Paying the Costs of the Supreme Court Case

I did some research, talked to some people and here is what I have learned in terms of the fees that Davis Wright Tremaine is asking the District to pay.

First I spoke with Jennifer McMinimee, one of the District's lawyers, about the case. She has been fielding quite a few calls about this issue including calls from other districts around the country about the use of race in assignments. I also e-mailed Dave Baca, Managing Director at DWT, who promptly wrote me back.

Here's what they had to say about various issues that have been brought up.

• The issue of pro bono. To her credit, Ms. McMinimee said that pro bono does NOT mean free but rather it means "in the public interest". The American Bar Association has a policy that asks every law firm/lawyer to work for people who might otherwise not get the representation they need especially in the area of civil rights. (This is not to say that public defenders aren't good; they are some of the best lawyers around but they are hugely overworked and underpaid.)
  
• Ms. McMinimee said that under civil rights statues, plaintiffs do have the right to ask for money. So the plaintiffs in this case did tell DWT to go ahead and request fees to be paid. What both Mr. Baca and Ms. Minimee agree on is that both parties knew, from the beginning, that DWT would seek fees if they won.

What is unclear to me is whether that was ever told to the media. I don't recall ever reading in any newspaper report that DWT was doing this pro bono if their clients lost and would seek fees if they won.

• According to Mr. Baca, DWT does pro bono work that is free and cited a case for a Guantanamo detainee but also cited a civil rights case where their client (a prisoner in a Los Angeles county jail) was beaten by his jailers and DWT is seeking fees (probably from Los Angeles County). Ms. McMinimee said that as well; that DWT does work that they call pro bono and then sometimes collect fees. She said there is nothing illegal in this action but said that it can be confusing to the public who believe they understand "pro bono" to mean free.
  

• One issue that has come up repeatedly here is the issue of "settling" the case. The relief that the plaintiffs sought was an injunction to stop the District from using the tiebreaker for 2002-2003. Well, the District pre-empted that by stopping voluntarily and continuing to cease using it. Nor did they attempt to use race in any other fashion in assignments i.e. create another assignment plan. So what they were really after was to permanently stop the District from using the racial tie-breaker (as we are talking about a specific plan and NOT the use of race). The Supreme Court decision made that a reality.
  

So, yes, the District could have "settled" the case by agreeing to not use the racial tiebreaker. But as I pointed out to both Mr. Baca (who did not answer this point) and Ms. McMinimee, the District made this plan in good faith and was not willfully breaking a law. Indeed, according to Ms. McMinimee, the District was under orders from the Department of Education to have some sort of de-segregation plan to show the government. Use of the racial tiebreaker was one attempt. The Supreme Court decision in this case did little to help states know what to do except to not use white versus non-white categories in a tiebreaker (this is Ms. McMinimee's summation of the situation). My reading of this issue is not whether you can use race in assignments because Justice Kennedy indicated he would side with a well-crafted plan (and thus shift his vote over to the minority side) but how you use it.

• There is a lot of gray area on whether both sides tried to keep this out of court. I didn't address this in my e-mail to Mr. Baca but Ms. Brose has said previously,

"The SSD would not settle. We tried mediation in the very beginning with a different school board 7 years ago. The current school board could have settled before the case went to the U.S. Supreme Court. You might ask the current school board if they even discussed the case with their attorneys."

The mediation she speaks of is required by the court. But I wonder if someone from one side had gone to the other and asked the question, "What is it that you really want?" Because clearly, Ms. Brose and the other parents of QA/Magnolia are still not satisfied. I find it hard to believe that Michael de Bell (whose district includes QA/Magnolia), who I find to be a person of principle and good manners, wouldn't have been willing to sit down (with lawyers present, of course) and ask that question. Was it too late, from a legal standpoint to do this (meaning, would lawyers from either side have allowed it?) I don't know.

Where does that leave us? Both sides agree - there's a long process ahead. DWT chose to jump over the Western District Court (that originally sided with the District) and go straight to the Ninth Circuit Court. The District will argue to that court that the case needs to go back to the Western District where it originated and she believes the District has a strong case for that to happen. (If it does go back to the Western District Court and its original judge, Judge Rothstein, it might come back to Seattle and we could go hear the oral arguments.)

If the Ninth Circuit Court sends it back, then DWT would have to present evidence that the plaintiffs prevailed. Is there something I'm missing? I thought the plaintiffs prevailed but maybe it is all a nuanced way of looking at the outcome. It might be one of those "what the meaning of is, is" distinctions.
If DWT prevails in either court, the District will have to pay. And, guess what? DWT is still filing legal costs in the case so the meter is still running.

If the District gets the case moved back to the Western District court and wins, that is to be likely where it ends according to Ms. McMinimee.

As I pointed out to Mr. Baca (who was very gracious and unfailingly polite in his reply), the District is trying to make every high school better to solve the problem of parents trying to flee their neighborhood school. (Keep in mind, though, many students want to and like being in their "neighborhood" high school but a large number of students are willing to travel far away, not because they don't like their nearby school but because they are looking for programs not offered at their school. That is the beauty of having high schools that are different; to try to keep students interested and in school.) I told him the District is barely coming out of the red and putting money into helping less-desirable schools and that taking money from the District would hurt the very process that could help parents in QA and Magnolia.

Here's his reply,

"It is really premature to address this in any detail, since we are a long way from any award or receipt of fees, but it is my hope to use a substantial portion of any award to both enhance our pro bono program, and to provide support to one or more organizations that support public education."

So there is likely to be a flurry of motions back and forth and that will drag out the process so we can only sit back and watch.