The Racial Tiebreaker (2003, 2007)

South Africa, 1985: photo by Bruce Ramsey

For years the Seattle Schools had a program of forced busing, of requiring many students to attend schools far from their homes to achieve racial balance. It was extremely unpopular, and it was eventually ended and replaced by a plan called the racial tiebreaker. Like forced busing, the racial tiebreaker flatly and obviously violated a law the people of Washington had voted in — Initiative 200. But when it went to the Washington Supreme Court, the justices said, “No problem.”

I have two pieces here. The second is a piece I wrote for Liberty in 2007. The first is my Seattle Times editorial column of July 2, 2003.

The Perfect Program for Liberal Seattle

Sometimes I think the Washington Supreme Court just makes things up. Consider the case of Initiative 200 and the Seattle Schools.

Here is how Seattle admits first-time students to high schools. They can apply to any of the 10 high schools in the city. If there is a queue, the district uses tiebreakers. The first tiebreaker is whether the student has a brother or sister there. Now, the second tiebreaker is distance from the school. Before this lawsuit, the second tiebreaker was race and the third was distance.

Seattle keeps statistics on all sorts of ethnic groups, from Gypsies to Samoans to Alaska Natives. Its racial tiebreaker recognized only two races, “white” and “nonwhite.” Under this primitive mechanism, if the school was more than 75 percent “white,” the “nonwhite” applicant got in. If it was more than 75 percent “nonwhite,” the “white” applicant got in.

Parents sued, and the question landed at the Washington Supreme Court. The question was: Do assignments by race violate Initiative 200, which says: “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race … “

No ballot measure of the past 20 years was simpler than this. Clearly, it prohibits what Seattle Schools was doing. And yet, Justice Tom Chambers, writing for the 8-1 majority, said the racial tiebreaker was OK because it was “a racially neutral plan, which gives no race an advantage over another.”

By that standard, it was also a racially neutral plan when Louisiana required passenger trains to have separate cars for “white” and “colored.” So ruled the U.S. Supreme Court in 1896, when it said that compelled separation had “no tendency to destroy the legal equality of the two races.”

The liberals who wield the sword of compulsion think it is very unfair to compare their warm intentions to the bad people of 1896. But they are the same in this respect: They want government to affix racial labels to Americans and order them here and there.

When asked to justify this institutional racism, liberals speak of groups. Notice that Justice Chambers writes that the Seattle plan “gives no race an advantage over another.” He cannot say it gives no individual an advantage, because it does. And I-200 specifies individuals. So do our federal and state constitutions.

The liberals justify their abandonment of America’s individual-rights tradition by the overriding need for “diversity.” What can one say of this? First, that a lot more people say they favor this diversity than actually seek it out; second, that Seattle already has it, more than almost any other place in the state; and third, that the racial tiebreaker does precious little to produce any more of it.

The last year in which the racial tiebreaker was used, it changed the assignments of 300 students. That is often described as “10 percent of assignments,” but it is only 2 percent of all public high-school students in Seattle.

Seattle Schools used to be serious about mixing the races. Its program was called busing, and people hated it. It almost wrecked the public schools. It went on for years, and the white people in charge were too terrified to repeal it. It took a black superintendent and a black School Board member to pull the chain on it.

That left the district without institutional cover. Politically, it needed that, but in a form that a majority of the Seattle voters could stand. It needed something that sounded big but that victimized only a few. Hence, the racial tiebreaker, a program liberals can feel good about, get righteous about and go to court about, but that does almost nothing.

The perfect program for liberal Seattle.

The task of the Washington Supreme Court was to maneuver this program past a law that flatly forbade it. Done.

The case goes back now to the 9th Circuit Court of Appeals, a federal court, for a final decision. The federal courts will have to follow the Michigan ruling by Justice Sandra O’Connor, which probably means the bureaucrats who rule us will get to do what they want.

The “tiebreaker” ended up at the U.S. Supreme Court, which killed it, so in fact the bureaucrats did not get to do what they wanted. It was sure fun to compare the Washington Supreme Court’s decision to Plessy v. Ferguson, though.

In 2007 the U.S. Supreme Court struck down the “racial tiebreaker” used by the Seattle Public Schools. I had fought against that in my column in the Times. I also took Morgan with me on a trip to Washington, D.C., to attend the oral arguments. And the “tiebreaker” came down.

I summed up the story in this piece in Liberty, November 2007.

Downfall of the Tiebreaker

The U.S. Supreme Court’s 5-4 decision of Parents v. Seattle Schools, which outlawed the use of race in assigning kids to public schools, was of special interest to me. I live in the city it concerns, and have a son in the high school where the case began. The school had refused to admit a Caucasian boy because the school was “too white,” and his mother went to court. The outcome of the case, decided in June, will not change anything for my son, and I never thought it would, but I care about the case and have publicly attacked the school district’s position on it.

It was a case with strong beliefs on both sides. My side believes and feels that government should not use race to determine admissions to schools. Though Seattle is a left-leaning city — it votes 80% Democrat — there are many who agree with me on this, though all community leaders publicly oppose it. Some are being politically “correct,” but many believe the public schools are morally obligated to discriminate by race — even, in the case of liberal whites, to discriminate against their own race.

They don’t call it discrimination; they call it desegregating. The two sides in this debate use language differently. The Seattle Schools argued that discrimination is about exclusion, and that its policy was aimed at inclusion and therefore was not discriminatory. The school district’s champion on the Supreme Court was Justice Stephen Breyer. In his dissent, which was signed by Justices Ginzburg, Stevens and Souter, Breyer argued in support of “racial limits that seek, not to keep the races apart, but to bring them together.” But when individuals are in a queue, and there are not places for everyone, allowing someone to cut in line means that someone else loses a spot. Inclusion implies exclusion. It is discrimination still. I agreed with Chief Justice John Roberts when he wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

He was thinking in terms of individuals. The other side thinks in terms of groups. When the Seattle case was at the Washington Supreme Court, the court supported the school district, arguing that it had “a racially neutral plan, which gives no race an advantage over another.” Not “no individual,” but “no race.” This was the same manner of thinking that, a century earlier, had justified segregated schools. In the 1896 case Plessy v. Ferguson, the U.S. Supreme Court had said that separate railcars for black and white passengers had “no tendency to destroy the legal equality of the two races.”

Actually Seattle’s plan was not racially neutral. The mechanism was neutral, but its categories were not. It defined only one race, the white race, which created two categories, white and nonwhite. The school district collects much more detailed racial data than that, and could have had a plan with more than a dozen races, but stopped with white (meaning non-Hispanic Caucasian) and all others. If you were white, your race was a separate category. I don’t recall anyone arguing that this aspect was unfair to whites, because the unfairness was not obvious. The plan did not always disfavor whites, though it disfavored them more often than it favored them.

Each side in this dispute claimed to be fighting for the legacy of Brown v. Board of Education, the 1954 case that ordered the desegregation of public schools. But each side read Brown differently. To Chief Justice Roberts, what Brown forbade was “legally separating children on the basis of race.” He had said this in his confirmation hearings at the Senate, and he said this in his opinion. To him, Brown banned a governmental practice —discrimination. To the other side, Brown proclaimed a social objective — equality — the pursuit of which justified discrimination.

There was a similar divide regarding the terms “segregation” and “desegregation.” To Justice Clarence Thomas, to say that students were segregated implied that someone had segregated them. Segregation implied a segregator. To desegregate meant to undo the immediate consequences of having segregated. To the supporters of the Seattle plan, to desegregate means to manage the racial balance so that it doesn’t “resegregate” by itself. On the day the Seattle Schools lost the case, the district’s in-house attorney said at its press conference that Ballard High School’s white population had risen from 56% to 62% since the “racial tiebreaker” had ended in 2002. Ballard, he said, was “resegregating.”

At Ballard, the tiebreaker had made a difference of 6 percentage points. From this, you might think the Seattle Schools went all the way to the U.S. Supreme Court to defend a policy that made no dramatic difference. And you would be right. That is one of the ironies: numbers-wise, Parents v. Seattle Schools was not about a lot.

It used to be more. In the 1970s, the Seattle School Board adopted a plan to bus thousands of kids around the city to achieve racial balance. Other cities were being ordered by federal judges to do this, and Seattle might have been ordered, too, on account of a lawsuit that had been filed by a civil-rights group.

Seattle’s public schools had never been segregated by law, but Breyer was right when he pointed out that the history was not as simple as Thomas made it out to be. A number of Seattle neighborhoods had excluded nonwhites by using racial covenants. I still have a record of the covenant on the lot my parents bought near Seward Park in 1940. It was reserved for the “white race.” Racial covenants were made unenforceable by a Supreme Court decision in 1948, but Seattle’s racial patterns have tended to persist and be reflected in the schools. Also, the schools were run mainly by whites. White parents elected the school board. White parents were more likely to complain on behalf of their children and get what they wanted. And yet the largely white leadership was imbued with a certain amount of guilt about this, and took the civil-rights movement as its moral touchstone.

So, 30 years ago, the school board began mandatory busing without a court order. Supporters celebrated that it was “voluntary” — and Breyer makes much of this in his dissent. Busing was not really voluntary for the board — there was that lawsuit — and for individual parents and kids it was not voluntary at all. For the city as a whole it was not voluntary, either: the people were never allowed to vote on it. Like affirmative action, it was done.

The first phase of busing lasted from 1977 to 1987. Enrollment in the public schools plunged. It had been over 100,000 and fell to 50,000. Some of this was demographics, but much of it was the movement of families to the suburbs. Seattle is now the second most childless city on the West Coast, after San Francisco—and of the kids remaining, about 30% go to out-of-district public schools or private schools.

Most whites hated busing, and a lot of Asians, blacks and Latinos didn’t like it either. In 1988 it was modified, making it less draconian, but the white leaders of the school district dared not end it. They simply did not have the moral courage to do it. It took a black school board member plus a black superintendent — a former Army general named John Stanford — to end it. Stanford, who died on the job, is a public hero in Seattle for being a champion of academics, particularly reading. He was certainly that. It is not mentioned publicly that he also ended racial busing, though many are privately thankful that he did.

The tiebreaker was the Seattle Schools’ third-generation racial program. There was a reason for having only two racial categories, white and nonwhite. On the one hand, it pits all the other races against the whites, and none against each other. This fits the ideology of the Left, which argues that the real problem of the schools is white “institutional racism” against people “of color.” The Seattle Schools’ administration officially adopted this ideology, posting on its website a neo-Marxist definition of racism that applied only to whites, and that included the “white” value of “future time orientation” and having a culture “emphasizing individualism as opposed to a more collective ideology.” This definition was attacked in 2006 in the blogosphere, George Will hooted at it in his syndicated newspaper column, and the district took it down — though the district did not repudiate it.

For all its radical patina, the tiebreaker was designed to apply to relatively few students. This minimized opposition. In actual effect, it was a leftist principle mostly for looks. It was, as I once wrote, “the perfect program for liberal Seattle.”

Here is how it worked. Any ninth grader could apply to any of Seattle’s 10 public high schools. To apply, you listed a first choice, a second and a third. If your first choice had enough seats for every applicant, you got in. Tiebreaking took effect only for the five schools that were oversubscribed.

There were three tiebreakers. The first was siblings. If you had a brother or sister in the school, you were in.

The second tiebreaker was race. If the school’s ratio of white to nonwhite was more than 15 percentage points different from the average for the district as a whole, and you “improved” the white-nonwhite ratio, you were in.

The third tiebreaker was distance from the school. The school chose the applicants closest to it. When the racial tiebreaker was dropped in 2002, this became the second and final tiebreaker.

When last used, the racial tiebreaker determined the assignment of 307 entering ninth graders. In a district of 45,000 students, this is not a big number. Furthermore, a good share of the 307 would have been assigned to the same school under the distance tiebreaker. That is, the racial tiebreaker determined their assignment but did not alter it. Also, not all the students who gained by the racial tiebreaker were nonwhites. At Franklin High, the district’s most heavily Asian high school, the tiebreaker gave an advantage to whites. All of this was purposeful, so that courts might declare the plan “racially neutral.”

That the actual effect of the plan was small was cited as a key fact by both sides. Justice Breyer made the entirely logical point that if Seattle’s tiebreaker was illegal, “then all of Seattle’s earlier (even more race-conscious) plans must also have been unconstitutional.” But earlier judges had approved busing plans all over the country —therefore, Breyer argued, the vestigal remnant of those plans in Seattle was beyond reproach. Justice Roberts argued that Seattle’s vestigial remnant was as bad in principle as the ones that did more harm, but that the Seattle plan accomplished almost nothing. And therefore, if it didn’t do anything much, how could the Seattle Schools argue that its use was compelling?

Seattle had what appeared to be an educational argument: that racial diversity makes education better. This argument had won over Justice Lewis Powell, the swing vote in the 1978 Bakke case, and had since become the very nectar of political correctness. It was not, however, backed by much in the way of evidence, and it was not the argument you heard if you cornered an advocate in private. Then you heard that the ability to get into a mostly-white school was good for a black or Latino student of academic promise, because the mostly-white schools were better schools. The tiebreaker was good because it benefited non-whites. But the argument the advocates make in public, and that Seattle made in the courts, was that diversity benefited all students.

Justice Roberts didn’t buy it. He pointed out that the district-wide student body in Seattle was 41% white, 24% Asian, 23% black, 10% Latino and 3% Native American. If Seattle’s aim was racial diversity, why have only two categories, white and nonwhite? What was the educational rationale for that? And wasn’t it interesting that Seattle assumed that the educational optimum just happened to be the average white-nonwhite ratio in the district as a whole? (Louisville, which had a similar case and was part of the same opinion, had assumed the same about its black-nonblack ratio.)

Justice Thomas brought up another thing: the African American Academy. If the white liberals who ran Seattle believed so deeply that managing white-nonwhite balance was a compelling necessity, then why did the district offer a K-8 school that was, by name (though not by law) for black students only? Wrote Thomas, “The Seattle school board itself must believe that racial mixing is not necessary to black achievement.”

It was a fine rhetorical point, though really the school board’s acceptance of a black academy is more a matter of politics than belief. Seattle offers a black school because a number of black parents want it, black organizations want it, and the mostly white board was not inclined to disappoint them. Seattle offers several other “alternative” schools, not defined by race, because other parents, mostly white and Asian, want them, and would otherwise defect to the private schools. It offers a special program to kids in the 98-99th percentiles of intelligence, and another for the 93-97th percentiles, for the same reason. School board members embody belief and respond to pressure. They are not always logical.

And judges aren’t, either. Over seven years, the Seattle case went to federal district court, a three-judge panel of the Ninth Circuit Court of Appeals, to the Washington Supreme Court, back to the three-judge panel of the Ninth, then to the full panel of the Ninth, then to the U.S. Supreme Court. At each step, the previous decision was reversed.

Here is another odd thing. Seattle’s policy was much more obviously illegal under the state constitution than under the federal one. The Washington constitution says:

It is the paramount duty of the state to make ample provision for the education of all students residing within its border, without distinction or preference on account of race, color, caste or sex.

This was adopted at statehood in 1889. It flatly bans what Seattle was doing. But the Washington Supreme Court looked the other way.

Seattle’s policy was also obviously illegal under Initiative 200, a clone of California’s Proposition 209. I-200 had been placed on the Washington ballot by petition and passed in 1998 — one year before Seattle’s racial tiebreaker went into effect — with 59% of the vote. I-200 had been opposed by racial groups, community groups, organized labor, organized business and every major media outlet in the Seattle area — and it passed in every county in the state except King County (now Martin Luther King County), where Seattle is. It was tested in court and found constitutional. It says:

The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting.

Everyone knew what this meant. The Washington Supreme Court pretended not to understand it, and argued that the tiebreaker did not discriminate against, or grant preferential treatment to, any group. The state court’s ruling was 8-1. The lone dissenter was a libertarian, Justice Richard Sanders.

The conservative majority at the U.S. Supreme Court sided 5-4 with Sanders, sinking the tiebreaker with that part of the 14th Amendment that says:

No state shall… deny to any person within its jurisdiction the equal protection of the laws.

This is not so clear. Though the 14th Amendment was about racial equality under the law, and there is a good argument that these words should forbid racial discrimination, it is not obvious. The Court’s 5-4 majority has applied the 14th Amendment that way because it wants to, and I am glad it has, but I cannot deny that such a decision is ultimately political. Then again, so is Breyer’s position.

Roberts’ opinion was signed in full by justices Thomas, Scalia and Alito, but only in part by Justice Anthony Kennedy. The four right-leaning justices wanted to slam the door on 40 years of racial management. Kennedy’s position, which now effectively becomes the law, is that the leaders of a school district may look at race, think about it and have some goals regarding it, but they cannot discriminate among individual students. Roger Clegg, president and general counsel of the Center for Equal Opportunity, described Kennedy’s position as allowing “race-conscious means that are nonetheless race-neutral on their face” — and not merely neutral to a group, but to individuals.

Some saw Kennedy’s acceptance of race-conscious intent as a big concession. On the morning of the decision, the Seattle Schools held a press conference and spoke as if they had won. A door that is left open a crack is easier to swing wide than a door that is locked — and yet Kennedy, who opposed the pro-affirmative action ruling in the 2003 Michigan case, did not make it easy to swing the door open any wider.

The Michigan case, Grutter v. Bollinger, had allowed the use of race in admission to an elite law school, which, unlike 9th grade, is not a service the state is obliged to offer to all comers. Grutter allowed the use of race as one part of a “holistic” evaluation — the sort of evaluation a law school has the time and staff to make, but that a public school district does not. Parents v. Seattle Schools was an effort to broaden Grutter to the public schools. Legally, its strategy was to establish that inclusionary racial discrimination was more acceptable under the law than exclusionary racial discrimination.

“The law was evolving that way, and the U. S. Supreme Court turned that back,” said Harry Korrell, the Seattle attorney who argued the case for the parents. Or, as Chief Justice Roberts put it, the case was an effort to “justify the imposition of racial proportionality throughout American society.” That effort was defeated.

Perhaps when the Democrats recapture the White House they will reverse this, but I am fairly optimistic they won’t. Many, many white Democrats are quite ready to accept this decision. Publicly it was taboo to favor it, but now that the “right-wing” Court has told them they can’t discriminate against their own race anymore, they will not complain. Many African Americans will privately admit that they didn’t like assignment by race either. They have other and better strategies to advance their children, and the schools have other and better ways of identifying motivated students of all colors and helping them. The battle over racial preferences in the public schools may be about over.

I could be wrong about that; perhaps I am basking too much in an historic victory. Well, it was a victory.