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

and so he sent a demand letter containing a deadline for a response. When the district didn’t meet the deadline, Korrell filed the lawsuit in federal court on July 18, 2000.
    Korrell agreed with Superintendent Joseph Olchefske’s assessment that before the lawsuit was filed, there was little controversy on the whole over the school’s open choice plan.
    “As a general matter, people were able to get into the schools they wanted to go to,” recalled Korrell. “[The district] shuffled a couple of hundred students around out of twelve thousand. You’re not making any material change in the diversity composition of the schools. But the price you pay is subjecting several hundred students to the indignity of being told you can’t go into this program because you have the wrong skin color. That’s too high a price to pay for what you get, which is almost nothing.”
    As soon as the lawsuit was filed, the community reaction was divided. Korrell felt that “polite opinion” in Seattle was against the suit. Editorial writers, education reporters, law professors, judges, and major law firms opposed it. Korrell’s own law firm was somewhat reluctant to get involved but agreed to take on the lawsuit as a pro bono matter.
    With Korrell taking the lead on the lawsuit, Sharon Browne and the Pacific Legal Foundation moved into a key supporting role. At each significant step going forward, she and the foundation would file a brief backing up the parents’ arguments. “Whenever there was a dispositive motion being filed, we would file an amicus curiae brief and argue that this choice program was really just racial balancing,” she said, adding that the Supreme Court in earlier school desegregation decisions had made clear that racial balancing was unconstitutional. 4
    Although not everyone on the school board supported the race tiebreaker, the board believed its use was constitutional and should be defended.
    “The School Board clearly has said that to prepare kids for the world they’re going to enter they need exposure to a diverse environment,” said Superintendent Olchefske on the day the lawsuit was filed. “That doesn’t happen by accident.” 5
    The board’s confidence rested partly on the fact that it had looked into the legality of using race-conscious measures shortly after Washington’s Initiative 200 was adopted by voters. The board turned to Michael Madden of Seattle’s Bennett Bigelow & Leedom who, at the time, had been defending the use of race as a factor in the admissions policy of the University of Washington School of Law—the actual target of the Initiative 200 campaign.
    The school board was doing its periodic review and update of the school assignment plan and wanted to know if Initiative 200 required it to abandon any race-based plan. It wondered if it had accomplished as much as it could with race-based measures or if there was room and a need for something more.
    “I think the majority view of the board at that time was they were sufficiently concerned about disparities in opportunities between the north end and the south end that they weren’t willing to completely let go of race-based assignments,” said Madden, a big man with a broad, friendly face topped by a shock of white hair. “They were going to use race as a tiebreaker.” 6
    The board was confident it could continue to use race because of the U.S. Supreme Court’s 1982 decision finding unconstitutional a statewide initiative mandating a neighborhood school policy. The initiative was intended to halt Seattle’s mandatory busing plan.
    Madden advised the school board that the terms in Initiative 200, such as racial preferences and discrimination, would not apply to the school assignment plan. If they did, he added, there was a credible argument that if the initiative prohibited assignments for the purpose of desegregation, it would be unconstitutional under the Washington State constitution.
    “Having made that bold prediction,