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					    Parents Involved in Community Schools v. Seattle
                             The History of Housing
       Although Seattle lacked the Jim Crow laws that legally enforced segregation

throughout the South, racial segregation was practiced throughout the city well into the

1960s. Stores, schools, restaurants, hotels, bars, barber shops, and even hospitals are

examples of the many places where racial segregation was in force in Seattle. Nowhere

was racial segregation more apparent in Seattle than where people were allowed to live.

African Americans, Asian Americans, and other minorities were shut out of all but a few

of city‟s neighborhoods.    The neighborhoods where minorities lived were almost

exclusively south of the Lake Washington shipping canal. This residential segregation

was initially achieved through restrictive racial covenants. Even after courts held that

racial restrictive covenants were legally unenforceable in 1948, segregationists ensured

that de facto segregation remained throughout the city. Even in the 1950s, the Realtors

Board of Ethics required that real estate agents “should never be instrumental in

introducing into a neighborhood… members of any race or nationality, or any individual

whose presence will clearly be detrimental to property values in that neighborhood.”

Well into the 1960s, police enforced informal “sundown” laws, where any black man

seen in a neighborhood north of the shipping canal (“white neighborhoods”) was to be

stopped and questioned. In 1964, an open housing law was proposed. The law, which

would have made residential racial discrimination illegal throughout the city, was

overwhelmingly rejected by a two to one voter margin.
       Although much progress has been made, many covenants still contain these racial

restrictions. In 2006 the Governor of Washington, Christine Gregoire signed into law

Senate Bill 6169 to rid neighborhoods governed by such covenants of the racial

restrictions. In addition, Senator Jeanne Kohl-Welles, recognizing that although the

language is neither legal nor enforceable, followed up by introducing a measure to

eliminate the “whites only” clauses present in many homeowner‟s agreements.

Ironically, the same measure was attempted by a group of residents who were unable to

collect the required signatures needed.



                                    De Facto Segregation

       Segregated schools were a direct result of the residential racial segregation in

Seattle. With nine “black” schools all concentrated in black neighborhoods, compared

with over 100 “white” schools throughout the rest of Seattle, the racial makeup of the

schools were predictably lopsided.        Garfield High School, located in a black

neighborhood, was 51% African American, compared to the city average of 5%. In

general, nonwhite schools received less funding and fewer resources from the district

than their white counterparts. Efforts to remedy segregation in public schools proved to

be at least as difficult as finding a remedy to residential segregation. A 1963 settlement

with the NAACP allowing students to voluntarily transfer from one school to another in

order to ease racial imbalances proved ineffective.

        In 1970, with the threat of legal action by civil rights groups looming, the Seattle

School Board adopted a limited busing plan to desegregate the district‟s middle schools.

The plan involved about 2,000 students but was initially delayed due to a lawsuit by an
anti-busing group. In 1977, the NAACP, ACLU, and Greater Church Council of Seattle

pushed for an expansion of the busing program and threatened to seek federal

intervention unless Seattle‟s school district took more aggressive measures to integrate

schools.   In response the school district became the first large city in America to

implement district wide busing. The district‟s plan called for 12,500 of the 54,000

students to be bussed to schools outside of their neighborhoods. Despite the initial

support bussing received, the district‟s plan was soon being placed under scrutiny from

all sides. White families who did not wish to enroll their children in an integrated school

system simply began removing their children from Seattle‟s public schools, and in many

cases left the city of Seattle all together for the suburbs. After the first year of bussing,

enrollment of white students dropped 12% and a five year review of the busing program

showed that only half of the mandatorily assigned students were actually showing up in

class. Civil rights groups began to stop supporting bussing as well, arguing that the plan

put too large a burden on those living in minority neighborhoods and the structure of the

busing plan allowed for too many “escape routes” for white students. When the Citizens

for Voluntary Integration Committee sponsored an anti-busing initiative, 61% of Seattle

voters approved it.    Although it was eventually declared unconstitutional by the U.S.

Supreme Court, the lack of public support for busing was evident. When asked about the

effectiveness of busing on improving the educational experience for minority students

David Moberly, superintendent of the Seattle school district from 1976-1981, said “Was

the plan successful educationally? No. I don't think it did anything to enhance the

academic achievement of minority students.” Busing was not completely phased out

throughout the district until 1999, but as early as 1988 “controlled choice” assignment
was beginning to replace busing as the Seattle school district‟s method of school

integration.

        The controlled choice program was devised as a friendlier alternative to busing.

The plan allowed families to choose from within a prescribed of schools, as long as their

choice allowed racial balance. When a popular school became oversubscribed with

potential students, a series of tiebreakers were used to determine which students will be

admitted. The first tiebreaker was whether a student already had a sibling enrolled in the

high school.     If the school‟s racial demographic deviated by more than a certain

percentage (around 40% white, 60% non-white), a racial tiebreaker was then used to

correct the imbalance. The program hoped to balance the racial disparities between the

district‟s undersubscribed schools (Chief Sealth, 68% non-white; Cleveland, 90% non-

white; Franklin, 80.2% non-white; Rainier Beach, 92% non-white; Ingraham, 70% non-

white: all but Ingraham are in south Seattle) and oversubscribed schools (Ballard, 37.5%

non-white; Roosevelt, 45.2% non-white; Nathan Hale, 39.2% non-white: all three schools

are in north Seattle).

        The controlled choice program affected far fewer students (300 students in 2000,

compared to the initial 2000 students affected by mandatory busing) than mandatory

busing, yet proved to be just as controversial. In 2000, Parents Involved in Community

Schools (PIICS), a non-profit group that describes themselves as “comprised of parents

from neighborhoods around the city whose children have been or will likely be denied

admission to the high schools of their choice because of their race,” sued the Seattle

school district; arguing that the racial tiebreaker of the controlled choice program violated

the Equal Protection Clause of the 14th Amendment, the Civil Rights Act of 1964, and
Initiative 200 (a state law prohibiting preferential treatment on the basis of race, age, or

gender). Some of PIICS‟s other activities included the creation of a new high school,

The Center School (27% non-white in 2006), and the introduction of an International

Baccalaureate program into undersubscribed Seattle high school, Ingraham (64% non-

white in 2006).



                                        Into the Courts

       In 1998, the citizens of Washington State passed by initiative the Washington

Civil Rights Act (Initiative 200). The Act, in effect, states that local school districts, may

not “discriminate against, or grant preferential treatment to, any individual or group on

the basis of race, sex, color, ethnicity, or national origin in the operation of ... public

education.” This Act, combined with claims that the Seattle School District‟s “open

choice” plan violated the Equal Protection Clause of the United States Constitution and

Title VI of the 1964 Civil Rights Act formed the basis for the suit brought by Parents

Involved in Community Schools against the Seattle School District. Filed in the Western

District of Washington‟s federal District Court, the complaint claimed that the use of the

racial tie-breaker violated the letter of both the state and federal Civil Rights Acts the

Equal Protection Clause of the Constitution.

       Both the school district and Parents group filed for summary judgment, and in

April of 2001, Judge Barbara Rothstein filed an order granting the school district‟s

motion.     In granting the district‟s motion, Judge Rothstein focused on the

constitutionality of enforcing the Civil Rights Act in invalidating the school district‟s

plan. On this point, Judge Rothstein stated unequivocally that “[b]ecause applying [the
Washington Civil Rights Act] to outlaw the Seattle School District's racial tiebreaker

would render the Act unconstitutional, and because both Washington and federal law

provide long-established and reasonable bases for a saving construction, the court holds

that [the Act] does not prohibit the district's continued use of the open choice policy's

integration tiebreaker.” Additionally, Judge Rothstein analyzed the use of the racial tie-

breaker with respect to the strict scrutiny standard set forth for evaluating Equal

Protection claims focusing on racial classification. In this analysis, Judge Rothstein

carefully examined the „compelling governmental interest‟ in achieving racial diversity in

Seattle area high schools and found that the School District‟s plan was „narrowly

tailored‟ to achieve this interest.

                                      The Ninth Circuit

        Following the District court defeat, Parent‟s Involved in Community Schools

immediately appealed to the Ninth Circuit Court of Appeals. In December of 2001 the

court heard oral arguments and subsequently filed their opinion April of 2002. The court

looked only at one question on appeal, if the District‟s plan violated the Washington Civil

Rights Act. Specifically, the court focused on the plain language meaning of words of

the Act. The court turned to the dictionary as well as to state and federal interpretations

of the terms „preferential‟ and „discriminate‟. Unfortunately, state case law was silent on

the meaning of these terms as used by the Act.

        Normally a question presented to the federal court on a state question that is

unsettled would be handled in one of two ways, first the federal court would attempt to

channel the reasoning of the state‟s Supreme Court, deciding the case exactly as the

Washington Supreme Court would.         The alternative to this would be to certify the
question and submit it to the Washington State Supreme Court for clarification. Due to

the fact that both sides wished to resolve the issue before the start of the 2003 school

year, neither party felt that the question should be certified and stated as much during oral

arguments. Judge O'Scannlain wrote for the three judge panel and held that the court

should avoid making federal constitutional decisions where state law could resolve an

issue, and that, as applied, the school district‟s racial tie-breaker violated the letter of the

Washington Civil Rights Act.

        The practical effect of the decision at the appeals level was the issuance of an

injunction against the school district preventing it from using its racial tie-breaker system.

The school district, however, was left with three options: appeal for a writ of certiorari

and attempt to try the case in front of the United States Supreme Court, file a motion with

the Ninth Circuit seeking an en banc rehearing, and finally filing a motion to request the

Ninth Circuit certify the question of interpreting the language of the Washington Civil

Rights Act to the Washington Supreme Court. The school district chose to go with the

third option. In June 2002 decision, the same three judge panel that had overturned the

District Court in April granted the motions by the school district and certified the

question and vacated their previous opinion pending state court clarification. Specifically

the federal court asked the following question, “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?”
       At the State Supreme Court, the school district met with much more success in

arguing their position on the effect of the Washington Civil Rights Act on the school

district‟s plan. In a split decision, the majority of the court found that the school district

did not „discriminate‟ or „grant preferential treatment‟ in a manner that was inconsistent

with the Act. The court reasoned that the Act was not intended to completely eliminate

the use of race as a factor in decision making. The court justified this by citing section

three of the act that recognized there were possible legal or governmental functions that

did not grant preferential treatment or discriminate, with the implication that race may

still be accounted for. The court ultimately answered that, despite the use of race as a

factor, the plan did not violate the Washington Civil Rights Act, if “it further[ed] a core

mission of public education; to make available an equal, uniform and enriching

educational environment to all students within the district.” In it‟s answer, however, the

Washington Supreme Court did not resolve the case, but rather clarified the proper

interpretation of Washington law. The next step was to return to the Ninth Circuit for

rehearing.

       In December of 2003, the same three-judge panel that had reversed the District

Court on the state law question, heard oral arguments concerning only the equal

protection clause claims. As the state law question was now moot, the panel, in a split

decision, again reversed the District Court, holding that the school districts plan was still

impermissible because it violated the United States Constitution. Again writing the

opinion for the majority, Judge O‟Scannlain held that while racial diversity in the

educational system was a compelling governmental interest, however, the school district

plan was not tailored narrowly enough to only protect that interest without violating the
Equal Protection clause. The opinion itself was not filed until the end of July, 2004. The

school district having now won on appeal for the state law question still found itself

subject to an injunction because of the federal claims. The school district was now down

to two options, appeal to the United States Supreme Court or file a motion for rehearing

en banc. The district went with the second option this time. This time the school district

went with the second option.

       The Ninth Circuit assembled and voted as a body to grant rehearing en banc to the

school district in February of 2005. It was now almost four years after Judge Rothstein

wrote the initial opinion and the latest action of the court was to vacate all prior rulings

by the three-judge panel pending the en banc decision. The court heard oral arguments in

June of 2005 and delivered its opinion in October of that year. The arguments were made

in front of Chief Judge Schroeder, and associate judges, Pregerson, Kozinski, Kleinfeld,

Hawkins, Fletcher, Fisher, Tallman, Rawlinson, Callahan and Bea. The opinion was

written by the Judge Fischer and joined by all but Kozinski who concurred and Bea,

Tallman, Callahan and Klienfeld who dissented. Interestingly, other than Tallman and

Koziniski, the judges voting pattern broke down along party lines with respect to the

presidents that appointed the judges. The opinion itself had five major holdings: “(1)

[the] school district had compelling interest in securing 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 did not simply replicate Seattle's segregated

housing patterns, (2) for purposes of determining whether district's plan was narrowly

tailored to meet its compelling interests, [the] district's fifteen percent plus or minus

variance was not [a] “quota”; (3) [the] district made good-faith effort[s] to consider
feasible race-neutral alternatives and permissibly rejected them in favor of system

involving sibling preference, [a] race-based tiebreaker and proximity preference; (4) [the]

tiebreaker imposed minimal burden[,] shared equally by all [the] district's students and

did not unduly harm members of any racial group; and (5) plan included periodic reviews

to determine whether racial preferences were still necessary to achieve student body

diversity.” In effect, the Ninth Circuit on second rehearing stated clearly that there was

no equal protection violation.

                        The United States Supreme Court

        Having lost at the final stage of the appeals level, Parents Involved in Community

Schools had no other option but to seek a writ of certiorari from the United States

Supreme Court. In June of 2006 certiorari was granted and the case was combined with

another school integration case from Jefferson County, Kentucky. Oral arguments were

scheduled for December of 2006. At this point, Parents Involved in Community Schools

and the Seattle School District both had powerful experienced litigators representing

them.

        Harrey Korrell, the attorney for the petition, Parents Involved in Community

Schools, is Partner at Seattle, WA office of Davis Wright Tremaine. His areas of practice

are in general litigation employment law and he has “extensive experience” in managing

large scale and high profile litigation including employment, commercial, civil rights, and

election cases in trial and appellate courts. He also served as Washington State Election

Counsel to Bush-Cheney „04, Inc., counsel to the Washington State Republican Party,

served the Rossi for Governor campaign, and served as Lead Trial Counsel in the 2004

gubernatorial election recount and contest litigation.
       Michael Madden, the attorney for the respondent Seattle School District, is a

shareholder and President of Bennett Bigelow & Leedom and has broad practice area, but

currently focuses on the defense of class actions, medical negligence, insurance disputes

and employment matters involving physicians and higher education faculty. Previously,

Madden worked for the Washington Attorney General‟s Office defending liability claims

against state agencies and officials. During a phone interview Madden stated that he was

involved in related cases in the past, such as the “Initiative 200” and a case involving

race-based admissions at the University of Washington and based on this experience the

Seattle School District General Counsel invited Madden aboard.



        Approximately six months after oral arguments, and a little over 6 years after the

initial opinion was filed, the Supreme Court in a 5-4 decision overturned the Ninth

Circuit and reversed and remanded the case back to District Court. The plurality opinion

was written by Chief Justice Roberts and joined by Justices Alito and Scalia with Justices

Thomas and Kennedy filing concurring opinions.         Justice Stevens wrote the dissent.

Mirroring to some extent the Ninth Circuit decision, the voting at the Supreme Court

level broke down exactly along commonly percieved ideological lines, with the

conservative portion of the bench finding equal protection violations and the liberal

portion finding compelling governmental interest and a narrowly tailored solution. In his

opinion, Chief Justice Roberts held three things; first that the parents had standing to

continue the suit despite the fact that some children were not the high school level yet and

thus not affected, second that, “[t]he allegedly compelling interest of diversity in higher

education could not justify district[‟s] use of racial classifications in student assignment
plans, and finally that the “district[] failed to show that use of racial classifications in

their student assignment plans was necessary to achieve their stated goal of racial

diversity.” The case is currently in District court awaiting a hearing on if there is a relief

available to the Parents‟ group now that they have prevailed legally.

                                    Issues and Aftermath

       During the six years the case was tried, community groups and social

organizations submitted Amicus Curia Briefs on behalf of both the petitioner and the

respondent. Groups such as the NAACP and the ACLU became involved early in the

case according the respondent‟s attorney Michael Madden. In addition to submitting a

brief, the ACLU worked with the school board during the earlier case proceedings to

attempt to come up with a better assignment plan for the district. The NAACP however

was more involved with the Louisville case due to the court order enjoining the use of the

racial balancing plan. PIICS President, Kathleen Brose, did not identify any specific

community groups that were particularly key to the their “victory” however, the Pacific

Legal Foundation submitted brief on behalf of the petitioner, and has a website focusing

on the case and has published a variety of information pertaining to the case and its

development.

       In an interview, PIICS stated that biggest issue the organization faced in the case

was raising money. It is fitting, therefore, that now that the case is remanded to the

district court, the only issue remaining is whether the Parent‟s Involved in Community

Schools organization is entitled to any relief. According to Michael Madden, if relief is

due to an injury found by the court, then the petitioner‟s attorneys are entitled to fees.

However, if like the Jefferson County case it is determined that no relief is necessary, the
court will not the Seattle School District require fees will not be required. When asked

the School District‟s position on paying fees, Madden simply stated “they are not going

to pay them”.

        While both litigants are aware that schools in the district have a geographic and

economic reality feeding their problems, these groups are taking different approaches to

creating equal access. Ms. Brose of PIICS stated that the only intentional racism she

observed was that against white children unable to attend their school of choice due to the

racial-breaker. While she acknowledges that there are issues of race and poverty, she

believes that as minority groups move higher economically, the tensions among races

will lessen. PIICS position is that the assignment plans are reversed racism and

unnecessary barriers to their children‟s education.         The Seattle School District

acknowledges that there are serious inequities found between the northern and southern

schools. These inequities, rooted in segregated housing practices, are what the school

board has attempted to address with the racial tie-breaker.        According to Madden

integration plans have been in utilized since the 1960‟s and the school assignment plan

was merely another effort at creating equal access. As a result of the Supreme Court‟s

decision the School Board must now find other ways of making equally desirable schools

accessible to all students.

                                        Post Decision

        As of September 19, 2007 the Seattle Public School District Superintendent

released an update to the school board as well as a student assignment plan update which

outlines a strategy for how the new plan will be developed with community output. This

includes an initiative to improve schools in the southern Seattle region. The issue of
public transportation is also set out as a priority in order to ensure the most students

access to all public schools. Finally in an effort to foster diversity, open choice seats and

the extension of school boundaries are considered in the school boards plan. To track the

effects of the new plan an impact analysis is also proposed to show the effect of the new

assignment plan on enrollment and the attempt at extending boundaries allowing more

students access to schools in their vicinity.

       The Student Assignment update dated August 23, 2007 states that an emphasis is

being placed on the development of The Southeast Education Initiative, a program aimed

at providing much needed District-level intervention in support of the efforts of selected

secondary schools in southeast Seattle to enhance the range of quality programs and

instruction that they offer to students. In the School Board‟s own words, “this work

cannot wait” and resources have been allocated for the 2007-08 school year, including

funds to support planning efforts by each school and community.

       Meanwhile, planning and community input continues and the Board plans to

move forward carefully, and gives no definite timeframe for when a new comprehensive

plan will be implemented, however June 2008 is target for introducing the new plan to

the school board.      For the 2008-2009 school year, there are no changes in school

assignments planned other than the elimination of the racial tie-breaker and a phased

implementation is planned so as to not upset students current assignments. In an effort to

keep siblings in the same school and minimize the number of schools families have to

interact with, the sibling tie-breaker will remain as the first tie-breaker in assigning

students to schools.
                                      Works Cited

Parents Involved in Community Schools v. Seattle School Dist. No. 1, 137 F.Supp.2d
1224 (W.D.Wash. Apr 06, 2001)

Parents Involved in Community Schools v. Seattle School Dist., No. 1, 285 F.3d 1236,
(9th Cir., 2002)

Parents Involved In Community Schools v. Seattle School Dist., No. 1, 294 F.3d 1084,
(9th Cir., 2002)

Parents Involved in Community Schools v. Seattle School Dist. No. 1, 294 F.3d 1085, (9th
Cir., 2002)

Parents Involved in Community Schools v. Seattle School Dist., No. 1, 149 Wash.2d 660,
(2003)

Parents Involved in Community Schools v. Seattle School Dist. No. 1, 377 F.3d 949, (9th
Cir., 2004)

Parents Involved in Community Schools v. Seattle School Dist. No. 1, 395 F.3d 1168,
(9th Cir., 2005)

Parents Involved in Community Schools v. Seattle School Dist. No. 1, 426 F.3d 1162, (9th
Cir.(Wash.) Oct 20, 2005)

Parents Involved in Community Schools v. Seattle School Dist. No. 1, 127 S.Ct. 2738,
(2007)

Parents Involved in Community Schools v. Seattle School Dist., No. 1, --- F.3d ----, 2007
WL 2379254, (9th Cir., Aug 22, 2007)

http://depts.washington.edu/civilr2/slides/segregation/segregation_files/frame.htm

http://www.historylink.org/essays/output.cfm?file_id=3351

http://www.historylink.org/essays/output.cfm?file_id=3939

http://www.oyez.org/cases/2000-2009/2006/2006_05_908/

http://docket.medill.northwestern.edu/archives/003697.php

http://www.seattleschools.org/area/m_schools/index.dxml

http://depts.washington.edu/civilr/covenants.htm
http://www.seattleschools.org/area/newassign/index.html

http://www.seattleschools.org/area/eso/story.dxml

http://www.dwt.com/lawdir/attorneys/KorrellHarry.cfm

www.Bbhealthlaw.com/legalteam/Michael.Madden.html

				
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