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

    SUPREME COURT OF THE UNITED STATES '"'V
October Term, 1981

— —
—

STATE OF WASHINGTON, et al., 
Appellants,

=

v.
I gf

■h J- f:
SEATTLE SCHOOL DISTRICT NO, 1. et al .,

Appellees.
m k C §1

-
ON APPEAL FROM THE UNITED STATES 

COURT OF APPEALS FOR THE NINTH CIRCUIT
5Mf|
tsmk

=
BRIEF OF AMERICAN 

CIVIL LIBERTIES UNION, et al., 
(Seattle Intervener Plaint Iffs/Appellees)

Frederick L, Noland 
MacDonald, Hoague A Bayless 
1500 Hoge Building 
SeRttle, WA 98104 
(206) 622-1604

Attorneys for American 
Civil Liberties Union 
of Washington, et al,

Philip L. Burton 
Burton, Crane A Bell 
800 Fifth Ave. Plaza 

Suite 3500 
Seattle, WA 98104 

(206) 623-2468
Attorneys for Seattle 

Branch, National 
Association for 
Advancement of 

Colored People, et al,



William H. Neukom 
Shidler » MeBroom, Gates 
& Baldwin
1000 Norton Building 
Seattle, WA 08104 
(206) 223-4666
Attorneys for Seattle 
Urban League, et at•

James S. Rogers 
Franco, Asia, Bensussen, 

Coe & Finegold 
602 Tower Bui1d i ng 
Seattle, WA 98101 

(206) 624-5622
Attorney & for American 

Jewish Committee, et at,

William L.E, Dussault 
Sweet & Dussault 
219 East Galer St. 
Seattle, WA 98104 
(206) 324-4300

Attorneys for American 
Friends Service 
Committee» et at.

Thomas A. Lenity 
4200 Sea-First National 

Bank Building 
Seattle, WA 98154 

(206) 622-3150

Attorney for Church 
Council of Greater 

Seattle, et at.



i
QUESTIONS PRESENTED

1. Does a statute that does not 
specifically use the words "race" or 
"racial", but which has a concededly racial 
nexus, having been conceived, drafted, 
advocated, and adopted for the specific 
purpose of terminating an ongoing program 
to eliminate racial imbalance in a pre­
viously segregated school district, 
constitute a suspect racial classification?

2. Does a statute which inhibits 
local school officials from using a method 
necessary for the effective elimination of 
racial segregation from the public schools 
impermissibly interfere with the constitu­
tional duties of such school officials?

3. Does a statute granting a private 
right to attend the public school nearest 
or next nearest a student's residence 
impermissibly involve the state in the 
encouragement and promotion of private 
discrimination where the conceded effect of



11
the decisions of private individuals 
sanctioned by the statute is a resegrega­
tion of previously desegregated public 
schools and increased residential segrega­
tion by race?

4. Did the district court correctly 
analyze the relevant facts in reaching its 
conclusion that a racially discriminatory 
intent or purpose was one of the factors 
which motivated the adoption of Initiative 
350?

5. Did the court of appeals cor­
rectly apply the usual rule that successful 
plaintiffs should be awarded their reason­
able attorney's fees and costs in actions 
to vindicate constitutional rights, absent 
a special circumstance rendering such an 
award unjust, where the denial of constitu­
tional rights was by the state, and the 
litigation costs would otherwise be paid 
from funds allocated for the education of 
the children whose rights were vindicated?



iii
TABLE OF CONTENTS

Pa,9e
Statement of the C a s e ..............  1

A. Adoption of School District's 
Appellees' Statement of the
C a s e ....................... 1

B. Comments on Appellants'
Statement................... 2

Summary of Argument................. 4
A r g u m e n t ..............    10

The State Attorney General's
Account of State History On
Racial Matters is Misleading . . 10
Providing Truly Equal Oppor­
tunity In Public Education 
Requires Steadfast Adherence 
to the Principles Announced 
In Brown I and II and Their 
Progeny......................... 16
Appellants' Arguments Disregard
the Central, Unique, Critical,
and Controlling Fact of This
Case: The Initiative Was
Designed to, and if Enforced
Would Resegregate Previously
Desegregated Public Schools. . . 25
A. The factual context........  25
B. The rationales of Hunter 

v. Erickson and Lee v.
Nyquist apply with even 
greater force to the facts 
of this case ............ 28



iv
Page

C. Initiative 350 significantly
involves the State in the 
encouragement of private 
discrimination ............  35

D. Initiative 350 is over-in­
clusive..................... 42

E. Initiative 350 - was the 
product of a forbidden
p u r p o s e ................... 43

The Claim That Initiative 350 
Merely Restored Washington's 
"Neighborhood School Policy" 
Is Based Upon a False Factual
Premise.........................  44
The State's Argument on Over- 
Breadth Lacks Candor..........  51
Initiative 350 Conflicts With
the National Policy of the
Equal Education Opportunities
Act of 1974   63
The United States Has Compromised 
Federal Civil Rights Enforcement 
and Has Forfeited Its Entitlement 
to the Status of a Party . . . .  65
A. The United States should be 

denied further participation
in this c a s e ..............  68

B. The United States' analysis 
relies upon an erroneous 
factual premise............  70

Conclusion. ..................... .. . 80



V
TABLES OF AUTHORITY 

Table of Cases
Pa9e

Anderson v. Martin, 375 U.S. 399,
404 (1964). . .....................  38

Brown v» Board of Education, 347 U.S.
483 (1954)...................11,16-17,65

Brown II (Brown v. Board of Education
of Topeka, 349 U.S. 294 (1954).  ̂ 7 18

Burton v. Wilmington Parking
Authority, 365 U.S. 715 (1961) . . 38

Castaneda v. Granger Pub. Schools, 
Washington Human Rights Reporter 
PWD-122, (Washington State Human 
Rights Commission, March 15,
1973) . •...........................  15

Citizens Against Mandatory Bussing 
v. Palmason, 80 Wash. 2d 445, 495 
P. 2d 657 (1972)................... 26,52

Columbus Board of Education v. 
v. Penick, 443 U.S. 449 
(1379) . 7 ....................... . 21

Crawford v. Board of Education
of the City of Los Angeles, Davis 
v. School Comm’rs. of Mobile County,
402 U.S. 33 (1971)..............  21,22

Dayton Board of Education v.
Brinkman (il), 443 U.S. 526 
(1979). . . .......................  21

Evans v. Newton, 382 U.S. 296, (1966) 38



vi

Goss v. Board of Education* 373 U.S.
683 (1963)..............   42

Green v. School Board of New Kent
County , 391 U.S. 430 (1968) .18—19#38—39

Hsieh v. Civil Serv. Comm'n of
Seattle, 79 Wash. 2d 529, 488 P.2d 
515 (1971).........................  15

Hunter v. Erickson, 393 U.S. 385
(1969)  ̂ i I 7“ ........  6,28,29,31,35et seq.

Kasper v. Edmonds, 69 Wash. 2d 799,
420 P• 2d 346 (l966)............... 52

Keyes v. School Dist. No. 1, 413 U.S.
189 (1973)............ .. • • • 11-12,65

James v. Valtierra, 402 U.S. 137
(1971) . . . . . ................. 30,31

Lee v. Macon County Board of 
Education, 267 F. Supp. 458 
(M.D. Ala. 1967)................... 41

Lee v. Nyquist, 318 F. Supp. 710
(W.D.N.Y. 1970), aff'd, 402 U.S. 935
(1971)................... 21,28, 31,32,33

et seq.

Page

Lindsay v. City of Seattle, 86 Wash.
2d 698,548 P. 2d 320, cert."
denied, 429 U.S. 886 (1976) . . . .  15

Milliken v. Bradley, 418 U.S. 717
(1974) . . . . . ................... 20,66

Monroe v. Board of Commissioners,
391 U.S. 450 (1968).......... .. . 19



vii

Norwood v. Harrison, 413 U.S. 455
(1973)............   41

Opinion of the Justices, 298 N.E.2d
840 (Mass. 1973). . . ’............ 40

Pasadena Bd. of Educ. v. Spangler,
427 U.S. 424 (1976) . . . . . . . . 66

Personnel Administrator of Massachusetts 
v. Feeney, 442 U.S. 256 (1979) .  ̂ I 5743

Raney v. Board of Education, 391 U.S.
443 (1968)........ .. . ...........  19

Reitraan v. Mulkey, 387 U.S. 369
(1967) . . . ................. ^.7,35,66

San Antonio Independent School
District v. Rodriguez, 411 U.S. 1 
(1973).......... . . ..............  30

/ San Francisco Unified School 
District v. Johnson, 92 Cal.
Rptr. 309, 479 P.2d 669, 678-79,
cert, denied, 401 U.S. 1012 (1971) 38

Page

Swann v. Charlotte-Mecklanburg
Bd. of Ed., 402 U.S. 1 (1971) . . .  19

United States v. School Dist.
of Omaha, 521 F.2d 530 (8th Cir.), 
cert, denied, 423 U.S. 946 (1975) 65-66

Village of Arlington Heights v. 
Metropolitan Housing Development 
Corp., 429 U.S. 256 (1979). . . . . 5,43

Washington Bd. Against Discrimination 
v. Board of Directors, 68 Wash. 2d 
262, 412 P. 2d 769 (1966)..........  15



Page
United States v. School Dist. of 

Omaha, 521 F.2d 530 (8th Cir.), 
cert, denied, 423 U.S. 946 
(1975) T~7".......................65-66

United States v. Scotland Neck
City Board of Education, 407 U.S.
484 (1972)..............   21

Constitutional Provisions
U.S. Const, amend. XIV................  49

Statutes
Akron City Charter . . . . . . . . .  6,29
Equal Education Opportunities Act

of 1974 ........................... 21,64
20 U.S.C. § 1703(b).................  64
20 U.S.C. § 1716.................’ . 64
42 U.S.C. § 1988.....................  9
42 U.S.C. § 2000h-2..............68-69
Wash. Rev. Code Ann. § 18A.58.245 . . 47
Wash. Rev. Code Ann. § 28A.41.250 . . 47
Wash. Rev. Code Ann. § 42.30.......... 61
Wash. Rev. Code Ann. § 49.60.030. . . 47
Wash. Rev. Code Ann. § 49.60.100. . . 47

viii



ix

Rules and Regulations
Wash. Admin. Code § 162-28-030. . . .  47
Wash. Admin. Code § 180-30-040. . . .  48

Other Authority
Proposed Bills on Court Ordered School 

Busing - Hearings on S.528, S.1147, 
S.1647, & S.1743 before the Subcomm. 
on Separation of Powers of the Senate

Page

Comm, on the Judiciary, 97 Cong.,
1st Sess. ( 1 9 8 1 ) ..................  23

»

Seattle Post-Intelligencer, Nov. 4,
1980, § A .........................  14

Seattle Post-Intelligencer, Oct. 31,
1981, § C .........................  14

Seattle Times, Nov. 4, 1980, § C. . . 14
Seattle Times, Nov. 26. 1980,§ D . . 14
Seattle Times, Jan. 18, 1981, § E . . 14
Seattle Times, Apr. 2, 1981, § A . . 14
Seattle Times, Aug. 17, 1981, § C . . 14
Seattle Times, Oct. 31, 1981, § B . . 14
Senate Bill No. 3342, Chapter 27,

Laws of 1981....................... 14
A. Siqueland, Without a Court Order;

The Desegregation of Seattle's 
Schools, (1981) at 185 . i i  ̂ . . .  81

U.S. Comm'n on Civ. Rts., Deseg­
regation of the Nation's Public
Schools, A Status Report 67 (1979) 22



NO. 81-9
IN THE

SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM 1981

STATE OF WASHINGTON, et al. , 
Appellants,

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

Appellees.

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

BRIEF OF SEATTLE INTERVENOR 
PLAINTIFFS/APPELLEES

STATEMENT OF THE CASE
A. Adoption of School District Appellees' 

Statement of the Case
The brief filed by the School District 

Appellees accurately summarizes the histor­
ical background and the record, and is 
adopted by these appellees. In this 
respect, and in the argument herein, these 
appellees wish to avoid duplication of that 
which is well presented elsewhere.



2
B . Comments on Appellants' Statement

The Statement of the Case, set out in 
the Brief of Appellants at 3, requires com­
ment. The section entitled "The Historical 
Legal Background" goes outside of the 
record to claim a state history of non-dis­
crimination that does not comport with 
reality and was not at issue in the 
courts below. These appellees will address 
this error in their argument.

The Brief of Appellants also errone­
ously describes Tacoma as a desegregated 
district with "no mandatory bussing pro­
gram" which "adheres to an 'open enroll­
ment' policy which allows any student 
within the District to attend the school of 
his or her choice, subject to practical 
limitations, using the Tacoma Transit 
System." Appellants' Brief at 6.

In fact, the Tacoma desegregation 
program operates by denying minority



3
students admittance to their neighborhood 
schools in order to create capacity for 
white students to transfer into those 
schools. While these minority students 
may still be free to choose which alternate 
school to take a bus to, it is misleading 
to say that there is no "mandatory bussing 
program." (J.S. A-24-25). While this 
distinction may appear slight, it is 
significant. If the State were correct in 
asserting that Tacoma is able to maintain a 
desegregated system through a truly "open 
enrollment" policy, Initiative 350 would 
have no impact on racial imbalance in 
that system. However, as the district 
court specifically found, "[i]f imple­
mented, Initiative 350 will make it impos­
sible for Tacoma schools to maintain their 
present racial balance." (J.S. A-25, f 
10.1).



4
SUMMARY OF ARGUMENT

After years of increasing racial 
segregation in Seattle's schools, the 
Seattle School Board, threatened with 
imminent litigation, adopted the Seattle 
Plan for the Elimination of Racial Imbal­
ance. Implementation of the Seattle Plan 
in the school year beginning September 29, 
1978, was well underway when Initiative 350 
was adopted with an effective date of 
December 7, 1978.

The district court found that Initia­
tive 350 "was conceived, drafted, advocated 
and adopted for the specific purpose of 
overriding the decision of the Seattle 
School Board to balance Seattle schools 
racially by means of student assignments." 
(J.S. A - 3 4) . That conclusion is not 
questioned by the appellants. Nor do they 
seriously question the district court's 
conclusion that Initiative 350 would 
accomplish its purpose if it were adhered



5
to by school officials (in the absence of 
an overriding court order).

1. In concluding that a racially 
discriminatory purpose was one of the 
factors that motivated the conception and 
adoption of Initiative 350, the district 
court correctly considered the factors 
outlined by this Court in Village of 
Arlington Heights v. Metropolitan Housing 
Development Corp., 429 U.S. 252 (1977), and 
Personnel Administrator of Massachusetts v. 
Feeney, 442 U.S. 256 (1979). Factors
considered by the district court included 
the historical background of Initiative 
350, the specific sequence of events 
leading to it, the procedural and substan­
tive departures from the norm in connection 
with its adoption, and what the State 
admits to have been the "virtually uncon­
troverted evidence that most of the state's 
voters were aware that Initiative 350 was 
drafted in response to the Seattle Plan and



6
that, if adopted, it would have the effect 
of curtailing its implementation." (Appel­
lants' Brief at 29).

2. The district court also correctly
concluded that Initiative 350 is a racial 
classification unsupported by any compel­
ling state interest. The rationale articu­
lated by the Court in Hunter v. Erickson, 
393 U.S. 385 (1969), applies with even
greater force to this case, since Initia­
tive 350 seeks to undo benefits already 
gained and creates a greater political 
barrier to the achievement of important 
goals by racial minorities than that 
created by the amendment of the Akron City 
Charter in Hunter.

3. The district court was also 
correct in concluding that Initiative 
350 is overly inclusive because it pro­
hibits local school officials from taking 
actions pursuant to the Court's often



7
repeated command that local school offi­
cials have the first and primary responsi­
bility for eliminating racial discrimina­
tion in the public schools. Even if the 
State Attorney General were to render an 
authoritative opinion stating that Initia­
tive 350 has no effect on the power of 
local school officials who believe them­
selves to be under a constitutional obliga­
tion, the defect would not be cured. Such 
an opinion would, at most, prevent enforce­
ment action by state officials but could 
not prevent any interested person from 
enforcing the statute, since state courts 
are not bound by opinions of the Attorney 
General.

4. Initiative 350 is also invalid 
under the principle announced in Reitman v. 
Mulkey, 387 U.S. 369 (1967), that a state 
may not significantly encourage private 
discrimination. Although not relied upon 
by the lower courts, this principle pro­
vides an additional basis for affirmance.



8
5. The claim by the State that 

Initiative 350 merely restores a "state­
wide neighborhood policy" is totally 
without merit. No such policy exists, and 
the state-wide policy to eliminate racial 
isolation that predated Initiative 350 
would be destroyed by it.

6. These appellees ask that the 
Court disregard the position now taken by 
the United States and disallow further 
participation by the United States as a 
party. The brief on behalf of the United 
States was filed after these appellees 
objected to the ethical propriety of 
continued participation in the case by 
attorneys who previously participated on 
the opposite side. The original permission 
to intervene granted to the United States 
was based upon a statute permitting such 
participation only in support of civil 
rights plaintiffs. The United States' 
unprecedented repudiation in this Court of



9
the position it urged in the lower courts 
should not be condoned.

7. These appellees fully support the 
School District Appellees with respect to 
the issue of attorneys' fees. The award of 
attorneys' fees to the School District 
Appellees directed by the court of appeals 
is consistent with the purpose of the Civil 
Rights Attorney's Fee Award Act of 1976, 42 
U.S.C. § 1988. Failure to allow attorneys' 
fees would directly penalize the children 
who attend the Seattle public schools 
since the cost of this litigation would be 
paid out of money intended and otherwise 
available for direct educational expendi­
tures. The State's claim that an award of 
attorneys' fees would represent a "double­
dipping" by the Seattle School District is 
factually incorrect.

The courageous action of the Seattle 
School Board is precisely what the Court 
has demanded of school officials in the



10
past. Now the Court should lend the full 
weight of its legal and moral authority to 
the support of that school board. The 
Seattle Plan is a dramatic step toward the 
fulfillment of the national dream of 
equality of opportunity. It is unthinkable 
that this Court would require the Seattle 
School District to turn back now toward a 
resegregation of its public schools and the 
entrenchment of segregated housing that the 
district court found would follow.

ARGUMENT
The State Attorney General's Account 
of State History On Racial Matters Is 
Misleading
In its statement of the case under a 

section entitled "The Historical Legal 
Background," the Attorney General makes an 
assertion of fact which, even if technic­
ally correct, is highly disingenuous:

To date, no Washington school 
district has ever been judicially 
declared to have engaged in racial 
segregation in violation of the 
Fourteenth Amendment in the assign­
ment of students in Washington's



11
public schools. [State's Brief at
3.]

In going outside of the record to 
allege the non-existence of prior judicial 
determinations of purposeful segregation in 
Washington State, the Attorney General 
would apparently have the Court draw the 
inference that purposeful segregation 
has never occurred in Washington. The 
absence of such a judicial declaration is 
hardly surprising in view of the fact that 
the only three school districts with 
sufficient minority populations to be 
impacted by Initiative 350 were desegre­
gated by their own school boards after the 
Court's decision in Brown v. Board of 
Education, 347 U.S. 483 (1954).1 Rather
than drawing the inference of non-discrim­
ination sought by the Attorney General, the

Pasco and Tacoma accomplished the desegre­
gation of their schools before the Court's 
decision in Keyes v. School Dlstr. No. 1,



12
facts compel the opposite inference.
First, the inference sought by the Attorney
General is destroyed by the State's own
admissions. As the State informed the
district court in the Post Trial Brief of
State Defendants (CR 387 at 23):^

[T]he state defendants believe that 
the Pasco School District is pre­
sently under an obligation to cure 
both the original (but still par­
tially unproven on this record) and 
the ongoing invidious and inten­
tional racial discrimination (which 
has already been described above and 
which .i £ established on this 
record.) [State's emphasis].

413 U.S. 189 (1973). (J.S. App. A-9 toA-12) • Seattle's desegregation of its
middle schools and later adoption of the 
Seattle Plan both followed and responded to 
litigation or threats of litigation. (J.S. 
App. A-14 to A-18). See also pp. 72-79, 
infr a , discussing the Seattle School 
District's allegations of purposeful 
discrimination by other governmental 
entities and its admissions of the proba­
bility that a court would find unlawful 
segregation in Seattle if the facts were 
examined in litigation, 
oIn its brief to this Court, the State also 
asserts that the Pasco School District is



13
In its review of "The Historical 

Legal Background," the Attorney General 
also makes reference to "a comprehensive 
scheme of civil rights law," with citations 
to 14 state statutes relating to discrimi­
nation. (State's Brief at 3-4 n.2). The 
only possible relevance of these statutes 
to the matter before the Court would be if 
the Attorney General were asking the Court 
to infer from these statutes that racial 
fear and prejudice has never existed in 
Washington and that, therefore# it is 
unlikely that racial fear and prejudice 
could have motivated any of those who 
proposed or supported Initiative 350. 
Again, the opposite inference is compelled. 
If Washington State were free from this 
pernicious national affliction, there

Footnote 2 (cont.)
guilty of "invidious racial discrimination" 
in a situation "worse than that which the 
Sixth Circuit found deplorable in Lansing." 
(State's Brief at 15-16).



14
would have been no need for such legisla­
tion. In fact, the continuing existence of 
racial prejudice and intolerance is evi­
denced by the most recent anti-discrimina­
tion statute, passed in 1981 by the Wash­
ington State Legislature in response to 
cross burnings at the homes of blacks in 
Seattle, Kent and Woodinville, the painting 
of swastikas on Jewish—owned businesses
in Olympia, and harassment of Hispanics 

3in Yakima. The State fails to mention

Sena te Bill No. 3342, Chapter 267 , Laws o f1981 , a c r i m i nal statute r e 1 a ting t omalicious harassment, effectl ve July 26,1981. The cross burnings and o ther rac ialincide n t s were widely repi3 r t e d . !SeeSeattle Times, Nov. 4, 1980 , § C a t 2;Seattle Post-Intetlligencer, No v. 4 , 1980 , §A a t 7 ; Seat tli2 Times, Nov . 2 6, 1 980 ,§ D a t 18; Seattle Times, Jan., 18, 1981 , §E at 21 , Seattle Times, Apr. 2, 1981, § A
at 16; Seattle Times, Aug. 17, 1981, § C at 
2; Seattle Post-1ntel1igencer , Oct. 31, 
1981, § C at 1; and Seattle Times, Oct. 31, 
1981, § B at 10.



15
this statute and this history in its 
brief. *

In sum, Washington, as elsewhere in 
the nation has a record of discrimination 
against racial minorities that includes 
both progressive efforts to cure the 
scourge and continuing reminders of the 
extent to which human action is influenced 
by subconscious fears and prejudices. * 3

Prejudice and Discrimination in Washington 
has not been limited individual action. 
Some examples of proven discrimination by 
governmental entities: Lindsay v. City of 
Seattle, 86 Wash. 2d 698, 704, 548 P.2d
3 2 0 , 3 25 , c.££_tj_denied , 429 U.S. 886
(1976), (evidence established prima facie 
case of discrimination against minorities 
in city employment practices); Hsieh v. 
Civil Serv. Commfn of Seattle, 79 Wash. 2d 
529, 488 P.2d 515 (1971) (public employment 
discrimination against aliens); Washington
B. d. ™ A5.iL r d of Directors. 68 Wash. 2d 262 , 412 P.2d 7~69 
(1966) (school district discriminated on 
basis of race in employment); Castaneda v. 
Granger Pub. Schools, Washington Human 
Rights Reporter PWD-122, (Washington State 
Human Rights Commission, March 15, 1973) 
(district held to have discriminated in 
employment on the basis of race).

t



16
Providing Truly Equal Opportunity In 
P~ublic Education Requires Steadfast 
Adherence to the Principles Announced 
In Brown I and II and Their Progeny
By comparison with the 204 years which

transpired from Virginia's legislative
recognition of slavery as an institution in
1661 to 1865 when the Thirteenth Amendment
officially terminated slavery in the United
States, the 28 years since this Court's

5decision in Brown I is a mere histor­
ical moment.

The Court is well aware of the resis­
tance that has frequently accompanied the 
implementation of the Court's mandate in 
Brown I. In light of that resistance, it 
is remarkable that the basic teaching of 
Brown I has never seriously been ques­
tioned :

Today, education is perhaps the 
most important function of state 
and local governments. Compulsory 
school attendance laws and the great 
expenditures for education both

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



17
demonstrate our recognition of the 
importance of education to our 
democratic society. It is required 
in the performance of our most basic 
public r e s p o n s i b i l i t i e s , even service in the armed forces. It is 
the very foundation of good citizen­
ship. Today it is a principal 
instrument in awakening the child to 
cultural values, in preparing 
him for later professional training, 
and in helping him to adjust nor­
mally to his environment. 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 
an opportunity, where the state has 
undertaken to provide it, is a right 
which must be made available to all on equal terms.

We come then to the question 
presented: Does segregation of
children in public schools solely on 
the basis of race, even though the 
physical facilities and other 
"tangible" factors may be equal, 
deprive the children of the minority 
group of equal educational opportu­
nities? We believe that it does.
• • •
We conclude that in the field 

of public education the doctrine of 
"separate but equal" has no place. 
Separate educational facilities are inherently unequal.

347 U.S. at 493, 495.



18
£Brown II considered "the complexities 

arising from the transition to a system of 
public education freed of racial discrimi­
nation." 349 U.S. at 299. The Court went 
on to declare that "[s]chool authorities 
have the primary responsibility for eluci­
dating, assessing, and solving these 
problems; courts will have to consider 
whether the action of school authorities 
constitutes good faith implementation of 
the governing constitutional principles." 
Id.

The affirmative duty of school boards 
to eliminate racial discrimination was 
again emphasized in Green v. County School

^Brown v. Board of Education, 349 U.S. 294 
(1955) .



19
Board of New Kent, 391 U.S. 430 (1968), and

7its companion cases.
The primary, affirmative obligation of 

local school officials was reiterated in 
Swann v. Charlotte-Mecklenburg Board of 
Education, 402 U.S. 1 (1971), in a unan­
imous opinion by the Chief Justice: "If
school authorities fail in their affirma­
tive obligations under these holdings, 
judicial authority may be invoked." Id. 
15.

In considering when and under what 
circumstances the courts should interfere 
with the administration of the public 
schools, the Court has noted:

Raney v. Board of Ed., 391 U.S. 443 (1968); 
Monroe v. Board of Comm'rs., 391 U.S. 450 
(1968). In Green, the Court also held that 
local school authorities do not meet their 
"continuing duty" to eliminate racial dis­
crimination by the adoption of a "freedom 
of choice" plan where experience has shown 
such a plan to be ineffective. 391 U.S. at 
440.



20
No single tradition in public 
education is more deeply rooted than 
local control over the operation of 
schools; local autonomy has long 
been thought essential both to the 
maintenance of community concern and 
support for public schools and to 
quality of the educational process. 
See Wright v. Council of the City of 
Emporia/ 407 U.S. at 469. Thus, in 
San Antonio S chool District v. 
Rodriguez, 411 U.S. 1, 50 (1973), we 
observed that local control over the 
educational process affords citizens 
an opportunity to participate in 
decision-making, permits the struc­
turing of school programs to fit 
local needs, and encourages "exper­
imentation, innovation, and a 
healthy competition for educational 
excellence."

Milliken v. Bradley, 418 U.S. 717, 741-742
(1974) .

Of all of the constitutional doctrines 
relating to race and schools that this 
Court has articulated, none has been more 
often repeated and more steadfastly adhered 
to than the principle that local school 
officials have a primary constitutional 
duty to take such actions as may be 
required to assure the vindication of the



21
constitutional rights of the children whose 
school attendance is compelled by the 
State.8

Initiative 350 seeks to deny from 
Washington's local school officials the 
very responsibility this Court has repeat­
edly held to be imposed upon them by the 
Constitution. It is difficult to conceive 
of a statute which more directly and flag­
rantly confronts the principles enunciated 
by this Court. As noted earlier, both the 
statute struck down in Lee v. Nyquist, 318 
F. Supp. 710, and the Equal Education 
Opportunities Act of 1974, upon which the 
State mistakenly relies, specifically 
granted local school officials the power

In addition to the cases cited above, other 
cases recognizing this affirmative duty 
include Columbus Bd. of Ed. v, Penick, 443 
U.S. 449^ 4 60 (19 7 9) ; Dayton Bd. of Ed. v,
Brinkman (II), 443 U.S. 526 ,  537 ( 1 9 7 9 ) ;
Keyes v. School Dist. No. 1 , 413 U.S. 189
( 1 9 7 3 ) ;  United States v. Scotland Neck Bd. 
of Ed. , 4 0 7  U.S. 4 8 4  ( 1 9 7 2 ) ;  Davis v .
School Comm'rs of Mobile County, 4 0 2  
U.S. 33 r i 9 7 1 ) .



22
Initiative 350 seeks to deny them. Even 
California's Proposition 1, under review 
with this case in No. 81-38, Crawford v. 
Board of Education, specifically provides 
that "[n]othing herein shall prohibit the
governing board of a school district from

/voluntarily continuing or commencing a 
school integration plan after the effective 
date of this subdivision as amended." 
(Petitioners' Brief in No. 81-38 at 6).

Seattle was the first major city in 
the United States to implement an extensive

9desegregation plan without court order. 
The Seattle Plan works. On October 16, 
1981, the President of the Seattle School 
Board testified before the Subcommittee on 
Separation of Powers of the Committee on

9U. S .  Comm’ n on Civ .  R t s . ,  Desegregat ion  
of the N a t i o n ’ s Publ ic  S c ho ol s ,  A Status  
Report 67 ( 1 9 7 9 ) .



23
the Judiciary of the United States
e . 10 Senates

The Seattle Plan has successfully 
desegregated Seattle's schools, and 
educational quality has been en­
hanced. All students now have the 
opportunity for a multi-ethnic 
education, which Seattle citizens 
believe is essential to preparation 
for life in this pluralistic soci­
ety. There have been no adverse 
educational effects. Achievement 
scores have risen slightly district­
wide, and in fact, achievement 
gains in the pairs and triads appear 
greater than in other District 
schools.
The Seattle Plan has not had a 

harmful effect on white enrollment. 
Before the Plan, enrollment had 
fallen steadily from nearly 100,000 
(over 85% white) in 1963 to under 
60,000 (65% white) in 1977. In the 
first three years of the Seattle 
Plan, the proportion of white 
students in the District declined 
roughly 3% per year, the same 
rate as in the three years before 
the Plan. Had it not been for the 
influx of thousands of Asian immi­
grant students, the drop in the

See Oct. 16, 1981 Statemen
Hittman, Proposed Bills on 
School Busing - Hearings on S
S . 1 6 4 7 ,_&_S .1743 before the
Separation of Powers of the 
on the Judiciary , 9 7 Cong

t of Suzanne 
Court Ordered 
.528, S.1147, 
Subcomm. o n 
Se nate Comm. 

1st S e s s .
(1981) . • *



24
proportion of white students this 
year and last would have been closer 
to 1%. And it appears that school 
desegregation has played a part in 
slowing, and even reversing, 
the trend toward greater residential 
segregation in some portions of the 
city.
Seattle has adjusted peacefully to 

desegregated schools. At the last 
local property tax levy election, a 
near record rate of voter approval 
—  roughly 80% —  was achieved. And 
in the most recent School Board 
elections, pro-Seattle Plan candi­
dates defeated anti-Seattle Plan 
candidates. Several efforts to stop 
the Plan, including a statewide 
initiative and recent legislative 
action, have been resisted success­
fully by the School Board in the 
courts.
Last spring, after a lengthy 

process of citizen involvement, the 
Seattle School Board adopted a 
three-year plan of school closures 
and complementary changes in the 
desegregation plan. Continued local 
control of desegregation has per­
mitted modifications in the Plan to 
be made on an educationally sound 
basis, and with minimum disruption.

Seattle is now prepared to make 
further progress. The City Council 
and School Board have jointly 
adopted goals calling for coordi­
nated action to encourage residen­
tial integration. With cooperation 
of City, School District and housing 
officials, Seattle should be able to 
reduce the need for mandatory 
assignments over the long term.



25
We believe the Seattle experience 

demonstrates how proper planning and 
responsible leadership can produce 
school desegregation that is suc­
cessful educationally and successful 
in stabilizing a city school system. 
Wh ere elected officials do not 
ignore their oaths of office, but 
instead discharge their constitu­
tional obligations, the courts and 
the federal government need not 
intrude in local school governance. 
Again, we urge the Committee to 
refrain from any action which would 
impair the ability of local school 
districts to desegregate with local 
control, or which would impair their 
incentive to do so.

Appellants* Arguments Disregard the 
Central, Unique, Critical, and Con-
trol 1 ing F act of This Case:__The
Initiative Was Designed to, and if 
Enforced Would Resegregate Previously 
Desegregated Public Schools
A. The factual context
Appellants' brief avoids any mention

of the undisputed fact that enforcement of
Initiative 350 would actually cause the
r e s egreg a tion of thousands of school
children in the only three school districts
that the initiative substantially affects.
This is the unique and controlling fact
of this case. This ultimate fact should be



26
considered together with six other basic 
facts, none of which are in substantial 
dispute:

1. If the Seattle School Board had 
not adopted the Seattle Plan, the Board 
would have become a defendant in an action 
alleging past purposeful segregation of the 
district. (J.S. A-18, IT 6.12? Complaint in 
Intervention of Seattle Intervenor Plain­
tiffs at 5-7).

2. The Seattle School Board had full 
legal authority to adopt and implement the 
Seattle Plan under Washington law prior to 
Initiative 350. Citizens Against Mandatory 
Bussing v. Palmason, 80 Wash. 2d 445, 495 
P.2d 657 (1972) .

3. The action of the Seattle School 
Board in adopting the Seattle Plan was man­
dated by and consistent with existing state 
policy requiring the elimination of segre­
gation in the public schools, whether de
3ure or de facto. See argument infra at 
pp. 44-51.



27
4. The Seattle Plan was already in

its first year of implementation (a school 
year beginning on January 29, 1978) and had 
sharply reduced the degree of racial 
imbalance in the Seattle School District 
when Initiative 350 was passed. Affidavit 
of David L. Moberly [supporting Plaintiffs' 
Motion for Preliminary Injunction at 13 and 
Ex. D thereto] ? (J.S. A-18, IT 6.13 and
A-22, 1T 7.24) .

5. Initiative 350 was "conceived, 
drafted, advocated and adopted for the 
specific purpose of overriding the decision 
of the Seattle School Board to balance 
Seattle schools racially by means of 
student assignments." (J.S. A-34.)

6. The district court's finding that 
implementation of Initiative 350 would 
result in increased racial imbalance in the 
plaintiff school districts is undisputed. 
(J.S. A-23, f 8.1.)



28
B . The _£ationales_of_Hunter_v_1 

Erickson and Lee v. Nyquist apply 
with even greater force to the 
facts of this case

The State's efforts to distinguish 
Hunter v. Erickson, 393 U.S. 385 (1969),
and Lee v. Nyquist, 318 F. Supp. 710 
(W.D.N.Y. 1970), a f f 1d , 402 U.S. 935
(1971), only reinforce the conclusion that 
the rationale of those decisions applies 
with even greater force to the facts of 
this case than to the facts upon which 
those cases were decided.

The amendment to the Akron City 
Charter struck down in Hunter, and the 
statute struck down in Lee, both applied 
only to future efforts by racial minorities 
to achieve equality of opportunity in 
housing and education. In marked contrast, 
Initiative 350 was intended to, and would, 
if enforced, not only limit the authority 
of local school districts to accomplish



29
desegregation in the future, but would
actually reverse progress made in the 
past.

Milder, a fair housing ordinance 
enacted by the Akron City Council was 
invalidated by a referendum amending the 
City Charter. The City Council had been 
under no affirmative constitutional obliga­
tion to enact such an ordinance. Indeed, 
the Akron Ordinance had provided "an 
enforcement mechanism unmatched by either 
state or federal legislation." 393 U.S. at 
389. In striking down the charter amend­
ment, the Court said in Hunter:

Even though Akron might have pro­
ceeded by majority vote at town 
meeting[s] on all its municipal 
legislation, it has instead chosen a 
more complex system. Having done 
so, the State may no more disadvan­
tage any particular group by making 
it more difficult to enact legisla­
tion in its behalf than it may 
dilute any person's vote or give any 
group a smaller representation than 
another of comparable size.

Id. at 392-393.



30
According to the State, "[t]he true 

basis for Hunter, it is also important to 
note, was emphasized in James v. Valtierra, 
402 U.S. 137 (1971)... ." Appellants' 
Brief at 12. The State then quotes the 
very language from James v. Valtierra that 
distinguishes it from this case as effec­
tively as it distinguished it from Hunter:

The Article [amending the California 
Constitution] requires referendum 
approval for any low-rent public 
housing project, not only for 
projects which will be occupied by a 
racial minority. And the record 
here would not support any claim 
that a law seemingly neutral on its 
face is in fact aimed at a racial 
minority

Appellants' Brief at 12-13, quoting from 
402 U.S. 140-141 (emphasis added).

James v. Valtierra, like San Antonio 
Independent School District v. Rodriguez, 
411 U.S. 1 (1973), involved non race- 
related legislation. Although Initiative 
350 did not employ the word "race" or



31
"racial", just as in Hunter, the legis­
lation was uncontestably race-related.1'1' 
The portion of James v. Valtierra quoted by 
the State makes it clear that the touch­
stone of Hunter is not the mere use of the 
word "race" or "racial" in a statute, but 
whether "in fact" the legislation was 
intended to deal with a racial matter.

The New York statute struck down in 
Lee v. Nyquist, 318 F. Supp. 710, was far 
less comprehensive in its prohibitions of 
actions designed to improve racial balance. 
That legislation sought to prohibit state 
education officials and appointed school 
boards from action to alleviate racial 
imbalance, "[ejxcept with the express 
approval of a board of education having 
jurisdiction, a majority of the members of

The second question presented by the 
State even acknowledges Initiative 350*s 
"racial nexus." Appellants* Brief i.



32
such board having been elected. . . . "  Id. 
at 712. The statutory obstacles to effec­
tive desegregation created by Initiative 
350 deny the very exception allowed by the 
statute in Lee.

In Lee, as in the present case, the 
state defendants argued that the legisla­
tion did not constitute impermissible state 
involvement in racial discrimination in the 
absence of a finding of de jure segrega­
tion. The three-judge panel in Lee 
replied:

But the argument that the state has 
not discriminated because it has no 
constitutional obligation to end de 
facto racial imbalance fails to meet 
the issue under Hunter v. Erickson. 
The statute places burdens on the 
implementation of educational 
policies designed to deal with race 
on the local level. Indeed it 
completely prohibits the implementa­
tion of such policies where the 
local board is not elected. The 
discrimination is clearly based on 
race alone, and the distinction 
created in the political process, 
based on racial considerations, 
operates in practice as a racial 
classification.

Id. at 719 (court's emphasis).



33
Initiative 350 not only places a 

greater burden on those seeking to imple­
ment educational policies designed to deal 
with race on the local level than the 
statute struck down in Lee, but it operates 
retroactively to deprive minorities of 
benefits already gained. The court in Lee, 
quoting interrogatory answers by the 
defendant Commissioner of Education, noted 
that "[the New York statute] will not 
itself tend to reduce benefits already 
gained... Id. at 717.

Straining to find a meaningful dis­
tinction between the two statutes, the 
State points out that Initiative 350 allows 
elected school boards to assign students to 
the "next or next nearest" school while the 
statute in Lee forbade non-elected school 
boards from compelling assignments "even to 
the next nearest school." Appellants' 
Brief at 14. This comparison is specious. 
Although Initiative 350 prohibits locally



34
elected school boards from assigning 
students to any but the "nearest or next 
nearest" school, the statute in Lee permits 
locally elected school boards to assign 
students to any school for any reason, 
including achieving racial balance. The 
tortured effort to distinguish Lee contin­
ues when the State asserts:

And observe further, in this regard, 
that the ban [in Lee] applied only 
in districts where the majority of 
the school board was not elected, 
i .e ., in those districts in which 
the "local racial hostility" to 
increased racial balance could not 
exercise control on the local level.

Appellants' Brief at 14 (Appellants' 
emphasis). Although the meaning of the 
quoted statement is somewhat obscure, the 
State apparently suggests that the statute 
in Lee somehow would have been less offen­
sive if the ban had also applied to 
those districts in which "local racial
hostility" to increased racial balance



35
could exercise control on the local level,
i.e., those districts where the majority of 
the school board was elected.

C. I n i t i a t l v e  3 5 0  s i g n i f i c a n t l y  
T n volves the State Tn the encour­
agement  o f  p r i v a t e  d is c r im in a -  
in ation

Although the lower courts did not reach 
or rely upon the separate constitutional 
doctrine that a state may not significantly 
involve itself in the facilitation or 
encouragement of private discrimination, 
that doctrine provides a separate and 
independent ground for affirmance. For 
much the same reasons outlined above with 
respect to Hunter v. Erickson, and Lee v. 
Nyquist, the rationale of Reitman v. 
Mulkey, 387 U.S. 369 (1967), applies with
even greater force to the facts of the 
present case than to the amendment to 
California's state constitution invalidated 
in that case. That amendment, like the
legislation in Hunter and Lee, had only



36
prospective application. That amendment 
invalidated existing state fair housing 
legislation, but did not seek to strip any 
person of benefits already obtained 
under that legislation. Initiative 350, by 
contrast, is a statute designed to restore 
the status quo ante.

Further, unlike private housing trans­
actions, assignment of students to public 
schools has always been exclusively a 
public function. Initiative 350 turns that 
function over to private persons, who are 
then authorized to exercise racial preju­
dice in their choice of public schools by 
choosing to reside in racially segregated 
neighborhoods with assurance that the 
racial segregation will extend as well to 
the schools. Even some of the sponsors of 
Initiative 350 candidly admitted in their 
testimony in the district court that some 
parents, given the choice, would act on 
racial fear and prejudice to utilize



37
Initiative 350 to assure that their child 
would be isolated from children of other 
races. (See, e.g., J.A. 102-104).

These private decisions, whether or 
not racially-motivated, affect both the 
child for whom the decision is made and the 
entire school system. If local school 
boards are prohibited from assigning 
students to any school except that nearest 
or next nearest their home, even, an "open 
enrollment" policy is doomed to failure as 
history in Seattle and elsewhere has amply 
shown. The district court's finding that 
racial imbalance in the plaintiff's school 
districts would increase under Initiative 
350 was not in dispute in the trial court 
and is not disputed on appeal. (J.S. A-23, 
1T 8.1). There is also no dispute over the 
finding that under Initiative 350 "there is 
certain to be movement of white parents 
away from those residential areas where 
there is a preponderance of minority



38
families." (J.S. A-25). Through per­
mitting and encouraging such private 
decisions Initiative 350 would cause the 
resegregation of the public schools, and 
greater residential segregation, thereby 
achieving indirectly what the State cannot 
do directly. San Francisco Unified School 
District v. Johnson, 92 Cal. Rptr. 309, 479 
P.2d 669, 678-79, cert, denied, 401 U.S.
1012 (1971)? see Anderson v. Martin, 375
U.S. 399, 404 (1964); See Evans v. Newton,
382 U.S. 296, 306 (1966) (separate opinion
of White, J.) . As this Court noted in 
Burton v. Wilmington Parking Authority, 365 
U.S. 715, 725 (1961), "no State may effec­
tively abdicate its responsibilities by 
either ignoring them or by merely failing 
to discharge them whatever the motive may 
be. "

The analysis urged upon this Court by 
the United States in its amicus curiae
brief, at 12-15 in Green v. County School



39
Board, 391 U.S. 430 (1968), is particularly
apt in considering this matter:

[E]ven if accidental segregation in 
public education is permissible, the 
Constitution does not tolerate 
schemes which invite that result to 
be accomplished by indirect means 
through a delegation of State 
r e s p o n s i b i l i t y .  [ c i t a t i o n s  
omitted.]

In sum, where freedom-of-choice 
plans leave the schools essentially 
segregated, while a more traditional 
assignment policy would not, that 
segregation may fairly be attributed 
to the State. That conclusion alone 
covers the present cases. But the 
fact that the State is knowingly 
contributing to the result has 
another dimension also.

• • • •

The principle is not limited to 
situations in which the State 
teaches a philosophy of racial 
inferiority by expressly compelling 
segregation. The same message can 
be conveyed by lesser measures and 
they are equally forbidden. E .g ., 
Lombard v. Louisiana, 373 U.S. 267; 
Robinson v. Florida, 378 U.S. 153. 
Indeed, in some contexts, the Equal 
Protection Clause prohibits official 
action which merely facilitates, or 
gives effect to, private discrimina­
tion on the ground of race. 
E.g., Anderson v. Martin, 375 U.S. 
399; McCabe v. Atchison, Topeka & 
Santa Fe Railway Co.~ 235 U.S. l5l; 
Shelley v. Kraemer, 334 U.S. 1. And 
see Reitman v. Mulkey, 387 U.S. 369. 
The State cannot gratuitously take



40
steps to make discrimination easy; 
the Fourteenth Amendment bars State 
action which unnecessarily creates 
opportunities for the play of 
private prejudice. So, here, we 
submit, the State authorities 
overstepped the constitutional line 
by adopting student assignment plans 
which predictably, if not design­
edly, cater to the preference of 
white students to avoid desegregated 
schools.

As the Massachusetts Supreme Judicial
Court noted in Opinion of the Justices, 298
N . E . 2d 840, 846 (Mass. 1973), a law like
Initiative 350 promotes and preserves
segregated schools, thus significantly
involving the state in encouraging the
private racial discrimination reflected in

12segregated housing patterns.

12The "historical context" of that case 
parallels the one here;

[I]t is quite apparent from the bill's 
historical context that it was de­
signed to prevent the use of bussing 
as a means of achieving racial bal­
ance. Opinion of the Justices, 298 
N.E. 2d at 844 (footnote omitted). 
Nor did the "immediate objective" and 
"ultimate effect" of the Massachusetts 
law differ from Initiative 350. By



41
This Court has applied an identical anal­
ysis: "Racial discrimination in state-
operated schools is barred by the Constitu­
tion and '[i]t is also axiomatic that a 
state may not induce, encourage or promote 
private persons to accomplish what it 
is constitutionally forbidden to accom­
plish.' Lee v. Macon County Board of 
Education, 267 F. Supp. 458, 475-476 (M.D. 
Ala. 1967)." Norwood v. Harrison, 413 U.S. 
455, 465 (1973).

The Court has also declared that it is 
not relevant that the State's action was 
"motivated by other than a sincere interest 
in the educational welfare of all Missis­
sippi children," so long as the action has

Footnote 12 (cont.)
giving children and their parents an 
absolute right to attend the nearest or 
next-nearest school, Initiative 350 uses 
state power to promote and entrench racial 

separation in all those schools whose 
communities have segregated residential 
patterns." Id. at 845.



42
"a significant tendency to facilitate# 
reinforce, and support private discrimina- 
tion," Id. at 466. Thus, the State may 
not take unusual steps merely to "permit a 
child ... to choose segregation." Goss v. 
Board of Education, 373 U.S. 683, 687
(1963).

Because Initiative 350 removes tradi­
tional governmental control and creates an 
effective private right to cause and attend 
segregated schools, it must not be allowed 
to stand.

D. Initiative 350 is over-inclusive
These appellees join the School 

District Appellees in their argument 
supporting the district court's conclusion 
that Initiative 350 is impermissibly 
overbroad. Brief of Appellees at 14. 
Additionally, we note in a separate section 
of this brief the incorrect factual premise 
of the State's claim that this defect is 
cured by the interpretation purportedly



43
given to it by the State Attorney General. 
See pp. 51-58, infra.

E . Initiative 350 — was the product 
of a forbidden purpose

The district court's analysis of the 
issue of discriminatory purpose correctly 
applied the Court's teachings in Washington 
v. Davis, 426 U.S. 229 (1976), Village of
Arlington Heights v. Metropolitan Housing 
Development Corp., supra, and Personnel 
Administrator of Massachusetts v. Feeney, 
supra. The district court's findings 
in support of its conclusion that discrim­
inatory purpose or intent was one of the 
factors which motivated the adoption of 
Initiative 350 are amply supported in the 
record. This issue is thoroughly discussed 
in the brief of the School District Appel­
lees and needs no further discussion
here.



44
The Claim That Initiative 350 Merely- 
Restored Washington’s "Neighborhood 
School Policy" Is Based Upon a False 
Factual Premise
The State claims that Initiative 350 

is simply a statement to local school 
districts that the people want the dis­
tricts to "retain a neighborhood school 
policy." Appellants' Brief at 8 (footnote 
omitted). The brief of the United States 
also refers to Washington's "state-wide 
neighborhood school policy." United 
States' Brief at 26-27 n.28. Neither brief
cites any authority for claiming the

13existence of a statewide "policy." 
None exists.

1 3Prior to adoption of the Seattle Plan, 
the Seattle School District generally 
assigned students to "neighborhood schools" 
(see J.S. A-22-23, 1 7.28), but that
practice was not pursuant to a formal 
policy or part of any state policy. 
Students were always bussed in large 
numbers for a variety of reasons to non­
neighborhood schools, including for the 
purpose of desegregating the middle schools 
under a mandatory program adopted In 1971. 
The only member of the Seattle School Board



45
Prior to Initiative 350, rather than 

a "state-wide neighborhood school policy," 
Washington had a state-wide policy to 
eliminate racial segregation from Washing­
ton's schools, regardless of the cause of 
that segregation--a policy incompatible 
with the claimed "neighborhood school 
policy." That policy was clearly articu­
lated in the amicus curiae brief filed in
the district court by the Washington State

14Human Rights Commission.

Footnote 13 (cont.)
who opposed the Seattle Plan and supported 
Initiative 350 testified that she doesn't 
even know how to define what a neighborhood 
school is. (Tr. at 1027).
1 4The office of the Washington State 
Attorney General is well aware of the 
conflict between Initiative 350 and Wash­
ington's policy requiring effective action 
to eliminate racial segregation and imbal­
ance, having represented the Washington 
State Human Rights Commission in filing an 
amicus curiae brief urging the district 
court to declare Initiative 350 unconstitu­
tional. The present Washington State 
Attorney General has refused the Commis­
sion's formal request for authorization to



46
The Washington State Human Rights 

Commission is required by statute to 
"formulate policies to effectuate the 
purposes of [the Washington State Law

Footnote 14 (cont.)
file in this Court a brief by the Commis­
sion or any of its members or officers in 
their official capacities. This refusal, 
by letter to the Executive Secretary of the 
Washington State Human Rights Commission 
from the Washington Attorney General, dated 
December 9, 1981, was in response to the 
passage of the following motion, reflected 
in the Minutes of the Regular Commission 
Meeting of November 19, 1981:

[Moved] To request permission from the 
State Attorney General to allow the 
agency's Senior Assistant Attorney 
General to submit an amicus curiae 
brief supporting the Seattle School 
District's position related to Initia­
tive 350, And further, if such per­
mission is not granted by the State 
Attorney General, the Commission will 
submit a letter, containing the signa­
tures of all five commissioners, to 
the U. S. Supreme Court requesting the 
Brief of Amicus Curiae filed on behalf 
of the Commission with the U.S. 
District Court, Western District of 
Washington, in April 1979 be made a 
part of the Court's deliberation since 
this continues to be the Commission­
ers' position on the issue.



47
Against Discrimination]." Wash. Rev. Code 
Ann. § 49.60.100.

In passing Wash. Rev. Code Ann. § 18A. 
58.245 in 1969, the legislature directed 
the State Superintendent of Public Instruc­
tion to develop rules and regulations for 
the implementation of inter-district, 
voluntary programs deemed necessary by the 
Superintendent to improve racial balance 
within and amongst school districts. 
Enacted in 1974, Wash. Rev. Code Ann. § 
28A.41.250, further directed the State 
Superintendent to devise a state-wide plan 
to assist school districts in developing 
programs for the relief of children suffer­
ing from racial isolation. Pursuant to 
Wash. Admin. Code § 162-28-030, the public 
accommodations section of the law against 
discrimination is, made applicable to 
schools in their relationship with stu­
dents, including the rights under Wash. 
Rev. Code Ann. § 49.60.030 to be free from



48
discrimination because of race. The State 
Superintendent was further authorized to 
withhold approval of construction grants to 
school districts unless such construction 
would not create or aggravate racial 
imbalance. Wash. Admin. Code § 180-30-040.

In the Joint Policy Statement of the 
Washington State Board of Education and the 
Washington State Board Against Discrimina­
tion of April 24, 1970, any school is
deemed segregated if 40% or more of the 
student body consists of one minority race. 
The two boards adopted a further Joint 
Policy Statement on November 30, 1973,
affirming the state policy to eliminate 
segregation from the State's schools. The 
definition of "racial imbalance" adopted by 
the Seattle School District and utilized in 
the Seattle Plan was identical to that 
adopted by the State Board of Education. 
(Compare J.A. 50 with J.A. 66). A further 
Joint Policy Statement was issued by the



49
Washington State Board of Education 
and the Washington State Human Rights 
Commission on October 19-20, 1978, reaf­
firming the policy goal of eliminating
racial segregation from the public schools

15of the State of Washington.
Finally, at its most recent public 

meeting, January 14, 1982, the Washington
State Human Rights Commission unanimously 
adopted a resolution confirming its con­
tinuing position that Initiative 350 
conflicts with the Washington State Law 
Against Discrimination and violates the
Equal Protection Clause of the Fourteenth 

16Amendment.

15 All three policy statements are attached 
as exhibits to the Amicus Curiae Brief of 
the State Attorney General for the Human 
Rights Commission filed in the district 
court. The 1978 statement is also set out 
in full in the Joint Appendix at 65-70.
*^The resolution is set out in full as an 
appendix.



50
Before adoption of the Seattle Plan,

the Seattle School District was not only
under pressure and the threat of litigation
from the Seattle Intervenor Plaintiffs and

i 7from the United States Government, but 
was in obvious non-compliance with the 
declared State policy to eliminate racial 
segregation from all of the State's public 
schools.

Adoption and implementation of the 
Seattle Plan brought the Seattle School 
District into compliance with the State's 
desegregation policy. The district court's 
conclusion that Initiative 350 "was con­
ceived, drafted, advocated and adopted for 
the specific purpose of overriding the 
decision of the Seattle School Board to 
balance Seattle schools racially by means 
of student assignments," (J.S. A-34), is
not seriously contested. Thus, it is

17See Def. Ex. A-118, at 22-35 ; R. 1278.



51
evident that instead of restoring a state­
wide "neighborhood school policy," Initi­
ative 350 was intended to and would destroy 
the existing statewide desegregation 
policy.

The State's Argument on Overbreadth
Lacks Candor
As its third and independent basis for 

declaring Initiative 350 unconstitutional, 
the district court found the initiative 
overly inclusive because it prohibits 
school districts from assigning students to 
achieve racial balance even where the 
existing segregation was caused by prior 
governmental action. (J.S. A-35).

The State bases its argument in 
opposition to the overbreadth rationale 
upon the claim that "the district court 
ignored entirely the interpretation of the 
initiative by the State," which was "stated



52
clearly in the Trial Brief of State Defen­
dants." Appellants' Brief at 38.^

The State Attorney General has never ren­
dered a clear opinion that any school board 
believing itself to be under a constitu­
tional duty to desegregate would be unaf­
fected by the prohibitions of Initiative 
350. Nor would such an opinion allow a 
school board to act with assurance. Under 
Washington law, the courts are not bound by 
the Opinions of the State Attorney General, 
which are given only such weight as 
their reasoning warrants. Kasper v. 
Edmonds, 69 Wash. 2d 799, 805, 420 P.2d
346, 350 (1966). In the absence of a
definitive ruling from the Washington 
Supreme Court, any school board action 
within Initiative 350's prohibitions 
would almost certainly be challenged by the 
well organized opponents of desegregation. 
Even if the State's executive branch were 
to take no action to enforce the Initi­
ative, private persons remain free to seek 
injunctive relief in a state trial court. 
As the record forcefully demonstrates, this 
occurred when private litigants succeeded 
(even without the assistance of Initiative 
350) in persuading a state superior 
court to enjoin the Seattle School District 
from implementing its middle school deseg­
regation program in 1971. That trial court 
decision, although ultimately reversed by 
the Washington Supreme Court, caused a 
delay of one year in implementing earlier 
desegregation efforts. Citizens Against 
Mandatory Bussing v. Palmason, 80 Wash. 2d 
445 , 495 P.2d 657 (1972).



53
The central question in determining 

whether Initiative 350 is overly broad is 
whether a local school district, believing 
itself to be under a constitutional duty to 
desegregate its schools, can adopt and 
implement a desegregation program employing 
the methods prohibited by the statute 
in the absence of a judicial determination 
of SL®. 3ure segregation.

A careful review of all of the State 
Attorney General's pronouncements on what 
local school districts may lawfully do 
under Initiative 350 to remedy de jure 
segregation, and under what circumstances, 
compels the conclusion that no opinion has 
ever been given. Despite a formal request 
from the State Superintendent of Public 
Instruction, the Attorney General declined 
to give any opinion. ^

^Dr. Brouillet testified at the trial: 
"We did a s k - - w e did frame a series of 
questions to the attorney general, on the 
basis of what we could do, and what we



54

Footnote 19 (cont.)
could do under 350, and the attorney 
general did respond to us that, pending 
the outcome of this case, they wouldn’t 
dispose of those questions.” (R. 579.)

The impact of the legal uncertainties 
created by Initiative 350 on the planning 
ability of the Seattle School District is 
illustrated by the following testimony of 
Seattle School Superintendent Dr. David 
Moberly, given in response to questions by 
the attorney for the State:

A . . . We also have a number of
questions that are still not 
answered in 350 that we have asked 
the -- through the State Attorney 
General’s Office. We have asked 
the . . .  Attorney General to give 
us some answers on it because we 
have a law that we’ll be faced with 
implementing and that raises a 
series of questions that before 
complete planning for implementa­
tion of 350 can come into effect 
the Attorney General will have to 
do his job and answer those.

Q Have you heard back from the office 
of the Attorney General? Inciden­
tally, that’s my office.

A Yes, I know.
Q Have you heard back from them?
A No, we have not. Whether in recent 

days he has replied to Superinten­
dent [Brouillet], I do not know but 
as far as I know at this point the 
Attorney General has not in any way



55
If any conclusion can be drawn from 

the portion of the Trial Brief of State 
Defendants, quoted in their Appellants' 
Brief, it is that a local school district 
cannot, consistent with Initiative 350, 
undertake a desegregation program in the

Footnote 19 (cont.)
responded to the State Superin­
tendent's request for answers.

Q. I guess I'm puzzled because I'm 
aware of having been with the opinions division of that office 
and they generally decline to 
offer opinions on matters in 
litigation.
MR. HALL: That's what they did.

A. Well, how in the hell am I going 
to plan and be ready if nobody 
will answer some questions that 
are very crucial?

Q. Well, the State's position is 
simple on that. If you want to 
know how to Implement 350 , you 
should have asked the questions 
first and then started the lawsuit 
later. Once you start the lawsuit 
and challenge the law we are sort 
of hamstrung.

A. Well, we're all in a dilemma 
right now.

(Def. Ex. A-118, at 70-73; R. 1278).



56
absence of a judicial declaration of a 
constitutional duty. According to that 
"clear statement":

[W]here a given Washington school 
district finds itself under a 
constitutional duty to override 
Initiative 350, it may certainly do 
so. The Initiative clearly contem­
plates in Section Six that its 
action will be upheld by any court 
of competent jurisdiction, assuming 
that such constitutional duty is
found to exist. U nt i 1_a_given
school district reaches that pointT 
h owever, it must, as a municipal 
corporate creature of the State of 
Washington, attempt to achieve its 
goals within the limitations imposed 
by its own creator.

Appellants' Brief at 38 [emphasis added].
Clearly, "that point" referred to by 

the State is the point at which a court has 
declared the existence of a constitutional 
duty, not the point where the local school 
board concludes that the duty exists.

In view of the refusal of the State 
Attorney General to render an opinion on 
this matter, despite being asked to do so,



57
the claim that the Attorney General's 
interpretation has been ignored approaches 
the bizzare. So does the claim that this 
phantom interpretation is "well supported 
by legislative history". Appellants' 
Brief at 39 n.8.

The State's transcript reference to 
"legislative history," which consists of 
testimony of Sam Franklin, one of the CiVIC 
lawyers who drafted Initiative 350, shows 
just the opposite of what the Attorney 
General seems to suggest. That testimony 
leaves no doubt that the drafters of 
Initiative 350 intended to make it illegal 
for a local school board to assign students 
to schools other than their nearest or next 
nearest, even if the board believes it has 
a duty to do so:

Q (By Mr. Hoge) Adding then Section 
VI, which specified that the 
initiative would not have an effect 
on the adjudication of constitu­
tional issues relating to the 
public schools, what was your



58
intention, Mr. Franklin, of how 
that section would work?

Did you merely mean that if a 
lawsuit were brought which resulted 
in a determination that schools 
were de jure segregated, and that 
bussing of students was required to 
remedy that, that the initiative 
would not interfere?

A That would be one application. I 
suppose another application, very 
simple, would be if the district 
felt that 350 was not constitu­
tional, it would simply disobey the 
state law and take their chances.

q Would that be disobeying a state 
law if the district felt it was 
unconstitutional?

A Yeah, it would~~be disobeying state 
law in response to a higher law, I 
presume, if they are right, they 
better be right.

Q How would they find out if they 
were right?

A Someone would sue them, I guess.
Q Would there then have to be litiga­

tion for the purpose of determining 
whether the de jure segregation in 
the school district was to such an 
extent to require bussing of stu­
dents?A I suppose there would have to be 
litigation, ultimately, if they 
chose to disobey the law.

Q Whether initiated by people in
favor of bussing for desegregation,
or whether it was initiated by 
people opposed to that concept?

A Whoever.
(R. 1180-81) [emphasis added].



59
Since the State Attorney General will 

have the opportunity to further clarify the 
matter in a reply brief, or in oral argu­
ment before the Court, it may be helpful to 
outline the questions that have yet to be 
clearly answered:

1. Is a school board, which believes 
it has a constitutional duty to remedy 
racial segregation, permitted to make 
school assignments prohibited by Initiative 
350 without violating state law?

2. Must such a school board initiate 
an action for a judicial determination of 
its constitutional duty to remedy racial 
segregation? If so, who would be the 
parties, what would be the issues, what 
would be the burden of proof, and who would 
bear that burden?

3. Must such a school board first 
persuade the county prosecuting attorney 
and/or the State Attorney General that it



60
has such a constitutional duty before it is 
free to make school assignments prohibited 
by Initiative 350?

4. Must such a school board attempt 
to cure the constitutional violation 
through means consistent with Initiative 
350 before employing means prohibited by 
the Initiative, even if the board believes 
such permitted means would not be effec­
tive? If so, how many years of ineffective 
efforts would be required before the board 
could employ methods prohibited by Initi­
ative 350? Would that determination need 
the approval of the county prosecuting 
attorney, the State Attorney General, the 
Court?

5. Must such a school board make a 
formal finding of its (or its predeces­
sor's) prior violation of the Constitution 
before making assignments prohibited by 
Initiative 350? If so, does Washington's 
Open Public Meeting Act (Rev. Code of Wash.



61
Ann. Ch. 42.30) require that such a finding 
be made after public deliberations?

6. If an action is commenced in a 
state superior court to enjoin a school 
board from making assignments prohibited by 
Initiative 350, must the school board prove 
its own (or its predecessor board's) 
violation of the Constitution? Must it 
prove that there are no effective means for 
remedying the violation except those 
prohibited by Initiative 350?

7. Can a school board's finding of a 
past violation of the Constitution by 
itself or a predecessor board be used 
against the board or its members in a 
private action for damages caused by such a 
violation? Can such a finding be used as 
evidence in cases charging racial discrim­
ination in other circumstances, e .g ., 
employment discrimination?



62
8. If a school board finds that it or 

a predecessor board violated the Constitu­
tion, but a later judicial declaration is 
made that no such violation occurred, can 
the board's judicially declared violation 
of Initiative 350 be used against the 
school district, or the school board's 
members in a private action for damages 
caused by such a violation of Initiative 
350?

9. Does Initiative 350 repeal by 
implication the policies of the State 
Superintendent of Public Instruction and 
the Washington State Human Rights Commis­
sion requiring that racial segregation be 
eliminated by "whatever means necessary" 
from Washington's schools, regardless of 
the cause?

These appellees maintain that the very 
fact that questions such as these need 
asking illustrates the deterrent effect of



63
Initiative 350 on local school officials 
seeking to fulfill their duty under the 
Constitution.

Initiative 350 Conflicts With the
National Policy o£~~the Equal Education
Opportunities Act of 1974
The State argues that "Initiative 350 

is nothing more than a state-level legisla­
tive parallel to an earlier 1974 act of 
Congress establishing a national neighbor­
hood schools policy." Appellants' Brief at 
35. The State then quotes what it claims 
to be "[t]he relevant provisions of that 
Act." Id.

The State fails to quote the most 
relevant provisions of that same federal 
statute:

Denial of equal educational oppor­
tunities prohibited-
No state shall deny equal educa­
tional opportunity to an individual 
on account of his or her race, 
color, sex, or national origin, by

(b) the failure of an educational 
agency which has formerly practiced



64
such deliberate segregation to take 
affirmative steps, consistent with 
part 4 of this subchapter, to remove 
the vestiges of a dual school 
system;

20 U.S.C. § 1703(b).
Voluntary adoption of remedies

Nothing in this subchapter pro­
hibits an educational agency from 
proposing, adopting, requiring, or 
implementing any plan of desegrega­
tion, otherwise lawful, that is at 
variance with the standards set out 
in this subchapter nor shall any 
court, department, or agency of the 
United States be prohibited from 
approving implementation of a plan 
which goes beyond what can be 
required under this subchapter, 
if such plan is voluntarily proposed 
by the appropriate educational 
agency.

20 U.S.C. § 1716.
As the provisions of the Equal Educa­

tional Opportunities Act of 1974 quoted 
above clearly demonstrate, it is not only 
the mandate of this Court, but the policy 
of Congress to encourage local school 
authorities to desegregate to avoid 
recourse to the federal courts. Initiative 
350 conflicts with basic national policy by



65
interfering with the power of local school 
boards to voluntarily desegregate public 
schools.

The !L_Has
Federal Civil Rights Enforcement and 
Has ForfeTted Its Entitlement to the 
Status of a Party
In the first litigation involving 

racial segregation in a major northern 
school district, the Department of Justice 
noted, "[t]he United States has partici­
pated in every school desegregation case
which this Court has heard on the merits

2 0since Brown_I." After Keyes, the
Department of Justice continued to enforce
vigorously the rights of minorities to
equal protection of the law as plaintiff,
as intervenor plaintiff, and as amicus 

2 1curiae. The Department of Justice
continued that role when, prior to

2 0 Memorandum for the United States as 
amicus^ curiae , at 1 n.l, Keyes v. School 
Dist. No. 1, 413 U.S. 189 (1973).
2 1See , e.g^, United States v. School Diŝ t .
of Omaha, 521 F.2d 530 ( 8th Cir.), cert^



66
obtaining party status, it filed an amicus
curiae brief in the district court stating:

In summary, the United States has a 
duty and obligation to insure that 
public school students are afforded 
equal educational opportunities. 
The voluntary adoption of desegrega­
tion plans by local school districts 
aids the United States in effectu­
ating this enforcement responsibil­
ity. As such it is in the interest 
of the United States to protect the 
ability of the plaintiff school 
districts to continue implementa­
tion of their desegregation plans.

United States' District Court Amicus Brief
at 5.

In the district court and in the court 
of appeals, the United States urged that

Footnote 21 (cont.)
denied, 423 U.S. 946 (1975); Milliken v.
Bradley, 418 U.S. 717 (1974); Pasadena Bd.
of Educ. v. Spangler, 427 U.S. 424 (1976). 
It should also be noted that the United 
States participated as amicus curiae in 
two of the cases that provide a conceptual 
underpinning to the present case, Reitman 
v. Mulkey, 387 U.S. 369 (1967) and Hunter
v. Erickson, 393 U.S. 385 (1969), urging
a position irreconcilable with that now 
asserted.



67
/Initiative 350 be declared unconstitutional 

on all of the grounds upon which those 
courts ultimately so ruled.

The United States' decision to repudi­
ate the position it urged upon the lower 
courts was made without notice to, or 
consultation with, the parties the United 
States had previously committed itself to 
support. From December 16, 1980, the date
of the decision of the Ninth Circuit Court 
of Appeals, until the United States 
switched sides, neither the courts nor the 
Congress made any change in the law which 
could justify the switch on the basis 
of a principled constitutional reanalysis 
of the case. In their zeal to justify 
their shocking change of position, the 
authors of the pleadings filed in this 
Court on behalf of the Government have 
totally disregarded the rules of the



68
2 2Court, the Canons of Ethics and the 

facts of the case.
A. The United States should be denied 

further participation in this case
The United States was permitted to 

intervene in the district court on the 
basis of a motion to intervene under 
Section 902 of the Civil Rights Act of

22 Prior to filing its Brief for the United 
States, the Department of Justice had 
sought an extension of time. Contrary to 
Supreme Court Rule 29.3 the Department 
failed to serve these appellees with a copy 
of that request or to otherwise notify them 
of the intent of the United States to 
continue to participate in the case as a 
party. This made it impossible for 
these appellees to obtain a ruling on the 
question of entitlement of the United 
States to so participate in advance of the 
filing of the United States* brief.

This failure also prevented these 
appellees from seeking in advance a 
determination of their objection, on the 
grounds of professional ethics, to the 
continued representation of the United 
States by the Department of Justice. 
That objection was, however, made directly 
to and rejected by the Solicitor General 
prior to the filing of the Brief for the 
United States.



69
1964# 42 U.S.C. § 2000h—2. As the language 
of that statute, its purpose, its legisla­
tive history, and its continuous use have 
shown, the statute permits intervention 
only on behalf of civil rights plaintiffs. 
Although the Court has denied the motion of 
the United States to expand the time for 
oral argument and for divided argument, the 
Court's action does not make clear whether 
the United States is to be permitted to 
retain its status as a party. For the 
reasons previously set out in the objection 
filed by these appellees and in the separ­
ate objection filed by the School District 
Appellees, the United States should be 
deprived of the status of a party under the 
circumstances of this case.

Apparently, no direct case precedent 
exists to aid the parties or the Court in 
analyzing the propriety of repudiating a 
position taken as a co-party in the lower 
courts and attacking that position and the



70
co-parties previously supported. The 
situation is totally unlike the great 
tradition of the sovereign "confessing 
error" in a criminal case. In such cases, 
the matter is concluded when the Government 
chooses to discontinue further use of its 
power against the defendant. In this case, 
the matter is not concluded and the Govern­
ment has turned its power against those 
with whom it shared a common commitment.

B. The United States' analysis relies 
upon an erroneous factual premise

The United States asserts that, "there 
is no evidence that any [de jure] discrim­
ination exists within the state" (United 
States' Brief at 14), and that, "[t]his 
case does not involve constitutionally 
proscribed racial discrimination, because 
there has been none." Id. at 34. The 
United States suggests that the Court 
should not view the case against a backdrop 
of assumed racial discrimination, but



71
rather should approach the case with the
opposite assumption. This, the United
States argues, is because:

The Initiative's potential for 
impeding elimination of de jure 
segregation can be "real" only if 
there are school districts in the 
state of Washington that are, and 
recognize that they are, unconsti­
tutionally segregated. The district 
court made no such finding. 
Nor is there any evidence in the 
record to support such a finding.

United States' Brief at 47.
The United States further assertsthat:

The plaintiff school districts in 
this action cannot argue that the 
Initiative impermissibly burdens 
their duty to remedy de jure racial 
imbalance because they maintain 
there is no such segregation in 
their districts.

Id. at 46 n.44.
These assertions by the United States 

are wholly refuted by the record and the 
United States' own analysis demonstrates 
that "[t]he Initiative's potential for 
impeding elimination of de jure segrega­
tion" is quite "real."



72
The Seattle School District candidly

admits in its brief that:
The Board was well aware that there 
was some likelihood a court could 
find unlawful segregation in 
Seattle. J.A. 12-13, 16-17, 74, &
127. Although unable and unwilling 
to examine the motives of its 
predecessors, the Board was not 
unreasonable in its perceptions. 
Faculty assignment practices, 
for instance, had been similar to 
those [that] numerous court deci­
sions have deemed to further 
schools' racial indentifiability. 
PI. Ex. 69. Other historical 
factors, such as drawing of atten­
dance boundaries and student 
transfer policies, in some instances 
bore at least surface similarity to 
the facts reported in Columbus Board 
of Education v. Penick, 443 U.S. 449 
(1979)y Dayton Board of Education v. 
Brinkman (il), 443 U.S. 526 (1979)? 
Keyes v. School District No. 1, 413
U.S. 189 (1973) ? and similar deci­
sions .

Seattle School District Brief at 4 n.3.
This admission is fully supported by and
consistent with the testimony of members of

23the Seattle School Board, itself.

School Board Member Cheryl Bleakney 
testified in her written statement as 
f o11ows:



73

Footnote 23 (cont.)
The Board had numerous discussions 
with our attorneys during the winter 
and spring of 1977, trying to assess 
our vulnerability to charges of segre- 
gatory acts, and the risks involved in 
federal court action. I believe we 
all wanted to avoid such time-consum­
ing and expensive litigation and the 
likelihood of court intervention in 
the educational management of our 
School District. Only one Board mem­
ber remained unconvinced that our 
action was necessary to avoid this 
eventuality. (J.A. 127.)

On cross examination by the attorney for 
the State, Ms. Bleakney testified:

Q. In the legal requirements that you 
were attempting to satisfy, the legal 
entanglement that you were attempting 
to avoid, were entanglements from 
direction of the federal government 
or private individuals or interest 
groups here in the Seattle area, were 
they not?A. Could you rephrase that, Mr. 
Murphy?
Q. You were a f r a i d  you were going to 
be sued?
A . Y e s .
Q. You were threatened with suit, in 
f a c t ?
A . Yes.
Q. The suit was coming either from 
the United States or from private 
groups, the Seattle Urban League, the 
N.A.A.C.P., et cetera, isn't that 
right?



A . Yes.
Q. You were threatened with suit, in 
fact?
A. Yes.
Q. The suit was coming either from 
the United States or from private 
groups, the Seattle Urban League, the 
N.A.A.C.P., et cetera, isn't that 
right?
A . Yes.
Q. So, that you adopted a plan and 
adopted a formula, a definition of the 
racial imbalance or racial desegrega­
tion, which was designed to avoid that 
lawsuit?
A. It was designed to withstand a 
lawsuit in case we were hauled into court.

(J.A. 12-13.)
Board Member Bleakney went on to testify 
that, "the overriding [reason for adopting 
the Seattle Plan] was the consequences of 
possible court action." (J.A. 17.)
Testifying further with regard to the 
reasons for the Board's adoption of the 
Seattle Plan, Ms. Bleakney stated:

Q. (By Mr. Hall) You took an oath of 
office when you became a School Board member?
A . Yes, sir.
Q. To, among other things, defend the 
Constitution of the United States and 
of the State of Washington?

Footnote 23 (cont.)



75
If evidence of unlawful segregation

beyond the admissions of the Seattle School
Board itself were required, the record
contains it, even though such evidence was
excluded from "Phase I," when the case was
bifurcated without objection by any 

24party. The United States' claim that

Footnote 23 (cont.)
A. Yes, I did.
Q. To what extent was that a material 
factor in regard to the decision to adopt the Seattle Plan?
A. For me, it was a factor, because 
after my readings of court cases 
involving other school districts, 
particularly in the northern United 
States, I felt we had a constitutional 
obligation to desegregate, and I felt 
an obligation to follow that dictate.

(J.A. 74.)
24In the district court, the Complaint in 
Intervention of the Seattle Plaintiffs, at 
11-17, alleged specifically that the racial 
segregation existing in the Seattle School 
District prior to adoption and implementa­
tion of the Seattle Plan was a direct 
result of purposeful acts and omissions of 
prior Seattle school boards. The Complaint 
in Intervention of the East Pasco Neighbor­
hood Council Plaintiffs, at 3-4, made 
similar allegations with respect to racial



76
no such evidence exists in the record is 
particularly troubling in view of the prior 
administrative actions of the United States 
government against the Seattle School 
District. For example, the affidavit of 
Marlaina Kiner, Director of the Office for 
Civil Rights of the United States Depart­
ment of Health, Education, and Welfare

Footnote 24 (cont.)
segregation within the Pasco School Dis­
trict prior to implementation of a deseg­
regation program in that city. Indeed, the 
United States Department of Justice indi­
cated Its intention to assist in the 
presentation of proof of past purposeful 
discrimination if necessary.

From the outset, the Seattle School 
District also alleged and maintained that 
racial imbalance in the district is 
substantially due to segregated housing 
patterns in the City of Seattle which are 
"the direct result of the racially dis­
criminatory past actions of constituent 
parts or agencies of the governments 
of the State of Washington and the United 
States of America, and of private persons 
and entities licensed by and subject to 
governmental regulation." Complaint at 
25.



77
outlines portions of that history, includ­
ing the Seattle School District's admitted 
practice of assigning minority teachers to 
identifiably "minority schools":

In early 1975, the Seattle School 
District made application for 
"basic" and "pilot" ESAA money for 
school year 1975-76. Regional OCR 
made a recommended determination, in 
connection with those applications, 
that the District was ineligible for 
ESAA funding as a result of discrim­
inatory assignments of teachers to 
schools, and failure to adequately 
identify and serve limited English- 
speaking national origin minority 
students. . . . As a result of the 
District's failure to submit an ESAA 
waiver application, I sent a letter 
to the District on July 28, 1975,

Footnote 24 (cont.)
The district court bifurcated the 

proceedings and limited the evidence in 
"Phase I” to Initiative 350's "facial" 
constitutionality. The proof of the 
intervenors* allegations of past purposeful 
segregation was reserved to "Phase II", 
which was not reached because of the 
district court's ruling in "Phase I". The 
United States supported and participated in 
the bifurcation of the case. It is, 
therefore, inappropriate for the United 
States to ask the Court to infer a factual 
conclusion from the absence of evidence 
that was excluded by a procedure adopted 
without objection from any party.



78
notifying it that it was in viola­
tion of Title VI of the Civil Rights 
Act of 1964 because of the same 
discriminatory faculty assignment 
practices which had rendered it 
ineligible for ESAA funding. My 
Office sought the District's volun­
tary compliance for seven (7) 
months, from July 28, 1975 but
failed to secure an acceptable 
faculty desegregation plan. On 
March 1, 1976, the General Counsel
of HEW commenced administrative 
enforcement proceedings against the 
District under Section 602 of the 
Civil Rights Act of 1964, based in 
part on the faculty assignment 
violation. On May 17, 1976, I
signed an agreement with the Dis­
trict adequately resolving the 
faculty assignment violation and 
promising speedy desegregation of 
the certified staff in the District.

(PI. Ex. 69, at 4-5; R. 691, 692). The
Marlaina Kiner affidavit continues:

Beginning in the Fall of 1976, 
following the May 1976 OCR-District 
agreement on desegregation of 
faculty, discussions within the 
Seattle District began anew as to 
the issue of student desegrega­
tion. (id- at 6.)

Those discussions as well as the investiga­
tion of the formal administrative complaint 
of the N.A.A.C.P., Seattle Branch, alleging 
past purposeful segregatory acts by the



79
Seattle School District (attached to PI. 
Ex. 69, at 12-15) were ultimately deferred 
by the written Memorandum of Agreement 
(also attached to PI. Ex. 69, at 16-20) 
between the Seattle School District and the 
Office for Civil Rights, following adoption 
of the Seattle Plan.

The denial by the United States of the 
existence of unlawful segregation in the 
Pasco District is most troubling. As noted 
earlier, even the State of Washington 
points in its brief to the glaring "invid­
ious and intentional racial discrimination" 
that is a part of the history of that 
city. That history flows in large
measure from a segregated housing pattern 
actually created by the federal government

25See, supra, at 12, quoting the State's 
Post Trial Brief in the district court 
asserting that the state defendants believe 
that Pasco's original segregation was 
"invidious and intentional."



80
when it selected Hanford as the site for 
the production of plutonium for the Manhat­
tan Project in 1943. Employment opportu­
nities for that project brought blacks to 
the Tri Cities. Richland was then a 
federal government-owned town and under 
rigid federal housing regulations which 
excluded blacks. (J.S. A-9, § 4.1) The
Pasco Intervenor Plaintiffs/Appellees 
correctly state in their brief, at 20 
"[tjhere can be no genuine dispute about 
the constitutional duty to maintain a 
mandatory student assignment program in 
Pasco, considering the pattern of school 
construction."

CONCLUSION
The adoption and implementation of the 

Seattle Plan was the result of many fact­
ors including the courage and wisdom of 
local school officials. However, in the 
final analysis, the imputus for action was



81
the certainty that federal court interven-

2 6tion would be the price of inaction. 
Local school boards throughout the nation 
will look to the decision in this case to 
see if the Court's past demand for positive 
local leadership will be coupled with 
support for a board that took the Court at 
its word.

For the reasons stated herein, and in 
the briefs of the School District Appellees 
and the various amici supporting affirm­
ance, Initiative 350 violates the United 
States Constitution. It must, therefore, 
fall. The decision of the court of appeals 
should be affirmed.

2 fiA. Siqueland, Without a Court Order: The
Desegregation of Seattle's Schools, (1981), 
at 185.



82
DATED this 25th day of January, 1982.

Respectfully submitted, 
MacDONALD, HOAGUE & BAYLESS

By_________________________FREDERICK L. NOLAND 
Attorneys for Seattle 
Intervenor Plaintiffs/ 
Appellees 
(206) 622-1604
PHILIP L. BURTON 
BURTON, CRANE & BELL 
800 Fifth Avenue Plaza 
Suite 3500
Seattle, Washington 98104
WILLIAM H. NEUKOM 
SHIDLER, McBROOM,
GATES & BALDWIN 
1000 Norton Building 
Seattle, Washington 98104
WILLIAM L.E. DUSSAULT 
219 East Galer Street 
Seattle, Washington 98102
THOMAS A. LEMLY 
DAVIS, WRIGHT, TODD, RIESE 

Sc JONES
4200 Seattle-First NationalBank Building
Seattle, Washington 98154
JAMES S. ROGERS 
FRANCO, ASIA, BENSUSSEN COE 

Sc FINEGOLD
13th Floor, Tower Building 
Seattle, Washington 98101



APPENDIX
WASHINGTON HUMAN RIGHTS COMMISSION 

^ S O L U T I O N
WHEREAS, the Washington State 

Human Rights Commission has exercised 
its authority under RCW 49.60 by 
adopting WAC 162-28-030 to deal with 
discrimination in public schools? 
and

WHEREAS, the Washington State 
Human Rights Commission and the 
Washington State Board of Education 
signed a Joint Policy Statement in 
1970 and jointly revised the Statement 
in 1973 and 1979 on school desegrega­
tion? and

WHEREAS, the Joint Policy State­
ment of the Washington State Human 
Rights Commission and Washington State 
Board of Education declares that it is 
incumbent upon the public schools in 
Washington State to develop programs 
which lessen the effect of racial 
prejudice and segregation and that it 
is the responsibility of school boards 
to assign pupils to buildings in ways 
which result in the desegregation of 
the public schools? and

WHEREAS, it is the position of 
the Washington State Human Rights 
Commission that the attempts of the 
Seattle, Tacoma and Pasco School 
Districts to desegregate the public 
schools in the State of Washington 
through mandatory pupil reassignment 
were made in part to comply with 
the Washington State Law Against 
Discrimination? and



A-2
WHEREAS, it continues to be 

the position of the Washington State 
Human Rights Commission that Initi­
ative 350 conflicts with the Washing­
ton State Law Against Discrimination; 
and

WHEREAS, it continues to be 
the position of the Washington State 
Human Rights Commission that Initi­
ative 350 is invalid because it 
violates the Equal Protection Clause 
of the 14th Amendment of the United 
States Constitution; and

WHEREAS, at its duly constituted 
public meeting in Seattle, Washington 
on December 17, 1981, the Washington 
State Human Rights Commission voted 
affirmatively to write a Resolution 
stating that

"...the Commission feels that 
Initiative 350 is inconsis­
tent with the State Law Against 
Discrimination for the same 
reasons stated in the 1979 Brief 
of Amicus Curiae on this subject; 
that the Commission's position as 
stated in the 1979 Brief remains 
their position today..."
NOW, THEREFORE, BE IT RESOLVED, 

that the Washington State Human Rights 
Commission affirms its opinions and 
positions as set forth in its 1979 
Brief of Amicus Curiae, filed in the 
United States District Court, Western 
District of Washington, in the case of 
Seattle School District No. 1, et al. 
v. State of Washington, et al., Case 
No. C-78-753; and



A-3
BE IT FURTHER RESOLVED, that the 

Washington State Human Rights Commis­
sion affirms its position that school 
desegregation is essential in order to 
comply with the Washington State Law 
Against Discrimination; and

BE IT FURTHER RESOLVED, that 
it is the position of the Washington 
State Human Rights Commission that 
Initiative 350 is inconsistent with the State Law Against Discrimination.

Signed this 14th day of January,
1982.

_________________ !jJ_____________________SYMONE SCALES, CHAIRPERSON 
Washington State Human Rights Commission
_________________ /s /____________________JOE TRIM, MEMBER
Washington State Human Rights Commission
_________________ Is/____________________RITA DURAN, MEMBER
Washington State Human Rights Commission
_________________ l*L____________________RON TAKEMURA, MEMBER
Washington State Human Rights Commission
_________________ IbI____________________EDITH KOGENHOP, MEMBER 
Washington State Human Rights Commission