October 20, 2005

Schools can use race in choosing students – court

By Adam Tanner

SAN FRANCISCO (Reuters) - Public schools can use race as a
consideration to help balance the composition of public high
schools, a U.S. appeals court ruled on Thursday.

In a 7-4 decision, an 11-judge en banc panel of the U.S.
9th Circuit Court of Appeals overturned a 2004 three-judge
panel ruling on the controversial and long-debated issue.

The judges were considering whether race is a permissible
factor in deciding which students will be admitted to
oversubscribed high schools in Seattle, Washington.

"We conclude that the district has a compelling interest in
securing the 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 do not simply replicate Seattle's segregated
housing patterns," Judge Raymond Fisher wrote for the majority.

Seattle, where about 60 percent of public school students
are nonwhite and 40 percent white, lets pupils state their
preferences from among the 10 high schools.

Since some schools are more popular and are oversubscribed,
the process uses a "tiebreaker" system. At the time of the
lawsuit, race was used as one of the tiebreaker criteria in an
effort to balance school racial makeup.

Some parents objected in 2000 and kicked off what has
become a long legal battle. In 2002, the 9th Circuit reversed a
lower court decision that upheld the law and barred the use of
the tiebreaker, but then withdrew its decision for further
review. In 2004, a three-judge panel also barred the tiebreaker

The Thursday ruling swung back in favor of the lower
court's earlier decision.

"It is true that for some students their first choice of
school, based on geographical proximity, will be denied because
other students' choices are granted in order to advance the
overall interest in maintaining racially diverse school
enrollments," Fisher wrote for the majority.

But "the district's compelling interest is to avoid the
harms of racial isolation for all students in the Seattle
school district."

Four out of the 11 judges dissented.

"The district's use of the racial tiebreaker to achieve
racial balance in its high schools infringes upon each
student's right to equal protection and tramples upon the
unique and valuable nature of each individual," Judge Carlos
Bea wrote for the dissenters.

"Even if well-intentioned, the district's use of racial
classifications in such a stark and compulsory fashion risks
perpetuating the same racial divisions which have plagued this
country since its founding."