The plaintiff parents in Seattle have no such litigious legacy to overcome. Over a period of many years, their schools simply drifted into a pattern of segregation by residential area. After the Brown case stunned the South in 1954, Seattle's city fathers came down with a case of the long-distance guilts. Life stirred in the National Association for the Advancement of Colored People and the American Civil Liberties Union. Civic leaders, black and white, embarked upon a high school program of racial realignment as a kind of belated expiation.
The city experimented with small-scale exchange programs in the 1960s. These well-intended efforts yielded to voluntary racial transfers. Then came a plan of school pairings. In 1988 a new plan of "controlled choice" was decreed. In 1994 the school board ordered yet another plan based upon diversity and choice. In 1998 came a constitutionally suspect plan of student assignment by tiebreaker. This is a city that has tried, with much evident success, to develop a school system substantially free of racial animus.
Judge Fisher spoke for the panel majority: "There is no more effective means than a consideration of race to achieve the solution. ... A narrowly tailored plan may explicitly take race into account."
Judge Alexander Kozinski concurred, though he found "something unreal" in his colleagues' effort to apply Supreme Court precedents to Seattle's struggle. "I hear the thud of square pegs being pounded into round holes." The city's plan, he acknowledged, suffers from none of the defects that bear a racist stigma. It seeks to promote integration. It carries none of the baggage the Supreme Court has found objectionable in other cases. In sum, the plan is not only constitutional, it is "eminently sensible."
Judge Carlos T. Bea disagreed. Joined by three colleagues, he filed a powerful dissenting opinion. The idea that children gain from a racially integrated education, he conceded, is a generally accepted notion. It is grounded in common sense; "but that is not the issue here." The issue is "whether this idea may be imposed by governmental coercion, rather than societal conviction; whether students and their parents may choose, or whether the government may choose for them."
A key part of Seattle's plan requires pupil assignment through a tiebreaking plan that operates "solely on the basis of the student's race." The district is thus engaged "in simple racial balancing, which the Equal Protection Clause forbids."
"The racial imbalance in Seattle's schools," said Judge Bea, "results not from de jure segregation nor from any invidious exclusion of nonwhite minorities from the schools. Instead, it results from racially imbalanced residential housing patterns, an issue which the district does not even contend it can alter. Hence the method chosen by the district to impose racially balanced schools is fatally flawed."
The two cases probably will be joined for oral argument early in January. Far beyond Seattle and Louisville, the whole country will be listening.
(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)
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