Amaker Statement on Mrs. Boynton's Visit to NYC

    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

REPLY BRIEF OF APPELLANTS

Kenneth O. Eikenberry,
Attorney General,

Malachy R. M urphy,
Deputy Attorney General,

Counsel of Record

T homas F. Carr,
Senior Assistant Attorney General,

T imothy R. Malone,
Assistant Attorney General,

Attorneys for Appellants,
State of Washington, et al.

Office and Post Office Address:
Temple of Justice 
Olympia, Washington 98504 
(206) 753-2552

STATE PRINTING PLANT 3 OLYMPIA, WASHINGTON



IN THE

SUPREME COURT
OF THE

UNITED STATES

OCTOBER TERM, 1981

State of W ashington, 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

REPLY BRIEF OF APPELLANTS

Kenneth 0 . Eikenberry,
Attorney General,

M alachy R. Murphy,
Deputy Attorney General,

Counsel of Record

T homas F. Carr,
Senior Assistant Attorney General,

T imothy R. Malone,
Assistant Attorney General,

Attorneys for Appellants,
State of Washington, et al.

Office and Post Office Address: 
Temple of Justice 
Olympia, Washington 98504 
(206) 753-2552



TABLE OF CONTENTS
Page

INTRO D U CTIO N .........................................................................  !

I. Inititative 350 Does Not Embody a Racial 
Classification Nor Was It Adopted For A
Discriminatory Purpose.....................................................  6

A. The Relationship Between The “Classification”
Issue And The “Purpose” Issu e ........................... 6

B. The Fact That The Initiative Was Prompted By
The Seattle Plan, Does Not Show A Racially Dis­
criminatory Purpose....................................................  8

C. If The State Cannot Limit Extra-neighborhood 
Student Assignments, Who Can? The Issues of 
State Control Versus Local Control and State
Intrusion Into Local Affairs.................................... 10

II. The Initiative Does Not Resegregate Any School 
District In The State of Washington......................... 13

III. The “Overbreadth” Issue................................................ 17

CONCLUSION...........................................................................  18

TABLE OF CASES
Arlington Heights u. Metropolitan Housing Development 

Corp., 429 U.S. 252 (1977).................................................... 7 ,9 ,19

Brown v. Board of Education, 347 U.S. 483 (1954)____ 6, 7

Dayton Board of Education v. Brinkman, 433 U.S. 406 
(1977).............................................................................................  11

Hunter v. Erickson, 393 U.S. 385 (1 9 6 9 )..............................6 ,7 ,8 ,
12,13,19

James v. Valtierra, 402 U.S. 137 (1971).............................  8, 9

Mandatory Bussing v. Palmason, 80 Wn.2d 445, 495 P.2d 
657 (1972)....................................................................................  12

Pasadena Board of Education v. Spangler, 427 U.S. 424 
(1976).............................................................................................  15

Personnel Administrator v. Feeney, 442 U.S. 256 
(1979)...................................................................................... 7, 8, 9,19

Swann v. Board of Education, 402 U.S. 1 (1 9 7 1 ).........  15

Washington v. Davis, 426 U.S. 229 (1976) ............. 7 ,9 ,10 ,19

l



Washington Statutes Pase
Chapter 340, Laws of 1981, §§ 87-91.............................  13

Initiative Measure No. 350 (Chapter 28A.26 
R C W ) ...................................................................................... Passim

Washington Revised Code § 28A.58.754 ..............................  13

United States Constitution
Fourteenth Amendment (Equal Protection 

Clause).....................................................................................3 ,11 ,17

Other Texts and Authorities 
Bell, Book Review, 92 H.L.R. 1826 (1 9 7 9 ).................. 5

Report No. 81-6, The Effect Of The Seattle Plan For 
School Desegregation On Achievement Test Scores. . 5

li



No. 81-9

IN THE

SUPREME COURT
OF THE

UNITED STATES

OCTOBER TERM, 1981

State of W ashington, et al.,
Appellants,

v.

Seattle School District N o. 1, et al.,
Appellees.

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

CIRCUIT

REPLY BRIEF OF APPELLANTS

INTRODUCTION
This case involves a clash between school officials and 

the voters of the State of Washington on a critical issue of 
social policy.1 But contrary to appellees contention, it does 
not involve as well a clash between the voters and the con­
stitutional rights of its minority children, as should 
become clear to this Court.

We do not propose to show that the policy adopted by 
the voters in Initiative 350, which overrode that adopted 
by the school officials, was the wisest or even the 
preferable policy. Just as one can always argue whether the

'We use the broader term “social” rather than “educational” policy 
for the clash involves, as we shall see, fundamentally different views as 
to the proper role of an educational system.



2

voters’ choice of a president, governor, or legislator is the 
preferable choice, so too here. Whether the voters’ choice 
was the best or not is probably unresolvable. The relevant 
question is whether it was constitutionally theirs to make 
in the first place.

The policy question and the constitutional question, 
however, cannot be completely divorced. Indeed, an exami­
nation of the relationship between the two raises the 
principal issues upon which we focus in this reply, as we 
take up the various points made by the appellee school dis­
tricts.

First, we examine the relationship between the issue 
of improper statutory classification (albeit covert as 
appellees now admit) and the issue of improper purpose, 
and ask in light of that examination: Are the two issues re­
ally separate? Is not the charge of an improper covert clas­
sification, analytically, the same as the charge of improper 
purpose? And more importantly, does not the overt classi­
fication which the Initiative actually makes belie the 
charge of improper purpose?

Admittedly, Initiative 350 was prompted by, and in 
that sense aimed at, the Seattle Plan. But what, in the vot­
ers’ minds, was wrong with the Seattle Plan, as shown by 
the Initiative itself, and particularly by the classification 
that it makes? What feature of the Seattle Plan was it that 
prompted the Initiative? These questions bring the classi­
fication issue and the issue of improper purpose into focus 
and will show that they are not really distinct. In turn, 
they will provide no basis for invalidating the Initiative.

This first line of inquiry leads to the second: In what 
precise sense is the policy decision adopted through the 
Initiative “ race conscious”? After all, the Initiative was 
proposed in response to another decision that was unques­
tionably “race conscious” ; i.e., the adoption of the Seattle 
Plan itself and the departure from the traditional neigh­
borhood school assignment policy which it embodied. Does 
this unavoidable element of “ race consciousness” in the 
adoption of the Initiative make it constitutionally 
impermissible for the voters?

Next, we ask: If the voters of the State cannot



3

override the policy decision made by the school officials in­
volved in this litigation—and especially that made by the 
Seattle School District officials—is there anyone who can 
override that decision? Can those very same officials do 
so? And if they can, why cannot the voters themselves? By 
what constitutional analysis is this power to override given 
to the one group, and not to the other? This question is 
particularly important where, as here, the policy being re­
scinded was not itself constitutionally required in the first 
place.

There is another facet to this problem, best 
illustrated by the claim of Seattle School District. That 
claim, in essence, is that Initiative 350 is unconstitutional 
because it prevents the District from attaining the precise 
racial balance prescribed by the specific percentages es­
tablished for Seattle. But what is it in the Fourteenth 
Amendment’s Equal Protection Clause which provides 
that protection to these percentages? If they (or any per­
centages) are so protected, can the voters change them so 
as to require a lesser level of racial balance? More impor­
tantly, can even Seattle School District change them? Is 
the Fourteenth Amendment in effect a legal ratchet which 
allows changes in the percentages only in one direction, if 
by the voters, but in both directions if by the District 
itself? We will explore these questions as well.

Lastly we again examine the “overbreadth” issue to 
show that, viewed in its proper perspective (i.e., from the 
perspective of the constitutional and statutory rights of 
school children) it is really a “non-issue,” the resolution of 
which will only determine a constitutionally insignificant 
procedural issue; i.e., who might bring the next possible 
round of litigation.

Before taking up these points, however, one question 
should be addressed at the outset: If the Initiative is 
upheld, what will be the effect on the education of 
minority children, so far as the record tells us?

For minority children in the Pasco School District,



4

the result will be that they are no longer bussed to the 
other end of the school district and are instead free to at­
tend the two or three schools closest to their own neighbor­
hood. At the same time majority children in Pasco, if the 
district determines to maintain its precise percentages, 
will, for the first time be required to ride the bus to the 
next nearest school. (See, App. Br. 16, and JA 53). 
Whether they would receive a better education there than 
that which they are receiving now is not known.

For minority children in the Tacoma School District, 
the result would be no change whatsoever. (See, App. Br. 
17-18).

For minority children in the Seattle School District, 
the answer depends upon the decisions which the District 
and the students (and their parents) would make.

How close Seattle might come to its own definition 
within the limitations of the Initiative is impossible to de­
termine, because the answer principally depends upon two 
factors: The success or lack thereof for the voluntary pro­
grams, and the District’s own policies regarding school clo­
sures. Because of its declining enrollment, school closures 
are economically necessary, though politically difficult. 
(C/., FF 3.9).2 Closing schools which would not meet the 
District’s criteria for racial imbalance would obviously 
bring the District much closer than would closing those 
which do meet them.3

So much for the numbers—or lack thereof. What does 
all this mean in terms of the quality of education which 
would be received by minority students in Seattle if the 
Initiative were upheld?

No one really knows. But an indication may be found
2This stems, of course, from parents’ strong belief in neighborhood 

schools, and can hardly be gainsayed. It comes from minority as well as 
majority parents. However, when some schools must be closed 
nevertheless, because of declining enrollments, the only question is 
which schools must be closed. And that choice is the District’s, and will 
effect the degree of racial balancing.

3A11 of this is dependent upon one critical factor. Seattle 
presupposes that they are under an affirmative duty to meet that 
specific level of balance. We submit they were not, and are not now. 
That, of course, is the core question the Court must answer. (See pp. 13- 
17, infra)



5

in a report referred to, though not identified, in appellees’ 
brief.4 In August of last year, Seattle issued Report No. 81- 
6, entitled “The Effect of the Seattle Plan for School De­
segregation5 on Achievement Test Scores.” The reason for 
the study covered in the report is states as follows:

“ One of the frequently asked questions is, ‘What 
effect has desegregation had on student 
achievement?’ It should be remembered that the goal 
of the Seattle Plan was to eliminate racial 
imbalance; not to raise achievement levels. 
Nevertheless, some concern has been expressed that 
desegregation might somehow lower achievement 
levels for some students. The report addresses this 
concern.” (Emphasis supplied.)
The report concludes:
“ The purpose of the Seattle Plan was to reduce 
racial imbalance in the schools. Achievement of that 
goal has demonstrated the Plan’s success. Any effect 
of the Plan on achievement test scores is irrelevant 
to evaluation of the Seattle Plan i t s e l f (Emphasis 
supplied)
This is hardly a ringing endorsement for the Seattle 

Plan as a means of attaining higher achievement levels, 
and falls considerably short of showing a significant 
correlation between levels of racial balance and levels of 
educational achievement.

But even more importantly, the report shows that the 
Seattle Plan embodies a particular educational—or rather 
social—policy: Racial balance must be achieved, even 
when not constitutionally required, simply as a matter of 
good social policy, completely independent of the actual 
results on educational achievement.6

“See, SD Br., 14, note 15: “Test scores in Seattle have slightly im­
proved.” This 1981 report would appear to be the source for that stat- 
ment.

5This term itself assumes a legal conclusion which is at the heart of 
this litigation. See discussion pp. 13-17, infra.

6One is reminded of Dean Derrick Bell’s comment on Gary Orfield, 
who was one of the appellees’ witnesses in this case: “But school inte­
gration for liberal campaigners like Orfield is too important to confuse 
with education.” See, Bell, Book Review, 92 H.L.R. 1826, 1836 (1979) 
reviewing Orfield’s “Must We Bus?”



6

This may indeed be sound social policy. The question, 
however, is whether it is to be embedded in the 
requirements of the Fourteenth Amendment.

The Seattle Plan, we should add, does not reject the 
values inherent in a neighborhood school policy; nor does 
the Initiative reject the values inherent in increased racial 
balance. The critical difference lies rather in the different 
weights each assigns to these competing values, and in the 
accommodation that they strike.

Thus, the Initiative allows mandatory assignments to 
the next nearest school, for the purpose of achieving racial 
balance, or for any other purpose. Similarly, decisions as to 
which schools should be closed and where new schools 
should be located will have a substantial impact upon the 
level of racial balance; and the Initiative does not control 
those decisions in any way. So too the Seattle Plan manda- 
torily assigns not just individual students, but “ entire 
neighborhoods of students” away from their nearest or 
next nearest school. (FF 6.11, J.S. A-17) And as we have 
seen, one of the justifications for such mandatory 
assignments is the opposition to school closures from 
neighborhood groups which purportedly make school 
closures an impracticable tool for achieving racial balance. 
(See, FF3.9.)

We now turn to the legal issues.

I. INITIATIVE 350 DOES NOT EMBODY A 
RACIAL CLASSIFICATION NOR WAS IT 
ADOPTED FOR A DISCRIMINATORY PUR­
POSE.

A. The R ela tion sh ip  B e tw e e n  the “C lassi­
fica tion ”  Issu e  and the “P u rp o se ”  Issue.

The reason for the school districts’ efforts—so far 
successful—to establish that the Initiative embodies a 
racial classification is readily understandable. Once such a 
classification is found it is invariably fatal to the law or 
other governmental decision under attack. See, e.g., Brown 
v. Board of Education, 347 U.S. 483 (1954), and Hunter v.



7

Erickson, 393 U.S. 385 (1969). In contrast, attacks 
grounded on a charge of racially discriminatory purpose 
have, in recent cases, failed. See, e.g., Washington v. 
Davis, 426 U.S. 229 (1976) and Arlington Heights v. Me- 
troplitan Housing Development Corp., 429 U.S. 252 
(1977), cf., Personnel Administrator v. Feeney, 442 US. 
256 (1979).

Certain portions of the school districts’ brief, 
however, raise the question: Are the two arguments really 
distinct? In arguing that the Initiative creates a racial clas­
sification, they state: “ It [the Initiative] is race-conscious 
in its history and race-related in its purpose and effect.” 
(SD Br. 18, emphasis supplied.) The Initiative’s 
classification, it is argued, is “ covert” (SD Br. 21), and 
must be judged on the basis of its “objective.” (SD Br. 21). 
Similarly, under this same argument, the school districts 
emphasize “ the potential for corruptive influence of 
prejudice.” (SD Br. 24).

This suggests that the school districts’ “ classification” 
argument and its “purpose” argument are not really all 
that distinct— and indeed they are not. The search for a 
“ covert” classification is really the search for an improper 
purpose.

We suggest that the focus instead be upon a 
somewhat different distinction which, though not 
altogether tidy, may be analytically more useful. That dis­
tinction would be between (1) governmental decisions 
which are per se violative of the Fourteenth Amendment 
regardless of motive and (2) those which are 
constitutionally permissible, in and of themselves, but may 
be invalidated because of the reasons or motives behind 
their adoption. Brown v. Board of Education and Hunter 
v. Erickson would illustrate the first category of cases; and 
Washington v. Davis, Arlington Heights, and Feeney the 
second.

When we say that the Initiative does not embody a 
racial classification we are saying only that it is a govern­
mental decision which falls into the second category and 
not the first. More specifically, we are saying that a gov­
ernmental decision to prohibit mandatory assignments



8

beyond the next nearest school except for reasons related 
to the individual needs of the student is, in and of itself, 
perfectly permissible. It is not off limites to the 
government’s decision-making process. It is, in this 
respect, no different from a decision to give a veterans’ 
preference in employment, (c/., Feeney) or to require 
minimum literacy requirements for applicants to a police 
force. (Davis). But just as in Feeney and Davis, so too here 
a racially discriminatory purpose may invalidate that 
decision. And whether one couches the legal result in those 
terms, or in terms of a “ covert” classification, is really 
beside the point.

This is perhaps best illustrated by comparing Hunter 
v. Erickson, supra, with James v. Valtierra, 402 U.S. 137 
(1971). In Valtierra, it will be recalled, the lower court had 
invalidated, on the basis of Hunter, an amendment to the 
California constitution requiring local voter approval for 
any low-rent public housing project. In reversing, this 
Court stated: “The present case could be affirmed only by 
extending Hunter, and this we decline to do.” 402 U.S. at 
141.

The Court did not engage in a search for a “ covert” 
classification or attempt to determine whether the 
classification actually made by the amendment, though 
nonracial in “ form,” was racial in “ substance.” (C/., SD Br. 
21). Rather, it went directly to the question of whether the 
amendment was “ aimed at a racial minority,” i.e., the 
question of discriminatory purpose.

The Court should take the identical approach here.

B. The Fact that the Initiative was Prompted 
by the Seattle Plan D oes not Show a Racially D is­
criminatory Purpose.

The school districts’ principal contention as to 
racially discriminatory purpose, however phrased, really 
sifts down to a single assertion: The Initiative was 
intended to impede the Seattle Plan, and any other plan 
which relied upon mandatory extra-neighborhood student 
assignments to achieve racial balance. Indeed, this effect



9

on the Seattle Plan was the basis for the District Court’s 
finding that a discriminatory purpose existed. (See, J.S. A- 
24).

But this overlooks the critical question: Is the objec­
tionable feature of such plans that they achieve greater 
racial balance than would exist without them? Or is it that 
they mandatorily assign students outside their 
neighborhoods, without any justification in terms of the 
specific needs of specific students?

The classification established by the Initiative itself 
provides a large part of the answer. It shows that the ob­
jectionable feature was not the former but the latter. This 
is shown by the fact that the scope of the Initiative is not 
limited to plans for attaining racial balance, such as the 
Seattle Plan, but covers all extra-neighborhood mandatory 
assignments, for whatever reason, unless they can be 
justified in terms of specific needs of specific students.7

The Initiative no more evidences an intent to 
discriminate than did the constitutional amendment 
involved in Valtierra, the test for police force applicants 
involved in Davis, the zoning decision in Arlington 
Heights, or the veterans’ preference provision involved in 
Feeney. And the burden of showing such an intent remains 
with the appellee school districts, just as it remained with 
the plaintiffs in those four cases. They simply have not 
met that burden.

In attempting to meet that burden, the school 
districts also face a major factual hurdle: In the campaign 
for Initiative 350 the Initiative’s sponsors made no appeals 
to racial bias, and in fact deliberately took steps to avoid 
race becoming an issue. (FF 7.27, 7.29, J.S. A-23). Indeed, 
as we earlier pointed out, advertising and public relations 
witnesses called by both sides gave unrebutted substantive 
testimony that a statewide campaign in favor of a ballot 
proposition would lose support in Washington if designed

’Compare FF 8.3 and 8.8 (JS A-24) and the District Court’s use of 
the qualifiers “most,” “major” (FF 8.3) and “almost all” (FF 8.8). That 
bussing of students for purposes other than racial balance was taking 
place in Washington, which would be precluded by the Initiative, was 
demonstrated in the record, as the District Court acknowledged. See JS 
18, St. Br. 10, N. 6.



10

to appeal to segregative and racist attitudes. (Tr., pp. 496- 
98, 505-06, 509-11, 538; JA 21, 26; Ex. 2)

This does not mean that some of the voters were not 
influenced by racial bias. It does show, however, that such 
bias was in no way a decisive factor in the Initiative’s suc­
cess.8 Indeed, the converse is shown; lack of bias was the 
decisive factor. And it further shows what should be 
obvious from the Initiative itself, and from any balanced 
view of the record. To the extent that the voters 
considered race at all, they decided that any benefits from 
increased racial balance stemming from extra­
neighborhood school assignments were outweighed by the 
benefits of a policy allowing the choice of one’s 
neighborhood school.

The school districts simply suggest that the Initiative 
is nevertheless invalid because it was “ race conscious.” 
Certainly, because it was developed as a response to the 
Seattle Plan which was itself “race conscious” a 
corresponding element of race-consciousness was 
inevitable. But this factor should no more invalidate the 
Initiative than it should invalidate the Seattle Plan itself. 
The critical question is the role which this race- 
consciousness played in the decision-making process. Did 
it lead to the adoption of the Initiative for a discriminatory 
purpose? As we have seen, it did not. And the school dis­
tricts’ efforts to equate race consciousness with 
discriminatory purpose only confuse the issues, by 
substituting “buzz” words for legal analysis.

C. I f  the State Cannot Limit E xtra­
neighborhood Student Assignments, who can? 
The Issues o f State Control Versus Local Control 
and State Intrusion into Local Affairs.

The issue of discriminatory purpose is next examined 
from another aspect. Under the opinion of the Court of 
Appeals, Seattle could completely dismantle its own plan, 
and revert back to its prior policy of a neighborhood school

8As Justice Stevens has reminded us: “A law conscripting clerics 
should not be invalidated because an atheist voted for it.” Washington 
v. Davis, 426 U.S. at 253.



11

system, at least absent any prior de jure segregation. J.S. 
App. B-10. And on this point, the Court of Appeals was 
correctly following this Court’s opinion in Dayton v. Board 
of Education v. Brinkman, 433 U.S. 406 at 414 (1977).

But if the arguments of the school districts on the 
issue of discriminatory purpose are correct, then the Court 
of Appeals (along with this Court in Dayton) was 
incorrect, and Seattle would be forever precluded from dis­
mantling its plan, even though it had no constitutional ob­
ligation to adopt it in the first place. For if Initiative 350 
was discriminatory in purpose only because it embodied a 
decision to undo the racial balance brought about by the 
Seattle Plan, the same decision, with the same effect, must 
also be discriminatory when made by the school board 
members themselves, rather than the voters.

Similarly, if the Initiative is unconstitutional because 
it deprives minority groups of educational benefits 
stemming from increased racial balance brought about by 
the Plan, then it should also be unconstitutional for the 
school board to do the same thing. If it is discriminatory 
for the voters to change the accommodation between 
neighborhood schools and racial balance struck by the 
Seattle Plan by assigning more importance to 
neighborhood schools, it should be discriminatory for the 
school board to do so as well. The school districts’ 
arguments as to discriminatory purpose, in short, prove 
too much. They permanently would lock in all efforts to 
achieve racial balance even where not constitutionally 
required in the first place. This Court, however, has never 
given such an effect to the Fourteenth Amendment and, as 
pointed out by the Court of Appeals, has indicated in Day- 
ton that it has no such effect.

And quite wisely so, in our view. If efforts to achieve 
greater racial balance were constitutionally irreversible, 
that would be a great disincentive to undertake such 
efforts in the first place.9

9Not only would efforts to achieve racial balance in schools be 
impeded, but governmental efforts to promote those programs generally 
described as “affirmative action” would logically be irreversible as well, 
and for that reason similarly impeded.



12

There is, to be sure, a further argument offered by the 
school districts which does not have this boomerang effect. 
For it involves a theory which would, if accepted, 
invalidate Initiative 350 without also prohibiting Seattle 
itself from adopting the same policy as that embodied in 
the Initiative. The argument is that the Initiative skews 
the political process in the same manner as it was skewed 
in Hunter. But let us see if this parallel really exists.

The constitutional violation in Hunter was not that 
the Akron open housing ordinance was repealed. Clearly 
the Akron city council could have repealed it without vio­
lating the Fourteenth Amendment, and so could the voters 
themselves, through the referendum process (393 U.S. 390, 
note 5). The constitutional violation rather involved the 
procedures for restoring that ordinance. Those procedures 
established a “gauntlet,” i.e., the necessity of an automatic 
referendum to the voters, which no other ordinances 
relating to housing— and indeed, no other types of 
ordinances at all— had to run. (393 U.S. at 390, 391)

The school districts contend that the Initiative has 
created a similar gauntlet which must be run only by the 
proponents of extra-neighborhood mandatory assignments 
for racial balance.

We have already touched upon one reason why it does 
not. The proponents of extra-neighborhood mandatory as­
signments for several reasons must now, under the 
Initiative, convince the legislature or the voters of the 
merits of their cause, unless the reason can be found as an 
exception within the Initiative justified in terms of specific 
needs of specific students.

The parallel fails for two additional reasons. The op­
ponents of the Seattle Plan simply did not have available 
to them a local referendum procedure similar to that 
available in Akron. The only choice they had in presenting 
their case to the voters was the choice they actually 
made— a statewide initiative.10 They changed the locus of 
the decision-making process from the local to the state 
level because State law made that their only choice.

10Citizens Against Mandatory Bussing v. Palmason, 80 Wn.2d 445 
at 449, 495 P.2d 657 (1972).



13

Consider the supposed parallel next from the point of 
view of the proponents of extra-neighborhood mandatory 
assignments, rather than that of the opponents. It is not 
just minority groups that must make their case on the 
state level in order to bring about what they perceive to be 
educational improvements. (See generally, State Br. 21, 22; 
U.S. Br. 21-24.) If any group, minority or not, wishes major 
curriculum changes, they must change state law. See 
Wash. Rev. Code § 28A.58.754. If they want lower ratios of 
students to classroom teachers, or if they believe those 
teachers are inadequate because they are underpaid, they 
must look to the legislature. (See §§ 87-91, chapter 340, 
Laws of 1981, establishing funding levels in terms of salary 
levels and student-staff ratios.) Likewise, they must look 
to the legislature if they wish to assure more hours of in­
struction for their children.

What we are saying, quite simply, is that because of 
the State’s constitutional “paramount duty” in the field of 
education, broad state control over the decisions of local 
school boards is the norm, not the exception. And for this 
reason, as well, the parallel with the situation in Hunter v. 
Erickson does not exist.

II. The Initiative Does Not “R esegregate” 
A ny school District in the State o f  Washington.

At page 2 of the Brief of Appellees, the school 
districts make the following statement which they 
characterize as part of the “historical background” of this 
case:

“The Seattle, Tacoma, and Pasco * * * districts
have determined that racial desegregation is an 
important educational goal. The overall education of 
students * * * suffers when schools are segregated,
* * * The greater the racial imbalance, the greater
the impairment. * * * Since the early 1960’s, these
public school districts have taken steps to reduce 
school segregation. * * * “Because the antibusing
statute in question arose mainly in opposition to 
effective desegregation in Seattle, events there must 
be recited in some detail.” (Emphasis added.)



14

The underscoring in this excerpt emphasizes a critical se­
mantical ambiguity which the districts have quite deliber­
ately—and so far, at least, successfully—sought to 
interject into this case since the very outset. The words 
“ segregation” and “racial imbalance,” one will note, are 
used interchangeably (as they have been throughout this 
litigation).

The inference to be drawn from repeated use of such 
words as “segregation,” “ segregated” and “ desegregation,” 
of course, is that de jure segregation (i.e., some form of 
dual school system, some officially imposed or sanctioned 
separation of the races) exists in all three districts 
compelling remedial action (i.e., steps taken pursuant to a 
constitutional duty) which is, according to appellees, 
frustrated by Initiative 350.

As much as these school districts may imply that Ini­
tiative 350 interferes with the performance of some consti­
tutional duty to remedy the effects of a dual school system, 
however, the instant case does not present that issue at all. 
There has been no showing that there is now or ever has 
been “ segregation” (in the sense of de jure segregation) in 
any of these districts or, for that matter, any other school 
districts in Washington. The only showing so far made is 
that the traditional and natural distribution of students in 
Washington’s 300 school districts results in a condition in 
three of those districts which, according to differing ad­
ministrative formulae developed by those districts, could 
be described as racial “ imbalance” in their respective 
student populations.

The districts have strived mightly to insure that this 
particular element of confusion remains ingrained in any 
analysis of the pivotal issue of this case, for the policy un­
derpinnings of their position depend upon its presence. 
Their insistence upon the presence of some affirmative 
constitutional duty on the part of individual school board 
members, for example, is predicated on equation of the 
terms “ racial imbalance” and “de jure segregation.” And 
the validity of their contention that Initiative 350, if im­
plemented in Seattle, will somehow accomplish 
“ resegregation” of Seattle’s schools depends absolutely on



15

some constitutional sanctity being accorded that district’s 
definition of “ racial imbalance” in its schools. Logically, 
their argument in this regard depends on some perfect 
equation of their own criterion for determining racial im­
balance in student distribution with the term 
“segregation.” To this extent, then, it is transparent that 
the position taken by the districts before this Court posits 
the existence of a constitutional standard of racial balance, 
a proposition specifically rejected by this Court in Swann 
v. Board of Education, 402 U.S. 1 (1971) and Pasadena 
Board of Education v. Spangler, 427 U.S. 424 (1976). In 
Spangler this Court noted at 427 U.S. 434 that:

“The District Court’s interpretation * * * appears
to contemplate the ‘substantive constitutional right 
[to a] particular degree of racial balance or mixing’ 
which * * * Swann expressly disapproved.”
If for no other reason, the weakness of their analysis 

is apparent from the fact that these formulae are eternally 
subject to change.

But there are other reasons. Even if the criteria for 
determining when Seattle’s schools suffer from “racial im­
balance,”11 or when Tacoma’s school children suffer from 
“ racial isolation” 12 or when Pasco’s schools are

“ The Seattle School Board currently defines “racial imbalance” as 
the condition which exists when:

“ * * * the combined minority enrollment in a school
exceeds the district-wide combined minority average by 20 
percentage points, provided that the single minority enrollment (as 
defined by current federal categories) of no school will exceed 50 
percent of the student body.”
FF 6.9. Under this definition, of course, a school where the relative 

school enrollment is one-third black, one-third Asian and one-third 
white majority, would nevertheless be “racially imbalanced” since the 
minority population would exceed the district-wide combined minority 
average by more than 20 percent. If, on the other hand, the combined 
minority population in the District some day exceeds 80 percent then, 
without a change in Seattle’s definition, a school which is one-third 
black, one-third Asian, one-third Hispanic, but which is not attended 
by a single white student, will nevertheless be “racially balanced,” and 
minority students in that school will not be “isolated” from white stu­
dents.

The District Court found that the Tacoma School District defined 
racially imbalanced schools as those which had a combined minority en­
rollment of 50 percent or more or a single minority of 40 percent or



16

“ segregated”* 13 were not subject to change by the several 
districts which have chosen to adopt them, they simply do 
not rise to the dignity of constitutional standards. They 
are too flawed.

The Seattle School District’s own expert witnesses 
testified, for example, that if the District had, instead, re­
quired that no school within the district could have a ma­
jority enrollment of less than 18 percent, then Seattle 
schools could all have been racially balanced (within the 
constraints of that criteria) under Initiative 350.14 In 
Pasco, a school which is perfectly “balanced” on a one-to- 
one basis (i.e., 50 percent minority students and 50 percent 
majority students) becomes “ segregated” if one more 
minority student is added to the student population.

The definition of “ racial isolation” adopted by the 
State Board of Education and the State Human Rights 
Commission leads to absurd results when applied in other 
major metropolitan areas throughout the State of 
Washington. In Spokane, for instance, where the combined 
minority population atthe time of trial was 7.05 percent, a 
student in a school which has a combined minority 
population in excess of 27.05 percent would suffer “ racial 
isolation.” Vancouver is an even more dramatic example of 
these senseless results. According to that criterion, a 
minority student in a Vancouver school which was fully 75 
percent majority would, nevertheless, be “ racially iso­
lated.”

The point is this. There are various definitions of 
“ racial balance,” “ racial isolation,” etc., in place in Wash­

more. FF 5.1. This is a correct finding, but the situation in Tacoma 
changed during the period immediately leading up to this litigation. 
The Tacoma School District’s definition of a “de facto segregated” 
school is determined by reference to the State Board of Education’s 
definition of “racial isolation.” When, in turn, the State Board changed 
its definition of “racial isolation,” the Tacoma School District 
immediately found itself with more “segregated” schools than it had 
previously (although no change in school enrollment had occurred). (Tr. 
386-88).

13The Pasco School District has never developed any working 
definition at all. It simply uses a federally-imposed guideline of 50 
percent minority enrollment as a breakpoint. (Tr. 624-28).

14Ex. 92, pp. 12-13.



17

ington’s school districts at this time. While some or all of 
them may make sense in some contexts, they are absurd in 
others. This fact underscores the correctness of this 
Court’s holding that no one of them is embodied as an un­
changeable standard incorporated into the Fourteenth 
Amendment. And because of this, it is absurd to argue that 
Initiative 350 will have any impact on “desegregation” in 
Washington.

III. THE “OVERBREADTH” ISSUE:
The School Districts’ claim of an affirmative 

constitutional duty to achieve greater racial balance has 
another facet which is especially important with respect to 
Seattle. While we have addressed this issue, with clarity 
we hope, in our opening brief, a few further thoughts seem 
warranted in light of appellees submissions.

On the issue of whether predecessor school boards in 
Seattle have committed acts of de jure segregation, the 
District is studiously ambivalent. (See SD Br. 4, note 3) It 
apparently wishes this Court to view it as being in 
precisely the same position as a school district which has 
been judicially determined to have committed such acts. 
At the same time, however, it apparently wishes to 
preserve the option of presenting a defense to any charges 
of de jure segregation in Phase II of this litigation, should 
that phase occur.

But if Seattle is to be viewed in the present phase of 
this litigation as being in the same position as a district 
which has been judicially determined to have committed 
such acts, then Seattle’s case is actually moot. For such a 
school district is simply outside the scope of the Initiative, 
as we have previously shown.

To keep its challenge to the Initiative from becoming 
moot, however, the Seattle School District suggests that 
the Initiative prevents the District itself from determining 
that it has committed such acts, and therefore has a con­
stitutional duty to adopt a remedy. (SD Br. 38-42)

The Office of the Attorney General does not so



18

construe the Initiative. (State Br. 37-40)15 But how does a 
constitutional issue arise if that construction is wrong? 
And what practical difference does it make as to who is 
correct on this issue of statutory construction?

If the members of the Seattle School Board make a 
good faith determination that their predecessors have 
engaged in acts of de jure segregation, one result is certain. 
They may continue the Seattle Plan without fear of any 
lawsuit from the Attorney General or any state agency.

This does not mean that Seattle’s determination is 
not subject to legal challenge. A student or parent remains 
free to sue the District and to obtain a judicial ruling that 
Seattle was wrong in its determination. But until that hap­
pens Seattle is entirely free to rely upon its good faith 
judgment that it must continue its policy of extra-neigh­
borhood assignments.

We again note, however, that this whole discussion is 
entirely academic. Phase II of this litigation has been de­
signed by the District Court to answer that very question, 
if necessary. Seattle need not speculate on who might sue 
them. They already know. The Seattle Intervenor- 
Plaintiffs already have.

The issue of the proper construction of § 6 is, in the 
final analysis, a “non-issue,” which has interesting 
procedural aspects, but no constitutional significance.

CONCLUSION
It should now be clear to the Court that upholding the 

validity of Initiative 350 will result in no retreat 
whatsoever from any of this Court’s prior desegregation

15The so-called Seattle Intervenor-Plaintiffs’ attempts to persuade 
the Court that our position on the false issue of overbreadth “lacks can­
dor” itself lacks the truthfulness which a submission to this Court de­
serves.

They claim that we somehow declined to give a formal opinion on 
the question of what a school district may lawfully do under Initiative 
350 to remedy de jure segregation, and thus ducked the question for 
purposes of this litigation. ACLU, et al., Br. pp. 51-57. An examination 
of the questions posed which were admitted as Ex. A-89 at tried shows 
clearly, however, that the Attorney General was not even asked that 
question.



19

cases. On the other hand, invalidation of Initiative 350 will 
result in an unwarranted extension of Hunter u. Erickson, 
and a retreat from the principles announced in 
Washington v. Davis, Arlington Heights and Personnel 
Administrator of Massachusetts v. Feeney.

Initiative 350 is remedial legislation, intended to 
restore the traditional neighborhood school policy in the 
State of Washington. It will not result in any 
“ resegregation” of schools in the State of Washington.

Respectfully submitted,

K enneth O. Eikenberry,
Attorney General,

M alachy R. M urphy,
Deputy Attorney General,

Counsel of Record,

T homas F. Carr,
Senior Assistant Attorney General,

T imothy R. M alone,
Assistant Attorney General.