Advancing the legal debate over what school districts can do to promote demographic diversity in public schools, a federal appeals panel has struck down for the second time Seattle’s policy of assigning students to high schools based partly on their ethnicity and race.
A three-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit held in a 2-1 decision on July 27 that the school district’s policy amounted to “an unadulterated pursuit of racial proportionality that cannot possibly be squared” with constitutional guarantees of equal protection under the laws.
Accompanied by a spirited dissent, the federal appeals court ruling is among the first to address how last year’s decisions by the U.S. Supreme Court on the use of race in university admissions should be applied in the K-12 context. In Grutter v. Bollinger, the high court upheld the admissions policy at the University of Michigan’s law school, while in Gratz v. Bollinger it invalidated the university’s undergraduate admissions system.
“It’s definitely a significant decision nationally,” said Russell C. Brooks, a lawyer with the Pacific Legal Foundation, a Sacramento, Calif.-based organization that filed a friend-of-the-court brief in the case opposing the district’s policy. “It sets tremendous precedent for other circuit courts of appeal.”
The legal battle in Seattle began four years ago, when a local 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 space. In 1998, the district had begun allowing students citywide to choose among any of its 10 comprehensive high schools, and instituted a series of tiebreakers, including race and ethnicity, that determined who got slots in schools that were “oversubscribed.”
In a sharply worded opinion written by Circuit Judge Diarmuid F. O’Scannlain, the 9th circuit court majority accepted that the district had a “compelling” reason for wanting to consider race: obtaining the educational benefits of diversity. Thus, the policy met one part of the legal standard that must be met to justify distinctions by government on the basis of race, the 67-page opinion states.
But based on his reading of the University of Michigan cases, Judge O’Scannlain concludes that the policy utterly fails to withstand another key requirement of the court’s highest level of scrutiny: to “narrowly tailor” the use of race to achieve compel-ling objectives.
Among many objections to Seattle’s policy, Judge O’Scannlain argues that its effect was “merely to shuffle a few handfuls of different minority students between a few schools,” and thus was ineffective in achieving the district’s purported goals of avoiding racial isolation of students and fostering student interactions among white and nonwhite students.
“The district has not met its burden of proving these marginal changes substantially further its interests, much less that they outweigh the cost of subjecting hundreds of students to disparate treatment based solely upon the color of their skin,” the opinion says.
For that and other reasons, its says, the school district’s policy violates the equal-protection clause of the 14th Amendment, as well as Title VI of the Civil Rights Act of 1964, which prohibits discrimination “on the ground of race, color, or national origin” in any program receiving federal funds.
Concluding precisely the opposite, 9th Circuit Judge Susan P. Graber argues in her dissenting opinion that the district’s policy was in fact carefully crafted “to serve a compelling governmental interest in ensuring that all students in Seattle’s public high schools receive the educational benefits of an integrated learning environment.”
While Judge O’Scannlain argued that the University of Michigan cases laid out the rules for deciding the Seattle case, Judge Graber contended that those decisions “provide several guiding principles” but “do not control in the secondary-school context.”
The U.S. Supreme Court, she writes, “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.”
Because such programs raise issues that differ from those in higher education, she adds, they need to be evaluated with reference to many other Supreme Court precedents, including the long line of desegregation cases that followed the ruling 50 years ago striking down segregated public schools in Brown v. Board of Education of Topeka.
In the Gratz decision, the high court held that the University of Michigan’s undergraduate admissions policy was invalid in part because it automatically assigned a significant number of bonus points toward the total needed for admission to applicants who were African-American, Hispanic, or Native American.
Meanwhile, the Grutter decision held that the law school’s admissions policy met constitutional muster because it considered race only as part of an individual review of all candidates and their potential for lending various forms of diversity to the academic environment.
Establishing a basic principle of particular interest to advocates of integration in K-12 schools, the Grutter decision also made clear that fostering educational diversity—and not just remedying past discrimination—could sometimes justify classifying students by race.
In the Seattle decision, Judge O’Scannlain says the justification for race- conscious policies accepted by the high court in the Grutter case “are as compelling in the high school context as they are in higher education.”
“We simply do not see how the government’s interest in providing for diverse interactions among 18-year-old high school seniors is substantially less compelling than ensuring such interactions among 18-year-old college freshmen,” he writes.
K-12 Called Distinct
But Judge Graber argues in her 45-page dissent that public school districts have subtly different reasons than universities for promoting integration.
Whereas the law school was aiming to improve its students’ academic and professional development, Judge Graber writes, Seattle was more focused on the “socialization and citizenship advantages” of giving students greater opportunities to build cross-cultural relationships.
“The University of Michigan wanted to promote a stimulating academic environment so that its graduates would become accomplished and well-rounded members of the legal profession; the district wants to encourage integrated schools so that its graduates will become tolerant, productive, and well- adapted members of this racially diverse society,” Judge Graber’s opinion says.
In an interpretation rejected by Judge Graber, Judge O’Scannlain says the Michigan decisions established that “racial quotas are strictly prohibited” and concludes that the Seattle tiebreaker “is virtually indistinguishable from a pure racial quota.”
Portraying the Seattle policy as an “impliably reflexive use of race,” he says it ran afoul of the principle established by the Michigan decisions 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.”
Other reasons that the Seattle policy falls short, Judge O’Scannlain says, is that the school board failed to give serious consideration to methods that did not involve race, such as assigning students on the basis of poverty, and did not do enough to minimize harm to students negatively affected by the policy.
A spokeswoman for the Seattle school district said this week that school officials were disappointed by the ruling and were still weighing their legal options. Among them are asking for a review by the full 9th Circuit appeals court and appealing directly to the U.S. Supreme Court.
The district suspended use of the racial tiebreaker in its admissions policy in 2002, after a 9th Circuit panel issued a ruling against the district in April 2002.
Since then, the Washington State Supreme Court issued a decision on one aspect of the case: whether the district’s policy violated a 1998 voter-approved state ban on racial preferences in public employment, contracting, and school admissions. In an 8-1 ruling, the state’s high court ruled in June 2003 that it did not violate that initiative. The case then returned to the 9th Circuit appeals court for consideration of the federal constitutional issues.