district, determined to have occurred in a proceeding to which they were not parties, prevent such freedom. In view of their innocent stance and the diversity of the students now before the court as intervening parties, they urge that the trial court should exercise its prerogative as was done by Judge McCormick in Mendez, except that in this case it should explicitly apply the interpretation of the Constitution given by Justice Harlan I under the Equal Protection Clause of the 14th Amendment (Plessy, 163 U.S. at 559):

Our constitution is color-blind, and neither knows nor tolerates classes among citizens.... In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved....

 

II – C. Protracted Judicial Assignment of the Student Intervenors on a Racial Basis Infringes upon the Liberty of Their Parent Intervenors, in violation of the Constitution.

The Due Process Clause of the 5th Amendment to the Constitution provides in pertinent part, "(no) person shall...be deprived of life, liberty, or property, without due process of law." The similarly worded clause in the 14th Amendment has been held to have prevented the states from unreasonably interfering with the liberty of parents to direct the upbringing and education of their children. Meyer, 262 U.S. 390 at 403; Pierce, 268 U.S. 510 at 534-535; and Yoder, 406 U.S. 205 at 232-236.

It follows that the clause in the 5th Amendment is similarly available to parents to prevent the impingement upon their liberty by a federal judicial official in the education of their children.

The courts have upheld compulsory education statutes unless there is a showing of unreasonable interference with the liberty of parents attacking them. Such showings were made in the above cited cases concerning compulsory attendance laws in the states of Nebraska, Oregon and Wisconsin, respectively. In contrast, such a showing was lacking in