Washington State v. Seattle School District No. 1 Brief Amicus Curiae

    No. 81-9

In The

Supreme Court of the United States

October Term, 1981

STATE OF W ASHINGTON, et al.,
Appellants,

v.

SEATTLE SCHOOL DISTRICT NO. 1, et al.,
Appellees.

ON APPEAL FROM THE UNITED STATES  
COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF AM ICUS CURIAE  
The Washington Education Association

1411-4th Ave. Building 
Suite 620
Seattle, W A  98104 
(206) 233-0344

33434-8th Ave. South 
Federal Way, W A 98003 
(206) 941-6700

JUDITH A. LONNQUIST 
Durning, Webster and 

Lonnquist

FAITH HANNA  
Washington Education 

Association 
Attorneys for the 

Washington Education 
Association



1
TABLE OF CONTENTS

g a g e

Interest of Amicus Curiae ...........  1
Scope of B r i e f ................   5
Summary of Argument................  10
A r g u m e n t ...........................  14
I. A State Law Which Frustrates 

Desegregation Programs Inter­
feres With a School District's 
Duty To Provide a Sound 
Education To All Students and 
Places Special Burdens On the 
Efforts of School Districts 
and the Minority Population 
To Provide Educational 
Opportunities for Minority 
Children......................... 14
A. Requiring a court order

before a school district 
may implement the full 
range of segregation 
remedies places a heavy 
and unnecessary burden 
on school districts and 
minority populations affected 17

B. The reduction of racial 
isolation in school systems 
is an important strategy 
for an educational program 
designed to teach students
in a pluralistic society. . . 21

C. The educational achievement 
of minority students is 
increased by desegregation. . 26



11

II. The Mandatory Reassignment
Plans Forbidden by Initiative 
350 Can Be Important - and 
Often Necessary Components - 
Of Effective School Desegre­
gation P r o g r a m s ..............  34

III. There Are No Substantial 
Educational Reasons For the 
Anti-Busing Policy Promulgated
By Initiative 350..............  39

Conclusion...........................  46
TABLES OF AUTHORITY 

Table of Cases

Page

Arlington Heights v. Metropolitan 
Housing Development Corporation,
429 U.S. 252~Tl977T . . . . . . . .  7,8

Lee v. Nyquist, 318 F. Supp. 710 
(W.D.N.Y. 1970), aff'd, 402 
U.S. 935 (1971)................... 7

Brown v. Board of Education, 347
U.S. 493 (19541................... 26

Brown v. Board of Education, 349
uTsT~29 4~T1955)................................  21

Dayton Board of Education v. Brinkman,
443 U.S. 526 (1979)..............  10,18

Green v. County School Board of 
New Kent County, 391 U.S. 430
( 1 9 6 8 )    17-18

Hunter v. Erickson, 393 U.S. 385
(1969) 7



Page
Keyishian v. Board of Regents,

385 U.S. 589 Tl967l..............  24
Lee v. Nyquist, 318 F. Supp. 710 
~TW.D. N.Y. 1970), aff'd, 402

U.S. 935 (1971)..................  7
McLaughlin v. Florida, 379 U.S. 184

(1964)   8
North Carolina State Board of 

Education v. Swan, 402 U.S.
43 119711-......................... 35

Peters v. South Kitsap School District,
8 Wn. App. 809, 509 P.2d 67 (1973) 14

Seattle School District No. 1 v.
State of Washington, 90 Wn.2d
476, 585 P. 2d 71 (1978).........15,16,25

Swann v. Charlotte-Mecklenburg 
Board of Education, 402 U.S.
1 (1971)  21-22,34

Tinker v. Des Moines Independent 
Community School District,
39 3 U.S. 503 (19697..............  25

University of California Regents
v. Bakke, 438 U.S. 265 (1978) . . .  25

Constitutional Provisions
U.S. Const, amend. XIV ........  7,17,19
U.S. Const, amend. I ..............  25
Wn. Const, art. 9, § 1..............  17



IV

Statutes
R.C.W. 28A.26.06Q ..................  18
R.C.W. 28A.26.101 ..................  44
R.C.W. 2 8A.57.312..................  38
R.C.W. 2 8A .58.103 ..................  14
R.C.W. 28A.59.180 ..................  14
R.C.W. 2 8A .65.415..................  38
R.C.W. 41.56....................., . . 38
R.C.W. 41.59 et seq...............  2,38

Other Authority
Crain and Mahard, "Desegregation 

and Black Achievement: A
Review of the Research" 42 
Law and Contemporary Problems

School Desegregation 118 (1973) . . 40-41

Crain and Mahard, "Some Policy 
Implications of the Desegrega­
tion-Minority Achievement 
Literature" 5 Assessments of 
Current Knowledge About the 
Effectiveness of School 
Desegregation Strategies

et seq.
Crain and Mahard, "Some Policy 

Implications of the Desegrega­
tion-Minority Achievement 
Literature" 5 Assessments of 
Current Knowledge About the 
Effectiveness of School 
Desegregation Strategies
175~(1981).  ............ 2 7,28,29,31,3 2

Davis, "Busing" 2 National 
Opinion Research Center,
Southern Schools: An
Evaluation of the Effects 
of the Emergency School 
Assistsnce Program and of



V

Page
Hawley, "The New Mythology of 

School Desegregation", 42 
Law and Contemporary
Problems 2 1 8 -1 9  T T 9 7 8 )...............................  28

W. Hawley, et al., Assessment of Cur­
rent Strategies About the Effective­
ness of School Desegregation 
Strategies (1981) ................  30

H.R. Rep. No. 94-1558, 94th Cong.,
2d Sess. 2-3 (1976)..............  20

Multicultural Education Through 
Competency-Based Teacher Educa­
tion 21 ("Hunter, ed. 1974TT  ̂ T . . 23

G. Orfield, Must We Bus?, 121-124
( 1 9 7 8 ) ...........................  41,42

Rossell, "School Desegregation 
and Community Social Change,"
42 Law and Contemporary
Problems (1978) ..................  23,24

Rossell, "The Effectiveness of 
Desegregation Plans in Reducing 
Racial Isolation, White Flight 
and Achieving a Positive 
Community Response", 5 Assess­
ment of Current Knowledge About 
the Effectiveness of School 
Desegregation Strategies (1981) 35-36,42

N. St. John, School Desegregation
Outcomes for Children 36 (1975) . .29,41

U.S. Comm'n on Civil Rights, 
Fulfilling the Letter and 
Spirit of the Law (1976). 26



vi
Page

U.S. Comm'n on Civil Rights, With 
All Deliberate Speed: 1954-
19?? 38 (1981)..................20,42,43

M. Weinberg, Minority Students:
A Research Appraisal, 112, 327
1197577 ...........................  28



NO. 81-9
IN THE

SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM 1981

STATE OF WASHINGTON, et al., 
Appellants,

v.
SEATTLE SCHOOL DISTRICT NO. 1, et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES 
COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF THE WASHINGTON 
EDUCATION ASSOCIATION AS 

AMICUS CURIAE

INTEREST OF AMICUS CURIAE

All parties have consented to the 
filing of this brief.

The Washington Education Association 
(WEA) is an organization of over 38,800 
professional educators in the State of 
Washington. The W E A 1s purpose is to



2
advance the interests of the profession of 
teaching and to promote the cause of 
education in the State of Washington.

The WEA is the statewide parent organi­
zation of 243 local education associations, 
which are the designated local collective 
bargaining representatives for educational 
employees under Washington's Education 
Employment Relations Act, RCW 41.59 et seq. 
The WEA provides bargaining support, 
research services and legal assistance to 
these affiliates.

The WEA is also affiliated with the 
National Education Association (NEA), a 
nationwide organization of educators. The 
NEA has monitored desegregation efforts 
across the country and provided its state 
and local affiliates with information and 
advice concerning the impact of desegrega­
tion efforts on teachers.

For over ten years, the WEA has coop­
erated in the desegregation efforts of



3
school districts in Washington. It has 
been involved in inservice training pro­
grams to prepare teachers to participate in 
desegregation programs. WEA-assisted 
affiliates have bargained over the effects 
of desegregation plans on the assignment 
and transfer of teachers, on the curricula 
to be offered in special programs set up by 
such plans and on the training or experi­
ence necessary for teachers involved in 
desegregation efforts.

Local WEA affiliates represent teachers 
in ail three of the school districts which 
have initiated the present litigation. As 
the recognized bargaining agent for certi­
fied staff in the Plaintiff-Appellee 
Seattle School District, the Seattle 
Teachers Association (STA) bargains for 
2,059 classroom teachers in the district 
which was the target of Initiative 350. 
The Tacoma Association of Classroom Teach­
ers (TACT) is the exclusive bargaining



4
representative of 1,550 teachers in Plain­
tiff-Appellee Tacoma School District. The 
Pasco Association of Educators (PAE) 
bargains on behalf of 257 teachers in the 
Pasco School District.

Because the implementation of Initi­
ative 350 would restrict the desegregation 
programs of Washington school districts, 
the working environment of teachers repre­
sented by WEA and its affiliates would 
necessarily be affected. Reversal of the 
decisions of the courts below would create 
particularly significant changes for 
teachers in the Seattle, Tacoma, and Pasco 
schools, where desegregation programs 
evolving from a decade of discussion among 
school board members, administrators, 
parents and teachers would be jeopardized 
by implementation of Initiative 350.



5
SCOPE OF BRIEF

The Washington Education Association 
adopts the Statement of Facts presented by 
Appellees Seattle School District, et al. 
Since the WEA also supports the legal 
arguments made by appellees, the purpose of 
this brief is not to duplicate the appel­
lee's arguments but to discuss the impact 
of Initiative 350 on education. Should 
this Court decide to reverse the decisions 
of the courts below and allow the implemen­
tation of Initiative 350, such a decision 
would severely hinder efforts of Washington 
school districts to increase educational 
opportunities by desegregating their 
schools.

While this brief discusses the discrim­
inatory impact of Initiative 350 on 
minority students, the WEA recognizes 
that this is not a case which necessarily 
hinges directly on discriminatory impact.



6
Initiative 350 is unconstitutional because 
it creates an explicit race classification 
and was intended to do so.

With the exception of desegregation, 
Initiative 350 allows mandatory busing of a 
student past the student's nearest or next 
nearest school for most, if not all, 
purposes for which busing is currently used 
(473 F. Supp. at 1010, Finding of Fact 8.3) 
(hereinafter cited as F.F. __). he manda­
tory reassignment of students in a desegre­
gation program is thus singled out for 
special treatment. This creates a classi­
fication treating education matters relat­
ing to race differently from other educa­
tional matters and burdening the minority 
population in seeking adequate educational 
opportunities for their children. Since 
there is no compelling state interest 
supporting such a race classification, the



7
statute violates the Fourteenth Amendment 
in the same manner as did the housing 
classification in Hunter v. Erickson, 393 
U.S. 385 (1969). See also, Lee v. Nyquist, 
318 F. Supp. 710 (W.D.N.Y. 1970), aff' d,
402 U.S. 935 (1971).

The record amply supports the finding 
of the district court that this racial 
classification did not come about simply by 
coincidence. Initiative 350 was designed, 
marketed, and adopted in large part to 
frustrate desegregation efforts. The 
discriminatory purpose behind Initiative 
350 also compels the conclusion that 
Initiative 350 violates the Fourteenth 
Amendment. See, A rlington Heights v. 
Metropolitan Housing Development Corpo- 
ration, 429 U.S. 252 (1977).



8
While the impact of Initiative 350 

on educational programs is not the focus of 
the legal analysis, the question of the 
initiative's impact on students does affect 
consideration of the legal issues of this 
case. Discriminatory impact is one factor 
to be considered in evaluating evidence of 
discriminatory intent under the standards 
of A rlington Heights v. Metropolitan 
Housing Development Corporation, 429 U.S. 
252 (1977). The educational impact of a
desegregation program with mandatory busing 
is also important in determining whether 
the anti-busing policy of Initiative 350 
serves a compelling state interest which 
will justify the constitutionality of a 
race classification under the strict 
scrutiny given to such discrimination. 
McLaughlin v. Florida, 379 U.S. 184,
192-196 (1964).



9
Finally, as an organization of con­

cerned educators, the WEA believes that an 
examination of the education policies which 
will be frustrated by the implementation of 
Initiative 350 underscores the vital 
importance of this case. By depriving 
local school boards of control over student 
reassignment in desegregation programs, 
Initiative 350 severely limits school 
districts' ability to plan effective 
educational programs which address the 
problems of race discrimination and the 
impact of racial isolation.



10
SUMMARY OF ARGUMENT

There are many sound reasons for a 
Washington school district to find that a 
desegregation program will benefit its 
sutdents. The primary reason, of course, 
is the elimination of the effects of 
intentional segregation. Even without a 
court finding of past discrimination, a 
school district has a duty to undertake a 
desegregation program where the district 
has reason to believe that intentional 
discrimination has occurred and has not yet 
been remedied. Dayton Board of Education 
v. Brinkman, 443 U.S. 526, 637 (1979).
Discouraging school districts from under­
taking voluntary desegregation programs 
prolongs and intensifies the disadvantages 
minority students suffer under segregation.

A school district may also institute a 
desegregation program to prepare students 
to live in today's pluralistic society.



11
A diverse student body is a significant 
component of an educational program 
which attempts to instill in students the 
values of a democratic society, to teach 
students how to appreciate and respond to 
people of different races and cultures, and 
to provide a learning environment which 
stimulates the exchange of ideas.

The gains in educational achievement 
made by minority students are important 
benefits of desegregation programs. 
Reliable research indicates that desegrega­
tion programs have a positive impact on 
achievement and IQ test scores of minority 
students.

Both this Court and desegregation 
researchers have concluded that mandatory 
assignment plans may be necessary to a plan 
which is effective in reducing racial 
isolation and securing to its students the 
benefits described above. Because a 
voluntary desegregation program incurs



12
substantial expenses in advertising and 
operating special programs, a mandatory 
plan may also be a more efficient alloca­
tion of school resources than a voluntary 
program. For these reasons, the curtail­
ment of a school district's control over 
student assignment severely limits desegre­
gation planning and the benefits which flow 
from desegregation programs.

In contrast to the strong policy 
underpinnings of desegregation programs, 
the educational policy basis of Initiative 
350's anti-busing policy is not substan­
tial. Busing per se has been shown not to 
have any negative consequences for stu­
dents. Desegregation programs in general 
have not had any harmful effects on white 
student achievement. Furthermore, the 
frequently cited reasons for a "neighbor­
hood school policy", such as safety and 
parent cooperation, are speculative and are



13
outweighed by the benefits of a desegrega­
tion program which may not be effective 
without busing.

The language of Initiative 350 indi­
cates that not even its drafters believed 
that the educational advantages of "neigh­
borhood schools" are substantial. The 
broad exceptions of the Initiative would 
allow school districts to use busing 
for virtually all purposes except desegre­
gation. There is, however, no principled 
basis in a neighborhood schools policy per 
se for distinguishing between busing for 
desegregation and busing for other educa­
tional purposes.



14
ARGUMENT

I. A State Law Which Frustrates Desegre­
gation Programs Interferes With a 
School District's Duty To Provide a 
Sound Education To All Students and 
Places Special Burdens On the Efforts 
of School Districts and the Minority- 
Population To Provide Educational 
Opportunities for Minority Children
Washington school districts have been 

given a broad mission in planning educa­
tional programs for their students.̂  The 
responsibility of the Washington school 
system includes much more than teaching 
reading and writing.

The court of appeals below was correct in 
its a s s e s s m e n t  that in W a s h i n g t o n  the 
education of children in elementary and 
secondary grades is primarily a matter of 
local control. (633 F.2d at 1346). "The 
determination of educational goals, pro­
grams and curricula is a matter within the 
broad discretion of the school board." 
Peters v. South Kitsap School District , 8 
Wn. App. 809, 817, 509 P.2d 67, 73 (1973). 
See e.g. , R.C.W. 28A.58.103, R.C.W. 28A.59. 
180. A l t h o u g h  this d i s c r e t i o n  is not 
unlimited, the limitations set by state 
rules operate as accreditation standards 
rather than as the directives of a c e n ­
trally planned educational program. The 
Washington Supreme Court has found that the 
state has a duty to p r o v i d e  an a m p l e 
education for its resident children. Yet



15
The Washington Supreme Court has 

recognized that the state's children 
have a Tight to be provided "broad educa­
tional opportunities needed in the contem­
porary setting to equip our children for 
their role as citizens and as potential 
competitors in today's market as well as in 
the market place of ideas." Seattle 
School District No. 1 v. State of Washing­
ton, 90 Wn.2d 476, 517, 585 P.2d 71, 94
(1978). The court found that the education 
system is not an institution which can 
remain isolated from problems which citi­
zens face outside the classroom but is an 
enterprise with wide-ranging and crucial 
goals. The court stated:

(footnote 1 continued)
it has also recognized that much of the 
task of carrying out this duty has been 
delegated to the local school districts. 
Seattle School District No. 1 v. State of 
Washington, 90 Wn.2d 476 , 535, 585 P.2d 71, 
103 (1978).



16
Education plays a critical role in a 
free society. It must prepare our 
children to participate intelli­
gently and effectively in our open 
political system to insure that 
system's survival. . . .  It must 
prepare them to exercise their First 
Amendment freedoms both as sources 
and receivers of information; and it 
must prepare them to be able to 
inquire, to study, to evaluate and 
to gain maturity and understanding.

90 W n . 2d at 517-518, 585 P.2d at 94.
In meeting the task of providing a 

full education to Washington school chil­
dren, a local school district may find that 
a desegregation plan serves several impor­
tant purposes. Although some of these 
purposes are significant in assuring to all 
children their right to an ample education, 
we show below that minority children are 
especially benefited. Thus, as Initiative 
350 dismantles or prevents effective 
desegregation plans, it would have an 
especially severe impact on the educational 
opportunities of minority students.



17
A. Requiring a court order before a 

school district may implement the 
full range of segregation remedies
p laces a_heavy and unnecessary
burden on school districts and 
the minority populations affected

The most fundamental reason for 
implementing a desegregation program 
is, of course, the need to eliminate the 
effects of race discrimination. Washington 
schools are under a clear duty to provide 
equal educational opportunities for all 
students.

The Washington Constitution guarantees 
the state's resident children an education 
"without distinction or preference on 
account of race, color, caste, or sex." 
W n . Const, art. 9, § 1. The Fourteenth
Amendment to the United States Constitution 
also guards this right and places an 
affirmative duty on school districts to 
provide a remedy when the right has been 
violated. As this Court ruled in Green v.
County School Board of New Kent County,



18
391 U.S. 430, 437-438 (1968), school boards 
which have operated intentionally segre­
gated school systems are "clearly charged 
with the affirmative duty to take whatever 
steps might be necessary to convert to a 
unitary system in which racial discrimina­
tion would be eliminated root and branch." 
See also, Dayton Board of Education v. 
Brinkman, 443 U.S. 526, 537 (1979).

Initiative 350 will frustrate the 
performance of this duty in a school 
district which finds evidence of past 
intentional segregation but which has not 
been adjudicated to be in violation of its 
constitutional duty. The language of the 
Initiative allows mandatory busing for 
desegregation purposes only when a court of 
competent jurisdiction chooses to order 
it.2 R.C.W. 28A.26.060.

2 Despite the clear language of the initia­
tive, the State claims that an unpublished 
W a s h i n g t o n  A t t o r n e y  G e n e r a l ’s o p i n i o n  
removes Initiative 350 as an obstacle to a



19
Thus under the Initiative's terms, a 

school district cannot voluntarily adopt a 
busing program when, in its view, such a 
program is needed to eliminate segregation 
"root and branch". It must await litiga­
tion and a court order. A school district 
may find itself in the dilemma of believing 
intentional discrimination to have occur­
red, but having nonetheless to be a defen­
dant in desegregation litigation, which is

(footnote 2 concluded)
school district which, before court adjudi­
cation, finds itself under a constitutional 
duty to desegregate. (Brief for A p p e l ­
lants, pp. 37-8.) The Attorney General's 
opinion, however, finds no support in the 
language of Initiative 350. Moreover, the 
Attorney General acknowledges that his 
interpretation does not remove the risk of 
litigation from such a school district. 
Rather, a district which in good faith 
adopts a busing plan to avoid the Scylla of 
Fourteenth Amendment litigation Is likely 
to be faced wi t h  the C h a r y b d i s  of an 
Initiative 350 lawsuit.



20
frequently costly, complicated, devisive,

3and protracted.
The limited funds available to schools 

would then be spent on litigation rather 
than on needed educational programs. 
In addition, such litigation and the 
resulting diversion of scarce funds could 
needlessly polarize the school community.

A policy requiring litigation in order 
to sanction full remedial measures places a 
disproportionate and unjustified burden on 
minorities to marshal the resources needed 
to initiate and prosecure each litigation. 
The lack of such resources will preclude 
the remedy of many valid race discrimina­
tion claims.^ * 4

"It is not unusual for the process to 
span a decade and encompass 25 reported 
judicial opinions costing in excess of a 
million dollars." U. S. Comm'n on Givil 
Rights, With All Deliberate Speed: 1954-
19??, 38 (1981).
4 See H.R. Rep. No. 94-1558 , 94th Cong., 
2d Session 2-3 (1976).



21
Even with a successful lawsuit, the 

length of litigation prolongs the denial of 
educational opportunities to the victims of 
discrimination. This Court has long 
recognized the detrimental effects segre­
gated schools have upon black children. 
Brown v. Board of Education, 349 U.S. 294
(1955). (See Section I.(C), infra, pp. __. )
Requiring court adjudication before the 
imposition of a remedy which a school board 
is willing to adopt voluntarily unneces­
sarily burdens minority children in segre­
gated schools.

B . The reduction of racial isolation 
in school systems is an important 
strategy For an educational pro­
ram designed to teach students 
in a pluralistic society

This Court has recognized the broad 
discretion given to school districts in 
designing educational programs which will 
meet the needs of their students. In Swann



22
v. Charlotte-Mecklenburg Board of Educa­
tion , 402 U.S. 1, 16 (1971), this Court 
stated:

School authorities are traditionally 
charged with broad power to formu­
late and implement educational 
policy and might well conclude, for 
example, that in order to prepare 
students to live in a pluralistic 
society, each school should have a 
prescribed ration of Negro to white 
students reflecting the proportion 
for the district as a whole. To do 
this as an educational policy is 
within the broad discretionary 
powers of school authorities. . . .

In the present case, not only have 
local school districts made a similar 
policy determination (Exhibit 9), but this 
policy has been endorsed by the Washington 
State Board of Education. The State Board 
has concluded that "[T]he presence in a 
school of children from different racial 
and socioeconomic backgrounds is an impor­
tant element in the preparation of young 
people for active participation in plural­
istic democracy." (Ex. 117.)



23
A policy to prevent racial isolation 

serves several important teaching purposes. 
It is part of the way that students learn 
that there is "no one model American", ̂ a 
value at the heart of a democratic society. 
Regular contact with persons from other 
backgrounds may also give students experi­
ence which enable them to develop skills 
and attitudes needed to appreciate or 
respond positively to persons from other 
cultures or racial groups.  ̂ In a world 
in which American soldiers are sent to

P o s i t i o n  s t a t e m e n t  of the A m e r i c a n  
Association of Colleges for Teacher Educa­
tion, cited in M u l t i c u l tural Education 
TjLLQ^gh C o mpetency-Based Teacher E d u c a ­
tion 21 (Hunter, ed. 1974).

Recent national studies suggest that 
desegregation is having a positive impact 
not only students, but upon the community 
at large. Since 1954, public support for 
school integration has increased drama­
tically. The increase has been greater in 
the South, where there has been the great­
est amount of desegregation, than in the 
North and West. Rossell, "School Desegre­
gation and Community Social Change," 42 Law 
and Contemporary Problems 170-72 (197lf)7 
Moreover, studies show that adults with



24
Southeast Asia and American business 
representatives travel to the Middle East 
to bargain for necessary oil, such skills 
and attitudes may be crucial to the success 
of an individual or to the survival of this 
country.

A separate but related purpose of 
diversity in the student population is the 
provision of a learning environment which 
promotes the exchange of ideas among 
students. This Court has endorsed the 
value of training which comes about 
"through wide exposure to that robust 
exchange of ideas which discovers truth 
'out of a multitude of tongues, [rather] 
than through any kind of authoritative 
selection.'" Keyishian v. Board of
Regents, 385 U.S. 589, 603 (1967), cited

(footnote 6 concluded)
children attending public schools are more 
favorable toward desegregation than adults 
without school age children. Id. at 177.



25
in University of California Regents v. 
Bakke, 438 U.S. 265, 312 (1978) (Powell,
J.). Such training is an important part of 
preparing students to participate as 
effective citizens in this country's

7political system.
The reduction of racial and cultural 

isolation of students is not the only 
strategy needed to provide the educational 
benefits described above. All of these 
educational goals, however, would be far 
more difficult to reach in a school system 
in which racial isolation of students is
substantial. * S

Although this Court's statement refer­
red to the college environment, the Court 
has also recognized that elementary and 
secondary students are able to appreciate 
and exercise their First Amendment freedoms. 
Tinker v. Des Moines Independent Community
S c h o o 1^_D i. £_t r 1. c _t , 393 U.S. 503 (1969).
Moreover, the Washington Supreme Court has 
ruled that elementary and secondary schools 
must p r e p a r e  s t u d e n t s  to " p a r t i c i p a t e  
intelligently and effectively in our open 
political system." Seattle School D i s -
Jt£ _i£ _t_ H  1 v. State of Washington , 90
W n •2 d 4 76 , 5 1 7 , 5 85 P.2d 7 1 , 94 ( 1 978 ).



26
C . The educational achievement of 

minority students is increased by 
desegregation

Many of the desegregation programs 
instituted since the 1954 decision in 
Brown v. Board of Education/ 347 U.S. 493 
(1954) have been built on the belief that 
desegregation will remedy the deleterious 
impact of segregation on the education of 
minority children. An increase in educa­
tional opportunities from desegregation has 
been obvious in some respects, since 
desegregation has often improved the school 
facilities available to blacks in segre-

ggated schools.
Proponents of desegregation have also 

argued, however, that by removing the 
psychological disadvantages of segregated 
schools, desegregation increases the

See U.S. C o m m ’n on Civil Rights, F u l ­
filling the Letter and Spirit of the Law 
120-121 (1976).



27
opportunity of minority children to learn. 
While the multi-faceted nature of education 
makes this hypothesis difficult to measure, 
school achievement tests have been used in 
many districts to track some of the effects 
of desegregation and have shown that 
desegregation does have a positive impact 
for minority children on the achievement 
of skills measured by the test scores.

Recent reviews of desegregation 
studies have demonstrated that desegrega­
tion programs are associated with an
increase in scores by minority students

9on both achievement tests and IQ

Crain and Mahard, "Some Policy Impli­
c a t i o n s  of the D e s e g r e g a t i o n - M i n o r i t y  
Achievement Literature", 5 Assessments of 
Current Knowledge About the Effectiveness 
of S c h o o l Desegregation Strategies 175 
(1981). ( h e r e i n a f t e r  " D e s e g r e g a t i o n -  
Minority Achievement Literature"); Crain 
and M a h a rd ,  " D e s e g r e g a t i o n  and Black 
Achievement: A Review of the Research",
42 Law and Contemporary Problems 17 (1978)
( h e r e i n a f t e r  " D e s e g r e g a t i o n  and B l a ck



28
tests.1(̂ Studies of students in various 
types of segregated and racially mixed 
schools, including integrated schools 
which were not the result of desegregation 
programs, have also shown that minority 
students in predominantly white schools 
scored higher than minority students in 
predominantly minority schools.11

In an attempt to minimize the impact 
of Initiative 350 on minority students, the

(footnote 9 concluded)
A c h i e v e m e n t " ) .  M. W e i n b e r g ,  M i n o r i t y 
Students: A Research Appraisal, 112, 327
(1975); H a w l e y ,  "The New M y t h o l o g y  of 
School Desegregation", 42 Law and Con­
temporary Problems 218-19 (1978).

 ̂̂  C r a i n  and Ma h a r d ,  ” D e s e g r e t a t i o n -  
Minority Achievement Literature", at 175. 
Desegregation does not appear to have any 
effect on the achievement scores of white 
s t u d e n t s .  " D e s e g r e g a t i o n  and B la c k  
Achievement," supra n.9, at 18.

Crain and Mahard, "Desegregation-Minor­
ity Achievement Literature," supra n.9 at 
173; Hawley, "The New Mythology of School 
D e s e g r e g a t i o n " , supra n.9, at 217-218.



29
dissenting opinion in the court of appeals 
below alluded to controversy concerning 
such research. 633 F.2d 1338, 1354. Vague 
and selective citation of criticism of the 
desegregation studies, however, misrepre­
sents the findings of the research and of 
the controversy, which has often focused on
research methodology rather than results of

12the studies.
In a 1981 review of minority achieve­

ment studies, two Rand Corporation re­
searchers evaluated ninety-three deseg­
regation studies. Crain and Mahard, 
"Desegregation-Minority Achievement Liter­
ature", supra. Crain and Mahard not only 
surveyed the conclusions of the studies but 
also reanalyzed the data base for this 
research. Their analysis confirmed the 
positive effects of desegregation in 
minority achievement and demonstrated that

I 2 See N. St. John, School Desegregation 
Outcomes for Children 36 (1975). —



30
those research projects which were method­
ologically strongest showed a much clearer 
increase in black achievement scores after
desegregation than did the less reliable

13studies. Id. at 183.
Moreover, the desegregation studies 

are not only providing confirmation 
of the positive effects of desegregation on 
minority children, the studies are provid­
ing educators with information to design 
more effective desegregation programs. 
Desegregation research has identified in 
recent years some characteristics of a 
desegregation program which increase the 
probability of achieving success in deseg­
regation goals such as student achievement 
or reduction of racial isolation. See W. 
Hawley, et a1., A ssessment of Current 
Strategies About the E ffectiveness of 
School Desegregation Strategies (1981). 
13 See also, Crain and Mahard, "Desegrega­
tion and Black Achievement", supra n.9, at 
28-29.



31
For example, the studies indicate that 

"the lower the grade of first desegrega­
tion, the higher the achievement effect." 
Crain and Mahard, "Desegregation-Minority 
Achievement Literature", supra n.9 at 
1 8 1 . Crain and Mahard found that all 
studies of programs in which desegregation 
began in kindergarten significantly en­
hanced minority student achievement. Id.

In addition, the studies indicate that 
minority achievement is "directly related 
to percentage of whites in the school - the 
more whites in the school, the higher the 
minority achievement." Crain and Mahard, 
"Desegregation-Minority Achievement Liter­
ature", supra n.9 at 195. When, however, 
the percentage of white students reaches an 
optimal point, minority achievement appears 
to decrease. Id. This finding suggests to

See also, Crain and Mahard, "Desegrega­
tion and Black Achievement", supra n.9, at 
34.



32
some researchers that there needs to be a
critical mass of minority students in a

s c h o o l  to g a i n  the full a d v a n t a g e s  of

desegregation's impact on the achievement
of minority students. I d .

Such findings raise significant policy
issue for the planning of a desegregation 

1 5program. They suggest that voluntary

These conclusions also raise the ques­
tion of why desegregation has increased 
achievement scores in the programs studied. 
Possible theories include the effect of 
black students transferring to schools with 
better facilities, the increased attention 
given to curricula development and inser­
vice teacher training in a newly desegre­
gated program, and higher teacher expecta­
tions of s t u d e n t s  in a r a c i a l l y  m i x e d 
classroom than in an all—black classroom.

, C r a i n  and M a h a r d , " D e s e g r e g a t i o n  
and B l a c k  A c h i e v e m e n t " ,  su£ra n.9, at 
49; C r a i n  and M a h a r d ,  " D e s e g r e g a t i o n -  
Minority Achievement Literature," supra 
n.9, at 174.



33
plans which leave some minorities in 
predominantly minority schools while 
encouraging a few minority children to 
integrate overwhelmingly white schools may 
not be as beneficial in some school dis­
tricts as desegregation plans which signif­
icantly reduce racial isolation. These 
findings also suggest that voluntary 
transfer programs may not reach some of the 
younger children at a time when the bene­
fits of desegregation are greatest.

Such are the questions which need to 
be weighed in the balance with other 
factors which influence desegregation 
planning in any particular community. The 
challenge is complex and Herculean. The 
record in this case shows that Seattle, 
Tacoma, and Pasco labored long and success­
fully to meet that challenge. Seattle, for 
example, conducted numerous meetings with 
citizenry, teachers, and students to ensure 
community input (Joint Appendix 127-129)



34
(hereinafter J.A. __). The process it
pursued in formulating and implementing its 
plan was geared to assimilate the factors 
which have been shown to lead to a success­
ful desegregation program. This Court must 
not now sanction the attempted instrusion 
of Initiative 350 upon the achievement 
gains possible for minority students 
through the desegregation process.
H . T h e M a n d a t ory Reassignment Plans 

Forbidden By Initiative 350 Can Be
LH£0£ t a n t _ -_and Often Necessary
Com ponents  -  Of E f f e c t i v e ~ S c h o o l  
Desegregation Programs

In Swann v. Charlotte - Mecklenburg 
Board of Education, 402 U.S. 1, 29 (1971), 
this Court recognized "the importance of 
bus transportation as a normal and accepted 
tool of educational policy" in school 
desegregation cases. Indeed, the Court 
emphasized that "bus transportation has 
long been an integral part of all public 
educational systems, and it is unlikely



35
that a truly effective remedy [for consti­
tutional violations] could be devised 
without continued reliance on it." North 
Carolina State Board of Education v. Swann, 
402 U.S. 43, 46 (1971).

Desegregation research also indicates 
that a mandatory student reassignment 
policy is necessary in some school dis­
tricts. A 1979 study found that "voluntary 
desegregation plans, even those including 
magnet schools cannot reduce racial isola­
tion more than few percentage points in 
school districts over 30 percent minor­
ity."1  ̂ Rossell, "The Effectiveness of 
Desegregation Plans in Reducing Racial 
Isolation, White Flight and Achieving a 
Positive Community Response," 5 Assessment 
of Current Knowledge About the Effective­
ness of School Desegregation Strategies 4

16 The district court in this case found 
that S e a t t l e  S c hool D i s t r i c t  was 37.3 
percent minority at time of trial (473 F. 
Supp. at 998, FF 1.1).



36
(1981). Even some districts with a smaller 
proportion of minorities have not been able 
to desegregate effectively with voluntary 
plans. Id.

The Seattle experience demonstrates 
the validity of these conclusions. Despite 
voluntary transfer programs initiated in 
1963 (473 F. Supp. at 1006, F.F. 6.2, J.A. 
120), a mandatory busing plan for middle 
school students begun in 1972 (473 F. 
Supp. at 1006, F.F. 6.3, J.A. 120). and a 
magnet schools program publicized in the
1976- 77 school year and implemented in the
1977- 78 school year (473 F. Supp. at 1006, 
F.F. 6.5, J.A. 110, 123-24), the school 
district had been unable by 1977 to reduce 
the racial imbalance it believed was 
unacceptable as a matter of law and policy. 
The Seattle School Board concluded there­
fore that a voluntary student transfer plan 
was unlikely to eliminate racial imbalance 
in Seattle schools to the extent necessary



37

to meet the goals of the District (473 F. 
Supp. at 1006, F.F. 6.8, J.A. 68, 75, 106, 
111, 120) .

A mandatory student reassignment plan 
may also be necessary to design a desegre­
gation plan which best allocates school 
district resources for the overall educa­
tional program of the district. The 
Seattle experience is again illustrative.

In evaluating the merits of a manda­
tory busing plan, the Seattle School 
District had to consider whether the money 
spent in designing, implementing, and 
advertising programs to attract voluntary 
transfer students could be better spent in 
upgrading basic education. The Board also 
needed to decide whether an inefficient 
voluntary busing program which travelled 
through several neighborhoods to pick up 
students was worth the benefits which a 
voluntary busing plan produced (J.A. 72,
H I )  .



38
Furthermore, to the extent that 

voluntary busing plans in Seattle produced 
change in the racial composition of the 
schools, this change was brought about by 
the voluntary transfer of a disproportion­
ate number of minority students (473 F. 
Supp. at 1006, F.F. 6.7). The Seattle Board 
was thus faced with the question of whether 
a voluntary program was the most equitable 
manner of desegregation.

These questions are critical to the 
design of an efficient desegregation 
plan effective in meeting goals set by the 
school district. They are also questions 
which are best answered through the delib­
erations of the local community and the 
local school board, the body which is 
answerable to the local electorate, R.C.W. 
28A.57.312, charged with development of the 
school district budget, R.C.W. 28A.65.415, 
and responsible for labor negotiations with 
its staff. R.C.W. 41.59 and 41.56.



39
Denying school districts the alterna­

tive of mandatory student reassignment 
to schools other than those nearest or 
next-nearest a student's home cripples a 
school district's ability to tailor a 
desegregation program to meet the needs of 
its students and community. Furthermore, 
in practice, a prohibition on busing places 
the burden of desegregation on minority 
children. Initiative 350 thus hinders, and 
in many school districts completely pre­
vents, a school board from designing a 
desegregation program which will meet the 
purposes of a desegregation plan in an 
equitable and educationally sound manner.
Ill. There Are No Substantial Educational

Reasons For the Anti-Busing Policy

Proponents of Initiative 350 have 
contended that it advances the purposes of 
a "neighborhood school policy", which 
provides educational benefits independent



40
of the policy's effect on desegregation 
programs. Support is lacking, however, for 
the proposition that Initiative 350 serves 
substantial educational interests. Fur­
thermore, the policy proposed by Initiative 
350 undercuts the articulated benefits of 
neighborhood schools in general at the same 
time it mandates a neighborhood school 
policy for desegregation.

There is virtually no evidence that 
busing students away from neighborhood 
schools has a detrimental effect on learn­
ing. A federally sponsored 1973 study of 
desegregation in 555 school districts found 
"no evidence that busing per se has any 
negative consequences." Moreover, there 
was "no evidence that attending one's own 
neighborhood school has any effects, posi­
tive or negative, on a school's achievement 
levels or social climate", Davis, "Busing" 
2 National Opinion Research Center, South­
ern Schools: An Evaluation of the Effects



41
of the Emergency School Assistance Program 
and of School Desegregation 118 (1973).

Furthermore, the studies on desegrega­
tion have consistently found that desegre­
gation programs have had no negative effect 
on the educational achievement of white 
students, at least insofar as that is 
measured by achievement test scores. A 
recent survey of desegregation studies
concludes that "virtually every writer on

17the subject agrees" on this finding. 
Crain and Mahard, "Desegregation and Black 
Achievement", supra n.9, at 18 (1978).

The contention that increased busing 
represents a safety hazard for students is 
also questionable. Statistics on student 
transportation show that students walking 
to school are two to three times more 
likely to be involved in accidents than

See also, N. St. John, School Desegre­
gation Outcomes for Children 36 (1975); G.
O r f i e l d ,  Must We Bus? 1 2 1-124 (1978).



42
those traveling by bus. U. S. Comm'n on 
Civil Rights, With All Deliberate Speed: 
1954-19?? 38 (1981); G. Orfield, Must We
Bus? 134-135.

Most of the other benefits alleged to 
flow from an anti-busing policy are very 
speculative and can rarely be evaluated 
apart from the circumstances of the spe­
cific school district in which busing is

1 8used as part of a desegregation program.

In addition to making the neighborhood 
schools argument, some busing foes have 
contended that mandatory student reassign­
ment will l e s s e n  the e f f e c t i v e n e s s  of 
desegregation programs by triggering "white 
flight". Fears about white flight, how­
ever, appear to have been exaggerated. 
Studies show that, even with white flight, 
desegregation plans with mandatory assign­
ment do reduce racial isolation. Further­
more, the research has identified a number 
of factors in a busing program which will 
d e c r e a s e  w h i t e  flight. JS ê ê , R o s s e 11 , 
"The Effectiveness of Desegregation Plan in 
Reducing Racial Isolation, White Flight and 
Achieving Positive Community Response," 5 
Assessment of Current Knowledge About the 
E f f e c t i v e n e s s  of S c h o o l  D e s e g r e g a t i o n  
Strategies 1 (1981). Thus, the impact of
white flight on a desegregation program 
varies with the community and is subject to 
some control by the school board which 
prepares the desegregation plan.



43
For example, the argument that a neighbor­
hood school policy will be less costly must 
be weighed against the high costs of 
voluntary plans which attempt to achieve 
similar desegregation goals. The argument 
that neighborhood school facilitate better 
home-school communication must be viewed in 
light of statistics showing that over half 
the nation's school children currently ride 
a school bus. U. S. Comm'n on Civil 
Rights, With All Deliberate Speed: 1954-
19?? 37 (1981). Any change in the pattern 
of home-school communication thus depends 
on pre-desegregation busing patterns.

The language of the Initiative indi­
cates that not even the drafters of Init­
iative 350 found the educational benefits 
of neighborhood schools to be significant 
except in the context of opposition to a 
desegregation plan. If, for example, a 
Washington school district finds that 
certain schools are "inadequate" because of



44
"lack of physical facilities", the district 
may allocate its resources either to 
upgrade the facilities or to bus the 
children in nearby attendance zones to 
other more adequate schools. RCW 28A.26. 
101. Under Initiative 350, the school 
district which finds that its educational 
program is unfit because of segregation 
does not have the flexibility to consider 
busing as a possible option for efficient 
allocation of its resources in remedying 
the problem. If the benefits flowing from 
a neighborhood school policy were truly 
substantial, there would seem to be no 
principled basis for distinguishing these 
two situations.

An examination of the alleged educa­
tional benefits of Initiative 350's anti­
busing policy leads inexorably back to the 
central legal question of whether the 
actual purpose of Initiative 350 was 
invidious discrimination on the basis of



45
race. With its language providing poten­
tially very broad exclusions regarding 
schools which are "inadequate" because of 
"lack of physical facilities" or "over­
crowding", the so-called "neighborhood 
schools" policy of Initiative 350 could be 
interpreted to justify mandatory student 
reassignment for almost any purpose but 
school desegregation.

An evaluation of the eductional 
effects of the anti-busing policy of 
Initiative 350, therefore, would not be 
complete without consideration of the 
lessons which racially discriminatory laws 
teach. A state which mandates for its 
children the right to an education free of 
race discrimination, but allows school
1
policies which discriminate on the basis of 
racial concerns or which increase for 
minorities the difficulties of remedying 
discrimination is sending out, at best, a



46
mixed message to its school children. Such 
a lesson certainly outweighs the specula­
tive benefits of a neighborhood schools 
policy.

Thus, a review of objections to 
busing, of the alleged benefits of neigh­
borhood schools, and of the operation of 
Initiative 350 reveals that the anti-busing 
policy of this Initiative does not con­
tribute to a strong educational program for 
Washington schools.

CONCLUSION
For the above reasons, the implementa­

tion of Initiative 350 will have the effect 
of denying educational opportunities to all 
school children, with disproportionately 
negative effects on minority students. 
These considerations support the policy of 
allowing a local school board the flexibil­
ity to design a desegregation program 
without being restricted by the discrimi­
natory proscriptions of Initiative 350.



47
In light of the arguments advanced by 

Appellees and supported by this brief, the 
judgment of the court of appeals should be 
affirmed.

Respectfully submitted,
JUDITH A. LONNQUIST
Durning, Webster and Lonnquist
FAITH HANNA
Office of General Counsel
Attorneys for the Washington 
Education Association