Washington State v. Seattle School District No. 1 Brief of Appellants

    No. 81-9

IN THE

SUPREME COURT
OF THE

UNITED STATES

OCTOBER TERM, 1980

State of W ashington, et al.,

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

Appellants,

Appellees.

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

CIRCUIT

BRIEF OF APPELLANTS

Kenneth O. Eikenberry,
Attorney General,

M alachy R. M urphy,
Deputy Attorney General,

T homas F. Carr,
Senior Assistant Attorney General,

T imothy R. M alone,
Assistant Attorney General,

Attorneys for Appellants,
State of Washington, et al.

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



QUESTIONS PRESENTED
I.

Absent any constitutional duty on the part of a local 
school board to implement a racially-oriented mandatory 
bussing program, once such a program is underway, may it 
ever be discontinued without violating the Fourteenth 
Amendment?

II.
Once a racially-oriented mandatory bussing program 

has begun in a non-segregated school district, may the 
preexisting racially-neutral neighborhood school 
assignment policy be restored by the local school board 
which abandoned it, or may it be restored by the superior 
legislative authority of the state through enactment of a 
law applicable to all local school districts?

III.
Does a state statute which does not explicitly use race 

as a criterion nevertheless create an impermissible racial 
classification solely because it addresses specifically a sub­
ject which has a racial nexus?

IV.
Does statutory restoration of a neighborhood school 

assignment policy constitute racially discriminatory state 
action when accomplished in response to a mandatory bus­
sing program designed to achieve a particular level of 
racial distribution of public school students deemed to be 
desirable by a local school board?

V.
Where record evidence shows nondiscriminatory 

intent on the part of voters adopting a state wide 
initiative, does a district court err in finding that the 
legislation was motivated by an intent to discriminate on 
racial grounds while refusing even to consider such evi­
dence?

VI.
Where a state statute is modeled closely on a federal

i



statute explicitly intended to foster a national policy in 
favor of neighborhood school assignment of public school 
students and to inhibit the use of mandatory bussing to 
achieve racial distribution in public schools, is there a 
recognized constitutional ground for upholding the federal 
law while striking down the state law?

m

VII.
Where state officials involved in implementing a state 

law interpret it in a manner which eliminates a particular 
constitutional inquiry, is it error for a federal court to 
interpret that law in a contrary manner, rendering it 
constitutionally suspect?

VIII.
(A) Are political subdivisions of a state, such as 

school districts, within the ambit of 20 U.S.C. § 3205 and 
42 U.S.C. § 1988, so as to entitle them to attorneys’ fees 
when they prevail in suits against the state?

(B) If political subdivisions are so entitled, does a 
district court abuse its discretion under those statutes by 
refusing to order a state to pay the attorneys’ fees of school 
district plaintiffs upon a finding that the district’s prose­
cution of the litigation has already been funded by that 
state?

PARTIES TO THESE PROCEEDINGS
All of the numerous parties of record to these 

proceedings are listed in footnote 2 and Appendix D to the 
Jurisdictional Statement (J.S. 1; J.S. D-l through D-3), 
and for the sake of brevity are not reprinted herein.



T A B L E  OF C O N T E N T S

QUESTIONS PRESEN TED ......................................................  i

PARTIES TO THESE PROCEEDINGS.............................  ii

TABLE OF C O N T E N T S ...........................................................  iii

TABLE OF A U T H O R IT IE S ....................................................  v

OPINIONS B E LO W ......................................................................  1

JU R ISD IC T IO N ............................................................................. 2

CONSTITUTIONAL AND STATUTORY PROVISIONS 
INVOLVED .................................................................................  2

STATEM ENT OF TH E C A S E ...............................................  3

1. The Historical Legal Background....................................  3

2. The Recent Developments Which Precipitated The
Filing Of This Action...........................................................  4^

3. Race-Conscious Programs In The Pasco And Tacoma
School Districts Which Form The Basis For 
Involvement By Those Districts....................................... 5

4. The Procedural History Of This C a se .........................  6

SUM M ARY OF A R G U M E N T .................................................. 7

A R G U M E N T .................................................................................... 9

I. TH E DECISIONS IN HUNTER v. ERICKSON AND  
LEE v. NYQUIST  DO NOT CONTROL TH E DIS­
POSITION OF THIS A P P E A L ......................................  9

A. Prefatory Comments......................................................  9

B. The Essence Of Initiative 350 Differs Greatly 
From The Laws Struck Down In Hunter And Lee 11

C. There Are No Burdens Imposed on Minorities By
Initiative 350 In Washington School Districts . 14

1. No Burdens Are Imposed On Minorities In The
Pasco School District....................................................  15

‘ 2. No Burdens Are Imposed On Minorities In The
Tacoma School District . . ......................................... 17

3. No Burdens Are Imposed On Minorities In The
Seattle School District.................................................. 18

D. In Investigating Whether Initiative 350 Somehow

Page

ill



Page
Imposes Special Burdens On Minorities In The 
Governmental Process, It Must Be Emphasized 
That Washington’s Constitution Makes It The 
Responsibility Of The State —  Not The Local 
School District —  To Provide For The Education 
Of School Children......................................................... 21

E. The Later Decisions Of This Court In 
Washington v. Davis, Village Of Arlington 
Heights v. Metropolitan Housing Development 
Corp., And Personnel Administrator Of 
Massachusetts v. Feeney Suggest That The 
Facial Analysis Employed In Hunter And Lee Is 
No Longer The Correct Approach To Be Taken 23

II. T H E  DISTRICT CO U RT’S FINDING T H A T
INITIATIVE 350 WAS ENACTED, IN PART, 
BECAUSE OF AN INTENT TO DISCRIMINATE  
ON RACIAL GROUNDS WAS- W R O N G LY  
PREMISED ON AN IPSO FACTO RATIONALE  
AND ITS CATEGORICAL DECLINATION EVEN  
TO CONSIDER OFFERED EVID EN CE OF 
BENIGN SUBJECTIVE IN TEN T ON TH E PART  
OF TH E W ASHINGTON ELECTORATE EF­
FECTIVELY T H W A R T E D  T H E  STATE  
DEFENDANT’S FACTUAL D EFEN SE....................... 27

III. INITIATIVE 350 REFLECTS A NATIONAL
POLICY IN FAVOR OF NEIGH BORHOOD  
SCHOOL ASSIGNM ENT MADE APPLICABLE  
BY CONGRESS TO DEPARTM ENTS OF TH E  
FEDERAL G O V E R N M E N T .............................................  35

IV. INITIATIVE 350 DOES NOT IMPOSE AN EXTR A
AND U N C O N ST IT U TIO N A L  BURDEN ON  
SCHOOL DISTRICTS CONFRONTED W ITH A 
DUTY TO CURE DE JURE SEGREGATION . . . .  37

A. The Initiative Does Not Prohibit Assignment Of
Students To Remedy De Jure Segregation . . . .  37

B. A Requirement Of Prior Judicial Determination
Would Not Render The Act Unconstitutional . 40

V. THE NINTH CIRCUIT PANEL ERRED IN RE­
VERSING THE DISTRICT COURT’S DENIAL OF 
ATTORNEY’ FEES TO TH E SCHOOL DISTRICTS 43

A. The Court Of Appeals Judgment On Attorneys
Fees Itself Constitutes An Abuse Of Discretion 44

IV



Page
B. The Court Of Appeals In Effect Injected Itself

Into The State’s Legislative Appropriation Proc­
ess ..........................................................................................  45

C. It Is Doubtful That Appellee School Districts 
Even Fall Within The Ambit Of The Attorneys’
Fees Statutes......................   45

CONCLUSION.................................................................................  47

TABLE OF CASES
Anthony v. Commonwealth of Massachusetts, 415 F. Supp.

485 (1976) .................................................................................  26

Austin Independent School District v. United States, 429
U.S. 990 (1976)........................................................................30, 31

Bolling v. Sharp, 347 U.S. 497 (1954).................................. 37

Brinkman v. Gilligan, 518 F.2d 853 (6th Cir., 1975), cert, 
den., sub nom. Dayton Board of Education v. 
Brinkman, 423 U.S. 1000 (1975) ....................................  36

Broderick v. Oklahoma, 413 U.S. 601, 618-619 (1973).. 40

Brown v. Board of Education, 347 U.S. 483 ( 195 4 ) . . . .  40

Brown v. Califano, 627 F.2d 1221 (D.C. Cir., 1980).............17

City of Memphis v. Green, 49 USLW 4389 (April 20, 1981) 23

Dayton Board of Education v. Brinkman, 433 U.S. 406
(1977)..............................................................................29 ,30 ,31 ,32

Deal v. Cincinnati Board of Education, 369 F.2d 55 (6th 
Cir., 1966), cert. den. 389 U.S. 847 (1967) ................ 31

Diaz v. San Jose Unified School District, 612 F.2d 411 (9th
Cir., 1979) .................................................................................  31

Feeney v. Cornmonweath of Massachusetts, 451 F.Supp.
143 (1978) .................................................................................  26

Gomperts v. Chase, 329 F.Supp. 1192 (1971) ..................  30

Higgins v. Board of Education of Grand Rapids, 508 l* .2d 
. 779 (6th Cir., 1974)............................................................... 30,31

Hills v. Gautreaux, 425 U.S. 284 (1976).............................  37

Hunter v. Erickson, 393 U.S. 385 (1969) .......... 8 ,9 ,11 ,12,13,
14, 18, 23,25, 28, 35, 37

James v. Valtierra, 402 U.S. 137 (1971).......................... 12,13,18

v



Keyes v. School District No. 1, 413 U.S. 189 (1973) 7,31,41

Law Students Research Council v. Wadmond, 401 U.S.
154, (1971).................................................................................  40

Lee v. Nyquist, 318 F.Supp. 710 (W.I).N.Y., 1970), aff’d
402 U.S. 935 (1971)...................... 8 , 9 ,11 ,13 ,14 ,23 ,

25, 27, 28, 35, 37

Lynch v. Overholser, 369 U.S. 705 (1962) .........................  40

Massachusetts v. Feeney, 434 U.S. 884 (1977)..................  26

Morales v. Shannon, 516 F.2d 411 (1975), cert, den., sub
nom., Shannon v. Morales, 423 U.S. 1034 (1975) . . 36

NAACP v. Lansing, 559 F.2d 1042 (6th Cir., 1 9 7 7 ) . . . .  15

National League of Cities v. Usery, 426 U.S. 833 (1976) 45

Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968) 46

Personnel Administrator of Massachusetts v. Feeney, 442
U.S. 256 (1979) ................................................................ 23,26 ,27

San Antonio Independent School District v. Rodriguez,
411 U.S. 1, (1 9 7 3 ).................................................................. 45

Seattle School District No. 1, et al. v. State of Washington,
et al., 90 Wn.2d 476, 585 P.2d 71 (1 9 7 8 ) .................. 21, 22

Seattle School District No. 1, et al. v. State of Washington, 
et al., 473 F.Supp. 996 (1979)...........................................

Spangler v. Pasadena Board of Education, 427 U.S. 424
(1976) ..........................................................................................  41

State ex rel. Day v. Martin, 64 Wn.2d 511, 392 P.2d 435
(1964) ..........................................................................................  39

Swann v. Charlotte-Mecklenburg Board of Education, 402
U.S. 1 (1971)....................  31

United States v. Texas Education Agency, 564 F.2d 162
(5th Cir., 1977)........................................................................  30

U.S. Civil Service Commission v. National Letter Carriers
Association, 413 U.S. 548, (1973)....................................  40

University of California Regents v. Bakke, 438 U.S. 265
(1978) .......................................................................................... 41,42

Village of Arlington Heights, et al. v. Metropolitan 
Housing Development Corporation, et al., 429 U.S. 252
(19 77 ) .................................................................................. 23, 24, 25

Page

vi



Washington v. Davis, 426 U.S. 229 (1 9 7 6 )...............8 ,23,24,25,
26, 28, 34

United States Statutes
20 U.S.C., § 1701 (Equal Educational Opportunities Act

of 1 9 7 4 ).......................................................................2 , 8 ,35 ,36 ,37

20 U.S.C., § 3205 ..........................................................................  2, 45

28 U.S.C., § 1254(2)......................................................................  2

42 U.S.C., § 1988 (1976 Civil Rights Attorneys’ Fees
Award Act) ...............................................................................2, 45

Washington Statutes
Chapter 49.04 R C W ...................................................................... 3

Chapter 28A.57 R C W ...................................................................  3

Chapter 28A.58 R C W .................................................................... 3

Chapter 325, Laws of 1977, 1st Ex. Sess. (Levy Lid Act) 22

Chapter 359, Laws of 1977, 1st Ex. Sess. (Basic Education
Act of 1977) ............................................................................. 22

Initiative Measure No. 350 (Chapter 28A.26 RCW) ..Passim

RCW 3.80.040...................................................................................  3

RCW 9.91.010...................................................................................  3

RCW 18.85.230.................................................................................  3

RCW 28A.02.050 ............................................................................. 3

RCW 28A.2 6 .0 1 0 ............................................................................  4, 5

RCW 28A.26.060 ............................................................................  5

RCW 35.81.170.................................................................................  3

RCW 36.27.020(2)............................................. i ..........................  39

RCW 36.27.020(3)..........................................................................  39

•RCW 41.14.180.................................................................................  3

RCW 43.01.100.................................................................................  3

RCW 43.10.030.................................................................................  39

RCW 49.60.176.................................................................................  3

Page

vii



RCW 49.60.178.................................................................................  3

RCW 49.60.180.................................................................................  3

RCW 49.60.200.................................................................................  3

RCW 49.60.215.................................................................................  4

RCW 49.60.222.................................................................................  4

§ 94, Chapter 339, Laws of 1979, 1st Ex. Sess. 22

§ 96, Chapter 339, Laws of 1979, 1st Ejc. Sess. 22

§ 97, Chapter 339, Laws of 1979, 1st Ex. Sess. 22

Title 28A R C W .................................................................   3

United States Constitution
Fourteenth Amendment (Equal Protection Clause). .  .Passim 

Fifth Amendment (Due Process Clause).............................  36

Washington State Constitution
Article I X .......................................................................................... 2, 21

Article IX, § 1 .................................................................................  3

Page

viii



No. 81-9

1

IN THE

SUPREME COURT
OF THE

UNITED STATES

OCTOBER TERM, 1980

State of W ashington, et al.,
Appellants,

v.

Seattle School District No. 1, et al.,
Appellees.

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

CIRCUIT

BRIEF OF APPELLANTS

OPINIONS BELOW
The Findings of Fact, Conclusions of Law and Memo­

randum Opinion of the U.S. District Court for the Western 
District of Washington, entered on June 15, 1979 are 
reported at 473 F.Supp 966 (J.S. A-l through A-36). The 
Declaratory Judgment and Permanent Injunction entered 
by the District Court, is reprinted at J.A. 8-9. The District 
Court’s Order Denying Attorneys’ Fees is reprinted at J.S. 
C-l through C-4. The December 16, 1980 opinion of a 
three-judge panel of the U.S. Court of Appeals for the 
Ninth Circuit is reported at 633 F.2d 1338 (J.S. B-l 
through B-29).



2

JURISDICTION
This appeal is primarily taken from a judgment of the 

Court of Appeals for the Ninth Circuit upholding a 
decision of the U.S. District Court for the Western District 
of Washington declaring invalid a Washington state 
statute, Initiative Measure No. 350 (now codified as chap­
ter 28A.26 RCW), as repugnant to the Equal Protection 
Clause of the Fourteenth Amendment to the United States 
Constitution. Appeal is also taken from the Ninth Circuit’s 
reversal of the District Court’s denial of awards of 
attorneys’ fees to the original plaintiff school districts and 
intervenors.

The Court of Appeals filed majority and dissenting 
opinions on December 16, 1980. A timely filed Petition for 
Rehearing and Suggestion for En Banc Determination was 
thereafter denied on March 26, 1981. (J.S. E-l).

Appeal is now taken to this Court pursuant to 28 
U.S.C. § 1254(2). A copy of the Notice of Appeal was filed 
with the Clerk of the Ninth Circuit on May 18, 1931. (J.S. 
D-l through D-6).

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED1

United States Constitution, Fourteenth Amendment 
(Equal Protection Clause).

Washington State Constitution, Article IX.
Initiative Measure No. 350 (now codified as chapter 

28A.26, Revised Code of Washington).
20 U.S.C. 1701, et seq., Equal Educational Opportuni­

ties Act of 1974).
42 U.S.C. 1988 (1976 Civil Rights Attorneys’ Fees 

Award Act).
20 U.S.C. 3205 (allowing awards of attorneys’ fees in 

certain educational cases).

'These constitutional and statutory provisions are set out in full in 
the Jurisdictional Statement (J.S. F-l through F-18).



3

STATEMENT OF THE CASE
1. The Historical Legal Background.
The Washington Constitution, adopted in 1889, has 

always provided in Article IX, § 1 that:
“ It is the paramount 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.

The state has historically fulfilled this constitutional duty 
through a comprehensive legislative scheme authorizing 
the creation of local school districts empowered by the 
legislature to do those things necessary to educate Wash­
ington’s children. See, generally, Title 28A RCW; see, in 
particular, chapter 28A.57 RCW and chapter 28A.58 RCW.

In accordance with Article IX, § 1, supra, the State of 
Washington has always operated a unitary public school 
system. To date, no Washington school district has ever 
been judicially declared to have engaged in racial segrega­
tion in violation of the Fourteenth Amendment in the 
assignment of students in Washington’s public schools. 
Moreover, the state legislature has consistently protected 
and enhanced the exercise of civil rights by all persons 
within the state.2

2The creation of a comprehensive scheme of civil rights law began a 
full five years before this Court’s decision in Brown u. Board of 
Education, 347 U.S. 483 (1954). The statutory provisions include: RCW 
9.91.010 (making it a misdemeanor to deny the full enjoyment of any 
public facilities by acts “ directly or indirectly” causing persons of any 
race to be treated as not welcome); RCW 18.85.230 (prohibiting dis­
crimination in hiring or sales activity by real estate workers and 
salesmen); RCW 28A.02.050 (prohibiting discrimination by any school 
district in employment; RCW 3.80.040 and RCW 35.81.170 (prohibiting 
discrimination in “ urban renewal” projects); RCW 41.14.180 
(prohibiting discrimination in appointments and promotions in county 
sheriffs offices); RCW 43.01.100 (prohibiting questions relative to any 
applicant’s race on any application for employment in state govern­
ment); chapter 49.04 RCW (providing for affirmative action improving 
minority race representation in trade apprenticeships). RCW 49.60.176 
(prohibiting racial discrimination in credit transactions); RCW 
49.60.178 (prohibiting racial discrimination in insurance transactions); 
RCW 49.60.180 (prohibiting racial discrimination in labor union prac­
tices); RCW 49.60.200 (prohibiting racial discrimination in employment



4

2. The Recent Developments Which Pre­
cipitated The Filing Of This Action.

The Seattle School District is the largest of Washing­
ton’s 300 school districts. At the time of trial the District 
had a total student enrollment of approximately 54,000, of 
which 37.3% were identified as minority students. 
(Finding of Fact 1.1; J.S. A-l).

In early 1977, the Seattle School Board, by resolution, 
established criteria for determining whether a given school 
within the District was '‘racially imbalanced.” Racial im­
balance was defined by the board’s resolution as:

“ * * * the situation that exists when the combined
minority student enrollment in a school exceeds the 
District-wide combined minority average by 20 per­
centage points, provided that the single minority en­
rollment (as defined by current federal categories) of 
no school will exceed 50 percent of the student body.” 
(Finding of Fact 6.9; J.S. A-17; J.A. 8).

The District thereafter developed a mandatory bussing 
program designed to eliminate any racial distribution of 
students in Seattle schools which did not conform to this 
standard.

When the final version of this bussing program was 
decided upon and scheduled to commence in the 1978-79 
school year, opponents of the plan first attempted to 
enjoin its implementation in state court. Failing to do so, 
they then drafted, filed, solicited signatures for and cam­
paigned for passage of Initiative Measure No. 350 at the 
1978 General Election. The initiative was placed on the 
ballot and approved by the voters in each of Washington’s 
39 counties at that election.

Initiative Measure No. 350 provides in § 1 (now 
codified as RCW 28A.26.010) that:1

“ * * * no * * * school district * * * shall di­
rectly or indirectly require any student to attend a 
school other than the school which is geographically

agency practices); RCW 49.60.215 (prohibiting racial discrimination in 
amusement); and RCW 49.60.222 (prohibiting racial discrimination in 
real estate transactions).

aThe full text of the law is reprinted at J.S. F-2 through F-4.



5

nearest or next nearest the student’s place of resi­
dence * * *”

The following exceptions are then carved out of this 
central policy:

* *
“ (1) If a student requires special education, care or 
guidance, he may be assigned and transported to the 
school offering courses and facilities for such special 
education, care or guidance;
“ (2) If there are health or safety hazards, either natu­
ral or man made, or physical barriers or obstacles, 
either natural or man made, between the student’s 
pace of residence and the nearest or next nearest 
school; or
“ (3) If the school nearest or next nearest to his place 
of residence is unfit or inadequate because of over­
crowding, unsafe conditions or lack of physical facili­
ties.”

An additional exception is embodied in § 6 (RCW 
28A.26.060) as follows:

“This chapter shall not prevent any court of compe­
tent jurisdiction from adjudicating constitutional 
issues relating to the public schools.”

From the outset of this litigation the state has consistently 
interpreted this section to allow any Washington school 
district to assign students away from their neighborhood 
schools where the state or federal constitution requires 
such assignment. The Attorney General continues to 
adhere to this interpretation.

3. Race-Conscious Programs In The Pasco 
And Tacoma School Districts Which Form The 
Basis For Involvement By Those Districts.

Aside from the Seattle School District, the Pasco and 
Tacoma School Districts are the only other Washington 
school districts which operate programs designed to alter 
and control racial distribution of students in their public 
schools.

The Pasco School District operates a one-way bussing 
program which it first implemented in 1965 when it closed 
its one predominantly-black elementary school, thereafter



6

bussing minority students from the so-called East Pasco 
area of that District to other schools in the District located 
outside this neighborhood. (Finding of Fact 4.3; J.S. A-9).

The Tacoma School District has no mandatory 
bussing program. Instead, it operates a voluntary 
“magnet” program at two of its schools, thereby maintain­
ing acceptable racial distribution of students throughout 
the entire District. The District also adheres to an “ open 
enrollment” policy which allows any student within the 
District to attend the school of his or her choice, subject to 
practical limitations, using the Tacoma transit system. 
(Findings of Fact 5.1 through 5.16; J.S. A-10 through A- 
14).

4. The Procedural History Of This Case.
The Seattle, Tacoma and Pasco School Districts, 

joined by a number of individual plaintiffs, filed the initial 
complaint herein on November 30, 1978. The state defend­
ants agreed to the entry of a temporary restraining order 
staying implementation of the newly-enacted law pending 
a hearing. On February 9, 1979, the District Court, after 
hearing, entered a preliminary injunction and, at the same 
time, allowed intervention by several other parties 
plaintiff. The principal complaint in intervention (filed by 
the so-called “ Seattle Intervening Plaintiffs” ) alleges that, 
regardless of the constitutionality of Initiative Measure 
No. 350, it cannot be applied to the Seattle School District 
since that District has committed past acts of de jure 
segregation. The District Court ordered that the constitu­
tionality of the initiative (i.e., on its face or as applied 
generally) would be taken up first (“Phase 1” ). It further 
directed that “ Phase II” of the proceedings, if necessary, 
will be addressed to tire question of whether or not the law 
may constitutionally be applied in any given case (i.e., 
whether or not de jure segregation exists so as to preclude 
its application).

Trial of the so-called “Phase I” issues was held in late 
April and early May, 1979. On June 15, 1979, the District 
Court entered findings of fact and conclusions of law 
accompanied by a memorandum opinion. Entry of



7

judgment was delayed pending disposition of requests for 
awards of attorneys’ fees. On August 29, 1979, the District 
Court entered its final declaratory judgment, stating, in 
part, as follows:

“ * * * Initiative 350 is declared unconstitutional in
that it denies equal protection of the law to racial 
minorities in contravention of the Fourteenth 
Amendment to the United States Constitution in the 
following respects:
“ (a) It creates an impermissible racial classification 
by forbidding mandatory student assignments for 
racial reasons while permitting such assignments for 
purposes unrelated to race. No compelling state inter­
est justifies that racial classification.
“ (b) A racially discriminatory intent or purpose was 
one of the factors which motivated the adoption of 
the initiative.
“ (c) It is overly inclusive in that it prohibits a school 
district from implementing a mandatory student as­
signment program even though the school district 
may be under a constitutional duty to eliminate seg­
regation.” (J.A. 8).
A Ninth Circuit panel majority affirmed the District 

Court, though on a limited basis, saying:
“ We find it unnecessary to discuss the District 
Court’s holding that Initiative 350 was motivated by a 
discriminatory purpose and is unconstitutionally 
overbroad because we conclude that the statute was 
correctly struck down as an impermissible legislative 
classification based on racial criteria. Hunter v. 
Erickson, * * * Lee v. Nyquist, * * *” (J.S. B-
4).

SUMMARY OF ARGUMENT
Clearly, a state may not maintain a neighborhood 

.school policy as a means (for the purpose) of keeping its 
schools racially segregated. For that would itself be de jure 
segregation. And in such case bussing could be required — 
and implemented — without violating Initiative 350. 
Keyes u. School District No. I, 413 U.S. 189 (1973).

There are also, however, demonstrably good reasons 
for neighborhood schools — reasons which have made



8

sucli schools an almost universal tradition throughout not 
only the state of Washington but the entire nation.

Initiative 350 simply says, therefore, as a matter of 
state policy to local school districts:

“ We the people of this state, exercising our reserved 
legislative authority under the state Constitution, want 
you to retain a neighborhood school policy,4 as a general 
matter (with exceptions for special education, physical 
conditions, etc.) until such time as it is determined that de 
jure segregation exists.

This directive, we urge, is not unconstitutional under 
the Fourteenth Amendment — any more than is the 
similar directive of Congress under the Equal Educational 
Opportunities Act of 1974 (20 U.S.C. § 1701, et seq., 
discussed below) unconstitutional under the Fifth Amend­
ment. It does not run afoul of either Hunter u. Erickson, 
393 U.S. 385 (1969) or Lee v. Nyquist, 318 F.Supp. 710 
(W.D.N.Y., 1970), aff’d 402 U.S. 935 (1971) upon which 
both courts below erroneously relied. Its passage does not 
manifest a collective intent to engage in racial discrimina­
tion under the test laid down by this court in Washington 
u. Davis, 436 U.S. 229 (1976), and its progeny. It in no way 
stands as an unconstitutional state barrier to the elimina­
tion of de jure segregation if such should be found, in any 
school district, to exist.

Therefore, the ruling below, holding Initiative 350 un­
constitutional on its face, should be reversed.

The Court of Appeals also erred, and abused its own 
discretion, in reversing the District Court and awarding at­
torneys’ fees to the three school districts. Its opinion 
amounts to an approval of “ double dipping” by public 
agencies, as well as an unwarranted intrusion into the 
internal appropriation process of the state. As public agen­
cies, rather than private litigants, the school districts do

4By neighborhood school policy, we here mean— as did the framers 
of Initiative 350- a policy which, as a general proposition, allows all 
students desiring to remain in their own neighborhood schools (nearest 
or next nearest) to do so while, at the same time, permitting local school 
administrators to provide for attendance elsewhere on a strictly volun­
tary basis.



9

not even fall within the ambit of the attorneys’ fee acts, 
which were intended to foster private enforcement of the 
civil rights laws.

ARGUMENT

I. THE DECISIONS IN HUNTER V. ERICKSON AND 
LEE V. NYQUIST DO NOT CONTROL THE DISPO­
SITION OF THIS APPEAL

The respective opinions of the District Court and the 
Ninth Circuit make it quite clear that both of the Courts 
below regarded the decisions of this Court in Hunter u. 
Erickson and Lee u. Nyquist to be dispositive of this case. 
In so doing, they seriously erred.

A. Prefatory Comments:
Some preliminary points should be noted. The oft-re­

peated statement that Initiative 350 “ * * * forbids
mandatory student assignments for racial reasons” while 
“ * * * permitting such assignments for purposes
unrelated to race” is, quite simply, incorrect. This state­
ment both overstates and understates what the initiative 
actually does. First, the initiative does not prohibit all 
mandatory student assignments for racial reasons; it does, 
however, severely limit such assignments (i.e., to those 
schools nearest and next nearest to the student’s home). 
This point is important for a very obvious reason: If the 
purpose of Initiative 350 had been to prevent any 
increased racial balance in the schools, it certainly failed to 
accomplish that purpose, for it allowed mandatory assign­
ments to the next nearest school for any purpose, 
including the achievement of greater racial balance. This 
is, we suggest, a strong indication that the purpose of 
Initiative 350 was not to prevent increased racial balance 
at all.

Second, the types of mandatory assignments which 
the initiative does in fact restrict are not confined to 
mandatory assignments for the purpose of achieving 
greater racial balance. The initiative limits mandatory as­
signments away from the nearest or next nearest school



10

except for the reasons stated in § 1(1) through (3) and § 6 
of the initiative. And those exceptions all focus in § 1(1) 
through (3) on the educational, health, and safety needs of 
the particular students, and the inability of a particular 
neighborhood school to meet those needs.5

Reasons stemming from administrative convenience, 
such as the desire to fill up empty classrooms at the 
opposite end of a school district, the desire to achieve a 
balanced classroom size between the various schools in the 
district, either to accommodate the teaching staff or for 
any other reason, the desire to obtain more transportation 
money from the state; all these provide no escape from the
initiafive’s limitation.6__ ______________________________

5Again the three exceptions are as follows:
“ (1) If a student requires special education, care or guidance, he 
may he assigned and transported to the school offering courses and 
facilities for such special education, care or guidance;
“ (2) If there are health or safety hazards, either natural or man 
made, or physical harriers or obstacles, either natural or man made, 
between the student’s place of residence and the nearest or next 
nearest school; or
“ (3) If the school nearest or next nearest to his place of residence is 
unfit or inadequate because of overcrowding, unsafe conditions or 
lack of physical facilities.”
bThe District Court’s Finding of Fact No. 8.3 was that “ [e]xcept for 

racial balancing purposes. Initiative 350 permits local school districts to 
assign students other than to their nearest or next nearest schools for 
most, if not all, of the major reasons for which, students are at present 
assigned to schools other than their nearest or next nearest schools 
(emphasis added).” (J.S. A-24). This Finding was specifically footnoted 
by the Ninth Circuit. (J.S. B-6).

The retained limitation on forced bussing to achieve balanced 
classroom sizes and school enrollments is, alone, quite significant. 
Newspaper accounts on both sides of the state just prior to the 1978 
general election detailed instances oi vocal opposition (by both school 
district officials and parents) to mandatory bussing of school children 
for purposes entirely unrelated to race. (Exs. A -130 and 117, Tr. 574, 
937). Indeed, in the Spokane School District, a citizens committee was 
officially established to devise methods to prevent any necessity for 
bussing school children to accommodate anticipated population shifts 
within the district, a development which has nothing to do with race. 
Tr. 930-913.

Other forms of rucially-unrelated extra-neighborhood bussing 
restricted by the Initiative are referred to, for example, in the concerns 
expressed by the Seattle School District’s own attorneys several months 
prior to the 1978 General Election (Ex. A 9, Tr. 160):

The Initiative as drawn will affect more than just the Seattle



11

With these major features of the Initiative in mind, 
we turn to Hunter and Lee, to see if they are controlling.

B. The Essence Of Initiative 350 Differs 
Greatly From The Laws Struck Down In Hunter 
And Lee.

In Hunter the electorate in the City of Akron 
amended the charter of that city to provide that any 
ordinance enacted by the city council dealing with racial, 
religious or ancestral discrimination in housing would not 
become effective unless approved by a majority of the city 
voters. The charter imposed this requirement of voter ap­
proval upon no other type of ordinance. Indeed, housing 
ordinances dealing with issues other than discrimination 
in sales or rentals remained effective merely upon apprais­
al by the city council, just as before.

This Court found the amendment to be a denial of 
equal protection in that it created an explicitly racial 
classification, treating racial discrimination in housing dif­
ferently from other matters relating to housing.

“ Moreover, although the law on its face treats Negro 
and white, Jew and gentile in an identical manner, the 
reality is that the law’s impact falls on the minority. 
The majority needs no protection against 
discrimination and if it did, a referendum might be 
bothersome hut no more than that. Like the law 
requiring specification of candidates’ race on the * *

School District. Many school districts in the state transport 
students beyond their next nearest school for various reasons in­
cluding the desire to receive increased transportation funds from 
the state.
The arguments contained in the official voters pamphlet sent to all 

registered voters in the state prior to the 1978 General Election (Ex. 2, 
Tr. 23) likewise referred to other forms of non race-related bussing 
effected by the Initiative:
* 350 prohibits assignment of students outside their district; thus, it

would restrict interdistrict cooperative programs.
350 would in some cases prohibit changing the grades offered in 
particular schools, such as converting some three-year to four year 
high schools. It would prohibit most disciplinary transfers and the 
redrawing of school boundary lines to make efficient use of build­
ings. It would mean costly interference with location of special edu­
cation programs.



12

ballot, * * * [the referendum provision] places
special burdens on racial minorities within the gov­
ernmental process. * * *” 393 U.S. 385, 391 (Em­
phasis added.)

The obvious purpose of the ordinance was, quite sim­
ply, to place a new legal obstacle in the way of the efforts 
of minority groups to utilize the political process to assure 
them freedom of choice as to where they might live. As the 
Court pointed out, the majority already had that freedom 
of choice, and thus needed “no protection against discrimi­
nation.” And the ordinance created an express racial clas­
sification by explicitly focusing on — and impeding — the 
efforts of minorities to avoid discrimination in housing.

Initiative 350 creates no such express racial classifica­
tion. Again, it prohibits mandatory assignments outside 
the limits of the student’s nearest or next nearest school 
for any reason, unless related to the particular student’s 
particular needs. Further, within the geographical limits of 
the nearest or next nearest school, mandatory assignments 
for any reason are permitted, even for purposes of 
achieving greater racial balance.

The true basis for Hunter, it is also important to note, 
was emphasized in James v. Valtierra, 402 U.S. 137 
(1971), where this Court upheld a California referendum 
amending that state’s constitution to provide that no low- 
rent housing projects could be developed, constructed, or 
acquired until the project was approved by a majority of 
those voting at a community election. In reversing the 
lower court the Court said, at 402 U.S. 140-141:

The court below erred in relying on Hunter to 
invalidate Article XXXIV. Unlike the case before us, 
Hunter rested on the conclusion that Akron’s referen­
dum law denied equal protection by placing “special 
burdens on racial minorities within the governmental 
process.” * * *

Unlike the Akron referendum provision, it 
cannot be said that California’s Article XXXIV rests 
on “distinctions based on race.” * * * The Article
requires referendum approval for any low-rent public 
housing project, not only for projects which will be 
occupied by a racial minority. And the record here



13

would not support any claim that a law seemingly 
neutral on its face is in fact aimed at a racial minority. 
* * * The present case could be affirmed only be
extending Hunter, and this we decline to do. (Cita­
tions omitted)
Like the district court in Valtierra, the lower courts 

in this case have examined a statute which was racially 
neutral on its face and determined that a racial 
classification was necessarily implied. The Court of 
Appeals then presumed that this implied classification was 
constitutionally invalid, and ended the analysis right 
there. No consideration of intent was needed. By extend­
ing Hunter and avoiding the required inquiry into intent, 
the lower court has effected a major shift in equal 
protection analysis.

In Lee v. Nyquist, 318 F.Supp. 710 (W.D.N.Y. 1970), 
a three-judge court applied Hunter in striking down a New 
York statute which provided as follows:

“ Except with the express approval of a board of 
education * * * a majority of the members of such
board having been elected, no student shall be as­
signed or compelled to attend any school on account 
of race * * *

Citing Hunter, the District Court stated at 318 F.Supp. 
719:

“The statute thus creates a clearly racial classification, 
treating educational matters involving racial criteria dif­
ferently from other educational matters * * *”

This Court, of course, affirmed the thee-judge Court’s de­
cision in Lee. 402 U.S. 935 (1971).

Unlike Initiative 350, the statute involved in Lee did 
not represent a legislative decision that all mandatory as­
signments were to be limited unless the needs of the 
particular student required it. Under that statute, every 
student in the district could be required to go anywhere in 
the district, and the concept of the neighborhood school 
could thereby be completely eliminated — for any reason 
whatsoever save race. The purpose of the statute, in short, 
was not to prohibit extra-neighborhood mandatory assign­
ments; rather, its express terms show that its purpose was



14

to prohibit only racial transfers. Racial balance was bad; 
every other reason for mandatory assignments was good.

This critical point is made quite emphatically by the 
District Court’s opinion in Lee.

“Defendants content that the sole purpose of the stat­
ute was to give local boards, directly responsible to 
the people, control over the methods for achieving ra­
cial balance. The statute’s salutary objective, they 
urge, was to assure the community acceptance neces­
sary for the effectuation of local school desegregation. 
To the extent, however, that the statute thus recog­
nizes and accedes to local racial hostility, the exist­
ence of which has created in the past a serious 
obstacle to the elimination of de facto segregation, 
the purpose is clearly an impermissible one. 318
F.Supp. at 719, 720. (Emphasis supplied.)
Observe, in this regard, that the ban on extra-neigh­

borhood mandatory assignments prohibited assignments 
even to the next nearest school. Increased racial balance to 
any extent was the target of the statute. And observe 
further, in this regard, that the ban applied only in 
districts where the majority of the school board was not 
elected, i.e, in those districts in which the “ local racial 
hostility” to increased racial balance could not exercise 
control on the local level.

Unlike Initiative 350 the statute in Lee, in short, did 
not involve any affirmation of an otherwise 
constitutionally permissible public policy. It simply 
embodied a rifle shot prohibition of racial bussing. That is 
the critical difference here, and the reason Initiative 350 
should be upheld.

C. There Are No Burdens Imposed On Minor­
ities By Initiative 350 In Washington School Dis­
tricts.

Though Hunter and Lee are distinguishable, as 
shown, the broad question raised by Hunter nevertheless 
requires further examination. Does the Initiative impose 
“special burdens on racial minorities within the govern­
mental process”?

Initially, it seems manifest that no “ special burden” is



15

imposed on anyone in particular in those 297 Washington 
school districts where few, if any, extra-neighborhood as­
signments are presently being made for any purpose. 
Many of these districts have only one school facility 
serving students at a given grade level. And, in particular, 
it cannot be said that a “special burden” is somehow 
imposed upon minority students in those several Washing­
ton school districts having five or more schools which are 
already racially balanced on a school-by-school basis 
through simple application of Washington’s traditional 
neighborhood school assignment policy, and which have 
minority enrollments in excess of the statewide average.7

Even as to the three school districts which are parties 
to this appeal, however, it is simply impossible to define 
and articulate any “ special burden” imposed on minorities 
in those districts.

1. No Burdens Are Imposed On Minorities In 
The Pasco School District.

Consider, first, the situation in the Pasco School Dis­
trict. Ironically, the effect of Initiative 350 when imple­
mented in Pasco will be entirely salutary because it will 
actually require discontinuance of invidious racial discrim­
ination which has occurred and which continues to occur 
there.

The situation in the Pasco School District is mark­
edly similar to that dealt with by the Sixth Circuit in 
NAACP u. Lansing, 559 F.2d 1042 (6th Cir. 1977), where 
the Court pointed out at 559 F.2d 1052:

“ * * * Of the total black enrollment in Lansing el­
ementary schools, 77% of the students attended 
* * * four schools. The Board of Education’s re­
sponse to the increasing segregation in the elementary 
school system furnishes additional indicia of de jure 

• segregation. * * * The integration effort was ac­
complished by phasing out and closing the predomi­
nantly black schools, * * * and transporting the
pupils to outlying white schools. The District Court

7See, Ex. A-93(g) for school-by-school minority enrollments in the 
following school districts: Prosser, Grandview, Sunnyside, Toppenish, 
Wapato, Moses Lake, Quincy and Clover Park.



16

found that ‘the “one-way busing” program adopted 
by the Lansing Board of Education caused the burden 
of desegregation to fall disproportionately on Blacks. 
It also had the effect of keeping the “ neighborhood 
school policy” a reality for Whites, while making it 
chimerical for Blacks.’ * * * We therefore affirm
the District Court’s finding that the one-way busing 
of black children beginning in 1965 and continuing to 
the present, without a corresponding effort to spread 
the burden of integration more equitably through the 
system, is an act of de jure segregation.”

If anything, though, the situation in the Pasco School 
District is worse than that which the Sixth Circuit found 
deplorable in Lansing. Minority parents in East Pasco ini­
tially refused to volunteer their kindergarten children to 
attend the newly-opened Livingston Elementary School (a 
predominantly White school far removed from the East 
Pasco area) and the District found it necessary to adopt a 
regulation requiring those minority kindergarten children 
to attend that school. (J.A. 30-31). Dr. Childers then 
reinforced the fact that these sentiments still exist when 
he pointed out that if Initiative 350 is allowed to be 
implemented in the Pasco School District, minority stu­
dents in the East Pasco School District area would opt to 
attend those two or three schools which are closest to their 
neighborhood. (J.A. 53).

The terrible irony here, then, is that the Pasco School 
District has historically implemented the central policy of 
Initiative 350 for its white students and their parents, but, 
since 1965, it has denied it to minorities. In light of these 
considerations, the School District’s posture before this 
Court smacks of utter hypocrisy. Implementation of Initia­
tive 350 in Pasco will rescind those policies and practices 
which have, for years, manipulated unwilling minority stu­
dents. Thus, based on the evidence presented at trial, it 
seems absurd to suggest that a “special burden” would be 
imposed on minorities in Pasco by Initiative 350. In fact, 
the initiative will force removal of “ special burdens” al­
ready imposed on minorities in Pasco by the School 
District itself and permit mandatory bussing of majority 
students, to their next-nearest school.



17

2. No Burdens A re Im posed On M inorities In 
The Tacom a School D istrict.

Any suggestion that special burdens will be imposed 
on minorities in the Tacoma School District by Initiative 
350 is also amiss. Initiative 350 will simply have no impact 
whatsoever on that District’s well-established and 
successful voluntary magnet school program.

The Tacoma School District’s magnet school program 
consists, in essence, of special enriched academic opportu 
nities offered to students who enroll at two of its 
elementary schools, Stanley and McCarver. These two 
schools are located in a predominantly minority-populated 
neighborhood. The manifest purpose of the program is to 
attract majority students to those two schools in sufficient 
numbers to achieve a desired level of racial distribution.

Because of the success of its voluntary magnet school 
program, though, the Tacoma School District has been 
forced to maintain a sizable waiting list of students who 
desire to attend one or the other of these two schools. At 
the time of trial, this list included 70 students who resided 
in zones which could be described as “ nearest” or “next 
nearest” to one or the other of the two schools. Since the 
School District has refused to assign such students to 
either Stanley or McCarver (because to do so would upset 
the racial distribution in those two schools), its contention 
in this litigation has been that implementation of Initia­
tive 350 in Tacoma will require it to assign them to one or 
the other of those schools, thereby disrupting the entire 
magnet school program and, ultimately, the entire District 
program for maintaining racial balance in Tacoma’s 
schools.

There is a simple solution to the problem posed by 
the Tacoma School District, however. The solution is to be 

• derived from the provisions of Initiative 350 itself.
The language of § 5 of Initiative 350 specifically 

disavows any legislative intent to interfere with operation 
of programs such as those at Stanley and McCarver 
Elementary Schools, by stating that:

“The prohibitions of this chapter shall not preclude
the establishment of schools offering specialized or



18

enriched educational programs which students may 
voluntarily choose to attend, or of any other volun­
tary option offered to students.”

Beyond this though, there is another, more technical rea­
son why Initiative 350 would not, by its own terms, 
interfere with the District’s program. In its operation of 
the magnet school program, the District has necessarily es­
tablished reasonable enrollment ceilings — using the race 
of the students involved as the criterion — which enable 
those magnet programs to achieve the desired result. The 
District can legitimately respond to objections raised by 
minority students who deem themselves deprived of their 
neighborhood school by pointing out that the nearest and 
next-nearest schools (i.e., Stanley and McCarver 
Elementary Schools) would be rendered overcrowded 
within the meaning of § 1(3) of Initiative 350 if those 
students were assigned to either of those schools.

It should also be emphasized here that Dr. Eugene 
Tone, the sole witness called at trial by the Tacoma School 
District, testified that as many as 95% of the parents of 
school children with whom he comes into contact — 
majority and minority — favor a neighborhood school as­
signment policy (meaning, to them, assignment of public 
school students to the school closest to their place of 
residence). (J.A. 20-21; Tr. 392).

Initiative 350 thus imposes no “special burdens” on 
minorities in Tacoma. By its own terms, Initiative 350 
simply has no impact at all on the Tacoma School 
District’s successful voluntary program to maintain a de­
sired racial balance of students in its public schools.

3. No Burdens Are Imposed On Minorities In 
The Seattle School District.

There is simply no question, of course, that Initiative 
350 will drastically curtail further implementation of the 
Seattle School District’s mandatory bussing program. But 
is even that a “special burden” within the meaning of 
Hunter and Valtierral The answer is no!

In the first place, it is analytically impossible to 
define any “ special burden” imposed by Initiative 350 in



19

the Seattle School District. The so-called Seattle Plan it­
self recites that it is “ * * * equitable for both minority
and non-minority families.” Thus, the program itself has 
equitably distributed its burdens between minority and 
non-minority students and their families. The impact of 
Initiative 350 in Seattle — to the extent that it rescinds 
the mandatory extra-neighborhood assignment portion of 
the Seattle Plan — is thus proportional to those burdens 
“equitably” imposed on both minority and majority stu­
dents and parents in the first place. Logically, then, it is 
impossible to define a “special” burden imposed on minor­
ities by removing those burdens previously imposed by the 
District.

In more practical terms, though, this absence of any 
“special burden” imposed by Initiative 350 on minorities 
in the Seattle School District is graphically illustrated by 
the testimony of the Seattle School District 
Superintendent, Dr. David Moberly, who, like his counter­
parts in the Pasco and Tacoma School Districts, made it 
clear that minorities in the Seattle School District are not 
burdened in any sense by a statute which would require 
Washington school districts to adhere to a neighborhood 
school assignment policy:

“A. * * * we have large numbers of minorities
* * * opposed to desegregation. The Asian com­
munity, as I go out, I had concerns voiced about 
desegregation. I think, publicly, we have seen, 
recently, minorities at our Board meetings opposing 
desegregation * * * I think it is a false assumption
on all of our parts to assume that only the majorities 
are opposed to desegregation. I think the population 
is mixed out there in viewpoints on it.
“Q. When you say that they are opposed to 
desegregation, is that to desegregation as a whole or is 
this to the desegregation efforts, the mandatory 
aspects of desegregation?
“A. I think the mandatory efforts, in other words, 
“busing.” I haven’t found anybody that really loves it. 
“Q. They go along with the idea of desegregation, but 
not forcing them onto a bus?
“A. Not by busing. If you get out in your Asian 
community, your Black community, you will find alot



20

of opposition to it. It’s not a popular thing.” (J.A. 70- 
71).

The vote on Initiative 350 at the 1978 general election 
Certainly bears out Dr. Moberly’s personal experience. In 
the predominantly minority 37th legislative district in Se­
attle (one of only two legislative districts in the state where 
Initiative 350 did not receive the majority of votes), 
roughly 40% of the vote cast was in favor of the measure. 
(Ex. 105; Tr. 774). This vote followed a local opinion 
survey, taken earlier in 1978, which showed that roughly 
two-thirds of Seattle-area minorites opposed suggested 
mandatory bussing in Seattle. (Ex. 137; Tr. 2011).

We are not here suggesting that minorities consider 
an education in a racially imbalanced school to be better 
than, or even as good as, an education in a racially 
balanced school. Rather, we are suggesting that they want 
the freedom to make that decision themselves, on an 
individual family-by-family basis. That is precisely what 
Initiative 350 affords them; and that, we suggest, hardly 
constitutes the imposition of a special burden upon them. 
The evidence we have just described is relevant because it 
simply highlights this point.

To look at the matter from a somewhat different 
perspective: The critical issue in this case is not whether 
the Seattle School Board was light or wrong in believing 
that greater racial balance in a school — however that 
might be defined — “ results” in a “ better” education — 
however that too might be defined. Initiative 350 does not 
attempt to resolve that debate at all. Rather, it leaves the 
debate to be resolved on the family level. If a minority 
student believes that a better education can be obtained 
elsewhere than in his neighborhood school, Initiative 350 
leaves the District free to allow that student to attend that 
other school. Indeed, this is happening very successfully in 
Tacoma. If, on the other hand, the minority student wants 
to stay in his or her neighborhood school, that option too is 
made available. Only the most condescending sort of pa­
ternalism can justify characterizing this as a “special bur­
den.”



21

D. In Investigating Whether Initiative 350  
Somehow Imposes Special Burdens On Minorities 
In The Governmental Process, It Must Be Empha­
sized That Washington’s Constitution Makes It 
The Responsibility Of The State — Not The Local 
School District — To Provide For The Education 
Of School Children.

The question whether Initiative 350 imposes special 
burdens on minorities within the governmental process 
has another aspect which must be examined.

The Ninth Circuit panel majority’s opinion makes re­
peated reference to what it refers to as “ traditional local 
authority” over educational policies (J.S. B-7), and finds 
that the initiative unconstitutionally overturns this au­
thority.

The problem with that portion of the opinion, how­
ever, is that while the traditional national pattern may be 
as there described, that description has little to do with the 
relationship of local and state educational authorities in 
Washington State. Ironically, it was, in major part, the 
same group of plaintiff-appellees who sued many of the 
same defendant-appellants in December, 1975, claiming 
that the state had defaulted in its duty to “ provide for a 
general and uniform system of public schools” pursuant to 
Article IX, § 2, of the Washington Constitution. In turn, 
the Washington Supreme Court agreed with that proposi­
tion. See, Seattle School District No. 1, et al. v. State of 
Washington, et al, 90 Wn.2d 476, 585 P.2d 71 (1978). 

The State Supreme Court there said:
<<* * *
“The findings of fact demonstrate that Seattle School 
District No. 1 (District) must provide an educational 
program that complies with State statutes, 

> regulations of the State Board of Education and the 
Superintendent of Public Instruction. * * *
“ * * * Moreover, the trial court declared that it is
the duty of the Legislature to fully implement Const, 
art. 9 §§ 1 and 2, and to that end it is to: (A) define 
‘basic education’ and determine the substantive 
content of the ‘basic program of education’; and (B) 
provide for the fully sufficient and ample funding of



22

the program by appropriation or through regular and
dependable tax sources.” (90 Wn.2d 476, 485-87).

In view of this decision, it will readily he seen that, in 
Washington, policy decisions regarding the operation of 
the state public school system, including the funding of 
direct costs for school transportation, must he made at 
the state and not the local level.

The simple fact is this. As a result of Seattle School 
District’s successful suit against the State, the legislature 
in 1977 — in response to the trial court decision — took 
into its own hands every basic policy decision regarding 
the operation of the public school (K-12) system in the 
State of Washington, save one! It did not address the 
issues involved in Initiative 350. See, chapter 359, Laws of 
1977, 1st Ex. Sess. (Basic Education Act of 1977) and 
chapter 325, Laws of 1977, 1st Ex. Sess. (Levy Lid Act). 
See, also, §§ 94, 96 and 97, chapter 339, Laws of 1977, 1st 
Ex. Sess. (Budget Act).

The amount of funding each school district will re­
ceive, from the State and from local sources as well, is 
controlled by the legislature. Effectively, the legislature 
controls also the average salary levels of school district 
staff and the staff/student ratios. Further, course offerings, 
in terms of both content and numbers of hours for various 
grade levels, are legislatively mandated. The number of 
hours the teacher must spend in the classroom is set by the 
legislature. The result of Seattle School District’s victory 
was to have the legislature remove from its board — and 
from all other school boards in the State — the last major 
elements of “ local control.” Accordingly when the voters 
adopted Initiative 350 in 1978, they were simply following 
this pattern established in the prior year.

Thus, the Court of Appeals majority’s suggestion that 
Initiative 350 amounted to a “ radical restructuring” of the 
political process in Washington was simply wrong. The 
point deserving emphasis here, of course, is that there can 
really be no serious contention that the Washington gov­
ernmental process has been skewed in a manner which 
imposes special burdens on minorities. The State has 
merely imposed statutory limits on the powers of its local



23

school districts (districts which would not exist but for the 
legislative charter granted them by the state legislature).

E. The Abater Decisions Of This Court In 
Washington v. Davis, Village Of Arlington 
Heights v. Metroplitan Housing Development 
Corp., And Personnel Administrator Of M assa­
chusetts v. Feeney Suggest That The Facial Anal­
ysis Employed In Hunter And Lee Is No Longer 
The Correct Approach To Be Taken.

Having concluded our examination of the analytical 
underpinnings of the decisions in Hunter and Lee, we next 
consider whether the more recent decisions of this Court 
limit the freedom of courts to utilize the analytical 
approach taken in those cases.

It seems beyond question that the courts below, in 
holding as they did, accepted the argument advanced by 
the school districts that Hunter and Lee represent a 
separate line of cases peculiarly applicable to legislative 
enactments dealing with racial matters. In our view, 
though, those decisions, though not overturned, have now 
been refined by several recent decisions of this Court. 
These later cases seem to us to make it quite clear that 
courts are no longer free to presume from the face of a 
given statute — as was done in Hunter and Lee — that an 
illicit segregative purpose motivated its passage. Such seg­
regative purpose must now be separately proven by those 
challenging it. Washington v. Davis, 426 U.S. 229 (1976); 
Village of Arlington Heights, et al. v. Metropolitan Hous­
ing Development Corporation, et al., 429 U.S. 252 (1977); 
Personnel Administrator of Massachusetts v. Feeney, 442 
U.S. 256 (1979). Cf. City of Memphis v. Green, 49 USLW 
4389 (April 20, 1981).

Washington v. Davis, supra, involved a challenge to 
the validity of a written test given to District of Columbia 
police officer candidates. The plaintiffs there showed that 
the test had a profound discriminatory impact, effectively 
excluding a disproportionately high number of Black ap­
plicants. This Court held, however, that this was insuffi-



24

cient to make out a violation of the Fourteenth 
Amendment, saying:

“ * * * our cases have not embraced the proposition
that a law or other official act, without regard to 
whether it reflects a racially discriminatory purpose, 
is unconstitutional solely because it has a racially dis­
proportionate impact. (426 U.S. at 239).
<** *  *

“The school desegregation cases have also adhered to 
the basic equal protection principle that the invidious 
quality of a law claimed to be racially discriminatory 
must ultimately be traced to a racially discriminatory 
purpose. That there are both predominantly black 
and predominantly white schools in a community is 
not alone violative of the Equal Protection Clause. 
The essential element of de jure segregation is ‘a 
current condition of segregation resulting from inten­
tional state action.’ Keyes v. School Dist. No. 1 413 
U.S. 189, 205, 37 L.Ed.2d 548, 93 S.Ct. 2686 (1973). 
‘The differentiating factor between de jure 
segregation and so-called de facto segregation 
* * * is purpose or intent to segregate.’ (426 U.S.
at 240).
“ *  *  *

“ * * * we have not held that a law, neutral on its
face and serving ends otherwise within the power of 
government to pursue, is invalid under the Equal 
Protection Clause simply because it may affect a 
greater proportion of one race than of another. (426 

• U.S. at 242).
“ *  *  *

“A rule that a statute designed to serve neutral ends 
is nevertheless invalid, absent compelling 
justification, if in practice it benefits or burdens one 
race more than another would be far-reaching and 
would raise serious questions about, and perhaps in­
validate, a whole range of * * * statutes that may
be more burdensome to the poor and to the average 
black than to the more affluent white.” (426 U.S. at 
248).
Washington v. Davis, was followed by Village of 

Arlington Heights v. Metropolitan Housing Development 
Corp. supra. The question involved in Arlington Heights 
was whether or not the refusal by a zoning board in a



25

Chicago suburb to allow construction of a low-income 
housing development amounted to discrimination on racial 
grounds. Citing Davis, this Court there reaffirmed that 
proof of discriminatory intent is required to make out a 
showing of invidious discrimination for Fourteenth 
Amendment purposes, saying, in part, at 429 U.S. 264-266:

“ Our decision last Term in Washington v. Davis, 
* * * made it clear that official action will not be
held unconstitutional solely because it results in a ra­
cially disproportionate impact. ‘Disproportionate 
impact is not irrelevant, but it is not the sole 
touchstone of an invidious racial discrimination.’ Id., 
at 242. Proof of racially discriminatory intent or pur­
pose is required to show a violation of the Equal 
Protection Clause. Although some contrary
indications may be drawn from some of our cases, the 
holding in Davis reaffirmed a principle well 
established in a variety of contexts. E.g., Keyes v. 
School Dist. No. 1, Denver Colo., 413 U.S. 189, 208 
(1973) (schools); * * *”
“Davis does not require a plaintiff to prove that the 
challenged action rests solely on racially 
discriminatory purposes. Rarely can it be said that a 
legislature or administrative body operating under a 
broad mandate made a decision motivated solely by a 
single concern, or even that a particular purpose was 
the ‘dominant’ or ‘primary’ one. In fact, it is because 
legislators and administrators are properly concerned 
with balancing numerous competing considerations 
that courts refrain from reviewing the merits of their 
decisions, absent a showing of arbitrariness or irra­
tionality. But racial discrimination is not just another 
competing consideration. When there is a proof that a 
discriminatory purpose has been a motivating factor 
in the decision, their judicial deference is no longer 
justified.
“ Determining whether invidious discriminatory 

* purpose was a motivating factor demands a sensitive 
inquiry into such circumstantial and direct evidence 
of intent as may be available. * * *” 429 U.S. at
264-266. (Citations omitted)
Neither Arlington Heights nor Washington v. Davis, 

however, dealt with a statute. Thus, it remained arguable, 
even after these decisions, that Hunter and Lee stated the



26

controlling rule of law in challenges to purely legislative 
enactments which effectively created some sort of classifi­
cation detrimentally affecting an identified homogeneous 
group. The validity of such an argument, however, was 
quickly dispelled hy this Court’s decision in Personnel Ad­
ministrator of Massachusetts v. Feeney.

In Feeney a female state employee had passed a 
number of open competitive civil service examinations for 
better jobs but, because of a veterans preference statute, 
wound up ranked below male veterans who had achieved 
lower test scores. The statutory preference — available on 
its face to “any person, male or female, including a nurse” 
who was honorably discharged from the United States 
Armed Forces — clearly operated overwhelmingly to the 
advantage of males. The female employee challenged the 
statute, claiming that the preference formula violated the 
Fourteenth Amendment. A three-judge court initially de­
clared the statute unconstitutional, stating that the prefer­
ence statute’s discriminatory impact upon women was so 
severe that it simply had to be struck down. Anthony v. 
Commonwealth of Massachusetts, 415 F.Supp. 485 (1976). 
On appeal, this Court vacated the judgment and remanded 
the case for further consideration in light of Washington v. 
Davis. Massachusetts v. Feeney, 434 U.S. 884 (1977). On 
remand, the District Court reaffirmed its original 
judgment on the basis that the consequences of the 
preference formula for the employment opportunities of 
women were simply too inevitable to have been “unintend­
ed.” Feeney v. Commonwealth of Massachusetts, 451
F.Supp. 143 (1978). This Court again reversed, saying:

The cases of Washington v. Davis, supra, and Village 
of Arlington Heights v. Metropolitan Housing Devel­
opment Corp., supra, recognize that when a neutral 
law has a disparate impact upon a group that has 
historically been the victim of discrimination, an un­
constitutional purpose may still he at work. But those 
cases signalled no departure from the settled rule that 
the Fourteenth Amendment guarantees equal laws, 
not equal results. * * * Those principles apply
with equal force to a case involving alleged gender 
discrimination. (442 U.S. 273, 274).

* * *



27

“The dispositive question, then, is whether the 
appellee has shown that a gender-based 
discriminatory purpose has, at least in some measure, 
shaped the Massachusetts veterans’ preference 
legislation. * * * (442 U.S. 276).
“ ‘Discriminatory purpose,’ however, implies more 
than intent as volition or intent as awareness of 
consequences. * * * It implies that the
decisionmaker, in this case a state legislature, 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. * * *” (442 U.S.
279).

It should be emphasized here that the statute involved in 
Feeney, like Initiative 350, contained no explicit discrimi­
natory classification in its text. In order to determine the 
presence of a discriminatory impact it was necessary there, 
as it is here, to resort to a factual analyis of the entire 
historical context in which the statute was adopted. 
Feeney, then, seems to make it clear that Initiative 350 is 
not subject to the sort of facial analysis employed by the 
three-judge court in Lee v. Nyquist, in particular.

In nevertheless resorting solely to that same analysis, 
the Ninth Circuit, in particular, has erred. As Feeney 
makes clear, a law such as Initiative 350 should be held un­
constitutional only if it has been shown by those 
challenging it that the Washington electorate adopted it, 
at least in part, because of (rather than in spite of) a 
collective deliberate purpose to cause a racially discrimi­
natory impact. In other words, it must first be shown that 
the Washington voters would not have selected or reaf­
firmed a modified neighborhood schools policy “but for” 
that policy’s adverse effects upon identifiable minority 
groups.

II. THE DISTRICT COURTS FINDING THAT INI­
TIATIVE 350 WAS ENACTED, IN PART, 
BECAUSE OF AN INTENT TO DISCRIMINATE 
ON RACIAL GROUNDS WAS WRONGLY 
PREMISED ON AN IPSO FACTO RATIONALE 
AND ITS CATEGORICAL DECLINATION EVEN



28

TO CONSIDER OFFERED EVIDENCE OF 
BENIGN SUBJECTIVE INTENT ON THE PART 
OF THE WASHINGTON ELECTORATE 
EFFECTIVELY THWARTED THE STATE DE­
FENDANT’S FACTUAL DEFENSE

As already noted, the Ninth Circuit based its affirm­
ance of the District Court in this case solely on its own 
view that Initiative 350 created the same sort of racial 
classification which was found to be constitutionally objec­
tionable in Hunter and Lee. It thus refused to inquire into 
the question of whether passage of Initiative 350 was the 
result of an intent or purpose to discriminate on racial 
grounds, the test most recently articulated by this Court.

On the other hand, the District Court did find that a 
purpose to discriminate on racial grounds was “a motivat­
ing factor” in the adoption of Initiative 350. Its approach 
to doing so, however, was simply not in keeping with that 
approach dictated by Washington v. Davis and its prog­
eny.

In pertinent part, the District Court’s memorandum 
opinion reads as follows:

“ As a second ground for holding Initiative 350 to be 
unconstitutional, I find that a racially discriminatory 
purpose was one of the factors which motivated the 
conception and adoption of the initiative.
i t  *  *  *

“ It is, of course, impossible to ascertain the subjective 
intent of those who enacted Initiative 350. It was a 
measure adopted by the electorate at the ballot box. 
Unlike the normal legislative enactment there were 
no committee hearings or floor debates to cast light 
upon the intent of the enactors.
“ I believe that I can safely assume that a great many 
voters were motivated solely by a conviction that it 
was in the best interests of all children that they be 
permitted to attend their neighborhood schools; that 
there were many voters who were motivated solely by 
a desire to maintain as much racial separation as 
possible in the public schools; and that in between 
there were many voters who voted with varying de­
grees of mixed motives.
“ In deciding whether a racially discriminatory intent



29

or purpose lay behind the adoption of Initiative 350,1 
cannot base my judgment upon what I believe I may 
‘safely assume’ as to the subjective intent of the 
voters. As to that subjective intent the secret ballot 
raises an impenetrable barrier.” (J.S. A-30,31).

In spite of this, the District Court then went on to find 
that a racially discriminatory purpose was a factor in the 
adoption of Initiative 350, relying almost solely on virtu­
ally uncontroverted evidence that most of the state’s vo­
ters were aware that Initiative 350 was drafted in response 
to the Seattle Plan and that, if adopted, it would have the 
effect of curtailing its implementation.

The basic fallacy in this rationale is self-evident: mere 
opposition to mandatory bussing as a means to achieve 
racial balance is simply not the equivalent of the requisite 
intent to discriminate on racial grounds, both as a matter 
of law and as a matter of common sense. This latter 
proposition is borne out, in particular, by this Court’s 
decision in Dayton Board of Education u. Brinkman, 433 
U.S. 406 (1977). Dayton makes it clear that, absent a 
showing that a constitutional duty to remedy de jure 
segregation exists in the first place, even purposeful rescis­
sion of official action already taken to remedy racial 
imbalance in public schools does not amount to proof of 
intent to discriminate on racial grounds.

In Dayton this Court held that rescission by a later- 
reconstituted Dayton, Ohio School Board of a prior resolu­
tion of its predecessor board which had acknowledged a 
constitutional duty on the part of the school district to 
undo prior official segregative acts did not constitute evi­
dence of present discriminatory intent, saying at 433 U.S. 
414-15:

“ * * * The District Court’s conclusion that the
Board’s rescission of previously adopted School 
Board resolutions was itself a constitutional violation 
is also of questionable validity.
“ * * * We agree with the Court of Appeals treat­
ment of this action, wherein that court said:
“The question of whether a rescission of previous 
Board action is in and of itself a violation of 
appellants’ constitutional rights is inextricably bound



30

up with the question of whether the Board was under 
a constitutional duty to take the action which it 
initially took. Cf., Hunter u. Erickson, 393 U.S. 385
* * * (1969); Gomillion v. Lightfoot, 364 U.S. 339
* * * (1960). If the Board was not under such a
duty, then the rescission of the initial action in and of 
itself cannot be a constitutional violation. 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.
* * *>>

Thus, in Dayton this Court seems to have affirmed the 
basic principle that mere opposition to mandatory racial 
balancing measures (absent a de jure segregation 
situation), even when coupled with official action 
retreating from such measures, simply does not equate 
with official discriminatory purpose in violation of the 
Fourteenth Amendment. Cf., Higgins u. Board of 
Education of Grand Rapids, 508 F.2d 779 (6th Cir. 1974); 
Gornperts v. Chase, 329 F.Supp. 1192 (N.D.Cal. 1971).

The same principle is to be derived from Austin 
Independent School Dist. u. United States, 429 U.S. 990 
(1976), a per curiam decision of this Court which vacated 
and remanded a decision of the Fifth Circuit in which that 
Court had held that the evidence before it showed 
intentional discrimination against Mexican-Ameriean 
school children in Austin, Texas. On remand, the Court of 
Appeals, in United States v. Texas Education Agency, 
564 F.2d 162 (5t h Cir., 1977), interpreted the per curiam 
decision of this Court as follows, at 564 F.2d 169:

“There is language in our [earlier] * * * opinion
that an official discriminatory intent adequate to sup­
port a f inding of de jure segregation could be inferred 
solely from the school board’s use of a neighborhood 
school policy for student assignment. To the extent 
[our earlier decision) * * * can be so read, it is
inconsistent with Washington u. Davis and Arlington 
Heights. The Supreme Court recognized this 
ambiguity in vacating our decision and remanding the 
case to us.
The District Court’s equating of the Washington elec-



31

torate’s adherence to the state’s traditional neighborhood 
schools assignment policy — even in outright opposition to 
programs such as that operated by the Seattle School 
District — with a purpose to discriminate on racial 
grounds is illogical and simply wrong.

The electorate, in consciously adhering to the tradi­
tional policy, was obviously motivated by the same intent 
as was the Austin school board. The Fifth Circuit’s 
interpretation of this Court’s remand in Austin squares 
with the rest of the numerous federal decisions on point. 
Until the decisions Jbelow were reached, no federal court 
had ever held that a simple decision to adhere to (or return 
to) a pre-existing racially-neutral neighborhood schools as­
signment policy — even in the teeth of counterpressure to 
undertake racial balancing measures — amounted to 
official discrimination on racial grounds. Deal u. 
Cincinnati Board of Education, 369 F.2d 55 (6th Cir. 
1966), cert. den. 389 U.S. 847 (1967); Higgins v. Board of 
Education of Grand Rapids, 508 F.2d 779 (6th Cir. 1974); 
Diaz v. San Jose Unified School District, 612 F.2d 411 
(9th Cir. 1979). These decisions, of course, square with the 
pronouncements of this Court. Swann v. Charlotte-Meck­
lenburg Board of Education, 402 U.S. 1 (1971); Keyes v. 
School District No. 1, 413 U.S. 189 (1973).

The District Court’s concomitant flat refusal — on a 
categorical basis — to consider the Defendants’ evidence 
of benign intent on the part of the voting public was 
extremely prejudicial, it is this very evidence which rein­
forces the principle of Dayton — that opposition to the 
concept of race-conscious mandatory bussing is not the 
equivalent of an attempt to discriminate on racial grounds.

The District Court simply declined to delve into the 
subjective intent of the Washington voters on the state 
basis that “ * * * the secret ballot raises an impenetra­
ble barrier.” (J.S. A-31). However, that sort of categorical 
refusal does not square at all with the direction given by 
this Court in Dayton Board of Education v. Brinkman, 
supra where the knotty problem of determining intent was 
dealt with as' follows, at 433 U.S. 414:

“ We realize, of course, that the task of fact finding in



32

a case such as this is a good deal more difficult than is 
typically the case in a more orthodox lawsuit. Find­
ings as to the motivations of multi-membered public 
bodies are of necessity difficult, cf. Arlington Heights 
v. Metropolitan Housing Development Corp.,
* * * yy

The gravity of the District Court’s incorrect approach 
becomes readily apparent upon review of the evidence 
which it deemed itself impenetrably barred from consider­
ing.

Received into evidence, but categorically excluded 
from consideration, were several public opinion polls evi­
dencing a racially-benign subjective intent on the part of 
the Washington voters. One, a nationwide survey of racial 
attitudes, conducted by Louis Harris & Associates, demon­
strated a genuine lack of segregative intent by members of 
the American white majority — an attitude particularly 
strong in the American West — coupled with equally 
sincere opposition to mandatory assignment of public 
school students to achieve racial balance. (Ex. A-133 at pp. 
13-14, 42-43; Tr. 1346). The same poll showed that, on a 
nationwide basis, a plurality of black Americans oppose 
mandatory bussing as a desegregation remedy, a view 
which finds local reinforcement in one Washington opinion 
survey showing that Seattle area minorities expressed op- 
postion to suggested mandatory bussing in Seattle (Ex. A- 
127; Tr. 883, 886-888).

Published results of this latter poll, which appeared 
in the State’s most widely-read newspaper (The Seattle 
Times), informed the electorate in early 1978, that roughly 
two-thirds of Seattle area minority parents opposed the 
imposition of a mandatory assignment plan for the pur­
pose of alleviating racial imbalance in Seattle schools. On 
the other hand, the Seattle School District’s own studies 
indicated that 71.2% of Seattle residents polled expressed 
an outright preference for living in a multi-racial neigh­
borhood. (Ex. A-91; Tr. 1278).

In September of 1977, the Seattle School District Su­
perintendent, in an open letter to parents of students in 
the District, described the District’s voluntary magnet



33

school program as a “substantial success” which was “ex­
tremely encouraging.” (Ex. A-59; Tr. 1019). Such a com­
munication would logically incline any reader (i.e., the av­
erage Seattle voter at the 1978 general election) to believe 
that a forced bussing program was therefore not required 
to alleviate any perceived racial imbalance, in Seattle 
schools.

There is other evidence in this record which also 
reflects that the Washington voters were not motivated by 
an intent to curb forced bussing solely for racial reasons. 
News articles carried in both major daily newspapers in 
the city of Spokane just prior to the 1978 general election 
contained reports of strong and vocal parental opposition 
to “bussing” in that Eastern Washington area which was 
entirely unrelated to race, i.e., bussing to achieve desired 
levels of classroom balance. (Ex. A-130; Tr. 937). And on 
the west side of the State, less than a month before the 
election, the Bremerton Sun carried a report that the 
Central Kitsap School Board president favored passage of 
Initiative 350 in light of unnecessary bussing (again, for 
reasons unrelated to race) which had been undertaken in 
that District. (Ex. 117, p. 12; Tr. 574)

Advertising and public relations professionals called 
as witnesses by both appellants and appellees gave unre­
butted substantive testimony that a statewide campaign in 
favor of a ballot proposition would actually lose support in 
the state of Washington if it was designed to appeal to 
segregative and racist attitudes. (Tr. pp. 496-498, 505-506, 
509-511, 538,.Ex. 2 Tr. 23).

The voting pattern on Initiative 350 is itself instruc­
tive. The initiative received a favorable vote in several 
school districts having minority populations in excess of 
the statewide average, where the school were already ra­
cially balanced due to residential patterns and neighbor­
hood school assignment policies within those districts. (Ex. 
A-93; Ex. A-105; Tr. 774). A vote for Initiative 350 in those 
school districts was, then, a vote for maintenance of the 
racially balanced school system which already existed. To 
suggest that a vote in favor of the initiative in those 
districts was somehow motivated by an intent or purpose



34

to discriminate locally on racial grounds is utterly illogical.
It was the District’s own witnesses, however, who pre­

sented the best evidence of benign subjective intent on the 
part of the electorate. They acknowledge repeatedly that a 
vast majority of parents — minority and majority — in all 
three school districts involved expressed, in one way or 
another, a preference for retention of the time-honored 
neighborhood school assignment policy. Seattle School 
Board member Bleakney testified, for example, that 
during the many public hearings dealing with the subject 
of racial imbalance in Seattle schools, the school board 
heard again and again that the parents wanted neighbor­
hoods preserved. (Tr. 58, pp. 145-147). Dr. Tone of the 
Tacoma School District testified, as earlier noted, that as 
many as 95 percent of all parents — minority and majority 
— with whom he had been in contact expressed a 
preference for neighborhood schools (meaning, to them, 
the school “ nearest” to their home). (J.A., pp. 20, 21). (Tr. 
pp. 391). And, again, Dr. Childers of the Pasco School 
District made it abundantly clear that attempts to lure 
East Pasco (i.e., minority) residents to distant schools in 
the District were largely unsuccessful (thereby 
engendering school district regulations which now require 
minority kindergarteners to attend the most distant 
schools). (J.A., pp. 30, 31). (Tr. pp. 601-02). Dr. Childers 
also testified that if Initiative 350 is implemented in 
Pasco, East Pasco (i.e., minority) residents would choose 
to have their children attend those two or three schools 
which are nearest and next-nearest (more or less) to the 
East Pasco area. (J.A., pp. 31, 53). (Tr. pp. 605, 634-38). In 
the Tacoma School District, notwithstanding an open, 
city-wide enrollment policy, at the time of trial only 1,200 
students out of roughly 29,000 opted to attend non-neigh­
borhood schools. (Ex. 99). (J.A., pp. 214).

The District Court simply ignored all of this admitted 
evidence — that hearing on the collective subjective intent 
of the electorate — and made no findings of fact 
whatsoever based on that evidence.

It must be remembered that, under Washington u. 
Davis, supra, and the cases which followed it, the districts



35

were burdened initially with proving that an intent to 
discriminate on racial grounds was a motivating factor in 
the adoption of Initiative 350. Following the refusal of the 
District Court to dismiss the District’s complaint for fail­
ure to prove a prima facie case, the State defendants were, 
at the very least, entitled to have their best evidence — 
that showing that the collective motivation of the voting 
public was not as characterized by the Districts — weighed 
by the District Court and dealt with directly in its 
findings, conclusions and judgment.

III. INITIATIVE 350 REFLECTS A NATIONAL 
POLICY IN FAVOR OF NEIGHBORHOOD 
SCHOOL ASSIGNMENT MADE APPLICABLE BY 
CONGRESS TO DEPARTMENTS OF THE 
FEDERAL GOVERNMENT
In the preceding sections of this brief, we have 

emphasized two major points: (1) That Initiative 350 does 
not create a 1 racial classification of the sort found 
constitutionally deficient in Hunter and Lee and; (2) that 
proof of discriminatory intent or purpose must be present 
before such state law may be struck down as violative of 
the Fourteenth Amendment. Generally in regard to either 
or both of these two points, there is an additional factor 
which certainly must also be taken into account. Through­
out the entire course of this litigation the state defendants 
have repeatedly pointed out that Initiative 350 is nothing 
more than a state-level legislative parallel to an earlier 
1974 act of Congress establishing a national neighborhood 
schools policy. Indeed, the evidence introduced at trial 
demonstrated conclusively that Initiative 350 was 
deliberately patterned quite closely after those same pro­
visions of federal law — the Equal Education Opportuni­
ties Act of 1974 (now codified as 20 U.S.C. § 1701, et seq.). 
The relevant provisions of that Act (which are printed of 
J.S. F-5) read as follows:

“ 1701. C ongressional declarations o f  policy
“ (a) The Congress declares it to be the policy of the 
United States that —



36

“ (1) all children enrolled in public schools are 
entitled to equal educational opportunity without 
regard to race, color, sex, or national origin; and 
“ (2) the neighborhood is the appropriate basis for de­
termining public school assignments.”

Congress then reinforced this substantive expression of 
policy in the Act by expressly limiting the geographical 
extent of any federally-ordered bussing of public school 
children to precisely the same geographical extent as that 
expressed in Initiative 350, saying in § 1714: * * *

“ (a) No court, department, or agency of the United 
States shall, pursuant to section 1713 of this title, 
order the implementation of a plan that would re­
quire 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.”

Although the foregoing statute has been subject to scru­
tiny on several occasions, it has remained intact as an 
expression of congressional policy in favor of a nationwide 
neighborhood school policy. See e.g., Morales v. Shannon, 
516 F.2d 411 (1975), cert, den., sub. nom Shannon v. 
Morales, 423 U.S. 1034 (1975); Brinkman u. Gilligan, 518 
F.2d 853 (6th Cir., 1975), cert, den., sub. nom Dayton Bd. 
of Education v. Brinkman, 423 U.S. 1000 (1975).

The striking conclusion drawn from juxtaposition of 
Initiative 350 with the provisions of 20 U.S.C. § 1701, et 
seq., is that, if Initiative 350 did create a racial 
classification, it was no different than that created by 
Congress. And likewise, if passage of Initiative 350 was 
motivated by a purpose to discriminate on racial grounds, 
then that purpose is no different from that which 
motivated Congress as well. Such comparisons are, by no 
means, an idle intellectual exercise. If Congress is empow­
ered to enact legislation of this type without violating the 
Due Process Clause of the Fifth Amendment to the United 
States Constitution, then it cannot be said that the State 
of Washington somehow violates the Equal Protection 
Clause of the Fourteenth Amendment by seeking to 
achieve the same ultimate goal using the same essential



37

legislative formula. Bolling u. Sharp, 347 U.S. 497 (1954); 
Hills v. Gautreaux, 425 U.S. 284 (1976).

Indeed, in the recent case of Brown v. Califano, 627 
F.2d 1221 (D.C. Cir., 1980), the District of Columbia 
Circuit Court of Appeals reviewed the Congressional ap­
proach in the context of a challenge to certain 
Congressional appropriation bills preventing the 
Department of Health, Education and Welfare from with­
holding federal funds from school districts which subscribe 
to a neighborhood school assignment policy. In upholding 
the legislation, the Court of Appeals dealt with and 
rejected suggestions that the acts were unconstitutional 
based upon both of the points which we have emphasized 
in this brief — namely, (1) that the legislation created an 
illicit racial classification and, that (2) the underlying mo­
tivation for passage of the federal law was a purpose to dis­
criminate on racial grounds.

The treatment of Initiative 350 by the courts below, 
then, is manifestly inconsistent with the treatment which 
has, to date, been accorded the provisions of the Equal 
Educational Opportunities Act of 1974 (20 U.S.C. § 1701, 
et seq.) by the federal courts. This inconsistency should 
not be continued. Washington’s expression of a neighbor­
hood schools policy should be upheld just as Congress’s 
national policy has been.

IV. INITIATIVE 350 DOES NOT IMPOSE AN EXTRA 
AND UNCONSTITUTIONAL BURDEN ON 
SCHOOL DISTRICTS CONFRONTED WITH A 
DUTY TO CURE DE JURE SEGREGATION
A. The Initiative Does Not Prohibit 

Assignment Of Students To Remedy De Jure Seg­
regation.

We again point out that, while the Ninth Circuit 
Court of Appeals limited its basis for decision (i.e., to the 
existence of a racial classification in contravention ot 
Hunter and Lee), the District Court also lound Initiative 
350 to be constitutionally deficient on yet another stated 
ground. The third and final basis for the District Court’s



38

decision was stated as follows in its memorandum opinion:
“ I find that Initiative 350 is overly inclusive in that it 
prohibits school assignments to achieve racial balance 
even in a school district where there is de jure 
segregation, that is, segregation caused by prior gov­
ernmental action.” (J.S. A-35).

In so finding, tbe district court ignored entirely the 
interpretation of the initiative by the State, particularly 
(and most importantly) by the state officer charged in the 
first instance with its construction, the State Attorney 
General. That construction was stated clearly in the Trial 
Brief of State Defendants (CR 228) as follows:

“ Initiative 350, on its face, recognizes that constitu­
tional imperatives may override its applicability in 
some situations.
“Section Six of Initiative 350 provides:
“This chapter shall not prevent any court of compe­
tent jurisdiction from adjudicating constitutional 
issues relating to the public schools.
“The same sort of express disclaimer of infringement 
on the power of the courts has been held to validate 
the provisions of the Equal Educational
Opportunities Act of 1974, 20 U.S. Code § 1701, et 
seq., supra, by allowing the federal courts to deal with 
constitutional violations which have caused 
segregation within a given school system. Evans v. 
Buchanan, 416 F.Supp. 328 (1976); * * *
“Thus, where a given Washington school district finds 
itself under a constitutional duty to override 
Initiative 350, it may certainly do so. The Initiative 
clearly contemplates in Section Six that its action will 
be upheld by any court of competent jurisdiction, as­
suming that such constitutional duty is found to exist. 
Until a given school district reaches that point, how­
ever, it must, as a municipal corporate creature of the 
State of Washington, attempt to achieve its goals 
within the limitations imposed by its own creator. 
Since the initiative expressly subordinates its central 
policy to constitutional imperatives, how can it con­
ceivably be claimed to be unconstitutional on its face? <<* * * >>

The appellants — charged by the Complaint with enforce­
ment of Initiative 350 — have insisted from the outset



39

upon a construction of the statute which recognizes and 
provides for the constitutional necessity to undertake 
mandatory desegregation steps in certain instances 
without first having to seek an authorizing court order of 
some sort.8

The District Court should never have dealt with this 
issue, and, having dealt with it at all, it clearly erred in 
finding the act “ overly inclusive.” Initiative 350, by its very 
terms, operates directly upon Washington school districts. 
All Washington school districts receive legal advice and 
counsel from the prosecuting attorneys in those counties in 
which the districts are located. RCW 36.27.020(2) and (3). 
Those prosecuting attorneys, in turn, are statutorily 
guided by the formal opinions of the state Attorney 
General. RCW 36.27.020(3); RCW 43.10.030. The con­
struction of the act by the Attorney General is binding on 
the State, absent a contrary judicial determination. Fur­
thermore, any state official acting pursuant to the advice 
of the Attorney General is protected from liability and will 
not be found to have violated his or her official oath, even 
though such action is later held to be invalid. State ex rel. 
Day v. Martin, 64 Wn.2d 511, 392 P.2d 435 (1964). The 
Attorney General is an appellant in this case. In light of all 
this, it becomes apparent that the appellee school districts 
raised a false issue to the District Court. The school 
districts commenced this action claiming that it was the 
appellants who were going to enforce Initiative 350 in a 
manner which would prevent them (i.e., the Districts) 
from performing their constitutional duties. In response, 
the appellants flatly asserted that this was not true and 
that they, in turn, would not and did not so interpret the 
statute. To complete the anomaly, the school districts 
thereupon insisted that, notwithstanding the less 
.restrictive interpretation placed upon the initiative by ap­
pellants, the District Court was somehow dutybound to 
adopt their interpretation of Initiative 350 (one which en­
hanced the likelihood that the initiative could be charac­
terized as unconstitutional). In falling into this trap the

“Such a construction is well supported by legislative history. Tr. 
1171, 1180, 1181.



40

District Court ignored the all too familiar rule (pointed out 
to it in the State’s trial brief) that legislation will be 
interpreted, if at all possible, in a manner which will 
render it constitutional and that “ the dangers of an 
approach to statutory construction which confines itself to 
the hare words of a statute” are to be avoided. Lynch v. 
Overholser, 369 U.S. 705 (1962).

The Court’s “ task is not to destroy the Act,” but to 
construe it, if consistent with the will of the state, “ so as to 
comport with constitutional limitations.” U.S. Civil 
Service Commission v. National Letter Carriers 
Association, 413 U.S. 548, 571 (1973). Where, as here, the 
defendants are the “very state authorities entrusted with 
the definitive interpretation of the language” of tha act 
including the State Attorney General,/this Court should 
not “ ignore these authoritative pronouncements in deter­
mining the breadth of a statute.” Rather, it should accept 
that interpretation, “however we might construe that lan­
guage were it left for us to do so.” Law Students Research 
Council v. Wadmond, 401 U.S. 154, 162 (1971); Broderick 
v. Oklahoma, 413 U.S. 601, 617-618 (1973).

B. A Requirement Of Prior Judicial Determi­
nation Would Not Render The Act Unconstitution­
al.

Even if the appellee’s interpretation of Initiative 350 
is correct, however, the requirement that a triggering court 
order be obtained in order to implement forced bussing in 
any Washington school district would not, of itself, render 
the act constitutionally invalid. Such a requirement is, in 
reality, fully consistent with the thrust of numerous deci­
sions of this Court. A brief review of the history of school 
desegregation law emphasizes this point.

At the time of this Court’s decision in Brown v. Board 
of Education, 347 U.S. 483 (1954), the test for determining 
the existence of de jure segregation was really quite 
rudimentary. If a state, by law, provided for separate 
school facilities for children of differing races, then a 
finding of de jure segregation was quite simple to make. 
The later expansion of the defintion of de jure segregation,



41

however, has made it increasingly difficult to determine 
whether a given state (or local school district) has 
committed acts which amount to the creation of a dual 
school system. See, e.g., Keyes v. School Dist. No. 1, 413 
U.S. 189 (1973). And, quite apart from determining wheth­
er or not segregation in any given school district was the 
result of purposeful official action, this Court has also 
grappled with the difficult proposition of determining 
when minority school children of one race are somehow 
isolated from the majority in sufficient numbers to trigger 
further inquiry into whether a remedy is required. Span­
gler o. Pasadena Board of Education, 427 U.S. 424 (1976).

In spite of the difficulty which this Court and the 
lower federal courts have had in coming to grips with such 
elusive concepts, it has been the consistent position of the 
appellee school districts in this litigation that, notwith­
standing the fact that their essential purpose is to provide 
education, it is somehow their exclusive province to de­
clare whether and to what extent de jure segregation exists 
within Washington’s public schools, and, further, to 
declare the appropriate remedy therefore. In essence the 
districts argue that to limit the exercise of this 
“declaratory” power to the courts, would itself somehow 
violate the federal Constitution. Justice Powell in his opin­
ion in University of California Regents v. Bakke, 438 U.S. 
265 (1978) disposes of that notion, where, in discussing the 
inappropriateness of this same role which was assumed by 
the University of California in determining the need for a 
remedial program to alleviate perceived racial injustice, he 
says:9

Mustice Powell’s wisdom is amply supported here by a recent re­
port prepared by the Seattle School District itself. In “The Effect of the 
Seattle Plan For School Desegregation on Achievement Test Scores,” 
published in August 1981, the District says: “The purpose of the Seattle 
Plan was to reduce racial imbalance in the schools. Achievement of the 
goal has demonstrated the Plan’s success. Any effect of the Plan on 
achievement test scores is irrelevant to evaluation of the Seattle Plan 
itself.” The effect of Initiative 350, of course, even if the appellee’s and 
District Court’s interpretation is correct, is to tell school administrators 
to limit themselves to their “broad mission,” education, where achieve­
ment test scores are indeed relevant, and to leave the formulation of



42

“ We have never approved a classification that aids 
persons perceived as members of relatively victimized 
groups at the expense of other innocent individuals in 
the absence of judicial, legislative or administrative 
findings of constitutional or statutory violations. 
* * * (438 U.S. at 307).
“ * * * Without such findings of constitutional or
statutory violations, it cannot be said that the govern­
ment has any greater interest in helping one individ­
ual than in refraining from harming another. Thus, 
the government has no compelling jurisdiction for in­
flicting such harm.
“ Petitioner did not purport to have made and is in no 
position to make such findings. Its broad mission is 
education, not the formulation of any legislative pol­
icy or the adjudication of particular claims of ille­
gality. * * * (Emphasis supplied.) (438 U.S. at 308,
309.)

To place the Washington school districts in the same 
position as this Court found the University of California to 
he in simply does not violate any provision of the U.S. 
Constitution.

The inappropriateness of the appellee’s position on 
this so-called “overbreadth” issue is further highlighted by 
the variant definitions of “ segregation,” “ racial 
imbalance,” and “ racial isolation” utilized by the three 
school districts which are parties to this appeal. As was 
noted above,- the Seattle School District defines “ racial im­
balance” as:

“ * * * the situation that exists when the combined
minority student enrollment in a school exceeds the 
district-wide combined minority average by twenty 
percentage points, provided that the single minority 
enrollment * * * of no school will exceed fifty per­
cent of the student body.” (J.A. 50).

It takes no great exercise of the mind to imagine the 
absurd results which would obtain if the Seattle School 
District’s definition of “ racial imbalance” was to be 
equated, as a matter of law, with “segregation.” Indeed 
this same level of racial distribution has been determined
social policy to the legislature, and the adjudication of constitutional 
duties to the courts, when necessary.



43

to constitute “ racial isolation” by the State Board of 
Education (J.A. 66) in a definition which has been 
adopted, by reference, by the Tacoma School District (J.A. 
66). On the other hand, the Pasco School District has 
simply declared that a “segregated” school in its district is 
any school in which minority enrollment exceeds fifty per­
cent of the student body, although its principal school 
officials readily concede that minority children are not 
“ isolated” from majority students by virtue of such a 
numerical distribution of students. (Childers’ testimony, 
J.A. 39-42).

In light of all these considerations, then, a require­
ment that any extra-neighborhood bussing for the purpose 
of achieving a desired level of distribution in Washington 
public schools must follow some sort of triggering court 
order is by no means an unreasonable or unconstitutional 
legislative judgment. In view of the historical judicial de­
velopment of school desegregation law, it is not unusual or 
unsound that a court — and only a court — should make 
the initial determination that a condition of segregation 
exists in a given school district which must be cured by 
means of bussing.

Thus, the suggestion that Initiative Measure No. 350 
is somehow “overly inclusive” because, in the view of its 
challengers, it does not contemplate that Washington 
school districts will be allowed to make binding legal 
judgments as to when de jure segregation does or does not 
exist is simply not an unconstitutional infirmity.

V. THE NINTH CIRCUIT PANEL ERRED IN RE­
VERSING THE DISTRICT .COURT’S DENIAL OF 
ATTORNEYS’ FEES TO THE SCHOOL DIS­
TRICTS

Following entry of its Findings of Fact, 
Conclusions of Law and memorandum Opinion, the 
District Court then considered several petitions lor 
awards of attorneys’ fees by the districts and the 
intervenors. In denying these requests, the District 
Court’s Order recited, in pertinent part, as follows:



f

“4. * * * this action was commenced not by private
persons whose own civil rights had been violated but 
rather by three public bodies, the school districts of 
Seattle, Tacoma and Pasco. The financial concerns of 
these public bodies are hardly analogous to those of 
impecunious parents of school children whose civil 
rights may have been violated. Although the school 
districts do not have unlimited funds, they do, at 
least, have available to them public funds with which 
to prosecute litigation. The plaintiffs are to a very 
large extent financed by appropriations from the 
state. In part those appropriations are to defray ad­
ministrative costs, including the legal expenses, of the 
plaintiff school districts. (J.S. C-2).

On appeal, the Court of Appeals concluded that the trial 
court had abused its discretion in refusing to award 
attorneys’ fees to the school districts. In fact, the panel 
majority actually substituted its discretion for that of the 
District Court and concluded that it was unreasonable not 
to award fees to a school district created, controlled, and 
funded by the defendant. (J.S. B 15, 16).

A. The Court Of Appeals Judgment On Attor­
neys’ Fees Itself Constitutes An Abuse Of Discre­
tion.

The trial court recognized that this litigation had al­
ready been, and continues to be, largely funded by money 
appropriated for the school districts by the defendant 
state for purposes which include the conduct of this 
litigation. The Court of Appeals, however, concluded that 
refusing to require the state to reimburse school districts 
for their expenditure of State funds, enabling them to sue 
the state, was an abuse of discretion!

The Court thus adopted a rule which requires that 
the source of litigation funding be entirely ignored, and 
which encourages, as a matter of national policy, “ double 
dipping” from public treasuries. In so holding the panel 
majority cavalierly gave the back of its hand to the District 
Court’s findings and exercised its “discretion” in favor of a 
result which Congress almost certainly did not intend, and 
which, as the District Court found in this circumstance,

44



was not necessary in order to encourage enforcement of the 
Civil Rights laws.

B. The Court Of Appeals In Effect Injected It­
self Into The State’s Legislative Appropriation 
Process.

By awarding fees to the Seattle School District, the 
panel majority has, in effect, appropriated funds from the 
State’s treasury in favor of a municipal corporation of the 
State, created, funded and controlled by the State, and 
deriving its existence and authority entirely from state 
law. It has, inescapably, made a decision with respect to 
the appropriate funding of state programs and the estab­
lishment of state legislative priorities. Such action by the 
Court (or by Congress, if indeed that is what it intended) 
constitutes an unwarranted interference in the State’s 
“ability to function effectively in a federal system.” Na­
tional League of Cities v. Usery, 426 U.S. 833 (1976). 
While admittedly, Usery, is not dispositive in the case of a 
statute enacted pursuant to § 5 of the Fourteenth 
Amendment, rather than the Commerce Clause, its reason­
ing nevertheless is compelling under these circumstances 
and should guide the court here.

The trial court’s refusal to award attorneys’ fees was 
not an abuse of discretion. This Court should not depart 
from established standards of deference to the states in 
this area of internal fiscal policy, absent a showing of 
absolute necessity. See, San Antonio Independent School 
District u. Rodriguez, 411 U.S. 1, 40 (1973).

C. It Is Doubtful That Appellee School 
Districts Even Fall Within The Ambit Of The At­
torneys’ Fees Statutes.

The Court of Appeals cited no authority for the 
proposition that municipal corporations — as creatures of 
statute — are even with the ambit of 42 U.S.C. § 1988 or 
20 U.S.C. § 3205 so that they may, in this manner, demand 
additional public funds to replace those already furnished 
to them by the state legislature. Congress did not intend or 
even envision such a result.

In connection with the passage of 42 U.S.C. §1988, for

45



46

example, the Senate Report which accompanied the bill 
stated, in part, as follows:

“All of the civil rights laws depend heavily upon 
private enforcement, and fee awards have proved an 
essential remedy if private citizens are to have a 
meaningful opportunity to vindicate the important 
congressional policies which these laws contain. In 
many cases arising under our civil rights laws, the 
citizen who must sue to enforce the law has little or 
no money with which to hire a lawyer. If private 
citizens are to be able to assert their civil rights, and 
if those who violate the nation’s fundamental laws are 
not to proceed with impunity, then citizen must have 
the opportunity to recover what it costs them to 
vindicate these rights in court.” [1976 U.S. Code 
Cong. & Admin. News at page 5908.] [Emphasis sup­
plied.]

The legislative policy in favor of subsidizing private liti­
gants has uniformly been reaffirmed by the courts. The 
case most often cited in support of this general expression 
of Congressional policy is Newman v. Piggie Park Enter­
prises, 390 U.S. 400 (1968), decided before either of the 
statutes here involved was enacted.

The essence of this Court’s reasoning was stated at 
390 U.S. 402:

“ * * * If successful plaintiffs were routinely forced
to bear their own attorneys’ fees, few aggrieved par­
ties would he in a position to advance the public 
interest by invoking the injunctive powers of the fed­
eral courts. Congress therefore enacted the provision 
for counsel fees — not simply to penalize litigants 
who deliberately advance arguments they know to be 
untenable but, more broadly, to encourage 
individuals injured by racial discrimination to seek 
judicial relief under Title II.” (Emphasis supplied.)
The so-called “ private attorney general” rationale for 

awards of attorneys’ fees makes no sense in the present 
context. The original plaintiffs here were school districts 
— political subdivisions of the state, the operations of 
which are entirely publicly funded — not private citizens 
acting as “ private attorneys general.” That term itself con­
notes belief on the part of the courts that, when matters



47

are finally settled and it is the private plaintiffs who have 
prevailed, it is appropriate that the public treasury should 
be tapped to pay for litigation found to have been 
commenced in the public interest. But that is precisely 
what has happened here already. The language in the 
foregoing excerpts expressing concern about the “ cost of 
private enforcement” has no application whatsoever in the 
situation where, as here, state-funded municipal 
corporations themselves seek the relief.

To summarize then, it seems amply clear that the 
Congressional purpose in enacting the various civil rights 
attorneys’ fees statutes would not at all be served by 
allowing the school districts to replenish public funds al 
ready given them by the state for this very purpose.

If the Court of Appeals’ view prevails, it may be coun­
terproductive. States are today facing what can honestly 
be described as a fiscal crisis. The courts cannot fail to 
recognize this reality. Intense competition exists among 
worthwhile and important public programs for the use of 
increasingly scarce public dollars. The result of awards 
such as that of the Court below in this case may indeed be 
the withdrawal by the states of “ legal services” funds from 
their subordinate public bodies and other publicly funded 
agencies; such as legal services organizations. To avoid the 
fiscal drain of “double dipping,” state legislatures may 
choose to require those theretofore state-funded agencies 
to support their legal services efforts entirely — or at least 
in significant part — from other sources. The fundamental 
purpose of the civil rights attorneys’ fee statutes will thus 
not be fostered, but rather inhibited.

CONCLUSION
Initiative 350 is valid. It creates no impermissible 

special classification, was not motivated by a purpose to 
establish or foster a system of segregated schools and is 
not “overly inclusive.” Alternatively, the school districts 
are entitled to no award of attorneys’ fees.

Kenneth 0 . Eikenberry,
Attorney General,



48

M a l a c h y  R .  M u r p h y ,
Deputy Attorney General,

T h o m a s  F .  C a r r ,
Senior Assistant 
Attorney General,

T i m o t h y  R .  M a l o n e ,
Assistant Attorney General.