Petitioners Reply Brief — Crawford v. Board of Ed. of Los Angeles

Office - Supreme Court, U.S.

No. 81-38. FILED

In the MAR 15 1982

Supreme Court of the United. States. ;,...

CLERK

Ocroser Term, 1981

MARY ELLEN CRAWFORD,

A MINOR, ETC., ET AL.,

PETITIONERS,

vs

BOARD OF EDUCATION OF THE

CITY OF LOS ANGELES, er. At.,

RESPONDENTS.

ON WRIT OF CERTIORARI TO THE

CALIFORNIA COURT OF APPEAL

SECOND APPELLATE DISTRICT

PETITIONERS’ REPLY BRIEF

Laurence H. Trise

1525 Massachusetts Avenue

Cambridge, Massachusetts 02138

(617) 495-4621

ANTONIO Ropricuez Frep OKRAND

Los Angeles Center for Counsel of Record

Law & Justice Mark D. Fosensaum

2111% Brooklyn Avenue Mary Even GALE

Los Angeles, California 90033 ACLU Foundation of

(213) 266-2690 Southern California

633 South Shatto Place

Los Angeles, California 90005

(213) 487-1720

Josern H. Durr Bruce J. Ennis

4401 S. Crenshaw Blvd. E. Ricnarp Larson

Los Angeles, California 90043 American Civil Liberties

(213) 299-9107 Union Foundation

132 West 43rd Street

New York, New York 10036

(212) 944-9800

Counsel for Petitioners

(Cont'd on inside cover)

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS

(Cont'd from cover)

Of Counsel:

Pau. HorrMan

Doucias Mireti

1 Wilshire Building

Los Angeles, California 90017

(213) 629-0486

Table of Contents.

Introduction

I. Because Proposition 1 is “undeniably a classification

based on race,” it must fall absent a compelling

justification which precisely fits that classification

A. Distorting the actual reach of Proposition 1 to

conceal its race-specific scope

B. Misstating the relation between Proposition 1

and pre-existing California law to paint the

Amendment's racial classification as a mere

corollary of repealing the prior law

C. Denying that obstacles to racial desegregation

as such constitute racial classifications at all

II. The need for compelling justification is doubly

clear because Proposition 1 splits the State’s Judi-

cial System into two parts: one court system for

minorities and their rights to desegregation, an-

other for everyone else

III. Proposition 1 is not compellingly justified

A. The quid pro quo justification: giving minori-

ties Fourteenth Amendment protection “plus”

B. The “what-you-lost-wasn’t-worth-having” jus-

tification: questioning the need for, and effi-

cacy of, court-ordered busing

C. The “neighborhood schools” justification

IV. The court below impermissibly bypassed the

inquiry mandated by Arlington Heights

Conclusion

13

16

19

ii

Table of Authorities Cited.

CASES.

Amador Valley Joint Union High School District v.

State Board of Equalization, 22 Cal. 3d 208 (1978) 4n

Anderson v. Martin, 375 U.S. 399 (1964) 2n, 8

Arlington Heights v. Metropolitan Housing Develop-

ment Corp., 429 U.S. 252 (1977) 2n, 16,17, 19

Bell v. Maryland, 378 U.S. 226 (1964) 10n

Brinkman v. Gilligan, 503 F.2d 684 (6th Cir. 1974) 7

Brown v. Board of Education, 347 U.S. 483 (1954) 8, 18, 18n

Brown v. Califano, 627 F.2d 1221 (D.C. Cir. 1980) 2n, 16, 17

Civil Rights Cases, 109 U.S. 3 (1883) 9n, 10n

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

(1979) 14, 16n

Crawford I, 17 Cal. 3d 280 (1976) 6, 10, 14, 18n

Crawford II, 113 Cal. App. 3d 633(1981) 16, 17n

Dayton Board of Education v. Brinkman (Dayton I),

433 U.S. 406 (1977) 6,7

Evans v. Buchanan, 393 F.Supp. 428 (D.Del. 1975),

aff'd 423 U.S. 963 (1975) 8

Fullilove v. Klutznick, 448 U.S. 448 (1980) 3n, 14

Goss v. Board of Education, 373 U.S. 638 (1963) 8

Hills v. Gautreaux, 425 U.S. 282 (1976) 12n

Hunter v. Erickson, 393 U.S. 385 (1969) 6,7,8

Ingraham v. Wright, 430 U.S. 651 (1977) 10n

Jackson v. Pasadena City School District, 59 Cal. 2d

876 (1963) 6

Laverne v. Zimmerman, 50 U.S.L. Week 4247 (U.S.

Feb. 24, 1982) 9n, 10

TABLE OF AUTHORITIES CITED.

Lee v. Nyquist, 402 U.S. 935 (1972), aff’g 318 F.Supp.

710 (W.D.N.Y. 1970)

Lindsey v. Normet, 405 U.S. 56 (1972)

Loving v. Virginia, 388 U.S. 1 (1964)

Lucas v. Forty-Fourth Gen. Assembly of Colorado,

377 U.S. 713 (1964)

Michael M. v. Superior Court, 450 U.S. 464 (1981)

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

Mobile v. Bolden, 446 U.S. 55 (1980)

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

43 (1971)

Norwood v. Harrison, 413 U.S. 455 (1973)

O’Shea v. Littleton, 414 U.S. 488 (1974)

Parratt v. Taylor, 451 U.S. 527 (1981)

Paul v. Davis, 424 U.S. 693 (1976)

Personnel Administrator of Massachusetts v. Feeney,

442 U.S. 256 (1979)

Plessy v. Ferguson, 163 U.S. 537 (1896)

Regan v. Wright, No. 81-970

Reitman v. Mulkey, 387 U.S. 369 (1967)

Rizzo v. Goode, 423 U.S. 362 (1976)

St. Joseph Stock Yards Co. v. United States, 298 U.S.

38 (1936)

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

(1973)

Seattle, No. 81-9

Serrano v. Priest, 5 Cal. 3d 584 (1971)

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

iii

iv TABLE OF AUTHORITIES CITED.

Tancil v. Woolls, 379 U.S. 19 (1964) (per curiam),

aff’g 230 F.Supp. 156 (E.D. Va. 1964) 2n

Tingsley v. Palo Alto Unified School District, 91 Cal.

App. 3d 871 (1979), pet. for hearing den., June 7,

1979 6, 12n

University of California Regents v. Bakke, 438 U.S. 265

(1978) In, 2n, 15n, 16

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) 16n

West Virginia Bd. of Educ. v. Barnette, 319 U.S. 625

(1943) 16n

White v. Davis, 13 Cal. 3d 757 (1975) 12n

Younger v. Harris, 401 U.S. 37 (1971) 10n

STATUTES.

United States Constitution 5n

Article I, § 7(a) (2) 11

Article III 1]

Fourteenth Amendment 3, 5, 5n, 6n, 7, et seq.

§ 1 (Equal Protection Clause) 8

California Constitution 4, 5n

United States Supreme Court Rule 35.3 l

MISCELLANEOUS.

Bator, “The State Courts and Federal Constitutional

Litigation,” 22 Wm. & M. L. Rev. 605 (1981) 9n

C. Fairman, Reconstruction and Revision, PartI (1971) = 9n

TABLE OF AUTHORITIES CITED.

Hart, “The Power of Congress to Limit the Jurisdiction

of Federal Courts: An Exercise in Dialectic,” 66

Harv. L. Rev. 1362 (1953)

O'Connor, “Trends in the Relationship Between the

Federal and State Courts From the Perspective of a

State Court Judge,” 22 Wm. & M. L.Rev. 801 (1981)

Sager, “Fair Measure: The Legal Status of Judicially

Underenforced Constitutional Norms,” 91 Harv. L.

Rev. 1212 (1978)

Sears, Lau, Tyler & Allen, “Self-Interest versus Sym-

bolic Politics in Policy Attitudes & Presidential Vot-

ing,” 74 Pol. Sci. Rev. 670 (1980)

9n

10n

lln

18n

1

Introduction.

Pursuant to Rule 35.3 of the Rules of this Court, petitioners

Crawford et al., file this brief in reply to the Brief of Respond-

ent Board of Education of the City of Los Angeles (“Res. Br.”’)

and the Brief of Respondent Bustop. This reply brief is being

filed within one week of March 22, 1982, the scheduled date of

oral argument in this case.

With the filing of the briefs in defense of Proposition 1, it has

become clear that, lacking justifications that could survive strict

scrutiny, respondents and their supporters seek to obscure the

racial character of the line Proposition 1 draws and of the results

it designedly causes. This Court should reject that attempt.

I. Because Proposition | 1s “UNDENIABLY A CLASSIFICATION

BAsep ON Race,”!' rr Must Fats. ABSENT A COMPELLING

JUSTIFICATION WHICH PRECISELY Fits THAT CLASSIFICATION.

Neither of the respondents nor any of the amici filing briefs

on their behalf offers anything resembling a compelling

justification for the precise line drawn by Proposition 1. Yet

that line is unmistakably race-specific, in several respects:

under Proposition 1, only the goal of desegregating minority

schools must be pursued without state judicial assistance in ob-

taining whatever pupil assignment or transportation may be

needed to vindicate state constitutional rights; only racial

minorities must prove two constitutional violations (both state

and federal) to overcome the barrier created by Proposition 1

to the judicial ordering of potentially indispensable relief; and

only integration decrees remain continually subject to

challenge by “any interested person.” See Pet. Br. at 42-48.

Unless Proposition 1’s defenders can somehow show that,

despite these race-specific features, “the classification on its face

is racially neutral” after all, petitioners need not “establish an

University of California Regents v. Bakke, 438 U.S. 265, 289 (1978)

(Powell, J., announcing judgment).

2

intent to discriminate” before triggering the demand for com-

pelling justification:? with exceptions not relevant here,

“{rjacial and ethnic distinctions of any sort are inherently

suspect and thus call for the most exacting judicial examina-

tion.”* For this reason, the board and its supporters labor

mightily to recast Proposition | as a facially neutral measure.

Petitioners address their several attempts in turn.

2 Id. n.27, contrasting Arlington Heights v. Metropolitan Housing Devel-

opment Corp., 429 U.S. 252, 264-265 (1977).

9 Bakke, 438 U.S. at 291 (Powell, J.) (emphasis added); see also id. at 294

n.34,. Accord, Personne! Administrator of Massachusetts v. Feeney, 442 U.S.

256, 272 (1979) (“racial classification[s], regardless of purported motivation,

[are] presumptively invalid and can be upheld only upon an extraordinary

justification”). This proposition holds even with respect to classifications

that operate within government's own processes, purport to be neutral, im-

pose no direct burden on anyone's liberty, and apply to all races. See, e.g.,

Anderson v. Martin, 375 U.S. 399 (1964) (voiding state requirement that

race of every candidate be designated on nominating papers and ballots).

Reduced scrutiny may, of course, be proper when the racial classification in

question affects only an innocuous aspect of bureaucratic structure or record-

keeping, as in Tancil v. Woolls, 379 U.S. 19 (1964) (per curiam), aff'g 230

F.Supp. 156 (E.D. Va. 1964) (upholding requirement that race of parties be

recorded on divorce decrees). Tancil seems the strongest available support for

Brown v. Califano, 627 F.2d 1221 (D.C. Cir. 1980), which upheld a change in

the mechanisms available to the Department of Health, Education and

Welfare (HEW) and the Department of Justice (DOJ), collectively, to assure

that no federal funds go to segregated school districts. Prior to the change.

HEW could condition continued funding on a district's adoption of a transpor-

tation remedy — subject to later judicial review of HEW’s conclusion that

desegregation required such a remedy. After the change, HEW still had an en-

forceable “obligation to assure no federal moneys support segregated schools,”

id. at 1236, and could still “initiate its administrative proceedings if busing

[was] only one of multiple possible remedies for a noncomplying district,” id.

n.89, but would have to refer the matter to DOJ for immediate litigation if the

district was one in which HEW believed only a transportation remedy would

suffice. Id. at 1231-1233, 1235-1236. Thus, as the Government explained the

narrow change at issue in Brown, it “merely replace{d] eventual judicial

review of HEW action with initial resort to the courts for districts which HEW

believes need a transportation remedy.” Jd. at 1236 n.89.

It has also been argued that “racial classifications designed to further re-

medial purposes” need only survive a form of scrutiny which, while beyond the

minimal, is less than strict. Bakke, 438 U.S. at 358-359 (opinion of Brennan,

White, Marshall, and Blackmun, JJ., concurring in judgment in part and

3

A. Distorting the Actual Reach of Proposition 1

To Conceal its Race-Specific Scope.

Making an argument never before advanced by anyone in

this litigation, the board boldly states: “The classification that

Proposition 1 makes among remedies is by no means racial. It

plainly prohibits a state court from ordering any busing that is

not required to remedy a Fourteenth Amendment violation,

and neither its language nor the Attorney General’s official

ballot summary (J.A. 257-258) mentions either race or deseg-

regation.” (Res. Br. 37 n.24; emphasis added.) Quite apart

from the concession of Proposition 1’s author and chief sponsor

that court-ordered “busing” is itself a “buzzword,”* the

board’s statement is simply false. For Proposition 1 (unlike,

for example, Initiative 350, at issue in No. 81-9) does explicitly

refer to matters of race — by providing that “[n]Jothing herein

shall prohibit the governing board of a school district from

voluntarily continuing or commencing a school integration

plan... .” If the amendment’s prohibition indeed applied to

court-ordered “pupil school assignment or pupil transporta-

tion” for any purpose whatever, then this race-specific proviso

would obviously make no sense.* Thus the board is more

dissenting in part). See also Fullilove v. Klutznick, 448 U.S. 448, 482-484

(1980) (Burger, C.J., announcing judgment). But the classification in this

case manifestly falls outside both the “plainly innocuous” and the “clearly

remedial” categories.

‘After Senator Robbins repeatedly employed the phrase “forced busing”

on a campaign swing through Fresno, he was asked, “Isn't that a

buzzword?” As reported by The Fresno Bee, Robbins replied, “Yes . . . .

[t}hat’s why we use it.” J.A. 243.

’Proposition 1 would in that event assure that local school boards main-

tained authority to reassign or transport students in order to desegregate

schools, without similarly assuring that like authority was retained by school

boards to satisfy the educational needs of the handicapped, to relieve over-

crowding, and to provide “distance” or “hazard” busing. Yet in many such

situations — overcrowding, for instance — reassigning only those pupils who

ask to be transported to non-neighborhood schools might prove as unfair and

ineffective a solution as it does with respect to disproportionately minority

schools in minority neighborhoods. It thus seems most unlikely that Proposi-

q

faithful to the actual reach of Proposition 1 when it concedes

elsewhere that Proposition 1, as written and as construed by

the court of appeal, deals “only [with] the power of a state

court to order mandatory reassignment of students as a remedy

for. . . racial imbalance.” (Res. Br. 28; emphasis added.) See

also Opposition to Cert. at 9. Indeed, never before has any

proponent or opponent of Proposition 1 even intimated that

the amendment might forbid court-ordered student assign-

ment or transportation for purposes other than the relief of

racial isolation. Certainly no such meaning or intent was

ever disclosed to the California voters who approved Proposi-

tion 1 — and who might well have been reluctant to deny han-

dicapped children, children who live great distances from

school, children who must traverse special hazards to reach

school, or children at overcrowded schools, the ability to

secure court-ordered reassignment remedies where local

school boards proved unwilling to furnish transportation con-

ceivably required by the California Constitution.’

Thus text, common understanding, and the authoritative

construction below (Pet. Br. 35-36) converge: Proposition 1

embraced only student assignment and transportation for the

purpose of racial desegregation.®

tion 1 was meant to prevent school boards from reassigning and transporting

pupils as the boards might deem necessary not solely to desegregate but in all

these contexts. If Proposition 1's ban on judicial orders compelling school

boards to adopt reassignment plans were truly to extend beyond desegrega-

tion, however, then the proviso would surely have read: “Nothing herein

shall prohibit the governing board of a school district from voluntarily con-

tinuing or commencing a pupil assignment or transportation plan... .”

® Typical is this statement by the County of Los Angeles in its amicus brief

on the board's behalf at 22: “Proposition 1 only changed the California law

with regard to Court-ordered mandatory reassignment of pupils to remedy

purely de facto segregation.”

7 California law specifically requires that ballot descriptions for all proposi-

tions placed before the electorate fully and fairly disclose to voters the nature of

the measures presented to them. See Amador Valley Joint Union High School

District v. State Board of Equalization, 22 Cal. 3d 208, 231, 243 (1978).

*The Analysis by Legislative Analyst, for example, concerns solely

“segregation” and “desegregation:” the “Background” statement describes

5

B. Misstating the Relation Between Proposition 1 and

Pre-Existing California Law to Paint the Amendment's

Racial Classification as a Mere Corollary of Repealing

the Prior Law.

Where a state has given racial minorities as such a right or

remedy not required by the Fourteenth Amendment itself, the

subsequent rescission of that step, without more, is by defini-

tion a race-specific action — but has not been deemed the sort

of racial classification that automatically triggers strict judicial

desegregation law under the federal and California Constitutions, the basis

and status of ongoing California desegregation cases, and the possibility of

more such cases in the future; and the “Proposal” description states that the

“proposition would limit the power of California courts to require desegrega-

tion.” See J.A. 258-260. The ballot arguments in favor of Proposition 1 also

refer exclusively to matters of segregation and desegregation. Thus, State

Senator Alan Robbins, the amendment's author, directs attention to

“COURT-ORDERED COMPULSORY BUSING,” “[t}he racial tension and

strife of compulsory busing,” and “the conclusion that forced busing is not a

useful tool in achieving desegregation . . . .” J.A. 267 (capital letters and

emphasis in original).

Senator Robbins’ Brief in Support of Respondent describes Proposition | as

_ designed “to repeal independent State authorization for mandatory busing”

because “it was counter-productive to our goal of harmonious race relations and

counter-productive to the achievement of student integration.” Id. at 2. Re-

spondent Bustop, a supporter of Proposition 1 and intervenor in the litigation

below, likewise recites the Question Presented solely in terms of “mandatory

reassignment of students on the basis of race.” (Emphasis added.)

If Proposition 1 were given the construction now advanced by the board

and Solicitor General, with every word reaching as far as a literal reading,

independent of context, could possibly take it, then even Judge Lopez’ decree

of September 10, 1981 — ordering the board to “locat{¢] new magnet schools

in minority neighborhoods, maintain[ ] a lower student-teacher ratio in

predominantly minority schools, and permit[ |] all interested minority students

to participate in the PWT [one-way busing] program,” Res. Br. 20 n.9 —

would seem to violate Proposition 1's ban on judicial imposition of “any

obligation or responsibility with respect to the use of ;upil school assignment

or pupil transportation” unless a Fourteenth Amendment violation is

demonstrated. Yet no respondent or amicus urges any such reading of Prop-

osition 1 — evidently realizing that, were the amendment so sweepingly con-

strued, it would too conspicuously bar any court-ordered progress toward

desegregation whenever it applied.

scrutiny. See Dayton Board of Education v. Brinkman

(Dayton I), 433 U.S, 406, 413-414 (1977); Hunter v. Erickson,

393 U.S. 385, 390 n.5 (1969); Reitman v. Mulkey, 387 U.S.

369, 376, 380-381 (1967). In relying on this principle to save

Proposition 1 from the requirement of a compelling justifica-

tion, the board (Res. Br. 33) and the Solicitor General (U.S.

Br. 12, 20 n.17) completely misstate how Proposition 1 relates

to the legal regime it replaced.

First, the pre-existing law — under which there was a

judicially enforceable duty to “alleviate racial imbalance in

schools regardless of its cause” by all “reasonably feasible”

steps, including busing, Jackson v. Pasadena City School

District, 59 Cal. 2d 876, 881 (1963) -— never represented a

special rule for racial minorities but was grounded in the

broad view California courts had taken (1) of the “right to an

equal opportunity for education,” id. at 882; Serrano v. Priest,

5 Cal. 3d 584, 601-610 (1971); (2) of the plenary authority of

the state’s school boards, Crawford I, 17 Cal. 3d 280, 294

(1976); and (3) of the state’s responsibility for how school

segregation was affected by the housing and other decisions of

“state entities other than school boards.” Jd. at 299." Character-

istically, for example, the California courts have explained their

refusal to treat school district boundaries as sacrosanct in fulfill-

ing the integration mandate of Jackson and Crawford I by in-

dicating that state courts have the same power to reach across

district lines when needed to remedy de facto school segregation

as they have to cross such lines when needed to remedy state

“constitutional violations arising from discrimination in voting

rights . . . . and discrimination in school financing.” Tinsley v.

Palo Alto Unified School District, 91 Cal. App. 3d 871, 907

(1979), pet. for hearing den., June 7, 1979. In these circum-

stances, Proposition 1's race-specific withdrawal of state protec-

* This is a complete answer to respondent Bustop's argument that the court-

ordered remedial actions barred by Proposition 1 were already impermissibly

race-specific under the Fourteenth Amendment. See Brief of Respondent

Bustop at 4-7. See also n.3 supra.

7

tion — even if it were seen as a repeal of pre-existing rights —

would have to be understood as selectively subtracting racial

isolation, and racial isolation alone, from the list of wrongs

regarding which California law had previously imposed

effect-oriented duties independent of cause, intent, and such

matters as local boundaries.

Second, Proposition 1 does not in fact constitute a repeal of

prior rights at all. Despite the Solicitor General's claim that Pro-

position 1 does not make California's “right . . . to attend schools

free of racial isolation, whatever the isolation’s cause, . . . more

difficult [to protect] than. . . other state rights. . . but redefines

the underlying substantive right [itself }” (U.S. Br. 18-19; see also

Res. Br. 26), the court below plainly held that Proposition 1 has

no such structure. See Pet. Br. 38 & n.19. And the Solicitor

General concedes, several pages after making the claim quoted

above, that “under the Proposition, California school boards re-

tain an affirmative obligation, beyond that mandated by the

Fourteenth Amendment, to take steps to alleviate racial isola-

tion, whatever its cause.” (U.S. Br. 23 n.23.)

Third, whatever Proposition 1 is regarded as repealing, its

major thrust, just as in Hunter, is not simply to remove, on a

one-shot basis, the body of law that preceded it, but retroac-

tively to cancel all gains previously made under that body of

law, and prospectively to build into the state's constitution a

permanent bar to any renewed imposition or invocation of the

prior law’s anti-discrimination devices -- the devices wiped

out by the amendment. Thus it is not Proposition 1's mere

rescission of anything “in and of itself,” Dayton I, 433 U.S. at

414, quoting Brinkman v. Gilligan, 503 F.2d 684, 697 (6th

Cir. 1974), that petitioners have ever challenged as a forbid-

den classification by race.

C. Denying that Obstacles to Racial Desegregation as

Such Constitute Racial Classifications At All.

As a final gambit, the Solicitor General advances the curious

argument that, although “Proposition 1 is indeed ‘race-speci-

8

fic’ in the sense that its obvious concern is the issue of racial

isolation in California public schools” (U.S. Br. 16), Proposi-

tion 1 may nonetheless escape strict scrutiny because it “does

not split the California citizenry into racial categories” (id.

17), either in terms of the groups who would have invoked the

desegregation remedies barred by Proposition 1 or in terms of

the groups who favor leaving courts with power to award

those remedies. (/d.; see also Res. Br. 16.)

The short answer is that the Fourteenth Amendment pro-

tects individuals, not groups; it mandates judicial suspicion

toward racial classifications, not special solicitude toward

racial classes. Thus it mattered not that the city charter struck

down in Hunter, 393 U.S. at 390, drew “no distinctions among

racial and religious groups,” subjecting “Negroes and whites,

Jews and Catholics . . . to the same requirements if there is

housing discrimination against them which they wish to end.”

What respondent board and the Hunter Court both describe

as the amendment's “clear violation of the Equal Protection

Clause,” Res. Br. 34-35, was simply its “explicitly racial

classification treating racial housing matters differently from

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

Lee v. Nyquist, 402 U.S. 935 (1972), aff'g 318 F.Supp. 710

(W.D.N.Y. 1970); Evans v. Buchanan, 393 F.Supp. 428, 441

(D.Del. 1975) (three-judge court), aff'd 423 U.S. 963 (1975).

It is no coincidence that such a difference in treatment,

whether in housing or in education, “impacts upon an area of

traditionally high minority concern” (U.S. Br. 16 n.15): to

regard racial segregation as involving no discrimination since

whites no less than blacks, Hispanics, and other minorities are

separated by the practice is to forget that “separate” in this

field is “inherently unequal.” Brown v. Board of Education,

347 U.S. 483, 495 (1954); see Loving v. Virginia, 388 U.S. 1, 8

(1964); Anderson v. Martin, supra, 375 U.S. at 403; Goss v.

Board of Education, 373 U.S. 638, 688 (1963). Contrast Ples-

sy Vv. Ferguson, 163 U.S. 537 (1896).

9

Indeed, far from disproving Proposition 1l’s nature as a

racial classification, the Solicitor General’s concession that the

measure divides legal rights along racial lines, see n.i3 infra,

underscores its presumptive invalidity as a device of segrega-

tion and deepens the case for strict scrutiny.

II. THe Neep FoR COMPELLING JUSTIFICATION 1s DouBLy

CLEAR BECAUSE ProposITION | SpLits THE STATE'S Judicial

System Into Two Parts: ONE Court System For MINoRI-

TIES AND THEIR RiGHts TO DESEGREGATION, ANOTHER FOR

Everyone EL se.

For over a century, this Court has acted on the explicit

premise that each state’s courts, above all, would remain fully

available to vindicate not only federal rights but all applicable

state law claims — particularly claims of racial discrimina-

tion, however caused, in public places.'° That premise has

In the Civil Rights Cases, 109 U.S. 3 (1883), when this Court held that

the Fourteenth Amendment gave Congress no power to redress purely pri-

vate racial discrimination by common carriers, id. at 9-10, the Court express-

ly assumed that state courts would provide such redress. Id. at 17, 19. The

axiom of full and equal access to state courts was indeed at the center of con-

cern for those who wrote the Fourteenth Amendment. See C. Fairman, Re-

construction and Revision, Part I, 1295 (1971) (quoting Senator Howard).

Cf. Strauder v. West Virginia, 100 U.S. 303, 307 (1880). Ever since, this

Court “has held that the due process clauses protect civil litigants who seek

recourse in the courts . . . to redress grievances.” Laverne v. Zimmerman,

50 U.S.L. Week 4247, 4249 (U.S. Feb. 24, 1982). Thus “a state-created

right to redress discrimination” is an “interest [protected] under the Four-

teenth Amendment,” id. at 4250: a state’s freedom to “eliminate [such a

right] altogether” does not extend to “procedural limitation{s] on the . . .

ability to assert [it].” Jd. Such limitations, even if not drawn along suspect

lines, violate equal protection as well as due process if they are “arbitrary.”

Id. at 4253 (Blackmun, J., joined by Brennan, Marshall, and O'Connor, JJ.,

concurring); id. (Powell, J., joined by Rehnquist, J., concurring in judg-

ment). Cf. Lindsey v. Normet, 405 U.S. 56, 78-79 (1972).

On the premise of state-court availability, see generally Hart, “The Power

of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dia-

lectic,” 66 Harv. L.Rev. 1362 (1953); cf. Bator, “The State Courts and Fed-

10

often been reasserted in this Court’s decisions limiting access to

the federal judiciary."

Proposition 1 defeats this premise in ene crucial area: those

who assert rights to desegregation under state law (Crawford I,

17 Cal. 3d at 303) are fenced out of full and unimpeded access

to state judicial vindication precisely when resort to a federal

forum would be unavailing. Limiting access to state judicial

remedies in this way “is the very essence of arbitrary state ac-

tion,” Laverne, supra, at 4253, for it is both irrational in its

own terms and indefensible in terms of the most basic postu-

lates of federal-state relations.'* Worse, it preserves a first-

class judicial system for whites and for educational problems

unrelated to race, while erecting a second-class and radically

eral Constitutional Litigation,” 22 Wm. & M. L.Rev. 605, 625-31 (1981);

O'Connor, “Trends in the Relationship Between the Federal and State

Courts From the Perspective of a State Court Judge,” 22 Wm. & M. L.Rev.

801, 814 (1981).

"' See, e.g., Parratt v. Taylor, 451 U.S. 527, 541 (1981); Ingraham v.

Wright, 430 U.S. 651, 672-80 (1977); Paul v. Davis, 424 U.S. 693, 701, 712

(1976); Rizzo v. Goode, 423 U.S. 362, 373-81 (1976); O’Shea v. Littleton,

414 U.S. 488, 491, 493, 498-502 (1974); Younger v. Harris, 401 U.S. 37

(1971).

'2Nothing in the text or background of Proposition 1, or in any defense

ever offered for it, explains why California courts in desegregation cases

should automatically mirror all the separation-of-powers, federalism, and

statutory limits that bind federal courts, refusing to award decrees that even

federal courts would have awarded but for considerations of federal-state

comity.

Moreover, to the degree that this Court's intent requirement in equal pro-

tection cases stems from respect for state and local autonomy, cf. Mobile v.

Bolden, 446 U.S. 55, 76 (1980) (Stewart, J.), even state court remedies for de

facto, unintentional violations might properly rest, in some circumstances,

directly on Fourteenth Amendment grounds. Finally, that at least some

otherwise de facto discrimination in public schools might indeed become a

matter of state responsibility, and might in that sense become de jure, once a

state deliberately disabled its courts from remedying such discrimination,

could well follow from the approach of the Civil Rights Cases, supra. See

Bell v. Maryland, 378 U.S. 226, 306-07 & n.25 (1964) (Goldberg, J., con-

curring).

11

restricted judicial system for minorities and for problems of

racial isolation in public schools. See Pet. Br. 30-33, 42-53.'%

Never refuting this central point, the board rests on the

assertion that Proposition 1 “incorporates the . . . Fourteenth

Amendment as the governing standard” and “does not create

‘obstacles’ for school desegregation any more than the Four-

teenth Amendment itself.” (Res. Br. 19; id. 16.) Not only is

this unresponsive; it is false. For the fact is that Proposition 1

expressly conditions state court relief upon proof of a substan-

tive Fourteenth Amendment violation and a showing that the

relief sought could be imposed by “a federal court . . . under

federal decisional law . . . to remedy the specific violation.”

Article I, § 7(a)(2) (emphasis added). As the board puts it,

Proposition 1 makes a state court’s powers “identical to those

of a federal court operating under the same facts and circum-

stances.” (Res. Br. 20.) Thus the court below asked at the out-

set whether a federal court would do what petitioners had

asked the state courts to do. (Res. Br. 6; Pet. App. 48A-49A.)

But federal court authority to adjudicate and remedy legal

wrongs depends upon more than the applicable substantive

rules; it depends, too, upon institutional limits derived from Ar-

ticle III separation-of-powers principles, from principles of

federalism, and from the relevant statutory limits on federal

jurisdiction.‘ If, therefore, “federal decisional law” would

'? Discussing this aspect of petitioners’ analysis, the Solicitor General calls

“ingenious” the argument that “Proposition 1 singles out a right afforded. . .

school children under [California] law to attend schools free from racial iso-

lation, whatever the isolation’s cause, and subjects [that one] right to an

unusual judicial process that makes protection of the right substantially more

difficult than protection of other state rights.” (U.S. Br. 18; emphasis

added). But no ingenuity is needed to see that the racial gerrymander

worked by Proposition 1, unlike that challenged by the Seattle School Dis-

trict in No. 81-9, cuts through the very core of the state’s court system. The

Solicitor General all but concedes the point when he describes as “‘race-

specific” Proposition 1's focus upon “the issue of racial isolation” as such.

(U.S. Br. 16) (emphasis added).

“See generally Sager, “Fair Measure: The Legal Status of Judicially

Underenforced Constitutional Norms,” 91 Harv. L.Rev. 1212 (1978) (Four-

12

have defeated desegregation plaintiffs such as petitioners had

they sought federal court relief, the reason may well be pecu-

liar to the forum involved, and may indeed presuppose the

availability of state judicial relief for the identical claim. See

nn.10-12 supra. Yet Proposition 1 automatically slams the

state court’s doors on such plaintiffs whenever federal courts

would do so — even where the plaintiffs’ claims for relief have

substantive merit under the Fourteenth Amendment,'* or

might be treated as having such merit but for a federal judicial

concern to avoid intrusion into state autonomy."*

Such an Alphonse-and-Gaston routine, whereby state courts

must step aside just because federal courts, deferring to the

states, would have done the same, is utterly senseless. At the

very least, therefore, strict scrutiny is required not only be-

cause Proposition 1 creates a dual court system but also

teenth Amendment norms have substantive reach beyond the bounds within

which federal courts, for reasons of federal-state relations and separation-of-

powers, are themselves able to enforce such norms).

'® Thus a California court prior to Proposition 1 would have enjoined state

officials, in a suit by black parents or taxpayers, see White v. Davis, 13 Cal.

3d 757 (1975), from busing white pupils to all-white private schools at public

expense. But even though such public support for private segregation vio-

lates the Fourteenth Amendment, see Norwood v. Harrison, 413 U.S. 455

(1973), the Solicitor General has argued that a federal court cannot hear such

a suit. See Pet. for Cert. in Regan v. Wright, No. 81-970. On that view,

Proposition 1 would automatically insulate this Fourteenth Amendment vio-

lation from redress in California's courts as well.

See nn.10-12, 14 supra. Consider court-ordered interdistrict pupil as-

signments to remedy segregation not caused by the defendant school district.

Partly out of respect for state autonomy, this Court has defined both liability

and remedy in that context so as to avoid federal “ ‘judicial interference with

state prerogatives concerning the organization of local governments.’” Hills v.

Gautreaux, 425 U.S, 282, 296 n.12 (1976) (upholding interdistrict remedy

against federal agency) (quoting amicus memorandum of U.S. Gov't. in

Milliken v. Bradley, 418 U.S. 717 (1974)); ef. Milliken, 418 U.S. at 741-43.

But these reasons have no relevance to California's own courts; having disre-

garded local district boundaries in voting and school finance cases, the state's

courts lack any neutral reason to let their enforcement of desegregation prin-

ciples, state or federal, track district lines. See Tinsley, supra (declining to

do so). Yet Proposition 1 requires just that outcome.

13

because it reserves for desegregation plaintiffs the burdens of

its revolving-door approach to justice, and of the resulting

breach in the combined remedial jurisdiction of state and fed-

eral courts. '”

III. Proposition 1 1s Not COMPELLINGLY JUSTIFIED.

The only arguable candidates for such justification are

palpably insufficient.'* Petitioners examine each here.

A. The Quid Pro Quo Justification: Giving Minorities

Fourteenth Amendment Protection “Plus.”

Both the board (Res. Br. 21, 28, 34) and the Solicitor

General (U.S. Br. 11-15) argue that Proposition 1 automatic-

ally survives the strictest Fourteenth Amendment scrutiny be-

cause, by its own terms, it provides all the protection called for

by the Fourteenth Amendment — and more. Minorities, it is

said, can hardly complain when they receive judicial treat-

ment that may be “separate” but is more than “equal” to what

the Fourteenth Amendment itself dictates.

To state the argument is to refute it. First, the only relevant

comparison is between how the state’s judicial system, given

Proposition 1, treats racial segregation and how it treats other

legal wrongs analogously cognizable under the state constitu-

'’ The very existence of such a breach itself violates due process, St. Joseph

Stock Yards Co. v. United States, 298 U.S. 38, 84 (1936) (Brandeis, J., con-

curring), and conflicts with the tacit postulates of federalism. See nn. 10-12,

14 supra. Thus, to extol such a scheme as an expression of state diversity

(Res. Br. 22), or to drape it in the vestments of state experimentation (U.S.

Br. 12), mocks the virtues of federalism and makes the values of states’ rights

into mere masks for racism.

'*Such “justifications” as savings funds and fuel (Res. Br. A2) are too

patently inadequate and ill-fitting to merit extended discussion, as is the

“compelling state interest” of letting the people of California have their way.

Amicus Brief of California 6, 11-12.

14

tion — such as unequal school finance. To compare the state

and federal treatments of segregation misses the whole point.

See Pet. Br. 33-34. Second, the argument’s premise — that

Proposition 1 leaves California's courts fully equipped to vin-

dicate all substantively valid Fourteenth Amendment school

desegregation claims — is simply false. See Part II supra.

B. The “What-You-Lost-Wasn't-Worth-Having”

Justification: Questioning the Need For, and

and Efficacy of, Court-Ordered Busing.

A second justification suggested by the board (Res. Br. 19-

20) and the Solicitor General (U.S. Br. 13, 24, 27) is that Prop-

osition 1 merely abandoned “an experiment that . . . was not

working — . . . [the] experiment with busing to alleviate de

facto racial segregation,” and replaced it with a set of ap-

proaches more likely to benefit “public school children, their

parents, and the community as a whole.” Id. at 13.'°

It has become a familiar observation that court-ordered

mandatory pupil reassignment and transportation may at

times prove ineffectual or even counterproductive. See, e.g.,

Columbus Board of Education v. Penick, 443 U.S. 449, 483

(1979) (Powell, J., dissenting). But it is equally plain that

“[i]n some instances busing will be an appropriate and useful

element in a desegregation plan.” Crawford I, 17 Cal. 3d at

309 (emphasis added). See North Carolina Board of Educa-

tion v. Swann, 402 U.S. 43, 46 (1971) (“truly effective

remedy” often requires “continued reliance” on busing). See

also n.25 infra.

Thus Proposition 1, if justified in the terms proposed here,

fails for want of anything like the requisite “exact connection

between justification and classification.” Fullilove, supra,

448 U.S. at 537 (Stevens, J., dissenting). It has been neither

' Construed literally, Proposition 1 would, of course, rule out virtually all

judicial techniques for desegregation. See n.8 supra.

15

ee

“structured with ‘precision’” nor “‘tailored’ narrowly to

legitimate objectives,” San Antonio School District v.

Rodriguez, 411 U.S. 1, 17 (1973), since its proscription of

various remedies is made to depend neither on findings as to

the value of those remedies in the specific case, nor on pre-

cisely tailored criteria of likely need and efficacy.®°

C. The “Neighborhood Schools” Justification.

Evidently borrowing its basic argument from the Seattle

case (No. 81-9), the Solicitor General argues that Proposition 1

“is merely an expression of support for the maintenance of

neighborhood schools.” (U.S. Br. 27.) Whatever its merits in

Seattle, this rationale cannot justify Proposition 1, which

simply did not enact a state-wide, race-neutral neighborhood

school policy. Indeed, by expressly sanctioning the continuing

operation of mandatory, non-neighborhood plans whenever

local school boards choose to adopt them, Proposition 1

deliberately eschewed the creation of a state policy that

favored neighborhood schools.*' In no sense is Proposition 1

“precisely tailored to serve a compelling governmental in-

* The existence of popular support for mandatory pupil transportation, as

reflected by a school board decision, certainly cannot serve as an accurate

enough proxy for an unbiased determination of whether and when various

reassignment remedies are needed, and are likely to work. Even with benign

racial classifications, “weigh[ing] by the political process” is insufficiently

reliable. Bakke, supra, 438 U.S. at 361 (Brennan, White, Marshall, and

Blackmun, JJ.). A fortiori, such a political assessment is an insufficient

proxy when the classification is challenged as invidious by a racial minority,

*! As the Solicitor General concedes (U.S. Br. 6 n.5), Proposition 1 permits

local boards to adopt “school integration” plans that rely in whole or part

upon mandatory non-neighborhood student reassignment and transporta-

tion: at the time Proposition 1 was passed, “a number of California school

districts . . . voluntarily operated mandatory, non-neighborhood” desegrega-

tion programs in satisfaction of their state constitutional obligations. Id. See

also Res. Br, 19, 38.

16

terest,” Bakke, 438 U.S. at 299 (opinion of Powell, J.), in

neighborhood schools.”

IV. THe Court BELow IMPERMISSIBLY BYPASSED THE INQUIRY

Manpatep By Arlington Heights.

The decision below, in upholding Proposition 1, did not

even cite, much less follow, this Court’s Arlington Heights

precedent. See Crawford II, 113 Cal. App. 3d at 654-55.

Rather than finding suspicious the failure of the purposes

stated in Proposition 1 or urged in its defense to fit what Prop-

osition 1 actually accomplishes, see Part III, supra, the court

indefensibly treated the amendment’s mere incantation of

race-neutral objectives as “[a] sufficient answer” to peti-

tioners’ entire claim of racially discriminatory impact and in-

tent. 113 Cal. App. 3d at 654.” In an observation particular-

ly apposite here, the court in Brown v. Califano, 627 F.2d

1221, 1231 n.57 (D.C. Cir. 1980), warned that such objectives

as “preserving neighborhood schools . . . promoting safety. . .

and cutting energy costs . . . have sometimes thinly hidden op-

* See also Penick, 443 U.S. at 461 n.8 (rejecting neighborhood school

policy justification where optional attendance zones, permitting white

students to avoid black schools near their homes, cast doubt on “avowed ]

. » » preference for neighborhood schools”). Allowing local school boards to

desegregate with mandatory inter-neighborhood reassignment plans also

forces minoriiies to entrust their state constitutional rights to the will of the

majority — or, more specifically, of the voting majority's elected represen-

tatives on the school board. Yet the very meaning of a “right” requires plac-

ing it beyond the reach of majorities and officials. West Virginia Bd. of

Educ. v. Barnette, 319 U.S. 625, 638 (1943); Lucas v. Forty-Fourth Gen.

Assembly of Colorado, 377 U.S. 713, 736-37 (1964) (state-created rights to

vote must be distributed one-vote-per-person even if majority approves

another formula).

* Contrary to the Solicitor General's argument (U.S. Br. 25), nothing in

Weinberger v. Wiesenfeld, 420 U.S. 636, 648 n.16 (1975), as quoted in

Michael M. v. Superior Court, 450 U.S. 464, 470 (1981), remotely supports

making “the mere recitation of a benign ... purpose ... an automatic

shield . . . against any inquiry into. . . actual purposes.” 420 U.S. at 648.

17

position to desegregation or equal educational opportunity.” And

Brown, upon which the board relies heavily (Res. Br. 20-21,

32-33, 36, 41), condemned as “unconstitutional” the “aim[ ] of

preventing racial assignment as a desegregation remedy... . ,”

627 F.2d at 1231 n.57, an aim that manifestly animated Prop-

osition 1, at least in part. See also id. at 1235 nn. 81, 82.™

The board and Solicitor General, completely embracing the

opinion below, appear to regard Arlington Heights as beside

the point on the theory that increased racial isolation in public

schools,** and even the creation of lasting impediments to

using state courts to reduce such racial isolation in minority

areas,"° do not count as discrimination against racial

* The board omits from its brief, as if inorganic to the setting, the court-

ordered desegregation program, including mandatory pupil transportation,

ongoing in Los Angeles when Proposition 1 was passed, and the concern then

widely expressed that the program might be expanded to include nearby

districts. Contrast U.S. Br. 27. See Pet. Br. 14-18,

*° This is indisputably among Proposition 1's consequences. The trial court

found below, e.g., that the state’s constitutional duty to petitioners could not

be met absent some mandatory reassignment. Pet. Br. Al6-A23. This find-

ing was not overturned in Crawford I, nor in subsequent rulings in this case.

Pet. Br. A32-A33.

Ending the court's mandatory program as Proposition 1 required, and re-

placing it with the program ordered by Judge Lopez this past fall, has, pre-

dictably, substantially increased the racial isolation of minority schools

previously part of the mandatory program. Pet. Br. A29-A35. At the same

time, of the 48 pairs and clusters of schools (all operating within enrollment

capacity in the 1980-81 school year) that had been involved in the mandatory

program that Proposition | ended, twenty-six schools (all but one, predom-

inantly minority) have this year been classified by the board as overcrowded,

LAUSD Enrollment Data, Oct., 1981. Thirteen of these schools were placed

on a year-round schedule because of this overcrowding. Id, Finally, more

than 85% of the students participating in the plan now in operation are

minority, as are an even larger percentage of the students actually

transported, Id.

Petitioners are aware of no unreversed federal court decision that has ever

found a constitutional mandate to desegregate satisfied by a program making

no use of mandatory reassignments.

* However construed facially (Parts 1-11 supra), Proposition 1 plainly has

the effect of impeding the use of California courts to desegregate schools in

minority neighborhoods.

18

minorities. See Res. Br. 18-20, 41; U.S. Br. 24-25. But the

state courts found as a matter of fact,®” just as Brown v. Board

of Education, 347 U.S. at 494-95, held as a matter of law, that

separating racial minorities in itself discriminates against such

minorities.”

Petitioners also offered ample evidence below to buttress the

inferences of intent to which Proposition 1’s obvious effects,

and the circumstances surrounding its sudden and unusual

adoption, give rise. Since the trial court, having ruled Prop-

osition 1’s constitutionality irrelevant (Res. Br. 43), had no oc-

casion to consider this evidence,” the court of appeal should at

least have remanded for such consideration once it held Prop-

osition 1 controlling. Instead, in lieu of the “sensitive inquiry

into such circumstantial and direct evidence of intent as

"7 See Crawford I, 17 Cal. 3d at 289 (affirming trial court finding “that

minority children suffer serious harm when their education takes place in

segregated public schools . . . whether such segregation is de jure or de

facto,” and that in Los Angeles “the plant, teachers, physical facilities and

curriculum” at “minority segregated schools are in fact of poorer quality

than... at... predominantly white schools.”).

**The Brown Court held, quoting from the lower court in the Topeka

case, that “[s]egregation of white and colored children has a detrimentaé im-

pact upon the colored children, The impact is greater when it has the sanc-

tion of the law... .” 347 U.S. at 494 (emphasis added).

* Petitioners and the board both briefed at trial the admissibility of the

materiais petitioners submitted (Res. Br. 43; J.A. 309; 55 C.T. 16484-16513),

all of which were presented below and are part of the record here, contrary

to the board's claim, Res. Br. 43, That the trial court, deeming Proposition

1 inapplicable, did not rule on admissibility argues at most for remand —

surely not for this Court to resolve that state-law issue. At all events,

testimony admitted below included evidence probative of discriminatory in-

tent. See, ¢.g., Pet. Br. 92 n.52; 64 RT 9185, 9213, 9231, 9289; 65 RT

9364-9365, 9378, 9379 (testimony of court-appointed expert Orfield that

part of opposition to mandatory reassignment reflects prejudice against

racial minorities); 66 RT 9552-9553, 9560 (similar test. of petitioners’ expert

Rossell); 28 RT 4211 (similar test. of board expert Ross); 57 RT 8482-8483

(similar test. of board witness Jordan, L.A. Assoc, Super. for School Integra-

tion, regarding Los Angeles). In accord is expert opinion generally: ¢.g.,

Sears, Lau, Tyler & Allen, “Self-Interest versus Symbolic Politics in Policy

Attitudes & Presidential Voting,” 74 Pol. Sci. Rev. 670 (1980).

19

may be available,” Arlington Heights, 429 U.S. at 266, the

court derided such inquiry as “pure speculation,” 113 Cal.

App. 3d at 655, and simply decreed, based on its speculation,

that, because Proposition 1 “could have been [properly]

motivated,” id. (emphasis added), the matter was at an end.

Were that the law, Arlington Heights would have been writ-

ten never to be satisfied. Whatever “deference” is owing a

conscientious state court effort to ascertain discriminatory

purpose and effect, see Res. Br. 40, none is due here, where no

such effort has been made — either, as proper, by the trial

court, or by the court of appeal. Thus, this case at minimum

must be returned to the state courts with directions to apply

Arlington Heights appropriately.

Conclusion.

With just one exception, California’s Constitution makes

equal educational opportunity a fully enforceable right, giving

state courts both the power and the duty to remedy violations

— as with schools that are under-funded or overcrowded —

that may result from no deliberate state choice to deny equality,

and may require remedies that cross neighborhood and district

lines. The fact that a federal court would find no Fourteenth

Amendment violation or would for some other reason deny the

relief sought does not lead the state’s courts to follow suit by de-

nying relief themselves — again, with just one exception.

It is only with respect to claims of racially segregated school-

ing that California confers a broad constitutional right of

equal opportunity, but then bars its otherwise independent

judiciary from fully vindicating that right, requiring its courts

to deny pupil assignment and transportation remedies,

however necessary in the particular case, precisely when a

federal court would refuse this relief, and when the need for

such relief from a state court is thus at its maximuns.

20

Proposition 1, which created this racially defined and

perversely structured gap in the state’s judicial apparatus —

putting in place a dual court system, with minorities alone

relegated to revolving-door justice — should be strictly scru-

tinized and found wanting. Lacking any neutral, much less

compelling, justification, it is racially discriminatory on its

face, in its effects, and in its aims. The judgment of the court

of appeal, which first ignored Proposition 1’s racial classifica-

tion and then refused even to permit inquiry into its racially

discriminatory impact and intent, should accordingly be re-

versed.

Respectfully submitted,

LAURENCE H. TRIBE

FRED OKRAND

MARK D. ROSENBAUM

MARY ELLEN GALE

JOSEPH H. DUFF

ANTONIO RODRIGUEZ

BRUCE J. ENNIS

E. RICHARD LARSON

Counsel for Petitioners

March 12, 1982