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Supreme Court to Decide Use of Race in Elementary and High Schools

Equal Treatment Regardless of Race
Index
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Seattle & Jefferson County Boards of Education

Introduction and Overview
Web Posted June 6, 2006

[Washington, DC] -- On Monday June 5, 2006 the Supreme Court agreed to hear two K - 12 cases involving the use of race in deciding school assignments, potentially setting the stage for a landmark affirmative action ruling.
          The high court agreed to hear appeals from a Seattle parents group and a Kentucky parent, and will rule for the first time on so-called diversity plans used by a host of school districts (elementary and high schools) around the country.   [See Associated Press]

     The two cases are:

  • Seattle, Washington:  Parents Involved in Community Schools vs. Seattle School District, 05-908
  • Jefferson County, Kentucky:  Meredith vs. Jefferson County Board of Education, 05-915

          Observers on both sides of the issue believe this may result in a landmark ruling regarding the use of race in grade school and high school admissions and perhaps even beyond that.

          Three years ago, the high court issued a pair of muddled rulings in University of Michigan (Grutter et. al. and Gratz et. al.) that essentially said that colleges and universities can use race as a "plus" factor in deciding which students to admit.  As long as that race is not white.

The Crossroads of Affirmative Action with Desegregation?

Affirmative Action: In a pair of cases in June 2003 (Gratz v. Bollinger and Grutter v. Bollinger, University of Michigan) the U.S. Supreme Court ruled that "diversity" is a compelling educational interest and that colleges and universities can (but are not required to) use race as a "plus" factor in deciding whom to allow to attend colleges and universities.

Desegregation:  Brown v. Board of Education 1954 ... racial segregation was struck down; separate but equal was struck down.  In Brown the court banned intentional, or de jure, racial segregation in public schools. 

The Crossroads:  Where Brown banned the deliberate segregation of schools by race, Gratz and Grutter approved "a little discrimination" to ensure that certain races -- but not others -- are proportionately represented within institutions of higher education.

          But the Supreme Court has not heard a similar case involving K - 12.

See UPDATE:
Seattle and Louisville Use of Race UNCONSTITUTIONAL
          Both of the K - 12 cases now pending before the Supreme Court concern the use of race in deciding whether white kids will be allowed to attend certain, desirable elementary or high schools.  Both cases were brought by parents of white children who were excluded from their schools of choice because of the color of their skin.

          In non-legalese, the issue before the high court is the contentious notion that a "little bit of discrimination" in favor of certain races is necessary, legal, constitutional or moral in the K - 12 sphere.

Unusual Decision to Hear Case:   The Supreme Court's decision to hear these two cases is unusual because both cases have already been ruled upon by their applicable federal appeals courts, and both cases have been decided in favor the the schools' race-based policies.

          Court watchers have noted that the Supreme Court tends to select cases which involve conflicting decisions from two or more lower courts (in this case, the lower courts are federal district courts of appeal).  

          But both the Seattle case (Ninth U.S. Circuit) and the Louisville case (Sixth U.S. Circuit) were in agreement: both federal courts ruled that race can be used in school assignments.  (In a third case, which is not before the Supreme Court, the First U.S. Circuit Court of Appeals also ruled that Lynn, Massachusetts could continue to use race in deciding which students to admit to its schools.  More on the Mass. case below.)

For additional in-depth news coverage and background info, also be sure to see:

Seattle, WA - Jefferson, KY News

          Since the Ninth Circuit (the Seattle case) and the Sixth Circuit (the Louisville case) were in agreement, the unusual decision of the Supreme Court to hear appeals to both of these cases may be a signal that the high court is anxious to revisit the issue of racial preferences in education.

          Previously, in December 2005, the high court declined to hear a very similar case.  But at that time moderate Justice Sandra Day O'Connor still sat on the bench and conservative Samuel Alito had not yet been confirmed to replace her.  (That case involved a school district in Lynn, Massachusetts, decided by the U.S. Court of Appeals for the First Circuit).  The fact that the high court agreed today to hear two similar cases now that conservative jurist Samuel Alito has replaced O'Connor is considered significant.

The SEATTLE Case:  Parents Involved in Community Schools v. Seattle School District -- challenged the Seattle school district's use of racial guidelines which dictate that a school must have a minimum ratio of 40 percent white kids and 60 percent minority kids. 

See UPDATE:
Seattle and Louisville Use of Race UNCONSTITUTIONAL
          Under this plan, if a school already has full enrollment, and if it has only 55 percent minority kids, then a white kid applying to the school would be rejected but a black would be accepted.  That racial selection process would continue until the district's stated 40/60 racial balance had been achieved.

          The Ninth U.S. Circuit Court of Appeals in San Francisco has ruled in a 7-4 en banc majority that the Seattle district could continue to use race, or skin color, in making its K-12 school assignments.

          Unlike many hundreds of other school districts, Seattle has never been saddled with a court order requiring them to use intrusive racial measures to achieve "diversity" (or what used to be referred to as "integration"), such as forced busing or race-based student admissions.

          In other words, even though the Seattle schools had never been found guilty of segregation or discrimination, the school district decided on its own to use "a little bit of discrimination" in order to ensure their ephemeral version of "a diverse student body".

          The legality or constitutinality of Seattle's "race-sensitive" student assignment policy will now be considered and evaluated by the U.S. Supreme Court.

The KENTUCKY Case:  Meredith v. Jefferson County Board of Education -- challenged the school district's policy which requires between 15 percent and 50 percent black enrollment in order to maintain a prescribed racial balance within each individual school. 

          For example, if a white student wanted to apply to an elementary or high school whose student body was less than 15 percent black, the white student would not be allowed to attend that school -- only black student applicants would be allowed.  A white K-12 student would only be allowed admission to the school if that school's student body is at least 15 percent black or is more than 50 percent black.

          The Jefferson County Board of Education's race-based student assignment plan was upheld in a majority opinion by the United States Court of Appeals for the Sixth Circuit.

          Unlike Seattle, the Jefferson County / Louisville schools had previously been under a court order to use intrusive race-based measures such as forced busing and racial selection criteria to achieve "integration" (or, in today's quota-speak, "diversity") since 1975. 

          That court order was lifted in 2000 because the court judged that the Louisville schools were no longer "segregated".  Nonetheless, one year later, in 2001, Jefferson County schools felt it necessary to began using the racial assignment plan in order to satisfy their own "racial balance" or "diversity" criteria.

          The named plaintiff in this case is Crystal Meredith, the mother of a white boy named Joshua whom the Jefferson County Board prohibited from attending his neighborhood school because their 15/50 plan did not allow any more white kids to attend that school.


BACKGROUND:
Recent History of Legal Battle Against Racial Quotas in Washington State

Seattle School Racial Quotas Argued in State Supreme Court (10/25/02)
"Race-based tiebreaker for schools is argued" -- Seattle Times
(Excerpted from the Michael Ko story in the Oct. 25, 2002 Seattle Times)

OLYMPIA — [The legality of using race in assigning students to Seattle schools] "...was the discussion yesterday in the state Supreme Court, as attorneys argued over the Seattle School District's use of race as a factor in assigning students to schools.

          "The nonprofit group Parents Involved in Community Schools (PICS) sued the district in 2000, saying the district's race-based assignment plan kept many children from attending the schools closest to home.

          "The suit relied on Initiative 200, approved by voters in 1998, which prohibits racial preferences in school admissions, among other things.

          "The State Supreme Court is hearing the case four months after a federal appeals court withdrew its earlier decision on the matter. The 9th Circuit Court of Appeals, which initially ruled in favor of the parent group in April, withdrew that ruling in June, saying the state [supreme] court is "better qualified" to decide issues of state law.

Seattle School Racial Quotas: Chronology

2000 -- Seattle school parents sue in U.S. District Court to force school district to conform to Initiative 200 (passed in 1998) which banned the use of race in school admissions.

2001 -- District Court upholds use of race for school admissions, effectively overriding the state's new I-200 law banning such racial criteria.

Apr. 16, 2002 -- 9th Circuit Court of Appeals rules in favor of elimination of racial quotas by overturning the District Court ruling.  Says "I-200 was quite clear" in prohibiting use of race.

Apr. 26, 2002 -- Appeals Court issues an injunction against Seattle schools' use of race for admissions.  Seattle schools throw out race-based assignments for the 2002 - 2003 school year.  (See Injunction, below.)

June 17, 2002 -- The Appeals Court withdraws its ruling (lifts the injunction against the use of race), saying the State Supreme Court was better qualified to decide the issue.  (See Reversal, below.)

Oct. 2002 -- The State Supreme Court heard arguments for and against the use of race in Washington schools.  A ruling is expected by year's end. (This Story.)

          "A U.S. district judge last year ruled in favor of the district [in support of the use of race in assigning students to schools].

          "Daniel Ritter, attorney for the parents group, said: "The constitution permits schools to address racial imbalances. It does not require them to do so.  The question then is who gets to decide. It's not the school board, it's not the courts, but ultimately, it's the people."  And the people voted for I-200, Ritter said.  Ritter [also] said the assignment process results in some students getting preferential treatment simply because of race.

          "Another attorney for the parents, Harry Korrell, said ... "It's offensive to say that the right education only comes from having a certain percentage of white kids."

See UPDATE:
Seattle and Louisville Use of Race UNCONSTITUTIONAL
          "[Michael] Madden [an attorney for the Seattle school district] argued yesterday [before the state supreme court] that if it wasn't for the racial tiebreaker, Seattle schools would be segregated because of the racial makeup of the city's neighborhoods, and therefore contrary to the interpretation of the state constitution.

          "The district halted use of the racial tiebreaker after the April federal court ruling. That involved recalculating assignments for about 9,000 children entering kindergarten, sixth and ninth grades.   The district chose not to redo assignments again after the federal appeals court withdrew its ruling."

Excerpted from the Michael Ko story in the Seattle Times 10/25/02
Last known link:
http://seattletimes.nwsource.com/html/localnews/134562268_schoolrace25e.html


On Again: Racial Quotas in Seattle Schools (06/18/02)
"Seattle schools race plan back in state court" -- Seattle Times
(Excerpted from the June 18, 2002 Seattle Times story by Keith Ervin)

          "The legal battle over race-based assignments to Seattle public schools took an unexpected twist yesterday as a federal court withdrew its earlier opinion and asked the Washington state Supreme Court to hear the case.

          "Two months after declaring the school district's racial tiebreaker violated state Initiative 200, a three-member panel of the 9th U.S. Circuit Court of Appeals said the state court is "better qualified" to decide issues of state law.

          "The district suspended use of the racial tiebreaker after the 9th Circuit panel issued an injunction banning its use in April. The court lifted the injunction yesterday, but district administrators do not plan to redo assignments for the 2002-03 school year."

Update 6/18/02
The Judges' Order:

     On Monday, June 17, the 9th Circuit lifted its April 26 injunction against the racial tiebreaker.

Download:
Appeals Court Vacates -- June 17, 2002

          Additional Background:   Initiative 200 (I-200) was voted into law by Washington State voters in 1998 and it forbids racial discrimination or preferences in public contracting, employment and education within the state.  The 9th Circuit's decision to vacate the April injunction against the school's use of race in tie-breaking admissions decisions means that the 9th Circuit is asking the Washington State Supreme Court to rule on this politically hot issue.  The questions which have now been bucked up to the State Supreme Court include (a) does I-200 forbid the use of a racial tiebreaker in the school district's admissions; and (b) does the state constitution require action -- such as racial tiebreakers -- to integrate state schools.

Excerpted from the Keith Ervin story in the Seattle Times 06/18/02
Last known link:
http://seattletimes.nwsource.com/html/localnews/134477061_schoolrace18m.html


Racial Quotas in Seattle Schools Ruled Illegal! (04/17/02)
(Excerpted from the April 17, 2002 Seattle Times story by Keith Ervin)

          "A three-member panel of the 9th U.S. Circuit Court of Appeals, widely viewed as one of the nation's most liberal courts, ruled unanimously that the use of race as a tiebreaker in assigning students to schools violates state Initiative 200.

          "I-200, passed by voters in 1998, prohibits racial preferences in public hiring, contracting and school admissions.

          "The appeals court found that the I-200 ban on racial preferences was "remarkably clear." While racial and ethnic diversity "may well be a reasonable policy choice by the school district, the citizens of Washington have made a policy choice of their own," appellate Judge Diarmuid O'Scannlain wrote. "Washingtonians have collectively decided that, even though racial diversity may well benefit the school district's public-school students, the price of that diversity — that some students are told that they may not attend their high school of choice simply because their skin is the wrong color — is too high."

Update 4/26/02
The Judges' Order:

     On April 26, 2002 the United States Court of Appeals for the Ninth Circuit issued an injunction in this case prohibiting Seattle Schools from using race in assigning students to schools.

          "Yesterday's decision was also noteworthy because the 9th Circuit has been more supportive of [forced diversity] integration efforts than many other courts. Seattle University constitutional-law professor David Skover, who was critical of the ruling, said it "invites other states and citizen groups to consider I-200 as a model for race law in America today."

          "[Harry Korrell, attorney for Parents Involved in Community Schools, which sued the district over its racial quota policies] said the court affirmed "there's nothing wrong with a state deciding that race-based preferences are illegal."

See UPDATE:
Seattle and Louisville Use of Race UNCONSTITUTIONAL
          "The lawsuit was brought by parents after many students were turned away from Ballard High School two years ago because of the racial tiebreaker. The tiebreaker, one factor in student placement, favors nonwhite students at Ballard and Nathan Hale high schools and white students at Franklin High.

          "[The Seattle school district's former, race-based goal was to] have the ratio of nonwhites to whites in each high school roughly equal that of the 47,000-student district as a whole: 60 percent nonwhite to 40 percent white. If a school's ratio varies by plus or minus 15 percentage points, then race is considered as a tiebreaker.

          "Although the appeals court ruling applies only to students entering high school, the district's general counsel, Mark Green, said the legal precedent would apply to lower grades as well. 

          "Because yesterday's ruling turned primarily on state rather than federal law, its immediate effect will be mostly on school districts in Washington and California, the only states with voter-approved bans on racial preferences. But the decision accelerates a national trend in which federal courts have limited the methods school districts may use to promote racial diversity [to enforce forced diversity] in classrooms. [Comment added.]

          "[The 9th U.S.Circuit Court of Appeals said that] The current [racial] tiebreaker ... is "inherently invidious," the court wrote, because in one stage of the assignment process all decisions are based on race."

          Seattle School District officials in the past have debated possible use of other proxies for race such as family income, in order to create forcibly-diverse school environments.

Last Known Link:
http://seattletimes.nwsource.com/html/localnews/134437666_schoolrace17m.html


Seattle must end school race plan now (04/27/02)

(Excerpted from the April 27, 2002 Seattle Times story by Lynn Thompson)

          [On April 26, 2002] "The 9th U.S. Circuit Court of Appeals has issued an injunction to stop the Seattle School District from using race as a tiebreaker in student assignments while the district challenges a legal ruling last week that held its policy illegal." [The U.S. Court of Appeals for the Ninth Circuit issued the injunction on 4/26/02. The three judge panel consisted of the Honorable Thomas M. Reavley, Justice O’Scannlain, and Justice Graber.]

          "A three-judge panel of the 9th Circuit ruled last week that the district's use of race as a factor in school assignments violates state Initiative 200, which was passed by voters in 1998 and prohibits racial preferences in public-school admissions, hiring and contracting."

          Ballard High School’s pro-racial-preference principal, David Engle, resigned in protest of the Court’s ruling.

Last Known Link:
http://seattletimes.nwsource.com/html/localnews/134444174_race27m.html


THE JUDGES' RULING on 04/26/02:

United States Court of Appeals for the Ninth Circuit
No. 01-35450
D.C. No. CV-00-01205-BJR
Order Granting Injunction
"Parents Involved in Community Schools v. Seattle School District No. 1"

THE INJUNCTION (filed by the Court of Appeals April 26, 2002)

          "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."

/s/ Justices Reavley, O’Scannlain, and Graber, Circuit Judges

Last Known Link:
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/
17F23B6592BC01E988256BA70070F7AF/$file/0135450o.pdf?openelement


University of Washington Reverse Discrimination Suit:  Update**

Some Public Colleges CAN Consider Applicants' Race (12/05/00)

Synopsis:  California and Washington state are exempt from a court ruling that public colleges can use racial preferences in determining student admissions. 

          California and Washington state's anti-preferences laws trump the Court's ruling, but seven other western states in the 9th U.S. Circuit must abide by the court's decision: Alaska, Arizona, Idaho, Hawaii, Montana, Nevada, and Oregon.

          A three judge panel of the U.S. Court of Appeals (based in San Francisco) issued the ruling Dec. 4, 2000 stating that public colleges are free to use race and ethnicity to deny white students entrance in order to promote "diversity".

See UPDATE:
Seattle and Louisville Use of Race UNCONSTITUTIONAL
          The opinion was prompted by a 1997 federal lawsuit against the University of Washington's racially biased admissions policies.  The plaintiffs were three white applicants who were denied admission in favor of lower-scoring minorities.

          The Chronicle writes:   "The ruling by a three-judge panel led by one of the court's most conservative judges, Ferdinand Fernandez, was welcome news for affirmative action advocates after a crushing defeat in the California Supreme Court.

          "[The California Supreme Court] ruled unanimously last week that Prop. 209, the 1996 initiative outlawing race and gender preferences in state and local government, prohibits recruitment programs that selectively distribute information to minorities and women even if they were not given an advantage in bidding. The ruling in a San Jose case could invalidate scores of local programs, including a San Francisco contracting ordinance.

          "Yesterday's federal court ruling "sends a very important message that there is still room for race- and gender-conscious remedies under the federal Constitution, barring a local 209-type law," said American Civil Liberties Union lawyer Edward Chen.

          "The Clinton administration's Justice Department and several educational organizations filed arguments supporting the view that the court ultimately took.

          "Attorney Michael E. Rossman of the Center for Individual Rights, a conservative organization based in Washington, D.C., that filed the federal suit, said the issue is ripe for U.S. Supreme Court review because the ruling created a split among appeals courts.  "We think there is far too much consideration of race in the admission process," he said." 

(Excerpted from the story by Bob Egelko in the 12/5/00 San Francisco Chronicle.)

Last Known Link:
http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2000/12/05/MN35352.DTL

For additional news and background clips about the University of Washington case, see also: http://www.adversity.net/cirnews.htm#umich


Washington (Seattle):
UW's scholarship plan adapts to Initiative 200 (04/17/99)
 

         "The University of Washington has adopted a new policy on scholarships that will allow it to use race and gender to give out targeted scholarships and to accept money from donors for such programs. The Board of Regents unanimously approved the policy yesterday. It is meant to comply with Initiative 200, which banned the use of race preferences in state hiring, contracting and education.

          "The new policy will keep all existing scholarships that target students by gender, ethnicity, race and national origin. But it will also review them for compliance with state and federal law and the UW policy.

          "The UW will keep accepting money for [racially] targeted scholarships from donors. But it will create "diversity pools" of candidates selected on merit and other neutral factors such as economic need, but not race or gender. Then it will match qualified recipients in those pools by the donor's wishes, which could include race or gender. If no qualified students match the criteria, no scholarship will be given out.

          "The new policy will even allow the university to use race and gender and other diversity indicators to give out scholarships meant to increase diversity, including funds to recruit students. It may do so only after it exhausts all other means to maintain or increase diversity at the campus."  (Seattle Times 04/17/99 by Roberto Sanchez)

Last Known Link:
http://www.seattletimes.com/news/education/html98/rege_19990417.html


Washington (Seattle):
UW regents clarify minority scholarship policy  (03/19/99)
 

         "How to award scholarships to minorities without violating Initiative 200 has been hotly debated at the University of Washington.  Today, the UW Board of Regents will discuss a second try at forming a scholarship policy. The rewrite would better accommodate privately funded scholarships that donors want awarded based on race or gender.

          "I-200, which Washington voters approved in November, prohibits special preferences based on race or gender in public education, contracting and hiring.  As the university wrestles with how to preserve diversity within the limits of I-200, admissions policies, scholarships, outreach and recruitment programs have all been put up for review."  (Seattle Post-Intelligencer, 03/19/99, by Ruth Schubert)

Last Known Link:
http://www.seattle-pi.com/local/uw191.shtml


Washington (Seattle):
UW to Keep Minority Scholarships in Spite of I-200 (03/17/99)
 

         "After weeks of hearing student and donor concerns, the University of Washington is backing down from a policy that would have ended many scholarships targeting minorities and women.

          "Worried about a conflict with the voter-approved Initiative 200, the UW had been considering a halt to accepting donations for targeted scholarships. And university officials talked about reviewing every existing scholarship for compliance with the law, which bans the use of race, gender or national origin in state hiring, education and contracting.

          "But after student groups held a series of campus forums, arguing that the UW was taking a more conservative approach toward I-200 than any other school in the state, the university is retreating from its initial position in a new draft policy to be presented to the Board of Regents on Friday.

          "Under the new proposal, the university will accept new money for targeted scholarships directly from donors, only requiring that the donors agree to put that money in a "diversity fund." Students would be put into the candidate pool based on merit, need or other neutral factors, but winners would be chosen according to the donors' criteria, including race."  (Seattle Times, 03/17/99, by Roberto Sanchez)

Last Known Link:
http://www.seattletimes.com/news/local/html98/univ_19990317.html


Washington (Seattle):
Update - UW Law School Reverse Discrimination Suit
(04/18/02) 

         [Adversity.Net]  Katuria Smith, Angela Rock and Michael Pyle had been denied admission to the UW Law School because they were not 'disadvantaged minorities'.  The judge in the case, U.S. District Court Judge Thomas S. Zilly is currently waiting for the 9th U.S. Circuit Court of Appeals to act on challenges brought by the trio's lawyers from the Center for Individual Rights, a nonprofit group in Washington, D.C., that opposes race-based admissions policies.

          While the legal beagles wrestle with the points of law, the rest of Washington State, and the nation, anxiously await the outcome of this potential landmark decision against race-based admissions in state colleges and universities.  Interestingly, the passage of I-200 in Washington, outlawing race-based criteria for admissions, jobs, and contracts, is delaying the decision in this case. (Adversity.Net, 02/22/99)

Current Link:
http://adversity.net/ducation_3_washington_smithCIR.htm


Washington (Seattle):
UW makes enrolling minorities a priority (05/11/99)
 

         "The University of Washington is so concerned about losing minority students that deans, vice presidents and even the UW president have personally called every minority student selected for admission in an effort to persuade them to attend the school.

          "The effort is an aggressive extension of a program the university began three years ago, in which student volunteers placed telephone calls to greet each in-state applicant accepted for the next year's freshman class.

          "This year, for the first time, those calls are going to all of the roughly 9,000 students offered a place in the 1999-2000 class. And the UW Admissions Office has issued lists of minority students who have been admitted to the deans of every college at the university. The deans have called those students to answer questions about the university and encourage them to attend."  (Seattle Times 05/11/99 by Roberto Sanchez)

Last Known Link:
http://www.seattletimes.com/news/local/html98/call_19990511.html


Washington (Seattle):
Parent challeges race-based admissions in public schools (01/30/99)
 

         "Seattle Public Schools still use race as a factor in school assignments, but one parent is threatening to sue, saying the practice violates Initiative 200's ban on the use of racial preferences.

          "Seattle lawyer Pat Brown, who is trying to get his son into Olympic View Elementary School's popular all-day kindergarten, says that the school’s use of race is illegal even though it is only one of three factors considered by the district in admissions. "The district to some extent should be colorblind," says Brown, who is white.

          "If Brown files suit, it could develop into the first legal test of Initiative 200, the law passed by voters Nov. 3. The law bans preferences based on race, ethnicity and gender in state and local public employment, contracting and education. (Seattle Times, 01/30/99, by Lynne K. Varner)

Last Known Link:
http://www.seattletimes.com/news/education/html98/race_013099.html


Washington (Seattle):
Efforts to "diversify" colleges get mixed results after 30 years (10/18/98)

         This is a "fair" article by Seattle Times IF you ignore their implicitly biased assumption that it somehow falls to the colleges and universities to correct any presumed "prior discrimination" through the use of quotas.  Nonetheless, this article examines the data of "college quotas" over the past 30 years and concludes that the results are ambiguous:  college racial quotas have failed to solve the problem of historic racial discrimination.   Gee, WE could have told 'em that!  (Based on Seattle Times 10/18/98)

Last Known Link:
www.seattletimes.com/news/local/html98/edaf_101898.html

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