Metropolitan News-Enterprise


Friday, October 21, 2005


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Ninth Circuit, in En Banc Ruling, Allows Use of Race As ‘Tiebreaker’ in High School Pupil Assignments


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals ruled en banc yesterday that a plan used by the Seattle public schools to assign students to high schools, taking into consideration the race of students competing for limited spots at popular schools, did not violate the Fourteenth Amendment.

In a 7-4 decision citing the 2003 Supreme Court rulings on affirmative action in college admissions, the judges said that the Seattle plan was “narrowly tailored to meet the District’s compelling interests” in promoting diversity and avoiding the isolation of racial minorities.

Judge Raymond C. Fisher wrote the majority opinion, with the concurrence of Chief Judge Mary M. Schroeder and Judges Harry Pregerson, Michael Daly Hawkins, William A. Fletcher, and Johnnie B. Rawlinson. Judge Alex Kozinski concurred separately.  

Fisher said it may be even more important for high schools to use race as an admissions factor than it is for colleges, because not all students go on to college.

“For these students, their public high school educational experience will be their sole opportunity to reap the benefits of a diverse learning environment,” the judge wrote.

Judge Carlos T. Bea dissented. While there is unquestioned value in diversity, he wrote, “[t]he issue here is whether this idea may be imposed by government coercion, rather than societal conviction; whether students and their parents may choose, or whether their government may choose for them.”

Judges Andrew J. Kleinfeld, Richard C. Tallman, and Consuelo M. Callahan joined Bea in dissent.

.A three-judge 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.

When the Washington high court said the plan did not violate the state law, the case came back to the Ninth Circuit for resolution of the case under the Equal Protection Clause. A panel ruled 2-1 in February that it did, but a majority of the judges voted to review that decision en banc.

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 majorityó82 percent for the 2000-2001 school yearóprefer 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. A  spokeswoman said it would be up to the school board to decide whether the district will reinstate the tiebreaker immediately or wait to see if the Supreme Court agrees to hear the case.

When the tiebreaker was in effect, 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 group that challenged the plan, Parents Involved in Community Schools, said it would continue its efforts.

“We are going to petition the U.S. Supreme court to look at this,” PICS president Kathleen Brose, who is white, told The Associated Press. “It’s too important a decision for the city of Seattle. These children need access to their neighborhood schools, and they’re not going to get it if the district uses a racial tiebreaker.”

Brose said the tiebreaker kept her oldest daughter out of the high school closest to their home, and her other top choices as well. As a freshman, she wound up having to commute 30 minutes to another high school.

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 PICS.  PLF previously represented an Orange County citizen who 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 Ninth Circuit majority yesterday agreed with the district that maintaining racially diverse student bodies “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.”

The ruling is the second federal appeallate opinion this year to uphold voluntary desegregation plans by city school districts, cases that are helping define how far districts can go to ensure diversity in their classrooms. In June, a 3-2 ruling by the First Circuit upheld a plan used by the school district of Lynn, Mass.

The case is Parents Involved in Community Schools v. Seattle School District, No. 1, 01-35450.


Copyright 2005, Metropolitan News Company