The Seattle school district must stop using race as a factor in assigning students to popular high schools, because the policy violates a 1998 state ballot measure prohibiting racial preferences in school admissions, a federal appeals court ruled last week.
“The racial tiebreaker ... is inherently invidious,” said the opinion by a three-judge panel of the U.S. Court of Appeals for the 9th Circuit. The San Francisco-based court overturned a 2001 ruling by a federal judge in Seattle that upheld the district’s policy of promoting racial diversity in its high schools.
The 47,000-student district has an open-enrollment plan for its 10 high schools, but it strives to keep enrollment within 15 percentage points of the district’s overall racial makeup: 40 percent non-Hispanic white students, and 60 percent students of other racial or ethnic groups.
Students apply for their top three high school choices, but in 2000-01, five high schools were oversubscribed. The first tiebreaker gives a preference to students with siblings at the desired high school.
The second tiebreaker is based entirely on race. Students whose race will move a school closer to the desired racial makeup are given a preference to enroll. The racial tiebreaker determined about 10 percent of high school assignments last school year, the appeals court said.
A group called Parents Involved in Community Schools challenged the policy as a violation of the Washington Civil Rights Act, also known as Initiative 200, and the U.S. Constitution’s 14th Amendment guarantee of equal protection under the law. The suit named as plaintiffs four white families affected or likely to be affected by the racial tiebreaker, including two assigned to a school that required taking three city buses to get to and from school. The parents enrolled their children in private school.
A U.S. district court judge in Seattle upheld the policy last year on both state and federal legal grounds. But in its April 16 decision, the 9th Circuit appellate panel said the use of the racial tiebreaker violates the Washington state initiative against racial preferences.
‘Remarkably Clear’
The court said the state measure was “remarkably clear.” A district “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race in the operation of public education,” it states. Although both whites and nonwhites might benefit from the preference at different times, “two wrongs do not make a right,” the court added.
Because it struck down the policy under the state law, the court said it did not need to decide whether the policy also violated the 14th Amendment’s equal-protection clause.
“That would have been a decision of more significant impact for federal law,” said Harry J.F. Korrell, a lawyer for the challengers. “But this still means states can feel a little more confident adopting similar measures.”
Seattle Superintendent Joseph Olchefske said in a statement that he was deeply disappointed by the ruling.
“It is our job to educate all students to the best of our ability, and experience tells us that students thrive in a diverse environment,” he said.
The school board agreed on April 17 to request a rehearing before a larger panel of judges on the 9th Circuit court.
