Expect split decision on racial tiebreakers Expect split decision on racial tiebreakers
The debate on racial preferences has been focused on the University of Michigan case in the U.S. Supreme Court. But don't forget the Seattle School District case in the Washington Supreme Court. One of these Thursdays, a decision will come tumbling down on whether Seattle may use a "racial tiebreaker" in assigning children to schools. The tiebreaker, now suspended, was the last vestige of forced busing. The tiebreaker simplified the racial labels used by the Seattle Schools, using only two categories, white and nonwhite.
It barred only a few hundred students from where they wanted to go. Its immediate effect was small, but its claim of authority is large. The tiebreaker runs straight into Initiative 200, which said: "The state shall 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 employment, public education or public contracting." Voters approved I-200 in 1998 by 58.6 percent of the vote. All correct opinion was against it.
Radio host John Carlson led the drive for it, but it was two unknowns, Scott Smith and Tim Eyman, who had filed it. I-200 was Eyman's first foray into state elections. It should surprise no one that it is being challenged by a government agency that wants to ignore it. Oral argument was held Oct. 24. The decision could come any time. Lawyers argued not for two positions, but four. The two intervenors were pressing for constitutional rulings--sweeping judgments that would change the law.
The Pacific Legal Foundation argued that government should be color-blind. "Race has no place in Seattle Schools," proclaimed attorney Russ Brooks. He quoted from Washington's 1889 constitution, which declared that public schools shall offer an education "without distinction or preference on account of race, color, caste or sex." In regard to public education, Brooks said, I-200 is unnecessary: Colorblindness is mandated by the state constitution. Indeed, that is what the words say. Jeffrey Robinson, speaking for the Urban League of Metropolitan Seattle, quoted the same words--"without distinction or preference on account of race, color, caste or sex" --and said the real meaning was that every child had to receive an equal education. In light of a century of racism, he said, equality requires racial preferences. He said, "The use of the tiebreaker is mandated."
That turns the words of the constitution inside out. Barbara Rothstein, the original judge on the case, had done the same. The two other lawyers focused on a win for their clients. Dan Ritter, speaking for the Queen Anne parents whose kids had been kept out of Ballard High, said he would be happy for a ruling that the constitution mandates color-blind schools, but would be satisfied if the constitution allows them--because that's the kind of schools the people of Washington had decided to have.
"The question is, who gets to decide," he said. Michael Madden, representing the Seattle Schools, made an even narrower argument: that even if I-200 stands, the Seattle Schools may ignore it because diversity is "a compelling state interest." Justice Richard Sanders interjected. "Suppose the Seattle School Board valued homogeneity rather than diversity, and they decided that the tiebreaker shall promote same-sex education," he said. "Would that violate I-200?" "It would have to be shown that the intent to be served is compelling and that the remedy was narrowly tailored." Sanders persisted.
Imagine two kids applying to a school. One gets in and the other, because of his race, doesn't. "Isn't that discrimination?" "No, it is not," Madden said. "We believe preferential treatment ... may not be discriminatory." In other words, the constitution may forbid a thing, and voters may vote to forbid it, but government may do it as long as it has a compelling reason. Will the court buy that? It might. Expect a split decision and lots of noise.
Bruce Ramsey's column appears regularly on editorial pages of The Times. His e-mail address is bramsey@seattletimes.com.
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