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Wednesday, July 28, 2004 - Page updated at 12:30 A.M.

Seattle schools' racial tiebreaker ruled improper

By Sanjay Bhatt
Seattle Times staff reporter

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Racial tiebreakers' use was short term, limited
Tiebreakers: key dates
Using race as a tiebreaker to assign students to Seattle public schools violates their constitutional right of equal protection, a federal appeals court ruled yesterday.

In a 2-1 decision, a three-judge panel of the 9th U.S. Circuit Court of Appeals sympathized with the Seattle School District's desire to promote diversity, but struck down its racial tiebreaker in a withering critique.

Citing U.S. Supreme Court rulings last year in two cases against the University of Michigan, the court said admissions policies that use race as a factor must also be flexible, avoid quotas, minimize harm and be employed only after considering race-neutral alternatives.

"The School District's racial tiebreaker fails virtually every one of the narrow tailoring requirements," Judge Diarmuid O'Scannlain wrote for the majority. The judge said the assignment plan's shortcomings "reveal an unadulterated pursuit of racial proportionality that cannot possibly be squared with the demands of the Equal Protection Clause."

Legal experts said they believed it was one of the first court opinions to apply the Michigan rulings to affirmative action in K-12 education and would have ramifications for school districts nationwide.

"It has been four years," said an elated Kathleen Brose, president of Parents Involved in Community Schools (PICS), which filed the lawsuit. "I am anxious to hear what the Seattle district will do. I am hoping they will say 'Enough,' and this will be over," she said.

"We're certainly disappointed," school district spokeswoman Patti Spencer-Watkins said. The district's attorneys are reviewing the 116-page court ruling, which includes a spirited dissenting opinion by Judge Susan Graber.

Whether the district will appeal "will be guided by the wishes of the School Board," Spencer-Watkins said. The district's bill for outside legal counsel in the case is "in the range of $300,000," she said.

If it challenges the ruling, the district could petition for a rehearing before the full appeals court. It also could petition the U.S. Supreme Court, which has never decided a case involving a voluntarily imposed, race-based assignment program intended to promote integration in secondary schools.

The Seattle School District introduced its most recent racial tiebreaker in the 1998-99 school year. It suspended the practice for the 2002-03 school year, saying it would wait until the courts resolved the issue.

Some form of racial tiebreaker — intended to promote integration while preserving school choice — has been used since the 1970s.
 
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U.S. District Judge Barbara Rothstein upheld the racial tiebreaker in 2001; the appellate court overturned her decision the next year. But the 9th Circuit withdrew that ruling, asking the state Supreme Court to decide whether the tiebreaker violated Initiative 200, the voter-approved measure that bans racial discrimination or preferences in public education, government employment and contracting. Last year, the state's high court said it did not, so the federal court again took up the question of its constitutionality.

Under Seattle's student-assignment plan — unique in Washington — the tiebreaker was used for the 2000-01 academic year if a school had more applicants than available seats, and the school's proportion of white and nonwhite students deviated 15 percent or more from the district average.

That year, five of the district's high schools had more applicants than they could accept. About 82 percent of students had selected one of those five popular schools (Ballard, Nathan Hale, Roosevelt, Garfield and Franklin) as their first choice.

In July 2000, a group made up mostly of white parents from Magnolia and Queen Anne sued the district when their children did not get into Ballard High School. They said they were denied admission because the district's racial tiebreaker favored nonwhite students at the predominantly white, North End school.

The court wrote that it understood the district's desire to promote integration. "Diversity brings different viewpoints and experiences to classroom discussions and thereby enhances the educational process," the majority quoted from Seattle's policy.

But after reviewing the district's data, the appeals court said "the tiebreaker produces only the most trivial annual changes in school demography."

For example, Ballard High School in 2000-01 would have been 62.5 percent white and 37.5 percent nonwhite without the racial tiebreaker. With the tiebreaker, Ballard was 56.4 percent white and 43.6 percent nonwhite.

In 1998, Ballard was 60 percent white and 40 percent nonwhite. This past school year, it was the same.

The court faulted the Seattle district for lumping its minority students together as "nonwhite." In fact, it noted, the district's demographics in 2000-01 demonstrate that each of its schools "enroll a vibrant array of students."

The tiebreaker affected about 300 students a year. Its major effect, the court found, was to give some South End students a chance to attend popular North End schools.

The court's majority cast unusually sharp barbs at the School Board's "blithe dismissal" of what it called "an especially thoughtful" alternative to the racial tiebreaker, offered by the Urban League of Metropolitan Seattle.

The Urban League proposed decreasing the district's reliance on race in admissions and would have added a new, primary tiebreaker based on pairing neighborhoods with particular schools. It would have redrawn school boundaries, so that no single region would contain enough students to fill its linked high school to capacity. The Urban League also proposed adding an 11th high school.

The judges quoted "remarkable deposition testimony" from former board member Michael Preston, who told PICS' attorney he hadn't bothered to read the Urban League's proposal.

"I chose not to read it," Preston testified. "I'd rather play with my bass lunker fishing game."

The previous board should have earnestly examined using race-neutral and race-limited alternatives to create the kind of diversity that enhances education, the court said.

"Given the tragic history of race in our country, the Constitution demands no less — our education policymakers' enthusiasm for handheld electronically simulated 'bass lunker fishing game[s]' notwithstanding," the majority wrote.

The judges criticized the board for failing to use the wider array of data it already collects — for example, a student's family income or primary language — rather than race to determine school assignments.

But in her dissenting opinion, Graber said that using income as a proxy for race would be "insulting to minorities" and also echoed concerns that high-school students would hide their low-income status to avoid social stigma.

The other two judges rejected her logic, saying it's far more insulting to reject applicants solely because of the color of their skin, and that if students of different backgrounds were forming friendships, then they would learn about class and race disparities when exposed to their peers' homes and communities.

While striking down the racial tiebreaker, the majority said the School Board would have had a stronger case had it at least studied what impact a citywide assignment lottery would have on diversity.

"That is a solution that strikes me as one that would be totally unpopular with any parent in the school district, one that does not appear to be fair, and one that does not seem particularly likely to achieve the benefits that the school district wants to achieve," said Seattle attorney Paul Lawrence, who had filed a brief in support of the district for the American Civil Liberties Union of Washington.

Sharon Browne, a Sacramento attorney with the Pacific Legal Foundation, which filed a brief in support of PICS, praised the court's decision, saying it was another step forward toward race-blind policies.

"We need to get one of these decisions in front of the United States Supreme Court," she said.

Lawrence found some positive news in the ruling. "The court is recognizing it is constitutional for school districts like Seattle School District to try to achieve the benefits that flow from educational diversity by adopting assignment systems."

The 9th Circuit's rejection of Seattle's race-based admissions comes as federal courts have endorsed other school districts' efforts to promote integration.

The 1st U.S. Circuit Court of Appeals recently upheld Boston Public Schools' assignment plan. Boston sets aside half of the seats in a school for students within walking distance and the other half for students who choose to be bused there. A citywide lottery decides which students get in.

And a federal judge ruled that the Jefferson County, Ky., school district can maintain its race-based assignment plan to encourage integration. That district requires that at least 15 percent and no more than 50 percent of a school's students be black.

Seattle's current School Board has ranked access to good schools, predictability, keeping families together, being close to home and equity among its core values as it revisits the district's student-

assignment plan. Although school choice is a high priority for board president Mary Bass, the rest of the board is considering whether the millions spent on busing under the district's open-choice plan would be better spent in the classroom.

This spring, Queen Anne and Magnolia parents protested again when their children were assigned to Cleveland High School in the city's South End.

Although her oldest daughter has since graduated, PICS' Brose has a daughter entering the eighth grade this fall who would have been affected if the court had upheld the racial tiebreaker.

"We like diversity. We are not afraid of it," Brose said. "But we do value neighborhood schools. ... I am going to keep fighting this until the district realizes that discrimination is wrong."

Seattle Times staff reporter Tan Vinh contributed to this report. Sanjay Bhatt: 206-464-3103 or sbhatt@seattletimes.com

Copyright © 2004 The Seattle Times Company

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