PICS v. Seattle School Dist. No. 1

Citation149 Wash.2d 660,72 P.3d 151
Decision Date26 June 2003
Docket NumberNo. 72712-1.,72712-1.
PartiesCertified from the United States Court of Appeals for the Ninth Circuit in 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.
CourtUnited States State Supreme Court of Washington

Davis Wright Tremaine, Daniel Ritter, Harry Korrell, Seattle, for Appellees.

Bennett Bigelow & Leedom, Michael Madden, Carol Janes, Mark Green, Seattle, for Appellant.

Preston Gates & Ellis, Paul Lawrence, Seattle, Amicus Curiae on behalf of American Civil Liberties Union.

Pacific Legal Foundation, Russell Brooks, Bellevue, Sharon Browne, Sacramento, CA, Amicus Curiae on behalf of Pacific Legal Foundation, Amicus Curiae on behalf of Center for Equal Opportunity, Amicus Curiae on behalf of American Civil Rights Institute.

Schroeter Goldmark & Bender, Jeffrey Robinson, Sandra Widlan, Seattle, Amicus Curiae on behalf of Urban League of Metropolitan Seattle.

CHAMBERS, J.

We are asked by the Ninth Circuit Court of Appeals to interpret RCW 49.60.400 to determine whether it prohibits all race-cognizant state government action or whether the act allows some race-cognizant state action, while limiting others. We are also invited to determine whether the Washington Constitution's unique treatment of education requires racial integration in schools, or merely permits integration absent legislation to the contrary. After examining Washington history, our constitution, and RCW 49.60.400, we conclude that the act prohibits some, but not all, race-cognizant government action. Affirmative action programs which advance a less qualified applicant over a more qualified applicant are now impermissible under Washington law. Programs which are racially neutral, such as the Seattle School District No. 1's open choice plan, are lawful.

Seattle School District No. 1 (School District) has 10 high schools. Because of racially segregating housing patterns, mandatory assignment to neighborhood schools would result in largely segregated schools. Because the School District believes that a racially diverse educational experience provides a superior education for all students, it has adopted a plan that allows students a measure of choice while attempting to ensure that schools do not become segregated. Because some schools are oversubscribed and not all students have their first choice of schools, the School District applies a series of tie breakers, one of which is specifically designed to promote racial diversity. This tie breaker only operates on schools that are more than 75 percent minority or less than 25 percent Caucasian, and operates only until the school is in closer balance.

We find that the School District's open choice plan does not conflict with RCW 49.60.400. Accordingly, we return this case to the federal court for further proceedings consistent with this opinion.

PROCEDURAL HISTORY

Seattle public high schools allow any student in the school district to attend any school. If there is room in the school, the student is admitted. Some schools are more popular than others. If more students seek admissions than there is space, the School District uses a series of "tie breakers" to allocate students to the schools. The second tie breaker is race, and is used to keep the oversubscribed schools from becoming segregated.

Appellant, Parents Involved in Community Schools (PICS), is a Washington nonprofit corporation formed by Seattle parents whose children have been or may be denied admission to their preferred high school because the school was oversubscribed and admitting them would increase racial imbalance. PICS challenges the "open choice" plan in federal court on both state and federal grounds.

The School District and its directors in their official capacity are the appellees. During the proceedings before the United States District Court for the Western District of Washington, PICS and the School District both moved for summary judgment. The federal district court granted the School District's motion holding that the open choice plan did not violate state or federal law. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 137 F.Supp.2d 1224, 1240 (W.D.Wash.2001)

(PICS I), overturned by 285 F.3d 1236 (9th Cir.2002) (PICS II), opinion withdrawn by 294 F.3d 1084 (9th Cir. 2002). Judge Rothstein reasoned that while RCW 49.60.400 was susceptible to the interpretation proposed by the parent's group, that construction rendered it unconstitutional under article IX of the Washington Constitution because it forbade positive efforts to provide a general and uniform education to all students.1 She found the act was also susceptible to a more limited interpretation that did not run afoul of the state constitution, and gave it that interpretation to avoid holding a Washington statute unconstitutional. Under that more limited interpretation, she upheld the open choice plan. See PICS I,

137 F.Supp.2d at 1227-28.

The United States Court of Appeals for the Ninth Circuit initially reversed. PICS II, 285 F.3d 1236. Both parties sought reconsideration. Realizing that the matter could not be finalized before the 2002-03 school assignments were made, the Ninth Circuit, on its own motion, withdrew its opinion, stayed further proceedings, and certified the state law questions to this court by an order dated June 17, 2002, 294 F.3d 1085. See Order at 1086. We accepted certification.

CERTIFIED QUESTIONS

The Ninth Circuit Court of Appeals has certified this question to us:

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?

Order at 1087. The Ninth Circuit suggested that we also consider several other questions before reaching a decision:

Should the term "preference" in I-200 be interpreted to have its ordinary lay meaning, in accordance with Washington cases holding that the average voter is the touchstone for the construction of an initiative, or are state law and/or federal law to be relevant in interpreting I-200? If state law is relevant, are California cases construing Proposition 209, the wording of which is identical to I-200, relevant?
Is the meaning of I-200 clear, or is the text ambiguous, making consideration of voter's pamphlet material relevant? If it is pertinent to the analysis, what factors should be used to evaluate this material?
Does article 9, section 1, of the Washington Constitution, or article 9, section 2, of the Washington Constitution, require that measures be taken to mitigate de facto segregation, or only permit it? In any event, is the Seattle School District's use of the racial tiebreaker required, permitted, or otherwise under the Washington Constitution and I-200?

Order at 1091-92.

FACTS
A. SEATTLE DEMOGRAPHICS

Seattle is a diverse community. Approximately 70 percent of residents are Caucasian, and 30 percent people of color. See Order at 1088. Seattle public school students breakdown nearly inversely, with approximately 40 percent Caucasian and 60 percent people of color. Id.

While as a whole Seattle is a diverse community, racial distribution is not homogenous. About 66 percent of all Caucasian students live on the waterfront or north of downtown and 84 percent of all African American students live south of the Seattle downtown area. Were geography alone used to determine school assignment, the different schools in the district would be racially segregated. Order at 1088;2 see also PICS I, 137 F.Supp.2d at 1237.

B. SEATTLE OPEN CHOICE PLAN

Seattle operates 10 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 down town." Order at 1088. These high schools vary widely in desirability. Three of the northern schools (Ballard, Nathan Hale, and Roosevelt) and two of the southern schools (Garfield and Franklin) are highly desirable and oversubscribed. The remaining schools are less desirable, and far fewer students seek to attend them.

The Seattle schools have never been segregated as a matter of law. However, merely local assignments would result in segregated schools. To avoid this de facto segregation in high schools, the School District adopted an open choice assignment plan. Instead of assigning students to their local schools, the School District allows students to attend any school in the district. If the school is undersubscribed, the student is admitted. However, the quality and reputation of the various schools weighs so heavily on student choice that 82 percent rank the same five schools as their first choice, leaving only 18 percent ranking the other five schools as their first choice. The School District established four "tiebreakers" to allocate students between the oversubscribed schools.3

First, the sibling tie breaker....

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