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

Opinion by Judge O’SCANNLAIN; Concurrence by Judge GRABER.

We are asked to decide the legality of the use of race in determining which students will be admitted to oversubscribed high schools in Seattle, Washington.

I

Seattle, Washington is a vibrant and racially diverse metropolis in the Pacific Northwest. Based on the parties’ submissions, it appears that approximately 70% of the residents of Seattle, Washington are white, while approximately 30% are nonwhite. This racial diversity is reflected in Seattle’s public schools, where the percentages are more evenly balanced: the students are approximately 40% white and 60% non-white.

The racial distribution of the community is not, however, homogeneous. It appears that more white students live in the northern part of Seattle, and in areas close to the waterfront in all parts of the city, than in the southern part of the city. Specifically, approximately 66% of white students live north of downtown. In contrast, approximately 77% of non-white students live south of downtown — including 84% of all African-American students, 74% of all Asian students, and 65% of all Hispanic students.

A

Seattle School District Number 1 (the…

specially concurring.

I concur specially because the racial tiebreaker that Seattle School District No. 1 uses to assign some public high school students to desirable schools plainly “grant[s] preferential treatment” to those students on the basis of their race, in violation of Initiative 200, which is codified as Washington Revised Code § 49.60.400 (“I-200”). 1 Nothing in the United States Constitution or the Washington Constitution forbids the citizens of Washington from enacting a law like 1-200 or requires that the law be interpreted to allow a racial tiebreaker in the circumstances presented here. I am aware of no relevant case constitutionally requiring a racial tiebreaker in the absence of de jure school segregation and in the absence of any affirmative act on the part of a school district to create school segregation. 2 To the extent that racial segregation exists in Seattle’s high schools, as the majority explains, it results from general residential patterns only.

I write separately because, in my view, the majority errs in two fundamental ways when it discusses federal law as an aid to interpreting 1-200. First, in these circumstances the Washington Supreme Court…