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

concurring:

My colleagues in the majority and the dissent have written extensively and well. Given the exacting standard they are attempting to apply, I cannot say that either is clearly wrong. But there is something unreal about their efforts to apply the teachings of prior Supreme Court cases, all decided in very different contexts, to the plan at issue here. I hear the thud of square pegs being pounded into round holes. Ultimately, neither analysis seems entirely persuasive.

I start as did our eminent colleague Chief Judge Boudin of the First Circuit, in commenting on a highly-analogous plan adopted by the city of Lynn, Massachusetts:

Comfort v. Lynn Sch. Comm., 418 F.3d 1, 27 (1st Cir.2005) (Boudin, C.J., concurring).

These are meaningful differences. When the government seeks to use racial classifications to oppress blacks or other minorities, no conceivable justification will be sufficiently compelling. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 374 , 6 S.Ct. 1064 , 30 L.Ed. 220 (1886). Similarly, when lawyers use peremptory challenges to exclude jurors of a particular race, thereby denying them the right to participate in government service, they must justify their…

*1166 Opinion by Judge FISHER; Concurrence by Judges KOZINSKI; Dissent by Judge BEA.

with whom Chief Judge SCHROEDER and Judges PREGERSON, HAWKINS, W. FLETCHER and RAWLINSON join concurring; Judge KOZINSKI, concurring in the result.

This appeal requires us to consider whether the use of an integration tiebreaker in the open choice, noncompetitive, public high school assignment plan crafted by Seattle School District Number 1 (the “District”) violates the federal Constitution’s Equal Protection Clause. Our review is guided by the principles articulated in the Supreme Court’s recent decisions regarding affirmative action in higher education, Grutter v. Bollinger; 539 U.S. 306 , 123 S.Ct. 2325 , 156 L.Ed.2d 304 (2003), and Gratz v. Bollinger, 539 U.S. 244 , 123 S.Ct. 2411 , 156 L.Ed.2d 257 (2003), and the Court’s directive that “[cjontext matters when reviewing race-based governmental action under the Equal Protection Clause.” Grutter, 539 U.S. at 327 , 123 S.Ct. 2325 . 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…

I. Background2

A. Seattle Public Schools: A Historical Perspective

Seattle’s historical struggle with the problem of racial isola- tion in its public school system provides the context for the District’s implementation of the current challenged assign- ment plan. Seattle is a diverse community. Approximately 70 percent of its residents are white, and 30 percent are non- white. Seattle public school enrollment breaks down nearly inversely, with approximately 40 percent white and 60 per- cent nonwhite students. A majority of the District’s white stu- dents live in neighborhoods north of downtown, the historically more affluent part of the city. A majority of the city’s nonwhite students, including approximately 84 percent of all African-American students, 74 percent of all Asian- American students, 65 percent of all Latino students and 51 1 The terms “racial diversity,” “racial concentration” and “racial isola- tion” have been used by the District to encompass racial and ethnic diver- sity, concentration and isolation. For the purposes of this opinion, we adopt this shorthand. 2 We draw the following restatement of facts largely from the district court opinion, see Parents…