Metropolitan News-Enterprise


Wednesday, February 2, 2005


Page 3


Court to Rule En Banc on Racial ‘Tiebreaker’ in School Assignments


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals agreed to decide yesterday whether a plan used by the Seattle public schools to assign students to high schools was racially biased and violated the Fourteenth Amendment.

In a brief order signed by Chief Judge Mary M. Schroeder, the court said a majority of its active judges had agreed to hear the case, vacating last July’s ruling by a three-judge panel that struck down the plan for the second time.

The Ninth Circuit panel ruled in 2002 that the use of race as a factor in school assignments violates I-200, a 1998 initiative similar to California’s Proposition 209. But it later vacated that ruling and asked the Washington Supreme Court to rule on whether the plan violated I-200.

The “open choice” plan, which was first adopted in the 1970s, allows students to give a first, second, or third preference as to which of the city’s 10 public high schools they wish to attend. But because the overwhelming majority—82 percent for the 2000-2001 school year—prefer to attend one of five particular schools, certain students are given preference in determining whose wishes will be honored first.

The highest preference is given to those who wish to attend a school in which their siblings are already enrolled. After that, however, preference was given to those wishing to attend a school in which members of their racial group were significantly underrepresented in comparison to their percentage of the district as a whole.

The district modified the plan several years ago by eliminating the racial “tiebreaker” pending the outcome of the litigation.

Prior to its doing so, some whites were prevented from attending three high schools in which white enrollment was limited to 55 percent, while non-white enrollment was limited at one school. Because the third tiebreaker was distance, some students had to attend schools located far from home.

The Pacific Legal Foundation, a Sacramento-based advocacy group that has brought a number of Proposition 209 enforcement proceedings, filed an amicus brief in support of the parents who challenged the Seattle plan. PLF represented an Orange County citizen who two years ago won a Fourth District Court of Appeal ruling that a similar plan in the Huntington Beach Union High School District violated the California initiative.

But the Washington high court said the plan does not violate I-200 “so long as it remains neutral on race and ethnicity and does not promote a less qualified minority applicant over a more qualified applicant,” meaning the Ninth Circuit could not resolve the case without addressing the plaintiffs’ claim that the racial tiebreaker violated the Equal Protection Clause.

It did so in last year’s opinion, concluding that the case is not moot because some of the parents who sued have children who will be entering high school in the coming years, and it is possible that the school board—which had a substantial turnover after the 2003 elections—will revive the racial tiebreaker if permitted to do so.

In supplemental briefing on the equal protection issue, the district argued that the plan was supported by a legitimate “diversity rationale” and cited last year’s U.S. Supreme Court rulings allowing public colleges, within limits, to use race as a factor in determining admissions.

Maintaining racially diverse student bodies, the district argued, “increases the likelihood that students will discuss racial or ethnic issues and be more likely to socialize with people of different races,” trains pupils “to become citizens in a multi-racial/multi-ethnic world,” “brings different viewpoints and experiences to classroom discussions and thereby enhances the educational process,” and “fosters racial and cultural understanding, which is particularly important in a racially and culturally diverse society such as ours.”

But Judge Diarmuid F. O’Scannlain, writing for the court, said the racial tiebreaker violates the standards laid down by the Supreme Court because it denies hundreds of students the opportunity to attend the school of their choice, solely by reason of race, and because the district has not shown that it cannot meet its diversity goals by more narrowly tailored means.

The judge said the district had failed to seriously consider alternatives such as a citywide lottery, an expanded diversity policy that includes characteristics other than race, or “an especially thoughtful proposal” from a Seattle Urban League task force “for addressing the dilemma ... without unduly relying on the use of crude racial preferences.”

The Urban League proposal would have introduced magnet schools and created other inducements to alleviate the gap between oversubscribed and undersubscribed schools.

Fifth Circuit Senior Judge Thomas M. Reavley, sitting on the panel by designation, concurred with O’Scannlain. But Judge Susan Graber, who had concurred in the later-vacated ruling on I-200, dissented with respect to the Equal Protection Clause.

“When understood in context, the Plan is narrowly tailored to serve a compelling governmental interest in ensuring that all students in Seattle’s public high schools receive the educational benefits of an integrated learning environment,” Graber wrote, arguing that the plan meets the tests laid out by the Supreme Court.

“The District’s socialization and citizenship training is no more tangential or external to the educational experience of a secondary school than is academic training to the educational experience offered by a law school,” the dissenting jurist wrote. “The University of Michigan wanted to promote a stimulating academic environment so that its graduates would become accomplished and well-rounded members of the legal profession; the District wants to encourage integrated schools so that its graduates will become tolerant, productive, and well-adapted members of this racially diverse society.”

The case is Parents Involved in Community Schools v. Seattle School District, 01-35450.


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