This is the latest chapter in a long-running challenge to the Seattle public school district’s process for assigning pupils to the ten high schools within the district. The district has an “open choice” plan that allows students to choose to attend any high school in the district, so long as room is available in that school. Not surprisingly, the best schools in the district are over-enrolled, and the district has a system of “tie-breakers” to determine enrollment at those schools. The first tie-breaker gives a preference for students whose siblings already attend the school; the second tie-breaker is based entirely on race, and implements a system designed to promote racial balance in the student body of each school. Parents of children denied admission to the school of their choice solely because of their race challenged the racial tie-breaker as a denial of equal protection under both United States and Washington State constitutions. In its most recent prior opinion in the case, the Ninth Circuit certified to the Washington Supreme Court the question of the legality of the policy under the state constitution, and the state Supreme Court held the policy to be valid.

Unable to avoid the federal constitutional issue any longer, a divided panel of the Ninth Circuit holds the policy to be unconstitutional. In an opinion written by Judge O’Scannlain, the majority purports to apply the analysis of the U.S. Supreme Court in Gratz v. Bollinger, 539 U.S. 244 (2003) (the University of Michigan affirmative action case), and concludes that the Seattle program’s use of race as an admissions factor is not “narrowly tailored” enough to pass constitutional muster. Judge Graber, in a long dissent which likely will attract attention from various members of the Court en banc, would uphold the constitutionality of the tie-breaker system. [Download]