Appendix — Washington v. Seattle School Dist. No. 1

32H 9 ©

APPENDIX INDEX

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

State of Washington, et al., 473 F.Supp.

FOO CED IGD oc vccccccecescvecvsccovese

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

State of Washington, et al., 633 F.2d

BESS (EBSD) pov ccccccvccccccccccccecs

Notice of Appeal to the Supreme Court of

the United States (with proof of service)

Order Denying Petition for Rehearing .....

Constitutional and Statutory Provisions

eae ka ta nes 55.006

APPENDIX A

SEATTLE ScHoo. District No. 1 or Kinc County, WaAsH-

INGTON, a Municipal Corporation, et al., Plaintiffs,

and

American Civil Liberties Union et al.,

Intervenor Plaintiffs,

V.

The Srate of Washington et al.,

Defendants

and

Citizens for Voluntary Integration

Committee (Ci.V.L.C.) et al.,

Intervenor Defendants.

No. C78-753V.

United States District Court,

W. D. Washington.

June 15, 1979.

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

VoorRHEES, District Judge.

Based upon the complete record in this case, including

testimony and evidence introduced at the trial in this

matter, the Court makes the following:

FINDINGS OF FACT

1. Parties

1.1 Plaintiff Seattle School District No. 1 of King

County, Washington (sometimes called “Seattle” or the

“District” herein) is under Revised Code of Washington

A-2

Title 28A (“RCW 28A”) a lawfully organized and

functioning municipal corporation. It is charged by law of

the State of Washington “to provide without distinction or

preference on account of race, color, caste or

sex * * * a general and uniform system of public

schools” (An.Const. art. IX, §§ 1 and 2) for the educational

instruction of the approximately 54,000 common school

students, of whom 37.3 percent are racial minorities

according to current federal reporting categories, in kinder-

garten and grades 1 through 12. There are approximately

112 schools in Seattle, which is the largest public school

district in the State of Washington, the boundaries of which

are substantially coterminous with the boundaries of the

City of Seattle, King County, Washington.

1.2 Plaintiff Tacoma School District No. 10 of Pierce

County, Washington (sometimes “Tacoma” herein) is

under RCW 28A a lawfully organized and functioning

municipal corporation. It is charged by law of the State of

Washington “to provide without distinction or preference

on account of race, color, caste or sex * * * ageneral

and uniform system of public schools” for the educational

instruction of the approximately 29,000 common school

students, of whom 20 percent are racial minorities

according to current federal reporting categories, in kinder-

garten and grades 1 through 12. There are approximately 57

schools in Tacoma, which includes the City of Tacoma, the

incorporated towns of Fircrest and Ruston and the

unincorporated areas of Hunt’s Prairie, Dash Point and

Brown’s Point which are substantially coterminous with

the boundaries of the City of Tacoma, Pierce County,

Washington.

1.3 Plaintiff Pasco School District No. 1 of Franklin

County, Washington (sometimes “Pasco” herein) is under

RCW 28A a lawfully organized and functioning municipal

corporation. It is charged by law of the State of Washington

“to provide without distinction or preference on account of

race, color, caste or sex * * * a general and uniform

system of public schools” for the educational instruction of

the approximately 5,300 common school students, of whom

26.5 percent are racial minorities according to current

A-3

federal reporting categories, in kindergarten and grades 1

through 12. There are approximately ten schools in the

Pasco School District, which includes the City of Pasco and

the contiguous unincorporated areas of south Franklin

County, Washington.

1.4 Plaintiff Board of Directors of Seattle School

District No. 1 (sometimes the “Board” herein) is composed

of seven publicly elected members. The Board commits

itself and adopts policy by a majority vote of its members. It

is the statutorily constituted legislative, adjudicative, and

administrative governing body of the District and is

responsible for operating and setting administrative and

educational policy for the District. All plaintiff Board

members have taken as a prior condition of assuming their

public duties the following oath of office:

I do solemnly swear that I will faithfully and

impartially perform the duties of Director, Seattle

School District No. 1 as prescribed by law and to the

best of my ability, and that I will support and maintain

the Constitution of the State of Washington and the

United States. So help me God.

1.5 As indicated in the caption to this document

plaintiffs Sutton, Alexander, Bleakney, Olson, Hol-

lingsworth and Hittman are members of the Seattle School

Board whose identified children are attending school in

Seattle. They have been declared guardians ad. litem for

those children by Order of this Court.

1.6 Plaintiffs Vassar, Annie Jones, Wasserman,

Davis, Andrews, Tangalin, Santos, Marr, Joe and Mona

Jones, Charles, and Taupule are parents of children,

identified in the caption to this document, who are

attending school in Seattle. They have been declared

guardians ad litem for those children by the Order of this

Court.

1.7. The individual plaintiff students represent the

diverse racial and ethnic mix of students in Seattle.

1.8 Intervenor plaintiff American Civil Liberties

Union of Washington (ACLU of Washington) is the

Washington State affiliate of the American Civil Liberties

Union, a nationwide, nonprofit, nonpartisan organization

A-4

dedicated to the promotion and protection of the civil

rights and liberties of all persons.

1.9 Intervenor plaintiff American Friends Service

Committee (AFSC) is an international social change orga-

nization related to the Society of Friends (Quakers). Among

the AFSC’s basic goals is the protection and promotion of

the civil rights and liberties of all persons.

1.10 Intervenor plaintiff Church Council of Greater

Seattle is an ecumenical organization established in 1969

to provide a_ structure within which 22 church

denominations (local congregations, and church-related

entities, Protestant and Catholic, in the Metropolitan Seat-

tle Area) can work cooperatively.

1.11 Intervenor plaintiff Loren Miller Bar Associa-

tion, a Washington nonprofit corporation, is comprised of

approximately 45 lawyers admitted to practice in one or

more states of the United States. It is an affiliate of the

National Bar Association, comprised of lawyers of minority

races. The Loren Miller Bar Association was organized

statewide in the mid-1960’s, having as a primary purpose

the provision of legal assistance to minority persons in cases

involving deprivation of civil rights and liberties.

1.12 Intervenor plaintiff Seattle Branch, National

Association for the Advancement of Colored People (Seat-

tle Branch, NAACP) is the local affiliate of the NAACP.

Throughout its 60 year existence, the NAACP has had as a

primary purpose the achievement of quality integrated

education for all persons regardless of race.

1.13 Intervenor plaintiff Seattle Chapter of the

American Jewish Committee is the local branch of a

national organization founded in 1906 with stated purposes

of resisting and eliminating racism, bigotry and anti-Semi-

tism.

1.14 Intervenor Plaintiff Seattle Urban League is a

local affiliate of the National Urban League, a nationwide,

nonprofit, nonpartisan organization dedicated to equal

opportunity and racial justice.

1.15 Each of the intervenor plaintiff organizations

described in paragraphs 1.8 through 1.14 above has

members or constituents whose minor children attend the

A-5

Seattle schools, and each intervenor plaintiff sues on its

own behalf and on behalf of such members and their chil-

dren.

1.16 The individual intervenor plaintiffs named in

the caption to this document are taxpayers residing within

the boundaries of Seattle and are parents of minor children,

named in the caption to this document, who attend public

schools in Seattle. These individual plaintiffs are black,

white, Chicano, and Asian-American citizens of the United

States who bring this action each on their own behalf and

on behalf of their minor children, for whom they have been

appointed guardians ad litem by Order of this Court.

1.17 The rights of the members or constituents of the

above intervenor plaintiff organizations and other persons

to equal protection of the laws is germane to the

organizational purposes of the intervenor plaintiff organi-

zations.

1.18 Additional intervening plaintiff East Pasco

Neighborhood Council is a nonprofit corporation organized

under the laws of the State of Washington in 1971. The East

Pasco Neighborhood Council is primarily composed of

minority individuals and families. The general membership

resides in an area known as “East Pasco.” East Pasco is an

area which has been physically segregated from the

business area and majority population of Pasco by the

tracks of the Northern Pacific Railroad. These railroad

tracks were constructed in approximately 1943.

1.19 The individual additional intervening plaintiffs

named in the caption are all residents of East Pasco. Each

of these individual intervening plaintiffs is a racial minority

in Pasco, and each is a parent or guardian ad litem, as

identified in the caption, for a student of the Pasco School

District No. 1 of Franklin County, Washington.

1.20 Additional intervenor plaintiff the United

States of America has statutory authority under Section

902 of Title IX of the Civil Rights Act of 1964, 42 U.S.C. §

2000h-2, to participate in actions, such as the present

matter, involving alleged denial of equal protection of the

laws. The Attorney General has certified that this case is of

general public importance.

A-6

1.21 Defendant the State of Washington is one of the

fifty United States of America.

1.22 Defendant Dixy Lee Ray is Governor of the

State of Washington.

1.23 Defendants John Bagnariol and Duane L.

Berentson are the principal officers of the Washington

State House of Representatives. Defendant John A. Cher-

berg is the principal officer of the Washington State Senate.

1.24 Defendant Slade Gorton is Attorney General of

the State of Washington.

1.25 Defendant Frank B. Brouillet is Washington

State Superintendent of Public Instruction.

1.26 Defendants H. Eugene Hall, Levy S. Johnston,

Jack L. Reid, Edward Diamond, Mark E. Hoehne, Roger H.

Lincoln, Walter H. Lewis, James M. Spalding, Ollie Mae

Wilson, Orville Barnes, Grant L. Anderson, Eileen B.

Kalles, Philip B. Swain, and Robert B. Stookey are all of

the members of the Washington State Board of Education.

1.27 Defendant Norman K. Maleng, Prosecuting

Attorney of King County, Washington has been dismissed

from these proceedings.

1.28 Intervenor defendant Citizens for Voluntary

Integration Committee (CiVIC) is a Washington nonprofit

corporation which was a drafter, sponsor, organizer, and

campaigner for Initiative Measure No. 350, the subject

matter of this lawsuit.

1.29 CiVIC was formed on or about December 28,

1977 with the stated purposes of opposing mandatory

school assignments based on racial or ethnic identification,

proposing affirmative programs of voluntary integration,

and promoting quality education on an equal basis for all. A

copy of the CiVIC Articles of Incorporation was filed with

the Secretary of State of the State of Washington on or

about January 16, 1978.

1.30 Intervenor defendants Peter and Sandra King,

Dahley, Bates, Liddell and George and Sally King are

parents of the children, identified in the caption, who

attend schoo! in Seattle.

2. Tender to State; Rejection

2.1 On November 28, 1978, original plaintiff individ-

A-7

uals and taxpayers formally tendered this action to the

Attorney General of the State of Washington demanding

that he promptly initiate and competently prosecute proper

legal action to have Initiative 350 declared unconstitu-

tional. The Attorney General declined plaintiffs’ request to

institute this action in his letter of December 19, 1978.

3. General Facts and Historical Context; Segregation

of Plaintiff School Districts; Failure of “Volun-

tary” Desegregation

3.1 An educational system in which minority stu-

dents are relatively segregated from white students pro-

vides an unequal and poorer education than a system in

which the schools are racially balanced.

3.2 The three plaintiff school districts have had, and

in some instances continue to have, racially imbalanced

schools. The term “racial imbalance” in a school is used to

mean a disproprotionately high minority enrollment in a

particular school in relation to districtwide minority stu-

dent population. The term “segregation” is used to mean,

where indicated, racial separation in housing patterns.

3.3 In each of the plaintiff school districts, there are

residential areas in which minority races are predominant.

3.4 The preponderance of minority families live in

the central and the southeast quarter areas of the City of

Seattle. Those Seattle schools which are most crowded are

located in those areas of the city where the preponderance

of minority families live.

3.5 Residential segregation in Seattle and the pro-

portion of minorities in the school system are such that

elimination of racial imbalance in the public schools cannot

be accomplished through “voluntary” desegregation strate-

gies consistent with Initiative 350.

3.6 The segregation of housing by races in Seattle

cannot be expected to change sufficiently to permit the

racial balancing of public schools to be accomplished within

the reasonably foreseeable future unless some students are

assigned to schools other than their nearest or next nearest

schools.

A-8

3.7 It is difficult to gauge the degree to which “racial

bias” influences opinions about “busing.” Nevertheless,

racial bias or racial motivation is a factor in the opposition

to the “busing” of students to attain racial balance.

3.8 Plaintiff school districts have for some time

attempted to reduce or eliminate the racial imbalance

existing in their schools. But for these efforts which direct

or permit many students to attend schools other than their

nearest or next nearest schools, there would be even greater

racial imbalance in the schools of plaintiff school districts.

3.9 The closure of schools is not a practicable tool for

racial balancing because there is such great and emotional

opposition to the closure of schools.

3.10 The measures taken by the Seattle and Tacoma

School District plaintiffs to balance their schools racially

have met with both public opposition and public support.

In the Seattle School District, the opposition has included

several lawsuits and an unsuccessful recall election directed

at school board members who in 1971 voted to implement a

middle schocl desgregation program which included man-

datory student assignments to non-“neighborhood”

schools. The mandatory assignment feature of the middle

school program was the most controversial part of the

program and was the primary reason for the recall

attempts.

3.11 On October 19, 1978, defendant State Board of

Education adopted a policy statement, applicable to the

State’s common schools, condemning racial segregation in

schools and urging the elimination of segregation from the

State’s public schools. On that same day, the State Board

adopted a definition of racial isolation which was the same

as that adopted by the Seattle School Board by its

Resolution 1977-8.

3.12 At the commencement of the 1978-79 school

year, there were 769,040 students enrolled in the public

schools of this State. At time of trial approximately 300,000

students were being transported by bus to public schools in

the State. Ninety-five percent of those students were being

transported for reasons unrelated to school district

A-9

attempts to reduce or eliminate racial imbalance in the

schools.

4. Historical Background as to Pasco

4.1 In 1943 the Energy and Research Development

Administration, at that time known as the Manhattan

Project, selected the Hanford site for the production of

plutonium for the atomic bomb. The Pasco population in

1943 was predominantly white. Substantial numbers of

blacks began to arrive in the Tri Cities to work on the

Manhattan Project at Hanford. At that time Richland was

a federal government-owned town and under rigid federal

housing regulations which excluded blacks. Blacks were

unable to find housing in Richland, Kennewick or certain

areas of Pasco. The availability of homes for blacks was

greater in east Pasco. Blacks and other minorities began to

move into the east Pasco area, east of the railroad tracks.

4.2 With the phasing out of the Manhattan Project

and the scaling down of the activities of the U.S. Atomic

Energy Commission, many individuals stayed and sought

whatever work was available. Black population in east

Pasco continued to increase, and there began a trend of

migration of whites to the west Pasco area. New schools in

the Pasco School District (“Pasco”) followed these popula-

tion shifts. One original school, Whittier Elementary

School, was left in east Pasco. The residential segregation

in Pasco resulted in a racially imbalanced public school sys-

tem.

4.3 In the spring of 1965 the Pasco School Board

elected to close predominantly black Whittier Elementary

School. The Board voluntarily adopted a systematic plan

for equalizing pupil distribution by race throughout the

Pasco School System. A pupil transportation scheme was

developed to facilitate this, and attendance boundaries

were changed. Only minority children have been bused in

order to implement the Pasco plan. No white students have

been transported to achieve racial balance.

4.4 East Pasco is between 92 and 97 percent minor-

ity.

4.5 The Pasco District has seven elementary schools.

A-10

Three would be predominantly white and three predomi-

nantly minority if students attended the school nearest to

their homes. Current minority percentages in the elemen-

tary schools are as follows:

Mark Twain 15.7%

Longfellow 50.0%

Livingston 15.3%

Gray 38.9%

Robert Frost 31.6%

Emerson 44.8%

Markham 12.9%

5. Historical Background as to Tacoma

5.1 For over a decade the Tacoma School District has

allowed students to attend schools other than those

geographically closest to their homes for the purpose of

preserving an appropriate racial balance in its schools.

Through a program of both mandatory actions (school

closures and racially controlled enrollment at magnet

schools) and voluntary alternatives for students and par-

ents (optional enrollment, busing, and counseling), the

Tacoma School District has been able to lessen the racial

imbalance in its schools. The Tacoma School District's

definition of a racially imbalanced school is one that has a

combined minority enrollment of 50 percent or more or a

single minority of 40 percent or more. All student

enrollment in the Tacoma School District is subject to the

district’s policy of maintaining a racially balanced school

district.

5.2 In the early 1960’s, Tacoma School District per-

sonnel and community leaders realized that housing pat-

terns and other factors had led to relatively high

concentrations of racial minorities at certain of the

district’s schools.

5.3 In July 1966, the Tacoma School Board adopted

a voluntary optional enrollment policy for students attend-

ing McCarver Junior High School, a central area facility

experiencing minority enrollment exceeding 50 percent of

the school population. Students who resided in the

attendance area for McCarver Junior High School were

given the option to attend other junior high schools in the

A-11

district. In addition, students at other junior high schools

were given an opportunity to attend McCarver Junior High

School, provided that such attendance would reduce the

racial imbalance existing at McCarver. The Tacoma School

District provided special bus transportation for students

participating in this optional enrollment program.

5.4 In June 1967 the voluntary optional enrollment

program was expanded to include these central area

elementary schools: McCarver, Stanley, Central and Bryant

Elementary Schools. Students residing in the attendance

areas for those schools were given the option to attend any

elementary school in the Tacoma School District. In

addition, optional enrollment opportunities were extended

to students attending elementary schools outside the cen-

tral area to attend the central area elementary schools if

transfer into the schools would tend to reduce racial

imbalance.

5.5 In October 1967 minority enrollment at McCar-

ver Elementary, Stanley, and McCarver Junior High

Schools was in excess of 50 percent of the total student

population of those schools.

5.6 In April 1968 the Tacoma School Board adopted

major changes designed to ease the perceived racial

imbalance in Tacoma schools. The changes included:

a. Closure of McCarver Junior High School as a

junior high school, and transfer of all junior high

school students attending McCarver to junior high

schools throughout the district;

b. Establishment of an exemplary elementa

school (“magnet school”) at the McCarver Junior Hig

School facility, with admission open to students

throughout the district by voluntary a ep ep only,

and with student attendance controlled by the district

to preserve an appropriate racial balance;

c. Closure of Central Elementary School;

d. Transfer of all sixth graders at Stanley Ele-

mentary School to other elementary schools through-

out the district;

e. Reaffirmation of the district’s position that no

high school in the Tacoma School District would be

allowed to become racially imbalanced.

A-12

5.7 Following this school district action, McCarver

Elementary School went from an 87 percent black

population in 1967 to a 53 percent black population in 1969.

5.8 In May 1970 the Tacoma School Board adopted

policies specifically committing the district to the reduction

of racial imbalance to levels within the State Board of

Education guidelines, and establishing a technologically

advanced elementary school (“magnet school”) at Stanley

Elementary, with an admission program similar to that

existing at McCarver Elementary.

5.9 By September 1971 the elimination of board-

defined racial imbalance at McCarver Elementary School

has been completed.

5.10 By September 1972 no school in the Tacoma

School District had minority enrollment in excess of 50

percent of total student enrollment except Hawthorne,

which was closed as a school building in 1973-74.

5.11 In November 1972 the Tacoma School Board

adopted a limited voluntary optional enrollment program

for high school students, allowing high school students to

attend, with certain qualifications, the schools of their

choice.

5.12 In February 1974 the Tacoma School Board

extended the voluntary optional enrollment program, with

certain qualifications, to all grade levels throughout the dis-

trict.

5.13 The Tacoma School District currently operates

educationally enhanced (magnet school) programs at

McCarver Elementary School and Stanley Elementary

School. Both are located in the Tacoma central area. Those

elementary schools are now operated as districtwide ele-

mentary schools with attendance selections made solely by

application. Students are accepted in those schools in light

of the number of student vacancies at the schools and in

light of the racial balance at those schools.

5.14 As a part of the magnet school programs at

McCarver and Stanley Elementary Schools, attendance at

those schools is controlled by the Tacoma School District to

maintain a racial balance within the district, state and

federal guidelines. At the initiation of the Tacoma School

A-13

District magnet school program in 1968-1970 some stu-

dents living in the geographic attendance areas immedi-

ately surrounding McCarver and Stanley were denied

enrollment at those schools because their attendance would

adversely affect the racial balance. Thus, students, and

particularly black students, whose attendance would have

disrupted the desired level of racial balance at Stanley and

McCarver were assigned to other elementary schools

throughout the Tacoma School District. At present,

changes in housing patterns, optional enrollment, busing

and counseling have permitted all students residing in

McCarver Elementary School geographic attendance area

to attend that school, if they wish, without creating a

racially imbalanced school. However, at present, 70 stu-

dents from the Stanley attendance area are denied

admission to Stanley Elementary School.

5.15 The optional enrollment program operated by

the Tacoma School District allows students to attend any

school within the Tacoma School District, except the

Stanley and McCarver Elementary Schools, whose attend-

ance is controlled by the district through voluntary

applications. To assist the students’ and parents’ decisions

concerning optional enrol!ment, the district has operated

an extensive summer counseling program to counsel par-

ents and students concerning the availability of educational

opportunities at schools other than those nearest the homes

of the students.

5.16 Public transportation is an element of both the

magnet school and the optional enrollment programs.

Transportation is funded by the district, though transpor-

tation services are actually delivered by the Tacoma

Transit System. Currently, approximately 1,394 students

bus in and out of the Tacoma central area as 4 part of the

magnet school program. Approximately 1,200 additional

students annually participate in the optional enrollment

program and many of those students use bus transportation

to travel between their homes and schools. Of the

approximately 1,394 students busing in and out of the

Tacoma central area, approximately 444 are elementary

school children who reside in geographic areas in which

A-14

either McCarver or Stanley is the nearest or next nearest

elementary school. For most of these students, McCarver

or Stanley is also their next-nearest school.

6. Historical Background as to Seattle

6.1 For many years the Seattle School District

(“Seattle”) has taken steps to end racial imbalance of its

schools. These steps hve often been associated with

significant public controversy. In addition to the present

litigation, Seattle has been a party to several lawsuits and

administrative proceedings relating to desegregation. Some

are:

Campbell et al. v. Seattle School District No. 1, Cause

No. 9171 before the United States District Court for

the Western District of Washington (suit to require

“an acceptable plan to achieve meaningful racial bal-

ance in the public schools throughout Seat-

tle * * *” (Complaint, page 6) filed on or about

August 28, 1970 and dismissed October 12, 1972);

State ex rel. Citizens Against Mandatory Bussing v.

Brooks, (“CAMB I”), 80 Wash.2d 121, 492 P.2d 536

(1972) (concerning the sufficiency of a petition to

recall School Board members who voted for a

controversial multi-racial middle school and manda-

tory busing program);

Citizens Against Mandatory Bussing v. Palmason,

(“CAMB II”), 80 Wash.2d 445, 495 P.2d 657, 50

A.L.R.3d 1076 (1972) (a companion case to CAMB I—

except here plaintiffs unsuccessfully asserted, to a

unanimous court, a “right” to have their children

attend neighborhood schools in contravention of the

District’s adopted middle school desegregation plan.

This case established the rule that local school

districts in Washington are responsible for and have

the sole right to assign students to particular schools.

Dawson v. Troxel, 17 Me gr 129, 561 P.2d 694

(1977) (suit unsuccessfully challenging the District’s

policy denying majority race (white) children the

option of transferring out of the { wamequamnag minor-

ity Garfield High School attendance area; this pay

— to promote the desegregation of Gar-

ield);

Coney v. Seattle School District No. 1, Civil Action

No. C75-650M before the United States District Court

A-15

for the Western District of Washington (concerning

the same policy challenged in Dawson and demandin

that Garfield be closed, school boundaries be change

to require all Seattle high schools to have the same

ratio of black and white students, and the neighboring

school districts be drawn into a “regional desegrega-

tion plan.” (Complaint, pages 16-17 filed about Sep-

tember 9, 1975 and dismissed May 6, 1977);

Simmons v. Seattle School District No. 1, Civil Action

No. C76-134V consolidated with Nakamura v. Seattle

School District No. 1, Civil Action No. C76-135V

before the United States District Court for the

Western District of hehe me a99 (these two cases also

involved the District’s Garfield transfer policies and

sought roughly the same relief as Coney. Simmons and

Nakamura were filed about February 27, 1976. They

were dismissed July 29, 1977);

Numerous complaints under Title VI of the 1964 Civil

Rights Act have been filed with the Office for Civil

Rights (“OCR”) of the United States Department of

Health, Education and Welfare (“HEW”). Some of

these complaints involved teacher assignments and

bilingual education requirements (“Lau” compli-

ance—named after a related lawsuit (Lau v. Nichols,

414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974)) in

which the District was not a party). The National

Association for the Advancement of Colored People

(“NAACP”) filed a complaint with OCR on April 22,

1977 challenging the segregation of the Seattle Public

Schools and calling upon OCR to terminate all federal

funding to the District until it is desgregated. This

complaint was settled by a Memorandum of Agree-

ment between OCR and the District on June 7-8, 1978.

Roe, et al. v. Seattle School District No. 1 (“Roe I”),

King County Superior Court Cause No. 838291, and

Roe, et al. v. Seattle School District No. 1 (“Roe IT”),

King County Superior Court Cause No. 839530, filed

about December 13, 1977 and January 13, 1978,

respectively (these cases challenged and sought to

enjoin the District’s adoption and implementation of

the Seattle Plan for elimination of racial imbalance

adopted by the Seattle School Board on December 14,

1977. The cases were consolidated and dismissed pur-

suant to the District’s motion for summary judgment.

They are presently on appeal to the Washington State

Supreme Court);

A-16

Velikanje, et al. v. Seattle School District No. 1 and

Washington State Department of Ecology, Thurston

County Superior Court of Washington Cause No. 78-2-

00066-2, filed in July 1978 (seeks to enjoin operation of

the Seattle Plan on the theory that the District did not

prepare an environmental impact statement for it.

rial of this matter has been continued pending the

outcome of this action).

6.2 Since 1963 Seattle has had voluntary racial trans-

fer programs whereby students could transfer to schools

outside their residential attendance area if doing so

improved racial balance in the sending and receiving

schools.

6.3 In 1971 the Board voted to adopt a middle school

mandatory assignment desegregation plan. Implementa-

tion of the middle school plan, which involved the creation

and maintenance of five racially-balanced middle schools

through mandatory student assignments, was delayed one

year by reason of Citizens Against Mandatory Bussing v.

Palmason. Adoption of the middle school plan also

prompted an effort to recall four Board members who voted

for the plan. The recall effort failed by a narrow margin at

the polls.

6.4 Effective August 1976, the Board hired a new

Superintendent, Dr. David L. Moberly, and directed him

to develop and implement a desegregation program for the

Seattle schools.

6.5 During the school year 1976-77 and the summer

of 1977 the Seattle School District developed, publicized,

and encouraged participation in a “magnet” school desegre-

gation program. The program, implemented in 1977-78,

permitted students to transfer voluntarily from their

“neighborhood” schools to “magnet” schools which con-

tained educational programs designed to attract students.

6.6 The magnet program succeeded in promoting

student movement to a greater degree than had ever before

been experienced. It did not succeed, however, in attracting

a sufficient number of white student participants to effect a

racial balancing of the system. While much of the student

movement prompted by the magnet program helped to

A-17

reduce racial imbalance, a disproprotionate amount of the

overall movement was by black students.

6.7 During the 1975-78 school years, a disproportion-

ate number of Seattle’s black students were participating

in Seattle’s desegregation programs through their volun-

tary or mandatory transfer to schools outside their neigh-

borhood. .

6.8 Despite the existence of extensive voluntary,

magnet, and mandatory middle school desegregation pro-

grams, racial imbalance in Seattle actually increased

between the 1970-71 and 1977-78 school years. The Board,

therefore, concluded that a voluntary student assignment

plan, standing alone, without a mandatory assignment

“backup,” could not effect an acceptable racial balancing

of the Seattle schools.

6.9 In June 1977 the Board, in Resolution 1977-8,

defined “racial imbalance” as “the situation that exists

when the combined minority student enrollment in a school

exceeds the districtwide combined minority average by 20

percentage points, provided that the single minority enroll-

ment (as defined by current federal categories) of no school

will exceed 50 percent of the student body.” The Board then

resolved to eliminate minority racial imbalance in the

public schools of Seattle by the 1979-80 school year. The

Board also adopted Resolution 1977-9, which directed the

formulation of an extensive planning and citizen involve-

ment process to develop desegregation strategies.

6.10 On December 14, 1977, the Board adopted Res-

olution 1977-78 which selected the strategies to be used in

eliminating Seattle’s racial imbalance. On that same day

the Board directed the school district administration to

continue developing the desegregation plan, which came to

be known as The Seattle Plan. This plan, for the 1978-79

school year, was adopted in March 1978.

6.11 A principal element of The Seattle Plan is the

initial fixed assignment of entire neighborhoods of students

to schools other than those geographically closest to their

homes (their “neighborhood schools”) for a portion of the

students’ K-12 school careers. The Seattle Plan contains

significant voluntary assignment program options which

A-18

are consistent with the Plan’s racial balancing goals.

6.12 In taking action to effect a racial balancing of

the Seattle schools, those members of the Board who voted

to adopt the Plan were motivated by a number of

considerations. Among those were their desire to carry out

the oath of office which each took as a condition precedent

to taking office, their desire to ward off threatened

litigation, their desire to prevent the threatened loss of

federal funds, their desire to relieve the black students of

the disproportionate burden which they had borne in the

voluntary efforts to balance the schools racially and their

perception that racial balance in the schools promotes the

attainment of equal educational opportunity and is benefi-

cial in the preparation of al! students for democratic

citizenship regardless of their race.

6.13 Implementation of the first-year phase of the

Seattle Plan’s two year program has substantially reduced

the number of racially imbalanced schools in the district

and has substantially reduced the percentage of minority

students in those schools which remain racially imbalanced.

6.14 Segregated housing patterns exist in the City of

Seattle. These segregated housing patterns result in racially

imbalanced schools when a neighborhood school assign-

ment policy is implemented.

6.15 The Board interds to continue full implementa-

tion of The Seattle Plan to the extent permitted by law.

6.16 If Initiative 350 is implemented it is probable

that there would be significantly less black community

support for and black student participation in any

voluntary program for reducing racial imbalance in the

Seattle schools.

7. Circumstances Relating to Adoption of Initiative

350

7.1 In December 1977, a group of Washington resi-

dents, who were opposed to the racial balancing strategies

then being considered by the Seattle School Board, brought

suit in King County Superior Court of the State of

Washington (Roe, et al. v. Seattle School District No. 1, et

al., King County Superior Court Cause No. 838291) to

A-19

enjoin the Board’s anticipated adoption of The Seattle

Plan. The application for injunction was denied by

Superior Court Judge George H. Revelle on the morning of

December 14, 1977; The Seattle Plan (Resolution 1977-28)

was adopted that afternoon.

7.2 Subsequent to the Board’s adoption of The Seat-

tle Plan, the same citizens and others brought another state

court suit (Roe, et a/. v. Seattle School District No. 1, et al.,

King County Superior Court Cause No. 839530) to enjoin

the scheduled fall 1978 implementation of The Seattle

Plan.

7.3 The individuals who brought these two injunc-

tive actions and others began in December 1977 to call

themselves Citizens for Voluntary Integration Committee

(“CiVIC”). On January 16, 1978 they formally chartered

Citizens for Voluntary Integration Committee with the

State of Washington as a Washington nonprofit corpora-

tion pursuant to the provisions of RCW 24.03.

7.4 CiVIC was formed because of its founders’ oppo-

sition to The Seattle Plan.

7.5 As part of the effort of CiVIC and persons acting

with CiVIC to halt The Seattle Plan, CiVIC proposed an

initiative for submission to the voters of the state at the

1978 general election.

7.6 Initiative 350 was patterned after previous fed-

eral legislative enactments, including the Esch Amend-

ment, 20 U.S.C. § 1714(a), the Byrd Amendment, P.L. 94-

206, § 209(90) Stat. 22), reenacted as P.L. 94-439, § 208 (90

Stat. 1434), and the Eagleton-Biden Amendment, P.L. 95-

205 (91 Stat. 1460).

7.7 The purpose of these federal legislative enact-

ments was to stop busing for school desegregation purposes

except where constitutionally required.

7.8 Exept for the assignment of students to effect

racial balancing, the drafters of Initiative 350 attempted to

preserve to school districts the maximum flexibility in the

assignment ot students.

7.9 Initiative 350 was developed as a response to

racial balancing efforts in Seattle as embodied in The

Seattle Plan.

A-20

7.10 For a time CiVIC adopted as its publicity and

campaign slogan the expression “Ban the Plan,” which

referred to “banning” The Seattle Plan.

7.11 The District moved for summary judgment in

the pending Roe actions in May 1978. Judge Howard

granted the District’s motion for summary judgment, dis-

missing all of plaintiffs’ claims, and signed appropriate

orders on June 21 and 26, 1978.

7.12 Several of the same persons who were plaintiffs

in King County Cause Nos. 838291 and 839530 then filed

suit (Velikanje, et al. v. Seattle School District No. 1, et

al.) in July 1978 in Thurston County Superior Court of the

State of Washington (Cause No. 78-2-00066-2) against the

District and the Washington State Department of Ecology,

praying that implementation of The Seattle Plan in the fall

of 1978 be enjoined due to the District’s failure, pursuant to

a declaratory ruling from the Department of Ecology, to

prepare an environmental impact statement (EIS) in con-

nection with The Seattle Plan. This action is currently

pending.

7.13 Prior to the November 7, 1978, election and

pursuant to the provisions of RCW Ch. 29.81, the Secretary

of State mailed to all registered voters in the State an

official Voters’ Pamphlet. That pamphlet contained the

text of Initiative 350, an explanatory statement drafted by

the Attorney General, and arguments by proponents and

by opponents of the measure. In their arguments in the

pamphlet for the initiative the proponents stressed, inter

alia, the concepts of “forced busing” and the preservation

of neighborhood schools. In their arguments the opponents

stressed, inter alia, that the adoption of the initiative would

rescind Seattle’s desegregation plan and would significantly

increase racial segregation in Seattle, Tacoma and Pasco.

7.14 The Voters’ Pamphlet, the campaigns con-

ducted by supporters and opponents of Initiative 350,

newspaper editorials and articles, and other media coverage

and publicity, made clear to the electorate that Initiative

350 would require dismantling of The Seattle Plan and

would prohibit school district-directed assignment and

transportation of students to other than their nearest or

A-21

next nearest schools for the purpose of racially balancing

public schools in the State.

7.15 During the election campaign on Initiative 350,

CiVIC announced its own desegregation plan for Seattle.

This plan is known as “THE CiVIC PLAN.”

7.16 Initiative 350 allows voluntary desegregation,

i.e., the voluntary transfer assignment of students to

schools away from their neighborhoods.

7.17 A part of the strategy utilized by CiVIC to

terminate The Seattle Plan was to inform citizens outside

the Seattle area about “the problems of mandatory busing”

in Seattle.

7.18 During the campaign the proponents of Initia-

tive 350 represented that there would be no loss of school

district flexibility other than in busing for desegregation

purposes.

7.19 During 1978 there were 300 school districts in

the State of Washington. CiVIC campaign publicity sup-

porting Initiative 350 and speeches given by CiVIC

representatives during the election campaign assured peo-

ple in school districts throughout the state that “99°o of the

school districts in the state would not be affected by the

passage of 350.” Approximately one percent of the 300

school districts in the state are directly affected by

Initiative 350. Those school districts are plaintiffs in this

litigation: Pasco, Tacoma and Seattle.

7.20 Exhibit 58 contains CiVIC’s legal analysis of the

Initiative as published during the campaign by CiVIC.

Exhibit 58, pp. 7-21, is a copy of two opinion letters from

CiVIC'’s attorney. Component parts of Exhibit 58 were

widely circulated by CiVIC during the election campaign.

7.21 Some proponents of Initiative 350 asserted The

Seattle Plan would result in substantia! “white flight” and

thus make desegregation impossible in Seattle. They

asserted voluntary desegregation programs under Initiative

350 would prevent “white flight” and thus promote desegre-

gation.

7.22 The terms “busing,” “forced busing” and “man-

datory busing,” in the context of Initiative 350 were

synonymous with compulsory student school reassignment

A-22

and transportation for racial balancing or desegregation

purposes.

7.23 CiVIC campaign publicity supporting Initiative

350 made reference to the following: Initiative 350 and race

issues [Exs. 47, 46]; “forced busing” causes greater

segregation [Ex. 47, p. 1]; Seattle is not under a federal

court order to desegregate [Ex. 47, p. 2; Exs. 59, 60); “forced

busing” to desegregate the public schools has not worked in

other cities [Ex. 47, p. 2]; Initiative 350 “will eliminate”

Seattle’s “ability to use massive busing for desegregation

purposes” [Ex. 51, p. 2]; Initiative 350 guarantees that state

“funds are not used for forced busing of students based on

racial identification” [Ex. 51, p. 5]; racial imbalance [Exs.

59, 60]; forced busing [Tr. 544, 662, 715, 801; Ex. 47, pp. 1, 3;

Ex. 51, pp. 21, 24, 27; Ex. 52, p. 6; Exs. 53, 55, pp. 1-2; Ex. 56,

pp. 2-4; Ex. 57, pp. 5-6, 8, 13, 15; Exs. 59, 60, 61, 62, 64, 65,

66, 67}; integration [Tr. 539; Exs. 61, 62, 64, 65, 67]; and seg-

regation/desegregation [Tr. 539; Exs. 61, 62, 63, 64].

7.24 On November 7, 1978, Initiative 350 was

approved by the voters by a margin of approximately 66

percent statewide.

7.25 In Seattle, the unofficial vote in favor of the

measure was approximately 61 percent. In two Seattle

Legislative Districts—Legislative District 37 and Legisla-

tive District 43—Initiative 350 failed. In Legislative Dis-

trict 37, where a majority of voters are racial minorities, the

vote was approximately 61 percent against Initiative 350.

In Legislative District 43, the vote was approximately 54

percent against the Initiative.

7.26 Initiative 350 would have taken effect as law in

the State of Washington 30 days after the November 7

election, i.e., on December 7, 1978 had not this litigation

been initiated and a preliminary injunction issued.

7.27 The leadership of CiVIC has acted legally and

responsibly in its advocacy of Initiative 350. In

campaigning for the passage of Initiative 350 CiVIC has not

directed its appeals to the racial biases of the voters.

7.28 It is clear from the location of school buildings

and the attendance lines drawn around those buildings that

the Seattle School District has traditionally adhered to a

A-23

policy of the assignment of children to their neighborhood

schools.

7.29 CiVIC, its agents and consultants deliberately

took steps to avoid race becoming an issue in the campaign,

since, they felt, its interjection into the campaign would

have lost support for the initiative.

7.30 Many parents and voters who support neighbor-

hood schools do so in a sincere belief in the value of

neighborhood schools irrespective of the racial distribution

of the students attending those schools.

7.31 A neighborhood school policy has certain

advantages in that it facilitates community and parental

input and support for educational and extracurricular pro-

grams; it minimizes safety hazards to children in reaching

school; it reduces the cost of transportation; it eases the

task of student assignment through the use of easily

determined standards; and it makes for better home-school

communication.

7.32 Parents consider the quality and location of

neighborhood schools an important factor when deciding

whether or not to purchase, rent or lease a home in a given

community.

7.33 Those voters who voted for Initiative 350 were

not all motivated to do so by the same reason. Voters were

motivated to do so by a number of reasons. It is impossible

to ascertain all of those reasons nor to determine the

relative impact of those reasons upon the electorate.

8. General Effects of Initiative 350 on Plaintiff

School Districts

8.1 Implementation of Initiative 350 will compel

those school districts which have adopted compulsory stu-

dent assignment as a means of racially balancing their

schools, to abandon all those efforts which cannot be

accomplished by the transfer of students to their nearest or

next nearest schools. Those school districts will in

consequence become more racially imbalanced than they

are at present.

8.2 If permitted to become law, Initiative 350 will

remove from local school districts their existing authority

A-24

under state law (declared in Citizens Against Mandatory

Bussing v. Palmason, 80 Wash.2d 445, 495 P.2d 657 (1972))

to assign students to other than their nearest or next

nearest schools in order to improve racial balance.

8.3 Except for racially-balancing purposes, Initiative

350 permits local school districts to assign students other

than to their nearest or next nearest schools for most, if not

all, of the major reasons for which students are at present

assigned to schools ot her than their nearest or next nearest

schools.

8.4 Section 3 of Initiative 350 lists seven tools or

methods which educational authorities are specifically pro-

hibited from utilizing to require attendance by students at

schools other than their nearest or next nearest schools.

Each of those seven tools or methods is an element of The

Seattle Plan.

8.5 It would be impossible to effect a racial balance of

Seattle schools without resort to some or all of the tools or

methods prohibited by Section 3 of Initiative 350.

8.6 Theseven tools or methods prohibited by Section

3 of Initiative 350 are commonly found in public school

racial desegregation plans put into effect in this country

during the past 25 years.

8.7 Section 6 of Initiative 350 requires a judicial

declaration of duty to desegregate before a local school

district may with assurance mandatorily reassign students

to other than their nearest or next nearest schools for racial

balancing purposes. No other aspect of mandatory student

assignment is burdened with this requirement.

8.8 Except for the busing of students for racial

balancing purposes, almost all of the busing of students

currently taking place in this state is permitted by

Initiative 350.

9. Effects of Initiative 350 on Pasco

9.1 Because of the housing patterns in Pasco, it is

doubtful that the Pasco schools can be racially balanced

within the “nearest or next nearest” restrictions of

Initiative 350.

10. Effects of Initiative 350 on Tacoma

A-25

10.1 If implemented, Initiative 350 will make it

impossible for Tacoma schools to maintain their present

racial balance.

11. Effects of Initiative 350 on Seattle

11.1 If implemented, Initiative 350 will prevent the

racial balancing of a significant number of Seattle schools

and will cause the school system to become more racially

imbalanced than it presently is.

11.2 If subject to the limitations of Initiative 350, the

Seattle schools cannot attain the goal of racial balancing set

by The Seattle Plan.

11.3. It is impossible at this time to know or to predict

whether The Seattle Plan will cause more or less movement

of white families from the Seattle School District than

would occur under Initiative 350. Under Initiative 350,

however, there is certain to be movement of white parents

away from those residential areas where there is a

preponderance of minority families.

12. Supplemental Findings

(The numbers of these supplemental findings

indicate the sections in which these findings

should fall.)

3.1(a) The adverse effects of racially imbalanced

schools fall most heavily upon minority students.

8.9 Initiative 350 does not permit a school board to

assign students for the purpose of remedying de jure

segregation in the absence of a court declaration or order

requiring the board to do so.

8.10 Initiative 350 does not permit a local commu-

nity which desires a racially-integrated educational experi-

ence for its students to cause students to be assigned to

schools other than their nearest or next nearest schools in

order to accomplish that purpose in the absence of a court

declaration or order requiring the school board of that

district to do so.

From the foregoing Findings of Fact, the Court draws

the following:

A-26

CONCLUSIONS OF LAW

1. The jurisdiction of this Court exists under United

States Code Title 28, Sections 1331 and 1343.

2. This action presents questions of actual contro-

versy between the parties involving substantial legal and

constitutional issues as to the validity of Initiative 350.

3. Initiative 350 is unconstitutional in that it denies

equal protection of the laws to racial minorities in

contravention of the Fourteenth Amendment to the United

States Constitution in the following respects:

1. It creates an impermissible racial classification by

forbidding mandatory student assignments for racial

reasons while _—— . such assignments for nm

poses unrelated to race. Hunter v. Erickson, 393 U.S.

385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969); 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). No

compelling state interest justifies that racial classifica-

tion.

2. A racially discriminatory intent or purpose was

one of the factors which motivated the adoption of the

initiative. Washington v. Davis, 426 U.S. 229, 96 S.Ct.

2040, 48 L.Ed.2d 597 (1976); Village of Arlington

Heights v. Metropolitan Housing Develop. Corp., 429

U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977);

Personnel Administrator of Massachusetts v. Feeney,

39 CCH S.Ct.Bull. 2918 (June 5, 1979).

3. It is overly inclusive in that it prohibits a school

district from roe gpm a mandatory student

assignment program even though the school district

may be under a constitutional duty to eliminate

segregation. North Carolina Board of Education v.

Swann, 402 U.S. 43, 91 S.Ct. 1284, 28 L.Ed.2d 586

(1971); Green v. County School Board of New Kent

County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716

(1968); San Francisco Unified Sch. Dist. v. Johnson,

3 Cal.3d 937, 92 Cal. Rptr. 309, 479 P.2d 669 (1971).

4. Plaintiffs are entitled to a declaratory judgment

declaring Initiative 350 to be unconstitutional.

5. Plaintiffs are entitled to a permanent injunction

against the enforcement of the provisions of Initiative 350

by defendants or any of their instrumentalities, agents or

employees.

A-27

MEMORANDUM OPINION

I am filing this memorandum opinion in conjunction

with my findings of fact and conclusions of law in order to

spell out the reasoning behind my conclusions.

Although Initiative 350 was adopted by a referendum

vote, it is clear that the sovereignty of the people is subject

to constitutional limitations just as are legislative enact-

ments. Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21

L.Ed.2d 616 (1969). For that reason the initiative is

necessarily subject to the same scrutiny that it would be

had it been adopted by the legislature.

After considering all of the evidence and all applicable

law, I am compelled to find Initiative 350 unconstitutional

upon several grounds: (1) it forbids mandatory student

assignments for racial reasons but permits such student

assignments for purposes unrelated to race, (2) a racially

discriminatory purpose was one of the factors which caused

Initiative 350 to be adopted, and (3) the initiative is overly

inclusive in that it permits only court-ordered busing of

students for racial purposes even though a school board

may be under a constitutional duty to do so even in the

absence of a court order.

In making the finding that the initiative is

unconstitutional because it permits busing for non-racial

reasons but forbids it for racial reasons, I rely primarily

upon 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).

In Hunter the electorate of the City of Akron amended

the charter of that city to provide that any ordinance

enacted by the city council dealing with racial, religious or

ancestral discrimination in housing would not become

effective unless approved by a majority of the city voters.

The charter imposed this requirement of voter approval

upon no other type of ordinance. The Supreme Court found

this amendment to be a denial of the equal protection of the

laws in that it created an explicitly racial classification by

treating racial discrimination in housing differently from

all other matters relating to housing. By making it more

A-28

difficult for minorities to secure the enactment of an

ordinance dealing with racial discrimination, the charter

placed burdens upon racial minorities within the govern-

mental process that it did not place upon other citizens. It

hence denied to those minorities the equal protection of the

laws.

In Lee v. Nyquist a three-judge court applied the

Hunter rationale to strike down a New York statute which

provided as follows:

“Except with the express approval of a board of

education * * * a majority of the members of

such board having been elected, no student shall be

assigned or compelled to attend any school on account

ofrace * * *”

The court found that while the State Commissioner of

Education had broad supervisory powers over local public

education with regard to all matters affecting educational

policy, the statute singled out for different treatment the

assignment of students on account of race. The court stated

at page 719:

“The statute thus creates a clearly racial classification,

treating educational matters involving racial criteria

differently from other educational matters and mak-

ing it more difficult to deal with racial imbalance in the

public schools.”

The court added:

“We can conceive of no more compelling case for the

application of the Hunter principle.”

The provisions of Initiative 350 relevant to this

opinion are as follows:

Section 1. * * * no school board * * * shall

directly or indirectly require any student to attend a

school other than the school which is geographically

nearest or next nearest the student’s place of residence

* * * except in the following instances:

(1) Ifastudent requires special education, care or

guidance * * *

(2) If there are health or safety hazards * * *

or physical barriers or obstacles * * * between the

A-29

student’s place of residence and the nearest or next

nearest school; or

(3) If the school nearest or next nearest to his

place of residence is unfit or inadequate because of

overcrowding, unsafe conditions or lack of physical

facilities.

Section 3. For purposes of section 1 of this act

“indirectly require any student to attend a school

other than the school which is geographically nearest

or next nearest the student’s place of residence

* * *” includes, but is not limited to, implement-

ing, continuing, pursuing, maintaining or operating

any plan involving (1) the redefining of attendance

zones; (2) feeder schools; (3) the re-organization of the

grade structure of the schools; (4) the pairing of

schools; (5) the merging of schools; (6) the clustering of

schools; or (7) any other combination of grade

restructuring, pairing, merging or clustering: PRO-

VIDED, That nothing in this chapter shall limit the

authority of any school district to close school facili-

ties.

Section 4. For the purposes of section 1 of this act,

“special education, care or guidance” includes the edu-

cation, care or guidance of students who are physically,

mentally or emotionally handicapped.

Section 5. The prohibitions of this chapter shall not

preclude the establishment of schools offering special-

ized or enriched educational programs which students

may voluntarily choose to attend, or of any other

voluntary option offered to students.

Section 6. This chapter shall not prevent any court of

competent jurisdiction from adjudicating constitu-

tional issues relating to the public schools.

Sections 1 and 4 of the initiative expressly provide that

a schoo! board may require a student to attend any school,

even though not the one nearest or next nearest his place of

residence, for a variety of reasons unrelated to race. A

school board may require a student to attend whatever

school it chooses if the student is in need of special

education of any kind or if the student is suffering from any

physical, mental, or emotional handicap or if there are

health or safety hazards connected with his attending his

nearest or next nearest school or if the nearest or next

A-30

nearest school is inadequate by reason of overcrowding or

the lack of physical facilities.

The foregoing reasons for mandatory student assign-

ment comprise one major exception the primary reasons

that students are at the present time being assigned to

schools other than their neighborhood schools. That one

major exception is the assignment of students for racial

balancing purposes. Student assignment for that purpose is

not permitted by Initiative 350.

By omitting assignments for racial reasons from the

list of permitted categories of student assignments, Initia-

tive 350 effects implicitly the same type of racial

classification which the New York statute in Lee v. Nyquist

effected expressly.

Although the initiative does not explicitly disallow

student assignment for racial reasons, as did the New York

statute considered in Lee v. Nyquist, it achieves the same

purpose by enumerating those purposes for which there

may be student assignment and omitting from that

enumeration the assignment of students in order to achieve

racial balance. This is as effective a racial classification as is

a statute which expressly forbids the assignment of

students for racial balancing purposes. It is no less a denial

of the equal protection of the law to minorities.

As a second ground for holding Initiative 350 to be

unconstitutional, I find that a racially discriminatory pur-

pose was one of the factors which motivated the conception

and adoption of the initiative.

In Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48

L.Ed.2d 597 (1976), the Supreme Court held that a

governmental action was not a denial of equal protection

simply because that action had a racially disproportionate

impact. For the action to be unconstitutional the Court held

that there must be proof that there was in addition a

racially discriminatory intent or purpose.

It is, of course, impossible to ascertain the subjective

intent of those who enacted Initiative 350. It was a measure

adopted by the electorate at the ballot box. Unlike the

normal legislative enactment there were no committee

hearings or floor debates to cast light upon the intent of the

enactors.

A-31

I believe that I can safely assume that a great many

voters were motivated solely by a conviction that it was in

the best interests of all children that they be permitted to

attend their neighborhood schools; that there were many

voters who were motivated solely by a desire to maintain as

much racial separation as possible in the public schools; and

that in between there were many voters who voted with

varying degrees of mixed motives.

In deciding whether a racially discriminatory intent or

purpose lay behind the adoption of Initiative 350, I cannot

base my judgment upon what I believe I may “safely

assume” as to the subjective intent of the voters. As to that

subjective intent the secret ballot raises an impenetrable

barrier.

The fact that it is impossible to determine whether

there was subjectively a racially discriminatory intent or

purpose does not, however, relieve this court of the burden

of determining whether there was in fact such an intent or

purpose behind the adoption of Initiative 350. One must

simply look elsewhere than within the minds of the voters.

Two Supreme Court cases, Village of Arlington

Heights v. Metropolitan Housing Develop. Corp., 429 U.S.

252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) and Personnel

Administrator of Massachusetts v. Feeney, 39 CCH

S.Ct.Bull. 2918 (June 5, 1979), give guidance to a court in

determining in an objective fashion whether a discrimina-

tory intent or purpose was a motivating factor in

governmental action.

In Arlington Heights three black petitioners and a

development corporation challenged a denial by the village

of an application for the rezoning of a tract of land from a

single-family to a multiple-family classification. The rezon-

ing was assertedly to enable the developer to build a

racially-integrated, low and moderate income housing

project upon the land. In trying to determine whether there

was a racially discriminatory intent in the denial of the

application, the Court considered five factors:

a) The impact of the action, i.e., whether it bore more

heavily upon one race than upon another;

b) The historical background of the decision;

A-32

c) The specific sequence of events leading to the deci-

sion;

d) The procedural and substantive departures from

the norm in connection with the decision or action; and

e) The legislative or administrative history of the

decision or action.

In considering these five factors, the Court found that

the tract of land had been zoned for single-family

residences since 1959 when the village first adopted its

zoning map; that single-family homes surrounded the tract

of land in question; that the village had always been

committed to single-family homes as its dominant residen-

tial land use; that there had been no departure from normal

procedure in the consideration of the application; and that

the zoning denial did not appear substantively improper in

light of all the information which was before the zoning

board. Based upon a consideration of those factors, the

Court held that no discriminatory intent or purpose had

been demonstrated in the denial of the rezoning applica-

tion.

In Feeney the Court again applied the Arlington

Heights factors. In that case the Court upheld a veterans’

preference law in Massachusetts that had been challenged

on the ground that it discriminated against women. The

Court examined the relevant legislative history and found

that a veterans’ preference was first declared by

Massachusetts in 1884 and that from its inception the law

established a preference for veterans over nonveterans, not

a preference for men over women. The Court analyzed past

legislative actions with respect to military service and

found that veterans were overwhelmingly male largely

because women had never been subject to a military draft.

Given the sexual neutrality of the statutory history and the

sexual one-sidedness of military service, the Court found

that an intent to discriminate against women had not been

a motivating factor in the enactment or extension of the

veteran’s preference law in Massachusetts and that it was in

consequence not a denial of equal protection.

Examining Initiative 350 in light of the factors

articulated by the Supreme Court in Arlington Heights and

A-33

Feeney, one is led to the conclusion that a racially

discriminatory purpose was in fact a motivating factor in

the passage of Initiative 350.

The first consideration is that of the impact of the

action. While it is true that a statute cannot be held uncon-

stitutional solely because it has a racially disproportionate

impact, the impact of the action must be weighed in

determining whether there was discriminatory intent. Jus-

tice Stevens, in his concurring opinion in Washington v.

Davis, observed at 426 U.S. page 253, 96 S.Ct. at page 2054:

“Frequently the most probative evidence of intent will

be objective evidence of what actually happened

rather than evidence describing the subjective state of

mind of the actor. For normally the actor is presumed

a intended the natural consequences of his

eeds.”

In Feeney the Court noted that discriminatory pur-

pose implied more than an awareness of the consequences

of one’s actions but added that when adverse consequences

of a law upon a minority are inevitable “a strong inference

that the adverse effects were desired can reasonably be

drawn.” (n. 25, p. 2942)

It appears from the evidence that the overall education

of students in a school system suffers when the schools of

that system are racially imbalanced, that the greater the

imbalance the greater the impairment and that there is a

disproportionate impact upon the education of minority

children when their schools are racially imbalanced.

Beyond question the informed voters of the state, and

the voters in general in Seattle, were wel! aware that the

passage of Initiative 350 would terminate the efforts which

had been taken by school boards of the state to balance

schools racially by the mandatory busing of students. Given

the segregated housing patterns of the three plaintiff school

districts, the termination of those efforts could only result

in racially-imbalanced schools in those districts and a dis-

proportionate impact upon minority students. This impact

of Initiative 350 was a certainty, in marked contrast to the

uncertain and speculative impact of the verbal skills test

used to select police recruits in Washington v. Davis and

A-34

the denial of the rezoning application in Arlington Heights.

The second and third factors utilized by the Court in

Arlington Heights were the historical background of the

decision and the specific sequence of events leading to the

decision. In Washington v. Davis, Arlington Heights and

Feeney, the Court examined all events surrounding the

action in question: legislative enactments, board hearings,

floor debates, and historical circumstances at the time each

action was taken. In each of these situations, the Court

found a race or gender-neutral pattern of conduct, with no

evidence that would suggest a discriminatory purpose as a

motivating factor in the decision-making process.

The same cannot be said with respect to the adoption

of Initiative 350 inasmuch as it was conceived, drafted,

advocated and adopted for the specific purpose of

overriding the decision of the Seattle School Board to

balance Seattle schools racially by means of student

assignments. If implemented, the initiative will achieve

that purpose. One must assume therefore that the voters, in

adopting the initiative, intended to accomplish the very

purpose for which the initiative was designed and intended

therefore the disproportionate racial impact which its

implementation will have.

The very words of the initiative reveal the intent to

frustrate the plan of the Seattle School Board. Section 3 of

the initiative expressly forbids the use of the entire panoply

of tools or methods adopted by the board in its plan for

racially balancing the Seattle schools. Except for voluntary

student assignment options, f‘ection 3 forbids every major,

effective technique for achieving racial balance.

The historical background and sequence of events

leading up to the adoption of the initiative reveals a whole

series of lawsuits and a recall election, the objective of

which was to prevent the racial balancing of Seattle schools

by means of mandatory student assignments. It reveals,

too, that the adoption of the plan of racial balancing by the

Seattle School Board was the event which gave rise to the

thought of a statewide initiative as a means of thwarting

that decision.

The court in Arlington Heights also considered proce-

A-35

dural and substantive departures from the norm as factors

bearing upon intent or purpose.

In the adoption of Initiative 350 there was a marked

departure from the procedural norm in that an

administrative decision of a subordinate local unit of

government, the Seattle School Board, was overridden in

a statewide initiative by voters, a great number of whom

were entirely unaffected by that plan and who could not

conceivably be affected by any plan for the mandatory

assignment of students for racial balancing purposes.

It was also a marked departure from the norm, in

terms of historical and current practices of local school

districts, for the autonomy of school boards to be restricted

relative to the assignment of students. Traditionally, stu-

dent assignment has been a proper function of school

boards. Local autonomy of school districts has long been

recognized as a vital national tradition, Milliken v, Bradley,

418 U.S. 717, 94 8.Ct, 3112, 41 L.Bd.2d 1069 (1974), Even

the New York statute in Lee v, Nyquist did not attempt to

proscribe the student assignment powers of elected school

boards. Yet Initiative 350 reaches all school boards, This

state preemption of local autonomy, when directed at racial

concerns, is clearly a departure from prior state practice.

The racially disproportionate impact of the initiative

when coupled with its historical background, the sequence

of events leading to its adoption and the departure from the

procedural norm demonstrate that a racially discrimina-

tory intent or purpose was at least one motivating factor in

the adoption of the initiative.

Even if Initiative 350 were not unconstitutional on its

face and even if racially discriminatory purpose were not

one of the motivating factors in its formation and purpose

the initiative must still fall by reason of the breadth of its

impact,

I find that Initiative 350 is overly inclusive in that it

prohibits school assignments to achieve racial balance even

in a school district where there is de jure segregation, that

is, segregation caused by prior governmental action,

School boards of districts in which there is de jure

segregation are charged with an affirmative duty to take

A-36

whatever steps might be necessary to eliminate that

segregation. North Carolina State Board of Education v.,

Swann, 402 U.S, 43, 91 S.Ct, 1284, 28 L.Ed.2d 586 (1971);

Green v, County School Board of New Kent County, 391

U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). A statute

which proscribes one of the means, if not the only means, of

achieving that end must yield to constitutional re-

quirements. San Francisco Unified Sch, Dist. v. Johnson,

3 Cal.3d 937, 92 Cal.Rptr. 309, 479 P.2d 669, 680 (1971).

Initiative 350 makes no provision for a school board

which may have a constitutional obligation to remedy de

jure segregation. The initiative proscribes a school board's

use of student assignment in order to achieve racial balance

under any circumstances. Any school board which is of the

opinion that de jure segregation exists within its district is

placed in the untenable position of being in violation of con-

stitutional requirements or of being in violation of the

prohibitions of Initiative 350, Its only recourse under the

initiative is to initiate litigation in order to have a court

declare the course of action that it should take.

Plaintiffs contend that Initiative 350 is violative of the

Washington State Constitution. As to that contention, I

make no finding.

Because Initiative 350 is violative of the United States

Constitution, plaintiffs are entitled to a permanent injunc-

tion against the enforcement of Initiative 350 by

defendants, their instrumentalities, agents or employees.

B-1

APPENDIX B

Searrie Scuoon District No, | et al., Plaintiffs-Appellees,

Vv.

THE STATE OF WASHINGTON et al, Defendants-Appellants,

Nos, 79-4643, 79-4655, 79-4676, 79-4740,

79-4801 and 79-4802,

United States Court of Appeals,

Ninth Circuit

Argued and Submitted June 30, 1980,

Decided Dec, 16, 1980,

Before Ery, Wricut and Newson, Circuit Judges.

Evy, Circuit Judge:

This cause comes before the Court in an unusual

posture. Local elected school authorities, who so often in

the past in other jurisdictions have resisted court-ordered

integration, have in this instance invoked the jurisdiction

of the federal courts because their self-generated efforts to

achieve racial balance in the public schools have been

hindered by governmental action, Successful, locally-for-

mulated public school desegregation programs in Washing-

ton are today threatened with extinction through enforce-

ment of a Washington State statute by State officials.

The Seattle, Tacoma, and Pasco, Washington, school

boards, in an effort to correct substantial racial imbalance

in the public schools in those communities, have in recent

years implemented a series of voluntary and mandatory

desegregation programs, Because of persistently segregated

residential housing patterns in the three metropolitan

areas, these desegregation plans have necessarily entailed

some assignment of students to schools other than those

closest to their homes. The success of these programs has

been manifest, and the “Seattle Plan” in particular has

been hailed as a model for other large cities,

The continued efficacy of these programs became

B-2

imperiled, however, in November 1978, when Washington

voters adopted ballot Initiative 350 by a substantial

statewide margin. Initiative 350 provides, in pertinent part,

that:

no school board * * * shall directly or indirectly

require any student to attend a school other than the

school which is geographically nearest or next nearest

the student’s place of residence * *

In November 1978, after the State threatened enforce-

ment of Initiative 350, the three school districts filed a

complaint in the District Court seeking a declaratory

judgment that the statute was unconstitutional under the

equal protection clause of the Fourteenth Amendment. In

December 1978, prior to certification of Initiative 350 as a

state law pursuant to Wash.Rev.Code § 29.62.130 (1974),

the District Court issued a temporary restraining order

barring enforcement. On February 9, 1979, the District

Court issued a preliminary injunction continuing to block

implementation of the statute and at the same time granted

the motion of eight Washington public interest groups to

intervene. Also on February 9, the District Court bifurcated

the litigation. Phase I, from which this appeal is taken, was

limited to the question of the constitutionality of Initiative

350. Phase II issues, which were not reached at trial because

the District Court held that the statute violated the

Fourteenth Amendment, derive from the intervenors’ claim

that the school districts operate unconstitutional dual

school systems.

After an extended trial, District Judge Voorhees, on

June 15, 1979, issued a Memorandum Opinion, together

with Findings of Fact and Conclusions of Law, declaring

Initiative 350 unconstitutional. Seattle School Dist. No. 1

v. State of Washington, 473 F.Supp. 996 (W.D. Wash.

1979). He concluded that Initiative 350 was unconstitu-

tional on three distinct grounds:

(1) it forbids mandatory student assignments for racial

reasons but permits such student assignments for pur-

poses unrelated to race, (2) a racially discriminatory

purpose was one of the factors which caused Initiative

350 to be adopted, and (3) the initiative is overly

B-3

inclusive in that it permits only court-ordered busin

of students for racial purposes even though a schoo

may be under a constitutional duty to do so even

in the absence of a court order.

473 F.Supp at 1012.

On August 29, 1979, the District Court issued a final

order declaring Initiative 350 unconstitutional and perma-

nently enjoining its enforcement. Also on August 29, the

District Court issued a separate order denying the school

districts’ and intervenors’ separate motions for attorney's

fees.

Appellants, the State of Washington and various state

officials, appeal from the District Court judgment declaring

Initiative 350 unconstitutional. Appellees, the three Wash-

ington school districts and intervenors, cross-appeal from

the order denying their motion for attorney’s fees. One of

the intervening appellees, East Pasco Neighborhood Coun-

cil, also cross-appeals from the denial of its motion that the

Pasco School District be dismissed as a plaintiff.' The

United States appeared, and continues to appear, as an

intervenor in support of the plaintiffs-appellees.

'The Council raises a threshold jurisdictional question, arguing that

because the State has not threatened to enforce Initiative 350 against

Pasco School District (“Pasco”), it does not have standing to challenge

the statute under the Declaratory Judgment Act, 28 U.S.C. § 2201 (1979).

We disagree. It is true that claims alleging the unconstitutionality of a

statute are normally non-justiciable in the absence of immediate threat-

ened prosecution. Poe v. Ullman, 367 U.S. 497, 501-09, 81 S.Ct. 1752,

1754-59, 6 L.Ed.2d 989 (1961). Nevertheless, if the circumstances of the

dispute provide sufficient guarantees that a genuine case or controversy

exists, a federal court may assume jurisdiction even in the absence of a

direct threat of enforcement against the plaintiff. See Babbit v. United

Farm Workers Nat'l Union, 442 U.S. 289, 297-305, 99 S.Ct. 2301, 2308-

12, 60 L.Ed.2d 895 (1979); Carey v. Population Servs. Int'l, 431 U.S, 678,

682-84, 97 S.Ct. 2010, 2014-15, 52 L.Ed.2d 675 (1977); Regional Rail

Reorganization Act Cases, 419 U.S, 102, 136-48, 95 S.Ct, 335, 354-61, 42

L.Ed.2d 320 (1974); Steffel v. Thompson, 415, U.S. 452, 458-60, 94 S.Ct.

1209, 1215-16, 39 L.Ed.2d 505 (1974); Lake Carriers’ Ass'n v.

MacMullan, 406 U.S. 498, 504-08, 92 S.Ct. 1749, 1754-56, 32 L.Ed.2d 257

(1972); Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228

(1968).

In this case, four factors indicate that an actual case or controversy

exists between Pasco and the State despite the absence of a specific

threat, as against Pasco, to enforce Initiative 350. First, this is a highly

B-4

I. Constitutionality of Initiative 350--The Appeal

We find it unnecessary to discuss the District Court's

holding that Initiative 350 was motivated by a

discriminatory purpose and is unconstitutionally over-

broad because we conclude that the statute was correctly

struck down as an impermissible legislative classificat‘on

based on racial criteria. Hunter v. Erickson, 393 U.S. 385,

391-93, 89 S.Ct. 557, 560-61, 21 L.Ed.2d 616 (1969); Lee v.

Nyquist, 318 F.Supp. 710, 718-20 (W.D.N.Y. 1970), aff'd,

402 U.S. 935, 91 S.Ct. 1618, 29 L.Ed.2d 105 (1971).

We note at the outset the operative legal and political

effect of Initiative 350. As the District Court below said, the

statute “was conceived, drafted, advocated and adopted for

the specific purpose of overriding the decision of the Seattle

School Board to balance Seattle schools racially by means

of student assignments.” 473 F.Supp. at 1015.2 We agree

with the District Court that

specific statute, clearly applicable to Pasco’s student assignment poli-

cies. See Doe v, Bolton, 410 U.S. 179 at 187-89, 93 S.Ct. 739 at 745-46, 35

L.Ed.2d 201; Crossen v. Breckenridge, 446 F.2d 833, 838 (6th Cir. 1971).

Second, Initiative 350 is a recent statutory enactment and not a law

which has lain moribund for years. See Poe v, Ullman, 367 U.S, at 501, 81

S.Ct. at 1754; Rincon Band of Mission Indians v, County of San Diego,

495 F.2d 1, 12 (9th Cir.), cert. denied, 419 U.S, 1008, 95 S.Ct. 328, 42

L.Ed.2d 283 (1974) (Browning, J., dissenting). Third, there have been

immediate threats of enforcement against parties whose legal status

under Initiative 350 is identical to that of Pasco, ie., the Seattle and

Tacoma School Districts. See Steffel v. Thompson, 415 U.S. at 459, 94

S.Ct. at 1215 (prosecution of plaintiff's companion); Carey v, Population

Servs, Int'l, 431 U.S, at 684 n.3, 97 S.Ct, at 2015 n.3 (prosecution under

predecessor statute), Fourth, because this is a civil rather than a criminal

statute, it imposes an affirmative duty to comply. “[I]f appell[ees| are

now under such an obligation, that in and of itself makes their attack on

the validity of the law a live controversy, and not an attempt to obtain an

advisory opinion,” Lake Carriers Ass'n v. MacMullan, 406 U.S, at 507, 92

S.Ct. at 1755 at least where there is an indication, as in this case, that the

statute will be enforced in the future, /d. See also Independent Bankers

Ass'n v. Heimann, 613 F.2d at 1164, 1167 (D.C, Cir, 1979); Southern Pace,

Transp. Co. v, Redden, 458 F.Supp. 593, 599-60 (D, Or, 1978),

‘Judge Voorhees’ Finding of Fact No, 8.2 was that “Initiative 350

will remove from local school districts their existing authority under

state law * * * to assign students to other than their nearest or

next nearest schools in order to improve racial balance.” 473 F.2d at 1010

(Citing Citizens Against Mandatory Bussing v, Paimason, 80 Wash.2d

445, 495 P.2d 657 (1972) (en bane)). This finding is supported by the

evidence and the conclusion is not clearly erroneous, Fed.R. Civ. P, 52(a),

B-5

[aJlthough the initiative does not explicitly disallow

student assignment for racial reasons, as did the New

York statute considered in Lee v. Nyquist, it achieves

the same purpose by enumerating those purposes for

which there may be student assignment and omitting

from that enumeration the assignment of students in

order to achieve racial balance. This is as effective a

racial classification as is a statute which expressly

forbids the assignment of students for racial balancing

purposes.

Id, at 1013.’ Initiative 350 embodies a constitutionally-sus-

pect classification based on racial criteria because it

legislatively differentiates student assignment for purposes

of achieving racial balance from student assignment for any

other significant reason.'

‘Initiative 350 provides in its entirety as follows:

Section 1. Notwithstanding any other provision of law, after

the effective date of this act no schoo! board, school district,

educational service district board, educational service district, or

county committee, nor the superintendent of public instruction, nor

the state board of education, nor any of their respective employees,

agents or delegates shall directly or indirectly require any student

to attend a school other than the school which is geographically

nearest or next nearest the student's place of residence within the

school district of his or her residence and which offers the course of

study pursued by such student, except in the following instances:

(1) Ifa student requires special education, care or guidance, he

may be assigned and transported to the school offering courses and

facilities for such special education, care or guidance;

(2) If there are health or safety hazards, either natural or man

made, or physical barriers or obstacles, either natural or man made,

between the student's place of residence and the nearest or next

nearest school; or

(3) If the school nearest or next nearest to his place of residence

is unfit or inadequate because of overcrowding, unsafe conditions or

lack of physical facilities.

Section 2, In every such instance where a student is assigned

and transported to a school other than the one nearest his place of

residence, he shall be assigned and transported to the next

geographically nearest school with the necessary and applicable

courses and facilities within the school district of his or her resi:

dence.

Section 3. For purposes of section | of this act, “indirectly

require any student to attend a school other than the school which |s

geographically nearest or next nearest the student's place of resi:

dence within the school district of his or her residence and which

offers the course of study pursued by such student” includes, but is

not limited to, implementing, continuing, pursuing, maintaining or

The constitutional framework established in Hunter v,

Erickson and Lee v, Nyquist dictates that Initiative 350

must fall, In Hunter, the Supreme Court invalidated an

amendment to the Akron City charter requiring that any

fair housing ordinance passed by the city council be

approved by a majority of the city voters prior to becoming

law. The Court struck down the amendment on equal

protection grounds because it created “an explicitly racial

operating a involving (1) the redefining of attendance zones;

(2) feeder schools; (4) the egueetee of the grade structure of

the schools; (4) the pairing of achools; (5) the merging of schools; (6)

the clustering of schools; or (7) any other combination of grade

restructuring, pairing, merging or clustering: PROVIDED, That

nothing in this chapter shall limit the authority of any school

district to close school facilities,

Section 4, For the purposes of section | of this act “special

education, care or guidance” includes the education, care or guid.

ance | students who are physically, mentally or emotionally handi-

capped,

Section 5, ‘The prohibitions of this chapter shall not preclude

the establishment of schools offering specialized or enriched educa-

tional programs which students may voluntarily choose to attend, or

of any other voluntary option offered to students,

tion 6, ‘This chapter shall not prevent any court of compe:

tent jurisdiction from adjudicating constitutional issues relating to

the public schools,

Section 7, Sections | through 6 of this act are added to chapter

223, Lawa of 1969 ex, seas, and shall constitute a new chapter in Title

28A RCW,

Section 8, If any provision of this act, or ite application to any

person or clreumstance is held invalid, the remainder of the act, or

the applicat’ . of the provision to other persons or circumstances

is not affected,

‘dudge Voorhees’ Finding of Fact No, 8.5 was that “(e)xeept for

racially balancing purposes, Initiative 350 permits local school districts

to assign students other than to their nearest or next nearest schools for

moat, if not all, of the major reasons for which students are at present

assigned to schools other than their nearest or next nearest schools,” 478

—_ at 1010,

at the statute does not contain an explicit racial classification is

of no consequence if the law is not neutral, In Personnel Adm'r of Masa.

v, Feeney, 442 U.S, 256, 99 8.Ct, 2282, 60 L,Bd.2d 870 (1979), the

Supreme Court clearly indicated that “{i|f the (challenged statutory]

classification itself, covert or overt, is not based upon gender, the second

uestion is whether the adverse effect reflects invidious gender-based

iscrimination,” /d, at 274, 99 8.Ct, at 2203 (emphasis added), Because,

as discussed above, Initiative 350 contains a covert racial classification,

it is not a neutral law and the disparate impact analysis does not apply,

B-7

classification treating racial housing matters differently

from other racial and housing matters,” 393 U.S, at 389

5.Ct, at 559,

The Court in Hunter also noted that the amendment

“not only suspended the operation of the existing ordinance

forbidding housing discrimination,” but also restructured

the existing political process to require the approval of the

electorate before any future ordinance could take effect, /d,

at 389-90, 89 S.Ct, at 559-60, By so altering the

governmental structure on matters concerning a racial dis-

tinction, making it more difficult for minorities to secure

favorable legislation, the amendment placed unconstitu-

tional “special burdens on racial minorities within the

governmental process,” /d, at 391, 89'5,Ct, at 560, We agree

that “(t]he principle of Hunter is that the state creates an

‘explicitly racial classification’ whenever it differentiates

between the treatment of problems involving racial matters

and that afforded other problems in the same area,” Lee v,

Nyquist, 318 F.Supp, at 718,

In Lee, a three-judge district court applied Hunter to

strike down a New York statute that prohibited racially-

conscious student assignment by appointed school boards,

but not by elected boards, The statute was

unconstitutional, the court said, because it “creates a

clearly racial classification, treating educational matters

involving racial criteria differently from other educational

matters and making it more difficult to deal with racial

imbalance in the public schools,” 318 F.Supp, at 719,

Applying these principles here, it is manifest that

Initiative 350 both creates a constitutionally-suspect racial

classification and radically restructures the political

process of Washington by allowing a state-wide majority to

usurp traditional local authority over local school board

educational policies, Initiative 350 implicitly effects pre-

cisely the same classification which was made explicit in

Lee; the law treats a single purpose for student assignment,

racial balancing, differently from all others, Though Initia-

tive 350 creates the differential classification indirectly by

omission, there is no basis for distinguishing it as a matter

of constitutional law from the explicit classifications of

8-8

Hunter and Lee, Unless this Court affirms the relevaney of

the constitutional analysis applied in /unter and Lee to

this case, the guarantee of equal protection of lawa will

hecome a hollow shell, Lawmakers who seek to establish

impermissible racial classifications will in the future be

able to achieve, by artfully worded statutes like Initiative

350, constitutionally forbidden goals,

The racial classification embodied in the statute is

invlaid unless it Is the least drastic means required to

achieve a compelling state interest, MeLaughlin v, Florida,

379 U.S, 184, 102-096, 856 S.Ct, 288, 288-00, 19 L.Bd.2d 222

(1964), See Hunter v, Erickson, 898 U.S, at 891-98, 89 S.Ct,

at 560-61; Lee v, Nyquist, 318 F.Supp, at 720, We have no

reason to dispute the District Court's finding that the

legislative purpose of Initiative 350 was to restore the

Seattle School District's traditional policy of assigning atu.

dents to their neighborhood schools,’ However, while “[a]

neighborhood schoo! policy is not constitutionally suspect,”

Diaz v, San Jose Unified School Dist,, 612 F.2d 411, 415

(9th Cir, 1979), it is the locally elected school authorities

who “are traditionally charged with broad power to

formulate and implement educational policy,” Swann v,

Charlotte-Mecklenbury Bd, of Edue,, 402 U.S, 1, 16, 91

S.Ct, 1267, 1276, 28 L.Kd.2d 554 (1971), Locally elected

school boards even possess “broad diseretionary powers” to

prescribe a fixed proportion of racial mix in each sehool as

an educational policy, Jd,

In fact, the Supreme Court struck down a North

Carolina statue that flatly prohibited the assignment of any

publie school student on account of race or for the purpose

of creating a racial balance in the schools in North Carolina

Bd, of Educ, v, Swann, 402 U.S, 48, 91 S.Ct, 1284, 28

L,. Ed.2d 586 (1971)," There, the Court reiterated that

‘Judge Voorhees’ Finding of Facet No, 7.28 was that “the Seattle

Sehool District has traditionally adhered toa policy of the assignment of

children to their neighborhood sehools.” 475 supp, at L009,

"The anti busing law, the Court said, was Invalid because it “would

ineseapably operate to obstruct the remedies granted by the District

Court” to eliminate the existing dual school system ereated by an

unconstitutional baekground of de jure segregation, 402 US, at 45, 91

S.Ct, at L285,

B-9

as a matter of educational policy school authorities

may well conclude that some kind of racial balance in

the schools is desirable quite apart from any

constitutional requirements. * * * {I]f a state-

imposed limitation on a school authority’s discretion

operates to inhibit or obstruct the operation of a

unitary school system or impede the disestablishing of

a dual school system, it must fall * * *.

Id. at 45, 91 S.Ct. at 1285 (emphasis added).

That the Seattle Plan was self-imposed and not

required as a remedial measure by a federal district court’

does not alter or enhance the significance of Washington

State’s interest in mandating a state-wide neighborhood

school policy.’ As the three-judge panel observed in Lee v.

Nyquist, a finding of de jure segregation is irrelevant when

majoritarian political processes are used to frustrate minor-

ity participation:

In Milliken v. Bradley, 418 U.S. 717, 94 Sc t. 3112, dl rm Ed.2d 1069

(1974), the Supreme Court emphasized the importance of local control

over education. Local autonomy and diversity are so important to public

education, the Court held in Milliken, that judicial desegregation reme-

dies could not exceed the geographical scope of the constitutional viola-

tion:

[T}he notion that schoo! district lines may be casually ignored or

treated as a mere administrative convenience is contrary to the

history of public education in our country. No single tradition in

public education is more deeply rooted than local control over the

operation of schools; local autonomy has long been thought essential

both to the maintenance of community concern and support for

public schools and to quality of the educational ers les

Thus, in San Antonio School District v Rodriguez, 411 U.S. 1, 50,93

S.Ct. 1278, 1305, 36 L.Ed.2d 16 (1973), we observed that local control

over the educational process affords citizens an opportunity to par-

ticipate in decision making, permits the structuring of school pro-

grams to fit local needs, and encourages “experimentation, innova-

tion, and a healthy competition for educational excellence.”

418 US, at 741-42, 94 S.Ct. at 3125 (citations omitted) (emphasis added).

See also Wright v. Council of City of Emporia, 407 U.S. 451, 469, 92 S.Ct.

2196, 2206, 33 L.Ed.2d 51 (1972) (“Direct control over decisions vitally

affecting the education of one’s children is a need that is strongly felt in

our society * * *."); Brown v. Bd. of Educ., 349 U.S, 294, 299, 75

S.Ct. 753, 755, 99 L.Ed. 1083 (1955) (Brown 1) (schoo! authorities “have

the primary responsibility for elucidating, assessing, and solving” varied

local school problems engendered by race); Martin v. Charlotte Meck-

lenburg Bd. of Educ., 626 F.2d 1165, 1167 (4th Cir. 1980), note 9 infra

"The District Court did not reach the question of whether the school

districts were under a constitutional duty to desegregate. The District

B-10

The statute places burdens on the implementation of

educational policies designed to deal with race on the

local level.

* * * * *

* * * The * * * Legislature has acted to

make it more difficult for racial minorities to achieve

goals that are in their interest.

The statute thus operates to disadvantage a minority,

a racial minority, in the political process. There can be

no sufficient justification supporting the necessity of

such a course of action.

318 F.Supp. at 719-20. See also Flores v. Pierce, 617 F.2d

1386, 1391 (9th Cir. 1980).

The State’s argument that Dayton Bd. of Educ. v.

Brinkman, 433 U.S. 406, 413-14, 97 S.Ct. 2766, 2772, 53

L.Ed.2d 851 (1977) (Dayton J), permits official rescission

Court bifurcated the litigation, and the intervenors’ claims that the

school districts operate unconstitutional dual school systems were not

addressed in Stage 1.

*Had a successor school board to the one that adopted the Seattle

Plan instead of the state electorate as a whole attempted to repeal or

rescind the self imposed student assignment plan, we would be faced

with a quite different issue. In Dayton Bd. of Educ. v. Brinkman, 433

US. 406, 413-14, 97 S.Ct. 2766, 2772, 53 L.Ed.2d 851 (1977) (Dayton J),

the Court discussed a school board's rescission of a previously adopted

resolution which it was under no constitutional duty to promulgate

affecting the assignment of pupils:

The Board had not acted to undo operative regulations affecting the

assignment of pupils or other aspects of the management of schoo!

affairs, cf. Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18

L.Ed.2d 830 (1967), but simply repudiated a resolution of a

predecessor Board stating that it recognized its own fault in not

taking affirmative action at an earlier date. We agree with the Court

of Appeals’ treatment of this action, wherein that court said:

The question of whether a rescission of previous Board action

is in and of itself a violation of appellants’ constitutional rights is

inextricably bound up with the question of whether the Board was

under a constitutional duty to take the action it initially

took. * * * If the Board was not under such a duty, then the

rescission of the initial action in and of itself cannot be a

constitutional violation.

(Quoting Brinkman v. Gilligan, 503 F.2d 684, 697 (6th Cir. 1974)

(citations omitted)). Accord, Dayton Bd. of Educ. v. Brinkman, 443 U.S.

526, 531 n.5, 99 S.Ct. 2971, 2976 n.5, 61 L.Ed.2d 720 (1979) (Dayton IN).

Under this standard, the constitutionality of Initiative 350 would hinge

on the Stage II determination of whether the Seattle School District has

maintained a dual system or practiced de jure segregation.

B-11

of previously adopted desegregation measures as long a

there was no antecedent constitutional duty to remedy de

jure segregation ignores the crucial fact that a different

governmental body—the state-wide electorate—rescinded

a policy voluntarily enacted by locally elected school boards

already subject to local political control. Initiative 350,

unlike the situation in Dayton J, results in the political

process being skewed at the expense of local representative

bodies and their constituencies. See note 8, supra.

The opponents of desegregation who reside in the

Seattle School District resorted to the state-wide initiative

mechanism only after unsuccessful attempts to recall four

elected school board members in 1971-72, see Finding of

Fact No. 6.3, 473 F.Supp. at 1006, and to block the Seattle

Plan in the courts, see Findings of Fact Nos. 7.1, 7.2, and

7.11, 473 F.Supp. at 1007-08. The effect of Initiative 350 is

to restructure the state’s political and administrative

process so as to remove from local school boards their

existing authority, and in large part their capability,’ to

enact programs designed to desegregate the schools. Initia-

tive 350 effectively disenfranchises the voters of the local

school districts with respect to local educational matters.

The interest of the State of Washington in mandating a

state-wide policy of neighborhood schools must, in these

circumstances, fall to the paramount interest of the locally

elected school boards and the community they represent in

promulgating their own educational policy. Therefore, we

hold that Initiative 350, which attempts to wrest from local

control the formulation and implementation of educational

and desegregation policies, is not supported by any

compelling state interest; consequently, the statute is

unconstitutional as a violation of the equal protection

clause of the Fourteenth Amendment.'® See Hunter v.

*Judge Voorhees’ Finding of Fact No. 8.5 was that “[i]t would be

impossible to effect a racial balance of Seattle schools without resort to

some or all of the tools or methods prohibited by Section 3 of Initiative

350”, 473 F.Supp. at 1010. This holding is not clearly erroneous.

Fed.R.Civ.P. 52(a).

“Cf. Associated Gen. Contractors v. San Francisco Unified School

Dist., 616 F.2d 1381, 1388-90 (9th Cir. 1980), cert. denied sub nom.

B-12

Erickson, 393 U.S. at 393, 89 S.Ct. at 561 (“the State may

no more disadvantage any particular group by making it

more difficult to enact legislation in its behalf than it may

dilute any person’s vote or give any group a smaller

representation than another of comparable size.”); Lee v.

Nyquist, 318 F.Supp. at 720.

The appellants contend that Brown v. Califano, 627

F.2d 1221 (D.C. Cir. 1980) should control the outcome here.

We disagree. In Brown, the D.C. Circuit upheld the

constitutionality of a series of amendments to congressional

appropriations bills which prevent the Department of

Health, Education, and Welfare from withholding federal

funds from school districts which subscribe to a

neighborhood school student assignment policy. The Eagle-

ton-Biden amendment, typical of the challenged provi-

sions, provides that

[njone of the funds contained in this Act shall be used

to require, directly or indirectly, the transportation of

any student to a school other than the school which is

nearest the student’s home [except for a student

requiring special education], * * * inorder tocom-

ply with Title VI of the Civil Rights Act of 1964.

Quoted in Brown v. Califano, 627 F.2d at 1226 n.26.

Brown is distinguishable in a number of fundamental

respects. Although the statutory language of Initiative 350

and the Eagleton-Biden amendment are superficially simi-

lar, the operative and intended effects of the statutes are

vastly different. The Title VI amendments were merely an

internal administrative housekeeping measure designed to

limit HEW’s ability to order mandatory busing. The

legislative history indicates that Congress simply intended

to prevent the HEW bureaucracy from acting solely on its

own authority in administrative proceedings to coerce local

school districts into adopting busing plans. “An explicit,

National Ass'n of Minority Contractors v. Associated Gen. Contractors,

— US. ——, 101 S.Ct. 783, 66 L.Ed.2d 603 (1980) (state's interest in

lowest-bid contracting policy governing employment in publicly funded

construction projects is paramount to school board's non-educational

interest in voluntarily adopting a minority set-aside affirmative action

program).

B-13

major purpose of the amendments was to take ‘HEW out of

the busing business.’ In other words, Congress wanted to

ensure that mandatory busing orders derive either from

local school officials or federal courts.” /d. at 1231, quoting

122 Cong.Rec. 21198 (1976) (remarks of Sen. Biden)

(footnotes omitted). Judge Bazelon noted that:

the instant case does not involve a flat prohibition

against involuntary busing. The amendments chal-

longed here merely restrict one federal agency's ability

to induce busing as a condition of ig federal

funds. Local school officials still may vo untaril

employ transportation to — ate * * [A]ll

reasonable desegregation methods remain available

to school officials and to courts.

627 F.2d at 1229 (emphasis added) (footnote omitted).

Here, Initiative 350 flatly prohibits local officials from

busing beyond neighborhood schools if the purpose is to

desegregate the schools. Busing beyond neighborhood

schools for all other significant reasons is permitted. This is

significantly different from the amendments, which the

Brown court concluded did not “make [a] classification

along impermissible [racial] lines.” /d. at 1230. Because

Initiative 350 does preclude local school authorities from

voluntarily busing to achieve desegregation, and does so via

a statute that embodies a burdensome racial classification,

Brown v. Califano is inapposite.

Therefore, for the reasons stated herein, the judgment

of the District Court that Initiative 350 is unconstitutional

is affirmed.

II. Attorney's Fees—The Cross-Appeal

After the decision on the merits, the appellees

requested attorney's fees as authorized by two statutes. The

Civil Rights Attorney's Fees Award Act of 1976 provides, in

pertinent part:

In any action or proceeding to enforce a provision of

sections 1981, 1982, 1983, 1985, and 1986 of this title

* * * or in any civil action or proceeding, by or on

behalf of the United States of America, to enforce, or

charging a violation of * * * title VI of the Civil

Rights Act of 1964, the court, in its discretion, may

B-14

allow the prevailing party, other than the United

States, a reasonable attorney's fee as part of the costs.

42 U.S.C, § 1988 (1980) (emphasis added). Section 718 of

the Emergency School Aid Act also provides that:

Upon the entry of a final order by a court of the

United States against a local educational agency, a

State (or any agency thereof), or the United States (or

any agency thereo!), fo failure to comply with any

provision of this subchapter or for discrimination on

the basis of race, color, or national origin in violation of

title VI of the Civil Rights Act of 1964, or the

fourteenth amendment to the Constitution of the

United States as they pertain to elementary and

secondary education, the court, in its discretion, upon

a finding that the proceedings were necessary to bring

about compliance, may allow the prevailing party,

other than the United States, a reasonable attorney's

fees as part of the costs.

20 U.S.C. § 3205 (1980) (emphasis added). The District

Court denied the motions, and appellees cross-appealed for

review of that judgment.

The general attorney's fees statute, § 1988, and the

statute dealing specifically with school desegregation cases,

§ 3205, share the same language and are to be construed

together. Wheeler v. Durham City Bd. of Educ., 585 F.2d

618, 621-22 (4th Cir. 1978); see Northcross v. Memphis Bd.

of Educ., 412 U.S. 427, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973)

(per curiam). The Supreme Court has interpreted these

statutes as requiring that “the successful plaintiff ‘should

ordinarily recover an attorney's fee unless special circum-

stances would render such an award unjust.’” Northcross

v. Memphis Bd. of Educ., 412 U.S. at 428, 93 S.Ct. at 2202,

quoting Newman v. Piggie Park Enterprises, Inc., 390 U.S.

400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). Our

Court has examined two factors in determining if a case

involves “special circumstances” which would make an

award “unjust”: (1) whether allowing attorney's fees in a

particular case would further the congressional purpose in

adopting the Acts, and (2) the balance of equities. See

Dennis v. Chang, 611 F.2d 1302 (9th Cir. 1980); Aho v.

Clark, 608 F.2d 365 (9th Cir. 1979); Buxton v. Patel, 595

F.2d 1182 (9th Cir. 1979).

B-15

The congressional purpose in providing attorney's fees

in civil rights cases was to eliminate financial barriers to the

vindication of constitutional rights and to stimulate volun-

tary compliance with the law. S. Rep. No. 1011, 94th Cong.,

2d Sess., reprinted in [1976] U.S. Code Cong. & Ad. News,

p. 5908; H.R. Rep. No. 1558, 94th Cong., 2d Sess. (1976).

The District Court concluded that an award of

attorney's fees in this case was not necessary because the

school districts are publicly-funded entities. There is noth-

ing in the language or legislative history of the statutes,

however, indicating a congressional intent to limit attor-

ney’s fees to private parties. As long as a publicly-funded

organization advances important constitutional values, it is

eligible for fees under the statutes. Dennis v. Chang, 611

F.2d at 1304-07; Oldham v, Ehrlich, 617 F.2d 163, 168-69

(8th Cir. 1980); Palmigiano v. Garrahy, 616 F.2d 598, 600-

03 (1st Cir. 1980). See Holley v. Lavine, 605 F.2d 638 (2d

Cir. 1979), cert. denied sub nom, Blum v., Holley, 446 US.

913, 100 S.Ct. 1843, 64 L.Ed.2d 266 (1980); Weisenberg v.

Huecker, 593 F.2d 49 (6th Cir.), cert. denied, 444 U.S, 880,

100 S.Ct. 170, 62 L.Ed.2d 110 (1979); Lund v. Affleck, 587

F.2d 75 (1st Cir. 1978) (allowing awards to publicly-funded

legal services corporations).

The State argues that even if a publicly-funded entity

is eligible to receive legal fees under the statutes, an award

would be inappropriate in this case because the “special cir-

cumstance” of an absence of bad faith on the part of the

state officials makes an award in this case “unjust.” While

absence of bad motives precludes an award against named

defendants in their individual capacities, Hutto v. Finney,

437 U.S. 678-700, 98 S.Ct. 2565, 2574-78, 57 L.Ed.2d 522

(1978), it does not bar an award against the state or named

individuals in their official capacities. Williams v. Alioto,

625 F.2d 845 (9th Cir. 1980); Universal Amusement Co. v.

Hofheinz, 616 F.2d 202, 204 n.1 (5th Cir. 1980); Internal

Oceanic Enterprises, Inc. v. Menton, 614 F.2d 502, 504 (5th

Cir. 1980); Johnson v, State of Mississippi, 606 F.2d 635,

637 (5th Cir. 1979); Haycraft v. Hollenbach, 606 F.2d 128,

132 (6th Cir. 1979).

After full consideration of the facts in this case, we

B-16

conclude that the District Court abused its discretion in

denying the school districts’ motion for attorney's fees. The

judgment on this issue is reversed and the cause remanded

for the purpose of determining the amount of the award,

The District Court also denied intervening appellees’

separate motion for attorney's fees, not, as the State

suggests, because intervenors could not be included in the

statutory category of “prevailing parties,” but rather

because they played a de minimis role in the trial on the

merits. After examining the record, we conclude that the

District Court was within its discretion in denying

intervenors’ motion inasmuch as the request was condi-

tioned on their level of participation in the Phase I

litigation. Intervenors, however, also necessarily devoted

substantial time and effort to preparation for trial on the

Phase II issues. This pre-trial preparation was essential

because it was apparent from the onset of this case that the

school districts would not be in a position to argue they

were operating dual school systems if Initiative 350 were

found to be constitutional. The burden of litigating the

Phase II issues would have been the sole reponsibility of the

intervenors.

An award of attorney's fees for time spent on a

particular issue is not precluded merely because develop-

ments in the course of the litigation make it unnecessary to

consider that specific question. “Nothing in the language

of § 1988 conditions the District Court’s power to award

fees on full litigation of the issues. * * *” Maher v,

Gagne, _.. U.S, —_, ——, 100 S.Ct. 2570, 2575, 65 L.Ed.2d

653 (1980). Accord, Williams v, Alioto, 625 F.2d at 848. The

legislative policy of encouraging constitutional litigation,

which led Congress to specify that an award is permissible

for an issue which is not fully litigated if constitutional

rights are vindicated through the mechanism of a consent

decree or other preliminary relief, S. Rep. No. 1011 at 5,

[1976] U.S. Code Cong. & Ad. News at 5912-13, also

supports an award for expenses incurred in the preparation

of issues which were not reached if the same constitutional

values are advanced through resolution of another claim,

See Northcross v. Board of Educ, of Memphis, 611 F.2d

B-17

624, 635-36 (6th Cir. 1979), cert. denied, _. U.S, ——, 100

S.Ct. 2999, 64 L.Ed.2d 862 (1980); Brown v. Bathke, 588

F.2d 634, 637-38 (8th Cir. 1978); Busche v. Burkee, 483

F.Supp. 1326, 1328 (E.D. Wis. 1980). In the analogous

situation in which resolution of a non-fee claim makes

consideration of a fee claim unnecessary, the court in its

discretion may allow an award. Maher v. Gagne, 100 8.Ct.

at 2576 & n.15; Oldham v. Ehrlich, 617 F.2d at 168;

Kimbrough v. Arkansas Activities Ass'n, 574 F.2d 423, 426-

27 (8th Cir, 1978).

School desegregation cases invariably involve multiple

parties and multiple issues. It is usually impossible to

determine in advance of trial which issues will be reached or

which parties will play pivotal roles in the course of the

litigation. To retrospectively deny attorney's fees because

an issue is not considered or because a party's participation

proves unnecessary would have the effect of discouraging

the intervention of what in future cases may be essential

parties. “The complex nature of school desegregation cases

requires that attorneys’ fees be approached with flexibility

if Congress’ goal in enacting these statutes is to be realized.”

United States v. Waterbury Bd. of Educ., 605 F.2d 573, 576

(2d Cir, 1979).

In this case there was a substantial likelihood that

Initiative 350 would be held constitutional. In that event

the considerable burden of litigating whether the school

districts involved were unconstitutionally segregated would

have fallen squarely on the intervenors. Because an award

of attorney's fees in this case is essential to effectuate the

congressional purpose of encouraging future constitutional

litigation in similar circumstances, we conclude that the

District Court abused it discretion in denying intervenors’

attorney's fees.

The judgment on this issue is reversed and upon

remand, the District Court will determine the amount of

the award. The award should include not only com-

pensation for time spent on the Phase II issues, but at least

some award for time spent monitoring the Phase I

litigation. The intervenors could not have effectively liti-

gated Phase II issues if they had not had at least some

B-18

familiarity with the proceedings on Phase I issues.

Affirmed in part; reversed and remanded in part.

Euoene A, WriGut, 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 constitu-

tionally 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 uncon-

stitutional. After considering the majority's analysis, I shall

add my views as to the other two grounds articulated by the

district court.

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

B-19

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 involv-

ing 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 neighbor-

hood schools policy, the majority finds that interest

subordinate to the interest of local communities in

promulgating their own educational policies for public

schools. It concludes the state’s interest in neighborhood

schools is not compelling and thus the initiative is unconsti-

tutional.

A

In its recent decisions, the Supreme Court has

emphasized that the touchstone of an equal protection

violation is an intent to discriminate, i.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. /d. at 239, 96 S.Ct. at 2047. It emphasized,

however, that “a racially discriminatory purpose” was an

essential element of an equal protection violation. Jd. 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

B-20

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.Bd.2d 851

(1979); Columbus Board of Education v, Penick, 443 US,

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 classifica-

tion:

Certain classifications, * * * in themselves supply

a reason to infer antipathy. Race is the paradigm.

racial classification regardless of purported motiva-

tion, 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 disproportionatel

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

B-21

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 persons attend

schools with diverse student bodies “often will be

compromised where the methods employed to promote

integration include coercive measures such as forced trans-

portation to achieve some theoretically desirable racial bal-

ance.” 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 US, 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 assign-

ments 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.'

'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

B-22

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, Ma‘, 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

statute unconstitutional because it interfered with the discretion of

school districts to adopt desegregation programs that are not constitu.

tionally required, The opinion held the statute unconstitutional because

of its interference with constitutionally required remedies,

B-23

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.

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),* 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. 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, administra-

tion and operational details of elementary and secondary

education).

*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 bi!ls independent of the

legislature. Wash. Const. Art. II, § 3. An initiative, then, is an exercise of

B-24

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.

It

The district court’s second argument was that discrim-

inatory 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 Develop-

ment Corp., 429 U.S. 252, 265-68, 97 S.Ct. 555, 563-65, 50

L.Ed.2d 450 (1977): (1) discriminatory impact; (2) histori-

cal background; (3) specific sequence of events culminating

in the decision; (4) departures from the normal procedural

and substantive sequence; and (5) legislative and adminis-

trative history.

The burden is on the party challenging a statute to

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).

B-25

prove that discriminatory intent was a motivating factor in

its adoption. /d. 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 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 dis-

criminatory 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 (i.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 Out-

comes for Children 136 (1975).‘ To the extent the district

‘See Bell, Book Review, 92 Harv.L.Rev. 1826 (1979), and studies

reviewed therein. See also D. Armor, The Evidence on Busing, 28 Pub.

B-26

court found the disproportionate adverse impact of Initia-

tive 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 dis-

avowed the proposition that foreseeable impact alone is

adequate to prove intent. Additional indicia of discrimina-

tory 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 partic-

ular 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 Initia-

tive 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 io 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 conradict 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.

Interest 90 (1972). Cf. J. Coleman, S. Kelly & J. Moore, Trends in School

Segregation, 1968-73 (1975) (concluding school desegregation a signifi-

cant cause of white flight).

B-27

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 o. statutory procedures for its

enactment.

Washington voters have utilized the initiative and ref-

erendum 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 depar-

ture 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 dis-

criminatory 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.‘

Ill

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 overbreadth doctrine is applied

when a possibility exists that a constitutionally protected

activity may be “chilled”. See NAACP v. Button, 371 US.

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

4ASee 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).

wal:

B-28

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).’ 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 scru-

tiny and the overbreadth doctrine, the latter should not

supplant or supplement the former in its area of applica-

tion.

Under equal protection analysis, labeling a classifica-

tion 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 impermissi-

bly restricts First Amendment rights. Rather, they assert

that is restricts a constitutional duty under the Fourteenth

Amendment.

They cannot assert, however, that an affirmative duty

makes their current desegregation plans constitutionally

necessary, as 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 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, J.,

dissenting) (distinguishing Thornhill v. Alabama and NAACP v. Button

as First Amendment cases).

B-29

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 endeavor 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” remedv 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 desegre-

gate. The measure is not an “absolute prohibition” against

student assignments for racial balance that would “inescap-

ably 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 con-

stitutional duty. Initiative 350 subordinates its neighbor-

hood 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.

C-1

APPENDIX C

[filed August 29, 1979; Clerk’s stamp deleted]

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

No. C78-753 V

ORDER

SEATTLE ScuHoot District No. 1 or Kinc County,

WASHINGTON, a municipal corporation, et al.,

Plaintiffs,

and

AMERICAN Civit LispertTiEs UNION;.et al.,

Intervenor

Plaintiffs,

and

East Pasco NEIGHBORHOOD CoUNCIL, et al.,

Additional

Intervenor

Plaintiffs,

vs.

Tue STATE OF WASHINGTON; et al.,

Defendants,

and

CITIZENS FOR VOLUNTARY INTEGRATION COMMITTEE

(Ci.V.LC.); et al.,

Intervenor

Defendants.

Having considered the motion of Ci.V.LC. that the

Court make additional findings of fact, and the motions of

the plaintiffs and of the plaintiff intervenors for the

allowance of attorneys’ fees and costs, together with the

memoranda and affidavits filed in support thereof and in

C-2

opposition thereto, the Court now finds and rules as fol-

lows:

1. No memorandum was filed in support of Ci.V.I.C.’s

motion that additional findings be made by the Court. The

Court finds that good cause has not been shown as to why

those additional findings should be made.

2. The allowance of attorneys’ fees and costs in

actions such as this is made discretionary with the trial

court by the applicable statutes authorizing the award of

attorneys’ fees and costs. 42 U.S.C. § 1988; 20 U.S.C. § 1617.

3. The legislative history of the statutes authorizing

the allowance of attorneys’ fees and costs in actions such as

this makes it clear that the allowance of attorneys’ fees and

costs was meant to encourage the private enforcement of

civil rights and to encourage aggrieved individuals to act as

private attorneys general. Newman v. Piggie Park Enter-

prises, 390 U.S. 400 (1968); Northcross v. Bd. of Education,

412 U.S. 427 (1973). In the absence of any provision for the

recovery of attorneys’ fees and costs, private persons, even

though grievously injured in the exercise of their civil

rights, would hesitate to embark upon litigation which is

almost always long, complex and expensive.

4. In the present case, however, this action was

commenced not by private persons whose own civil rights

had been violated but rather by three public bodies, the

school districts of Seattle, Tacoma and Pasco. The financial

concerns of these public bodies are hardly analogous to

those of impecunious parents of school children whose civil

rights may have been violated. Although the school districts

do not have unlimited funds, they do, at least, have

available to them public funds with which to prosecute

litigation. The plaintiffs are to a very large extent financed

by appropriations from the state. In part those

appropriations are to defray administrative costs, including

the legal expenses, of the plaintiff school districts.

5. With respect to the plaintiff school districts I find

in the exercise of the discretion accorded to me by the

controlling statutes that the legal expenses of the plaintiffs

should not be shifted from them to the defendant state.

6. With respect to claims of the plaintiff intervenors,

C-3

this Court was very liberal in granting leave to intervene to

those petitioning to do so. In freely granting leave to

intervene, the Court considered the assertion by a number

of the intervenors that there was de jure segregation of the

schools of plaintiffs and that even if Initiative 350 were held

to be constitutional, the alleged de jure segregation would

require the intervention of this Court. The Court

considered that if it should hold Initiative 350 to be

constitutional, the plaintiff school districts could not repre-

sent adequately the contentions of those who were asserting

de jure segregation since it was unlikely that the school

districts would concede that there was de jure segregation

in the schools of the plaintiff districts.

7. The Court finds that counsel for the plaintiffs

adequately and ably represented the interests of the

plaintiff intervenors with respect to the constitutionality of

Initiative 350 and that the result would have been the same

had the Court not permitted the intervention of any party

prior to its decision as to the constitutionality of the

initiative. Involvement of the plaintiff intervenors at this

stage of the trial was not necessary to assure a fair and

balanced presentation of plaintiffs’ case. Keyes v. School

Dist. No. 1, 439 F.Supp. 393 (D. Colo. 1977).

8. The Court finds that in the exercise of its discretion

attorneys’ fees and costs should not be awarded to the

plaintiff intervenors as against the defandant state. If the

judgment of this Court with respect to Initiative 350 should

be reversed upon appeal, and if at trial plaintiff intervenors

should prevail in their assertion that there is de jure

segregation in plaintiff school districts, the Court will at

that time entertain a motion by the intervenors for the

allowance of attorneys’ fees and costs.

Accordingly, the motion of defendant intervenor

Ci.V.L.C. that the Court make additional findings of fact is

DENIED; the motions of the plaintiffs and of the plaintiff

intervenors for the allowance of attorneys’ fees and costs

are DENIED.

The Clerk of this Court is instructed to send

uncertified copies of this order to all counsel of record.

C-4

Datep this 29th day of August, 1979.

/s/

United States District Judge

D-1

APPENDIX D

[filed May 18, 1981; Clerk’s stamp deleted]

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NOS. 79-4643

79-4655

79-4676

79-4740

79-4801

79-4802

SEATTLE Scuoot District No. 1 cr KinG County,

WASHINGTON, a municipal corporation; TACOMA SCHOOL

District No. 10 or Pierce County, WASHINGTON, a

municipal corporation; Pasco Scuoo. District No. 1 oF

FRANKLIN CouNTy, WASHINGTON, a municipal corpora-

tion; Boarp oF DirEcTORS OF SEATTLE SCHOOL DisTRICT

No. 1, the elective governing body of Seattle School

District No. 1; Parr Sutton and JoHN SuTTON, each

individually, and Parr Sutton as Board of Directors

member and as guardian ad litem for PHOEBE SuTTON,

NICHOLAS SUTTON, JOSHUA SUTTON, and PATRICK SUTTON;

RICHARD ALEXANDER and CONSTANCE ALEXANDER, each

individually, and RicHaRD ALEXANDER, as Board of

Directors member and as guardian ad litem for REGINA

ALEXANDER; CHERYL BLEAKNEY and Tuomas P. BLEAK-

NEY, each individually, and CHERYL BLEAKNEY, as Board

of Directors member and as guardian ad litem for Ross

BLEAKNEY and Scott BLEAKNEY; Don OLSON and FRAN-

CELLA OLSON, each individually, and Don OLSON, as

Board of Directors member and as guardian ad litem for

Peter Oxtson; Dorotuy HOLLINGswortu, individually

and as Board of Directors member; SUZANNE HITTMAN

and DonaLp Hitrman, each individually, and SuZANNE

HitTMaAN, as Board of Directors member and as guardian

ad litem for JouN Hitrman; T. J. and Lynpa Vassar,

individually and as parents and guardians ad litem for

D-2

MIKELLE Vassar and AsHA Vassar; ANNIE JONES, indi-

vidually and as grandparent and guardian ad litem for

CaTRINA JONES and RENALDO JONES; HARRIET and WIL-

LIAM WASSERMAN, individually and as parents and guard-

ians ad litem for WAYLAND WASSERMAN and WYETH

WASSERMAN; JONIS and CHARLES Davis, individually and

as parents and guardians ad litem for JEFFREY Davis and

Racuev Davis; Ricnarp L. and Barsara D. ANDREWS,

individually and as parents and guardians ad litem for

CARMEN ANDREWS, LISA ANDREWS, and CHEYNEY

ANpREWs; ANDRES and EVELYN TANGALIN, individually

and as parents and guardians ad litem for Me: Lin

TANGALIN, CELINE TANGALIN and MILEs TANGALIN; Bos

and ANITA SANTOs, individually and as parents and

guardians ad litem for Joun SANTOS and Nancy SANTOS;

VirGINIA and Byron Marr, individually and as parents

and guardians ad litem for Eric Marr, Curtis Marr,

and PAMELA Marr; Joe and Mona Jones, individually

and as parents and guardians ad litem for BRENT JONES

and Dana Jones; Mary and JOHN CHARLES, individually

and as parents and guardians ad litem for PAMELA

CHARLES and Ropert CHARLES; TAVALE and SARA

TAUPULE, individually and as parents and guardians ad

litem for Saca TaupuLE; on behalf of themselves and

alternatively on behalf of all citizens of the United States

and all residents of the State of Washington who are

similarly situated,

Plaintiffs- Appellees,

THE STATE OF WASHINGTON; Dixy LEE Ray, Governor of the

State of Washington; JouN BaGNario: and JOHN A.

CHERBERG, as principal officers of the legislative author-

ity of the State of Washington; SLApE Gorton, Attorney

General of the State of Washington; Frank B.

Brouli._et, Washington State Superintendent of Public

Instruction; H. EuGene Hatt; Levy S. JOHNSTON; JACK

L. Rep; Epwarp Diamonp; Mark E. Hoeune; Rocer H.

LINCOLN; WALTER H. Lewis; JAMés M. SPALDING; OLLIE

Mae Wixson; OrvILLE BARNES; GRANT L. ANDERSON;

D-3

EILEEN B. Katies; Puivie B. Swain; and Rosert B.

STOOKEY, each as members of the Washington State

Board of Education,

Defendants-Appellants.

NOTICE OF APPEAL TO THE SUPREME

COURT OF THE UNITED STATES

Notice is hereby given that the State of Washington

and the following state officers [either as heretoforenamed

parties or as substituted parties pursuant to FRAP 43(c)]:

John Spellman as Governor of the State of Washing-

ton,

William Polk and Jeanette Hayner, as principal offi-

cers of the Washington State House of Representa-

tives and Senate, respectively,

Kenneth O. Eikenberry as Attorney General of the

State of Washington,

Frank B. Brouillet as Washington State Superintend-

ent of Pyblic Instruction,

H. Eugene Hall, Levy S. Johnston, Dale W.

Thompson, Edward Diamond, Mark E. Hoehne, Roger

H. Lincoln, Walter H. Lewis, Edward Armbruster,

Ollie Mae Wilson, Roy E. Jorgensen. Grant L.

Anderson, Robert N. Randall, Philip B. Swain, Marga-

ret R. McCarthy and Lee Bailey as Members of the

Washington State Board of Education,

do hereby appeal from the judgment in this case evidenced

by the opinion of the Court of Appeals for the Ninth

Circuit, originally filed on December 16, 1980, declaring

Initiative Measure No. 350 to be unconstitutional as

violative of the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution, said judg-

ment having been finally disposed of by order filed on

March 26, 1981, denying Defendant-Appellants’ petition

for rehearing with suggestion for en banc hearing.

* * *

This appeal is taken pursuant to 28 USC § 1254(2).

D-4

Datep this 13th day of May, 1981.

KENNETH O. EIKENBERRY,

Attorney General,

Ma acny R. Murpuy,

Deputy Attorney General,

/s/

Tuomas F. Carr,

Sr. Assistant Attorney General,

Temple of Justice, AQ-04

Olympia, WA 98504

Telephone: AC 206 753-4556

IN THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NOS. 79-4643

70-4655

79-4676

79-4740

79-4801

79-4802

AFFIDAVIT OF SERVICE

BY MAIL

SEATTLE Scuoot District No. 1 or KinG County,

WASHINGTON, a municipal corporation; et al.,

Plaintiffs-Appellees,

—vs—

STATE OF WASHINGTON, et al.,

Defendants-Appellants.

STATE OF WASHINGTON )

> 86.

County OF THURSTON )

I, Linda C. Sandera, being first duly sworn, on oath

depose and say: That I am, and at all times hereinafter

%

D-5

mentioned have been, a citizen of the United States, over

the age of 18 years, and competent to be a witness in the

above entitled case; that on the 14th day of May, 1981, I

duly served one copy each of Notice of Appeal to the

Supreme Court of the United States upon all counsel of

record by enclosing said materials in an envelope addressed

as follows:

Mr. James A. Oliver

Short & Cressman

Attorneys at Law

3000 Seattle-First National Bank Bldg.

Seattle, WA 98154

¥ * *

KENNETH O. EIKENBERRY,

Attorney General,

Tuomas F. Carr,

Sr. Assistant Attorney General,

Temple of Justice, AQ-04

Olympia, WA 98504

Telephone: AC 206 753-4556

AFF. OF SERVICE

BY MAIL

Mr. Michael W. Hoge

Mr. Camden M. Hall

Foster, Pepper & Riviera

Attorneys at Law

1111 Third Avenue Bldg.

Seattle, WA 98101

Mr. Frederick L. Noland

MacDonald, Hoague & Bayless

Attorneys at Law

1500 Hoge Bldg.

Seattle, WA 98104

Ms. Iris Green

Department of Justice

Room 7738

10th and Constitution Avenue N.W.

Washington, D.C. 20530

. Mr. Philip L. Burton

Burton, Crane & Bell

Attorneys at Law

1830 Bank of California Center

Seattle, WA 98164

D-6

Mr. William H. Neukom

Shidler, McBroom, Gates & Baldwin

1000 Norton Bldg.

Seattle, WA 98104

Mr. James S. Rogers

Franco, Asia, Bensussen, Coe & Finegold

Attorneys at Law

602 Tower Bldg.

Seattie, WA 98101

Mr. William L. E. Dussault

Sweet & Dussault

Attorneys at Law

219 East Galer Street

Seattle, WA 98102

Mr. Thomas A. Lemly

Attorney at Law

4200 Seattle-First National Bank Bldg.

Seattle, WA 98154

Solicitor General

Department of Justice

Washington, D.C. 20530

AFF. OF SERVICE

BY MAIL

Mr. Hall Baetz

Davis, Wright, Todd, Riese & Jones

Attorneys at Law

4200 Seattle-First National Bank Bldg.

Seattle, WA 98154

said addresses being the last known post office addresses of

counsel of record, by depositing the envelopes in the United

States mail with correct first-class postage affixed thereto.

Wi cidiiciatcciamhad

LINDA C, SANDERA

SUBSCRIBED AND Sworn to before me this 14th day of

May, 1981.

/s/

Norary Pustic in and for the

AFF. OF SERVICE State of Washington, residing at

BY MAIL Olympia

E-1

APPENDIX E

[filed March 26, 1981; Clerk’s stamp deleted]

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 79-4643

79-4655

79-4676

79-4740

79-4801

79-4802

D.C. No. 78-753

ORDER

SEATTLE Scuoot District No. 1, et al.,

Plaintiffs- Appellees,

Vv.

THE STATE OF WASHINGTON, et al.,

Defendants-Appellants.

Before: ELy, WricuT, and Neson, Circuit Judges

The judges constituting the panel originally concerned

with the subject case (Ely, Wright, and Nelson) have voted

unanimously to deny the Petition for Rehearing. Judge

Wright has voted to adopt the suggestion for rehearing en

banc, Judge Nelson has voted to reject such suggestion, and

Judge Ely has recommended that the suggestion for en

banc rehearing be rejected.

The full court has been advised of the suggestion for an

en banc hearing, and no judge of the court has requested a

vote on the suggestion for rehearing en banc. Fed. R. App.

P. 35(b).

The Petition for Rehearing is denied, and the

suggestion for a rehearing en banc is rejected.

F-1

APPENDIX F

(CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED)

Constitution of the United States of America

AMENDMENT XIV

§ 1 CITIZENSHIP RIGHTS NOT TO BE

ABRIDGED BY STATES. All persons born or natural-

ized in the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the state

wherein they reside. No state shall make or enforce any law

which shall abridge the privileges or immunities of citizens

of the United States; nor shall any state deprive any person

of life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.

Washington Constitution

ARTICLE IX

EDUCATION

§ 1 PREAMBLE. 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.

§ 2 PUBLIC SCHOOL SYSTEM. The legisla-

ture shall provide for a general and uniform system of

public schools. The public school system shall include

common schools, and such high schools, normal schools,

and technical schools as may hereafter be established. But

the entire revenue derived from the common school fund

and the state tax for common schools sha!! be exclusively

applied to the support of the common schools.

F-2

Initiative Measure No. 350 (Now codified in the

Revised Code of Washington as shown below)

Chapter 28A.26

REQUIRING ATTENDANCE

GEOGRAPHICALLY NEAR STUDENT’S

RESIDENCE

28A.26.010 General rule——Exceptions. Not-

withstanding any other provision of law, after December 7,

1978, no school board, school district, educational service

district board, educational service district, or county com-

mittee, nor the superintendent of public instruction, nor

the state board of education, nor any of their respective

employees, agents or delegates shall directly or indirectly

require any student to attend a school other than the school

which is geographically nearest or next nearest the

student’s place of residence within the school district of his

or her residence and which offers the course of study

pursued by such student, except in the following instances.

(1) If a student requires special education, care or

guidance, he may be assigned and transported to the school

offering courses and facilities for such special education,

care or guidance;

(2) If there are health or safety hazards, either natural

or man made, or physical barriers or obstacles, either

natural or man made, between the student’s place of

residence and the nearest or next nearest school; or

(3) If the school nearest or next nearest to his place of

residence is unfit or inadequate because of overcrowding,

unsafe conditions or lack of physical facilities [1979 c 4 § 1

(Initiative Measure No. 350).]

28A.26.020 Application of next geographi-

cally nearest rule. In every such instance where a

student is assigned and transported to a school other than

the one nearest his place of residence, he shall be assigned

and transported to the next geographically nearest school

with the necessary and applicable courses and facilities

within the school district of his or her resider.ce. [1979 c 4 §

2 (Initiative Measure No. 350).}

F-3

28A.26.030 Explanation of phrase as used in

RCW 28A.26.010. For purposes of RCW 28A.26.010,

“indirectly require any student to attend a school other

than the school which is geographically nearest or next

nearest the student’s p

This text is long and has been trimmed here. Open the source document for the complete record.