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

    No. 81-9

In The

Supreme Court of the United States 

October Term, 1981

STATE OF W ASHINGTON, et alM
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 AMICUS CURIAE 
Seattle Chapter

Japanese American Citizens League

William J. Bender 
1111 Third Ave. Building 
Suite 1500 
Seattle, WA 98101 
(206) 623-6501

Rodney L. Kawakami 
Gary Iwamoto 

Gary Huie 
Benson Wong 

671 S. Jackson, Suite 201 
Seattle, WA 98104 

(206) 682-9932

Attorneys for Amicus Curiae 
Seattle Chapter Japanese 
American Citizens League



1
TABLE OF CONTENTS

Page
Interest of Amicus Curiae .......... 1
Question Presented.................. 4
Argument............................ 5

A. Introduction.................. 5
B. Asian Americans Have Suffered 

And Continue To Suffer From Invidious Racial Discrimination
In The Area Of Public Education 11
1. There is a long history of

invidious discrimination 
against Asian Americans . . 11

2. Asian Americans still suffer from the effects of 
past discrimination . . . .

C. Initiative 350 Created An
Impermissible Racial Classi­
fication Which Placed Special 
Burdens On The Attainment Of 
Policies Favoring Minorities. . 26

D. Assuming Hunter v. Erickson,
Supra, And Lee v. Nyguist,
Supra, Do Not Control, 
initiative 350 Is Invalid Because It Was Enacted With 
The Intent To Discriminate On 
Racial Grounds And Therefore 
Violates The Fourteenth 
Amendment Of The United States 
Constitution..................

Conclusion. 43



ii
TABLES OF AUTHORITY

Table of Cases
Asakura v. Seattle, 122 Wash. 81 

(1922). . . . ................
Brown v. Board of Education,

347 U.S. 483, 74 S. Ct. 686,
98 L. Ed 873 (1954)...........  18,19,26

Columbia Board of Education v.
Penick, 443 U.S. 449 (19791. . 34

Corrigan v. Buckley, 271 U.S. 323
1192677.................  17

Crawford v. Board of Education of 
the City of Los Angeles, 17 Cal.
3rd 280, 94 Cal. Rptr. 531 (1976) 23

Defunis v. Odegard, 416 U.S. 312,
40 L. Ed 2d 164, 94 S. Ct. 1704
(1974)...................  21,22

Gong Lum v. Rice, 275 U.S. 323 (1927) 15,16
Graham v. Richardson, 403 U.S.

365, 29 L. Ed 2d 534, 91 S. Ct.1848 (1971).............  18
Guey Hueng Lee v. Johnson, 404

U.S. 1215T1971) . ............  22
Hsieh v. Civil Service Commission,

79 Wash. 2d 529,488 P.2d 515 (1971) 14
Hunter v. Erickson, 393 U.S.

385~Tl969) 27,28,30,33



• • • 
1 1 1

Johnson v. San Francisco United 
School District, 339 F. Supp.
1315 (N.E. Cal. 1971),
vacated and remanded on other
grounds, 500 F. 2d 349 T9th
Cir. 1974)....................  25

Lau v. Nichols, 414 U.S. 563,
39 L. Ed 2d 1, 94 S . Ct. 786
(1974).    19,20

Lee v. Lee County Board of 
Education, 639 F.2d 1243
( 1 9 8 1 ) .  . ................................................. 39 , 40

Lee v. Nyquist, 318 F. Supp. 710 
(W.D. N.Y., 1970), aff'd, 402 
U.S. 935 (1971)   27,28,29,30,33

Oyama v. California, 332 U.S. 633
(1948)........................  18

Ozawa v. United States, 260 U.S. 178
(1922)........................  12

Personnel Administrator of Mass- 
achusetts v. Fenney, 442 U.S.
256~TT9 79) . . 7 ............................  3 4 , 3 7 , 3 8 , 3 9

Plessy v. Ferguson, 163 U.S. 537
(1896).    16,19

Slaughterhouse Cases, 16 Wall. 36
JJQ73TT-......................  18

Soria v. Oxnard School District,
386 F. Supp. 539 (C.D. Cal.
1970)........................  22-23

Tape v. Hurley, 66 Cal. 473, 6
P. 129 (1885)................  14



iv
Village of Arlington Heights v.
Metropolitan Housing Development
Corp., 429 U.S. 252 Tl977T7~7_7~ 34,36,42

Washington v. Davis, 426 U.S. 229
(1976)............  34,35,36,39

Wong Him v. Callahan, 119 F. 381
(9th Cir. 1902)......... 15

Yamashita v. Hinkle, 260 U.S. 199(1922)................... 13
Yick Wo v. Hopkins, 118 U.S. 356

11886)................... 18,33
Constitutional Provisions

U.S. Const, amend. XIV . . . .  18,29,33,
34,38, 
et seq.

Table of Statutes
Act of March 12, 1885, ch. 117,

§1, 1885 Cal. Stat. 99 (1885) 15
Chinese Exclusion Act of 1881,
Act of May 6, 1882, ch. 126 §1,Stat. 58 (1882).........  12

Title VI of the 1964 Civil Rights Act 20
§137 of the Akron, Ohio City Charter 27,28
275 U.S. at 79.............  16

Other Authority
Ghin, Golden Tassels, a History of 

Chinese in Washington 1857-1977 
(Seattle: Art Chin, 1977) p. 53 17



V
"Facilities Consolidation Impacts 
and Desegregation Implementation", 
Memorandum, December 15, 1981 21

McGovney, Anti-Japanese Land Laws 
of California & Ten Other States,
35 Cal.L. Rev. 1, p. 54 (194T) 12

Schools and Neighborhoods Research 
Study, Minority Population Shifts 
in the Seattle Area  ̂ (city of 
Seattle and Seattle Public Schools, 
October, 1977)...............  6,7

Seattle Plan for Eliminating Racial 
Imbalance, Fifth Year Summary Report 
in Response to Community and School 
Board Members' Questions. . . . 21,24

1977- 78 Racial Distribution of
Students and Staff, Seattle Public 
Schools ...........  6,7,8,10

1978- 79 Racial Distribution of
Students and Staff, Seattle Public 
Schools ...........  5,9,10

1980-81 Racial Distribution of
Students and Staff, Seattle Public6,7,9,10,11,24Schools.



IN THE
Supreme Court of the United States 

JANUARY TERM 1981

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

v.
STATE OF WASHINGTON, et al., 

Appellants.

ON APPEAL FROM THE UNITED STATES 
COURT OF APPEALS 

FOR THE NINTH CIRCUIT

BRIEF OF AMICUS CURIAE 
SEATTLE CHAPTER,

JAPANESE AMERICAN CITIZENS LEAGUE

INTEREST OF THE SEATTLE CHAPTER OF THE 
JAPANESE AMERICAN CITIZENS LEAGUE
The Japanese American Citizens League

(JACL) consists of over 100 local chapters
throughout the U.S. representing over
29,000 members. Founded in 1930, JACL has



2
involved itself in many civil rights issues 
in Washington State, seeking court and 
legislative remedies. The Seattle Chapter 
has also gone on record supporting the 
Seattle Plan of the Seattle School District 
which includes but is not limited to the 
mandatory reassignment of students.

It has been JACL's belief that the 
public schools should be a model of an 
integrated society and reflect that belief 
through the promotion of equal educational 
opportunity which enhances the diverse 
ethnic and racial differences of American 
society.

It is JACL's belief that Initiative 
350, if allowed to stand, would create 
segregated schools based upon race and 
severely limit the educational opportunity 
for all students, particularly those of 
Asian ancestry - Japanese, Chinese, Fili­
pino, Korean, Vietnamese, and others from



3
Southeast Asia and the Pacific Islands. 
This restrictiveness, due largely to 
housing patterns, would create schools 
further segregated by ethnic Asian communi­
ties, thus cutting them off from education­
al opportunities available within a school 
district.

In the past, school desegregation 
efforts have focused predominately on the 
needs of Black and White students. Wash­
ington State schools, with its large Asian 
population, must consider language and 
ethnic diversity in its desegregation 
efforts and these must be addressed through 
an overall district wide basis rather than 
as a separate, centralized and segregated 
community within the district.

JACL believes that Asian students 
of Washington State should have no barriers 
to their educational opportunity and that 
lower court rulings which have invalidated 
Initiative 350 should be upheld.



4
QUESTION PRESENTED

Does a state initiative passed by 
the voters of the State of Washington which 
forbids mandatory student assignments for 
racial reasons but permits such student 
assignments for purposes unrelated to race, 
create an impermissible legislative classi­
fication based upon racial criteria thereby 
rendering the initiative unconstitutional?



5
ARGUMENT

A. Introduction
We are in agreement with the statement 

of the case made by the appellee Seattle 
School District No. 1 in their answer to 
Appellant's Brief. In addition to that 
statement, we point out that Asians1 
constitute the second largest minority 
school population in the Seattle School 
District No. 1̂ . * 2

The use of the terra "Asian" in this 
brief corresponds to the "Asian/Pacific 
Islander" racial identification code 
utilized in the publication, 1978-79 Racial 
Distribution of Students and Staff.* 
Seattle Public Schools, 1978-79 Racial 
Distribution of Students and Staff, Volume 
I: Students (Seattle Public Schools,
December 15, 1978), p. 2.
2 Asian students in the Seattle Public 
Schools number 5,846 (10.8% of the dist­
rict-wide school population). Seattle 
Public Schools, 1978-79 Racial Distribution 
of Students and Staff, p. 199.
*The identification includes Chinese, 
Filipino, Japanese, Korean, Vietnamese, 
Southeast Asian, East Indian and Samoan 
school children.



6
Asians in Seattle have been tradition­

ally segregated/isolated in the Beacon 
Hill, Rainier Valley and Southeastern 
section of the city. A 1977 study of the 
distribution of the minority school popula­
tion in Seattle reported that the Japanese 
and Chinese remained concentrated in the
Beacon Hill and the Rainier Valley neigh- 

3borhoods . The report showed that Samoans

Seattle Public Schools, Schools and 
Neighborhoods Research Study, Minority 
Population Shifts in the Seattle Area , 
(City of Seattle and Seattle Public Schools, October, 1977), pp. 27-28.
In the 1977-78 school year, there were 
5,668 (9.7%) Asians in the District-wide
school population. The Chinese students 
numbered 1,707 (2.9%) and the Japanese
students numbered 1,242 (2.1%). Seattle
Public Schools, 1977-78 Racial Distribution 
of Students and Staff. Volume I: Students
(Seattle Public Schools, December 10, 1977), p. 177.
In the 1980-1982 school year, there were 
7,300 (15.1%) Asians in the district-wide
school population. The Chinese students 
numbered 1,933 (4.0%) and the Japanese
students numbered 874 (1.8%). Seattle
Public Schools, 1980-1981 Racial Distri­
bution of Students and Staff, Volume I: 
Students (Seattle Public Schools, November 15, 1977), p. 4.



7
predominantly resided in Southeast Seattle 
and the Filipino population was becoming 
increasingly concentrated in that same 
geographical area* 5.

4

Seattle Public Schools, Schools and 
Neighborhoods Research Study, Minority 
Population Shifts in the Seattle Area, p. 37 .
In the 1977-78 school year, 283 Samoan 
school children were enrolled in the 
Seattle Public Schools. Seattle Public 
Schools, 1977-78 Racial Distribution of 
Students and Staff, p. 177.
In the 1980-81 school year, 356 Samoan 
students were enrolled in the Seattle 
Public Schools. Seattle Public Schools, 
1980-1981 Racial Distribution of Students 
and Staff, Volume Is Students (Seattle
Public Schools, November 15, 1977), p. 4.
5Seattle Public Schools, Schools and 
Neighborhoods Research Study, Minority 
Population Shifts in the Seattle Area, p. 
33.
Filipino school children numbered 1,435 
(2.5%) in the 1977-78 school year. Seattle 
Public Schools, 1977-78 Racial Distribution 
of Students and Staff, p. 177.
Filipino students numbered 1,443 (3.0%) in 
the 1980-1981 school year. Seattle Public 
Schools, 1980-1981 Racial Distribution of 
Students and Staff, Vol. 1, p. 4.



8
Prior to implementation of the Seattle 

Plan, segregation resulted in a dispropor­
tionate concentration of Asian school 
children in attendance at schools such as 
Beacon Hill Elementary School and Dearborn

gPark Elementary School . Such segregation/ 
isolation within the public school system 
translated into inequitable and unequal 
educational opportunities for Asian 
students.

By reducing the segregation/isolation 
of Asian students, the Seattle Plan has 
afforded Asian students educational oppor­
tunities previously denied them. During 
the first year of implementation of the 
Seattle Plan, Asian school children at

In the 1977-78 school year, Beacon Hill 
Elementary School had 209 (56.9% of the 
total school enrollment) Asian students and 
Dearborn Park Elementary School had 138 
(31.2% of the total school enrollment) 
Asian students. Seattle Public Schools, 
1977-78 Racial Distribution of Students and Staff", pp. 17-18.



9
Beacon Hill Elementary School and Dearborn
Park Elementary School came to constitute a
number of students in the respective
student bodies more proportionate to the
Asian presence in the total school popula- 

7tion . At the same time, Asian school 
children, who were only nominally present 
at other schools such as Schmitz Park 
Elementary School, Genesee Hill Elementary 
School and Magnolia Elementary School prior

In the 1978-79 school year, Asian students 
numbered 107 (33.3% of the total school
enrollment) at Beacon Hill Elementary 
School and 98 (25.8% of the total school
enrollment) at Dearborn Park Elementary 
School. Seattle Public Schools, 1978-79 
Racial Distribution of Students and Staff, 
pp. 7 3-74.
In the 1980-1981 school year, Asian 
students (30.6% of the total student 
population) at Beacon Hill and 77 (25.1% of 
the total student population) at Dearborn 
Park. Seattle Public Schools, 1980-81 
Racial Distribution of Students and Staff, 
Volume I, p. 31, 33.



10
to the Plan, now attend those schools in

8greater number .
Finally, a major concern of the Asian 

American community in Seattle was the 
coordination of the Seattle School Dist­
rict's Bilingual Education Program with the 
district's desegregation efforts. The 
Seattle Plan has integrated the bilingual

Comparative fi g u r e s for Asian s t ud e n tenrollment for the 1977-78 and 1978-79school years are as fo1lows:
1977-78 1978-79 1980-81Schmitz Park

E lement ary 
Schoo1 21 (8.3) 36 (23.8) 71 (34.8%)Genesee Hill
Elementary
School 8 (2.6) 50 (25.1) 53 (22.3%)Magnolia
Element ary 
School 28 (7.4) 44 (17.2) 57 (19.1%)

Seattle Public Schools , 1977 -78 Ra ci a 1Distribution of Students and Staff, pp. 95,94, 66.
Seattle Public Schools , 19 78-79 RacialDistribution o f Students and Staff, pp. 95,94, 32.
Seattle Public Schools , 1980 -81 RacialDis tr ibut ion o f Students and Staff, VolumeI , p . 46, 3 7, 57 •



11
education program into the Seattle School
District's desegregation efforts such that
those Asians with limited English speaking
abilities are not isolated nor segregated
from the rest of the student population.
It should be noted that the number of
Vietnamese and other Southeast Asians has

9tripled in the last three years .
B . Asian Americans Have Suffered And 

Continue To Suffer From Invidious 
Racial Discrimination In The Area Of 
Public Education.
1. There is a long history of invid­

ious discrimination against Asian 
Americans.

For many years, Asian Americans were 
denied the rights of equal opportunities in

In the 1977-1978 school year, there were 
381 Vietnamese and 115 other Southeast 
Asian students (representing together 0.9% 
of the total student population) in the 
Seattle Public Schools. In the 1980-1981 
school year, there were 942 Vietnamese and 
964 other Southeast Asians (representing 
together 3.9% of the student population) in 
Seattle Public Schools. Seattle Public 
Schools , 1980-1981 Racial Distribution of 
Students and Staff, Volume I, p. 4.



12
this country. From the time that Asian 
immigrants first entered the country, those 
of Chinese, Japanese, Filipino, and other 
Asian ancestry encountered laws aimed to 
deny them rights enjoyed by American 
citizens. Immigration laws were passed to 
deny Asian immigrants the rights to citi­
zenship^. Alien land laws were passed 
to deny Asians the right to own land10 11. 
California, for example, assessed taxes on 
the Chinese such as a Foreign Miner's 
License, a passenger tax, and a Chinese 
Police tax (which assessed a monthly tax of
$2.50 on every Chinese over the age of

• ^  x 12 eighteen.)

1 0 See the Chinese Exclusion Act of 1882, 
Act of May 6 , 1882, ch. 126 § 1, 22 Stat.
58 (1882); Ozawa v. United States, 260 U.S. 1 78 ( 19 22 ) .

See McGovney, the Anti-Japanese Land Laws 
of California & Ten Other States, 35 Cal. 
L. Rev. 7 , p. 5 4 ( 1 947 ) .
1 2McGovney, Ibid, page 54, Appendix A, 
Anti-Chinese Legislation of California.



13
Many laws were passed to prevent

Asians from being employed in a variety of
occupations ranging from hairdressing to
the law. The city of Seattle passed an
ordinance restricting the Japanese from

13becoming pawnbrokers . The Japanese in
Washington State had no right to incorp-

. . 14orate a business
Many occupations in Washington State 

required United States citizenship. But 
for many years, Asians could not be natur­
alized and were "ineligible for citizen­
ship". Aliens in Washington State could 
not: serve as a justice of the peace;
serve process; become optometrists; become 
medical examiners; teach in the public 
schools on a permanent basis; incorporate a

Seattle City Ordinance passed in July, 
1921, upheld in Asakura v. Seattle, 122 
Wash. 81 (1922), but struck down, 265 U.S.
322 ( 1924) .
1 4See Yamashita v.
( 1 922) .

H inkle , 260 U.S. 199



14
bank; become firemen, policemen, or sher­
iffs; or sell alcohol. Washington statutes 
required citizenship or intended citizen­
ship in a variety of licensed occupations, 
including accountants, architects, beauti­
cians, dentists, lawyers, chiropractors,

1 5and pharmacists . Clearly, when Asian 
immigrants were ineligible for citizenship, 
the operation of these statutes precluded 
participation by many Asians from these 
activities and occupations.

In the area of public education, 
Asian school children have long been the 
victims of racial segregation. In 1885, a 
young Chinese girl sued to obtain permis­
sion to attend the San Francisco public 
schools after school officials denied her 
admission. In Tape v. Hurley, 66 Cal. 473, 
6 P. 129 (1885), the California Supreme

^See Hsieh v. Civil Service Commission, 79 Wash. 2d 529, 548-549, 550-552, 488 P.2d 
515 (1971)



15
Court ordered that she be admitted.
Thereafter, California's legislature passed
a bill in 1885 which stated:

Every school, unless otherwise 
provided by law, must be opened for 
the admission of all children 
between 6 and 21 years of age . . .
Trustees shall have the power to 
exclude children of filthy or 
vicious habits, or children suffer­
ing from contagious or infectious 
diseases, and also to establish 
separate schools for children of 
Mongolian or Chinese descent. When such separate schools are estab­
lished, Chinese or Mongolian child­
ren must not be permitted into any 
other school*^.

The segregated San Francisco school 
system was upheld against constitutional 
attack in the California State Supreme 
Court in Wong Him v. Callahan, 119 F. 381 
(9th Cir. 1902). A similar challenge to 
the exclusion of Chinese Americans from 
white schools was denied by the U.S. 
Supreme Court in Gong Lum v. Rice, 275 U.S. 
323 (1927). In this case, a Chinese

*^Act of March 12, 1885, ch. 117, §1, 1885
Cal. Stat. 99 (1885).



16
American named Martha Lum wanted to go to 
a white school in Rosedale, Mississippi, 
but school officials ordered her to go to 
a segregated black school. Said the 
Court:

The question is whether a Chinese 
citizen of the United States is 
denied equal protection of the laws 
when he is classed among the colored 
races and furnished education equal 
to that offered to all-^.

The Court said there was no denial of equal
protection relying on the case which
established the "separate and equal"

18doctrine, Plessy v. Ferguson
Segregation was not limited to the 

schools. In Seattle, segregated housing 
conditions limited Asians to certain parts 
of the city. The use of "restrictive 
covenants" prohibited Asians from residing 
in such areas as Magnolia, Broadmoor, 
Ballard, and the Lake Washington districts.

1 7 2 7 5 U.S. at 79.
^ Plessy v, Ferguson, 163 U.S. 537 ( 1896).



17
Asians moved into the First Hill area and
the Beacon Hill area because these areas
were the only ones in Seattle not covered

19by restrictive covenants . The use of 
privately created restrictive covenants was 
upheld by the United States Supreme Court, 
Corrigan v. Buckley, 271 U.S. 323 (1926).
The use of such covenants and court en­
forcement probably contributed to the 
maintenance of Chinatowns, Japantowns, and 
Manilatowns in Seattle.

2. Asian Americans still suffer from 
the effects of past discrimination.

In the last twenty-five years, great
strides have been made in the area of
civil rights. Laws discriminating against
Asian Americans and other minorities have
been struck down, primarily on the basis of 19

1 9 C h i n ,  G o l d e n  1 3 3 3 6 1 5 , a H i s t o r y  o f  
C h i n e s e  i n  W a s h i n g t o n ,  T857-1977 ( S e a t t l e :  
Art C h i n ,  1977) p. 53.



18
the equal protection clause of the Four­
teenth Amendment. The central purpose of 
the Fourteenth Amendment was to guarantee 
equality for blacks, e.g., Slaughterhouse 
Cases, 16 Wall. 36 (1873) and by extension, 
it has come to afford equal protection for 
other minority groups including Asians.
See e .g . Graham v. Richardson, 403 U.S.
365, 29 L . Ed 2d 534, 91 S. C t . 1 848
(1971) ; Oyama v . California, 332 U.S. 633
(1948) ; Yick Wo v. Hopkins, 118 U.S. 356
(1886). Those racial and national origin 
classifications struck down involved either 
unequal treatment of a minority group, e.g. 
Yick Wo v. Hopkins, supra (discriminatory 
application of an ordinance) or the exclu­
sion of minority groups from participation 
in the majority social institutions, with 
the resulting stigma of inferiority. See 
Brown v. Board of Education, 347 U.S. 483,
74 S. Ct. 686, 98 L. Ed 873 (1954).



19
Brown v. Board of Education, supra, is 

the landmark case in the area of establish­
ing equal opportunities in public educa­
tion. In striking down the "separate but 
equal" doctrine of Plessy v. Ferguson, 
supra, the 1954 U.S. Supreme Court said:

In these days, it is doubtful that 
any child may reasonably be expected 
to succeed in life if he is denied 
the opportunity of an education. 
Such a right, where the state has 
undertaken to provide, is a right 
which must be made available to all 
on equal terms.

347 U.S. at 493.
Yet, despite Brown, supra, Asians are 
still being denied equal educational 
opportunities.

In 1971, the U.S. Supreme Court ruled 
in Lau v. Nichols, 414 U.S. 563, 39 L. Ed 
2d 1, 94 S. Ct. 786 (1974), that special 
educational benefits must be provided to 
1,800 Chinese speaking school children 
in San Francisco who were linguistically 
disadvantaged due to their race and



20
culture. In ordering bilingual instruction
pursuant to Title VI of the 1964 Civil
Rights Act, the Court said:

Discrimination is barred which has 
that effect even though no purpose­
ful design is present . . .  It seems 
obvious that the Chinese speaking 
minority receives fewer benefits 
than the English speaking majority 
from the school system which denies 
them a meaningful opportunity to 
participate in the education pro­
gram.

The Supreme Court concluded that "students 
who do not understand English are effect­
ively foreclosed from any meaningful 
education" and that school districts are 
obligated to provide educational programs 
to meet such special needs of its minority 
students. Lau v. Nichols, supra, 414 U.S.
at 566. Asians constitute the largest 
group of students in the Seattle School 
District who do not understand English and 
require special bilingual instruction. In 
designing the desegregation program, the 
Seattle School District has responsibly



21
met these special needs of Asian school
children. Bilingual students have been

20coordinated into the desegration effort
In 1973, in DeFunis v. Odegard, 416 

U.S. 312, 40 L. Ed 2d 164, 94 S. Ct. 1704
(1974), a white student challenged the 
minority admissions program at the Uni­
versity of Washington Law School on the 
claim of "reverse discrimination". At that 
time, Japanese and Chinese Americans were 
not considered minorities by the Law

2 0 In fact, when bilingual students are 
counted, the number of minority students 
being bused is more than a thousand (1,333) 
more than the number of white students. 
Without counting bilingual students, 
approximately 153 more minority students 
than white students are bused. See the 
Seattle Plan For Eliminating Racial Imbal­
ance, Fifth Year Summary Report in Response 
to Community and School Board Members' 
Questions, a report prepared by the Seattle 
School District's Division of Evaluation 
Services attached to a memo from David 
Colwell to Donald Steele, entitled "Facili­
ties Consolidation impacts and Desegrega­
tion Implementation", December 15, 1981.



22
School. Although the case was held to be 
moot, Justice Douglas wrote an opinion 
finding the minority admission program to 
be unconstitutional. But he also said that 
preferential admissions might be sustained 
if its purpose was to remedy past dis­
criminations and noted that:

if that were the standard, the 
current University of Washington 
policy would surely fail, for there 
is no western state which can claim 
that it always treated Japanese and 
Chinese in a fair and even-handed 
manner.

416. U.S. at 31621.
To this very day, Asian Americans are 

still subject to the effects of racially 
segregated school systems. See Guey Hueng 
Lee v. Johnson, 404 U.S. 1215 (1971) (San 
Francisco school system); Soria v. Oxnard

2 1 Shortly after, the U.S. Law School 
changed its minority admissions policy to 
include Japanese and Chinese.



23
School District, 386 F. Supp. 539 (C.D.
Cal. 1970); Crawford v. Board of Education 
of the City of Los Angeles, 17 Cal. 3rd 
280, 94 Cal. Rptr. 531 ( 1976). Although
these case concerned public school dist­
ricts in California, these involved school
districts which had a sizeable Asian

2 2American population . The Seattle School
District has currently an Asian student
population of 7,300, approximately 15.1% of

23the total student population of 48,415 
A vast majority of these Asian Students 
live in Southeast Seattle, an area where 
much of Seattle's minority population

2 2The 1970 U.S. Census data indicates that
110.000 Asian Americans lived in the City 
and County of San Francisco and another
238.000 lived in Los Angeles County.
23See Footnote #3.



24
resides . A recent study conducted
by the Seattle School District indicates
that if students were confined to the
nearest or next nearest school, twenty-six
schools would be racially imbalanced,
almost all of which are located in South-

2 5east Seattle . Nineteen of these schools
. 26are at the elementary level

2 4

The Southeast Seattle area has many 
census tracts which the total minority 
student population of the census tract 
population is above 80%. See Seattle 
Public Schools 1980-1981 Racial Distribu­
tion of Students and Staff, Vol. 1, p. 
108 .
25See Seattle Public Schools, The Seattle Plan For Eliminating Racial Imbalance, 
Fifth Year Summary Report in Response to 
Community and School Board Members' Ques­
tions, p. 8-9, attached as part of a 
December 15, 1981 memo from David Colwell
to Donald Steele entitled "Facilities 
Consolidation Impacts and Desegregation 
Implementation.
26 Ibid



25
In Johnson v. San Francisco United

School District, 339 F. Supp. 1315 (N.E.
Cal. 1971), vacated and remanded on other
grounds, 500 F. 2d 349 (9th Cir. 1974), the
San Francisco public schools were found to
be racially segregated. In an opinion
supporting a plan for desegregation,
Federal District Court Judge Weigel said:

And there are solid reasons for 
supporting the parties in the plans 
for desegregation of all races. 
The multiplicity of racial back­
grounds makes effective desegrega­
tion more, not less, important. All 
who testified on the subject were 
unanimous in pointing out that the 
evils of racism and ethnic intoler­
ance are not limited to black and 
white alone. Those who oppose desegregation, however well inten- 
tioned, would deprive children of 
the most meaningful opportunity to 
know members of different races. 
Opposition to desegregation fosters 
false concepts of racial superiority 
and racial inferiority. And opposi­
tion to desegregation in the element­
ary schools is particularly ill- 
advised. It works to prevent the 
kind of exchange in formative years 
which best inoculates against racial 
hatred. Racial hatred is an adult 
rather than a childhood disease.

339 F. Supp. at 1320.



26
This statement applies with equal 

force to the Seattle Plan. Asian Americans 
have fought hard for their right to equal 
opportunities under the law. The right to 
equal educational opportunity is well 
established. Any attempt to interfere with 
the Seattle desegregation plan, however 
well intentioned, should be weighed against 
the constitutional right to equal educa­
tional opportunity.
C . Initiative 350 Created An Impermis­

sible Racial Classification Which 
Placed Special Burdens On The Attain­
ment Of Policies Favoring Minorities.
A law which differentiates on the 

basis of race, regardless of purported 
motivation, is presumptively invalid and 
can be upheld only upon an extraordinary 
justification. Brown v. Board of Educa­
tion, 347 U.S. 483 (1954). Unless there is 
a compelling state interest which cannot be 
achieved in another way, such a law will be



27
struck down under the Fourteenth Amendment 
of the United States Constitution. The 
district court and the Court of Appeals 
properly relied on Hunter v. Erickson, 393 
U.S. 385 (1969) and Lee v. Nyquist, 318 F. 
Supp. 710 (W.D. N.Y., 1970), aff'd, 402 
U.S. 935 (1971)/ in ruling that Initiative 
350 created invidious racial classifica­
tions unjustified by any compelling state 
interest.

In Hunter v. Erickson, supra, this 
Court held that §137 of the Akron, Ohio 
City Charter violated the Fourteenth 
Amendment. Section 137 prevented the city 
council from implementing any ordinance 
dealing with racial, religious or ancestral 
discrimination in housing without the 
approval of a majority of the voters. The 
Court invalidated that law because it 
created, "an explicitly racial classifica­
tion treating racial housing matters



28
differently from other racial and housing 
matters." Id. at 389. Although seemingly 
neutral on its face, §137 specifically 
singled out one category (anti-discrimina­
tion housing ordinances) and made it much 
harder for the beneficiaries of such 
ordinances (minorities) to get them en­
acted. The reality is that the law's 
impact falls on the minority by placing 
"special burdens" on racial minorities 
within the governmental process. Id. at 
391.

A three-judge court held Hunter dis­
positive of the question presented in Lee 
v. Nyguist, supra. In that case a New 
York statute prohibited state education 
officials and appointed school boards (but 
not elected boards) from assigning students 
to different schools for the purpose of 
achieving racial balance. Hunter, accord­
ing to the court in Lee v. Nyguist, stands



29
for the rule that "the state creates an 
implicit 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.

The New York Statute in Lee v._Nyquist
had the same effect in that it created a 
single exception to the broad supervisory 
powers that the state Commissioner of 
Education exercised over local public 
education. The exception placed burdens on 
the implementation of educational policies 
designed to deal with race on the local 
level, operated in practice as a racial 
classification, was not excused by any 
compelling interest and was, therefore, a 
violation of the Fourteenth Amendment. Id. 
at 718-19. The court noted that the 
statute must fall because it structures the 
internal governmental process in a manner



30
not founded on neutral principals. Id. at 
720. This Court expressed its approval by 
summarily affirming this lower court 
ruling.

Initiative 350 is like the charter 
provision in Hunter and the statute in Lee. 
It creates a racial classification, treat­
ing racial student assignment matters in 
education differently from other student 
assignment matters. It singled out and 
negates one of the many school district 
powers (assigning students to schools other 
than their nearest or next nearest school) 
while allowing school districts to asign 
students beyond their next nearest school 
for almost any other reason. The law's 
impact falls clearly on the minority 
student, by dismantling operative public 
school desegregation programs, preventing 
future local adoption of such programs and 
requiring minority students to initiate



31
expensive lawsuits to enforce their con­
stitutional rights. Inititiative 350 is 
precisely targeted at voluntary local 
adoption of desegregation plans, and thus 
specifically burdens and, in fact, fore­
closes the attainment of important minority 
educational goals through the political 
process. It structures the political
process in a non-neutral manner.

>

If Initiative 350 is allowed to go 
into effect, the schools in Seattle will 
once again be racially imbalanced. This 
will undoubtedly place special burdens on 
racial minorities because their children 
will be returned to racially segregated 
schools and they will be denied access to a 
full and meaningful education. Under a 
voluntary bussing plan which would result 
if 350 is upheld, the burden will fall on 
minority children to transfer to other 
schools as has occurred prior to implement­
ation of the Seattle Plan. (See Siqueland,



32
"Without a Court Order", Madrona Publish­
ers , 1981, p. 21).

History and current events teach us 
that today, unconstitutional laws will 
discriminate in a much more subtle manner 
than in the past because they will be 
designed to withstand legal scrutiny. 
Initiative 350 was drafted specifically to 
destroy Seattle's bussing plan and to 
survive a constitutional challenge. An 
informed reading of its language discloses 
its racially discriminatory purpose and 
intent. The Initiative was proposed to and 
accepted by the electorate as such. [RT 
166-69, 192-93, 203, 275, 462-64, 466, 678, 
738-40, 791-93, 1163, 1169, 1177-78, 1185;
Exs. 38-40; Ex. 41, pp. 62-3, 64; Ex. 43, 
pp. 8-10; Ex 56; Ex. 95, pp. 16-21; Ex. 
130, pp. 3-5.] The district court below 
also recognized this fact. [See District 
Court's Finding of Fact P. 7-9.] Unless



33
this Court reaffirms the constitutional 
infirmities of Initiative 350, an open 
invitation will go out to legislators to 
achieve constitutionally forbidden goals by 
art fully worded statutes. This Court has 
long ruled that a law, though racially 
neutral on its face, will not be consti­
tutionally tolerated if it is an obvious 
pretext for discrimination. Yick Wo. v. 
Hopkins, 118 U.S. 356, (1886).

Because the state has failed to put 
forth any compelling interest for Initia­
tive 350, the Court of Appeals'conclusion 
that it creates an impermissible racial 
classification in violation of the Four­
teenth Amendment to the United States 
Constitution should be affirmed.
D. And Lee V. Nyquist, Supra, Do Not

Control, Initiative 350 Is Invalid
Because It Was Enacted With The Intent
To Discriminate On Racial Grounds
And Therefore Violates The Fourteenth
Amendment Of The United States Con-



34
It is well established that in order 

to challenge state action, such as Initia­
tive 350, on the grounds such action 
results in unconstitutional racial dis­
crimination and is a violation of the Equal 
Protection Clause of the Fourteenth Amend-

i

ment, the challenging party must allege and 
prove the existence of a discriminatory 
intent and not just disproportionate 
impact. Personnel Administrator of Mass­
achusetts v. Fenney, 442 U.S. 256 (1979); 
Village of Arlington Heights v. Metro­
politan Housing Development Corp., 429 U.S. 
252 (1977); Washington v. Davis, 426 U.S. 
229 (1976). This requirement has been 
applied in a school desegregation case. 
Columbia Board of Education v. Penick, 443 
U.S. 449 (1979). However, it is equally 
well established that this Court does 
not intend to vitiate the protection of 
the Fourteenth Amendment by making it 
impossible to satisfy this requirement.



35
Washington v. Davis, supra, and its 

progeny consistently hold that discrimina­
tory intent may be inferred from all the 
surrounding facts and circumstances. 
Washington v. Davis, supra, involved the 
validity of a written test given to police 
officer candidates in the District of 
Columbia. While this Court found the 
plaintiffs had shown a profound discrimina­
tory impact which excluded a high number of 
black candidates, this Court upheld the 
test because the plaintiffs had failed to 
prove a discriminatory intent. This Court 
stated:

This is not to say that the neces­
sary discriminatory racial purpose 
must be express or appear on the 
face of the statute, or that a law's disproportionate impact is irrel­
evant in cases involving Constitu­
tion-based claims of racial dis­
crimination. A statute, otherwise 
neutral on its face, must not be 
applied so as invidiously to dis­
criminate on the basis of race, Yick 
Wo v . Hopkins, 118 U.S. 356, 30 
L.Ed. 220, 65 S.Ct. 1064 (1886).

Id. at 242.



36
This Court proceeded to state:
Necessarily, an invidious discrimin­
atory purpose may often be inferred 
from the totality of the relevant 
facts, including the fact, it is 
true, that the law bears more heavi­
ly on one race than another . . . .
Nevertheless, we have not held 
that a law, neutral on its face and 
serving ends otherwise within the 
power of government to pursue, is 
invalid under the Equal Protection 
Clause simply because it may affect 
a greater proportion of one race 
than of another. Disproportionate 
impact is not irrelevant, but it is 
not the sole touchstone of an 
invidious racial discrimination 
forbidden by the Constitution.

Id. at 242.
Village of Arlington Heights, supra, 

involved a question whether refusal by 
a zoning board to permit construction of 
low-income housing constituted racial 
discrimination. This Court upheld the 
action of the board and reaffirmed the 
requirement of proving discriminatory 
intent. In addition, this Court set forth 
the following examples of direct and



37
circumstantial evidence which could be used 
to show such intent:

1. Disproportionate discriminatory 
impact on one race.

2. The historical background of the 
decision (the sequence of events 
leading to it which include 
departures from normal procedural 
sequences).

3. The legislature or administrative 
history of the action.

429 U.S. at 267.
A more recent discussion by this Court 

on what is "discriminatory purpose" is 
found in Personnel Administrator of Massa­
chusetts v. Feeney, supra. In that case a 
female challenged a Massachusetts law 
giving veterans lifetime preference for 
state employment on the grounds such law 
discriminated on the basis of gender and



38
violated the Fourteenth Amendment. This 
Court found the law not violative of equal 
protection in part because the law did not 
reflect a discriminatory purpose. This 
Court stated:

"Discriminatory purpose," however, 
implies more than intent as volition 
or intent as awareness of conse­
quences (citation omitted). It 
implies that the decisionmaker, in 
this case a state legislature, 
selected or reaffirmed a particular 
course of action at least in part 
"because of, " not merely "in spite 
of," its adverse effects upon an 
identifiable group.

442 U.S. at 279.
A careful reading of Personnel 

Administrator of Massachusetts v. Feeney 
and how lower courts have interpreted that 
case makes it clear that it is not the 
intention of this Court to impose a re­
quirement that the appellees in this case 
and the other parties challenging Initia­
tive 350 show that such Initiative was 
adopted in part "because of" a deliberate



39
purpose to cause a racially discriminatory
impact. Instead, Personnel Administrator
of Massachusetts v. Feeney reaffirms the
proposition in Washington v. Davis that
discriminatory intent may be inferred from
the surrounding facts and circumstances:

This is not to say that the inevita­
bility or forseeabi1ity of con­
sequences of a neutral rule has no 
bearing upon the existence of 
discriminatory intent. Certainly, 
when the adverse consequences of a 
law upon an identifiable group are 
as inevitable as the gender-based 
consequences of ch 39, §23, a strong 
inference that the adverse effects 
were desired can reasonably be 
drawn. (Emphasis added)

Id. at n. 25.
The Fifth Circuit in Lee v. Lee County 

Board of Education, 639 F . 2d 1243 (1981),
interpreted Personnel Administrator of 
Massachusetts v. Feeney to be consistent 
with Washington v. Davis and its progeny. 
In Lee, that court affirmed the district
court's denial of a motion by the United



40
States for interdistrict relief to desegre­
gate a school in part because the record 
failed to establish a racially discrimina­
tory intent by the city. That court 
stated:

Although Feeney makes clear that the 
intent required to support a finding 
of unconstitutional discrimination 
is a species of specific rather than 
general intent, Feeney did not alter 
the decisions in Washington v. 
Davis, supra, or Village of Arling­
ton Heights v. Metropolitan Housing 
Development Corp., 429 U.S. 252, 97
S.Ct. 555, 50 L. Ed.2d 450 (1977),
where the Court noted that a racial­
ly discriminatory intent might 
properly be inferred from circum­
stantial evidence.

Id. at 1268.
Based upon the facts and circumstances 

surrounding Initiative 350, this Initia­
tive, even though a reflection of the 
majority of the people of the State of 
Washington, must be invalidated on the 
grounds that it was enacted in part because 
of impermissible and unconstitutional



41
racial discrimination and it therefore 
violates the Fourteenth Amendment. First 
the disproportionate and negative impact of 
Initiative 350 on Asians and other racial 
minorities is indisputable. The nullifica­
tion by Initiative 350 of appellees' 
desegregation plan will result in dramatic 
increases in school segregation.

Second, the historical background of 
Initiative 350, the sequence of events 
leading to the enactment and the legisla­
tive and administrative history of the 
Initiative make it evident that it was 
intended to nullify the Seattle Plan and 
return the schools to their previous 
segregated state. (See appellees' comp­
laint and memorandum in support of motion 
for preliminary injunction.) Initiative 
3 50 was the final step in a concerted plan 
of opponents of mandatory bussing to 
prohibit this major part of the Seattle 
Plan. Leaders of CiVIC, the prime movers



42
behind Initiative 350, have admitted 
in deposition that this was the intent of 
the measure. (See p. 84 of the deposition 
of Robert Dorse attached as Exhibit C to 
the Affidavit of Michael W. Hoge) . It is 
also evident from the long list of excep­
tions to the prohibitions of Initiative 350 
that the only thing it was intended to 
prevent was reassignment of students to 
promote integration in the schools.

Third, even assuming Initiative 
3 50 is neutral on its face, the inevita­
bility and forseeability of the conse­
quences resulting from its enactment, that 
is the return to segregation in Seattle 
schools, leads one to reasonably infer this 
result was intended. Finally, this Court 
in Village of Arlington Heights v. Metro­
politan Housing Corp. concluded that there 
is no need to show that the discriminatory 
intent was the primary purpose of the 
measure as long as it was a motivating



43
factor, 429 U.S. at 255, and the totality 
of the circumstances related to the promul­
gation and passage of Initiative 350, 
strongly suggests that at least one moti­
vating purpose, if not the dominant 
purpose, of the measure was to halt 
Seattle's desegregation plan.

CONCLUSION
Initiative 350 creates an impermis­

sible racial classification not justified 
by any compelling state interest and should 
be declared unconstitutional. Furthermore, 
the Initiative was enacted with the intent 
to discriminate on racial grounds and 
should on this additional basis be declared 
unconstitutional.

Respectfully submitted,
William J. Bender 
Rodney L . Kawakami 
Gary D. Iwamoto 
Gary Huie 
Benson Wong
Attorneys for 
Amicus Curiae Seattle Chapter Japanese 
American Citizen League