Sometimes, I think the Washington Supreme Court just makes things up. Consider the case of Initiative 200 and the Seattle Schools.
Here is how Seattle admits first-time students to high schools. They can apply to any of the 10 schools in the city. If there is a queue, the district uses tiebreakers. The first tiebreaker is whether the student has a brother or sister there. Now, the second tiebreaker is distance from the school. Before this lawsuit, the second tiebreaker was race and the third was distance.
Seattle keeps statistics on all sorts of ethnic groups, from Gypsies to Samoans to Alaska Natives. Its racial tiebreaker recognized only two races, "white" and "nonwhite." Under this primitive mechanism, if the school was more than 75 percent "white," the "nonwhite" applicant got in. If it was more than 75 percent "nonwhite," the "white" applicant got in.
Parents sued, and the question landed at the Washington Supreme Court. The question was: Do assignments by race violate Initiative 200, which says: "The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race ... "
No ballot measure of the past 20 years was simpler than this. Clearly, it prohibits what Seattle Schools was doing. And yet, Justice Tom Chambers, writing for the 8-1 majority, said the racial tiebreaker was OK because it was "a racially neutral plan, which gives no race an advantage over another."
By that standard, it was also a racially neutral plan when Louisiana required passenger trains to have separate cars for "white" and "colored." So ruled the U.S. Supreme Court in 1896, when it said that compelled separation had "no tendency to destroy the legal equality of the two races."
The liberals who wield the sword of compulsion think it is very unfair to compare their warm intentions to the bad people of 1896. But they are the same in this respect: They want government to affix racial labels to Americans and order them here and there.
When asked to justify this institutional racism, liberals speak of groups. Notice that Justice Chambers writes that the Seattle plan "gives no race an advantage over another." He cannot say it gives no individual an advantage, because it does. And I-200 specifies individuals. So do our federal and state constitutions.
The liberals justify their abandonment of America's individual-rights tradition by the overriding need for "diversity." What can one say of this? First, that a lot more people say they favor this diversity than actually seek it out; second, that Seattle already has it, more than almost any other place in the state; and third, that the racial tiebreaker does precious little to produce any more of it.
The last year in which the racial tiebreaker was used, it changed the assignments of 300 students. That is often described as "10 percent of assignments," but it is only 2 percent of all public high-school students in Seattle.
Seattle Schools used to be serious about mixing the races. Its program was called busing, and people hated it. It almost wrecked the public schools. It went on for years, and the white people in charge were too terrified to repeal it. It took a black superintendent and a black School Board member to pull the chain on it.
That left the district without institutional cover. Politically, it needed that, but in a form that a majority of the Seattle voters could stand. It needed something that sounded big but that victimized only a few. Hence, the racial tiebreaker, a program liberals can feel good about, get righteous about and go to court about, but that does almost nothing.
The perfect program for liberal Seattle.
The task of the Washington Supreme Court was to maneuver this program past a law that flatly forbade it. Done.
The case goes back now to the 9th Circuit Court of Appeals, a federal court, for a final decision. The federal courts will have to follow the Michigan ruling by Justice Sandra O'Connor, which probably means the bureaucrats who rule us will get to do what they want.
Bruce Ramsey's column appears regularly on editorial pages of The Times. His e-mail address is email@example.com