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

    No. 81-9

IN THE

S u p re m e  C o u r t  of tfje U n ite d  IMatesf
O ctober T erm , 1981

State of W ashington, et at..

v.
Appellants,

S eattle S chool D istrict N o . 1, et al..
Appellees.

On Appeal From The United States 
Court Of Appeals For The Ninth Circuit

A M IC U S C U R IA E  B R IE F  O F T H E  
N A TIO N A L S C H O O L  BO A RD S A SSO C IA TIO N

G wendolyn H. G regory 

Counsel o f Record
D eputy Legal Counsel 
N ational Schcxjl Boards A ssociation 
1055 Thomas Jefferson Street, N.W. 
Washington, D.C. 20007 
(202) 337-7666
A ugust W. Steinhilber 
A ssociate Executive D irector 

and Legal Counsel 
N ational School Boards A ssociation

T homas A. S hannon

Executive D irector

N ational School Boards A ssociation



I

TABLE OF CONTENTS
Page

Interest of Amicus Curiai-: .................................................................  1
Issue Presented i or R e v ie w ..............................................................  2

A r g u m e n t ....................................................................................................  2
Introduction ............................................................................  2
Voluntary Plans Work Better Than Mandated Plans 4
Failure To Take Local Action Invites Judicial Intervention 7
The Role Of The Federal Governm ent................................ 9
The Function Of Local School B oards...............................  10

Conclusion ...............................................................................................  17

A p p e n d ix ................................................................................................. .. • la



II

TABLE OF AUTHORITIES
Cashs: Page
Brown v. Board o f Education (I), 347 U.S. 483 (1954) . . .  3
Brown v. Board o f Education (II), 349 U.S. 294 (1955) . . .  15
Citizens Against Mandatory Busing v. Palmason, 80 Wn.2d

445, 495 P.2d 657 (1972)................................................  16
Goss v. Lopez, 419 U.S. 565 (1 9 7 5 )...................................... 7
Mil liken v. Bradley (1), 418 U.S. 717 (1974) .......................  15
State ex rel. Citizens Against Mandatory Busing v. Brooks, 80

Wn.2d 121,492 P.2d 536 (1972) .................................. 16
Swann v. Charlotte-Mecklenberg Board o f Education, 402

U.S. 1 (1971).....................................................................  3
Tinker v. Des Moines Comm. School Dist., 393 U.S. 503

(1969) ..................................................................................  7
Wood v. Strickland, 420 U.S. 308 (1975).............................  7

Statutks:
Emergency School Aid Act, 20 U.S.C. §§ 3191 et seq. . . .  10
III. Rev. Stat. § 10.21.3 ........................................................... 16
111. Rev. Slat. § 11-1414........................................................... 16
Initiative Measure No. 350 (codified at Wash. Rev. Code ch.

28a.26) ............................................................................. passim
Washington Basic Education Act. ch. 359, 1977 Wash. Laws,

1st Ex. Sess........................................................................  11
Wash. Rev. Code ch. 28A.02.020 ..........................................  15
Wash. Rev. Code ch. 28A.58 ................................................. 15
Wash. Rev. Code ch. 28A.59 .................................................  15

Othhr Ai moRiTiHs:
Address ol the President to the New York Partnership, Incorpo­

rated Luncheon, January 14, 1982 .........................  9, 17-18
Journal of the Senate, 45th Wash. Leg., Vol. 1, at 1184-6 12-13
Journal of the Senate, 45th Wash. Leg., Vol. II, at 2871-72 14
Seattle Times, March, 1981 ....................................................  14
Seattle l  imes, October, 1981 ..................................................  5



IN THE

Supreme Court of tfje Hmteb States
O ctober T erm , 1981

No. 81-9

State or Washington, et al., 

v.
Appellants,

Seattle School D istrict No . I, et al.,
Appellees.

On Appeal From The United States 
Court Of Appeals For The Ninth Circuit

A M IC U S C U R IA E  BRIEF OF THE 
NATIONAL SCHOOL BOARDS ASSOCIATION

INTEREST OF AMICUS CURIAE

Amicus curiae, National School Boards Association, is a 
nonprofit federation of this nation’s state public school boards 
associations, the District of Columbia school board, and the 
school boards of the offshore flag areas of the United States. It 
is organized to promote the general advancement of education, 
to encourage the most efficient and effective governance and 
administration of the public schools, and to preserve the unique 
American tradition of local citizen control of schools, with 
education policy decisions rendered by those directly account­
able to the public through the elective or appointive process. In 
its 41st year, National School Boards Association is the only 
major educational organization representing school boards and



2

their members. Its constituents are responsible for the education 
of more than 95 percent of this nation’s public school children.

The individuals who compose this nation’s school boards are 
elected or appointed community representatives, most of whom 
are not professional educators. They are responsible under state 
law for the fiscal management, staffing, continuity, and educa­
tional productivity of the public schools within their jurisdic­
tions. The National School Boards Association submits this 
brief in the belief that the issue of school desegregation con­
tinues to be one of the most pressing in this country. In light of 
today’s economic climate, it is important that every child, 
regardless of race, color, or national origin, be provided with an 
equal chance in the public schools of this country. If this Court 
were to find the Initiative that is the subject of this case to be 
constitutional, that decision could lead to similar legislative 
actions and constitutional interpretations in other states. Such a 
decision could threaten the ability of the nation’s public school 
boards to ensure by proper administrative means that education 
is provided to all students without regard to race, color, or 
national origin and in a climate of cooperation, not coercion.

ISSUE PRESENTED FOR REVIEW

May fundamental constitutional guarantees, upheld volun­
tarily by elected public officials, be constrained by a law —  
Initiative 350 —  that prohibits the assignment of students to 
nonneighborhood schools for desegregation purposes?

ARGUMENT

Introduction
National School Boards Association agrees fully with the 

constitutional arguments made by appellee, Seattle School Dis­
trict, and incorporates by reference the arguments set forth in 
the brief filed herein by appellees. Because the constitutional 
issues are fully briefed by those appellees, Amicus will address



3

the broader and important policy questions presented by this 
case.

Since 1954, in the landmark case of Brown v. Board o f  
Education, 347 U .S. 483 (1954), hundreds of school districts 
have been ordered  by courts to take action to desegregate their 
schools. In virtually every case, the action has been met with at 
least some adverse community reaction. On many occasions, 
the court has been left with no alternative but to develop a plan 
of its own. See, e .g ., Swann v. Charlotte-Mecklenberg Board  
o f Education, 402 U.S. 1 (1971).

Citizens, courts, and the federal government have argued 
over the years that local school districts should be left to 
themselves to effect the management decisions that result in the 
desegregation of their schools. Who is in a better position than 
the locally selected and accountable school board to call in the 
members of the community to discuss an issue that affects all of 
the community? Who is in a better position to organize citizen 
involvement in developing alternative assignment plans? Who 
is in a better position to ensure that teachers and administrators 
are trained to deal with the myriad problems entailed in the 
development of an effective desegregation effort?

Most importantly, who better than the school board is in a 
position to ensure that the desegregation effort works and is not 
merely an antagonizing and futile exercise.

The real and troubling question contained in the legal argu­
ments over Initiative 350 is whether fundamental constitutional 
guarantees, upheld voluntarily by elected public officials, may 
be constrained by state laws enacted in the heat of popular 
sentiment to limit traditional local discretion. Clearly, no such 
limit can be tolerated.

In sum, this now is the situation before this Court: A consci­
entious school board, recognizing an evil that demanded red­
ress, sought to afford that redress, and did so without prodding 
of the courts. It now finds its effort thwarted by an initiative



4

that, from the start, was intended to destroy the voluntary 
desegregation plan —  and its manifest advantages —  and force 
the board to wait to be sued to redress the wrong it sought itself 
to remedy.

The Seattle school board, like most of its 16,000 or so 
counterparts in the United States, is not a perfect institution. 
Nevertheless, it took agressive action of its own volition to 
desegregate its schools.

Seattle’s voluntary plan, drawn up after considerable con­
sultation with citizens, community leaders, and interest groups, 
was less than perfect —  a fact acknowledged candidly enough 
by the appellee itself. Yet this imperfect plan has ended racial 
imbalances in the com m unity’s public schools over the past 
four years and in the editorial view of the Seattle Times (March 
16, 1981), it has “forestalled the threat of federal court interven­
tion in local school district affairs.” Moreover, the Seattle 
board, which sought to avoid the adverse consequences of 
court-ordered desegregation —  perhaps taking a lesson from 
such contemporaries as the Boston School Committee —  now 
finds itself being told by the State of W ashington, and also by an 
inconsistent federal government, that it may not solve its prob­
lems by itself. Indeed, it must wait to be sued  to do so. Only 
then —  and presumably after years of wrenching community 
upheaval and expensive litigation diverting resources and atten­
tion from education, if modern history is to be a guide —  will a 
plan be ordered by the courts. That such a proposition defies all 
logic is self-evident.

Voluntary Plans Work Better Than Mandated Plans
The Seattle school board directed its superintendent and staff 

to seek cooperation from all quarters in planning and im­
plementing its voluntary desegregation effort. These adminis­
trators, in turn, worked closely with principals and teachers, 
among others. This network of cooperation, which has proved



5

successful in implementing many new programs in school 
districts because it encourages the active involvement of those 
most closely affected, may be expected to neutralize if not 
defeat the predictable efforts of those who organize to thwart a 
school district’s desegregation plan. History in other communi­
ties has shown that this process, if not employed on behalf of 
equality, will be used against a desegregation plan.

Should the direct participants in the schools first be incited to 
work as a team against desegregation, which often happens 
when desegregation plans must be imposed by the courts, little 
chance remains that the team can be prompted to change sides to 
work effectively and willingly fo r  successful desegregation. 
The foresight of the Seattle board in attempting to ensure a 
cooperative and voluntary desegregation plan and eliminate the 
need for judicial intervention now is rewarded by a posture of 
the State of W ashington that says effectively that (1) a school 
system can be resegregated by popular will in defiance of civil 
rights statutes and Constitutional prerogatives and (2) that no­
thing less than a court order can desegregate the public schools 
in the state.

A statement to the Seattle Times of October, 1981, by the 
leader of the group that sponsored Initiative 350 belies appel­
lant’s contention that the referendum is racially neutral and not 
directed toward desegregation, and, in fact, argues that the will 
of the majority can override any Constitutional guarantee: “the 
people . . . have the right, through the ballot box, to express 
their judgm ent on desegregation, or for that matter, any similar­
ly sensitive subject.’’ Under such logic, couldn’t slavery there­
fore be reviewed and presumably reinstated by popular referen­
dum or universal suffrage discharged?

Equally preposterous is any contention that Seattle, or any 
other school district, is better off waiting to be sued before it 
acts to desegregate its schools. Should Initiative 350 be vali­
dated by the Court, the Seattle school board, once it is sued,



6

either will he forced to fight in court against that future plaintiff 
or to acquiesce and sign a consent agreement that would be 
made an order of the court. Should the latter alternative be 
chosen, it would allow no time for the gradual development of 
support for the desegregation effort, which already is under way 
in Seattle, and would aggravate the community strife that often 
accompanies court-ordered desegregation.

That such strife will follow any plan is probable. Evidence 
abounds that shows many parents oppose the transfer of their 
children from nearby schools for purposes of desegregation. 
Amiens curiae by no means asserts, therefore, that the Seattle 
voluntary desegregation plan was —  nor is any school board’s 
voluntary desegregation plan likely to be —  “voluntary” on the 
part of parents. Amicus argues, rather, that a desegregation 
effort handled voluntarily and cooperatively, with the full parti­
cipation of the local school board, administrators, teachers, and 
community leaders, is invested with the potent opportunity of 
ensuring that the community understands why the action is 
being taken and is given reason to believe that it has contributed 
to the plan and stands to lose if the plan fails.

Initiative 350 prohibits such voluntary action by the school 
board not only in situations where segregation is unintentional 
(and, thus, presumably exempt from a court order), but also 
extends its prohibition to any reassignment of pupils for deseg­
regation purposes —  a crucial distinction and qne misstated by 
the federal government in its brief. In other words, the Initia­
tive’s prohibition applies even in cases wherein the school 
board concedes, publicly or privately, that the segregation was 
or might well have been caused intentionally by the actions of 
that board or a previous board. Consequently, Initiative 350 
prohibits a school board from taking action to undo unlawful 
and unjust racial segregation and  from heading off the lawsuit 
that inevitably will result from such injustice.



7

Failure To Take Local Action Invites Judicial Intervention

Initiative 350, far from ensuring that desegregation lawsuits 
will not be visited upon the school boards of the state of 
Washington, ensures that the courts will be called upon to 
redress grievances that might have been settled voluntarily, 
locally, and non-judicially, Surely both the State of W ashing­
ton and the federal government know from recent history if not 
from common sense that, in a society such as ours, a grievance 
not resolved at a lower level will seek redress at a higher one, 
that a resolution will be imposed from above, and that the effect 
of that resolution will be more pervasive than would have been 
the case had the matter been settled at the lower level in the first 
place.

If local school boards in Topeka and elsewhere had not 
carried on de jure  school segregation or had moved to correct it 
in the early fifties, what need would there have been for the 
Brown decision and its wrenching consequences?

If local school boards in Des Moines and elsewhere had acted 
to protect and promote the constitutionally guaranteed rights of 
Americans, rather than to curtail them, what need would there 
have been for the T in ker1 2 * decision and the severe restrictions it 
placed upon prerogatives of school boards?

If local school boards in Ohio and Arkansas and elsewhere 
had recognized that due process is a right not to be denied 
Americans, would there have been any need for the G o ss7 or 
W ood ' decisions that place school board members and school 
administrators in danger o f having to pay personal damages for 
violating the constitutional rights of their students?

•Tinker v. Dcs Moines Comm. School Dist., 393 U.S. 303 (1969).

2Goss v. Lopez, 419 U.S. 565 (1975).

’ Wood v. Strickland, 420 U.S. 308 (1975).



8

If local school boards everywhere had moved to eradicate sex 
discrimination from their school systems, what need would 
there have been for the federal government to impose Title IX 
regulations upon them?

The Seattle school board, seeking to avoid the errors of its 
counterparts, and hoping to obviate the consequent risk of 
profoundly pervasive judicial remedy, now finds itself thwarted 
and faced with having to wait to be haled into court.

As if the specter of such pervasive judicial remedy were not 
enough to establish the desirability of voluntary desegregation 
plans, then the need to gain the time afforded by voluntary plans 
ought to be. As the Court is well aware, the process of school 
desegregation involves a great deal more than merely moving 
students from school to school. In addition to the myriad 
technical details of the process, a vital need exists for prepara­
tion for the social phenomena of desegregation and especially 
for maintaining or improving the quality of education as deseg­
regation occurs. Reassigned teachers need training in human 
relations and intercultural understanding. Many also need in- 
service training to improve their teaching skills. Some transfer­
red students need remedial education. Curriculum revision, 
instructional m aterials, teacher aides, and guidance and 
counseling all might be needed to maintain the quality of 
education. And. of course, waiting in the wings of any deseg­
regation effort is the potential villain —- “white flight.”

No sophisticated research is required to conclude that the 
complex task of desegregation can best be accomplished by a 
school board that has adopted a plan of its own and in which it 
has invested its own integrity. More importantly, a school 
board, with a minimum of disruption and reassignments, might 
avoid serious future segregation —  if it identifies the problem 
early and is free  to aet voluntarily to resolve it. If a school board 
is forced, as Initiative 350 requires, to wait for a court order and 
the divisiveness resulting from lawsuits, the problem might no 
longer be soluble.



9

The Role Of The Federal Government

Originally, the federal government, through the Department 
of Justice, intervened in this case as a Plaintiff Intervenor on the 
side of the Seattle school board in its challenge to the constitu­
tionality of Initiative 350. Recently, after a change in Adminis­
trations, the federal government has chosen to reverse its posi­
tion and now has filed a brief arguing that Initiative 350 is 
constitutional.

Ironically, the Administration that has reversed the position 
of the federal government in the case, now having it favor 
Initiative 350, is the same that has been, and is, dramatically 
reducing the federal role in education by massive cuts in fund­
ing and by urging voluntary, local solutions to problems beset­
ting American society. See, Address of the President to the New 
York Partnership, Incorporated Luncheon, January 14, 1982. 
The effect o f the federal governm ent's new position in this case 
is to ensure exactly the opposite. If Initiative 350 stands before 
this court, the local Seattle school board will be forced to wait 
for a federal court to enter an order mandating a desegregation 
plan. If the Initiative falls before this Court, the local Seattle 
board will be free to continue with its voluntarily adopted local 
plan. Effectively, the federal government, in its zeal to placate 
the opponents of busing at the risk of resegregating Seattle’s 
schools, now is arguing for court-ordered desegregation.

This is a newly adopted position of the Executive. It flies in 
the face of the federal governm ent’s history of promoting 
voluntary, as opposed to forced, solutions —  even as to “unin­
tentional” segregation. Witness former President N ixon's mes­
sage to Congress on May 21 ,1970, in support of the Emergency 
School Assistance Act of 1970, which the Nixon Administra­
tion had designed to assist local school districts in desegregat­
ing their schools. Wrote Mr. Nixon:

The educational effects o f racial isolation, however, are 
not confined to those districts that previously operated



10

dual systems. In most of our large cities, and in many 
smaller communities, housing patterns have produced ra­
cial separation in the schools which, in turn, has had an 
adverse effect on the education of the children. It is in the 
national interest that where such isolation exists, even 
though it is not of a kind that violates the law, we should do 
our best to assist the local school districts in attempting to 
overcome its effects.

In some cases this can best be done by reducing or elimi­
nating the isolation itself. . . . this Act deals specifically 
with problems which arise from racial separation, whether 
deliberate or not, and whether past or present. It is clear 
that racial isolation ordinarily has an adverse effect on 
education. Conversely, we also know that desegregation is 
vital to quality education —  not only from the standpoint 
of raising the achievement levels of the disadvantaged, but 
also from the standpoint of helping all children achieve the 
broad-based human understanding that increasingly is 
essential in today’s world.

President Nixon’s message then outlined specific provisions 
of the Act designed to assist local school districts in eliminating 
(le facto  as well as tic jure  segregation. Wrote the President:

|0 |u r  goal is a system in which education throughout the 
nation is both equal and excellent, and in which barriers 
cease to exist. This does not mean imposing an arbitrary 
“racial balance” throughout the nation’s school systems. 
But it should mean aiding and encouraging voluntary/ 
efforts by communities which seek to promote a greater 
degree of racial integration, and to undo the educational 
effects of racial isolation. (Emphasis supplied.)

The Emergency School Aid Act was passed by the Congress 
and, with revisions, has been extended to this date. 20 U.S.C. 
§§ 3191 et seq.

The Function Of Local School Boards
The federal government and the State of Washington argue 

that Washington — unlike other states —  enjoys complete 
authority to enact whatever education policies it deems advis­
able. Initiative 350 is said to be merely an extension of that state



power and not an unusual departure from the norm. They argue 
that W ashington is “unique” because its state legislature and 
state department of education have control of the education 
policies of local school boards.

However, the unusual characteristic of W ashington, if any, 
does not relate to policy-m aking. As a result of school funding 
decisions, the legislature passed a school financing statute 
which was intended to result in the bulk of the funding for 
“basic education” to be taken over by the state through a 
state-wide formula of block grants. The law also included a 
10% lid on the amount of property taxes which could be levied 
by a school district. Were the original concept of that legislation 
to have been implemented, at least the school financing system 
in Washington could have been said to be “unique.”

But —  state funding for education amounts to only 55% and 
each year the legislature lifts the lid on local levies to allow 
school districts to make up the difference. Therefore, in prac­
tice even the financing of school districts in Washington is not 
unique.

Further, like the rest of the 50 states, save Hawaii, education 
policy-making in W ashington is reserved to the local school 
districts.

Even the school financing statute, Washington Basic Educa­
tion Act, Ch. 359, 1977 Wash. Laws, 1st Ex. Sess., amended 
by ch .250 , 1979 Wash. Law s., 1st Ex. Sess., which amounts to 
a mere fraction of W ashington school legislation, was passed 
with great deference to local control, as a few excerpts from the 
legislative history will show:

Senator Bottiger: “Would Senator McDermott yield to 
another question? Senator McDermott, 1 sent you the 
materials on the plan used by the Franklin-Fierce school 
district of interims and programs o f that nature and asked 
you whether this bill would prevent a school district from



12

using that kind of innovative program. They have one 
month a year where the children are offered two courses 
which they take intensive study. In other words, in the 
morning they take one class; in the afternoon they take 
another. Is that kind of program prohibited by this bill?

Senator McDermott [Chairman of Senate’s Education 
Committee; floor leader for the Basic Education Act in the 
Senate | : “Senator Bottiger, we have tried to write a bill 
that was flexible fo r  the local districts to make any prog­
ram that made sense to them fo r  their children .”

“ In addition, this bill does not have an effective date 
until the first of September, 1978, which means that Su­
perintendent Brouillet will have time to do a survey to tind 
out if there is any district in the state where we have 
precluded them from any kind of innovative program. The 
reason of setting the effective date at that point was to give 
us time to make sure that we haven’t in any way taken away 
local control o f  how the hours are distributed or how the 
programs are offered in the local school districts. So, 
there is no intention to bind the hands of any district like 
Franklin-Pierce that has really a very excellent program in 
area work skills.”

Journal of the Senate, 45th Wash. Leg., Vol. I, at 1184 (April
21, 1977) (emphasis added).

Senator McDermott (responding to point of inquiry: 
“Senator Clarke raises the question of whether or not we 
are saying that there must be a one to twenty ratio ot 
teachers to students in the classroom. That is not the 
intention of this provision. It is merely to say we will 
prov ide enough money for fifty teachers, certified people, 
for every one thousand children. We left to the local 
district the decision as to whether that means fo rty  
teachers in the classroom, or forty-five, or thirty-five and 
the rest administrators. That kind of decision we fe lt  was 
best left at the local level.



13

Id. at 1185-86 (emphasis added).

Senator Mardesich: “Would Senator McDermott yield 
to a question? Senator M cDermott, on page 8, section 5, 
line 29 of the bill, there is language reading, ‘PRO­
VIDED, That by the third year following the effective date 
of this 1977 amendatory act, the ratios included in the 
formula shall reflect not less than fifty certificated person­
nel to one thousand students and one classified personnel 
to three certified personnel.’ Is it the intent of that lan­
guage, as incorporated by the committee, and in the bill 
now on the floor, in any way mandate that class size as 
related to that ratio, whether fo r  the funding of that basic 
education or all education in either event? Could I have a 
‘yes' or ‘no’, please?

Senator McDermott: “The answer to your question is 
‘no’.”

Id. at 1186 (em phasis added).

Senator Grant: “Would Senator M cDermott yield? 
Senator M cDermott, I am looking at page 5, the definition 
of com pensation. I see that you have defined it as one 
hundred and seven percent of the average salary of a 
certificated and one hundred and fourteen percent of the 
average salary for classified personnel. Now, how did you 
arrive at that seven and fourteen percent figure? What is 
included? Exactly what is included as far as benefits in that 
seven and fourteen percent?

Senator McDermott: “Senator Grant, there are several 
ways to define something. One way is to be specific about 
it and another way is to leave local control and put out a 
specific amount of money and let the local districts use 
that money fo r  a benefit package o f their choosing. H istor­
ically in this state, the benef it package has been decided at 
the local level, and we chose to define compensation as the 
amount of money that is presently in the budget and has 
been historically in the budget; that is, seven percent for 
certified people and fourteen percent for the classified 
people. There is a great diversity of benefit packages out in



14

the districts and it is impossible to say what every district 
uses that money for.
.+ * * *

Senator Grant: . . So what about health insurance
and dental plans?”

Senator McDermott: “That sort o f  thing differs from  
district to district. It certainly is included in various dis­
tricts. Senator Grant, the money could be used fo r  any 
kind o f health and welfare kind o f  program. We do not 
specify, we never have specified, we have always given the 
money to the districts and let them do as they choose.

Id., Vol. 11, at 2871-72 (June 19, 1977) (emphasis added).

The constitutions of all 50 states provide for the potential 
power of state legislatures and state departments of education to 
render decisions pertaining to the educational endeavors of the 
local school districts. Only the state of Hawaii has chosen to 
operate under a single statewide school district. The remaining 
49 states divide their states into local school districts, with 
boundaries that may be changed by the state. Furthermore, 
every state legislat ure (that of the State of Washington included) 
reserves potential power to render even the most minute deci­
sions regarding the operation and management of local public 
schools, decisions pertaining to building assignments for stu­
dents, teacher assignments, school closings, and the like. That 
such power rarely is exercised at the state level —  save for the 
promulgation of general policies and guidelines —  is the result 
of common sense and historical precedent. Longstanding ex­
perience demonstrates that decisions such as these are best 
rendered at the local level.

The American tradition of local citizen control of public 
education dates back to the Colonial days. In 1647, the Mas­
sachusetts Bay Colony required larger towns to create and 
maintain schools. The colonists themselves decided all school- 
related matters at the town meeting.



15

With the ratification of the United States Constitution, all 
legal responsibilities of public education effectively were left to 
the states, not to the federal government. The powers of provid­
ing free and compulsory education in elementary and secondary 
schools are delegated by 49 of the 50 states to local school 
hoards. That has been the case in Washington since it was a 
territory.

The structure of the educational system in Washington para­
llels the general pattern of organization found in most other 
states. The appendix illustrates this by comparing Washington 
laws to those in a number of her sister states, including those 
which this Court has labelled as reflecting state control. E.g., 
Milliken v. Bradley (I), 418 U.S. 717 (1974) (Michigan); 
Swann v. Charlotle-M echlenburg Board o f  Education, 402 
U.S. I (1971) (North Carolina); Brown v. Board o f  Education, 
(If), 349 U.S. 294 (1955) (Delaware, Kansas, South Carolina, 
and Virginia).

Each state, including Washington, divides the power to 
educate among a state board of education, a state superinten­
dent, and local boards of education. Washington and Arizona 
are unique among the states specifically examined because the 
local boards are expressly included in a general statute that 
divides the educational authority. The Washington statute pro­
vides that “ |t |h e  administration of the public school system 
shall be entrusted to such state and local officials, hoards, and 
committees as the state constitution and the laws of the state 
shall p rov ide.” Wash. Rev. Code 28A .02.020 (em phasis 
added). Thus, Washington law envisions that the local boards 
of education shall have the power to deal with local matters, at 
least as far as other more specific statutes provide.

The specific powers of local boards in Washington are de­
fined in W ash. Rev. Code 28A .58 and 28A .59. Like many other 
states, Washington reserves the possibility of limits on a local



16

board’s latitude and discretion. However, initial control of local 
educational concerns is with the local boards in Washington, 
and in practice effective control remains at the local level.

It is difficult to generalize as to whether a specific area is 
within local control or state control as no state grants absolute 
power to its local boards. In each of these states, the state board 
or the legislature retains a general supervisory power and the 
power to determine general policy and goals. Even in Illinois, 
where the local boards have considerable power, the legislature 
often regulates by law specific areas that otherwise would be 
considered within the realm of the local boards.4 E .g ., III. Rev. 
Sta t.§  I l-1414(Cum . Supp. 1981) (regulates the flashing light 
warning system on school buses and the method for loading and 
unloading students).

Before Initiative 350 was passed, it was beyond dispute that 
local school districts in Washington were solely responsible for 
creating and revising intradistrict attendance zones, regardless 
of the policies guiding such decisions. For example, in State ex 
rel. Citizens Against Mandatory Busing v. Brooks, 80 Wn.2d 
121,492 P.2d 536 (1972), the Washington Supreme Court held 
that plaintiffs’ request for a recall election due to their dissatis­
faction with the Seattle board’s first mandatory busing plan 
would not be proper because the members of the board were 
acting within their lawful discretion. Further in Citizens Against 
Mandatory Busing v. Pal mason, 80 W n.2d 445, 495 P.2d 657 
(1972), the state supreme court overturned a lower court’s 
injunction against implementation of the mandatory busing 
plan in Seattle. After careful analysis, the supreme court con­
cluded that the local board had the requisite power and acted 
properly in devising the plan. Thus, regardless of any formal

4 Ironically, in Illinois the state legislature and the state board of education 
have imposed a duty on local boards to consider the elimination of segrega­
tion in creating or revising attendance units. III. Rev. Stat. § 10.21.3.



17

reservation o f state power to supervise local boards of educa­
tion, which is true in all states, local boards in Washington in 
fact and in practice were responsible for student assignment and 
for devising and implementing desegregation plans within their 
districts. Consequently, the Court of Appeals was quite correct 
when it spoke of “a state-wide majority *** usurplingl tradi­
tional local authority over school board educational policies.” 
633 F.2d at 1344 (emphasis added).

CONCLUSION

If control overeducation is to be retained at its most effective 
level, final decision making must stay with representative 
school boards. Through school boards, taxpayers are assured  
o f a direct channel fo r  influencing school policy.

Genuine involvement of teachers, students, parents, and 
civic groups in the development of school district policy is the 
best way to ensure harmony within the community and to gain 
broad-based support for decisions made. But it properly re­
mains the school board’s function to assess the opinions of the 
various interest groups, and then to establish the policies and 
programs which in the board’s best judgment meet the unique 
needs of the children.

On January 14 the President of the United States addressed 
the New York Partnership, Incorporated luncheon in New York 
City on the subject of voluntary action to resolve local problems 
in the community, Mr. Reagan’s remarks belie the position 
taken by his Administration in this case.

The key to rebuilding communities is individual initiative, 
leadership, personal responsibility . . .

Only when the human spirit is allowed to invent and 
create, only when individuals are given a personal stake in 
deciding their destiny, in benefitting from their own risks, 
only then can society remain alive, prosperous, progres­
sive and free . . .



18

We want to see community partnerships between the pri­
vate and public sector in every community in America . . .

Community groups are part and parcel of our national 
heritage. They respond to our desire for cooperation, 
sympathy, teamwork and brotherhood. They help to shape 
our lives. They are close to the problems we face and they 
can best find the solutions we seek.

School desegration is one of the most important issues for 
communities and school boards. The solutions to the problems 
created by segregation are difficult enough if school boards take 
them on voluntarily in a general positive spirit. If voluntary 
desegregation is foreclosed to local school boards, those prob­
lems will be increased a hundredfold. The National School 
Boards Association urges this Court to preserve for local school 
boards the tools to assure equal opportunity. Not all school 
districts have the foresight and courage to do what the Seattle 
school district did in this case. But —  where school boards take 
on the task of voluntarily desegregating their schools, the public 
and the courts owe a moral and constitutional duty to those 
boards to support their efforts.

Respectfully submitted,

G wendolyn H. G regory 

Counsel o f  Record

D eputy Legal Counsel 
N ational School Boards A ssociation 
1055 Thomas Jefferson Street, N.W . 
Washington, D C. 20007 
(202) 337-7666

A ugust W. Steinhilber 
A ssociate Executive D irector 

and Legal Counsel 
N ational School Boards A ssociation

T homas A . S hannon 
Executive D irector 
N ational School Boards A ssociation



APPENDIX



la

APPENDIX
Constitutional Language Creating School System:

Washington “The legislature shall provide for a general and 
uniform system of public schools. I he public 
school system shall include common schools, and 
such high schools, normal schools, and technical 
schools as may hereafter be established.. . .” 
Wash. Const. Art. IX, Sec. 2.

Arizona “The legislature shall enact such laws as shall 
provide for the establishment and maintenance of a 
general and uniform public school system, which 
system shall include kindergarten schools, 
common schools, high schools, normal schools, 
industrial schools, and a university. . Ariz. 
Const. Art. XI, Sec. 1.

Colorado “The G eneral Assembly shall, as soon as 
practicable, provide tor the establishment and 
maintenance of a thorough and uniform system of 
free public schools throughout the state. ."Colo. 
Const. Art. IX, Sec. 2.

Delaware “The General Assembly shall provide for the 
establishment and maintenance of a general and 
efficient system of full public schools.. . Del. 
Const. Art. 10, § 1.

Illinois “The State shall provide for an efficient system of 
high quality public education institutions and 
services.. . ."III. Const. Art. X, Sec. 1.

Kansas “The legislature shall provide for intellectual, 
e d u c a t io n a l ,  v o c a tio n a l and s c ie n t i f ic  
improvement by establishing and maintaining 
public schools.. . .” Kan. Const. Art. 6, § 1.

Maryland “The General Assembly . . . shall by law establish 
throughout the State a thorough and efficient 
System of Free Public Schools.. . Md. Const. 
Art. VIII, Sec. 1.



2a

Michigan “The legislature shall maintain and support a 
system of full public . . . schools as defined by 
law.” Michigan Const. Art. 8, § 2, cl. I.

Minnesota “The stability of a republican form of government 
depending mainly upon the intelligence of the 
people, it is the duty of the legislature to establish a 
general and uniform system of public schools.. . 
Minn. Const. Art. XII, Sec. 1.

New Jersey “The legislature shall provide for the maintenance 
and support of a thorough and efficient system of 
free public schools.. . .” N.J. Const. Art. VIII, 
Sec. 4, Para 1.

North Carolina “The General Assembly shall provide by taxation 
and otherwise for a general and uniform system of 
free public schools, which shall be maintained at 
least nine months in every year, and wherein equal 
opportunities shall be provided for all students.” 
N.C. Const. Art. 9, § 2.

South Carolina “The General Assembly shall provide for the 
maintenance and support of a system of full public 
schools open to all children in the State and shall 
establish, organize and support such other public 
institutions of learning as may be desirable.” S.C. 
Const. Art. 11, § 3.

Virginia “The General Assembly shall provide for a system 
of free public [schools]. . . and shall seek to ensure 
that an educational program of high quality is 
established and continually maintained.” Va.
Const. Art. VIII, Sec. I.

Language Assigning Power Over Schools:

Washington “The administration of the public school system 
shall be entrusted to such state and local officials, 
hoards and committees as the state Constitution 
and the laws of the state shall provide.” Wash. Rev. 
Code 28A.02.020 (1974) (emphasis added).



3a

Arizona

Colorado

Delaware

Illinois

Kansas

Maryland

Michigan

“The general conduct and supervision of the public 
school system shall be vested in a State Board of 
Education, a State Superintendent of Public 
Instruction, county school superintendents, and 
such governing boards for the state institutions as 
may be provided by law.’’ Ariz. Const. Art. XI, 
Sec. 2.

“The general supervision of the public schools of 
the state shall be vested in a board of education 
whose powers and duties shall be as now or 
hereafter prescribed by law.. . Colo. Const. Art. 
IX, Sec. I.

“The general administration and supervision of the 
free public schools and ot the educational interests 
of the State shall be vested in a State Board of 
Education.. . .” Del. Code. Ann. tit. 14 § 101 
(1978).

“The |State| Board, except as limited by law, may 
establish goals, determine policies, provide tor 
planning and evaluating education programs and 
recommend financing.. . .” Ill- Const. Art. X, 
Sec, 2., Para. a.

“The legislature shall provide for a state board of 
education which shall have general supervision ol 
public schools, educational institutions and all the 
educational interests of the state.. . .” Kans. 
Const. Art. 6, § 2, para. a.

The Department of Education has authority over 
the “general care and supervision of public 
elementary and secondary education.’’ Md. Ann. 
Code. $ 2-106 (Cum. Supp. 1981).

“Leadership and general supervision over all public 
education . . .  is vested in a state board of 
education.” Mich. Const. Art. 8, § 3, para. I.



4a

Minnesota 

New Jersey 

North Carolina

South Carolina 

Virginia

(Jrant

Washington

Arizona

Colorado

The State Board of Education “shall exercise 
general supervision over public schools.. . 
Minn. Gen. Stat. § 121.11(7) (Cum. Supp. 1981).

“The general supervision and control of public 
education . . . shall be vested in the state 
boards.. . .” N.J. Stat. Ann. § 18A: 4-10 (1978).

“The State Board of Education shall supervise and 
administer the free public school system and the 
educational funds provided for its support.. . ." 
N.C. Const. Art. 9, § 5.

No comparable provision.

“The general supervision of the school system shall 
be vested in a Board of Education.. . ."Va. Const. 
Art. VIII, Sec. 4.

Of Power To State Board Of Education

The state board is given the power to, among other 
things, determine the curriculum , establish 
requirements for teacher certification, and promote 
the interests of the common schools. Wash. Rev. 
Code 28A.04.121 (1981).

The state board is created by Ariz. Const. Art. XI, 
Sec. 3. It is given the power to define the 
curriculum, exercise general supervision over 
schools and graduation requirements, devise 
uniform evaluations, and set teacher certification 
requirements, among other things. Ariz. Gen. Stat. 
§ 15-502 (Cum. Supp. 1981).

The state board must exercise general supervisory 
powers, plan education budget, set certification 
requirements for teachers, and appraise the quality 
of the public school system, among other things. 
Colo. Gen. Stat. § 22-2-107. 2-109, 7-103 (Cum. 
Supp. 1981).



5a

Delaware

Illinois

Kansas

Maryland

Michigan

Minnesota

New Jersey

The state board of education shall determine the 
educational policy of the state. Del. Code Ann., tit. 
14 § 121 (1978). In addition, the board has the 
power to adopt rules and regulations governing 
teacher certification, minimum course study, and 
textbook selection, among other things. Id. § 122 
(1978 & Cum. Supp. 1981).

“The |State| Board, except as limited by law, may 
establish goals, determine policies, provide for 
planning and evaluating education programs and 
recommend financing.. . .” III. Const. Art. X, 
Sec. 2, Para. a.

Among other powers, the state board is given the 
authority to set the course of study, accredit schools 
and certify teachers. Kan. Stat. Ann. § 72-7513 
(1980).

The State Board of Education has, among other 
things, the power to determine educational policy, 
set guidelines for instruction, and determine 
professional needs. Md. Code Ann. § 2-205 (Cum. 
Supp. 1981).

The state board shall supervise and advise local 
school d istric ts on textbook selection and 
curriculum development. Mich. Stat. Ann. § 1158 
(Cum. supp. 1981).

“The board shall establish rules relating to 
examinations, reports,. . . courses of study . . .in 
connection with | public | schools applying for 
special state aid.” Minn. Gen. Stat. § 121.11(7) 
(Cum. Supp. 1981).

The state board shall formulate plans, make rules to 
implement policy, and have incidental power 
necessary to fulfill its duty. N.J.  Stat. Ann. 
§ 18A:4-10-4-16 (Cum. Supp. 1981).



6a

North Carolina The state hoard is created by N.C. Const. Art. 9, 
§ 4. The board is given the power to approve the 
course of study, adopt textbooks, set salaries, and 
appropriate the financial resources of the state, 
among other things. N.C. Gen. Stat. § 115C-12 
(Cum. Supp. 1981).

South Carolina The state board education is created by S.C. Const. 
Art. 11 § 1. The board is given the powers to set the 
course of study, select texts, adopt minimum 
standards of performance, and to adopt rules and 
policies for the governance of the public schools. 
S.C. Code § 59-5-60 (1978).

Virginia The school board shall set standards of quality, 
approve textbooks, and set educational policy. Va. 
Code Ann. § 22.1-8 (1978).

Grant Of Power To State Superintendent

Washington The office of superintendent of public instruction is 
charged with power to supervise all matters 
pertaining to the public school ot the state. Wash. 
Rev. Code 28A.03.030 (1981).

Arizona The office is created by Ariz. Const. Art. XI, Sec. 
4. The state superintendent of Public Instruction 
has the power to generally supervise all public 
schools and to direct the work of all board 
employees, along with numerous other more 
specific duties. Ariz. Gen. Stat. § 5-121-22 (Cum. 
Supp. 1981).

Colorado A commissioner of education is created by Colo. 
Const. Art. IX, Sec. 1. Para. 2. The commissioner 
is the chief state school officer and is given broad 
authority to implement education policy. Colo. 
Gen. stat. § 22-2-112 (Cum. Supp. 1981).



7a

Delaware

Illinois

Kansas

Maryland

Michigan

Minnesota

New Jersey

North Carolina

“The Board shall prescribe the duties of the 
Superintendent of Public Instruction and shall 
invest him with such powers as it deems proper.
. . Del. Code Ann. tit. 14 § 121 (1978).

“The State Board of Education shall appoint a chief 
state educational officer.” III. Const. Art. X, Sec. 
2, Para 6.

“The State Commissioner of education is created 
by Kan. Const. Art 6, § 4. The state board of 
education is given the authority to set the duties of 
the commissioner.” Kan. Stat. Ann. § 72-7601 
(Cum. Supp. 1980).

The State Superintendent has the power to 
implement educational policies, certify teachers, 
and approve building plans. Md. Code Ann. 
§ 2-303 (Cum. Supp. 1981).

“The state board of education shall appoint a 
superintendent of public instruction. . . He shall 
be the chairman of the board . . . and shall be 
responsible for the execution of its policies.” Mich. 
Const. Art. 8, § 3, H 2.

“The State Commissioner has the power to 
administer all laws and rules promulgated by the 
state board. Minn. Gen. Stat. § 121.09 (Cum. 
Supp. 1981).
Among other things, the state commissioner may 
prescribe minimum courses of study, subject to 
board approval. N .J. Stat. Ann. § 18A;4-25 
(1978). .
The Superintendent of Public Instruction has the 
duty to administer the instructional policies that are 
established by the State Board of Education. N.C. 
Gen. Stat. § 115c-21 (Cum. Supp. 1981).



8a

South Carolina The State Superintendent of Education shall be the 
chief administrator of the public schools. S.C. 
Const. Art. 11, § 2. The Superintendent is charged 
with administering the policies adopted by the state 
department of education. S.C. Code § 59-3-30 
(1978).

Virginia The Superintendent of Public Instruction shall have 
such powers as are prescribed by law. Va. Const. 
Art. VIII, Sec. 6.

(irant Of Power To Local Boards Of Education

Washington RCW 28A.58 and 28A.59 define the specific 
power of local boards. The power includes the right 
to prescribe a course of study consistent with that 
planned by the state board. Wash. Rev. Code 
28A.59.180(5) (1981).

Arizona The local boards has the power to enforce the 
course of study selected by the state board, choose 
textbooks, make rules for student discipline, and 
maintain school property. A tiz. Gen. Stat. 
§ 15-442-43 (Cum. Supp. 1981).

Colorado Local school boards have “control of instruction” in 
the public school of their district. Colo. Const. Art. 
IX, Sec. 15. They have the statutory power to 
define the educational program to be offered, along 
with numerous specific powers. Colo. Gen. Stat. 
§ 22-32-109-110 (Cum. Supp. 1981).

Delaware The local school boards may select texts, set 
educational policy and adopt courses of study, in 
accordance with the rules and regulations 
promulgated by the State board of education. Del. 
Code Ann. tit. 14 § 1049 (1978).

Illinois The local boards have broad power to decide upon 
course of study, choose texts, and set testing 
standards, among other things. III. Rev. Stat. 
§ 10-20-1-30, 10-21.1-.6 (Cum. Supp. 1981).



9a

Kansas

Maryland

Michigan

Minnesota

New Jersey

North Carolina

“ Local pub lic  schoo ls  under the general 
supervision of the state board of education shall be 
maintained, developed, and operated by locally 
elected boards.” Kan. Const. Art. 6, § 5. The 
board in each district has the power to set the course 
of study, adopt teaching standards, and select texts, 
subject to the approval of the state board. Kan. 
State. Ann. $ 72-8205 (1980).

“Educational matters that affect the counties shall 
be under the control of a county board of education.
. . .” Md. Code Ann. § 4-101 (Cum. Supp. 1981). 
Each county board must “carry out the . . . policies 
of the State board.” Id. § 4-107.

Mich. Stat. Ann. §§ 380.1201-1347 (Cum. Supp. 
1981) provide numerous specific directives to the 
local boards including the right to establish 
attendance zones within each d istric t. Id. 
§ 320.1283.

“The care, management and control ol a common 
district is vested in a board of three members to be 
known as the school board.” Minn. Gen. Stat. 
§ 123.12 (1978).

“The schools of each school district shall be 
conducted by . . . a board of education. . . .’ N.J. 
Stat. Ann. § 18A: 10-1 (1978). The local boards 
must enforce the rules ol the state board, and may 
make rules not inconsistent with those of the state 
board. Id. $ 19A: I I I .

“All powers and duties conferred and imposed by 
law respecting public schools, which are not 
expressly conferred and imposed upon some other 
official, are conferred and imposed upon local 
boards of education. Said boards of education shall 
have general control and supervision of all matters 
pertaining to the public schools in their respective



10a

South Carolina

Virginia

administrative units and they shall enforce the 
school law in their respective units.” N.C. Gen. 
Stat. § 115C-36 (Cum. Supp. 1981). In addition, 
sp ec if ic  g ran ts  o f pow er re la tin g  to the 
administration of local schools are given. Id. 
§ 115C-47.

The board of trustees of each school district has the 
power to set standards for scholastic achievement, 
control local education interests, and transfer 
pupils if necessary to promote the best interests of 
education. S.C. Code § 59-19-90 (1978 & Cum. 
Suppl. 1981).

“The supervision of schools in each school division 
shall be vested in a school board. . . .” Va. Const. 
Art. V lll,Sec.7;V a. Code Ann. § 22.1-28(1978). 
The local boards may set curriculum and determine 
schedules provided the action is not inconsistent 
with a rule of the state board. Id. § 22.1-79.



tla

CERTIFICATION OF SERVICE

I, G w e n d o l y n  H.  G r e g o r y ,  he r eby  cer t i f y  that  on
______________ , 19_____, l served the foregoing amicus curiae
brief of the National School Boards Association in Support of 
Appellees by first class mail, postage prepaid, upon the following:

Kennbth O. E ikenberry 
Attorney General, State of Washington 
Temple of Justice 
Olympia, Washington 98504

Malachy R. M urphy

Deputy Attorney General, State of Washington 
Temple of Justice 
Olympia, Washington 98504

T homas F. C arr

Senior Assistant Attorney General, State of Washington 
Temple of Justice 
Olympia, Washington 98504

T imothy R. M alone

Assistant Attorney General, State of Washington 
Temple of Justice 
Olympia, Washington 98504

Attorneys for Appellants

M ichael W. Hogf.
General Counsel 
Seattle School District No. 1 
815 Fourth Avenue North 
Seattle, Washington 98109

Foster, Pepper & R iviera 
C amden M. Hall, P.S.
G. R ichard H ill 
1111 Third Avenue Building 
Seattle, Washington, 98101



12a

Attorneys for Appelles

Rex Lee
Solicitor General
Wm. Bradford Reynolds

Assistant Attorney General

/s/ Gwendolyn H. Gregory 
Gwendolyn H. Gregory 
Deputy Legal Counsel 
National School Boards Association