Crawford v. Los Angeles Board of Education Brief Amici Curiae

    No. 81-38

In T he

Bupmm ( t a r t  o f thr l i n t r b  i t a t e
October Term , 1981

Mary Ellen Crawford, et a t ,

Petitioners,v.

Board of Education of the City of Los A ngeles.

On Writ of Certiorari to the 
California Court of Appeal, Second Appellate District

BRIEF FOR THE LAW YERS’ COMMITTEE FOR CIVIL 
RIGHTS UNDER LAW, THE SAN FRANCISCO 

LAW YERS’ COMMITTEE FOR URBAN AFFAIRS  
AND THE M EXICAN AMERICAN LEGAL DEFENSE  

AND EDUCATIONAL FUND AS AMICI CURIAE,
IN SUPPORT OF PETITIONERS

V ilma S. Martinez 
Peter Roos 

28 Geary Street 
San Francisco, California 

94108
(415) 981-5800

W illiam L. Robinson 
Norman J. Chachkin  

733 15th Street, N.W., 
Suite 520

Washington, D.C. 20005 
(202) 628-6700

Louis E. Wolcher *
Abigail S. Kelly 

Pettit & Martin 
600 Montgomery Street 
San Francisco, California 94111 
(415) 434-4000 

* Attorney of Record
Mark N. Aaronson 
Eva Jefferson Paterson 

625 Market Street, Suite 1208 
San Francisco, California 94105 
(415) 543-9444

Attorneys for Amici Curiae

W ils on  - Epes Pr in t in g  C o ., !n c . - 7 8 9 -0 0 9 6  - W a s h in g t o n  D .C . 20001



TABLE OF CONTENTS
Page

INTEREST OF AMICI CURIAE .................... ............... 1

SUMMARY OF ARGUMENT .................................    2

ARGUMENT ........................................................   5

TABLE OF AU TH O RITIES............................................  iii

I. PROPOSITION 1 MUST BE JUDGED IN THE 
HISTORICAL CONTEXT OF LONGSTAND­
ING OFFICIAL SUPPORT FOR SEGREGA­
TION AND DISCRIMINATION IN CALIFOR­
NIA, WHICH REINFORCES THE OTHER 
EVIDENCE SHOWING THAT ITS PASSAGE 
W AS MOTIVATED BY RACIAL ANIMUS 
AND AN INTENT TO DISCRIMINATE____  5

II. WHILE THERE IS ENOUGH EVIDENCE IN 
THE EXISTING RECORD TO SHOW PROPO­
SITION 1 IS UNCONSTITUTIONAL, THERE 
IS NOT ENOUGH EVIDENCE TO SUSTAIN  
ITS CONSTITUTIONALITY  .............. ..........  12

A. The Constitutionality of Proposition 1 Can­
not be Determined Without an Examination
of Its Impact on Minority Students_______  14

B. The Constitutionality of Proposition 1 Can­
not be Determined Without an Examination
of Its Historical Background______________  16

III. PROPOSITION 1 IS UNCONSTITUTIONAL 
BECAUSE IT DENIES THE POWER OF 
STATE COURTS OF GENERAL JURISDIC­
TION TO GIVE REMEDIES WHICH ARE 
NECESSARY TO REDRESS C E R T A I N  
FOURTEENTH AMENDMENT VIOLATIONS,
IN CASES WHERE CONGRESS M AY AT­
TEMPT TO CURTAIL LOWER FEDERAL 
COURT JURISDICTION .... ....... ...........................  18



11

A. As Courts of General Jurisdiction, State
Courts May Not Be Limited in Their Ability 
to Impose Necessary Remedies for Federal 
Constitutional Violations .....- ...........................  19

B. In Violation of Due Process of Law, Propo­
sition 1 Unconstitutionally Links State Court 
Jurisdiction to Give Necessary Remedies to 
Limits on Federal Court Jurisdiction .... .-  22

IV. IN DECIDING THAT THE SEGREGATION 
IN THE LOS ANGELES PUBLIC SCHOOL 
SYSTEM DOES NOT VIOLATE THE FOUR­
TEENTH AMENDMENT AS A MATTER OF 
LAW, THE COURT OF APPEAL ERRONE­
OUSLY REVERSED THE TRIAL COURT 
W HEN IT OUGHT TO HAVE OPENED THE 
RECORD FOR FURTHER FACTUAL IN­

TABLE OF CONTENTS— Continued
Page

QUIRY ........................................................................... 26

CONCLUSION...................... .......... -...... - .............................  30



Ill

TABLE OF AUTHORITIES
Cases Page

Battaglia v. General Motors Corp., 169 F.2d 254
(2d Cir.), cert, denied, 335 U.S. 887 (1948)—  22

Board of Educ. of Long Beach v. Jack M., 19 Cal.
2d 691, 566 P.2d 602, 139 Cal. Rptr. 700 (1977).. 28n

Columbus Bd. of Educ. v. Penick, 443 U.S. 449
(1979) ........ ................... ............-......................- ....7-8 ,28,29

Crawford v. Board of Educ. (Crawford I) , 17 
Cal. 3d 280, 551 P.2d 28, 130 Cal. Rptr. 724
(1976) ................................................ 1 4 ,18n, 26, 27n, 28, 29

Crawford v. Board of Educ. (Crawford II), 113
Cal. App. 3d 633, 170 Cal. Rptr. 495 (1980).-. 13,14,

16, 23
Dayton Bd. of Educ. v. Brinkman, 443 U.S, 526

(1979) .......................................................... -----............ 8
General Oil Co. v. Crain, 209 U.S. 211 (1908).....  21
Guam v. Olsen, 431 U.S. 195 (1977)---------- ------ - -  20
Johnson v. Richmond Unified School Dist., No.

112094 (Super. Ct., Contra Costa County, April
3, 1972) ............................ .......................................... Hn, 18n

Johnson v. Robison, 415 U.S. 361 (1974)...............  20
Johnson v. San Francisco Unified School Dist., 500

F.2d 349 (9th Cir. 1974) ......................................... 27
Katzenbach v. Morgan, 384 U.S. 641 (1966) .........  25n
Keyes v. School Dist. No. 1, Denver, 413 U.S. 189

(1973) .........................................-...... - ....... - -...... -.......  29
Lauf v. E.G. Shinner & Co., 303 U.S. 323 (1938).... 22
Los Angeles Investment Co. v. Gary, 181 Cal. 680,

186 P. 596 (1919) ......................................... -............ 6, 9n
Maine v. Thiboutot, 448 U.S. 1 (1980) .... ......... . 21,22
Norris v. Alabama, 294 U.S. 587 (1935) --------------  12
North Carolina State Bd. of Educ. v. Swann, 402

U.S. 43 (1971) ......... ....... -................ ------- -------------  24
Palm ore v. United States, 441 U.S. 389 (1973)—. 20n
Personnel Administrator v. Feeney, 432 U.S. 256

(1979) ............................................ ...............-...... -.......  13
Perez v. Sharp, 32 Cal. 2d 711,198 P.2d 17 (1947).. 10n
Piper v. Big Pine School Dist., 193 Cal. 664, 226

P. 926 (1924) ............ ........... ------------------------------9n, lOn
Reitman v. Mulkey, 387 U.S. 369 (1967) .............. -  5, 6, 7,

lln , 16



iv

San Francisco Unified School Dist. v. Johnson, 8 
Cal. 3d 937, 479 P.2d 669, 92 Cal. Rptr. 309, 
cert, denied sub nom. Fehlhaber v. San Fran­
cisco Unified School Dist., 401 U.S. 1012 (1971) ..lln , 14

TABLE OF AUTHORITIES— Continued
Page

Santa Barbara School Dist. v. Superior Ct., 13 
Cal. 3d 315, 530 P.2d 605, 18 Cal. Rptr. 637
(1975) .........- ........ ................................. -____________Hn, 17

Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850)........ 20n
Soria v. Oxnard School Dist. Bd. of Trustees, 386

F. Supp. 539 (C.D. Cal. 1974) __________________ lOn
Spangler v. Pasadena City School Dist., 311 F.

Supp. 501 (C.D. Cal. 1970) _______ .___ _________ lOn
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402

U.S. 1 (1971) ____ __ ________________ _______15n, 24, 29
Sullivan v. Little Hunting Park, Inc., 396 U.S. 229

(1969) ................................. ................... ......... - .........  21
Tape v. Hurley, 66 Cal. 473, 6 P. 129 (1885)...... . 9n
Testa v. Katt, 330 U.S. 386 (1947) _______________  21
Time, Inc. v. Firestone, 424 U.S. 448 (1976)------  12
Tinsley v. Palo Alto Unified School Dist., No.

206010 (Super. Ct., San Mateo County, July 10,
1980), quoted in Board of Educ. v. Superior Ct.,
448 U.S. 1343 (1980) (Rehnquist, Circuit Jus­
tice) ------------------ ------------------------------------------ -------  23

Truax v. Corrigan, 257 U.S. 312 (1921)------ --------  22
United States v. Klein, 80' U.S. (13 Wall.) 128

(1872) ................................ ..................... - ............-......  20
United States v. United States Gypsum Co., 333

U.S. 364 (1948) _____________________________- -  28n
Village of Arlington Heights v. Metropolitan Hous­

ing Dev. Corp., 429 U.S. 252 (1977) .............5,13, 14,18
Ward v. Flood, 48 Call. 36 (1874) ---- -------------------- 9n
Washington v. Davis, 426 U.S. 229 (1976) ----------  13
W.E.B. DuBois Clubs v. Clark, 389 U.S. 309

(1967) _______________ ____________ ______ -........ - .  12
Wong Him v. Callahan, 119 F. 38 (C.C.N.D. Cal.

1902) __ ______ _______________________ __________  9n
Wright v. Council of City of Emporia, 407 U.S. 451

(1972) -  .......... ....................... ..... ....................... ~~ 24



V

Wysinger v. Crookshank, 82 Cal. 588, 23 P. 54
(1890) ....................... -....................................-.............. 9n

Yakus v. United States, 321 U.S. 414 (1944)........ 20
Yick Wo v. Hopkins, 118 U.S. 356 (1886) ..... —. 9n
Zenith Radio Corp. v. Hazeltine Research, Inc., 395

U.S. 100 (1969) ............ ......... ......... - ..............- .....  28n

Constitutions and Statutes
U.S. Const., art. Ill, § 1 ......... ................. - .....—  20n
Cal. Const., art. I, § 7 (a) ......- .............. - -.......... 2n
Ca . Const., art. II, § 106; art. IV, § 116 (1849).. 8n 
Norris-LaGuardia Act, 29 U.S.C. §§ 101-15 (1976).. 21
Cal. Educ. Code § 35350 (1978) (West) ----------- 17n
Cal . Educ. Code §35351 (1978) (West) ........  17n
Cal. Educ. Code § 1009.5 (1970) ______    17n
Cal. Educ. Code § 1009.6 (1972) .............. ............-  17n
Act of April 7, 1880, 1880 Cal. Stat. Amend, at 47.. 9n
Cal. Pol. Code §§ 1662, 1669 (1872) .......... ..........  8n
Act of April 4, 1870, 1867-70 Cal. Stats., ch. 556,

§ 56, at 838-39 --------------- ------------------- ------------- -  8n
Act of March 24, 1866, 1865-66 Cal. Stats., ch. 342,

§§ 57-59, at 398------------------ --------------- ------- --------  8n
Act of March 22, 1864, 1863-64 Cal. Stats., ch. 209,

§ 13, at 2 1 3 ______ ___ ------- ---------------------------------  8n
Act of April 6, 1863, 1863 Cal. Stats., ch. 159, § 68,

at 210 ________________- ....... ------- ------------------ - .... 8n
1850 Cal. Stats., ch. 99, § 14, at 230 -------- ---- --------- 8n
1850 Cal. Stats., ch. 140, at 424 --------------------- -----  8n
1850 Cal. Stats., ch. 142, § 306, at 455  ................-  8n

Legislative Materials
H.R. Rep. No. 669, 72d Cong., 1st Sess. (1932).... 22
S. 158, 97th Cong., 1st Sess. (1981) --------   26n
S. 481, 97th Cong., 1st Sess. (1981) .......................   26n
S. 1647, 97th Cong., 1st Sess. (1981)........................  25
S. 1743, 97th Cong., 1st Sess. (1981) -------   25
S. 1760, 97th Cong., 1st Sess. (1981)------------ ------ -  25
H.R. 72, 97th Cong., 1st Sess. (1981) .... ................  26n
H.R. 865, 97th Cong., 1st Sess, (1981) .......... - ......  26n

TABLE OF AUTHORITIES— Continued
Page



VI

H.R. 867, 97th Cong., 1st Sess. (1981) ............ -..... 26n
1867-68 Cal. State Jo u rn al ...................... .......----- 9n

Other Authorities
P. Bator, P. Mish kin , D. Shapiro & H. Wechs- 

ler, Hart & W echsler’s The F ederal Courts
and the Federal System (2d ed. 1978) ............  19

Chicago Defender, April 27, 1957 .................... -.......  44x1
Comment, Proposition 1 and Federal Protection of 

State Constitutional Rights, 75 Nw. U.L. Rev.
685 (1980) ..... —------- --------- ---------- ------.....--------H n, 4,4

Eisenberg, Congressional Authority to Restrict 
Lower Federal Court Jurisdiction, 83 Y ale L.J.
498 (1974)  ....................................................... ----- 20n

Goldberg, The Administration’s Anti-Busing Pro­
posals—Politics Makes Bad Law, 67 Nw. U.L.
Rev. 319 (1972) .... ............... -----................ ...........  24

G. Gunther, Cases and Materials on Constitu­
tional Law  (9th ed. 1975) ------ ------------- -----— 24

Hart, The Power of Congress to Limit the Juris­
diction of Federal Courts: An Exercise in Dia­
lectic, 66 Harv. L. Rev. 1362 (1953) ..................  21,26

I. Hendrick, The Education of Non-W hites in
California 1849-1970 (1977) ..... .......................10n, 28n

Note, California’s Anti-Busing Amendment: A 
Perspective on the Now Unequal Protection 
Clause, 10 Golden Gate U.L. Rev. 611 (1980)..lln , 17 

B. Reams & P. W ilson, Segregation and the 
Fourteenth A mendment in the States: A 
Survey of State Segregation Laws 1865-1953; 
Prepared for United States Supreme Court 
in  re: Brown v. Board of Education of
Topeka (1975) „ ....................... -....... ------------8n> 9n, l ln

Reynolds, The Education of Spanish Speaking Chil­
dren in Five Southivestem States, 1933 U.S.
Office of Education Bulletin No. 11, quoted 
in C. W ollenberg, All Deliberate Speed: 
Segregation and Exclusion in California 
Schools, 1855-1975 (1976) ..................... ...........  10n

TABLE OF AUTHORITIES— Continued
Page



VII

Rotunda, Congressional Power to Restrict the 
Jurisdiction of the Lower Federal Courts and 
the Problem of School Busing, 64 Geo. L.J. 839
(1976) ...... .............-....... ................................. - ..........  24-25

Sager, The Supreme Court, 1980 Term— Fore­
word: Constitutional Limitations on Congress’ 
Authority to Regulate the Jurisdiction of the
Federal Courts, 95 Harv. L. Rev, 17 (1981)... 19, 20, 25

Tribe, Jurisdictional Gerrymandering: Zoning Dis­
favored Rights Out of the Federal Courts, 16
Harv. C.R.-C.L. L. Rev. 129 (1981) - ...............-  19, 25

Warren, New Light on the History of the Federal 
Judiciary Act of 1789, 37 Harv. L. Rev. 49
(1923) .................. .................................................... -

C. W right, The Law  of Federal Courts (3d ed.
1976) -------------------------- -----------------------------------

TABLE OF AUTHORITIES— Continued
Page

20n



In T he

Bnpvmt (Emtrt at tty Imtpft U ta te
October Term , 1981

No. 81-38

Mary Ellen Crawford, et al,
Petitioners, v. ’

Board of Education of the City of Los A ngeles.

On Writ of Certiorari to the 
California Court of Appeal, Second Appellate District

BRIEF FOR THE LAWYERS’ COMMITTEE FOR CIVIL 
RIGHTS UNDER LAW, THE SAN FRANCISCO 

LAWYERS’ COMMITTEE FOR URBAN AFFAIRS 
AND THE M EXICAN AMERICAN LEGAL DEFENSE  

AND EDUCATIONAL FUND AS AMICI CURIAE,
IN SUPPORT OF PETITIONERS

INTEREST OF AMICI CURIAE

The San Francisco Lawyers’ Committee for Urban 
Affairs (“S.F. Lawyers’ Committee” ) began in 1968 as 
the Northern California affiliate of the Lawyers’ Com­
mittee for Civil Rights Under Law. It is organized as a 
California nonprofit corporation and is classified as a 
tax-exempt public charity under Section 501(c)(3 ) of 
the Internal Revenue Code. The Committee’s program 
involves the provision of pro bono legal representation to 
poor or minority individuals. Its most recent activities 
include participation in various suits concerning racial 
isolation in elementary and secondary schools in the San 
Francisco Area. The Committee also was active in the



2

campaign against the enactment of Proposition l,1 which 
is at issue in this case, and has remained involved in 
subsequent legal challenges to its constitutionality.

The Lawyers’ Committee for Civil Rights Under Law 
(“ Lawyers’ Committee” ) was organized in 1963 at the 
request of the President of the United States to involve 
private attorneys throughout the country in the na­
tional effort to assure civil rights to all Americans. Over 
the past eighteen years, the Committee has enlisted the 
services of thousands of members of the private bar in 
addressing the legal problems of minorities and the poor in 
voting, education (including school desegregation cases), 
employment, housing, municipal services, the administra­
tion of justice, and law enforcement.

The Mexican American Legal Defense and Educational 
Fund (MALDEF) is a private civil rights organization 
founded in 1968, and dedicated to ensuring through law 
that the civil rights of Mexican Americans are protected. 
It has participated in numerous cases involving the edu­
cational rights of Mexican American children, including 
school desegregation cases.

Based on their respective experiences in representing 
poor and minority clients on civil rights issues, in par­
ticular regarding public education, amici file this brief 
in support of petitioners.2

SUMMARY OF ARGUMENT

The drafters of Proposition 1 wanted it to appear to 
be merely a neutral regulation of remedies which Cali­
fornia state courts may use in certain school desegrega­
tion cases brought under the California Constitution. 
They failed to obscure its true purpose. In fact, the 
measure violates a fundamental precept of the four-

1 Cal. Const, art. I, § 7 (a) (hereinafter cited as “ Proposition 
1 ” ) .

2 The parties’ letters of consent to the filing of this brief are 
being lodged with the Clerk pursuant to Rule 36.1.



3

teenth amendment: it purposefully isolates a particular 
class of citizens on the basis of their race (minority 
students seeking racial integration of California public 
schools), and singles that class out for disfavored treat­
ment by the state judiciary.

Amici join with the petitioners in urging this Court to 
reverse the California Court of Appeal’s judgment sus­
taining the constitutionality of Proposition 1, and they 
embrace fully the arguments to this end made in peti­
tioners’ brief. Amici submit this brief to draw the 
Court’s attention to certain arguments against Proposi­
tion 1 which we think deserve particular emphasis and 
clarification. To that extent, this brief will not restate 
all of the points made in petitioners’ brief, but will focus 
on four distinct arguments.

First, amici will demonstrate that in addition to its 
facial infirmities, Proposition 1 wTas passed with a spe­
cific intent to discriminate against black and other mi­
nority school children in California. We will draw the 
Court’s attention to certain material, both in the record 
and judicially noticeable, showing that Proposition 1 can­
not be viewed in isolation, but must be seen as the latest 
embodiment of a virulent racial prejudice which has in­
fected California public and private life continuously 
since before the Civil War.

Second, amici urge that there is only one alternative 
to reversal of the Court of Appeal’s ruling on the con­
stitutionality of Proposition 1: a remand for additional 
fact-finding on the purpose behind Proposition 1. We 
think ample evidence exists to show that Proposition 1 
is unconstitutional because it was adopted for the pur­
pose of discriminating against minority students. How­
ever, the trial court never reached this issue, and the 
Court of Appeal erroneously sustained Proposition l ’s 
constitutionality without ever giving petitioners a full 
and fair opportunity to develop factual evidence critical 
to the issue.



4

Third, amici will demonstrate that Proposition 1 limits 
remedies which may be necessary to vindicate federal 
constitutional rights in cases of school segregation which 
violates the fourteenth amendment. It does this by link­
ing state court jurisdiction rigidly to federal court juris­
diction, even though the lower federal courts can have 
their jurisdiction curtailed in certain instances by Con­
gress pursuant to article III of the Constitution. This 
“ linkage” is a dangerous and unconstitutional encroach­
ment on the fundamental principle of due process that 
state courts of general jurisdiction may not have their 
jurisdiction narrowed if the consequence is the denial of 
any meaningful remedy for the vindication of a federal 
right.

Finally, amici submit that the Court of Appeal im­
properly decided the question whether the Los Angeles 
public school system is segregated in violation of the 
fourteenth amendment. In 1970, the trial court gave 
focused attention to this issue and concluded that the 
segregation of the Los Angeles public schools was de 
jure. This finding was accepted by the California Su­
preme Court in 1976. Nevertheless, the court below de­
clared that the law had changed since that time and, 
relying upon its reading of subsidiary factfinding by the 
trial court in 1970, it overruled the earlier holdings. 
If the Court of Appeal felt it necessary to reopen the 
question of de jure segregation in Los Angeles, it should 
at the least have examined the record rather than merely 
reviewed the 1970 findings. Because the court below 
incorrectly reached out to decide the issue, an appropriate 
course for this Court to follow is to remand for addi­
tional fact-finding and the application of current four­
teenth amendment legal standards to an updated record.



ARGUMENT
I. PROPOSITION 1 MUST BE JUDGED IN THE HIS­

TORICAL, CONTEXT OF LONGSTANDING OFFI­
CIAL SUPPORT FOR SEGREGATION AND 
DISCRIMINATION IN CALIFORNIA, WHICH RE­
INFORCES, THE OTHER EVIDENCE SHOWING 
THAT ITS PASSAGE WAS MOTIVATED BY  
RACIAL ANIMUS AND AN INTENT TO DISCRIM­
INATE

It has long been this Court’s view that in cases chal­
lenging state legislation or official action as racially dis­
criminatory, the historical context is an important evi­
dentiary factor to be weighed. Village of Arlington 
Heights v. Metropolitan Homing Development Corp., 
429 U.S. 252, 267 (1977) ; Reitman v. Mulkey, 387 U.S. 
369, 373 (1967), and cases cited therein. The historical 
context of Proposition 1 compels the conclusion that its 
passage was intended to, and did, accomplish the racially 
motivated purpose of returning minority children in 
Los Angeles and throughout the State of California to 
segregated schools, just as a similar historical context 
caused this Court in Reitman to strike down another 
California voter initiative, Proposition 14. Although the 
Court of Appeal failed to take this background into ac­
count in assessing the validity of Proposition 1 (see Ar­
gument II infra), much of its outline is established by 
materials subject to judicial notice.

Amici agree fully with the petitioners that evaluation 
of the other factors specified by this Court’s decision in 
Arlington Heights, 429 U.S. at 266-68, leads to the 
inevitable judgment that Proposition 1 intentionally dis­
criminates against minority students in California. In 
this section of our brief, we assemble, for the Court’s 
additional consideration, significant indicia of the histori­
cal context surrounding Proposition 1.

The historical record demonstrates a longstanding, un­
wavering pattern of governmental support for— or out-



6

right compulsion of— racial segregation and discrimina­
tion in every area, including public education. To the 
extent that the actions of the California Legislature, 
courts, or Department of Education began to reflect any 
different attitude, the voters of the state have consistently 
sought to return to a prosegregation, racially discrimi­
natory public policy. For example, this Court noted in 
Reitmxm, 387 U.S. at 374, that the historical background 
of Proposition 14 included a 1961 legislative measure 
that outlawed racially restrictive covenants. That legis­
lative measure was significant because California citi­
zens had long used such covenants to segregate racial 
minorities, and California courts had consistently en­
forced them. See Los Angeles Investment Co. v. Gary, 
181 Cal. 680, 186 P. 596 (1919). When California voters 
rose up to undo this legislative progress by passing 
Proposition 14, the inference of racial motivation behind 
the initiative was compelling. Similarly, Proposition 1 
represents but the latest in a series of attempts by the 
California electorate to overturn antidiscrimination steps 
taken by any branch of state government, and to pre­
serve school segregation.

For the Court’s convenience, we sketch the contours of 
the historical record in tabular form at the end of this 
section of the brief, at 8-11, infra, and summarize it here 
as follows:

Although California was not admitted to the Union 
as a slave state, within a few years its Legislature 
prohibited racially mixed schools, banned Negroes from 
testifying in judicial proceedings involving whites, and 
excluded blacks and Chinese individuals from public of­
fice. The state’s official policy of racial separation and 
white supremacy continued unabated well into the twen­
tieth century and was sensitive to every shift in popu­
lar prejudice. For example, legislation mandating sepa­
rate schools was enacted in 1885 for Chinese children, in 
1909 for Indian children, and in 1921 for Japanese 
children.



7

State officials enforced and encouraged white suprema­
cist beliefs and the practice of racial segregation. In 
1867, a year before California refused to ratify the 
fourteenth amendment, the Governor urged racial separa­
tion and specifically noted the operation of separate 
schools for “ colored”  children in the State. As indicated 
above, the California courts consistently enforced racially 
restrictive covenants by which housing patterns were kept 
segregated. By the 1930’s California school district offi­
cials had developed techniques for maintaining segre­
gated schools by selecting sites deep in racially homogene­
ous neighborhoods, and in 1953 the California Attorney 
General’s Office frankly informed this Court that school 
district attendance zone boundaries were often gerry­
mandered for racial reasons. Despite early enactment 
of a civil rights measure, public accommodations re­
mained largely segregated until the relatively recent 
past.

Efforts by the California Legislature and courts in 
the 1960’s and 1970’s to alter the state’s traditional 
public policy to achieve greater equality of opportunity 
in the sensitive areas of housing and education were 
greeted with resistance and defiance. As noted above, 
Proposition 14 attempted to nullify statutory fair hous­
ing measures, and both the California Supreme Court 
and this Court found the initiative invidiously discrimi­
natory and unconstitutional in Reitman. A subsequent 
legislative measure and a separate initiative, both de­
signed to prevent school integration, were declared un­
constitutional by the California Supreme Court, in one in­
stance, and construed to avoid a declaration of uncon­
stitutionality, in the other. Finally, the intentions of 
Proposition l ’s supporters are illuminated by the action 
of its sponsor, after its passage, in initiating legislation 
(vetoed by the Governor) which would have instructed 
California courts applying federal decisional law under 
Proposition 1 to ignore this Court’s constitutional hold­
ings in Columbus Board of Education v. Penick, 443 U.S.



8

449 (1979) and Dayton Board of Education v. Brinkman, 
443 U.S. 526 (1979), because they were viewed as too 
favorable to school desegregation.

In sum, the historical context of Proposition 1 places 
the measure squarely within a long tradition of state 
policies to further racial separation and discrimination. 
Like the other evidence discussed by the petitioners, it 
points to the conclusion that Proposition 1 is invidiously 
discriminatory. The Court below erred in sustaining its 
constitutionality and applying it to this case.

Historical Overview of Discrimination in California
1849 California admitted to the Union.

First California Constitution limits suffrage and legis­
lative office to white males.3

1850 First California Legislature passes anti-miscegenation 
statute.4 *
First California Legislature enacts measures to prohibit 
giving of testimony by non-whites (defined as those 
having 1/8 or more non-white blood) in judicial cases 
involving whites.6

1854 Separate schools for black pupils established in Sacra­
mento and San Francisco; state law provides for school 
census only of white children and apportionment of state 
school funds based upon census only of white children.6

1863 California Legislature enacts law requiring the creation 
of separate schools for non-white pupils by local dis­
tricts.7

3 Cal. Const., art. II, §106; art. IV, § 116 (1849).
4 1850 Cal. Stats., ch. 140, at 424.
6 1850 Cal. Stats., ch. 99, § 14, at 230; ch. 142, § 306, at 455.
6 B. Beams & P. W ilson, Segregation and the Fourteenth 

A mendment in the States: A Survey of State Segregation 
Laws 1865-1953; Prepared for United States Supreme Court 
in r e : Brown vs. Board of Education of Topeka 40-41 (1975) 
[hereinafter cited as Reams & W ilson].

7 Act of April 6, 1863, Cal. Stats,, ch. 159, § 68, at 210. See also 
Act of March 22, 1864, 1863-64 Cal. Stats., ch. 209, § 13, at 213; 
Act of March 24, 1866, 1865-66 Cal. Stats, ch. 342, §§ 57-59, at 
398; Act of April 4, 1870, 1867-70 Cal. Stats., ch. 556, § 56, at 838- 
39; Cal. Pol. Code §§ 1662, 1669 (1872).



9
1865, California Governor, in address to Legislature, notes
1867 existence of separate schools for non-white children in

State.8 *
1868 California Legislature refuses to ratify fourteenth

amendment.
1874 Segregation of black students upheld by California

Supreme Court.8
1880 California Legislature repeals statutes requiring school 

segregation.10
1885 California Supreme Court orders admission of Chinese 

student to white school in San Francisco.11
California Legislature, in reaction to' decision, reenacts 
school segregation statute to apply to “ Mongolian and 
Chinese” students, preventing admission of child.12

1886 Supreme Court of United States rules that San Francisco 
authorities discriminated against Chinese in administra­
tion of laundry ordinance.13

1902 Segregation of Chinese students upheld in federal court.14 15
1909 California Legislature amends Education Code to au­

thorize separate' schools, for Indian students.16
1919 California Supreme Court enforces racially restrictive 

covenants.16
1921 California Legislature amends Education Code to require 

separate schools for Japanese Children.17

8 Reams & W ilson at 34; 1867-68 Cal. State Journal 32.

8 Ward v. Flood, 48 Cal. 36 (1874).

10 Act of April 7, 1880, 1880 Cal. Stat. Amend., at 47.
11 Tape v. Hurley, 66 Cal. 473, 6 P. 129 (1885).

12 Reams & W ilson, at 42-43; Wysinger v. Crookshank, 82 Cal. 
588, 23 P. 54 (1890).

13 Yick Wo v. Hopkins, 118 U.S. 356 (1886).

14 Wong Him v. Callahan, 119 F. 38 (C.C.N.D. Cal. 1902).

15 Reams & W ilson, at 42-43; see Piper v. Big Pine School Hist., 
193 Cal. 664, 226 P. 926 (1924).

16 Los Angeles Investment Co. v. Gary, 181 Cal. 680, 186 P. 596 
(1919).

17 Reams & W ilson, at 42-43.



10
1925 California Supreme Court upholds separate school re­

quirement for Indian pupils.18 * * 21 22 *
1933 Los Angeles school district segregates Mexican-American 

children by site selection and school construction policies.1®
1934-70 Pasadena school district officials use numerous devices 

to maintain racial segregation in the schools.30
1936-40, School construction, attendance zoning, racial assignment
1960-70 and within-sehool segregation used by Oxnard School 

District officials to isolate Mexican-American pupils.21
1942 Widespread racial and ethnic segregation found by Los 

Angeles, sheriff to affect public life.22
1947 Los Angeles County Counsel defends anti-miscegenation 

law on grounds that “ Negroes are socially inferior and 
have so been judicially recognized.” 38

18 Piper v. Big Pine School Dist., 193 Cal. 664, 226 P. 926 (1924). 
The Co-urt held that state school authorities were responsible 
for providing a “ separate but equal” education for Indian students 
even in districts in which Indian children could attend federal 
institutions.

10 A Los Angeles district official reported:
[0]ur educational theory does not make any racial distinction 
between Mexican and native white population. However, pres­
sure from white residents of certain sections forced a modifica­
tion of this principle to the extent that certain neighborhood 
schools have been forced to absorb the majority of Mexican 
pupils of the district.

Reynolds, The Education of Spanish Speaking Children in Five 
Southwestern States, 1933 U.S. Office of Education Bulletin 
No. 11, quoted in C. W ollenberg, All Deliberate Speed: Segre­
gation and Exclusion in California Schools, 1855-1975 112 
(1976).

30 Spangler v. Pasadena City School Dist., 311 F. Supp. 501 
(C.D. Cal. 1970).

21 Soria v. Oxnard School Dist. Bd. of Trustees, 386 F. Supp. 539 
(C.D. Cal. 1974).

22 1942 report of Los Angeles County Sheriff noting segregation 
and exclusion in “ swimming plunges, public parks and even in 
schools” as well as theaters and restaurants, quoted in I. Hendrick, 
T he Education of Non-W hites in California 1849-1970 99 
n.5 (1977).

28 Perez v. Sharp, 32 Cal. 2d 711, 727, 198 P.2d 17, 26-27 (1947).



11
1953 California Attorney General advises Supreme Court of 

the United States that racial segregation of students is 
practiced by some school districts in State.24

1957 Survey finds widespread segregation in public accom­
modations despite state civil rights law.25

1959-69 School construction and gerrymandering of attendance 
zone boundaries used to segregate schools in Richmond 
school district.26

1964 Voters adopt Proposition 14 for purpose of repealing fair 
housing laws and protecting right of landlords to dis­
criminate on grounds of race.27 28 29

1970 California Legislature adopts Wakefield amendment to 
Education Code for purpose of prohibiting use of trans­
portation for school integration; later construed as in­
effective so as to avoid constitutional question.38

1972 Voters adopt Proposition 21 to rescind State1 Education 
Department policy favoring elimination of racial imbal­
ance and to prevent assignment on racial basis to over­
come segregation; held unconstitutional.39

1979 Following passage of Proposition 1 by California voters, 
Legislature passes measure to limit incorporation of fed­
eral standards deemed too favorable to litigants seeking 
desegregation.310

24 Reams & W ilson, at 47.
35 “ . . . ‘after having a civil rights law for 50 years . . .’ less 

than 20 percent of California’s hotels and motels will accommodate 
Negroes,”  Chicago Defender, April 27, 1957, at 20.

26 Johnson v. Richmond Unified School Dist., No. 112094 (Super. 
Ct., Contra Costa County, April 3, 1972).

27 Reitman v. Mulkey, 387 U.S. 369 (1967).
28 San Francisco Unified School Dist. v. Johnson, 3 Cal. 3d 937, 

479 P.2d 669, 92 Cal. Rptr. 309, cert, denied sub nom. Fehlhaber 
v. San Francisco Unified School Dist., 401 U.S. 1012 (1971).

29 Santa Barbara School Dist. v. Superior Ct., 13 Cal. 3d 315, 
530 P.2d 605, 18 Cal. Rptr. 637 (1975).

39 See Comment, Proposition 1 and Federal Protection of State 
Constitutional Rights, 75 Nw. U.L. Rev. 685, 704-05 n.120 (1980) ; 
Note, California’s Anti-Busing Amendment: A Perspective on the 
Now Unequal Equal Protection Clause, 10 Golden Gate U.L. Rev. 
611, 666 n.251 (1980).



12

II. WHILE THERE IS ENOUGH EVIDENCE IN THE 
EXISTING RECORD TO SHOW PROPOSITION 1 IS 
UNCONSTITUTIONAL, THERE IS NOT ENOUGH 
EVIDENCE TO SUSTAIN ITS CONSTITUTION­
ALITY

In the first section of this brief we outlined how 
Proposition 1 grew out of California’s long history of 
racial and ethnic discrimination. The immediate history 
of Proposition 1 reveals that it is intended to deprive 
state courts of the means to aid minority children who 
seek to enforce their right to attend desegregated schools. 
We believe that the facts in this case, illuminated by the 
history of Proposition 1, compel the conclusion that 
Proposition 1 is unconstitutional. If this Court is dis­
posed to give consideration to the possible validity of the 
initiative, however, it should do so only after remanding 
the case for further factual development in the trial 
court.

In determining the validity of a measure like Proposi­
tion 1, which purports to be racially neutral, the Court 
must inquire not merely whether it denies minority stu­
dents the equal protection of the laws by its express 
terms, but also whether this protection is denied “ in 
substance and effect.”  Without such an inquiry, “ a re­
view by this Court would fail in safeguarding constitu­
tional rights.” Norris v. Alabama, 294 U.S. 587, 589- 
90 (1935) (Hughes, C.J.). The Court cannot make this 
essential inquiry, however, unless all parties have had 
an opportunity to present relevant evidence, and the 
Court has before it a complete record developed in the 
trial court. Important and difficult constitutional issues 
cannot and should not be decided in the absence of an 
adequate factual record. Time, Inc. v. Firestone, 424 
U.S. 448, 461-63 (1976) ; W.E.B. DuBois Clubs v. Clark, 
389 U.S. 309, 312 (1967).

In this case, the factual record necessary to support 
the decision of the Court of Appeal is entirely lacking. 
The trial court did not reach the issue of the constitu­



13

tionality of Proposition 1 and rested its decision for 
plaintiff on other grounds. Accordingly, the subsequent 
decision of the Court of Appeal that Proposition 1 is 
constitutional is entirely unsupported by any findings of 
fact with respect to the history of Proposition 1, its 
objectives, or its impact on the plaintiffs in this case. 
Rather, the Court of Appeal validated Proposition 1 by 
relying on the brief and self-serving statement of legis­
lative purpose appended to the measure, by indulging the 
negative presumption that the legislators who wrote and 
the voters who adopted Proposition 1 “ could have been 
motivated without segregative intent and discriminatory 
purpose,” and by characterizing arguments to the con­
trary as “pure speculation,” even though petitioners had 
never had their full day in court on the issue of intent. 
113 Cal. App. 3d at 654-55, 170 Cal. Rptr. at 509.

This Court should not permit this unsupported decision 
to stand. Instead it should remand the case for an ex­
amination of these essential questions in the trial court. 
If the Court does not do this, not just these petitioners, 
but all minority children attending illegally segregated 
schools in California will have had their right to an 
effective remedy decided without an opportunity for 
meaningful judicial review.

The decisions of this Court in Washington v. Davis, 426 
U.S. 229, 239 (1976), Arlington Heights, supra, and Per­
sonnel Administrator v. Feeney, 432 U.S. 256 (1979), es­
tablish that in considering the validity of a purportedly 
neutral state constitutional amendment, like Proposition 
1, an evaluation of all circumstantial and direct evidence 
of purpose is essential. The starting point for this inquiry 
is “ the impact of the official action— whether it bears more 
heavily on one race than another.” Sometimes impact 
alone may present so stark a picture of racial discrimina­
tion that no further inquiry is necessary. If impact alone 
is not clearly determinative of intent, however, the court 
must go on to examine other evidence, including evidence 
of the immediate and long-range procedural and substan­



tive history of the challenged action. Arlington Heights, 
429 U.S. at 266-268.

A. The Constitutionality of Proposition 1 Cannot be 
Upheld Without an Examination of Its Impact 
on Minority Students

In its haste to affirm the constitutionality of Proposi­
tion 1, the Court of Appeal failed to take even the first 
step in this essential analysis of purpose. The Court of 
Appeal refused to make any meaningful evaluation of the 
effect of Proposition 1 on minority children. Instead, that 
court simply looked at the text of Proposition 1, and 
blithely concluded that “all the amendment does is remove 
from the court the remedy of pupil school assignment and 
pupil transportation as one among scores of remedies 
available for use by a court to end racial isolation.” 
Crawford v. Board of Education (“ Crawford II” ), 113 
Cal. App. 3d at 655-656, 170 Cal. Rptr. at 510. The court 
made no attempt to evaluate which of those “scores of 
remedies” could be effectively applied to existing condi­
tions in the Los Angeles Unified School District or, indeed, 
to identify even one such remaining “ remedy.” In fact, 
the Court of Appeal made no determination as to whether 
Proposition 1 would leave the state courts with any effec­
tive means to alleviate segregation.

The California Supreme Court in Crawford v. Board of 
Education (“ Crawford I” ) identified the basic tools for 
accomplishing desegregation— redrawing neighborhood at­
tendance zones, “pairing” or “ clustering” of schools, estab­
lishment of “magnet schools” and implementation of “ sat­
ellite zoning.” Crawford I, 17 Cal. 3d 280, 305, 551 P.2d 
28, 44, 130 Cal. Rptr. 724, 740 (1976). Every one of these 
techniques requires pupil assignment or pupil transporta­
tion. Indeed, effective desegregation of necessity almost 
always requires some form of pupil assignment or pupil 
transportation. It is the role of the school board in man­
dating school assignment and transportation that forms 
the predicate for its obligation to desegregate its schools,

14



and makes judicial review of its performance of that obli­
gation so essential.

Although the trial court did not reach the issue, the rec­
ord in this case illustrates how Proposition 1 will prevent 
California courts from ordering any effective remedy for 
segregation. The Los Angeles School Board refused 
even to provide transportation for voluntary transfers 
until ordered to do so by the trial court. (1970 
Findings, If IV.48) :31 The court-ordered desegregation 
plan which led to this appeal included a mix of the tech­
niques indentified by the California Supreme Court, in­
cluding “pairing,” “ cluster schools,” “magnet schools,” 
and the continuation of voluntary transfers with trans­
portation. The plan also required the assignment of non- 
English-speaking Hispanic pupils in groupings which 
would facilitate bilingual education and ended the practice 
of assigning non-English-speaking Hispanic students to 
programs for lower-achieving students. This entire plan 
would be prohibited by Proposition 1. (Order After Trial 
Upon Plan II and the Proposed All-Voluntary Program).

Indeed, all the evidence of impact available in the rec­
ord suggests petitioners will be denied any remedy at all 
if Proposition 1 is upheld. In 1970 the trial court con­
cluded that the Los Angeles school board would not deseg­
regate its schools unless compelled to do so. (1970 Find- 
ings, If IV.47, IV.54, IV.55). Ten years later that court 
found that the Los Angeles Board still “did not have a 
course of action designed to make meaningful progress in

15

31 As noted by this Court, “ Provision for optional transfer of 
those in the majority racial group of a particular school to other 
schools where they will be in the minority is an indispensible 
remedy for those students willing tio transfer to other schools in 
order to lessen the impact on them of the state-imposed stigma of 
segregation. In order to be effective, such a transfer arrangement 
must grant the transferring student free transportation and space 
must be made available in the school to which he desires to move.” 
Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 
26-27 (1971). (emphasis added.)



16
the elimination of harms arising out of minority segre­
gated schools and that [even then] the Board had not 
. . . resolved itself to achieve any such plan.” (Opinion, 
Findings of Fact and Conclusions of Law after Hearing 
R e: Sufficiency of the Response by Respondent to the Ex­
isting Writ of Mandate and to the Order Issued Pre­
viously [hereinafter, “July 7 Order” ] at 3). Moreover, the 
court specifically concluded that the “all voluntary” pro­
gram the board proposed to implement, if permitted to do 
so by the court, would not desegregate any minority 
schools and reflected a lack of concern for minority stu­
dents. (July 7 Order, at 4-5.)

This, with other evidence that can be adduced on re­
mand, will establish that the legislators who proposed and 
the voters who adopted Proposition 1 knew and intended 
that it would do more than just regulate one “ remedy”—  
it would effectively destroy any meaningful chance for the 
minority children in Los Angeles to challenge the school 
system in which they have been segregated in overcrowded 
schools with inferior teachers, curriculum, and physical 
facilities. Crawford II, 113 Cal. App. 3d at 643, 170 Cal. 
Rptr. at 501. This sort of predicted and planned disparate 
impact on minorities is central to assessing the constitu­
tionality of Proposition 1, and it may be considered only 
if the action is remanded for that purpose.

B. The Constitutionality of Proposition 1 Cannot be 
Upheld Without an Examination of Its Historical 
Background

Even a superficial review of the history of Proposition 
1 contained in the existing record, made in light of the 
standards established in Reitman, discloses sufficient in­
dicia of discriminatory purpose to demonstrate that fur­
ther examination of this history is essential before reach­
ing any final determination that Proposition 1 does not 
deny minority students their federally guaranteed right to 
the equal protection of the laws.

This action was initiated in 1963. In 1970, the trial 
court first ordered the desegregation of the Los Angeles



17

school system. (July 7 Order, at 6-14.) That same year, 
legislation requiring parental consent before a child could 
be bused to school was added to the California Education 
Code.82 In 1972, the Education Code was amended to for­
bid student assignment on the basis of race.83 The Cali­
fornia Supreme Court determined that neither statute 
could be constitionally applied to prevent or impede deseg­
regation. San Francisco Unified School District v. John<- 
son, 3 Cal. 3d 937, 479 P.2d 669, 92 Cal. Rptr. 309, cert, 
denied sub nom. Fehlhaber v. San Francisco Unified 
School District, 401 U.S. 1012 (1971); Santa Barbara 
School District v. Superior Court, 13 Cal. 3d 315, 530 
P.2d 605, 18 Cal. Rptr. 637 (1975).

In the meantime, the Los Angeles Board exercised 
every means it had to resist the order to desegregate. 
Indeed, the first mandatory desegregation plan was not 
implemented until 1978. Only a year later, when Proposi­
tion 1 was passed, the Board immediately sought to uti­
lize the constitutional amendment to abandon any mean­
ingful desegregation. (July 7 Order, at 6-14, 96-96).

These facts form the outline. A full evaluation of the 
facts on remand would establish that Proposition 1 is the 
culmination of a twenty-year campaign by the Board of 
Education and its political allies throughout the state to 
evade its statutory and constitutional obligation to provide 
desegregated education in California and to insulate this 
gross breach of duty from meaningful judicial review. 
See Comment, Proposition 1 and Federal Protection of 
State Constitutional Rights, 75 Nw. U.L. Rev. 685, 690- 
693 (1980) ; Note, California's Anti-Busing Amendment: 
A Perspective on the Now Unequal Equal Protection 
Clause, 10 Golden Gate U.L. Rev. 611, 669-681 (1980). * 33

Cal. Educ. Code § 1009.5 (1970) (currently Cal. Educ. Code 
§ 35350 (1978) (W est)).

33 cal . Educ. Code § 1009.6 (1972) (currently Cal. Educ. Code 
§35351 (1978) (W est))-



18

We believe that the sensitive evaluation of the evidence 
mandated by this Court in Arlington Heights would dem­
onstrate that the true purpose of Proposition 1 was to as­
sist recalcitrant school boards in California, like the Los 
Angeles school board here, to evade their obligations to 
minority students and to maintain and perpetuate racial 
and ethnic separation in the schools free from unwelcome 
judicial review. The available history, at the very least, 
establishes a sufficient likelihood that Proposition 1 was 
enacted with this discriminatory intent to preclude any 
conclusion that it is constitutional on its face. It is there­
fore essential for this Court to remand this case for an 
examination in the trial court of the impact, and the ob­
jectives, of Proposition 1 in light of its historical con­
text and the conditions existing prior to its enactment.

III. PROPOSITION 1 IS UNCONSTITUTIONAL BE­
CAUSE IT DENIES THE POWER OF STATE 
COURTS OF GENERAL JURISDICTION TO GIVE 
REMEDIES WHICH ARE NECESSARY TO RE­
DRESS CERTAIN FOURTEENTH AMENDMENT  
VIOLATIONS, IN CASES WHERE CONGRESS 
M AY ATTEMPT TO CURTAIL LOWER FEDERAL 
COURT JURISDICTION

For the reasons set forth below, amici submit that a 
state may not restrict the remedies which its courts may 
provide in suits involving federal constitutional violations.34 
This principle applies not only when the limitations on 
remedy are imposed directly, but also when the authority 
of state courts is circumscribed by making them subject 
to the same restraints as are the lower federal courts. 
Proposition 1 has precisely this prohibited effect. As a 
matter of fundamental California law, subject to altera­
tion only through the tortuous process of constitutional

34 Such findings have been made by trial courts in this and other 
California school segregation actions. E.g., Crawford v. Board of 
Educ., 17 Cal. 3d 280, 288-289, 551 P.2d 28, 32-33, 130 Cal. Rptr. 
724, 728-729 (1976) ; Johnson v. Richmond Unified School Dist., 
No. 112094 (Super. Ct., Contra Costa County, April 3, 1972).



19

amendment, it reduces the authority of state courts in all 
school segregation action pro tanto with the authority of 
the lower federal courts. The availability of a remedy to 
effectuate the right to a non-segregated education thus 
will vary both with shifts in federal decisional law, and 
also with any legitimate exercise of Congress’ authority to 
regulate the jurisdiction of— or even to eliminate entire­
ly— the lower federal courts. Even more significant, the 
availability of necessary remedies in fourteenth amend­
ment school desegregation suits in California courts will 
be called into question while the federal constitutionality 
of subject-specific jurisdictional limitation measures is lit­
igated. See, e.g., Sager, The Supreme Court, 1980 Term 
—Foreword: Constitutional Limitations on Congress’ Au­
thority to Regulate the Jurisdiction of the Federal Courts, 
95 Harv. L. Rev. 17 (1981) (hereinafter, “ Sager” ) ; 
Tribe, Jurisdictional Gerrymandering: Zoning Disfavored 
Rights Out of the Federal Courts, 16 Harv. C.R.— C.L. 
L. Rev. 129 (1981) (hereinafter, “ Tribe” ).

A. As Courts of General Jurisdiction, State Courts 
May Not Be Limited in Their Ability to Impose 
Necessary Remedies for Federal Constitutional 
Violations

It was part of the plan of the Constitution that state 
courts of general jurisdiction would act as the final line of 
defense against unconstitutional government— both state 
and federal— in cases where the lower federal courts had 
not been given jurisdiction by Congress, or where their 
limited subject matter jurisdiction had been narrowed 
by permissible congressional regulation. See P. Bator, 
P. Mishkin, D. Shapiro & H. Wechsler, Hart & 
W echsler’s The Federal Courts and the Federal 
System 11-12 (2d ed. 1973) ; Warren, New Light on 
the History of the Federal Judiciary Act of 1789, 37 
Harv. L. Rev. 49, 53 (1923). Proposition 1 rigidly ties 
the power of state courts to give constitutionally neces­
sary remedies to the power of federal courts to do so: 
a linkage that may seem innocuous until it is evaluated 
in the context of (a) the constitutional grant of some



20

measure of control over federal court jurisdiction to 
Congress,35 * * and (b) the current interest on the part of 
some members of Congress to use that control to limit 
the remedies which federal courts may award in suits 
to enforce constitutional rights,38 including remedies nec­
essary to eliminate unconstitutional dual school systems. 
Of course, there are limits on Congress’ powers to restrict 
federal court jurisdiction, for those powers must be 
exercised in harmony with other provisions of the Con­
stitution. Sager, supra at 37-42. The same limits apply 
to restrictions on state court jurisdiction to adjudicate 
and redress claims of federal constitutional right, in light 
of the supremacy clause and the fundamental role of 
state courts in the constitutional scheme.

For instance, Congress may not withdraw jurisdiction 
from a federal court in a way that infringes the legiti­
mate constitutional powers of the Executive Branch of 
government, or requires a federal court to find facts 
which are untrue to be true. See United States v. Klein, 
80 U.S. (13 Wall.) 128 (1872). Another principle that 
neither Congress nor the states can violate in the guise 
of regulating jurisdiction is that for every violation of 
the federal Constitution some court must have jurisdic­
tion to give those remedies which are necessary to re­
dress the wrong. See, e.g., Guam v. Olsen, 431 U.S. 195, 
204 (1977) ; Johnson v. Robison, 415 U.S. 361, 366 
(1974) ; Yakus v. United States, 321 U.S. 414, 444 
(1944) ; see also Sager, supra, at 41 n.70, 75-76 & n.183. 
Professor Hart put the matter succinctly when he wrote:

85 Article III, §1 states, in part: “The judicial Power of the 
United States, shall be vested in one supreme Court, and in such 
inferior Courts as the Congress may from time to time ordain and 
establish.” See Palmore v. United States, 411 U.S. 389, 400-01
(1973) ; Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850) ;
C. Wright, The Law  of Federal Courts § 10, at 29 (3d ed. 1976). 
The proposition that the lower federal courts could today be elimi­
nated or severely restricted in their authority has been questioned. 
See, e.g., Eisenberg, Congressional Authority to Restrict Lower 
Federal Court Jurisdiction, 83 Yale L.J. 498 (1974).

36 See discussion infra at 24-25 and n.39.



21

“ a necessary postulate of constitutional government [is] 
that a court must always be available to pass on claims 
of constitutional right to judicial process, and to pro­
vide such process if the claim is sustained.” Hart, The 
Power of Congress to Limit the Jurisdiction of Federal 
Courts: An Exercise in Dialectic, 66 Harv. L, Rev. 
1362, 1372 (1953).

This postulate binds state legislators and other state 
law-making authorities no less than Congress. The states 
may not restrict the jurisdiction of their own courts to 
give remedies which are required to vindicate federal 
rights. See Sullivan v. Little Hunting Park, Inc., 396 
U.S. 229, 238-39 (1969) (state court must grant injunc­
tions appropriate to the enforcement of federal civil 
rights “ if that court is empowered to grant injunctive 
relief generally” ) ; Testa v. Katt, 330 U.S. 386 (1947) 
(supremacy clause requires state court to assume juris­
diction over a suit brought under federal price control 
legislation). This is especially true when the jurisdic­
tion of federal courts has been curtailed by Congress 
or by the unique limits on the federal judicial power 
contained in the Constitution. See, e.g., General Oil Co. 
v. Crain, 209 U.S. 211, 226 (1908) (disregarding as 
unconstitutional a state statute making state officers im­
mune from suit in state courts where it is assumed 
that “ suit against state officers is precluded in the na­
tional courts by the Eleventh Amendment” ) ; cf. Maine 
v. Thiboutot, 448 U.S. 1, 11 & n.12 (1980) (supremacy 
clause requires state courts to give attorneys’ fees 
award in civil rights action which was beyond the juris­
diction of a federal district court).

Indeed, the powers which Congress does have to con­
trol the jurisdiction of federal courts, and the remedies 
they may give, can be justified, if at all, only by the 
mandatory availability of state courts to give those same 
remedies where indispensable to the vindication of fed­
eral rights. The Norris-LaGuardia Act, 29 U.S.C. §§ 101- 
15 (1976), for instance, withdraws the jurisdiction of 
federal courts to issue injunctive remedies in “ a case



22

involving or growing out of a labor dispute.” In Lauf 
v. E.G. Skinner & Co., 303 U.S. 323, 330 (1938), the 
Court sustained the constitutionality of the Norris- 
LaGuardia Act, based upon Congress’ broad authority to 
regulate federal court jurisdiction. However, the Court 
did so in light of and without limiting the force of its 
earlier holding in Truax v. Corrigan, 257 U.S. 312 
(1921), that the due process and equal protection clauses 
of the fourteenth amendment prohibited similar state 
legislation restricting the jurisdiction of state courts to 
give injunctions in certain labor disputes. See also 
H.R. Rep, No. 669, 72d Cong., 1st Sess. 10 (1932). 
As the Truax Court observed, “ [i]t  is beside the 
point to say that plaintiffs had no vested right in 
equity relief, and that taking it away does not de­
prive them of due process of law.” 257 U.S. at 334. 
Whatever the merits of a plaintiff’s claim to injunctive 
relief in a labor dispute may be, Truax establishes that 
at the very least a state court must stand ready to en­
tertain his application for it, give him a fair hearing, 
and grant the remedy where appropriate.

Anything less means that for some constitutional vio­
lations by state and federal governments, the victim may 
not obtain any judicial review and relief: a proposition 
abhorrent to any legal system dedicated to the rule of 
law. See Battaglia v. General Motors Corp., 169 F.2d 
254, 257 (2d Cir.), cert, denied, 335 U.S. 887 (1948). 
That federal courts may be powerless to act in such a 
case reinforces rather than detracts from the duty of 
state courts to assume jurisdiction. See Maine v. Thibout- 
ot, 448 U.S. at 11 n.12.

B. In Violation of Due Process of Law, Proposition 1 
Unconstitutionally Links State Court Jurisdiction 
to Give Necessary Remedies to Limits on Federal 
Court Jurisdiction

Proposition 1 states, in pertinent part, that “ pupil 
school assignment” and “ pupil transportation” remedies 
may not be used by California state courts:



(1) except to remedy a specific violation by such 
party that would also constitute a violation of the 
Equal Protection Clause of the 14th Amendment to 
the United States Constitution, and (2) unless a fed­
eral court would be permitted under federal de­
cisional law to impose that obligation or responsi­
bility upon such party to remedy the specific viola­
tion of the Equal Protection Clause of the 14th 
amendment of the United States Constitution, (em­
phasis added.)

This provision has been construed by the state courts 
to make their jurisdiction in fourteenth amendment cases 
turn on what a federal court could do in a similar case. 
For instance, Judge Cohn of the San Mateo County 
Superior Court has observed:

Turning to the argument that Proposition 1 vio­
lates the 14th Amendment of the U.S. Constitution, 
inasmuch as it merely limits California courts to 
what the federal courts can do under the federal 
constitution, it is indeed difficult to accept the con­
tention that by limiting a state court’s jurisdiction to 
that of federal courts there is somehow a violation 
of [the] federal constitution.

Tinsley v. Palo Alto Unified School District, No. 206010 
(July 10, 1980), quoted in Board, of Education v. Superior 
Court, 448 U.S. 1343, 1345 (1980) (Rehnquist, Circuit 
Justice). Likewise, the Court of Appeal in this case 
characterized the effect of Proposition 1 as follows:

The effect of the amendment was to prohibit state 
courts, in desegregation cases, from ordering school 
boards to mandatorily reassign and transport pupils 
on the basis of race, except to remedy a violation of 
the equal protection clause of the Fourteenth Amend­
ment to the United States Constitution under cir­
cumstances which would authorize a federal court 
under federal decisional law to issue such an order.

113 Cal. App. 3d 633, 636-37, 170 Cal. Rptr. 495, 497- 
98 (emphasis added). As this passage shows, Proposition 
1 concerns itself with all “ desegregation cases,” whether



24

they arise under the state or the federal constitutions. 
On its face, the measure restricts the power of California 
state courts in all such cases to issue only those constitu­
tional remedies which “ a federal court would be per­
mitted under federal decisional law to impose.”

This Court’s decisions establish squarely that “pupil 
transportation” and “ pupil school assignment”  remedies 
may be necessary, and hence mandatory, to remedy cer­
tain fourteenth amendment violations. See North Carolina 
State Board of Education v. Swann, 402 U.S. 43 (1971) ; 
Swarm v. Charlotte-Mecklenburg Board of Education, 
402 U.S. 1 (1971); cf. Wright v. Council of City of 
Emporia, 407 U.S. 451 (1972). Indeed, in this very case 
the trial court determined that a comprehensive structural 
remedy embodying these features was necessary on the 
facts to remedy de jure segregation of the Los Angeles 
public school system.®'7 Yet Proposition 1 might, if given 
effect by this Court, eliminate the right of access of 
minority litigants to such potentially essential remedies in 
state courts, even though Congress had tried to strip 
lower federal courts of their jurisdiction to give com­
parable remedies. At the very least, under Proposition 1, 
school segregation litigation in the California courts 
would be disrupted by any congressional effort to restrict 
the “busing” orders of the federal courts, whether those 
efforts were ultimately determined to be constitutional 
or not.

The threat of Congress attempting to withdraw federal 
court jurisdiction to issue such remedies is very real. In 
the past decade, numerous legislative proposals have 
been made to curb the power of federal courts to use 
busing as a remedy in school desegregation cases. See 
e.g., G. Gunther, Cases and Materials on Constitu­
tional Law 730-32 (9th ed. 1975) ; Goldberg, The Ad­
ministration’s Anti-Busing Proposals— Politics Makes Bad 
Law, 67 Nw. U.L. Rev . 319 (1972) ; Rotunda, Congres-

87 This factual conclusion was erroneously tossed aside by the 
Court of Appeal, as we make clear in the last section of this brief.



25

sional Power to Restrict the Jurisdiction of the Lower 
Federal Courts and the Problem of School Busing, 64 Geo. 
L.J. 839 (1976). At least three such proposals— S. 1647, 
S. 1743 and S. 1760— are indeed pending in the current 
session of Congress, and at least one of these, the Hatch 
Bill, S. 1760, has been reported out of subcommittee to 
the full Senate Judiciary Committee.

All of these measures purport to rest upon Congress’ 
concededly broad power to regulate federal court ju­
risdiction under article III of the Constitution. But see 
Sager, supra, at 77-78 n. 187, 87; Tribe, supra. What­
ever the precise scope of that power, it clearly does not 
authorize either Congress or the states to deny the juris­
diction of state courts to grant constitutionally necessary 
remedies, as Proposition 1 appears to do if followed to its 
logical conclusion.

This Court cannot sanction such a result if it is to be 
faithful to the constitutional principle that some court, 
state or federal, must always stand ready to bring re­
calcitrant government into line with the commands of 
the Constitution.38 Professor Hart correctly identified 
what was at stake in a case such as this when he 
answered the question of where a litigant can go to get a 
remedy for a constitutional violation if Congress has shut 
off access to the lower federal courts:

38 Although limitations on the power of the lower federal 
courts to effectuate adequate remedies in school desegregation 
cases have not yet been enacted (and although the validity of such 
measures has not yet been determined), Proposition 1 is unconsti­
tutional. Whatever the breadth of Congress’ authority to deter­
mine how the fourteenth amendment shall be enforced, see Katzen- 
bach v. Morgan, 384 U.S. 641, 654-56 (1966), for the reasons given 
above, the states may not determine that vindication of fourteenth 
amendment rights shall be the exclusive preserve of the federal 
courts, and that state courts will meekly follow wherever federal 
courts are led by Congress. Proposition 1 therefore oversteps the 
limits of California’s legislative authority as of its passage, whether 
or not objectionable restrictions upon federal court authority are 
operative, and the measure is unconstitutional on its face.



26

The state courts. In the scheme of the Constitu­
tion, they are primary guarantors of constitutional 
rights, and in many cases they may be the ultimate 
ones. If they were to fail, and if Congress had taken 
away the Supreme Court’s appellate jurisdiction and 
been upheld in doing so, then we really would be 
sunk.

Hart, The Power of Congress to Limit the Jurisdiction 
of Federal Courts: An Exercise in Dialectic, supra, 66 
Harv. L. Rev. at 1401.

This Court should hold that Proposition 1 is an un­
constitutional attempt by the law-making authorities of 
California to restrict the access of civil rights litigants 
to remedies in state courts to redress federal constitu­
tional violations,39

IV. IN DECIDING THAT THE SEGREGATION IN THE 
LOS ANGELES PUBLIC SCHOOL SYSTEM DOES 
NOT VIOLATE THE FOURTEENTH AMENDMENT  
AS A MATTER OF LAW, THE COURT OF APPEAL 
ERRONEOUSLY REVERSED THE TRIAL COURT 
WHEN IT OUGHT TO HAVE OPENED THE REC­
ORD FOR FURTHER FACTUAL INQUIRY

The history of this case is one of monumental effort 
in the trial court. The original trial in the action lasted 
for 65 days, involved the introduction of voluminous evi­
dentiary material; and resulted in a reporter’s transcript 
running to 62 volumes. Crawford I, 17 Cal. 3d at 287, 
551 P.2d at 31, 130 Cal. Rptr. at 727. After the result­
ing mandate for desegregation of the Los Angeles schools

39 There are now pending in the 97th Congress numerous other 
proposals designed to restrict lower federal court, and Supreme 
Court, jurisdiction in certain subject matter areas, E.g., S. 158 
(abortion) ; S. 481 (school prayer) ; H.R. 865 (school prayer) ; 
H.R. 867 (abortion) ; H.R. 72 (school prayer). If the Court upholds 
Proposition 1 in this case, it is easy to see how state legislators 
and electorates might try to avoid any judicial review at all in these 
controversial areas by “ tying” state court jurisdiction to federal 
court jurisdiction.



27

was affirmed by the California Supreme Court, in an 
opinion which specifically accepted the lower court’s find­
ing of de jure segregation,40 the trial court spent an ad­
ditional three years monitoring the school board’s com­
pliance with the mandate. In the course of that over­
sight, the Court received over 420 written exhibits, con­
ducted 170 days of hearing and examined the testimony 
presenting the Board’s case on the results of its prior 
plans, the reports of its own referee, the court-appointed 
monitoring committee, and the reports of the court- 
appointed experts (July 7, 1980 order, at 2-3). The 
trial court then reaffirmed its original conclusion that 
there was de jure segregation in the Los Angeles Uni­
fied School District in violation of the fourteenth amend­
ment. Accordingly, the trial court concluded that re­
examination of the mandate for desegregation in light of 
the enactment of Proposition 1 was unnecessary, and it 
ordered the Board to proceed with desegregation.

The Court of Appeal reversed. In doing so, that court 
confined its attention to the 1970 findings of the trial court 
and determined that these findings had been made with­
out the benefit of later opinions of this Court establishing 
that the essence of unconstitutional, or “de jure,”  segre­
gation is “ the purpose or intent to segregate.” At that 
point, the Court of Appeal should have remanded the case 
to afford the trial court “ an opportunity to reexamine the 
record on the issue of intent” and to “ permit the parties 
to offer such additional evidence as they may desire per­
taining to that issue.”  Johnson v. San Francisco Unified 
School District, 500 F.2d 349, 352 (9th Cir. 1974). In­
stead, based solely on its review of the findings of the 
1970 trial court, and without purporting to make any 
independent evaluation of the evidence, the Court of Ap­
peals made its own determination that the school segrega­

40 Crawford I, 17 Cal. 3d at 301, 551 P.2d at 41, 130 Cal. Rptr. 
at 737.



tion in Los Angeles was not the result of purposeful 
discrimination.41

This analysis has obvious flaws. The Court of 
Appeal improperly considered only the subsidiary factual 
findings of the trial court in reaching its conclusion that 
the segregation in the Los Angeles schools was not the 
result of purposeful discrimination. It should have ex­
amined the entire record of the trial—but that record 
was not even before it on the appeal below. This is 
particularly important since the trial court’s 1970 judg­
ment was based in part on the state law affirmative duty 
of the Los Angeles School Board to desegregate its schools. 
See Crawford I, 17 Cal. 3d at 284-285, 551 P.2d at 39 
130 Cal. Rptr. at 726. The trial court’s 1970 findings for 
this reason did not exhaustively catalogue the facts of 
record demonstrating that the segregated condition of 
the Los Angeles school district originated with “ acts done 
with specific segregative intent and discriminatory pur­
pose.” Cf. Columbus, 443 U.S. at 466 n.14.42

41 To the extent that the decision below rejects the trial court’s 
original findings, the action of the Court of Appeal was plainly in 
error. A reviewing court cannot overturn the findings of fact of 
the trial court without examination “ of the entire evidence.” 
United States v. United States Gypsum Co., 333 U.S. 364, 395 
(1948). Even if the Court of Appeal made such an examination, 
however, it would still be barred from substituting its own infer­
ences for those made by the trial court. Zenith Radio Corp. v. Hazel- 
tine Research, Inc., 395 U.S. 100, 123 (1969). This analysis is not 
altered by the fact that the decision below was made in the 
California Court of Appeal. The standard in the California Courts, 
is, if anything, more stringent. Board of Educ. of Long Beach v. 
Jack M., 19 Cal. 3d 691, 697, 566 P.2d 602, 605, 139 Cal. Rptr. 700, 
703 (1977).

42 The trial court in this case limited its findings to the period 
after 1963 when this lawsuit was initiated. There was no consider­
ation whether the segregation in 1963 was an outgrowth of a 
segregated “dual school system” prior to 1954. On remand, peti­
tioners could establish that Los Angeles was indeed operating such 
a dual system. See generally I. Hendrick, T he Education of Non- 
W hites in  California, 1849-1970 91-104 (1977).

28



29

The Court of Appeal also erred in its facile assump­
tion that the Los Angeles District’s “maintenance of a 
neighborhood school system, siting schools in the geo­
graphic center of their need, assignment of pupils to 
neighborhood schools, and failure to provide free trans­
portation for open tranfers”  were “ neutral acts.”  Craw­
ford II, 113 Cal. App. 3d at 644, 170 Cal. Rptr. at 502. 
Any determination or decision that a “ neighborhood school 
policy” is in fact neutral, and not a “ potent weapon for 
creating or maintaining” racial segregation requires in­
tensive factual scrutiny. Swann, 402 U.S. at 20-21; 
Keyes v. School District No, 1, Denver, 413 U.S. 189, 201- 
02 (1973) ; id. at 234-35 (Powell, J., concurring). It may 
also be necessary to extend the court’s inquiry to the rela­
tionship between school segregation and residential segrega­
tion since residential patterns themselves may be the prod­
uct of an illegally segregated school system, or other uncon­
stitutional state action. Columbus, 443 U.S. at 465 n.13; 
Swann, 402 U.S. at 20-21; Keyes, 413 U.S. at 201-202; 
Crawford I, 17 Cal. 3d at 299-300, 551 P.2d at 40, 130 
Cal. Rptr. at 736-737.

As Justice Stewart has observed, the question whether 
actions which produce racial separation are intentional, 
within the meaning of the decisions of this Court, presents 
difficult and subtle issues of fact. Columbus, 443 U.S. 
at 470-71 (Stewart, J., concurring in the result).

This careful factual scrutiny required in evaluating 
a claim of constitutional right was not provided by the 
Court of Appeal’s summary conclusion that the trial court 
erred, eleven years ago, in finding de jure segregation in 
Los Angeles. But that summary conclusion by the Court 
of Appeal was the predicate for its holding that Proposi­
tion 1 must be applied in this case, and, further, that it 
could be applied without violating petitioners’ rights under 
the fourteenth amendment. Since this Court has granted 
certiorari to review that holding, the manner in which the 
court below decided the fundamental issue of federal con­



30

stitutional law on which the questions presented in this 
case rest must, of necessity, concern the Court. Amici 
suggest, therefore, that the Court may wish to remand the 
case without reaching the important constitutional ques­
tions presented by Proposition 1 in order to permit the 
trial court to make an initial determination as to the ex­
istence or non-existence of purposeful discrimination in 
the Los Angeles School District in accordance with the 
legal standards established by this Court.

CONCLUSION

For all of the foregoing reasons, the judgment of the 
California Court of Appeal should be reversed, and the 
case remanded for entry of judgment for petitioners. Al­
ternatively, the judgment should be reversed and the case 
remanded for further fact-findings on the purpose and ef­
fect of Proposition 1, and on the existence of segregation 
in the Los Angeles public schools in violation of the four­
teenth amendment.

Respectfully submitted,

V ilma S. Martinez 
Peter Roos 

28 Geary Street 
San Francisco, California 

94108
(415) 981-5800

W illiam L. Robinson 
Norman J. Chachkin  

733 15th Street, N.W., 
Suite 520

Washington, D.C. 20005 
(202) 628-6700

Louis E. Wolcher*
Abigail S. Kelly 

Pettit & Martin 
600 Montgomery Street 
San Francisco, California 94111 
(415) 434-4000 

* Attorney of Record
Mark N. Aaronson 
Eva Jefferson Paterson 

625 Market Street, Suite 1208 
San Francisco, California 94105 
(415) 543-9444

Attorneys for Amici Curiae