426 F.3d 1162 (9th Cir. 2005), 01-35450, Parents Involved in Community Schools v. Seattle School Dist. No. 1

Docket Nº:01-35450.
Citation:426 F.3d 1162
Party Name:PARENTS INVOLVED IN COMMUNITY SCHOOLS, a Washington nonprofit corporation, Plaintiff-counter-defendant-Appellant, v. SEATTLE SCHOOL DISTRICT, NO. 1, a political subdivision of the State of Washington; Joseph Olchefske, in his official capacity as superintendent; Barbara Schaad-Lamphere, in her official capacity as President of the Board of Director
Case Date:October 20, 2005
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1162

426 F.3d 1162 (9th Cir. 2005)

PARENTS INVOLVED IN COMMUNITY SCHOOLS, a Washington nonprofit corporation, Plaintiff-counter-defendant-Appellant,


SEATTLE SCHOOL DISTRICT, NO. 1, a political subdivision of the State of Washington; Joseph Olchefske, in his official capacity as superintendent; Barbara Schaad-Lamphere, in her official capacity as President of the Board of Directors of Seattle Public Schools; Donald Neilson, in his official capacity as Vice President of the Board of Directors of Seattle Public Schools; Steven Brown; Jan Kumasaka; Michael Preston; Nancy Waldman, in their official capacities as members of the board of Directors, Defendants-counter-claimants-Appellees.

No. 01-35450.

United States Court of Appeals, Ninth Circuit.

October 20, 2005

Argued and Submitted En Banc June 21, 2005

Appeal from the United States District Court for the Western District of Washington, D.C. No. CV-00-01205-BJR, Barbara Jacobs Rothstein, District Judge, Presiding

Page 1163

[Copyrighted Material Omitted]

Page 1164

[Copyrighted Material Omitted]

Page 1165


Harry J.F. Korrell (argued) and Daniel B. Ritter, Davis Wright Tremaine LLP, Seattle, Washington, for the plaintiff-counter-defendant/appellant.

Michael Madden (argued) and Carol Sue Janes, Bennett Bigelow & Leedom, P.S., Seattle, Washington, and Mark S. Green, Office of the General Counsel, Seattle School District No. 1, Seattle, Washington, for the defendants-counter-claimants/appellees.

Sharon L. Browne, Pacific Legal Foundation, Sacramento, California, and Russell C. Brooks, Pacific Legal Foundation, Bellevue, Washington, for the amici curiae Pacific Legal Foundation, American Civil Rights Institute, American Civil Rights Union and Center for Equal Opportunity in support of plaintiff-counter-defendant/appellant.

Paul J. Lawrence, Preston Gates & Ellis LLP, Seattle, Washington, for the amicus curiae American Civil Liberties Union in support of defendants-counter-claimants/appellees.

Before: Mary M. Schroeder, Chief Judge, Harry Pregerson, Alex Kozinski, Andrew J. Kleinfeld, Michael Daly Hawkins, William A. Fletcher, Raymond C. Fisher, Richard C. Tallman, Johnnie B. Rawlinson, Consuelo M. Callahan and Carlos T. Bea, Circuit Judges.

Page 1166


FISHER, Judge.

RAYMOND C. FISHER, Circuit Judge, with whom Chief Judge Schroeder and Judges Pregerson, Hawkins, W. Fletcher and Rawlinson join concurring; Judge Kozinski, concurring in the result:

This appeal requires us to consider whether the use of an integration tiebreaker in the open choice, noncompetitive, public high school assignment plan crafted by Seattle School District Number 1 (the "District") violates the federal Constitution's Equal Protection Clause. Our review is guided by the principles articulated in the Supreme Court's recent decisions regarding affirmative action in higher education, Grutter v. Bollinger, 539 U.S. 306 (2003), and Gratz v. Bollinger, 539 U.S. 244 (2003), and the Court's directive that "[c]ontext matters when reviewing race-based governmental action under the Equal Protection Clause." Grutter, 539 U.S. at 327. We conclude that the District has a compelling interest in securing the 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 do not simply replicate Seattle's segregated housing patterns.1 We also conclude that the District's Plan is narrowly tailored to meet the District's compelling interests.

I. Background 2

A. Seattle Public Schools: A Historical Perspective

Seattle's historical struggle with the problem of racial isolation in its public school system provides the context for the District's implementation of the current challenged assignment plan. Seattle is a diverse community. Approximately 70 percent of its residents are white, and 30 percent are nonwhite. Seattle public school enrollment breaks down nearly inversely, with approximately 40 percent white and 60 percent nonwhite students. A majority of the District's white students live in neighborhoods north of downtown, the historically more affluent part of the city. A majority of the city's nonwhite students, including approximately 84 percent of all African-American students, 74 percent of all Asian-American students, 65 percent of all Latino students and 51 percent of all Native-American students, live south of downtown.

The District operates 10 four-year public high schools. Four are located north of downtown - Ballard, Ingraham, Nathan Hale and Roosevelt; five are located south of downtown - Chief Sealth, Cleveland, Franklin, Garfield and Rainier Beach; one is located west of downtown - West Seattle. For over 40 years, the District has made efforts to attain and maintain desegregated schools and avoid the racial isolation or concentration that would ensue if school assignments replicated Seattle's segregated housing patterns. Since the 1960s, while courts around the country

Page 1167

ordered intransigent school districts to desegregate, Seattle's School Board voluntarily explored measures designed to end de facto segregation in the schools and provide all of the District's students with access to diverse and equal educational opportunities.

In the late 1950s and early 1960s, school assignments were made strictly on the basis of neighborhood.3 In 1962, Garfield High School reported 64 percent minority enrollment and it accommodated 75 percent of all African-American students. Meanwhile, the eight high schools serving other major areas of the city remained more than 95 percent white.

The District responded to this imbalance, and racial tensions in the de facto segregated schools, in various ways. In the early 1960s, the District first experimented with small-scale exchange programs in which handfuls of students switched high schools for five-week periods. In 1963, expanding on this concept, the District implemented a "Voluntary Racial Transfer" program through which a student could transfer to any school with available space if the transfer would improve the racial balance at the receiving school. In the 1970s, the District increased its efforts again, this time adopting a desegregation plan in the middle schools that requested volunteers to transfer between minority- and majority-dominated neighborhood schools and called for mandatory transfers when the number of volunteers was insufficient, though this portion of the plan was never implemented. The District also took steps to desegregate Garfield High School by changing its educational program, improving its facilities and eliminating "special transfers" that had previously allowed white students to leave Garfield. Finally, for the 1977-78 school year, the District instituted a magnet-school program. According to the District's history:

While it appeared evident that the addition of magnet programs would not in itself desegregate the Seattle schools, there was supportive evidence that voluntary strategies, magnet and non-magnet, could be significant components of a more comprehensive desegregation plan.

History of Desegregation at 32.

By the 1977-78 school year, segregation had increased: Franklin was 78 percent minority, Rainier Beach 58 percent, Cleveland 76 percent and Garfield 65 percent. Other high schools ranged from 9 percent to 23 percent minority enrollment.

In the spring of 1977, the Seattle branch of the National Association for the Advancement of Colored People ("NAACP") filed a complaint with the United States Department of Education's Office of Civil Rights, alleging that Seattle's School Board had acted to further racial segregation in the city's schools. Several other organizations, principally the American Civil Liberties Union ("ACLU"), formally threatened to file additional actions if the District failed to adopt a mandatory desegregation plan. When the District agreed to develop such a plan, the Office of Civil Rights concomitantly agreed to delay its investigation, and the ACLU agreed to delay filing a lawsuit.

During the summer of 1977, the District and community representatives reviewed five model plans. Ultimately, the District

Page 1168

incorporated elements of each model into its final desegregation plan, adopted in December 1977 and known as the "Seattle Plan." The Seattle Plan divided the district into zones, within which majority-dominated elementary schools were paired with minority-dominated elementary schools to achieve desegregation. Mandatory high school assignments were linked to elementary school assignments, although various voluntary transfer options were available. With the Seattle Plan,

Seattle became the first major city to adopt a comprehensive desegregation program voluntarily without a court order. By doing so the District maintained local control over its desegregation plan and was able to adopt and implement a plan which in the eyes of the District best met the needs of Seattle students and the Seattle School District.

History of Desegregation at 36-37. Opponents of the Seattle Plan immediately passed a state initiative to block its implementation, but the Supreme Court ultimately declared the initiative unconstitutional. Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 470 (1982).

The Seattle Plan furthered the District's school desegregation goals, but its operation was unsatisfactory in other ways.4 In 1988, a decade after its implementation, the District abandoned the Seattle Plan and adopted a new plan that it referred to as "controlled choice." Under the controlled choice plan, schools were grouped into clusters that met state and district desegregation guidelines, and families were permitted to rank schools within the relevant cluster, increasing the predictability of assignments. Because of Seattle's housing patterns, the District's planners explained that "it was impossible to...

To continue reading