Parents Involved in Community Schools v. Seattle School District, No. 1

GRABER, Circuit Judge,

specially concurring.

I concur specially because the racial tiebreaker that Seattle School District No. 1 uses to assign some public high school students to desirable schools plainly “grant[s] preferential treatment” to those students on the basis of their race, in violation of Initiative 200, which is codified as Washington Revised Code § 49.60.400 (“I-200”).1 Nothing in the United States Constitution or the Washington Constitution forbids the citizens of Washington from enacting a law like 1-200 or requires that the law be interpreted to allow a racial tiebreaker in the circumstances presented here. I am aware of no relevant case constitutionally requiring a racial tiebreaker in the absence of de jure school segregation and in the absence of any affirmative act on the part of a school district to create school segregation.2 To the extent that racial segregation exists in Seattle’s high schools, as the majority explains, it results from general residential patterns only.

I write separately because, in my view, the majority errs in two fundamental ways when it discusses federal law as an aid to interpreting 1-200. First, in these circumstances the Washington Supreme Court would not turn to federal law for interpretive guidance; this fact makes the discussion of federal law surplusage. Second, the majority reads federal precedent too narrowly.

A. The Washington Supreme Court Would Not Use Federal Precedent Here.

Our task is to interpret 1-200 as we believe the Washington Supreme Court would. NLRB v. Calkins, 187 F.3d 1080, 1089 (9th Cir.1999). In construing a state statute, that court generally limits its reliance on federal law to those instances in which the two statutes are worded in essentially the same way. The portion of I-200 that is significant here has no analogue in federal law, so there is no federal case construing a substantially similar provision.

The genesis of this limiting principle appears to be Black Ball Freight Service, Inc. v. Washington Utilities & Transpor*1254tation Commission, 74 Wash.2d 871, 447 P.2d 597 (1968), which concerned the regulation of motor carriers. The Washington Supreme Court noted there that “[t]he statute, as amended, is substantially the same as the federal statute appertaining to the issuing of permits by the Interstate Commerce Commission ... to interstate motor carrier applicants. 49 U.S.C.A., § 307 (1968).” Id. at 599 (emphasis added). The court then turned to federal cases decided under the parallel provision to the extent that it considered them to be “cogent.” Id. To the same effect, see Drinkwitz v. Alliant Techsystems, Inc., 140 Wash.2d 291, 996 P.2d 582, 589 (2000); Inland Empire Distribution Sys., Inc. v. Utils. & Transp. Comm’n, 112 Wash.2d 278, 770 P.2d 624, 627 (1989).

The Washington Supreme Court expressed this limitation again in Bravo v. Dolsen Cos., 125 Wash.2d 745, 888 P.2d 147 (1995), a case involving the meaning of employees’ “concerted activity” in a labor law context. The supreme court noted: “Although federal authority is not controlling in interpreting state statutes, it can be persuasive where the texts of both federal and state laws are similar.” Id. at 153; see also Pulcino v. Fed. Express Corp., 141 Wash.2d 629, 9 P.3d 787, 799 (2000) (stating that, because “the language of the [National Labor Relations Act] is very similar to the [state statutory] language here,” the court “considers persuasive the federal cases interpreting” the NLRA).

This requirement of substantially similar text has carried over to the anti-discrimination context as well. In Roberts v. Atlantic Richfield Co., 88 Wash.2d 887, 568 P.2d 764, 767-68 (1977), the court noted the similarity of the federal and state statutory provisions before turning for guidance to federal cases. More recently and more explicitly, the Washington Supreme Court applied the requirement of textual similarity in Farnam v. CRISTA Ministries, 116 Wash.2d 659, 807 P.2d 830 (1991). There, the court held that, “because RCW 49.60 substantially parallels the federal law against discrimination, Title 7 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., Washington courts have looked to the interpretation of the federal law in construing RCW 49.60.” Id. at 838 (footnote omitted). Before turning to the federal cases, the court quoted the “parallel” federal statutory text. Id. at 838 n. 6; see also Ellis v. City of Seattle, 142 Wash.2d 450,13 P.3d 1065, 1071 (2001) (stating that the Washington whistleblower statute “has an analog in federal antidis-crimination law, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a),” before citing a federal case interpreting that analogous federal statute).

Perhaps the most important case for present purposes is Marquis v. City of Spokane, 130 Wash.2d 97, 922 P.2d 43 (1996). In that case the question was whether the anti-discrimination provisions of section 49.60 apply to independent contractors. The court began by acknowledging that, “[i]n construing the law against discrimination, we have sometimes looked for guidance to cases interpreting equivalent federal law. Xieng v. Peoples Nat’l Bank, 120 Wash.2d 512, 518, 844 P.2d 389 (1993).” Marquis, 922 P.2d at 50. Nonetheless the Washington Supreme Court went on to reject the argument of the City of Spokane that urged the court “to adopt the reasoning of federal cases interpreting Title VII of the federal civil rights act.” Id. The court rejected reliance on federal cases because “[t]he language of our statute’s definition section [defining “employee”] differs from that of Title VII.” Id. Additionally, the state statute contained a provision that the federal statute did not:

While Title VII of the Civil Rights Act of 1964 is similar to RCW 49.60.180, the provision delineating unfair practices in employment, there is no provision in the *1255federal law which sets forth the equivalent of the broad language of ROW 49.60.030(1) and there is no statutory-provision requiring liberal construction in order to accomplish the purposes of the act. Federal cases interpreting Title VII are thus not helpful in determining the scope of ROW 49.60.030(1).

Id. (citation omitted). Thus, the rule in Washington is that the interpretation of federal anti-discrimination laws is not persuasive when the state provision “is significantly different from corresponding federal law.” Brown v. Scott Paper Worldwide Co., 143 Wash.2d 349, 20 P.3d 921, 926 (2001).

To summarize, the Washington Supreme Court’s reliance on federal cases to construe state statutes is limited to situations in which the statutory text of the two parallel provisions is identical or substantially similar. That situation does not exist here with respect to the key portion of 1-200.

Moreover, to the extent that the foregoing cases rely on a presumption that the Washington legislature consciously intends parallelism when it enacts a statute modeled on federal law, that presumption does not apply to initiatives. Instead, the interpretation of a voter initiative starts with a different premise: its text means what an average informed lay voter would think it means. Amalgamated Transit Union Local 587 v. State, 142 Wash.2d 183, 11 P.3d 762, 780 (2001); Senate Republican Campaign Comm. v. Pub. Disclosure Comm’n, 133 Wash.2d 229, 943 P.2d 1358, 1365 (1997). An average informed lay voter would not look to the intricacies of federal law when evaluating the meaning of the phrase “grant preferential treatment.”

B. The Majority’s Reliance on Bakke is Misplaced.

The majority suggests that Regents of University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), “lends support to the notion that the racial tiebreaker constitutes a preference, and consequentially, that it violates Washington law[I-200].” (Maj. op. at 1252.) Even assuming that federal cases such as Bakke bear on the meaning of I-200, the majority’s analysis of Bakke is incomplete in three ways.

First, although the majority quotes extensively from Justice Powell’s opinion, it takes his statements out of context. Justice Powell did not conclude that the University of California’s admissions policy violated federal law simply because it granted a “preference” to minority students. Instead, he found the university’s use of racial classifications impermissible only after engaging in a fact-driven analysis of the nature of the racial preference and the purposes served by it. Bakke, 438 U.S. at 299, 305, 98 S.Ct. 2733; see also Smith v. Univ. of Wash. Law Sch., 233 F.3d 1188, 1197 (9th Cir.2000), cert. denied, 532 U.S. 1051, 121 S.Ct. 2192, 149 L.Ed.2d 1024 (2001). Justice Powell’s statements have meaning, therefore, only in the context of a certain type of racial preference and a certain rationale offered to justify it.

By contrast, our analysis of the school district’s assignment plan begins and ends with our assessment that it “grant[s] preferential treatment to” certain students “on the basis of race” within the plain meaning of 1-200. Wash. Rev.Code § 49.60.400. Because both the specific nature of the racial preference and the purposes served by it are irrelevant to the question whether the preference violates the plain text of Washington law, nothing in Justice Powell’s opinion can aid us in evaluating the meaning of the term “preferential treatment” in 1-200.

Second, to the extent that the majority intends to suggest that federal law disal*1256lows all uses of racial classifications in educational admissions decisions, it is inconsistent with Bakke and with Ninth Circuit precedent. Justice Powell’s opinion in Bakke did not hold that all racial preferences designed to further any purpose are impermissible but, instead, held only that some types of racial preferences are unlawful when employed to further some purposes. Bakke, 438 U.S. at 305-20, 98 S.Ct. 2733. Thus, although Justice Powell concluded that the University of California’s admissions policy violated federal law, he noted explicitly that other race-conscious policies still would be permissible. Id. at 311-12, 98 S.Ct. 2733 (“[AJttainment of a diverse student body ... clearly is a constitutionally permissible goal for an institution of higher education.”); id. at 317, 98 S.Ct. 2733 (noting that “race or ethnic background may be deemed a ‘plus’ in a particular applicant’s file [when] it does not insulate the individual from comparison with all other candidates for the available seats”); id. at 320, 98 S.Ct. 2733 (“[T]he State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin.”).

Similarly, this court has held that race may be considered in the context of educational admissions decisions. For example, in Smith we held that “the Fourteenth Amendment permits University admissions programs which consider race for other than remedial purposes, and educational diversity is a compelling governmental interest that meets the demands of strict scrutiny of race-conscious measures.” Smith, 233 F.3d at 1201. In arriving at that holding, we interpreted Bakke to permit the use of some racial classifications in the context of admissions decisions:

The district court denied Smith’s partial summary judgment motion because it decided that under Supreme Court precedent race could be used as a factor in educational admissions decisions, even where that was not done for remedial purposes ....
There can be no doubt that the district court’s decision faithfully followed Justice Powell’s opinion in [Bakke ].

Id. at 1196.3 Likewise, in Hunter ex rel. Brandt v. Regents of University of California, 190 F.3d 1061, 1063 (9th Cir.1999), we held that achieving diversity and remedying past discrimination are not the only compelling interests that can justify racial classifications under federal law: “California had a compelling state interest in operating a research-oriented elementary school dedicated to improving the quality of education in urban public schools .... ” Third, to the extent that the majority suggests that the school district’s assignment plan is impermissible simply because it shares some features, in common with the university’s admissions policy in Bakke, it oversimplifies Justice Powell’s analysis. The form of a racial classification alone does not make it impermissible under federal law. To the contrary, Bakke requires a weighing of both the form of the classification and the purposes served by it. Accordingly, any type of racial classifi*1257cation, including the one employed by the school district here, may be consistent with federal law so long as it is the most narrowly tailored means to serve a particular compelling government interest, an issue that we need not and do not decide here.

The majority’s desire to respond to the district court’s rebanee on federal law to interpret 1-200 is understandable. In my view, however, the district court’s error was in using federal cases to interpret a state statute in the first place, when the key portion of that statute has no federal counterpart. We need not consider whether the district court read those eases correctly.

For the foregoing reasons, I concur in the result.

ORDER GRANTING INJUNCTION

Appellant’s motion for an injunction pending the filing and disposition of any petition for rehearing or rehearing en banc is GRANTED. The Appellees are hereby enjoined from using the racial tiebreaker in making high school assignments pending further order of this court.

The motion for immediate issuance of the mandate is DENIED.

. We are not called on to decide the different question whether the federal constitution forbids a school district from using a racial tiebreaker in these circumstances. We need not answer that question because, as a matter of state law, the racial tiebreaker is impermissible. See Clark v. City of Lakewood, 259 F.3d 996, 1016 n. 12 (9th Cir.2001) ("[W]e look first to state law to resolve this issue, in accordance with our longstanding principle that courts should avoid making federal constitutional decisions unless and until necessary.”).

. Our opinion in Smith also suggests that I-200 is to be interpreted separately from federal law. We held that "a properly designed and operated race-conscious admissions program” at a public university would not violate federal statutory or constitutional law as interpreted in Bakke. Smith, 233 F.3d at 1201. However, we also held that compliance with federal law was no help to the university, because "it is bound by 1-200, which precludes it from granting 'preferential treatment' to any individual ‘on the basis of race.’ " Id. In other words, we recognized that the meaning of 1-200 does not depend on federal law but, instead, places different and greater limits on the state’s ability to consider race in making school admissions decisions.