Parents Involved in Community v. Seattle School, 01-35450.

• Decision Date: 17 June 2002
• Docket Number: No. 01-35450.,01-35450.
• Parties: 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 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.
• Court: U.S. Court of Appeals — Ninth Circuit

294 F.3d 1085

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 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.

Filed June 17, 2002.

Before: REAVLEY,^* O'SCANNLAIN, and GRABER, Circuit Judges.

ORDER

We certify to the Washington Supreme Court the question set forth in Part III of this order.

Further proceedings in this court are stayed pending receipt of the answer to the certified question. This case is withdrawn from submission until further order of this court or an order declining to accept the certified question. If the Washington Supreme Court accepts the certified question, the parties shall file a joint report six months after date of acceptance and every six months thereafter, advising us of the status of the proceeding.

I

At oral argument before this court, the parties unanimously requested that we not certify this state law question to the Washington Supreme Court, but instead, decide the issue expediently so that school assignments for the 2002-03 school year could be made accordingly. We did so, and issued an opinion. See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 285 F.3d 1236 (9th Cir.2002); see also id. at 1243 n. 7. ("Neither party has suggested that we certify a question to the Washington Supreme Court. Indeed, in response to questions from the bench during oral argument, both parties urged us not to do so. Because we believe that the answer under Washington law is clear, we have not exercised our discretion to certify a question.").

After we rendered our decision, rehearing and rehearing en banc were sought. It has become clear that our court cannot provide a definitive answer before assignments must be made for the 2002-03 year, and therefore, we believe that our sole reason for not certifying this question to the Washington Supreme Court has dissolved. Moreover, we note that we may exercise our discretion to certify the question "upon [our] own motion." Wash. Rev. Code § 2.60.030(1). Indeed, even when we find the plain language of state law dispositive, see Parents Involved, 285 F.3d at 1243 n. 7, we have an obligation to consider whether novel state-law questions should be certified—and we have been admonished in the past for failing to do so. Arizonans for Official English v. Arizona, 520 U.S. 43, 62, 76-79, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). Consequently, after due consideration of the arguments raised in the petition for rehearing and the response thereto, we have decided that, in the present circumstances, certification is the most prudent course. Accordingly, we are filing today a separate order granting the petition for rehearing, withdrawing our prior opinion, and vacating the injunction issued under that opinion, see Parents Involved, 2002 WL 841345 (9th Cir. Apr. 26, 2002).

Pursuant to Washington Revised Code § 2.60.020, a panel of the United States Court of Appeals for the Ninth Circuit, before which this appeal is pending, certifies to the Washington Supreme Court a question of law concerning the proper interpretation of Washington Revised Code § 49.60.400. No published decision of either the Washington Supreme Court or the Washington appellate courts has yet construed this statute, and the answer to the certified question "is necessary ... to dispose of" this appeal. Wash. Rev.Code § 2.60.020. We respectfully request that the Washington Supreme Court answer the certified question presented below. Our phrasing of the issue is not meant to restrict the court's consideration of the case; "[w]e acknowledge that the Washington Supreme Court may, in its discretion, reformulate the question[]." Broad v. Mannesmann Anlagenbau AG, 196 F.3d 1075, 1076 (9th Cir.1999). If the Washington Supreme Court declines certification, we will resolve the issue according to our perception of Washington law.

II

Parents Involved in Community Schools (the "Parents"), a Washington nonprofit corporation, is deemed the petitioner in this request because the Parents appeal the district court's ruling on this issue. The caption of the case is:

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 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.

* * *

The names and addresses of counsel for the parties are as follows:

Daniel B. Ritter & Harry J.F. Korrell (argued), Davis Wright Tremaine, LLP, Seattle, WA, for Plaintiff-counter-defendant-Appellant.

Michael Madden & Carol Sue Janes, Bennett, Bigelow & Leedom, P.S., Seattle, WA; Mark S. Green, Office of the General Counsel, Seattle School District No. 1, Seattle, WA, for Defendants-counter-claimants-Appellees.

Sharon L. Browne, Pacific Legal Foundation, Sacramento, California; Russell C. Brooks, Pacific Legal Foundation, Bellevue, WA, for amici curiae American Civil Rights Institute, American Civil Rights Union, Center for Equal Opportunity, and Pacific Legal Foundation.

Paul J. Lawrence, Preston, Gates & Ellis LLP, Seattle, WA, for amicus curiae American Civil Liberties Union.

III

The question of law to be answered is:

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 (I-200), codified at Washington Revised Code § 49.60.400?

IV

The statement of facts is as follows:

Based on the parties' submissions, it appears that approximately 70% of the residents of Seattle, Washington are white while approximately 30% are non-white. This racial diversity is reflected in Seattle's public schools, where the percentages are more evenly balanced: the students are approximately 40% white and 60% non-white.

The racial distribution of the community is not, however, homogeneous. It appears that more white students live in the northern part of Seattle, and in areas close to the waterfront in all parts of the city, than in the southern part of the city. Specifically, approximately 66% of white students live north of downtown. In contrast, approximately 77% of non-white students live south of downtown—including 84% of all African-American students, 74% of all Asian students, and 65% of all Hispanic students.

A

Seattle School District Number 1 (the "School District"), which is charged with educating the children of this metropolis, operates ten public high schools: Ballard, Chief Sealth, Cleveland, Franklin, Garfield, Ingraham, Nathan Hale, Rainier Beach, Roosevelt, and West Seattle. Four of these high schools (Ballard, Ingraham, Nathan Hale, and Roosevelt) are located north of downtown Seattle; of the remaining six, five (Chief Sealth, Cleveland, Franklin, Garfield, and Rainier Beach) are located south of downtown, and one (West Seattle) is located directly west of downtown.

Seattle's public high schools vary widely in quality, as measured by such factors as standardized test scores, numbers of college preparatory and Advanced Placement (AP) courses offered, percentage of students taking AP courses and Scholastic Aptitude Tests (SATs), percentage of graduates who attend college, Seattle Times college-preparedness rankings, University of Washington rankings, and disciplinary statistics. Moreover, some of the schools offer programs or opportunities not offered in other schools.¹

The School District has never been segregated by law ("de jure" segregated). However, due to Seattle's racial diversity and its racially imbalanced housing patterns, if Seattle's children were simply assigned to the high schools nearest their homes, the high schools would become segregated in fact ("de facto" segregated). As part of its continuing effort to prevent de facto segregation and to promote racial diversity in its high schools, instead of assigning students to the high schools nearest their homes, the School District has adopted an open choice assignment plan, pursuant to which each student may choose to attend any of the ten high schools in the city, so long is there is room available in that school.

In its current incarnation, the School District's open choice plan provides for a multi-step assignment process. Under the plan, each student is first asked to list the high schools he would like to attend, in order of preference. If a student is not admitted to his first-choice school because it is full, the School District attempts to assign him to his second-choice school, and so on. If a student is not admitted to any of his chosen schools, he receives a mandatory assignment to a school with available space.

Not surprisingly, under this system, a significant problem arises when a school becomes "oversubscribed"—i.e., more students want to attend that school than there are spaces. For the academic year 2000-01, five of the ...