Court Rejects Seattle's Race-Based Assignment Policy
By Caroline Hendrie

Advancing the legal debate over what school districts can do to promote demographic diversity in public schools, a federal appeals panel has struck down for the second time Seattle's policy of assigning students to high schools based partly on their ethnicity and race.

A three-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit held in a 2-1 decision on July 27 that the school district's policy amounted to "an unadulterated pursuit of racial proportionality that cannot possibly be squared" with constitutional guarantees of equal protection under the laws.

Accompanied by a spirited dissent, the federal appeals court ruling is among the first to address how last year's decisions by the U.S. Supreme Court on the use of race in university admissions should be applied in the K-12 context. In Grutter v. Bollinger, the high court upheld the admissions policy at the University of Michigan's law school, while in Gratz v. Bollinger it invalidated the university's undergraduate admissions system.

The legal battle in Seattle began four years ago, when a local group called Parents Involved in Community Schools challenged the 46,000-student district's policy of using a "racial tiebreaker" to help apportion seats in high schools that had more applicants than space. In 1998, the district had begun allowing students citywide to choose among any of its 10 comprehensive high schools, and instituted a series of tiebreakers, including race and ethnicity, that determined who got slots in schools that were "oversubscribed."

In a sharply worded opinion written by Circuit Judge Diarmuid F. O'Scannlain, the 9th circuit court majority accepted that the district had a "compelling" reason for wanting to consider race: obtaining the educational benefits of diversity. Thus, the policy met one part of the legal standard that must be met to justify distinctions by government on the basis of race, the 67-page opinion states.

But based on his reading of the University of Michigan cases, Judge O'Scannlain concludes that the policy utterly fails to withstand another key requirement of the court's highest level of scrutiny: to "narrowly tailor" the use of race to achieve compel-ling objectives.

Among many objections to Seattle's policy, Judge O'Scannlain argues that its effect was "merely to shuffle a few handfuls of different minority students between a few schools," and thus was ineffective in achieving the district's purported goals of avoiding racial isolation of students and fostering student interactions among white and nonwhite students.

"The district has not met its burden of proving these marginal changes substantially further its interests, much less that they outweigh the cost of subjecting hundreds of students to disparate treatment based solely upon the color of their skin," the opinion says.