Washington State v. Seattle School District No. 1 Motion for Leave to File Brief and Brief Amicus Curiae

    SUPREME COURT OF THE UNITED STATES, 
October Term, 1981 

No. 81-9

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

MOTION FOR LEAVE TO FILE A BRIEF AS 
AMICUS CURIAE AND BRIEF OF THE NAACP 

LEGAL DEFENSE AND EDUCATIONAL FUND, INC., 
AS AMICUS CURIAE

Jack Greenberg 
James M. Nabrit, III 
Bill Lann Lee*
James S. Liebman 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

Attorneys for NAACP Legal 
defense & Educational Fund, 
as Amicus Curiae

* Counsel of Record



INDEX

Table of Authorities .............  iii
Motion For Leave For NAACP Legal

Defense and Educational Fund,

Page

Inc., To File A Brief
Amicus Curiae ...............  1

Question Presented ...............  6
Brief For the NAACP Legal Defense and Educational Fund, Inc., 

as Amicus Curiae ............  7
Summary of Argument ..............  7
Argument .........................  9

I. Initiative 350 Violates 
The Fourteenth Amendment's 
Most Basic Prohibition By 
Structuring The Political 
Process So That Governmental 
Action Benefiting The Minor­
ity Victims Of School Segre­
gation Is More Difficult To 
Achieve Than Governmental 
Action Benefiting All Other
Citizens ......................  9

A. Racial Classifica­
tions Distorting the
Political Process .........  12
B. Hunter v. Erickson.... 15

i



Page

C. Nyguist v. Lee ........  27
D. Initiative 350 ........  34

II. Racial Integration Of Public Education In Appel­
lee Local Districts, Which 
Initiative 350 Nonneutrally 
Frustrates, Is A Legitimate, 
Indeed Pressing, Political 
Objective of Black Citizens
In Appellee School Districts ... 47

Conclusion .......................  56

•  •
-  l i  -



TABLE OF AUTHORITIES
Cases: Page
Alexander v. Holmes County 

Board of Education, 396 U.S.
19 ( 1969) ......................  3,49

Avery v. Midland County,
390 U.S. 474 ( 1968 ) ............  13

Bollina v. Sharpe,
347 U.S. 499 ( 1954) ............  10

Brown v. Board of Education,
347 U.S. 483 ( 1954) ............  3

Crawford v. Board of Education 
of the City of Los Anqeles,
No. 8 1-38 ...........   23

Citizens Against Mandatory 
Bussinq v. Palmason,
495 P. 2d 657 (Wash. 1972) .......  36,37

Columbus Board of Education 
v. Penick, 443 U.S. 449
(1979) ......................  3,5,23,24

31,54
Cooper v. Aaron, 358 U.S. 1

(1958) ......................  3
Dayton Board of Education v.
Brinkman, 433 U.S. 406(1977) .........................  18

Dunn v. Blumstein,
405 U.S. 330 ( 1972) ............  12

n i



Page

Evans v. Buchanan, 398 
F. Supp. 428 (D. Del.),
aff'd, 423 U.S. 963 (1975) .....  30

Ex parte Virginia, 100 U.S.
339 ( 1 880) .....................  10

Foley v. Connelie, 435 U.S.
291 ( 1 978) .....................  1 1

Green v. County School Board, 391U.S. 430 ( 1968) .............  3
Harper v. Virginia Board of Electors, 383 U.S.

663 ( 1 966) .....................  12
Hunter v. Erickson,393 U.S. 385 ( 1969) ............  passim
In re Griffiths,

413 U.S. 717 ( 1973) ............  1 1
James v. Valtierra,402 U.S. 1 37 ( 1971 ) ............  44
Keyes v. School District No. 1,

413 U.S. 1 89 ( 1 973) .........  3
Lovinq v. Virginia,

388 U.S. 1 ( 1967) ..............  10
Massachusetts Board of 

Retirement v. Murgia,
427 U.S. 307 ( 1976) ............  1 1



McDaniel v. Barresif
402 U.S. 39 ( 1971 ) .............  48

McLauqhlin v. Florida,
379 U.S. 39 ( 1971 ) .............  10

Milliken v. Bradley,
418 U.S. 717 ( 1974) ............  27,35

Mobile v. Bolden,
446 U.S. 55 ( 1980) ........  1 1 , 1 4,22,45

New York Gaslight Club, Inc. v.
Carey, 447 U.S. 54 (1980) .... 5

Nixon v. Herndon,
273 U.S. 536 ( 1927) ...........  1 1,1 2,31

North Carolina State Board 
of Education v. Swann,
402 U.S. 43 ( 1971 ) ............  24,28,49

Nyguist v. Lee. 401 U.S. 935 aff 'g, 318 F. Supp. 710
(W.D.N.Y. 1970) ................  passim

Personnel Administrator v.Feeney, 442 U.S. 256
( 1979) .........................  22,44

Regents of the University of 
California v. Bakke, 438
U.S. 265 ( 1978) ................  47

Reynolds v. Sims, 377 U.S.533 ( 1964) .....................  13

Page

v



Page

San Antonio School Dist. v.
Rodriguez, 411 U.S. 1 
( 1973 ) ...................... ... 11,25,34

Seattle School Dist. No. 1 
v. Washington, 473 F. Supp.996 (W.D. Wash. 1979), aff'd, 
633 F.2d 1338 (9th Cir.1980) ....................... .. 36,37,40, 

41,42
Slaughterhouse Cases,83 U.S. 36 ( 1 973) ........... . 10
State ex rel. Lukens v.Spokane School District 81,

147 Wash. 467 ( 1928) ........ . 36
Strauder v. West Virginia,

100 U.S. 303 ( 1880) ......... . 10
Swann v. Charlotte-Mecklenburg 

Board of Education, 402 U.S.
1 (1971) .................... .. 3,28,41, 48,49

Takahashi v. Fish and Game
Comm'n, 334 U.S. 410 (1948) ... 11

United States v. Carolene Products Co., 304 U.S.
144 ( 1 938) .............. .... 10,25

Village of Arlington Heights 
v. Metropolitan Housing 
Authority, 429 U.S. 252 (1977) .......................

- vi



Page

Washington v. Davis, 426 U.S.
229 ( 1976) .....................  44

White v. Regester, 412 U.S.
755 ( 1973) .....................  1 1,1 2

Wright v. Council of the 
City of Emporia, 407 U.S.451 ( 1972) .....................  23,24

Other Authorities:
Buses: Backbone of Urban Transit,The American City, Dec. 1974 .... 50
120 Cong. Rec. 8757 ( 1974) ........ 50
Davis, Bussing, in 2 R. Crain, 

et al., Southern Schools: An 
Evaluation of the Emergency 
School Assistance Program and 
of School Desegregation (1973)... 51

Department of Transportation,
Transportation of School
Children (1972) ................  50

G. Gunther, Cases and Materials 
on Constitutional Law
(9th Ed. 1975) .................  26

W. Hawley, et al., 1 Assessment 
of Current Knowledge About The Effectiveness of School 
Desegregation Strategies,
Strategies for Effective Desegregation: A Synthesis
of Findings (1981) ....

- vii -
52,53,54



Page

Hawley, "The False Premises of 
Anti-Busing Legislation," 
testimony before the Subcom. 
on Separation of Powers,
Sen. Com. on the Judiciary,97th Cong., 1st Sess.
(September 30, 1981) ......... 52,54,55

Metropolitan Applied Research 
Center, Busing Task Force 
Fact Book ( 1 972) .............. . 49

The New York Times,
Dec. 4 , 1 980 .................. . 50

National Association of Motor 
Bus Owners, Bus Facts (39th 
ed. 1 972) ..................... . 50

G. Orfield, Must We Bus? (1978) ... 49,50
C. Rossell, et al., 5 Assessment 
of Current Knowledge About the Effectiveness of School 
Desegregation Strategies,
A Review of the Empirical 
Research on Desegregation: 
Community Response, Race Relations, Academic Achieve­
ment and Resegregation (1981) .. 53,54,55

U.S. Commission on Civil Rights, 
Public Knowledge and Busing 
Opposition ( 1973) ............. . 50

Zoloth, The Impact of Busing on 
Student Achievement, 7 Growth 
& Change 45 (July 1976) ....... 51

- viii



IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1981
No. 81-9

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

MOTION FOR LEAVE FOR THE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC., 

TO FILE A BRIEF AMICUS CURIAE

The NAACP Legal Defense and Educa­
tional Fund, Inc., hereby respectfully 
moves for leave to file the attached brief 
amicus curiae in this case. Counsel for 
appellees, the United States, and the 
Seattle intervenor-plaintiffs-appellees



2

have consented to the filing of the at­
tached brief. The consent of the attorney 
for appellants was requested, but refused, 
thus necessitating this moion.

1. The NAACP Legal Defense and 
Educational Fund, Inc., (hereinafter "LDF") 
is a non-profit corporation established 
under the laws of the State of New York. 
It was formed to assist black persons to 
secure their constitutional rights by the 
prosecution of lawsuits. Its charter 
declares that its purposes include render­
ing legal services gratuitously to black 
persons suffering injustice by reason of 
racial discrimination. LDF is independent 
of other organizations and is supported by 
contributions from the public.

2. For many years attorneys of the 
Legal Defense Fund have represented par­
ties in litigation before this Court and



3

the lower courts involving a variety of 
race discrimination issues, including 
lawsuits brought on behalf of black parents 
and students to desegregate public schools. 
E.g., Brown v. Board of Education, 347 U.S. 
4 8 3 ( 1 9 5 4.)? Cooper v. Aaron, 358 U.S. 1
(1958); Green v. County School Board, 391
U.S. 430 (1968); Alexander v. Holmes County 
Board of Education, 396 U.S. 19 (1969);
Swann v. Charlotte-Mecklenburg Board of Ed­
ucation , 402 U.S. 1 (1971); Keyes v. School 
District No. 1, 413 U.S. 189 ( 1 973). The 
Legal Defense Fund also has participated as 
amicus curiae in numerous desegregation 
cases in this Court. E.g. , Columbus Board 
of Education v. Penick, 443 U.S. 449
(1979); Regents of the University of Cali­
fornia v. Bakke, 438 U.S. 265 (1978).



4

3. Amicus also represents black 
parents and school children in numerous 
pending lower court cases. Those parents 
and children have a particular interest and 
concern in encouraging local school dis­
tricts to undertake voluntary "affirmative 
action" programs to desegregate their 
student bodies and facilities without 
undergoing full-blown litigation, which is 
often taxing, time-consuming and expensive. 
LDF also has an interest in safeguarding 
the right of black parents and other black 
citizens, as exercised here, to seek 
redress of grievances and to obtain favor­
able governmental action through the 
political process on the same basis as all 
other citizens. As the attached brief 
points out, amicus believes that both these 
interests will be imperiled if Initivive 
350 is upheld.



5

4. Amicus respectfully submits that 
its long experience in school desegregation 
matters and its familiarity with the 
social-science data on the success of de­
segregation remedies may assist the Court

*/in resolving this matter.“

jJV The sole objection of appellants' counsel to LDF's participation as amicus —  
that LDF's perspective is represented here 
by the Seattle, Washington Branch of the National Association for the Advancement of 
Colored People (NAACP), one of several 
plaintiff-intervenors -- is mistaken. 
Although originally founded by the NAACP, 
LDF has been a wholly separate organization 
from the NAACP for over 20 years, with a separate Board of Directors, program of 
operations, staff, office and budget. 
Moreover, while the NAACP is participating 
in this case solely on behalf of its members in Seattle, Washington, LDF seeks to parti­
cipate in order to represent the interests 
of its clients in school desegregation 
litigation throughout the country. For 
these reasons, LDF has been permitted to 
participate as amicus curiae in cases in 
which the NAACP was also amicus, e.g., 
Regents of the University of California v. 
Bakke , supra, and Tn cases Tn wh i ch 
NAACP attorneys represented one of the 
parties, e.g., Columbus Board of Education 
v. Penick, supra? New York Gaslight Club, Inc, v. Carey, 447 U.S. 54 (1980)."



6

WHEREFORE, for the foregoing reasons, 
amicus curiae NAACP Legal Defense and Edu­
cational Fund, Inc. prays that the attached 
brief be permitted to be filed.

Respectfully submitted,

JACK GREENBERG 
JAMES M. NABRIT, III 
BILL LANN LEE*
JAMES S. LIEBMAN 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212)586-8397

*Counsel of Record
Attorneys for NAACP Legal 
Defense & Educational Fund, 
as Amicus Curiae

QUESTION PRESENTED
Does Initiative 350 violate the Four­

teenth Amendment by structuring the politi­
cal process of the State of Washington so 
that governmental action benefiting the 
minority victims of school segregation is 
more difficult to achieve than governmental 
action benefiting all other citizens?



7

IN THE
SUPREME COURT OF THE UNITED STATES

October Term, 1981 
No. 81-9

STATE OF WASHINGTON, et al.,
Appellants,

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

Appellees.

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

BRIEF OF THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AS AMICUS CURIAE

SUMMARY OF ARGUMENT
Amicus respectfully submits that this 

appeal is governed by the fundamental Four­
teenth Amendment principle that a state 
must maintain political neutrality among 
the races and may not burden minority-group 
political participation by requiring racial



8

minorities to utilize more onerous means 
than all other citizens to obtain govern­
mental action on their behalves. Hunter 
v, Erickson, 393 U.S. 385 (1969); Nyguist
v. Lee, 401 U.S. 935 ( 1 97 1 ), af f 'g 318 
F. Supp. 710 (W.D.N.Y. 1 970 ). The fatal
constitutional defect of Initiative 350 is 
that it is a "statute[] which structured] 
the internal governmental process" in such 
a way as to "make[] it more difficult for 
racial ... minorities" than for all other 
citizens to "further their political aims." 
Hunter v, Erickson, supra, 393 U.S. at 393 
(Harlan, J. , concurring). Because Hunter 
and Nyguist v, Lee are dispositive, we 
limit Part I of this brief to a discussion 
of the application here of the principle 
which animates those cases.

Part II briefly discusses the recent 
social scientific data establishing that 
desegregation of public schools is a



9

legitimate, indeed pressing, political 
goal of minorities, which has succeeded 
over the past fifteen years in drama­
tically improving academic achievement 
among blacks and race relations among all 
students.

ARGUMENT

I

INITIATIVE 350 VIOLATES THE FOUR­
TEENTH AMENDMENT'S MOST BASIC 
PROHIBITION BY STRUCTURING THE 
POLITICAL PROCESS SO THAT GOVERN­
MENTAL ACTION BENEFITING THE MINORITY VICTIMS OF SCHOOL SEGREGATION IS MORE 
DIFFICULT TO ACHIEVE THAN GOVERN­
MENTAL ACTION BENEFITING ALL OTHER 
CITIZENS

In its most fundamental aspect, the 
Equal Protection Clause of the Fourteenth 
Amendment forbids the States from passing 
laws, not born of a compelling necessity, 
that classify blacks or other racial 
minorities differently, and less ad-



10

vantageously, than all other citizens, 
Slaughterhouse Cases , 83 LJ.S. 36, 71
(1873); Strauder v. West Virginia, 100
U.S. 303, 307-08 (1880); Ex parte Vir­
g inia , 100 U.S. 339, 344-45 (1880);
Bolling v. Sharpe, 3 4*7 U.S. 499 (1954);
McLaughlin v. Florida, 379 U.S. 184, 192
(1964); Loving v. Virginia, 388 U.S. 1, 10
(1967). This deep mistrust of legislative 
classifications singling out blacks or 
other racial minorities derives from a re­
cognition that "prejudice against discrete 
and insular minorities" in this country 
historically has been "a special condi- 
dition, which tends seriously to curtail 
the operation of those political pro­
cesses ordinarily to be relied upon to 
protect minorities ...." United States 
v. Carolene Products Co., 304 U.S. 144,
152 n.4 (1938). Because the Clause was
designed as an antidote to the "position



of political powerlessness ... [in] the
majoritarian political process" to which
blacks and other racial minorities have
been relegated in this country, San
Antonio School Dist, v. Rodriquez, 411

1/U.S. 1 , 28 ( 1973), its prohibitory force
falls heavily, perhaps most heavily, on 
"laws which define the structure of poli­
tical institutions" so as to classify 
racial minorities less advantageously than 
all other citizens. Hunter v. Erickson,
393 U.S. 385, 393 ( 1969 ) (Harlan, J. , con-
curring); see Mobile v. Bolden, 446 U.S.
55, 83-84 (1980) (Stevens, J. , concur-
ring); see e . g . , White v. Regester, 412
U.S. 755 (1973); Nixon v. Herndon, 273
U.S. 536 (1927).

V  See Foley v. Connelie, 435 U.S. 291, 
294 (1978); Massachusetts Board of Retire­
ment v. Murgia, 427 U.S. 307, 313 ( 1 976); 
In re Griffiths, 413 U.S. 717, 721 ( 1973); 
Takahashi v. Fish and Game Comm'n, 334 U.S. 410, 420 (1948).



12

A. Racial Classifications Distorting 
the Political Process

Forbidden racial classifications im­
pinging on the political process include, 
for example, the simple denial to blacks 
and other racial minorities of the fran­
chise available to all other citizens. Cf. 
Dunn v. Blumstein, 405 U.S. 330 (1972);
Harper v. Virginia Board of Electors, 383

2/U.S. 663 (1966).“
Similarly, it is fundamental to the 

Equal Protection Clause that the States 
may not unfavorably single out blacks or 
other minorities in the political arena 
by weighting their votes less heavily than

2 /  Such a classification is no less obnoxious to the Fourteenth Amendment 
because it disadvantages only some mem­
bers of a racial minority —  for example, by depriving only blacks who wish to vote 
in the Democratic Party primary of the 
ability to do so. E.g, White v. Regester, 
supra; Nixon v. Herndon, supra.



13

the votes of all other persons —  for 
example, by affording blacks only one 
representative for every 10,000 citizens, 
while affording others one representative 
for every 5,000 citizens. Cf. Avery v. 
Midland County, 390 U.S. 474 (1968).“

Finally, even where blacks and other 
minorities are allowed the franchise and 
representation equal to that afforded 
other citizens, this Court has recognized 
that the States offend the Fourteenth 
Amendment's fundamental requirement of 
political neutrality among the races when 
they pass "statutes which structure the 
internal governmental process" so as to 
"make[] it more difficult for racial and 
religious minorities [than for the rest of

3/ Again, such a classification violates the Fourteenth Amendment even if it does 
not victimize all blacks but only, for 
example, blacks living in urban areas. 
Cf. Reynolds v, Sims, 377 U.S. 533 (1964).



14

the citizenry] to further their political 
aims." Hunter v. Erickson, supra, 393 U.S. 
at 393 (Harlan, J. , concurring) (emphasis 
added). For minority citizens are no less 
politically powerless with the vote than 
without it if the State has arranged the 
internal mechanics of government so that 
legitimate state action benefiting racial 
minorities is structurally more difficult 
to achieve than state action benefiting 
other constituencies. See Mobile v. Bol­
den , supra, 446 U.S. at 83-84 (Stevens, J., 
concurring).

In this light, for example, a state 
law requiring a two-thirds majority for 
legislation benefiting blacks, where a 
simple majority suffices for all other 
legislation, would clearly fall afoul of 
the Fourteenth Amendment. So, too, would 
a state law singling out only some blacks, 
or some substantive area of governmental



15

benefit of particular interest to some 
blacks, for disadvantageous treatment in 
the political process. Such was the hold­
ing of Hunter v. Erickson, supra.

B. Hunter v. Erickson
Hunter the municipal lawmaking 

process in Akron, Ohio had in the past 
been structured so that the City Council 
could adopt any municipal ordinance re­
lating to a legitimate goal of local 
government —  including, for example, the 
regulation of real-property transactions 
—  by a majority vote, subject to a citi­
zens' veto if (i) 10 percent of the elec­
torate signed a petition calling for a 
referendum on the ordinance, and (ii) a 
majority of the City's electorate there­
after disapproved the ordinance in a 
general election. See 393 U.S. at 387? 
jLd. at 393-94 (Harlan, J. , concurring).



16

Hunter involved a constitutional
j ..................... - '■ ■■ " ■ i

/

challenge to a city-charter amendment, 
legislated by referendum, that partially 
rearranged this structure. Under the 
amendment, " [a]ny ordinance which regu­
late [d] the use, sale [or] lease ... of 
real property of any kind ... on the basis 
of race, color, religion, national origin 
or ancestry" not only had to secure the 
votes of a majority of the City Council, 
but also had to "be approved by a majority 
of the electors voting on the question at 
a regular or general election . . . ." _Id. at 
387. All other municipal laws -- i.e ., 
ordinances not regulating the sale or 
lease of real property, and those regu­
lating the sale or lease of real property 
on some basis other than race —  remained 
subject to the preexisting, less onerous 
legislative process.



17

The Court held that the charter 
amendment violated the Fourteenth Amend­
ment. In so doing, both Justice White for 
the Court and Justice Harlan in concur­
rence noted that the charter amendment (i) 
was designed to rescind a fair-housing 
ordinance passed by the City Council in 
order to relieve racial and religious 
minorities of housing discrimination, and 
(ii) served to make the passage of muni­
cipal legislation by the City Council more 
difficult in the future by placing more 
power directly in the hands of the elec­
torate, and less in the hands of the city 
government. But, as Justice Harlan's con­
currence makes explicit, it was neither
of these facts alone that rendered the

4/amendment unconstitutional.- Rather, the

4/ In the first place, that blacks and 
religious minorities had utilized the



18

law was unconstitutional because, by way

4/ continued
pre-existing political process to benefit themselves by extending their statutory 
civil rights beyond what federal law re­
quired did not render unconstitutional 
the subsequent rescission of that action 
through exercise of the same general 
political process:

Statutes ... which are grounded 
upon general democratic prin­
ciple, do not violate the Equal 
Protection Clause simply because 
they occasionally operate to 
disadvantage Negro political 
interests. If a governmental 
institution is to be fair, one 
group cannot always be expected 
to win. If the [Akron City] 
Council's fair housing legis­
lation were defeated at a refer­
endum, Negroes would undoubtedly 
lose an important political 
battle, but they would not thereby 
be denied equal protection.

Hunter v. Erickson, supra, 393 U.S. at 394 
(Harlan, J. , concurring). Accord, id. at 
390 n.5 (majority opinion). See Dayton 
Board of Education v. Brinkman, 433 U.S. 
406, 413-14 (1977) (school board's res­
cission of a prior board's resolution



19

of a nonneutral subject-matter classifica­
tion, it required minorities seeking 
legislative protection from housing dis­
crimination to surmount a referendum 
hurdle that stood in the way of no other

4/ continued
initiating affirmative action to undo de? 
facto segregation does not by itseFf 
violate the Fourteenth Amendment).

Similarly, were a state or local 
government to organize itself so that legislation, or even some racially neutral 
species of legislation -- say that regu­
lating all real estate transactions —  is always difficult to pass, such a govern­
mental structure would not necessarily 
violate the Constitution even though it 
might have the effect of hampering efforts 
by blacks to pass fair-housing legislation. 
Such a rule

obviously does not have the 
purpose of protecting one par­
ticular group to the detri­
ment -of all others. It will 
sometimes operate in favor of 
one faction, sometimes in favor of another.

Hunter v. Erickson, 393 U.S. at 394 (Harlan. 
J . , concurring).



20

general, or even housing-related, legis-
5/lation.

5/ Notably, the Akron law struck down in 
Hunter was facially neutral, since it sub­
jected ordinances regulating real estate 
transactions "on the basis of race" to the 
same before-the-fact referendum require­
ment whether they benefited whites or 
blacks. The Court concluded, however, 
that the law's facial neutrality was a 
transparent disguise for a nonneutral 
classification drawn purely and clearly 
along racial lines:

[AJlthough 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.
The majority needs no protection 
against discrimination and if it did, a referendum might be 
bothersome but no more than 
that. Like the law requiring 
specification of candidates' 
race on the ballot, Anderson v. 
Martin, 375 U.S. 399 (1964),
[the Akron charter amendment] 
places special burdens on racial 
minorities within the govern­
mental process. This is no more 
permissible than denying them 
the vote on an equal basis with others. The preamble to the 
open housinq legislation which 
was suspended by [the charter 
amendment] ... recited that 
the population of Akron consists



Because "the city of Akron ha[d] not 
attempted to allocate governmental power

5/ continued
of "people of different race, 
color, religion, ancestry or 
national origin, many of whom live in circumscribed and segre­
gated areas, under substandard, 
unhealthful, unsafe, unsanitary and overcrowded conditions, 
because of discrimination in the 
sale, lease, rental and finan­cing of housing." Such was 
the situation in Akron. It is 
against this background that the 
referendum required by [the 
charter amendment] ... must be 
assessed.

Hunter v. Erickson, supra, 393 U.S. at 391 
(citations omitted).

Since the classification covertly 
drawn by the law was based upon race (as well as ethnicity and religion) alone, and 
was not justified by a compelling neces­
sity, the Court concluded that it violated 
the Equal Protection Clause without refer­
ence to the Akron electorate's motivation 
for drawing it. Id. at 389 ("we need not 
rest on [the Court's invidious-purpose 
cases] to decide this case. Here, unlike 
[in those cases] , there was an explicitly racial classification treating racial
housing matters different from other racial and housing matters")? _id. at 395 
(Harlan, J., concurring). As the Court



22

on the basis of any general principle," 
Hunter v. Erickson, supra, 393 U.S. at 394
(Harlan, J., concurring), or to provide 
"a political structure that treats all 
individuals as equals," Mobile v. Bolden, 
supra, 446 U.S. at 84 (Stevens, J., con­
curring), but instead passed "a provision 
that ha[d] the clear purpose of making it 
more difficult for certain racial and 
religious minorities to achieve legisla­
tion that is in their interest," the 
charter amendment violated the Fourteenth 
Amendment in the absence of a compelling 
justification. Hunter v.Erickson, 3 9 3
U.S. at 394 (Harlan, J., concurring).

5/ continued
subsequently reiterated in Personnel Ad­
ministrator v. Feeney, 442 U.S. 256, 274 
(1979), it is only "[i]f the classifica­tion itself, covert or overt, is not based 
upon [race]" that the courts must reach 
"the second question ... whether the adverse eFFect reflects invidious [race-] 
based discrimination" (emphasis added).



23

Hunter established that, while mem­
bers of the political majority are free 
to (i) utilize governmental processes 
organized along a "general principle" to
rescind state action benefiting racial

6/minorities, and (ii) to subject them­
selves and all others, including racial

6/  Of course, the invidiously motivated 
rescission of a prior benefit to minor­ities does violate the Constitution. Such 
is the case of Proposition 1 in California. See Crawford v. Board of Education of
the City of Los Angeles , N o . 8 1-38.

Similarly, state and local govern­ments guilty of prior racial discrimina­
tion have a continuing affirmative duty to remedy its consequences and accordingly 
are not constitutionally free to withdraw 
rights or benefits serving that remedial 
purpose. E.g. , Columbus Board of Educa­
tion v. PenlcET, 443 U.S. 449, 459 ( 1979); Wright v. Council of the City of Emporia, 407 U.S. 451 ( 1 ) .  In advance of Phase II of the present litigation, we assume 
for purposes of argument that neither the State of Washington, nor any of the other 
municipal governments involved, is guilty of prior racial discrimination.

Notably, a finding that Initiative
350 is unconstitutional would probably remove any need For Phase II, since



24

minorities, to an arduous process of 
securing legislation or other governmental 
action beneficial to themselves, including 
by rearranging governmental power so that 
more of it resides at one level (e . g . , 
with the electorate) and less at another 
(e.g. , with local governmental officials), 
members of the majority may not pass a law 
depriving racial minorities of the bene­
fits of the political process by subject­
ing minorities, but not themselves , 
to structural or other political dis­
abilities. Such a law is not "grounded in

6/  continued
Seattle's voluntarily adopted desegrega­
tion plan moots any need for court-ordered 
measures. On the other hand, under Penick 
and Wright, supra, Initiative 350 cannot 
finally be adjudged constitutional until 
after Phase II determines whether (i) the 
State of Washington or Seattle is under a 
continuing duty to desegregate the schools 
of Seattle, and (ii) whether the Initia­
tive interferes with that duty. See North Carolina State Board of Education v. Swann, 
402 U.S. 43 (1971).



25

in neutral principle." Hunter v, Erickson, 
393 U.S. at 395 (Harlan, J. , concurring). 
By dividing the political process along 
racial lines, it cements into the po­
litical structure of the State the same 
"special condition" —  i.e., a "prejudice 
against discrete and insular minorities 
... which tends to curtail the operation 
of the political process ordinarily to be 
relied upon to protect minorities," United 
States v. Carolene Products Co., supra, 
304 U.S. at 152 n.4 —  whose existence 
justifies the Fourteenth Amendment's 
"extraordinary protection" of blacks and 
other minorities "from the majoritarian 
political process." San Antonio School 
Dist. v. Rodriquez, supra, 411 U.S. at
28.

The requirement that state political 
processes be racially neutral is no 
Fourteenth Amendment fellow traveler. It



26

is compelled by the same "basic prin­
ciples," Hunter v. Erickson, 393 U.S. at 
396 (Harlan, J., concurring), lying at the 
"core of the Fourteenth Amendment," icL at 
391 (majority opinion), that demand that 
racial minorities be afforded the same 
right to vote, and the same level of 
political representation, as all other 
citizens. See G. GUNTHER, CASES AND 
MATERIALS ON CONSTITUTIONAL LAW 691-707 
(9th Ed. 1975). Whatever other goals the 
Equal Protection Clause is designed to 
achieve, at the very least it demands "the 
prevention of meaningful and unjustified 
official distinctions based on race," and 
particularly those distinctions disadvan­
taging racial minorities in the political 
process. Hunter v. Erickson, supra, 393
U.S at 391.



71

c. Nyquist v. Lee
In Nyqu i s t v ,. Lee , 40 1 U.S. 935
), aff'g 318 F. Supp. 710 (W.D. N.Y.

1970), the Court reaffirmed these prin­
ciples in a context involving the uneven, 
subject-matter-specific realignment of 
political power —  not, as in Hunter, 
between local municipal officials and the 
electorate, but between state and local 
public-school officials.

In New York (unlike in most American 
states, see Milliken v. Bradley, 418 U.S. 
717, 742 & n. 20 ( 1974)), authority over
the public schools largely belongs to 
state, rather than local, education 
officials. Thus, the Board of Regents of 
the University of the State of New York, 
and its chief executive officer, the 
Commissioner of Education, have long had 
"the authority to order local school 
boards to act in accordance with state



28

educational policies formulated by the
Board of Regents." Lee v. Nyquist, 318
F.Supp. at 719. As in Hunter, with regard
to housing in Akron, the racial minorities
before the Court in Lee had succeeded in
the past in convincing these officials to
adopt "a policy of eradicating dhe facto
segregation" in the public schools of New

7/York. Ld. at 716. Despite "considerable 
local resistance," the Regents and Commis­
sioner of Education enforced this policy 
by ordering local school boards to re­
assign students to assure racial balance 
in the schools. Id.

!_ / "[SJchool authorities have wide dis­cretion in formulating school policy, and 
... as a matter of educational policy ... may well conclude that some kind of racial 
balance in the schools is desirable quite 
apart from any constitutional require­
ments." North Carolina Board of Education 
v. Swann, 402 U.S. 31, 45 (1971); accord, 
Swann v. Charlotte-Mecklenburg Board of 
Education, 402 U.S. 1, 16 (1971).



29

The opponents of mandatory desegrega­
tion in New York secured legislation res­
cinding such orders. As in Hunter, how­
ever, this goal was not accomplished by 
simply reversing the same political pro­
cess that minorities had previously used 
to secure state-imposed anti-segregative 
measures. Nor was it accomplished by 
generally rearranging the political 
process to make action by state education 
officials, including action beneficial to 
the victims of de facto segregation, more 
difficult to achieve, for instance by 
forcing state officials generally to share 
authority with local ones.

Instead, as in Hunter, the opponents 
of state-mandated desegregation adopted a 
subject-matter-specific law providing that 
any action regarding student assignment 
"on account of race, creed, color or



30

national origin" would require, in addi­
tion to the approval of state officials, 
"the express approval of a [local] board 
of education having jurisdiction, a
majority of the members of such board

8/having been elected Lee v.

8/ As in Hunter, the law struck down in 
Lee on its face was racially neutral, 
since race-conscious reassignment of 
students to benefit whites was subjected 
to the same special hurdles as reassign­
ment to benefit blacks. However, as in Hunter, see note 5, supra, the Lee Court 
recognized, given the statute's genesis in "local resistance" to past integrative 
student-assignment plans, that the statute effectively embodied an "explicitly racial 
classification" affording the educational 
interests of the black victims of de_ facto 
segregation less favorable treatment than 
the educational interests of all other 
citizens. Lee v. Nyguist, supra, 318 
F. Supp. at 718. As in Hunter, the law 
was accordingly held unconstitutional 
irrespective of the motivation of its 
proponents. Id.

In view of Lee, and the other cases 
applying Hunter Tin school-segregation 
contexts, e.g., Evans v. Buchanan, 393 
F. Supp. 428, 440-41 (D .Del.)(3-judge 
court), aff'd, 423 U.S. 963 ( 1 975)(citing 
cases), the Government's suggestion that



Nyguist, supra, 318 F.Supp. at 712. While 
giving local officials authority over this

8 / continued
the Fourteenth Amendment prohibition 
enunciated in Hunter is limited to non­
neutral laws d i s couraging efforts to 
end de facto housing segregation, and does 
not apply to nonneutral laws discouraging 
efforts to end c[e facto school segrega­
tion, is ludicrous. E.g ., Brief of the United States, at 17-18. See generally 
Columbus Board of Education v. Penick, 443 
U.S. 449 , 465 n. 1 3 ( 1 979 )(citing cases) 
(noting the hand-in-glove relationship 
between housing and school segregation).

Indeed, the characteristic of efforts to end de facto school segregation on 
which the Government relies to distinguish this case from Hunter — i.e ., that some 
minorities may not be benefited by such 
measures, Brief of the United States, at 
17-18 —  applies equally in the housing 
context in Hunter. However, that not all 
minorities support open housing or in­tegrated schooling does not undermine the 
conclusion in Hunter, Lee and below that 
a legislative classification burdening 
such supporters, but no other citizens, is 
unconstitutional because those whom it 
does disadvantage are minorities. Other­wise, for example, the Court's conclusion 
in Nixon v. Herndon, supra, that a "white 
Democratic primary" law unconstitutionally 
disadvantages blacks would be undermined 
by the fact that many blacks are Repub­
licans, and have no desire to vote in the 
Democratic primary. See notes 2, 3, supra.



32

one aspect of educational policy— -- 
of special interest to the racial minority 
victims of <3e facto segregation —  the law 
left the authority of state officials in­
tact as to all other educational matters, 
including all other student-assignment 
matters.

As in Hunter, the Court in Lee found 
this law unconstitutional under the 
Fourteenth Amendment because the specific 
rearrangement of the political system 
chosen to accomplish the present res­
cission and future discouragement of

9 /

9/  The law struck down in Lee actually 
realigned authority over student assign­ment to alleviate de facto segregation in 
two ways. In school districts governed by 
an elected school board, final authority 
rested with that board. In districts governed by an appointed school board, 
however, the law withdrew the authority to 
assign students to alleviate segregation 
from all (i.e. , state and local) education 
officials, leaving it exclusively in the 
hands of the state legislature. See Lee v. 
Nyquist , supra, 318 F. Supp. at 719.



33

civil-riqhts-oriented benefits previously 
conferred on minorities was not racially 
neutral:

[The statute] singles out for different treatment all plans 
which have as their purpose 
the assignment of students in 
order to alleviate racial im­
balance. The Commissioner and 
local appointed officials [see 
note 9, supra] are prohibited from acting in these matters 
only where racial criteria are 
involved. The statute thus 
creates a clearly racial classi­
fication, treating educational 
matters involving racial criteria 
differently from other educa­
tional matters and making it 
more difficult to deal with 
racial imbalance in the public 
schools. We can conceive of no 
more compelling case for the 
application of the Hunter prin­
ciple.

318 F. Supp. at 719 (Hays, J.), aff 'd, 401 
U.S. 935 (1971).

Lee, like Hunter, lies at the "core"
of the Fourteenth Amendment's "protection 
[of minorities] from the majoritarian



34

political process." San Antonio School 
Dist. v. Rodriquez, supra, 411 U.S. at 28. 
It too strikes down an effort by members 
of the majority to structure the political 
process so that the black victims of 
segregation are once again relegated to 
the historical position of "political 
powerlessness" vis a vis all other citi­
zens that the Equal Protection Clause was 
particularly designed to remedy. Id.

D. Initiative 350
Initiative 350 is a mirror image of 

the law found unconstitutional in Nyguist 
v. Lee. Like that law, Initiative 350 was 
legislated in direct response to a plan 
(in this case "The Seattle Plan") of 
"mandatory" student reassignment to
achieve greater interracial contact in the

J_0 /schools, only here the nonneutral

10/ "Mandatory" is a misnomer. For the 
citizens of Seattle, through their elected



35

realignment of power runs from the local
to the State level, rather than from the

1 1/State to the local level, as in Lee.
In the State of Washington, as in 

most American jurisdictions (excepting 
New York), see Milliken v. Bradley, supra, 
418 U.S. at 742 & n. 20, the authority to

1 0/ continued
representatives on the school board of 
that district, voluntarily chose to re­
assign students in order to achieve a 
greater degree of racial balance. The 
mandate, that is, came not from a federal 
court or other agency not directly res­
ponsible to the citizens of Seattle, but 
from those citizens themselves. The term 
is accurate only in the sense that, as in 
virtually every public school system in 
the country, the student assignment plan 
in Seattle requires that students living 
in specified areas attend specified 
schools, rather than allowing each student 
voluntarily to choose the school he or 
she attends.
11/ The law in Lee realigned the politi­
cal process in some districts in New York 
by removing authority from education offi­
cials generally and giving it to the State 
legislature. See note 9, supra. To this 
extent, Initiative 350 is an exact, rather 
than mirror, image of the law struck down 
in Lee.



36

operate the public schools and, specific­
ally, to assign students to particular 
facilities, resides almost exclusively 
in local school boards. "The law [of 
Washington] has plainly vested the board 
of directors of school districts such as 
this with discretionary powers in such 
matters." State ex rel. Lukens v. Spokane 
School District 81 , 147 Wash. 467, 
474, 266 P. 189, 191 (1928). See Seattle 
School Dist. No. 1 v, Washington, 473 F. 
Supp. 996, 1010 (W.D. Wash. 1979) (Finding 
of Fact 8.2). As the Supreme Court of 
Washington has expressly held, the Seattle 
school board was free to adopt a mandatory 
integration program such as The Seattle 
Plan in the proper exercise of its broad 
discretionary power over student assign­
ment. See Citizens Against Mandatory
Bussing v. Palmason, 495 P.2d 657, 6 6 6



37
12/(Wash. 1972).—

Although the Seattle Plan encountered 
opposition, its opponents did not seek 
to rescind the Plan through the pre-exist­
ing political process. Instead, they found
it easier to rearrange that process through

13/adoption of Initiative 350. 4 7 3 p. supp.
at 1006-07 (Findings of Fact 6.3, 7.1-7.5).

12/ In Palmason, the Supreme Court of 
Washington held, prior to the enactment of 
Initiative 350, that local school boards 
in Washington have almost plenary "discre­
tionary power" over student assignments 
within their districts, subject only to 
judicial review to determine if such as­signments "violate some fundamental right 
of the party challenging them." 495 P.2d 
at 660 & nn.3, 4. The Court concluded that a predecessor of "The Seattle Plan" 
violated no such right. 1̂ 3. at 662-63.
13/ Previous attempts by opponents of 
desegregation to recall the pro-integration 
members of the Seattle school board 
had failed. 473 F. Supp. at 1006 (Finding 
of Fact 6.3), aff'd, 633 F.2d 1338, 1346
(9th Cir. 1980).



38

As in Hunter and Lee, however, the Wash­
ington voters who adopted the Initiative 
did not generally restructure the poli­
tical process so that a 1JL comparable 
governmental action would be harder to 
secure in the future. Rather, using a 
subject-matter classification like those 
struck down in Hunter and Lee, Initiative 
350 rescinded The Seattle Plan and preven­
ted its duplication in the future by non- 
neutrally realigning the political struc­
ture of public education in Washington 
along lines corresponding to the race of 
the persons adversely affected. Under the 
Initiative, the minority victims of de 
facto school segregation could only secure 
governmental action relieving that condi­
tion from the State legislature or the 
State electorate at large, although all
other citizens remained free to achieve



any other goal of public education or 
student assignment through local school 
boards.

The racial classification drawn by 
Initiative 350 is clear from the face of 
that provision. Under the Initiative, the 
citizens of Washington remain free, as 
before it was adopted, to secure from 
local school boards: (i) any governmental 
action affecting public education other 
than student assignment (Initiative 350, 
§ 1 ), and any student-assignment action 
designed to (ii) utilize "the school 
nearest or next nearest to student's place 
of residence" (id. ), or, regardless of the 
location of the school facility, to (iii) 
improve "the course of study" available to 
students (id.), (iv) provide "special 
education, care or guidance," including 
for "students who are physically, mentally



40

or emotionally handicapped" (id. §§ 1 (1 ), 
(4)), (v) alleviate transportation diffi­
culties, caused by "health or safety 
hazards, either natural or man-made, or 
physical barriers or obstacles, either 
natural or man-made" (id. § 1 (2 )), (vi)
avoid attendance at facilities that are 
"unfit or inadequate because of over­
crowding, unsafe conditions or lack of 
physical facilities" (_id. § 1 (3 )), or
(vii) satisfy "most, if not all, of the 
major reasons for which students are at 
present assigned to schools other than the
nearest or next nearest schools" except
for desegregation (453 F. Supp. at 1 0 1 0 ,
Finding 1 1 /of Fact 8-3). As its propo-
nents promised the voters of Washington,

14/ Initiative 350 is not a neighborhood- 
school law. It leaves intact the local 
school board's broad discretion to define 
the curriculur, remedial, health, safety, 
transportation and space needs of its



41

Initiative 350 occasions "no loss of 
[local] school district flexibility other 
than in busing for desegregation pur­
poses" (473 F. Supp. at 1008, Finding of 
Fact 7.18), and in no way affects the "99% 
of the school districts" in Washington 
(i.e. , all but the three respondent dis­
tricts) that are not now assigning or 
contemplating the assignment of students

14/ continued
students, and to assign those students to 
schools other than those nearest or next 
nearest their place of residence, if it 
concludes that any of those needs will be 
better served by such assignments. Accor­dingly, even were a neighborhood-school 
policy compelling enough to justify what 
otherwise amounts to a constitutional 
violation —  but see Swann v. Charlotte- 
Mecklenburg Board of Education, 402 U.S 1, 
28 (1971) -- Initiative 350 is designed to achieve no such policy, since as both
courts below expressly found, it freely allows local school boards to ignore that 
goal whenever any educational interest 
other than racial integration is involved. 
453 F. Supp. at 1010 (Finding of Fact 
8.3), aff'd, 633 F.3d at 1344 & n.4.



42

to encourage interracial contact (id̂ . at 
1008-09, Finding of Fact 7.9).

Accordingly, the single class sub­
jected by Initiative 350 to the extra­
ordinary political burden of having to 
obtain statewide legislative or popular 
approval of local student-assignment pro­
posals suiting its particular needs is 
composed exclusively of "the black stu­
dents" in the State of Washington who 
are victimized by segregation in the
public schools. Id. at 1007 (Finding of

15/Fact 6.12), aff *d, 633 F.2d at 1342-44.—  
Since, as in Hunter and Lee the disadvan-

15/ The Courts below both found that 
black citizens living in segregatd neigh­
borhoods in Washington believe that racial 
integration of the schools would benefit 
their children. Regardless of whether 
those citizens are right or wrong (see 
Section II, infra), the State of Washing­
ton may not constitutionally subject them 
to political hurdles, not applicable to other citizens, that impede their 
achievement of that goal. In short, the



43

taged class is defined by the race of its 
members, the law offends the Equal Protec­
tion Clause regardless of the motivation

16/of its proponents.

15/ continued
social validity of' racial integration is 
not at issue here. What is at issue is 
the right of black citizens to pursue that 
legitimate governmental objective through 
lawful political processes on the same 
basis as all other citizens are permitted 
to pursue their legitimate governmental 
ends.
16/ Much is made by appellants of the 
fact that the provisions in Hunter and 
Lee defined the forbidden subject-matter 
classification in terms of the subject- 
matter on which a special political burden 
was placed by the State (i.e., fair­
housing regulation in Hunter and student 
reassignment to achieve integration in 
Lee) , and accordingly used the word 
¥race," while the drafters of Initiative 
350 defined the subject-matter classifi­
cation in terms of all of the subject 
matters on which the special political 
burden was not placed (i.e. , every use 
of student reassignment save for inte­
gration), and thereby avoided using the 
word "race." However, it was not the 
wording of the laws in Hunter and Lee, or 
even any facial nonneutrality in that 
wording, that rendered those laws un-



44

To put it bluntly, members of the 
political majority in Washington have 
passed a law requiring racial minorities 
to seek statewide approval of govermental 
action on their behalf, while insisting 
that action on every one else's behalf 
need only secure the approval of local 
officials. As a result, the internal

16/ continued
constitutional. As the Hunter Court not­
ed, those laws on their faces "treat[ed] 
Negro and white, Jew and gentile in an 
identical matter." Hunter v. Erickson, 
supra, 393 U.S. at 391. The Court struck 
down the laws in Hunter and Lee because it 
was clear, once the "covert" statutory classifications they created were exposed
(see Personnel Administration v. Feenev, 442 U.H. 256, 274 (1979)), that they
separated persons for differential treat­ment along lines that corresponded exactly 
(rather than only approximately, as in, 
e«g»f Feeney, supra; Village of Arlington 
Heights v. Metropolitan Housing Authority, 
429 U.S. 252 ( 1977); Washington v. Davis 
426 U.S. 229 (1976); and James v. Val- 
tierra, 402 U.S. 137 ( 1971 )) to the race 
of the persons adversely affected. It is 
in this sense that the offensive classifi­
cations were "explicitly racial," and thus



45

political processes governing public 
education in Washington are not organized 
"on the basis of any general principle," 
Hunter v. Erickson, supra, 393 U.S. at 395 
(Harlan, J., concurring), and do not 
"treat[] all individuals as equals" re­
gardless of race, Mobile v. Bolden, supra,

16/ continued
unconstitutional, regardless of the motive 
for drawing them. Hunter v. Erickson, 
supra, 393 U.S at 389? see notes 5, 8 ,
supra.

The classification drawn by Initiative
350' is nonneutral and explicitly racial in precisely the same way as the classifi­
cations struck down in Hunter and Lee. Indeed, as the district court1s factfind­
ings make clear, the classification drawn 
by Initiative 350 —  between minorities
favoring mandatory student assignment to 
relieve them of racial isolation and all
other persons seeking beneficial govern­mental action relating to education or
student assignment —  is identical to the explicitly racial classification struck 
down in Lee. See 473 F. Supp. at 1008-09 (Findings of Fact 7.8, 7.9, 7.18, 7.19).

Put simply, it was the substance of 
the laws struck down in Hunter and Lee,



46

446 U.S. at 84 (Stevens, J. , concurring). 
Rather, they deny the black victims of 
school segregation the same degree of 
political protection afforded all other
citizens by the laws of the State. This,

>

in its rawest form, is the denial of "the 
equal protection of the laws." It is 
unconstitutional under the Fourteenth 
Amendment.

16/ continued
and it is the identical substance of 
Initiative 350 —  the correspondence of 
the classification drawn to the race of 
the persons adversely affected —  rather 
than the form or specific wording of those 
provisions that (barring some compelling 
justification) render all three unconsti­
tutional irrespective of the motivation of 
their drafters.



47

II
RACIAL INTEGRATION OF PUBLIC EDUCA­
TION, WHICH INITIATIVE 3 50 NON- 
NEUTRALLY FRUSTRATES, IS A LEGITIMATE, 
INDEED PRESSING, POLITICAL OBJECTIVE 
OF BLACK CITIZENS IN APPELLEE SCHOOL 
DISTRICTS._________________________
While white students often benefit

from interracial association, e^g.,
Regents of the University of California
v JL_B a k k e , 438 U.S. 265, 314-15 (1978)
(Powell, J.), the courts below found that
the persons in fact disadvantaged by
Initiative 350 were the black and other
minority students living in segregated
neighborhoods in appellee districts who,
but for the enactment of the Initiative,
would be assigned to racially integrated
public schools. See 633 F.2d at 1343-44.
The parents of these minority students
believe that racially integrated public
education in their school districts would
benefit their children and, prior to



48

Initiative 350's enactment, convinced 
appellee disricts to pursue that objec­
tive in an effective manner. Regardless 
of whether these parents are right or 
wrong in their belief, the State of Wash­
ington may not constitutionally subject 
them, but no other citizens, to political 
hurdles that impede their achievement of 
legitimate governmental action consistent 
with those beliefs. See Part I, supra.

Moreover, there can be no question 
that it is a legitimate governmental ob­
jective for a local school district volun­
tarily to seek to desegregate its schools 
through "exercise of its discretionary 
power to assign students within [its] 
school systemf]." McDaniel v. Barresi, 402 
U.S. 39, 42 ( 1971 ). See note 7, supra. 
It is equally well established that "bus 
transportation [is] a normal and accepted 
tool of educational policy," Swann v.



49
Charlotte-Mecklenburg Board of Education, 
402 U.S. 1, 29 (1971), which "has long
been an integral part of all public educa­
tional systems," and that "it is unlikely 
that a truly effective [desegregation] 
remedy could be devised without continued 
reliance upon it." North Carolina Board of
Education v. Swann, 402 U.S. 43, 46

17/(1971).—

17/ In the last decade, the debate over 
school desegregation has often degenerated 
into a debate over "forced busing." The 
term "forced busing" is a misnomer. 
School districts do not force children to 
ride a bus, but only to arrive on time at 
their assigned schools. When that school 
is beyond walking distance —  for whatever reason —  parents not only do not object 
to busing, they insist on it, and have for many years. Thus, busing children to 
school doubled during the 1930s, grew by 
70 percent in the 1940s, and increased by 
more than a third between 1960 and 1970. METROPOLITAN APPLIED RESEARCH CENTER, 
BUSING TASK FORCE FACT BOOK 22-24 (1972); HEW, National Center for Educational Sta­
tistics, Table, in G. ORFIELD, MUST WE 
BUS? 130 (1978). By 1969, prior to the 
advent of court-ordered mandatory racial 
balance plans in the wake of Alexander v. 
Holmes County Board of Education, 396 U.S.



50

Although apparently conceding its 
legitimacy as a governmental objective,

17/ continued
19 (1969), almost 60 percent of all school- age children were transported to school.
DEPARTMENT OF TRANSPORTATION, TRANSPORTA­
TION CHARACTERISTICS OF SCHOOL CHILDREN 7, 
10-15 (1972). Even today, over 97 percent 
of public-school busing is for purposes 
other than desegregation. The New York 
Times, Dec. 4, 1980, §1, at 25, Col. 1.

The parental demand for busing stems from the fact that riding a bus to school 
is substantially safer than walking. A 
study by the Pennsylvania Department of 
Education found that children who walk to 
school are in three times as much danger 
as those who ride the bus, while the Na­
tional Safety Council reports that boys 
are three times, and girls two times, as 
likely to have an accident walking to 
school than if they ride in a bus. See 
U.S. COMMISSION ON CIVIL RIGHTS, PUBLIC 
KNOWLEDGE AND BUSING OPPOSITION 17 (1973). 
Other statistics establish that riding the 
bus is safer than riding in a car. Buses: 
Backbone of Urban Transit, The American 
City, Dec. 1974, at 23; NATIONAL ASSOCIA­
TION OF MOTOR BUS OWNERS, BUS FACTS 17 
(39th ed. 1972). It is also safer to 
ride a bus to p^ b_l ̂  c school than to 
private school, primarily because private 
and parochial schools rely heavily on 
worn-out buses purchased from public 
school systems after years of use. School 
Bus Task Force, in 120 CONG. REC. 8757 
(1974). Cf. G. ORFIELD, supra, at 129



51

the Government nevertheless questions the 
efficacy of school desegregation for black 
students, purportedly on the basis of 
social science data. Brief for the United

17/ continued
(when a parent removes his child from a 
desegregated school and places the child 
in a private school, the length of the 
child's bus ride increases, on average, 
by 70 percent).

As is attested by the huge increase 
in busing over the last 50 years, busing 
per se does not have any negative educa­
tional effects. Nor is there any evidence that attending a school other than the one 
nearest the student's home negatively af­
fects academic achievement or a school's 
social climate. Davis, Busing, in 2 R. 
CRAIN, et al., SOUTHERN SCHOOLS: AN EVALU­
ATION OF THE EMERGENCY SCHOOL ASSISTANCE 
PROGRAM AND OF SCHOOL DESEGREGATION 118 
(1973); Zoloth, The Impact of Busing on 
Student Achievement, 7 GROWTH & CHANGE 45 
(July 1976).

In short, notwithstanding the focus 
of the opponents of mandatory desegrega­
tion on "forced busing," the social scien­
tific literature unequivocally establishes 
that publically provided transportation to to schools is a safe, indeed necessary,
component not only of desegregation efforts but, much more pervasively, of
public education in general.



52

States, at pp. 38-39, n. 39. However, a 
recent comprehensive review of the social 
science literature on public school dese­
gregation establishes that the educational 
opportunities and achievement of black and 
other minority students are substantially 
enhanced by the use of student assignment 
to achieve racial integragion. Hawley, 
"The False Premises of Anti-Busing Legis­
lation," testimony before the Subcom. on 
Separation of Powers, Sen. Com. on the 
Judiciary, 97th Cong., 1st Sess. (Sep­
tember 30, 1981) (summarizing findings) 
(hereinafter "Hawley testimony")? W. 
HAWLEY, et al., 1 ASSESSMENT OF CURRENT 
KNOWLEDGE ABOUT THE EFFECTIVENESS OF

J_8/ - For the reasons set out in note 15, 
supra, this query by the Government is Irrelevant here. Nonetheless, the sug­
gestion that desegregation is not effec­
tive is so thoroughly inaccurate that 
amicus is compelled to respond.



53

SCHOOL DESEGRATION STRATEGIES, STRATEGIES 
FOR EFFECTIVE DESEGREGATION: A SYNTHESIS
OF FINDINGS 17-50 (1981) (hereinafter
"Synthesis"); C. ROSSELL, et al., 5 AS­
SESSMENT OF CURRENT KNOWLEDGE ABOUT THE 
EFFECTIVENESS OF SCHOOL DESEGREGATION 
STRATEGIES, A REVIEW OF THE EMPIRICAL 
RESEARCH ON DESEGREGATION: COMMUNITY RES­
PONSE, RACE RELATIONS, ACADEMIC ACHIEVE­
MENT AND RESEGREGATION (1981) (hereinafter 
"Review of Empirical Research"). For the 
convenience of the Court, copies of these 
materials, which synthesize the massive 
body of social science research concerning 
school districts undergoing actual sus­
tained desegregation over the last 15 
years, have been lodged with the Clerk's 
office.

Briefly stated, the social science 
review has found, inter alia, that:



54

1. The use of student assignment as
a desegregation method has reduced racial
isolation in every school system studied

19/notwithstanding any "white flight."
2. Desegregation as a general rule

cannot be accomplished effectively without
using student assignment. "Voluntary"
plans, which rely exclusively on student
choice as to whether to be reassigned to
a desegregated school or a "magnet" school
program, have proven to be almost totally
ineffective in reducing racial isola- 

20/tion.
3. Attending racially integrated

19/ Hawley testimony, at 2-9? Synthesis,
at 17-34; Rossell, "The Effectiveness of Desegregation Plans in Reducing Racial
Isolation, White Flight, and Achieving a Positive Community Response" in Review of 
Empirical Research, at 1-87.
20/ Id. Compare, e.g. , Columbus Board of Education v. Penick~  ̂ 443 U.S. 449, 459-60 
(1979) (desegregation plans that do not 
involve student assignment have proven 
ineffective).



55

schools substantially —  often dramatic­
ally —  enhances the academic achievement 
of black students as revealed by commonly 
used achievement and I.Q. measures. Gains 
are greatest when integration starts in 
the earliest grades. The achievement 
levels of white students in integregated
schools do not suffer, while race rela-

2 1/tions among all students improve.—  
As this research demonstrates, the 

goal of effective public-school integra­
tion is not only a proper governmental 
objective, but one that the blacks in 
appellee districts who desire it, and who 
are unconstitutionally burdened by Initia­
tive 350 in achieving it, correctly 
perceive as crucial to their future 
well-being.

21/ Hawley testimony, at 10-13? Crain & 
Mahard, "Some Policy Implications of the
Desegregation-Minority Achievement Litera­ture" in Review of Empirical Research, at
172-208



56

CONCLUSION
The judgement of the Ninth Circuit 

should be affirmed.

Respectfully submitted,

JACK GREENBERG JAMES M. NABRIT, III 
BILL LANN LEE *
JAMES S. LIEBMAN 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

*Counsel of Record
Attorneys for NAACP Legal 

Defense & Educational 
Fund as Amicus Curiae