633 F.2d 1338 (9th Cir. 1980), 79-4643, Seattle School Dist. No. 1 v. State of Wash.

Docket Nº:79-4643, 79-4655, 79-4676, 79-4740, 79-4801 and 79-4802.
Citation:633 F.2d 1338
Party Name:SEATTLE SCHOOL DISTRICT NO. 1 et al., Plaintiffs-Appellees, v. The STATE OF WASHINGTON et al., Defendants-Appellants.
Case Date:December 16, 1980
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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633 F.2d 1338 (9th Cir. 1980)

SEATTLE SCHOOL DISTRICT NO. 1 et al., Plaintiffs-Appellees,


The STATE OF WASHINGTON et al., Defendants-Appellants.

Nos. 79-4643, 79-4655, 79-4676, 79-4740, 79-4801 and 79-4802.

United States Court of Appeals, Ninth Circuit

December 16, 1980

Argued and Submitted June 30, 1980.

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[Copyrighted Material Omitted]

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Camden M. Hall, Foster, Pepper & Riviera, Seattle, Wash., for Seattle School Dist.

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Hall Baetz, Davis, Wright, Todd, Riese & Jones, et al., Seattle, Wash., for Pasco Neighborhood Council.

Slade Gorton, Atty. Gen. & Thomas F. Carr, Asst. Atty. Gen., Olympia, Wash., Michael W. Hoge, Seattle, Wash., for State of Washington.

Frederick Noland, MacDonald, Hoague & Bayless, Seattle, Wash., Robert J. Reinstein, Dept. of Justice, Washington, D.C., for Civ. Liberties.

Stew Cogan, Seattle, Wash., for Pasco Neighborhood Council.

Appeal from the United States District Court for the Western District of Washington.

Before ELY, WRIGHT and NELSON, Circuit Judges.

ELY, Circuit Judge:

This cause comes before the Court in an unusual posture. Local elected school authorities, who so often in the past in other jurisdictions have resisted court-ordered integration, have in this instance invoked the jurisdiction of the federal courts because their self-generated efforts to achieve racial balance in the public schools have been hindered by governmental action. Successful, locally-formulated public school desegregation programs in Washington are today threatened with extinction through enforcement of a Washington State statute by State officials.

The Seattle, Tacoma, and Pasco, Washington, school boards, in an effort to correct substantial racial imbalance in the public schools in those communities, have in recent years implemented a series of voluntary and mandatory desegregation programs. Because of persistently segregated residential housing patterns in the three metropolitan areas, these desegregation plans have necessarily entailed some assignment of students to schools other than those closest to their homes. The success of these programs has been manifest, and the "Seattle Plan" in particular has been hailed as a model for other large cities.

The continued efficacy of these programs became imperiled, however, in November 1978, when Washington voters adopted ballot Initiative 350 by a substantial statewide margin. Initiative 350 provides, in pertinent part, that:

no school board ... shall directly or indirectly require any student to attend a school other than the school which is geographically nearest or next nearest the student's place of residence ....

In November 1978, after the State threatened enforcement of Initiative 350, the three school districts filed a complaint in the District Court seeking a declaratory judgment that the statute was unconstitutional under the equal protection clause of the Fourteenth Amendment. In December 1978, prior to certification of Initiative 350 as a state law pursuant to Wash.Rev.Code § 29.62.130 (1974), the District Court issued a temporary restraining order barring enforcement. On February 9, 1979, the District Court issued a preliminary injunction continuing to block implementation of the statute and at the same time granted the motion of eight Washington public interest groups to intervene. Also on February 9, the District Court bifurcated the litigation. Phase I, from which this appeal is taken, was limited to the question of the constitutionality of Initiative 350. Phase II issues, which were not reached at trial because the District Court held that the statute violated the Fourteenth Amendment, derive from the intervenors' claim that the school districts operate unconstitutional dual school systems.

After an extended trial, District Judge Voorhees, on June 15, 1979, issued a Memorandum Opinion, together with Findings of Fact and Conclusions of Law, declaring Initiative 350 unconstitutional. Seattle School Dist. No. 1 v. State of Washington, 473 F.Supp. 996 (W.D.Wash.1979). He concluded that Initiative 350 was unconstitutional on three distinct grounds:

(1) it forbids mandatory student assignments for racial reasons but permits such student assignments for purposes unrelated to race, (2) a racially discriminatory

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purpose was one of the factors which caused Initiative 350 to be adopted, and (3) the initiative is overly inclusive in that it permits only court-ordered busing of students for racial purposes even though a school board may be under a constitutional duty to do so even in the absence of a court order.

473 F.Supp. at 1012.

On August 29, 1979, the District Court issued a final order declaring Initiative 350 unconstitutional and permanently enjoining its enforcement. Also on August 29, the District Court issued a separate order denying the school districts' and intervenors' separate motions for attorney's fees.

Appellants, the State of Washington and various state officials, appeal from the District Court judgment declaring Initiative 350 unconstitutional. Appellees, the three Washington school districts and intervenors, cross-appeal from the order denying their motion for attorney's fees. One of the intervening appellees, East Pasco Neighborhood Council, also cross-appeals from the denial of its motion that the Pasco School District be dismissed as a plaintiff. 1 The United States appeared, and continues to appear, as an intervenor in support of the plaintiffs-appellees.

I. Constitutionally of Initiative 350-The Appeal

We find it unnecessary to discuss the District Court's holding that Initiative 350 was motivated by a discriminatory purpose and is unconstitutionally overbroad because we conclude that the statute was correctly struck down as an impermissible legislative classification based on racial criteria. Hunter v. Erickson, 393 U.S. 385, 391-93, 89 S.Ct. 557, 560-61, 21 L.Ed.2d 616 (1969); Lee v. Nyquist, 318 F.Supp. 710, 718-20 (W.D.N.Y.1970), aff'd, 402 U.S. 935, 91 S.Ct. 1618, 29 L.Ed.2d 105 (1971).

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We note at the outset the operative legal and political effect of Initiative 350. As the District Court below said, the statute "was conceived, drafted, advocated and adopted for the specific purpose of overriding the decision of the Seattle School Board to balance Seattle schools racially by means of student assignments." 473 F.Supp. at 1015. 2 We agree with the District Court that

(a)lthough the initiative does not explicitly disallow student assignment for racial reasons, as did the New York statute considered in Lee v. Nyquist, it achieves the same purpose by enumerating those purposes for which there may be student assignment and omitting from that enumeration the assignment of students in order to achieve racial balance. This is as effective a racial classification as is a statute which expressly forbids the assignment of students for racial balancing purposes.

Id. at 1013. 3 Initiative 350 embodies a constitutionally-suspect classification based on racial criteria because it legislatively differentiates

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student assignment for purposes of achieving racial balance from student assignment for any other significant reason. 4

The constitutional framework established in Hunter v. Erickson and Lee v. Nyquist dictates that Initiative 350 must fall. In Hunter, the Supreme Court invalidated an amendment to the Akron City charter requiring that any fair housing ordinance passed by the city council be approved by a majority of the city voters prior to becoming law. The Court struck down the amendment on equal protection grounds because it created "an explicitly racial classification treating racial housing matters differently from other racial and housing matters." 393 U.S. at 389, 89 S.Ct. at 559.

The Court in Hunter also noted that the amendment "not only suspended the operation of the existing ordinance forbidding housing discrimination," but also restructured the existing political process to require the approval of the electorate before any future ordinance could take effect. Id. at 389-90, 89 S.Ct. at 559-60. By so altering the governmental structure on matters concerning a racial distinction, making it more difficult for minorities to secure favorable legislation, the amendment placed unconstitutional "special burdens on racial minorities within the governmental process." Id. at 391, 89 S.Ct. at 560. We agree that "(t)he principle of Hunter is that the state creates an 'explicitly racial classification' whenever it differentiates between the treatment of problems involving racial matters and that afforded other problems in the same area." Lee v. Nyquist, 318 F.Supp. at 718.

In Lee, a three-judge district court applied Hunter to strike down a New York statute that prohibited racially-conscious student assignment by appointed school boards, but not by elected boards. The statute was unconstitutional, the court said, because it "creates a clearly racial classification, treating educational matters involving racial criteria differently from other educational matters and making it more difficult to deal with racial imbalance in the public schools." 318 F.Supp. at 719.

Applying these principles here, it is manifest that Initiative 350 both creates a constitutionally-suspect racial classification and radically restructures the political process of Washington by allowing a state-wide majority to usurp traditional local authority over local school board educational policies. Initiative 350 implicitly effects precisely the same classification which was made explicit in Lee ; the law treats a single purpose for student assignment, racial balancing, differently from all others. Though Initiative 350 creates the differential classification indirectly by omission, there is no basis for distinguishing it as a matter of constitutional law from the explicit classifications of Hunter and Lee. Unless...

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