REVERSED. allow political branches wide latitude in selecting bring the means about the goal” “preventing

desired the United a being

States from used as base for ter fundraising.”72

rorist

Conceivably MEK developed its

practices at a the United time when States Iran,

supported regime previous

maintained its while position harbored regime Saddam Ba’ath Hussein IN PARENTS INVOLVED COMMUNI Iraq. Maybe position MEK’s will SCHOOLS, TY Washington non change, changed, or has so that its interest profit corporation, Plaintiff-counter- in overturning regime current Iran defendant-Appellant, coincides with interests of the United v. States. could be right Defendants about us, the MEK. But that is not for or for a DISTRICT, SEATTLE SCHOOL NO. case, jury in say. defendants’ political subdivision of the State of analysis sometimes subtle of a foreign or- Washington; Joseph Olchefske, in his ganization’s political program to determine capacity superintendent; official as whether it is indeed terrorist threat Schaad-Lamphere, Barbara in her of the United particularly States is within the capacity ficial as President of the expertise Department of the State and the Board of Directors of Seattle Public Executive Branch.73 Juries could not Schools; Neilson, Donald in his offi make reliable determinations without ex- capacity cial Vice as President of the foreign tensive policy education and the Board of Directors Seattle Public disclosure of classified materials. Nor is it Schools; Brown; Steven Jan Kumasa appropriate jury in a criminal case to ka; Preston; Nancy Michael make Wald foreign policy decisions for the Unit- man, capacities ed their States. official Leaving the determination of Directors, whether a members board group “foreign terrorist organization” Branch, to the Executive Defendants-counter-claimants-Appel coupled with procedural protections lees. McConnell,

70. 540 U.S. at 72. 619. Id. at 1136. 71. Project, 73. Iran, F.3d at Humanitarian Law See Nat’l Council Resistance F.3d 192.

H63 01-35450. No. Appeals, States Court

United Circuit.

Ninth En

Argued and Submitted 21, 2005.

Banc June Oct.

Filed

H65 Harry (argued) J.F. and Daniel Korrell LLP, Ritter, Wright B. Davis Tremaine Seattle, WA, the plaintiff-counter-de- for fendant/appellant. (argued) Sue

Michael Madden and Carol P.S., Janes, Leedom, Bigelow Bennett & Seattle, WA, Green, and Mark S. Office Counsel, General Seattle Dis- School WA, 1, Seattle, No. defen- trict for the dants-counter-claimants/appellees. Browne, L. Pacific Foun- Legal Sharon Sacramento, CA, dation, and Russell C. Brooks, Foundation, Legal Belle- Pacific vue, WA, Legal for curiae the amici Pacific Foundation, Rights American Civil Insti- tute, Rights American Civil Union Opportunity support for Equal Center plaintiff-counter-defendant/appellant. Lawrence, Ellis Paul J. Preston Gates & Seattle, LLP, WA, curiae for the amicus support American Civil Liberties Union defendants-eounter-elaimants/appellees. SCHROEDER, Judge, Chief Before: KOZINSKI, PREGERSON, HAWKINS, KLEINFELD, W. FLETCHER, FISHER, TALLMAN, BEA, RAWLINSON, CALLAHAN Judges. Circuit FISHER; Background2 I. Opinion by Judge KOZINSKI; by Judges Concurrence A. Seattle Schools: A Public Histori- BEA. by Judge Dissent cal Perspective struggle Seattle’s historical with the FISHER, Judge, with whom Circuit problem of racial isolation in public its Judge Judges Chief SCHROEDER system provides school the context HAWKINS, PREGERSON, W. implementation District’s of the current join FLETCHER and RAWLINSON challenged plan. assignment Seattle is KOZINSKI, concurring; Judge concurring community. Approximately diverse in the result. percent white, of its residents are and 30 percent are nonwhite. Seattle appeal requires This us to consider school nearly enrollment down in- integration breaks whether the use of an tiebreak choice, versely, with approximately percent noncompetitive, er in open pub percent white and 60 nonwhite students. lic assignment crafted A (the majority of the District’s white students Seattle School District Number downtown, live in “District”) neighborhoods north of the federal violates Constitu historically the part more affluent of the Equal tion’s Protection Clause. Our re city. A majority city’s the nonwhite guided by principles view is the articulated students, including approximately per- 84 in Supreme the recent Court’s decisions students, cent of all African-American 74 in regarding higher affirmative action edu percent students, of all Asian-American 65 cation, Bollinger; 306, Grutter v. 539 U.S. percent of all per- Latino students and 51 2325, 156 (2003), 123 S.Ct. L.Ed.2d 304 and students, cent of all Native-American live 244, Bollinger, Gratz v. 539 U.S. south of downtown. 2411, (2003), 156 L.Ed.2d 257 and the “[cjontext Court’s directive that matters operates four-year The District 10 reviewing governmental when race-based high schools. Four located north of action Equal under the Protection Clause.” -Ballard, Ingraham, Nathan downtown— 123 S.Ct. 2325. Roosevelt; Hale and five are located south We conclude that District the has a com Sealth, Cleveland, of downtown-—Chief pelling securing interest the educational Franklin, Beach; Garfield and Rainier one (and ethnic) and social of racial benefits is located west of downtown—West Se- diversity, and in ameliorating racial iso years, attle. For over 40 the District has lation or high concentration its schools made efforts to attain and maintain de- by ensuring assignments its do not segregated schools and avoid the racial simply replicate segregated Seattle’s hous isolation or concentration that would ensue ing patterns.1 alsoWe conclude that if assignments replicated school Seattle’s narrowly District’s Plan is segregated tailored to meet housing patterns. Since the 1960s, District’s interests. while courts around country diversity,” 1. The terms "racial Cmty. "racial con- Parents Involved in Schs. v. Seattle Sch. centration” and "racial isolation” have (W.D.Wash. been F.Supp.2d Dist. No. 1224 encompass used to District racial and 2001) ("Parents I"), Washington and the Su diversity, ethnic concentration and isolation. preme Opinion, Court see Parents Involved in purposes opinion, For the of this adopt we Cmty. Schs. v. Seattle Sch. Dist. No. this shorthand. (2003) ("Parents Wash.2d 72 P.3d 151 IV"). following 2. We draw the restatement of facts largely opinion, from the district court see

H67 eliminating “special cilities transfers” districts de- and intransigent school ordered Board volun- white students previously School had allowed segregate, Seattle’s designed to measures end tarily explored Finally, the 1977-78 leave Garfield. in the schools and segregation facto mag- de year, school the District instituted a students with all the District’s provide According program. to the Dis- net-school equal and educational access diverse history: trict’s opportunities. appeared evident that the addi- While 1960s, magnet programs tion early

In the 1950s would late schools, strictly made ba- assignments desegregate were itself the Seattle In Garfield neighborhood.3 supportive sis of was evidence that vol- there minority reported percent High School untary strategies, magnet non-mag- 75 per- it accommodated net, enrollment significant components of a could students. of all African-American cent comprehensive desegregation plan. more Meanwhile, high serving eight schools at 32. History Desegregation city major remained other areas By year, segregation 1977-78 school white. percent more than 95 percent had was increased: Franklin this responded District imba- percent, Rainier Beach 58 Cleve- minority, lance, in the de facto and racial tensions percent. land percent Garfield schools, ways. In various segregated ranged percent from 9 Other 1960s, experi- first early percent minority to 23 enrollment. exchange pro- with small-scale mented spring Seattle branch handfulls of students grams which for the Ad- of the National Association peri- schools for five-week switched (“NAACP”) People of Colored vancement concept, this expanding In ods. the United States complaint filed a with “Voluntary Ra- implemented District a the Department Office of Civil of Education’s through which a program cial Transfer” Rights, alleging that Seattle’s School transfer to school with student could segrega- to Board had acted further would im- space if the transfer available city’s schools. Several other tion receiving at the the racial balance prove organizations, principally the American 1970s, District in- In the school. (“ACLU”), formally Civil Liberties Union again, adopt- its this time creased efforts if the to file additional actions threatened plan in the middle ing desegregation a mandatory deseg- to a adopt District failed to volunteers trans- requested schools that agreed regation plan. When the District majority-domi- minority- fer between plan, the Office of Civil develop such neighborhood and called for nated delay its Rights concomitantly agreed mandatory transfers the number of when agreed ACLU investigation, insufficient, though this volunteers was delay filing a lawsuit. implement- plan was never portion District During the summer of steps deseg- also took ed. District reviewed community representatives High by changing regate Garfield School Ultimately, the District plans. five improving its fa- model program, its educational adopted by “Findings principally and Conclusions” history comes 3. The that follows assign- in entitled, rec- support from two documents the district court of the current the Board in report History One "The ord. (They History cited as plan. ment Schools, Desegregation Public in Seattle Conclusions, Findings and Desegregation and 1954-1981,” prepared was which Dis- respectively.) planners. The desegregation other trict's incorporated elements of each model into explained that “it impossible was to fash- desegregation its final plan, adopted ion clusters a geographically contiguous December 1977 and known as the manner”; “Seattle some cluster schools were near Plan.” The Plan Seattle divided the district homes, students’ but others were in “ra- zones, into within which majority-dominat- cially culturally different neighbor- elementary paired ed schools were hoods.” Findings and Conclusions at 30- minority-dominated elementary schools to 31. Although roughly percent of stu- desegregation. Mandatory high achieve choices, dents received their first the con- assignments school were linked to elemen- trolled plan choice still resulted manda- tary assignments, although various tory busing percent for 16 of the District’s voluntary options transfer were available. students. Plan, With the Seattle the Board directed District staff major Seattle became the first city to to devise a new plan grade for all levels to adopt comprehensive desegregation simplify assignments, reduce costs and in- program voluntarily without a court or- satisfaction, crease community among oth- By der. doing so the District main- things. er The guiding factors were to be tained local control over desegrega- its choice, diversity and predictability. Staff plan tion and was able to adopt and developed four basic options, including the implement plan which in eyes then-existing controlled plan, choice a re- the District best met the needs of Se- gional plan, choice neighborhood assign- attle students and the Seattle School ment provision with a for voluntary, District. integration-positive transfers and an open History Desegregation at Oppo- 36-37. plan. choice nents of the Seattle Plan immediately Board members testified that they con- passed a state initiative to imple- block its sidered all the options they related to mentation, Supreme but the Court ulti- the District’s goals educational spe- —with mately declared the initiative unconstitu- emphasis, cial secondary school lev- tional. Washington v. Seattle Sch. Dist. el, on goals of choice and racial diversi- 457, 470, No. ty. Neighborhood and regional plans were (1982). L.Ed.2d 896 viewed as unduly choice, limiting student The Plan Seattle furthered the District’s on which the District placed high value school desegregation goals, opera- but its because student choice was seen to in- tion was unsatisfactory in ways.4 other In parental crease involvement in the schools 1988, a decade implementation, after its promote and improvements in quality the District abandoned the Seattle Plan through a marketplace model. The Dis- adopted and a new plan that it referred to sought trict to maintain its commitment to as “controlled choice.” Under the con- racially integrated education establish- trolled plan, choice schools were grouped ing diversity goals while moving away into clusters that met state and district rigid the desegregation guidelines desegregation guidelines, and families mandatory and assignments prevalent in were permitted to rank schools within the the 1970s and 1980s. cluster, relevant increasing the predictabil- ity of assignments. Because of Seattle’s adopted Board the open current housing patterns, (the planners “Plan”) the District’s plan choice for the 1998-99 example, For the Seattle Plan was confus- facilities and planning enrollment difficult ing, required mandatory busing of nonwhite flight” contributed to "white from the numbers, students disproportionate city made Findings schools. and Conclusions at 30.

H69 Plan, ability. of the schools— students Three northern year. Under the school Ballard, may select Hale and grade the ninth Nathan Roosevelt—and entering They as- the District. are two of high school the southern schools—Garfield they the school possible, to signed, highly where Franklin-—are desirable and over- many If too first choice. subscribed, list as their that meaning more students as their choose the same school students capacity wish attend those schools than choice, “oversubscrip- resulting first magnitude allows.5 The the oversub- tion,” assigns the District students to each noteworthy: For academic scription is the on a school based series oversubscribed 2000-01, year approximately percent If a not admitted student is tiebreakers. one of the oversub- students selected as a or her first choice school result to his choice, scribed schools as their first while tiebreakers, the District tries of the picked percent about 18 one of her to his or second assign the student high first undersubscribed schools as their school, not on. Students choice and so oc- Only oversubscription choice. when to one of chosen schools are assigned their curs does the District become involved space to the school with assigned closest assignment process. available; list more choices students who oversubscribed, all If a is high school likely one of these less to receive grade for ninth are ad- applying students “mandatory” re- assignments. most according mitted of four tie- series Plan, which School cent version breakers, applied following in the order: for the annually, reviews 2001-02 Board First, have a attend- sibling students who subject litiga- and is of this year school ing any given are admitted. school tion. school, sibling tiebreak- oversubscribed 15 to er accounts for somewhere between B. ThePlan the ninth percent of the admissions to to make sought The District has each grade class. high unique, programs its 10 Second, high if an oversubscribed continually changing respond meaning racially In- imbalanced — parents. and their needs up make its student the racial deed, implemented Plan body percent more than 15 differs comprehensive improve effort to part of a up from the make of the students of all the equalize attractiveness a whole— of the Seattle schools as schools, including adoption of a high sibling preference if does formula, funding a facilities weighted bring school with- oversubscribed contract that would and a new teacher percent of the Dis- plus minus make teacher transfers easier. Neverthe- tie- the race-based less, widely demographics, trict’s high vary schools desir- the High including joining the "Coalition of Essential popularity current of Ballard 5. The instituting constantly chang- a Grade and "Ninth School is illustrative of the Schools” high Integrated Grade Stud- ing dynamic Academy” of Seattle's schools. and "Tenth Hale, Program.” moved to a new the fall of Ballard ies Prior to Nathan In school, facility leadership princi- high the of a new oversub- under was not north area move, scribed, predomi- was pal. body to the Ballard not over- Prior the student was subscribed; popular high nantly Starting now one of the most the it is nonwhite. waitlist, high schools in Seattle. more began have a to students, previously passed on white who had Similarly, demographics popularity the result, Hale, go to wanted there. As changed signifi- Nathan High Nathan Hale School declined of nonwhite students principal the number cantly acquired when it a new who innovations, dramatically 2000. between 1995 and academic instituted number of “triggered” is and the race of the lard than assigned breaker would have been absent (For tiebreaker, is considered. applying student the the 82 more nonwhite students tiebreaker, purposes of the race-based assigned were to Roosevelt than would speci- student is deemed to be of the race have assigned been absent the tiebreaker materials.) registration fied his or her and 27 more nonwhite students were as- Thus, if a per- signed school has more than 75 to Nathan Hale than would have (i.e., cent nonwhite students more than assigned 15 been absent the tiebreaker.7 percent percent above the overall 60 non- assignments These accounted about 10 population) white student percent less than 25 high admissions to Seattle’s students, percent is, white or when it has schools as whole. That approxi- percent 3,000 less than 45 mately nonwhite students incoming entering students (i.e., percent more than 15 below high the Seattle the 2000-01 school percent popu- year, overall 60 student approximately nonwhite assigned 300 were to lation) percent and more than 55 white high oversubscribed school based on students, racially the school is considered the race-based tiebreaker.

imbalanced. changing addition to trigger point

Originally, schools that deviated for the year 2001-02 school plus to or percent more than 10 were deemed racial- percent, minus 15 the District also devel- ly “thermostat,” imbalanced. For the 2001-02 school oped a whereby the tie- however, year, triggering number was breaker applied entering ninth percent, softening increased to 15 grade the ef- population student only until fect of the year, tiebreaker.6 For that comes within percent plus the 15 or minus race-based tiebreaker was used in assign- point reached, variance. Once that ing entering grade ninth to District “turns-off” the race-based tie- Ballard, breaker, three oversubscribed and there is no further consider- schools— Franklin Accordingly, and Nathan Hale. in ation of a student’s assignment race seven of the public high process. schools in The tiebreaker apply, does not 2001-02, race was not in making relevant considered, and race is not for students admissions decisions. entering school after the ninth transfer). grade (e.g., by

The race-based applied tiebreaker is both white and nonwhite students. For As below, demonstrated in the chart example, in the year 2000-01 school District estimates that without the race- —when trigger point plus was still or tiebreaker, minus 10 based the nonwhite populations percent more white students were as- of the 2000-01 grade ninth class at Frank- —89 signed to Franklin than would have been lin would percent, have been 79.2 at Hale assigned tiebreaker, absent the 107 more percent, 30.5 percent Ballard 33 and at nonwhite assigned students were to Bal- percent. Roosevelt 41.1 Using the race- Although general the record reflects the ef- 7. The change Board's trigger decision 2001-02, fects of the tiebreaker in it does not point for use of the plus tiebreaker from specific include the number of students affect- percent plus minus 10 percent, or minus 15 ed the tiebreaker in the three oversub- however, had rendering effect of applied. scribed schools where the tiebreaker High Roosevelt desegrega- School neutral for record, however, The does include these num- Thus, purposes. tion the tiebreaker did not year. bers for the Although 2000-01 school assignments factor into High to Roosevelt operated differently tiebreaker in 2000- School year. 2001-02 school 01, applied to four schools rather than three, gen- the 2000-01 numbers illustrate the operation eral of the tiebreaker.

H71 Plan, tiebreaker, claimed that the District’s use of pop- the actual nonwhite based at the grade high ninth classes race-based tiebreaker for ulations of the per- were 59.5 respectively same schools under the illegal Washington admissions is cent, percent 54.2 and 55.3 percent, (“Initiative 40.6 200”),8 Rights Act Civil percent. Equal Protection Clause of the Fourteenth Percentages 2000-01 Difference Amendment9 and Title VI of the Civil Grade Students in Ninth Nonwhite Act of 1964.10 Rights Without Tiebreaker Both Parents and the District Without With Percent Difference

School Tiebreaker Tiebreaker summary judgment on all moved for opinion In published April claims. a dated Franklin_792_5915-19.7 40.6 +10.1 30.5 6, 2001, upheld the district court the use of Nathan Hale 33.0 the racial tiebreaker under both state and +21.2 54.2 Ballard law, granting federal the District’s motion. 55.3 41.1 +14.2 Roosevelt Cmty. v. Seattle Parents Involved Schs. tiebreaker, students are In the third 1224, 1240 F.Supp.2d Sch. Dist. No. according to distance from 1, admitted (“Parents I”). (W.D.Wash.2001) Parents Dis- high home to the school. student’s timely appealed, April and on and school is calculat- tance home between of this court issued an three-judge panel mile, closest of a with the ed within 1/100 opinion reversing the district court’s deci any giv- being admitted first. sion, holding that the Plan violated Wash school, the distance- en oversubscribed discussing law and federal law ington state tiebreaker accounts for between based construing law. only as an aid to state to the ninth percent to 75 admissions Cmty. Parents Involved in Schs. v. Seattle grade. (9th Sch. Dist. No. 285 F.3d Cir. tiebreaker, lottery In the fourth 2002) (“Parents II”). panel subse remaining seats. Be- used to allocate quently opinion withdrew its and certified tiebreaker serves to cause the distance Washington question the state law in the Dis- assign nearly all the students Parents Involved in Supreme Court. trict, virtually lottery never used. Dist. No. Cmty. Schs. v. Seattle Sch. History C. Procedural Cir.2002) (“Parents (9th F.3d III”). Washington Supreme Court Community Involved in Schools Parents decision, panel’s hold disagreed with the (“Parents”), group parents whose chil- open choice did not vio not, be, ing that the assigned might dren were or Washington law. Parents Involved of their choice under late to the color, ("The origin, be excluded from § or national Rev.Code 49.60.400 state 8. Wash. of, in, prefer- against, grant participation not discriminate or denied the benefits or shall be to, group any individual or ential treatment any pro- subjected to discrimination under race, sex, color, ethnicity, or on the basis of receiving gram activity Federal financial or origin operation public em- in the national assistance.”). Because "discrimination education, ployment, public con- Equal Protection Clause of violates tracting."). in- committed Fourteenth Amendment accepts funds also con- stitution that federal XIV, ("No § 1 state 9. U.S. Const. amend. VI,” we address the of Title stitutes violation juris deny person within its shall ... challenges racial tiebreaker simul- twin to the laws.”). equal protection of the diction the Gratz, taneously. 539 U.S. at 276 n. ("No person § 2000d in the 10. 42 U.S.C. S.Ct. 2411. shall, race, ground States on the United 1172 v. Sch. Cmty. Schs. Seattle Dist. No. 149 en banc rehearing and now affirm the dis 1, 660, 151, 72 P.3d

Wash.2d 166 trict court.11 (“Parents TV”) (holding Washington prohibit not the Seattle

law “does School II. Discussion open District’s choice tie breaker A. Scrutiny Strict upon long race so as it based remains We review racial classifications ethnicity neutral and on race and does not scrutiny standard, under the strict which promote qualified minority a less applicant requires policy in question be qualified applicant”). over a more There narrowly tailored to a compelling achieve after, majority of the three-judge panel state California, interest. See Johnson v. although court held that this the Dis - -, 1141, 1146, U.S. 125 160 trict demonstrated a interest (2005); Grutter, L.Ed.2d 949 539 U.S. at achieving the benefits of racial diversity, 326, 2325; 123 S.Ct. Adarand Construc- Equal the Plan violated the Protection tors, Pena, 200, Inc. 226-27, v. 515 U.S. narrowly Clause because was not tai 2097, (1995).12 115 S.Ct. lored. Parents Involved in 132 L.Ed.2d 158 Comty. Schs. Dist., v. Seattle Sch. No. 377 The strict scrutiny F.3d 949 standard is not “strict (9th Cir.2004) (“Parents V”). granted in theory, Adarand, We but fatal in fact.” 11. We review the district court's resolution of Department ment that a California of Correc (“CDC”) summary judgment policy cross-motions for de tions in which all inmates Tacoma, City novo. segregated by United States v. were subjected race should be (9th Cir.2003). F.3d scrutiny to relaxed policy because the "nei ther benefits group nor burdens one or indi any group vidual more than other or individu Judge Kozinski's 12. concurrence makes (internal al.” quotation Id. at 1147 marks powerful adopting stringent case for a less omitted); (noting see also id. at 1146 that all standard of review here because Plan does racial special classifications "raise fears that attempt not to '‘benefit[] or burden[] they purpose” motivated an invidious particular group;” therefore it “carries none "[ajbsent searching and that judicial inquiry baggage Supreme Court has found justification into the for such race-based mea objectionable” equal protection in earlier sures, simply way there is determining no Kozinski, J., concurring, cases. at 1194 infra ... what classifications are in fact motivated Recognizing importance of con- by illegitimate inferiority notions of racial Supreme equal text in protection Court’s (internal simple politics” quotation racial jurisprudence, Judge proposes Kozinski "ro- omitted)). Judge marks and citation As Ko- bust and realistic” rational basis rather than notes, aptly zinski entirely Johnson is not scrutiny strict review. Id. at-. Coali- Cf. analogous to the instant case because the Wilson, tion Equity Economic v. 122 F.3d segregated race, CDC inmates on the basis of (9th Cir.1997) (“We 708 n. 16 have rec- whereas the District’s use of race is aimed at ognized ... programs ‘stacked deck’ achieving opposite attaining result— trench on Fourteenth Amendment values in Kozinski, J., maintaining integrated schools. ways programs that ‘reshuffle’ do not. Unlike Nevertheless, concurring, infra, at 1194. like preference programs, desegrega- racial school the First and Sixth Circuits—the other invidious, programs inherently tion are not do rule, Gratz, post-Grutter circuits to on the wholly not work to the benefit of certain constitutionality voluntary plan of a designed group members of correspondingly one to achieve the benefits of diversity to the harm of certain members of another public secondary setting con —we group, deprive and do rights.”) citizens of clude that the Plan must be reviewed under (internal marks, quotation alterations and ci- scrutiny. strict Lynn v. School Comfort omitted). tations Committee, (1st Cir.2005) (en 418 F.3d Nonetheless, Supreme banc); Court in Johnson McFarland v. County Public Jefferson — -, California, v. Schools, (6th Cir.2005) 416 F.3d (2005), rejected argu curiam). L.Ed.2d 949 (per

H73 (internal was 237, quota purposes must examine the the order at U.S. serve”). omitted). intended to gov “Although all tion marks subject race to strict uses of ernmental Although Supreme the has never Court by it.” not all are invalidated scrutiny, a involving decided case the consideration Grutter, 326-27, 123 2325. at S.Ct. 539 U.S. in a voluntarily imposed of race scrutiny “smoke out” employ to We strict ra- assignment promote intended to by ensuring of uses race impermissible ethnically secondary cially and diverse goal a is government pursuing that the schools, regarding its decisions selective high of a enough to warrant use important higher to learn- admissions institutions of 327, 2325 Id. at 123 S.Ct. that rea- ly suspect ing compelling tool. demonstrate one omitted). (internal considering This race is to achieve the marks son quotation diversity. benefits of of a educational provides heightened standard review compelling recog- interest that the Court carefully im examining the framework for promotion in Grutter was nized the reasons portance sincerity and the of educational societal benefits specific decision- by governmental advanced Grutter, diversity. flow from 539 that See particular the use of in that maker for race 330, (noting at 123 S.Ct. that the U.S. 2325 Washington, v. Smith Univ. context. of concept critical mass must law school’s of (9th Cir.2004). 367, In evalu 392 372 F.3d by “defined reference to the educational Plan scru District’s under strict ating the diversity designed pro- that to benefits bear mind the Court’s tiny, we also duce”). evaluating the relevance of di- “[cjontext re matters when that directive education, fo- versity higher the Court governmental action race-based viewing benefits that principally cused two Equal Protection Clause.” under (1) body provides: diverse student Grutter, 326, at 2325. 123 S.Ct. advantages having diverse learning of “robust ex- viewpoints represented Interest Compelling B. State of ideas” is critical to that change govern scrutiny, strict Under 329-30, education, at higher id. mission moti will not survive unless ment action (2) 2325; greater societal 123 S.Ct. interest.” “compelling state vated higher learn- legitimacy institutions 327, 325, Be at 2325. See id. 123 S.Ct. national enjoy by group ing cultivating scrutiny to evalu requires us cause strict our representative who are leaders government’s “fit” between the ate the 332-33, diversity, 123 S.Ct. country’s id. at ends, Wygant and its v. Jackson means the role The Court also mentioned 2325. Educ., 6, n. 476 U.S. Bd. of stereotypes. diversity challenging (1986), it is 90 L.Ed.2d 260 S.Ct. 330, 333, 123 The Court Id. at S.Ct. 2325. identify govern precisely critical edu- deferred to the law school’s largely which the interests —the ends—to mental determining judgment cational fit. government’s use race must diversity these bene- produce would Paradise, v. 480 U.S. United States fits, determining also in these but L.Ed.2d 203 edu- were critical the school’s benefits that, 328-33, in order to wheth (stating determine Id. cational mission. tailored, “we narrowly er an order was 2325.13 its judgment of interest further bolstered Court also heeded the educators, amici, including business benefits point amici educational who curiae — military educational leaders and the diversity.”); body see that flow from student —that diversity that flow from constitute benefits ("These theoretical id. benefits are not also compelling interest. real, major have businesses but American ("The Law claim of a S.Ct. 2325 School's

Against background, this we consider vides opportunities these for students to interests that specific the District’s racially ethnically attend and diverse Plan to advance. These seeks interests school, voluntary and to assist in the are articulated the “Board Statement school, integration of a because it be- Diversity Rationale” Reaffirming as: providing lieves that learning diverse Diversity in the classroom increases the educationally environment beneficial likelihood that students will discuss ra- for all students. likely cial or ethnic issues and be more The District’s interests fit into two people to socialize with different (1) categories: broad the District seeks the Diversity is thus a races. valuable re- affirmative educational and social benefits teaching source for students to become that diversity; flow from racial and citizens a multi-racial/multi-ethnic District seeks to resulting avoid the harms

world. from racially concentrated or isolated Providing opportunity students the schools. attend diverse student en- also rollment has inherent educational 1. Educational and Social Benefits standpoint value from the of education’s that Diversity Flow from society.... role a democratic Diversi- The District has established that ty brings viewpoints expe- different and diversity produces a number of com riences to classroom discussions and pelling educational and social benefits in thereby pro- enhances the educational secondary First, education. It cess. also fosters racial and cultural presented expert testimony that in racially understanding, particularly which is im- schools, diverse “both white minority and portant in a racially and culturally di- experienced improved critical society verse such as ours. thinking ability skills—the to both under The District’s commitment to the diver- stand challenge and views which are differ sity of its schools and to ability ent from their own.” voluntarily racially avoid concentrating Second, the District demonstrated the patterns enrollment helps also ensure socialization and citizenship advantages of that all students have access to those schools, racially faculties, officials, diverse schools. School offerings, course relying on their experience resources that will enable them to reach teachers administrators, potential. their full and the District’s ex- pert all explained these benefits on the foregoing rationale, Based on the record. According to the expert, District’s Seattle School District’s commitment is the social “clearly science research no student should be required to that, consistently racially attend a shows for both concentrated school. white and students, minority The District is also provid- committed diverse educational ing opportunity experience students with the improvement to vol- results in in race- untarily relations, choose to attend a school to prejudicial the reduction of atti- promote integration. tudes, The District pro- and the achievement of a more ... made that, clear that the today’s skills needed in military ed States assert ‘[biased on increasingly global marketplace only can experience,’ 'highly [their] decades of quali- developed through exposure widely diverse fied, racially corps diverse officer ... is essen- cultures, ideas, people, viewpoints.”); id. military’s ability tial to the princi- to fulfill its ("[H]igh-ranking re- ple provide ”). mission to security.’ national tired officers and civilian leaders of the Unit-

H75 compelling .... in a similar also experience significant- for all citizens but inclusive ly research further shows different manner. See can desegregated (noting and diverse school offer The re- opportunities and diversity such state interest benefits. supports proposition search further judged in relation to the educational bene- lasting.” long that these benefits are that it produce). fits seeks to added.) (Emphasis expert Even Parents’ in Supreme Court Grutter noted the general agree- conceded that “[t]here importance higher “prepar education in general and the experts ment both ing students for work citizenship.” policy that is a public integration desirable 331, 539 U.S. 123 S.Ct. 2325. For a mainly for the social benefit of in- goal reasons, public secondary number of understanding information and creased schools have an if equal impor not more the cultural and social about differences First, tant in preparation. role this under among groups.”14 various racial and ethnic lying history desegregation in this is, diversity encourages That students not country legal regime is a that recognizes critically to think but also democrati- principle that public secondary edu cally. cation unique serves a and vital socializa Third, expert the District’s noted that society. tion function in our democratic desegregated “research shows that ed- a[ ] Doe, explained Plyler As the Court in v. experience opens opportunity ucational recognized have public “[w]e schools as higher education and networks areas of preser most vital civic institution for the strongly ... that employment shows [and] system vation of a democratic of govern graduates desegregated high schools ment, and primary as the vehicle for trans likely integrated are more to live in com- mitting society the values on which our not, munities than those who do and are 202, 221, rests.” 457 U.S. 102 S.Ct. friendships likely more to have cross-race (1982) (internal quotation 72 L.Ed.2d 786 later life.” omitted); marks and citations see Bethel Fraser, Sch. Dist. No. v. District’s interests in the education- (1986) 106 S.Ct. 92 L.Ed.2d 549 diversity al are simi- and social benefits (stating the inculcation civic values lar to those of a law school as articulated schools”) (internal “truly the work of the The contextual differences be- Grutter. universities, omitted); quotation Plyler, public high marks U.S. tween 221-23, however, (noting pub- make the District’s interests that inter- "It is in the best interests of the 14. Academic research has shown found that group prejudice supports (A) contact reduces United to continue the Federal States— Black, citizenship. the values of See Derek support educational Government’s of local Comment, Compelling The Case the New agencies voluntarily seeking that are to foster Improving Government Interest: Educational meaningful among dif- interaction students of Outcomes, (2002) 80 N.C. L.Rev. 951-52 backgrounds, begin- ferent racial and ethnic (collecting demonstrating academic research stages ning students’ at the earliest of such desegregated interpersonal interaction in education; (B) to ensure that all students prejudice and schools reduces racial stereo- high equitable quality have to a edu- access types, improving citizenship students’ values prepare cation that will all students to func- racially ability di- and their to succeed in technologically oriented and a tion well in lives). society verse in their adult economy comprised highly competitive people many and ethnic different racial in diver- 15. The District's interests 7231(a)(4) (em- backgrounds.” § 20 U.S.C. sity by Congress. have been endorsed In the Act, added). Magnet Congress phasis Schools Assistance relatively percentage of the sys cating a small political perpetuates lie education choosing social advance its to use race when population, the economic tem and has a and that “education body public citizens not allow school ment of student but maintaining the fabric district, role attending fundamental all children its educating Norwick, 441 v. society”); Ambach of our schools, to consider a student’s race 68, 76-77, L.Ed.2d that the schools with- order ensure public schools (observing that maintain in the district attain and diverse “the values on which to children transmit student bodies. rests,” including “fundamental society our Third, context involves maintenance of a necessary to the values who, they younger because Brown v. political system”); democratic are more amena- impressionable, and more 483, Educ., 493, 74 S.Ct. Bd. diversity. to the benefits of See Com- ble (“[Education] 686, is 98 L.Ed. 873 (“In fact, there is fort, 418 F.3d at 15-16 of our most performance in the required significant evidence in the record that the .... It is the public responsibilities basic racially diverse school are benefits of a citizenship. To very good foundation compelling younger ages.”); more at Com- in awaken day principal it instrument is Committee, Lynn v. School 283 fort values, prepar cultural in ing the child to (D.Mass.2003) 328, F.Supp.2d (noting training, and ing professional him for later testimony describing racial expert stereo- adjust normally to his helping in him to “a that difficult typing as ‘habit of mind’ environment.”). law, Washington Under explaining to break once it forms” and by training is mandated such civic is more difficult to teach racial toler- “[i]t “Our constitution is state constitution: students; college-age ance to the time to in value on edu unique placing paramount young, do it is when the students are still IV, citizenship.” Parents cation for they before are locked into racialized P.3d at 158. Brown, Liu, thinking”); see also Goodwin Second, although hopes one that all stu- Bollinger, Beyond, 47 How. L.J. public graduate dents who Seattle’s (2004) (“[I]f ‘diminishing force opportunity to at- schools would have stereotypes’ compelling peda- [racial] higher learning they if tend institutions education, gogical higher interest in elite desire, number of so a substantial Seattle’s only elementary can be more so in do not public high graduates school attend secondary very premise schools—for the students, college.16 For these their diversity rationale is that Grutter’s stu- experience high school educational will be higher having enter had dents education opportunity reap their sole benefits early too in opportunities grades few learning of a diverse environment. We study alongside peers and learn from other reject notion that those students Grutter, groups.”) (citing 539 U.S. at high

who leave school and enter the elite 2325) added)). (emphasis 123 S.Ct. higher garner world of education should diversity The dissent that racial insists learning that flow from benefits Indeed, public high compelling in a school is not a diverse classroom. it would abe interest, Equal arguing Grutter endorsed perverse reading of the Protection university, compelling Clause that would allow edu- law school’s interest diversi- According graduation percent to the Seattle Times’ School ter and 38.2 attend two- Parents, year Guide submitted for the year colleges, although percentages vary from average percent high of Seattle's high school to school. graduates four-year colleges attend af-

H77 higher or more holistic schools are characterized much ty only in some broader Bea, J., dissenting, infra, poverty, average at 1202. levels of lower test sense. interest, scores, this the dissent lower levels of student achieve- To attain broader ment, contends, may only less-qualified consider with teachers and few- along excep- other attributes such as er advanced few “[w]ith race with courses— tions, status, ability speak separate unequal mul- schools are still socioeconomic al., talents. schools.” Erica A tiple languages Frankenberg or extracurricular et Grutter, however, recognize Society Segregated read Multiracial We it, diversity, proxy Losing not some Schools: Are We the Dream? 11 that racial (The Rights Project, at is valuable and of itself. 539 U.S. Civil Harvard Univ. 2003), (discussing http://www.civilright spro- the “sub- Jan. racially ject.harvard.edu that flow from a stantial” benefits re- /research/ (here- body citing seg03/AreWeLosing theDream.pdf) student several diverse ”) (last impact Rights of racial inafter Project sources detail “Civil visited environment). 2005) (cited diversity the educational October J., (Ginsburg, short, the District has demonstrated concurring)). that a in the has interest Seattle, having In the threat of benefits of racial to attend educational social racially concentrated or isolated school is diversity similar to those articulated not a or Supreme imagined problem.17 in as as the theoretical Court Grutter well found, As the district court compelling additional educational and so- housing patterns “established that in diversity unique cial of such to the Se benefits concentrated,” secondary racially attle continue to be public school context. in racially and would result concentrated Avoiding Resulting 2. Harms if assignments or isolated schools school Racially or Isolated Concentrated solely neighbor were based on student’s Schools proximity hood or to a particular I, achieving F.Supp.2d The District’s in Parents 137 at 1235. interest school. racially Accordingly, of a di the District’s Plan strives to affirmative benefits segre of flip patterns verse educational environment has a ensure that residential avoiding racially gation replicated are not in the District’s side: concentrated iso Comfort, F.3d particular, assignments. lated schools. the District is school 418 Cf. (“The Lynn, that in in making problem concerned with the educational at 29 as cities, learning many benefits of a diverse environment other minorities and whites neighborhoods. ensuring available to all its students and often live different Lynn’s local required preserve that “no student should be aim is to schools as racially option having housing pat without attend concentrated school.” segregation projected of into Reaffirming See “Board Statement Diver tern de facto (Boudin, C.J., Rationale,” con sity quoted supra p. system.”) 1174. Re the school much of regarding desegregation curring). Although search has found Parents make racially operated that has never that concentrated or isolated the fact “Seattle years prospect 17. across the nation can schools are now twelve of children resegregation. being required racially process to attend concentrated of continuous students, desegregation of black which in- or isolated schools is a crisis that school boards, districts, continuously to the parents from the 1950s teachers and con- creased 1980s, ("At Project not seen daily. Rights 4 late has now receded to levels front See Civil decades.”). beginning twenty-first century, of the Ameri- in three as stated in Zervos v. Veri allege grounds that other system,” school segregated (2d case,” N.Y., Inc., desegregation 252 F.3d 171 n. 7 not a school zon “this is the matter has con Cir.2001); to review each court Parent Ass’n Andrew Jack housing Ambach, that because Seattle’s cluded High Sch. v. 738 F.2d son would be high schools Seattle patterns, (2d Cir.1984) (“[W]e that held race conscious highly segregated absent goal ensuring the continuation Board’s I, F.Supp.2d at Parents measures. See relatively integrated schools for the 1239-40; II, 1237; 285 F.3d at Parents students, at the maximum number of even IV, 1088; III, Parents Parents 294 F.3d freedom of choice for some limiting cost of 72 P.3d at 153. students, scrutiny strict minority survived law.”) (citing a matter of Parent Ass’n as that, “[t]he court found The district Arnbach, High Sch. v. Andrew Jackson court- gave that rise to the circumstances (2d Cir.1979)); 598 F.2d 717-20 assignment policies approved school Sch., County McFarland v. Pub. segregated housing [e.g., 1970s Seattle’s Jefferson F.Supp.2d (W.D.Ky.2004) to compelling continue to be as patterns] voluntary maintenance of day they days (concluding were in the of the dis .... mandatory busing programs desegregated system trict’s was defy logic for this court to find would [I]t state and the district compelling interest programs today intrusive that the less in assigning could consider race Equal Protection Clause while violate schools), comparable 416 F.3d 513 aff’d programs of the 1970s the more coercive (6th Cir.2005).18 join We these courts I, F.Supp.2d Parents did not.” have a recognizing school districts Thus, “[p]revent- it concluded real, ameliorating interest ing re-segregation the of Seattle’s schools segregation. identifiable de facto racial 1237; compelling ... a Id. at is interest.” dissent, however, contends first that other courts see id. at 1233-35. Several “desegregating” is not but a have also conceived of school district’s in engaged balancing. rather racial of voluntary prevention reduction or de Bea, J., infra, dissenting, at 1197-1198. compelling facto as a interest. segregation Further, dissent, segregation for the re- Comfort, (holding 418 F.3d at 14 that quires intentionally sepa- a state actor to “negative consequences of racial iso races; in rate the and the absence of such Lynn that to lation seeks avoid and the conduct, Supreme offensive state diversity of it to hopes benefits detailing Court cases the remedies for interests); compelling achieve” constituted Fourteenth Amendment violations are of Dist., Irondequoit Brewer v. W. Cent. Sch. Bea, J., infra, no dissenting, relevance. (2d Cir.2000) 738, (holding 212 F.3d 752 1208, Thus, n. 17. a court finding without in “a interest can be found jure segregation of de the elected school program object a that has as its the reduc may board appears tion of racial isolation and what to members District segregation”), superseded voluntary, steps be de facto on take affirmative towards District, segregation 18. Like the none of the school dis- measures would make it difficult subject tricts cases in above-cited was to today required showing to make that the nor, desegregation court-ordered decree segregated districts intended to create schools. Jackson, exception of Andrew did See, (ex- e.g., Comfort, F.Supp.2d 283 at 390 litigation schools face an imminent threat of plaining vulnerability that the district’s to liti- District, compel desegregation. to Like the gation very had been "headed off Plan they may litigation have been vulnerable to in here”). in contention past, voluntary decades but the de- districts'

H79 (1971) (“[A]s body. 586 creating racially diverse student S.Ct. L.Ed.2d jure segre- disagree. The fact that de of policy We matter educational school authori- particularly offensive to our Con- gation may ties well conclude that some kind of not diminish the real harms stitution does racial in balance the schools is desirable the races other means. separation of of quite apart from constitutional re- children “Segregation of white colored quirements.”); Bustop, Inc. v. Bd. Educ. effect public in schools has detrimental 1380, 1383, Angeles, Los 439 U.S. impact is the colored children. The upon (1978) 58 L.Ed.2d (denying sanction of greater when has the request stay implementation to of a volun- Educ., Bd. law....” Brown v. U.S. tary desegregation plan noting 483, 494, 686, L.Ed. 873 74 S.Ct. “very there was little doubt” that the Con- added). that flow (emphasis The benefits permitted implementa- stitution at least its (or exist integration desegregation) tion); Keyes v. Sch. Dist. No. responsi- or not a state actor was whether 189, 242, 37 L.Ed.2d 548 earlier isolation. ble (1973) (Powell, J., concurring part statement that “in the field of Brown’s (“School would, dissenting part) boards [sjeparate education ... educational course, develop be free to and initiate inherently unequal” retains facilities are plans promote desegrega- further school today. Id. at 74 S.Ct. 686. validity its .... Nothing opinion tion this is meant The District is entitled to seek the benefits discourage school boards from exceed- harms integration of racial avoid the minimal ing constitutional standards segregation even in the absence of a promoting integrated the values of an deeming court order it a violator of the experience.”); v. Washington school Se- U.S. Constitution. 480, 487, attle Sch. Dist. No. Support for this conclusion comes from (holding unconstitutional Supreme statements Court’s the state initiative that blocked the Seattle cases, desegregation repeatedly which re mandatory busing School District’s use voluntary integration of schools fer remedy segregation). facto de policy educational the dis sound within sum, we hold that the District’s inter- cretion of local school officials.19 See in and obtaining ests the educational social Charlotte-Mecklenburg Swann v. Bd. of diversity secondary in benefits of racial Educ., 1, 16, 1267, 402 U.S. 91 S.Ct. 28 racially in avoiding education and concen- (1971) that school (stating L.Ed.2d 554 from resulting trated or isolated schools traditionally charged with authorities “are segregated housing pattern Seattle’s are implement to formulate and power broad clearly compelling. policy might educational well conclude ... prepare that in order to Tailoring Narroio C. society in a each school pluralistic live must next determine whether We prescribed Negro ratio of should have of the race-based tie the District’s use reflecting proportion white students narrowly tailored to achieve its whole”); breaker for the district as a N.C. State Grutter, Swann, 43, 45, 539 compelling Bd. Educ. v. 402 U.S. 91 interests. See of by dealing presented correctly deci- with the issues these 19. The dissent notes that these jure exclude the context of de cases is to see that school authorities sions were rendered in school, minority any segregation. import signifi- pupil from But their is also no of racial directly indirectly, of race. cantly compelling de on account in the context of facto Swann, Indeed, (emphasis segregation, at S.Ct. 1267 add- as in Seattle. 402 U.S. 91 stated, ed). objective the Court further "Our 1180 (4) that program; to the affirmative action 2325. The narrow at U.S. “ unduly group ‘smoke member of was inquiry is intended no

tailoring by ensuring harmed; program uses of race” that the had illegitimate out’ classification government’s provision point. or some other end sunset goals that it to the closely Washington, fitted 392 F.3d Smith v. Univ. of (9th Richmond v. J.A. Cro Cir.2004); to achieve. Comfort, seeks F.3d Co., 469, 493, 109 S.Ct. 488 U.S. son (characterizing outlining at 17 Grutter as (1989). Here, analy our L.Ed.2d 854 tailoring inquiry”). “four-part narrow tailor framed the Court’s narrow sis is applica- five through Hallmarks two Gratz, which, analysis in ing Grutter despite significant differences be- ble here informed by specific considerations though at competitive plans tween the admissions context, substan education higher to the the Dis- issue in Gratz and Grutter and Grutter, 539 tially guides inquiry. our assignment trict’s Plan. The (stating at 123 S.Ct. 2325 U.S. hallmark, however, relevant to first is less tailoring inquiry is context- the narrow dif- analysis our because of the contextual to fit the specific and must be “calibrated higher ferences between institutions case, given in a tak distinct issues raised” learning public high schools. account”) (in into ing “relevant differences omitted). marks quotation ternal Individualized, Holistic Consider- Gratz, held unconstitution the Court Applicants ation of University Michigan’s undergrad al the applicant’s qualifications a. An program, uate admissions which automati admissions, university In the context of cally assigned points on the admissions for a limited applicants compete where underrepre an an applicant scale to class, spaces in a minority group. sented racial or ethnic number Court 255, 272, 2411. In inquiry Grutter and Gratz focused its contrast, upheld the Court may play judging ap- race role University Michigan Law School’s ad plicant’s qualifications. The Court’s un- policy, missions which took race into ac derlying concern was the “admissions count as one of several in an variables policy enough is flexible to consider all application. individual’s 315- pertinent diversity light elements 16, 340, 123 S.Ct. 2325. The law school’s particular qualifications appli- of each policy attempted also to ensure that cant, place and to them on the same foot- underrepresented “critical mass” of minor consideration, ing although not neces- ity students would be admitted in order to sarily according weight.” them the same realize the of a benefits diverse student Grutter, 539 U.S. at 316, 123 body.20 Id. at S.Ct. (internal added) (emphasis quotation omitted); Adarand, marks see 515 U.S. at analysis, In its the Court identi (“The injury 115 2097 in S.Ct. cases narrowly fied five hallmarks of a tailored (1) discriminatory of this kind is that a classi- plan: affirmative action individualized prevents] plaintiff fication from com- applicants; consideration of the ab (3) serious, peting equal footing.”) (emphasis sence of on an quotas; good-faith added) (internal omitted). consideration of quotation race-neutral alternatives marks explained minority participate 20. The Court that "critical mass” students to in the class- "meaningful was defined the law school as room and feel isolated.” 539 not (internal "meaningful representation,” quota- numbers” or or U.S. at 123 S.Ct. 2325 omitted). encourages underrepresented "a number that tion marks

H81 due, competition fair is in qualifications The focus on tions—whether these are if part, stigma may to the attach things scores, such as an applicant’s test are viewed as unable to some individuals grades, artistic or ability, athletic musical special protection. achieve success without talent or life experience not applicable —is Bakke, v. Regents See Univ. Cal. 438 competition when there is no consider- 265, 298, 57 L.Ed.2d ation of qualifications at issue. (1978) (Powell, J., concurring) (“pref- 750 All of high Seattle’s school students programs may only erential reinforce placed must and will be in a Seattle stereotypes holding common that certain school.21 Students’ relative qualifications groups are unable to achieve success with- are irrelevant regardless because of their special out protection based on factor achievement, academic sports or artistic having relationship no to individual ability, experience, musical talent or life worth”); Croson, 488 U.S. at 109 any student who wants attend Seattle’s (“Classifications S.Ct. based race public high schools is entitled to an as- carry danger stigmatic harm. Unless signment; assignment any no they strictly are reserved for remedial District’s tethered to a stu- settings, they may promote fact notions Thus, qualifications. dent’s stigma no re- inferiority of racial a politics and lead to any particular sults from assign- hostility.”). racial Accordingly, dangers ment.22 that are Gratz, In to pre- Grutter order the, present university context —of sub- being vent race from used as a mechanical stituting preference qualifica- for proxy applicant’s qualifications, for tion-based competition absent here. —are individualized, required Court holistic con- (“Because Comfort, See at F.3d applicant sideration of each across a broad Lynn transfers under the Plan not are (of range may of factors which race be but merit, tied to the Plan’s use race does one). Grutter, 336-37, 539 U.S. imposing stigmatic not risk harm by fuel- 2325; Gratz, S.Ct. see 539 U.S. at ing the stereotype, groups that ‘certain (holding undergraduate unable to achieve special without .success policy narrowly admissions was not tai- ”) Bakke, protection.’ (quoting lored because the “automatic distribution 2733). 298, 98 S.Ct. points making of 20 has the effect of ‘the ’ race ... virtually decisive for factor of b. interests Differences every minimally qualified underrepre- minority applicant”) requirement sented The Court’s of individual- (emphasis add- ed). ized, applicant’s qualifica- This focus on an holistic review in Grutter is also more 21. Parents do 22. In Bakke, claim that their children Justice noted: Powell school, right particular have a to attend a nor Respondent's position wholly dissimilar Inc., they. Bustop could 439 U.S. at pupil neighbor- to that of a bused from his (rejecting any legally pro- comparable hood school to school in an- right tected to have children attend their neighborhood compliance other case, school). nearest under the cur- desegregation decree. Petitioner did not Plan, all students can attend a school rent arrange respondent to attend a different close to their home. Because there are multi- desegregate medical school in order to Seattle, ple in the north and south of School; instead, Davis Medical it denied proximity priority may students for whom ais may deprived him admission and have him elect as their first choice one of the schools in altogether their residential area that is not oversub- of a medical education. guaranteed assignment scribed and 438 U.S. at 301 n. 98 S.Ct. 2733. that school. Grutter, exchange “robust of ideas.” interest ad compelling to the

relevant (“the 2325; ex see robust at 123 S.Ct. Com by the law school 539 U.S. vanced di by viewpoint fostered (“[LJively at classroom change fort, of ideas” 418 F.3d (racial District’s it is to the than versity) form of learn is a more central discussion racially concentrat avoiding diversity and (which prefer the Soc ing in law schools schools). Grutter, 539 or isolated ed method) In setting.”). than in a K-12 ratic 2325. The Court 123 S.Ct. at context, diversity high viewpoint school “limit in did not the law school that noted understanding.23 and civic fosters racial qualities range of way ... the broad Benson, principal Eric example, For may be considered experiences and School, the Dis High Hale one of Nathan body di to student contributions valuable schools, testified popular trict’s most To 123 S.Ct. 2325. versity.” Id. diversity of racial in the class as a result made clear end, policy the law school’s this room, races and “students different many possible are bases that “[t]here inter backgrounds significant tend to have admissions, provide[d] and exam diversity class, of class. actions both in and outside have lived or trav of admittees who ples Hale, I came to Nathan there were When abroad, in are fluent several widely eled school, in in the reflected tensions adver personal overcome languages, have fighting disciplinary problems. and These hardship, exceptional sity family have have, extent, large problems kind of service, community extensive records of disappeared.” careers other fields.” and had successful addition, takes other the law school (internal marks and citations quotation Id. factors, diversity race and ethnici besides omitted). bases for diver multiple These ty, into consideration order achieve the “classroom discussion is sity ensure cultivating a its other livelier, simply more spirited, more interest — example, For group of national leaders. interesting when the stu enlightening and travel, fluency foreign lan extensive variety of greatest possible have the dents guages, community extensive service and Id. at backgrounds.” omitted). (internal successful careers in other fields demon citations excep that a candidate is somehow strate Plan, the District’s like the Although Gratz, ordinary, out tional or cf. designed to achieve the 273, 123 (disapproving U.S. at diversity, educational and social benefits of plan, undergraduate admissions including bringing viewpoints “different part, because of its failure to consider discussions,” experiences to classroom extraordinary applicant whether an was Reaffirming Diversity Ra see “Statement noting that if “[e]ven [a] student’s] tionale,” diversity in the law viewpoint ‘extraordinary artistic talent’ rivaled high school and school contexts serves dif Picasso, applicant of Monet or would overlapping ferent ends. In the law albeit receive, most, diversity opposed setting, viewpoint points” fosters five [high pe- classroom is school] The dissent believes that "the educational citizens. "The any, culiarly marketplace diversity, are much of ideas. The Na- benefits from if greater higher depends upon leaders trained at the educational level be- tion's future greatly magnified by through exposure ex- wide to that robust cause such benefits learning place change which discovers truth out of a that takes outside the class- of ideas Bea, J., dissenting, infra, tongues.” v. room ...." at 1207. multitude of Tinker Des Moines Dist., Community Independent Sch. This belittles the substantial role of 503, 512, contributing L.Ed.2d 731 school classroom discussions in (internal omitted). young quotation development to the of our marks educational

H83 noncompeti- therefore conclude that if a given appli- to an points the automatic 20 minority). tive, underrepresented voluntary assignment plan student is cant from an tailored, contrast, required narrowly the District otherwise a district need children, age both in all school not consider each student a individual- educate extraordinary, regard- ized, and the average holistic manner.24 leadership potential. less of individual The dissent insists that absent such indi consideration, has a second vidualized the District’s The District also compelling from the cannot serve a interest and is interest that is absent compelling narrowly protect not ensuring its tailored individuals university context— Bea, group not from classifications race. assignments replicate school do Se J., dissenting, infra, at 1209. This is a segregated housing patterns. attle’s flawed Amendm necessary reading to achieve view Fourteenth holistic review context, compelling diversity university in the ent.25 District’s interest point (of range of factors which is to avoid the harms of racial isolation for across broad one), germane not to all students in Seattle school district. may race be but pre explained, accomplish As we have compelling the District’s interest objective may racial District look to the ra venting racial concentration or iso consequences honoring cial the pre lation. Because race itself is the relevant (and ferred choices of individual students attempting consideration when to amelio parents). their It is true that for some segregation, rate de facto the District’s school, necessarily must focus on the students their first choice of based tiebreaker Comfort, geographical proximity, 418 on will be denied race of its students. See (holding grant that when racial diver because other students’ choices are F.3d at 18 only ed order to advance the overall interest sity compelling “[t]he is the interest — criterion, then, race; maintaining racially is a student’s diverse school en relevant beyond that is rollments. The Fourteenth Amendment individualized consideration interest”); preclude this context does not irrelevant to the Dist., diversity at the ex Irondequoit honoring v. Cent. Sch. Brewer W. (“If We reducing pense geographical proximity. at 752 racial iso F.3d unfortunately that “race standing forget alone—a constitutional must not lation is— matters,” 333, 123 ly goal, ... then there is no still permissible and it is race that is the rele achieving more effective means of S.Ct. race.”). here. than to base decisions on We vant consideration goal group characteristics is not calculates that individualized 25. Reliance on 24. The dissent administratively would be feasi- necessarily constitutionally consideration infirm under only would need to See, ble because 300 students jurisprudence. Fourteenth Amendment holistically. Though it is true be considered e.g., Regents, 528 U.S. Kimel v. Florida Bd. of subject to the race- that 300 students were 62, 84, 145 L.Ed.2d 522 tiebreaker, based it does not follow that Amendment, ("Under a State the Fourteenth require 300 would individualized con- those may rely age proxy qualities, as a for other Under the dissent's view of sideration. abilities, are relevant or characteristics that 3,000 way operate, the District should all legitimate The Con- State's interests. to the subject to be to holistic students would have preclude reliance on such stitution does not proper to determine their consideration generalizations. age proves to be an in- That assignment. or not this is Whether proxy case is irrel- accurate individual administratively record, is not clear in the feasible evant.'') ultimately we believe it is irrele- but consideration is vant because individualized required presented here. in the context instead dem- quota, into a but plan school differences be- sum, the contextual In sought the law school onstrated schools and selective high tween minority mass of a critical learning make the enroll higher of institutions “to realize the educational bene- for order hallmarks ill-suited first of the Grutter body.” Id. Simi- of a diverse student The re- fits tailoring inquiry.26 narrow our District’s 15 however, conclude that hallmarks, larly, are relevant we maining is not a or minus variance percent plus analysis. control our fixed it not reserve a quota because does Quotas Absence on their slots for students based of number of race, to enroll a critical instead seeks but Grutter, approved In the Court students in its of and nonwhite mass white part, because it plan, the law school’s in order to realize schools oversubscribed whereby quota, a fixed not institute did interests.28 its exclusively are reserved number of slots thereby insulating minority groups, for number slots a. No of fixed groups competition from members of those race-based tiebreaker The District’s with other candidates.27 a fixed number of slots does not set aside Although the law school’s 123 S.Ct. 2325. of for or white students a set number or nonwhite did not to admit seek students, The tiebreaker the District’s schools. minority during percentage of of season, long so as there are members used height of the admission’s underrepresented applicant race “daily reports” consult law school would oversubscribed school. composition pool particular racial for a kept track of the of that who If the number of students race incoming Id. at class. exhausted, that school is applied attention have 2325. The Court held this taken, if the 15 no further action is even did not transform the law to numbers Powell, J.). (opinion This is proposals S.Ct. 2733 26. The alternative dissent's strong diversity objectionable because no "matter how achieve the interests in il- District’s nonminority difficulty qualifications,” candidates of individualized consid- their lustrate the compete afforded the chance to context. For exam- are never eration in the groups applicants preferred for ple, with from the the dissent offers socioeconomic status narrowly acceptable Id. at 98 S.Ct. 2733. Be tailored and form the set-aside. more noncompetitive assignment diversifying cause to Seattle’s District's schools. Howev- er, nothing public high is not based on a student’s does more socioeconomic status dangers family’s qualifications, the that are a number from a tax relative than substitute holistic, quota substituting presented return race. There is no individu- for —of competi preference qualification-based approach. alized consideration under such absent here. tion—are underlying 27. Much like the rationale individualized, 28.Although contends that requirement holistic the dissent Court’s review, rigid, predetermined underlying aims for a the Court’s "tiebreaker the rationale students,” we prohibition apply and nonwhite quotas does not to the ratio of white appropriately viewed as a paradigmatic believe it is more race-based tiebreaker. affir goal.” goal "requires settings employment "permissible ad Such mative action — good within a higher learning— only a faith effort ... to come missions to institutions goal quotas they range itself.” disapproves of because demarcated the Court (internal quo- insulating minority candidates 539 U.S are viewed as omitted). The tie- nonminority tation marks and citation competition candi broad, range usually and the District's government resources breaker's dates for scarce 30% willingness the use of the tiebreak- applicant’s qualifi to turn off awarded on the basis of an grade are consistent with -jobs, promotions places in a law er after the ninth cations— Bakke, opposed rigid goal as to a ratio. 438 U.S. at school class.

H85 has not satisfied. achieve its percent variance been interest in racial is, applicant diversity has been pool prevent assign- That if the and the exhausted, required replicating no students are or ments from segre- Seattle’s particular high gated housing to attend a school patterns. recruited Faced with it the bring percent question in order to within 15 the of what constituted a criti- range year. or minus for that cal mass of in plus particular students this context, the District determined that a Moreover, the number of white and non- critical mass was best achieved in high white students the schools is flexi- adopting percent plus the 15 or minus and varies from school to school and ble demographics variance tied to of stu- year year.29 This variance in the dents in the Seattle schools. number of nonwhite and white students Thus, when an oversubscribed high throughout high the District’s schools is school has more than percent non- because, Plan, assignments under the (i.e., white per- students more than 15 parents’ prefer- based on students’ and cent percent above the overall 60 non- in play ences.30 The tiebreakers come into white population) student than less assignment process only the when a school students, percent white or when it Lewis, Morgan As is oversubscribed. percent has less than 45 nonwhite stu- Manager Planning, of Enrollment Techni- (i.e., dents than percent more below testified, Support Demographics, cal percent the overall 60 nonwhite student ... parents pick “If all the don’t [a] population) and more than 55 percent number, everyone gets a massive then students, white the school is considered in. ... And so it’s a case where the choice racially isolated, concentrated or mean- ... patterns, oversubscription [is] ing that a critical lacks mass of stu- reason the kicks .... Ev- [tiebreaker] dents needed “to realize the educational erything happens people when more want benefits of a body.” diverse student why they the seats. And want the seats sometimes we don’t know.” Parents attack the District’s of use percent plus or minus variance tied to

b. Critical mass population the District’s school demo- system, flexible pa- graphics they Within this where because believe that rental and student choices drive the as- District cannot use race at all its as- schools, signments particular signment rejected process. We have this however, argument, applying District seeks to enroll and maintain a Grutter relatively stable critical supra Alternatively, mass of white Gratz. See Part II.B. and nonwhite students of Parents goal each its contend the District’s of enrolling percent oversubscribed schools in order to 75 and 45 non- between Notably, percentage range. encompasses example, 29. the District's of white a wide For significantly year, percentage enrollment is more the 2000-01 school nonwhite grade percentage underrepresent- varied than nonwhite students in the ninth classes public high University ed four oversubscribed schools minorities to the admitted School, applied, Michigan’s after the racial tiebreaker was varied Law which remained rela- Ballard, percent percent from 54.2 at to 59.5 tively consistent. From 1995 to Franklin, percent to 40.6 Nathan Hale to percentage minority students enrolled in percent 55.3 at Roosevelt. percent, percent, the law school was 13.5 13.8 percent percent. 13.6 and 13.8 389-90, J„ (Kennedy, Slightly percent U.S. at more than 80 of all enter- contrast, dissenting). per- ing grade assigned the District’s ninth students were centage of white and nonwhite enrollment their first choice school. demograph on district policy conditioned 25 and 55 and between white students (+/-10-15%)” quota in its oversub- was not a because ics percent white not a quota, establishes to obtain the defendants’ efforts scribed it “reflects that the critical They note critical mass. in a learn diversity stable the benefits school Grutter by the law sought mass environment”); Belk v. Charlotte- ing 12 and smaller, consisting of between was Educ., 233 F.3d Mecklenburg Bd. of minority underrepresented of percent 20 Cir.2000) (4th (Traxler, J., dissent 287-88 class. in law school each to a written David J. ing) (citing book Armor, expert, Parents’ Forced Justice: however, ignores argument, Parents’ Law 160 Desegregation tai- and the that the narrow School admonition Grutter’s First, context-specific. (1995), per over 70 inquiry which observed that loring goals, which desegrega enrollment like the District’s school cent of the districts of the demographics Seattle are tied to plus of or minus plans tion use variance the law population, schools’ total student 34 percent greater); or C.F.R. 15 cf. 12 to 20 enrolling between goal of school’s 280.4(b) (defining “minority group § iso in underrepresented minorities percent of minority a “condition in which lation” as demographics was tied to the given year more than 50 children constitute group Second, tying in applicant pool.31 of its school”). of percent [a] of the enrollment to the District’s the use of the tiebreaker no empirically this and time-tested Given percent plus a 15 or demographics with public high critical mass in the tion of adopted trigger point, minus context, it would desegregation school in vol- the context of common benchmark to force the District to make little sense desegre- school untary and court-ordered percentages that constitut utilize the same expert As the District’s tes- gation plans. in school ed a critical mass the elite law tified, constitutes a context to determine what in participated of the cases I’ve Most public high critical mass Seattle ... worked with generally numbers schools. 123 composition reflect the racial (“[S]ome numbers, S.Ct. 2325 attention but, time, at the same school district more, not transform a flexible without does to allow the district sufficient tr[ied] system rigid quota.”) into a admissions flexibility that it not have to so would (internal quotation marks and citations regularly repeatedly move students omitted). simply on a short-term basis to maintain Accordingly, we conclude that the Dis- why we specific some number. That’s percent plus trigger trict’s 15 or minus ranges plus percent or minus see 15 desegregation. of the point demographics in most cases school tied to the Se- population quota. school is not a It is attle expert Even Parents’ testified that school context-specific, flexible measurement of country throughout districts determine diversity designed to attain and sufficiently desegre- whether a district is and non- maintain a critical mass white gated by looking “population to the of the high in white students Seattle’s Comfort, in question. district” See also (holding at 21 that a “transfer schools. 418 F.3d minorities; (approximately example, (approximately 520 15

31. For 662 applicants applicants percent) of the law school percent) of the 4147 law school 3429 minorities; underrepresented underrepresented were minorities. See Grut were ter, (Rehn (approximately percent) 539 U.S. at C.J., quist, dissenting). applicants underrepresented law school were

H87 District, Plan.32 The mindful of both Se- Plan and Race- Necessity future, history appropriately attle’s Neutral Alternatives places its focus here. In the 2001-02 us to con- tailoring requires also Narrow year, integration op- tiebreaker necessity of the race-based sider the (that is, high erated three three there question and whether policy oversubscribed and devi- schools were effective, alterna- race-neutral equally than percent ated more tives. ratio of dis- white nonwhite students trict-wide). integration tiebreaker Necessity a. the Plan served to alter the imbalance in the the com argues District operated minimally schools in which it in a directly that it seeks are pelling interests tiebreaker, intrusive manner. The there- tiebreaker. The by the race-based served fore, successfully achieved the District’s allows the District to balance tiebreaker compelling interests. among high parents’ choices students’ inter its broader schools with ii. distinction White/Nonwhite and social achieving the educational ests^— argue paints Parents diversity spe and the benefits benefits context, by distinguishing with too broad a brush secondary cific to the school students, white nonwhite pat between a return to enrollment discouraging racially segregat taking diversity without into account the on Seattle’s terns based However, housing pattern. group. ed within the “nonwhite” diversity the District’s choice to increase Need race-based tiebreaker i. rooted in along the axis is white/nonwhite history reality and current of de from its con- Seattle’s When the District moved Plan, segregation resulting to the current see facto from Seattle’s trolled choice I.A, predicted Part it that families supra segregated housing patterns. to choose schools close to their narrowly would tend tai- distinction is white/nonwhite Indeed, this feature was seen as homes. movement of students prioritize lored to involve- way parental to increase positive city to south of from the north of the However, espe- ment. unfettered city versa. This and vice white/nonwhite choice— cially neighbor- tiebreakers based on history focus is also consistent with hood or distance from a school'—created desegregation measures public school enroll- the risk that Seattle’s in a throughout country, as reflected again do no more than reflect ment would regulation defining “[m]i- current federal su- segregated housing patterns. See its “a condition in nority group isolation” as pra Part II.C.2. minority group children constitute which percent more than 50 of the enrollment segregation

It is this de facto residential school,” distinguishing among without axis that the Dis- across a white/nonwhite included within the categories the various historically and that trict has battled “minority group.” 34 C.F.R. definition of by making to ameliorate the inte- seeks 280.4(b); Grutter, § open choice see gration part tiebreaker of its State, Although insufficient attention to the roles of 32. we characterize it as de facto officials, creating what segregation, local and the Board in we are mindful of Jus- residential patterns Education self-perpetuating of residen- in Board of are now tice Marshall’s dissent 237, 263, Dowell, segregation.” v. ... the racial tial “The conclusion that (internal identity quadrant S.Ct. 112 L.Ed.2d 715 the northeast now sub- omitted). pays 'personal preference[s]’ citation sists because of analysis was Implicit school 2325. the Court’s (noting the law “minori- a critical mass of sought to enroll toward the univer- a measure deference students,” Afri- category that included ty sity’s identification of those values.33 See Americans, and Native Hispanics can Here, 328, 340, id. at Americans); (“By Comfort, 418 F.3d reasonably that the District record reflects diversity along the increasing white/non- concluded that a race-neutral alternative axis, Plan reduced racial tensions white goals. would not meet its benefits. produced positive educational tailoring require does not Narrow Using poverty i. as an alternative among every racial Lynn diversity ensure diversity measure of well.”) (emphasis subgroup and ethnic The record demonstrates that the School added). using poverty Board considered tie- in place breaker of the race-based tie- alternatives b. Race-neutral concluded, however, breaker. It that this explained that the Court proxy compel- device not achieve its would serious, good tailoring “require[s] narrow ling diversity, achieving interest faith workable race-neu- consideration of Although and had other adverse effects. tral will achieve the di- alternatives that study proposal there was no formal versity university seeks.” 539 U.S. at staff, by District Board members’ testimo- added). 339, (emphasis 123 2325 On S.Ct. ny legitimate why revealed two reasons hand, tailoring the other does “[n]arrow rejected poverty the Board the use of to every not conceiva- require exhaustion First, goal diversity. reach its of racial ble race-neutral alternative.” Id. Further- that insulting Board concluded it is to more, made clear that the uni- the Court minorities and often inaccurate to assume versity required adopt not to race- was poverty minority correlates with sta- neutral measures that would have forced it Second, tus. group for the of students for to sacrifice other educational values cen- 340, poverty tral to Id. at whom its mission. 123 S.Ct. would correlate with minori- ” Supreme repeatedly (quot 33. The Court has shown districts is vital national tradition.’ Brinkman, deference to school officials at the intersec ing Dayton Bd. Educ. v. 433 U.S. protections tion between constitutional 406, 410, 2766, 97 S.Ct. L.Ed.2d 53 851 policy. generally Wendy educational See Par (1977))); Fraser, see also Bethel Sch. Dist. v. ker, Grutter, Connecting the Dots: School De 675, 683, 478 U.S. 106 S.Ct. 92 L.Ed.2d Federalism, segregation, Mary 45 Wm. & (1986) ("The determination of what man (2004). L.Rev. 1691 The theme of local con speech ner of in the or in the classroom public trol over education has animated Su assembly inappropriate properly school See, Brown, preme jurisprudence. e.g., Court board.”); rests with the school LaVine v. (directing 349 U.S. at local District, (9th Blaine School 257 F.3d officials, oversight, with court to devise Cir.2001) ("In context, the school we have segregation light remedies for in the of "var granted educators substantial deference as to problems”); ied local school Milliken v. Brad speech appropriate.”) (citing what 717, 741-42, ley, 418 U.S. Kuhlmeier, quoting Sch. Dist. v. Hazelwood (1974) ("No single L.Ed.2d 1069 tradition in 260, 267, 98 L.Ed.2d public deeply education is more rooted than (1988)). Supreme These decisions Court schools; operation local control over the suggest secondary occupy schools autonomy long thought local has been essen unique position in our constitutional tradi community tial to both the maintenance of reason, tion. For this we afford deference to support concern and for schools and to judgment the District’s similar to that which quality process.”); of the educational Free man, ("As university. Grutter afforded the 503 U.S. at S.Ct. 1430 we 328-29, observed, long autonomy have 'local of school 539 U.S. at 123 S.Ct. 2325. H89 Moreover, status, given segre- have Seattle’s implementation would ty choice. gated housing patterns, by prioritizing students’ by high school been thwarted neighborhood/regional their reluctance reveal school model where understandable peers. to their assigned status students are to schools close to socioeconomic homes, League their plan Urban did diversity compelling racial is a Because sufficiently not ensure the achievement interest, may permissibly District seek compelling the District’s interests racial man narrowly if in a tailored it does so diversity and avoidance of racial concen- require do not the District ner. We tration or isolation. As one member achieving compelling interest of conceal its testified, “[it] School Board would become avoiding racial concen diversity all again. Controlled Choice over That’s through the use of tration or isolation was, basically what Controlled Choice [ ].a proxy pov device” such as clumsier “some regional plan; your it controlled options (Boud Comfort, at 29 erty. See 418 F.3d using regions geography.” It was in, C.J., concurring). permissible

therefore District League plan ii The Urban reject a plan comported that neither n nor priorities its achieved its Parents also assert interests. formally have more considered should League proposal, which did

Urban Lottery in. integration tiebreaker but eliminate additionally Parents contend in this factors. merely considered it after other court that the District should have consid- comprehen- was a League plan The Urban using lottery assign ered students to seeking quality to enhance the sive the oversubscribed As an focusing schools. education Seattle’s matter, quali- initial we note that Parents did not organization, on educational teacher interaction, raising cur- ty, parent-teacher argue before the district court that a lot- standards, broadening substantially ricular tery was a workable race-neutral alterna- magnet availability specialized the of and tive that would achieve the Districts’ com- (which a programs could attract broader argue on pelling interests. Parents now of to undersub- cross-section students however, lottery appeal, that a would schools) supporting and extra-cur- scribed interests achieve the District’s development. plan proposed ricular The to to the race-based having without resort the reliance on decreasing School District’s that They ask us to assume tiebreaker. by pairing assignment process race the percent of all approximately 82 because neighborhoods particular with schools to one of want attend Seattle’s students creating type neighborhood/regional a schools, makeup of this oversubscribed League model. Under the Urban school applicant as that of the percent, well initially given would be plan, preference school, for each mirrors the demo- pool paired in their choosing students a school (60 percent white graphics of the District racial tiebreaker region, existing and the nonwhite). percent Employing this be demoted from second to third would to assume assumption, Parents also ask us resolving any remaining process lottery drawing from this that a random oversubscription. plan suggested also body a in each pool produce would student adding high an eleventh school. that falls schools oversubscribed plus or percent the District’s 15 within they members testified that re- Board assumptions, These how- variance. jected plan high because of the value minus ever, are un- not supported indeed, and student are places parental the District — (internal integration”) exam- factual record. For for citation by the dercut — omitted). explained ple, Olchefske Superintendent indicate that more patterns that District home. That schools close to people choose c. The use race District’s pool applicants that

would mean the demo- skewed favor of would be posits The dissent variables surrounding residential graphic of the race, example, use instead of for could is, pool for the applicant area. That embracing the San Francisco school dis- oversubscribed north area model approach possible trict’s as a higher a of white would have concentration integration would meet the dissent’s pool for the applicant Bea, J., dissenting, infra, at criteria. high area oversubscribed south Perhaps experi- n. 26. San Francisco has higher of non- would have concentration (however enced success that school district Thus, sampling white students. random it) in its defines multi-variable —the racially would pool from such skewed details and evaluations of which are not in racially produce body. student skewed the record. District is free to consid- testified, lottery As one Board member er the San Francisco model when en- was not viable alternative because “[i]f gages in the annual of its own Plan. review majority applicants overwhelmingly However, assuming even that San Francis- lottery, you your lottery— have a then plan working, co’s that does mean your pool lottery going kids are it must be other cities in used overwhelmingly majority. have a We gained other states. Much can be diversity goal.” locally various states employing appro- Although the the burden of District has priate means to desirable achieve ends. demonstrating narrowly Plan is its system, In our where states are considered Gratz, tailored, see 539 U.S. experiment laboratories to be used 2411, it every need not “exhaust[] myriad approaches resolving social conceivable race-neutral alternative.” problems, certainly punish we should not 123 S.Ct. 2325. adopting one school district for not Parents’ belated and that a bald assertion approach of another. Justice Brandéis lottery compel could achieve the District’s well, said it interests, ling without any sup evidence to power There must be in the States and claim, port their fails that to demonstrate remould, to through experi- the Nation lottery a a viable race-neutral alterna mentation, practices our economic and (dis tive. id. at changing institutions to social meet and missing the race-neutral alternative needs stay experimen- economic .... To “percentage plans,” by the advocated Unit things tation in social and economic is a brief, ed in an States amicus because grave Denial of the responsibility. right explain “United States not ... how [did] experiment may fraught with seri- plans such could graduate work for consequences ous the Nation. professional schools”); It is Comfort, 418 F.3d happy one of the (noting Lynn rejected at 23 that incidents federal the use of system courageous a that a lottery place single of the race-based tie State choose, may, if its serve holding “Lynn keep breaker and that must citizens as a possible they laboratory; try abreast of social and alternatives as novel eco- ... it develop prove experiments but nomic risk to need without impracticability every model country. conceivable rest of the

H91 Liebmann, racially Ice v. suit of a balanced New State Co. research sam- 262, 311, ple). 76 747 L.Ed.

(Brandéis, J., dissenting). Undue Harm I. sum, good the District made a faith A narrowly tailored ensures al effort to consider feasible race-neutral that no any member of racial group is rejected them permissibly ternatives unduly harmed. 539 U.S. system involving sibling of a favor argue every S.Ct. 2325. Parents preference, a race-based tiebreaker and a student who is denied his or her choice of proximity preference. long Over the his schools because of integration tie tory of the District’s efforts to achieve breaker a constitutionally signifi suffers schools, desegregated experimented it has agree cant burden. Supreme We with the alternatives, many including magnet however, Washington, Court of in its as special-interest programs, and other which sessment that the Plan imposes District’s employ, it continues to and race-conscious minimal burden that is shared equally districting. racially But when diverse IV, all of the District’s students. Parents (or system goal is the racial concen 72 P.3d at 159-60 (noting the burden problem), tration isolation is the there is of not being allowed to attend pre one’s no more effective means than a consider ferred school is shared all students ation of race to achieve the solution. Even noted, equally). As that court it is well that, expert you conceded “if Parents’ that “there no right [is] established under race, may possible don’t consider it not be Washington law to attend a local school or integrated to offer an option stu the school of the student’s choice.” Id. at you dents .... guarantee [I]f want Indeed, schools, 159.35 unlike uni you Superin have to consider race.” As versities, compulsory have tradition of stated, diversity, tendent Olchefske “when assignment. Friday, See Bazemore v. meaning diversity, is part of the 385, 408, 92 L.Ed.2d educational environment we wanted to cre (1986) (White, J., concurring) (noting ate, you I think our view was took that customarily “school boards have the you issue head used race as used— power to create school attendance areas part you of the structures developed.” designate and otherwise the school that The logic is self-evident: When racial di attend”). particular may When versity principal element the school applicant’s qualifications are not under interest, district’s then a nar all, consideration at there is no notion that rowly plan may explicitly tailored take place one student is entitled to a Regents race into account.34 Hunter v. Cf. (9th Cal., Comfort, particular school. See 418 F.3d Univ. F.3d (“The Cir.1999) narrowly at 20 denial of a transfer under the (upholding tailored policy elementary markedly the of an Plan is ... [District’s] admissions different operated spot as a research laborato from of a at a unique the denial school— institution.”). ry explicitly in pur- considered race selective educational —that urges, way Subject statutory 34. The dissent “The to end dis- 35. to federal and constitu stop discriminating by requirements, structuring public edu crimination to race.” tional Bea, J., dissenting, infra, long at the the 1221. More cation has been within control of stated, properly way segregation part police powers. the to end states as of their traditional 27, stop separation Connolly, to The Seattle 113 U.S. 31- the races. See Barbier v. (1884) (describ attempting precisely school district is to do 28 L.Ed. 923 ing police powers). that. the states' traditional stu- necessary to achieve are still that the race- erences Moreover, undisputed it is The District’s body diversity.” Id. uniformly dent not bene- does tiebreaker based It revisits Plan includes such reviews. the detriment of group to race or fit one its annually has demonstrated schools, Plan white students At some another. responsive parents’ to ability to be nonwhite stu- over preference given the con- patterns and to schools, students’ choice and, nonwhite stu- dents, other at example, in For stu- cerns of its constituents. over white preference given dents are than normal number higher 2000-01 school when example, For dents. schools, the selected the same were as- of students students more white year, 89 race- by increasing the Franklin, responded Board one of Seattle’s most signed to a 15 percent to schools, trigger from have been as- based than would popular popula- tiebreaker; from the school percent 107 more deviation signed absent tion, that turns off adopting Bal- the thermostat assigned to were nonwhite students has as the school popular the tiebreaker as soon lard, most another of Seattle’s percent plus the 15 or minus assigned come within schools, have been than would tiebreaker; by using the tiebreaker trigger point nonwhite more absent the class. solely incoming grade ninth to Nathan Hale assigned were students assigned absent the have been than would concern for respect to the dissent’s With tiebreaker; more nonwhite stu- and 82 J., Bea, dissenting, “logical point,” end to than assigned Roosevelt dents were this infra, at like Justice O’Connor the tiebreaker.36 would have been absent hope years that “25 court shares (1) now, will preferences the use of racial sum, the District is enti- from because in necessary to further the any longer of its no be assign all students tled to Grutter, (2) today.” 539 U.S. schools, approved is entitled to attend terest no student expect We the tiebreaker at 123 S.Ct. 2325. any specific school Plan, to review its uniformly any race or District will continue benefit does presume, and we as did the Court Grut- of individuals the detriment group ter, another, unduly that school officials will demonstrate the tiebreaker does not monitoring the good faith commitment to in the District. harm continued need for the race-based tie Provision 5. Sunset terminating breaker and its use when 343, 123 need ends.37 See 539 U.S. S.Ct. narrowly A tailored must be 2325. also in time. scope, limited not but 2325. III. Conclusion held in Grutter that this dura-

The Court reasons, we hold that by “periodic foregoing can met For the requirement tional Plan School pref- adopted whether racial Seattle reviews to determine earlier, prefer- Court's vision in Grutter that racial detailed the Board’s decision As change trigger point for use of the tie- necessary longer be in 25 ences will no plus percent plus or minus 10 breaker Ginsburg years even sooner. As Justice —or percent the effect of render- or minus 15 had observed, “As education in mi- lower school deseg- High ing School neutral for Roosevelt nority improves, an increase in communities Thus, regation purposes. the tiebreaker did [highly qualified competi- the number of assignments High to Roosevelt not factor into may anticipated.’’ be tive] year. the 2001-02 school School in J., 346, (Ginsburg, U.S. at 539 concurring). noting plans like the Dis- It is worth achieving may actually contribute to trict’s

H93 is con- Nor it assignments quotas. District for does involve racial E.g., Bakke, Regents the use of the race-based stitutional and Univ. Cal. v. 265, narrowly 2733, tailored to achieve 438 tiebreaker is U.S. 98 S.Ct. 57 L.Ed.2d (1978). the District’s interests. Ac- 750 cordingly, we AFFIRM the district court’s Comm., 1, Lynn v. Sch. 418 F.3d Comfort judgment. (1st Cir.2005) (Boudin, C.J., 27 concur- ring).

AFFIRMED. meaningful These differences. KOZINSKI, Judge, concurring: Circuit government When the seeks to use racial My colleagues majority in the and the oppress classifications to blacks or other extensively dissent have written and well. minorities, justification no conceivable will exacting they standard are at- Given See, sufficiently compelling. e.g., Yick tempting apply, say I cannot that either 356, 374, Hopkins, Wo v. 118 U.S. 6 S.Ct. clearly wrong. something But there is (1886). 1064, 30 Similarly, L.Ed. 220 when to apply unreal about their efforts lawyers use peremptory challenges to ex- cases, teachings prior Supreme Court jurors race, particular thereby clude of a contexts, very all decided different denying right them the to participate in here. I hear thud of plan issue service, government they justify must square pegs being pounded into round challenges objective, their based on non- Ultimately, analysis holes. neither seems considerations; justifications based entirely persuasive. hand, rejected on race will be out of no compelling they might matter how seem. I colleague start as did our eminent 79, Kentucky, See Batson v. 476 U.S. 85- Circuit, in Judge Chief Boudin of the First (1986). 88, 1712, 106 S.Ct. 90 L.Ed.2d 69 commenting on a highly-analogous plan government segregate When seeks to adopted by city Lynn, Massachu- races, Johnson, inas the courts will look setts: great justifications skepticism at the plan at [The] issue this case is funda- in support programs, offered of such mentally different from anything almost reject they will them when assump- reflect Supreme previously that the has Court tions about the conduct of individuals not, addressed. It is like old-fashioned based on their race or skin color. See laws, op- racial discrimination aimed at Johnson, (Stevens, J., 125 S.Ct. 1154 blacks, pressing e.g., v. Brown Bd. of dissenting) (concluding that California’s Educ., 483, 686, 347 U.S. 74 S.Ct. policy racially segregating “sup- inmates (1954); L.Ed. 873 Strauder v. West Vir- ports suspicion policy that the is based 303, (1880); ginia, U.S. L.Ed. 664 stereotypes on racial and outmoded nor, action, fears like modern affirmative does dangers integration”). about the of racial give group edge seek to one racial (either government engages When the in racial remedy past over another dis- gerrymandering, only keeps it not purposes). E.g., crimination or for other Constructors, Pena, apart, races but racial ten- Adarand Inc. v. exacerbates 200, 2097, by making proxy political sions race a U.S. 115 S.Ct. 132 L.Ed.2d (1995). Reno, By power. contrast to Johnson v. See Shaw v. 509 U.S. — -, California, 113 S.Ct. 125 L.Ed.2d 511 (“When (2005), obviously 160 L.Ed.2d 949 a district is created sole- in- segregate persons by ly perceived does not race. to effectuate the common Loving Virginia, group, See also v. terests of one racial elected officials (1967). likely pri- that their 18 L.Ed.2d 1010 are more to believe the real- plan light for the in of only reasons represent the is to obligation mary to it. gave that rise world circumstances than their rather group, that members whole.”)- Programs seek- a constituency as standard, this I have no trouble Under by giving pref- them minorities ing help to plan constitutional. finding the Seattle Adarand, see, contracting, e.g., in erences officials, people the Through their elected see, Baklce, benign education, e.g., plan empha- adopted have Seattle motivations, in their they may be though choice, such yet tempers sizes school other, each and cast against pit the races in to ensure that choice somewhat order to ability of minorities com- the on doubts city’s population. schools reflect the footing. majority equal on an pete with me stirring melting pot of the strikes Such eminently sensible. as none of these plan suffers The Seattle op- not meant to certainly is defects. It shows, experi- and common The record minorities, does it have nor press us, that students tend to select ence tells away gov- is turned No race effect. homes, to their which the schools closest or services. ernment service compo- reflect the means that schools will races; to the con- segregate does not they are neighborhood of the where sition integration. trary, promote it to seeks however, Neighborhoods, do located. give members of attempt There is no composition city as reflect the racial political power based particular races Seattle, many “as other whole. competition be- is no skin color. There cities, often live minorities and whites races, given no is race tween neighborhoods.” Comfort, 418 different That a student another. preference over (Boudin, C.J., concurring). To at 29 F.3d may of his choice be is denied the school gravitate that students to the the extent stig- no racial it carries disappointing, but homes, near their the schools will all says nothing at about ma and composition have the same racial ability. pro- or aptitude individual’s This means that student neighborhood. criterion, race as a but gram does use patterns interacting primarily with pub- of each population that the to ensure their own race that are first members of city’s roughly lic reflects racially developed by living isolated composition. and exac- neighborhoods will be continued experience. the school erbated plan carries none of

Because the Seattle Supreme Court has found baggage deny importance It difficult to it objectionable applied where has cases children, formative teaching during their I scrutiny tailoring, strict and narrow years, respectfully collegi- how deal plan under a rational would consider the ally peers with of different races. Wheth- By rational ba- basis standard of review. interest er one would call this sis, applied I don’t standard mean the merely highly rational one strikes me courts shut regulations, economic where reality more than semantics. The as little justifi- invent eyes reality their or even patterns is that attitudes and of interaction pro- upholding government and, cations for early in in a multi- developed life see, ours, v. Lee grams, e.g., Optical society Williamson cultural and diverse such as Okla., Inc., 75 S.Ct. great developing there is value abili- (1955), successfully 99 L.Ed. 563 robust and realis- individuals ty but to interact review, see, It e.g., City very tic rational basis different from oneself. who are Ctr., Inc., student, to Living important Cleburne v. for the individual Cleburne sure, vitally important for us 87 L.Ed.2d 313 but is also society. (1985), the actual as a where courts consider

H95 true, decided, suggests, hope I may seemingly It as the dissent would that those categorical pronouncements by ap- are influenced far more will not be that students home, plied without consideration in the church and of whether experiences their they beyond make sense the circumstances they attend outside of school. social clubs that occasioned them. the fact that time negate But this does not spent in school and on school-related activ- Supreme When the Court does review ities, may up take as much as half of which it, plan, the Seattle or one like I hope the hours, has waking a student’s nevertheless justices give thought by- will serious significant impact on that student’s de- passing always strict —and almost dead- The school environment forces velopment. ly scrutiny, adopt something and more — compete and cooperate students both to only akin to rational basis review. Not classroom, during the as well as extracur- a plan promotes mixing does the ranging ricular activities from football to races support suspi- deserve rather than often forensics. Schoolmates become hostility cion judiciary, from the but friends, romantic partners; rivals and there much returning to be said for learning to deal with individuals of differ- primacy on policy matters of educational capacities various cannot ent races these local Long past day officials. is the when help spirit but foster the live-and-let-live losing an election or a legislative vote on a experi- that is the essence of the American hotly contested issue was considered the objective I is a rational ence. believe this end of the matter —at least until the next system every for an educational bit as election the might when voters “throw the — Rs, teaching rational as the three ad- nowadays, rascals out.” Too often an elec- chemistry or driver’s education. vanced tion or a precursor vote is mere Schools, all, simply prepare after don’t stu- litigation, dispute with the outcome of the education, though they for further dents judges not known until decide the case that; certainly good can and should do many years later. life, prepare students for instill- scrutiny Whatever else the strict stan- ing skills and attitudes that will serve do, may certainly dard of review most year long college.

them after their first encourages resort to the courts often Judge To borrow Boudin’s words once delays implementation of a program “far from again, plan origi- here is years. complex exacting The more nal evils at which Fourteenth Amend- review, standard more uncertain the. ment was addressed.... This is not a case outcome, in- greater and the are the which, against background of core centives for the to bloat the record parties all principles, doubts should be resolved exhibits, expert depositions, reports, against constitutionality.” Comfort, 418 documents and various other materials (Boudin, C.J., concurring). F.3d at 29 I they hope eye judges will catch the acutely Supreme am mindful of the Court’s ultimately who decide the issue. This is a strong admonition last Term that perfectly example, litigation fine hav- all racial classifications must be ad- far, ing years generating taken over five so judged scrutiny under the strict standard published opinions judges from the Johnson, of review. at 1146 the matter in the who have considered eases). (citing Supreme meantime, But the Court’s federal and state courts. necessarily forged by hold, opinions one put was and at least it; presented completed cases where the case at and will class has entered have respects hand differs in material career without ever its entire Supreme previously being those the Court has affected it. preference adopt resolving to of law Boudin’s for such dif- tempting rules it’s

While ficult in issues trial and error real the say hotly ultimate on us the give world, by experts than jousting rather questions, we should political contested plan the courtroom. it comes to a When infallible, we are not nor keep in mind gives as plan such this —a Ameri- of repository ultimate wisdom. are thewe healthy can melting pot a stir without ben- officials, who are much closer to Elected efiting burdening any particular or ground polit- than we are—and whose zero group the decision to would leave those —I approv- and flows with ical ebbs power much community, closer to the affected al the realities of the voters—understand have power modify who to reverse or can, far no of the situation better than we policy prove unworkable. It should many depositions expert and matter how on this I is basis that would affirm the in the our reports may quiet we read judgment of the district court. It therefore us to chambers. behooves approach presented issues such those BEA, Circuit whom Judge, with Circuit healthy modesty a dose of about here with KLEINFELD, Judges TALLMAN and ability past pre- our to understand or join dissenting: CALLAHAN chary future. It should dict the make us I respectfully dissent. scrutiny about use of the strict standard of outset, important At the it is to note review, proclaims us the ultimate which what this The case is not about. idea that gives of the issue those who arbiters civic, social, children will gain perhaps oppose question policy every incen- by attending educational skills schools with litigation, tive to paraphrase to turn Clau- proportion of students of other ethnici- sewitz, politics by into a continuation of races, ties and proportion which reflects other means. they move, the world in will which is a Judge to To resort Chief Boudin’s words grounded notion may common sense. It time, one are faced last “we with a local if generally, universally, be not accepted.1 experiment, plausible pursuing goals by But that is not the issue here. The issue may that are not here whether this idea squarely imposed novel means con- by government coercion, rather than socie- by past Supreme precedent. demned Court conviction; tal whether and their that the ... problems addresses choose, parents may or gov- whether their real, are and time is more likely than court may ernment choose them.2 us whether hearings to tell the solution is ” good Comfort, one.... (“Dis- 418 F.3d at 29 In the District Seattle School (Boudin, C.J., trict”), I concurring). Judge share some schools are oversubscribed view, dissenting society 1. pp. For a see to 1204- individuals. Adarand Con- infra 226, Pena, 1205. structors v. 515 U.S. 115 S.Ct. (1995) ("More 132 L.Ed.2d 158 than good required gov- motives should be country's 2. when struggle our Because of ra- with by way ernment to allocate resources injustices seeks its compelled cial division and the system."); government jure segregation, explicit racial classification de we must be States, suspicious any Olmstead v. United especially compulsive gov- (1928) (Brandéis, race, program upon 72 L.Ed. 944 ernment based even J., program dissenting) supposedly ("Experience when should such benefi- teach us to guard liberty protect cial. Good intentions cannot be most on our insulate the when government's purposes use of race from commands Government's benefi- Clause; Equal history greatest dangers Protection ... liberty is rife cent. lurk zeal, examples government men well-intentioned insidious encroachment programs grievous well-meaning which later caused understanding.”). harm without but

H97 others, e.g., Majority op. than so the higher per- and in demand As fectly ploy, understandable rhetorical assign some District uses tiebreaker majority continually students, others, charged uses those ninth-grade terms segre- when there has been no such operates those schools. The tiebreaker gation in the Seattle schools textual solely the basis of the student’s race. legal Throughout sense.4 desegre- fact, differentiating rather than be- cases, gation Supreme the U.S. Court stat- African-American, Asian-American, tween jure ed that the remediation of de American, Latino, or Native Caucasian justified segregation the use of racial clas- students, the tiebreaker classifies students Pitts, v. sifications. Freeman 503 U.S. only as “white” or “nonwhite.”3 The Dis- 494, 467, 1430, 112 S.Ct. 118 L.Ed.2d 108 racially trict seeks a balanced student (1992). differentiating factor “[T]he be- white, children; body of 40% nonwhite 60% jure segregation de tween and so-called de excludes white or nonwhite the tiebreaker segregation ... is purpose or intent an if students from oversubscribed school facto segregate.” Keyes v. School Dist. No. pre- their admission will not further that 1, 189, 208, 2686, 413 U.S. 93 S.Ct. 37 ferred ratio. (1973) (emphasis L.Ed.2d 548 in original); Notwithstanding majority’s fervent Charlotte-Mecklenburg see Swann v. Bd. plan, defense of that is en- Educ., 1, 17, 1267, 402 91 U.S. S.Ct. 28 of gaged simple balancing, racial which the (1971) (“ L.Ed.2d 554 ‘Desegregation’ ma- Equal Protection Clause forbids. The assignment means the public students to jority opposite can arrive at the conclusion schools and within such schools without only by applying a watered-down standard race, color, regard religion, to their or improperly labeled “strict scru- review— origin, ‘desegregation’ national but shall tiny” contains none of the attrib- —which assignment not mean the students to stringent to our utes common most stan- in order to overcome racial respectfully disagree of review. I dard imbalance.”) added). (emphasis majority’s gentle with the endorsement of “Segregate” is a transitive verb. It re- the racial tiebreaker and would instead to do an act quires actor which effects Equal hold the District violates the Protec- segregation. See OxfoRD English DICTIO- tion Clause whenever it excludes a student (2d ed.1989) (“segregate, v. 1. a. NARY solely from school the basis of race. (a separate person, body To or trans.: persons) general body, class of from the I. class; particular apart, from some to set seclude”).5 note, isolate, introductory jure seg- As an I call attention Instead of de majority’s frequent regation, majority is to the misuse of the what describes schools,” racial in the District’s schools “segregation,” “segregated terms imbalance See, makeup. residential “segregated housing patterns.” Seattle’s suggests housing puzzling major- even that Seattle’s This makes all the more No one ity’s assertion that "that the District has a jure seg- has ever been affected de market securing interest in the education- regation. (and ethnic) al and social benefits of racial diversity.” Majority op. (emphasis 1166 add- 5.Indeed, segregation” "de term facto ed). simply There is no ethnic tiebreaker. oxymoron. perhaps somewhat of an That is preceded why Supreme Court the term jure segregation 4. Remediation of de is not at Keyes, here; qualifier "so-called.” See 413 with the parties issue concede the District’s jure segregated. S.Ct. 2686. schools have never been de U.S. 93 (1) race discrimi- the effects of other argue plan: much for course, it is easier Of much than Se- plans than for nation were worse “segregation” to end measures (2) “racial Es- visited on imbalance.” attle’s and the effects were to avoid measures in view of the U.S. this so races. pecially is certain frequent pronouncements Supreme Court’s in these two But the difference reflected Equal balancing” violates “racial “[Tjhere is no categories are irrelevant. Bolling- v. See Grutter Protection Clause. Protec- exception Equal to the de minimis er, Race discrimination is never tion Clause. ” (“[Ojutright bal- L.Ed.2d 304 Monterey Co. v. a ‘trifle.’ Mechanical unconstitutional.”); ... ancing patently (9th Cir.1997). Wilson, 125 F.3d Freeman, Second, pro- Fourteenth Amendment (“Racial is not to be achieved balance rights not the rights, tects individual sake.”); Regents Univ. its own groups. races or certain Bakke, 265, 307, 98 S.Ct. v. 438 U.S. Calif Further, “plan segregate that a does J.) (Powell, 2733, 57 L.Ed.2d 750 by justify race”7 does not it persons (“If purpose is to assure within petitioner’s a refusing qualified school admission to body specified percentage its student some belong he does not to a scholar because merely of its particular group of a because segregation no particular race. There was origin, preferential race or ethnic such school, when by race Cal Davis medical rejected not insubstan- purpose must be improperly Bakke was refused admission. facially Preferring tial but as invalid. Bakke, 2733, 265, 57 438 U.S. 98 S.Ct. See group members of one for no reason L.Ed.2d 750. origin other than race or ethnic is discrimi- nation for its own sake. This the Constitu- Also, quite say it accurate to forbids.”). tion quo- does not “involve racial Seattle 8 quota per- The numerical is the by It the reader tas.” should be remembered majority opinion centage by question’s that one can no which the school in actively “segregate” person more without composition racial differs from the school doing segregation sepa- than one can target.9 calling quota, district’s Not it egg rate an without a cook. “A something does not make it other. ... by any rose other name etc.” Boudin,6 Judge concurring Like in his opinion distinguish to Judge Kozinski tries Perhaps Supreme adopt Court will past Supreme involving Court cases relation” for review of race- “rational basis focusing discrimination the effects by government, based discrimination based discrimination, rather than the fact of concurrence’s of what is “real- on the view the discrimination. or what are “real-world circum- istic” above, however, As indicated categories for them two stances.” This creates certainly given it has no such indication.11 different from the effects of the Seattle Comm., Lynn reality” or 6. See v. Sch. 418 F.3d 10. What is "the or "realistic” Comfort C.J., (1st Cir.2005) (Boudin, concur- usually a rhetorical tool for "real-world” is ring). dressing objective up own view as one's therefore, presentable. impartial, and more Id. 7. -(citing Comfort, Adarand, Concurrence e.g. 515 U.S. at 115 S.Ct. 11. C.J., (Boudin, concurring)). 418 F.3d at 27 244, 270, Bollinger, v. Gratz - (discussion pp. why 9. See 1212 1214 infra quo- the racial ta). used Seattle is a tiebreaker does, ... deny any person if it one doubts that it will do so “No State shall

But “melting pot” metaphor. jurisdiction based on a equal within its protection Const., XIV, of the laws.” U.S. amend. now, “melting pot” the American Up to § 1. right equal protection up people voluntarily has been made one, individual and so where federal or country from different coming to this governments classify state person ac- lands, aside their differences and putting cording group to race—“a embracing our common values. To date classification people long recognized has not meant who are told whether as in most circumstances non-white, they are white where irrelevant prohibited” and therefore —we go to school based on their race. review such state action under the most judicial is, “detailed inquiry”' under suggestion political that local forces —-that scrutiny. strict 539 U.S. at employ racial dis- should decide when 2325; Johnson, see Miller v. governmen- crimination the allocation of 900, 911, certainly nothing tal resources is new 132 L.Ed.2d (1995) (“At history. “local dis- option” American Such the heart of the Constitu- adopted crimination was the Missouri guarantee tion’s equal protection lies Compromise of which established the the simple command that the Government line, and Compromise Mason-Dixon individuals, must treat citizens as not as then, War, 1850. But since the Civil racial, simply components religious, of a Amendments to the post-war Constitution class.)” (internal quota- sexual or national Topeka, and Brown v. Bd. Ed. Shaw- omitted). tion marks Kan., 483, 74 County, nee 347 U.S. S.Ct. right equal protection is held (1954) 686, 98 L.Ed. 873 have made racial equally among all individuals. racial “[A]ll discrimination a matter of national concern Equal classifications renewable under the governance. national strictly Protection Clause must be scruti opening As noted in the of this lines Adarand, 224, nized.” 515 U.S. at 115 dissenting opinion, certainly it is rational 2097, 132 (empha S.Ct. L.Ed.2d 158 balancing to believe that racial in schools added). scrutiny applies regard sis Strict and, achieves better racial socialization as less whether the racial classifications are result, citizens. better The issue is benign dependent invidious or and “is not that, rational can but whether what is on the race of those burdened or benefited by compulsory achieved racial discrimina- Gratz, by classification.” particular 539 tion the State. Johnson, 270, 2411; U.S. at 123 S.Ct. see (“We 125 at 1146 have S.Ct. insisted

II. context, scrutiny every strict in even for agree majority I with the that Dis- classifications, ‘benign’ so-called racial such trict’s use of the racial tiebreaker is a university admissions race-conscious classification, racial all racial classifica- policies, preferences govern race-based subject scrutiny” tions are to “strict review contracts, districting ment and race-based Equal under the Protection Clause. See minority improve representa intended to Majority op. majority at 1173. Yet the tion.”) (internal omitted). citations re We scrutiny type conceives of strict as some “to relaxed, quire demanding inquiry such a ‘smoke deferential standard of review. I differently. illegitimate by assuring view it out’ uses of race 2411, (2003), point, majority agrees. Majority op. 123 S.Ct. 156 L.Ed.2d 257 John- - -, California, son v. U.S. 125 S.Ct. pp. 1172 n. 12. 1141, 1146, (2005). 160 L.Ed.2d 949 On this 1200 that such a is constitution- body pursuing goal confidence legislative

that the enough high ally permissible. to warrant use of a important Adarand, 515 at ly suspect tool.” U.S. III. 226, 115 S.Ct. I consider first whether the District has provides a right equal protection governmental inter- “compelling asserted gov freedom from liberty; represents est,” scrutiny the first element of the strict upon racial classi coercion based ernment test. The District contends it has valid Miller, 904, 515 at 115

fications. See U.S. compelling governmental using interest (the Equal Protection Clause’s balancing racial to achieve “the educational neutrality “central mandate is diversity” of racial ... and social benefits Thus, decisionmaking”). governmental “racially high within its schools and avoid scrutiny, all racial under strict classifica ar- concentrated” schools. The District government, regardless tions gues its interest will enhance student dis- motivation, “inherently purported are sus cussion of racial issues in school and Adarand, pect,” 515 U.S. 115 S.Ct. foster cross-racial socialization and un- will invalid,” “presumptively Shaw v. derstanding, both school and later Reno, 643-44, students’ lives. (1993). They permis 125 L.Ed.2d 511 government proves sible where the Supreme The U.S. Court has “declined “narrowly their use is tailored further compelling to define interest or to tell [the governmental interests.” apply lower how to term.” courts] S.Ct. 2325. Regents Calif, Hunter v. the Univ. (9th Cir.1999) n. F.3d follows, then, government It J., (Beezer, dissenting); Mark R. Killen proving carries burden of its use beck, Pushing Things Up to Their First of racial classifications satisfies strict scru Principles: on the Values (“We Johnson, tiny. 125 at 1146 n. 1 S.Ct. Reflections of Action, 1299, 87 Calif. L.Rev. put the burden on state actors to demon Affirmative (1999) (the compelling 1349 definition of a policies strate their race-based admittedly imprecise. interest “is The Su Gratz, justified.”); 539 at U.S. 123 preme Court has never offered a workable 2411; Co., Paving S.Ct. W. States Inc. v. of ... unlikely definition the term and is Dep’t Transp., Wash. State 407 F.3d of so, ever to do preferring approach mat (9th Cir.2005) (“The 983, 990 of burden basis”). case-by-case ters on a justifying by ethnicity different treatment ... always government.”) (quot is on the majority in noting is correct the Wilson, ing Monterey Mech Co. v. 125 Supreme U.S. Court has never endorsed (9th Cir.1997)). F.3d 713 balancing” “compelling “racial as a inter- Indeed, throughout history est.” the of

Despite this formidable standard of re- scrutiny, Supreme strict the Court has re- view, majority the does not hesitate to jected compel- as invalid all such asserted endorse the District’s use of the racial interests, ling exceptions. save for two recognizing tiebreaker. Rather than respect, majority in creating With errs protections of against gov- the individual a third. classifications, majori- ernmental racial

ty rigid govern- instead endorses a racial A. mental grouping school students The Court has endorsed two race-based purpose attaining racial balance compelling governmental in the For interests in the expressed schools. the reasons below, First, majority’s I do not share in the education context. the Court

1201 remedy- alleviating past a means of societal dis racial classifications has allowed Bakke, 310-11, resulting crimination); in schools 438 U.S. at racial imbalances past Freeman, J.) segregation. (Powell, past jure (rejecting de from Second, 494, 112 1480. at S.Ct. 503 U.S. application of race-conscious measures undergraduate and has allowed Court improve delivery “the of health-care ser to consider race as universities graduate currently to communities under- vices overall, flexible assessment of of an part served”). A crucial guiding point here— to attain stu an individual’s characteristics entirely by majority and one elided —is Grutter, 539 U.S. at body diversity. dent reiteration that the Court’s consistent 2325; Gratz, 539 at U.S. ... “outright balancing patently 268-69, 123 S.Ct. See, e.g., unconstitutional.” 539 compelling 330, 123 valid inter Besides those two U.S. S.Ct. 2325. ests, every down the Court has struck Thus, landscape face a littered with we in asserted race-based other rejected “compelling asserted interests” it. that has come before See Shaw

terest determinations, but requiring race-based 899, 909-12, Hunt, S.Ct. v. exceptions standing. with two still (1996) (rejecting L.Ed.2d 207 exception inapplicable first here because the ef to “alleviate racial classifications schools have never been de Seattle in the ab of societal discrimination” fects Freeman, jure segregated. See 503 U.S. discrimination, findings past sence of 494, 112 S.Ct. 1430. minority representation promote and to exception inapplica- The second is also Co., Richmond v. J.A. Croson Congress); ble, directly acknowledged. albeit so 469, 511, S.Ct. 488 U.S. argument, At oral the District conceded (1989) (rejecting (plurality) L.Ed.2d 854 asserting that it is not the Grutter “diver- awarding in the racial classifications interest; sity” majority recognizes this contracts in the ab public construction interest is stating the District’s asserted discrimination); past findings sence of ways in some “significantly different” Educ., Wygant v. Jackson Bd. Majority asserted in Grutter. the interest 267, 274-76, 106 90 L.Ed.2d 260 Nonetheless, majority op. at 1176. in a (rejecting racial classifications differences are inconse- concludes those layoff policy teacher when school district’s of the different “con- quential because providing minority a means of offered as high schools and universi- minority text” between role models for its students and exclusion, generaliza imperative that majority it is 12. cites often to Grutter’s state- The tions, reviewing qualified the concrete ra- based on and ment that "context matters” in them, Equal gave must not be cial classifications under the Protection situations that rise disregard applied U.S. at of context in of variant Clause. See out facts.”). Grutter, (“Context reviewing controlling matters when race-based In the “context” race-conscious, governmental Equal Protec- action under the in was a law school's Clause.”). There, applicants tion the Court counseled consideration of dividualized admissions, scrutiny was to take dif- designed that strict "relevant achieve purposes of Here, different; ferences” into account. Id. diversity. we the context is tiebreaker, matter; Indeed, rigid which con al consider a racial "context” does context race, designed im general only to avoid racial ways application of siders matters in the so, as we do for settings. balance in the schools. And law to varied factual rules of 339, 343-44, cases, general principles of law Lightfoot, all we look to v. 364 U.S. Gomillion (1960) ("Particu through correct standard apply them the 5 L.Ed.2d 110 81 S.Ct. review, cognizant the different results dealing pro larly claims under broad in Constitution, cases because of different derive con reached in other visions of the which which the cases and the "context” in interpretive process of inclusion facts tent an 324-25, 539 U.S. at 123 S.Ct. interest is ties, District’s asserted and the Gratz, added); see (emphasis in interest its governmental compelling a (“[T]he 272-73, critical cri- right. own a race-conscious ad- permissible teria [in very differences between The Not so. often individual program] missions and the “diversity” interest the Grutter experiences dependent or not qualities why interest illustrate District’s asserted associated with upon race but sometimes Equal the Protection latter violates the it.”). The to the former. opposed Clause as “diversity” interest focuses Grutter upon “diversity” interest focuses Grutter individual, which can include the upon the individual, plays part, a of which race race, other applicant’s but also includes District’s asserted not the whole. The but factors, family applicant’s such as race, however, interest, only upon focuses background, parent’s her educational his- equal protection’s focus running afoul of fluent in other lan- tory, whether she is guages, whether she has overcome adver- upon individual. has

sity hardship, or whether she unique B. or artistic talents. See 539 athletic 123 S.Ct. 2325. Such a focus Gratz, the Court made Grutter Equal with the Protection is consistent compelling that the valid interest clear individual, Clause, protects which not translate into a valid “diversity” does groups. diversity.” in “racial compelling interest here, operation But District’s “diversity” interest ap- racial not consider the tiebreaker does simple ethnic diver- is not an interest contrary, plicant as an individual. To the specified percentage a sity, which only the racial tiebreaker considers wheth- body guaranteed effect the student er the student is white or nonwhite. While groups ethnic to be members of selected “diversity” pursues the Grutter interest Rather, diversity that furthers .... (of diversity body genuine the student encompasses a state interest factor), only single “plus” which race is array qualifications broader pursues far an which con- interest which racial or and characteristics i.e., diversity, prede- siders single though but a origin ethnic grouping fined of races in the District’s schools.13 is not a valid important element. Such interest “nuances,” attempt change arose. But what must be remembered is that thus to change bald fact of selection based on race. "context" does not different law, general rules of nor does different majority recognize 13. The fails to this distinc- change applicable "context” standard of example, comparing tion. For the District's (at government-imposed review least for ra- claimed interest with those endorsed in Grut- ter, classifications). cial majority reasons schools "have Yes, matters, "context” but the mention of equal important pre- if not more role” in "context” should not be a talisman to banish paring citizenship, students for work and and enquiry. further The "context” of the Michi- perverse reading concludes “it would be a gan Law School is different from the Dis- Equal that would Protection Clause allow trict’s schools. But the difference is in university, educating relatively per- a a small students, age of the their number and the centage population, to use race when obligation of the District to admit all students. choosing body its student but not allow a change Does that the fact that some students district, educating all children solely are schools, sent to certain schools because of attending to consider a student's its change their races? How does "context” race in order to ensure that the schools that? Let us not succumb to the use of an within the district attain and maintain diverse ("context”) Majority op. "sensitivity” 1176. abstraction to invoke student bodies.” interest; argues concept The District its of racial simple racial it is bal- necessary diversity Protection is to foster classroom Equal ancing, forbidden cross-racial socialization. 123 S.Ct. 2325 discussion and See id. Clause. however, argument, institution’s interest That is on the government a based (stating body some stereotype express its student that all white children “to assure within particular group of a percentage viewpoints traditional white and exhibit specified ... mannerisms; race would merely because of its all traditional white nonwhite balancing, which outright racial opposite amount view- express children nonwhite unconstitutional”). mannerisms, is patently points and exhibit nonwhite thereby and white and nonwhite children dangers emphasized result Grutter will better understand each other. Yet lack of an individualized consider ing from nothing in the racial there is tiebreaker Observing applicant. ation of each viewpoints and mannerisms ensure such an un Michigan sought Law School represented preferred within the stu- minority “critical mass” of stu quantified in body dent ratio. As noted only representation, token dents to avoid only way viewpoints to achieve diverse balance, id. at than some defined rather to look at the individual mannerisms is 330, 123 the Court reasoned the S.Ct. children have different student. White focus on stu individualized law school’s viewpoints backgrounds than other forming that “critical mass” would dents children; goes for non- white the same stereotype that all perpetuating avoid children; and some white children white ... “minority always express viewpoints backgrounds have the same minority viewpoint on some characteristic assump- children. The as some nonwhite 333, 123 issue,” 2325. id. at is a difference between tion there here, concept of racial But the District’s just individuals because there is a differ- a defined ratio diversity predetermined, stereotype color is a in ence their skin children. The racial of white and nonwhite itself, nothing more.14 works to exclude white students tiebreaker claims it must use the white The District also from schools that have 50-55% racially to avoid imba- on the tiebreaker racial tiebreaker body (depending student schools, may which result schools year), in a and lanced trigger particular used student bod- large white or nonwhite nonwhite students from with works exclude supposed benefits nonwhite student ies and which with a 70-75% concept of racial diver- trigger from the District’s body (depending on the tiebreaker however, used). Thus, theory, occur. This concept sity of ra- will not the District’s stereotype, which presents another diversity permit does not school with cial white, something wrong with a there is body that is too assumes a student heavy nonwhite student body that too school that has a student school with something body population, or better nonwhite. freely nothing illegal Again, there is to con- did not allow universities Yet Grutter stereotype to achieve racial choosing sider race in admissions and to to believe in this balancing. point The whole of Grutter sending private upon it as a citizen in act race, may universities consider was that Gratz case particular school. The one's child to I part of the overall individual. but stereotype is ac- changes when such racial Equal nothing perverse recognizing see state, the basis for the cepted and is protector of the Protection Clause to be the individual, imposition of racial discrimination. among whether he be the few school, many among the in a law or an elite public high school. heavy league Washington Supreme white on the Court that has a school about theory Missouri v. racial body population. observing See of “[a]s student 2038, Jenkins, 515 U.S. politics, patently this view is offensive (1995) (Thomas, J., concur- 132 L.Ed.2d 63 policy promote racially as a diverse (“After all, separation if itself is a ring) schools, wholly Id. inadequate.” harm, integration if therefore is the voluntary by parents Unlike decision proper can receive a only way that blacks expose their children to individuals of education, something then there must background, different races or the District theory, inferior blacks. Under this about classifies each student skin color and blacks, injures segregation blacks because particular excludes certain students from own, left on their cannot achieve. when solely on the basis of race—to schools— my way thinking, To that conclusion is racially ensure those schools remain bal- jurisprudence upon of a based the result well-intentioned, anced. Even if the Dis- inferiority.”). theory of black trict’s use of racial classifications in such a racial Besides the District’s reliance on compulsory perpet- stark and fashion risks good categori- there is reason stereotypes, uating the same racial which have divisions cally balancing. pro- to forbid racial plagued country founding: this since its classifying groups cess of children in Race perhaps imaginable the worst color, viewing rather than them as individ- category organize around which to uals, encourages “notions of racial inferior- group competition and social relations ity” in white and nonwhite children both generally. more At the risk of belabor- hostility. racial and incites obvious, ing the categories racial law Indeed, 123 S.Ct. 2325. played utterly pernicious have particularly great those risks here be- throughout destructive role human his- cause of the blunt nature of the racial tory. This incontrovertible fact should grouping tiebreaker. The District’s racial arouse wonder ... at the hubris those students, nonwhite, either as white or imagine who can distinguish we minority assumes that each student is the clearly enough invidious and between same, regardless whether he is African- benign engrave race discrimination to American, Asian-American, Latino, or Na- this distinction into our constitutional American; tive difference noted order. experience Vast human mocks minority the District is student illusion, comforting this as does the fact is not white.15 The District thus “con- Americans, that most including many diversity of racial in simplistic ceives terms minorities, think racial preferences are dichotomy as a between white and non- invidious, benign. benign- white, Whether say as if to all nonwhites are inter- not, ly intended using category changeable.” Cmty. Parents Involved in Dist, race—which affirmative action propo- Schs. v. Seattle Sch. No. oddly depict socially Wash.2d P.3d 169 n. 5 nents construct- (Sanders, J., dissenting). join my I col- primordial ed and and immutable —to materials, majority purposes registration parent notes that for if a or stu- tiebreaker, “a student is to be deemed example Tiger dent chooses to follow the specified registration of the race in his or her race, identify Woods and refuses to his or her Majority op. gen- materials.” at 1169. That engages inspec- the District then ain visual particularly eralization to note a declines parent tion of the student or and will decide overbearing facet of the racial Al- tiebreaker. notwithstanding parent's the child's color though encourages the students’ or student’s choice. parents identify the race of their student in presents, that it make that far disadvantage interest advantage and distribute compelling. fluid, forward-looking ossify the tends to robust demo- that a political identities C. inspires requires. and spirit cratic sociological evidence presented Schuck, Action: H. Peter Affirmative District, upon strongly by relied Future, Past, Present, Yale L. & and my majority, change does not view. The (2002). 1, 92-93 Pol’y Rev. majority discusses much of the evidence minimize these shadows should not We supports position that the District’s that supposed over the benefits that are cast racially balanced schools foster cross-racial The Dis- asserted interest. the District’s understanding socialization and in school only not trict’s racial classifications stark Majority and later in the students’ lives. individuality, notions of offend intrinsic op. majority puts at 1174-1175. Yet the suggest principles opposite they even suggesting aside the other evidence there Although claims to seek. what the District agreement is no definitive as to the benefi- the racial contends it uses cial effects of racial balance in K-12 i.e., good, for to foster cross- tiebreaker schools, that the benefits attributed to ra- understanding, racial socialization weak, cially balanced schools are often diversity of racial also concept District’s any always that benefits do not have a may principles many which suggests other direct correlation to racial balance. Yet taught objectionable, especially when find again, private accept citizen is free to to children: reject body opinion one another preference does ex- public While law deciding particular to send his child to a compassion a certain kind of press similarly privileged school. Is the state preferred and commitment to the required to determine its when dominate its mes- groups, signals other goal “compelling claimed is a interest”? them, that American soci- sage among— “compelling” One would think that to be just group people by it race ety thinks there would be no room for doubt of the mon- ethnicity, groups to treat those certainly measure. That is need for the re- olithieally, precious and to allocate not the case here. accordingly; and opportunities sources example, provided by For a source equal that it holds treatment and indi- “family background has District states secondary, dispensable vidual merit as significantly stronger effect student ideals; cannot preferred groups that the single than other achievement favors; special public succeed without factors, or constellation of school factor stigmatize them that such favors do not composi- ethnic including school racial and others; that in the minds of fair-minded pre- Another source [SER 182.] tion.” thereby oppose preferences those who that court- by the District states sented oppose aspirations preferred (ie., a court-or- desegregation ordered society assuage can old groups; and that breakup jure segregated of a de dered injustices by creating new ones. When minimal body) resulted student things, speaks it says law such benefits: falsely, promises, and holds out vain desegregation suggests [Research brings disrepute. itself into on the read- positive has had some effect Id. at 87-88. young- of African American ing skills may large, interest nor does

The District’s asserted The effect is sters. situations, in all but a modest goals. But the stereo- it occur supported noble apparent. based, measurable effect does seem and the risks types on which 120 6 “key context of edu- case with mathematical element” is not the

Such i.e., cation, that “the life chances of stu- skills, generally unaffected which seem Second, improved only there is dents are with economic by desegregation. may integration”).16 desegregation some evidence thought can of as help to break what presented by racial serious risks cycle segregation of and generational marginal classifications counteract Although research on racial isolation. provided by balancing. benefits racial by is scant and often marred topic this long recognized Courts have racial classifi flaws, begun evidence has unavoidable promote cations “notions of racial inferiori may fa- desegregation accumulate that hostility.” ty politics and lead to a of racial vorably adult outcomes as influence such Grutter, at 123 income, employ- and college graduation, 2325; Perry, Pro Equal Michael Modern patterns. ment The measured effects (1979) tection, L.Rev. Colum. “ are often weak .... (“Affirmative ‘inevitably action foments [SER 207-208.] thereby racial resentment and strains the to gain acceptance effort wider for the That source concludes that evi “[t]he principle of moral of equality desegrega regarding impact dence of ” ”). suggest races.’ studies Other generally intergroup tion on relations is where racial are a means of classifications held to be inconclusive and inconsistent.” balance, achieving racial academic achieve at 208.]. See 364- [SER hindered, by ment minorities is and racial J., (Thomas, dissenting) tensions are riled: (collecting suggesting studies black stu perform higher ardently dents levels of achieve In a culture that affirms the freedom, merit, historically colleges); principles ment at black David of individual Levine, Assignment equality I. opportunity, Public School demo- [the] anger [precipitated by Methods Grutter and Gratz: The ralization and be- after Francisco, Hastings ing View San victim to racial government-imposed L.Q. 511, (noting Const. that a classifications] must be counted as very school’s on racial large focus balance misses social cost. It is no less a deed, showing 16. See David J. & also Armor Christine H. there are more studies harmful Rossell, Desegregation Resegregation showing positive effects than studies effects.” Schools, Beyond the Public the Color Line: This led to another and more recent reviewer Perspectives Ethnicity New on Race and conclude, race relations literature to “ (Abigail Stephan America 251 Thernstrom & generously: general, somewhat 'In the re- eds., 2002) ("[Rjacial composi- Thernstrom desegregation intergroup views of rela- by raising tion has little itself effect on tions were unable to come to conclusion minority achievement of students or on reduc- probable desegrega- about what the effects of ing minority-white gap. achievement Virtually tion were.... of the reviewers all Some studies show that there is no relation- few, any, determined that if firm conclusions ship at all between black achievement and impact desegregation about the on inter- ..., composition racial and other studies group relations could be drawn. The reluc- relationship show that there is no between the tance reviewers to draw conclusions about gap black-white achievement and racial com- desegregation the benefits of for race case, position. though In either there is some relations or self-esteem reinforces our evidence here that achievement can be affect- psychological theory conclusion that the harm by programmatic changes, ed there is no evi- segregation of de facto and the benefit social responds improved dence that theory desegregation clearly wrong, itself.”); (“The balance id. at 252 evidence applied desegregation desegregation least when ra- on the benefit of school race ”). probably policy.' relations is the weakest of all. In- cial balance whites, versity” interest it is borne because the law cost because school’s grounded at that. If “academic privileged less whites often freedom”— impose including First Amendment and make it unfair to principles these cost, law school’s freedom to select its stu that the unfairness is own the fact this body dent the law school’s asserted large group people across a spread —and diversity need for to achieve a In “robust palatable. more may not make exchange classrooms, of ideas” within its fact, diffusing way the unfairness in this vital part of the law school’s mission. 539 simply peo- will increase the number of 330, 123 U.S. at S.Ct. aggrieved. ple who feel themselves Schuck, supra, implicat- at 69. None of those same issues are ed here. The “academic freedom” of a in the despite But the inconsistencies university “to allows it determine itself and the vivid risks of sociological evidence teach, grounds may on academic who what interest, majori- the District’s asserted may taught, taught, it shall be how ty implicitly posi- defers to the District’s Bakke, may study.” who be admitted to approach, tion. took a similar Grutter J.). (Powell, 438 U.S. at its endorsement of the emphasizing High schools do not have such similar free- large part in “diversity” interest relied They may doms. cannot determine who judg- deference to the educational upon teach, at least when that determination is Michigan ment of the Law School. 539 upon grounds. Wygant, based 123 S.Ct. 2325. U.S. 274-76, They U.S. 106 S.Ct. 1842. perhaps Yet to steal a line from the also may cannot determine who be admit- majority, the “context” here is different. study; ted to government when the choos- university’s “aca- We are not faced with provide public secondary es to education in freedom,” “a con- demic which arises from schools, it “must be made available to all dimension, grounded stitutional in the Doe, equal Plyler terms.” See v. Amendment, autono- First of educational 202, 221-23, my,” and which includes the freedom to (1982). Further, L.Ed.2d 786 there is no body. Id. instead select its student We comparable Supreme line of U.S. Court public high school’s admissions consider affording high special cases schools the plan which admits or excludes students granted to uni- “[A]cademie freedom[s]” particular solely from on the basis versities the First Amendment. See reasons, of their race. For several we Fordice, United States v. plan. should not defer to such a 728-29, 120 L.Ed.2d 575 First, uni- other than for race-conscious (“a (1992) university system quite state versity admissions based on holistic diver- very respects different relevant sity, government deference to a actor is schools.”); secondary Jay P. primary and scrutiny. inconsistent strict See Lechner, Experience: From Learning Johnson, 1 (stating 125 S.Ct. at 1146 n. Why Diversity Legal- Racial Cannot Be generally [by that “deference the courts ly Compelling Elementary Interest in applying scrutiny] fundamentally strict Education, Secondary 32 SW. U.L.Rev. equal protection jurispru- at odds with our (stating Supreme Court dence”); (stating Supreme id. at 1150 “has deferential to the discretion been less offi- Court has “refused defer state elementary secondary school officials cases, judgments cials’ on race ... where those Equal part Protection because traditionally desegregation officials exercise substantial the Court has viewed school discretion.”). serving the Court- de- social rather than educational Michigan goals. acknowledged to the Law “di- has ferred School’s Court Last, claim that its assert- delicate, the District’s important, most even the helps functions of state edu- to foster cross-racial so- discretionary ed interest highly Bill subject to the limits of the understanding are later cators cialization and to the Constitu- and subordinate Rights sociological judgment students’ lives is of the individual. More- tional freedoms expertise of the District’s edu- outside from diversi- over, benefits the educational benefits are dif- cators. Those external higher at the greater much ty, any, if fuse, long manifest after students leave such benefits are level because educational classroom, and cannot be measured with learning the magnified greatly uniquely by educators. possessed skills the classroom—in dor- outside place takes Grutter, deferred to the Law Unlike which mitories, settings, and extracurricu- social diversity in the on the basis that School to must learn lar activities—as its educational mis- classroom was vital to races persons of other live and work with three-year law cur- during sion school (internal backgrounds.”) quota- and ethnic riculum, here, inter- the District’s asserted omitted). tion marks only loosely depends upon est benefits Moreover, is a crucial difference there mission linked to the District’s educational exchange of ideas” between the “robust years schooling to take effect after its and in Grutter and the Dis- theory referenced children, entirely outside the “brings that its interest differ- trict’s claim Here, expertise high of its educators. to class- viewpoints experiences ent administrators and teachers are school thereby enhances room discussions years predicting sociologists what will find The process.” [ER 237.] the educational later. racial applies the tiebreaker District scrutiny cannot remain strict if we Strict ninth-grade students. entering [ER to judgments not even within the defer 253, It that classroom is self-evident 308.] particular expertise or observation of the plays significantly more vital discussion Hence, party being scrutinized. deference typical their dia- role in universities with method, regarding is not due than in teaching lectic or Socratic the District contends are attribut- their benefits ninth-grade high school courses with teaching or rote method. able to its claimed interest.17 typical didactic Charlotte-Mecklenburg Swann, majority states that Swann v. olina State Bd. Educ. v. 402 U.S. 17. The duc., 43, 45, Bd. E 402 U.S. 91 S.Ct. 28 L.Ed.2d 586 (1971), supports Swann, (same, S.Ct. 28 L.Ed.2d 554 citing 402 U.S. at proposition that the District has broad 1267). engage balancing in racial as an discretion passage provide powerful Swann’s seems to Swann, policy.” "educational the Su alas, language majority’s position, for the but preme Court stated: "School authorities are majority passage takes the out of context. traditionally charged power to for broad considered remedies to a Swann available implement policy mulate and educational jure segrega- past de federal court to combat conclude, might example, well tion. The Court never considered whether a prepare pluralis order to students to live in a could use racial classifications school district pre society tic each have a school should jure segre- to achieve racial balance absent de Negro re scribed ratio of to white students Indeed, gation. "We the Court stated: flecting proportion for the as a district with the concerned in these cases elimination policy whole. To do this as an educational of the discrimination inherent in the dual discretionary powers within the broad authorities; systems, myriad not with factors of school finding of a con absent violation, however, human existence which can cause discrimina- stitutional that would not racial, ways in a multitude of reli- authority tion within the federal court.” 1267; gious, grounds.... objective in Id. at S.Ct. North Car or ethnic Our see also to the Dis- See of deference In the absence evidence, sake, faults of I here as- argument’s 2325. For sociological

trict’s interest come into sume, conceding, asserted the District has the District’s without saving It has none of the sharper focus. compelling governmental asserted a valid holistic di- in the Grutter graces present using balancing racial interest It versity perpetuates interest. and social benefits achieve “the educational fomenting racial hos- stereotypes and risks diversity” ... within its of racial Last, the in- the District enforces tility. “racially concentrat- to avoid compulsion through government terest assump- under that ed” schools. Yet even terms, es- starkest black and white tion, tie- the District’s use of the racial trumps the principle that race pousing narrowly breaker is not tailored to serve individual. that interest. sociological presented evidence majority narrowly forth “five hallmarks of a tailored me, balancing. To accrue from racial

will (1) plan: affirmative action individualized satisfy benefits does not evidence of some (2) applicants; consideration of the ab- compel- proving burden of the District’s (3) serious, quotas; good-faith sence of interest, especially ling governmental alternatives consideration of race-neutral pro- Supreme frequent Court’s light of the (4) program; to the affirmative action balancing itself is that racial nouncements unduly any group no member of racial was Thus, under the unconstitutional. viewed harmed; program and that the had without scrutiny, of strict and lens provision point.” sunset or some other end Grutter, invoked the District’s deference I Majority op. agree at 1180. with compelling govern- not a simply interest is majority’s formulation. Yet the general Hence, I hold that interest. would mental application again of those factors evinces of the racial tie- operation the District’s District; to the improper deference racial classifi- impermissible breaker is an is ill suited for the search- such deference Equal Protection cation and violates the under the narrow-tai- ing inquiry needed Clause. scrutiny. loring prong of strict See John- IV. son, n. 1. I consider 125 at 1146 S.Ct. District’s use of the whether below if asserted interest Even the District’s interest, narrowly tailored to its racial tiebreaker compelling governmental were interest, that racial and conclude asserted by the District must still the means used narrowly is not tailored. that interest. tiebreaker narrowly tailored to serve be Thus, cannot shelter the Dis- by Swann’s dictum dealing presented the issues these tiebreaker from the trict's use of the racial school authorities exclude cases is to see that school, scrutiny. searching inquiry required strict minority pupil from no racial race; similarly relying on majority errs in directly indirectly, or on account of 1, Washington Dist. No. 458 problems v. Seattle Sch. all the does not and cannot embrace 3187, problems L.Ed.2d prejudice, when those racial even of contribute to There, (1982). specifically also the Court disproportionate racial concen- 22-23, the issue of the consti- stated it did not reach Id. at trations in some schools.” added). assign- tutionality student of "race-conscious (emphasis S.Ct. 1267 achieving purpose of inte- ments for the decided decades before the Swann was also jure finding prior de gration, even absent of the level of scruti- Court resolved the issue classifications, S.Ct. segregation.” Id. at 472 n. apply "benign” ny to 3187. racial classifications. vis-a-vis "invidious” (emphasis add- A. Id. at ed). university The differences between narrow-tailoring factor re- The first secondary justify do not de- education in an individ- engage quires the District equal protection nial of individualized applicant’s of each consideration ualized secondary the law to school students. qualifications. See characteristics appli consideration of an Individualized at 123 S.Ct. 2325. require pro not an admissions cant does this factor is self-evi- importance race; gram program to be oblivious to dent; consideration serves individualized race, so, may it must doing consider but Equal of the Protec- primary purpose enough to consider all remain “flexible Clause, protects the individual tion which diversity light pertinent elements of classifications, especially those group particular appli each qualifications race. id. cant, on the same foot place them that individu- majority concludes Yet the consideration, not ing although neces applicant of each alized consideration sarily according weight.” them the same of the contextual irrelevant here “because can Id. 123 S.Ct. 2325. There higher institutions of differences between facto, of policy, jure “no either de or de Majori- high schools.” learning acceptance rejection automatic based on disagree I ty op. at 1180. could any single ‘soft’ ... as the [such variable By removing consideration more.18 mechanical, awarding predetermined of] tailoring analy- from the narrow individual diversity ‘bonuses’ based on race or ethnic sis, majority threatens to read the 337, 123 ity.” Id. at S.Ct. of the Consti- Equal Protection Clause out Here, the racial tiebreaker works to ad- equal of very tution. It is the nature mit or exclude school students from protection require individualized consid- solely certain on oversubscribed schools racial government eration when the uses the basis of their skin color. No other Amend- classifications: “the Fourteenth operation consideration affects the of the ” groups.” ment not “protects persons, tiebreaker; operates, op- when it at 123 S.Ct. 2325 U.S. erates to admit or exclude either a white Adarand, 227, 115 (quoting at U.S. student, or depending upon nonwhite how 2097) (emphasis original). Grutter preferred the admission will affect the bal- emphasized of the individu- importance ance at the oversubscribed school. Such applicant: alized consideration of each program precisely what Grutter warned university the context of a race-conscious against, and what Gratz held unconstitu- program, admissions such consideration mechanical, predetermined policy tional: a enough must remain flexible to ensure acceptance rejection “of automatic variable,” as an applicant single that each is evaluated based ‘soft’ a[] being the student’s skin color. id. way individual and not in a that makes ethnicity the de- applicant’s race or The racial tiebreaker’s overbroad classi- fining application. or her feature of his fication of students as “white” or “non- importance this individualized required white” also runs counter to the of consideration in the context race- appli- individualized consideration of each program para- conscious admissions cant. The District does not even consider Instead, mount. the student’s actual race. - discrimination). supra pp. (explaining 18. See 1201 1202 n. 12 alter the fact of racial why the talismanic use of ''context” can not schools, all admission to and places any of those thus presumably District Caucasian stigma no racial attach category, into the “white” could when stu African-American, Latino, dent is to one places then all excluded from admission Asian-Ameriean, Na- the schools on of his race. Pacific Islander and the basis Ma catego- jority op. tive into the “nonwhite” 1181 -1182. Americans categorization ry. puts This aside majority explanation Yet the no offers skin color individuals whose does why, year, in the 82% 2000-01 school directly correlate classifications. the students one of the selected oversub- may and students identi- Although parents (i.e., subject scribed schools schools fy group registra- their on the particular tiebreaker) choice, the racial as their first not, materials, they tion if do picked while 18% one of the under- will the racial identification itself make subscribed schools as their first choice. through inspection parent or visual Majority op. Clearly, at 10-11. the stu- Thus, minority student. a fair-skinned parents’ dents’ their “market” ap- may up category, in the “white” or a wind praise providing some of the schools as may up in darker-skinned Caucasian wind better education than the others. Even category. the “nonwhite” superintendent the District’s confirmed that the recognized parents have often students’ considered some Courts quality. of the schools higher [ER all minorities within a “non to be of inclusion of suggests 534.] the operation white” classification not narrowly

of a racial classification is public It is common sense that some n. Wygant, tailored. See schools better than others. Parents (noting the “definition of offering often move into areas better blacks, Orientals, minority to include districts, ubiquitous research Indians, persons Spanish American compare guides quality descent further illustrates undifferenti according to standardized test ated plan”); Monterey nature of the Mech. scores, program offerings, and the sort. It Co., (noting at 714 125 F.3d the inclusion self-interested, may soothing, be if that minority of all races within a broad “mi lullaby of sing equal bureaucratic voices nority” category flag[] serves as “red educational in the quality District’s not, that statute is signaling parents schools. But the facts show Equal requires, Protection Clause narrow and children voted with their feet in have tailored”). least, ly very narrowly At the than choosing some schools rather others. require program tailored would an individ of makes a The verdict that “market” hash separate ualized focus which would out of such the District. assurances or according student to his her correct Thus, operation of the ra- District’s race, process simple rather than as a of limit reality cial does access tiebreaker pigmental matching. among governmental to a certain benefit concludes, however, majority The applicants students. District insulates The appli- consideration of groups individualized each belonging certain racial from unnecessary cant because is the District to those competition for admission schools public does student from a A perceived higher quality. not exclude nar- by operation rowly of the racial tie- admissions education tailored race-conscious majority program category that be- “cannot insulate each breaker. The reasons applicants cause are entitled certain desired [racial] all students with schools, qualifications competition from all education in one of the District’s Grutter, applicants.” 539 U.S. at competition there no the District for other Second, majority, in the racial tiebreaker as noted 2325. The 3,000 year, approximately 2000-01 school fails that test. entered the District’s majority insist that because the Yet graders. percent as ninth Ten racially to avoid concentrat seeks District subject those students were to the racial schools, “the District’s tiebreaker must ed Thus, Majority at 1170. op. tiebreaker. race of its stu necessarily focus approach, the Dis- under individualized Majority op. Again, at 1183. dents.” only had to three trict would have examine protection pro the crucial majority misses who to applications hundred to determine Equal Protection Clause. by the vided In- admit to the oversubscribed schools. narrow-tailoring obligation District’s The stead, grouped those three race; considering it prohibit not from does hundred students into white and nonwhite just cannot consider race. categories computer and allowed a to se- equal protec guarantee constitutional solely assignment upon lect their based upon the District to focus requires tion their race.20 up, individual’s whole make rather than color; just group’s protects skin this Thus, providing rather than an individu right equal protection each student’s applicants, alized consideration of the Dis Grutter, 539 at under the law. See U.S. jure in a engaged [policy] trict is “de 326, 123 acceptance rejection automatic based on Grutter, single ‘soft’ variable.” See a[] course, counter-argument, of is that 123 S.Ct. 2325. Such pro- administrative inconveniences would inflexibility shows the racial tiebreaker examining hibit the District each stu- “narrowly any goal, except not tailored to characteristics, for individual dent’s file perhaps outright balancing.” may part. which race be a To the con- Croson, 488 U.S. at trary, the record shows such an effort is (plurality). certainly feasible. First, fourteen-year-old thirteen- or stu- B. young they

dents are not so have yet developed unique narrow-tailoring pro traits to set The second factor apart quotas upon themselves from other students and hibits the use of based race. diversity greater body. add to the student 123 S.Ct. 2325. The students’s race is a factor in A assessing quota program is defined as “a which individual, an proportion the student as but the stu- a certain fixed or number of may speak English dent also a opportunities exclusively as second are reserved language, minority Quotas come from a groups. impose different socioeco- certain a students, nomic stratum than other fixed percentage have number or which must be attained, adversity, overcome be a talented or baseball which cannot be exceeded.” musician, (internal player, participated or have in Id. at quota omitted). community service. tion marks and citations noted, applies peating 19. As the District the racial nonetheless: fact that the im- "[T]he only entering ninth-grade tiebreaker to stu- plementation program capable pro- aof of (presumably dents around thirteen to fourteen viding might individualized consideration old). years present challenges administrative does not proble- render constitutional an otherwise applications 20. Three hundred seem like Gratz, system.” matic U.S. at 123 539 challenge, a minor administrative but S.Ct. 2411. Supreme the Court’s bears admonition re- majority argues quota exists Here, is oversub- Yet the no a District school when the “integration positive” ie., because the racial tiebreaker “does scribed here — the body of nonwhite student white or a fixed slots for not set aside number of by plus minus 10% or or students,” school deviates nonwhite or white nor is the of year)21 (depending the school 15% always (generally or 15% variance satisfied ra- 40% nonwhite preferred the white/60% because there are insufficient numbers of uses the racial tiebreaker tio—the District or nonwhite students needed to bal- white will presence students whose to admit school). Majority op. at 1185.22 ance body closer to the the overall student move respect, majority misses the With Using ratio. the 2000-2001 preferred point. quota A does not less of a become year example, as an school there an quota because insufficient to ex- employ the racial tiebreaker would whites or to fill the number of nonwhites nonwhite white students and admit clude preselected spots. District created body where white student students quota predeter- when it established the District exceeded 50%. The population mined, preferred ratio white and non- to employ also racial tiebreaker would Bakke, In medical white students. white nonwhite students and admit exclude that it argued operate school did not body where the nonwhite student quota system its admissions because particular in a exceeded population seats; fill the always preselected did not 70%. thus, system only its had a admissions nature, for a aims By its tiebreaker rejected argu- Powell “goal.” Justice predetermined ratio of white rigid, ment, regardless whether stating students, to operates and thus nonwhite or a preselected “quota” seats were a (em- number percentage.” “a fixed or reach “goal,” such a reject- supplied). specifically Grate phasis point: distinction is beside the semantic narrowly tailored. such a not ed unde- special program admissions (“[T]he 539 U.S. at 123 S.Ct. niably a on race and classification based automatically University’s policy, which background. To the extent ethnic ... points needed [20%] distributes pool minimally there existed at least admission, single every guarantee minority to fill the qualified applicants minority’ applicant sole- ‘underrepresented seats, appli- special admissions white race, narrowly tailored ly because compete only could for 84 seats cants (“The 271-72, ....”); id. class, entering rather than the accompanies this only consideration that minority Whether open applicants. points review of is a factual distribution quota this limitation is described as an whether application determine it is a line drawn on the basis goal, of these is a member of one individual and ethnic minority groups.”). race status. 2000-01, schools, dangers present- used a devia- to the District's District 10% 21. trigger, trigger by quota i.e., insulating applicants tion but increased the 15% ed — year. competition for the 2001-02 absent on the basis of race—are saying Majority op. at 1184 n. 27. But here. so, it is said does not make whether it it quota Although majority concludes explained here, majority. District or As “the exist it concludes does not also above, clearly higher for there is a “market” underlying prohibition of the ... rationale District, there is quality schools in the Majority op. quotas apply” at does not here. parents and competition majority 27. The that be- 1184 n. reasons assignment view to be the better schools. competition is no cause there c.

Bakke, at 438 U.S. S.Ct. 2733 J.). (Powell, narrow-tailoring The third factor re- majority attempt makes a further quires engaged the District to have in a against quotas admonition avoid Grutter’s “serious, good-faith consideration of work- classify pre- by attempting to District’s able race-neutral alternatives.” See id. at determined ratio as a “critical mass.” The 339, majority 123 S.Ct. 2325. The con- ratio could not be fur- preferred District’s cludes the District made such effort. ther from the definition of a “critical Majority reasons, op. at 1188. For several recognized mass.” Grutter that a “critical I disagree. definition; had no in- quantified mass” First, superintendent flatly the District’s stead, generally was referred engage admitted the District did not in a “meaningful “meaningful numbers” or rep- serious, good-faith consideration of race- resentation” minorities. neutral alternatives. When asked whether expressly 123 S.Ct. 2325. The Court “g[a]ve any serious consider- stated a “critical mass” was not a adoption ation to the of a for the “simply to its means assure within student assignment school students that body specified percentage par- some of a balancing did not use racial as a factor or group merely ticular because of its race or goal,” superintendent the District’s stated: origin.” ethnic Id. at “I think general answer to that ques- (internal omitted). quotation marks tion is no ... I signifi- don’t remember a unquantified But unlike the “critical cant body being of work I done. mean it’s pre- mass” from the District’s possible informally ideas were floated here firmly white, ferred ratio is set at 40% 60% there, Ibut don’t any signifi- remember trig- nonwhite. When the 15% deviation being cant staff work done.” [ER 521.] ger tiebreaker, is used with the racial District seeks to enroll between 75% and supports The record this concession. 45% nonwhite students and 25% to 55% of The District never asked demographer its white students. The District’s admissions any analysis to conduct regarding the ef- plan clearly seeks to specified assure a using fect of a race-neutral lottery. [ER percentage of white or nonwhite students 483.] The District also never asked its schools; in its seeking rather than a “criti- demographer any analysis conduct re- mass,” cal the District instead seeks racial garding diversity program with non-ra- Thus, operation balance. the District’s cial indicia such as a eligibility student’s the racial tiebreaker fails this factor as for free lunch or the students’s socioeco- well. background.23 nomic [ER 481-82.] notes, majority conclusory 23. The makes the state- the northern Seattle area contains ment that the majority District’s dis- of "white” students and is "white/nonwhite "histori- narrowly prioritize cally tinction is tailored to Majority op. more affluent.” at 1166. movement of students from the north of the This would mean the southern Seattle area is Thus, city city to the south of the moving and vice versa” as less affluent. more affluent stu- south, racially north, an effort to combat Seattle’s imba- dents and less affluent students patterns. Majority op. lanced residential possibly provide could a more diverse student least, attempt 1188. Yet the body. very District’s to balance At the serious consideration students from north Seattle and south Seattle would have been warranted into race- this less-restrictive, strongly suggests Levine, race-neu- supra, neutral alternative. See at 536 approach balancing: tral to (noting key achieve such so- successfully the element to inte- balancing. majority grating cioeconomic backgrounds As the students of different and academic, Also, mag- Met- avocational and vocational League of the Urban high school presented Seattle ropolitan programs.” programs help net These “will The plan to the District. assignment diversity school address racial issues each neighborhood region proposed each encouraging to by students travel outside a designated would have Seattle participate of their communities to to still be able Students would school. magnet specific program.”24 Seattle, but any high to school apply assertion, the Despite majority’s the rec- occurred, oversubscription students when seriously suggests ord the District did not designated in the area” living “reference plan. consider this The District did not regional assigned would first be their any analy- its to conduct demographer ask those not. high school ahead of who did workability sis as to the effect or of the in the concentration To avoid racial 504]; schools, District member plan proposed plan [ER the “merit-based one board balance, a free people but “economic odious to whose race is racial institutions upon integration”). equality.”). founded doctrine of the poverty might Even if a sole on focus accepts rejec- majority the District's Yet the minorities, insulting to some socioeconomic factors, the use socioeconomic rea- tion of of inquire only considerations need not into soning “[a]lthough there was no formal status; lunch, poverty eligibility for free the staff, study proposal District Board education, parents' levels or of whether En- testimony legitimate revealed two members’ glish language ais second for the child are rejecting al- reasons” for the socioeconomic evaluating also relevant determinations in di- (1) insulting to minorities ternative: “it Third, versity. there is no reason students poverty and inaccurate to assume that often would have reveal their socioeconomic sta- status;” (2) minority stu- correlates with could, peers; tus to their the District of so- would to reveal their dents be reluctant course, keep such information confidential. peers. Majority cioeconomic status to their analysis from op. at 1189. Such seems far com- 24. Similar race-neutral alternatives are "serious, good-faith the consideration throughout United For ex- mon the States. workable alternatives” demand- race-neutral Francisco, ample, the San California U.S. at ed Grutter. See 539 program employs a school district focused First, (or in- formal without studies enhancing diversity The in the classrooms. any the alterna- deed earnest consideration of program school allows students choose tives), way knowing we whether have no When a school is oversub- within district. considered, seriously actually scribed, program assigns first students reasons, rejected for valid less-restrictive school, siblings then Croson, with to the same race-neutral alternatives. specialized accommodates importance emphasized a satis- Court that, learning “Diversity In- After needs. factory race- to determine whether record assignments. "Under dex” handles further were considered. See neutral alternatives Croson, 498-511, Diversity process, the district Index S.Ct. 706 U.S. at profile calculates a numerical of all student government (plurality) (detailing the actor’s Diversity applicants. current Index the basis its use of failure document so). composed binary stressing of six factors: socioeconom- quota do need to status, status, Second, moth- ic academic achievement majority’s insistence that the Dis- status, background, language poverty be “in- er's educational trict’s consideration of would index, indeed, performance ignores and home lan- sulting” demeaning academic —and Levine, plac- guage.” As- constitutionally objectionable David I. Public School —effect persons groups solely by signment Grutter and ing their skin Methods into Gratz: after Francisco, Hastings receiving being purpose View San color for the Const. L.Q. 511, (2003). Notably, San governmental Loving v. benefit. See 528-31 denied 1, 11, system as an “does not use race Virginia, 388 Francisco ("[T]his assignments” and express for school Court has con- criterion L.Ed.2d 1010 scrutiny. sharp repudiated avoids the focus strict sistently between citi- thus distinctions being solely ancestry at 531. of their Id. zens because unduly “didn’t deal with” the The racial tiebreaker burdens stated 514]; chil- fourteen-year-old another board member thirteen- and plan [ER (1) consider the them of their choice depriving stated the District didn’t dren 643]; last, school, imposing another board member on them tedious [ER commutes, proposal solely upon to read the cross-town the ba- stated he refused play my “rather because he would sis of their race. fishing game.” lunker [ER 573.]

bass above, First, recognized “good” as course, government are a limited schools Seattle tailoring does not “[n]arrow Of Thus, benefit. the racial tiebreaker bur- every exhaustion of conceivable require students, Grutter, alternative,” dens white or nonwhite and often race-neutral 539 U.S. deprives opportunity them of the require enroll but does schools, earnest, at what are considered the better good-faith consideration of the Here, solely on the basis race. alternatives. the District made no attempt, such and thus the District’s use of Second, plaintiff the children of mem- the racial tiebreaker fails this narrow-tai- bers Jill Kurfurst and Bachwitz Winnie loring factor.25 High were denied admission to Ballard

School on their race and instead based, D. Ingraham, were forced to attend a school on the other side of Seattle from their fourth narrow-tailoring The factor re- school, home. To attend that the two use, quires that the District’s of the racial daily white students faced a multi-bus unduly “must not burden indi- tiebreaker round-trip commute of over four hours. viduals who ’are not members of the fa- parents instead enrolled their children groups.” vored racial and ethnic See private schools. Those children were Grutter, 123 S.Ct. 2325. only deprived not of the school of their adjusts majority slightly to this test The. choice, they effectively pub- were denied a “any group,” consider rather than (surely lic education at much lower cost just group. members of the disfavored tuition), private than nothing based on but Majority op. at 1180. Because the racial their race. disadvantages tiebreaker both white and children, I agree nonwhite that the modifi- A look at operation of the tiebreaker majority, cation is valid. But unlike the I provides further evidence of injury operation conclude the District’s of the District inflicts on both white and non- racial tiebreaker this factor fails as well. white students. As majority, noted interest, assessing seriously whether the District mental whether means used alternatives, narrowly considered to achieve race-neutral the ma- interest were tai- jority applies lored. See U.S. at deference to the District's con- ("The (or thereof) Law rejection judgment School’s educational sideration lack diversity that such is Majority op. the various essential to its edu- alternatives. at 1188 defer."). cational mission is one to which we respect, majority n. 33. With errs in two First, noted, respects. previously defer- pattern by majority now established generally ence to local race officials' use of suspicious. seems Out of five narrow-tailor- application scrutiny. factors, in the of strict barred ing majority has concluded two Johnson, Second, 125 S.Ct. at 1146 n. 1. if inapplicable, and now a third is entitled majority attempting apply the defer- to deference. I find it difficult to understand ap- ence invoked in the Court there analysis truly how such could be considered plied determining scrutiny deference in whether the narrowing require- strict as to the compelling govern- Law School asserted a ment.

1217 rejected year, argument white the state’s more Court in the 2000-01 school miscegenation to than did assigned were Franklin the statute not discrimi- students tiebreak- “pun- have occurred absent the the of race it nate on basis because would ad- er; 107 more nonwhite students were equally both the and the white ish[ed] Ballard; more stu- to nonwhite mitted Negro participants in an interracial mar- Roosevelt; to and were dents admitted at Id. 87 S.Ct. 1817. The Court riage.” Twenty-seven more nonwhite students “In reasoned: the case at bar ... we deal Majority to Hale. were admitted Nathan containing statutes racial classifica- the racial tiebreaker op. place To tions, equal application and the fact of does in the 2000-01 proper perspective, into very not immunize the statute from the nonwhite, minority stu- year, 89 school heavy justification burden of which the Franklin, were denied admission to dents traditionally has Fourteenth Amendment to a less had to what them was and attend according of state statutes drawn required school, their solely because of desirable Hence, race.” Id. at 87 S.Ct. 1817. to white stu- skin color. One hundred-seven irrelevant whether the racial tiebreaker is Ballard, admission to dents were denied disadvantages equally. both races to to them was a less and had attend what Second, I already disposed think I have school, solely because of their desirable majority’s argument of the that no student white students Eighty-two skin color. any specific is entitled attend District Roosevelt, and denied were admission parents clearly and school. students to them a less had to attend what was District’s schools above value some school, solely their because of desirable others, limiting to those access students Twenty-seven skin color. white race quality on the basis of higher Hale, denied admission Nathan were any just preferential the same as other is to them a less and had to attend what was racial classification. school, their solely because of desirable Third, I agree the tiebreaker does not color. skin uniformly one race the other benefit over majority Yet the discounts the burdens can white and nonwhite exclude both tiebreaker, conclud imposed Yet preferred schools. (1) “minimal of the ing that burden” being injury does not lessen the equally among is white tiebreaker shared Equal subject to a racial classification. (2) students; nonwhite no student right, is an and when- protection individual any any specific to attend school entitled student, District tells one whether ever the event; the tiebreaker does nonwhite, she attend he or cannot white uniformly one race the other benefit over race, school on basis of particular operates against the tiebreaker because injury of action works an constitution- Majority op. whites and nonwhites. both Adarand, 515 U.S. proportion. al point, Regarding at 1191-1192. the first (“[A]ny individual suf- Supreme rejected has long the U.S. Court injury he or she is disadvan- fers an when racial classification which the notion that a of his or government because taged objec equally any races less burdens be.”); race, may that race her whatever Equal tionable Protection under Co., 125 F.3d at Monterey Mech. In Loving Virginia, v. Clause. ”). (“Race ‘trifle.’ is never a discrimination (1967), L.Ed.2d 1010 use of the racial tiebreak- The District’s Supreme Virginia held a stat Court members unduly er thus burdens marriages was criminalizing ute interracial fails class, and the tiebreaker Protec disfavored Equal unconstitutional under narrow-tailoring factor well. this tion Clause. Id. at S.Ct. 1817. E. which the District ceases use the racial year tiebreaker at for the once final fac- narrow-tailoring The fifth and brought its use had the school into racial use of requires tor the District’s the racial undisputed balance. Yet it is the time,” limited in tiebreaker to “be and law; District segregated by has never been Grutter, point.” logical “have a end the racial its schools imbalance results S.Ct. 2325. A 539 U.S. at worka- racially housing Seattle’s imbalanced any govern- ble within provision “sunset” patterns. If simply Seattle’s children were ment-operated racial classification is vital: assigned to the schools nearest their of the purpose [A] core Fourteenth homes, supposedly those schools would away to do Amendment was with all tend to reflect such imbalance. imposed governmentally discrimination Because there is no reason —much less The requirement based on race.... housing evidence—to conclude Seattle’s all admissions programs race-conscious patterns or change, will that the District’s point have a termination all assures citi- assignment program student will affect zens that the deviation from the norm of patterns, respectfully such I disagree must equal of all racial treatment and ethnic provision that such a satisfies the “sunset matter, groups temporary mea- provision” requirement enunciated sure service of goal taken the the Presumably, Grutter. where the District equality itself. tiebreaker, employs the racial the schools balanced, will become racially that is (internal 40% 341-42, Id. at quo- white, (plus 60% nonwhite minus a few omitted). tation marks and alterations percentage points, depending par- on the Citing majority contends ticular percentage triggering deviation the racial tiebreaker satisfies this factor tiebreaker that year). Pursuant to the requirement because “this durational can “thermostat,” the District would then stop by be met reviews periodic to determine using the racial But tiebreaker. because preferences whether racial are still neces- makeup Seattle’s residential racially im- sary body diversity,” achieve student 26(and balanced so despite remains the use engages and periodic such tiebreaker), of the racial assignment to the Majority op. at 1192. citing reviews. Yet oversubscribed schools would then occur Grutter in full that “the shows durational (1) only with sibling tiebreaker; use of requirement can be met sunset provi- the distance tiebreaker. Assuming sions in race-conscious policies admissions every that not student also has a sibling periodic reviews determine whether attending schools, one of the District’s are preferences necessary still schools will inevitably racially become im- body diversity.” achieve student again balanced racially because of the im- added). (emphasis balanced makeup, residential thus render- Periodic enough; reviews are not there ing the thermostat useless as a “sunset must be requirement,” some “durational provision.” “logical point,” some end to the racial clas- then, One argue, could that this result sifications. supports the need for use of the racial The District argued point end inis necessarily tiebreaker. Not so. If the tiebreaker, “thermostat” to the in racial imbalance the schools is caused Seattle, 26. About of the residents of white part 70% students live in the northern white, Seattle, Washington of the resi- while 30% of nonwhite students live 75% Sixty-six percent dents are nonwhite. in the part southern Seattle. students, means that a third of non-Asian minori- by the choices but not live, why ties attend schools that are less than 10- to where to then parents though white. And even whites remedying percent that imba- put the onus not just over percent than the stu- constitute parents rather lance schoolchildren, average nation’s city council could create Seattle’s dents? goes move into non- white student to a school that is for whites to “incentives” areas, 80-percent white. and for nonwhites to move white if do not into white areas. And incentives But why expect should we identical task, well, why use accomplish the of blacks whites proportions to live does to compulsion, as District every neighborhood? in each and Peo- city The council could school children? like near ple to live others whom prevent persons to new tak- take measures they identify, the schools mirror in from in living ing up residence Seattle their choices. When asked about their presence might other- areas their where only preferences, residential about sought-after racial balance. wise alter the they to percent of blacks said wished with- protect This would the racial balance entirely entirely on an almost live squarely put the burden in the schools majority white The pre- block. vast upon remedying the racial imbalance that were half or neighborhoods ferred parents, rather than students. half more than African-American—-in words, neighborhoods in which the other course, political can be Of less resistance “disproportion- black concentration was for social expected choosing from ately” high. to the cen- According in racial balanc- engineering experiments sus, happens correspond closely this telling everyone including than in ing, — city- to the actual distribution of black they can neighborhood which voters—into dwellers. Further, regulation by move. residence society, In a it might Shelley complex, heterogenous run afoul of v. Kraem- race er, people natural should sort 92 L.Ed. (1948), space along in themselves out urban although distinguish it is difficult religion and lines of race as well as of why “compelling interest” socializa- pattern firmly This was easily not as social class. tion the races could among by European in in housing established the U.S. regulation in as it pressed in the cities of immigrants who landed schooling regulation. early 20th the North in the 19th simple people truth is some sociologists who studied centuries. own choose live near their members the impor- recognized these settlements group. or racial ethnic by functions “Little tant social served denying is no that American There Italies” and “Poletowns”. in live their own residential blacks often Abigail Stephan Thernstrom27 & Thernst enclaves, cities. especially big our rom, Overcome?, Commentary, Have We and of But same is true of whites Nov. at 51-52.28 every group— racial and ethnic other Jews, Cambodians, course, Chinese, Cubans, continuing Ar- imba- Of is in clustering signifi- residential areas racial and ethnic lance some abs. Such reate, by application Schelling, presently Vice Thomas C. 27. Mrs. Thernstrom is Rights. game theory chapter of his book Mi- Chair of the U.S. Commission Civil four (1978). cromotives and Macrobehavior using Schelling employs an exercise coins evidence that such self-selection 28. Further neighborhood integrated an year's demonstrate how results this Nobel Lau- is submitted byproduct past part government cant efforts to should not be in the busi- minority groups predomi- abetting from ness of or paying exclude for the culti- vation of group identity. nately white areas. Yet as racial tolerance rights and enforcement of civil laws have Schuck, supra, at (quoting Tamar Jaco increased, neighborhoods are becoming by, Someone Else’s House: America’s Un racially more In balanced. Id. 15% Struggle Integration finished (1998))(internal omitted). of African-Americans lived suburbs. alteration 2004, 36% live in suburbs. Id. African- The racial imbalance Seattle’s schools account Americans for 9% of the total sub- results not from de jure segregation nor population, urban “surprisingly close to invidious exclusion of nonwhite proportionality group for a that constitutes Instead, minorities from the schools. only 12 percent of the American results from popula- racially imbalanced residen- Moreover, housing tial patterns, tion.” Id. from 1960 to issue which the District does not even contend it can proportions alter. of African-American living Hence, the method chosen in census tracts that were over 80% black impose racially to balanced schools is fatal- fell from 47% to During under 30%. Id. ly flawed. Because it respond does not to period, same proportion the residing the racial imbalances in Seattle’s residen- in census tracts that were over 50% black makeup, tial only and instead attempts to fell from 70% to important- 50%. Id. Most fix schools, it within the there will be no ly, this balancing place any takes without sunset to the use of the racial tiebreaker. government coercion, except perhaps by 539 U.S. at the housing enforcement of fair laws which (“It would be a day sad indeed were prevent racial discrimination such as Cali- America to quota-ridden become a society, Act, fornia’s Unruh Rights Civil Cal. Civ. with each minority identifiable assigned (West 2001). § Code proportional representation in every desir- No one who understands what makes able walk of life. But is not the great America can quarrel with ethnic programs rationale for preferential pride. home, weekend, At on the in the treatment; the acid justifica- test of their family and neighborhood, Jews will tion will be efficacy their in eliminating the Jews, Italians Italian —and there is any need for racial or preferences ethnic no reason blacks should be different. all.”). Thus, operation District’s Religion and ethnicity are essential the racial tiebreaker fails this factor as parts lives, of our and government well. should not curtail express how we them

in the private sphere. But when it V. life, comes even the benevolent pointed As out in the majority opinion, color coding of recent decades has other courts have concluded that a school proved a recipe for alienation and re- district’s use of a racial tiebreaker sentment. Society need not be color- search of racial balance the student color-less, blind or but the law cannot body passes muster Equal under the Pro- work color-neutral, unless it is and the tection Clause.29 I respectfully disagree. can largely segregated become long as as settles neighborhood down when the is each effectively resident desires at segregated. least one third of his neighbors or her to be of his or her race. Comm., Lynn v. Sch. 418 F.3d Cf. Comfort person When one get preferred moves to set (1st Cir.2005) (en banc) (holding public neighbors, causes chain reaction which high interest, school district had a may District result in the schools use of the racial tiebreaker District’s The opposite hopes in its exact District racial balance to achieve right from their each student’s achieve-a loss of white students infringes upon tramples upon protection campuses. equal of each individ- nature unique and valuable greatest upon stains the his- One our because of We are not different ual. country struggle our tory of our each color; are because we different skin Perhaps discrimination. stain race in- uniqueness That unique. one us is deep be so had we chosen would opinions, background, our corporates our approach equal protection to our different (or thereof), thought, lack our religion our approach often-quoted: jurisprudence, Grutter and our color. attempted color-blind, and nei- Our Constitution between individual strike balance among ther knows nor tolerates classes being equal protection and protections of respect rights, all citizens. of civil at the looking race even when conscious of law. equal citizens before the The use of the racial individual. The District’s peer power- of the most humblest is however, tiebreaker, no bal- attempts such man, as regards ful. law man ance; ninth-grade it instead classifies each surroundings takes no account of his that, I Because of solely race. student color his rights guar- of his when civil program such a violates must conclude supreme anteed land law Equal Protection Clause. are involved. majority’s risks unfortu- decision 537, 559, Plessy Ferguson, v. short-term, the repercussions. nate On 1138, (Harlan, J., 256 41 L.Ed. (a recurring specter flight” of the “white dissenting). elimination of in aftermath of the issue the Or, recently by late more said jure desegregation) manifests itself de Stanley Mosk the California Su- Justice balancing of students will here. The racial Court: preme long-distance transpor- require busing by employ- will disappear Racism never to of some students’ tation schools outside classifying people and of ing devices of in neighborhoods. Parental involvement Rather, measuring rights. thus their (such as those distant Alstyne, gets Van ‘one wrote Professor PTA) undoubtedly will decrease. Parents by beyond it now: beyond getting racism (such as private can education who afford resolute, and credible complete, part in more northern those affluent [njever in one’s commitment to tolerate Seattle) very to their may pull well choose practices or own life or in life and en- children from the District schools government the treat- one’s differential elsewhere, Kur- much like the roll them beings human race. ment other long- On furst Baehwitz children. Indeed, great gov- for that is the lesson term, in a could result such exodus in all we do itself teach: public support ernment decreased tax base and schools, jure using integrated means used to segregation, of de in the absence tailored), narrowly were assignments the edu serve interest “secur[e] race-based (6th Cir.2005); v. diversity,” aff’d, Brewer 416 F.3d 513 of racial cational benefits Dist., Irondequoit 212 F.3d W. Central Sch. to serve interest were nar means used Cir.2000) (2d (holding public tailored); mid 752 rowly v. Coun McFarland Jefferson interest, Sch., compelling had F.Supp.2d dle school district ty Pub. jure using segregation, de (holding public high school absence (W.D.Ky.2004) using assignments "racial iso to reduce race-based district had a interest schools). racially in its assignments maintain lation” race-based 1222-1240

life, life, indo any whatever we treat

person less well than another or to favor for being more than another black red, or is wrong. white or brown Let

that be our fundamental law and we

shall universally have a Constitution

worth expounding.’ Comm.,

Price v. Civil Serv. Cal.3d Cal.Rptr. P.2d

(1980) (Mosk, J., dissenting) (quoting Wil- Race,

liam Van Rites Alstyne, Passage: Court, Supreme Constitution, and the (1979)).

46 U. Chi. 809-10 L.Rev. way to end racial discrimination is

to stop discriminating by race. above,

For expressed the reasons I re-

spectfully dissent and would reverse the court,

judgment of holding the district

District’s use of the racial tiebreaker in its

high school program admissions violates

the equal protection rights of each student particular

excluded from a solely

the basis of that student’s race. notes Grutter set that some benefits suggests the' District

Case Details

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

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Oct 20, 2005

Citation: 426 F.3d 1162

Docket Number: 01-35450

Court Abbreviation: 9th Cir.