Therefore, intervenors have standing, as taxpayer-electors in City District, with no responsibility for the misconduct attributed to the board's predecessors, to present the issue to a trial court. Furthermore, the trial court, arguably acting in a temporary legislative capacity, should consider the 28,000 petitions relevant on the narrow issue of granting an option to students of City District to attend their neighborhood schools.

Remedial busing segments in court-ordered "desegregation" plans differ from "desegregation" measures in other areas of school operation, such as resource allocation. They must be recognized, as in Wilks, as having a "reverse" discriminatory effect upon those now seeking alleviation from them. Alleviation from busing sought by intervenors at this late stage must be distinguished from opposition to busing by a school district, as in Swann, at the time such a remedy was first considered. For alleviation from busing sought by innocent intervenors 20 years after its institution is far different from opposition to its initiation by a school district with a current history of racial discrimination.

These intervening citizens seek restraint in the exercise of extraordinary federal judicial power in the area of student assignments in their school district. Court-ordered school assignments are extraordinary because (1) they are affirmative actions of a legislative nature, and (2) they are federally imposed upon a state legislative entity.

Affirmative action of this nature appears to have been considered beyond the power of the federal judiciary by Justice Felix Frankfurter in 1949 in a concurrence in American Fed. of Labor v. American Sash — Door Co., 335 U.S. 538 at 557:

(T)he Court is without power to shape measures for dealing with the problems of society but has merely the power of negation over measures shaped by others.

The failure to consider the breadth of the decision which led to the exercise of such affirmative action concerned Chief Justice (then-Justice) William H. Rehnquist in dissent in Keyes, 413 U.S. at 258:

The drastic extension of Brown which Green represented was barely, if at all, explicated in the latter opinion.