Groundswell Intervenors Support
Challenge to Busing Order,
in Freeman v. Pitts, a Class Action,
to Restore Local Control of Student Assignment

The affirmative relief ordered by the panel adversely affects nonconsenting students in the DCSS, and, by virtue of the stare decisis doctrine, others like the “anti-busing” students in San Diego. Amici's presentation is in the tradition of those in cases having serious implications for nonparties. Compare amicus presentation in Bob Jones University v. United States, 461 U.S. 574 (1983).

Groundswell Amici then questioned the authority of the Circuit Court's order “to reassign DeKalb County students on a racial basis” to remedy “de facto ‘segregation',” caused by residential patterns. It included the point that it was limited by the separation of powers provisions of the Constitution, concluding:

... Chief Justice Warren E. Burger reiterated in Chadha (I.N.S. v. Chadha, 462 U.S. 919 (1983)) supra, 462 U.S. at 951 that “(t)he Constitution sought to divide the delegated powers of the new federal government into three defined categories, Legislative, Executive and Judicial, to assure, as nearly as possible, that each Branch of government would confine itself to its assigned responsibility. He added that “(t)he hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted.”

This doctrine underlies, Amici submit, Chief Justice Burger's statement in Swann to the effect that there is no basis for ordering assignment of students on a racial basis to remedy de facto “segregation.” Thus, the panel exceeds the outer limits of its power in ordering busing to remedy what, under the relevant facts and history, is at most de facto “segregation” in DeKalb County schools.

Groundswell's amici contention reasonably supports the above argument (p. 47) of Rex E. Lee, a former U.S. Solicitor General, on behalf of the petitioning DeKalb County School System when —
 

Carlin v. Board of Education, San Diego Unified School District,
San Diego Superior Court No. 303800 (1967-1998)
San Diego, California
 

Swann 

Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 32 (1971)
Charlotte, North Carolina
 

Bob Jones 

Bob Jones University v. United States, 461 U.S. 574 (1983)
 

Chadha 

I.N.S. v. Chadha, 462 U.S. 919 (1983)
 

Freeman 

Freeman v. Pitts, 503 U.S. 467, 112 S.Ct. 1430 (1992)
DeKalb County School System (DCSS),
DeKalb County, Georgia
Enstrom: filed amici curiae brief
 

— Handbook: Challenge Three, pages 45 - 54 —