Parents Involved In Community Schools v. Seattle School Dist. No. 1

1. Parents Involved In Community Schools v. Seattle School Dist. No. 1

2. No Jim Crow, but… • Discrimination was technically illegal. http://depts.washington.edu/civilr2/slides/segregation/segregation_files/frame.htm

3. No Jim Crow, but… • Asian-Americans, African-Americans • Stores, restaurants, hotels, bars, hospitals…

4. Residential Segregation • Discrimination technically illegal, but… • Terror Tactics • Racial Covenants until 1948 http://depts.washington.edu/civilr2/slides/segregation/segregation_files/frame.htm

5. Residential Segregation • Greenlake neighborhood: “No person or persons ofAsiatic, African, or Negro blood, lineage or extraction shall be permitted to occupy a portion of said property or any building thereon except a domestic servant or servants who may actually and in good faith be employed by white occupants of such premises” • Laurelhurst neighborhood: “No person other than one of the White Race shall ever be permitted to occupy any portion of any lot in said plot or any building at any time thereon, except a domestic servant actually employed by a white occupant of such building” • Broadmoor neighborhood: “No part of said property hereby conveyed shall ever be used or occupied by any Hebrew or by any person of the Ethiopian, Malay, or Asiatic race …excepting only employees in domestic service…” http://depts.washington.edu/civilr2/slides/segregation/segregation_files/frame.htm

6. Residential Segregation • Realtor’s Board of Ethics • “Sundown Laws” • 1964 Open Housing Law • 2:1 Rejection http://depts.washington.edu/civilr2/slides/segregation/segregation_files/frame.htm

7. Residential Segregation 1960 http://depts.washington.edu/civilr/segregation_maps.htm

8. Residential Segregation 1980 2000 http://depts.washington.edu/civilr/segregation_maps.htm

9. Residential Segregation 1960 2000 http://depts.washington.edu/civilr/segregation_maps.htm

10. Residential Segregation 1960 http://depts.washington.edu/civilr/segregation_maps.htm

11. Residential Segregation 1980 2000 http://depts.washington.edu/civilr/segregation_maps.htm

12. School Segregation • Charles Johnson • 9 “black schools” v. 100 “white” schools • Student Population in Seattle: 5% black • Garfield High School: 51% black http://depts.washington.edu/civilr2/slides/segregation/segregation_files/frame.htm

13. School Segregation • NAACP, ACLU, Greater Church Council of Seattle • 1963 voluntarily transfer plan

14. School Segregation • 1970 – Limited Busing • 2000 students • Initially delayed • 1977 – District Wide Busing • 12000 students • 1st large city to implement district wide busing

15. School Segregation • Busing comes under fire. • From all sides. • White enrollment drops 12% • 50% of mandatory assignment students do not attend. • Citizens for Voluntary Integration Committee • 61% support for anti-busing initiative • Declared unconstitutional

16. School Segregation • Busing ends in 1999 • “Controlled choice” introduced 1988 • Series of tiebreakers: • Siblings • Race if school declared imbalanced. • Lottery • 300 students (in 2000)

17. School Segregation • Undersubscribed (% non-white) • Chief Sealth - 68% • Cleveland – 90% • Franklin – 80.2% • Rainier Beach – 92% • Ingraham – 70%

18. School Segregation • Oversubscribed (% non-white) • Ballard – 37.5% • Roosevelt – 45.2% • Nathan Hale – 39.2%

19. School Segregation • 2000 – Parents Involved in Community Schools sues Seattle School District • Violation of Equal Protection Clause, Civil Rights Act of 1964, Initiative 200 • Seattle school board suspends controlled choice program

20. Parents Involved In Community Schools • Non-profit • “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” • Center School - 27% non-white in 2006 • Magnet Program introduced in Ingraham High School

21. 2006 (% non-white) • Chief Sealth - 75% (+7) • Cleveland – 93% (+3) • Franklin – 91% (+10.8) • Rainier Beach – 95% (+3) • Ingraham – 64% (-6) • Ballard – 37% (-0.5) • Roosevelt – 42% (-3.2) • Nathan Hale – 38% (-1.2) http://www.seattleschools.org/area/m_schools/index.dxml

22. Washington State Supreme Court >>>

23. Group of parents brought action against school district, challenging constitutionality of its “open choice” assignment plan, which used a racial integration tiebreaker. Upon cross-motions for summary judgment, the District Court, Rothstein, J., held that: • assignment plan did not grant a “preference” as used in the Washington Constitution and defined in state and federal law, and therefore did not violate Washington Civil Rights Act, and • use of race in open choice policy tiebreaker served a compelling government interest and was narrowly tailored to do so , and therefore assignment plan did not violate equal protection clause. School District’s motion for summary judgment granted.

24. The Parent’s appealed the District Court decision. The Court of Appeals, O'Scannlain, Circuit Judge, held that the racial integration tiebreaker violated provision of Washington Civil Rights Act prohibiting a grant of preferential treatment in public education on the basis of race. The District Court’s decision is reversed.

25. The School District sought a withdrawal of the Appeals Court decision and a rehearing. “In light of the important and heretofore undecided state-law issues this case presents, we are of the opinion that “it is necessary to ascertain the local law of [Washington] in order to dispose of [this case] and the local law has not been clearly determined....” Wash. Rev.Code § 2.60.020. “[M]indful that ‘[c]ertification saves time, energy, and resources and helps build a cooperative judicial federalism,’ ” we have decided to certify to the Supreme Court of Washington that “a question of Washington law is involved in this case which may determine the cause and as to which there is no controlling precedent in the decisions of the Washington Supreme Court.” The petition for rehearing is granted.

26. Prior to rehearing, the Appeals Court certified a question to the Washington State Supreme Court. The Court of Appeals, held that where no published decision of either the Washington Supreme Court or the Washington appellate courts had yet construed the statute at issue, and the answer to the certified question was necessary to dispose of the appeal, a question would be certified to Washington Supreme Court as to whether use of a racial tiebreaker to determine high school assignments discriminated against, or granted 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 the statute. Question certified.

27. Back to the Appeals Court >>>

28. On acceptance of jurisdiction, the Washington Supreme Court, Chambers, J., held that the school district's “open choice” assignment plan does not 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 Washington's discrimination statute. Question answered.

29. The Supreme Court of The United States>>>

30. Following the answer of the certified question the Court of Appeals, • O'Scannlain, Circuit Judge, held that: • racial diversity in education was compelling interest, but • using race as tiebreaker was not narrowly tailored to further such • interest. Reversed and remanded with instructions to issue injunction.

31. The School District sought an en banc rehearing. Upon the vote of a majority of nonrecused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court. Rehearing granted.

32. On rehearing en banc, the Court of Appeals, Fisher, Circuit Judge, held that: (1) 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, district's fifteen percent plus or minus variance was not “quota”; (3) district made good-faith effort to consider feasible race-neutral alternatives and permissibly rejected them in favor of system involving sibling preference, race-based tiebreaker and proximity preference; (4) tiebreaker imposed minimal burden shared equally by all 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. The District Court decision is again affirmed. The Parent’s appeal and file for certiorari, it is granted.

34. The Supreme Court, Chief Justice Roberts, held that: (1) parents had standing; (2) allegedly compelling interest of diversity in higher education could not justify districts' use of racial classifications in student assignment plans, abrogating Comfort v. Lynn School Comm., 418 F.3d 1; and (3) districts failed to show that use of racial classifications in their student assignment plans was necessary to achieve their stated goal of racial diversity. The Appeals Court decision is reversed and the case is remanded.

35. On remand the Appeals Court stated: “This case was remanded to us from the United States Supreme Court. See Parents Involved in Community Schools v. Seattle School District No. 1, ---U.S. ----, 127 S.Ct. 2738, --- L.Ed.2d ---- (2007). In light of the Supreme Court's decision, we VACATE our opinion in Parents Involved in Community Schools v. Seattle School Dist. No. 1, 426 F.3d 1162 (9th Cir.2005) (en banc), and REMAND to the district court for further proceedings.” The case is still pending in the district court.

36. Current status of case • Awaiting district court date to determine whether there was imminent injury under the equal protection clause • If injury found, the court will likely award Petitioners court costs • Davis Wright Tremaine seeking $1.8 millions in attorney’s fees • School Board spent over $400,000 defending the case • According to Attorney Madden, the school board is “not paying fees”

37. Racial-Balancingfor equal access or diversity? • School Board says: • racial tie-breaker an effort to make “desirable” schools accessible to all students in a school district in which schools not equal and desirable schools located in predominately white neighborhoods • PIICS says: • schools were already diverse without the racial tie-breaker. • The racial balancing effort did not, in Seattle’s case, remedy De Jure Segregation • Racial tie-breaker did not produce significant enough results to justify its use.

38. Which Side Got it Right? • The Supreme Court’s 5-4 decision ran along clear political lines • Roberts: • "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," said. • Concurring with Roberts decision was Scalia, Kennedy, Thomas, and Alito • Breyer: • "To invalidate the plans under review is to threaten the promise of Brown," Breyer said. • Dissenting was Breyer, Stevens, Ginsburg, Souter

39. Supreme Court Opinions Highlights Thomas • Kennedy • Stevens • Breyer

40. Parent Involved Community Schools • Who comprises the group? • "When the school district made this assignment they didn't look at the academic needs of these kids. They didn't look at the social needs of these kids. It's like they had no value except for their skin color," she said. "The thing that really bugs me the most about it is that they teach our kids in the schools that discrimination is wrong. You can't have it both ways. You just can't.“ • Interview – expressed sincere concern for child’s right to attend school of choice and leaves socio-economic issues to work themselves out. • Has created two magnate schools www.justicetalking.org KEN LAMBERT / THE SEATTLE TIMES

41. Attorney for the Petitioner • Partner at Davis Wright Tremaine, large firm of over 100 lawyers with nationwide and international offices • General litigation and employment law, with “extensive experience managing large-scale and high profile litigation” • served Washington State Election Counsel to Bush-Cheney “04, Inc. the Washington State Republican Party, the Rossi for Governor campaign, and served as Lead Trial Counsel in the 2004 gubernatorial election recount and contest litigation. • Unavailable for interview- (PIICS president did not indicate how he was selected to represent the group) Harry Korrell

42. Attorney for Respondent • Shareholder/president of Bennett, Bigelow and Leedom, a small firm of approx. 20 lawyers • Has a broad practice area, currently focuses on the defense of class actions, medical negligence, insurance disputes and employment matters involving physicians and higher education faculty • In the past involved in related cases, such as Smith v. University of Washington 392 F.3d 367 (9th Cir. 2004), a case involving race-based admissions at the University of Washington which was later dropped due to the adoption of state law I-200 (Initiative 200) banning affirmative action • Recruited by Seattle School Board General Counsel Michael Madden

43. Seattle School Board • Madden: • “The Supreme Court failed to understand that Seattle has been using integration methods since the 60’s but especially during the 70’s. This assignment plan was a product of many years, it was not a naturally occurring phenomenon. The racial tiebreaker (first implemented 1998) was up for discussion each year for the School Board as to whether or not it needed to continue. It is possible that the School Board would have decided to put an end to the racial tiebreaker around 2002 when it was last used”

44. Seattle School Board Plan • School stopped using tie-breaker as of 2001-2002 school year • Newly elected School Superintendent tabled the plan for further review and Board will continue working on new assignment plan • No immediate changes in school assignments • School board will not reinstitute use of racial tie breaker, but will continue to use sibling attendance as the first tie-breaker • June 2008 is the scheduled introduction of the new assignment plan to the board SSD website

45. 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. • “this work cannot wait” - resources allocated for the 2007-08 school year, including funds to support planning efforts by each school and community. Madden interview: • When asked what the School District’s solution to remedying this problem without using the racial tie-breaker in the assignment plans for integration “The District is implementing a plan to upgrade south end schools which include Cleveland and Ranier Beach which are currently contain 90 percent students of color. However, even after improving the south end schools the students from the North are not likely to be knocking the doors down to get in”

46. Transportation • Newly elected Superintendent making efficient transportation a priority • Plan includes “completing the phase-in of all high schools to Metro transportation” photo by Sonia J. Stamm

47. Questions • What is Public Interest? • Does PIICS represent the public or an interest group? • Do the efforts of the law firm to collect fees for a case initially treated as pro bono effect its public interest status? • De Facto Segregation – is there a legal remedy? • According to Roberts and Thomas there is no legal remedy for De Facto segregation • Who should take on the responsibility for remedying past discriminatory practices (housing, employment, education, etc) that are not the result of law, but of social practice? • What is the shelf life of a legal remedy such as the integration plan in Jefferson County? Will those patterns return? • Where there are systemic problems, is it best to try to address the difficult issues (such as race discrimination) rather than racial balancing as a temporary fix?

48. 9th circuit decision split • Brown v. Board of Education 1954 • Miliken v. Bradley 1974 • Bakke v. Regents Univ. of Cal. 1978 • Grutter v. Bollinger 2003 • Gratz v. Bollinger 2003