May Race Ever Be Used as A "Tie-Breaker" in High School Admissions?
The Ninth Circuit Says "Yes" in a Case That Might Test the New Supreme Court's Affirmative Action Instincts

By VIKRAM DAVID AMAR

Friday, Oct. 28, 2005

Last week, an eleven-judge panel of the United States Court of Appeals for the Ninth Circuit handed down an important affirmative action ruling.

The judges approved (by a 7-4 vote) a Seattle school district's plan that uses the race of individual high school applicants as a "tie breaker" in deciding which high schools students will attend. The plan has been challenged by parents who argue that the racial tie-breaker unconstitutionally hurts their children's chances to attend their first-choice schools.

The case might provide the newly-constituted Supreme Court with one of its first chances to weigh in on the contentious question of when government may take into account the race of individuals. And just now, this question looms particularly large: Justice O'Connor was the swing vote in this area of constitutional law, and yesterday we learned that Harriet Miers - who as Texas Bar President appears to have embraced affirmative action, at least as a policy matter -- will not be the one to replace her.

The "Tie-Breaker" Plan: How it Works

Here's how the Seattle school plan works: Area students going into high school are asked to register their preferences among any of the ten high schools within the district. The district places as many students in their "first choice" schools as possible. But the district can't satisfy everyone; at least four of the ten schools are oversubscribed, in that more students want in than can be accommodated.

For these oversubscribed schools, students are admitted pursuant to four "tie-breakers" considered in sequence. The first is whether an applicant has a sibling already attending the school. The third is the applicant's geographical proximity to the school. And the fourth is a random lottery.

But the second tie-breaker - considered ahead of geography or a lottery - focuses on whether the oversubscribed school is "racially imbalanced." A school is imbalanced if its racial makeup - that is, the percentages of nonwhites and whites at the school -- diverges by more than 15 percent from the racial makeup of the whole district.

Right now, the entire district is 60 percent nonwhite and 40 percent white. That means a particular school is imbalanced if less than 45 percent or more than 75 percent of its students are nonwhite. (To put the numbers the other way around, a school is imbalanced if less than 25 percent or more than 55 percent of its student body is white.)

When an oversubscribed school is deemed imbalanced, the race of individual applicants is then used to redress the imbalance. So, for example, in 2000-2001 (the one year for which the opinion provides data), at oversubscribed Ballard High, if the racial tie-breaker had not been used and only the other tiebreakers (sibling presence, geography and lottery) had, nonwhites would have comprised only 33 percent of the school, whereas with the tie-breaker in place, nonwhites comprised 54 percent (well within the range of 45-75.) At Franklin High, another sought-after school, without the tie-breaker nonwhites would have constituted 79 percent, whereas with the tie-breaker their numbers were reduced to about 59 percent.

The School District's Argument, The Ruling, and the Key Supreme Court Precedent

Under Supreme Court precedents, the school district seems required to document a "compelling interest" to take race into account, and can use race only in a carefully tailored way. The district argues it has met this standard because ensuring that every school mirrors, to some extent, the racial makeup of the larger district community facilitates improved education; racially balanced schools help promote racial and cultural understanding and teach students to operate in a multi-racial/multi-ethnic world much more than do imbalanced schools.

The Ninth Circuit en banc panel agreed. In doing so, the Ninth Circuit majority applied and extended the holding and rationale of the Supreme Court's Grutter v. Bollinger University of Michigan affirmative action ruling of 2003, in which Justice O'Connor wrote for a bare five-member majority upholding the Michigan law school's ability to take the race of applicants into account for the purposes of assembling a "critical" mass of racial minorities at the law school to further educational diversity.

Does the Ninth Circuit's Extension of Grutter Work?

The Seattle case is a very interesting and important follow-on to the Michigan law school case for a number of reasons.

First, much of the reasoning of Justice O'Connor's opinion in Grutter focused on the unusually important role played by lawyers, law schools and the legal community in American politics and culture. The Ninth Circuit's (to my mind plausible) extension of Grutter to other educational arenas - even K-12 settings - is sure to be controversial.

So too is the Ninth Circuit's decision to allow the school district to consider racial diversity without making much effort to promote other kinds of diversity. Working in the University of Michigan's favor was that it seemed to care about occupational diversity, cultural diversity, intellectual diversity, etc. along with racial diversity. Not true for Seattle. (It is also perhaps noteworthy here that Seattle defined race simply in white/nonwhite terms, obscuring potentially important differences within both groups.)

Another factor that helped Michigan was that its concept of assembling a "critical mass" of minority students did not require it to use racial proportionality -- or anything close to it -- as a baseline. As long as there were a non-trivial number of minority students enrolled, critical mass and diversity could be accomplished. In the Seattle setting, there are clear, hard boundaries (the Ninth Circuit dissent calls them impermissible quotas) to define racial "balance", and those boundaries are not pegged to the same kind of minimal critical mass idea that there be a non-trivial number of white and non-white students at each high school. Instead, the boundaries to define racial balance come from the racial baseline of the larger community. And this move towards proportional representation is likely to ruffle some feathers.

Why Grutter Might Not Be the Best Analogy

And yet, as Judge Kozinki's thoughtful concurrence pointed out, Seattle's use of race may be less troubling than Michigan's insofar as no racial group is systematically benefited or burdened by the racial tiebreaker (unlike the Michigan setting, where blacks, latinos and native Americans were clearly the beneficiaries of Michigan's affirmative action plan and whites and asians bore the diffuse burden).

Judge Kozinski could say what he said about the Seattle plan because some nonwhite children were denied their first-choice school in the name of racial balance. That is, some white kids got into their first choice schools by virtue of the racial tie-breaker. So neither whites nor nonwhites as a group were singled out for distinctively burdensome treatment. (It does bear mention, though, that from the numbers provided in the opinion for one year, it appears that 216 nonwhites were helped into their first-choice schools by the racial tiebreaker, whereas only 89 whites were so helped. And remember, whites comprise 40 percent of the district.)

The fact that both whites and nonwhites may be aided or burdened by the tie-breaker, along with the fact that the tie-breaker was being used not to segregate but rather to integrate, led Judge Kozinksi to suggest that perhaps the Seattle program ought not to be judged under the same rigorous judicial test that applies to most instances of government race-consciousness.

The dissent resisted such a suggestion, arguing that "[e]qual protection is an individual right, and whenever the District tells one student, whether white or nonwhite, he or she cannot attend a particular school on the basis of race, that action works an injury of constitutional proportion" by making one's fate turn on one's race and by sending impermissible government messages that race matters.

These are all big questions, and ones that the Supreme Court may soon be invited to take up. A somewhat similar case from Boston was decided by the First Circuit (similarly) in June, and a certiorari petition to the Supreme Court in that earlier case was filed in September. That dispute, along with the Seattle litigation, may give us our first clue as to the "new" Supreme Court's commitment to, and understanding of, the momentous Grutter ruling and in particular to the views of Chief Justice Roberts and whoever replaces Justice O'Connor.


Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author of the Cohen and Varat constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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