Seattle School District No. 1 v. The State of Washington , 633 F.2d 1338 ( 1980 )

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 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 Pas-co 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).

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

[although 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 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 this Court affirms the relevancy of the constitutional analysis applied in Hunter and Lee to this case, the guarantee of equal protection of laws will become a hollow shell. Lawmakers who seek to establish impermissible racial classifications will in the future be able to achieve, by artfully worded statutes like Initiative 350, constitutionally forbidden goals.

The racial classification embodied in the statute is invalid unless it is the least drastic means required to achieve a compelling state interest. McLaughlin v. Florida, 379 U.S. 184, 192-96, 85 S.Ct. 283, 288-90, 13 L.Ed.2d 222 (1964). See Hunter v. Erickson, 393 U.S. at 391-93, 89 S.Ct. at 560-61; Lee v. Nyquist, 318 F.Supp. at 720. We have no reason to dispute the District Court’s finding that the legislative purpose of Initiative 350 was to restore the Seattle School District’s traditional policy of assigning students to their neighborhood schools.⁵ However, while “[a] neighborhood school policy is not constitutionally suspect,” Diaz v. San Jose Unified School Dist., 612 F.2d 411, 415 (9th Cir. 1979), it is the locally elected school authorities who “are traditionally charged with broad power to formulate and implement educational policy.” Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971). Locally elected school boards even possess “broad discretionary powers” to prescribe a fixed proportion of racial mix in each school as an educational policy. Id.

In fact, the Supreme Court struck down a North Carolina statute that flatly prohibited the assignment of any public school student on account of race or for the purpose of creating a racial balance in the schools in North Carolina Bd. of Educ. v. Swann, 402 U.S. 43, 91 S.Ct. 1284, 28 L.Ed.2d 586 (1971).⁶ There, the Court reiterated that

as a matter of educational policy school authorities may well conclude that some kind of racial balance in the schools is desirable quite apart from any constitutional requirements.... [I]f a state-imposed limitation on a school authority’s discretion operates to inhibit or obstruct the operation of a unitary school system or impede the disestablishing of a dual school system, it must fall ....

Id. at 45, 91 S.Ct. at 1285 (emphasis added).

That the Seattle Plan was self-imposed and not required as a remedial measure by a federal district court⁷ does not alter or enhance the significance of Washington State’s interest in mandating a state-wide neighborhood school policy.⁸ As the three-judge panel observed in Lee v. Nyquist, a finding of de jure segregation is irrelevant when majoritarian political processes are used to frustrate minority participation:

The statute places burdens on the implementation of educational policies designed to deal with race on the local level.

. .. The ... Legislature has acted to make it more difficult for racial minorities to achieve goals that are in their interest.

The statute thus operates to disadvantage a minority, a racial minority, in the political process. There can be no sufficient justification supporting the necessity of such a course of action.

318 F.Supp. at 719-20. See also Flores v. Pierce, 617 F.2d 1386, 1391 (9th Cir. 1980).

The State’s argument that Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 413-14, 97 S.Ct. 2766, 2772, 53 L.Ed.2d 851 (1977) (Dayton I), permits official rescission of previously adopted desegregation measures as long as there was no antecedent constitutional duty to remedy de jure segregation ignores the crucial fact that a different governmental body-the state-wide electorate-rescinded a policy voluntarily enacted by locally elected school boards already subject to local political control. Initiative 350, unlike the situation in Dayton I, results in the political process being skewed at the expense of local representative bodies and their constituencies. See note 8, supra.

The opponents of desegregation who reside in the Seattle School District resorted to the state-wide initiative mechanism only after unsuccessful attempts to recall four elected school board members in 1971-72, see Finding of Fact No. 6.3, 473 F.Supp. at 1006, and to block the Seattle Plan in the courts, see Findings of Fact Nos. 7.1, 7.2, and 7.11, 473 F.Supp. at 1007-08. The effect of Initiative 350 is to restructure the state’s political and administrative process so as to remove from local school boards their existing authority, and in large part their capability,⁹ to enact programs designed to desegregate the schools. Initiative 350 effectively disenfranchises the voters of the local school districts with respect to local educational matters. The interest of the State of Washington in mandating a state-wide policy of neighborhood schools must, in these circumstances, fall to the paramount interest of the locally elected school boards and the community they represent in promulgating their own educational policy. Therefore, we hold that Initiative 350, which attempts to wrest from local control the formulation and implementation of educational and desegregation policies, is not supported by any compelling state interest; consequently, the statute is unconstitutional as a violation of the equal protection clause of the Fourteenth Amendment.¹⁰ See Hunter v. Erickson, 393 U.S. at 393, 89 S.Ct. at 561 (“the State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person’s vote or give any group a smaller representation than another of comparable size.”); Lee v. Nyquist, 318 F.Supp. at 720.

The appellants contend that Brown v. Califano, 627 F.2d 1221 (D.C.Cir.1980) should control the outcome here. We disagree. In Brown, the D.C. Circuit upheld the constitutionality of a series of amendments to congressional appropriations bills which prevent the Department of Health, Education, and Welfare from withholding federal funds from school districts which subscribe to a neighborhood school student assignment policy. The Eagleton-Biden amendment, typical of the challenged provisions, provides that

[n]one of the funds contained in this Act shall be used to require, directly or indirectly, the transportation of any student to a school other than the school which is nearest the student’s home [except for a student requiring special education], ... in order to comply with Title VI of the Civil Rights Act of 1964.

Quoted in Brown v. Califano, 627 F.2d at 1226 n.26.

Brown is distinguishable in a number of fundamental respects. Although the statutory language of Initiative 350 and the Ea-gleton-Biden amendment are superficially similar, the operative and intended effects of the statutes are vastly different. The Title VI amendments were merely an internal administrative housekeeping measure designed to limit HEW’s ability to order mandatory busing. The legislative history indicates that Congress simply intended to prevent the HEW bureaucracy from acting solely on its own authority in administrative proceedings to coerce local school districts into adopting busing plans. “An explicit, major purpose of the amendments was to take ‘HEW out of the busing business.’ In other words, Congress wanted to ensure that mandatory busing orders derive either from local school officials or federal courts.” Id. at 1231, quoting 122 Cong.Ree. 21198 (1976) (remarks of Sen. Biden) (footnotes omitted). Judge Bazelon noted that:

the instant case does not involve a flat prohibition against involuntary busing. The amendments challenged here merely restrict one federal agency’s ability to induce busing as a condition of receiving federal funds. Local school officials still may voluntarily employ transportation to desegregate .... [A]ll reasonable desegregation methods remain available to school officials and to courts.

627 F.2d at 1229 (emphasis added) (footnote omitted).

Here, Initiative 350 flatly prohibits local officials from busing beyond neighborhood schools if the purpose is to desegregate the schools. Busing beyond neighborhood schools for all other significant reasons is permitted. This is significantly different from the amendments, which the Brown court concluded did not “make [a] classification along impermissible [racial] lines.” Id. at 1230. Because Initiative 350 does preclude local school authorities from voluntarily busing to achieve desegregation, and does so via a statute that embodies a burdensome racial classification, Brown v. Cali-fano is inapposite.

Therefore, for the reasons stated herein, the judgment of the District Court that Initiative 350 is unconstitutional is affirmed.

II. Attorney’s Fees-The Cross-Appeal

After the decision on the merits, the ap-pellees requested attorney’s fees as authorized by two statutes. The Civil Rights Attorney’s Fees Award Act of 1976 provides, in pertinent part:

In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title ... or in any civil action or proceeding, by or on behalf of the United States of America, to enforce, or charging a violation of . . . title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.

42 U.S.C. § 1988 (1980) (emphasis added). Section 718 of the Emergency School Aid Act also provides that:

Upon the entry of a final order by a court of the United States against a local educational agency, a State (or any agency thereof), or the United States (or any agency thereof), for failure to comply with any provision of this subchapter or for discrimination on the basis of race, color, or national origin in violation of title VI of the Civil Rights Act of 1964, or the fourteenth amendment to the Constitution of the United States as they pertain to elementary and secondary education, the court, in its discretion, upon a finding that the proceedings were necessary to bring about compliance, may allow the prevailing party, other than the United States, a reasonable attorney’s fees as part of the costs.

20 U.S.C. § 3205 (1980) (emphasis added). The District Court denied the motions, and appellees cross-appealed for review of that judgment.

The general attorney’s fees statute, § 1988, and the statute dealing specifically with school desegregation cases, § 3205, share the same language and are to be construed together. Wheeler v. Durham City Bd. of Educ., 585 F.2d 618, 621-22 (4th Cir. 1978); see Northcross v. Memphis Bd. of Educ., 412 U.S. 427, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973) (per curiam). The Supreme Court has interpreted these statutes as requiring that “the successful plaintiff ‘should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.’ ” Northcross v. Memphis Bd. of Educ., 412 U.S. at 428, 93 S.Ct. at 2202, quoting Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). Our Court has examined two factors in determining if a case involves “special circumstances” which would make an award “unjust”: (1) whether allowing attorney’s fees in a particular case would further the congressional purpose in adopting the' Acts, and (2) the balance of equities. See Dennis v. Chang, 611 F.2d 1302 (9th Cir. 1980); Aho v. Clark, 608 F.2d 365 (9th Cir. 1979); Buxton v. Patel, 595 F.2d 1182 (9th Cir. 1979).

The congressional purpose in providing attorney’s fees in civil rights cases was to eliminate financial barriers to the vindication of constitutional rights and to stimulate voluntary compliance with the law. S.Rep.No.1011, 94th Cong., 2d Sess., reprinted in [1976] U.S.Code Cong. & Ad.News, p. 5908; H.R.Rep.No.1558, 94th Cong., 2d Sess. (1976).

The District Court concluded that an award of attorney’s fees in this case was not necessary because the school districts are publicly-funded entities. There is nothing in the language or legislative history of the statutes, however, indicating a congressional intent to limit attorney’s fees to private parties. As long as a publicly-funded organization advances important constitutional values, it is eligible for fees under the statutes. Dennis v. Chang, 611 F.2d at 1304-07; Oldham v. Ehrlich, 617 F.2d 163, 168-69 (8th Cir. 1980); Palmigiano v. Garrahy, 616 F.2d 598, 600-03 (1st Cir. 1980). See Holley v. Lavine, 605 F.2d 638 (2d Cir. 1979), cert. denied sub nom. Blum v. Holley, 446 U.S. 913, 100 S.Ct. 1843, 64 L.Ed.2d 266 (1980);. Weisenberg v. Huecker, 593 F.2d 49 (6th Cir.), cert. denied, 444 U.S. 880, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979); Lund v. Affleck, 587 F.2d 75 (1st Cir. 1978) (allowing awards to publicly-funded legal services corporations).

The State argues that even if a publicly-funded entity is eligible to receive legal fees under the statutes, an award would be inappropriate in this case because the “special circumstance” of an absence of bad faith on the part of the state officials makes an award in this case “unjust.” While absence of bad motives precludes an award against named defendants in their individual capacities, Hutto v. Finney, 437 U.S. 678, 693-700, 98 S.Ct. 2565, 2574-78, 57 L.Ed.2d 522 (1978), it does not bar an award against the state or named individuals in their official capacities. Williams v. Alioto, 625 F.2d 845 (9th Cir. 1980); Universal Amusement Co. v. Hofheinz, 616 F.2d 202, 204 n.1 (5th Cir. 1980); Internal Oceanic Enterprises, Inc. v. Menton, 614 F.2d 502, 504 (5th Cir. 1980); Johnson v. State of Mississippi, 606 F.2d 635, 637 (5th Cir. 1979); Haycraft v. Hollenbach, 606 F.2d 128, 132 (6th Cir. 1979).

After full consideration of the facts in this case, we conclude that the District Court abused its discretion in denying the school districts’ motion for attorney’s fees. The judgment on this issue is reversed and the cause remanded for the purpose of determining the amount of the award.

The District Court also denied intervening appellees’ separate motion for attorney’s fees, not, as the State suggests, because intervenors could not be included in the statutory category of “prevailing parties,” but rather because they played a de minimis role in the trial on the merits. After examining the record, we conclude that the District Court was within its discretion in denying intervenors’ motion inasmuch as the request was conditioned on their level of participation in the Phase I litigation. Intervenors, however, also necessarily devoted substantial time and effort to preparation for trial on the Phase II issues. This pre-trial preparation was essential because it was apparent from the onset of this case that the school districts would not be in a position to argue they were operating dual school systems if Initiative 350 were found to be constitutional. The burden of litigating the Phase II issues would have been the sole responsibility of the intervenors.

An award of attorney’s fees for time spent on a particular issue is not precluded merely because developments in the course of the litigation make it unnecessary to consider that specific question. “Nothing in the language of § 1988 conditions the District Court’s power to award fees on full litigation of the issues .. . . ” Maher v. Gagne, — U.S. —, —, 100 S.Ct. 2570, 2575, 65 L.Ed.2d 653 (1980). Accord, Williams v. Alioto, 625 F.2d at 848. The legislative policy of encouraging constitutional litigation, which led Congress to specify that an award is permissible for an issue which is not fully litigated if constitutional rights are vindicated through the mechanism of a consent decree or other preliminary relief, S.Kep.No.1011 at 5, [1976] U.S. Code Cong. & Ad.News at 5912-13, also supports an award for expenses incurred in the preparation of issues which were not reached if the same constitutional values are advanced through resolution of another claim. See Northcross v. Board of Educ. of Memphis, 611 F.2d 624, 635-36 (6th Cir. 1979), cert. denied, — U.S. —, 100 S.Ct. 2999, 64 L.Ed.2d 862 (1980); Brown v. Bathke, 588 F.2d 634, 637-38 (8th Cir. 1978); Busche v. Burkee, 483 F.Supp. 1326, 1328 (E.D.Wis.1980). In the analogous situation in which resolution of a non-fee claim makes consideration of a fee claim unnecessary, the court in its discretion may allow an award. Maher v. Gagne, 100 S.Ct. at 2576 & n.15; Oldham v. Ehrlich, 617 F.2d at 168; Kimbrough v. Arkansas Activities Ass’n, 574 F.2d 423, 426-27 (8th Cir. 1978).

School desegregation cases invariably involve multiple parties and multiple issues. It is usually impossible to determine in advance of trial which issues will be reached or which parties will play pivotal roles in the course of the litigation. To retrospectively deny attorney’s fees because an issue is not considered or because a party’s participation proves unnecessary would have the effect of discouraging the intervention of what in future cases may be essential parties. “The complex nature of school desegregation cases requires that attorneys’ fees be approached with flexibility if Congress’ goal in enacting these statutes is to be realized.” United States v. Waterbury Bd. of Educ., 605 F.2d 573, 576 (2d Cir. 1979).

In this case there was a substantial likelihood that Initiative 350 would be held constitutional. In that event the considerable burden of litigating whether the school districts involved were unconstitutionally segregated would have fallen squarely on the intervenors. Because an award of attorney’s fees in this case is essential to effectuate the congressional purpose of encouraging future constitutional litigation in similar circumstances, we conclude that the District Court abused its discretion in denying intervenors’ attorney’s fees.

The judgment on this issue is reversed and upon remand, the District Court will determine the amount of the award. The award should include not only compensation for time spent on the Phase II issues, but at least some award for time spent monitoring the Phase I litigation. The intervenors could not have effectively litigated Phase II issues if they had not had at least some familiarity with the proceedings on Phase I issues.

Affirmed in part; reversed and remanded in part.

1 . The Council raises a threshold jurisdictional question, arguing that because the State has not threatened to enforce Initiative 350 against Pasco School District (“Pasco”), it does not have standing to challenge the statute under the Declaratory Judgment Act, 28 U.S.C. § 2201 (1979). We disagree. It is true that claims alleging the unconstitutionality of a statute are normally non-justiciable in the absence of immediate threatened prosecution. Poe v. Ullman, 367 U.S. 497, 501-09, 81 S.Ct. 1752, 1754-59, 6 L.Ed.2d 989 (1961). Nevertheless, if the circumstances of the dispute provide sufficient guarantees that a genuine case or controversy exists, a federal court may assume jurisdiction even in the absence of a direct threat of enforcement against the plaintiff. See Babbit v. United Farm Workers Nat’l Union, 442 U.S. 289, 297-305, 99 S.Ct. 2301, 2308-12, 60 L.Ed.2d 895 (1979); Carey v. Population Servs. Int'l, 431 U.S. 678, 682-84, 97 S.Ct. 2010, 2014-15, 52 L.Ed.2d 675 (1977); Regional Rail Reorganization Act Cases, 419 U.S. 102, 136-48, 95 S.Ct. 335, 354-61, 42 L.Ed.2d 320 (1974); Steffel v. Thompson, 415 U.S. 452, 458-60, 94 S.Ct. 1209, 1215-16, 39 L.Ed.2d 505 (1974); Lake Carriers’ Ass’n v. MacMuilan, 406 U.S. 498, 504-08, 92 S.Ct. 1749, 1754-56, 32 L.Ed.2d 257 (1972); Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968).

In this case, four factors indicate that an actual case or controversy exists between Pas-co and the State despite the absence of a specific threat, as against Pasco, to enforce Initiative 350. First, this is a highly specific statute, clearly applicable to Pasco’s student assignment policies. See Doe v. Bolton, 410 U.S. 179 at 187-89, 93 S.Ct. 739 at 745 46, 35 L.Ed.2d 201; Crossen v. Breckenridge, 446 F.2d 833, 838 (6th Cir. 1971). Second, Initiative 350 is a recent statutory enactment and not a law which has lain moribund for years. See Poe v. Ullman, 367 U.S. at 501, 81 S.Ct. at 1754; Rincon Band of Mission Indians v. County of San Diego, 495 F.2d 1, 12 (9th Cir.), cert. denied, 419 U.S. 1008, 95 S.Ct. 328, 42 L.Ed.2d 283 (1974) (Browning, J., dissenting). Third, there have been immediate threats of enforcement against parties whose legal status under Initiative 350 is identical to that of Pasco, i. e., the Seattle and Tacoma School Districts. See Steffel v. Thompson, 415 U.S. at 459, 94 S.Ct. at 1215 (prosecution of plaintiffs companion); Carey v. Population Servs. Int’l, 431 U.S. at 684 n.3, 97 S.Ct. at 2015 n.3 (prosecution under predecessor statute). Fourth, because this is a civil rather than a criminal statute, it imposes an affirmative duty to comply. “[I]f appellees] are now under such an obligation, that in and of itself makes their attack on the validity of the law a live controversy, and not an attempt to obtain an advisory opinion,” Lake Carriers Ass’n v. MacMullan, 406 U.S. at 507, 92 S.Ct. at 1755 at least where there is an indication, as in this case, that the statute will be enforced in the future. Id. See also Independent Bankers Ass’n v. Heimann, 613 F.2d at 1164, 1167 (D.C.Cir. 1979); Southern Pac. Transp. Co. v. Redden, 458 F.Supp. 593, 599-60 (D.Or.1978).

2 . Judge Voorhees’ Finding of Fact No. 8.2 was that “Initiative 350 will remove from local school districts their existing authority under state law ... to assign students to other than their nearest or next nearest schools in order to improve racial balance.” 473 F.2d at 1010 (citing Citizens Against Mandatory Bussing v. Palmason, 80 Wash.2d 445, 495 P.2d 657 (1972) (en banc)). This finding is supported by the evidence and the conclusion is not clearly erroneous. Fed.R.Civ.P. 52(a).

3 . Initiative 350 provides in its entirety as follows:

Section 1. Notwithstanding any other provision of law, after the effective date of this act no school board, school district, educational service district board, educational service district, or county committee, nor the superintendent of public instruction, nor the state board of education, nor any of their respective employees, agents or delegates 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 within the school district of his or her residence and which offers the course of study pursued by such student, except in the following instances:

(1) If a student requires special education, care or guidance, he may be assigned and transported to the school offering courses and facilities for such special education, care or guidance;

(2) If there are health or safety hazards, either natural or man made, or physical barriers or obstacles, either natural or man made, between the student’s place of residence and the nearest or next nearest school; or

(3) If the school nearest or next nearest to his place of residence is unfit or inadequate because of overcrowding, unsafe conditions or lack of physical facilities.

Section 2. In every such instance where a student is assigned and transported to a school other than the one nearest his place of residence, he shall be assigned and transported to the next geographically nearest school with the necessary and applicable courses and facilities within the school district of his or her residence.

Section 3. For purposes of section 1 of this act, “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 within the school district of his or her residence and which offers the course of study pursued by such student” includes, but is not limited to, implementing, continuing, pursuing, maintaining ór operating any plan involving (1) the redefining of attendance zones; (2) feeder schools; (3) the reorganization of the grade structure of the schools; (4) the pairing of schools; (5) the merging of schools; (6) the clustering of schools; or (7) any other combination of grade restructuring, pairing, merging or clustering: PROVIDED, That nothing in this chapter shall limit the authority of any school district to close school facilities.

Section 4. For the purposes of section 1 of this act “special education, care or guidance” includes the education, care or guidance of students who are physically, mentally or emotionally handicapped.

Section 5. The prohibitions of this chapter shall not preclude the establishment of schools offering specialized or enriched educational programs which students may voluntarily choose to attend, or of any other voluntary option offered to students.

Section 6. This chapter shall not prevent any court of competent jurisdiction from adjudicating constitutional issues relating to the public schools.

Section 7. Sections 1 through 6 of this act are added to chapter 223, Laws of 1969 ex. sess. and shall constitute a new chapter in Title 28A RCW.

Section 8. If any provision of this act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected.

4 . Judge Voorhees’ Finding of Fact No. 8.3 was that “[e]xcept for racially-balancing purposes, Initiative 350 permits local school districts to assign students other than to their nearest or next nearest schools for most, if not all, of the major reasons for which students are at present assigned to schools other than their nearest or next nearest schools.” 473 F.Supp. aU1010.

That the statute does not contain an explicit racial classification is of no consequence if the law is not neutral. In Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979), the Supreme Court clearly indicated that “[ijf the [challenged statutory] classification itself, covert or overt, is not based upon gender, the second question is whether the adverse effect reflects invidious gender-based discrimination.” Id. at 274, 99 S.Ct. at 2293 (emphasis added). Because, as discussed above, Initiative 350 contains a covert racial classification, it is not a neutral law and the disparate impact analysis does not apply.

5 . Judge Voorhees’ Finding of Fact No. 7.28 was that “the Seattle School District has traditionally adhered to a policy of the assignment of children to their neighborhood schools.” 473 F.Supp. at 1009.

6 . The anti busing law, the Court said, was invalid because it “would inescapably operate to obstruct the remedies granted by the District Court” to eliminate the existing dual school system created by an unconstitutional background of de jure segregation. 402 U.S. at 45, 91 S.Ct. at 1285.

In Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974), the Supreme Court emphasized the importance of local control over education. Local autonomy and diversity are so important to public education, the Court held in Milliken, that judicial desegregation remedies could not exceed the geographical scope of the constitutional violation:

[T]he notion that school district lines may be casually ignored or treated as a mere administrative convenience is contrary to the history of public education in our country. No single tradition in public education is more deeply rooted than local control over the operation of schools; local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to quality of the educational process.... Thus, in San Antonio School District v. Rodriguez, 411 U.S. 1, 50, 93 S.Ct. 1278, 1305, 36 L.Ed.2d 16 (1973), we observed that local control over the educational process affords citizens an opportunity to participate in decisionmaking, permits the structuring of school programs to fit local needs, and encourages “experimentation, innovation, and a healthy competition for educational excellence.”

418 U.S. at 741 42, 94 S.Ct. at 3125 (citations omitted) (emphasis added). See also Wright v. Council of City of Emporia, 407 U.S. 451, 469, 92 S.Ct. 2196, 2206, 33 L.Ed.2d 51 (1972) (“Direct control over decisions vitally affecting the education of one’s children is a need that is strongly felt in our society .... ”); Brown v. Bd. of Educ., 349 U.S. 294, 299, 75 S.Ct. 753, 755, 99 L.Ed. 1083 (1955) (Brown 11) (school authorities “have the primary responsibility for elucidating, assessing, and solving” varied local school problems engendered by race); Martin v. Charlotte Mecklenburg Bd. of Educ., 626 F.2d 1165, 1167 (4th Cir. 1980); note 9 infra.

7 . The District Court did not reach the question of whether the school districts were under a constitutional duty to desegregate. The District Court bifurcated the litigation, and the intervenors’ claims that the school districts operate unconstitutional dual school systems were not addressed in Stage I.

8 . Had a successor school board to the one that adopted the Seattle Plan -instead of the state electorate as a whole-attempted to repeal or rescind the self imposed student assignment plan, we would be faced with a quite different issue. In Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 413 14, 97 S.Ct. 2766, 2772, 53 L.Ed.2d 851 (1977) (Dayton I), the Court discussed a school board’s rescission of a previously adopted resolution which it was under no constitutional duty to promulgate-affecting the assignment of pupils:

The Board had not acted to undo operative regulations affecting the assignment of pupils or other aspects of the management of school affairs, cf. Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967), but simply repudiated a resolution of a predecessor Board stating that it recognized its own fault in not taking affirmative action at an earlier date. We agree with the Court of Appeals’ treatment of this action, wherein that court said: The question of whether a rescission of previous Board action is in and of itself a violation of appellants’ constitutional rights is inextricably bound up with the question of whether the Board was under a constitution-

al duty to take the action it initially took.... If the Board was not under such a duty, then the rescission of the initial action in and of itself cannot be a constitutional violation.

(Quoting Brinkman v. Gilligan, 503 F.2d 684, 697 (6th Cir. 1974) (citations omitted)). Accord, Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 531 n.5, 99 S.Ct. 2971, 2976 n.5, 61 L.Ed.2d 720 (1979) (Dayton II). Under this standard, the constitutionality of Initiative 350 would hinge on the Stage II determination of whether the Seattle School District has maintained a dual system or practiced de jure segregation.

9 . Judge Voorhees’ Finding of Fact No. 8.5 was that “[i]t would be impossible to effect a racial balance of Seattle schools without resort to some or all of the tools or methods prohibited by Section 3 of Initiative 350”, 473 F.Supp. at 1010. This holding is not clearly erroneous. Fed.R.Civ.P. 52(a).

10 . Cf. Associated Gen. Contractors v. San Francisco Unified School Dist., 616 F.2d 1381, 1388 90 (9th Cir. 1980), cert. denied sub nom. National Ass’n of Minority Contractors v. Associated Gen. Contractors, — U.S. —, 101 S.Ct. 783, 66 L.Ed.2d 603 (1980) (state’s interest in lowest-bid contracting policy governing employment in publicly funded construction projects is paramount to school board’s noneducational interest in voluntarily adopting a minority set-aside affirmative action program).