Appellants Brief — Washington v. Seattle School Dist. No. 1

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No. 81-9 . “ete Sout Ts

JAN 29 1982

In The CaaS =

Supreme Court of the United States-—- —- —~

October Term, 1981

STATE OF WASHINGTON, et al.,

Appellants,

Vv.

SEATTLE SCHOOL DISTRICT NO. 1, et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF APPELLEES

815 Fourth Avenue North MICHAEL W. HOGE*

Seattle, Washington 98109 General Counsel

(206) 587-4272 Seattle School District No. 1

1111 Third Avenue Building CAMDEN M. HALL, P.S.*

Seattle, Washington 98101 G. RICHARD HILL

(206) 447-4400 Foster, Pepper & Riviera

Special Counsel for all

School District Plaintiffs

1900 Washington Building DAVID J. BURMAN

Seattle, Washington 98101 Perkins, Coie, Stone,

(206) 682-8770 Olsen & Williams

Special Counsel for Seattle

School District No. 1

*Counsel of Record

QUESTIONS PRESENTED

1. Does a state statute—Initiative 350—requiring

assignment of students to the nearest or next-nearest school

embody a suspect racial classification when it contains

exceptions for all common forms of student assignment

except racial desegregation, specifically prohibits all means

of desegregation other than transfers at students’ option,

and concededly was enacted to terminate a school district's

mandatory desegregation program?

2. Does substantial evidence support the finding by the

District Court, after nine days of trial that created over 2000

pages of transcript and over 250 exhibits, that discriminatory

purpose was a factor in the adoption of Initiative 350?

3. Does a state’s prohibition of local school districts’

assignment of students to non-neighborhood schools for

desegregation, except where ordered by a court, interfere

with satisfaction of the affirmative federal duty to

desegregate?

4. Does protection of the constitutional rights of school

children by school districts, school board members, and

private citizens constitute a special circumstance rendering

an award of attorney’s fees unjust?

TABLE OF CONTENTS

pO Pte AO i ee Oe ee 1

I NS ie uc ecb ey ceeveuvrorsa 1

Pie I aS cia votes es Gc bb ok ples wets 1

B. Historical Background .................... 2

De ee ee oye revs 4

D. Origin and Passage of Initiative 350......... 7

E. The Initiative 350 Lawsuit................ 10

F. The District Court’s Decision.............. 10

G. The Court of Appeals’ Decision............ 12

ge EP eee ere rere 14

RE VCE eae CA Slee Teri cii sc aeehlees Cie ee 16

A. Initiative 350 Embodies a Racial

Classification Disadvantaging

EN So tee a cr ay te hare kha ea 16

1. III Sky ek sid oe is d's eee 16

2. Initiative 350’s Race-Consciousness . .18

3. Overt v. Covert Classifications....... 21

4. Necessity of Further Proof of Purpose 23

5. as. hen cis sak Sie eA 24

Discriminatory Purpose Was a Factor In

Intitiative 350’s Adoption ................ 25

1. Segregative Impact ................ 25

2. History and Context of the Initiative’s

"Ba ae: 27

3. Lack of Relationship Between Means

and Permissible Ends .............. 30

4. Subjective Motivation.............. 32

5. | SR ag a a ae 34

iii

C. Initiative 350 Deters Satisfaction of

the Affirmative Duty to Remedy Past

tae evs c UN > eae ven wages 34

1. The Affirmative Constitutional Duty .35

2. Necessity of “Busing’.............. 36

3 The “Saving’’ Construction of

I a ci nas oko CAG aR ae ae 38

4. Initiative 350 Is Facially Overbroad . . 41

5. Initiative 350 Is Preempted By

Federal Legislation ................ 42

6. oie bi 50a dak de eS eR 44

D. The Court of Appeals Correctly Found

the Successful School District Plaintiffs

Entitled to Their Costs and

pg ee 44

1. Statutory Bases for Award of

Attorney's Fees ...............005. 45

2. An Award of Fees Serves the

Congressional Purposes............. 46

3. No Special Circumstances Exist Here . 47

4. An Award Is Due Other Plaintiffs ...49

ae 50

TABLE OF AUTHORITIES

Cases

Ambach v. Norwick, 441 U.S. 68 (1979)............. 27

Anderson v. Martin, 375 U.S. 399 (1964) ............ 19

Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252

eer ae 14,24,25,28,30,32,33,34

Armstrong v. Board of School Directors, 616 F.2d

ON rn ae 37

Baggett v. Bullitt, 377 U.S. 360 (1964).............. 41

Board of Education v. Harris, 444 U.S. 130

ga aguas RS ee 43,44

Brandenburger v. Thompson, 474 F.2d 885

a RR 49

Brown v. Board of Education (I), 347 U.S. 483

RAS td ay SS ie ee ee rr 22,26,35

OR Selsey cee hens vena pseaa nds 36

Brown v. Califano, 627 F.2d 1221 (D.C. Cir. 1980) ... .34

Buchanan v. Evans, 423 U.S. 963, aff'g

mem. 393 F. Supp. 428 (D. Del. 1975)........ 21,22

Carey v. Piphus, 435 U.S. 247 (1978)............. 46,48

Castaneda v. Partida, 430 U.S. 482 (1977) ........ 20,22

Citizens Against Mandatory Bussing v.

Palmason, 80 Wash. 2d 445,

es as obs ss cee e seen s 3,29

Columbus Board of Education v. Penick, 443

ee MNP bese hee aoa eee 4,26,35,37

Comstock v. Group of Institutional Investors, 335

EM ees cal tata stent 36

Care ©. am, 438 UB, GESTS oo eek. 29

Crawford v. Board of Education, No. 81-38 .......... 37

Dandridge v. Williams, 397 U.S. 471 (1970).......... 42

Dawson v. Pastrick, 600 F.2d 70

(7th Cir. 1979), cert. denied, 450

MT Soh Soha e ea ty g oe 5a ohne ooo 46-47

Dayton Board of Education (I), 433 U.S. 409 (1977). . .35

Dayton Board of Education v. Brinkman (II),

ge OF err 4,35,37

DeFunis v. Odegaard, 82 Wash. 2d 11,

507 P.2d 1169 (1973), vacated as moot,

Se eee I Ss cic ceeere sy sche 24,25

Dennis v. Chang, 611 F.2d 1302 (9th Cir. 1980)... .47,48

Department of Revenue v. Hoppe,

82 Wash. 2d 549, 512 P.2d 1094 (1973) ......... 21

Donaldson v. O’Connor, 454 F. Supp. 311 (N.D.

IS Fee ote aac en secre eo eka 47

Fleming v. Nestor, 363 U.S. 603 (1960) ............. 33

Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810)........ 32

Fuliilove v. Klutznick, 448 U.S. 448 (1980) .......... 43

Gooding v. Wilson, 405 U.S. 518 (1972)............. 41

Goss v. Board of Education, 373 U.S. 683 (1963) .... .19

Graver Tank & Mfg. Co. v. Linde Air Products Co.,

ee Shas TE bce ae eee 2

Green v. County School Board, 391 U.S. 430 (1968) .. .36

Guinn v. United States, 238 U.S. 347 (1915) ...... 22,23

ene &. Gale, 438 We. 1 MR ook tec ameaeks 47

Hines v. Davidowitz, 312 U.S. 52 (1941) ............ 44

Howard v. Illinois Central R.R., 207 U.S. 463 (1908) . 39

Hunter v. Erickson, 393 U.S. 385

SOEs Sx eacani a ca aes 11,16,17,18,19,21,22,23,24

Hutto v. Finney, 437 U.S. 678 (1978) ............... 48

Incarcerated Men of Allen County Jail v. Fair,

GOT F.2G SGi Gth Ul. 1078)... we ceee es 47

James v. Valtierra, 402 U.S. 137 (1971) ............. 21

Jenkins v. Anderson, 447 U.S. 231 (1980) ........... 29

Kasper v. Edmonds, 69 Wash. 2d 799,

SP Pe ONe TRS ov bcc Cornu weesaeea cues 39

Keyes v. School District No. 1, 413 U.S. 189 (1973)... .4

Korematsu v. United States, 323 U.S. 214 (1944)..... 22

Kramer v. Union Free School District No. 15, 395

Sh ee CN oo a oa eda ee eee eee 28

Lane v. Wilson, 307 U.S. 268 (1939) ................ 22

Lau v. Nichols, 414 U.S. 563 (1974) .........0000... 42

vii

Loving v. Virginia, 388 U.S. 1 (1967)......... ...19,24

Lund v. Affleck, 587 F.2d 75 (1st Cir. 1978) ......... 47

Lynch v. Overholser, 369 U.S. 705 (1962) Pisin Gite 39

Maher v. Gagne, 448 U.S. 122 (1980) ................ 49

McDaniel v. Barresi, 402 U.S. 39 (1971)......... 4,18,42

McLaughlin v. Florida, 379 U.S. 184 (1964) ....... 19,22

Mid-Hudson Legal Services, Inc. v. G & U, Inc.,

ok Be ee eereerrrrrer errr ee 47

Milliken v. Bradley (I), 418 U.S. 717 (1974).......... 36

Morgan v. Kerrigan, 530 F.2d 401

(1st Cir.), cert. denied, 426 U.S.

I er ioe e re rer or ik al Ly. yh oh tot) ee 35

NAACP v. Medical Center, Inc., 657 F.2d 1322

I ne Fe nk yok i eres Cie tetg ig Gee 43

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

Ne is kee ke Soa 88 oo Oe eek 46

New York City Transit Authority v. Beazer, 440

ee 42

New York Gaslight Club, Inc. v. Carey, 447 U.S.

ee eee than a hater tbsenesea 46

North Carolina State Board of Education

v. Swann, 312 F. Supp. 503 (W.D.N.C. 1970),

aff'd,402 U.S. 43 (1971).......... 17,36,37,39,41,42

Northcross v. Board of Education,

RE eee rere ere 46

viii

Nyquist v. Lee, 402 U.S. 935 (1971),

aff'g mem. 318 F. Supp. 710

fs ee ee 11,16,17,18,19,21,23,24,29

Ohio ex rel. Eaton v. Price, 360 U.S. 246 (1959) ......17

Grr vu. Gav, 4460 UB. S06 CTD) og. cee ein 31

Pace v. Alabama, 106 U.S. 583 (1883) ............ 19

Personnel Administrator of Massachusetts v. Feeney,

GOS Us ee UTE ccc ce ecncacdes 22,23,24,25,32

Railway Express Agency, Inc. v. New York, 336

See OES Keak cp pk ect ewndhiaans Cap aea es 31

Regalado v. Johnson, 79 F.R.D. 447 (N.D. Ill. 1978) . .47

Regents of the University of California v. Bakke,

Oe Ry ee MRS «so eras eke seses 23,25,42-43

Rodriguez v. Taylor, 569 F.2d 1231 (3d Cir. 1977),

cert. denied, 436 U.S. 913 (1978) ............... 47

San Antonio Independent School District v.

Po ee. ee ere 28

Schad v. Borough of Mount Ephraim,

ee I ioe ra sb eacsege taxes 41

Seattle School District No. 1 v. State, 90 Wash.

ee Ss re ee Fe RN ok nes aba cee a 27,29

Seattle School District No. 1 v. Washington,

No. C81-276T (W.D. Wash. Dec. 18, 1981)....... 38

" Smith v. Texas, 311 U.S. 128 (1940).............0.. 33

State ex rel. Citizens Against Mandatory Bussing v.

Brooks, 80 Wash. 2d 121, 492 P.2d 536

a ee airs aa oe ee ae nares es 28

State ex rel. Day v. Martin, 64 Wash. 2d 511, 392

NE icy oy Sy olvitccte ace aren 40

State ex rel. Public Disclosure Commission v. Rains,

87 Wash. 2d 626, 555 P.2d 1368 (1976) ...... i

Strauder v. West Virginia, 100 U.S. 303 (1880)....... 22

Swann v. Charlotte-Mecklenburg Board of

Education, 402 U.S. 1 (1971)............ 4,18,27,36

Sweatt v. Painter, 339 U.S. 629 (1950).............. 27

Tillman v. Wheaton-Haven Recreation Ass'n, 517

ee ee eg sacks eo eee a ewe 47

United States v. Board of Education, 88

fee Ff ke SS rer re rere 37

United States v. Carolene Products Co.,

ee I oe aa we teen bao dvw 28

United States v. O'Brien, 391 U.S. 367 (1968)........ 32

United States v. Scotland Neck City Board of

Education, 407 U.S. 484 (1972) ................ 35

Vance v. Bradley, 440 U.S. 93 (1979) ............... 24

Vlandis v. Kline, 412 U.S. 441 (1973) ............... 27

Washington v. Davis, 426 U.S. 229

Raat sage magia Ais AMEND ahi a rar 21,22,23,24,25

Washington v. Washington State Commercial

Passenger Fishing Vessel Association,

- fo & fF | Bere nr ree ee rN? 39,43-44

Wright v. Council of Emporia, 407 U.S. 451 (1972) .. .35

Constitutional Provisions

ie ee 10,14,16,45,46

Se MII, COW os a cide side neds tence ...23

Statutes

Pam Ty GI © BG wae os ok ics Sn een essences 16

N.Y. Educ. Law 3201(1) (McKinney 1970) ........... 17

EEG vs Ge kenya bs bees cuees saeauss 45

re 45

oR Teme By ere ree 37

Se I, wv ns cere ec aah Pe eee canis 37

20 U.S.C. § 3193(b) (Supp. III 1979)................ 43

20 U.S.C. § 3192(b)(2) (Supp. III 1979).............. 44

20 U.S.C. § 3205 (Supp. III 1979) ............... 45,46

ee ee, OIE. no cc KO key hs kee ven ae 1

ee eee 45,46

a ID os xs Soe cee cas pus eas 45,46,49

42 U.S.C. § 2000d (1976),......... 0.0. ccc eee eee 3,42

a eee eee eee eee 43

es NN CINE ok sc nae canGe ek caaeee cae 10

eer rere ry reer 43

Rules and Regulations

34 C.F.R. § 100.3(b)(1 iii) (1981) ene 43

34 C.F.R. § 100.3(b)(2) (1981) 7 43

Other Authority

Abernathy, Title VI and the Constitution:

A Regulatory Model for Defining

“Discrimination,"’ 70 Geo. L.J. 1 (1981)... 43

G. Allport, The Nature of Prejudice (1954) 33

Bell, The Referendum: Democracy's Barrier

to Racial Equality, 54 Wash. L.

a | 28

Brest, The Supreme Court, 1975 Term—Foreward:

In Defense of the Antidiscrimination

Principle, 90 Harv. L. Rev. 1 (1976) ............33

Conf. Rep. No. 798, 92d Cong. 2d Sess. (1972) ...... .26

Ely, Legislative And Administrative Motivation

in Constitutional Law, 79 Yale L.J.

en arg uA els Prats a iiei es ees . 82

J. Ely, Democracy and Distrust (1980).............. 24

H.R. Rep. No. 04-1666 (1976) ......... cece eves 46,49

12 Moore's Federal Practice § 435.01(2] (1981) ...... 45

Proposed Bills on Court Ordered School

Busing—Hearings on S. 528, S. 1147, S. 1647,

& S, 1743 before the Subcomm. on Separation of

Powers of the Senate Comm. on the Judiciary,

97th Cong., let Sess. (19061)... 0.6 cece cece 13

S. Rep. No. 94-1011.......... eee TT 46,47,48

A. Siqueland, Without a Court Order—The

Desegregation of Seattle's Schools (1981)....... 13

U.S. Commission on Civil Rights, Public Knowledge

and Busing Opposition (1973) ..........60000... 31

No. 81-9

In The

Supreme Court of the United States

October Term, 1981

STATE OF WASHINGTON, et al.,

Appellants,

Vv.

SEATTLE SCHOOL DISTRICT NO. 1, et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF APPELLEES

JURISDICTION

Appellants improperly invoke this Court's jurisdiction

under 28 U.S.C. § 1254(2) (1976), as to Appellants’ Question

VIII. See note 44 infra.

STATEMENT OF THE CASE

A. Introduction

This statement is drawn from the District Court's findings

of fact, 473 F. Supp. 996, J.S. A-1 to A-36 (W.D. Wash. 1979),

which the Court of Appeals left wholly undisturbed and in

many particulars expressly affirmed, 633 F.2d 1338, J.S, B-1

to B-29 (9th Cir. 1980), and from the evidence consistent with

those findings. Appellants state as facts many of their

contentions rejected by the courts below.' Because they have

failed to raise any ‘‘very obvious and exceptional showing

of error,”’ however, this Court should not depart from its

steadfast refusal to review such factual findings. Graver

Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S. 271

(1949).

B. Historical Background

The Seattle, Tacoma, and Pasco public school districts

have determined that racial desegregation is an important

educational goal. The overall education of students in a school

system suffers when schools are segregated, and the adverse

effects fall most heavily upon minority students. The greater

the racial imbalance, the greater the impairment. 473 F.

Supp. at 1001 and 1011, J.S. at A-7 and A-25 (Findings of

Fact Nos. 3.1 and 3.1(a) (hereinafter, e.g., ‘FF 3.1"’)). Since

the early 1960's, these public school districts have taken

steps to reduce school segregation. Jd. at 1002-03 and

1005-U /, J.S. at A-8 to A-10 and A-14 to A-18 (FF 3.8, 4.3,

5.1, 6.1, and 6.12). Tacoma and Pasco have assigned students

to other than their “‘neighborhood”’ schools for many years.

Id. at 1002-04, J.S. at A-9 to A-13 (FF 4.3, 4.4, 5.1, and 5.14).

Because the antibusing statute in question arose mainly

in opposition to effective desegregation in Seattle, events

there must be recited in some detail. Segregated housing

patterns in Seattle result in segregated schools under even

a noninvidious neighborhood school assignment policy. /d.

at 1007, J.S. at A-18 (FF 6.14). During the 1960's and 1970's,

the minority residential areas expanded, and racial imbalance

in the schools increased. Jd. at 1006, J.S. at A-17 (FF 6.8);

J.A. 75-83 and 144-50; Def. Ex. A-97.

‘ ourts bel to its present contentions, the United States informed the

— ow that the District Court's findings accurately reflected the

In 1971, after eight years of limited success with voluntary

desegregation transfers, the locally elected Seattle School

Board adopted a mandatory middle school desegregation

program as a back-up to continued voluntary efforts.

Litigation delayed implementation of that program until fall

1972.’ The program also prompted a nearly successful effort

to recall four board members. Jd. at 1002 and 1006, J.S. at

A-8 and A-16 (FF 3.10 and 6.3).

Until the 1978-79 school year, Seattle employed no

additional mandatory desegregation strategies, and school

segregation increased, except in the middle schools. During

1976-77, the District planned and publicized a voluntary

“‘magnet’”’ school desegregation program, which was carried

out in 1977-78. It successfully attracted some new student

movement, but much of that movement was not

desegregative. Jd. at 1006, J.S. at A-16 to A-17 (FF 6.5, 6.6,

and 6.8); J.A. 111.

In early 1977 several organizations, including intervenor-

plaintiffs American Civil Liberties Union, National

Association for the Advancement of Colored People, and

Church Council of Greater Seattle threatened legal action

to force Seattle to desegregate. In April 1977 the NAACP

filed a complaint with the Office for Civil Rights (OCR) of

the Department of Health, Education and Welfare, charging

the District with violating Title VI, 42 U.S.C. § 2000d (1976),

by maintaining purposefully segregated schools. 473 F. Supp.

at 1005-06, J.S. at A-15 (FF 6.1). OCR scheduled an

investigation.

In May 1977 the Mayor of Seattle and the presidents of

the local Chamber of Commerce, Municipal League, and

Urban League urged the Seattle School Board to adopt a

definition of racial isolation and a commitment to its

elimination by a time certain. J.A. 139-40. This broad support

for locally controlled desegregation was consistent with the

* Citizens eed Mandatory Bussing v. Palmason, 80 Wash. 2d 445,

495 P.2d 657 (1972).

Board's belief as to its educational, moral, and legal duty,’

and was an important factor in the Board's June 1977

adoption of a resolution defining segregation (i.e., ‘racial

imbalance’’) and directing its elimination by autumn 1979

through use of educationally sound strategies. J.A. 49-50.

The Board further directed a six-month public planning

process. 473 F. Supp. at 1006, J.S. at A-17 (FF 6.9); J.A.

136-38. In July 1977 the Board established equity of

movement (i.e., roughly equal numbers of minority and

majority students mandatorily assigned to non-neighborhood

schools) as an essential feature of acceptable plans. J.A. 127.

C. The Seattle Plan

On December 14, 1977, after a lengthy public process,

including analysis of five model plans* by a citizens’

* The Board was well aware that there was some likelihood a court could

find unlawful tion in Seattle. J.A. 12-13, 16-17, 74, & 127. Although

unable and unwilling to examine the motives of its predecessors, the Board

was not unreasonable in its pay ee Faculty assignment practices,

for instance, had been similar to those which numerous court decisions

have deemed to further schools’ racial identifiability. Pl. Ex. 69. Other

historical factors, such as drawing of attendance boundaries and student

transfer policies, in some instances bore at least surface similarity to the

facts dee in Columbus Board of Education v. Penick, 443 U.S. 449

(1979); ye Board of Education v. Brinkman (II), 443 U.S. 526 (1979);

Keyes v. School District No. 1, 413 U.S. 189 (1973); and similar decisions.

* The Seattle Plan's goal to reduce racial imbalance is in no sense a “racial

balance plan" directed at achieving the goal of ‘complete racial balance. "’

Brief for United States at 5. No particular — or ratio of minority to

majority students is required. The percentage of minority students in any

school may range from zero, i.e., no minority students, to 20% above the

districtwide minority bgp toon provided that no single minority group

is more than 50% of a school’s student body. J.A. 50. This is a less

demanding desegregation = than has been directed by numerous court

orders reviewed by this Court. afi Swann v. Charlotte-Mecklenburg

Board of Education, 402 U.S. 1, 6-10 (1971). See also McDaniel v. Barresi,

402 U.S. 39, 41 (1971).

The Washington State Board of Education and Washington State

Human Rights Commission have adopted the same definition of ‘racial

isolation” and have stated it to be public policy to eliminate such “racial

isolation’ by whatever means necessary. 473 F. Supp. at 1002, J.S. at

A-8 (FF 3.11); J.A. 65-69.

* Each of the plans relied heavily on mandatory student assignments,

either as an initial strategy or as a backup to voluntary strategies. As

Board member Cheryl Bleakney testified, the public, while preferring

voluntary plans if possible (as did the Board), repeatedly expressed the

—— stability and predictability in student assignment patterns. J.A.

committee and over 30 public hearings, the Board by a vote

of six to one adopted the Seattle Plan for school

desegregation. 473 F. Supp. at 1007, J.S. at A-17; J.A.

141-44. The Plan, which contains elements of several of the

model plans, desegregates elementary schools by ‘‘pairing”’

and “‘triading’’ minority with majority elementary school

attendance areas. Thus, the Plan assigns individual students

not on the basis of their race (as in some mandatory and most

voluntary plans), but together with all other students in their

attendance area. Secondary schools are desegregated by

restructured feeder patterns from elementary, to middle, to

high schools.

Students thus remain, if they choose, with other students

from their immediate neighborhoods in established patterns

from grade school through high school. Any inconvenience

is equitably distributed, with roughly equal numbers of

minority and majority students mandatorily reassigned.

Students subject to mandatory assignments spend roughly

half of their school years near their homes.*

Although the mandatory aspects of the Plan were

necessitated by the failure of 15 years of mostly voluntary

efforts, the Plan retains as much opportunity for voluntary

transfers as in a ‘‘voluntary-first’’ program. 473 F. Supp. at

1007, J.S. at A-17 to A-18 (FF 6.11). Because ‘‘voluntary-

first’’ strategies have inherently unpredictable results at the

individual student and individual school levels, primary

reliance upon them would have required constant

readjustments and last-minute resort to virtually random

mandatory assignments made purely on the basis of

individual students’ race, as the Board learned from its

experience with the middle schools program. J.A. 88. It is

wasteful and self-defeating to make mandatory ‘‘backup”

assignments of students to programs which have been

* The length of bus rides under the Seattle Plan was kept to a minimum.

The average ‘“‘mandatory" bus ride in Seattle is 35 minutes, with 45

minutes maximum. The average “voluntary” bus ride is 40 minutes, with

60 minutes maximum. Rou hly alf of all students in Seattle take buses

to school. Somewhat over half of those students do so as part of the Seattle

Plan, with fewer than half of those moving mandatorily.

uniquely designed to attract students with special interests

or talents. The ‘‘mandatory-first’’ plan based on pairs and

triads permits predictability and stability over time, and has

important educational and practical advantages, without

sacrificing voluntary opportunities. J.A. 130.

Voluntary programs and transportation are considerably

more expensive than mandatory. With the mandatory

assignment patterns of the Seattle Plan, a bus can fill up

with children at a few central stops in a neighborhood and

can take them all directly to the same destination; voluntary

student movement is widely scattered and transportation

correspondingly far less efficient. J.A. 72. Magnet programs

rely on expensive staff, programs, supplies, equipment,

publicity, and annual recruiting efforts to attract students.

State statutes limit the funds that may be raised by special

local property tax levies to spend on such programs. Further,

even assuming whites would volunteer in substantially

increased numbers, Seattle’s minority-area schools lack

capacity to absorb enough white students to desegregate,

especially since even greater numbers of minority volunteers

‘“‘out’’ could not be expected while programs were being

enhanced to attract whites. J.A. 120-31.

As the undisputed testimony of black Seattle School Board

member Dorothy Hollingsworth and black community

leaders established, J.A. 93-96, 191-93, and 196-98; Tr.

218-25, the Board’s adoption of the Seattle Plan was the

realization, through the local political process, of important

minority educational and political goals. Because a voluntary-

only plan under Initiative 350 would destroy the Seattle

Plan’s equity of movement, minority volunteers would

significantly decline from previous levels in reaction to the

white community’s repudiation of desegregation. 473 F.

Supp. at 1007, J.S. at A-18 (FF 6.16); J.A. 94-95, 191-93, and

196-98; Tr. 218-25 and 445-55.’

shaly Headhed qublens apup © Gnpeckortconenety \iak level of vabeeciey

student transfers. 473 F’. 4 at 1006 & 1010, J.S. A-17 & A-24 to A-25

(FF 6.7, 8.5, 9.1, 10.1, & 11.1).

D. Origin and Passage of Initiative 350

A group of citizens unsuccessfully sought to enjoin

adoption of the Seattle Plan, organized Citizens for Voluntary

Integration Committee (CiVIC), and then sought to enjoin

implementation of the Plan. 473 F. Supp. at 1007, J.S. at

A-18 to A-19 (FF 7.1-7.3).

CiVIC also drafted Initiative Measure No. 350 in direct

and sole reaction to the Seattle Plan’s ‘‘forced busing.’”* Jd.

at 1001 and 1008, J.S. at A-6 and A-19 (FF 1.28, 7.4, and

7.9); see 633 F.2d at 1343 and n.2, J.S. at B-4. In composing

the antibusing initiative, the drafters wrote to all

Washington school districts for advice on providing

maximum flexibility for ‘‘normal’’ operations, and then

satisfied all expressed concerns. 473 F. Supp. at 1008, J.S.

at A-19 (FF 7.8); Def. Ex. A-102; J.A. 102-04.° The drafters

specifically prohibited all the mandatory desegregation

strategies of the Seattle Plan and all known mandatory

* The president of CiVIC testified as follows:

8 Isn't it then an accurate statement to say that Initiative 350

was designed specifically to stop the ... mandatory aspect of

the Seattle Plan or any other mandatory plan such as Seattle

or other school districts might adopt?

cA rm That's extremely accurate.

* As to transportation of students for all reasons except desegregation,

the legislative co-chair of CiVIC testified: ‘‘[W]e tried to cover those in

our exceptions.’’ J.A. 189. This CiVIC leader's testimony is instructive,

especially since it was taken in one of the earlier lawsuits, soon after the

initiative was developed, and long before this litigation alerted the

initiative’s proponents to the danger of acknowledging that the initiative’s

only target was mandatory desegregation: ‘‘It was our goal to make this

initiative as flexible as possible not to interfere with the development of

any os in any school district except where they might use

mandatory busing.” J.A. 188-89.

alternatives. 473 F. Supp. at 1010, J.A. at A-24 (FF 8.3-8.6).""

The State agrees that “‘opponents of the plan . . . drafted,

filed, solicited signatures for and campaigned for passage

of Initiative Measure No. 350....'’ Brief of Appellants at 4.

The terms ‘“‘busing,”’ ‘‘forced busing,’ and ‘‘mandatory

busing”’ in connection with Initiative 350 were synonomous

with busing for desegregation. 473 F. Supp. at 1009, J.S. at

A-21 to A-22 (FF 7.22); Tr. 77-78, 265-66, 349-51, 662, and

715; Pl. Ex. 2, Tr. 22. There is a conscious or subconscious

racial factor in at least some opposition to “forced busing.’""!

CiVIC’s campaign to secure the signatures necessary to place

the initiative on the ballot assured that it would affect only

“forced busing” and not “‘traditional’’ student assignment

policies of local districts. 473 F. Supp. at 1008, J.S. at A-21

(FF 7.18). That campaign made clear that the purpose of

Initiative 350 was to stop Seattle’s mandatory desegregation

efforts. Id. at 1007-09, J.S. at A-19 to A-23 (FF 7.5, 7.14,

7.19, and 7.23); Pl. Exs. 38-44 and 51-67.'?

‘© The president of CiVIC testified as follows:

@ Isn't it true that [§ 3 of Initiative 350] was devised specifically

in response to the Seattle Plan in an effort to enumerate those

characteristics of the Seattle Plan which could not be utilized

as an indirect method of getting around the prohibitions of

Initiative 350?

A __ I'd have to answer yes.

J.A. 168-69. The CiVIC co-chair, see note 9, supra, testified that the

prohibitions of § 3 were enumerated because

school districts who are committed to using mandatory bussing to

achieve racial integration might — well use another reason for—at

least state another reason, you see, for implementing that plan. They

might for instance, say that the pairing of schools offered a better

education when indeed their goal was really integration if the

initiative was directed strictly to a racial integration of schools.

If the initiative had been directed to its correcting racial

imbalance, if the initiative had said they may not use bussing beyond

the nearest or next nearest school to the purpose of correcting racial

imbalance, then a school district whose—whose goal might be the

integration of the schools could still adopt a pairing plan and say,

well, this plan isn’t really for integration, it is just to achieve better

“a ror ga I consider that a not very remote possibility.

.A. 188-89.

'" J.A. 91-93, 100-04, & 154-67.

'? For example, advertisements in major newspapers around the state

began: “Initiative 350 was drafted in response to a desegregation plan

enacted by the Seattle school board.”’ Pl. Ex. 38, p. 49, Tr. 486.

In July 1978 the election campaign began. CiVIC’s

spokespersons continued to maintain that the initiative

would affect only ‘‘forced busing”’ for school desegregation,

and repeatedly stated that 99 percent of the State's 300

school districts would not be affected by the initiative. 473

F. Supp. at 1008-09, J.S. at A-21 (FF 7.18-7.20). The three

the initiative would affect are plaintiffs in this action. Jd.

(FF 7.19).

A voters’ pamphlet was mailed to all of the State's

registered voters. The arguments for Initiative 350 by CiVIC

focused on “forced busing.” Pl. Ex. 2, Tr. 22. The arguments

against the initiative warned that the initiative would return

the Seattle, Tacoma, and Pasco public schools to segregation,

and made clear that the initiative arose in reaction to

Seattle's desegregation program. 473 F. Supp. at 1008, J.S.

at A-20 to A-21 (FF 7.13 and 7.14). Both positions recognized

that the initiative had one direct and immediate objective:

halting desegregative non-neighborhood assignments in

Seattle.

The electorate passed Initiative 350 at the November 7,

1978, general election. In Seattle’s predominantly minority

37th Legislative District, the initiative failed. Jd. at 1009,

J.S. at A-22 (FF 7.24 and 7.25).'°

Initiative 350 permits local school districts to assign

students to other than their nearest or next-nearest schools

for all common reasons except desegregation. Jd. at 1010 and

1013, J.S. at A-24 to A-25 and A-29 to A-30 (FF 8.3 and 8.8

and opinion).'* It permits a local community to obtain a

desegregated educational experience for its students only if

a court orders the school district to do so. Jd. at 1011, J.S.

at A-25 (FF 8.9 and 8.10). The initiative would end the

'’ The initiative also failed in the predominantly white 43rd District, which

is generally that area of Seattle joined since 1972 with the 37th District

in the mandatory middle school desegregation program.

'* Defendant State Superintendent of Public Instruction testified he was

unaware of any ‘forced busing,” other than for desegregation, not

encompassed within the exceptions of the initiative. J.A. 96-97.

desegregation programs in Pasco, Tacoma, and Seattle and

prevent Seattle from eliminating racial imbalance. Jd. at

1010, J.S. at A-24 to A-25 (FF 8.5, 9.1, 10.1, 11.1, and 11.2).

E. ‘The Initiative 350 Lawsuit

Prior to Initiative 350's effective date, the Seattle, Pasco,

and Tacoma School Districts, board members from those

districts, and several individuals as guardians of their

student children (the ‘‘school district plaintiffs”) brought suit

charging that Initiative 350 discriminated on the basis of

race in violation of state law, the Fourteenth Amendment,

and Title VI of the Civil Rights Act of 1964, and that the

State and the United States had caused purposeful

segregation that was reflected in Seattle’s schools. R. 1.

A number of parties intervened in the action. The local

intervenor-plaintiffs contended additionally that Seattle was

guilty of purposeful segregation and that if, as a result of

Initiative 350 or otherwise, the District did not voluntarily

desegregate, the court should order it to do so. The claims

that the State and the United States had caused unlawful

school segregation and that Seattle had not adhered to a

noninvidious school assignment policy in the past were

bifurcated for trial, if necessary, as Phase II of the litigation.

The United States intervened as a plaintiff under 42 U.S.C.

§ 2000h-2 (1976). CiVIC and several individuals intervened

as defendants.

F. The District Court’s Decision

After nine days of trial, producing over 2000 pages of

transcript and over 250 exhibits, the District Court

determined that it was

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 7

discriminatory purpose was one of the factors whic

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 mye be under a constitutional duty to do

so even in the absence of a court order.

473 F. Supp. at 1012, J.S. at A-27.

As to the first ground, the District Court relied primarily

upon Hunter v. Erickson, 393 U.S. 385 (1969), and Nyquist

v. Lee, 402 U.S. 935 (1971), aff'g mem. 318 F. Supp. 710

(W.D.N.Y. 1970) (three-judge court). The only difference from

those cases was purely superficial. There, the laws expressly

prohibited or burdened efforts to remedy or protect against

discrimination; Initiative 350 prohibited for all purposes the

use of a technique necessary to remedy segregation, but then

created exceptions for every significant purpose other than

desegregation. ‘‘This is as effective a racial classification as

is a statute which expressly forbids the assignment of

students for racial balancing purposes.” 473 F. Supp. at 1013,

J.S. at A-30.

Under its second rationale, the District Court found that

it could not precisely ascertain the subjective intent of each

person who voted in support of Initiative 350, and that a

judgment could not be based upon what might be “* ‘safely

assume[d]’ as to the subjective intent of the voters.’’ Jd. at

1014, J.S. at A-31. Consequently, the court relied primarily

upon circumstantial indicia of purpose. The court found that

Initiative 350 would result in a substantial increase in public

school segregation, that such an increase would damage the

education of minority children, and that this impact was both

a ‘‘certainty’’ and a contemplated result of the initiative. Jd.

at 1015, J.S. at A-33 to A-34. Moreover, the background and

context of the initiative made it clear that one significant

purpose of Initiative 350 was terminating effective

desegregation. The initiative forbids ‘‘every major effective

technique” of desegregation. Further, it was a ‘“‘marked

departure from the... norm” for “‘an administrative decision

of a subordinate local unit of government”’ to be ‘‘overridden

in a statewide initiative by voters, a great number of whom

were entirely unaffected by”’ the decision. Jd. at 1016, J.S.

at A-35. That departure was even more telling in light of the

traditional local autonomy of school boards with respect to

the assignment of students. Jd.

Third, the District Court held that Initiative 350

improperly applies on its face to a school district under an

affirmative constitutional duty to desegregate, leaving as

its only recourse “‘litigation in order to have a court declare

the course of action that it should take.”’ Jd. at 1016, J.S.

at A-36.

The school district plaintiffs incurred substantial

attorney’s fees and costs in the litigation—funds which would

otherwise have been available for educational purposes.

Nonetheless, the District Court refused to award attorney's

fees to the school district plaintiffs on the grounds that the

public had already paid the fees. J.S. at C-2.

G. The Court of Appeals’ Decision

Despite successful implementation of the Seattle Plan, the

State sought review in the Court of Appeals for the Ninth

Circuit. The State did not specifically dispute any of the

underlying facts found by the District Court. With one judge

dissenting, the Court of Appeals affirmed the conclusion that

Initiative 350 is unconstitutional, but reversed the District

Court’s denial of the school district plaintiffs’ motion for

attorney’s fees.

As to the constitutional issues, the Court of Appeals found

it necessary to discuss only the District Court’s conclusion

that Initiative 350 embodies an invidious racial classification,

agreeing with the District Court that Initiative 350 was

materially indistinguishable from the statute overturned by

this Court in Lee. 633 F.2d at 1342-43, J.S. at B-4 to B-5.

In short, ‘Initiative 350 embodies a constitutionally-

suspect 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.” Jd. at 1343-44, J.S. at B-5. If it

were to make a difference that the classification was covertly

rather than overtly embodied in the initiative, ‘'[ljawmakers

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."’ Jd. at

1344 and n.4, J.S. at B-6 to B-7.

As to attorney's fees, the Court of Appeals held that

nothing in the plain language or legislative history of the

relevant statutes foreclosed or limited awards to publicly

funded plaintiffs. Jd. at 1348, J.S, at B-14 to B-15, On the

contrary, such awards would further the congressional

purposes of encouraging vindication of constitutional rights

and stimulating voluntary compliance with the law. Jd.

The Court of Appeals denied rehearing and rehearing en

banc, J.S, at E-1, and this Court subsequently noted probable

jurisdiction.

Now in its fourth year, the Seattle Plan has not only

successfully desegregated the public schools, but has done

80 with significant community support and without violence

or racial tension.'* As the Court of Appeals noted, ‘the

‘Seattle Plan’ in particular has been hailed as a model for

other large cities.’’ 633 F.2d at 1341, J.S. at B-1.

'* The Seattle Plan achieved its goal of elimination of racial imbalance

in 1979 and has maintained desegregated schools since, Desegregated

education has become institution in Seattle. After extensive citizen

involvement, the School Board in February 1981 adeates a three-year

plan to maintain stable desegregated schools, again citing its ‘legal and

educational duty."' For a current account of desegregation in Seattle, see

crapeare Bills on Court Ordered School Busing—Hearings on S. 528, S.

1147, S. 1647, & S. 1743 before the Subcomm. on Separation of Powers

of the Senate Comm. on the Judiciary, 97th Cong., 1st Sess, (1981) (October

16, 1981, statement of Suzanne Hittman, Seattle School Board President).

For an historical account of development of the Seattle Plan, see A.

7 i. . Without a Court Order—The Desegregation of Seattle's Schools

SUMMARY OF ARGUMENT

The District Court correctly recognized three ways in

which Initiative 350 violates the Fourteenth Amendment.'*

If this Court finds support for any one of the bases of

unconstitutionality, as did the Court of Appeals, the

judgment must be affirmed.

First, Initiative 350 directly embodies an invidious racial

classification admittedly unsupported by any compelling

state interest. Designed to treat student assignments for

desegregation differently from all other student assignment

matters, it operates to maintain and increase segregation,

to inhibit equal educational opportunity, and to deny

(cont.)

Contrary to the ‘conventional wisdom" that mandatory busing for

desegregation causes substantial ‘white flight’’ and is therefore

counterproductive, white student attrition in Seattle has been roughly

the same in the four years of the Seattle Plan's operation as it was in

the three years p ng the Plan, The white loss from predominantly

minority and transition areas, which is ‘‘certain’ with a neighborhood

assignment policy, has been reduced, See 473 F. Supp. at 1010-11, J.S.

at A-25 (FF 11.3). Test scores in Seattle have slightly improved; significant

improvements are expected in the longer term, consistent with the national

research, Moreover, even apart from test scores, a diverse student body

better prepares students for life in a pluralistic society, Thus, the

experience in Seattle is consistent with that nationwide, as shown by the

State's own Ex, A-133, Tr. 1346 (Harris Poll) at pp. ix, x, and 40;

While there are whites who are still emotionally disturbed at

the notion of oy for racial balance, the almost automatic

claim that “busing is a disaster’’ simply does not hold up in

the face of the facts from this study. ... The irony of busing

to achieve racial balance is that rarely has there n a case

where so many have been opposed to an idea, which appears

not to work badly at all when put into practice... . Amon

whites whose children have been bused for desegregation, 78%

say the experience is satisfactory or highly satisfactory.

'* Whether Initiative 350 violates the State Constitution was euprocsty

left unaddressed by the District Court. 473 F, Supp. at 1016, J.S, at A-36,

If the District Court and Court of Appeals were incorrect as to federal

law, the case should be remanded for application of state law and, if

necessary, for Phase II of the litigation, See femageon Heights v.

Metropolitan Housing Development Corp., 429 U.S, 252, 271 (1977).

minority interests, School operations in Washington have

traditionally been local matters, and only after adoption of

the Seattle Plan for desegregation did the voters of the State

as a whole feel the necessity to dictate student assignment

policy in one narrow area to three local districts. In so doing,

Initiative 350 restructures the political process in a non-

neutral manner by foreclosing to minorities the traditional

mechanism of influencing one's local school board as a means

of attaining educational goals.

Second, the District Court's finding that Initiative 350

purposefully discriminates against racial minorities is

compelled by the evidence. Prior to the election, it was well

known to the electorate that the initiative would end the

Seattle Plan and dramatically increase school segregation,

and that voluntary desegregation efforts had failed and

would fail again. The context and purpose of Initiative 350

was opposition to the Seattle Plan and effective school

desegregation. Discriminatory purpose was also reflected in

the procedural departure from the norm represented by the

first use of the statewide initiative process to deal with a

traditionally local school district matter in one area, racial

desegregation, and—by careful design—only in that area.

Further, the absence of a close relationship between the

antibusing initiative and any permissible purpose, as well

as evidence of subjective intent, both reflected discriminatory

purpose.

Third, Initiative 350 unconstitutionally interferes with the

affirmative duty of school districts to remedy past unlawful

segregation. It prohibits local school districts from assigning

students beyond their neighborhood schools, except pursuant

to court order, without regard to whether those local school

districts have or perceive a constitutional duty to

desegregate. Because the statute on its face is susceptible

of application to constitutionally required conduct, it is

invalid,

Finally, the Court of Appeals correctly held that the

successful school district plaintiffs are entitled to their costs

and attorney's fees. Federal law requires such an award

unless special circumstances render it unjust. No such

circumstances exist here. Indeed, a denial of costs and fees

would mean that school board members must choose between

surrendering the constitutional rights of their students,

which they are sworn to uphold, or irreparably diverting

necessary funds from education.

ARGUMENT

A. Initiative 350 Embodies a Racial Classification

Disadvantaging Minorities

The Court of Appeals and the District Court properly relied

upon Hunter v. Erickson, 393 U.S. 385 (1969), and Nyquist

v. Lee, 402 U.S. 935 (1971), aff'g mem. 318 F. Supp. 710

(W.D.N.Y. 1970), in concluding that Initiative 350 reflects

an invidious racial classification unjustified by any

compelling state interest.

1. Hunter and Lee

In Hunter this Court held that § 137 of the Akron City

Charter violated the Fourteenth Amendment. The charter

provision, which was added by a referendum, prevented the

city council from implementing, without the approval of a

majority of voters, any ordinance dealing with racial,

religious, or ancestral discrimination in housing. The

provision thus created ‘‘an explicitly racial classification

treating racial housing matters differently from other racial

and housing matters."’ Jd. at 389. The Court pierced the

superficial neutrality of the provision: ‘‘although the law on

its face treats Negro and white, Jew and Gentile in an

identical manner, the reality is that the law’s impact falls

on the minority."” Jd. at 391. Applying the ‘suspect

classification’’ test to the provision, the Court found that

none of Akron’s justifications amounted to a compelling state

interest.

Justice Harlan’s concurrence focused on § 137's

restructuring of the political process in a racially

discriminatory manner: “Here, we have a provision that has

the clear purpose of making it more difficult for certain racial

and religious minorities to achieve legislation that is in their

interest.’’ Jd. at 395. Such a provision is “discriminatory on

its face,’ and must fall ‘‘unless it can be supported by state

interests of the most weighty and substantial kind."’ Jd. at

393.

In Lee a three-judge court held Hunter dispositive as to

a New York statute prohibiting student assignments and

certain other actions “for the purpose of achieving racial

equality in attendance.”’ 318 F. Supp. at 712. Like Initiative

350, the New York antibusing statute had the effect of

differentiating between racial matters and other problems

in the same area. Hunter, according to the court in Lee,

stands for the principle that ‘the state creates an ‘explicit

racial classification’ whenever it differentiates between the

treatment of problems involving racial matters and that

afforded other problems in the same area." Jd at 718. Because

the lower court's sole stated rationale and any possible

alternative theories in Lee apply equally to Initiative 350,

this Court’s summary affirmance is controlling here. Ohio

ex rel. Eaton v. Price, 360 U.S. 246, 247 (1959)."”

'' The United States contends that Lee may be explained on two grounds

that make it inapplicable here. First, it is said that the statute in Lee

“clearly prohibited ‘all efforts to achieve racial balance’ (318 F. Supp. at

715)....° Brief at 25. Second, the statute in Lee prohibited race-conscious

assignments “pursuant to a court finding of unconstitutional

segregation,"’ and thus this Court's affirmance was governed by the

decision two weeks earlier in North Carolina State Board of Education

v. Swann, 402 U.S. 43 (1971). Brief at 25-26 & n.27. Neither distinction

is satisfactory.

The statute in Lee, like Initiative 350, dealt only with desegregative

student assignments and related techniques. 318 F. Supp. at 712. If

anything, the prohibitions of Initiative 350 are broader in that § 3 prohibits

desegregative school pairing, merging, or clustering; desegregative grade

restructuring; and coosqregns feeder schools. Neither the New York

statute nor Initiative 35 A tc weamea voluntary desegregation efforts. See

N.Y. Educ. Law 3201(1) (McKinney 1970). Thus, the Lee court's comment

that the statute “clearly applies to all efforts to achieve racial balance”

must have reflected only the court's earlier conclusion that voluntary plans

2. Initiative 350’s Race-Consciousness

As the Court of Appeals and the District Court recognized,

Init. ative 350 is like the charter provision in Hunter and the

statute in Lee. It is race-conscious in its history and race-

related in its purpose and effect. The initiative draws a

distinction between those groups who seek the law's

protection against racial discrimination in student

assignments and those who seek to regulate student

assignments in the pursuit of other ends. Compare Hunter,

393 U.S. at 390.

Initiative 350’s drafting and campaign history plainly

demonstrates the intention to limit student assignments for

desegregation, but not to limit any other assignments, as

is suggested by the very name of the proponents—Citizens

for Voluntary Integration Committee. In the course of

drafting, the exceptions to the ‘‘nearest or next-nearest’’ rule

and the desegregation tools specifically prohibited were both

expanded. Although more artfully crafted than the statute

in Lee, the initiative was offered to, and accepted by, the

electorate as the most recent step in opposition to ‘‘forced

busing,” i.e., effective desegregation. Compare 318 F. Supp.

at 716-17.

The law's purpose and effect plainly fall on the minority,

by dismantling local school desegregation programs,

preventing future adoption of such programs, injuring

educational achievement of minority students, and requiring

(cont.)

“have not had a significant impact on the problems of racial se ation

in the Buffalo public schools; indeed it would appear that racial isolation

is actually increasing.” 318 F. Supp. at 715. That is precisely the situation

in this case, and the Justice Department's attempted distinction merely

reemphasizes the applicability of Lee.

The same is true with respect to the second ‘‘distinction.'’ There was

no “court finding of unconstitutional segregation” in Lee. The statute

was struck down in its —— not _ as applied to districts under court

orders to as. Indeed, the district court in Lee specifically upheld

the personal standing of parents of children in schools suffering only from

“de facto segregation,” which there is ‘‘no constitutional duty to undo."

Id. at 713-14. Thus, if Lee was directly controlled by the Swann cases,

it was by McDaniel v. Barresi, 402 U.S. 39 (1971), discussed infra at 41-42,

which upset state court interference with race-conscious student

assignments by a local district not acting under a ‘‘court finding of

unconstitutional segregation.”

expensive and time-consuming litigation for the vindication

of constitutional rights. In Hunter, this Court noted that only

minorities need the protection of a fair housing law to halt

segregative housing choices by whites. 393 U.S. at 391. Here,

as in Lee, only minorities need the protection of a

desegregation plan to halt segregative school choices by

whites.

As in Hunter, the initiative specially burdens, indeed

forecloses, the attainment of important minority educational

and social goals through the local political process. In Hunter

local voters could still enact fair housing ordinances, but

Initiative 350 flatly prohibits local non-neighborhood

assignments for desegregation, absent a court order. The

requirement that any amendments to Initiative 350 be

adopted at the state, rather than the local, level effectively

removes from Seattle’s minority community any realistic

hope of amendment. See note 28 infra.

The State asserts that there is no unique burden on

minorities for three reasons: First, the Seattle Plan reassigns

some members of all races, and terminating the Plan

necessarily affects them all. Second, many minority parents

dislike non-neighborhood assignments. Brief of Appellants

at 19-20. Third, the initiative might have some application

to assignments unrelated to desegregation. Jd. at 10.

The first reason is merely the suggestion—repeatedly

rejected by this Court—that separate schools, separate

seating, antimiscegenation statutes, repeal of

antidiscrimination laws, and the like affect both blacks and

whites.'* The correct approach is shown by Goss v. Board

of Education, 373 U.S. 683 (1963), where the Court

ad Eg. Loving v. Virginia, 388 U.S. 1, 8 (1967) (“The mere fact of equal

plication does not mean that our analysis of these statutes should follow

the approach we have taken in cases involving no racial discrimi-

nation... .'"); McLaughlin v. Florida, 379 U.S. 184, 188 (1964) (“all whites

and Negroes who engage in the forbidden conduct are covered by the

section and each member of the interracial couple is subject to the same

= > Anderson v. Martin, 375 U.S. 399, 403 (1964) (fact that

candidates of ali races must designate race on ballot does not remove

requirement’s “purely racial character and purpose’). The State is

: vee unaware that McLaughlin overruled Pace v. Alabama, 106 U.S.

(1883).

unanimously held that ‘‘[t]he alleged equality—which we view

as only superficial—of enabling each race to transfer from

a desegregated to a segregated school does not’’ remove the

action’s ‘‘purely racial character and purpose."’ Jd. at 688.

The second reason is simply irrelevant. Everyone, including

the Seattle School Board, would prefer to accomplish school

desegregation in some other manner. Yet, the record in this

case establishes that mandatory non-neighborhood

assignments were essential to effective desegregation, and

that minority parents had invoked the local political process

and accepted some inconveniences to obtain desegregated

education. Even if minority leaders had opposed the Seattle

Plan, that would not justify a denial of the interests of other

minority children. See Castaneda v. Partida, 430 U.S. 482

(1977); id. at 503 and n.2 (Marshall, J., concurring).

Third, in the hope of escaping the conclusion that the

initiative is a racial classification, the State strains to apply

it to nonracial student assignments. These situations, which

either do not occur in the real world or else fall within the

broad exceptions to the initiative,'® are nothing more than

after-the-fact speculation as to possible, unintended side

'* For instance, there is no evidence in the record that school districts

assign students to other than their nearest or next-nearest school to

“balance class size.'’ The Spokane cate: + ag article (Ex. A-130) cited by

the State, Brief at 10 n.6, was successfully objected to as hearsay, and

was admitted only for the limited purpose of showing what was before

some voters prior to the Initiative 350 vote. Tr. 937. The witness through

whom the State wished to make its point testified that the only non-

neighborhood busing in Spokane is due to ‘‘overcrowding,”’ Tr. 934, which

of course is among the initiative’s exceptions.

The suggestion that districts would transport students away from

neighborhood schools simply to secure transportation reimbursement from

the State is likewise unfounded. In recent years the State has reimbursed

a substantial portion of, but far from all, local transportation expenses.

Because local districts must centribute their own resources to any

transportation, it is always a losing proposition financially.

effects of a measure designed to affect only racial matters.

Initiative 350 must be construed as repeatedly interpreted

by its sponsors.”” CiVIC consistently denied that the

initiative would affect anything but desegregation busing.

The State’s argument, that a statute which clearly and

admittedly was intended to deal with race relations can be

saved by additional but unanticipated impacts, stands

Washington v. Davis, 426 U.S. 229 (1976), on its head.”

3. Overt v. Covert Classifications

The only difference between the statute here and that in

Lee is one of form and not substance. Initiative 350 was more

carefully drafted—-and purposefully so. Thus, unless clever

language excuses the same objective as in Lee and Hunter,

Initiative 350 must be subjected to strict scrutiny.

That Hunter and Lee apply to artful as well as obvious

racial classifications is clear from Buchanan v. Evans, 423

U.S. 963, aff'g mem. 393 F. Supp. 428 (D. Del. 1975). In that

case, a statute directed officials to consider consolidating the

state’s school districts, with two exceptions, into a smaller

number of districts. The district court found the two

exceptions—Wilmington and districts with over 12,000

pupils—were intended to preclude desegregative

consolidations of other districts with the largely minority

Wilmington district. Although consolidating Wilmington

with other districts could still be accomplished by

referendum, although one other district was inadvertently

excluded by the 12,000-student provision, although there was

* The basic rules of construction mo ad to enactments of the

legislature also apply to direct legislation by the people. State ex rel. Public

Disclosure Commission v. Rains, 87 Wash. 2d 626, 633, 555 P.2d 1368,

1373 (1976). Determining the collective intent of the people is the objective,

and material in the official voters’ pamphlet is relevant. Department of

Revenue v. Hoppe, 82 Wash. 2d 549, 552, 512 P.2d 1094, 1096 (1973).

** Nor is the argument supported by James v. Valtierra, 402 U.S. 137

(1971). The referendum at issue in James oo not to integrated housing

but to low-income ae a and the Court found no evidence that it was

in fact an inadvertently broad statute aimed only at race relations in

pe ene A Id. at 141. Here the critical fact of race-consciousness is openly

admitted.

no finding of an interdistrict constitutional violation, and

although the statute was “racially neutral on its face,”’ the

district court found that the statute reflected ‘‘a suspect

racial classification.”’ 393 F. Supp. at 442. This Court

affirmed summarily, with three Justices dissenting on other

grounds.

Concern with transparently race-conscious statutes did not

end with Evans:

This rule applies as well to a classification that is

ostensibly neutral but is an obvious pretext for racial

discrimination. Yick Wo v. Hopkins, 118 U.S. 356;

Guinn v. United States, 238 U.S. 347; cf. Lane v. Wilson,

307 U.S. 268; Gomillion v. Lightfoot, 364 U.S. 339.

Personnel Administrator of Massachusetts v. Feeney, 442

U.S. 256, 272 (1979). Such a racial classification is

presumptively invalid, regardless of any other proof of

motivation and regardless whether the classification is

“covert or overt.’’ Id. at 274. Feeney is thus consistent with

the Court's duty to strike down ‘‘sophisticated as well as

simple-minded modes of discrimination.” Lane v. Wilson, 307

U.S. 268, 275 (1939).

The courts below correctly concluded that Initiative 350

creates a racial classification. It is not the rare classification,

such as those in Korematsu v. United States, 323 U.S. 214

(1944), or Strauder v. West Virginia, 100 U.S. 303 (1880), that

expressly burdens only a racial minority. Nor is it a

classification, such as those in Brown v. Board of Education,

347 U.S. 483 (1954); McLaughlin v. Florida, 379 U.S. 184

(1964); and Hunter, that mentions race, and race relations,

but does not expressly burden one race more than another.

* The ‘‘covert or overt” language in Feeney is also consistent with the

jury discrimination cases. In those cases, no classification is explicit on

the face of the law. Substantial underrepresentation in practice, however,

is sufficient to shift the burden to the state to rebut the suggestion of

discriminatory purpose. Castaneda v. Partida, 430 U.S. 482, 494-95 (1977);

accord, Washington v. Davis, 426 U.S. at 241. This case is an even clearer

one for shifting the burden since it is admitted that the law in fact deals

with racial matters.

Instead, it is a classification, such as those in Gomillion, Yick

Wo, and Guinn,” all mentioned approvingly in Feeney, that

only transparently avoids the express mention of race and

race relations, but that undeniably deals with both.

4. Necessity of Further Proof of Purpose

Finally, the State asserts that its appeal rests on the

proposition that after Washington v. Davis ‘‘courts are no

longer free to presume from the face of a given statute—as

was done in Hunter and Lee—that an illicit segregative

purpose motivated its passage.’’ Brief of Appellants at 23

(emphasis in original). The assertion that Davis overturned

Hunter and Lee is simply wrong. Race-conscious statutes—

such as those in Hunter, Lee, and this case—by their very

concern with racial matters create a risk that bias infected

the majority's consideration of minority interests, at least

where they do not benefit the minority. Compare Regents

of the University of California v. Bakke, 438 U.S. 265, 357

(1978) (opinion of Brennan, White, Marshall, & Blackmun,

J.J.).2* Only the absence of any alternative means of

satisfying a compelling state interest is normally sufficient

to dispel that suspicion of antipathy.

Accordingly, Hunter was cited approvingly in Davis, which

went on to state “‘[t]hat is not to say that the necessary

discriminatory racial purpose must be express or appear on

the face of the statute... .’’ 426 U.S. at 241. The Court has

since made it clear that, because the statutes in Hunter and

the present case burden minorities and involve concern with

racial matters, they are not the kind of neutral laws with

** In Guinn v. United States, for example, the Court struck down an

Oklahoma constitutional amendment that imposed a literacy test for

voting but grandfathered all those who had voted in 1866 and their lineal

descendants. Because the 1866 election was the last major election before

adoption of the Fifteenth Amendment, the Oklahoma scheme covertly

reflected a racial classification. 238 U.S. at 364. Initiative 350 is equally

clever, but equally obvious.

** Contrary to the Bakke situation, where the governmental benefit to

the minority is at the expense of the majority, elementary and secondary

school desegregation deprives no one of the benefit of an education.

inadvertent impact authorized by Davis. As the Court stated

in Feeney: ‘‘Certain classifications, however, in themselves

supply a reason to infer antipathy. Race is the paradigm.

A racial classification, regardless of purported motivation,

is presumptively invalid and can be upheld only upon an

extraordinary justification.’’ 442 U.S. at 272.

If Davis, which involved no express or implicit race-

consciousness and no allegation by plaintiffs of

discriminatory purpose, and Arlington Heights, which

involved no express race-consciousness and insufficient proof

of implicit consideration of race, overturn Hunter and Lee,

then this Court and others must seek out direct evidence of

racial prejudice in every case. It has always been enough to

invoke strict scrutiny that the majority was dealing, overtly

or covertly, with matters that present an inherent risk of

antipathy toward minority interests. See Vance v. Bradley,

440 U.S. 93, 97 (1979). That risk is sufficient to shift to the

State the burden of dispelling the inference of prejudice,

usually by establishing ‘‘an extraordinary justification” for

the action. See Loving v. Virginia, 388 U.S. 1, 9-11 (1967);

J. Ely, Democracy and Distrust 145-48 (1980). Any other rule

would place the courts in the unnecessary and unwise

position of protecting minority interests only by directly

accusing other branches of government of racial prejudice.

5. Conclusion

The Court cannot fail to recognize the potential for the

corruptive influence of prejudice in a decision whether to

allow desegregation. No other proof of invidious purpose is

necessary. Instead, the burden should shift to the State to

show, for example, that the State interest was sufficiently

compelling, and the sacrifice of desegregation sufficiently

necessary, to outweigh the potential for corruption. That is

a burden the State never even attempted to satisfy. Instead,

the initiative contradicts the ‘‘compelling”’ state interest in

public school desegregation. DeF unis v. Odegaard, 82 Wash.

2d 11, 35, 507 P.2d 1169, 1184 (1973), vacated as moot, 416

U.S. 312 (1974).

B. Discriminatory Purpose Was a Factor In

Initiative 350’s Adoption °

Even if the covert but conceded race-consciousness of

Initiative 350 were not enough to invoke strict scrutiny, the

District Court correctly concluded, under the second prong

of Feeney, that a discriminatory purpose was at least one

factor in the proposal and adoption of the initiative.

In Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252 (1977), the Court reviewed

some of the important indices of whether a governmental

action is impermissibly infused with purposeful

discrimination:

(a) ‘The impact of the official action—whether it ‘bears

more heavily on one race than another,’ Washington v.

Davis, supra, 426 U.S. at 242—may provide an

important starting point.’

(b) “The historical background of the decision,”

including the ‘‘specific pea of events leading to the

challenged decision”’ and procedural and substantive

departures from the norm in connection with the

decision, is important circumstantial evidence.

of the decision may provide direct evidence of purpose

and of subjective intent.

Id. at 266-68. Substantial evidence, ignored by the State,

supports the District Court’s conclusion that Initiative 350

is purposefully segregative under Arlington Heights.

1. Segregative Impact

The dramatic increase in minority racial isolation that

Initiative 350 would have caused was fully foreseen, not just

** Initiative 350 makes impossible attainment of public schocls’ legitimate

educational goal of racially diverse student bodies. The institutional

interest in diverse student bodies is not only legitimate but is one aspect

of academic freedom protected by the First Amendment. F'egents ofthe

University of California v. Bakke, 438 U.S. 265, 311-15 (1978) (Powell, J.).

easily foreseeable. See Columbus Board of Education v.

Penick, 443 U.S. 449, 464-65 (1979). Both lower courts

concluded that Initiative 350 was directed only at racial

desegregation. 473 F. Supp. at 1010, J.S. at A-24 (FF 8.3);

633 F.2d at 1343-44, J.S. at B-5 to B-6. Both courts found

it would be impossible to desegregate Seattle's schools

without resort to the methods prohibited by the initiative.

473 F. Supp. at 1010, J.S. at A-24 (FF 8.5); 633 F.2d at 1346,

J.S. at B-11. Moreover, the inconvenience of desegregation

would no longer have been shared equitably. Rather, the

limited desegregation obtainable under Initiative 350 would

result largely from efforts of minority students. 473 F. Supp.

at 1006-07, J.S. at A-16 to A-18 (FF 6.6, 6.7, and 6.16).

Further, the District Court below concluded that the racial

isolation under Initiative 350 would disproportionately injure

the education of minority students. Jd. at 1001, 1011, and

1015, J.S. at A-7, A-25, and A-33 (FF 3.1, 3.1(a)); see 633 F.2d

at 1346-47, J.S. at B-9 to B-13.** That same finding as to both

purposeful and non-purposeful segregation by the district

court in Brown v. Board of Education was adopted by this

Court: ‘‘Segregation of white and colored children in public

schools has a detrimental effect upon the colored children.

The impact is greater when it has the sanction of

law. ...’’ 347 U.S. 483, 494 (1954) (emphasis added); accord,

** The United States now closes its eyes to Initiative 350's effect on the

educational benefits to minority students from desegregation, in spite

of the District Court's findings. Contrary to the current position of the

United States, the District Court did not merely ‘‘assume” a detrimental

impact on minority student education, but found such an impact as a fact

after both sides had presented their evidence. Congress has itself reached

the same conclusion. Conf. rv¢ No. 798, 92d Cong., 2d Sess., reprinted

in 1972 U.S. Code Cong. & Ad. News 2608, 2662-63. The United States

cannot wave aside such fact-finding merely by referencing certain extra-

record publications, Brief at 38-39 n.39, especially when the publications

do not stand for the proposition cited.

Sweatt v. Painter, 339 U.S. 629, 634 (1950).*” Further, the

critical importance of the minority interest in question

emphasizes the significance of the evidence of anticipated

impact. Cf. Vlandis v. Kline, 412 U.S. 441, 459 (1973) (White,

J., with Marshall, J., concurring).

2. History and Context of the Initiative's Adoption

The historical background of Initiative 350, the sequence

of events leading to its enactment, and the legislative and

administrative history of the initiative all make clear that

impeding effective desegregation was a purpose, and not just

an unfortunate and unintended effect, of the measure. The

initiative was conceived solely in response to Seattle's

desegregation program, as appellants have conceded and

both courts below found. A comparison of the major features

of the Seattle Plan with those actions that school officials

may not take under § 3 of the initiative quickly confirms the

initiative's invidious purpose; a racially neutral neighborhood

schools policy is unlikely to be expressed in such

desegregation-specific language.

Nonetheless, the State suggests that the courts below

believed that a policy of neighborhood schools is per se

purposeful discrimination. That innuendo is unfounded. The

Court of Appeals specifically stated that a ‘‘neighborhood

school policy is not constitutionally suspect." 633 F.2d at

1345, J.S. at B-8. In this case, however, both the objective

factors and the direct evidence indicate that at least one

purpose of statewide opposition to ‘‘forced busing"’ was the

racially discriminatory purpose to impede school

desegregation.

*" The State's attempt to narrow the legitimate educational concerns of

school districts to the results of achievement tests, Brief at 41-42 n.9,

lacks support. Preparing children to participate as citizens in a pluralistic

democracy entails more than teaching them to read and count. E.g.,

Ambach v. Norwick, 441 U.S. 68, 77 (1979) (schools serve in our society

as “an ‘assimilative force’ lata diverse and conflicting elements in

our society are brought ron a broad but common ground"); Swann

v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16 (1971);

a aeen tat ‘ee 0. 1 v. State, 90 Wash. 2d 476, 517-18, 585 P.2d

' 4- ).

This situation is identical to that hypothesized in Arlington

Heights as reflecting improper purpose. The Court

distinguished the specific sequence of events there—a

longstanding low-density zoning designation—from ‘‘a far

different case,’’ in which the property has previously been

zoned to accommodate low-income, multifamily housing, but

where the zoning is upgraded to preclude erection of an

integrated housing project. 429 U.S. at 267. Such a situation,

without any other direct evidence of racial bias, creates a

prima facie suspicion of purpose. Here, the longstanding

condition was local control of assignments, and not on a strict

neighborhood basis, until effective desegregation was

proposed.

Further, use of the statewide initiative process by

uninvolved voters to deal with a local school district matter

was an unprecedented departure from the norm.” No prior

enacted initiative has dealt with such local school district

matters. The argument of the State, Brief at 22, that

Initiative 350 merely corrected the one oversight in an

* Statewide action Np een local decisions benefiting minority groups

is icularly troubling because minorities with substantial power in the

urban districts are relatively politically powerless in the State as a whole.

- San Antonio Independent School District v. Rodriguez, 411 U.S. 1,

28 (1973); Kramer v. Union Free School District No. 15, 395 U.S. 621, 628

(1969); United States v. Carolene Products Co., 304 U.S. 144, 152-53 n.4

(1938); Bell, The Referendum: Democracy's Barrier to Racial Equality,

54 Wash. L. Rev. 1 (1978).

That is reflected in the fact that a significantly smaller percentage voted

for the initiative in Seattle (less than 58%) than in the remainder of the

State (over 67%). Def. Ex. A-105, p. 7, Tr. 774.

In elections for two board seats in November 1979, when virtually the

only issue which received media attention was desegregation, pro-Seattle

Plan candidates defeated anti-Seattle Plan candidates. In one of the races,

the incumbent (who had voted to adopt the Seattle Plan) defeated the

resident of CiVIC. In the November 1981 elections, three of the seven

seats were open, Again, desegregation was an issue, but in each

case outspoken — of mandatory desegregation were defeated.

That efforts to elect antidesegregation candidates and to recall pro-

Ceecqregatien board members, see State ex rel. Citizens Against

Mandatory Bussing v. Brooks, 80 Wash. 2d 121, 492 P.2d 536 (1972), have

been unsuccessful also reflects the ability of minorities to build political

coalitions in Seattle.

otherwise perfect scheme of total state control, was not

presented to the courts below prior to the Court of Appeals’

decision, Jenkins v. Anderson, 447 U.S. 231, 234 n.1 (1980),

and is unsupportable in any event.

In Washington, as in other states, local boards are created

by the State and operate within certain broad limitations.

In Washington, as in few other states, however, the State

is required to fund ‘“‘basic education,’’ and therefore had to

give content to that term. Seattle School District No. 1 v.

State, 90 Wash. 2d 476, 585 P.2d 71 (1978). In practice,

nonetheless, local boards still control the operational specifics

of ‘‘basic education"’ and independently fund and define

“enrichment"’ programs.** The State in some areas sets

minimum standards, but even those standards generally

defer to local practices. That is not substantially different

from the national pattern of local school district control, as

CiVIC realized and the State Board of Education confirmed.

J.A. 70 and 98."

Moreover, in Washington, as in other states, student

assignments have always been within the control of local

authorities, and remained so after Initiative 350 for all

common purposes other than desegregation. Prior to

Initiative 350, local districts had the authority under state

law to assign students for purposes of desegregation. Citizens

Against Mandatory Bussing v. Palmason, 80 Wash. 2d 445,

495 P.2d 657 (1972).

* Currently, only 55% of Seattle School District's funding comes from

the State as “basic education” support.

” The District Court and the Court of yy so concluded, 473 F. ae.

at 1010 & 1016, J.S. at A-23 to A-24 & A-35 (FF 8.20 and opinion); 633

F.2d at 1343 n.2 & 1344, J.S. at B-4 to B-7, and are in a far better position

to assess local law and local practice than is this Court. Cort v. Ash, 422

U.S. 66, 72 n.6 (1975). The similarities between the Washington education

system and the national pattern are discussed in greater detail in the brief

of amicus National School Boards Association.

3. Lack of Relationship Between Means and

Permissible Ends

Although not discussed in Arlington Heights, improper

purpose is also objectively reflected in the lack of a close

relationship between Initiative 350 and any of its asserted

noninvidious objectives. The antibusing initiative, say

appellants, was intended to achieve ‘‘neighborhood schools,”’

which are desirable because they encourage local involvement

in education and reduce student transportation time, risk,

and expense. The degree of relationship between those

objectives and Initiative 350 is instructive.

First, increasing local control and involvement in schools

and decreasing transportation time were far from ignored

in the Seattle Plan. The Plan was locally formulated and

approved, and it generally keeps neighborhoods together.

Although there are bus rides, their length is reasonable, see

note 6 supra, and children spend at least half their years at

nearby schools. Thus, the intense statewide interest in

Initiative 350 can not be explained by pointing to those

noninvidious concerns.

Second, the initiative is not substantially better suited than

the Seattle Plan to achieving the purposes said to underlie

a neighborhood schools policy. Rather than furthering local

involvement and control, Initiative 350 replaces it with a

statewide mandate. Indeed, the State and the United States

go to great lengths to disclaim local responsibility for schools

in Washington.

Furthermore, Initiative 350 leaves untouched school

closures—the most drastic removal of the neighborhood

school possible—and all common exceptions to neighborhood

school assignments other than desegregation. This dramatic

underinclusiveness reflects a conclusion by the majority that

the minority’s interest in desegregated education is

qualitatively less important than any other common, and

basically fiscal, reason for transporting students.

Neighborhood schools give way to the desire to save money

by closing schools or by avoiding removal of “health or safety

hazards'’ or ‘‘physical barriers,’’ building of new

neighborhood schools to eliminate ‘‘overcrowding,”’

maintenance or rehabilitation of neighborhood schools to

avoid ‘‘unsafe conditions or lack of physical facilities,"’ or

provision of “special education, care or guidance’’ within the

neighborhoods of handicapped students.

The majority did engage in a ‘‘tradeoff"’ of interests as the

United States suggests. Brief at 43, but it was a tradeoff

that sacrificed only the minority’s interests and not the

similarly situated interests of the majority. This Court has

repeatedly held that the majority must impose the same

burdens on its own interests as on those of the minority if

the majority wishes to avoid the suspicion of improper

purpose. E.g., Orr v. Orr, 440 U.S. 268, 280 n.10 (1979). As

Justice Jackson indicated in Railway Express Agency, Inc.

v. New York, 336 U.S. 106, 111 (1949), such a requirement

has the prophylactic effect of assuring indirect consideration

of minority interests.

Third, voluntary desegregation assignments under the

initiative would equally undercut the neighborhood school

purposes. The State protests the factual conclusion by the

District Court and the Court of Appeals that Initiative 350

would make it “impossible’’ to desegregate the public

schools. Yet, if sufficient voluntary desegregation were to

occur under Initiative 350 (a hypothetical that flies in the

face of experience and the evidence), just as many students

would be bused out of their neighborhoods as in the absence

of Initiative 350. Of course, those would be minority

students, disproportionately forced to sacrifice the benefits

of neighborhood schools to gain the benefits of desegregated

schools.

Moreover, the cost and risk of transportation in a

hypothetically effective voluntary program would be greater

than under mandatory desegregation.*' Student camaraderie

" Because riding a bus to school is statistically safer than walking, see

U.S. Commission on Civil Rights, Public Knowledge and Busing

— 17 (1973), the safety justification for opposition to busing has

ittle

force.

and parental cohesiveness and involvement would be less

than under mandatory desegregation, where groups of

students and parents are kept together over the years, and

where the composition of the student body is predictable

from year to year. Consequently, Initiative 350 achieves a

limited measure of the purposes of a neighborhood schools

policy only if one assumes that there would be an appreciable

decline in actual desegregation.

In sum, Initiative 350’s weak or non-existent relationship

to constitutionally acceptable goals must be seen to reflect

not just the purpose of mandating that children go to

neighborhood schools, but also the purpose of hindering

effective desegregation efforts that equitably burden all

races, as is confirmed by the evidence of subjective

motivation.

4. Subjective Motivation

The State’s only real challenge to the District Court's

sifting and weighing of the evidence of purpose is to suggest

that the court ‘‘categorically refused even to consider the

Defendants’ evidence of benign intent on the part of the

voting public... .’’ Brief of Appellants at 31. The State's

insinuation is both irrelevant and misleading.

Because discriminatory purpose will seldom be nakedly

declared, the trustworthiness of the denials of subjective

intent submitted by the State is slight, as this Court has

repeatedly indicated. E.g., United States v. O'Brien. 391 U.S.

367, 383 (1968); Fletcher v. Peck, 10 U.S. (6 Cranch) 87,

130-31 (1810). See generally Ely, Legislative And

Administrative Motivation in Constitutional Law, 79 Yale

L.J. 1205, 1218 (1970). As the Court stated in Feeney, ‘‘[pjroof

of discriminatory intent must necessarily usually rely on

objective factors, several of which were outlined in Arlington

Heights .... What a legislature or any official entity is ‘up

to’ may be plain from the results its actions achieve, or the

results they avoid.’’ 442 U.S. at 279 n.24.” That is especially

the case where the decision-maker is not just a multi-

membered body but an electorate numbering in the hundreds

of thousands.

Nonetheless, although the District Court properly relied

primarily upon ‘‘objective factors,’’ it explicitly denied the

school districts’ motion in limine to exclude evidence of the

subjective intent of the electorate. R. 429. Resultantly, the

record is replete with such evidence.** The District Court

made specific findings of fact relating to subjective

motivation, e.g., 473 F. Supp. at 1001, J.S. at A-8 (FF 3.7),

and the court emphasized that its decision was rendered only

“{alfter considering all of the evidence... .’’ Jd. at 1012, J.S.

at A-27.

* See also Flemming v. Nestor, 363 U.S. 603, 617 (1960) (Harlan, J.)

(“Judicial inquiry into Congressional motive is at best a hazardous matter,

and when that od seeks to go behind objective manifestations it

becomes a dubious affair indeed.”’); Arlington Heights, 429 U.S. at 270

n.20 (upholding exclusion of evidence of subjective motivation).

One reason evidence of subjective intent is untrustworthy is that

prejudice is often, if not usually, subconscious. G. Allport, The Nature

of Prejudice 11 (1954) (Since they merely follow the folkways they deny

that they are prejudiced"). Thus, stated intent might merely be a

rationalization for subconscious unease about having one’s child attend

a desegregated school, as expert witnesses in this case testified. See note

33 infra. This Court has recognized that it makes no difference whether

discrimination is ‘‘accomplished ingeniously or ingenuously ... .'’ Smith

v. Texas, 311 U.S, 128, 132 (1940). See generally Brest, The Supreme Court,

1975 Term—Foreward: In Defense of the Antidiscrimination Principle,

90 Harv. L. Rev. 1, 7-8, & 14 (1976).

" Dr. David Armor, defendants’ expert witness, testified that many white

rome oppose minority children being bused into a white school. J.A.

04-05. Dr. James Morishima, an expert witness on surveys of racial

attitudes, testified that racial bias is a factor in whites’ opposition to

busing. J.A. 104. Dr. Christine Rossell testified following her review of

relevant data that many of the expressed nonracial reasons for opposition

to desegregation busing are in fact conscious or subconscious

rationalizations of racial fears. J.A. 91-93. A CiVIC attorney acknowledged

the existence of racial discrimination as a factor in opposition to busing

J.A. 103-04. Even the CiVIC legislative co-chair testified that there are

people in Seattle who are afraid of the other race and do not want their

children to be in school with other races. J.A. 102. Sixteen percent of all

whites openly favor separation of the races; 27% would be disturbed at

having a black neighbor. Def. Ex. A-133, p. vi, Tr. 1346; J.A. 154-67.

5. Conclusion

The State contends that Initiative 350 must prevail unless

evidence of subjective motivation established that it would

not have been enacted ‘‘but for’’ segregative intent. Brief

at 27. As this Court has held, however, the objective evidence

of discriminatory purpose alone shifted the burden to the

State to prove that the initiative would have been proposed

and enacted even in the absence of a purpose to impede

effective desegregation. Arlington Heights, 429 U.S. at

270-71 n.21. That burden is necessary because, where

discriminatory purpose might well have motivated

legislation, judicial deference is ‘‘no longer justified’’ and

close scrutiny is essential. Jd. at 265-66. In that case, which

is this case, the presence of nondiscriminatory purposes

among some supporters is irrelevant, unless such purposes

constitute compelling state interests that could not be

otherwise satisfied. Here they do not, and the courts below

properly, albeit reluctantly, intercepted the possibility of

majoritarian abuse.”

C. Initiative 350 Deters Satisfaction of the

Affirmative Duty to Remedy Past Segregation

The District Court correctly recognized that Initiative 350

prohibits all non-neighborhood desegregation assignments,

except pursuant to court order, regardless of whether a

Washington school district has a constitutional duty to

desegregate. Under Initiative 350, only a court may eliminate

(cont.)

The testimony of the State's expert, Don Morgan, that the results of

certain polls ‘do not reflect a racial bias on the part of the respondents,"

was thoroughly refuted. The yop od fem do not permit a conclusion one

way or the other with respect to racial bias, as they were designed neither

to ascertain the existence of such a factor nor to control for the fact that

pocrse seldom admit to racial bias, even where they are conscious of being

iased. J.A. 154-67; see note 32 supra. Little if any credence was due the

defense expert's conclusion after — cross-examination and rebuttal

testimony. See Tr. 856-918 & 943-72 (testimony of Don Morgan); Tr.

1288-1345 & 1435-42 ce onmare of Dr. James Morishima, plaintiffs’

expert); Tr. 1351-71 (testimony of Dr. Douglas L. MacLachlan, plaintiffs’

expert); Pl. Ex. 128 (statement of Dr. Morishima).

“ That a statute with certain similarities in language to Initiative 350

— be upheld in the absence of similar = of sogregetive urpose

and effect, as was the case with the federal statute upheld in Brown v.

Califano, 627 F.2d 1221, 1230-31 & n.57 (D.C. Cir. 1980), is irrelevant to

a decision in this case. See also uote 35 infra.

the core, as well as the vestiges, of past purposeful

segregation, thus vitiating the ‘affirmative’ nature of the

local districts’ constitutional duty. Moreover, the initiative

similarly impedes the federal statutory duty and goal to

eliminate non-purposeful segregation.

1. The Affirmative Constitutional Duty

It is by now well established that local school districts have

an affirmative constitutional duty promptly ‘‘to eradicate

the effects’’ of past unlawful segregation.** Dayton Board

of Education v. Brinkman (II), 443 U.S. 526, 537 (1979).

‘(T]he measure of the post-Brown J conduct of a school board

under an unsatisfied duty to liquidate a dual system is the

effectiveness, not the purpose, of the actions in decreasing

or increasing the segregation caused by the dual system.”’

Id. at 538. Thus, the district is under ‘‘the obligation not

to take any action that would impede the process of

disestablishing the dual system and its effects.’’ Jd. (relying

upon Wright v. Council of Emporia, 407 U.S. 451 (1972), and

United States v. Scotland Neck City Board of Education,

407 U.S. 484 (1972)"). Specifically included within the

affirmative duty is a responsibility ‘“‘to see that pupil

assignment policies’’ ‘‘are not used and do not serve to

perpetuate or re-establish the dual school system.’’ Columbus

Board of Education v. Penick, 443 U.S. 449, 460 (1979).

* The duty applies to local districts, not to federal agencies or courts.

This analysis is therefore inapplicable to federal laws affecting only federal

instrumentalities. See note 34 supra. Moreover, the facial overbreadth

analysis, infra at 41-42, is doubly inapplicable to federal laws affecting

federal courts, since federal courts could hardly be deterred by a facially

overbroad law, and in fact have not been. E.z., ey uv. Kerrigan, 530

F. 2d 401, 412-13 (1st Cir.), cert. denied, 426 U.S. 935 (1976). Thus, it is

irrelevant that this analysis has not been applied to the various federal

statutes discussed by appellants. Whether those statutes are or are not

constitutional is neither directly nor effectively at issue here.

* Scotland Neck is instructive in that no court had found the district guilty

of unlawful segregation. After the district agreed to desegregate, the state

legislature passed a bill creating a new district. 407 U.S. at 486-87. This

Court struck down the legislation as likely to ‘‘impede the dismantling”

of the dual system. Thus, Scotland Neck stands directly for the proposition

that, whatever a state's authority under state law, it may do nothing to

interfere with a local district's determination and satisfaction of its own

constitutional duty. — I, 433 U.S. 406 (1977), is in no way

inconsistent, because in Dayton J the district had reconsidered its own

decision prior to implementation.

The imposition of this duty on local districts recognizes

not just their responsibility but also the vital national

tradition in local autonomy of school districts, Milliken v.

Bradley (I), 418 U.S. 717, 741-42 (1974), and the fact that

local authorities are in the best position for ‘elucidating,

assessing and solving these problems."’ Brown v. Board of

Education (II), 349 U.S. 294, 299 (1955).

2. Necessity of ‘‘Busing”

The courts below agreed that Seattle could not effectively

eliminate segregation with the techniques permitted under

Initiative 350. 473 F. Supp. at 1001-02, 1007 and 1010, J.S.

A-7, A-8 and A-23 to A-25 (FF 3.5, 3.6, 3.8, 6:14, 8.1, 8.5,

11.1, and 11.2); 633 F.2d at 1346 and n.9, J.S. at B-11.” This

Court's experience has led it to the same conclusion: ‘‘bus

transportation has long been an integral part of all public

educational systems, and it is unlikely that a truly effective

remedy could be devised without continued reliance upon it.”’

North Carolina State Board of Education v. Swann, 402 U.S.

43, 46 (1971); accord, Swann v. Charlotte-Mecklenburg Board

” “A seasoned and wise rule of this Court makes concurrent findings of

two courts below final here in the absence of very exceptional showing

. —.. Comstock v. Group of Institutional Investors, 335 U.S. 211,

4 (1948).

Contrary to the present suggestion of the United States, CiVIC's ‘‘open

enrollment” plan would not have been “effective” in obtaining ‘fully

integrated” schools. Brief at 6 & n.9; see id. at 25. This support for a

“freedom of choice" plan runs contrary to the position the United States

took earlier in this case and in over two decades of school desegregation

litigation. E.g., Memorandum for the United States as Amicus, Green

v. County School Board, 391 U.S. 430 (1968). That earlier position was

accepted by this Court in Green. Id. at 440-41.

The evidence at trial established beyond doubt the lower court's finding

that desegregation in Seattle would be impossible under the initiative.

See, e.g., J.A. 75, 89-91, 106, 123-30, 150-51, 193-96, & 202-03; Tr. 1414-15

(“Any plan consistent with Initiative 350 .. . would create the most

a student cope ... that the Seattle Public Schools has

ever known, both in the numbers of schools and in the percentage of

minority racial imbalance."’).

The State asserts that it controls student assignments and all other

aspects of education in Washington. In light of that, it is informative that

the State has failed to develop and adequately fund an effective volunt

desegregation program for state schools such as Seattle's. Instead, bot

the State and the United States have reduced funding for voluntary

programs and the excess cost of voluntary program busing.

of Education, 402 U.S. 1, 28-29 (1971)."* Consequently, this

‘*state-imposed limitation on a school authority's [student

assignment] discretion operates to inhibit or obstruct the

operation of a unitary school system or impede the

disestablishing of a dual school system,’’ and it must

therefore fall. North Carolina State Board, 402 U.S. at 45.

Initiative 350 does provide that it ‘‘shall not prevent any

court of competent jurisdiction from adjudicating

constitutional issues relating to public schools.’’ This

“recitation of the obvious” Tr. 1171-72, simply recognizes

the impossibility of prohibiting courts from ordering non-

neighborhood assignment of students where necessary to

remedy a constitutional violation; it is, in the drafter’s words,

“superfluous."’ Def. Ex. A-102, p.3. Yet, if past segregation

must remain unremedied pending court action, then there

is no affirmative duty on the part of the local school districts

at all. If the affirmative nature of that duty means anything,

it means that a local district may not, and must not, await

a court order to desegregate.”’ It is precisely for that reason

that the courts uniformly applaud efforts of local districts

to desegregate without a contested court order. E.g.,

Armstrong v. Board of School Directors, 616 F.2d 305, 312-13

(7th Cir. 1980); United States v. Board of Education, 88

F.R.D. 679, 681-82 (N.D. Ill. 1980).

” Despite widespread unhappiness with mandatory busing, and despite

the Congressional directive to consider other alternatives first, 20 U.S.C.

§ 1713-14 (1976), no alternative or combination of alternatives has been

ound sufficiently effective to eliminate the need for a mandatory student

assignment component in numerous plans a by the lower federal

courts. Indeed, even decisions involving only the question of liability, and

not remedy, are usually viewed by the public, the press, and even the

parties as “busing’’ decisions, because it is well sconguined that mandatory

student assignments are essential to effective desegregation. E.g., Dayton

II, supra; Columbus, supra.

” California's Proposition 1, the subject of Crawford v. Board of

Education, No. 81-38, expressly authorizes local school s to continue

or commence integration plans, including student assignments and

transportation, regardless whether regueee to satisfy a court order.

Federal law expressly authorizes local districts voluntarily to adopt

desegregation plans that include busing. 20 U.S.C. § 1716 (1976).

3. The “Saving"’ Construction of Initiative 350

Implicitly admitting the force of the above argument, the

Washington Attorney General seems to posit a construction

of Initiative 350 that would allow a school district to act in

the absence of a court order if it correctly perceives that it

is under a duty to act and if it has exhausted all means of

desegregation short of non-neighborhood assignments. This

admitted attempt to rewrite the initiative to avoid

unconstitutionality fails for a number of reasons.

First, this executive amendment is contrary to the

initiative’s plain language and purpose. Initiative 350

prohibits all non-neighborhood assignments other than those

falling within its exceptions. The exception in question

applies only to a court's duty to enforce the Constitution,

not a local school district's duty to do so, and the State can

point to no legislative history supporting its interpretation.”

The courts below rejected the State's construction, and were

“ The State purports to find some support, but the testimony cited, Brief

at 39 n.8, instead indicates that CiVIC planned to sue to enjoin any school

district that did not immediately comply with the initiative—regardless

of whether the district perceived a constitutional duty requiring non-

neighborhood assignments. In particular, CiVIC planned to sue to enjoin

the Seattle Plan, even though the State apparently believes that Seattle

had recognized a legal duty to desegregate. Brief at 41. Any construction

of the initiative that would preserve the Seattle Plan is hardly consistent

with its undisputed ng se to do nothing if not end the Seattle Plan.

Within weeks of the Court of aed decision, House Bill 711 was

introduced in the Washington State Legislature to terminate state funding

of mandatory desegregation transportation. The bill was similar to

Initiative 350 in that the funding termination was indirect, accomplished

by reimbursement for transportation to the nearest or next-nearest school,

with several exceptions. The Legislature rejected an amendment that

would have continued traditional state funding of student transportation

where an affirmative constitutional duty to desegregate existed. The

refusal of the Legislature to incorporate the Attorney General's

interpretation of Initiative 350 into the subsequent statute drafted by

the same attorneys litigating this case for the State speaks volumes about

that interpretation.

The bill was enacted into law, Ch. 343, 1981 Wash. Laws, but was

permanently enjoined in an action filed by most of the same plaintiffs

as in the present case. Seattle School District No. 1. v. Washington, No.

C81-27€T (W.D. Wash. Dec. 18, 1981) (findings, conclusions, and opinion).

The rejected amendment was one reason for the district court's rulin

- _ funding version of Initiative 350 was also unconstitutional. Jd.

at ,

in a better position than this Court to determine its validity

under state law principles. See note 30 supra.

Although legislation must be construed where possible to

accord with the Constitution, ‘‘this does not imply, if the text

of an act is unambiguous, that it may be rewritten to

accomplish that purpose.’’ Howard v. Illinois Central R.R.,

207 U.S. 463, 501 (1908). Accordingly, in Lee and North

Carolina State Board this Court affirmed the district courts’

refusal to accept similar ‘‘saving’’ constructions ‘‘too

tortuous to warrant serious consideration.” Lee, 318 F. Supp.

at 715-16; accord, North Carolina State Board, 312 F. Supp.

503, 507 (W.D.N.C. 1970).

Additionally, the intimation that the Washington Attorney

General has construed the statute so as to recognize the

affirmative constitutional duty is inaccurate. The Attorney

General refused to provide an opinion construing the statute,

preferring instead to await the outcome of this litigation

before determining how broad a formal opinion to give. Def.

Ex. A-89, Tr. 589. There is no objective and authoritative

opinion of the Attorney General—only litigative posturing.

Even if the purported construction had come through a

formal opinion by the Attorney General, state courts would

accord it only as much deference as its logic demands.“' Thus,

the State's present interpretation of Initiative 350 could be

upset by any interested party, including the State itself.’

E.g., Kasper v. Edmonds, 69 Wash. 2d 799, 805, 420 P.2d 346, 350 (1966)

(Attorney General's opinion will be ignored where contrary to ‘‘reason,

hogeeeive history, or other rules of statutory construction’).

he United States cites Lynch v. Overholser, 369 U.S. 705, 710-11 (1962),

as somehow standing for the proposition that “‘[aJbsent a state court

interpretation, the Washington Attorney General's interpretation clearl

prevails over that of the district court.’ Brief at 26 n.28. But in Lync

this Court rejected the Government's statutory interpretation that was

“buttressed” by an analogous local court decision.

“ Cf. Washington v. Washington State Commercial Passenger Fishing

Vessel Association, 443 U.S. 658, 693-95 (1979). The United States was

not nearly so sanguine about the Washington Attorney General's

representations in the Salmon Case. See Brief for the United States at

78, Washington v. Washington State Commercial Passenger Fishing

Vessel Association, supra.

Although school board members would be protected from

personal liability if they had formal advice of the Attorney

General as to the meaning of Initiative 350 and if they were

correct as to the need for desegregation, that would not

validate their actions if a court should interpret Initiative

350 or the need for desegregation differently. State ex rel.

Day v. Martin, 64 Wash. 2d 511, 392 P.2d 435 (1964). A state

court injunction ending desegregation assignments in mid-

year would wreak havoc on the districts and the educational

program. The mere threat of such injury and disruption

would deter a district from acting.

Nor would the Attorney General's representation free

board members from personal concern with violating the

plain language of a state statute. As the Court of Appeals

noted, enforcement of Initiative 350 is not entrusted only

to the Attorney General or to private persons; it is a civil

statute imposing its own ‘‘affirmative duty to comply."’ 633

F.2d at 1342 n.1, J.S. at B-4.

Most important, even under the State’s expedient

construction, a local school board would be protected only

if it could prove to a court that it had previously engaged

in purposeful segregation with a current significant effect.

Only on this question, racial desegregation of the schools,

must a local board justify its actions relating to student

assignment in court by a preponderance of the evidence.

Thus, appellants’ ‘‘saving’’ construction is subject to the

same suspect classification as the law they now attempt to

rewrite. Further, the State contends that the reviewing court

would be engaged in the ‘‘difficult proposition” of applying

“elusive concepts’’ in determining whether unlawful

segregation exists. Brief of Appellants at 41. Thus, even a

school board willing to confess its past guilt, in spite of the

open-ended ramifications of such a confession, could not be

sure of being upheld in court.

4. Initiative 350 Is Facially Overbroad

Regardless of the Attorney General's desire to rewrite the

plain language, the statute on its face prohibits conduct not

just protected but required by the Constitution—ie.,

satisfaction of the affirmative duty to desegregate by a local

school district absent court order. Baggett v. Bullitt, 377 U.S.

360, 373-74 (1964) (declaring statute unconstitutional on its

face despite narrowing construction suggested by

Washington Attorney General); see Gooding v. Wilson, 405

U.S. 518, 524 (1972). There should be no less concern with

the effect of a facially overbroad law on satisfaction of the

constitutional duty to desegregate than on exercise of the

constitutional right to free speech. For that very reason, the

present school districts have standing to assert the effect

of the initiative both on themselves and on other districts

that might have followed their example in desegregating

through all necessary means but who might be deterred by

Initiative 350 from doing so. Schad v. Borough of Mount

Ephraim, 452 U.S. 61 (1981).

In North Carolina State Board, this Court unanimously

declared the relevant provision of an antibusing statute to

be unconstitutional on its face—not just in its application

to particular districts undergoing court-ordered

desegregation. See 312 F. Supp. at 510. The Court found that

the statute's ‘‘apparently neutral form’’ would deprive

“school authorities of the one tool absolutely essential to

fulfillment of their constitutional obligation to eliminate

existing dual school systems."’ 402 U.S. at 45-46. Because

“all reasonable methods’’ must be available, and because “‘it

is unlikely that a truly effective remedy could be devised

without continued reliance’’ on bus transportation, the

antibusing statute ‘“‘must inevitably conflict with the duty

of school authorities to disestablish dual school systems.”

Id. at 46. The Court so held even though not all the state's

schools were under court order and the district court had

found that busing would not invariably be necessary to an

effective remedy. 312 F. Supp. at 510.

The scope of the order upheld in North Carolina State

Board indicates that the decision was not limited to school

districts that had been judicially declared guilty of

unconstitutional segregation which could be remedied only

with non-neighborhood assignments. That understanding is

confirmed by McDaniel v. Barresi, 402 U.S. 39 (1971), also

decided unanimously the same day. In McDaniel, a state

court had enjoined race-conscious student assignments in

a non-court-ordered desegregation plan. This Court

overturned that decision on the ground that satisfaction of

the affirmative duty to disestablish unlawful segregation

‘will almost invariably require that students be assigned

‘differently because of their race.’ Jd. at 41.

5. Initiative 350 is Preempted by Federal Legislation

Even if the State is correct that there is no possibility of

unconstitutional segregation in Washington schools, many

schools would nonetheless be segregated in fact under

Initiative 350. The initiative is therefore preempted by

federal statutes that prohibit school segregation, regardless

of cause, and that have the purpose of reducing such

segregation.“

Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d

(1976), bans racial discrimination in programs receiving

federal financial assistance. In Lau v. Nichols, 414 U.S. 563,

568 (1974), this Court interpreted Title VI as prohibiting

discriminatory effect ‘‘even though no purposeful design is

present."’ Although Title VI was interpreted as going no

farther than the Constitution with respect +. purposeful

conduct benefiting minorities in Regents of the University

” Although this rationale was not relied upon in the Court of Appeals,

the cause of action was stated in appellees’ complaint, and “the prevailing

party mer. of course, assert in a reviewing court any ground in support

of his ju ent, whether or not that ground was relied upon or even

eensidaved by the trial court.’’ Dandridge v. Williams, 397 U.S. 471, 475

n.6 (1970). See also New York City Transit Authority v. Beazer, 440 U.S.

568, 582 (1979).

of California v. Bakke, 438 U.S. 265 (1978), a plurality of the

Court in Fullilove v. Klutznick, 448 U.S. 448, 479 (1980),

described Lau approvingly as not requiring purpose.

Moreover, interpreting Title VI as applying to disparate

impact is consistent with Title VII of the same act. NAACP

v. Medical Center, Inc., 657 F.2d 1322, 1330-31 (3d Cir. 1981)

(en banc).

Regardless of the proper interpretation of Title VI as a

general matter, its interpretation as to public school

segregation has been determined by Congress. The

Emergency School Aid Act specifies that Title VI ‘‘shall be

applied uniformly in all regions of the United States in

dealing with conditions of segregation by race whether de

jure or de facto in the schools of the local educational agencies

of any State without regard to the origin or cause of such

segregation."’ 20 U.S.C. § 3193(b) (Supp. III 1979).

This language is that of the version of the Stennis

amendment analyzed by this Court in Board of Education

v. Harris, 444 U.S. 130 (1979), as not requiring purpose. A

different version of the Stennis amendment appears as part

of Title VI, 42 U.S.C. § 2000d-6 (1976), and seems to preserve

whatever distinction there might be between purposeful and

nonpurposeful discrimination under Title VI. 444 U.S. at 146

n.10 and 150 n.13. But the language applying Title VI

specifically to schools expressly leaves off the second half

of that version and thus, with respect to school segregation,

eliminates whatever distinction there might otherwise be.

That is consistent with the regulations administering Title

VI with respect to schools; those regulations do not require

a showing of purpose. 34 C.F.R. § 100.3(b)(1)(iii) and (b)(2)

(1981). See generally Abernathy, Title VI and the

Constitution: A Regulatory Model for Defining

“Discrimination,"’ 70 Geo. L.J. 1 (1981).

Because mandatory student assignments were found in the

circumstances here to be essential to desegregation,

Initiative 350 violates and is preempted by Title VI. 42

U.S.C. § 2000h-4 (1976); see Washington v. Washington State

Commercial Passenger Fishing Vessel Association, 443 U.S.

658, 695 (1979).

Moreover, Congress has separately stated its purpose to

“encourage the voluntary elimination, reduction, or

prevention of minority group isolation in elementary and

secondary schools with substantial proportions of minority

group students.” 20 U.S.C. § 3192(b)(2) (Supp. III 1979). As

this Court put it, the statute ‘indisputably demonstrates

that Congress was disturbed about minority segregation and

isolation as such, de facto as well as de jure... ." Harris,

444 U.S. at 141. By flatly prohibiting the voluntary action

the statute seeks to encourage, Initiative 350 ‘‘stands as an

obstacle to the accomplishment and execution of the full

purposes and objectives of Congress." Hines v. Davidowitz,

312 U.S. 52, 67-68 (1941).

6. Conclusion

The involvement of this Court and the lower federal courts

in desegregating this nation’s schools has been necessary but

troubled. Court intervention increases resentment, decreases

flexibility and community involvement, and both results

from and contributes to delay. Seattle, Tacoma, and Pasco

developed solutions that promised realistically to work, and

to work now. If they cannot act absent court order, or if it

is only uncertain whether they can act absent court order,

there will be no action until the court takes control. The

affirmative duty will be a nullity, and Washington school

districts will rejoin those districts across the country that

have abdicated responsibility to the courts on this vital

national issue.

D. The Court of Appeals Correctly Found the Successful

School District Plaintiffs Entitled to Their Costs

and Attorney’s Fees

The Court of Appeals properly reversed the District

Court’s denial of the school district plaintiffs’ costs and

attorney's fees.‘ As the Court of Appeals recognized,

Congress intended the applicable attorney's fees statutes to

authorize the award of attorney's fees to publicly as well as

privately funded plaintiffs, without regard to the ability of

the State to pay. This is shown by the express language of

the statutes and their purpose and legislative history.”

1. Statutory Bases for Award of Attorney's Fees

The two statutes authorizing an award of fees here are 20

U.S.C. § 3205 (Supp. III 1979), a section of the Emergency

School Aid Act, and 42 U.S.C. § 1988 (1976), the Civil Rights

Attorney’s Fees Awards Act of 1976. Section 3205

provides:

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

thereof), for failure to comply with any provision of this

chapter 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, ve f ow the

prevailing party, other than the United States, a

reasonable attorney's fee as part of the costs.

Section 1988 is phrased similarly, but applies to violations

of 42 U.S.C. § 1983 (1976), and other provisions.

The school district plaintiffs met all express requirements

for the award of fees under these statutes. The District Court

entered a final order against the State for violation of the

“* The Court lacks appellate jurisdiction over this issue, since it does not

involve the constitutionality of a state statute. 12 Moore's Federal Practice

€ 435.01[2] (1981). Nor does this issue satisfy the considerations governing

review on certiorari. Rule 17.1.

* In the courts below, the United States supported the school district

plaintiffs’ right to an award of fees.

“ Section 3205 was codified at 20 U.S.C. §1617 prior to reenactment in

identical form, effective October 1, 1979, as part of the Education

Amendments of 1978, Pub. L. No. 95-561.

Fourteenth Amendment and § 1983. A violation of the

Fourteenth Amendment is necessarily also a violation of Title

VI. These proceedings were necessary to bring about

compliance with federal law. Finally, the school district

plaintiffs are prevailing parties other than the United States.

2. An Award of Fees Serves the Congressional Purposes

No significant differences divide the language, purposes,

or application of § 3205 and § 1988. As this Court has noted,

the similarity of language between the provisions authorizing

the award of attorney's fees under the Emergency School

Aid Act and the Civil Rights Act of 1964 “‘is, of course, a

strong indication that the two statutes shouid be interpreted

pari passu.”’ Northcross v. Board of Education, 412 U.S. 427,

428 (1973). As was true of the provisions construed by this

Court in Northcross, § 3205 and § 1988 share ‘‘a common

raison d'etre."’ 412 U.S. at 428. The enactment of both

provisions was for the same purpose: to encourage

enforcement of the law in these areas and to deter violations

of such law. See id.; Carey v. Piphus, 435 U.S. 247, 258 n.11

(1978). Thus, in enacting the Civil Rights Attorney's Fees

Awards Act of 1976, Congress intended that § 1988 be given

the same liberal construction that had been accorded the

predecessor of § 3205. S. Rep. No. 94-1011, at 3 (1976).

In particular, Congress commanded that courts applying

§ 1988 adhere to the rule established by this Court in

Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402

(1968), that the prevailing party “should ordinarily recover

an attorney’s fee unless special circumstances would render

such an award unjust." S. Rep. 94-1011, at 4 (1976); H.R.

Rep. No. 94-1558, at 6 (1976). At the time § 1988 was drafted,

this Court had applied that standard to § 3205. Northcross,

supra, 412 U.S. at 428. It has since been held applicable to

§ 1988. See New York Gaslight Club, Inc. v. Carey, 447 U.S.

54, 63 (1980).

Thus, although the statutes entrust the amount of the fee

award to the discretion of the district court, ‘‘the trial court's

discretion is narrow.’’ Dawson v. Pastrick, 600 F.2d 70, 79

(7th Cir. 1979), cert. denied, 450 U.S. 919 (1981). Absent

special circumstances rendering an award unjust, there is

no discretion to deny totally an award. Jd. Such discretion

‘‘{njot to award counsel fees in cases such as this would be

tantamount to repealing the Act itself by frustrating its basic

purpose.”’ S. Rep. No. 94-1011, at 3 (1976) (quoting from Hall

v. Cole, 412 U.S. 1 (1973)).

3. No Special Circumstances Exist Here

Nothing inherent in the mere circumstance that the legal

services rendered here were publicly funded makes an award

of attorney’s fees unjust. The courts have held with

substantial uniformity that government funding of plaintiffs’

legal services is “irrelevant to the computation of attorney's

fees.’’ Donaldson v. O'Connor, 454 F. Supp. 311, 313 (N.D.

Fla. 1978); accord, Lund v. Affleck, 587 F.2d 75 (1st Cir.

1978); Mid-Hudson Legal Services, Inc. v. G & U, Inc., 578

F.2d 34 (2d Cir. 1978); Rodriguez v. Taylor, 569 F.2d 1231

(3d Cir. 1977), cert. denied, 436 U.S. 913 (1978); Tillman v.

Wheaton-Haven Recreation Ass'n, 517 F.2d 1141 (4th Cir.

1975); Incarcerated Men of Allen County Jail v. Fair, 507

F.2d 281 (6th Cir. 1974); Dennis v. Chang, 611 F.2d 1302 (9th

Cir. 1980); Regalado v. Johnson, 79 F.R.D. 447 (N.D. IIL.

1978).

The school district plaintiffs requested the State of

Washington to fulfill its duty to challenge or otherwise

remove the constitutional infirmities of Initiative 350. Had

the State responded, it would not now be liable for the school

district plaintiffs’ attorney's fees. Because the State did not

respond, the school district plaintiffs were faced with a choice

between complying with a statute they believed

unconstitutional, in violation of constitutional duty and the

board members’ oaths of office, or vigorously challenging

the statute, but only by temporarily diverting public funds

(only a portion of which comes from the State) from direct

education. The boards’ choice to protect students’

constitutional rights must not be considered a ‘‘special

circumstance.”

Had the school districts chosen to ignore their duty to

comply with the Constitution, they would have been made

defendants and would now share the State's liability for the

attorney's fees and costs of the other plaintiffs. Without the

legitimate expectation that a successful challenge of

Initiative 350 would entitle them to their costs incurred in

that challenge, these plaintiffs might have been reluctant to

vindicate rights that Congress has deemed of ‘‘the highest

priority.’’ Moreover, even if a fee award were not necessary

to encourage these plaintiffs to vindicate federal rights,

“assessing fees against defendants in all circumstances may

deter wrongdoing in the first place.’’ Dennis v. Chang, 611

F.2d at 1306 n.12; accord, Carey v. Piphus, supra.

If Congress had intended school districts funded in part

by states to divert their funds from education, it could have

easily so stated, just as it did with respect to the United

States as plaintiff. The State is asking this Court to write

an exception into the plain language of the statutes based

not on any policy reflected in the statutes themselves but

on a countervailing policy of the State's ‘‘fiscal crisis.”’ In

effect, the State is asking the Court to put a price on civil

rights, and weigh that price against the State’s interest in

the integrity of its treasury.‘’ Congress was well aware of

the limits of state resources when it enacted these statutes,

yet no such exception was provided. S. Rep. No. 94-1011,

at 5 (1976).

The State’s assertion that limited state budgets might

outweigh Congress’ policies of deterring constitutional

violations and encouraging vindication of constitutional

rights is a questionable proposition. More important, it is

up to Congress, not this Court, to balance the competing

considerations advanced here by the State. Current efforts

by the State and others to convince Congress to amend these

*" Instead, the possibility of fee awards should provide the State with an

incentive to avoid unconstitutional action during fiscal crises.

“ The State's suggestion that Congress exceeded its authority in this

determination is refuted by Hutto v. Finney, 437 U.S. 678 (1978).

statutes to preclude fee awards to publicly funded entities,

efforts that have specifically pointed to the result in this case,

have so far been unsuccessful. This Court should reject

appellants’ plea that it do what Congress has refused to do:

amend the statutes. See Maher v. Gagne, 448 U.S. 122, 129

(1980) (refusing to depart from plain language of § 1988).

4. An Award is Due Other Plaintiffs

Even if the districts themselves were not entitled to an

award of fees, the individual plaintiffs who brought this suit

with them would be. The fact that the individual plaintiffs

did not fund this litigation does not extinguish their right

to attorney's fees. Antitrust and civil rights plaintiffs

routinely obtain court awarded fees even though they had

not expended any sums. In Brandenburger v. Thompson, 474

F.2d 885, 889 (9th Cir. 1974), the Ninth Circuit stated:

he fact that the plaintiff was not obligated to pay the

ACLU for its services is not a bar to an award of

attorneys’ fees. All that is required is the existence of

an attorney-client relationship . . . Of course, the award

should be made directly to the organization providing

the services to ensure against a windfall to the litigant.

Accord, H.R. Rep. No. 94-1558, at 8 n.16 (1976) (‘a prevailing

party is entitled to counsel fees even if represented by an

organization’’).

CONCLUSION

The judgment of the Court of Appeals should be affirmed.

Initiative 350 is unconstitutional, and the school district

plaintiffs are entitled to their attorney's fees and other

reasonable expenses.

DATED this 25th day of January 1982.

Respectfully submitted,

MICHAEL W. HOGE*

General Counsel

Seattle School District No. 1

CAMDEN M. HALL, P.S.*

G. RICHARD HILL

Foster, Pepper & Riviera

Special Counsel for all School

District Plaintiffs

DAVID J. BURMAN

Perkins, Coie, Stone,

Olsen & Williams

Special Counsel for Seattle

School District No. 1

*Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.