U.S. Supreme Court to hear Seattle's school racial-tiebreaker case

Seattle Public Schools will be under a constitutional microscope Monday when the U.S. Supreme Court hears arguments on whether the district acted properly when it used race to assign students to its most popular schools.

To many in Seattle, the case is old news. The lawsuit was filed six years ago and the students originally involved are now in college. The district has suspended use of its "integration tiebreaker" since 2001.

But to constitutional scholars, school administrators and civil-rights advocates, the case titled Parents Involved in Community Schools vs. Seattle School District is significant.

"It's perhaps the most important case the [Supreme Court] is taking up this year," said Douglas Kmiec, a professor at the Pepperdine University School of Law and the co-author of three books on constitutional law.

The case asks fundamental questions about the extent to which governments can use race to promote diversity, Kmiec said.

Specifically: Is a racially diverse student body a "compelling government interest," as previously defined by the Supreme Court, that justifies the use of race to determine where kids go to school?

The school district contends it used race as part of its process for assigning students to schools to enhance students' education by introducing them to people with multiple backgrounds and points of view.

The parents who are suing disagree. They say their children, who are white, were unlawfully discriminated against when they were denied admission to their preferred schools.

Both sides have attracted enormous support. More than 70 groups have filed friend-of-the-court briefs, including more than 50 who are defending the school district's policy as a useful and justifiable bulwark against racial inequity.

"Open Choice" plan

The central issue before the Supreme Court will be the school district's "Open Choice" plan, which was first used in 1999 to distribute ninth-graders among Seattle's 10 traditional public high schools.

Under the plan, parents were asked to name the preferred schools for their children. Most of the roughly 3,000 freshmen went to one of their top choices.

However, five high schools — Ballard, Nathan Hale and Roosevelt in North Seattle; Franklin in South Seattle and Garfield in the Central Area — had more applicants than they could accommodate.

The "Open Choice" plan used a series of tiebreakers to allocate seats.

First, students with siblings at a given school were allowed to attend the same school.

Next came the "integration tiebreaker," which sought to have the student populations at the oversubscribed schools mirror the racial makeup of the district as a whole.

Among Seattle's 47,989 students in 1999, roughly 40 percent were white and 60 percent were students of color. If a child's race would help bring a school's students to a 40-60 split, he or she was assigned to that school.

For instance: Ballard would have been 67 percent white and 33 percent students of color without the tiebreaker in 1999, according to the district. With the tiebreaker, it became 46 percent white and 54 percent students of color, after 107 students of color were assigned to Ballard.

Yet because of the racial tiebreaker, Elizabeth Brose, a white student, could not attend Ballard or her other top choices.

Neither could Andy Kurfirst, who wanted to take advantage of Ballard's Biotech Career Academy.

Their parents and others formed Parents Involved in Community Schools and took the district to court. In the past six years, the case has been heard by the U.S. District Court, the Washington state Supreme Court and the 9th U.S. Circuit Court of Appeals.

Multiple verdicts have been rendered for and against the school district.

Most recently, a panel of 9th Circuit judges upheld the school district's policy 7-4 in October 2005.

Defense for district

Michael Madden, a Seattle lawyer with Bennett Bigelow & Leedom, will defend the district before the Supreme Court.

In the three decades before the "Open Choice" plan, he said, the district used a mix of voluntary and mandatory methods to integrate high schools that, due to residential housing patterns, were in segregated neighborhoods.

In the 1950s, he said, only 15 of the 2,500 students at Ballard High were students of color.

Without the racial tiebreaker, "you're going to gradually see the diversity of that school decline," he said.

Madden added that unlike a selective college-admissions system, under the "Open Choice" plan no one is denied an education — even if a white student does not get his first choice, he's assured of a seat somewhere.

In 2003, the Supreme Court ruled that a University of Michigan policy that assigned points to African Americans, Hispanics and Native Americans on an undergraduate admissions scale was unconstitutional because it functioned too much like a quota system.

Yet the court endorsed an admissions policy used by the University of Michigan Law School that considered each student's race, because it looked at race as just one component of diversity alongside such non-racial factors as work experience, foreign-language skills and country of origin.

Madden also rejected claims that the racial tiebreaker represented a quota system, because the district did not mandate exact numbers of minorities at different schools, but instead used approximate ratios as targets.

Harry Korrell, who represents the plaintiffs, said the school district and the more than 50 supporters that have filed friend-of-the-court briefs in support of the district — including organizations such as the National Association for the Advancement of Colored People and the American Civil Liberties Union — are well-meaning but wrong.

"The vast majority of them say segregation is bad and integration is good," Korrell said. "We agree. But we don't think that has anything to do with Seattle."

In a Supreme Court filing outlining his case, Korrell said the Seattle plan violates the equal-protection clause of the 14th Amendment to the Constitution, which states "no state shall ... deny to any person within its jurisdiction the equal protection of the laws."

Seattle's high schools were racially diverse even without the tiebreaker, Korrell wrote, yet the district used "racial balancing" to achieve a predetermined racial balance in the schools.

The Bush administration weighed in on the side of the parents in a friend-of-the-court brief filed by Paul Clement, U.S. solicitor general.

The White House took particular issue with the district's stated goal of using the racial tiebreaker to promote diversity, since it did nothing to improve the racial balance at the Seattle schools that were not oversubscribed.

The populations of students of color at Cleveland and Rainier Beach in 2000-01 were 90 percent and 92 percent, respectively.

"The district's plan can hardly be justified as a tailored promotion of the interest in avoiding racial isolation, when it does not directly address the district's most racially concentrated and isolated high schools," wrote Clement.

Tiebreaker suspended

The district suspended use of the racial tiebreaker in 2001, after the original lawsuit was filed. It is not clear whether it will reinstate the policy even if the Supreme Court rules in its favor.

Without the racial tiebreaker in place, the district decides student placement based on where they live. That appears to have made mostly white schools less diverse and increased the percentage of students of color at mostly nonwhite schools.

In 2001, Franklin was 21 percent white. Since then, the percentage of white students has fallen to 10 percent.

To Brose, that simply means more kids are going to school in their own neighborhood.

And it does not mean that Franklin is not diverse, she said, pointing out the dozens of different ethnicities at the school.

"The way I look at it is that there's a lot of parents that want to send their kids to that school, because it's close to home, so the white kids aren't taking those spots," she said.

Less-popular schools grew less diverse, too.

Rainier Beach and Cleveland high schools, both of which have falling enrollment and are attended mostly by students of color, both saw the percentage of white students fall in the past five years — from 9 percent to 7 percent at Cleveland and from 7 percent to 6 percent at Rainier Beach.

A ruling in the case is expected sometime in the spring.

David Bowermaster: 206-464-2724 or dbowermaster@seattletimes.com