Mulling court's schools ruling

Seven months after the U.S. Supreme Court shot down the racial tiebreaker once used to help assign students to public schools in Seattle, educators and legal experts are still divided over how to interpret the ruling, and what steps -- if any -- districts could take to foster diversity in schools.

At a forum at the Seattle University School of Law on Friday, experts parsed the justices' opinions and discussed steps the Seattle district has taken since the ruling.

The School Board remains concerned about preventing schools from becoming racially segregated, and has been considering other means to promote diversity, such as using family income to help make school assignments and eliminating barriers to attending a school across town.

But some questioned whether school districts should consider students' race at all. During one session, University of Texas Law School Professor Lino Graglia argued that government shouldn't attempt to create a certain racial balance in schools.

Paul Finkelman, a law professor at Albany Law School in New York, disagreed. "I would love to live in a world where race doesn't matter, but the problem is, our culture has never, ever taken that position," he said. "To say we should simply ignore using race when the whole world uses race is ignoring the elephant in the room."

Several speakers attempted to interpret the concurring opinion written by Justice Anthony Kennedy, who was the swing vote in the sharply divided decision. Kennedy suggested that race could be used as part of a district's broader plan to diversify schools, so long as it wasn't the primary factor and that students weren't lumped into broad categories such as "white" or "minority."

Districts could consider race when deciding where to build new schools or where to draw geographic school attendance boundaries, he suggested.

Those suggestions may come into play in Seattle, as the School Board revises its student-assignment plan this spring. District officials are rethinking how they define diversity, and what other factors to use as tiebreakers for popular schools. Suggestions so far include giving preference to students who qualify for free or reduced-price lunch, or "reverse distance" -- so students who wanted to attend a popular program across town wouldn't be penalized for not living within the school's attendance zone.

The board formally repealed its racial tiebreaker last summer, but some of the same issues and emotions that arose during the lawsuit are likely to surface again, school district attorney Shannon McMinimee said.

"We still have concerns about equity of access to quality of programs. ... and we're continuing to look for ways to foster diversity," she said.

The controversy this time, she said, is likely to be over what tiebreakers are chosen and where school boundaries are drawn. "The minute we put lines on the map is the minute 15 people show up in matching T-shirts" to protest at School Board meetings, she said.

The racial tiebreaker was part of a School Board decision in 1996 to allow the district's 46,000 students to attend a school of their choice. That assignment plan was intended to replace the district's widely unpopular mandatory busing and allow students to attend school closer to home.

School officials considered a student's race as one of several tiebreakers at popular schools; race was a factor if the student's attendance would help bring the high school closer to the districtwide average of about 40 percent white students.

But the plan had critics, including those parents whose students were denied seats at the high school of their choice based on their race. They formed Parents Involved in Community Schools and sued the district in 2000, saying that the racial tiebreaker policy was unfair and violated students' civil rights.

Though the lawsuit challenged only the use of the racial tiebreaker for high-school assignments, the district quit using it in 2002, while the case worked its way through the courts.

The school district is still embroiled in a legal fight over whether it will have to pay the multimillion-dollar attorneys fees for the parents who filed the original lawsuit.

For now, they're waiting for a ruling from a lower-court judge to determine who officially "won" the case, McMinimee said, and the two sides are not close to an agreement.

"This will be a fight we'll continue to have for quite some time," she said.