Tuesday, June 18, 2002
Ninth Circuit Vacates Ruling in Seattle School Busing Case, Asks State High Court for Help
By a MetNews Staff Writer
The Ninth U.S. Circuit Courts of Appeals panel that struck down a feature of the Seattle public schools’ high school pupil assignment plan as racially biased vacated that ruling yesterday and asked the state Supreme Court to decide whether the plan violates a state ballot initiative.
The panel set aside its April 16 ruling, along with an injunction that would have barred the district from using the plan’s “racial tiebreaker” in determining assignments for the 2002-2003 school year.
The judges—Diarmuid F. O’Scannlain and Susan P. Graber of the Ninth Circuit and Fifth Circuit Senior Judge Thomas M. Reavley, sitting by designation—had held that the use of race as a factor in school assignments violates I-200, an initiative similar to California’s Proposition 209.
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 recently won a Fourth District Court of Appeal ruling that a similar plan in the Huntington Beach Union High School District violates the California initiative.
The plan 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 is given to those who wish to attend a school in which members of their racial group are significantly underrepresented in comparison to their percentage of the district as a whole.
This prevents some whites from attending three high schools in which white enrollment is limited to 55 percent. Because the third tiebreaker is distance, some whites must attend schools located far from home.
The racial tiebreaker, the panel held in the April ruling, violates I-200’s command that no public entity “discriminate against, or grant preferential treatment to, any individual or group on the basis of race…in the operation of public education.” O’Scannlain and Reavley suggested that it also violates the Equal Protection Clause, but decided the case solely on the basis of state law.
Yesterday, however, O’Scannlain, writing for the panel, said the interpretation of I-200 should be left to the Washington high court, even though lawyers for both sides had opposed certification. The Ninth Circuit, he noted, was criticized in a U.S. Supreme Court decision for striking down Arizona’s “Official English” initiative without giving the state Supreme Court a chance to interpret it in a manner that would have avoided the constitutional issue.
The panel, O’Scannlain explained yesterday, had hoped to resolve the issue without certification so that its ruling would govern assignments for the school year beginning this fall. Since requests by the school district for rehearing and rehearing en banc have made it impossible for the panel to make a “definitive” ruling in time, he said, “our sole reason for not certifying this question to the Washington Supreme Court has dissolved.”
The case is Parents Involved in Community Schools v. Seattle School District, No. 1, 01-35450.
Copyright 2002, Metropolitan News Company