The Roberts Court: The Struggle for the Constitution (8 page)

Browne, a senior attorney skilled in trial and appellate work, joined in 1985. She made her reputation in California defending Proposition 209 (the California Civil Rights Initiative), which state voters approved in November 1996. The initiative amended the state constitution to prohibit race- and gender-based preferences in public contracting, public employment, and public education. The initiative was funded by the California Civil Rights Initiative Campaign, led by the University of California regent at the time, Ward Connerly. Connerly subsequently took his successful anti–affirmative action campaign to Washington State, which approved Initiative 200 in 1998, and to Michigan.

Fifteen years after the adoption of Proposition 209, it is still the subject of litigation in state and federal courts, as is the Michigan initiative adopted in the same year.

Korrell’s conservative bona fides were firmly established before the Seattle lawsuit reached the U.S. Supreme Court. Although his law practice focused on employment law, he became known to Seattleites through election law activities. He was volunteer lead counsel in Washington State’s Lawyers for Bush-Cheney 2004, a national network of Republican lawyers ready to go to court if the presidential race became contested in any state, as it was in Florida in 2000. He also was one of the lead attorneys for the state Republican Party when it unsuccessfully challenged the outcome of the 2004 governor’s race, in which Democrat Christine Gregoire defeated Republican Dino Rossi by 129 votes.

Today, Korrell sits on the Federalist Society’s national and Seattle executive boards. The society was founded in 1982 by law students who wanted to challenge the liberal orthodoxy on law school faculties and in the judiciary as well as the legacies of the Warren and Burger Supreme Courts.

The society, supported financially by conservative foundations such as the John M. Olin and Sarah Scaife foundations, experienced phenomenal growth in its first decade, and its influence spread primarily through its network of outstanding conservative litigators, such as Theodore Olson, who successfully argued
Bush v. Gore
, and politically connected lawyers, such as former Reagan attorney general Ed Meese. Many of the top positions within the George W. Bush administration were filled with society members.

Whether Chief Justice John Roberts Jr. was ever a society member provoked a mini-controversy during his Supreme Court nomination hearings in 2005.
The Washington Post
obtained a copy of the society’s
Lawyers’ Division Leadership Directory
for 1997–98, which listed Roberts, who was then in private practice, as a member of the steering committee of the Washington chapter. The Bush White House, at the time, said
Roberts had no memory of being a member of the society or its steering committee, although he did participate in some society activities.

Korrell was a newly minted partner in Davis Wright and barely into his thirties when he attended his first meeting of the PICS group at the home of John Miller, one of Seattle’s former—and rare—Republican congressmen. The controversy over school assignments had not been on Korrell’s radar screen previously; his own children were not yet of school age. But when the call came from Dick Deran telling him that some parents wanted to meet with him, Korrell was interested.
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Notices for student assignments for the 2000 academic year already had been sent out by the school district. A court order halting the assignments was the only way to undo them, and Korrell considered it unlikely that a court would issue such an order.

During the meeting at Miller’s home, Korrell laid out what the parents would have to do and the basis of a lawsuit.

“This was all new to us,” recalled Brose, who was there with six or seven other parents. “This small group decided we wanted to go forward.”

Korrell thought the law was clear and that the dispute would end quickly—either the school district would change the assignments or a court would rule for the parents.

On the law, Korrell looked to Washington voters’ approval of the anti–affirmative action Initiative 200 in 1998, prohibiting preferential treatment on the basis of race and gender in public contracting, employment, and education. Initiative 200 was “spot on” for the school dispute, he thought. And Korrell examined the Rehnquist Court’s race rulings, which—although involving affirmative action, not school integration, and generally sharply divided rulings—“did not acknowledge some kind of diversity exception to the equal protection clause,” he concluded.

“This seems pretty straightforward,” he told the parents. “We’ll make a demand, and if the district won’t either change its policy or
make some sort of accommodation for these particular parents, we will proceed in district court and get a decision pretty early on.”

Korrell thought the school district would recognize it had made a mistake, 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.
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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.”
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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.”
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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, when the PICS lawsuit came
along, 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. These
facts 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 plan. Meredith claimed her son was denied admittance to his “neighborhood” school; the other parents said their children had been denied entry into countywide magnet traditional schools.

The two main lawyers for the parents and the school board were as different as Kentucky moonshine and Booker’s bourbon whiskey.

Meredith’s attorney, Teddy Gordon, a native of Louisville, was a sole practitioner—outspoken, some would say, bombastic, and emotional, but passionately dedicated to the lawsuit. He first became involved in the school assignment plan in 1998 when a group of African American teachers approached him and said they believed the plan discriminated against minority students who were denied admission to the Central High School magnet program. He won a federal court ruling that race could not be used in determining admission to magnet schools. That high-profile victory made him the logical choice of counsel for future unhappy parents.
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Francis Mellen and his law firm started representing the county board of education in the late 1970s. A quiet, deliberate-spoken attorney, Mellen had been advising the board on the student assignment plan and its revisions for a number of years. His firm’s Louisville office—one of eight—employed about one hundred attorneys.

Both lawyers had children who had attended the Louisville public schools. Gordon earned his law degree at night at the University of Louisville Law School; Mellen graduated from Harvard Law.

At a pretrial conference on Gordon’s lawsuit, U.S. District Judge John Heyburn II asked both sides to delay a trial, and both agreed to his request. Judge Heyburn sought the delay because he wanted to wait for the U.S. Supreme Court’s decision in one of the most closely watched cases of the 2002–03 term, one that could be key to answering the question raised by the Louisville and Seattle lawsuits. The Rehnquist Court had agreed to decide whether race-conscious admissions policies at the University of Michigan Law School and undergraduate program violated the Constitution’s equal protection clause.