Correspondence from Lani Guinier to Jerome Gray (Alabama Democratic Conference) Re Bozeman and Wilder v. Lambert

    No. 81!)

3it llfp g’ujirpiup (ttrnul uf l(/p lu ih f i g’lulrn
October T erm , 1981

S tate of W a sh in g to n , et al ., a it e l l a n t s

v.

S eattle S chool D istrict N o. 1, et al .

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

BRIEF FOR THE UNITED STATES

Rex E. Lee
Solicitor General

WM. B radford R eynolds 
Assistant Attorney General

L aw rence  G. W allace 
Deputy Solicitor General

R ichard  G. W il k in s
Assistant to the Solicitor General

C harles J u st in  Cooler 
Attorney
Department of Justice 
Washington, D.C. 205.10 
(202) 63.1-2217



QUESTION PRESENTED

Whether an initiative establishing a statewide neigh­
borhood school policy violates the Equal Protection Clause 
of the Fourteenth Amendment.1

1 Appellants also challenge an award of attorneys’ fees to parties 
other than the United States. The United States does not address 
that issue.

0 )





TABLE OF CONTENTS

Opinions b e low ........................................................................  1

Jurisdiction...............................................................................  1

Statement .................................................................................  2

Summary of argument .............................................................. 12

Argument .....................................................................................  15
I. Initiative 850 does not classify persons accord­

ing to race ....................................................-............  16

II. The State of Washington's adoption of a neigh­
borhood school policy imposes no special burden 
on racial minorities within the governmental 
process..........................................................................  16

III. Initiative 350 merely represents a constitution­
ally permissible policy decision. The fact that 
the State, rather than the local school district, 
made the final policy selection is of no federal 
constitutional significance........................................  31

IV. The other grounds relied upon by the District
Court do not support the conclusion that Initia­
tive 850 is unconstitutional...................................... 36

Conclusion................................................................................. 49

TABLE OF AUTHORITIES
Cases:

Aptheker V. Secretary of State, 878 U.S. 500 46
Arlington Heights V. Metropolitan Housing Devel­

opment Corp., 429 U.S. 252 .................................... 19
Austin Independent School District V. United

States, 429 U.S. 990 ................................. 15, 33, 38-39, 44
Barnes V. District of Columbia, 91 U.S. 5 4 0 ............  36
Bates V. State Bar, 433 U.S. 350 ...............................  46
Bivens V. Six Unknown Named Agents, 403 U.S.

388 ................................................................................. 37

Page

( i n )



Cases—Continued

IV

Page

Brinkman V. Gilligan, B03 F.2d 684.......................  16
Brinkman V. Gilligan, 618 F.2d 683, cert, denied,

423 U.S. 1000 ..................................................... 15
Broadrick V. Oklahoma, 413 U.S. 601 .......... -........  46, 47
Brown V. California, 627 F.2d 1221......................  16
Carlson V. Green, 446 U.S. 14 ................................. 87
Citizens Against Mandatory Bussing V. Palmason,

80 Wash. 2d 446, 496 P.2d 667 ...........................  24
City of Mobile V. Bolden, 446 U.S. 56 .................... 19
Columbus Board of Education V. Penick, 443 U.S.

449 .....................................................................  89
Dayton Board of Education V. Brinkman, 433 U.S.

406 ...................................................................... 32 ,33 ,41 ,48
Deal V. Cincinnati Board of Education, 369 F.2d

65, cert, denied, 389 U.S. 847 .................................. 16
Diaz v. San Jose Unified School District, 612 F.2d

411 ...........................................    16,39
Dreyer v. Illinois, 187 U.S. 7 1 ....................................  27
Estes V. Metropolitan Branches of the Dallas

NAACP, 444 U.S.........................................................  42
Fusari V. Steinberg, 419 U.S. 379 .............................  26
Fullilove v. Klutznick, 448 U.S. 4 4 8 ...........................  44
Gordon V. Lance, 403 U.S. 1 ........................................  18
Holt Civic Club V. Tuscaloosa, 489 U.S. 60 .............  27, 85
Hughes V. Superior Court, 839 U.S. 4 6 0 ................... 27
Hunter V. Erickson, 893 U.S. 886 ............................. passim
Hunter V. Pittsburgh, 207 U.S. 1 6 1 ...........................  86
James V. Valtierra, 402 U.S. 137 .............. 18,18, 28, 29,41
Keyishian V. Board of Regents, 885 U.S. 689 ..........  46
Lee V. Nyquist, 318 F.Supp. 710, aff’d, 402 U.S.

935 .....................................................   10 ,20 ,21 ,24 ,26
Lynch V. Overholser, 369 U.S. 705 ........................... 26, 45
Mandel V. Bradley, 432 U.S. 178   26
Morales v. Shannon, 516 F.2d 411, cert, denied, 423 

U.S. 1034 ......................................................................  15
Moses Lake School District No. 161 V. Big Bend

Community College, 81 Wash. 2d 651 ................ 22
NAACP v. Alabama, 377 U.S. 288.........................  46



V

NAACP V. Lansing Board of Education, 659 F.2d
1042, cert, denied, 484 U.S. 997 .............................  16

Newark V. New Jersey, 262 U.S. 1 9 2 ........................  86
New York Transit Authority v. Beazer, 440 U.S.

668 ................................................................................. 87
North Carolina Board of Education v. Swann, 402

U.S. 43 ......................................................................25, 26, 48
Ohralik V. Ohio State Bar Association, 436 U.S.

417 ................................................................................. 47
Pasadena City Board of Education V. Spangler,

427 U.S. 424 ..............................................................  48
Personnel Administrator of Massachusetts v.

Feeney, 442 U.S. 256 ............................. 17,19, 37, 39, 40
Pennhurst State School and Hospital V. Halderman,

No. 79-1404 (Apr. 20, 1981)   37
Regents of the University of California V. Bakke,

438 U.S. 265 ............................................................... 37
Reitman V. Mulkey, 387 U.S. 369 ...............................  32, 33
Seattle School District No. 1 V. Washington, 90

Wash. 2d 476, 685 P.2d 71 ................ .....................  22, 34
Schaumburg V. Citizens for a Better Environment,

444 U.S. 620 ...................    46
Swann V. Charlotte-Mecklenberg Board of Educa­

tion, 402 U.S. 1 ................................................ 31, 32, 34, 44
Sweezy V. New Hampshire, 854 U.S. 234 ................  27
Ulster County Court V. Allen, 442 U.S. 140 ............ 46, 47
United States V. Robel, 889 U.S. 258 ......................... 46
United States V. Texas Education Agency, 664

F.2d 162 ................................................. :................... 16,89
United States Civil Service Commission V. National

Association of Letter Carriers, 413 U.S. 548 .....  45
Village of Arlington Heights V. Metropolitan Hous­

ing Development Corp., 429 U.S. 252 ..................  14, 37
Washington V. Davis, 426 U.S. 229 ........................... 19
Washington V. Washington State Commercial Pas­

senger Fishing Vessel Association, 443 U.S. 658.. 26
Williams V. Mayor and City Council of Baltimore,

289 U.S. 36 .... ............................................................  85-36

Cases—Continued Page



VI

United States Constitution:
First Amendment.................................................... 14* 45, 46
Fourteenth Amendment................ 19, 20, 29, 31, 32, 45

Equal Protection C lause............................. passim

Wash. Const.:
Art. II:

§ 1 ..................................................................29, 34, 40
§ 41 ..................................................................  29

Art. IX:
§ 1 ......................................................................  13,21
§ 2 ......................................................................  21

Equal Education Opportunities Act of 1974, Title 
II, 20 U.S.C. 1701 et seq.:

20 U.S.C. 1701(a)(2) ........................................  IB
20 U.S.C. 1714(a) ............................................... 15

Wash. Rev. Code Ann. (1970 & Cum. Supp. 1981):
Tit. 28A ....................................................................  22
§ 28A.02.020 ...........................................................  22
§ 28A.02.050 .....................   23
§ 28A.2.60.010-2.60.900 ........................................  45
§ 28A.03.030 ...........................................................  22
§ 28A.04.120 ...........................................................  22
§ 28A.26.010 ...........................................................  7
§ 28A.26.030 ............................................................ 8 ,48
§ 28A.26.060 ...................................................8,12, 25, 48
§ 28A.41.250 ...........................................................  23
§ 28A.58.245 ...........................................................  23
§ 28A.58.704 ...........................................................  23
§ 28A.58.754 (3) ..................................:.................. 23
§ 28A.85.020 ...........................................................  23
§ 28A.87.220 ...........................................................  23

Wash. Admin. Code:
Tits. 180, 392 .........................................................  22
§ 180-30-040 .............................................................  23
§ 392-143-065 ...........................................................  22

Constitutions, statutes and regulations: Pag6



VII

Miscellaneous:
Armor, The Evidence on Busing, 28 Pub. Interest

90 (1972) ....................................................................  39
Bell, Book Review, 92 Harv. L. Rev. 1826 (1979) 39
Comment, Judicial Review of Laws Enacted by

Popular Vote, 66 Wash. L. Rev. 175 (1979) .....  29
N. St. John, School Desegregation Outcomes for 

Children (1975) .........................................................  39
Wash. Op. Att’y Gen.:

No. 1 (1975) ...........................................................  23
No. 65 (Part III) (1965-1966) .........................  24



3m life Supreme (Umirt nf life litlteh glutra
October Term, 1981

No. 81-9

State of Washington , et al., appellants

v.
Seattle School D istrict N o. 1, et al.

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

BRIEF FOR THE UNITED STATES

OPINIONS BELOW
The opinion of the court of appeals (J.S. App. B-l to 

B-29) is reported at 683 F. 2d 1338. The opinion of the 
district court (J.S. App. A-l to A-36) is reported at 473 
F. Supp. 996.

JURISDICTION
The judgment of the court of appeals was entered on 

December 16, 1980, and a petition for rehearing was 
denied on March 26, 1981 (J.S. App. E -l). A notice of 
appeal was filed on May 18, 1981 (J.S. App. D-l to D-6). 
This Court noted probable jurisdiction on October 13, 
1981. The jurisdiction of this Court is invoked under 
28 U.S.C. 1254(2).

( 1)



2

STATEMENT
This case, like Crawford V. Board of Education, No. 

81-38, involves a constitutional challenge to a state re­
striction on the use of mandatory nonneighborhood stu­
dent assignments to alleviate racial imbalance not caused 
by de jure segregation. Here, the challenged restriction 
was enacted shortly after Seattle School District No. 1, 
the State of Washington’s largest school district, aban­
doned its traditional policy favoring neighborhood schools 
and implemented a plan of race-conscious student assign­
ments to create racial balance in the district’s schools. 
A principal component of the plan was the mandatory 
busing of entire neighborhoods of students to schools be­
yond those closest to the students’ homes. Initiative 350, 
adopted by a majority of Washington voters at a state­
wide referendum, reversed the action taken by the school 
district by establishing a state educational policy favor­
ing neighborhood schools. The Initiative generally pro­
hibits mandatory busing beyond the nearest or next 
nearest school to a student’s home. The Seattle School 
District, joined by two other school districts and certain 
individual plaintiffs, commenced this litigation to chal­
lenge the constitutionality of Initiative 350. This case is 
here on appeal from the decision of the court of appeals, 
which concluded that, in adopting a statewide neighbor­
hood school policy, Initiative 350 violates the Equal Pro­
tection Clause of the Fourteenth Amendment.

1. Seattle School District No. 1, a municipal corpora­
tion created under the laws of the State of Washington, 
encompasses an area substantially coterminous with the 
City of Seattle (J.S. App. A-l to A-2). Racial minorities 
historically have accounted for a substantial proportion 
of the district’s enrollment (Pltf. Exh. 8). At pres­
ent, the district has an enrollment of approximately 
54,000 students, approximately 37% of whom are 
either black, Asian, American Indian or Hispanic (J.S. 
App. A-2). For at least the past 18 years, the district 
has taken steps to alleviate the isolation of these minori-



8

ties from the rest of the district's student community 
(J.S. App. A-14 to A-18).9

2. In April 1976, the district hired a new school super­
intendent and specifically directed him to devise a pro­
gram to racially balance the district’s schools (Moberly 
Affidavit at 1-2; Pltf. Exh. 6 at 7). The superintendent 
organized a special staff for that purpose, and conducted 
public meetings to discuss the approach to be taken by 
the district in promoting racial balance within its schools 
(Moberly Affidavit at 2-3). According to the superin­
tendent, these meetings stressed the use of voluntary 
strategies to achieve such balance (id. at 2).

During this period, substantial pressure was exerted 
on the district to take effective action to achieve racial 
balance (Moberly Affidavit at 4). Local or state affiliates 
of the National Association for the Advancement of 
Colored People, the American Civil Liberties Union and 
the National Urban League, as well as the Church Coun­
cil of Greater Seattle, each threatened to file suit should 
the district not make progress toward racial balance 
(id. at 4-5).* On May 25, 1977, the district received

9 In 1963, when racial minorities accounted for approximately 
16% of the districts enrollment (Pltf. Exh. 8), the district 
initiated a series of voluntary racial transfer programs (J.S. App. 
A-16). Under these programs, the district promoted and has con­
tinued to promote the transfer and transportation of students to 
schools outside their residential areas whenever such transfers 
have promised to alleviate racial imbalance (ibid.). These pro­
grams had approximately 1,400 participants in 1977 (Def. Exh. 
A-99 at Exh. H ).

*On April 20, 1977, the local branch of the NAACP filed an ad­
ministrative complaint with HEW’s Office for Civil Rights pursuant 
to Title VI of the Civil Rights Act of 1964. charging the district 
with having "taken action which it knew, or should have known, 
would have segregative results, in continuing or intensifying racial 
segregation in the Seattle Public Schools" (Pltf. Exh. 69 at 12-15). 
The complaint requested an administrative investigation and HEW 
scheduled such an investigation for the fall of 1978 (id. at 7, 15). 
The investigation was ultimately postponed as a result of the dis­
trict’s implementation of a mandatory busing program in September 
of 1978 (id. at 7-8, 16-18).



a letter from the mayor of Seattle and the presi­
dents of the Seattle Chamber of Commerce, the Munici­
pal League of Seattle and King County, and the Seattle 
Urban League, urging the district to adopt a definition 
of racial imbalance and to act to eliminate such imbal­
ance in Seattle through an effective program developed 
and adopted with extensive community involvement 
(Pltf. Exh. 11). On June 8, 1977, the district passed 
resolutions defining racial imbalance (Pltf. Exh. 9)* and 
committing the district to eliminate all such imbalance 
by the start of the 1979-1980 school year (Pltf. Exh. 10).“

In September 1977, a “magnet” schools program was 
implemented by the district (J.S. App. A-16). Developed 
in late 1976 and early 1977, the program involved sig­
nificantly enhancing the educational attractiveness of a 
number of schools, to which students could voluntarily 
transfer when their doing so promoted racial balance 
(ibid.). Approximately 2,600 voluntary racial transfers 
were produced by the program, surpassing the district’s 
goal of 1,000 transfers (Def. Exh. A-99 at Exh. H).f 
But, although a September 16, 1977 open letter to Seattle 
citizens from the district superintendent called the “sub­
stantial success” of the program “extremely encourag-

* "Racial imbalance” was defined as “the situation that exists 
when the combined minority student 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” (Pltf. Exh. 9 ). According to this definition, 
23 of the district’s 112 schools were at that time “racially imbal­
anced" (Pltf. Exh. 8).

6 The resolution directed the district superintendent to eliminate 
racial imbalance through continuation of the voluntary racial trans­
fer programs that had been in operation since 1963, through imple­
mentation of a magnet schools program, and through adoption, 
upon board approval, of such additional measures as were necessary 
(Pltf. Exh. 10).

• Other voluntary racial transfer programs in the district pro­
duced approximately 1,400 additional racial transfers in 1977.
See note 2, supra.

4



Ing” (id. at Exh. F ), the superintendent concluded that, 
because of demographic changes in the district, the pro­
gram was making little headway toward the achievement 
of racial balance (Def. Exh. A-118 at 50). The super­
intendent was of the opinion that approximately 8,000 
additional transfers would be needed (Def. Exh. A-99 at 
Exh. B), and district citizens were invited to participate 
in a series of community meetings scheduled for October 
and November 1977 to discuss how to achieve complete 
racial balance by the beginning of the 1979-1980 school 
year (id. at Exh. F ).

At the October and November meetings, the district 
presented for public response five alternative racial bal­
ancing plans considered capable of achieving the 1979-1980 
goal of complete racial balance (Def. Exh. A-99 at Exh. 
H). Three of the plans, each drafted by the district, 
relied on voluntary measures as a first strategy for 
achieving puch balance, with provisions for mandatory 
measures should the voluntary measures prove ineffective 
(ibid.). Two of the plans, one drafted by the district 
and one by the Seattle Urban League, placed primary 
reliance on mandatory measures (ibid.). After the meet­
ings, the district superintendent concluded that “the 
one thing that came through there was that everybody 
wanted a voluntary movement” (Def. Exh. A-118 at 
110); it was “quite evident” that the community favored 
a voluntary plan (ibid.).

Notwithstanding his perception of community desire, 
in late November the superintendent submitted a manda­
tory racial balancing plan to the district board of educa­
tion for its consideration. The plan, which had not been 
previously presented to the community, was labelled “The 
Seattle Plan” and relied on extensive mandatory student 
reassignments and busing to meet the board’s 1979-1980 
racial balancing deadline (J.S. App. A-17 to A-18).7 A

5

1 The superintendent recommended a mandatory plan because, 
based upon his opinion of the district’s ability to raise funds, “the 
only realistic and cost-efficient program was one which did not (1) 
require large yearly expenditures to attract and recruit voluntary



6
principal component of the plan, intended in part to 
achieve racial balance without destroying the students’ 
sense of their “ethnic identity” (Moberly Affidavit at 19; 
Pltf. Exh. 7 at 15), was the mandatory reassignment 
of entire neighborhoods of students to schools beyond 
those closest to the students’ homes (J.A. App. A-17 to 
A-18).

In early December, after the district superintendent’s 
recommendation had been made public, but before the 
board had met to vote on whether or not to adopt it, a 
number of Seattle parents met and organized a group 
called the Citizens for Voluntary Integration Committee 
(“CiVIC” ) (Pltf. Exh. 40 at Exh. 3). At the initial 
organizational meeting, the parents voiced objections to 
the mandatory Seattle Plan and called upon the school 
board “to delay their decision so we can present a truly 
voluntary program that will work” (ibid.). After the 
board approved a resolution on December 14, 1977, set­
ting forth and adopting the essentials of the mandatory 
Seattle Plan (Pltf. Exh. 12),8 CiVIC organized itself as a 
nonprofit corporation under Washington state law (Pltf. 
Exh. 40) and established an education committee to draft 
an effective voluntary racial balancing plan,® a legal 
committee to pursue an injunction against implementa­
tion of the mandatory Seattle Plan, and a legislative 
committee to draft a statewide initiative favoring neigh-

transfers or (2) incur the inefficiencies of such large-scale voluntary 
transfers before an inevitable ‘mandatory backup’ was utilized” 
(Moberly Affidavit at 9-10).

8 Members of CiVIC filed an unsuccessful state court suit to 
enjoin this action by the board. Roe V. Seattle School District No. 
1, King County Superior Court, Cause No. 838291. The board’s 
general counsel reported to the board prior to its approval of the 
resolution that the plaintiff's “were not quarreling with desegre­
gation and were not trying to prevent desegregation. They were 
merely quarreling with this specific plan implementation" (Def. 
Exh. A-99 ab Exh. J ). 9

9 CiVIC’s plan, announced in June 1978, called for achievement 
of racial balance through enhancement of educational programs 
and adoption of an “open enrollments policy (Pltf. Exhs. 49, 60).



7

borhood schools. See Pltf. Exh. 48. In March 1978, the 
district board formally adopted the Seattle Plan and 
made arrangements for its implementation at the begin­
ning of the 1978-1979 school year (J.S. App. A-17; 
Moberly Affidavit at 12).

Contemporaneously with the district’s formal adoption 
of the Seattle Plan, CiVIC launched its campaign for 
Initiative 350 (Pltf. Exh. 51).10 Drafted by CiVIC for 
submission to state voters at the 1978 general election 
(J.S. App. A-19), Initiative 350 provides that (Wash. 
Rev. Code Ann. § 28A.26.010 (Cum. Supp. 1981)) : “ [N]o 
school board * * * shall directly or indirectly require any 
student to attend a school other than the school which is 
geographically nearest or next nearest the student’s place

10 CiVIC conducted an intensive multimedia campaign for the 
Initiative in Seattle and across the state (Pltf. Exhs. 38, 39; Def. 
Exhs. A-118, A-114). The campaign urged citizens to vote for the 
Initiative because it would prohibit use of mandatory, nonneigh­
borhood measures to achieve racial balance (Pltf. Exh. 2). The 
campaign argued that such measures should be prohibited because 
they (1) increase racial imbalance by inducing “ ‘white flight’ ” (J.S. 
App. A -21); (2) reduce local control by parents over the education 
of their children (see, e.g., Pltf. Exh. 51 at 21) ; (3) are promoted 
by federal bureaucrats unconcerned with such local parental con­
trol ( ib id .); (4) do not measurably improve educational quality 
for either minority or majority students (id. at 28); (5) require 
large sums of money to be spent on transportation that could be 
better spent on education (id. at 11); and (6) are state financed and 
thus paid for by citizens statewide (ibid.). CiVIC maintained that 
the Initiative was constitutional because there was no reason to 
believe that any school authorities in Seattle or Washington had 
ever intentionally segregated students on the basis of race, and 
because the Initiative specifically recognized the authority of courts 
to adjudicate constitutional issues involving schools (see, e.g., Pltf. 
Exh. 56). CiVIC’s materials supporting Initiative 350 stressed that 
racial imbalance could be eliminated effectively by the use of vol­
untary methods (see, e.g., id. at 3-5). The district court bolow 
specifically found that the campaign was conducted in a legal and 
responsible manner, with no appeals made to racist sentiments 
(J.S. App. A-22 to A-23). CiVIC “deliberately took steps to avoid 
race becoming an issue in the campaign * * *” (id. at A-23).



8

of residence * * *.” 11 Initiative 350 allows school assign­
ments to be made beyond the nearest or next nearest school 
only “ [i]f a student requires special education, care or 
guidance” ; “ [i]f there are health or safety hazards” be­
tween the student’s residence and the nearest or next 
nearest school; or if the nearest or next nearest school is 
“unfit or inadequate because of overcrowding, unsafe 
conditions or lack of physical facilities” (ibid.). Initia­
tive 350 also expressly provides that it “shall not prevent 
any court of competent jurisdiction from adjudicating 
constitutional issues relating to the public schools” 
(Wash. Rev. Code Ann. § 28A.26.060 (Cum. Supp. 1981)).

The district opened the 1978-1979 school year under 
the mandatory racial balancing plan (Moberly Affidavit 
at 14), and on November 7, 1978, Initiative 350 was 
approved by approximately 66% of the voters state­
wide (J.S. App. A-22).la The Initiative failed in only two

11 The Initiative explains that the prohibition on “indirect!]” 
student assignments beyond the nearest or next nearest school 
(Wash. Rev. Code Ann. § 28A.26.030 (Cum. Supp. 1981)) :

includes, but is not limited to, implementing, continuing, 
pursuing, maintaining or operating any plan involving (1) the 
redefining of attendance zones; (2) feeder schools; (8) the re­
organization of the grade structure of the schools; (4) the 
pairing of schools; (5) the merging of schools; (6) the cluster­
ing of schools; or (7) any other combination of grade restruc­
turing, pairing, merging or clustering: PROVIDED, That noth­
ing in this chapter shall limit the authority of any school 
district to close school facilities.

In legal opinions widely circulated during the campaign (J.S. App. 
A-21), CiVIC consistently maintained that this section of the 
initiative does not prohibit the redefinition of attendance zones, 
pairing, etc. to achieve racial balance, but rather merely requires 
that after such action, students be assigned to the nearest or next 
nearest school offering their course of study (Pltf. Exh. 66 at 9-11, 
19).

V1 The voters’ adoption of Initiative 860 was presaged by various 
professional public opinion polls. One such poll, conducted for the 
district in July 1978, found that of those parents who stated that 
they were aware of the Seattle Plan (approximately 90% of those 
surveyed), approximately 10% "strongly favored” the plan, 26%



legislative districts, each in Seattle (ibid.). In Seattle as 
a whole, however, the Initiative was approved by approxi­
mately 61% of the voters (ibid.) .18

3. On November 30, 1978, the district, together with 
the Tacoma and Pasco school districts14 * and certain 
individual plaintiffs, brought this action against the State 
of Washington and various state officials in the United 
States District Court for the Western District of Wash­
ington, challenging the constitutionality of Initiative 350 
under the Equal Protection Clause of the Fourteenth

9

“somewhat favored” it, 19% "somewhat opposed” it, and 46% 
"strongly opposed” it (Def. Exh. A-99 at Exh. G). The principal 
concern voiced by those opposing the plan was that "children should 
stay in their own neighborhoods” (ibid.). Another poll of parents 
in the Seattle area found that 65% of minority parents opposed 
mandatory nonneighborhood student transfers (Def. Exh. A-137). A 
poll conducted for CiVIC in October 1978 found that approximately 
64% of those interviewed would vote in favor of Initiative 350 
(Def. Exh. A-114 at Exh. 1). More than half of these persons 
explained they would do so because they believed children should 
attend neighborhood schools (ibid.).

** CiVIC issued a statement on November 8, 1978 calling the 
Initiative’s adoption "a great victory,” and emphasizing that Initi­
ative 350 "should not in any way be viewed as a vote against 
integration” but rather as "an affirmation of the concept of the 
neighborhood school and the right of parents to control their 
children” (Pltf. Exh. 51 at 29).

14 Tacoma School District No. 10 and Pasco School District No.
1 are, like the Seattle district, municipal corporations created under 
the laws of the State of Washington (J.S. App. A-2 to A-3). The 
Tacoma district has an enrollment of approximately 29,000 students, 
approximately 20% of whom are either black, Asian, American 
Indian or Hispanic (id. at A-2). The Pasco district has an en­
rollment of approximately 5,800 students, approximately 27% 
of whom are either black, Asian, American Indian or Hispanic (id. 
at A-2 to A-3). For the past 15 years, the Tacoma district has 
employed a voluntary transfer program and more recently school 
closures and a magnet schools program to alleviate racial imbalance 
in its schools (id. at A-10 to A-14). For the past 16 years, the 
Pasco district has employed school closures and busing to alleviate 
racial imbalance in its schools (id. at A-9 to A-10).



10

Amendment (J.S. App. A-l to A-3, A-6). Numerous 
parties later intervened in the litigation (id. at A-3 to 
A-6), including CiVIC, which intervened on behalf of the 
defendants, and the United States, which intervened on 
behalf of the plaintiffs under 42 U.S.C. 2000h-2.‘° 

Following issuance of both a temporary restraining 
order and a preliminary injunction, the district court 
entered an order permanently enjoining enforcement of 
Initiative 350 (A. 8-9). The district court concluded that 
the Initiative violates the Equal Protection Clause for 
three reasons (J.S. App. A-27):

(1) it forbids mandatory student assignments for 
racial reasons but permits such student assignments 
for purposes unrelated to race, (2) a racially dis­
criminatory purpose was one of the factors which 
caused Initiative 350 to be adopted, and (3) the 
initiative is overly inclusive in that it permits only 
court-ordered busing of students for racial purposes 
even though a school board may be under a constitu­
tional duty to do so even in the absence of a court 
order.

The court of appeals affirmed the district court by a 
divided vote (J.S. App. B-l to B-29). Relying on this 
Court’s decision in Hunter V. Erickson, 393 U.S. 385 
(1969), and a three-judge district court opinion in Lee v. 
Nyquist, 318 F. Supp. 710 (W.D.N.Y. 1970), aff’d, 402 
U.S. 935 (1971), the court of appeals held that Initiative 
350 is unconstitutional because it embodies an imper­
missible legislative classification based on race (J.S. App. 
B-4). The court stated (id. at B-7 to B-8): 16

16 Other plaintiff intervenors alleged that the plaintiff school 
districts operated unconstitutional dual school systems (J.S. App. 
B-2). As a result of these allegations, the district court bifurcated 
the litigation (ibid ). The first phase, from which this appeal is 
taken, was limited to the question of the constitutionality of Initi­
ative 350 (ibid.). Second phase issues relating to the allegations 
of de jure discrimination by the plaintiff school districts were not 
reached at trial because of the court’s ruling on Initiative 350 
(ibid.).



Applying the[] principles [of Hunter and Lee] 
here, it is manifest that Initiative 350 both creates 
a constitutionally-suspect racial classification and 
radically restructures the political process of Wash­
ington by allowing a state-wide majority to usurp 
traditional local authority over local school board 
educational policies. Initiative 350 implicitly effects 
precisely the same classification which was made 
explicit in Lee; the law treats a single purpose for 
student assignment, racial balancing, differently from 
all others. Though Initiative 350 creates the differ­
ential classification indirectly by omission, there is 
no basis for distinguishing it as a matter of consti­
tutional law from the explicit classification of Hun­
ter and Lee.

Although the court of appeals acknowledged that ab­
sent existing de jure segregation the school districts 
themselves could adopt a neighborhood school policy with­
out offending the Equal Protection Clause (J.S. App. 
B-10), the court concluded that “ [t]he interest of the 
State of Washington in mandating a state-wide policy of 
neighborhood schools must * * # fall to the paramount 
interest of the locally elected school boards and the com­
munity they represent in promulgating their own educa­
tional policy” (id. at B -ll). The court held the Initia­
tive was unconstitutional because it was not supported 
by a compelling state interest (ibid.), and therefore 
found it unnecessary to address whether the district 
court had erred in holding that the Initiative was moti­
vated by a discriminatory purpose and is constitutionally 
overbroad (id. at B-4).

In dissent (J.S. App. B-18 to B-29), Judge Wright 
stated that the majority’s reliance on Hunter and Lee 
was misplaced and that Initiative 350 does not create a 
racial classification by permitting isolated deviations 
from the neighborhood school policy for safety, health, 
and special educational purposes. See J.S. App. B-18 to 
B-24. Judge Wright also reached the other grounds 
relied on by the district court in invalidating the Initia-

11



12

tive. The district court’s factual findings on intent, 
Judge Wright concluded, had insufficient record support 
to establish that Initiative 350 was motivated by any 
racially discriminatory intent (id. at B-24 to B-27). 
Judge Wright also rejected the district court’s “over­
breadth” analysis because Section 6 of the Initiative 
(Wash. Rev. Code Ann. § 28A.26.060 (Cum. Supp. 1981)) 
permits departures from the neighborhood school policy 
when necessary to rectify constitutional violations, and 
thus does not threaten interference with the vindication 
of constitutional rights (J.S. App. B-27 to B-29).

SUMMARY OF ARGUMENT

Initiative 350 expresses the policy of the State of 
Washington in favor of neighborhood schools. Contrary 
to the conclusion of the courts below, it does not embody 
an explicit racial classification. Rather, the classification 
created by the Initiative is between those seeking manda­
tory nonneighborhood student assignments for reasons of 
health, safety, or other particularized needs of individual 
students, and those seeking mandatory nonneighborhood 
student assignments for any other purpose, including con­
servation of fiscal resources, balancing of classroom size 
or alleviation of racial segregation. The Initiative does 
not split the citizenry into racially identifiable subgroups, 
and therefore does not classify persons according to race.

Washington’s neighborhood school policy “on its face 
treats Negro and white, Jew and gentile in an identical 
manner” (Hunter V. Erickson, 393 U.S. 385, 391 
(19G9)). In these circumstances, a violation of the Equal 
Protection Clause may be found only if the neighborhood 
school policy imposes “special burdens on racial minori­
ties within the governmental process” (ibid.) not justified 
by some compelling state interest (id. at 392). Initiative 
350 imposes no such special burdens.

Initiative 350 does not radically restructure the polit­
ical process of Washington, or impermissibly restrict the 
capability of local school boards to promote racial bal-



18

ance. The Washington Constitution entrusts formulation 
of educational policy to the state, and Initiative 350 is an 
exercise of the state’s constitutional responsibilities in 
this field. The Initiative, furthermore, does not subject 
state legislation sought by racial groups or other minori­
ties to procedures more burdensome than those appli­
cable to any other type of legislation. Washington has 
long utilized statewide initiatives to establish public 
policy, and this “procedure for democratic decisionmak­
ing” does not deny “any person 'the equal protection of 
the law’ ” (James V. Valtierra, 402 U.S. 137, 143 
(1971)). Initiative 850, at most, redistributes among 
governmental units the authority to assign students to 
schools in local jurisdictions, without making any change 
in the method for obtaining yet another reallocation of 
that authority in the future.

Initiative 350 embodies a constitutionally permissible 
policy favoring neighborhood schools. While the court of 
appeals recognized that the school districts involved in 
this litigation could validly adopt a neighborhood school 
policy, it nevertheless held that imposition of such a 
policy by a superior decisionmaking authority—the state 
electorate—was unconstitutional. The court of appeals 
was wrong. Absent a finding of de jure segregation, de­
cisions concerning the public schools of the State of 
Washington lie fully within the prerogative of the state. 
Under Article IX, Section 1 of the state constitution, 
Washington has complete authority to establish and de­
fine educational policy for its public school system. This 
includes the right to make tradeoff choices between the 
advantages and disadvantages of neighborhood schools 
on the one hand, and busing on the other. No principle 
of federal constitutional law requires that the state, in 
dividing governmental responsibilities between local and 
state authority, must leave every—or no—aspect of stu­
dent assignment policy to local discretion.



14

Finally, although the district court found that Initia­
tive 350 was unconstitutional because it was enacted for 
a discriminatory purpose and was overbroad, neither of 
these grounds justifies invalidating the enactment. A 
discriminatory purpose in enacting a statute may be 
found only after a balanced analysis of the factors set 
out by this Court in Village of Arlington Heights V. 
Metropolitan Housing Development Corp., 429 U.S. 252 
(1977). The district court’s analysis of these factors 
failed to take into account Washington’s undisputed his­
tory of racial integration, and the fact that the benefits 
of neighborhood schools flow to minorities as well as the 
racial majority. Adoption of a neighborhood school policy 
does not raise per force an inference of racial discrimina­
tion ; such a policy is entirely consistent with a good faith 
belief that the advantages for minorities of a neighbor­
hood school system outweigh the advantages for them of 
a racial balancing system. The district court’s finding 
regarding the overbreadth of the Initiative is similarly 
flawed. Even assuming that an overbreadth challenge 
may be properly entertained outside the areas of First 
Amendment rights, the court erred in rejecting the state 
Attorney General’s clearly constitutional interpretation 
of the Initiative in favor of an invalidating construction 
of the measure. Furthermore, there is no real or sub­
stantial threat that Initiative 350 will impair efforts to 
eradicate de jure segregation in Washington, as there 
is no evidence that any such discrimination exists within 
the state.



ARGUMENT
Initiative 350 expresses the State of Washington’s 

policy that, except where infeasible for reasons of health 
and safety, or because of special educational needs or 
unfit or inadequate conditions, no school children within 
the state may involuntarily be assigned to attend any 
school other than that nearest or next nearest to their 
residences. A policy in favor of neighborhood schools 
has a long history of acceptance both within and without 
the State of Washington.16 And, notwithstanding the 
failure of such a policy to alleviate racial isolation re­
sulting from residential patterns,17 utilization of neigh­
borhood schools by a school district has never been held 
to constitute a per se violation of the Equal Protection 
Clause. Austin Independent School Distinct v. United 
States, 429 U.S. 990, 994 (1976) (Powell, J., concur-

16 Indeed, a neighborhood Bchool policy is currently adhered to 
by all Washington school districts except the appellee districts even 
though enforcement of Initiative 850 is presently enjoined (see 
App. Br. 4, 15), and the district court concluded that “the 
Seattle School District has traditionally adhered to a policy 
of the assignment of children to their neighborhood schools” (J.S. 
App. A-22 to A-23). The policy is also embodied in the Equal 
Education Opportunities Act of 1974, wherein Congress declared it 
to be the policy of the United States that “the neighborhood is the 
appropriate basis for determining public school assignments.” 20 
U.S.C. 1701(a) (2). See also 20 U.S.C. 1714(a) ( “No court, depart­
ment, or agency of the United States shall, pursuant to section 
1718 of this title, order the implementation of a plan that would 
require the transportation of any student to a school other than 
the school closest or next closest to his place of residence which 
provides the appropriate grade level and type of education for such 
student”);  Brown V. Califano, 627 F.2d 1221 (D.C. Cir. 1980); 
Morales V. Shannon, 516 F.2d 411 (5th Cir.), cert, denied, 423 U.S. 
1034 (1975); Brinkman V. Gilligan, 518 F.2d 853 (6th Cir.), cert, 
denied, 423 U.S. 1000 (1975).

17 It is a “familiar demographic characteristic of this country” 
for “citizens of common national or ethnic origins to form homo­
geneous residential patterns in our cities.” Austin Independent 
School District V. United States, 429 U.S. 990, 994 n.5 (1976) 
(Powell, J., concurring).

15



16
ring) ; United States v. Texas Education Agency, 664 
P. 2d 162, 168 (5th Cir. 1977) (official discriminatory 
intent cannot be inferred solely from school board's use 
of a neighborhood school policy); Diaz V. San Jose Uni­
fied School District, 612 P. 2d 411, 415 (9th Cir. 1979) 
(“ [a] neighborhood school policy is not constitutionally 
suspect"). See also NAACP V. Lansing Board of Edu­
cation, 559 F. 2d 1042, 1049 (6th Cir.), cert, denied, 434 
U.S. 997 (1977) ; Deal V. Cincinnati Board of Educa­
tion, 369 F. 2d 55, 60-61 (6th Cir. 1966), cert, denied, 
389 U.S. 847 (1967). The court of appeals’ conclu­
sion that the State of Washington’s adoption of a neigh­
borhood school policy violates the Equal Protection Clause 
is therefore without precedent.

I. Initiative 350 Does Not Classify Persons According 
to Race

Both the district court and the court of appeals ma­
jority held that Initiative 350 creates a constitutionally 
suspect racial classification because it “treats a single 
purpose for student assignment, racial balancing, differ­
ently from all others" (J.S. App. B-7). This proposition 
is both factually and analytically unsound. Under the 
Initiative, mandatory student assignments may deviate 
from the neighborhood school policy only for certain 
specified purposes. Mandatory assignments for any pur­
pose not specified—including not only racial balancing 
but also, for example, numerical balancing of class sizes 
—are restricted to the schools nearest or next nearest to 
the students’ residences. Accurately viewed, therefore, 
the Initiative creates two categories of purposes for stu­
dent assignments, neither of which is restricted to racial 
balancing.

Initiative 350 does not classify persons according to 
race in any respect. The classification created by the 
Initiative is between those seeking mandatory non­
neighborhood student assignments for reasons of health, 
safety, or special educational needs or in response to 
unfit or inadequate conditions and those seeking manda-



17
tory nonneighborhood student assignments for any other 
purpose, including conservation of fiscal resources, bal­
ancing of classroom size, or alleviation of racial segrega­
tion in the neighborhood schools. While the latter class 
may not obtain mandatory nonneighborhood student as­
signments upon the mere approval of the local school 
board, as can members of the former class, the burden 
thus created is not imposed along racial lines. There is 
no basis for a court to infer that even a class limited to 
those persons seeking mandatory nonneighborhood stu­
dent assignments to achieve racial balance is racially 
identifiable. Indeed, as Judge Wright noted in dissent, 
the "policy question” that lies "at the heart” of Initiative 
350—"whether student assignments beyond the next near­
est school should be used to overcome de facto segrega­
tion” (J.S. App. B-21)—simply does not split the 
citizenry into discrete racial subgroups.18

The legislative classification created by Initiative 350 
is thus analogous to the classification at issue in Personnel 
Administrator of Massachusetts v. Feeney, 442 U.S. 256 
(1979). In Feeney this Court rejected the contention 
that a Massachusetts statute granting an absolute life­
time employment preference to veterans classified persons 
on the basis of sex. While noting that the veteran prefer-

18 The racial heterogeniety of the class allegedly disadvantaged 
by Initiative 350 contrasts rather sharply with the racial makeup 

t of the disadvantaged class in Hunter V. Erickson, supra. Although 
it  could be argued that the classification created by the city charter 
amendment in Hunter was not “racial” because advocates of fair 
housing legislation are not racially identifiable, the fact remains 
that the special political obstacle created to block future fair hous­
ing ordinances in Hunter operated to the peculiar disadvantage 
of minorities. As the Court specifically noted in Hunter, the racial 
“majority needs no protection against discrimination” in housing 
opportunities (393 U.S. at 391). By contrast, rescission of a racial 
balancing program in favor of a neighborhood school policy like the 
one embodied in Initiative 350 does not work exclusively to the dis­
advantage of any racial group. The perceived advantages of neigh­
borhood schools—i.e., increased community support and input, en­
hanced safety, reduced costs, and improved home-school relations 
(J.S. App. A-28)—flow to both minority and nonminority students.



ence statute “exclude[d] significant numbers of women 
from preferred state jobs,” the Court concluded (442 U.S. 
at 275):

[T]his is not a law that can plausibly be explained 
only as a gender-based classification. Indeed, it is 
not a law that can rationally be explained on that 
ground. Veteran status is not uniquely male. Al­
though few women benefit from the preference, the 
nonveteran class is not substantially all female. To 
the contrary, significant numbers of nonveterans are 
men, and all nonveterans—male as well as female—- 
are placed at a disadvantage. Too many men are 
affected by [the veterans’ preference statute] to per­
mit the inference that the statute is but a pretext 
for preferring men over women.

To paraphrase the Feeney court, adoption of a neigh­
borhood school policy cannot be explained solely on racial 
grounds. Preference for neighborhood schools is not 
uniquely limited to the racial majority. Conversely, 
preference for mandatory busing to achieve racial bal­
ance is not uniquely limited to racial minorities. To the 
contrary, significant numbers of both classes lie on either 
side of the mandatory busing controversy. Too many 
minorities are opposed to the implementation of wide­
spread mandatory busing and the consequent abandon­
ment of the advantages of neighborhood schools to permit 
the inference that establishment of a neighborhood school 
policy is but a pretext for overriding the constitutional 
prerogatives of the racial minority.1* Initiative 350, 
therefore, clearly does not classify persons according to 
race. Cf. Gordon v. Lance, 403 U.S. 1, 5 (1971) (state 
constitutional provision limiting bonded indebtedness of 
the state does not violate the Equal Protection Clause 
as Court could discern “no independently identifiable 
group or category that favors bonded indebtedness over 
other forms of financing” ) (emphasis added); James v. 
Valtieri'a, 402 U.S. 137, 141 (1971) (holding, in contrast 
to Hunter v. Erickson, supra, that a state-required referen- 19

18

19 See notea 12, supra, & 42, infra.



clum on all low-rent public housing projects is not a 
“ ‘distinction based on race’ ” ).20

t

II. The State of Washington’s Adoption of a Neighborhood 
School Policy Imposes no Special Burden on Racial 
Minorities Within the Governmental Process

1. A neighborhood school policy that, like the State of 
Washington’s, “treats Negro and white, Jew and gentile 
in an identical manner” (Hunter V. Erickson, 393 U.S. 
385, 391 (1969)), violates the proscription of the Four­
teenth Amendment only where it “places special burdens 
on racial minorities within the governmental process” 
(ibid.) that are not justified by some compelling state 
interest (id. at 392). The State of Washington’s adop­
tion of Initiative 350 imposes no special burden upon 
minorities within the state’s governmental process.

In Hunter v. Erickson, supra, this Court upheld a 
constitutional challenge to a city charter amendment that 
required city housing ordinances prohibiting invidious 
discrimination to be approved at a regular general elec­
tion, while ordinances regulating housing on other grounds 
became effective merely upon approval by the city coun­
cil.21 The Court found that the amendment violated the

19

20 A race-neutral law violates the equal protection clause only 
if  it has a disproportionately adverse impact upon a racial minority 
that can be traced to purposeful discrimination. Personnel Adminis­
trator of Massachusetts V. Feeney, supra, 442 U.S. at 273-274. 
See also City of Mobile V. Bolden, 446 U.S. 55 (1 9 8 0 ); Arlington 
Heights V. Metropolitan Housing Development Corp., 429 U.S. 252 
(1977); Washington V. Davis, 426 U.S. 229 (1976). Because the 
court of appeals majority concluded that Initiative 350 classifies 
persons on the basis of race, it did not consider whether enactment 
of the Initiative was motivated by purposeful discrimination. If, 
as the United States contends, Initiative 850 does not establish a 
racial classification, the question whether the adoption of the Initia­
tive reflected a discriminatory purpose gains substantial importance 
in the ultimate resolution of this litigation. See Point IV, infra.

21 The amendment also differentiated fair housing ordinances 
from other ordinances in at least two other respects. The refer­
endum required under the amendment could be obtained only 
through a petition signed by 10% of the city’s voters; other



Equal Protection Clause because it expressly targeted 
ordinances designed to eliminate racial discrimination in 
housing and subjected them to a special legislative process 
that “obviously made it substantially more difficult to 
secure [their] enactment” (393 U.S. at 390). The Court 
emphasized that the “mere repeal of an existing ordi­
nance” would not violate the Fourteenth Amendment (id. 
at 390 n.5), but concluded that the amendment’s “required 
* approval of the electors before any future [fair hous­
ing) ordinance could take effect” (id. at 390) visited a “spe­
cial burden [] on racial minorities within the govern­
mental process” (id. at 391) unjustified by a compelling 
state interest (id. at 392). “ [Tjhe State may no more 
disadvantage any particular group by making it more 
difficult to enact legislation 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 
393). The Court’s opinion emphasized that only minori­
ties need the protection of a fair housing law (see note 
18, supra).

In Lee v. Nyquist, 318 F. Supp. 710 (W.D.N.Y. 1970), 
aff’d, 402 U.S. 935 (1971), a three-judge district court 
applied Hunter to invalidate a New York statute ex­
plicitly prohibiting race-conscious student assignment by 
appointed, but not by elected school boards. The statute 
created “a single exception to the broad supervisory 
powers the [appointed] state Commissioner of Education 
exercises over local public education” (318 F. Supp. at 
718), and unambiguously applied to “all efforts to achieve 
racial balance, including such efforts by a school district 
subject to a pre-existing order to eliminate segregation 
in its schools” (id. at 715). The district court concluded 
that the statute “structure[d] the internal governmental 
process in a manner not founded on neutral principles,”

ordinances could be initiated on petition of seven percent of the 
voters (393 U.S. at 390). Further, the amendment specifically pro­
vided that referendums on fair housing ordinances could be con­
ducted only at regular or general elections, while an expedited 
so c ia l election procedure was ordinarily available for other refer­
endums (ibid.).

20



and thus “operate[d] to disadvantage a minority, a 
racial minority, in the political process” (id. at 720). 
The statute accordingly was found to deny plaintiffs 
equal protection of the law.

2. The majority of the court of appeals relied on 
Hunter and Lee to conclude that Initiative 350 places 
special burdens on racial minorities within the political 
process and therefore violates the Equal Protection 
Clause. Initiative 350 imposes these burdens, in the 
court of appeals’ view, by “restructurfing] the state’s 
political and administrative process so as to remove 
from local school boards their existing authority, and in 
large part their capability, to enact programs designed 
to desegregate the schools” (J.S. App. B -ll) (emphasis 
in original) (footnote omitted). As Judge Wright pointed 
out in dissent, however, Hunter and Lee are not control­
ling here (J.S. App. B-18 to B-19). The court erred in 
concluding that Initiative 350 either “radically restruc­
tures the political process of Washington” (J.S. App. 
B-7) or impermissibly restricts the capability of local 
school boards to promote racial balance. The Initiative 
merely limits the discretion of local school districts to 
draw school attendance zones through an exercise of 
policymaking authority at the superior, statewide level. 
It simply does not alter the legislative process in the 
State of Washington in a way analogous to the measures 
at issue in Hunter V. Erickson, supra, and Lee v. Nyqwist, 
supra.

a. Contrary to the conclusion of the court of appeals, 
Initiative 350 does not result in any usurpation of “tra­
ditional local authority over local school board educational 
policies” (J.S. App. B-7). In the State of Washington, 
education is emphatically the responsibility of the state, 
not the local boards of education. Article IX, Section 1 
of the state constitution states that “ [i]t is the para­
mount duty of the state to make ample provision for 
the education of all children residing within its borders, 
without distinction or preference on account of race, 
color, caste, or sex.” See also Article IX, Section 2 (” [t]he 
legislature shall provide for a general and uniform sys-

21



tem of public schools” ). The Washington Supreme Court 
has held that the Article IX, Section 1 guarantee of racial 
equality “does not merely seek to broadly declare policy, 
explain goals, or designate objectives to be accomplished. 
It is declarative of a constitutionally imposed du ty” 
Seattle School District No. 1 v. Washington, 90 Wash. 
2d 476, 499, 585 P.2d 71, 85 (1978) (emphasis in 
original). In accordance with this duty, the state legisla­
ture has an affirmative, judicially enforceable obligation 
both to define and fully provide “a basic program of edu­
cation in a ‘general and uniform system of public 
schools.’ ” 90 Wash. 2d at 522, 585 P.2d at 97.

The state legislature, in fulfillment of this obligation, 
has established local school districts and has allowed the 
elected boards of these districts discretion in limited 
areas of educational administration. However, under 
state law and practice, these boards do not define and 
implement local and autonomous educational policies. 
They act as agents of the state, effectuating at the local 
level policies announced by the state legislature and ex­
plicated by the state superintendent of public instruc­
tion and state board of education. See Moses Lake 
School Distinct No. 161 V. Big Bend Community College, 
81 Wash. 2d 551, 556 (1972). See generally Wash. Rev. 
Code Ann. § 28A.02.020 (Cum. Supp. 1981) (organiza­
tion of state school system); Wash. Rev. Code Ann. 
§ 28A.03.030 (Cum. Supp. 1981) (powers and duties of 
superintendent of public instruction); Wash. Rev. Code 
Ann. § 28A.04.120 (Cum. Supp. 1981) (powers and 
duties of state board of education). Statewide limi­
tations on local discretion are not uncommon. Whether 
by mandatory regulations or conditional financing, the 
state has deeply involved itself in virtually every area 
of local educational administration. See, e.g., Wash. 
Admin. Code 392-143-065 (regulating types of tires per­
missible on local school buses). See generally Wash. Rev. 
Code Ann., tit. 28A (1970); Wash. Admin. Code, tits. 
180, 392. In areas where the state has allowed some local 
discretion, e.g., in the setting of educational curricula, 
this discretion typically has been narrowly circumscribed.

22



See, e.g., Wash Rev. Code Ann. § 28A.58.754 (3) (Cum. 
Supp. 1981) (establishing mandatory statewide “total 
program hour requirements” and “minimum course mix 
percentages” for local school districts, but allowing devia­
tions of “up to five percentage points above or below” 
the minimums “ [i]n order to provide flexibility to the 
local school districts” ).

As with all matters of educational policy, state involve­
ment in the racially sensitive aspects of local educational 
administration has been substantial. The state has never 
abdicated its constitutional policymaking responsibility 
in this area. The state has long subjected school officials 
to statewide nondiscrimination requirements,22 and has 
long both promoted and regulated local efforts to elimi­
nate racial imbalance. At least since 1970 (see J.S. App. 
A-12, finding 5.8), the alleviation of racial imbalance 
in local school districts has been an expressly established 
policy of the state. The state, furthermore, has regularly 
enacted laws and promulgated regulations designed to 
give the policy practical effect.28 Indeed, the Washington

“  E.g., Wash. Rev. Code Ann. § 28A.02.050 (Cum. Supp. 1981) 
(incorporating into state educational code state prohibition of em­
ployment discrimination); Wash. Rev. Code Ann. § 28A.58.704 
(Cum. Supp. 1981) (prohibiting discrimination in the granting 
of student aid); Wash. Rev. Code Ann. § 28A.87.220 (Cum. Supp. 
1981) (incorporating into state education code state provision of 
criminal penalties for violations of civil rights). Cf. Wash. Op. 
A tfy  Gen. No. 1, at 11 (1975) (state superintendent of public in­
struction authorized by state law to require local school districts to 
formulate and implement affirmative action requirements). See also 
Wash. Rev. Code Ann. § 28A.85.020 (Cum. Supp. 1981) (state super­
intendent of public instruction directed to develop statewide regu­
lations and guidelines for the elimination of sex discrimination).

23 See, e.g., Wash. Rev. Code Ann. § 28A.58.245 (Cum. Supp. 1981) 
directing state superintendent of public instruction to develop rules 
and regulations for the implementation of inter-district, voluntary 
programs deemed necessary by the superintendent to improve racial 
balance within and among school districts) (enacted 1969); Wash. 
Rev. Code Ann. § 28A.41.250 (Cum. Supp. 1981) (directing the state 
superintendent to devise a statewide plan to assist school districts 
in developing programs for the relief of children suffering from 
racial isolation) (enacted 1974); Wash. Admin. Code 180-30-040 
(conditioning approval of construction grants to school districts on a

23



24
Supreme Court has held that in implementing a local 
racial balancing plan, a school district is simply “effec­
tuating, at the local level, a policy announced by the 
legislature.” Citizens Against Mandatory Bussing v. Pal- 
mason, 80 Wash. 2d 445, 448, 495 P.2d 657, 660 (1972).24

In this context, it is simply incorrect to speak, as did 
the court of appeals, of “a state-wide majority * * * 
usurp [ing] traditional local authority over local school 
board educational policies” (J.S. App. B-7), or to char­
acterize as “paramount” any local interest in the promul­
gation of educational policy (id. at B -ll) . Indeed, in 
litigation challenging a 1971 mandatory nonneighborhood 
racial balancing plan implemented in the Seattle School 
District’s middle grades, the State Supreme Court held 
that local referendums may not be used to overturn local 
desegregation plans because local voters may not “inter­
fere in the management of the state's school system.” 
Citizens Against Mandatory Bussing v. Pahnason, supra, 
80 Wash. 2d at 450.®“ The limitation on the use of 
mandatory measures for achieving racial balance con­
tained in Initiative 350 does not restructure the educa­
tional policymaking process of the state of Washington 
in some unusual or special fashion. Unlike the situation 
in Lee V. Nyquist, supra, Initiative 350 does not represent 
a “single exception” (318 F. Supp. at 718) to the other-

determination by the state superintendent that the proposed con­
struction would not create or aggravate racial imbalance within 
the districts) (promulgated 1969).

24 The state, moreover, has often indicated in some detail how 
this statewide policy is to be implemented by local districts. It has, 
for example, defined the degree of racial imbalance that local school 
districts should attempt to eliminate, and has required that local 
racial balancing plans be submitted to the state for approval prior 
to implementation. See, e.g., Citizens Against Mandatory Bussing 
V. Pahnason, supra, 80 Wash. 2d at 449 n.6, 495 P.2d at 661; Wash. 
Op. Att’y. Gen. No. 55, Part III (1965-1966) (conditioning state 
financing of racial balancing plans on approval by the state super­
intendent of public instruction).

-B As Judge Wright noted in dissent, “ t i l t  is ironic that a federal 
court would now hold that the state itself may not interfere in its 
own school system’’ (J.S. App. B-24).



wise broad authority of local districts over educational 
matters. In Washington, statewide limitations on the 
exercise of local discretion are the norm. The court of 
appeals erred in concluding otherwise.

b. The court of appeals also erred in concluding that 
Initiative 350 burdens racial minorities by impermissibly 
restricting the capability of local school districts to pro­
mote racial balance (J.S. App. B -ll). In contrast to the 
situation in Lee v. Nyquist, supra, where the statute 
clearly prohibited “all efforts to achieve racial balance" 
(318 F. Supp. at 715), Initiative 350 is not designed to 
prevent increased racial mixing in public schools. The 
Initiative does not prohibit all mandatory student as­
signments for racial reasons, but merely limits such 
mandatory assignments to those schools nearest or next 
nearest to the student’s home. In addition, the Initia­
tive does not limit in any manner the use of voluntary 
programs or school closures designed to promote racial 
balance. In short, the Initiative does not deny any stu­
dent the right to attend a fully integrated school.

The Initiative, moreover, will not interfere with the 
efforts of individual school districts to eliminate de jure 
segregation. Unlike the statute in Lee v. Nyquist, supra, 
which blocked desegregation efforts even by “a school 
district subject to a pre-existing order to eliminate segre­
gation in its schools” (318 F. Supp. at 715), Initiative 
350 clearly permits Washington school districts to make 
racially conscious student assignments pursuant to a 
court finding of unconstitutional segregation.2® Cf. North 
Carolina Board of Education V. Swann, 402 U.S. 43, 
45 (1971) (anti-busing law unconstitutional because it 
would “obstruct the remedies granted by the District 
Court” to eliminate existing de jure segregation).27 The

2*The Initiative expressly provides that it “shall not prevent any 
court of competent jurisdiction from adjudicating constitutional 
issues relating to the public schools.” Wash. Rev. Code Ann. 
§ 28A.26.060 (Cum. Supp. 1981).

27 The statute at issue in Lee V. Nyquist, supra, clearly violated 
the rule established in North Carolina Board of Education v. Swann, 
supra, as it unambiguously blocked all efforts to dismantle de jure

25



26

Initiative, furthermore, has been consistently interpreted 
by the State Attorney General—the official charged with 
enforcing the Initiative—as permitting local officials to 
make race-conscious student assignments to remedy de 
jure segregation (App. Br. 37-39).28 Initiative 350,

segregation and therefore “operate[d] to * * * Impede the disestab­
lishing of a dual school system” (402 U.S. at 45). This Court’s 
summary affirmance of Lee was announced approximately two weeks 
after the Court’s decision in Swann. Nyquist V. Lee, 402 U.S. 935 
(1971). Since the Swann decision fully justified the summary 
affirmance in Lee, it is implausible to attribute any novel, unex­
pressed further significance to that summary disposition. See 
Mandel v. Bradley, 432 U.S. 173, 176 (1977) (summary affirmance 
does not constitute an endorsement of the lower court’s reasoning); 
Fusari v. Steinberg, 419 U.S. 379, 391-392 (1975) (Burger C.J., 
concurring) (same). Accordingly, this Court’s summary affirm­
ance in Lee provided no support for the court of appeals’ decision 
here.

28 In the absence of a state court decision construing Initiative 
350, the state Attorney General’s interpretation is the most authori­
tative available construction of the Initiative. Although this inter­
pretation is not "binding on the courts and legislature of the State,” 
this Court has assumed that representations of the Attorney General 
of the State of Washington "are authoritative within [the state’s] 
executive branch.” Washington V. Washington State Commercial 
Passenger Fishing Vessel Association, 443 U.S. 658, 694 (1979). 
Inasmuch as it is the state’s executive branch that would enforce 
Initiative 350, the attorney general’s representation that the Initia­
tive would not be enforced in such a manner as to prevent dis­
mantling of de jure segregation (if  any exists in Washington and 
cannot adequately be remedied by other means) is entitled to sub­
stantial deference. Absent a state court interpretation, the Wash­
ington Attorney General’s interpretation clearly prevails over that 
of the district court. See, e.g., Lynch V. Overholser, 369 U.S. 705, 
710-711 (1962).

Moreover, even if the district court's interpretation of Initiative 
350 were correct, no decision of this Court holds that a state is 
constitutionally prohibited from requiring that the threshold legal 
question—whether existing racial segregation in the district is 
unconstitutional—be judicially decided before it permits local school



27

therefore, does not hinder the ability of school districts 
or school officials within the State of Washington to 
conform their conduct fully to federal constitutional re­
quirements. The courts below erred in concluding 
otherwise.

c. Moreover, Initiative 350, unlike the challenged en­
actment in Hunter V. Erickson, supra, does not subject 
any future school attendance zone referendum sought by 
racial groups or other minorities to procedures more 
burdensome than those that were applicable to Initiative 
350 or that currently apply to any other issue to be 
brought before the voters of Washington. The constitu­
tional vice in Himter v. Erickson was not that the Akron 
voters utilized a referendum to repeal a fair housing 
law (393 U.S. at 390 n.5), but that the resulting amend­
ment to the city charter erected a special political ob­
stacle to block all future fair housing ordinances (id . 
at 391). The city charter amendment challenged in 
Hunter required approval of all fair housing ordinances 
at a regular general election, but did not require such 

* approval for any other category of municipal ordinance; 
it therefore was not “grounded in neutral principle” (id .

boards (the subordinate political subdivisions created by the state 
to implement state educational policy) to depart from the state­
wide neighborhood school policy and to employ remedial race­
conscious student assignments. See Holt Civic Club V. Tuscaloosa, 
439 U.S. 60, 71 (1978); cf. Hughes V. Superior Court, 339 U.S. 
460, 467 (1950) ("the Fourteenth Amendment leaves the States 
free to distribute the powers of government as they will between 
their legislative and judicial branches”);  Dreyer v. Illinois, 187 
U.S. 71, 84 (1902) ("Whether the legislative, executive and judicial 
powers of a State shall be kept altogether distinct and separate, or 
whether persons or collections of persons belonging to one depart­
ment may, in respect of some matters, exert powers which, strictly 
speaking, pertain to another department of government, is for the 
determination of the State”) ; Sweezy V. Hew Hampshire, 354 U.S. 
234, 255 (Warren, C.J., announcing judgment), 256-257 (Frank­
furter, J., concurring), 268 (1957) (Clark, J., dissenting).



28

at 395) (Harlan, J., concurring). In contrast, Initia­
tive 350 erects no political obstacles to future modifica­
tion of state school attendance zone policy, and is the 
result of a procedure “which is grounded in neutral 
principle, * * * a general referendum” (393 U.S. at 
395) (Harlan, J., concurring).

In enacting Initiative 350, the State of Washington 
plainly did not create a special political process for the 
consideration of racial issues. All the state did was 
enact what in Washington is commonplace—a statewide 
limitation on the discretion of local school officials. The 
fact that the state’s voters utilized a general referendum 
as the means of effectuating this state educational policy 
is also unexceptionable, as “ [provisions for referendums 
demonstrate devotion to democracy, not to bias, discrim­
ination, or prejudice.” James V. Valtierra, 402 U.S. 137, 
141 (1971). If local school districts and other groups op­
pose Initiative 350, the same general referendum pro­
cedure is available to them on exactly the same terms 
as it was to the proponents of Initiative 350. General 
referendums “do not violate the Equal Protection Clause 
simply because they occasionally operate to disadvantage 
[minority] political interests. If a governmental institu­
tion is to be fair, one group cannot always be expected 
to win. If * * * [pro-minority] legislation [is] defeated 
at a referendum [minorities] * * * undoubtedly lose 
an important political battle, but they [are] not thereby 
* * * denied equal protection.” Hunter V. Erickson, 
supra, 393 U.S. at 394 (Harlan, J., concurring).

In James v. Valtierra, supra, 402 U.S. at 139, the 
Court declined to extend Hunter V. Erickson, supra, to 
cover an important political battle lost by proponents of 
low-cost public housing. In James, this Court rejected the 
claim that a newly adopted California state constitu­
tional amendment denied proponents of low-cost public 
housing equal protection, even though the amendment re­
quired referendum approval of all such housing projects 
developed or acquired by a state public body. Although 
the mandatory referendum requirement undoubtedly 
hindered the efforts of those seeking low-rent public



29

housing (402 U.S. at 12), a referendum requirement was 
not considered to be a “special burden" within the mean­
ing of Hunter V. Erickson, and the court therefore de­
clined to find that it constituted a denial of equal 
protection.

As in James, the supporters of mandatory nonneighbor­
hood student assignments in Washington must overcome 
the results of a public referendum to achieve their goals. 
But this “disadvantage!”]” (402 U.S. at 142) does not 
deny equal protection because supporters of mandatory 
nonneighborhood student assignments have not been 
singled out and subjected to a referendum process “while 
no other group must face that obstacle” (ibid.).2* Wash­
ington long has utilized a referendum process for many 
issues of general public concern.80 “This procedure for 
democratic decisionmaking does not violate the consti­
tutional command that no State shall deny to any per­
son ‘the equal protection of the laws’ ” (James, supra, 
402 U.S. at 143).

Sensing that the state’s utilization of a non-discrimina- 
tory referendum to establish educational policy does not 
by itself impose any special burden upon minorities with­
in the governmental process, the court of appeals 
reasoned that the statewide nature of the referendum 
process violated the Fourteenth Amendment by “effectively 28

28 In Jamea, the Court noted that California required referendums 
for approval of state constitutional amendments, issuance of general 
obligation bonds by local governments, and certain municipal an­
nexations (402 U.S. at 142).

80 The initiative and referendum process is widely used in Wash­
ington to enact law and shape public policy. See J.S. App. B-27; 
Comment, Judicial Review of Laws Enacted by Popular Vote, 65 
Wash. L. Rev. 175, 179 n.29 (1979). The voters of the state may 
enact by means of an initiative any law that could be adopted by 
the state legislature (Wash. Const. Art. II, § 1 ). Once passed 
by the electorate, an initiative cannot be repealed by the state 
legislature for two years, although it can be amended by a two- 
thirds majority vote of both houses of the state legislature (id. 
at §41 ). After two years, the initiative may be amended or 
repealed by the legislature in the same manner as any other 
statute (ib id .).



30

disenfranchising] the voters of the local school districts 
with respect to local educational matters” (J.S. App. 
B -ll). Aside from the fact that this “disenfranchise­
ment” rationale overlooks the reality (noted by Judge 
Wright in dissent) “that 60% of the voters in Seattle 
voted in favor of the initiative” (J.S. App. B-24), the 
preceding discussion of state law shows that local voters 
in Washington have no more than a rescindable delega­
tion of power from the state to affect educational policy 
in those few areas left to local discretion. Once the state 
has prescribed a uniform educational policy, local pref­
erences entirely give way. Initiative 350, like other 
state-promulgated educational policies, restricts and 
directs local efforts to shape the character of local schools. 
But the resulting restriction or “disenfranchisement” of 
local voters stems not from Initiative 350, but from the 
state constitution. Thus, the “burden” placed upon local 
voters by the educational policy embodied in Initiative 
350 is indistinguishable from the burdens imposed upon 
other groups by countless other restrictive state edu­
cational policies. The restriction imposed by the Initia­
tive, therefore, unlike the restriction a t issue in Hunter 
cannot accurately be characterized as unusual or 
special.

The effect of Initiative 350 is to restrict the discre­
tion of local school boards to assign students beyond the 
nearest or next nearest school to their homes. Where 
student assignment was once a matter left to local dis­
cretion, it is now a matter of uniform state policy. But 
not only was this modification of state policy not the 
result of any unusual political procedure, the current 
state policy is not insulated from reconsideration or mod­
ification by a special political barrier. Initiative 350, at 
most, merely redistributes among governmental units the 
authority to assign students to schools in local jurisdic­
tions, without making any change in the method for ob­
taining yet another reallocation of that authority. It 
places no “burdens on racial minorities within the gov­
ernmental process” that are in any sense “special” 
(Hunter V. Erickson, supra, 393 U.S. at 391). In these



circumstances, the court of appeals erred in concluding 
that the Initiative impermissibly infringes appellees’ 
Fourteenth Amendment rights.

III. Initiative 350 Represents a Constitutionally Permis­
sible Policy Decision. The Fact that the Stale, Rather 
Than the Local School District, Made the Final Policy 
Selection is of no Federal Constitutional Significance

Apart from the preceding analysis, there is another 
fundamental reason why Initiative 350 does not violate 
the proscription of the Equal Protection Clause. Initia­
tive 350 merely rescinds an educational policy that is not 
itself required by the Constitution, and replaces it with 
another constitutionally permissible policy. The only real 
question presented by the case, therefore, is whether the 
state can adopt a policy favoring neighborhood schools 
which supersedes the contrary policy of some of its con­
stituent local school districts. The United States submits 
that it can.

The race-conscious nonneighborhood student assignment 
plan adopted by the Seattle School District reflects the 
district’s judgment that “in order to prepare students to 
live in a pluralistic society each school should have a 
prescribed ratio of Negro to white students reflecting the 
proportion for the district as a whole.’’ Swann v. 
Charlotte-Mecklenberg Board of Education, 402 U.S. 1, 
16 (1971). But, regardless of whether utilization of that 
plan is within the district’s “broad power to formulate 
and implement educational policy” (ibid.), it clearly is 
hot mandated by the Fourteenth Amendment. “The con­
stitutional command to desegregate schools does not mean 
that every school in every community must always re­
flect the racial composition of the school system as a 
whole” (id. at 24). Similarly, because there has been no 
flnding of unlawful segregation in Washington schools, 
and in Seattle in particular, Initiative 350’s policy 
favoring neighborhood schools is well within the range 
of constitutionally permissible policy choices available to



the district.81 The question thus becomes whether Wash­
ington’s replacement of a racial balancing plan with a 
constitutionally permissible policy somehow offends the 
Equal Protection Clause.

This Court has long recognized that “mere repeal” of 
existing ordinances or legislation dealing with racial 
matters does not, by itself, offend the Equal Protection 
Clause. Himter v. Erickson, supra, 393 U.S. at 390 
n.5. Absent a preexisting constitutional duty (Dayton 
Board of Education V. Brinkman, 433 U.S. 406, 414 
( 1977) ) 82 or conduct on the part of the state that “sig­
nificantly encourage[s] and involve[s] the State in pri­
vate discriminations” (Reitman V. Mulkey, 387 U.S. 369, 
381 ( 1967) ) , 83 the Fourteenth Amendment does not es­
tablish “an automatic constitutional barrier to the repeal

81 “All things being equal, with no history of discrimination, 
it might well be desirable to assign pupils to schools nearest their 
homes.” Swann V. Charlotte-Mecklenberg Board of Education, 
supra, 402 U.S. at 28.

82 In Dayton Board of Education V. Brinkman, supra, this Court 
concluded that whether a school board’s rescission of prior resolu­
tions calling for remedial racial balancing measures violated the 
Fourteenth Amendment was “inextricably bound up with the ques­
tion of whether the Board was under a constitutional duty to take 
the action which it initially took. [Citations omitted.] * * * If the 
Board was under such a duty, then the rescission becomes a part 
of the cumulative violation, and it is not necessary to ascertain 
whether the rescission ipso facto is an independent violation of the 
Constitution.” 433 U.S. at 414 (quoting Brinkman V. Gilligan, 
503 F.2d 684, 697 (6th Cir. 1974)).

83 In Reitman V. Mulkey, supra, this Court affirmed the holding 
of the California Supreme Court that a recent amendment to the 
state constitution guaranteeing a private right to discriminate 
in the sale or rental of real property violated the Equal Protection 
Clause. Central to this Court’s opinion was a finding by the Cali­
fornia Supreme Court that the state constitutional amendment 
“significantly encouragefd] and involve[d] the state in private 
discriminations” (387 U.S. at 381). The Court specifically noted 
that the Fourteenth Amendment would not invalidate mere repeal 
“of an existing law prohibiting racial discriminations in housing,” 
nor would it prevent a state from putting “in statutory form an 
existing policy of neutrality with respect to private discriminations” 
(id. at 876).

32



of &n existing law” impacting on racial issues (id. at 
376). Analyzed under these principles, is it clear that 
adoption of Initiative 350 does not offend the Equal Pro­
tection Clause.

No court—state or federal—has ever determined that 
any Washington school district has been guilty of un­
lawful segregation. On the contrary, the record in this 
case demonstrates that the Seattle School District, as well 
as the other two plaintiff districts, have consistently 
and diligently sought to promote not merely racial in­
tegration but racial balance within their schools (see 
notes 2, 4, 5, 6, 14, supra). None of the plaintiff school 
districts, therefore, is constitutionally compelled to adopt 
racial balancing techniques (Dayton Board of Education 
V. Brinkman, supra, 433 U.S. at 414, 420). Nor is any 
of them precluded from adopting a neighborhood school 
policy, such as the one embodied in Initiative 350, since 
there has been no finding that such a policy by itself will 
significantly encourage and promote unlawful segrega­
tion. Cf. Reitman v. Mulkey, supra, 387 U.S. at 381. 
See also Austin Independent School District v. United 
States, supra, 429 U.S. at 994 (Powell, J., concurring). 
The Equal Protection Clause, therefore, places no sig­
nificant constraints on the state's adoption of the educa­
tional policy option at issue in this litigation—neighbor­
hood schools.

The court of appeals recognized the limited impact of 
the Equal Protection Clause in this case when it acknowl­
edged that “we would be faced with a quite different 
issue” (J.S. App. B-10 n.8) had the school districts them­
selves rescinded their mandatory plans in favor of neigh­
borhood schools. The court realized that the constitu­
tionality of a neighborhood school policy in those circum­
stances would hinge upon whether the school districts 
were under a preexisting duty to dismantle a dual school 
system (ibid.). But although the court concluded the 
school districts could adopt a neighborhood school policy 
absent de jure segregation (ibid.), it nevertheless held 
that such a policy could not be imposed upon the districts 
by a superior decisionmaking authority—the state elector-

83



ate (id. at B -ll) . The court of appeals dearly erred in 
reaching this conclusion.

This case does not involve constitutionally proscribed 
racial discrimination, because there has been none. At 
issue, rather, is whether the State may adopt a policy 
that the court of appeals acknowledges the school board 
could have adopted. Thus, how the State of Washington 
distributes its governmental authority concerning school 
matters among the various components that comprise 
state government controls the disposition of this case, for 
in the absence of a constitutional violation, decisions 
concerning the public schools of the State of Washington 
lie entirely within the prerogative of the State.84 Further­
more, how the state’s decisionmaking authority is al­
located among the various units of state government is 
a question for state, not federal, law.

The court of appeals’ conclusion that the state is some­
how disabled from establishing a student assignment 
policy ignores the state’s constitutional obligation to pro­
vide “a basic program of education in a ‘general and uni­
form system of public schools’ ” (Seattle School District 
No. 1 v. Washington, supra, 90 Wash. 2d at 499, 522, 
585 P.2d at 85 (emphasis added)). Under Article IX, 
section I of the state constitution,85 Washington has full 
authority to establish and define educational policy for its 
public school system.

The appellee school districts apparently contend, and 
the court of appeals agreed (J.S. App. B -ll) , that In­
itiative 350 impermissibly constricts their discretion in 
student assignment matters. However, the “discretion” 
the districts claim the Initiative infringes existed merely 
because the state chose to delegate that discretion to the 
districts. Indeed, instead of permitting local districts

34 “[ l i t  ia important to remember that judicial powers may be 
exercised only on the basis of a constitutional violation.” Swann V. 
Charlotte-Mecklenberg Board of Education, supra, 402 U.S. at 16. 38

38 “It is the paramount duty of the state to make ample provision 
for the education of all children residing within its borders, with­
out distinction or preference on account of race, color, caste, or 
sex” (Wash. Const. Art. IX, § 1).

84



35

broad discretion in assigning students to schools, the 
state could have initially required that all students be 
assigned to the nearest or next nearest school to their 
homes. The state could subsequently have granted local 
districts the limited discretion to deviate from this policy 
if required for reasons of health, safety, unfit conditions, 
or the particularized needs of individual students. While 
this procedure would be viewed as expansion rather than 
contraction of local discretion, the end result is the same 
as that achieved by Initiative 350. Thus, the school dis­
tricts' complaint that Initiative 350 unduly constricts their 
authority is unavailing. Whether a neighborhood school 
policy is achieved by expanding or restricting local dis­
cretion, and whatever the time sequence in which the ex­
pansion or restriction is accomplished, the respective 
rights of the state and local districts remain the same. 
The power of the state to order its internal govermental 
processes is unquestionable; the local districts cannot 
claim they possess authority superior to the state that 
created them. States have “extraordinarily wide latitude 
* * # in creating various types of political subdivisions 
and conferring authority upon them.” Holt Civic Club v. 
Tuscaloosa, 439 U.S. 60, 71 (1978). And nothing in 
Hunter v. Erickson, supra, or in any federal constitu­
tional principle restricts the state to a choice of either 
delegating every aspect of student assignment policy to 
local discretion or retaining every aspect for its own 
decisionmaking. Hunter cannot properly be extended to 
intrude so deeply into the ability of the states to order 
the division of government responsibilities between local 
and statewide authorities.

The court of appeals accordingly erred in concluding 
that the state was prohibited by the federal constitution 
from preempting the educational policy decisions of a 
subordinate unit of state government. In the words of 
Mr. Justice Cardozo, a political subdivision, “created by 
a state for the better ordering of government, has no 
privileges or immunities under the federal constitution 
which it may invoke in opposition to the will of its 
creator.” Williams V. Mayor and City Council of Bal-



36

timore, 289 U.S. 36, 40 (1933).88 Under the state con­
stitution, the state has full authority to weigh and decide 
between the competing policies of neighborhood schools 
and homogeneous racial balance. Whether or not the 
schools of the State of Washington will have finely tuned 
racial homogeneity or a neighborhood identity, or some 
combination of both, remains a question for ultimate 
resolution by the state. So long as the state avoids the 
dual school system proscription of the Fourteenth 
Amendment, it remains free to make the tradeoff choices 
between the advantages and disadvantages of neigh­
borhood schools on the one hand, and extensive manda­
tory busing on the other.87

IV. The Other Grounds Relied Upon By The District 
Court Do Not Support The Conclusion That Initiative 
350 Is Unconstitutional

Because the court of appeals majority determined that 
Initiative 350 creates a presumptively invalid racial 
classification, it did not reach the alternative grounds 
relied upon by the district court to find the Initiative 
unconstitutional: that it was motivated by an intent to 
discriminate against racial minorities and is imper-

B0See also Newark V. New Jersey, 262 U.S. 192, 196 (1923) 
(“The City cannot invoke the protection of the Fourteenth Amend­
ment against the State”) ; Hunter V. Pittsburgh, 207 U.S. 161, 178 
(19^7) ( “The number, nature and duration of the powers con­
ferred upon [municipal] corporations and the territory over which 
they shall be exercised rests in the absolute discretion of the State. 
* * * The State, therefore, at its pleasure may modify or with­
draw all such powers * * *”);  Barnes V. D istrict of Columbia, 91 
U.S. 540, 544-545 (1875) (A municipality is merely a department 
of the State, and the State may withhold, grant or withdraw powers 
and privileges as it sees fit. However/''great or small its sphere 
of action, it remains the creature of the State, exercising and hold­
ing powers and privileges subject to the sovereign will). 37

37 As Judge Wright noted in dissent, "[i]n the absence of a duty 
to desegregate, I find no constitutional barrier to the voters’ adop­
tion of a neighborhood schools policy. Although the choice made 
by the voters may have been controversial it was not one they were 
precluded from making” (J.S. App. B-18).



37

missibly overbroad. Although this Court need not address 
these grounds not considered by the court of appeals, 
Pennhurst State School and Hospital v. Halderman, No. 
79-1404 (Apr. 20, 1981), slip op. 23-27; Bivens V. Six 
Unknown Named Agents, 403 U.S. 388, 397-398 (1971), 
they do not in any event support a finding that Initiative 
350 is unconstitutional.*8

1. The district court found that Initiative 350 is 
unconstitutional because invidious discrimination “was 
at least one motivating factor” in its adoption (J.S. App. 
A-35). In reaching this conclusion, the district court 
relied on the multiple-factor analysis set forth by this 
Court in Village of Arlington Heights v. Metropolitan 
Housing Development Corp., 429 U.S. 252, 265-268 
(1977). Upon examination, however, the factors set 
forth in Arlington Heights do not support the conclusion 
that Initiative 850 is animated by an invidious intent.

The district court’s intent analysis purportedly probed 
the impact of the Initiative, its historical background, the 
specific sequence of events leading to its enactment, and 
any departures from substantive or procedural norms that 
occurred in the process. Village of Arlington Heights v. 
Metropolitan Housing Development Corp., supra, 429 
U.S. at 265-268. The district court first reasoned that 
Initiative 850 would have a racially disproportionate im­
pact simply because it mandated a neighborhood school 
policy. The state’s voters “were well aware that the pas­
sage of Initiative 850 would terminate the efforts which 
had been taken by school boards of the state to balance 
schools racially by the mandatory busing of students. 88

88 If, as we have argued (Point I, supra), Initiative 860 
does not establish a racial classification, the intent issue becomes 
critical to the ultimate resolution of the case. See, e.g., Personnel 
Administrator of Massachusetts V. Feeney, supra, 442 U.S. 256. 
Some guidance on the intent issue from this Court, therefore, would 
be appropriate even though it was not addressed by the court of 
appeals. See, e.g., Regents of the University of California V. Bakke, 
438 U.S. 265 (1978). See also note 20, supra; Carlson V. Green, 
446 U.S. 14, 17 n.2 (1980); New York Transit Authority V. Beazer, 
440 U.S. 568, 583 n.24 (1979).



38

Given the segregated housing patterns of the three plaintiff 
school districts, the termination of those efforts could 
only result in racially-imbalanced schools in those dis­
tricts and a disproportionate impact upon minority 
students” (J.S. App. A-33). The court next found that 
the historical background and specific events leading up 
to the Initiative’s adoption supported an inference of dis­
criminatory intent “inasmuch as it was conceived, drafted, 
advocated and adopted for the specific purpose of over­
riding the decision of the Seattle School Board to balance 
Seattle schools racially by means of student assignments” 
{id. at A-34). The court finally held that adoption of 
Initiative 350 was a “marked departure from the pro­
cedural norm” and a “clear[] * * * departure from prior 
state practice” in that “an administrative decision of a sub­
ordinate local unit of government, the Seattle School 
Board, was overridden in a statewide initiative * * *” 
{id. at A-35). All these factors, the court wrote, led 
to the conclusion that “a racially discriminatory intent or 
purpose was at least one motivating factor in the adop­
tion of the initiative” {ibid.).

Contrary to the conclusion of the district court, how­
ever, these factors do not support an inference of dis­
criminatory intent. At most, they evidence that the voters 
of Washington made an informed policy choice that “may 
have been controversial” but was “not one they were 
precluded from making” (J.S. App. B-18) (Wright, J., 
dissenting).

Although termination of mandatory nonneighborhood 
student transfers may result, as the district court noted, 
in some increased racial isolation due to residential pat­
terns, this “impact” of a neighborhood school policy has 
never been found sufficient in itself to invalidate such a 
policy on equal protection grounds.89 See, e.g.f Austin In- 30

30 Furthermore, the district court’s assumption that racial im­
balance inevitably impacts minority student education adversely 
is far from a “certainty” (J.S. App. B-26) (Wright, J., dissenting). 
"The underlying sociological and political assumptions equating 
quality education with integration have been questioned” {id. at



dependent School District v. United States, 429 U.S. 990 
(1976); id. at 991 n.l (Powell, J., joined by the Chief 
Justice and Rehnquist, J., concurring); United States
V. Texas Education Agency, 664 F.2d 162, 168 (5th Cir. 
1977) (official discriminatory intent cannot be inferred 
solely from school board's use of a neighborhood school 
policy); Diaz v. San Jose Unified School District, 612 
F.2d 411, 416 (9th Cir. 1979) (“ [a] neighborhood school 
policy is not constitutionally suspect” ). The racially 
disproportionate impact of governmental action, more­
over, is a reliable indication of discriminatory intent 
only when it is shown that the impact was not only 
anticipated but desired—that is, “that the decisionmaker 
* * * selected or reaffirmed a particular course of action 
at least in part ‘because of,’ not merely ‘in spite of,’ its 
adverse effects upon an identifiable group.” Personnel 
Administrator of Massachusetts v. Feeney, supra, 442 U.S. 
at 279 & n.25. See also Columbus Board, of Education v. 
Penick, 443 U.S. 449, 464-465 (1979).

There is no evidence in this record that a racially dis­
proportionate impact was either anticipated or desired 
by the supporters of Initiative 350. Indeed, Initiative 360 
itself is grounded in the race-neutral belief that neigh­
borhood schools promote the overall health of the public 
school system and benefit minority and nonminority stu­
dents alike (see note 18, supra). Moreover, the sug­
gestion that Initiative 350 would have a discriminatory 
impact was vigorously disputed by its supporters, who 
asserted to the contrary that mandatory noneighborhood 
busing would hasten an exodus of students to private 
schools, thus aggravating the public school system’s exist­
ing racial imbalance and threatening the system’s ed­
ucational quality (note 10, supra). Supporters of the 
Initiative argued that implementation of a neighborhood 
school policy coupled with voluntary integration techniques

B-25). See also N. S t  John, School Desegregation Outcomes for 
Children 186 (1975); Bell, Book Review, 92 Harv. L. Rev. 1826 
(1979); Armor, The Evidence on Busing, 28 Pub. Interest 90 
(1972).

89



could both stem the exodus from public schools and 
racially balance the system in an educationally sound 
manner (ibid.). On this record, the district court did not 
and could not find that Initiative 350 was enacted at least 
in part because it would have a discriminatory impact 
on racial minorities. Thus, the “impact" noted by the 
district court is not probative of discriminatory intent. 
Columbus Board of Education V. Penick, supra, 443 U.S. 
at 464-465; Personnel Administrator of Massachusetts V. 
Feeney, supi-a, 442 U.S. at 279.

The district court’s analysis of the historical back­
ground and events leading to the enactment of Initiative 
350 was extremely limited. The court focused on the fact 
that state voters adopted the Initiative in reaction to a 
mandatory nonneighborhood student assignment scheme, 
but failed to recognize that the state has never operated 
a segregated dual school system. Although there has been 
a history of opposition to nonneighborhood school assign­
ments in the Seattle area (J.S. App. A-34), there is no 
evidence that the Seattle School District or any other dis­
trict in the state has ever engaged in de jure segrega­
tion. On the contrary, the record in this case demonstrates 
continuing efforts by the State of Washington’s school 
system to comply with the state constitutional requirement 
that an adequate education be provided to “all children 
residing within its borders, without distinction or pref­
erence on account of race, color, caste, or sex” (Wash. 
Const. Art. IX, § 1). See notes 2, 14, supra. The dis­
trict court ignored the state's historic policy of nondis­
crimination in its analysis of the motivation behind In­
itiative 350. See notes 22-24 and accompanying text, 
supra.

The district court correctly concluded that Initiative 
350 was “conceived, drafted, advocated and adopted for 
the specific purpose” (J.S. App. A-34) of rescinding the 
Seattle School Board’s decision to implement a race­
conscious student assignment plan that involved transport­
ing students beyond their neighborhood schools. But mere 
rescission of a racial balancing plan and consequent im­
plementation of a neighborhood school policy does not evi-

40



dence invidious discrimination. Cf. Dayton Board of Ed­
ucation v. Brinkman, supra, 433 U.S. at 414. Indeed, 
even the court of appeals conceded that, absent pre­
existing de jure discrimination, the school districts them­
selves could choose to adopt a neighborhood school policy 
without violating the Equal Protection Clause (J.S. App. 
B-10 n.8). If the school districts could adopt such a policy 
consistently with the Fourteenth Amendment, there is no 
reason why a superior decisionmaking entity—the state 
electorate—could not similarly adopt such a policy, espe­
cially when the supporters of that policy, as found by the 
district court, “acted legally and responsibly in [their] 
advocacy of Initiative 860” (id. at A-22) and “took steps 
to avoid race becoming an issue in the campaign” (id. at 
A-23).

The final indicator of discriminatory intent noted 
by the district court—that Initiative 350 constituted 
a “marked departure from the procedural norm” (J.S. 
App. A-35) because state educational policy supplanted 
local policy—has almost no probative weight as evidence 
of racial animus. As has already been developed, state 
supervision of and intrusion upon local educational policy 
is the norm in Washington. Statewide initiatives and 
referendums, furthermore, are widely utilized on many 
issues of public importance. See note 30, supra. See also 
James V. Valtierra, supra, 402 U.S. at 141. The “state 
preemption of local autonomy” effected by Initiative 350 
and noted by the district court is simply not “a departure 
from prior state practice” (J.S. App. A-85). It is thus 
not indicative of invidious intent.

In the final analysis, the district court’s finding of 
discriminatory intent rests solely on its conclusion that 
Initiative 350 was “drafted, advocated and adopted for 
the specific purpose” (J.S. App. A-34) of rescinding a 
racial balancing plan involving mandatory nonneigh­
borhood student transfers when the voters were “well 
aware” (id. at A-33) that the initiative would achieve 
precisely that result. The court concluded, in other words, 
that the voters of the state may not knowingly replace a 
system of racial balancing with a neighborhood school

4 i



policy without raising an inference of racial discrimina­
tion. The record in this case and the prior decisions of 
this Court do not support such an inference.

Contrary to the holding of the district court, the record 
of this case demonstrates that the supporters of Initiative 
350 were not motivated by a desire to discriminate 
against minorities, but rather by a belief that school 
children and their parents derive substantial benefits 
from neighborhood schools, regardless of their racial 
makeup. Supporters of the Initiative believed that man­
datory nonneighborhood assignments and busing of stu­
dents to distant schools deprives both minority and non­
minority parents and children of these benefits and, at 
least in the long run, exacerbates existing racial im­
balance in the public schools (see note 10, supra).40 The 
district court did not find, and there is no evidence in the 
record to indicate, that the assertion of the above views 
during the initiative campaign was insincere.41

40 Experience with mandatory nonneighborhood student assign­
ment and busing plans in many school systems throughout the 
country indicates that this concern may be well-founded. Indeed, 
as three Justices of this Court have observed (Estes V. Metropolitan 
Branches of the Dallas NAACP, supra, 444 U.S. at 450 (Powell, J., 
joined by Stewart and Rehnquist, JJ., dissenting from dismissal of 
certiorari)) :

[Pjursuit of racial balance at any cost * * * is without consti­
tutional or social justification. Out of zeal to remedy one evil, 
courts may encourage or set the stage for other evils. By acting 
against one-race schools, courts may produce one-race school 
systems.

See also id. at 438 ( “It is increasingly evident that use of the 
busing remedy to achieve racial balance can conflict with the goals 
of equal educational opportunity and quality schools”).

41 Aside from the district court's statement that it could "safely 
assume” (J.S. App. A-31) thab a desire to discriminate against 
minorities motivated some persons to vote for the Initiative, there 
is nothing in the district court’s findings or in the record to sug­
gest that a belief in the benefits of neighborhood schools was either 
not held by supporters of the Initiative or was merely a pretense 
for an invidious desire to deny equal educational opportunity to 
minorities.

42



43

Nor are such views inherently suspect. Indeed, the 
district court expressly found (J.S. App. A-23):

A neighborhood school policy has certain advantages 
in that it facilitates community and parental input 
and support for educational and extracurricular pro­
grams; it minimizes safety hazards to children in 
reaching school; it reduces the cost of transporta­
tion; it eases the task of student assignment through 
the use of easily determined standards; and it makes 
for better home-school communication [s].

Because these advantages of a neighborhood school as­
signment policy inure to the advantage of minority stu­
dents and parents no less than to that of the majority 
race, the adoption of such a policy provides no basis in 
itself for an inference of racial animus. And, even if it 
is assumed that the racial balancing scheme that the 
neighborhood school policy replaced provided greater bene­
fit to minority than to majority students, the mere fact 
of replacing one policy with the other shows nothing 
more than a tradeoff of one kind of advantage for an­
other. The choice made by the voters of Washington is 
entirely consistent with a good faith belief that the ad­
vantages for minorities of the neighborhood school sys­
tem outweigh the advantages for them of a racial bal­
ancing system (a preference reflected in the substantial 
support for neighborhood schools in the minority com­
munity itself.)" Because the district court made no 
findings inconsistent with such a belief on the part of the 
sponsors and adopters of the Initiative, its finding of 
discriminatory purpose is entirely without basis. Indeed, 
the fact, that the Initiative imposes no barrier to volun­
tary transfers out of their neighborhood schools by those 
who disagree with the voters’ policy judgment is a fur­
ther indication that the Initiative reflects the voters’

«  Def. Exh. A-137 (an opinion poll of parents and guardians of 
children in Seattle public schools found that 65% of minority 
parents opposed mandatory nonneighborhood student transfers). 
See also Exh. A. 70-71 ("large numbers of minorities are opposed” 
to mandatory racial balancing).



44

effort to promote the best interests of all students, rather 
than a purpose to discriminate.

Nor is there evidence of racial animus in the fact that 
the Initiative may also reflect a policy that students 
should not needlessly be assigned to schools on the basis 
of race (i.e., in the absence of a need to remedy de jure 
segregation). It is entirely consistent with our constitu­
tional ideals for the voters of Washington to share the 
view that “ [t]he time cannot come too soon when no gov­
ernmental decision will be based upon immutable char­
acteristics of pigmentation or origin.” Fullilove V. Klutz- 
nick, 448 U.S. 448, 616 (1980) (Powell, J., concurring). 
See also id. a t 582 (Stewart, J., dissenting) (“* * * by 
making race a relevant criterion * * * in its own affairs 
the Government implicitly teaches * * * that people can, 
and perhaps should, view themselves and others in terms 
of their racial characteristics” ).

Far from ever intimating that a neighborhood school 
policy is necessarily motivated by a discriminatory pur­
pose or is otherwise inherently discriminatory, this Court 
in Swann V. Charlotte-Mecklenberg Board of Education, 
supra, 402 U.S. at 28, unanimously stated that “ [a]ll 
things being equal, with no history of discrimination, 
it might well be desirable to assign pupils to schools 
nearest to their homes.” See also Austin Independent 
School District V. United States, 429 U.S. 990 (1976); 
id. at 991 n.l (Powell, J., joined by the Chief Justice and 
Rehnquist, J., concurring). The district court’s holding 
that Initiative 350 was motivated by a discriminatory 
purpose cannot be sustained unless the Court is now will­
ing to conclude that, as a matter of law, where resi­
dential racial isolation exists a policy favoring neighbor­
hood schools is necessarily motivated by a discrimina­
tory purpose.

2. The district court found that Initiative 350 was 
“overly inclusive in that it prohibits school assignments 
to achieve racial balance even in a school district where 
there is de jure segregation * * *” (J.S. App. A-85). 
In so concluding, the district court erred in several funda­
mental respects.



In the first place, the district court never should have 
reached the overbreadth question, which arose only be­
cause that court improperly rejected the state Attorney 
General's interpretation of Initiative 350. The State has 
consistently taken the position that the Initiative can­
not and will not be read to prohibit the use of non­
neighborhood mandatory student assignments in the event 
that the use of such measures is constitutionally required 
to eliminate de jure segregation. The state Attorney Gen­
eral has averred that if a school district’s use of such meas­
ures is constitutionally required, the state will not prose­
cute the district under the Initiative (App. Br. 37-39). 
The State has “insisted from the outset” that Initiative 
350 permits dismantling of de jure segregation “without 
first having to seek an authorizing court order of some 
sort” (id. at 38-89). As noted earlier (note 28, supra), 
.this interpretation of the Initiative by the state Attor­
ney General is entitled to substantial deference. Fur­
thermore, if the district court doubted the soundness of 
the Attorney General’s interpretation of the Initiative, 
it could have obtained an authoritative resolution of the 
matter by certifying the question of the Initiative’s con­
struction to the State Supreme Court.44 In the absence of 
a state court interpretation of Initiative 350, the district 
court’s rejection of the Attorney Generals’ interpretation 
in favor of what it deemed to be an invalidating construc­
tion of the Initiative was clearly erroneous. See, e.g., 
United States Civil Service Commission v. National As­
sociation of Letter Carriers, 413 U.S. 548, 571 (1973); 
Lynchv. Overholser, 369 U.S. 705,719-711 (1962).

Apart from the improper rejection of the state’s in­
terpretation of its own law, the district court erred in 
applying the overbreadth doctrine to a claim arising 
under the Fourteenth Amendment. This Court has ap­
plied the overbreadth doctrine in only the most unusual 
circumstances, and almost exclusively in cases involving 
First Amendment rights of expression or association. See,

45

«  See Wash. Rev. Code Ann. §§ 2.60.010 to 2.60.090 (1970).



46

e.g., Schaumburg v. Citizens for a Better Environment, 
444 U.S. 620, 624 (1980); Broadrick V. Oklahoma, 413
U.S. 601, 611-616 (1973); Keyishian V. Board of Re­
gents, 385 U.S. 589 (1967); United States V. Robel, 389 
U.S. 258 (1967); Aptheker V. Secretary of State, 378
U.S. 500 (1964); NAACP V. Alabama, 377 U.S. 288
(1964). Indeed, the Court now refers to the overbreadth 
doctrine as a doctrine of the First Amendment. E.g., 
Ulster County Court V. Allen, 442 U.S. 140, 155 (1979); 
Bates V. State Bar, 433 U.S. 350, 380 (1977). The dis­
trict court’s acceptance of the overbreadth challenge here 
extends the overbreadth doctrine past the confines of the 
First Amendment and into the expanse of the Equal 
Protection Clause, thus constituting a marked departure 
from the Court’s traditional practice of according the 
doctrine an extremely narrow scope. See, e.g., Ulster 
County Court v. Allen, supra, 442 U.S. at 154-163 (re­
versing a court of appeals decision to entertain an over­
breadth challenge to a statutory presumption regarding 
illegal possession of firearms); Bates V. State Bar, supra, 
433 U.S. at 380 (finding little, if any, justification for 
applying the doctrine to restrictions on commercial 
speech). See generally Broadrick V. Oklahoma, supra, 
413 U.S. at 613 (even in the First Amendment context, 
the facial overbreadth doctrine “is, manifestly, strong 
medicine’’; “ [i]t has been employed by the Court spar­
ingly and only as a last resort” ).

Even assuming that the plaintiffs in this case were en­
titled to mount an overbreadth attack on Initiative 350,44

44 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 segrega­
tion in their districts. Rather, their contention is that, even assum­
ing Initiative 850’s limitation on mandatory student assignments 
may be constitutionally applied to themselves, the Initiative is 
nevertheless unconstitutional on its face because it will prevent 
other school districts from fulfilling their constitutional duty to 
eliminate de jure segregation. As this Court has repeatedly held, 
such challenges run counter to principles of standing "[ejmbedded



it is plain that the district court erred in its assess­
ment of the attack’s merit. This Court has established 
that to invalidate a statute on overbreadth grounds, “par­
ticularly where [as in this case] conduct and not merely 
speech is involved, * # * the overbreadth of a statute must 
not only be real, but substantial as well, judged in re­
lation to the statute’s plainly legitimate sweep.” Broad- 
rick v. Oklahoma, supra, 413 U.S. at 615. See, e.g., 
Ohralik v. State Bar Association, 436 U.S. 447, 462 
n.20 (1978). The asserted overbreadth of Initiative 350 
—that in mandating a neighborhood school policy it im­
pedes efforts to eliminate de jure segregation—is neither 
real nor substantial.

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 recog­
nize that they are, unconstitutionally segregated. The 
district court made no such finding. Nor is there any 
evidence in the record to support such a finding. Given 
the State of Washington’s tradition of nondiscrimination, 
the fact that the State has never operated a statutory 
dual school system, and the State’s assertion, uncontra­
dicted by the record and uncontested by the parties, that 
“no Washington school district has ever been judicially 
declared to have committed a single act of intentional 
racial segregation in violation of the Fourteenth Amend­
ment in the operation of public schools” (J.S. 4), any

47

in the traditional rules governing constitutional adjudication." 
Broadrick V. Oklahoma, supra, 418 U.S. at 610. As a general rule, 
if  there is no constitutional defect in the application of a statute 
to a litigant, the litigant does not have standing to argue, as the 
school districts have argued here, that the statute “would be uncon­
stitutional if applied to third parties in hypothetical situations." 
Ulster County Court V. Allen, supra, 442 U.S. at 155; Broadrick v. 
Oklahoma, supra, 418 U.S. at 610-611 ( “These principles rest on 
more than the fussiness of judges. They reflect the conviction 
that under our constitutional system courts are not roving com­
missions assigned to pass judgment on the validity of the Nation s 
laws").



assumption that such school districts ftiust exist has 
little justification.45

Initiative 350, furthermore, will not inhibit in any 
“substantial” fashion a school district’s compliance with 
its constitutional duty to operate a unitary school system. 
Because the Initiative specifically provides that it “shall 
not prevent any court of competent jurisdiction from ad­
judicating constitutional issues relating to the public 
schools” (Wash. Rev. Code Ann. I 28A.26.060 (Cum. Supp. 
1981), if an action were brought against a school district 
for violating the Initiative’s ban on nonneighborhood stu­
dent transfers, a district that believed such action was 
constitutionally required would be entitled to assert its 
affirmative) constitutional duty to dismantle de jure segre­
gation as a defense. The Initiative, therefore, would not 
interfere with either the school districts’ duty to conform 
its conduct to constitutional requirements or the courts’ 
obligation to enforce the Constitution. Cf. North Carolina 
Board of Education V. Swann, supra, 402 U.S. at 44-46. 
Moreover, as already developed, the State has consistently 
maintained that the Initiative does not inhibit measures 
necessary to eliminate de jure segregation. See note 28, 
supra.

48

It would be pure speculation to assume further thab, if  such 
districts exist, their de jure racial imbalance is likely to be so sub­
stantial that the districts would be unable to effectively eliminate 
it within the constraints imposed by the Initiative. Cf. Dayton Board 
of Education V. Brinkman, 433 U.S. 406, 420 (1977) (federal court 
must tailor the scope of a desegregation remedy to the "incremental 
segregative effect” of the constitutional violation) ; Pasadena City 
Board of Education V. Spangler, 427 U.S. 424, 436-437 (1976).' The 
Initiative does not prohibib the use of voluntary racial balancing 
measures. Nor does it prohibit the use of mandatory measures if 
imposed in a “nearest or next nearest” school context. The Initia­
tive specifically provides that it in no way limits the authority of 
school districts to close school facilities. Wash. Rev. Code Ann. 
§ 28A.26.030 (Cum. Supp. 1981). See also note 11, supra.



49

The judgment 
reversed.

CONCLUSION

of the court of appeals should be

Respectfully submitted.

December 1981

Rex E . Lee 
Solicitor General

W m . B radford Reynolds 
Assistant Attorney General

L awrence G. Wallace 
Deputy Solicitor General

R ichard G. W il k in s  
Assistant to the Solicitor General

Charles Ju stin  Cooper 
Attorney

i t  i .  » . a s M M H M t r i m r i M  o r r i c i i  1881 3 8 8 0 4 1  7 3 0