Seattle School District to fight for racial tiebreaking

By Sanjay Bhatt
Seattle Times staff reporter

Mark Green is the district's chief operating officer.

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Mark Green, the district's chief operating officer, said the School Board has decided to petition for an "en banc" rehearing before the 9th U.S. Circuit Court of Appeals. If the request is granted, both sides likely would present their arguments in court — for the fifth time — before a panel of 11 active circuit judges in San Francisco.

A U.S. District Court judge and the state Supreme Court have upheld the so-called racial tiebreaker, while the appellate court has rejected it twice.

The school district suspended its use of the racial tiebreaker in the 2002-03 school year until the courts could resolve its legality.

A three-judge panel of the 9th Circuit issued a 2-1 opinion a week ago in favor of the plaintiff, Parents Involved in Community Schools (PICS).

The group of Queen Anne and Magnolia parents sued the district in July 2000 after their children didn't get assigned under Seattle's open-choice plan to Ballard High School because they were white.

In high schools where demand exceeds the number of seats and the student body is racially imbalanced, the district winnows the applicants by admitting students of the school's minority racial group before those students who live closest to the school.

Seattle's plan violates students' constitutional protection from racial discrimination because it relies solely on race in determining whether a student would make a school diverse, the court ruled.

"We have in front of us a split decision," Green said in an interview yesterday. "We think we have a good case."

The district argues that it must explicitly factor race into student assignments in a city where de facto racial segregation in housing persists and where parents are likely to choose schools close to home.

Diversity in the classroom, the district argues, can lead to greater understanding among students of different cultures and races. And in the absence of a racial tiebreaker, some minority students in the city's South End would be denied access to high-quality schools in the North End, the district says.
 
PICS parents say they like diversity but object to how the district has sought to achieve it. And they say the tiebreaker has had little effect on changing the racial composition of the schools that the district deems racially out of balance. The court's majority sided with the parents, citing U.S. Supreme Court rulings last year in two affirmative-action cases against the University of Michigan.

Judge Susan Graber sided with the district in her dissenting opinion: "I would hold that the District has a compelling interest in structuring its assignment policies to prevent a return to the era in which Seattle's undisputedly segregated housing pattern was the exclusive determinant of school assignments to neighborhood schools."

She criticized the other two judges for painting a misleading portrait of the racial tiebreaker's benefits. While acknowledging that a small number of students are affected districtwide, Graber said the tiebreaker dramatically affects the diversity of the freshman class: In the 2000-01 school year, it produced a 21 percent increase in minority student representation at Ballard High and a 10 percent and 14 percent increase respectively at Nathan Hale and Roosevelt, all in the city's North End.

She credited the tiebreaker with generating a 20 percent decrease in non-white enrollment at Franklin High, giving more white students the option to attend the South End school.

For the district's case to be heard again, a majority of the circuit's active judges must accept its petition. If the court rejects the petition, the School Board has the option of petitioning the U.S. Supreme Court. The high court never has decided a case involving a race-based student assignment plan voluntarily carried out by a district with the intent of promoting integration.

Green said the board is taking the case one step at a time and hasn't discussed that option.

"We're in an area without a lot of legal precedent," he said. "There aren't many race-based, K-12 assignment cases out there."

Sanjay Bhatt: 206-464-3103 or sbhatt@seattletimes.com