Seattle School District No. 1 v. The State of Washington

EUGENE A. WRIGHT, Circuit Judge,

dissenting:

The issue in this appeal is whether Initiative 350 violates the Fourteenth Amendment. The initiative was adopted overwhelmingly, passing in each of the 39 counties, and had a statewide affirmative vote in excess of 65%. By enacting the law, Washington’s voters chose to adopt a neighborhood schools policy, and to limit the use of mandatory busing as a means of desegregating schools.

It is not our function to assess the wisdom of that choice. We must decide only whether the choice was constitutionally permissible.

We need not determine at this stage of the litigation whether Seattle or any Washington school district operates or maintains a de jure segregated school system. The initiative expressly refrains from interfering with constitutionally mandated remedial actions. To date, no court has said that any Washington district operates a dual system.

In the absence of a duty to desegregate, I find no constitutional barrier to the voters’ adoption of a neighborhood schools policy. Although the choice made by the voters may have been controversial, it was not one they were precluded from making.

The district court held Initiative 350 unconstitutional on three alternative grounds. The majority, adopting one of the district court’s arguments, holds that, because the initiative contains a racial classification which is not necessary to achieve a compelling state interest, it is unconstitutional. After considering the majority’s analysis, I shall add my views as to the other two grounds articulated by the district court.

I

The majority finds a racial classification in Initiative 350 because it prohibits student assignments beyond the next nearest school in order to obtain racially balanced schools, but allows such assignments for other reasons. It relies on Hunter v. Erickson, 393 U.S. 385 , 89 S.Ct. 557 , 21 L.Ed.2d 616 (1969), and Lee v. Nyquist, 318 F.Supp. 710 (W.D. N.Y.1970), aff’d, 402 U.S. 935 , 91 S.Ct. 1618 , 29 L.Ed.2d 105 (1971), for the proposition that the state creates an “explicit racial classification” insofar as it “differentiates between the treatment of problems involving racial matters and that afforded other problems in the same area.” Maj. op. at 1344.

Finding a racial classification, the majority perceives no need to inquire into the purpose or intent behind Initiative 350. Instead, it proceeds immediately to the question whether the classification is necessary to achieve a compelling state interest.

Although recognizing a state interest in a neighborhood schools policy, the majority finds that interest subordinate to the interest of local communities in promulgating their own educational policies for public *1351 schools. It concludes the state’s interest in neighborhood schools is not compelling and thus the initiative is unconstitutional.

A

In its recent decisions, the Supreme Court has emphasized that the touchstone of an equal protection violation is an intent to discriminate, 1. e., an intent to treat similarly situated persons differently.

In Washington v. Davis, 426 U.S. 229 , 96 S.Ct. 2040 , 48 L.Ed.2d 597 (1976), the Court affirmed the central purpose of the equal protection clause is to prevent discrimination based on race. Id. at 239 , 96 S.Ct. at 2047 . It emphasized, however, that “a racially discriminatory purpose” was an essential element of an equal protection violation. Id. The Court specifically noted the application of this principle in school desegregation cases:

The school desegregation cases have also adhered to the basic equal protection principle that the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose. That there are both predominantly black and predominantly white schools in a community is not alone violative of the Equal Protection Clause. The essential element of de jure segregation is “a current condition of segregation resulting from intentional state action.”

Id. at 240 , 96 S.Ct. at 2047 .

In the following term, the Court reiterated: “Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265 , 97 S.Ct. 555, 563 , 50 L.Ed.2d 450 (1977). In its most recent school desegregation cases, the Court has adhered to this principle. Dayton Board of Education v. Brinkman, 443 U.S. 526 , 97 S.Ct. 2166 , 53 L:Ed.2d 851 (1979); Columbus Board of Education v. Penick, 443 U.S. 449 , 99 S.Ct. 2941 , 61 L.Ed.2d 666 (1979).

The inquiry into intent can be avoided only if the challenged statute contains an explicit suspect classification:

Certain classifications, ... in themselves supply a reason to infer antipathy. Race is the paradigm. A racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon extraordinary justification.... This rule applies as well to a classification that is ostensibly neutral but is an obvious pretext for racial discrimination.... But, as was made clear in Washington v. Davis ... and Arlington Heights . . ., even if a neutral law has a disproportionately adverse effect upon a racial minority, it is unconstitutional under the Equal Protection Clause only if that impact can be traced to a discriminatory purpose.

Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 272 , 99 S.Ct. 2282, 2292 , 60 L.Ed.2d 870 (1979) (citations omitted).

My disagreement with the majority is that I do not believe Initiative 350 contains a racial classification. Rather, the initiative is a neutral law that must be analyzed in terms of its intent.

B

Initiative 350 does not treat persons differently on the basis of race. It does treat student assignments designed to obtain racially balanced schools differently than student assignments for other purposes. In my view that is not a suspect racial classification.

The policy question, whether student assignments beyond the next nearest school should be used to overcome de facto segregation, is at the heart of the choice Initiative 350 presented to the voters. That question has little to do with the question whether such assignments should be permitted for purposes of special education, or to avoid health and safety hazards.

Clearly, the problems of racial segregation and inequality are central to the former question. Mr. Justice Powell has noted the intensified debate over the educational benefits of integration. He has suggested the indisputable benefits of having young *1352 persons attend schools with diverse student bodies “often will be compromised where the methods employed to promote integration include coercive measures such as forced transportation to achieve some theoretically desirable racial balance.” Columbus Board of Education v. Penick, 443 U.S. 449 , 485 n.5, 99 S.Ct. 2941 , 2991 n.5, 61 L.Ed.2d 666 (1979) (Powell, J., dissenting). See Estes v. Metropolitan Branches of Dallas, NAACP, 444 U.S. 437 , 100 S.Ct. 716, 717 , 62 L.Ed.2d 626 (1980) (Powell, J.) (dissent from denial of certiorari).

The Justice’s comments suggest the nature of the question presented to the voters. There is no classification on the basis of race in resolving that question in favor of neighborhood schools, while permitting distant assignments for other purposes.

Moreover, the majority recognizes, as was found by the district court, that the legislative purpose of Initiative 350 was to adopt a neighborhood schools policy. We held recently that a neighborhood schools policy is not constitutionally suspect. Diaz v. San Jose Unified School District, 612 F.2d 411, 415 (9th Cir. 1979). It is inconsistent to hold now that the adoption of such a policy creates a suspect racial classification. 1

That holding is also inconsistent with the Supreme Court’s school desegregation cases. The laborious inquiry into intent, see Columbus and Dayton, supra, could be avoided under the majority’s analysis, by simply finding an explicit racial classification any time a school district bused students for special education or other reasons, while refusing to do so to desegregate its schools.

C

The majority’s analysis ultimately turns on Initiative 350 being a statewide initiative. It states this is the “crucial fact,” and suggests a different result had the neighborhood schools policy been adopted by local school boards. Maj. op. at 1345-1346 n.8. Indeed, it is clear that the Seattle School District could rescind the Seattle Plan without violating the Fourteenth Amendment. See Dayton Board of Education v. Brinkman, 433 U.S. 406, 413-14 , 97 S.Ct. 2766, 2772 , 53 L.Ed.2d 851 (1977).

It is not clear how the exercise of state power creates a racial classification here. The history of governmental attempts to deal with racial discrimination is replete with federal and state laws directing subordinate governmental entities not to take certain actions on the basis of race. Those laws do not contain explicit racial classifications. By addressing a problem involving a racial minority, the state does not create ipso facto a racial classification.

Hunter v. Erickson, 393 U.S. 385 , 89 S.Ct. 557 , 21 L.Ed.2d 616 (1969), does not support the majority’s analysis. The Akron City Council had enacted a fair housing ordinance. The citizens of Akron subsequently by amendment to the city charter required any ordinance regulating the use or sale of real property on the basis of race to be approved by the voters before becoming effective. The amendment applied to the fair housing ordinance.

The Court did not hold that the repeal of the existing ordinance violated the Fourteenth Amendment. 393 U.S. at 390, n.5 , 89 S.Ct. at 560, n.5 . It held the charter amendment violated the equal protection clause because it subjected ordinances aimed at eliminating racial discrimination in housing to a more burdensome legislative process than other ordinances.

Initiative 350 in no way alters the legislative process in the State of Washington. It does not subject legislation sought by racial or other minorities to procedures more burdensome than those applicable to other legislation.

*1353 The difficulty with the majority’s analysis, supported in part by dictum in Lee v. Nyquist, 318 F.Supp. 710 (W.D.N.Y.1970), aff’d, 402 U.S. 935 , 91 S.Ct. 1618 , 29 L.Ed.2d 105 (1971), 2 is that it confuses treatment of racial problems with treatment on the basis of race. The latter, of course, is suspect. But “racial” problems, such as school desegregation, must be dealt with in terms of the specific problem and specific solutions. The state does not create a classification on the basis of race in so doing.

D

Initiative 350 is an exercise of the state’s constitutional responsibilities in the field of public education. 3 The state constitution decrees that it is “the paramount duty of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste or sex.” Wash.Const. Art. IX, § 1 (emphasis added). “The legislature shall provide for a general and uniform system of public schools.” Art. IX, § 2 (emphasis added). See Seattle School District v. State, 90 Wash.2d 476, 518 , 585 P.2d 71, 95 (1978) (state legislature has responsibility for organization, administration and operational details of elementary and secondary education).

In Mandatory Busing v. Palmason, 80 Wash.2d 445 , 495 P.2d 657 (1972), the Washington Supreme Court considered a challenge to a desegregation plan adopted by the Seattle School District and approved by the State Superintendent of Public Instruction. The court stated that a local initiative could not be used to overturn the plan:

Initiative and referendum procedures can be invoked at the local level only if their exercise is not in conflict with state law .... Clearly they cannot be used to interfere in the management of the state’s school system.

80 Wash.2d at 450 , 495 P.2d at 661 (emphasis added) (citation omitted). It is ironic that a federal court would now hold that the state itself may not interfere in its own school system.

The majority’s claim that “Initiative 350 effectively disenfranchises the voters of the local school districts” ignores the district court’s finding that 60% of the voters in Seattle voted in favor of the initiative. In any case, a statewide, rather than local, initiative was required by Palmason. Its use does not, in my view, create an explicit racial classification.

II

The district court’s second argument was that discriminatory intent was a motivating factor in the adoption of Initiative 350.

Proof of discriminatory intent must be gleaned from objective factors, several of which were outlined in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265-68 , 97 S.Ct. 555, 563-65 , 50 L.Ed.2d 450 (1977): (1) discriminatory impact; (2) historical background; (3) specific sequence of events culminating in the decision; (4) departures from the normal procedural and substantive sequence; and (5) legislative and administrative history.

The burden is on the party challenging a statute to prove that discriminatory intent was a motivating factor in its adoption. Id. at 265, 270 , 97 S.Ct. at 563, 566.

The district court did find that “racial bias or racial motivation is a factor in the opposition to the ‘busing’ of students to attain racial balance.” Finding of Fact 3.7. A two-fold response to this purported finding is necessary. First, there is insufficient evidence in the present record to support a *1354 finding of racial bias as to Initiative 350 under the standards developed by the Supreme Court. Second, any ultimate determination as to the presence or absence of discriminatory intent is a highly mixed question of law and fact, reviewable on appeal.

The district court based its finding of discriminatory intent on three factors. First, it found the effect of Initiative 350 would be racially imbalanced schools in Seattle, Tacoma, and Pasco. It found there would be a disproportionate adverse impact on minority students as a result of that imbalance. See Finding of Fact 3.1(a).

Second, it examined the historical background and sequence of events leading to the adoption of the initiative, and concluded it was intended to prevent implementation of the Seattle Plan (/. e., racial balancing of Seattle schools by means of mandatory busing). For example, the court pointed to an unsuccessful recall election designed to remove members of the Seattle Board of Education who supported mandatory busing.

Third, the court considered Initiative 350 to be a marked departure from the “procedural norm,” in that a local decision was overridden in a statewide initiative.

These factors do not support the district court’s conclusion that a discriminatory intent was a motivating factor behind adoption of Initiative 350.

A

The underlying sociological and political assumptions equating quality education with integration have been questioned. See N. St. John, School Desegregation Outcomes for Children 136 (1975). 4 To the extent the district court found the disproportionate adverse impact of Initiative 350 on minority students to be a “certainty,” see 473 F.Supp. at 1015, its finding was clearly erroneous.

Moreover, the Supreme Court has consistently disavowed the proposition that foreseeable impact alone is adequate to prove intent. Additional indicia of discriminatory intent are required. See Keyes v. School Dist. No. 1, Denver, 413 U.S. 189, 208 , 93 S.Ct. 2686, 2697 , 37 L.Ed.2d 548 (1973); Columbus Board of Education v. Penick, 443 U.S. at 464, 99 S.Ct. at 2950 (disparate impact and foreseeable consequences, without more, do not establish a constitutional violation). Discriminatory purpose “implies the decisionmaker ... selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Personnel Administrator of Massachusetts v. Feeney, 442 U.S. at 279 , 99 S.Ct. at 2296 (emphasis added).

B

The historical events cited by the district court are not probative of discriminatory purpose. Assuming that Initiative 350 was prompted by opposition to the Seattle Plan, there is no evidence in the record indicating that opposition to the Seattle Plan was in turn motivated by discriminatory intent. Indeed the district court specifically found that the backers of the initiative acted responsibly in their advocacy of the initiative and did not direct appeals to the racial biases of voters. Finding of Fact 7.27.

Accepting the findings that opposition to the Seattle Plan was the primary motivation behind Initiative 350, the record is devoid of evidence to contradict the state’s contention that historical opposition to the Seattle Plan was motivated by race-neutral concerns. See Findings of Fact 7.30, 7.31, and 7.32. Absent this second linkage, the cited historical and sequential events are simply not probative in establishing discriminatory purpose in the subsequent enactment of Initiative 350.

*1355 C

The concept of a procedural departure from the norm has not been clearly defined. No argument is advanced, however, that the proponents of Initiative 350 failed to follow proper administrative or statutory procedures for its enactment.

Washington voters have utilized the initiative and referendum devices extensively in recent years. See Comment, Judicial Review of Laws Enacted by Popular Vote, 55 Wash.L.Rev. 175,179, n.29 (1979). Any procedural departure from the norm is of minimal probative value here, since it was required by a decision of the state supreme court. See §§ I-C & I-D, supra.

At best, the court is left with an inference of intent solely from foreseeable impact. While disproportionate impact on a racial minority may be highly probative of discriminatory intent, it is not a conclusive evidentiary factor. Personnel Administrator of Massachusetts v. Feeney, 442 U.S. at 278 , 99 S.Ct. at 2295 . Plaintiffs have failed to sustain their burden of proof on this issue. The factual findings on intent do not establish that support for Initiative 350 or opposition to the Seattle Plan was motivated by discriminatory intent. 4A

III

Borrowing from an analytical structure developed in the area of First Amendment rights, the district court invalidated Initiative 350 for overbreadth. I disagree.

The doctrinal basis of the court’s conclusion is ill-defined. Traditionally, the over-breadth doctrine is applied when a possibility exists that a constitutionally protected activity may be “chilled”. See NAACP v. Button, 371 U.S. 415, 432-33 , 83 S.Ct. 328, 337-38 , 9 L.Ed.2d 405 (1963) (enforcement of barratry law may be invalid if it prohibits exercise of First Amendment rights). It is a departure from the normal mode of constitutional adjudication, justified by the favored status of First Amendment rights to free expression and association. Thornhill v. Alabama, 310 U.S. 88, 97-98 , 60 S.Ct. 736, 741-42 , 84 L.Ed. 1093 (1940).

Variants or analogues of overbreadth scrutiny rarely have arisen in the adjudication of other preferred claims. Compare Aptheker v. Secretary of State, 378 U.S. 500 , 84 S.Ct. 1659 , 12 L.Ed.2d 992 (1964) (applying overbreadth doctrine and finding burden on Fifth Amendment right to travel) with United States v. Robel, 389 U.S. 258 , 88 S.Ct. 419 , 19 L.Ed.2d 508 (1967) (invalidating section of same act for First Amendment overbreadth). 5 Courts have developed different methods of strict review to protect other preferred interests. See generally Comment, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 852 (1970). Although similarities exist between equal protection scrutiny and the overbreadth doctrine, the latter should not supplant or supplement the former in its area of application.

Under equal protection analysis, labeling a classification as over-inclusive does not determine its compatibility vel non with the equal protection clause. Under- and over-inclusiveness must be viewed with reference to the means-end relationship. Eisenstadt v. Baird, 405 U.S. 438, 447-54 , 92 S.Ct. 1029, 1035-38 , 31 L.Ed.2d 349 (1972).

Appellees do not assert that the initiative impermissibly restricts First Amendment rights. Rather, they assert that it restricts a constitutional duty under the Fourteenth Amendment.

They cannot assert, however, that an affirmative duty makes their current desegregation plans constitutionally necessary, as *1356 there has been no determination, judicial or otherwise, of de jure segregation. It is their position that Initiative 350 could operate to inhibit or prevent busing remedies to remedy constitutional violations.

The record indicates that the framers and enforcers of Initiative 350 intended that it not interfere with a constitutional duty. This is reinforced by the language of the enactment itself. Section 6 provides:

This chapter shall not prevent any court of competent jurisdiction from adjudicating constitutional issues relating to public schools.

It is axiomatic that courts should endeav- or to construe statutes in a constitutionally permissible manner. United States Civil Serv. Comm’n v. National Ass’n of Letter Carriers, 413 U.S. 548, 571 , 93 S.Ct. 2880, 2893 , 37 L.Ed.2d 796 (1973) (stating that court should not “destroy” a statute but should construe it to comport with constitutional limitations); Lynch v. Overholser, 369 U.S. 705, 710-11 , 82 S.Ct. 1063, 1067 , 8 L.Ed.2d 211 (1962) (interpreting statute to “free” it from constitutional doubts). Facial invalidation for overbreadth is an “extreme” remedy to be avoided if a constitutional construction is possible.

It is not only possible but expressly required that Initiative 350 be construed as not restricting a school district’s performance of a constitutional duty to desegregate. The measure is not an “absolute prohibition” against student assignments for racial balance that would “inescapably operate to obstruct” federal court remedies. See North Carolina State Board of Education v. Swann, 402 U.S. 43, 45-46 , 91 S.Ct. 1284, 1285-86 , 28 L.Ed.2d 586 (1971).

The statute here does not prohibit busing beyond the next nearest school when necessary to fulfill a constitutional duty. Initiative 350 subordinates its neighborhood schools policy to constitutional imperatives.

IV

Initiative 350 presented a sensitive policy issue to the voters. The issue is of special concern to minority groups. Yet absent prior constitutional violations or impermissible motives, I see no reason why the issue should be resolved by federal judges rather than through the legislative process. I would reverse and remand to the district court.

. The majority’s reliance on North Carolina Board of Education v. Swann, 402 U.S. 43 , 91 S.Ct. 1284 , 28 L.Ed.2d 586 (1971), is misplaced. The majority suggests the Supreme Court held a state anti-busing statute unconstitutional because it interfered with the discretion of school districts to adopt desegregation programs that are not constitutionally required. The opinion held the statute unconstitutional because of its interference with constitutionally required remedies.

. Lee, like Hunter , involved a statute which differentiated the way in which measures were enacted depending on their content; the procedures for enacting measures benefiting a racial minority were more burdensome.

. The state constitution vests legislative authority in the legislature, but reserves to the people the power to enact bills independent of the legislature. Wash.Const. Art. II, § 3. An initiative, then, is an exercise of the state’s legislative power. See Love v. King County, 181 Wash. 462, 469 , 44 P.2d 175, 178 (1935) (passage of initiative is an exercise of same power of sovereignty as passage of a statute by the legislature).

. See Bell, Book Review, 92 Harv.L.Rev. 1826 (1979), and studies reviewed therein. See also D. Armor, The Evidence on Busing, 28 Pub.Interest 90 (1972). Cf. J. Coleman, S. Kelly & J. Moore, Trends in School Segregation, 1968-73 (1975) (concluding school desegregation a significant cause of white flight).

See Note, 55 Wash.L.Rev. 735 (1980) (concluding district court’s opinion unsound in its inference of discriminatory intent solely from the decision to maintain a neighborhood schools policy).

. The Court in United States v. Robel declined to address Fifth Amendment arguments. 389 U.S. 258, 261, n.5 , 88 S.Ct. 419, 422, n.5 , 19 L.Ed.2d 508 (1967). It noted that Aptheker v. Secretary of State had been decided under the Fifth Amendment. 389 U.S. at 263 , 88 S.Ct. at 423 . See also Aptheker v. Secretary of State, 378 F.2d 500, 521 (Clark, X, dissenting) (distinguishing Thornhill v. Alabama and NAACP v. Button as First Amendment cases).