The Dissent
Associate Justice Thurgood Marshall, in filing the lone dissent, said that he found the majority’s reasoning in the Crawford case to be directly at odds with the decision in Seattle. “I fail to see how a fundamental redefinition of the governmental decisionmaking structure with respect to the same racial issue can be unconstitutional when the state seeks to remove the authority from local school boards, yet constitutional when the state attempts to achieve the same result by limiting the power of its courts,” he wrote.
Justice Marshall’s dissent summarizes three key points from the Seattle decision:
“We rejected the State’s argument that a state-wide initiative prohibiting mandatory student assignment has no ‘racial overtones’ simply because it does not mention the words ‘race’ or ‘integration.”’
“The Seattle Court determined that Initiative 350 unconstitutionally reallocated power from local school boards to the state legislature or the state-wide electorate.”
“Finally, the Court’s decision in Seattle implicitly rejected the argument that state action that reallocates governmental power along racial lines can be immunized by the fact that it specifically leaves intact rights guaranteed by the Fourteenth Amendment.”
He then applies these to Crawford:
In my view, these principles inexorably lead to the conclusion that California’s Proposition I works an unconstitutional reallocation of state power by depriving California courts of the ability to grant meaningful relief to those seeking to vindicate the state’s guarantee against de facto segregation in the public schools. Despite Proposition I’s apparent neutrality, it is “beyond reasonable dispute,” [
- ], and the majority today concedes, that “court ordered busing in excess of that required by the Fourteenth Amendment ... prompted the initiation and probably the adoption of Proposition I."[
- ] [
- ] Because “minorities may consider busing for integration to be ‘legislation that is in their interest,”’ [
- ], Proposition I is sufficiently “racial” to invoke the Hunter doctrine.[
- ]
Nor can there be any doubt that Proposition I works a substantial reallocation of
tate power. Prior to the enactment of Proposition I, those seeking to vindicate the rights [to integrated schooling] enumerated by the California Supreme Court in Jackson v. Pasadena City School District (1963), just as those interested in attaining any other educational objective, followed a two-stage procedure. First, California’s minority community could attempt to convince the local school board voluntarily to comply with its constitutional obligation to take reasonably feasible steps to eliminate racial isolation in the public schools. If the board was either unwilling or unable to carry out its constitutional duty, those seeking redress could petition the California state courts to require school officials to live up to their obligations. Busing could be required as part of a judicial remedial order. [
- ]
Whereas Initiative 350 attempted to deny minority children the first step of this procedure, Proposition I eliminates by fiat the second stage: the ability of California courts to order meaningful compliance with the requirements of the state constitution. After the adoption of Proposition I, the only method of enforcing against a recalcitrant school board the state constitutional duty to eliminate racial isolation is to petition either the state legislature or the electorate as a whole. Clearly, the rules of the game have been significantly changed for those attempting to vindicate this state constitutional right.[
- ]
The majority seeks to conceal the unmistakable effects of Proposition I by calling it a “mere repeal” of the State’s earlier commitment to do “‘more’ than the Fourteenth Amendment requires.” [
- ] Although it is true that we have never held that the “mere repeal of an existing [anti-discrimination] ordinance violates the Fourteenth Amendment,’' Hunter v. Erickson, [
- ], it is equally clear that the reallocation of governmental power created by Proposition I is not a “mere repeal’’ within the meaning of any of our prior decisions.
In Dayton Bd. of Education v. Brinkman, 433 U.S. 406 (1977) the new members of the Dayton Board of Education repudiated a resolution drafted by their predecessors admitting the Board’s role in the establishment of a segregated school system and calling for various remedial actions. In concluding that the Board was constitutionally permitted to withdraw its own prior mea culpa, this Court was careful to note that "[t]he Board had not acted to undo operative regulations affecting the assignment of pupils or other aspects of the management of school affairs.” [
- ] (emphasis added). Therefore, the only time that this Court has squarely held that a “mere repeal” did not violate the Fourteenth Amendment, it was presented with a situation where a governmental entity rescinded its own prior statement of policy without affecting any existing educational policy. It is no surprise that such conduct passed constitutional muster.
By contrast, in Seattle, Hunter, and Reitman v. Mulkey, (1967),[
- ] the three times that this Court has explicitly rejected the argument that a proposed change constituted a “mere repeal” of an existing policy, the alleged rescission was accomplished by a governmental entity other than the entity that had taken the initial action, and resulted in a drastic alteration of the substantive effect of existing policy. This case falls squarely within this latter category. To be sure, the right to be free from racial isolation in the public schools remains unaffected by Proposition I. [
- ] But Proposition I does repeal the power of the state court to enforce this existing constitutional guarantee through the use of mandatory pupil assignment and transfer.
The majority asserts that the Fourteenth Amendment does not “require the people of a state to adhere to a judicial construction of their state constitution when that constitution itself vests final authority in the people.” [
- ] A state court’s authority to order appropriate remedies for state constitutional violations, however, is no more based on the “final authority” of the people than the power of the local Seattle school board to make decisions regarding pupil assignment is premised on the State’s ultimate control of the educational process. Rather, the authority of California courts to order mandatory student assignments in this context springs from the same source as the authority underlying other remedial measures adopted by state and federal courts in the absence of statutory authorization: the “courts’ power to provide equitable relief” to remedy a constitutional violation. Swann v. Charlotte-Mecklenburg Board of Education, [
- ] (1970); Crawford I, [
- ]. Even assuming that the source of a court’s power to remedy a constitutional violation can be traced back to “the people,” the majority’s conclusion that “the people” can therefore confer that remedial power on a discriminatory basis is plainly inconsistent with our prior decisions [in Hunter v. Erickson and Seattle]. ... The fact that this change was enacted through popular referendum, therefore, cannot immunize it from constitutional review. [
- ]
As in Seattle, Hunter, and Reitman, Proposition I’s repeal of the state court’s enforcement powers was the work of an independent governmental entity, and not of the state courts themselves. That this repeal drastically alters the substantive rights granted by existing policy is patently obvious from the facts of this litigation.[
- ] By prohibiting California courts from ordering mandatory student assignment when necessary to eliminate racially isolated schools, Proposition I has placed an enormous barrier between minority children and the effective enjoyment of their constitutional rights, a barrier that is not placed in the path of those who seek to vindicate other rights granted by state law. This Court’s precedents demonstrate that, absent a compelling state interest, which respondents have hardly demonstrated, such a discriminatory barrier cannot stand.[
- ]
The fact that California attempts to cloak its discrimination in the mantle of the Fourteenth Amendment does not alter this result. Although it might seem “paradoxical” to some members of this Court that a referendum that adopts the working of the Fourteenth Amendment might violate it, the paradox is specious. Because of the Supremacy Clause, Proposition I would have precisely the same legal effect if it contained no reference to the Fourteenth Amendment. The lesson of Seattle is that a state, in prohibiting conduct that is not required by the Fourteenth Amendment, may nonetheless create a discriminatory reallocation of governmental power that does violate equal protection. The fact that some less effective avenues remain open to those interested in mandatory student assignment to eliminate racial isolation ... does not justify the discriminatory reallocation of governmental decisionmaking. ...
IV
Proposition I is in some sense “better” than the Washington initiative struck down in Seattle.[
- ] In their generosity, California voters have allowed those seeking racial balance to petition the very school officials who have steadfastly maintained the color line at the schoolhouse door to comply voluntary with their continuing state constitutional duty to desegregate. At the same time, the voters have deprived minorities of the only method of redress that has proven effective--the full remedial powers of the state judiciary. In the name of the State’s “ability to experiment,” [
- ] the Court today allows this placement of yet another burden in the path of those seeking to counter the effects of nearly three centuries of racial prejudice. Because this decision is neither justified by our prior decisions nor consistent with our duty to guarantee all citizens the equal protection of the laws, I must dissent.
