Washington v. Seattle Sch. Dist. No. 1,
Annotate this Case
458 U.S. 457 (1982)
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U.S. Supreme Court
Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982)
Washington v. Seattle School District No. 1
Argued March 22, 1982
Decided June 30, 1982
458 U.S. 457
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
In 1978, appellee Seattle School District No. 1 (District) enacted the so-called Seattle Plan for desegregation of its schools. The plan makes extensive use of mandatory busing. Subsequently, a statewide initiative (Initiative 350) was drafted to terminate the use of mandatory busing for purposes of racial integration in the public schools of the State of Washington. The initiative prohibits school boards from requiring any student to attend a school other than the one geographically nearest or next nearest to his home. It sets out a number of broad exceptions to this requirement, however: a student may be assigned beyond his neighborhood school if he requires special educational programs, or if the nearest or next nearest school is overcrowded or unsafe, or if it lacks necessary physical facilities. These exceptions permit school boards to assign students away from their neighborhood schools for virtually all of the nonintegrative purposes required by their educational policies. After the initiative was passed at the November, 1978, general election, the District, together with two other districts, brought suit against appellant State in Federal District Court, challenging the constitutionality of Initiative 350 under the Equal Protection Clause of the Fourteenth Amendment. The District Court held the initiative unconstitutional on the ground, inter alia, that it established an impermissible racial classification in violation of Hunter v. Erickson, 393 U. S. 385, and Lee v. Nyquist, 318 F.Supp. 710 (WDNY), summarily aff'd, 402 U.S. 935, "because it permits busing for non-racial reasons but forbids it for racial reasons." The court permanently enjoined implementation of the initiative's restrictions. The Court of Appeals affirmed.
Held: Initiative 350 violates the Equal Protection Clause. Pp. 458 U. S. 467-487.
(a) When a State allocates governmental power nonneutrally, by explicitly using the racial nature of a decision to determine the decisionmaking process, its action "places special burdens on racial minorities within the governmental process," Hunter v. Erickson, 393 U.S. at 393 U. S. 391, 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." Id. at 393 U. S. 395. Such a structuring of the political
(b) Initiative 350 must fall because it does "not attemp[t] to allocate governmental power on the basis of any general principle," Hunter v. Erickson, 393 U.S. at 393 U. S. 395, but instead uses the racial nature of an issue to define the governmental decisionmaking structure, thus imposing substantial and unique burdens on racial minorities. The initiative worked a major reordering of the State's educational decisionmaking process. Before adoption of the initiative, the power to determine what programs would most appropriately fill a school district's educational needs -- including programs involving student assignment and desegregation -- was committed to the local board's discretion. After passage of Initiative 350, authority over all but one of these areas remained in the local board's hands. By placing power over desegregative busing at the state level, the initiative thus "differentiates between the treatment of problems involving racial matters and that afforded other problems in the same area." Lee v. Nyquist, 318 F.Supp. at 718. And Initiative 350 works something more than the "mere repeal" of a desegregation law by the political entity that created it. It burdens all future attempts to integrate Washington schools by lodging decisionmaking authority over the question at a new and remote level of government. This makes the enactment of racially beneficial legislation uniquely difficult, and therefore imposes direct and undeniable burdens on minority interests. Pp 458 U. S. 470-484.
(c) Contrary to appellants' suggestion, Hunter v. Erickson was not effectively overruled by Washington v. Davis, 426 U. S. 229, and Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252. While Washington v. Davis and Arlington Heights considered classifications facially unrelated to race, Hunter -- like this case -- involved an attempt to use explicitly racial criteria to define the community's decisionmaking structure. In so doing, the legislation at issue there directly and invidiously curtailed "the operation of those political processes ordinarily to be relied upon to protect minorities." United States v. Carolene Products Co., 304 U. S. 144, 304 U. S. 152-153, n. 4. Hunter's principle -- that meaningful and unjustified distinctions based on race are impermissible -- is still vital. Pp. 458 U. S. 484-487.
633 F.2d 1338, affirmed.
BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, and STEVENS, JJ., joined. POWELL, J., filed a dissenting opinion, in which BURGER, C.J., and REHNQUIST and O'CONNOR, JJ., joined, post, p. 458 U. S. 488.
JUSTICE BLACKMUN delivered the opinion of the Court.
We are presented here with an extraordinary question: whether an elected local school board may use the Fourteenth Amendment to defend its program of busing for integration from attack by the State.
Seattle School District No. 1 (District), which is largely coterminous with the city of Seattle, Wash., is charged by state law with administering 11 schools and educating approximately 54,000 public school students. About 37% of these
children are of Negro, Asian, American Indian, or Hispanic ancestry. Because segregated housing patterns in Seattle have created racially imbalanced schools, the District historically has taken steps to alleviate the isolation of minority students; since 1963, it has permitted students to transfer from their neighborhood schools to help cure the District's racial imbalance. [Footnote 1]
Despite these efforts, the District in 1977 came under increasing pressure to accelerate its program of desegregation. [Footnote 2] In response, the District's Board of Directors (School Board) enacted a resolution defining "racial imbalance" as
"the situation that exists when the combined minority student enrollment in a school exceeds the district-wide combined average by 20 percentage points, provided that the single minority enrollment . . . of no school will exceed 50 percent of the student body."
473 F.Supp. 996, 1006 (WD Wash.1979). The District resolved to eliminate all such imbalance from the Seattle public schools by the beginning of the 1979-1980 academic year. [Footnote 3]
In September, 1977, the District implemented a "magnet" program, designed to alleviate racial isolation by enhancing educational offerings at certain schools, thereby encouraging voluntary student transfers. A "disproportionate amount of the overall movement" inspired by the program was undertaken by Negro students, however, ibid., and racial imbalance in the Seattle schools was found to have actually increased between the 1970-1971 and 1977-1978 academic years. The District therefore concluded that mandatory reassignment of students was necessary if racial isolation in its schools was to be eliminated. Accordingly, in March, 1978, the School Board enacted the so-called "Seattle Plan" for desegregation. The plan, which makes extensive use of busing and mandatory reassignments, desegregates elementary schools by "pairing" and "trading" predominantly minority with predominantly white attendance areas, and by basing student assignments on attendance zones, rather than on race. The racial makeup of secondary schools is moderated by "feeding" them from the desegregated elementary schools. App. 143-143. The District represents that the plan results in the reassignment of roughly equal numbers of white and minority students, and allows most students to spend roughly half of their academic careers attending a school near their homes. Brief for Appellee Seattle School District No. 1, p. 5.
The desegregation program, implemented in the 1978-1979 academic year, apparently was effective: the District Court found that the Seattle Plan
"has substantially reduced the number of racially imbalanced schools in the district and has substantially reduced the percentage of minority students in those schools which remain racially imbalanced."
473 F.Supp. at 1007.
In late 1977, shortly before the Seattle Plan was formally adopted by the District, a number of Seattle residents who opposed the desegregation strategies being discussed by the School Board formed an organization called the Citizens for
Voluntary Integration Committee (CiVIC). This organization, which the District Court found "was formed because of its founders' opposition to The Seattle Plan," ibid., attempted to enjoin implementation of the Board's mandatory desegregation program through litigation in state court; when these efforts failed, CiVIC drafted a statewide initiative designed to terminate the use of mandatory busing for purposes of racial integration. [Footnote 4] This proposal, known as Initiative 350, provided that
"no school board . . . shall directly or indirectly require any student to attend a school other than the school which is geographically nearest or next nearest the student's place of residence . . . and which offers the course of study pursued by such student. . . ."
See Wash.Rev.Code § 28A.26.010 (1981). [Footnote 5] The initiative then set out, however, a number of broad exceptions to this requirement: a student may be assigned beyond his neighborhood school if he "requires special education, care or guidance," or if
"there are health or safety hazards, either natural or man made, or physical barriers or obstacles . . . between the student's place of residence and the nearest or next nearest school,"
"the school nearest or next nearest to his place of residence is unfit or inadequate because of overcrowding, unsafe conditions or lack of physical facilities."
See ibid. Initiative 350 also specifically proscribed use of seven enumerated methods of "indirec[t]" student assignment -- among them the redefinition of attendance zones, the pairing of schools, and the use of
"feeder" schools -- that are a part of the Seattle Plan. See § 28A.26.030. The initiative envisioned busing for racial purposes in only one circumstance: it did not purport to "prevent any court of competent jurisdiction from adjudicating constitutional issues relating to the public schools." See § 28A.26.060.
Its proponents placed Initiative 350 on the Washington ballot for the November, 1978, general election. During the ensuing campaign, the District Court concluded, the leadership of CiVIC "acted legally and responsibly," and did not address "its appeals to the racial biases of the voters." 473 F.Supp. at 1009. At the same time, however, the court's findings demonstrate that the initiative was directed solely at desegregative busing in general, and at the Seattle Plan in particular. Thus,
"[e]xcept for the assignment of students to effect racial balancing, the drafters of Initiative 350 attempted to preserve to school districts the maximum flexibility in the assignment of students,"
id. at 1008, and, "[e]xcept for racially balancing purposes," the initiative
"permits local school districts to assign students other than to their nearest or next nearest schools for most, if not all, of the major reasons for which students are at present assigned to schools other than their nearest or next nearest schools."
Id. at 1010. [Footnote 6] In campaigning for the measure, CiVIC officials accurately represented that its passage would result in "no loss of school district flexibility other than in busing for desegregation purposes," id. at 1008, and it is evident that the campaign focused almost exclusively on the wisdom of "forced busing" for integration. See id. at 1009.
On November 8, 1978, two months after the Seattle Plan went into effect, Initiative 350 passed by a substantial margin, drawing almost 66% of the vote statewide. The initiative failed to attract majority support in two state legislative
districts, both in Seattle. In the city as a whole, however, the initiative passed with some 61% of the vote. Within the month, the District, together with the Tacoma and Pasco School Districts, [Footnote 7] initiated this suit against the State in the United States District Court for the Western District of Washington, challenging the constitutionality of Initiative 350 under the Equal Protection Clause of the Fourteenth Amendment. The United States and several community organizations intervened in support of the District; [Footnote 8] CiVIC intervened on behalf of the defendants.
After a 9-day trial, the District Court made extensive and detailed findings of fact. The court determined that "[t]hose Seattle schools which are most crowded are located in those areas of the city where the preponderance of minority families live." Id. at 1001. Yet the court found that Initiative 350, if implemented,
"will prevent the racial balancing of a significant number of Seattle schools, and will cause the school system to become more racially imbalanced than it presently is,"
"will make it impossible for Tacoma schools to maintain their present racial balance," and will make "doubtful" the
prospects for integration of the Pasco schools. Id. at 1010; see id. at 1001, 1011. Except for desegregative busing, however, the court found that "almost all of the busing of students currently taking place in [Washington] is permitted by Initiative 350." Id. at 1010. And while the court found that "racial bias . . . is a factor in the opposition to the busing' of students to obtain racial balance," id. at 1001, it also found that voters were moved to support Initiative 350 for "a number of reasons," so that "[i]t is impossible to ascertain all of those reasons [o]r to determine the relative impact of those reasons upon the electorate." Id. at 1010.
The District Court then held Initiative 350 unconstitutional for three independent reasons. The court first concluded that the initiative established an impermissible racial classification in violation of 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), "because it permits busing for non-racial reasons, but forbids it for racial reasons." 473 F.Supp. at 1012. The court next held Initiative 350 invalid because "a racially discriminatory purpose was one of the factors which motivated the conception and adoption of the initiative." Id. at 1013. [Footnote 9] Finally, the District Court reasoned that Initiative 350 was unconstitutionally overbroad, because, in the absence of a
court order it barred even school boards that had engaged in de jure segregation from taking steps to foster integration. [Footnote 10] Id. at 1016. The court permanently enjoined implementation of the initiative's restrictions.
On the merits, a divided panel of the United States Court of Appeals for the Ninth Circuit affirmed, relying entirely on the District Court's first rationale. 633 F.2d 1338 (1980). [Footnote 11] By subjecting desegregative student assignments to unique treatment, the Court of Appeals concluded, Initiative 350
"both creates a constitutionally suspect racial classification and radically restructures the political process of Washington by allowing a statewide majority to usurp traditional local authority over local school board educational policies."
Id. at 1344. In doing so, the court continued, the initiative
"remove[s] from local school boards their existing authority, and in large part their capability, to enact programs designed to desegregate the schools."
Id. at 1346 (emphasis in original and footnote omitted). The court found such a result contrary to the principles of Hunter v. Erickson, supra, and Lee v. Nyquist, supra. The court acknowledged that the issue would be a different one had a successor school board attempted to rescind the Seattle Plan. Here, however,
"a different governmental body -- the state-wide electorate -- rescinded a policy voluntarily enacted by locally elected school boards already subject to local political control."
633 F.2d at 1346. [Footnote 12]
The State and various state officers appealed to this Court. We noted probable jurisdiction to address an issue of significance to our Nation's system of education. 454 U.S. 890 (1981).
The Equal Protection Clause of the Fourteenth Amendment guarantees racial minorities the right to full participation in the political life of the community. It is beyond dispute, of course, that given racial or ethnic groups may not be denied the franchise, or precluded from entering into the political process in a reliable and meaningful manner. See White v. Regester, 412 U. S. 755 (1973); Nixon v. Herndon, 273 U. S. 536 (1927). But the Fourteenth Amendment also reaches "a political structure that treats all individuals as equals," Mobile v. Bolden, 446 U. S. 55, 446 U. S. 84 (1980) (STEVENS, J., concurring in judgment), yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation. This principle received its clearest expression in Hunter v. Erickson, supra, a case that involved attempts to overturn antidiscrimination legislation in Akron, Ohio. The Akron City Council, pursuant to its ordinary legislative processes, had enacted a fair housing ordinance. In response, the local citizenry, using an established referendum procedure, see 393 U.S. at 393 U. S. 390, and n. 6; id. at 393 U. S. 393-394, and n. (Harlan, J., concurring), amended the city charter to provide that ordinances regulating real estate transactions
"'on the basis of race, color, religion, national origin or ancestry must first be approved by a majority of the electors voting on the question at a regular or general election before said ordinance shall be
Id. at 393 U. S. 387. This action
"not only suspended the operation of the existing ordinance forbidding housing discrimination, but also required the approval of the electors before any future [fair housing] ordinance could take effect."
Id. at 393 U. S. 389-390. In essence, the amendment changed the requirements for the adoption of one type of local legislation: to enact an ordinance barring housing discrimination on the basis of race or religion, proponents had to obtain the approval of the City Council and of a majority of the voters city-wide. To enact an ordinance preventing housing discrimination on other grounds, or to enact any other type of housing ordinance, proponents needed the support of only the City Council.
In striking down the charter amendment, the Hunter Court recognized that, on its face, the provision "draws no distinctions among racial and religious groups." Id. at 393 U. S. 390. But it did differentiate
"between those groups who sought the law's protection against racial . . . discriminatio[n] in the sale and rental of real estate and those who sought to regulate real property transactions in the pursuit of other ends,"
"disadvantag[ing] those who would benefit from laws barring racial . . . discriminatio[n] as against those who would bar other discriminations or who would otherwise regulate the real estate market in their favor."
Id. at 393 U. S. 391. In "reality," the burden imposed by such an arrangement necessarily
"falls on the minority. The majority needs no protection against discrimination, and, if it did, a referendum might be bothersome, but no more than that."
Ibid. In effect, then, the charter amendment served as an "explicitly racial classification treating racial housing matters differently from other racial and housing matters." Id. at 393 U. S. 389. This made the amendment constitutionally suspect:
"the State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person's vote or give any group a smaller representation than another of comparable size."
Id. at 393 U. S. 393 (emphasis added).
Lee v. Nyquist, 318 F.Supp. 710 (WDNY 1970) (three-judge court), offers an application of the Hunter doctrine in a setting strikingly similar to the one now before us. That case involved the New York education system, which made use of both elected and appointed school boards and which conferred extensive authority on state education officials. In an effort to eliminate de facto segregation in New York's schools, those officials had directed the city of Buffalo -- a municipality with an appointed school board -- to implement an integration plan. While these developments were proceeding, however, the New York Legislature enacted a statute barring state education officials and appointed -- though not elected -- school boards from
"assign[ing] or compell[ing] [students] to attend any school on account of race . . . or for the purpose of achieving [racial] equality in attendance . . . at any school."
Id. at 712. [Footnote 13]
Applying Hunter, the three-judge District Court invalidated the statute, noting that, under the provision,
"[t]he Commissioner [of Education] and local appointed officials are prohibited from acting in [student assignment] matters only where racial criteria are involved."
Id. at 719. In the court's view, the statute therefore "place[d] burdens on the implementation of educational policies designed to deal with race on the local level" by
"treating educational matters involving racial criteria differently from other educational matters and making it more difficult to deal with racial imbalance in the public schools."
Ibid. (emphasis in original). This drew an impermissible distinction "between the treatment of problems involving racial matters and that afforded other problems in the same area." Id. at 718. This Court affirmed the District Court's judgment without opinion. 402 U.S. 935 (1971).
These cases yield a simple but central principle. As Justice Harlan noted while concurring in the Court's opinion in
Hunter, laws structuring political institutions or allocating political power according to "neutral principles" -- such as the executive veto, or the typically burdensome requirements for amending state constitutions -- are not subject to equal protection attack, though they may "make it more difficult for minorities to achieve favorable legislation." 393 U.S. at 393 U. S. 394. Because such laws make it more difficult for every group in the community to enact comparable laws, they "provid[e] a just framework within which the diverse political groups in our society may fairly compete." Id. at 393 U. S. 393. Thus, the political majority may generally restructure the political process to place obstacles in the path of everyone seeking to secure the benefits of governmental action. But a different analysis is required when the State allocates governmental power nonneutrally, by explicitly using the racial nature of a decision to determine the decisionmaking process. State action of this kind, the Court said, "places special burdens on racial minorities within the governmental process," id. at 393 U. S. 391 (emphasis added), 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."
Id. at 393 U. S. 395 (emphasis added) (Harlan, J., concurring). Such a structuring of the political process, the Court said, was "no more permissible than [is] denying [members of a racial minority] the vote, on an equal basis with others." Id. at 393 U. S. 391.
We believe that the Court of Appeals properly focused on Hunter and Lee, for we find the principle of those cases dispositive of the issue here. In our view, Initiative 350 must fall because it does "not attemp[t] to allocate governmental power on the basis of any general principle." Hunter v. Erickson, 393 U.S. at 393 U. S. 395 (Harlan, J., concurring). Instead, it uses the racial nature of an issue to define the governmental decisionmaking structure, and thus imposes substantial and unique burdens on racial minorities.
Noting that Initiative 350 nowhere mentions "race" or "integration," appellants suggest that the legislation has no racial overtones; they maintain that Hunter is inapposite because the initiative simply permits busing for certain enumerated purposes, while neutrally forbidding it for all other reasons. We find it difficult to believe that appellants' analysis is seriously advanced, however, for, despite its facial neutrality, there is little doubt that the initiative was effectively drawn for racial purposes. 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 Initiative 350. Thus, the District Court found that the text of the initiative was carefully tailored to interfere only with desegregative busing. [Footnote 14] Proponents of the initiative candidly "represented that there would be no loss of school district flexibility other than in busing for desegregation purposes." 473 F.Supp. at 1008. And, as we have noted, Initiative 350, in fact, allows school districts to bus their students "for most, if not all," of the nonintegrative purposes required by their educational policies. Id. at 1010. The Washington electorate surely was aware of this, for it was "assured" by CiVIC officials that "99% of the school districts in the state'" -- those that lacked mandatory integration programs -- "would not be affected by the passage of 350." Id. at 1008-1009. It is beyond reasonable dispute, then, that the initiative was enacted "`because of,' not merely `in spite of,' its adverse effects upon" busing for integration. Personnel Administrator of Massachusetts v. Feeney, 442 U. S. 256, 442 U. S. 279 (1979).
Even accepting the view that Initiative 350 was enacted for such a purpose, the United States -- which has changed its position during the course of this litigation, and now supports the State --maintains that busing for integration, unlike the
fair housing ordinance involved in Hunter, is not a peculiarly "racial" issue at all. Brief for United States 17, n. 18. Again, we are not persuaded. It undoubtedly is true, as the United States suggests, that the proponents of mandatory integration cannot be classified by race: Negroes and whites may be counted among both the supporters and the opponents of Initiative 350. And it should be equally clear that white as well as Negro children benefit from exposure to "ethnic and racial diversity in the classroom." Columbus Board of Education v. Penick, 443 U. S. 449, 443 U. S. 486 (1979) (POWELL, J., dissenting). See Milliken v. Bradley, 418 U. S. 717, 418 U. S. 783 (1974) (MARSHALL, J., dissenting). [Footnote 15] But neither of these factors serves to distinguish Hunter, for we may fairly assume that members of the racial majority both favored and benefited from Akron's fair housing ordinance. Cf. Havens Realty Corp. v. Coleman, 455 U. S. 363, 455 U. S. 376-377, and n. 17 (1982); Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91, 441 U. S. 111, 441 U. S. 115 (1979).
In any event, our cases suggest that desegregation of the public schools, like the Akron open housing ordinance, at bottom inures primarily to the benefit of the minority, and is designed for that purpose. Education has come to be
"a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment."
measure of success only if they learn to function in -- and are fully accepted by -- the larger community. Attending an ethnically diverse school may help accomplish this goal by preparing minority children "for citizenship in our pluralistic society," Estes v. Metropolitan Branches of Dallas NAACP, 444 U. S. 437, 444 U. S. 451 (1980) (POWELL, J., dissenting), while, we may hope, teaching members of the racial majority "to live in harmony and mutual respect" with children of minority heritage. Columbus Board of Education v. Penick, 443 U.S. at 443 U. S. 485, n. 5 (POWELL, J., dissenting). Lee v. Nyquist settles this point, for the Court there accepted the proposition that mandatory desegregation strategies present the type of racial issue implicated by the Hunter doctrine. [Footnote 16]
It is undeniable that busing for integration -- particularly when ordered by a federal court -- now engenders considerably more controversy than does the sort of fair housing ordinance debated in Hunter. See Estes v. Metropolitan Branches of Dallas NAACP, 444 U.S. at 444 U. S. 448-451 (POWELL,
J., dissenting). But in the absence of a constitutional violation, the desirability and efficacy of school desegregation are matters to be resolved through the political process. For present purposes, it is enough that minorities may consider busing for integration to be "legislation that is in their interest." Hunter v. Erickson, 393 U.S. at 393 U. S. 395 (Harlan, J., concurring). Given the racial focus of Initiative 350, this suffices to trigger application of the Hunter doctrine.
We are also satisfied that the practical effect of Initiative 350 is to work a reallocation of power of the kind condemned in Hunter. The initiative removes the authority to address a racial problem -- and only a racial problem -- from the existing decisionmaking body in such a way as to burden minority interests. Those favoring the elimination of de facto school segregation now must seek relief from the state legislature, or from the statewide electorate. Yet authority over all other student assignment decisions, as well as over most other areas of educational policy, remains vested in the local school board. Indeed, by specifically exempting from Initiative 350's proscriptions most nonracial reasons for assigning students away from their neighborhood schools, the initiative expressly requires those championing school integration to surmount a considerably higher hurdle than persons seeking comparable legislative action. As in Hunter, then, the community's political mechanisms are modified to place effective decisionmaking authority over a racial issue at a different level of government. [Footnote 17] In a very obvious sense, the initiative
thus "disadvantages those who would benefit from laws barring" de facto desegregation "as against those who . . . would otherwise regulate" student assignment decisions; "the reality is that the law's impact falls on the minority." Hunter v. Erickson, 393 U.S. at 393 U. S. 391.
The state appellants and the United States, in response to this line of analysis, argue that Initiative 350 has not worked any reallocation of power. They note that the State necessarily retains plenary authority over Washington's system of education, and therefore they suggest that the initiative
amounts to nothing more than an unexceptional example of a State's intervention in its own school system. In effect, they maintain that the State functions as a "super school board," Tr. of Oral Arg. 5, 17, which typically involves itself in all areas of educational policy. And, the argument continues, if the State is the body that usually makes decisions in this area, Initiative 350 worked a simple change in policy, rather than a forbidden reallocation of power. Cf. Crawford v. Los Angeles Board of Education, post, p. 458 U. S. 527.
This, at first glance, would seem to be a potent argument, for States traditionally have been accorded the widest latitude in ordering their internal governmental processes, see Holt Civic Club v. Tuscaloosa, 439 U. S. 60, 439 U. S. 71 (1978), and school boards, as creatures of the State, obviously must give effect to policies announced by the state legislature. But
"insisting that a State may distribute legislative power as it desires . . . furnish[es] no justification for a legislative structure which otherwise would violate the Fourteenth Amendment. Nor does the implementation of this change through popular referendum immunize it."
Hunter v. Erickson, 393 U.S. at 393 U. S. 392. The issue here, after all, is not whether Washington has the authority to intervene in the affairs of local school boards; it is, rather, whether the State has exercised that authority in a manner consistent with the Equal Protection Clause. As the Court noted in Hunter:
"[T]hough Akron might have proceeded by majority vote . . . on all its municipal legislation, it has instead chosen a more complex system. Having done so, the State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person's vote."
to make use of a more complex governmental structure, and a close examination both of the Washington statutes and of the Court's decisions in related areas convinces us that Hunter is fully applicable here.
At the outset, it is irrelevant that the State might have vested all decisionmaking authority in itself, so long as the political structure it in fact erected imposes comparative burdens on minority interests; that much is settled by Hunter and by Lee. [Footnote 19] And until the passage of Initiative 350, Washington law in fact had established the local school board, rather than the State, as the entity charged with making decisions of the type at issue here. Like all 50 States, see Brief for National School Boards Assn. as Amicus Curiae 11, 116, Washington, of course, is ultimately responsible for providing education within its borders, see Wash. Const., Art. IX; Wash.Rev.Code § 28A.02.010 (1981); ch. 28A.41 (establishing a uniform school financing system); Seattle School District No. 1 v. State, 90 Wash.2d 476, 585 P.2d 71 (1978), and it therefore has set certain procedural requirements and minimum educational standards to be met by each school. See, e.g., §§ 28A.01.010, 28A.01.020 (length of school day and year); ch. 28A.27 (mandatory attendance); ch. 28A.67 (teacher qualifications); ch. 28A.05 and §§ 28A.58.75028A.58.754 (curriculum). But Washington has chosen to meet its educational responsibilities primarily through "state and local officials, boards, and committees," § 28A.02.020, and the responsibility to devise and tailor educational programs
to suit local needs has emphatically been vested in the local school boards.
Thus, "each common school district board of directors" is made "accountable for the proper operation of [its] district to the local community and its electorate." § 28A.58.758(1). To this end, each school board is "vested with the final responsibility for the setting of policies ensuring quality in the content and extent of its educational program" (emphasis added). Ibid. School boards are given responsibility for, among many other things, "[e]stablish[ing] performance criteria" for personnel and programs, for assigning staff "according to board enumerated classroom and program needs," for setting requirements concerning hours of instruction, for establishing curriculum standards "relevant to the particular needs of district students or the unusual characteristics of the district," and for evaluating teaching materials. § 28A.58.758(2). School boards are generally directed to "develop a program identifying student learning objectives for their district[s]," § 28A.58.090; see also § 28A.58.092, to select instructional materials, § 28A.58.103, to stock libraries as they deem necessary, § 28A.58.104, and to initiate a variety of optional programs. See, e.g., §§ 28A.34.010, 28A.35.010, 28A.58.105. School boards, of course, are given broad corporate powers. §§ 28A.58.010, 28A.58.075, 28A.59.180. Significantly for present purposes, school boards are directed to determine which students should be bused to school, and to provide those students with transportation. § 28A.24.055.
Indeed, the notion of school board responsibility for local educational programs is so firmly rooted that local boards are subject to disclosure and reporting provisions specifically designed to ensure the board's "accountability" to the people of the community for "the educational programs in the school distric[t]." § 28A.58.758(3). And, perhaps most relevant here, before the adoption of Initiative 350, the Washington Supreme Court had found it within the general discretion of
local school authorities to settle problems related to the denial of "equal educational opportunity." [Footnote 20] Citizens Against Mandatory Busing v. Palmason, 80 Wash.2d 445, 453, 495 P.2d 657, 663 (1972). It therefore had squarely held that a program of desegregative busing was a proper means of furthering the school board's responsibility to "administe[r] the schools in such a way as to provide a sound education for all children." Id. at 456, 495 P.2d at 664. [Footnote 21] See State ex rel. Citizens Against Mandatory Busing v. Brooks, 80 Wash.2d 121, 492 P.2d 536 (1972); State ex rel. Lukens v. Spokane School District No. 81, 147 Wash. 467, 474, 266 P. 189, 191 (1928). [Footnote 22]
Given this statutory structure, we have little difficulty concluding that Initiative 350 worked a major reordering of the State's educational decisionmaking process. Before adoption of the initiative, the power to determine what programs would most appropriately fill a school district's educational needs -- including programs involving student assignment and desegregation -- was firmly committed to the local board's
discretion. The question whether to provide an integrated learning environment, rather than a system of neighborhood schools, surely involved a decision of that sort. See Citizens Against Mandatory Busing v. Palmason, 80 Wash.2d at 459-460, 495 P.2d at 666-667. After passage of Initiative 350, authority over all but one of those areas remained in the hands of the local board. By placing power over desegregative busing at the state level, then, Initiative 350 plainly "differentiates between the treatment of problems involving racial matters and that afforded other problems in the same area." Lee v. Nyqist, 318 F.Supp. at 718. [Footnote 23] The District Court and the Court of Appeals similarly concluded that the initiative restructured the Washington political process, and we see no reason to challenge the determinations of courts familiar with local law. Cf. Milliken v. Bradley, 418 U.S. at 418 U. S. 769 (WHITE, J., dissenting).
That we reach this conclusion should come as no surprise, for, when faced with a similar educational scheme in Milliken
v. Bradley, supra, [Footnote 24] the Court concluded that the actions of a local school board could not be attributed to the State that had created it. We there addressed the Michigan education system, which vests in the State constitutional responsibility for providing education:
"'The policy of [Michigan] has been to retain control of its school system, to be administered throughout the State under State laws by local State agencies . . . to carry out the delegated functions given [them] by the legislature.'"
Milliken v. Bradley, 418 U.S. at 418 U. S. 794 (MARSHALL, J., dissenting), quoting School District of City of Lansing v. State Board of Education, 367 Mich. 591, 595, 116 N.W.2d 866, 868 (1962). See Milliken v. Bradley, 418 U.S. at 418 U. S. 726, n. 5. To fulfill this responsibility, the State of Michigan provided a substantial measure of school district funding, established standards for teacher certification, determined part of the curriculum, set a minimum school term, approved bus routes and textbooks, established disciplinary procedures, and, under certain circumstances, had the power even to remove local school board members. See id. at 418 U. S. 795-796 (MARSHALL, J., dissenting). See also id. at 418 U. S. 726, n. 5, 418 U. S. 727 (describing state controls over education); id. at 418 U. S. 768, and n. 4 (WHITE, J., dissenting) (same); id. at 418 U. S. 794 (MARSHALL, J., dissenting) (same).
Yet the Court, noting that "[n]o single tradition in public education is more deeply rooted than local control over the operation of schools," concluded that the "Michigan educational structure . . . , in common with most States, provides for a large measure of local control." Id. at 418 U. S. 741-742. Relying on this analysis, the Court determined that a Michigan school board's assignment policies could not be attributed to the State, and therefore declined to permit inter-district busing as a remedy for one school district's acts of unconstitutional
segregation. If local school boards operating under a similar statutory structure are considered separate entities for purposes of constitutional adjudication when they make segregative assignment decisions, it is difficult to see why a different analysis should apply when a local board's desegregative policy is at issue.
In any event, we believe that the question here is again settled by Lee. There, state control of the educational system was fully as complete as it now is in Washington. See generally N.Y.Educ.Law §§ 305, 306, 308-310 (McKinney 1969 and Supp.1981). The state statute under attack reallocated power over mandatory desegregation in two ways: it transferred authority from the State Commissioner of Education to local elected school boards, and it shifted authority from local appointed school boards to the state legislature. [Footnote 25] When presented with this restructuring of the political process, the District Court declared that it could "conceive of no more compelling case for the application of the Hunter principle." 318 F.Supp. at 719. This Court, of course, affirmed the District Court's judgment. We see no relevant distinction between this case and Lee; indeed, it is difficult to imagine a more precise parallel. [Footnote 26]
To be sure,
"the simple repeal or modification of desegregation or antidiscrimination laws, without more, never has been viewed as embodying a presumptively invalid racial classification."
Crawford v. Los Angeles Board of Education, post at 458 U. S. 539. See Dayton Board of Education v. Brinkman, 443 U. S. 526, 443 U. S. 531, n. 5 (1979); Hunter v. Erickson, 393 U.S. at 393 U. S. 390, n. 5. As Justice Harlan noted in Hunter, the voters of the polity may express their displeasure through an established legislative or referendum procedure when particular legislation "arouses passionate opposition." Id. at 393 U. S. 395 (concurring opinion). Had Akron's fair housing ordinance been defeated at a referendum, for example, "Negroes would undoubtedly [have lost] an important political battle, but they would not thereby [have been] denied equal protection." Id. at 393 U. S. 394.
Initiative 350, however, works something more than the "mere repeal" of a desegregation law by the political entity that created it. It burdens all future attempts to integrate Washington schools in districts throughout the State by lodging decisionmaking authority over the question at a new and remote level of government. Indeed, the initiative, like the charter amendment at issue in Hunter, has its most pernicious effect on integration programs that do "not arouse extraordinary controversy." Id. at 393 U. S. 396 (emphasis in original). In such situations, the initiative makes the enactment of racially beneficial legislation difficult, though the particular program involved might not have inspired opposition had it been promulgated through the usual legislative processes
used for comparable legislation. [Footnote 27] This imposes direct and undeniable burdens on minority interests. "If a governmental institution is to be fair, one group cannot always be expected to win," id. at 393 U. S. 394; by the same token, one group cannot be subjected to a debilitating and often insurmountable disadvantage.
In the end, appellants are reduced to suggesting that Hunter has been effectively overruled by more recent decisions of this Court. As they read it, Hunter applied a simple "disparate impact" analysis: it invalidated a facially neutral ordinance because of the law's adverse effects upon racial minorities. Appellants therefore contend that Hunter was swept away, along with the disparate impact approach to equal protection, in Washington v. Davis, 426 U. S. 229 (1976), and Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 (1977). Cf. James v. Valtierra, 402 U. S. 137 (1971).
Appellants unquestionably are correct when they suggest that "purposeful discrimination is the condition that offends the Constitution,'" Personnel Administrator of Massachusetts v. Feeney, 442 U.S. at 442 U. S. 274, quoting Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 402 U. S. 16 (1971), for the "central purpose of the Equal Protection Clause . . . is the prevention of official conduct discriminating on the basis of race." Washington v. Davis, 426 U.S. at 426 U. S. 239. Thus, when facially neutral legislation is subjected to
equal protection attack, an inquiry into intent is necessary to determine whether the legislation in some sense was designed to accord disparate treatment on the basis of racial considerations. Appellants' suggestion that this analysis somehow conflicts with Hunter, however, misapprehends the basis of the Hunter doctrine. We have not insisted on a particularized inquiry into motivation in all equal protection cases:
"A racial classification, regardless of purported motivation, is presumptively invalid, and can be upheld only upon an extraordinary justification."
There is one immediate and crucial difference between Hunter and the cases cited by appellants. While decisions such as Washington v. Davis and Arlington Heights considered classifications facially unrelated to race, the charter amendment at issue in Hunter dealt in explicitly racial terms with legislation designed to benefit minorities "as minorities," not legislation intended to benefit some larger group of underprivileged citizens among whom minorities were disproportionately represented. This does not mean, of course, that every attempt to address a racial issue gives rise to an impermissible racial classification. See Crawford v. Los Angeles Board of Education, post, p. 458 U. S. 527. But when the political process or the decisionmaking mechanism used to address racially conscious legislation -- and only such legislation -- is singled out for peculiar and disadvantageous treatment, the governmental action plainly "rests on distinctions based on race.'" [Footnote 29] James v. Valtierra, 402 U.S. at
402 U. S. 141, quoting Hunter v. Erickson, 393 U.S. at 393 U. S. 391. And when the State's allocation of power places unusual burdens on the ability of racial groups to enact legislation specifically designed to overcome the "special condition" of prejudice, the governmental action seriously "curtail[s] the operation of those political processes ordinarily to be relied upon to protect minorities." United States v. Carolene Products Co., 304 U. S. 144, 304 U. S. 153, n. 4 (1938). In a most direct sense, this implicates the judiciary's special role in safeguarding the interests of those groups that are "relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 411 U. S. 28 (1973). [Footnote 30]
Hunter recognized the considerations addressed above, and it therefore rested on a principle that has been vital for over a century -- that "the core of the Fourteenth Amendment is the prevention of meaningful and unjustified official distinctions based on race." 393 U.S. at 393 U. S. 391. Just such distinctions infected the reallocation of decisionmaking authority considered in Hunter, for minorities are no less powerless with the vote than without it when a racial criterion is used to assign governmental power in such a way as to exclude particular racial groups "from effective participation in the political proces[s]." Mobile v. Bolden, 446 U.S. at 446 U. S. 94 (WHITE, J., dissenting). Certainly, a state requirement that "desegregation or antidiscrimination laws," Crawford v. Los Angeles Board of Education, post at 458 U. S. 539, and only such
laws, be passed by unanimous vote of the legislature would be constitutionally suspect. It would be equally questionable for a community to require that laws or ordinances "designed to ameliorate race relations or to protect racial minorities," ibid., be confirmed by popular vote of the electorate as a whole, while comparable legislation is exempted from a similar procedure. The amendment addressed in Hunter -- and, as we have explained, the legislation at issue here -- was less obviously pernicious than are these examples, but was no different in principle.
In reaching this conclusion, we do not undervalue the magnitude of the State's interest in its system of education. Washington could have reserved to state officials the right to make all decisions in the areas of education and student assignment. It has chosen, however, to use a more elaborate system; having done so, the State is obligated to operate that system within the confines of the Fourteenth Amendment. That, we believe, it has failed to do. [Footnote 31]
Accordingly, the judgment of the Court of Appeals is
In 1971, the District implemented a program of mandatory reassignments to integrate certain of its middle schools. This prompted an attempt to recall four School Board members who had voted for the program. That attempt narrowly failed. See 473 F.Supp. 996, 1006 (WD Wash.1979)
Several community organizations threatened legal action if the District did not initiate a more effective integration effort, while the Mayor of Seattle and a number of community leaders, by letter dated May 20, 1977, urged the District to adopt
"a definition of racial isolation and measurable goals leading to the elimination of racial isolation in the Seattle Public Schools prior to a Court ordered and mandated desegregation remedy."
The District Court found that the actions of the School Board were prompted by its members'
"desire to ward off threatened litigation, their desire to prevent the threatened loss of federal funds, their desire to relieve the black students of the disproportionate burden which they had borne in the voluntary efforts to balance the schools racially and their perception that racial balance in the schools promotes the attainment of equal educational opportunity and is beneficial in the preparation of all students for democratic citizenship regardless of their race."
473 F.Supp. at 1007.
Washington's Constitution reserves to the people of the State "the power to propose bills, laws, and to enact or reject the same at the polls, independent of the legislature." Wash. Const., Art. II, § 1. Such initiatives are placed on the ballot upon the petition of 8% of the State's voters registered and voting for governor at the last preceding regular gubernatorial election. § 1(a). If passed by the electorate, an initiative may not be repealed by the state legislature for two years, although it may be amended within two years by a vote of two-thirds of each house of the legislature. § 41. See generally Comment, Judicial Review of Laws Enacted by Popular Vote, 55 Wash.L.Rev. 175 (1979).
The text of Initiative 350 is now codified as Wash.Rev.Code §§ 28A.26.010-28A.26.900 (1981).
At the beginning of the 1978-979 academic year, approximately 300,000 of the 769,040 students enrolled in Washington's public schools were bused to school. Ninety-five percent of these students were transported for reasons unrelated to race. 473 F.Supp. at 1002.
Along with Seattle, Tacoma School District No. 10 and Pasco School District No. 1 are the only districts in the State of Washington with comprehensive integration programs, and therefore the three are the only districts affected by Initiative 350. See id. at 1009. Since 1965, Pasco has made use of school closures and a mandatory busing program to overcome the racial isolation caused by segregated housing patterns; if students attended the schools nearest their homes, three of Pasco's seven elementary schools would have a primarily white and three a primarily minority student body. Id. at 1002-1003. The Tacoma School District has made use of school closures, racially controlled enrollment at magnet schools, and voluntary transfers -- though not mandatory busing -- to enhance racial balance in its schools. Id. at 1003-1004.
Several of the intervenor plaintiffs also alleged that the District had engaged in de jure segregation, and therefore was operating an unconstitutional dual school system. The District Court therefore bifurcated the litigation, first addressing the constitutionality of Initiative 350. Because of the court's conclusions on that question, the allegations of de jure segregation did not go to trial, and have not been addressed by the District Court or by the Court of Appeals.
The District Court acknowledged that it was impossible to determine whether the supporters of Initiative 350 "subjectively [had] a racially discriminatory intent or purpose," because "[a]s to that subjective intent, the secret ballot raises an impenetrable barrier." Id. at 1014. The court looked instead to objective factors, noting that it "marked [a] departure from the norm . . . for the autonomy of school boards to be restricted relative to the assignment of students," and that it marked a similar "departure from the procedural norm" for "an administrative decision of a subordinate local unit of government . . . [to be] overridden in a statewide initiative." Id. at 1016. These factors, when coupled with the "racially disproportionate impact of the initiative," its "historical background," and "the sequence of events leading to its adoption," were found to demonstrate that a "racially discriminatory intent or purpose was at least one motivating factor in the adoption of the initiative." Ibid.
The District Court noted that school boards that had practiced de jure segregation are under an affirmative obligation to eliminate the effects of that practice. Ibid. See Columbus Board of Education v. Penick, 443 U. S. 449, 443 U. S. 458-459 (1979).
The Court of Appeals therefore did not address the District Court's alternative finding that Initiative 350 had been adopted for discriminatory reasons, or its conclusion that the initiative was overbroad. 633 F.2d at 1342.
After the decision on the merits, the District Court had declined to award attorney's fees to the plaintiff School Districts because the Districts are state-funded entities. App. to Juris.Statement C-1. The Court of Appeals reversed on this issue, concluding that the District Court had abused its discretion in denying fees. The Court of Appeals determined that the School Districts fell within the language of the attorney's fees statutes, 42 U.S.C. § 1988 and 20 U.S.C. § 3205 (1976 ed., Supp. IV), see n 31, infra, and it reasoned that, "[a]s long as a publicly-funded organization advances important constitutional values, it is eligible for fees under the statutes." 633 F.2d at 1348.
As does Initiative 350, the New York statute apparently permitted voluntary student transfers to achieve integration. See n 16, infra.
The Court of Appeals accepted the District Court's characterization of the initiative, and even the dissenting judge in the Court of Appeals agreed that Initiative 350 addresses a "racial" problem. 633 F.2d at 1353.
Appellants and the United States do not challenge the propriety of race-conscious student assignments for the purpose of achieving integration, even absent a finding of prior de jure segregation. We therefore do not specifically pass on that issue. See generally Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 402 U. S. 16 (1971); North Carolina State Board of Education v. Swann, 402 U. S. 43, 402 U. S. 45 (1971). Cf. University of California Regents v. Bakke, 438 U. S. 265, 438 U. S. 300, n. 39, 438 U. S. 312-314 (1978) (opinion of POWELL, J.).
The United States seeks to distinguish Lee by suggesting that the statute there at issue "clearly prohibited" all attempts to ameliorate racial imbalance in the schools, while Initiative 350 permits voluntary desegregation efforts. Brief for United States 25. Even assuming that this distinction would otherwise be of constitutional significance, its premise is not accurate. The legislation challenged in Lee did permit voluntary integration efforts, for it expressly exempted from its restrictions "the assignment of a pupil in the manner requested or authorized by his parents or guardian." 318 F.Supp. at 712. Thus, as the District Court in Lee noted, the statute "denie[d] appointed officials the power to implement non-voluntary programs for the improvement of racial balance." Id. at 715 (emphasis added). The difficulty in Lee -- as in this case -- stemmed from the Lee District Court's conclusion that a voluntary program would not serve to integrate the community's schools:
"Voluntary plans for achieving racial balance . . . have not had a significant impact on the problems of racial segregation in the Buffalo public schools; indeed it would appear that racial isolation is actually increasing."
Ibid. Thus the statute challenged in Lee and Initiative 350 operated in precisely the same way to "deny . . . student[s] the right to attend a fully integrated school." Brief for United States 25.
JUSTICE POWELL finds Hunter completely irrelevant, dismissing it with the conclusory statement that "the political system [of Washington] has not been redrawn or altered." Post at 458 U. S. 498 (emphasis in original). But the dissent entirely fails to address the relevance of Hunter to the reallocation of decisionmaking authority worked by Initiative 350. The evil condemned by the Hunter Court was not the particular political obstacle of mandatory referenda imposed by the Akron charter amendment; it was, rather, the comparative structural burden placed on the political achievement of minority interests. Thus, in Hunter, the procedures for enacting racial legislation were modified in such a way as to place effective control in the hands of the city-wide electorate. Similarly here, the power to enact racial legislation has been reallocated. In each case, the effect of the challenged action was to redraw decisionmaking authority over racial matters -- and only over racial matters -- in such a way as to place comparative burdens on minorities. While JUSTICE POWELL and the United States find it crucial that the proponents of integrated schools remain free to use Washington's initiative system to further their ends, that was true in Hunter as well: proponents of open housing were not barred from invoking Akron's initiative procedures to repeal the charter amendment, or to enact fair housing legislation of their own. It surely is an excessively formal exercise, then, to argue that the procedural revisions at issue in Hunter imposed special burdens on minorities, but that the selective allocation of decisionmaking authority worked by Initiative 350 does not erect comparable political obstacles. Indeed, Hunter would have been virtually identical to this case had the Akron charter amendment simply barred the City Council from passing any fair housing ordinance, as Initiative 350 forbids the use of virtually all mandatory desegregation strategies. Surely, however, Hunter would not have come out the other way had the charter amendment made no provision for the passage of fair housing legislation, instead of subjecting such legislation to ratification by referendum.
The United States also would note that Initiative 350's "modification of state policy [was] not the result of any unusual political procedure," Brief for United States 30, for initiatives and referenda are often used by the Washington electorate. But that observation hardly serves to distinguish this case from Hunter, since the fair housing charter amendment was added through the unexceptional use of Akron's initiative procedure. See 393 U.S. at 393 U. S. 387.
Despite the force with which it is written, then, JUSTICE POWELL's essay on "the heretofore unquestioned right of a State to structure the decisionmaking authority of its government," post at 458 U. S. 493 -- as well as his observations on a State's right to repeal programs designed to eliminate de facto segregation -- is largely beside the point. The State's power has not been questioned at any point during this litigation. The single narrow question before us is whether the State has exercised its power in such a way as to place special, and therefore impermissible, burdens on minority interests.
The Court noted in Hunter that Akron "might have proceeded by majority vote . . . on all its municipal legislation," 393 U.S. at 393 U. S. 392; the charter amendment was invalidated because the citizens of Akron did not reserve all power to themselves, but rather distributed it in a nonneutral manner. In Lee, of course, the State had unquestioned authority to vest all power over education in state officials.
Indeed, even the State's efforts to help ensure equal opportunity in education and to encourage desegregation are cast in cooperative terms, and are designed to assist school districts in implementing programs of their choosing. See, e.g., Wash.Rev.Code §§ 28A.21.010(3), 28A.21.136(1) and (3) (1981); cf. § 28A.58.245(3).
The Washington Supreme Court noted:
"[A]s long as the school board authorized or required students to attend schools geographically situated close to their homes, they had such a right. But the right existed only because it was given to them by the school authorities."
80 Wash.2d at 452, 495 P.2d at 662.
We also note that the State has not attempted to reserve to itself exclusive power to deal with racial issues generally. Municipalities in Washington have been given broad powers of self-government, see generally Wash. Const., Amdt. 40; Wash.Rev.Code §§ 35.22.020, 35.23.440, 35.27.370, 35.30.010 (1981); Wash.Rev.Code, Tit. 35A (Optional Municipal Code), and Washington courts specifically have held that municipalities have the power to enact antidiscrimination ordinances. See, e.g., Seattle Newspaper-Web Pressmen's Union Local No. 6 v. Seattle, 24 Wash.App. 462, 604 P.2d 170 (1979). Cf. 5 E. McQuillin, Law of Municipal Corporations § 19.23, p. 425 (3d rev. ed.1981).
Throughout his dissent, JUSTICE POWELL insists that the Court has created a "vested constitutional right to local decisionmaking," post at 458 U. S. 498-499, that, under our holding,
"the people of the State of Washington apparently are forever barred from developing a different policy on mandatory busing where a school district previously has adopted one of its own,"
post at 458 U. S. 498, n. 14, and that today's decision somehow raises doubts about "the authority of a State to abolish school boards altogether." Post at 458 U. S. 494. See also post at 458 U. S. 495, and 458 U. S. 498-499, n. 14. These statements evidence a basic misunderstanding of our decision. Our analysis vests no rights, and has nothing to do with whether school board action predates that taken by the State. Instead, what we find objectionable about Initiative 350 is the comparative burden it imposes on minority participation in the political process -- that is, the racial nature of the way in which it structures the process of decisionmaking. It is evident, then, that the horribles paraded by the dissent, post at 458 U. S. 498-499, n. 14 -- which have nothing to do with the ability of minorities to participate in the process of self-government -- are entirely unrelated to this case. It is equally clear, as we have noted at several points in our opinion, that the State remains free to vest all decisionmaking power in state officials, or to remove authority from local school boards in a race-neutral manner.
One amicus observes that many States employ a similar educational structure. See Brief for National School Boards Assn. as Amicus Curie 11, 14-16, App. 1a-10a.
When authority to initiate desegregation programs was removed from appointed school boards and from state education officials, the only body capable of exercising power over such programs was the state legislature.
The United States makes only one attempt to distinguish Lee in this regard: Lee is inapposite, the United States maintains, because the statute at issue there "blocked desegregation efforts even by a school district subject to a preexisting order to eliminate segregation in its schools,'" and therefore -- purportedly in contrast to Initiative 350 -- "interfere[d] with the efforts of individual school districts to eliminate de jure segregation." Brief for United States 25, quoting Lee v. Nyquist, 318 F.Supp. at 715. If by this statement the United States seeks to place the District Court's holding and this Court's affirmance in Lee on the ground that the New York statute interfered with Buffalo's attempts to eliminate de jure segregation, its submission is simply inaccurate. At the time of the Lee litigation, Buffalo had not been found guilty of practicing intentional segregation. See Arthur v. Nyquist, 573 F.2d 134, 137 (CA2 1978). As the United States notes, Buffalo was under a "preexisting order to eliminate segregation in its schools" -- but that order was issued by the New York Commissioner of Education, because he had found Buffalo's schools de facto segregated. Appeal of Dixon, 4 N.Y.Educ.Dept.Reports 115 (1965). See Lee v. Nyquist, 318 F.Supp. at 714-715. Lee did not concern de jure segregation; it is to be explained only as a straightforward application of the Hunter doctrine.
That phenomenon is graphically demonstrated by the circumstances of this litigation. The longstanding desegregation programs in Pasco and Tacoma, as well as the Seattle middle school integration plan, have functioned for years without creating undue controversy. Yet they have been swept away, along with the Seattle Plan, by Initiative 350. As a practical matter, it seems most unlikely that proponents of desegregative busing in smaller communities such as Tacoma or Pasco will be able to obtain the statewide support now needed to permit them to desegregate the schools in their communities.
The State does not suggest that Initiative 350 furthers the kind of compelling interest necessary to overcome the strict scrutiny applied to explicit racial classifications.
Thus we do not hold, as the dissent implies, post at 458 U. S. 494, that the State's attempt to repeal a desegregation program creates a racial classification, while "identical action" by the Seattle School Board does not. It is the State's race-conscious restructuring of its decisionmaking process that is impermissible, not the simple repeal of the Seattle Plan.
We also note that singling out the political processes affecting racial issues for uniquely disadvantageous treatment inevitably raises dangers of impermissible motivation. When political institutions are more generally restructured, as JUSTICE BRENNAN has noted in another context, "[t]he very breadth of [the] scheme . . . negates any suggestion" of improper purpose. Walz v. Tax Comm'n, 397 U. S. 664, 397 U. S. 689 (1970) (concurring opinion).
Appellants also challenge the Court of Appeals' award of attorney's fees to the School District plaintiffs, see n 12, supra, arguing that state-funded entities are not eligible to receive such awards from the State. In our view, this contention is without merit. The Districts are plainly parties covered by the language of the fees statutes. See 42 U.S.C. § 1988 (1976 ed., Supp. IV) ("In any action . . . to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of its costs") (emphasis added); 20 U.S.C. § 3205 (1976 ed., Supp. IV) ("Upon the entry of a final order by a court of the United States against a . . . State . . . for failure to comply with . . . the fourteenth amendment to the Constitution of the United States as [it] pertain[s] to elementary and secondary education, the court, in its discretion . . . may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of its costs") (emphasis added). Nothing in the history of the statutes suggests that this language was meant to exclude state-funded entities. To the contrary, the Courts of Appeals have held with substantial unanimity that publicly funded legal services organizations may be awarded fees. See, e.g., Dennis v. Chang, 611 F.2d 1302 (CA9 1980); Holley v. Lavine, 605 F.2d 638 (CA2 1979), cert. denied sub nom. Blum v. Holley, 446 U.S. 913 (1980); Lund v. Affleck, 587 F.2d 75 (CA1 1978). And when it enacted § 1988, Congress cited with approval a decision awarding fees to a state-funded organization. See H.R.Rep. No. 94-1558, p. 8, n. 16 (1976) (citing Incarcerated Men of Allen County Jail v. Fair, 507 F.2d 281 (CA6 1974)). In any event, the underlying congressional policies are served by awarding fees in cases such as the one before us: no matter what the source of their funds, school boards have limited budgets, and allowing them fees "encourage[s] compliance with and enforcement of the civil rights laws." Dennis v. Chang, 611 F.2d at 1306. See id. at 1306-1307. While appellants suggest that it is incongruous for a State to pay attorney's fees to one of its school boards, it seems no less incongruous that a local board would feel the need to sue the State for a violation of the Fourteenth Amendment. We see no reason to disturb the judgment of the Court of Appeals on this point.
JUSTICE POWELL, with whom THE CHIEF JUSTICE, JUSTICE REHNQUIST, and JUSTICE O'CONNOR join, dissenting.
The people of the State of Washington, by a two-to-one vote, have adopted a neighborhood school policy. The policy is binding on local school districts but in no way affects the authority of state or federal courts to order school transportation to remedy violations of the Fourteenth Amendment. Nor does the policy affect the power of local school districts to establish voluntary transfer programs for racial integration or for any other purpose.
In the absence of a constitutional violation, no decision of this Court compels a school district to adopt or maintain a mandatory busing program for racial integration. [Footnote 2/1] Accordingly, the Court does not hold that the adoption of a neighborhood school policy by local school districts would be unconstitutional. Rather, it holds that the adoption of such a
policy at the state level -- rather than at the local level -- violates the Equal Protection Clause of the Fourteenth Amendment.
I dissent from the Court's unprecedented intrusion into the structure of a state government. The School Districts in this case were under no federal constitutional obligation to adopt mandatory busing programs. The State of Washington, the governmental body ultimately responsible for the provision of public education, has determined that certain mandatory busing programs are detrimental to the education of its children.
"[T]he Fourteenth Amendment leaves the States free to distribute the powers of government as they will between their legislative and judicial branches."
Hughes v. Superior Court, 339 U. S. 460, 339 U. S. 467 (1950). In my view, that Amendment leaves the States equally free to decide matters of concern to the State at the state, rather than local, level of government.
At the November, 1978, general election, the voters of the State adopted Initiative 350 by a two-to-one majority. [Footnote 2/2] The Initiative sets forth a neighborhood school policy binding on local school districts. It establishes a general rule prohibiting school districts from
"directly or indirectly requir[ing] any student to attend a school other than the school which is geographically nearest or next nearest the student's place of residence."
Wash.Rev.Code § 28A.26.010 (1981). The rule may be avoided in individual instances only if the student requires special education; if there are health or safety hazards between the student's residence and the nearest or next
nearest school; or if the nearby schools are overcrowded, unsafe, or lacking in physical facilities. Ibid.
The Initiative includes two significant limitations upon the scope of its neighborhood school policy. It expressly provides that nothing in the Initiative shall
"preclude the establishment of schools offering specialized or enriched educational programs which students may voluntarily choose to attend, or of any other voluntary option offered to students."
§ 28A.26.050. Moreover, and critical to this case, the authority of state and federal courts to order mandatory school assignments to remedy constitutional violations is left untouched by the Initiative: "This chapter shall not prevent any court of competent jurisdiction from adjudicating constitutional issues relating to the public schools." § 28A.26.060. [Footnote 2/3]
This suit was filed in United States District Court shortly after the Initiative was enacted. The Seattle School District, joined by the Tacoma and Pasco School Districts [Footnote 2/4] and certain individual plaintiffs, argued that the Initiative violated the Equal Protection Clause of the Fourteenth Amendment. The District Court agreed, and, in a split decision, the Court of Appeals affirmed. Relying on Hunter v. Erickson, 393 U. S. 385 (1969), the Court of Appeals concluded that Initiative 350
"both creates a constitutionally suspect racial classification and radically restructures the political
process of Washington by allowing a state-wide majority to usurp traditional local authority over local school board educational policies."
633 F.2d 1338, 1344 (CA9 1980). [Footnote 2/5]
The principles that should guide us in reviewing the constitutionality of Initiative 350 are well established. To begin with, we have never held, or even intimated, that, absent a federal constitutional violation, a State must choose to treat persons differently on the basis of race. In the absence of a federal constitutional violation, requiring race-specific remedies, a policy of strict racial neutrality by a State would violate no federal constitutional principle. Cf. University of California Regents v. Bakke, 438 U. S. 265 (1978).
In particular, a neighborhood school policy and a decision not to assign students on the basis of their race do not offend the Fourteenth Amendment. [Footnote 2/6] The Court has never
held that there is an affirmative duty to integrate the schools in the absence of a finding of unconstitutional segregation. See Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 402 U. S. 24 (1971); Dayton Board of Education v. Brinkman, 433 U. S. 406, 433 U. S. 417 (1977). Certainly there is no constitutional duty to adopt mandatory busing in the absence of such a violation. Indeed, even where desegregation is ordered because of a constitutional violation, the Court has never held that racial balance itself is a constitutional requirement. Ibid. And even where there have been segregated schools, once desegregation has been accomplished, no further constitutional duty exists upon school boards or States to maintain integration. See Pasadena City Board of Education v. Spangler, 427 U. S. 424 (1976).
Moreover, it is a well-established principle that the States have "extraordinarily wide latitude . . . in creating various types of political subdivisions and conferring authority upon them." Holt Civic Club v. Tuscaloosa, 439 U. S. 60, 439 U. S. 71 (1978). [Footnote 2/7] The Constitution does not dictate to the States a
particular division of authority between legislature and judiciary or between state and local governing bodies. It does not define institutions of local government.
Thus, a State may choose to run its schools from the state legislature or through local school boards, just as it may choose to address the matter of race relations at the state or local level. There is no constitutional requirement that the State establish or maintain local institutions of government, or that it delegate particular powers to these bodies. The only relevant constitutional limitation on a State's freedom to order its political institutions is that it may not do so in a fashion designed to "plac[e] special burdens on racial minorities within the governmental process." Hunter v. Erickson, 393 U.S. at 393 U. S. 391 (emphasis added).
In sum, in the absence of a prior constitutional violation, the States are under no constitutional duty to adopt integration programs in their schools, and certainly they are under no duty to establish a regime of mandatory busing. Nor does the Federal Constitution require that particular decisions concerning the schools or any other matter be made on the local, as opposed to the state, level. It does not require the States to establish local governmental bodies, or to delegate unreviewable authority to them.
Application of these settled principles demonstrates the serious error of today's decision -- an error that cuts deeply into the heretofore unquestioned right of a State to structure the decisionmaking authority of its government. In this case, by
Initiative 350, the State has adopted a policy of racial neutrality in student assignments. The policy in no way interferes with the power of state or federal courts to remedy constitutional violations. And if such a policy had been adopted by any of the School Districts in this litigation there could have been no question that the policy was constitutional. [Footnote 2/8]
The issue here arises only because the Seattle School District -- in the absence of a then-established state policy -- chose to adopt race-specific school assignments with extensive busing. It is not questioned that the District itself, at any time thereafter, could have changed its mind and canceled its integration program without violating the Federal Constitution. Yet this Court holds that neither the legislature nor the people of the State of Washington could alter what the District had decided.
The Court argues that the people of Washington, by Initiative 350, created a racial classification, and yet must agree that identical action by the Seattle School District itself would have created no such classification. This is not an easy argument to answer, because it seems to make no sense. School boards are the creation of supreme state authority, whether in a State Constitution or by legislative enactment. Until today's decision, no one would have questioned the authority of a State to abolish school boards altogether, or to require that they conform to any lawful state policy. And in the State of Washington, a neighborhood school policy would have been lawful.
Under today's decision, this heretofore undoubted supreme authority of a State's electorate is to be curtailed whenever a school board -- or indeed any other state board or local instrumentality -- adopts a race-specific program that arguably benefits racial minorities. Once such a program is adopted,
only the local or subordinate entity that approved it will have authority to change it. The Court offers no authority or relevant explanation for this extraordinary subordination of the ultimate sovereign power of a State to act with respect to racial matters by subordinate bodies. It is a strange notion -- alien to our system -- that local governmental bodies can forever preempt the ability of a State -- the sovereign power -- to address a matter of compelling concern to the State. The Constitution of the United States does not require such a bizarre result.
This is certainly not a case where a State -- in moving to change a locally adopted policy -- has established a racially discriminatory requirement. Initiative 350 does not impede enforcement of the Fourteenth Amendment. If a Washington school district should be found to have established a segregated school system, Initiative 350 will place no barrier in the way of a remedial busing order. Nor does Initiative 350 authorize or approve segregation in any form or degree. It is neutral on its face, and racially neutral as public policy. Children of all races benefit from neighborhood schooling, just as children of all races benefit from exposure to "ethnic and racial diversity in the classroom.'" Ante at 458 U. S. 472, quoting Columbus Board of Education v. Penick, 443 U. S. 449, 443 U. S. 486 (1979) (POWELL, J., dissenting). [Footnote 2/9]
Finally, Initiative 350 places no "special burdens on racial minorities within the governmental process," Hunter v.
Erickson, supra, at 393 U. S. 391, such that interference with the State's distribution of authority is justified. Initiative 350 is simply a reflection of the State's political process at work. It does not alter that process in any respect. It does not require, for example, that all matters dealing with race -- or with integration in the schools -- must henceforth be submitted to a referendum of the people. Cf. Hunter v. Erickson, supra. The State has done no more than precisely what the Court has said that it should do: it has "resolved through the political process" the "desirability and efficacy of [mandatory] school desegregation" where there has been no unlawful segregation. Ante at 458 U. S. 474.
The political process in Washington, as in other States, permits persons who are dissatisfied at a local level to appeal to the state legislature or the people of the State for redress. It permits the people of a State to preempt local policies, and to formulate new programs and regulations. Such a process is inherent in the continued sovereignty of the States. This is our system. Any time, a State chooses to address a major issue some persons or groups may be disadvantaged. In a democratic system, there are winners and losers. But there is no inherent unfairness in this, and certainly no constitutional violation. [Footnote 2/10]
Nonetheless, the Court holds that Initiative 350 "imposes substantial and unique burdens on racial minorities" in the governmental process. See ante at 458 U. S. 470. Its authority for
this holding is said to be Hunter v. Erickson, supra. [Footnote 2/11] In Hunter the people of Akron passed a charter amendment that
"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. Although the charter amendment was facially neutral, the Court found that it could be said to embody a racial classification: "[T]he reality is that the law's impact falls on the minority. The majority needs no protection against discrimination." Id. at 393 U. S. 391. By making it more difficult to pass legislation in favor of racial minorities, the amendment placed "special burdens on racial minorities within the governmental process." Ibid. .
Nothing in Hunter supports the Court's extraordinary invasion into the State's distribution of authority. Even could it be assumed that Initiative 350 imposed a burden on racial minorities, [Footnote 2/12] it simply does not place unique political obstacles in the way of racial minorities. In this case, unlike in
Hunter, the political system has not been redrawn or altered. The authority of the State over the public school system, acting through initiative or the legislature, is plenary. Thus, the State's political system is not altered when it adopts for the first time a policy, concededly within the area of its authority, for the regulation of local school districts. And certainly racial minorities are not uniquely or comparatively burdened by the State's adoption of a policy that would be lawful if adopted by any school district in the State. [Footnote 2/13]
Hunter, therefore, is simply irrelevant. It is the Court that, by its decision today, disrupts the normal course of State government. [Footnote 2/14] Under its unprecedented theory of a vested
constitutional right to local decisionmaking, the State apparently is now forever barred from addressing the perplexing problems of how best to educate fairly all children in a multiracial society where, as in this case, the local school board has acted first. [Footnote 2/15]
We are not asked to decide the wisdom of a state policy that limits the ability of local school districts to adopt -- on their own volition -- mandatory reassignments for racial balance. We must decide only whether the Federal Constitution permits the State to adopt such a policy. The School Districts in this case were under no federal constitutional obligation to adopt mandatory busing. Absent such an obligation, the State -- exercising its sovereign authority over all subordinate agencies -- should be free to reject this debatable restriction on liberty. But today's decision denies this right to a State. In this case, it deprives the State of Washington of all opportunity to address the unresolved questions resulting from extensive mandatory busing. [Footnote 2/16] The Constitution does not dictate to the States at what level of government decisions
affecting the public schools must be taken. It certainly does not strip the States of their sovereignty. It therefore does not authorize today's intrusion into the State's internal structure. [Footnote 2/17]
Throughout this dissent, I use the term "mandatory busing" to refer to busing -- or mandatory student reassignments -- for the purpose of achieving racial integration.
The Initiative passed by almost 66% of the statewide vote. In Seattle, the Initiative passed by over 61.9% of the vote. It failed in only two of Seattle's legislative districts -- one predominantly black and one predominantly white.
Unlike the constitutional amendment at issue in Crawford v. Los Angeles Board of Education, post, p. 458 U. S. 527, Initiative 350 places no limits on the state courts in their interpretation of the State Constitution. Thus, if mandatory school assignments were required by the State Constitution -- although not by the Fourteenth Amendment of the Federal Constitution -- Initiative 350 would not hinder a State from enforcing its Constitution.
Tacoma School District No. 10 and Pasco School District No. 1 are the only other school districts in Washington with extensive integration programs. Pasco has relied upon school closings and mandatory busing to achieve racial integration in its schools. Only minority children are bused under the Pasco plan. 473 F.Supp. 996, 1002 (WD Wash.1979). In addition to school closings, the Tacoma integration plan relies upon voluntary techniques -- magnet schools and voluntary transfers.
Judge Wright dissented. In his view, Initiative 350 could not be said to embody a racial classification. The Initiative does not classify individuals on the basis of their race. It simply deals with a matter bearing on race relations. Moreover, no racial classification is created because the citizens of a State favor mandatory school reassignments for some purposes, but not for reasons of race. The benefits and problems associated with busing for one reason -- e.g., for racial integration -- are not the same as for another -- e.g., to avoid safety hazards. Finally, Judge Wright could not understand how the exercise of authority by the State could create a racial classification. The State had not intervened by altering the legislative process in a way that burdened racial minorities. Charged by the State Constitution with the responsibility for the provision of public education, the State had simply exercised its authority to run its own school system.
Judge Wright also addressed the District Court's alternative holdings that Initiative 350 is overbroad, or that it was motivated by discriminatory intent. He found no basis for either conclusion. These alternative holdings were not addressed by the Court of Appeals majority. Nor are they relied upon by the Court today. Accordingly, they are not discussed in this dissent.
See Swann v. Charlotte-Mecklenburg Board of Education, 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").
Indeed, in the absence of a finding of segregation by the School District, mandatory busing on the basis of race raises constitutional difficulties of its own. Extensive pupil transportation may threaten liberty or privacy interests. See University of California Regents v. Bakke, 438 U. S. 265, 438 U. S. 300, n. 39 (1978) (opinion of POWELL, J.); Keyes v. School District No. 1, Denver, Colo., 413 U. S. 189, 413 U. S. 240-250 (1973) (POWELL, J., concurring in part and dissenting in part). Moreover, when a State or school board assigns students on the basis of their race, it acts on the basis of a racial classification, and we have consistently held that
"[a] racial classification, regardless of purported motivation, is presumptively invalid, and can be upheld only upon an extraordinary justification."
"[A]ccording to the institutions of this country, the sovereignty in every State resides in the people of the State, and . . . they may alter and change their form of government at their own pleasure."
Luther v. Borden, 7 How. 1, 48 U. S. 47 (1849). See Community Communications Co. v. Boulder, 455 U. S. 40, 455 U. S. 53-54 (1982); Sailors v. Board of Education, 387 U. S. 105, 387 U. S. 109 (1967) ("Save and unless the state, county, or municipal government runs afoul of a federally protected right, it has vast leeway in the management of its internal affairs"); United States v. Kagama, 118 U. S. 375, 118 U. S. 379 (1886) (under the Constitution, sovereign authority resides either with the States or the Federal Government, and "[t]here exist . . . but these two").
The Court consistently has held 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."
Crawford v. Los Angeles Board of Education, post at 458 U. S. 538.
The policies in support of neighborhood schooling are various, but all of them are racially neutral. The people of the State legitimately could decide that unlimited mandatory busing places too great a burden on the liberty and privacy interests of families and students of all races. It might decide that the reassignment of students to distant schools, on the basis of race, was too great a departure from the ideal of racial neutrality in state action. And, in light of the experience with mandatory busing in other cities, the State might conclude that such a program ultimately would lead to greater racial imbalance in the schools. See Estes v. Metropolitan Branches of Dallas NAACP, 444 U. S. 437, 444 U. S. 451 (1980) (POWELL, J., dissenting).
Cf. James v. Valtierra, 402 U. S. 137, 402 U. S. 142 (1971) ("[O]f course a lawmaking procedure that disadvantages' a particular group does not always deny equal protection. Under any such holding, presumably a State would not be able to require referendums on any subject unless referendums were required on all, because they would always disadvantage some group. And this Court would be required to analyze governmental structures to determine whether a gubernatorial veto provision or a filibuster rule is likely to `disadvantage' any of the diverse and shifting groups that make up the American people").
The Court also relies at certain critical points in its discussion on the summary affirmance in Lee v. Nyquist, 318 F.Supp. 710 (WDNY 1970), summarily aff'd, 402 U.S. 935 (1971). As we have often noted, however, summary affirmances by this Court are of little precedential force. See Metromedia, Inc. v. San Diego, 453 U. S. 490, 453 U. S. 500 (1981). A summary affirmance "is not to be read as an adoption of the reasoning supporting the judgment under review." Zobel v. Williams, 457 U. S. 55, 457 U. S. 64, n. 13 (1982).
It is far from clear that, in the absence of a constitutional violation, mandatory busing necessarily benefits racial minorities or that it is even viewed with favor by racial minorities. See Crawford v. Los Angeles Board of Education, post at 458 U. S. 545, n. 32. As the Court indicates, the busing question is complex, and is best resolved by the political process. Ante at 458 U. S. 474.
Moreover, it is significant that Initiative 350 places no limits on voluntary programs or on court-ordered reassignments. It permits school districts to order school closings for purposes of racial balance. § 28A.26.030. And it permits school districts to order a student to attend the "next nearest" -- rather than nearest -- school to promote racial integration.
The Court repeatedly states that the effect of Initiative 350 is
"to redraw decisionmaking authority over racial matters -- and only over racial matters -- in such a way as to place comparative burdens on minorities."
Ante at 458 U. S. 475, n. 17 (emphasis added). But the decision by the State to exercise its authority over the schools and over racial matters in the schools does not place a comparative burden on racial minorities. In Hunter, as we have understood it, "fair housing legislation alone was subject to an automatic referendum requirement." Gordon v. Lance, 403 U. S. 1, 403 U. S. 5 (1971) (emphasis added). By contrast, Initiative 350 merely places mandatory busing among the much larger group of matters -- covering race relations, administration of the schools, and a variety of other matters -- addressed at the state level. See
The Court's decision intrudes deeply into normal state decisionmaking. Under its holding, the people of the State of Washington apparently are forever barred from developing a different policy on mandatory busing where a school district previously has adopted one of its own. This principle would not seem limited to the question of mandatory busing. Thus, if the admissions committee of a state law school developed an affirmative action plan that came under fire, the Court apparently would find it unconstitutional for any higher authority to intervene unless that authority traditionally dictated admissions policies. As a constitutional matter, the dean of the law school, the faculty of the university as a whole, the university president, the chancellor of the university system, and the board of regents might be powerless to intervene despite their greater authority under state law.
After today's decision, it is unclear whether the State may set policy in any area of race relations where a local governmental body arguably has done "more" than the Fourteenth Amendment requires. If local employment or benefits are distributed on a racial basis to the benefit of racial minorities, the State apparently may not thereafter ever intervene. Indeed, under the Court's theory, one must wonder whether -- under the equal protection component of the Fifth Amendment -- even the Federal Government could assert its superior authority to regulate in these areas.
Even accepting the dubious notion that a State must demonstrate some past control over public schooling or race relations before now intervening in these matters, ante at 458 U. S. 477, the Court's attempt to demonstrate that Initiative 350 represents a unique thrust by the State into these areas is unpersuasive. The Court's own discussion indicates the comprehensive character of the State's activity. The Common School Provisions of the State's Code of Laws are nearly 200 pages long, governing a broad variety of school matters. The State has taken seriously its constitutional obligation to provide public education. See Wash. Const., Art. IX, § 2; Seattle School District No. 1 v. State, 90 Wash.2d 476, 518, 585 P.2d 71, 95 (1978). In light of the wide range of regulation of the public schools by the State, it is wholly unclear what degree of prior concern or control by the State would satisfy the Court's new doctrine.
In addition to public school affairs generally, the State has taken a direct interest in ending racial discrimination in the schools and elsewhere. See Wash.Rev.Code § 49.60.010 et seq. (1981). Article IX, § 1, of the State Constitution specifically prohibits discrimination in public schools:
"It is the paramount duty of the state to make ample provision for the education of all children residing within its borders without distinction or preference on account of race, color, caste, or sex."
The State Supreme Court has not interpreted this section of the State Constitution to prohibit race-conscious school assignments in the absence of a violation of the Fourteenth Amendment. Cf. Citizens Against Mandatory Busing v. Palmason, 80 Wash.2d 445, 495 P.2d 657 (1972). But until today's decision, one would have thought that the state court could have rendered such a decision without violating the Federal Constitution.
Responding to this dissent, the Court denies that its opinion limits the authority of the people of the State of Washington and the legislature to control or regulate school boards. It further states that
"the State remains free to vest all decisionmaking power in state officials, or to remove authority from local school boards in a race-neutral manner."
Ante at 458 U. S. 480, n. 23. These are puzzling statements that seem entirely at odds with much of the text of the Court's opinion. It will be surprising if officials of the State of Washington -- with the one exception mentioned below -- will have any clear idea as to what the State now lawfully may do.
The Court does say that "[i]t is the State's race-conscious restructuring of its decisionmaking process that is impermissible, not the simple repeal of the Seattle Plan." Ante at 458 U. S. 485-486, n. 29. Apparently the Court is saying that, despite what else may be said in its opinion, the people of the State -- or the state legislature -- may repeal the Seattle Plan, even though neither the people nor the legislature validly may prescribe statewide standards. I perceive no logic in -- and certainly no constitutional basis for -- a distinction between repealing the Seattle Plan of mandatory busing and establishing a statewide policy to the same effect. The people of a State have far greater interest in the general problems associated with compelled busing for the purpose of integration than in the plan of a single school board.
As a former school board member for many years, I accept the privilege of a dissenting Justice to add a personal note. In my view, the local school board -- responsible to the people of the district it serves -- is the best qualified agency of a state government to make decisions affecting education within its district. As a policy matter, I would not favor reversal of the Seattle Board's decision to experiment with a reasonable mandatory busing program, despite my own doubts as to the educational or social merit of such a program. See Estes v. Metropolitan Branches of Dallas NAACP, 444 U.S. at 444 U. S. 438-448 (POWELL, J., dissenting). But this case does not present a question of educational policy, or even the merits of busing for racial integration. The question is one of a State's sovereign authority to structure and regulate its own subordinate bodies.