SEATTLE -- This city's school district decided in 2000 that because the son of Jill Kurfirst and the daughter of Winnie Bachwitz are white, they should be assigned to an inferior and distant high school. If they had not left the Seattle school system, this would have required them to rise at 5 a.m. in order to leave home by 5:30 a.m., alone and in the dark, to take the first of three buses, returning home between 8 p.m. and 9 p.m., with almost no time left for homework, family activities and adequate sleep.
The parents argue that the racial school assignments -- actually, assignments by pigmentation -- that so injured their children violate the Constitution's guarantee of equal protection of the laws. The reliably unreliable 9th U.S. Circuit Court of Appeals -- often reversed but never in doubt -- predictably ruled, with interesting indifference to pertinent Supreme Court precedents, against the parents. Soon -- oral arguments are Monday -- the Supreme Court can remind the 9th Circuit of the Constitution's limits on what schools can do in the name of ``diversity.''
Students can seek admission to any of Seattle's high schools. But the Seattle School District decided to engineer a precise racial balance in its most popular -- because much better -- high schools, which are chosen by more students than they can accommodate. The district wanted each oversubscribed school to reflect the entire system's ratio of 40 percent whites and 60 percent nonwhites. So it adopted a race-based admission plan to shape the schools' ``diversity.''
The district gave preference to certain applicants, using considerations it called ``tiebreakers.'' One, which benefited about 10 percent of applicants, was whether the student had a sibling at the desired school. Another was whether the student's race will produce or maintain a 40-60 balance.
When registering children for high school, parents were asked to specify each child's race. If parents did not specify, the district did so based on visual inspection of the parents' or child's pigmentation. The school board president has said ``skin tone matters.''
The two children wanted to attend Ballard High School because of its Biotech Academy. In the 2000-01 school year, when 82 percent of the city's students sought admission to one of the five best schools, the children were among the 300 students denied admission to the school of their choice because their race interfered with racial balancing.
Although Seattle never had segregated schools, the district discusses its racial preferences with reference to ``segregation'' and ``integration.'' But a statement by the district reveals that racial preferences are supposed to serve social engineering: ``Diversity in the classroom increases the likelihood that children will discuss racial or ethnic issues and be more likely to socialize with people of different races.'' Or different skin tones. Is that a ``compelling government interest,'' sufficient to justify race-based school assignments? The 9th Circuit, siding with the district, argued two propositions, both of which conflict with Supreme Court precedents.
One was that racial preferences are benign if they do not ``unduly harm any students'' or ``uniformly benefit any race or group of individuals to the detriment of another'' (emphases added). But the Supreme Court has rejected this idea that the equal protection clause protects group rights rather than individual rights.
Second, the 9th Circuit said broad deference is owed to the judgments of local school districts. But no line of cases has established that high schools enjoy even the limited latitude that universities have in treating race as a factor when deciding who may be admitted. Rather, the Supreme Court has held that public secondary education ``must be available to all on equal terms.'' And here are samples of the Seattle district's judgments which the 9th Circuit thinks deserve deference:
Until June, the school district's Web site declared that ``cultural racism'' includes ``emphasizing individualism as opposed to a more collective ideology,'' ``having a future time orientation'' (planning ahead) and ``defining one form of English as standard.'' The site also asserted that only whites can be racists, and disparaged assimilation as the ``giving up'' of one's culture. After this propaganda provoked outrage, the district, saying it needed to ``provide more context to readers'' about ``institutional racism,'' put up a page saying that the district's intention is to avoid `` unsuccessful concepts such as a melting pot or colorblind mentality.''
The Supreme Court has said that all racial classifications by government are ``presumptively invalid'' unless narrowly tailored to serve a compelling government interest. The district's repellent Web site revealed the interest that the district considers so compelling that it justifies racial preferences. Supreme Court deference to such race-mongering would make a mockery of the equal protection guarantee.
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