Oklahoma City Public Schools Board of Education v. Dowell Brief of Intervenors Amici Curiae in Support of Petitioner for Reversal

    No. 89-1080

In The
SUPREME COURT OF THE UNITED STATES

October Term, 1989

THE BOARD OF EDUCATION OF 
OKLAHOMA CITY PUBLIC SCHOOLS, 
INDEPENDENT SCHOOL DISTRICT NO. 89, 
OKLAHOMA COUNTY, OKLAHOMA,

Petitioner,

v.

ROBERT L. DOWELL, ET AL,

Respondents.

On Writ of Certiorari 
to the United States Court of Appeals 

for the Tenth Circuit

BRIEF OF INTERVENORS 
IN CARLIN V. BOARD OF EDUCATION 

SAN DIEGO UNIFIED SCHOOL DISTRICT 
AS AMICI CURIAE 

IN SUPPORT OF PETITIONER 
FOR REVERSAL

Elmer Enstrom, Jr. 
Counsel of Record 
For Amici Curiae 
In Pro Bono Publico 
890 Knob Hill Drive 
Post Office Box 723 
Julian, California 92036 
(619) 765-0520



TABLE OF CONTENTS

TABLE OF AU TH O RITIES............................................... ii

INTEREST OF AMICI C U R IA E ...................................... 1

SUMMARY OF A R G U M E N T ..........................................  3

ARGUMENT

l. BACKGROUND: DESEGREGATION CASES
ARE U N IQ U E................................................... ....  5

A. Amici Curiae's Presentation is Appro­
priate ........................................................  5

B. History Leading to Swann Doctrine , . 7

C. The Swann Doctrine Does Not Favor
Protracted B using .....................................  9

II. COURT-EXTENDED RACIAL ASSIGNMENTS 
UNCONSTITUTIONALLY DISCRIMINATE 
AGAINST UNWILLING K-4 BYSTANDERS 11

m . COURT-EXTENDED DISCRIMINATORY
ASSIGMENTS UNCONSTITUTIONALLY 
IMPAIR THE LIBERTY AND PRIVACY OF 
UNWILLING K-4 BYSTANDERS . . . .  17

CONCLUSION .................................................................  19

APPENDIX ........................................................................... 1A

Page



Amer. Meat Institute v. Environ. Protect. Agcy.,
526 F.2d 442 (7th Cir. 1975) . . . . . . . .  6

Austin Independent School District v. United 
States, 429 U.S. 990 ( 1 9 7 6 ) ............................  3,11

Bank of California v. Superior Court, 16 Cal.2d 
516(1940) .................................................................. 18

Board of Ed., Etc. v. Superior Court o f Cal.,
448 U.S. 1343 (1980)...............................................  12

Bob Jones University v. United States,
456 U.S. 922 ( 1 9 8 2 ) ...............................................  2

Bob Jones University v. United States,
461 U.S. 574 ( 1 9 8 3 ) ............................  2,4,5,16-17

Bolling v. Sharpe, 347 U.S. 497 (1954) . 13-14,19

Brown v. Board of Education, 341 U.S. 483
(1954) (Brown I ) ..........................................  passim

Brown v. Board o f Education, 349 U.S. 294
(1955) (Brown I I ) ................................................4,13-17

Carlin v. Board of Education, San Diego 
Superior Court No. 303,800   1-3,12,19

Crawford v. Board of Education, 17 Cal.3d 280 
( 1 9 7 6 ) ......................................................................  6

Crawford v. Board of Education, 113 Cal.App.3d 
633 (1980)   15

Crawford v. Board o f Education, 458 U.S. 527 
( 1 9 8 2 ) .................................................................  6,12

ii

TABLE OF AUTHORITIES

Cases: Page



Ill

Dowell v. Okl. City Public Schools, Ind. Dist 89,
677 F.Supp. 1503(W.D.Okl. 1987) . . . .  passim

Griswold v. Connecticut, 381 U.S. 479 (1965) . 4,18

Green v. County School Board, 391 U.S. 430 
( 1 9 6 8 ) ..........................................................  8-10

Jackson v. Pasadena City School District, 
5 9 C a l.2 d 8 7 6 (1 9 6 3 ).........................................  6-7

Keyes v. School District No. 1, Denver, Colo.,
413 U.S. 189 ( 1 9 7 2 ) ............................ 3,4,8,17

Martin v. Wilks, 109 S.Ct. 2180,2185 (1989) . 4,18

Meyer v. Nebraska, 262 U.S. 390 (1923) . . . .  18

Monroe v. Board of Com rs o f City o f Jackson,
Tenn., 391 U.S. 452 (1968)    12

Pierce v. Society o f Sisters, 268 U.S. 510 
( 1 9 2 5 ) .......................................................... 4,18

Plessy v. Ferguson, 163 U.S. 537 (1896) . . . .  7

Regents o f University of California v. Bakke,
438 U.S. 265 (1978) ...............................................  16

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

Constitutional Provisions:

California Constitution, Art. I, Sec. 7A . . . .  . 6

United States Constitution,

Amendment V, Due Process Clause . . 4,19

Amendment XIV, Equal Protection Clause . 7

TABLE OF AUTHORITIES—Continued

Page



IV

Other Authorities: Page

Coleman, A Scholar Who Inspired It Says Busing 
Backfired, (Interview, The National Observer,
June 27, 1975)     13

Coleman, The Concept of Equality o f Educa­
tional Opportunity, reprint in The "Inequality" 
Controversy, Levine and Bane, Editors (Basic 
Books,1 9 7 5 ) ............................................................. 13

Cox, The Role o f the Supreme Court in 
American Government (Oxford Press, 1976) . . 15

Note, 51 Cal.L.Rev. 810 ( 1 9 6 3 ) ..............................  6

Schwartz, The Supreme Court, (Ronald Press,
1957) ............................................................. - • 7

Warren, Memoirs of Earl Warren (Doubleday,
1977)   17

Wright, Witkin on Appellate Court Attorneys,
54 Cal.S.Bar J. 106 (1 9 7 9 ) .....................................  9



BRIEF OF INTERVENORS 
IN CARLIN V. BOARD OF EDUCATION 

AS AMICI CURIAE 
IN SUPPORT OF PETITIONER 

FOR REVERSAL

INTEREST OF AMICI CURIAE*

Amici Curiae are Intervenors—opposing mandatory 
racial assignments—in the school desegregation case entitled 
Carlin, et al., Plaintiffs, v. Board o f Education, San Diego 
Unified School District, Defendant; Groundswell, et al., 
Intervenors, No. 303800, Superior Court, San Diego County, 
California. This Court may take judicial notice of proceedings in 
the "Carlin" case.

The Carlin complaint, based upon stare decisis appli­
cation of judicial decisions, was filed December 4, 1967, as a 
class action by certain black students, among others, versus the 
Defendant Board of Education to "integrate" the San Diego 
Unified School District. The class was described in the Order 
Determining Existence of Class Action, filed December 7, 1973, 
as—

"All students attending the San Diego Unified School 
District and their parents and legal guardians who believe 
that said schools should be racially balanced, if necessary 
through court order."

A m ici—including an association of persons called 
"Groundswell," and some individual students and their parents— 
intervened on December 15, 1980. They alleged in their 
complaint in intervention (pp. 8-10) that it was unconstitutional 
to assign the six intervening students and other students 
similarly situated, because of their race, to particular schools.

Amici later offered proof of signed petitions by 1856 
District students, each "object(ing) to school authorities making

*This brief is filed with the consent of the parties; letters consenting to the 
filing of this brief have been lodged with the Clerk.



2

me, because of my race, go away from my neighborhood public 
school location to classes, without my consent and the consent 
of my parents, as a violation of my rights." Although these 
petitions were not received in evidence, their existence was 
established and an excerpt from an exemplar, marked as a part of 
Carlin Interveners' Exhibit 6 for Identification, is annexed as 
the Appendix. See Carlin reporter's transcript of proceedings, 
July 16, 1981, pp. 190- 197.

Although the Carlin Court has filed an "Order re 
Integration Plan/Final Order" on May 21, 1985, which like the 
trial court's order herein permits neighborhood school 
assignments, it has retained continuing jurisdiction (p.12). 
Thus, those having the status of Amici students remain subject 
to renewal of the contention that racial imbalance through causes 
not attributable to them call for their being racially reassigned 
beyond their neighborhood schools.

Here, as the dissent to the majority opinion at 890 F.2d 
1483 on October 6, 1989, states, "this (Tenth Circuit) court re­
tains jurisdiction and now orders the (Oklahoma City) school 
district to racially balance the elementary schools which will 
most certainly require busing." 890 F.2d at 1506. Should the 
panel majority's order be allowed to stand on this record, San 
Diego "anti-busing" students would become even more 
vulnerable to a request for racial balancing under the stare 
decisis doctrine.

The unwillingness of a number of students to be racially 
assigned away from their neighborhood schools may be inferred 
from the trial court's finding of the probability of "white flight" 
if a "busing" order is carried out. Dowell v. Okl. City Public 
Schools, Ind. Dist. 89, 677 F.Supp. 1503 at 1525 (1987).

Such "busing" assignments would be a form of racial 
discrimination, another form of which prompted the appointment 
of an amicus curiae in Bob Jones University v. United States, 
456 U.S. 922 (1982). It raises issues sufficiently similar to 
those in Bob Jones University v. United States, 461 U.S. 574 
(1983), to garner additional support therefrom for considering 
the following presentation by Amici Curiae.



3

SUMMARY OF ARGUMENT

All Oklahoma City students in grades K-4 have been 
allowed to attend their neighborhood schools since 1985 when 
the compulsory racial assignments to other schools, required by 
a 1972 desegregation plan, were ended by the school board. 
The District Court upheld the neighborhood school plan in June, 
1987 (after a hearing in which it dissolved the 1972 
desegregation decree), finding that during the plan's operation 
the school system has been "unitary" under the Sw ann  
Doctrine. Dowell v. Okl, City Public Schools, Ind. Dist. 89, 
677 F.Supp. 1503,1519,1526 (1987). SeeSwann v, Charlotte- 
Mecklenburg Board of Education, 402 U.S. 1,32 (1971).

A divided three-judge panel of the United States Court of 
Appeals for the Tenth Circuit, over a vigorous dissent by Judge 
Bobby R. Baldock, reversed the district court decision and dis­
approved the neighborhood school plan. 890 F.2d 1483. The 
panel majority's decree will require the racial assignments of 
unwilling students to reduce the racial imbalance that the panel 
found to exist in some of the K-4 schools. See dissent, 890 
F.2d at 1506.

The appellate desegregation decree is unique, to echo 
Justice Lewis F. Powell, Jr,, because its burden-compelling 
children to leave their neighborhood and spend significant time 
each day being transported to a distant school—will fall upon 
innocent children and parents who are not charged with any 
offending action. Austin Independent School District v. 
United States, 429 U.S. 990, at 995, Footnote 5 (1976), and 
Keyes v. School District No. 1, Denver, Colo. (1972), 413 
U.S. 189 at 247, Powell, J., concurring.

Amici complained in their intervention (pp. 9-10) that the 
imposition of such a burden upon the intervening students in 
Carlin, and other San Diego students similarly situated, would 
racially discriminate against them and unconstitutionally infringe 
upon their liberty and privacy. These grounds apply with added 
force here in that the permanent nature of the proposed burden 
upon five-to-ten-year-olds disregards the Swann remedy 
limitations referred to by the trial court. Dowell, supra, 677



4

F.Supp. at 1521. Swann, supra, 402 U.S. at 23,31-32.

When a mandatory elementary school assignment, under 
these conditions, is based solely upon the race of an unwilling 
child, that child is unconstitutionally discriminated against, 
regardless of the purpose, under the racially neutral language in 
Brown v. Board o f Education (Brown II), (1955) 349 U.S. 
294, at 298 "that racial discrimination in public education is 
unconstitutional."

Court-ordered racial assignments away from one's 
neighborhood school impair the assigned children's liberty and 
privacy, to paraphrase Justice Powell in Keyes, supra, 413 
U.S. at 247. They violate the Fifth Amendment of the 
Constitution as to those unwilling, innocent assignees of tender 
age unable to obtain continuing individual representation, who 
are not parties, regardless of its purpose. For those children 
have not had the hearing that Amendment requires by its clause 
that "(n)o person shall...be deprived of life, liberty, or property, 
without due process of law." Compare Martin v. Wilks, 109 
S.Ct. 2180,2185 (1989).

This Court may consider these children's rights favorably. 
Compare Pierce v. Society o f Sisters, 268 U.S. 510 (1925); 
Griswold v. State o f Connecticut, 381 U.S. 479, 481 (1965); 
and Bob Jones University, supra, 461 U.S., at 593.

In summary, these Oklahoma City students are 
constitutionally protected from being racially discriminated 
against and having their liberty and privacy impaired by being 
mandatorily reassigned indefinitely to other than their 
neighborhood elementary schools for racial balance.



5

ARGUMENT

I. BACKGROUND: DESEGREGATION CASES 
ARE UNIQUE

A divided United States Court of Appeals three-judge 
panel for the Tenth Circuit has held unconstitutional the discon­
tinuance of busing for racial balance and the adoption of a 
neighborhood school plan for K-4 students by petitioner because 
it has left some schools racially imbalanced. 890 F.2d 1483.

The trial court had dissolved the injunction under a 1972 
desegregation decree requiring such busing, holding that the 
school system had retained a unitary status and that the 
neighborhood plan had been adopted without discriminatory 
intent. Dowell, supra, 677 F.Supp. at 1515-21.

Judge Baldock, in dissent, deplored the panel majority's 
failure to terminate jurisdiction "when a system has achieved and 
maintained unitary status." 890 F.2d at 1506. Fn. 1. The 
dissent emphasized Justice Powell's observation commencing 
his dissents in the 1979 Columbus and Dayton desegregation 
cases, that "25 years after Brown v. Board, o f Edue. (Brown 
I)... 'the federal judiciary should be limiting rather than 
expanding the extent to which courts are operating the public 
school systems of our country.'" 890 F.2d at 1506. Fn. 1.

To meet the terms of the appellate order, Amici believe the 
trial court will have to order the petitioning school board to 
indefinitely reassign nonconsenting, nonparty elementary 
students, solely on a racial basis, beyond their neighborhood 
schools along the lines sought by Respondents at the trial. See 
Dowell, supra, 677 F.Supp. at 1524-25.

A. Amici Curiae's Presentation is Appropriate

The affirmative relief rendered by the panel majority 
adversely affects parties not joined in Oklahoma City, and 
others like the students in San Diego and elsewhere by virtue of 
the stare decisis doctrine. And it is inconsistent with the 
national policy against racial discrimination in education, as set 
forth in Bob Jones University, supra, 461 U.S. at 593. These



6

exceptional circumstances permit Amici to present issues 
beyond that of the impact of "white flight" upon the litigants. 
Compare Amer. Meat Institute v. Environ. Prot. Agcy., 526 
F.2d 442, at 449 (7th Cir. 1975).

Contentions by amici curiae, raised in behalf of nonparty 
students, have been considered in desegregation cases. A key 
pronouncement in the seminal California case of Jackson v. 
Pasadena City School Dist., 59 Cal.2d 876, at 881, rendered 
June 27, 1963, pertained to school district responsibility for 
affirmative integration in schools in addition to the defendant 
Pasadena district:

"The right to an equal opportunity for education and 
the harmful consequences of segregation require that 
school boards take steps, insofar as reasonably feasible, 
to alleviate racial imbalance in schools regardless of its 
cause."

Footnote 5 in Note, 51 Cal.L.Rev. 810 (1963) points out 
that the complaint in Jackson, supra, —

"was drawn on the theory of affirmative segregation and 
in the intermediate appellate court, counsel for plaintiff 
expressly denied that he was advocating affirmative 
integration. 210 A.C.A. at 658, 16 Cal.Rptr. at 665. 
The question was not argued in the briefs of either party. 
Affirmative integration was urged, however, in two 
amici curiae briefs."

This dictum, under the stare decisis doctrine, became the 
basis of the decision in 1976 in Crawford v. Board of 
Education, 17 Cal.3d 280, which decreed affirmative integra­
tion (which continues in effect except as to "busing") in 
California without the showing of de jure segregation required 
by federal decisions. The "busing" authorized by Crawford 
was disallowed by a 1979 "anti-busing" amendment to Section 
7A, Article I, of the California Constitution, ultimately upheld 
in Crawford v. Los Angeles Board of Education, 458 U.S. 
527, at 533 (1982).



7

Like the amici in Jackson, supra, Amici here are 
presenting underlying issues involving nonparties, which may 
be entertained favorably.

B. History Leading to the Swann  Doctrine

In 1896, the United States Supreme Court held in Plessy 
v. Ferguson, 163 U.S. 537, that the segregation of the races in 
transportation facilities did not violate the Constitution so long as 
the facilities were equal. The majority opinion rationalized that 
any discrimination felt by black persons assigned to separate 
facilities, since they were equal to those used by whites, was 
"not by reason of anything found in the act, but solely because 
the colored race chooses to put that construction upon it." 163 
U.S. at 551.

Justice John Marshall Harlan (I) vigorously dissented, and 
his rationale is summarized by Professor Bernard Schwartz in 
The Supreme Court (Ronald Press, 1957) at page 269:

"Yet, even if the Plessy Court were correct in its 
assumption that segregation is not discrimination, that 
would not make its doctrine consistent with the equal 
protection clause. For that clause bars the states from 
making legal distinctions that are not supported by 
reasonable legislative classifications, and, as already 
emphasized, classification on the basis of race must be 
deemed irrational. Our Constitution, to use the apt 
description of the dissenting Justice in the Plessy case, is 
color-blind; it neither knows nor tolerates classification 
on racial grounds."

Plessy was overruled in 1954 when Brown v. Board 
of Education (Brown I) , 347 U.S. 483, 495, declared that "in 
the field of public education the doctrine of 'separate but equal' 
has no place," and that by forcing the black plaintiffs to attend 
separate schools solely because of their race, the respondents 
denied them equal protection of the laws under the Fourteenth 
Amendment to the Constitution. In Brown /, the Court was 
considering the complaints of black children that they were 
discriminated against by being segregated solely because of



8

their race in separate public schools administered by the 
respondent school authorities under the laws of Kansas, South 
Carolina, Virginia and Delaware, respectively.

Brown I  agreed with Justice Harlan I as to the uncon­
stitutionality of such actions under state laws permitting or 
mandating them. However, it did not mention the Harlan 
dissent and tended to focus upon their effect (segregation) 
rather than the acts of discrimination. Brown I  was initially 
construed as negative in nature, calling only for state neutrality, 
as explained by Justice Powell in his concurrence in Keyes, 
supra, 413 U.S. 189 at 220:

"It was impermissible under the Constitution for the 
States, or their instrumentalities to force children to attend 
segregated schools. The forbidden action was de jure, 
and the opinion in Brown I  was construed—for some 
years and by many courts—as requiring only state 
neutrality, allowing 'freedom of choice' as to schools to 
be attended so long as the State itself assured that the 
choice was genuinely free of official restraint."

Justice Powell goes on to say in Keyes that the doctrine 
of Brown I, as amplified by Brown II, did not retain its 
original meaning:

"In a series of decisions extending from 1954 to 
1971 the concept of state neutrality was transformed into 
the present constitutional doctrine requiring affirmative 
state action to desegregate school systems. The keystone 
case was Green v. Country School Board, 391 U.S. 
430, 437-438... (1968), where school boards were 
declared to have 'the affirmative duty to take whatever 
steps might be necessary to convert to a unitary system in 
which racial discrimination would be eliminated root and 
branch.'" 413 U.S. 220.

Thus, Justice Powell explained, the affirmative-duty 
concept articulated in a rural setting in Green flowered in 
Swann v. Charlotte-Mecklenburg Board o f Education, supra, 
into a new constitutional principle of general application to large



9

urban areas as well.

C. The Sw ann  D o c trin e  D oes Not F a v o r 
P ro tracted  Busing

A truism in the American system of justice is that it is 
delegated to the counsel of the parties the task of shaping the 
issues which are brought before the appellate courts. Edward 
M. W right, Witkin on Appellate Court Attorneys, 54 
Cal.St.Bar Journal 106 (1979).

The issues were shaped in Brown, Green and Swann-- 
relied on for judicially-ordered busing of bystanders—by the 
counsel for the only parties to those actions, namely, the 
minority plaintiffs versus the defendant school authorities.

In Swann, a desegregation plan had been approved for a 
large urban district by the District Court in 1965 based on 
geographic zoning with a free transfer provision, leaving some 
schools racially imbalanced. 402 U.S. at 6,7 (1971).

After the decision in Green and companion cases, the 
Swann plaintiffs moved in September, 1968, for further relief 
based on those cases. The District Court then in effect required 
a plan desegregating all the schools, including the elementary 
schools, to be accomplished by busing students beyond their 
neighborhood schools so that the student bodies throughout the 
system would range from 9% to 38% black. Id. at 7-11.

This Court noted that all the parties agreed (emphasis 
by Amici) that "in 1969 the system fell short of achieving the 
unitary system that those (Green and companion) cases 
require;" but that the board..."reiterated its view that the plan 
was unreasonable." Id. at 7,11.

Dealing with the facts and issue thus presented to it, this 
Court stated:

"O n the facts of this case, we are unable to 
conclude that the order of the District Court is not 
reasonable, feasible and workable..." Emphasis



10

supplied. Id. at 32.

However, the Court also indicated the temporary nature of 
the judicial role.

"At some point, these school authorities and others 
like them should have achieved full compliance with this 
Court's decision in Brown I. The systems will then be 
'unitary' in the sense required by our decision in Green 
and Alexander.

"It does not follow that the communities served by 
such systems will remain demographically stable, for in a 
growing, mobile society, few will do so. Neither school 
authorities nor district courts are constitutionally required 
to make year-by-year adjustments of the racial 
composition of student bodies once the affirmative duty 
to desegregate has been accomplished and racial 
discrimination through official action is eliminated from 
the system. This does not mean that federal courts are 
without power to deal with future problems; but in the 
absence of a showing that either the school authorities or 
some other agency of the State has deliberately attempted 
to fix or alter demographic patterns to affect the racial 
composition of the schools, further intervention by a 
district court should not be necessary." Id. at 31,32.

When this Court was considering the reasonableness of 
the Swann plan the whites were a majority of 71% in the 
Charlotte school system. 402 U.S. at 6. In Oklahoma City, the 
whites are becoming a minority (from 73% in 1969 to 47% in 
1986); and the rest-blacks (40% in 1986) and others classified 
as "minorities" (13% in 1986)-are a emerging majority, (from 
27% in 1969 to 53% in 1986), which will accelerate with 
expanded busing. Dowell, supra, 677 F.Supp. at 1509, 1525.

The absence of "anti-busing" students as parties in Swann 
claiming a constitutional right not to be racially bused from their 
neighborhood schools led to a lack of reference to that right in 
considering the board's claim the busing plan was unreasonable.



11

"An objection to transportation of students may 
have validity when the time or distance of travel is so 
great as to risk either the health of the children or 
significantly impinge on the educational process... It 
hardly needs stating that the limits on time of travel will 
vary with many factors, but probably with none more 
than the age of the students. The reconciliation of 
competing values in a desegregation case is, of course, a 
difficult task with many sensitive facets but fundamentally 
no more so than remedial measures courts of equity have 
traditionally employed." Swann, supra, 402 U.S. at 
31,32.

Consideration of the bystanders' rights under the different 
circumstances in this case is warranted in the light of the 
Swann Court's statement that "(a)bsent a constitutional 
violation there would be no basis for judicially ordering 
assignment of students on a racial basis. All things being equal, 
with no history of discrimination, it might well be desirable to 
assign pupils to schools nearest their homes." Id. at 28.

II . CO U RT-EX TEN D ED  RA CIAL ASSIGNM ENTS 
U N CO N STITU TIO N A LLY  D ISC R IM IN A TE A- 
GAINST UNW ILLING K-4 BYSTANDERS

"(A) desegregation decree is unique in that its 
burden falls not upon the officials or private interests 
responsible for the offending action but, rather upon 
innocent children and parents."

So Justice Powell concluded in Footnote 7 in concurring 
in Austin Independent School District, supra, 429 U.S. at 995.

The authority for burdening innocent children under the 
desegregation decree below rests upon precedents interpreting 
Brown v. Board o f Education. As shown, these precedents 
were established in cases in which "anti-busing" students were 
not parties and their rights were not individually articulated. 
That there are many such objecting students of various races is 
evidenced by their actions when the reversal of a Los Angeles 
Superior Court's busing order became effective on April 20,



12

1981. Among about 7,000 students immediately returning to 
their neighborhood schools for the few remaining weeks of the 
school year were 4,300 "minority" students. Crawford, supra, 
458 U.S. at 534, Fn. 10. Here, the dissent noted support of the 
neighborhood plan by two black parents, one of whom had 
collected 400 signatures favoring it. 890 F.2d at 1531. Fn. 25.

The unique position of these children is pointed out in 
terms of their parents' feelings by the Carlin Court in its 
Memorandum Decision and Order on March 9, 1977:

"There is a substantial percentage of minority 
parents, as well as majority parents, who prefer to have 
their children attend neighborhood schools (footnote 
omitted). Most 'Hispanics’ (41% of the minority school 
population) do not want their children sent to 'Anglo’ 
schools where they will not have the security, fellowship 
and bilingual program of the neighborhood school. A 
substantial number of black parents also object to 
’busing' for various reasons. These parents have not 
had an opportunity to be heard in these proceedings..." 
Page 21.

And school board attempts to present nonparty views by 
arguing, for instance, "flight by whites," if bused, have been 
considered irrelevant because "the vitality of these constitutional 
principles (justifying busing) cannot be allowed to yield simply 
because of disagreement with them." Monroe v. Board of 
Com'rs of City of Jackson, Tenn., 391 U.S. 452,459 (1968).

Consequently, "anti-busing" students have been treated as 
"elements" in school desegregation cases in the manner 
described by then-justice William H. Rehnquist in his order 
denying the request of the school board for a stay of a "busing" 
order in Board of Ed., Etc. v. Superior Court o f Cal. (1980) 
448 U.S. 1343 at 1348:

"...The Board's primary contention here is that 
'white flight,' which all parties concede has taken place in 
the school district, will accelerate if this plan is put into 
effect... Because projections indicated that the school



13

district in 1987 will consist of only 14% white students, 
the Superior Court asserted that its task was to achieve 
the optimal use of white students in the schools so that 
the maximum numbers of schools may be desegregated.

"I find this analysis somewhat troublesome, since it 
puts ’white' students much in the position of textbooks, 
visual aids, and the like-an  element that every good 
school should have. And it appears clear that this Court, 
sooner or later, will have to confront the issue of 'white 
flight' by whatever term it is denominated..."

Since the decision of the Court of Appeals below raises the 
specter of "white flight," it is appropriate to confront that issue 
in the broad sense both of the meaning of that term and of the 
holding in Brown v. Board of Education.

Dr. James A. Coleman, senior author of the 1966 
Equality o f Educational Opportunity Survey, points out that the 
flight from city schools beyond the reach of mandatory busing 
orders, which accelerates when blacks begin outnumbering 
whites, has included "middle-class" blacks as well as whites. 
A Scholar Who Inspired It Says Busing Backfired. T he 
National Observer, June 27, 1975, pp. 1,18.

Dr. Coleman describes the actual decision in Brown as 
"in fact a confusion of two unrelated premises: this new 
concept, which looked at results of schooling, and the legal 
premise that the use of race as a basis for school assignment 
violates fundamental freedoms." The Concept o f Equality of 
Educational Opportunity, reprinted in Part III of!The 
"Inequality" Controversy, Donald N. Levine, Mary Jo Bane, 
Editors (Basic Books, 1975), Page 206. This is a fair 
description when Brown I  and Brown II are read together 
with Bolling v. Sharpe, 347 U.S. 497 (1954).

The "new concept" is derived from the initial answer to the 
question in Brown I  whether "segregation of children in public 
schools solely on the basis of race even though the physical 
facilities may be equal deprive(s) the children of the minority 
group of equal educational opportunities?" 347 U.S. at 493.



14

The Court's immediate answer was that such segregation, with 
the sanction of law, had a detrimental effect upon their 
educational opportunities, as denoting their inferiority, having 
the tendency to retard their educational and mental development, 
and depriving them of some of the benefits they would receive in 
a racially integrated school system. This is social in nature 
because it rests primarily upon evidence then available from the 
social sciences cited in Brown I, 347 U.S. at 494, Fn. 11.

But Brown rests also on the legal premise stated in 
racially-neutral language in Brown II that "(t)he opinions (of 
Brown I  and Bolling)... declaring the  fundamental 
principle that racial discrim ination in public 
education is unconstitutional, are incorporated herein by 
reference." 349 U.S. at 297. (Emphasis added.) It is too 
narrow a reading of Brown to consider that "racial 
discrimination in public education is unconstitutional" only in 
terms of detrimental result to a particular minority perceived 
primarily, if not entirely, from their ratio to students of other 
races in some schools of a school system.

Bolling found that the separation of black plaintiffs from 
whites in the District of Columbia, which could be accomplished 
only by the use of racial classifications, was so unjustifiable as 
to deprive plaintiffs of their liberty in violation of the Due 
Process Clause of the Fifth Amendment. Bolling, supra, 348 
U.S. at 498-9. The use of racial classifications, which Bolling 
referred to (348 U.S. at 498) and disapproved, was no less a 
factor in accomplishing the separation of "minority" students in 
Kansas, Delaware, South Carolina and Virginia, as was 
recognized in Brown II by the incorporation of Bolling.

Brown II ruled that the district courts were to supervise 
the school districts involved in all three decisions in their 
"transition to a system of public education freed of racial 
discrimination." 349 U.S. at 299. This consistent use of 
racially-neutral language in Brown II proscribing racial 
discrim ination emphasizes Brown's legal premise. It is 
distinguishable from Brown's social premise because its major 
influence are principles which bind the judges as well as the 
litigants, and which apply uniformly to all persons not only



15

today but yesterday and tomorrow. See, generally, Archibald 
Cox, The Role of the Supreme Court in American Government 
(Oxford Press, 1976), pp. 109-113.

The two premises are compatible in Brown I  because the 
unconstitutional racial separation and consequent detriment 
suffered by those so separated was caused by a violation of the 
legal premise that "racial discrimination in public education is 
unconstitutional..." Brown II, 349 U.S. at 297.

However, the social premise is not applicable here because 
of changes in the conditions from those in Brown. Among the 
changes, in addition to eliminating the type of deliberate racial 
separation condemned by Brown, are the many continuing 
affirmative remedial steps to integrate the system set forth by the 
trial judge. Dowell, 677 F.Supp. at 1522-24 (1987).

Another change is the progressive outnumbering of whites 
by "minorities" in Oklahoma City. The stare decisis 
applicability of Brown's social premise when whites became 
significantly outnumbered was questioned by a California Court 
of Appeal in Los Angeles, after noting in Crawford v. Board of 
Education, 113 Cal.App.3d 633,642(1980) that the school 
district was 53.6% white in 1968:

"That (outnumbering) of course is the existing 
situation in the District, where white students are now a 
minority in that they comprise 23.7 percent of the total 
student population and 16.1 percent of grades K-3. Yet 
for the purposes of applying the legal principles related to 
school segregation, whites are still designated as the 
'majority,' and segregation is viewed in terms of the 
minorities, or any one of them, being isolated from 
whites." 113 Cal.App.3d 633 at 648 (1980).

"That approach appears to be a hangover from the 
historic situation in some areas of the county which 
produced the background against which the decision in 
Brown v. Board o f Education, supra, was rendered.

"The wisdom of, or the need to, perpetuate that



16

approach here is questionable since, when considered in 
terms of the ethnic composition of the Los Angeles 
Unified School District, it appears to denigrate the dignity 
and capability of the minority students. In effect, it 
implies that ethnic 'minority' children, even when they 
constitute a numerical majority and thus do not suffer the 
psychological trauma of deliberate isolation, cannot 
achieve best results except in the presence of a token 
number of white students." Id., Footnote 3.

The cause of the objectionable result found in Brown 
was racial busing of students like complainant Brown past their 
neighborhood schools for the social purpose of racial separation. 
But in reliance upon the social premise, more is now sought than 
allowing such students to attend their neighborhood schools, or 
to attend other schools voluntarily for integrative purposes, and 
continuing other integrative programs. What is sought is that the 
petitioning school authorities come full circle and reinstate racial 
busing of elementary students, some being no more willing than 
complainant Brown, past their neighborhood schools for the 
social purpose of racial mixing.

Under these facts, the equal protection guarantee to all 
persons does not entitle Respondents to a degree of protection 
greater than that accorded other students. Regents o f University 
of California v. Bakke, 438 U.S. 265, at 295 (1978).

The interests advanced by Amici may be compared to 
those advocated by the amicus in Bob Jones University, supra, 
461 U.S. 574. Bob Jones University, a private religious 
university, had a policy prohibiting interracial dating and 
marriage by its white and black students. This was racially 
discriminatory, according to Internal Revenue Service policy, 
which formed the basis for denying a claimed tax exempt status. 
Id. at 581.

This Court pointed out that there is a national policy 
against racial discrimination in education, and that the 
Government has a fundamental, overriding interest in 
eradicating it. Id. at 593,604. The Court found that the 
university policy was a form of racial discrimination and upheld 
the amicus' position in support of the judgment below finding



17

the IRS policy was properly applied to Bob Jones University. 
Id. at 605.

Judicially-assigning unwilling bystanders to particular 
schools solely on the basis of their race is no less a form of 
racial discrimination than was the policy of Bob Jones 
University. Elements adding to the persuasiveness of this 
argument which were not present in the Bob Jones case, are 
that the racial discrimination here is to be imposed under court 
duress (1) by public officials (2) in a public school system (3) 
upon students of tender age whose attendance is compelled.

Racial assignments of unwilling Oklahoma City K-4 
students violate Brown's legal premise, applying to them in 
1985, today and tomorrow, as restated by Chief Justice Earl 
Warren in The Memoirs of Earl Warren (Doubleday, 1977) at 
pages 287-88:

"Again the Court was unanimous in its decision of 
May 31, 1955, reaffirming its earlier decision of May 17, 
1954, by asserting the fundamental principle that any 
kind of racial discrimination in public education is 
unconstitutional, and that all provisions of federal, state, 
or local law requiring or permitting such discrimination 
must yield to this principle." (Emphasis by Amici.)

II I . CO U RT-EX TEN D ED  D ISC R IM IN A TO R Y  AS­
SIG N M EN TS U N C O N STITU TIO N A LLY  IM ­
PA IR  TH E LIBERTY  AND PRIVACY OF 
U N W ILLIN G  K-4 BYSTANDERS

"Any child, white or black, who is compelled to 
leave his neighborhood and spend significant time each 
day being transported to a distant school suffers an 
impairment of his liberty and privacy." Justice Powell, 
concurring, in Keyes, supra, 413 U.S. at 247.

For some thirteen years black students (in K-4 grades) and 
white students (in 5th grade) were assigned to schools for racial 
balance in Oklahoma City under the Finger plan until 1985 when 
the board allowed K-4 students to return to their neighborhood



18

schools. The appellate decision below would require 
resumption of K-4 racial school assignments of students, 
including nonconsenting, white bystanders, away from their 
neighborhood schools.

The law does not permit the courts to render the type of 
affirmative relief which injures and affects the interests of third 
parties not joined in the action. Martin, supra, 109 S.Ct. at 
2185. Compare Bank o f California v. Superior Court, 16 
Cal.2d 516 (1940).

This Court may take judicial notice of the injury suffered 
by unwilling, affected students and their inability to individually 
intervene and continuously assert their constitutional rights. Nor 
are they required to. Martin, supra, 109 S.Ct. at 2185. This 
Court may consider their rights under the circumstances. 
Compare Griswold, supra, 381 U.S. at 481, and Pierce, 
supra, 268 U.S. 510.

Children are not mere creatures of the State. They are 
constitutionally protected from governmental action infringing 
upon their liberty and privacy. Pierce, supra, 268 U.S. at 535.

Mandatory racial assignments of five-to-ten-year-olds 
away from their home/neighborhood school environs are 
analogous to the assignments of seven-year-olds in ancient 
Sparta referred to in Meyer v. Nebraska, 262 U.S. 390 (1923).

In Meyer ,  this Court prevented Nebraska from 
prohibiting foreign-language instruction in its schools, making 
the point that a desirable end cannot be promoted by prohibited 
means by this analogy:

"In order to submerge the individual and develop 
ideal citizens, Sparta assembled the males at seven into 
barracks and intrusted their subsequent education and 
training to official guardians. Although such measures 
have been deliberately approved by men of great genius 
their ideas touching the relation between individual and 
state were wholly different from those upon which our 
institutions rest; and it hardly will be affirmed that any



19

Legislature could impose such restrctions upon the people 
of a state without doing violence to both letter and spirit 
of the Constitution." 262 U.S. at 402.

The Fifth Amendment provides that "no person shall be 
deprived of life, liberty, or property, without due process of 
law." This Court, in construing that clause, pointed out in 
Bolling, supra, 347 U.S.at 498, that discrimination "may be 
so unjustifiable as to be violative of due process." And racially 
assigning unwilling Oklahoma City students to particular 
elementary schools is as unjustifiable under the circumstances 
here as were the racial assignments of District of Columbia 
students in Bolling.

Unwilling bystanders racially reassigned by the judicial 
arm of the United States would suffer an impairment of liberty 
like that of the students in Bolling. They are entitled to a ruling 
of unconstitutionality such as the Bolling students received after 
a hearing. A fortiori, since the deprivation of liberty and 
privacy is sought to be imposed upon nonparty Oklahoma City 
students without their being heard as required by the Due 
Process Clause of the Fifth Amendment to the Constitution.

C O N C LU SIO N

For these reasons, the Intervenors opposed to judicially 
ordered assignment of students on a racial basis in Carlin v. 
Board o f Education, San Diego Unified School District, as 
amici curiae, respectfully support the Petitioner and the 
neighborhood school plan.

Respectfully submitted,

Elmer Enstrom, Jr.
Counsel for Amici Curiae 

In Pro Bono Publico 
890 Knob Hill Drive 
Post Office Box 723 
Julian, California 92036 
(619) 765-0520

Dated: May 8, 1990



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TO THE BOARD OF EDUCATION, SAN DIEGO UNIFIED SCHOOL DISTRICT:
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classes, without my consent and the consent of my parent(s), as a 
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