The effort to gain a stay had ultimately come before Chief Justice (then- Justice) Rehnquist on September 12, 1980, who noted in Board of Ed., etc. v. Superior Court, 448 U.S. 1343, the request of the Los Angeles board to "stay an order of the California Supreme Court, dated August 27, 1980, which left standing" Judge Egly's order "requiring mandatory reassignment of between 80,000 and 100,000 first- through ninth-grade students attending approximately 165 elementary and junior high schools pending consideration by this Court of its petition for certiorari."

Then- Justice Rehnquist also noted the question raised about the sufficiency of the evidence to justify such massive busing, which we now know was insufficient (448 U.S. at 1347).

But the justice denied the stay on September 12, 1980, indicating that in the posture in which the request for stay came before him that the grant of a stay "would not be a proper exercise of my function as a Circuit Justice, even though were I voting on the merits of a petition for certiorari challenging the plan I would, as presently advised, feel differently." Id. at 1349.

My clients had received a jolt on September 8, 1980, when a San Diego Superior Court Memorandum Decision and Order indicated greater progress through voluntary desegregation efforts by the San Diego board appeared necessary under the Crawford I ruling to avoid mandatory assignments. Again, the fate of nonparty students and parents not in the class of plaintiffs rested, not upon what they had done, but upon action or non-action by their school board. The membership of the plaintiff-class represented in this class action had been decreed on December 7, 1973 as: "All students attending the San Diego Unified School District and their parents and legal guardians who believe that said schools should be racially balanced, if necessary through court order." [emphasis added]

Thus, in behalf of my clients, as non-class students and parents, on October 10 I filed an amici curiae brief with the San Diego Court, raising points similar to those raised in my proposed brief to Judge Egly, in opposition to starting busing in San Diego.

Then on October 21, 1980, another jolt occurred when the District's staff proposed a mandatory busing plan, as reflected in the San Diego Board's minutes which were later received in evidence as Exhibit 8 on July 16, 1981 as a part of Carlin Intervenors' presentation of facts showing a continuing effort to introduce a busing segment into the