- The Washington Times - Monday, April 22, 2002

A public school district policy in Seattle that uses race as a factor in determining high school admissions is illegal, a federal appeals court has ruled.
The three-judge panel of the 9th Circuit Court of Appeals found the district's "open choice" assignment policy offers no choice for white students who want to transfer out or into the schools of their choice.
The judges based their decision on a state law, passed by voters in 1998, that ended race- and sex-based preferences in government employment and contracting and public education.
"The school district seeks to ensure the racial diversity in each of its high schools, so that each school district student can obtain the benefits of attending a racially and ethnically diverse school," the judges wrote Wednesday in a 40-page verdict.
"[But] Washingtonians have collectively decided that, even though racial diversity may well benefit the school district's public school students, the price of that diversity that some students are told that they may not attend their high school of choice simply because their skin is the wrong color is too high."
Attorneys with the California-based Pacific Legal Foundation (PLF) who represented the parents in their lawsuit against the school district said the ruling told the state "to quit making race part of the equation."
"The voters of California and Washington have spoken loudly to end racially driven programs and policies like those used by the Seattle school district," said Sharon Browne, a lawyer with PLF. "I am heartened that the court saw the issues clearly and returned a victory for the equality of all citizens."
School officials have asked a full panel of appeals court judges to review the decision. They said in a written statement they disagree with the ruling because they believe students thrive in ethnically diverse schools. Meanwhile, school officials have already authorized district staff members to process student assignments for the 2002-2003 school year, for all grades, without the use of the race-based tiebreaker.
"It is our job to educate all students to the best of our ability, and we believe diversity has enormous educational value," said school Superintendent Joseph Olchefske in the statement. "Learning in a diverse environment prepares students to live and succeed in a global economy and to accept and celebrate the differences among us."
The Seattle school district adopted its "open choice" policy in 1998. The policy allows the district to use "tiebreakers" when a school is full to determine which students will be admitted. The first tiebreaker is whether a student has a sibling already at the school. The second tiebreaker is race. If a school has a large number of white students already attending, minorities are given preference. If a school is largely nonwhite, white students are admitted first.
The same issue has come up in California, where a state appeals court is currently reviewing a similar policy. A parent from Huntington Beach, Calif., sued the local school district for enforcing a "racial balancing" policy, which allows students to transfer to any school in the district if there is room and if the majority of students at the school from which they are transferring are white.
In that case, if the white population drops to a level where the minority population becomes a majority, white students are denied transfers, but minority students are still allowed to switch schools. The policy is an apparent violation of state Proposition 209, the 1996 ballot initiative that banned consideration of race and ethnicity in public education or government jobs.
Miss Browne said the ruling in Seattle sets a precedent for the Huntington Beach case. "These judges just gave their colleagues on the California appellate court a roadmap to ruling that Huntington Beach's racial-balancing policy is unconstitutional under Proposition 209," Miss Browne said.

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