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
Page 458 U. S. 458
process is "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.
Pp.
458 U. S.
467-470.
(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.
Page 458 U. S. 459
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.
I
A
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
Page 458 U. S. 460
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]
Page 458 U. S. 461
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.
B
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
Page 458 U. S. 462
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 § 28 A. 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,"
or if
"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
Page 458 U. S. 463
"feeder" schools -- that are a part of the Seattle Plan.
See § 28 A. 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
§ 28 A. 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
Page 458 U. S. 464
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
Page 458 U. S. 465
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
Page 458 U. S. 466
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]
Page 458 U. S. 467
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).
II
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
Page 458 U. S. 468
effective.'"
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,"
ibid., thus
"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).
Page 458 U. S. 469
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
Page 458 U. S. 470
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.
III
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.
Page 458 U. S. 471
A
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
Page 458 U. S. 472
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."
Brown v. Board of Education, 347 U.
S. 483,
347 U. S. 493
(1954). When that environment is largely shaped by members of
different racial and cultural groups, minority children can achieve
their full
Page 458 U. S. 473
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,
Page 458 U. S. 474
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.
B
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
Page 458 U. S. 475
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
Page 458 U. S. 476
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."
Id. at
393 U. S.
392-393. [
Footnote
18] Washington also has chosen
Page 458 U. S. 477
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 § 28 A. 02.010
(1981); ch. 28 A. 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., §§ 28 A. 01.010, 28 A. 01.020 (length of school
day and year); ch. 28 A. 27 (mandatory attendance); ch. 28 A. 67
(teacher qualifications); ch. 28 A. 05 and §§ 28 A. 58.75028 A.
58.754 (curriculum). But Washington has chosen to meet its
educational responsibilities primarily through "state and local
officials, boards, and committees," § 28 A. 02.020, and the
responsibility to devise and tailor educational programs
Page 458 U. S. 478
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." § 28 A. 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. § 28 A. 58.758(2). School boards are generally
directed to "develop a program identifying student learning
objectives for their district[s]," § 28 A. 58.090;
see
also § 28 A. 58.092, to select instructional materials, § 28
A. 58.103, to stock libraries as they deem necessary, § 28 A.
58.104, and to initiate a variety of optional programs.
See,
e.g., §§ 28 A. 34.010, 28 A. 35.010, 28 A. 58.105. School
boards, of course, are given broad corporate powers. §§ 28 A.
58.010, 28 A. 58.075, 28 A. 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. § 28 A. 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]." § 28 A. 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
Page 458 U. S. 479
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
Page 458 U. S. 480
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
Page 458 U. S. 481
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
Page 458 U. S. 482
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]
Page 458 U. S. 483
C
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
Page 458 U. S. 484
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.
IV
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
Page 458 U. S. 485
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."
Personnel Administrator of Massachusetts v. Feeney, 442
U.S. at
442 U. S. 272.
And legislation of the kind challenged in
Hunter similarly
falls into an inherently suspect category. [
Footnote 28]
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
Page 458 U. S. 486
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
Page 458 U. S. 487
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.
V
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
Affirmed.
Page 458 U. S. 488
[
Footnote 1]
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)
[
Footnote 2]
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."
App. 139.
[
Footnote 3]
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.
[
Footnote 4]
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).
[
Footnote 5]
The text of Initiative 350 is now codified as Wash.Rev.Code §§
28 A. 26.010-28 A. 26.900 (1981).
[
Footnote 6]
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.
[
Footnote 7]
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.
[
Footnote 8]
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.
[
Footnote 9]
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.
[
Footnote 10]
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).
[
Footnote 11]
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.
[
Footnote 12]
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.
[
Footnote 13]
As does Initiative 350, the New York statute apparently
permitted voluntary student transfers to achieve integration.
See n 16,
infra.
[
Footnote 14]
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.
[
Footnote 15]
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.).
[
Footnote 16]
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.
[
Footnote 17]
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.
[
Footnote 18]
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.
[
Footnote 19]
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.
[
Footnote 20]
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 §§ 28 A. 21.010(3), 28 A. 21.136(1) and (3) (1981);
cf. § 28 A. 58.245(3).
[
Footnote 21]
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.
[
Footnote 22]
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).
[
Footnote 23]
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.
[
Footnote 24]
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.
[
Footnote 25]
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.
[
Footnote 26]
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.
[
Footnote 27]
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.
[
Footnote 28]
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.
[
Footnote 29]
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.
[
Footnote 30]
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).
[
Footnote 31]
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
Page 458 U. S. 489
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.
I
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 § 28 A. 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
Page 458 U. S. 490
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."
§ 28 A. 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." § 28 A. 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
Page 458 U. S. 491
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]
II
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
Page 458 U. S. 492
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
Page 458 U. S. 493
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.
III
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
Page 458 U. S. 494
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,
Page 458 U. S. 495
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.
Page 458 U. S. 496
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]
IV
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
Page 458 U. S. 497
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
Page 458 U. S. 498
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
Page 458 U. S. 499
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]
Page 458 U. S. 500
V
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
Page 458 U. S. 501
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]
[
Footnote 2/1]
Throughout this dissent, I use the term "mandatory busing" to
refer to busing -- or mandatory student reassignments -- for the
purpose of achieving racial integration.
[
Footnote 2/2]
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.
[
Footnote 2/3]
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.
[
Footnote 2/4]
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.
[
Footnote 2/5]
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.
[
Footnote 2/6]
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."
Personnel Administrator of Massachusetts v. Feeney,
442 U. S. 256,
442 U. S. 272
(1979).
[
Footnote 2/7]
"[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").
[
Footnote 2/8]
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.
[
Footnote 2/9]
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).
[
Footnote 2/10]
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").
[
Footnote 2/11]
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).
[
Footnote 2/12]
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. § 28 A. 26.030. And it permits school districts to order a
student to attend the "next nearest" -- rather than nearest --
school to promote racial integration.
[
Footnote 2/13]
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
458
U.S. 457fn2/15|>n. 15,
infra. Racial minorities, if
indeed they are burdened by Initiative 350, are not
comparatively burdened. In this respect, they are in the
same position as any other group of persons who are disadvantaged
by regulations drawn at the State level.
[
Footnote 2/14]
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.
[
Footnote 2/15]
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.
[
Footnote 2/16]
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.
[
Footnote 2/17]
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.