The Text of the U.S. Supreme Court's Decision In The Seattle

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The Dissent

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 any other purposes.

In the absence of a constitutional violation, no decision of the Court compels a school district to adopt or maintain a mandatory busing program for racial integration. Accordingly, the Court does not hold that the adoption of a neighborhood school policy of local school districts would be unconstitutional. Rather, it holds that the adoption of such a policy at the State level--rather than at the local level--violates the Equal Protection Clause of the Fourteenth Amendment.

I dissent from the Court's unprecedented intrusion into the structure of a state government. The School Districts in this case were under no Federal Constitutional obli

gation 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." [

  • ] 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. ...


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, does not offend the Fourteenth Amendment. The Court has never held that there is an affirmative duty to integrate the schools in the absence of a finding of unconstitutional segregation. See Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 24 (1971); Dayton Board of Education v. Brinkman, 433 U.S. 406, 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 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. And even where there have been segregated schools, once desegregation has been accomplished no further constitutional duty exists upon school boards or States to maintin 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." [

  • ] The Constitution does not dictate to the States a particular division of authority between legislature and judiciary or between state and local governing bodies. It does not define institutions of local government.

Thus, a State may choose to run its schools from the state legislature or through local school boards just as it may choose to address the matter of race relations at the State or local level. There is no constitutional requirement that the State establish or maintain local institutions of government or that it delegate particular powers to these bodies. The only relevant constitutional limitation on a State's freedom to order its political institutions is that it may not do so in a fashion designed to "[place] special burdens on racial minorities within the governmental process." [

  • ]

In sum, in the absence of a prior constitutional violation, the States are under no constitutional duty to adopt integration programs in their schools, and certainly they are under no duty to establish a regime of mandatory busing. Nor does the Federal Constitution require that particular decisions concerning the schools or any other matter be made on the local as opposed to the State level. It does not require the States to establish local governmental bodies or to delegate unreviewable authority to them.


Application of these settled principles demonstrates the serious error of today's decision--an error that cuts deeply into the heretofore unquestioned right of a State to structure the decisionmaking authority of its government. In this case, by Initiative 350, the State has adopted a policy of racial neutrality in student assignments. The policy in no way interferes with the power of State or Federal Courts to remedy constitutional violations. And if such a policy had been adopted by any of the school districts in this litigation there could have been no question that the policy was constitutional.[

  • ]

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 cancelled its integration program without violating the Federal Constitution. Yet this Court holds that neither the legislature or 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 clssification, and yet must agree that identical action by the Seattle School District itself would have created no such classification. This is not an easy argument to answer because it seems to make no sense. School boards are the creation of supreme State authority, whether in a State Constitution or by legislative enactment. Until today's decision no one would have questioned the authority of a State to abolish school boards altogether, or to require that they conform to any lawful State policy. And in the State of Washington, a neighborhood school policy would have been lawful.

Under today's decision this heretofore undoubted supreme authority of a State's electorate is to be curtailed whenever a school board--or indeed any other state board or local instrumentality--adopts a race specific program that arguably benefits racial minorities. Once such a program is adopted, only the local or subordinate entity that approved it will have authority to change it. The Court offers no authority or relevant explanation for this extraordinary subordination of the ultimate sovereign power of a State to act with respect to racial matters by subordinate bodies. It is a strange notion--alien to our system--that local governmental bodies can forever preempt the ability of a State--the sovereign power--to address a matter of compelling concern to the State. The Constitution of the United States does not require such a bizarre result.

This is certainly not a case where a State--in moving to change a locally adopted policy--has established a racially discriminatory requirement. Initiative 350 does not impede enforcement of the Fourteenth Amendment. If a Washington school district should be found to have established a segregated school system, Initiative 350

will place no barrier in the way of a remedial busing order. Nor does Initiative 350 authorize or approve segregation in any form or degree. It is neutral on its face, and racially neutral as public policy. Children of all races benefit from neighborhood schooling, just as children of all races benefit from exposure to "ethnic and racial diversity in the classroom." Ante, quoting Columbus Board of Education v. Penick, 443 U.S. 449, 486 (1979) (Powell, J., dissenting).

Finally, Initiative 350 places no "special burdens on racial minorities within the governmental process," [

  • ] 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. [
  • ] 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.

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.[

  • ]


Nonetheless, the Court holds that Initiative 350 "imposes substantial and unique burdens on racial minorities" in the governmental process. [

  • ] Its authority for this holding is said to be Hunter v. Erickson.[
  • ] 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 [anti-discrimination] ordinance could take effect.'' [
  • ] 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." [
  • ] 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."

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, it simply does not place unique political obstacles in the way of racial minorities. In this case, unlike in Hunter, the political system has not been redrawn or altered. The authority of the State over the public school system, acting through Initiative or the legislature, is plenary. Thus, the State's political system is not altered when it adopts for the first time a policy, concededly within the area of its authority, for the regulation of local school districts. And certainly racial minorities are not uniquely or comparatively burdened by the State's adoption of a policy that would be lawful if adopted by any School District in the State.

Hunter, therefore, is simply irrelevant. It is the Court that by its decision today disrupts the normal course of State Government.[

  • ] Under its unprecedented theory of a vested constitutional right to local decisionmaking, the State apparently is now forever barred from addressing the perplexing problems of how best to educate fairly all children in a multiracial society where, as in this case, the local school board has acted first.


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 question resulting from extensive mandatory busing.[

  • ] The Constitution does not dictate to the States at what level of government decisions affecting the public schools must be taken. It certainly does not strip the States of their sovereignty. It therefore does not authorize today's intrusion into the State's internal structure.

Throughout this dissent, I use the term "mandatory busing" to refer to busing--or mandatory student reassignments-- for the purpose of achieving racial integration.

See Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 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 Board of Regents v. Bakke, 438 U.S. 265, 300n. 39 (opinion of Powell, J.); Keyes v. School District No. 1, 413 U.S. 189, 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. 252, 272 (1979).

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 the Dallas NAACP, 444 U.S. 437, 451 (1980) (POWELL, J., dissenting).

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. Board of Education of the City of Los Angeles, (1982). As the Court indicates, the busing question is complex and is best resolved by the political process.

Moreover, it is significant that Initiative 350 places no limits on voluntary programs or on court ordered reasignments. It permits school districts to order school closings for purposes of racial balance. And it permits school districts to order a student to attend the "next nearest"--rather than nearest--school to promote racial integration.

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 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 the 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. But this case presents a question, not 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.

Vol. 01, Issue 42

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