Free The Roberts Court: The Struggle for the Constitution by Marcia Coyle Page A

when the PICS lawsuit camealong, at least a year and a half later, we were asked to defend against it,” he said. “We told the school district we could defend this and we turned out to be right.”
    Was the lawsuit at heart only about the parents’ desire for neighborhood schools? “Yeah, now that I like my neighborhood school,” added Madden. “When I didn’t like my neighborhood school, it was all about going to some other school. That’s the one piece of hypocrisy in their pitch. You ask those parents if any of them went to Ballard High School. None of Harry’s clients was a Ballard alum. None of them could say, ‘That’s been our neighborhood school for years.’ ”
    After the lawsuit was filed, the school board and the parents tried mediation with another federal judge in an effort to settle the lawsuit. After several hours of the judge shuttling back and forth between the parents and the school board members, the judge told them it was “highly likely” the case would go to the U.S. Supreme Court.
    “When he said that, I had some chills go up my spine,” said Brose. “I believed it right then and I believed we would win.”
    As the lawsuit moved forward, some of the parents in the group grew tired of it and moved on, she recalled, adding, “I told Harry, ‘We’re just going to take this as far as we can.’ He said okay, and we did. We had nothing to lose. It wasn’t just for my kids, it was for this whole city.”
    The next five years were a roller-coaster ride through the state and federal court systems for both sides. The first decision in the lawsuit came in April 2001 by U.S. District Judge Barbara Rothstein, who ruled for the school district on both the state claim involving Initiative 200’s application and the federal claim involving the Fourteenth Amendment’s equal protection clause.
    The district’s policy, she wrote, is a “deck-shuffle,” and as such “does not, strictly speaking, prefer one race over any other. All children in the district are subject to the plan, and children of all races may attend at least one of the district’s popular schools. At the same time, the plan maximizes the effect students’ choices have on their assignments. Thesefacts render the open choice policy in stark contrast to the court-sanctioned mandatory busing plans of earlier decades.”
    Korrell and his partner, Dan Ritter, appealed to the U.S. Court of Appeals for the Ninth Circuit, and in April 2002, a three-judge panel reversed the trial court’s decision. It issued an injunction preventing the use of the race tiebreaker in assigning ninth graders for the 2002–03 school year. But two months later, the panel withdrew its decision and injunction. The federal court asked the Washington Supreme Court whether the race tiebreaker violated the state law implementing Initiative 200.
    At that point, the school district decided to “deactivate” the race tiebreaker, and David Engle, the excited new principal of bright and shiny Ballard High School, decided to resign in protest.
    “We never knew when rulings were coming down,” explained Superintendent Olchefske. “If a ruling came down that de-authorized the use of the tiebreaker, we would have to redo the entire choice process, which would have driven the district into chaos. So we said we will deactivate that tiebreaker. In the overall scope of things, it is a technical change not very difficult to implement—just change the code on the computer.”
    The PICS’s lawyers and the school district’s lawyers faced off again that fall in the Washington Supreme Court. They would have an eight-month wait for that court’s ruling.
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    Three days before the Seattle arguments in the Washington Supreme Court, Crystal Meredith, the Louisville, Kentucky, mother who could not get her son Joshua into the kindergarten of her choice, joined three other parents in filing a lawsuit challenging the Jefferson County school board’s assignment