Court Considers Racial Intent of Two States' Anti-Busing Laws

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Washington--Statewide anti-busing initiatives in Washington and California were racially motivated and thus violated the equal-protection rights of minorities, the U.S. Supreme Court was told last week by lawyers seeking to have the statutes declared unconstitutional.

In the same way that the old segregationist laws of the South forced blacks to the "back of the bus," the California law amounts to "relegating minorities to the back of the courthouse under the subtle laws of the 'New North,"' argued Laurence H. Tribe, a Harvard University constitutional scholar representing the minority-group plaintiffs in the Los Angeles school-desegregation case.

The plaintiffs in the 19-year-old Los Angeles case, Crawford v. Board of Education of the City of Los Angeles (81-38), are challenging Proposition 1, a 1979 amendment to the state constitution that relaxed the state's definition of illegal segregation and forbade state courts to order busing unless it could be proven that the segregation was intentional.

From 1963 until the enactment of Proposition 1, California's definition of segregation exceeded the standards established by the U.S. Supreme Court. Whereas intent to segregate must be proven before the federal courts may issue busing orders, any segregation, however it came about, was held to violate the California constitution.

It was under these old state standards that busing was ordered in Los Angeles, beginning in 1978. After Proposition 1 was enacted and found constitutional by state courts, the mandatory busing plan in the nation's third-largest district was dismantled.

'Dual Judicial System'

Proposition 1, the Los Angeles plaintiffs claim, creates a "dual judicial system" in the state--a first-class system for all issues except school desegregation and a second-class system with limited remedies for minorities seeking desegregation.

The Washington case, Seattle School District No. 1 v. Washington (81-9), while it also involves an anti-busing law enacted by referendum, turns on the state's right to bar school districts from desegregating on their own. The California amend-ment, by contrast, allows locally initiated desegregation plans.

The school boards of Seattle, Tacoma, and Pasco--without having been ordered to do so--decided in the 1970's to alleviate racial isolation in their schools by reassigning students for racial balance.

In 1978, the state's voters approved Initiative 350, which forbids districts to bus students beyond the schools "next nearest" to their homes except for certain purposes--including health, safety, and special educational needs.

Since the Washington law allows busing for some purposes, but prohibits it for desegregation unless ordered by a federal court, "race is written all over the face of Initiative 350," argued Michael Hoge, attorney for the Seattle board.

The Washington law has been found invalid by two federal courts and has not been put into effect, Mr. Hoge said. If it were, he claimed, the Seattle schools would become more segregated than they were before the locally initiated plan was put into effect.

Under questioning from Chief Justice Warren Burger, Mr. Hoge said he did not necessarily equate opposition to busing with "discriminatory purpose."

Discriminatory Intent

But Mr. Hoge noted that the U.S. District Court in Seattle, in holding the statute invalid, found that discriminatory intent was at least one factor in the passage of the referendum. (The U.S. Court of Appeals for the Ninth Circuit, which also found the law unconstitutional, did not address the question of discriminatory intent, but did say that the statute implicitly contained a "racial classification.")

"The impact was a certainty and it was known in advance," Mr. Hoge maintained. "The drafting history and the campaign history show clear intent only to stop desegregation busing."

Lawyers defending the two state statutes said it could not be proven that they were aimed exclusively at ending desegregation. Accordingly, the lawyers argued, the laws do not treat minorities as a separate class and are not constitutionally suspect.

California's Proposition 1 "is not limited to school desegregation,'' said G. William Shea, attorney for the Los Angeles school board. "Nowhere is there any limitation that would not involve overcrowded schools or handicapped students."

The Los Angeles plaintiffs "have no evidence of discriminatory purpose," Mr. Shea continued. "What they really point to is a miscellaneous collection of newspapers, campaign literature, and historical treatises. None of that was admitted below [in the California Supreme Court].... The petitioners had every opportunity to offer evidence of this discriminatory purpose, and they offered none."

Relevant Language

Similarly, U.S. Solicitor General Rex E. Lee, arguing on behalf of the Justice Department in favor of Proposition 1's constitutionality, said the plaintiffs had failed to show that the amendment "applies only to desegregation."

"The relevant language simply will not yield to their rewriting," Mr. Lee added.

"Isn't it true," interjected Associate Justice Byron R. White, "that the real-life problem that the amendment addresses is busing for racial purposes?"

Mr. Lee rejected that argument and contended that the Court might actually harm integration efforts if it invalidates the California amendment. "States would no longer feel free to experiment" with techniques that exceed federal requirements, Mr. Lee said, if they believed they would be locked into the stricter standards even if they did not work.

'Discrete Choice'

Kenneth O. Eikenberry, Washington State's attorney general, argued that the state's anti-busing law "is simply a discrete choice by the voters of the state of Washington to accommodate the benefits of neighborhood schools and the benefits of racial diversity." Because it allows districts to assign students to the "next-nearest" school, not only to the school nearest their homes, the law would allow for substantial integration, he contended.

Because school districts in Washington are created by the state, he said, they are subject to state man-dates. The legislature, he said, "is a super school board."

Mr. Eikenberry admitted, under questioning by Associate Justice Thurgood Marshall, that Initiative 350 was enacted largely in reaction to Seattle's desegregation efforts. But, he added, "It is important to distinguish between discriminatory intent and ..."

"There are different kinds of discriminatory intent?" Justice Marshall broke in. "Some are good and some are bad?" When Chief Justice Burger noted that the Court has never said that any particular racial mix is required by the Constitution, Justice Marshall replied, "Is there any law that says Seattle can't do that?"

In an impromptu news conference after the oral arguments were presented to the Court, Mr. Eikenberry said that Initiative 350 "is only race-conscious in that the Seattle [desegregation] plan is race-conscious."

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