Classifications based solely upon race must be scrutinized with particular care since they are contrary to our tradition and hence constitutionally suspect... Although the Court has not assumed to define "liberty" with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective. 347 U.S. at 499-500.

"Any child, white or black, who is compelled to leave his neighborhood and spend significant time each day being transported to a distant school suffers an impairment of his liberty and privacy." So stated Justice Powell, in a concurrence in Keyes, 413 U.S. at 247.

After over twenty years of judicial busing of the nature referred to by Justice Powell, the time has come to consider the student intervenors' claims regardless of whether a board fears its years of efforts to erase the remnants of its de jure segregation will not meet judicial approval. Equity requires such consideration in recognition that this type of judicial affirmative action, instituted in a case between only two parties — the plaintiff-class and the board — affects the interests of bystanding dissenting students who are entitled to assert their interests upon enrollment.

Their interests compare favorably in their substantiality with those of the nine Ohio high school students facing suspension for as short as one day and not more than ten days. There, the Court held that due process under the 14th Amendment required at a minimum that they be given some kind of notice and some kind of a hearing before action by school officials to suspend them. Lopez, 419 U.S. at 579.

Indeed, it has been an extraordinary assumption of jurisdiction to render and continue the type of affirmative relief which injures and affects the interests of persons not joined in the action. Compare Bank of California v. Superior Court, 16 Cal.2d 516 (1940).