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October 20, 2005

Appeals Court Upholds Seattle School District's Use of Race to Maintain Diversity

The U.S. Court of Appeals for the Ninth Circuit today issued an important opinion upholding the Seattle, Washington school district's limited consideration of race as a factor in determining high school assignments in order to avoid the educational disadvantages of racially isolated schools and to secure the educational benefits of student body diversity. The decision, from a special 11-member panel of the Court, rejected, by an 7-4 vote, the reasoning of an earlier three-member tribunal. The Ninth Circuit becomes the third Appeals Court to issue a favorable ruling on the use of race to achieve diversity in K-12 public schools since the U.S. Supreme Court's similar decision in the University of Michigan affirmative action admissions cases.

Ted Shaw, Director-Counsel and President of LDF, welcomed today's ruling as "another strong and positive endorsement of the principle underlying the Supreme Court decisions in the Michigan cases: that the Constitution does not forbid appropriately tailored use of race in assigning or admitting students to educational institutions, be they public school systems or colleges and universities, to ensure truly equal access to educational opportunities for all students and to overcome long-maintained patterns of exclusion that have stigmatized and harmed African-American and other minority citizens of our country."

For more than forty years, the Seattle school system has attempted to avoid school enrollments that mirror the segregated residential patterns in the city. For example, in the 1970's the district implemented a variety of voluntary transfer or magnet school programs, but none succeeded in stemming the increasing de facto segregation in the schools. In December 1977, a mandatory assignment plan was adopted. Washington voters adopted an initiative to block that plan but the U.S. Supreme Court held that measure unconstitutional in 1982.

In 1988, the school system changed the assignment plan to a "controlled choice" model to enhance individual options and reduce busing and ultimately, ten years later, enacted the plan that was challenged in the case decided today. Under that plan, ninth graders may select any high school in the district, and as many pupils are given their "first choice" assignments as possible. If more students select a particular school as their first choice than its capacity, a series of "tiebreakers" are applied to regulate admissions. First, all applicants who have a sibling already attending the school are admitted. The second tiebreaker involves consideration of the race of student applicants if, and only if, the school in question is more than fifteen percentage points above or below the racial makeup of Seattle's high school population. In that event, applicants (all of whom indicated that the school was their "first choice") are admitted on the basis of race until the enrollment is brought within the +/- 15% range. Thereafter, the remaining capacity of the school has been filled on the basis of the third tiebreaker (applicants whose residences are closest to the school), without any further consideration of race.

In the 2001-02 school year, when the range was increased to 15% from 10%, only three of Seattle's ten high schools used the racial tiebreaker. A group of parents, however, challenged the constitutionality of the district's taking race into account to any degree in making assignments.

Today's opinion rejects that contention. Relying upon the Supreme Court's rulings in the University of Michigan cases, Grutter v. Bollinger and Gratz v. Bollinger in 2003, but also applying the Supreme Court's direction that "[c]ontext matters" in such disputes, the Ninth Circuit panel measured the Seattle plan by a "strict scrutiny" standard and found it constitutional. The Court of Appeals found that both achieving the benefits of racially mixed and diverse student bodies, on the one hand, and also avoiding the civic and educational disadvantages that research has documented are associated with racially isolated and imbalanced schools, qualified as "compelling interests" justifying race-conscious school assignments at the high school level.

The Court of Appeals also held that the plan was appropriately "narrowly tailored" - the second part of the test applied by the Supreme Court in the Michigan cases - to survive constitutional challenge. It flatly rejected the claim that the school system had to give "individualized consideration" to every transfer applicant, as if they were seeking admission to a college or university:

In Grutter and Gratz, in order to prevent race from being used as a mechanical proxy for an applicant's qualifications, the Court required individualized, holistic consideration of each applicant across a broad range of factors (of which race may be but one). . . . All of Seattle's high school students must and will be placed in a Seattle public school. Students' relative qualifications are irrelevant because regardless of their academic achievement, sports or artistic ability, musical talent or life experience, any student who wants to attend Seattle's public high schools is entitled to an assignment; no assignment to any of the District's high schools is tethered to a student's qualifications.