Full opinion text
Opinion by Judge O’SCANNLAIN; Dissent by Judge GRABER O’SCANNLAIN, Circuit Judge. Following the Washington Supreme Court’s resolution of certified state-law questions, we must decide whether the use of race in determining which students will be admitted to oversubscribed high schools in Seattle, Washington, violates the federal Constitution’s Equal Protection Clause. I This opinion marks the fourth time a federal court has addressed the Seattle Public Schools’ use of an explicit “racial tiebreaker” in choosing which student applicants it will admit to the City’s most popular public high schools. See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 137 F.Supp.2d 1224 (2001) [Parents Involved I], rev’d, 285 F.3d 1236 (9th Cir.2002) [Parents Involved II], withdrawn, 294 F.3d 1084 (9th Cir.2002), certifying questions, 294 F.3d 1085 (9th Cir. 2002) [Parents Involved III]. We draw the following restatement of facts largely from Parents Involved II. A Seattle School District Number 1 (the “School District”) operates ten public high schools: Ballard, Chief Sealth, Cleveland, Franklin, Garfield, Ingraham, Nathan Hale, Rainier Beach, Roosevelt, and West Seattle. Four of these (Ballard, Ingraham, Nathan Hale, and Roosevelt) are located north of downtown Seattle; of the remaining six, five (Chief Sealth, Cleveland, Franklin, Garfield, and Rainier Beach) are located south of downtown, and one (West Seattle) is located directly west of downtown. These schools vary widely in quality, as measured by such factors as standardized test scores, numbers of college preparatory and Advanced Placement (AP) courses offered and the availability of an Internal Baccalaureate (IB) program, percentages of students taking AP courses and SATs, percentages of graduates who attend college, Seattle Times college-preparedness rankings, University of Washington rankings, and disciplinary statistics. Moreover, some of the schools offer unique educational programs or opportunities not offered in other schools. The School District has never been segregated by law. However, due to Seattle’s racially imbalanced housing patterns, if Seattle’s children were simply assigned to the high schools nearest their homes, those schools would tend to reflect such imbalance. That is, the demographic profile of the individual high schools would not mirror the demographic makeup of the city’s student population as a whole. As part of its continuing efforts to prevent such imbalance and to promote racial diversity in its high schools, the School District has adopted an open choice plan instead of simply assigning students to the high schools nearest their homes. Pursuant to this system, each student may choose to attend any of the ten high schools in the city, so long as there is room available in that school. The District’s open choice plan provides for a multi-step application process. Each student is first asked to rank the high schools he or she would like to attend. If a student is not admitted to his or her first-choice school because that school is full, the School District attempts to assign him or her to his or her second-choice school, and so on. If a student is not admitted to any of his or her chosen schools, he or she receives a mandatory assignment to a school with available space. Not surprisingly, a significant problem arises when a school becomes “oversubscribed” — that is, when more students want to attend that school than there are spaces available. For the academic year 2000-01, five of the School District’s high schools were oversubscribed and five were undersubscribed. The magnitude of over-subscription during the 2000-01 school year underscores its problematic nature: Approximately 82 percent of students selected one of the oversubscribed high schools as their first choice, while only about 18 percent picked one of the under-subscribed high schools as their first choice. To resolve the dilemma of oversubscription, the School District’s high school assignment plan uses a series of four “tiebreakers” to determine which students will be admitted to each oversubscribed school. The first tiebreaker gives a preference to students with siblings already attending the requested school. This tiebreaker accounts for somewhere between 15 percent and 20 percent of high school assignments. If a school is still oversubscribed after applying this first tiebreaker, the School District proceeds to a second tiebreaker, which is based entirely on race. For purposes of the racial tiebreaker, students are deemed to be of the race specified in their registration forms, which ask parents to identify their child’s race. Because registration must be completed in person by a parent, if a parent declines to specify a racial category, the School District assigns the student a category based on a visual inspection of the parent (and, if present, the student) at the time of registration. It is this second — racial—tiebreaker that spawned the present suit. Use of the racial tiebreaker is designed to balance the racial makeup of the city’s public high schools. Accordingly, if an oversubscribed school’s demographic profile deviates from the overall demography of Seattle’s student population (approximately 40 percent white and 60 percent non-white) by more than a set number of percentage points, the School District designates that school “integration positive.” The racial tiebreaker is then applied in the course of determining admissions to such schools, so that students whose race (coded by the School District simply as white or non-white) will push an integration positive school closer to the desired racial ratio are automatically admitted. Thus, at Franklin (for instance), whites are admitted preferentially because they are white; and at Ballard, non-whites are admitted preferentially because they are not white. Ultimately, the School District’s use of this racial tiebreaker determines where about 10 percent of applicants will be admitted. Once all students of the preferred racial category are admitted to an oversubscribed high school, any remaining “ties” are broken by resort to a third variable: distance. Quite simply, applicants are admitted on the basis of the mileage between their homes and the school to which they seek admission, with those who live closest admitted first. Although a fourth tiebreaker exists — a random lottery — it rarely is invoked because distances are calculated to one hundredth of a mile for purposes of the preceding tiebreaker. B Parents Involved in Community Schools (“Parents”) is “a nonprofit corporation formed by parents whose children have been or may be denied admission to the high schools of their choosing solely because of race.” It commenced this legal action in July of 2000, contending that the School District’s use of the racial tiebreaker for high school admissions is illegal under both state and federal law. Specifically, Parents alleged that by using race to decide who will be admitted to the oversubscribed high schools, the School District engages in illegal racial discrimination prohibited by the Washington Civil Rights Act (“Initiative 200”), the Equal Protection Clause of the Fourteenth Amendment, and Title VI of the Civil Rights Act of 1964. Both Parents and the School District moved for summary judgment on all claims; neither contended that genuine issues of material fact precluded summary judgment. In a published opinion dated April 6, 2001, the district court upheld the use of the racial tiebreaker under both state and federal law, granting the School District’s motion and denying the Parents’s. See Parents Involved I, 137 F.Supp.2d at 1240. Parents timely filed an appeal in this court and, on April 16, 2002, we issued an opinion reversing the district court’s decision. Acting “in our constitutionally ordained role as oracles of Washington law,” Parents Involved II, 285 F.3d at 1243, we prophesied that the School District’s use of the racial tiebreaker violated Initiative 200. Id. at 1244. Simultaneously, we enjoined the School District from using the racial tiebreaker in its system of high school admissions pending further order from this court. Id. at 1257. While the School District’s petitions for rehearing and rehearing en banc were pending before us, it “bec[a]me clear that [we could not] provide a definitive [legal] answer before assignments [were to] be made for the 2002-03 year, and therefore, ... that our sole reason for not certifying this question to the Washington Supreme Court ha[d] dissolved.” Parents Involved III, 294 F.3d at 1086. Consequently, we granted the petition for rehearing, withdrew our opinion, and vacated our injunction. See id. Simultaneously, we entered an order certifying to the Supreme Court of Washington the question whether [b]y using a racial tiebreaker to determine high school assignments, [the] Seattle School District Number 1 “discriminate[s] against, or grantfs] preferential treatment to, any individual or group on the basis of race, ... color, ethnicity, or national origin in the operation of public education” in violation of Initiative 200.... ? Id. at 1087. The Supreme Court of Washington accepted certification, heard oral argument in the matter, and on June 26, 2003 issued an opinion concluding that 1-200 “does not prohibit the Seattle School District’s open choice plan tie breaker based upon race so long as it remains neutral on race and ethnicity and does not promote a less qualified minority applicant over a more qualified applicant.” Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 149 Wash.2d 660, 72 P.3d 151, 166 (2003). It therefore “returned] the case to the federal court for further proceedings consistent with [its] resolution of the questions of Washington law,” id. at 167, and formally notified this court of its actions by delivery of a Certificate of Finality on September 8, 2003. All state law issues having been definitively decided, the parties prepared supplemental briefing on the remaining federal constitutional question in light of the Supreme Court’s intervening decisions in the University of Michigan affirmative actions cases—Gratz v. Bollinger, 539 U.S. 244, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003), and Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003)—followed by reargument. II As a preliminary matter, we must address whether the passage of time has mooted Parents’s action. Article Ill’s case-or-controversy requirement mandates that the parties to a federal court action must “continue to have a personal stake in the outcome of the lawsuit” at all stages of the proceedings. United States v. Verdin, 243 F.3d 1174, 1177 (9th Cir.2001) (internal quotation marks and citation omitted). “This means that, throughout the litigation, the plaintiff must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477-478, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990)). As with any jurisdictional inquiry — and notwithstanding the parties’ unhesitating agreement that Parents’s action remains a live controversy appropriately subject to federal adjudication on the merits — we are charged with an independent constitutional responsibility to verify our authority to resolve their litigation. See Dittman v. California, 191 F.3d 1020, 1025 (9th Cir.1999). Initially, we have little doubt that the associational aspect of Parents’s standing has not been mooted. At reargument, counsel for Parents informed us that several of the association’s members have children who, over the course of the next several years, will be applying for admission to the School District’s public high schools and who thus will be subject to the admissions policies established by the School Board. Because “some members of the [association] [c]ould [continue to] have ... standing to bring this suit in their own right,” Int'l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Brock, 477 U.S. 274, 286, 106 S.Ct. 2523, 91 L.Ed.2d 228 (1986), and because the passage of time has not called into question Parents’s satisfaction of the other requirements for associational standing, see Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000), we are satisfied that the associational aspect of Parents’s standing has continued vitality. Perhaps more troubling, however, is the disclosure that the School District is not currently employing — and has not since the 2001-02 school year employed— the racial tiebreaker that Parents challenge in this litigation. As noted earlier, we enjoined the School District’s use of the racial tiebreaker with our initial disposition of this case. See Parents Involved II, 285 F.3d at 1257. And although we vacated that injunction with the withdrawal of our initial opinion, see Parents Involved III, 294 F.3d at 1086, the School District has voluntarily declined to reinstate its racial tiebreaker during the pendency of this litigation. With the passage of time, the voters of Seattle have elected a new School Board, and there is at least a remote possibility that the new Board will opt not to resume its use of the racial tiebreaker that prompted this lawsuit. Nonetheless, it is beyond cavil that “ ‘a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice’ unless it is ‘absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’ ” Buckhannon Bd. & Care Home v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 609, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (emphases added) (quoting Friends of the Earth, 528 U.S. at 189, 120 S.Ct. 693, with internal quotation marks and citations omitted). Indeed, in these circumstances, a “heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again lies tvith the party asserting mootness.” Adarand Const., Inc. v. Slater, 528 U.S. 216, 222, 120 S.Ct. 722, 145 L.Ed.2d 650 (2000) (emphasis in original) (internal quotation marks and citations omitted). The problem here, of course, is that neither party has asserted that this case is moot: When asked at oral argument about the possibility that we lack jurisdiction over Parents’s action, counsel for the School District not only maintained that this controversy remains live, but questioned whether the Board would have him defend the racial tiebreaker if it did not intend to reinstate the challenged policy in the future. Indeed, where a court must address sua sponte the possibility that the passage of time has mooted litigation on alternative grounds (for instance, that the associational aspect of a plaintiffs standing no longer satisfies Article III jurisdictional requirements), we find it hard to imagine that a defendant’s voluntary cessation could ever operate itself to moot the underlying litigation. By virtue of the fact that neither party will have alleged mootness in the first instance, there is no one to “satisfy the heavy burden of persuasion” that well-established doctrinal precepts require a party to demonstrate before voluntary cessation can be held to moot a once live case or controversy. See United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968). We therefore conclude that the present case remains live. Ill We now turn to the heart of Parents’s claim: that the School District’s use of race to determine who will be admitted to its oversubscribed public high schools constitutes illegal racial discrimination in violation of both the Fourteenth Amendment and Title VI. A Forged in the crucible of Reconstruction and “[purchased at the price of immeasurable human suffering,” Adarand Const., Inc. v. Peña, 515 U.S. 200, 240, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (Thomas, J., concurring), the Equal Protection Clause of the Fourteenth Amendment mandates that “No state shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. “Because the Fourteenth Amendment ‘protects persons, not groups,’ all governmental action based on race' — a group classification long recognized as in most circumstances irrelevant and therefore prohibited — should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed.” Grutter, 539 U.S. at 326, 123 S.Ct. 2325 (quoting Adarand, 515 U.S. at 227, 115 S.Ct. 2097 (1995) (quoting Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943))) (emphasis in original); see also Ho v. S.F. Unified Sch. Dist., 147 F.3d 854, 865 (9th Cir.1998) (“It is as a person that each of us has these rights that are so majestically secured.”). Therefore, “any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest of judicial scrutiny.” Adarand, 515 U.S. at 224, 115 S.Ct. 2097; see also Coalition for Econ. Equity v. Wilson, 122 F.3d 692, 702 (“The standard of review under the Equal Protection Clause does not depend on the race or gender of those burdened or benefited by a particular classification .... ‘[A]ny individual suffers an injury when he or she is disadvantaged by the government because of his or her race.’ ”) (quoting Adarand, 515 U.S. at 230, 115 S.Ct. 2097). For race-based educational policies “[t]o withstand strict scrutiny analysis, respondents must demonstrate that the[ir] use of race in [their] current admission program employs ‘narrowly tailored measures that further compelling governmental interests.’ ” Gratz, 539 U.S. at 270, 123 S.Ct. 2411 (quoting Adarand, 515 U.S. at 227, 115 S.Ct. 2097); see also Hunter v. Regents of Univ. of Calif., 190 F.3d 1061, 1063 (9th Cir.1999) (“To meet the strict scrutiny test, the Regents must demonstrate that ... consideration of race/ethnicity is narrowly tailored to serve a compelling governmental interest.”) (first emphasis added); Ho, 147 F.3d at 865 (“Once the plaintiffs established the School District’s use of racial classifications ... the School District has the duty to justify them.... At trial, the School District will bear the burden of proving that [its use of race] is a ‘narrowly tailored measure that furthers compelling government interests.’ ”) (quoting Adarand, 515 U.S. at 227, 115 S.Ct. 2097) (emphasis added); Monterey Mech. Co. v. Wilson, 125 F.3d 702, 713 (9th Cir.1997) (“The burden of justifying different treatment by ethnicity or sex is always on the government.”). Notwithstanding its remarkable assertions to the contrary, it is thus quite plainly the School District which bears the weighty burden of demonstrating that its use of the racial tiebreaker in its open choice admissions program satisfies the “most searching examination” demanded by strict scrutiny, Gratz, 539 U.S. at 270, 123 S.Ct. 2411 (quotations and citations omitted): that is, that the racial tiebreaker is designed to further a compelling governmental interest, and that the manner in which it does so is narrowly tailored to achieve that interest. B In papers prepared for purposes of this litigation, the School District has proffered an array of interrelated and putatively compelling interests in pursuit of which it seeks to employ the racial tiebreaker in its open choice high school admissions program. These myriad interests include the School District’s desires to achieve: “the educational benefits of attending a racially and ethnically diverse school”; “integration of schools which, as a result of housing patterns and the tendency of many parents to choose schools close to home, would otherwise tend to become racially isolated”; “ensuring that public institutions are open and available to all segments of American society”; “alleviating de facto segregation”; “increasing racial and cultural understanding”; “avoiding racial isolation”; fostering “cross-racial friendships”; and “reducing] prejudice and increasing] understanding of cultural differences.” Perhaps its most articulate statement supporting use of the'racial tiebreaker is the School Board’s policy “Statement Reaffirming [the] Diversity Rationale.” It explains: Diversity in the classroom increases the likelihood that students will discuss racial or ethnic issues and be more likely to socialize with people of different races. Diversity is thus a valuable resource for teaching students to become citizens in a multi-raeial/multi-ethnie world. Providing students the opportunity to attend schools with diverse student enrollment also has inherent educational value from the standpoint of education’s role in a democratic society.... Diversity brings different viewpoints and experiences to classroom discussions and thereby enhances the educational process. It also fosters racial and cultural understanding, which is particularly important in a racially and culturally diverse society such as ours. Based on the foregoing rationale, the Seattle School District’s commitment is that no student should be required to attend a racially concentrated school. The District is also committed to providing students with the opportunity to voluntarily choose to attend a school to promote integration. The District provides these opportunities for students to attend a racially and ethnically diverse school, and to assist in the voluntary integration of a school, because it believes that providing a diverse learning environment is educationally beneficial for all students. To the extent Parents once may have been able to make out a colorable claim that the only interest sufficiently compelling to justify the use of racial classifications is the remediation of past official discrimination, such an argument no longer obtains. In Smith v. University of Washington, this court followed Justice Powell’s solo concurrence in Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), observing that “educational diversity is a compelling governmental interest that meets the demands of strict scrutiny of race-conscious measures.” 233 F.3d 1188, 1201 (9th Cir.2000). And in its landmark 2003 opinion in Grutter, the Supreme Court settled any debate over the validity of employing racial preferences for non-remedial purposes by asserting that it had “never held that the only governmental use of race that can survive strict scrutiny is remedying past discrimination.” Grutter, 539 U.S. at 328, 123 S.Ct. 2325 (O’Connor, J.). Indeed, it expressly sanctioned the so-called “diversity rationale” articulated by the University of Michigan in support of employing such preferences in determining which applicants would be offered admission to its selective law school. See id. 328-33, 123 S.Ct. 2325. It is upon Justice O’Connor’s elaboration of the diversity rationale that we now focus our attention. 1 In part due to a recognition that the diversity rationale had often been criticized as “amorphous,” “abstract,” “malleable,” and “ill-defined,” see, e.g., Metro Broad., 497 U.S. at 612, 110 S.Ct. 2997 (O’Connor, J., dissenting); Wessmann v. Gittens, 160 F.3d 790, 796 (1st Cir.1998); Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 354 (D.C.Cir.1998); Johnson v. Bd. of Regents, 106 F.Supp.2d 1362, 1371 (S.D.Ga.2000); Tracy v. Bd. of Regents, 59 F.Supp.2d 1314, 1321 (S.D.Ga.1999); cf. Grutter, 539 U.S. at 350 & 354 n. 3, 123 S.Ct. 2325 (Thomas, J., dissenting) (deriding the interest in “diversity” as “a faddish slogan of the cognoscenti” and describing the concept as being “more a fashionable phrase than it is a useful term”), the University of Michigan and its aligned amici mounted a concerted effort to bring much-needed clarity. In a remarkable series of briefs, these groups assembled both social scientific evidence and observational reports from business, industry, and military leaders regarding the “substantial” educational and societal benefits that flow from an educational institution’s “enrollment of] a critical mass of minority students.” Grutter, 539 U.S. at 330, 123 S.Ct. 2325 (citation and quotation omitted). Among the benefits attributed by the University and its amici to the enrollment of a minimal core of minority students, and embraced by the Court under the broad rubric of the diversity rationale, are the promotion of “cross-racial understanding,” the “breaking] down of racial stereotypes,” and the fact that “classroom discussion is livelier, more spirited, and simply more enlightening and interesting when the students have the greatest possible variety of backgrounds.” Id. at 330, 123 S.Ct. 2325 (citations and quotations omitted). Justice O’Connor’s opinion for the Court also explained that “student body diversity promotes better learning outcomes, and better prepares students for an increasingly diverse workforce and society,” and noted “that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.” Id.; see also Brief for Respondents at 11, Gratz v. Bollinger, 539 U.S. 244, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003) (No. 02-516) (“Racial and ethnic diversity is educationally important because, notwithstanding decades of progress, there remain significant differences in our lives and perceptions that are undeniably linked to the realities of race. Continuing patterns of residential segregation, for example, mean that the daily events and experiences that make up most Americans’ lives take place in strikingly homogenous settings. As a result, most students entering college have had few opportunities for meaningful interactions across lines of race and ethnicity. This separation ... provides little opportunity to disrupt racial stereotypes .... ”). Finally, the majority emphasized testimony that, in the absence of race-conscious admissions, “underrepresented minority students would have comprised 4 percent of the [school’s] entering class in 2000, instead of the actual figure of 14.5 percent,” id. at 320, 123 S.Ct. 2325, and that a principal aim of the program was to prevent racial isolation. Id. at 318 & 319, 123 S.Ct. 2325; see also id. at 380-81, 123 S.Ct. 2325 (Rehnquist, C.J., dissenting) (noting that the university’s focus on achieving a “critical mass” of minority students was premised on “enrolling] enough minority students to provide meaningful integration of its classrooms and residence halls” and reducing the effects of “isolation] by racial barriers”) (quoting Brief for Respondents at 5). 2 Recognizing that each of the School District’s proffered interests in using its racial tiebreaker falls comfortably within the diversity rationale as that justification’s aims and benefits were articulated to (and embraced by) the Court, see supra at 960-61, Parents and their amici seek to cabin Grutter’s reach by contending that the Court’s compelling interest analysis was expressly limited to the use of race in admissions in the context of “the expansive freedoms of speech and thought associated with the university environment.” Grutter, 539 U.S. at 330. We of course acknowledge that Grutter addressed the use of racial classifications in higher education, and that language in the Court’s opinion reflects that factual underpinning. But we cannot identify a principled basis for concluding that the benefits the Court attributed to the existence of educational diversity in universities cannot similarly attach in high schools. We simply do not see how the government’s interest in providing for diverse interactions among 18 year-old high school seniors is substantially less compelling than ensuring such interactions among 18 year-old college freshmen. Cf. Grutter, 539 U.S. at 347, 123 S.Ct. 2325 (Scalia, J., dissenting) (“The ‘educational benefit’ that the University ... seeks to achieve by racial discrimination consists, according to the Court, of ‘cross-racial understanding,’ and ‘better preparation of students for an increasingly diverse workforce and society,’ all of which is necessary not only for work, but also for good ‘citizenship.’ This is not, of course, an ‘educational benefit’ [but] the same lesson taught to ... people three feet shorter and twenty years younger ... in institutions ranging from Boy Scout troops to public-school kindergartens.”) (quoting Grutter, 539 U.S. at 331, 123 S.Ct. 2325) (citations and alterations omitted). 3 At bottom, Grutter plainly accepts that constitutionally compelling internal educational and external societal benefits flow from the presence of racial and ethnic diversity in educational institutions. In support of its racial tiebreaker, the School District invokes precisely the interest sanctioned by the Supreme Court: securing those benefits. Those benefits are as compelling in the high school context as they are in higher education. We therefore conclude that the District has satisfied its first burden under strict scrutiny: It has articulated a compelling interest in pursuit of which it seeks to use a racial classification. C Of course, to hold that the School District has invoked a compelling interest in pursuit of which it seeks to employ the racial tiebreaker is merely to begin our inquiry. Because “ ‘racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification,’ ” Gratz, 539 U.S. at 270, 123 S.Ct. 2411 (quoting Fullilove, 448 U.S. at 537, 100 S.Ct. 2758 (Stevens, J., dissenting)), the School District also bears the burden of demonstrating that its use of the racial tiebreaker is narrowly-tailored to further that interest. See Hunter, 190 F.3d at 1063; Ho, 147 F.3d at 865. As with respect to compelling interest analysis, Grut-ter and Grata shed much-needed light on the once crepuscular contours of the narrow tailoring test applicable to the non-remedial use of racial preferences in educational admissions. Careful attention to these decisions — and the ways they addressed the divergent undergraduate and law school admissions schemes at the University of Michigan — is especially warranted. 1 As Grutter outlined, the admissions process at the University of Michigan Law School functions roughly as follows. Every completed application received by the Law School is both read and considered holistically by admissions officials. A significant focus of the decisionmakers is on an applicant’s academic ability, as measured by his or her undergraduate grade point average and score on the Law School Admissions Test (LSAT). Even so, these “hard” measures are insufficient to resolve admissions decisions: Just as “the highest score does not guarantee admission!, neither] does a low score disqualify an applicant.” Grutter, 539 U.S. at 315, 123 S.Ct. 2325. Instead, admissions officials must look beyond those measures to “soft” variables, including “the enthusiasm of the [applicant’s] recommenders, the quality of the undergraduate institution, the quality of the applicant’s essay, and the areas and difficulty of undergraduate course selection,” which in turn are used to help measure “an applicant’s likely contributions to the intellectual and social life of the institution.” Id. (internal quotations omitted). This focus on “soft” variables aims to ensure that the Law School can “ ‘achieve that diversity which has the potential to enrich everyone’s education and thus make a law school class stronger than the sum of its parts.’ ” Id. (quoting the Law School’s written admissions policy). While recognizing that there are “ ‘many possible bases for diversity admissions,’ ” the admissions policy “reaffirm[s] the Law School’s longstanding commitment to ‘one particular type of diversity,’ that is, ‘racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against ..., who without this commitment might not be represented in our student body in meaningful numbers.’ ” Id. at 316, 123 S.Ct. 2325 (quoting policy). Of note, the policy seeks to ensure the enrollment of a “critical mass” of underrepresented minority students through the use of a calibrated racial preference — in the absence of which such students would comprise just 4 perc^it of the law school’s entering class, and thereby be less likely as a group fully to “ ‘make unique contributions to the character of the Law School.’ ” Id. (quoting policy). Crucially, “[t]he policy does not define diversity ‘solely in terms of racial and ethnic status,’ ” id. (quoting policy), but rather gives “serious consideration to all the ways an applicant might contribute to a diverse educational environment.” Id. at 337, 123 S.Ct. 2325. Turning to the constitutionality of the program, Justice O’Connor immediately honed in on its core features: its flexibility and breadth. In concert with the baseline constitutional prohibition against quotas, id. at 334, 123 S.Ct. 2325 (“[A] race-conscious admissions program cannot use a quota system — it cannot ‘insulate each category of applicants with certain desired qualifications from competition with all other applicants.’ ”) (quoting Bakke, 438 U.S. at 315, 98 S.Ct. 2733 (Powell, J., concurring)), the law school “consider[s] race [and] ethnicity more flexibly as a ‘plus’ factor in the context of individualized consideration of each and every applicant.” Id. Moreover, she explained, the Law School’s policy strenuously avoids evaluating individual applicants “in a way that makes [their] race or ethnicity the defining feature of [their] application.” Id. at 337, 123 S.Ct. 2325. Conforming to the “paramount” constitutional requirement of truly “individualized consideration in the context of a race-conscious admissions program,” id. at 337, 123 S.Ct. 2325, the Law School’s admissions officers shun a “policy, either de jure or de facto, of automatic acceptance or rejection based on any ‘soft’ variable,” and awards “no mechanical, predetermined diversity ‘bonuses’ based on race or ethnicity.” Id. Quite in contrast, the school refuses to “limit in any way the broad range of qualities and experiences that may be considered valuable conti«ibutions to student body diversity,” id. at 338, 123 S.Ct. 2325, and illustrates the strength of its commitment to that principle by highlighting a variety of non-racial criteria the institution considers valuable — for instance, that an applicant has lived or traveled abroad, speaks more than one language, has overcome personal adversity, or has a strong record of community service or even a prior career in a non-legal profession. Id. (discussing policy). And the Law School pays more than mere lip service to this commitment: It “actually gives substantial weight to diversity factors besides race,” allowing those factors to “make a real and dispositive difference for nonminority applicants as well.” Id. In short, the law school’s admissions program “considers race as one factor among many, in an effort to assemble a student body that is diverse in ways broader than race,” id. at 340, 123 S.Ct. 2325, and as a consequence, “does not unduly harm nonminority applicants.” Id. at 341, 123 S.Ct. 2325. Finally, the Court observed that the Law School has “sufficiently considered workable race-neutral alternatives,” id. at 340, 123 S.Ct. 2325, and that periodic reviews (along with an eventual legal cutoff) ensure that the Law School’s use of race will be time-limited, in concert with the Constitution’s demand that any “ ‘deviation from the norm of equal treatment of all racial groups [be] a temporary matter, a measure taken in the service of the goal of equality itself.’ ” Id. at 342, 123 S.Ct. 2325 (quoting Croson, 488 U.S. at 510, 109 S.Ct. 706 (plurality opinion)). In light of the policy’s careful design and its adherence to the strict limits placed on the non-remedial use of race, the Court upheld the Law School’s program as narrowly tailored. 2 At issue in Grate, however, the undergraduate admissions program at the University’s College of Literature, Sciences, and the Arts (LSA) — though purportedly pursuing the same benefits from diversity as the Law School — had structured its admissions program around such a crude racial classification that the school had not even come close to satisfying the narrow tailoring requirement. Prior to its 1998 admissions cycle, LSA developed an admissions “selection index” that assigned each applicant a score of up to 150 points based on his or her grades, test scores, high school quality and curricular rigor, instate residency, legacy status, personal essay, and personal achievement or leadership. The index was then divided into strict dispositional bands: students scoring 100-150 points were admitted; students scoring 95-99 points were either admitted or had consideration of their application postponed; students scoring 90-94 points either had consideration of their application postponed or were admitted; students scoring 75-89 points were delayed or postponed; and students scoring fewer than 75 points were delayed or rejected. Gratz, 539 U.S. at 255, 123 S.Ct. 2411. Although the LSA system superficially appeared to provide for individualized consideration of each applicanU-at least to the extent that each application was reviewed to ascertain the presence of various “soft” variables for mechanical scoring— such a rosy portrait was belied by the underlying reality of the policy. Tucked into a “ ‘miscellaneous’ category, an applicant was entitled to 20 points based upon his or her membership in an under-represented racial or ethnic minority group.” Id. Indeed, during 1999 and 2000, “every applicant from an underrepresented racial or ethnic group was awarded 20 points,” id. at 256, 123 S.Ct. 2411, at least one-fifth of the points necessary to secure admission to LSA. It therefore is not surprising that the Court rejected LSA’s program on narrow tailoring grounds. Put simply, the program provided no serious individualized consideration of the applicant’s potential contributions to educational diversity. The LSA’s policy automatically distributes 20 points to every single applicant from an ‘underrepresented minority’ group, as defined by the University. The only consideration that accompanies this distribution of points is a factual review of an application to determine whether an individual is a member of one of these minority groups. Moreover, unlike Justice Powell’s example, where the race of a ‘particular black applicant’ could be considered without being decisive, the LSA’s automatic distribution of 20 poiiits has the effect of making ‘the factor of race ... decisive’ for virtually every' minimally qualified underrepresented minority applicant. Id. at 272, 123 S.Ct. 2411 (quoting Bakke, 438 U.S. at 317, 98 S.Ct. 2733 (Powell, J., concurring)); see also id. at 273, 98 S.Ct. 2733 (“[A]s the University has conceded, the effect of automatically awarding 20 points is that virtually every qualified underrepresented minority applicant is admitted.”). Having so easily concluded that the LSA policy was not narrowly tailored, the Court concluded by swiftly rejecting the University’s lame suggestion that “ ‘the volume of applications and the presentation of applicant information make it impractical’ ” to predicate admissions on individualized consideration. Id. at 275, 98 S.Ct. 2733 (quoting LSA’s Brief). “[T]he fact that the implementation of a program capable of providing individualized consideration might present administrative challenges does not render constitutional an otherwise problematic system.” Id. (citing Croson, 488 U.S. at 508, 109 S.Ct. 706). 3 From the Court’s decisions in Grutter and Gratz—and drawing upon well-established narrow tailoring principles—we derive the following governing constraints. First, where an institution pursues non-remedial objectives, racial quotas are strictly prohibited. Gratz, 539 U.S. at 293, 123 S.Ct. 2411 (Souter & Ginsburg, JJ., dissenting) (“Justice Powell’s opinion in [Bakke ] rules out a racial quota or set-aside, in which race is the sole fact of eligibility for certain places in a class.”); Grutter, 539 U.S. at 334, 123 S.Ct. 2325. Second, any consideration of race for non-remedial purposes must be flexible; an educational institution may not treat an applicant’s race or ethnicity as the touchstone of his or her individual identity, but instead must meaningfully evaluate each applicant’s potential diversity contributions in light of all pertinent factors. Gratz, 539 U.S. at 271-74, 123 S.Ct. 2411; id. at 279, 123 S.Ct. 2411 (O’Connor, J., concurring); Grutter, 539 U.S. at 337-39, 123 S.Ct. 2325; Bakke, 438 U.S. at 315 & 317-18, 98 S.Ct. 2733; Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 345 (4th Cir.2001) (Trader, J., concurring); Wessmann, 160 F.3d at 798 & 800; Eisenberg v. Montgomery Cty. Pub. Schs., 197 F.3d 123, 132-33 (4th Cir.1999); Tuttle v. Arlington Cty. Sch. Bd., 195 F.3d 698, 707 (4th Cir.1999). Third, it follows that an institution’s use of race must be neither mechanical nor conclusive. Gratz, 539 U.S. at 271-72, 123 S.Ct. 2411; id. at 278-79, 123 S.Ct. 2411 (O’Connor, J., concurring); Grutter, 539 U.S. at 336-37, 123 S.Ct. 2325. After all, automatically awarding a fixed racial preference to every single racially-preferred applicant signals an institutional disregard for the far broader array of diversity characteristics that produce the educational and social benefits deemed compelling by the Court. Bakke, 438 U.S. at 317, 98 S.Ct. 2733 (Powell, J., concurring). And any racial preference that necessarily results in the admission of an applicant demonstrates the pursuit of prohibited racial balancing simpliciter. See, e.g., Grutter, 539 U.S. at 337, 123 S.Ct. 2325 (“There is no policy, either de jure or de facto, of automatic acceptance.... ”); Wessmann, 160 F.3d at 799; cf. Eisenberg, 197 F.3d at 131; Tuttle, 195 F.3d at 707. Fourth, narrow tailoring demands that the institution seeking to employ racial preferences at the very least demonstrate an earnest consideration of race-neutral alternatives. Grutter, 539 U.S. at 339-40, 123 S.Ct. 2325; Wygant, 476 U.S. at 280 n. 6, 106 S.Ct. 1842; Tuttle, 195 F.3d at 706; Podberesky, 38 F.3d at 160-61. Fifth, serious efforts must be made to minimize the adverse impact of racial preferences on non-preferred group members; a programmatic use of race should be no more potent than necessary to achieve the compelling interest being pursued. Grutter, 539 U.S. at 341, 123 S.Ct. 2325; Wygant, 476 U.S. at 287, 106 S.Ct. 1842 (O’Connor, J., concurring in part and dissenting in part); Bakke, 438 U.S. at 308, 311, 314-15, 98 S.Ct. 2733 (Powell, J., concurring); Wessmann, 160 F.3d at 798. Sixth, and finally, any program of racial preferences, regardless of its ultimate aspirations, must be time-limited. Grutter, 539 U.S. at 342, 123 S.Ct. 2325; Croson, 488 U.S. at 510, 109 S.Ct. 706 (plurality opinion by O’Connor, J.); Hayes v. N. State Law Enforcement Ass’n, 10 F.3d 207, 216 (4th Cir.1993). 4 The School District’s racial tiebreaker fails virtually every one of the narrow tailoring requirements. a First (and second), in contrast to the “flexible, nonmechanical,” evaluation of race employed by the University of Michigan Law School in the course of a “highly individualized, holistic review” which scrupulously “ensure[s] that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application,” Grutter, 539 U.S. at 337, 123 S.Ct. 2325, the School District’s racial tiebreaker is virtually indistinguishable from a pure racial quota. As Grutter defined that forbidden fruit of non-remedial racial preferences, “Quotas impose a fixed number or percentage which must be attained, or which cannot be exceeded, and insulate the individual from comparison with all other candidates for the available seats.” Grutter, 539 U.S. at 335, 123 S.Ct. 2325 (citations and quotations omitted). Yet this is almost precisely how the District itself has described the operation of its program— with a single variance: rather than impose a racial floor or ceiling, the School District’s racial tiebreaker establishes both a floor and a ceiling. [I]f an oversubscribed school has fewer than 45 [percent] students of color/more than 55 [percent] whites, students of color will be assigned ahead of white students who live closer to the school. Conversely, if an oversubscribed school has fewer than 25 [percent] white students/more than 75 [percent] students of color, white students will be assigned ahead of students of color who live closer. b Indeed, to an even greater degree than the University of Michigan’s undergraduate admissions program, the School District — third—automatically and mechanically admits, using a computer algorithm designed to implement the ceilings and floors framing its racial tiebreaker, hundreds of white and non-white applicants solely because of their race. Cf. Gratz, 539 U.S. at 270, 123 S.Ct. 2411 (“[T]he University’s policy, which automatically distributes ... one-fifth of the points needed to guarantee admission ... to every single ‘underrepresented minority’ applicant solely because of race, is not narrowly tailored ....”) (emphasis added); id. at 271-72, 123 S.Ct. 2411 (“The only consideration that accompanies this distribution of points is a factual review of an application to determine whether an individual is a member of one of these minority groups.”). Thus, in stark contrast to the program sanctioned by Grutter, the racial tiebreaker not only fails to “serious[ly] eonsider[ ] all the ways an applicant might contribute to a diverse educational environment,” but is in fact a “de jure [policy] of automatic acceptance or rejection based on a[ ] single ‘soft’ variable.” Grutter, 539 U.S. at 337, 123 S.Ct. 2325. This the Constitution categorically forbids; such an impliably reflexive use of race “cannot be said to be narrowly tailored to any goal, except perhaps outright racial balancing.” Croson, 488 U.S. at 507, 109 S.Ct. 706 (plurality opinion). c Fourth, although numerous alternative admissions structures have been proposed to solve the School District’s oversubscription dilemma without so prominently featuring race in the equation, not all have been (or ever were) seriously considered by the Board. Three such alternatives stand out. i First, the School Board has never seriously considered the use of a citywide high school admissions lottery. Though perhaps not palatable to the electorate — a consideration that cannot justify the use of race in its stead — a randomized lottery would necessarily produce levels of school diversity statistically comparable to (and perhaps even more proportional than) the District’s racial tiebreaker. Yet, when asked about using a lottery to meet the District’s diversity targets, Board member Barbara Schaad-Lamphere actually argued that a lottery would not result in racially proportional representation “because of probabilities, the law of probabilities.” Let us be clear: We are not forcing the School District to adopt a random assignment lottery. But given its evident commitment to achieving diversity, there is no question but that the Board should have earnestly appraised such a program’s costs and benefits. Whatever reasons there may be to reject a lottery, the demonstrably false pretext that “the law of probabilities” would render it ineffectual is not one. The dissent takes us to task for suggesting that the School District must seriously consider using a lottery to achieve its diversity goals when Grutter itself explicitly rejected the plaintiffs’ claim that Michigan’s Law School should have considered a lottery. See post at 1009-1010. We find such criticism unavailing. Grutter rejected the plaintiffs’ demand that the Law School consider a lottery because such a program would necessarily diminish the quality of its admitted students and might not produce adequate educational diversity due to potential under-representation of various (not necessarily racial) kinds of diversity in its limited applicant pool. Yet as the dissent itself notes, the School District’s adoption of a lottery is subject to neither of these potential pitfalls. Post at 1000 (noting that in this case “there is absolutely no competition or consideration of merit.... All high school students must and will be placed in a Seattle public school. The students’ relative merit is irrelevant.”) (emphasis in original). As a result, the District’s unconstrained applicant pool is not subject to a possible demographic skew, and there is absolutely no possibility that a lottery would diminish the quality of admitted students. Thus, neither of Grutter’s grounds for rejecting consideration of a lottery is present here. ii Second, the School District could have considered adopting a diversity-oriented policy that does not rely exclusively on race, but which instead accounts for the wider array of characteristics that comprise the kind of true diversity lauded by Justice Powell in Bakke and by the Court in Grutter and Gratz. In this respect, we observe that — for purposes of its internal school funding formula — the School District already collects a much wider array of data on students and families than merely their racial and ethnic identities. Among that data is information on whether a child lives at home or in “an agency”; if she lives at home, with whom; whether the child’s home and most proficient languages are English or some other language; and the child’s eligibility for free or reduced price lunch. Yet, the District considers none of those factors in admissions, and although individual Board members have occasionally suggested using one or more of those factors as an alternative tiebreaker, the Board has declined even to study how such an alternative would impact school diversity. The dissent once again strays in its criticism of this suggestion. It first suggests that a programmatic focus on “true diversity” is no alternative at all “because it is not directed toward achieving the District’s interest in a racially integrated learning environment.” Post at 1008. But this claim is fundamentally mistaken. A programmatic focus on true diversity— within which race is one of many factors considered by the School District — subsumes the District’s interest in achieving racial diversity: It does not supplant it. Indeed, such a focus may not only help the District achieve the racial diversity it desires, see infra at 1001 n. 26, but might actually serve the District’s socialization interests to a far greater degree than its presently narrow focus on race alone. For, if the District’s fundamental interest is, as the dissent characterizes it, “to prepare children to be good citizens — to socialize children and to inculcate civic values,” see post at 992, and to achieve “a more democratic and inclusive experience for all citizens,” id. at 991-92 n. 9 (quoting one of the District’s expert witnesses), then accounting for factors other than race — like socioeconomic status — would bolster the District’s “democratic” mission by fostering, for instance, cross-class (and not just cross-racial) interaction. See Richard D. Kahlenberg, All Together Now: Creating Middle-Class Schools Through Public School Choice (2001) (documenting the civic and educational benefits of socioeconomically integrated schooling). The dissent also errs in suggesting that “even though there has been no formal study of [this] proposal,” the deposition testimony of a few Board members is sufficient to demonstrate “legitimate reasons why the majority of the Board rejected the use of poverty measures.... ” Post at 1008. We disagree. The Board members’ blithe dismissal of a sincerely presented proposal simply cannot satisfy the constitutional requirement that the government earnestly appraise race-minimal alternatives prior to adopting race-conscious policies. Matters not formally evaluated cannot be “rejected” in a constitutionally-relevant sense: Such appraisal— whether with regard to the need for race-based action, or to the shape such action is to take — must be conducted “on the record.” See, e.g., Croson, 488 U.S. at 498-511, 109 S.Ct. 706 (chronicling Richmond’s failure adequately to document the basis for its use and design of a racial quota and stressing the constitutional demand that it do so); see also Shaw v. Hunt, 517 U.S. 899, 909-10, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996); Fullilove, 448 U.S. at 533-35, 100 S.Ct. 2758 (Stevens, J., dissenting); Rothe Dev. Corp. v. United States Dep’t of Def., 262 F.3d 1306, 1322-28 (Fed.Cir.2001); Associated Gen. Contractors of Ohio, Inc. v. Drabik, 214 F.3d 730, 735-37 (6th Cir.2000) (Boggs, J.); WH Scott Constr. Co. v. City of Jackson, 199 F.3d 206, 217-19 (5th Cir.1999) (King, C.J.); H.K. Porter Co. v. Metro. Dade County, 975 F.2d 762 (11th Cir.1992). iii Third (and at least for the moment, finally), acting in response to Parents’s filing of this lawsuit, the Seattle Urban League convened a working growp which included, among others, a representative from the NAACP, one of the Parents, a former member of the School Board, a retired high school principal, the then-current President of the Seattle Council Parent Teacher Student Association (PTSA), and a former PTSA President. In September 2000, they developed — and then formally proposed to the School Board — a comprehensive plan that would seek to enhance the quality of education in the City’s schools by focusing on educational organization, teacher quality, parent-teacher interaction, raising curricular standards, substantially broadening the availability of specialized and magnet programs (which could attract a broader cross-section of students to undersubscribed schools), and supporting extra-curricular development. At the same time, their plan proposed decreasing the School District’s reliance on race in the admissions process by adding a new, primary tiebreaker based on pairing neighborhoods with particular schools and structuring the scope and size of the component residential areas such that no single region would contain enough students to fill its linked high school to capacity. Under the plan, preferences initially would be given to students choosing a school in their paired region, and the existing racial tiebreaker would be dropped from second to third in the process of resolving any remaining oversubscription (and any residual racial concentration not already solved by improving the attractiveness of previously racially concentrated schools). Finally, the Urban League working group proposed that the School District add an eleventh public high school, and that it strenuously market to the public the existing (and proposed additional) specialty programs throughout the City’s other high schools. We cannot know whether its proposed reforms would have been successful in achieving the working group’s ambitious goals, but there is no doubt that the Urban League presented the Board with an especially thoughtful proposal for addressing the dilemmas plaguing contemporary urban education while simultaneously striving to attain educational diversity without unduly relying on the use of crude racial preferences. Yet, this proposal was never formally discussed at a Board meeting. Indeed, some members of the Board even refused to read it. Consider the following remarkable deposition testimony by Board member Michael Preston: Q: Are you familiar with the plan proposed by the ad hoc work group of the Urban League? A: Somewhat. Q: Did you ever consider that plan as a viable alternative to the current assignment plan? A: No. Q: Why not? A: I thought they hadn’t done their homework. And yeah, they seemed too liberal and unbusinesslike. But it didn’t recognize the legitimate concerns that the people of Ballard and Magnolia have about the school. Q: What in particular do you believe are the shortcomings of that Urban League plan that caused you not to consider it to be a viable alternative? A: That it came from the Urban League. Even though [Urban League President and CEO] James Kelly is a good friend of mine, the Urban League has not been a bastion of enlightened thought, in my view, historically. Q: Did you read the proposal? A: No. I heard it characterized and summarized. Q: By whom? A: By the superintendent. I have a copy of it. I chose not to read it. I’d rather play with my bass lunker fishing game. Q: Than consider the Urban League’s proposal? A: Well. Q: That might give some offense to the people who spent a good deal of time working that proposal up. . A: Okay. Q: We don’t need to show them a copy of the deposition transcript. A: I’m sure it will eventually fall into their hands. Q: Are you familiar with the broad outlines of how that proposal was structured? A: Yeah. Q: What’s your understanding of that? Not necessarily the minutia, but what’s your understanding of the general way that the Urban League’s proposal would have worked? A: I don’t understand the relevance of the Urban League’s proposal, because it wasn’t considered, it wasn’t used. I don’t understand what difference it makes. Q: Well, I’m just — in all honesty, one of the issues in the case, as I see it, is what alternatives were available to the school board. A: Well, that wasn’t an alternative. Q: Why is that? A: Well, the Urban League is not the school board, it’s not the administration, it’s not the superintendent.... Without belaboring the point, this is not exactly the stuff from which narrow tailoring is made. While it may be the case that educational institutions need not exhaust every conceivable alternative to the use of racial classifications to satisfy strict scrutiny, narrow tailoring at least demands that schools earnestly consider using race-neutral and race-limited alternatives in order to provide for the kind of diversity that, properly constituted, can further compelling educational and social interests. Grutter, 539 U.S. at 339, 123 S.Ct. 2325. Given the tragic history of race in our country, the Constitution demands no less — our education policymakers’ enthusiasm for handheld electronically simulated “bass lunker fishing game[s]” notwithstanding. d Fifth, the School District’s racial tiebreaker is not designed to minimize its adverse impact on third parties; the extent to which it uses race is not calibrated to the benefits sought. Over time, “the band,” see supra n. 6, has ranged from as much as +/25 percent to as little as +/10 percent, and it currently sits at +/15 percent. And while such variances conceivably could be interpreted to suggest that the School District is carefully trying to optimize its realization of diversity’s benefits, the record belies such an interpretation. In October 2000, School Superintendent Joseph Olchefske formally recommended that the band be expanded from +/10 percent to +/20 percent because “[ajfter review and 2 years experience, there was not strong evidence that utilizing a +/10 [percent] band provided a materially better educational experience than would a band of +/20 [percent]. Accordingly, in order to fulfill our narrow tailoring obligation, staff is recommending a +/20 [percent] band.” Yet, even after its chief educator and his staff twice had reported that twice as much of an adjustment would have no adverse impact on the diversity payoff, the Board adjusted the band by just 5 percentage points. This is not the measure of tailored proportionality. Instead, it represe