In a California state court action seeking desegregation of the
schools in the Los Angeles Unified School District (District), the
trial court, in 1970, found
de jure segregation in
violation of both the State and Federal Constitutions and ordered
the District to prepare a desegregation plan. The California
Supreme Court affirmed, but based its decision solely upon the
Equal Protection Clause of the State Constitution, which bars
de facto as well as
de jure segregation. On
remand, the trial court approved a desegregation plan that included
substantial mandatory pupil reassignment and busing. While the
trial court was considering alternative new plans in 1979, the
voters of California ratified an amendment (Proposition I) to the
State Constitution which provides that state courts shall not order
mandatory pupil assignment or transportation unless a federal court
"would be permitted under federal decisional law" to do so to
remedy a violation of the Equal Protection Clause of the Fourteenth
Amendment to the Federal Constitution. The trial court denied the
District's request to halt all mandatory reassignment and busing,
holding that Proposition I was not applicable in light of the
court's 1970 finding of
de jure segregation in violation
of the Fourteenth Amendment. The court then ordered implementation
of a revised plan that again included substantial mandatory pupil
reassignment and busing. The California Court of Appeal reversed,
concluding that the trial court's 1970 findings of fact would not
support the conclusion that the District had violated the Federal
Constitution through intentional segregation. The Court of Appeal
also held that Proposition I was constitutional under the
Fourteenth Amendment, and barred that part of the plan requiring
mandatory student reassignment and busing.
Held: Proposition I does not violate the Fourteenth
Amendment. Pp.
458 U. S.
535-545.
(a) This Court's decisions will not support the contention that,
once a State chooses to do "more" than the Fourteenth Amendment
requires, it may never recede. Such an interpretation of that
Amendment would be destructive of a State's democratic processes
and of its ability to experiment in dealing with the problems of a
heterogeneous population. Proposition I does not embody, expressly
or implicitly, a racial classification.
Page 458 U. S. 528
The simple repeal or modification of desegregation or
antidiscrimination laws, without more, does not embody a
presumptively invalid racial classification. Pp.
458 U. S.
535-540.
(b) Proposition I cannot be characterized as something more than
a mere repeal.
Hunter v. Erickson, 393 U.
S. 385, distinguished. The State Constitution still
places upon school boards a greater duty to desegregate than does
the Fourteenth Amendment. Nor does Proposition I allocate
governmental or judicial power on the basis of a discriminatory
principle. A "dual court system" -- one for the racial majority and
one for the racial minority -- is not established simply because
civil rights remedies are different from those available in other
areas. It was constitutional for the people of the State to
determine that the Fourteenth Amendment's standard was more
appropriate for California courts to apply in desegregation cases
than the standard repealed by Proposition I. Pp.
458 U. S.
540-542.
(c) Even if it could be assumed that Proposition I had a
disproportionate adverse effect on racial minorities, there is no
reason to differ with the state appellate court's conclusion that
Proposition I in fact was not enacted with a discriminatory
purpose. The purposes of the Proposition -- chief among them the
educational benefits of neighborhood schooling -- are legitimate,
nondiscriminatory objectives, and the state court characterized the
claim of discriminatory intent on the part of millions of voters as
but "pure speculation." Pp.
458 U. S.
543-545.
113 Cal. App.
3d 633,
170 Cal. Rptr.
495, affirmed.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and BRENNAN, WHITE, BLACKMUN, REHNQUIST, STEVENS, and
O'CONNOR, JJ., joined. BLACKMUN, J., filed a concurring opinion, in
which BRENNAN, J., joined,
post, p.
458 U.S. 545. MARSHALL, J., filed a
dissenting opinion,
post, p.
458 U. S.
547.
Page 458 U. S. 529
JUSTICE POWELL delivered the opinion of the Court.
An amendment to the California Constitution provides that state
courts shall not order mandatory pupil assignment or transportation
unless a federal court would do so to remedy a violation of the
Equal Protection Clause of the Fourteenth Amendment of the United
States Constitution. The question for our decision is whether this
provision is itself in violation of the Fourteenth Amendment.
I
This litigation began almost 20 years ago, in 1963, when
minority students attending school in the Los Angeles Unified
School District (District) filed a class action in state court
Page 458 U. S. 530
seeking desegregation of the District's schools. [
Footnote 1] The case went to trial some five
years later, and, in 1970, the trial court issued an opinion
finding that the District was substantially segregated in violation
of the State and Federal Constitutions. The court ordered the
District to prepare a desegregation plan for immediate use. App.
139.
On the District's appeal, the California Supreme Court affirmed,
but on a different basis.
Crawford v. Board of
Education, 17 Cal. 3d
280, 551 P.2d 28 (1976). While the trial court had found
de
jure segregation in violation of the Fourteenth Amendment of
the United States Constitution,
see App. 117, 120-121, the
California Supreme Court based its affirmance solely upon the Equal
Protection Clause of the State Constitution. [
Footnote 2] The court explained that, under the
California Constitution,
"state school boards . . . bear a constitutional obligation to
take reasonable steps to alleviate segregation in the public
schools, whether the segregation be
Page 458 U. S. 531
de facto or
de jure in origin."
17 Cal. 3d at 290, 551 P.2d at 34. The court remanded to the
trial court for preparation of a "reasonably feasible" plan for
school desegregation.
Id. at 310, 551 P.2d at 48.
[
Footnote 3]
On remand, the trial court rejected the District's mostly
voluntary desegregation plan, but ultimately approved a second plan
that included substantial mandatory school reassignment and
transportation -- "busing" -- on a racial and ethnic basis.
[
Footnote 4] The plan was put
into effect in the fall of 1978, but, after one year's experience,
all parties to the litigation were dissatisfied.
See 113 Cal. App.
3d 633, 636,
170 Cal. Rptr.
495, 497 (1981). Although the plan continued in operation, the
trial court began considering alternatives in October, 1979.
In November, 1979, the voters of the State of California
ratified Proposition I, an amendment to the Due Process and
Page 458 U. S. 532
Equal Protection Clauses of the State Constitution. [
Footnote 5] Proposition I conforms the
power of state courts to order busing to that exercised by the
federal courts under the Fourteenth Amendment:
"[N]o court of this state may impose upon the State of
California or any public entity, board, or official any obligation
or responsibility with respect to the use of pupil school
assignment or pupil transportation, (1) except to remedy a specific
violation by such party that would also constitute a violation of
the Equal Protection Clause of the 14th Amendment to the United
States Constitution, and (2) unless a federal court would be
permitted under federal decisional law to impose that obligation or
responsibility upon such party to remedy the specific violation of
the Equal Protection Clause. . . . [
Footnote 6] "
Page 458 U. S. 533
Following approval of Proposition I, the District asked the
Superior Court to halt all mandatory reassignment and busing of
pupils. App. 185. On May 19, 1980, the court denied the District's
application. The court reasoned that Proposition I was of no effect
in this case in light of the court's 1970 finding of
de
jure segregation by the District in violation of the
Fourteenth Amendment. Shortly thereafter, the court ordered
implementation of a revised desegregation plan, one that again
substantially relied upon mandatory pupil reassignment and
transportation. [
Footnote
7]
The California Court of Appeal reversed.
113 Cal.
App. 3d 633,
170 Cal. Rptr.
495 (1981). The court found that the trial court's 1970
findings of fact would not support the conclusion that the District
had violated the Federal Constitution through intentional
segregation. [
Footnote 8] Thus,
Proposition I
Page 458 U. S. 534
was applicable to the trial court's desegregation plan and would
bar that part of the plan requiring mandatory student reassignment
and transportation. Moreover, the court concluded that Proposition
I was constitutional under the Fourteenth Amendment.
Id.
at 654, 170 Cal. Rptr. at 509. The court found no obligation on the
part of the State to retain a greater remedy at state law against
racial segregation than was provided by the Federal Constitution.
Ibid. The court rejected the claim that Proposition I was
adopted with a discriminatory purpose.
Id. at 654-655, 170
Cal. Rptr. at 509. [
Footnote
9]
Determining Proposition I to be applicable and constitutional,
the Court of Appeal vacated the orders entered by the Superior
Court. The California Supreme Court denied hearing. App. to Pet.
for Cert. 73a. [
Footnote 10]
We granted certiorari. 454 U.S. 892 (1981).
Page 458 U. S. 535
II
We agree with the California Court of Appeal in rejecting the
contention that, once a State chooses to do "more" than the
Fourteenth Amendment requires, it may never recede. [
Footnote 11] We reject an interpretation of
the Fourteenth Amendment so destructive of a State's democratic
processes and of its ability to experiment. This interpretation has
no support in the decisions of this Court.
Proposition I does not inhibit enforcement of any federal law or
constitutional requirement. Quite the contrary, by its plain
language, the Proposition seeks only to embrace the requirements of
the Federal Constitution with respect to mandatory school
assignments and transportation. It would be paradoxical to conclude
that, by adopting the Equal Protection Clause of the Fourteenth
Amendment, the voters of the State thereby had violated it.
Moreover, even after Proposition I, the California Constitution
still imposes a greater duty of desegregation than does the Federal
Constitution. The state courts of California continue to have an
obligation under state law to order segregated school districts to
use voluntary desegregation techniques, whether or not there has
been a finding of intentional segregation. The school districts
themselves retain a state law obligation to
Page 458 U. S. 536
take reasonably feasible steps to desegregate, and they remain
free to adopt reassignment and busing plans to effectuate
desegregation. [
Footnote
12]
Nonetheless, petitioners contend that Proposition I is
unconstitutional on its face. They argue that Proposition I employs
an "explicit racial classification" and imposes a "race-specific"
burden on minorities seeking to vindicate state-created rights. By
limiting the power of state courts to enforce the state-created
right to desegregated schools, petitioners contend, Proposition I
creates a "dual court system" that discriminates on the basis of
race. [
Footnote 13] They
emphasize that other state-created rights may be vindicated by the
state courts without limitation on remedies. Petitioners argue that
the "dual court system" created by Proposition I is
unconstitutional unless supported by a compelling state
interest.
We would agree that, if Proposition I employed a racial
classification, it would be unconstitutional unless necessary to
further a compelling state interest.
"A racial classification, regardless of purported motivation, is
presumptively invalid
Page 458 U. S. 537
and can be upheld only upon an extraordinary justification."
Personnel Administrator of Massachusetts v. Feeney,
442 U. S. 256,
442 U. S. 272
(1979).
See McLaughlin v. Florida, 379 U.
S. 184,
379 U. S. 196
(1964). But Proposition I does not embody a racial classification.
[
Footnote 14] It neither
says nor implies that persons are to be treated differently on
account of their race. It simply forbids state courts to order
pupil school assignment or transportation in the absence of a
Fourteenth Amendment violation. The benefit it seeks to confer --
neighborhood schooling -- is made available regardless of race in
the discretion of school boards. [
Footnote 15] Indeed, even if Proposition I had a racially
discriminatory effect, in view of the demographic mix of the
District, it is not.clear which race or races would be affected the
most, or in what way. [
Footnote
16] In addition, this Court previously has held that, even when
a neutral law has a disproportionately
Page 458 U. S. 538
adverse effect on a racial minority, the Fourteenth Amendment is
violated only if a discriminatory purpose can be shown. [
Footnote 17]
Similarly, the Court has recognized that a distinction may exist
between state action that discriminates on the basis of race and
state action that addresses, in neutral fashion, race-related
matters. [
Footnote 18] This
distinction is implicit in the Court's repeated statement that the
Equal Protection Clause is not violated by the mere repeal of
race-related legislation or policies that were not required by the
Federal Constitution in the first place. In
Dayton Bd. of
Education v. Brinkman, 433 U. S. 406,
433 U. S. 414
(1977), we found that the school board's mere repudiation of an
earlier resolution calling for desegregation did not violate the
Fourteenth Amendment. [
Footnote
19] In
Reitman v. Mulkey, 387 U.
S. 369,
387 U. S. 376
(1967), and again in
Hunter v. Erickson, 393 U.
S. 385,
393 U. S. 390,
n. 5 (1969), we were careful to note that the laws under review did
more than "mere[ly] repeal" existing antidiscrimination
legislation. [
Footnote
20]
Page 458 U. S. 539
In sum, the simple repeal or modification of desegregation or
antidiscrimination laws, without more, never has been viewed as
embodying a presumptively invalid racial classification. [
Footnote 21]
Were we to hold that the mere repeal of race-related legislation
is unconstitutional, we would limit seriously the authority of
States to deal with the problems of our heterogeneous population.
States would be committed irrevocably to legislation that has
proved unsuccessful, or even harmful, in practice. And certainly
the purposes of the Fourteenth Amendment would not be advanced by
an interpretation that discouraged the States from providing
greater protection to racial minorities. [
Footnote 22] Nor would the purposes of the Amendment
be furthered by requiring the States to maintain legislation
designed to ameliorate race relations or to protect racial
minorities, but which has produced just the opposite effects.
[
Footnote 23] Yet these
would be the results of requiring a State
Page 458 U. S. 540
to maintain legislation that has proved unworkable or harmful
when the State was under no obligation to adopt the legislation in
the first place. Moreover, and relevant to this case, we would not
interpret the Fourteenth Amendment to require the people of a State
to adhere to a judicial construction of their State Constitution
when that Constitution itself vests final authority in the
people.
III
Petitioners seek to avoid the force of the foregoing
considerations by arguing that Proposition I is not a "mere
repeal." Relying primarily on the decision in
Hunter v.
Erickson, supra, they contend that Proposition I does not
simply repeal a state-created right, but fundamentally alters the
judicial system so that "those seeking redress from racial
isolation in violation of state law must be satisfied with less
than full relief from a state court." [
Footnote 24] We do not view
Hunter as
controlling here, nor are we persuaded by petitioners'
characterization of Proposition I as something more than a mere
repeal.
In
Hunter, the Akron city charter had been amended by
the voters to provide that no ordinance regulating real estate on
the basis of race, color, religion, or national origin could take
effect until approved by a referendum. As a result of the charter
amendment, a fair housing ordinance, adopted by the City Council at
an earlier date, was no longer effective. In holding the charter
amendment invalid under the Fourteenth Amendment, the Court held
that the charter amendment was not a simple repeal of the fair
housing ordinance. The
Page 458 U. S. 541
amendment
"not only suspended the operation of the existing ordinance
forbidding housing discrimination, but also required the approval
of the electors before any future [antidiscrimination] ordinance
could take effect."
393 U.S. at
393 U. S.
389-390. Thus, whereas most ordinances regulating real
property would take effect once enacted by the City Council,
ordinances prohibiting racial discrimination in housing would be
forced to clear an additional hurdle. [
Footnote 25] As such, the charter amendment placed an
impermissible, "special burde[n] on racial minorities within the
governmental process."
Id. at
393 U. S. 391.
[
Footnote 26]
Hunter involved more than a "mere repeal" of the fair
housing ordinance; persons seeking antidiscrimination housing laws
-- presumptively racial minorities -- were "singled out for
mandatory referendums, while no other group . . . face[d] that
obstacle."
James v. Valtierra, 402 U.
S. 137,
402 U. S. 142
(1971). By contrast, even on the assumption that racial minorities
benefited from the busing required by state law, Proposition I is
less than a "repeal" of the California Equal Protection Clause. As
noted above, after Proposition I, the State Constitution still
places upon school boards a greater duty to desegregate than does
the Fourteenth Amendment.
Nor can it be said that Proposition I distorts the political
process for racial reasons, or that it allocates governmental or
judicial power on the basis of a discriminatory principle.
"The Constitution does not require things which are different in
fact or opinion to be treated in law as though they were the
Page 458 U. S. 542
same."
Tigner v. Texas, 310 U. S. 141,
310 U. S. 147
(1940). Remedies appropriate in one area of legislation may not be
desirable in another. The remedies available for violation of the
antitrust laws, for example, are different than those available for
violation of the Civil Rights Acts. Yet a "dual court system" --
one for the racial majority and one for the racial minority -- is
not established simply because civil rights remedies are different
from those available in other areas. [
Footnote 27] Surely it was constitutional for the
California Supreme Court to caution that, although, "in some
circumstances, busing will be an appropriate and useful element in
a desegregation plan," in other circumstances, "its
costs,'
both in financial and educational terms, will render its use
inadvisable." See n 3,
supra. It was equally constitutional for the people of the
State to determine that the standard of the Fourteenth Amendment
was more appropriate for California courts to apply in
desegregation cases than the standard repealed by Proposition I.
[Footnote 28]
In short, having gone beyond the requirements of the Federal
Constitution, the State was free to return in part to the standard
prevailing generally throughout the United States. It could have
conformed its law to the Federal Constitution in every respect.
That it chose to pull back only in part, and by preserving a
greater right to desegregation than exists under the Federal
Constitution, most assuredly does not render the Proposition
unconstitutional on its face.
Page 458 U. S. 543
IV
The California Court of Appeal also rejected petitioners' claim
that Proposition I, if facially valid, was nonetheless
unconstitutional because enacted with a discriminatory purpose. The
court reasoned that the purposes of the Proposition were well
stated in the Proposition itself. [
Footnote 29] Voters may have been motivated by any of
these purposes, chief among them the educational benefits of
neighborhood schooling. The court found that voters also may have
considered that the extent of mandatory busing, authorized by state
law, actually was aggravating, rather than ameliorating, the
desegregation problem.
See n 1,
supra. It characterized petitioners' claim
of discriminatory intent on the part of millions of voters as but
"pure speculation." 113 Cal. App. 3d at 655, 170 Cal. Rptr. at
509.
In
Reitman v. Mulkey, 387 U. S. 369
(1967), the Court considered the constitutionality of another
California Proposition. In that case, the California Supreme Court
had concluded that the Proposition was unconstitutional because it
gave the State's approval to private racial discrimination. This
Court agreed, deferring to the findings made by the California
court. The Court noted that the California court was "armed . . .
with the knowledge of the facts and circumstances concerning the
passage and potential impact" of the Proposition, and "familiar
with the milieu in which that provision would operate."
Id. at
387 U. S. 378.
Similarly, in this case,
Page 458 U. S. 544
again involving the circumstances of passage and the potential
impact of a Proposition adopted at a statewide election, we see no
reason to differ with the conclusions of the state appellate court.
[
Footnote 30]
Under decisions of this Court, a law neutral on its face still
may be unconstitutional if motivated by a discriminatory purpose.
In determining whether such a purpose was the motivating factor,
the racially disproportionate effect of official action provides
"an
important starting point.'" Personnel Administrator of
Massachusetts v. Feeney, 442 U.S. at 442 U. S. 274,
quoting Arlington Heights v. Metropolitan Housing Dev.
Corp., 429 U. S. 252,
429 U. S. 266
(1977).
Proposition I in no way purports to limit the power of state
courts to remedy the effects of intentional segregation with its
accompanying stigma. The benefits of neighborhood schooling are
racially neutral. This manifestly is true in Los Angeles, where
over 75% of the public school body is composed of groups viewed as
racial minorities.
See nn.
1 and |
1 and S.
527fn16|>16,
supra. Moreover, the Proposition simply
removes one means of achieving the state-created right to
desegregated education. School districts retain the obligation to
alleviate segregation regardless of cause. And the state courts
still may order desegregation measures other than pupil school
assignment or pupil transportation. [
Footnote 31] �
1 and
S. 545�
Even if we could assume that Proposition I had a
disproportionate adverse effect on racial minorities, we see no
reason to challenge the Court of Appeal's conclusion that the
voters of the State were not motivated by a discriminatory purpose.
See 113 Cal. App. 3d at 654-655, 170 Cal. Rptr. at 509. In
this case, the Proposition was approved by an overwhelming majority
of the electorate. [
Footnote
32] It received support from members of all races. [
Footnote 33] The purposes of the
Proposition are stated in its text, and are legitimate,
nondiscriminatory objectives. In these circumstances, we will not
dispute the judgment of the Court of Appeal or impugn the motives
of the State's electorate.
Accordingly the judgment of the California Court of Appeal
is
Affirmed.
[
Footnote 1]
In 1980, the District included 562 schools with 650,000 students
in an area of 711 square miles. In 1968, when the case went to
trial, the District was 53.6% white, 22.6% black, 20% Hispanic, and
3.8% Asian and other. By October, 1980, the demographic composition
had altered radically: 23.7% white, 23.3% black, 45.3% Hispanic,
and 7.7% Asian and other.
See 113 Cal.
App. 3d 633, 642,
170 Cal. Rptr.
495, 501 (1981).
[
Footnote 2]
"The findings in this case adequately support the trial court's
conclusion that the segregation in the defendant school district is
de jure in nature. We shall explain, however, that we do
not rest our decision on this characterization, because we continue
to adhere to our conclusion in [
Jackson v. Pasadena City School
Dist., 59 Cal. 2d
876, 382 P.2d 878 (1963)] that school boards in California bear
a constitutional obligation to take reasonably feasible steps to
alleviate school segregation 'regardless of its cause.'"
Crawford v. Board of Education, 17 Cal. 3d at 285, 551
P.2d at 30. The court explained that federal cases were not
controlling:
"In focusing primarily on . . . federal decisions . . . ,
defendant ignores a significant line of California decisions,
decisions which authoritatively establish that, in this state,
school boards do bear a constitutional obligation to take
reasonable steps to alleviate segregation in the public schools,
whether the segregation be
de facto or
de jure in
origin."
Id. at 290, 551 P.2d at 33-34.
[
Footnote 3]
In stating general principles to guide the trial court on
remand, the State Supreme Court discussed the "busing"
question:
"While critics have sometimes attempted to obscure the issue,
court decisions time and time again emphasized that 'busing' is not
a constitutional end in itself, but is simply one potential tool
which may be utilized to satisfy a school district's constitutional
obligation in this field. . . . [I]n some circumstances, busing
will be an appropriate and useful element in a desegregation plan,
while in other instances, its 'costs,' both in financial and
educational terms, will render its use inadvisable."
Id. at 309, 551 P.2d at 47. It noted as well that a
state court should not intervene to speed the desegregation process
so long as the school board takes "reasonably feasible steps to
alleviate school segregation,"
id. at 305, 551 P.2d at 45,
and that "a court cannot properly issue a
busing' order so long
as a school district continues to meet its constitutional
obligations." Id. at 310, 551 P.2d at 48.
[
Footnote 4]
The plan provided for the mandatory reassignment of
approximately 40,000 students in the fourth through eighth grades.
Some of these children were bused over long distances requiring
daily round-trip bus rides of as long as two to four hours. In
addition, the plan provided for the voluntary transfer of some
30,000 students.
Respondent Bustop, Inc., unsuccessfully sought to stay
implementation of the plan.
See Bustop, Inc. v. Board of
Education, 439 U. S. 1380
(1978) (REHNQUIST, J., in chambers);
Bustop, Inc. v. Board of
Education, 439 U. S. 1380
(1978) (POWELL, J., in chambers).
[
Footnote 5]
Proposition I was placed before the voters following a
two-thirds vote of each house of the state legislature. Cal.Const.,
Art. 18, § 1. The State Senate approved the Proposition by a vote
of 28 to 6, the State Assembly by a vote of 62 to 17. The voters
favored the Proposition by a vote of 2,433,312 (68.6%) to 1,112,923
(31.4%). The Proposition received a majority of the vote in each of
the State's 58 counties and in 79 of the State's 80 assembly
districts. California Secretary of State, Statement of the Vote,
November 6, 1979, Election 3-4, 43-49.
[
Footnote 6]
Proposition I added a lengthy proviso to Art. 1, § 7(a), of the
California Constitution. Following passage of Proposition I, § 7
now provides, in relevant part:
"(a) A person may not be deprived of life, liberty, or property
without due process of law or denied equal protection of the laws;
provided, that nothing contained herein or elsewhere in this
Constitution imposes upon the State of California or any public
entity, board, or official any obligations or responsibilities
which exceed those imposed by the Equal Protection Clause of the
14th Amendment to the United States Constitution with respect to
the use of pupil school assignment or pupil transportation. In
enforcing this subdivision or any other provision of this
Constitution, no court of this state may impose upon the State of
California or any public entity, board, or official any obligation
or responsibility with respect to the use of pupil school
assignment or pupil transportation, (1) except to remedy a specific
violation by such party that would also constitute a violation of
the Equal Protection Clause of the 14th Amendment to the United
States Constitution, and (2) unless a federal court would be
permitted under federal decisional law to impose that obligation or
responsibility upon such party to remedy the specific violation of
the Equal Protection Clause of the 14th Amendment of the United
States Constitution."
"
* * * *"
"Nothing herein shall prohibit the governing board of a school
district from voluntarily continuing or commencing a school
integration plan after the effective date of this subdivision as
amended."
"In amending this subdivision, the Legislature and people of the
State of California find and declare that this amendment is
necessary to serve compelling public interests, including those of
making the most effective use of the limited financial resources
now and prospectively available to support public education,
maximizing the educational opportunities and protecting the health
and safety of all public school pupils, enhancing the ability of
parents to participate in the educational process, preserving
harmony and tranquility in this state and its public schools,
preventing the waste of scarce fuel resources, and protecting the
environment."
[
Footnote 7]
The Superior Court ordered the immediate implementation of the
revised plan. The District was unsuccessful in its effort to gain a
stay of the plan pending appeal.
See Board of Education v.
Superior Court, 448 U. S. 1343
(1980) (REHNQUIST, J., in chambers).
[
Footnote 8]
"When the 1970 findings of the trial court are reviewed in the
light of the correct applicable federal law, it is apparent that no
specific segregative intent with discriminatory purpose was found.
The thrust of the findings of the trial court was that passive
maintenance by the Board of a neighborhood school system in the
face of widespread residential racial imbalance amounted to
de
jure segregation in violation of the Fourteenth Amendment. . .
. But a school board has no duty under the Fourteenth Amendment to
meet and overcome the effect of population movements."
113 Cal. App. 3d at 645-646, 170 Cal. Rptr. at 503.
[
Footnote 9]
The Court of Appeal also rejected the claim that Proposition I
deprived minority children of a "vested right" to desegregated
education in violation of due process.
See id. at 655-656,
170 Cal. Rptr. at 509-510. Petitioners no longer advance this
claim.
[
Footnote 10]
On March 16, 1981, the District directed that mandatory pupil
reassignment under the Superior Court's revised plan be terminated
on April 20, 1981. On that date, parents of children who had been
reassigned were given the option of returning their children to
neighborhood schools. According to respondent Board of Education,
approximately 7,000 pupils took this option of whom 4,300 were
minority students. Brief for Respondent Board of Education 10.
The state courts refused to enjoin termination of the plan. On
April 17, 1981, however, the United States District Court for the
Central District of California issued a temporary restraining order
preventing termination of the plan.
Los Angeles NAACP v. Los
Angeles Unified School District, 513 F.
Supp. 717. The District Court found that there was a "fair
chance" that intentional segregation by the District could be
demonstrated.
Id. at 720. The District Court's order was
vacated on the following day by the United States Court of Appeals
for the Ninth Circuit.
Los Angeles Unified School District v.
District Court, 650 F.2d 1004 (1981). On remand, the District
Court denied the District's motion to dismiss. This ruling has been
certified for interlocutory appeal.
See Brief for
Respondent Board of Education 10, n. 4.
On September 10, 1981, the Superior Court approved a new,
voluntary desegregation plan.
[
Footnote 11]
Respondent Bustop, Inc., argues that, far from doing "more" than
the Fourteenth Amendment requires, the State actually violated the
Amendment by assigning student on the basis of race when such
assignments were not necessary to remedy a federal constitutional
violation.
See Brief for Respondent Bustop, Inc., 10-18.
We do not reach this contention.
[
Footnote 12]
In this respect, this case differs from the situation presented
in
Washington v. Seattle School District No. 1, ante, p.
458 U. S. 457.
In an opinion delivered after Proposition I was enacted, the
California Supreme Court stated that
"the amendment neither releases school districts from their
state constitutional obligation to take reasonably feasible steps
to alleviate segregation regardless of its cause, nor divests
California courts of authority to order desegregation measures
other than pupil school assignment or pupil transportation."
McKinny v. Oxnard Union High School District Board of
Trustees, 31 Cal. 3d 79,
92-93, 642 P.2d 460, 467 (1982). Moreover, the Proposition only
limits state courts when enforcing the State Constitution. Thus,
the Proposition would not bar state court enforcement of state
statutes requiring busing for desegregation, or for any other
purpose.
Cf. Brown v. Califano, 201 U.S.App.D.C. 235, 244,
627 F.2d 1221, 1230 (1980) (legislation limiting power of federal
agency to require busing by local school boards held constitutional
in view of the "effective avenues for desegregation" left open by
the legislation).
[
Footnote 13]
"[I]t is racial discrimination in the judicial apparatus of the
state, not racial discrimination in the state's schools, that
petitioners challenge under the Fourteenth Amendment in this
case."
Brief for Petitioners 48.
[
Footnote 14]
In
Hunter v. Erickson, 393 U.
S. 385 (1969), the Court invalidated a city charter
amendment which placed a special burden on racial minorities in the
political process. The Court considered that, although the law was
neutral on its face, "the reality is that the law's impact falls on
the minority."
Id. at
393 U. S. 391.
In light of this reality and the distortion of the political
process worked by the charter amendment, the Court considered that
the amendment employed a racial classification despite its facial
neutrality. In this case, the elements underlying the holding in
Hunter are missing.
See infra.
[
Footnote 15]
A neighborhood school policy, in itself, does not offend the
Fourteenth Amendment.
See Swann v. Charlotte-Mecklenburg Bd. of
Ed., 402 U. S. 1,
402 U. S. 28
(1971) ("Absent a constitutional violation, there would be no basis
for judicially ordering assignment of students on a racial basis.
All things being equal, with no history of discrimination, it might
well be desirable to assign pupils to schools nearest their
homes").
Cf. 20 U.S.C. § 1701:
"(a) The Congress declares it to be the policy of the United
States that (1) all children enrolled in public schools are
entitled to equal educational opportunity without regard to race,
color, sex, or national origin; and (2) the neighborhood is the
appropriate basis for determining public school assignments."
[
Footnote 16]
In the Los Angeles School District, white students are now the
racial minority,
see n
1,
supra. Similarly, in Los Angeles County, racial
minorities, including those of Spanish origin, constitute the
majority of the population.
See U.S. Dept. of Commerce,
1980 Census of Population and Housing, California, Advance Reports
6 (Mar.1981).
[
Footnote 17]
See Washington v. Davis, 426 U.
S. 229,
426 U. S.
238-248 (1976);
Arlington Heights v. Metropolitan
Housing Dev. Corp., 429 U. S. 252,
429 U. S. 265
(1977);
James v. Valtierra, 402 U.
S. 137,
402 U. S. 141
(1971).
[
Footnote 18]
Proposition I is not limited to busing for the purpose of racial
desegregation. It applies neutrally to "pupil school assignment or
pupil transportation" in general. Even so, it is clear that
court-ordered busing in excess of that required by the Fourteenth
Amendment, as one means of desegregating schools, prompted the
initiation and probably the adoption of Proposition I.
[
Footnote 19]
See Dayton Bd. of Ed. v. Brinkman, 443 U.S. at
443 U. S. 531,
n. 5 ("Racial imbalance, we noted in
Dayton I, is not
per se a constitutional violation, and rescission of prior
resolutions proposing desegregation is unconstitutional only if the
resolutions were required in the first place by the Fourteenth
Amendment").
[
Footnote 20]
In
Hunter, we noted that "we do not hold that mere
repeal of an existing [antidiscrimination] ordinance violates the
Fourteenth Amendment." 393 U.S. at
393 U. S. 390,
n. 5. In
Reitman, the Court held that California
Proposition 14 was unconstitutional under the Fourteenth Amendment
not because it repealed two pieces of antidiscrimination
legislation, but because the Proposition involved the State in
private racial discrimination:
"Here we are dealing with a provision which does not just repeal
an existing law forbidding private racial discriminations. Section
26 was intended to authorize, and does authorize, racial
discrimination in the housing market."
387 U.S. at
387 U. S. 380
381.
[
Footnote 21]
Of course, if the purpose of repealing legislation is to
disadvantage a racial minority, the repeal is unconstitutional for
this reason.
See Reitman v. Mulkey, 387 U.
S. 369 (1967).
[
Footnote 22]
See Palmer v. Thompson, 403 U.
S. 217,
403 U. S. 228
(1971) ("To hold . . . that every public facility or service, once
opened, constitutionally
locks in' the public sponsor so that
it may not be dropped . . . would plainly discourage the expansion
and enlargement of needed services in the long run") (BURGER, C.J.,
concurring); Reitman v. Mulkey, supra, at 387 U. S. 395
("Opponents of state antidiscrimination statutes are now in a
position to argue that such legislation should be defeated because,
if enacted, it may be unrepealable") (Harlan, J.,
dissenting).
[
Footnote 23]
In his dissenting opinion in
Reitman v. Mulkey, supra,
at
387 U. S. 395,
Justice Harlan remarked upon the need for legislative flexibility
when dealing with the "delicate and troublesome problems of race
relations." He noted:
"The lines that have been and must be drawn in this area,
fraught as it is with human sensibilities and frailties of whatever
race or creed, are difficult ones. The drawing of them requires
understanding, patience, and compromise, and is best done by
legislatures, rather than by courts. When legislation in this field
is unsuccessful, there should be wide opportunities for legislative
amendment, as well as for change through such processes as the
popular initiative and referendum."
387 U.S. at
387 U. S.
395-396.
[
Footnote 24]
Tr. of Oral Arg. 6.
See cl., at 7-8 ("The fact that a
state may be free to remove a right or remove a duty does not mean
that it has the same freedom to leave the right in place. but
simply, in a discriminatory, way we argue, provide less than full
judicial remedy").
[
Footnote 25]
"In the case before us . . . the city of Akron has not attempted
to allocate governmental power on the basis of any general
principle. Here, we have a provision that has the clear purpose of
making it more difficult for certain racial and religious
minorities to achieve legislation that is in their interest."
393 U.S. at
393 U. S. 395
(Harlan, J., concurring).
[
Footnote 26]
The
Hunter Court noted that, although "the law on its
face treats Negro and white, Jew and gentile in an identical
manner,"
id. at
393 U. S. 391,
a charter amendment making it more difficult to pass
antidiscrimination legislation could only disadvantage racial
minorities in the governmental process.
[
Footnote 27]
Petitioners contend that Proposition I only restricts busing for
the purpose of racial discrimination. The Proposition is neutral on
its face, however, and respondents -- as well as the State in its
amicus brief -- take issue with petitioners'
interpretation of the provision.
[
Footnote 28]
Similarly, a "dual constitution" is not established when the
State chooses to go beyond the requirements of the Federal
Constitution in some areas, but not others. Nor is a "dual
executive branch" created when an agency is given enforcement
powers in one area but not in another.
Cf. Brown v.
Califano, 201 U.S.App.D.C. 235, 627 F.2d 1221 (1980)
(upholding federal legislation prohibiting a federal executive
agency, but not local school officials or federal courts, from
requiring busing).
[
Footnote 29]
The Proposition contains its own statement of purpose:
"[T]he Legislature and people of the State of California find
and declare that this amendment is necessary to serve compelling
public interests, including those of making the most effective use
of the limited financial resources now and prospectively available
to support public education, maximizing the educational
opportunities and protecting the health and safety of all public
school pupils, enhancing the ability of parents to participate in
the educational process, preserving harmony and tranquility in this
state and its public schools, preventing the waste of scarce fuel,
resources, and protecting the environment."
[
Footnote 30]
Cf.
Washington v. Davis, 426 U.S., at
426 U. S. 253
("The extent of deference that one pays to the trial court's
determination of the factual issue, and indeed, the extent to which
one characterizes the intent issue as a question of fact or a
question of law, will vary in different contexts")(STEVENS, J.,
concurring).
[
Footnote 31]
In
Brown v. Califano, supra, the Court of Appeals found
that a federal statute preventing the Department of Health,
Education, and Welfare (HEW) from requiring busing "to a school
other than the school which is nearest the student's home," 42
U.S.C. § 2000d, was not unconstitutional. HEW retained authority to
encourage school districts to desegregate through other means, and
the enforcement powers of the Department of Justice were left
untouched. The court therefore concluded that the limits on HEW's
ability to order mandatory busing did not have a discriminatory
effect. And, having done so, it refused to inquire into legislative
motivation: "Absent discriminatory effect, judicial inquiry into
legislative motivation is unnecessary, as well as undesirable." 201
U.S.App.D.C. at 248, 627 F.2d at 1234 (footnote omitted).
[
Footnote 32]
Cf. Washington v. Davis, supra, at
426 U. S. 253
(STEVENS, J., concurring) ("It is unrealistic . . . to invalidate
otherwise legitimate action simply because an improper motive
affected the deliberation of a participant in the decisional
process. A law conscripting clerics should not be invalidated
because an atheist voted for it").
[
Footnote 33]
Proposition I received support from 73.9% of the voters in Los
Angeles County, which has a "minority" population -- including
persons of Spanish origin -- of over 50%. California Secretary of
State, Statement of the Vote, November 6, 1979, Election 3.
See n 16,
supra. By contrast, the Proposition received its smallest
percentage of the vote in Humboldt and Marin Counties, which are
nearly all-white in composition.
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN joins,
concurring.
While I join the opinion of the Court, I write separately to
address what I believe are the critical distinctions between this
case and
Washington v. Seattle School District No. 1, ante
p.
458 U. S. 457.
Page 458 U. S. 546
The Court always has recognized that distortions of the
political process have special implications for attempts to achieve
equal protection of the laws. Thus the Court has found particularly
pernicious those classifications that threaten the ability of
minorities to involve themselves in the process of self-government,
for if laws are not drawn within a "just framework,"
Hunter v.
Erickson, 393 U. S. 385,
393 U. S. 393
(1969) (Harlan, J., concurring), it is unlikely that they will be
drawn on just principles.
The Court's conclusion in
Seattle followed inexorably
from these considerations. In that case, the statewide electorate
reallocated decisionmaking authority to
"'mak[e] it
more difficult for certain racial and
religious minorities [than for other members of the community] to
achieve legislation that is in their interest.'"
Washington v. Seattle School District No. 1, ante at
458 U. S. 470
(emphasis in original), quoting
Hunter v. Erickson, 393
U.S. at
393 U. S. 395
(Harlan, J., concurring). The Court found such a political
structure impermissible, recognizing that, if a class cannot
participate effectively in the process by which those rights and
remedies that order society are created, that class necessarily
will be "relegated, by state fiat, in a most basic way to
second-class status."
Plyler v. Doe, 457 U.
S. 202,
457 U. S. 233
(1982) (BLACKMUN, J., concurring).
In my view, something significantly different is involved in
this case. State courts do not create the rights they enforce;
those rights originate elsewhere -- in the state legislature, in
the State's political subdivisions, or in the state constitution
itself. When one of those rights is repealed, and therefore is
rendered unenforceable in the courts, that action hardly can be
said to restructure the State's decisionmaking mechanism. While the
California electorate may have made it more difficult to achieve
desegregation when it enacted Proposition I, to my mind, it did so
not by working a structural change in the political process so much
as by simply repealing the right to invoke a judicial busing
remedy. Indeed, ruling for petitioners
Page 458 U. S. 547
on a
Hunter theory seemingly would mean that statutory
affirmative action or antidiscrimination programs never could be
repealed, for a repeal of the enactment would mean that enforcement
authority previously lodged in the state courts was being removed
by another political entity.
In short, the people of California -- the same "entity" that put
in place the State Constitution and created the enforceable
obligation to desegregate -- have made the desegregation obligation
judicially unenforceable. The "political process or the
decisionmaking mechanism used to
address racially
conscious legislation" has not been "singled out for peculiar and
disadvantageous treatment,"
Washington v. Seattle School
District No. 1, ante at
458 U. S. 485
(emphasis in original), for those political mechanisms that create
and repeal the rights ultimately enforced by the courts were left
entirely unaffected by Proposition I. And I cannot conclude that
the repeal of a state-created right -- or, analogously, the removal
of the judiciary's ability to enforce that right -- "
curtail[s]
the operation of those political processes ordinarily to be relied
upon to protect minorities.'" Ante at 458 U. S. 486,
quoting United States v. Carolene Products Co.,
304 U. S. 144,
304 U. S. 153,
n. 4 (1938).
Because I find
Seattle distinguishable from this case,
I join the opinion and judgment of the Court.
JUSTICE MARSHALL, dissenting.
The Court today addresses two state ballot measures, a
constitutional amendment and a statutory initiative, each of which
is admittedly designed to substantially curtail, if not eliminate,
the use of mandatory student assignment or transportation as a
remedy for
de facto segregation. In
Washington v.
Seattle School District No. 1, ante p.
458 U. S. 457
(
Seattle), the Court concludes that Washington's
Initiative 350, which effectively prevents school boards from
ordering mandatory school assignment in the absence of a finding of
de jure segregation within the meaning of the Fourteenth
Amendment, is unconstitutional because
"it uses the racial nature of an issue to define the
governmental decisionmaking
Page 458 U. S. 548
structure, and thus imposes substantial and unique burdens on
racial minorities."
Seattle, ante at
458 U. S. 470.
Inexplicably, the Court simultaneously concludes that California's
Proposition I, which effectively prevents a state court from
ordering the same mandatory remedies in the absence of a finding of
de jure segregation, is constitutional because,
"having gone beyond the requirements of the Federal
Constitution, the State was free to return in part to the standard
prevailing generally throughout the United States."
Ante at
458 U. S. 542.
Because I fail to see how a fundamental redefinition of the
governmental decisionmaking structure with respect to the same
racial issue can be unconstitutional when the State seeks to remove
the authority from local school boards, yet constitutional when the
State attempts to achieve the same result by limiting the power of
its courts, I must dissent from the Court's decision to uphold
Proposition I.
I
In order to understand fully the implications of the Court's
action today, it is necessary to place the facts concerning the
adoption of Proposition I in their proper context. Nearly two
decades ago, a unanimous California Supreme Court declared that
"[t]he segregation of school children into separate schools
because of their race, even though the physical facilities and the
methods and quality of instruction in the several schools may be
equal, deprives the children of the minority group of equal
opportunities for education and denies them equal protection and
due process of the law."
Jackson v. Pasadena City School
District, 59 Cal. 2d
876, 880, 382 P.2d 878, 880-881 (1963). Recognizing that the
"right to an equal opportunity for education and the harmful
consequences of segregation" do not differ according to the cause
of racial isolation, the California Supreme Court declined to adopt
the distinction between
de facto and
de jure
segregation engrafted by this Court on the Fourteenth Amendment.
Id.
Page 458 U. S. 549
at 881, 382 P.2d at 881-882. Instead, the court clearly held
that "school boards [must] take steps, insofar as reasonably
feasible, to alleviate racial imbalance in schools regardless of
its cause."
Id. at 881, 382 P.2d at 882.
As the California Supreme Court subsequently explained, the duty
established in
Jackson does not require that "each school
in a district . . . reflect the racial composition of the district
as a whole."
Crawford v. Board of
Education, 17 Cal. 3d
280, 302, 551 P.2d 28, 42 (1976) (
Crawford I). Rather,
it is sufficient that school authorities
"take reasonable and feasible steps to eliminate
segregated schools,
i.e., schools in which the
minority student enrollment is so disproportionate as realistically
to isolate minority students from other students, and thus deprive
minority students of an integrated educational experience."
Id. at 303, 551 P.2d at 43 (emphasis in original).
Moreover, the California courts have made clear that the primary
responsibility for implementing this state constitutional duty lies
with local school boards.
"[S]o long as a local school board initiates and implements
reasonably feasible steps to alleviate school segregation in its
district, and so long as such steps produce meaningful progress in
the alleviation of such segregation, and its harmful consequences,
. . . the judiciary should [not] intervene in the desegregation
process."
Id. at 305-306, 551 P.2d at 45. If, however, a school
board neglects or refuses to implement meaningful programs designed
to bring about an end to racial isolation in the public schools,
"the court is left with no alternative but to intervene to protect
the constitutional rights of minority children."
Id. at
307, 551 P.2d at 45. When judicial intervention is necessary, the
court
"may exercise broad equitable powers in formulating and
supervising a plan which the court finds will insure meaningful
progress to alleviate the harmful consequences of school
segregation in the district."
Id. at 307, 551 P.2d at 46. Moreover,
"once a school board defaults in its constitutional task, the
court, in
Page 458 U. S. 550
devising a remedial order, is not precluded from requiring the
busing of children as part of a reasonably feasible desegregation
plan."
Id. at 310, 551 P.2d at 48.
Like so many other decisions protecting the rights of
minorities, California's decision to eradicate the evils of
segregation regardless of cause has not been a popular one. In the
nearly two decades since the State Supreme Court's decision in
Jackson, there have been repeated attempts to restrain
school boards and courts from enforcing this constitutional
guarantee by means of mandatory student transfers or assignments.
In 1970, shortly after the San Francisco Unified School District
voluntarily adopted a desegregation plan involving mandatory
student assignment, the California Legislature enacted Education
Code § 1009.5, Cal.Educ. Code Ann. § 1009.5, currently codified at
Cal.Educ.Code Ann. § 35350 (West 1978), which provides that
"[n]o governing board of a school district shall require any
student or pupil to be transported for any purpose or for any
reason without the written permission of the parent or
guardian."
In
San Francisco Unified School District v.
Johnson, 3 Cal. 3d 937,
479 P.2d 669 (1971), the California Supreme Court interpreted this
provision only to bar a school district from compelling students,
without parental consent, to use means of transportation furnished
by the district. Construing the statute to prohibit nonconsensual
assignment of students for the purpose of eradicating
de
jure or
de facto segregation, the court concluded,
would clearly violate both the State and the Federal Constitutions
by "exorcising a method that, in many circumstances, is the sole
and exclusive means of eliminating racial segregation in the
schools."
Id. at 943, 479 P.2d at 671.
The very next year, opponents of mandatory student assignment
for the purpose of achieving racial balance again attempted to
eviscerate the state constitutional guarantee recognized in
Jackson. Proposition 21, which was enacted by referendum
in November, 1972, stated that "[n]o public school
Page 458 U. S. 551
student shall, because of his race, creed, or color, be assigned
to or be required to attend a particular school." Predictably, the
California Supreme Court struck down Proposition 21 "for the same
reasons set forth by us in
Johnson."
Santa Barbara
School District v. Superior Court, 13 Cal. 3d
315, 324, 530 P.2d 605, 613 (1975).
Finally, in 1979, the people of California enacted Proposition
I. That Proposition, like all of the previous initiatives,
effectively deprived California courts of the ability to enforce
the state constitutional guarantee that minority children will not
attend racially isolated schools by use of what may be "the sole
and exclusive means of eliminating racial segregation in the
schools,"
San Francisco United School District v. Johnson,
supra, at 943, 479 P.2d at 671, mandatory student assignment
and transfer. Unlike the earlier attempts to accomplish this
objective, however, Proposition I does not purport to prevent
mandatory assignments and transfers when such measures are
predicated on a violation of the Federal Constitution. Therefore,
the only question presented by this case is whether the fact that
mandatory transfers may still be made to vindicate federal
constitutional rights saves this initiative from the constitutional
infirmity presented in the previous attempts to accomplish this
same objective. In my view, the recitation of the obvious -- that a
state constitutional amendment does not override federal
constitutional guarantees -- cannot work to deprive minority
children in California of their federally protected right to the
equal protection of the laws.
II
A
In
Seattle, the Court exhaustively set out the relevant
principles that control the present inquiry. We there found that a
series of precedents, exemplified by
Hunter v. Erickson,
393 U. S. 385
(1969), and
Lee v. Nyquist, 318 F.
Supp. 710 (WDNY 1970) (three-judge court),
summarily
aff'd, 402 U.S. 935 (1971), establish that the Fourteenth
Amendment
Page 458 U. S. 552
prohibits a State from allocating "governmental power
nonneutrally, by explicitly using the
racial nature of a
decision to determine the decisionmaking process."
Seattle,
ante at
458 U. S. 470
(emphasis in original). We concluded that
"state action of this kind . . . 'places
special
burdens on racial minorities within the governmental process' . . .
thereby 'making it
more difficult for certain racial and
religious minorities [than for other members of the community] to
achieve legislation that is in their interest.'"
Ibid. (emphasis in original), quoting
Hunter v.
Erickson, supra, at
393 U. S. 391,
393 U. S. 395
(Harlan, J., concurring).
It is therefore necessary to determine whether Proposition I
works a "nonneutral" reallocation of governmental power on the
basis of the racial nature of the decision. This determination is
also informed by our decision in
Seattle. In that case, we
were presented with a statewide initiative which effectively
precluded local school boards from ordering mandatory student
assignment or transfer except where required to remedy a
constitutional violation. We concluded that the initiative violated
the Fourteenth Amendment because it reallocated decisionmaking
authority over racial issues from the local school board to a "new
and remote level of government."
Seattle, ante at
458 U. S. 483.
In reaching this conclusion, we specifically affirmed three
principles that are particularly relevant to the present
inquiry.
First, we rejected the State's argument that a statewide
initiative prohibiting mandatory student assignment has no "racial
overtones" simply because it does not mention the words "race" or
"integration."
Seattle, ante at
458 U. S. 471.
We noted that
"[n]either the initiative's sponsors, nor the District Court,
nor the Court of Appeals had any difficulty perceiving the racial
nature of the issue settled by Initiative 350."
Ibid. In light of its language and the history
surrounding its adoption, we found it "beyond reasonable dispute .
. . that the initiative was enacted "'because of," not merely "in
spite of," its adverse effects upon' busing for integration."
Page 458 U. S. 553
Ibid., quoting
Personnel Administrator of
Massachusetts v. Feeney, 442 U. S. 256,
442 U. S. 279
(1979). Moreover, we rejected the Solicitor General's remarkable
contention, a contention also pressed here, that "busing for
integration . . . is not a peculiarly
racial' issue at all."
Seattle, ante at 458 U. S.
471-472. While not discounting the value of an
integrated education to nonminority students, we concluded that
Lee v. Nyquist, supra, definitively established that
"desegregation of the public schools . . . , at bottom, inures
primarily to the benefit of the minority, and is designed for that
purpose," thereby bringing it within the Hunter doctrine.
Seattle, ante at 458 U. S.
472.
Second, the
Seattle Court determined that Initiative
350 unconstitutionally reallocated power from local school boards
to the state legislature or the statewide electorate. After the
enactment of Initiative 350, local school boards continued to
exercise considerable discretion over virtually all educational
matters, including student assignment. Those seeking to eradicate
de facto segregation, however, were forced to "surmount a
considerably higher hurdle than persons seeking comparable
legislative action,"
Seattle, ante at
458 U. S. 474,
for, instead of seeking relief from the local school board, those
pursuing this racial issue were forced to appeal to a different and
more remote level of government. Just as in
Hunter v. Erickson,
supra, where those interested in enacting fair housing
ordinances were compelled to gain the support of a majority of the
electorate, we held that this reallocation of governmental power
along racial lines offends the Equal Protection Clause. Our holding
was not altered by the fact that those seeking to combat
de
facto segregation could still pursue their cause by
petitioning local boards to enact voluntary measures or by seeking
action from the state legislature. Nor were we persuaded by the
argument that no transfer of power had occurred because the State
was ultimately responsible for the educational policy of local
school boards. We found it sufficient that Initiative 350 had
deprived those seeking
Page 458 U. S. 554
to redress a racial harm of the right to seek a particularly
effective form of redress from the level of government ordinarily
empowered to grant the remedy.
Finally, the Court's decision in
Seattle implicitly
rejected the argument that state action that reallocates
governmental power along racial lines can be immunized by the fact
that it specifically leaves intact rights guaranteed by the
Fourteenth Amendment. The fact that mandatory pupil reassignment
was still available as a remedy for
de jure segregation
did not alter the conclusion that an unconstitutional reallocation
of power had occurred with respect to those seeking to combat
de facto racial isolation in the public schools.
B
In my view, these principles inexorably lead to the conclusion
that California's Proposition I works an unconstitutional
reallocation of state power by depriving California courts of the
ability to grant meaningful relief to those seeking to vindicate
the State's guarantee against
de facto segregation in the
public schools. Despite Proposition I's apparent neutrality, it is
"beyond reasonable dispute,"
Seattle, ante at
458 U. S. 471,
and the majority today concedes, that
"court-ordered busing in
excess of that required by the
Fourteenth Amendment . . . prompted the initiation and probably the
adoption of Proposition I."
Ante at
458 U. S. 538,
n. 18 (emphasis in original). [
Footnote
2/1] Because "minorities may consider busing for integration to
be
legislation that is in their interest,'" Seattle,
ante at 474, quoting
Page 458 U. S. 555
Hunter v. Erickson, 393 U.S. at
393 U. S. 395
(Harlan, J., concurring), Proposition I is sufficiently "racial" to
invoke the
Hunter doctrine. [
Footnote 2/2]
Nor can there be any doubt that Proposition I works a
substantial reallocation of state power. Prior to the enactment of
Proposition I, those seeking to vindicate the rights enumerated by
the California Supreme Court in
Jackson v. Pasadena City School
District, 59 Cal. 2d
876, 382 P.2d 878 (1963), just as those interested in attaining
any other educational objective, followed a two-stage procedure.
First, California's minority community could attempt to convince
the local school board voluntarily to comply with its
constitutional obligation to take reasonably feasible steps to
eliminate racial isolation in the public schools. If the board was
either unwilling or unable to carry out its constitutional duty,
those seeking redress could petition the California state courts to
require school officials to live up to their obligations. Busing
could be required as part of a judicial remedial order.
Crawford I, 17 Cal. 3d at 310, 551 P.2d at 48.
Whereas Initiative 350 attempted to deny minority children the
first step of this procedure, Proposition I eliminates by fiat the
second stage: the ability of California courts to order meaningful
compliance with the requirements of the State Constitution. After
the adoption of Proposition I, the only method of enforcing against
a recalcitrant school board the state constitutional duty to
eliminate racial isolation is to petition either the state
legislature or the electorate as a whole. Clearly, the rules of the
game have been significantly
Page 458 U. S. 556
changed for those attempting to vindicate this state
constitutional right. [
Footnote
2/3]
The majority seeks to conceal the unmistakable effects of
Proposition I by calling it a "mere repeal" of the State's earlier
commitment to do "
more' than the Fourteenth Amendment
requires." Ante at 458 U. S. 535.
Although it is true that we have never held that the "mere repeal
of an existing [antidiscrimination] ordinance violates the
Fourteenth Amendment," Hunter v. Erickson, supra, at
393 U. S. 390,
n. 5, it is equally clear that the reallocation of governmental
power created by Proposition I is not a "mere repeal" within the
meaning of any of our prior decisions.
In
Dayton Bd. of Education v. Brinkman, 433 U.
S. 406 (1977), the new members of the Dayton Board of
Education repudiated a resolution drafted by their predecessors
admitting the Board's role in the establishment of a segregated
school system and calling for various remedial actions. In
Page 458 U. S. 557
concluding that the Board was constitutionally permitted to
withdraw its own prior
mea culpa, this Court was careful
to note that "
[t]he Board had not acted to undo operative
regulations affecting the assignment of pupils or other aspects of
the management of school affairs."
Id. at
433 U. S. 413
(emphasis added). Therefore, the only time that this Court has
squarely held that a "mere repeal" did not violate the Fourteenth
Amendment, it was presented with a situation where a governmental
entity rescinded its own prior statement of policy without
affecting any existing educational policy. It is no surprise that
such conduct passed constitutional muster.
By contrast, in
Seattle, Hunter, and
Reitman v.
Mulkey, 387 U. S. 369
(1967), [
Footnote 2/4] the three
times that this Court has explicitly rejected the argument that a
proposed change constituted a "mere repeal" of an existing policy,
the alleged rescission was accomplished by a governmental entity
other than the entity that had taken the initial action, and
resulted in a drastic alteration of the substantive effect of
existing policy. This case falls squarely within this latter
category. To be sure, the
right to be free from racial
isolation in the public schools remains unaffected by Proposition
I.
See ante at
458 U. S.
535-536;
see McKinny v. Oxnard Union High School
District Board of Trustees, 31 Cal. 3d 79,
92-93, 642 P.2d 460, 467 (1982). But Proposition I does repeal the
power of the state court to
enforce this existing
constitutional guarantee through the use of mandatory pupil
assignment and transfer.
The majority asserts that the Fourteenth Amendment does not
"require the people of a State to adhere to a judicial
construction of their State Constitution when that Constitution
itself vests final authority in the people."
Ante at
458 U. S. 540.
A state court's authority to order appropriate remedies for
Page 458 U. S. 558
state constitutional violations, however, is no more based on
the "final authority" of the people than the power of the local
Seattle School Board to make decisions regarding pupil assignment
is premised on the State's ultimate control of the educational
process. Rather, the authority of California courts to order
mandatory student assignments in this context springs from the same
source as the authority underlying other remedial measures adopted
by state and federal courts in the absence of statutory
authorization: the "courts power to provide equitable relief" to
remedy a constitutional violation.
Swann v.
Charlotte-Mecklenburg Board of Education, 402 U. S.
1,
402 U. S. 30
(1971);
Crawford I, 17 Cal. 3d at 307, 551 P.2d at 46 ("a
trial court may exercise broad equitable powers in formulating and
supervising a plan which the court finds will insure meaningful
progress to alleviate . . . school segregation"). Even assuming
that the source of a court's power to remedy a constitutional
violation can be traced back to "the people," the majority's
conclusion that "the people" can therefore confer that remedial
power on a discriminatory basis is plainly inconsistent with our
prior decisions. In
Hunter v. Erickson, 393 U.S. at
393 U. S. 392,
we struck down the referendum at issue even though the people of
Akron, Ohio, undoubtedly retained "final authority" for all
legislation. Similarly, in
Seattle, we concluded that the
reallocation of power away from local school boards offended the
Equal Protection Clause even though the State of Washington "is
ultimately responsible for providing education within its borders."
Ante at
458 U. S. 477.
The fact that this change was enacted through popular referendum,
therefore, cannot immunize it from constitutional review.
See
Lucas v. Colorado General Assembly, 377 U.
S. 713,
377 U. S.
736-737 (1964).
As in
Seattle, Hunter, and
Reitman,
Proposition I's repeal of the state court's enforcement powers was
the work of an independent governmental entity, and not of the
state courts themselves. That this repeal drastically alters the
substantive
Page 458 U. S. 559
rights granted by existing policy is patently obvious from the
facts of this litigation. [
Footnote
2/5] By prohibiting California courts from ordering mandatory
student assignment when necessary to eliminate racially isolated
schools, Proposition I has placed an enormous barrier between
minority children and the effective enjoyment of their
constitutional rights, a barrier that is not placed in the path of
those who seek to vindicate other rights granted by state law. This
Court's precedents demonstrate that, absent a compelling state
interest, which respondents have hardly demonstrated, such a
discriminatory barrier cannot stand. [
Footnote 2/6]
Page 458 U. S. 560
The fact that California attempts to cloak its discrimination in
the mantle of the Fourteenth Amendment does not alter this result.
Although it might seem "paradoxical" to some Members of this Court
that a referendum that adopts the wording of the Fourteenth
Amendment might violate it, the paradox is specious. Because of the
Supremacy Clause, Proposition I would have precisely the same legal
effect if it contained no reference to the Fourteenth Amendment.
The lesson of
Seattle is that a State, in prohibiting
conduct that is not required by the Fourteenth Amendment, may
nonetheless create a discriminatory reallocation of governmental
power that does violate equal protection. The fact that some less
effective avenues remain open to those interested in mandatory
student assignment to eliminate racial isolation, like the fact
that the voters in
Hunter conceivably might have enacted
fair housing legislation, or that those interested in busing to
eliminate racial isolation in
Seattle conceivably might
use the State's referendum process, does not justify the
discriminatory reallocation of governmental decisionmaking.
In this case, the reallocation of power occurs in the judicial
process -- the major arena minorities have used to ensure the
protection of rights "in their interest."
Hunter v. Erickson,
supra, at
393 U. S. 395
(Harlan, J., concurring). Certainly,
Hunter and
Seattle cannot be distinguished on the ground that they
concerned the reallocation of legislative power, whereas
Proposition I redistributes the inherent power of a court to tailor
the remedy to the violation. As we have long recognized, courts too
often have been "the sole practicable avenue open to a minority to
petition for redress of grievances."
NAACP v. Button,
371 U. S. 415,
371 U. S. 430
(1963).
See Reitman v. Mulkey, 387 U.S. at
387 U. S. 377
(invalidating state constitutional amendment because [t]he right to
discriminate, including the right to discriminate on racial
grounds, was now embodied in the State's basic charter, immune from
legislative, executive,
Page 458 U. S. 561
or judicial regulation at any level of the state
government") (emphasis added). It is no wonder, as the present case
amply illustrates, that whatever progress has been made towards the
elimination of
de facto segregation has come from the
California courts. Indeed, Proposition I, by denying full access to
the only branch of government that has been willing to address this
issue meaningfully, is far worse for those seeking to vindicate the
plainly unpopular cause of racial integration in the public schools
than a simple reallocation of an often unavailable and unresponsive
legislative process. To paraphrase,
"[i]t surely is an excessively formal exercise . . . to argue
that the procedural revisions at issue in
Hunter [and
Seattle] imposed special burdens on minorities, but that
the selective allocation of decisionmaking authority worked by
[Proposition I] does not erect comparable political obstacles."
Seattle, ante at
458 U. S. 475,
n. 17.
III
Even if the effects of Proposition I somehow can be
distinguished from the enactments at issue in
Hunter and
Seattle, the result reached by the majority today is still
plainly inconsistent with our precedents. Because it found that the
segregation of the California public schools violated the
Fourteenth Amendment, the state trial court never considered
whether Proposition I was itself unconstitutional because it was
the product of discriminatory intent. Despite the absence of any
factual record on this issue, the Court of Appeal rejected
petitioners' argument that the law was motivated by a
discriminatory intent on the ground that the recitation of several
potentially legitimate purposes in the legislation's preamble
rendered any claim that it had been enacted for an invidious
purpose "pure speculation."
113 Cal. App.
3d 633, 655,
170 Cal. Rptr.
495, 509 (1981).
In
Arlington Heights v. Metropolitan Housing Dev.
Corp., 429 U. S. 252,
429 U. S. 266
(1977), we declared that
"[d]etermining
Page 458 U. S. 562
whether invidious discriminatory purpose was a motivating factor
demands a sensitive inquiry into such circumstantial and direct
evidence of intent as may be available."
Petitioners assert that the disproportionate impact of
Proposition I, combined with the circumstances surrounding its
adoption and the history of opposition to integration cited
supra at
458 U. S.
548-551, clearly indicates the presence of
discriminatory intent.
See Brief for Petitioners 64-96.
Yet despite the fact that no inquiry has been conducted into these
allegations by either the trial or the appellate court, this Court,
in its haste to uphold the banner of "neighborhood schools,"
affirms a factual determination that was never made. Such blind
allegiance to the conclusory statements of a lower court is plainly
forbidden by our prior decisions. [
Footnote 2/7]
IV
Proposition I is in some sense "better" than the Washington
initiative struck down in Seattle. [
Footnote 2/8] In their generosity, California voters
have allowed those seeking racial balance to petition the very
school officials who have steadfastly maintained the color line at
the schoolhouse door to comply voluntarily with their continuing
state constitutional duty to desegregate. At the same time, the
voters have deprived minorities of the only method of redress that
has proved effective the full remedial powers of the state
judiciary. In the name of the State's "ability to experiment,"
ante at
458 U. S. 535,
the Court today allows this placement of yet another burden
Page 458 U. S. 563
in the path of those seeking to counter the effects of nearly
three centuries of racial prejudice. Because this decision is
neither justified by our prior decisions nor consistent with our
duty to guarantee all citizens the equal protection of the laws, I
must dissent.
[
Footnote 2/1]
Just as in
Seattle, the fact that other types of
student transfers conceivably might be prohibited does not alter
this conclusion:
"Neither the initiative's sponsors, nor the District Court, nor
the Court of Appeals had any difficulty perceiving the racial
nature of the issue settled by"
Proposition I.
Seattle, ante at
458 U. S. 471.
Indeed in their response to the petition for certiorari,
respondents characterized Proposition I as addressing but "one
narrow area: the power of a state court to order mandatory student
assignment or transportation as a desegregation remedy." Brief in
Opposition 9.
[
Footnote 2/2]
It is therefore irrelevant whether the "benefits of neighborhood
schooling are racially neutral," as the majority asserts.
Ante at
458 U. S. 544;
see ante at
458 U. S. 537.
In
Seattle, ante, at
458 U. S. 472,
we specifically rejected the argument that, because some minorities
as well as whites supported the initiative, it could not be
considered a racial classification.
[
Footnote 2/3]
There can be no question that the practical effect of
Proposition I will be to deprive state courts of "the sole and
exclusive means of eliminating racial segregation in the schools."
San Francisco United School District v.
Johnson, 3 Cal. 3d 937,
943, 479 P.2d 669, 671 (1971). As we have often noted,
"bus transportation has long been an integral part of all public
educational systems, and it is unlikely that a truly effective
remedy could be devised without continued reliance upon it."
North Carolina Board of Ed. v. Swann, 402 U. S.
43,
402 U. S. 46
(1971). Moreover, Proposition I prevents a state court from
ordering school officials to take any action respecting
pupil
school assignment, as well as pupil transportation.
Presumably, state courts could not design a remedy involving the
"pairing" or "clustering" of schools, even if such a remedy did not
involve
any "busing." In the present case, the state trial
court found that the voluntary programs proposed by the Los Angeles
School Board were "constitutionally suspect" because they "place[d]
the burden of relieving the racial isolation of the minority
student upon the minority student." App. 160. Consequently, since
"a voluntary program would not serve to integrate the community's
schools,"
Seattle, ante at
458 U. S. 473,
n. 16, Proposition I, like the measures at issue in
Lee v.
Nyquist, 318 F.
Supp. 710 (WDNY 1970) (three-judge court),
summarily
aff'd, 402 U.S. 935 (1971), and
Seattle, precludes
the effective enjoyment by California's minority children of their
right to eliminate racially isolated schools.
[
Footnote 2/4]
In
Reitman v. Mulkey, this Court struck down another
California ballot measure, granting every resident the absolute
constitutional right to sell or rent his property to whomever he or
she chooses. We held that the provision amounted to an
unconstitutional authorization of private discrimination.
[
Footnote 2/5]
Indeed Proposition I, by its express terms, allows for the
modification of existing plans upon the application of any
interested person. Art. 1, § 7(a).
[
Footnote 2/6]
As the majority notes, Proposition I states that the "people of
the State of California find and declare that this amendment is
necessary to serve compelling public interests," including,
inter alia, "making the most efficient use of . . .
limited financial resources," protecting the "health and safety" of
all students, preserving "harmony and tranquility," and "protecting
the environment."
Ante at
458 U. S. 533,
n. 6. These purported justifications, while undoubtedly
meritorious, are clearly insufficient to sustain the racial
classification established by Proposition I. As we have often
noted, racial classifications may only be upheld where "necessary,
and not merely rationally related, to the accomplishment of a
permissible state policy."
McLaughlin v. Florida,
379 U. S. 184,
379 U. S. 196
(1964). It goes without saying that a self-serving conclusory
statement of necessity will not suffice to fulfill this burden.
See Swann v. Charlotte-Mecklenburg Board of Education,
402 U. S. 1,
402 U. S. 28,
29-31 (1971) (rejecting a similar list of justifications for
establishing a racial classification).
"In any event, [respondents] have failed to show that the
purpose[s] they impute to the [Proposition] could not be
accomplished by alternative methods not involving racial
distinctions."
Lee v. Nyquist, 318 F.
Supp. at 720.
Parenthetically, it is interesting to note that the allegedly
compelling interest in establishing "neighborhood schools" so often
referred to by the majority appears nowhere in the official list of
justifications. The absence of any mention of this supposed
justification is not surprising in light of the fact that the
Proposition's ban on student "assignment" effectively prevents
desegregation remedies that would not require a student to leave
his "neighborhood."
See 458
U.S. 527fn2/3|>n. 3,
supra.
[
Footnote 2/7]
The majority's reliance on
Reitman v. Mulkey,
387 U. S. 369
(1967), is therefore misplaced. How can any deference be given to
the state court's "knowledge of the facts and circumstances
concerning the passage and potential impact" of Proposition I,
id. at
387 U. S. 378,
when no such findings were ever made.
[
Footnote 2/8]
Initiative 350, however, at least did "not hinder [the] State
from enforcing [the State] Constitution."
Seattle, ante at
458 U. S. 490,
n. 3 (POWELL, J., dissenting).