Constitutionality of Legislation Limiting the Remedial Powers of the Inferior Federal Courts in School Desegregation Litigation

Constitutionality of Legislation Limiting the Remedial Powers

of the Inferior Federal Courts in School Desegregation

Litigation

Proposed legislative restriction on the power of the inferior federal courts to order busing rem edies in

school desegregation litigation cannot be justified as an exercise of congressional power to enforce

the Fourteenth A m endm ent, if such a restriction would prevent a court from fully rem edying a

constitutional violation.

Proposed legislation can be justified as an exercise of congressional power under A rticle III, § I of the

Constitution, which gives Congress very broad power to control the jurisdiction o f the inferior

federal courts. T he bill does not usurp the judicial function by depriving the lower courts of power

to hear desegregation cases and to im pose rem edies w hich do not involve busing, nor does it

instruct the lower courts how to decide issues of fact in pending cases, or require reversal of any

outstanding court order.

The b ill’s provision prohibiting the Departm ent of Justice from using appropriated funds to bring or

m aintain an action to require busing is constitutional despite the lim itations that it would im pose on

the Executive’s discretion, since it does not preclude the Departm ent from fulfilling its statutory

obligation to enforce the law through seeking other effective rem edies or objecting to inadequate

desegregation plans.

Both the lim itation on courts and on the D epartm ent of Justice should be upheld if challenged under

the equal protection com ponent of the Fifth A m endm ent's Due Process Clause, since neither

lim itation creates a racial classification nor evidences a discrim inatory purpose

May 6, 1982

T he C h a ir m a n o f t h e Com m it t e e o n t h e J u d ic ia r y

U n it e d S t a t e s H o u s e of R e p r e s e n t a t iv e s

D e a r M r . C h a i r m a n : This responds to your request concerning those portions

of S. 951, the Senate-passed version o f the D epartment of Justice appropriation

authorization bill for fiscal year 1982, which relate to the mandatory transporta­

tion of school children to schools other than those closest to their homes

(“busing”).* One of these provisions relates to the remedial powers of the inferior

courts and the other to the authority of the Departm ent of Justice. This letter

discusses the effect of these provisions as well as the policy and constitutional

implications of the provisions as construed. The funding provisions of S. 951

will be addressed in a separate letter by the Assistant Attorney General of the

Office of Legislative Affairs.

♦ N o t e - The relevant portions o f S 951, 97th C ong , 2d S ess., are reprinted at 128 Cong R ec S ) 3 3 6 (daily ed.

M ar 2 , 1982) Ed

i

It is im portant to note at the outset that S. 951 does not withdraw jurisdiction

from the Suprem e C ourt or limit the jurisdiction of the federal courts to decide a

class o f cases. T he provisions o f the bill and its legislative history make clear that

the effect of these provisions relate only to one aspect of the remedial power of the

inferior federal courts— not unlike the N orris-L aG uardia Act, enacted in 1932.

N or do the provisions limit the pow er of state courts or school officials to reassign

students or require transportation to remedy unconstitutional segregation. Care­

ful exam ination o f these provisions indicates that they are constitutional.

I. B using Provisions of S. 951

The first provision, § 2 of the bill, entitled the Neighborhood School Act of

1982, recites five congressional findings to the effect that busing is an inade­

quate, expensive, energy-inefficient, and undesirable remedy. It then states

(§ 2(d)) that, pursuant to Congress’ power under Article III, § 1 and § 5 of the

Fourteenth A m endm ent, “no co u rt of the United States may order or issue any

writ directly or indirectly ordering any student to be assigned or to be transported

to a public school other than that which is closest to the student’s residence

unless” such assignm ent or transportation is voluntary or “reasonable.” The bill

declares that such assignment o r transportation is not reasonable if

(i) there are reasonable alternatives available which involve less

tim e in travel, distance, danger, or inconvenience;

(ii) such assignm ent or transportation requires a student to cross a

school district having the sam e grade level as that of the student;

(iii) such transportation plan or order or part thereof is likely to

result in a greater degree o f racial im balance in the public school

system than was in existence on the date of the order for such

assignm ent o r transportation plan or is likely to have a net harmful

effect on the quality of education in the public school district;

(iv) the total actual daily tim e consumed in travel by schoolbus for

any student exceeds thirty m inutes unless such transportation is to

and from a public school closest to the student’s residence with a

grade level identical to that of the student; or

(v) the total actual round trip distance traveled by schoolbus for

any student exceeds 10 m iles unless the actual round trip distance

traveled by schoolbus is to and from the public school closest to

the student’s residence w ith a grade level identical to that of the

student.

Section 2(f) o f the bill adds a new subparagraph to § 407(a) of Title IV o f the

Civil R ights A ct o f 1964 , 42 U .S .C . § 2000c-6(a), authorizing suits by the

Attorney G eneral to enforce rights guaranteed by the bill if he determines that a

student has been required to attend o r be transported to a school in violation of the

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bill and is otherwise unable to maintain appropriate legal proceedings to obtain

relief. The bill is made “retroactive” in that its terms would apply to busing

ordered by federal courts even if such order were entered prior to its effective

date. Section 16 of the bill supplements these provisions by providing that

“[n]otwithstanding any provision of this Act, the Department of Justice shall not

be prevented from participating in any proceedings to remove or reduce the

requirement of busing in existing court decrees or judgm ents.”

The second provision, § 3( 1)(D), limits the power of the Department of Justice

to bring actions in which the Department would advocate busing as a remedy:

N o part of any sum authorized to be appropriated by this Act

shall be used by the Department of Justice to bring or maintain

any sort of action to require directly or indirectly the transporta­

tion of any student to a school other than the school which is

nearest to the student’s hom e, except for a student requiring

special education as a result o f being mentally or physically

handicapped.

II. General Comments

There appear to be am biguities in the Neighborhood School A ct’s provisions

for suits to be brought by the Attorney General challenging existing decrees. For

example, it is unclear what, if any, obligations are placed on the Attorney General

with regard to court decrees that offend § 2. Since the bill does not purport to

prevent any governmental entities other than federal courts from requiring the

transportation of students, the Attorney G eneral’s review of a com plaint must

include the inquiry whether the transportation is the result of federal court action.

It is difficult to determ ine the party against whom the action is to be brought. The

assignment violates the Neighborhood School Act only if it is required by court

order. Does the Attorney General sue the court? If so, then what relief is

appropriate? Does the bill permit an action against a school board even though its

actions are not the subject of the bill’s prohibition? If a school board is the

defendant, then what relief is appropriate? Does the Attorney General ask that the

school board be enjoined from complying with the court order? Does he ask for a

declaratory judgm ent of the board’s obligations under the order? If the latter is the

case and the board wishes to continue its present assignment patterns, what will

have been accomplished by the lawsuit? These questions illustrate the problems

incident to the provisions that allow for collateral attack on existing decrees.

Serious concern arises also because of the limitation on the Attorney G eneral’s

discretion contained in § 3(1 )(D). This Administration has repeatedly stated its

objection to the use of busing to remedy unlawful segregation in public schools.

See Testimony of W m . Bradford Reynolds, Assistant Attorney G eneral, Civil

Rights D ivision, Before the Subcomm. on Separation of Powers of the Senate

Comm, on the Judiciary, Desegregation o f Public Schools (Oct. 16, 1981). The

express limitation on the D epartm ent’s authority is unnecessary and may inhibit

3

the ability to present and advocate remedies which may be less intrusive and

burdensom e than those being urged on a court by other litigants. Moreover,

because the limitation is imposed only in the D epartm ent’s one-year authoriza­

tion, there is no force to the argum ent that a statutory provision is necessary to

ensure that successive Administrations will also carry out congressional intent.

Finally, to the extent that Congress does intend to effect a long-term substantive

change in the law, the proper vehicle would seem to be permanent substantive

legislation, not an authorization bill which m ust be reviewed annually by Con­

gress and which becom es more difficult to enact and thus less efficient for its

necessary purposes when it is encum bered by extraneous matters.

III. Constitutionality

A . Textual Interpretation of the N eighborhood School Act o f 1982

The N eighborhood School Act restricts the power of inferior federal courts to

issue rem edial busing decrees w here the transportation requirement would ex­

ceed specified limits of reasonableness. That it does not purport to limit the power

of state courts or school boards is amply demonstrated by its text and by

statem ents of its supporters. Senator Hatch, in a colloquy with Senator Johnston,

stated that “this bill does not, however, restrict in any way the authority of State

courts to enforce the Constitution as they wish . . . .” 127 Cong. Rec. S6648

(daily ed. June 22, 1981). On the day that the bill passed the Senate, Senator

Johnston echoed these remarks:

If a school board wants to bus children all over its parish or all

over its county, it is not prohibited from doing so by this amend­

m ent. N or indeed would a State court if it undertook to order that

busing. The legislation deals only with the power of the Federal

courts . . . .

128 C ong. Rec. S1324 (daily ed. March 2, 1982).

The im pact o f the Neighborhood School Act on the federal courts is also

lim ited. It w ithdraw s, in specified circum stances, a single remedy from the

inferior federal courts. The substantial weight of the text and legislative history

supports the proposition that the bill limits the remedial power only of the inferior

federal courts, not the Supreme "Court. There is strong textual support for this

conclusion, because the bill recites that it is enacted pursuant to congressional

power under A rticle III, § 1. Section 1 of Article III provides authority for

lim iting the jurisdiction and the powers of the inferior federal courts, not the

Suprem e Court. The source of congressional authority relative to the jurisdiction

of the Suprem e C ourt is the Exceptions Clause, Art. Ill, § 2, cl. 2. The

conspicuous and apparently intentional omission of that clause as a source of

congressional authority to enact this measure strongly indicates that no restriction

of the Suprem e C ourt appellate jurisdiction was intended.

4

Moreover, there do not appear to be any direct statements in the legislative

history to the effect that any restriction on the Supreme C ourt’s jurisdiction was

intended. To the contrary, there is an explicit colloquy between Senators Hatch

and Johnston indicating that no restriction on Supreme Court jurisdiction was

intended. In response to a question posed by Senator M athias to Senator

Johnston, Senator Hatch stated:

There is little controversy, in my opinion . . . that the constitu­

tional power to establish and dismantle inferior Federal courts has

given Congress complete authority over their jurisdiction. This

has been repeatedly recognized by the Supreme Court . . . .

This amendment would be only a slight modification of lower

Federal court jurisdiction. These inferior Federal courts would

no longer have the authority to use one remedy among many for a

finding of a constitutional violation.

I would hasten to add that this bill does not, however; restrict in

any way . . . the power c f the Supreme Court to review State court

p r o c e e d in g s a n d in su re f u l l e n fo rc e m e n t o f co n stitu tio n a l

guarantees.

In short, this is a very, very narrow amendment. It only

withdraws a single remedy which Congress finds inappropriate

fro m the lower Federal courts.

:f: ^

M R. JOHNSTON. Mr. President, I thank the distinguished

Senator from Utah for his exegesis on the legality, the power of

Congress under article III to restrict jurisdiction.

127 Cong. Rec. S6648-49 (daily ed. June 22, 1981) (emphasis added).

B. Legal Status o f Transportation Remedies

In Brown v. Board o f Education, 349 U .S. 294, 300 (1955) (II), the Supreme

Court held that federal courts must be guided by equitable principles in the design

of judicial remedies for unlawful racial segregation in public school systems.

Under those principles, as the Court has more recently explained, “the rem edy is

necessarily designed, as all remedies are, to restore the victims of discriminatory

conduct to the position they would have occupied in the absence of such

conduct.” M illiken v. Bradley (Bradley 1), 418 U .S. 717, 746 (1974) (I). The

Court has indicated that the principle that justifies judicial discretion to impose

transportation remedies also implies a limitation on that discretion.

The judicial power to impose such remedies “may be exercised only on the

basis of a constitutional violation,” Swann v. Charlotte-M ecklenburg, 402 U.S.

1, 16 (1971), and “a federal court is required to tailor ‘the scope of the rem edy’ ”

5

which included the transportation of students to schools other than the ones

which they had form erly attended, “to fit ‘the nature and the extent of the

constitutional vio latio n ,’ ” Dayton v. Brinkm an, 433 U .S. 406, 420 (1977),

quoting Bradley I, at 744. In other words, reassignment of students and con­

com itant transportation of students to different schools is appropriate only when

it is “ indeed . . . remedial, ” M illiken v. Bradley (Bradley II), 433 U .S. 2 6 7 ,2 8 0

(1977) (em phasis in original), that is, when it is aimed at making available to the

victim s of unlawful segregation a school system that is free of the taint of such

segregation.

The Suprem e C ourt has stated that circum stances might conceivably exist in

w hich the im position of a desegregation remedy which included the transporta­

tion of students to schools other than the ones which they had formerly attended

would be unavoidable in order to vindicate constitutional rights. If school

authorities have segregated public school students by race, they shoulder a

constitutional obligation “ to elim inate from the public schools all vestiges of

state-im posed segregation,” Swann, 402 U .S. at 15. The Court has said that if

this duty cannot be fulfilled without the mandatory reassignment of students to

different schools, with the concom itant requirement of student transportation,

this rem edy cannot be statutorily elim inated. In North Carolina v. Swann, 402

U .S . 43 (1971), the Court overturned a North C arolina statute that proscribed the

assignm ent o f students to any school on the basis of race, “ or for the purpose of

creating a racial balance or ratio in the schools,” and prohibited “ involuntary”

busing in violation of the statutory proscription. The Chief Justice, writing for a

unanim ous C ourt, concluded:

[I]f a state-im posed limitation on a school authority’s discretion

operates to inhibit or obstruct the operation of a unitary school

system or im pede the disestablishing o f a dual school system, it

m ust fall; state policy m ust give way when it operates to hinder

vindication o f federal constitutional guarantees.

* * * * sf:

We likewise conclude that an absolute prohibition against

transportation of students assigned on the basis of race, “or for the

purpose of creating a balance or ratio,” will similarly hamper the

ability o f local authorities to effectively remedy constitutional

violations. As noted in Swann, supra, at 29, bus transportation

has long been an integral part of all public educational systems,

and it is unlikely that a truly effective remedy could be devised

w ithout continued reliance upon it.

402 U .S . at 45—46.

A lthough the C ourt has indicated that some student transportation might be a

necessary incident to a desegregation decree, it has never stated with particularity

what those cases might be, nor has it identified the limitations on busing orders in

cases where transportation is constitutionally required. In Swann v. Charlotte-

M e c k le n b u rg , su p ra , fo r exam ple, the C o u rt declined to provide “ rigid

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guidelines” governing the appropriateness of busing remedies. It stated only that

busing was to be limited by factors of time and distance which would “ either risk

the health of the children or significantly impinge on the educational process.”

402 U.S. at 30-31. Limits on tim e and distance would vary with many factors,

“ but probably with none more than the age of the students.” Id. at 31.

C. Congressional Power Under § 5 o f the Fourteenth Amendment

In light of the Suprem e C ourt’s conclusion that student transportation m ight in

some circumstances be a necessary feature of a remedial desegregation decree, it

is necessary to consider whether the limitation on the power of the inferior federal

courts under the Neighborhood School Act would be justified as an exercise of

congressional authority under § 5 of the Fourteenth Amendment. Section D,

infra, focuses on Congress’ power under Article III, § 1, which is broader in this

context than § 5.

Section 5 provides that Congress “ shall have power to enforce, by appropriate

legislation, the provisions of” the Fourteenth Amendment, including the Equal

Protection Clause, which has been held to guarantee all students a right to be free

of intentional racial discrim ination or segregation in schooling. Brown v. Board

c f Education, 347 U .S. 483(1954). The question is whether congressional power

to enforce that right by appropriate legislation includes authority to limit the

power of the lower federal courts to award transportation remedies generally and

specifically in those cases in which some transportation is necessary fully to

vindicate constitutional rights.

The cases o f K atzenbach v. M organ, 384 U .S . 641 (1966); O regon v.

Mitchell, 400 U.S. 112 (1970); City c f Rome v. United States, 446 U .S. 156

(1980); and Fullilove v. Klutznick, 448 U.S. 448 (1980) (plurality opinion),

firmly establish that the § 5 power is a broad one. Congress may enact statutes to

prevent or to rem edy situations which, on the basis of legislative facts, Congress

determines to be violative of the Constitution. At the same time, these cases

rather firmly establish that Congress is without power under § 5 to revise the

C ourt’s constitutional judgm ents if the effect of such revision is to “ restrict,

abrogate, or dilute” Fourteenth Amendment guarantees as recognized by the

Supreme Court.

The limitation on busing rem edies contained in the Neighborhood School Act

would be authorized under § 5 o f the Fourteenth A mendment to the extent that it

does not prevent the inferior federal courts from adequately vindicating constitu­

tional rights. The grant of power under § 5 to “ enforce” the Fourteenth Am end­

ment carries with it subordinate authority to determine specific methods by

which that am endm ent is to be enforced. As an incident of its enforcement

authority, therefore, Congress may instruct the lower federal courts not to order

mandatory busing in excess of the § 2(d) limits, so long as the court retains

adequate legal or equitable powers to remedy whatever constitutional violation

may be found to exist in a given case.

Moreover, federal and state courts would probably pay considerable deference

to the congressional factfinding upon which the bill is ultimately based in

7

determ ining the scope of constitutional requirements in this area. The Court has

stated that, so long as it can “ perceive a basis” for the congressional findings,

K atzenbach v. M organ, 384 U .S . at 653, it will uphold a legislative determina­

tion that a situation exists which either directly violates the Constitution or

w hich, unless corrected, will lead to a constitutional violation. Similar deference

would be appropriate for findings under this bill, notwithstanding the somewhat

lim ited hearings which were held and the absence of printed reports. It does not

appear that any particularized research was presented to the Senate which might

have supported or undermined the specific limitations on federal court decrees

contained in § 2(d) o f S. 951. It is likely, however, that the time and distance

lim itations contained in § 2(d) o f the bill would serve as legitimate benchmarks

for federal and state courts in the future in devising appropriate decrees. To this

extent, the exercise of congressional power under § 5 would be fully proper and

effective.

N or does it appear that the Neighborhood School Act would be interpreted to

“ d ilu te” Fourteenth Amendment rights merely because it denies a certain form

of relief in the inferior federal courts or includes certain retroactivity provisions

in §§ 2 (0 and (g). Congress cannot, under § 5, prohibit a federal district court

from granting a litigant all the relief that the Fourteenth Amendment requires.

M oreover, the state courts would remain open to persons claiming unconstitu­

tional segregation in education after this bill becomes law, and would be em ­

powered— indeed, required—to provide constitutionally adequate relief.

U nder § 5 C ongress cannot im pose mandatory restrictions on federal courts in

a given case where the restriction would prevent them from fully remedying the

constitutional violation. Congressional power to enforce the Fourteenth Amend­

m ent is not a pow er to determine the limits of constitutional rights. Although it

includes the power to limit the equitable discretion of the lower federal courts to

im pose rem edial measures which are not necessary to correct the constitutional

violation, the courts must retain remedial authority sufficient to correct the

violation. And although Congress can express its view through factfinding, but

subject to the limitations set forth in § 2(d) of the bill, that busing is an ineffective

rem edial tool and that extensive busing is not necessary to remedy a constitu­

tional violation, it is ultimately the responsibility of the courts to determine, after

giving due consideration to the congressional findings contained in this bill,

w hether in a given case an effective remedy requires the use of mandatory busing

in excess of the limitations set forth in § 2(d) o f the bill.

In sum , C ongress, pursuant to § 5, can: (1) limit the authority of federal

district courts to require student transportation where it is not required by the

C onstitution; and (2) adopt guidelines, based on legislative factfinding, as to

w hen busing is effective to rem edy the violation, which guidelines will tend to

receive substantial deference from the courts. Section 5 does not, however,

authorize C ongress to preclude the inferior federal courts from ordering man­

datory busing w hen, in the judgm ent of the courts, such busing is necessary to

rem edy a constitutional violation. This authority must be found, if at all, in the

8

power of Congress under Article 111, § 1 to restrict the jurisdiction of the lower

federal courts.

D. Congressional Power Under Article III, § I

Congress’ authority to limit the equitable powers of the inferior federal courts

has been repeatedly recognized by the Supreme Court. Article 111, § 1 of the

Constitution provides that “ [t]he judicial Power of the United States, shall be

vested in one suprem e Court, and in such inferior Courts as the Congress may

from time to tim e ordain and establish.” See also U .S. Const. Art. 1, § 8, cl. 9

(giving Congress power to “ constitute Tribunals inferior to the supreme C ourt” ).

It seems a necessary inference from the express decision of the Framers that the

creation of inferior courts was to rest in the discretion of Congress that, once

created, the scope of the court’s jurisdiction was also discretionary. The view

that, generally speaking, Congress has very broad control over the inferior

federal court jurisdiction was accepted by the Supreme Court in Cary v. Curtis,

44 U.S. (3 How.) 236 (1845), and Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850).

That view rem ains firmly established today.

Congress’ power over jurisdiction has been further recognized, most notably

in cases under the N orris-LaG uardia Act, to include substantial power to limit

the remedies available in the inferior federal courts. In L a u f\. E .G . Shinner &

C o., 303 U.S. 323, 330 (1938), the C ourt upheld provisions of the N orris-

LaGuardia Act which imposed restrictions on federal court jurisdiction to issue

restraining orders or injunctions in cases growing out of labor disputes. In two

cases under the Emergency Price Control Act of 1942, the Supreme Court

recognized the power of Congress to withdraw certain cases from the jurisdiction

of the inferior federal courts and to prohibit any court from issuing temporary

stays or injunctions. See Lockerty v. Phillips, 319 U .S. 182 (1943); Yakus v.

United States, 321 U .S. 414 (1944).

The provisions of the Neighborhood School Act appear to be firmly grounded

in Congress’ Article III, § 1 power, as interpreted in Lauf, Lockerty, and Yakus, to

control the inferior federal court jurisdiction. The bill does not represent an

attempt by Congress to use its power to limit jurisdiction as a disguise for

usurping the exercise of judicial power. The bill does not instruct the inferior

federal courts how to decide issues o f fact in pending cases. See United States v.

Klein, 80 U .S. (13 Wall.) 128 (1872).

N or does the bill usurp the judicial function by depriving the inferior federal

courts of their power to issue any remedy at all. The bill does not withdraw the

authority of inferior federal courts to hear desegregation cases or to issue busing

decrees, so long as they comport with the limitations in § 2(d) of S. 951. This

limited effect on the court’s remedial power does not convert the judicial power—

to hear and decide particular cases and to grant relief— into the essentially

legislative function of deciding cases without any power to issue relief affecting

individual legal rights or obligations in specific cases. Whatever implicit lim ita­

9

tions on Congress’ power to control jurisdiction might be contained in the

principle of separation of powers, they are not exceeded by this bill, which does

not withdraw all effective remedial power from the inferior federal courts.

N either the text of the bill nor the legislative history appears to support the

conclusion that the bill requires an automatic reversal of any outstanding court

order that im posed a busing rem edy beyond the limits specified in the bill. Such

an attem pt to exert direct control over a court order would raise constitutional

problem s associated with legislative revision of judgm ents. E .g., Hayburn's

Case, 2 U .S. (2 D ali.) 409 (1792) (on petition for mandamus). The “retroactive”

effect is felt instead through a change in the substantive law, in this case the law of

rem edies, to be applied by courts in determ ining whether to impose or to revise a

busing remedy, coupled with the grant of authority to the Attorney General to

seek relief on behalf o f a student transported in violation of the Act. Upon the

Attorney G eneral’s application, the court would itself determine whether the

busing rem edy was consistent w ith the Act. T he bill, therefore, does no more

than require the court to apply the law as it would then exist at the time of its

decision in a “ pending” case. S ee The Schooner Peggy, 5 U .S. (1 Cranch) 103

(1801).

The busing rem edy is “ pending” and not final to the extent that the court has

retained jurisdiction over the case or the order is otherwise subject to modifica­

tion by the court in the exercise of its equity jurisdiction. See United States v.

S w ift & C o., 2 8 6 U .S . 106, 114—15(1932). Prior to or in the absence of relief by

the court from a previously imposed busing order, the parties before the court

would be required to continue to perform pursuant to the court’s order. Cf.

Pennsylvania v. W heeling & Belm ont Bridge C o ., 5 9 U .S .(1 8 How.) 421 (1856).

E. C onstitutionality c f § 3(1 )(D)

Section 3(1 )(D) o f the bill prohibits the Department of Justice from using any

appropriated funds to bring or maintain any action to require, directly or

indirectly, virtually any busing o f school children. The D epartm ent’s authority to

institute litigation under Title IV of the Civil Rights Act of 1964, 42 U .S .C .

§ 2000c-6, against segregated school systems would not be diminished. Nor

would the federal courts, under this section, be limited in their power to remedy

constitutional violations. The effect of § 3(1)(D) is only to prohibit the Depart­

m ent in the litigation in which it is involved from seeking, directly or indirectly, a

busing remedy. If the language and legislative history of the bill, as finally

enacted, support this interpretation, it would appear that § 3(1)(D) would be

upheld despite the limitations that it would im pose on the discretion currently

possessed by the Executive Branch.

T he lim itation would restrict the litigating authority presently conferred upon

the D epartm ent by Title IV to seek all necessary relief to vindicate the constitu­

tional rights at stake. At least in cases that do not involve the use of federal funds

by segregated school systems, the Executive’s authority may be restricted to this

lim ited extent. Because the restriction does not entirely preclude enforcement

10

actions by the United States, § 3 (l)(D ) does not impermissibly limit the E x­

ecutive’s “ inherent” authority to remedy constitutional violations, to the extent

recognized in United States v. City c f Philadelphia, 644 F.2d 187 (3d Cir. 1980),

or N ew York Tim es Co. v. U nited States, 403 U .S. 713, 741—47 (1971)

(M arshall, J., concurring). And because the restriction applies only to one

remedy and does not preclude the Department from seeking other effective

remedies or prevent the Executive from objecting to inadequate desegregation

plans, § 3( 1)(D) does not exceed the congressional power over the enforcem ent

authority that is granted.

Where federal funds are provided, § 3( I )(D) would be constitutional if read to

preserve the governm ent’s ability to fulfill its Fifth Amendment obligations by

initiating antidiscrimination suits, restricting only, and in a very limited fashion,

the D epartm ent’s participation, by seeking a busing order, in the remedial phase

of such suits. The Department would be authorized to seek alternative remedies

and to com m ent on the sufficiency of these alternatives. If the alternative

remedies to busing are inadequate in a particular case to vindicate the rights at

stake, the court would retain authority, subject, o f course, to the Neighborhood

School Act provisions, to order a transportation remedy. The Department could

be asked to com m ent on the sufficiency of this remedy if ordered by the court.

Moreover, § 3(1 )(D) would not appear to disable the Department of Justice

from seeking a court order foreclosing the receipt of federal funding by schools in

unconstitutionally segregated school systems in those cases, if any, where the

court was prevented by the limits contained in the Neighborhood School Act

from issuing an adequate remedy and the administrative agency was precluded

from terminating federal funds. See Brown v, Califano, 627 F.2d 1221 (D.C. Cir.

1980).

F. Due Process Clause

Finally, both the limitation on the courts under the Neighborhood School Act

and on the D epartment of Justice under § 3( 1)(D) should be upheld if challenged

under the equal protection component of the Fifth Amendm ent’s Due Process

Clause, see Bolling v. Sharpe, 347 U .S. 497 (1954), as a deprivation of a judicial

remedy from a racially identifiable group. These provisions neither create a racial

classification nor evidence a discriminatory purpose. Absent either of these

constitutional flaws, the provisions will be upheld if they are rationally related to

a legitimate government purpose. See Harris v. M cRae, 448 U.S. 297 (1980).

As the law has developed, the courts will review statutory classifications

according to a “ strict scrutiny” standard either if they create a racial or other

“ suspect” classification, e .g .. H unter v. Erickson, 393 U.S. 385 (1969), or if

they reflect an invidious discriminatory purpose. E .g ., Village o f Arlington

Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977);

Washington v. D avis, 426 U.S. 229 (1976); cf. City o f M obile v. Bolden, 446

U.S. 55 (1980) (plurality opinion). Satisfaction of the strict scrutiny standard

requires a classification that is narrowly tailored to achieve a compelling govem-

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m ental interest. N either basis for invoicing strict scrutiny appears to be applicable

here.

First, these provisions, unlike the provision found unconstitutional in H unter

v. Erickson, supra, do not contain a racial classification. Mandatory busing for

the purpose of achieving racial balance is only one of the circumstances in which

student transportation is placed o ff limits to Justice Department suits or district

court orders. The proposals prohibit Justice D epartment suits or court orders for

the transportation of students specified distances or away from the schools nearest

their hom es for any reason. Moreover, a racial classification would not result even

if these provisions limited advocacy or ordering of mandatory busing only to

achieve racial integration. The issue o f what sorts of remedies the Justice

D epartm ent should advocate or the federal district courts should order simply

does not split the citizenry into discrete racial subgroups. Cf. Personnel Adm in­

istrator v. Feeney, 442 U.S. 256 (1979).

S econd, there appears to be no evidence of purposeful discrimination. W hat­

ever m ight be the arguable impact on racial m inorities, the legislative history to

date contains no suggestion o f an invidious discriminatory purpose. To the

contrary, the sponsors and supporters of these measures endorsed the decision in

Brown v. B oard o f Education, 347 U.S. 483 (1954), and repeatedly stated their

abhorrence of de ju re segregation in schooling. The proponents rest their support

o f this legislation on the conclusion that busing has been destructive not only of

quality education for all students but also of the goal of desegregation. Even the

opponents of the bill did not suggest that any invidious purpose was present.

Accordingly, the bill will not be subject to review under the strict scrutiny

standard. Instead, the bill will be reviewed, and upheld, under the principles of

equal protection, if it is rationally related to a legitimate governmental purpose.

This test is a highly deferential one. It is reasonably clear that the defects in

busing noted by the proponents o f the bill and discussed above would suffice to

satisfy the m inim um rationality standard. Moreover, the proponents of these

provisions advanced other rationales to support the measure, including that

m andatory busing is an excessive burden on the taxpayer; that it wastes scarce

petroleum reserves; and that education is a local matter that should be adm in­

istered on a local level. These reasons appear to be legitimate governmental

purposes, and the busing restrictions appear to be rationally related to these

purposes.

It should be noted in closing that these conclusions are predicated in substan­

tial part on the legislative history of this bill to date. Subsequent history in the

H ouse or thereafter could well affect these views.

Sincerely,

W il l ia m F r e n c h S m it h

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