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Published in Print: August 11, 2004, as Court Rejects Seattle Policy Weighing Race

Court Rejects Seattle Policy Weighing Race

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Legal experts see a federal appeals court decision striking down Seattle’s system for assigning students to high school as a significant development in the debate over what districts can voluntarily do to promote demographic diversity in the post-desegregation era.

The 2-1 ruling late last month by a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, centers on how last year’s decisions by the U.S. Supreme Court on race-conscious university-admissions policies apply in the K-12 context. With court fights over race-based policies in public schools continuing to crop up, the ruling marks the first time a federal appellate court has undertaken a thorough analysis of that question.

See Also...

See the accompanying timeline, "Race in Seattle."

Whether the opinion will stand as binding law in the nine Western states included in the 9th Circuit remains uncertain, however. Seattle school officials said last week that they intended to ask the full 9th Circuit court to rehear the case.

And with federal appeals courts in Boston and Cincinnati considering similar cases, some lawyers were predicting last week that the Supreme Court would eventually be asked to clarify just how the rules laid down in the Michigan affirmative action cases apply to elementary and secondary schools.

"We’re likely to see opinions that go in various directions until, if and when, the U.S. Supreme Court decides this," said William L. Taylor, the chairman of the Citizens’ Commission on Civil Rights, a Washington watchdog group that monitors enforcement of federal civil rights laws. Mr. Taylor, who has represented plaintiffs in school desegregation cases over the years, decried the 9th Circuit panel’s ruling and predicted that the full appeals court would uphold Seattle’s system, which used race as a tiebreaker in some admissions decisions.

Quota System?

But Sharon L. Browne, a lawyer for the Pacific Legal Foundation in Sacramento, Calif., which filed a friend-of-the-court brief backing the plaintiffs who challenged the Seattle district’s policy, called the 9th circuit panel’s ruling "a groundbreaking decision" signaling that "across the nation that these types of programs are being disfavored."

And lawyers challenging a Massachusetts district’s voluntary-integration policy hailed the 9th Circuit ruling as fresh ammunition as they prepared for oral arguments last week before the federal appeals court in Boston.

"We’ll be relying heavily on that as a precedent," said Chester Darling, the president of the Citizens for the Preservation of Constitutional Rights, the Boston group that is representing the plaintiffs in a lawsuit against the Lynn, Mass., schools. ("Mass. City Defends Use of Race in Assigning Students to Schools," June 9, 2004.)

Seattle’s legal battle began four years ago, when a group called Parents Involved in Community Schools challenged the 46,000-student district’s policy of using a racial tiebreaker to help apportion seats in high schools that had more applicants than spaces.

The policy kicked in when schools deviated from the districtwide proportion of white-to-minority students by a set amount. The district suspended use of the tiebreaker in 2002, after an earlier adverse court ruling. (See accompanying timeline, "Race in Seattle.")

In a sharply worded opinion by U.S. Circuit Judge Diarmuid F. O’Scannlain, the 9th Circuit panel majority held on July 27 that Seattle’s policy amounted to "an unadulterated pursuit of racial proportionality." Thus, the majority reasoned, the policy violated the U.S. Constitution’s guarantee of equal protection under the law, as well as the main federal civil rights law prohibiting racial discrimination in programs receiving federal money.

Judge O’Scannlain said that last year’s Supreme Court rulings in two cases involving the University of Michigan had laid out the rules for deciding the Seattle dispute, and that the district’s policy utterly failed to hold up under those criteria.

In Grutter v. Bollinger, the high court held 5-4 that the admissions policy at the university’s law school was constitutional because it considered race only as part of an individual review of all candidates. The court’s companion 6-3 decision in Gratz v. Bollinger invalidated the university’s undergraduate-admissions system, in part because it automatically assigned bonus points to certain minority applicants.

In his 67-page opinion, Judge O’Scannlain said the Michigan decisions established that "racial quotas are strictly prohibited," and he concluded that the Seattle tiebreaker was "virtually indistinguishable from a pure racial quota."

He said the Seattle policy ran afoul of the principle that "an educational institution may not treat an applicant’s race or ethnicity as the touchstone of his or her individual identity, but instead must meaningfully evaluate each applicant’s potential diversity contributions in light of all pertinent factors."

Spirited Dissent

In a 45- page dissent, U.S. Circuit Judge Susan P. Graber sharply disagreed with Judge O’Scannlain’s reading of the Michigan rulings in coming to her conclusion that the Seattle policy passed constitutional muster.

The Supreme Court, she wrote, "has never decided a case involving the consideration of race in a voluntarily imposed school-assignment program that is intended to promote integrated secondary schools."

The Michigan rulings, she said, "provide several guiding principles" in deciding precollegiate lawsuits such as the Seattle case, but "do not control in the secondary-school context."

Instead, she suggested, high school assignment policies should be viewed in light of other Supreme Court cases granting school districts authority to avoid racial segregation.

Last year’s Grutter decision established a principle of major interest to advocates of integration in K-12 schools by making clear that fostering educational diversity—and not just remedying past discrimination—could sometimes justify race-conscious policies. But Judge Graber argued in her dissent that districts have reasons for promoting integration that are subtly different from those of universities.

The law school wanted diverse classrooms to improve its students’ legal training, she wrote, while the Seattle district was focused on the "socialization and citizenship advantages" of demographically mixed schools "so that its graduates will become tolerant, productive, and well-adapted members of this racially diverse society."

Patti Spencer, a spokeswoman for the Seattle schools, said district leaders had decided to fight the appellate ruling even though they are reconsidering their high school assignment policy as part of a broader effort to craft a five-year strategic plan.

"The board’s key commitment is to the goals of equity, access to high-quality schools, and diversity," she said. "This case is really about the power and authority of a locally elected school board to make decisions that it believes further those goals."

Vol. 23, Issue 44, Pages 1,18

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