Friday, October 21, 2005 - Page updated at 12:00 AM

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Racial tiebreaker will stand

Seattle Times staff reporter

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The tiebreaker case

July 2000: Parents Involved in Community Schools (PICS) sues Seattle Public Schools over its use of a racial tiebreaker to assign some students to high schools.

April 2001: U.S. District Judge Barbara Rothstein upholds the tiebreaker, saying it counteracts the city's segregated neighborhoods and does not violate the preferential-treatment ban of voter-approved Initiative 200.

April 2002: A 9th U.S. Circuit Court of Appeals panel rules 3-0 that the tiebreaker violates state I-200. Ballard High School principal David Engle resigns to protest the federal court's decision, saying it will resegregate his school.

June 2002: The federal court withdraws its earlier ruling and says the state Supreme Court should answer the I-200 question. Although the court lifts its injunction against the tiebreaker, the school district decides to suspend its use until the legal questions are resolved.

June 2003: The State Supreme Court, in an 8-1 ruling, says assigning students on the basis of race does not violate I-200's prohibition on racial preference, because it affects students of all races in a similar manner. The constitutional question goes back to the federal appeals court.

July 2004: A 9th Circuit panel again rejects the tiebreaker, this time in a 2-1 decision, saying it violates constitutional guarantees of equal protection.

June 2005: The full 11-judge panel of the 9th Circuit hears the case, after the school district appealed the 2004 ruling.

Oct. 20, 2005: 9th Circuit upholds Seattle Public Schools' tiebreaker; plaintiffs pledge appeal to the U.S. Supreme Court.

The 9th U.S. Circuit Court of Appeals yesterday upheld Seattle Public Schools' use of race as a tiebreaker in assigning students to popular high schools, and the plaintiffs vowed to appeal to the U.S. Supreme Court.

The ruling comes on the heels of decisions by federal appellate judges in the 1st and 6th Circuits upholding local school authorities' use of race as a factor in student-assignment plans in Massachusetts and Kentucky. Plaintiffs in all three cases sued on the basis that the school districts' plans violated their individual rights to equal protection under the 14th Amendment of the U.S. Constitution.

Seattle suspended its use of the racial tiebreaker after the 2001-02 year because of the litigation.

Here's how the racial tiebreaker worked: When a high school received more applicants than it had seats for, a series of tiebreakers gave assignment preference to students.

Those with a sibling in the school got first preference. After that, if the racial balance of the school's student body varied by 15 percent or more from the white-nonwhite districtwide ratio — 40 percent white to 60 percent minority — students were given preference if they brought the student body closer to that ratio.

The next tiebreaker was the school's distance from the student's home, which due to housing patterns tends to lead to less diversity in schools.

With the tiebreaker, for instance, the percentage of minority students at Ballard High School was 54 percent; without the tiebreaker, their representation would have dropped to 33 percent.

School districts face a "strict scrutiny" standard laid down by the U.S. Supreme Court in prior equal-protection cases: They must show that the government has a "compelling interest" in using racial categories and that these actions are "narrowly tailored" to not favor one race over another.

Six of the 9th Circuit's 11 judges hearing the Seattle case ruled that the district's plan met that standard.

Moreover, the majority noted that because attending K-12 schools is compulsory for school-age children, school districts are entitled to assign students to any of their schools; students are not entitled to be assigned to any specific school.

The four judges who wrote the dissenting opinion challenged the idea that racial diversity in schools was a compelling state interest, saying that the research was inconclusive on whether it benefited students academically.

The harm of inciting racial hostility outweighed any vague benefit of diversity, Judge Carlos Bea wrote.

"The way to end racial discrimination is to stop discriminating by race," he wrote.

Seattle Public Schools spokeswoman Patti Spencer said the district is pleased the court upheld the School Board's right to address racial diversity in schools.

"That's an important value to us, especially in a city that's segregated by housing patterns," she said.

Parents Involved in Community Schools (PICS), the lead plaintiff in the Seattle case, said it was disappointed and hoped the Supreme Court would hear the case.

Kathleen Brose, president of PICS, said she cares about diversity, but she cares more about children being able to attend their neighborhood school.

Her elder daughter, Elisabeth, was separated from her classmates at Catharine Blaine in Magnolia when they moved into ninth grade.

Although Elisabeth ranked Ballard High School as her first choice, she was assigned to Franklin High School in the city's south end under the district's racial tiebreaker, Brose said.

Both sides in the Seattle case — and the two other school district cases — cite the U.S. Supreme Court's 2003 rulings in two cases brought against the University of Michigan's affirmative-action programs. But the court has never decided a case involving the use of race in a district plan intended to promote racially diverse secondary schools.

In an era when Congress has asserted more authority over local K-12 education, the school-district cases have become a lightning rod for civil-rights activists and libertarians alike.

Both the American Civil Liberties Union and the Sacramento-based Pacific Legal Foundation, a law center, filed briefs in support and opposition, respectively, of the Seattle district's plan.

With the costs of Seattle's choice plan growing faster than revenue, the district is considering major changes to it. Advisory committees are expected to make recommendations within the next two months.

Legal experts had mixed opinions on whether the Supreme Court would agree to hear Seattle's case, but one of the appellate judges in the case all but predicted it would.

"When the Supreme Court does review the Seattle plan, or one like it, I hope the justices will give serious thought to bypassing strict — and almost always deadly — scrutiny," wrote Judge Alex Kozinski in a concurring opinion. "Not only does a plan that promotes the mixing of races deserve support rather than suspicion and hostility from the judiciary, but there is much to be said for returning primacy on matters of educational policy to local officials."

Sanjay Bhatt: 206-464-3103 or

Copyright © 2005 The Seattle Times Company


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