Washington State v. Seattle School District No. 1 Brief of Appellees

    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 APPELLEES

815 Fourth Avenue North MICHAEL W. HOGE*
Seattle, Washington 98109 General Counsel
(206) 587-4272 Seattle School District No. 1

1111 Third Avenue Building CAMDEN M. HALL, P.S.* 
Seattle, Washington 98101 G. RICHARD HILL
(206) 447-4400

1900 Washington Building 
Seattle, Washington 98101 
(206) 682-8770

Foster, Pepper & Riviera 
Special Counsel for all 

School District Plaintiffs

DAVID J. BURMAN 
Perkins, Coie, Stone, 

Olsen & Williams 
Special Counsel for Seattle 

School District No. 1

♦Counsel of Record



1

QUESTIONS PRESENTED

1. Does a state statute—Initiative 350—requiring 
assignment of students to the nearest or next-nearest school 
embody a suspect racial classification when it contains 
exceptions for all common forms of student assignment 
except racial desegregation, specifically prohibits all means 
of desegregation other than transfers at students’ option, 
and concededly was enacted to terminate a school district’s 
mandatory desegregation program?

2. Does substantial evidence support the finding by the 
District Court, after nine days of trial that created over 2000 
pages of transcript and over 250 exhibits, that discriminatory 
purpose was a factor in the adoption of Initiative 350?

3- Does a state’s prohibition of local school districts’ 
assignment of students to non-neighborhood schools for 
desegregation, except where ordered by a court, interfere 
with satisfaction of the affirmative federal duty to 
desegregate?

4. Does protection of the constitutional rights of school 
children by school districts, school board members, and 
private citizens constitute a special circumstance rendering 
an award of attorney’s fees unjust?



TABLE OF CONTENTS

Jurisdiction......................................................................  1
(

Statement of the Case.............................................................1

A. Introduction................................................   1
B. Historical Background .............................   2
C. The Seattle Plan ....................................................4
D. Origin and Passage of Initiative 350............       7
E. The Initiative 350 Lawsuit.........................         10
F. The District Court’s Decision........................... .10
G. The Court of Appeals’ D ecision.........................12

Summary of Argument...................................................   14

Argum ent................................................................................16

A. Initiative 350 Embodies a Racial 
Classification Disadvantaging
M inorities...............................................................16

1. Hunter and Lee ....................................... 16
2. Initiative 350’s Race-Consciousness . . 18
3. Overt v. Covert Classifications..............21
4. Necessity of Further Proof of Purpose 23
5. Conclusion..................................................24

B. Discriminatory Purpose Was a Factor In
Intitiative 350’s Adoption ...................  25

1. Segregative Im p a ct.................................25
2. History and Context of the Initiative’s

A doption ................................ . . . . . . .  27
3. Lack of Relationship Between Means

and Permissible E n d s .............................30
4. Subjective M otivation............................ 32
5. Conclusion...................   34

11



Ill

C. Initiative 350 Deters Satisfaction of
the Affirmative Duty to Remedy Past 
Segregation............................................................ 34

1. The Affirmative Constitutional Duty .35
2. Necessity of “ Busing” ............................ 36
3. The “ Saving” Construction of

Initiative 350 ........................................... 38
4. Initiative 350 Is Facially Overbroad . 41
5. Initiative 350 Is Preempted By

Federal Legislation .................................42
6. Conclusion................................................. 44

D. The Court of Appeals Correctly Found 
the Successful School District Plaintiffs 
Entitled to Their Costs and
Attorney's Fees .................................................... 44

1. Statutory Bases for Award of
Attorney’s F e e s .......................................45

2. An Award of Fees Serves the
Congressional Purposes.......................... 46

3. No Special Circumstances Exist Here . 47
4. An Award Is Due Other Plaintiffs . . .  49

j
Conclusion ..................................  50



TABLE OF AUTHORITIES

Cases

Ambach v. Norwick, 441 U.S. 68 (1979)......................... 27

Anderson v. Martin, 375 U.S. 399 (1964)....................... 19

Arlington Heights v. Metropolitan Housing 
Development Corp., 429 U.S. 252 
(1977)....................14,24,25,28,30,32,33,34

Armstrong v. Board o f School Directors, 616 F.2d
305 (7th Cir. 1980)................................................   .37

Baggett v. Bullitt, 377 U.S. 360 (1964)............. .41

Board o f Education v. Harris, 444 U.S. 130
(1979).............................................................   .43,44

Brandenburger v, Thompson, 474 F.2d 885
(9th Cir. 1974) ........................................   .49

Brown v. Board o f Education (I), 347 U.S. 483
(1954) ....................................................... ............ 22,26,35

Brown v. Board o f Education (II), 349 U.S. 294
(1955) .............................................................................. 36

Brown v. Califano, 627 F.2d 1221 (D.C. Cir. 1980) . . .  .34

Buchanan v. Evans, 423 U.S. 963, aff'g
mem. 393 F. Supp. 428 (D. Del. 1975).................21,22

Carey v. Piphus, 435 U.S. 247 (1978).......................   .46,48

Castaneda v. Partida, 430 U.S. 482 (1977) . . . . . . .  . 20,22

Citizens Against Mandatory Bussing v.
Palmason, 80 Wash. 2d 445,
495 P.2d 657 (1972) ......................................  . . .  .3,29

iv



V

Columbus Board o f Education v. Penick, 443
U S. 449 (1979)............................................... 4,26,35,37

Comstock v. Group o f Institutional Investors, 335
U.S. 211 (1948).............................................................. 36

Cort v. Ash, 422 U.S. 66 (1975)........................................ 29

Crawford v. Board o f Education, No. 81-38...................37

Dandridge v. Williams, 397 U.S. 471 (1970)......................42

Dawson v. Pastrick, 600 F.2d 70 
(7th Cir. 1979), cert, denied, 450
U.S. 919 (1981)........................................................46-47

Dayton Board o f Education (I), 433 U.S. 409 (1977). . .35

Dayton Board o f Education v. Brinkman (II),
443 U.S. 526(1979)............................................. 4,35,37

DeFunis v. Odegaard, 82 Wash. 2d 11,
507 P.2d 1169 (1973), vacated as moot,
416 U.S. 312 (1974)..................................................24,25

Dennis v. Chang, 611 F.2d 1302 (9th Cir. 1980). . . .47,48

Department o f Revenue v. Hoppe,
82 Wash. 2d 549, 512 P.2d 1094 (1973) .................21

Donaldson v. O'Connor, 454 F. Supp. 311 (N.D.
Fla. 1 9 7 8 ).......................................................................47

Fleming v. Nestor, 363 U.S. 603 (1960 ).......................... 33

Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810)................32

Fullilove v. Klutznick, 448 U.S. 448 (1980 )....................43

Gooding v. Wilson, 405 U.S. 518 (1972).......................... 41



Goss v. Board o f Education, 373 U.S. 683 (1963) 19

Graver Tank & Mfg. Co. v. Linde Air Products Co., 
336 U.S. 271 (1949)............................................... 2

Green v. County School Board, 391 U.S. 430 (1968) . . .36

Guinn v. United States, 238 U.S. 347 (1915) ...........22,23

Hall v. Cole, 412 U.S. 1 (1973).................................... .. . .47

Hines v. Davidowitz, 312 U.S. 52 (1941 )....................... 44

Howard v. Illinois Central R.R., 207 U.S. 463 (1908) . .39

Hunter v. Erickson, 393 U.S. 385
(1969)....................................11,16,17,18,19,21,22,23,24

Hutto v. Finney, 437 U.S. 678 (1978)................... .. .48

Incarcerated Men o f Allen County Jail v. Fair,
507 F.2d 281 (6th Cir. 1974)................... ...................47

James v. Valtierra, 402 U.S. 137 (1971)......................... 21

Jenkins v. Anderson, 447 U.S. 231 (1980) ..................... 29

Kasper v. Edmonds, 69 Wash. 2d 799,
420 P.2d 346 (1966).................................... ................ 39

Keyes v. School District No. 1, 413 U.S. 189 (1973) . . .  .4

Korematsu v. United States, 323 U.S. 214 (1944)........ 22

Kramer v. Union Free School District No. 15, 395
U.S. 621 (1969)..............................................................28

Lane v. Wilson, 307 U.S. 268 (1939)............................ .22

Lau v. Nichols, 414 U.S. 563 (1974 ).............................. 42



Vll

Loving v. Virginia, 388 U.S. 1 (1967)......................... 19,24

Lund v. Affleck, 587 F.2d 75 (1st Cir. 1978 ).................47

Lynch v. Overholser, 369 U.S. 705 (1962)....................... 39

Maher v. Gagne, 448 U.S. 122 (1980)..............................49
»

McDaniel v. Barresi, 402 U.S. 39 (1971).................4,18,42

McLaughlin v. Florida, 379 U.S. 184 (1964).............19,22

Mid-Hudson Legal Services, Inc. v. G & U, Inc.,
578 F.2d 34 (2d Cir. 1978) ..........................................47

Milliken v. Bradley (I), 418 U.S. 717 (1974)....................36

Morgan v. Kerrigan, 530 F.2d 401 
(1st Cir.), cert, denied, 426 U.S.
935(1976)....................... 35

NAACP v. Medical Center, Inc., 657 F.2d 1322
(3d Cir. 1981 )................................................................ 43

Newman v. Piggie Park Enterprises, Inc., 390 U.S.
400 (1968).......................................................................46

New York City Transit Authority v. Beazer, 440
U.S. 568 (1979)..............................................................42

New York Gaslight Club, Inc. v. Carey, 447 U.S.
54 (1980).........................................................................46

North Carolina State Board o f Education
v. Swann, 312 F. Supp. 503 (W.D.N.C. 1970), 
aff'd,402 U.S. 43 (1971)....... 17,36,37,39,41,42

Northcross v. Board o f Education,
412 U.S. 427 (1973)......................................................46



via

Nyquist v. Lee, 402 U.S. 935 (1971), 
aff'g mem. 318 F. Supp. 710
(W.D.N.Y. 1970).................. 11,16,17,18,19,21,23,24,29

Ohio ex rel. Eaton u. Price, 360 U.S. 246 (1959).......... 17

Orr v. Orr, 440 U.S. 268 (1979)........................................ 31

Pace v. Alabama, 106 U.S. 583 (1883) ............................19

Personnel Administrator o f Massachusetts v. Feeney,
442 U.S. 256 (1979)............................... .22,23,24,25,32

Railway Express Agency, Inc. v. New York, 336
U.S. 106 (1949)...............................................................31

Regalado v. Johnson, 79 F.R.D. 447 (N.D. 111. 1978) . .47

Regents o f the University o f California v. Bakke,
438 U.S. 265 (1978)....................................... 23,25,42-43

Rodriguez v. Taylor, 569 F.2d 1231 (3d Cir. 1977),
cert, denied, 436 U.S. 913 (1978)................. ........... 47

San Antonio Independent School District v.
Rodriguez, 411 U.S. 1 (1973 )..................................... 28

Schad v. Borough o f Mount Ephraim,
452 U.S. 61 (1981)..........     41

Seattle School District No. 1 v. State, 90 Wash.
2d 476, 585 P.2d 71 (1978) ................................... 27,29

Seattle School District No. 1 v. Washington,
No. C81-276T (W.D. Wash. Dec. 18, 1981).............38

Smith v. Texas, 311 U.S. 128 (1940).................................33

State ex rel. Citizens Against Mandatory Bussing v. 
Brooks, 80 Wash. 2d 121, 492 P.2d 536 
(1972)...................................................................   28



IX

State ex rel. Day v. Martin, 64 Wash. 2d 511, 392
P.2d 435 (1964).......... .................................................. 40

State ex rel. Public Disclosure Commission v. Rains,
87 Wash. 2d 626, 555 P.2d 1368 (1976) .................21

Strauder v. West Virginia, 100 U.S. 303 (1880).............22

Swann v. Charlotte-Mecklenburg Board o f
Education, 402 U.S. 1 (1971)....................... 4,18,27,36

Sweatt v. Painter, 339 U.S. 629 (1950)........................... 27

Tillman v. Wheaton-Haven Recreation Ass'n, 517
F.2d 1141 (4th Cir. 1 9 7 5 )...........................................47

United States v. Board o f Education, 88
F.R.D. 679 (N.D. 111. 1980).........................................37

United States v. Carolene Products Co.,
304 U.S. 144 (1938)......................................................28

United States v. O'Brien, 391 U.S. 367 (1968)...............32

United States v. Scotland Neck City Board o f
Education, 407 U.S. 484 (1972)................................ 35

Vance v. Bradley, 440 U.S. 93 (1979)............................. 24

Vlandis v. Kline, 412 U.S. 441 (1973).............................. 27

Washington v. Davis, 426 U.S. 229
(1976)..........................................................21,22,23,24,25

Washington v. Washington State Commercial 
Passenger Fishing Vessel Association,
443 U.S. 658 (1979)........................................... 39,43-44

Wright v. Council of Emporia, 407 U.S. 451 (1972) . . .35



X

Constitutional Provisions

U.S. Const, amend. X I V .................................10,14,16,45,46
i

U.S. Const, amend. X V ........................................................ 23

Statutes

Akron City Charter § 137.................................................... 16

N.Y. Educ. Law 3201(1) (McKinney 1970)...................... 17

Pub. L. No. 95-561 .............................................................. 45

20 U.S.C. § 1617 ................................................................... 45

20 U.S.C. §§ 1713-14 (1976).................................. ............ 37

20 U.S.C. § 1716 (1976)........................................................ 37

20 U.S.C. § 3193(b) (Supp. I l l  1979).....................    43

20 U.S.C. § 3192(b)(2) (Supp. I l l  1979)...............................44

20 U.S.C. § 3205 (Supp. I l l  1979) ...............................45,46

28 U.S.C. § 1254(2) (1976).......................................   1

42 U.S.C. § 1983 (1976)....................................  45,46

42 U.S.C. § 1988 (1976)............................................ .45,46,49

42 U.S.C. § 2000d (1976),........................................   .3,42

42 U.S.C. § 2000d-6 (1976)..................................................43

42 U.S.C. § 2000h-2 (1976)..................................................10

42 U.S.C. § 2000h-4 (1976)..................................    .43



XI

Rules and Regulations

34 C.F.R. § 100.3(b)(l)(iii) (1981) ......................................43

34 C.F.R. § 100.3(b)(2) (1981)............................................ 43

Other Authority

Abernathy, Title VI and the Constitution:
A  Regulatory Model for Defining 
“Discrimination," 70 Geo. L.J. 1 (1981 )...............43

G. Allport, The Nature o f Prejudice (1954) ...................33

Bell, The Referendum: Democracy ’s Barrier 
to Racial Equality, 54 Wash. L.
Rev. 1 (1978)................................................................. 28

Brest, The Supreme Court, 1975 Term—Foreward:
In Defense o f the Antidiscrimination
Principle, 90 Harv. L. Rev. 1 (1976)....................... 33

Conf. Rep. No. 798, 92d Cong. 2d Sess. (1972 ).............26

Ely, Legislative And Administrative Motivation 
in Constitutional Law, 79 Yale L.J.
1205 (1970)............................................ '. .................... 32

J. Ely, Democracy and Distrust (1980)........................... 24
/

H. R. Rep. No. 94-1558 (1976)................................... 46,49

12 Moore's Federal Practice § 435.01[2] (1981 )............ 45

Proposed Bills on Court Ordered School
Busing—Hearings on S. 528, S. 1147, S. 1647,
& S. 1743 before the Subcomm. on Separation o f  
Powers o f the Senate Comm, on the Judiciary,
97th Cong., 1st Sess. (1981)......................................13



Xll

S. Rep. No. 94-1011....................................................46,47,48

A. Siqueland, Without a Court Order—The
Desegregation o f Seattle's Schools (1981)...............13

U.S. Commission on Civil Rights, Public Knowledge
and Busing Opposition (1973) ...................................31

V



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 APPELLEES

JURISDICTION

Appellants improperly invoke this Court's jurisdiction 
under 28 U.S.C. § 1254(2) (1976), as to Appellants’ Question 
VIII. See note 44 infra.

STATEMENT OF THE CASE

A. Introduction
This statement is drawn from the District Court's findings 

of fact, 473 F. Supp. 996, J.S. A-l to A-36 (W.D. Wash. 1979), 
which the Court of Appeals left wholly undisturbed and in 
many particulars expressly affirmed, 633 F.2d 1338, J.S. B-l



2

to B-29 (9th Cir. 1980), and from the evidence consistent with 
those findings. Appellants state as facts many of their 
contentions rejected by the courts below.1 Because they have 
failed to raise any “ very obvious and exceptional showing 
of error,” however, this Court should not depart from its 
steadfast refusal to review such factual findings. Graver 
Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S. 271 
(1949).

B. Historical Background
The Seattle, Tacoma, and Pasco public school districts 

have determined that racial desegregation is an important 
educational goal. The overall education of students in a school 
system suffers when schools are segregated, and the adverse 
effects fall most heavily upon minority students. The greater 
the racial imbalance, the greater the impairment. 473 F. 
Supp. at 1001 and 1011, J.S. at A-7 and A-25 (Findings of 
Fact Nos. 3.1 and 3.1(a) (hereinafter, e.g., “ FF 3.1” )). Since 
the early 1960’s, these public school districts have taken 
steps to reduce school segregation. Id. at 1002-03 and 
1005-07, J.S. at A -8 to A-10 and A-14 to A-18 (FF 3.8, 4.3, 
5.1, 6.1, and 6.12). Tacoma and Pasco have assigned students 
to other than their “ neighborhood” schools for many years. 
Id. at 1002-04, J.S. at A-9 to A-13 (FF 4.3, 4.4, 5.1, and 5.14).

Because the antibusing statute in question arose mainly 
in opposition to effective desegregation in Seattle, events 
there must be recited in some detail. Segregated housing 
patterns in Seattle result in segregated schools under even 
a noninvidious neighborhood school assignment policy. Id. 
at 1007, J.S. at A-18 (FF 6.14). During the 1960’s and 1970’s, 
the minority residential areas expanded, and racial imbalance 
in the schools increased. Id. at 1006, J.S. at A-17 (FF 6.8); 
J.A. 75-83 and 144-50; Def. Ex. A-97.

1 Contrary to its present contentions, the United States informed the 
courts below that the District Court’s findings accurately reflected the 
facts.



3

In 1971, after eight years of limited success with voluntary 
desegregation transfers, the locally elected Seattle School 
Board adopted a mandatory middle school desegregation 
program as a back-up to continued voluntary efforts. 
Litigation delayed implementation of that program until fall 
1972.1 2 The program also prompted a nearly successful effort 
to recall four board members. Id. at 1002 and 1006, J.S. at 
A-8 and A-16 (FF 3.10 and 6.3).

Until the 1978-79 school year, Seattle employed no 
additional mandatory desegregation strategies, and school 
segregation increased, except in the middle schools. During 
1976-77, the District planned and publicized a voluntary 
“ magnet”  school desegregation program, which was carried 
out in 1977-78. It successfully attracted some new student 
movement, but much of that movement was not 
desegregative. Id. at 1006, J.S. at A-16 to A-17 (FF 6.5, 6.6,
and 6.8); J.A. 111.

/

In early 1977 several organizations, including intervenor- 
plaintiffs American Civil Liberties Union, National 
Association for the Advancement of Colored People, and 
Church Council of Greater Seattle threatened legal action 
to force Seattle to desegregate. In April 1977 the NAACP 
filed a complaint with the Office for Civil Rights (OCR) of 
the Department of Health, Education and Welfare, charging 
the District with violating Title VI, 42 U.S.C. § 2000d (1976), 
by maintaining purposefully segregated schools. 473 F. Supp. 
at 1005-06, J.S. at A-15 (FF 6.1). OCR scheduled an 
investigation.

In May 1977 the Mayor of Seattle and the presidents of 
the local Chamber of Commerce, Municipal League, and 
Urban League urged the Seattle School Board to adopt a 
definition of racial isolation and a commitment to its 
elimination by a time certain. J.A. 139-40. This broad support 
for locally controlled desegregation was consistent with the
1 Citizens Against Mandatory Bussing v. Palmason, 80 Wash. 2d 445,
495 P.2d 657 (1972).



4

Board’s belief as to its educational, moral, and legal duty,3 
and was an important factor in the Board’s June 1977 
adoption of a resolution defining segregation {i.e., “ racial 
imbalance’ ’4) and directing its elimination by autumn 1979 
through use of educationally sound strategies. J.A. 49-50. 
The Board further directed a six-month public planning 
process. 473 F. Supp. at 1006, J.S. at A-17 (FF 6.9); J.A. 
136-38. In July 1977 the Board established equity of 
movement (i.e., roughly equal numbers of minority and 
majority students mandatorily assigned to non-neighborhood 
schools) as an essential feature of acceptable plans. J.A. 127.

C. The Seattle Plan
On December 14, 1977, after a lengthy public process, 

including analysis of five model plans5 by a citizens’
3 The Board was well aware that there was some likelihood a court could 
find unlawful segregation in Seattle. J.A. 12-13,16-17, 74, & 127. Although 
unable and unwilling to examine the motives of its predecessors, the Board 
was not unreasonable in its perceptions. Faculty assignment practices, 
for instance, had been similar to those which numerous court decisions 
have deemed to further schools’ racial identifiability. PI. Ex. 69. Other 
historical factors, such as drawing of attendance boundaries and student 
transfer policies, in some instances bore at least surface similarity to the 
facts reported in Columbus Board o f  Education v. Penick, 443 U.S. 449 
(1979); Dayton Board o f Education v. Brinkman (II), 443 U.S. 526 (1979); 
Keyes v. School District No. 1, 413 U.S. 189 (1973); and similar decisions.

4 The Seattle Plan’s goal to reduce racial imbalance is in no sense a “ racial 
balance plan” directed at achieving the goal of “complete racial balance.” 
Brief for United States at 5. No particular range or ratio of minority to 
majority students is required. The percentage o f minority students in any 
school may range from zero, i.e., no minority students, to 20% above the 
districtwide minority percentage, provided that no single minority group 
is more than 50% of a school’s student body. J.A . 50. This is a less 
demanding desegregation goal than has been directed by numerous court 
orders reviewed by this Court. E.g., Swann v. Charlotte-Mecklenburg 
Board of Education, 402 U.S. 1, 6-10 (1971). See also McDaniel v. Barresi, 
402 U.S. 39, 41 (1971).

The Washington State Board of Education and Washington State 
Human Rights Commission have adopted the same definition of “ racial 
isolation” and have stated it to be public policy to eliminate such “ racial 
isolation” by whatever means necessary. 473 F. Supp. at 1002, J.S. at 
A-8 (FF 3.11); J.A. 65-69.

5 Each of the plans relied heavily on mandatory student assignments, 
either as an initial strategy or as a backup to voluntary strategies. As  
Board member Cheryl Bleakney testified, the public, while preferring 
voluntary plans if possible (as aid the Board), repeatedly expressed the 
desire for stability and predictability in student assignment patterns. J.A. 
126-31.



5

committee and over 30 public hearings, the Board by a vote 
of six to one adopted the Seattle Plan for school 
desegregation. 473 F. Supp. at 1007, J.S. at A-17; J.A. 
141-44. The Plan, which contains elements of several of the 
model plans, desegregates elementary schools by “ pairing” 
and “ triading” minority with majority elementary school 
attendance areas. Thus, the Plan assigns individual students 
not on the basis of their race (as in some mandatory and most 
voluntary plans), but together with all other students in then- 
attendance area. Secondary schools are desegregated by 
restructured feeder patterns from elementary, to middle, to 
high schools.

Students thus remain, if they choose, with other students 
from their immediate neighborhoods in established patterns 
from grade school through high school. Any inconvenience 
is equitably distributed, with roughly equal numbers of 
minority and majority students mandatorily reassigned. 
Students subject to mandatory assignments spend roughly 
half of their school years near their homes.6

Although the mandatory aspects of the Plan were 
necessitated by the failure of 15 years of mostly voluntary 
efforts, the Plan retains as much opportunity for voluntary 
transfers as in a “ voluntary-first” program. 473 F. Supp. at 
1007, J.S. at A-17 to A-18 (FF 6.11). Because “ voluntary- 
first” strategies have inherently unpredictable results at the 
individual student and individual school levels, primary 
reliance upon them would have required constant 
readjustments and last-minute resort to virtually random 
mandatory assignments made purely on the basis of 
individual students’ race, as the Board learned from its 
experience with the middle schools program. J.A. 88. It is 
wasteful and self-defeating to make mandatory “ backup” 
assignments of students to programs which have been
6 The length of bus rides under the Seattle Plan was kept to a minimum. 
The average "mandatory” bus ride in Seattle is 35 minutes, with 45 
minutes maximum. The average “ voluntary” bus ride is 40 minutes, with 
60 minutes maximum. Roughly half of all students in Seattle take buses 
to school. Somewhat over half of those students do so as part of the Seattle 
Plan, with fewer than half of those moving mandatorily.



6
uniquely designed to attract'students with special interests 
or talents. The “ mandatory-first” plan based on pairs and 
triads permits predictability and stability over time, and has 
important educational and practical advantages, without 
sacrificing voluntary opportunities. J.A. 130.

Voluntary programs and transportation are considerably 
more expensive than mandatory. With the mandatory 
assignment patterns of the Seattle Plan, a bus can fill up 
with children at a few central stops in a neighborhood and 
can take them all directly to the same destination; voluntary 
student movement is widely scattered and transportation 
correspondingly far less efficient. J.A. 72. Magnet programs 
rely on expensive staff, programs, supplies, equipment, 
publicity, and annual recruiting efforts to attract students. 
State statutes limit the funds that may be raised by special 
local property tax levies to spend on such programs. Further, 
even assuming whites would volunteer in substantially 
increased numbers, Seattle’s minority-area schools lack 
capacity to absorb enough white students to desegregate, 
especially since even greater numbers of minority volunteers 
“ out” could not be expected while programs were being 
enhanced to attract whites. J.A. 120-31.

As the undisputed testimony of black Seattle School Board 
member Dorothy Hollingsworth and black community 
leaders established, J.A. 93-96, 191-93, and 196-98; Tr. 
218-25, the Board’s adoption of the Seattle Plan was the 
realization, through the local political process, of important 
minority educational and political goals. Because a voluntary- 
only plan under Initiative 350 would destroy the Seattle 
Plan’s equity of movement, minority volunteers would 
significantly decline from previous levels in reaction to the 
white community’s repudiation of desegregation. 473 F. 
Supp. at 1007, J.S. at A-18 (FF 6.16); J.A. 94-95,191-93, and 
196-98; Tr. 218-25 and 445-55.7
7 This would cripple voluntary desegregation strategies, which rely for 
their limited success upon a disproportionately high level of minority 
student transfers. 473 F. Supp. at 1006 & 1010, J.S. A-17 & A-24 to A-25 
(FF 6.7, 8.5, 9.1, 10.1, & 11.1).



7

D. Origin and Passage of Initiative 350
A group of citizens unsuccessfully sought to enjoin 

adoption of the Seattle Plan, organized Citizens for Voluntary 
Integration Committee (CiVIC), and then sought to enjoin 
implementation of the Plan. 473 F. Supp. at 1007, J.S. at 
A-18 to A-19 (FF 7.1-7.3).

CiVIC also drafted Initiative Measure No. 350 in direct 
and sole reaction to the Seattle Plan’s “ forced busing.” 8 Id. 
at 1001 and 1008, J.S. at A-6 and A-19 (FF 1.28, 7.4, and 
7.9); see 633 F.2d at 1343 and n.2, J.S. at B-4. In composing 
the antibusing initiative, the drafters wrote to all 
Washington school districts for advice on providing 
maximum flexibility for “ normal” operations, and then 
satisfied all expressed concerns. 473 F. Supp. at 1008, J.S. 
at A-19 (FF 7.8); Def. Ex. A-102; J.A. 102-04.9 The drafters 
specifically prohibited all the mandatory desegregation 
strategies of the Seattle Plan and all known mandatory

8 The president of CiVIC testified as follows:
Q Isn’t it then an accurate statement to say that Initiative 350 

was designed specifically to stop the ... mandatory aspect of 
the Seattle Plan or any other mandatory plan such as Seattle 
or other school districts might adopt?

A  That’s extremely accurate.
J.A. 168.

9 As to transportation of students for all reasons except desegregation, 
the legislative co-chair of CiVIC testified: “ (W]e tried to cover those in 
our exceptions.” J.A. 189. This CiVIC leader’s testimony is instructive, 
especially since it was taken in one of the earlier lawsuits, soon after the 
initiative was developed, and long before this litigation alerted the 
initiative’s proponents to the danger of acknowledging that the initiative's 
only target was mandatory desegregation: “ It was our goal to make this 
initiative as flexible as possible not to interfere with the development of 
any program in any school district except where they might use 
mandatory busing.” J.A. 188-89.



8

alternatives. 473 F. Supp. at 1010, J.A. at A-24 (FF 8.3-8.6).10 
The State agrees that “ opponents of the plan . . . drafted, 
filed, solicited signatures for and campaigned for passage 
of Initiative Measure No. 350___ ” Brief of Appellants at 4.

The terms “ busing,” “ forced busing,” and “ mandatory 
busing” in connection with Initiative 350 were synonomous 
with busing for desegregation. 473 F. Supp. at 1009, J.S. at 
A-21 to A-22 (FF 7.22); Tr. 77-78, 265-66, 349-51, 662, and 
715; PI. Ex. 2, Tr. 22. There is a conscious or subconscious 
racial factor in at least some opposition to “ forced busing.” 11 
CiVIC’s campaign to secure the signatures necessary to place 
the initiative on the ballot assured that it would affect only 
“ forced busing” and not “ traditional” student assignment 
policies of local districts. 473 F. Supp. at 1008, J.S. at A-21 
(FF 7.18). That campaign made clear that the purpose of 
Initiative 350 was to stop Seattle’s mandatory desegregation 
efforts. Id. at 1007-09, J.S. at A-19 to A-23 (FF 7.5, 7.14, 
7.19, and 7.23); PI. Exs. 38-44 and 51-67.12
10 The president of CiVIC testified as follows:

Q Isn’t it true that [§ 3 of Initiative 350] was devised specifically 
in response to the Seattle Plan in an effort to enumerate those 
characteristics of the Seattle Plan which could not be utilized 
as an indirect method of getting around the prohibitions of 
Initiative 350?

A  I ’d have to answer yes.
J.A. 168-69. The CiVIC co-chair, see note 9, supra, testified that the 
prohibitions of § 3 were enumerated because

school districts who are committed to using mandatory bussing to 
achieve racial integration might very well use another reason for—at 
least state another reason, you see, for implementing that plan. They 
might for instance, say that the pairing of schools offered a better 
education when indeed their goal was really integration if the 
initiative was directed strictly to a racial integration of schools.

If the initiative had been directed to its correcting racial 
imbalance, if the initiative had said they may not use bussing beyond 
the nearest or next nearest school to the purpose of correcting racial 
imbalance, then a school district whose—whose goal might be the 
integration of the schools could still adopt a pairing plan and say, 
well, this plan isn’t really for integration, it is just to achieve better 
education. I consider that a not very remote possibility.

J.A. 188-89.

11 J.A. 91-93, 100-04, & 154-67.

12 For example, advertisements in major newspapers around the state 
began: “ Initiative 350 was drafted in response to a desegregation plan 
enacted by the Seattle school board.” PI. Ex. 38, p. 49, Tr. 486.



9

In July 1978 the election campaign began. CiVIC’s 
spokespersons continued to maintain that the initiative 
would affect only “ forced busing” for school desegregation, 
and repeatedly stated that 99 percent of the State’s 300 
school districts would not be affected by the initiative. 473 
F. Supp. at 1008-09, J.S. at A-21 (FF 7.18-7.20). The three 
the initiative would affect are plaintiffs in this action. Id. 
(FF 7.19).

A voters’ pamphlet was mailed to all of the State’s 
registered voters. The arguments for Initiative 350 by CiVIC 
focused on “ forced busing.” PI. Ex. 2, Tr. 22. The arguments 
against the initiative warned that the initiative would return 
the Seattle; Tacoma, and Pasco public schools to segregation, 
and made clear that the initiative arose in reaction to 
Seattle’s desegregation program. 473 F. Supp. at 1008, J.S. 
at A-20 to A-21 (FF 7.13 and 7.14). Both positions recognized 
that the initiative had one direct and immediate objective: 
halting desegregative non-neighborhood assignments in 
Seattle.

The electorate passed Initiative 350 at the November 7, 
1978, general election. In Seattle’s predominantly minority 
37th Legislative District, the initiative failed. Id. at 1009, 
J.S. at A-22 (FF 7.24 and 7.25).13

Initiative 350 permits local school districts to assign 
students to other than their nearest or next-nearest schools 
for all common reasons except desegregation. Id. at 1010 and 
1013, J.S. at A-24 to A-25 and A-29 to A-30 (FF 8.3 and 8.8 
and opinion).14 It permits a local community to obtain a 
desegregated educational experience for its students only if 
a court orders the school district to do so. Id. at 1011, J.S. 
at A-25 (FF 8.9 and 8.10). The initiative would end the
13 The initiative also failed in the predominantly white 43rd District, which 
is generally that area of Seattle joined since 1972 with the 37th District 
in the mandatory middle school desegregation program.

“  Defendant State Superintendent of Public Instruction testified he was 
unaware of any “ forced busing,” other than for desegregation, not 
encompassed within the exceptions of the initiative. J.A. 96-97.



10

desegregation programs in Pasco, Tacoma, and Seattle and 
prevent Seattle from eliminating racial imbalance. Id. at 
1010, J.S. at A-24 to A-25 (FF 8.5, 9.1, 10.1, 11.1, and 11.2).
E. The Initiative 350 Lawsuit

Prior to Initiative 350’s effective date, the Seattle, Pasco, 
and Tacoma School Districts, board members from those 
districts, and several individuals as guardians of their 
student children (the “ school district plaintiffs” ) brought suit 
charging that Initiative 350 discriminated on the basis of 
race in violation of state law, the Fourteenth Amendment, 
and Title VI of the Civil Rights Act of 1964, and that the 
State and the United States had caused purposeful 
segregation that was reflected in Seattle’s schools. R. 1.

A number of parties intervened in the action. The local 
intervenor-plaintiffs contended additionally that Seattle was 
guilty of purposeful segregation and that if, as a result of 
Initiative 350 or otherwise, the District did not voluntarily 
desegregate, the court should order it to do so. The claims 
that the State and the United States had caused unlawful 
school segregation and that Seattle had not adhered to a 
noninvidious school assignment policy in the past were 
bifurcated for trial, if necessary, as Phase II of the litigation. 
The United States intervened as a plaintiff under 42 U.S.C. 
§ 2000h-2 (1976). CiVIC and several individuals intervened 
as defendants.

F. The District Court’s Decision
After nine days of trial, producing over 2000 pages of 

transcript and over 250 exhibits, the District Court 
determined that it was

compelled to find Initiative 350 unconstitutional upon 
several grounds: (1) it forbids mandatory student 
assignments for racial reasons but permits such student 
assignments for purposes unrelated to race, (2) a racially 
discriminatory purpose was one of the factors whicn 
caused Initiative 350 to be adopted, and (3) the initiative 
is overly inclusive in that it permits only court-ordered 
busing of students for racial purposes even though a



11

school board may be under a constitutional duty to do 
so even in the absence of a court order.

473 F. Supp. at 1012, J.S. at A-27.

As to the first ground, the District Court relied primarily 
upon Hunter v. Erickson, 393 U.S. 385 (1969), and Nyquist 
v. Lee, 402 U.S. 935 (1971), aff'g mem. 318 F. Supp. 710 
(W.D.N.Y. 1970) (three-judge court). The only difference from 
those cases was purely superficial. There, the laws expressly 
prohibited or burdened efforts to remedy or protect against 
discrimination; Initiative 350 prohibited for all purposes the 
use of a technique necessary to remedy segregation, but then 
created exceptions for every significant purpose other than 
desegregation. "This is as effective a racial classification as 
is a statute which expressly forbids the assignment of 
students for racial balancing purposes.” 473 F. Supp. at 1013, 
J.S. at A-30.

Under its second rationale, the District Court found that 
it could not precisely ascertain the subjective intent of each 
person who voted in support of Initiative 350, and that a 
judgment could not be based upon what might be “ ‘safely 
assume[d]’ as to the subjective intent of the voters.” Id. at 
1014, J.S. at A-31. Consequently, the court relied primarily 
upon circumstantial indicia of purpose. The court found that 
Initiative 350 would result in a substantial increase in public 
school segregation, that such an increase would damage the 
education of minority children, and that this impact was both 
a “ certainty” and a contemplated result of the initiative. Id. 
at 1015, J.S. at A-33 to A-34. Moreover, the background and 
context of the initiative made it clear that one significant 
purpose of Initiative 350 was terminating effective 
desegregation. The initiative forbids "every major effective 
technique” of desegregation. Further, it was a “ marked 
departure from the. . .  norm” for "an administrative decision 
of a subordinate local unit of government” to be "overridden 
in a statewide initiative by voters, a great number of whom 
were entirely unaffected by” the decision. Id. at 1016, J.S. 
at A-35. That departure was even more telling in light of the



12

traditional local autonomy of school boards with respect to 
the assignment of students. Id.

Third, the District Court held that Initiative 350 
improperly applies on its face to a school district under an 
affirmative constitutional duty to desegregate, leaving as 
its only recourse “ litigation in order to have a court declare 
the course of action that it should take.” Id. at 1016, J.S. 
at A-36.

The school district plaintiffs incurred substantial 
attorney’s fees and costs in the litigation—funds which would 
otherwise have been available for educational purposes. 
Nonetheless, the District Court refused to award attorney’s 
fees to the school district plaintiffs on the grounds that the 
public had already paid the fees. J.S. at C-2.

G. The Court of Appeals’ Decision
Despite successful implementation of the Seattle Plan, the 

State sought review in the Court of Appeals for the Ninth 
Circuit. The State did not specifically dispute any of the 
underlying facts found by the District Court. With one judge 
dissenting, the Court of Appeals affirmed the conclusion that 
Initiative 350 is unconstitutional, but reversed the District 
Court’s denial of the school district plaintiffs’ motion for 
attorney’s fees.

As to the constitutional issues, the Court of Appeals found 
it necessary to discuss only the District Court’s conclusion 
that Initiative 350 embodies an invidious racial classification, 
agreeing with the District Court that Initiative 350 was 
materially indistinguishable from the statute overturned by 
this Court in Lee. 633 F.2d at 1342-43, J.S. at B-4 to B-5.

In short, “ Initiative 350 embodies a constitutionally- 
suspect classification based on racial criteria because it 
legislatively differentiates student assignment for purposes 
of achieving racial balance from student assignment for any 
other significant reason.” Id. at 1343-44, J.S. at B-5. If it



13

were to make a difference that the classification was covertly 
rather than overtly embodied in the initiative, “ [lawmakers 
who seek to establish impermissible racial classifications will 
in the future be able to achieve, by artfully worded statutes 
like Initiative 350, constitutionally forbidden goals.” Id. at 
1344 and n.4, J.S. at B-6 to B-7.

As to attorney’s fees, the Court of Appeals held that 
nothing in the plain language or legislative history of the 
relevant statutes foreclosed or limited awards to publicly 
funded plaintiffs. Id. at 1348, J.S. at B-14 to B-15. On the 
contrary, such awards would further the congressional 
purposes of encouraging vindication of constitutional rights 
and stimulating voluntary compliance with the law. Id.

The Court of Appeals denied rehearing and rehearing en 
banc, J.S. at E-l, and this Court subsequently noted probable 
jurisdiction.

Now in its fourth year, the Seattle Plan has not only 
successfully desegregated the public schools, but has done 
so with significant community support and without violence 
or racial tension.15 As the Court of Appeals noted, “ the 
‘Seattle Plan’ in particular has been hailed as a model for 
other large cities.” 633 F.2d at 1341, J.S. at B-l.

15 The Seattle Plan achieved its goal of elimination of racial imbalance 
in 1979 and has maintained desegregated schools since. Desegregated 
education has become institutionalized in Seattle. After extensive citizen 
involvement, the School Board in February 1981 adopted a three-year 
plan to maintain stable desegregated schools, again citing its “ legal and 
educational duty.” For a current account of desegregation in Seattle, see 
Proposed Bills on Court Ordered School Busing-Hearings on S. 528, S. 
1147, S. 1647, & S. 1743 before the Subcomm. on Separation o f Powers 
of the Senate Comm, on the Judiciary, 97th Cong., 1st Sess. (1981) (October 
16,1981, statement of Suzanne Hittman, Seattle School Board President). 
For an historical account of development of the Seattle Plan, see A. 
Siqueland, Without a Court Order—The Desegregation of Seattle's Schools 
(1981).



14

SUMMARY OF ARGUMENT

The District Court correctly recognized three ways in 
which Initiative 350 violates the Fourteenth Amendment.16 
If this Court finds support for any one of the bases of 
unconstitutionality, as did the Court of Appeals, the 
judgment must be affirmed.

First, Initiative 350 directly embodies an invidious racial 
classification admittedly unsupported by any compelling 
state interest. Designed to treat student assignments for 
desegregation differently from all other student assignment 
matters, it operates to maintain and increase segregation, 
to inhibit equal educational opportunity, and to deny

(cont.)

Contrary to the “ conventional wisdom” that mandatory busing for 
desegregation causes substantial “ white flight” and is therefore 
counterproductive, white student attrition in Seattle has been roughly 
the same in the four years of the Seattle Plan’s operation as it was in 
the three years preceding the Plan. The white loss from predominantly 
minority and transition areas, which is “ certain” with a neighborhood 
assignment policy, has been reduced. See 473 F. Supp. at 1010-11, J.S. 
at A-25 (FF 11.3). Test scores in Seattle have slightly improved; significant 
improvements are expected in the longer term, consistent with the national 
research. Moreover, even apart from test scores, a diverse student body 
better prepares students for life in a pluralistic society. Thus, the 
experience in Seattle is consistent with that nationwide, as shown by the 
State’s own Ex. A-133, Tr. 1346 (Harris Poll) at pp. ix, x, and 40:

While there are whites who are still emotionally disturbed at 
the notion of busing for racial balance, the almost automatic 
claim that “ busing is a disaster” simply does not hold up in 
the face of the facts from this study. . . . The irony of busing 
to achieve racial balance is that rarely has there been a case 
where so many have been opposed to an idea, which appears 
not to work badly at all when put into practice. . . . Among 
whites whose children have been bused for desegregation, 78%  
say the experience is satisfactory or highly satisfactory.

“  Whether Initiative 350 violates the State Constitution was expressly 
left unaddressed by the District Court. 473 F. Supp. at 1016, J.S. at A-36. 
If the District Court and Court of Appeals were incorrect as to federal 
law, the case should be remanded for application of state law and, if 
necessary, for Phase II of the litigation. See Arlington Heights v. 
Metropolitan Housing Development Corp., 429 U.S. 252, 271 (1977).



15

minority interests. School operations in Washington have 
traditionally been local matters, and only after adoption of 
the Seattle Plan for desegregation did the voters of the State 
as a whole .feel the necessity to dictate student assignment 
policy in one narrow area to three local districts. In so doing, 
Initiative 350 restructures the political process in a non­
neutral manner by foreclosing to minorities the traditional 
mechanism of influencing one’s local school board as a means 
of attaining educational goals.

Second, the District Court’s finding that Initiative 350 
purposefully discriminates against racial minorities is 
compelled by the evidence. Prior to the election, it was well 
known to the electorate that the initiative would end the 
Seattle Plan and dramatically increase school segregation, 
and that voluntary desegregation efforts had failed and 
would fail again. The context and purpose of Initiative 350 
was opposition to the Seattle Plan and effective school 
desegregation. Discriminatory purpose was also reflected in 
the procedural departure from the norm represented by the 
first use of the statewide initiative process to deal with a 
traditionally local school district matter in one area, racial 
desegregation, and—by careful design—only in that area. 
Further, the absence of a close relationship between the 
antibusing initiative and any permissible purpose, as well 
as evidence of subjective intent, both reflected discriminatory 
purpose.

Third, Initiative 350 unconstitutionally interferes with the 
affirmative duty of school districts to remedy past unlawful 
segregation. It prohibits local school districts from assigning 
students beyond their neighborhood schools, except pursuant 
to court order, without regard to whether those local school 
districts have or perceive a constitutional duty to 
desegregate. Because the statute on its face is susceptible 
of application to constitutionally required conduct, it is 
invalid.

Finally, the Court of Appeals correctly held that the 
successful school district plaintiffs are entitled to their costs



16

and attorney’s fees. Federal law requires such an award 
unless special circumstances render it unjust. No such 
circumstances exist here. Indeed, a denial of costs and fees 
would mean that school board members must choose between 
surrendering the constitutional rights of their students, 
which they are sworn to uphold, or irreparably diverting 
necessary funds from education.

ARGUMENT

A. Initiative 350 Embodies a Racial Classification 
Disadvantaging Minorities

The Court of Appeals and the District Court properly relied 
upon Hunter v. Erickson, 393 U.S. 385 (1969), and Nyquist 
v. Lee, 402 U.S. 935 (1971), aff'g mem. 318 F. Supp. 710 
(W.D.N.Y. 1970), in concluding that Initiative 350 reflects 
an invidious racial classification unjustified by any 
compelling state interest.

1. Hunter and Lee
In Hunter this Court held that § 137 of the Akron City 

Charter violated the Fourteenth Amendment. The charter 
provision, which was added by a referendum, prevented the 
city council from implementing, without the approval of a 
majority of voters, any ordinance dealing with racial, 
religious, or ancestral discrimination in housing. The 
provision thus created “ an explicitly racial classification 
treating racial housing matters differently from other racial 
and housing matters.” Id. at 389. The Court pierced the 
superficial neutrality of the provision: “ although the law on 
its face treats Negro and white, Jew and Gentile in an 
identical manner, the reality is that the law’s impact falls 
on the minority.” Id. at 391. Applying the “ suspect 
classification” test to the provision, the Court found that 
none of Akron’s justifications amounted to a compelling state 
interest.

Justice Harlan’s concurrence focused on § 137’s 
restructuring of the political process in a racially



17

discriminatory manner: "Here, we have a provision that has 
the clear purpose of making it more difficult for certain racial 
and religious minorities to achieve legislation that is in their 
interest." Id. at 395. Such a provision is “ discriminatory on 
its face," and must fall “ unless it can be supported by state 
interests of the most weighty and substantial kind." Id. at 
393.

In Lee a three-judge court held Hunter dispositive as to 
a New York statute prohibiting student assignments and 
certain other actions “ for the purpose of achieving racial 
equality in attendance.” 318 F. Supp. at 712. Like Initiative 
350, the New York antibusing statute had the effect of 
differentiating between racial matters and other problems 
in the same area. Hunter, according to the court in Lee, 
stands for the principle that “ the state creates an ‘explicit 
racial classification’ whenever it differentiates between the 
treatment of problems involving racial matters and that 
afforded other problems in the same area." Id at 718. Because 
the lower court’s sole stated rationale and any possible 
alternative theories in Lee apply equally to Initiative 350, 
this Court’s summary affirmance is controlling here. Ohio 
ex rel. Eaton v. Price, 360 U.S. 246, 247 (1959).17

17 The United States contends that Lee may be explained on two grounds 
that make it inapplicable here. First, it is said that the statute in Lee 
“ clearly prohibited ‘all efforts to achieve racial balance’ (318 F. Supp. at
715)___ r' Brief at 25. Second, the statute in Lee prohibited race-conscious
assignments “ pursuant to a court finding of unconstitutional 
segregation,” and thus this Court’s affirmance was governed by the 
decision two weeks earlier in North Carolina State Board o f Education 
v. Swann, 402 U.S. 43 (1971). Brief at 25-26 & n.27. Neither distinction 
is satisfactory.

The statute in Lee, like Initiative 350, dealt only with desegregative 
student assignments and related techniques. 318 F. Supp. at 712. If 
anything, the prohibitions of Initiative 350 are broader in that § 3 prohibits 
desegregative school pairing, merging, or clustering: desegregative grade 
restructuring; and desegregative feeder schools. Neither the New York 
statute nor Initiative 350 prohibited voluntary desegregation efforts. See 
N.Y. Educ. Law 3201(1) (McKinney 1970). Thus, the Lee court’s comment 
that the statute “ clearly applies to all efforts to achieve racial balance” 
must have reflected only the court’s earlier conclusion that voluntary plans



18

2. Initiative 350's Race-Consciousness
As the Court of Appeals and the District Court recognized, 

Initiative 350 is like the charter provision in Hunter and the 
statute in Lee. It is race-conscious in its history and race- 
related in its purpose and effect. The initiative draws a 
distinction between those groups who seek the law’s 
protection against racial discrimination in student 
assignments and those who seek to regulate student 
assignments in the pursuit of other ends. Compare Hunter, 
393 U.S. at 390.

Initiative 350’s drafting and campaign history plainly 
demonstrates the intention to limit student assignments for 
desegregation, but not to limit any other assignments, as 
is suggested by the very name of the proponents—Citizens 
for Voluntary Integration Committee. In the course of 
drafting, the exceptions to the “ nearest or next-nearest’ ’ rule 
and the desegregation tools specifically prohibited were both 
expanded. Although more artfully crafted than the statute 
in Lee, the initiative was offered to, and accepted by, the 
electorate as the most recent step in opposition to “ forced 
busing,” i.e., effective desegregation. Compare 318 F. Supp. 
at 716-17.

The law's purpose and effect plainly fall on the minority, 
by dismantling local school desegregation programs, 
preventing future adoption of such programs, injuring 
educational achievement of minority students, and requiring
(cont.)

“ have not had a significant impact on the problems of racial segregation 
in the Buffalo public schools; indeed it would appear that racial isolation 
is actually increasing.” 318 F. Supp. at 715. That is precisely the situation 
in this case, and the Justice Department’s attempted distinction merely 
reemphasizes the applicability of Lee.

The same is true with respect to the second “ distinction.” There was 
no “ court finding of unconstitutional segregation” in Lee. The statute 
was struck down m its entirety, not just as applied to districts under court 
orders to desegregate. Indeed, the district court in Lee specifically upheld 
the personal standing of parents of children in schools suffering only from 
“ de facto segregation,” which there is “ no constitutional duty to undo.” 
Id. at 713-14. Thus, if Lee was directly controlled by the Swann cases, 
it was by McDaniel v. Barresi, 402 U.S. 39 (1971), discussed infra at 41-42, 
which upset state court interference with race-conscious student 
assignments by a local district not acting under a “ court finding of 
unconstitutional segregation.”



19

expensive and time-consuming litigation for the vindication 
of constitutional rights. In Hunter, this Court noted that only 
minorities need the protection of a fair housing law to halt 
segregative housing choices by whites. 393 U.S. at 391. Here, 
as in Lee, only minorities need the protection of a 
desegregation plan to halt segregative school choices by 
whites.

As in Hunter, the initiative specially burdens, indeed 
forecloses, the attainment of important minority educational 
and social goals through the local political process. In Hunter 
local voters could still enact fair housing ordinances, but 
Initiative 350 flatly prohibits local non-neighborhood 
assignments for desegregation, absent a court order. The 
requirement that any amendments to Initiative 350 be 
adopted at the state, rather than the local, level effectively 
removes from Seattle's minority community any realistic 
hope of amendment. See note 28 infra.

The State asserts that there is no unique burden on 
minorities for three reasons: First, the Seattle Plan reassigns 
some members of all races, and terminating the Plan 
necessarily affects them all. Second, many minority parents 
dislike non-neighborhood assignments. Brief of Appellants 
at 19-20. Third, the initiative might have some application 
to assignments unrelated to desegregation. Id. at 10.

The first reason is merely the suggestion—repeatedly 
rejected by this Court—that separate schools, separate 
seating, antim iscegenation statutes, repeal of 
antidiscrimination laws, and the like affect both blacks and 
whites.18 The correct approach is shown by Goss v. Board 
o f Education, 373 U.S. 683 (1963), where the Court
"  E.g., Loving v. Virginia, 388 U.S. 1, 8 (1967) (“ The mere fact of equal 
application does not mean that our analysis of these statutes should follow 
tne approach we have taken in cases involving no racial discrimi­
nation -----” ); McLaughlin v. Florida, 379 U.S. 184,188 (1964) ("all whites
and Negroes who engage in the forbidden conduct are covered by the 
section and each member of the interracial couple is subject to the same 
penalty” ); Anderson v. Martin, 375 U.S. 399, 403 (1964) (fact that 
candidates of all races must designate race on ballot does not remove 
requirement’s “ purely racial character and purpose” ). The State is 
apparently unaware that McLaughlin overruled Pace v. Alabama, 106 U.S. 
583 (1883).



20

unanimously held that “ [t]he alleged equality—which we view 
as only superficial—of enabling each race to transfer from 
a desegregated to a segregated school does not” remove the 
action’s “ purely racial character and purpose.” Id. at 688.

The second reason is simply irrelevant. Everyone, including 
the Seattle School Board, would prefer to accomplish school 
desegregation in some other manner. Yet, the record in this 
case establishes that mandatory non-neighborhood 
assignments were essential to effective desegregation, and 
that minority parents had invoked the local political process 
and accepted some inconveniences to obtain desegregated 
education. Even if minority leaders had opposed the Seattle 
Plan, that would not justify a denial of the interests of other 
minority children. See Castaneda v. Partida, 430 U.S. 482 
(1977); id. at 503 and n.2 (Marshall, J., concurring).

Third, in the hope of escaping the conclusion that the 
initiative is a racial classification, the State strains to apply 
it to nonracial student assignments. These situations, which 
either do not occur in the real world or else fall within the 
broad exceptions to the initiative,19 are nothing more than 
after-the-fact speculation as to possible, unintended side

19 For instance, there is no evidence in the record that school districts 
assign students to other than their nearest or next-nearest school to 
“ balance class size.” The Spokane newspaper article (Ex. A-130) cited by 
the State, Brief at 10 n.6, was successfully objected to as hearsay, and 
was admitted only for the limited purpose of showing what was before 
some voters prior to the Initiative 350 vote. Tr. 937. The witness through 
whom the State wished to make its point testified that the only non­
neighborhood busing in Spokane is due to “ overcrowding,” Tr. 934, which 
of course is among the initiative’s exceptions.

The suggestion that districts would transport students away from 
neighborhood schools simply to secure transportation reimbursement from 
the State is likewise unfounded. In recent years the State has reimbursed 
a substantial portion of, but far from all, local transportation expenses. 
Because local districts must contribute their own resources to any 
transportation, it is always a losing proposition financially.



21

effects of a measure designed to affect only racial matters. 
Initiative 350 must be construed as repeatedly interpreted 
by its sponsors.20 CiVIC consistently denied that the 
initiative would affect anything but desegregation busing. 
The State’s argument, that a statute which clearly and 
admittedly was intended to deal with race relations can be 
saved by additional but unanticipated impacts, stands 
Washington v. Davis, 426 U.S. 229 (1976), on its head.21

3. Overt v. Covert Classifications 
The only difference between the statute here and that in 

Lee is one of form and not substance. Initiative 350 was more 
carefully drafted—and purposefully so. Thus, unless clever 
language excuses the same objective as in Lee and Hunter, 
Initiative 350 must be subjected to strict scrutiny.

That Hunter and Lee apply to artful as well as obvious 
racial classifications is clear from Buchanan v. Evans, 423 
U.S. 963, a ffg  mem. 393 F. Supp. 428 (D. Del. 1975). In that 
case, a statute directed officials to consider consolidating the 
state’s school districts, with two exceptions, into a smaller 
number of districts. The district court found the two 
exceptions—Wilmington and districts with over 12,000 
pupils—were intended to preclude desegregative 
consolidations of other districts with the largely minority 
Wilmington district. Although consolidating Wilmington 
with other districts could still be accomplished by 
referendum, although one other district was inadvertently 
excluded by the 12,000-student provision, although there was

20 The basic rules of construction applicable to enactments of the 
legislature also apply to direct legislation by the people. State ex rel. Public 
Disclosure Commission v. Rains, 87 Wash. 2d 626, 633, 555 P.2d 1368, 
1373 (1976). Determining the collective intent of the people is the objective, 
and material in the official voters’ pamphlet is relevant. Department of 
Revenue v. Hoppe, 82 Wash. 2d 549, 552, 512 P.2d 1094, 1096 (1973).

n Nor is the argument supported by James v. Valtierra, 402 U.S. 137 
(1971). The referendum at issue in James applied not to integrated housing 
but to low-income housing, and the Court found no evidence that it was 
in fact an inadvertently broad statute aimed only at race relations in 
housing. Id. at 141. Here the critical fact of race-consciousness is openly 
admitted.



22

no finding of an interdistrict constitutional violation, and 
although the statute was “ racially neutral on its face,” the 
district court found that the statute reflected “ a suspect 
racial classification.” 393 F. Supp. at 442. This Court 
affirmed summarily, with three Justices dissenting on other 
grounds.

Concern with transparently race-conscious statutes did not 
end with Evans:

This rule applies as well to a classification that is 
ostensibly neutral but is an obvious pretext for racial 
discrimination. Yick Wo v. Hopkins, 118 U.S. 356; 
Guinn v. United States, 238 U.S. 347; cf. Lane v. Wilson, 
307 U.S. 268; Gomillion v. Lightfoot, 364 U.S. 339.

Personnel Administrator o f Massachusetts v. Feeney, 442 
U.S. 256, 272 (1979). Such a racial classification is 
presumptively invalid, regardless of any other proof of 
motivation and regardless whether the classification is 
“ covert or overt.” Id. at 274. Feeney is thus consistent with 
the Court’s duty to strike down “ sophisticated as well as 
simple-minded modes of discrimination.” Lane v. Wilson, 307 
U.S. 268, 275 (1939).22

The courts below correctly concluded that Initiative 350 
creates a racial classification. It is not the rare classification, 
such as those in Korematsu v. United States, 323 U.S. 214 
(1944), or Strauder v. West Virginia, 100 U.S. 303 (1880), that 
expressly burdens only a racial minority. Nor is it a 
classification, such as those in Brown v. Board o f Education, 
347 U.S. 483 (1954); McLaughlin v. Florida, 379 U.S. 184 
(1964); and Hunter, that mentions race, and race relations, 
but does not expressly burden one race more than another.

22 The “ covert or overt” language in Feeney is also consistent with the 
jury discrimination cases. In those cases, no classification is explicit on 
the face of the law. Substantial underrepresentation in practice, however, 
is sufficient to shift the burden to the state to rebut the suggestion of 
discriminatory purpose. Castaneda v. Partida, 430 U.S. 482, 494-95 (1977); 
accord, Washington v. Davis, 426 U.S. at 241. This case is an even clearer 
one for shifting the burden since it is admitted that the law in fact deals 
with racial matters.



23

Instead, it is a classification, such as those in Gomillion, Yick 
Wo, and Guinn,23 all mentioned approvingly in Feeney, that 
only transparently avoids the express mention of race and 
race relations, but that undeniably deals with both.

4. Necessity o f Further Proof of Purpose
Finally, the State asserts that its appeal rests on the 

proposition that after Washington v. Davis "courts are no 
longer free to presume from the face of a given statute—as 
was done in Hunter and Lee—that an illicit segregative 
purpose motivated its passage.” Brief of Appellants at 23 
(emphasis in original). The assertion that Davis overturned 
Hunter and Lee is simply wrong. Race-conscious statutes— 
such as those in Hunter, Lee , and this case—by their very 
concern with racial matters create a risk that bias infected 
the majority’s consideration of minority interests, at least 
where they do not benefit the minority. Compare Regents 
o f the University o f California v. Bakke, 438 U.S. 265, 357 
(1978) (opinion of Brennan, White, Marshall, & Blackmun,
J.J.).24 Only the absence of any alternative means of 
satisfying a compelling state interest is normally sufficient 
to dispel that suspicion of antipathy.

Accordingly, Hunter was cited approvingly in Davis, which 
went on to state “ [tjhat is not to say that the necessary 
discriminatory racial purpose must be express or appear on
the face of the statute___ ” 426 U.S. at 241. The Court has
since made it clear that, because the statutes in Hunter and 
the present case burden minorities and involve concern with 
racial matters, they are not the kind of neutral laws with

23 In Guinn v. United States, for example, the Court struck down an 
Oklahoma constitutional amendment that imposed a literacy test for 
voting but grandfathered all those who had voted in 1866 and their lineal 
descendants. Because the 1866 election was the last major election before 
adoption of the Fifteenth Amendment, the Oklahoma scheme covertly 
reflected a racial classification. 238 U.S. at 364. Initiative 350 is equally 
clever, but equally obvious.

24 Contrary to the Bakke situation, where the governmental benefit to 
the minority is at the expense of the majority, elementary and secondary 
school desegregation deprives no one of the benefit of an education.



24

inadvertent impact authorized by Davis. As the Court stated 
in Feeney: “ Certain classifications, however, in themselves 
supply a reason to infer antipathy. Race is the paradigm. 
A racial classification, regardless of purported motivation, 
is presumptively invalid and can be upheld only upon an 
extraordinary justification.” 442 U.S. at 272.

If Davis, which involved no express or implicit race- 
consciousness and no allegation by plaintiffs of 
discriminatory purpose, and Arlington Heights, which 
involved no express race-consciousness and insufficient proof 
of implicit consideration of race, overturn Hunter and Lee, 
then this Court and others must seek out direct evidence of 
racial prejudice in every case. It has always been enough to 
invoke strict scrutiny that the majority was dealing, overtly 
or covertly, with matters that present an inherent risk of 
antipathy toward minority interests. See Vance v. Bradley, 
440 U.S. 93, 97 (1979). That risk is sufficient to shift to the 
State the burden of dispelling the inference of prejudice, 
usually by establishing “ an extraordinary justification” for 
the action. See Loving v. Virginia, 388 U.S. 1, 9-11 (1967); 
J. Ely, Democracy and Distrust 145-48 (1980). Any other rule 
would place the courts in the unnecessary and unwise 
position of protecting minority interests only by directly 
accusing other branches of government of racial prejudice.

5. Conclusion
The Court cannot fail to recognize the potential for the 

corruptive influence of prejudice in a decision whether to 
allow desegregation. No other proof of invidious purpose is 
necessary. Instead, the burden should shift to the State to 
show, for example, that the State interest was sufficiently 
compelling, and the sacrifice of desegregation sufficiently 
necessary, to outweigh the potential for corruption. That is 
a burden the State never even attempted to satisfy. Instead, 
the initiative contradicts the “ compelling” state interest in 
public school desegregation. DeFunis v. Odegaard, 82 Wash.



25

2d 11, 35, 507 P.2d 1169, 1184 (1973), vacated as moot, 416 
U.S. 312 (1974).25

B. Discriminatory Purpose Was a Factor In 
Initiative 350’s Adoption

Even if the covert but conceded race-consciousness of 
Initiative 350 were not enough to invoke strict scrutiny, the 
District Court correctly concluded, under the second prong 
of Feeney, that a discriminatory purpose was at least one 
factor in the proposal and adoption of the initiative.

In Arlington H eights v. M etropolitan Housing  
Development Corp., 429 U.S. 252 (1977), the Court reviewed 
some of the important indices of whether a governmental 
action is im perm issibly infused with purposeful 
discrimination:

(a) “ The impact of the official action—whether it ‘bears 
more heavily on one race than another,’ Washington v. 
Davis, supra, 426 U.S. at 242—may provide an 
important starting point.”
(b) “ The historical background of the decision,” 
including the “ specific sequence of events leading to the 
challenged decision” ana procedural and substantive 
departures from the norm in connection with the 
decision, is important circumstantial evidence.
(c) Finally, the “ legislative or administrative history” 
of the decision may provide direct evidence of purpose 
and of subjective intent.

Id. at 266-68. Substantial evidence, ignored by the State, 
supports the District Court’s conclusion that Initiative 350 
is purposefully segregative under Arlington Heights.

1. Segregative Impact
The dramatic increase in minority racial isolation that 

Initiative 350 would have caused was fully foreseen, not just
25 Initiative 350 makes impossible attainment of public schools’ legitimate 
educational goal of racially diverse student bodies. The institutional 
interest in diverse student bodies is not only legitimate but is one aspect 
of academic freedom protected by the First Amendment. Regents o f the 
University o f California v. Bakke, 438 U.S. 265, 311-15 (1978) (Powell, J.).



26

easily foreseeable. See Columbus Board o f Education v. 
Penick, 443 U.S. 449, 464-65 (1979). Both lower courts 
concluded that Initiative 350 was directed only at racial 
desegregation. 473 F. Supp. at 1010, J.S. at A-24 (FF 8.3); 
633 F.2d at 1343-44, J.S. at B-5 to B-6. Both courts found 
it would be impossible to desegregate Seattle’s schools 
without resort to the methods prohibited by the initiative. 
473 F. Supp. at 1010, J.S. at A-24 (FF 8.5); 633 F.2d at 1346, 
J.S. at B -ll. Moreover, the inconvenience of desegregation 
would no longer have been shared equitably. Rather, the 
limited desegregation obtainable under Initiative 350 would 
result largely from efforts of minority students. 473 F. Supp. 
at 1006-07, J.S. at A-16 to A-18 (FF 6.6, 6.7, and 6.16).

Further, the District Court below concluded that the racial 
isolation under Initiative 350 would disproportionately injure 
the education of minority students. Id. at 1001, 1011, and 
1015, J.S. at A-7, A-25, and A-33 (FF 3.1, 3.1(a)); see 633 F.2d 
at 1346-47, J.S. at B-9 to B-13.26 That same finding as to both 
purposeful and non-purposeful segregation by the district 
court in Brown v. Board o f Education was adopted by this 
Court: “ Segregation of white and colored children in public 
schools has a detrimental effect upon the colored children. 
The impact is greater when it has the sanction of 
law___ ” 347 U.S. 483, 494 (1954) (emphasis added); accord,

26 The United States now closes its eyes to Initiative 350’s effect on the 
educational benefits to minority students from desegregation, in spite 
of the District Court’s findings. Contrary to the current position of the 
United States, the District Court did not merely “ assume’̂  a detrimental 
impact on minority student education, but found such an impact as a fact 
after both sides had presented their evidence. Congress has itself reached 
the same conclusion. Conf. Rep. No. 798, 92d Cong., 2d Sess., reprinted 
in 1972 U.S. Code Cong. & Aa. News 2608, 2662-63. The United States 
cannot wave aside such fact-finding merely by referencing certain extra­
record publications, Brief at 38-39 n.39, especially when tne publications 
do not stand for the proposition cited.



27

Sweatt v. Painter, 339 U.S. 629, 634 (1950).27 Further, the 
critical importance of the minority interest in question 
emphasizes the significance of the evidence of anticipated 
impact. Cf. Vlandis v. Kline, 412 U.S. 441, 459 (1973) (White, 
J., with Marshall, J., concurring).

2. History and Context o f  the Initiative's Adoption
The historical background of Initiative 350, the sequence 

of events leading to its enactment, and the legislative and 
administrative history of the initiative all make clear that 
impeding effective desegregation was a purpose, and not just 
an unfortunate and unintended effect, of the measure. The 
initiative was conceived solely in response to Seattle’s 
desegregation program, as appellants have conceded and 
both courts below found. A comparison of the major features 
of the Seattle Plan with those actions that school officials 
may not take under § 3 of the initiative quickly confirms the 
initiative’s invidious purpose; a racially neutral neighborhood 
schools policy is unlikely to be expressed in such 
desegregation-specific language.

Nonetheless, the State suggests that the courts below 
believed that a policy of neighborhood schools is per se 
purposeful discrimination. That innuendo is unfounded. The 
Court of Appeals specifically stated that a “ neighborhood 
school policy is not constitutionally suspect." 633 F.2d at 
1345, J.S. at B-8. In this case, however, both the objective 
factors and the direct evidence indicate that at least one 
purpose of statewide opposition to “ forced busing" was the 
racially discriminatory purpose to impede school 
desegregation.

27 The State’s attempt to narrow the legitimate educational concerns of 
school districts to tne results of achievement tests, Brief at 41-42 n.9, 
lacks support. Preparing children to participate as citizens in a pluralistic 
democracy entails more than teaching them to read and count. E.g., 
Ambach v. Norwich, 441 U.S. 68, 77 (1979) (schools serve in our society 
as “ an ‘assimilative force’ by which diverse and conflicting elements in 
our society are brought together on a broad but common ground’’); Swann 
v. Charlotte-Mecklenburg Board o f Education, 402 U.S. 1, 16 (1971); 
Seattle School District No. 1 v. State, 90 Wash. 2d 476, 517-18, 585 P.2d 
71, 94-95 (1978).



28

This situation is identical to that hypothesized in Arlington 
Heights as reflecting improper purpose. The Court 
distinguished the specific sequence of events there—a 
longstanding low-density zoning designation—from “ a far 
different case,” in which the property has previously been 
zoned to accommodate low-income, multifamily housing, but 
where the zoning is upgraded to preclude erection of an 
integrated housing project. 429 U.S. at 267. Such a situation, 
without any other direct evidence of racial bias, creates a 
prima facie suspicion of purpose. Here, the longstanding 
condition was local control of assignments, and not on a strict 
neighborhood basis, until effective desegregation was 
proposed.

Further, use of the statewide initiative process by 
uninvolved voters to deal with a local school district matter 
was an unprecedented departure from the norm.28 No prior 
enacted initiative has dealt with such local school district 
matters. The argument of the State, Brief at 22, that 
Initiative 350 merely corrected the one oversight in an

28 Statewide action prohibiting local decisions benefiting minority groups 
is particularly troubling because minorities with substantial power in tne 
urban districts are relatively politically powerless in the State as a whole. 
Cf. San Antonio Independent School District v. Rodriguez, 411 U.S. 1,
28 (1973); Kramer v. Union Free School District No. 15, 395 U.S. 621, 628 
(1969); United States v. Carolene Products Co., 304 U.S. 144, 152-53 n.4 
(1938); Bell, The Referendum: Democracy's Barrier to Racial Equality, 
54 Wash. L. Rev. 1 (1978).

That is reflected in the fact that a significantly smaller percentage voted 
for the initiative in Seattle (less than 58%) than in the remainder of the 
State (over 67%). Def. Ex. A-105, p. 7, Tr. 774.

In elections for two board seats in November 1979, when virtually the 
only issue which received media attention was desegregation, pro-Seattle 
Plan candidates defeated anti-Seattle Plan candidates. In one of the races, 
the incumbent (who had voted to adopt the Seattle Plan) defeated the

Eresident of CiVIC. In the November 1981 elections, three of the seven 
oard seats were open. Again, desegregation was an issue, but in each 

case outspoken opponents of mandatory desegregation were defeated. 
That efforts to elect antidesegregation candidates and to recall pro­
desegregation board members, see State ex rel. Citizens Against 
Mandatory Bussing v. Brooks, 80 Wash. 2d 121, 492 P.2d 536 (1972), have 
been unsuccessful also reflects the ability of minorities to build political 
coalitions in Seattle.



29

otherwise perfect scheme of total state control, was not 
presented to the courts below prior to the Court of Appeals’ 
decision, Jenkins v. Anderson, 447 U.S. 231, 234 n.l (1980), 
and is unsupportable in any event.

In Washington, as in other states, local boards are created 
by the State and operate within certain broad limitations. 
In Washington, as in few other states, however, the State 
is required to fund “ basic education,” and therefore had to 
give content to that term. Seattle School District No. 1 v. 
State, 90 Wash. 2d 476, 585 P.2d 71 (1978). In practice, 
nonetheless, local boards still control the operational specifics 
of “ basic education” and independently fund and define 
“ enrichment” programs.29 The State in some areas sets 
minimum standards, but even those standards generally 
defer to local practices. That is not substantially different 
from the national pattern of local school district control, as 
CiVIC realized and the State Board of Education confirmed. 
J.A. 70 and 98.30

Moreover, in Washington, as in other states, student 
assignments have always been within the control of local 
authorities, and remained so after Initiative 350 for all 
common purposes other than desegregation. Prior to 
Initiative 350, local districts had the authority under state 
law to assign students for purposes of desegregation. Citizens 
Against Mandatory Bussing v. Palmason, 80 Wash. 2d 445, 
495 P.2d 657 (1972).

39 Currently, only 55% of Seattle School District’s funding comes from 
the State as “ basic education” support.

30 The District Court and the Court of Appeals so concluded, 473 F. Supp. 
at 1010 & 1016, J.S. at A-23 to A-24 & A-35 (FF 8.20 and opinion); 633 
F.2d at 1343 n.2 & 1344, J.S. at B-4 to B-7, and are in a far better position 
to assess local law and local practice than is this Court. Cort v. Ash, 422 
U.S. 66, 72 n.6 (1975). The similarities between the Washington education 
system and the national pattern are discussed in greater detail in the brief 
of amicus National School Boards Association.



30

3. Lack o f  Relationship Betw een Means and 
Permissible Ends

Although not discussed in Arlington Heights, improper 
purpose is also objectively reflected in the lack of a close 
relationship between Initiative 350 and any of its asserted 
noninvidious objectives. The antibusing initiative, say 
appellants, was intended to achieve “ neighborhood schools,” 
which are desirable because they encourage local involvement 
in education and reduce student transportation time, risk, 
and expense. The degree of relationship between those 
objectives and Initiative 350 is instructive.

First, increasing local control and involvement in schools 
and decreasing transportation time were far from ignored 
in the Seattle Plan. The Plan was locally formulated and 
approved, and it generally keeps neighborhoods together. 
Although there are bus rides, their length is reasonable, see 
note 6 supra, and children spend at least half their years at 
nearby schools. Thus, the intense statewide interest in 
Initiative 350 can not be explained by pointing to those 
noninvidious concerns.

Second, the initiative is not substantially better suited than 
the Seattle Plan to achieving the purposes said to underlie 
a neighborhood schools policy. Rather than furthering local 
involvement and control, Initiative 350 replaces it with a 
statewide mandate. Indeed, the State and the United States 
go to great lengths to disclaim local responsibility for schools 
in Washington.

Furthermore, Initiative 350 leaves untouched school 
closures—the most drastic removal of the neighborhood 
school possible—and all common exceptions to neighborhood 
school assignments other than desegregation. This dramatic 
underinclusiveness reflects a conclusion by the majority that 
the minority’s interest in desegregated education is 
qualitatively less important than any other common, and 
basically fiscal, reason for transporting students. 
Neighborhood schools give way to the desire to save money 
by closing schools or by avoiding removal of “ health or safety



31

hazards”  or ‘ ‘physical barriers,”  building of new 
neighborhood schools to eliminate “ overcrowding,” 
maintenance or rehabilitation of neighborhood schools to 
avoid “ unsafe conditions or lack of physical facilities,” or 
provision of “ special education, care or guidance” within the 
neighborhoods of handicapped students.

The majority did engage in a “ tradeoff” of interests as the 
United States suggests, Brief at 43, but it was a tradeoff 
that sacrificed only the minority’s interests and not the 
similarly situated interests of the majority. This Court has 
repeatedly held that the majority must impose the same 
burdens on its own interests as on those of the minority if 
the majority wishes to avoid the suspicion of improper 
purpose. E.g., Orr v. Orr, 440 U.S. 268, 280 n.10 (1979). As 
Justice Jackson indicated in Railway Express Agency, Inc. 
v. New York, 336 U.S. 106, 111 (1949), such a requirement 
has the prophylactic effect of assuring indirect consideration 
of minority interests.

Third, voluntary desegregation assignments under the 
initiative would equally undercut the neighborhood school 
purposes. The State protests the factual conclusion by the 
District Court and the Court of Appeals that Initiative 350 
would make it “ impossible” to desegregate the public 
schools. Yet, if sufficient voluntary desegregation were to 
occur under Initiative 350 (a hypothetical that flies in the 
face of experience and the evidence), just as many students 
would be bused out of their neighborhoods as in the absence 
of Initiative 350. Of course, those would be minority 
students, disproportionately forced to sacrifice the benefits 
of neighborhood schools to gain the benefits of desegregated 
schools.

Moreover, the cost and risk of transportation in a 
hypothetically effective voluntary program would be greater 
than under mandatory desegregation.31 Student camaraderie
31 Because riding a bus to school is statistically safer than walking, see 
U.S. Commission on Civil Rights, Public Knowledge and Busing 
OpP osition 17 (1973), the safety justification for opposition to busing has 
little force.



32

and parental cohesiveness and involvement would be less 
than under mandatory desegregation, where groups of 
students and parents are kept together over the years, and 
where the composition of the student body is predictable 
from year to year. Consequently, Initiative 350 achieves a 
limited measure of the purposes of a neighborhood schools 
policy only if one assumes that there would be an appreciable 
decline in actual desegregation.

In sum, Initiative 350’s weak or non-existent relationship 
to constitutionally acceptable goals must be seen to reflect 
not just the purpose of mandating that children go to 
neighborhood schools, but also the purpose of hindering 
effective desegregation efforts that equitably burden all 
races, as is confirmed by the evidence of subjective 
motivation.

4. Subjective Motivation
The State’s only real challenge to the District Court’s 

sifting and weighing of the evidence of purpose is to suggest 
that the court “ categorically refused even to consider the 
Defendants’ evidence of benign intent on the part of the 
voting public . . . .” Brief of Appellants at 31. The State’s 
insinuation is both irrelevant and misleading.

Because discriminatory purpose will seldom be nakedly 
declared, the trustworthiness of the denials of subjective 
intent submitted by the State is slight, as this Court has 
repeatedly indicated. E.g., United States v. O'Brien, 391 U.S. 
367, 383 (1968); Fletcher v. Peck , 10 U.S. (6 Cranch) 87, 
130-31 (1810). See generally Ely, Legislative And  
Administrative Motivation in Constitutional Law, 79 Yale 
L.J. 1205,1218 (1970). As the Court stated in Feeney, “ [pjroof 
of discriminatory intent must necessarily usually rely on 
objective factors, several of which were outlined in Arlington 
Heights . . . .  What a legislature or any official entity is ‘up 
to ’ may be plain from the results its actions achieve, or the



33

results they avoid.” 442 U.S. at 279 n.24.32 That is especially 
the case where the decision-maker is not just a multi- 
membered body but an electorate numbering in the hundreds 
of thousands.

Nonetheless, although the District Court properly relied 
primarily upon “ objective factors,” it explicitly denied the 
school districts’ motion in limine to exclude evidence of the 
subjective intent of the electorate. R. 429. Resultantly, the 
record is replete with such evidence.33 The District Court 
made specific findings of fact relating to subjective 
motivation, e.g., 473 F. Supp. at 1001, J.S. at A-8 (FF 3.7), 
and the court emphasized that its decision was rendered only
“ (ajfter considering all of the evidence___ ” Id. at 1012, J.S.
at A-27.

32 See also Flemming v. Nestor, 363 U.S. 603, 617 (1960) (Harlan, J.) 
(“Judicial inquiry into Congressional motive is at best a hazardous matter, 
and when that inquiry seeks to go behind objective manifestations it 
becomes a dubious affair indeed.,v); Arlington Heights, 429 U.S. at 270 
n.20 (upholding exclusion of evidence of subjective motivation).

One reason evidence of subjective intent is untrustworthy is that 
prejudice is often, if not usually, subconscious. G. Allport, The Nature 
of Prejudice 11 (1954) (“ Since they merely follow the folkways they deny 
that they are prejudiced”). Thus, stated intent might merely be a 
rationalization for subconscious unease about having one’s child attend 
a desegregated school, as expert witnesses in this case testified. See note
33 infra. This Court has recognized that it makes no difference whether 
discrimination is “ accomplished ingeniously or ingenuously . . . . ” Smith 
v. Texas, 311 U.S. 128,132 (1940). See generally Brest, The Supreme Court, 
1975 Term—Fore ward: In Defense o f the Antidiscrimination Principle, 
90 Harv. L. Rev. 1, 7-8, & 14 (1976).

33 Dr. David Armor, defendants’ expert witness, testified that many white 
parents oppose minority children being bused into a white school. J.A. 
104-05. Dr. James Morishima, an expert witness on surveys of racial 
attitudes, testified that racial bias is a factor in whites’ opposition to 
busing. J.A. 104. Dr. Christine Rossell testified following her review of 
relevant data that many of the expressed nonracial reasons for opposition 
to desegregation busing are in fact conscious or subconscious 
rationalizations of racial fears. J.A. 91-93. A CiVIC attorney acknowledged 
the existence of racial discrimination as a factor in opposition to busing. 
J.A. 103-04. Even the CiVIC legislative co-chair testified that there are 
people in Seattle who are afraid of the other race and do not want their 
children to be in school with other races. J.A. 102. Sixteen percent of all 
whites openly favor separation of the races; 27% would be disturbed at 
having a black neighbor. Def. Ex. A-133, p. vi, Tr. 1346; J.A. 154-67.



34
5. Conclusion

The State contends that Initiative 350 must prevail unless 
evidence of subjective motivation established that it would 
not have been enacted “ but for” segregative intent. Brief 
at 27. As this Court has held, however, the objective evidence 
of discriminatory purpose alone shifted the burden to the 
State to prove that the initiative would have been proposed 
and enacted even in the absence of a purpose to impede 
effective desegregation. Arlington Heights, 429 U.S. at 
270-71 n.21. That burden is necessary because, where 
discriminatory purpose might well have motivated 
legislation, judicial deference is “ no longer justified” and 
close scrutiny is essential. Id. at 265-66. In that case, which 
is this case, the presence of nondiscriminatory purposes 
among some supporters is irrelevant, unless such purposes 
constitute compelling state interests that could not be 
otherwise satisfied. Here they do not, and the courts below 
properly, albeit reluctantly, intercepted the possibility of 
majoritarian abuse.34

C. Initiative 350 Deters Satisfaction of the
Affirmative Duty to Remedy Past Segregation

The District Court correctly recognized that Initiative 350 
prohibits all non-neighborhood desegregation assignments, 
except pursuant to court order, regardless of whether a 
Washington school district has a constitutional duty to 
desegregate. Under Initiative 350, only a court may eliminate 
(cont.)

The testimony of the State's expert, Don Morgan, that the results of 
certain polls “ do not reflect a racial bias on the part of the respondents,” 
was thoroughly refuted. The subject polls do not permit a conclusion one 
way or the other with respect to racial bias, as they were designed neither 
to ascertain the existence of such a factor nor to control for the fact that 
people seldom admit to racial bias, even where they are conscious of being 
biased. J.A. 154-67; see note 32 supra. Little if any credence was due the 
defense expert’s conclusion after lengthy cross-examination and rebuttal 
testimony. See Tr. 856-918 & 943-72 (testimony of Don Morgan); Tr, 
1288-1345 & 1435-42 (testimony of Dr. James Morishima, plaintiffs’ 
expert); Tr. 1351-71 (testimony of Dr. Douglas L. MacLachlan, plaintiffs’ 
expert); PI. Ex. 128 (statement of Dr. Morishima).

34 That a statute with certain similarities in language to Initiative 350 
might be upheld in the absence of similar proof of segregative purpose 
and effect, as was the case with the federal statute upheld in Brown v. 
Califano, 627 F.2d 1221, 1230-31 & n.57 (D.C. Cir. 1980), is irrelevant to 
a decision in this case. See also note 35 infra.



35

the core, as well as the vestiges, of past purposeful 
segregation, thus vitiating the “ affirmative" nature of the 
local districts’ constitutional duty. Moreover, the initiative 
similarly impedes the federal statutory duty and goal to 
eliminate non-purposeful segregation.

1. The Affirmative Constitutional Duty
It is by now well established that local school districts have 

an affirmative constitutional duty promptly “ to eradicate 
the effects" of past unlawful segregation.35 Dayton Board 
o f Education v. Brinkman (II), 443 U.S. 526, 537 (1979). 
“ [T]he measure of the post-Brown I  conduct of a school board 
under an unsatisfied duty to liquidate a dual system is the 
effectiveness, not the purpose, of the actions in decreasing 
or increasing the segregation caused by the dual system.” 
Id. at 538. Thus, the district is under “ the obligation not 
to take any action that would impede the process of 
disestablishing the dual system and its effects." Id. (relying 
upon Wright v. Council o f Emporia, 407 U.S. 451 (1972), and 
United States v. Scotland Neck City Board o f Education, 
407 U.S. 484 (1972)36). Specifically included within the 
affirmative duty is a responsibility “ to see that pupil 
assignment policies" “ are not used and do not serve to 
perpetuate or re-establish the dual school system." Columbus 
Board o f Education v. Penick, 443 U.S. 449, 460 (1979).

35 The duty applies to local districts, not to federal agencies or courts. 
This analysis is therefore inapplicable to federal laws affecting only federal 
instrumentalities. See note 34 supra. Moreover, the facial overbreadth 
analysis, infra at 41-42, is doubly inapplicable to federal laws affecting 
federal courts, since federal courts could hardly be deterred by a facially 
overbroad law, and in fact have not been. E.g., Morgan v. Kerrigan, 530 
F. 2d 401, 412-13 (1st Cir.), cert, denied, 426 U.S. 935 (1976). Thus, it is 
irrelevant that this analysis has not been applied to the various federal 
statutes discussed by appellants. Whether those statutes are or are not 
constitutional is neither directly nor effectively at issue here.

3® Scotland Neck is instructive in that no court had found the district guilty 
of unlawful segregation. After the district agreed to desegregate, the state 
legislature passed a bill creating a new district. 407 U.S. at 486-87. This 
Court struck down the legislation as likely to ‘ ‘impede the dismantling” 
of the dual system. Thus, Scotland Neck stands directly for the proposition 
that, whatever a state’s authority under state law, it may do nothing to 
interfere with a local district’s determination and satisfaction of its own 
constitutional duty. Dayton / ,  433 U.S. 406 (1977), is in no way 
inconsistent, because in Dayton I  the district had reconsidered its own 
decision prior to implementation.



36

The imposition of this duty on local districts recognizes 
not just their responsibility but also the vital national 
tradition in local autonomy of school districts, Milliken v. 
Bradley (I), 418 U.S. 717, 741-42 (1974), and the fact that 
local authorities are in the best position for “ elucidating, 
assessing and solving these problems.” Brown v. Board o f 
Education (II), 349 U.S. 294, 299 (1955).

2. Necessity o f  “Busing”
The courts below agreed that Seattle could not effectively 

eliminate segregation with the techniques permitted under 
Initiative 350. 473 F. Supp. at 1001-02, 1007 and 1010, J.S. 
A-7, A-8 and A-23 to A-25 (FF 3.5, 3.6, 3.8, 6.14, 8.1, 8.5, 
11.1, and 11.2); 633 F.2d at 1346 and n.9, J.S. at B -ll .37 This 
Court’s experience has led it to the same conclusion: “ bus 
transportation has long been an integral part of all public 
educational systems, and it is unlikely that a truly effective 
remedy could be devised without continued reliance upon it.” 
North Carolina State Board o f Education v. Swann, 402 U.S. 
43, 46 (1971); accord, Swann v. Charlotte-Mecklenburg Board

37 “ A seasoned and wise rule of this Court makes concurrent findings of 
two courts below final here in the absence of very exceptional showing 
of error.” Comstock v. Group o f Institutional Investors, 335 U.S. 211, 
214 (1948).

Contrary to the present suggestion of the United States, CiVIC’s “ open 
enrollment” plan would not have been "effective” in obtaining “ fully 
integrated” schools. Brief at 6 & n.9; see id. at 25. This support for a 
“ freedom of choice” plan runs contrary to the position the United States 
took earlier in this case and in over two decades of school desegregation 
litigation. E.g., Memorandum for the United States as Amicus, Green 
v. County School Board, 391 U.S. 430 (1968). That earlier position was 
accepted by this Court in Green. Id. at 440-41.

The evidence at trial established beyond doubt the lower court’s finding 
that desegregation in Seattle would be impossible under the initiative. 
See, e.g., J.A. 75, 89-91, 106, 123-30, 150-51, 193-96, & 202-03; Tr. 1414-15 
(“ Any plan consistent with Initiative 350 . . . would create the most 
segregated student populations . . . that the Seattle Public Schools has 
ever known, both in the numbers of schools and in the percentage of 
minority racial imbalance.” ).

The State asserts that it controls student assignments and all other 
aspects of education in Washington. In light of that, it is informative that 
the State has failed to develop and adequately fund an effective voluntary 
desegregation program for state schools such as Seattle's. Instead, both 
the State and the United States have reduced funding for voluntary 
programs and the excess cost of voluntary program busing.



37

of Education, 402 U.S. 1, 28-29 (1971).38 Consequently, this 
“ state-imposed limitation on a school authority’s (student 
assignment] discretion operates to inhibit or obstruct the 
operation of a unitary school system or impede the 
disestablishing of a dual school system,” and it must 
therefore fall. North Carolina State Board, 402 U.S. at 45.

Initiative 350 does provide that it “ shall not prevent any 
court of competent jurisdiction from adjudicating 
constitutional issues relating to public schools.” This 
"recitation of the obvious” Tr. 1171-72, simply recognizes 
the impossibility of prohibiting courts from ordering non­
neighborhood assignment of students where necessary to 
remedy a constitutional violation; it is, in the drafter’s words, 
“ superfluous.” Def. Ex. A-102, p.3. Yet, if past segregation 
must remain unremedied pending court action, then there 
is no affirmative duty on the part of the local school districts 
at all. If the affirmative nature of that duty means anything, 
it means that a local district may not, and must not, await 
a court order to desegregate.39 It is precisely for that reason 
that the courts uniformly applaud efforts of local districts 
to desegregate without a contested court order. E.g., 
Armstrong v. Board o f School Directors, 616 F.2d 305, 312-13 
(7th Cir. 1980); United States v. Board o f Education, 88 
F.R.D. 679, 681-82 (N.D. 111. 1980).

38 Despite widespread unhappiness with mandatory busing, and despite 
the Congressional directive to consider other alternatives first, 20 U.S.C. 
§§ 1713-14 (1976), no alternative or combination of alternatives has been 
found sufficiently effective to eliminate the need for a mandatory student 
assignment component in numerous plans approved by the lower federal 
courts. Indeed, even decisions involving only the question of liability, and 
not remedy, are usually viewed by the public, the press, and even the 
parties as “ busing” decisions, because it is well recognized that mandatory 
student assignments are essential to effective desegregation. E.g., Dayton 
II, supra; Columbus, supra.

38 California’s Proposition 1, the subject of Crawford v. Board of 
Education, No. 81-38, expressly authorizes local school boards to continue 
or commence integration plans, including student assignments and
transportation, regardless whether required to satisfy a court order. 
Federal law expressly authorizes local districts voluntarily to adopt 
desegregation plans that include busing. 20 U.S.C. § 1716 (1976).



38

3. The “ Saving” Construction o f  Initiative 350
Implicitly admitting the force of the above argument, the 

Washington Attorney General seems to posit a construction 
of Initiative 350 that would allow a school district to act in 
the absence of a court order if it correctly perceives that it 
is under a duty to act and if it has exhausted all means of 
desegregation short of non-neighborhood assignments. This 
admitted attempt to rewrite the initiative to avoid 
unconstitutionality fails for a number of reasons.

First, this executive amendment is contrary to the 
initiative’s plain language and purpose. Initiative 350 
prohibits all non-neighborhood assignments other than those 
falling within its exceptions. The exception in question 
applies only to a court’s duty to enforce the Constitution, 
not a local school district’s duty to do so, and the State can 
point to no legislative history supporting its interpretation.40 
The courts below rejected the State’s construction, and were
<0 The State purports to find some support, but the testimony cited, Brief 
at 39 n.8, instead indicates that CiVIC planned to sue to enjoin any school 
district that did not immediately comply with the initiative—regardless 
of whether the district perceived a constitutional duty requiring non­
neighborhood assignments. In particular, CiVIC planned to sue to enjoin 
the Seattle Plan, even though the State apparently believes that Seattle 
had recognized a legal duty to desegregate. Brief at 41. Any construction 
of the initiative that would preserve the Seattle Plan is hardly consistent 
with its undisputed purpose to do nothing if not end the Seattle Plan.

Within weeks of the Court of Appeals’ decision, House Bill 711 was 
introduced in the Washington State Legislature to terminate state funding 
of mandatory desegregation transportation. The bill was similar to 
Initiative 350 in that the funding termination was indirect, accomplished 
by reimbursement for transportation to the nearest or next-nearest school, 
with several exceptions. The Legislature rejected an amendment that 
would have continued traditional state funding of student transportation 
where an affirmative constitutional duty to desegregate existed. The 
refusal of the Legislature to incorporate the Attorney General’s 
interpretation of Initiative 350 into the subsequent statute drafted by 
the same attorneys litigating this case for the State speaks volumes about 
that interpretation.

The bill was enacted into law, Ch. 343, 1981 Wash. Laws, but was 
permanently enjoined in an action filed by most of the same plaintiffs 
as in the present case. Seattle School District No. 1. u. Washington, No. 
C81-276T (W.D. Wash. Dec. 18, 1981) (findings, conclusions, and opinion). 
The rejected amendment was one reason for the district court’s ruling 
that the funding version of Initiative 350 was also unconstitutional. Id. 
at 5-6.



39

in a better position than this Court to determine its validity 
under state law principles. See note 30 supra.

Although legislation must be construed where possible to 
accord with the Constitution, “ this does not imply, if the text 
of an act is unambiguous, that it may be rewritten to 
accomplish that purpose.” Howard v. Illinois Central R.R., 
207 U.S. 463, 501 (1908). Accordingly, in Lee and North 
Carolina State Board this Court affirmed the district courts’ 
refusal to accept similar “ saving” constructions “ too 
tortuous to warrant serious consideration.” Lee, 318 F. Supp. 
at 715-16; accord, North Carolina State Board, 312 F. Supp. 
503, 507 (W.D.N.C. 1970).

Additionally, the intimation that the Washington Attorney 
General has construed the statute so as to recognize the 
affirmative constitutional duty is inaccurate. The Attorney 
General refused to provide an opinion construing the statute, 
preferring instead to await the outcome of this litigation 
before determining how broad a formal opinion to give. Def. 
Ex. A-89, Tr. 589. There is no objective and authoritative 
opinion of the Attorney General—only litigative posturing.

Even if the purported construction had come through a 
formal opinion by the Attorney General, state courts would 
accord it only as much deference as its logic demands.41 Thus, 
the State’s present interpretation of Initiative 350 could be 
upset by any interested party, including the State itself.42
41 E.g., Kasper v. Edmonds, 69 Wash. 2d 799, 805, 420 P.2d 346, 350 (1966) 
(Attorney General’s opinion will be ignored where contrary to “ reason, 
legislative history, or other rules of statutory construction ’).

The United States cites Lynch v. Overholser, 369 U.S. 705, 710-11 (1962), 
as somehow standing for the proposition that “ (ajbsent a state court 
interpretation, the Washington Attorney General’s interpretation clearly 
prevails over that of the district court.’ ’ Brief at 26 n.28. But in Lynch 
this Court rejected the Government’s statutory interpretation that was 
“ buttressed” by an analogous local court decision.

4* Cf. Washington v. Washington State Commercial Passenger Fishing 
Vessel Association, 443 U.S. 658, 693-95 (1979). The United States was 
not nearly so sanguine about the Washington Attorney General s 
representations in the Salmon Case. See Brief for the United States at 
78, Washington v. Washington State Commercial Passenger Fishing 
Vessel Association, supra.



40

Although school board members would be protected from 
personal liability if they had formal advice of the Attorney 
General as to the meaning of Initiative 350 and if they were 
correct as to the need for desegregation, that would not 
validate their actions if a court should interpret Initiative 
350 or the need for desegregation differently. State ex rel. 
Day v. Martin, 64 Wash. 2d 511, 392 P.2d 435 (1964). A state 
court injunction ending desegregation assignments in mid­
year would wreak havoc on the districts and the educational 
program. The mere threat of such injury and disruption 
would deter a district from acting.

Nor would the Attorney General’s representation free 
board members from personal concern with violating the 
plain language of a state statute. As the Court of Appeals 
noted, enforcement of Initiative 350 is not entrusted only 
to the Attorney General or to private persons; it is a civil 
statute imposing its own “ affirmative duty to comply.’ ’ 633 
F.2d at 1342 n.l, J.S. at B-4.

Most important, even under the State’s expedient 
construction, a local school board would be protected only 
if it could prove to a court that it had previously engaged 
in purposeful segregation with a current significant effect. 
Only on this question, racial desegregation of the schools, 
must a local board justify its actions relating to student 
assignment in court by a preponderance of the evidence. 
Thus, appellants’ “ saving” construction is subject to the 
same suspect classification as the law they now attempt to 
rewrite. Further, the State contends that the reviewing court 
would be engaged in the “ difficult proposition” of applying 
“ elusive concepts” in determining whether unlawful 
segregation exists. Brief of Appellants at 41. Thus, even a 
school board willing to confess its past guilt, in spite of the 
open-ended ramifications of such a confession, could not be 
sure of being upheld in court.



41

4. Initiative 350 Is Facially Overbroad
Regardless of the Attorney General’s desire to rewrite the 

plain language, the statute on its face prohibits conduct not 
just protected but required by the Constitution—re., 
satisfaction of the affirmative duty to desegregate by a local 
school district absent court order. Baggett v. Bullitt, 377 U.S. 
360, 373-74 (1964) (declaring statute unconstitutional on its 
face despite narrowing construction suggested by 
Washington Attorney General); see Gooding v. Wilson, 405 
U.S. 518, 524 (1972). There should be no less concern with 
the effect of a facially overbroad law on satisfaction of the 
constitutional duty to desegregate than on exercise of the 
constitutional right to free speech. For that very reason, the 
present school districts have standing to assert the effect 
of the initiative both on themselves and on other districts 
that might have followed their example in desegregating 
through all necessary means but who might be deterred by 
Initiative 350 from doing so. Schad v. Borough o f Mount 
Ephraim, 452 U.S. 61 (1981).

In North Carolina State Board, this Court unanimously 
declared the relevant provision of an antibusing statute to 
be unconstitutional on its face—not just in its application 
to particular districts undergoing court-ordered 
desegregation. See 312 F. Supp. at 510. The Court found that 
the statute’s “ apparently neutral form’ ’ would deprive 
“ school authorities of the one tool absolutely essential to 
fulfillment of their constitutional obligation to eliminate 
existing dual school systems.” 402 U.S. at 45-46. Because 
“ all reasonable methods” must be available, and because “ it 
is unlikely that a truly effective remedy could be devised 
without continued reliance” on bus transportation, the 
antibusing statute “ must inevitably conflict with the duty 
of school authorities to disestablish dual school systems.” 
Id. at 46. The Court so held even though not all the state’s 
schools were under court order and the district court had 
found that busing would not invariably be necessary to an 
effective remedy. 312 F. Supp. at 510.



42

The scope of the order upheld in North Carolina State 
Board indicates that the decision was not limited to school 
districts that had been judicially declared guilty of 
unconstitutional segregation which could be remedied only 
with non-neighborhood assignments. That understanding is 
confirmed by McDaniel v. Barresi, 402 U.S. 39 (1971), also 
decided unanimously the same day. In McDaniel, a state 
court had enjoined race-conscious student assignments in 
a non-court-ordered desegregation plan. This Court 
overturned that decision on the ground that satisfaction of 
the affirmative duty to disestablish unlawful segregation 
“ will almost invariably require that students be assigned 
‘differently because of their race.’ ’ ’ Id. at 41.

5. Initiative 350 is Preempted by Federal Legislation
Even if the State is correct that there is no possibility of 

unconstitutional segregation in Washington schools, many 
schools would nonetheless be segregated in fact under 
Initiative 350. The initiative is therefore preempted by 
federal statutes that prohibit school segregation, regardless 
of cause, and that have the purpose of reducing such 
segregation.43

Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d 
(1976), bans racial discrimination in programs receiving 
federal financial assistance. In Lau v. Nichols, 414 U.S. 563, 
568 (1974), this Court interpreted Title VI as prohibiting 
discriminatory effect “ even though no purposeful design is 
present.” Although Title VI was interpreted as going no 
farther than the Constitution with respect to purposeful 
conduct benefiting minorities in Regents o f the University

43 Although this rationale was not relied upon in the Court of Appeals, 
the cause of action was stated in appellees’ complaint, and “ the prevailing 
party may, of course, assert in a reviewing court any ground in support 
of his judgment, whether or not that ground was relied upon or even 
considered by the trial court.’ ’ Dandridge v. Williams, 397 U.S. 471, 475 
n.6 (1970). See also New York City Transit Authority v. Beazer, 440 U.S. 
568, 582 (1979).



43

of California v. Bakke, 438 U.S. 265 (1978), a plurality of the 
Court in Fullilove v. Klutznick, 448 U.S. 448, 479 (1980), 
described Lau approvingly as not requiring purpose. 
Moreover, interpreting Title VI as applying to disparate 
impact is consistent with Title VII of the same act. NAACP  
v. Medical Center, Inc., 657 F.2d 1322,1330-31 (3d Cir. 1981) 
(en banc).

Regardless of the proper interpretation of Title VI as a 
general matter, its interpretation as to public school 
segregation has been determined by Congress. The 
Emergency School Aid Act specifies that Title VI “ shall be 
applied uniformly in all regions of the United States in 
dealing with conditions of segregation by race whether de 
jure or de facto in the schools of the local educational agencies 
of any State without regard to the origin or cause of such 
segregation.” 20 U.S.C. § 3193(b) (Supp. I l l  1979).

This language is that of the version of the Stennis 
amendment analyzed by this Court in Board o f Education 
v. Harris, 444 U.S. 130 (1979), as not requiring purpose. A 
different version of the Stennis amendment appears as part 
of Title VI, 42 U.S.C. § 2000d-6 (1976), and seems to preserve 
whatever distinction there might be between purposeful and 
nonpurposeful discrimination under Title VI. 444 U.S. at 146 
n.10 and 150 n.13. But the language applying Title VI 
specifically to schools expressly leaves off the second half 
of that version and thus, with respect to school segregation, 
eliminates whatever distinction there might otherwise be. 
That is consistent with the regulations administering Title 
VI with respect to schools; those regulations do not require 
a showing of purpose. 34 C.F.R. § 100.3(b)(l)(iii) and (b)(2) 
(1981). See generally Abernathy, Title VI and the 
Constitution: A R egulatory M odel for Defining  
‘Discrimination,”  70 Geo. L.J. 1 (1981).

Because mandatory student assignments were found in the 
circumstances here to be essential to desegregation, 
Initiative 350 violates and is preempted by Title VI. 42 
U.S.C. § 2000h-4 (1976); see Washington v. Washington State



44

Commercial Passenger Fishing Vessel Association, 443 U.S. 
658, 695 (1979).

Moreover, Congress has separately stated its purpose to 
“ encourage the voluntary elimination, reduction, or 
prevention of minority group isolation in elementary and 
secondary schools with substantial proportions of minority 
group students.” 20 U.S.C. § 3192(b)(2) (Supp. I l l  1979). As 
this Court put it, the statute “ indisputably demonstrates 
that Congress was disturbed about minority segregation and 
isolation as such, de facto as well as de jure . . . .”  Harris, 
444 U.S. at 141. By flatly prohibiting the voluntary action 
the statute seeks to encourage, Initiative 350 “ stands as an 
obstacle to the accomplishment and execution of the full 
purposes and objectives of Congress.” Hines v. Davidowitz, 
312 U.S. 52, 67-68 (1941).

6. Conclusion
The involvement of this Court and the lower federal courts 

in desegregating this nation’s schools has been necessary but 
troubled. Court intervention increases resentment, decreases 
flexibility and community involvement, and both results 
from and contributes to delay. Seattle, Tacoma, and Pasco 
developed solutions that promised realistically to work, and 
to work now. If they cannot act absent court order, or if it 
is only uncertain whether they can act absent court order, 
there will be no action until the court takes control. The 
affirmative duty will be a nullity, and Washington school 
districts will rejoin those districts across the country that 
have abdicated responsibility to the courts on this vital 
national issue.

D. The Court of Appeals Correctly Found the Successful 
School District Plaintiffs Entitled to Their Costs 
and Attorney’s Fees

The Court of Appeals properly reversed the District 
Court’s denial of the school district plaintiffs’ costs and



45

attorney’s fees.44 As the Court of Appeals recognized, 
Congress intended the applicable attorney’s fees statutes to 
authorize the award of attorney’s fees to publicly as well as 
privately funded plaintiffs, without regard to the ability of 
the State to pay. This is shown by the express language of 
the statutes and their purpose and legislative history.45

1. Statutory Bases for Award of Attorney’s Fees 
The two statutes authorizing an award of fees here are 20 

U.S.C. § 3205 (Supp. I l l  1979), a section of the Emergency 
School Aid Act, and 42 U.S.C. § 1988 (1976), the Civil Rights 
Attorney's Fees Awards Act of 1976.46 Section 3205 
provides:

Upon the entry of a final order by a court of the United 
States against a local educational agency, a State (or 
any agency thereof), or the United States (or any agency 
thereof), for failure to comply with any provision of this 
chapter or for discrimination on the basis of race, color, 
or national origin in violation of title VI of the Civil 
Rights Act of 1964, or the fourteenth amendment to the 
Constitution of the United States as they pertain to 
elementary and secondary education, the court, in its 
discretion, upon a finding that the proceedings were 
necessary to bring about compliance, may allow the 
prevailing party, other than the United States, a 
reasonable attorney’s fee as part of the costs.

Section 1988 is phrased similarly, but applies to violations 
of 42 U.S.C. § 1983 (1976), and other provisions.

The school district plaintiffs met all express requirements 
for the award of fees under these statutes. The District Court 
entered a final order against the State for violation of the
44 The Court lacks appellate jurisdiction over this issue, since it does not 
involve the constitutionality of a state statute. 12 Moore’s Federal Practice 
1 435.01(2] (1981). Nor does this issue satisfy the considerations governing 
review on certiorari. Rule 17.1.

45 In the courts below, the United States supported the school district 
plaintiffs’ right to an award of fees.

48 Section 3205 was codified at 20 U.S.C. §1617 prior to reenactment in 
identical form, effective October 1, 1979, as part of the Education 
Amendments of 1978, Pub. L. No. 95-561.



46

Fourteenth Amendment and § 1983. A violation of the 
Fourteenth Amendment is necessarily also a violation of Title 
VI. These proceedings were necessary to bring about 
compliance with federal law. Finally, the school district 
plaintiffs are prevailing parties other than the United States.

2. An Award o f  Fees Serves the Congressional Purposes
No significant differences divide the language, purposes, 

or application of § 3205 and § 1988. As this Court has noted, 
the similarity of language between the provisions authorizing 
the award of attorney’s fees under the Emergency School 
Aid Act and the Civil Rights Act of 1964 “ is, of course, a 
strong indication that the two statutes should be interpreted 
pari passu.” Northcross u. Board o f Education, 412 U.S. 427, 
428 (1973). As was true of the provisions construed by this 
Court in Northcross, § 3205 and § 1988 share “ a common 
raison d'etre.”  412 U.S. at 428. The enactment of both 
provisions was for the same purpose: to encourage 
enforcement of the law in these areas and to deter violations 
of such law. See id.; Carey v. Piphus, 435 U.S. 247, 258 n .ll  
(1978). Thus, in enacting the Civil Rights Attorney’s Fees 
Awards Act of 1976, Congress intended that § 1988 be given 
the same liberal construction that had been accorded the 
predecessor of § 3205. S. Rep. No. 94-1011, at 3 (1976).

In particular, Congress commanded that courts applying 
§ 1988 adhere to the rule established by this Court in 
Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 
(1968), that the prevailing party “ should ordinarily recover 
an attorney’s fee unless special circumstances would render 
such an award unjust.” S. Rep. 94-1011, at 4 (1976); H R. 
Rep. No. 94-1558, at 6 (1976). At the time § 1988 was drafted, 
this Court had applied that standard to § 3205. Northcross, 
supra, 412 U.S. at 428. It has since been held applicable to 
§ 1988. See New York Gaslight Club, Inc. v. Carey, 447 U.S. 
54, 63 (1980).

Thus, although the statutes entrust the amount of the fee 
award to the discretion of the district court, “ the trial court's 
discretion is narrow.” Dawson v. Pastrick, 600 F.2d 70, 79



47
(7th Cir. 1979), cert, denied, 450 U.S. 919 (1981). Absent 
special circumstances rendering an award unjust, there is 
no discretion to deny totally an award. Id. Such discretion 
“ (njot to award counsel fees in cases such as this would be 
tantamount to repealing the Act itself by frustrating its basic 
purpose.” S. Rep. No. 94-1011, at 3 (1976) (quoting from Hall 
v. Cole, 412 U.S. 1 (1973)).

3. No Special Circumstances Exist Here
Nothing inherent in the mere circumstance that the legal 

services rendered here were publicly funded makes an award 
of attorney’s fees unjust. The courts have held with 
substantial uniformity that government funding of plaintiffs’ 
legal services is “ irrelevant to the computation of attorney’s 
fees."Donaldson v. O'Connor, 454 F. Supp. 311, 313 (N.D. 
Fla. 1978); accord, Lund v. Affleck, 587 F.2d 75 (1st Cir. 
1978); Mid-Hudson Legal Services, Inc. v. G & U, Inc., 578 
F.2d 34 (2d Cir. 1978); Rodriguez v. Taylor, 569 F.2d 1231 
(3d Cir. 1977), cert, denied, 436 U.S. 913 (1978); Tillman v. 
Wheaton-Haven Recreation Ass'n, 517 F.2d 1141 (4th Cir. 
1975); Incarcerated Men o f Allen County Jail v. Fair, 507 
F.2d 281 (6th Cir. 1974); Dennis v. Chang, 611 F.2d 1302 (9th 
Cir. 1980); Regalado v. Johnson, 79 F.R.D. 447 (N.D. 111. 
1978).

The school district plaintiffs requested the State of 
Washington to fulfill its duty to challenge or otherwise 
remove the constitutional infirmities of Initiative 350. Had 
the State responded, it would not now be liable for the school 
district plaintiffs’ attorney’s fees. Because the State did not 
respond, the school district plaintiffs were faced with a choice 
between com plying with a statute they believed 
unconstitutional, in violation of constitutional duty and the 
board members’ oaths of office, or vigorously challenging 
the statute, but only by temporarily diverting public funds 
(only a portion of which comes from the State) from direct 
education. The boards’ choice to protect students’ 
constitutional rights must not be considered a “ special 
circumstance.”



48

Had the school districts chosen to ignore their duty to 
comply with the Constitution, they would have been made 
defendants and would now share the State’s liability for the 
attorney’s fees and costs of the other plaintiffs. Without the 
legitimate expectation that a successful challenge of 
Initiative 350 would entitle them to their costs incurred in 
that challenge, these plaintiffs might have been reluctant to 
vindicate rights that Congress has deemed of “ the highest 
priority.” Moreover, even if a fee award were not necessary 
to encourage these plaintiffs to vindicate federal rights, 
“ assessing fees against defendants in all circumstances may 
deter wrongdoing in the first place.” Dennis v. Chang, 611 
F.2d at 1306 n.12; accord, Carey v. Piphus, supra.

If Congress had intended school districts funded in part 
by states to divert their funds from education, it could have 
easily so stated, just as it did with respect to the United 
States as plaintiff. The State is asking this Court to write 
an exception into the plain language of the statutes based 
not on any policy reflected in the statutes themselves but 
on a countervailing policy of the State’s “ fiscal crisis.” In 
effect, the State is asking the Court to put a price on civil 
rights, and weigh that price against the State’s interest in 
the integrity of its treasury.47 Congress was well aware of 
the limits of state resources when it enacted these statutes, 
yet no such exception was provided. S. Rep. No. 94-1011, 
at 5 (1976).48

The State’s assertion that limited state budgets might 
outweigh Congress’ policies of deterring constitutional 
violations and encouraging vindication of constitutional 
rights is a questionable proposition. More important, it is 
up to Congress, not this Court, to balance the competing 
considerations advanced here by the State. Current efforts 
by the State and others to convince Congress to amend these

*7 Instead, the possibility of fee awards should provide the State with an 
incentive to avoid unconstitutional action during fiscal crises.

The State s suggestion that Congress exceeded its authority in this 
determination is refuted by Hutto v. Finney, 437 U.S. 678 (1978).



49

statutes to preclude fee awards to publicly funded entities, 
efforts that have specifically pointed to the result in this case, 
have so far been unsuccessful. This Court should reject 
appellants’ plea that it do what Congress has refused to do: 
amend the statutes. See Maher v. Gagne, 448 U.S. 122, 129 
(1980) (refusing to depart from plain language of § 1988).

4. An Award is Due Other Plaintiffs 
Even if the districts themselves were not entitled to an 

award of fees, the individual plaintiffs who brought this suit 
with them would be. The fact that the individual plaintiffs 
did not fund this litigation does not extinguish their right 
to attorney’s fees. Antitrust and civil rights plaintiffs 
routinely obtain court awarded fees even though they had 
not expended any sums. In Brandenburger v. Thompson, 474 
F.2d 885, 889 (9th Cir. 1974), the Ninth Circuit stated:

[T]he fact that the plaintiff was not obligated to pay the 
ACLU for its services is not a bar to an award of 
attorneys’ fees. All that is required is the existence of 
an attorney-client relationship . . .  Of course, the award 
should be made directly to the organization providing 
the services to ensure against a windfall to the litigant.

Accord, H.R. Rep. No. 94-1558, at 8 n.16 (1976) (“ a prevailing 
party is entitled to counsel fees even if represented by an 
organization” ).



50

CONCLUSION

The judgment of the Court of Appeals should be affirmed. 
Initiative 350 is unconstitutional, and the school district 
plaintiffs are entitled to their attorney’s fees and other 
reasonable expenses.

DATED this 25th day of January 1982.

Respectfully submitted,

MICHAEL W. HOGE*
General Counsel
Seattle School District No. 1

CAMDEN M. HALL, P.S.*
G. RICHARD HILL 
Foster, Pepper & Riviera 
Special Counsel for all School 
District Plaintiffs

DAVID J. BURMAN 
Perkins, Coie, Stone,
Olsen & Williams 
Special Counsel for Seattle 
School District No. 1

♦Counsel of Record