dissenting:
Today the Court leaves in place the Monroe County Urban-Suburban Interdis-trict Transfer Program (“the Program”). Designed to “reduce racial isolation” and achieve other goals as well, there is absolutely no evidence that the Program has succeeded in accomplishing its purposes after a full thirty-five years of existence. Aside from being a total failure (as so clearly demonstrated in the concurring opinion) and more to the point here, the Program has been administered, at least in the case of Jessica Haak, strictly on the basis of racial classification.
The Supreme Court teaches that race-conscious remedies are subject to strict scrutiny, which requires among other things that they be narrowly tailored to achieve a compelling government interest. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). Otherwise, the racial classification is violative of the Equal Protection Clause of the Fourteenth Amendment (“No State shall ... deny to any person within its jurisdiction the equal protection of the laws.”) and, as well, § 3201 subd. 1 of the New York Education Law (“No person shall be refused admission into or be excluded from any public school in the state of New York on account of race, creed, color or national origin.”). The Program challenged here was not “narrowly tailored” as applied to Jessica Haak. In point of fact, it was not “tailored” at all. Because Jessica’s transfer to the West Irondequoit Central School District from the Rochester City School District was revoked solely because of her race and purportedly in accordance with the Program, her constitutional rights clearly were violated.
The Program has its basis in subdivision 36.a. of section 3602 of the New York Education Law, which provides as follows:
A school district which accepts pupils from another school district in accordance with a voluntary interdistrict urban-suburban transfer program designed to reduce racial isolation which is approved by the commissioner in accordance with regulations adopted by him for such purpose shall be eligible for aid pursuant to this subdivision.
N.Y. Educ. Law § 3602 36.a. (McKinney 1995). Pursuant to this statute, the New York Commissioner of Education has adopted regulations governing the provision of state aid for urban-suburban transfer programs. The regulations define ra*755cial isolation to “meant ] that a school or school district enrollment consists of a predominant number or percentage of students of a particular racial/ethnic group.” 8 N.Y. Comp.Codes R. & Regs. tit. 8, § 175.24(a)(2) (1999). The regulations define a minority pupil as “a pupil who is of Black or Hispanic origin or is a member of another racial minority group that historically has been the subject of discrimination.” Id. § 175.24(a)(1).
According to the regulations, an urban school district and a suburban school district desiring to participate must submit a joint application including “racial/ethnic enrollment data.” Id. § 175.24(b)(2). To be approved for state aid, the districts must demonstrate that their “program will reduce racial isolation by transferring minority pupils, nonminority pupils or both on a voluntary basis between participating urban and suburban districts.” Id. § 175.24(c)(1). The regulations specify that pupils are not to be transferred solely to improve upon the receiving district’s nonacademic pursuits such as athletics. See id. § 175.24(c)(3)(i). Nor are transfer pupils to be selected solely because of handicapping conditions, irregular attendance, low academic performance or disciplinary problems. See id. § 175.24(c)(3)(ii). Annual reports to the Commissioner regarding the operation of the programs are required. See id. § 175.24(d).
Although the statute and the regulations governing interdistrict transfer programs speak only of a purpose to reduce racial isolation, the Mission Statement adopted for the Monroe County Program lists the following goals: .“Reducing Minority Group Isolation; Encouraging Intercultural Learning; Promoting Academic Excellence; Fostering Responsible Civic Leadership.” Presumably in furtherance of these goals, and pursuant to the Program, Jessica was accepted as a transfer student in the West Irondequoit Central School District (a suburban district program participant) from the Rochester City School District (an urban district program participant). In a joint application to the Commissioner of Education, the participants in the Monroe County Program described the Program as. “a voluntary plan which is designed to bring together students from the various social, economic, ethnic, cultural, and racial backgrounds.”
Jessica’s application to participate in the Program was acknowledged in a letter to Jessica’s mother from the Program Director dated August 20, 1996. The letter included the following paragraph:
The six participating suburban districts are continuing to accept a few students at various grade levels each year, dependent on available space. Acceptance of students is also based on the indication in the student’s current school records that he/she is performing at an average level, based on test scores, teachers’ comments, regular attendance with minimal tardiness.
Thereafter, by letter dated September 26, 1997, the Program Director advised Jessica’s mother that Jessica could not be placed that year because “we have too many applicants for too few spaces in the receiving suburban school districts.” The following year, by letter to Jessica’s mother dated July 8, 1998, the “possibility of placement” for that year was noted. What happened thereafter is crystal clear: Jessica was accepted into the Program, the acceptance was noted in writing even after she was seen by an Assistant Principal in the Irondequoit School District, and then, in the words of my colleagues “her acceptance was revoked after another administrator became concerned that [Jessica] was not a minority pupil when she saw [Jessica] in person and verified her race as Caucasian/White in the Rochester District records.” See supra at [page 743].
Any analysis of the validity of the Program must begin with a proposition that is by now basic in American Jurisprudence: “[R]acial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon extraordinary *756justification.” Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979). Such justification is hard to come by, because “all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a revievdng court under strict scrutiny.” Adarand, 515 U.S. at 227, 115 S.Ct. 2097. To pass strict scrutiny, the Program here must consist of “narrowly tailored measures that further compelling governmental interests.” Id. The Program does not pass constitutional muster as applied to Jessica Haak.
If we were writing on a clean slate, I would endorse the viewpoint that remedying past discrimination is the only compelling interest that justifies considerations of race alone. Cf. Hopwood v. Texas, 78 F.3d 932, 944-45 (5th Cir.1996), reh’g en banc denied 84 F.3d 720 (1996) (not permitting the use of race, even as one of many factors, without a showing of past discrimination). I recognize that there is authority going the other way and that the Seventh Circuit properly has observed that the question is “unsettled.” See McNamara v. City of Chicago, 138 F.3d 1219, 1222 (7th Cir.1998). Although I favor the widely-cited concurring opinion of Justice Powell in Regents of University of California v. Bakke, 438 U.S. 265, 313, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), which identifies race to be one of several factors in achieving a diverse student body as a compelling state interest, the Supreme Court never has adopted that position. As my colleagues note, however, we already have found a compelling interest in a program with purposes sufficiently similar to the one under examination here to settle the question in this Circuit. See Parent Ass’n of Andrew Jackson High Sch. v. Ambach, 738 F.2d 574, 577 (2d Cir.1984); 598 F.2d 705 (2d Cir.1979).
In the Andrew Jackson cases, we considered a program in which minority students in the mostly minority Andrew Jackson High School in the borough of Queens were allowed to attend more racially balanced schools elsewhere in New York City. The challenge to the program came not from white students excluded from participation in the program, but rather from minority students who were denied their ability to transfer. The transfer system allowed Black and Hispanic students residing within the Jackson school zone, subject to certain restrictions, to attend any New York City high school not already overen-rolled. The restrictions included elaborate computations designed to accomplish the program’s purpose. The limitation of transfers was based on a theory that if too many minority students transferred to integrated schools, then the already occurring white flight would accelerate. See 738 F.2d at 576-77.
The program allowed white students in the Jackson zone to attend any high school in which the percentage of white students was lower than the receiving Borough’s white percentage or fifty percent of the school population, whichever was less. We determined that the program should be evaluated under the strict scrutiny standard because it was race-based. We concluded that the “Plan’s aim to promote a more lasting integration is a sufficiently compelling purpose to justify as a matter of law excluding some minority students from schools of their choice under the obviously race-conscious [School District] Rate of Change Plan.” 738 F.2d at 577 (quoting 598 F.2d at 719) (internal quotation omitted). In this Circuit, therefore, whether the interest is in developing a more lasting integration in the face of de facto segregation, in promoting racial diversity, or in reducing racial isolation, each must be considered similarly as a compelling. state interest because all are similar.
I turn now to the second prong of the strict scrutiny analysis' — narrow tailoring. The Supreme Court has enumerated the factors to be considered in assessing the appropriateness of race-conscious remedies: “the necessity for the relief and the efficacy of alternative remedies; the flexibility and duration of the relief, including *757the availability of waiver provisions; the relationship of the numerical goals to the relevant [student population]; and the impact of the relief on the rights of third parties.” United States v. Paradise, 480 U.S. 149, 171, 107 S.Ct. 1053, 94 L.Ed.2d 203 (1987) (plurality).
There was absolutely no effort of any kind to assess any of these factors in establishing the Program. Race alone was the standard for determining Jessica’s eligibility for transfer. This despite the fact that the Program’s goals included the encouragement of intercultural learning, the promotion of academic excellence and the development of responsible civic leadership. There is no showing that any of these other factors was considered in connection with Jessica’s application for transfer. How can it be said that the Program was narrowly tailored? Jessica was told, in effect: “The purpose of the Program is only to reduce racial isolation, and you are disqualified only by reason of race.” Perhaps the other goals of the Program were taken into account in assessing the eligibility of other students for transfer, but they certainly were not applied in Jessica’s case.
I agree with my colleagues that the learned district judge erred by conducting the narrow tailoring analysis with the thought in mind that the goal of the Program was to achieve “true diversity.” While the goal of the Program never was “true diversity,” goals other than the reduction of racial isolation also were stated (but not applied in Jessica’s case). However, even if I were to take my colleagues’ point that the primary goal of the Program was a reduction of racial isolation, I would still conclude that the Program was not narrowly tailored to achieve, that goal.
Applying just some of the Paradise factors shows that those responsible for the Program have made no attempt to tailor the Program in any way. For example, no consideration was given to the length of time the Program has been in existence— thirty-five years — without any apparent success in reducing racial isolation. This is an especially long “try-out,” and even programs designed to deal with de facto segregation must end sometime. There is no showing that any alternate remedies, such as magnet schools, vouchers, open enrollment, or redrawing boundaries, have been explored. The relationship of numerical goals to the total student population has not been examined. The impact of the race-based choices on the rights of third parties is an important Paradise factor that has received no consideration, As to the flexibility of relief factor, it seems to me that those responsible for the Program have applied the most inflexible approach possible.
The majority opinion refers to “the extremely fact-specific analysis required for the narrow tailoring inquiry” in remanding for the “District Court in the first instance to again explore the Program’s administration on a more fully developed factual record?’ See supra at [page 753]. In support of the remand, the majority cites Beal v. Stern, 184 F.3d 117, 128-29 (2d Cir.1999). Beal was an action challenging a city ordinance requiring a permit for conducting rallies on city park property as an impermissible speech restraint. In affirming the denial of a preliminary injunction, we stated: “As to- narrow tailoring, we simply do not have sufficient evidence to determine whether the means chosen by the Parks Department are substantially broader than necessary. Resolution of this issue will depend on amplification of the record as to various matters.... ” Id. at 130.
The Beal case is inapposite. We are not confronted here with a need to “amplify the record” to resolve the narrow tailoring issue. The record is complete in our case. Why for the purpose of the matter before us is it then necessary for the district court to explore once again the administration of the Program? We know that Jessica Haak was excluded from the Program strictly on the basis' of her race, and those who administer the Program do not deny *758this. They say (incorrectly as it appears) that their only goal is to reduce racial isolation and that the only way to do that is to prohibit her transfer under the Program.
When it is as apparent as it is here that the narrow tailoring requirement of the strict scrutiny test is unfulfilled, a preliminary injunction must issue, and I would affirm the entry of such an order in this case. See Eisenberg v. Montgomery County Pub. Schs., 197 F.3d 123 (4th Cir.1999), cert. denied, — U.S. -, 120 S.Ct. 1420, 146 L.Ed.2d 312 (2000). Eisen-berg involved an appeal from a denial of a preliminary injunction that sought to compel a student’s transfer to a magnet program. The school district denied the transfer because the student did not meet “the diversity profile.” Passing on the question of compelling governmental interest, the Fourth Circuit determined that the transfer was improperly denied because it was based solely on race. The court also found that racial balancing is not a narrowly tailored remedy, and that the student was entitled to a preliminary injunction admitting him to the magnet program and a final injunction requiring the school authorities to consider his application without consideration of race. See id. at 133-34. Cf. Tuttle v. Arlington County Sch. Bd., 195 F.3d 698, 706-08 (4th Cir.1999) (applying Paradise factors and finding narrow tailoring lacking in admissions policy designed to promote racial, ethnic and socioeconomic diversity, but vacating permanent injunction to allow school district to present alternate admissions policy).
Finally, I take issue with the following statement relating to the narrow tailoring analysis in the majority opinion: “If reducing racial isolation is — standing alone — a constitutionally permissible goal, as we have held it is under the Andrew Jackson cases, then there is no more effective means of achieving that goal than to base decisions on race.” See supra at [page 752], I address this statement as a means of recapitulating the bases for my dissent. First, I do not agree that reducing racial isolation is by itself a constitutionally permissible goal in the absence of a showing of past discrimination, but I am constrained to accept that it is by virtue of our precedent. Second, I do not agree with my colleagues that reducing racial isolation is the “primary” goal of the Program under analysis; it is one of four equally stated goals, but it is the only one that has been applied in the case of Jessica Haak. Third, I do agree that there is no more effective means of achieving the reduction of racial isolation than to base decisions on race alone. It is the most effective means; in this case, it just is not a constitutional means.