The Seattle School District argues for racial tiebreaker

SAN FRANCISCO — The Seattle School District urged a federal appeals court here yesterday to allow it to use race as a key element in admissions, a criteria it suspended in 2002 amid legal challenges from parents complaining skin color should not be a deciding factor.

Seattle's racial tiebreaker, unique among Washington school districts, was used to increase diversity in schools that had more applicants than seats and whose proportion of white and nonwhite students deviated 15 percent or more from the districtwide average.

In 2001, 200 high-school students were denied the school of their choice because they were white, and 100 more because they were classified as a "nonwhite" minority — an admissions policy that kept some students from attending their neighborhood schools.

During an hour of oral arguments, an 11-judge panel of the 9th U.S. Circuit Court of Appeals waffled yesterday on whether it would approve of the policy, implemented in 1998, for the district's 10,000 students in all 10 of its high schools. The court did not indicate when it would rule.

In 2001, U.S. District Judge Barbara Rothstein of Seattle upheld the so-called "racial tiebreaker" technique — in the face of mounting criticism — as a legitimate response to desegregating the city's neighborhoods.

But last year, a three-judge panel of the 9th Circuit reversed that ruling, saying the technique violated students' rights to equal treatment. The appeals court, however, agreed to rehear the case before a full panel of judges.

"The reason why they are on the bus is because they have the wrong skin color," Judge Andrew Kleinfeld said yesterday, suggesting the district should use a lottery, not race, to determine who enrolls where.

But school-district attorney Michael Madden noted that under the plan students may choose any school to attend and the district automatically allows those with siblings to attend the same school. The district uses race — if a sibling isn't already enrolled at a targeted school — as a determining factor only when there are more applicants than available classroom space.

The district is trying to create an environment in which each school has 60 percent minorities and 40 percent whites. Those percentages reflect overall enrollment figures, and the district values a desegregated environment, Madden said.

"The lottery doesn't allow the board to accommodate competing values," he added.

Judge William Fletcher was not sure whether the court should intervene.

"How do we get the authority to second-guess the School Board?" Fletcher asked the attorney for Parents Involved in Community Schools, the group suing the Seattle district.

The group consists mostly of white parents from Magnolia and Queen Anne who sued the district five years ago when their children weren't admitted to Ballard High School, the high school closest to them, which regularly has more applicants than available seats.

Some parents from the same neighborhoods protested in 2004 after learning their children were assigned to Cleveland High School in South Seattle, where about 90 percent of the students are ethnic minorities.

Harry Korrell, the group's attorney, replied: "There is no basis for using a race-based plan."

Last August, the Seattle School Board chose to appeal to the full 11-judge court even as it was discussing a five-year plan that would encourage more students to attend their neighborhood schools and would limit cross-town bus service.

Parents have roundly criticized the district for operating schools of sharply varying quality across the city.

More recently, Superintendent Raj Manhas has proposed using family income as a tiebreaker for assigning poor students to popular schools like Ballard High.

In February, the appeals court, which is the nation's largest, agreed to analyze the Seattle policy with two 2003 U.S. Supreme Court decisions involving race in admissions at the University of Michigan. In those cases, the nation's top court underscored that racial quotas are unconstitutional but left room for the nation's public universities — and by extension other public and private institutions — to seek ways to make use of race in some form.

The Supreme Court upheld the enrollment policy at the University of Michigan Law School, which uses a formula giving extra consideration to blacks, Hispanics and applicants from other minority groups the school says historically have suffered from discrimination.

But the Supreme Court struck down a more-rigid, point-based admissions policy for University of Michigan undergraduates. The Constitution permits schools to consider an applicant's race as one of many factors when weighing which students will win a place at a top-notch school, but an institution cannot install inflexible or automatic racial preferences.

Madden told the court that minority populations are increasing in some schools because the policy was declared unconstitutional; the minority population jumped 8 percentage points at one high school.

Judge Harry Pregerson said racial diversity in public schools is "a good idea" because schools in "white neighborhoods" tend to be "better than schools in minority neighborhoods."

One plaintiff in the case, Jill Kurfirst, said outside court that, in 2000, her freshman son Andrew was denied enrollment to the school closest to her North Seattle neighborhood and instead assigned to one about 10 miles away. The district said her son, who has a learning disability, might be admitted to the closer school, but only if he fails at the other school, she said. "After hearing that," Kurfirst said, "we moved to the next town."

Seattle Times reporter Sanjay Bhatt contributed from Seattle to this story.