(with whom
HOWARD, Circuit Judge, joins), dissenting.
While no two cases are exactly alike, the function of the judiciary in passing upon a constitutional challenge is to read the pertinent text of the Constitution, examine the universe of relevant legal precedents, extract guiding principles from that case law, and apply those principles to the facts at hand. This case, like most cases, presents a factual scenario that contains certain idiosyncratic elements. There is neither a Supreme Court decision squarely addressing whether racial diversity alone may constitute a compelling interest sufficient to justify the government’s race-conscious preferences nor one addressing the narrow tailoring of racial classifications in voluntary, non-competitive school transfer plans. The majority accentuates those id-iosyncracies, but chooses to overlook the elephant in the room: the fact that this case arises against a backdrop of Supreme Court jurisprudence, recently revisited in Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003), and Gratz v. Bollinger, 539 U.S. 244, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003), that must guide our decision.
The majority’s eagerness to justify departing from precedent frees it to strike out on its own, fashioning a rule that flies in the teeth of the Supreme Court’s stalwart opposition to the use of inflexible, race-determinative methods in granting or denying benefits to citizens.21 Because that departure is inconsistent with the role that an intermediate appellate court should *30play in the federal system, I respectfully dissent.
To my mind, the precedents are rather clear. The two latest Supreme Court decisions illustrate the point. I begin by briefly rehearsing the facts upon which those decisions turned.
Gratz involved the University of Michigan’s undergraduate admissions program. The University automatically assigned 20 points — one-fifth of the 100 points needed to guarantee admission' — to an applicant from an underrepresented racial or ethnic minority group. Gratz, 539 U.S. at 255, 123 S.Ct. 2411. This 20-point bonus effectively made race/ethnicity determinative for minimally qualified minority applicants. Id. at 272, 123 S.Ct. 2411.
Grutter involved law school admissions. The law school took race into account as one of several variables in an individual’s application. Grutter, 539 U.S. at 340, 123 S.Ct. 2325. The school assigned no mechanical score based on an applicant’s race; instead, it considered race only as one of several possible ways in which an applicant could enrich the diversity of the student body. Id. at 315-16, 123 S.Ct. 2325. Moreover, the school set no quotas for racial or ethnic minorities. Id. at 335-36, 123 S.Ct. 2325.
The Supreme Court struck down the plan used in Gratz while upholding the one used in Grutter. In arriving at these decisions, the Court made it crystal clear that a race-conscious admissions program must use race in “a flexible, non-mechanical way” if it is to be considered narrowly tailored (and, thus, if it is to pass constitutional muster). Id. at 334, 123 S.Ct. 2325. Such a plan cannot institutionalize a quota system or in any way insulate one category of applicants from another solely on account of race. See id.; Gratz, 539 U.S. at 258, 270-72, 123 S.Ct. 2411. Race can, however, be used as a plus factor in the course of individualized consideration of each applicant. Grutter, 539 U.S. at 334, 123 S.Ct. 2325.
The majority, emphasizing that context matters, simply writes this requirement out of the narrow-tailoring analysis. That, to me, requires more than a soupcon of legal legerdemain. While I agree that context matters, the Supreme Court has catalogued a compendium of dangers flowing from the mechanical, inflexible, and exclusive use of race as a determinant. For one thing, such an approach insulates the preferred category of applicants from competition with other applicants. Grutter, 539 U.S. at 334, 123 S.Ct. 2325. For another thing, such an approach feeds the stereotype that students from the preferred group lack academic merit and, thus, raises the specter of stigmatic harm. See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 298, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (opinion of Powell, J.) (stating that “preferential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection”).
The majority argues that these dangers are less ominous in a setting, like this one, that neither skews a competitive process nor substitutes race as a proxy for academic merit. But competitive disadvantage and the substitution of race for academic merit are not the only reasons behind the Supreme Court’s understandable disdain for quotas and other inflexible uses of racial determinants. Regardless of the burden imposed by a racial preference, the simple act of granting benefits based on a quota or other mechanical use of race will breed cross-racial tension. See Richmond v. J.A. Croson Co., 488 U.S. 469, 493, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (plurality op.). Moreover, when government indulges in the automatic and unflinching use of race in the *31bestowal of any benefit, that usage counteracts the ultimate goal of relegating racial distinctions to irrelevance. Id. at 495, 109 S.Ct. 706. As the Court reminded us earlier this year, the mechanical use of racial classifications inflicts stigmatic harm wherever and whenever it occurs — a consequence that is by no means limited to contexts that involve schools, students, or academic merit. See Johnson v. California, — U.S. -, -, 125 S.Ct. 1141, 1147, 160 L.Ed.2d 949 (2005) (explaining in a prison context that “racial classifications threaten to stigmatize individuals by reason of their membership in a racial group” and “perpetuate the notion that race matters most”).
Nothing in either Grutter or Gratz (or in any other case, for that matter) dispels the notion that mechanical, race-based programs work this harm — and, indeed, the Lynn Plan inflicts it upon a number of students seeking to benefit from a program that Lynn knows is appealing without regard to racial reasons. To illustrate, consider that the Plan can succeed only if the opportunity to transfer to a distant school is attractive to parents. It is conceivable that some parents would transfer a child out of a desire to have the child learn in a more integrated environment. But the Lynn Plan actively creates and exploits other methods of benign coercion in search of its goal. For instance, Lynn admits that a major function of its “theme” schools is to entice parents to transfer their children. Another method is selling convenience to parents. School officials are aware that some of schools are located near after-school programs or near high-employment areas. Every student, of every race, in every school zone, has some potential benefit- — -yet the school committee’s policy evaluates whether students may take part in the transfer program based solely on the color of a student’s skin. Only after experiencing a racially based rejection can an affected student plead for relief from the stated policy.
In one sense, then, this plan is even more harmful than the racially inflexible program struck down in Gratz. There, prospective non-minority students could be admitted by the terms of the policy itself and thus those who were rejected could look to something other than race as a reason for their failure.
The majority writes off these concerns, stating that Lynn’s goal is increased racial harmony for the student body as a whole. But the end cannot be allowed to justify the use of unconstitutional means; even laudable goals must be attained in constitutional ways. The Lynn Plan’s inflexible use of race offends this principle.
Moreover, the majority’s attempted justification misses a crucial point. The Fourteenth Amendment protects individuals, not groups. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). There is a harm inflicted on a student when her government denies her transfer for the sole or determinative reason of race- — -an immutable condition that she cannot change. That harm cannot be ignored simply because it serves what others (be they school committee members or my distinguished colleagues) perceive as a greater good. Cf. Grutter, 539 U.S. at 341, 123 S.Ct. 2325 (holding that narrow tailoring requires program to not unduly harm members of any racial group).
If more were needed — and I doubt that it is — the mechanical use of race is not necessary to meet the compelling interests that Lynn asserts here. A flexible, race-conscious transfer program, creating a strong but non-determinative “plus” factor for integrative transfers but permitting other transfers based on the strength of individual requests, would serve to in*32crease diversity and avoid the harm arising from an unflinching use of race. The children rejected for transfer under such a plan would not be rejected solely because of the color of their skin but because the reasons supporting their transfer requests were comparatively insubstantial. That kind of harm is not constitutionally suspect.
Lynn hardly can be heard to complain that such a plan is unworkable. By its own admission, it already allows more than half of the students denied transfers under its race-based policy to have an exemption for non-race-related reasons. These transfers have not undermined the benefits of diversity in the school community. The city persists, however, in subjecting all the students who request transfers to what is in effect a two-tier process — one in which the student is evaluated solely on the basis of color and a second in which a rejected student must convince the school that his or her color should not matter.
Many good things can be said about the Lynn Plan. I do not doubt that it is well-intentioned and that it has helped to promote greater diversity in the public schools. But the overriding fact is that it unnecessarily inflicts racially based wounds on a large and diverse group of its students and, consequently, fails to satisfy the narrow-tailoring requirement set out in the Supreme Court’s equal protection jurisprudence. Because that is so, I must respectfully dissent from what I view to be an erroneous decision.
. While such methods may be justified to remedy the effects of past discrimination, see, e.g., Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), no such justification exists in this case.