The Ninth Circuit Court of Appeals just affirmed racial discrimination in the Seattle school system. Parents Involved in Community Schools v. Seattle School District No. 1, 2005 U.S. App. LEXIS 22515 (9th Cir. Oct. 20, 2005) (en banc). This case consisted of an attempt by parents to end racial profiling in public high school admissions. The Ninth Circuit heard the case before an en banc panel of eleven judges, and rendered a verdict in favor of race-based placement by a 7-4 margin. Surprisingly, the prominent libertarian Judge Alex Kozinski even sided with allowing a race-based criterion, in the name of experimentation.

Like most cities, Seattle has demographics whereby ethnic groups cluster in different sections of town. Since the 1960s, due to pressure from groups such as NAACP and the ACLU, the city experimented with busing, student transfers, and other measures designed to equate racial proportions in each of the district's ten high schools. Finally, in 1998, the district settled on its current program.

Students entering ninth grade are allowed to rank the high schools in the district in order of preference. If a school is oversubscribed, the District uses a series of tiebreakers: sibling attendance, racial balance, distance to the school from the student's home, and a random lottery. Students eliminated by the tiebreakers are considered for their next choice school or for the school closest to their home.

The racial tiebreaker, the object of contention in the suit, is used whenever a specific school deviates from the white/"nonwhite" ratio of the district at large by plus or minus 15%, and is applied until that school's racial balance falls to within the 15% range.

The tiebreaker has resulted in substantial shifts in the racial makeup of the oversubscribed schools. Although Seattle has several distinct ethnic groups, the district lumps Asians, Hispanics, and American Indians in with blacks as "nonwhite applicants."

Parents Involved in Community Schools was formed by parents whose children were actually or prospectively barred from their first choice of high school by the tiebreaker program. They sued to have the racial-balance tiebreaker abolished as contrary to the 14th Amendment, Washington state law, and the Civil Rights Act of 1964. The Ninth Circuit, which Rush Limbaugh has aptly called the "Ninth Circus," held that government can use race as an admissions criterion in order to bring racial proportions to within an arbitrarily desired range (in this case 40% white, 60% "nonwhite").

While one might expect this practice to have been precluded by the recent Supreme Court opinions disfavoring affirmative action at the University of Michigan, the Ninth Circuit held that Seattle has a "compelling interest" to make decisions based on race. By finding a compelling interest, the Ninth Circuit thereby allowed what would otherwise be unconstitutional.

With the Ninth Circuit's approval, one's right to be free of racial discrimination is now subjected to collectivist goals. The Court implicitly embraced the discredited view that whites and "nonwhites" have certain attitudes, perceptions, and viewpoints simply because of their ethnicity. Worse, the district treats all "nonwhite" ethnicities as representatives of each other.

The Ninth Circuit refused to recognize that our productivity and our 14th Amendment depend on individual merit rather than on skin color. Because of this decision, some Seattle students will remain excluded from the school of their choice solely based on the color of their skin. Judicial supremacy has again rewritten the words of our Constitution.