The Roberts Court: The Struggle for the Constitution

by Marcia Coyle

  Ballard was his dream job. Engle lived in the Ballard neighborhood, could walk to the high school, and was given the opportunity to create a world-class academic program in a brand-new facility. The old high school had been torn down and rebuilt into a state-of-the-art facility, and its popularity among parents was on the rise.

  “I felt, as a principal, the race tiebreaker allowed me to bring into play a dynamic that I was told by my students over and over again was a real positive,” he said. “When I moved the [student] wait list into the school, I looked at that. I thought it was an asset. I had just created an international program where I didn’t have the kind of diversity that would have made the program really rich. I wanted to create a school that didn’t give lip service to the notion of diversity.”

  When Engle became principal in 2000, the school’s racial composition was about 70–30 white. When he left, he had moved the composition to about 57–43 white.

  “The first week I was on the job I had a visit from parents who ended up being in the group behind the lawsuit. They lived outside of the Ballard neighborhood and wanted me to move the wait list so their kids could come to Ballard. I said it couldn’t happen. I had full capacity. I knew there would be issues around that.”

  Two years later, after the parents’ group, known as PICS (Parents Involved in Community Schools), won its first court victory, Engle felt he personally needed to do something concrete to show his commitment to diversity and to the use of the race tiebreaker as a tool that principals should have available to them. He announced his resignation to his students in the high school auditorium and explained why. His action stunned parents and colleagues, some of whom applauded him while others criticized him.

  Finding another principal’s job after his resignation was “a little tough” for a while, he recalled, describing himself as somewhat “politically radioactive” because of his action. But the district offered him a position advising its high schools and he accepted.

  “I worked with all ten of the high schools at some point,” he said. “The inequities in the high schools were shameful. The poorest quality academic programs were reserved for predominantly schools of color, across the board. For me, that was the larger shame. Seattleites could be pretty smug about that, saying, ‘Those kids want to go to neighborhood schools.’ ”

  After about two years working with the district’s high schools on a variety of problems, Engle moved to Bellingham, Washington, to take a position as a high school principal.

  He found himself standing on the Supreme Court plaza that December 2006 morning because of a phone call from a Ballard parent who asked Engle if he was going to the arguments. “I said no, and this parent said, ‘I’m going to buy you a plane ticket and you’re going.’ It was the right thing to do,” he admitted. “Ballard was at the heart of this controversy.”

  Kathleen Brose was also at the Supreme Court that morning with another parent, Jill Kurfirst, but they did not have to wait in line for a seat. Brose, a determined, down-to-earth mother of two daughters, had been the face, voice, and driving force of Parents Involved in Community Schools for the last six years. She had attended every court hearing on the lawsuit during those years with the group’s main lawyer, Harry Korrell of Seattle’s Davis Wright Tremaine. She and Kurfirst had arrived a day early at the Supreme Court.2

  Brose, who teaches piano in her home, became involved in the school district’s high school assignment plan in 1999 as her older daughter prepared to enter her freshman year in 2000. Under the plan, known as “open choice,” students and parents ranked their choices of the city’s ten public high schools. The district used three tiebreakers to assign students to schools that could not accommodate all of those seeking admission: whether the applicant had a sibling in the school; how the applicant would affect the racial composition of the school; and the applicant’s distance from the school.

  Brose’s daughter, who is white, did not get into any of her top three choices, all in majority-white north Seattle: the brand-new Ballard, which was closest; Nathan Hale, a little farther north; and Roosevelt, also north of Ballard. She was assigned to her fourth choice, Franklin, in predominantly minority south Seattle, but because it had no orchestra program (she played the cello), she transferred to Ingraham, in northeast Seattle. Ingraham was one of the least popular schools and was located at the city limits, far from her home. As a result of its location, Ingraham should have been an elite white high school, but it had lagged behind in educational quality for years. Brose’s daughter stayed there only a year because the district in the meantime had opened a smaller high school closer to where the family lived, and their daughter graduated from that school. But during her three years at Seattle Center High School, she had to rely on her mother to drive her to and from Ballard, where she played in that school’s orchestra.

  Jill Kurfirst’s son, also white, had qualified for admission to Ballard’s biotechnology program, but he was not assigned to Ballard—his first choice—nor to his second and third choices. He was assigned to Ingraham.

  In 2000, when Brose and her group were fighting with the school board over the assignment plan, the most popular choices for incoming ninth graders were Ballard, Roosevelt, Franklin, and Hale.

  As Brose prepared to enter the Supreme Court for arguments in the school challenges, she believed that many people still misunderstood what was at the core of the two cases. The day before, she had faced “some rather aggressive” media interviews, she recalled.

  “A lot of people thought we were racists and we wanted our kids to stay in these lily-white schools and our schools aren’t that way if you look at the statistics,” she said. “I said we like diversity but we like neighborhood schools. I tried to hammer that over and over. I didn’t want parents to go through this. I’ve been told I am as tenacious as a bulldog and I am. I said this before I even knew who Sarah Palin was, ‘I’m a momma bear just protecting her cubs.’ I said, ‘This race tiebreaker, this just isn’t right.’ ”

  The Brose family lived in Seattle’s Magnolia neighborhood, and Kurfirst, the other mother with Brose at the Supreme Court, lived in nearby Queen Anne neighborhood. Seattle is shaped like an imperfect hourglass. The Ship Canal, a narrow waterway, cuts the city in half from Lake Washington to the east, through Lake Union, and on to the Puget Sound to the west. The canal has been described by some as Seattle’s “Mason-Dixon line” because the city’s predominantly white neighborhoods are north of the waterway, and to the south are the ethnically and racially diverse central district and south end. Magnolia, the city’s second largest neighborhood, sits on a hilly peninsula northwest of the city’s downtown area. It is home to some of the city’s wealthiest residents, whose houses command sweeping waterfront views. By and large, however, it is an upper-middle-class community of about 22,000, with median income of about $69,000 and median house values of $534,000. The neighborhood’s racial composition is 87.4 percent white; 5.8 percent Asian; 1.6 percent African American; 0.6 percent Native American; 0.3 percent Pacific Islander; 1 percent other races, and the remainder from two or more races.3

  Magnolia is isolated geographically from the rest of Seattle and its residents get into the city by crossing one of three bridges. Queen Anne, to the southeast of Magnolia, borders the north end of the center and covers the city’s highest hill. The community has a population of about 32,000, including a large number of young single adults. The median income is $49,000 and the racial composition is similar to Magnolia’s.

  Unlike Jefferson County School District in Kentucky—the target of the second school challenge in the Supreme Court that December morning—Seattle had never been under a federal court order to desegregate its schools, but that did not mean there was no problem in the schools.

  Although Brown v. Board of Education outlawed segregated schools in 1954, the hard work of desegregation did not begin until almost a decade later and then often under orders by federal courts. In 1962, Garfield High School, located in Seattle’s
central district, became the first predominantly black high school in the state, with more than 51 percent black students. More than half of the city’s other high schools had no more than five black students. That grim picture triggered a lawsuit against the school district by the Seattle chapter of the NAACP. The district, settling the suit out of court, appointed a committee to address “gross racial imbalance” in certain city schools. That imbalance mirrored Seattle’s long history of housing segregation.4

  A voluntary student transfer program was launched, and at its peak nearly ten years later 2,604 students participated, of whom 2,200 were black. There were additional attempts to promote voluntary integration—magnet programs at certain schools, for example. But by 1977, the district claimed that twenty-six schools remained racially imbalanced.

  In that year, the NAACP filed a complaint with the U.S. Office of Civil Rights, and the American Civil Liberties Union and the Church Council of Greater Seattle threatened to file a lawsuit. By the end of that year, the school board had approved a mandatory busing plan, and the city became the first in the nation to adopt a comprehensive school desegregation plan without the sledgehammer of a federal court order.

  Two months after the plan took effect, 61 percent of Seattle voters and 66 percent of voters statewide approved an anti-busing initiative sponsored by the Citizens for Voluntary Integration Committee. The U.S. Supreme Court in 1982 found the state initiative unconstitutional.

  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 wante
d, 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.