(concurring) — The majority stretches to read ambiguity into RCW 49.60.400. I believe the dissent correctly concludes the terms “discriminate” and “preference” in the statute are not ambiguous. The only reasonable interpretation of “discriminate” in the context of this stat*691ute is to treat a person or class less favorably than another without regard to individual merit. Webster’s Third New International Dictionary 648 (1993). Granting preferential treatment means to provide some advantage to some person or group not available to others. See majority at 686. These two terms represent two sides of the same coin; the statute prohibits both more favorable and less favorable treatment on the basis of a person’s or group’s race.
However, while I agree with the dissent’s conclusion that there is no ambiguity in the statute respecting these terms, I do not agree that the dissent’s conclusion follows. In my view, the Seattle School District’s open school plan, including its tie breakers, does not favor or disfavor any person or group on the basis of race. All individuals and groups of a particular race are treated the same as those of another race, with the goal of mirroring the community’s diversity in the schools. Sometimes that means that an African American student will prevail in a particular tie breaker situation, and sometimes that means a Caucasian, or Asian, or other racially classified individual will prevail. No particular race is singled out for preferential treatment, and no particular race is discriminated against.
I would find that the statute is unambiguous and that the Seattle School District’s open school plan, including its second tie breaker providing for consideration of race, does not violate RCW 49.60.400. Accordingly, in response to the federal court’s certified question, I would answer “no,” the Seattle School District’s use of a racial tie breaker to determine high school assignments does not “discriminate against, or grant preferential treatment to, any individual or group on the basis of race . . . color, ethnicity, or national origin in the operation of. . . public education” in violation of RCW 49.60.400(1).
I concur in the result reached by the majority.
Alexander, C.J., concurs with Madsen, J.