Affirmative Action in Washington: The Debate Continues

By Nick Beermann

Whether one likes or dislikes affirmative action, there is little question that the United States Supreme Court’s affirmative action decisions in July of this year, Grutter v. Bollinger and Gratz v. Bollinger, re-ignited the affirmative action debate in Washington and the rest of the nation. But while much of July’s editorial pages debated the pros and cons of the Supreme Court’s endorsement of a University of Michigan Law School affirmative action program, the Washington Supreme Court was busy dealing with affirmative action in Washington schools. The result was the Washington Supreme Court’s opinion in Parents Involved in Community Schools v. Seattle School District No. 1, ___ Wn.2d ____, 72 P.3d 151 (2003). Published three days after the U.S. Supreme Court’s opinions, Parents is likely to extend the affirmative action debate in Washington for the foreseeable future.

Seattle Public Schools Tie-Breaker Challenged

Parents involved a group of parents who challenged the Seattle Public School District’s “open-choice” system of allocating enrollment of students at over-subscribed high schools. Under the District’s open-choice system, students in the Seattle Public Schools are permitted to attend the high school of their choice. However, when a school is oversubscribed and that particular school’s racial demographic deviates more than 15% from the demographic of Seattle students as a whole, the District will assign minority or Caucasian students to the oversubscribed school until it mirrors the overall racial demographic of the District. The District established the open-choice plan as a tie-breaker to avoid de facto segregation caused by students’ inclination to attend more popular schools and to enrich the educational experience of the students.

The parents alleged that the open-choice plan violated RCW 49.60.400 (the codified version of Initiative 200, passed by Washington voters in 1998), which prohibits the state’s “discrimination against” or “preferential treatment to any individual or group on the basis of race, sex, color ethnicity, or national origin” in public education. The parents argued that their kids, who had been denied enrollment in their preferred school under the open-choice policy, had been discriminated against on the basis of their race.

Suit was initially filed in United States District Court, which granted summary judgment to the District on grounds that Article IX of the Washington Constitution imposed a duty upon school boards to operate racially integrated schools and recognized that school boards might need to take race into account to meet that duty. See Parents Involved in Cmty. Schools v. Seattle School District No. 1, 137 F. Supp. 2d 1224, 1228 (W.D. Wash. 2001). The Ninth Circuit Court of Appeals initially reversed, but later withdrew its opinion before the 2002-03 school year assignments were scheduled after both parties sought reconsideration. The court then stayed further proceedings and certified state law questions to the Washington Supreme Court. See id., 285 F.3d 1236, opinion withdrawn by 294 F. 3d 1084 (9th Cir. 2002).

“Preferential” and “Discriminated” are Ambiguous Terms

After reciting the entire history of affirmative action in Washington and discussing the background of Initiative 200, the Washington State Supreme Court honed in on whether the open-choice program discriminated against or granted preferential treatment to students based on their race. The Court first found that RCW 49.60.400(3) “strongly suggests to the average voter that some race conscious action by the government is permissible.” Construing the terms “preferential” and “discriminated” as ambiguous, the Court then found that the word “preference” implied the concept of an advantage, and because the open-choice plan applies equally to members of all races, it cannot be said to be preferential based on race. The Court wrangled a bit more with the concept of discrimination, but found that the “average informed voter would have believed that I-200 only prohibited reverse discrimination where a less qualified person or applicant is given an advantage over a more qualified applicant,” which the Court determined a racially neutral program designed to promote diversity did not do. Relying on language from the I-200 voter’s pamphlet, the Court stated: “Initiative 200 does not end all affirmative action programs. It prohibits only those programs that use race or gender to select a less qualified applicant over a more deserving applicant for a public job, contract or admission to a state college or university.” The Court held that RCW 49.60.400 prohibits reverse discrimination where race or gender is used by government to select a less qualified applicant over a more qualified applicant. It does not prohibit the Seattle School District’s open-choice plan tie breaker based on race so long as it remains neutral on race and ethnicity and does not promote a less qualified minority applicant over a more qualified applicant.” See Parents, 72 P.3d 151 (pinpoint citations omitted).

In a separate concurring opinion, Justice Madsen concluded that the majority’s construction of “preference” and “discriminate” as ambiguous was misguided. To her, the open-school plan did not violate RCW 49.60.400 because it does not favor or disfavor any person or group on the basis of race. Her view on the ambiguity of the terms was joined by Justice Sanders in dissent, who rejected the majority opinion outright and wrote: “Clearly, providing certain students a place at an oversubscribed school, while turning others away on racial grounds is an example of both preferential treatment and invidious discrimination.”

Parents Clarifies I-200

As the first judicial construction of Initiative 200, Parents is beneficial to parents, state agencies, municipalities and educational institutions because it provides a clearer interpretation of what is or is not prohibited by RCW 49.60.400 and shows how race may still be used as a determining factor in certain contexts. Supporters of affirmative action have opined that Parents as well as the U.S. Supreme Court’s recent opinions are a recognition by the judiciary that affirmative action based on race is appropriate in certain contexts so long as it does not discriminate against individual persons. That may be, but detractors of affirmative action will view Parents as a step back from what many likely believe was an elimination of race-based governmental decision-making by Initiative 200.

Racial Integration Issues Remain Unanswered

While the Washington Supreme Court clarified what is meant by the terms “preference” and “discrimination” in the context of affirmative action, the Court did not answer the question posed by the Ninth Circuit of whether Article IX of the Washington Constitution permits or requires racial integration of public schools. That open question is likely to foster more litigation as parents argue against segregation in the future. Moreover, Parents now travels back to the Ninth Circuit for further determination of whether the open-choice program violates the Equal Protection clause of the Fourteenth Amendment to the U.S. Constitution. Thus, whether one agrees with affirmative action or not, Parents ultimately establishes that the debate over affirmative action will continue in Washington for some time.