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AGO 1965 No. 55 - December 09, 1965
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John J. O'Connell | 1957-1968 | Attorney General of Washington


DISTRICTS ‑- SCHOOLS ‑- BOARD OF DIRECTORS ‑- VOLUNTARY STUDENT TRANSFER POLICY TO ALLEVIATE EXISTING RACIAL IMBALANCE ‑- CONSTITUTIONALITY OF POLICY ‑- STATE REIMBURSEMENT FOR TRANSPORTATION OF STUDENTS.

(1) The voluntary student transfer program which has been initiated by the Seattle School District No. 1 to alleviate existing racial imbalance in certain of its school facilities is constitutionally defensible.        

(2) Same:  A school district operating a voluntary student transfer program designed to alleviate existing racial imbalance in certain of its school facilities may obtain reimbursement from the state in accordance with state law for costs incurred in providing transportation to transfer students upon approval by the state superintendent of public instruction of the particular transportation plan even though it does not provide similar transportation to its general student population.

                                                              - - - - - - - - - - - - -

                                                                December 9, 1965

Honorable Charles O. Carroll
Prosecuting Attorney
King County Court House
Seattle, Washington

                                                                                                                Cite as:  AGO 65-66 No. 55

Dear Sir:

            By letter previously acknowledged you have requested our opinion on the constitutionality of a certain voluntary student transfer program which has been instituted by Seattle School District No. 1 in order to alleviate existing racial imbalance in certain of its school facilities.  In addition you have asked whether, in the event we determine the transfer program to be constitutional, the school district may obtain state reimbursement in regard to costs incurred in providing transportation to students transferring under the program even though it does not provide similar transportation to its general student population.

            We believe the transfer program, as hereinafter outlined, is constitutionally defensible.  We answer your second question, relative to state reimbursement for transportation costs, in the manner set forth in our analysis.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            Preliminarily, we may note that Seattle School District No. 1, like many other urban school districts in the state, operates its schools according to a local or neighborhood school plan under which students are generally required to attend the particular school located in their own attendance zone.  We may also note that the city of Seattle, like most large cities, has certain residential areas in which people of various national or racial origins have established their homes and constitute a substantial majority of the population.

            As a consequence of the interrelationship between these two factors, the public schools located in certain Seattle neighborhoods ‑ reflecting the racial make‑up of the particular area ‑ are also racially imbalanced and thereby to a greater or lesser degree present a phenomenon commonly referred to as "de facto segregation."  Accordingly, we are informed, in an attempt to alleviate this unintentional and undesirable1/ result of adherence to its basic neighborhood school policy, the Seattle school board has adopted a policy rule providing in pertinent part as follows:

            "3. Any student may transfer to a school outside of his attendance area if the transfer will reduce the racial imbalance in the school he leaves and in the school to which he goes, and if the school to which he wishes to transfer has room for additional students."

            Question (1):

            Your first question relates solely to the constitutionality of this policy.  In an office memorandum accompanying your request the actual operation of the resulting program is  [[Orig. Op. Page 3]] described as follows:

            "At the secondary school level, the district has designated three schools, Meany Junior High School, Washington Junior High School, and Garfield High School as 'leaving' schools, and the other secondary schools as 'receiving' schools.  Under the integration program, Negro students may transfer from a 'leaving' school to a 'receiving' school upon request, and, conversely, Caucasian students may transfer from a 'receiving' school to a 'leaving' school upon request.  However, the program does not apply vice versa.  Under this policy, a transfer will be allowed one student which will be denied another solely because of his race."

            Because of this feature it has been suggested that a question exists as to the constitutionality of the program, in view of the general statement of principle expressed by the United States Supreme Court in Goss v. Board of Education, 373 U.S. 683, 83 S.Ct. 1405 (1963), as follows:

            "Classifications based on race for purposes of transfers between public schools, as here, violate the Equal Protection Clause of the Fourteenth Amendment. . . ."

            Most certainly this broadly stated principle ‑ were it made without qualification relating to the purpose intended to be served by the racial classification ‑ would support a conclusion adverse to the constitutionality of the Seattle school district's voluntary transfer policy as above described.  However, as will subsequently be demonstrated in a detailed examination of theGoss case, this result need not follow where the racial classification is designed ‑ and in fact tends ‑ to reduce rather than to perpetuate racially segregated school facilities.

            Before further analyzing and resolving this constitutional issue it seems appropriate to review briefly certain basic legal propositions governing the lawful promulgation of policy rules or regulations by boards of school district directors.  First, it is fundamental that school districts exercise delegated authority.  In other words, their powers  [[Orig. Op. Page 4]] are those which are granted expressly or impliedly by the legislature.  Seattle High School v. Sharples, 159 Wash. 424, 293 Pac. 994 (1930);Juntila v. Everett School Dist. No. 24, 178 Wash. 637, 35 P.2d 78 (1934); AGO 59-60 No. 105 [[to Pat Nicholson, State Representative on March 10, 1960]], copy enclosed.

            However, research reveals that school district boards of directors in our state have been granted broad statutory authority to adopt such rules and regulations as they deem proper for the government of the schools under their charge.  See RCW 28.58.1102/ (applicable to all school districts) and RCW 28.62.180 (4)3/ (applicable to first class school districts).  The extent of this rule‑making power has been discussed in previous opinions of this office, including AGO 59-60 No. 62 [[to Lloyd Andrews, State Superintendent of Public Instruction on August 24, 1959]](copy enclosed) and AGO 59-60 No. 105,supra.  The power is extremely extensive.  In the words of our state supreme court in Wayland v. Hughes, 43 Wash. 441, 449, 86 Pac. 642 (1906),

            ". . . It would be difficult to confer a broader discretionary power than that conferred by these sections. . . ."

             [[Orig. Op. Page 5]]

            A second rule which is pertinent is the rule that in the exercise of its powers a governmental body must act so as to reasonably tend to correct some evil in which the governmental body has an interest.  State v. Sears, 4 Wn.2d 200, 103 P.2d 337 (1940).

            On this point, we take it to be clear that racial segregation in public education is an evil with which a school district has a legitimate concern.4/   Such segregation in all its forms is a major social problem of our times.  As for the question of whether the Seattle school board's present plan reasonably tends to correct this evil, it appears manifest that the program's operation works to reduce the racial imbalance which results from unqualified adherence to the neighborhood school plan.  While there may be disagreement among some as to whether this method is the most effective or wisest way to correct racial imbalance, the wisdom of such action is not for us to question.  It is enough to say that the school board's plan tends to correct in a reasonably effective way an evil which can only be corrected by some positive action.  Clark v. Dwyer, 56 Wn.2d 425, 353 P.2d 941 (1960).

            There remains, then, to be considered only the crucial question you have raised ‑ namely, whetherany governmental classification based upon race isper se unconstitutional regardless of its purpose.

            The constitutional provisions which are pertinent to this question are the equal protection clause of Amendment 14 to the United States Constitution5/ together with Article I, § 12 of the Washington Constitution.6/   Notably, these two constitutional provisions have been construed by our state supreme  [[Orig. Op. Page 6]] court to mean essentially the same thing.  As stated in The Texas Co. v. Cohn, 8 Wn.2d 360, 374, 112 P.2d 522 (1941):

            ". . . this court regards the equal privileges and immunities provision of Art. I, § 12, of the state constitution and the equal protection clause of the fourteenth amendment to the constitution of the United States as substantially identical."

            See, also,Price v. Evergreen Cemetery Co., 57 Wn.2d 352, 357 P.2d 702 (1960).  Regrettably, neither of these cases (nor any other decisions of our state court) offers much assistance in determining the validity of racial classification.7/   Therefore, we must look to federal court decisions and decisions of other state courts in order to resolve the problem.

            As a starting point, let us now examine in detail the United States Supreme Court case ofGoss v. Board of Education, supra.  It was in this case that the Court made the general observation about racial classifications which is quoted earlier in this opinion.  Before it was a desegregation plan which the school board of Knoxville, Tennessee, had developed in response to a lower federal court order issued following the court's historical 1954 decision in the case of Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686 (1954).  The plan, while eliminating separate school facilities for Negro and white children, nevertheless allowed any student to transfer from a school where his race was in theminority to one where his race was in the majority.  Movement in the other direction was not permitted except for "good cause."

             [[Orig. Op. Page 7]]

            The supreme court described the operation and effect of the transfer provision as follows (373 U.S. 683 at 686-7):

            "It is readily apparent that the transfer system proposed lends itself to perpetuation of segregation.  Indeed, the provisions can work only toward that end.  While transfers are available to those who choose to attend school where their race is in the majority, there is no provision whereby a student might transfer upon request to a school in which his race is in a minority, unless he qualifies for a 'good cause' transfer.  As the Superintendent of Davidson County's schools agreed, the effect of the racial transfer plan was 'to permit a child [or his parents] to choose segregation outside of his zone but not to choose integration outside of his zone.'  Here the right of transfer, which operates solely on the basis of a racial classification, is a one‑way ticket leading to but one destination, i.e., the majority race of the transferee and continued segregation. . . ."

            Thereupon the court declared the plan to be unconstitutional, stating:

            "Classifications based on race for purposes of transfers between public schools, as here, violate the Equal Protection Clause of the Fourteenth Amendment.  As the Court said inSteele v. Louisville & Nashville R. Co., 323 U.S. 192, 203 (1944), racial classifications are 'obviously irrelevant and invidious.'  The cases of this Court reflect a variety of instances in which racial classifications have been held to be invalid, e.g., public parks and playgrounds, Watson v. City of Memphis, ante, p. 526 (1963); trespass convictions, where local segregation ordinances pre‑empt private choice,Peterson v. City of Greenville, ante, p. 244 (1963); seating in courtrooms,Johnson v. Virginia, ante, p. 61 (1963); restaurants in public buildings,Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961); bus terminals,Boynton v. Virginia, 364 U.S. 454 (1960); public schools,Brown v. Board of Education, supra; railroad dining-car [[diningcar]]facilities, Henderson v.  [[Orig. Op. Page 8]] United States, 339 U.S. 816 (1950); State enforcement of restrictive covenants based on race, Shelley v. Kraemer, 334 U.S. 1 (1948); labor unions acting as statutory representatives of a craft, Steele v. Louisville & Nashville R. Co., supra; voting,Smith v. Allwright, 321 U.S. 649 (1944); and juries,Strauder v. West Virginia, 100 U.S. 303 (1879).  The recognition of race as an absolute criterion for granting transfers which operate only in the direction of schools in which the transferee's race is in the majority is no less unconstitutional than its use for original admission or subsequent assignment to public schools.  SeeBoson v. Rippy, 285 F.2d 43 (C.A. 5th Cir.)."  (Emphasis supplied.)

            The opening sentence of this last statement, it will be noted, contains thegeneral observation relative to racial classifications which may be said to suggest a question as to the constitutionality of the present voluntary transfer program of Seattle School District No. 1.  However, the concluding sentence of this same statement, which we have underscored, constitutes the true holding of the case.  That this is so seems clear from the statement appearing in the very next paragraph of the supreme court opinion, reading, in pertinent part, as follows (373 U.S. 683 at 688):

            ". . . Not only is race the factor upon which the transfer plans operate, but also the plans lack a provision whereby a student might with equal facility transfer from a segregated to a desegregated school.  The obvious one‑way operation of these two factors in combination underscores the purely racial character and purpose of the transfer provisions.  We hold that the transfer planspromote discrimination and are therefore invalid."  (Emphasis supplied.)

            Simply stated, we read the supreme court's decision in the Goss case to mean that a racially based student transfer plan is unconstitutional where it is evidently designed to promote or perpetuate a racial imbalance in public schools.  We do not regard the decision as in any way being determinative of the converse situation; i.e., a racially based transfer program such as that you have placed before us which is designed to alleviate racial imbalance by permitting a student to  [[Orig. Op. Page 9]] transfer from a school where his race is in the majority to a school where his race is in theminority.8/

             A question not yet conclusively settled, in the area of school desegregation, is whether the constitution imposes on public school boards an affirmative duty to eliminate de facto segregation (existing in consequence of adherence to the neighborhood school concept) ‑ as distinguished fromde jure segregation which was judicially declared unconstitutional inBrown v. Board of Education, supra.  CompareBarksdale v. Springfield School Committee, 237 F.Supp. 543, modified in 348 F.2d 261 (1965);Blocker v. Board of Education, 226 F.Supp. 208 (1964); andJackson v. Pasadena City School District, 31 Cal.Rptr. 606, 382 P.2d 878 (1963), withBell v. School Dist. of Gary, Indiana, 213 F.Supp. 819 (1963), affirmed 324 F.2d 209 (1963), cert. den. 377 U.S. 924 (1964);Craggett v. Board of Education, 234 F.Supp. 381 (1964), affirmed 338 F.2d 941 (1964); andDowns v. Board of Education, 336 F.2d 988 (1964).  Much seems to depend in these cases upon the presence or absence of a provable scheme to maintain or perpetuate racial segregation through adherence to a neighborhood school policy ‑ i.e., a sort of "racial gerrymandering."

            However, there appears to be unanimity on the point that a school board ispermitted by the constitution to act in this area ‑ provided that it does not impair the constitutional rights of the non-Negro majority in the process.  See,  [[Orig. Op. Page 10]] Fuller v. Volk, 230 F.Supp. 25 (1964);Taylor v. Board of Education of New Rochelle, 221 F.Supp. 275 (1963);Morean v. Board of Education of Montclair, 42 N.J. 237, 200 A.2d 97 (1964);Balaban v. Rubin, 250 N.Y.S. 2d 281, 199 N.E. 2d 375 (1964), cert. den. 379 U.S. 881; and Strippoli v. Bickal, 250 N.Y.S. 2d 969 (1964).

            Significantly, from an analytical standpoint, each of these last cited cases differs from the earlier cited school desegregation cases, includingBrown v. Board of Education, supra, and Goss v. Board of Education, supra, in one highly important respect.  Whereas such cases asBrown andGoss were brought by representatives of the Negro minority to force desegregation of schools, these latter cases were all commenced by white persons who were seeking to prevent use of various voluntarily initiated school board plans designed to alleviate racial imbalance among public schools of a particular area.

            InFuller v. Volk, supra, the Englewood, New Jersey, school board had formulated a plan to racially balance its elementary schools through a somewhat complex system of transfers ‑-together with the creation of a so-called "central school" for all sixth-grade pupils in the city.  White plaintiffs complained that the plan was unconstitutional because its transfer provisions and realignment of attendance areas were all predicated on a racial basis.  However, the court rejected this contention and upheld the plan.  In thus disposing of the matter the court first noted the important analytical distinction (described above) between action by Negroes to compel desegregation and action by whites to impede it.  After citing several prior decisions in cases of the former type, the court said (230 F.Supp. 25 at 33):

            "In each of the above cited cases involving this issue of the constitutionality of de facto segregation, Negro plaintiffs sought to compel local boards of education to take affirmative action to reduce or eliminate de facto segregation in the public schools.  Here, the Englewood Board of Education has already acted, and white plaintiffs are now seeking to have that action set aside.  Thus, under the particular facts of this case, the issue before this Court is not whether a local board of education must or is constitutionally required to act, but rather whether a board may or is not constitutionally prohibited from acting."

             [[Orig. Op. Page 11]]

            Thereupon the court continued as follows:

            "Since the summary judgment motion was argued, both the Supreme Court of New Jersey and the Court of Appeals of New York have handed down decisions in cases that have quite similar factual situations to the case at bar.

            "In Morean v. Board of Education of Montclair, 42 N.J. 237, 200 A.2d 97, the New Jersey Supreme Court held that, in formulating a plan which provided for closing down one school and transferring its students to other schools in the school district, a local board of education could take racial factors into consideration, where the board's moving purpose was in furtherance of the constitutional mandate against segregated schools and where all pupils were treated in an equal and reasonable manner.  In that case, a number of white pupils attending the Montclair schools alleged that they had been discriminated against, since the pupils in the closed junior high school were given a choice as to which of the three other junior high schools they could attend.  The white pupils claimed that the Board of Education was applying a double standard of pupil assignment, since they were required to attend their neighborhood schools while the pupils from the closed school, which had a Negro population of approximately 90%, were permitted to attend schools outside their neighborhood.  The white students argued that this double standard of pupil assignment was racially motivated, with the object of bringing about racial balance in the junior high schools in Montclair, and therefore was discriminatory and in violation of the equal protection clause of the Fourteenth Amendment.

            "In Balaban v. Rubin, 14 N.Y. 2d 193, 250 N.Y.S. 2d 281, 199 N.E. 2d 375, the Court of Appeals of New York held that a local board  [[Orig. Op. Page 12]] of education could take racial factors into consideration in establishing school attendance zones, where the plan adopted excluded no one from any school and had no tendency to foster or produce racial segregation.  In that case, a number of white school children in Brooklyn claimed that they were being discriminated against, by reason of their inclusion within the school attendance area of a newly-established junior high school for the purpose of bringing about a racial balance in that school.

            "This Court is in agreement with the principle enunciated in the foregoing state court decisions that a local board of education is not constitutionally prohibited from taking race into account in drawing or redrawing school attendance lines for the purpose of reducing or eliminating de facto segregation in its public schools."

            InMorean v. Board of Education of Montclair, supra, (discussed in the excerpt fromFuller v. Volk, last-quoted above), the New Jersey Supreme Court expressed its view of the matter most lucidly, as follows (200 A.2d 97 at 99):

            "Before us the petitioners did not attack the Commissioner's determination that the Board did not act arbitrarily or unreasonably or exceed the discretionary authority vested in it under our school laws.  Indeed they raise no questions of state law but confine themselves to the single contention that 'the double standard of pupil assignment practiced by Montclair in its junior high schools was racially motivated, with the object of controlling the racial balance of pupils, and therefore violates the equal protection guaranty of the Fourteenth Amendment of the United States Constitution.'  They cite no holdings which furnish even remote support but rely on broad expressions which, in context, were designed to reinforce the recognized principle that state discriminations against Negroes deprive them of the equal protection of the laws.  Thus Justice Harlan's famous remark  [[Orig. Op. Page 13]] in Plessy v. Ferguson, 163 U.S. 537, 559, 16 S.Ct. 1138, 41 L.Ed. 256, 263 (1896), about the Constitution's being color blind was made in the course of his attack on the then holding that separation of the races in railroad transportation did not offend the Constitution.  And Justice Clark's recent statement in Goss v. Board of Education, 373 U.S. 683, 83 S.Ct. 1405, 10 L.Ed. 2d 632 (1963), that race classifications for purposes of transfers between public schools, as there, are unconstitutional was made in a case where a transfer plan was stricken as one which was intended to and would 'inevitably lead toward segregation.'  Here, Montclair's plan was intended to and would inevitably lead toward integration rather than segregation; furthermore it was only an interim plan, pending the anticipated day when the existing junior high schools would be replaced by a single school designed to advance the educational interests of the town while achieving total integration at the junior high school level."  (Emphasis supplied.)

            And further:

            "The Montclair Board's obligation was to maintain a sound educational system by the furnishment of suitable school facilities and equal educational opportunities.  It could not, consistently with either sound legal principles or with sound educational practices, maintain an official policy of segregation with its inherent inequalities of educational opportunities and its withholding of the democratic and educational advantages of heterogeneous student populations.  See Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955); N.J. Const. Art. I, par 5; N.J.S.A. 18:14-2, 18:25-4, 18:25-5.  Nor need it close its eyes to racial imbalance in its schools which, though fortuitous in origin, presents much the same disadvantages as are presented by segregated schools.  See Jackson v. Pasadena City School Dist., 59 Cal.2d 876,  [[Orig. Op. Page 14]] 881, 31 Cal.Rptr. 606, 382 P.2d 878, 882 (Sup. Ct. 1963); Blocker v. Board of Education, 226 F.Supp. 208, 223 (E.D. N.Y. 1964); cf. Branche v. Board of Education, 204 F.Supp. 150, 153 (E.D. N.Y. 1962); Balaban v. Rubin, App. Div., 248 N.Y.S. 2d 574 (App. Div. 1964); but cf. Bell v. School City of Gary, Indiana, 324 F.2d 209, 213 (7 Cir. 1963); Evans v. Buchanan, 207 F.Supp. 820, 823 (D. Del. 1962)."

            Accord:  Schults v. Board of Education of the Township of Teaneck, 86 N.J. Super. 29, 205 A.2d 762 (1964).

            Balaban v. Rubin, supra, is adequately described in Fuller v. Volk, supra, and need not be further examined in detail here.  Suffice it to say that the New York Court, both there and as well inStrippoli v. Bickal, supra, sanctioned the use of a racial classification basis for school attendance where the purpose of its use was to alleviate rather than to perpetuate racial imbalance among neighborhood schools.  Accord; as well,Taylor v. Board of Education, supra; and, most recently,Van Blerkom v. Donavan, 15 N.Y. 2d 399, 207 N.E. 2d 503 (1965).

            In addition to the foregoing, the California case of Jackson v. Pasadena City School District, 31 Cal. 606, 382 P.2d 878 (1963), a case brought by a Negro to compel his transfer from a predominately Negro school to a predominately white school, is significant for the reason that there the California Supreme Court expressed recognition of the possibility of a constitutionalright to obtain such a transfer as a means of escaping from a residentially segregated public school.  Cf.Booker v. Board of Education of Plainfield, N.J., 212 A.2d 1 (1964).  Following this decision the California Attorney General thereafter issued an opinion (42 Cal. Atty. Gen. Ops. 33, No. 63/101) ruling that:

            "The governing board of a school district may consider race as a factor in adopting a school attendance plan, if the purpose of considering the racial factor is to effect desegregation in the schools, . . ."

            In accordance with the reasoning of these several last-discussed authorities, it is therefore our opinion that the instant voluntary student transfer program which has been initiated by Seattle School District No. 1 to  [[Orig. Op. Page 15]]alleviate existing racial imbalance in certain of its school facilities is constitutionally defensible.

            Question (2):

            Your second question, relating to state reimbursement for transportation costs incurred in providing transportation for those students who would transfer under this plan, arises by reason of the fact that the Seattle school district does not transport its general student population.  Under the applicable rule of the state superintendent of public instruction which was in effect prior to August 26, 1965, this school district would, therefore, have been ineligible for transportation reimbursement payments inasmuch as the rule provided as follows:

            "If transportation is provided, it must be provided for all children of compulsory school age residing in the district and attending public school, and who reside in excess of two miles from the school house, or make payments in lieu thereof, to the family."

            However, on the above‑noted date this rule was altered to read, in part, as follows:

            "If transportation is provided, it must be provided for all children of compulsory school age residing in the district and attending public school, and who reside in excess of two miles from the school house, or make payments in lieu thereof, to the family:  Provided, That upon the application by any school district to the Superintendent of Public Instruction, the Superintendent may, if in the exercise of his discretion he deems such transportation to provide for improvement and equalization of educational opportunities, allow an exception to the above‑noted general rule.

            "A. Applications for an exception will only be considered under the following circumstances:

            "(1) Where the transportation appears necessary by reason of the condemnation or closure of a building by lawful  [[Orig. Op. Page 16]] aurthority [sic] [[authority]]; and

            "(2) Where the transportation appears necessary by reason of the total or partial destruction by any cause of a school building; and

            "(3)Where the transportation appears necessary to reduce the educational handicap caused by racial imbalance; and

            "(4) Where the transportation appears necessary by reason of the physical or mental condition of the student unable to attend the regular public school classes or by reason of the educational advantages available to exceptional students."  (Emphasis supplied.)

            Thus, the state superintendent has established an exception to the "transport-one‑transport-all" rule in recognition of situations where special problems may exist and, by proper classification, be solved.  Pursuant to the new rule, a school district may provide transportation to less than all students and still receive state reimbursement where, inter alia,

            ". . . the transportation appears necessary to reduce the educational handicap caused by racial imbalance; . . ."9/

             Of course, it must be understood that the payment of state reimbursement for transportation costs in a case such as this ‑ as in any case ‑ is governed as well by the provisions of state statute authorizing the distribution and apportionment of state funds for local school support.  See, chapter 154, Laws of 1965, Ex. Sess., and in particular §§ 5-9 thereof.

             [[Orig. Op. Page 17]]

            Furthermore, we must caution that approval for such transportation as well as approval of specific routes should first be obtained if state reimbursement is sought.  The remainder of the state superintendent's new rule so provides in the following language:

            ". . .

            "B. An application for such an exception shall be made by resolution of the board of directors upon forms to be provided by the State Superintendent of Public Instruction.

            "C. Such exception shall be valid from the date granted until the end of the current school year.  The granting of such an exception shall not be deemed an approval of transport routes.  Approval of transportation routes for said exceptions must be recommended by the County Transportation Commission and approved by the State Superintendent of Public Instruction."

            However, subject to these qualifications it is now clear that a school district operating a voluntary student transfer program designed to alleviate existing racial imbalance in certain of its school facilities may obtain reimbursement for costs incurred in providing transportation to transfer students even though it does not provide similar transportation to its general student population.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General

BRUCE COHOE
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/For authorities pointing out the harmful effects of racial imbalance in schools regardless of cause, see: McEntire, Davis, Residence and Race (1960); K. B. Clark, Prejudice and Your Child (1955); J. B. Conant, Shaping Educational Policy (1964); and Pinderhughes, Effects of Ethnic Group Concentration Upon Educational Process, Personality Formation and Mental Health, 56 J. Natl. Med. Assn. 407 (1964).

2/RCW 28.58.110 provides:

            "Any board of directors shall have power to make such bylaws for their own government, and the government of the common schools under their charge, as they deem expedient, not inconsistent with the provisions of this act, or the instructions of the superintendent of public instruction or the state board of education."

3/RCW 28.62.180 provides in material part:

            "Every board of directors of a school district of the first class shall, in addition to the general powers enumerated in chapter XVII (XV) of this title have the power:

            ". . .

            "(4) To adopt and enforce such rules and regulations as may be deemed essential to the well being of the schools, . . ."

4/See again, authorities cited in footnote 1, supra.

5/". . . No state shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws."

6/". . . No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations."

7/Price v. Evergreen Cemetery Co., supra, we might mention parenthetically, contained most of the elements present in the instant matter ‑ namely, a classification based on race but designed to correct rather than to perpetuate a social evil (discrimination in the sale of burial plots) ‑ and had it been decided on its merits would be of considerable value in resolving the present question.  Unfortunately, the case was not decided on its merits but rather was determined on technical grounds under Article II, § 19, of our state constitution.

8/Notably, the United States Supreme Court has never held that any and every classification of persons based upon race is, per se, unconstitutional.  It has simply indicated that since the central purpose of the 14th Amendment was to eliminate racial discrimination emanating from official sources in the states, such state action as penalizes or imposes a burden on a person solely because of his race is ‑per se ‑ "constitutionally suspect" (McLaughlin v. Florida, 379 U.S. 184, 13 L.Ed.2d 222, 85 S.Ct. 283 (1964)), and can only be sustained on the basis of some overriding purpose requiring the prohibition of specified conduct or activity when engaged in by persons of a certain race only.  See, also,Korematsu v. United States, 323 U.S. 214 (1944); Ex Parte Endo, 323 U.S. 283, 89 L.Ed. 243, 65 S.Ct. 208 (1944);Hirabayashi v. United States, 320 U.S. 81, 87 L.Ed. 1774, 63 S.Ct. 1375 (1943); and comment in 16 Hastings Law Rev. 430 (1965) [[16 Hast. L. J. 430]].

9/The constitutional validity of this classification for purposes of transportation of students, like the earlier discussed classification in relation to interneighborhood transfers, appears clearly sustainable by reason of the underlying objective ‑ namely, to facilitate a reduction in deleterious racial imbalance.  See, Taylor v. Board of Education of New Rochelle, 221 F. Supp. 275 (1963),supra, and Van Blerkom v. Donavan, 15 N.Y. 2d 399, 207 N.E. 2d 503 (1965), supra.

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