Nagel

Rick Nagel

11/24/2006

SUMMARY OF ARGUMENT IN RESPONSE TO BRIEF FOR RESPONDENTS 1 Respondents and their amici have created an appealing narrative to support their position that Seattle’s use of its Integration Positive Tiebreaker to assign students to high schools complies with the requirements of strict scrutiny and is consistent with the Court’s precedents in this area. Respondents are clearly in error. Seattle’s Plan, rather than being narrowly-tailored to achieve its compelling interests, is both underinclusive and overinclusive and bestows benefits upon some students that are denied to others solely on the basis of their race or ethnicity. Respondents claim that no educational benefits are bestowed or denied because its high schools are fungible, differing in no significant respects from one another. If this were so, no benefit would be conferred or denied as a result of the use of the Integration Positive Tiebreaker. But this is simply not the case. A benefit is granted to the student granted admission to a school as a result of his race and denied to the one disfavored by hers. The fact that the schools involved are not denominated “unique” or “special admissions schools” is not dispositive when the facts clearly indicate that they differ in significant ways important to students, parents, and the community. Two non-racial means of assigning students have been considered and rejected by Respondents: a lottery, which has proven to be a satisfactory alternative by Respondents in the companion case to this, Meredith v Jefferson County Board of Education, who use it in assigning students to some of Louisville’s magnet schools; and assignment based on eligibility for the federal free/reduced price lunch program, a clearly a feasible alternative for Respondents, as their stated reasons for rejecting it are unpersuasive. Respondents’ effort to achieve its compelling interests is incoherent, rather than narrowly-tailored. This is the result of the District attempting to address the concerns of a variety of its constituencies, even when doing so works at crosspurposes to its compelling interest in racial integration and reducing racial isolation . The District’s Plan also presents a danger of the very “racial politics” that is one of the primary reasons for the Court requiring that all racial classifications be subjected to strict scrutiny. 1

“Respondents” and “the District” are used interchangeably.

Only by abandoning its adherence to strict scrutiny of racial classifications and adopting rational basis scrutiny can the Court affirm the decision below.

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QUESTION PRESENTED This case presents the question of whether a school district may deny to a high school student, on the basis of his race, access to the school that he and those responsible for his education believe best meets what Respondents claim is their “compelling interest… [in] help[ing] ensure that all students have access to those schools…course offerings, and resources that will enable them to reach their full potential.”

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ARGUMENT IN RESPONSE TO BRIEF FOR RESPONDENTS I.

SEATTLE SCHOOLS ARE NOT FUNGIBLE AND ARE NOT REGARDED AS SUCH BY THE STUDENTS, PARENTS, OR THE COMMUNITY.

Respondents assert that “in the context of voluntarily adopted non-selective school assignments, no student is ‘deprived of an equal opportunity for education on account of race.’ Every student here had the opportunity to be assigned to a Seattle high school, including one of the oversubscribed schools…” Brief for Respondents at page 46. What this statement omits is the fact that, as a result of the Seattle School District’s Integration Positive Tiebreaker, students are deprived, on the basis of race, from attending the high school that they and their parents find to be most suitable for them. The implication that the District’s high schools are fungible commodities and make available roughly the same product to the educational consumer is belied by the actual behavior of parents and students in the educational marketplace, where the costs and benefits of attending particular schools are carefully weighed. The process begins near the end of the eighth grade year when high schools hold open houses to flaunt the virtues of their “product.” I was part of this process for many years at Franklin High School, and never did I meet a parent or student who was indifferent to the choice of a high school, or who thought that having the “opportunity to attend a Seattle high school, including one of the oversubscribed schools” (though not necessarily the one of his choice) was sufficient, much less that the schools were interchangeable. Families consider an array of factors that, together with the interests, capabilities, and temperament of the student involved, determine what school is the best fit, the one most likely to assist the student in reaching his full potential. The District claims a similar objective: its third compelling interest is to “help ensure that all students have access to those schools, faculties (sic), course offerings, and resources that will enable them to reach their full potential” (emphasis added). Brief For Respondents at page 33. Among the school-related factors students and their families take into consideration in choosing a school are proximity to home; the breadth, depth and quality of the curriculum; the availability or absence of honors and advanced placement programs and whether those offered are in subjects that the student wishes to pursue in depth; the leadership skills and philosophy of the principal; the educational backgrounds and teaching skills of the staff; the disciplinary philosophy and practices that govern the school, as well as their success in creating and maintaining a learning environment conducive to the student’s reaching his or her full potential (see Appendices I and K, infra,

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concerning the wide disparity in SAT scores and the availability of Advanced Placement programs in the Seattle Public Schools); a peer group that will encourage the student to reach his full potential; the physical attractiveness and cleanliness of the building; the availability of the material resources needed for the particular student to reach his or her full potential; athletic programs the student is interested in pursuing (lacrosse, for example, is offered at only a few Seattle high schools), and, perhaps the school’s competitive success in such sports; the availability of extra-curricular activities such as drama, debate, or mock trial (debate is offered at few schools and competitive mock trial only at Franklin); the opportunities for developing artistic and musical abilities; and the availability of a student body that is richly diverse and provides the opportunity for greater understanding, appreciation, and less fear of those whose values, practices and priorities differ from theirs but with whom they have so much in common. The individual student’s personality and temperament must be factored into the equation as well, and parents and their children do so in making the highly personal decision as to which high school is the best in assisting the student in “reaching his full potential.” One student may thrive in a school with a relaxed disciplinary philosophy and a non-competitive academic environment that utilizes student projects and peer instruction in achieving its goals, while another needs more structure and thrives in a more traditional, competitive, teacher-centered academic environment accompanied by a more conventional approach to discipline. A third may desire a rigorous academic challenge but in an environment that has a more relaxed dress code, a less rigorous attendance policy, one where children sit at tables or on sofas or the carpet rather than in straight rows of chairs, but one that encourages robust student participation and teachers accept their ideas being challenged. It is the student and his family who must, from this array of competing considerations, choose a school. It is a crucial decision, and most Seattle families devote the time and energy to it in proportion to its importance for their student’s future. To have their choice negated because of their student’s race is to unconstitutionally deprive them of what they see as an important benefit, that of attending the school that their best judgment indicates is the best fit for the student, and thus will best assist him in “achieve[ing] to his full potential,” which the district asserts is of compelling importance to it. II.

PETITIONERS MAY NOT BE DENIED THE RIGHT TO ATTEND THE SCHOOL THEY DEEM BEST SUITED TO THEIR NEEDS ON THE BASIS OF RACE.

To deny students the right to attend the school that, after consideration of the variety of school-related and personal factors outlined above, a student and his family have determined best meets his needs and will make the greatest contribution to his “reaching his full potential,” because of his race is to deny

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him the Equal Protection of the Law guaranteed by the Fourteenth Amendment to the United States Constitution.

The companion case to this, Meredith v Jefferson County Board of Education (05-915), recognizes, to some extent, that Louisville schools aren’t fungible and that to deny students the right to attend a truly unique school on the basis of race is unconstitutional. See Brief for Respondents, 13 and footnote16; at page 48. Central High School was at one time an all-Black School. When the Louisville schools were placed under a desegregation decree, Central became a “magnet career academy” that prepares students for careers in business, law, medicine, and computer technology. No other high school offers a similar program.” Brief for Respondents, at page 13, footnote 16. The district court held that the denial of admission to Central to Black plaintiffs “involved an unconstitutional use of race to allocate a limited government benefit among competing applicants. ‘When it decides who may attend Central, JCPS [Jefferson County Public Schools] uses a racial classification that denies a benefit, causes a harm, and imposes a burden on African-American applicants” (quoting from the federal district court’s “Hampton II” decision, 102 F. Supp. 2d at 381). Id. at page 13. As a result of the federal district court decision in Hampton II, the JCPS Plan “provides that three other magnet schools [in addition to Central] are not subject to the [racial] guidelines because they, like Central, offer unique programs.” These magnet programs use race-neutral lotteries in assigning students. What Louisville has failed to recognize is that even non-magnet schools possess a unique combination of attributes that are considered by parents and students in evaluating the appropriateness of a particular school for their student. Seattle chooses to treat its high schools as fungible but, unlike Louisville, sees none of its high schools as unique when in fact, as pointed out above, each one has a unique combination of virtues and faults. To deny a student the opportunity to enroll in the school that is the best “fit” on the basis of his race denies him the Equal Protection of the Law granted by the Fourteenth Amendment to the United States Constitution. The unique programs available to students attending Franklin and Ballard High Schools illustrate the opportunities denied students to “reach their full potential” when access to them is denied on the basis of a student’s race. Franklin High School’s Mock Trial program is the only one in the District, and Ballard High School’s Biotechnology Academy and its Engineering Academy are equally unique. The latter is called Project Lead The Way and involves “a dynamic partnership between schools, colleges and universities,

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and the private sector, that seeks to increase the number of qualified high school students who complete a two or four-year college engineering or engineering technology program.” When Ballard is oversubscribed, White students may be denied admission to these academies because of their race. The same is true of Black, Latino and Asian American students interested in attending Franklin, taking its Law and Society courses, learning trial advocacy skills, and participating in mock trial regional, state and national competitions. This, despite the efforts of law schools and law firms to recruit members of these groups. Latinos, Blacks and some Asian American groups (e.g. Filipino and Vietnamese Americans) are significantly underrepresented in the legal profession, yet Seattle’s “compelling interests” in promoting racial integration and reducing racial isolation prevent members of groups significantly underrepresented in law schools and the legal profession from having access to the only trial advocacy program available in the District. This doesn’t even pass the rational basis standard of review, much less that requiring strict scrutiny. III.

SEATTLE’S INTEGRATION POSITIVE TIEBREAKER IS NOT NARROWLY TAILORED TO ACHIEVE ITS COMPELLING INTERESTS.

The District’s Plan fails the strict scrutiny requirement in four other ways as well. A. The Integration Positive Tiebreaker Has Lower Priority At The Middle And Elementary School Levels Despite Evidence That It Is There That Respondent’s Compelling Interest In “Promoting the Benefits of Diverse School Enrollments” Is Most Readily Achieved “Promoting the benefits of diverse school enrollments” is apparently a less compelling interest for Respondents at the elementary and middle school levels despite statements they offer indicating that those benefits are most readily inculcated the younger the student. Yet, at the lower grade levels, the student’s living within the attendance boundary of the school is the second tiebreaker (after sibling preference), with the Integration Positive Tiebreaker ranking third. At the high school level, there are no attendance boundaries, making the Integration Positive Tiebreaker the second consideration (again, after sibling preference). As proximity to home is an important consideration for most students, Brief for Respondents at page 33, giving it preference over the Integration Positive Tiebreaker means that there will be fewer instances of its being employed at the elementary and middle school levels (which perhaps explains why only the high school aspect of the assignment plan has been challenged). This was done at the elementary and middle school levels despite the assertion of Respondents that…. “ranking proximity ahead of integration

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as tiebreakers would have caused the city’s segregated housing patterns to be replicated in the schools.” Yet that is exactly what the District has done at both the elementary and middle school levels, where “Reference Area,” (elementary schools) or “Region” (middle schools) have precedence over integration as tiebreakers. “Reference Area” and “Region” are both synonymous with” neighborhood school.” Seattle Public Schools Highlights of the Elementary School Assignment Plan 2005-2006, pages 34. Seattle Public Schools Highlights of the Middle School Assignment Plan 2005-2006, pages 3-4. Yet, at numerous points in the Brief for Respondents, it is implied or stated with the younger children, where the Integration tiebreaker is far less likely to be used, that the District’s compelling interests are more likely to be achieved: •

“[T]here [is] significant evidence” supporting the view “that the benefits [to be derived] from a racially diverse school are more compelling at younger ages.” (Quoting from Comfort v Lynn School Committee, 418 F.3d 1, 15-16 (Ist Cir.), cert. denied, 126 S. Ct. 798 (2005), emphasis added by Respondents at page 25, n. 18 of their brief.

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“These [compelling] interests are broader, deeper, and stronger in the context of public elementary and secondary schools because public schools serve a larger number of students at an impressionable age and because of the special role public schools play in our democracy.” Brief for Respondents at page 14, emphasis added.

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“As Judge Kozinski noted, ‘attitudes and patterns of interaction are developed early in life…” Brief for Respondents at page 27.

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“In reauthorizing the Magnet Schools Assistance Program (“MSAP”) Congress expressly found that it ‘is in the best interests of the United States…to foster meaningful interaction among students of different racial and ethnic backgrounds, beginning at the earliest stage of such students’ education.’” Brief for Respondents at page 29, n. 20. Emphasis added.

This incoherence is hardly the mark of a program narrowly tailored to achieve its compelling objectives and even raises questions as to whether the district really sees the racial diversity in its schools as an interest that is truly compelling. B. The District’s Use of the Integration Tiebreaker Is Both Underinclusive and Overinclusive Respondents’ justification for the District’s failing to remedy racial isolation at its most segregated, least popular schools (underinclusiveness), despite their being the most segregated high

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schools in the District, and attempting to adjust the racial/ethnic configuration of the most popular ones, despite their being racially integrated by any commonsense measure (overinclusiveness), is that an “escape mechanism,” (Brief for Respondents at page 33), is needed for minority students at the most segregated schools (Cleveland, Rainier Beach and Sealth), to have an opportunity to “opt out” of those racially isolated schools thereby “affording equitable access to popular schools,” such as Roosevelt, Ballard and Nathan Hale, Brief for Respondents at page 40, but not to Franklin, a popular, predominantly non-white school with some unique curricular offerings. Such an “escape mechanism” likely would not have been required were it not for the District’s failure to more narrowly tailor its efforts by taking significant steps to make the undersubscribed schools more attractive choices. Rainier Beach, for example, has just 457 students, fewer than 30 of whom are white. Some of Seattle’s elementary schools have more students. Students and staff are resentful at the school’s poor reputation, which they believe is the result of District policies that make Rainier Beach a less attractive choice, resulting in its having fewer students than some of Seattle’s elementary schools: “Teachers and staff members [at the school] blame the low enrollment on the district administration, the result of [its] starving the school of resources and pulling a popular honors program a few years ago that attracted high achievers.” (Seattle Post Intelligencer, Friday, November 3, 2006, “At Rainier Beach High School “We’re Fighting for Our Lives”). Respondents assert that “The Board wanted to give all students, regardless of race or ethnicity, a fair shot at attending one of the most popular schools.” Brief for Respondents at page 33. But we are not told why the Board didn’t take affirmative steps to make Cleveland, Rainier Beach, and Sealth popular schools. In the 2005-06 school year only 17.9% of ninth grade students enrolled at Cleveland selected that school as their first choice, as did only 16.5% and 40% respectively of Rainier Beach and Sealth ninth graders. Individual School Summaries All Regular High Schools 2005-2006 Demographics. As the Integration Positive Tiebreaker was suspended as a result of this litigation, distance from one’s school of choice was the tiebreaker employed to allocate places in the various schools for incoming ninth graders. Even if the use of the Integration Positive Tiebreaker is restored and provides an “escape mechanism” for some, the result for those left behind will be a sparsely populated, unpopular, segregated school. Moreover, Respondents have presented no evidence that the “escape mechanism,” has worked, or will work in the future, as

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intended: the first choices of Cleveland, Rainier Beach, and Sealth students may not be largely integration positive: large number may choose a predominantly non-white school rather than take advantage of the “fair shot” at attending one of the more popular schools. What will remain will be three unpopular, racially segregated schools; the only issue being their size (i.e. how many students will take the opportunity of transferring to Ballard, Garfield, Nathan Hale and Roosevelt). Finally, despite the effort to provide an “escape mechanism” for some students in predominantly minority schools, the district has knowingly allowed the creation of an African American Academy that it had to have known would be comprised almost solely of African American students, and indeed, it is: for the 2005-2006 year this K-8 school had an enrollment of 437 students, 94.3% were African American and 1.4% White. Giving as many of its constituent groups what they want certainly seems to be as compelling an interest for Respondents as the reduction of racial isolation. C. The District Allows Students Virtually Unlimited Discretion to Designate and Change Their Racial/Ethnic Identities “Two ethnicities may be chosen and listed on a student’s record. The first one designated will be used for Federal, State and District requirements. Ethnic designations may be changed at any time.” Seattle Public Schools 2005-2006 Student Assignment Plan and Procedures High School (Grades 9-12) Component. The potential for abuse inherent in a policy that virtually invites the strategic deployment of one’s ethnicity needs little elaboration. What is the “second designated ethnicity” to be used for? Why is it necessary? Students and their families may be excused if they surmise that it is for their strategic deployment when designating their choice of school, particularly when there is no admonition to list only the ethnic designation(s) that the student actually uses to identify himself. D. Using Eligibility for the Federal Free/Reduced Price Lunch Program Is A Viable Race-Neutral Alternative Respondents claim that the District “concluded that substituting economic disadvantage for race, by utilizing data from the federal free or reduced price lunch program, would have been an ineffective proxy,” because “low-income white students in the north end could fill all of the oversubscribed north end schools and eliminate any opportunity for non-white students in the south end to attend those schools.” Brief for Respondents at page 41.

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It is unclear why that would be the case, as the Integration Positive Tiebreaker is second only to sibling preference, and the proposed LowIncome Tiebreaker would merely substitute for it, with school assignments being based on how the percentage of students eligible free or reduced price lunch in a particular school differs from the District average (with the particulars determined by the Board), just as is now the case with the Integration Positive Tiebreaker. What is clear is that the predominantly minority schools are the very ones with the highest percentage of students on free or reduced price lunch , all far above the District average (as might be expected from their also having a disproportionate number of students from single-parent families, while the high schools with smaller minority enrollments have far fewer students in the free/reduced lunch program (and far fewer students from single-parent families). 2005-2006 Demographics Individual School Summaries: All Regular High Schools The Board “reasonably concluded…that eligibility for the federal free or reduced price lunch program was particularly unreliable [as an indicator of economic disadvantage] at the high school level, because many potentially eligible students do not participate.” If the District is aware of students who are eligible, it may include them in the preference. In any case, elevating participation in the free/reduced price lunch program to the status of a tiebreaker should encourage participation on the part of eligible students interested in taking advantage of the increased opportunity to attend one of the more popular schools. IV.

TO AFFIRM THE COURT OF APPEALS REQUIRES ABANDONING THE STRICT SCRUTINY OF RACIAL CLASSIFICATIONS IN THE CONTEXT OF SEATTLE’S STUDENT ASSIGNMENT PLAN.

The consequences of the Court’s affirming the Ninth Circuit are clear: it will have to do so by either approving rational basis scrutiny for public school plans aimed at increasing racial integration and reducing racial isolation, or by reducing “strict scrutiny” to a phrase empty of meaning. Given the variety of the compelling interests being pursued by Respondents, some working at cross-purposes with its principal compelling interests in increasing racial integration and reducing racial isolation, and with the Plan as a whole poorly tailored to those ultimate goals, affirming the lower court will confer virtually unreviewable discretion on school boards to grant and deny benefits on the basis of a student’s race.

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Respondent attempts to justify a result validating its pursuit of competing and contradictory “compelling” interests by citing United States v Paradise 480 U.S. 149, at 174 n. 22, Brief for Respondents at page 40, for the proposition that a “race-conscious order providing only a ‘limited’ remedy [is] narrowly tailored, where it balance[s] several goals, none of which [i]s permitted to dominate at the expense of the others.” In that case, the Court upheld a promotion plan of the Alabama Department of Public Safety (ADPS) that was not "absolute bar" to white advancement, was narrowly drawn to include only specific ranks in the department, and, according to the four justices who voted to affirm it, was "required in light of the Department's long and shameful record of delay and resistance" in complying with past judicial decisions. Courts had first found the Department's practices unconstitutional in 1972. The ADPS policy was designed to remedy the present effects of past racial discrimination and was properly confined to the ranks where those effects were apparent. Paradise is inapposite; being a narrowly-tailored remedy applied in a remedial context, it lends no support for Respondents in their attempt to carve out a publicschool exception to the court’s strict scrutiny of racial classifications. Respondents also quote Grutter, 539 U.S. at 340, for the proposition that “Narrow tailoring…does not require the most aggressive measures possible to serve a single interest,” nor “does [it] require the sacrifice of other important educational goals.” Brief for Respondents at page 40. That may be so, but narrow tailoring does require a coherent plan where, if a racial classification is used in furtherance of a “compelling interest, “ that interest is not undermined in the pursuit of other compelling interests, as where the District consented to the establishment of a segregated school, the K-8 African American Academy; or when it determined to give neighborhood considerations priority over integration for elementary and middle school students despite the clear and convincing evidence cited by Respondents here and the Ninth Circuit en banc panel in its decision, that it is at those levels that the positive lessons of integration are most readily learned. This Court has always carefully scrutinized racial classifications because, as Justice O’Connor stated in Richmond v. J.A. Croson Co.488 U.S. 469 (1989): Absent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining what classifications are `benign' or `remedial' and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics. No one contends that the Respondents’ efforts are motivated by “illegitimate notions of racial inferiority,” but “simple racial politics” is another matter entirely. The issue of who is entitled to use what, and how many, ethnic designations is fraught with the danger of nasty racial politics, particularly when

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even those identifying themselves as bi-racial, and thus legitimately entitled to use whatever ethnic classification is to their advantage, are therefore eligible for any school in the district, while White students are limited in their choices. Imagine the furor if White parents advocated “leveling the playing field” by putting biracial students to their choice of ethnicities and not allowing it to be changed without cause being shown! This is certainly the “simple racial politics” cited by Justice O’Connor in Croson. V CONCLUSION Respondents have lost touch with an essential proposition that the Court has reiterated many times in numerous contexts: rights are held by individuals, not groups. Yet in the Brief for Respondents, at page 45, we are told in bold print that The Plan Did Not Unduly Burden Members of Any Racial Group (emphasis added). This apparently is offered to assure us that no racial group is disproportionately favored or burdened because, if “application of the tiebreaker to Ballard High School…add[s] 41 Asians, 24 African Americans, 15 Hispanics and four Native Americans, Brief for Respondents at page 47, it is likely that a comparable number of non-whites (84) was excluded from predominantly nonwhite schools such as Franklin simply because they were not white. The Meredith Respondents make the same assumption when, at page 46 of their brief they assert that “…if the Plan duly harmed members of any racial group, the elected members of the board surely would have heard that complaint from constituents (emphasis added). Lost in all this is the individual student and his rights, which do not originate in his membership in a particular racial group. In fact, the faces of the young Black, White, Latino, and Asian American students denied the benefit of enrolling in a high school that, overall, best suits their needs, seems covered by a mask of legal abstraction, a phenomenon eloquently described by Judge John Noonan in his Persons and Masks of the Law. But each of student denied enrollment in a Seattle public high school because of his race has a face as well as hopes and dreams. The fact that the denial of these hopes, dreams and aspirations is equally distributed among the various racial and ethnic groups in no way mitigates their denial, or makes it in accord with our Constitution. Each of the 168 students denied admission to Ballard and Franklin was denied the Equal Protection of the Law guaranteed by the Fourteenth Amendment to the United States Constitution; the fact that 84 were White and 84 non-white is of no relevance or Constitutional significance whatsoever. On October 16, a young Japanese American who had recently graduated from the Gonzaga School of Law was sworn into the bar by Judge William Downing. He had graduated from Franklin High School in 1998 after taking courses in Law and Society and trial advocacy and competing in local, state and national mock trial competitions. In his junior year he was voted the most effective attorney at the

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state competition. Had he been subject to Respondent’s “Plan,” he would likely have not had the opportunity to be part of a program to achieve the district’s stated goal of “enabl[ing] him to reach his full potential” solely because of his racial classification (Asian American), even though he would have contributed to Franklin’s diversity because of the few Japanese Americans attending the school. Andy Meeks (see Appendix J, infra) is an example of a White student who might have found his life’s work, or at least a program that “enable[d] [him] to reach [his] full potential” as a result of participating in the Biotechnology Programs at Ballard High School but for the District’s unconstitutional use of a racial classification. He had flourished in a middle school honors program and been accepted for Ballard’s Biotechnology program contingent upon his enrollment in Ballard High School as a ninth grader. His request to enroll was denied, on the basis of his race (White), and that decision was affirmed by the Student Assignment Appeals Board, despite his being an Attention-Deficit-HyperactiveDisorder (ADHD) child, for whom the program would encourage a “focus on concentration skills,” and for which he was recommended by his middle school principal “because of the standards set within the program and the hands-on activities built into the program. Ballard High School is also close to home, which Andy needs because of the support his parents have to give to him. Attending a school farther away from his home could result in discontinuity from (sic) home and school relationships.” One person who encouraged one of Respondents’ amici to file an amicus curiae brief said that he did so because was “concerned that the Seattle community and the District were at risk of letting the rest of the country down by not aggressively defending what little remains of the prior [desegregation] effort.” The effort to preserve “what little remains” of the prior efforts has resulted not in the melting pot being given “a healthy stir” Parents Involved in Community Schools v Seattle School District No., Kozinski, Circuit Judge, concurring, slip opinion, at page 9, but instead a halfhearted, unenthusiastic, one that is neither narrowly-tailored to, or capable of, achieving the compelling interests offered in its defense. Just prior to the beginning of the 2000-01 school year, after the assignment process was complete, this litigation began. “The integration tiebreaker initially determined the assignments for approximately 300 of 3,000 incoming ninth graders.” Brief for Respondents, at page 9. The cost to the students affected, and to adherence to constitutional principles, has been considerable, and includes not just the unique educational opportunities lost, or the additional travel time and other inconveniences imposed upon them and their parents as a result of having to attend a high school farther from their homes. The most important costs to the students of the District’s use of race are incalculable: the cynicism, anger, and sadness that result from the realization that our Constitution is not color blind, that considerations of race can determine whether aspirations are realized, and the suspicion that this is not the last time that their government will deny them a benefit on the basis of their race.

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These costs will not be limited to those not assigned to their chosen school on the basis of race; they will manifest themselves even among those who are not affected by the Tiebreaker but merely aware of it. For the foregoing reasons, the decision of the en banc Court of Appeals for the Ninth Circuit should be reversed.

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