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In Comfort v. Lynn School Committee, the United States Court of Appeals for the First Circuit evaluated a race-conscious student assignment program using the affirmative action strict scrutiny framework of Grutter v. Bollinger. Comfort is part of a trend of applying strict scrutiny to race-conscious integration programs that has gained new momentum following the decision in Grutter. Invited by the Supreme Court's seemingly unequivocal language in Adarand Constructors v. Pena, that "all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny," federal district and appellate courts confronted with the question have generally treated the Equal Protection issues raised by voluntary school integration in the tradition of affirmative action, no matter how they ultimately decide the matter on the merits. While Grutter provided significant guidance on the use of race-conscious admissions policies in higher education, the decision did not shed light on the applicability of these standards to K through 12 student assignment programs. While many courts have recognized that important differences between affirmative action in higher education and employment, and race-conscious student assignment programs exist and must be carefully weighed, the courts have largely treated these as differences in degree, not differences in kind. The courts have also largely ignored that the acceptable approach in affirmative action cases is just not feasible for a local school district.

Rather than conceding that strict scrutiny is the appropriate constitutional standard when dealing with public primary and secondary schools, this Article endeavors to begin the jurisprudential inquiry anew and concludes that voluntary school integration does not emerge out of the historical or legal fabric of affirmative action in higher education or employment, nor does it analytically fit in the mold there created. Accordingly, courts should not import wholesale the standards of the Supreme Court's affirmative action jurisprudence into the K through 12 arena. This Article explores the implications of the judiciary placing increasing responsibility for addressing the legacy of segregation in the hands of local school boards, while simultaneously making it increasingly difficult for school boards to address these inequalities through non-merit based, race-conscious student assignment policies. The Article also examines Brown v. Board of Education and its progeny as the point of departure in determining the applicable standard for K through 12 integration programs and concludes that courts should view voluntary school integration as an extension of the Court's school desegregation jurisprudence rather than the Court's affirmative action jurisprudence.