In the U.S. District Court for the Western District of Washington, a nonprofit corporation formed by a group of parents whose children were not, or may not be, assigned to a high school of their choice under the Seattle school district's assignment plan (which used a racial integration tiebreaker, described below) filed a civil lawsuit on July 18, 2000. Relying on 42 U.S.C. § 1983 and represented by private counsel, the plaintiff organization claimed that use of the tiebreaker violated the Washington Civil Rights Act ("Initiative 200") (codified at RCW 49.60.400), the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and Title VI of the federal Civil Rights Act of 1964, 42 U.S.C. § 2000d. The defendants were the school district and certain of its officials. The plaintiff alleged that Seattle's public school system used a plan to assign students to its ten high schools that considered, for example, applicants' preferences, school proximity, and siblings' placement, but also considered race as a "tiebreaker" factor, along with other tiebreakers, to preclude over-populating high schools considered more desirable by applicants. When the race tiebreaker was used, the school district's object included selecting for placement students whose race would help mitigate what the district regarded as imbalance in the racial makeup of a particular school. The school district considered that a school was out of balance if it deviated by more than 15% from the overall racial breakdown of the students attending Seattle's public schools, which (at the time of the lawsuit) were approximately 40% white and 60% nonwhite. According to the docket sheet for the case, on July 28, 2000, the defendants filed a counterclaim against the plaintiff, along with an answer denying liability. We do not have a copy of the complaint, nor of the counterclaim, so we do not know specifics of the relief either party sought; however, the plaintiff plainly sought injunctive relief to preclude use by the defendants of the racial tiebreaker component of the district's "open choice" student assignment plan. After the initially-assigned district judge recused herself in December 2000, the case was assigned to District Judge Barbara J. Rothstein. The discovery and pre-trial motion process ensued, with the parties eventually filing cross-motions for summary judgment.
In ruling on those motions, Judge Rothstein first found that the Seattle district's use of a racial tiebreaker did not offend Initiative 200, the then-recently-passed voter initiative barring state government, including school districts, from discriminating against or granting preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public education. The judge interpreted that provision to mean that a school board's race-conscious assignment policy would not constitute a "preference" or "discrimination" when instituted to accomplish school integration, based on state court interpretations of those terms in the state constitution. Turning to the plaintiff's federal claims, Judge Rothstein found compelling the school board's purpose of mitigating the effects of de facto residential segregation which, otherwise, would impede benefits offered by racially diverse schools and would result in re-segregation of the city's public schools. The judge also viewed the plan as narrowly tailored to serve the established compelling interests. Accordingly, her view was that the policy did not violate federal law and, on April 6, 2001, she granted the defendants' motions for summary judgment on the state and federal law claims. Parents Involved in Community Schools v. Seattle School Dist. No. 1, 137 F. Supp.2d 1224 (W.D. Wash. 2001).
The defendants appealed to the U.S. Court of Appeals for the Ninth Circuit. A panel of that court reviewed the school's policy and its' effect, concluding that the racial tiebreaker determines about 10% of student assignments in Seattle's public high schools, noting that those schools had never operated under laws requiring segregation. Following the urgings of the parties to not certify a question about the meaning of Initiative 200 to the state's Supreme Court, the panel interpreted the voter initiative differently than did the district court, saying that the interpretation that the state court would give it was clear: giving the provision its' plain meaning, as state law required, meant the racial tiebreaker did grant preferential treatment in violation of Initiative 200. The panel observed that use of the racial tiebreaker resulted, during one stage of the admissions process, in all decisions being made based solely on race. Thus, as support for its' state law interpretation, the court concluded that the racial tiebreaker at issue was "inherently invidious," under federal law. By granting some students preferential treatment over others on the basis of race, the school district violated state law as enacted by the initiative, in the panel's view. In April 2002, it reversed the district court's ruling. Parents Involved in Community Schools v. Seattle School Dist. No. 1, 285 F.3d 1236 (9th Cir. 2002) (Circuit Judge Diarmuid F. O'Scannlain). Additionally, the appellate panel granted the plaintiff's motion for an injunction pending the filing and disposition of any petition for rehearing or rehearing en banc. The injunction prevented the defendants from using the racial tiebreaker in making high school assignments pending further order of the court.
The injunction, however, was short-lived, as the defendants' petition for rehearing was granted on June 17, 2002. That day, the appellate panel withdrew its' opinion and vacated the injunction. Parents Involved in Community Schools v. Seattle School Dist. No. 1, 294 F.3d 1084 (9th Cir. 2002). Given that the pendency of the rehearing en banc petition precluded a final judgment before the upcoming school year began, and viewing it as a prudent step to seek the opinion of the state's highest court on a matter of interpreting state law, the panel on its own motion decided to certify to the Washington Supreme Court the question: "By using a racial tiebreaker to determine high school assignments, does Seattle School District Number 1 'discriminate against, or grant preferential treatment to, any individual or group on the basis of race, ...color, ethnicity, or national origin in the operation of ... public education' in violation of Initiative 200...?" Parents Involved in Community Schools v. Seattle School Dist. No. 1, 294 F.3d 1085 (9th Cir. 2002). In these appellate proceedings, various amici curiae filings were made by the ACLU, the Pacific Legal Foundation, the Center for Equal Opportunity, the American Civil Rights Institute, and the Urban League of Metropolitan Seattle.
On June 26, 2003, the Washington Supreme Court issued its en banc opinion that the school district's "open choice" assignment plan did not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, color, ethnicity, or national origin in the operation of public education in violation of Washington's discrimination statute, because it used race neutrally and did not promote a less qualified minority applicant over a more qualified applicant. Parents Involved in Community Schools v. Seattle School Dist. No. 1, 72 P.2d 151 (Wash. 2003).
Having received the state court's ruling, the Ninth Circuit had the case re-argued in December 2003. A new panel opinion resulted, on July 27, 2004. In a 2-1 decision, Judge O'Scannlain wrote that racial diversity in education was a compelling governmental interest, but the school district's using race as tiebreaker in student assignments was not narrowly tailored to further that interest. Therefore, the panel ruled that the school district's use of the racial tiebreaker violated the equal protection mandate of the Fourteenth Amendment. Parents Involved in Community Schools v. Seattle School Dist. No. 1, 377 F.3d 949 (9th Cir. 2004). The defendants' application for rehearing en banc was granted on February 1, 2005. Parents Involved in Community Schools v. Seattle School Dist. No. 1, 395 F.3d 1168 (9th Cir. 2005) (Circuit Judge Mary M. Schroeder).
Unlike most federal appellate courts, en banc review in the Ninth Circuit did not entail review by all sitting circuit judges, but by eleven assigned to the case. Judge O'Scannlain was not one of the eleven. On October 20, 2005, those who did provide en banc review decided, 7-4, that the use of the racial tiebreaker did not violate federal law. The majority opinion, by Circuit Judge Raymond C. Fisher, held that: (1) the school district had a compelling interest in securing educational and social benefits of racial and ethnic diversity and in ameliorating racial isolation or concentration in its high schools by ensuring that its assignments did not simply replicate Seattle's segregated housing patterns; (2) for purposes of determining whether the district's plan was narrowly tailored to meet its compelling interests, the district's fifteen percent plus or minus variance was not a "quota"; (3) the district made a good-faith effort to consider feasible race-neutral alternatives and permissibly rejected them in favor of a system involving sibling preference, the race-based tiebreaker, and proximity preference; (4) the racial tiebreaker imposed a minimal burden shared equally by all district's students and did not unduly harm members of any racial group; and (5) the plan included periodic reviews to determine whether racial preferences were still necessary to achieve student body diversity. As a result, the district court's decision was affirmed. Parents Involved in Community Schools v. Seattle School Dist. No. 1, 426 F.3d 1162 (9th Cir. 2005).
The plaintiff, however, petitioned the Supreme Court to issue a writ of certiorari in order to review the Ninth Circuit's affirmance. On June 5, 2006, the Supreme Court issued the writ and directed that the case and a similar appeal involving public schools in Jefferson County (Louisville), Kentucky, were to be considered together. Parents Involved in Community Schools v. Seattle School Dist. No. 1, 547 U.S. 1177 (2006).
In June 2007, the Supreme Court issued its ruling addressing the issues raised in the two cases. Published as Parents Involved in Community Schools v. Seattle School Dist. No. 1, __ U.S. __, 127 S. Ct. 2738, 168 L. Ed. 2d 508 (June 28, 2007) (John G. Roberts, Jr., Chief Justice), the ruling consists of several parts, with some mustering a 5-4 majority and others only a plurality. The majority framed the issue as whether a public school system that had not operated legally segregated schools (i.e., Seattle) or that had been found to be unitary (i.e., Jefferson County) may choose to classify students by race and rely upon that classification in making school assignments. Although the appellate courts had upheld the school systems in each case, the Supreme Court reversed. After reviewing the operation of the racial classifications used by each school system and ruling that changed circumstances did not deprive it of jurisdiction, the Supreme Court set out the framework it used to evaluate the two cases. Its prior cases, in evaluating the use of racial classifications in the school context, recognized two interests that qualified as compelling. The first was the compelling interest of remedying the effects of past intentional discrimination. This factor could not apply to the Seattle system, which had never engaged in such discrimination, nor to the Louisville system, which had been found, earlier, to be unitary. The second government interest recognized as compelling was the interest in diversity in higher education, but only where the racial component of the process was a part of an individualized, holistic consideration process. Because each system under review relied on racial classifications in a nonindividualized, mechanical way, and because of the different context presented by public elementary and secondary schools in comparison to higher education, the school systems' could not rely on race as they had. In a portion of his opinion garnering three concurring votes, Chief Justice Roberts wrote that the racial classifications employed by the districts were not narrowly tailored to the goal of achieving the educational and social benefits asserted to flow from racial diversity. In his view of their design and operation, the plans were directed only to racial balance, pure and simple, an objective he said that the Court had repeatedly condemned as illegitimate. He rejected use of racial balancing as an end in itself and rejected efforts to re-label the practice as racial diversity, avoidance of racial isolation, or racial integration. To the Chief Justice, the Constitution prohibited the states' use of means that treat students solely as members of a racial group, rather than as individuals. In the following part of his opinion, he noted that both districts asserted the minimal impact of the districts' racial classifications on school enrollment. To him, the assertion cast doubt on the "necessity" component employed in assessing governmental use of racial classifications. Nor had either district shown they seriously considered other, race-neutral methods of achieving their educational goals. The opinion described what the Chief Justice considered flaws in a lengthy dissent authored by Justice Stephen Breyer. Justice Stevens also filed a dissenting opinion. Justice Thomas filed a concurring opinion and Justice Kennedy filed a separate opinion, concurring in part and concurring in the judgment. The cases were remanded to the Courts of Appeals for further proceedings.
On August 22, 2007, the Ninth Circuit vacated its 2005 opinion and remanded the case to the District Court for further proceedings. The plaintiff subsequently moved for entry of judgment, seeking a declaratory judgment, an injunction, as well as attorney's fees pursuant to the Civil Rights Attorney's Fees Awards Act, 42 U.S.C. §1988. In support of its request for an injunction, the plaintiff argued that there was a substantial risk that the District would adopt new impermissible racial classifications. The plaintiff also requested that the court retain jurisdiction to determine the amount of fees and costs, and to enforce the injunction if necessary.
After an extended briefing schedule, the District Court (Judge Barbara Rothstein) entered judgment in favor of the plaintiff on January 12, 2009. However, Judge Rothstein denied the plaintiff's requests for declaratory relief and an injunction. She denied the injunction on the basis that there was nothing in the record to suggest that the District was planning to implement a new admission policy which would run afoul of the Supreme Court's opinion. As to declaratory relief, Judge Rothstein denied this after finding that the plaintiff's proposed declaratory judgment was too broad in light of the Supreme Court's opinion. Judge Rothstein also found that the plaintiff was the prevailing party for purposes of the Civil Rights Attorney's Fees Awards Act, but declined to declare it was entitled to attorney's fees until she had received a breakdown of the fees the plaintiff would be seeking.
On February 5, 2009, the plaintiff appealed the denial of declaratory relief and a permanent injunction to the Ninth Circuit. One week later, the defendant cross appealed the same order. While both appeals were pending, the parties participated in the Ninth Circuit's Mediation Program. In July 2009, the plaintiff withdrew its motion for attorney's fees. The case closed on August 4, 2009, when the parties stipulated to the dismissal of both appeals.
Materials and a summary of the Louisville case exist in this database as SD-KY-0001
.Mike Fagan - 07/01/2008
Greg in den Berken - 11/11/2014