Thursday, October 18, 2001
Page No.: 5
Ninth Circuit Judges Urged to Reinstate Pasadena School Assignment Plan
By a MetNews Staff Writer
A district judge’s order striking down the way the Pasadena Unified School District assigns students to three of its elementary schools is both substantively and procedurally flawed, an attorney for the district argued yesterday before a Ninth U.S. Circuit Court of Appeals panel.
PUSD’s lottery plan for assigning students to Don Benito Elementary School, Marshall Fundamental Secondary School and Norma Coombs Alternative School is race-and-gender neutral, Patricia Brannan of Washington, D.C.’s Hogan & Hartson told the judges.
PUSD allows parents living anywhere in the district to enroll their children in the three schools. Because the number of potential enrollees sometimes exceeds available space, however, not all parents who wish to send their children can do so.
The district’s policy provides that priority be given to siblings of current students. After that, each potential student is given an equal chance in a lottery, except that if the applicant pool is so skewed as to risk the creation of a student body that is not substantially diverse as to race, gender, and other characteristics, the lottery may be weighted.
U.S. District Judge Dickran M. Tevrizian ruled that the policy is unconstitutional because it allows the use of race, ethnicity and gender as factors.
Brannan urged the court to overturn that decision, noting that the U.S. Supreme Court has not condemned the use of those factors in all circumstances. Besides, she said, the plaintiffs lacked standing to bring the suit because none of the objected-to factors were used in the 1999-2000 lottery that they challenged.
None of the eight plaintiffs, she said, offered any showing of “actual or imminent” constitutional injury resulting from the policy, she said.
Senior Judge Dorothy W. Nelson questioned whether, in view of the district’s vigorous defense of the policy, it might not be in her client’s interests to have the case resolved on the merits.
Brannan responded that there would be a number of opportunities to litigate the substance in the future.
The plaintiffs’ attorney, Kevin T. Snider of the conservative United States Justice Foundation, said the case should be decided on the merits because the district had conceded it may use a race-or-gender-weighted lottery in the future. The burden was on the district to show that “the issue is dead,” and they didn’t do that, Snider said.
Turning to the merits, Snider drew a skeptical response when he argued that the district’s reliance on the Supreme Court’s Bakke decision, which allows some consideration of race in school admissions, applies only to higher education.
Students in grades K-12, he argued, are engaged in “no scholarly research” and thus don’t come under Bakke’s language suggesting that diversity in selecting those responsible for such research may serve a legitimate purpose.
But Senior Judge Betty B. Fletcher, citing other language from Bakke, said students in those grades “are engaged in learning about life.”
Snyder responded by arguing that the burden was on the district to show a need for diversity, and that they hadn’t accomplished that.
The case is Scott v. Pasadena Unified School District, 00-55532.
Copyright 2001, Metropolitan News Company