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A divided three-judge panel of the 9th U.S. Circuit Court of Appeals last week struck down a Seattle-area school program that reassigned minority students ahead of other youths to combat the effects of a segregated housing market. The 113-page decision, which prevents the district from using so-called “racial tiebreakers,” could have a widespread effect on schools and other institutions that pursue diversity programs. “The issue here is not whether students have a right to attend the school of their choice, or one of significantly above-average quality. It is whether, having made available a choice-based system of public education, the district may use race to circumscribe parental choices in the way it has,” Judge Diarmuid O’Scannlain wrote, concluding that it cannot. “Across-the-board wrongs do not, as the dissent reasons, make a right.” In the decision, the court dissects the U.S. Supreme Court affirmative action decisions in Gratz v. Bollinger, 539 U.S. 244, and Grutter v. Bollinger, 539 U.S. 306. In those cases, the high court upheld the use of affirmative action programs, so long as they are narrowly tailored to achieve a compelling governmental interest. Though a defeat, the ruling had a silver lining for affirmative action proponents, as the court held that Gratz and Grutter apply to 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,” O’Scannlain wrote.

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