Washington State v. Seattle School District No. 1 Brief Amici Curiae

    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 AMICI CURIAE 
League of Women Voters of Seattle, 

League of Women Voters of Washington, 
League of Women Voters of the United States

1411 Fourth Ave. Bldg. 
Room 610 
Seattle, W A  98101 
(206) 624-8901

PALMER SMITH  
LYNN D. W EIR  

Smith, Brucker, Winn 
& Ehlert

Counsel for League 
Amici Curiae



QUESTIONS PRESENTED
1. If a school district voluntarily 
adopts a program to reduce racial imbalance 
in its schools, does state action reversing 
such a program violate the Fourteenth 
Amendment?
2. When a school district voluntarily 
adopts such a program based on federal law 
strongly inviting, encouraging, and financ­
ing such action, is state action that would 
reverse such a program preempted, pursuant 
to clause two of Article VI of the Consti­
tution?
3. To encourage such voluntary action 
should this Court adopt guidelines (termed 
herein the "Seattle Rule") providing that, 
if a school district adopts such a program, 
following procedures and containing ele­
ments specified by this Court, such program 
may not be interfered with so as materially

i



• •
11

to increase racial imbalance, absent a 
compelling state interest, until the 
underlying conditions giving rise to such 
segregation or racial imbalance in the 
district's schools have been removed or 
have passed away?
4. Should such guidelines be:

(A) A determination by the school 
district that segregation or racial imbal­
ance exists in its schools;

(B) A determination by the dis­
trict that redressing such racial imbal­
ance will improve the quality of education;

(C) Notice to and an opportunity for 
the public to be heard;

(D) Broad community participation 
in and approval of the program;

(E) Consideration of alternative re­
medies and associated ameliorative actions;

(F) Preparation of a written plan;
(G) Public availability of the written

plan;



on(H) Opportunity for public comment 
the plan before its adoption;

(I) Inclusion in the plan of effec­
tive, substantive measures to reduce racial 
imbalance and the effects of racial dis­
crimination; 1

(J) Use by the school district of 
reasonable means for measuring progress 
towards the plan's objectives;

(K) Adoption of the plan?

Measures purely voluntary on the part of 
children and their parents already con­
demned by this Court as ineffective or 
constitutionally inappropriate to reach 
constitutional objectives (e . g . the freedom 
of choice” plan invalidated in Green v. 
County School Board, 391 U.S. 430 (1967 ) )
would be excluded or, if ineffective alone, 
w ou l d  be u s able only if coupled with 
effective measures.



iv
TABLE OF CONTENTS

Interest of Amici Curiae ..........  1
Statement of the C a s e ..............  4
I. The Historical Background . . .  4
II. Adoption of the School Dis­trict Programs; the Seattle

P l a n ..................  6
III. Housing and School Segrega­

tion ..........................  14
IV. Seattle's Prior Voluntary

Programs................  16
Summary of Argument................  17
A r g u m e n t ....................  19
I. State Action That Reverses a 

Voluntarily Adopted Program 
to Reduce or End Racial Im­
balance In a School District 
Violates the Fourteenth 
Amendment....................  24
A. The Court should strictly

scrutinize Initiative 350. . 24
B. In this case the de facto/

de jure distinction is ir­
relevant ..................  33

C. Use of strict scrutiny in this kind of case will 
further sound publicpolicy....................  36

Page



V

D. The relationship between 
education and the rule 
of Law reinforces the 
need to strictly scru­
tinize measures which 
would reverse remedial 
action....................  42

II. When a School District Volun­
tarily Adopts a Program to 
Desegregate Or Correct Racial 
Imbalance That Is Based On 
Federal Law Which Invites,
Encourages, and Finances 
Such Voluntary Local Action,
State Action Reversing Such

Page

a Program is Preempted ........  45
A. Congress may a c t ..........  46
B. Congress favors volun­

tary a c t i o n ..............  46
C. Federal law subordinates 

Initiative 350's "neigh­
borhood school policy" 
to the national policy 
favoring local voluntary 
action....................  48

III. This Court Should Also Encour­
age Voluntary Action By Adopt­
ing Guidelines (Termed Herein 
the "Seattle Rule") Providing 
That, If a School District 
Voluntarily Adopts a Program,
Following Procedures and Con­
taining Elements Specified By 
This Court, Such Program May 
Not Be Interfered With So 
As Materially To Increase



vi

Racial Imbalance, Absent a 
Compelling State Interest,
Until the Underlying Condi­
tions Giving Rise to Such 
Segregation or Racial Im­
balance In the District's 
Schools Have Been Removed or 
Have Passed A w a y ..............  52

Page

A. The Court has created 
a quandary for local 
school officials . .

B. Judicial burdens . . .
IV. The Proposed Seattle Rule
Conclusion

54
57
59
62

TABLES OF AUTHORITY 
Table of Cases

Cases
Austin Independent School District
v. United States, 429 U.S. 990
(1976 5 (mem 7) T .................... 33
Bolling v. Sharpe, 347 U.S. 497 (1954) 29
Brown v. Board of Education (Brown I),
347 U.S. 483 (1954) . . . . . . 5,6,25,26,27,28,29,30,40,41,

42,44,53,54,55,56
Brown v. Board of Education (Brown II),349 u'.S.'""294 (195TJ . . . . . . 26,53,56
Burton v. Wilmington Parkinq Author-ity, 365'U.S. 715"7T961) . . . . T~. 35



Page
Vll

Columbus Board of Education v.
Penick, 443 U.S. 449 ( 1 9 7 9 ) ........  32
Cooper v. Aaron, 358 U.S. 1 (1958) . . 27
Dayton Board of Education v.
Brinkman (Dayton I), 433 U.S. 405
(1977)............................. 34, 35
Dayton Board of Education v.
Brinkman (Dayton II), 443 U.S. 526 
(1979) ...............................  32
Diaz v. San Jose Unified School 
District, 612 F .2d 411 (9th Cir.
1979)   31
Goss v. Board of Education, 373
U.S. 683 ( 1 9 6 3 ) .........  27
Green v. County School Board of
New Kent County, 391 U.S. 430
(1968) . . . ................... iii, 27,28
Griffin v. School Board of Prince 
Edward County^ 377 U.S. 218 (1964) . . 27
In re Griffiths, 413 U.S. 717 (1973) . 25
Hines v. Davidowitz, 312 U.S. 52
(1941).......... .................... 51
Keyes v. School District No. 1,
Denver, Colorado, 413 U.S. 189
(1973) ......................  28,30,32,40
Loving v. Virginia, 388 U.S. 1 (1967) 25
Marbury v. Madison, 5 U.S. (1 Cranch)T37"Ti803 7 . . . ............... 52



viii

Milliken v* Bradley/ 418 U.S. 717
(1974)..............................  33
Personnel Administrator of Mass. v.
Feeney") 442 U.S. 256 (1979) 7 7 7 . . 32

Page

Police Department of Chicago v.
Mosley, 408 U.S. 92 (1972) . . . . . .  26
Regents of the University of Cali-
fornia v. Bakke, 438 U.S. 265
(1978) ...................  5,8,34,36,43,54
Reitman v. Mulkey, 387 U.S. 369
(1967)........ .................... 25, 34
Rice v. Santa Fe Elevator Corp.,
331 U.S. 218 (1947)   51
San Antonio Independent School
District v. Rodriguez, 411 U.S. 1
(1973)........  7 ................. 25,43
Seattle School District No. 1 v.
State of Washington, 633 F.2d 1338
(9th Cir. 1980)   31
Shapiro v. Thompson, 394 U.S. 618
(1969)    26
Shelley v. Kraemer, 334 U.S. 1 (1948). 35
Swann v. Charlotte-Mecklenburg Board 
of Education, 402 U.S. I (1971) 20,28,34,

53,54,58
Sweatt v. Painter, 339 U.S. 629 (1950) 42
United States v. Scotland Neck City Board of Education, 407 U.S. 484 
(1972).......... ................ 27



ix

United States v. Texas Education
Agency, 532 F . 2d 380 (5th Cir. 1976) . 33
Washington v. Davis, 426 U.S. 229
(1976) . : . . . ...................  3 2,33
Williamson v. Lee Optical Co., 348
U.S. 483 (1955)  ........  46
Yick Wo v. Hopkins, 118 U.S. 356 
(1886) . . . . . .  ..................  26

Constitutional Provisions
U.S. Const, art. Ill, § 1 ..........  3
U.S. Const, amend. IV (Equal
Protection Clause) ................  Passim

Declarations and Ordinances 
of the Continental Congress

Declaration of Independence,
1 Statutes at Large 1 ............4,5,31
Land Ordinance of 1785, 28 Journals 
of Continental Congress 375 (reprinted 
in H. Commager, ed., Documents of 
American History, 123-24 (9th ed.
1973))............................... 43

Northwest Ordinance of 1787, 32 
Journals of Continental Congress 334 
(reprinted in H. Commager, ed.,
Documents of American History, 131
(9th ed. 1973) ) ....................  43

Page



X

Statutes
Initiative Measure No. 350 (Chapter 
28A.26 RCW) ......................  Passim
RCW 28A . 57.322 ......................  37
20 U.S.C. §1701 (Equal Educational 
Opportunities Act of 1974)..........  48
20 U.S.C. § 1 7 1 6 .......................49
20 U.S.C. §3192 (Emergency School Aid 
Act of 1978)........................  47
20 U.S.C. §3193 ..................  47,48

Other Authorities
Administrative Office of the U.S.Courts, Federal Judicial Workload 
Statistics for the Twelve Month Per­
iod Ending March 31, 1981 (1981) I . . 57
Id., Workload Statistics for the
Decade^ of the 1970 *s (1980 )  ̂ 7 . . .  57
Id., Federal Judicial Workload
Statistics for the Twelve Month
Period Ended March 31, 1980 (1980) . . 57
Id., 1979 Annual Report of the
Director (1979) I . I  ̂ ] I 7 . . . .  57
Aristotle, The Nicomachean Ethics,
Book V (Oswald trans. - Bobbs-Merrill,
1962) ..............................  61
Black's Law Dictionary, (Rev. 4th
ed. 1 9 6 8 ) ........ .................. 38

Page



xi

C. Bowers, The Young Jefferson (Hough­
ton Mifflin^ 1945) 7  ̂ !! ] i 7 . . . .  4
C. Dickens, Oliver Twist ............  22

Page

Federal Rules of Evidence 201, Notes
of Advisory Committee on Proposed
R u l e s ..................................
W. Golding, The Lord of the Flies 41,42
H.R. Doc. No. 95-296, 95th Cong.,

2d Sess. (1978)..................  51
C. McCormick, Handbook of the Law of 
Evidence (19541  ̂  ̂  ̂  ̂  ̂  ̂  ̂ I  ̂ 7 . 14
48 Public Papers of the Presidents
448 (1970)........................... 50
Twelfth Annual Report of Horace 
Mann as Secretary of Mass. State 
Board of Educ. (1948) reprinted in 
H. Commager, ed., Documents of 
American History, 317-19 (9th ed.
1973) ............................... 44



INTEREST OF AMICI CURIAE
All parties have agreed to the filing 

of this brief.
The League of Women Voters of Seattle 

is a non-profit, non-partisan corporation, 
affiliated with and sharing the aims and 
principles of the League of Women Voters of 
Washington and the League of Women Voters 
of the United States, each of which is also 
a non-profit, non-partisan corporation.

The League of Women Voters of Seattle 
favors ending racial imbalance in the 
Seattle schools. It opposed efforts to 
prevent school desegregation in Seattle 
and the related attempt to recall members 
of the Seattle School Board. It helped 
develop and endorsed the Seattle Plan and 
opposed Initiative 350. Its members live 
in and pay taxes in Seattle. Many have 
children in the Seattle schools.

The League of Women Voters of Washing­
ton favors voluntary but effective action



2
to correct racial imbalance in the schools. 
It opposed Initiative 350. Some of its 
members live in, pay taxes in, and have 
children in the schools of Pasco, Seattle, 
and Tacoma.

The League of Women Voters of the 
United States ( "National League" herein) 
has about 114,000 members in over 1300 
state and local Leagues in each state, the 
District of Columbia, Puerto Rico, and the 
Virgin Islands. Since 1920, the National 
League has promoted political responsibil­
ity through informed, active citizen par­
ticipation in government. Among its 
guiding principles, it believes that no 
person or group should suffer legal, 
economic, or administrative discrimination.

In support of its position for equal 
access to education, the National League 
has long endorsed school desegregation, has 
supported federal efforts to assist school



3
desegregation plans, and has opposed re­
strictions on judicial and agency authority 
to fashion remedies.

At the state and local level, Leagues 
have promoted peaceful school desegregation 
in many ways, including: serving on advi­
sory committees; working with local govern­
ment, the media, and parents; promoting 
human relations activities; and when 
necessary, litigating. The League has 
promoted voluntary integration and has 
helped put into effect court-ordered plans 
to desegregate the schools.

All the League amici are concerned 
about the burdens now borne by the Federal 
judiciary, and want the "judicial power of 

v the United States"1 conserved, protected, 
and nurtured.

*U.S. Const, art. Ill, § 1



4
STATEMENT OF THE CASE 

We adopt the Statement of the Case 
in the Brief of Appellees but emphasize and 
add to it the following:
I. The Historical Background

The historical background is that of 
American slavery and its complex aftermath. 
Population changes have generally spread 
this aftermath among us. But we bear in 
mind that slavery early existed in the 
North as well as the South and that many of 
the serious problems which stem from it are 
now northern, not southern, problems. 
Slavery preceded the Constitution and 
compromised that document. Slavery compro­
mised many of those from whom that document

^On July 3, 1776, after debate, words 
critical of the King for his maintenance of 
the slave trade and for allegedly inciting 
slaves to rebel against their colonial 
owners were deleted from the draft Declar­
ation of Independence. C. Bowers, The 
Young Jefferson 151 (Houghton Mifflin, 
1945 ) .



5
sprang. The aftermath of slavery lingers 
among, compromises, and burdens many of us 
today.

In his separate opinion in Regents of 
the University of California v. Bakke, 438 
U.S. 265, 387-94 (1978), Mr. Justice
Marshall stated the relevant history. The 
amici adopt his statement.

One part of the aftermath of slavery 
has been pervasive, manifold segregation 
and discrimination, continuing well after a 
Declaration that "All [men] are created 
equal." In public school education, 
remedies for slavery's aftermath, begun 
with "all deliberate speed . . . , " have
been underway for less than 27 years. From 
1619, when slaves were first sold by a 
Dutch ship at Jamestown, Virginia, 335 
years passed until the decision in Brown v. 
Board of Education (Brown I), 347 U.S. 483
(1954).



6
Given the tenacity, pervasiveness 

and variety of the means used to sustain 
slavery and its aftermath, even after Brown
I, effective measures to erase slavery's 
aftermath will need equal tenacity, vari­
ety, and time in which to work.

Education is one such measure.
This case concerns three voluntary 

educational solutions to northern, urban 
school segregation, and deals with one part 
of the aftermath of slavery.
II. Adoption of the School District

Programs? the Seattle Plan
All of the appellee school districts 

voluntarily adopted programs to end segre­
gation and to redress racial imbalance. Of 
the plans, the Seattle Plan is the most 
elaborate. Its adoption triggered Initia­
tive 350. Since the proposed Seattle Rule 
is based on the Seattle Plan, we deal 
primarily with it.



7
A . The Seattle Plan
In developing its plan to desegregate 

its schools, or, as the Seattle School 
District puts it, to correct "racial 
imbalance," the district did the following: 

1. Racial imbalance determined 
For the 1977-78 school year the 

Seattle School District adopted a voluntary 
magnet school desegregation program (J.S. 
App. A-16). Certain of the intervenor 
plaintiffs in this case thereafter threat-

3ened the district with legal action. 
Seattle's Mayor and business and civic

I n t e r v e n o r  p l a i n t i f f ,  the N a t i o n a l  
Association for the Advancement of Colored 
People ("NAACP" herein), complained to 
the Office of Civil Rights of the United 
States Department of Health, Education and 
Welfare alleging intentional segregation of 
the district's schools. This complaint was 
settled on June 7-8, 1978 (FF 6-1, J.S. 
App. A-15). Other intervenor plaintiffs, 
joined by the NAACP, later threatened a 
desegregation lawsuit (FF 6.12, J.S. App. 
A-18; C.R. 409, page 6).



8
leaders encouraged the district to define 
racial isolation and to end it promptly 
(Pltf. Exh. 11). On June 8, 1977, the
Seattle School Board adopted Resolution 
1977-8 (Pltf. Exh. 9), defining "racial 
imbalance" as:

the situation that exists when the 
combined minority student enroll­
ment in a school exceeds the 
district-wide combined minority 
average by 20 percentage points, 
provided that the single minority 
enrollment (as defined by current 
federal categories) of no school 
will exceed 50 percent of the 
student body. . . .

This resolution acknowledged school racial 
imbalance and mandated its end by the 
1979-80 school year (Pltf. Exh. 9; FF 6.9, 
J.S. App. A-17),4

The Brief of A p p e l l a n t s  at 42 cites 
part of Hr. Justice Powell's opinion in 
R e g e nts _o f the University of California 
v. Bakke , 4" 3*8 U . S . 2 6 5 (19 7 8) , a p parently
for the proposition that the Seattle School 
D i strict must first secure a judicial 
determination before it may take official 
cognizance of the risk that it may have, at 
some time in the past, acted unlawfully in



9
2. Quality of education

Resolution 1977-8 also found that:
the best interests of the children 
of Seattle School District No. 1 
will be served by providing all 
school children with the opportunity 
for quality multiracial education 
• • • •
3• Public notice and hearings 

The school district gave the public 
notice and the extensive opportunity to be 
heard, as described below.

4. Broad community participation 
Seattle broadly supported voluntary 

school district adoption of mandatory 
school desegregation measures. As noted, 
the Mayor and the presidents of the Chamber 
of Commerce, Municipal League and Urban

(footnote 4 continued)
establishing d̂ e j_u segregation. This 
seems a remarkable position for the State's 
chief law enforcement officer to maintain, 
given the importance to all law enforcement 
of voluntary adherence to the laws. Bakke , 
of course, dealt with state action exclud­
ing a white person from medical school, a 
case quite different from this one*



10
League urged the school board to adopt a 
process to end racial isolation in the 
Seattle public schools (Pltf. Exh. 6, 7,
11 ) •

By Resolution 1977-9 (Pltf. Exh. 10) 
the board ordered extensive planning of 
desegregation measures (FF 6.9, J.S. App. 
A-17), including citizen input, and began 
to give massive publicity to such planning 
(Pltf. Exh. 6 at 2, 11).

Thirty public hearings were held 
throughout Seattle (Pltf. Exh. 7 at 14).

The district asked for plans and sug­
gestions. The Seattle Urban League submit­
ted a plan which the district in turn 
offered for public review (Pltf. Exh. 6 at 
14; Pltf. Exh. 7 at 11).

5. Consideration of alternative 
remedies and related actions

School district planners drafted four 
different plans. Each plan included some



11
mandatory student assignment. These plans, 
the Urban League plan, and the merits of 
voluntary and mandatory measures to end 
racial imbalance were thoroughly discussed 
at the many public hearings. Educational 
enrichment and certain voluntary options 
were included in the plans (Pltf. Exh. 6 at 
11? Pltf. Exh. 7 at 14-16).

6. Use of a written plan
The school district staff synthesized 

the five plans and the hearing results into 
a draft plan and presented it to the board 
in early December 1977 (Pltf. Exh. 6 at

I

11-12? J.S. App. A-17 to A-18).
7. Dissemination of the plan

The school district made the written
plan available to the public (Pltf. Exh. 6 
at 13) .

8. Further public comment
Later in December 1977 the school 

board held more hearings on the draft plan 
and made further material changes (id.).



12
9. I n c l u s i o n  of measures to 

reduce racial imbalance and 
racial discrimination

The plan promised to achieve, and has 
in fact achieved, elimination or reduction 
(FF 6.13, J.S. App. A-18) of racial im­
balance. Voluntary measures, theretofore 
tried alone and found ineffective (FF 6.5 
-6.8; J.S. App. A-16 to A-17), were aug­
mented and made effective by mandatory 
pupil assignment and busing. Voluntary 
enrichment from the earlier programs 
remained in the plan (FF 6.11; J.S. App. 
A-17 to A-18).

One-way burdening of particular racial 
groups, part of past voluntary practice 
(FF 6.6, 6.9, J.S. App. A-16), was avoided. 
Mandatory assignment was designed to affect

See Brief of A p p e l l e e  School D i s ­
tricts.



13
many students, but to place burdens equit­
ably (Pltf. Exh. 94) . Children were not 
selected by race. Instead, the district 
chose neighborhood groups of children in 
fact or potentially known to each other who 
could share the educational value of 
discussing common experiences (Pltf. Exh. 7 
at 16).

10. Means of measurement 
The program relied on, and has admin­

istratively associated with it, reasonable 
means of measuring progress. The district, 
like most school districts, regularly 
tests, measures, and administratively 
reviews. The district uses an annual 
school census (Pltf. Exhs. 78-88) and 
achievement testing together with other 
appropriate measures for appraising deseg­
regation and the other effects of its 

6programs. 6

6 T h i s C o u r t ’s ample "legislative fact" 
experience with school litigation enables



14
11. Adoption of the plan 

On December 14, 1977, the school
district, by Resolution 1977-28 (Pltf. Exh.
12), chos e the particular programs and
methods to end racial imbalance in its
schools. This resolution repeated the
definition of "racial imbalance" in earlier 
Resolution 1977-8. The Seattle Plan, which 
carried into effect the resolution, was 
adopted in March 1978 after still more 
hearings and changes (Pltf. Exh. 6 at 14; 
J . S. App. A-17).
III. Housing and School Segregation.

The District Court found that in 
each of the appellee districts there are 
residential areas in which minority races 
predominate (FF 3.3, J. S. App. A-7).

(footnote 6 continued)
it to take notice of the availability and 
use of such measures. See discussion, Fed. 
R . Evid . 201, Notes of Advisory Committee
on Proposed Rules; C. McCormick, Handbook 
of the Law of Evidence §325 (1954).



15
In Pasco proper, non-whites found 

it hard to find housing and located largely 
in East Pasco. In nearby Richland "rigid 
Federal housing regulations . . . excluded
blacks" (FF 4.1, J.S. App. A-9). East 
Pasco is "between 92 and 97 percent minor­
ity. . ." (FF 4.4, J.S. App. A-9). Resi­
dential segregation in Pasco resulted in 
racially imbalanced schools (FF 4.2, J.S. 
App. A-9).

In Tacoma housing patterns and other 
factors had concentrated racial minorities 
at certain of the district's schools (FF 
5.2, J.S. App. A-10).

In Seattle, the Court found that
[T]hese segregated housing patterns 
result in racially imbalanced 
schools when a neighborhood school 
assignment policy is implemented.
. . . (FF 6.14, J.S. App. A-18)

and that parents consider the quality and
location of neighborhood schools to be
important when deciding where to live
(FF 7.32, J.S. App. A-23).



16
IV. Seattle's Prior Voluntary Programs

In Seattle voluntary student assign­
ment measures advocated by intervenor 
defendant Citizens for Voluntary Integra­
tion Committee (CiVIC), among others, had 
been tried. Various such measures had been 
used since 1963 (FF 6.2, J.S. App. A-16) . 
During 1976-77 the school district had 
developed, publicized, and encouraged 
participation in a voluntary "magnet" 
school desegregation program (FF 6.5, J.S. 
App. A-16).

But the magnet program did not attract 
enough white students to achieve racial 
balance and most of the overall movement 
was by black students (FF 6.6, J.S. App. 
A-16 to A-17).

The District Court found that despite 
extensive voluntary, magnet, and mandatory 
middle-school, desegregation programs, 
racial imbalance increased between 1970



17
and 1978, and that the board had concluded 
that a voluntary plan without a mandatory 
"backup," could not effect acceptable 
racial balancing (FF 6.8, J.S. App. A-17).

SUMMARY OF ARGUMENT
Absent remedial measures, there is a 

mutually reinforcing relationship between 
housing segregation and school segregation.

Education must be provided free of 
suspect, state-imposed classifications
based upon race, whether blatantly or 
subtly phrased.

The Court should strictly scrutinize 
Initiative 350 to determine if its classi­
fication serves a compelling governmental 
interest.

When State action would reverse 
prior action to remedy segregation, the 
distinction between de facto and de jure 
segregation is not legally relevant.

A trial of the issue of whether segre­
gation is <3e facto or de jure is not a



18
necessary precondition for remedial action 
to undo school segregation.

The Congress and this Court have 
authoritatively invited and encouraged 
local, voluntary action to end segregation.

When a local school district takes 
such action to carry into effect constitu­
tional rights, subsequent state action 
impairing such local action is preempted.

Such preemption is, however, confined 
within a relatively narrow range defined by 
the Constitution and Federal law.

Once adopted, such voluntary school 
district action or policies may, of course, 
be changed, subject to strict scrutiny.

To aid in limiting future occasions 
for such strict scrutiny or determinations 
of preemption, this Court should give 
guidance, in the form of the "Seattle Rule" 
urged herein. This Court should thereafter



19
protect local voluntary action taken 
consistently with such guidelines.

Such guidelines will clarify neces­
sary procedures for voluntary action and 
will encourage such action.

Adoption of such guidelines will help 
to reduce steadily increasing judicial 
burdens and will conserve, protect, and 
nurture the judicial power of the United 
States.

ARGUMENT
The League amici support the briefs of 

the Appellees and the Seattle Intervenor 
Plaintiffs and the positions asserted 
therein. For the reasons of policy and law 
argued in this brief, this Court should 
also adopt the Seattle Rule urged here.

The key facts in this case are that: 
(a) the three school districts acted vol­
untarily? (b) each program addresses segre­
gation or racial imbalance which arises



20
from housing segregation; and (c) the State 
action being subjected to scrutiny is not 
direct State action originally taken to 
segregate the schools, as in the case of a 
dual school system. Instead the action is 
secondary state action, reversing a volun­
tarily-adopted desegregation remedy. Such 
state action, if upheld, will, however, 
resegregate the schools.

We first deal with the relationship 
between housing segregation and school 
segregation.

There is an intimate, symbiotic, and 
mutually-reinforcing relationship between 
residential segregation and school segre­
gation.

In Swann v. Charlotte-Mecklenburg 
Board of Education, 402 U.S. 1, 21 (1971), 
the Court said, in discussing the impor­
tance of choices and policies as to school
location:



21
Such a policy does more than simply 
influence the short-run composition 
of the student body of a new school. 
It may well promote segregated 
residential patterns which, when 
combined with "neighborhood zoning," 
further lock the school system into 
the mold of separation of the races. 
Upon a proper showing a district 
court may consider this in fashion­
ing a remedy.

The Court sees as clearly as do we 
this mutually-reinforcing relationship.

In their briefs, both the State and 
the United States virtually ignore this 
relationship.

The omission is significant.
In the Jurisdictional Statement 

the State twice used the term "racially 
neutral" in connection with both the 
neighborhood school assignment policy and 
Initiative 350 (J.S. at pp. 10, 17).

The brief for the United States of
America states at page 12:

The initiative does not split the 
citizenry into racially identifiable 
subgroups, and therefore does not 
classify persons according to 
race . . . .



22
Initiative Measure No. 350# of course, 

like all law, takes breath, life and 
meaning only in application to facts.

To ignore housing segregation when 
considering school segregation rests the 
argument in air and risks Mr. Bumble's 
comment in Oliver Twist that then "the law 
is a ass —  a idiot."

The initiative can be characterized as 
"racially neutral" only so long as the 
appellants ignore the District Court's 
findings as to housing segregation.

The Court understands this. But 
the appellants choose to use the term 
"racially neutral" in an effort to save the 
initiative.

The relationship between housing seg­
regation and school segregation, absent 
intervention by voluntary school district 
or compelled judicial action, is so clear



23
that it can be graphically and mathemati­
cally represented as follows:

neighborhood

Segregated
housing,
black

neighborhood

N

Neutral
r,mc* neighborhood *1“** 

School 
assignm ent 

policy

N

"Times

Mined,
neft' segregated  

neighborhood

Neutral
neighborhood £̂ als> 

School 

assignm ent 
policy

N

w
Neutral

7hies neighborhood 

School

Sguais
Segregated

School-

White
egregoted

housing f 
white

assignment

p o lic y IVA/

M N



24
Expressed mathematically, if term W 

has the quality of being "segregated/white" 
then the product of W and n (Wn) necessar­
ily has the quality of "segregated/white." 
Similarly, the product of the formula B x n 
(Bn) will have the quality of "segregated/ 
black." In contrast, Mn, the product of 
M x n, will lack the quality of segrega­
tion, white or black.

Use of a neighborhood assignment 
policy in a district with segregated 
housing will result in segregated schools.

We next address the questions pre­
sented .
I. State Action That Reverses a Vol­

untarily Adopted Program to Reduce Or 
End Racial Imbalance In a School 
District Violates the Fourteenth 
Amendment
A. The Court should strictly scrutin­

ize Initiative 350
The Court subjects to strict scrutiny 

state statutes or practices that explicitly



25
or implicitly disadvantage a "suspect 
class" or impinge upon a fundamental right 
protected by the Constitution. See San 
Antonio Independent School District v. 
Rodriguez, 411 U.S. 1, 17 (1973). Such
state action is upheld only if it furthers 
a compelling governmental purpose, Loving 
v. Virginia, 388 U.S. 1, 11 (1967), and,
even then, only if no less restrictive 
alternative is available, e .g ., In re 
Griffiths, 413 U.S. 717 (1973).

Under these standards, equal protec­
tion of the laws is denied not only when 
laws and programs invidiously discriminate 
on their face against racial, ancestral, or 
similarly disadvantaged groups, e.g ., Brown 
v. Board of Education of Topeka, 347 U.S. 
483 (1954), but when facia 1ly-neutra1
classifications mask invidious discrimina- 
tion, e .g ., Reitman v. Mulkey, 387 U.S. 369
(1967), and when facially-neutral laws or



26
policies are discriminatory in administra­
tion, e . g . , Yick Wo v. Hopkins, 118 U.S. 
356 (1886). Equal protection is likewise
denied when a classification implicates or 
penalizes, with no compelling governmental 
interest, the exercise of a fundamental 
right explicitly or implicitly guaranteed 
by the Constitution. Police Department of 
Chicago v. Mosley, 408 U.S. 92, 96 (1972); 
Shapiro v. Thompson, 394 U.S. 618 (1969).

In public elementary and secondary
education, the Court first applied these
standards to strike down state-mandated
school segregation in Brown I, declaring:

in the field of public education 
the doctrine of "separate but equal" 
has no place. Separate educational 
facilities are inherently unequal.

(347 U.S. at 495.) In Brown v. Board of
Education (Brown II), 349 U.S. 294, 301
(1955), the defendant districts were
ordered to desegregate their schools "with



27
all deliberate speed." Desegregation was 
long delayed. The Court then complained of 
"entirely too much deliberation and not 
enough speed," Griffin v. School Board of 
Prince Edward County, 377 U.S. 218, 229 
(1964)? and, later, in Green v. County 
School Board of New Kent County, 391 U.S. 
430, 439 (1968), demanded a plan "that 
promises realistically to work and promises 
realistically to work now."

The principles of Brown I have been 
used not only to strike down state-wide 
systems of one-race schools in the South, 
Cooper v. Aaron, 358 U.S. 1 (1958); United 
States v. Scotland Neck City Board of Edu­
cation, 407 U.S. 484 (1972)? but have been 
broadened to include other non—complying 
action, North or South, e.g.> Griffin, 
supra (closing public schools and private 
school grants to white children)? Goss v. 
Board of Education, 373 U.S. 683 (1963)



28
("minority to majority" student transfer 
plans); Green v. County School Board, supra 
(district-wide "freedom of choice" plans 
not sufficiently changing school racial 
composition).

While the Court has fashioned reme­
dies for purposeful discrimination, it 
has not yet permitted federal courts 
to cure de facto segregation. Keyes v. 
School District No. 1, Denver, Colo., 413
U.S. 189 (1973); Swann v. Charlotte-Meck-
lenburg Board of Education, supra, 402 U.S. 
1. The de jure/de facto distinction has 
troubled some members of the Court. 
See Keyes (Powell, J. , concurring). The 
distinction seems ambiguous after Brown I, 
where the Court stated at 494 that "[s e g ­
regation of white and colored children in 
public schools has a detrimental effect 
upon the colored children," the impact only



29
being greater when "it has the sanction of 

7the law."
Neither this Court, nor the Court of 

Appeals below, has yet held that a "neigh­
borhood school policy" of itself justifies 7

7A s amici we are seriously troubled by 
the case-by-case, legal quagmire that has 
developed since Brown I.

In Bolling v . S h a r p e , 347 U.S. 497, 
500 (1954), the Court said,

Segregation in public education is 
not reasonably related to any proper 
governmental objective . . . .  In 
v i e w  of our d e c i s i o n  that the 
Constitution prohibits the states 
from maintaining racially segregated 
public schools, it would be unthink­
able that the same C o n s t i t u t i o n  
would impose a lesser duty on the 
Federal Government.

The duty thus defined is that of the 
Federal Government. All Federal instru­
mentalities, including this Court, are 
i n h i b i t e d  from " m a i n t a i n i n g  r a cially  
segregated public schools.

If children similarly affected by seg­
regation (whatever the cause) apply to this 
Court to end such segregation, d e ju r e or 
de facto, and if this Court denies relief 
"on the basis that the segregation is merely 
de facto, is this Court itself maintaining 
segregated schools?" And we believe that



court intervention in the absence of pur­
poseful discrimination. Keyes v. School

30

(footnote 7 continued)
the p r o l i f e r a t i o n  and m a i n t e n a n c e  of
complicated evidentiary doctrines, presump­
tions, and d i s t i n c t i o n s  by this Court 
now more heavily burden plaintiffs who seek 
relief from ^e facto segregation than those 
who seek relief from tie jure segregation. 
As a result, the first group of plaintiffs 
may not now enjoy the equal protection of 
the law.

These are troubling questions.
Even more seriously, the piling up

of the ponderous procedural and evidentiary 
d e jure versus d e facto c o m p l e x i t i e s  
obscures a simple truth.

American children need to be taught 
to think straight about race.

The best way to teach a child to
think straight about race is to present him 
or her with the best evidence. The best 
evidence is available in the presence of 
other children like herself or himself in
many ways, but superficially different, 
e .g . , of a different race, creed, or color. 
In such c i r c u m s t a n c e s ,  guided by wise 
teachers, the child may learn by experienc­
ing this best evidence.

This is the powerful common sense 
of Brown I .

But now, white and black children, 
often living in segregated housing, do not 
have this best evidence readily available.



31
District No. 1, Denver, Colo., supra, 
(question expressly reserved); Seattle 
School District No. 1 v. State of Washing­
ton, 633 F . 2d 1338 (9th Cir. 1980); Diaz 
v. San Jose Unified School District, 612 
F. 2d 411 (9th Cir. 1979). The Court has 
not yet said that de jure segregation will 
result if a local school district applies a 
neighborhood school policy to segregated 
housing.8 In this area of law a majority

(footnote 7 concluded)
It might be argued, as an abstract 

proposition, that the Nation which declared 
that "All . . . are created equal" has a
special responsibility for such teaching. 
But the matter is, regrettably, not an 
abstract proposition. The darker side of 
our national history —  e »8» > slavery and 
its aftermath; many of the national poli­
cies toward Indians; Manifest Destiny and 
the war against Mexico; the use of ethnic 
quotas in the immigration laws; and the 
wartime relocation of Japanese—Americans 
requires such teaching.
N o n e t h e l e s s ,  in school d e s e g r e g a t i o n  
cases the Court has closely examined the 
effect of action, non-action, and desegre­
gation remedies by local officials. See



32
has not yet applied the legal principle 
that a person is presumed to intend the 
natural and foreseeable consequences of

Qhis or her voluntary acts. * 9

(footnote 8 concluded)
Keyes v. School Dist. No. l t Denver, Colo. , 
413 U.S. 189 (1973) (racially inspired
school board actions have impact beyond 
particular schools subject to such action); 
Columbus Bd. of Educ. v. Penick.. 443 U*S. 
449 (1979) (finding of d_je jure s e g r e ­
gation in 1954 imposes affirmative duty to 
disestablish dual school system and its 
effects) ; Dayton Bd. of Educ. v. Brinkman 
(Dayton II), 443 U.S. 526 (1979) (measure
of post-Brown conduct under unsatisfied 
duty to desegregate is the effectiveness, 
not purpose, of a c t i o n s  d e c r e a s i n g  or 
increasing segregation).
9Compare Washington v,-. Davis , 4 2 6 U.S.
229, 253 (1976) (Stevens, J., concurring)
(disparate impact may be most important 
e v idence of p u r p o s e f u l  d i s c r i m i n a t i o n
[f]or normally the actor is presumed to 

have intended the natural consequences of 
his deeds ) and Personnel Adm'r of Mass. 
v. Feeney, 442 U.S. 256 , 279 (1979 ) ('"Dis­
criminatory purpose' . . .  implies more 
than intent as v o l i t i o n  or intent as 
awareness of consequences") with Columbus 
Bd. of Educ. v. Penick , supra , at 464 
( actions having foreseeable and antici­
pated disparate impact are relevant evi­
dence to prove the ultimate fact, forbidden 
pur po se" ) .



33
Instead, the Court has said that 

local school districts may not be compelled 
to desegregate absent purposeful discrim­
ination. Milliken v. Bradley, 418 U.S. 717 
(1974). The Court has also remanded for 
reconsideration in light of Washington v. 
Davis, 426 U.S. 229 (1976), the decision in 
United States v. Texas Education Agency, 
532 F .2d 380 (5th Cir. 1976), where a local 
neighborhood school policy had been invali­
dated based on consequences foreseeable 
from its application to segregated housing. 
Austin Independent School Dist. v. United 
States , 429 U.S. 990 (1976) (mem.).

We turn next to this case.
B. In this case the de facto/de 

jure distinction is irrelevant
The state action under review in 

this case is Initiative 350. An initiative 
is state action and as such must be exer­
cised subject to constitutional restraints. 
Reitman v. Mulkey, 387 U.S. 369 (1967).



34
The target of state action here is, 

however, remedial action by other public 
entities of the State of Washington. 
Initiative 350, if applied, will undo 
"operative regulations" that these school 
districts have determined are needed to 
provide a more equal and better educational 
opportunity. See Dayton Board of Education 
v. Brinkman (Dayton I) , 433 U.S. 405, 413
(1977). Their goal was termed a "con­
stitutionally permissible" objective in 
Regents of the University of California v. 
Bakke, 438 U.S. 265, 312 (1978). See also
Swann v .Charlotte-Mecklenburg Board of 
Education, supra, 402 U.S. 1.

Initiative 350 is not direct State 
action taken to segregate the schools, 
but action taken to undo remedial action 
and would resegregate the schools.

The de facto/de jure segregation 
distinction has been used to distinguish



35
between segregation caused by official 
action and that which arises from private, 
non-state action. The Fourteenth Amendment 
inhibits discriminatory "state action," 
including action fostering private discri­
mination. Burton v. Wilmington Parking 
Authority, 365 U.S. 715 (1961)? Shelley v. 
Kraemer, 334 U.S. 1 (1948).

But when the Court scrutinizes state 
action that would reverse other clearly 
remedial state action, the de facto/de 
jure distinction is of little use. A 
distinction needed to guide courts in 
determining what is constitutionally 
forbidden in cases in which remedial action 
has not yet been taken, is not needed to 
analyze the quite different legal situation 
that arises where operative action in 
pursuit of constitutional objectives will 
be thwarted by reversing action. See 
Dayton I, supra.



36
If original state action to seg­

regate the schools directly would have
been suspect action, requiring strict/
scrutiny, then state action to reverse 
remedial action is itself sufficiently 
suspect as to need strict strutiny.^

The Court should lend its authority 
to maintain voluntarily adopted local gains 
against the aftermath of slavery, so that 
constitutional liberty will be increased 
and a perception of steadily increasing 
justice will be felt. We believe a soci­
ety, perceiving increasing justice, will 
tend to be more peaceful and law-abiding.

C. Use of strict scrutiny in this 
kind of case will further sound 
public policy

The Court should protect and encourage 
voluntary school district action to

Initial remedial action itself must, 
of course, withstand constitutional scru­
tiny. Regents of the University of Cali­
fornia v . Bakke , supra , 438 U.S. 265.



37
desegregate and correct racial imbalance 
for the following additional reasons.

First, school district action to 
voluntarily adopt a plan like the Seattle 
Plan, after the care and deliberation used 
by the school district, should carry great 
weight with a reviewing court. The process 
reflects and is in accord with due process 
of law.

Second, the board of directors of 
the Seattle School District adopted the 
Seattle Plan pursuant to an oath of office 
(J.S. App. A-18)

to support the Constitution of the 
United States and the State of 
Washington and to faithfully dis­
charge the duties of his [or her] 
office according to the best of his 
Cor her] ability. (R.C.W. 28A.57. 
322. )

Third, except for judges themselves 
public school officials, more than most 
other officials, have fiduciary character­
istics in relation to children.



38
The term "fiduciary" is very broad. 

It embraces "both technical fiduciary 
relations, and those informal relations 
which exist whenever one man trusts in and 
relies upon another. . . ." Black1 s Law
Dictionary 753 (Rev. 4th ed. 1968) ("fidu­
ciary relation"). This aspect of school 
board duties is evidenced by the care that 
American electorates generally use in 
elevating persons to school board office. 
Voluntary, deliberate action by persons 
such as these, subject to needed judicial 
guidance, is action that judges can trust.

Fourth, present-day political reali­
ties suggest that it is unlikely that use 
of busing as a remedy will be abused. Such 
action will usually be taken if it is the 
only available alternative.

If the review standard urged here is 
adopted, nothing will later forbid change 
in a plan thus adopted, provided that the



39
change will withstand strict scrutiny 
to determine whether it offends the consti­
tution. Even the most far-seeing plans, 
once adopted, may need revision to meet new 
needs. The fact that such change must 
itself meet constitutional requirements 
reinforces the desirability of adopting 
guidelines for voluntary action.

Fifth, adoption of a standard of 
strict scrutiny for such changes will not 
itself increase judicial business. If a 
standard of strict scrutiny as to later 
changes is adopted (a) the initial design 
and adoption of a plan will be done very 
carefully —  as was the Seattle Plan; (b) 
later measures of change will be carefully 
reviewed for their probable effect on 
constitutional rights; and (c) the annual 
school census will readily determine 
effects on racial imbalance. Moreover, 
where a violation of constitutional rights 
is now claimed, a person may already resort



40
to the Courts. On the other hand, if the 
appellants have their way, a burdensome, 
time-consuming, and expensive trial on the 
issue of d_e jure segregation will be 
needed, with its racially-polarizing effect 
of raking up past history in community 
after community.

Finally, the appellants argue for a 
procedure that will in fact make it more 
difficult to desegregate and then only to 
the barest extent required by the Consti­
tution.

In other words, before voluntary 
action rooted in decency, courage, common 
sense, and neighborly openness may be 
indulged, there must be a judicial determi­
nation which, since Brown I, has become 
somewhat like a finding of criminal guilt.11

1 1 S e e Keyes v. School D i s t r i c t  No. 1 , 
Denver, Colorado, 413 U.S. 189, 199, n.10
(1973) .



41
This is not healthy and decent poli­

tics .
Is it not paradoxical that, in the 

appellants' view, only an intentionally 
segregated school system can be desegre­
gated (by court order), while a school 
system wishing for educational purposes to 
correct racial imbalance can be lawfully 
forbidden to desegregate?

Slavery was maintained by pervasive 
fear. Its aftermath is associated with 
fear. It takes courage to make these
changes.

Concerned parents will doubtless 
continue to fear the new and will pressure 
school boards. Doubtless, members of 
this Court early in 1954 had reservations 
about what would lie before the country 
after the handing down of their opinion in
Brown I.

As Golding teaches us from his alle­
gory based on childhood in The Lord of_the



42
Flies, courage is not the absence of fear, 
but rather its rational, ordered control.

Who among us can honestly say that he 
or she is wholly free from such fears? 
This Court is, of course, familiar with 
this. Slowly, patiently, firmly, but 
inexorably, this Court has been contending 
with and exorcising such fears. The moral 
dimension in helping others to moderate and 
control their fear has been part of this 
Court's work. In this regard the debt of 
all of us to the Court is incalculable.

D. The relationship between education 
and the rule of Law reinforces the 
need to strictly scrutinize 
measures which would reverse 
remedial action

This Court has increasingly acknow­
ledged the importance of education and also 
the importance, in modern America, of 
diversity in student bodies. Sweatt v. 
Painter, 339 U.S. 629 (1950); Brown I,
supra ; San Antonio Independent School



43
District v. Rodriguez, supra, 411 U . S . 1;
Regents of the University of California v. 
Bakke, supra, 438 U.S. 265.

Fundamental provision for education 
was made even before the Constitution was 
ratified.^

Horace Mann argued persuasively that 
education, in the hands of capable

12 In 1785, under the Articles of Confed­
eration, the Congress ordained a rule of 
educational equality in establishing the 
foundations of the public land system, by 
providing "There shall be reserved the lot 
No. 16, of every township, for the mainte­
nance of public schools within the said 
township . . . Land Ordinance of 1785,
reprinted in H. Commager, ed., Documents of 
American History 123-24 (9th ed. 1973). 
The Northwest Ordinance of 1787, drafted by 
Thomas Jefferson, provided in part:

Art. 3. Religion, m o r a l i t y ,  and 
knowledge being necessary to good 
g o v e r n m e n t  and the h a p p i n e s s  of 
mankind, schools and the means of 
education shall forever be encour­
aged. • . . " (H. Commager, supra ,
at 131.)

That Ordinance also prohibited slavery in 
the Northwest Territory. Id., art. 6.



44
teachers, tends to make persons more 
capable of governing themselves, less in 
need of being governed, and less likely to 
become ungovernable, and that education, 
to be publicly provided in reasonable 
amounts, tends to make for a more produc­
tive, happy, less angry and therefore more

13law-abiding citizenry.
Public education since Brown I has 

changed, and is increasingly changing, the 
condition of many Americans. Many among us 
now do things which they could not do 
before Brown I. Since Brown I, education 
has helped to increase understanding and to 
reduce the tensions and anger that period­
ically threaten the rule of Law among us.

Twelfth Annual Report of Horace Mann 
as Secretary of the Massachusetts State 
Board of Education (1848), reprinted in H. 
Commager, supra , at 317-319.



45
Education directly supports both the 

values which the Constitution protects and 
the work of this Court. Educated persons, 
given clear and just laws, fairly adopted 
and properly applied, are more likely 
voluntarily to obey the law. If the laws 
are clear and persons are educated to 
understand the laws, citizen action and 
understanding is made easier and more 
powerful. Education thus specifically 
fosters the rule of Law, eases the burdens 
upon the judiciary, and conserves, pro­
tects, and nurtures the "judicial power of 
the United States."

The relationship between education and 
the rule of Law reinforces the need to use 
strict scrutiny in aid of educational mea­
sures to remedy the aftermath of slavery.
II. When a School District Voluntarily 

Adopts a Program to Desegregate Or 
Correct Racial Imbalance That Is Based 
On Federal Law Which Invites, Encour­
ages, and Finances Such Voluntary 
Local Action, State Action Reversing 
Such a Program is Preempted



46
A. Congress may act
Section 5 of the Fourteenth Amendment 

provides that "The Congress shall have 
the power to enforce, by appropriate 
legislation, the provisions of this arti­
cle."

In acting, Congress need not remedy an 
evil completely or all at once. "[R]eform 
may take one step at a time." Williamson 
v . Lee Optical C o ., 348 U.S. 483, 489
(1955). With respect to school desegrega­
tion, Congress favors voluntary local 
action. By so doing Congress has preempted 
state interference with local school board 
action desegregating district schools 
when such action furthers constitutional 
objectives.

B . Congress favors voluntary action
The Emergency School Aid Act of 1978,

Title 20 of the U.S. Code, states:



47
§ 3192 Findings and purpose
(a) The Congress finds that the 
process of eliminating or preventing 
minority group isolation and improv­
ing the quality of education for all 
children often involves the expendi­
ture of additional funds to which 
local educational agencies do not 
have access.
(b) The purpose of this subchapter 
is to provide financial assistance
•  •  •  •

(2) to encourage the voluntary 
elimination, reduction, or preven­
tion of minority group isolation 
in elementary and secondary 
schools with substantial propor­
tions of minority group students. 
[Emphasis supplied.]

§ 3193 Policy with respect to the
application of certain provisions of 
Federal law
(a) It is the policy of the United 
States that guidelines and criteria 
established pursuant to this sub­
chapter shall be applied uniformly 
in all regions of the United States 
in dealing with conditions of 
segregation by race in the schools 
of the local educational agencies of 
any State without regard to the 
origin or cause of such segrega­
tion.



48
(b) It is the policy of the United 
States that guidelines and criteria 
established pursuant to title VI of 
the Civil Rights Act of 1964 and 
section 2000d-5 of Title 42 shall be 
applied uniformly in all regions of 
the United States in dealing with 
conditions of segregation by race 
whether de jure or de facto in the 
schools of the local educational 
agencies of any State without regard 
to the origin or cause of such 
segregation. [Emphasis supplied.]

(Emphasis supplied.)
The foregoing states the national 

policy favoring voluntary action to end 
segregation, whatever the cause.

C . Federal law subordinates Initia­
tive 350's "neighborhood school 
policy" to the national policy 
favoring local voluntary action

The State quotes section 202 of the 
Equal Educational Opportunities Act of 
1974, 20 U.S.C. 1701, stating that it is
the policy of the United States that "the 
neighborhood is the appropriate basis for 
determining public school assignments." 
Brief of Appellants at 35.



49
The State does not quote fully.
Section 217 of the Act, 20 U.S.C.

§1716, also provides:
Voluntary adoption of remedies.
Nothing in this subchapter prohibits 
an educational agency from propos­
ing, adopting, requiring, or imple­
menting any plan of desegregation, 
otherwise lawful, that is at var­
iance with the standards set out in 
this subchapter nor shall any court, 
department, or agency of the United 
States be prohibited from approving 
implementation of a plan which goes 
beyond what can be required under 
this subchapter, if such plan is 
voluntarily proposed by the appro­
priate educational agency. [Empha­
sis supplied.]

The neighborhood school policy has 
thus been expressly subordinated to the 
voluntary plans of Pasco, Seattle, and 
Tacoma.

Presidential messages have also 
favored voluntary action.

The President's Message to the Con­
gress proposing the Emergency School Aid
Act of 1970 stated:



50
To the Congress of the United States:
Successfully desegregating the 
nation's schools requires more than 
the enforcement of laws. It also 
requires an investment of money. 
(48 Pub. Papers 448.2.) [Emphasis 
supplied.]

He proposed three aid categories, one
being

Aid to districts that wish to 
undertake voluntary efforts to 
eliminate reduce or prevent de facto 
racial isolation, with such aid 
specifically targeted for those 
purposes. (Id.)

The President further noted that:
In most of our large cities, and in 
many smaller communities, housing 
patterns have produced racial 
separation in the schools which in 
turn has had an adverse effect on 
education of the children. It is in 
the national interest that where 
such isolation exists, even though 
it is not of a kind that violates 
the law, we should do our best to 
assist local school districts 
attempting to overcome its effects. 
(Id.) [Emphasis supplied.]

In 1978 the President recommended 
amendments, later adopted, to the Elemen­
tary and Secondary Education Act to



51
"encourage voluntary local initiatives to 
overcome the adverse effects of minority 
group isolation. . . . "  H .R . Doc. No. 
95-296, 95th Cong., 2d Sess. 4 (1978) 
[Emphasis supplied].

Initiative 350 is a state policy 
that "may produce a result inconsistent 
with the objective of the federal statute." 
Rice v, Santa Fe Elevator Corp., 331 U.S. 
218, 230 (1947). Since mandatory student
assignment is essential when housing is 
segregated, Initiative 350 is "an obstacle 
to the accomplishment and execution of the 
full purposes and objectives of Congress." 
Hines v. Davidowitz, 312 U.S. 52, 67
(1941) .

This preemption of state action is, 
however, narrow. It does not free local 
school districts to do whatever they would 
like, without legitimate and appropriate 
State supervision. As to all areas of



52
State supervisory action which do not 
offend preemptive federal law and the 
Constitution, the State may continue to 
act.

Preemption having occurred, there is, 
of course, a risk that later federal action 
may seek to undo what has been done. But 
federal action to impair the substance of 
constitutional rights, once defined, must 
itself be subject to strict scrutiny, 
otherwise constitutional protections will 
be meaningless. Marbury v. Madison, 5 
U.S. (1 Cranch) 137 (1803).
Ill • This Court Should Also Encourage 

Voluntary Action By Adopting Guide­
lines (Termed Herein the "Seattle 
Rule") Providing That, If a School 
District Voluntarily Adopts a Pro­
gram, Following Procedures and 
Containing Elements Specified by This 
Court, Such Program May Not Be 
Interfered With So As Materially To 
Increase Racial Imbalance, Absent a 
Compelling State Interest, Until the 
Underlying Conditions Giving Rise to 
Such Segregation or Racial Imbalance 
In the District's Schools Have Been Removed or Have Passed Away



53
I n Swann v. Charlotte-Mecklenburg 

Board of Education, supra, 402 U.S. at 6, 
in reviewing a specific District Court 
plan, this Court adopted guidelines based 
on federal judicial experience in grappling 
"with the flinty, intractable realities" of 
putting Brown I and Brown II into effect.

In this case the Court also reviews 
specific plans which are, however, differ­
ent from the plan reviewed in Swann in two 
respects. First, they were voluntarily 
adopted. Second, they have been effective 
in reducing racial imbalance.

The Seattle School District, as- 
its litigation and election record amply 
indicates, has experienced its own "flinty, 
intractable realities."

As in Swann, the Court should issue 
guidelines in exercise of its equity power 
in this case for two main reasons.



54
First, difficulty in applying the 

Court's decisions has created a quandary 
for local officials obliged to take edu­
cationally responsible and lawful action.

Second, the lack of guidelines for 
voluntary action needlessly burdens the 
judiciary.

A. The Court has created a quandary 
for local school officials

In Brown I the Court stressed the 
importance of education. Since then 
matters have moved forward.

I n Regents of the University of
California v. Bakke, supra, 438 U .S. at
311-12 (1978), Mr. Justice Powell noted
that one of the goals

asserted by petitioner is the 
attainment of a diverse student 
body. This clearly is a constitu­
tionally permissible goal .



55
If this goal is important at the 

graduate and undergraduate academic level, 
where attendance is not mandatory, it is 
even more important in the primary and 
secondary schools. The minds of such 
pupils are not fully formed. Such children 
may then be closer than they will later be 
to unwitting sources of prejudice. By law 
such children must be at school.

Segregation of children from each 
other by race is itself wrong, whatever 
the cause -- segregation by law, as said in 
Brown I, merely adding to the offense. How 
deeply, therefore, does it offend the sense 
of duty of school board members, and the 
sense of duty and the sense of professional 
responsibility of teachers, to compel them 
to place, maintain, and teach students in 
schools that are segregated —  for whatever
reason?



56
In Brown II# 349 U.S. at 298, the

Court incorporated findings of Brown I that
"racial discrimination in public education
is unconstitutional" and said:

All provisions of federal, state, or 
local law requiring or permitting 
such discrimination must yield to 
this principle. [Emphasis supplied.]

The Court continued, at 299:
Full implementation of these consti­
tutional principles may require 
solution of varied local school 
problems. School authorities have 
the primary responsibility for 
elucidating, assessing, and solving 
these problems . . . .  [Emphasis 
supplied.]

Given such language, many local 
school board members have felt that they 
must attack a condition of segregation not 
yet judicially-determined as to cause, but 
bearing similarities to conditions else­
where held to have been purposeful.



57
But in school systems with no judici­

ally-determined record of de jure segrega­
tion there is difficulty in interpreting 
and applying this Court's pronouncements.

The Court has not spoken clearly.
We urge the Court to adopt a clear 

rule of decision for cases involving urban 
housing segregation and voluntary action 
that will define the role of, protect, and 
encourage voluntary local school district 
action and will promote equal justice under 
law.

B. Judicial burdens
The judiciary needs relief.
Federal judicial business is relent­

lessly increasing.^ State court busi­
ness shows similar increases.

1 / A d m i n i s t r a t i v e  Office of the U.S. 
Courts, Federal Judicial Workload Statls- 
tics for the Twelve Month Period Ended 
M l 7 c h ~ J I 7 ~ l 981 (1981); id., W o r k l o a d
S t a t i s t i c s  for the Decade of the 1970's 
( 19 8 0) ; id_. , Federal Judicial Workload 
S t a t i s t i c s  for the Twelve Month Period
Ended_March 31, 1980 ( 1980 ); 1 d . , 1979
Annual R e p o r t  of the D i re c t o r  (1979).



58
Since 1960 civil rights cases have 

steadily increased within the judicial 
workload. Among civil rights cases the
school desegregation cases are particularly

, . • 1 5complex, and time-consuming.
Analysis also indicates that there is 

no single grand stroke which can help. 
Burdens added incrementally must be reduced 
incrementally. Marginal effects on parts 
of the total case-load are important. As to 
the school desegregation part of this 
work-load we urge:

First, strict scrutiny of statutes and 
administrative procedures interfering with 
remedial action will reduce the need for

15 In Swann v. Chariotte-Mecklenburg Board 
of Education, supra, 402 U.S. at 14, the 
Chief Justice, in noti n g  the need for 
"guidelines," commented in footnote 5:

The necessity for this is suggested 
by the s i t u a t i o n  in the F i f t h  
Circuit where 166 appeals in school 
d e s e g r e g a t i o n  cases were heard 
b e t w e e n  D e c e m b e r  2, 1969, and
September 24, 1970.



59
long, complex trials on the d_e jure - 
de facto issue.

Second, if federal preemption protects 
local voluntary action, fewer court pro­
ceedings will be needed.

Third, clear guidelines shielding 
voluntary action will give rise to fewer 
cases.

With clear guidelines local school 
district counsel everywhere can advise 
school board members. School board members 
seeking election can cite a reinforced 
national policy favoring local voluntary 
action. Citizen action will be made more 
effective.
IV. The Proposed Seattle Rule

The guidelines suggested are set out
in the fourth Question Presented and
are discussed in our Statement of the
Case •

As we have noted, most of what was
done in Seattle is familiar, careful due



60
process of law. Seattle's experience 
indicates that school board members can 
stand for election on such a program and 
win. The Seattle Rule is good, decent 
politics.

We do, however, want to say a word 
about "busing."

The duration of remedial measures 
should be measured by the duration of the 
underlying conditions to which such mea­
sures are addressed. When the underlying 
conditions have changed, the remedial 
measures can be abandoned.

But busing, as a remedy, will not be 
needlessly prolonged. Districts have 
strong financial incentives not to over-use 
this remedy.

A Seattle Rule will help the Court cut 
its way out of the current tangle of the

^ T h e  p o w e r  of the c o u r t s  to o r d e r  
remedies for d_e jure segregation would, of 
course, not be impeded by the adoption of 
guidelines for voluntary action.



61
law and will clearly summon school dis­
tricts and citizens to act voluntarily but 
effectively.

In protecting these appellee school 
districts this Court will encourage all 
school districts.

In closing, we suggest that the grand 
fallacy of the appellants' approach is to 
try, by ignoring the relationship between 
housing segregation and school segregation, 
to pit against each other two fundamen­
tal principles of justice which must be 
harmonized. The first such principle is 
that those who stand in equal circumstances 
before the law must be treated equally. 
The second principle is that justice must 
be "distributive" and must, in order to
reach "equality," compensate for preexist-

1 7ing inequality and wrong. These

1 7 A r i s t o t l e ,  The N l c h o m a c h e a n  Ethics, 
Book V (The Oswald Translation - Bobbs-Mer- 
rill, 1962).



62
principles antedate written law. They are
probably inherent in, and imprinted on, the

18structure of the human mind.
In this case the distributive prin­

ciple requires that, where housing is 
segregated, compensatory remedial action 
should be taken so that children who grow 
up in such segregated housing will have a 
chance to learn to think straight about 
race.

CONCLUSION
At Gettysburg, at Little Round Top, 

the Wheatfield, the Peach Orchard, and 
other quarters of that bloody field, 
sincere opponents contested the ground in 
terrible violence.

1 8 That these principles probably ante­
date all written law and are inherent in 
the structure of the mind can be ascer­
tained by observing how frequently chil­
dren, even very small children, regularly 
invoke them in dealing with their parental 
"law-givers . "



63
In contrast, in Pasco, Seattle,

and Tacoma, the fighting has been mostly by
lawsuits and in elections. Because of

19the rule of Law, the fighting has been 
bloodless. In Seattle, at least nine law 
suits, a recall campaign, the Initiative 
350 campaign, and several school board 
elections have marked the contest.

It is now time for the end. Segre­
gated schools in these districts, whatever 
the cause, should be ended -- forever.

1 Q The Fourteenth Amendment, part of the 
rule of Law in this country, is a child of 
war. At the Wheatfield the 1st Minnesota 
sustained 82% casualties and there, after 
six attacks and counter-attacks, the South 
left 500 of its dead. At the Peach 
Orchard, having four times asked permission 
of General Longstreet to take Little Round 
Top above the Union Left, Major General 
John B. Hood was wounded and borne from the 
field.

A long run promise of education is the 
curbing of some of the roots of violence 
and the sustaining of the rule of Law. In 
f o s t e r i n g  e d u c a t i o n  the Court fosters 
its own work.



64
As we said at the outset, we deal with 

the aftermath of slavery as it affects 
children.

"'Woe unto the world because of 
offenses; for it must needs be that 
offenses come.'"

Lincoln enjoined us to have malice toward 
none, charity for all, and to bind up 
wounds.

Those in local school districts whose 
daily duty it is to bind up the wounds 
still being inflicted on children by the 
aftermath of slavery, should be given 
the protection urged in this brief.

Clear guidance should be given to 
local school officials so that they may do 
what they believe to be both educationally 
sound and lawful.

Strong citizen action should be 
encouraged.



65
We urge the Court not only to affirm 

the judgment of the Ninth Circuit, but to 
adopt guidelines (the Seattle Rule) for 
future cases involving school district 
voluntary action.

Dated: January 25, 1982
Respectfully submitted,
SMITH, BRUCKER, WINN & EHLERT
By: PALMER SMITH

LYNN D. WEIR
Counsel for the League amici