Judicial assignment of dissenting students, solely on the basis of their race, away from their neighborhood schools to distant schools without end, violates the discrimination clause of Sec. 601. Their showing of a violation of the discrimination clause of Sec. 601 is comparable to the showing by Bakke of a violation of the exclusion clause in the same section, which formed the basis for granting relief to Bakke by four of the justices in the majority decision.

To be sure, the plaintiff-class will counter that Justice Powell's decisive ruling requires that the challenge to the existing federal court busing order be considered in the light of rulings in desegregation cases. A contention that such cases support the continued court-ordered busing of these intervenors will be disputed by the dissenting students in their next point in this trial brief. But before reaching that point, the dissenters glean support, in addition to that of the above four justices, for their claim for relief from such assignments from the reasoning in the opinions of Justices Powell and Blackmun in the Bakke case, 438 U.S. 265.

As to the aspect of his decision granting relief to Bakke, Justice Powell said, Id. at 320:

The fatal flaw in petitioner's preferential program is its disregard of individual rights as guaranteed by the Fourteenth Amendment.... Such rights are not absolute. But when a State's distribution of benefits or imposition of burdens hinges on ancestry or the color of a person's skin, that individual is entitled to a demonstration that the challenged classification is necessary to promote a substantial state interest. Petitioner has failed to carry this burden. For this reason, that portion of the California court's judgment holding petitioner's special admissions program invalid under the Fourteenth Amendment must be affirmed.

Earlier in Bakke, Justice Powell said (438 U.S. at 300):