Posted on July 28, 2004

9th Circuit Strikes Diversity Program

Justin M. Norton, The Recorder,, Jul. 28

A divided three-judge panel of the 9th U.S. Circuit Court of Appeals on Tuesday struck down a Seattle-area school program that reassigned minority students ahead of other youths in an effort to combat the effects of a segregated housing market.

The 113-page decision, which prevents the district from using so-called “racial tiebreakers,” could have a widespread effect on schools and other institutions that pursue diversity programs.

“The issue here is not whether students have a right to attend the school of their choice, or one of significantly above-average quality. It is whether, having made available a choice-based system of public education, the district may use race to circumscribe parental choices in the way it has,” Judge Diarmuid O’Scannlain wrote, concluding that it cannot.

“Across-the-board wrongs do not, as the dissent reasons, make a right.”

In the decision, the court dissects the U.S. Supreme Court affirmative action decisions in Gratz v. Bollinger, 539 U.S. 244, and Grutter v. Bollinger, 539 U.S. 306. In those cases, the high court upheld the use of affirmative action programs, so long as they are narrowly tailored to achieve a compelling governmental interest.

Though a defeat, Tuesday’s ruling had a silver lining for affirmative action proponents, as the court held that Gratz and Grutter apply to high schools.

“We simply do not see how the government’s interest in providing for diverse interactions among 18-year-old high school seniors is substantially less compelling than ensuring such interactions among 18-year-old college freshmen,” O’Scannlain wrote.

But O’Scannlain added that Seattle’s tiebreaker system failed “virtually every” criterion established for racial preference programs — among them that race must not be the main criterion in admissions decisions.

“Taken alone, any of these shortcomings would doom the school district’s program,” O’Scannlain wrote. “Together, they reveal an unadulterated pursuit of racial proportionality that cannot possibly be squared with the demands of the Equal Protection Clause.”

He was joined by visiting Senior Judge Thomas Reavley of the 5th Circuit, which is considered more conservative than the 9th Circuit. Judge Susan Graber dissented.

In the tiebreaker system, race is a prominent factor considered when two students apply to a popular school that doesn’t have room to admit all students. Because of overcrowding at some schools, the city asks students to list a number of choices for schools. The school system then determines assignments based, in part, on race.

O’Scannlain suggested that certain affirmative action programs may still be acceptable in high schools.

Daniel Ritter, the attorney who argued the case for the parents, was unavailable for comment.

Sharon Browne, principal attorney for Sacramento, Calif.’s conservative Pacific Legal Foundation, said she viewed the ruling as an unqualified victory. The foundation had filed an amicus curiae brief on behalf of the parents of Seattle schoolchildren who claimed tie breaking amounted to racial discrimination.

“This [ruling] says you cannot use racial balancing in public education. Nothing is more disturbing than teaching our students that race matters,” Browne said, adding that the 1st Circuit will soon consider a similar racial-balancing program in Massachusetts public schools.

Browne added that she hopes the ruling will slow down school districts that began aggressively pursuing affirmative action programs after Gratz and Grutter.

“We know that schools are changing, but maybe this will make them pause what they are doing,” she said. Browne acknowledged that the court said the Michigan rulings applied to high schools, but added her belief that no existing diversity programs could meet the stringent requirements laid out in the 9th Circuit’s opinion.

“I don’t know of any program that I’ve examined that can meet those requirements — especially in K through 12 public education,” she said.

In dissent, Graber argued that diversity programs improve students’ education and experiences. She also hinted that the decision could lead to segregation. “Unless and until the Supreme Court says otherwise … I would heed its repeated statements that the voluntary integration of public schools, in response to specific conditions of de facto segregation and in furtherance of legitimate educational policies, can be a constitutionally permissible interest,” she wrote.

“I would hold that the district has a compelling interest in structuring its assignment policies to prevent a return to the era in which Seattle’s undisputedly segregated housing pattern was the exclusive determinant of school assignments to neighborhood schools,” she wrote.

Paul Lawrence of Seattle’s Preston Gates & Ellis, who argued the schools’ case for the ACLU, said he disagreed with the bulk of the decision, but found “parts of it helpful.”

“A school district that wants to promote the educational benefits of diversity can consider doing so [under the ruling]. . . . The court just rejected the particular way this school district tried to do it,” he said.

But Lawrence said the ruling “creates such a rigid criteria that it makes it impossible to diversify outside of a statewide lottery” to establish diversity programs. He said the school system could ask for an en banc rehearing in front of the 9th Circuit.

The Seattle district has not used “racial tiebreakers” since the suit was filed in 2000.