The Roberts Court: The Struggle for the Constitution (6 page)

The city’s efforts to address the racial problems in its schools without intervention by a federal court ironically would work against it when the Roberts Court, two decades later, on that December morning, heard arguments in the case against the city’s school district.

With busing came white and middle-class flight from the public schools. By the 1980s, the baby boom had peaked, which contributed to declining public school enrollments. Seattle closed ten elementary schools, two middle schools, and two high schools. One of the two high schools was Queen Anne High School, and therein was the root of the problem for parents like Kathleen Brose and Jill Kurfirst. Queen Anne High School was considered the neighborhood school for Magnolia and Queen Anne residents—and it no longer existed.

Throughout the 1980s and the 1990s, the school district tinkered with its busing plan, introducing and expanding a “controlled choice” plan in
which parents could choose from a cluster of schools and applicants who could contribute to a school’s racial diversity were given priority.

In 1995, the man whose vision drew David Engle across the lake to Ballard High School became superintendent. As superintendent, John Stanford, an African American, decided to end mandatory busing. He had two goals: achieve diversity in the public schools and bring back middle-class families.

Stanford ended mandatory busing and moved the district to the “open choice” plan. He and Joseph Olchefske, who was the district’s chief financial officer under Stanford and who succeeded Stanford after Stanford’s death from cancer, knew that minority and low-income parents wanted the same thing as white parents—schools near home—and that kids who had been bused to the north were likely to choose schools in the city’s south, concentrating the highest needs populations in schools with no offset for the change in quality and resources for their education. They devised a new form of budgeting—backpack budgeting—where the district’s money is attached to the student.

“Sure enough, exactly according to plan, there was this big migration of kids, of enrollment, from north to south,” recalled Olchefske. “They took their money with them. And schools in the south started swelling in enrollments and schools in the north started shrinking in enrollments.”
⁵

Under the new policy, ninth graders could choose any high school in the district and as many as possible were given their first choice. If more students chose a particular school than the school had capacity, the tiebreakers were applied.

While Seattle’s school district was working through its new policy, opponents of affirmative action were making headway in the courts and at the polls. Ward Connerly, leader of the successful anti–affirmative action movement in California, was supporting a similar effort in Washington State. On the day the Seattle School District implemented its open choice policy, Washington voters approved Initiative 200, prohibiting racial preferences in public employment, education, and contracts.
That initiative would become one of the bases of the lawsuit by Parents Involved in Community Schools.

Once Seattle students could choose their schools, an open market existed and schools, particularly those in the northern part of the city with excess capacity, began competing for enrollment in order to survive. The northern schools became home to some of the district’s most creative programs, such as biotechnology and theater programs. Non-public school parents began taking notice. Over a period of five to six years, the district increased the percentage of parents choosing public schools by about 10 percent.

“As soon as you go to open choice, you have to confront the fact that some schools are more popular than others and you don’t know year to year which ones,” said Olchefske, referring to variations in programs offered. “In a choice system, you must have criteria for deciding what to do when you have an oversubscribed school. It all would come down to these tiebreakers.”

The tiebreakers—do you have a sibling in the school; do you live in the neighborhood; do you help diversify the school; and what is your distance from the school—worked well for elementary and middle schools. With sixty-five elementary schools, each had a neighborhood. The ten middle schools were put into five regions, with two schools in each, so a student was guaranteed to go to one of the two. But the high schools had to draw from such large areas that there were no “neighborhoods,” and so diversity became the second tiebreaker.

Kathleen Brose had the “elementary and middle school view of the world,” which did not exist for high schools, said Olchefske. The year in which Brose’s daughter was to start high school, parts of Magnolia fell outside of the circle for Ballard High School’s draw area. Pick a street in Magnolia and on one side, parents were happy because they fell within the circle’s boundaries, and people on the other side of the street were unhappy. Any other year, it may not have been a problem.

“Every year there was a different set of angry white moms who would come to my office, and whatever supply-demand imbalance occurred,
they advocated very strongly in lots of different ways to change the outcomes of the assignment process,” he recalled. “They’d say, ‘Draw the boundaries differently,’ or, ‘You said only three hundred kids could go to
X
school, make it three hundred fifty,’ or, ‘Change the tiebreakers a little bit.’ As soon as you get into the business of making one exception, it’s a slippery slope. I was going to enforce the policy as written. It was up to the school board to make any changes.”

And to the school board was exactly where Brose and similarly situated parents—mostly mothers—went.

“We knew a year or so before the assignment implosion that this was going to happen,” recalled Brose. “The Ballard high school had just been remodeled. Everyone was excited about going to a brand-new school. Not only did you have a lot of public school kids who wanted access to the school, you had a lot of private school kids. The school district didn’t understand what the numbers were. We went to the school board and said, ‘Look, there’s too many kids trying to get into this school. And we know you are using the racial tiebreaker,’ and they also had the sibling tiebreaker and the distance tiebreaker. We went to a lot of school board meetings. Kids went and got up. A few of us cried. We were pretty vocal and newspapers covered it quite a bit. And they just basically said, ‘Oh don’t worry about it.’ They were very patronizing.”

Brose had a “legitimate beef,” conceded Olchefske, but, he added, “We could rightfully say to her and others, ‘What do you mean, you don’t get a school?’ We were giving them schools. I do not believe Kathleen Brose was waiting around for a race issue. She just wanted her kid to get into the school she wanted, period.”

Before it was rebuilt, Ballard, ironically, was not a school that anyone in Magnolia or Queen Anne would have sought out. It was considered a terrible school. Although located in a white neighborhood, it was predominantly minority. It also was viewed as unsafe because there had been a drive-by shooting that resulted in the death of a student.

In fact, as one Ballard neighborhood resident and parent, critical of the lawsuit, blogged on a “save seattle schools” blog: “If the principle
of attending one’s neighborhood school is so important, why weren’t people suing to get into Ballard High School when the ceiling tiles were falling on people’s heads?”

With a new building, a biotech program, and a creative new principal, Ballard became the rising superstar.

For the 2000–01 school year, about 82 percent of students selected an oversubscribed high school as their first choice, and only 18 percent picked one of the undersubscribed high schools as a first choice.

The school district estimated that without using the race tiebreaker, the non-white composition of the ninth-grade class that year at Franklin, a south end high school, would have been 79.2 percent, and in north end Hale, 30.5 percent; Ballard, 33 percent, and Roosevelt, 41.1 percent. But with the tiebreaker, the actual non-white populations at the same schools, respectively, were 59.5 percent, 40.6 percent, 54.2 percent, and 55.3 percent.
⁶

The tiebreaker actually was race-neutral, according to Olchefske and others. There were schools in Seattle that were minority-dominated that white students wanted to attend, such as Franklin, which had an advanced placement program, and there were white-dominated schools that minority students wanted to attend. “This wasn’t like people tried to paint it—affirmative action, get minority kids in the best schools,” insisted Olchefske.

Before it was abandoned in 2002, the race tiebreaker had been used in only a few schools and it accounted for an estimated 300 students out of 3,000 assignments to the ninth grade in 2000–01, the year that Brose’s daughter entered high school. The small number of students affected also would weigh against the district in the Roberts Court.

The school board knew that by going to open choice, there would be a decrease in diversity, given the residential patterns of the city. However, unlike some cities at the time, race was not simply black and white in Seattle. A port city, the residents were white, African American, Latino, Asian, Native American, and combinations thereof.

In certain neighborhoods, without the race tiebreaker, students were
going to be in racially concentrated schools. “The promise was not to require that, but to give students options,” said Olchefske. “I think that was an important principle to defend. The race-based tiebreaker was a clear, practical provision that addressed those concerns.”

But despite the melting pot race and ethnicity of Seattle residents, the school board created a very blunt instrument for implementing the diversity tiebreaker: students were classified as “white or non-white.” That too would create serious problems for the district when the Roberts Court took up the Seattle lawsuit.

It was too blunt an instrument for Kathleen Brose and her group. “In Magnolia, we had a group of kids who had been together since kindergarten,” said Brose. “It was diverse, not a lot, but we had kids who came from Eastern Europe. These kids played together, were on sports teams together. We didn’t look at these kids and give them hyphenated names. And these kids weren’t looking at skin colors; they were just friends. When the school district said, ‘You are going to the right and you to the left,’ all of a sudden these kids are asking, ‘Why does it matter?’ That was really tough on these kids. I think that’s a lesson they will take with them for the rest of their lives.”

•  •  •

While the Seattle school board held its ground on its choice and diversity plan, a school district clear across the country and whose fate would become entwined with the Seattle plan in the U.S. Supreme Court, also held firm to the success of its school integration efforts.

Unlike in Seattle, litigation in the early 1970s led to a federal court ruling that schools in Louisville, Kentucky, were segregated by law—so-called de jure segregation. In July 1975, a federal appeals court ordered a desegregation plan for the Jefferson County School District, which includes Louisville, “to the end that all remaining vestiges of the state imposed segregation shall be removed from the said school district.”

In the 1975–76 school year, 22,600 students (half black, half white) out of 130,000 were bused. The plan was resisted by groups of parents,
unions, and the Ku Klux Klan, but supported by some churches, citizen groups, and government. There were boycotts, blockades, and riots.

Like Seattle, the school district modified and adjusted its integration plans over the years, moving from busing to programmatic options, including magnet schools in the inner city, but with court approval. After twenty-five years under judicial supervision, the district in 2000 was found to be “unitary,” that is, it had achieved integration, and the court desegregation order was dissolved.

By 2000, community support for integrated schools had grown strong. The district was considered a model for the rest of the country, and business, parents, and community groups shared a belief in the value of diversity in education.

Carole Haddad, a white parent, lived through the turmoil that followed the court-imposed desegregation order. “There were fires in the streets,” she recalled in a National Public Radio interview. “We had to put monitors and police on buses because bricks were being thrown at students going into certain areas. Over at the school behind my home, they brought in the National Guard, and used it for a bomb squad.”

Upset and furious, Haddad decided to run for election to the school board to oppose the plan. But more than two decades later, she had become a supporter. “I’ve come a long way and taken a big turn since then,” she explained. “The parents really like it.”
⁷

However, without a court-ordered plan in place, there was concern that resegregation was likely.

As the school district later explained to the Roberts Court, “Jefferson County housing is substantially segregated along racial lines.” The assignment of district students to “neighborhood schools”—the same goal being sought by Seattle’s PICS organization—would lead to a substantial number of racially segregated schools, according to the Kentucky district.
⁸

As Kathleen Brose prepared to go to court to challenge the Seattle diversity tiebreaker, the Jefferson County school board voted to maintain the essential outlines of its integration plan and to implement a complex
system of “managed choice” in student assignments. The plan provided that each school (except preschools, kindergartens, alternative and special education schools, and self-contained special education units) was to have not less than 15 percent and not more than 50 percent black students. The affected student population was 34 percent “black” and 66 percent “other” (terms used in the court desegregation decree, but which still reflected the community’s racial composition).

Crystal Meredith and her five-year-old son, Joshua, moved into the school district in August 2002. She tried to enroll her son in kindergarten at a school about a mile from their home, but she was late—classes in that school had been underway for seven weeks. The district informed her that the school was full. She then sought to enroll him in another nearby school which was not in the designated “cluster” of ten schools for her area. Her request was rejected because, she was told, his assignment would upset the school’s racial balance. Her son was assigned to another school, within her cluster, which was about ten miles from home.