The Board on July 11 formally opposed an open hearing. I had complained constantly about secret steps taken by the Board concerning the plan, under the Brown Act's litigation exception, without the participation of their constituency. But this matter involved public documents so I let members of the local press know about my request to help bring the hearing into the open.

On July 14, opposing counsel appeared personally before the Court and vigorously opposed an open court hearing, arguing the state of litigation in this case and doubtful status of Proposition 209 did not warrant it. I successfully argued that the Ninth Circuit ruling upholding Prop. 209, among other circumstances, entitled my clients to a public hearing in exercising their right to be heard at a meaningful time and in a meaningful manner. Armstrong v. Manzo (1965), 380 U.S. 545,550, 552.
 

The Court set the hearing on my motions for August 22 which I served and filed on July 16. Senator Kopp filed his brief separately.

Our memorandum had two basic points, after emphasizing the upholding of Proposition 209 by the Ninth Circuit U.S. Court of Appeals since issuance of the current “Final” Order.

First, I repeated the earlier argument that the Court should order the Board to modify its integration plan to bring it into constitutional compliance with current law and facts by ending (a) mandatory racial ratios and (b) racial boundary gerrymandering to racially balance classrooms and schools.

Second, I reiterated that the Court should restore to the people jurisdiction over a constitutionally-operated system as required by federal decisional law, re-citing those decisions.

I concluded that “Avoidance of Proposition 209 is an Improper Basis for Perpetuation of Court Jurisdiction.”

The Board reiterated its earlier opposition, as did Plaintiffs. Both stressed that the constitutionality of Proposition 209 was still at issue, and that even if it was upheld there was a specific exception for preexisting court orders.