SAN FRANCISCO—A federal appeals court yesterday upheld the right of public school districts to use race as a “tiebreaker” in assigning students to particular schools.

An en banc panel of the 9th Circuit Court of Appeals split 7–4 to find constitutional a plan used in Seattle to ensure that the number of whites and minorities in each school roughly approximates the overall student population.

“The district’s compelling interest is to avoid the harms of racial isolation for all students in the Seattle school district,” Judge Raymond Fisher wrote in the majority opinion on behalf of five other judges. “To accomplish that objective the district may look to the racial consequences of honoring the preferred choices of individual students (and their parents).”

In dissent, Judge Carlos Bea said the program was likely to foster racial strife. “Even if well-intentioned, the district’s use of racial classifications in such a stark and compulsory fashion risks perpetuating the same racial divisions which have plagued this country since its founding,” the judge wrote. “Up to now, the American ‘melting pot’ has been made up of people voluntarily coming to this country from different lands, putting aside their differences and embracing our common values. To date it has not meant people who are told whether they are white or non-white, and where to go to school based on their race.”

The student assignment system, last used in Seattle in the 2001–02 school year, allowed most students to attend schools of their choice but redirected some based on a variety of factors such as where siblings attend school, home address, and race. Both whites and nonwhites were sometimes denied their first-choice schools.

All the opinions filed yesterday in the Seattle case drew heavily on a pair of decisions from 2003 in which the Supreme Court upheld an affirmative action admissions policy at the University of Michigan’s law school but struck down a similar racial preference program at the same university’s undergraduate college.

Judge Fisher said the Supreme Court’s recognition of the benefits of diversity in colleges and universities was clearly applicable to primary and secondary schools as well. “We reject the notion that only those students who leave high school and enter the elite world of higher education should garner the benefits that flow from learning in a diverse classroom,” he wrote.

Judge Fisher said there was little risk of stigma because the school-assignment process has no merit-based component. “Accordingly, the dangers that are present in the university context — of substituting racial preference for qualification based competition — are absent here,” the judge wrote.

Judge Bea called the Seattle policy both “blunt” and “offensive” because all “whites” are placed in one category and “non-whites”in another. Parents or students who refuse to state their race are assigned to a category based on “a visual inspection” by school officials, the judge observed.

Judge Alex Kozinski, who backed the Seattle authorities but did not join the majority opinion, said the case defied analysis under the existing precedents. “I hear the thud of square pegs being pounded into round holes,” he wrote. “When it comes to a plan such as this — a plan that gives the American melting pot a healthy stir without benefiting or burdening any particular group — I would leave the decision to those much closer to the affected community.”

The Seattle families who brought the case are expected to ask the Supreme Court to consider the issue.

Yesterday’s ruling from the 9th Circuit is consistent with recent decisions from other appeals courts. In June, the 1st Circuit ruled, by a 3-2 vote, that public schools in Lynn, Mass. could continue to use race as a factor when considering student requests to transfer between schools.The parents and children who object to the practice have asked the Supreme Court to take up the case.

In July, a three-judge panel of the 6th Circuit ruled unanimously that racial guidelines that Louisville, Ky. schools use in assigning students were constitutional.