concurring.
The Lynn plan at issue in this case is fundamentally different from almost anything that the Supreme Court has previously addressed. It is not, like old-fashioned racial discrimination laws, aimed at oppressing blacks, e.g., Brown v. Bd. of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880); nor, like modern affirmative action, does it seek to give one racial group an edge over another (either to remedy past discrimination or for other purposes). E.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). By contrast to Johnson v. California, — U.S. -, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005), the plan does not segregate persons by race. See also Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). Nor does it involve racial quotas. E.g., Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 273-79, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978).
Instead, the plan uses race as an express criterion to permit transfers where they are consistent with maintaining schools with a racial mix of students, and *28to limit transfers where they would increase racial imbalance within the school system beyond certain predetermined limits. The plan does not purport to favor one race over another, nor have the parties claimed that it does so. Every child can as a matter of right attend his or her local school. And the parties have stipulated that Lynn’s schools are educationally equal in quality; thus a child who is unable to transfer to a non-local school of choice is not relegated to an inferior education.
Whether such a plan is desirable as a matter of social policy is open to reasonable debate. So, too, are claims as to the extent of educational or civic benefits derived from the plan. But, in the absence of a constitutional violation, these choices are customarily left to legislatures, city councils, school boards and voters. Cf. Harris v. McRae, 448 U.S. 297, 326, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980). Indeed, one of the advantages of our federal regime is that different communities try different solutions to common problems and gravitate toward those that prove most successful or seem to them best to suit their individual needs. See United States v. Lopez, 514 U.S. 549, 581, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (Kennedy, J., concurring).
Some may be offended by any express use of race as a touchstone for transfers, believing that a race-based criterion is the wrong lesson for school boards to teach and students to absorb. But ours is a society with a heritage of racial problems growing out of generations of slavery and post-slavery segregation, and it may be unrealistic to suppose that everything will work out well if only race is ignored in every context. In any event, the Supreme Court has upheld the use of race-conscious solutions in certain settings.20 The question is where and how one draws the line.
If we knew how the Supreme Court would decide the case before us, it would be right to adopt its answer in advance— whatever this court’s members might prefer. Cf. Wessmann v. Gittens, 160 F.3d 790, 809-10 (1st Cir.1998) (Boudin, J., concurring). But where the outcome in the Supreme Court is uncertain and past pronouncements were made in contexts different than the one now presented, the appellate court must exercise its own judgment on whether the local plan is constitutionally forbidden. There is very little to be said for mechanically extrapolating from general phrases visibly addressed to different issues. United States v. Jerrold Elecs. Corp., 187 F.Supp. 545, 555-56 (E.D.Pa.1960), aff'd, 365 U.S. 567, 81 S.Ct. 755, 5 L.Ed.2d 806 (1961) (per curiam).
Treated as an open question, this is a difficult case. The Supreme Court’s language disfavors racial tests and, without flatly forbidding them, has restricted their use with particular rubrics (compelling interest, narrow tailoring). See, e.g., Adarand, 515 U.S. at 227, 115 S.Ct. 2097. But such rubrics depend on degree and context; there is no yardstick that crisply determines when an interest is compelling enough or how narrow is sufficiently so. The way the Lynn plan uses race is certainly more benign than laws that favor or disfavor one race, segregate by race, or create quotas for or against a racial group.
The goal of the Lynn plan — to achieve the educational and civic benefits of exposing youngsters to those of different races — is not unlawful; the attack is upon the means. Yet given the goal, it is not *29easy to see how it can be achieved in a community like Lynn without using race as a touchstone. The problem is that in Lynn, as in many other cities, minorities and whites often live in different neighborhoods. Lynn’s aim is to preserve local schools as an option without having the housing pattern of de facto segregation projected into the school system. The choice is between openly using race as a criterion or concealing it through some clumsier proxy device (e.g., transfer restrictions based upon family income).
If the plan were patently offensive to core equal protection principles, this would be an easy case. But the Lynn plan is far from the original evils at which the Fourteenth Amendment was addressed. The Fourteenth Amendment sought to forbid the oppression of one race by another. We are here working from doctrines concerning the use of race-based criteria that are mainly the product of twentieth-century jurisprudence. This is not a case in which, against the background of core principles, all doubts should be resolved against constitutionality.
Rather, we are faced with a local experiment, pursuing plausible goals by novel means that are not squarely condemned by past Supreme Court precedent. The problems that the Lynn plan addresses are real, and time is more likely than court hearings to tell us whether the solution is a good one; indeed, indications so far are that Lynn’s efforts have met with success. To bring that success to a halt in this court seems neither advisable nor necessary. The Supreme Court has not passed upon a plan anything like the one before us. That Court is free to extend its precedents to the present context, but that is its role— not ours. Cf. State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997).
. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003); Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980); Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750; cf. Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971).