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

    No . 81-9

IN THE
SUPREME COURT 

OF THE
UNITED STATES

OCTOBER TERM, 1981

STATE OF WASHINGTON, et al . ,
Appellants,

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

Appellees.

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

CIRCUIT

BRIEF OF PASCO INTERVENOR APPELLEES

Hall Baetz 
Ladd Leavens 
Counsel of Record
DAVIS, WRIGHT, TODD, RIESE & JONES 

Attorneys for Pasco 
Intervener Appellees

Office and Post Office Address:
4200 Seattle-First National 

Bank Building
Seattle, Washington 98154 
(206) 622-3150



Questions Presented
1. Is Initiative 350 unconstitu­

tional?
2. If Initiative 350 is constitu­

tional, does its mere existence raise a 
case or controversy between a school 
district seeking to desegregate its 
schools pursuant to a perceived obliga­
tion to do so, and the State of 
Washington?

i



TABLE OF CONTENTS
Page

Statement ........................  1
Summary of Argument ..............  9
A r g u m e n t ........................... 10

I. Initiative 350 Is Unconstitu­
tional ..................   10

II. If the Initiative Is Constitu­
tional, There Is No Justiciable 
Case or Controversy.......... 23

Conclusion 38



TABLE OF CASES
Page

Alexander v. Holmes County Board of 
Education, 396 U.S. 19 (1969) . . 14

Babbitt v. United Farmworkers Na-
tional Union, 442 U.S. 289 (1979) 24

Baggett v. Bullitt, 377 U.S.
360 ( 1 9 6 9 ) ....................  11

Brown v. Board of Education II,
349 U.S. 294 (1955)............  14

Davis v. Board of Commissioners of
Mobile County, 402 U.S. 33 (1971) 15

Dayton Board of Education v. Brink- 
man, 443 U.S. 526 (1979) . . . .  14

Green v. School Board of New Kent
County, 391 U.S. 430 ..........  14

Hunter v. Erickson, 393 U.S. 385
( 1 9 6 9 ) ........................  10

Keyes v. School District No. 1,
413 U.S. 189 (1973)............  10

Keyishian v. Board of Regents of
New York, 385 U.S. 589 (1967) . . 11

Kidwell v. Meikle, 597 F.2d 1273
(9th Cir. 1979)................  28

Lake Carrier* s Association v.
MacMullan, 406 U.S. 498 
(1972) .............. 26, 35



Page

McLaughlin v. Florida, 379 U.S. 184 
( 1 9 6 4 ) ........................  10

Massachusetts v. Mellon, 262 U.S.
447 ( 1 9 2 3 ) ....................  26

North Carolina Board of Education v. 
Swann, 402 U.S. 43 (1971) . . .12, 15

Personnel Administrator of
Massachusetts v. Feeney, 442 U.S.
256 ( 1 9 7 9 ) ....................  10

Poe v. Ullman, 367 U.S. 497 (1961) 24
Schlesinger v. Reservists Committee 
to Stop the War, 418 U.S. 208 
( 1 9 7 4 ) ........ ................  25

Scott v. District Attorney, Jeffer­
son Parish, State of Louisiana,
309 F.Supp. 833 (E.D. La. 1970), 
aff1d 437 F.2d 500 (5th Cir.
1971)............................. 11

Sea Ranch Association v. California 
Coastal Zone Conservation Commis- 
sions, 537 F.2d 1058 (9th CiF.
1976)..........................  27

Seattle School District No. 1 v.
State of Washington, 633 F.2d
1338 (9th Cir. 1 9 8 0 ) ............ 33

Severson v. Duff, 322 F.Supp. 4
(M.D. Fla. 1 9 7 0 ) ...............  11

iv



Page

Stearns v. Wood, 236 U.S. 75 (1915) 26
Swann v. Chariotte-Mecklenburg 

Board of Education, 402 U.S. 1 
( 1 9 7 1 ) ................ 14, 15, 20

Washington v. Davis, 426 U.S. 229
( 1 9 7 6 ) ........................  10

v



Statement
This brief is filed on behalf of 

the East Pasco Neighborhood Council and 
a number of individual residents of East 
Pasco, all of whom will be referred to 
as the "Pasco Intervenors."

Pasco is a small city in south­
eastern Washington State. Prior to 
1965, the Pasco elementary schools were 
segregated. Almost all of Negro elemen­
tary school children attended a single 
elementary school in East Pasco, east of 
the railroad tracks that divide the 
city. Most of the white children in 
Pasco attended more modern schools in 
West Pasco. (J.A. 51-52)

In 1965, without a court order, the 
Pasco School District adopted a student 
assignment plan to equalize pupil popu­
lation by race and socio-economic back­
ground. The East Pasco elementary 
school was closed, and the East Pasco

1



elementary students were thereafter 
transported to West Pasco. (J.A. 52) A 
new elementary school was later con­
structed in West Pasco. The school was 
located at least in part in recognition 
of the fact that there was a student 
desegregation program being carried out. 
(J.A. 33-34)

There has never been any effort by 
the state, the county, the federal 
government, or any government entity to 
terminate the Pasco desegregation 
program. (J.A. 36) Even after passage 
of Initiative 350, no government offi­
cial or private individual threatened to 
attempt to terminate the Pasco desegre­
gation program. (J.A. 36) Passage of 
Initiative 350 in 1978 caused the Super­
intendent of the Pasco School District 
to believe, however, that the thirteen 
year old Pasco desegregation program 
could not continue. (J.A. 31) The

2



Pasco School District therefore joined 
with the Seattle and Tacoma school 
districts in this action against the 
State claiming that the Initiative was 
unconstitutional. (R. 1 )

The plaintiff school districts did 
not limit their challenge to the uncon­
stitutionally of the Initiative. They 
went further, to allege that school 
segregation resulted from "racially dis­
criminatory past actions of constitutent 
parts or agencies of the governments of 
the State of Washington and the United 
States of America." (Complaint, R. 1, 
paragraph 30; relating to the Seattle 
School District but joined in by Pasco 
School District at paragraph 49.) The 
School Districts alleged that desegrega­
tion was "legally required." (Complaint 
paragraph 1.) They alleged that Initia­
tive 350 would unconstitutionally inter­
fere in the "performance of their duty

3



as affirmed in their oaths of 
office. . . . ” (Complaint paragraph 
44.) They alleged that Initiative 350 
would prevent school directors and 
administrators "from fulfiling their 
constitutional duties and from carrying 
out their oaths of office to support and 
maintain the Constitution of the State 
of Washington and the United States." 
(Complaint paragraph 47.) They argued 
that the duty is obvious and beyond 
question:

While on the record now 
before the court, and without 
judicial holding on the issue, 
it is difficult to show plain­
tiff school districts had any 
duty to desegregate its schools, 
but the facts do show, for 
example, (a) segregated schools 
in Seattle, and (b) segregated 
housing patterns. Unless both 
of these phenomena occurred 
through some unknown process 
akin to immaculate conception, 
it seems reasonable to con­
clude they involve constitu­
tional concerns of great 
magnitude. The Initiative 
will thus interfere with any 
duty the District has to 
desegregate its schools.

4



[Plaintiffs' Second Memorandum 
in Support of Motion for 
Preliminary Injunction, page 23. ]
The Pasco Intervenors moved to 

intervene in the litigation on the 
grounds that, although the Pasco School 
District had undertaken to prove that it 
had a constitutional duty to desegregate 
its schools, the School District could 
not be expected to allege and prove its 
own intentionally discriminatory acts, 
practices and ommissions. (R. 72)

The District Court divided the case 
into two phases. (J.S. App. B-2) 
"Phase I" involved the constitutionality 
of Initiative 350. "Phase II" was to 
resolve the question of whether the 
School Districts were obligated to 
maintain desegregation programs, even if 
the Initiative was found to be constitu­
tional .

5



As the action progressed, the State 
Attorney General filed various papers 
with the District Court stating that, 
notwithstanding the passage of Initia­
tive 350, it was proper for the plain­
tiff School District to carry out a 
perceived constitutional duty to de­
segregate its schools, without first 
seeking court approval:

[As construed by the Attorney 
General, Initiative 350 does 
not apply] where a school 
district is constitutionally 
required to assign students 
elsewhere. . . . [Brief of 
State Defendants in Opposition 
to Motion for Preliminary 
Injunction, R. 68, page 4.]
Thus, where a given Washington 
school district finds itself 
under a constitutional duty to 
override Initiative 350, it 
may certainly do so. . . .
[Id. at 27]
Initiative 350 only inhibits 
assignment of students away 
from schools nearest or next 
nearest their home. That is 
all. Even this inhibition, 
however, must give way to con­
stitutional imperatives which 
may override. . . .  [Id. at 54. ] —

6



[Pjlaintiffs repeatedly assume, 
for purposes of their own 
argument, that Initiative 350 
must be interpreted in a 
fashion which conflicts with 
the provisions of the United 
States Constitution (notwith­
standing the position taken 
before the Court by the state's 
chief legal officer, the 
attorney general, to the 
contrary). . . . [State's
brief in response to plain­
tiffs' first motion in limine, 
page 8.]
[I]f constitutionally required 
to do so, school districts 
could assign students to other 
than their nearest or next- 
nearest schools to remedy de 
jure segregation without a 
court order. . . . [State's 
answers to plaintiffs' first 
interrogatories and requests 
for admissions, page 9.]

It further appeared that the authors of 
the Initiative, CiVIC, agreed that 
school districts did not have to initiate 
litigation to establish their constitu­
tional rights and duties before proceed­
ing with a desegregation plan:

Nor does Section 6 require, 
and it was not intended to 
require, school districts or 
minorities to initiate litiga­
tion to establish their con-

7



stitutional rights or duties. 
Section 6 is superfluous and 
was added simply to make clear 
what is the law. [Intervenor 
Defendants' Memorandum in 
Response to Plaintiffs' Motions 
In Limine to Exclude Evidence, 
page 5]
Pasco Intervenors therefore filed a 

Suggestion of Lack of Jurisdiction 
(R. 215) pointing out that there had 
never been a genuine and immediate 
threat by the state to attempt to termi­
nate Pasco's desegregation program, and 
that, on the contrary, the State had 
repeatedly acknowledged the right of the 
Pasco School District to carry' out its 
perceived constitutional duty to desegre­
gate, without first obtaining a court 
order. Pasco Intervenors argued to the 
District Court that the so-called "second 
phase" would involve litigation by the 
Pasco School District against an opponent 
(the State) that had never expressed 
disagreement with the School District's 
actions.

8



The District Court concluded that 
there was a justiciable controversy, 
stating that the "mere existence of this 
statute, accompanied by the potentiality 
of enforcement action, presents a real 
and immediate threat of injury." R. 375. 
The Court of Appeals affirmed the Dis­
trict Court's ruling on justiciability.

Summary of Argument 
Initiative 350 is unconstitutional 

for the reasons stated by the District 
Court, and because it has the genuine 
and immediate effect of preventing 
school administrators from voluntarily 
taking action designed to assure equal 
protection of the laws. If the Initia­
tive is not unconstitutional and does 
not have that effect, then there is no 
justiciable case or controversy at this 
time requiring further litigation be­
tween the Pasco School District and the 
State.

9



ARGUMENT
I.

Initiative 350 Is Unconstitutional
Initiative 350 is unconstitutional 

for the three reasons expressed by the 
District Court. First, the Initiative 
creates a classification based upon race 
without compelling justification. See 
Personnel Administrator of Mass. v. 
Feeney, 442 U.S. 256, 272 (1979); Hunter 
v. Erickson, 393 U.S. 385 (1969);
McLaughlin v. Florida, 379 U.S. 184 
(1964). Secondly, the Initiative has a 
disproportionately adverse impact on 
racial minorities, and its adoption was 
at least in part an intentionally dis­
criminatory act. Washington v. Davis, 
426 U.S. 229, 239-41 (1976); Keyes v.
School District No. 1, 413 U.S. 189,
205, 208 (1973). Thirdly, the Initia­
tive is overbroad, purporting to outlaw 
student reassignment in the absence of a

10



court order even where such reassignment 
is constitutionally required. See 
Keyishian v. Board of Regents of New 
York, 385 U.S. 589 (1957); Baggett v. 
Bullitt, 377 U.S. 360 (1969); Severson 
v. Duff, 322 F. Supp. 4 (M.D. Fla. 
1970); Scott v. District Attorney, 
Jefferson Parish, State of Louisiana, 
309 F. Supp. 833 (E.D. La. 1970), aff’d, 
437 F .2d 500 (5th Cir. 1971).

In spite of the facial neutrality 
of the Initiative, the statute is 
nothing more than a negative pregnant 
with the clear and solitary message that 
student reassignment shall be lawful 
except if the purpose is to promote 
racial balance, integrated education, 
and a unitary school system that affords 
equality in educational opportunity. In 
this sense the statute is no different 
than that struck down by this Court in

11



North Carolina Board of Education v.
Swann, 402 U.S. 43 (1971). The district 
court so found, and the court’s findings 
are fully supported in the record.

There is a fourth reason that the 
Initiative is unconstitutional. The 
Initiative prohibits assignment of 
school children for purposes of 
achieving racial balance in the absence 
of a court order. This Court on 
numerous occasions has held, however, 
that in some circumstances a school 
district may be constitutionally 
required to reassign children in order 
to eradicate the effects of past de jure 
segregation, even without a court order. 
Initiative 350 would deter school 
officials from utilizing such constitu­
tionally required desegregation programs 
in the absence of a court order. It 
would prevent or discourage school 
administrators from voluntarily taking

12



action to remedy disadvantages resulting 
from past racial prejudice, and would 
virtually insure judicial involvement in 
any school desegregation effort in­
volving student reassignment. It would 
force both school districts and victims 
of discrimination to litigate to protect 
and enforce the constitutional right to 
equal protection of the laws. That 
burden on the exercise and enforcement 
of constitutional rights renders 
Initiative 350 unconstitutional.

This argument is founded upon four 
fundamental premises, each of which is 
deeply embedded in Supreme Court law 
since 1954. The first of these premises 
is that separate school systems for 
different races are inherently unequal. 
The second premise is that a school 
district that participates in acts or 
omissions intended to maintain racial 
segregation in the schools violates the

13



constitutional rights of its school 
children to equal protection of the 
laws. The third premise is that a 
school board which supervises a district 
that has been segregated by the inten­
tional acts of those in authority is 
under a primary obligation and duty, 
imposed by the Constitution and not the 
courts, to move immediately to eradicate 
the effects of this de jure segregation. 
Dayton Board of Education v. Brinkman, 
443 U.S. 526, 537 (1979); Alexander v. 
Holmes County Board of Education, 396 
U.S. 19, 20 (1969); Green v. School 
Board of New Kent County, 391 U.S. 430, 
435-39 (1968); Brown v. Board of Educa­
tion Id, 349 U.S. 294, 299 (1955). 
“Judicial authority enters only when 
local authority defaults." Swann v. 
Charlotte-Mecklenburg Board of Educa­
tion, 402 U.S. 1, 16 (1971). The fourth 
and final premise is that a school board

14



in some, though clearly not all, circum­
stances, will be obligated by the Consti­
tution to assign students to schools 
other than their neighborhood schools, 
and, if necessary, to provide bus trans­
portation for those students in order to 
eliminate the effects of de jure segrega­
tion. North Carolina Board of Education 
v. Swann, 402 U.S. 43 (1971); Davis v.
Board of Commissioners of Mobile County, 
402 U.S. 33 (1971); Swann v. Charlotte- 
Mecklenburg Board of Education, 402 
U.S. 1, 29-31 (1971).1

This remedy may be required in rela­
tively few cases, as, for example, where school 
authorities by placement of school facilities 
have made integration by any other means impos­
sible. This situation has occurred in Pasco 
since adoption of its desegregation program in 
1965. See footnote five, infra. Such circum­
stances leave transportation of students as the 
only viable means of eradicating the consti­
tutional violation. ’’Desegregation plans," as 
this Court stated in 1971, "cannot be limited to 
the walk-in school." Swann v. Charlotte- 
Mecklenburg Board of Education, 402 U.S. 1, 30 
(1971).

15



In sum, this Court has established 
that, even without a court order, in 
some cases school districts must trans­
port students in order to insure equal 
protection of the laws. Courts must 
intervene to impose such a remedy only 
secondarily, if the responsible state 
officials abdicate this constitutionally 
imposed duty.

It follows that a student who is
being denied his or her rights should
attempt to enforce these rights first by
application to the school districts, and
only if this effort fails, by applica-

2tion to the courts.

Approaching a school board to find a 
solution is less likely than service of a com­
plaint to engender hostility. More importantly, 
a family attempting to enforce its rights may by 
negotiation achieve a goal that could cost tens* 
or hundreds of thousands of dollars, and years 
of time and effort, to achieve through litiga­
tion. The volumes of the United States Reports 
are replete with enormously expensive multiparty 
desegregation cases that have been proceeding 
for more than half a decade. Resolution through 
voluntary, non-judicial processes is the most 
inexpensive and efficient way to proceed.

16



Initiative 350, by plain language, 
prohibits assignment of students to 
other than the nearest or next nearest 
school for purposes of achieving racial 
balance, except in compliance with a 
court order.3 The Initiative thus 
infringes upon the mandate of the Con­
stitution by preventing school districts 
from complying with their obligations —  
totally independent of court order —  to 
remedy past de jure segregation, and by 
foreclosing to victims of racial preju-

J The Initiative thus shifts the burden of 
proof from the opponents of a desegregation 
program to the proponents. If the Initiative 
means what it says, before conducting a desegre­
gation program involving mandatory student 
reassignments, a school district must undertake 
to prove, in a court action it initiates, that 
it has a duty to desegregate, and that a busing 
program is the appropriate method to do so. 
This is the virtual reverse of how the system 
should work. Litigation on these issues should 
be discouraged. The federal courts should avoid 
desegregation litigation to the extent they can. 
The states and their school districts should be 
encouraged to solve their problems without the 
primary involvement of the federal courts.

17



dice the most efficient and least expen­
sive method of restoring their rights.

It is irrelevant to the constitu­
tionality of Initiative 350 that it 
might be interpreted, not as it reads, 
but as the State of Washington has 
insisted it should read, to permit 
busing for racial balance wherever 
constitutionally required, even without 
a court order. Even so interpreted, the 
effect of the law on the actions of 
school officials would be the same —  
school officials would in all likelihood 
decline to institute or continue busing
programs in the absence of a court 

4order. The existence of an obligation 
to remedy de jure segregation depends 
upon the complex history of conduct

That is apparently what would happen in 
this case if the Initiative is upheld. The 
school administrators of the Pasco and Seattle 
school districts testified that they would feel 
compelled to terminate their programs if the 
Initiative was allowed to stand. (J.A. 31, 75.)

18



related to race in a school district, 
and on the past and present actions of 
state and local administrative officials. 
Termination of racial balancing programs 
because of Initiative 350 is the more 
clearly marked pathway. Any school 
official genuinely concerned with obeying 
state law —  as most surely are —  will 
find it much easier to take a passive 
posture rather than invite litigation 
from antibusing parents or from the 
state. Planning for desegregation 
programs is obviously more difficult if 
done in the face of a statute that, if 
it means what it says, prohibits such 
programs without a court order, and 
invites the intervention of those opposed 
to busing.

Under the law as explicated by this 
court since Brown, de jure segregation 
exists only where intentional official 
action has caused or contributed to

19



segregated schools. School officials 
thus could not voluntarily institute a 
plan to achieve racial balance, even 
under the Washington Attorney General's 
interpretation of Initiative 350, without 
admitting, by words or deeds, that there 
has been a discriminatory governmental 
purpose leading to segregation of the 
schools.5 It does not reflect ill on

Because of the peculiar circumstances in 
Pasco, it may be easier for the school adminis­
trators to acknowledge the duty to continue the 
transportation program. The East Pasco elemen­
tary school was closed in 1965, and after the 
busing program was developed, new schools were 
constructed in West Pasco. This was done in 
part in recognition of the student transporta­
tion program. (J.A. 32-36.) The effect of 
termination of the busing program because of 
Initiative 350 would be to worsen the stituation 
from that which existed prior to 1965. Hispanic, 
Asian, Negro and American Indian students would 
be concentrated in older schools to the east, 
but outside their neighborhoods. The white 
students further to the west would be assigned 
to the newer schools within their neighborhoods. 
(J.A. 51-56.) There can be no genuine dispute 
about the constitutional duty to maintain a 
mandatory student assignment program in Pasco, 
considering the pattern of school construction. 
See Swann v. Charlotte-Mecklenburg Board of 
Education, 402 U.S. 1, 20-21 (1971). ~

20



public school officials to suggest that 
they will be reticent to make such 
admissions. In the absence of Initia­
tive 350, Pasco school officials volun­
tarily instituted busing programs to 
cure de jure segregation, but in doing 
so they did not have to call themselves 
racists. Appellants’ suggestion that 
the more liberal interpretation of the 
Initiative will cure its constitutional 
problems is thus disingenuous; school 
boards would simply be unwilling to 
reassign students in the face of the 
Initiative's prohibition without a court 
order requiring them to do so.

A statute that flatly prohibits 
assignment of students to achieve racial 
balance, except as permitted by court 
order, will almost certainly prevent 
voluntary initiation of such programs 
even when they are perceived by school 
officials to be required by the Consti­

21



tution. It will discourage —  indeed 
prevent —  school officials from attempt­
ing to satisfy their obligations under 
the Constitution, and it will force 
school districts and affected individ­
uals into years of litigation to assure 
equal protection of the laws.

The courts are not lone sentinals 
guarding the rights of citizens to equal 
protection of the laws. Every citizen 
is entitled to equal protection, without 
first obtaining a court order, and every 
state official is obligated to ensure 
that the citizens of the state receive 
equal protection, without first being 
served with a court order. Initiative 
350 has the effect of preventing or 
discouraging school administration 
officials from voluntarily taking action 
designed to assure equal protection of 
the laws. As such it improperly burdens 
the exercise and enjoyment of constitu­

22



tional rights, and violates the Equal 
Protection Clause of the Constitution.

II.
If the Initiative Is 

Constitutional, There Is 
No Justiciable Case or 
_______Controversy_______

If the Court concludes that despite 
Initiative 350, the Pasco school ad­
ministrators may continue to reassign
students to achieve racial balance as 
required by the Constitution, and if the 
Court concludes that the Initiative does 
not have the effect of preventing or 
discouraging the Pasco school adminis­
trators from voluntarily taking action 
designed to assure equal protection of 
the laws, then there is no justiciable 
case or controversy between the Pasco 
School District and the State of
Washington, and the Pasco School
District complaint should be dismissed.

Justiciability is a legal concept 
without fixed content or susceptibility

23



to verification. Poe v. Ullman, 367
U.S. 497 (1961).

The basic inquiry is whether 
the 'conflicting contentions 
of the parties . . . present a 
real, substantial controversy 
between parties having adverse 
legal interests, a dispute 
definite and concrete, and not 
hypothetical or abstract.'

Babbitt v. United Farmworkers National 
Union, 442 U.S. 289, 298 (1979). Ad­
herence to the requirement insures that 
the issues in a lawsuit will be thorough 
ly framed and vigorously contested. The 
presence of injury to the plaintiff is 
the keystone of the justiciability 
requirement.

Concrete injury, whether 
actual or threatened, is that 
indispensable element of a 
dispute which serves in part 
to cast it in a form tradi­
tionally capable of judicial 
resolution. It adds the 
essential dimension of speci­
ficity to the dispute by 
requiring that the complaining 
party have suffered a particu­
lar injury caused by the 
action challenged as unlawful.
This personal stake is what 
the Court has consistently

24



held enables a complainant 
authoritatively to present to 
a court a complete perspective 
upon the adverse consequences 
flowing from the specific set 
of facts undergirding his 
grievance. Such authoritative 
presentations are an integral 
part of the judicial process, 
for a court must rely on the 
parties' treatment of the 
facts and claims before it to 
develop its rules of law.
Only concrete injury presents 
the factual context within 
which a court, aided by parties 
who argue within the context, 
is capable of making decisions.

Moreover, when a court is 
asked to undertake constitu­
tional adjudication, the most 
important and delicate of its 
responsibilities, the require­
ment of concrete injury further 
serves the function of insuring 
that such adjudication does 
not take place unnecessar­
ily. . . . [C]oncrete injury 
removes from the realm of 
speculation whether there is a 
real need to exercise the 
power of judicial review in 
order to protect the interests 
of the complaining party.

Schlesinger v. Reservists Committee to
Stop the War, 418 U.S. 208, 220-21
(1974). Actual injury or the immediate
threat of actual injury is a firm and

25



longstanding prerequisite for consti­
tutional adjudication by a federal 
court. Massachusetts v. Mellon, 262 
U.S. 447 (1923); Stearns v. Wood, 236 
U.S. 75 (1915).

If the Initiative meets constitu­
tional requirements and does not prevent 
or discourage the Pasco school adminis­
trators from reassigning students as 
required by the Constitution, then the 
Pasco school district has sustained no 
actual injury in this case by the mere 
existence of the Initiative. No one has 
even threatened to attempt to utilize 
the statute to terminate the Pasco plan. 
The Pasco school district has not been 
called upon to terminate its student 
assignment program. Compare Lake 
Carrier's Association v. MacMullan, 406 
U.S. 498, 507-508 (1972). It is entire­
ly speculative at this time whether a 
real controversy may develop as to

26



Pasco's programs. So long as the Pasco 
School District is free to continue its 
voluntarily undertaken desegregation pro­
gram, without fear of violation of the 
statute if it does so, there is no issue 
requiring "Phase II" of this lawsuit.5

The mere possibility of an attempt 
to terminate the Pasco program because 
of Initiative 350 does not constitute 
the immediate threat of enforcement 
necessary to justify resolution by a

In Sea Ranch Ass 'n v. California Coastal 
Zone Conservation Commissions, 537 F.2d 1058, 
1063 (9th Cir. 1976), the court pointed out that 
an allegedly unconstitutional statute clear on 
its face could be challenged without awaiting 
its application or threat of application, since 
the very existence of the restriction created 
the necessary case or controversy as to any 
party having standing to challenge it. The 
court pointed out, however, that where the 
constitutional question presented to a federal 
court turns on the specific application of the 
statute, no case or controversy is presented 
absent some indication that the plaintiffs' 
rights had been subjected to a real and immedi­
ate threat. . Applying the Sea Ranch analysis 
here, if the Initiative is constitutional "on 
its face," then a real and immediate threat will 
be necessary before "Phase II" is justiciable.

27



federal court of the constitutional
issues proposed to be tried in Phase II
of this litigation.

A long line of cases holds 
that federal courts may not 
decide suits in which the 
adversity of the parties rests 
on the happening of some event 
whose future occurrence is in 
doubt. This rule effectuates 
several sound policies. It 
conserves judicial energies 
for litigants who have a real 
need for official dispute 
resolution; it ensures a 
concrete and adverse presenta­
tion of factual and legal 
issues to protect against 
ill-advised adjudication; and 
it restrains the judiciary 
from injecting itself into the 
affairs of the legislative and 
executive branches.

Kidwell v. Meikle, 597 F.2d 1273, 1289
(9th Cir. 1979).

The possibility of an attempt to 
terminate the Pasco program is in serious 
doubt. No state official has threatened

7"enforcement” against Pasco. Neither

It is unclear what "enforcement" would 
be. The statute contains no enforcement provi­
sions and no penalties.

28



the State nor CiVIC was interested in 
the Pasco program until Pasco joined in 
this lawsuit. No party to this lawsuit 
has contended that Initiative 350 should 
be read and applied literally. The 
state has consistently taken the posi­
tion that a state or school district has 
an obligation to cure the effects of de 
jure segregation, and that the Initia­
tive should be read to permit such

Although the complaint sought relief on 
behalf of three school districts, including 
Pasco, the complaint did not, aside from 
identifying the Pasco school district, devote 
even one sentence to a discussion of the history 
of the desegregation program in Pasco. As the 
case developed, the reasons for this absence of 
detail became clear. There was no evidence that 
the State of Washington, or CiVIC, or any propo­
nents of Initiative 350, or any opponents of 
busing in Seattle, or anyone else had any desire 
to bring an end to the Pasco desegregation 
program. The record indicated that CiVIC 
drafted Initiative 350 entirely in response to 
the Seattle plan, and the District Court so 
found. (Findings of Fact 7.1-7.9, R- 393.)

29



action even in the absence of a court
9order. If the State were to seek in 

some way to enforce the statute in 
Pasco, its first step, necessarily, 
would be to examine the history of the 
school district to ascertain if such an 
obligation exists. The State could 
conceivably conclude that the program 
was constitutionally unwarranted, and it 
might start an action to compel its 
termination. Alternatively, the State 
might choose to simply accept the judg­
ments of school administrators, and

The State maintains this position in its 
brief on this appeal. See Appellants’ Brief, 
pages 38-39:

The appellants —  charged by the 
Complaint with enforcement of Initia­
tive 350 —  have insisted from the 
outset upon a construction of the 
statute which recognizes and pro­
vides for the constitutional neces­
sity to undertake mandatory desegre­
gation steps in certain instances 
without first having to seek an 
authorizing court order of some 
sort.

30



avoid a dispute. Or the State might
conclude that the current desegregation

10 .program, or some revised program, is 
necessary to comply with dictates of the 
Constitution. Following investigation, 
the State might actively support an 
amended Pasco desegration program, and 
oppose any effort to terminate the 
desegregation efforts. Considering the 
many different possibilities, the threat 
of "enforcement" is not sufficiently 
genuine and immediate to create a case 
or controversy justiciable by the 
federal courts.

The case or Controversy issue is of 
more than academic importance. If the

In arguing that no burdens are imposed 
on minorities by Initiative 350, the State in 
its brief alleges that the Pasco plan is subject 
to termination because only the East Pasco 
children are transported. Appellants' Brief, 
pages 15-16. Under the circumstances, a "two- 
way" transportation system might be required. 
The federal courts should not address the issue, 
however, until a real case or controversy is 
presented in that regard.

31



Initiative is found to be constitutional 
and if the complaint is not dismissed, 
the case would apparently proceed to 
"Phase II" at which time the Pasco 
School District would undertake to prove 
that it was, and is, obligated to re­
assign students in order to desegregate 
its schools. This would apparently 
occur even though the defendant has 
never denied the existence of that 
obligation, and even though it has 
repeatedly indicated that if there is a 
duty to desegregate the schools, plain­
tiff should "certainly" do so. The 
district court would be asked to approve 
the Pasco student assignment policies 
even before any dispute developed con­
cerning those policies. While the 
school officials might well believe that 
they had such a duty, they could not be 
expected to energetically advocate their 
own culpability, so the presence of the

32



Pasco Intervenors would be necessary to 
assure that the burden of proof was 
carried. A massive, time consuming and 
expensive multiparty lawsuit would 
result, even though there was no genuine 
controversy to generate it.

The Ninth Circuit addressed the 
justiciability issue, and concluded 
based upon four factors that the case 
was justiciable. Seattle School Dis­
trict No. 1 v. State of Washington, 633 
F. 2d 1338, 1342 n.l (9th Cir. 1980). 
Pasco Intervenors assert that the Ninth 
Circuit in so concluding misconstrued 
the case as it relates to Pasco.

First, the Court of Appeals noted 
that "this is a highly specific statute, 
clearly applicable to Pasco's student 
assignment policies". The statute may 
indeed be specific in some sense, but it 
is emphatically not applicable to 
Pasco's school assignment policies. If

33



this statute is interpreted in the 
manner in which the State Attorney 
General in its brief has indicated that 
it should be interpreted, then the 
statute clearly would not be applicable 
to a constitutionally required busing 
program.

The Court of Appeals observed, 
secondly, that Initiative 350 is a 
recent statutory enactment and "not a 
law which has lain moribund for years." 
Pasco Intervenors suggest that the age 
of a statute has little bearing on the 
likelihood that it would be applied in 
such a manner as to force Pasco to 
terminate its desegregation program. 
The law might well have lain moribund 
for many years, at least as to Pasco, if 
the Pasco School District had permitted 
it to do so.

Thirdly, the Court of Appeals 
stated that parties in a legal status

34



identical to that of Pasco, meaning, 
presumably, Seattle, had been the sub­
ject of immediate threats of enforce­
ment. By virtue of the history of the 
enactment of Initiative 350, and by 
virtue of the almost certain existence 
of distinctions in the history of racial 
integration in the two school systems, 
the Pasco legal status is not remotely 
like that of Seattle. Threats of enforce­
ment against Seattle, immediate or 
otherwise, have little bearing on the 
likelihood of enforcement in Pasco. In 
any event, the threats of enforcement in 
Seattle were vague and ambiguous at 
best. (R. 1, attachment.)

Finally, the Court of Appeals 
observed that Initiative 350 is a civil 
rather than a criminal statute, and 
imposes an affirmative duty to comply.
In support of this proposition, the 
Court of Appeals cited Lake Carriers

35



Association v. MacMullan, 906 U.S. 498
(1972). That case, however, is obvi­
ously different. The court in Lake 
Carriers found that state authorities 
had already "sought on the basis of the 
act and the threat of future enforcement 
to obtain compliance as soon as possi­
ble." Lake Carriers Association v. 
MacMullan, supra, 406 U.S. at 507. 
Here, there has not even been an invests 
gation by the state into the necessity 
for a Pasco desegregation program, let 
alone a threat that the Initiative would 
be "enforced" to obtain compliance as 
soon as possible in Pasco.

A "Phase II" action to establish 
the existence of de jure segregation, 
and to craft a desegregation program to 
remedy the wrong, places huge burdens on 
the courts and litigants. This Court 
should refuse to permit involvement of 
the federal courts in these sensitive

36



issues of social and local policy unless 
and until it is clear that the issues 
cannot and will not be satisfactorily 
resolved by the school district and the 
state without federal court interven­
tion.

Litigation such as proposed for 
"Phase II" will only be necessary if the 
Pasco School District fails to carry out 
its duty to continue to desegregate its 
schools. This Court should neither 
require, nor permit, the Pasco School 
District to force the State or the Pasco 
Intervenors into desegregation litiga­
tion at this time. Instead, this Court 
should expressly hold that the Pasco 
School District must proceed in its 
wisdom in accordance with its perceived 
duty and without seeking prior approval 
from the district court. The Pasco 
School District should not flee until 
someone pursues it. It should not

37



litigate the "Phase II" issues unless 
and until challenged and forced to do 
so.

CONCLUSION
The judgment of the Court of

Appeals should be affirmed. If the
judgment is reversed, and it is held
that the Initiative is constitutional 
and permits school districts to maintain 
student transportation programs without 
a prior court order, the case should be 
remanded to the District Court with 
instructions that "Phase II" should not 
proceed, and that the Pasco School 
District's complaint should be 
dismissed.

HALL BAETZ 
LADD LEAVENS 
Davis, Wright, Todd, 

Riese & Jones 
Attorneys for Pasco 
Intervenors

38