Parents Involved in Community Schools v. Seattle School District No. 1*

Background

In 2003, the Supreme Court decided two cases—Grutter v. Bollinger, 539 U.S. 306 (2003) and Gratz v. Bollinger, 539 U.S. 244 (2003)—both of which involved affirmative action in higher education admissions. Both Grutter and Gratz applied a strict scrutiny analysis and affirmed that achieving a diverse student body is a compelling state interest in higher education. See Grutter, 539 U.S. at 329; Gratz, 539 U.S. at 268–69. This interest, the Court said, can be achieved by considering the student overall, not just his or her race, and the contribution he or she can make to the school’s diversity. More specifically, the Court stated that race could be used as a “plus,” but not in such a way that isolates the applicant from the pool of those being considered. See Grutter, 539 U.S. at 334; Gratz, 539 U.S. at 270–71. Grutter emphasized that admitting minority students for the purpose of achieving racial balance, i.e., using a quota for this purpose, is unlawful. See Grutter 539 U.S. at 330.

PICS argues, however, that the Seattle School District is doing just that—employing racial balancing for the sole purpose of achieving racial diversity in its individual schools. See Brief for Petitioner at 25–26. PICS goes on to argue that because racial balance is not a compelling state interest, the plan is therefore automatically unconstitutional. See Brief for Petitioner at 21. PICS also argues that the lower courts neglected to apply the correct strict scrutiny standard and instead gave undo deference to the school board. See Brief for Petitioner at 46–47. The School District, however, argues that the plan was narrowly tailored to achieve the compelling interests of promoting diversity, eliminating harms of racial isolation, and providing equal access to popular schools. See Brief for Respondent at 13. The District further argues that the plan passes muster under the strictest scrutiny. See Brief for Respondent at 13.

In this case, the Ninth Circuit held that the School District had a compelling state interest in achieving racial and ethnic diversity in its individual schools. See Parents Involved in Community Schools v. Seattle School District No. 1, 426 F. 3d 1162, 1177 (9th Cir. 2005). If the Supreme Court affirms this holding, it will be a departure from that in Gratz and Grutter which specified diversity as a compelling state interest and emphasized the importance of considering race as only one factor in a holistic review of an applicant’s potential contribution to the diversity of the school. Grutter at 336–37; Gratz, 539 U.S. at 270–71. By recognizing racial diversity as a compelling state interest, the Supreme Court will give public school districts nationwide the ability to make decisions about whether or not to admit a student based on the isolated factor of his or her race. See Brief for Petitioner at 44. This, in turn, has consequences of its own.

Impact of a Decision in Favor of Seattle School District

First, in an open choice district like that in Seattle, using race as an isolated factor for admission may deny some students the opportunity to attend the school of their choice, thereby burdening those families affected. See Brief for United States as Amicus Curiae Brief for Petitioners at 27. While diversity may lend to a robust education, parents and students have their own opinions on what factors promote the best education possible. These include the types of activities or programs offered, the teachers, and the school’s location. Limiting those options because of race may therefore be viewed as problematic for both parents and students. See Brief for Petitioner at 45.

In addition, a decision in the District’s favor will allow public schools to implement a wide range of programs designed to further the interest of racial diversity. See Brief for Petitioner at 35. It is possible that schools will be able to extend these race-conscious programs to school sports teams, club memberships, classroom assignments, and so on. The broad interest in racial diversity in education generally could potentially filter through all facets of the school, and even into elementary education. See Reply Brief at 3. However, while this is an important potential consequence, it is also important to note that its relevance is dependent upon the Court’s reasons for deeming racial diversity a compelling state interest, should it choose to do so.

More broadly, however, allowing racial diversity or balance as a compelling state interest, even if confined to secondary education, calls into question the Equal

Protection jurisprudence of this Court and the notion of a color-blind Constitution that this country has aspired for. See Brief for Petitioner at 25–26. In Regents of the University of California v. Bakke, 438 U.S. 265 (1978), relied on by the Court in Gratz, Justice Powell, in a plurality opinion, stated that “preferring members of one group for no reasons other than race or ethnic origin is discrimination for its own sake,” and therefore unlawful. See Brief for Petitioner at 26. Any use of race to distinguish one person from another threatens to stigmatize individuals and incite hostility. See Brief of the Asian American Legal Foundation as Amicus Curiae in Support of Petitioners at 5. An adoption by the court of a rule that has such connotations as authorizing discrimination of young people will surely question prior decisions holding the opposite and spur related litigation in years to come.

Consequences of a PICS Victory

A victory for PICS, on the other hand, will indicate that equal protection rights are applicable to citizens of all ages and affirm the notion that race can not be an exclusive criterion of classification. This will surely, however, restrict school districts’ efforts to achieve diversity and the benefits that arguably come with it. Schools argue that a diverse environment teaches students tolerance and respect, and the exposure to diverse viewpoints enhances education and dispels stereotypes. See Brief for Respondent at 27. By finding the School District’s plan unconstitutional, districts will be limited in their ability to provide such benefits.

In addition, a ruling in PICS’s favor will restrict the ability of school districts to combat “de facto” segregation. See Brief for Respondent at 31–32. Cities around the country are often segregated based on race with certain racial or ethnic groups concentrated in particular areas, possibly as a result of poverty or immigration. See Brief Amicus Curiae of the Black Women’s Lawyers Association of Greater Chicago, Inc. in Support of Respondents at 16. Because students often attend schools closest to their homes, the result is racially segregated schools. Id. This sometimes leads to a disparity in resources and academic achievement between school districts. By limiting the School Districts’ use of race, it will be more difficult for it to cure these defects. Id. at 17.

However, if the Court decides that Grutter and Gratz apply in the secondary education context, school districts will still be able to use race as a factor, but in a different way than it is used in the Seattle School District’s plan: race could only be used as a “plus” in the evaluation of the applicant’s potential to contribute to the overall diversity of the school. See Grutter, 539 U.S. at 334. So long as the plan is narrowly tailored, meaning that it uses the least restrictive means to obtain the benefits that flow from diversity and implements a plan that does not result in an impermissible quota, school districts can have some say in the racial make-up of their student body.

Broad Implications

Finally, the kind of deference that the Supreme Court will give the School District will also have implications. In Grutter, the Court gave significant deference to the University of Michigan Law School’s judgment that diversity was essential to achieving the school’s educational mission. See Grutter, 539 U.S. at 328. Whether or not the Court chooses to afford similar deference to public secondary schools will shape the control school districts have over their own policies. Educational policy has been traditionally within the power of the states. See Brief of the States of New York, Connecticut, Illinois, Iowa, Kentucky, Maine, Maryland, Missouri, New Jersey, New Mexico, North Carolina, Oregon, Rhode Island, Utah, Vermont, Washington, Wisconsin, the District of Columbia, and the Commonwealth of Puerto Rico as Amici Curiae in Support of Respondents at 11. If the Court defers to the district, this will reaffirm local autonomy and give districts broad discretion to develop educational policy. This, in turn, could encourage policy-makers to be more accountable to families and implement policy that is innovative and responsive to local needs. See id. at 11 and Brief of Historians of the Civil Rights Era William H. Chafe, Davison Douglas, Charles Payne, Tomiko Brown-Nagin, Kenneth Mack, Risa Goluboff, Kevin Kruse and Matt Lassiter as Amici Curiae Supporting Respondents at 23. On the other hand, if the Court chooses not to give deference to the School District, school boards may lose some of their decision-making discretion, which could result in diminished community support. Id. at 12.

Regardless of the outcome, this decision will surely have an effect on public schools, be it in the composition of their student body, their admissions policies, or their educational approach generally. Although much depends on the outcome, the rationale of the Court is equally important in this case and to the future policy of public schools.

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Although the Court has certified three separate questions in this case, all three questions essentially involve the same inquiry: in light of the Court’s rulings in Grutter and Gratz, does the Seattle School District’s use of race in high school admissions violate the Equal Protection Clause? In answering this question, the court must first consider a jurisdictional challenge raised by the District and then, if it finds jurisdiction, consider the merits of this question.

I. Initial Jurisdictional Issue: Does a Controversy exist?

Before the merits of the case can be addressed, the Court first has to address the District’s jurisdictional challenge that no case or controversy exists within the Constitutional sense of those terms. The question was originally brought up by the Ninth Circuit independently of the parties (377 F.3d 949 at 958) and the School District has now adopted that argument as its own before the Court.

The U.S. Constitution in Article III § 2 specifies the scope of matters on which the federal courts can issue decisions. From almost the beginning, the Supreme Court contended that under this article it was unconstitutional for federal courts to issue mere advisory opinions; rather, the federal courts’ jurisdiction is restricted to deciding actual cases and controversies. While extensive jurisprudence has developed over what is an “actual case or controversy,” in Lujan v. Defenders of Wildlife the Court specified three elements that must be satisfied: (1) a party must be facing an actual or imminent injury rather than a hypothetical injury (“injury in fact”); (2) the complained of conduct must have caused the alleged injury (“causal connection”); and (3) it must still be possible to provide some remedy to that injury by a favorable court decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).

The District contends that these requirements are not met in this case. In particular, they emphasize that the children on whose high school admissions the case was originally based have since graduated high school, while the children of the other involved parents are not yet at the high school age. They contend that the children who have graduated no longer fulfill the third requirement because the parents merely sought injunctive relief prohibiting the school from using the race in admissions, not monetary damages, and consequently a favorable decision will not redress the injury to those children in any concrete way. Opposition to Writ of Certiorari at 20; Brief for Respondent at 16. They further contend that the children who have yet to reach high school age fail to fulfill the first requirement because their potential injury is not imminent; they have not even applied yet and consequently any injury to them is purely hypothetical at this point. As well, the District points out that it is no longer using the admission system that serves as the basis of this suit, and has not for several years, further demonstrating that any future injury is far from imminent. Brief for Respondent at 16–17.

PICS did not respond to this argument in either of its reply briefs. The only counter argument in the record is the Ninth Circuit’s resolution of the question. The Ninth Circuit dismissed fairly briefly the contention that PICS did not have a personal stake or suffer an actual injury, reasoning that it was satisfied because some of the parents had children who would reach high school age within the next several years. 377 F.3d at 958. It also determined that the actual case or controversy requirement was met despite the School District’s discontinuation of the use of race in high school admissions. Id. at 958. Under Supreme Court jurisprudence, to prove there was no jurisdiction under Article III § 2, the School District had to prove that they would not reinstate the policy. Friends of the Earth v. Laidlaw, 528 U.S. 167, 189 (2000). The Ninth Circuit held that the burden had not been met since counsel for the School District admitted it was likely that the policy would be reinstated. 377 F.3d at 959.

Although the Supreme Court must find jurisdiction in order to give an opinion on the equal protection claims, it is uncertain whether the Court will address this question in much detail. The respondents raised this issue in their brief opposing the grant of certiorari. Opposition to Writ of Certiorari at 20–21. Since the Court granted writ over these objections, it seems likely that it will find jurisdiction exists. As well, there is precedent for finding jurisdiction in situations where the passage of time has prevented a direct remedy. The Court in the seminal case Roe v. Wade made a jurisdictional ruling that although the plaintiff was no longer pregnant and thus technically the issue before the court was moot, given the short nature of pregnancy as compared to the length of the appellate process, requiring a continuing pregnancy for the satisfaction of the case or controversy requirement would effectively deny appellate review. Roe v. Wade, 410 U.S. 113, 125 (1973). Consequently, even though the issue was in some respect moot with respect to that petitioner, jurisdiction existed. Id. A similar reasoning could be applied in this case.

There has been considerable interest in this case, as demonstrated by the extraordinary number (approximately sixty) of amicus briefs filed in the case. This suggests that a decision against jurisdiction rather than on the merits would be a severe disappointment.

II. Arguments on the Merits

Because equal protection on the basis of race is at issue, the applicable standard of review to be applied in this case is strict scrutiny, as both parties agree, and as is well established in the Court’s prior case law. In order for its plan to be constitutional under strict scrutiny, the School District must show its use of race in the admission process was furthering a compelling government interest (“compelling interest”) and that the School District plan was the narrowest possible use of race that could achieve this interest (“narrowly tailored”).

Compelling Interest

The District argues that its use of race in high school admissions serves three compelling government interests: (1) the educational benefits of a diverse student body; (2) the reduction of racial isolation and de facto segregation; and (3) providing equality of opportunity to all students. Brief for Respondent at 24, 30, 33.

Educational Benefits

The School District relies on Grutter in describing the educational benefits of a diverse student body as (1) instilling the civic virtue of cross-racial understanding; (2) creating better-informed citizens by exposing students to a wide range of viewpoints; and (3) enabling students to achieve more success. The District contends that the first two benefits are important because public schools are responsible for developing good citizens. In an increasingly plural society, exposure to other points of view promotes understanding and cohesiveness. It contends that these values which the Court recognized as important to the Michigan Law School are even more important at the high school level because not all students will go to college, meaning high school is the last chance for the educational system to instill in them these civic virtues. In support of the third benefit, the District cites findings that minority students in fully integrated schools often perform better academically and are more likely to find work in an integrated workplace. Brief for Respondent at 24–34.

PICS contends that while in Grutter the Court recognized diversity in a holistic sense as a compelling interest, it specifically held that mere racial diversity is not a compelling government interest. Brief for Petitioner at 33–34. The system that was upheld in Grutter considered a number of other factors to assure diversity of not only race but also socioeconomic status, skills, and so forth. 539 U.S. at 316. Since Grutter explicitly stated that seeking to maintain a specific percentage of minority students in the student body was “patently unconstitutional,” PICS contends that the District’s plan is also ipso facto unconstitutional. It also contends that racial diversity is too amorphous and uncertain a concept to be considered a compelling interest, and finally disputes as inconclusive the District’s statistics regarding the increased success rates of students in integrated schools. Brief for Petitioner at 35–36.

Alleviating Racial Isolation & De Facto Segregation

In support of the argument that reducing racial isolation is a compelling interest, the District points to the U.S. Department of Education’s Magnet School Assistance Program (“MSAP”). The statute establishing MSAP permits granting federal grants to magnet programs that seek to decrease “minority group isolation.” 20 U.S.C. § 7231. The Department of Education has characterized this as a “compelling interest” in regulations and various other statements. The District further points to the line of Supreme Court cases requiring that schools desegregate even when such segregation was simply the effect of where the district’s boundaries were drawn. It argues that it should not be force to walk the “tightrope” between violating the constitution by failing to integrate schools and violating the constitution by integrating schools. Brief for Respondent at 31–32.

PICS counters that, far from accomplishing these lofty goals, the District’s plan is simply making “trivial changes in pigmentation diversity” in just a few of the schools that are actually imbalanced. According to PICS, in the schools in which the tiebreaker was used, there was only a two to six percent change in the racial make-up of the student body. As well, because the racial tiebreaker is only used when more students apply to a certain school than there are spots, schools such as Ranier and Cleveland—which have only ten percent of white students and are not popular choices— remain racially imbalanced. PICS cites previous Court cases holding that when a means used does not actually address all the harm it purports to address, it cannot be a compelling interest. See Church of the Lukumi v. Hialeah, 508 U.S. 520, 546–47 (1993); Florida Star v. B.J.F. 491 U.S. 524, 541–42 (1989) (Scalia, concurring). Brief for Petitioner at 36–37.

Equitable Access to Popular High Schools

The District points out that because it receives federal funding, it is prohibited from taking any action which has a “discriminatory effect on participation in educational programs.” Since school assignments decided purely on the basis of distance from the school would mean that few minority students would be admitted to the most popular schools, the District contends it is required to take steps to integrate the schools. It again cites the MSAP to show that ensuring equal access is a compelling interest. Brief for Respondent at 33–34.

PICS counters that neighborhood demographics are the result of individuals’ voluntary choices, and that parents tend to choose schools near their home. Consequently, the demographics of a neighborhood school would also be the consequence of those individual choices. PICS cites Supreme Court jurisprudence for the proposition that there is no compelling government interest in adjusting general societal discrimination. Brief for Petitioner at 38.

Narrowly Tailored

The District contends that its plan used the narrowest possible means to achieve is educational goals. It contends that race was used in a narrow way because the race tiebreaker determined the placement of only about ten percent of incoming high school students and was one of several factors under consideration. Furthermore, it was only used in a limited number of schools—those that were both over subscribed and relatively unintegrated. Brief for Respondent at 33, 43. The District argues that under the Court’s jurisprudence, strict scrutiny does not require sacrificing every other goal to that of avoiding the use of race, but that it requires a proper balancing of goals. Id.

The District also contends that the racial tiebreaker was necessary because other race-neutral activities were inadequate to achieve their compelling interests. Without it, some schools such as Cleveland and Ranier would have remained substantially dominated by minorities, while minority students were denied the opportunity to attend the popular schools outside their neighborhoods. The District asserts that it helped these schools by allowing students from the schools to attend other schools, furthering the goals of ending racial isolation and promoting equal access. Finally, it lists several race-neutral alternatives that were considered (such as a lottery system, the use of poverty as a proxy for race, and regional assignments) and argues that they would not have been as effective as the plan that is the subject of this litigation. Brief for Respondent at 33–42.

PICS disagrees that the race tiebreaker was necessary to the District’s goals, even if the Court finds them to be compelling interests. First, it contends that the schools were already diverse; in particular it notes that the “non-white” population was made up of students from varying backgrounds such as Asian, Hispanic, and African-American, making them diverse even when there was not a significant white population. The highest white student population would have been 64 percent, which PICS contends still contains a significant portion of minority students. It also argues that the plan is not narrowly tailored because it does not seek integration at all racially imbalanced schools, only certain ones. Finally, it argues that race-neutral techniques, such as a lottery or taking into account many forms of diversity in a holistic approach, would be as effective as the racial tiebreaker. In fact, it contends that the District never seriously considered other race-neutral alternatives. Brief for Petitioner at 39–43.